In 1968, the Georgia statute covering the voting procedures for
election of the three members of the Peach County Board of
Commissioners of Roads and Revenues was amended so that, instead of
all three posts being filled at four-year intervals, the single
at-large member was to be elected to a two-year term in 1968 and to
a four-year term at subsequent elections. Shortly before the 1976
primary election for two seats on the Board not including the
at-large post, appellants brought an action to enforce § 5 of the
Voting Rights Act of 1965, which requires changes in voting
procedures to be submitted for approval either to the United States
District Court for the District of Columbia or to the Attorney
General. After the scheduled 1976 primary and general elections, a
three-judge District Court enjoined further enforcement of the 1968
amendment until appellees effected compliance with § 5, but refused
to set aside the 1976 elections, noting "an apparent lack of any
discriminatory purpose or effect surrounding the use of the law in
the 1976 elections."
Held: The District Court erred in denying affirmative
relief as to the 1976 election, and should enter an order allowing
appellees 30 days within which to apply for federal approval of the
1968 voting change under § 5.
Affirmed in part and reversed in part.
PER CURIAM.
This appeal presents a challenge to the scope of the remedy
allowed by a three-judge District Court for the Middle District of
Georgia for failure of appellees to comply with the approval
provisions of § 5 of the Voting Rights Act of 1965, 79 Stat. 439,
as amended, 42 U.S.C. § 1973c (1970 ed., Supp. V).
In 1968, the State of Georgia enacted a statute intended to
stagger the terms of the three members of the Peach County Board of
Commissioners of Roads and Revenues. The then-existing statute,
adopted in 1964, provided that all three posts were to be filled at
four-year intervals. By operation of the
Page 438 U. S. 191
1968 amendment, the single at-large member was to be elected to
a two-year term in 1968 and to a four-year term at subsequent
general elections. Appellees concede, and the three-judge court
found, that the 1968 statute constituted a change in voting
procedures subject to the provisions of § 5, and that the change
had been implemented without first having been submitted for
approval either to the United States District Court for the
District of Columbia or to the Attorney General as required by §
5.
Four days prior to the August 10, 1976, primary election for the
two seats on the Board not including the at-large post, appellants
filed this action to enforce the requirements of § 5. Appellants'
requests for declaratory and injunctive relief were not acted upon
until after the scheduled 1976 primary and general elections.
On February 28, 1977, the three-judge court, without a hearing,
enjoined further enforcement of the 1968 statute until such time as
appellees effected compliance with § 5. However, the District Court
refused appellants' request to set aside the 1976 elections,
noting
"the rather technical changes made in the county's election law
by the 1968 amendment and, more important, the apparent lack of any
discriminatory purpose or effect surrounding the use of the law in
the 1976 elections."
In expressly limiting its order to prospective relief, the
District Court also relied on our decision in
Allen v. State
Board of Elections, 393 U. S. 544
(1969).
On April 26, 1977, the three-judge court denied appellants'
motion for reconsideration.
In this Court, appellants take the position that the relief
awarded in this case is wholly inadequate in failing to remedy the
existing § 5 violation. Appellants assert that, by refusing either
to set aside the 1976 election or to order that all three Board
members be elected in 1978, the District Court, at least until the
1980 election, leaves undisturbed the effects of the § 5 violation,
thereby acknowledging that, at least for a time, local officials
may successfully disregard § 5 requirements.
Page 438 U. S. 192
Appellees urge us to affirm the District Court judgment on
grounds that the 1976 election involved the two Board posts which
were not mentioned in the 1968 statute. Accordingly, appellees
argue, election to these posts is not subject to § 5. However, even
assuming that the District Court had the power to effect one of the
alternative remedies suggested by appellants, appellees believe
that the court below was correct in refusing to do so.
