||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
August 21, 2008
The Honorable Phil Wilson
Secretary of State
P.O. Box 12060
Austin, Texas 78711-2060
Dear Mr. Wilson:
This refers to Chapter 912 (H.B. 2984) (2007),
which changes the candidate qualification requirements for the position of
supervisor of a fresh water supply district (except for those districts
located in Denton County), for the State of Texas submitted to the Attorney General
pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received
your response to our May 2, 2008, follow-up request for additional
information on June 26, 2008.
We have considered carefully the limited information
you have provided, as well as census data, comments and information from other
interested parties, and other information, including the state's prior
submissions. Under Section 5 of the Voting Rights Act, the Attorney General
must determine whether the submitting authority has met its burden of showing
that the proposed changes do not have the purpose and will not have the effect
of denying or abridging the right to vote on account of race, color, or
membership in a language minority. 42 U.S.C. 1973c; Georgia
v. Ashcroft, 123 U.S. 2498 (2003); Procedures for the Administration
of Section 5 of the Voting Rights Act, 28 C.F.R. 51.52 (c). As discussed
further below, I cannot conclude that the state's burden of proving that
Chapter 912 (H.B. 2984) (2007) will not have a retrogressive effect under
Section 5 has been sustained in this instance. Therefore, on behalf of the
Attorney General, I must object to Chapter 912.
Your initial submission of September 28, 2007,
did not contain the information required to enable us to determine that the
proposed change does not have the purpose and will not 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. 51.52 through 51.57.
As a result, we made a timely written request for additional information
with regard to this submission on November 26, 2007. See 28 C.F.R. 51.37.
Your responses to our request for
additional information, received on January 29 and 31, and March 20, 2008,
failed to provide the necessary information that was requested, including
the name and location of each fresh water supply district affected by the
change, and total population for each broken down by race, color, or
language minority group percentages, or the name, race, color or minority
language group, and telephone number of each incumbent supervisor, and
whether such supervisor is or is not an owner of taxable property in the
district. Furthermore, the state declined to take a position on concerns
that precluding non-landowning registered voters of a fresh water supply
district from qualifying as a candidate for supervisor may have a
discriminatory purpose or effect.
We sent a follow-up letter requesting
additional information on May 2, 2008. In your June 26, 2008, response
to our letter, you respectfully reported that you could not provide any
additional information. You also requested that we make no determination
if the information provided is insufficient to warrant preclearance.
The Attorney General does not have the
option of issuing a no determination on this particular submission. See
28 C.F.R. 51.35. The Department is also aware of at least four newly
created districts that are operating under the proposed candidate
qualifications of Chapter 912.
The submitted data confirms that there
are Hispanic supervisors who are known to be non-landowning residents
of their district. If the proposed candidate qualifications were
implemented, these individuals would be unable to run for reelection.
Concerns that the proposed change may have a future retrogressive
effect also are raised by statistics that reveal a significant disparity
in home and agricultural land ownership rates between Caucasians and
minorities in Texas. Without additional data, the Attorney General is
unable to assess whether the law would have a discriminatory effect.
Under Section 5 of the Fannie Lou Hamer,
Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and
Amendments Act of 2006, Public Law 109-246, 120 Stat. 577 (2006) ("Voting
Rights Act"), the submitting authority has the burden of showing that a
submitted change has neither a discriminatory purpose nor a discriminatory
effect. In failing to provide the information necessary to complete our
review of your submission, you have failed to sustain your burden of proof.
See Georgia v. United States, 411 U.S. 526 (1971); see
also 28 C.F.R. 51.40 and 51.52.
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 Court for the
District of Columbia is obtained, Chapter 912 (H.B. 2984) (2007) will
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 the State
of Texas plans to take concerning this matter. If you have any questions,
you should call Robert Lowell (202-514-3539), an attorney in the Voting Section.
Grace Chung Becker
Acting Assistant Attorney General