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Revision of Voting Rights Procedures

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Information about this document as published in the Federal Register.

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AGENCY:

Civil Rights Division, Department of Justice.

ACTION:

Final rule.

SUMMARY:

The Attorney General finds it necessary to revise the Department of Justice's “Procedures for the Administration of section 5 of the Voting Rights Act of 1965.” The revisions are needed to clarify the scope of section 5 review based on recent amendments to section 5, make technical clarifications and updates, and provide better guidance to covered jurisdictions and interested members of the public concerning current Department practices. Proposed revised Procedures were published for comment on June 11, 2010, and a 60-day comment period was provided.

DATES:

The rule will be effective on April 15, 2011.

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FOR FURTHER INFORMATION CONTACT:

T. Christian Herren, Jr., Chief, Voting Section, Civil Rights Division, United States Department of Justice, Room 7254-NWB, 950 Pennsylvania Avenue, NW., Washington, DC 20530, or by telephone at (800) 253-3931.

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SUPPLEMENTARY INFORMATION:

Discussion

Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c, requires certain jurisdictions (listed in the Appendix) to obtain “preclearance” from either the United States District Court for the District of Columbia or the United States Attorney General before implementing any new standard, practice, or procedure that affects voting.

Procedures for the Attorney General's Administration of section 5 were first published in 1971. Proposed Procedures were published for comment on May 28, 1971 (36 FR 9781), and the final Procedures were published on September 10, 1971 (36 FR 18186). As a result of the Department's experience under the 1971 Procedures, changes mandated by the 1975 Amendments to the Voting Rights Act, and interpretations of section 5 contained in judicial decisions, proposed revised Procedures were published for comment on March 21, 1980 (45 FR 18890), and final revised Procedures were published on January 5, 1981 (46 FR 870) (corrected at 46 FR 9571, Jan. 29, 1981). As a result of further experience under the 1981 Procedures, specifically with respect to redistricting plans adopted following the 1980 Census, changes mandated by the 1982 Amendments to the Voting Rights Act, and judicial decisions in cases involving section 5, revised Procedures were published for comment on May 6, 1985 (50 FR 19122), and final revised Procedures were published on January 6, 1987 (52 FR 486).

In the twenty-four years since the previous revisions became final, the Attorney General has had further experience in the consideration of voting changes; the courts have issued a number of important decisions in cases involving section 5, and Congress enacted the 2006 amendments to the Voting Rights Act. This new revision reflects these developments.

Comments

In response to the Notice of Proposed Rulemaking (“Notice”) published on June 11, 2010 (75 FR 33205), we received comments from or on behalf of two national public interest organizations, one research and educational institution, one national political organization composed of attorneys, and one individual. All comments received are available for inspection and copying at www.regulations.gov and at the Voting Section, Civil Rights Division, Department of Justice, Washington DC 20530.

The comments received expressed diverse views and were of great assistance in the preparation of these final revisions to the Procedures. The final revised Procedures reflect our consideration of the comments as well as further consideration of sections or topics that were not the subject of comments.

Section 51.2 Definitions

The purpose of the revision to the definition of “change affecting voting” or “change” is to clarify the definition of the benchmark standard, practice, or procedure. One commenter recommended we revise this section to reflect that the benchmark is the standard, practice, or procedure in force or effect at the time of the submission or the last legally enforceable standard, practice, or procedure in force or effect in the jurisdiction. We have concluded that no further revision of this section is warranted. The Voting Section's practice is to compare the proposed standard, practice, or procedure to the benchmark. Generally, the benchmark is the standard, practice, or procedure that has been: (1) Unchanged since the jurisdiction's coverage date; or (2) if changed since that date, found to comply with section 5 and “in force or effect.” Riley v. Kennedy, 553 U.S. 406, 421 (2008); Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, 28 CFR 51.54. Where there is an unsubmitted intervening change, the Attorney General will make no determination concerning the submitted change because of the prior unsubmitted change. In such instances, it is our practice to inform the jurisdiction there is a prior related change that has not been submitted and that simultaneous review is required. A standard, practice, or procedure that has been reviewed and determined to meet section 5 standards is considered to be in force or effect, even if the jurisdiction never implements the change because the change is effective as a matter of federal law and was available for use.

Section 51.3 Delegation of Authority

The purpose of the revisions to the delegation of authority is to make technical corrections to the delegation of authority from the Attorney General to the Assistant Attorney General, and from the Chief of the Voting Section to supervisory attorneys within the Voting Section, and to conform the Procedures to other parts of Title 28. Two commenters objected to the revisions, expressing concern that the delegation of the functions of the Chief to supervisory attorneys in the Voting Section results in the delegation of section 5 legal review authority to non-politically appointed attorneys subordinate to the Section Chief.Start Printed Page 21240

The concerns of these commenters are unfounded. The delegation of authority in these Procedures is similar to existing delegations. For example, pursuant to the appendix to 28 CFR Part 0, Subpart J, the Chief may authorize the Deputy Chief to act on his or her behalf. Moreover, under the revised Procedures, the Chief needs the concurrence of the Assistant Attorney General, who is a presidential appointee, to designate supervisory attorneys to perform section 5 functions. Accordingly, we decline to revise the section further.

Section 51.9 Computation of Time

The purpose of the revisions to this section is to clarify that the review period commences when a submission is received by the Department officials responsible for conducting section 5 reviews and to clarify the date of the response.

One commenter objected to the commencement of the 60-day review period upon receipt of the submission by the Voting Section or the Office of the Assistant Attorney General of the Civil Rights Division as an unwarranted extension of the 60-day review period. The Federal Rules of Civil Procedure provide for the designation of a Department clerical employee to receive summonses on behalf of the Attorney General. Fed. R. Civ. P. 4(i)(1)(A)(i). Similarly, and for the same purpose of prompt and efficient routing, the Attorney General has designated both the Voting Section and the Office of the Assistant Attorney General of the Civil Rights Division as the proper recipients for section 5 submissions.

The Department has made one additional edit to this section. As set forth in the Notice and as described below, a second paragraph is being added to § 51.37 (Obtaining information from the submitting authority). To ensure consistency, the reference to § 51.37, contained in previous versions of the Procedures, is amended to § 51.37(b),

Section 51.13 Examples of Changes

The purpose of this revision is to clarify that the dissolution or merger of voting districts, de facto elimination of an elected office, and reallocations of authority to adopt or administer voting practices or procedures are all subject to section 5 review.

One commenter suggested that we add the extension of a term of office for an elected official as an example of a covered change in paragraph (i). We concluded that including this example would provide additional clarity. To the extent that the extension of an elected official's term is a discretionary change that affects the next regularly scheduled election for that office, there is no question that it constitutes a “change affecting voting” covered by section 5. Additionally, extending the term of a particular office affects the ability of voters to elect candidates of choice at regularly scheduled intervals.

The commenter also suggested that paragraph (k), which provides that changes affecting the right or ability of persons to participate in “political campaigns” are covered under section 5, be expanded to include “campaigns or other pre-election activity.” We agreed that the phrase “political campaigns,” without any elaboration, may carry partisan connotations not envisioned by the statute. Additionally, “political campaigns” may not include all pre-election activity related to voting, and a somewhat broader construction is consistent with the broad scope given to “changes affecting voting” covered under section 5. Such changes include any “voting qualification or prerequisite to voting or standard, practice, or procedure” related to the right to vote, 42 U.S.C. 1973(a), and the Supreme Court has recognized that voting includes “all action necessary to make a vote effective.” Allen v. State Board of Elections, 393 U.S. 544, 566 (1969) (quoting 42 U.S.C. 1973l). As a result, section 5 coverage extends to “subtle, as well as the obvious,” changes affecting voting. Allen, 393 U.S. at 565.

