[Federal Register Volume 76, Number 73 (Friday, April 15, 2011)]
[Rules and Regulations]
[Pages 21239-21252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9083]
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DEPARTMENT OF JUSTICE
28 CFR Parts 0 and 51
[CRT Docket No. 120; AG Order No. 3262-2011]
Revision of Voting Rights Procedures
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Attorney General finds it necessary to revise the
Department of Justice's ``Procedures for the Administration of section
5 of the Voting Rights Act of 1965.'' The revisions are needed to
clarify the scope of section 5 review based on recent amendments to
section 5, make technical clarifications and updates, and provide
better guidance to covered jurisdictions and interested members of the
public concerning current Department practices. Proposed revised
Procedures were published for comment on June 11, 2010, and a 60-day
comment period was provided.
DATES: The rule will be effective on April 15, 2011.
FOR FURTHER INFORMATION CONTACT: T. Christian Herren, Jr., Chief,
Voting Section, Civil Rights Division, United States Department of
Justice, Room 7254-NWB, 950 Pennsylvania Avenue, NW., Washington, DC
20530, or by telephone at (800) 253-3931.
SUPPLEMENTARY INFORMATION:
Discussion
Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.
1973c, requires certain jurisdictions (listed in the Appendix) to
obtain ``preclearance'' from either the United States District Court
for the District of Columbia or the United States Attorney General
before implementing any new standard, practice, or procedure that
affects voting.
Procedures for the Attorney General's Administration of section 5
were first published in 1971. Proposed Procedures were published for
comment on May 28, 1971 (36 FR 9781), and the final Procedures were
published on September 10, 1971 (36 FR 18186). As a result of the
Department's experience under the 1971 Procedures, changes mandated by
the 1975 Amendments to the Voting Rights Act, and interpretations of
section 5 contained in judicial decisions, proposed revised Procedures
were published for comment on March 21, 1980 (45 FR 18890), and final
revised Procedures were published on January 5, 1981 (46 FR 870)
(corrected at 46 FR 9571, Jan. 29, 1981). As a result of further
experience under the 1981 Procedures, specifically with respect to
redistricting plans adopted following the 1980 Census, changes mandated
by the 1982 Amendments to the Voting Rights Act, and judicial decisions
in cases involving section 5, revised Procedures were published for
comment on May 6, 1985 (50 FR 19122), and final revised Procedures were
published on January 6, 1987 (52 FR 486).
In the twenty-four years since the previous revisions became final,
the Attorney General has had further experience in the consideration of
voting changes; the courts have issued a number of important decisions
in cases involving section 5, and Congress enacted the 2006 amendments
to the Voting Rights Act. This new revision reflects these
developments.
Comments
In response to the Notice of Proposed Rulemaking (``Notice'')
published on June 11, 2010 (75 FR 33205), we received comments from or
on behalf of two national public interest organizations, one research
and educational institution, one national political organization
composed of attorneys, and one individual. All comments received are
available for inspection and copying at www.regulations.gov and at the
Voting Section, Civil Rights Division, Department of Justice,
Washington DC 20530.
The comments received expressed diverse views and were of great
assistance in the preparation of these final revisions to the
Procedures. The final revised Procedures reflect our consideration of
the comments as well as further consideration of sections or topics
that were not the subject of comments.
Section 51.2 Definitions
The purpose of the revision to the definition of ``change affecting
voting'' or ``change'' is to clarify the definition of the benchmark
standard, practice, or procedure. One commenter recommended we revise
this section to reflect that the benchmark is the standard, practice,
or procedure in force or effect at the time of the submission or the
last legally enforceable standard, practice, or procedure in force or
effect in the jurisdiction. We have concluded that no further revision
of this section is warranted. The Voting Section's practice is to
compare the proposed standard, practice, or procedure to the benchmark.
Generally, the benchmark is the standard, practice, or procedure that
has been: (1) Unchanged since the jurisdiction's coverage date; or (2)
if changed since that date, found to comply with section 5 and ``in
force or effect.'' Riley v. Kennedy, 553 U.S. 406, 421 (2008);
Procedures for the Administration of Section 5 of the Voting Rights Act
of 1965, 28 CFR 51.54. Where there is an unsubmitted intervening
change, the Attorney General will make no determination concerning the
submitted change because of the prior unsubmitted change. In such
instances, it is our practice to inform the jurisdiction there is a
prior related change that has not been submitted and that simultaneous
review is required. A standard, practice, or procedure that has been
reviewed and determined to meet section 5 standards is considered to be
in force or effect, even if the jurisdiction never implements the
change because the change is effective as a matter of federal law and
was available for use.
Section 51.3 Delegation of Authority
The purpose of the revisions to the delegation of authority is to
make technical corrections to the delegation of authority from the
Attorney General to the Assistant Attorney General, and from the Chief
of the Voting Section to supervisory attorneys within the Voting
Section, and to conform the Procedures to other parts of Title 28. Two
commenters objected to the revisions, expressing concern that the
delegation of the functions of the Chief to supervisory attorneys in
the Voting Section results in the delegation of section 5 legal review
authority to non-politically appointed attorneys subordinate to the
Section Chief.
[[Page 21240]]
The concerns of these commenters are unfounded. The delegation of
authority in these Procedures is similar to existing delegations. For
example, pursuant to the appendix to 28 CFR Part 0, Subpart J, the
Chief may authorize the Deputy Chief to act on his or her behalf.
Moreover, under the revised Procedures, the Chief needs the concurrence
of the Assistant Attorney General, who is a presidential appointee, to
designate supervisory attorneys to perform section 5 functions.
Accordingly, we decline to revise the section further.
Section 51.9 Computation of Time
The purpose of the revisions to this section is to clarify that the
review period commences when a submission is received by the Department
officials responsible for conducting section 5 reviews and to clarify
the date of the response.
One commenter objected to the commencement of the 60-day review
period upon receipt of the submission by the Voting Section or the
Office of the Assistant Attorney General of the Civil Rights Division
as an unwarranted extension of the 60-day review period. The Federal
Rules of Civil Procedure provide for the designation of a Department
clerical employee to receive summonses on behalf of the Attorney
General. Fed. R. Civ. P. 4(i)(1)(A)(i). Similarly, and for the same
purpose of prompt and efficient routing, the Attorney General has
designated both the Voting Section and the Office of the Assistant
Attorney General of the Civil Rights Division as the proper recipients
for section 5 submissions.
The Department has made one additional edit to this section. As set
forth in the Notice and as described below, a second paragraph is being
added to Sec. 51.37 (Obtaining information from the submitting
authority). To ensure consistency, the reference to Sec. 51.37,
contained in previous versions of the Procedures, is amended to Sec.
51.37(b),
Section 51.13 Examples of Changes
The purpose of this revision is to clarify that the dissolution or
merger of voting districts, de facto elimination of an elected office,
and reallocations of authority to adopt or administer voting practices
or procedures are all subject to section 5 review.
One commenter suggested that we add the extension of a term of
office for an elected official as an example of a covered change in
paragraph (i). We concluded that including this example would provide
additional clarity. To the extent that the extension of an elected
official's term is a discretionary change that affects the next
regularly scheduled election for that office, there is no question that
it constitutes a ``change affecting voting'' covered by section 5.
Additionally, extending the term of a particular office affects the
ability of voters to elect candidates of choice at regularly scheduled
intervals.
