Section 5 of The Voting Rights Act: Preclearance Requirements


Historical Background


When the Voting Rights Act was adopted in 1965, Section 5 was considered one of the primary enforcement mechanisms to ensure that minority voters would have an opportunity to register to vote and fully participate in the electoral process free of discrimination. The intent of Section 5 was to prevent states that had a history of racially discriminatory electoral practices from developing new and innovative means to continue to effectively disenfranchise Black voters.


Despite numerous laws passed by Congress between 1957 and 1964 and “despite the earnest efforts of the Department of Justice and of many federal judges, these ... laws [did] little to cure the problem of voting discrimination.” Footnote As noted by the Court in South Carolina v. Katzenbach, election officials and states either defied or evaded court orders, “switched to discriminatory devices not covered by the federal decrees or ... enacted difficult new tests designed to prolong the existing disparity between White and Negro registration.” Footnote


Before passage of Section 5, the federal government, through the Civil Rights Division of the Department of Justice, undertook the arduous and time-consuming task of filing individual suits against each discriminatory voting law. This approach proved unsuccessful in increasing Black voting registration. Footnote Section 5, which gives extraordinary power to the federal government, was the means “designed by Congress to banish the blight of racial discrimination in voting, which had infected the electoral process in parts of our country for nearly a century.” Footnote


Although Section 5 is a temporary provision of the Voting Rights Act, it has been extended each time Congress has amended the Act. Under the l982 amendments, Section 5 will automatically expire in 2007 unless extended by Congress.


Statutory Requirements


Section 5 of the Voting Rights Act requires covered jurisdictions to submit changes in “any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting” to either the U.S. Department of Justice or the U.S. District Court for the District of Columbia for preclearance before the change may be implemented. Footnote According to Section 4(b) of the original act, a jurisdiction was subject to Section 5 if it met the following test: 1) the jurisdiction maintained a test or device as a precondition for registering or voting as of November, 1964, and 2) less than 50 percent of the voting age population was registered to vote on November 1, 1964, or less than 50 percent of the voting age population voted in the November 1964 presidential election. Footnote If a state as a whole did not meet these criteria, the standard was applied to individual counties within the state, so that in some instances entire states were “covered” and in other cases only certain counties within a state were “covered.” Footnote


In 1970, Congress extended the preclearance requirements for an additional five years. The 1970 amendments also expanded coverage to those states or political subdivisions that, as of November 7, 1968, were using one of the specified tests or devices and in which less than half of the voting age population was either registered to vote or had actually voted in the 1968 presidential election. Footnote


In 1975, Congress extended the preclearance requirements for an additional seven years (through the 1980 redistricting cycle). The 1975 amendments added to the list of tests and devices the conduct of registration and elections in only the English language in those states or political subdivisions where more than 5 percent of the voting age population belonged to a single language minority group (including Alaskan natives, Native Americans, Asian Americans and people of Spanish heritage). Footnote The 1975 amendments also required the use of bilingual election materials and assistance if 5 percent of the jurisdiction's voting age citizens were of a single language minority and the illiteracy rate of that language minority group was greater than the national average. Footnote Finally, the coverage formula was extended to include jurisdictions that maintained any test or device and had less than half of their voting age population either registered on November 1, 1972, or casting votes in the 1972 presidential election. Footnote In all, 16 states or parts of states now are covered by Section 5 preclearance requirements, as shown in table 6.


The 1982 amendments extended the preclearance requirement for an additional 25 years, but otherwise did not make any substantive changes to Section 5.


Table 6. Jurisdictions Covered Under Section 4(b) of the Voting Rights Act, as Amended


The preclearance requirement of section 5 of the Voting Rights Act, as amended, applies in the following jurisdictions. The applicable date is the date that was used to determine coverage and the date after which changes affecting voting are subject to the preclearance requirement.


Some jurisdictions, for example, Yuba County, California, are included more than once because they have been determined on more than one occasion to be covered under section 4(b).


