An Uncertain Future for Section 5 of the Voting Rights Act: The Need for a Revised Bailout System
In Northwest Austin Municipal Utility District Number One v. Holder ("NAMUDNO"), 129 S. Ct. 2504 (2009), the Supreme Court declined to decide one of the 2008 Term's most prominent issues: the constitutionality of the 2006 renewal of Section 5 of the Voting Rights Act. Instead, the Court adopted an unexpected statutory construction permitting the plaintiff to seek an exemption called "bailout" from continued coverage under this provision. But even though the Court avoided directly ruling on its constitutionality, NAMUDNO left little doubt that Section 5 remains on uncertain constitutional ground.
A revised bailout system is likely the best approach for placing Section 5 on a more solid footing. To date, however, bailout has been little used; despite predictions made during the previous renewal of Section 5 in 1982, only a handful of the thousands of covered jurisdictions have sought and successfully obtained bailout. This article suggests that Congress should consider two major changes to the existing bailout system. First, Congress should implement an "automatic" bailout that would unilaterally remove from coverage all jurisdictions that have not violated the major provisions of the Voting Rights Act since the 1982 renewal. Second, the current requirements for obtaining bailout—which this Article calls "optional" bailout—should be revised to make it easier for jurisdictions to determine whether they are eligible. Adopting these changes will more narrowly tailor Section 5 to apply to jurisdictions with a recent history of discrimination in voting, and thus make it more likely to survive constitutional scrutiny the next time the issue is before the Court.
Christopher B. Seaman, An Uncertain Future for Section 5 of the Voting Rights Act: The Need for a Revised Bailout System, 30 St. Louis Pub. L. Rev. 9 (2010).