Dear Mr. Heath,
This refers to your request that the Attorney General reconsider and withdraw the
December 14, 1998, objection interposed under Section 5 of the Voting Rights
Act, 42 U.S.C. 1973c, to a charter amendment that changes the method of
election for the city council from six single-member districts to four
single-member districts, with two members elected at large to numbered posts.
We received your request on August 3, 2011; additional information was received
through September 12, 2011.
A jurisdiction may request reconsideration of an objection and, in that request,
demonstrate that “there appears to have been a substantial change in the
operative facts or relevant law” that would warrant a change in the Attorney
General’s previous determination. Procedures for the Administration of
Section 5 of the Voting Rights Act of 1965, 28 C.F.R. § 51.49. The
submitting authority has the burden of establishing the existence of such a
change in circumstances that would warrant a different determination.
We have carefully considered our earlier determination in this matter and reviewed
the information and arguments you have advanced in support of your request, as
well as census data, information in our files, and comments received from other
interested persons. According to the 2010 Census, the city’s total population
is 19 percent black and 31.3 percent Hispanic. Under the existing system, six
councilmembers are elected from single-member districts, and the mayor is
We start with a review of the procedural history of the city’s attempts to implement a method of election that consisted
of four councilmembers elected from single-member districts, two members
elected on an at-large basis using numbered posts, and a mayor elected at large
to replace its existing at-large system.
Prior to 1992, the city was governed by a
mayor and six councilmembers, all of whom were elected at large by majority
vote for staggered terms. In August 1990, minority plaintiffs filed an action
alleging that the city’s at-large system violated Section 2 of the Voting
Rights Act. Arceneaux v. City of Galveston, No. G-90-221 (S.D. Tex.).
During the course of the litigation, the city appointed a charter review
committee to review and make recommendations for amendments to the city
charter. The committee proposed a method of election consisting of four
councilmembers elected from single-member districts, two councilmembers elected
at large from numbered positions, and the mayor elected at large (“4-2-1 method
of election”). The proposed changes were approved by the voters in a November
5, 1991, referendum election. The city submitted the 4-2-1 method of election for
Section 5 review. In 1992, the court granted preliminary relief, enjoining the
city’s May 1992 municipal election pending the Department of Justice decision
regarding the city’s 4-2-1 method of election.
On December 14, 1992, the Attorney General
interposed an objection to the 4-2-1 method of election because the city had
not met its burden under Section 5 of demonstrating the absence of a discriminatory
purpose and retrogressive effect.
After the 1992 objection, the parties in
the Arceneaux suit reached a settlement agreement. On February 16,
1993, the court entered a consent decree which established a method of election
and districting plan in which six councilmembers are elected from single-member
districts and the mayor is elected at large. This method of election and
districting plan received preclearance under Section 5 for use on an interim
basis on April 29, 1993, and for use on a permanent basis on January 27, 1994.
On June 16, 1998, the city submitted numerous amendments to the city charter for Section 5
review. The amendments had been approved by voters in a referendum election.
One of the amendments, Proposition 10, provided for a virtually identical
change in the method of election for the city council from six single-member districts
to four single-member districts with two additional members elected at large to
numbered posts. On December 14, 1998, the Attorney General again interposed an objection under
Section 5 to those proposed changes because the city had not met its burden
under Section 5 of demonstrating the absence of a discriminatory purpose and
retrogressive effect. In 2001, the city requested that the Attorney General
reconsider and withdraw the December 14, 1998, objection. In support of that
request, the city pointed to the 2001 Census that indicated Hispanics
supplanted African-Americans as the predominant minority group in the city.
The city also noted that a Hispanic mayor was elected in 2000, but there was no
indication that racial bloc voting was no longer an operative factor in city
elections. After a review of this additional information, the Attorney General
remained unable to conclude that the city carried its burden of showing that
the submitted changes have neither a discriminatory purpose nor a discriminatory
effect and declined to withdraw the objection.