----------------------------------------------------------------------------------------------------------------
                                                                Federal Register Citation                   Jurisdiction                          Applicable Date     -------------------------------------------------
                                                                Volume and page          Date
----------------------------------------------------------------------------------------------------------------
Alabama..............................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
Alaska...............................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
Arizona..............................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
California:
  Kings County.......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23. 1975.
  Merced County......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  Monterey County....................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Yuba County........................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Yuba County........................  Nov. 1, 1972...........  41 FR 784..............  Jan. 5, 1976.
Florida:
  Collier County.....................  Nov. 1, 1972...........  41 FR 34329............  Aug. 13, 1976.
  Hardee County......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  Hendry County......................  Nov. 1, 1972...........  41 FR 34329............  Aug. 13, 1976.
  Hillsborough County................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  Monroe County......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
Georgia..............................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
Louisiana............................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
Michigan:
  Allegan County:
    Clyde Township...................  Nov. 1, 1972...........  41 FR 34329............  Aug. 13, 1976.
  Saginaw County:
    Buena Vista Township.............  Nov. 1, 1972...........  41 FR 34329............  Aug. 13, 1976.
Mississippi..........................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
New Hampshire:
  Cheshire County:
    Rindge Town......................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Coos County:
    Millsfield Township..............  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
    Pinkhams Grant...................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
    Stewartstown Town................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
    Stratford Town...................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Grafton County:
    Benton Town......................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Hillsborough County:
    Antrim Town......................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Merrimack County:
    Boscawen Town....................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Rockingham County:
    Newington Town...................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Sullivan County:
    Unity Town.......................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
New York:
  Bronx County.......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Bronx County.......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  Kings County.......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Kings County.......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  New York County....................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
North Carolina:
  Anson County.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Beaufort County....................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Bertie County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Bladen County......................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Camden County......................  Nov. 1, 1964...........  31 FR 3317.............  Mar. 2, 1966.
  Caswell County.....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Chowan County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Cleveland County...................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Craven County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Cumberland County..................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Edgecombe County...................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Franklin County....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Gaston County......................  Nov. 1, 1964...........  31 FR 5081.............  Mar, 29, 1966.
  Gates County.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Granville County...................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Greene County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Guilford County....................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Halifax County.....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Harnett County.....................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Hertford County....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Hoke County........................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Jackson County.....................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
  Lee County.........................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Lenoir County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Martin County......................  Nov. 1, 1964...........  31 FR 19...............  Jan. 4, 1966.
  Nash County........................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Northampton County.................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Onslow County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Pasquotank County..................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Perquimans County..................  Nov. 1, 1964...........  31 FR 3317.............  Mar. 2, 1966.
  Person County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Pitt County........................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Robeson County.....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Rockingham County..................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Scotland County....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Union County.......................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Vance County.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Washington County..................  Nov. 1, 1964...........  31 FR 19...............  Jan. 4, 1966.
  Wayne County.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Wilson County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
South Carolina.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
South Dakota:
  Shannon County.....................  Nov. 1, 1972...........  41 FR 784..............  Jan. 5, 1976.
  Todd County........................  Nov. 1, 1972...........  41 FR 784..............  Jan. 5, 1976.
Texas................................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
Virginia.............................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.


The following political subdivisions in States subject to statewide
coverage are also covered individually:


                                                                            Federal Register citation
         Jurisdiction                  Applicable date     -------------------------------------------------
                                                                    Volume and page                Date
----------------------------------------------------------------------------------------------------------------
Arizona:
  Apache County......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Apache County......................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975
  Cochise County.....................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Coconino County....................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Coconino County....................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
  Mohave County......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Navajo County......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Navajo County......................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
  Pima County........................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Pinal County.......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Pinal County.......................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
  Santa Cruz County..................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Yuma County........................  Nov. 1, 1964...........  31 FR 982..............  Jan. 25, 1966.


Source:  Appendix to 28 C.F.R. Part 51(1997)


Scope Of Coverage


In Allen v. State Board of Elections, Footnote the U.S. Supreme Court rejected the argument that Section 5 is limited to those state enactments that prescribe who may register to vote and does not cover state rules relating to other aspects of the electoral process, including qualification of candidates or state decisions as to which offices shall be elective. The Court, instead, broadly interpreted the scope of Section 5 to include all actions necessary to make a vote effective. According to the Court:


We must reject a narrow construction that appellees would give to Section 5. The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens the right to vote because of their race ... . The legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way. Footnote


The Court reasoned that unless Section 5 were afforded a broad interpretation, elected officials would likely develop new ways to avoid the effect of the legislation. Footnote


Following Allen and until 1992, the Court agreed in every case with the U.S. attorney general's construction of the coverage of Section 5. Footnote However, in Presley v. Etowah County Commission, the Court rejected the Department of Justice's interpretation that Section 5 covered transfers of decision making power involving elected officials that potentially could discriminate against minority voters.