The commenter also suggested that paragraph (k), which provides
that changes affecting the right or ability of persons to participate
in ``political campaigns'' are covered under section 5, be expanded to
include ``campaigns or other pre-election activity.'' We agreed that
the phrase ``political campaigns,'' without any elaboration, may carry
partisan connotations not envisioned by the statute. Additionally,
``political campaigns'' may not include all pre-election activity
related to voting, and a somewhat broader construction is consistent
with the broad scope given to ``changes affecting voting'' covered
under section 5. Such changes include any ``voting qualification or
prerequisite to voting or standard, practice, or procedure'' related to
the right to vote, 42 U.S.C. 1973(a), and the Supreme Court has
recognized that voting includes ``all action necessary to make a vote
effective.'' Allen v. State Board of Elections, 393 U.S. 544, 566
(1969) (quoting 42 U.S.C. 1973l). As a result, section 5 coverage
extends to ``subtle, as well as the obvious,'' changes affecting
voting. Allen, 393 U.S. at 565.
Using the phrase ``pre-election activity,'' by itself, however, is
too general and nebulous. As a result, we have revised the paragraph to
reflect that any change affecting the right or ability of persons to
participate in pre-election activity, such as political campaigns, is
subject to review under section 5.
Another commenter objected to the inclusion of paragraph (l) as an
example of changes affecting voting, stating that this change did not
fall within the scope of section 5 coverage. A change in the voting-
related authority of an official or governmental entity does alter
election law and change rules governing voting. Thus, such changes meet
the test of voting relatedness that is at the core of the Court's
decision in Presley v. Etowah County Commission, 502 U.S. 491 (1992).
In addition, a conclusion that such changes are not covered arguably
would be inconsistent with the well-established rule that section 5
covers state enabling legislation that transfers authority to adopt a
voting change from the state to its subjurisdictions. See Allen v.
State Board of Elections, 393 U.S. 544 (1969) (holding that section 5
covered a Mississippi statute that granted county boards of supervisors
the authority to change board elections from single-member districts to
at-large voting).
Section 51.18 Federal Court-Ordered Changes
The purpose of the revisions to this section is to clarify the
principle that section 5 review ordinarily should precede other forms
of court review, that a court-ordered change that initially is not
subject to section 5 may become covered through subsequent actions
taken by the affected jurisdiction, and that the interim use of an
covered change before it is established that such change complies with
section 5 should be ordered by a court only in emergency circumstances.
One commenter opposed the changes contained in the section stating
that the revisions appear to grant federal courts greater authority
than the case law recognizes to implement voting changes that are
subject to, but not yet reviewed under, section 5 on an emergency
basis. Although that was not the intent of the revisions, we have
modified Sec. 51.18(a) to clarify that it reflects existing judicial
precedent. After further consideration, we believe that, other than
renumbering the paragraph as Sec. 51.18(d), it is appropriate not to
make any change to Sec. 51.18(c) as it currently exists in the
Procedures.
Section 51.28 Supplemental Contents
The proposed revision to paragraph (a) was omitted from the June
11, 2010, Notice of Proposed Rulemaking in error. The purpose of the
revision is to make purely technical changes to the format in which
information may be submitted to the Attorney General electronically. In
addition, since the publication of the Notice, the Census Bureau has
renamed the 15-character geographic identifier specified in paragraph
(b); the final Procedures reflect this change in nomenclature.
Section 51.29 Communications Concerning Voting Changes
The purpose of the revisions to this section is to clarify the
addresses and methods by which persons may provide written comments on
section 5 submissions and to clarify the circumstances in which the
Department may withhold the identity of those providing comments on
section 5 submissions.
One commenter objected to the nondisclosure of the identity of an
individual or entity where an assurance of confidentiality may
reasonably be implied from the circumstances of the communication. The
Department believes, however, that communications
[[Page 21241]]
where confidentiality can reasonably be implied are within the scope of
information that ``could reasonably be expected to disclose the
identity of a confidential source.'' 5 U.S.C. 552(b)(7). Accordingly,
this determination about confidentiality is within the scope of Section
552(b) concerning exemptions under both the Freedom of Information and
the Privacy Acts.
Section 51.37 Obtaining Information From the Submitting Authority
The purpose of the revisions to this section is to clarify the
procedures for the Attorney General to make oral and written requests
for additional information regarding a section 5 submission.
One commenter recommended that we revise the paragraph concerning
oral requests to make clear that the Attorney General reserves the
authority to restart the 60-day review period upon receipt of material
provided in response to the Attorney General's first such request made
with respect to a submission, and that responses to an oral request do
not affect the running of the 60-day period once a written request for
information is made.
We declined to amend the proposed language regarding responses to
an oral request because as the Procedures currently exist the Attorney
General may request further information within the new 60-day period
following the receipt of a response from the submitting authority to an
earlier written request, but such a request shall not suspend the
running the 60-day period, nor shall the Attorney General's receipt of
such further information begin a new 60-day period. Moreover, Sec.
51.39 provides that we may determine that information supplied in
response to an oral request in the initial review period materially
supplements the pending request such that it does extend the 60-day
period.
We did conclude, however, on the basis of the comment that we
received, that a reordering of the paragraphs would add clarity to the
section and make it more useful.
Section 51.40 Failure To Complete Submissions
As described above, the paragraphs of Sec. 51.37 are being
reordered. To ensure consistency, the reference to Sec. 51.37(a) in
previous versions of the Procedures is amended to Sec. 51.37(b).
Section 51.48 Decision After Reconsideration
The purpose of the revisions to this section is to clarify the
manner in which the 60-day requirement applies to reconsideration
requests and revise language to conform to the substantive section 5
standard in the 2006 amendments to the Act.
One commenter objected to the revisions in paragraph (a),
expressing a concern that the revisions permit the Attorney General to
exceed 60 days for the reconsideration of an objection. Section 51.48
provides that the 60-day reconsideration period may be extended to
allow a 15-day decision period following a conference held pursuant to
Sec. 51.47. Moreover, the courts have held that when a submitting
jurisdiction deems its initial submission on a reconsideration request
to be inadequate and decides to supplement it, the 60-day period is
commenced anew. The purpose of this interpretation is to provide the
Attorney General time to give adequate consideration to materials
submitted in piecemeal fashion. City of Rome v. United States, 446 U.S.
156, 171 (1980).
Section 51.50 Records Concerning Submissions
The purpose of the revision to this section is to clarify the
procedures regarding access to section 5 records. One commenter opposed
the changes to paragraph (b) and conveyed concerns that these changes
will result in the removal of record keeping with regard to objection
files.
Under paragraph (a), the Voting Section continues to maintain a
section 5 file for each submission, including objection files.
Accordingly, all appropriate records continue to be maintained with
regard to all section 5 submissions.
Section 51.52 Basic Standard
The purpose of the revision to this section is to clarify the
substantive standard so as to reflect the 2006 amendments to the Act
and the manner in which the Attorney General will evaluate submissions
under section 5.
One commenter suggested that paragraph (a) be amended further to
reflect the fact that the Attorney General ``shall apply the same
standard of review,'' instead of ``shall make the same determination,''
that would be made by a court in an action for a declaratory judgment
under section 5. The section refers to making a ``determination'' as
the activity that both the Attorney General and the district court
undertake, i.e., deciding whether the change complies with section 5,
as opposed to the resulting substantive decision. Therefore, we
concluded that no further revision to the paragraph is warranted.
