The Department of Justice pre-cleared California’s top two open  primary under Section 5 of the Voting Rights Act, thereby opening the  way for the implementation of the new primary system statewide in next  year’s elections.

Section  5 of the federal Voting Rights Act requires that any changes in voting  procedures or practices must be submitted for review by the Attorney  General of the United States or by US District Court for the District of  Columbia if those changes will affect a so-called “covered  jurisdiction,” which has had a history of discriminatory voting  practices.  Covered jurisdictions include nine states, dozens of  counties and a number of townships across the country.

Pre-clearance  by the Civil Rights Division of the Department of Justice requires  proof that the proposed change “does not deny or abridge the right to  vote on account of race, color, or membership in a language minority  group,” according to the Department of Justice.  In California, four  counties are considered covered jurisdictions under the law’s language  minority group provision: Kings, Merced, Monterey and Yuba.

In  a letter to Senior Elections Counsel Robbie Anderson on Monday, the  Chief of the Justice Department’s Voting Section, T. Christian Herren  Jr., stated that the Attorney General “does not interpose any objection”  to the top two primary election system and related changes to  California’s Election Code.  However, the letter continues, this  determination does not bar the Attorney General from filing suit at a  future date to prevent enforcement of the changes to the election code.

According  to Daniel Howle of the California Independent Voter Project (CAIVP), if the  Justice Department had not approved the changes for the covered  jurisdictions, the law could not have been implemented statewide because  elections for the legislature and Congress cannot be conducted under  different rules in different districts.

In  a 2006 report on Voting Rights Enforcement and Reauthorization, the US  Commission on Civil Rights found a steady decline in objections to  changes in voting procedures and practices by the Department of Justice.

“Objections as a percentage of submitted changes from covered  jurisdictions have declined markedly over 40 years to the point that  during the last decade, objections have virtually disappeared,” wrote  Commission Chair Gerald Reynolds in the report’s letter of transmittal.

However, the Justice Department regularly files complaints that raise claims under various provisions of the Voting Rights Act.   Over the last ten years, eight complaints have been filed against city  and county governments in California under the landmark law’s language  minority provisions.  The most recent complaint, filed against Riverside  County in February 2010, alleged that the county failed to provide an  adequate election program for Spanish-speaking voters.  The resulting  court order authorized federal observers to monitor elections in the  county through 2013 and provided the county an extension to answer the  official complaint.

Though  California’s top two open primary has been pre-cleared by the Department of  Justice, a number of lawsuits against the system are still pending in  the courts.  Earlier this month, US District Court Judge Otis Wright  cancelled a hearing in a lawsuit challenging Senate Bill 6, which  provides the legal scaffolding for California’s Top Two Open Primary  Act.

“It  is very likely that Judge Otis Wright will uphold both the  discriminatory policy on party labels, and the policy that permits  write-in space on ballots but says those write-ins can never be counted.  Judge Wright had earlier this year refused to issue an injunction  against the labels policy,” wrote Richard Winger at Ballot Access News.

A  second suit, originally filed in 2005, challenges Washington State’s  top-two system on the basis of freedom of association and ballot access.   The state’s Republican, Democratic and Libertarian parties filed briefs in the case just this month, potentially providing a template for their counterparts in California should they decide to file suit against the system here.