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Monthly Archives: May 2014

Update – That 97-year-old voter could vote after all.

As is so often the case when someone describes an outrage, facts tend to transform the operatic injustice into something decidedly more banal. So is the case with the Dallas-area 97-year-old transplant from out-of-state, whose son contacted my mother to complain that DPS wasn’t issuing his mother a photo I.D., on the grounds that her certification of birth wasn’t the same thing as a birth certificate.

Well, DPS may still be balking on providing the photo I.D., (for reasons relating to proof of continuous residence in the state, I suspect), but the voter in question had already gotten her voter I.D. card some time ago. A post that consequently stirred up all sorts of excitement turned out not to be about a disenfranchisement after all.

For many years, the Texas Department of Public Safety has been in the official I.D. making business. Most commonly, these official I.D.s are drivers’ licenses of various types (commercial, motorcycle, non-commercial, with or without various endorsements or limitations, etc.) DPS also produces I.D.s that are not drivers’ licenses – these are “personal identification cards.” The various ins and outs of getting drivers’ licenses or personal identification cards are established within Chapter 521 of the Texas Transportation Code, wherein lies the sneaky Section 521.1426 that requires proof of a person’s duration of residence in the state.

Then there’s Section 521A.001, the sole section in Chapter 521A of the Transportation Code. That’s the law that governs issuance of “election identification certificates.” And while drivers’ licenses and personal identification cards work as acceptable forms of identification for purposes of voting, drivers’ licenses and personal identification cards are not “election identification certificates.”

To get an election identification certificate, DPS requires that an applicant “furnish to the department the information required by Section 521.142 [of the Transportation Code].” (Tex. Transp. Code Section 521A.001(f)).

Here’s the information required by Section 521.142 of the Transportation Code:

(a) An application for an original license must state the applicant’s full name and place and date of birth.  This information must be verified by presentation of proof of identity satisfactory to the department.  An applicant who is not a citizen of the United States must present to the department documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States before the applicant may be issued a driver’s license.  The department must accept as satisfactory proof of identity under this subsection an offender identification card or similar form of identification issued to an inmate by the Texas Department of Criminal Justice if the applicant also provides supplemental verifiable records or documents that aid in establishing identity.

(b)  The application must include:

(1)  the thumbprints of the applicant or, if thumbprints cannot be taken, the index fingerprints of the applicant;

(2)  a photograph of the applicant;

(3)  the signature of the applicant; and

(4)  a brief description of the applicant.

(c)  The application must state:

(1)  the sex of the applicant;
(2)  the residence address of the applicant, or if the applicant is a federal judge, a state judge, or the spouse of a federal or state judge using the procedure developed under Section 521.121(c), the street address of the courthouse in which the applicant or the applicant’s spouse serves as a federal judge or a state judge;
(3)  whether the applicant has been licensed to drive a motor vehicle before;
(4)  if previously licensed, when and by what state or country;
(5)  whether that license has been suspended or revoked or a license application denied;
(6)  the date and reason for the suspension, revocation, or denial;
(7)  whether the applicant is a citizen of the United States; and
(8)  the county of residence of the applicant.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1413 (S.B. 1317), Sec. 1, and further amended by Acts 2011, 82nd Leg. 1st C.S., Ch. 4 (S.B. 1) Sec. 72.06:

(e)  The application must include any other information the department requires to determine the applicant’s identity, residency, competency, and eligibility as required by the department or state law.

(emphasis not in original) (S.B.1 is one of those huge omnibus bills. To get to Section 72.06 of the bill, go to the end of the bill and work your way backwards).

If Section 521A.001 of the Transportation Code had said something like “information required by Sections 521.142(b)-(c),” there would be less controversy all around.

Luckily, DPS has not interpreted the law to require applicants for election identification cards to complete driver education courses. And luckily, DPS does not (as far as I know) implement the provisions of the amended Section 521.142(e) to require proof of residency for individuals applying for election identification certificates. But notice the above highlighted language? That was added by the 2011 amendment, raising understandable concerns that applicants for election identification would be required to show the duration of their residence in the state if DPS or the state asserted duration of residence as a requirement in the future.

The problems outlined in the prior post still stand for those who want a personal I.D. or a drivers’ license. But as of right now, the homeless and new transplants can still register to vote and get election identification without having to comply with the requirements in Section 521.1426 of the Texas Transportation Code.

The “Same Name” Affidavit

Yesterday my wife called me from our neighborhood polling place – the kindly clerk was going to allow her to vote, but suggested that she might want to sign an affidavit in order to get an updated voter registration certificate. That’s because DPS prints her name as “Rachel Anne Jenkins,” while her voter registration lists her full name “Rachel Anne Owen Jenkins.”

I told her not to worry about it – I seriously doubt that she’s going to run into any trouble in November. But the episode was a reminder that the affidavit (or more properly, the “Voter’s Similar Name Correction Request Form”  is available in those circumstances where the name on the voter registration doesn’t match up with the name on the picture I.D.

The reason why I wasn’t worried is that her name on both forms is substantially similar.

Drawing the Line in Montgomery County

From the Montgomery County Courier comes this amusing/appalling story about electioneering, and the lengths to which the county election administrator has gone to preserve the peace near the main early-voting polling location.

One problem with an approach like this is that it leaves the impression that the distance from a polling place to the area where electioneering can occur has to be measured with precision and marked off. An easier and more common-sense approach is to roughly estimate where signs and shouting supporters can stand so that they won’t interfere with voters attempting to enter the polls.

Maybe the next step should be the erection of a geodesic hemispherical dome over the polling place.


Discovery Pleadings in the Redistricting Lawsuits – Texas Wants Those Embarassing Legislative Emails To Disappear

Not unexpectedly, the State of Texas is arguing that the plaintiffs in the consolidated redistricting case shouldn’t get to see or use select emails that were exchanged between legislative staffers and lawmakers leading up to the controversial 2011 Texas redistricting plan. (See http://txredistricting.org/post/85551572481/state-of-texas-asks-court-to-reconsider-order-directing at the Texas Redistricting and Election Law Blog for links to the judge’s order and the text of the State’s motion to reconsider).

