City of Fairfax Obtains Voting Rights Act Bailout: First in the Nation to Win Approval
Hebert, J. Gerald, Nation's Cities Weekly
When the city of Fairfax, Va., decided in 1996 to relocate temporarily the voter registrar's office from the city hall annex to the city hall next door, it was required to do something that most cities wouldn't dream of doing: asking the approval of the federal government. When the city decided to rename one of its polling places in 1985, again the city had to seek approval in advance from Uncle Sam.
Fairfax is not unique in being required to seek federal government approval for making such routine decisions that affect voting. State and local governments in nine states (nearly all of the Deep South, including Texas, as well as Arizona and Alaska) and parts of seven others (much of North Carolina, and parts of California, Florida, Michigan, New Hampshire, New York, and South Dakota) face similar requirements. The reason is the Voting Rights Act of 1965.
The Reasons for Preclearance
Back in 1965, Congress had good reason to impose these requirements, known as the preclearance provisions, when it enacted the Voting Rights Act. It found that in the 1950's and early 1960's, case-by-case litigation against voting discrimination had not appreciably achieved any meaningful increase in black voter registration. The case-by-case approach had not worked, Congress found, because some of the states and the local jurisdictions within them, in the face of court injunctions, simply contrived new racially discriminatory voting procedures to replace the ones enjoined by the courts.
To constrain certain states and local governments from trying similar maneuvers in the future, Congress enacted the Voting Rights Act. Among other things, the law suspended all voting procedures and regulations pending scrutiny by federal authorities to determine whether their use would be racially discriminatory. These provisions, contained in Section 5 of the Act,
are known as the preclearance requirements because they require certain state and local governments to get preapproval or "preclearance" of any change that affects voting or elections.
Preclearance can only come from either of two authorities: the United States Department of Justice or a special three-judge court in the District of Columbia.
Preclearance History and Requirements
The states and local governments that have been subjected to the preclearance provisions became "covered jurisdictions" because the Voting Rights Act laid out a formula defining the states and political subdivisions to which the new preclearance remedies would apply. This coverage formula was aimed at areas where voting discrimination had been the most flagrant: any jurisdiction which used any test or device as a prerequisite to registration or voting and also had less than 50% voter turnout in the 1964 Presidential election.
The formula has been revised several times since 1965, but Deep South states such as Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, and all the political subdivisions in those states, have remained "covered jurisdictions" since 1965. Since the Commonwealth of Virginia has been a covered jurisdiction since 1965, all of its political subdivisions, including the city of Fairfax, have remained covered as well.
In the 1965 Act, Congress said covered jurisdictions that had not in fact engaged in racially discriminatory voting practices could exempt themselves from coverage by initiating a lawsuit in the United States District Court for the District of Columbia. To obtain the exemption, known as a "bailout," a plaintiff jurisdiction was required to show that in the five years preceding the filing of the lawsuit, it had not used a test or device "for the purpose or with the effect of denying or abridging the right to vote on account of race or color."
Under the 1965 law, 1) no jurisdiction that had used racially discriminatory voting tests could obtain a bailout; 2) no local government within any state that was entirely covered under Section 5 could seek a bailout, no matter how effectively it was working to remedy voting discrimination and even if it had no minority residents; and 3) states that were entirely covered, like Virginia, could not obtain a bailout if, anywhere in the state, a racially discriminatory voting test or device had been used during the preceding five years. …