COMPLAINT against ALBERTO R. GONZALES, WAN J. KIM ( Filing fee $ 350, receipt number 4616006277) filed by MIDDLESEX COUNTY, VIRGINIA. (Attachments: # 1 Civil Cover Sheet)(lc, ) (Entered: 08/20/2007)
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Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
MIDDLESEX COUNTY, VIRGINIA,
a political subdivision of the
Commonwealth of Virginia,
P. O. Box 358
Saluda, Virginia 23149
)
)
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
ALBERTO R. GONZALES,
)
Attorney General of the
)
United States of America,
)
WAN J. KIM,
)
Assistant Attorney General,
)
Civil Rights Division, United States
)
Department of Justice, Washington, DC,
)
)
Defendants.
)
____________________________________)
Civil Action No.
COMPLAINT FOR DECLARATORY RELIEF UNDER THE VOTING RIGHTS ACT
Middlesex County, Virginia, alleges that:
1. This is an action brought for declaratory relief pursuant to Section 4 of the
Voting Rights Act of 1965, as amended, 42 U.S.C. §1973b (hereinafter
"Section 4"). This Court has jurisdiction over this action pursuant to 28
U.S.C. §1343(a)(4), 28 U.S.C. §2201, 42 U.S.C. §1973b, and 42 U.S.C.
§1973l(b).
2. Plaintiff Middlesex County (“the County”) is a political subdivision of the
Commonwealth of Virginia and a political subdivision of a state within the
meaning of Section 4(a) of the Voting Rights Act, 42 U.S.C. §1973b(a)(1).Page 2 Middlesex County is located at the eastern end of Virginia's Middle Peninsula.
The County is bounded by the Rappahannock River to the north, by the
Chesapeake Bay to the east, by the Piankatank River and Dragon Run Swamp
to the southwest, and by Essex County to the northwest. The County has a
land area of 130 square miles and 135 linear miles of shoreline.
3. Located within Middlesex County is the Town of Urbanna (“the Town”).
Residents of the Town are eligible to participate in town elections and in
county elections.
4. In addition to the County itself, there are elected governmental units that exist
completely in Middlesex County within the meaning of 42 U.S.C.
§1973b(a)(1). One of these is the town government of Urbanna, which is
governed by a Town Administrator, Mayor and 6-member town council.
Another governmental unit operating completely within Middlesex County is
the five-member Middlesex County School Board, which are elected in odd
years to four-year staggered terms from the same districts as members of the
County Board of Supervisors.
5. The Middlesex County Board of Supervisors is the governing body that
formulates policies for the administration of government in Middlesex
County. It is comprised of five members elected from single-member districts
to serve four-year staggered terms. The County Board of Supervisors appoints
a County Administrator to serve as the County's chief administrative officer.
The general day to day operations of Middlesex County are controlled by the
Office of the County Administrator.
2Page 3 6. Middlesex County is a covered jurisdiction subject to the special provisions of
the Voting Rights Act, including Section 5 of the Act. 42 U.S.C. §1973c.
Under Section 5, the County is required to obtain preclearance from either this
Court or from the Attorney General for any change in voting standards,
practices and procedures since the Act’s November 1, 1964 coverage date for
Virginia.
7. Middlesex County was designated as a jurisdiction subject to the special
provisions of the Voting Rights Act on the basis of the determinations made
by the Attorney General that Virginia maintained a “test or device” as defined
by Section 4(b) of the Act on November 1, 1964, and by the Director of the
Census that fewer than 50 percent of the persons of voting age then residing in
the state voted in the 1964 presidential election. 42 U.S.C. §1973b(b). The
“test or device” triggering preclearance coverage under Section 5 was an
article of the Virginia Constitution providing for a literacy test as a
prerequisite for citizens to become electors. Va. Const. Art. II, Sec. 20
(1902). The literacy test was repealed by the Virginia Constitution of 1972.