Using the phrase “pre-election activity,” by itself, however, is too general and nebulous. As a result, we have revised the paragraph to reflect that any change affecting the right or ability of persons to participate in pre-election activity, such as political campaigns, is subject to review under section 5.

Another commenter objected to the inclusion of paragraph (l) as an example of changes affecting voting, stating that this change did not fall within the scope of section 5 coverage. A change in the voting-related authority of an official or governmental entity does alter election law and change rules governing voting. Thus, such changes meet the test of voting relatedness that is at the core of the Court's decision in Presley v. Etowah County Commission, 502 U.S. 491 (1992). In addition, a conclusion that such changes are not covered arguably would be inconsistent with the well-established rule that section 5 covers state enabling legislation that transfers authority to adopt a voting change from the state to its subjurisdictions. See Allen v. State Board of Elections, 393 U.S. 544 (1969) (holding that section 5 covered a Mississippi statute that granted county boards of supervisors the authority to change board elections from single-member districts to at-large voting).

Section 51.18 Federal Court-Ordered Changes

The purpose of the revisions to this section is to clarify the principle that section 5 review ordinarily should precede other forms of court review, that a court-ordered change that initially is not subject to section 5 may become covered through subsequent actions taken by the affected jurisdiction, and that the interim use of an covered change before it is established that such change complies with section 5 should be ordered by a court only in emergency circumstances.

One commenter opposed the changes contained in the section stating that the revisions appear to grant federal courts greater authority than the case law recognizes to implement voting changes that are subject to, but not yet reviewed under, section 5 on an emergency basis. Although that was not the intent of the revisions, we have modified § 51.18(a) to clarify that it reflects existing judicial precedent. After further consideration, we believe that, other than renumbering the paragraph as § 51.18(d), it is appropriate not to make any change to § 51.18(c) as it currently exists in the Procedures.

Section 51.28 Supplemental Contents

The proposed revision to paragraph (a) was omitted from the June 11, 2010, Notice of Proposed Rulemaking in error. The purpose of the revision is to make purely technical changes to the format in which information may be submitted to the Attorney General electronically. In addition, since the publication of the Notice, the Census Bureau has renamed the 15-character geographic identifier specified in paragraph (b); the final Procedures reflect this change in nomenclature.

Section 51.29 Communications Concerning Voting Changes

The purpose of the revisions to this section is to clarify the addresses and methods by which persons may provide written comments on section 5 submissions and to clarify the circumstances in which the Department may withhold the identity of those providing comments on section 5 submissions.

One commenter objected to the nondisclosure of the identity of an individual or entity where an assurance of confidentiality may reasonably be implied from the circumstances of the communication. The Department believes, however, that communications Start Printed Page 21241where confidentiality can reasonably be implied are within the scope of information that “could reasonably be expected to disclose the identity of a confidential source.” 5 U.S.C. 552(b)(7). Accordingly, this determination about confidentiality is within the scope of Section 552(b) concerning exemptions under both the Freedom of Information and the Privacy Acts.

Section 51.37 Obtaining Information From the Submitting Authority

The purpose of the revisions to this section is to clarify the procedures for the Attorney General to make oral and written requests for additional information regarding a section 5 submission.

One commenter recommended that we revise the paragraph concerning oral requests to make clear that the Attorney General reserves the authority to restart the 60-day review period upon receipt of material provided in response to the Attorney General's first such request made with respect to a submission, and that responses to an oral request do not affect the running of the 60-day period once a written request for information is made.

We declined to amend the proposed language regarding responses to an oral request because as the Procedures currently exist the Attorney General may request further information within the new 60-day period following the receipt of a response from the submitting authority to an earlier written request, but such a request shall not suspend the running the 60-day period, nor shall the Attorney General's receipt of such further information begin a new 60-day period. Moreover, § 51.39 provides that we may determine that information supplied in response to an oral request in the initial review period materially supplements the pending request such that it does extend the 60-day period.

We did conclude, however, on the basis of the comment that we received, that a reordering of the paragraphs would add clarity to the section and make it more useful.

Section 51.40 Failure To Complete Submissions

As described above, the paragraphs of § 51.37 are being reordered. To ensure consistency, the reference to § 51.37(a) in previous versions of the Procedures is amended to § 51.37(b).

Section 51.48 Decision After Reconsideration

The purpose of the revisions to this section is to clarify the manner in which the 60-day requirement applies to reconsideration requests and revise language to conform to the substantive section 5 standard in the 2006 amendments to the Act.

One commenter objected to the revisions in paragraph (a), expressing a concern that the revisions permit the Attorney General to exceed 60 days for the reconsideration of an objection. Section 51.48 provides that the 60-day reconsideration period may be extended to allow a 15-day decision period following a conference held pursuant to § 51.47. Moreover, the courts have held that when a submitting jurisdiction deems its initial submission on a reconsideration request to be inadequate and decides to supplement it, the 60-day period is commenced anew. The purpose of this interpretation is to provide the Attorney General time to give adequate consideration to materials submitted in piecemeal fashion. City of Rome v. United States, 446 U.S. 156, 171 (1980).

Section 51.50 Records Concerning Submissions

The purpose of the revision to this section is to clarify the procedures regarding access to section 5 records. One commenter opposed the changes to paragraph (b) and conveyed concerns that these changes will result in the removal of record keeping with regard to objection files.

Under paragraph (a), the Voting Section continues to maintain a section 5 file for each submission, including objection files. Accordingly, all appropriate records continue to be maintained with regard to all section 5 submissions.

Section 51.52 Basic Standard

The purpose of the revision to this section is to clarify the substantive standard so as to reflect the 2006 amendments to the Act and the manner in which the Attorney General will evaluate submissions under section 5.

One commenter suggested that paragraph (a) be amended further to reflect the fact that the Attorney General “shall apply the same standard of review,” instead of “shall make the same determination,” that would be made by a court in an action for a declaratory judgment under section 5. The section refers to making a “determination” as the activity that both the Attorney General and the district court undertake, i.e., deciding whether the change complies with section 5, as opposed to the resulting substantive decision. Therefore, we concluded that no further revision to the paragraph is warranted.

Another commentator suggested we replace “purpose and effect” with “purpose or effect” in paragraph (c). Although we decided not to incorporate the commentator's exact change, we did decide that further refinement of the paragraph would provide more clarity. Therefore, the paragraph will reflect that in those situations where the evidence as to the purpose or effect of the change is conflicting and the Attorney General is unable to determine that the change is free of both the prohibited discriminatory purpose and effect, the Attorney General will interpose an objection. Evers v. State Board of Election Commissioners, 327 F. Supp. 640 (S.D. Miss 1971).

Section 51.54 Discriminatory Purpose and Effect

One commenter suggested various minor edits to the proposed language. We declined to make these changes. The proposed language reflects our extensive experience gained over the years in our administrative review of section 5 changes, while avoiding redundancy.

We did edit the language of paragraph (c) to reflect that the statutory language refers to a change in a standard, practice, or procedure affecting voting, not only a practice or procedure.

Section 51.57(e) Relevant Factors

One commenter suggested that we include “contemporaneous statements and viewpoints held by decision-makers” in the list of relevant factors. Such statements are an evidentiary source cited by the Court in its opinion in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268 (1977), and therefore we have revised the section to reflect the Court's holding more completely.

