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Election Procedures – Compliance with Federal Law

Election Procedures – Compliance with Federal Law. Ashley Fischer, Legal Director Office of the Secretary of State. Agenda. Overview of Voting Rights Act Status of Preclearance Key Provisions of the VRA and Case Law Key Things to Consider in Elections. Voting Rights Act of 1965.

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Election Procedures – Compliance with Federal Law

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  1. Election Procedures – Compliance with Federal Law Ashley Fischer, Legal Director Office of the Secretary of State Texas Secretary of State Elections Division

  2. Agenda • Overview of Voting Rights Act • Status of Preclearance • Key Provisions of the VRA and Case Law • Key Things to Consider in Elections Texas Secretary of State Elections Division

  3. Voting Rights Act of 1965 • Signed by President Johnson in August 1965. • Prohibits discrimination in voting. • Reauthorized in 1970, 1975, 1982, 1992, and 2006. Texas Secretary of State Elections Division

  4. Americans with Disabilities Act of 1990 • Signed by President Bush in July 1990. • Requires polling places to be accessible for all voters. Texas Secretary of State Elections Division

  5. Voting Rights Act and Texas • Section 4 of the VRA only applied to certain jurisdictions. • In 1975, Texas became a “covered jurisdiction” under the coverage formula in Section 4 of the Voting Rights Act (VRA). • Section 5 of the VRA required all political subdivisions in Texas to seek preclearance from the Department of Justice (DOJ) before implementing any changes in voting practices or procedures. Texas Secretary of State Elections Division

  6. Shelby County v. Holder • On June 25, 2013, the U.S. Supreme Court issued its ruling in Shelby County v. Holder, deciding that Section 4 of the Voting Rights Act of 1965 is unconstitutional. • So, what does that mean for us? Texas Secretary of State Elections Division

  7. Status of Preclearance Requirement • After the Shelby County v. Holder decision, political subdivisions no longer have to submit preclearance requests to the DOJ, but… Texas Secretary of State Elections Division

  8. REMEMBER! • Before making any changes in election standards, practices or procedures think about compliance with federal and state law!!! Texas Secretary of State Elections Division

  9. Current Events • Congress may pass a new coverage formula. • Pending litigation on Texas’ status under VRA. We will notify political subdivisions of any changes via email and our website. Texas Secretary of State Elections Division

  10. Key Provisions of the VRA • Section 2 • Section 11(b) • Section 203 • Section 208 Texas Secretary of State Elections Division

  11. VRA Enforcement • The Department of Justice may enforce the VRA through suit in federal court. The DOJ may seek a settlement agreement outside of the court system. • Private individuals and groups may also seek enforcement of the VRAthrough the courts. Texas Secretary of State Elections Division

  12. Section 2 • “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color….” Texas Secretary of State Elections Division

  13. Section 2- Overarching Principles • Voting history. • History of discrimination within political subdivision. • Racial polarization in voting. • Dilution of minority voting strength by procedure change. • Numerosity and geographical compactness of minority population. • Equal opportunity for all voters. • One person/one vote. Texas Secretary of State Elections Division

  14. U.S. v. Town of Lake Park, FL Complaint: • City Commission consisted of 4 at-large elected positions. • Census Data = 53% white, 48% black within the town. • Voting History = Polarized - voters generally vote as a bloc by race. • Since the town’s incorporation, a black candidate had never been elected. • Minority population was numerous and geographically compact. • Socioeconomic disparities existed. Texas Secretary of State Elections Division

  15. U.S. v. Town of Lake Park, FL Consent Decree: • Discontinuance of at-large system, replaced by limited voting plan with four Commissioners being elected to concurrent terms. Texas Secretary of State Elections Division

  16. Section 11(b) • “No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 1973a(a), 1973d, 1973f, 1973g, 1973h, or 1973j(e) of this title.” Texas Secretary of State Elections Division

  17. Section 203 • Requires voting materials to be translated if a certain amount of the population is a single language minority or limited-English proficient. • “Voting Materials” = ballots, documents for registration, voting notices, forms, instructions, assistance, or other materials related to the electoral process. Texas Secretary of State Elections Division

