Dougherty County, GA Board of Education v. White Brief for Appellee

    In  The

l&upratt? (Emtrt nf tl}? Inttrii Btiitvs
October Term , 1977

No. 77-120

Dougherty County , Georgia Board op E ducation, et al,
Appellants,

v.

John E. W hite

Appeal from the United States District Court for the 
Middle District of Georgia, Albany Division

BRIEF FOR APPELLEE

John R. Myer

1515 Healey Building 
57 Forsyth Street, N.W. 
Atlanta, Georgia 30303

Robert A. M urphy 
W illiam  E. Caldwell 
N orman J. Ch achkin  

Law yers ’ Committee for 
Civil Rights U nder La w  

733 15th Street, N.W. 
Washington, D.C. 20005

Attorneys for Appellee



INDEX
Page

Table of Authorities ____ _______ ____ _______________ __  n

Statement________________ ____________________ ______ __  1

ARGUMENT

Introduction_______ _______ ,................ ..... ............. ......  1

RULE 58 OF THE DOUGHERTY COUNTY
BOARD OF EDUCATION CONSTITUTES 
CONTROL OVER THE ELECTORAL PROC­
ESS AND IS FOR THAT REASON A “COV­
ERED CHANGE” WITHIN THE MEANING 
OF SECTION 5 OF THE VOTING RIGHTS 
ACT OF 1965 __ ___________ ______________ __ 2

Rule 58 Addresses the Electoral Process_____ 4

Because Rule 58 Is a Barrier to Access to the 
Electoral Process, It Is a Covered Change 
Under Section 5 _________________ _________ 7

The Voting Rights Act was Intended to Sub­
ject to Scrutiny Precisely the Sort of Barrier 
to Candidacy Imposed by Rule 5 8 _________  10

The Attorney General Has Interpreted Sec­
tion 5 of the Act to Cover Rule 5 8 _________  11

THE BOARD OF EDUCATION IS A “COVERED 
ENTITY” UNDER SECTION 5 OF THE VOT­
ING RIGHTS A C T ____________________________  12

Conclusion ____________________________ ___________ ____14



II

TABLE OF AUTHORITIES

Cases

Allen V. State Bd. of Elections, 393 U.S. 544
(1969) ______________ __________ __________ 3 ,4 ,7 , 9n, 11

Beer v. United States, 425 U.S. 130 (1976)_____ 3
Bullock V. Carter, 405 U.S. 134 (1971)___________ 8, 14
Campbell V. Rosebud Consol. School Dist., 186 Ga.

541, 198 S.E. 225 (1938)_______________________ 13
Cipriano V. City of Houma, 395 U.S. 701 (1969)-., 8
Clayton V. North Carolina State Bd. of Elections,

317 F. Supp. 915 (E.D.N.C. 1970) ... __________  6
Cooper v. Aaron, 358 U.S. 1 (1958)______________ 14
Fairley V. Patterson, 393 U.S. 544 (1969)_________ 4,13
Georgia V. United States, 411 U.S. 526 (1973).... 3, 12
Hadnott v. Amos, 394 U.S. 358 (1969) ___________  4, 7
Kirksey V. Board of Supervisors, 554 F.2d 139 (5th

Cir.), cert, denied, 46 U.S.L.W. 3357 (19 77)..-. 9
Kramer v. Union Free School Dist., 395 U.S. 621

(1969) ____ _____________________________________  8
Lane V. Wilson, 307 U.S. 268 (1939) ______________ 4
Lubin V. Panish, 415 U.S. 709 (1974)_____________  8
Paige V. Gray, 399 F. Supp. 459 (M.D. Ga. 1975), 

vacated 538 F.2d 1108 (5th Cir. 1976), on re­
mand, 437 F. Supp. 137 (M.D. Ga. 1977)............ . 7n

Parnell V. Rapides Parish School Bd., 563 F.2d 180
(5th Cir. 1977)_________________ _____ __________  9

Perkins V. Mathews, 400 U.S. 379 (1971) ......3, 4, 5,11-12
Perkins V. Mathews, 301 F. Supp. 565 (S.D. Miss.

