Dotson v. City of Indianola Court Opinion

    934

vi! M- (.‘id Dist. 1976), the court found no liability
" "':;,i,_..' for false imprisonment where the defend-
ii i ‘ ants “did not at any time sign a complaint
:3... l against the plaintiff, did not request the
in? 5 police officer to arrest the plaintiff, and did

not detain the plaintiff."

In the instant case, however, Laurix
alleges that Universal improperly swore out
a complaint for his arrest, and police offi~
cers arrested him at the request of Univer-
sal. These allegations clearly constitute a
claim that Universal unlawfully procured
Laurix’s arrest, and therefore Laurix's
counterclaim for false imprisonment does
state a claim upon which relief may be
granted. See Green v. No. 35 Check EX-
change, Inc., 77 Ill.App.2d 25, 222 N.E.2d
133 (1st Dist. 1966). Accordingly, Univer~
sal’s motion to dismiss Laurix’s counter-
claim must be denied. It is so ordered.

w
o g m wumsrksvsrm
T

Nelson DOTSON, et al., Plaintiffs,

V

CITY OF INDIANOLA, MISSISSIPPI, '
et al., Defendants.

No. GC 80—220—WK—O.
United States District Court,

N. D. Mississippi,
Greenville Division.

 

 

- Sept. 2, 1981.

‘2;

:il Plaintiffs in voting rights action filed

.1 motion seeking to hold defendant city offi-
i ' cials in contempt because of their actions

,,:'_'3_ following determination of Attorney Gener~
5 , > , al regarding four areas annexed by city, or,
.3 . i

to declare legal boundaries
and establish election procedures of munici-
_v z ' pality for holding primary and general elec-
} . '- tions. Defendants countered by moving for
£ ‘ i order to postpone municipal elections or to
l
‘

;. ,j alternatively,

 

declare temporary election boundaries pro-

 

521 FEDERAL SUPPLEMENT

vantage in electing candidates

44?

posed by them. The Three Judge District
Court, Keady, Chief District Judge, held
that: (1) district court was without jurisdic-
tion to question Attorney General's authori-
ty in limiting his objection to one annexa-
tion when four annexations by city were
submitted as unit; (2) city was under obli-
gation to allow electors residing in areas
precleared by Attorney General to vote; (3)
defendants and their counsel were not in
contempt of court; and (4) no good reason
existed for delaying elections.

Ordered accordingly.

1. Elections W12

Where city invoked Attorney General's
discretion by pursuing administration rath-
er than judicial alternative to preclearance
of annexed areas, and Congress intended to
preclude all judicial review of Attorney
General’s exercise of discretion, district
court was without jurisdiction to question
Attorney General's authority to limit his
objection to one annexation by city when
four annexations by city were submitted as
unit. Voting Rights Act of 1965, § 5 as
amended 42 U.S.C.A. § 1973c.

2. Elections 0:212

Where reverting to preannexation city
oundaries for voting purposes would
amount to purposeful discrimination on ba-
sis of race and therefore violate Federal
Constitution, and such action would itself
amount to voting change requiring federal
preclearance as citizens residing in annexed
areas had voted for 15 years, city was under
obligation to allow electors residing in an-
nexed areas approved by Attorney General
to vote. Voting Rights Act of 1965, § 5 as
amended 42 U.S.C.A. § 1973c.

3. Elections 0912

Where city and prospective candidates
had more than adequate time to prepare for
election, city’s request to postpone election
was based solely on its desire to preclude
blnck citizens from obtaining “windfall" ad-

of their

choice, no good reason for delaying elections
existed.

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940 521 FEDERAL SUPPLEMENT

Manning, also a resident of the 1965 an-
nexation, testified that the city attorneys
did not advise the board that persons resid-
ing in the areas annexed in 1966 and 1967
should not be allowed to vote. Tr. 124.
Johnson took a somewhat different position,
agreeing that persons residing in the areas
annexed in 1966 and 1967 should not be
allowed to vote because “it would be just as
detrimental to the white voters as it would
be for those black voters that would be
disenfranchised. [Johnson] wanted to work
up a package that would be satisfactory to
everybody and give everybody a fair and
honest vote." Tr. 137.

