||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||September 24, 2001|
Cheryl T. Mehl, Esq.
Schwartz & Eichelbaum
800 Brazos Street
Austin, Texas 78701
This refers to the change in the method of election from
single-member districts to an at-large system employing
cumulative voting, its implementation schedule, and the
subsequent revision of the implementation schedule as
subsequently revised for the Haskell Consolidated Independent
School District in Haskell, Knox, and Throckmorton Counties,
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 February 5, 2001, request for additional
information on July 25, and September 5, 6, 7, and 12, 2001.
We have considered carefully the information you have
provided, as well as Census data, and comments and information
from other interested parties. According to the 2000 Census, the
Haskell Consolidated Independent School District [the district]
has a population of 3,845, of whom 19.7 percent are Hispanic and
3.2 percent are black persons.
Our analysis of the district's electoral history indicates
that under the current method of election, which utilizes seven
single-member districts, Hispanic voters have been able to elect
candidates of their choice to office in at least one district.
We note that this election method resulted from the settlement of
federal litigation claiming that the previous method, an at-large
system with staggered terms, violated Section 2 of the Voting
Rights Act. League of United Latin American Citizens, District 5
LULAC v. Haskell Consolidated Independent School Districts, No.
193-CV-0178(C) (N.D. Tex. Oct. 21, 1994). The school district
implemented the single-member district system, which contained
one district with a Hispanic population majority, in 1995.
Under a cumulative voting system, voters are allocated a
number of votes equal to the number of offices that are being
contested at that particular election and can assign all of their
votes to one candidate. Thus, a candidate supported by voters
who are a minority of the electorate can win with support from
fewer voters than in a traditional at-large election. A
statistical measure, known as the "threshold of exclusion," can
determine the lowest percentage of support from a single group
that ensures their candidate will win no matter what other voters
do. This level of support is 33 percent in a two-seat race and
25 percent in a three-seat race. Thus, for Hispanic voters to
elect a candidate of their choice in a three-seat contest, they
must either constitute 25 percent of the electorate or be able to
count on enough non-Hispanic votes to reach that threshold. The
school district has conceded that it will be virtually impossible
for minority voters to elect at least one candidate of their
choice under the board's proposed method of election without non-Hispanic cross-over voting.
Accordingly, we have examined the ability of candidates supported by the Hispanic community to
attract non-Hispanic votes in past elections.
Only one Hispanic candidate had been elected to the board of
trustees prior to the implementation of single-member districts
in 1995. From 1981 to 1994, there were five attempts by four
Hispanic candidates to win a seat on the school board. Based on
the information provided by the district, in only one instance
has a Hispanic candidate's vote total exceeded the threshold of
exclusion. In the 1993 contest for Place 1, a Hispanic
candidate's vote total exceeded the threshold by only 0.8
percentage points. Accordingly, based on the information
available, it appears that candidates favored by the Hispanic
community have not consistently received significant non-Hispanic
cross-over voting, much less at the levels claimed by the
Given the demographics of the school district and apparent
voting patterns within it, the jurisdiction has not carried its
burden that the proposed change will not significantly reduce the
ability of minority voters to elect candidates of their choice to
the school board.
We have also examined the reasons proffered by the district
in support of the change, such as allegedly low voter turnout
during the time that it utilized single-member districts as
compared to purportedly higher turnout under the at-large system.
An analysis of past voter turnout information does not support
the board's position. For example, in May 2001, the board claims
that less than one percent of the registered voters in District 1
cast a ballot. A closer examination indicates that the candidate
for that position was unopposed and the election would have been
cancelled, with the candidate being sworn into office, had there
not been another office on the ballot being contested.
Moreover, in both the Section 5 submission and at the
February 10, 2000, public hearing, school board officials claimed
that voter turnout was higher in at-large elections. The
district cited the 1993 election, calculating that 1,465 persons
voted, a 64.5 percent turnout rate, and, the 1994 election in
which 1,863 persons, or 73 percent of the registered voters
voted, as evidence of the need to return to at-large elections.
This assertion does not withstand close scrutiny. In both of
these elections, two numbered posts were up for election and a
voter could vote for both posts. According to the 1993 election
returns, there were 730 votes for Place I candidates and 735
votes for Place II candidates for a total of 1,465. The 1994
figure of 1,863 is the result of similar calculation. The only
way to arrive at the district's numbers is to assume that every
voter who cast a ballot for one post chose not to vote for the
second office. We do not believe that such an assumption is
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 to
cumulative voting with staggered terms.
In its request for preclearance, the district notes that if,
in fact, the change is retrogressive, individuals in the minority
community would be free either to petition the board to change
the method of election or to institute further litigation. This
suggestion ignores the essential purpose of Section 5, which is
to ensure that gains achieved by minority voters not be subverted
by retrogressive changes. Accordingly, we can not accede to the
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 changes continue to be legally unenforceable. Clark v.
Roemer, 500 U.S. 646 (1991); 28 C.F.R. 51.10.
The Attorney General will make no determination regarding
the submitted implementation schedule because it is dependant
upon the objected to change in the method of election.
We understand that the school district employs Spanish
language election procedures. "Spanish language election
procedures" refers to such matters as the procedures for
translating election-related information and materials (e.g.,
notices, advertisements, informational pamphlets, ballots) into
Spanish (include examples of such documents), procedures for
confirming the accuracy of the translations, and the procedures
used to provide oral assistance or information in Spanish at
polling places, early voting locations, as well as publicity in
Spanish regarding the availability of Spanish language
assistance. See Interpretive Guidelines: Implementation of the
Provisions of the Voting Rights Act Regarding Language Minority
Groups, 28 C.F.R., Part 55 (copy enclosed).
Our records fail to show that this change affecting voting
has been submitted to the United States District Court for the
District of Columbia for judicial review or to the Attorney
General for administrative review as required by Section 5 of the
Voting Rights Act, 42 U.S.C. 1973c. If our information is
correct, it is necessary that this change either be brought
before the District Court for the District of Columbia or
submitted to the Attorney General for a determination that it
does not have the purpose and will not have the effect of
discriminating on account of race, color, or membership in a
language minority group. Changes which affect voting are legally
unenforceable without Section 5 preclearance. Clark v. Roemer,
500 U.S. 646 (1991); Procedures for the Administration of Section 5 (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 Haskell
Consolidated Independent School District plans to take concerning
this matter. If you have any questions, you should call Ms.
Judybeth Greene (202-616-2350), an attorney in the Voting
Section. Refer to File No. 2001-2924 in any response to this
letter so that your correspondence will be channeled properly.
Ralph F. Boyd, Jr.
Assistant Attorney General
Civil Rights Division