On November 5, 1971, the State of Georgia submitted to the
Attorney General for consideration under § 5 of the Voting Rights
Act its 1971 House reapportionment plan. Two weeks later, the
Attorney General requested additional information, which was
received on January 6, 1972. On March 3, the Attorney General,
after citing the combination,
inter alia, of multi-member
districts, majority runoff elections, and numbered posts, objected
to the plan, being unable to conclude that it did not have a
discriminatory racial effect on voting. The state legislature then
enacted its superseding 1972 plan, which was submitted on March 15
and rejected by the Attorney General on March 24 as not overcoming
previous objections. The United States brought this suit to enjoin
the holding of elections under the 1972 plan after the legislature
decided against a new reapportionment. A three-judge District Court
held that the 1972 plan came under § 5 of the Act, and issued an
injunction.
Held:
1. Georgia's 1972 reapportionment changes, which have the
potential for diluting Negro voting power, are "standards,
practices, or procedures with respect to voting" within the meaning
of § 5 of the Voting Rights Act,
cf. Allen v. State Board of
Elections, 393 U. S. 544. Pp.
411 U. S.
531-535.
2. The Attorney General, applying a permissible regulation,
placed the burden on Georgia as the submitting party to prove that
the plan did not have a racially discriminatory purpose or effect
on voting, and the State failed to meet that burden. Pp.
411 U. S.
536-539.
3. Georgia's claim that the Attorney General did not seasonably
object to the 1971 plan may well be moot in view of his timely
objection to the superseding 1972 plan, but, in any event, that
claim lacks merit, as the Attorney General's regulation that the
statutory 60-day period begins to run from the time that necessary
information is furnished is reasonable, and comports with the Act.
Pp.
411 U. S.
539-541.
4. Elections having been conducted under the 1972 plan under
this Court's stay order, new elections are not required, but
future
Page 411 U. S. 527
elections under that plan will be enjoined until a plan
withstanding § 5 clearance procedures is submitted. P.
411 U. S.
541.
351 F.
Supp. 444, affirmed and remanded.
STEWART, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BURGER,
C.J., filed an opinion concurring in the result,
post, p.
411 U. S. 541.
WHITE, J., filed a dissenting opinion in which POWELL and
REHNQUIST, JJ., joined,
post, p.
411 U.S. 542. POWELL, J., filed a
dissenting opinion,
post p.
411 U. S.
545.
MR. JUSTICE STEWART delivered the opinion of the Court.
The Attorney General of the United States brought this suit
under § 12(d) of the Voting Rights Act of 1965 as amended, 42
U.S.C. § 1973j(d), to enjoin the State of Georgia from conducting
elections for its House of Representatives under the 1972
legislative reapportionment law. A three-judge District Court in
the Northern District of Georgia agreed that certain aspects of the
reapportionment law came within the ambit of § 5 of the Act, 42
U.S.C. § 1973c, and that the State, which is subject
Page 411 U. S. 528
to the provisions of § 5, [
Footnote 1] had not obtained prior clearance from either
the Attorney General or the District Court for the District of
Columbia. Accordingly, and without reaching the question whether
the reapportionment plan had the purpose or effect of "denying or
abridging the right to vote on account of race or color," 42
U.S.C.1973c, the District Court issued the requested injunction.
[
Footnote 2] The State brought
this appeal. We noted probable jurisdiction, staying enforcement of
the District Court judgment pending disposition of the appeal. 409
U.S. 911.
Following the 1970 Census, the Georgia Legislature set out to
reapportion its State House of Representatives, State Senate, and
federal congressional electoral districts. We are here concerned
only with the reapportionment plan for the State House of
Representatives. [
Footnote 3]
The result of the legislature's deliberations was a plan
(hereinafter the 1971 plan) that, as compared with the prior 1968
scheme, decreased the number of districts from 118 to 105 and
increased the number of multi-member districts from 47 to 49.
Whereas the prior apportionment plan had generally preserved county
lines, the 1971 plan did not: 31 of the 49 multi-member districts
and 21 of the 56 single member districts irregularly crossed county
boundaries. The boundaries of nearly all districts were changed,
and, in many instances, the number of representatives
Page 411 U. S. 529
per district was altered. Residents of some 31 counties formerly
in single member districts were brought into multi-member
districts. Under continuing Georgia law, a candidate receiving less
than a majority of the votes cast for a position was required to
participate in a majority runoff election. Ga.Code Ann. § 34-1513.