Robinson, the only black alderman, re-
sides in one of the areas annexed in 1966 or
1967. Robinson understood “that once the
Justice Department preclears any subdivi-
sion, that that particular city has no power
to overrule the Justice Department.” Tr.
144. Robinson, who first heard that the
submission was on a package basis “after
the Justice Department had made its rul-
ing,” characterized the package submission
as follows:

The package theory, to my mind, was
just a defense by our legal group and had
no bearing on what the Justice Depart-
ment decided It was out of our
hands. In my considered opinion, it was
out of our hands the minute it got to the
Justice Department.

Tr. 145.

None of the aldermen could recall a vote
by them authorizing the annexations to be
submitted as a package, although most ac-
knowledged that the city attorneys were
authorized to speak for the board.

Indianola’s regularly scheduled quadren-
nial general elections for mayor and alder-
men are to occur on December 8, 1981, and
the primary election thirty days before, on
November 10. Electors and candidates for
office must qualify by October 9. Prepara-
tory to holding the elections, election offi-
cials must purge the registration rolls and
take other steps necessary to hold an order—
ly election. W. E. Felts, Assistant Clerk of

7. The regulations recognize that a submission
may be supplemented by the political unit. See

the City of Indianola, stated in his affidavit
that the City presently has over 6,000
names on its roll of registered voters and
that, in order to properly purge the roll, the
election commissioners could review no
more than 500 names per day. On cross-ex-
amination, however, Felts acknowledged
that the voter rolls are purged prior to
every quadrenniel election, and that, in his
experience, the process has never taken
more than four or five days.

Because of the publicity attendant upon
the positions taken by the parties and the
hearings in court, Indianola citizens who
reside in affected annexed areas are uncer-
tain as to their status as voters and possible
candidates in the fall elections.

LEGAL ANALYSIS

If this court had plenary jurisdiction to
consider this matter, we would first ask
“what was submitted to the Attorney Gen-
eral?" If it were determined that the sub
mission was effectuated by the March 6
letter from Mayor Fratesi which was not
conditioned in any way and that Robertson,
as the City’s special counsel, could not
thereafter restrict the Attorney General’s
review, the inquiry need proceed no further,
since under those circumstances the Attor-
ney General would clearly have authority to
preclear only those annexations he deemed
to be nondiscriminatory. If, however, it
were determined that the initial submission
was validly amended 7 by Robertson’s
March 11 letter which conditioned preclear-
ance on an “all or nothing" basis, we would
then have to ask whether the Attorney
General was justified in limiting his objec-
tion to the 1965 annexation.

It is, of course, well established that this
local district court does not have unlimited
jurisdiction in § 5 issues. See Allen v.
Board of Elections, 393 US. 544, 89 S.Ct.
817, 22 L.Ed.2d 1 (1969). Because we con-
clude that the Attorney General's actions in
this case are insulated from judicial review,
we may assume that the City’s submission

46 Fed.Reg. at 878 (1981) (to be codified in 28
CFR § 51.37).

 

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was validly amended to provide that all
annexations were being submitted as a
package.

Preclearance through the Attorney Gen-
eral was proposed and adopted as an exped-
itious alternative to declaratory judgment
actions in the United States District Court
for the District of Columbia. Hearings on
8.1564 before the Senate Committee on the
Judiciary, 89th Cong, lst Sess., pt. 1, at 237
. ‘ (1965); see Harper v. Levi, 520 F.2d 53, 65
‘ '(D.C.Cir.1975). Recognizing that this objec-
Ztive would be frustrated if the Attorney
General's action could be reviewed at the
Instance of an aggrieved party, the Su-
lreme Court held in Morris v. Gressettc, 432
US. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506
1977), that the Attorney General’s failure
to interpose an objection to voting changes
« within 60 days of the completed submission
m not reviewable.

5.“ Morris involved a challenge to South Car-
olina's reapportionment statute. The state
‘had submitted the statute to the Attorney
,‘General, who timely interposed an objec-
1‘lion. Subsequently, the United States Dis-
,trict Court for the District of South Caroli-
‘ in: held that the statute violated the fif-

Jeenth amendment and allowed the state 30
days to enact a constitutionally acceptable
. reapportionment plan. The new plan was
filed with the district court and thc Attor-
ney General. Since the district court up-
held the new plan’s constitutionality, the
Attorney General notified the state that it
‘ ifelt constrained to defer to that court’s
' ,,,~,determination and accordingly would not
u-i‘interpose an objection. Id. at 493—97, 97
Rad. at 2414—17, 53 L.Ed.2d at 512—14.

