Section 5 of the Voting Rights Act of 1965 requires covered
jurisdictions to obtain either judicial preclearance from the
United States District Court for the District of Columbia or
administrative preclearance from the United States Attorney General
before implementing new voting practices, in order to prevent
changes that have a discriminatory purpose or effect. Appellants,
black registered voters and a voting rights organization in
Louisiana, filed suit in the District Court, challenging the
validity of Louisiana's electoral scheme for certain judges under,
inter alia, § 5. In response to their 1987 amended
complaint alleging that a number of statutory and constitutional
changes, many of which were adopted in the late 1960's and 1970's,
had not been precleared under § 5, Louisiana submitted all of the
unprecleared voting changes for administrative preclearance. In
June, 1990, after the Attorney General had objected to preclearance
for some changes, including the creation of several judgeships,
Louisiana asked him to reconsider and proceeded with plans to hold
fall elections for all of the seats. The District Court denied
appellants' motion to enjoin the elections for the unprecleared
seats, but enjoined the winners from taking office pending its
further orders. In October, the court, noting that some of the
judgeships to which the Attorney General now objected were in
districts where the State had obtained administrative preclearance
for later-created judgeships, ruled that the Attorney General had
precleared the earlier judgeships when he precleared the later, or
related, voting changes. The court also refused to enjoin elections
for those judgeships that it found were subject to valid objections
by the Attorney General and violated § 5, holding that the winners
could take office, pending judicial preclearance.
Held:
1. The District Court erred by not enjoining elections for
judgeships to which the Attorney General interposed valid
objections. Section 5 requires preclearance. Without it, a voting
change will not be effective as law,
Connor v. Waller,
421 U. S. 656, and
is unenforceable,
Hathorn v. Lovorn, 457 U.
S. 255,
457 U. S. 269.
Moreover, § 5 plaintiffs are entitled to an injunction prohibiting
a State from implementing changes that have not been precleared,
Allen v. State Bd. of Elections, 393 U.
S. 544,
393 U. S. 572.
The court's reasons for refusing to enjoin the elections lack
merit. Appellants displayed no lack of diligence in challenging the
elections, and every participant in the process knew for over three
years that the challenged seats were unprecleared. Nor was § 5's
applicability to judges uncertain until 1990, since this Court
issued a summary affirmance of a decision holding that § 5 applied
to judges in 1986,
Haith v. Martin, 618 F.
Supp. 410,
aff'd mem., 477 U.S. 901. The court's
concern about the potential for voter confusion and low voter
turnout in a special election for the unprecleared seats did not
justify its position, since voters may be more confused and
inclined to avoid the polls when an election is held in conceded
violation of federal law. Moreover, the court's stated purpose to
avoid possible challenges to civil and criminal judgments counsels
in favor of enjoining the illegal elections, thus averting a
federal challenge to state judgments. This Court's decisions
dealing with the
ex post question whether to set aside
illegal elections,
see, e.g., Perkins v. Matthews,
400 U. S. 379, are
inapposite to the instant case, which addresses the
ex
ante question whether to allow illegal elections to be held at
all. And it is not necessary to decide here whether there are
instances in which a court may deny a motion for an injunction and
allow an election to go forward. Pp.
500 U. S.
652-655.
2. The State's failure to preclear certain earlier voting
changes under § 5 was not cured by the Attorney General's
preclearance of later, or related, voting changes.
McCain v.
Lybrand, 465 U. S. 236,
made clear that the submission of legislation for administrative
preclearance under § 5 defines the preclearance request's scope.
Normally, a submission pertains only to identified changes in that
legislation, and any ambiguity in the request's scope must be
resolved against the submitting authority. A submission's
description of the change from one number of judges to another in a
particular judicial district does not, by itself, constitute a
submission to the Attorney General of the prior voting changes
incorporated in the newly amended statute. The requirement that a
State identify each change is necessary for the Attorney General to
perform his preclearance duties, since otherwise he would have to
add to his redoubtable obligations the additional duty to research
each submission to ensure that all earlier unsubmitted changes had
been brought. Here, Louisiana's submissions of contemporary
legislation to the Attorney General failed as a matter of law to
put him on notice that the prior unsubmitted changes were included.
