Friday, July 07, 2006

voting rights act part II: section 5

When Congress amended and strengthened the Voting Rights Act in 1982, it extended for 25 more years--until 2007--the preclearance requirement of Section 5, the authority to use federal examiners and observers, and some of the statute's language minority requirements. So, for those sections to extend past 2007, Congress will have to take action. But even if these special provisions are not renewed, the rest of the Voting Rights Act will continue to prohibit discrimination in voting....Section 5 is a special provision of the statute (42 U.S.C. 1973c) that requires state and local governments in certain parts of the country to get federal approval (known as"preclearance") before implementing any changes they want to make in their voting procedures: anything from moving a polling place to changing district lines in the county..... Under Section 5, a covered state, county or local government entity must demonstrate to federal authorities that the voting change in question (1) does not have a racially discriminatory purpose; and (2) will not make minority voters worse off than they were prior to the change (i.e. the change will not be "retrogressive").

Section 5 applies to all or parts of the following states:
New Hampshire
New York
North Carolina
South Carolina
South Dakota
Virginia (note: why isnt everyone on this list?)
The detailed list of "covered jurisdictions" is printed in the Code of Federal Regulations at the end of 28 C.F.R. Part 51. These are the Justice Department's Section 5 guidelines, which explain how the Section 5 review process works and help jurisdictions with terminology, deadlines and many other matters.
What is the Justice Department's role under Section 5?
Under Section 5, covered jurisdictions cannot enforce voting changes unless and until they obtain approval ("preclearance") either from the federal district court in Washington, D.C. or from the Attorney General. If the jurisdiction chooses to obtain preclearance from the Attorney General, s/he has 60 days after receiving all the necessary information to decide whether a governmental entity has shown that a proposed voting change is not discriminatory in purpose or effect.
The Justice Department investigates submissions carefully by studying documents, interviewing people in the affected community, and getting to know the facts. If the Attorney General decides that a proposed change was designed to discriminate against minority voters, or that, regardless of intent, it makes minority voters worse off than before, s/he will "object" to the change in a letter to the jurisdiction. If that happens, the change is legally unenforceable and cannot be put into effect, just as if the federal court had issued a ruling against the proposed change. If the jurisdiction disagrees with the Attorney General's objection, it can still take the matter to the federal court in Washington, D.C., where it will have to prove that its proposed change is not discriminatory either in purpose or in effect. If the Attorney General does not object, the change can be implemented. However, the Justice Department or a private party can still go to court under Section 2 of the Voting Rights Act and challenge the change as a racially discriminatory voting procedure.

The Voting Rights Act is not limited to discrimination that literally excludes minority voters from the polls. Section 2 of the Act (42 U.S.C. 1973) makes it illegal for any state or local government to use election processes that are not equally open to minority voters, or that give minority voters less opportunity than other voters to participate in the political process and elect representatives of their choice to public office. In particular, Section 2 makes it illegal for state and local governments to "dilute" the votes of racial minority groups, that is, to have an election system that makes minority voters' votes less effective than those of other voters. One of many forms of minority vote dilution is the drawing of district lines that divide minority communities and keep them from putting enough votes together to elect representatives of their choice to public office. Depending on the circumstances, dilution can also result from at-large voting for governmental bodies. When coupled with a long-standing pattern of racial discrimination in the community, these and other election schemes can deny minority voters a fair chance to elect their preferred candidates.

To show vote dilution in these situations, there must be a geographically concentrated minority population and voting that is polarized by race, that is, a pattern in which minority voters and white voters tend to vote differently as groups. It must also be shown that white voters, by voting as a bloc against minority-choice candidates, usually beat those candidates even if minority voters are unified or cohesive at the polls.

Anyone aggrieved by minority vote dilution can bring a federal lawsuit to stop it. If the court decides that the effect of an election system, in combination with all the local circumstances, is to make minority votes less effective than white votes, it can order a change in the election system. For example, courts have ordered states and localities to adopt districting plans to replace at-large voting, or to redraw their election district lines in a way that gives minority voters the same opportunity as other voters to elect representatives of their choice.


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