3‘ Plaintiffs then commenced suit in the
LiUnited States District Court for the District
Columbia, which ordered the Attorney
,‘ General to make “a reasoned decision in
i'mordance with his statutory responsibili-
“Ry." Harper v. Kleindienst, 362 F.Supp.
9‘ 742, 746 (13.00.1973). The Attorney Gen-
feral responded by stating that while he felt
-' .‘Ibe new plan had constitutional infirmitics,
‘_ he nonetheless felt constrained to abide by
. the South Carolina court’s ruling. After
- "_being directed to ignore the South Carolina

  

  

  
  

DOTSON v. (IITY OF INDIANOLA, MISS. 941
Cite as 521 F.Supp. 934 (1981)

court’s decision, the Attorney General inter-
posed an objection. The objection came
more than 60 days after the state submitted
the new plan to the Attorney General. The
D. C. Court of Appeals affirmed, holding
that the Attorney General’s action in failing
to make an independent determination of
§ 5 issues was reviewable. Harper v. Levi,
supra.

Plaintiffs then filed an independent suit
in the South Carolina District Court seeking
injunctive relief against implementation "of
the new reapportionment plan. The three-
judge court in South Carolina refused to
follow Harper v. Levi, and held that the
Attorney General’s actions were not review-
able. Morris v. Gressette, 425 F.Supp. 331,
337 (D.S.C.1976).

On appeal the Supreme Court affirmed
and held that the Attorney General’s deter-
minations under § 5 are not reviewable
under the Administrative Procedures Act
since “Congress did not intend the Attorney
General’s actions under that provision to be
subject to judicial review." 432 U.S. at 501,
97 S.Ct. at 2419, 53 L.Ed.2d at 517. The
Court noted:

In light of the potential severity of the
§ 5 remedy, -the statutory language, and
the legislative history, we think it clear
that Congress intended to provide cover-
ed jurisdictions with an expeditious alter-
native to declaratory judgment actions.
The congressional intent is plain: The
extraordinary remedy of postponing the
implementation of the validly enacted
state legislation was to come to an end
when the Attorney General failed to in-
terposc a timely objection based on a
complete submission. Although there
was to be no bar to subsequent constitu-
tional challenges to the implemented leg-
islation, there also was to be “no drag-
ging out" of the extraordinary federal
remedy beyond the period specified in the
statute. Since judicial review of the At-
torney General’s actions would unavoid-
ably extend this period, it is necessarily
precluded.

Id. at 504 705, 97 S.Ct. at 2420, 53 L.Ed.2d at
518—19 (footnotes and citations omitted).

  

      
      
   
  
     
      
     
 
 

  
   
 
 
 
   
  
  
  
 
  
   
   
 
   
  
 
  
  
 
 
 
    
   
    
  
  
 
 
 
   
  
  
   
   
   

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\

942 521 FEDERAL SUPPLEMENT

The Court’s conclusion concerning nonre—
viewability was reinforced by the fact that
neither the Attorney General’s objection or
failure to object is conclusive with respect
to the validit v non of the voting change.
432 U.S. at 505 & n.21, 97 S.Ct. at 2420 &
n.21, 53 L.Ed.2d at 519 & n.21. Finally, the

Court noted that courts must operate “on

the assumption that the Attorney General
of the United States will perform faithfully
his statutory responsibilities." 432 U.S. at
506 n.23, 97 S.Ct. at 2421 n.23, 53 L.Ed.2d at
520 n.23. In response to the United States’
argument that judicial review should be
allowed whenever “the Attorney General
improperly relinquishes his responsibility to
evaluate independently the submitted legis-
lation in light of the standards established
by § 5,” the Court stated that “Congress
intended to preclude all judicial review of
the Attorney General’s exercise of discre-
tion or failure to act." Id. at 507 n.24, 97
S.Ct. at 2421 n.24, 53 L.Ed.2d at 520 n.24.8

Morris has been relied upon by the lower
courts as precluding judicial review of the
Attorney General’s actions in a variety of
factual circumstances. In Harris v. Bell,
562 F.2d 772 (D.C.Cir.1977), plaintiffs con-
tended that the Attorney General's action
in withdrawing an objection to a submission
violated his own regulations since the with-
drawal was not based on “previously una-
vailable” information as the regulations
then required. The district court held that
it had authority to review the Attorney
General’s procedural determination and
therefore denied defendant’s motion to dis-
miss. Harris v. Levi, 416 F.Supp. 208, 210—
11 (D.D.C.1976). On appeal, the D. C. Cir-
cuit reversed upon the authority of Morris
and held that there was “no basis for allow-
ing judicial review of the Attorney Gener-
al’s determination that previously unavaila-
ble information justifies withdrawal of an
objection, or of his application of the statu~
tory standards in the context of a decision
to withdraw." 562 F.2d at 774.