Pp.
500 U. S.
655-659.
3. Appellants' request that the elections held for the seats in
question be set aside and the judges be removed is not a proper
matter for this Court to consider in the first instance. Pp.
500 U. S.
659-660.
751 F.
Supp. 586 (M.D.La.1990), reversed and remanded.
Page 500 U. S. 648
KENNEDY, J., delivered the opinion for a unanimous Court.
JUSTICE KENNEDY delivered the opinion of the Court.
This case raises two issues under § 5 of the Voting Rights Act
of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c.
I
The Voting Rights Act of 1965, 42 U.S.C. § 1973
et
seq., contains two major provisions governing discrimination
in election practices. Section 2 addresses existing election
procedures. It prohibits procedures that "resul[t] in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color. . . ." § 1973(a). Section 5
governs changes in voting procedures. In order to prevent changes
that have a discriminatory purpose or effect, § 5 requires covered
jurisdictions, such as Louisiana, to obtain preclearance by one of
two methods before implementing new voting practices. § 1973c.
Through judicial preclearance, a covered jurisdiction may obtain
from the United States District Court for the District of Columbia
a declaratory judgment that the voting change "does not have the
purpose and
Page 500 U. S. 649
will not have the effect of denying or abridging the right to
vote on account of race or color."
Ibid. Through
administrative preclearance, the jurisdiction may submit the change
to the Attorney General of the United States. If the Attorney
General "has not interposed an objection within sixty days after
such submission," the State may enforce the change.
Ibid.
Appellants are black registered voters and a voting rights
organization in Louisiana. They filed this suit in 1986 under §§ 2
and 5 of the Voting Rights Act, challenging the validity of
Louisiana's multimember, at-large electoral scheme for certain
appellate, district, and family court judges. Under § 2, appellants
alleged that Louisiana's electoral scheme diluted minority voting
strength. In an amended complaint filed in July, 1987, appellants
also alleged that Louisiana violated § 5 by failing to submit for
preclearance a number of statutory and constitutional voting
changes, many of them adopted in the late 1960's and 1970's. The §
2 portion of the case was assigned to a single District Court
Judge; the § 5 allegations were heard by a three-judge District
Court, 42 U.S.C. § 1973c; 28 U.S.C. § 2284.
In response to the appellants' § 5 allegations, Louisiana
submitted all of the unprecleared voting changes for administrative
preclearance. In September, 1988, and May, 1989, the Attorney
General granted preclearance for some of the changes, but objected
to others. On June 18 and 20, 1990, Louisiana asked the Attorney
General to reconsider his denial of preclearance for these seats,
and proceeded with plans to hold elections for them in the fall of
1990. On July 23, 1990, petitioners filed a motion asking the
three-judge District Court to enjoin the elections for the
unprecleared seats.
On August 15, 1990, the District Court presiding over the § 2
case enjoined the State from holding elections in 11 judicial
districts which it determined violated § 2. Some of these judicial
districts were also at issue in the § 5 portion of the case. On
September 28, 1990, the three-judge District Court presiding
Page 500 U. S. 650
over the § 5 case denied appellants' motion to enjoin the State
from holding elections for the seats not blocked by the § 2
injunction. The three-judge panel, however, did enjoin the winning
candidates from taking office pending its further orders.
Also on September 28, 1990, the United States Court of Appeals
for the Fifth Circuit, sitting en banc, held that judges are not
representatives for purposes of § 2 of the Voting Rights Act.
League of the United Latin American Citizens Council No. 444 v.
Clements, 914 F.2d 620 (1990),
cert. granted,
498 U. S. 1061
(1991). Based on this precedent, the District Court Judge presiding
over the § 2 aspect of the case dissolved the § 2 injunction on
October 2 and ordered that elections for the 11 districts be held
on November 6 and December 8, 1990. On the same day, the
three-judge District Court presiding over the § 5 case refused to
enjoin the elections for the unprecleared seats, but it again
enjoined the winning candidates from taking office pending its
further orders. As of October 2, 1990, then, Louisiana had
scheduled elections for all of the judgeships to which the Attorney
General had interposed objections.
