Brief of Respondents in Opposition

    I
CHAMBERS, FERGUSN, WATT, WALLAS, ADKTNS & FULLER. p.A

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JC'I{A11{AII' WALJI'
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.CBC.'At*Y

SUITE 7T EAET INDEPENDCI\'CE PIJiIA
, 95T IIOUTH INDEPEI{DEI.{CE BC'UI-EI/ARO

I CHARLOTTE NORTH CAROLTNA 2A2O2
' ra-il'.oNf {?o4, 37!.r4rr

October 29, 1981

CIerk
United State Dlstrict Court
Eastern District of North Carolina
Ralelgh Dlvislon
Raleigh, North Carolina

Re: gingles, et- aI . , v. Ed.misten, et aI .
Civil No. 81-8O3-CrV-S

Dear Sir:

Enclosed for flling is plaintiffs Response to
defendants' Motion to Dismlss. Thanks.

Yours tru1y,

-\t-,... lvgJ2',-.
-1\fFnes c. Fu1ler, JF.

JCF: j j

Enclosure



t

IN TIIE UNITED STATES DISTRICT COURT

F'OR THE EAS.EERN DISTRICT OF NORTH CAROLINA

RAI.EIGE DIVISION

RALPH GINGLES, Et d1., 
)

Plaintiffs. 
)

v.)

RUFUS EDMrsrEN,'in his capacity , "ivil 
Action

as the Attorney General of North t-{ No. 81-803-CIv-5Carolina, et a1., 
)

Defendants. 
)

PI,AINTIFFS I RESPONSE TO DEFENDANTS I

MEMORANDUI4 IN SUPPORT OF SUGGESTION
OF MOOTNESS AI{D MOTION TO DISIVIISS

onoctober7,1981,defendantsfi1edintheinstant

aition a motion to dj.smiss and a suggestion of mootness.

The motion to d,ismiss and the suggestion of mootness were

ad.dressed to the first, fifth, and seventh claims for relief

stated, in the complaint insofar as those claims are founded

upon 55 of the Voting Rights Act of 1965r €ts amended, 42 U.S.C.

S 1973c.

The first claim for relief stated in the complaint alleges

a violation of 55 of the Voting Rights of 1965 arising out of

defendants' failure, with respect to cor:nties of North Carolina

covered by 55 of the Voting Rights Act to: submit fOr approval to ttre

Attorney General of the United, States or to the United States

District Court for the District of Colrrmbia, certain amendments

made by the State of North CaroU.na in L967 to Art. II,

SS3 (3) , 5 (3) to its Constitution. The plaintj.ffs' first claj:n

alleges specifically that the defendants herein "continue to



enact apportionment plans and to cond,uct and supexvise

elections for the North Carolina House of Representatives

"na tn. North Carolina Senate in accordance with Article
!1, SS3(3) and 5(3) of the North CaroLina Constitution."

Plaintiffs' fifth clajm for relief alleges that the

Staters apportionment in 1981 of the North Carolina General

Assembly has the purpose and, effect of diluting the vote of
black citizens. Plai-ntiffs claim that this action constitues

a violation of 52, and 55 of the Voting Rights Act, 42 U..S.C.

SS1973, L973c. Plaintiffs' seventh claim is that the State's
1981 apportionment of its election d.istricts for election to
the Eouse of Representatives of the United, States Congress has

the purpose and, effect of diluting the voti.ng strength of black

citizens. The seventh claim alreged theit the apportionment

violated. 52 and 55 of the Voting Rights Act of 1965 , 42 U.S.C.

SS1973, 1973c.

In their motion and, suggestion of mootness, d,efend,ants

state, with respect to the L967 amendments to the State

constitution, that, the "state chooses not to contest praintiffs
contention that these provisions should have been submitted.. "

Rather, they clai:n in the motion that "ful1 and, complete in-
formation regarding the L967 amendments has now been submitted

to the Attorney General of the united states." This alregation
is supported by an affidavit by Alex K. Brock, Executive

SecretarT-Director of ttre defend,ant State Board of Elections,
and, an accompanying letter, showing that the Stater on September

22, 1981 and, after the commencement of this lawsuit, submitted

the L967 amendments to the Attorney General of the United States

for approvalr Ers required, by 55 of the Voting Rj-ghts O"r.!/

L/ By seParate letter dated September 23, 1981, Brock further sr:b-
mitted to the Attorney General of the United States for approval
all legislative enactments regarding constitutional propositions
in North Carolina since 1957. See Brock Affid.avit, Attachmentsrrr, rv.



It is also contended by defendants that the submission for

approval of the Lg67 amendments moots the first st,ated clairn

for relief.

with respect to the plaintiffs' fifth and seventtr clairns,

d,efend,ants claim that the complaint contains no allegation that

the State has faiLed -to submit the 1981 legislatj.ve and congress-

ional apportionment plans for approval to the Attorney General

of the United States. Moreover, defend,ants contend that the

proper srrbmissions for approval for these apportionment plans

have been carried. out by the State. Since the d.efendant further

argue that the jurisdiction of this Court is limited to a

determination of the necessity for preclearance of the plans

under 55 of the Voting Rights Act, they argue that their sub-

missions leave this Court with nothing to determine. Accordingly,

they pray that the fifth and. seventh claims be dismissed,.

For the reasons stated below, plaintiffs oppose the motionr

and, the accompanying suggestion of mootrregs'and' req.uest that they

be d,enied.

ARGUMENT

I

PI,AINTTTFS ' 
. 
FIRST CLAIM FOR

RELIEF IS NOT MOOT AND SHOULD
NOT BE DENIED.

The central premise of defendantsr motion to d,ismiss and

suggestion of mootneess, with respect to plaintiffs' first

claim for relief as well as the fifth and, seventh claims for

relief, is that 55 of the Voting Rights Act requires only
2/

ttre submission by a covered political subdivision of "changes" -

U The Voting Rights Act, 55, requires preclearance of "any
voting qualification or prerequisite to voting, or standard,
practj.ce r or procedure with respect to votj.ng different 'f,rom
that in force or effect on November l, L964," for political
jurisd,ictions covered by the statute at that time.