And in the multi-member districts, each candidate was required to
designate the seat for which he was running, referred to as the
"numbered post." Ga.Code Ann. § 34-1015.
Section 5 of the Voting Rights Act forbids States subject to the
Act from implementing any change in a "voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting" without first obtaining a declaratory judgment
from the District Court for the District of Columbia that the
proposed change "does not have the purpose and will not have the
effect of denying or abridging the right to vote on account of race
or color," or submitting the plan to the Attorney General of the
United States and receiving no objection within 60 days. 42 U.S.C.
§ 1973c. Pursuant to this requirement, the State of Georgia
submitted the 1971 plan to the Attorney General on November 5,
1971. Two weeks later, a representative of the Department of
Justice wrote to the State Attorney General, requesting further
information needed to assess the racial impact of the tendered
plan. [
Footnote 4] This
information was received on January 6, 1972, and on March 3, 1972,
the Attorney General of the United States formally objected to the
State's plan. The objection letter cited the combination
Page 411 U. S. 530
of multi-member districts, numbered posts, majority runoff
elections, and the extensive departure from the State's prior
policy of adhering to county lines. On the basis of these changes,
plus particular changes in the structure of potential black
majority single member districts, the Attorney General was "unable
to conclude that the plan does not have a discriminatory racial
effect on voting." The letter stated that the Attorney General
therefore felt obligated to "interpose an objection to changes
submitted by these reapportionment plans."
The State Legislature immediately enacted a new reapportionment
plan and repealed its predecessor. The 1972 plan increased the
number of districts from 105 to 128 and decreased the number of
multi-member districts from 49 to 32. Twenty-two of the
multi-member districts and 37 of the single member districts still
crossed county boundaries.
This 1972 plan was submitted to the Attorney General on March
15, and he objected on March 24. The Assistant Attorney General's
letter stated, in part:
"After a careful analysis of the Act redistricting the Georgia
House of Representatives, I must conclude that this reapportionment
does not satisfactorily remove the features found objectionable in
your prior submission, namely, the combination of multi-member
districts, numbered posts, and a majority (runoff) requirement
discussed in my March 3, 1972, letter to you interposing an
objection to your earlier Section 5 submission. Accordingly, and
for the reasons enunciated in my March 3, 1972, letter I must, on
behalf of the Attorney General, object to S.B. 690 reapportioning
the Georgia House of Representatives."
When the Georgia Legislature resolved that it would take no
further steps to enact a new plan, the Attorney General brought the
present lawsuit.
Page 411 U. S. 531
The State of Georgia claims that § 5 is inapplicable to the 1972
House plan, both because the Act does not reach "reapportionment"
and because the 1972 plan does not constitute a change from
procedures "in force or effect on November 1, 1964." If applicable,
the Act is claimed to be unconstitutional as applied. The State
also challenges two aspects of the Attorney General's conduct of
the § 5 objection procedure, claiming, first, that the Attorney
General cannot object to a state plan without finding that it, in
fact, has a discriminatory purpose or effect, and, second, that the
Attorney General's objection to the 1971 plan was not made within
the 60-day time period allowed for objection under the Act.
I
Despite the fact that multi-member districts, numbered posts,
and a majority runoff requirement were features of Georgia election
law prior to November 1, 1964, the changes that followed from the
1972 reapportionment are plainly sufficient to invoke § 5 if that
section of the Act reaches the substance of those changes. Section
5 is not concerned with a simple inventory of voting procedures,
but rather with the reality of changed practices as they affect
Negro voters. It seems clear that the extensive reorganization of
voting districts and the creation of multi-member districts in
place of single member districts in certain areas amounted to
substantial departures from the electoral state of things under
previous law. The real question is whether the substance of these
changes undertaken as part of the state reapportionment are
"standards, practices, or procedures with respect to voting" within
the meaning of § 5.
