McDaniel v. Sanchez Motion for Leave to File and Brief Amicus Curiae

    No. 80-180

In  T he

(Hmtrt xtt tty Itriteft States
October Term , 1980

W. C. M cDan iel , et al.,
Petitioners,

v.

Jose San ch ez , et al.

On Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit

MOTION FOR LEAVE TO FILE AND BRIEF AMICUS 
CURIAE  OF THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW IN SUPPORT OF RESPONDENTS

John B. Jones, Jr.
Norman Redlich 

Co-Chairmen

W illiam L. Robinson * 
Norman J. Chachkin 
Beatrice Rosenberg 

Lawyers’ Committee for 
Civil Rights Under Law 

738 15th Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amicus Curiae

* Counsel of Record

W i l s o n  - Ep e s  P r i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n . D . C .  2 0 0 0 1



In T he

Bupnm (tort at %  llntteb
October T erm , 1980

No. 80-180

W. C. M cDan iel , et al.,
Petitioners,

v.

Jose Sa n c h ez , et al.

On Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
seeks leave to file the annexed brief as amicus curiae. 
The respondents have consented to the filing of such 
brief, but the petitioners have not.

The Lawyers’ Committee was organized in 1963 at the 
request of the President of the United States to involve 
private attorneys throughout the country in the national 
effort to assure civil rights to all Americans. Protec­
tion of the voting rights of citizens has been an im­
portant aspect of the work of the Committee; it has pro­



2
vided legal representation to litigants in numerous voting
rights cases for the past fifteen years.*

This case presents issues as to the procedure to be 
followed by a district court after it finds constitutional 
defects in the election system of a governmental agency 
which is within the coverage of the Voting Rights Act 
of 1965, as amended in 1975. The case has importance 
beyond its immediate facts because the ruling of the 
Court will affect future litigation in this area. In our 
view, the issue presented is both simpler and more basic 
than the issue as to whether the system devised after the 
initial ruling of the district court is properly character­
ized as legislative or judicial action. It is our view that 
the court below was correct in ruling that the district 
court should not have approved the plan offered by the 
defendant without clearance under Section 5 of the Vot­
ing Rights Act, whether or not the plan is deemed legis­
lative or judicial. That, as we explicate in the annexed 
brief, was the understanding of Congress when it re­
enacted Section 5 of the Voting Rights Act and made 
it applicable to the region here involved in 1975.

We believe that we can present a perspective on the 
case which has not been presented by the petitioners and 
which may not be presented by respondents as to the 
procedure by which such intention of Congress can be 
implemented in accordance with the principles established 
by decisions of this Court.

The Lawyers’ Committee accordingly seeks leave to 
file this brief as amicus curiae urging affirmance of the 
judgment below.

* For example, the Lawyers’ Committee represented a class of 
black citizens of Mississippi in reapportionment litigation which 
was before this Court on several occasions: Connor v. Johnson, 402 
U.S. 690 (1971) ; Connor v. Williams, 404 U.S. 549 (1972); Con­
nor v. Waller, 421 U.S. 656 (1975); Connor v. Coleman, 425 U.S. 
675 (1976); Connor v. Finch, 431 U.S. 407 (1977); Connor V. 
Coleman, 440 U.S. 612 (1979); id,., 441 U.S. 792 (1979); United 
States v. Mississippi, 48 U.S.L.W. 3530 (February 19, 1980).



3

WHEREFORE, the Lawyers’ Committee for Civil 
Rights Under Law respectfully moves that its brief be 
filed in this case.

Respectfully submitted,

John B. Jones, Jr.
Norman Redlich 

Co-Chairmen

William L. Robinson * 
Norman J. Chachkin 
Beatrice Rosenberg 

Lawyers’ Committee for 
Civil Rights Under Law 

738 15th Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amicus Curiae

* Counsel of Record



I N D E X
Page

TABLE OF AUTHORITIES............................ - ................ i

INTEREST OF AMICUS C U R IA E ................... ........ .... 1

STATEMENT ................. .................................. ........ ......... ~ 2

SUMMARY OF ARGUMENT ____________________ __  3

ARGUMENT ........................................................ .......... ........ 5

I. On finding malapportionment, the district court
should have ordered the county to prepare a 
proper corrective system pursuant to law which 
would have included clearance under Section 5.. 5