-3-



made by

voting,

it,

or

in its "votingr qualification or prerequis:-te to
standard,, practice, or procedure with respect to

votj.ng." Once this is done, defendants assume, there is no

further obligation und,er 55 on the part of the covered juris-

diction and that there is no further prohibitlon by the statute
to enforcement or administratj.on of the vot,ing ,'change.,, It
is this assumption that supports defend,ants' second, assumption

that the jurisd,iction of this court, with respect to prevention

of violations of 55, is limited to a determination of whether

the alleged voting change must be precleared. rf either of
the assumptions faili, then defendants' entire argument, and

with it, the motion to d,ismiss and the suggestion of mootness,

falIs to the gror:nd,. Both assumptions, however, are unsupported,

and, without basis in law or fact.
The evil agai-nst which 55 was directed is enforcement

or administration of changes in voting practices, proceedures,

qualificationsr o! prerequisites, by covered jurisd,ictions,

which have the purpose or effect of ',d,enying or abridging the

the right to vote on accor:nt of race or color.,' This is the

end. Preclearance, i.e., approval, by the Attorney Generar or
the United States District Court for the Distri-ct of Coh:mbia

is the means chosen by congress to effectuate that end. sub-

rnission by the covered.jurisdiction of its voting changes

is itserf merely a means for guaranteeing ttrat the Attorney
C'eneral or the District Court in the District of Columbia will
have the opportr:nity to insure that voting changes by the covered,

jurisdiction will not be,enforced or administered if their
purpose or effect is to abridge or deny the right to vote on

account of race or color.
The covered, jurisd,iction's obrigation to submit proposed,

voting changes for approval i:trerefore, while essential, is thus

not the heart of 55. Rather, the focus of the statute is the

preventj.on of the enforcement or the administration of the

-4-



proposed voting changes absent, approval as specified by 55.

rt is the duty of federar courts to uphold. the statutory pur-
pose. See, e.g., iludson Dist,ributors, fnc. v. Eli Li1ly c Co.,

377 U.S. 385, 395 (1964); E.r.C. v. Fred, Meyer, Inc., 390 U.S.

34L,349 (1958)

Onli recently, a three-judge district court in New york,

in an action to prevent New York City from cond.uctj.ng elections
to the city cor:nciI, a locar legisrative bod,y, pursuant to an

apportionment plan which had not been precleared, puisuant to
55, noted, that:

Section 5 of the Act (voting Rights Act
of 1955) prohibits any State or political
subd,ivision subject to Section 5 of the
Act from enforcing any change in voting
qualifications, prerequisites, practj-ces,
procedures or standards unless it has either(1) obtained a declaratory judgrment from
the United, States District Court for the' District of Columbia that the change ,,does
not have the purpose and will not have the
effect of denyir,rg or abridging the right,
to vote on account of race, cotror or (member-
ship in a language minority) , I or (2) sr:b-
mitted. the proposed, ehange to the Attorney
General of the United States 'and the Attorney
General has not j-nterposed an objecti.on
within sixty days after such submj-ssion, or
upon good cause shown, to facilitate an ex-
pedited approval within sixty d,ays after
such submission, the Attorney General has
affirmatively indicated that such objection
will not be made.

Herron v. Kochr _ F. Supp

(S.D. N.Y.), page 4 of SIip Sheet opinion (attached).

It should be noted, that d,efendants, in their memorand,um

supporE,ing the moticn to d.ismiss and, the accompanying suggestion

of mootness, as well as in the affid,avit by Alex K. Brock, do

not allege or swear (1) that the Attorney General has approved

the submitted. voting changes or (2) that no objection has been

i,:rterposed by the Attorney General within sixty (60) days of
such 

-sr:bmission, 
or (3) that the Attorney General has affj.rm-

ativery indicated that no objection will be ^nade to the voting
changes submitted. See, also q4a!-q'States v. Board of Supervisors,

,t
, 81 Civ. 1955, Sept. 8, 1981



429 u.s. 642, 645 (L977), where the supreme court stated,:

Attempts to enforce changes that have
not been subjected to 55 scrutiny may
be enj oined by any three-j ud.ge d,istirct
court in a suit brought by a voter(citing Al1en v. Stat€ Board of Elections.
393 u.s.

The three-jud,ge district court,s whj.ch have been convened

to hear challenges to the validity of attempts to enforce votJ.ng

changes which have not been approved pursuant to g5 have ex-
ercised their power to enjoin enforcement and, administration
of the voting changes pending a dete:mination by the Attorney
General. rn lreggins v. citv of Da11as, 469 r. supp. 73g (N.D.

Tex. L979), the three-judge court held, that it was "eminently
more equitable to all concerned to deray the election rather
than to allow an election i.n direct contravention of the Voting
Rights Act. " 469 F. supp. at 742-43. see, arso, Beer v. united
States, 374 F. Supp. 357, 352 (O. D. C. L974) i Matthews v.
Leflore countv Board of Erection conunissioners, 4so l'. supp.

765,768 (N.D. Mi11. 1978)i white v. Doughertv gountv Board, of
Ed,ucation, 431 F. Supp. 919 , 920 (M.D. Ga. Lg77) .

The supreme court's interpretation of s5 of the voting
Rj-ghts Act of 1955 authorizes the courts to exercise jurisdiction,
wittr respect to s5 claims in the following three instances:
(1) actions to restrain "enforcement, pending the state's sub-

mission of the regislation pursuant to 55, " A1len v. state Board

of Elections, supra, 393 U.S. at 555; (2) actions to enjoin
enforcement where the Attorney General has ouiectea to the pro-
posed changes, Itort v. city of Richmond, 406 u.s. 903 (L972) i
and (3) act,ions to enjoin enforcement of sr:bmitted voting changes

where the time period for the Attorney General to act has not
expired.. See United States v. Board of Super,,risors, *EE,
429 U.S. 615-647. See, a1so, Herron v. Koch, g.gpg.

The ahove cases are appricabre to the instant action.
They show that tlrse is no merit either in defendants' motion

to dismiss or its suggestion of mootness. praintiffst first

-5-



claim for relief arleges that " (d) efendants contj.nue to enact

apportionment plans and to cond.uct and supervise. election
in accordance with Article II, SS3(3) and 5(3) of the North

Carolina Constitution. "

Defendants, in their motion papers and affidavits, do

not controvert plaintiffsr averment that they are presently

enforcing and adninistering these constitutional provisions

without approval pursuant to 55. Nor couId defendants credibly
make such a denial. Accord.ingly, praintiffst first craim for
relief is not moot and should, not be dismissed. I,loreover, the

Supreme Court cases cited, herein clearly show that the district
court has power to enjoin the continued enforcement and, imple-

mentation of the Lg67 amendments until such time as they are

approved by the Attorney Generar or the Attorney General has

failed to interpose. a timely objection.
II

PLAINTIFFS I FTFTH A}ID SEiTENTH CI,AIMS ARE NOT MOOT

The considerations outlj.ned above with respect to defendants'

challenge to praintiffs' fjrst claim for relief are equally
applicable to defendants' challenge to the fifth and seventh

claj.ms for relief stated, in the complaint. Defendants do not.

allege that there is no reasonable basis to assume that it
wou1d not enforce and administer the 1981 apportionment changes

in the absence of the necessara' approval by the Attorney General

or failure- by the Attorney General to timely object. The history
of defendants' failures to submit its constitutional changes

in voting proceduresr ES well as other voting changes, t'o the
1/Attorney General for approval demonstrates that there is a

1/ On page 3 of its memorandum to d,ismiss defendants state
that "a1l legislatj.'le enactments regarding constitutional
propositj.ons in North Carclina since L967" were submitted for
approval to the Attorney General for the first time on September
24, 1981, following the commencement of this acti.on. See, aIso,
Brock affid,avit, Attachment III.

