- Section 4 of the Voting Rights Act
- The formula for coverage under Section 4 of the Voting Rights Act
- Terminating coverage under the Act's special provisions (bail-out)
When Congress enacted the Voting Rights Act of 1965, it determined that racial discrimination in voting had been more prevalent in certain areas of the country. Section 4(a) of the Act established a formula to identify those areas and to provide for more stringent remedies where appropriate. The first of these targeted remedies was a five-year suspension of "a test or device," such as a literacy test as a prerequisite to register to vote. The second was the requirement for review, under Section 5, of any change affecting voting made by a covered area either by the United States District Court for the District of Columbia or by the Attorney General. The third was the ability of the Attorney General to certify that specified jurisdictions also required the appointment of federal examiners. These examiners would prepare and forward lists of persons qualified to vote. The final remedy under the special provisions is the authority of the Attorney General to send federal observers to those jurisdictions that have been certified for federal examiners.
Section 4 also contains several other provisions, such as Section 4(e) and Section 4(f), that guarantee the right to register and vote to those with limited English proficiency. Section 4(e) provides that the right to register and vote may not be denied to those individuals who have completed the sixth grade in a public school, such as those in Puerto Rico, where the predominant classroom language is a language other than English. In Section 4(f), the Act addresses the ability of those persons who are members of language minority groups identified in Section 4(f)(2), to register and vote as well as to get information relating to the electoral process in a manner that will ensure their meaningful participation in the electoral process.
As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.
The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In "partially covered" states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.
In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to expire that year, and renewed them for another five years. It added a second prong to the coverage formula, identical to the original formula except that it referenced November 1968 as the relevant date for the maintenance of a test or device and the levels of voter registration and electoral participation. This addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states (Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits.
In 1975, the Act's special provisions were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups," which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before, Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing any election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.
In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years.
Section 4 also provides that a jurisdiction may terminate or "bailout" from coverage under the Act's special provisions. Originally enacted in 1965 as a means to remedy any possible over inclusiveness resulting from application of the trigger formula, Congress amended this procedure in 1982 so jurisdictions that meet the statutory standards can obtain relief. The amendment, which took effect on August 5, 1984, establishes an "objective" measure to determine whether the jurisdiction is entitled to "bailout".
A jurisdiction seeking to "bailout" must seek a declaratory judgment from a three-judge panel in the United States District Court for the District of Columbia. On June 22, 2009, the Supreme Court held that any jurisdiction currently required to make Section 5 submissions may seek to "bailout" from coverage if it meets the statutory criteria set forth below.
The successful "bailout" applicant must demonstrate that during the past ten years:
- No test or device has been used within the jurisdiction for the purpose or with the effect of voting discrimination;
- All changes affecting voting have been reviewed under Section 5 prior to their implementation;
- No change affecting voting has been the subject of an objection by the Attorney General or the denial of a Section 5 declaratory judgment from the District of Columbia district court;
- There have been no adverse judgments in lawsuits alleging voting discrimination;
- There have been no consent decrees or agreements that resulted in the abandonment of a discriminatory voting practice;
- There are no pending lawsuits that allege voting discrimination; and
- Federal examiners have not been assigned;
- There have been no violations of the Constitution or federal, state or local laws with respect to voting discrimination unless the jurisdiction establishes that any such violations were trivial, were promptly corrected, and were not repeated.
Before being allowed to "bailout", the jurisdiction must have eliminated those voting procedures and methods of elections that inhibit or dilute equal access to the electoral process. It also must demonstrate that it has made constructive efforts to eliminate intimidation and harassment of persons seeking to register and vote and expand opportunities for voter participation, such as opportunities for registration and voting, and to appoint minority officials throughout the jurisdiction and at all levels of the stages of the electoral process. The jurisdiction must also present evidence of minority electoral participation.
In addition, these requirements apply to all governmental units within the geographical boundaries of the jurisdiction. Thus, if a county is seeking to "bailout", it must establish each criteria for every city, town, school district, or other entity within its boundaries.
The jurisdiction seeking "bailout" must publicize the intended commencement and any proposed settlement of the action; any aggrieved party may intervene in the litigation. After the granting of a declaratory judgment, the statute requires a ten-year "recapture" period. During this time, the district court may reopen proceedings should the jurisdiction engage in any conduct that would have prevented the jurisdiction from bailing out in the first instance. Under such circumstances, the district court will review the evidence and determine whether to reinstate coverage.
The Attorney General is also authorized to consent to an entry of judgment granting the "bailout" if the Attorney General concludes after investigation that the jurisdiction has complied with all of these requirements. Prior to actually filing a petition with the District of Columbia court, any jurisdiction interested in seeking "bailout" may submit a request to the Attorney General with supporting documentation and evidence. Upon receipt, the Voting Section of the Civil Rights Division will undertake an investigation to determine whether the Attorney General would be willing to enter into a consent decree or would oppose the "bailout" petition. If the Attorney General determines that consent to an entry of judgment is proper, the Voting Section will work with the jurisdiction to agree on the terms of the consent decree to be filed with the "bailout" petition when the litigation is actually filed.
