March 20, Senior Assistant County Attorney

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1 M E M O R A N D U M March 20, 1991 TO : The Members of the Montgomery County Commission on Redistricting FROM:. Linda B. T h a l l d d k d--7ifalc Senior Assistant County Attorney RE: Voting Rights Act - Impact on Redistrictinq The Fifteenth Amendment to the United States Constitution denies the government the power to deprive United States citizens of the right to vote on account of their race or color. To further the purposes of this amendment, Congress enacted the Voting Rights Act of This Act can be found at 42 U.S.C. $1973, et seq. The Commission has asked how the Act will impact on its redistricting efforts. By way of background, the most significant portions of the original Act were aimed at states and political subdivisions where Congress determined that literacy tests or other voter qualification devices were being used to discriminate on the basis of race. This part of the Act is contained in 42 U.S.C. 1973b, which is commonly referred to as Section 4 of the Act. States and political subdivisions in which less than fifty percent of the voting age population was either registered to vote as of November 11, 1964, or voted in the 1964 presidential election were also covered by Section 4. Section 4 was subsequently amended to extend to states and political subdivisions in which the percentage of registered voters or the voter turnout for the 1968 or 1972 presidential elections fell below fifty percent. Governmental entities covered under Section 4 of the Act must seek prior approval from the Attorney General or a three-judge panel of the District Court for the District of Columbia before implementing any changes in their standards, practices, or procedures with respect to voting qualifications. To the best of my knowledge, Montgomery County is not subject to these stringent provisions. The primary section of the Act applicable to Montgomery County is 91973: This section (commonly known as Section 2) now provides as follows: Section Denial or abridgement of right to vote on account of race or color through

2 Page 2 votinq qualifications or prerequisites; establishment of violation -. (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.. The section quoted above essentially provides that the County may not impose or apply a voting qualification or prerequisite to voting which would deny to a citizen the right to vote on account of that citizen's race or color. Through amendments to the Act in 1975, language minority groups (such as American Indians, Asian Americans, Alaskan natives, and citizens of Spanish heritage) are also included within the ~ ct's protections.

3 Page 3 The most controversial amendment to the Act, and the one of most importance and relevance to the work of this Commission, came in As originally enacted, Section 2 provided in its entiret.y as follows : No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color. This language was construed by the Supreme Court in City of Mobile, Alabama v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). That case involved a challenge to a multi-member election system on the ground that it diluted the voting strength of black voters. The Supreme Court, in a plurality opinion, said that Section 2 of the Act was violated only if the multi-member district was conceived or operated as a purposeful device to further racial discrimination. In other, words, a racially discriminatory impact or effect was held not to suffice to establish either a constitutional violation or a violation of Section 2. As a result of the Bolden decision, Congress amended Section 2 to make it clear that the discriminatory result of a challenged system or practice, without proof of a discriminatory motive, is sufficient to establish a violation of Section 2. Actual intent to discriminate is not required. Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). This has made it much easier for suits to be pursued against governmental entities such as Montgomery County and is at least partially responsible for an increase in the number of legal challenges to redistricting plans. The standard for success in a Voting Rights Act suit under Section 2 is spelled out in subsection (b) of that Section. A person bringing a vote dilution claim under Section 2 must produce evidence to show that, based on the totality of circumstances in the jurisdiction, the political processes leading to nomination and election are not equally open to participation by members of a class of citizens protected by the Act in that the members of the class have less opportunity than

4 Page 4 other voters to participate in the political process and to elect representatives of their choice. A plaintiff cannot succeed in showing a violation of the Act by merely showing that the class allegedly discriminated against has not been elected to office in proportion to its voting potential. (This is, however, one factor that may be considered when looking at the totality of circumstances.) The legislative history on the 1982 amendment to Section 2 provides additional guidance on factors to be considered under the totality of circumstances approach. Senate Report No. 205 identifies nine factors for courts to consider under this approach. These factors are as follows: 1. The extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. The extent to which voting in the elections of the state or political subdivision is racially polarized; 3. The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against minority groups; 4. If there is a candidate slating process, whether the members of the minority group have been denied access to that process ; 5. The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; 6. Whether political campaigns have been characterized by court or subtle racial appeals; 7. The extent to which members of the minority group have been elected to public office in the jurisdiction;

5 Page 5 8. Whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and 9. Whether the policy underlying this state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice, or procedure is tenuous. These factors are not intended to be exclusive, nor is there any requirement that any particular number of factors be proven. The intent is that all relevant factors be considered under a totality of circumstances approach to determine whether the voting strength of minority voters is being minimized or cancelled out. Although it is not dispositive, racially polarized voting is often the key factor in a vote dilution case. Thornburq v. Ginqles, supra. The existence of past discrimination and its lingering effects may also be important evidence to support a finding of a discriminatory result in violation of the Act. In arriving at a redistricting plan, the Commission should be aware that the plan must comply with Section 2 of the Voting Rights Act. To successfully withstand a legal challenge under this Act, the redistricting plan adopted must not have a discriminatory impact on the ability of minority voters to participate in the electoral process. cc: Joyce R. Stern County Attorney LBT : ban LBT