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Nielsen Merksamer Defends Merced County’s Bailout in U.S. Supreme Court
U.S. Supreme Court Poised To Determine Constitutionality of Section 5 of the Voting Rights Act; Merced County Files Amicus Brief Defending Its Bailout From Section 5 Coverage.
On January 2, 2013, two of Nielsen Merksamer’s leading voting rights experts, Marguerite Leoni and Chris Skinnell, filed an amicus curiae brief in the United States Supreme Court, in the pending constitutional challenge to Section 5 of the federal Voting Rights Act (Shelby County, Ala. v. Holder). The case presents the issue of the constitutionality of the 2006 congressional reauthorization of Section 5 of the federal Voting Rights Act using the 1975 formula to determine which jurisdictions should be “covered”—in other words, which jurisdictions must submit every change affecting voting (e.g., boundary changes, district formation, special elections, appointments to vacancies, etc.), no matter how inconsequential or beneficial, to the U.S. Attorney General or the federal district court for the District of Columbia for approval (“preclearance”) before implementation.
Defenders of Section 5 have argued that Section 5 continues to be targeted at jurisdictions that enact discriminatory policies, and to the extent “innocent” jurisdictions are covered, the statutory option of “bailing out” from coverage cures any overbreadth in the coverage formula. Opponents of Section 5 have responded that the Attorney General is misapplying the bailout criteria to maximize the number of jurisdictions that have exited from coverage in order to bolster its case that Section 5 remains constitutional.
In 1968 and 1975, Section 5 was made applicable to four California counties—Merced, Monterey, Kings and Yuba—but as a practical matter it applies to every city, school district or special district with territory wholly or partially within the boundaries of those counties.
Marguerite and Chris have represented Merced County for more than a decade on voting rights, redistricting, and preclearance matters. In 2009, Merced County approached the United States Attorney General to seek its consent to the County exiting from coverage through the statutory “bailout” procedures. Recognizing the burdens that Section 5 could impose on jurisdictions, Congress authorized covered jurisdictions to “bail out” of coverage if they could meet a list of statutory criteria designed to ensure that no racial discrimination exists in voting within the jurisdiction that would warrant the ongoing application of Section 5. As amended in 1982, these criteria place a stringent burden on jurisdictions seeking to bail out, and until recently only a handful of small cities and counties in Virginia had been able to meet them.
In August of 2012, after more than two years of investigation, the United States Attorney General found that Merced County met the criteria, and consented to Merced County’s bailout. Marguerite and Chris represented the County in the bailout action. The bailout also had coattails, freeing more than 80 cities, school districts and special districts with territory in the County from the need to comply with Section 5’s preclearance obligation. Merced County’s was far and away the largest and most complex bailout action to be approved by the United States District Court for the District of Columbia since the bailout criteria were last amended by Congress in 1982.
The purpose of Merced County’s just-filed amicus brief was to provide the Supreme Court with information regarding Merced County’s successful Section 5 bailout, and to respond to attacks on the County’s bailout in recent press coverage and court filings, which suggest that the County was not entitled to bail out, and the Attorney General permitted the County to bail out improperly to support his argument that bailout is a viable option.
If Shelby County’s challenge to Section 5 is unsuccessful, other jurisdictions in California may wish to investigate whether they may be eligible to bailout as well. (Marguerite and Chris also represented the only other California jurisdiction to successfully bailout of coverage, Alta Irrigation District.)
The case has been set for oral argument on February 27, with a decision expected by the end of the Court’s term in June.