The prior decisions of this Court compel the conclusion that
changes of the sort included in Georgia's 1972 House
reapportionment plan are cognizable under § 5. In
South
Carolina v. Katzenbach, 383 U. S. 301, we
upheld the
Page 411 U. S. 532
basic constitutionality of the Voting Rights Act. Mr. Justice
Black dissented from that judgment to the extent that it held every
part of § 5 is constitutional, precisely describing the broad sweep
of § 5:
"Section 5 goes on to provide that a State covered by § 4(b) can
in no way amend its constitution or laws relating to voting without
first trying to persuade the Attorney General of the United States
or the Federal District Court for the District of Columbia that the
new proposed laws do not have the purpose, and will not have the
effect, of denying the right to vote to citizens on account of
their race or color."
383 U.S. at
383 U. S. 356
(concurring and dissenting opinion).
The applicability of § 5 to election law changes such as those
enacted by Georgia in its 1972 plan was all but conclusively
established by the opinion of this Court in
Allen v. State
Board of Elections, 393 U. S. 544. The
Allen opinion, dealing with four companion cases, held
that § 5 applied to a broad range of voting law changes, and was
constitutional as applied. With respect to the reach of § 5, we
held that
"[t]he legislative history on the whole supports the view that
Congress intended to reach any state enactment which altered the
election law of a covered State in even a minor way."
Id. at
393 U. S. 566.
One of the companion cases,
Fairley v. Patterson, involved
a claim that a change from district to at-large voting for county
supervisor was a change in a "standard, practice, or procedure with
respect to voting." The challenged procedure was held to be covered
by § 5. We noted that
"[t]he right to vote can be affected by a dilution of voting
power as well as by an absolute prohibition on casting a ballot.
See Reynolds v. Sims, 377 U. S. 533,
377 U. S.
555 (1964)."
Id. at
393 U. S. 569.
In holding that § 5 reached voting law changes that threatened to
dilute
Page 411 U. S. 533
Negro voting power, and in citing
Reynolds v. Sims, we
implicitly recognized the applicability of § 5 to similar but more
sweeping election law changes rising from the reapportionment of
state legislatures. 393 U.S. at
393 U. S.
565-566,
393 U. S.
583-586 (Harlan, J., concurring and dissenting).
Had Congress disagreed with the interpretation of § 5 in
Allen, it had ample opportunity to amend the statute.
After extensive deliberations in 1970 on bills to extend the Voting
Rights Act, during which the
Allen case was repeatedly
discussed, [
Footnote 5] the Act
was extended for five years, without any substantive modification
of § 5. Pub.L. 91-285, 84 Stat. 314, 315. We can only conclude,
then, that
Allen correctly interpreted the congressional
design when it held that "the Act gives a broad interpretation to
the right to vote, recognizing that voting includes
all action
necessary to make a vote effective.'" 393 U.S. at 393 U. S.
565-566.
Another measure of the decisiveness with which
Allen
controls the present case is the actual practice of covered States
since the
Allen case was decided. Georgia, for example,
submitted its 1971 plan to the Attorney General because it clearly
believed that plan was covered by § 5. Its submission was "made
pursuant to § 5," and the State Attorney General explained in his
submission that the 1968 reapportionment of the Georgia House of
Representatives
Page 411 U. S. 534
"was not submitted because, at that time, prior to
Allen v.
Board of Elections, . . . it was believed to be unnecessary to
submit reapportionment plans to the United States Attorney General
pursuant to the Voting Rights Act of 1965."
When the Attorney General objected, Georgia changed its House
plan and resubmitted it pursuant to § 5. Other States covered by
the Act have also read
Allen as controlling. The brief for
the United States advises us that, as of December 1, 1972, 381
post-
Allen reapportionment plans had been presented to the
Attorney General by various States for § 5 approval. In the present
posture of this case, the question is not whether the redistricting
of the Georgia House, including extensive shifts from single member
to multi-member districts, in fact had a racially discriminatory
purpose or effect. The question, rather, is whether such changes
have the potential for diluting the value of the Negro vote, and
are within the definitional terms of § 5. It is beyond doubt that
such a potential exists,
cf. Whitcomb v. Chavis,
403 U. S. 124,
403 U. S.
141-144. In view of the teaching of
Allen,
[
Footnote 6] reaffirmed in
Perkins v.
Matthews, 400 U.S.
