Orleans Parish School Board v. Bush Brief for Appellees

    N os. 90-711 & 90-712

In  The

Supreme Court of tfje ?HnttcD states
October Term , 1991

Lawrence C. Presley, Individually and on 
Behalf of Others Similarly Situated,

Appellant,
v.

Etowah County Commission,

E d Peter Mack and Nathaniel Gosha, III, 
Individually and on Behalf of Others Similarly Situated,

Appellants,
v.

Russell County Commission,

On Appeal from the United States District 
Court for the Middle District of Alabama

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND BRIEF AMICUS CURIAE OF THE NAACP LEGAL 

DEFENSE AND EDUCATIONAL FUND, INC.,
IN SUPPORT OF APPELLANTS

Julius L. Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 
(Counsel of Record)

NAACP Legal Defense 
and Educational 
Fund, Inc.
99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amicus Curiae

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



Nos. 90-711 & 90-712

In  T h e

Supreme Court of tfjc Umteb States
O c to ber  Term, 1991

La w r e n c e  C. Pr esl e y , In d iv id u a l l y  a n d  o n  
B e h a l f  o f  O th ers  Sim ila rly  Sit u a t e d ,

Appellant,

v.

Et o w a h  Co u n t y  Co m m issio n

E d  Pe t e r  Ma ck  a n d  N a t h a n ie l  G o sh a , III, 
In d iv id u a l l y  a n d  o n  B e h a lf  o f  

O th er s  Sim ila rly  Sit u a t e d ,
Appellants,

V .

R u ssel l  C o u n t y  Co m m issio n

On Appeals from the United States District 
Court for the Middle District of Alabama

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE



2

The NAACP Legal Defense & Educational Fund, Inc. 

(LDF) respectfully moves the Court for leave to file the 

attached brief as amicus curiae in support of petitioners. 

The Presley appellees have consented to the filing of this 

brief. The Mack appellees have refused to grant consent.

The NAACP Legal Defense and Educational Fund, 

Inc. is a non-profit corporation established to assist African 

American citizens in securing their constitutional and civil 

rights. LDF has had a major role in litigation efforts 

challenging discrimination in voting.1

Given amicus’ substantial experience in voting rights 

litigation, it is submitted that the brief will be of assistance

1See, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986). LDF 
represented the plaintiffs in litigation that resulted in this Court’s 
decision that interpreted amended §2 of the Voting Rights Act, 42 
U.S.C. §1973, as amended 1982. Other LDF voting rights cases 
include: Chisom v. Roemer, 59 U.S.L.W. 4696 (U.S. June 18, 1991); 
Houston Lawyers Assoc, v. A tty. General of Texas, 59 U.S.L.W. 4706 
(June 20, 1991); Jeffers v. Clinton, 730 F.Supp.196 (E.D.Ark 1989), 
sum. affd 112 L.Ed. 2d 656 (1991).



3

to the Court. Amicus therefore requests that the motion be 

granted.

Respectfully submitted,

Julius L. Chambers 
Charles Stephen  Ralston  
D a yn a  L. Cunning ham  
(Counsel of Record)

NAACP Legal  D efense  
a n d  E ducatio nal  
Fu n d , Inc .
99 Hudson Street,
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amicus Curiae



1

TABLE OF CONTENTS

SUMMARY OF ARGUM ENT........................................  2

ARGUMENT ....................................................................  4

I. The District Court Erred in Exempting from §5
Preclearance the Changes in Authority Within the 
Russell and Etowah County Commissions on the 
Ground that Such Changes Were De Minimis. . . 8

A. There is no de minimis exception to §5 . . 8

1. Congress Repeatedly Has Explicitly 
Rejected Attempts to Create
De Minimis Exceptions to §5’s 
Coverage........................................... 16

2. A De Minimis Exception to §5
Coverage Would Render The Self- 
Reporting Requirement of the Act 
Ineffective........................................  19

B. Even if there were a de minimis exception, 
fundamental changes in the authority of an 
elected official potentially dilute minority 
votes and are not de minimis changes. . . .  23 II.

