Counties in VA Bail Out of VRA's Section 5

The Justice Department announced that it has reached agreements with Carroll County and Craig County, Va., that will allow the counties and their political subdivisions to bail out from their status as “covered jurisdictions” under the special provisions of the Voting Rights Act, and thereby exempt these jurisdictions from the preclearance requirements of Section 5 of the Voting Rights Act.

Under Section 5 of the Voting Rights Act, certain covered jurisdictions, determined according to Section 4 of the act, are required to seek preclearance for any changes in voting qualifications, standards, practices or procedures from the U.S. District Court for the District of Columbia or from the U.S. Attorney General, prior to their implementation. Section 4 of the act provides that a covered jurisdiction may seek to “bail out,” or remove itself from such coverage, and therefore be exempted from the preclearance requirements, by seeking a declaratory judgment before a three-judge panel in U.S. District Court for the District of Columbia. A bailout judgment can be issued only if the court determines that the jurisdiction meets certain eligibility requirements for bailout contained in the statute, including a 10-year record of nondiscrimination in voting-related actions. The act also provides that the attorney general can consent to entry of a judgment of bailout only if, based upon investigation, the attorney general is satisfied that the jurisdiction meets the eligibility requirements.

Carroll County and Craig County filed these bailout actions in the U.S. District Court for the District of Columbia on July 17, 2012, and July 18, 2012, respectively. Counsel for both counties contacted the attorney general prior to filing the action, indicating that the counties were interested in seeking a bailout. Both counties provided the Justice Department with substantial information, and the department conducted an investigation to determine their eligibility. Based on that investigation, the department is satisfied that both Carroll and Craig counties meet the Voting Rights Act’s requirements for bailout. “In the department’s view, Carroll County and Craig County have met the requirements necessary for bailout. We reached this conclusion after thoroughly reviewing information provided by the counties and gathered during the department’s independent investigation,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “I commend the counties on their cooperation to ensure resolution of this matter.”










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Protecting the Right to Vote and Prosecuting Ballot Fraud

In anticipation of the upcoming election, the Justice Department today provided information about its efforts, through the Civil Rights and Criminal Divisions, to ensure that all qualified voters have the opportunity to cast their ballots and have their votes counted free of discrimination, intimidation or fraud in the election process.

Civil Rights Division:

The Civil Rights Division is responsible for ensuring compliance with the civil provisions of federal laws that protect the right to vote, and with federal criminal laws prohibiting discriminatory interference with that right. As it has in the past, on Election Day, Nov. 6, 2012, the Civil Rights Division will implement a comprehensive program to help ensure ballot access that will include the following:


Shortly before the election, the Civil Rights Division will announce which jurisdictions will have federal personnel as election monitors and observers at polling places.

Civil Rights Division attorneys in both the Voting and Criminal Sections in Washington, D.C., will be ready to receive election-related complaints of potential violations relating to any of the statutes the Civil Rights Division enforces. Attorneys in the division will take appropriate action and will consult and coordinate with local U.S. Attorneys’ Offices and with other entities within the Department of Justice concerning these complaints before, during, and after Election Day, as appropriate.

Civil Rights Division staff will be available by phone to receive complaints related to ballot access (1-800-253-3931 toll free or 202-307-2767) or by TTY (1-877-267-8971).

In addition, individuals may also report complaints, problems, or concerns related to voting by fax to 202-307-3961, by email to voting.section@usdoj.gov and, closer to Election Day, by complaint forms that may be submitted through a link on the department’s website, at www.justice.gov/crt/about/vot/.









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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NY Redistricting Lines Still Open to Change

Last week Governor Cuomo signed off on the new State Senate and Assembly districts, seemingly ending the redistricting saga, but those lines still have some hurdles to overcome.

First, the U.S. Justice Department must certify that the lines conform with the Voting Rights Act.

Then the State Senate Democrats filed a lawsuit that the creation of a 63rd State Senate seat violates the state constitution and was done only to help the Republican majority retail power.

There is still a possibility these lines could be struck down and the courts would have to step in once again. So in Brooklyn Federal Court, a panel of federal judges directed a court-appointed expert to start looking at new state lines by April 9, a move cheered by civil rights groups.

"Today the court has agreed to hold onto the case just to make sure that if there's a problem with the maps, that the court will be ready to step in," said Esmeralda Simmons of the Center for Law and Social Justice.

That same Brooklyn court has already created new Congressional lines, setting the stage for some interesting primary races for and between incumbents.

For example, Congressman Charles Rangel's district has been redrawn to encompass a large chunk of the Bronx, which is now majority Hispanic. So State Senator Adriano Espaillat has begun the process of gathering signatures in order to challenge Rangel in a primary.









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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NY Redistricting Update

New York still has not created the new redistricting maps required by the 2010 Census.