1969), rev’d 400 U.S. 379 (1971)________________ 6
Seaboard Air Line Ry. V. Wright, 165 Ga. 367, 140

S.E. 863 (1927) ________ _____ _________ ________  13
Smith V. Allwright, 321 U.S. 649 (1944)_______  9n
South Carolina V. Katzenbach, 383 U.S. 301

(1966) ____ _____________________________________  6n, 14
Sumter County Executive Comm. V. Dearman, 514

F,2d 1168 (5th Cir. 1975) _____________________  7
Terry v. Adams, 345 U.S. 461 (1953)_____________  9n
Turner V. Fouche, 396 U.S. 346 (1970)____________ 8

Page



I ll

Cases— Continued

Ty Ty Consol. School Dist. y. Colquitt Lumber Co.,
153 Ga. 426, 112 S.E. 561 (1922) ____ ________ ... 13

United States V. Beaty, 288 F.2d 653 (6th Cir.
1961) --------------------------------------------------- ------------ 9n

United States V. Board of Comm’rs of Sheffield, 46
U.S.L.W. 4189 (March 6, 1978) _____________ __ passim

United States V. Board of Educ. of Greene County,
332 F.2d 40 (5th Cir. 1964) _ _ _______ _____ _ 9n

United States V. Bruce, 353 F.2d 474 (5th Cir.
1965) ___________________________________________  9n

White V. Regester, 412 U.S. 755 (1973)___________ 8
Whitley V. Williams, 393 U.S. 544 (1969)________  7

Statutes and Regulations

28 U.S.C. § 1331 ............................................ ............. . 3n
28 U.S.C. § 1343(3) and ( 4 ) ............... ........................ . 3n
42 U.S.C. § 1971b ........ ............. ............ ........................  10
42 U.S.C. § 1973c (§5,  Voting Rights Act of 1965)..passim
42 U.S.C. § 1983 ___________________________________ 3n
Ga. Code Ann. § 23-1715 ______________________ ___ 13
Ga. Code Ann. § 32-901  __________________ ___ _____  13
28 C.F.R. §§ 51.1-51.29 (1977)_____________    lln

Other Authorities

Pubic Papers of the Presidents, John F. Ken­
nedy, 1963 _______________________    9n

H.R. Rep. No. 439, 88th Cong., 1st Sess. (1965), 
reprinted in [1965] U.S. Code Cong. & Adm.
News 2437 _____..___ ______________________ ____  lln

S. Rep. No. 94-295, 94th Cong., 1st Sess. (1975), 
reprinted in [1975] U.S. Code Cong. & Adm.
News 774 ................................. .......................... ............  lln

Hearings on Civil Rights before Subcommittee No.
5 of the House Judiciary Committee, 88th Cong.,
1st Sess. (1963)............. ...... ...... ...............................  9n

Page



IV

Other Authorities— Continued
Page

U.S. Bureau of the Census, Census of Popula­
tion: 1970, General Social and Economic 
Characteristics, Final Report PC(1)-C12,
Georgia _____ ___ _______________________________  7n

U.S. Comm’n on Civil Rights, The Voting Rights
A ct: Ten Years A fter (1975)___ ____________  On, 11

U.S. Comm’n on Civil Rights, V oting (1961)_____  10
U.S. Comm’n on Civil Rights, W ith Liberty and 

Justice for All (1959)..... .............. ...................... 10



In  The

iutyrnm' (Erntrt at %  luttefr %>tnt?8
October Term, 1977

No. 77-120

Dougherty County, Georgia Board op Education, et al.,

Appellants,

v.

John E. W hite

Appeal from the United States District Court for the 
Middle District of Georgia, Albany Division

BRIEF FOR APPELLEE

STATEMENT

Appellee does not quarrel materially with the Statement 
of the Case as presented in the Brief for Appellants.

ARGUMENT

Introduction

The question presented on this appeal is whether a pub­
lic school system’s newly adopted rule requiring that em­
ployees must take leave without pay in order to run for, 
or serve in, public office, must be submitted for pre­
clearance pursuant to Section 5 of the Voting Rights Act 
of 1965. (The three-judge district court held that Section 
5 applies, and that the rule therefore must be submitted



2

for pre-clearance either to the Attorney General of the 
United States, or to the United States District Court for 
the District of Columbia in a declaratory judgment ac­
tion.) This case does not involve a determination whether 
the rule in question has the purpose or effect of discrimi­
nating on the basis of race; initial determination of that 
“ substantive” inquiry, under the Voting Rights Act, is 
the province of the Attorney General or the District 
Court for the District of Columbia.