II. The District Court Erred in Holding That 
Reallocations of Power Among Elected Officials 
Must Involve Changes in Constituency in Order
to Come Within §5’s Coverage ............................  32

CONCLUSION ..................................................................  37



11

Cases:

Allen v. State Bd. of Elections, 393 U.S. 544 (1969) . . 8,
9, 11, 13, 14, 16, 17, 22, 26, 27

TABLE OF AUTHORITIES

Clark v. Roemer, 59 U.S.L.W. 4583, 4586 ..............  11, 19

County Council of Sumter County v. United States,
555 F. Supp. 694 (D.D.C. 1983)......................................  34

Dillard v. Crenshaw County, 640 F. Supp. 1347, (1986) 8

Dougherty County Bd. of Educ. v. White,
439 U.S. 32 (1978) ........................ 4, 9, 10, 13, 14, 16, 24

Georgia v. United States,
411 U.S. 526, (1973) ........................................... 16, 25, 35

Guinn v. United States, 238. U.S. 3.47.(1914)................... 28

Hadnott v. Amos, 394 U.S. 358 (1969) ..........................  14

Hardy v. Wallace, 603 F. Supp. 174 ........................ 28, 34

Horry County v. United States,
449 F. Supp. 990 (D.D.C. 1978)...............................  34, 35

Huffman v. Bullock County, 528 F. Supp 703
(M.D. Ala. 1981) ..............................................................14

McCain v. Lybrand, 465 U.S. 236 (1984) . 3, 20, 23, 32, 33

McDaniel v. Sanchez, 452 U.S. 130 (1981) ............  13, 19

NAACP v. Hampton County Election Comm.,
470 U.S. 166 1985) .............................................  13, 15, 16

Perkins v. Matthews, 400 U.S. 379 (1971) . . . .  13, 17, 22



Ill

Robinson v. Alabama State Dept, of Educ.,
652 F. Supp. 84 (M.D. Ala. 1987)...................................  35

Smith v. Allwright, 321 U.S. 649 (1944) ........................ 29

South Carolina v. Katzenbach,
383 U.S. 301 (1966)......................................................... 4, 5

9, 10, 22, 27, 35

Terry v. Adams, 345 U.S. 461 (1953) ............................  29

United States v. Sheffield Board of Commissioners,
435 U.S. 110 (1978)....................................................  13, 21

Statutes:

Voting Rights Act §4b, 42 U.S.C ,§1973b.........................18

Voting Rights Act §5, 42 U.S.C. §1973c ..............  passim

Other Authorities:

28 C.F.R. §51.12..................................................................20

28 C.F.R. §51.13(i) .............................................................36

111 Cong. Rec. 8363 (daily ed. April 23, 1965) ............ 25

116 Cong. Rec. 6357 (daily ed. March 6, 1970) . . .  25, 28

121 Cong. Rec. 24111 (daily ed. July 22, 1975) ............ 25

Days and Guinier, Enforcement of Section 5 of the 
Voting Rights Act, in M in o r it y  V ote  D il u tio n  173 
(C. Davidson, ed. 1984)........................................  5, 19, 20

H. Rep. No. 227, 97th Cong., 1st Sess. 14 (1981) . 18, 27

S. Rep. No. 417, 97th Cong., 2d Sess. (1982) . . 19, 22, 24



Nos. 90-711 & 90-712

In The

Supreme Court of tfje Umteb ^tateg
October Term, 1991

La w r e n c e  C. Pr esl e y , In d iv id u a l l y  a n d  o n  
B e h a l f  o f  O th ers  Sim ilarly  Sit u a t e d ,

Appellant,

v.

E to w a h  Co u n t y  C o m m issio n

E d  Pe t e r  M a ck  a n d  N a th a n ie l  G o sh a , III, 
In d iv id u a l l y  a n d  o n  B e h a l f  o f  

O th ers  Sim ila rly  Sit u a t e d ,
Appellants,

V.

R u ssell  C o u n t y  C o m m issio n

On Appeals from the United States District 
Court for the Middle District of Alabama

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.,

IN SUPPORT OF APPELLANTS



2

In broad terms, this case asks the Court to determine 

how far a local district court may go in defining the scope 

of §5 coverage when Congress has granted exclusive 

jurisdiction over the issue to the District Court of the 

District of Columbia and the Attorney General. Appellants 

argue that the court below exceeded its jurisdiction in 

determining that changes in the fundamental authority of 

elected officials were too inconsequential to merit §5 review. 

Amicus argues that in reaching this determination, the court 

below impermissibly created two exceptions to §5.