8. The majority's result was over the dissent of
Justice Marshall who stated:

[l]t matters not whether the Attorney Gener-
al fails to object because he misunderstands
his legal duty . . .; because he loses the sub-
mission; or because he seeks to subvert the

In City of Rome v. United States, 450
F.Supp. 378 (D.D.C.1978), aff’d on other
grounds, 446 U.S. 156, 100 S.Ct. 1548, 64
L.Ed.2d 119 (1980), the city filed suit alleg-
ing, inter alia, that the Attorney General’s
objection in the absence of a hearing or
written findings violated its due process
and other constitutional rights. The court
dismissed the city’s claim, holding that it
was without jurisdiction to review the pro-
cedures used by the Attorney General in
deciding to interpose an objection and that
“[i]t is of no consequence in assessing
jurisdiction whether the challenge is
couched in terms of improper procedures or
in terms of improper result.” 450 F.Supp.
at 381 & n.2. Responding to plaintiff's
argument that judicial review of allegedly
unconstitutional executive action is re—
quired under the doctrine of judicial su-
premacy, the Rome court recognized that
“Congress has neither totally insulated the
Attorney General’s actions from judicial
scrutiny nor totally deprived plaintiffs of
judicial redress. Congress merely has es-
tablished an exclusive means of obtaining
‘review’ of the Attorney General's determi-
nation—a de novo proceeding in the District
Court for the District of Columbia.” Id. at
382 n.3 (emphasis in original).

[1] In the case sub judice, Indianola ar-
gues that the Attorney General was with-
out authority to preclear the 1966 and 1967
annexations while objecting to the 1965 an-
nexation. The City’s reasoning is that it
submitted all annexations as a single
change affecting voting. By not adhering
to the City's “package consideration” condi-
tion, the City maintains that the Attorney
General failed to preclear that which was
submitted. The City concludes by stating
that there is nothing “in the statute or
regulations which permits the Justice De
partment to . . . preclear[] part of an an-

Voting Rights Act. Indeed, the Court today
grants unreviewable discretion to a future
Attorney General to bargain acquiescence in
a discriminatory change in a State's voting
laws in return for that State's electoral votes
Id. at 508, 97 S.Ct. at 2422, 53 L.Ed.2d at 521.

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. nexation while rejecting other parts.” De-
‘ fendant’s Opposition to Motion for Con-
tempt Citation at 22. Under the authorities
' Idiscussed above, however, there can be no
;. judicial review of the Attorney General’s
I. action in preclearing three annexations
.. while objecting to one. Indianola invoked
, the Attorney General’s discretion by pursu-
" ing the administrative rather than judicial
alternative to preclearance. Since “Con-
1“ gross intended to preclude all judicial re-
-‘ .view of the Attorney General’s exercise of
‘ discretion” under § 5,9 the City’s sole reme-

any at this juncture is to institute suit in the

I, D. C. court for a declaratory judgment that

‘ithe 1965 annexation has neither a discrimi-

' ‘1 nawry purpose or effect. We are, in short,

l without jurisdiction to question the Attor-

. ney General's authority in limiting his ob-

"jection to the 1965 annexation.lo

.1 [2] Accordingly, the Attorney General’s
{June 1 letter must be taken at face value.
“As such, it has the effect of precluding
L ‘ from voting or running for office only those
kelectors residing in the May 1965 annexa-
ii_,t.ion. Electors residing in the areas an-
"nexed in 1966 and 1967 clearly should be
Allowed to vote. The City maintains that
although the Attorney General may have

   
  
   
 
   
  
  
   
    
  
    
      
    
  

3!. Mom's V. Gressette, supra. 432 U.S. at 507

‘- n24, 97 S.Ct. at 242I n.24, 53 L.Ed.2d at 520
f -; n.24.

