Bailouts of Covered Jurisdictions Continue As Supreme Court Considers Voting Rights Act Challenge


This week additional jurisdictions continued to move forward with bailouts from the preclearance provisions of the Voting Rights Act at a time when the U.S. Supreme Court is considering a challenge to the constitutionality of those provisions.  Yesterday, a three-judge court in Washington, DC approved a final consent decree exempting the City of Falls Church, Virginia (along with the Falls Church City Public School District) from the Act’s preclearance provisions.  Today, the Justice Department also announced that it had reached agreement on a bailout with Yuba County Water Agency in California and submitted a proposed consent decree for approval to a three-judge court in the U.S. District Court for the District of Columbia. 

The preclearance provisions, known as Section 5 of the Voting Rights Act, are being challenged in a case currently being weighed by the U.S. Supreme Court,Shelby County, AL v. United States,.  The covered jurisdictions, including all or parts of fifteen states predominantly in the Deep South with long histories of discrimination against minority voters, must seek preclearance before changing any election practice or procedure, such as moving polling locations or altering voting districts.  However, if jurisdictions, like Falls Church, the Yuba County Water Agency and others can demonstrate that they have maintained a clean record of voting practices for a decade and undertaken additional steps to ensure non-discriminatory voting procedures, they may “bail out” of this preclearance requirement.

In the Shelby County case, which was argued before the Supreme Court in February, critics of Section 5 argued in a number of briefs that the process to achieve a bailout is far too arduous and cost-prohibitive.  That claim is just flat wrong.  In addition to Falls Church and the Yuba County Water Agency, the City of Wheatland, California bailed out last month, the State of New Hampshire bailed out in March and California’s Browns Valley Water District bailed out in January.  On top of dozens of previous bailouts, a number of other jurisdictions are currently awaiting court approval of their bailouts, including Hanover County (Virginia) and Linda County Water District in California.  Since 2009 (the year of the Supreme Court’s decision in the NAMUDNO case), more than twice as many political subdivisions have bailed out (140) than in the entire period from 1982 to 2009 (69).

“As more and more of these bailouts are cleared by the court, the argument that the process is too arduous and too expensive rings more and more hollow,” said Campaign Legal Center Executive Director J. Gerald Hebert, who serves as legal counsel to both Falls Church and the Yuba County Water Agency in his capacity as a solo practitioner.  “There could be no more convincing argument than this ever-growing list of successful bailouts to prove that the coverage formula self-tailors, and therefore Section 5 coverage adjusts to current needs required to protect the franchise.  The Voting Rights Act is not just a page torn from the history books; it remains today a vital safeguard of every citizen’s right to vote.  The City of Falls Church and the Yuba County Water Agency, like other bailed out state and local governments before them, have shown to the courts that these additional safeguards are no longer necessary to protect the franchise in their jurisdictions, which sadly cannot be said of some covered jurisdictions as has been proven time and again in the courts in recent years.”

To read the consent judgment and decree for Falls Church, Virginia, click here.

To read the Joint Motion to Enter a Consent Judgment and Decree in the Yuba County Water Agency case, click here

To read a proposed Consent Judgment and Decree in the Yuba County Water Agency case, click here.

The Campaign Legal Center filed a friend of the Court brief in Shelby County v. United States.  To read the brief, click here.