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I have a lot to write about, but first, I wanted to acknowledge the just-passed two-year anniversary of the Texas Election Law Blog.
Two Years Ago
On July 2, 2013, just days after the Supreme Court issued its decision in Shelby County, Alabama v. Holder, I was fired from my job as a staff attorney at the Elections Division of the Texas Secretary of State’s office. My employer’s stated reason for firing me was that I had made intemperate remarks about what I can now call a particularly egregious miscarriage of a special district election in Montgomery County, Texas.
That election is now back in the news, after the 14th Court of Appeals remanded the first criminal case for a new trial.
I started this blog the day after I was fired, because
- My job — to provide unbiased explanation and advice about administering fair and legal elections in the state of Texas — still needs to be done, in part because
- In my professional opinion, the Elections Division at the Texas Secretary of State is now falling down at its mission — not because of the hard-working staff, but because of changes under the previous governor.
Unpacking the details of my termination raises all sorts of questions, not just about my professional qualifications and my flaws or merits individually as an attorney specializing in election-related matters, but also about the role of the Texas Secretary of State as chief elections official for the State of Texas, the complex interactions of money, self-interest, and law in elections administration, the slow diminishment of a once-effective advisory agency over the course of former Governor Perry’s tenure as chief executive officer of the State, and the larger battles over the soul of American democracy that are being fought state-by-state across the United States.
At least initially, I saw this blog as a platform for providing hard-working citizens (including election administrators) with some very modest enhancements to the dissemination of election law information relevant to Texans. Although I’m not a information architect or user experience expert, I was frustrated for years that the Elections Division’s website, while good in many respects, had such a peculiarly structured design. Election law opinions were missing; forms were not not where you’d expect to find them, and so on.
Just putting all the forms in one list was a comparatively easy fix (though I’ve been remiss in keeping it updated; that’s one of my tasks looking forward), and at some level I hoped that my own modest and amateurish improvements would shame top agency decisionmakers into paying attention to the agency’s role as an advisor to local, county, and state officials in elections administration.
What’s Changed for Me
I had been scrupulously nonpartisan while employed at the Secretary of State’s office — party affiliations and policy preferences were outside the ambit of my purview. (I wouldn’t even let my wife put political signs in our yard or bumperstickers on our car.)
I was, and remain, sympathetic to the day-to-day management concerns faced by county clerks and tax assessors who likely would not see eye-to-eye with me on many political questions at a personal level.
While at the Elections Division, and now, party planks and philosophical disagreements never angered me. I’m slow to anger. What did get to me was willful maladministration at the county level. (Here my editor has redacted a few specific examples, noting this blog is not the venue for what is now — since years have passed — lukewarm political chatter.) All that said, however, with almost no exceptions, I liked everyone I talked to — even the people I was annoyed with.
I mean everyone … even the possibly disturbed caller who floridly cursed me as “a maggot on Satan’s cracked hoof.”
All the callers I talked with, day in and day out, are gloriously, endlessly varied human beings, with rich contradictions and complicated feelings, and they were — and are — all trying to various degrees and with varying levels of success to conform their actions to some great social ideal as articulated in our state and federal election laws.
What got to me near the end of my tenure in the Elections Division was the Supreme Court’s decision to dismantle the regulatory framework of the Civil Rights era.
Moving Democracy Backward
Picture I.D. laws, restrictions on volunteer deputy registrars, and racially discriminatory redistricting, as well as Wild West campaign finance laws, stupid residency definitions, fear-driven race baiting, the disruption of polling places, candidate intimidation, and other acts of dirty political pool are all of a package with a more general philosophy adopted by members of the extreme Right — that political coups are preferable to elections, because the “wrong side” sometimes wins elections.
This political strategy is toxic to democracy and to our nation’s founding values. At what point will the extreme Right conclude that overt coups are preferable to elections (or subtle coups), because the “wrong side” sometimes wins elections?
As the mechanisms for free and fair elections are rendered less effective, the resentments of those shut out will grow. As our legislatures and leaders short-sightedly vandalize the instruments of suffrage, they turn the clock back to a time when our cities burned. Our cities are burning again, and will burn again and again until (some) policymakers learn that short-term political victory through anti-democratic means is self-defeating and costly.
A Way Forward
More to come. And your ideas welcome. This is important, folks!