8. According to the 2000 census, Middlesex County, Virginia has a total
population of 9,932. Of this number, 1,999 persons (or 20.1%) are black and
55 (or .6%) are Hispanic. The voting age population of the County, according
to the 2000 census, is 8,023. Of this number, 1,563 (19.5%) are black. The
Town of Urbanna, according to the 2000 census, has a total population of 543.
Of this number, 19 (3.5%) are black and 3 (.6%) are Hispanic.
3Page 4 9. Like other jurisdictions in the Commonwealth of Virginia, the County does
not collect or maintain voter registration data by race. Current data show,
however, that a significant proportion of the County’s voting age population is
registered to vote. As of November 2006, there were 7,348 registered voters in
Middlesex County.
10. The number of registered voters in the County has steadily risen over the last
few years. In 1998, for example, there were 5,989 registered voters in the
County. By 2003, the number of registered voters had grown to 6,601. The
number of registered voters in the County has continued to grow. As of 2006,
there were 7,348. Thus, from 1998 to 2006, the total number of registered
voters in the County has grown by 23% (from 5,989 in 1998 to 7,348 in
2006).
11. Voter turnout in elections within Middlesex County (i.e., the percentage of
those registered voters who cast ballots) varies according to the offices up for
election. In the last two Presidential elections (2000 and 2004), for example,
75.8% and 76.9% of the County’s registered voters turned out to vote,
respectively. In the General Elections for state and county offices held in
November 1999, 2001, 2003, and 2005, 62.7%, 58.6%, 51.2%, and 54.1% of
the County's registered voters turned out to vote, respectively.
12. There are presently a total of seven polling locations located conveniently to
voters across the County. All polling places in the County are accessible to
voters with physical disabilities.
4Page 5 13. Black candidates have had a long history of electoral success in Middlesex
County. Mr. Frank Jessie, who is Black, was first elected to the Board of
Supervisors in 1979, and won re-election as recently as 1999. A Black
candidate beat a White candidate in the county-wide election for Sheriff in
1997. A Black candidate is running unopposed in the county-wide election for
Commissioner of Revenue this November. The current Vice Chairman of the
Middlesex County Board of Supervisors is Black, having been re-elected in
2003. In 1999, 2001, and 2003, Black candidates for the County Board and
School Board each won. In the 2003 School Board race, a Black candidate
defeated a White candidate.
14. Since its inception in 1965, the Voting Rights Act has allowed States, which
are subject to these special provisions of the Act, to exempt themselves from
coverage under the Act's special remedial provisions, if they can satisfy
standards established in the Voting Rights Act. This exemption process is
known as “bailout”.
15. In 1982, Congress made changes in the exemption standards of the Voting
Rights Act. As amended in 1982, Section 4 of the Voting Rights Act provides
that States, as well as political subdivisions within those States that are
covered under the special provisions of the Act, are entitled to a declaratory
judgment in this Court granting an exemption from the Act's special remedial
provisions if, during the ten years preceding the filing of the action:
A) no test or device has been used either for the purpose or with the effect
of denying or abridging the right to vote on account of race, color, or
membership in a language minority group, within the State or political
subdivision seeking a declaratory judgment;
5Page 6 B) no final judgment has been entered by any court determining that the
political subdivision has denied or abridged the right to vote on account of
race, color, or membership in a language minority group;
C) no Federal examiners have been assigned to the political subdivision;
D) all governmental units within the political subdivision have complied
with the preclearance provisions of Section 5 of the Voting Rights Act, 42
U.S.C. §1973c; and
E) the Attorney General has not interposed any objection to any proposed
voting change within the political subdivision and no declaratory
judgment has been denied with regard to such a change by this Court
under Section 5.
As amended in 1982, Section 4 of the Act also requires States and political
subdivisions seeking an exemption from the Act's special provisions to
show that, during the pendency of the declaratory judgment action seeking
such exemption:
A) Any voting procedure or method of election within the state or political
subdivision exists which inhibits or dilutes equal access to the electoral
process has been eliminated;
B) Constructive efforts have been made by the political subdivision to
eliminate any intimidation or harassment of persons exercising rights
under the Voting Rights Act; and
C) Expanded opportunities for convenient registration and voting exists
within the State or political subdivision.
