Lawyers' Committee for Civil Rights Under Law
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Tel: 202-662-8600
Fax: 202-783-5130

Voting Rights Project

Bailout of Jurisdictions from Special Provisions of the Voting Rights Act

I. What is the bailout procedure?
Section 5 of the Voting Rights Act requires that certain states and their subdivisions submit any change in a voting practice to the U.S. Department of Justice or a three-judge federal district court in the District of Columbia before that new voting practice can be used or enforced. Section 5 of the Voting Rights Act covers the following states: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia and parts of the following: California, Florida, Michigan, New Hampshire, New York City, North Carolina, and South Dakota.

Bailout is a procedure by which a city or county seeks to end its coverage under Section 5 of the Voting Rights Act. If a city or county under the Voting Rights Act succeeds in bailing out, it is no longer covered by section 5 of the Act and has the power to employ test or devices in determining a personas eligibility to vote in any Federal, State, or local election.

The term test or device means any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by voucher or registered voters or members of any class.

Test or device can also mean any practice by which a city or county provide any registration or voting information relating to the electoral process only in English, where the Director of Census determines that more than 5% of the citizens of voting age residing in that city or county are members of a single language minority.

To bailout a city or county must file lawsuit for a declamatory judgment in the US District Court for the District of Columbia. The lawsuit is heard and determined by a court of three judges and any appeal shall lie to the Supreme Court. In a bailout suit, the city or county is the Plaintiff and the US Attorney General is the Defendant, seeking to show why the district court should or should not permit the particular city or county to bailout.

II. What does a city or county have to prove in order to bailout from the provisions of the Voting Rights Act?
In a bailout lawsuit, the city or county wanting to bailout has the burden of proof. Consequently, the city or county must prove that pre-clearance of its proposed voting changes under section 5 is no longer necessary to ensure that voting rights are protected from unlawful discrimination within its jurisdiction. Specifically, the city or county must show that during the ten years preceding the filing of the bailout suit and while the suit is pending:

1. It has not used a test or device that has a discriminatory purpose or effect as a precondition to registering or voting;
2. No court in the US has issued a final judgment against the city or county for voting discrimination;
3. There has been full compliance with section 5 of the Voting Rights Act, including timely pre-clearance of voting changes before they are implemented, and no implementation of any change to which an objection has been entered before the court or a declamatory judgment was denied;
4. The Attorney General has not issued an objection to a proposed voting change and no declamatory judgment has been denied under section 5 by the US District Court for the District of Columbia, and
5. No Federal examiners were assigned to the city or county under subchapters I-A to I-C of the Voting Rights Act to enforce voting laws.

The five points listed above are relatively easy to prove or disprove. In addition, in order to bailout a city or county must also meet three other standards which are more flexible.

First, it must show that it has not engaged in other discriminatory practices prohibited by the law, unless it can be shown that such practices were promptly corrected and were not repeated.

Second, the city or county must show that it has taken constructive steps to increase minority access to the political process. For example, such steps would removing barriers to registration and voting, eliminating intimidation and harassment of minority voters, increasing registration opportunities for minorities, removing voting practices that inhibit or dilute access to the political process, and appointing minorities to key positions in the electoral process.

Finally, the city or county must show that there has been an increase in minority political participation. This would include evidence of increased voting and registration rates for minorities over time and evidence of a decrease in disparities in registration and voting rates between minorities and non minorities. No particular level of minority participation is required under the act, but evidence of increased registration and voting rates may be necessary to show improvement in minority political participation.

III. What evidence can city groups used to stop a bailout procedure?
Although the US Attorney General is the defendant in a bailout suit, community groups or minority citizens in the affected city or county have a right to participate at any stage of the bailout proceeding. In particular, they can show why the city or county should or should not bail out. To help ensure that citizens are aware that a city or county is seeking to bail out, the law requires that the city or county publicize its intent and any proposed bailout settlement in the local media and in appropriate United States post offices.

Citizens or community groups who may want to intervene in a bailout proceeding can provide the Attorney General with useful information to determine whether a city or county should be permitted to bail out. For example, they may know of voting changes that were not submitted for pre-clearance, voting practices that are used which limit minority access to the political process, or any other information which is critical in determining whether a jurisdiction can bail out. Citizen groups may have information which relates either to the five objective factors or the three flexible ones. Thus, citizens or community groups who have information they believe will be useful should immediately contact the US Assistant Attorney General for Civil Rights.

Citizen groups may also be allowed to intervene as parties to oppose bailout. They will have to have their own attorney to do this. A group wishing to oppose bailout should contact either local counsel or a non-profit group such as the Lawyers' Committee for Civil Rights Under Law, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund, or the NAACP Legal Defense and Educational Fund as a quickly as possible. A delay in moving to intervene in the suit may be fatal to the groups objection.

Even if city or county succeeds in bailing out, the court retains jurisdiction over the bailout for 10 years after the judgment. If voting rights violations occur within that 10 year period, the Attorney General or any aggrieved citizen can petition the court to place the city or county under the special provisions again. Hence, it is important for community groups to notify the US Assistant General for Civil Rights if there is any evidence of voting rights violations even after their city or county has bailed out.

For additional information, please contact the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law.

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