First, in deciding that the changes in the authority of 

elected officials were inconsequential, the court below 

created a de minimis exception to §5 preclearance in 

violation of the statute’s express mandate that all changes, 

no matter how small, be subject to §5 scrutiny. To 

effectuate §5’s remedial purposes, this Court consistently 

has upheld this per se rule. Moreover, each time the Act 

has come up for renewal, Congress explicitly has rejected 

attempts to exclude even minor changes from the reach of 

§5. Congress’ refusal to create exceptions to §5 is based on

SUMMARY OF ARGUMENT



3

its concern that such exceptions will exacerbate continuing 

lack of compliance by many covered jurisdictions.

Even if there were a de minimis exception, the changes 

at issue in this case would not fall within it. The changes 

fundamentally altered the authority of elected officials in 

ways that directly affected the duties that voters elected 

them to perform. Such changes had clear potential to dilute 

African American voting strength. This Court long has held 

that changes that have the potential to dilute African 

American voting strength are covered under §5.

Second, the court below erred in deciding that 

reallocations of authority among elected officials only fall 

within the reach of §5 when they involve changes in the 

constituencies of those officials. Nothing in McCain v. 

Lybrand, 465 U.S. 236 (1984), this Court’s only

pronouncement on the issue, supports this narrowing of §5’s 

scope. The disputed changes in this case have a clear 

potential to discriminate against African American voters. 

The court below erred in ruling that they were not subject 

to §5 review.



4

ARGUMENT

Introduction

Twenty five years ago, Congress enacted the Voting 

Rights Act to "banish the blight of racial discrimination in 

voting, which has infected the electoral process in parts of 

our country for nearly a century." South Carolina v. 

Katzenbach, 383 U.S. 301, 308 (1966). The heart of the Act 

is §5, a rigorous scheme aimed at frustrating the "protean 

efforts", Dougherty County Bd. of Educ. v. White, 439 U.S. 

32, 38 n.6 (1978), of local officials to exclude African 

Americans from the political process by requiring these 

officials to seek federal approval, before implementation, of 

every new voting change enacted in their jurisdictions before 

such changes are implemented. Now a federal district court 

seeks to upset §5’s well-established enforcement scheme by 

allowing local district courts, and ultimately local 

jurisdictions, unprecedented discretion to choose which 

voting changes have sufficient impact upon the voting 

process to require preclearance under the Act. The



5

decision of the court below reverses a quarter-century of 

successful civil rights enforcement.2

Prior to the voting changes at issue in this case, the 

Russell and Etowah County Commissioners were elected at 

large from residency districts. These residency districts were 

concurrent with the commissioners’ jurisdiction over road 

operations in the counties. As a result of litigation in both 

counties, the at-large system of electing county 

commissioners was replaced by a single member district 

system. In both counties, this resulted in the election of 

African American representatives to the County 

Commissions.

Before the disputed changes, each County Commission 

adopted an annual budget for the entire county that 

allocated funds for road and bridge maintenance among the 

commissioners’ individual districts in roughly equal amounts. 

Each commissioner had complete discretion to set priorities

The Voting Rights Act has been considered one of the most 
successful pieces of civil rights legislation in this country’s history. 
Its success is based in large part upon its regulatory scheme which 
has shifted the burden of time and inertia from the victims of 
discrimination to the perpetrators of that evil. Katzenbach, 383 U.S. 
at 327; Days & Guinier Enforcement of Sections of the Voting Rights 
Act in Minority Vote Dilution 167, Davidson, ed (1984).



6

and allocate funds for road and bridge work in his or her 

county. Each commissioner exercised sole management 

authority over the operations of his or her own road crew. 

Thus, like states that receive federal block grant money, 

each commissioner had a free hand to respond to 

constituents’ needs in determining budget priorities.

The three enactments here at issue changed these 

operating procedures in both counties. In Etowah, the 

Common Fund Resolution3 worked in tandem with the 

Road Supervision Resolution4. Directly after the election of 

the first African American commissioner, it created a system 

in which commissioners who once exercised exclusive 

control over their districts were submerged within a white 

majority that now exercised effective control of all decisions 

concerning road and bridge work throughout the county. In 

Russell County, the change that divested the commissioners

JThe resolution stripped the commissioners of individual 
budgetary discretion within their residency districts, and vested that 
authority in the incumbent-dominated body as a whole.A-19

TTie resolution reserved the authority of the incumbent 
commissioners to jointly oversee all work in the county. A-20.



