Northwest Austin Municipal Utility Distr. One v. Holder Brief of Amici Curiae of Jurisdictions

    No. 08-322

3 fn ® fie

S u p r e m e  C o u r t  of tfje ®intteb S ta te s !
---------------- ♦-----------------

NORTHWEST AUSTIN MUNICIPAL 
UTILITY DISTRICT NUMBER ONE,

Appellant,
v.

ERIC H. HOLDER, JR., Attorney General 
of the United States of America, et al.,

Appellees.
---------------- ♦-----------------

On Appeal From The 
United States District Court For The 

District Of Columbia
---------------- ♦----------------

BRIEF OF AMICI CURIAE JURISDICTIONS 
THAT HAVE BAILED OUT UNDER THE VOTING 

RIGHTS ACT IN SUPPORT OF APPELLEES
---------------- ♦ -

J. Gerald Hebert 
Counsel of Record for 

Amici Curiae 
J. Gerald Hebert, PC.
5019 Waple Lane 
Alexandria, VA 22304 
(703) 628-4673
George Warren Shanks 
Counsel for Amicus 

Page County Registrar 
M iller, Earle & Shanks, PLLC 
136 General Drive, Suite 200 
P.O. Box 246 
Luray, VA 22835 
(540) 745-4511

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831

Lucy Phillips 
Counsel for Amicus 

Washington County 
Registrar

205 Academy Drive 
Abingdon, VA 24210 
(276)525-1370



1

TABLE OF AUTHORITIES .....................................  ii
STATEMENT OF INTEREST.................................. 1
SUMMARY OF ARGUMENT.................................. 2
ARGUMENT............................................................... 4

I. IMPLEMENTATION OF THE VOTING 
RIGHTS ACT IN VIRGINIA AND ITS 
SPECIAL PROVISIONS................................ 4

II. THE 1982 AMENDMENTS TO THE 
VOTING RIGHTS ACT AND THE IM­
PACT ON BAILOUT............................   6

III. THE BAILOUT PROCESS IS NEITHER
COSTLY, BURDENSOME, NOR TIME- 
CONSUMING................................................. 7
A. The Fact That Only 17 Jurisdictions

Have Bailed Out Is Not An Indication 
That the Bailout Provisions Are Not 
Working............................     7

B. A Bailout Is Financially Feasible......... 11
C. The Bailout Process Is Neither Cum­

bersome Nor Complicated...................... 12
IV. JURISDICTIONS SEEKING BAILOUT

CAN BRING POLITICAL SUBUNITS WITH­
IN THEIR BORDERS INTO COMPLI­
ANCE WITH THE VOTING RIGHTS ACT 
DURING THE BAILOUT PROCESS........... 15

CONCLUSION..........................................................  21

TABLE OF CONTENTS
Page



11

TABLE OF AU THORITIES

Ca s e s :

Page

City o f Rome, Georgia v. United States, 446
U.S. 156(1980)............................................................20

Harper v. Virginia State Board o f Elections,
383 U.S. 663 (1966)...................................................... 4

McCain v. Lybrand, 465 U.S. 236 (1984).................. 20
McDaniel v. Sanchez, 452 U.S. 130 (1981)..... .......... 20
Northwest Austin Municipal Utility District 

Number One v. Holder, No. 08-322, Brief of 
Georgia Governor Sonny Perdue as Amicus 
Curiae In Support of Appellant (Feb. 26,
2009)...................................................................... 15, 19

Shenandoah County v. Reno, No. 1:99CV00992 
(D.D.C. October 15, 1999).........................................17

C onstitutions , Statutes and  R u le s :

Section 4 of the Voting Rights Act, 42 U.S.C.
§ 1973b.................................................................passim

Section 5 of the Voting Rights Act, 42 U.S.C.
§ 1973c.................................................................passim

S. Rep. No. 97-417 (1982).........................................6, 18
28 C.F.R. § 51.23(a).........................................................16



Ill

TABLE OF AU TH ORITIES -  Continued

M iscellan eo us :

Page

The Voting Rights Act: An Examination of the 
Scope and Criteria for Coverage Under the 
Special Provisions of the Act: Oversight 
Hearing of the House Committee On The 
Judiciary, Subcommittee On The Constitu­
tion, 109th Cong., 1st Sess. 90 (October 20,
2005) (Statement of J. Gerald Hebert)................. ..12

