Under Title III, the Attorney General is authorized to institute a civil suit upon receipt of a written, signed complaint if it is believed that the complaint is meritorious, and upon certification that the complainants are unable to initiate and maintain appropriate legal proceedings for relief and that the institution of the action will materially further the orderly progress of desegregation in public facilities. The statute expressly requires the complaint in such a suit to be signed by the Attorney General. The United States Attorneys' concurrent enforcement responsibilities under Title III are discussed in USAM 8-2.180.
The use of force or threats of force to injure, intimidate, or interfere with a person because of his/her race, color, or national origin and because of his/her use of a public facility constitutes a violation of 18 U.S.C. § 245(b)(2)(B), as well as Title III of the 1964 Act. The determination whether to proceed civilly or criminally will be made by the Assistant Attorney General, Civil Rights Division, or his/her designee, in consultation with the United States Attorney.
The use of force or threats of force, physical obstruction, or property damage with the intent to injure, intimidate, or interfere with a person seeking to obtain or provide reproductive health services violates the Freedom Of Access To Clinic Entrances Act, 18 U.S.C. § 248 (1994) (FACE). FACE does not prohibit speech or expressive conduct protected by the First Amendment. The decision to proceed civilly or criminally will be made by the Assistant Attorney General, Civil Rights Division, or his/her designee, in consultation with the United States Attorney. For additional materials concerning FACE litigation, see the Civil Rights Resource Manual at 6 et seq.
The Civil Rights Division's Voting Section safeguards the right to vote of racial and language minorities, disabled and illiterate persons, overseas citizens, persons who change their residence shortly before a presidential election, and persons 18 to 20 years of age. The Voting Section has enforcement responsibility for the Voting Rights Act of 1965, as amended, the National Voter Registration Act of 1993, the Uniformed and Overseas Citizens Absentee Voting Act, and the Voting Assistance for the Elderly and Handicapped Act. Certain portions of these statutes are set forth in the Civil Rights Resource Manual at 13.
The United States Attorney should promptly bring to the attention of the Chief of the Voting Section any information or complaints indicating the possibility of racial discrimination in voting or of infringements of the right to vote under the federal laws enforced by the Voting Section. The United States Attorney should consult with the Chief of the Voting Section prior to requesting any investigation into possible voting rights violations. Telephonic authorization to initiate an investigation may be obtained in cases where prompt action is necessary.
Racial discrimination in voting, in whatever form, at whatever stage of the electoral process, and whether or not federal elections are involved, is prohibited by 42 U.S.C. § 1971 and by Sections 2 and 11 of the Voting Rights Act, 42 U.S.C. §§ 1973, 1973i. For a discussion of the history and a general overview of the Voting Rights Act of 1965, see the Civil Rights Resource Manual at 19.
Section 201 of the Voting Rights Act, 42 U.S.C. § 1973aa, prohibits state and local jurisdictions from requiring voters to be able to read and write. The test ban applies to voting in federal, state, and local elections and to voting in primaries as well as in general or special elections. Banned are not only literacy tests but also understanding tests, educational achievement requirements, moral character requirements, and requirements that registrants prove their qualifications by having other persons vouch for them.
Section 208 of the Voting Rights Act, 42 U.S.C. § 1973aa-6, authorizes illiterate and disabled voters to receive assistance from the person of their choice (but prohibits such voters from receiving help from their employers or leaders of their unions).
Although Congress did not explicitly authorize the Attorney General to enforce the voter assistance provision, violations of it will usually constitute violations of other provisions of federal law that the Attorney General is authorized to enforce.
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, bars voting practices that have a discriminatory result or intent. It is the main litigation tool available for attacking electoral systems and redistricting plans that dilute minority voting strength, i.e., that deny minorities a fair opportunity to elect candidates of their choice.
The Voting Section defends from unjustified attack redistricting plans designed to provide minority voters fair opportunities to elect candidates of their choice and endeavors to achieve racially fair results where courts find, following Shaw v. Reno, 113 S.Ct. 286 (1993), and Johnson v. Miller, 115 S.Ct. 2475 (1995), that redistricting plans constitute unconstitutional racial gerrymanders.
Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, requires specially covered jurisdictions to preclear any voting changes they make, from polling place relocations to congressional redistrictings, by demonstrating, either to the Attorney General (who has delegated this responsibility to the Assistant Attorney General for Civil Rights) or to the United States District Court for the District of Columbia, that the change is not discriminatory, either in purpose or in effect.
Section 5 applies (as a result of determinations made under Section 4) to all of nine states and parts of seven others. The appendix to the Attorney General's Section 5 guidelines, 28 C.F.R. Part 51, lists the jurisdictions subject to the Section 5 preclearance requirement. See the Civil Rights Resource Manual at 30 for a list of judicial districts containing jurisdictions subject to Section 5. The preclearance requirement applies to a few other jurisdictions by court order under Section 3(c) of the Voting Rights Act, 42 U.S.C. § 1973a(c).
Section 5 enforcement also involves litigation: the Voting Section defends declaratory judgment actions brought by jurisdictions (usually following an objection) to gain judicial preclearance and files enforcement actions to prevent the implementation of unprecleared voting practices. Three-judge courts are required for both kinds of actions.
Jurisdictions seeking to implement voting changes must submit the changes directly to the Voting Section (see 28 C.F.R. § 51.24 for address). Voting changes should not be submitted for review to the United States Attorney. United States Attorneys who receive Section 5 submissions should immediately alert the Voting Section, by telephone, EMail, or fax, and then forward the submission to the Voting Section by mail (and by fax, if it is an urgent matter).
For information on termination of coverage and bailout, see the Civil Rights Resource Manual at 13.
Section 6 of the Voting Rights Act, 42 U.S.C. § 1973d, authorized federal registration of voters, through certification by the Attorney General, where local registrars would not open voter registration to blacks. Because of the success of the Act, the Department has not needed to request voter registration by federal examiners in many years, and the implementation of the National Voter Registration Act may make further federal voter registration unnecessary. Approval from the Office of Personnel Management must be obtained by a jurisdiction before a federally registered voter can be purged from the local voter lists. Federal examiners may be contacted on election day to take complaints of discrimination against federally listed voters.
For information on termination of coverage and bailout, see the Civil Rights Resource Manual at 13.
Section 8 of the Voting Rights Act, 42 U.S.C. § 1973f, authorizes the Department to request the assignment of federal observers (who generally are employees of the Office of Personnel Management) to monitor polling place activities on election day. Observers monitor the treatment inside the polls not only of blacks but also of Native Americans, Chinese Americans, and Hispanics. Federal observers can be sent only to jurisdictions that (1) are covered under Section 4 -- these are the same jurisdictions that are subject to the preclearance requirement of Section 5 -- and (2) are certified by the Attorney General under Section 6 for the assignment of federal examiners or that are under a Section 3(a) court order.
Federal observers are used when it appears likely that minority voters will be denied the right to vote, denied needed voter assistance (including minority language assistance) in casting their ballots, or otherwise discriminated against in polling place activities. Observers are authorized to watch all polling place activities, including assistance to voters and the counting of ballots, and the information they obtain can be given only to their supervisors and to Department attorneys. Observers are not allowed to give advice or direction to anyone, including poll officials, poll watchers and voters, nor do observers intervene or participate in the conduct of elections in any manner. When observers are present in a county to monitor an election, one or more Department attorneys (usually from the Voting Section) are also present to act as liaison with local officials and minority leaders and to take corrective action based on the information provided by the observers.
The decision to send federal observers to a county for a particular election is made by the Assistant Attorney General, Civil Rights Division, on the basis of pre-election surveys conducted by Voting Section attorneys and after consultation by the Voting Section with United States Attorneys.