7

of authority over road operations and reposed it in the 

appointed county engineer had essentially the same effect.

As to the Etowah County changes, the court below held 

that the Road Supervision Resolution had the potential for 

discrimination. However, the court ruled that the Common 

Fund Resolution was not covered under §5. A-19. In 

addition, the court below held that the reallocation of 

authority in Russell County did not effect a change in the 

potential for discrimination against minority voters.

This appeal ensued.



8

I. The District Court Erred in Exempting from §5 
Preclearance the Changes in Authority Within the 
Russell and Etowah County Commissions on the 
Ground that Such Changes Were De Minimis.

A. There is no de minimis exception to §5

Section 5 requires covered jurisdictions to seek

preclearance, before implementation, of "any voting

qualification or prerequisite to voting, or standard, practice,

or procedure with respect to voting different from that in

force or effect on November 1, 1964." 42 U.S.C. §1973c.5

Two basic enforcement principles have been drawn from

this language. First, §5 admits of no exceptions; in covered

jurisdictions, all changes affecting voting must be federally

approved. Id., Allen v. State Bd. o f Elections, 393 U.S. 544,

568 (1969). Second, the burden of reporting voting changes

is on the covered jurisdiction. Submissions must be made

5 Section 4(b) of the Act sets out the criteria by which 
jurisdictions are designated for federal supervision. Etowah and 
Russell Counties are both covered jurisdictions under the Act. They 
are covered in part because of the State of Alabama’s "unrelenting 
historical agenda, spanning from the late 1800’s to the 1980’s to keep 
its black citizens economically, socially, and politically downtrodden, 
from the cradle to the grave." Dillard v. Crenshaw County, 640 F. 
Supp. 1347, 1357 (1986). Nine of the states that are covered in then- 
entirety are states of the former Confederacy. Thirteen other 
jurisdictions are covered in part.



9

in an "unambiguous and recordable manner" with a request 

for consideration pursuant to the Act. Allen, 393 U.S. at 

571.

The main obstacle to the government’s early efforts to 

enforce the fifteenth amendment was the conduct of state 

officials who resorted to the "extraordinary stratagem of 

contriving new rules of various kinds for the sole purpose of 

perpetuating voting discrimination in the face of adverse 

federal court decrees." Thus, Congress sought to create a 

stringent mechanism to address all potentially discriminatory 

enactments, even those in unanticipated forms whose impact 

on the political process nevertheless could be significant. 

White, 439 U.S. at 47.

Section 5 was one of the "array of potent weapons" 

Congress mobilized against the "insidious and pervasive evil 

which had been perpetuated in certain parts of our country 

through unremitting and ingenious defiance of the 

Constitution." Katzenbach, 383 U.S. at 337, 309. Congress 

recognized that for over 100 years, government attempts to 

enforce the fifteenth amendment’s protections against race- 

based voting discrimination through case-by-case litigation



10

had been unsuccessful. Id., at 313; White, 439 U.S. at 37.

Congress set up an enforcement scheme whereby all 

new voting practices in covered jurisdictions would be 

suspended until the jurisdiction obtained either a 

declaratory judgment from the District of Columbia District 

Court or a failure to object by the Department of Justice 

indicating that the new voting procedures had neither the 

purpose nor the effect of racial discrimination. Katzenbach, 

383 U.S. at 317. By suspending all new voting changes 

before implementation, Congress "shifted] the advantage of 

time and inertia from the perpetrators of the evil to its 

victims." Id., at 327; See footnote 2, supra. This 

"uncommon exercise of Congressional power" was justified 

by the exceptional conditions found in the covered 

jurisdictions. Id., at 334.

From this history, it is clear that §5’s enforcement 

mechanism is an intricate and carefully balanced scheme 

that cannot function without rigorous voluntary compliance 

from the states. Just last term, this Court reaffirmed this 

bedrock concept, rejecting a lower court decision that



11

sought to diminish covered jurisdictions’ compliance 

responsibilities while creating "incentives for them to forgo 

the submission process altogether." Clark v. Roemer, 59 

U.S.L.W. 4583, 4586. The rule created by the district court 

embraces the narrow vision of §5 that was rejected last term 

in Clark.