An Introduction to the Expiring Provisions of 
the Voting Rights Act and Legal Issues Re­
lating to Reauthorization: Hearing of the 
Senate Committee On The Judiciary, 109th 
Cong., 1st Sess. 177 (May 9, 2006) (State­
ment of Ted Shaw )...................................................... 11

Chandler Davidson and Bernard Grofman, 
eds., Quiet Revolution in the South: The Im­
pact of the Voting Rights Act 1965-1990, 
Princeton University Press (1994).............................4

J. Gerald Hebert, An Assessment of the Bailout 
Provisions of the Voting Rights Act, in Voting 
Rights Act Reauthorization of 2006 (Hender­
son ed. 2007)................................................................ 18

J. Gerald Hebert, Bailout Under the Voting 
Rights Act, in America Votes! (American Bar 
Association) (Griffith ed. 2008).................... 8, 11, 12

J. Gerald Hebert, City of Fairfax Obtains Voting 
Rights Act Bailout, National Cities Weekly, 
November 24, 1997, available at http://www. 
highbeam.com/DocPrint.aspx?DocId=lGl:2009 
7806 7

http://www


1

Amici curiae are several Virginia jurisdictions 
(hereafter “Amici Bailed Out Jurisdictions”)1 2 which 
over the last decade have bailed out from coverage 
under the special provisions of the Voting Rights Act. 
See 42 U.S.C. § 1973b. Amici Bailed Out Jurisdictions 
have a special interest in the bailout issues raised in 
this case and a unique perspective on these issues. 
Each jurisdiction has gone through the bailout proc­
ess, has been found eligible to bailout by the United 
States Department of Justice and the DC courts, and 
each has in fact bailed out. Amici Bailed Out Juris­
dictions believe that their views about the bailout

S T A T E M E N T  O F  IN T E R E S T 1

1 Counsel for the Amici here, J. Gerald Hebert, served as co­
counsel to Travis County, Texas, in the district court. Travis 
County is a Defendant-Intervenor and Appellee in this case. Mr. 
Hebert withdrew as co-counsel for Travis County with the 
consent of the County, and advised the Clerk of this Court by 
letter dated January 22, 2009, that he had done so and would be 
filing a brief on behalf of certain amici curiae in this Court 
(supporting Appellees, including Travis County). A copy of the 
January 22 letter is appended as Exhibit A.

No counsel for a party authored any part of this brief. No 
person or entity other than amici or their counsel contributed 
monetarily to the preparation and submission of this brief. 
Correspondence from counsel of record for Appellees and Appel­
lants consenting to the filing of this brief have been filed with 
the Clerk of this Court.

2 Amici curiae herein are the Registrars of Voters for the 
following local governments in Virginia, each of whom was 
responsible for pursuing the bailout in the political subdivision: 
Amherst, Essex, Middlesex, Page, Shenandoah, and Washington 
counties, and the City of Salem.



2

process and how it actually works will inform the 
Court in a way none of the existing parties is able.

---------------- ♦----------------

SUMMARY OF ARGUMENT

Upon passage of the Voting Rights Act in 1965, 
each of the Amici Bailed Out Jurisdictions adapted to 
the Act’s special provisions, particularly the preclear­
ance procedures set forth in Section 5 of the Act, 42 
U.S.C. § 1973c. They did so by incorporating the 
preclearance process into our routine procedures for 
implementing any change that affected voters. Over 
the course of the next three decades, Amici and the 
political subunits within our jurisdictions built the 
preclearance process into the adoption of all voting 
and election changes.

Except for Amicus Shenandoah County, which 
bailed out in 1999, all of the other Amici Bailed Out 
Jurisdictions have bailed out in the last three years. 
As detailed below, the process was not costly, admin­
istratively burdensome, or difficult. As for cost, our 
experience is that the total cost of obtaining a bailout 
was approximately $5000. That total cost included 
staff time gathering the relevant data and the filing 
of bailout documents in the DC court.

As for the bailout process, Amici found the proc­
ess relatively easy and without any undue burden. 
Essentially Amici Bailed Out Jurisdictions gathered 
the necessary information and data supporting 
bailout from records we maintained in the ordinary



3

course of business. Our counsel then submitted that 
information to the United States Department of 
Justice, which then conducted its own independent 
review. We advertised the bailout in our community 
media and posted notices in post offices, as required 
by law. See 42 U.S.C. § 1973b. After we were notified 
by the Department of Justice that our jurisdiction 
had met the bailout requirements, our legal counsel 
filed suit and the necessary bailout papers in the DC 
Court.

