||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||October 1, 2001|
Tommy Coleman, Esq.
Hodges, Erwin, Hedrick & Coleman
P.O. Box 2320
Albany, Georgia 31702-2320
Dear Mr. Coleman:
This refers to Act No. 384 (1966), which adopts numbered
posts for city councilmembers; Act No. 522 (1973), which adopts a
majority-vote requirement for the election of city officers; and
six annexations (Act No. 1019 (1970), and Ord. Nos. 001, 002
(1981), 01 (1989), 03 (1994), and 01 (2000)) to the City of
Ashburn in Turner County, Georgia, 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 December 19, 1995,
request for additional information on August 1, 2001.
The Attorney General does not interpose any objection to the
six annexations. 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
changes. See the Procedures for the Administration of Section 5
(28 C.F.R. 51.41).
Regarding the numbered posts and majority-vote requirement,
adopted in 1966 and 1973, respectively, we have carefully
considered the information you have provided, as well as
information in our files, Census data, and information and
comments from other interested persons. According to the 2000
Census, black persons represent 64.7 percent of the city's total
population and 58.7 percent of its voting age population; the
city's records indicate that as of October 1, 2000, the city had
2,784 registered voters, of whom 1,418 (50.9%) were black.
Prior to 1966, the city council consisted of a mayor and
five members, elected at large by plurality vote to two-year,
staggered terms. Under that system, the city held multi-seat
contests with all candidates running together. Candidates were
ranked by the number of votes received and the number of
successful candidates was determined by the number of seats being
contested. For example, if there were three seats open, then the
candidates with the three highest vote totals were elected.
This electoral system, which as a result of the city's
failure to obtain Section 5 preclearance of the changes at issue,
is the last legally enforceable method of election. Accordingly,
it is the benchmark against which the Attorney General determines
whether the city has met its burden of establishing that the
proposed changes do not have a discriminatory effect and do not
have a discriminatory purpose. See Romev. United States, 446
U.S. 156, 183-85 (1980); 28 C.F.R. § 51.54(b).
Numbered posts frustrate single-shot voting, also known as
"bullet voting," a method used by black voters to circumvent the
refusal of white voters to support candidates that the minority
community supports. Numbered posts create separate city-wide
elections for each seat with only the top vote-getter being
elected. The results of the 1986 election for Post 4 in Ashburn
illustrate the effect of numbered posts. In that election, there
were four candidates, and the third place finisher, a black
candidate, was supported by the minority community. If we look
at this election, not as one just for Post 4, but rather as one
for all three positions, the black candidate, by finishing in
third place, would have been elected. However, because the
election was only for a single position with only the top vote-getter being elected, he was defeated.
A majority-vote requirement also creates head-to-head
contests between minority and white candidates. If white voters
split their votes among several candidates, the minority
community's candidate may receive the highest number of votes in
the election, but fall short of a majority. The imposition of a
majority-vote requirement results in a head-to-head runoff in
which the white vote will control the outcome of the election.
In the 1999 election, both John Burgess and Mary Office were
supported by the minority community and received the highest
number of votes in the primary election. However, each was
defeated in the runoff in head-to-head contests with white
A change affecting voting is considered to have a
discriminatory effect under Section 5 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.
v. United States
, 425 U.S. 130, 140-42 (1976); see also
C.F.R. § 51.54(a); The burden is on the jurisdiction to show the
change is not retrogressive. Reno
v. Bossier Parish School
, 120 S. Ct. 866, 871-72 (2000); see
28 C.F.R. § 51.52(a).
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 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 adoption of numbered posts and the majority-vote
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 adoption of numbered posts and the majority-vote requirement
continue to be legally unenforceable. Clark
, 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
Ashburn plans to take concerning this matter. If you have any
questions, you should call David Harris (202-305-2319), an
attorney in the Voting Section.
Ralph F. Boyd, Jr.
Assistant Attorney General
Civil Rights Division