Section 4 of the Voting Rights Act
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. The Department has embarked
on a vigorous program to enforce the Act's language
minority provisions.
The formula for coverage under Section 4 of the Voting Rights Act
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, along with those other sections that are
dependent upon it, such as Section 5 and 8, will expire in 2031.
Terminating coverage under the Act's special provisions
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.
Jurisdictions currently bailed out
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
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
City of Fairfax, Virginia, including the City of Fairfax School Board - October 21, 1997
Frederick County, Virginia, including the Frederick County School Board the Towns of
Middletown and Stephens City; and the Frederick County Shawneeland Sanitary District - September 10, 1999
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
Roanoke County, Virginia, including the Roanoke County School Board and the Town of Vinton - January 24, 2001
Stipulation of Facts
Consent Decree
City of Winchester, Virginia - June 1, 2001
Stipulation of Facts
Consent Decree
City of Harrisonburg, Virginia, including the Harrisonburg City School Board - April 17, 2002
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
Warren County, Virginia, including the Warren County School Board and the Town of Front Royal - November 26, 2002
Greene County, Virginia, including the Greene County School Board and the Town of Standardsville - January 19, 2004
Pulaski County, Virginia, including the Pulaski County School Board and the Towns of Pulaski and Dublin - September 27, 2005
Augusta County, Virginia, including the Augusta County School Board and the Town of Craigsville - November 30, 2005
City of Salem, Virginia - July 27, 2006
Botetourt County, Virginia, including the Botetourt County School Board and the Towns of Buchanan, Fincastle,
and Troutville - August 28, 2006
Essex County, Virginia including the Essex County School Board and the Town of Tappahannock - January 31, 2007
Middlesex County, Virginia, including the Middlesex County School Board and the Town of Urbanna - January 7, 2008
Amherst County, Virginia, including the Town of Amherst - August 13, 2008
Page County, Virginia, including the Page County School Board and the Towns of Luray, Stanley, and
Shenandoah - September 15, 2008
Washington County, Virginia, including the Washington County School Board and the Towns of Abington, Damascus, and Glade Spring - September 23, 2008
Northwest Austin Municipal Utility District Number One, Texas - November 3, 2009
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.