II. Even if the court properly ordered the plan to be
submitted to it initially, it was an abuse of dis­
cretion to approve the plan without clearance 
under Section 5 .........................................................  10

CONCLUSION ........ .................... .............................-...... . 15

TABLE OF AUTHORITIES
Cases

Allen V. State Board of Elections, 393 U.S. 544
(1969) ..................... ......... .......................... ......... .......  7

Baker v. Carr, 369 U.S. 186 (1962).... .....................  5
Burns V. Richardson, 384 U.S. 73 (1966)------------- 6, 9
Chapman V. Meier, 420 U.S. 1 (1975)___________ _ 6
Connor V. Coleman, 440 U.S. 612 (1979).................  6, 9
Co?mor v. Finch, 431 U.S. 407 (1977) ............... . 6, 7
Connor v. Johnson, 402 U.S. 690 (1971) ................  11
Connor v. Waller, 421 U.S. 656 (1975) ..................  7,11
Drayer V. Krasner, 572 F.2d 348 (2d Cir.), cert.

denied, 436 U.S. 948 (1978) ________ ______ _ 7
Gaffney V. Cummings, 412 U.S. 735 (1973) ..........  6
Perkins V. Mathews, 400 U.S. 379 (1971) ..............  7
Reynolds V. Sims, 377 U.S. 533 (1964) __________6, 9, 14
Sanchez V. McDaniel, 615 F.2d 1023 (5th Cir.

1980)....... ....................................... - ............. .......... .. 3
Schlesinger V. Councilman, 420 U.S. 738 (1975).... 7



TABLE OF AUTHORITIES—Continued
Page

South Carolina V. Katzenbach, 383 U.S. 301

ii

(1966)  ........................................................... . 13
Wilson V. Weller, 214 S.W.2d 473 (Tex. Ct. Civ.

App. 1948)  ......................................... ........ ............ 8
Wise V. Lipscomb, 437 U.S. 535 (1978) .............. 3, 6, 8, 9

Statutes

42 U.S.C. § 1973c (1976) ......................................  2, 5

Legislative Materials

121 Cong. Rec. (1975) _____ ___ ________ 9,10,11,12
H.R. Rep. No. 94-196, 94th Cong., 1st Sess. (1975).. 8,12
S. Rep. No. 94-295, 94th Cong., 1st Sess. (1975), 

reprinted in [1975] U.S. Code Cong. & Adm.
News 774 _____________________ ______8,10,11,12,13



In  T he

(£ m x t a t %  States
October Term , 1980

No. 80-180

W. C. M cDaniel , et al.,
Petitioners,

v.

Jose San ch ez , et al.

On Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

The interest of the Lawyers’ Committee for Civil 
Rights Under Law in this matter is set out in the Mo­
tion for Leave to File this brief which is appended 
hereto.



2

STATEMENT

The essential facts are undisputed. In January, 1978, 
plaintiffs filed a class action challenging the method by 
which commissioners were elected to the Commissioners 
Court of Kleberg County, Texas. That court, consisting 
of a county judge and four commissioners, is the govern­
ing body of the county. The judge is elected county wide, 
but one commissioner is elected in each of the four pre­
cincts into which the county is divided. The commis­
sioners serve staggered terms of four years, with two 
commissioners elected every two years.

Plaintiffs alleged that the precincts of Kleberg County, 
as constituted, violated the principle of “ one man, one 
vote,” and that the boundaries were drawn in a way 
which unconstitutionally diluted the votes of Mexican 
Americans.

After a trial, the district court found that there had 
been no unconstitutional dilution of the voting strength 
of Mexican Americans, but that reapportionment was 
necessary to correct population disparities. In its order 
of October 22, 1979, the court directed the defendants 
to submit a proposed new plan by November 13, 1979 
and scheduled a hearing thereon for December 10, 1979.