Another commentator suggested we replace ``purpose and effect''
with ``purpose or effect'' in paragraph (c). Although we decided not to
incorporate the commentator's exact change, we did decide that further
refinement of the paragraph would provide more clarity. Therefore, the
paragraph will reflect that in those situations where the evidence as
to the purpose or effect of the change is conflicting and the Attorney
General is unable to determine that the change is free of both the
prohibited discriminatory purpose and effect, the Attorney General will
interpose an objection. Evers v. State Board of Election Commissioners,
327 F. Supp. 640 (S.D. Miss 1971).
Section 51.54 Discriminatory Purpose and Effect
One commenter suggested various minor edits to the proposed
language. We declined to make these changes. The proposed language
reflects our extensive experience gained over the years in our
administrative review of section 5 changes, while avoiding redundancy.
We did edit the language of paragraph (c) to reflect that the
statutory language refers to a change in a standard, practice, or
procedure affecting voting, not only a practice or procedure.
Section 51.57(e) Relevant Factors
One commenter suggested that we include ``contemporaneous
statements and viewpoints held by decision-makers'' in the list of
relevant factors. Such statements are an evidentiary source cited by
the Court in its opinion in Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 268 (1977), and
therefore we have revised the section to reflect the Court's holding
more completely.
Section 51.58(b)(2) Background Factors
One commenter suggested that this paragraph be revised to state
that whether ``election-related activities,'' instead of ``political
activities,'' are racially segregated or exclusionary constitutes
important background information when making section 5 determinations.
The proposed paragraph provided that the Attorney General will consider
the ``extent to which voting in the jurisdiction is racially polarized
and political activities are racially segregated.'' Courts in cases
assessing whether the constitutional guarantees afforded to persons to
exercise the franchise without discrimination have been infringed have
often used the words ``electoral'' and ``political'' as synonyms for
each other. See, e.g., Harper v. Virginia State Board of Elections, 383
U.S. 663, 667-68
[[Page 21242]]
(1966); see also Johnson v. Miller, 864 F. Supp. 1354, 1386-87 (S.D.
Ga. 1994) (considering a claim under section 2 of the Voting Rights
Act). These terms are similarly synonymous with respect to section 5,
which also concerns the ability of voters to participate in the
electoral process. After careful consideration of the comment, we
determined that ``election-related activities'' provides greater
clarity than ``political activities'' and revised the section
accordingly.
Section 51.59 Redistricting Plans
Two commenters recommended various additions or deletions to
paragraph 51.59(a). Because these factors are not intended to be
exhaustive, not all factors are listed. Rather, the factors that are
listed are illustrative, intended to provide guidance to jurisdictions
regarding redistricting plans.
Other commenters suggested we delete or revise certain previously
existing factors described in the paragraph. The Attorney General has,
however, repeatedly cited factors identified in the section in past
objection letters. Additionally, courts have cited ``traditional
redistricting principles,'' such as preserving recognized communities
of interest and maintaining political and geographical boundaries, as
relevant factors in a section 5 analysis. Colleton County Council v.
McConnell, 201 F. Supp. 2d 618, 647 (D.S.C. 2002) (citing S.C. State
Conference of Branches of the NAACP v. Riley, 533 F. Supp. 1178, 1180
(D.S.C.), aff'd, 459 U.S. 1025 (1982)). See generally Guidance
Concerning Redistricting Under Section 5 of the Voting Rights Act, 76
FR 7470, 7472 (2011).
One commenter suggested we amend paragraph 51.59(a)(7) to focus on
whether a proposed plan is inconsistent with the jurisdiction's ``long-
held'' redistricting standards, instead of the jurisdiction's ``stated
standards.'' The commenter believes that by adding the term ``long-
held,'' jurisdictions will be discouraged from adopting ad hoc
redistricting principles to insulate a redistricting plan during
section 5 review. The current factors, particularly with regards to
discriminatory purpose, encapsulate scenarios where a jurisdiction
adopts pretextual or unusual redistricting criteria. The Procedures
should not be interpreted to discourage jurisdictions from considering
traditional redistricting principles such as one-person, one-vote, or
maintaining natural political or geographic boundaries, even if they
have not done so in the past. Bush v. Vera, 517 U.S. 952, 980-81
(1996). Therefore, we decline to revise these factors further.
Section 51.59(b) Discriminatory Purpose
Several commenters suggested this paragraph be revised in the
interest of clarity. After reviewing the language, we agreed that it
did not clearly reflect the relevant case law on this point and that
some clarification would be helpful. We revised the paragraph
accordingly.
Additional Provisions
One commenter suggested the addition of several provisions related
to the substantive standards to be employed during the review of
redistricting plans. The proposed revisions go beyond the scope of
these Procedures.
Administrative Procedure Act
This rule amends interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice and
therefore the notice requirement of 5 U.S.C. 553(b) is not mandatory.
Although notice and comment was not required, we nonetheless chose to
offer the proposed rule for notice and comment.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this rule and by approving it
certifies that this rule will not have a significant economic impact on
a substantial number of small entities because it applies only to
governmental entities and jurisdictions that are already required by
section 5 of the Voting Rights Act of 1965 to submit voting changes to
the Department of Justice, and this rule does not change this
requirement. It provides guidance to such entities to assist them in
making the required submissions under section 5. Further, a Regulatory
Flexibility Analysis was not required to be prepared for this rule
because the Department of Justice was not required to publish a general
notice of proposed rulemaking for this matter.
Executive Order 12866
This rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation. The Department of Justice has
determined that this rule is not a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review, and accordingly this rule has not been reviewed by the Office
of Management and Budget. The amendments made by this rule clarify the
scope of section 5 review based on recent amendments to section 5, make
certain technical clarifications and updates, and provide better
guidance to covered jurisdictions and citizens. In many instances, the
amendments describe longstanding practices of the Attorney General in
his review of section 5 submissions.
Executive Order 13132--Federalism
This rule does not have federalism implications warranting the
preparation of a Federalism Assessment under section 6 of Executive
Order 13132 because the rule does not alter or modify the existing
statutory requirements of section 5 of the Voting Rights Act imposed on
the States, including units of local government or political
subdivisions of the States.
Executive Order 12988--Civil Justice Reform
This document meets the applicable standards set forth in sections
3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
List of Subjects in 28 CFR Parts 0 and 51
Administrative practice and procedure, Archives and records,
Authority delegations (government agencies), Civil rights, Elections,
Political committees and parties, Voting rights.
Accordingly, by virtue of the authority vested in me as Attorney
General, including 5 U.S.C. 301, 28 U.S.C. 509, 510, and 42 U.S.C.
1973b, 1973c, the following amendments are made to Chapter I of Title
28 of the Code of Federal Regulations:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for Part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510.
Subpart J--Civil Rights Division
0
2. In Sec. 0.50, revise paragraph (h) to read as follows:
[[Page 21243]]
Sec. 0.50 General functions.
* * * * *
(h) Administration of sections 3(c) and 5 of the Voting Rights Act
of 1965, as amended (42 U.S.C. 1973a(c), 1973c).
* * * * *
PART 51--PROCEDURES FOR THE ADMINISTRATION OF SECTION 5 OF THE
VOTING RIGHTS ACT OF 1965.
0
3. The authority citation for Part 51 is revised to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, and 42 U.S.C.
1973b, 1973c.
0
4. In Sec. 51.1, revise paragraph (a)(1) to read as follows:
Sec. 51.1 Purpose.
(a) * * *
(1) A declaratory judgment is obtained from the U.S. District Court
for the District of Columbia that such qualification, prerequisite,
standard, practice, or procedure neither has the purpose nor will have
the effect of denying or abridging the right to vote on account of
race, color, or membership in a language minority group, or
* * * * *
0
5. In Sec. 51.2, revise the definition for ``Act''; remove the
definition of ``Change affecting voting''; and add a new definition of
``Change affecting voting or change'' in alphabetical order to read as
follows:
Sec. 51.2 Definitions.
