The Implementation of Section 5 of the 1965 Voting Rights Act: A Retrospective on the Role of Courts
| DOI | http://doi.org/10.1177/106591297903200207 |
| Published date | 01 June 1979 |
| Date | 01 June 1979 |
| Subject Matter | Article |
THE IMPLEMENTATION
OF
SECTION
5
OF
THE
1965
VOTING RIGHTS ACT: A RETROSPECTIVE ON
THE
ROLE
OF
COURTS
GAYLE
BINION
University
of
California,
Snntn
Barbara
HE
Voting Rights Act
of
1965‘
has
proven to be the most significant and
effective federal law to combat racial discrimination in voting.
One
of the
most important provisions of that Act is Section
5*
which is the focus
of
this
retrospective. Specifically, the analysis will focus on the role of the courts
in
the
interpretation and implementation
of
Section
5.
The Voting Rights Act includes
a
number of major provisions affecting those
jurisdictions presumed to have had
a
history of discrimination against
black^.^
The
major
provisions have suspended “tests and de~ices,”~ allowed the assignment
of
federal voter registrars5 and federal observers to monitor elections in covered
‘42 U.S.C. Sect. 1973,asamended 1970, 1975.
‘Section
5
provides: ‘Whenever
a
State or political subdivision with respect to which the
Prohibitions set forth in section 1973b(a) of this title based upon determinations made
under the first sentence of section 1973b(b) of this title are in effect shall enact or seek
to administer any voting qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting different from that in force or effect
on
November 1,
1964, or whenever
a
State or political subdivision with respect to which the prohibitions
set forth in section 1973b(a) of this title based upon determinations made under the
second sentence of section 1973b(b) of this title are in effect shall enact or
seek
to ad-
minister any voting qualification or prerequisite to voting, or standard. practice, or pro-
cedure with respect to voting different from that in force or effect
on
November
1,
1968,
or whenever
a
State or political subdivision with respect to which the prohibitions set
forth in section 1973b(a) of this title based
upon
determinations made under the third
sentence of section I973b(b) of this title are in effect shall enact or seek
to
administer
any voting qualification or prerequisite to voting, or standard, practice, or procedure
with respect to voting different from that
in
force or effect on November
1,
1972, such
State or subdivision may institute an action in the United States District Court for the
District of Columbia for
a
declaratory judgment that
such
qualification, prerequisite,
standard, practice, or procedure does
not
have the purpose and will not
have
the effect
of denying or abridginq the right to vote
on
account of race or color, or in contravention
of the guarantees set forth in section 1973b(f) (2) of this title, and
unless
and until the
court enters such judgment
no
person
shall be denied the right to vote for failure to
comply with such qualification, prerequisite, standard, practice, or procedure:
Provided,
That such qualification, prerequisite, standard, practice or procedure may be enforced
without such proceeding if the qualification, prerequisite, standard, practice, or pro-
cedure has been submitted by the chief legal officer or other appropriate official of such
State or subdivision to the Attorney General and the Attorney General has not inter-
posed
an
objection within sixty days after such submission, or upon good cause shown,
to facilitate
an
expedited approval within sixty days after such submission, the Attorney
General has affirmatively indicated that such objection will not be made. Neither an
affirmative indication by
the
Attorney General that no objection
will
be made, nor the
Attorney General’s failure to object, nor
a
declaratory judgment entered under this
section shall bar
a
subsequent action to enjoin enforcement of such qualification, pre-
requisite, standard, practice, or procedure.
In
the event the Attorney General affir-
matively indicates that
no
objection will be made within the sixty-day period following
receipt of
a
submission, the Attorney General may reserve the right to reexamine the
submission if additional information comes to his attention during the remainder of the
sixty-day period which would othenvise require objection
in
accordance with this sec-
tion. Any action under this section shall be heard and determined by
a
court of three
judges in accordance with the provisions of section 2284 of Title
28
and any appeal
shall lie to the Supreme Court.” 42 U.S.C. sect. 1973c, as amended,
Pub.L.
No. 94-73,
sects. 204. 206,405,
89
Stat. 402,404.
*
Under Section 4(b) of the Act, 42
U.S.C.
sect. 1973b this presumption is made for juris-
dictions within which fewer than
50
percent of adults were either registered to vote on
November
1,
1964, or voted in the November 1964 elections.
4
42 U.S.C. sect. 1973b. This provision suspending literacy tests now (under 1975 amend-
ments) applies nationally.
42 U.S.C. sect. 1973d.
Section
5
of
the
1965
Voting
Rights
Act
155
jurisdictions.6 Under Section 5
of
the Voting Rights Act Congress has restricted
covered jurisdictions from altering their electoral systems without prior clearance
by the Attorney General or the
U.S.
District Court for the District
of
Columbia.
Provision has also been made to protect the access of Puerto Ricans to the ballot,’
and the 1975 amendments require bilingual
ballots
wherever language minorities
constitute
5
percent of the voting age population? The implementation of the
provisions of the 1965 Voting Rights Act has been associated with
a
very sizable
increase in black voting and black political power. Between 1964 and 1972 the
number of blacks registered to vote in the South increased by more than one mil-
liong and the gap between white and black registration rates decreased from 44 to
11 percent.1° During the same time period black elected officials in the South in-
creased from fewer than 100 to more than
l,OOO.ll
The
capacity of the Voting Rights Act to increase the black vote and conse-
quent political strength is attributable to
a
numbcr of factors. First, unlike earlier
voting rights legislation
-
for example, the Civil Rights Acts of 195712 and 196019
which relied entirely on litigation instituted by the
U.S.
government
-
thc 1965
Act gives the federa1 government extensive administrative powers and remedies not
previously available
as
weapons against discrimination. Second, the Act provides
for automatic suspension of
“tests
and devices”
in
covered jurisdictions without the
burden on the government to prove
them
actually
discriminatory. The ability of
the
US.
government to monitor closely and immediately the enforcement
of
the
Act’s provisions through the use of registrars and inspectors is naturally of critical
significance.
Section
5
of
the Voting Rights Act insures that
the
states
will
be unable to
adopt new forms of racial discrimination in voting to replace those suspended by
the other provisions
of
the Act. It has proven to be of enormous significance in the
implementation
of
the goals
of
the Voting Rights Act. The other provisions of the
laiv were the critical first steps to stop the common methods
of
discrimination. In
contrast, the importance of Section
5
is
on-going. Section
5
places an affirmative
burden
on
covered state and local governments to submit changes in electoral laiv
to the federal government before they may take effect. Any change in the laiv
on
I
voting qualification
or
prerequisite to voting, or standard, practice
or
procedure
with respect to voting” must be scrutinized to insure that it “does not have the
purpose
and wiII not have the effect of denying
or
abridging the right to vote
on
account of race or
CO~O~.~’~*
An affirmative burden is placed
on
these governments
to prove that
the law
will
not
eflect discrimination;
the Attorney General
does not
have to prove
that
it will
in order to object to the change. Without Section
5
it is
questionable that the Voting Rights Act would have enjoyed the apparent level
of
success it has had. The other provisions of the law refer specifically
to
the acts of
registering and voting but the language
of
Section
5
is broad enough to reach the
electoral system itself
(for
example: apportionment plans, municipal boundary
selections, rules governing candidacies for public office).
Its
broad coverage and
prophylactic
quality
give Section
5
the potential of insuring that the enormous
“42 USE. sect. 1973f.
‘42 U.S.C. sect. 1973b(e).
‘42 U.S.C. sect. 1973aa-la(b).
United States Commission on Civil Rights,
The
Voting
Rights
Act:
Ten
Years
After.
(Herc-
inafter referred
to
as
Ten
Years
Affer)
1975,
p.
41.
“Ibid. at 43.
Ibid. at 49.
“42 U.S.C. sect. 1971.
”
42 U.S.C. sect. 1971, 1974.
“See footnote #2 above. The state
or
local government has the option of obtaining
a
decla-
ratory
judgment
from the U.S. District Court for the District of Columbia or the ap
proval of the Attorney General.
-
156
?Vextern
Political
Qrtnrterly
increase
in
black registration and voting
will
be translated into similarly increased
levels
of
political power. Section
5
has been moderately successful in this regard
but
as
will
be suggested, recent decisions of the United States Supreme Court raise
some questions about its continued effectiveness.
ROLE
OF
THE
COURTS
UNDER
SECTION
5
OF
THE
VOTING
RIGHTS
ACT
The Voting Rights Act created an unusual hierarchy
of
reviewing authorities.
Only the Attorney General or the
U.S.
District Court for the District of Columbia
may determine if an electoral change in substance has the ‘rpurpose
or
effect” of
“denying or abridcjng” the right to vote
on
account
of
race. Rut most litigation
under Section
5
has begun in the Federal District Courts in the South where either
the U.S. government or aggrieved voters have tried to force state and local govern-
ments to comply with the procedural requirements of Section
5.
In accordance
with
2284 these suits for compliance may be heard only by
a
three-judge
court and any appeal lies to the
US.
Supreme Court?5 State courts are presumed
to have
no
authority to interpret Section
516
and single-judge federal courts similarly
lack any authority to interpret the law except to determine that Section
5
may be
relevant and to enpanel
a
three-judge court?’ The suits heard by three-judge courts
are
also
of
limited scope. They may determine only if the governmental action
chaIIcnged is indeed an electoral “change.”