At our request, the United States, as
amicus curiae,
has filed a brief in this case. The Government takes the view,
espoused by appellants, that the 1976 election was affected by the
voting change prescribed in the 1968 statute, and that the District
Court's failure to require prompt compliance with § 5 permits the
violation to continue. It is the submission of the United States
that the question whether the staggering of Board terms provided
for by state statute in this case necessarily has a racially
discriminatory effect should properly be promptly submitted to
either the District Court for the District of Columbia or to the
Attorney General in conformity with the approval procedures set
forth in § 5.
In
Perkins v. Matthews, 400 U.
S. 379 (1971), decided after
Allen, supra, we
had occasion to address the remedy issue which now confronts us. We
indicated in that case that,
"[i]n certain circumstances . . . , it might be appropriate to
enter an order affording local officials an opportunity to seek
federal approval and ordering a new election only if local
officials fail to do so or if the required federal approval is not
forthcoming."
400 U.S. at
400 U. S.
396-397. The circumstances present here make such a
course appropriate.
In this case, appellees' undisputed obligation to submit the
1968 voting law change to a forum designated by Congress has not
been discharged. We conclude that the requirement of federal
scrutiny imposed by § 5 should be satisfied by appellees without
further delay. Accordingly, we adopt the suggestion of the United
States that the District Court should enter an
Page 438 U. S. 193
order allowing appellees 30 days within which to apply for
approval of the 1968 voting change under § 5. If approval is
obtained, the matter will be at an end. If approval is denied,
appellants are free to renew to the District Court their request
for simultaneous election of all members of the Board at the 1978
general election.
The judgment of the District Court is affirmed insofar as it
holds that appellees have violated the approval provisions of § 5
of the Voting Rights Act; the judgment is reversed insofar as it
denies affirmative relief, and the case is remanded to the District
Court with instructions to issue an order allowing appellees 30
days within which to apply for approval of the 1968 voting change
under § 5, and for further proceedings consistent with this
opinion.
It is so ordered.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
concurring.
I join the Court's opinion. The Court is surely correct that the
District Court committed reversible error by not, at the very
least, ordering the Peach County officials to seek preclearance of
the voting change enforced in the 1976 election and affording
appellants the opportunity, if prior approval is not granted, to
seek an order that would cut short the terms of the two
Commissioners elected in 1976 and require a new election under the
pre-1968 law. The District Court manifestly erred in refusing to
order such relief on the basis of its conclusion that the change
was "rather technical," with no "apparent discriminatory purpose or
effect." Nothing could be clearer than that a district court --
other, of course, than the District Court for the District of
Columbia -- has no jurisdiction to assess the purpose or effect of
any voting change.
See, e.g., United States v. Board of
Supervisors, 429 U. S. 642
(1977);
Perkins v. Matthews, 400 U.
S. 379,
400 U. S. 385
(1971).
Although the Court does not reach this issue, I think it
clear
Page 438 U. S. 194
that, if the Peach County officials do not hereafter obtain
federal preclearance for the 1968 change, the District Court must
order a new election for all three posts at the earliest feasible
time -- that here being the regularly scheduled 1978 election. For
if a designated federal entity cannot hereafter approve the 1968
voting change as racially neutral, it follows necessarily that
there is a substantial probability that the 1976 election itself
perpetrated racial discrimination in voting. To permit the results
of the 1976 election to stand in the face of such a determination
would be to do precisely what § 5 was designed to forbid: allow the
burdens of litigation and delay to operate in favor of the
perpetrators and against the victims of possibly racially
discriminatory practices.
See South Carolina v.
Katzenbach, 383 U. S. 301,
383 U. S. 335
(1966).
However, while I, therefore, agree that the District Court
committed reversible error, I am also of the view that, in the
circumstances of this case, a strong argument can be made that,
whether or not preclearance can be obtained, the only sufficient
remedy is to set aside the 1976 election and order a new election
under the pre-1968 law. Here, the Peach County officials could not
have reasonably believed at the time of the 1976 election that the
1968 voting change could continue to be validly enforced without
obtaining prior federal approval; thus, the situation is quite
different from that present in cases like
Perkins v. Matthews,
supra, where the scope of the § 5 duty had been unsettled at
the time of the election that was under attack.