" 0. We do note, however, that the Attorney
‘ General’s action in objecting to only part of a
. submission is hardly novel. For example, in
City of Rome v. United States, 446 U.S. 156,
100 S.Ct. 1548, 64 L.Ed.2d 119 (1980), the city
submitted 60 annexations in one submission.
The Attorney General approved 47 annexations
j and objected to 13. On reconsideration, the
‘ Attorney General approved the 13 annexations
for purposes of school board elections but not
J 'for purposes of city commission elections. Id.
' 11161—62, 100 S.Ct. at 1554, 64 L.Ed.2d at 130.
; _t_'I‘he D. C. court, in a de novo declaratory judg-
'_ ment proceeding, reached the same result,
,i which the Supreme Court affirmed. Id. at 187.
_ 100 S.Ct. at 1567, 54 L.Ed.2d at 146.

' 3.. Woods v. Hamilton, 473 F.Supp. 641 (D.S.C.

979) suggests that the Attorney General had

the duty to pass on all of the annexations

submitted on March 6. There South Carolina

. , submitted for preclearance an act which had

,' three components. On the 60th day after the

r, completed submission was received, the Attor-
'5. ney General responded as follows: (1) he ex~

  

 
   

  

  

 

DOTSON v. CITY OF INDIANOLA, MISS.
Cite as 521 F.Supp. 934 (I98I)

943

precleared these areas, it is under no obliga-
tion to allow electors residing therein to
vote, and that it may lawfully revert to the
November 1, 1964, city boundaries for vot-
ing purposes. This argument must fail for
two reasons. First, such action, if taken by
the City, would amount to purposeful dis-
crimination on the basis of race and there-
fore would violate the federal constitution.
Indianola may not, in effect, de-annex black
persons solely because it does not desire to
provide the rights entitled to all citizens of
a municipality. See Franklin v. City of
Marks, 439 F.2d 665, 670 (5 Cir. 1971). Fur-
thermore, action of such character would
itself amount to a voting change since citi-
zens residing in the 1966 and 1967 annexed
areas have voted for the past 15 years.
Since there no longer exists a federal obsta-
cle to their exercise of the franchise, § 5
would require federal preclearance before
Indianola might lawfully take the position
that citizens residing in 1966 and 1967 an-
nexations may no longer be allowed to vote.
In rejecting Indianola’s assertion that it is
free to restrict the electoral base as it may
desire, we note the Fifth Circuit’s holding
in City of Marks, supra, that “[w]hat might
be regarded as 'a routine municipal ordi-

pressly did not object to one component; (2) he
attempted to reserve the right to object to an-
other component; and (3) he did not mention
the third component. Id. at 645. The district
court held that all three aspects of the act were
precleared since "[t]he statutory scheme makes
[the Attorney General's] failure to object to
such submission, or to any part thereof, within
that [60 day] period tantamount to approval.”
Id. at 645. Since the state submitted the entire
act, “the Attorney General was required to
pass on all components of a complete submis-
sion." Id. at 646.

Although the City has apparently dropped its
argument that the Attorney General's action in
preclean’ng only three of the annexations oper-
ated as an automatic withdrawal of the submis-
sion, see Defendant's Opposition to Motion for
Contempt Citation at 20—24, such an argument
would produce the same result as indicated
above. The Attorney General's June I letter
implicitly rejected the City’s position that it
could so withdraw a submission and his August
6 letter explicitly stated that the City did not
have the right to withdraw its submission. We
may not review this decision.

 

 

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DOTSON v. CITY OF INDIANOLA, MISS.

941

Cite u ”I F.Supp. 934 (1981)

m validly amended to provide that all
emotions were being submitted as a
If, package. ’

‘ Proclearance through the Attorney Gen-
ml was proposed and adopted as an exped-

 

‘l-gi ;. if ., . 31m: alternative to declaratory judgment

' . «lions in the United States District Court
. hr the District of Columbia. Hearings on
$11564 before the Senate Committee on the
.iulirinry, 89th Cong, 1st Sess., pt. 1, at 237

.4 iii

. "1 My; ‘. {15(6); see Harper V. Levi, 520 F.2d 53, 65

iti.C.Cir.1975). Recognizing that this objec-
tive would be frustrated if the Attorney
‘ 1 . (immi's action could be reviewed at the
finance of an aggrieved party, the Su-
; ,wme Court hold in Morris v. Gressetts. 432
_,:tis191, 97 S.Ct. 2411. 53 L.Ed.2d 506
" 11977), that the Attorney General's failure
til interpose an objection to voting changes
. vithin 60 days of the completed submission
Am not reviewable.