I

RULE 58 OF THE DOUGHERTY COUNTY BOARD OF 
EDUCATION CONSTITUTES CONTROL OYER THE 
ELECTORAL PROCESS AND IS FOR THAT REASON 
A “COVERED CHANGE” WITHIN THE MEANING OF 
SECTION 5 OF THE VOTING RIGHTS ACT OF 19651

If the adoption by Appellant Dougherty County Board 
of Education on June 12, 1972 of its Rule 58 (requiring 
employees who run for office to take unpaid leave during 
their candidacy or tenure) was a “ covered change” under 
Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 
§ 1973c, then the Rule should not have been applied to 
Appellee until it had either been submitted and approved 
by the Attorney General of the United States, or declared 
valid and nondiscriminatory in an action brought by Ap­
pellants in the United States District Court for the Dis­
trict of Columbia. The question of the Act’s coverage, 
therefore, is determinative of Appellee’s right to some 
judicial remedy respecting Rule 58.2

1 Appellee has reversed the order of questions presented and 
argued by Appellants because the question of “ covered entity” , is 
readily resolved if Rule 58 is a “covered change.” On the other 
hand, if Rule 58 is not a “ covered change,” then the “ covered entity” 
issue need not be reached.

2 It should be noted that the question of appropriate remedy was 
remanded by the court below to the originating single judge. Ap­



3

This Court’s decisions during the past ten years have 
given “ the broadest possible scope” to the coverage of 
Section 5. In Allen v. State Bd. of Elections, 393 U.S. 
544, 567 (1969), this Court interpreted Section 5 to re­
quire prior federal scrutiny of “ any state enactment which 
altered the election law in a covered state [i3] in even a 
minor way.” See also, Perkins v. Mathews, 400 U.S. 379, 
387-94 (1971). Later decisions of this Court have held 
that this “broad” application of Section 5 (first stated in 
Allen) has been subsequently ratified by the Congress in 
the 1970 and 1975 extensions of the Voting Rights Act. 
E.g., Georgia v. United States, 411 U.S. 526, 533 (1973); 
see also, Beer v. United States, 425 U.S. 130 (1976).

Most recently, the controlling principle of construction 
was formulated by this Court in United States v. Board 
of Comm’rs of Sheffield, 46 U.S.L.W. 4189 (March 6, 
1978),3 4 as follows:

[Section 5 applies to] all entities having power over 
any aspect of the electoral process within designated 
jurisdictions, not only to counties or to whatever 
units of state government perform the function of 
registering voters. {Id. at 4191) (emphasis added).
. . .  it appears to follow necessarily that § 5 has to 
apply to all entities exercising control over the elec­
toral processes within covered States or subdivisions. 
{Id. at 4192) (emphasis added).

pendix [hereinafter, “ App.” ] 36a. In his Complaint, Appellee sought 
declaratory and injunctive relief and also an award of back pay to 
compensate him for sums he allegedly lost because Rule 58 was 
applied to him; jurisdiction was claimed not only pursuant to the 
Voting Rights Act but also under 28 U.S.C. §§ 1343(3) and (4) 
and 1331 to enforce rights protected by 42 U.S.C. § 1983, the Four­
teenth and Fifteenth Amendments to the Constitution. App. 2a-3a, 
6a-7a.

3 As Appellants concede, there is no question that the entire State 
of Georgia is a “covered” State. Brief for Appellants, at 14.

4 Hereinafer cited as “Sheffield.”



4

While Sheffield directly involved only the “covered entity” 
issue, this Court’s rulings since Allen v. State Bd. of 
Elections, supra, have consistently rejected the argument 
that there are any de minimis or “local matter” exceptions 
to the “ election law change” coverage of Section 5. For 
example, Allen involved write-in procedures in connection 
with a change from paper ballots to machine voting; 
Fairley v. Patterson (decided with Allen), a statute au­
thorizing county governing bodies to adopt at-large voting 
schemes; Perkins v. Mathews, supra, the location of poll­
ing places; Hadnott v. Amos, 394 U.S. 358 (1969), the 
date for filing notice that an individual intended to be­
come a candidate.

