Lawyers' Committee for Civil Rights Under Law
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Section 5 of the Voting Rights Act

Section 5 of the Voting Rights Act is the first line of defense against laws or practices that have the purpose or will have the effect of discriminating against racial, ethnic, or language minorities protected by the Voting Rights Act. When any "covered" jurisdiction adopts a change in voting procedure or practice, the jurisdiction must submit the change to the Department of Justice for "preclearance" before the change can take effect. The Department has 60 days to review the matter. If the Department objects, then the change cannot be enforced by the jurisdiction. 42 U.S.C. § 1973c. Currently, Section 5 covers the States of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. Portions of the following States are also covered: California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.

The Voting Rights Project monitors administrative submissions by these States and their political subdivisions so that we may comment on the changes being contemplated. If we believe the proposed change to be discriminatory, we attempt to gather the evidence necessary to convince the Department of Justice to object to the change.

Alternatively, the jurisdiction may bring a declaratory judgment action in the U.S. District Court for the District of Columbia seeking preclearance. The Voting Rights Project has intervened in several such cases over the years to object to preclearance.

Jurisdictions are not always diligent about making submissions. If clients contact us about a voting-related issue, we always check to see if the jurisdiction is covered by Section 5 and, if so, whether the jurisdiction submitted the particular provision for preclearance. If the jurisdiction did not obtain preclearance, affected citizens may bring suit in the local U.S. District Court to enjoin enforcement until preclearance has been obtained.

Alabama's Absentee Voting Law
On October 13, 1998, the Voting Rights Project filed suit in federal court in Alabama seeking an injunction against the enforcement of a new provision of the absentee voter law. The new provision prohibits the absentee ballot manager from mailing an absentee ballot to General Delivery or a post office box, even if that is the only place the voter receives his or her mail. Alabama had made a submission of this law but had not complied with the requirement of pointing out the particular changes it wished to be precleared. On October 21, the three-judge court entered the injunction. (The State amended its absentee voting law in 1999 to delete the provision attacked in this suit.) The Voting Rights Project staff was joined by Larry Menefee (Montgomery AL), James U. Blacksher (Birmingham AL), and J. Gerald Hebert (Alexandria VA). Ward v. State of Alabama, 31 F.Supp.2d 968 (M.D. Ala. 1998) (3-judge court).

Bossier Parish (LA) School Board
This case has been pending most of the decade. In 1994 the Bossier Parish School Board brought a declaratory judgment action in the U.S. District Court for the District of Columbia seeking preclearance of its redistricting plan (after unsuccessfully seeking administrative preclearance). Several black citizens of the Parish, represented by the Voting Rights Project, intervened as defendants (along with the Attorney General) to object to preclearance. The District Court eventually granted preclearance. Both the Attorney General and the private intervenors appealed to the Supreme Court. Although the Supreme Court held that preclearance under Section 5 of the Voting Rights Act may not be denied solely on the basis of a violation of Section 2 of the Act, it remanded for a consideration by the District Court of any Section 2-type evidence that might be relevant to the Section 5 question: whether the change has the purpose or effect of discriminating against racial minorities. Reno v. Bossier Parish School Board, __ U.S. 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997).

After the remand to the District Court, we and the Justice Department presented evidence that the Bossier Parish School Board adopted its plan with no minority districts after the local NAACP suggested a plan with two majority- minority districts. We argued that this demonstrated a discriminatory intent.

On May 1, 1998, the District Court for the District of Columbia entered a declaratory judgment that Bossier Parish School Board's 1992 redistricting plan did not have the purpose or effect of discriminating against black voters. The District Court had refused to credit any evidence presented by the United States or the Price intervenors (the Lawyers' Committee's clients) regarding the Board's the general intent to discriminate against blacks, but held that there was not sufficient evidence of an "intent to retrogress," that is a specific intent to reduce black representation on the Parish School Board (which was already zero). Bossier Parish School Board v. Reno, 7 F.Supp.2d 29 (D DC 1998) (3-judge court). Both Price and the United States appealed a second time.

On January 22, 1999, the Supreme Court noted probable jurisdiction in two cases, Price v. Bossier Parish School Board, No. 98-406, and Reno v. Bossier Parish School Board, No. 98-405, and heard arguments in April. On June 24, 1999, the Supreme Court set the two cases for reargument next Term and ordered the parties to submit additional briefs on the burden of proof. The case was reargued on October 6, 1999. On January 24, 2000, the Supreme Court held that "§ 5 does not prohibit preclearance of a redistricting plan enacted with a discriminatory but non-retrogressive purpose." Reno v. Bossier Parrish School Board, No. 98-405. Working on the case with Project staff are John Borkowski of Hogan & Hartson (New Orleans LA) and Patricia Brannan of Hogan & Hartson (Washington DC).

The Voting Rights Project is very disappointed in this outcome. Voting Rights Project Director Edward Still made this assessment of this case after its argument but before the decision: 'If we lose this case, the scope of Section 5 will be narrowed, and stopping discriminatory voting changes in advance of their implementation will be more difficult. If we win, Section 5 will continue to be an effective tool to block discriminatory election law's. Unfortunately, we now have to see whether Still was correct in his prediction.

For the full text of these decisions, click on these links for the January 2000 decision and for the 1997 decision.

Monterey County, CA
The Supreme Court issued an opinion clarifying the effect of the 1965 Voting Rights Act in (partially covered) states on January 20, 1999. In a case handled by the Lawyers' Committee for Civil Rights of the San Francisco Bay Area and Joaquin Avila of Milpitas CA, the Court held that the Act's preclearance requirements apply to statutes or regulations adopted by noncovered states to the extent that these measures will effect a voting change in a covered county. Lopez v. Monterey County, __ U.S. __, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999). This decision confirms the earlier interpretation of the Act by the Justice Department and closes a potential loophole in the Act's coverage. The Lawyer's Committee is proud to have provided assistance to the San Francisco Lawyer's Committee on this case.