The problem the State faces is twofold. First, some of the most damaging emails have already come out in previous litigation. Second, while the State must be commended for its legal chutzpah, there isn’t actually any such thing as “legislative privilege” in the sense that the defendant is using that term.

To be sure, there is a longstanding and recognized principal in parliamentary law that members of a legislative body should be free to debate without fear of being sued for slander or defamation. In other words, the legislative privilege gives members of the Texas Legislature protection from politically motivated civil prosecution for engaging in legislative debate. You know, the old spirited give-and-take of the lawmaking process. Notice that the protection applies to things that are said right out there in the open – the legislative privilege is a type of traditional legislative immunity from legal prosecution.

The State of Texas is trying to argue that “legislative privilege” is like “attorney-client privilege” or “doctor-patient privilege;” that it is somehow a shield against having to reveal what a legislator or legislative staff member wrote or said.

Why Do Some Elections Have Run-Offs?

The candidates for the Republican Party nomination for Lieutenant Governor in Texas have succeeded in producing one of the nastiest brawls in recent memory, with the nadir (so far) probably being the incumbent David Dewhurst’s cynical disclosure of the challenger Dan Patrick’s medical records. The fight is in advance of Tuesday’s primary run-off election.

Which brings me to three observations:

1. Primaries are weird elections – they are weird in the sense that while they are conducted with all the formality and order of general public elections, they are not, in fact, elections to office. They are mechanisms employed by private political associations to select partisan candidates for the November general elections.

2. Texas primaries are weird primaries – they are weird in the sense that Texas is the only state that imposes the responsibility of conducting the primaries on individual county political parties, which then contract with the county governments to provide the equipment and personnel for the election, and then are reimbursed after the election with state-appropriated funding for the cost of the primary. In every other state that has primary elections, the county, parish, or township government conducts the primary election, without any transfer of funds from the state to the political parties.

3. The timing and organizational schedules of Texas primaries are now labyrinthine and bizarre – the competing political and financial interests of county political parties, candidates for state office, county governments, the State, military and overseas voters, the federal government, candidates for federal office, private contractors, national political parties, independent candidates, and others (potentially including such surprising interests as advertising agencies, school principals, city bond counsels, tourism boards and people scheduling college graduation ceremonies) have collided in ways that could euphemistically be called “interesting.” I mean, just look at this mess. Texas political parties conducted the primary elections on March 4th, and then have the primary run-off resulting from those elections on May 27th. That’s nearly three months of political agony simply to find out who the party faithful want as their candidates for the November election.

Why do primary elections have run-offs? Why aren’t they simply winner-take-all elections like the November election?

The facile answer is that primary elections have run-offs because primary elections are determined by majority vote – but that just prompts the question as to why primary elections are determined by majority (as opposed to plurality) voting.

The more complicated answer is that majority voting cements intra-party support for the party candidate that is ultimately nominated, and that both majority and plurality voting systems are aspects of majoritarian democracy, which is inherently conservative (in the classical sense, not in the political sense), hostile to parliamentary coalition-building, ideologically stable, and slow to change. Majoritarian systems deny power to marginal groups, and discourage meaningful dissent.

That may sound negative, but it isn’t. It isn’t positive either, it’s just what the plurality of us want out of voting and government. We (I mean the plurality of us) want to avoid all the messy bickering and compromise associated with proportionate voting. We want things to stay the same for a long time, and then change quickly and drastically in short, punctuated bursts of complete political turmoil. That’s not good or bad, that’s just what we like. Other cultures prefer fluid, perpetually shifting ideological change, where the the turmoil is constant but muted, and not prone to wrenching, sudden overthrows.

Majoritarian voting isn’t the only game in town, and there are advocates for other forms of voting, and for other ways to choose party candidates. Don’t fall into the habit of believing that things like election methods and calendars are in any sense ideologically neutral.



A Perfidious Assault on Voting Rights

My mom called on behalf of a friend, who is caretaking her 97-year-old mother. Thanks to bureaucratic intransigence and general awfulness, the 97-year-old (who has moved down from Michigan and would like to vote in the upcoming November elections) cannot seem to convince the Texas Department of Public Safety that she actually qualifies for a voter I.D. card.

The problem is that the State of Michigan can only issue the woman a certified copy of a certification of birth, but the DPS license office insists that unless the document is titled “Birth Certificate,” it is unacceptable proof of identity. Such a restrictive interpretation of the statute defining the type of proof needed for a voter i.d. is untenable, and one hopes that wiser heads prevail – the woman has a state-issued document proving her birth in the U.S., notwithstanding that it is a certification of birth rather than a birth certificate.

But in the course of researching the issue, I encountered a truly insidious I.D. requirement that has been in state law for five years, but that for that last few months or so has served as a proxy for restricting the voting rights of a whole class of potential voters, namely the homeless and transient poor.

Texas has not traditionally imposed tests of durational presence as a prerequisite to voting – arguably, a person becomes a citizen of Texas and acquires the qualification to vote merely by domicile within the state. In other words, a person can move to Texas, identify a place as “home” and thereafter participate in the civic life of the community and the state so chosen. Tex. Elec. Code Section 11.001.

But in 2009 (coinciding with a then-abortive push by the Legislature to enforce stricter rules of domicile for voting purposes) the Texas Legislature passed a law specific to qualifying for drivers’ licenses and state-issued i.d. cards. (Section 521.1426, Texas Transportation Code) To get a driver’s license or state i.d., a person must provide two forms of documentary proof of continuous domicile within the state for at least 30 days prior to applying for the i.d. Alternatively, a person may submit affidavit testimony by third-party correspondents (who must themselves provide documentary proof of their own Texas domicile) affirming the applicant’s residence status.

DPS describes the process and provides a link to the affidavit here.

Notice that the documentation of domicile strongly favors those who own property or have income – acceptable documents include utility statements, tax receipts, mortgage documents, etc. It isn’t impossible to get the i.d. if one is homeless (the administrator of a homeless shelter or halfway house can act as the corroborating witness on the affidavit, for example), but it requires fairly sophisticated engagement with the mechanisms of formal institutionalization. If you happen to be living under a bridge, you have to hope that a social worker will be willing to vouch for you and claim that you regularly receive mail at a neighborhood shelter.