As this Court noted in Sheffield, 46 U.S.L.W. at 4194, 
the fact that Section 5 coverage extends to even the most 
minor and subtle changes in the electoral mechanism with­
in a “covered State” is a reflection of the constitutional 
underpinnings of the Voting Rights Act:

One would expect that the substantive duties im­
posed in the Act, as in the constitutional provisions 
that it is designed to implement, would apply not 
only to governmental entities formally acting in the 
name of the State, but also to those political units 
that may exercise control over critical aspects of the 
voting process, (emphasis added.)

Just as the Fifteenth Amendment “nullifies sophisticated 
as well as simple-minded modes of discrimination,” Lane 
V. Wilson, 307 U.S. 268, 275 (1939), so Section 5 coverage 
attaches to any enactment controlling the electoral process, 
whether or not it is called a “voting” change.

Rule 58 Addresses the Electoral Process

Appellants argue that the Dougherty County Board of 
Education’s Rule 58 is a personnel policy, not a regulation 
of the electoral process, and is therefore not subject to the



5

Voting Rights Act. But even if a regulation is intended 
to accomplish some permissible purpose outside the sphere 
of candidacy and voting, it is subject to Section 5 if it 
constrains the electoral process. See, e.g., Perkins v. 
Mathews, supra. Moreover, the assertion that Rule 58 is 
simply “ a means of getting a full day’s work for a full 
day’s pay— nothing more and nothing less,” Brief for 
Appellants, at 20, is supported neither by the language of 
the Rule nor by the purported justification for its adop­
tion.

On its face, Rule 58 addresses the conditions under 
which an individual who happens to be an employee of 
the Dougherty County Board of Education may stand for 
office; it says nothing about “ a day’s work for a day’s 
pay.” App. 3a-4a, 9a ( # 5 ) .  The fact that Rule 58 re­
quires elected but not appointed public officials to take 
leave without pay also is inconsistent with Appellants’ 
argument that it was adopted as a personnel measure. 
Nor was it adopted because the Board had experienced 
problems because of absences from duty on the part of 
staff participating in political campaigns. Appellee is the 
only employee who has ever run for office, App. 12a, 16a 
(.#5) ; the announced justification for the rule did, not in­
clude any reference to problems with Appellee or any 
other employee in connection with political campaigns or 
public service, App. 12a, 14a ( # 4 ) .  Instead, Appellants 
claim only that

. . . the Board of Education deemed it necesary to 
have a rule which would set forth the policy of the 
Board pertaining to personnel within the school sys­
tem offering for elective office and serving in an 
elective office if elected thereto.

App. 16a (# 4 )  (emphasis added). Under these circum­
stances, the characterization of Rule 58 as a “personnel 
policy” no more avoids Section 5 coverage than did the 
claimed justifications that inadequate space required a



6

change in polling places, see Perkins v. Mathews, 301 
F. Supp. 565, 568 (S.D. Miss. 1969), rev’d 400 U.S. 379 
(1971), or that the possibility of “ disruption” necessi­
tated a change in the permissibility of electioneering be­
tween 50 and 500 feet from the polls, see Clayton v. North 
Carolina State Bd. of Elections, 317 F. Supp. 915, 920-21 
(E.D.N.C. 1970) (three-judge court).

There are ample means available to Appellant Board 
of Education, which has its employees under contract, to 
enforce its right to obtain “ a full day’s work for a day’s 
pay.” For example, if it has not already done so, the 
Board may adopt policies governing absences from school 
grounds during working hours—both with and without 
leave. What it may not do, however, without prior ap­
proval of the Attorney General or the United States Dis­
trict Court for the District of Columbia, is to adopt a 
Rule explicitly addressing itself to the electoral process.5

5 The extent to which Rule 58 can be justified as a nonracial per­
sonnel regulation is also relevant to the substantive question to be 
determined by the Attorney General or the United States District 
Court for the District of Columbia; the purpose of the Voting 
Rights Act’s pre-clearance requirement was to avoid the necessity 
of case-by-case adjudication. South Carolina v. Katzenbach, 383 
U.S. 301, 313-14 (1966) ; Sheffield, 46 U.S.L.W. at 4191-92. Although 
this Court need not pass on the issue, it should not be overlooked 
that there are substantial reasons why Rule 58 is suspect.