The following jurisdictions were once subject to Section 5 of the Voting Rights Act, but have successfully obtained a declaratory judgment under Section 4 of the Voting Rights Act, and are currently bailed out. The date listed below is the date on which these jurisdictions were granted a declaratory judgment allowing them to bail out. Also included below are some examples of a stipulation of facts and consent decree in several bailout cases.
Wake County, North Carolina - January 23, 1967
Curry, McKinley and Otero Counties, New Mexico - July 30, 1976
Towns of Cadwell, Limestone, Ludlow, Nashville, Reed, Woodland, Connor, New Gloucester, Sullivan, Winter Harbor, Chelsea, Sommerville, Carroll, Charleston, Webster, Waldo, Beddington, and Cutler, Maine - September 17, 1976
Choctaw and McCurtain Counties, Oklahoma - May 12, 1978
Campbell County, Wyoming - December 17, 1982
Towns of Amherst, Ayer, Belchertown, Bourne, Harvard, Sandwich, Shirley, Sunderland, and Wrentham, Massachusetts - September 29, 1983
Towns of Groton, Mansfield, and Southbury, Connecticut - June 21, 1984
El Paso County, Colorado - July 30, 1984
Honolulu County, Hawaii - July 31, 1984
Elmore County, Idaho - September 22, 1966; July 31, 1984
Frederick County, Virginia, including the Frederick County School Board the Towns of Middletown and Stephens City; and the Frederick County Shawneeland Sanitary District - September 9, 1999
Stipulation of Facts Consent Decree
Shenandoah County, Virginia including the Shenandoah County School Board, the Towns of Edinburg, Mount Jackson, New Market, Strasburg, Toms Brook, and Woodstock, the Stoney Creek Sanitary District, and the Toms Brook-Maurertown Sanitary District - October 15, 1999
Stipulation of Facts Consent Decree
Rockingham County, Virginia, including the Rockingham County School Board and the Towns of Bridgewater, Broadway, Dayton, Elkton, Grottoes, Mt. Crawford, and Timberville - May 24, 2002
Stipulation of Facts Consent Decree
Northwest Austin Municipal Utility District Number One, Texas - November 3, 2009
City of Kings Mountain, North Carolina - October 22, 2010
City of Sandy Springs, Georgia - October 26, 2010
Jefferson County Drainage District Number Seven, TX - June 6, 2011
Alta Irrigation District, CA - July 15, 2011
City of Manassas Park, VA - August 3, 2011
Rappahannock County, VA, including the Rappahannock County School Board and the Town of Washington - August 9, 2011
Bedford County, VA, including the Bedford County School Board - August 30, 2011
City of Bedford, VA - August 31, 2011
Culpeper County, VA, including the Culpeper County School Board and the Town of Culpeper - October 3, 2011
James City County, VA - November 9, 2011
City of Williamsburg, VA, including the Williamsburg-James City County School Board - November 28, 2011
King George County, VA, including the King George County School Board - April 5, 2012
Prince William County, VA, including the Prince William County School Board and the Towns of Dumfries, Haymarket, Occoquan, and Quantico - April 10, 2012
City of Pinson, AL - April 20, 2012
Wythe County, VA, including the County School Board and the Towns of Rural Retreat and Wytheville - June 18, 2012
Grayson County, VA, including the County School Board and the Towns of Independence, Fries and Troutdale - July 20, 2012
Merced County, CA, including some 84 other governmental units - August 31, 2012
Craig County, VA, including the Craig County School District and the Town of New Castle - November 29, 2012
Carroll County, VA, including the Carroll County School District and the Town of Hillsville - November 30, 2012
Browns Valley Irrigation District in Yuba County, CA - February 4, 2013
Towns of Antrim, Benton, Boscawen, Millsfield, Newington, Pinkham's Grant, Rindge, Stewartstown, Stratford, and Unity, NH - March 1, 2013
City of Wheatland in Yuba County, CA - April 25, 2013
City of Falls Church, VA and the Falls Church City Public School District - May 29, 2013
Contacting the Attorney General regarding possible bailout
Any jurisdiction seeking additional information concerning its eligibility to obtain the requisite declaratory judgment under Section 4 should contact the Voting Section. You can call, toll-free, at 800/253-3931 or write to:
Chief, Voting Section
Civil Rights Division, Department of Justice
950 Pennsylvania Ave., N.W.
Room 7254 NWB
Washington, DC 20530
An attorney will then contact you to further discuss the matter.