Section 51.58(b)(2) Background Factors

One commenter suggested that this paragraph be revised to state that whether “election-related activities,” instead of “political activities,” are racially segregated or exclusionary constitutes important background information when making section 5 determinations. The proposed paragraph provided that the Attorney General will consider the “extent to which voting in the jurisdiction is racially polarized and political activities are racially segregated.” Courts in cases assessing whether the constitutional guarantees afforded to persons to exercise the franchise without discrimination have been infringed have often used the words “electoral” and “political” as synonyms for each other. See, e.g., Harper v. Virginia State Board of Elections, 383 U.S. 663, 667-68 Start Printed Page 21242(1966); see also Johnson v. Miller, 864 F. Supp. 1354, 1386-87 (S.D. Ga. 1994) (considering a claim under section 2 of the Voting Rights Act). These terms are similarly synonymous with respect to section 5, which also concerns the ability of voters to participate in the electoral process. After careful consideration of the comment, we determined that “election-related activities” provides greater clarity than “political activities” and revised the section accordingly.

Section 51.59 Redistricting Plans

Two commenters recommended various additions or deletions to paragraph 51.59(a). Because these factors are not intended to be exhaustive, not all factors are listed. Rather, the factors that are listed are illustrative, intended to provide guidance to jurisdictions regarding redistricting plans.

Other commenters suggested we delete or revise certain previously existing factors described in the paragraph. The Attorney General has, however, repeatedly cited factors identified in the section in past objection letters. Additionally, courts have cited “traditional redistricting principles,” such as preserving recognized communities of interest and maintaining political and geographical boundaries, as relevant factors in a section 5 analysis. Colleton County Council v. McConnell, 201 F. Supp. 2d 618, 647 (D.S.C. 2002) (citing S.C. State Conference of Branches of the NAACP v. Riley, 533 F. Supp. 1178, 1180 (D.S.C.), aff'd, 459 U.S. 1025 (1982)). See generally Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 FR 7470, 7472 (2011).

One commenter suggested we amend paragraph 51.59(a)(7) to focus on whether a proposed plan is inconsistent with the jurisdiction's “long-held” redistricting standards, instead of the jurisdiction's “stated standards.” The commenter believes that by adding the term “long-held,” jurisdictions will be discouraged from adopting ad hoc redistricting principles to insulate a redistricting plan during section 5 review. The current factors, particularly with regards to discriminatory purpose, encapsulate scenarios where a jurisdiction adopts pretextual or unusual redistricting criteria. The Procedures should not be interpreted to discourage jurisdictions from considering traditional redistricting principles such as one-person, one-vote, or maintaining natural political or geographic boundaries, even if they have not done so in the past. Bush v. Vera, 517 U.S. 952, 980-81 (1996). Therefore, we decline to revise these factors further.

Section 51.59(b) Discriminatory Purpose

Several commenters suggested this paragraph be revised in the interest of clarity. After reviewing the language, we agreed that it did not clearly reflect the relevant case law on this point and that some clarification would be helpful. We revised the paragraph accordingly.

Additional Provisions

One commenter suggested the addition of several provisions related to the substantive standards to be employed during the review of redistricting plans. The proposed revisions go beyond the scope of these Procedures.

Administrative Procedure Act

This rule amends interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice and therefore the notice requirement of 5 U.S.C. 553(b) is not mandatory. Although notice and comment was not required, we nonetheless chose to offer the proposed rule for notice and comment.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule and by approving it certifies that this rule will not have a significant economic impact on a substantial number of small entities because it applies only to governmental entities and jurisdictions that are already required by section 5 of the Voting Rights Act of 1965 to submit voting changes to the Department of Justice, and this rule does not change this requirement. It provides guidance to such entities to assist them in making the required submissions under section 5. Further, a Regulatory Flexibility Analysis was not required to be prepared for this rule because the Department of Justice was not required to publish a general notice of proposed rulemaking for this matter.

Executive Order 12866

This rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget. The amendments made by this rule clarify the scope of section 5 review based on recent amendments to section 5, make certain technical clarifications and updates, and provide better guidance to covered jurisdictions and citizens. In many instances, the amendments describe longstanding practices of the Attorney General in his review of section 5 submissions.

Executive Order 13132—Federalism

This rule does not have federalism implications warranting the preparation of a Federalism Assessment under section 6 of Executive Order 13132 because the rule does not alter or modify the existing statutory requirements of section 5 of the Voting Rights Act imposed on the States, including units of local government or political subdivisions of the States.

Executive Order 12988—Civil Justice Reform

This document meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

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List of Subjects in 28 CFR Parts 0 and 51

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Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301, 28 U.S.C. 509, 510, and 42 U.S.C. 1973b, 1973c, the following amendments are made to Chapter I of Title 28 of the Code of Federal Regulations:

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PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE

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1. The authority citation for Part 0 continues to read as follows:

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Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510.

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Subpart J—Civil Rights Division

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2. In § 0.50, revise paragraph (h) to read as follows:

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General functions.
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(h) Administration of sections 3(c) and 5 of the Voting Rights Act of 1965, as amended (42 U.S.C. 1973a(c), 1973c).

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PART 51—PROCEDURES FOR THE ADMINISTRATION OF SECTION 5 OF THE VOTING RIGHTS ACT OF 1965.

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3. The authority citation for Part 51 is revised to read as follows:

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Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, and 42 U.S.C. 1973b, 1973c.

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4. In § 51.1, revise paragraph (a)(1) to read as follows:

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Purpose.

(a) * * *

(1) A declaratory judgment is obtained from the U.S. District Court for the District of Columbia that such qualification, prerequisite, standard, practice, or procedure 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, or

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5. In § 51.2, revise the definition for “Act”; remove the definition of “Change affecting voting”; and add a new definition of “Change affecting voting or change” in alphabetical order to read as follows:

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Definitions.
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Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended by the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act, 84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400, the Voting Rights Act Amendments of 1982, 96 Stat. 131, the Voting Rights Language Assistance Act of 1992, 106 Stat. 921, the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577, and the Act to Revise the Short Title of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 122 Stat. 2428, 42 U.S.C. 1973 et seq. Section numbers, such as “section 14(c)(3),” refer to sections of the Act.

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Change affecting voting or change means any voting qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on the date used to determine coverage under section 4(b) or from the existing standard, practice, or procedure if it was subsequently altered and precleared under section 5. In assessing whether a change has a discriminatory purpose or effect, the comparison shall be with the standard, practice, or procedure in effect on the date used to determine coverage under section 4(b) or the most recent precleared standard, practice, or procedure. Some examples of changes affecting voting are given in § 51.13.

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6. Revise § 51.3 to read as follows:

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Delegation of authority.

The responsibility and authority for determinations under section 5 and section 3(c) have been delegated by the Attorney General to the Assistant Attorney General, Civil Rights Division. With the exception of objections and decisions following the reconsideration of objections, the Chief of the Voting Section is authorized to perform the functions of the Assistant Attorney General. With the concurrence of the Assistant Attorney General, the Chief of the Voting Section may designate supervisory attorneys in the Voting Section to perform the functions of the Chief.

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7. Revise § 51.5 to read as follows:

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Termination of coverage.

(a) Expiration. The requirements of section 5 will expire at the end of the twenty-five-year period following the effective date of the amendments made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, César E. Chávez, Barbara C. Jordan, William C. Velásquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of 2006 (VRARA), which amendments became effective on July 27, 2006. See section 4(a)(8) of the VRARA.

(b) Bailout. Any political subunit in a covered jurisdiction or a political subdivision of a covered State, a covered jurisdiction or a political subdivision of a covered State, or a covered State may terminate the application of section 5 (“bailout”) by obtaining the declaratory judgment described in section 4(a) of the Act.

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8. Revise § 51.6 to read as follows:

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Political subunits.

All political subunits within a covered jurisdiction (e.g., counties, cities, school districts) that have not terminated coverage by obtaining the declaratory judgment described in section 4(a) of the Act are subject to the requirements of section 5.

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9. Revise § 51.9 to read as follows:

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Computation of time.

(a) The Attorney General shall have 60 days in which to interpose an objection to a submitted change affecting voting for which a response on the merits is appropriate (see § 51.35, § 51.37).