As has been widely reported today, the 5th Circuit did what Professor Hasen and others had pessimistically expected. Citing Purcell v. Gonzalez, the appellate court stayed the injunction issued in Veasey v. Perry because of the nearness of the election. The plaintiffs have appealed the 5th Circuit’s order to the U.S. Supreme Court, where one hopes that common sense will prevail. I would remind the Justices that Texas is about to violate the U.S. Constitution and federal law yet again, as it has for the last three elections.
Justin Levitt’s editorial on this issue is spot-on – only the most disingenuous argument could support the idea that imposition of the Texas voter i.d. law is called for to save the poor voters from confusion because early voting starts up on the 20th, especially when one considers how easily the State transitioned into the prior law when preclearance was denied close to the November election back in 2012, and how quickly the State implemented the 2011 picture i.d. law after the Supreme Court issued its decision in Shelby County v. Holder.
In the latter case, as you will recall, the State announced immediate implementation of the law less than two hours after the decision came out.
Since fairness might be too shocking and upsetting to Texas voters so inured to hardship, the Secretary of State has also announced the cancellation of previously-scheduled mobile voter i.d. stations. (To be fair, these cancellations are almost certainly the result of bureaucratic incompetence, rather than actual malice).
As you know, it’s been widely reported in the national press that after six years as President Obama’s Attorney General, Eric Holder is stepping down. There are all sorts of messages that one can read in the tea leaves here – to the extent that Holder has been an effective A.G., he’s also been a favorite target of criticism from the far right, and it’s possible that as the midterm elections loom, President Obama is trying to neutralize some of that criticism.
The Department of Justice is a huge agency, and I’m sure that anyone working there would agree that it’s not a perfect place – certainly the criminal investigation and criminal prosecution arms of the Department have had their ups and downs over the past half-decade.
Similarly, I’m sure that the rank-and-file employees of the Voting Rights Section could, in moments of candor, express dissatisfaction with one or another aspect of the Department’s management. But no matter what opinion one may have of Attorney General Holder, and regardless of one’s political affiliations, one must agree that the Department of Justice has responded aggressively and consistently with respect to voting rights litigation after Shelby County v. Holder.
I think that on balance, Attorney General Holder’s resignation presages both a bruising confirmation fight for his successor (as predicted by every major media source), and a hit to the Voting Section’s employees’ morale.
Currently, the trial attorneys working for the Department in high-profile cases like the Texas 2011 redistricting case, the Texas voter I.D. case, the Ohio voter registration case, the Wisconsin voter I.D. case, the North Carolina voter I.D. case, and many other less visible voting rights cases, are doing absolutely stellar courtroom work, in both their filed motions and pleadings, and in the oral advocacy that they are doing.
Even if they aren’t interested in the issues being contested in these suits, law school students would do well to study and emulate the lucidity and organization of the Department of Justice-authored briefs that have been filed in these cases. This is top-notch, major league lawyering by many of the nation’s best civil rights litigators.
Such excellent work is possible in part because of the political and institutional support supplied to the Voting Section by Attorney General Holder. My fear is that the Republicans will now shift their resources away from attempting to defend their frankly indefensible restrictions on voting, and instead will use the Senate confirmation hearings to cripple voting rights advocacy.
For instance, here are a couple of illuminating pull quotes from the USA Today story about the A.G.’s resignation:
Majority Leader Mitch McConnell, R-Ky., a Holder critic, said Republicans would scrutinize the next nominee to make sure he or she “finally returns to prioritizing law enforcement over partisan concerns.”
Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee, urged Obama to take his time. “Rather than rush a nominee through the Senate in a lame-duck session, I hope the president will now take his time to nominate a qualified individual who can start fresh relationships with Congress,” he said.
“Prioritizing law enforcement over partisan concerns” should be read between the lines to mean “abandoning voting rights litigation,” because for decades, Republicans have characterized enforcement of the Voting Rights Act as a purely liberal Democratic Party concern.
And “I hope the president will now take his time to nominate a qualified individual” should be read as meaning, “After the November election, and with an (expected) Republican-led House and Senate, President Obama can kiss goodbye any hope of ever getting Senate confirmation of any nominee he chooses from now until the end of his term.”