If
the three-judge panel
so
decides, the
government would be ordered to submit its electoral change to the Attorney General
(or
U.S.
District Court for the District
of
Columbia) for scrutiny on the question
of
racial discrimination. Only the Attorney General or the
D.C.
Court (or, on
appeal, the
U.S.
Supreme Court) has any power to interpret what changes in
electoral policies actually violate the substance of the Voting Rights Act in their
racial impact. 117hile there have been occasional instances
of
state courts im-
properly interpreting the scope
of
Section
5
or
three-judge courts improperly de-
termining
if
Section
5
has in substance been violated, the Supreme Court has not
only upheld the constitutionality of Section
5lS
but has also clearly specified the
limits of the authority
of
the various
courts
to interpret its appli~ability.~~
“42 U.S.C. sect. 1973c. The Supreme Court has interpreted broadly the provision of appeal
directly to the Supereme Court. In
NAACP
v.
New
York
Court applied the provision to the appeal of an unsuccessful intervenor in
;I
“bailout’’
case.
Thus,
for example, in
Barrett
v.
City
of
Perry
clined to reach the question of whether
a
state court could consider the issue of sub-
missability of a votinc change for preclearance. Similarly, in
Beatty
v.
Esposito
F.Supp. 107
(E.D.
N.Y.
1976)
a
federal judge noted that no decision of
a
state court
judge on Section
5
has any effect.
“One case in point is
Sumter County, Alabama Democratic Executive Committee et
aI.
v.
Dearman
a
single-
judge district court could not determine that an electoral change did not come within
the scope of Section
5:
only
a
three-judge court could
make
this determination.
In
contrast, in
Gomez
v.
Galloway
a
single-judge
federal court ruled that the city of Beesville, Texas
was
not
a
“political subdivision”
under Section
5
of the Voting Rights Act.
’*South Carolina
v.
Katrenbach
In
Allen
v.
Board
of
Elections
89 S.Ct. 817 (1969) the Court clearly delineated the author-
ity of the various courts under Section
5.
Nevertheless. in
Perkinz
v.
Matthews
F.Supp. 565
(S.D.
Miss. 1969), decided just after
Allen,
a
three-judge court went
beyond the question of submissability. Similarly, in
Cox
v.
New
Orfeans
La.
App.
(1971) a state judge ruled that Section
5
TV~
not intended to cover changes
which broadened the franchise.
And
the Fifth Circuit, in
Riddell
v.
Notional Demo-
cratic Party
(5th Cir. 1975), refused to force the Freedom Democratic
party (Loyalists) in hlississippi to obtain preclearance when it changed the time and
place for selecting delegates. The Court reasoned that the changes were not voluntary
but rather the result of harassment and, more importantly, did
not
constitute racjal
discrimination, therefore were not subject
to
Section
5.
And, most recently, in
US.
v.
Board
of
Supervisors, Warren County, Mississippi
Section
5
of
tke
1965
Voting Rights Act
157
The important role
for
the unusual hierarchy of courts under Section
5
has
been to facilitate and oversee the administration
of
the law by the Justice Depart-
ment. Submissions under Section
5
with only one exception have been made to
the Attorney General rather than
to
the
US.
District Court
for
the District
of
Columbia for the permitted alternative of
a
declaratory judgment.20 But the fact
that submission to the Attorney General is the more reasonable course21 has not in
practice rendered the courts unimportant in the enforcement of Section
5.
First,
the courts have performed the extremely important function of determining what
forms of electoral change are subject to Section
5
clearance when covered govem-
ments declined to submit their electoral changes voluntarily. During the first six
years of the Voting Rights Act Section
5
was
virtually unused,z2 in part because it
was not until
1969
that the Supreme Court began to offer broad interpretations of
the kinds of electoral changes which were within its scope.23 Thus, three-judge
US.
District Courts
as
well as the Supreme Court have been very important in
shaping the requirement of submission which has resulted
in
preclearance by the
Attorney General of thousands
of
electoral changes.24 Requiring that reluctant
governments abide by a liberal understanding
of
Section
5
has
put
federal courts
in
a
position of facilitating the administration of the Voting Rights Act. But the
federal courts, especially the Supreme Court, have played two other important roles
under Section
5.
The courts have immunized court ordered reapportionment from
Section
5
review, and in recent years the Supreme Court has restricted severely the
discretion of the Attorney General to find objectionable the plans he scrutinizes.
The analyses
of
these three kinds of decision making which follow suggest that
while the Court has usually given an appropriately broad reading to the language
of Section
5,
its rulings
on
court ordered reapportionment plans and on the dis-
cretion of the Attorney General were unnecessarily contrary to the effective en-
forcement
of
the Voting Rights Act.
Refusals
to
szibntit
electoral changes
Refusals of governments covered by Section
5
of
the Voting Rights Act to
submit their electoral changes to the Attorney General or the
US.
District Court,
District
of
Columbia, was the first major obstacle to the efficient enforcement of
Section
5
as
a
device for preventing racial discrimination in electoral processes.
The reluctance of southern governmentsz5 either to interpret the law broadly to
cover particular changes in their laws or to defer to the power of the federal
Court rejected the finding of the
U.S.
District Court. Southern District of Mississippi,
that
a
reapportionment plan was not dilutive of the black vote under Section
5.
The
question of Section
5
submissability in each case had been incorrectly resolved
by
deter-
mining that Section
5
had not
(in
substance) been violated.
2o
Vance
v.
U.S.
Civil No. 1529-72 (D.D.C. Nov. 30, 1972),
Ten
Years
After
p. 29.
There are two obvious explanations of the preference for submission to the Attorney General.
First is the cost. For the price of postage on
a
Ietter of submission
to
the Attorney Gen-
eral
a
jurisdiction has satisfied its legal obligations under Section
5.
This compares quite
favorably to the cost of bringing suit in the D.C. District Court. A second explanation
for the universal reliance
on
this method of review is that
a
jurisdiction was not likely
to fare better in the D.C. District Court.
It
is instructive that in the three major cases
in
which jurisdictions turned
down
by the Attorney General turned to the District Court
(Petersburg,
Richmond,
and
Beer),
that Court upheld the objections (although in the
latter
two
success
was
found in part before the
U.S.
Supreme
Court.)
Ten
Years
After,
p. 25.
a
Allen
v.
Board
of Efections
89 S.Ct. 817-( 1969).
"See
Ten
Years
After,
Appendix
5,
pp.
402-9 for
a
list of the objections made
by
the At-
torney General. Through December 1974 objections totaling 167 were registered.
And in
a
few instances non-southern governments were involved.
See,
for example,
Beatty
v.
Esporito
and
United
Ossining Party
et
al.
v.
Hayduk
357 FSupp. 962
(S.D. N.Y.
1971), both involving New York state. In the former case
a
local practice
was
covered
because
it occurred
in
Kings County (Brooklyn), New York. which along with Bronx
and
New
York (Manhattan) counties
was
found
to
have had
less
than
50
percent voter
21
158
JVestern
Political
Quarterly
government to scimtinize their electoral processes accounted for
a
very low level
of Section
5
compliance during the first five
YGXS
after the law was enacted. The
first function of the courts
was
thus to secure compliance with the requirements of
Section
5
submission when the covered state and local governments were unwilling
to act voluntarily. Most
of
the changes in “standard(s), practice(s) and proce-
dure(s)” analyzed by the courts
for
submissability under Section
5
have been of
one of three types: reapportionment, alterations in jurisdictional boundaries and
changes in the rules and procedures governing political candidacies. In each
of
these areas the courts have served important functions in the realization of the
goals of the Voting Rights Act, But it
will
also be argued that the courts have in
some cases ordered too little too late and the lower federal courts have often been
reluctant to effectuate fully the provisions of Section
5
without clear directives
from the U.S. Supreme Court.
1.
Reapportioninent.
Apportionment and reapportionment, the selection of
the boundaries within
a
jurisdiction for determining
units
of representation, has
been an important source of inequality in political power. Through apportionment
there are three major ways in lvhich governments are able to control the level of
political strength of particular groups. They can accomplish this control through
drawing district boundaries with unequal population which by definition creates
unequal power. Second, they can gerrymander the selection of particular district
lines, which, while including equal populations succeeds in dispersing minority
political strength. Third, governments may use the particularly popular mcchanism
of
at-large elections in which the power
of
large minority groups is minimized
because minority candidates must appeal to the entire community for election. At-
large elections usually insure that the minority
will
fall short of any electoral power
in the form of legislative seats. Southern governments have used each of these to
control the political power of blacks during the past decade. Variations of the
at-large mechanism have also proved popular in the South as means to control the
effects of
an
increased black electorate.2a These mechanisms have included the
numbered
posts
and
anti-single
shot
or
full
ballot requirements. Under the num-
bered posts system communities are able to keep the benefits of the at-large pro-
cedure while also limiting the possibility that complete political control by blacks
could occur should they edge into majority status for one election. Under the
anti-single shot or full ballot requirement minority voters in an at-large election
have been forced to vote for the competitors of “their” candidates or not have their
ballots counted at all. Both of these mechanisms have successfully curtailed the
effectiveness of minority vote mobilization and concentration efforts.