Virginia¹s Section 5 Suit on Sampled Census Data
On June 28, 2000, the Voting Rights Project on behalf of the Virginia State Conference of the NAACP and a group of Virginia voters, filed a motion to intervene in a suit brought by the Commonwealth of Virginia. Virginia has adopted an act which forbids the use of adjusted census data in its congressional and legislative redistricting. Virginia filed suit in the United States District Court for the District of Columbia against the U.S. Attorney General seeking a declaratory judgment that its new act was not adopted with a retrogressive purpose and will not have a retrogressive effect and that there is no change in Virginia's voting practices because it will continue its past practice of using unadjusted data (which is all that was provided by the Census Bureau in the past). The Commonwealth also contended in its suit that the Constitution forbids the use of sampled data. The district court granted the United States' motion to dismiss on the grounds that the controversy was not ripe for adjudication on October 18, 2000. The Voting Rights Project and its co-counsel, Marc K. Temin and Verne W. Vance, Jr., of Foley Hoag & Eliot LLP (Boston), took the lead in preparing an opposition to this motion on December 6 on behalf of their own clients and three other groups of intervenors. On January 8, 2001, the U.S. Supreme Court summarily affirmed. Comm. of Virginia v. Janet Reno, 117 F.Supp.2d 46 (D.D.C. 2000), aff'd ___ U.S. ___, 69 U.S.L.W. 3455 (Jan. 8, 2001).

Alabaster (AL) City Council Election
On December 29, 2000, the Voting Rights Project and Samuel T. Reaves, Kennedy Covington Lobdell & Hickman LLP (Charlotte, NC), filed their brief in the Alabama Supreme Court on behalf of the winner of a city council election in Alabaster, AL. On October 22, a state judge had dismissed an election contest in which the Voting Rights Project represented the winning candidate. The Project asserted the defense that the challenging voters were prevented from voting because of the failure of the city to obtain preclearance. Alabaster, Alabama, annexed a subdivision and sought preclearance for both the annexation and a redistricting of city council districts to attach this white residential area to the only majority-black district. The U.S. Department of Justice objected to the redistricting because of the retrogressive effect on the black majority district. After the objection, the city allowed the residents of the new area to vote for mayor and to cast ballots for council, but did not include these votes in the final tally for the council race. The black incumbent (Bobby Lee Harris) won against a white challenger by 39 votes. Since all 93 (untallied) votes of the new area residents were for the white challenger, he would have defeated Mr. Harris. Brenda O. Singer v. City of Alabaster, CV 00-850 (Shelby Co AL Cir Ct), No. 1000093 (Ala. Sup. Ct.).

Section 2 of the Voting Rights Act

Section 2 of the Voting Rights Act applies nationwide. It provides, "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 abridgment of the right of any citizen of the United States to vote on account of race or color, or [because of membership in certain language minority groups.]" 42 U.S.C. ß 1973. This provision was broadened in 1982 and has become the mainstay of voting rights litigation. The Voting Rights Project and other voting rights litigators have used this provision to attack at-large elections for state legislatures and local government bodies and to attack various discriminatory election practices. Over the last few years, our particular emphasis has been the elimination of at-large elections for judges where the adoption of single-member districts or some alternative election system would empower black voters to elect judges of their choice.

Milwaukee Judicial Elections
In Milwaukee Branch of NAACP v. Thompson, we challenged the at-large method of electing trial and appellate judges in Milwaukee County, Wisconsin. The trial court and the Seventh Circuit ruled against our claims on the grounds that we had failed to show sufficient discriminatory voting patterns and also because "the Voting Rights Act does not compel a state to disregard a belief that larger jurisdictions promote impartial administration of justice, if that belief is sincerely held." On January 20, 1998, the Supreme Court denied certiorari. Milwaukee Branch of NAACP v. Thompson, 116 F.3d 1194 (7th Cir. 1997), cert. denied __ U.S. __, 118 S.Ct. 853, 139 L.Ed.2d 753 (1998). Board member and former Voting Rights Project Director Brenda Wright of Boston, Massachusetts, former Project staff attorney Todd Cox (now at NAACP Legal Defense & Educational Fund), and Board member Richard Saks of Perry, Lerner & Quindel, Milwaukee, Wisconsin, were co-counsel with Project staff.

Leon County (FL) Judicial Elections
The Voting Rights Project had brought two similar judicial election cases in Florida, Nipper v. Smith in Duval County and Davis v. Chiles in Leon County. Nipper moved through the courts more quickly and we lost that case in 1994. Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc). Prior to the Nipper decision, the district court hearing the Davis case held that plaintiffs had proven that the at- large election system for judges was discriminatory and was allowing the State time to propose a remedy. After Nipper, the judge ruled that we could obtain no relief. On appeal, the Eleventh Circuit held (on April 30, 1998) that plaintiffs who have proven that at-large judicial elections violate Section 2 of the Voting Rights Act may not obtain relief if the State's interest in maintaining its at-large system outweighs the plaintiffs interest in the adoption of their proposed remedy. Davis v. Chiles, 139 F.3d 1414 (11th Cir.). The panel acknowledged that Davis has presented persuasive evidence of racially polarized voting in elections for judgeships...,î but held the prior en banc decision in Nipper forecloses any remedy. The case was argued in the Eleventh Circuit by Board member and former Voting Rights Project Director Brenda Wright, and with her on the brief were Mitchell F. Dolin of Covington & Burling, George Drumming, Jr., of Tallahassee FL, and Board member Robert McDuff of Jackson MS. We sought review in the Supreme Court. In November 1998, the Supreme Court requested the views of the United States, and the Solicitor General had supported the plaintiffs position. Despite this support from the United States, the Court denied Certiorari. Davis v. Bush, __ U.S. __, 119 S.Ct. 1139, 143 L.Ed.2d 208 (1999). This denial of cert means that the law of the Eleventh Circuit remains as described in Judge Birchis decision, In this Circuit, Section Two of the Voting Rights Act cannot be said to apply, in any meaningful way, to at-large judicial elections.