  18. Section 203 Texas is a covered jurisdiction! Texas Secretary of State Elections Division

  19. United States v. Colfax County, NE Complaint: • Census Data = County’s Population = 33.3% Hispanic and 68% of the Hispanic population was limited-English proficient. • Colfax County was covered under Section 203. • The County did NOT translate and disseminate election-related information in Spanish. Texas Secretary of State Elections Division

  20. United States v. Colfax County, NE Consent Decree: • County required to translate voting materials and use certified translator. • County required to ensure that local political subdivisions that contract with County translate materials. • County required to seek assistance from organizations that serve Spanish-speaking citizens. • The hiring of bilingual election officials required. • Training of election officials. Texas Secretary of State Elections Division

  21. Section 208 • Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union. Texas Secretary of State Elections Division

  22. U.S. v. City of Springfield, MA Complaint: • City prohibited assistors of their choice from providing assistance to Spanish-speaking voters. • City failed to “accurately and adequately” instruct poll workers on their duty to allow voters assistance from a person of their choice. Texas Secretary of State Elections Division

  23. U.S. v. City of Springfield, MA Settlement Order: • City to ensure that Spanish-speaking voters are permitted assistance. • City to alert voters that Spanish-speaking poll workers are available to provide assistance. • Federal observers present at elections. • Requirement to send all information on complaints to DOJ. Texas Secretary of State Elections Division

  24. Similar State Laws • § 61.008 – Prohibits unlawful influence of a voter. • § 61.032 – Allows interpreters in polling places. • § 43.034 – Requires polling places to be accessible. • Chapter 272 – Requires bilingual election materials. • § 36.02 and 36.03 of Penal Code – Prohibits bribery or coercion of a voter. Texas Secretary of State Elections Division

  25. Key Things to Think About • Translation of Documents • Interpreter Services • Accessibility of Polling Places • Location of Polling Places Texas Secretary of State Elections Division

  26. Other Issues • Redistricting • Annexation/Incorporation • Changes to Method of Election • Changes to Candidate Qualifications Texas Secretary of State Elections Division

  27. Other Issues, cont. • Changes to Precinct Boundaries • Consolidation of Precincts • Voting Methods • Rescheduling Elections • Cancelling Elections Texas Secretary of State Elections Division

  28. Tips • Consult with your entity’s attorney on federal and state law requirements if you have questions. Your attorney knows the laws that govern your political subdivision and your community. • You may also contact the SOS if you have questions. Texas Secretary of State Elections Division

  29. Translation of Written Documents • Required under federal and state law. • Create election materials in Spanish and English: • Ballots • Election Orders, Notices, etc. • Use SOS prescribed forms in Spanish and English. • Voting Instructions • Statement of Residence Forms, etc. • Unwritten Language Translation Texas Secretary of State Elections Division

  30. Bilingual Election Officials • Obligation to assist minority language voters. • SOS recommends appointing at least 1 bilingual clerk in every precinct in which 5% or more of voters have a Spanish-surname. Texas Secretary of State Elections Division

  31. Interpreters • Under state law, a voter may communicate through an interpreter of their choice. • Interpreter must be registered voter of the county in which voter resides. • Interpreter must take oath. Texas Secretary of State Elections Division

  32. Tips • Survey current group of volunteers for Spanish speakers. • Conduct outreach within the Spanish-speaking community. • Reach out within the community to determine polling places that need bilingual officials. Texas Secretary of State Elections Division

  33. Polling Places • All polling places must be accessible to the physically disabled and elderly, without exception. § 43.034 Texas Secretary of State Elections Division

  34. Note • DOJ enforces compliance with ADA. • The DOJ may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under title III of the ADA, the DOJ may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation. • Private individuals may bring suit to enforce compliance with the ADA. Texas Secretary of State Elections Division

  35. Polling Places • The selection or relocation of polling places must not have a discriminatory purpose or effect. Texas Secretary of State Elections Division

  36. Tips • Use ADA checklist. • Location of polling places must serve the whole population. Texas Secretary of State Elections Division

  37. Non-Compliance • What happens if we don’t comply? • Federal Inspectors • Action by U.S. Department of Justice • Action by Texas Attorney General • Action by private citizens Texas Secretary of State Elections Division

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