Annexation Reforms and the Voting Rights Act
February 21, 2012
North Carolina Institute for Constitutional Law
During the 2011 Legislative Session, the new majority of the North Carolina General Assembly ushered in a series of dramatic reforms to North Carolina’s municipal annexation laws. While keeping many of the existing procedures in place, the laws made substantive and procedural changes that are likely to slow the expansion of suburban and urban areas in North Carolina. While annexation is frequently viewed as a property rights issue, it also shapes municipal tax-rates, urban planning, and the racial and socio-economic composition of urban areas. As a result of the latter, municipal annexation is a government act closely monitored by the U.S. Department of Justice and federal courts under the Voting Rights Act. This memorandum explores some of the preclearance issues arising under the Voting Rights Act in light of the Annexation Reform Act of 2011.
A. What is § 5 of the Voting Rights Act in general?
Under § 5 of the Voting Rights Act of 1965 [hereinafter “VRA”], covered jurisdictions must obtain preclearance from either the United States District Court for the District of Columbia, or from the United States Attorney General, prior to enforcing any new “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U.S.C. 1973c(a). Preclearance will be denied if the purpose or the effect of the change is to deny or abridge the right to vote on account of race or color. Id. Voting is broadly defined and includes,
[A]ll action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.
42 U.S.C. 1973l(c)(1). The “standard, practice, or procedure” will be analyzed both in terms of present and future effect since a discriminatory purpose or effect could manifest well after the initial implementation. City of Pleasant Grove v. U.S., 479 U.S. 462, 464, 471 (1987).
B. What does annexation have to do with the Voting Rights Act?
Both annexation and deannexation are voting changes requiring preclearance. 28 C.F.R. 51.61(a). See Perkins v. Matthews, 400 U.S. 379, 388 (1971) (“Changing boundary lines by annexations which enlarge the city’s number of eligible voters also constitutes the change of a ‘standard, practice, or procedure with respect to voting.’”). Annexation elicits concern because it “alter[s] the composition of a jurisdiction’s electorate.” 28 C.F.R. 51.61(a); see City of Rome v. United States, 446 U.S. 156, 187 (1980) (“By substantially enlarging the city’s number of white eligible voters without creating a corresponding increase in the number of Negroes, the annexation reduced the importance of the votes of Negro citizens who resided within the pre-annexation boundaries of the city.”).
There is no change to the composition of the jurisdiction’s electorate if annexation does not take place; however, it is possible that a failure to annex a given area may also invoke the VRA. In City of Pleasant Grove v. United States, 479 US. 462 (1987), the United States Supreme Court suggested that minority communities have a right to annexation; however, we have had no actual holding to that effect. In refusing to find a violation under § 2 of the VRA, the eleventh circuit in Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999) suggested that it is not the proper role of the judicial to be proscribing annexation under the VRA. “[I]t is one thing for a court sitting in equity to proscribe policymakers from employing unambiguously racial bases for decisionmaking and to order government entities to make annexation decisions on race-neutral groups, but it is quite another to force a municipality to expand its physical boundaries by annexation.” Id. at 1200.
There is no question that North Carolina municipal annexations performed pursuant to Chapter 160A, Article 4A require preclearance under the VRA. What is less obvious is whether the petition to deny the annexation ordinance under G.S. 160A-58.55(i) is also a “standard, practice, or procedure with respect to voting” requiring preclearance. The Annexation Reform Act limits petitioners to real property owners of the parcel to be annexed. Residents who rent land in the parcel do not qualify. If minority residents of the parcel are less likely to own property, the effect of the procedure may be to deny or abridge the right to vote on account of race or color.
C. When is Preclearance NOT required?
Ultimately, the existing case law suggests that petitions under N.C.G.S. 160A-58.55(i) do not require preclearance. The U.S. Supreme Court held that the VRA was aimed at “the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” Allen v. State Board of Elections, 393 U.S. 544, 565 (1969) (citing 42 U.S.C. § 1973l(c)(1)). Yet, the Court has limited VRA application beyond the confines of election law. See Presley v. Etowah, 502 U.S. 491, 509 (1992) (“§ 5 is unambiguous with respect to the question whether it covers changes other than changes in rules governing voting. It does not.”). In Presley, the U.S. Supreme Court considered changes to the distribution of power among elected officials in two Alabama counties. Id. at 506. One county resolution involved a reduction in the authority of commissioners to direct road improvement funds. Id. at 497. Appellants argued the change was “a standard, practice, or procedure with respect to voting” requiring preclearance under the VRA because “[a] citizen casting a ballot for a commissioner today votes for an individual with less authority than before the resolution, and so, it is said, the value of the vote has been diminished.” Id. at 504. The Supreme Court rejected this interpretation on the grounds that the county action was not a change with respect to voting:
The Etowah County Commission’s Common Fund Resolution is not a change within any of the categories recognized in Allen or our later cases. It has no connection to voting procedures: it does not affect the manner of holding elections, it alters or imposes no candidacy qualifications or requirements, and it leaves undisturbed the composition of the electorate. It also has no bearing on the substance of voting power, for it does not increase or diminish the number of officials for whom the electorate may vote. Rather, the Common Fund Resolution concerns the internal operations of an elected body.