16. As described herein, plaintiff Middlesex County has fully complied with the
provisions of Section 4 of the Act.
17. As a political subdivision of the Commonwealth of Virginia, plaintiff
Middlesex County has been subject to certain special remedial provisions of
the Voting Rights Act, including the provisions of Section 5 of the Act, 42
U.S.C. §1973c. Under Section 5 of the Act, known as the "preclearance"
provisions, covered jurisdictions, including Middlesex County, are required to
seek and obtain preclearance from either this Court or from the United States
Attorney General of any change affecting voting, and such preclearance must
be obtained prior to implementation.
6Page 7 18. Since 1996, Middlesex County has made 14 preclearance submissions to the
United States Department of Justice pursuant to Section 5 of the Voting
Rights Act, 42 U.S.C. §1973c. Of these 14 submissions, all were made by the
County. None were objected to by the Department. Two were withdrawn.
19. Within the ten years preceding the filing of this action, Middlesex County has
not enforced any voting changes prior to Section 5 preclearance. Nor has the
Attorney General interposed a Section 5 objection to any change affecting
voting in Middlesex County within the past ten years. The County has not
sought judicial preclearance of any voting changes in this Court.
20. Voter registration opportunities in the County are readily and equally
available to all citizens. The voter registration office for the County is located
in the Woodward Building with other county offices in Saluda, a location that
is convenient for all County residents. The voter registration office is open
daily from 8:30 a.m. to 4:30 p.m.
21. Voters in Middlesex County may also register by mail, and voter registration
applications are available at locations convenient to voters in the County. The
opportunity to become a registered voter in Middlesex County is also
available under the National Voter Registration Act (the “NVRA”) at the
Department of Motor Vehicle (“DMV”) offices and at public assistance
agencies in Middlesex County. The Middlesex County General Registrar
makes voter registration applications available at the County social services
office, County health department, all of the libraries in the County, and all of
the post offices in the County. The registrar typically does a presentation
7Page 8 about voting and registers high school seniors at the public high school in the
spring. While in past years most voters became registered at the County’s
voter registration office, the implementation of the NVRA in Virginia over the
last decade has changed the origin of many registration applications. Today,
many of the County's new registrants register through applications submitted
through the DMV and by mail, and the opportunities for persons to register to
vote in Middlesex County has been made more convenient and available as a
result of implementation of the NVRA.
22. Voter registration opportunities in the County are readily and equally
available to all citizens.
23. Middlesex County has a three-member Electoral Board, appointed pursuant to
Virginia state law. The Electoral Board is comprised of one black member and
two white members. No person recommended to serve as a poll official has
been rejected by the Electoral Board for at least the preceding ten years. The
Electoral Board Secretary, Dr. Chauncey E. Mann, Jr., is Black, and has
served on the Board since 1990.
24. In the last five county-wide elections (General, Primary and Special 2006,
General and Primary 2005) Middlesex County has employed 201 poll
workers, of whom 33 (or 16.4%) are black. The percentage of black poll
workers (16.4%) is slightly below the percentage of Middlesex County’s
black voting age population (19.5%). Black interns have participated in the
General Voting Registrar’s summer internship program.
8Page 9 25. No person in Middlesex County has been denied the right to vote on account
of race, color, or membership in language group for at least the preceding ten
years.
26. No "test or device" as defined in the Voting Rights Act (42 U.S.C.
§1973b(c)) has been used in Middlesex County as a prerequisite to either
registering or voting for at least the preceding ten years.
27. No final judgment of any court of the United States has determined that
denials or abridgments of the right to vote on account of race or color have
occurred in Middlesex County, nor has the County entered into any consent
decree, settlement or agreement resulting in any abandonment of a voting
practice challenged on such grounds. There are no pending actions against
Middlesex County alleging such denials or abridgments of the right to vote.
28. No voting practices or procedures have been abandoned by the County or
challenged on the grounds that such practices or procedures would have either
the purpose or the effect of denying the right to vote on account of race or
color.