Gainesville (GA) City Council
Black voters in Gainesville GA allege that the at-large method for electing city council members dilutes minority voting strength in violation of Section 2 of the Voting Rights Act and has been maintained for a racially discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments. After trial, the Voting Rights Project was asked to help with the appeal. We were successful in having the first decision vacated. On June 10, 1998, the United States District Court for the Northern District of Georgia ruled in favor of the Voting Rights Projects clients who were challenging the at-large method for electing city council members. The appellate court remanded, on November 19, 1999, the suit for additional fact-finding on one issue, while affirming most of the findings of the District Court. On February 15, 2000, the Northern District of Georgia denied the Voting Rights Projects request for an injunction to prevent a hastily called special election after a remand from the Eleventh Circuit. The Project staff, John M. Clark (Elberton GA), and Willie J. Woodruff, Jr. (Toccoa GA) are now preparing for further proceedings on remand. Johnson v. Hamrick, No. 98-8896 (11th Cir).

Ex-Felon Re-enfranchisement
In response to The Sentencing Project's report on felon disenfranchisement (Losing the Vote), the Washington Bureau of the NAACP brought representatives from various civil and human rights organizations and congressional staff together to discuss developing federal legislation to address the large number of citizens who are affected by felon disenfranchisement laws. In early 1999, this group, which included representatives from the Lawyers' Committee, NAACP Legal Defense Fund, and the ACLU, decided to revise Congressman John Conyer's 1998,Voting Rights of Former Offenders Act, which sought the enfranchisement of all former offenders who were no longer imprisoned in a correctional institution at the time of an election. With our assistance, a new bill was drafted and introduced in the House.

This is a very important issue. Our assistance could help this legislation pass constitutional muster. If passed this Act could allow a large number of people, who are no longer incarcerated and have completed their punishments, an opportunity to exercise the fundamental right to vote. Moreover, the need for a uniform standard to enfranchise these citizens is desperately needed. This Act will restore the right to vote in federal elections to many citizens now deprived of that right.

York County, SC
The Voting Rights Project and the Southern Regional Office of the American Civil Liberties Union filed suit on February 4^th, 2000 against York County School District No. 1 (South Carolina) seeking to abolish the at-large system of electing the School Districts seven member Board of Trustees. Love v. York County, South Carolina School District No. 1 (D.S.C. 2000). The plaintiffs are five black registered voters and the Western York County Branch of the NAACP. For more than a decade the plaintiffs lobbied the Board of Trustees and their state legislators to adopt a single member districting plan that would provide the black community with a fair and equal opportunity to elect candidates of their choice as guaranteed to them by the Voting Rights Act. Every appeal was ignored or rejected, and black candidates continued to be defeated in election after election because of the persistence of racially polarized voting. The Project Staff and Laughlin McDonald of the ACLU are simultaneously pursuing settlement and discovery.

Morgan City (LA) City Council
On June 30, 2000, the Voting Rights Project filed suit on behalf of several black voters seeking relief under the Voting Rights Act to force Morgan City, Louisiana, to adopt five single-member districts for its city council, and settled the case on August 16. The council is presently elected at-large every four years. No black has ever been elected to the city council. According to the 1990 Census, Morgan City has a total population of 14,531 citizens, of whom 3,219 (22.2%) are black. The settlement calls for five single-member districts, one of which will have a black majority, to be used for city council elections this October. The Justice Department has also filed and settled its suit. Our co-counsel are Mack Frank of Frank Frank & Frank (Opelousas LA), and Vaughn Williams and Stacie Fatka of Skadden Arps Slate Meagher & Flom LLP, New York and Boston, respectively. Cornell Keeler et al v. City of Morgan City et al, No. 00-CV-1588 (WD La).

Florida's Disenfranchisement of Ex-Felons
The Voting Rights Project, the Brennan Center for Justice at NYU School of Law, and James Green and Nina Zollo (West Palm Beach FL) filed suit on 21 September 2000 in federal court in the Southern District of Florida on behalf of eight plaintiffs and a class of ex-felons, seeking to nullify Florida's constitutional and statutory provisions disenfranchising those convicted of felonies. The suit raises claims under Section 2 of the Voting Rights Act and the Fourteenth and Twenty-fourth Amendments for intentional racial discrimination, for disproportionate impact on African-Americans, for lack of a legitimate governmental purpose, and for instituting a de facto poll tax for voter registration. Thomas Johnson et al. v. Jeb Bush et al., Case No. 00-3542-Civ-King (S.D. Fla.).

Florida
The Voting Rights Project and five civil rights organizations filed suit on January 10, 2001, against the Florida Secretary of State, other state officials, and the Supervisors of Elections in seven counties. The suit was brought for the NAACP and 21 individual voters on behalf of a class of all Florida black voters who were not able to vote or whose votes are less likely to have been counted. The complaint alleges that the state violates the black voters' constitutional and statutory rights by using less reliable voting systems in areas with larger black populations, by mishandling registrations and purges, and by placing voters on an inactive list which prevents them from casting a ballot without telephone contact with the Supervisor's office (which is nearly impossible because of jammed phone lines). Other organizations working with the Lawyers' Committee are the NAACP, Advancement Project, NAACP Legal Defense and Educational Fund, People for the American Way Foundation, and American Civil Liberties Union. Our local co- counsel is Thomasina Williams of Williams & Associates PA (Miami). NAACP v. Harris, No. 01-CIV-120-GOLD (S.D. Fla.). McCutchen, Doyle, Brown & Enersen, LLP (San Francisco) has provided valuable legal and factual research on this matter.

Defending Majority-Minority Districts

Those opposed to blacks and other minorities being able to elect candidates of their choice to public office have gone on the offensive using the theory first announced by the Supreme Court in Shaw v. Reno and elaborated upon in several subsequent cases. The Lawyers Committee has undertaken the defense of several such actions. Typically, the white plaintiffs sue only one or more governmental defendants; we then must seek to intervene on behalf of black or Hispanic voters. We have argued as part of our motions to intervene that minority voters cannot rely on the state or local government to protect their representational interests. The events in the Florida Congressional case (below) support our argument.

