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:
- No test or device has been used within the state or political subdivision;
- 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.
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.