29. Middlesex County has not employed any voting procedures or methods of
election that inhibit or dilute equal access to the electoral process by minority
voters in the County. Minority voters in Middlesex County are not being
denied an equal opportunity to elect candidates of their choice to the County
Board of Supervisors, to the County School Board, or to the Urbanna Town
Council.
9Page 10 30. Federal examiners have never been appointed or assigned to Middlesex
County under Section 3 of the Voting Rights Act, 42 U.S.C. §1973a.
31. Because there has not been any known intimidation or harassment of persons
exercising rights protected under the Voting Rights Act in Middlesex County
within the last ten years, neither the County nor any of its governmental units
have had any occasion to take any action eliminating such activity.
32. Pursuant to 42 U.S.C. §1973b, the County has “publicize[d] the intended
commencement …of [this] action in the media serving [the County] and in the
appropriate United States post offices.” A Notice of Intent to Seek a Bailout
was published by the County in the Southside Sentinel, the County’s weekly
newspaper on March 22, March 29, and April 5, 2007. This Notice was also
posted at all post offices in the County, at the County courthouse in Saluda, at
the County social services office, and at the office of the General Registrar of
Voters. The aforementioned Notice also advertised that a public hearing
would be held regarding the bailout on April 17, 2007, at 7:30 p.m. At the
April 17, 2007 public hearing, not a single member of the public appeared,
and thus no one spoke in opposition to the bailout or raised any questions
about the County’s proposed bailout.
33. The allegations set forth in paragraphs 17 through 32, above, if established,
entitle plaintiff Middlesex County to a declaratory judgment under Section 4
of the Voting Rights Act, 42 U.S.C. §1973b, exempting the County and all
governmental units within the County from the special remedial provisions of
the Voting Rights Act.
10Page 11 WHEREFORE, plaintiff Middlesex County respectfully prays that this Court:
A. Convene a three-judge court, pursuant to 28 U.S.C. §2284 and 42 U.S.C.
§1973b, to hear the claims raised in plaintiff's complaint;
B. Enter a declaratory judgment that plaintiff Middlesex County and all
governmental units within the County are entitled to a bailout from the special remedial
provisions of the Voting Rights Act; and
C. Grant such other relief as may be necessary and proper as the needs of justice
may require.
Respectfully submitted,
For the Plaintiff MIDDLESEX COUNTY:
/s/ J. Gerald Hebert
J. GERALD HEBERT
Attorney at Law
5019 Waple Lane
Alexandria, Va. 22304
(703) 628-4673 (Office)
DC Bar No. 447676
Email: jghebert@comcast.net
11Page 12 “¥
; e
Case NOFev-014e ie Document 1-2 Filed 08/1 712907 Page 1 of TE
CIVIL COVER SHEET
(Rev /05 DC)
I (a) PLAINTIFFS DEFENDANTS 46 Gonza les, US Attorney Cenens
Middlesex County, VA
(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF ¥ Nea lesex
(EXCEPT IN U.S. PLAINTIFF CASES) CREE
(c) ATTORNEYS (FIRM NAME, AD
SS, AND TELEPHONE NUMBER)
and Wan] Kin Asst. Atty Genera |
COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT
(IN U.S. PLAINTIFF CASES ONLY)
Case: 1:07-cv-01485
IL BASIS OF JURISDICTION
(PLACE AN x IN ONE BOX ONLY)
O1 US. Government
Plaing
Vig 2US. Government O 4 Diversity
O3 Federal Question
(U.S. Government Not a Party)
(Indicate Citizenship of Parties
in item II)
Description: Three Judge Court
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
pr i orarr asm mana VEN
SS. @ \c! He re . : “
ar vans ple e ne (103) nesgned To : Hogan, Thomas F.