(b) The 60-day period shall commence upon receipt of a submission by the Voting Section of the Department of Justice's Civil Rights Division or upon receipt of a submission by the Office of the Assistant Attorney General, Civil Rights Division, if the submission is properly marked as specified in § 51.24(f). The 60-day period shall recommence upon the receipt in like manner of a resubmission (see § 51.35), information provided in response to a written request for additional information (see § 51.37(b)), or material, supplemental information or a related submission (see § 51.39).

(c) The 60-day period shall mean 60 calendar days, with the day of receipt of the submission not counted, and with the 60th day ending at 11:59 p.m. Eastern Time of that day. If the final day of the period should fall on a Saturday, Sunday, or any day designated as a holiday by the President or Congress of the United States, or any other day that is not a day of regular business for the Department of Justice, the next full business day shall be counted as the final day of the 60-day period. The date of the Attorney General's response shall be the date on which it is transmitted to the submitting authority by any reasonable means, including placing it in a postbox of the U.S. Postal Service or a private mail carrier, sending it by telefacsimile, email, or other electronic means, or delivering it in person to a representative of the submitting authority.

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10. In § 51.10, revise paragraph (a) to read as follows:

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Requirement of action for declaratory judgment or submission to the Attorney General.
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(a) Obtain a judicial determination from the U.S. District Court for the District of Columbia that the voting 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.

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11. Revise § 51.11 to read as follows:

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Right to bring suit.

Submission to the Attorney General does not affect the right of the Start Printed Page 21244submitting authority to bring an action in the U.S. District Court for the District of Columbia for a declaratory judgment that the change affecting voting 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.

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12. Revise § 51.12 to read as follows:

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Scope of requirement.

Except as provided in § 51.18 (Federal court-ordered changes), the section 5 requirement applies to any change affecting voting, even though it appears to be minor or indirect, returns to a prior practice or procedure, seemingly expands voting rights, or is designed to remove the elements that caused the Attorney General to object to a prior submitted change. The scope of section 5 coverage is based on whether the generic category of changes affecting voting to which the change belongs (for example, the generic categories of changes listed in § 51.13) has the potential for discrimination. NAACP v. Hampton County Election Commission, 470 U.S. 166 (1985). The method by which a jurisdiction enacts or administers a change does not affect the requirement to comply with section 5, which applies to changes enacted or administered through the executive, legislative, or judicial branches.

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13. In § 51.13, revise paragraphs (e), (i), and (k) and add paragraph (l) to read as follows:

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Examples of changes.
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(e) Any change in the constituency of an official or the boundaries of a voting unit (e.g., through redistricting, annexation, deannexation, incorporation, dissolution, merger, reapportionment, changing to at-large elections from district elections, or changing to district elections from at-large elections).

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(i) Any change in the term of an elective office or an elected official, or any change in the offices that are elective (e.g., by shortening or extending the term of an office; changing from election to appointment; transferring authority from an elected to an appointed official that, in law or in fact, eliminates the elected official's office; or staggering the terms of offices).

* * * * *

(k) Any change affecting the right or ability of persons to participate in pre-election activities, such as political campaigns.

(l) Any change that transfers or alters the authority of any official or governmental entity regarding who may enact or seek to implement a voting qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting.

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14. Revise § 51.18 to read as follows:

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Federal court-ordered changes.

(a) In general. Changes affecting voting for which approval by a Federal court is required, or that are ordered by a Federal court, are exempt from section 5 review only where the Federal court prepared the change and the change has not been subsequently adopted or modified by the relevant governmental body. McDaniel v. Sanchez, 452 U.S. 130 (1981). (See also § 51.22.)

(b) Subsequent changes. Where a Federal court-ordered change is not itself subject to the preclearance requirement, subsequent changes necessitated by the court order but decided upon by the jurisdiction remain subject to preclearance. For example, voting precinct and polling changes made necessary by a court-ordered redistricting plan are subject to section 5 review.

(c) Alteration in section 5 status. Where a Federal court-ordered change at its inception is not subject to review under section 5, a subsequent action by the submitting authority demonstrating that the change reflects its policy choices (e.g., adoption or ratification of the change, or implementation in a manner not explicitly authorized by the court) will render the change subject to review under section 5 with regard to any future implementation.

(d) In emergencies. A Federal court's authorization of the emergency interim use without preclearance of a voting change does not exempt from section 5 review any use of that practice not explicitly authorized by the court.

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15. Revise § 51.19 to read as follows:

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Request for notification concerning voting litigation.

A jurisdiction subject to the preclearance requirements of section 5 that becomes involved in any litigation concerning voting is requested to notify the Chief, Voting Section, Civil Rights Division, at the addresses, telefacsimile number, or email address specified in §  51.24. Such notification will not be considered a submission under section 5.

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16. In § 51.20, revise paragraphs (b) through (e) and add a new paragraph (f) to read as follows:

End Amendment Part
Form of submissions.
* * * * *

(b) The Attorney General will accept certain machine readable data in the following electronic media: 3.5 inch 1.4 megabyte disk, compact disc read-only memory (CD-ROM) formatted to the ISO-9660/Joliet standard, or digital versatile disc read-only memory (DVD-ROM). Unless requested by the Attorney General, data provided on electronic media need not be provided in hard copy.

(c) All electronic media shall be clearly labeled with the following information:

(1) Submitting authority.

(2) Name, address, title, and telephone number of contact person.

(3) Date of submission cover letter.

(4) Statement identifying the voting change(s) involved in the submission.

(d) Each magnetic medium (floppy disk or tape) provided must be accompanied by a printed description of its contents, including an identification by name or location of each data file contained on the medium, a detailed record layout for each such file, a record count for each such file, and a full description of the magnetic medium format.

(e) Text documents should be provided in a standard American Standard Code for Information Interchange (ASCII) character code; documents with graphics and complex formatting should be provided in standard Portable Document Format (PDF). The label shall be affixed to each electronic medium, and the information included on the label shall also be contained in a documentation file on the electronic medium.

(f) All data files shall be provided in a delimited text file and must include a header row as the first row with a name for each field in the data set. A separate data dictionary file documenting the fields in the data set, the field separators or delimiters, and a description of each field, including whether the field is text, date, or numeric, enumerating all possible values is required; separators and delimiters should not also be used as data in the data set. Proprietary or commercial software system data files (e.g., SAS, SPSS, dBase, Lotus 1-2-3) and data files containing compressed data or binary data fields will not be accepted.

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17. Revise § 51.21 to read as follows:

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Time of submissions.

Changes affecting voting should be submitted as soon as possible after they become final, except as provided in § 51.22.

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18. Revise § 51.22 to read as follows:

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Start Printed Page 21245
Submitted changes that will not be reviewed.

(a) The Attorney General will not consider on the merits:

(1) Any proposal for a change submitted prior to final enactment or administrative decision except as provided in paragraph (b) of this section.

(2) Any submitted change directly related to another change that has not received section 5 preclearance if the Attorney General determines that the two changes cannot be substantively considered independently of one another.

(3) Any submitted change whose enforcement has ceased and been superseded by a standard, practice, or procedure that has received section 5 preclearance or that is otherwise legally enforceable under section 5.

(b) For any change requiring approval by referendum, by a State or Federal court, or by a Federal agency, the Attorney General may make a determination concerning the change prior to such approval if the change is not subject to alteration in the final approving action and if all other action necessary for approval has been taken. (See also § 51.18.)

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19. Revise § 51.23 to read as follows:

End Amendment Part
Party and jurisdiction responsible for making submissions.