-7-



As the Supreme Court has noted in numerous cases,

"voluntary cessation of al.1eged1y i11ega1 conduct does

deprive the trj.bunal of power to hear and, determine the

i.e., does not make the case moot. " United States v.

not

case,

w. T.

Grant Co., 345 U.S. 629, 632 (1953). This rule has been

applied by the Supreme Court, in cases, such as here, where the

issues to be decided are "capable of repet:-tion, yet evading

review, " Dr.um v. Blumstein, 405 U.S. 330, 333, n. 2 (L972) .

See, also, S'outhern Pacj.fic TErminal Co. v. ICC, 2L9 U.S.

498 (1911) Moore v. Ogilvie, 394 U.S. 814 (1969); or where

there is a basis for belj.eving that "the defendant . could,

be expected again to act contrarT to the rights asserted by

the particular named, plaintiffs involved, ," Sosna v.

Iowa, 419- U.S. 393, 399 (1975); or where "a public interest

in having the legality of the practices settled, militates

against a mootness conclusion. " .,

supra, 345 U.S. at 633. See also, ,

410 U.S. 742, 756, n. 5 (1973).

The consistent failure of defendants to submit applicable

voting changes for approval to the Attorney Generalr BS docu-

mented by Brock's affid,avJ.t,, Attachment III, the public interest

in settling the legality of the defendants' compliance with

55, and recognition that the issues raised herein are capable

of repetition if review is evad,ed nolr, demonstrate conclusively

that plaintiffsr claims are not moot and, should not be dismissed.

Moreover, plainiffs' entitlement to attorneyrs fees for its

actions in compelling defendant to make the 55 submissj.ons also

"militates against a mootness conclusion. "

-8-



For the reasons stated

be denied and the suggestlon

Dated, October 29, 1981

CONCLUSION

above, the motion to dimsiss should

of mootness should be rejected.

Respectfully submitted,

Chambers, Ferguson, Watt, Wallas,
Adklns E Fuller, P.A.
951 South fndependence Boulevard
Charlotte, North Carolina Zg2Oz

- Tel. (701) 375-8461

JACK GREENBERG
JAIVTES M. NABRIT, III
NAPOLEON B. WTLLIAIVIS , JR.

1O Columbus Circle
. New York, New York 10019
Tel. (2t2) 586-8397

Attorneys for Plaintiffs

c
LIE J. WINNER

9



CERTIFICATE OF SERVTCE

I, James C. Ful1er, Jr., an attorney duly llcensed to
practlce in the Eastern.Dlstrict of North carolina, hereby

certify that r have thts day served a copy of the within and

foregolng Praintiffs' Response To Defendants' Memorand,um rn

support of Susse""::r:: 
::T::r:" 

Motion ro Dlsmlss upon

Attorney General of the State of
North Carollna

P.O.'Box 629
Ralelgh, North Carollna 27602

by depositlng the same in the unlted states maiI, wlth adeguate

postage af,flxed thereon, addressed to sald counsel at said
address.

October 29, 1981 S C. FULLER,



,,1gl5:-c,t' i...., ,/ D- 't)rXr.
/''>' E|LED 'r)
I ^-^i srP 81961i.. ?E nrn.

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UNITED STATES DISTR.ICT COURT

FOR THE EASTEIII{ DISTRICT OF NEW YORI(

MELVI LLE
similarlY

Plaintiff,

V.

KOCH, €t a1.,

Defendants.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

CARL ANDREWS, €t tsi-,

PIain.t'iffs,

v.

EU^IARD I. KOCH, €t dI.,

':l::::l:l:---- -

UNITED STATES DISTRICT COURT

FOR THE SOUTHEP.N DISTRICT OF NEW YORK

GILBERTO GEREI.IA-VALENTIN, and on
behalf of Puerto Rican voters
similarly situated,

Plaintiff,

v.

EU^]ARD I. KOCH, €t dI. ,

Defendants.

Argued:

IiEP.R.ON, and all Perscns
situated,

81 Civ. 1955

ED^IARD I.

September 8 | i98I

81 Civ. L542

81 Civ. 5468

Decided: SePtember 8, I981
J

'iout 
woorEl.l, EsQ. (counser to tJew

York State B1ack & Puerto Rican
r,.! i=Iative Caucus ) , Brook1Yn, 

-tlei York , for plaint'i f f l6eIvi]le
He rron.



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KII'I HOYT SPERDUTO, ESQ. (LCBOEUf ,

Lamb, LeibY & MacRae), New York'
ll;; icrx, ?or Plainciffs in Andrews'
et aI. v. Koch, eE aI'

GABE KAIMOVIITz' ESQ' , (Puerto Rican'-iigil-o"fen"" and Education Fund'
tril. ), New York, tlew York, for
pf"iniif f Gerena-valentin'

PATRICK F . X. MULHEART{, ESQ., ( NCW- -York 
CitY'Law DePt' ) r New York'

llew yorXl for defendants ot'her t'han'
StanleY Friedman.

PAUL A. VICTOR, ESQ', New York' New

York, for defendant StanleY
Fr iedman.

PAUL I{ANCOCK, ESQ. (CiviI Rights- Division, bePartrnent of Justice ''John S. t'tartinl Jt', U'S' Attorney'
Southern District of New York, of
counsel) , Washington, D'C' r. for t'he

United States as amicus curiae'



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Be f ore KEAP.SE, .Circuit {udg9, .and Neaher
and ouffY@

}IEMORANDUM AND ORDER

Thisthree-judgedistrict'court,hasbeenconvened

pursuant to 28 U.S.C. S 2284 to hear claims in three cases,

consolidated for this PurPoser that certain plans of the cit'y

of t{ew York (,,.city,') wit,h resPect Eo its primary and general

elections scheduled for september 10 and November 2, 1981'

respectively, violate s 5 of the voting Rights Act of 1965, 65

amended (hereaf ter "Voting Rights Acti' or the trAct" ), 42

t/
U.S.C. S 1973c (1975)'= Plaintiffs have moved for a

preliminary injunction prohibiting the City' its officials'

and its Board of ELections from holding these elections as

planned because the city has not obcained the necessary

federal approval of its changes in voting standards, Practices

and procedures.

motions.