Alexancdy ig! va 723564 23-4673 ssign. Date : 8/17/2007 _
Ill CITEZEN
FOR PLAINTIFF AND ONE BOX FOR DErENUAIND) Bua, ay eee 2
PTF DFT PTF DFT
Citizen of this State o1 o1 Incorporated or Principal Place o4 o4
of Business in This State
Citizen of Another State O2 02 Incorporated and Principal Place 05 o5
of Business in Another State
Citizen or Subject of a a3 03
Foreign Country Foreign Nation o6 a6
IV. CASE ASSIGNMENT AND NATURE OF SUIT
(Place a X in one category, A-N, that best represents your cause of action and one in a corresponding Nature of Suit)
O B. Personal Injury/
Malpractice
O 310 Airplane
0 315 Airplane Product Liability
0 320 Assault, Libel & Slander
O 330 Federal Employers Liability
Product Liability
0 350 Motor Vehicle
0 355 Motor Vehicle Product Liability
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0 362 Medical Malpractice
O 365 Product Liability
0 368 Asbestos Product Liability
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Injunction
Any nature of suit from any category may
be selected for this category of case
assignment.
*(f Antitrust, then A governs)*
OE. General Civil (Other) OR OF, Pro Se General Civil
ropert
O 210 Land Condemnation
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Q 240 Torts to Land
O 245 Tort Product Liability
Q 290 All Other Real Property
Personal Property
QO 370 Other Fraud
O 371 Truth in Lending
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Bankruptcy
Prisoner Petitions
O §35 Death Penalty
O 550 Civil Rights
Property Rights
O 820 Copyrights
OD 830 Patent
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Federal Tax Suits
defendant
USC 7609
VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.)
Section Y ot The Voting ksh fs Act, Y7 UVSC (979h CeeK ing a ba clavt )
VII. REQUESTED IN
COMPLAINT a
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IF ANY
DATE rig 4
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Case 1:07-cv-01485-TFH
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IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
MIDDLESEX COUNTY, VIRGINIA,
a political subdivision of the
Commonwealth of Virginia,
P. O. Box 358
Saluda, Virginia 23149
)
)
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
ALBERTO R. GONZALES,
)
Attorney General of the
)
United States of America,
)
WAN J. KIM,
)
Assistant Attorney General,
)
Civil Rights Division, United States
)
Department of Justice, Washington, DC,
)
)
Defendants.
)
____________________________________)
Civil Action No.
COMPLAINT FOR DECLARATORY RELIEF UNDER THE VOTING RIGHTS ACT
Middlesex County, Virginia, alleges that:
1. This is an action brought for declaratory relief pursuant to Section 4 of the
Voting Rights Act of 1965, as amended, 42 U.S.C. §1973b (hereinafter
"Section 4"). This Court has jurisdiction over this action pursuant to 28
U.S.C. §1343(a)(4), 28 U.S.C. §2201, 42 U.S.C. §1973b, and 42 U.S.C.
§1973l(b).
2. Plaintiff Middlesex County (“the County”) is a political subdivision of the
Commonwealth of Virginia and a political subdivision of a state within the
meaning of Section 4(a) of the Voting Rights Act, 42 U.S.C. §1973b(a)(1).
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Middlesex County is located at the eastern end of Virginia's Middle Peninsula.
The County is bounded by the Rappahannock River to the north, by the
Chesapeake Bay to the east, by the Piankatank River and Dragon Run Swamp
to the southwest, and by Essex County to the northwest. The County has a
land area of 130 square miles and 135 linear miles of shoreline.
3. Located within Middlesex County is the Town of Urbanna (“the Town”).
Residents of the Town are eligible to participate in town elections and in
county elections.
4. In addition to the County itself, there are elected governmental units that exist
completely in Middlesex County within the meaning of 42 U.S.C.
§1973b(a)(1). One of these is the town government of Urbanna, which is
governed by a Town Administrator, Mayor and 6-member town council.
Another governmental unit operating completely within Middlesex County is
the five-member Middlesex County School Board, which are elected in odd
years to four-year staggered terms from the same districts as members of the
County Board of Supervisors.