And true, a voter registration certificate is itself one of the acceptable documents to prove domicile. But a voter registration certificate is not sufficient in and of itself to establish residence.

So … let’s recap. By law, (see Section 11.001, Texas Election Code) you are citizen of Texas as soon as you permanently reside in Texas. As soon as you permanently reside in Texas, you qualify to vote and can apply for a voter registration certificate. But you can’t use a voter registration certificate by itself to vote. To vote, you need a picture I.D. issued by the Department of Public Safety. But to get a picture I.D., you need to prove that you’ve been domiciled in Texas for at least 30 days. (You’ll also need to prove your citizenship and identity, which, as I have described before, is another sort of fresh hell, but enough about that).

But to prove that you’ve been domiciled in Texas for at least 30 days, you’ll either have to present the documentary proof of your financial respectability (in the form of bank statements, utility bills, and paychecks), or you’ll have to fall back on the mercy of the modern poor house or work farm, getting someone else in a position of paternal responsibility to vouch for you as not being entirely transient and rootless.

The State of Texas (a state whose independence was precipitated by the actions of transient adventurers and freebooters) certainly seems to have put away the “welcome” mat once and for all.

Now, here’s a bit of insidious legal history.

Section 521.1426 of the Transportation Code got added to state law in 2009, but it didn’t really come up on the election law radar, because picture I.D. voting laws didn’t pass in 2009. So there were no implications under Section 5 of the Voting Rights Act for the new “proof you’ve lived here 30 days” requirements for state i.d.s, and (other than maybe a lingering bad feeling about the direction that the law was taking) no formal sense that the then-new law relating to drivers’ licenses needed to be vetted by the U.S. Department of Justice.

Then the war on voting rights began in earnest, and we were subjected to the perfidy and general foulness that is the hallmark of our new undemocratic age. And suddenly in late June of 2013 (while the ink on the decision in Shelby County v. Holder was still drying) the various torturous paths and obstacles to getting a state picture i.d. also magically became new  and wickedly torturous paths and obstacles to voting.

Citizenship in Texas now rings a little hollow, since permanent residence here is no longer enough to qualify you to vote in Texas elections, Section 11.001 of the Election Code be damned.


Texas Bar Offers Continuing Education Webinar on Post-Shelby County Litigation Tactics

I can’t recall when the Texas bar last offered a course on election law litigation, but they’ve got one scheduled for this month, on May 20th. One thing about Texas – this state has always provided a target-rich environment for civil rights litigation, but especially now in the neo-Jim Crow era.

The details on the webinar are available here: http://www.texasbarcle.com/materials/Programs/2973/WebCastInfo.htm

Formal Petition for Rulemaking – Final Draft with DOJ

I was afraid this would be controversial, but judging from the lack of comments, there isn’t much disagreement with the idea that the Voting Section of the Civil Rights Division at the U.S. Department of Justice should review all changes in election procedures by any and all political jurisdictions within the United States, as part of a mechanism to encourage compliance with Title VI of the Civil Rights Act of 1964.

In any case, my petition for rulemaking is now filed with the Office of Legal Policy at DOJ, and the agency has 60 days to issue a response to me.

Thoughts? Opinions? Concerns? I may have filed it already, but I still welcome any suggestions or discussion.

Here’s the text of the rules and argument in favor of adoption, in final form:


April 21, 2014

Submitted by Joseph Kulhavy


Petitioner (Joseph Kulhavy) petitions the Department of Justice (“Department”) to initiate a rulemaking proceeding pursuant to the Administrative Procedures Act, 5 U.S.C. § 533, to promulgate regulations governing the reporting of changes in election-related procedures by state and local political jurisdictions. The Attorney General has rulemaking authority that encompasses the monitoring of compliance with the Civil Rights Act of 1964 by political subdivisions and States receiving Federal financial assistance. 42 U.S.C. § 2000d-2000d-7, Executive Order 12250, 45 Fed. Reg. 72995 (November 2, 1980).


The “preclearance” mechanism supplied by Section 5 of the Voting Rights Act of 1965 and applicable to certain jurisdictions (hereafter “Section 5 preclearance submissions,” “submissions,” or “preclearance”) functioned as an immensely powerful statutory tool for preserving the voting rights of protected classes of minority voters within jurisdictions that had a long and consistent history of discrimination against protected classes of racial or language minority groups. Any legislative, executive, or judicial attempts by those covered jurisdictions to circumvent constitutional guarantees of suffrage were subject to administrative or judicial review and preemption before being implemented.

The United States Supreme Court has determined that Congress overstepped its constitutional authority in categorizing which jurisdictions would be subject to the preclearance requirements, in part because the formula used to determine covered jurisdictions under Section 4 of the Voting Rights Act had not been updated since 1972. The Court consequently ruled that the coverage formula adopted by Congress within Section 4 of the Voting Rights Act was unconstitutional as currently applied. As a consequence, only court-ordered preclearance requirements under the “opt in” provisions of Section 3 of the Voting Rights Act are currently enforceable.

In the absence of Section 5 preclearance submissions, there is no comparable regulatory system for self-reporting by political entities of pending changes to election procedures. For all jurisdictions conducting elections, there is now the risk that if illegal discrimination does occur in the context of voting or election activities, Federal funds may be subsidizing that discrimination, contrary to the express prohibitions of the Civil Rights Act of 1964.

The Petition proposes a framework of administrative rules compelling recipients of Federal financial assistance to identify changes in voting and election procedures. The interim framework would apply broadly to compel record-keeping and compliance audits from all political entities conducting voting or election-related activities.


Joseph Kulhavy (Petitioner) is an election law attorney in private practice in the State of Texas, and is intimately familiar with the suspended Section 5 preclearance process. When employed by the Texas Secretary of State, Mr. Kulhavy submitted Section 5 preclearance requests on behalf of the State of Texas for eight years, and advised smaller political subdivisions regarding the Section 5 preclearance submission process generally. Among other things, the Petitioner has seen firsthand how the Section 5 preclearance submission process improves legislative drafting and constituent awareness of changes in election procedures.