While each
of
these apportionment practices has on numerous occasions suf-
fered the objections of the Attorney General*’ many governments covered by the
provisions
of
Section
5
have been able to delay for many years the effective appli-
cation of
a
ban on their use. The examples of Forrest and Leflore counties, Missis-
sippi,
are
excellent cases in point. The cases of
Fairlie
v.
Patterson28
and
Moore
v.
Leflore
County
Board
of
Coniinissionersz9
both challenged the enactment in Missis-
sippi of section
2870
in
1966.
This state law enpowered counties to elect their
supervisors at-large rather than
by
the previously requircd system of five districts.
registration in November 1968. The latter case involving
a
New York
state
law was,
after
a
court fixht, found non-submissable by the Attorney General only because the
county in which the
chflenge
occu-med (Westchester)
was
not within the reach
of
Section
5.
zd
This
was
due in large measure to voter registration under the suspension
of
“tests and de-
vices’’ in Section
4
of the Act and the assignment
of
Federal registrars.
’’
See
Ten
Years
After,
Appendix 5.
25
of
the four consolidated in
Allen
v.
29
(N.D. Miss. 1971).
Board
of
Elections
Section
5
of
the
1965
Voting
Rights
Act
159
Thirteen counties opted for the at-large plan which, even if it did not have the
singular intent of abridging the black vote, certainly had the potential of doing
so.5o
It
was not until after the Supreme Court, in
Allen
v.
Board
of
Ble~tions~~
in
1969, held that changes to at-large elections were subject to Section
5
clearance
that the two counties in question were forced to submit their plans under Section
5.
Despite the Court's ruling in
Allen
it was not until 1971 that a three-judge Federal
District Court in Mississippi ordered Leflore County to obtain clearance. The delay
and footdragging on reapportioning the county districts continued until
1974
when
thc Fifth Circuit appeared to be in the final stages of reapportioning the districts
in question, eight years after the adoption of the discriminatory policies and seven
years after the initial law suits were One needs only to peruse tlie cases on
reapportionment and Section
5
compliance to see that this phenomenon.of delay
had been a rather common practice.
The Supreme Court may have contributed to the slow process of compliance
with Section
5
by its unwillingness in
Allen
v.
Board
of
Elections
to face the entire
question of reapportionment and the requirement that covered jurisdictions obtain
federal clearance in advance of conducting elections. In
Allen,
IYarren, for the
Court cautioned, "Also the question of whether Section
5
might cause problems in
the implementation
of
reapportionment legislation is not properly before
us
at this
time."33 Despite the Court's general concern for the constitutional problem of
maIapportionments4 it
ivas
not until 1973 in
Georgia
v.
that the Court
es-
plicitly ruled that reapportionment plans may not be used without prior clearance
by tlie Attorney General
or
the District Court for the District of Columbia. The
Supreme Court
ivas
once again called upon to make this
very rudimentary
ruling
in
Connor
v.
WaIler36
in 1975, with reference to the requirement that reapportion-
ment plans for the state legislature of Mississippi were subject to the scmtiny
of
the
Attorney General. The Mississippi reapportionment issue
is
still in the co~rts.~'
The Mississippi litigation began in 1965; perhaps if the Supreme Court had issued
clearer statements on reapportionment and Section
5
before 1973 there might have
been progress more quickly. This is not to suggest that the Supreme Court has
actively encouraged non-compliance with Section
5
on matters of apportionment
but rather to suggest that jurisdictions and IocaI Federal District Courts not in
sympathy with Section
5
have exploited loopholes and nuances
to
avoid compliance
whenever possible. These subordinate federal courts would probably have been
reluctant to violate a Supreme
Court
directive but until 1973 the Supreme Court
had simply ignored the reapportionment loophole. And this delay has consequently
delayed decision making on the substantive issue of whether the proposed reappor-
tionment plans are actually discriminatory.
Ten
Years
After,
p.
271.
"889
S.Ct.
817 (1969).
As
noted in footnote
#28
above,
Fairlie
v.
Patterson
was
one
of the
*'See
Fairlie
v.
Patterson
re Forrest County, and
Ten
Years
Alter,
pp.
277-280,
re Lcflore
four consolidated cases
in
Allen.
County.
at
833
(1969).
I'
Evidence
of
the Court's concern is found
in
the large number of appeals it considered and
the
many
decisions made
on
the basis of the seminal cases of
Reynolds
v.
Sim
Wesberry
v.
Sunders
and
Avery
v.
Midland County
In
more than three dozen reapportionment cases the Court has
rendered decisions.
-
"93
=95
S.Ct.
2003
(1975).
See
Connor
v.
Coleman
1814 (1976),
and
Connor
v.
Finch
1828 (1977).
In
the former case the Court made only
a
procedural
ruling
which allowed the District
Court
to
continue its sloiv progress toward reapportionment.
In
the latter case the
Supreme Court rejected
a
plan approved by the District Court.
160
Western
Political
Qitartcrly
Compliance with the requirement of submission of apportionmcnt schemes
under Section
5
has
been relatively slow; but that it would not have occurred
voluntarily is evident in the large number of suits filed to force state and local
governments to obtain approval of apportionment changes. One cannot blame
courts
for
delay if appropriate suits are not filed to force compliance
-
they cannot
solicit cases. But given the initial reluctance of the
US.
District Courts in Alabama,
Mississippi, Georgia, and Louisiana to apply Section
5
in reapportionment cases,
one wonders if
a
more complete decision covering such submission in
Allen
might
not have aided timely compliance. As late as 1977 one still finds
local
governments
ignoring the applicability of Section
5
to their reapportionment
2.
Alterations
in
Jzirisdictional Boundaries.
Like apportionment, the altera-
tion of county, municipal and school district boundaries can be
a
poiverful sourcc
of racial discrimination. By a redefinition of “who” is
a
part of
a
particular legally
defined community the political power of minority groups can be effectively mini-
mized. Mechanisms like incorporation (formation of
a
new government), and
detachment have often served
to
create white-controlled communities by the selec-
tion of particular municipal boundaries which will esclude blacks. The mechanisms
of annexation and consolidation have
also
been used to dilute the voting power of
blacks by bringing additional white voters into the governmental unit.39 Although
the Supreme Court rulcd on the unconstitutionality of these practices in
Gomillion
V.
Lightfo~t*~
it was not
until
Perkins
v.
Matthews,”
in 1971, that the Supreme
Court ruled that boundary alterations (in
Perkins
an annexation to Canton, Missis-
sippi) effected after 1964 must be submitted to the scrutiny of the Attorney Gcn-
eral. In
Perkins
a
three-judgc Federal District
Court
had incorrectly suggested that
the annexation did not have to be submitted because it
was
not racially discrimina-
tory.’2 Even though the language of
Allen
v.
Board
of
Elections
in 1969 was cer-
tainly broad enough in its import to have covered annexation and other boundary
changes,
as
in reapportionment, it was necessary and important for the Supreme
Court to make
a
specific dccision on the submissability of boundary changes under
Section
5.
The rcquircment of compliance with Section
5
procedures for boundary
changes has been an estremely important judicial pronouncement even
if
not
a
panacea for the problem of racial selectivity in government boundaries. In 1969,
on the basis
of
Allen,
a
farsighted three-judge court held
a
Mississippi law eqxdit-
ing county consolidations subject to Section
5.‘s
The law promised to dilute the
black vote by consolidating “black” counties with neighboring white counties. This
judicial decision was made three
years
after the enactment
of
the law in 1966. But
until the
US.
Supreme Court rendered
a
direct verdict on the question of submis-
sion compliance was not universal. The annexation by the city of Richmond, Vir-
ginia,
in 1970 is ample evidence of the resistance, where possible, to submitting
boundary changes to the Attorney General.
Thc judicial decisions forcing Section
5
compliance on boundary alterations
have been important for two reasons. The decisions have prevented some boundary
changes from occurring and haw,
as
well,
provided for thc Attorney General the
”A good case in point is
U.S.
v.
County
Commission.
Hale
County,
Alabama
425
FSupp.
433
(S.D.
Ala.
1977),
in which Hale County maintained unsuccessfully that it
was
not
ailtomatically covered by the Voting Rights Act because
of
the coverage
of
the state
of
Alabama.
‘3For
a.
rather exhaustive study
of
this phenomenon see Donald
Hagman,
ed., “The White
Curtain: Racially Disadvantaging Local Government Boundary Practices,”
Iournal
of
Urban Law
54
(Spring/Summcr
1977)
:
681-1073.
“91
(1971).
“Ibid.
at
435.
(S.D.
hliss.
1969).
Section
5
of
the
1965
Voting Rights Act
161
power to bargyin for political gains for racial minorities. For example, boundary
alterations accomplished prior to 1964 are not subject to retroactive clearance.
Al-
though they are subject to constitutional challenges by aggrieved voters under the
Fourteenth and Fifteenth Amendments thcse challenges are often costly, time con-
suming, and only occasionally successful. In
a
number of instances, however, the
Attorney General has been able to force jurisdictions to “correct” their pre-1965
mistakes
as
the price
of
his approval of
a
neiv boundary alteration. A good
case
in point is McComb, Mississippi, which in
1961
annexed
a
poor black section called
Beartown, promising to provide it with quality municipal services. In 1963 the
city decided that the cost of such services was too high and detached the previously
annexed area. Despite
a
challenge by the detached black community the Mississip-
pi
Supreme Court upheld the detachment
as
“necessary for public c~nvenience.”~~
In 1973, however, the Attorney General objected to
a
neiv annexation plan sub-
mitted by the city of McComb. The petitions he had received from residents of
Beartoivn seeking reannexation led him to conclude that McComb was pursuing
racially selective annexation policies. The price of the Attorney General’s approval
was
an adjustment in the boundaries of the area to be annexed to McComb. Thus
the Attorney General, through his authority under Section
5,
was able to reach in-
directly through “bargaining”
a
boundary alteration not directly subject to his
review.