 

~ .1 ..llum's involved a challenge to South Car-
.‘ illna'n reapportionment statute. The state
. ijlmi submitted the statute to the Attorney
.mml, who timely interposed an objec-
I V 1m. Subsequently, the United States Dis-
; and Court for the District of South Caroli-
‘, .tu held that the statute violated the fif-
1" math amendment and allowed the state 80
. id»! to enact a constitutionally acceptable
. win-wartionment plan. The new plan was
. - - '31-in with the district court and the Attor-
4 ' In General. Since the district court up-
”Mil the new plan’s constitutionality, the
it'll M, .I.l3- Niamey General notified the state that it
”-11‘ Wang, ini constrained to defer to that court’s
i Ibcmniinntion and accordingly would not
"ism-isms an objection. Id. at 493—97, 97
m. 11. 2414-17, 53 L.Ed.2d at 512—14.
‘ inmtiiis then commenced suit in the
i'hilol States District Court for the District
" if Columbia, which ordered the Attorney
,,i.";orn\l to make “a reasoned decision in
. .lttmnlunce with his statutory responsibili-
1)" Harper v. Kleindienst, 362 F.Supp.
, ' ; :11. 715(1)..1)c.1973). The Attorney Gen-
' "' i . mil mponded by stating that while he felt
"‘-‘ ‘1 “" plun had constitutional infirmities,

  
    
  
 
  
   

 

in hintihcless felt constrained to abide by

‘ 'ij ;" l‘! South Carolina court’s ruling. After

" 10-11; directed to ignore the South Carolina

N , iii? ii“ 7

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court’s decision, the Attorney General inter-
posed an objection. The objection came
more than 60 days after the state submitted
the new plan to the Attorney General. The
D. C. Court of Appeals affirmed, holding
that the Attorney General’s action in failing
to make an independent determination of
§ 5 issues was reviewable. Harper v. Levi,
supra.

Plaintiffs then filed an independent suit
in the South Carolina District Court seeking
injunctive relief against implementation of
the new reapportionment plan. The three-
judge court in South Carolina. refused to
follow Harper v. Levi, and held that the
Attorney General’s actions Were not review-
able. Morris v. Gressetts, 425 F.Supp. 831,
337 (D.S.C.1976).

On appeal the Supreme Court affirmed
and held that the Attorney General's deter-
minations under § 5 are not reviewable
under the Administrative Procedures Act
since “Congress did not intend the Attorney
General’s actions under that provision to be
subject to judicial review. " 482 U. S. at 501, '
97 S.Ct. at 2419, 53 L..Ed2d at 517. The
Court noted:

In light of the potential-severity of the .
§ 6 remedy, the statutory language, and
the, legislative history, wethink it clear
that Congress intended to provide cover-

ed jurisdictions with an expeditious alter-ho ‘
native to declaratory judgment actions. ' '

The congressional intent is plain: Thor
extraordinary remedy of postponing the
implementation of the validly enacted
state legislation was to come to an end
when the Attorney General failed to in~
terpose a timely objection based on a
complete submission. Although there
was to be no bar to subsequent constitu-
tional challenges to the implemented leg-
islation, there also was to be “no drag-
ging out" of the extraordinary federal
remedy beyond the period specified in the
statute. Since judicial review of the At-
torney General's actions would unavoid-
ably extend this period, it is necessarily
precluded.

Id. at 504—05, 97 S.Ct. at 2420, 53 L.Ed.2d at

518—19 (footnotes and citations omitted). '

 

 

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Manning, also a resident of the 1965 an-
nexation, testified that the city attorneys
did not advise the board that persons resid-
ing in the areas annexed in 1966 and 1967
should not be allowed to vote. Tr. 124.
Johnson took a somewhat different position,
agreeing that persons residing in the areas
annexed in 1966 and 1967 should not be
allowed to vote because “it would be just as
detrimental to the white voters as it would
be for those black voters that would be
disenfranchised. [Johnson] wanted to work
up a package that would be satisfactory to
everybody and give everybody a fair and
honest vote.” Tr. 137.

Robinson, the only black alderman, re-
sides in one of the areas annexed in 1966 or
1967. Robinson understood "that once the
Justice Department preclears any subdivi-l
5 - .; " sion, that that particular city has no power
i=5; 4 _‘ ~ , to overrule the Justice Department.” Tr.
7 " U ‘ , 144. Robinson, who first heard that the
‘ submission was on a package basis “after
the Justice Department had made its rul-
ing," characterized the package submission

. as follows:

The package theory, to my mind, was
Just a defense by our legal group and had
no bearing on what the Justice Depart-

‘ ment decided .. It was out of our
, _ ' hands. In my considered opinion, it was

”i": = I ""out of our hands the minute it got to the

”Justice Department.