Within hours of the announcement of the decision in Shelby County v. Holder, 570 U.S. ___ (2013), officials in Texas and Florida announced changes in voting that had previously failed to get preclearance from the Department. In the weeks following the decision, formerly covered jurisdictions enacted sweeping changes in the availability of early voting, voter registration requirements, voting hours, the location and number of polling places, and redistricting. Unsurprisingly, such dramatic alterations in State and local voting procedures were met with opposition and discontent, and were the subjects of numerous lawsuits, many of which are still pending.
Unfortunately for policymakers and voters, these dramatic changes occurred in an administrative vacuum, where no mechanism existed to identify, track, and analyze the potential impact of the changes. A data gathering process that operates independently of and under different statutory authority than the Voting Rights Act is urgently needed.


As the agency charged with authority to coordinate enforcement of the Civil Rights Act, the Department has the legal authority to adopt rules to ensure compliance with that law. Executive Order 12250, 45 Fed. Reg. 72995 (November 2, 1980). Specifically, the Office of the President, pursuant to Section 602 of the Civil Rights Act of 1964 (42 U.S.C. § 2000d-1), has delegated to the Attorney General the function vested in the President by Section 602 of the Civil Rights Act of 1964 to issue rules, regulations, or orders of general applicability to prohibit illegal discrimination in any program or activity receiving Federal financial assistance by way of grant, loan, or contract.

The Department coordinates implementation and enforcement by federal executive agencies of the various nondiscrimination provisions of Title VI of the Civil Rights Act of 1964. Within the broader scope of its delegated regulatory authority to ensure compliance with Federal laws, the Department may promulgate rules for data gathering purposes, in order to audit compliance among recipients of Federal financial assistance, and to identify circumstances in which unlawful discrimination may be occurring. Pursuant to this authority, the Department has promulgated a rule for data-gathering and compliance review, at Title 28, Section 42.406, Code of Federal Regulations.

The Department may therefore legitimately adopt a rule or rules requiring State and local recipients of Federal financial assistance to disclose changes in election procedures, to ensure that Federal funds are not subsidizing illegal discriminatory practices.

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

42 U.S.C. § 2000d.

Title VI of the Civil Rights Act of 1964 applies not only to private agencies and programs that receive Federal financial assistance, but to public agencies and programs as well. Political entities including States, counties, townships, parishes, municipalities, regional authorities, and others must similarly avoid excluding persons from participating in or being denied the benefits of, or being subjected to discrimination under any programs or activities that receive Federal financial assistance.

The general infrastructure of voting, elections, political suffrage, participation in civic government, and the exercise of the public franchise are programs or activities subject to compliance review under Title VI, to the extent that the entities conducting the elections receive any Federal financial assistance. That elections and voting are subject to Title VI regulation is made evident by the language of Title VI as amended by the Civil Rights Restoration Act of 1987, to wit:

For the purposes of this subchapter, the term “program or activity” and the term “program” mean all of the operations of–
(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
any part of which is extended Federal financial assistance.
42 U.S.C. § 2000d-4a(1) (emphasis added).
To the extent that any part of any department, agency, special purpose district, or other instrumentality of a State or of a local government receives any Federal assistance, that department, agency, district or other instrumentality is therefore subject to Title VI compliance review with respect to the manner in which that instrumentality conducts voting or makes changes in election procedures.

In its present form, 28 C.F.R. § 42.406 is inadequate to the task of developing and tracking potentially problematic changes in election procedures, because the existing rule (1) imposes no particular format or minimum requirement for election-related information, and (2) has not historically been used to collect information about changes in election-related procedures.

Although it is clear that Title VI compliance reporting applies independent of the nature of Federal financial assistance received by the State or local government entity or department (and therefore Title VI already contains statutory justification for more extensive compliance reporting relating to changes in election procedures), please note that Federal financial assistance specific to election-related activities is given to political jurisdictions, such as funds distributions pursuant to the National Voter Registration Act of 1993, the Help America Vote Act of 2002, the Americans with Disabilities Act of 1990, the Military and Overseas Voter Empowerment Act of 2009, and others.

Pursuant to the Help America Vote Act of 2002 (HAVA), the Election Assistance Commission (EAC) administers six Federal grant programs directly intended to improve the conduct of Federal elections by state and territorial jurisdictions. As of 2010, Congress had authorized the distribution of nearly $3.3 billion in federal funds to political jurisdictions and election programs (see, e.g., Reports on State Expenditures of HAVA funds, at http://www.eac.gov/payments_and_grants/reports_on_state_expenditures_of_hava_funds.aspx)(retrieved March 30, 2014). Most of this money was distributed on a formula basis to individual jurisdictions to replace non-compliant voting systems and to create statewide voter registration databases.

The proposed rules would specify more detailed pre- and post- award compliance reporting under Title VI of the Civil Rights Act of 1964, as amended. In effect, the rules supplement and clarify the existing compliance reporting rule at 28 C.F.R. § 42.406, in order to better address changes in election procedures adopted or proposed for adoption by entities subject to Title VI compliance.

The proposed rules are obviously derived from the existing administrative guidelines found in Title 28 C.F.R. Part 51, but the proposed rules differ from those existing guidelines in several important respects. First, the proposed rules are not intended to serve merely as guidance, but instead constitute regulations for enforcement of 42 U.S.C. § 2000d. Second, the proposed rules mandate the report of changes in election procedures not for the sake of review under the Voting Rights Act, but for the sake of determining eligibility for current and future Federal financial assistance by any department or agency that receives or seeks to receive any Federal financial assistance. Finally, the proposed rules would compel reporting not just from so-called “covered jurisdictions,” as that term is used in the context of the Voting Rights Act, but from all jurisdictions subject to compliance with the Civil Rights Act of 1964.