My hope is that as Attorney General Holder leaves office, his status as a lame-duck head of the Department of Justice will free him to some extent to end his tenure with bold, fearless policy actions. Like maybe … I don’t know … boldly pushing for the enactment of a proposed Civil Rights Act-based set of administrative rules designed to curb the worst excesses of post-Shelby County restrictions on voting. That’s what I’d suggest.
For those of you using web readers, here are the cited links:
In partial satisfaction of her Ph.D., Keesha Middlemass published a dissertation in 2004 that surveyed a specific area of government regulation under the Voting Rights Act. That dissertation (available online through the library of the University of Georgia, at https://getd.libs.uga.edu/pdfs/middlemass_keesha_m_200405_phd.pdf). wasn’t the first scholarship that surveyed the contents of preclearance letters issued under Section 5 of the Voting Rights Act, but it was (as far as I can tell) the first survey that looked specifically at how the Department of Justice’s approach towards the preclearance of or objection to state and local government redistricting plans evolved from the 1960s through the 1990s.
(For those of new who are new to all this talk of “preclearance” and “Section 5” of the Voting Rights Act, a short summary of this topic can be found here: http://www.justice.gov/crt/about/vot/redistricting.php).
In the wake of Shelby County v. Holder, and with the passing of years, one might ask what relevance Ms. Middlemass’s dissertation still holds. The relevance I see is in the dissertation’s documentation of the early and consistent tendency of conservatives to ascribe partisan (i.e., liberal) motives to the generally non-partisan enforcement of the Voting Rights Act, the consistency with which the Department of Justice internalized court decisions relating to redistricting, and the evolution of the administrative guidance (at 28 C.F.R. Part 51) written by the Department of Justice in the wake of a general failure by Congress to provide any sort of specific statutory framework for enforcement of these civil rights laws.
All of these issues remain very much in the front and center of the redistricting debate, even after Shelby County.
I. Methodology and a hint to future researchers
For raw data, Ms. Middlemass sampled 431 written responses by the Department of Justice to preclearance requests associated with state and local redistricting plans. In presenting her sample, the author admitted both that (1) there had to be more approval letters than just the ones she found, but owing to the Voting Section’s notoriously awful filing system, no one could say where the missing letters were. The letters spanned a period between 1970 and 2000, and whether they were a complete sample or not, they displayed a distinct stylistic trend.
There are a couple things that the researcher could have done to beef up her data a little bit. First, in Texas and in other states, state-law equivalents of the Federal Freedom of Information Act generally allow for the retrieval of public documents, such as the complete correspondence files exchanged between local governments and the Voting Section at the Department of Justice. Since part of Ms. Middlemass’s effort was to determine which factors the Department of Justice used in decided to reject a preclearance plan, having the other side of the correspondence would have been helpful.
Second, the problem of missing approval letters may not have been as critical as it appeared. The laws relating to preclearance under the Voting Rights Act provided that the Department of Justice had a 60-day deadline to respond to preclearance requests, or (in effect) forever hold their peace. From time to time, depending on staffing levels and the complexity of the issues being reviewed, relatively non-controversial redistricting efforts may not ever have generated any explicit approval letter, since silence is the same thing as approval.
II. What the research found
Here’s what I took away from this dissertation:
- The Department of Justice serves many competing political interests, and has to walk a tightrope across the partisan divide in order to retain funding and legal authority. At various times, the Executive Branch (during the Nixon and Reagan eras), Congress (when partially or wholly controlled by Republicans), and the courts (e.g.,the U.S. Supreme Court during Rehnquist’s tenure after the Warren and Burger eras) have been hostile to all or part of the idea of preclearance under Section 5 of the Voting Rights Act.
- The assertion that the Department of Justice flaunts it’s power by ignoring Federal court mandates that limit what constitutes voting discrimination, and that the agency improperly tries to force political entities to create a surplus of new minority-ability single-member districts is an old canard, dating back to the 1970s.
- Except for a brief time prior to a substantial limiting of the Voting Rights Act’s requirements (before the Supreme Court took a decidedly more restrictive tack, and adopted the doctrine that redistricting was only infirm if it made minorities worse off than they had previously been), the Department of Justice has been scrupulously careful not to require the creation of new minority-ability voting districts.
- The Voting Rights Act created a number of political vulnerabilities for the Department of Justice, not least of which was the fact that the law didn’t give the Department any explicit rule-making authority to implement the statute, and didn’t include any guidance on how “preclearance” was supposed to work. To the extent that the Department is subjected to criticism for overreaching its authority, that criticism is opportunistic and is made possible by the functional consequences of Congressional inability to actually draft a preclearance law.