5. The Middlesex County Board of Supervisors is the governing body that
formulates policies for the administration of government in Middlesex
County. It is comprised of five members elected from single-member districts
to serve four-year staggered terms. The County Board of Supervisors appoints
a County Administrator to serve as the County's chief administrative officer.
The general day to day operations of Middlesex County are controlled by the
Office of the County Administrator.
2
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6. Middlesex County is a covered jurisdiction subject to the special provisions of
the Voting Rights Act, including Section 5 of the Act. 42 U.S.C. §1973c.
Under Section 5, the County is required to obtain preclearance from either this
Court or from the Attorney General for any change in voting standards,
practices and procedures since the Act’s November 1, 1964 coverage date for
Virginia.
7. Middlesex County was designated as a jurisdiction subject to the special
provisions of the Voting Rights Act on the basis of the determinations made
by the Attorney General that Virginia maintained a “test or device” as defined
by Section 4(b) of the Act on November 1, 1964, and by the Director of the
Census that fewer than 50 percent of the persons of voting age then residing in
the state voted in the 1964 presidential election. 42 U.S.C. §1973b(b). The
“test or device” triggering preclearance coverage under Section 5 was an
article of the Virginia Constitution providing for a literacy test as a
prerequisite for citizens to become electors. Va. Const. Art. II, Sec. 20
(1902). The literacy test was repealed by the Virginia Constitution of 1972.
8. According to the 2000 census, Middlesex County, Virginia has a total
population of 9,932. Of this number, 1,999 persons (or 20.1%) are black and
55 (or .6%) are Hispanic. The voting age population of the County, according
to the 2000 census, is 8,023. Of this number, 1,563 (19.5%) are black. The
Town of Urbanna, according to the 2000 census, has a total population of 543.
Of this number, 19 (3.5%) are black and 3 (.6%) are Hispanic.
3
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9. Like other jurisdictions in the Commonwealth of Virginia, the County does
not collect or maintain voter registration data by race. Current data show,
however, that a significant proportion of the County’s voting age population is
registered to vote. As of November 2006, there were 7,348 registered voters in
Middlesex County.
10. The number of registered voters in the County has steadily risen over the last
few years. In 1998, for example, there were 5,989 registered voters in the
County. By 2003, the number of registered voters had grown to 6,601. The
number of registered voters in the County has continued to grow. As of 2006,
there were 7,348. Thus, from 1998 to 2006, the total number of registered
voters in the County has grown by 23% (from 5,989 in 1998 to 7,348 in
2006).
11. Voter turnout in elections within Middlesex County (i.e., the percentage of
those registered voters who cast ballots) varies according to the offices up for
election. In the last two Presidential elections (2000 and 2004), for example,
75.8% and 76.9% of the County’s registered voters turned out to vote,
respectively. In the General Elections for state and county offices held in
November 1999, 2001, 2003, and 2005, 62.7%, 58.6%, 51.2%, and 54.1% of
the County's registered voters turned out to vote, respectively.
12. There are presently a total of seven polling locations located conveniently to
voters across the County. All polling places in the County are accessible to
voters with physical disabilities.
4
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13. Black candidates have had a long history of electoral success in Middlesex
County. Mr. Frank Jessie, who is Black, was first elected to the Board of
Supervisors in 1979, and won re-election as recently as 1999. A Black
candidate beat a White candidate in the county-wide election for Sheriff in
1997. A Black candidate is running unopposed in the county-wide election for
Commissioner of Revenue this November. The current Vice Chairman of the
Middlesex County Board of Supervisors is Black, having been re-elected in
2003. In 1999, 2001, and 2003, Black candidates for the County Board and
School Board each won. In the 2003 School Board race, a Black candidate
defeated a White candidate.
14. Since its inception in 1965, the Voting Rights Act has allowed States, which
are subject to these special provisions of the Act, to exempt themselves from
coverage under the Act's special remedial provisions, if they can satisfy
standards established in the Voting Rights Act. This exemption process is
known as “bailout”.