Page 411 U. S. 535
379, we hold that the District Court was correct in deciding
that the changes enacted in the 1972 reapportionment plan for the
Georgia House of Representatives were within the ambit of § 5 of
the Voting Rights Act. [
Footnote
7] And for the reasons stated at length in
South Carolina
v. Katzenbach, 383 U.S. at
383 U. S.
308-337, we reaffirm that the Act is a permissible
exercise of congressional power under 2 of the Fifteenth
Amendment.
Page 411 U. S. 536
II
By way of implementing the performance of his obligation to pass
on state submissions under § 5, the Attorney General has
promulgated and published in the Federal Register certain
administrative regulations, 28 CFR Part 51. The appellants claim
these regulations are without legislative authorization, and object
in particular to the application in the present case of two
regulations which set forth the standards for decision on
submissions and more fully define the 60-day time period provided
in the Act.
It is true, as the appellants contend, that § 5 itself does not
authorize the Attorney General to promulgate any regulations. But §
5 is also silent as to the procedures the Attorney General is to
employ in deciding whether or not to object to state submissions,
as to the standards governing the contents of those submissions,
and as to the meaning of the 60-day time period in which the
Attorney General is to object, if at all. Rather than reading the
statute to grant him unfettered discretion as to procedures,
standards, and administration in this sensitive area, the Attorney
General has chosen instead to formulate and publish objective
ground rules. If these regulations are reasonable and do not
conflict with the Voting Rights Act itself, then 5 U.S.C. § 301,
which gives to "[t]he head of an Executive department" the power to
"prescribe regulations for the government of his department, . . .
[and] the distribution and performance of its business . . . ," is
surely ample legislative authority for the regulations.
See
United States v. Morehead, 243 U. S. 607;
Smith v. United States, 170 U. S. 372.
In 28 CFR § 51.19, the Attorney General has set forth the
standards to be employed in deciding whether or not to object to a
state submission. The regulation states that the burden of proof is
on the submitting party, and
Page 411 U. S. 537
that the Attorney General will refrain from objecting only if
his review of the material submitted satisfies him that the
proposed change does not have a racially discriminatory purpose or
effect. If he is persuaded to the contrary, or if he cannot, within
the 60-day time, period satisfy himself that the change is without
a discriminatory purpose or effect, the regulation states that the
Attorney General will object to the submission. [
Footnote 8] In objecting to the 1971 plan,
the Assistant Attorney General wrote that he was "unable to
conclude that the plan does not have a discriminatory racial effect
on voting." The objection letter to the 1972 plan did not specify a
degree of certainty as to the plan's discriminatory impact, but
instead stated that the new plan had not remedied the features
found objectionable in its predecessor.
Although both objections were consistent with the Attorney
General's regulations, the appellants, in effect, attack the
legitimacy of the regulation described above in contending that the
Attorney General is without power to object unless he has actually
found that the changes contained in a submission have a
discriminatory purpose or effect.
Page 411 U. S. 538
In assessing this claim, it is important to focus on the entire
scheme of § 5. That portion of the Voting Rights Act essentially
freezes the election laws of the covered States unless a
declaratory judgment is obtained in the District Court for the
District of Columbia holding that a proposed change is without
discriminatory purpose or effect. The alternative procedure of
submission to the Attorney General "merely gives the covered State
a rapid method of rendering a new state election law enforceable."
Allen v. State Board of Elections, 393 U.S. at
393 U. S.
549.
It is well established that, in a declaratory judgment action
under § 5, the plaintiff State has the burden of proof. [
Footnote 9] What the Attorney General's
regulations do is to place the same burden on the submitting party
in a § 5 objection procedure. Though the choice of language in the
objection letter sent to the State of Georgia was not a model of
precision, in the context of the promulgated regulations, the
letter surely notified the State with sufficient clarity that it
had not sustained its burden of proving that the proposed changes
were free of a racially discriminatory effect. It is not necessary
to hold that this allocation of the burden of proof by the Attorney
General was his only possible choice under the Act in order to find
it a reasonable means of administering his § 5 obligation. Any less
stringent standard might well have rendered the formal declaratory
judgment procedure a dead letter by making available to covered
States a far smoother path to clearance. The Attorney General's
choice of a proof standard was thus at least reasonable
Page 411 U. S. 539
and consistent with the Act, and we hold that his objection
pursuant to that standard was lawful and effective.