Illinois Congressional Districts
In Illinois, whites claimed that the first Hispanic-majority congressional district in the State and a majority-black congressional district (both of which had been drawn by a federal court panel in an earlier case) were the result of a racial gerrymander. We had moved to intervene on behalf of black voters. We won at the district court, and the plaintiffs appealed. On January 26, 1998, the U.S. Supreme Court affirmed. King v. State Board of Elections, 979 F.Supp. 619 (N.D. Ill. 1997), affíd __ U.S. __, 118 S.Ct. 877, 139 L.Ed.2d 866 (1998). Board member and former Voting Rights Project Director Brenda Wright of Boston, Massachusetts and Judson Miner of Miner, Barnhill & Galland of Chicago, IL were co-counsel with the Chicago Lawyers Committee, MALDEF, and the Voting Rights Project.

Russell County, AL, Commission
White plaintiffs brought an action challenging past decrees changing the size of the county commission as part of settlements of blacks voting rights claims. The plaintiffs theory was that federal courts lack the authority to change the size of local government bodies, citing Holder v. Hall. Black voters intervened to defend the settlements. The black intervenes and the county commission worked together to obtain a new legislative act specifically authorizing the change in size. The U.S. District Court dismissed the case on grounds of mootness and denied fees to the white plaintiffs. The plaintiffs appealed, and the Eleventh Circuit affirmed in October 1998. Sumbry v Russell County, Ala., CV 84-T-1386-E (M D Ala). Our co- counsel were James U. Blacksher (Birmingham AL) and Terry G. Davis (Montgomery AL).

Florida Congressional and Senate Districts
Whites plaintiffs brought suit attacking five majority-minority districts in Dade, Broward, Palm Beach, and Monroe Counties under the Shaw v. Reno theory. The challenged districts two Congressional districts with black majorities, one with an Hispanic majority, and two Senatorial districts with large black populations ó were all drawn or approved by the federal court in De Grandy v Wetherell, 794 F.Supp. 1096, 815 F.Supp. 1550 (N.D. Fla. 1992) (3 judge court), in which the Lawyers' Committee had represented black Intervenors. In early July 1998, the Voting Rights Project moved to intervene on behalf of the Florida Conference of NAACP Branches and several black voters (in the four districts with significant black populations) to defend the present districts on the basis of a compelling governmental interest in combating racially polarized voting and complying with the Voting Rights Act. After a several-month delay, the federal court in the Southern District of Florida finally granted our motion to intervene. In August 1999, the plaintiffs and the state defendants filed a so-called settlement without the approval of the Lawyers' Committee clients or other minority intervenors (the elected official and voters from each challenged district). All the intervenors opposed the settlement and coordinated their responses and oral arguments at a three-hour hearing on October 12. Two weeks later, the court dismissed the suit on the grounds of laches. On February 22, 2000, the plaintiffs filed their Jurisdictional Statement in the U.S. Supreme Court appealing the dismissal of their suit. The Lawyers' Committee filed a motion to dismiss or affirm on March 24, 2000, on behalf of the Florida Conference of NAACP Branches and several black voters. The other intervenors joined in the Lawyers' Committee brief. Co-counsel with the Project are Matthew M. Strickler and Stephen Kastenberg, of Ballard Spahr Andrews & Ingersoll (Philadelphia), and David Lipman (Miami). Chandler v. Harris, No. 99-1396 (US Sup Ct); Fouts v. Harris, No. 98-10031-Civ-Paine (S.D.Fla.).

Dooly County (GA) Commission and School Board Districts
On March 1, 1999, the Voting Rights Project (on behalf of six voters and the local NAACP chapter) moved to intervene in a challenge to the constitutionality of the present districts for the County Commission and School Board. The white plaintiffs contend that the current districts are racial gerrymanders for which there is no nonracial explanation Although the county was 49% black according to the 1990 census, three of the five districts have now elected black county commissioners. Project staff are working with Ben Geyerhahn of Kaye Scholer Fierman Hays & Handler (New York) to defend the present districting plan. The case is set for trial on February 22, 2000. Sanders v. Dooly County, Georgia, No. 98-CV-412 (M.D. Ga.).

Baldwin County (AL) Commission
In this action, the white opponents of the plan had to intervene in an on-going case. In 1988, black plaintiffs and the Baldwin County Commission sought and obtained approval of a consent decree creating seven county commission districts (in place of four districts) in Baldwin County, AL. In 1996 white intervenors alleged that the 1988 judgment in this case exceeded the court's remedial authority under Section 2 of the Voting Rights Act. On June 18, 1999, the U.S. District Court granted the Lawyers' Committee is motion to dismiss the intervenors complaint on the following grounds: (a) they failed to state a claim under the 10th and 11th Amendments and (b) they did not properly make a motion for relief from the judgment under Rule 60. The intervenors appealed. After briefing, the county adopted a resolution changing the size of the commission, under the authority of a state law. The county and Dillard then moved to dismiss the appeal. Dillard v. Baldwin County Commission, No. 87-T-1159-N (M D Ala); No. 99-12251-HH (11th Cir). The case is being handled by James U. Blacksher (Birmingham, AL), Project Director Edward Still (both of whom have been handling the case since 1986), Prof. Pamela S. Karlan (Stanford Law School), and Norman Chachkin and Jacqueline Berrien (NAACP LDF).

North Carolina Congressional Districts
For the third time in five years, the Supreme Court heard an appeal concerning North Carolina's congressional districts. After North Carolina redrew its plan and one three-judge federal court approved it, the white plaintiffs filed another suit before a different panel claiming that the newly drawn plan had race as its predominant mutilator. The Voting Rights Project with the assistance of Matthew Zion and David Stein of Steppe and Johnson (Washington DC), and James U. Blacksher (Birmingham AL) filed an amicus brief arguing that the summary judgment on behalf of the plaintiffs should be reversed. Our brief asked the Court to clarify, if not overrule, Shaw v. Reno to increase the burden of proof required to strike down districting plans. While the Supreme Court did reverse the decision and remand the case for trial, it did not make a significant change in the substantive standards to be applied by the lower courts. Hunt v. Cromartie, __ U.S. __, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).