For information on termination of coverage and bailout, see the Civil Rights Resource Manual at 13.8-2.280 Minority Language (Section 4(f)(4) and Section 203(c))
As amended in 1975, 1982, and 1992, Sections 4(f)(4) and 203(c) of the Voting Rights Act, 42 U.S.C. §§ 1973b(f)(4) and 1973aa-1a(c), require certain jurisdictions (based on formulas in the Act) to conduct elections in the languages of one or more language minority groups (American Indians, Asian Americans, Alaskan Natives, and persons of Spanish heritage) as well as in English. Covered jurisdictions are listed in the appendix to 28 C.F.R. Part 55, the Attorney General's minority language guidelines. See the Civil Rights Resource Manual at 30 for a list of judicial districts containing jurisdictions subject to the Act's minority language requirements.
The minority language requirements apply to all phases of the electoral process, from voter registration to assistance at the polls; to federal, state, and local elections, and to primary, general, and special elections. The basic requirement is that affected jurisdictions take whatever steps are necessary to enable minority language citizens to participate effectively in the electoral process. Enforcement of the minority language requirements through lawsuits and through the Section 5 preclearance process have resulted in the adoption of detailed minority language election information programs in counties in the Southwest and California and in New York City.
For further information with respect to the application of the minority language requirements and the Attorney General's interpretation of the duty imposed by these requirements, see 28 C.F.R. Part 55, Implementation of the Provisions of the Voting Rights Act Regarding Language Minority Groups, in the Civil Rights Resource Manual. For information on termination of coverage and bailout, see the Civil Rights Resource Manual at 13.
A three-judge court is required for Section 203(c) enforcement but not for Section 4(f)(4) enforcement.
In voting rights litigation (both Departmental and private), Section 3 of the Voting Rights Act, 42 U.S.C. § 1973a, authorizes courts to impose the preclearance and federal examiner provisions on jurisdictions not otherwise subject to them, and if a court has ordered the federal examiner remedy for a jurisdiction, the Attorney General is authorized to request the use of federal observers in that jurisdiction.
United States Attorneys have primary enforcement responsibility for the minority language requirements in jurisdictions covered by Section 203 only, which are not subject to preclearance, examiner, and observer provisions of the Voting Rights Act. The affected jurisdictions are listed in 28 C.F.R. Part 55. The Voting Section should be apprised by United States Attorneys on a regular basis of the Section 203 compliance program activities they are pursuing in their districts. Before any Section 203 suit is filed, a memorandum justifying the suit and a copy of the proposed complaint should be forwarded to the Assistant Attorney General, Civil Rights Division, for approval.
Under the 24th Amendment and Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the payment of a poll tax cannot be required as a prerequisite to voter registration or voting. The Attorney General is authorized to seek civil relief against the imposition of a poll tax by Section 10 of the Voting Rights Act, 42 U.S.C. § 1973h.
Section 301 of the Voting Rights Act, 42 U.S.C. § 1973bb, authorizes the Attorney General to enforce the 26th Amendment, which prohibits the denial (on account of age) of the right of vote of anyone over the age of 18. A three-judge court is required.
For information on the Voting Assistance for the Elderly and Handicapped Act, see theCivil Rights Resource Manual at 14. For information on the National Voter Registration Act of 1993 (Motor Voter Law), see the Civil Rights Resource Manual at 15. For information on the Uniformed and Overseas Citizens Absentee Voting Act, see the Civil Rights Resource Manual at 16. For information on Absentee Voting for President, see the Civil Rights Resource Manual at 17.
For information on how to contact the Voting Section, see the Civil Rights Resource Manual at 18.
State and local officials are required to retain and preserve all records or papers in their possession in connection with registration or other requisites for voting in any general, special, or primary election for federal office. The record must be preserved for a period of 22 months from the date of the particular election. The duty to preserve devolves upon any other person to whom the records may be delivered.
The person having control, custody, or possession of the records shall, upon a demand in writing by the Attorney General or the Attorney General's representative, make the records available for inspection, reproduction and copying. It should be noted that the records must be made available by anyone having custody, whether it be a state executive official or a judicial or quasi-judicial body.