If, in cases like the present one, the remedy of ordering a new
election is not to be required in all cases, the political units
covered by § 5 may have a positive incentive flagrantly to
disregard their clear obligations and not to seek preclearance of
proposed voting changes. For covered jurisdictions will then know
that a § 5 violation, if a suit is brought, can only result in
their being denied the right to continue to enforce those voting
changes that could not have received federal approval in the
Page 438 U. S. 195
first place. As to all other voting changes, the sole effect of
a suit for noncompliance with the approval provisions will be the
limited sanction of requiring the political unit to obtain the
federal approval which it should have received before any change
was instituted.
The legislative background of § 5 strongly suggests to me that
Congress expressly intended to preclude such a state of affairs.
Section 5, of course, was intended to prevent those States which
had a history of racial discrimination in voting from adhering to
their long-established practices of continually contriving new laws
to deprive blacks of any newly won voting rights. Congress sought
to place the burden of inertia and litigation delay on the
perpetrators of the discrimination by requiring affected States
voluntarily to submit any new law affecting voting for federal
approval before it became effective. The remedial theory the Court
embraces today may retard, not further, the objective of having
polities voluntarily comply with § 5, for a possible consequence
may well be that a very large share of the burden of implementing
federal policy will be placed on public and private enforcement. We
ought to have the benefit of full briefing and oral argument to
help indicate whether this will be the case.
I do not regard
Perkins v. Matthews, supra, as
necessarily supporting the Court's decision. While it is true that
the Court there stated that there might be circumstances in which
it would be appropriate to order a new election only if federal
approval for the voting change were not procured within a specified
time period, 400 U.S. at
400 U. S. 396,
the context of this statement clearly suggests that it is intended
to apply only to cases in which it had not been reasonably clear at
the time of the election that the change was covered by § 5.
Ibid. *
Page 438 U. S. 196
However, since there is no disposition on the part of my
colleagues to note probable jurisdiction and set the case down for
oral argument, I join the Court's opinion.
* I recognize that the case involves a voting change first
implemented in 1968. This fact does not, however, necessarily
support the Court's decision. Since the duty to comply with § 5 is
a continuing one, and applied to Peach County's enforcement of the
1968 change in the 1976 election, a strong argument can be made
that the only relevant consideration should be that the § 5 duty
was clear in 1976.
MR. JUSTICE POWELL, concurring in the judgment.
Although I believe that the wiser course would be simply to
affirm the judgment below, I go along reluctantly with the Court's
resolution of this case rather than bring it here for argument. I
am willing to do this only because I consider it most unlikely that
the Attorney General could find any reasoned basis for denying
approval of the change at issue in this case. Thus, it is
improbable that the court below ever will have to pass on the
request to cut short the terms of the two Commissioners elected in
1976 which the Court allows appellants to "renew" if the change is
not approved.
Ante at
438 U. S. 193.
I write to emphasize my view that the three-judge court cannot be
faulted for its common-sense handling of this case. I do not
understand the Court to disagree with this view.
I
The facts and procedural posture of this case deserve a fuller
treatment than the Court gives them. Under a state law enacted in
1964, the Board of Commissioners of Roads and Revenues for Peach
County, Ga., is composed of three members, assigned to numbered
posts. 1964 Ga.Laws No. 800, § 1, p. 2627. Posts 1 and 2 are filled
by residents of designated districts, and Post 3 is elected at
large. Until 1968, all three posts were elected simultaneously for
four-year terms. In 1968, the Georgia Legislature enacted a statute
providing for a partial staggering of the Commissioners' terms.