Tr. 145.

None of the aldermen could recall a vote

‘ by them authorizing the annexations to be

: t ' submitted as a package, although most ac-

‘ knowledged that the city attorneys were
' authorized to speak for the board.

Indianola’s regularly scheduled quadren-
nial general elections for mayor and alder-
men are to occur on December 8, 1981, and
the primary election thirty days before, on
November 10. Electors and candidates for
office must qualify by October 9. Prepara-
tory to holding the elections, election offi-
cials must purge the registration rolls and
take other steps necessary to hold an order-
ly election. W. E. Felts, Assistant Clerk of

 

 

7. The regulations recognize that a submission
may be supplemented by the political unit. See

521 FEDERAL SUPPLEMENT

the City of Indianola, stated in his affidavit
that the City presently has over 6,000
names on its roll of registered voters and
that, in order to properly purge the roll, the
election commissioners could review no
per day. On cross-ex-

more than 500 names
amination, however, Felts acknowledged
that the voter rolls are purged prior to
every quadrenniel election, and that, in his
experience, the process has never taken
more than four or five days.

Because of the publicity attendant upon
the positions taken by the parties and the
hearings in court, Indianola citizens who
reside in affected annexed areas are uncor-

tain as to their status as voters and possible ”

candidates in the fall elections.

‘ 2 - ~ LEGAL ANALYSIS

 

the Attorney Gen
eral?"

mission was effectuated by the March 6"
letter from Mayor Fratesi which was not

conditioned in any way and that Robertson“;

as the City's special counsel, could not
thereafter restrict the Attorney
review, the‘inquiry need proceed no further,

  

preclear only those annexations he deemed' _:
to be nondiscriminatory. If, however, it

were determined that the initial submission :

was validly amended 7 by Robertson's
March 11 letter which conditioned preclean
ance on an “all or nothing” basis, we would
then have to ask whether the Attorney
General was justified in limiting his objocs
tion to the 1965 annexation.

It is, of course, well established that this U I,

local district court does not have unlimital
jurisdiction in § 5 issues. See Allen r.
Board of Elections, 393 U.S. 544, 89 8.0.
817, 22 L.Ed.2d 151969). Because we con-

clude that the Attorney General’s actionsin . 1‘ ' '

this case are insulated from judicial review. ':

we may assume that the City’s submission ‘7 S

-46 Fed.Reg. at 878
CFR § 51.37). .'

  

  
 
 
  
 
   

If. it were determined that the sub- '

  

General's .

since under those circumstances the Atton- if
ney General would clearly have authority to 4‘3

l

(1981) (to be codified tun ”

 

was: val ‘ ’
itlllu‘). '

package.

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1 ii“ .4] . Judiciary. “rm.
llllll- u , , (1965); see: .::
151-, - (D.C.(lir. l9?“ '1
at" '

‘tive would ;..;
‘ General's ll.(:,l«:l: .,

11..

 
   
   
    
 
  
   
  

lustnnuc oi h
;. prcmc Court lhriil ix
-U.S. 1.391, 97’ PM”
1977), that the At

. tp'llinterp‘ose an obj.

.: 1 t',"

was notreviewalalc.
1M; Morris involved a
il'olinn’s l't‘flppm‘tiouu
,liadsubmitted toe .

        
   
  
  

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."""l.rlut Court fm 2
inti‘tia'llolcl that Li: 1 s

 

   
  
 
  
  
  
 
     
    
  
  
 

 

  

’- mnpportionmont pl:
', :"Yllod with the distri
iiflnoy General. Sums
.L- held. the new plan'
'| 3‘ Attorney General in
{felt constrained to
'mdcuirmination and
fl interpose an obj-.:cti
TS.Ct. at 241447, 5
Plaintiffs Ll‘lm' ct
‘ United States Distrit
of Columbia, u...::i;
General to mail-:11 "i
acmrdam-e w H 2: u}.
ty." Harpo
' 742, 746 (1113111....
, ‘iurul responded lg, 5L:
' IV the new plan h:- , 4::
' ,lho nonetheless i~ 1 :.~
,4": ‘ the South Carr" :.