A  local district court6 faced with a challenge to a 

jurisdiction’s failure to preclear a voting change under §5 is 

forbidden from making any determination as to the 

discriminatory purpose or effect of that change. The sole 

inquiry before the local court is "whether a particular state 

enactment is subject to the provisions of the Voting Rights 

Act, and therefore must be submitted for approval before 

enforcement." Allen, 393 U.S. at 561. The three-judge 

district court in this case articulated the proper standard, 

noting that its inquiry was limited to the coverage issue, Ed 

Peter Mack, Nathaniel Gosha, III, and Lawrence C. Presley, 

individually and on behalf of others similarly situated v. Russell 

County Commission and Etowah County Commission, No.

“The statute authorizes the convening of three-judge courts to 
hear such claims. 42 U.S.C. §1973b.



12

89-T-459-E, slip op. (M.D. Ala., August 1, 1990), A-87. 

However, it failed to apply this standard when it held that 

the changes at issue, though arguably changes that affected 

voting, were beyond the reach of §5.8 A-16, A-19.

The court below created a novel exception to the 

statutory scheme, claiming that either no discrimination 

would result from the changes in question or that any such 

discrimination would be de minimis. A-17 n.15, A-19. This 

"de minimis exception" to §5 completely disregards the 

statute’s express mandate that all voting changes in covered 

jurisdictions be precleared, 42 U.S.C. 1973c, and threatens 

to undermine the voluntary compliance mechanism of the 

Act’s enforcement scheme in two critical ways. First, a de 

minimis exception would allow local district courts to 

intrude upon the exclusive authority of the District of 

Columbia District Court and the Attorney General to make

7The unpublished opinion in these cases appears in the 
appellants’ Appendices to the Jurisdictional Statements. Citations to 
this opinion throughout will refer to the Appendix to the Jurisdiction 
Statement in Presley v. Etowah County, No. 90-711.

‘Of the three changes originally challenged by appellants, the 
district court found that the shift in administrative authority of the 
Etowah County Road Commission -- which stripped administrative 
control for the road district from the seat won by the African 
American directly following his election — was covered by §5. A-20.



13

substantive determinations regarding discrimination under 

§5. Second, as a practical matter, the inevitable effect of 

this categorical exception will be to throw open to covered 

jurisdictions the determination as to which voting changes 

should be submitted for §5 review.

This Court has held §5’s preclearance requirements to 

be "all inclusive of any kind of practice," covering state 

enactments that alter the election law of a covered state in 

even a minor way. Allen, 393 U.S. at 566. Whether subtle 

or obvious, changes that affect voting are within the 

statute’s reach. Id., at 565. Under §5, no covered 

jurisdiction may enforce a change affecting voting without 

obtaining prior approval. White, 439 U.S. 32. See United 

States v. Sheffield Board of Commissioners, 435 U.S. 110 

(1978); Perkins v. Matthews, 400 U.S. 379 (1971); McDaniel 

v. Sanchez, 452 U.S. 130 (1981).

The Court has recognized that §5 reaches all changes 

that have potential impact on the political system. Thus, 

candidate filing periods, NAACP v. Hampton County 

Election Comm., 470 U.S. 166 (1985); personnel policy 

changes affecting candidates’ ability to run for office, White,



14

439 U.S. 32; bulletins from a state election board outlining 

methods of casting absentee ballots, Allen, supra-, and the 

rescheduling of candidate qualifying periods, Hadnott v. 

Amos, 394 U.S. 358 (1969) have all been found to require 

preclearance. See also, Huffman v. Bullock County, 528 F. 

Supp. 703 (M.D. Ala. 1981)(changes in office administration 

policies that shift the burden of paying support staff salaries 

to elected official are subject to §5 because such changes 

increase financial burdens on elected official and discourage 

African Americans from seeking office).

In White, the change at issue was a rule requiring 

school board employees to take unpaid leaves of absence 

when running for political office. The Dougherty County 

Board argued that the rule was a mere personnel policy 

aimed at guarding against absenteeism among its employees. 

439 U.S. at 40. Noting that the policy only affected political 

candidates and not other potential absentees, this Court 

held that the change was an "obstacle to candidate 

qualification" and thus was a covered change within the 

language of §5. Id., at 43.



