Dougherty County, GA Board of Education v. White Motion to Affirm
Public Court Documents
October 14, 1977

Cite this item
-
Brief Collection, LDF Court Filings. Dougherty County, GA Board of Education v. White Motion to Affirm, 1977. d0840b19-b09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5a0025f6-bd3f-4a72-a0f5-d8eec391ed37/dougherty-county-ga-board-of-education-v-white-motion-to-affirm. Accessed July 09, 2025.
Copied!
October Term , 1977 No. 77-120 Dougherty County, Georgia Board of Education, R. H. W arren, Chairman, Dougherty County Board of Education; F ranklin U. Cross, J. P. Cheevers, Harvey Cohen, Morgan Murphy, Chuck Nesbitt, Felix Marbry, Jr., Members, Dougherty County Board of Education; Paul Robertson, Superintendent, Dougherty County School System, Individually and in their official capacities, versus Appellants John E. W hite, ________ Appellee Appeal from a Three-Judge Court in the United States District Court for the Middle District of Georgia, Albany Division MOTION TO AFFIRM John R. Myer 1515 Healey Building 57 Forsyth Street Atlanta, Georgia 30303 Attorney for Appellee W il so n - Epes Prin tin g C o . , i n c . - Re 7 - 6 0 0 2 - W a s h INGTON, D . c . 2 0 0 0 1 In The §«pmtn> (tail at % Mmtpfc October Term, 1977 No. 77-120 Dougherty County, Georgia Board of Education, R, H. Warren, Chairman, Dougherty County Board of Education; Franklin U. Cross, J. P. Cheevers, Harvey Cohen, Morgan Murphy, Chuck Nesbitt, Felix Marbry, Jr., Members, Dougherty County Board of Education; Paul Robertson, Superintendent, Dougherty County School System, Individually and in their official capacities, Appellants versus John E. W hite, Appellee Appeal from a Three-Judge Court in the United States District Court for the Middle District of Georgia, Albany Division MOTION TO AFFIRM Appellee, pursuant to Rule 16 of the Rules of the Supreme Court of the United States and the letter of the Office of the Clerk dated September 8, 1977, moves that 2 the final judgment of the district court be affirmed on the ground that the question is insubstantial and does not warrant further argument. STATEMENT This is a direct appeal from the final judgment of a three judge district court specially constituted pursuant to 42 U.S.C. § 1973c and 28 U.S.C. § 2284 entered the 28th day of April, 1977. That district court granted appellee a permanent injunction, pursuant to Section Five of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, enjoining the implementation of Rule 58 of the Board of Education of Dougherty County, Georgia, which re quired that employees offering for public elective office were required to take a leave of absence without pay during the period of their candidacy. The district court ruled that Rule 58 constituted a change in practice which required submission to the United States District Court or the United States Attorney General as required by Section Five of the Voting Rights Act. Appellee concurs with the Statement of the Case as set forth in Appellants’ Statement as To Jurisdiction. Appellee would add however that by letter dated August 26, 1976 the United States Attorney General advised Appellants that the change reflected by the adoption of Rule 58 was subject to the requirements of Section Five of the Voting Rights Act of 1965. In addition, Appellee John White alleged that he was the first Black citizen in recent history to seek election from Dougherty County to the Georgia State House of Representatives. 3 ARGUMENT THE DECISION OF THE DISTRICT COURT SHOULD BE AFFIRMED BECAUSE THE QUESTION PRE SENTED IS NOT A SUBSTANTIAL QUESTION. The three judge district court held that the State of Georgia is “ covered” by the pre-clearance requirements of Section Five of the Voting Rights Act of 1965. The court further held that Section Five, as broadly inter preted, sweeps “ over all phases of the electoral system” including any modification to the political process. The district court ruled that “ Rule 58 . . . is such a modifica tion of the political process. By imposing a financial loss on its employees who choose to become candidates, it makes it more difficult for them to participate in the democratic process and, consequently, restricts the field from which the voters may select their representatives.” (Appendix, p. 7a). Since the Appellant Board of Educa tion had never submitted the change reflected in Rule 58 to either the United States District Court for the District of Columbia or the United States Attorney Gen eral, the enforcement and implementation of Rule 58 was in violation of Section Five of the Voting Rights Act of 1965. The result reached by the district court is controlled by the broad interpretation of the coverage of Section Five given that section by this Court in Allen v. Board of Elections, 393 U.S. 544 (1969) ; Perkins V. Matthews, 400 U.S. 379 (1971); and Georgia v. United States, 411 U.S. 526 (1973). The decision of the district court be low did not of course rule that Rule 58 did in fact dis criminate. That decision is, in the first instance, left to the United States District Court for the District of Columbia or the United States Attorney General. The decision of the district court was limited to the question of whether this change was subject to the pre-clearance provisions of Section Five. 4 Finally, although not raised directly by the Appellants, the question of whether an entity such as the Board of Education, which does not register electors, is covered by Section Five is before this Court in United States of America v. Board of Commissioners of Sheffield, Ala bama, No. 76-1662, probable jurisdiction noted June 27, 1977. On this question, Appellee incorporates herein by reference the Brief of the United States of America filed in that appeal. CONCLUSION For the foregoing reasons it is respectfully submitted that the Appellees have presented no substantial ques tion for the decision of this Court, and that the judg ment and decree of the district court should be affirmed. Respectfully submitted, John R. Myer 1515 Healey Building- 57 Forsyth Street Atlanta, Georgia 30303 Attorney for Appellee CERTIFICATE OF SERVICE I hereby certify that the foregoing motion to affirm has been served upon Jesse W. Walters, Esquire, Post Office Box 527, Albany, Georgia 31702, counsel of record for appellants by mailing a copy of said motion to him, first class postage prepaid, addressed as above. This 14th day of October, 1977. Elizabeth R. Rindskopp Attorney for Appellant JOHN R. MYER THOMAS A. BOWMAN ROBERT H. STROUP ISIS HEALEY BUILDING 57 FORSYTH ST., N.W. ATLANTA. GEORGIA 30303 GARY FLACK ATTORNEYS AT LAW October 24, 1977 Charles Stephen Ralston, Esq. Suite 2030 10 Columbus Circle New York, New York 10019 Re: White v, Dougherty County Dear Steve: I enclose for your information a copy of the School Board's Section 5 Appeal as well as our Motion to Affirm, which the Court ordered us to file. My best hunch is that the Court will hold the Dougherty County case until it disposes of Sheffield. Even if Justice wins Sheffield, this case poses the next (and most difficult) question: Does a school board's "employment policy" require Section 5 approval? Very truly yours, JRM/1 E n d s .