In light of the Attorney General’s prior objections to virtually identical voting
changes, and the requirement that the submitting authority carries the burden
of demonstrating that proposed voting changes are free of discriminatory
purpose and retrogressive effect, we have examined the information provided to
determine whether new factual or legal circumstances exist which would lead to
the conclusion that voting changes that did not satisfy the nondiscrimination
requirement of Section 5 in 1992, 1998, and 2002 will satisfy that requirement
under Section 5 today.
Under Section 5 of the Voting Rights Act, the submitting authority bears the
burden of showing that a submitted change has neither 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. 51.52; South Carolina v.
Katzenbach, 383 U.S. 301, 328, 335 (1966). A voting change that has
the purpose or will have the effect of diminishing the ability of minorities to
elect their preferred candidates of choice denies or abridges the right to vote
within the meaning of Section 5. 42 U.S.C 1973c(b).
A voting change has a discriminatory effect if it will lead to a retrogression
in the ability of language or racial minorities “with respect to their
effective exercise of the electoral franchise.” Beer v. United
States, 425 U.S. 130, 141 (1976). The voting change at issue must be
measured against the benchmark practice to determine whether the ability of
minority voters to participate in the political process and elect candidates of
their choice will be “augmented, diminished, or not affected by the change
affecting voting.” Ibid.
With respect to the city’s ability to demonstrate that the plan was adopted
without a prohibited purpose, the starting point of our analysis is Village
of Arlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252 (1977). In Arlington Heights, the court provided a
non-exhaustive list of factors that bear on the determination of discriminatory
purpose, including, but not limited to, the disparate 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.
As it did in 2001, the city notes that a Hispanic candidate was elected mayor
in 1998 and 2000. The city’s current request notes this occurred again in 2002,
and that a Hispanic candidate was elected as councilmember from a district with
a Hispanic population percentage of less than 50 percent. As it in 2001, the city’s
submission asserts that it is not longer possible to draw two districts with a
predominately black population. In addition to the information previously
provided in 2001, which noted that Hispanics had become the predominate
minority group, the city’s most recent information points to the results of the
2010 Census that the black population has decreased significantly in the past decade.
Our review of the demographics of the current districts and the results for
elections conducted since 2001 as well as the information provided by the city
does not alter our earlier determination that city has not established the
absence of a retrogressive effect. Racial bloc voting continues to play a
significant role in city elections. Under the existing method of election,
minority voters currently have the ability to elect a candidate of choice in
three of the six single-member districts. In contrast, this ability would exist
only in two of the four districts and in neither of the two at-large positions
under the proposed system. Indeed, in the course of our investigation, the
city acknowledged that the proposed method of election will decrease the number
of minority ability-to-elect districts. As a result, the city has failed to
establish that the proposed 4-2-1 method of election with numbered posts would
not lead to a retrogression in minority voting strength prohibited by Section 5.
The city’s most recent request provides virtually no discussion of the motivation
for seeking the 4-2-1 method of election, other than the results of the 1998
referendum election. Given the Attorney General’s previous determinations in
1992, 1998, and 2002 that the city had failed to meet its burden of demonstrating
that the 4-2-1 method of election was not motivated by a discriminatory
purpose, and in light of the absence of any additional information from the
city to indicate it can now meet that standard in the context of a proposed
change that is admittedly retrogressive, we find no basis to alter our earlier
In light of these considerations, I remain unable to conclude that the city has carried its
burden of showing that the submitted changes have 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. Therefore, on behalf of the Attorney
General, I must decline to withdraw the objection to the charter
amendments that provide for a change in the method of election for the city
council from six single-member districts to four single-member districts, with
two additional members elected at large to numbered posts.
As we previously advised, you may seek a declaratory judgment from the United
States District Court for the District of Columbia that the proposed changes have neither 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. Unless and
until such a judgment is rendered by that court, the objection by the Attorney
General remains in effect and the proposed 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 the City of Galveston plans to take concerning this matter. If you have
any questions, you should contact Robert S. Berman, (202/515-8690), a deputy chief in the
/ s /
Thomas E. Perez
Assistant Attorney General