For the reasons set forth belowr w€ grant the

BACKGROUND

A. Reguirement's oi the Voting Rights Ac"

Congress'SPurPoseinenactingtheVotingRightsAcc

was to rid che country of racial discrimination in voting'

A.Llen v. srate Board gf Elections, 393 U.S. 544, 548 (1969);

South Carolina v. Kal'-zenb1ch, 363 U'S' 3OI' 308 (1955)' In

substance, ss 2 and 4(f )(2) of the Act Prohibit any stat'e or

political subdivision

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Act

from imposing or applying any qualificat'ions or Prerequisites

for voting, or- practices, proceduresr oE standards with

respect to voting, that have the PurPose or will have the'

ef fect of discrimlnating on ts-he basis of race, color r ot

membership in a language minority grouP. 42 U.S.C. SS tg73,
2/

Ie73b(f)(2).- In practice, S 5 of the Act Prohibits any

State or political subdivision subject to S 5 of the

from enforcing any change in voting qualifications,

prerequisites, Practices, procedureS Or StandardS unless it

has either (r.) obtained a declaratory judgment from the Unieeo

States District Court for the District of Columbia that the

change "does not have the PurPose and will not have'the effect

of denying or abridging the righe to vote on account of

raceIr] colorr oE [membership in a language minoricylr" or (2',)

suOmitted the. proposed change to the ACtorney General of the

united scates "and the Attorney General has not interposed an

object.ion within sixty days after such submissi.on, or uPon

good cause shown, to facilitate an expedited approval within

sixty oays after such submission, the Attorney General has

affirmatively indicated that such objection wilI not be made'"
4/

28 U.S.C. S 1973c.-

B. TFe Citvrs PIan

Pursuant to the Cityts Charter, the Ci.ty's Council

Districting Commission (the "Commissionn ) is required "to

provide a draft plan for dividing the CiCy into council

districts . . . at the first regular election of counciL

nembers after each federa] census . . o Following receipt

of the resulrs of the 1980 census on April 1, 1981, the

Commission presented such a draft plan tO ehe t{ew York City

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Council.onl"1e.y29,}9BIt'heCounciladoptedtheproposed
plan;andonJune5,defendantMayorEciwardl.Kochsignedthe
bill,.LocalLaw4T,intolaw.Priortotheadopt'ionofLocar
LawAT,t,heCityhad33councilmanicdistricts,eachentitled
toe}ectasingleCouncilnan,inarlditioneachofthefive5/
boroughs of the Ciey=' was entitled to elect two

CounciLmen on an at-Iarge basis'

Local Law 4'T did not' disturb the at'-large

councilmanicseats'Itdid'however'increasethenumberof
districtcouncilmanicSeat,sfrom33to35,.andit.redrew
districtlines.Inaddition,theplanadoptedbytheCity

.changesaPProximate}y3ooofthe3oooe].ectiondistrictsin

Bronx, Kings, and New York counties' and hence relocates

certain Polling Places'

TheCityconcedesthatthesechangesarewithi'ntheg/
coverage 

. 
of the Vot'ing Rights Act'- that' the counties

Bronx, Kings, and New York are political subdivisions sublect

!/ and |-hat the City was required t'o obtain

prec}earanc'efroratheDistrictCourtfortheDistrictof
Columbiaor!romtheAt',.orne!/General:

. There is no dispute arilong t'he Parties'
that the ,,change,, or new councilmanic redis-
tiicting plan i= "covered" by S 5 of :1"
Vot-ingRightsActandt'hus'requiredE'obepre-
.i"it6a o6fore imPlementat'ion

(Defendantst rr'Emorandum of Law at 13' ) i{or does the City

disputethatit'isnocent,it}edtoenforcethesechangesin
' the absence of Preclearance:

tllf a change occurred and
then it- is unlawful and may

was not Precleared,
not be enfcrced'

( rd.

was signed

proPosed 'c
8/

General r-

)

On June L2, 198I, within oni week after Local Law 47

into law, the Cit'y submitted' by hand delivery' its

hanges in councilmanic districts t'o the Attorney

and requested an expedited review of ics

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subnrission, stating that the first date set to c.irculate

petitionswithrespectt'ocouncil'manicseats\^'asJunel5'

198l.OnAugust4'198I':n"Depart-:nentofJust'icewrot'er'o

theCity,statingthatafteracarefulexaltlinationofehe

City's initiaL submission, it had been determined that t'he

information sent' was

insufficienttoenablet'he'\ttorneyGeneral
to 'decermine that the proposed changes do not

havethepu'po="-unjwill-nothavet'heeffect'' of denying or abridging t'he right !o vote on

account of race' coior or membership in a

language minoritY grouP'

(Letterdat'edAugust4'1981'fromWm'BradfordReynolds'
i

Assistant et iorney General, Civil Rights Division, Departnent

ofJusticertoFabianparominorEsq.rcounsertol'lewYorkciey

Counci] Redistricting Commission' ) The let'ter sPecified eight'

types of infornration t'o be Provided' including election

resu}tsbyelectiondis.tr:.ctforcertainPaStelections,a

rnap indica"-ing .the 
election dist'ricts in relation to the

councilnanic districts as chey now exist and the proposed new

district Iines, and data supporting or refut'ing the cityrs

contehtion that one reason that Ehe submitt'ed plan does not

contain addicional clistricts in which minorieies comprise a

substantia}majorityofthepopulacionisthattheminority

popu}at'ions are oispersed t,hroughout the City. ( Id. at l-2. )

The August 4 letter aler'-ed t'he City that the 50

dayswithinwhicht'heAttorneyGeneralcouldconsiderthe

Citytssubmissionwouldcornmenceonhisreceiptofehe

informaticn necessary for the p'roper evaruation of t'tre

submission, and thac in the absence of additional informat,ion

theAttorneyGenera}might'cbjecttot'heproposedchanges.It'

asked.theCitytonotifytheDePartmentwithintwent,yoays

whethertheCicyplannedtocomplywiththereguesc.(Id.at

3. )

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The city has inforned the Attcrney General that

wiIl comply with the requese for additicnal information'

August L4, the requested information in one of the eight

categories, Co wi.-, past elect.ion resuICs, was submitted t'O

the Attorney General. In addition, the City has Provided sorie

additional inr-ormation in Sone of the other cat'eg6ries, but:

apparently has not yet comPlet.ed its comPliance in any of the

other seven categories. The city expects to complete its

submission by SePtember 2L, 198I'

The Present Lawsuits

The first of the Present lawsuits, Herron v' Koch'

et aI., was commenced on.June L6, I98I. The plaineiff, a

black voter residing in Brook1yn, alleged that the Cityrs 
,

changes violated the Voting Rights Act. Herron quickly moved

for a preliminary injunction against implementat'ion of the

changes on the ground ehat the city had not obtained the

requisite federal approval under Che Act. the City opposed

the motion principally on the ground that it had submitted its

.changes to the AtCorney General pursuant to the Act, and thae

the 5O days wit,hin which the Attorney General could object

would expire. on August 11, 1981, PEior to the elections to be

affected. On June 17, 1981, the district court oenied

Herron'S motion for an injunction on the grouncis that it was

premature ancl that the allegations of the complaint were

conclusorY.

