||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||March 17, 2000|
Melvin P. Kopecky, Esq.
Kopecky & Roberts
P.O. Box 128
Washington, Georgia 30673
Dear Mr. Kopecky:
This refers to Act No. 224 (1999), which amends the city
charter to change the method of election for the city council to
numbered posts with staggered terms (2-3) and a majority vote
requirement, and provides an implementation schedule for the City
of Tignall in Wilkes County, Georgia, submitted to the Attorney
General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C.
1973c. We received your most recent responses to our October 4,
1999, request for additional information on January 21 and March
We have carefully considered the information you have
provided, as well as Census data, and information and comments
from other interested persons. According to the 1990 Census, the
City of Tignall's population is 43 percent black. The city's
five-member council is elected at large by plurality vote to
four-year concurrent terms. Prior to 1999, only one member of
the city council was black. The black councilmember ran for
office in 1991 and 1995, and placed fifth in a field of eight
candidates in 1991 and third in a field of six candidates in
1995, just one vote ahead of the fourth and fifth place
candidates. Based on our analysis of the available information,
it appears that voting in Tignall is racially polarized and that
minority voters under the existing system have achieved some
success by limiting the number of votes that they cast for city
council seats in order to elect their candidate of choice. This
technique is referred to as single-shot voting. Under the proposed
system, each seat on the council that is up for election
will be identified as a separate post and candidates will compete
against one another for that specific post. This will eliminate
the opportunity minority voters have had under the existing
system to boost the effectiveness of their vote for their
preferred candidate through single-shot voting.
The imposition of numbered posts and a majority vote
requirement, in addition, are more likely to result in head-to-head contests between minority and white candidates for the city
council. Minority candidates who are forced into head-to-head
contests with white candidates in this racially polarized voting
environment are more likely to lose than would be the case under
the existing system with concurrent terms and a plurality vote
We have also examined the implications for minority voters
of staggering the terms of councilmembers, so that only two
members are elected in one election cycle and three members are
elected the next. In this context, it appears that staggering
council terms will reduce the opportunity of minority voters to
elect their candidate of choice through single-shot voting by
reducing the number of positions to be voted upon and, thereby,
limiting the effectiveness of this vote-withholding technique.
The 1991 and 1995 election results appear to support this
conclusion because the minority-preferred candidate won, but
placed fifth and third, respectively, in contests in which only a
few votes separated the winning and losing candidates.
It appears, therefore, that the city's proposed addition to
its at-large election system of numbered posts, a majority vote
requirement and staggered terms will lead to a worsening of
minority electoral opportunity, which is prohibited by Section 5.
See Beer v. United States, 425 U.S. 130, 141 (1976)("the purpose
of [Section] 5 has always been to insure that no voting-procedure
changes would be made that would lead to a retrogression in the
position of racial minorities with respect to their effective
exercise of the electoral franchise"); 28 C.F.R. 51.54.
We are aware that the city implemented these proposed
changes without preclearance in the November 1999 municipal
election, and that fewer than five candidates qualified for the
five council positions. We are also aware that two of the
candidates who did qualify were black. However, the November
1999 election does not appear typical of city council elections
in Tignall. First, the election occurred after we requested
additional information about the proposed changes in October 1999.
There may well have been concern among some candidates
about the legality of the election scheme since the city chose to
implement the changes in election method without the requisite
preclearance under Section 5. Second, the fact that candidates
for at least three seats on the council were required under the
unprecleared staggered term implementation schedule to select
two-year terms may also have resulted in fewer candidates
qualifying for city council than the number of seats that were up
The city maintains that the proposed changes were necessary
to preclude the possibility of a complete turnover of the city
council in a single election year. Yet, the city presented no
convincing evidence that this feared occurrence had ever happened
or was likely to happen in the future. Moreover, the addition of
numbered posts and a majority vote requirement do not address the
proffered concern of council turnover, and therefore appear to be
wholly without support.
Under Section 5 of the Voting Rights Act the submitting
authority has the burden of showing that a submitted change has
neither a discriminatory purpose nor a discriminatory effect.
Georgia v. United States, 411 U.S. 526 (1973); see also the
Procedures for the Administration of Section 5 (28 C.F.R. 51.52).
In light of the considerations discussed above, I cannot
conclude, as I must under the Voting Rights Act, that your burden
has been sustained in this instance. Therefore, on behalf of the
Attorney General, I must object to the proposed addition of
numbered posts, staggered terms and a majority vote requirement
to the method of electing councilmembers for the City of Tignall.
We note that under Section 5 you have the right to seek a
declaratory judgment from the United States District Court for
the District of Columbia that the proposed changes neither have
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. See 28 C.F.R. 51.44. In addition you
may request that the Attorney General reconsider the objection.
See 28 C.F.R. 51.45. However, until the objection is withdrawn
or a judgment from the District of Columbia Court is obtained the
change to numbered posts, staggered terms and a majority vote
requirement continue to be legally unenforceable. See 28 C.F.R.
Because the staggered term implementation schedule is
directly related to the objected-to change to staggered terms, no
determination by the Attorney General is required or appropriate
at this time with respect to the implementation schedule. See 28
C.F.R. 51.22 (b) and 51.35.
To enable us to meet our responsibility to enforce the
Voting Rights Act, please inform us of the action the City of
Tignall, plans to take concerning this matter. If you have any
questions, you should call Judybeth Greene (202) 616-2350, an
attorney in the Voting Section.
Bill Lann Lee
Acting Assistant Attorney General
Civil Rights Division