Presley involved two consolidated cases from Etowah and Russell counties. In both counties the responsibilities of elected officials had been changed. Footnote Etowah County, under a 1986 consent decree following the filing of a Section 2 suit, agreed to expand the size of its county commission from four to six and eliminate the at-large electoral system in favor of six single-member districts. Footnote As a result of the consent decree, the county elected its first African American to the county commission. Footnote However, in 1987 the four holdover commission members, over the opposition of the two newly elected commissioners, adopted a common fund resolution. Footnote The common fund resolution provided that individual commissioners would no longer have individual control over the allocation of funds in their district. Instead, the funds were placed in a common fund and the commission as a whole would determine how the funds were allocated. Footnote The common fund resolution was never submitted for preclearance.


In 1979, following the indictment of a county commissioner on charges of corruption in county road operations, Russell County passed a resolution—the “unit system”—delegating control over road maintenance to the county engineer, an official appointed by the entire board. Footnote In 1985, following a consent decree, the county elected its first two African American commissioners. The unit system was never submitted for preclearance.


In Presley, the appellees alleged that the common fund resolution and unit system should have been submitted for preclearance and asked the Court to enjoin the resolutions until they received preclearance. The U.S. Department of Justice filed a brief in support of the appellees.


A majority of the Court, in an opinion by Justice Kennedy, rejected the appellees' argument that the common fund resolution and unit system were subject to preclearance. The Court, although affirming its earlier decision in Allen, held that only changes with a direct relation to voting and the election process are subject to preclearance. According to the Court:


Covered changes must bear a direct relation to voting itself ... . The changes in Etowah and Russell Counties affected only the allocation of power among governmental officials. They had no impact on the substantive question whether a particular office would be elective or the procedural question how an election would be conducted. Neither change involves a new “voting qualification, or prerequisite to voting, or standard, practice or procedure with respect to voting.” Footnote


Substantive Standards For Preclearance


To obtain preclearance, a jurisdiction has the burden of establishing that any voting change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color” or membership in a language minority group. Footnote A jurisdiction may seek either judicial or administrative preclearance of a voting change. If, however, the Department of Justice interposes an objection to a submitted electoral change, the jurisdiction still may seek judicial preclearance. Due to the cost and time involved in obtaining judicial preclearance, most jurisdictions have sought preclearance from the Department of Justice.


Judicial preclearance. To obtain preclearance from the U.S. District Court for the District of Columbia, a jurisdiction must file a declaratory judgment action. Upon the filing of the action, the jurisdiction has the burden of proving that the proposed electoral change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” or membership in a language minority group. Footnote The Department of Justice serves as the opposing party in the declaratory judgment action.


In Beer v. United States, Footnote the U.S. Supreme Court held, in applying the effect test of Section 5, that a jurisdiction seeking judicial preclearance of a redistricting plan is entitled to a declaratory judgment if the electoral change does not lead to a retrogression in minority voting strength. The Court reasoned that “the purpose of Section 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Footnote Retrogression, at least with respect to redistricting plans, is measured by comparing the new plan with the old plan as it existed immediately before adoption of the new plan. Footnote


Beer concerned the apportionment of city council districts in New Orleans. According to the 1970 census, African Americans comprised 45 percent of the population of New Orleans. Two of seven council members had been elected at large since 1954; the five remaining members had been elected from single-member wards that had last been redrawn in 1961. In one district, African Americans constituted a majority of the population but only about half of the registered voters. In the other four wards, White voters clearly outnumbered African American voters. No ward had ever elected an African American. After the 1971 city council redistricting, one ward had a majority African American population and majority African American voter majority, one had a majority African American population and White voter majority, and the other three had White population and White voter majorities.