Bailout is also achievable even if a County dis­
covers during the bailout process that one or more of 
its political subunits is not in full compliance with the 
Voting Rights Act. During the course of the bailout 
process, for example, several of the Amici Bailed Out 
Jurisdictions discovered that some of their political 
subunits had inadvertently failed to submit certain, 
relatively minor voting changes for Section 5 review. 
In such cases, our bailout counsel promptly made a 
preclearance submission to the Department of Jus­
tice, preclearance was granted nunc pro tunc, and the 
bailout process was then completed.

In sum, contrary to claims made by Appellant 
and some of the Amici supporting Appellant, bailout 
is neither impossible, administratively burdensome, 
nor costly.



4

ARGUMENT

I. IMPLEMENTATION OF THE VOTING 
RIGHTS ACT IN VIRGINIA AND ITS SPE­
CIAL PROVISIONS

The passage of the Voting Rights Act brought 
about major changes in the Virginia electorate. The 
Act immediately suspended Virginia’s literacy test 
and eliminated the State’s poll tax for federal elec­
tions. This Court’s 1966 decision in Harper v. Virginia 
State Board o f Elections, 383 U.S. 663 (1966) invali­
dated the Virginia poll tax for state elections. As a 
result of these developments, there was throughout 
the Commonwealth a “major surge in black registra­
tion and voting . . .  in the 1960’s.” Quiet Revolution in 
the South: The Impact of the Voting Rights Act 1965- 
1990, p. 277 Chandler Davidson and Bernard Grof- 
man, eds., 1994, Princeton University Press (hereaf­
ter “Quiet Revolution”).

The passage of the Voting Rights Act in 1965, 
particularly the preclearance provisions of Section 5 
of the Act, also had an immediate impact on the way 
local governments in Virginia such as ours conducted 
our business. Each of the Amici Bailed Out Jurisdic­
tions had the sole responsibility to register voters for 
our local government (including the registration of 
voters for all political subunits within our borders). 
Each time Amici herein wanted to make a change in 
any voting standard, practice or procedure, we made 
a submission of such proposed change to the Depart­
ment of Justice for preclearance. None of the Amici



5

here ever sought judicial preclearance from the DC 
court.

Amici Bailed Out Jurisdictions quickly adjusted 
to the Act’s special provisions in one important way: 
we incorporated the preclearance process into our 
routine procedures for making any change that 
affected voters. Thus, it became standard operating 
procedure for voting officials in our jurisdictions to 
include the preclearance process in any timeline for 
implementing voting changes. It simply became 
routine practice for us to make a submission to the 
United States Attorney General whenever preclear­
ance was required.

The preclearance submissions from political 
subdivisions such as Amici here were usually written 
by the County or City voting registrar, or some other 
election official in our County or City government 
offices, such as the City/County Electoral Board or 
the City/County Attorney. Our correspondence de­
scribed the proposed voting change, provided what­
ever relevant statistical information we had which 
supported the preclearance request, and listed repre­
sentatives of the minority community who could 
verify that they did not believe that the proposed 
changes were discriminatory. The preclearance proc­
ess was straightforward, and not a single objection 
was ever interposed by the United States Attorney 
General to any voting changes made by any of the 
Amici Bailed Out Jurisdictions.



6

II. THE 1982 AMENDMENTS TO THE VOT­
ING RIGHTS ACT AND THE IMPACT ON
BAILOUT

When the Voting Rights Act was amended in 
1982 to permit local governments like Amici here to 
bailout, the Congress rightly believed that “[a] sub­
stantial number of counties may be eligible to bail out 
when the new procedure goes into effect.” S. Rep. No. 
97-417 at 53. Indeed, one voting rights expert, “Mr. 
Armand Derfner[,] presented a chart compiled by the 
Joint Center for Political Studies. It showed a rea­
sonable projection of 25 percent of the counties in the 
major covered states being eligible to file for bailout 
on the basis of their compliance with the objective 
criteria in the compromise bill.” Id. And the Assistant 
Attorney General for the Civil Rights Division at the 
time, William Bradford Reynolds, testified to the 
same effect and his projected number of jurisdictions 
eligible to bailout in 1982 was “virtually identical to 
those in the Joint Center’s estimate.” Id.

