7/29/2019 DOJ Letter re AL's HB56 29 and 5 of Voting Rights Act

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TCH:RSB :RPL:JP:EEK:mafDJ 166-012-32011-50372012-5304

Winfield J. Sinclair, Esq.Assistant Attorney GeneralP.O. Box 300152Montgomery, Alabama 36130-0152Dear Mr. Sinclair:

This refers to the following:

u.s. Department of JusticeCivil Rights Division

Voting Section - NWB950 Pennsylvania Avenue, NWWashington, DC 20530

March 21,2013

1. Section 29 ofAct No. 2011-535 (H.B. 56) (2011), insofar as it requires proof ofUnited States citizenship for newly registered voters, provides a method for aprospective voter to affirm citizenship where supporting documents are ambiguous,establishes the provision of a free birth certificate for voter registration purposes, andprovides procedures for implementing the citizenship verification requirement;2. Act No. 2012-491 (H.B. 658) (2012), insofar as it allows for digital or electroniccopies of qualifying documents and provides procedures for presenting evidence ofcitizenship to boards of registrars;3. the new proposed Secretary of State Regulations 820-2-2-.17 through 820-2-2-.24,which instruct voter registrars to assess the eligibility of voter registration applicants,create new voter registration forms, establish procedures for county boards ofregistrars to determine an applicant 's citizenship for voting purposes, and provideprocedures for implementing the citizenship verification requirement; and4. the new revisions to the State ofAlabama Agency-Based Voter RegistrationApplication Forms (NVRA-1A and NVRA-1B) and the State of Alabama Mail-inVoter Registration Form (NVRA-2),

for the State of Alabama, submitted to the Attorney General pursuant to Section 5 of the VotingRights Act of 1965,42 U.S.C. 1973c. We received your partial response to our November 27,2012, request for additional information on January 28,2013. We write concerning theinformation that remains outstanding and which is necessary to enable the Attorney General tomake the requisite determination under Section 5 that the proposed changes have neither the

7/29/2019 DOJ Letter re AL's HB56 29 and 5 of Voting Rights Act

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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 as required under Section 5. We haveenclosed a copy of the November 27,2012, letter for your convenience and reference.

In previous Section 5 submissions, the State has provided information that would allowthe Attorney General to determine that the changes at issue were not adopted, even in part, with adiscriminatory purpose. For example, the State provided various fonns of legislative history inthe context of several recent submissions such as for state board of education regulations(Submission File Number [SFN] 2007-4397), the four state-wide redistricting plans for thestate's congressional delegation and board of education (SFN 2011-3748), and the statelegislature (SFN 2012-4129). The information sought in Item 7 of our November 27,2012, letteris the same type of information which the Attorney General received and considered in reachinghis determination in those submissions, and which is lacking in the instant submission. In failingto respond to this request, the State notes that it "has neither legislative history ... nor an officialtranscript of proceedings," and claims generally that "produc[ing] documents related to thepassage ofAct No. 2011-535 is problematic." Although we cannot compel the State to provideany additional information, the State retains the burden of establishing that the proposed changeswere not adopted for any discriminatory purpose. South Carolina v. United States, _F.Supp.2d_, 2012 WL 4814094 at *12 (D.D.C. 2012); Cent. Ala. Fair Housing Ctr. v.Magee, 835 F.Supp.2d 1165, 1194 (M.D. Ala. 2011) (evidence of discriminatory bias againstHispanics "is substantial enough to support putting H.B. 56 on hold pending further discoveryand final presentation of evidence by the parties on the issue").

In addition, the State has the burden of establishing that its proposed citizenshipverification requirement will not "lead to a retrogression in the position of racial minorities withrespect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S.130, 141 (1976). As the November 27 letter notes, the information contained in the State'ssubmission does not enable us to make such a determination. There is no requirement, as yousuggest, that state legislatures commission extensive studies as to the effect of voting legislationas a prerequisite to establishing cOlnpliance with Section 5. At the same time, the State mustprovide sufficient information upon which the Department can make the necessary statutorydetermination. Again, we point to the State's consistent prior practice of providing, whereappropriate, a statistical analysis of the effect of a proposed change, such as those studies ofelections that accompanied the four state-wide redistricting plans submitted for Section 5 reviewfollowing the release of the 2010 Decennial Census.

In response to Items 1 and 2 in our letter, you state that "Alabama is concerned that usingthis methodology [of Spanish-surname matching] would produce unreliable data," and, therefore,ask that we "revisit" these two items. We continue to believe that, with the appropriate caveats,this methodology can provide some useful information. At the same time, we understand thatalternative approaches may exist that would provide the same or similar data concerning thedemographic characteristics of those persons who may be affected by the proposed changes atissue and do not mean to limit the manner in which the State may meet its statutory burden. Forexample, Items 3 and 5 in our letter afford the State the opportunity to provide any information

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derived from alternative analytical approaches to establish that implementation of the c iti zenshipverificat ion requirement wou ld not have a retrogressive effect.Finally, to the extent that such an effect may exist, we note that the State may st ill meet

its burden by ensuring it is effectively mit igated by other aspects of its program. South Carolinav. United Stales, 20 12 WL 48 14094 at 15 (explaining that in the context of adopting voteridentification laws where minorities disproportionately lack photo identification, "[sJtates haveadoptcd ameliorative provisions in their voter 10 laws" to mitigate any retrogress ive effect);Texas v. Holder, 888 F.Supp.2d 11 3, 144 (D.D.C. 2012) (not ing that "the Texas legislaturedefeated several amendments that could have made this a far closer case" by helping to preventdisenfranchisement of minority voters). Accordingly, we point to Items 4.b. and 4.c. of ourletter, which provide the State with the opportunity to establish the effect iveness of its proposedprogram.

We wish to afford the State a complete opportunity to provide information necessary toperform the requis ite analysis under Section 5. We are available to discuss these issues furtherand to assist the State in considering alternative approaches that the State may wish to utilize toprovide this in formation.

The Attorney General has sixty days 10 consider a completed submiss ion pursuant 10Section 5. Th is s ixty-day review period will begin when we receive the information as specifiedabove. Procedures/or the Administration o/Seclion 5 of he Voting Righrs Ac[ 0/1965 , 28C.F R. 5 1.37. Also, we remind you that if no response is received within sixty days of thisrequest, the Attorney General may object to the proposed changes consistent with the burden ofproof placed upon the submitti ng authority. 28 C.F.R. 51.40 and 51.52(a) and (c). Changes thataffect vot ing are lega lly unenforceable unless the requisite Section 5 determination has beenobtained. Clark v. Roemer, 500 U.S. 646 ( 1991 ); 28 C.F.R. 51.1 o. Therefore, please info rm usof the action the State of Alabama plans to take to comply with this request.

If you have any questions concerning this letter you should ca ll John Powers (202-353-0337) of our staff. Refer to File Nos. 2011-5037 and 2012-5304 in any response to this leHer sothat your correspondence will be channeled properly.

ri ian Herren, Jr.Chief, Voting Section

Enclosure