Governor Cuomo, whose approval is required to pass a redistricting plan has taken the unequivocal step of promising to veto any redistricting plan passed under the current, non-independent redistricting process. On February 17, 2011, Governor Andrew Cuomo’s office released a statement acknowledging that “Governor Cuomo has pledged that if an agreement on permanent reform of the redistricting process is not reached, he will veto the redistricting plans passed by the Legislature if those plans have been developed under the existing process and prioritize partisan and incumbent interests over the voters’ interests.”

On July 6, 2011, Governor Cuomo reiterated his pledge, stating, “I will veto a plan that is not independent or a plan that’s partisan . . . That’s what I’ve said all along. That’s what the people of the state of New York overwhelmingly support.”

And on September 30, 2011, when asked whether he would veto the redistricting boundaries being drafted by the legislature, Governor Cuomo responded “yes,” and added that he: believe[s] the process is not independent, and I don’t see how a non-independent process can come up with an independent product. I therefore would veto a bill that was not an independent product. It would then go to the courts. Period. And that’s what I have said, and that’s what I’m sticking by.

Then this week, The Supreme Court delivered a unanimous drubbing on redistricting.

In Perry v. Peres, the Justices rejected a series of election maps redrawn by a lower court in Texas to replace a map created by the Texas legislature to account for the population growth and four new Congressional seats. The Supreme Court noted that the lower court had "exceeded its mission" and it sent the maps back to the drawing board.

In its decision, the Justices said redistricting is "primarily the duty and responsibility of the State," and that when faced with drawing maps, a court should take it cues from the version done by the lawmakers, with whom authority properly lies.

The Justices wrote ""faced with the necessity of drawing district lines by Judaical order, a court should be guided by the legislative policies underlying a state plan as long as those policies do not violate the Voting Rights Act or the Constitution."









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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NY Violates Voting Rights Act

The Brennan Center of Justice notified the U.S. Department of Justice on April 20, 2010 that the New York State Board of Elections has violated Section 5 of the Voting Rights Act (VRA).

The violation stems from the NYS Board of Elections’ recent decision to switch to new voting machines that could disenfranchise New Yorkers in the gubernatorial race this year.

Section 5 of the Voting Rights Act requires designated jurisdictions to submit proposed changes to their voting systems to the DOJ for “preclearance,” or approval. The recent change affects Manhattan, Brooklyn and the Bronx — designated Section 5 jurisdictions.

The policy change involves how New York handles “overvoted” ballots. Under the new voting system — which will be used throughout the state for the first time in the September primaries — voters will fill out ballots that will be read by an optical scanner. If the machine determines a voter has selected too many candidates for a particular vote, it will not count the vote in that contest. These “overvotes” can occur because the voter misreads the ballot and selects more candidates than they are entitled to vote for, or because the machine misinterprets a voter’s mark as an extra choice.

The change is likely to have a disproportionate affect on minority voters. Florida instituted this rule change before the 2008 election, and minority voters, in particular, experienced substantially higher rates of loss due to overvoted ballots. Although minority voters will experience the worst impact, all voters in New York will be affected.

“New York should learn from Florida’s problems in 2008. The new voting machines can be modified to avoid the potential problems of lost votes,” said Lawrence Norden, Brennan Center senior counsel.” And there is a chance to fix the problem before New York’s primary.”

New York’s lever machines prevented overvotes in the past by making it impossible to cast an overvoted ballot. Under the new procedure, when a voter overvotes, New York’s voting machines will retain the ballot, rather than immediately reject it; will not notify voters of the consequences of casting an overvoted ballot; and will display a confusing message.


There is no explanation of what “over voted” means, nor is there an explanation of the consequences of casting an overvoted ballot. The screen message asks the voter whether they would like the ballot be “accepted” (indicated by a green button with a check mark) or “[not] cast” and “returned” (indicated by a red button with an “x”).

Two states, Wisconsin and Florida, have addressed this issue by revising their screens, so four advocacy groups have asked New York to take a look and do the same thing. So, for example, the notification that comes up on the screen says "You've overvoted" and a green button comes up that says "Override this” and a red button comes up that says "Take your ballot back to correct the error." So it does sort of skew it into pushing the override rather than the red button that is in the form of a stop sign that says "Take your ballot back."

Florida has revised its screen by reversing the message. In big letters: "Warning, your vote will not count in this contest. Please correct the error." And then the green button is to correct the error and the red button is to override and accept the ballot.

Any changes, unfortunately, does require work on the part of the NY Election staff, and if changes are approved, the vendors will have to modify the software and submit it for recertification. The Optical Scan vendor, ES&S, already did this in Florida, so if it was done properly and re-certified in Florida, then it shouldn't have to go through a whole rigmarole in doing it in New York. We don't know yet what the other approved Optical Scan system by Dominion response to this change will be.

The Brennan Center addressed the letter to T. Christian Herren, Jr., Acting Chief of Voting Section in the Civil Rights Division of the Department of Justice.

Michael H. Drucker
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