69 The Alabama Lawyer 293 (2008). Emergency Voting Changes.

• Author: BY JOHN TANNER

The Alabama Lawyer

2008.

69 The Alabama Lawyer 293 (2008).

Emergency Voting Changes

Emergency Voting ChangesBY JOHN TANNER Things go wrong with elections, as recent experience across the United States has abundantly proved. The most careful planning cannot address every contingency, and situations arise where full compliance with the law is virtually - or actually - impossible. The best-laid plans of state and local officials can be disrupted by everything from a hurricane to a truculent owner of a building used as a polling place.

In addition to finding a new polling place and advertising its location, or solving whatever the actual problem may be in a manner consistent with state law, the practitioner struggling with an emergency has to face a federal law, Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. Section 5 protects the voting rights of minority citizens, and requires federal review of your proposed remedial plan. That review must take place before your new procedure can be implemented, and the statute gives the U.S. Department of Justice months in which to complete its review. A misstep can mean redoing the whole election.

Success depends on awareness of the nature of and need of federal review, prompt action to comply and, most importantly, close consultation with the affected minority community on developing and implementing the new voting procedure.

Background: Section 5 of the Voting Rights Act

Under Section 5, any new voting practice or procedure - every change in an election date, voter registration or candidate qualifying deadline, polling place location, district boundary, or alteration of an election system - must undergo federal review to assure that it is not racially discriminatory as to either its purpose or effect. The review can be by either the United States District Court for the District of Columbia in a declaratory judgment action or administratively by the United States Attorney General, at the local government's choice. In an emergency, of course, the District Court process is out of the question. It is used relatively rarely even in more leisurely circumstances, and the vast majority of changes are reviewed administratively by the Department of Justice through the Voting Section of the Department's Civil Rights Division.

That review can take time. The statute allows the Department 60 days from its receipt of a submission of a new polling place or other voting change in which to interpose an objection to that change. The Department can, at any time within those 60 days, request additional information, and the 60-day period begins anew after receipt by the Department of the complete information. Until that 60-day period has expired with no objection interposed, the change is legally unenforceable: the polling place cannot be moved.

Governments ignore Section 5 at their peril. In the absence of Section 5 "pre-clearance" of a change, not only the Justice Department but any affected voter can seek an injunction from a three-judge panel to enjoin the change or obtain other relief. Allen v. State Board of Elections, 393 U.S. 545, 554-557 (1969). Many readers will recall that a federal court allowed the 1982 Alabama state legislative elections to go forward under a redistricting plan that had not been pre-cleared as to all areas of the state, but limited the legislators to one-year terms. Legislators had to face the voters again in a 1983...