(a) Changes affecting voting shall be submitted by the chief legal officer or other appropriate official of the submitting authority or by any other authorized person on behalf of the submitting authority. A State, whether partially or fully covered, has authority to submit any voting change on behalf of its covered jurisdictions and political subunits. Where a State is covered as a whole, State legislation or other changes undertaken or required by the State shall be submitted by the State (except that legislation of local applicability may be submitted by political subunits). Where a State is partially covered, changes of statewide application may be submitted by the State. Submissions from the State, rather than from the individual covered jurisdictions, would serve the State's interest in at least two important respects: first, the State is better able to explain to the Attorney General the purpose and effect of voting changes it enacts than are the individual covered jurisdictions; second, a single submission of the voting change on behalf of all of the covered jurisdictions would reduce the possibility that some State acts will be legally enforceable in some parts of the State but not in others.

(b) A change effected by a political party (see § 51.7) may be submitted by an appropriate official of the political party.

(c) A change affecting voting that results from a State court order should be submitted by the jurisdiction or entity that is to implement or administer the change (in the manner specified by paragraphs (a) and (b) of this section).

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20. Revise § 51.24 to read as follows:

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Delivery of submissions.

(a) Delivery by U.S. Postal Service. Submissions sent to the Attorney General by the U.S. Postal Service, including certified mail or express mail, shall be addressed to the Chief, Voting Section, Civil Rights Division, United States Department of Justice, Room 7254-NWB, 950 Pennsylvania Avenue, NW, Washington, DC 20530.

(b) Delivery by other carriers. Submissions sent to the Attorney General by carriers other than the U.S. Postal Service, including by hand delivery, should be addressed or may be delivered to the Chief, Voting Section, Civil Rights Division, United States Department of Justice, Room 7254-NWB, 1800 G Street, NW, Washington, DC 20006.

(c) Electronic submissions. Submissions may be delivered to the Attorney General through an electronic form available on the website of the Voting Section of the Civil Rights Division at www.justice.gov/​crt/​voting/​. Detailed instructions appear on the website. Jurisdictions should answer the questions appearing on the electronic form, and should attach documents as specified in the instructions accompanying the application.

(d) Telefacsimile submissions. In urgent circumstances, submissions may be delivered to the Attorney General by telefacsimile to (202) 616-9514. Submissions should not be sent to any other telefacsimile number at the Department of Justice. Submissions that are voluminous should not be sent by telefacsimile.

(e) Email. Submissions may not be delivered to the Attorney General by email in the first instance. However, after a submission is received by the Attorney General, a jurisdiction may supply additional information on that submission by email to vot1973c@usdoj.gov. The subject line of the email shall be identified with the Attorney General's file number for the submission (YYYY-NNNN), marked as “Additional Information,” and include the name of the jurisdiction.

(f) Special marking. The first page of the submission, and the envelope (if any), shall be clearly marked: “Submission under Section 5 of the Voting Rights Act.”

(g) The most current information on addresses for, and methods of making, section 5 submissions is available on the Voting Section website at www.justice.gov/​crt/​voting/​.

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21. In § 51.25, revise paragraph (a) to read as follows:

End Amendment Part
Withdrawal of submissions.

(a) A jurisdiction may withdraw a submission at any time prior to a final decision by the Attorney General. Notice of the withdrawal of a submission must be made in writing addressed to the Chief, Voting Section, Civil Rights Division, to be delivered at the addresses, telefacsimile number, or email address specified in § 51.24. The submission shall be deemed withdrawn upon the Attorney General's receipt of the notice.

* * * * *
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22. In § 51.27, revise paragraphs (a) through (d) to read as follows:

End Amendment Part
Required contents.
* * * * *

(a) A copy of any ordinance, enactment, order, or regulation embodying the change affecting voting for which section 5 preclearance is being requested.

(b) A copy of any ordinance, enactment, order, or regulation embodying the voting standard, practice, or procedure that is proposed to be repealed, amended, or otherwise changed.

(c) A statement that identifies with specificity each change affecting voting for which section 5 preclearance is being requested and that explains the difference between the submitted change and the prior law or practice. If the submitted change is a special referendum election and the subject of the referendum is a proposed change affecting voting, the submission should specify whether preclearance is being requested solely for the special election or for both the special election and the proposed change to be voted on in the referendum (see §§ 51.16, 51.22).

(d) The name, title, mailing address, and telephone number of the person making the submission. Where available, a telefacsimile number and an email address for the person making the submission also should be provided.

* * * * *
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23. In § 51.28, revise paragraph (a)(5), add (a)(6), and revise paragraph (c) to read as follows:

End Amendment Part
Supplemental contents.
* * * * *

(a) * * *

(5) Demographic data on electronic media that are provided in conjunction Start Printed Page 21246with a redistricting plan shall be contained in an ASCII, comma delimited block equivalency import file with two fields as detailed in the following table. A separate import file shall accompany each redistricting plan:

Field No.DescriptionTotal lengthComments
1PL94-171 reference number: GEOID1015
2District Number3No leading zeroes.

(i) Field 1: The PL 94-171/GEOID10 reference number is the state, county, tract, and block reference numbers concatenated together and padded with leading zeroes so as to create a 15-digit character field; and

(ii) Field 2: The district number is a 3 digit character field with no padded leading zeroes.

Example:

482979501002099,1 482979501002100,3 482979501004301,10 482975010004305,23 482975010004302,101

(6) Demographic data on magnetic media that are provided in conjunction with a redistricting can be provided in shapefile (.shp) spatial data format.

(i) The shapefile shall include at a minimum the main file, index file, and dBASE table.

(ii) The dBASE table shall contain a row for each census block. Each census block will be identified by the state, county, tract and block identifier [GEOID10] as specified by the Bureau of Census. Each row shall identify the district assignment and relevant population for that specific row.

(iii) The shapefile should include a projection file (.prj).

(iv) The shapefile should be sent in NAD 83 geographic projection. If another projection is used, it should be described fully.

* * * * *

(c) Annexations. For annexations, in addition to that information specified elsewhere, the following information:

(1) The present and expected future use of the annexed land (e.g., garden apartments, industrial park).

(2) An estimate of the expected population, by race and language group, when anticipated development, if any, is completed.

(3) A statement that all prior annexations (and deannexations) subject to the preclearance requirement have been submitted for review, or a statement that identifies all annexations (and deannexations) subject to the preclearance requirement that have not been submitted for review. See § 51.61(b).

(4) To the extent that the jurisdiction elects some or all members of its governing body from single-member districts, it should inform the Attorney General how the newly annexed territory will be incorporated into the existing election districts.

* * * * *
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24. In § 51.29, revise paragraphs (b) and (d) to read as follows:

End Amendment Part
Communications concerning voting changes.
* * * * *

(b) Comments should be sent to the Chief, Voting Section, Civil Rights Division, at the addresses, telefacsimile number, or email address specified in § 51.24. The first page and the envelope (if any) should be marked: “Comment under section 5 of the Voting Rights Act.” Comments should include, where available, the name of the jurisdiction and the Attorney General's file number (YYYY-NNNN) in the subject line.

* * * * *

(d) To the extent permitted by the Freedom of Information Act, 5 U.S.C. 552, the Attorney General shall not disclose to any person outside the Department of Justice the identity of any individual or entity providing information on a submission or the administration of section 5 where the individual or entity has requested confidentiality; an assurance of confidentiality may reasonably be implied from the circumstances of the communication; disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy under 5 U.S.C. 552; or disclosure is prohibited by any applicable provisions of federal law.

* * * * *
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25. Revise § 51.35 to read as follows:

End Amendment Part
Disposition of inappropriate submissions and resubmissions.

(a) When the Attorney General determines that a response on the merits of a submitted change is inappropriate, the Attorney General shall notify the submitting official in writing within the 60-day period that would have commenced for a determination on the merits and shall include an explanation of the reason why a response is not appropriate.