CC
Bargaining” was
also
responsible for thc Attorney General’s ability to persuade
the newly incorporating city of Pearl, Mississippi, to alter its intended borders to
include additional blacks who desired the municipal services. This is despite the
fact that many alleged that the incorporation
was
drawn to avoid precisely that.
While it it not clear whether the city might have later incorporated anylvaf5
without the additional black residents, the desire to achieve cityhood quickly
gave
the Attorney General considerable leverage.“6
Political leverage has also been used by the Attorney General in the case of
Petersburg, Virginia, where
a
1971
annexation, although not alleged to be for the
purpose of discrimination, resulted in
a
dilution of the black vote from
51
to
46
percent. The Attorney General objected to the annexation (deemed submissable
after
Perkins)
but suggested that the substitution of
a
ward plan for the at-large
elections for city government might satisfy his objections. The city of Petersburg
brought suit in the District Court for the District
of
Columbia seeking
a
declaratory
jud-gment that the annexation would have neither the purpose nor the effect of
abridging the right to vote on the basis of race. In
Petersburg, Virginia
v.
U.S.4’
the District Court upheld the objection of the Attorney General and implicitly
endorsed his remedy of ward elections.48 The Supreme Court affirmed the District
Court’s judament.4D In
a
municipal election on
a
single-member ward basis in
June 1973 blacks won
a
majority of the seats on the city council even though they
constituted
a
minority of the votersFO
nMarshall
v.
Mayor
and Board
of
Selectmen
of
McComb,
Mississippi
251 hiiss. 750 (1965).
While it is true that the alternative of seeking
a
declaratory judgment from the D.C. District
Court has not been
a
viable one, given the Supreme Court’s rulings in
Richmond
and
Beer
(to be discussed below) one wonders if Pearl might not have been successful
ultimately.
‘’
It must be noted that the black community which the Attorney General reputedly served
was not uniformly pleased with his compromise.
‘‘Ibid. at
1023.
“93 S.Ct. 1441 (1973).
Ten Years
After,
pp. 304-5.
It
is
also
interesting to note that
a
similar compromise
was
effected for Lynchburg, Virginia. In
Citizens Committee
to
Oppose Annexation
v.
Lynchburg
the Attorney General to the annexation
as
satisfied by the immediate submission by the
city
of
a
ward based plan for municipal elections.
162
IVestern Political Quarterly
The role of the courts in forcing the submission of boundary alteration plans
for review under Section
5
has thus been important if somewhat late in coming.
As
in the reapportionment incidents, governments and courts not sympathetic with
the goals of the Voting Rights Act avoided compliance until the Supreme Court
made
a
direct ruling. In the case of boundary alterations the requirement of sub-
mission has also been very significant in the political leverage it has provided for
the Attorney General’s office. It has been shown that he was able to effect changes
in hlcComb and Pearl, Mississippi, and Petersburg, Virginia, in return for his non-
objection to neiv boundary alterations. This “bargaining” power of the Attorney
General is
far
more significant when boundary changes are at issue than when
reapportionment is at stake. The explanation is simple. Municipal governments
pursuing alterations in their boundaries generally want those changes quickly
(usually for fiscal reasons) and are willing to meet many of the objections of the
Department
of
Justice. TVhen reapportionment plans are submitted to the Attorney
General for clearance there is not usually
a
great desire to reapportion and thus
there is little incentive to meet the objections of the federal government to expedite
approval of the plan. Thus court rulings requiring the approval
of
the Attorney
General on boundary changes have been potentially even more significant than
those governing reapportionment plans.
3.
Changes
in
the Rules and Procedures Governing Candidacies.
New rules
governing candidacies
for
national, state, and local office, like reapportionment and
municipal boundary alterations, have been an important source of potential elec-
toral discrimination in the South after the passage of the Voting Rights Act. Faced
with the certainty of large black
voting
pofiulations,
many of the covered jurisdic-
tions carried out policies designed to prevent the election of black and other pro
civil rights candidates. TVhile manipulations in apportionment and adjustments in
municipal boundaries were attempts to accomplish this indirectly, many techniques
of direct candidate control were
also
developed. The United States Commission on
Civil Rights in its 1975 inventory found some of the more popular techniques to
include: increased filing fees, changed or eliminated political ofiices, new methods
or
rcstrictions on certifying political candidacies, new campaign
rules,
uneven
enforcement of niles and imparting of information, and neiv methods for chal-
lenging successful black candidates?*
A
few examples of the role and importance
of the courts in subjecting these practices
to
Section
5
preclearance will illustrate.
The most significant early attempt to control ‘‘new’’ black candidacies was
made by the Mississippi legislature in 1966. Firmly convinced that the political
parties were safely in the hands of white cifizens they proceeded to control the
phenomenon of independent candidacies. They provided for four changes in the
law which restricted party primary voters from becoming independent candidates,
increased the number
of
signatures necessary to get on the ballot, made the solici-
tation of these signatures more difficult, and instituted an earlier filing deadline
for independents. These changes were upheld by
a
three-judge Federal District
Court in Mis~issippi.~? In one of the earliest Section
5
challenges the Court
rc-
sponded, “The Mississippi statute under consideration (House Bill
68)
is directed
solely to the qualifications of candidates, whereas Section
5
has reference to the
qualifications of voters.. . [it] does not deal with voting but deals with elec-
‘l
Ten
Years
After,
pp.
138-42.
-
Whitley
v.
Johnson
(S.D.
Miss.
1967)
reversed
by
the Supreme Court
sub. nom.
Whitley
v.
FYiZliarns,
one
of
the
four
consolidated cases in
AZfen
v.
Board of
Elections
(1969).
The Mississippi state legislature
was
very busy in
1966.
It
passed three distinctly discriminatory laws. In addition to the law chaIIenged in
lk‘hitley
it also passed laws allowing at-large elections in counties and facilitating the
consolidation
of
‘%lack“ counties with adjoining white counties to dilute black political
power.
Section
5
of
the
1965
Voting Rights Act
163
tions..
.
IVhile finding the statute immune from Section
5
requirements of
submission to the Attorney General, the court reached the merits of the claims of
discrimination and commented disingenuously, “All such amendatory sections apply
equally to White and
Negro
~andidates.”~~ Two
years
later the
U.S.
Supreme Court
reversed the District Court and held that changes in access to the ballot \vere sub-
ject to preclearance by the Attorney General.5s In another case during the
same
term the Court also subjected to Section
5
processes a similar statute in Alabama
restricting independent candidacies.JG It is instructive that the Attorney General
was later to object to these statutes.5T
High filing fees for candidates like obstacles to independent candidacies was
early recognized
as
an effective way to control black candidates for public office.
New
black politicians in the South had lower financial resources available than did
the traditional white politician. In 1969 just months after the Supreme Court’s
decision in
Allen,
and perhaps because of
Allen,
a
three-judge Federal Court in
Georgia held
higher
filing fees subject to Section
5
procedures governing electoral
changes. The
case
was
Jenness
v.
Little5s
and
at
issue, initially, was Atlanta’s
$5,000
filing fee for mayoral candidates. The District Court rejected the increased
filing fee because
it
had not been approved by the Attorney General but one month
later upheld the new filing fee of $1,000 despite its non-submission. The Court
reasoned that the $1,000 fee was immune from Section
5
because the fee prior to
November 1964 (when Section
5
retroactively took effect) was actually higher than
that. The fact that the Attorney General had not objected to the enabling legisla-
tion by the state was also
seen
as evidence of his non-objection.59 Although it was
a
somewhat novel idea that the imposition
only
of
higher
fees were
changes
within
the meaning of Section
5,
in
practice fees are rarely if ever arbitrarily lowered, and
if lowered, probably would not result in racial After the ruling
in
Jenness
and before 1974 when the Supreme Court in
Lubin
v.
Panishe’
held the
nonexistence of alternatives to filing fees to be
a
violation of the Fourteenth Amend-
ment, the Attorney General objected to many filing fee increases6*
as
well
as
unduly
restrictive alternatives to impermissably high filing Thus on the question of
restrictive filing fees the courts have been important in two respects. First, it was
important for the courts to declare this phenomenon to be
a
“practice” governed
by Section
5
and thus give the Attorney General jurisdiction over the changes
potentially restrictive of black candidacies. Second, it
was
important for the
Supreme Court ultimately to declare unconstitutional any filing fees, new or old,
which created barriers to political candidacies.
It
has
also been critical for the courts to recognize the importance of political
party practices in elections and to subject changes in same to Section
5
screening.
“296
FSupp.
754
at
756
(S.D. Miss.
1967).
I’
Ibid. at
755.
EZ
Whitley
v.
JVilliams.
“Hadnott
v.
Amos
1101 (1969).
I’
Ten
Years After,
p.
162.
=Ibid. at
927.
“It must be remembered that
U.S.