On August 5, 1981, Andrews, et al. v.' Koch, et al',

was coramenced by three registered voters residing in Brook1yn,

including at least one black voter and at least one vot'er of

Puert-o Rican or itispanic heritage. The Andrews plaintif f s

alleged that although the toeal population of the City had



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declinedfrom7,8g5,563ini9?Oto7'071'030in'I980'the
minority population had increased in that geriod by at least

3Igr6i6.TheychaiIengedt'he.City'scouncilmanicchanges
havingEhePurPoseandeffect'of.freezLng.'ehelgTonunrberof
rninority councilmembers whiie increasing' the number of white

councilrnembers,andallegedthattheCityhadnocobtained
prec}earanceofitschangesaSrequiredbys5ofcheAct.

Gerena-VaLentin v' Koch, et al" was commenced on September 2'

}gEl,bYaPuertoRicanvoterandincumbentCouncilmaninche
Bronx,a}}egingthattheCity'schangeshadthePurposeand
effectofdiscrtrninatingagainstPuertoRicanandother

2/
Hispanic voEers.

On August 3I, I98l' H€rron filed an amended

complaintand,al}egingthat.theCityhadnotobcainedt'he

preclearance required by s 5 of the voting Righes Act' noved

t,oenjoincheCityfromenforcingitschangesatt'heprimary

e}ectionscheduledforSeptemberl0,}981,andt'hereaf..er

untilprec}earanceisforthcom.ng:Herroncontendsthatthe

councilrnaniceiectionswillbeaffectedbytheincreaseand

redesignoft,heCouncilmanicdist'ricts,andthatalle}ections

wiLl be affected by ehe changes in election districts

Gerena-Valentin has tnoved for a similar injunction against

enforcementofthechangesatt'heprinraryandgeneral

'elections,thelatterbeingscheduledforNovembeE.3,l9S}.
The Andrews plaineiffs have joined these tnotions insofar as

they seek to enjoin the councilmanic elections but not insofar

as they seek to enjoin the elections foi other local and

CitywideofficessuchaScountydis.trictatt,orneysandMayor

of the CitY.

8-



TheCit'yoPPosesthemotionsonthegroundthatLhe

plaintiffshavenotdemonstratedthatt'heywi].Ibeirreparab}y
harrnedifthee}ectionsarepermi.etedtoprcceedaSscheduleo.
Pointing out that much time and money has been spent in

prepalationfortheprinraryelection,theCitycontentsthat
primarycandidateswi}Ibeirreparab}yharmedbythegranting

ofaninjunction..Ifpreclearanceisnotforttrcoming,the
City.argues,anewelectionwouldadequatelyprotectaffected
voters' rights

D]SCUSSION

The resPonsibility of a three-judge court con'rened under

s5oftheVotingRightsAct,isasubstantivblyrestrictedone..
Wehavenoauthoritytodeterminewhetherornottheproposed
changesareliketytohaveadiscriminatoryPurPoseoreffect
Wemustdecideon}y(1)whetherthechangeiscoveredbyS5,.
(2)iflhechangeiscovered,whetherthes5requirementswere

satisfied,and(3)iftherequirementswerenotsatisfied,what
remedyisapProPriate.UnitedStatesv.BoardofSuPervisorsof

' 429 U'S' 642' 645-47 irl97'7); Perkins

er:te Board

ffiooo u.s. 319,383-86 (1971); Al'len v' state Board

=,3s3 u.s. 544, ss5 n're' :ut.t':'i::l
Thisnarrowlyconfined'taskistoanextent'simplified

inthepresentcases,becausetheCityhasconcede.dthatits
changes are coverec by the Act, that preclearance waS required

bySsbeforethechangescouldbecomeeffective,andthatit
has not obtained. preclearance as required by s' 5' Thus we must

fashion an ' aPPropriate remedy 
; barred from

Since'section 5 provides that the City is

enforcingitschangesifitfailstoobtainoneoftheformsof
preclearance required bv that section' tn: S"::j- court has

indicatedinavarietyofcarcumstancesthatanin3ungtion
against the holding of an election is an aPproPriate remedy for

violation

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Allen v. , supra, 393 U'S'
or

at

S 5. See

555:

[e] fter provinq that the State has failed to

Submit the co\/er"4-",.."Erient for s 5 approval,

the private Part;-hil-:t::d1:s 
+-o obtain an

injunctic'nagain'stfurther"niott"nent'penCing
the State's =l-tu*i==i"" of the }egislation
Pursuant to S 5'

InGeorgiav.UnitedStates,4lIU.S.52S(1973),asuitconunenced
bytheAttorneyGeneralafterhehadrejectedtwoStatelegisla-
tiveredistrictingplanssubmittedtohim,theSupremeCourt
affirmedthedtscisionofathree-judgedistrictcourtthatthe
State should be enjoined from holding elections Pursuant to its

plans.Priortoitsowndecision,theSupremeCourthacstayed
the district court's injunction' with the consequence that

theelectionwasinfactheld'.Thisproceduralcircumstance,

however,dionotPreventtheSupremeCourtfromaffirmingthe

injunction as Proper' In HoIt v' City of Tichmond' 406 U'S'

(Lg1?),theSupremeCourtgrantedanapplicationtoenjoin

electionssci:eduledtobehe]-ddayslater,wheretheproposed

changeswereSquarelywithinthemeaingofs5andtheAttorne!,

General had' objected' See also Lrnited States v. Board of

Supervisors, 429 U'S' 542' 545 ,l-9'77)"

No nev, voting practice or procedure may be -
enforced.un}esstheState"'-political-subdivision
has succeeded in its declaratLry ju{S'menf action
ortheAttorneyGeneraihasdectinedtobbjectto
a piop"=.r ="ntili"a to him' ' Attempts to
enforce changes that have not been subjected to
s5scrutinymay..u.-"":oinedbyalythree-judge
disrric*. court i"-; ;l;-;;"og-nt by a voter, Allen
v. state Board ;i Elections '-19i u's' 544 ' 557='61

ffi
on the basis of the strong language of s 5 and the

above indi.cations from the supreme court, a number of distrj-ct

courts have granted injunctions aEainst impending elections in

cases similar to thcse presented here. E.g., Beer v' unit'ed

States, 374 F.SuPP. 351, 362 (D'D'C' I97'4) (tnree-judge court

903

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stating that ,,Is]ection 5 itself enjoined any election utilizLng

the new d,istr:-ct, boundaries specified in the plan- our injunction

.merely.spelledouttheStatutoryprohibitionagainst
councilmanic erections under tlre pran. our order i:nposed no

restriction upon the election of councilmen beyond

observance oI the statutory mandate."), final judgment on merits'