First, the Rule was adopted within a month after Appellee had 
announced his initial candidacy for a legislative seat. Second, the 
Board had no experience suggesting that employee participation in 
election campaigns would causes absences from duty. No Board of 
Education employee had previously run for office. Third, there is a 
history of racial discrimination affecting voting in Dougherty 
County. For instance, in 1972 when Appellee first stood for office, 
legislative elections were on an at-large basis. The Attorney Gen­
eral eventually objected under Section 5 to this districting scheme 
and ultimately the General Assembly of Georgia adopted a modified 
plan which provided for a single-member district, for which Appellee 
campaigned successfully in 1974. See U.S, Comm’n on Civil Rights, 
T he V oting Rights A c t : T en Y ears A fter (1975), at 230-34. 
Regarding recent voting rights litigation in the City of Albany, the



7

Because Rule 58 Is a Barrier to Access to the 
Electoral Process* It Is a Covered 

Change Under Section 5

An analysis of this Court’s Section 5 rulings demon­
strates that one indicator of a “ covered change” is that 
it increases the difficulty of obtaining access to a position 
on the ballot. In Whitley V. Williams (a companion case 
decided with Allen v. State Bd. of Elections, supra), this 
Court held that Section 5 coverage extended to changes 
which “appear aimed at increasing the difficulty for an 
independent candidate to gain a position on the general 
election ballot.”  393 U.S. at 570. This “Whitley rule’ 
was subsequently applied in Hadnott v. Amos, swpra, 
which involved changes in the filing deadlines for inde­
pendent candidates. In Hadnott this Court ruled that 
“ [t]he increased barriers placed on independent candi­
dates by Alabama’s Garrett Act likewise bring it within 
the purview of § 5 of the Federal Act.” 394 U.S. at 366. 
See also, Sumter County Executive Comm. V. Dearman, 
514 F.2d 1168 (5th Cir. 1975).

This Court has consistently recognized that the charac­
ter of regulations which touch upon the electoral process

county seat of Dougherty County, see Paige v. Gray, 339 F. Supp. 
459 (M.D. Ga. 1975), vacated, 538 F.2d 1108 (5th Cir. 1976), on 
remand, 437 F. Supp. 137 (M.D. Ga. 1977). Finally, the Attorney 
General or the U.S. District Court should consider the extent to 
which, historically, public school teaching has been one of the few 
professions open to Blacks in Georgia, so that a rule like the one in 
issue here has a far greater impact upon potential educated, articu­
late Black candidates than upon whites. For example, the 1970 
Census reported that of 208,433 Georgia residents whose occupations 
fell into.the “professional” classification, 53.8% of the Blacks were 
employed as elementary and secondary school teachers, compared to 
only 21.2% of the white “professionals.” Black citizens constituted 
25.2% of the State’s teaching force but only 11.7% of the State’s 
total “professional” workforce, as reported in the census. U.S. Bu­
reau of the Census, Census of P opulation: 1970, General Social 
and E conomic Characteristics, Final Report PC(1)-C12, Georgia, 
at Table 54.



8

must be measured realistically with a view to their im­
pact, and that financial barriers to candidacy affect that 
process in a direct and forceful fashion. Thus, this Court 
has invalidated certain candidate qualifying fee schemes 
under the Fourteenth Amendment under a standard of 
“ close scrutiny” triggered by appreciation of the practi­
cal fact that voting rights were implicated by such 
schemes. The Court said that an unrealistically high 
qualifying fee (without an alternative method for quali­
fying) “ tends to deny some voters the opportunity to vote 
for a candidate of their choosing; at the same time, it 
gives the affluent the power to place on the ballot their 
own names or the names of persons they favor. . . . [W]e 
would ignore reality were we not to recognize that this 
system falls with unequal weight on voters, as well as 
candidates, according to their economic status.” Bullock 
v. Carter, 405 U.S. 134, 144 (1971). See also, Lubin v. 
Panish, 415 U.S. 709 (1974). Similarly, this Court has 
struck down property ownership requirements for public 
officeholding. In Turner v. Fouche, 396 U.S. 346, 362 
(1970), this Court held unconstitutional a Georgia state 
law requiring that members of county boards of educa­
tion be “ freeholders” because citizens “ do have a consti­
tutional right to be considered for service without the 
burden of invidiously discriminatory disqualifications.” 
See also, Kramer v. Union Free School Dist., 395 U.S. 
621 (1969) (right to cast ballot); Ci-priano v. City of 
Houma, 395 U.S. 701 (1969) (same). Finally, the prin­
ciple has been applied in cases challenging at-large re- 
districting plans as racially discriminatory. In White v. 
Regester, 412 U.S. 755, 765-70 (1973), this Court recog­
nized that where there is a history of racial discrimina­
tion in voting and minority citizens have not been able in 
at-large contests to elect minority candidates to public 
office, a finding that the political processes are not equally 
accessible to non-minority and minority groups is appro­
priate and single-member-district plans may be required.