Louisiana Judgeships
In several cases in the Middle District of Louisiana, white plaintiffs challenge several of the majority-black judicial districts created as the result of the Clark v. Roemer litigation or to resolve Section 5 objections entered by the Department of Justice. In Oren v. Foster, CV 96-3130 (MD La), several voters represented by the Voting Rights Project and Board member Robert McDuff of Jackson, MS, intervened as defendants to defend the districting plan. On February 10, 1999, the district court granted summary judgment for the Voting Rights Project's clients and the State, holding that race was not the predominant factor in drawing the judicial district lines, that (even if race was a consideration) the districting plan was narrowly tailored to remedy past discrimination.

Alabama Legislative Districts
In 1992 black plaintiffs brought suit in state court against state officials. That case was settled by a court-ordered districting plan. Four years after a settlement was approved, white plaintiffs brought a Shaw-Miller challenge in federal court to the legislative redistricting plan against the black plaintiffs (Sinkfield) in the state court case and the relevant election officials. The federal court stayed the case and required the challengers to intervene in the state court case. After the Alabama Supreme Court held that the white challenger's appeal from the judgment of the trial court was moot, the federal court dissolved the stay. Because of the United States v. Hays ruling that plaintiffs in Shaw cases may challenge only districts in which they live, the court allowed Thompson to challenge any districts not involved in the state court suit. We and the State filed motions for summary judgment. In a series of pretrial orders in December 1999 and early January 2000, the court granted the Voting Rights Project's motions for summary judgment on claims against several legislative districts and proceeded to trial against nine districts, all of which are overwhelmingly white (72% or more). Trial was held January 18-25, 2000. On April 24, 2000, the court held that seven legislative districts were unconstitutional because race was a predominant factor in the way they were drawn. Both the State and the intervenes filed notices of appeal on May 23. Kelley v Bennett (formerly Rice v. Smith and Thompson v. Smith), (M.D. Ala) (3-judge court). Working with Voting Rights Project staff are James U. Blacksher (Birmingham, AL), Larry T. Menefee (Montgomery, AL), and Fred D. Gray, of Gray Langford Sapp McGowan Gray & Nathanson (Tuskegee, AL).

Putnam County, GA, County Board of Commissioners
The Voting Rights Project, in conjunction with Laughlin McDonald of the Southern Regional Office of the ACLU (Atlanta GA), and John Clark (Elberton GA), represents six black voters and the Georgia State Conference of NAACP Branches. The Putnam County Commission districts currently under challenge by white voters, are an amendment to a remedial redistricting plan implemented in Bailey v. Vining, 514 F.Supp 452 (M.D. Ga. 1981). Initially, the federal district court denied black voters and the NAACP permission to intervene to defend the current plan. On appeal, Clark v. Putnam County, 168 F.3d 458, 462 (11th Cir. 1999), the Eleventh Circuit reversed the district court and held that white plaintiffs arguments that proposed interveners wish to vindicate illegitimate interests and ... that their participation would complicate and protract the litigation was irrelevant Black voters, the Court held, must be given the right to defend their hard fought and recently obtained voting rights. Discovery in the case continues. Clark v. Putnam County, Civ. A. No. 5:97-CV-622-3 (M.D. Ga.)

Census-Related Activities

In its Report To Congress; The Plan For Census 2000 (the 'Report to Congress'), the Bureau of the Census explained it had learned from surveys taken to check the accuracy of the 1990 Census that some groups were counted less effectively than others, including children, renters (particularly in rural areas), and racial and ethnic minorities. Children were approximately one-half of the net undercount (while they are only one quarter of the population). The undercount rate for African-Americans was six times greater, the rate for Hispanics seven times greater, and the rate for American Indians more than seventeen times greater, than that for non-Hispanic whites. Report to Congress at 2-4. The Bureau reported that the methods that it had employed in previous censuses could not sufficiently remedy the undercount, and especially the differential undercount of minorities, that had led to a decrease in accuracy between the 1980 and 1990 censuses. Report to Congress at x, 2. To correct this differential undercount and achieve an overall more accurate count, the Bureau proposed to use statistical sampling. The Lawyers' Committee supports the use of sampling and has taken several steps to support the Bureaus decision.

Census Sampling
The House of Representatives sued to block the Clinton Administration's plans to use sampling in Census 2000; it contended the plan was illegal and unconstitutional. A special 3-judge court in the District of Columbia had held that sampling was contrary to Title 13 of the U.S. Code (but did not rule on the constitutional issue). The Voting Rights Project filed a Supreme Court amicus brief on behalf of several black voters in Alabama and Massachusetts, the American Jewish Committee, the American Jewish Congress, and the National Urban League on October 6, 1998. Our amicus brief argued that an accurate count (through sampling) is necessary to achieve true population equality in legislative districting, that a proper interpretation of Title 13 allows the use of sampling, and that the Constitution does not forbid sampling. In Department of Commerce v. United States House of Representatives, __ U.S. __, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999), the Court held that the Census Act prohibits the use of statistical sampling in calculating the population for purposes of apportionment of the members of the House of Representatives, but did not reach the plaintiffs claim that sampling also violates the Constitution. Co-counsel with the Project were Marc K. Temin and Verne W. Vance, Jr., of Foley Hoag & Eliot LLP, Boston

Civil Rights Commission Testimony
On February 12, 1999, Project Director Edward Still testified at a briefing before the U.S. Commission on Civil Rights on the impact of the Supreme Court decision, Department of Commerce v. United States House of Representatives, No. 98- 404. The Court held that the Census Act prohibits the use of statistical sampling in calculating the population for purposes of apportionment of the members of the House of Representatives, but did not reach the plaintiffs claim that sampling also violates the Constitution. Still testified that the decision required the Census Bureau to continue to use sampling and make the resulting data available for intrastate redistricting. The Commission videotaped all testimony and has made it available for viewing on its Web site, http://www.connectlive.com/events/civilrightscommission/sampling021299.html.