- The explicitly temporary nature of the Voting Rights Act also tends to leave the Department of Justice vulnerable, given that the jurisdictions subject to Section 5 preclearance under the Act initially gave reluctant Congressional support to the passage of the Act only because they thought that the law would go away by 1970. The law kept getting renewed in part because with the sole exception of the Voting Rights Act, the last century and a half of U.S. political history has been marked by a Congress that is institutionally incapable of otherwise bringing a conclusive and lasting end to racial discrimination in voting.
- Contrary to the explicit requirements of the Voting Rights Act, noncompliance with the law was widespread below the state level. Many, many covered Section 5 jurisdictions conducted annexations, adopted redistricting plans, and made other election-related changes without ever submitting those changes to the Department of Justice.
2004 may seem like ancient history to some, especially since we currently have no such thing as “preclearance,” and now face a civil-rights landscape very much like the one that existed before 1965, where each individual illegality has to be challenged in court, expensively, inefficiently, and one wrong at a time. But scholarly analysis and debate about how the Section 5 preclearance process was applied can help us figure out what kind of civil-rights enforcement mechanisms we need to create and protect from the vagaries of partisan politics right now.
If we don’t hang together, we will all surely be hung separately.
As legacies go, it’s not ideal – Chief Justice Roberts gets the distinction of having destroyed the single most important piece of civil rights legislation we have – namely the Voting Rights Act. Still, it is the sort of pithy summing up of a career that will make it easier for future generations to remember who he was, when writing obligatory essays on the parallels between Dred Scott, Plessy v. Ferguson, and Shelby County v. Holder.
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
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:
PETITION FOR RULEMAKING TO
PROMULGATE REGULATIONS GOVERNING THE COLLECTION AND REPORTING OF ELECTION-RELATED CHANGES AFTER JUNE 25, 2013, PURSUANT TO THE CIVIL RIGHTS ACT OF 1964
THE UNITED STATES DEPARTMENT OF JUSTICE
April 21, 2014
Submitted by Joseph Kulhavy
I. STATEMENT OF PETITION
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).
II. SUMMARY OF PETITION
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.
III. STATEMENT OF INTEREST
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.
IV. BACKGROUND – CHANGES IN VOTING AND ELECTION PROCEDURES AFTER JUNE 25, 2013
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.
V. LEGAL AUTHORITY TO PROMULGATE RULE
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.
VI. REASONS FOR CREATING RULE
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.
VII. COMMENTS REGARDING STRUCTURE OF PROPOSED RULES
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.
APPENDIX – TEXT OF THE PROPOSED RULES
Title 28: Judicial Administration
PART 42—NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND PROCEDURES
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 email@example.com. 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.
Resurrecting Submissions (But Not Preclearance) Using Title VI of the Civil Rights Act – Tracking Election Procedural Changes After Shelby County
What’s Up With Shelby County v. Holder?
Most readers of this blog already know the answer to that question, but to recap — on June 25, 2013, the United States Supreme Court issued an opinion in a voting rights lawsuit involving Shelby County, Alabama, and the Attorney General of the United States. As court watchers had expected, the Supreme Court found a key section of the Voting Rights Act (Section 5) to be unconstitutional. One consequence of the decision was that a process called “preclearance” ended, meaning that as of June 25, 2013, the U.S. Department of Justice no longer reviews and approves changes in voting procedures that have been adopted in certain jurisdictions.
I think the U.S. Department of Justice (DOJ) has a strong and defensible statutory reason for tracking election procedures across all jurisdictions in the United States, independent of the specific requirement in Section 5 of the Voting Rights Act (VRA) that covered jurisdictions had to submit changes in their voting procedures for preclearance. (For those of you asking, “What the heck is Section 5?” the Voting Section of the Civil Rights Division at DOJ has an excellent short summary of this key element of the Voting Rights Act of 1965, along with historical background.)
Mandatory Notification of Changes in Election Procedures Under Title VI of the Civil Rights Act
I propose that DOJ should promulgate some new rules that would more or less recapitulate the guidelines for preclearance submissions under Section 5 of the Voting Rights Act, but in the context of compliance reporting under Title VI of the Civil Rights Act of 1964 (hereafter “the Civil Rights Act” or “the Act.” With statutes such as the Civil Rights Act of 1964, one has to specify the date, because there are a lot of laws with the name “Civil Rights Act”).