* * * * *
Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended
by the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act
Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate
Act, 84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat.
400, the Voting Rights Act Amendments of 1982, 96 Stat. 131, the Voting
Rights Language Assistance Act of 1992, 106 Stat. 921, the Fannie Lou
Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006, 120 Stat. 577, and the Act
to Revise the Short Title of the Fannie Lou Hamer, Rosa Parks, and
Coretta Scott King Voting Rights Act Reauthorization and Amendments Act
of 2006, 122 Stat. 2428, 42 U.S.C. 1973 et seq. Section numbers, such
as ``section 14(c)(3),'' refer to sections of the Act.
* * * * *
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 the date
used to determine coverage under section 4(b) or from the existing
standard, practice, or procedure if it was subsequently altered and
precleared under section 5. In assessing whether a change has a
discriminatory purpose or effect, the comparison shall be with the
standard, practice, or procedure in effect on the date used to
determine coverage under section 4(b) or the most recent precleared
standard, practice, or procedure. Some examples of changes affecting
voting are given in Sec. 51.13.
* * * * *
0
6. Revise Sec. 51.3 to read as follows:
Sec. 51.3 Delegation of authority.
The responsibility and authority for determinations under section 5
and section 3(c) have been delegated by the Attorney General to the
Assistant Attorney General, Civil Rights Division. With the exception
of objections and decisions following the reconsideration of
objections, the Chief of the Voting Section is authorized to perform
the functions of the Assistant Attorney General. With the concurrence
of the Assistant Attorney General, the Chief of the Voting Section may
designate supervisory attorneys in the Voting Section to perform the
functions of the Chief.
0
7. Revise Sec. 51.5 to read as follows:
Sec. 51.5 Termination of coverage.
(a) Expiration. The requirements of section 5 will expire at the
end of the twenty-five-year period following the effective date of the
amendments made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott
King, C[eacute]sar E. Ch[aacute]vez, Barbara C. Jordan, William C.
Vel[aacute]squez, and Dr. Hector P. Garcia Voting Rights Act
Reauthorization and Amendments Act of 2006 (VRARA), which amendments
became effective on July 27, 2006. See section 4(a)(8) of the VRARA.
(b) Bailout. Any political subunit in a covered jurisdiction or a
political subdivision of a covered State, a covered jurisdiction or a
political subdivision of a covered State, or a covered State may
terminate the application of section 5 (``bailout'') by obtaining the
declaratory judgment described in section 4(a) of the Act.
0
8. Revise Sec. 51.6 to read as follows:
Sec. 51.6 Political subunits.
All political subunits within a covered jurisdiction (e.g.,
counties, cities, school districts) that have not terminated coverage
by obtaining the declaratory judgment described in section 4(a) of the
Act are subject to the requirements of section 5.
0
9. Revise Sec. 51.9 to read as follows:
Sec. 51.9 Computation of time.
(a) The Attorney General shall have 60 days in which to interpose
an objection to a submitted change affecting voting for which a
response on the merits is appropriate (see Sec. 51.35, Sec. 51.37).
(b) The 60-day period shall commence upon receipt of a submission
by the Voting Section of the Department of Justice's Civil Rights
Division or upon receipt of a submission by the Office of the Assistant
Attorney General, Civil Rights Division, if the submission is properly
marked as specified in Sec. 51.24(f). The 60-day period shall
recommence upon the receipt in like manner of a resubmission (see Sec.
51.35), information provided in response to a written request for
additional information (see Sec. 51.37(b)), or material, supplemental
information or a related submission (see Sec. 51.39).
(c) The 60-day period shall mean 60 calendar days, with the day of
receipt of the submission not counted, and with the 60th 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 60-
day period. The date of the Attorney General's response shall be the
date on which it is transmitted to the submitting 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 submitting authority.
0
10. In Sec. 51.10, revise paragraph (a) to read as follows:
Sec. 51.10 Requirement of action for declaratory judgment or
submission to the Attorney General.
* * * * *
(a) Obtain a judicial determination from the U.S. District Court
for the District of Columbia that the voting change neither has the
purpose nor will have the effect of denying or abridging the right to
vote on account of race, color, or membership in a language minority
group.
* * * * *
0
11. Revise Sec. 51.11 to read as follows:
Sec. 51.11 Right to bring suit.
Submission to the Attorney General does not affect the right of the
[[Page 21244]]
submitting authority to bring an action in the U.S. District Court for
the District of Columbia for a declaratory judgment that the change
affecting voting neither has the purpose nor will have the effect of
denying or abridging the right to vote on account of race, color, or
membership in a language minority group.
0
12. Revise Sec. 51.12 to read as follows:
Sec. 51.12 Scope of requirement.
Except as provided in Sec. 51.18 (Federal court-ordered changes),
the section 5 requirement 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
the elements that caused the Attorney General to object to a prior
submitted change. The scope of section 5 coverage is based on whether
the generic category of changes affecting voting to which the change
belongs (for example, the generic categories of changes listed in Sec.
51.13) has the potential for discrimination. NAACP v. Hampton County
Election Commission, 470 U.S. 166 (1985). The method by which a
jurisdiction enacts or administers a change does not affect the
requirement to comply with section 5, which applies to changes enacted
or administered through the executive, legislative, or judicial
branches.
0
13. In Sec. 51.13, revise paragraphs (e), (i), and (k) and add
paragraph (l) to read as follows:
Sec. 51.13 Examples of changes.
* * * * *
(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).
* * * * *
(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).
* * * * *
(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.
0
14. Revise Sec. 51.18 to read as follows:
Sec. 51.18 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
exempt from section 5 review only where the Federal court prepared the
change and the change has not been subsequently adopted or modified by
the relevant governmental body. McDaniel v. Sanchez, 452 U.S. 130
(1981). (See also Sec. 51.22.)
(b) Subsequent changes. Where a Federal court-ordered change is not
itself subject to the preclearance requirement, subsequent changes
necessitated by the court order but decided upon by the jurisdiction
remain subject to preclearance. For example, voting precinct and
polling changes made necessary by a court-ordered redistricting plan
are subject to section 5 review.
(c) Alteration in section 5 status. Where a Federal court-ordered
change at its inception is not subject to review under section 5, a
subsequent action by the submitting 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 review under section 5
with regard to any future implementation.
(d) In emergencies. A Federal court's authorization of the
emergency interim use without preclearance of a voting change does not
exempt from section 5 review any use of that practice not explicitly
authorized by the court.
0
15. Revise Sec. 51.19 to read as follows:
Sec. 51.19 Request for notification concerning voting litigation.
A jurisdiction subject to the preclearance requirements of section
5 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
Sec. 51.24. Such notification will not be considered a submission
under section 5.
0
16. In Sec. 51.20, revise paragraphs (b) through (e) and add a new
paragraph (f) to read as follows:
Sec. 51.20 Form of submissions.
* * * * *
(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) Submitting authority.
(2) Name, address, title, and telephone number of contact person.
(3) Date of submission cover letter.
(4) Statement identifying the voting change(s) involved in the
submission.
(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.
0
17. Revise Sec. 51.21 to read as follows:
Sec. 51.21 Time of submissions.
Changes affecting voting should be submitted as soon as possible
after they become final, except as provided in Sec. 51.22.
0
18. Revise Sec. 51.22 to read as follows:
[[Page 21245]]
Sec. 51.22 Submitted changes that will not be reviewed.
(a) The Attorney General will not consider on the merits:
(1) Any proposal for a change submitted prior to final enactment or
administrative decision except as provided in paragraph (b) of this
section.