15. In 1982, Congress made changes in the exemption standards of the Voting
Rights Act. As amended in 1982, Section 4 of the Voting Rights Act provides
that States, as well as political subdivisions within those States that are
covered under the special provisions of the Act, are entitled to a declaratory
judgment in this Court granting an exemption from the Act's special remedial
provisions if, during the ten years preceding the filing of the action:
A) no test or device has been used either for the purpose or with the effect
of denying or abridging the right to vote on account of race, color, or
membership in a language minority group, within the State or political
subdivision seeking a declaratory judgment;
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B) no final judgment has been entered by any court determining that the
political subdivision has denied or abridged the right to vote on account of
race, color, or membership in a language minority group;
C) no Federal examiners have been assigned to the political subdivision;
D) all governmental units within the political subdivision have complied
with the preclearance provisions of Section 5 of the Voting Rights Act, 42
U.S.C. §1973c; and
E) the Attorney General has not interposed any objection to any proposed
voting change within the political subdivision and no declaratory
judgment has been denied with regard to such a change by this Court
under Section 5.
As amended in 1982, Section 4 of the Act also requires States and political
subdivisions seeking an exemption from the Act's special provisions to
show that, during the pendency of the declaratory judgment action seeking
such exemption:
A) Any voting procedure or method of election within the state or political
subdivision exists which inhibits or dilutes equal access to the electoral
process has been eliminated;
B) Constructive efforts have been made by the political subdivision to
eliminate any intimidation or harassment of persons exercising rights
under the Voting Rights Act; and
C) Expanded opportunities for convenient registration and voting exists
within the State or political subdivision.
16. As described herein, plaintiff Middlesex County has fully complied with the
provisions of Section 4 of the Act.
17. As a political subdivision of the Commonwealth of Virginia, plaintiff
Middlesex County has been subject to certain special remedial provisions of
the Voting Rights Act, including the provisions of Section 5 of the Act, 42
U.S.C. §1973c. Under Section 5 of the Act, known as the "preclearance"
provisions, covered jurisdictions, including Middlesex County, are required to
seek and obtain preclearance from either this Court or from the United States
Attorney General of any change affecting voting, and such preclearance must
be obtained prior to implementation.
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18. Since 1996, Middlesex County has made 14 preclearance submissions to the
United States Department of Justice pursuant to Section 5 of the Voting
Rights Act, 42 U.S.C. §1973c. Of these 14 submissions, all were made by the
County. None were objected to by the Department. Two were withdrawn.
19. Within the ten years preceding the filing of this action, Middlesex County has
not enforced any voting changes prior to Section 5 preclearance. Nor has the
Attorney General interposed a Section 5 objection to any change affecting
voting in Middlesex County within the past ten years. The County has not
sought judicial preclearance of any voting changes in this Court.
20. Voter registration opportunities in the County are readily and equally
available to all citizens. The voter registration office for the County is located
in the Woodward Building with other county offices in Saluda, a location that
is convenient for all County residents. The voter registration office is open
daily from 8:30 a.m. to 4:30 p.m.
21. Voters in Middlesex County may also register by mail, and voter registration
applications are available at locations convenient to voters in the County. The
opportunity to become a registered voter in Middlesex County is also
available under the National Voter Registration Act (the “NVRA”) at the
Department of Motor Vehicle (“DMV”) offices and at public assistance
agencies in Middlesex County. The Middlesex County General Registrar
makes voter registration applications available at the County social services
office, County health department, all of the libraries in the County, and all of
the post offices in the County. The registrar typically does a presentation
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about voting and registers high school seniors at the public high school in the
spring. While in past years most voters became registered at the County’s
voter registration office, the implementation of the NVRA in Virginia over the
last decade has changed the origin of many registration applications. Today,
many of the County's new registrants register through applications submitted
through the DMV and by mail, and the opportunities for persons to register to
vote in Middlesex County has been made more convenient and available as a
result of implementation of the NVRA.
22. Voter registration opportunities in the County are readily and equally
available to all citizens.