Some explanation is in order for people who may not be familiar with how the Act is organized. The Civil Rights Act of 1964 (along with later amendments) is a breathtakingly broad and powerful response to a century’s worth of endemic racial discrimination; the Act has lots of parts that accomplish different goals, all with the objective of shutting down the often slippery and duplicitous efforts of Southern segregationists to avoid meaningful enforcement against institutional racism.
Because the Act is so large, it is broken down into smaller sections (Titles) that focus on different ways that institutional racism manifests. Title I is the “voting part” of the Civil Rights Act, but it is pretty weak — unlike the Voting Rights Act of 1965, Title I of the Civil Rights Act doesn’t get rid of tests or qualifications to vote, but just requires that such tests be applied fairly. Title II of the Civil Rights Act allows the use of court-issued injunctions against private businesses that cater to the general public but refuse service on the basis of race (examples would include restaurants or hotels that might prohibit African-Americans, or that might offer inferior or different service based on race). Title III of the Civil Rights Act accomplishes the actual desegregation of public accommodations. Title IV desegregates public education, and Title V creates the Commission on Civil Rights.
Title VI (the part of the Civil Rights Act that I’m talking about) prohibits acts of discrimination by agencies or organizations that receive federal financial assistance. I’m focusing on Title VI because that part of the law includes very broad authorization of rulemaking authority by federal agencies such as the DOJ. In terms of rulemaking, Title VI of the Civil Rights Act is very different from Section 5 of the Voting Rights Act, which contains no explicit rulemaking authority.
In fact, one of the limitations of the Voting Rights Act is the incapacity of federal agencies to make use of that law to justify formal administrative enforcement. The Voting Rights Act enables access to the Federal courts in order to protect against discrimination in voting, but it doesn’t explicitly enact much in the way of non-judicial bureaucracy to enforce it.
Some of the other titles in the Civil Rights Act are famous (such as Title VII, which creates equal employment opportunities and guards against discrimination in employment), while others are less well-known (Title VIII authorizes the Commerce Department to collect statistical data on voter registration, and Title IX authorizes removal of civil rights cases from the courtrooms of segregationist Southern judges). There are other titles as well, but as I mentioned, I’m mostly interested in looking at Title VI.
Title VI of the Civil Rights Act and Part 42 of Title 28, Code of Federal Regulations
The rules that Federal agencies adopt are collected into a series of volumes entitled the “Code of Federal Regulations,” which is organized thematically into titles and sections. Title 28 of the Code of Federal Regulations contains rules promulgated by DOJ, and Part 42 of Title 28 contains DOJ rules for enforcing Title VI of the Civil Rights Act of 1964.
This is where my proposed rules would logically be placed, but this is not where you would look to find the “administrative guidance” adopted by DOJ to guide entities in making submissions under Section 5 of the Voting Rights Act. That “guidance” (because, remember, the Voting Rights Act didn’t authorize the creation of agency rules) is found in Part 51 of Title 28.
I mention Part 51 because I freely cut and pasted huge swaths of that preclearance submission guidance into my proposed rules. That’s because I want to enrich and expand the submission process, preserving the administrative apparatus of Section 5 submission as much as possible. I don’t want to reinvent the whole thing because it’s better public policy to build off the established framework.
Thus, 28 C.F.R. Part 42 (the administrative rules promulgated by the DOJ to administer the Civil Rights Act) should be amended to include a new Subpart J (labeled beginning with Sections 42.801 through 42.826) that would recapitulate the structure and contents of the submission guidelines in 28 C.F.R. Part 51, but exclude the enforcement provisions or selective categories of covered jurisdictions (that had previously been addressed in Section 5 of the Voting Rights Act).
Replacing “Submissions” with “Reports”
Notice the stylistic changes I made in the proposed rules. No mention is made of “submissions,” and there’s no mechanism for reviewing the “reports” that federally funded agencies must, under these proposed rules, submit to DOJ. That removal of review is intentional — no longer are jurisdictions (e.g., states, or any part of states, or any other jurisdiction) being singled out for preclearance of their voting changes. Instead, the proposed rules would compel jurisdictions to report voting changes to continue to qualify for federal funding.