9

Accord, e.g., Parnell v. Rapides Parish School Bd., 563 
F.2d 180 (5th Cir. 1977) ; Kirksey v. Board of Super­
visors, 554 F.2d 139, 142-46, 148-51 (5th Cir.), cert, 
denied, 46 U.S.L.W. 3357 (1977).

In each of its cases, as in the earlier “ white primary” 
rulings,6 this Court has utilized a pragmatic, not a forma­
listic, test to determine whether the challenged practice 
constituted part of the electoral process. Under the same 
sort of realistic, practical approach, the Dougherty Coun­
ty Board of Education’s Rule 58 directly controls the 
political process by making it more difficult for at least 
some potential candidates to qualify. School Board em­
ployees must be willing to endure the financial sacrifice 
of foregoing wages during the period of campaigning and 
serving in an elected post. Thus, although the School 
Board does not conduct elections, its adoption of Rule 58 
creates substantial additional burdens for potential candi­
dates interested in running for office if they are school 
system employees,7 notwithstanding the employees’ ability 
or willingness to undertake continued full performance of 
their employment responsibilities.

Even though Rule 58 does not apply to all candidates 
for elective office, then, it does directly control elections 
since on its face it limits and impedes the ability of school 
system employees to run for elective office.8 * * * Thus Rule 58 
is a “covered change” under Section 5.

6 E.g., Smith v. Allwright, 321 U.S. 649 (1944) ; Terry v. Adams, 
345 U.S. 461 (1953).

7 This is particularly true for Black citizens of the county. See 
note 5 supra.

8 Although Appellee has in the past made the necessary financial
sacrifice to stand for office, there can be no doubt that Rule 58
continues to impose a severe burden on Appellee and other school 
system employees faced with the decision whether to run. Cf. Allen 
V. State Bd. of Elections, supra, 393 U.S. at 553 (action challenging
rule forbidding use of gummed stickers for “write-in” candidates 
may be maintained for prospective relief even though counting of



10

The Voting Rights Act Was Intended to Subject 
to Scrutiny Precisely the Sort of Barrier to 

Candidacy Imposed by Rule 58

Economic reprisals for participation in the electoral 
process have long been an abuse Congress has sought to 
eliminate. In the Civil Rights Act of 1957, Congress re­
sponded to this discriminatory practice with the enact­
ment of 42 U.S.C. § 1971b, concerning intimidation of 
voters. Notwithstanding the broad judicial interpreta­
tion of this statute to encompass economic reprisals,9 the 
problem persisted, as documented by the reports of the 
United States Civil Rights Commission. U.S. Comm’n 
on Civil Rights, WITH LIBERTY AND JUSTICE FOR 
ALL 47 11959) : U.S. Comm’n on Civil Rights, VOTING
190 (1961).11 Submitting his proposed civil rights leg­
islation to Congress in 1963, President Kennedy specifi­
cally noted the continuing economic retaliation against 
Black citizens exercising their constitutional rights.12

In the United Sttaes Civil Rights Commission’s 1975 
report on the Voting Rights Act, the Commission cited

disputed ballots in election in which rule applied would not affect 
result).

9 United States v. Board of Educ. of Greene County, 332 F.2d 40 
(5th Cir. 1964) ; United States V. Beaty, 288 F.2d 653 (6th Cir. 
1961) ; United States V. Bruce, 353 F.2d 474 (5th Cir. 1965).