Comment Letter on Arizona and Alaska Preclearance Requests
After their loss in the House v. Department of Commerce case, opponents of census sampling turned their attention to the state legislatures. In several states bills were introduced to require that the State Legislature (or redistricting commission in some states) shall base the post-2000 districting of the legislative and congressional districts on census data that has not been adjusted using statistical methods. Four states have adopted such laws: Arizona, Alaska, Colorado, and Kansas. The first two of those states are covered by Section 5 of the Voting Rights Act and therefore must submit the new acts for preclearance. Arizona has made such a submission of its new act, Chapter 47, 1999 1st Reg. Sess. Alaska submitted Senate Bill 99. In each case, the Voting Rights Project (on behalf of several Native American or Alaskan Native clients) submitted a letter to the Department of Justice urging that it object to the implementation of the act. The Justice Department has requested that each State provide additional information some of it based on the comment letter from the Voting Rights Project. Working with the Project are Marc K. Temin and Verne W. Vance, Jr., of Foley Hoag & Eliot LLP (Boston).

Census Brochure
A brochure explaining the need for a full and accurate count in Census 2000 has met with resounding acclaim. Nearly 4000 copies have been distributed to the NAACP 47th Annual Southeast Region's Leadership, Development and Training Institute; the American Federation of County and Municipal Employees (Census Meeting); the Black Law Students Association convention; the Congressional Black Caucus; several visitors from Brazil brought to our offices by the USIA Affirmative Action Project; Alabama Democratic Conference (the Black Caucus of Alabama); the Virginia State Bar, the Population Resource Center (Princeton, NJ), the Brennan Center for Justice at NYU Law School, the national and several state NAACP Conventions, and many clients and informal contacts. The brochure was developed by Executive Director Barbara Arnwine, Voting Rights Staff Attorney Gilda Williams, and Voting Rights Paralegal Elena Grigera.

Meeting With Census Bureau Leaders
Executive Director Barbara Arnwine, Project Director Edward Still, and Staff Attorney Gilda Williams met with top staff of the Census Bureau, including Census Director Kenneth Prewitt, on May 24, 1999, to brief the Bureau on our public education efforts regarding Census 2000, to learn of the Bureauís efforts, and to discuss how we might work together on these efforts to achieve the most accurate census possible. Census Bureau officials praised the Committee's first Census educational brochure.

Monitoring Changes in Census Racial Tabulations
The Census Bureau will make two significant changes in Census 2000. First, the racial categories will expand by one. The 1990 racial categories were white, black, American Indian or Alaska Native, and Asian or Pacific Islander. The last category will be split into (1) Asian and (2) Native Hawaiian or Other Pacific Islander. Second, each respondent will be allowed to designate more than one race. There are 63 different combinations of these six categories. There were a variety of proposals on how to report the racial data. On 10 March 2000, the White House announced guidelines for tabulating the racial data collected in Census 2000. The new guidelines are the result of nearly two years of discussions among the Administration and a variety of groups interested in the use of racial statistics collected by the Census Bureau and other federal statistical agencies. The Lawyers' Committee's Voting Rights Project worked with a small group within the Leadership Conference on Civil Rights to inform the Administration of the concerns of the civil rights community. The Voting Rights Project was particularly concerned about the usefulness and accuracy of racial statistics in redistricting. Other Lawyers' Committee projects, however, are also concerned because changes in government statistical data on race would affect their work as well.

One early proposal for reporting the racial data would have provided only ranges of population for each of the racial groups. For instance, the population in a particular county might be reported as 65-69% white, with the 65% those who had checked only white,î while the 69% would include those who had checked white plus any other race. Because of concerns about the imprecision in this type of report, the Leadership Conference on Civil Rights, of which the Lawyers' Committee is a member, argued against this proposal. The Census Bureau recognized this concern and rejected the plan. Instead, it announced that it would include all 63 categories for use by States and localities in the redistricting data it will release in March 2001.

The final guidelines announced in March affect only the reports that must be made by States, localities, and businesses to the Federal Government and the Government's own internal analysis of race data. For reports to the Government, race data will include all single-race groups, the four most numerous two-race groups, and any multi-racial groups that exceed 1% for the particular area.

Because of the successful campaign carried out by the Lawyers' Committee and the Leadership Conference on Civil Rights, the reporting and use of racial statistics will balance the need for accurate information about an individual's particular racial self-identification with the need of users for accurate data within a manageable set of categories.

Teleconferences on Census Sampling
On December 15, 1999, and February 22, 2000, Voting Rights Project Director Edward Still participated in three teleconferences on the Census and the state legislative attacks against the use of adjusted data for redistricting. One conference included community activists from around the country and the other was for the press. Other speakers on the conferences included Wade Henderson (Leadership Conference on Civil Rights), U.S. Rep. Carolyn Maloney (New York), Marisa Demeo (MALDEF), Ramon Valadez (member of the Arizona House of Representatives).

Census 2000 Outreach Conference in Detroit, Michigan on Feb. 5th
On February 5, 2000, the National and Chicago offices of the Lawyers' Committee for Civil Rights Under Law sponsored a Census 2000 Outreach Conference in Detroit, Michigan. The purpose of this meeting was to raise awareness of the importance of having an accurate Census and its impact on our community. It included information about outreach and media strategies for local communities and organizations to employ for their own Census outreach. Representatives from the Census Bureau and the Mayor's office were present to answer questions regarding the Census. Attending the conference were elected officials, community organizers, religious leaders and others throughout the Midwest.