At the hearing on December 10, the county presented 
to the court a plan which had been prepared by Dr. 
Robert T. Nash of the business school of Texas A & I 
University. The Commissioners had officially adopted Dr. 
Nash’s proposal as the plan they would submit to the 
court. The plaintiffs, offering expert testimony, objected 
to the manner in which the plan distributed Mexican 
Americans among the four precincts, and argued that the 
plan should have been subjected to pre-clearance under 
Section 5 of the Voting Rights Act of 1965, as amended 
(42 U.S.C. § 1973c (1976)). The district court held that 
pre-clearance was not required because the plan was



3

court-ordered, rather than legislative. Finding that the 
proposed plan remedied the malapportionment previously 
found, it directed that the 1980 primary and general elec­
tions should be conducted thereunder.

The court of appeals reversed, holding that the plan 
proposed by the County was subject to clearance under 
Section 5 of the Voting Rights Act, and that the district 
court erred in considering the constitutionality of the 
proposed plan before such clearance. Sanchez v. Mc­
Daniel, 615 F.2d 1023 (5th Cir. 1980). It relied on that 
portion of Justice White’s opinion in Wise v. Lipscomb, 
437 U.S. 535, 540 (1978), which stated that, after find­
ing an existing apportionment scheme unconstitutional, 
a federal court should afford a reasonable opportunity 
for the legislature to meet constitutional requirements 
by adopting a substitute measure, rather than for a 
federal court to devise and order into effect its own plan. 
The court of appeals also ruled that a proposed reap­
portionment plan does not lose its status as a legislative 
plan merely because it is the product of litigation con­
ducted in a federal forum.

SUMMARY OF ARGUMENT

The decision of the court below was correct, whether 
the plan at issue be deemed legislative or judicial.

1. Precise analysis, we believe, leads to the conclusion 
that the initial error of the district court lies in that 
part of its order of October 2, 1979 which directed the 
county to present a plan to the court in November, sub­
ject to a hearing in December, 1979. Under the decisions 
of this Court, after finding the existing system uncon­
stitutional, the district court should have directed the 
county itself to fashion an appropriate plan pursuant to 
law. The plan drawn by the county, to be lawful, would 
have to be cleared under Section 5. Only thereafter



4

would the court be required to rule on its constitution­
ality, if a controversy between the parties continued. 
Congress, in extending Section 5 and making it applicable 
to the jurisdictions (including Texas) newly covered by 
the 1975 amendments, expressed its understanding that 
Section 5 would operate in this manner.

There are no circumstances in this case which would 
render inappropriate this traditional remedy which has 
the approval of numerous decisions of this Court. While 
some delay would result from the need for clearance, 
and possibly from the time limitations on changes in 
Texas law, the considerations which led Congress to pre­
scribe the Section 5 clearance procedure would compen­
sate for the delay. Moreover, the district court would 
have the power to order such interim relief as it deemed 
appropriate.

2. Even if the order of October 2 be accepted as cor­
rect, and as directing a judicial, rather than a legisla­
tive, plan, the district court should be held to have 
abused its discretion in putting the plan proposed by the 
county into effect without clearance. Congress intended 
Section 5 to apply, except under the most exigent cir­
cumstance, even where a plan was court ordered. It 
deemed it important that plans proposed by legislative 
bodies in the jurisdictions covered by the Voting Rights 
Act be examined by either the Attorney General or the 
District of Columbia Court, both because of their ex­
pertise and because they would not be subject to local 
pressure. These considerations apply whether the plan 
be adopted by the legislature initially or pursuant to 
court order. The possibilities of delay envisioned by pe­
titioners could be controlled by the courts’ power to order 
prompt action and to order interim relief, if needed.



5

ARGUMENT

The court below has held that the district court, after 
finding malapportionment, should not have considered the 
constitutionality of the new plan proposed by the county 
until the plan had been cleared under Section 5 of the 
Voting Rights Act as amended (42 U.S.C. § 1973c 
(1976)). As petitioners themselves recognize in their 
brief, the basic question in this case is the validity of 
that ruling, rather than the more legalistic question 
presented in their petition as to whether the plan should 
be deemed legislative or judicial action. We agree with 
petitioners (Pet. Br. 33) that “ Section 5 applicability 
cannot be determined by resort simply to cases in which 
plans have been labeled ‘court-ordered’ or ‘legislative’ for 
these terms have been employed most frequently in cases 
in which the issue was the substantive acceptability of 
a reapportionment.” It is our position that the district 
court should not have put the plan proposed by the 
county into effect until after it had been cleared under 
Section 5, regardless of whether the plan be deemd legis­
lative or judicial.