Title VI of the Civil Rights Act of 1964 provides a robust statutory authority for collecting detailed information from political subdivisions regarding possible changes in voting procedures, the conduct of elections, redistricting, and so on. This statutory authority does not share in the constitutional infirmities, if any, possessed by Section 4 of the Voting Rights Act of 1965, as the authority is not based on Congressional fact-based determinations of prior discriminatory behavior by political subdivisions, and is not in any way tied to or associated with the enforcement provisions of Section 5 of the Voting Rights Act.

The proposed rules open a window for the Department of Justice onto rapidly changing (and otherwise hard-to-track) changes in State and local election procedures, within an established and well-understood infrastructure of prior Title VI litigation, enforcement tools, and Department institutional experience. Such information is critical to assure that discrimination is not being subsidized with Federal assistance.


Title 28: Judicial Administration

Subpart J – Report by Recipients of Federal Financial Assistance of Additional Information Relating to the Conduct of Voting and Elections Under Title VI, Civil Rights Act

§ 42.801 Purpose.
§ 42.802 Definitions.
§ 42.803 Delegation of authority.
§ 42.804 Political subunits.
§ 42.805 Political parties.
§ 42.806 Deadline for written reports under this subpart.
§ 42.807 Scope of requirement.
§ 42.808 Examples of changes.
§ 42,809 Recurrent practices.
§ 42.810 Enabling legislation and contingent or nonuniform requirements.
§ 42.811 Distinction between changes in procedure and changes in substance.
§ 42.812 Special elections.
§ 42.813 Federal court-ordered changes.
§ 42.814 Request for notification concerning voting litigation.
§ 42.815 Form of reports.
§ 42.816 Party and jurisdiction responsible for reporting.
§ 42.817 Delivery of reports.
§ 42.818 General contents of reports.
§ 42.819 Required contents.
§ 42.820 Supplemental contents.
§ 42.821 Procedures for integration of new reports with materials previously submitted to the Department of Justice Under Sections 4(b) and 5 of the Voting Rights Act.

Authority: 42 U.S.C. §§ 2000d through 2000d-7.

§ 42.801 Purpose.
The purpose of this subpart is to clarify implementation of record-keeping, auditing, and reporting provisions of Title VI of the Civil Rights Act of 1964, 78 Stat. 252 (hereafter referred to as the “Act”), to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any election-related program or activity receiving Federal financial assistance from the Department of Justice.

§ 42.802 Definitions.
As used in this part—
Attorney General means the Attorney General of the United States or the delegate of the Attorney General.

Change affecting voting or change means any voting qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on June 25, 2013. Some examples of changes affecting voting are given in § 42.808. Procedures for integration of reporting materials with records formerly provided to the Attorney General in accordance with 28 C.F.R. Part 51 are described in § 42.821.

Jurisdiction refers to any state or political subdivision participating in any program or activity receiving Federal financial assistance.

Reporting is used to refer to the written presentation to the Attorney General by an appropriate official of any change affecting voting or voting activity.

Reporting authority means the jurisdiction on whose behalf a report is made.

Vote and voting activity refers to all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.

§ 42.803 Delegation of authority.
The responsibility and authority for receipt, storage, audit, and accession of reports made pursuant to this subpart has been delegated by the Attorney General to the Assistant Attorney General, Civil Rights Division.

§ 42.804 Political subunits.
All political subunits within a jurisdiction (e.g., counties, cities, school districts) are subject to the reporting requirements of this subpart.

§ 42.805 Political parties.
Certain activities of political parties are subject to the reporting requirements of this subpart. A change affecting voting effected by a political party is subject to this subpart:
(a) If the change relates to a public electoral function of the party and
(b) If the party is acting under authority explicitly or implicitly granted by a jurisdiction or political subunit subject to this subpart.
For example, changes with respect to the recruitment of party members, the conduct of political campaigns, and the drafting of party platforms are not subject to the reporting requirements of this subpart. Changes with respect to the conduct of primary elections at which party nominees, delegates to party conventions, or party officials are chosen are subject to the reporting requirements of this subpart. Where appropriate the term “jurisdiction” includes political parties.

§ 42.806 Deadline for written reports under this subpart.
(a) Written descriptions of changes affecting voting or voting activity should be delivered to the Attorney General as soon as possible after the change has been made, or as needed and when requested by the Attorney General in the course of auditing the distribution of Federal financial assistance.
(b) Responses to requests by the Attorney General for reports under this section are timely if received not later than 30 days after the date the request is transmitted to the jurisdiction. The Attorney General may extend the deadline for response upon request and with a showing of good cause as to why the jurisdiction will be unable to meet the deadline.
(c) The 30-day period shall mean 30 calendar days, with the day of receipt of the report not counted, and with the 30th day ending at 11:59 p.m. Eastern Time of that day. If the final day of the period should fall on a Saturday, Sunday, or any day designated as a holiday by the President or Congress of the United States, or any other day that is not a day of regular business for the Department of Justice, the next full business day shall be counted as the final day of the 30-day period. The date of the Attorney General’s request for report shall be the date on which it is transmitted to the reporting authority by any reasonable means, including placing it in a postbox of the U.S. Postal Service or a private mail carrier, sending it by telefacsimile, email, or other electronic means, or delivering it in person to a representative of the reporting authority.

§ 42.807 Scope of requirement.
The reporting requirement of this subpart applies to any change affecting voting, even though it appears to be minor or indirect, returns to a prior practice or procedure, seemingly expands voting rights, or is designed to remove elements that had affected eligibility to receive Federal financial assistance.