National Voter Registration Act ((Motor-Voter))

Mississippi
On October 5, 1998, a three-judge court in Mississippi enjoined the State to allow all voters registered under the National Voter Registration Act of 1993 to vote in state and local elections. This is a sequel to the Committee's significant victory in the first U.S. Supreme Court case to consider the NVRA. In Young v. Fordice, 117 S.Ct. 1128 (1997), the Supreme Court held that the state of Mississippi was required by Section 5 of the Voting Rights Act to preclear its plan requiring voters to register separately for federal and state elections. Because the Attorney General has now objected to this dual registration plan and the Governor has vetoed a bill to provide for single registration, the Voting Rights Project had requested an injunction allowing those registered (for federal elections only) under the NVRA provisions to be allowed to vote in this falls state elections as well. The district courts injunction should allow more than 42,000 Mississippians to vote in state elections. Co-counsel in this case are Board Member and former Director of the Voting Rights Project Brenda Wright of Boston, Massachusetts; Board Member A. Spencer Gilbert, III, of Wise, Carter, Child & Caraway; Will Manuel of McNamara, Bailey & Kelly; Margaret Carey of the Center for Constitutional Rights; and Laughlin McDonald and Neil Bradley of the Southern Regional Office of the ACLU.

Louisiana
On June 10, 1999, the Fifth Circuit decided an appeal on which the Voting Rights Project had filed an amicus brief along with the Community Service Society of New York, the League of Women Voters, the Asian American Legal Defense and Education Fund, the American Civil Liberties Union Foundation, the Puerto Rican Legal Defense and Education Fund, and the NAACP Legal Defense and Educational Fund. We had urged the reversal of a decision holding that ACORN (Association of Community Organizations for Reform Now) did not have standing to bring a suit under the National Voter Registration Act. The Court partially reversed and held that ACORN had organizational standing to raise one claim out of three and that it did not have representational standing because of the lack of a concrete injury alleged to its members. Our amicus brief discussed only the organizational standing issue. ACORN v. Fowler, 178 F.3d 350 (5th Cir. 1999).

Florida
The NAACP v. Harris case contains claims under the NVRA. See Florida under
"Section 2 of the Voting Rights Act."

Other Voting Rights Theories

Although the Voting Rights Act of 1965 has provided a statutory basis for most voting rights cases, it and the National Voter Registration Act have not completely subsumed all voting rights litigation. Cases may still be brought under a constitutional claim although a constitutional claim of race discrimination may require a showing of intent. Nevertheless, we continue to keep our eyes open for such violations ó and brought such a case against Montgomery County, MS (see below).

Montgomery County, MS, Superintendent of Education
On October 19, 1999, the Voting Rights Project filed suit challenging the method of electing the Superintendent of Education in Montgomery County, Mississippi. The black majority in the Montgomery County school district are unable to elect a candidate of their choice as superintendent because state law allows the residents of the independent (and majority white) Winona school district to vote for the county superintendent, even though Winona residents do not send their children to Montgomery County schools or support those schools with their taxes. This Mississippi law, allowing city residents to vote in certain county superintendent elections, has already been deemed unconstitutional (under the Equal Protection Clause) as applied to another county in a virtually identical case. Our co-counsel are Robert B. McDuff (Jackson MS) and Ray Charles Carter (Madison MS). Wright v. Moore, No. 3:99cv138-P-A (N. D. Miss.).

Since the suit was filed, the county election commission has conceded that the current method of electing the Superintendent of Education violates the equal protection clause of the Fourteenth Amendment. On January 21, 2000, all parties met with the local magistrate. Only the remedial issues and final judgments in the case remain.

Education of the Public and the Bar

Washington and Lee University
On February 10, 1998, Edward Still spoke at a faculty luncheon of the Washington and Lee University Law School on the topic Is there a (color blind) way to achieve minority representation? Shaw ënuff. There was a lively question and answer period among the faculty following the speech, with many faculty members interested in the implications of Shaw v. Reno, its effect on majority-minority districts, and the possible use of remedies such as cumulative voting or choice voting as alternatives to single member districts. Later that day Still was a guest professor at a joint law-political science class on Election Law.

NAACP State Conferences in the South
During the Fall of 1998 and 1999, the lawyers of the Voting Rights Project have spoken to one or both annual meetings of the State Conference of NAACP Branches in Alabama, South Carolina, North Carolina, Florida, Georgia, Louisiana, Mississippi, and Tennessee. In each speech, the lawyers discussed voting rights in general, the importance of Census 2000 in particular, and how to prepare for the 2001 round of redistricting.

Coordinating Post-2000 Strategy
During 1998 and 1999, the staff of the Voting Rights Project have been meeting with officials of other civil rights groups to coordinate a unified effort to preserve minority voting strength during the next round of redistricting. Shortly after his becoming Project Director, Edward Still began the informal discussions.

In the late Spring of 1998, a formal meeting of about a dozen organizations was convened by the Voting Rights Project at the offices of the Rockefeller Foundation. Ideas at that time included one or more jointly sponsored conferences for minority members of legislatures, for potential client groups, and for lawyers who will be handling such cases. The Lawyers' Committee and the others also discussed ways to keep each other better informed of their litigation activities.

On March 17 and 18, 1999, Edward Still and Gilda R. Williams spoke at the Southeast Regional NAACP Annual Convention in Gulfport/Biloxi, MS, where they participated in a one and a half day ìSummit on Census 2000 and Redistricting.î During the Summit, participants, which included representatives from grassroots organizations, civil rights organization, and the national office of the NAACP discussed strategies for ensuring an accurate Census and redistricting principles. Mr. Still and Ms. Williams appeared on a panel and addressed lessons learned during the 1990 redistricting and the importance of an accurate census.

Edward Still and Gilda Williams attended a small conference of civil rights groups interested in preparing for post-2000 redistricting. The May 20-22, 1999, conference was hosted by the NAACP at the Kellogg Conference Center at Tuskegee University in Alabama. Still gave the group an update on Census 2000ís new features and the controversy surrounding them. Williams participated in planning the conference along with NAACP staff and served as the facilitator.

On June 27 and 28, 1999, the Voting Rights Project hosted a small conference of civil rights groups interested in preparing for post-2000 redistricting in Southern states. Edward Still gave the group an update on Census 2000ís new features and the controversy surrounding them. Gilda Williams led much of the discussion during the two-day conference and reported to the group for a committee drafting a summary of the legal developments since the last round of redistricting.

Felon Voting Rights Conference
On March 4, 1999, Edward Still and Gilda Williams spoke at a Washington, D.C., conference on legal strategies for re-enfranchising individuals who are no longer incarcerated. The conference was sponsored by The Sentencing Project.