Interestingly, following the amendments and 
extension of the Voting Rights Act in 1982 expanding 
the opportunity for bailout, not a single jurisdiction 
bailed out until 1997. In that year, the City of Fair­
fax, Virginia became the first jurisdiction to obtain a 
bailout pursuant to the criteria set forth in the 1982 
amendments to the Voting Rights Act. Upon obtain­
ing a bailout, the City of Fairfax explained through 
its counsel that it had sought a bailout because it was 
proud of its record of equal registration and voting 
opportunities, and a bailout gave the City a public



7

and official declaration that all aspects of the City’s 
political process were equally open to all its citizens. 
See J. Gerald Hebert, City of Fairfax Obtains Voting 
Rights Act Bailout, National Cities Weekly, November 
24, 1997, available at http://www.highbeam.com/
DocPrint.aspx?DocId=lGl:20097806.

And even today, while no jurisdiction subject to 
the Voting Rights Act’s special provisions has sought 
a bailout and been rejected, only 17 jurisdictions have 
sought a bailout. The attached chart (Exhibit B 
hereto) lists these 17 bailed out jurisdictions and the 
dates that each bailout was granted.

III. THE BAILOUT PROCESS IS NEITHER
COSTLY, BURDENSOME, NOR TIME-
CONSUMING

A. The Fact That Only 17 Jurisdictions 
Have Bailed Out Is Not An Indication 
That the Bailout Provisions Are Not 
Working

So if Congress and voting rights experts pre­
dicted in 1982 that roughly 25% of the covered juris­
dictions were eligible to bailout, why have there been 
only 17 bailouts since that time? Amici offer several 
explanations.

http://www.highbeam.com/


8

“[M]any local officials are unaware of the bailout 
option.”3 As more and more jurisdictions become 
aware of the bailout opportunity, the number of 
jurisdictions bailing out should increase.

Indeed, within three years of the City of Fairfax’s 
bailout in 1997, two additional jurisdictions (Freder­
ick and Shenandoah counties, Virginia) bailed out. 
See Appendix at Exhibit B. In the last three years 
alone (2006-2008), seven jurisdictions have bailed 
out, so it would appear that more jurisdictions are 
becoming aware of the bailout opportunity. Ibid.

Appellant makes much of the fact that all of the 
bailouts have come from Virginia. See Appellants’ 
Brief at 25. The reason, we believe, that bailouts have 
occurred only in Virginia is that it is very much a 
local issue for us. Once Fairfax opened the bailout 
door in 1997, word of bailout provisions started to 
slowly spread throughout our state, and other local 
governments interested in a bailout eventually fol­
lowed suit. News of Fairfax’s bailout and those bail­
outs that followed became a topic of conversation at 
meetings of Virginia’s local government attorney 
association and annual meetings of Virginia local 
election officials. Counsel who has handled all the 
bailouts made presentations about the process at

3 “Bailout Under the Voting Rights Act”, J. Gerald Hebert, 
in America Votes! (American Bar Association, 2008) (Benjamin 
E. Griffith, ed.) at 325 (hereafter 11 America Votes!”).



9

these meetings.4 The fact that bailouts have thus far 
been limited to Virginia has more to do with these 
particularized local factors than with any perceived 
uniqueness in our governmental structures.

Appellant has surmised, incorrectly, that the fact 
bailouts have occurred only in Virginia is due to the 
fact that there is something “idiosyncratic” or differ­
ent about our local government structures that makes 
bailout easier for political subdivisions in our state 
than in other states. See Appellant’s Brief at 25. This 
is incorrect.

Virginia’s County governments are structured 
much like County governments in other states. They 
include other political subunits of government, such 
as towns, utility districts, and school boards. Some 
states, like Texas, may have counties that contain 
more political subdivisions than Virginia’s counties 
do. But others, like Georgia, North Carolina, South 
Carolina, and Mississippi, are structured much the 
same as Virginia’s counties. Thus, County govern­
ments in a number of the other covered states under 
the Voting Rights Act are in much the same position

4 Counsel for Amici Bailed Out Jurisdictions has repre­
sented all seventeen of the Virginia jurisdictions that have 
bailed out thus far. The fact that counsel has his law practice in 
Virginia and has made appearances at statewide conferences in 
Virginia where local election officials have been present (includ­
ing County and City attorneys) is also an additional explanation 
of why bailouts have thus far been limited to Virginia.