The appellant's final contention is that the Attorney General's
objection to the 1971 plan was untimely, and so the submitted plan
should have been held by the District Court to have gone into
effect. It is far from clear that this claim is not simply moot,
since the state enactment establishing the 1972 plan explicitly
repealed the 1971 plan, [
Footnote 10] and the objection to the 1972 plan was
clearly within the statutory time period. In any event, the claim
is without merit.
In promulgating regulations, the Attorney General dealt with
several aspects of the 60-day time limit established by § 5 of the
Act. The regulations provide that all calendar days count as part
of the allotted period, that parties whose submissions are objected
to may seek reconsideration on the basis of new information and
obtain a ruling within 60 days of that request, and that the 60-day
period shall commence from the time the Department of Justice
receives a submission satisfying the enumerated requirements. 28
CFR § 51.3(b)-(d).
In the present case, the Attorney General found the initial
submission of the 1971 plan incomplete under the regulations. Two
weeks after receiving it, he requested additional information.
[
Footnote 11] His letter
referred to 28 CFR
Page 411 U. S. 540
§ 51.18, a regulation providing for a request for additional
information, and noted the additional regulatory provision that the
60-day period would not commence until the information was
received. The State did not submit the requested data until January
6, 1972. Under the above-mentioned regulation, the 60-day period
commenced on that date, and the Department of Justice made its
objection within 60 days -- on March 3.
The appellants argue that the Attorney General has granted
himself more time than the statute provides by promulgating
regulations suspending the time period until a complete submission
is received. Here again, the question is whether the regulation is
a reasonable administrative effectuation of § 5 of the Act. The
judgment that the Attorney General must make is a difficult and
complex one, and no one would argue that it should be made without
adequate information. There is no serious claim in this case that
the additional information requested was unnecessary or irrelevant
to § 5 evaluation of the submitted reapportionment plan. [
Footnote 12] Yet, if the Attorney
General were denied the power to suspend the 60-day period until a
complete submission were tendered, his only plausible response to
an inadequate or incomplete submission would be simply to object to
it. He would then leave it to the State to submit adequate
Page 411 U. S. 541
information if it wished to take advantage of this means of
clearance under § 5. This result would only add acrimony to the
administration of § 5. We conclude, therefore, that this facet of
the Attorney General's regulations is wholly reasonable, and
consistent with the Act. [
Footnote 13]
III
For the foregoing reasons, the judgment of the District Court is
affirmed. Since, however, elections were conducted under the
disputed 1972 plan by reason of this Court's stay order, it would
be inequitable to require new elections at this time.
The case is remanded to the District Court with instructions
that any future elections under the Georgia House reapportionment
plan be enjoined unless and until the State, pursuant to § 5 of the
Voting Rights Act, tenders to the Attorney General a plan to which
he does not object, or obtains a favorable declaratory judgment
from the District Court for the District of Columbia.
It is so ordered.
[
Footnote 1]
A State is subject to § 5 if it qualifies under § 4(b), 42
U.S.C. § 1973b(b). Covered States are those which, on November 1,
1964, employed any of several enumerated tests or devices as a
prerequisite to voting, and in which less than 50% of eligible
voters were registered to vote or actually voted in the November,
1964, presidential election. States that meet identical criteria
with respect to the 1968 presidential election are also covered
under the amended Act. It is stipulated that Georgia is covered
under § 4(b).
[
Footnote 2]
351 F.
Supp. 444, 446-447.
[
Footnote 3]
No objection was interposed with respect to the State Senate or
federal congressional districts.
[
Footnote 4]
The Justice Department asked for census maps of the 1964 and
1968 House districts; the distribution of white and nonwhite
population within the 1964, 1968, and 1971 districts; a history of
the primary and general elections in which Negro candidates ran;
data, including race, with respect to all elected state
representatives; and the legislative history of all redistricting
bills.
[
Footnote 5]
See, e.g., Hearings before Subcommittee No. 5 of the
House Committee on the Judiciary on H.R. 4249, H.R. 5538, and
Similar Proposals, 91st Cong., 1st Sess., 1, 4, 18, 83, 130 131,
133, 147-149, 154-155, 182-184, 402-454; Hearings before the
Subcommittee on Constitutional Rights of the Senate Committee on
the Judiciary on Bills to Amend the Voting Rights Act of 1965, 91st
Cong., 1st and 2d Sess., 48, 195-196, 369-370, 397-398, 426-427,
469. David L. Norman, then Deputy Assistant Attorney General, Civil
Rights Division, testified that,
"from court decisions, all these redistricting plans are going
to have to be submitted to the Attorney General for his approval
because they are voting changes."