 
      
  
  
  
 
 
  
  
  
 
 
  
  
   
  

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521 FEDERAL SUPPLEMENT

The Court’s conclusion concerning nonre-
viewability was reinforced by the fact that
neither the Attorney General’s objection or
failure to object is conclusive with respect
to the validity vel non of the voting change.
432 U.S. at 505 & n.21, 97 S.Ct. at 2420 &
n.21, 53 L.Ed.2d at 519 & n.21. Finally, the
Court noted that courts must operate “on
i the assumption that the Attorney General
of the United States will perform faithfully
his statutory responsibilities." 432 U.S. at
506 n.23, 97 S.Ct. at 2421 n.23, 53 L.Ed.2d at
520 n.23. In response to the United States’
argument that judicial review should be
allowed whenever “the Attorney General
improperly relinquishes his responsibility to
evaluate independently the submitted legis-
lation in light of the standards established
by § 5,” the Court stated that “Congress
intended to preclude all judicial review of
the Attorney General’s exercise of discre-
tion or failure to act.” Id. at 507 n.24, 97
S.Ct. at 2421 n.24, 53 L.Ed.2d at 520 n.24.8

Morris has been relied'upon by the lower
courts as precluding judicial review of the
Attorney General’s actions in a variety of
factual circumstances. In Harris v. Bell,
562 F.2d 772 (D.C.Cir.1977), plaintiffs con-
tended that the Attorney General's action
in withdrawing an objection to a submlsslon
violated his own regulations since the with-
drawal was not based on “previously una-
vailable” information as the regulations
then required. The district court held that
it» had authority to review the Attorney
General’s procedural determination and
‘ therefore denied defendant's motion to dis-
'_ miss. Harris v. Levi, 416 F.Supp. 208, 210—
; 11 (D.D.C.1976). On appeal, the D. C. Cir-
cuit reversed upon the authority of Morris
‘ and held that there was “no basis for allow-
ing judicial review of the Attorney Gener-
al's determination that previously unavaila-
ble information justifies withdrawal of an
objection, or of his application of the statu-
tory standards in the context of a decision
to withdraw." , 562 F.2d at 774.

8. The majority's result was over the dissent of
. Justice Marshall who stated:

[l]t matters not whether the Attorney Gener-
al fails to object because he misunderstands
his legal duty . . .; because he loses the sub-
mission; or because he seeks to subvert the

. 382 n. 8 (emphasis in original)

In City of Rome v. United Slsxlti ‘ ' l H V‘

F.Supp. 378 (D. D. C 1978), 8fo o'. .1;-

L. Ed. 2d 119 (1980), the city filed an». owl

ing, inter alia, that the Attorney Consist " iii

objection in the absence of 11 Mental

written findings violated its due M11511 I I

and other constitutional rights. in M
dismissed the city’s claim, holding iiis'
was without jurisdiction to rcvion 'iiifiifi

cedures used by the Attorney. Gamma.

deciding to interpose an objection mitihll

« 11].

“[i]t is of no consequence in new 1 ;V‘ii‘iiii‘ii

jurisdiction . . . whether the chasm: ,

couched 1n terms of 1mproper pn.~..._§,,‘,'.i
in terms of improper result." 460an
at 881 & n.2. Responding to Milli!

 

. argument that judicial review of

unconstitutional executive attics; 1
quired under the doctrine of j"
premacy, the Rome court

“Congress has neither totally insult“ ,.
Attorney General’s actions front: 13:51!
scrutiny nor totally deprived p ‘l H
judicial redress.

tablished an exclusive means of‘
‘review’ of the Attorney General's2

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nation—a do nova proceeding in ii , iii

Court for the District of Columbia “"iil‘1

[1] In the case sub judice, “16W. " "i
gues that the Attorney General Wii
out authority to preclear the 1966 slit m.

u

nexation.
submitted all annexations as. s

regulations which permits the Jam 1"; l
partment to . . .preciear[] part I’ sissy

4' l
Voting Rights Act.
grants unreviewable discretion Is 1mm

:11!

The City’s reasomngbiw .3 “a ‘

lndeed,lh¢ClfliMri , H V ,1

Attorney General to bargain “me i :.

a discriminatory change in I Smifliihdilii
laws in return for that State' I WWW igici‘
Id. at 508 97 s Ct. at 2422 5:1 Latins“

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