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Section 4 of the Voting Rights Act

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. The Supreme Court has determined that "changes affecting voting" that are subject to review generally fall into four categories: (1) changes in the manner of voting; (2) changes in candidacy requirements and qualifications; (3) changes in the composition of the electorate that may vote for candidates for a given office; and (4) changes affecting the creation or abolition of an elective office. Presley v. Etowah, 502 U.S. 491 (1992).

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 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 state or political subdivision seeking to bail out must seek a declaratory judgment from a three-judge panel in the United States District Court for the District of Columbia that it merits the requested relief. The Voting Rights Act defines a "political subdivision" as any county or parish except where there is another entity, such as independent cities in Virginia, that conducts voter registration. In those circumstances, such a municipality is the functional equivalent of a county, and possesses the same authority over voter registration and elections. Unlike the original statutory design, which did not allow individual counties in those states covered in their entirety to obtain bailout, the new procedure allows counties to do so. In Virginia, several counties have successfully terminated their coverage under Section 4.

The successful bailout applicant must demonstrate that during the past ten years:

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.

The failure to establish any one of these criteria may preclude the jurisdiction from bailing out if the jurisdiction can establish the incidents that did occur "were trivial, were promptly corrected, and were not repeated." 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 bail out must publicize the intended comments 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 State or political subdivision 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.

In 1997, the City of Fairfax, Virginia, filed the first bailout action under the 1982 standards. The United States consented to the declaratory judgment, which was entered on October 21, 1997. Since that time several other jurisdictions have obtained similar judgments.

Any jurisdiction seeking additional information concerning its eligibility to obtain the requisite declaratory judgment under Section 4 or copies of previously submitted bailout provisions and consent decrees that have been entered, 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 AV N.W. Room 7254 NWB
Washington, DC 20530

An attorney will then contact you to further discuss the matter.