I. ON FINDING MALAPPORTIONMENT, THE DIS­
TRICT COURT SHOULD HAVE ORDERED THE 
COUNTY TO PREPARE A PROPER CORRECTIVE 
SYSTEM PURSUANT TO LAW WHICH WOULD 
HAVE INCLUDED CLEARANCE UNDER SEC­
TION 5.

Since the time that this Court held, in Baker v. Carr, 
369 U.S. 186 (1962), that federal courts have jurisdic­
tion to determine claims of unconstitutional malappor­
tionment, this Court has repeatedly ruled that “ legisla­
tive reapportionment is primarily a matter for legislative 
consideration and determination, and that judicial relief 
becomes appropriate only when a legislature fails to re­
apportion according to federal constitutional requisites



6

in a timely fashion after having had an adequate op­
portunity to do so.” Reynolds v. Sims, 377 U.S. 533, 586 
(1964) ; see also Burns v. Richardson, 384 U.S. 73, 84- 
85 (1966) ; Gaffney v. Cummings, 412 U.S. 735, 749 
(1973) ; Chapman v. Meier, 420 U.S. 1, 27 (1975), Con­
nor v. Finch, 431 U.S. 407, 414 (1977) ; Wise v. Lips­
comb, supra, 437 U.S. at 535-39. As Justice White said 
in his opinion in Wise v. Lipscomb, supra, 437 U.S. at 
540 i1

When a federal court declares an existing apportion­
ment scheme unconstitutional, it is, therefore, ap­
propriate, whenever practicable, to afford a reason­
able opportunity for the legislature to meet con­
stitutional requirements by adopting a substitute 
measure rather than for the federal court to devise 
and order into effect its own plan. The new legisla­
tive plan, if forthcoming, will then be the governing 
law unless it, too, is challenged and found to violate 
the Constitution.

In our view, the basic error of the district court in this 
case lies in its failure to follow this fundamental direc­
tive. The district court, after finding malapportionment, 
instead of directing the county to submit a proposed new 
plan to it in November, should have directed the county 
to reapportion itself pursuant to law, reserving only the 
right to pass on the final plan after the legislative process 
was completed.2

1 While the quotation is from Justice White’s opinion for him­
self and Justice Stewart, the principle is recognized in the opinon 
of Justice Powell, for himself and three additional Justices. See 
437 U.S. at 548. Justice Marshall, who dissented in Wise, has rec­
ognized the general validity of the ruling in Chapman V. Meier, 
supra, that corrective measures should first be left to the; legis­
lature. See Connor v. Coleman, 440 U.S. 612, 622 (1979).

2 The fact that plaintiffs did not appeal from the interlocutory 
order of October 2, 1979 in this respect (when the main thrust of 
the order, i.e., that reapportionment was necessary, was in their



7

Had it done so, it is undisputed that the plan adopted 
by the legislature would have been subject to clearance 
under Section 5 of the Voting Rights Act. Connor v. 
Finch, supra, 431 U.S. at 412; Connor v. Waller, 421 
U.S. 656 (1975). This Court has repeatedly held that 
clearance under Section 5 must be obtained in covered 
jurisdictions (which admittedly include Texas) even 
though the proposed change affects the system in only a 
minor way and was undertaken for reasons other than 
discrimination. Perkins v. Matthews, 400 U.S. 379, 387 
(1971) ; Allen v. State Board of Elections, 393 U.S. 544, 
566 (1969). If the district court had followed the re­
peated directions of this Court to keep the judiciary out 
of the legislative process as much as possible, the county 
could have decided whether it wished to follow Professor 
Nash’s proposed plan and then submitted it to the At­
torney General or the District of Columbia Court under 
Section 5. Only after such clearance would it be neces­
sary to pass on any constitutional challenge to the legis­
lative plan that might remain. Such a result is consistent 
with the Congressional understanding of how Section 5 
would operate. As we discuss in detail below, Congress, 
when it extended the Voting Rights Act in 1975, made

favor) does not preclude consideration of the validity of that order 
now. An appeal from a final judgment brings up all interlocutory 
orders, even if the earlier order could have been, but was not ap­
pealed. Drayer v. Krasner, 572 F.2d 348, 353 (2nd Cir.), cert, 
denied, 436 U.S. 948 (1978), and cases cited.

