In Legal Terms
- Volume 52, Number 1 - 2008
The importance of preclearance...
There are so many details to remember in county government, and unfortunately some slip through the cracks from time to time.
One detail much too important to forget or ignore is the requirement under Section 5 of the Voting Rights Act to seek preclearance from the U.S. Justice Department before implementing any change in law, policy, or practice that will or may affect voting in any way.
It would be impossible to provide a detailed explanation of the “hows and whys” of preclearance in the space available for this article, so I will not attempt that feat.
However, an overview of the requirement and its implications may be useful in helping counties to remember this important step in making changes to voting laws or policies and making sure that preclearance is included in the long “to do” list of administering county government.
Preclearance is a federal requirement that certain jurisdictions, including Alabama and all of its political subdivisions, obtain “approval” from the U.S. Justice Department before implementing any change to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U.S.C. Section 1973c, Section 5.
The purpose of preclearance is to determine that the proposed change does not have “the purpose nor will it have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. Section 1973c, Section 5.
“Approval” is really the wrong term to use in describing preclearance. Actually, the Justice Department reviews the preclearance submission, and if it finds no discriminatory effect, will issue a letter “interpos[ing] no objection to a submitted change affecting voting.” 28 C.F.R. § 51.41. This does not eliminate the possibility of a legal challenge to the change based upon some allegation of its discriminatory purpose or effect, but does allow the submitting authority to proceed with implementation of the proposed change.
This federal statutory requirement for preclearance is applied very broadly, meaning that virtually anything that affects voting must be precleared.
Examples would include a new statute establishing residency requirements for serving in a particular public office, a change in the makeup of the county commission, a redistricting or change in voting precincts, an annexation, or even the setting of a date for an election.
This means that counties must include preclearance in its “things to do” list whenever it proposes any local change relating to voting or elections in any way. It also means that a county should take no steps to implement a general law change until notified that the new general law has been precleared.
While the Alabama Attorney General’s Office is responsible for preclearing general acts of the legislature, the obligation for preclearance of local acts or local policy changes usually falls to the county commission.
The AG’s Office will offer advice – and has an excellent memo to guide the county through the submission process – but the county commission (and the county attorney) should be constantly alert to this requirement, and should ensure that this process is completed before implementation of any change.
It is important to keep in mind that the Justice Department generally has 60 days from the date of a preclearance submission to issue its decision, and the failure to respond within 60 days constitutes preclearance of the submitted change.
The Justice Department can extend the time for consideration of a preclearance submission if it requests additional information, and there is a possibility for expedited approval under emergency circumstances, such as the destruction of a polling place three weeks before an election.
Counties should be very careful to calculate this 60-day time period in developing any changes that would require preclearance. Additionally, counties should be careful to make complete and thorough submissions to avoid having the Justice Department extend the time frame for consideration because of a request for additional information.
So, what happens if the proposed change is not submitted for preclearance?
While there are no generally specific penalties or sanctions imposed against a jurisdiction for its failure to obtain preclearance, any change implemented without preclearance is subject to challenge on preclearance grounds – and may cause serious problems for the entity for years to come.
The Justice Department has the authority to enforce the Act and may file for injunction against a jurisdiction to prevent implementation of a change without proper preclearance. Additionally, individual citizens may bring suit challenging a change that has not been precleared.
Obviously, these contingencies leave counties in a precarious situation regarding implementation of any change that has not been precleared. Actions taken – such as the election of county commissioners from districts that have not been precleared – will always be subject to challenge, thus bringing to question the validity and finality of the election outcome.
Clearly, preclearance is vitally important, with serious and lasting implications if not properly obtained.
I suspect that if counties checked all their old voting changes, there would be many discoveries of actions that were not properly precleared. No one is suggesting that that review be done. But, counties should be diligent in submitting all upcoming and future voting changes for preclearance in a timely and proper manner. And, counties should never implement a state or local law change until notified that it has received preclearance from the Justice Department.
When in doubt, consult with your county attorney, or ACCA staff attorney, about whether preclearance is required. And as mentioned above, you can always contact the AG’s Office for assistance in how to proceed.
On that note, I would be remiss if I did not give credit and many thanks to Assistant Attorney General Misty Fairbanks, whose excellent preclearance presentation at a recent continuing legal education seminar provided both the inspiration and research for this article. Thank you, Misty!
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