23. Middlesex County has a three-member Electoral Board, appointed pursuant to
Virginia state law. The Electoral Board is comprised of one black member and
two white members. No person recommended to serve as a poll official has
been rejected by the Electoral Board for at least the preceding ten years. The
Electoral Board Secretary, Dr. Chauncey E. Mann, Jr., is Black, and has
served on the Board since 1990.
24. In the last five county-wide elections (General, Primary and Special 2006,
General and Primary 2005) Middlesex County has employed 201 poll
workers, of whom 33 (or 16.4%) are black. The percentage of black poll
workers (16.4%) is slightly below the percentage of Middlesex County’s
black voting age population (19.5%). Black interns have participated in the
General Voting Registrar’s summer internship program.
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25. No person in Middlesex County has been denied the right to vote on account
of race, color, or membership in language group for at least the preceding ten
years.
26. No "test or device" as defined in the Voting Rights Act (42 U.S.C.
§1973b(c)) has been used in Middlesex County as a prerequisite to either
registering or voting for at least the preceding ten years.
27. No final judgment of any court of the United States has determined that
denials or abridgments of the right to vote on account of race or color have
occurred in Middlesex County, nor has the County entered into any consent
decree, settlement or agreement resulting in any abandonment of a voting
practice challenged on such grounds. There are no pending actions against
Middlesex County alleging such denials or abridgments of the right to vote.
28. No voting practices or procedures have been abandoned by the County or
challenged on the grounds that such practices or procedures would have either
the purpose or the effect of denying the right to vote on account of race or
color.
29. Middlesex County has not employed any voting procedures or methods of
election that inhibit or dilute equal access to the electoral process by minority
voters in the County. Minority voters in Middlesex County are not being
denied an equal opportunity to elect candidates of their choice to the County
Board of Supervisors, to the County School Board, or to the Urbanna Town
Council.
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30. Federal examiners have never been appointed or assigned to Middlesex
County under Section 3 of the Voting Rights Act, 42 U.S.C. §1973a.
31. Because there has not been any known intimidation or harassment of persons
exercising rights protected under the Voting Rights Act in Middlesex County
within the last ten years, neither the County nor any of its governmental units
have had any occasion to take any action eliminating such activity.
32. Pursuant to 42 U.S.C. §1973b, the County has “publicize[d] the intended
commencement …of [this] action in the media serving [the County] and in the
appropriate United States post offices.” A Notice of Intent to Seek a Bailout
was published by the County in the Southside Sentinel, the County’s weekly
newspaper on March 22, March 29, and April 5, 2007. This Notice was also
posted at all post offices in the County, at the County courthouse in Saluda, at
the County social services office, and at the office of the General Registrar of
Voters. The aforementioned Notice also advertised that a public hearing
would be held regarding the bailout on April 17, 2007, at 7:30 p.m. At the
April 17, 2007 public hearing, not a single member of the public appeared,
and thus no one spoke in opposition to the bailout or raised any questions
about the County’s proposed bailout.
33. The allegations set forth in paragraphs 17 through 32, above, if established,
entitle plaintiff Middlesex County to a declaratory judgment under Section 4
of the Voting Rights Act, 42 U.S.C. §1973b, exempting the County and all
governmental units within the County from the special remedial provisions of
the Voting Rights Act.
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WHEREFORE, plaintiff Middlesex County respectfully prays that this Court:
A. Convene a three-judge court, pursuant to 28 U.S.C. §2284 and 42 U.S.C.
§1973b, to hear the claims raised in plaintiff's complaint;
B. Enter a declaratory judgment that plaintiff Middlesex County and all
governmental units within the County are entitled to a bailout from the special remedial
provisions of the Voting Rights Act; and
C. Grant such other relief as may be necessary and proper as the needs of justice
may require.
Respectfully submitted,
For the Plaintiff MIDDLESEX COUNTY:
/s/ J. Gerald Hebert
J. GERALD HEBERT
Attorney at Law
5019 Waple Lane
Alexandria, Va. 22304
(703) 628-4673 (Office)
DC Bar No. 447676
Email: jghebert@comcast.net
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