Title
Receive a report and recommendation from the Legislative Committee in response to a Board Referral related to possible adoption of a resolution urging the Supreme Court to affirm the constitutionality of the Voting Rights Act.
Report
It is recommended that the Board of Supervisors receive a report and recommendation from the Legislative Committee in response to a Board Referral related to possible adoption of a resolution urging the Supreme Court to affirm the constitutionality of the Voting Rights Act.
SUMMARY:
On 3/12/13, Supervisor Armenta made a referral to the Legislative Committee requesting review and recommendation of a resolution urging the Supreme Court to affirm the constitutionality of Section 5 of the Voting Rights Act. The Legislative Committee considered this item at their meeting on 3/18/13, and recommends that the Board adopt that attached resolution.
DISCUSSION:
The Voting Rights Act, first passed in 1965, outlaws discriminatory electoral practices, including the use of tests or devices to exclude minorities. Section 4 of the Act contains a formula that determines what jurisdictions (whole states or parts thereof) have had a history of discriminating against minority voters, and thus are "covered jurisdictions." Section 5 of the Act contains requirements for the covered jurisdictions to obtain pre-clearance for any changes to the methods or requirements applicable to voting and or elections prior to being able to apply those standards. The initial application of the law was directed at key southern states, but later amendments to the law expanded the application of the law to jurisdictions with what was considered historical discriminatory electoral practices. This later reassessment resulted in parts of other states and four California counties to be considered "covered jurisdictions." These determinations were based in part on inappropriate, historical, electoral practices, whether or not intentional or influenced by local conduct, such as providing election information, like ballots and pamphlets, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age, the existence of a State literacy requirement for voting, the lack of any provision or mandate for bilingual voting materials in California law, and historical voter turnout of under 50% during a presidential election. Importantly, unique to all California covered jurisdictions was the existence of an operational military base within the County during active participation in the Vietnam War. Due to the evaluation under these criteria, Monterey County, along with Kings, Merced and Yuba counties, became subject to the federal preclearance requirements set forth in Section 5 of the Voting Rights Act.
Section 5 governs changes in voting procedures, with the purpose of preventing jurisdictions covered by its requirements from enacting or seeking to administer voting changes that have a discriminatory purpose or effect. As a jurisdiction covered by Section 5, Monterey must obtain federal preclearance-either administrative or judicial-of any voting practice different from the practices in effect on November 1, 1968. Section 5 also extends these same special controls on the conduct of elections for all local common voting procedures for all jurisdictions and entities within the County, such as filling City Council vacancies, ballots and other voting materials, consolidating voting precincts for special elections, or having to relocate polling place locations. To obtain administrative preclearance of a changed voting practice, a covered jurisdiction submits the enactment to the Attorney General of the United States. If the Attorney General does not formally object to the new procedure within 60 days of submission, the jurisdiction may enforce the legislation. A covered jurisdiction may also obtain judicial preclearance-either directly or after the Attorney General has objected to the voting change-by securing in the United States District Court for the District of Columbia a declaratory judgment that the new practice "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color
." Monterey County has been successfully pre-cleared for any changes it has requested as a covered jurisdiction.
Sections 4 and 5 of the Voting Rights Act require periodic reauthorization by Congress. Congress opted to not change the coverage formula contained in § 4 when it last reauthorized the Voting Rights Act in 2006 with broad, bipartisan support; the vote was 98-0 in the Senate and 390-33 in the House.
The U.S. Supreme Court heard oral arguments on February 27, 2013, in a case, Shelby County v. Holder, that could dramatically alter the scope of the Voting Rights Act. Shelby County, Ala., has challenged the constitutionality of § 5 by noting that the coverage formula of § 4 still uses evidence of tactics used to limit voting and lower turnout during elections in the 1960s and 1970s. If the Court declares the Voting Rights Act fully or partially unconstitutional, Congress may be faced with updating the formula that determines which areas are subject to preclearance; the impact on Monterey County is unknown at this time. A ruling is expected before the Supreme Court recesses at the end of June.
OTHER AGENCY INVOLVEMENT:
The County Administrative Office - Intergovernmental & Legislative Affairs Division prepared this report with the assistance of and research by the County Counsel Office. Information was provided by the Board Referral from Supervisor Armenta, and from Brent R. Heberlee of Nossaman LLP, the County's federal legislative advocate.
FINANCING:
Monterey County's Legislative Program is funded in County Administrative Office-Department 1050, Intergovernmental & Legislative Affairs Division-Unit 8054. Approval of the referred resolution will not result in additional general fund contributions.
Prepared by: Approved by:
Annette D'Adamo Nicholas E. Chiulos
Management Analyst III Assistant County Administrative Officer
Date: March 19, 2013
Attachment: Draft Resolution Voting Rights Act Section 5
cc: Linda Tulett, Registrar of Voters
Charles McKee, County Counsel