§ 42.808 Examples of changes.
Changes affecting voting include, but are not limited to, the following examples:
(a) Any change in qualifications or eligibility for voting.
(b) Any change concerning registration, balloting, and the counting of votes and any change concerning publicity for or assistance in registration or voting.
(c) Any change with respect to the use of a language other than English in any aspect of the electoral process.
(d) Any change in the boundaries of voting precincts or in the location of polling places.
(e) Any change in the constituency of an official or the boundaries of a voting unit (e.g., through redistricting, annexation, deannexation, incorporation, dissolution, merger, reapportionment, changing to at-large elections from district elections, or changing to district elections from at-large elections).
(f) Any change 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).
(g) Any change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective offices.
(h) Any change in the eligibility and qualification procedures for independent candidates.
(i) Any change in the term of an elective office or an elected official, or any change in the offices that are elective (e.g., by shortening or extending the term of an office; changing from election to appointment; transferring authority from an elected to an appointed official that, in law or in fact, eliminates the elected official’s office; or staggering the terms of offices).
(j) Any change affecting the necessity of or methods for offering issues and propositions for approval by referendum.
(k) Any change affecting the right or ability of persons to participate in pre-election activities, such as political campaigns.
(l) Any change that transfers or alters the authority of any official or governmental entity regarding who may enact or seek to implement a voting qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting.

§ 42.809 Recurrent practices.
Where a jurisdiction implements a practice or procedure periodically or upon certain established contingencies, a change occurs:
(a) The first time such a practice or procedure is implemented by the jurisdiction,
(b) When the manner in which such a practice or procedure is implemented by the jurisdiction is changed, or
(c) When the rules for determining when such a practice or procedure will be implemented are changed.

§ 42.810 Enabling legislation and contingent or nonuniform requirements.
(a) Legislation (1) that enables or permits the State or its political subunits to institute a voting change or (2) that requires or enables the State or its political sub-units to institute a voting change upon some future event or if they satisfy certain criteria, is also subject to the reporting requirement, as is any subsequent implementation of the particular voting change that is enabled, permitted, or required, unless that implementation is explicitly included and described in the report of such parent legislation.
(b) For example, such legislation includes—
(1) Legislation authorizing counties, cities, school districts, or agencies or officials of the State to institute any of the changes described in § 42.808,
(2) Legislation requiring a political subunit that chooses a certain form of government to follow specified election procedures,
(3) Legislation requiring or authorizing political subunits of a certain size or a certain location to institute specified changes,
(4) Legislation requiring a political subunit to follow certain practices or procedures unless the subunit’s charter or ordinances specify to the contrary.

§ 42.811 Distinction between changes in procedure and changes in substance.
The reporting requirements apply equally to both changes in procedure and to the substantive changes resulting from new procedures. For example, if the procedure for the approval of an annexation is changed from city council approval to approval in a referendum, the change in the annexation procedure, as well as any annexation accomplished under the new procedure must be reported.

§ 42.812 Special elections.
(a) The conduct of a special election (e.g., an election to fill a vacancy; an initiative, referendum, or recall election; or a bond issue election) is subject to the reporting requirement to the extent that the jurisdiction makes changes in the practices or procedures to be followed.
(b) Any discretionary setting of the date for a special election or scheduling of events leading up to or following a special election is subject to the reporting requirement.
(c) A jurisdiction conducting a referendum election to ratify a change in a practice or procedure that affects voting may report the change to be voted on at the same time that it reports any changes involved in the conduct of the referendum election.

§ 42.813 Federal court-ordered changes.
(a) In general. Changes affecting voting for which approval by a Federal court is required, or that are ordered by a Federal court, are generally exempt from the reporting requirements of this subpart, except in circumstances where the jurisdiction has altered the manner in which the change is implemented.
(b) Subsequent changes. Where a Federal court-ordered change is not itself subject to the reporting requirement, subsequent changes necessitated by the court order but decided upon by the jurisdiction must be reported. For example, voting precinct and polling changes made necessary by a court-ordered redistricting plan must be reported.
(c) Alteration. Where a Federal court-ordered change at its inception is not subject to report, a subsequent action by the reporting authority demonstrating that the change reflects its policy choices (e.g., adoption or ratification of the change, or implementation in a manner not explicitly authorized by the court) will render the change subject to report with regard to any future implementation.
(d) In emergencies. A Federal court’s authorization of the emergency interim use of a voting change does not exempt any use of that practice not explicitly authorized by the court from subsequent reporting.

§ 42.814 Request for notification concerning voting litigation.
A jurisdiction that becomes involved in any litigation concerning voting is requested to notify the Chief, Voting Section, Civil Rights Division, at the addresses, telefacsimile number, or email address specified in § 42.817.

§ 42.815 Form of reports.
(a) Reports may be made in any written form.
(b) The Attorney General will accept certain machine readable data in the following electronic media: 3.5 inch 1.4 megabyte disk, compact disc read-only memory (CD-ROM) formatted to the ISO-9660/Joliet standard, or digital versatile disc read-only memory (DVD-ROM). Unless requested by the Attorney General, data provided on electronic media need not be provided in hard copy.
(c) All electronic media shall be clearly labeled with the following information:
(1) Reporting authority.
(2) Name, address, title, and telephone number of contact person.
(3) Date of report.
(4) Statement identifying the voting change(s) described in the report.
(d) Each magnetic medium (floppy disk or tape) provided must be accompanied by a printed description of its contents, including an identification by name or location of each data file contained on the medium, a detailed record layout for each such file, a record count for each such file, and a full description of the magnetic medium format.
(e) Text documents should be provided in a standard American Standard Code for Information Interchange (ASCII) character code; documents with graphics and complex formatting should be provided in standard Portable Document Format (PDF). The label shall be affixed to each electronic medium, and the information included on the label shall also be contained in a documentation file on the electronic medium.
(f) All data files shall be provided in a delimited text file and must include a header row as the first row with a name for each field in the data set. A separate data dictionary file documenting the fields in the data set, the field separators or delimiters, and a description of each field, including whether the field is text, date, or numeric, enumerating all possible values is required; separators and delimiters should not also be used as data in the data set. Proprietary or commercial software system data files (e.g., SAS, SPSS, dBase, Lotus 1-2-3) and data files containing compressed data or binary data fields will not be accepted.

§ 42.816 Party and jurisdiction responsible for making reports.
(a) Changes affecting voting shall be reported by the chief legal officer or other appropriate official of the reporting authority or by any other authorized person on behalf of the reporting authority. A State has authority to report any voting change on behalf of its jurisdictions and political subunits. State legislation or other changes undertaken or required by the State shall be reported by the State (except that legislation of local applicability may be reported by political subunits).
(b) A change effected by a political party (see §42.805) may be reported by an appropriate official of the political party.
(c) A change affecting voting that results from a State court order should be reported by the jurisdiction or entity that is to implement or administer the change (in the manner specified by paragraphs (a) and (b) of this section).