Following the Department of Justice's denial of preclearance, the city filed a declaratory judgment action. The Court initially noted that the 1970 council redistricting plan for New Orleans increased the number of African American majority districts from one to two and granted the city a declaratory judgment. Therefore, the Court reasoned that:


[A] legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise can hardly have the “effect” of diluting or abridging the right to vote on account of race within the meaning of Section 5. We conclude ... that such an ameliorative new legislative apportionment cannot violate Section 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution. Footnote


The retrogression standard was reaffirmed and its application broadened by the Supreme Court in City of Lockhart v. United States. Footnote In Lockhart, the Court precleared an electoral change that did not improve the position of minority voters. “Although there may have been no improvement in [minority] voting strength, there has been no retrogression either.” Footnote Therefore, the Court held that “[s]ince the new plan did not increase the degree of discrimination against blacks, it was entitled to Section 5 preclearance.” Footnote


Justice Thurgood Marshall, dissenting in Lockhart, argued that “[b]y holding that Section 5 forbids only electoral changes that increase discrimination, the Court reduces Section 5 to a means of maintaining the status quo.” Footnote According to Justice Marshall, the Court's view would permit “the adoption of a discriminatory electoral scheme, so long as the scheme is not more discriminatory that its predecessor” and “is inconsistent with both the language and the purpose” of Section 5. Footnote


As interpreted by the Supreme Court, if an electoral change is not retrogressive, a jurisdiction can satisfy its burden that the electoral change does not have a discriminatory effect. However, a plan that is not retrogressive still may not be entitled to preclearance if a jurisdiction cannot prove an absence of discriminatory purpose. Footnote The factors necessary for the Justice Department to find a discriminatory purpose are unclear, as noted in the discussion of Reno v. Bossier Parish School Board on page 88.


Administrative preclearance. The Department of Justice has promulgated guidelines concerning the preclearance process. Footnote The regulations establish the procedures for the submission of an electoral change to the Department of Justice, the required contents of a submission, and the relevant standards.


In light of the Supreme Court’s decision in Bossier Parish School Bd. questioning the validity of the regulations, Footnote the Department of Justice repealed the part of the Section 5 preclearance standards that required a plan also to comply with Section 2 of the Voting Rights Act. Footnote The new regulations did not differ significantly from the previous guidelines, except as required by Bossier Parish. Future guidelines may recognize the use of the Internet with respect to a submission. We will therefore review the existing guidelines.


Examples of electoral changes subject to preclearance. The guidelines provide that changes affecting voting that are subject to Section 5 include, but are not limited to:

 

•        Any change in qualifications or eligibility for voting;

•        Any change concerning registration, balloting and the counting of votes and any change concerning publicity for or assistance in registration or voting;

•        Any change involving the use of a language other than English in any aspect of the electoral process;

•        Any change in the boundaries of voting precincts or in the location of polling places;

•        Any change in the constituency of an official or the boundaries of a voting unit (through redistricting, annexation, deannexation, incorporation, reapportionment, changing to at-large elections from district elections, or changing to district elections from at-large elections);

•        Any changes in the method of determining the outcome of an election (e.g., by requiring a majority vote for election or the use of a designated post or place system);

•        Any change affecting the eligibility of people to become or remain candidates, to remain holders of elective offices;

•        Any change in the eligibility and qualification procedures for independent candidates;

•        Any change in the term of an elective office or an elected official or in the offices that are elective (e.g., by shortening the term of an office, changing from election to appointment or staggering the terms of offices);

•        Any change affecting the necessity of or methods for offering issues and propositions for approval by referendum; and

•        Any change affecting the right or ability of people to participate in political campaigns that is effected by a jurisdiction subject to the requirement of Section 5. Footnote


Contents of submission. The Department of Justice requests that any “changes affecting voting be submitted as soon as possible after they become final.” Footnote The guidelines specify certain required contents of a submission. Footnote The guidelines also detail certain supplemental material that a jurisdiction should provide. Footnote


Required contents of a submission include:

 

•        A copy of the proposed and existing law;

•        An explanation of the difference between the prior and proposed situations with respect to voting;

•        The name, title, address and telephone number of the person making the submission;

•        The identification of the person or body responsible for making the change and the mode of decision;

•        A statement identifying the authority under which the jurisdiction undertook the change and a description of the procedures the jurisdiction was required to follow in deciding to undertake the change;

•        The date of adoption and the date the change is to take effect;

•        A statement that the change has not yet been enforced or administered or an explanation of why the statement cannot be made;

•        A statement of the reasons for the change and the anticipated effect of the change on members of racial or language minority groups;

•        Any past or present litigation involving the change;

•        A statement that the prior practice and the applicable procedure has been precleared, a statement that preclearance was not required, or an explanation of why the statement cannot be made;

•        Other information that the attorney general determines is required for an evaluation of the purpose or effect of the change. Footnote


For redistricting plans and annexations, the Department of Justice also requires the following information.