District Courts are limited in their authority under
Section
5
to deciding if an electoral change
has
occurred. The determination of whether
the change is discriminatory must be made by the Attorney General
(or
the
U.S.
District
Court for the District of Columbia).
-
(N.D.
Ga.
1969).
‘*
1315 (1974).
Ocilla and Albany, Georgia;
Rock
Hill,
South Carolina; and Bessemer, Alabama,
Ten
Years
After,
pp.
135-36.
“For example, the filing fee in Mobile, Alabama, could be waived if
a
would-bc candidate
submitted
a
petition with the signatures
of
2,000
voters or signed
a
pauper’s oath. The
objection of the Attorney General to the alternatives (as too restrictive) led
to
the city
promising to interpret “pauper” very liberally.
Ten Years
After,
p.
134.
164
Western
Political
Qunrterly
But the actions of the courts in this regard have been uneven. IVhile the courts
have issued declaratory judgments on the subject they have generally failed to
apply effective remedies. The case
of
MacGuire
v.
AmosG4
illustrates the problem.
In
MacGuire
a three-judge Federal District Court in Alabama subjected political
party practices for the selection of convention delegates to Section
5
clearance pro-
cedures. The Court commented, “In short, if
a
state could escape the requisites of
Section
5
by channeling to the political parties its authority to regulate primary
elections, the force of the Voting Rights Act in the context
of
primaries would be
entirely abrogated.”6s But the Court declined to apply an appropriate remedy.
Taking its lead from the Supreme Court’s remedies in
Perkins
and
Allen
the Dis-
trict Court in
hlacGuire
refused to void retroactively the elections held under
a
system which, contrary to law, had not been screened by the Attorney General.Es
The Court had
also
refused to grant an injunction against the upcoming delegate
selection run-off election.
In
offering only
a
declaratory judgment, the Court left
the political party essentially unpunished for past illegal acts and unrestricted
as
to its immediate future actions. Not only did the Court fail to rectify the existing
situation of non-compliance with Section
5
but it
also
put little premium on future
compliance.
And, finally, in those jurisdictions where black candidates have successfully
overcome the obstacles placed between them and
a
place on the ballot, and have
won the primary election, new procedures for challenging the election have been
developed. It
was
important in
TRompsott
v.
Browns7
for the Federal Court to
view the manipulation of the Mississippi law governing electoral challenges
as
sub
missable under Section
5.
The removal of the
Thompson
case to Federal Court
was
predicated in part on the theory that the non-compliance
of
the state with Section
5
in this instance
was
evidence that the defendant’s rights could not be protected
in the state courts. The vigilance
of
the federal courts, beginning with
a
Section
5
judgment in
Thompson,
did, after many years of protracted delays, resuIt in blacks
finally taking political control
of
Rolton, Mississippi.Es
If
the courts have been somewhat less than successful in securing compliance
with Section
5
preclearance procedures for changes in rules governing political
candidates this is due in large part to the nature of the phenomenon involved.
Some changes in these practices are formal changes which are easily treated by the
courts and Attorney General under Section
5
much the
way
any electoral “change”
is
scrutinized. Among these are the formal rules governing increases in filing fees,
or
restrictions on gathering signatures for nominating petitions. Because these
are
rules
which are first enacted, then made operative, they may be prophylactically
corrected before the potential discrimination may occur. But many changes in
rules
governing candidacies unlike reapportionments and annexations are not formal
changes
at
all
and
as
such are difficult to prevent through reliance on Section
5
because they do not exist until
after
they have occurred. The refusal of an election
official to give accurate information to
a
prospective candidate or
a
change in
meeting places or times by the executive committee of
a
political party have both
been known
to
result in the disqualification of potential political candidates
-
but
neither could have been prevented under Section
5
because no positive policy had
been adopted which could have been subjected to federal scrutiny. And
as
AllacGuire
and other cases have shown, courts are reluctant to iise the remedy of
voidins elections conducted with these “ned’ practices.
“343
(M.D.
Ala.
1972).
“Ibid
at
121.
mIbid.
at
122.
m434
F.2d
1092
(5th
Cir.
1970).
Ten
Years
After,
pp. 167-68.
Section
5
of
the
1965
Voting Rights Act
165
The analysis of the role of the federal courts in forcing compliance with the
requirements of Section
5
preclearance has thus suggested uneveness in the effec-
tiveness of the courts in this regard. The data on Section
5
submissions suggests
that the delay in compliance on the part of most southern governments until the
1970s
was supported in many instances by the actions
of
lower federal courts which
read the intended coverage of Section
5
very narrowly.
It
was only after direct
Supreme Court rulings, especially in
Allen, Georgia
and
Perkitis
that the loiver
courts liberalized their understanding of Section
5
and began, sometimes reluctant-
ly, to order compliance. The significance of
a
broad interpretation of Section
5
by
the judiciary has been greatest on the subject of boundary alterations. The desire
of
many covered municipalities to expedite the approval of their proposed geo-
graphical changes has created for the Attorney General
a
significant degree
of
bargaining power not necessarily present when he is engaged in the scrutiny
of
reapportionment plans.
In the case of changes in the rules governing candidacies for public office it
has been suggested that while Section
5
preclearance can have enormous signifi-
cmce when the
formal
rules are altered, in many instances the “changes” are ad
hoc and nonexistent prior to use. In those instances, while Section
5
preclearance
cannot be an effective prevention
of
discrimination, failure to obtain the clearance
should
be
sufficient grounds for judicial remedies which disallow and void the prac-
tice albeit after it has occurred. This approach would
at
least provide
a
disincentive
for future “informal” alterations in eIectora1 procedures.
Court
ordered reapportionment
and
Section
5
The second question of Section
5
interpretation faced
by
the judiciary is
whether changes in voting procedures and practices ordered by courts, are, like
other changes instituted in covered jurisdictions, submissable to the Attorney
Gencral.G9 In contrast to the role
of
the courts
as
largely that of facilitators when
governments refused to submit their legislated electoral changes, on this
issue
the
courts have served to restrict the potential effectiveness of the Voting Rights Act.
Although for a number
of
years the Supreme Court created
a
confusion about the
submissability
of
court ordered reapportionment plans ultimately it has ruled that
such “changes” are immune from the scrutiny of the Attorney General or
US.
District Court for the District of Columbia. The issue was seriously in need of
resolution by the highest
court
but the solution chosen by the Supreme Court was
neither the most desirable alternative nor necessarily
a
constitutional imperative.
In
1969
in
Allen
v.
Board
of Elections
the Supreme Court had held that the
question of whether Section
5
might cause problems for the implementation of
reapportionment legislation was not properly before it.’O Two years later in
Connor
v.
Joh~zson
the Court held,
“A
decree of the United States District Court is not
within reach
of
Section
5
of
the Voting Rights The
Connor
v.
Jokn~on
dictum raised the question of what the Court meant by
a
“decree” of
a
court with
respect to reapportionment litigation. Ironically, it
IW
Justice Black in dissent,
a
confirmed critic of Section
5,
who adopted
a
somewhat narrower understanding
of the Court’s ruling on Section
5.
Black concurred only “that
a
reapportionment
plan
formulated
and
ordered
by
a
federal district court need not be approved by
While
in
theory this question could arise when
any
voting change
is
ordered
by
courts.
in
practice it has arisen only within the context
of
court ordered reapportionment
as
that
is
the
only
form
of
voting change in which courts have been involved in ordering
positius
action.
IVhile
a
court decree voiding as unconstitutional
a
pre-existing state voting
regulation could
be
viewed
as
a
“change” within the meaning
of
Section
5
of
the Voting
Rights Act the issue has never been raised within that context.
“89
at
833
(1969).
“91
S.Ct. 1760at
1761
(1971).
166
Western Political Quarterly
the United States Attorney General or the United States District Court for
the
District of Columbia.”72
The confusion about whether
a
plan was immune only if both formulated and
ordered by
a
lower court
was
heightened by the Supreme Court’s decision in
Con-
nor
v.
FV~laller~~
in 1975. A unanimous Court held that
a
Mississippi state legislative
reapportionment plan, adopted during
a
decade of litigation over malapportion-
mcnt, and approved by
a
U.S.
District Court, had to be submitted for clearance.
It
was not until
East Carrol Parish School Board
v. in 1976 that the
Supreme Court clarified its position on the question and provided clear guidance
for the lower
courts.
In
East Carrol
the Court unanimously supported
a
broad
Section
5
immunity for any plan “submitted and adopted pursuant to court
order.”75 Prior to this ruling lower courts disagreed over the extent of immunity
for plans decreed under the “equitable jurisdiction” of the Federal courts.
While in
Conner
v.
Oktibbeha County Board
of
SupervisorsJT8 Sims
v.
AnzosJ7’
and
Panior
v.
Iberville Parish
School
Distri~t’~
the lower courts seemed to antici-
pate
East Carroll
and read the Supreme Court’s position
as
exempting any plans
for reapportionment ordered by
a
court irrespective of the
authorshifi
of the plan,
other courts were not
as
farsighted. Each
of
these cited
cases
involved challenges
to the constitutionality of reapportionment plans enacted years earlier by the state
or
local legislature. The submissibility of
those
plans
was
not at issue; the question
resolved by the courts
was
whether they (the courts) could order the adoption of
new plans,
whether it be the alternative developed and submitted by the county
legislature,’*
a
school board consultant,8O
or
the plaintiff in the
caseS1
without sub-
mitting these plans for clearance. In each of these
cascs
the
court
upheld its inde-
pendent authority and immunity from Section
5
review. In contrast, in
Chargois
v.Vermillion Parish
School
Board et
~1.s~
the District Court approved in principle
a
new preliminary apportionment plan but held that the screening of the plan under
Section
5
“must be made initially by either the Attorney General or by the District
Court for the District of Columbia.’’s3 And in
Harper
v.