(b) Matters that are not appropriate for a merits response include:

(1) Changes that do not affect voting (see § 51.13);

(2) Standards, practices, or procedures that have not been changed (see §§ 51.4, 51.14);

(3) Changes that previously have received preclearance;

(4) Changes that affect voting but are not subject to the requirement of section 5 (see § 51.18);

(5) Changes that have been superseded or for which a determination is premature (see §§ 51.22, 51.61(b));

(6) Submissions by jurisdictions not subject to the preclearance requirement (see §§ 51.4, 51.5);

(7) Submissions by an inappropriate or unauthorized party or jurisdiction (see § 51.23); and

(8) Deficient submissions (see § 51.26(d)).

(c) Following such a notification by the Attorney General, a change shall be deemed resubmitted for section 5 review upon the Attorney General's receipt of a submission or other written information that renders the change appropriate for review on the merits (such as a notification from the submitting authority that a change previously determined to be premature has been formally adopted). Notice of the resubmission of a change affecting voting will be given to interested parties registered under § 51.32.

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26. Revise § 51.37 to read as follows:

End Amendment Part
Obtaining information from the submitting authority.

(a) Oral requests for information. (1) If a submission does not satisfy the requirements of § 51.27, the Attorney General may request orally any omitted information necessary for the evaluation of the submission. An oral request may be made at any time within the 60-day period, and the submitting authority should provide the requested information as promptly as possible. The oral request for information shall not suspend the running of the 60-day period, and the Attorney General will proceed to make a determination within the initial 60-day period. The Attorney General reserves the right as set forth in § 51.39, however, to commence a new 60-day period in which to make the requisite determination if the written information provided in response to such request materially supplements the submission.Start Printed Page 21247

(2) An oral request for information shall not limit the authority of the Attorney General to make a written request for information.

(3) The Attorney General will notify the submitting authority in writing when the 60-day period for a submission is recalculated from the Attorney General's receipt of written information provided in response to an oral request as described in § 51.37(a)(1), above.

(4) Notice of the Attorney General's receipt of written information pursuant to an oral request will be given to interested parties registered under § 51.32.

(b) Written requests for information. (1) If the Attorney General determines that a submission does not satisfy the requirements of § 51.27, the Attorney General may request in writing from the submitting authority any omitted information necessary for evaluation of the submission. Branch v. Smith, 538 U.S. 254 (2003); Georgia v. United States, 411 U.S. 526 (1973). This written request shall be made as promptly as possible within the original 60-day period or the new 60-day period described in § 51.39(a). The written request shall advise the jurisdiction that the submitted change remains unenforceable unless and until preclearance is obtained.

(2) A copy of the request shall be sent to any party who has commented on the submission or has requested notice of the Attorney General's action thereon.

(3) The Attorney General shall notify the submitting authority that a new 60-day period in which the Attorney General may interpose an objection shall commence upon the Attorney General's receipt of a response from the submitting authority that provides the information requested or states that the information is unavailable. The Attorney General can request further information in writing within the new 60-day period, but such a further request shall not suspend the running of the 60-day period, nor shall the Attorney General's receipt of such further information begin a new 60-day period.

(4) Where the response from the submitting authority neither provides the information requested nor states that such information is unavailable, the response shall not commence a new 60-day period. It is the practice of the Attorney General to notify the submitting authority that its response is incomplete and to provide such notification as soon as possible within the 60-day period that would have commenced had the response been complete. Where the response includes a portion of the available information that was requested, the Attorney General will reevaluate the submission to ascertain whether a determination on the merits may be made based upon the information provided. If a merits determination is appropriate, it is the practice of the Attorney General to make that determination within the new 60-day period that would have commenced had the response been complete. See § 51.40.

(5) If, after a request for further information is made pursuant to this section, the information requested by the Attorney General becomes available to the Attorney General from a source other than the submitting authority, the Attorney General shall promptly notify the submitting authority in writing, and the new 60-day period will commence the day after the information is received by the Attorney General.

(6) Notice of the written request for further information and the receipt of a response by the Attorney General will be given to interested parties registered under § 51.32.

Start Amendment Part

27. Revise § 51.39 to read as follows:

End Amendment Part
Supplemental information and related submissions.

(a)(1) Supplemental information. When a submitting authority, at its own instance, provides information during the 60-day period that the Attorney General determines materially supplements a pending submission, the 60-day period for the pending submission will be recalculated from the Attorney General's receipt of the supplemental information.

(2) Related submissions. When the Attorney General receives related submissions during the 60-day period for a submission that cannot be independently considered, the 60-day period for the first submission shall be recalculated from the Attorney General's receipt of the last related submission.

(b) The Attorney General will notify the submitting authority in writing when the 60-day period for a submission is recalculated due to the Attorney General's receipt of supplemental information or a related submission.

(c) Notice of the Attorney General's receipt of supplemental information or a related submission will be given to interested parties registered under § 51.32.

Start Amendment Part

28. Revise § 51.40 to read as follows:

End Amendment Part
Failure to complete submissions.

If after 60 days the submitting authority has not provided further information in response to a request made pursuant to § 51.37(b), the Attorney General, absent extenuating circumstances and consistent with the burden of proof under section 5 described in § 51.52(a) and (c), may object to the change, giving notice as specified in § 51.44.

Start Amendment Part

29. Revise § 51.42 to read as follows:

End Amendment Part
Failure of the Attorney General to respond.

It is the practice and intention of the Attorney General to respond in writing to each submission within the 60-day period. However, the failure of the Attorney General to make a written response within the 60-day period constitutes preclearance of the submitted change, provided that a 60-day review period had commenced after receipt by the Attorney General of a complete submission that is appropriate for a response on the merits. (See § 51.22, § 51.27, § 51.35.)

Start Amendment Part

30. Revise § 51.43 to read as follows:

End Amendment Part
Reexamination of decision not to object.

(a) After notification to the submitting authority of a decision not to interpose an objection to a submitted change affecting voting has been given, the Attorney General may reexamine the submission if, prior to the expiration of the 60-day period, information comes to the attention of the Attorney General that would otherwise require objection in accordance with section 5.

(b) In such circumstances, the Attorney General may by letter withdraw his decision not to interpose an objection and may by letter interpose an objection provisionally, in accordance with § 51.44, and advise the submitting authority that examination of the change in light of the newly raised issues will continue and that a final decision will be rendered as soon as possible.

Start Amendment Part

31. In § 51.44, revise paragraph (c) to read as follows:

End Amendment Part
Notification of decision to object.
* * * * *

(c) The submitting authority shall be advised further that notwithstanding the objection it may institute an action in the U.S. District Court for the District of Columbia for a declaratory judgment that the change objected to by the Attorney General 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.

* * * * *
Start Amendment Part

32. In § 51.46, revise paragraph (a) to read as follows:

End Amendment Part
Start Printed Page 21248
Reconsideration of objection at the instance of the Attorney General.

(a) Where there appears to have been a substantial change in operative fact or relevant law, or where it appears there may have been a misinterpretation of fact or mistake in the law, an objection may be reconsidered, if it is deemed appropriate, at the instance of the Attorney General.

* * * * *
Start Amendment Part

33. In § 51.48, revise paragraphs (a) through (d) to read as follows:

End Amendment Part
Decision after reconsideration.

(a) It is the practice of the Attorney General to notify the submitting authority of the decision to continue or withdraw an objection within a 60-day period following receipt of a reconsideration request or following notice given under § 51.46(b), except that this 60-day period shall be recommenced upon receipt of any documents or written information from the submitting authority that materially supplements the reconsideration review, irrespective of whether the submitting authority provides the documents or information at its own instance or pursuant to a request (written or oral) by the Attorney General. The 60-day reconsideration period may be extended to allow a 15-day decision period following a conference held pursuant to § 51.47. The 60-day reconsideration period shall be computed in the manner specified in § 51.9. Where the reconsideration is at the instance of the Attorney General, the first day of the period shall be the day after the notice required by § 51.46(b) is transmitted to the submitting authority. The reasons for the reconsideration decision shall be stated.