 

•        Demographic information, including the total population, voting age population, any population estimates and number of registered voters in the affected area before and after the change by race and language minority group.

•        Maps showing prior and new boundaries of voting units and precincts; location of racial and language minority groups; natural boundaries or geographic features that influenced the selection of boundaries of the prior or new units; and the location of prior and new polling places and registration sites.

•        With respect to annexations, the present and expected future use of the annexed land; an estimate of expected population by race and language group when the anticipated development is completed; and a statement that all prior annexations subject to preclearance have been submitted or a statement that identifies which annexations have not been submitted for preclearance.

•        Previous primary and general election returns, including name and race of each candidate; position sought by each candidate; number of votes received by each candidate by voting precinct; outcome of each contest; and the number of registered voters, by race and language group, for each precinct. Information with respect to elections held within the past ten years will normally be sufficient.

•        Evidence of public notice and participation, including the opportunity for the public to be heard; the opportunity for interested parties to participate in the decision to adopt the proposed change; and an account of the extent to which the participation, especially by minority group members, in fact took place.

•        Evidence that the submission has been made available to the public and that the public has been informed about the availability of the submission.

•        Minority group contacts, including name, address, telephone number and organizational affiliation, if any. Footnote


The Department of Justice encourages interested individuals to comment on submitted plans. Footnote The comments received by the Department of Justice are not required to be publicly released. The Department of Justice will comply with the request of any individual that his or her identity not be disclosed to anyone outside the Department of Justice, to the extent permitted by the Freedom of Information Act. Footnote Note, however, it is the policy of the Department of Justice not to introduce the comments and identity of individuals who request confidentiality as evidence in litigation over the plan, unless the individual waives their prior request for confidentiality or the disclosure is required by the court.


Administrative Procedure


The Department of Justice, through the attorney general, has 60 days in which to interpose an objection to a preclearance submission. Footnote The Department of Justice may request additional information within the period of review and following receipt of the additional information the Department of Justice has an additional 60 days to review the additional information. Footnote A change, either approved or not objected to, may be implemented by the submitting jurisdiction. Without preclearance, proposed changes may not be implemented.


If the Justice Department approves a change, a letter is sent to the submitting jurisdiction informing it of the approval. If the Justice Department objects to the proposed change, the submitting jurisdiction has two methods of recourse. The submitting jurisdiction may seek a declaratory judgment in the U.S. District Court for the District of Columbia, or it may request reconsideration by the Justice Department. Although requests for reconsideration are not subject to the 60-day review period, Justice Department guidelines call for expeditious action.


The Department of Justice may deny preclearance if the submitted plan has a discriminatory effect or purpose. Footnote According to the regulations:


[A] change affecting voting is considered to have a discriminatory effect under section 5 if it will lead to a retrogression in the position of members of a racial or language minority group (i.e. will make members of such a group worse off than they had been before the change) with respect to their opportunity to exercise the electoral franchise effectively. Footnote


The regulations set out certain factors the Department of Justice will consider in determining whether a plan has a discriminatory purpose or effect. Footnote


In addition to denying preclearance if the submitting authority fails to prove that the proposed change does not have a discriminatory purpose or effect, the regulations had provided that the Department of Justice could deny preclearance if it concluded that the submitted electoral change clearly violated Section 2 of the Voting Rights Act. Footnote The Department of Justice repealed the Section 2 preclearance language in May 1998 by repealing 28 C.F.R. 51.55 (b)(2) pursuant to the Supreme Court’s ruling in Bossier Parish. Footnote


By permitting the Department of Justice to deny preclearance on the basis of a clear violation of Section 2, the regulations imposed an additional burden for a jurisdiction to obtain preclearance. The authority of the Department of Justice to deny preclearance on the basis of Section 2 was challenged in Reno v. Bossier Parish School Board. Footnote


In Bossier Parish, a majority of the Supreme Court held that the Department of Justice had exceeded its authority under Section 5 by requiring a jurisdiction to prove that the electoral change did not clearly violate Section 2. The Court held that preclearance cannot be denied because the electoral change violates Section 2. In addition, the Court declined to decide “whether the § 5 purpose inquiry ever extends beyond the search for retrogressive intent.” Footnote According to the Court:


§ 5, we have held, is designed to combat only those effects that are retrogressive ... . To adopt appellants' position, we would have to call into question more than 20 years of precedent interpreting § 5 ... . This we decline to do. Section 5 already imposes upon a covered jurisdiction the difficult burden of proving the absence of discriminatory purpose and effect ... . To require a jurisdiction to litigate whether its proposed redistricting plan also had a dilutive “result” before it can implement the plan—even if the Attorney General bears the burden of proving that “result”—is to increase further the serious federalism costs already implicated by § 5. Footnote


As a result of the Supreme Court's decision in Bossier Parish, the Department of Justice may interpose an objection to a electoral change only if the plan is either retrogressive or evidences a discriminatory purpose. However, the factors that are necessary to determine discriminatory purposes are unclear.