Levis’
the District of
Columbia Circuit Court read
Connor
v.
Johnsoit
narrowly
so
as
to differentiate
between plans
formdated
by courts and those formulated by the legislatures. But
one year later in
Kirksey
v.
Hinds County, A4ississippi Board of SupervisorP
the
Fifth Circuit rejected the distinction offered by the United States,
amicus,
between
plans that the courts have only
ordered
and those which they have
as
well
formu-
lated.
The Circuit Court thought any plan effectuated by the court rather than
through legislative authority was Two weeks after
Kirksey
the Supreme
Court reached the same conclusion in
East Carroll.
That one should not differentiate between plans actually devised by courts
and those simply adopted by
same
is clear and to this extent
East Carroll
is entirely
reasonable. Court ordered reapportionment plans,
as
a
meaningful classification,
”Ibid.
at
1763.
’’
95 S.Ct. 2003 (1975).
”
96 S.Ct. 1083 (1976).
‘‘
Ibid. at 1086, footnote
#6.
Miss.
1971).
(hf.D.
Ala.
1973).
Cir.
1976).
Conner.
Pan ior.
m
(W.D.
La.
1972).
79
a
Sim.
69
Ibid. at
501.
M520 F.2d 53 (D.C.
Cir.
1975).
~528 F.2d 536 (5th
Cir.
1976).
=Ibid. at 540.
Section
5
of
the
1965
Voting
Rights
Act
167
must include the alternative schemes (to those then codified) for apportionment
ordered by courts to meet constitutional standards of
Equal
Protection. Whether
the
court,
plaintiffs, commissions, or consultants actually drew
up
the plan is not
constitutionally significant. The significant distinction implicitly made by the
Supreme Court is whether an apportionment plan had been enacted into law by
a
legislature
or
GZC
about as
a
court order after litigation on the constitutionality
of the existing apportionment. While this is the
logical
distinction to make it does
not necessarily follow that court ordered reapportionment schemes should be im-
mune from Section
5.
There are three basic reasons why the Court should not have drawn the dis-
tinction/exemption for court ordered reapportionment. First, Section
5
allows the
Attorney General to go further in scrutinizing new electoral
laws
than the Four-
teenth or Fifteenth Amendment would command. Thus, while
a
court may endorse
a
reapportionment plan under its “equitable jurisdiction” which may unintention-
ally
result in the minimizing of minority voting strengths7 the Attorney General
acting under Section
5
has considerably greater latitude.
He
has the statutory
authority to reject
a
plan
unIess
he is convinced that it
will
not have either the
purpose
or
effect
of denying
or
abridging the right to vote. In short, the greater
discretion of the Attorney Gcneral to scrutinize the
effects
of
apportionment
as
well
as
his authority to reject plans he merely suspects could abridge voting rights places
a
greater affirmative burden on the states, and is potentially
far
more supportive
of
equal
electoral rights for blacks than
is
traditional Fourteenth Amendment
judicial scrutiny. The Supreme Court has therefore significantly limited the poten-
tial effectiveness of the Voting Rights Act to promote equal access for
blacks
to
political power by its decision in
East
Carroll.
Second, the Court’s decision may well promote greater non-uniformity
of
standards for racial equality in voting.
While
there is no guarantee
that
the
De-
partment
of
Justice will always act consistently under Section
5,
a
distinction be-
tween legislative plans (subject to review) and judicial plans (immune from re-
view) cannot help but exacerbate the non-uniformity. Ironically,
East
Carroll
suggests this very difficulty. In 1968 the Attorney General under Section
5
had re-
jected the Louisiana Iaw which enabled local governments
to
adopt at-large electoral
systems.ES Nevertheless,
a
Federal District Court in
1972
ordered at-large voting
in East Carroll Parish under
its
“equitable powers.”8g While the Supreme Court
ultimately found the plan unconstitutional one cannot assume that the Court
will
review all similar instances. The Court certainly would not be likely to do
so
in
order to promote uniformity between rulings of the Attorney General under the
liberal provisions of Section
5
and constitutionally based rulings of judicial bodies.
Third, and perhaps the most important of the possible objections to
East
Carroll,
is that the Supreme Court has encouraged legislative inaction on appor-
tionment. Under the dictum of
East
Carroll
the prudent southern legislature will
do nothing about malapportionment. The premium has clearly been put on hold-
ing on to existing district boundaries (under which the legislators were elected in
the first place) and hope for the best. Should legislators be sued by aggrieved
voters that would be time enough to draw up plans for submission to the court.
By
not enacting the
plan
QS
law
the legislature escapes the requirements
of
Section
5
and needs to meet only the constitutional standards of the court. This route
of
inaction is likely to minimize the threat
to
legislators for two reasons. First, the
Department
of
Justice philosophically and statutorily tends to be much stricter
than the courts in its scrutiny of reapportionment. Second, even if the Department
*‘lVhiftomb
v.
Chauis
(1971).
for
example,
has suggested that there
is
no as-
”96
1083 at
1085
(1976).
“Discussed in
Zimmerv.
AfcKeitheti
Cir.
1972).
sumption
of
proportional representation in the Constitution.
’
168
Western Political Quarterly
of Justice should become more lenient than the courts, if it were too lenient under
Section
5
the courts are still open for Fourteenth and Fifteenth Amendment suits
challenging the plans approved by the Attorney General. In sum, the rulinp
of
the Supreme Court immunizing from Section
5
review judicially ordered reappor-
tionment plans
will
inevitably result in
a
serious emasculation of the effectiveness
of the Voting Rights Act to insure equal representation.
-It
is
conventional wisdom that the Supreme Court had to reach the conclusion
it reached in
Connor
v.
Johnson
and
Bast
Carroll
on the non-submissibility of court
ordered reapportionment plans. IVhile the Supreme Court declined to offer an
explanation for its judgment in this regard, at least one lower court has suggested
that separation of powers might be controlling. In
a
per curium
opinion the
US.
District Court for the Northern District of Mississippi commented re Section
5
that
Congress could not have intended to give the “Executive Department of the Gov-
ernment through the Attorney General, the right to veto
a
decree of
a
district
court, when such court is sitting as
a
court of equity.JJD0 Perhaps some separation
of
poivers problems are involved but one need not conclude that the only solution
for the problems
is
the one chosen by the Supreme Court. The problem ought to be
resolved in terms of
controZZcd
jurisdiction
of the
US.
District Courts, and there
are at least two alternative theories possible.
First, if one is concerned about the prospect of the Attorney General overruling
a
court decision this constitutional confrontation may be avoided by assuming that
under Section
5
District Courts in covered jurisdictions do not have jurisdiction
over the approval of reapportionment schemes. Judges may still hear and decide
cases of malapportionment and render declaratory judgments on the constitutional
violations. There need be occasioned no constitutional crisis
if
the judge were then
restricted to ordering the state to comply with Section
5
which Congress has passed
pursuant to the goals of the very constitutional clause upon which the declaratory
jud,gxnent rests. This is already the case within
a
limited context.
If
voters chal-
lenge
a
newly adopted apportionment scheme in
a
covered jurisdiction they may
attack both its constitutionality
as
well
as
its non-submission under Section
5.
A
three-judge court might think the plan clearly unconstitutional but out of the canon
of self-restraint base its decision on the failure of the state to follow Section
5
pro-
cedures (naturally preferring
a
statutory to
a
constitutional ruling). The remedy
would be to order Section
5
compliance. There is also an interesting irony in the
argument of the courts that the submission of court ordered reapportionment for
Section
5
scrutiny violates separation of powers. This
is
precisely the argument
made
by
legislatures against the
courts
when the latter first judged malapportion-
ment unconstitutional.
If
this contention could be resolved in favor of the review
process one may reach the same conclusion about the reviewing authority of the
Executive branch, especially when it would not bc “reversing”
a
court of last resort.
If
this theoretical resolution is not acceptable there is still available the second
option of using the
U.S.
District Court for the District of Columbia rather than the
Attorney General
as
the appropriate reviewing authority for these kinds
of
cases.
Rather than require that the states obtain clearance from the Attorney General, the
trial court, in an apportionment case, could order the state to obtain
a
declaratory
judgment under Section
5
from the
D.C.
District Court. This would involve only
the assumption of
a
minor adjustment in the jurisdiction of the federal courts and
as such should not occasion
a
constitutional crisis.
In sum, the courts have reached the inadvisablc conclusion that court ordered
plans
for altering apportionment schemes are immune from Section
5
review. This
conclusion
will
severely limit the effectiveness of Section
5
and is not one mandated
by the Constitution. \\%ile Congress has not dealt explicitly with the issue, it has
Comer
v.
Board
of
Supervisors
of
Oktibbeha
County
334
FSupp.
280
at
284
(N.D.
Miss.
1971).