Id. at 503.
In 2003, a federal district court in Texas considered procedural changes to the State’s redistricting process as possibly affecting voting within the meaning of the VRA. Barrientos v. State of Texas, 290 F. Supp. 2d 740, 741 (S.D. Tex. 2003). The court reasoned, “what will directly affect the voters of this State is a redistricting bill, not the mere consideration of such a bill or the process by which it comes to the floor of the Texas Senate.” Id. at 741. Subsequent holdings from the same court have echoed this holding in that “a standard, practice, or procedure” must directly link to voting. See Lopez v. City of Houston, No. H-09-0420, 2009 U.S. Dist. LEXIS 43430 (S.D. Tex. May 22, 2009), aff’d, 617 F.3d 336 (5th Cir. 2010). An indirect “standard, practice, or procedure” that forms a tenuous connection to voting will not suffice to invoke the VRA. Id. n. 27 (“Just because a certain change is linked to another change that has a direct effect on voting does not mean that the certain change also has a direct effect on voting.”). In Lopez, the court rejected plaintiffs’ allegation that a resolution setting the population of the City of Houston at roughly 1.9 million based on 200 federal census estimates was a covered change. According to plaintiffs, the resolution was a change “with respect to voting” because the City Charter required an increase in the size of the City Council from fourteen to sixteen members when the population of Houston exceeded 2.1 million.
The petition process at issue in North Carolina’s Annexation Reform Act is not a “standard, practice, or procedure with respect to voting.” It is conceptually similar to the resolution in Lopez. The petition itself does not dictate whether or not an annexation will take place. It is a procedural step in the annexation process akin to the determination that the parcel has met characterization requirements. If 60% of the property owners oppose the annexation, the annexation may not take place. Similarly, if less than one-eighth of the aggregate external boundaries of the parcel do not coincide with the municipal boundary, the annexation may not take place. Thus, like the procedural changes in Barrientos and Lopez, the petition has only an indirect effect on voting.
D. How is the preclearance requirement usually enforced?
The discussion above operates on the assumption that covered jurisdictions request preclearance. Whether the cause is intentional avoidance, or a misunderstanding of the need to preclear a given act, covered jurisdictions occasionally fail to file for preclearance. The sheer number of jurisdictions covered by § 5 makes it difficult for the U.S. Department of Justice to enforce preclearance requirements. There is no explicit language in the VRA authorizing private parties bring suit to enforce the act. Allen, 393 U.S. at 554-55. Nonetheless, the U.S. Supreme Court in Allen found that private parties may seek a declaratory judgment in federal district court that the new “standard, practice or procedure” requires preclearance under § 5. Id. Plaintiffs may not request a ruling on the substance of the VRA. Id. at 555 n. 9. In a suit brought by private parties, the court may only consider whether the “standard, practice, or procedure” requires preclearance, it may not consider whether the “standard, practice, or procedure” has a discriminatory purpose or effect. Id. Should a federal district court find preclearance is required, the same private parties have standing to seek an injunction against further enactment of the “standard, practice, or procedure.” Id. at 554-55.
Whereas preclearance may only be obtained from the United States District Court for the District of Columbia, plaintiffs seeking a determination on the issue of preclearance may bring their claims in any federal district court. Id. at 560. Since the substance of the VRA is not at issue (discriminatory purpose or effect), the Supreme Court has not held plaintiffs, who may lack the resources to bring suit so far away, to the District of Columbia as expressly outlined in § 5. Id.
28 C.F.R. 51.11 states that upon an objection by the Attorney General, a covered jurisdiction may file for preclearance with the United States District Court for the District of Columbia. The federal district court will not review the determination of the Attorney General but conduct an independent analysis (as if the covered jurisdiction had applied to the federal district court in the first place). If the federal district court fails to object to the “standard, practice, or procedure,” the jurisdiction may continue to enforcement. There is, however, no corresponding provision for if the Attorney General fails to object to a “standard, practice, or procedure” in the first instance. The lack of additional clarity may be for the obvious reason that no covered jurisdiction seeking preclearance from the U.S. Attorney General would object to it once offered. However, as above, interested private parties may desire to challenge the Attorney General’s determination.