(b) The objection shall be withdrawn if the Attorney General is satisfied that the 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.

(c) If the objection is not withdrawn, the submitting authority shall be advised that notwithstanding the objection it may institute an action in the U.S. District Court for the District of Columbia for a declaratory judgment that the change objected to by the Attorney General 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.

(d) An objection remains in effect until either it is specifically withdrawn by the Attorney General or a declaratory judgment with respect to the change in question is entered by the U.S. District Court for the District of Columbia.

* * * * *
Start Amendment Part

34. Revise § 51.50 to read as follows:

End Amendment Part
Records concerning submissions.

(a) Section 5 files. The Attorney General shall maintain a section 5 file for each submission, containing the submission, related written materials, correspondence, memoranda, investigative reports, data provided on electronic media, notations concerning conferences with the submitting authority or any interested individual or group, and copies of letters from the Attorney General concerning the submission.

(b) Objection letters. The Attorney General shall maintain section 5 notification letters regarding decisions to interpose, continue, or withdraw an objection.

(c) Computer file. Records of all submissions and their dispositions by the Attorney General shall be electronically stored.

(d) Copies. The contents of the section 5 submission files in paper, microfiche, electronic, or other form shall be available for obtaining copies by the public, pursuant to written request directed to the Chief, Voting Section, Civil Rights Division, United States Department of Justice, Washington, DC. Such written request may be delivered to the addresses or telefacsimile number specified in §  51.24 or by electronic mail to Voting.Section@usdoj.gov. It is the Attorney General's intent and practice to expedite, to the extent possible, requests pertaining to pending submissions. Those who desire copies of information that has been provided on electronic media will be provided a copy of that information in the same form as it was received. Materials that are exempt from inspection under the Freedom of Information Act, 5 U.S.C. 552(b), may be withheld at the discretion of the Attorney General. The identity of any individual or entity that provided information to the Attorney General regarding the administration of section 5 shall be available only as provided by § 51.29(d). Applicable fees, if any, for the copying of the contents of these files are contained in the Department of Justice regulations implementing the Freedom of Information Act, 28 CFR 16.10.

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35. Revise § 51.52 to read as follows:

End Amendment Part
Basic standard.

(a) Surrogate for the court. Section 5 provides for submission of a voting change to the Attorney General as an alternative to the seeking of a declaratory judgment from the U.S. District Court for the District of Columbia. Therefore, the Attorney General shall make the same determination that would be made by the court in an action for a declaratory judgment under section 5: whether the submitted 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. The burden of proof is on a submitting authority when it submits a change to the Attorney General for preclearance, as it would be if the proposed change were the subject of a declaratory judgment action in the U.S. District Court for the District of Columbia. South Carolina v. Katzenbach, 383 U.S. 301, 328, 335 (1966).

(b) No objection. If the Attorney General determines that the submitted 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, no objection shall be interposed to the change.

(c) Objection. An objection shall be interposed to a submitted change if the Attorney General is unable to determine that the 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. This includes those situations where the evidence as to the purpose or effect of the change is conflicting and the Attorney General is unable to determine that the change is free of both the prohibited discriminatory purpose and effect.

Start Amendment Part

36. Revise § 51.54 to read as follows:

End Amendment Part
Discriminatory purpose and effect.

(a) Discriminatory purpose. A change affecting voting is considered to have a discriminatory purpose under section 5 if it is enacted or sought to be administered with any purpose of denying or abridging the right to vote on account of race, color, or membership in a language minority group. The term “purpose” in section 5 includes any discriminatory purpose. 42 U.S.C. 1973c. The Attorney General's evaluation of discriminatory purpose under section 5 is guided by the analysis in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).

(b) Discriminatory effect. A change affecting voting is considered to have a discriminatory effect under section 5 if it will lead to a retrogression in the position of members of a racial or language minority group (i.e., will make members of such a group worse off than Start Printed Page 21249they had been before the change) with respect to their effective exercise of the electoral franchise. Beer v. United States, 425 U.S. 130, 140-42 (1976).

(c) Benchmark. (1) In determining whether a submitted change is retrogressive the Attorney General will normally compare the submitted change to the voting standard, practice, or procedure in force or effect at the time of the submission. If the existing standard, practice, or procedure upon submission was not in effect on the jurisdiction's applicable date for coverage (specified in the Appendix) and is not otherwise legally enforceable under section 5, it cannot serve as a benchmark, and, except as provided in paragraph (c)(4) of this section, the comparison shall be with the last legally enforceable standard, practice, or procedure used by the jurisdiction.

(2) The Attorney General will make the comparison based on the conditions existing at the time of the submission.

(3) The implementation and use of an unprecleared voting change subject to section 5 review does not operate to make that unprecleared change a benchmark for any subsequent change submitted by the jurisdiction.

(4) Where at the time of submission of a change for section 5 review there exists no other lawful standard, practice, or procedure for use as a benchmark (e.g., where a newly incorporated college district selects a method of election) the Attorney General's determination will necessarily center on whether the submitted change was designed or adopted for the purpose of discriminating against members of racial or language minority groups.

(d) Protection of the ability to elect. Any change affecting voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race, color, or membership in a language minority group 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.

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37. In § 51.55, revise paragraph (a) to read as follows:

End Amendment Part
Consistency with constitutional and statutory requirements.

(a) Consideration in general. In making a determination under section 5, the Attorney General will consider whether the 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 in light of, and with particular attention being given to, the requirements of the 14th, 15th, and 24th Amendments to the Constitution, 42 U.S.C. 1971(a) and (b), sections 2, 4(a), 4(f)(2), 4(f)(4), 201, 203(c), and 208 of the Act, and other constitutional and statutory provisions designed to safeguard the right to vote from denial or abridgment on account of race, color, or membership in a language minority group.

* * * * *
Start Amendment Part

38. Revise § 51.57 to read as follows:

End Amendment Part
Relevant factors.

Among the factors the Attorney General will consider in making determinations with respect to the submitted changes affecting voting are the following:

(a) The extent to which a reasonable and legitimate justification for the change exists;

(b) The extent to which the jurisdiction followed objective guidelines and fair and conventional procedures in adopting the change;

(c) The extent to which the jurisdiction afforded members of racial and language minority groups an opportunity to participate in the decision to make the change;

(d) The extent to which the jurisdiction took the concerns of members of racial and language minority groups into account in making the change; and

(e) The factors set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977):

(1) Whether the impact of the official action bears more heavily on one race than another;

(2) The historical background of the decision;

(3) The specific sequence of events leading up to the decision;

(4) Whether there are departures from the normal procedural sequence;

(5) Whether there are substantive departures from the normal factors considered; and

(6) The legislative or administrative history, including contemporaneous statements made by the decision makers.

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39. In § 51.58, revise paragraph (b) to read as follows:

End Amendment Part
Representation.
* * * * *

(b) Background factors. In making determinations with respect to these changes involving voting practices and procedures, the Attorney General will consider as important background information the following factors:

(1) The extent to which minorities have been denied an equal opportunity to participate meaningfully in the political process in the jurisdiction.

(2) The extent to which voting in the jurisdiction is racially polarized and election-related activities are racially segregated.

(3) The extent to which the voter registration and election participation of minority voters have been adversely affected by present or past discrimination.

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40. Revise § 51.59 to read as follows:

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Redistricting plans.