In an October 22 order and an October 31 opinion, the
three-judge District Court made its final pronouncement on the
status of the unprecleared judgeships. The court divided the
unprecleared electoral changes into two categories. Category one
involved at-large judgeships in districts where, for the most part,
the State had obtained administrative preclearance for
later-created judgeships. The three-judge District Court held that,
despite his current objections, the Attorney General had precleared
the earlier judgeships when he precleared the later, or related,
voting changes. For example, the First Judicial District Court in
Caddo Parish has a number of judgeships, called Divisions, subject
to § 5. Louisiana submitted and obtained approval for Divisions E
(created
Page 500 U. S. 651
in 1966, precleared in 1986), G (created and precleared in
1976), H (created and precleared in 1978), and I (created and
precleared in 1982). Division F was not submitted for approval when
it was created in 1973; rather, it was submitted and objected to in
1988. The three-judge District Court held, however, that, when the
Attorney General precleared Divisions G, H, and I, he also
precleared Division F. The court reasoned that, because the
legislation creating Divisions G, H, and I added to the number of
prior judgeships in Caddo Parish, including Division F, approval of
the legislation constituted approval of Division F.
751 F.
Supp. 586, 592, and n. 35 (M.D.La.1990)
Category two under the court's ruling involved judgeships
subject to valid objections by the Attorney General. Yet despite
its holding that these unprecleared judgeships violated § 5, the
court refused to enjoin the elections. It found
"the potential harm to all of the citizens of Louisiana [from
such an injunction] outweigh[ed] the potential harm, if any, of
allowing the elections to continue."
Id. at 595. It allowed the election to proceed under
the following conditions. The winning candidates could take office
if, within 90 days, Louisiana filed a judicial preclearance action
in the United States District Court for the District of Columbia or
persuaded the Attorney General to withdraw his objections. The
winners of the election could remain in office pending judicial
preclearance, and could retain office for the remainder of their
terms if the State obtained judicial preclearance. If the State
failed to obtain judicial preclearance, the installed candidates
could remain in office only 150 days after final judgment by the
District Court.
On October 29, 1990, appellants filed an emergency application
in this Court to enjoin the November 6 and December 8 elections
pending appeal. On November 2, we granted the application in part
and enjoined the elections for the judgeships that the District
Court conceded were uncleared.
Clark v. Roemer, 498 U.S.
953,
modified, 498 U.S. 954 (1990). We did not overturn
the District Court's refusal to
Page 500 U. S. 652
enjoin elections for the judgeships that it considered
precleared by implication.
Ibid.
On January 18, 1991, we noted probable jurisdiction. 498 U.S.
1060. The next day, the State sought judicial preclearance for the
electoral changes that the three-judge District Court found to be
uncleared. That action is still pending in the United States
District Court for the District of Columbia.
II
The case presents two discrete issues under § 5 of the Voting
Rights Act. First, we must decide whether the District Court erred
by not enjoining elections held for judgeships to which the
Attorney General interposed valid § 5 objections. Second, we must
determine whether the State's failure to preclear certain earlier
voting changes under § 5 was cured by the Attorney General's
preclearance of later, or related, voting changes.
A
The District Court held that the Attorney General had interposed
valid objections to some judgeships. Nonetheless, it permitted
elections for those seats to go forward and allowed the winners to
take office pending resolution of Louisiana's judicial preclearance
request. This ruling was error.
Section 5 requires States to obtain either judicial or
administrative preclearance before implementing a voting change. A
voting change in a covered jurisdiction "will not be effective as
la[w] until and unless cleared" pursuant to one of these two
methods.
Connor v. Waller, 421 U.
S. 656 (1975) (per curiam).
See also United States
v. Board of Supervisors of Warren County, 429 U.
S. 642,
429 U. S. 645
(1977) ("No new voting practice or procedure may be enforced unless
the State or political subdivision has succeeded in its declaratory
judgment action or the Attorney General has declined to object").
Failure to obtain either judicial or administrative preclearance
"renders the change unenforceable."
