To election law lawyers, he’s the bailout king. To Supreme Court Justice Clarence Thomas, he’s an anomaly. To those states and towns forced to petition the Justice Department whenever they want to make changes in election laws or procedures, J. Gerald Hebert is the go-to attorney.
Since leaving the Justice Department’s civil rights division in 1994, Hebert has built a career helping cities, counties and states escape from, or “bail out” of, Section 5 of the Voting Rights Act, which requires locales with a history of discrimination against minority voters to obtain federal approval for any changes in election laws or procedures. If such places can show they don’t discriminate, they can bail out.
“Back when I pursued that first bailout, there were a lot of people in the civil rights and voting rights communities that said ‘Why are you doing this?’” Hebert recalls. “I said, ‘Well, some day the Voting Rights Act will be challenged, and one of the arguments that needs to be made to save it is that there’s an opportunity for those with clean records to bail out.’”
The Supreme Court on Feb. 27 will hear arguments, in Shelby County v. Holder, as towhether the preclearance provision is no longer needed. A record of jurisdictions that have been able to bail out with ease could help convince the justices that the preclearance provision is so outdated it should be struck down.
Hebert’s first bailout case was Fairfax, Va., in 1996. A registrar approached Hebert after a conference presentation and told him city officials thought they met the criteria to bail out. “I said, ‘Well, you’d be the first,’” Hebert says.
The Justice Department was receptive to the idea. Hebert helped Fairfax officials gather the information they needed to support the bailout application, which was not contested. The consent decree that the Justice Department and the city signed became a template for dodging the requirement without litigation. “Bailout has to be affordable; that’s the reason for always going to the Department of Justice up front. That process has been followed since 1996, whether it’s me or some other lawyer,” Hebert says.
Fairfax widely publicized that it had won the bailout, and Hebert’s law firm started getting calls from other jurisdictions covered by the law. In Virginia alone, Hebert has assisted the cities of Winchester and Harrisonburg and the counties of Frederick, Shenandoah, Rockingham, Roanoke, Warren and Greene.
In the last Supreme Court case challenging the constitutionality of Section 5, Northwest Austin Municipal Utility District Number One v. Holder, Thomas, in his dissenting opinion, said the successful bailouts were an “anomaly” because Hebert was the only one handling them and most had been pursued by jurisdictions in Virginia. The law didn’t provide a way out for localities lacking his legal help.
Because the justices in that case made it clear that any political subunit with an elected board, including utility companies and water districts, are eligible for a bailout, the number of successful bailouts has exploded.
“There have been more bailouts granted since that 2009 decision than in the history of the Voting Rights Act,” Hebert said.
Hebert says that, in the Shelby County case, if jurisdictions can show the court they have been able to pursue a low-cost path to relief, it could convince even skeptical justices such as Thomas that Section 5 is not outdated. Hebert has filed a friend-of-the-court brief via the Campaign Legal Center, where he is also an attorney, supporting keeping the provision and including such examples.
Meanwhile, he’s breaking new ground helping communities escape the requirement. New Hampshire, for instance, would be the first statewide bailout, and there is every indicator that it will be successful.
“What has changed since 2009? The only things that have changed are for the better. More jurisdictions are walking through the bailout door than ever before,” Hebert said.