374F.Supp.393lvacatedandrernanded,425U.S.130(1975);

Heqginsv.c@,469F.SupP.73g,742;43(N.D.Te-.1979)
(tnree-judge court) (it is "etninently more equitable to all

concerned to delay the election rather than to allow an election

in direct contravention of the voting Rights Act.");Mutrll"g

Leflore County Board of Election Commissioners, 450 F'SuPp' i65'

758.(N.o.[Iiss. 1978) (three-judge court) ; Ilorry Cor:nty v' United

stares, 449 F.Supp. 990, 995-g7 (D.D.C. I978) (trrree-judge court)

White v. Dougherty County Board of Education , 43I F.SuPP - 9L9,

'd, 439 U.S- 32

Ga. L974).

g2O (M.D. Ga . L977 ) (ttrree-judge court) , aff

(I978); Pitts v. Cq4er, 380 F'Supp' 4 (t'i'O'

Other courts have denied injunctions for various

redsons. In wilson v. North caroLina state Board of Elections, 3i

F.Supp. Lzgg (M.D.N.c. 1970) (three-judge court), for example' t:'

court recognized that the proper remedy was an injunction against'

the enforcement of the unapproved changes, but declined to enjoin

the next election oue eo its "proximity". In u.s.. v. countv

Commission, Hale County, Alabama , 425 F. SuPp. 433 (S. D. A1a' L976''

(three-judge court), aff'd mem., 430 u.s. 924 (1977), the court

preferred to permit the challenged election to proceed, pending

preclearance. If federal approval could not be obt'ained, a new

election was to be held promptly, following the o1d procedures'

Three eleitions had already been held under the challenged change:

so an injunction would nerely have aLLowed incumbents to remain i:

of f ice who had thernselves been improperly elected.

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On the basis of all the circumstances of the present

casesr w€ conclude that an injunction prohibitirgthe City fron

holding primary or general elections until such time as the

Attorney General has acted or declined to act on the City's

submission pursuant to S 5 (or'untiI some other preclearance

envisioned by S 5 is obtained) is the most aPPropriate way to

give effect Lo S 5. Among the principal factors that lead us

this conclusion are the facts that the plaintiffs ha're done al1

in their power to Preserve their rights under the Act, and tha:

the City has not done all it could to comply with the Act.
l'

. The plaintiffs have expeditiously done all that is

required of them to seek adequate protection of their rights'

Herron instituted suit within two weeks of the Mayor's signing

Loca1 Law 47, and immediately sought to enjoin the Cityrs use c

the changes. This suit was brought on the first day councilna:-

petitions could be fi1ed, arguably before any candidate wouli'

have expended ]a.rge amounts of money and enelgy in seeking of'=':

and apparently before the City had expanded much of the needei

ef fort to imp)-anent the planned changes.19/ The injunction

requested was denied on the ground that, dS the City argued, -;-'

motion was premature because the City had reguested precl.earaa'

of the changes from the Attorney General.

. But the city has not obtained the preclearance beceu=

its subrnission to the Attorney General was inadequate to Per:n:-:

that official to determine whether or not the City's plan had

a .discriminatory. PurPose or will have a discriminatorlz ef f ect '

Althcugh the city attempts to avoid resPonsibility for the iel-=

in action by the Attorney General, w€ are unPersuaded that, v::

a-vis the plaintif f s, .the city should not bear the complete

responsibility for its noncompliance with S 5. For example, "---

City states that.before del-ivering its submission to the Depar'

ment of Justice it telephoneC to inquire whether its proposeC

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submission would be adequate and was advised, both in that call

and upon delivery, that the Department would require nothing

more. Yet S 51.26 of the Regulations prcmulgated by the Attorn.

General plainly state that revievr will be facilitated if certai:

information, not required by S 5I.25, is provided by the submitt

ing party- 46 Fed. Reg. 876 (1981). Four of the eight categor:

of additional information sought 
.by 

the Attorney General on

August 4, 1981, were obviously covered by this reguiation, of

which the City was aware. Knowing that this infor:nation would

facilitate action, the City consciously elected not to provide -

i
because it was not technically reguired.. Thus, while we do not

intend to suggest that the City proceeded in bad faith, w€ find

that it consciously chose a course of action that was not desig;

to facilitate a swift and complete review by the Attorney Gener:

Further, it is scarcely an answer that the Attorney General ask:

for this information only after receiving statements irom a

number of minority groups opposing the City's plan: such oPPos:

tion shou.ld certainly have been anticipated by the Citl', which

had itself received strenuous opposition from such grouPs in

the course of considering rvhat changes to adopt. Since the

Act was designed to place on the submitLing party not only the

burden of proving nondiscriminatj-on with respect to its voting

plans, see Georgia v. United States, suPra, 411 q.S. at 538, but

also the burden of any de1a1's in the Process

see Perkins v. I'latthews, suPra, 400 U.S. at 396, we

believe the City should bear the consequences of its decision nc'

to submit to the Attorney General serreral types o=, data that it

kn'ew woulC f acilitat.e his decision.

The City argues that we should deny the plaintiff

injunctive relief now, with the thought that. if the Attorney

General eventually objects to the City's changes, a new election

could be required. We do nct consider the ordering of a new

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election to be the most appropriate remedy in the circumstances

of these cases, nor to be an adequat,e renedy here f or t-.he

violati.on, assumed arguendo, of the plaintiffs' rights to vote

free from discrimination. The right to vote is uniqub and

should not be diluted either by forbidden acts or by the

normal attrition of voter.turn-out at a re-held election. Ll/

Finallyr w€ are unpersuaded, by the city,s current aig';

ment that injunctive relief should be denied at this stage

because the date of the primary election is but two <lays a\.ray,

and that ih the tjme since Herronf s first motion, candidates ani

the city have spent irrecoverable time and money preparing for
the elections. If Herron's earlier motion was premature, and we

agree that an injunction was properly denied on that basis, ani

the present motion is to be denied on the ground that in the

interval energies and monies have been expended that would make

an injunction work hardship on the City and the candidates r w€

are at a loss to guess at what time the voters could sensibly
hope to enjoin a City, that has not complied with S 1 from enforc-

ing its changes

fn shortr w€ believe that to allow the City to go

forward. with the planned elections with the implementation of
its changes and without preclearance in a circumstance where the

applicabrlity of S 5 is conceded, and where a determination by

the Attorney General pursuant to S 5 has been impeded by the

City's failure to provide adequate i-nformation, would effectivel''
nullify the intended thrust of the section. n?e will not willing-
1y invite politicar entities subject to S 5 to avoid its impact

so easily

. The defendants are therefore enjoined from conducting

dny election in which the city's changes of the'number and

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boundaries o.f council-manic districts and the changes of election

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districts V/ are enf orced, until the provisions of S 5 of the

Voting Rights Act have'been complied with'

SO ORDERED.