(2) Any submitted change directly related to another change that
has not received section 5 preclearance if the Attorney General
determines that the two changes cannot be substantively considered
independently of one another.
(3) Any submitted change whose enforcement has ceased and been
superseded by a standard, practice, or procedure that has received
section 5 preclearance or that is otherwise legally enforceable under
section 5.
(b) For any change requiring approval by referendum, by a State or
Federal court, or by a Federal agency, the Attorney General may make a
determination concerning the change prior to such approval if the
change is not subject to alteration in the final approving action and
if all other action necessary for approval has been taken. (See also
Sec. 51.18.)
0
19. Revise Sec. 51.23 to read as follows:
Sec. 51.23 Party and jurisdiction responsible for making submissions.
(a) Changes affecting voting shall be submitted by the chief legal
officer or other appropriate official of the submitting authority or by
any other authorized person on behalf of the submitting authority. A
State, whether partially or fully covered, has authority to submit any
voting change on behalf of its covered jurisdictions and political
subunits. Where a State is covered as a whole, State legislation or
other changes undertaken or required by the State shall be submitted by
the State (except that legislation of local applicability may be
submitted by political subunits). Where a State is partially covered,
changes of statewide application may be submitted by the State.
Submissions from the State, rather than from the individual covered
jurisdictions, would serve the State's interest in at least two
important respects: first, the State is better able to explain to the
Attorney General the purpose and effect of voting changes it enacts
than are the individual covered jurisdictions; second, a single
submission of the voting change on behalf of all of the covered
jurisdictions would reduce the possibility that some State acts will be
legally enforceable in some parts of the State but not in others.
(b) A change effected by a political party (see Sec. 51.7) may be
submitted by an appropriate official of the political party.
(c) A change affecting voting that results from a State court order
should be submitted 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).
0
20. Revise Sec. 51.24 to read as follows:
Sec. 51.24 Delivery of submissions.
(a) Delivery by U.S. Postal Service. Submissions 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. Submissions 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 submissions. Submissions 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 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 submissions. In urgent circumstances, submissions
may be delivered to the Attorney General by telefacsimile to (202) 616-
9514. Submissions should not be sent to any other telefacsimile number
at the Department of Justice. Submissions that are voluminous should
not be sent by telefacsimile.
(e) Email. Submissions may not be delivered to the Attorney General
by email in the first instance. However, after a submission is received
by the Attorney General, a jurisdiction may supply additional
information on that submission by email to [email protected]. The
subject line of the email shall be identified with the Attorney
General's file number for the submission (YYYY-NNNN), marked as
``Additional Information,'' and include the name of the jurisdiction.
(f) Special marking. The first page of the submission, and the
envelope (if any), shall be clearly marked: ``Submission under Section
5 of the Voting Rights Act.''
(g) The most current information on addresses for, and methods of
making, section 5 submissions is available on the Voting Section
website at www.justice.gov/crt/voting/.
0
21. In Sec. 51.25, revise paragraph (a) to read as follows:
Sec. 51.25 Withdrawal of submissions.
(a) A jurisdiction may withdraw a submission at any time prior to a
final decision by the Attorney General. Notice of the withdrawal of a
submission must be made in writing addressed to the Chief, Voting
Section, Civil Rights Division, to be delivered at the addresses,
telefacsimile number, or email address specified in Sec. 51.24. The
submission shall be deemed withdrawn upon the Attorney General's
receipt of the notice.
* * * * *
0
22. In Sec. 51.27, revise paragraphs (a) through (d) to read as
follows:
Sec. 51.27 Required contents.
* * * * *
(a) A copy of any ordinance, enactment, order, or regulation
embodying the change affecting voting for which section 5 preclearance
is being requested.
(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 for which section 5 preclearance is being requested
and that explains the difference between the submitted change and the
prior law or practice. If the submitted change is a special referendum
election and the subject of the referendum is a proposed change
affecting voting, the submission should specify whether preclearance is
being requested solely for the special election or for both the special
election and the proposed change to be voted on in the referendum (see
Sec. Sec. 51.16, 51.22).
(d) The name, title, mailing address, and telephone number of the
person making the submission. Where available, a telefacsimile number
and an email address for the person making the submission also should
be provided.
* * * * *
0
23. In Sec. 51.28, revise paragraph (a)(5), add (a)(6), and revise
paragraph (c) to read as follows:
Sec. 51.28 Supplemental contents.
* * * * *
(a) * * *
(5) Demographic data on electronic media that are provided in
conjunction
[[Page 21246]]
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: 15 .....................................
GEOID10.
2........................... District Number............ 3 No leading zeroes.
----------------------------------------------------------------------------------------------------------------
(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.
* * * * *
(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 all prior annexations (and deannexations)
subject to the preclearance requirement have been submitted for review,
or a statement that identifies all annexations (and deannexations)
subject to the preclearance requirement that have not been submitted
for review. See Sec. 51.61(b).
(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.
* * * * *
0
24. In Sec. 51.29, revise paragraphs (b) and (d) to read as follows:
Sec. 51.29 Communications concerning voting changes.
* * * * *
(b) Comments should be sent to the Chief, Voting Section, Civil
Rights Division, at the addresses, telefacsimile number, or email
address specified in Sec. 51.24. The first page and the envelope (if
any) should be marked: ``Comment under section 5 of the Voting Rights
Act.'' Comments should include, where available, the name of the
jurisdiction and the Attorney General's file number (YYYY-NNNN) in the
subject line.
* * * * *
(d) To the extent permitted by the Freedom of Information Act, 5
U.S.C. 552, the Attorney General shall not disclose to any person
outside the Department of Justice the identity of any individual or
entity providing information on a submission or the administration of
section 5 where the individual or entity has requested confidentiality;
an assurance of confidentiality may reasonably be implied from the
circumstances of the communication; disclosure could reasonably be
expected to constitute an unwarranted invasion of personal privacy
under 5 U.S.C. 552; or disclosure is prohibited by any applicable
provisions of federal law.
* * * * *
0
25. Revise Sec. 51.35 to read as follows:
Sec. 51.35 Disposition of inappropriate submissions and
resubmissions.
(a) When the Attorney General determines that a response on the
merits of a submitted change is inappropriate, the Attorney General
shall notify the submitting official in writing within the 60-day
period that would have commenced for a determination on the merits and
shall include an explanation of the reason why a response is not
appropriate.
(b) Matters that are not appropriate for a merits response include:
(1) Changes that do not affect voting (see Sec. 51.13);
(2) Standards, practices, or procedures that have not been changed
(see Sec. Sec. 51.4, 51.14);
(3) Changes that previously have received preclearance;
(4) Changes that affect voting but are not subject to the
requirement of section 5 (see Sec. 51.18);
(5) Changes that have been superseded or for which a determination
is premature (see Sec. Sec. 51.22, 51.61(b));
(6) Submissions by jurisdictions not subject to the preclearance
requirement (see Sec. Sec. 51.4, 51.5);
(7) Submissions by an inappropriate or unauthorized party or
jurisdiction (see Sec. 51.23); and
(8) Deficient submissions (see Sec. 51.26(d)).
(c) Following such a notification by the Attorney General, a change
shall be deemed resubmitted for section 5 review upon the Attorney
General's receipt of a submission or other written information that
renders the change appropriate for review on the merits (such as a
notification from the submitting authority that a change previously
determined to be premature has been formally adopted). Notice of the
resubmission of a change affecting voting will be given to interested
parties registered under Sec. 51.32.
0
26. Revise Sec. 51.37 to read as follows:
Sec. 51.37 Obtaining information from the submitting authority.