§ 42.817 Delivery of reports.
(a) Delivery by U.S. Postal Service. Reports sent to the Attorney General by the U.S. Postal Service, including certified mail or express mail, shall be addressed to the Chief, Voting Section, Civil Rights Division, United States Department of Justice, Room 7254-NWB, 950 Pennsylvania Avenue, NW, Washington, DC 20530.
(b) Delivery by other carriers. Reports sent to the Attorney General by carriers other than the U.S. Postal Service, including by hand delivery, should be addressed or may be delivered to the Chief, Voting Section, Civil Rights Division, United States Department of Justice, Room 7254-NWB, 1800 G Street, NW, Washington, DC 20006.
(c) Electronic reports. Reports may be delivered to the Attorney General through an electronic form available on the website of the Voting Section of the Civil Rights Division at http://www.justice.gov/crt/voting/. Detailed instructions appear on the website. Jurisdictions should answer the questions appearing on the electronic form, and should attach documents as specified in the instructions accompanying the application.
(d) Telefacsimile reports. Reports may be delivered to the Attorney General by telefacsimile to (202) 616-9514. Reports should not be sent to any other telefacsimile number at the Department of Justice. Reports that are voluminous (i.e., over 50 pages, inclusive of all exhibits) should not be sent by telefacsimile.
(e) Email. Reports may be delivered by email to vot1973c@usdoj.gov. The subject line of the email shall include the name of the jurisdiction.
(f) Special marking. The first page of the report, and the envelope (if any), shall be clearly marked: “Report of Information Relating to the Conduct of Voting or Voting Activity By Jurisdiction Receiving Federal Financial Assistance”
(g) The most current information on addresses for, and methods of making reports is available on the Voting Section website at http://www.justice.gov/crt/voting/.

§ 42.818 General contents of report.
(a) The source of any information contained in a report should be identified.
(b) Where an estimate is provided in lieu of more reliable statistics, the report should identify the name, position, and qualifications of the person responsible for the estimate and should briefly describe the basis for the estimate.
(c) Reports should be no longer than is necessary for the presentation of the appropriate information and materials.
(d) The Attorney General will not accept for review any report that fails to describe the subject change in sufficient particularity to satisfy the minimum requirements of § 42.819.
(e) A reporting authority that desires the Attorney General to consider any information supplied as part of an earlier report may incorporate such information by reference by stating the date and subject matter of the earlier report and identifying the relevant information.
(f) Where information requested by this subpart is relevant but not known or available, or is not applicable, the report should so state.

§ 42.819 Required contents.
Each report should contain the following information or documents:
(a) A copy of any ordinance, enactment, order, or regulation embodying the change affecting voting.
(b) A copy of any ordinance, enactment, order, or regulation embodying the voting standard, practice, or procedure that is proposed to be repealed, amended, or otherwise changed.
(c) A statement that identifies with specificity each change affecting voting and that explains the difference between the reported change and the prior law or practice. If the reported change is a special referendum election and the subject of the referendum is a proposed change affecting voting, the report should identify both the special election and the proposed change to be voted on in the referendum.
(d) The name, title, mailing address, and telephone number of the person making the report. Where available, a telefacsimile number and an email address for the person making the report also should be provided.
(e) The name of the reporting authority and the name of the jurisdiction responsible for the change, if different.
(f) If the reporting authority is not from a State or county, the name of the county and State in which the reporting authority is located.
(g) Identification of the person or body responsible for making the change and the mode of decision (e.g., act of State legislature, ordinance of city council, administrative decision by registrar).
(h) A statement identifying the statutory or other authority under which the jurisdiction undertakes the change and a description of the procedures the jurisdiction was required to follow in deciding to undertake the change.
(i) The date of adoption of the change affecting voting.
(j) The date on which the change is to take effect.
(k) A statement that the change has not yet been enforced or administered, or an explanation of why such a statement cannot be made.
(l) Where the change will affect less than the entire jurisdiction, an explanation of the scope of the change.
(m) A statement of the reasons for the change.
(n) A statement of the anticipated effect of the change on members of racial or language minority groups.
(o) A statement identifying any past or pending litigation concerning the change or related voting practices.
(p) For redistrictings and annexations: the items listed under § 42.820(a)(1) and (b)(1); for annexations only: the items listed under § 42.820(c)(3).
(r) Other information that the Attorney General determines is required for an evaluation of the purpose or effect of the change. Such information may include items listed in § 42.820 and is most likely to be needed with respect to redistrictings, annexations, and other complex changes.

§ 42.820 Supplemental contents.
The following information, where pertinent, should be provided in addition to that required by §42.824.
(a) Demographic information.
(1) Total and voting age population of the affected area before and after the change, by race and language group. If such information is contained in publications of the U.S. Bureau of the Census, reference to the appropriate volume and table is sufficient.
(2) The number of registered voters for the affected area by voting precinct before and after the change, by race and language group.
(3) Any estimates of population, by race and language group, made in connection with the adoption of the change.
(4) Demographic data provided on magnetic media shall be based upon the Bureau of the Census Public Law 94-171 file unique block identity code of state, county, tract, and block.
(5) Demographic data on electronic media that are provided in conjunction with a redistricting plan shall be contained in an ASCII, comma delimited block equivalency import file with two fields as detailed in the following table. A separate import file shall accompany each redistricting plan:

Field No. Description Total length Comments
1 PL94-171 reference number: GEOID10 15 (i)
2 District Number 3(No leading zeroes) (ii)