15

rt is

Circuit Judge



r,

FOOTNOTES

Section 5 provides that "[a]ny action" thereunder

be heard by a three-judge district ccurt in'accordance

28 U.S.C. S 2284.

Section 2 of the Act, 42 U.S.C. S 1973, provides:

No voting quaiification or prerequ!site to
roting, or stan<Jard. practice. or procedure shalt
be imposed or apFlied b]' an-r' Siai.e or political
subdivision to den) or abridge the right of an!.
citizen of the Uniied. States to voie on account
of race or coloi-. or in contrave;ri.ion of Lhe guar-
antees set forth in section 4 (f) (2).

Section 4(f) of the Act,

in part:

42 U.S.C. S 1973b(f ),

L/
shal 1

with

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provides,

rf l ']:he- (',rt,-g,,'s. fitr,ls tlr:r( rntitrg dis' r'ir'rir:utintr. :rg:rirlst
citizens of langrrlg* nrinorities is porr':rsi re:trrd ttlliott:rl in scl'J'r'
.Srr,.'h nrinoritt i'itii,',ts 't1r. frorl ettr'ltrrtttrrr'ltl-- irr rrlriclr lllr','l,rtttitl;tnl
trtng,t,rg. is oti,,'r tlrrrr I'lrrgli'lr- In;rrl'liriorr tlre.r'Irtle betlr der:iod
ccr'*! Jd,,,',rli611:rl r,l,t,,,r'trrtritit': lry St:rte "trd lot:rl goyer;l,llcirts.
,.,:irllilr* i" o,,f,.n n'1,;',iliri,l*,iir,l iirrrrin,,ilg iliirerirc.r'iri rl,e Englisl,
lat,gI,,,,g;.'l'!1s ('or:grrs: fttttlrrt' 6lrds tl,ni. rvlrtre .ii,rie airo' local
ofijiials'cor,ducr e]*,'ii,,ns orrlt in En:llish. l:rngt;:,g.r triinorit v citizens
el'e r'.tcl,drd flonr p;rrri< iyraring irr tlriel,'ctor',,i ;'ro"e;... Itr tnsn.r'ar":rs
of the counlrv. thi-. ercl,ision'is:tgglnt';tle<l l,rj:rt'ts of plr-rsical. eco'
nontic. nnd rrolitie:rl irrtirtrid;rtion. Tite ('orr{r'r:i rler'lures tlrlt. in order
lo enforce tl,e grrarnnt*(s (,f tlre forrrteentli and fifte.'ntlt :ttrrettdntrnts
trr the I'nired'states Constitution. it is ncii':.i:tr-r'to elinlit::rte such
ilisliiniin,rtion l,.t pr ol,il,itinc Enelislr-onl-r' e!ections. rnd b.r' prercrib-
ine otl,er rtmediul derices.:'{!1 -xn voring qrr:rlificntiorr o. pret'rqrrisile io 'oting. 

or stnrrd:rrd'
or,rctice. o, n,n,'*.li,.e s)rall be inipns"d'or applied b-rr rnv Stnte or
irol:ii,':rl sul,Jirisiori lo denv or al,.i<jg* r'l,e rigiit of cn-v citiztn of t)re

['";i"a Sl,,,t.'t,,..,i* l*.]atisc ]re is a-nretr:l,cr (,f 0 lanSrr'rge minorit-r'
groul,.

26'

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3/ A State or political subdivision becomes subject 'ic

,S 5 of the Act when (1) the Attorney General deternines'th.a"'

the jurisdiction maintained any of a ]ist of requirements

(specified in S 4(c) of the Act.) a.s a Prerequisite for voting

or registration for voting on November 1, 1954, 1958, or 1972;

and (21 the Director of the Cehsus determines that fewer than

50t of the persons of voting age residing in lhe jurisdiction

!,rere registered on the corresPonding dater oE voted in the

presidential election of the corresPonding month. Such
l'

determinations become effective uPon'publication in the

Federal Register. Voting Rights Act, S 4(b), 42 U'S'C' S 
.

1973b(b)

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\\'heneler a Siate or poli'.ical subCivision
* ith respect to * hich the prohibitions set fol!h
in.scction - 4 tal
t c r rn i n a ! i o ns 1.a c e. u. n d e r. t hj_tg*=Jg-+ !..e J+gsecLio6 4 r(b) lfti;-ift{::l}T
enact or seek to adrninistei'an5' r'o'.ing qualifi'
cation or prereQ uisite to r, oting. or staniard.
practice. or pr'.,rcedttre ri jth respec'! to voting
diffcrcn! from that in force or effect on lior.em'
ber I. I96{. or uhenerer a Siate or political sub'
di..'ision uith respccl. to 'rhich the prohibiIions

S 19 73b (a)

u. s. c. s 1973b(b)

set forth in section - 4 tal
upon deterrninations rr,aCe unier tbe
sentence of section 4 (b)

- - ba-<ed
second

eflect shall enact or seek to aCminister an)'
voting qualifica-tion or prerequisite to voting. or
standard. pracLice. or proc('dure q'iih tespect to
voting differeat frorn tlrat in force or efiect on
No'.'ernber 1. 195t. or u hener er a S:ate or poli'.i-
cal subdirision u'ith rcspcct to uhich the prohi'
bitions set Iorth in sectlon 4 ral
b:r-<ed upon deLerminat ions mad: under the
third sentence of section 4 tUl
are in effect sha-lt enp.ct o; seek to iCminister
an)' voting quzlific;rtion or prcrequisite to
r'oting. or stanierd. prac'.ice, or pr'rcedure "\'itlt
rr.lpect Lo roting cjif ferent f rom tha'- in force o;
eifict on No'.'e.;bqr 1. 197?. such Siate cr srrbdi'
vi-.ion ma)' instituLe an action in Lhe Unitcd
Siates Disirict Court for the District of Colum'
bia for a declarator)' juds::rent that such qllali'
fication. F,rerrqu!site. sta.nizrd, praciice. or pro'
ceCure Coes not h3r e the putpose a:rd s'ill not
ha..'e the e(fecl of den-\ ing'or abricginB the
right to \.ote on account of race or color. or in
contralention of the guarantees set forth in
sect ion 4( t )( 3, , and unless enC

