The Resolution of Election Disputes: Legal Principles that Control Election Challenges Most important for our discussion here is the provision that stopped the practice by which officials would adopt a new discriminatory voting practice after a court had enjoined a discriminatory voting practice. Under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, whenever a change in a voting practice or procedure is made by a specially covered jurisdiction or any entity within a specially covered county (such as a school board or city), that voting change is legally unenforceable unless the entity proves that the change has neither the purpose nor the effect of discriminating on the basis of race, color or membership in a language minority group.20 This finding can be obtained by either: • Winning a declaratory judgment lawsuit in a Washington, D.C., federal district court, or • Getting a determination from the U.S. Attorney General. In that lawsuit or request to the Attorney General, the jurisdiction that wants to implement the voting change has the burden of proving that the change is nondiscriminatory. In other words, Section 5 of the Voting Rights Act freezes voting practices and procedures in specially covered jurisdictions until the jurisdiction can prove that the change in voting practice or procedure it wants to make does not discriminate on the basis of race, color or membership in a language minority group. If the jurisdiction does not offer sufficient proof to the court or the U.S. Attorney General that the voting change it wants to make will not have a discriminatory purpose or effect, the court will deny the jurisdiction’s request for declaratory judgment, or the Attorney General will object to the implementation of the change. No longer do the victims of racial discrimination have to go through the lengthy and expensive process of preparing and pursing a lawsuit seeking to enjoin each newly instituted discriminatory voting practice and procedure in a specially covered jurisdiction. Now, the officials who institute those voting practices and procedures have to make the effort. By shifting the burden of proof, this single section in a single federal law can prevent racial discrimination in voting before it happens: it shifts the advantage of time and inertia from the people who would discriminate against racial and language minority group members to the people who would be their victims.21 E. Official actions and results are presumed to be valid. Other than the above unique exception, it may seem axiomatic to say that, as in most civil lawsuits or administrative actions, the plaintiff or complainant filing an election challenge has the burden of proof and must prove his or her case by a preponderance of the evidence. But in election challenges, the burden is even greater because the complaint often is filed against election officials or otherwise impugns their integrity. And that brings up a second hurdle of evidence that the challenger has to overcome: there is a strong presumption of regularity on the part of officials and official actions, and that presumption must be overcome if the court is to rule in favor of the plaintiff. The need to satisfy the burden of proof was central to the claim of a candidate for a Florida state judgeship in Boardman v. Esteva, 323 So.2d 259 (Fla. 1975). Edward F. Boardman had been declared the winner over Henry Esteva on the basis of the 3,389 absentee votes cast. Mr. Esteva had received 404 more votes Later, members of language minority groups were added to those protected by the Voting Rights Act. Because of the expense and effort involved in bringing a lawsuit in Washington, D.C., nearly all changes in voting practices and procedures made by specially covered jurisdictions are submitted to the U.S. Attorney General for review and determination. Under the statute, the U.S. Attorney General has 60 days to render a decision on each of the thousands of voting changes that are received every year. 42 U.S.C. § 1973c. The decision of the U.S. Attorney General not to object to a voting change is not reviewable. It is crucial, therefore, that the U.S. Justice Department’s decisions not be influenced by political or other nonsubstantive factors. After an objection by the Attorney General, a lawsuit can still be brought before a three-judge panel of the District of Columbia federal court for a trial on the substance of whether the voting change has a discriminatory purpose or effect; the fact that the Attorney General objected to the use of the change has no effect on the trial, i.e., the lawsuit does not challenge or appeal the Attorney General’s decision, but initiates a trial of the issue from the beginning. In legal terms, it is a trial de novo. 20 21 16