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Department of Justice
Civil Rights Division

TCH:RSB :RPL:JP:EEK:maf DJ 166-012-3 2011-5037 2012-5304

Voting Section - NWB 950 Pennsylvania Avenue, NW Washington, DC 20530

March 21,2013

Winfield J. Sinclair, Esq. Assistant Attorney General P.O. Box 300152 Montgomery, Alabama 36130-0152 Dear Mr. Sinclair: This refers to the following: 1. Section 29 of Act No. 2011-535 (H.B. 56) (2011), insofar as it requires proof of United States citizenship for newly registered voters, provides a method for a prospective voter to affirm citizenship where supporting documents are ambiguous, establishes the provision of a free birth certificate for voter registration purposes, and provides procedures for implementing the citizenship verification requirement; 2. Act No. 2012-491 (H.B. 658) (2012), insofar as it allows for digital or electronic copies of qualifying documents and provides procedures for presenting evidence of citizenship 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 of registrars to determine an applicant's citizenship for voting purposes, and provide procedures for implementing the citizenship verification requirement; and 4. the new revisions to the State of Alabama Agency-Based Voter Registration Application Forms (NVRA-1A and NVRA-1B) and the State of Alabama Mail-in Voter Registration Form (NVRA-2), for the State of Alabama, submitted to the Attorney General pursuant to Section 5 of the Voting Rights 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 the information that remains outstanding and which is necessary to enable the Attorney General to make the requisite determination under Section 5 that the proposed changes have neither the


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 have enclosed 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 allow the Attorney General to determine that the changes at issue were not adopted, even in part, with a discriminatory purpose. For example, the State provided various fonns of legislative history in the 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 the state's congressional delegation and board of education (SFN 2011-3748), and the state legislature (SFN 2012-4129). The information sought in Item 7 of our November 27,2012, letter is the same type of information which the Attorney General received and considered in reaching his determination in those submissions, and which is lacking in the instant submission. In failing to respond to this request, the State notes that it "has neither legislative history ... nor an official transcript of proceedings," and claims generally that "produc[ing] documents related to the passage of Act No. 2011-535 is problematic." Although we cannot compel the State to provide any additional information, the State retains the burden of establishing that the proposed changes were 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 against Hispanics "is substantial enough to support putting H.B. 56 on hold pending further discovery and final presentation of evidence by the parties on the issue"). In addition, the State has the burden of establishing that its proposed citizenship verification requirement will not "lead to a retrogression in the position of racial minorities with respect 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's submission does not enable us to make such a determination. There is no requirement, as you suggest, that state legislatures commission extensive studies as to the effect of voting legislation as a prerequisite to establishing cOlnpliance with Section 5. At the same time, the State must provide sufficient information upon which the Department can make the necessary statutory determination. Again, we point to the State's consistent prior practice of providing, where appropriate, a statistical analysis of the effect of a proposed change, such as those studies of elections that accompanied the four state-wide redistricting plans submitted for Section 5 review following the release of the 2010 Decennial Census. In response to Items 1 and 2 in our letter, you state that "Alabama is concerned that using this 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 that alternative approaches may exist that would provide the same or similar data concerning the demographic characteristics of those persons who may be affected by the proposed changes at issue and do not mean to limit the manner in which the State may meet its statutory burden. For example, Items 3 and 5 in our letter afford the State the opportunity to provide any information


derived from alternative analytical approaches to establish that implementation of the c iti zenship verificat 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 Carolina v. United Stales, 20 12 WL 48 14094 at 15 (explaining that in the context of adopting voter identification laws where minorities disproportionately lack photo identification, " [sJtates have adoptcd 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 legislature defeated several amendments that could have made this a far closer case" by helping to prevent disenfranchisement of minority voters). Accordingly, we point to Items 4.b. and 4.c. of our letter, which provide the State with the opportunity to establish the effect iveness of its proposed program. We wish to afford the State a complete opportunity to prov ide information necessary to perform the requis ite analysis under Section 5. We are available to di scuss these issues further and to assist the State in considering alternati ve approaches that the State may wish to utilize to provide thi s information. The Attorney General has sixty days 10 consider a completed submiss ion pursuant 10 Section 5. Th is sixty-day review pe riod will begin when we receive the information as specified above . Procedures/or the Administration o/Seclion 5 of the Voting Righrs Ac[ 0/1965, 28 C. F .R. 5 1.37. Also, we remind you that if no response is received within sixty days of thi s request, the Attorney General may object to the proposed changes consistent with the burden of proof placed upon the submitti ng authority. 28 C.F.R. 51.40 and 51.52(a) and (c). Changes that affect vot ing are legall y unenforceable unless the requisite Section 5 determination has been obtained. Clark v. Roemer, 500 U.S. 646 ( 1991 ); 28 C.F.R. 51.1 o. Therefore, please in fo rm us of the action the State of Alabama plans to take to comply with this request. If you have any questions concerni ng this letter you should call John Powers (202-3530337) of our staff. Refer to File Nos. 2011-5037 and 2012-5304 in any response to this leHer so that your correspondence will be channeled properly.

ri ian Herren, Jr. Chief, Voting Section