until the c\)urt ente:'s sucn jud!:rr,ent no pe:'son
sha-lt be cienied the riEht to !'o're ror teilure to
compll' uitlr such qualification. prei('qlrisite.
sia-ncja-rC, practice, or procedure: P;otiCiL
Thzt such qualification. prerequisite. s:anierd.
practice. or p:ocedure ma)'be enforced R'i'.hout
iuch proceedins if the qualification' prerequi'
site. sta-ndard.'practice, or proceciure hzs been
-sub.miiteci bl'the chief lesal officer or other ap'
propr;ate official ol such S;aie or subiivision to
the -{llorne-r' Cererai and the Atto,-n€}' Geier'
al h.,-s nOr. lnte:pc'-.eci an Ob.icclion Bit,'1in si\t)'
ial's alter such sub,r:llss jon, or upon good cause
shos-n. to facilitate 211 e>:peCited epproraJ
r ilhin sixtl' Ca-r's af ter such sub=!ssion. the At-
tor.nei' Ge:-,eral hzs af f irr,a'rir el)' incliceted thEt
such objrc'.ion ti ii! not be r::ade. iiejlher an af-
f i:;::z-r-ii e !niica iio;: b)' the .{'.tor;rei' Gene :al
'.hzr. no ob-iecl ion s. ill be n.raCe. nor the .{tl or'
ne.r'Ge.-,eral's failure 1s 6l,ject. nor a decla:'a'
tor]' jud;n:en: en: e;ed undc'r this stction shall
bar a subseqrieni act ion to en jclia enf orcenent
of such que-lif i:zt ion. prerequisite. stanizrd.
prictice. or procedure. In the e\eni the Attor'
n:)' Ge-;:eral affir;::zti'.ell' in'.i:cates ihz-i no ob-
jer iion a'ijl be r::p.de a'iihin ihe si.rt-r"de]' p:;iod
follc,*'ing receipi of a subn:ission. the -itiornel'
Gt:rt':al L-rai'resc'tve the riSht to;eera::,!.-,e ihe
sut.'rission if acid;tional injorrns'.ion cc'rxes to
hi-. atitntion Curi::g the re;nainier of '.he si.r:1"
da]'pt'riod u.hich sould othersise rrqui;e ob-

.irclion !n acco:i;-nce riii,h this sec'.ion. An]'
ic'.ion u;rcr i tl,is src'.ior: shzll be he:ii z::d Ce'
te;n::.r'C 51'a court of tirree JUc33s iri accord'
anc: i'rih the p_ro'.'!sions-of ,-<ection ll6{ of titie

29 of '.he United Stat'es Code
and a:'ry a;:irea1 sha 11 1ie to
the SuPrere Court.

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2/Thefiveboroughs,eachofwhichisacounty,are
Bronx (Bronx county)r tsrookiyn (Kings coun+-y), lvlanhattan (llew

York County)r Queens (Queens County)' and Staten Island

(Richmond CountY).

9/Section5hasnthebroadestpossibleScope,'
applying to any enactment altering the election law in even a

544 tminor},ay.A}lenv.StateBoardofElections,393U.S.

565-67(1959).Inparticular,s5coversneworrevised
reapPortionment pIans, Ulited Jewish Organizations of

Williarnsb.urgh, Inc. v. Carey, 430 U'S' 144' 157 1L977) ' and

changes in the locations of polling places' Perkins v'

Matthews, 4OO U.S. 37g, 387 (197I) '

U In New York State, three boroughs' the Bronx'

Brooklyn, and Manhattan, are subject to the Act. 42 U.S.c.

S1973b(b),35Fed.Reg't2'354(1970)'36Fed'Reg'5'809

Inc. v. wilson, 510 F.2d 512, 515-1 6 (2d cir' 1975)' aff 'd suc

Carey, 430 U.S. I44 1L917); 46 Fed' Reg' 880 (1981)'

9-/ There aPPears to be a dispute as to whether the Ci

has submitted the changes in election districts t,o the

Attorney General for approval.. The city contends that it ha

done sor although not in its initial submission on June l.Zi

certain of the plaintiffs contend that these changes have

never been submitted. For the PurPoses of these motions we

shal] assume that the City has submitted these changeS'

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nom. united Jewish organizations of williamsburgh' Inc' v'

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2/ Gerena-Valentin also alleged other wrongs by the

city, including the rejection of certain voter petitions on

his behalf and the removal of his name from the baJ'Iot'' The

Andrels comPLaint asserts a variety o'f other claims, including

the charge that the allotment of two at-large seats to each of

theCitytsboroughswhenBrooklynhasapopulationof

2'r230r935 as compared with staten Island's PoPulation of

352r121, violates their constitutional rights. As a

three-judge court we are convened only to hear claims arising

under s 5 af rhe Voting Rights Act and we do not address the

various plaintiffs t other claims '

tO/ For example r w€ were inf ormed at oral argument that '.j-.

cards sent by the City to all registered voters advising them o:

their election districts and polling places were not mailei

until the end of JulY

Lt/ Nor do we find attractive the alternative suggested b1

the United States aS amicus curiae. A rePresent.t:-r. of the

Attorney General urged that we deny'an injunction against the

holding of the primary election on Sepiember I0, in hopes that

preclearance by the Attorney General will be forthcoming prior

to the general election of November 3. That representative

stated that, dssunring the City were able to complete its provis:

of the additional information requested by September 2!, the

Attorney General r'.'ould hope that he could lct within thirty da1'5

thereafter, and that it would .attempt to act in advance of the

November 3 election. Such an alternative would fare well onl1'

if the hoped-for schedule were met, and if the Attorney General

did not object to the City's plans. If an objection were forth-

coming, the right to vote in an untainted prirnary would have be=

lost or diluted, and if a new prirnary election. v(ere ordered it

could well require the postponement of the general election.

Moreover, the record in this matter of the activities of both t:

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City and the DeparEment of Justice g.ive us no Particular

confidence that.the hoped-for dates for final submission by. the

City add final decision by the.Attorney GeneraL will be met'

In f,act, even if the City comPletes its submission by SepE'ember

2I, the Attorney General is allowed until November 20 , v'el1 Pas':

the date of the generaL election, to object. The result could i

that two invalid elections were held in circumstances in which

the Act says the city could not enforce its changes.

L2/
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we recognize.that this injunction will prohibit the

Jna"*O"t 1O Primary elections for such offices as Mayor,
I,

Cdmptro1ler, District aitorneys and borough presidencies and

possibly other contests in the Bronx, Brooklyn, and Manhattan'

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