"Proactive bailout"?
Rick Hasen writes on his Election Law blog: I have been advocating a proactive bailout amendment for VRA renewal that I think can increase the chances that a renewed VRA passes constitutional muster without weakening the important protections of section 5. Rep. Lynn Westmoreland will be offering this amendment on proactive bailout today to the House Rules Committee. That committee will determine if the amendment gets offered on the floor of the House during the vote on VRA renewal on Thursday. His office also has issued this explanation of the proposed amendment. -- Election Law: Hasen: Proactive Bailout Amendment to Be Offered in House Rules Committee
I commented to Rick: The problem with "proactive" bailout provisions such as Westmoreland proposes is the lack of understanding about who has the most opportunity, ability, and incentive to gather evidence proving the matters called for by the bailout provision.
Take a look at the bailout requirement found in Section 4(a) of the VRA. Four requirements (A-C and E) are matters that can be found in the AG's files. Paragraph D requires the jurisdiction to show that it has not made any change that has not been submitted. How is the AG going to know that unless the Voting Section conducts an audit of every law, every regulation, every administrative bulletin implemented since 1964, 1968, or 1972? Paragraph F requires proof of the jurisdiction's affirmative steps beyond the prohibitions of Section 5 "changes" to have made things better for minorities. Again, how will the DOJ know this without doing a fact-intensive investigation "on the ground"?
I have been involved with some preclearance requests on behalf of jurisdictions. I know it is tough just trying to get some small places to find all the election procedures they changed so we can tell the DOJ that previous practices have all been precleared.
Rick responded: I think your argument proves my point. A proactive bailout proposal shifts the incentive to the DOJ (or rather, mandates the DOJ) to work in gathering this information. I want the DOJ to conduct those audits, with the cooperation of the local jurisdiction. If a local jurisdiction does not want to cooperate with a fact intensive investigation that DOJ conducts, then the jurisdiction will remain covered.
Now perhaps the argument is that DOJ doesn't have the resources to do this. If that's right, then give DOJ more resources in the VRA bill. And if the argument is that it would take longer than a year to go through all the jurisdictions, then the amendment could be reworked to require DOJ to begin with those jurisdictions that appear most likely to be able to bailout, and to complete a review within three years of the Act of all jurisdictions.
Gerry Hebert (a/k/a Mr. Bailout) commented on the Campaign Legal Center Blog: I doubt seriously that the Attorney General has the staff or resources to undertake the investigations contemplated by Rick’s proposal. Like the proposals to extend Section 5 nationwide, they would tax the DOJ resources beyond the breaking point.
My final comment (for now): How large a swarm of federal officials will it take to "proactively" demand to see the records of all the myriad of governments we have in the VRA-covered jurisdictions? Of course, they will all be nice and say, "I'm from the government, and I'm here to help you." Take Alabama for example. It had in 1997 67 county governments, 127 school boards (70+ of which were popularly elected), and 446 municipalities, according to the 1997 Governments Integrated Directory online query system.
After they get through with that, will they proactively come around and do my taxes for me? Or better yet, for you?