Although the court of appeals, in reaching a correct result, did 
not explicitly base its decision on the ground that the district court 
erred initially in failing to direct the county to correct the mal­
apportionment legislatively (and therefore subject to Section 5 
clearance), that ground for decision is encompassed in the court’s 
holding that Section 5 clearance was required before the plan 
could go into effect. In any event, the issue, which is apparent 
on the record, is sufficiently important to warrant consideration 
by the Court. See Schlesinger V. Councilman, 420 U.S. 738, 743 
(1975).



8

explicit its understanding that Section 5 would apply to 
plans which resulted from court orders, except in urgent 
circumstances. S. Rep. No. 94-295, 94th Cong., 1st Sess. 
18-19, reprinted in [1975] U.S. Code Cong. & A dm . 
N ew s 784-86.

There are, in this case, no circumstances which mili­
tate against the application of the principle, as phrased 
in Justice White’s opinion in Wise v. Lipscomb, supra 
(437 U.S. at 539), that “ redistricting and reapportion­
ing legislative bodies is a legislative task which the fed­
eral courts should make every effort not to preempt.” 
Petitioners assert that since, under Texas law, changes 
in the election precincts of a county may be made only 
during a July or August Term {Wilson v. Weller, 214 
S.W.2d 473 (Tex. Ct. Civ. App. 1948)), “ they were 
prohibited from reapportioning the county in the manner 
in which it was done, at the time it was prepared.” 
(Pet. Br. 16).3 They do not, however, and cannot argue 
that they are without power to make a proper legislative 
reapportionment at the proper term. At most, Texas law 
would prohibit the county’s plan from becoming effective 
except during the specified months. The federal district 
court would clearly have authority to direct the district 
court to exercise its legislative judgment and submit the 
plan which it wished the county to adopt for clearance

3 Although the proper construction of Texas law was not de­
cided below, Wilson does not appear to determine the authority of 
county commissioners to redistrict only commissioners’ precincts 
outside the July or August Term. Wilson involved redistricting of 
both commissioners’ and election precincts, see 214 S.W.2d at 474. 
The issue before this Court does not turn on the distinction, be­
cause the federal courts possess adequate equity power to remove 
temporary state law impediments to complete relief. But if the 
county commissioners do have authority to alter commissioners’ 
precincts at any time under Texas law, then it would not even be 
necessary here for the district court to enter the sort of temporary 
relief we suggest in text, infra.



9

under Section 5, whether or not, under Texas law, the 
county had power to put the plan into effect at a time 
other than the term specified by state law. See Burns 
v. Richardson, supra, 384 U.S. at 85; see also Wise v. 
Lipscomb, supra, 437 U.S. at 548-49 (opinion of Powell, 
J.). The district court should have ordered the county 
to adopt a plan, and submit it for preclearance under 
Section 5, reserving the right then to pass on the con­
stitutional challenge which might remain. The plan could 
then become effective at a proper time under Texas law.

Such a ruling would involve some delay beyond the 
December date for which the district court scheduled a 
hearing, but not necessarily any very great delay. The 
district court could have ordered the county to devise a 
plan and submit it to the Attorney General or District 
of Columbia Court for clearance by a date certain. If 
the Attorney General did not find the plan objectionable 
within 60 days, the plan would be ready to go into effect 
at the time permitted by Texas law. If, under Texas 
law, the plan could not go into effect until July or Au­
gust, the district court, in the exercise of its equity 
powers, could order such temporary relief as it deemed 
appropriate. See Connor V. Coleman, 440 U.S. 612, 614 
(1979) ; Reynolds V. Sims, supra, 377 U.S. at 586.