The Disability Rights Section (DRS) investigates and litigates cases under Titles I, II, and III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, a comprehensive civil rights statute for persons with disabilities. Title I prohibits discrimination on the basis of disability in employment; Title II prohibits such discrimination in the provision of all programs, activities, and services of state and local government, including public transportation; and Title III prohibits such discrimination by public accommodations, commercial facilities, and entities that offer courses or examinations related to professional or educational certification. Titles II and III also require all newly constructed or altered covered facilities to comply with ADA accessibility standards. A more detailed discussion of the ADA is contained in the publication Civil Rights, available from the Office of Legal Education Litigation Series in hard copy and as part of the USABook electr
onic library.
Allegations of discrimination by state or local government employers under Title I (which are also covered by Title II) are investigated by the Equal Employment Opportunity Commission (EEOC), and referred to the DRS for litigation if necessary. The EEOC retains for litigation Title I matters that involve private employers. Allegations under Titles II and III are investigated and litigated by the Civil Rights Division. Remedies and enforcement procedures for Title I are those provided by Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, and include injunctive relief and compensatory damages with certain prescribed limits. Punitive damages are not available against public employers. Remedies and procedures for enforcement under Title II parallel those available pursuant to Section 504 of the Rehabilitation Act of 1973, and include injunctive relief and compensatory damages. The remedies available under Title III in litigation initiated by th
e Division include injunctive relief, compensatory damages, and civil penalties of up to $50,000 for a first violation, and $100,000 for any subsequent violation.
The DRS has primary responsibility for all of the Department's cases and matters arising under Titles I, II, and III. The DRS coordinates closely with United States Attorneys' offices in all of its cases. In addition, specific United States Attorneys' offices (USAOs), which are participating in a pilot ADA enforcement program, have taken primary responsibility for many ADA cases in their districts. This program is coordinated by the DRS. In addition, all USAOs can facilitate the DRS's effort by referring any ADA complaints they receive to the DRS, and by notifying the DRS of any private ADA lawsuits so that the Department may consider intervention or amicus participation.
United States Attorneys' offices should make efforts to coordinate the positions taken by the Department as defendant in cases involving allegations of disability discrimination (e.g., cases brought under the Rehabilitation Act of 1973), with the positions taken in the Department's affirmative ADA litigation and other defensive litigation handled by the Civil Division. If you become aware of such cases, please contact the Appellate Sections of the Civil Rights Division and the Civil Division.
The DRS is also responsible for providing technical assistance to individuals and entities affected by the ADA (as mandated under Section 504 of the Act), for coordinating ADA technical assistance government-wide, and for the certification of state or local building codes under Title III (pursuant to section 308 of the Act). For information on the DRS's ADA Technical Assistance Program, see the Civil Rights Resource Manual at 31.
The DRS certifies state and local accessibility codes under Title III. See the Civil Rights Resource Manual at 32.
The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) investigates and prosecutes cases of employment discrimination under the Immigration and Nationality Act (INA). The Office was created by Congress in response to the concern that civil and criminal sanctions imposed by the Immigration Reform and Control Act of 1986 (IRCA) might result in employment discrimination against individuals who look or sound "foreign" or who are not U.S. citizens. Injured parties may file charges based on alleged citizenship status or national origin discrimination, document abuse (i.e., overdocumentation in the employment eligibility verification process), or retaliation with OSC. OSC is responsible for investigating and litigating such claims. OSC also initiates independent investigations based on information it may obtain from a charge, an independent source or referrals from other government agencies. These independent investigations usually involve pattern or p
ractice allegations.
Complaints are tried before specially designated Administrative Law Judges (ALJ), whose decisions are appealable directly to the U.S. Circuit Courts of Appeal. Final decisions and subpoenas issued by an ALJ are enforceable in U.S. District Court. OSC will coordinate these district court cases with the appropriate United States Attorney's Office.
OSC also has an active public outreach component that publishes educational materials and provides training concerning the employment discrimination provisions of the INA. OSC's public outreach also includes employee and employer hotline numbers (800-255-7688 or 800-255-8155, respectively, or 800-362-2735 (TDD line)) with information about the law, a fax-back feature, and attorneys and other office personnel (including Spanish speakers) who are available to answer questions about the law.