The Court in Bossier Parish directed the lower courts to follow the framework set out in Arlington Heights v. Metropolitan Housing Development Corp. Footnote and its progeny. The Court explained that:


The “important starting point” for assessing discriminatory intent under Arlington Heights is “the impact of the official action, whether it ‘bears more heavily on one race than another ... .’” In a § 5 case, “impact” might include a plan’s retrogressive effect and ... its dilutive impact. Other considerations relevant to the purpose inquiry include, among other things, “the historical background of the [jurisdiction's] decision”; “[t]he specific sequence of events leading up to the challenged decision”; “[d]epartures from the normal procedural sequence”; and “[t]he legislative or administrative history, especially ... [any] contemporary statements by members of the decision making body.” Footnote


Effect Of Preclearance On Section 2 Litigation


Preclearance of an electoral change does not preclude a subsequent Section 2 challenge to the electoral change. Footnote In a number of cases, an electoral change that had been precleared under Section 5 has been held to violate Section 2. Footnote


Bail Out Provisions


The Voting Rights Act does provide a mechanism wherein a jurisdiction could escape preclearance. Jurisdictions that want to escape preclearance could use a process set out in Section 4 of the act, commonly referred to as “bail out.” Footnote A jurisdiction may bail out if it can demonstrate that, during the preceding 10-year period, it has complied with the Voting Rights Act and has undertaken efforts to ensure participation by minorities. Footnote This provision is rarely utilized. Footnote


Conclusion


Since the Supreme Court’s decision in Gingles in 1986, the federal courts have examined a number of issues that were left unaddressed or partially addressed in Gingles.


1. Can Minority Groups Be Aggregated? The first prong of the Supreme Court’s three-part test for determining whether vote dilution has occurred requires proof by the minority group that it is sufficiently large and geographically compact to constitute a majority in a single-member district. Can two different minority groups be aggregated to meet this requirement? Courts have taken different approaches to that question. In League of United Latin American Citizens v. Midland Independent School District, the district court ruled that Hispanic and Black minority populations living within a geographically compact area must be aggregated for the purpose of determining whether the first prong of the test is met. Footnote The court then examined whether the two groups were politically cohesive under the second prong of Thornburg’s three-part test and found that the two groups often voted as a coalition and shared similar political goals—an indication of political cohesiveness. Footnote In Romero v. City of Pomona, the district court ruled that Hispanics and Blacks could not constitute an effective single-member district because they were not politically cohesive. Footnote Although Romero used the second prong of the Thornburg test to address the first prong, its decision apparently would have been the same had it evaluated the two minority groups in the same manner that they were evaluated in Midland.


2. Total Population or Eligible Voters? Several lower courts also have addressed whether the total minority population or only the eligible voting age minority population should be counted in determining whether the minority group can constitute an effective single-member district. Most have decided that an effective single-member district is measured by the number of eligible voting age minorities. Footnote The assertion by the lower court in Gingles v. Edmisten that “no aggregation of less than 50% of an area’s voting age population can possibly constitute an effective voting majority” was left undisturbed if not adopted by implication by the Supreme Court in Thornburg v. Gingles. Footnote This issue is of particular importance to Hispanic groups, whose population may include significant numbers of noncitizens who may not be counted if the jurisdiction requires a voting-majority district.