10

as Virginia’s counties when it comes to seeking and 
obtaining a bailout.

Virginia’s cities, however, do differ from munici­
palities in other covered jurisdictions in one respect: 
cities are independent governmental entities separate 
from the counties they are located within. Accord­
ingly, independent cities in Virginia run their own 
municipal affairs, including the maintenance of their 
own voter register rolls for City elections (County 
residents are not permitted to vote in City elections 
and vice versa). As a result, Virginia is the only 
covered state where cities may bailout, because they 
are separate political subdivisions which register 
voters.

Of the 17 bailouts in Virginia, however, only 4 
have been by independent cities. See Exhibit B. Thus, 
Appellant’s arguments that unique characteristics of 
Virginia local governments or its independent cities 
explain why Virginia-only jurisdictions have bailed 
out simply do not hold water.

In any event, the number of jurisdictions seeking 
bailout would likely increase if the Department of 
Justice were to make a concerted effort to dissemi­
nate information about bailout to covered jurisdic­
tions. As counsel for Amici Bailed Out Jurisdictions 
explained to Congress in 2005, “If the DOJ were to 
include guidance about the bailout process and re­
quirements with preclearance letters, where appro­
priate, to educate jurisdictions and make similar 
information clearly available under an appropriate



11

heading on its website for those jurisdictions unfamil­
iar with the bailout statute and rules, there would 
likely be an increase in the number of jurisdictions 
that seek bailout over the course of the next 25 years 
as compliance improves.” An Introduction to the 
Expiring Provisions of the Voting Rights Act and 
Legal Issues Relating to Reauthorization: Hearing of 
the Senate Committee On The Judiciary, 109th 
Cong., 1st Sess. 177 (May 9, 2006) (Statement of Ted 
Shaw).

Furthermore, as explained below, the reasons 
that more jurisdictions have not exercised the bailout 
option is not attributable either to the cost involved 
or to the difficulty of the bailout process. To the 
contrary, the cost is affordable and the process of 
obtaining a bailout is relatively easy and straightfor­
ward for a jurisdiction that has operated in compli­
ance with the Voting Rights Act.

B. A Bailout Is Financially Feasible

“Local officials may mistakenly believe that 
bailing out is not cost-effective or is administratively 
difficult.” America Votes!, supra, at 326. Neither belief 
is well-founded.

As for costs, when voting officials within a juris­
diction seeking a bailout are willing to undertake 
the simple task of gathering the relevant data on 
their own rather than paying outside counsel to do so, 
“the legal fees for the entire process of obtaining a



12

bailout are less than $5000.” The Voting Rights Act: 
An Examination of the Scope and Criteria for Cover­
age Under the Special Provisions of the Act: Over­
sight Hearing of the House Committee On The 
Judiciary, Subcommittee On The Constitution, 109th 
Cong., 1st Sess. 90 (October 20, 2005) (Statement of 
J. Gerald Hebert). See also America Votes!, supra, at 
326.

Furthermore, when a County or City bails out, 
all political subunits within the jurisdiction receive a 
bailout at that time. See 42 U.S.C. § 1973b. Thus, the 
one-time cost of a bailout for a County (or a Virginia 
City) and all its political subunits is affordable, even 
for relatively small jurisdictions like Amici Bailed 
Out Jurisdictions.

C. The Bailout Process Is Neither Cum­
bersome Nor Complicated

Nor is the process of obtaining a bailout adminis­
tratively difficult or complicated. Once our jurisdic­
tions decided to seek a bailout under the Voting 
Rights Act, we first assembled data and information 
from our files to determine if we met the bailout 
criteria that were set forth in the Voting Rights Act. 
We did so under guidance from counsel. Under the 
Act, gathering voting and election data will “assist 
the court in determining whether to issue a declara­
tory judgment under this subsection[.]” 42 U.S.C. 
§ 1973b(a)(4).



13

The data and information we gathered included 
information that we maintain in the ordinary course 
of business, such as the number of voters in each 
voting precinct, the number of voters who turned out 
at the polls in past elections, and the number of 
minority persons who have worked at the voter 
registration office, electoral board, or served as poll 
officials. We also gathered past election results, 
particularly for those elections which involved a 
minority candidate. Finally, we assembled informa­
tion on the various opportunities and methods per­
sons in our communities can utilize to become 
registered voters. Often, such information about voter 
registration opportunities is set forth on our local 
government website and thus instantly accessible.