1968 Ga.Laws No. 800, § 2A, p. 2473. Under the statute, Post 3, the
at-large seat, was to be elected to a two-year term in 1968, and
thereafter to four-year terms. No change was made in
Page 438 U. S. 197
the terms of the other two Commissioners. The result is that the
election for Post 3 no longer is held at the same time as the
election for the other two posts. [
Footnote 1]
Elections were held under the amendment in 1968, 1970, 1972, and
1974 without challenge. It was only on August 6, 1976 -- four days
before the 1976 primary election -- that appellants filed this
lawsuit seeking to enjoin that election and the general election on
the ground that the amendment had not received the imprimatur of
the Attorney General or the District Court for the District of
Columbia as required by § 5 of the Voting Rights Act of 1965. A
single judge of the District Court, acting promptly, ruled on
appellants' motion for a preliminary injunction before the primary
election was held. That judge, "seriously question[ing]" whether
the change even was covered by § 5, and apparently in view of the
tardiness of the suit -- which to this day has not been explained
-- sensibly refused to enjoin the election. App. to Jurisdictional
Statement 7a.
After the 1976 primary and general elections for Posts 1 and 2
had been held, a three-judge District Court was convened. That
court concluded that the 1968 amendment was subject to the
preclearance requirements of § 5 after all, and it enjoined
enforcement of the 1968 amendment until those requirements had been
met.
"Given the rather technical changes made in the county's
election law by the 1968 amendment and, more important, the
apparent lack of any discriminatory purpose or effect surrounding
the use of the law in the 1976 elections,"
however, the court denied appellants' request to set aside those
elections.
Id. at 2a-3a, citing
Allen v.
State
Page 438 U. S. 198
Board of Elections, 393 U. S. 544,
393 U. S.
571-572 (1969). [
Footnote 2] The three-judge court thereupon
"dissolve[d] itself and remand[ed] the case to the originating
judge for such other and further proceedings consistent with this
opinion as may be required."
App. to Jurisdictional Statement 4a.
Appellants then filed a motion for reconsideration and
modification of the three-judge court's order. In this motion,
appellants -- for the first time -- asked the three-judge court to
order that all three posts stand for election in 1978 if the change
was not approved by then, thus cutting short the terms of the two
Commissioners elected in 1976.
See Jurisdictional
Statement 7 n. 1, 15-16; Brief for United States as
Amicus
Curiae 4. The three-judge court refused to consider this
belated request, stating: "The problem of relief is a question for
a single-judge court." App. to Jurisdictional Statement 5a.
Appellants, however, did not accept this clear invitation to press
their request before a single-judge court.
Instead, they brought the instant appeal, urging the Court
either to set aside the 1976 elections, or to cut short the terms
of the two Commissioners elected in 1976 by declaring all three
posts open in 1978. The United States as
amicus curiae
does not support appellants' request that the 1976 election be set
aside. Neither does it support appellants' request that the Court
declare all three posts open in 1978. Instead, it seeks relief that
appellants never have requested, either in the court below or in
this Court. It asks the Court to enter an order directing the
District Court to give appellees 30 days within which to seek § 5
preclearance. If preclearance is not sought, or if the change is
not approved, the United States then argues that the District Court
should be directed to allow appellants "to renew their request for
election of all three members at
Page 438 U. S. 199
the same time." Brief for United States as
Amicus
Curiae 8. The United States, like the Court today,
see n 7,
infra carefully takes no position on whether the District
Court should grant such further relief if this request is
"renewed."
In my view, the Court would be fully justified in holding that
the United States, which is not a party to this suit and did not
participate in the court below, is barred from injecting a new
issue into the case by requesting the Court to grant relief that
appellants themselves never have sought. It would be equally
justified in holding that appellants are barred from asking the
Court to declare all three posts open in 1978 after the three-judge
court declined to rule on this belated request and after appellants
ignored that court's express invitation to press their request
before a single-judge court. As a general rule, this Court does not
and should not allow parties or
amici to raise issues here
that were not raised in or ruled upon by the lower courts. Neither
should this Court encourage parties to bypass avenues of relief
that are open to them in the lower courts. The facts that the case
is a Voting Rights Act case, and that the
amicus is the
United States, provide no justification for departing from these
salutary principles.