Applying the “Report” Requirements to All Political Subdivisions
You’ll also notice something pretty major when you read the proposed rules. As drafted, the rules apply to all political subdivisions, not just in the South or in “trouble spots,” but everywhere. This drafting constitutes a dramatic expansion of reporting requirements, far beyond the old submission process, and it’s not accidental.
First, the expansion would enable DOJ and Congress to acquire the hard data they need to reconfigure and revive the coverage formula in Section 4 of the Voting Rights Act of 1965. Second, the expansion addresses the implicit or explicit complaints of conservative critics of the Voting Rights Act, which was (in a nutshell) that the Voting Rights Act of 1965, as applied, was unfairly burdening the South in comparison to other jurisdictions, without regard to whether those other jurisdictions exhibited patterns of racist behavior.
These Rules Don’t Substitute For a Robust Voting Rights Act
I applaud efforts to fix or rehabilitate the Voting Rights Act of 1965 (and there are all sorts of good proposals, from piggybacking some new “non-binding guidance” onto Section 2 of the Act, to getting Congressional reauthorization of Section 4 with beefed-up sociological data showing that the South is still a hotbed of racial discrimination to a greater degree than are other jurisdictions. See, for example, Christopher Elmendorf and Douglas Spencer, The Geography of Discrimination in Voting: MRP Meets the VRA., UC Davis Legal Studies Research Paper Series No. 339 (May 2013). at 47.)
My proposed “reporting” rules aren’t intended to diminish or reroute efforts to restore Section 4(b) VRA covered jurisdiction formulas. If anything, the proposed rules are intended to complement, but not replace, the submission process. We still need federal preemptive blocking of potentially discriminatory changes in voting procedures (e.g., in addition to voter ID and voter registration laws, the shortening of early voting windows and ending of Sunday voting, distribution of polling places based on population, physical layout of polling places, and so on).
Saving the Voting Rights Act of 1965 is a big, intimidating goal, with complicated political risks. Arguably the House of Representatives has been hijacked by extremists who have no interest in governing the country, the conservative-dominated Supreme Court has already succinctly demonstrated its bias with respect to civil rights laws, and DOJ faces having to litigate, court by court and state by state, to mitigate discriminatory election procedures.
Consider the proposed “reporting” rules as having far more modest goals. The intention here is to recreate the mechanical, or “easy,” part of the submission process while working toward other bigger and harder goals.
Why We Need Something Analogous to Section 5 of the Voting Rights Act Submissions
Section 5 of the Voting Rights Act (that is, preclearance) enabled a federal agency (the Department of Justice) to preemptively shut down state and local legislation that weakened minority voting rights. But preclearance was also a powerful statistical and data-gathering tool for policymakers and planners.
The identification of minority voting interests should be a “best practice” of legislative drafting, but such identification often isn’t done unless there is some external requirement compelling involvement and comments from protected classes of language and racial minority groups. Preclearance submissions enforced greater care in the legislative drafting process across all covered jurisdictions.
Preclearance submissions also encouraged greater awareness by lawmakers of the geographic distribution and demographics of the voting-age population in a covered jurisdiction, and not just for purposes of planning redistricting, but also for placing polling sites and scheduling early voting. Preclearance encouraged accountability to local interests and cut down on accidental errors in voting site placement, protected against the underestimation of the level of language assistance needed in a territory, and encouraged the review and remediation of architectural barriers affecting voters with disabilities.
The administrative framework of at least the reporting part of the preclearance framework has to be rebuilt. As a nation, we can either do it now (when there’s still enough institutional memory and structure to make the process slightly less painful) or we can do it later (when it will be much more expensive and painful) after the successor to Section 4 of the Voting Rights Act of 1965 (in whatever form that future law may exist) finally gets passed.
It’s also time for “non-covered jurisdictions” — that is, the jurisdictions that weren’t identified by the formula for coverage in Section 4(b) of the Voting Rights Act of 1965, and that therefore weren’t subject to the Section 5 preclearance process — to start getting used to the idea of tracking and reporting changes in voting procedures to the DOJ. The stated reasons for historical exemption of most non-Southern jurisdictions merely undercut the goals promoted by the Voting Rights Act, and contributed to the gutting of the law when the Supreme Court ruled that Section 4 of the Voting Rights Act was unconstitutional.