Hathorn v. Lovorn,
457 U. S. 255,
457 U. S. 269
(1982). If voting changes subject
Page 500 U. S. 653
to § 5 have not been precleared, § 5 plaintiffs are entitled to
an injunction prohibiting the State from implementing the changes.
Allen v. State Bd. of Elections, 393 U.
S. 544,
393 U. S. 572
(1969).
The District Court ignored these principles altogether. It
presented a number of reasons for not enjoining the election, none
of which we find persuasive. The court cited the short time between
election day and the most recent request for injunction, the fact
that qualifying and absentee voting had begun, and the time and
expense of the candidates. But the parties, the District Court, and
the candidates had been on notice of the alleged § 5 violations
since appellants filed their July, 1987, amended complaint. When
Louisiana asked the Attorney General for reconsideration of its
original preclearance decision in June, 1990, it became apparent
that the State intended to hold elections for the unprecleared
seats in the fall of the same year. Less than a month later, and
more than two months before the scheduled October 6, 1990,
election, appellants filed a motion to enjoin elections for the
unprecleared seats. Appellants displayed no lack of diligence in
challenging elections for the unprecleared seats, and every
participant in the process knew for over three years that the
challenged seats were unprecleared, in violation of § 5.
The other reasons for the District Court's decision lack merit
as well. The District Court maintained that the applicability of §
5 to judges was uncertain until our summary affirmance in
Brooks v. Georgia State Board of Elections, 775 F.
Supp. 1470,
aff'd, 498 U.S. 916 (1990). But in
Haith v. Martin, 618 F.
Supp. 410 (EDNC 1985),
aff'd mem., 477 U.S. 901
(1986), we issued a summary affirmance of a decision holding that §
5 applied to judges. Nor did the District Court's vague concerns
about voter confusion and low voter turnout in a special election
for the unprecleared seats justify its refusal to enjoin the
illegal elections. Voters may be more confused and inclined to
avoid the polls when an election is held
Page 500 U. S. 654
in conceded violation of federal law. Finally, the District
Court's stated purpose to avoid possible challenges to criminal and
civil judgments does not justify allowing the invalid elections to
take place. To the contrary, this concern counsels in favor of
enjoining the illegal elections, thus averting a federal challenge
to state judgments.
The three-judge District Court, 751 F. Supp. at 595, maintained
that its decision to give provisional effect to elections conducted
in violation of § 5 "closely parallel[ed]" a number of our
decisions, including
Perkins v. Matthews, 400 U.
S. 379 (1971),
NAACP v. Hampton County Election
Commission, 470 U. S. 166
(1985),
Berry v. Doles, 438 U. S. 190
(1978), and
Georgia v. United States, 411 U.
S. 526 (1973). The cases are inapposite.
Perkins stated 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. But in
Perkins, as in
Hampton
County, Berry, and
Georgia, the elections in question
had been held already; the only issue was whether to remove the
elected individuals pending preclearance. Here the District Court
did not face the
ex post question whether to set aside
illegal elections; rather, it faced the
ex ante question
whether to allow illegal elections to be held at all. On these
premises, § 5's prohibition against implementation of unprecleared
changes required the District Court to enjoin the election. This is
especially true because, unlike the circumstance in
Perkins,
Hampton County, Berry, or
Georgia, the Attorney
General interposed objections before the election.
We need not decide today whether there are cases in which a
District Court may deny a § 5 plaintiff's motion for injunction and
allow an election for an unprecleared seat to go forward. An
extreme circumstance might be present if a seat's unprecleared
status is not drawn to the attention of the State until the eve of
the election and there are equitable principles
Page 500 U. S. 655
that justify allowing the election to proceed. No such exigency
exists here. The State of Louisiana failed to preclear these
judgeships as required by § 5. It received official notice of the
defect in July, 1987, and yet, three years later, it had still
failed to file for judicial preclearance, the "basic mechanism" for
preclearance,
United States v. Sheffield Board of Comm'rs,
435 U. S. 110,
435 U. S. 136
(1978). It scheduled elections for the unprecleared seats in the
fall of 1990 even after the Attorney General had interposed
objections under § 5. In short, by the fall 1990 election,
Louisiana had with consistency ignored the mandate of § 5. The
District Court should have enjoined the elections.