II
Since the Court has chosen, without explanation, to depart from
these principles, I briefly address the question of relief that is
presented. Appellees do not challenge the three-judge court's
holding that § 5, as it has been expanded by judicial decision
since enactment of the 1968 amendment at issue here, requires
preclearance of that amendment. Nor do they challenge that court's
entry of an injunction against enforcing the amendment in future
elections until the change is approved. All they ask is that, if
the change is not approved, such a ruling should not be applied
retroactively to abrogate the result of elections already held. In
my view, there is much force to their plea.
This case is a classic example of how § 5, enacted to
further
Page 438 U. S. 200
the exercise of an important constitutional right, has been
judicially expanded to cover the most inconsequential change in any
aspect of election procedure. [
Footnote 3] Given this expansion, when courts are called
upon to decide whether to grant retroactive relief, they should
distinguish the minor or technical change from the substantive
change that is likely to result in discrimination. In refusing to
set aside the 1976 election, the three-judge court, much to its
credit, did just this. Significantly, the Court today does not
disturb that judgment, despite appellants' prayer that it do so.
[
Footnote 4]
It must be remembered that the Voting Rights Act imposes
restrictions unique in the history of our country on a limited
number of selected States. [
Footnote 5] The need to bring a measure of
Page 438 U. S. 201
common sense to its application is underscored further by the
fact that state and local officials now are supplicants for the
Attorney General's dispensation of approval under § 5
"at the rate of over 1,000 per year, and this rate is by no
means indicative of the number of submissions involved if all
covered States and political units fully complied with the
preclearance requirement, as interpreted by the Attorney
General."
United States v. Sheffield Board of Comm'rs,
435 U. S. 110,
435 U. S. 147
(1978) (STEVENS, J., dissenting) (footnote omitted). When a change
is submitted, the Attorney General may block its implementation
simply by stating, within 60 days, that he is unable to conclude
that it does not have discriminatory purpose or effect.
Georgia
v. United States, 411 U. S. 526,
411 U. S. 537
(1873). As a result, "the State may be left more or less at sea,"
id. at
411 U. S. 544
(WHITE, J., dissenting), unable to put into effect such routine and
trivial changes as the movement of a polling place or a precinct
boundary line. [
Footnote 6]
Thus, although I agree with the Court that the three-judge court
did not err in refusing to set aside the 1976 elections, I remain
dubious as to whether it would be any more proper for that court to
order all three posts to stand for election in 1978 if the change
is not approved. As the Court's order is framed, however, this
question still is open in the District Court if the change is not
approved. [
Footnote 7] Perhaps
that court will be able to
Page 438 U. S. 202
perceive some distinction that is not apparent to me between
setting aside the 1976 elections -- the denial of which relief this
Court upholds -- and achieving essentially the same result by
cutting short the terms of the two Commissioners selected in 1976
by ordering all three posts to stand for election in 1978. Because
I consider it unlikely that the three-judge court ever will have to
face this question, I acquiesce in the disposition of the Court
remanding
"with instructions to issue an order allowing appellees 30 days
within which to apply for approval of the 1968 voting change under
§ 5, and for further proceedings consistent with [the Court's]
opinion."
Ante at
438 U. S.
193.
[
Footnote 1]
It should be noted that the amendment was enacted before this
Court, by judicial interpretation, extended the coverage of the
Voting Rights Act of 1965 in,
e.g., Allen v. State Board of
Elections, 393 U. S. 544
(1969), and
Perkins v. Matthews, 400 U.
S. 379 (1971). Thus, when the amendment was enacted,
there was no reason to suspect that § 5 preclearance was
required.
[
Footnote 2]
In giving only prospective effect to its decision in
Allen, the Court took into account the fact that "the
discriminatory purpose or effect of [the challenged] statutes, if
any, has not been determined by any court." 393 U.S. at
393 U. S.
572.