Resolution of the case might, of course, take longer if 
the Attorney General found the plan objectionable and 
the county had either to reconsider it or await a ruling 
from the District Court of the District of Columbia. 
Rut Congress knew, when it established the Section 5 
procedure and limited jurisdiction to the District of 
Columbia, that some delay would necessarily result from 
that procedure. It felt that the expertise of the Attor­
ney General or the District of Columbia Court and the 
absence of local pressure made the continuation of ex­
clusive jurisdiction desirable. See 121 Cong. Rec. 16900- 
01 (1975), where the House defeated an amendment 
which would have eliminated the exclusive jurisdiction



10

of the District of Columbia. See also remarks on the 
floor of the Senate, 121 Cong. Rec. 24717 (1975). Con­
gress was of the view that Section 5 clearance was 
necessary, whether plans were legislatively adopted or 
court-ordered, in order to make certain that any new 
plan did not dilute the rights of minority voters. While 
necessary delay is unfortunate, delay is not in and of 
itself a reason to depart from the traditional view that 
legislation should be left to the legislature.

II. EVEN IF THE COURT PROPERLY ORDERED A  
PLAN TO BE SUBMITTED TO IT INITIALLY, IT 
WAS AN ABUSE OF DISCRETION TO APPROVE 
THE PLAN WITHOUT CLEARANCE UNDER SEC­
TION 5.

Even if the order of October 2, 1979, directing sub­
mission of a plan to the court in November, 1979, be 
accepted as correct, it was an abuse of discretion for the 
district court to pass upon the plan without requiring 
clearance under Section 5. The legislative history of the 
1975 extension of the Voting Rights Act makes it clear 
that Congress intended that, except in unusual circum­
stances, all plans, whether legislative or court-ordered, 
be subject to Section 5 clearance. Recognition and ad­
herence to that expressed policy would be in accord with 
the decisions of this Court and would further the public 
interest. The court below was therefore correct in holding 
that the district court should not have passed on the con­
stitutionality of the proposed plan until after the plan 
had been cleared under Section 5.

1. The Senate Report on the bill which became Public 
Law 94-73, the Voting Rights Act of 1975, is explicit 
as to its understanding of the relationship of Section 
5 to court-ordered reapportionment. (S. Rep. No. 94- 
295, 94th Cong., 1st Sess. 18-19, reprinted in [1975]



11

U.S. Code Cong. & A d m . N ew s 784-86.)4 Citing with 
approval the decision in Connor v. Waller, supra, the 
report stated that the ruling “ is consistent with the 
Committee’s objective to utilize a form of primary juris­
diction for Section 5 review under which courts dealing 
with voting discrimination should defer in the first in­
stance to the Attorney General or to the District of 
Columbia District Court.”  The report continues:

Thus, for example, where a federal district court 
holds unconstitutional an apportionment plan which 
predates the effective date of coverage under the 
Voting Rights Act, any subsequent plan ordinarily 
would be subject to Section 5 review. In the typical 
case, the court either will direct the government body 
to adopt a new plan and present it to the court for 
consideration or itself choose a plan from among 
those presented by the various parties to the litiga­
tion. In either situation, the court should defer its 
consideration— or selection among—-any plans pre­
sented to it until such time as the plans have been 
submitted for Section 5 review. Only after such 
review should the district court proceed to any 
fourteenth or fifteenth amendment question that 
may be raised.

(S. Rep., supra, at 18-19; [1975] U.S. Code Cong. & 
A dm . N ew s at 784-85.)

The report interpreted this Court’s decision in Connor 
v. Johnson, 402 U.S. 690 (1971) as dealing with the 
exceptional situation where, because of exigent circum­
stances, a court is required to fashion a plan itself. Even 
in that situation, the report pointed out, in fashioning

4 The report is on S. 1278 whereas the measure finally enacted 
arose out of H.R. 6219. The House bill was, however, essentially 
the same as S. 1279 and was used as the basis for debate and 
enactment , by the Senate because of the need for expedition before 
the Voting Rights Act would expire. See 121 Cong. Rec. 24116 
(1975.)



12

the plan, a court should follow Section 5 standards. And 
it indicated the Committee’s view that the exceptions 
should be rare by pointing out that, even where a court 
adopted a plan without clearance, if a state should later 
legislatively adopt the court-fashioned plan, Section 5 
would apply. The reason for the primacy of Section 5, 
the report stated, was that the Attorney General and 
the District of Columbia Court, “ as the experts in the 
area, have developed familiarity with the impact of dis­
criminatory voting systems, and it is they who should 
assess the discriminatory impact of a system.”  S. Rep., 
supra, at 19.