Senate Hearings,
supra, at 507.
[
Footnote 6]
The appellants point to language in the
Allen opinion
that, they say, left open the question of the applicability of § 5
to a state reapportionment law. The cited passage in
Allen
is as follows:
"Appellees in No. 25 [
Fairley v. Paterson] also argue
that § 5 was not intended to apply to a change from district to
at-large voting, because application of § 5 would cause a conflict
in the administration of reapportionment legislation. They contend
that, under such a broad reading of § 5, enforcement of a
reapportionment plan could be enjoined for failure to meet the § 5
approval requirements, even though the plan had been approved by a
federal court. Appellees urge that Congress could not have intended
to force the States to submit a reapportionment plan to two
different courts."
"We must reject a narrow construction that appellees would give
to § 5. . . ."
"
* * * *"
". . . The argument that some administrative problem might arise
in the future does not establish that Congress intended that § 5
have a narrow scope; we leave to another case a consideration of
any possible conflict."
393 U.S.
544,
393 U. S.
564-565,
393 U. S. 569.
The caveat implicit in this language would support the appellants'
position only if practical problems of administration had emerged
in the period that has elapsed since
Allen was decided.
This does not appear to have been the case. The brief of the United
States advises us that the Department of Justice has adopted
procedures designed to minimize any conflicts between § 5
administrative review and federal court litigation based on
Fourteenth or Fifteenth Amendment attacks upon state
reapportionment plans. Where a reapportionment plan has been
prescribed by federal judicial decree, the Attorney General does
not review it.
See Connor v. Johnson, 402 U.
S. 690,
402 U. S. 691.
Where a plan has been submitted to the Attorney General and is at
the same time being litigated with respect to a Fifteenth Amendment
claim, the Attorney General has deferred to the judicial
determination regarding racial discrimination. Finally, the number
of instances presenting an administrative-judicial overlap has been
small. Of the 381 reapportionments submitted to the Attorney
General, only 19 of the objected-to submissions were involved in
litigation when submitted.
[
Footnote 7]
Georgia has argued that § 5 approval is needed only with respect
to those electoral districts in which a change in a "standard,
practice, or procedure with respect to voting" occurred. In an
appropriate case, a State might establish that a reapportionment
plan left some districts unaffected by even a minor change with the
potential for diluting the value of the Negro vote. We do not
decide whether Georgia could show the existence of any unaffected
districts in this case, and we leave that issue for consideration
by the District Court on remand.
[
Footnote 8]
Title 28 CFR § 51.19, in pertinent part, states that:
"the burden of proof on the submitting authority is the same in
submitting changes to the Attorney General as it would be in
submitting changes to the District Court for the District of
Columbia. . . . If the Attorney General is satisfied that the
submitted change does not have a racially discriminatory purpose or
effect, he will not object to the change, and will so notify the
submitting authority. If the Attorney General determines that the
submitted change has a racially discriminatory purpose or effect,
he will enter an objection, and will so notify the submitting
authority. If the evidence as to the purpose or effect of the
change is conflicting, and the Attorney General is unable to
resolve the conflict within the 60-day period, he shall, consistent
with the above-described burden of proof applicable in the District
Court, enter an objection and so notify the submitting
authority."
[
Footnote 9]
The very effect of § 5 was to shift the burden of proof with
respect to racial discrimination in voting. Rather than requiring
affected parties to bring suit to challenge every changed voting
practice, States subject to § 5 were required to obtain prior
clearance before proposed changes could be put into effect. The
burden of proof is on "the areas seeking relief."
South
Carolina v. Katzenbach, 383 U. S. 301,
383 U. S.
335.
[
Footnote 10]
See Ga.Senate Bill 690, Mar. 9, 1972.
[
Footnote 11]
The letter sent to the Attorney General of Georgia stated that a
"preliminary examination" of the materials submitted led the
Department of Justice to conclude
"that the data sent to the Attorney General are insufficient to
evaluate properly the changes you have submitted. In accordance
with Sections 51.10(a)(6) and 51.18(a) of the Procedures for the
Administration of Section 5 of the Voting Rights Act of 1965 . . .