Cost Considerations and Administrative Burdens
It would be misleading to suggest that “reporting” detailed changes in voting procedures wouldn’t take any money or effort. Preclearance submissions were tedious, expensive, and time-consuming. When the Shelby County decision was handed down, we election attorneys were in some sense like kids who had been told that we had a snow day.
We were giddy with excitement that we wouldn’t have to go through the laborious process of tracking and submitting every change in voting procedures to the Voting Section of the Civil Rights Division of the Department of Justice. No more having to read numbing 300-page omnibus bills looking for the one section that might affect election procedures. Suddenly, rooms full of boxed manila folders were free to be used for other things. Shelby County meant no more maintenance of detailed lists of legislative materials dating back to the mid-1970s, and no more endless rounds of phone tag with legislative aides, law firms, and federal preclearance analysts. It would be fair to say we were delighted.
That was what the atmosphere felt like in the Elections Division at the Texas Secretary of State’s office, even among attorneys who were philosophically predisposed to support the Voting Rights Act. I suspect it was the mood elsewhere, given that the immediate practical effect of the verdict in Shelby County v. Holder was the dismantling of a decades-long structure of administrative guidance and office practices to support regular written submissions of detailed dossiers on changes in election procedures. Money that would otherwise have gone toward the Section 5 submission industry was saved for other uses.
I don’t doubt that Shelby County cut down on the billable hours at law firms representing political subdivisions subject to the Section 5 preclearance requirements, shifted the workload of preclearance analysts at DOJ, and cleared out file rooms across the Deep South.
For all I know, the civil servants at DOJ also treated the end of preclearance as a holiday — the administration of preclearance certainly cost money and time for DOJ as well as for the states. Analysts at DOJ would describe the Texas submissions file room (a few years ago, a DOJ analyst told me that Texas alone accounted for half of the submissions received by DOJ each year) as a cramped warren of buckling, teetering towers of cardboard boxes stacked floor to ceiling. Not surprisingly, the staff at the Voting Section of the Civil Rights Division seemed to dread the labor associated with retrieving a specific file from the unruly mess.
But just as every snow day must eventually be made up, our vacation from the mechanical tedium of tracking and reporting changes in voting procedures needs to end. It’s time to get back to work.
Despite the practical unpleasantness and cost involved, I think it is still the case that the reestablishment of some archive of procedural changes in election administration is cheaper if it’s done now, rather than later when years of legislative efforts will have to be retroactively reconstructed.
Reporting Changes in Election Procedures After June 25, 2013
As I mentioned , the Voting Rights Act of 1965 did not provide DOJ with any explicit binding rulemaking authority, and DOJ did not claim rulemaking authority in issuing various guidelines for compliance with the Voting Rights Act. In fact, the administrative procedures for Section 5 preclearance submissions were alternatives to judicial review and therefore not binding on any of the covered jurisdictions.
At least one scholar has speculated that the DOJ’s lack of formal rulemaking authority may have further undermined potential Supreme Court deference to DOJ as an executive agency, and in fact created an atmosphere of “anti-deference.” See Arpit K. Garg, A Deference Theory of Section Five (Draft as of April 1, 2012), online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209636; Jennifer Nou, Sub-Regulating Elections (Public Law and Legal Theory No. 462, 2014) (Chicago Unbound, University of Chicago Public Law and Legal Theory Working Paper), at p. 27.
The reason why the non-binding Section 5 submission “guideline” process was so popular (accounting for well over 99% of all Section 5 preclearances) is that it was so fast and cheap compared to judicial preclearance. With Section 5 reduced to a hollow shell, DOJ now responds to any requests for preclearance with the following boilerplate language:
On June 25, 2013, the United States Supreme Court held that the coverage formula in Section 4(b) of the Voting Rights Act, 42 U.S.C. 1973b(b), as reauthorized by the Voting Rights Act Reauthorization and Amendments Act of 2006, is unconstitutional and can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. Shelby County v. Holder, 570 U.S. ___, 2013 WL 3184629 (U.S. June 25, 2013) (No. 12-96). Accordingly, no determination will be made under Section 5 by the Attorney General on the specified change. Procedures for the Administration of Section 5 of the Voting Rights Act, 28 C.F.R. 51.35. We further note that this is not a determination on the merits and, therefore, should not be construed as a finding regarding whether the specified change complies with any federal voting rights law.