While the House Report (H.R. Rep. No. 94-196) is 
not as explicit as the Senate report with respect to the 
relationship of Section 5 to orders in litigated cases, the 
House Report does make clear the importance which the 
House, as well as the Senate, attached to Section 5. The 
House Report stated (at 10) that continuation of Section 
5 was necessary “ to insure that any future practices 
will be free of discriminatory purpose and effect.”  It 
pointed out (at 11) that it would be ironical if the de­
cisions mandating “ one man, one vote” would be used to 
undercut the gains made by minorities, and stated that 
Section 5 was needed to make certain that there would 
be continued progress in this area. Similar remarks, 
essentially repeating the statements in the House Re­
port, were made by supporters of the bill on the floor 
of the House. See 121 Cong. Reg. 16244, 16247-48, 16251 
(1975). An amendment to eliminate the requirement 
that Section 5 clearance be judicially obtained only from 
the District of Columbia court was defeated, 121 Cong. 
Rec. 16900-01 (1975). Those opposing the amendment 
pointed out that concentration of such cases in the Dis­
trict of Columbia was needed, both to resist local pres­
sure and to make use of the expertise acquired by the 
District of Columbia Court.



13

Since, as the Senate report noted (S. Rep., supra, at 
16), it was only after 1970 that Section 5 came into 
extensive use and its importance was recognized, the 
reports and debates on the 1975 amendments were the 
first real opportunity Congress had to examine the actual 
operation of Section 5. Its understanding of the opera­
tion of that section, at a time when it not only extended 
its life, but made it applicable to jurisdictions (including 
Texas) not previously covered, renders this legislative 
history very pertinent to the judicial interpretation of 
Section 5.

2. Policy considerations, as well as the legislative 
history, dictate that this Court should direct the lower 
courts to fulfill the expectations of Congress that new 
apportionment plans in the area covered by the Voting 
Rights Act be subject to Section 5 clearance, whether 
resulting from legislative initiative or court orders. As 
discussed in Point I, such an approach is consistent with 
the established judicial policy of leaving the legislative 
process as much as possible to the legislature. On the 
other hand, Congress, when it enacted Section 5 (see 
South Carolina v. Katzenbach, 383 U.S. 301 (1966)), 
and when it extended it thereafter, decided that new 
plans could so subtly mask discrimination that a cen­
tralized body, applying consistent standards, was needed 
to make sure that reapportionment was not used as a 
means of disenfranchising minorities. It also, as dis­
cussed above, decided that it was necessary to centralize 
the authority to pass on plans in the District of Colum­
bia, not only because of the expertise which that court 
had developed, but also because it felt that local judges 
would be subject to local prejudices and local pressure. 
Those considerations apply whether a new plan be legis­
latively adopted or court-ordered. Whatever delay may 
be involved in Section 5 clearance, Congress obviously 
thought that the need for consideration by a body with



14

consistent standards, removed from local pressures, was 
more important.

Petitioners argue that requiring clearance may result 
in indefinite delay by a recalcitrant legislature. However, 
a court is not, by requiring clearance, deprived of its 
general equity power to take measures to overcome un­
due delay. See pp. 9-10 supra. The suggestion that 
Section 5 should not apply to a district where the exist­
ing plan has already been deemed unconstitutional, since 
this may necessitate continuation, for a time, of a system 
officially adjudged improper, is not a convincing reason 
to disregard the clear intent of Congress. As discussed 
above, in most cases, where a legislature acts in good 
faith, clearance from the Attorney General could be 
obtained in short order. And even if some delay is in­
volved, it is better to have an old bad system continued 
for a short time (see Reyonlds v. Sims, supra, 377 U.S. 
at 585) than to have a new bad system put into effect 
for the indefinite future. It was the Congressional judg­
ment that Section 5 clearance was essential to protect 
the rights of minorities under the Voting Rights Act. 
This Court should direct district courts to effectuate that 
Congressional intention, particularly since it is in accord 
with the judicial policy of avoiding, as much as possible, 
involving the courts in the legislative process.



15

CONCLUSION

For the foregoing reasons, the judgment below should
be affirmed.

Respectfully submitted,

John B. Jones, Jr.
Norman Redlich 

Co-Chairmen
W illiam L. Robinson * 
Norman J. Chachkin 
Beatrice Rosenberg 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amiens Curiae
* Counsel of Record