Application for injunction to prevent City of Anniston from
holding election to choose members of new city council in
accordance with State statute authorizing change from commission to
council-manager form of government denied. In this case, which is
factually distinguishable from Allen v. State Board of
Elections, 393 U. S. 544
election will not result in the severe irreparable harm needed to
justify an injunction; nor has the three-judge panel designated to
hear the case a yet considered the injunction request. Since there
is room for disagreement on this substantial problem, application
is denied without prejudice to request relief from other Court
MR. JUSTICE BLACK, Circuit Justice.
This is an application presented to me as Circuit Justice for an
injunction to prevent the City of Anniston, Alabama, from holding a
local election on September 2, 1969- -- merely a few days from now
-- to select five members of a newly formed city council in
accordance with a state law which authorizes Anniston to change
from a commission to a council-manager form of government.
City Manager Act of 1953, Ala.Code App. § 1124 et
The applicants, all Negro citizens of Anniston, claim that the
election, if held, would violate the terms of § 5 of the Voting
Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed.,
Supp. I), which provides that certain Southern State or political
subdivisions thereof may not make any change in the procedure of
election in effect as of November 1, 1964, unless the change is
Page 396 U. S. 1211
(1) submitted to the United States Attorney General in
Washington for review and he does not object, or (2) submitted to
the United States District Court or the District of Columbia and
that court, after a hearing, permits the change to be made. This
procedure is, of course, a highly unusual departure from the basic
rights of local citizens to govern their own affairs. In this case,
all Anniston is preparing to do is to change from a three-member
commission, elected at large, to a five-member council, also
elected at large.
Last Term, this Court decided, over my dissent, a case which
lends considerable support to the applicants' request that no
election be held until officials in Washington approve it. See
Allen v. State Board of Elections, 393 U.
(1960). Even were I to accept the majority's view
in that case, I do not feel that decision necessarily controls the
present situation, which presents many material factual
differences. More importantly, I remain firmly convinced that the
Constitution forbids this unwarranted and discriminatory
intervention by the Federal Government in state and local affairs.
See South Carolina v. Katzenbach, 383 U.
, 383 U. S.
-362 (1966) (opinion of BLACK, J.).
Intervention by the federal courts in state elections has always
been a serious business. Here, the city has already incurred
considerable expense in preparing for an election to be held within
the next three weeks. If this election were held, applicants could
later bring suit to have it set aside. I thus do not see why these
plans should be stopped in midstream in a case in which the legal
issues are unclear, when the election cannot result in the severe
irreparable harm necessary to justify the issuance of the
extraordinary remedy of an injunction by an individual Justice.
In addition to the foregoing factors, the three-judge panel
designated to hear this case has not yet considered
Page 396 U. S. 1212
the request for an injunction. While the applicants allege that
the panel cannot be convened prior to the date set for the
election, they have at shown that the possibilities of obtaining an
immediate hearing before some three-judge court have been
exhausted. There is no indication that the assistance of the Chief
Judge of the Fifth Circuit, who is statutorily required by 28
U.S.C. § 2284(1) to designate the members of the panel, has been
sought. In this situation, I have considerable doubt as to my
authority to grant the requested relief. See
18(2), 27, and 51(2). Therefore I decline to issue the requested
injunction. Since, however, the problem is substantial and there is
room for disagreement, I deny the application without prejudice to
the rights of the applicants to request relief from other members
of this Court. See
Application denied without prejudice.