(a) Relevant factors. In determining whether a submitted redistricting plan has a prohibited purpose or effect the Attorney General, in addition to the factors described above, will consider the following factors (among others):

(1) The extent to which malapportioned districts deny or abridge the right to vote of minority citizens;

(2) The extent to which minority voting strength is reduced by the proposed redistricting;

(3) The extent to which minority concentrations are fragmented among different districts;

(4) The extent to which minorities are over concentrated in one or more districts;

(5) The extent to which available alternative plans satisfying the jurisdiction's legitimate governmental interests were considered;

(6) The extent to which the plan departs from objective redistricting criteria set by the submitting jurisdiction, ignores other relevant factors such as compactness and contiguity, or displays a configuration that inexplicably disregards available natural or artificial boundaries; and

(7) The extent to which the plan is inconsistent with the jurisdiction's stated redistricting standards.

(b) Discriminatory purpose. A jurisdiction's failure to adopt the maximum possible number of majority-minority districts may not be the sole basis for determining that a jurisdiction was motivated by a discriminatory purpose.

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41. In § 51.61, revise paragraphs (a) and (b) to read as follows:

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Annexations and deannexations.

(a) Coverage. Annexations and deannexations, even of uninhabited land, are subject to section 5 preclearance to the extent that they alter or are calculated to alter the composition of a jurisdiction's electorate. See, e.g., City of Pleasant Grove v. United States, 479 U.S. 462 (1987). In analyzing annexations and deannexations under section 5, the Attorney General considers the purpose and effect of the annexations and Start Printed Page 21250deannexations only as they pertain to voting.

(b) Section 5 review. It is the practice of the Attorney General to review all of a jurisdiction's unprecleared annexations and deannexations together. See City of Pleasant Grove v. United States, C.A. No. 80-2589 (D.D.C. Oct. 7, 1981).

* * * * *
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42. Revise the Appendix to Part 51 to read as follows:

End Amendment Part Start Appendix

Appendix to Part 51—Jurisdictions Covered Under Section 4(b) of the Voting Rights Act, as Amended

The requirements of section 5 of the Voting Rights Act, as amended, apply in the following jurisdictions. The applicable date is the date that was used to determine coverage and the date after which changes affecting voting are subject to the preclearance requirement. Some jurisdictions, for example, Yuba County, California, are included more than once because they have been determined on more than one occasion to be covered under section 4(b).

JurisdictionApplicable dateFederal Register citation
Volume and pageDate
AlabamaNov. 1, 196430 FR 9897Aug. 7, 1965.
AlaskaNov. 1, 197240 FR 49422Oct. 22, 1975.
ArizonaNov. 1, 197240 FR 43746Sept. 23, 1975.
California:
Kings CountyNov. 1, 197240 FR 43746Sept. 23, 1975.
Merced CountyNov. 1, 197240 FR 43746Sept. 23, 1975.
Monterey CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Yuba CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Yuba CountyNov. 1, 197241 FR 784Jan. 5, 1976.
Florida:
Collier CountyNov. 1, 197241 FR 34329Aug. 13, 1976.
Hardee CountyNov. 1, 197240 FR 43746Sept. 23, 1975.
Hendry CountyNov. 1, 197241 FR 34329Aug. 13, 1976.
Hillsborough CountyNov. 1, 197240 FR 43746Sept. 23, 1975.
Monroe CountyNov. 1, 197240 FR 43746Sept. 23, 1975.
GeorgiaNov. 1, 196430 FR 9897Aug. 7, 1965.
LouisianaNov. 1, 196430 FR 9897Aug. 7, 1965.
Michigan:
Allegan County:
Clyde TownshipNov. 1, 197241 FR 34329Aug. 13, 1976.
Saginaw County:
Buena Vista TownshipNov. 1, 197241 FR 34329Aug. 13, 1976.
MississippiNov. 1, 196430 FR 9897Aug. 7, 1965.
New Hampshire:
Cheshire County:
Rindge TownNov. 1, 196839 FR 16912May 10, 1974.
Coos County:
Millsfield TownshipNov. 1, 196839 FR 16912May 10, 1974.
Pinkhams GrantNov. 1, 196839 FR 16912May 10, 1974
Stewartstown TownNov. 1, 196839 FR 16912May 10, 1974.
Stratford TownNov. 1, 196839 FR 16912May 10, 1974.
Grafton County:
Benton TownNov. 1, 196839 FR 16912May 10, 1974.
Hillsborough County:
Antrim TownNov. 1, 196839 FR 16912May 10, 1974.
Merrimack County:
Boscawen TownNov. 1, 196839 FR 16912May 10, 1974.
Rockingham County:
Newington TownNov. 1, 196839 FR 16912May 10, 1974.
Sullivan County:
Unity TownNov. 1, 196839 FR 16912May 10, 1974.
New York:
Bronx CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Bronx CountyNov. 1, 197240 FR 43746Sept. 23, 1975.
Kings CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Kings CountyNov. 1, 197240 FR 43746Sept. 23, 1975.
New York CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
North Carolina:
Anson CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Beaufort CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Bertie CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Bladen CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Camden CountyNov. 1, 196431 FR 3317Mar. 2, 1966.
Caswell CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Chowan CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Cleveland CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Craven CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Cumberland CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Edgecombe CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Franklin CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
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Gaston CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Gates CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Granville CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Greene CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Guilford CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Halifax CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Harnett CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Hertford CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Hoke CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Jackson CountyNov. 1, 197240 FR 49422Oct. 22, 1975.
Lee CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Lenoir CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Martin CountyNov. 1, 196431 FR 19Jan. 4, 1966.
Nash CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Northampton CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Onslow CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Pasquotank CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Perquimans CountyNov. 1, 196431 FR 3317Mar. 2, 1966.
Person CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Pitt CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Robeson CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Rockingham CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Scotland CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Union CountyNov. 1, 196431 FR 5081Mar. 29, 1966.
Vance CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Washington CountyNov. 1, 196431 FR 19Jan. 4, 1966.
Wayne CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
Wilson CountyNov. 1, 196430 FR 9897Aug. 7, 1965.
South CarolinaNov. 1, 196430 FR 9897Aug. 7, 1965.
South Dakota:
Shannon CountyNov. 1, 197241 FR 784Jan. 5, 1976.
Todd CountyNov. 1, 197241 FR 784Jan. 5, 1976.
TexasNov. 1, 197240 FR 43746Sept. 23, 1975.
VirginiaNov. 1, 196430 FR 9897Aug. 7, 1965.

The following political subdivisions in States subject to statewide coverage are also covered individually:

JurisdictionApplicable dateFederal Register citation
Volume and pageDate
Arizona:
Apache CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Apache CountyNov. 1, 197240 FR 49422Oct. 22, 1975.
Cochise CountyNov. 1, 196836 FR 5809Mar. 27, 1971
Coconino CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Coconino CountyNov. 1, 197240 FR 49422Oct. 22, 1975.
Mohave CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Navajo CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Navajo CountyNov. 1, 197240 FR 49422Oct. 22, 1975.
Pima CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Pinal CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Pinal CountyNov. 1, 197240 FR 49422Oct. 22, 1975.
Santa Cruz CountyNov. 1, 196836 FR 5809Mar. 27, 1971.
Yuma CountyNov. 1, 1964.31 FR 982Jan. 25, 1966.
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The Voting Section maintains a current list of those jurisdictions that have maintained successful declaratory judgments from the United States District Court for the District of Columbia pursuant to section 4 of the Act on its Web site at http://www.justice.gov/​crt/​voting.

End Appendix Start Signature

Dated: April 8, 2011.

Eric H. Holder, Jr.,

Attorney General.

End Signature End Supplemental Information

[FR Doc. 2011-9083 Filed 4-14-11; 8:45 am]

BILLING CODE 4410-13-P