We also regularly maintain in our files corre­
spondence we have sent to and received from the 
United States Department of Justice regarding 
Section 5 preclearance. These letters helped demon­
strate that the Amici Bailed Out Jurisdictions com­
plied in a timely fashion with the preclearance 
requirements under the Act.

The final data we collected to support our bailout 
request was information that tends to show that all 
persons within our jurisdictions enjoy an equal oppor­
tunity to participate effectively in the political proc­
ess. To do this, we simply gathered: publicly available 
census data off the internet; described the method of 
election (e.g., at-large, single-member districts) for 
our City or County, and the elective bodies within it; 
and identified the location and convenience of voter



14

registration sites and polling place locations for our 
voters.

Once we assembled this data, and it was not very 
time-consuming to do, we submitted the data to the 
Attorney General for review and verification. The 
Attorney General then undertook an independent 
investigation in our community to verify our bailout 
eligibility. We understand that local leaders in the 
minority community within our jurisdictions were 
interviewed by Justice Department personnel to 
obtain their views on our bailout request.

We also published Notice of our intention to 
bailout and posted the Notice in all appropriate post 
offices, as the bailout provisions require. See 42 
U.S.C. § 1973b(a)(4) (“The State or political subdivi­
sion bringing such action shall publicize the intended 
commencement and any proposed settlement of such 
action in the media serving such State or political 
subdivision and in appropriate United States post 
offices.”). In some of our jurisdictions, we held public 
hearings on the proposed bailout to give interested 
persons in our communities an opportunity to learn 
why we were seeking a bailout, to ask questions 
about the process, and to inform our voters of their 
opportunity to intervene in a bailout action if they so 
desired.

Upon the Department of Justice’s determination 
that our political subdivisions were eligible to bailout, 
counsel for the Amici Bailed Out jurisdictions drafted 
the necessary court papers and submitted them to the



15

D.C. Court for approval. The entire bailout process 
for Amici Bailed Out Jurisdictions was smooth, 
transparent, and straightforward.

IV. JURISDICTIONS SEEKING BAILOUT CAN 
BRING POLITICAL SUBUNITS WITHIN 
THEIR BORDERS INTO COMPLIANCE 
WITH THE VOTING RIGHTS ACT DURING 
THE BAILOUT PROCESS

Appellant and Amicus Curiae Georgia Governor 
Sonny Perdue make the claim that an insurmount­
able hurdle to bailout is the fact that a State or a 
County lacks the power to force political subunits to 
comply with Section 5. See Appellant’s Brief at 25-26. 
See Perdue Brief at 22-26. Amicus Curiae Georgia 
Governor Sonny Perdue further claims that “it is 
practically impossible for any jurisdiction to bail out 
of coverage.” See Perdue Amicus Brief at 20-25. 
Neither of these claims is correct.

The argument that a State or a County is unable 
to obtain a bailout because it lacks the ability to bring 
non-compliant political subunits within their borders 
into compliance with Section 5 shows a fundamental 
lack of understanding of how the bailout process 
actually works. First, as the Department of Justice’s 
Section 5 Guidelines make clear: “Changes affecting 
voting shall be submitted by the chief legal officer or 
other appropriate official of the submitting authority 
or by any other authorized person on behalf of the 
submitting authority. When one or more counties or



16

other political subunits within a State will be af­
fected, the State may make a submission on their 
behalf.” 28 C.F.R. § 51.23(a). So all a State or County 
has to do when faced with a Section 5 noncompliant 
political subunit is to “make a submission on their 
behalf.” Ibid. Indeed, as explained below, this actually 
happened to several of the political subdivisions 
which have bailed out.