10 “ Factors that discourage or prevent Negroes from registering to 
vote, include in some places, the fear of bodily harm and loss of jobs.”

11 “ In several counties, Negro teachers are warned to refrain from 
taking too active an interest in political matters upon pain of losing 
their jobs. An even more widespread inhibiting factor is fear of 
physical or economic reprisal.”

12 “ Too often those who attempt to exert their constitutional rights 
are intimidated. Prospective registrants are fired.”  Message of 
February 28, 1963, Public Papers of the Presidents, John F. Ken­
nedy, 1963, at 223, as quoted in Hearings on Civil Rights before Sub­
committee No. 5 of the House Judiciary Committee, 88th Cong., 1st 
Sess. 927 (1963).



11

numerous examples of economic retaliation against teach­
ers and school board employees participating in the elec­
toral process. U.S. Comm’n on Civil Rights, T he  V oting  
R ights  A c t : T en  Y ears A fter  185, 189,191, 193-95, 197 
(1975), and the legislative history of the Voting Rights 
Act of 1965 and the 1975 extension reflect Congressional 
concern over this seemingly intractable problem.13 The 
general language of Section 5y and Congress’ endorsement 
of this Court’s broad construction of that provision in Allen 
and other cases, see p. 3 supra, thus reflect its desire to 
eliminate— or at the least to subject to scrutiny— any eco­
nomic sanctions for political activity by minority citizens.

The Attorney General Has Interpreted Section 5 
of the Act to Cover Rule 58

The conclusion that Rule 58 is a “covered change” sub­
ject to Section 5 pre-clearance is further buttressed by 
the administrative interpretation of the statute by the At­
torney General. Pursuant to duly adopted regulations,14 
the Attorney General requested that the Dougherty Coun­
ty Board of Education submit Rule 58 for Section 5 pre­
clearance. App. 28a.15 The request was ignored by the 
Appellant School Board, and Rule 58 has never been sub­
mitted for Section 5 review. App. 19a (# 6 ) .

The central role of the Attorney General in interpret­
ing Section 5 was discussed at length by this Court in 
Sheffield, supra, 46 U.S.L.W. at 4195; that interpretation 
has consistently been afforded great deference. See Per­

13 See H.R. Rep. No. 439, 89th Cong., 1st Sess. (1965) ,reprinted 
in [1965] U.S. Code Cong. & A dm . News 2437, 2452; S. Rep. No. 
94-295, 94th Cong., 1st Sess. 26 (1975), reprinted in [1975] U.S. 
Code Cong. & A d m . News 774, 792.

14 28 C.F.R. §§ 51.1-51.29 (1977).
15 Although not printed in the Appendix, the date shown on the 

letter request of the Attorney General is August 26, 1976. See 
App. 26a ( # 3 ) .



12

kins v. Mathews, supra, 400 U.S. at 390-91; Georgia v. 
United States, supra, 411 U.S. at 536-41. Here, the order 
of the three-judge court is congruent with, and in effect 
enforces, the ruling of the Attorney General with respect 
to coverage. That Order should be affirmed.

II

THE BOARD OF EDUCATION IS A “COVERED EN­
TITY” UNDER SECTION 5 OF THE VOTING RIGHTS 
ACT

As Appellee has demonstrated above, Rule 58 is a 
“covered change” subject to Section 5 pre-clearance be­
cause it amounts to “control over the electoral process.” 
Appellants also argue that the court below erred because 
the Dougherty County School Board is not a “covered 
entity.” However, this Term’s ruling in Sheffield makes 
clear that if Rule 58 is a “ covered change,” then the 
School Board is a “covered entity.”  16 There, this Court 
held that all “state actors” in a covered State (or a cov­
ered political subdivision) which exercise control over the 
electoral process must submit such changes for pre- 
clearance pursuant to Section 5. The Voting Rights Act 
applies “territorially” within such States or subdivisions 
and is not limited to entities which conduct voter registra­
tion or elections.

16 The former question turns, as set out above, on whether Appel­
lant Board of Education exerts “control over the electoral process” 
when it, inter alia, adopts regulations such as Rule 58. The answer 
is clearly that it does—and while Appellants correctly assert that no 
previous decision is precisely on all fours with the situation here 
presented, they ignore the fact that there is no reported decision 
sustaining the exclusion from Section 5’s pre-clearance requirement 
of any statute, ordinance or regulation which operates to burden 
access to the ballot.