[
Footnote 3]
In
Perkins v. Matthews, supra, the Court held that "§ 5
requires prior submission of any changes in the location of polling
places." 400 U.S. at
400 U. S. 388.
There are thousands of precincts and polling places in the
jurisdictions covered by the Act, and changes in precinct boundary
lines and polling places are necessary at frequent intervals to
accommodate inevitable population shifts. But, under the Court's
interpretation of the Act, a locality that moves a single precinct
line or polling place half a block is required first to obtain
permission from Washington.
[
Footnote 4]
The Court thus rejects MR. JUSTICE BRENNAN's suggestion,
ante at
438 U. S. 193,
that the District Court
"erred in refusing to order [retroactive] relief on the basis of
its conclusion that the change was
rather technical,' with no
`apparent discriminatory purpose or effect."
See also Allen v. State Board of Elections, 393 U.S. at
393 U. S. 572,
quoted in n. 2,
supra; Perkins v. Matthews, 400 U.S. at
400 U. S.
396.
[
Footnote 5]
As MR. JUSTICE STEVENS recently has written:
"[The] so-called 'preclearance' requirement is one of the most
extraordinary remedial provisions in an Act noted for its broad
remedies. Even the Department of Justice has described it as a
'substantial departure . . . from ordinary concepts of our federal
system;' its encroachment on state sovereignty is significant and
undeniable."
United States v. Sheffield Board of Comm'rs,
435 U. S. 110,
435 U. S. 141
(1978) (dissenting opinion) (footnote omitted). Mr. Justice Harlan
made much the same point by describing § 5 as "a revolutionary
innovation in American government" which applies only to "a handful
of States."
Allen v. State Board of Elections, supra at
393 U. S. 585,
393 U. S. 586
(concurring in part and dissenting in part).
[
Footnote 6]
One would like to assume that the Attorney General exercises
this unprecedented power to veto state and local legislation
personally, and with the most thoughtful deliberation. But, as
previously noted, applications for his dispensation flow to
Washington at a rate of over 1,000 per year -- almost 4 per
business day. Even if the Attorney General had no duties other than
those imposed upon him by § 5, one might doubt whether it would be
possible for him to pass judgment, with care and sensitivity, upon
each change in election laws or procedure submitted for his
approval.
[
Footnote 7]
The Court
"adopt[s] the suggestion of the United States that the District
Court should enter an order allowing appellees 30 days within which
to apply for approval of the 1968 voting change under § 5. . . . If
approval is denied, appellants are free to renew to the District
Court their request for simultaneous election of all members of the
Board at the 1978 general election."
Ante at
438 U. S.
192-193.
It then remands the case
"to the District Court with instructions to issue an order
allowing appellees 30 days within which to apply for approval of
the 1968 voting change under § 5, and for further proceedings
consistent with this opinion."
Ante at
438 U. S. 193.
But the Court does not direct the District Court to grant any
"renewed" request that appellants may make. All that it orders is
that the District Court allow appellees 30 days within which to
seek preclearance and allow appellants to "renew" their request for
simultaneous elections in 1978 if the change is not approved.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE STEVENS joins,
dissenting.
No party to this case has requested this Court to issue an order
requiring or allowing appellees to apply for approval of the 1968
voting change under § 5 of the Voting Rights Act of 1965. The
United States, when requested by this Court to express its views,
made such a request. But the United States is only an
amicus
curiae in this case, and it has no standing to request relief
which has never been requested by the parties. The opinion of the
Court goes not merely beyond the scope of any relief sought from
the District Court, but also decides questions beyond those
presented in the jurisdictional statement
Page 438 U. S. 203
of appellants. In so doing, of course, the opinion is contrary
to our Rule 15, which provides: "Only the questions set forth in
the jurisdictional statement or fairly comprised therein will be
considered by the court."
I would affirm the judgment of the District Court in its
entirety.