(a) Oral requests for information. (1) If a submission does not
satisfy the requirements of Sec. 51.27, the Attorney General may
request orally any omitted information necessary for the evaluation of
the submission. An oral request may be made at any time within the 60-
day period, and the submitting authority should provide the requested
information as promptly as possible. The oral request for information
shall not suspend the running of the 60-day period, and the Attorney
General will proceed to make a determination within the initial 60-day
period. The Attorney General reserves the right as set forth in Sec.
51.39, however, to commence a new 60-day period in which to make the
requisite determination if the written information provided in response
to such request materially supplements the submission.
[[Page 21247]]
(2) An oral request for information shall not limit the authority
of the Attorney General to make a written request for information.
(3) The Attorney General will notify the submitting authority in
writing when the 60-day period for a submission is recalculated from
the Attorney General's receipt of written information provided in
response to an oral request as described in Sec. 51.37(a)(1), above.
(4) Notice of the Attorney General's receipt of written information
pursuant to an oral request will be given to interested parties
registered under Sec. 51.32.
(b) Written requests for information. (1) If the Attorney General
determines that a submission does not satisfy the requirements of Sec.
51.27, the Attorney General may request in writing from the submitting
authority any omitted information necessary for evaluation of the
submission. Branch v. Smith, 538 U.S. 254 (2003); Georgia v. United
States, 411 U.S. 526 (1973). This written request shall be made as
promptly as possible within the original 60-day period or the new 60-
day period described in Sec. 51.39(a). The written request shall
advise the jurisdiction that the submitted change remains unenforceable
unless and until preclearance is obtained.
(2) A copy of the request shall be sent to any party who has
commented on the submission or has requested notice of the Attorney
General's action thereon.
(3) The Attorney General shall notify the submitting authority that
a new 60-day period in which the Attorney General may interpose an
objection shall commence upon the Attorney General's receipt of a
response from the submitting authority that provides the information
requested or states that the information is unavailable. The Attorney
General can request further information in writing within the new 60-
day period, but such a further request shall not suspend the running of
the 60-day period, nor shall the Attorney General's receipt of such
further information begin a new 60-day period.
(4) Where the response from the submitting authority neither
provides the information requested nor states that such information is
unavailable, the response shall not commence a new 60-day period. It is
the practice of the Attorney General to notify the submitting authority
that its response is incomplete and to provide such notification as
soon as possible within the 60-day period that would have commenced had
the response been complete. Where the response includes a portion of
the available information that was requested, the Attorney General will
reevaluate the submission to ascertain whether a determination on the
merits may be made based upon the information provided. If a merits
determination is appropriate, it is the practice of the Attorney
General to make that determination within the new 60-day period that
would have commenced had the response been complete. See Sec. 51.40.
(5) If, after a request for further information is made pursuant to
this section, the information requested by the Attorney General becomes
available to the Attorney General from a source other than the
submitting authority, the Attorney General shall promptly notify the
submitting authority in writing, and the new 60-day period will
commence the day after the information is received by the Attorney
General.
(6) Notice of the written request for further information and the
receipt of a response by the Attorney General will be given to
interested parties registered under Sec. 51.32.
0
27. Revise Sec. 51.39 to read as follows:
Sec. 51.39 Supplemental information and related submissions.
(a)(1) Supplemental information. When a submitting authority, at
its own instance, provides information during the 60-day period that
the Attorney General determines materially supplements a pending
submission, the 60-day period for the pending submission will be
recalculated from the Attorney General's receipt of the supplemental
information.
(2) Related submissions. When the Attorney General receives related
submissions during the 60-day period for a submission that cannot be
independently considered, the 60-day period for the first submission
shall be recalculated from the Attorney General's receipt of the last
related submission.
(b) The Attorney General will notify the submitting authority in
writing when the 60-day period for a submission is recalculated due to
the Attorney General's receipt of supplemental information or a related
submission.
(c) Notice of the Attorney General's receipt of supplemental
information or a related submission will be given to interested parties
registered under Sec. 51.32.
0
28. Revise Sec. 51.40 to read as follows:
Sec. 51.40 Failure to complete submissions.
If after 60 days the submitting authority has not provided further
information in response to a request made pursuant to Sec. 51.37(b),
the Attorney General, absent extenuating circumstances and consistent
with the burden of proof under section 5 described in Sec. 51.52(a)
and (c), may object to the change, giving notice as specified in Sec.
51.44.
0
29. Revise Sec. 51.42 to read as follows:
Sec. 51.42 Failure of the Attorney General to respond.
It is the practice and intention of the Attorney General to respond
in writing to each submission within the 60-day period. However, the
failure of the Attorney General to make a written response within the
60-day period constitutes preclearance of the submitted change,
provided that a 60-day review period had commenced after receipt by the
Attorney General of a complete submission that is appropriate for a
response on the merits. (See Sec. 51.22, Sec. 51.27, Sec. 51.35.)
0
30. Revise Sec. 51.43 to read as follows:
Sec. 51.43 Reexamination of decision not to object.
(a) After notification to the submitting authority of a decision
not to interpose an objection to a submitted change affecting voting
has been given, the Attorney General may reexamine the submission if,
prior to the expiration of the 60-day period, information comes to the
attention of the Attorney General that would otherwise require
objection in accordance with section 5.
(b) In such circumstances, the Attorney General may by letter
withdraw his decision not to interpose an objection and may by letter
interpose an objection provisionally, in accordance with Sec. 51.44,
and advise the submitting authority that examination of the change in
light of the newly raised issues will continue and that a final
decision will be rendered as soon as possible.
0
31. In Sec. 51.44, revise paragraph (c) to read as follows:
Sec. 51.44 Notification of decision to object.
* * * * *
(c) The submitting authority shall be advised further that
notwithstanding the objection it may institute an action in the U.S.
District Court for the District of Columbia for a declaratory judgment
that the change objected to by the Attorney General neither has the
purpose nor will have the effect of denying or abridging the right to
vote on account of race, color, or membership in a language minority
group.
* * * * *
0
32. In Sec. 51.46, revise paragraph (a) to read as follows:
[[Page 21248]]
Sec. 51.46 Reconsideration of objection at the instance of the
Attorney General.
(a) Where there appears to have been a substantial change in
operative fact or relevant law, or where it appears there may have been
a misinterpretation of fact or mistake in the law, an objection may be
reconsidered, if it is deemed appropriate, at the instance of the
Attorney General.
* * * * *
0
33. In Sec. 51.48, revise paragraphs (a) through (d) to read as
follows:
Sec. 51.48 Decision after reconsideration.
(a) It is the practice of the Attorney General to notify the
submitting authority of the decision to continue or withdraw an
objection within a 60-day period following receipt of a reconsideration
request or following notice given under Sec. 51.46(b), except that
this 60-day period shall be recommenced upon receipt of any documents
or written information from the submitting authority that materially
supplements the reconsideration review, irrespective of whether the
submitting authority provides the documents or information at its own
instance or pursuant to a request (written or oral) by the Attorney
General. The 60-day reconsideration period may be extended to allow a
15-day decision period following a conference held pursuant to Sec.
51.47. The 60-day reconsideration period shall be computed in the
manner specified in Sec. 51.9. Where the reconsideration is at the
instance of the Attorney General, the first day of the period shall be
the day after the notice required by Sec. 51.46(b) is transmitted to
the submitting authority. The reasons for the reconsideration decision
shall be stated.
(b) The objection shall be withdrawn if the Attorney General is
satisfied that the change neither has the purpose nor will have the
effect of denying or abridging the right to vote on account of race,
color, or membership in a language minority group.
