||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||December 11, 2001|
J. Lane Greenlee, Esq.
P.O. Box 430
Winona, Mississippi 38967-0430
Dear Mr. Greenlee:
This refers to the cancellation of the June 5, 2001, general
election for the Town of Kilmichael in Montgomery County,
Mississippi, 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 September 21, 2001, request for additional
information on October 12, 2001; supplemental information was
received on November 26 and 27, 2001.
We have considered carefully the information you have
provided, as well as census data, and comments and information
from other interested parties. As discussed further below, I
cannot conclude that the town's burden under Section 5 has been
sustained in this instance. Therefore, on behalf of the Attorney
General, I must object to the cancellation of the June 5, 2001,
According to the 2000 Census, the Town of Kilmichael has a
population of 830, of whom 52.4 percent are black. Since 1990,
black residents have become a majority of the town's population
and, recently, a majority of its registered voters.
The town is governed by a mayor and a five-member Board of
Aldermen, all of whom are elected at the same time to four-year
terms, under an at-large system with a plurality vote
requirement. Currently, the mayor and all five board members are
white. Only one black person has served on the board; in fact,
since 1965, only four other black candidates have ever run for
board positions. None of these four was successful. Until 2001,
no black person had sought the office of mayor.
The office of mayor and all board seats were to be filled at
the June 5, 2001, general election. During the qualification
period for this election, for the first time a significant number
of black candidates qualified for both races. In the Board of
Aldermen race, there were ten candidates running for the five
board positions, four of whom were black. In the mayoral race,
three individuals, one of whom was African American, qualified.
Three weeks before the election, and following the close of
candidate qualification, the town sought to cancel the election.
On May 15, 2001, with no notice to the community, the board
unanimously voted to cancel the general election. The town
obtained approval from the town election commission and from a
state circuit court for this action. In the Matter of the
General Election for Mayor and Aldermen of the Town of Kilmichael
of June 2001, Case No. 2001-0073CV-L (Cir. Ct. Montgomery Cty.
Miss. May 21, 2001). The following day, the town advised the
candidates of the court's decision and provided them with copies
of the court order.
The stated purpose for the town's action was to develop a
single-member ward system for electing town officials. However,
our analysis of the information provided by the town, taken as a
whole, has caused us to conclude that the town has not
established that its decision was motivated by reasons other than
an intent to cause retrogression in minority voting strength.
A significant factor in our analysis is the context in which
the town reached its decision. First, the decision to cancel
the election came only after black persons had become a majority
of the registered voters and the release of census data indicated
that black persons were now a majority of the population in the
town. Second, the decision occurred only after the qualification
period for the election had closed, and it became evident that
there were several black candidates for office, and that under
the existing at-large electoral method, the minority community
had the very strong potential to win a majority of municipal
offices, including mayor.
The town's purported non-racial rationales for the decision
do not withstand scrutiny. First, the town points to a
conversation, which occurred in February or March of this year,
between former aldermanic candidate Robert Hamer and one of the
current board members. However, there is no evidence that Mr.
Hamer advocated any change in the upcoming election date.
Furthermore, the minutes of the March 6, 2001, meeting in which
Mr. Hamer's request is noted reflect the board's position not
only that a decision on the change could be postponed, but also
that any discussion on the change was not of immediate import.
It thus appears that the board did not focus on changing the
method of election until it became clear that the minority
community potentially could win the mayoral seat as well as four
of the five aldermanic seats.
Second, the town points to federal litigation filed in April
as a reason to cancel the election. One aspect of that
litigation concerned the effect that the recent release of the
census data would have on the municipalities that elected its
governing bodies from districts. Mississippi
State Conference, NAACP v. Amory, Mississippi,
Civil Action No. 01-CV-98 (N.D. Miss. Apr. 25, 2001). However, that part of the
litigation had no relevance to the town's existing at-large method of election.
The litigation also alleged that the at-large method of election
violated federal law in several other identified municipalities,
but Kilmichael was not named as a defendant or a potential
defendant in the litigation. Thus there was no imminent danger
of litigation that would lead the town to cancel the election.
Finally, we note that election-related federal litigation has
been occurring in Mississippi for approximately 30 years.
In addition to the town's failure to establish the absence
of a discriminatory purpose, we have concluded that it also has
failed to establish that the change does not have a prohibited
effect under Section 5. Canceling an election in which the
minority community would be able to exercise effectively the
electoral franchise - especially one in which there is a
significant number of minority candidates qualified for office
and black voters are a majority of registered voters - is
retrogressive. Had the election been held, blacks would have
exercised the opportunity to attempt to elect candidates of their
choice to the mayoral and board seats. The cancellation of this
election leaves black citizens worse off because of the denial of
Under the Voting Rights Act, a jurisdiction seeking to
implement a proposed change affecting voting must establish that,
in comparison with the benchmark standard, the change does not
"lead to a retrogression" in the position of minority voters with
respect to the "effective exercise of the electoral franchise."
See Beer v.
United States, 425 U.S. 130, 141 (1976).
In addition, the jurisdiction must establish that the change was not adopted with an intent
to retrogress. Reno v.
School Board, 528 U.S. 320, 340 (2000).
The submitting authority has the burden of demonstrating that the proposed change has
neither the prohibited purpose nor effect. Id.
at 328; see also 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
cancellation of the June 5, 2001, general 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 change continues to be legally unenforceable.
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 Town of
Kilmichael plans to take concerning this matter. If you have any
questions, you should call Mr. David H. Harris, Jr. (202-305-2319),
an attorney in the Voting Section. Refer to File No. 2001-2130
in any response to this letter so that your correspondence will be channeled properly.
Ralph F. Boyd, Jr.
Assistant Attorney General
Civil Rights Division