In Amici Bailed Out Jurisdictions’ experience 
with the bailout process, we gathered data that we 
felt supported a bailout for our jurisdictions. We then 
notified the Department of Justice (DOJ) that we 
intended to seek a bailout and DOJ then conducted 
its own investigation to verify our bailout eligibility. 
Sometimes, in gathering data on our own and some­
times upon independent investigation by DOJ, Amici 
Bailed Out Jurisdictions discovered that a political 
subunit within our jurisdiction had failed to fully 
comply with the Voting Rights Act (e.g., by making a 
timely preclearance submission of a voting change). 
In every instance when that happened, the political 
subunit was promptly brought into compliance with 
the Voting Rights Act by the County seeking a bail­
out. The County simply asked counsel to make a 
Section 5 preclearance submission on the political 
subunit’s behalf, preclearance was obtained, and the 
bailout was completed. For example, in Shenandoah 
County, Virginia (one of the Amici here), which bailed



17

out in 1999,5 the County discovered during the course 
of gathering information supporting the bailout that 
the County itself and a number of towns within the 
County had failed to submit voting changes for 
preclearance review. Specifically, the County had 
failed to submit one special election for preclearance 
review, and four towns within the County had failed 
to submit over 30 annexations for Section 5 review. 
But Shenandoah County encountered no difficulty in 
bringing the political subunits into compliance with 
Section 5 of the Voting Rights Act.6 The County’s legal 
counsel promptly submitted all of these changes for 
Section 5 review, and all were precleared by the 
Attorney General after his review showed no dis­
criminatory purpose or effect. Thus, the County was 
able to use the bailout process to bring about compli­
ance with Section 5 nunc pro tunc. Upon preclearance 
of these previously unsubmitted changes, and on the 
basis of other information supplied by Shenandoah 
County demonstrating compliance with the Voting 
Rights Act, the bailout process went forward and the 
Attorney General consented to the bailout judgment.

6 See Shenandoah County, VA v. Reno, No. 1:99CV00992 
(D.D.C. October 15, 1999) (consent judgment and decree).

6 The Stipulation of Facts that was signed by the parties 
and filed in Shenandoah County, VA v. Reno, supra, details these 
previously unsubmitted changes and how they were precleared 
during the bailout process. See Shenandoah County, VA v. Reno, 
No. 1:99CV00992 (D.D.C. October 15, 1999) (Stipulation of Facts 
at *[[23).



18

This type of flexible approach by the United 
States Attorney General is exactly what was envi­
sioned by the bailout provisions. As the legislative 
history to the 1982 amendments explained: “This 
safeguard will permit evidence to be presented of 
voting rights infringements which have not previ­
ously been the subject of a judicial determination. 
However, such violations would not bar bailout if ‘the 
plaintiff establishes that any such violation were 
trivial, were promptly corrected, and were not re­
peated.’ ”7

Similarly, two other jurisdictions that have bailed 
out, Roanoke and Warren counties, Virginia, had a 
total of 13 previously unsubmitted and unprecleared 
changes at the time they initiated bailout proceed­
ings. In both instances, the unsubmitted changes 
(some of which had been undertaken by political 
subunits) were submitted for preclearance by the 
County, and following preclearance, the bailout 
process was successful. See J. Gerald Hebert, An 
Assessment of the Bailout Provisions of the Voting 
Rights Act, in Voting Rights Act Reauthorization of 
2006, at 277 (Appendix A) (Henderson ed., 2007).

That Shenandoah, Roanoke and Warren counties 
all were permitted to bailout despite the existence of 
previously-implemented, but unsubmitted changes 
(including many changes by political subunits thereof)

7 S. Rep. No. 97-417, at 53, reprinted in 1982 U.S.C.C.A.N. 
at 231.



19

shows that the current bailout provisions are both 
flexible and workable for covered jurisdictions. While 
Congress made clear that a political subdivision 
cannot bailout if it has violated “any provision of the 
Constitution or laws of the United States or any State 
or political subdivision with respect to discrimination 
in voting on account of race or color” in the past ten 
years, it also permitted political subdivisions who 
registered voters to pursue bailout in limited circum­
stances even where minor voting rights infractions 
existed and those trivial issues could be quickly 
resolved, as they were in these three Virginia coun­
ties.8

Thus, Amici Bailed Out Jurisdiction’s own real 
world experience shows that a jurisdiction that 
inadvertently failed to submit voting changes for 
preclearance but implemented the changes anyway 
(such as happened in Shenandoah and Warren coun­
ties) were not barred from obtaining a bailout even 
though implementation of the unprecleared changes 
constituted technical violations of the preclearance 
provisions of the Voting Rights Act. Such “violations” 
were deemed inadvertent and fell into the “trivial” 
category.

Moreover, it is not the case that bailout is “prac­
tically impossible!.]” Perdue Amicus Brief at 20. Our 
own bailouts prove that local governments like ours 
that register voters and conduct elections can establish

42 U.S.C. § 1973b(a)(3) (2005).



20

full compliance with the Voting Rights Act over at 
least a ten-year period. And Amici here are unaware 
of anything that would not permit a substantial 
number of counties in Georgia (or any other State 
subject to the special provisions of the Voting Rights 
Act for that matter) from seeking a bailout today and 
making such a showing.