(i) Field 1: The PL 94-171/GEOID10 reference number is the state, county, tract, and block reference numbers concatenated together and padded with leading zeroes so as to create a 15-digit character field; and
(ii) Field 2: The district number is a 3 digit character field with no padded leading zeroes.
Example: 482979501002099,1 482979501002100,3 482979501004301,10 482975010004305,23 482975010004302,101
(6) Demographic data on magnetic media that are provided in conjunction with a redistricting can be provided in shapefile (.shp) spatial data format.
(i) The shapefile shall include at a minimum the main file, index file, and dBASE table.
(ii) The dBASE table shall contain a row for each census block. Each census block will be identified by the state, county, tract and block identifier [GEOID10] as specified by the Bureau of Census. Each row shall identify the district assignment and relevant population for that specific row.
(iii) The shapefile should include a projection file (.prj).
(iv) The shapefile should be sent in NAD 83 geographic projection. If another projection is used, it should be described fully.
(b) Maps. Where any change is made that revises the constituency that elects any office or affects the boundaries of any geographic unit or units defined or employed for voting purposes (e.g., redistricting, annexation, change from district to at-large elections) or that changes voting precinct boundaries, polling place locations, or voter registration sites, maps in duplicate of the area to be affected, containing the following information:
(1) The prior and new boundaries of the voting unit or units.
(2) The prior and new boundaries of voting precincts.
(3) The location of racial and language minority groups.
(4) Any natural boundaries or geographical features that influenced the selection of boundaries of the prior or new units.
(5) The location of prior and new polling places.
(6) The location of prior and new voter registration sites.
(c) Annexations. For annexations, in addition to that information specified elsewhere, the following information:
(1) The present and expected future use of the annexed land (e.g., garden apartments, industrial park).
(2) An estimate of the expected population, by race and language group, when anticipated development, if any, is completed.
(3) A statement that identifies all annexations (and deannexations).
(4) To the extent that the jurisdiction elects some or all members of its governing body from single-member districts, it should inform the Attorney General how the newly annexed territory will be incorporated into the existing election districts.
(d) Election returns. Where a change may affect the electoral influence of a racial or language minority group, returns of primary and general elections conducted by or in the jurisdiction, containing the following information:
(1) The name of each candidate.
(2) The race or language group of each candidate, if known.
(3) The position sought by each candidate.
(4) The number of votes received by each candidate, by voting precinct.
(5) The outcome of each contest.
(6) The number of registered voters, by race and language group, for each voting precinct for which election returns are furnished. Information with respect to elections held during the last ten years will normally be sufficient.
(7) Election related data containing any of the information described above that are provided on magnetic media shall conform to the requirements of § 42.815 (b) through (e). Election related data that cannot be accurately presented in terms of census blocks may be identified by county and by precinct.
(e) Language usage. Where a change is made affecting the use of the language of a language minority group in the electoral process, information that will enable the Attorney General to determine whether the change is consistent with the Act.
(f) Publicity and participation. For reports involving controversial or potentially controversial changes, evidence of public notice, of the opportunity for the public to be heard, and of the opportunity for interested parties to participate in the decision to adopt the proposed change and an account of the extent to which such participation, especially by minority group members, in fact took place. Examples of materials demonstrating public notice or participation include:
(1) Copies of newspaper articles discussing the proposed change.
(2) Copies of public notices that describe the proposed change and invite public comment or participation in hearings and statements regarding where such public notices appeared (e.g., newspaper, radio, or television, posted in public buildings, sent to identified individuals or groups).
(3) Minutes or accounts of public hearings concerning the proposed change.
(4) Statements, speeches, and other public communications concerning the proposed change.
(5) Copies of comments from the general public.
(6) Excerpts from legislative journals containing discussion of a reported enactment, or other materials revealing its legislative purpose.
(g) Availability of the report.
(1) Copies of public notices that announce the report to the Attorney General, inform the public that a complete duplicate copy of the report is available for public inspection (e.g., at the county courthouse) and invite comments for the consideration of the Attorney General and statements regarding where such public notices appeared.
(2) Information demonstrating that the reporting authority, where a report contains magnetic media, made the magnetic media available to be copied or, if so requested, made a hard copy of the data contained on the magnetic media available to be copied.
(h) Minority group contacts. For reports from jurisdictions having a significant minority population, the names, addresses, telephone numbers, and organizational affiliation (if any) of racial or language minority group members residing in the jurisdiction who can be expected to be familiar with the proposed change or who have been active in the political process.

§42.821 Procedures for integration of new reports with materials previously submitted to the Department of Justice Under Sections 4(b) and 5 of the Voting Rights Act.
(a) Report files. The Attorney General shall maintain files for each report received. These files may contain the report, related written materials, correspondence, memoranda, investigative reports, data provided on electronic media, notations concerning conferences with the reporting authority or any interested individual or group, and copies of letters from the Attorney General concerning the report. If the report relates to or arises out of a jurisdiction that had previously been identified as subject to regulation under Section 4(b) of the Voting Rights Act of 1965, as amended, the report file may be filed with and cross-referenced to other files and documents filed in connection with requests for preclearance and correspondence received on or before June 25, 2013 under Section 5 of the Voting Rights Act.
(b) Audit materials. The Attorney General shall maintain records of determinations regarding the availability, limitations on (if any), and dispositions of federal financial assistance affected by each report.
(c) Computer file. Records of all reports and their dispositions by the Attorney General shall be electronically stored.
(d) Copies. The contents of the report files described in this subpart shall be available for copying or public inspection in the same manner and to the same degree as Section 5 submission files described in Part 51 of this title (See Section 51.50), pursuant to written request directed to the Chief, Voting Section, Civil Rights Division, United States Department of Justice, Washington, DC. Such written request may be delivered to the addresses or telefacsimile number specified in § 42.817 or by electronic mail to Voting.Section@usdoj.gov. It is the Attorney General’s intent and practice to expedite, to the extent possible, requests pertaining to reports under this subpart. Those who desire copies of information that has been provided on electronic media will be provided a copy of that information in the same form as it was received. Materials that are exempt from inspection under the Freedom of Information Act, 5 U.S.C. § 552(b), may be withheld at the discretion of the Attorney General. Applicable fees, if any, for the copying of the contents of these files are contained in the Department of Justice regulations implementing the Freedom of Information Act, 28 CFR § 16.10.