13

Under Georgia law, there is no question that the 
Dougherty County Board of Education is a “political sub­
division” of the State. Ty Ty Consol. School Dist. v. 
Colquitt Lumber Co., 153 Ga. 426, 427, 112 S.E. 561 
(1922) ; Seaboard Air Line Ry. V. Wright, 165 Ga. 
367, 371, 140 S.E. 863, 865 (1927) ; Campbell V. Rosebud 
Consol. School Dist., 186 Ga. 541, 548, 198 S.E. 225, 229 
(1938); Ga. Code A n n . § 23-1715. As Appellants frankly 
admit, the “ Board of Education is a political subdivision 
[of the State] charged with the responsibility of operat­
ing the public schools of Dougherty County, Georgia.” 
Brief for Appellants, at 14-15. As such a political entity 
of the State of Georgia, it is! a “ state actor” for Section 5 
purposes.

Here, the General Assembly of Georgia has chosen to 
delegate to local county boards of education the authority 
to administer local school systems. Ga . Code A n n . § 32- 
901. Since Sheffield answers in the negative the question 
whether an entity must register voters to be “ covered” 
by Section 5, and since Rule 58 is a covered change, the 
fact that the School Board, rather than the State, adopted 
Rule 58 does not defeat Section 5 coverage. Compare 
Fairley v. Patterson, supra, 393 U.S. at 550 (local option 
statute allowing change to at-large elections).

As this Court stated in Sheffield, supra, once a State 
has been designated under Section 4(a),  “all political 
units within it are subject to the pre-clearance require­
ment.” 46 U.S.L.W. at 4149. See also id. at 4197 (Powell, 
J., concurring). Although a school board could not be the 
basic unit “ designated” under Section 4(a), once a State 
or appropriate political subdivision has been so desig­
nated, then all entities exercising formal or informal con­
trol over the electoral process therein are subject to 
Section 5.



14

This result is wholly in accord with the legislative pur­
pose to make unnecessary tedious litigation of each elec­
toral process change in every jurisdiction, and to “ shif [t] 
the advantages of time and inertia from the perpetrators 
of the evil to its victims.” Sheffield, 46 U.S.L.W. at 4192. 
If this Court were to hold that Section 5 coverage turned 
on whether the challenged action were only of local rather 
than statewide application, a basic goal of uniformity in 
the administration of the Voting Rights Act would be lost. 
The scope of federal scrutiny over the “extraordinary 
stratagem of contriving new rules of various kinds for the 
sole purpose of perpetuating voting discrimination,” South 
Carolina v. Katzenbach, supra note 5, 383 U.S. at 335, 
should not depend on the manner of a particular State’s 
exercise, or delegation of the power to exercise, control 
over the electoral process. Cf. Cooper v. Aaron, 358 U.S. 
1 (1958).

CONCLUSION

Affirmance of the judgment below will not subject 
every employment rule or practice of every school board 
or special-purpose district in covered States or political 
subdivisions to the pre-clearance requirement. Rather, the 
determination of Section 5 coverage turns on the specific 
facts of each case. Cf. Bullock v. Carter, supra, 405 U.S. 
at 149. Here, the rule in question explicitly addresses the 
electoral process and imposes a direct barrier to candidacy. 
Hence it clearly falls within the scope of Section 5. Re­
versal of the judgment below would insulate from scrutiny 
by the Attorney General even those practices of entities 
which, though they are neither election boards nor munici­
palities, may have very damaging effects upon the oppor­
tunities of Black citizens to become candidates for or serve 
in public office.



15

For these reasons, Appellee respectfully submits that 
the judgment below should be affirmed.

Respectfully submitted,

John  R. M yer 
1515 Healey Building 
57 Forsyth Street, N.W. 
Atlanta, Georgia 30303

Robert A. M urphy 
W illiam  E. Caldwell 
N orman J. Ch a ch kin  

Law yers ’ Committee for 
Civil Rights U nder La w  

733 15th Street, N.W. 
Washington, D.C. 20005

Attorneys for Appellee