Section
5
of
the
1965
Voting
Rights Act
169
clearly specified that only two bodies are to be trusted to revielv electoral changes
in covered jurisdictions, the Attorney General and the
U.S.
District Court for the
District of Columbia. Reapportionment
is
an important aspect of electoral change,
and
as
the Supreme Court recognized in
Georgia
v. US., one subject to the pro-
visions of Section
5.
The recent conclusion of the Supreme Court that court ordered
reapportionment is not submissible
will
largely immunize this form of electoral
change from Section
5
review.
Limitations
on
objections under Section
5
The third probIem of judicial interpretation of Section
5
involves the limits
of
discretion allowed the Attorney General to object to legal changes which have
been submitted to him. Section
5
gives jurisdiction over the scrutiny of submitted
plans to only the Attorney General, the
U.S.
District Court for the District of
Columbia and the U.S. Supreme Court. In general, the
D.C.
District Court
has
upheld the discretion exercised by the Attorney General, and in
Petersburg, Rich-
monfll
and
BeerQ2
refused to override the Attorney General and issue declaratory
judgments favoring the electoral changes. Until
1975
the Supreme Court
also
rendered decisions consistently supportive of the goals of the Voting Rights Act
by interpreting very broadly (with the exception
of
court ordered reapportionment)
“changes” subject to Section
5.
As previously discussed, the Court had interpreted
standard, practice or procedure with respect to voting” to include reapportion-
ment
(Georgia)
,
changes to at-large elections
(Allen)
,
changes in qualific
a
t’
ions
or
procedures for candidates
(Hadtzott, Allen)
and alterations in municipal boun-
daries
(Perkins).
In
1975, 1976
and
1977,
one can see
a
distinct shift in the decisions
of
the
Supreme Court. Its last three terms have been marked by nearly uniform rejection
of
individuals’ voting rights claims under Section
5?3
In addition to immunizing
court ordered reapportionment in
Emt
Carroll
in
1976
the Court
in
Richmond, Vir-
ginia
v.
US.
and
Beer
v.
US.,
in
1975
and
1976
respectively, began to limit the
substance of the changes which would be viewed
as
violating
Section
5
restrictions
on abridgement of the right to vote. IVhereas the earlier decisions were strictly
procedural
Richmond
and
Beer
finally raised the issue of what governmental
ao
tions may be rejected by the Attorney General without constituting an abuse of
power. In these two cases the Court, by narrow majorities, relied on essentially un-
persuasive and inconsistent arguments to circumscribe the meaning of Section
5
and
restrict the discretion
of
the Attorney General. And it will also be suggested that
despite superficial appearances to the contrary the two decisions of the Court in
the Spring of
19770J
have not reversed this trend.
In
Richmond
the Supreme Court reversed the decision of the
U.S.
District
Court for the District of Columbia. The
D.C. Court had refused to grant
a
decla-
ratory judgment favoring Richmond’s annexation of part of Chesterfield County.
The annexation reduced the black population in Richmond from
52
to
42
percent
and available evidence suggested clear discriminatory intent. It was only after
a
CI
Richmond,
Va.
v.
U.S.
95 S.Ct. 2296 (1975).
ea
Beer
v.
U.S.
96 S.Ct. 1357 (1976).
91
During the 1974, 1975, and 1976 October terms of the Supreme Court the Court rendered
seven decisions on Section
5.
Two
of
these were procedural rulings on the submissability
of
legislative reapportionment plans:
Connor
v.
Waller
95 S.Ct. 2003 (1975) and
U.S.
v.
Board
of
Supervisors, Warren County, Mississippi
97 S.Ct. 833 (1977).
A
third case
held nonsubmissable under Section
5
those reapportionment
plans
adopted
by
courts
under their equitable jurisdiction:
East Carroll Parish
v.
AfarshaIl
(1976).
The
other four decisions of the Court were considerably more controversial
and in each the Court rejected the claims by (or on behalf
of)
individuals that their
electoral rights had been abridged. See,
Richmond, Virginia
v.
U.S. 95
S.Ct. 2296
(1975).
Beer
v.
U.S.
United Iewish Organizations
v.
Carey
S.Ct. 996 (1977) and
Morris
v.
Cressette
97 S.Ct. 241
1
(1977).
United Jewish Organizations
v.
Carey
and
Morrisv. Gressette.
170
Wcstcrn Political Qmrterly
forecast was made that blacks would take political control
of
Richmond that the
annexation was effected
as
insurance for the white power In
a
totally
unprecedented interpretation
of
Section
5
the Court remanded the case for con-
sideration of whether then current non-racial factors might serve to justify the
1969
annesation.
By
a
five
to
three vote the Court held that the existence of, “objectively
verifiable legitimate purposes for the anne~ation’’~~ would be acceptable as
a
post
hoc rationalization
of
the annexation and would absolve the city of any “guilt”
under Section
5.
The
Rickmoiid
decision
was
a very bad piece of statutory exegesis and
a
very
dangerous precedent. Section
5
covers discriminatory ccpurposes” and “effects”;
Richmond’s actions satisfied both when meeting either would have been sufficient
to be disallowed. IVhy did the Court not disalIoiv the annesation
as
per the recom-
mendations
of
the Special hiaster? The key to understanding the conclusion
reached by the Court lies in an appreciation
of
the judicial behavior of Justice Potter
Stewart. Stewart’s unique approach to issue3
of
federalisms7 made him the only
member of the Court to support
a
consistently broad reading of the reaches of
Section
5
in
Allen,
Perkins
and
Georgia
but then to read narrowly the actions of
the states which may be prohibited in
Richmoiid
(and later in
Beer).
Each
of
these five caes was decided in substance by
a
fragile one-vote majority. In each case
Stewart’s vote
was
clearly the pivotal one?*
The Court’s unpredictable decision in
Richmond
may also have been in-
fluenced by the fact that during the
course
of
Richmond’s suit for
a
declaratory
judgment the Attorney General had effected
a
compromise with the city
of
Rich-
mond. In return for
n
system
of
ward-based elections he would withdraw his ob-
iection to the city‘s annexation. Ordinarily that would have ended the matter at
lest
so
far
as
Section
5
is
concerned; but the case
WLS
in litigation and the District
Court was influenced by the intervenor’s and Special Master’s conclusion that only
the detachment
of
the annesed area would satisfy Section
5
standards.
As
the dis-
senters indicate in
Richmond,
the Court’s decision contravened the
goals
of the
Voting Rights Act
as
well
x
the precedent
of
Petersburg
v.
US.
in which annexa-
wTen
Yeacs After,
pp.
302-4.
The
Commission quotes former hlayor BagIey of Richmond
as
sajing,
“AS
lonq
as
I
am Mayor of the City of Richmond the niggers won’t take over
this town”
(at
302).
96
at
2305 (1975).
Stewart’s approach to federalism is unique in that he is the one member of the IVarren and
Burger Courts to be very “liberal” on the procedural issues of federalism but “conserva-
tive”
on
the substantive issues. In practice this has meant that Stewart has usually sup-
ported the authority of the federal organs of government
to
scrutinize
state policies but
has been very reluctant to
allow
the federal government the power to reject the state
practices. Many areas of constitutional adjudication provide data in support of this
thesis but the case law on reapportionment provides the most apt illustration. Only
Stewart
was
supportive of the authority
of
the federal courts to adjudicate the consti-
tutional issues raised by malapportionment while taking the position that most alleged
maIapportionment was constitutionally permissable.
See.
for
example,
Baker
v.
Cum
8-3
S.Ct.
691 (1962),
Lucas
v.
44th General Assembly
of
Colorado
1459 (1964),
and
Auery
v.
Midland
County,
Texas
His voting behavior in
reapportionment cases was thus unique. In Section
5
cases his unique pattern has been
repeated. He has been “liberal” on requiring submission of electoral changes under
Section
5
but beginning with
Richmond
has rejected
a
broad reading
of
what changes
in state electoral
laws
are actually prohibited by Section
5.
FVhile Burger and Blackmun voted with the Court in
Perkins
and
Georgia
it was
a
reluctant
vote based on their view that
Allen
was
controlling. They have suggested that had they
been
on
the Court when
Allen
was
decided in
1969
they would have voted against
a
broad reading of Section
5.
Thus,
Perkins,
Georgia,
Richmond,
and
Beer
were really
substantive (opinion) majorities of one in which Stewart
was
the swing and pivotal
vote
in that only he fully subscribed to the Court opinions in
all
of these
cases.
In Richmond
the vote
was
five to three
(Powell
not participating). Had Stewart joined the dissenters
the result would have been
a
practical affirmance of the District Court’s jud.;ment.
Similarly, in
Beer
the five-to-three decision (Stevens not participating) would have
been resolved in favor of the interests of the black voters had Stewart joined the position
of the dissenters.
Section
5
of
the
1965
Voting Rights Act
171
tion dilutive of the black vote
was
deemed illegal even without discriminatory
intent.99
Once again in
Beer
the Court by
a
five-to-three vote reversed
a
D.C.,District
Court refusal of
a
declaratory judgment. The city of New Orleans had sought this
decree after the Attorney General rejected the reapportionment plan it had adopted
for its city council in 1971. The Attorney General thought the plan violative of
Section
5
because it diluted the black vote in the city, especially because of the
continued partial reliance on at-large seats on the council. The Supreme Court
made two important ruling in
Beer.