(c) If the objection is not withdrawn, the submitting authority
shall be advised that notwithstanding the objection it may institute an
action in the U.S. District Court for the District of Columbia for a
declaratory judgment that the change objected to by the Attorney
General neither has the purpose nor will have the effect of denying or
abridging the right to vote on account of race, color, or membership in
a language minority group.
(d) An objection remains in effect until either it is specifically
withdrawn by the Attorney General or a declaratory judgment with
respect to the change in question is entered by the U.S. District Court
for the District of Columbia.
* * * * *
0
34. Revise Sec. 51.50 to read as follows:
Sec. 51.50 Records concerning submissions.
(a) Section 5 files. The Attorney General shall maintain a section
5 file for each submission, containing the submission, related written
materials, correspondence, memoranda, investigative reports, data
provided on electronic media, notations concerning conferences with the
submitting authority or any interested individual or group, and copies
of letters from the Attorney General concerning the submission.
(b) Objection letters. The Attorney General shall maintain section
5 notification letters regarding decisions to interpose, continue, or
withdraw an objection.
(c) Computer file. Records of all submissions and their
dispositions by the Attorney General shall be electronically stored.
(d) Copies. The contents of the section 5 submission files in
paper, microfiche, electronic, or other form shall be available for
obtaining copies by the public, 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 Sec.
51.24 or by electronic mail to [email protected]. It is the
Attorney General's intent and practice to expedite, to the extent
possible, requests pertaining to pending submissions. 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. The identity of any individual or entity that
provided information to the Attorney General regarding the
administration of section 5 shall be available only as provided by
Sec. 51.29(d). 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.
0
35. Revise Sec. 51.52 to read as follows:
Sec. 51.52 Basic standard.
(a) Surrogate for the court. Section 5 provides for submission of a
voting change to the Attorney General as an alternative to the seeking
of a declaratory judgment from the U.S. District Court for the District
of Columbia. Therefore, the Attorney General shall make the same
determination that would be made by the court in an action for a
declaratory judgment under section 5: whether the submitted change
neither has the purpose nor will have the effect of denying or
abridging the right to vote on account of race, color, or membership in
a language minority group. The burden of proof is on a submitting
authority when it submits a change to the Attorney General for
preclearance, as it would be if the proposed change were the subject of
a declaratory judgment action in the U.S. District Court for the
District of Columbia. South Carolina v. Katzenbach, 383 U.S. 301, 328,
335 (1966).
(b) No objection. If the Attorney General determines that the
submitted change neither has the purpose nor will have the effect of
denying or abridging the right to vote on account of race, color, or
membership in a language minority group, no objection shall be
interposed to the change.
(c) Objection. An objection shall be interposed to a submitted
change if the Attorney General is unable to determine that the change
neither has the purpose nor will have the effect of denying or
abridging the right to vote on account of race, color, or membership in
a language minority group. This includes those situations where the
evidence as to the purpose or effect of the change is conflicting and
the Attorney General is unable to determine that the change is free of
both the prohibited discriminatory purpose and effect.
0
36. Revise Sec. 51.54 to read as follows:
Sec. 51.54 Discriminatory purpose and effect.
(a) Discriminatory purpose. A change affecting voting is considered
to have a discriminatory purpose under section 5 if it is enacted or
sought to be administered with any purpose of denying or abridging the
right to vote on account of race, color, or membership in a language
minority group. The term ``purpose'' in section 5 includes any
discriminatory purpose. 42 U.S.C. 1973c. The Attorney General's
evaluation of discriminatory purpose under section 5 is guided by the
analysis in Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977).
(b) Discriminatory effect. A change affecting voting is considered
to have a discriminatory effect under section 5 if it will lead to a
retrogression in the position of members of a racial or language
minority group (i.e., will make members of such a group worse off than
[[Page 21249]]
they had been before the change) with respect to their effective
exercise of the electoral franchise. Beer v. United States, 425 U.S.
130, 140-42 (1976).
(c) Benchmark. (1) In determining whether a submitted change is
retrogressive the Attorney General will normally compare the submitted
change to the voting standard, practice, or procedure in force or
effect at the time of the submission. If the existing standard,
practice, or procedure upon submission was not in effect on the
jurisdiction's applicable date for coverage (specified in the Appendix)
and is not otherwise legally enforceable under section 5, it cannot
serve as a benchmark, and, except as provided in paragraph (c)(4) of
this section, the comparison shall be with the last legally enforceable
standard, practice, or procedure used by the jurisdiction.
(2) The Attorney General will make the comparison based on the
conditions existing at the time of the submission.
(3) The implementation and use of an unprecleared voting change
subject to section 5 review does not operate to make that unprecleared
change a benchmark for any subsequent change submitted by the
jurisdiction.
(4) Where at the time of submission of a change for section 5
review there exists no other lawful standard, practice, or procedure
for use as a benchmark (e.g., where a newly incorporated college
district selects a method of election) the Attorney General's
determination will necessarily center on whether the submitted change
was designed or adopted for the purpose of discriminating against
members of racial or language minority groups.
(d) Protection of the ability to elect. Any change affecting voting
that has the purpose of or will have the effect of diminishing the
ability of any citizens of the United States on account of race, color,
or membership in a language minority group to elect their preferred
candidates of choice denies or abridges the right to vote within the
meaning of section 5. 42 U.S.C. 1973c.
0
37. In Sec. 51.55, revise paragraph (a) to read as follows:
Sec. 51.55 Consistency with constitutional and statutory
requirements.
(a) Consideration in general. In making a determination under
section 5, the Attorney General will consider whether the change
neither has the purpose nor will have the effect of denying or
abridging the right to vote on account of race, color, or membership in
a language minority group in light of, and with particular attention
being given to, the requirements of the 14th, 15th, and 24th Amendments
to the Constitution, 42 U.S.C. 1971(a) and (b), sections 2, 4(a),
4(f)(2), 4(f)(4), 201, 203(c), and 208 of the Act, and other
constitutional and statutory provisions designed to safeguard the right
to vote from denial or abridgment on account of race, color, or
membership in a language minority group.
* * * * *
0
38. Revise Sec. 51.57 to read as follows:
Sec. 51.57 Relevant factors.
Among the factors the Attorney General will consider in making
determinations with respect to the submitted changes affecting voting
are the following:
(a) The extent to which a reasonable and legitimate justification
for the change exists;
(b) The extent to which the jurisdiction followed objective
guidelines and fair and conventional procedures in adopting the change;
(c) The extent to which the jurisdiction afforded members of racial
and language minority groups an opportunity to participate in the
decision to make the change;
(d) The extent to which the jurisdiction took the concerns of
members of racial and language minority groups into account in making
the change; and
(e) The factors set forth in Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252 (1977):
(1) Whether the impact of the official action bears more heavily on
one race than another;
(2) The historical background of the decision;
(3) The specific sequence of events leading up to the decision;
(4) Whether there are departures from the normal procedural
sequence;
(5) Whether there are substantive departures from the normal
factors considered; and
(6) The legislative or administrative history, including
contemporaneous statements made by the decision makers.
0
39. In Sec. 51.58, revise paragraph (b) to read as follows:
Sec. 51.58 Representation.
* * * * *
(b) Background factors. In making determinations with respect to
these changes involving voting practices and procedures, the Attorney
General will consider as important background information the following
factors:
(1) The extent to which minorities have been denied an equal
opportunity to participate meaningfully in the political process in the
jurisdiction.
(2) The extent to which voting in the jurisdiction is racially
polarized and election-related activities are racially segregated.