National Black Law Students Association
On March 27, 1999, Gilda R. Williams, spoke at the National Black Law Students Association (NBLSA) National Convention in Dallas, TX. Ms. Williams generally discussed the work of the Lawyers' Committee and specifically addressed voting rights issues in the new millennium and affirmative action. She is a former National Chair of NBLSA.

Symposium on Voting Rights of D.C. Citizens
During the summer of 1999, The American University Law Review published a Symposium Issue (Volume 48, Number 3) containing the speeches and panel discussions from a day-long symposium during October 1998 at American University's Washington College of Law.' Is There a Constitutional Right to Vote and Be Represented? The Case of the District of Columbia' Project Director Edward Still participated in a panel on, The Nature of the American Constitution.

Congressional Black Caucus Foundation
On September 17, 1999, Staff Attorney Maha S. Zaki spoke on a panel for the Congressional Black Caucus 9^th Annual Legislative Conference. The panel was entitled A. Leon Higginbotham Memorial Braintrust: The Voting Rights Act and the Year 2000 Elections Other panelist included Congresswoman Eleanor Holmes Norton, Congresswoman Corrine Brown, Congresswoman Carrie Meek, Congresswoman Cynthia McKinney, Congressman Mel Watt, and Judge Joseph Hatchett (retired, formerly Chief Judge of the United States Court of Appeals for the Eleventh Circuit). Zaki served as the legal expert for the panel regarding protecting minority representation in the future, the state of current voting rights law, and the degree to which race can be used in redistricting in light of recent changes in Supreme Court jurisprudence.

National Census Conference Call to Action
On August 6, 1999, the 34th anniversary of the Voting Rights Act, Project Director Edward Still spoke to a national teleconference, the National Census Conference Call to Action. Still spoke on the importance of mobilizing opposition to state acts such as Arizonaís recent Act 47 which mandates the use of less accurate census data for post-2000 redistricting. Using this less accurate data will undercount and therefore underrepresent blacks, Latinos, Asian-Americans, and Native Americans.

ABA Administrative Law Section Meeting
On October 14, 1999, Project Director Edward Still spoke on a panel of the ABA's Section of Administrative Law and Regulatory Practice in Washington DC. The panel was entitled "Redistricting: Pushing the Limits".

National Diversity Training Conference
On October 21, 1999, Gilda R. Williams was the luncheon speaker at a meeting of the American Contract Compliance Association in Palm Beach, FL. The ACCA trains and certifies contract compliance officers in the areas of employment discrimination, affirmative action and diversity. Ms. Williams spoke about current issues in voting rights, such as the potential impact of the Census, felon disenfranchisement, and redistricting.

Voting Rights Conference Held in Washington
On November 19-20, 1999, the Voting Rights Project hosted its Sixth Voting Rights Conference at American University Washington College of Law. This Conference brought together leading experts, litigators, legislators, and community organizers to discuss ways to empower the minority community in light of present and future obstacles to the utilization of the franchise. This Conference offered an opportunity for those concerned with voting rights enforcement and minority representation to analyze the most recent legal developments and develop new strategies and remedies intended to maintain and even gain minority voting strength. Each session was moderated by one of the members of the Voting Rights Project: Edward Still, Gilda R. Williams, and Maha S. Zaki.

National Conference of State Legislators
On December 2, 1999, Voting Rights Project Staff Attorney Maha S. Zaki addressed a group at the meeting of the National Conference of State Legislatures in Washington, D.C. Zaki spoke to the members and staff of state legislatures regarding their responsibilities and obligation to comply with the Voting Rights Act in the upcoming round of redistricting. Ms. Zaki was joined on the panel by Dr. Gary King, a political scientist at Harvard University, who spoke to the attendees regarding new statistical methods of analyzing racially polarized voting.

Harvard Law School Conference
Voting Rights Project Director Edward Still moderated a panel on ìEnfranchising the Disenfranchisedî at a conference sponsored by the Harvard Civil Rights-Civil Liberties Law Review on March 3-4, 2000. The conference was entitled CR-CL at 35: Constitutional Lawyering in the 21st Century.

University of Michigan Law School Conference
On March 17-19, 2000, Voting Rights Project Director Edward Still was a member of a panel on the impact of 2000 Census on minority communities at the Michigan Journal of Race & Lawís symposium entitled Identities in the Year 2000 and Beyond.

NAACP State Conferences in 2000
On September 29, 2000, both Voting Rights Project Director Edward Still and Staff Attorney Lori Outzs Borgen spoke to separate state conferences of the NAACP. Mr. Still spoke in Jacksonville FL to the Florida NAACP State Conference twice on the topic of redistricting. Ms. Borgen spoke to the Tennessee NAACP State Conference on "Driving While Black" with particular emphasis on the litigation attacking racial profiling by the New Jersey State Police on the New Jersey Turnpike.

Edward Still, the Director of the Voting Rights Project, spoke to a plenary session of the 65th Annual State Convention of the Virginia NAACP on November 3, 2000, in Virginia Beach, VA. Still was one of three panelists on 'Political Empowerment' and spoke specifically about the Census adjustment controversy and the suit in which the Lawyers' Committee represents the Virginia NAACP and several voters opposing the Commonwealth of Virginia's attempt to preclear its anti-sampling law.

National Black Caucus of State Legislators
Edward Still, the Co-Director of the Voting Rights Project, spoke to a workshop and a plenary session of the annual meeting of the 27th Annual Legislative Conference of the National Black Caucus of State Legislators regarding the recent election problems in Florida and preparations they need to make for redistricting in 2001. The meeting was held on November 29, 2000, in Charlotte, NC.

National Association of Secretaries of State
On January 13, 2001, Voting Rights Project Co-Director Edward Still spoke to the National Election Standards Task Force of the National Association of Secretaries of State regarding a set of election-related standards that each state should adopt. These were based on our investigation in Florida and complaints from other states. The standards included registration, polling-place procedures, and election systems.

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