The Attorney General’s “interpretation of the Voting Rights Act is entitled to considerable deference.” City of Pleasant Grove v. U.S., 479 U.S. 462, 468 (1987). Viewing the § 5 of the VRA as an “extraordinary remedy”, the U.S. Supreme Court rejected judicial review of an Attorney General’s failure to object. Morris v. Gressette, 432 U.S. 491, 501 (1977).
The congressional intent is plain: The extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission. Although there was to be no bar to subsequent constitutional challenges to the implemented legislation, there also was to be “no dragging out” of the extraordinary federal remedy beyond the period specified in the statute. Switchmen's Union v. National Mediation Board, 320 U.S., at 305, 64 S.Ct., at 99. Since judicial review of the Attorney General's actions would unavoidably extend this period, it is necessarily precluded.
Id. at 504-05. 28 C.F.R. 51.41(b) reiterates that “the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change.” The “standard, practice, or procedure” may still be challenged under other provisions of the VRA or on other state, federal, or constitutional grounds. Preclearance does not rubber the stamp the activity for legality, it simply affirms that the “standard, practice, or procedure” does not violate § 5 of the VRA.
§ 2 of the VRA creates a cause of action applicable to every jurisdiction, whether or not covered by § 5.
No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color[.]
42 U.S.C. 1973(a). Plaintiffs filing suit under § 2 must still establish adequate standing. A generalized grievance will not suffice. See Dillard v. Chilton County Comm’n, 495 F.3d 1324, 1335 (11th Cir. 2007) (citing Lance v. Coffman, 549 U.S. 437, 442 (2007) (per curiam)).
In Biltmore Square Assoc. v. City of Asheville, 113 N.C. App. 459, 465, 439 S.E.2d 211, 214 (1994), petition for discretionary review denied, 336 N.C. 314, 445 S.E.2d 392 (1994), the North Carolina Court of Appeals found that standing did not exist under the VRA where petitioners failed to demonstrate municipal voter registration, and where petitioners were not members in a racial or ethnic minority. (“petitioners have failed to show that they were asserting their own legal rights and interests [under the VRA] and not those of third parties.”). The Court of Appeals relied on Newman v. Voinovich, 789 F. Supp. 1410 (S.D. Ohio 1992):
For the plaintiff to demonstrate standing under the Voting Rights Act he must demonstrate that (1) he has personally suffered or will suffer some distinct injury-in-fact as a result of defendant's putatively illegal conduct; (2) the injury can be traced with some degree of causal certainty to defendant's conduct; (3) the injury is likely to be redressed by the requested relief; (4) the plaintiff must assert his own legal rights and interests, not those of a third party; (5) the injury must consist of more than a generalized grievance that is shared by many; and (6) the plaintiff's complaint must fall within the zone of interests to be regulated or protected by the rule of law in question.
Id. at 1415 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-77 (1982)). Therefore, while § 2 provides a viable alternative to challenge a given act under the VRA, its usefulness is limited by standing restraints. Few parties have the ability to advance a claim.
The Annexation Reform Act of 2011 fundamentally changes the way in which North Carolina municipalities may progress towards annexation. The system protects the rights of property owners by granting collective authority to deter undesired annexations. Furthermore, by mandating that municipalities pick up the cost of annexation, the Act provides a disincentive for municipal consumption of rural and semi-rural land. Despite the significance of the changes implemented, they are largely procedural changes which, if anything, have only slowed the rate of annexation in North Carolina. While the VRA mandates administrative or judicial preclearance of any “standard, practice, or procedure with respect to voting,” its reach is not infinite. Only those standards, practices, or procedures that directly influence voting rights require federal review. The anti-annexation petition process, at most, has an indirect effect on voting rights only by a connection to the annexation process itself.
 Related whitepapers are available at NCICL.org. One whitepaper outlines the substantive and procedural reforms of the Annexation Reform Act. Another whitepaper explores the standing of municipalities to sue the State over annexation reforms.
 This would include local government entities. Generally, municipalities in North Carolina do not have standing to question the constitutionality of a statute the municipality claims benefits under. See Appeal of Martin, 286 N.C. 66, 74, 209 S.E.2d 766, 772 (1974) and accompanying memorandum for further detail.