, would you please assist us by providing this Department the
following additional information: . . . ."
The promulgated regulations define in 28 CFR § 51.10 the
contents of a submission. Section 51.10(a)(6) states:
"With respect to redistricting, annexation, and other complex
changes, other information which the Attorney General determines is
required to enable him to evaluate the purpose or effect of the
change. Such other information may include items listed under
paragraph (b) of this section. When such other information is
required, the Attorney General shall notify the submitting
authority in the manner provided in § 51.18(a)."
Section 51.10(b) "strongly urges" submitting authorities to
produce the information enumerated to the extent it is available
and relevant to the submitted changes. Virtually all of the
information requested in this case,
see n 4,
supra, falls within the
enumerated categories of § 51.10(b).
[
Footnote 12]
See n 4,
supra.
[
Footnote 13]
The appellants contend that to allow the Attorney General to
promulgate this regulation is to open the way to frivolous and
repeated delays by the Justice Department of laws of vital concern
to the covered States. No such conduct by the Attorney General is
presented here, and, by upholding the basic validity of the
regulation, we most assuredly do not prejudge any case in which
such unwarranted administrative conduct may be shown. Furthermore,
a submission to the Attorney General is not the exclusive mode of
preclearance under § 5. If a State finds the Attorney General's
delays unreasonable, or if he objects to the submission, the State
"may still enforce the legislation upon securing a declaratory
judgment in the District Court for the District of Columbia."
Allen v. Sate Board of Elections, 393 U.S. at
393 U. S.
549.
MR. CHIEF JUSTICE BURGER, concurring in the result.
I concur in the result reached by the Court but I do so under
the mandate of
Allen v. State Board of
Elections,
Page 411 U. S. 542
393 U. S. 544
(1969). I have previously expressed my reservations as to the
correctness of that holding.
See Perkins v. Matthews,
400 U. S. 379,
400 U. S. 397
(1971) (BLACKMUN, J., concurring in judgment).
MR. JUSTICE WHITE, with whom MR. JUSTICE POWELL and MR. JUSTICE
REHNQUIST join, dissenting.
Section 5 of the Voting Rights Act of 1965 provides that a
covered State may not put into effect any change in voting
qualifications or voting standards, practices, or procedures until
it either procures a declaratory judgment from the United States
District Court for the District of Columbia to the effect that the
alteration does not have the purpose, and will not have the effect,
of denying or abridging the right to vote on account of race or
color, or submits the alteration to the Attorney General and an
objection has not been interposed by that official during the
ensuing 60 days. In this case, the Attorney General interposed an
objection on March 24, 1972, to the March g reapportionment plan of
the Georgia House of Representatives, and shortly thereafter sued
to enjoin the use of that plan on the ground that the State had
obtained neither the approval of the Attorney General nor a
declaratory judgment. The District Court held § 5 was applicable to
changes in state apportionment plans, and that the section
prevented the March 9 reapportionment from going into effect.
I agree that, in the light of our prior cases and congressional
reenactment of § 5, that section must be held to reach state
reapportionment statutes. Contrary to the Court, however, it is my
view that the Attorney General did not interpose an objection
contemplated by § 5, and that there was therefore no barrier to the
March 9 reapportionment's going into effect.
It is arguable from the sparse language of the Act, which merely
says that the State's modification will go
Page 411 U. S. 543
into effect unless the Attorney General enters an objection,
that any objection whatsoever filed by that official will suffice
to foreclose effectiveness of the new legislation and force the
State into the District Court with the burden of proving that its
law is not unconstitutional. I cannot believe, however, that
Congress intended to visit upon the States the consequences of such
uncontrolled discretion in the Attorney General. Surely, objections
by the Attorney General would not be valid if that officer
considered himself too busy to give attention to § 5 submissions,
and simply decided to object to all of them, to one out of 10 of
them, or to those filed by States with governors of a different
political persuasion. Neither, I think, did Congress anticipate
that the Attorney General could discharge his statutory duty by
simply stating that he had not been persuaded that a proposed
change in election procedures would not have the forbidden
discriminatory effect. It is far more realistic and reasonable to
assume that Congress expected the Attorney General to give his
careful and good faith consideration to § 5 submissions, and,
within 60 days after receiving all information he deemed necessary,
to make up his mind as to whether the proposed change did or did
not have a discriminatory purpose or effect, and, if it did, to
object thereto.
