Over 21 years, attorney J. Gerald Hebert handled more than 100 civil rights cases as the Justice Department’s point man enforcing the Voting Rights Act. Now, he helps governments gain release from the law’s central mandate.
In election law circles, he’s known as the “Bailout King.” No lawyer has guided more counties and cities with a history of voter discrimination to “bail out” from federal oversight of their local elections. Hebert’s prolific work was cited in a dissenting opinion by Supreme Court Justice Clarence Thomas.
Hebert, 63, uses a largely unknown exemption, or “bailout,” in the 1965 statute to help communities that have closed painful chapters in their pasts.
“I’m helping jurisdictions that have a very solid, clean record of voting rights compliance; they have earned it,” Hebert says. “I have never represented and never will represent a jurisdiction seeking a bailout that’s not qualified. I didn’t devote my life to the Voting Rights Act and civil rights to help jurisdictions that discriminate against minority voters.”
Election Laws Under Fire
A national debate over voting rights has formed in response to controversial state laws that impose a range of election restrictions, such as photo ID requirements for voters.
States are fighting numerous lawsuits that claim the measures would violate the Voting Rights Act by disproportionately harming minorities. The Justice Department has used the law to block many of the initiatives, including the voter ID laws in Texas and South Carolina.
Hebert represents plaintiffs suing both Texas and South Carolina over the laws, as well as plaintiffs suing to stop Florida’s voter purge program.
At the heart of the controversy is the Voting Rights Act itself, particularly the mandate that communities with a history of discrimination must get federal permission or “pre-clearance” for election changes, redistricting or annexations.
Pre-clearance is enforced in some or all parts of 16 states, most broadly in the South. Many governments argue they are unfairly forced to comply after having abolished discriminatory practices many years ago. They also complain of the cost and inconvenience of submitting every proposed election change to the Justice Department.
The exemption would grant them relief if they show evidence of increased minority participation and 10 consecutive years of elections free of discrimination.
Once infrequent, the granting of bailouts has accelerated since a 2009 Supreme Court ruling loosened the requirements. Roughly 36 counties, cities, utility districts and other entities have bailed out in the past three years, the highest volume ever. Nearly every community exempted in that span is in the South.
The Justice Department says it is reviewing bailout petitions for at least another 100 jurisdictions across multiple states.
exemptions have been requested by only a fraction of the more than 12,000 U.S. jurisdictions that comply with pre-clearance. Many local officials, particularly in rural areas, don’t know about the exemption, attorneys say. Other officials know little about the application process, or worry that it would be cumbersome and expensive.
Fear Of Backlash
“Jurisdictions are also a little hesitant to ask for the exemption just because the political sound of that isn’t good,” said Washington attorney Jason Torchinsky, who represented the city of Sandy Springs, the first jurisdiction in Georgia to bail out, in 2010. “When you are a local official, the last thing you need is to vote for something that’s going to cause civil rights protests in your town.”
The specter of history was a concern in Prince William County, Va., where minorities now make up 52 percent of a 419,000 population. In April, it became the largest jurisdiction in the nation to bail out.
“I’ve lived in Prince William for 20 years and I haven’t seen any evidence of discrimination,” says Keith Scarborough, chairman of the county’s elections board. “But I’ve gotten to know a lot of people for whom it’s not an academic issue. They and their parents lived through Jim Crow laws. I wanted to make sure it was far enough in the past.”
Election officials sought support for the bailout from civil-rights activist Curtis Porter, chairman of the county’s human rights commission, which has fought county crackdowns on illegal immigrants and played a key role in the preservation of black and Hispanic voting districts last year.
Porter was skeptical of the bailout. At age 55, he traces his ancestry in Prince William back to slavery and says he and his family remember the experiences of his uncle as one of the few southern blacks elected to local office in 1961 before the Voting Rights Act. “To many, the vestiges of legalized segregation and discrimination are no more than a history lesson. For me, it was a reality,” Porter told the county board of supervisors last December.
Porter said in an interview that the commission decided to support the bailout after determining that minority voting power wasn’t in danger of being diluted.
“It’s become a decent place as far as race relations,” Porter says. “We started looking at things that might have negative impacts on people. Once we began to talk about it, we didn’t see a major impact.”