3. How Much Weight Should Be Given to Other Factors (Multiple Regression Analysis)? In light of the Supreme Court’s emphasis on racial polarization and minority electoral success in proving a vote dilution claim, lower courts have addressed the significance of other factors. Nearly all courts continue to make extensive findings based upon the Senate report factors, with emphasis on the factors of racial polarization, and continue to use the three-part test for minority vote electoral success. Footnote In particular, questions have arisen about the racial polarization factor and whether it is appropriate when examining racially polarized voting to look at other factors such as age, religion, party affiliation, education, etc. to determine whether “race” was the cause of a particular outcome in an election. Justice Brennan, writing for a plurality of the Court in Thornburg, rejected the use of multiple regression analysis in determining racial polarization, stating that “the reasons black and white voters vote differently have no relevance to the central inquiry of Section 2.” Footnote Thus far, lower courts have adhered to the plurality opinion and have rejected defendants’ attempts to use multiple regression analysis to explain why white and minority voters may have voted differently. Footnote


4. When Are Candidates “Minority Supported?” Another unresolved question about racially polarized voting is the point at which candidates become “minority-supported” candidates for purposes of demonstrating political cohesiveness among minorities and minority bloc voting. The Gingles Court stated that political cohesiveness and minority bloc voting occur when a “significant number” of minorities tend to vote for the same candidate. Footnote Although most cases show evidence that more than 50 percent of Black voters prefer Black candidates in most primary and general elections, in at least one case, a Black candidate has been considered a “minority-supported” candidate with just less than 50 percent of the Black vote and in spite of the fact that two white candidates received a higher percentage of the Black vote. Footnote This is arguably inconsistent with Justice Brennan’s statement, writing in the plurality opinion, that “it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important.” Footnote


5. How Do Sections 2 and 5 Interrelate? Finally, an important, yet unresolved question relates to the interrelationship between Section 5 and Section 2 of the act. Enforcement of the Voting Rights Act has enfranchised minority voters and has eliminated many discriminatory electoral and districting schemes. Section 5 applies only to covered jurisdictions. Footnote Section 2, on the other hand—which seeks to prevent a state or political subdivision from diluting voting strength—applies nationwide.


In 1982, when Congress amended Section 2, it reduced the burden of proof necessary for a plaintiff to establish a Section 2 violation. Before the 1982 amendments, a plaintiff had to show that the challenged electoral plan was intentionally designed to dilute the minority vote. The 1982 amendments eliminated the intent requirement and substituted the “results” test. This test enables a plaintiff to prove a Section 2 violation if he can demonstrate that, as a result of the challenged practice or structure, plaintiffs did not have an equal opportunity to participate in the political process and to elect candidates of their choice. Footnote


When a covered jurisdiction attempts to change its electoral laws, it must first seek either preclearance from the Department of Justice or a declaratory judgment from the U.S. District Court for the District of Columbia. Courts have held that, as long as a proposed change does not lead to an actual retrogressive effect in minority voting strength, a declaratory judgment will be granted. Footnote


The holdings in Lockhart and Beer, combined with the 1982 amendments to Section 2, may lead to an anomalous result. Thus, because “Section 5 preclearance will not immunize any change from later challenge by the United States under amended Section 2,” it is conceivable that a change validly precleared under Section 5 still may violate the “results test of Section 2.” Footnote In such a case, even though a covered jurisdiction could implement a proposed change, a party could successfully challenge the change under Section 2. Footnote


The Department of Justice has considered this scenario and believes that it is significantly more likely to occur now than it was in the past, given the Supreme Court’s ruling in Bossier Parish and the consequent repeal of the guideline that allowed denial of preclearance in light of a clear violation of Section 2. Although many of the same factors that would lead to a finding of a Section 2 results violation also are relevant to preclearance determinations, the weight accorded to some of the factors and the overall analysis are significantly different in the context of Sections 2 and 5.


The Supreme Court has held that reapportionment plans prepared and adopted by a federal court that remedy voting rights violations are exempt from Section 5 review. Footnote In McDaniel v. Sanchez, the Court held that a court-ordered remedy that reflects “the policy choices of the elected representatives of the people—no matter what constraints have limited the choices available to them—[is subject to] the preclearance requirement of the Voting Rights Act.” Footnote However, court-ordered plans, which are exempt from Section 5 review, still must meet Section 2 requirements. Footnote


6. Will Influence Districts Receive Greater Consideration in Future Redistricting Cases? Because the Supreme Court has stated so strongly that maximization is not required, influence districts may receive renewed interest. However, any classification by race or predominant focus on race would trigger strict scrutiny and require the same analysis as any claim of vote dilution. If other traditional districting principles were considered in drawing an influence district, race might not be found to predominate.




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This page is maintained by the Redistricting Task Force for the National Conference of State Legislatures
Update: 10/31/03 (psw)
Comments: peter.wattson@senate.leg.state.mn.us