Although the constitutionality of § 5 has long since been
upheld,
South Carolina v. Katzenbach, 383 U.
S. 301 (1966), it remains a serious matter that a
sovereign State must submit its legislation to federal authorities
before it may take effect. It is even more serious to insist that
it initiate litigation and carry the burden of proof as to
constitutionality simply because the State has employed a
particular test or device and a sufficiently low percentage of its
citizens has voted in its elections. And why should the State be
forced to shoulder that burden where its proposed change is so
colorless that the
Page 411 U. S. 544
country's highest legal officer professes his inability to make
up his mind as to its legality? If he is to object, must he not
himself conclude that the proposed change will have the forbidden
purpose or effect? Given such a proper objection, the matter would
take on a familiar adversary cast, and there would then appear to
be a solid basis -- at least the probable cause that a federal
charge usually imports -- for insisting on judicial clearance.
Moreover, the issues between the State and the United States, as
well as the litigative burden the State would have to bear, could
be known and examined and intelligent decision made as to whether
to institute suit in the District Court. As it is, the State may be
left more or less at sea, for the Attorney General need merely
announce that he is not at all convinced that the law submitted to
him is not discriminatory.
My idea as to the obligation of the Department of Justice with
respect to a submission under § 5 is similar to what Congress
itself has provided in § 4, 42 U.S.C. § 1973b(a). Under that
provision, a State otherwise covered by the Act can terminate
coverage as to it by securing a declaratory judgment that no
discriminatory test or device has been used during the past 10
years. In that litigation, the section goes on to provide, the
Attorney General must consent to the entry of such a judgment if
"he has no reason to believe" that a discriminatory test or device
has been used during the 10 years preceding the filing of the
action. Thus, in even the far more important context of determining
whether a State is in any respect covered by the Act, the Attorney
General, if he is to object to a decree favorable to the State,
must have reason to believe, and so state, that tests or devices
with the prohibited effect have been employed in the past. Surely,
where the issue is not termination
vel non, but the
purpose and effect of a single statute, regulation, or other
modification of voting procedures, it
Page 411 U. S. 545
is not untoward to insist that the Attorney General not object
to the implementation of the change until and unless he has reason
to believe that the amendment has the prohibited purpose or effect.
He should not be able to object by simply saying that he cannot
make up his mind or that the evidence is in equipoise.
MR. JUSTICE POWELL, dissenting.
For the reasons stated in his opinion, I agree with MR. JUSTICE
WHITE that the Attorney General did not comply with § 5 of the
Voting Rights Act, 42 U.S.C. § 1973c, and that, therefore,
Georgia's reapportionment act should have been allowed to go into
effect. It is indeed a serious intrusion, incompatible with the
basic structure of our system, for federal authorities to compel a
State to submit its legislation for advance review.
* As a minimum,
assuming the constitutionality of the Act, the Attorney General
should be required to comply with it explicitly and to invoke its
provisions only when he is able to make an affirmative finding
rather than an ambivalent one.
* As Mr. .Justice Black stated, the power vested in federal
officials under § 5 of the Act to veto state laws in advance of
their effectiveness "distorts our constitutional structure of
government."
South Carolina v. Katzenbach, 383 U.
S. 301,
383 U. S. 358
(1966) (concurring and dissenting). A similar appraisal was made by
Mr. Justice Harlan, who characterized § 5, as construed by the
Court, as "a revolutionary innovation in American government."
Allen v. State Board of Elections, 393 U.
S. 544,
393 U. S. 585
(1969) (concurring and dissenting). I have no doubt as to the power
of the Congress under the Fifteenth Amendment to enact appropriate
legislation to assure that the rights of citizens to vote shall not
be denied, abridged, or infringed in any way "on account of race,
color, or previous condition of servitude." Indeed, in my view,
there is more than a power to enact such legislation, there is a
duty. My disagreement is with the unprecedented requirement of
advance review of state or local legislative acts by federal
authorities, rendered the more noxious by its selective application
to only a few States.