B
The District Court held also that the Attorney General's
preclearance of voting change legislation in some districts
operated to preclear earlier voting changes in those districts,
even though the Attorney General now objects to the earlier
changes. This ruling conflicts with our decision in
McCain v.
Lybrand, 465 U. S. 236
(1984), and subverts the efficacy of administrative preclearance
under § 5.
McCain involved a 1966 South Carolina statute
establishing a three-member county council elected at large by all
county voters and requiring candidates to reside in and run from
one of three residency districts. The State failed to preclear the
1966 statute. In 1971, the State amended the statute to increase
the number of residency districts and county council members from
three to five, and submitted the new Act for preclearance. Based on
a request by the Attorney General for additional information, South
Carolina also submitted a copy of the 1966 Act. The Attorney
General declined to interpose any objection "to the change in
question."
Id. at
465 U. S. 241. In a later § 5 challenge to the 1966
changes, a District Court held that the Attorney General's request
for additional information indicated that he considered and
approved all aspects of the electoral scheme subject
Page 500 U. S. 656
to the 1971 amendments, including the changes effected by the
1966 Act. In the alternative, the District Court held that, since
the 1971 Amendment retained or incorporated changes effected by the
1966 Act, the lack of objection to the 1971 submission constituted
approval of the 1966 Act.
We reversed both holdings. We made clear that the submission of
legislation for administrative preclearance under § 5 defines the
scope of the preclearance request. Under normal circumstances, a
submission pertains only to identified changes in that legislation.
Id. at
465 U. S. 251,
465 U. S. 257.
We established also that any ambiguity in the scope of a
preclearance request must be resolved against the submitting
authority.
Ibid. Applying these standards, we held that
the three-judge District Court's finding that the Attorney General
had considered and approved the changes made by the 1966 Act in the
course of approving the 1971 amendment was clearly erroneous,
because the information submitted was limited to election changes
effected by the 1971 amendments.
We held further that the District Court erred as a matter of law
in determining that approval of the 1971 submission was also an
approval of the changes in the 1966 statute. We explained that "the
preclearance procedures mandated by § 5 . . . focus entirely on
changes in election practices,"
id. at
465 U. S. 251,
and that "submission of a particular change does not encompass all
prior changes -- precleared or not -- that have been made since the
Act's effective date . . . ,"
id. at
465 U. S. 255,
n. 26.
"When a jurisdiction adopts legislation that makes clearly
defined changes in its election practices, sending that legislation
to the Attorney General merely with a general request for
preclearance pursuant to Section 5 constitutes a submission of the
changes made by the enactment, and cannot be deemed a submission of
changes made by previous legislation which themselves were
independently subject to Section 5 preclearance."
Id. at
465 U. S.
256.
Page 500 U. S. 657
The three-judge District Court in the instant case reasoned as
follows in ruling that submission and approval of the later
electoral changes constituted submission and approval of the
earlier changes:
"[W]e find that there was express approval by the Attorney
General for those judicial positions set forth in Part I of our
October 22, 1990, order. The language of the various acts submitted
to the Attorney General, as well as the letters submitted by the
State of Louisiana seeking preclearance, support this conclusion.
Thus, the change submitted to the Attorney General is not only the
Amendment, but the entire act as passed by the legislature. When
the Attorney General approves the new act, he not only approves the
amended portion, but necessarily approves the older, reenacted
part, which forms part of the new act. Thus, when an act provides
for a certain number of judicial positions, approval of that act
must include all of the judicial positions necessary to reach that
number."
751 F. Supp. at 592-593 (footnotes omitted). And in a footnote,
the court explained that the submission of the later Acts covered
the earlier Acts as well, because,
"in most cases, the letter of submission clearly and expressly
states that the number of judges in a particular district is being
increased from one number to another."
Id. at 592-593, n. 38. On this basis alone, the
District Court distinguished
McCain. 751 F. Supp. at
592-593, n. 38.
The District Court's explanation for its holding replicates the
precise factual and legal errors we identified in
McCain.
