Everett T. Sanders, Esq.
City of Natchez
P.O. Box 565
Natchez, Mississippi 39121
Dear Mr. Sanders:
This refers to the 2011 redistricting plan for the City of Natchez in Adams
County, Mississippi, submitted to the Attorney General pursuant to Section 5
of the Voting Rights Act of 1965, 42 U.S.C. 1973c. We received your
response to our February 21, 2012, request for additional information on February 28, 2012.
We have carefully considered the information you have provided, as well as
census data, comments and information from other interested parties, and
other information, including the city’s previous submissions. Under Section 5,
the Attorney General must determine whether the submitting authority has met
its burden of showing the proposed change has neither the purpose nor will
have the effect of denying or abridging the right to vote on account of race
or color or membership in a language minority group. Georgia v. United States,
411 U.S. 526 (1973); Procedures for the Administration of Section 5 of the Voting Rights
Act of 1965, 28 C.F.R. 51.52(c). For the reasons discussed below, I cannot
conclude that the city’s burden under Section 5 has been sustained in this instance.
Therefore, on behalf of the Attorney General, I must object to the city’s proposed
2011 redistricting plan.
According to the 2010 Census, the city’s total population is 15,792, of whom 9,237
(58.5%) are black; its voting age population is 12,054, of whom 6,522 (54.1%) are
black. The city is governed by a mayor, elected at-large, who votes only in
the case of a tie, and a six-member board of aldermen, who are elected from
single-member wards by majority vote to serve four-year concurrent terms.
Under the benchmark plan, black voters have demonstrated the ability to elect
candidates of choice in Wards 1, 2, and 4, with black voting age population
percentages of 68.9, 97.5, and 69.1, respectively. In Ward 5, black persons
constitute 57.6 percent of the total population and 52.6 percent of its voting
age population, but have not elected a candidate of choice in aldermanic elections.
The proposed plan retains Wards 1, 2, and 4 as ability-to-elect wards. The black
voting age population percentage in each of these three wards increases as
compared to the benchmark. Meanwhile, the black total and voting age
populations in Ward 5 are reduced by 5.3 and 6.6 percentage points,
respectively, resulting in Ward 5 losing the black majority in its voting age
population and decreasing its black total population to 52.3 percent.
With respect to the city’s ability to demonstrate that this change was adopted
without a prohibited purpose, the starting point of our analysis is the
framework established in Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977). There, the Supreme Court
provided a non-exhaustive list of factors that bear on the determination of
discriminatory purpose, including the impact of the action on minority groups;
the historical background of the action; the sequence of events leading up
to the action or decision; the legislative or administrative history regarding
the action; departures from normal procedures; and evidence that the
decision-maker ignored factors it has otherwise considered important or
controlling in similar decisions. Id.at 266-68.
We start with the city’s redistricting history, which shows a pattern of
the city modifying ward lines to limit black voting strength. On
February 21, 1984, the Attorney General interposed an objection under
Section 5 to the city’s proposed post-1980 redistricting plan because
it made numerous unnecessary population shifts that artificially limited
black voting strength in the city. That plan maintained black percentages
at levels identical to the benchmark in Wards 1 and 4, even though adherence
to non-racial redistricting criteria would have resulted in an increase
in black voting strength in each.
Over the past several decades, the black population in both the city
as a whole, as well as the area encompassing Ward 5, has been increasing.
Indeed, each time the decennial Census data has been released since 1990,
black persons in Ward 5 have comprised a significant majority of the
total population in the benchmark district. And in each redistricting
cycle since then, the city has taken steps to reduce the black population
share in Ward 5. The city’s 1992 redistricting plan reduced the black
population percentage in Ward 5 from 54.9 percent in the benchmark to
49.3 percent in the proposed plan. The city’s 2002 redistricting plan also
reduced the black population in Ward 5 from 56.3 percent in the benchmark to
48.3 percent in the proposed plan. And this submission, the city’s 2011
redistricting plan, follows that same pattern and reduces the black total population
in Ward 5 from 57.6 percent to 52.3 percent, with a resulting reduction in
black voting age population from 52.6 percent to 46.0 percent. Most
significantly for the instant analysis, benchmark Ward 5 was within
constitutional population limits after the 2010 Census and did not need to be changed
at all. Because it appears that the city has intentionally and unnecessarily
reduced the black voting age population in Ward 5 under circumstances that
suggest the black population in Ward 5 would otherwise have been on the verge
of exercising an ability to elect their candidates of choice, we cannot
conclude that the city has met its burden of demonstrating the absence of any
The city’s rationale for the change before us does not withstand scrutiny.
According to the city’s demographer, black population had to be moved
from Ward 5 in order to maintain the black population percentages in
Wards 1, 2, and 4 so as to avoid retrogression. That claim is a
misapplication of the retrogression standard, which does not operate
as a categorical prohibition on any reduction in the black population
percentage in an ability-to-elect ward. Rather, as both the text of
Section 5 and the Attorney General’s procedures for its administration
make clear, the retrogression standard in this context prohibits those changes
that have the effect of diminishing, on account of race, the ability of any
citizens to elect their preferred candidates of choice. 42 U.S.C. 1973c(b); 28
C.F.R. 51.52. It is not plausible to contend that adding black population to the
three existing ability-to-elect wards in the benchmark plan – especially Ward 2,
with a 97.5 percent black voting age population – was necessary to avoid
retrogression in those wards; our analysis has determined that each could experience
a decrease in the black share of the voting age population while still maintaining
their ability-to-elect status. Indeed, in past city elections, black voters have
demonstrated an ability to elect candidates of their choice in wards with a
black voting age population of 67 percent.
As we have indicated in our Guidance Concerning Redistricting Under
Section 5 of the Voting Act, 76 Fed. Reg. 7470, 7472 (Feb. 9, 2011),
we may devise an illustrative plan as part of our analysis. We have
done so in this instance. The illustrative plan we have developed
maintains Wards 1, 2, and 4 at similar or higher black population percentage
levels than existed in the benchmark, maintains Ward 5 at its benchmark
level, and achieves a smaller overall population deviation range than the
adopted plan. This illustrative plan demonstrates that the city’s explanation
– that reductions in the black population share in Ward 5 were necessary to
maintain the black population share in the three ability-to-elect districts –
is pretextual. The city’s demographer was in fact presented with an
alternative plan by the Natchez Chapter of the NAACP that not only maintained
the black population shares in Wards 1, 2, and 4, but also increased the black
population share in Ward 5 to ability-to-elect levels, so the city was aware
that such a result was feasible.
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 will have a discriminatory effect. Georgia v. United
States, 411 U.S. 526 (1973); 28 C.F.R. 51.52. In light of the
considerations discussed above, I cannot conclude that the city’s burden
has been sustained in this instance.
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 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. 28 C.F.R. 51.44.
In addition, you may request that the Attorney General reconsider the objection.
28 C.F.R. 51.45. However, until the objection is withdrawn or a judgment
from the United States District Court for the District of Columbia is obtained,
the submitted changes continue to be legally unenforceable. Clark v.
Roemer, 500 U.S. 646 (1991); 28 C.F.R. 51.10. To enable us to meet
our responsibility to enforce the Voting Rights Act, please inform us of
the action that the City of Natchez plans to take concerning this matter. If
you have any questions, you should contact Robert S. Berman (202/514-8690), a
deputy chief in the Voting Section.
/ s /
Thomas E. Perez
Assistant Attorney General