||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||August 12, 2002|
Wallace Shaw, Esquire
P.O. Box 3073
Freeport, Texas 77542-1273
Dear Mr. Shaw:
This refers to the procedures for conducting the May 4,
2002, special city charter amendment election and the change in
the method of electing city council members from districts to at
large for the City of Freeport in Brazoria County, Texas,
submitted to the Attorney General pursuant to Section 5 of the
Voting Rights Act, 42 U.S.C. 1973c. We received your responses
to our May 14, 2002, request for additional information through
July 31, 2002.
With regard to the special election, the Attorney General
does not interpose any objection to the specified change.
However, we note that Section 5 expressly provides that the
failure of the Attorney General to object does not bar subsequent
litigation to enjoin the enforcement of the change. See the
Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
As to the change to at-large elections with numbered
positions, 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 submission of the adoption of the current
districting system for the election of council members. Based on
our analysis of the information you have provided, on behalf of
the Attorney General, I am compelled to object to the submitted
change in the method of election.
According to the 2000 Census, the city has a total
population of 12,708, of whom 6,614 (52.0 percent) are Hispanic
and 1,696 (13.3 percent) are black persons. Hispanic residents
comprise 47.3 percent, and black residents 12.3 percent, of the
city's voting age population. Approximately 29 percent of the
city's registered voters are Spanish-surnamed individuals.
Until 1992, the city elected its four-member council on an
at-large basis. In that year it began to use the single-member
district system, which it had adopted as part of a settlement of
voting rights litigation challenging the at-large system. Under
the subsequent single-member district method of election,
minority voters have demonstrated the ability to elect candidates
of choice in at least two districts, Wards A and D. The city now
proposes to reinstitute the at-large method of election. Our
analysis shows that the change will have a retrogressive effect
on the ability of minority voters to elect a candidate of their
Elections in the city are marked by a pattern of racially
polarized voting. Under the city's previous use of at-large
elections, no Hispanic-preferred candidates were successful until
1990. In that election, one such candidate narrowly won office
when several Anglo-supported candidates split the vote. In
contrast, a Hispanic-preferred candidate won over significant
Anglo opposition in 1992 in the first election held under the
single-member district system. Since then, three other
minority-preferred candidates have been successful in their wards.
However, minority voters remain unable to elect their candidates
of choice in municipal at-large elections. Thus, a return to an
electoral system where all council offices are elected on an at-large
basis will result in a retrogression in their ability to
exercise the electoral franchise that they enjoy currently. A
voting change has a discriminatory effect 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 they had been before the change) with respect to their
opportunity to exercise the electoral franchise effectively.
Reno v. Bossier Parish School Board, 528 U.S. 320, 328 (2000);
Beer v. United States, 425 U.S. 130, 140-42 (1976).
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
that your burden has been sustained in this instance. Therefore,
on behalf of the Attorney General, I must object to the change in
the method of election.
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. 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 submitted change continues 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 the City of
Freeport plans to take concerning this matter. If you have any
questions, you should call Mr. Robert Lowell (202-514-3539), an
attorney in the Voting Section.
J. Michael Wiggins
Acting Assistant Attorney General