Its ruling that preclearance "not only approves the amended portion
of the new act, but necessarily approves the older, reenacted part,
which forms part of the new act" is inconsistent with
McCain. McCain establishes a presumption that the
Attorney General will review only the current changes in election
practices effected by the submitted legislation, not prior
unprecleared changes reenacted in the amended legislation.
Page 500 U. S. 658
A submission's description of the change from one number of
judges to another in a particular judicial district does not, by
itself, constitute a submission to the Attorney General of the
prior voting changes incorporated in the newly amended statute.
"A request for preclearance of certain identified changes in
election practices which fails to identify other practices as new
ones thus cannot be considered an adequate submission of the latter
practices."
465 U.S. at
465 U. S.
256-257. Of course, a State may include earlier
unprecleared changes as a specific submission along with its
preclearance request for contemporary legislation. But it must
identify with specificity each change that it wishes the Attorney
General to consider.
The requirement that the State identify each change is necessary
if the Attorney General is to perform his preclearance duties under
§ 5. The Attorney General has substantial responsibilities under §
5. The Attorney General represents to us that he reviews an average
of 17,000 electoral changes each year, and that, within the 60-day
preclearance period, he must for each change analyze demographics,
voting patterns, and other local conditions to make the statutory
judgment concerning the presence of a discriminatory purpose or
effect. Brief for United States as
Amicus Curiae 22, n.
18. Congress recognized that the Attorney General could not, in
addition to these duties, also monitor and identify each voting
change in each jurisdiction subject to § 5.
"[B]ecause of the acknowledged and anticipated inability of the
Justice Department -- given limited resources -- to investigate
independently all changes with respect to voting enacted by States
and subdivisions covered by the Act,"
465 U.S. at
465 U. S. 247,
Congress required each jurisdiction subject to § 5, as a condition
to implementation of a voting change subject to the Act, to
identify, submit, and receive approval for all such changes. The
District Court's holding upsets this ordering of responsibilities
under § 5, for it would add to the Attorney General's already
redoubtable obligations the additional duty
Page 500 U. S. 659
to research each submission to ensure that all earlier
unsubmitted changes had been brought to light. Such a rule would
diminish covered jurisdictions' responsibilities for
self-monitoring under § 5, and would create incentives for them to
forgo the submission process altogether. We reaffirm
McCain in rejecting this vision of § 5.
In light of its legal errors, the District Court's finding that
the Attorney General "expressly approved" the prior uncleared
changes cannot stand. Neither the initial submission nor the
Attorney General's ruling upon it can be deemed to include the
earlier unprecleared seats. Louisiana's submissions of contemporary
legislation to the Attorney General failed as a matter of law to
put him on notice that the prior unsubmitted changes were included.
None of the submissions informed the Attorney General that prior
voting changes were uncleared and were being transmitted along with
the new changes. In most instances, Louisiana submitted only the
legislation containing the new voting change. The record contains
five submission letters, but these communications do not give
requisite notice. Two were mere cover letters that added nothing to
the submitted legislation. The other three letters note changes in
the number of judges in a District, but as we have explained, this
alone does not constitute a submission of the prior uncleared
changes. In light of these legal errors and the presumption that
"any ambiguity in the scope of the preclearance request" must be
construed against the submitting jurisdiction,
id. at
465 U. S. 257,
"we are left with the definite and firm conviction,"
id.
at
465 U. S. 258,
that the court erred in finding that the Attorney General gave
express approval to the earlier changes.
Appellants request that we set aside the elections held for
these seats and remove the judges from office. This is not a proper
matter for us to consider in the first instance.
"[A] local district court is in a better position than this
Court to fashion relief, because the district court 'is more
familiar with the nuances of the local situation' and has the
opportunity to
Page 500 U. S. 660
hear evidence."
Hathorn v. Lovorn, 457 U.S. at
457 U. S. 270,
quoting
Perkins v. Matthews, 400 U.S. at
400 U. S. 397.
In fashioning its decree granting relief, the district court should
adopt a remedy that in all the circumstances of the case implements
the mandate of § 5 in the most equitable and practicable manner and
with least offense to its provisions.
The judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.