(3) The extent to which the voter registration and election
participation of minority voters have been adversely affected by
present or past discrimination.
0
40. Revise Sec. 51.59 to read as follows:
Sec. 51.59 Redistricting plans.
(a) Relevant factors. In determining whether a submitted
redistricting plan has a prohibited purpose or effect the Attorney
General, in addition to the factors described above, will consider the
following factors (among others):
(1) The extent to which malapportioned districts deny or abridge
the right to vote of minority citizens;
(2) The extent to which minority voting strength is reduced by the
proposed redistricting;
(3) The extent to which minority concentrations are fragmented
among different districts;
(4) The extent to which minorities are over concentrated in one or
more districts;
(5) The extent to which available alternative plans satisfying the
jurisdiction's legitimate governmental interests were considered;
(6) The extent to which the plan departs from objective
redistricting criteria set by the submitting jurisdiction, ignores
other relevant factors such as compactness and contiguity, or displays
a configuration that inexplicably disregards available natural or
artificial boundaries; and
(7) The extent to which the plan is inconsistent with the
jurisdiction's stated redistricting standards.
(b) Discriminatory purpose. A jurisdiction's failure to adopt the
maximum possible number of majority-minority districts may not be the
sole basis for determining that a jurisdiction was motivated by a
discriminatory purpose.
0
41. In Sec. 51.61, revise paragraphs (a) and (b) to read as follows:
Sec. 51.61 Annexations and deannexations.
(a) Coverage. Annexations and deannexations, even of uninhabited
land, are subject to section 5 preclearance to the extent that they
alter or are calculated to alter the composition of a jurisdiction's
electorate. See, e.g., City of Pleasant Grove v. United States, 479
U.S. 462 (1987). In analyzing annexations and deannexations under
section 5, the Attorney General considers the purpose and effect of the
annexations and
[[Page 21250]]
deannexations only as they pertain to voting.
(b) Section 5 review. It is the practice of the Attorney General to
review all of a jurisdiction's unprecleared annexations and
deannexations together. See City of Pleasant Grove v. United States,
C.A. No. 80-2589 (D.D.C. Oct. 7, 1981).
* * * * *
0
42. Revise the Appendix to Part 51 to read as follows:
Appendix to Part 51--Jurisdictions Covered Under Section 4(b) of the
Voting Rights Act, as Amended
The requirements of section 5 of the Voting Rights Act, as
amended, apply in the following jurisdictions. The applicable date
is the date that was used to determine coverage and the date after
which changes affecting voting are subject to the preclearance
requirement. Some jurisdictions, for example, Yuba County,
California, are included more than once because they have been
determined on more than one occasion to be covered under section
4(b).
----------------------------------------------------------------------------------------------------------------
Federal Register citation
Jurisdiction Applicable date ------------------------------------------------------
Volume and page Date
----------------------------------------------------------------------------------------------------------------
Alabama........................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Alaska............................ Nov. 1, 1972......... 40 FR 49422.......... Oct. 22, 1975.
Arizona........................... Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
California:
Kings County.................. Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
Merced County................. Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
Monterey County............... Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Yuba County................... Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Yuba County................... Nov. 1, 1972......... 41 FR 784............ Jan. 5, 1976.
Florida:
Collier County................ Nov. 1, 1972......... 41 FR 34329.......... Aug. 13, 1976.
Hardee County................. Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
Hendry County................. Nov. 1, 1972......... 41 FR 34329.......... Aug. 13, 1976.
Hillsborough County........... Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
Monroe County................. Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
Georgia........................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Louisiana......................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Michigan:
Allegan County:
Clyde Township............ Nov. 1, 1972......... 41 FR 34329.......... Aug. 13, 1976.
Saginaw County:
Buena Vista Township...... Nov. 1, 1972......... 41 FR 34329.......... Aug. 13, 1976.
Mississippi....................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
New Hampshire:
Cheshire County:
Rindge Town............... Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
Coos County:
Millsfield Township....... Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
Pinkhams Grant............ Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974
Stewartstown Town......... Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
Stratford Town............ Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
Grafton County:
Benton Town............... Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
Hillsborough County:
Antrim Town............... Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
Merrimack County:
Boscawen Town............. Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
Rockingham County:
Newington Town............ Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
Sullivan County:
Unity Town................ Nov. 1, 1968......... 39 FR 16912.......... May 10, 1974.
New York:
Bronx County.................. Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Bronx County.................. Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
Kings County.................. Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Kings County.................. Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
New York County............... Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
North Carolina:
Anson County.................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Beaufort County............... Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Bertie County................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Bladen County................. Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Camden County................. Nov. 1, 1964......... 31 FR 3317........... Mar. 2, 1966.
Caswell County................ Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Chowan County................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Cleveland County.............. Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Craven County................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Cumberland County............. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Edgecombe County.............. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Franklin County............... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
[[Page 21251]]
Gaston County................. Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Gates County.................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Granville County.............. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Greene County................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Guilford County............... Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Halifax County................ Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Harnett County................ Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Hertford County............... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Hoke County................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Jackson County................ Nov. 1, 1972......... 40 FR 49422.......... Oct. 22, 1975.
Lee County.................... Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Lenoir County................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Martin County................. Nov. 1, 1964......... 31 FR 19............. Jan. 4, 1966.
Nash County................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Northampton County............ Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Onslow County................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Pasquotank County............. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Perquimans County............. Nov. 1, 1964......... 31 FR 3317........... Mar. 2, 1966.
Person County................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Pitt County................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Robeson County................ Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Rockingham County............. Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Scotland County............... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Union County.................. Nov. 1, 1964......... 31 FR 5081........... Mar. 29, 1966.
Vance County.................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Washington County............. Nov. 1, 1964......... 31 FR 19............. Jan. 4, 1966.
Wayne County.................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
Wilson County................. Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
South Carolina.................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
South Dakota:
Shannon County................ Nov. 1, 1972......... 41 FR 784............ Jan. 5, 1976.
Todd County................... Nov. 1, 1972......... 41 FR 784............ Jan. 5, 1976.
Texas............................. Nov. 1, 1972......... 40 FR 43746.......... Sept. 23, 1975.
Virginia.......................... Nov. 1, 1964......... 30 FR 9897........... Aug. 7, 1965.
----------------------------------------------------------------------------------------------------------------
The following political subdivisions in States subject to
statewide coverage are also covered individually:
----------------------------------------------------------------------------------------------------------------
Federal Register citation
Jurisdiction Applicable date ------------------------------------------------------
Volume and page Date
----------------------------------------------------------------------------------------------------------------
Arizona:
Apache County................. Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Apache County................. Nov. 1, 1972......... 40 FR 49422.......... Oct. 22, 1975.
Cochise County................ Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971
Coconino County............... Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Coconino County............... Nov. 1, 1972......... 40 FR 49422.......... Oct. 22, 1975.
Mohave County................. Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Navajo County................. Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Navajo County................. Nov. 1, 1972......... 40 FR 49422.......... Oct. 22, 1975.
Pima County................... Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Pinal County.................. Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Pinal County.................. Nov. 1, 1972......... 40 FR 49422.......... Oct. 22, 1975.
Santa Cruz County............. Nov. 1, 1968......... 36 FR 5809........... Mar. 27, 1971.
Yuma County................... Nov. 1, 1964........ 31 FR 982............ Jan. 25, 1966.
----------------------------------------------------------------------------------------------------------------
[[Page 21252]]
The Voting Section maintains a current list of those
jurisdictions that have maintained successful declaratory judgments
from the United States District Court for the District of Columbia
pursuant to section 4 of the Act on its Web site at http://www.justice.gov/crt/voting.
Dated: April 8, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-9083 Filed 4-14-11; 8:45 am]
BILLING CODE 4410-13-P