First,
it held that only
new aspects
of
a
plan
may be reviewed and, second, only those plans which
zuorsen
the electoral position
of
blacks may suffer the objection of the Department of Justice.1O” The Court, per
Stewart, reasoned that the at-large aspect of the plan, in effect since 1954, was not
subject to review under Section
5.
He
also
ruled that the new plan might improve
black voting strength and therefore could not be deemed dilutive.lol
There
are
at least two difficulties in the Court’s decision. First, the idea that
only the completely new aspects of an electoral change are subject to the objection
of the Attorney General runs counter to both
Petersburg
and
Richmond.
In both
of those cases the Attorncy General had rejected
tlie
continued use
of at-large
municipal electoral systems. His approval of the annexations was conditioned on
the adoption of ward based electoral systems. In
Richmond
and
Petersburg
the
Court had upheld the discretion of the Attorney General to
force
cities
to
alter the
preexisting aspects of their election
lam.
Similarly, the Court ruling that dilution
is to be measured only by comparison with the pre-existing electoral strength of
blacks is clearly contrary to the entire history of voting rights litigation in which
dilution has been measured by the ratio of adult blacks to political representation.
Adoption of the Court’s formulation has the serious consequence
of
rewarding those
jurisdictions with
a
history of the worst dilution of black electoral strength. Under
the Court’s dictum those jurisdictions are, under Section
5,
free to pursue severe
discrimination. As long as the dilution is less severe than that previously existing
the Attorney General
is
powerless
to
While the data on congressional
intention in this regard is mixed1OS on the basis of equitable principles the Court
ought not to have rewarded
a
history
of discrimination by
so
circumscribing the
discretion of the Attorney General.
In the Spring of 1977 the Supreme Court made two decisions which appear
to expand the discretion of the Attorney General under Section
5
but any modifica-
tion of
Beer
and
Richnioiid
in this regard is illusory. In
United Jewish Organira-
tiotis
v.
Carey‘lo4
the Court rejected
a
challenge
to
the Neiv York state legislative
apportionment brought by Hasidic Jewish voters in Brooklyn. The Hasidim ob-
jected to the apportionment plan for Kings County which split their voting strength
between two districts and thus ended their electoral control of
an
Assembly district.
They argued unsuccessfully that the Attorney General had exceeded his authority
under Section
5
when he required that Neiv York adopt
a
racially based apportion-
ment plan.’0s While the opinion of the Court appeared to argue for broad dis-
pJ
at
2312 (1975).
lc0
at
1361-64
passim
(1976).
Ibid.
\VhiIe one might still institute
a
traditional
Equal
Protection suit against the jurisdiction
it
is
not entirely clear if the Supreme Court’s formuIa for dilution under Section
5
was
not
a
“trial balloon” for an Equal Protection standard for determining racial discrimina-
tion in voting. See
at
1364
footnote
#14
(1976).
lo’
On this point see, for example, in
Beer
Stewart’s aqgument for the Court,
at
1361-64
versus the dissents of Marshall and FVhite, ibid. at
1365-74
passim.
IM
996 (1977).
‘OJ
The
New
York plan, adopted to meet the actual and anticipated reactions
of
the Attorney
General, included “substantial majorities” of non-white voters in
30
percent of
the
dis-
172
Western Political Q.iarterly
cretion for the Attorney General under Section
5
it
is
a
decision that
is
unlikely to
be of significant precedential value in this respect.
First, Justice White, writing for the Court, argued effectively that racially
based districting is not only appropriate under Section
5,
but is essential if the
non-retrogrcssion principle of
Beer
is to be effected.’Os White reasoned that
a
state
would have to consider the race of voters if it was to prevent
a
dilution of the
existing minority voting power in its new plan. The record of the U.j.0. case
lacked data on the history
of
the voting strength of nonwhites in Kings County
from which to judge if the particular districting in question was “necessary” to
prevent retrogression. Because it did not have clear electoral data the Court
merely assumed that the plan was designed to fulfill that obligation. Thus, the
decision simply echoes
Beer
in its adoption of the principle that the Attorney Gen-
eral is limitcd to preventing
ietrogression
of the black vote.
Second, the
U.j.0.
decision is limited
as
a
precedent in support of the dis-
cretion of the Attorney General because the Attorney General was not the object
of the suit. The Hasidim sued the
state
which had
voluntarily
adopted the racially
based plan to overcome the objections of the Attorney General to an earlier plan.
But the critical element is that the state had not objected to meeting the reservations
of the Attorney General about the 1972 plan. It is instructive
in
this regard that the
plan actually instituted was one rccomrnended only informally by an unnamed
em-
ployee of the Department of Justice. The state never entered into litigation with
the Department
of
Justice over the 1972 plan which the latter had rejected.
The
real issue of
U.J.O.
was
whether the state had the power to enact
a
particular re-
apportionment plan and not whether the Attorney General had the authority to
order the adoption
of
that plan. In short, the decision in
U.J.O.
ought not to be
read as an expansion
of
the discretion of the Attorney General under Section
5
because the decision is bascd on
Beer
which clearly limits this discretion, and the
actions of the Attorney General were not the real issue in the suit.
One
also
cannot view the decision of the Court in
Morris
v.
Gressetteio7
as
an
expansion of the discretion of the Attorney General under Section
5
because the
discretion afforded by the decision was purely negative. In
Morris
the Court held
that the federal courts may not review the decision of the Attorney General
not
to
object to
a
submitted electoral change. While the decision increased the autonomy
of the Attorney General it did
so
only for those instances where he has chosen not
to interfere with an electoral change no matter how discriminatory the change may
be. Thus, the impression that the decisions of the Court in either U.
j.0.
or
A40r~ii
reversed the trend of
Richmond
and
Beer
is largely erroneous.
U.J.O.
did not
expand the discretion of the Attorney General under Section
5,
and
Morris
in-
creased only his discretion not to enforce Section
5.
The decisions in
Richmond,
Beer,
U.j.0.
and
Morris
are
all
supportive of the autonomy of state and local gov-
ernments vis-h-vis the Attorney General and
as
such do not promote effective use of
Section
5
as
a
weapon npinst racial inequality in the electoral
process.
CONCLUSION
The analysis
of
the role of the courts under Section
5
of
the Voting Rights Act
has suggested that the federal
courts
have been important in shaping the meaning
of
Section
5.
Through court decisions during the past twelve years the potential
effectiveness of Section
5
as
a
weappn against racial discrimination in voting
has
tricts
of
Kings County. The state admitted that the boundaries
for
the legislative
dis-
tricts were selected
on
the basis
of
the racial composition
of
the community. Kings
County
was
35
percent non-white.
at
1007 (1977).
Irn
97
S.Ct.
241
1
(1977).
Section
5
of
the
1965
Voting
Rights
Act
173
been determined. When covered governments have been reluctant to submit their
electoral changes for prcclearance under Section
5
the ruling of thc Supreme Court
broadening the scope of Section
5
coverage have been critical because in numerous
instances lower federal courts had read the statute very narrowly.
Thus
it was
decisions of the Supreme Court which required the submission
of
plans for reap-
portionment, boundary alteration, and changes in
rules
covering candidacies that
have made Section
5
an enormously important section of the Voting Rights Act.
This is not to suggest that the rulings of the Supreme Court have rcsulted in uni-
versal submission of electoral changes by the covered jurisdictions.
In
recent years
one may still find instances of the Attorney General suing jurisdictions which have
ignored Section
5?OS
But the decisions
of
the Supreme Court from
Allen
in 1969
through
Petersburg
in 1973 were critical for their recognition that electoral arrange-
ments and not just voter qualifications must be submitted under the terms of Seo
tion
5
in order to render the law meaningful and effective.
In contrast
with
Supreme Court rulings supportive of the goals
of
Section
5
in two important respects the Court has in recent years reduced the potential effec-
tiveness of the law. In immunizing court ordered reapportionment plans from Sec-
tion
5
review and in limiting the authority of the Attorney General to object to
plans submitted to him, the Court has rendered
a
number
of
ill advised and poorly
justified decisions. The impact of the
Court's
decisions in
Richmond
and
Beer
are
the most problematical and the long-range effect of their respective limitations on
the authority of the Attorney Gcneral cannot be immediately predicted. In the
recent past the
major
problem facing the Civil Rights Division has been the gather-
ing of accurate information to insure that all changes subject to submission are in
fact
submitted and to insure that it has had sufficient data for assessing the legality
of
the submitted changes. In the future it is possible that this difficulty will be
rivaled in significance by the restrictions on the power of
the
reviewing authority
(the Attorney General
or
the
U.S.
District Court for the District of Columbia)
under
Richmond
and
Beer
to
raise objections to plans it deems discriminatory.
'"See, for example,
U.S.
v.
Garner
(N.D.
Ga. 1972) which challenged
the refusal of Jonesboro, Georgia, to submit its change from plurality
to
majority vote
requirement for municipal elections; and
US.
v.
Cohan
where
the Attorney General objected to the non-submission by Hincsville, Georgia, of
a
change from
a
straight at-large system for electing the city council to
a
system of at-large
elections for numbered posts. And in 1977 the District Court rejected the claim by Hale
County, Alabama, that Section
5
was
not applicable to its electoral changes in
U.S.
v.
County
Commission, Hale County, Alabama
425 FSupp. 433
(S.D.
Ala. 1977).
To continue reading
Request your trial