It is true that in some political subdivisions, 
bailout will not be possible because a proposed voting 
change submitted for preclearance has drawn an 
objection by the Attorney General or was rejected by 
the District of Columbia court. But that is as it 
should be. After all, if an objection has been inter­
posed or a declaratory judgment denied under Section 
5, it is because the submitting authority failed to 
show that its submitted change was not free of a 
racially discriminatory purpose or effect. See 42 
U.S.C. § 1973c. And that is precisely the prophylactic 
impact that Congress intended Section 5 to have, and 
it is one that this Court has consistently noted and 
upheld: “[Section 5] must, of course, be interpreted in 
light of its prophylactic purpose and the historical 
experience which it reflects.” McDaniel v. Sanchez, 
452 U.S. 130, 151 (1981). See also McCain v. Lybrand, 
465 U.S. 236, 246 (1984), and City o f Rome, Georgia v. 
United States, 446 U.S. 156, 202 (1980).

♦



21

CONCLUSION

For the foregoing reasons, the judgment of the 
three-judge court of the United States District Court 
for the District of Columbia should he affirmed.

Dated: March 2009

Respectfully submitted,
J. G erald H ebert 
Counsel o f Record for 

Amici Curiae 
J. G erald  H e b er t , RC.
5019 Waple Lane 
Alexandria, VA 22304 
(703) 628-4673
G eorge W arren  S hanks 
Counsel for Amicus 

Page County Registrar 
M iller, Earle & Shanks, PLLC 
136 General Drive, Suite 200 
P.O. Box 246 
Luray, VA 22835 
(540) 745-4511
L ucy  P hillips 
Counsel for Amicus 

Washington County 
Registrar

205 Academy Drive 
Abingdon, VA 24210 
(276) 525-1370



App. 1

EXHIBIT A

LAW OFFICES OF J. Gerald Hebert, P.C.
J. Gerald Hebert, Attorney at Law 

5019 Waple Lane 
Alexandria, VA 22304 

(703) 628-4673 
website: www.voterlaw.com

January 22, 2009
The Honorable William K. Suter 
Clerk of the Court 
Supreme Court of the United States 
Washington, DC 20543

Re: No. 08-322, AW  Austin Municipal Utility Dis­
trict No. 1 v. Mukasey

Dear Mr. Suter:

The Court noted probable jurisdiction in this 
appeal on January 9, 2009.

I serve as co-counsel for Travis County, Texas, 
one of the appellees in the above-referenced appeal. 
In that capacity, my co-counsel (Mr. Renea Hicks) and 
I were co-signatories to a motion to affirm submitted 
on behalf of numerous appellees-intervenors on 
November 26, 2008 I also served with Mr. Hicks as 
co-counsel to Travis County in the district court.

I am writing to advise the Court that I am with­
drawing as counsel for Travis County in this appeal. 
Travis County has consented to the withdrawal. It is 
my intention to file a brief in this case on behalf of 
certain amici curiae who will be aligned with Travis

http://www.voterlaw.com


App. 2

County. Travis County will continue to be represented 
in this Court by Mr. Hicks. In any amici curiae brief 
that I file in this appeal, I will include a footnote 
referencing my prior representation of Travis County.

Thank you for your attention to this matter.

Sincerely,
/s/ J. Gerald Hebert 

J. Gerald Hebert

cc counsel of record



App. 3

EXHIBIT B

Jurisdictions That Have Bailed Out Since 1982 
Extension and Amendments to the Voting Rights Act

Jurisdictions 
(All In Virginia) Bailout Granted Date

Fairfax City October 21, 1997
Frederick County September 9, 1999
Shenandoah County October 15, 1999
Roanoke County January 24, 2001
Winchester City May 31, 2001
Harrisonburg City April 17, 2002
Rockingham County May 21, 2002
Warren County November 25, 2002
Greene County January 19, 2004
Augusta County November 30, 2005
Salem City July 27, 2006
Botetourt County August 28, 2006
Essex County January 31, 2007
Page County September 15, 2008
Washington County September 23, 2008
Middlesex County January 4, 2008
Amherst County August 13, 2008