Q: What is your opinion about the bail-out argument on the negative?
Addressing the bail-out provisions of the VRA is a great strategy for the Con side of the February 2014 Public Forum resolution. The bail-out provision is a great example of how Congress made sure that compliant states could stop sanctions with affirmative litigation by the states themselves. The Con still must balance the idea of bail-outs against the argument that Congress failed to update the VRA the last time the Supreme Court ruled on the matter and gave Congress a warning. The question therefore should the burden of proving discrimination is not taking place be on the states (because bail-out provision place the burden on the states) or should the federal government be the one updating coverage (therefore Section 4 was out of date).
The article An Assessment of the Bailout Provisions of The Voting Rights Act by J. Gerald Hebert does a great job explaining bail-outs, the use of this provision, and a pretty neat and tidy conclusion to support Con. Take a look at it. Below I have included a description of what bail-outs are as well as the article’s conclusion.
“Recognizing the coverage formula most likely reached some jurisdictions that had not employed racially discriminatory voting practices, Congress set up a means for those jurisdictions to “bail out” from coverage if they could prove that any tests or other devices they had used as a prerequisite to registering to vote had not been used with the purpose or effect of discriminating on the basis of race or color” (257, Herbert).
In sum, the current standards for bailout are practical and drafted in such a way as to require covered jurisdictions to prove the absence of those conditions that led to Section 5 coverage in the first place. Jurisdictions subject to the act’s pre- clearance provisions have an effective, reasonable, and cost-effective opportu- nity to bail out today. Moreover, the bailout provisions are tailored in such a way as to require a covered jurisdiction to prove nondiscrimination in voting and elections on the very issues that Congress targeted when it enacted the special remedial provisions. Congress, however, should examine the possibility of al- lowing local governmental subunits within a covered county to bail out.
The Supreme Court has found the VRA constitutional because its remedial provisions are proportional to the injury Congress sought to redress.66 The bailout provisions help ensure the act’s constitutionality because they provide a reason- able means by which covered jurisdictions can exempt themselves from the act’s special (and more intrusive) provisions, and because the bailout provisions, like other parts of the act, relate so closely to the act’s original purpose and the dis- crimination in voting it sought to eliminate. And finally, the bailout provisions serve the important function of insuring that state and local governments with a history of discrimination eliminate such practices and let minority voters take their rightful place as full participants in all aspects of the political process. The Voting Rights Act has made our democracy stronger, and the extension of the special remedial provisions will help bring about a day when discrimination no longer affects the ability of any person to register to vote or to cast their ballot” (275, Herbert).