15

The disputed change in NAACP v. Hampton County 

Election Commission, supra, was a modification in the date 

of election and the candidate filing period. The State of 

South Carolina contended that the change, made in an 

attempt to respond to an objection to an earlier voting 

change by the Department of Justice, was merely a 

ministerial action taken to comply with the Department’s 

requirements. 470 U.S. at 174. This Court observed that 

the filing period could not be viewed in isolation from the 

election of which it was a part. It held that the prolonged 

filing period created by South Carolina had the "potential to 

hinder voter participation," as did the change in the election 

date to no longer coincide with the general election. It 

ruled that both changes were covered under the Act. Id, at 

178.

The district court erred in creating a de minimis 

exception to §5 coverage. As explained below, Congress did 

not intend to create any exceptions to the Act.



16

1. Congress Repeatedly Has Explicitly Rejected 
Attempts to Create De Minimis Exceptions to 
§5’s Coverage.

In order fully to effectuate the enforcement mechanism 

of the statute, this Court has interpreted §5, from its 

inception, so as to afford it "the broadest possible scope". 

Allen, 393 U.S. at 576. NAACP v. Hampton County Election 

Commission, 470 U.S. at 176; Georgia v. United States, 411 

U.S. 526, 533 (1973); White, 439 U.S. at 46. If Congress 

had disagreed with this Court’s broad interpretation of §5, 

lawmakers were free, when they renewed the Act in 1970, 

1975 and 1982, to amend the statute in accordance with a 

more limited purpose. Instead, each time §5 has come up 

for renewal, it has been reenacted without substantive 

limitations. By these actions, Congress has made clear its 

continuing commitment to subject "all changes, regardless of 

how small," to §5 scrutiny. Allen, at 568.

Far from authorizing any exemptions from §5’s 

coverage, Congress repeatedly has expressly rejected 

proposals to exclude even minor voting changes from the 

reach of the Act. For example, during the debate over 

passage of the 1965 Act, the suggestion was made that



17

certain types of minor changes, such as changing from paper 

ballots to voting machines, could be exempt from 

preclearance without undermining the remedial purposes of 

the Act. Allen, 393 U.S. at 568. However, the Attorney 

General warned that "precious few" exceptions would be 

allowed under §5 because "an awful lot of things . . . could 

be started for the purposes of evading the 15th amendment 

if there is the desire to do so." Ultimately, Congress chose 

not to exempt even minor changes from the reach of the 

Act. Id.; Perkins v. Matthews, 400 U.S. 379, 387 (1971).

Similarly, during the 1981 Voting Rights Act extension 

hearings before the House of Representatives, limits were 

proposed on the categories of changes subject to Section 5. 

The rationale offered was that requiring preclearance of 

trivial changes was a burden to the covered jurisdictions and 

to the Justice Department. Proponents of the limits also 

argued that Section 5 had been read in such unpredictably 

broad ways that jurisdictions could no longer discern its 

boundaries. By amending the statute so as to enumerate 

the categories of changes requiring preclearance, these 

proponents sought to limit the scope of Section 5.



18

Rejecting these proposals, the House Judiciary 

Committee wrote:

It has also been suggested that the types of 
electoral changes subject to preclearance review should 
be limited. For example, only those changes which 
have produced the most objections from the Justice 
Department. While some changes may adversely affect 
a greater number of people, others may have precisely 
the type of discriminatory impact which Congress 
sought to prevent, even though the numbers involved 
are smaller. . . . The lesson which both Congress and 
the courts learned from the pre-1965 litigation 
experience is that jurisdictions did not limit their efforts 
to discriminate to one type of voting practice. ‘The 
discriminatory potential in seemingly innocent or 
insignificant changes can only be determined after the 
specific facts of the change are analyzed in context. 
The current formula allows for such factual analysis.’

1981 H o u se  R e po r t  34-35 (quoting and paraphrasing the
testimony of former Assistant United States Attorney
General Drew Days, 1981 H o u se  H e a r in g s  2122).
Responding to similar arguments, in 1982 the Senate also
rejected attempts to limit the scope of §5. Instead, it
reaffirmed its commitment to apply §5 to all changes and
went even further to enact penalties for local jurisdictions
who failed to submit even arguably de minimis changes for
§5 review. 42 U.S.C. §1973b.9 Thus, Congress declined to

9This section provides that a jurisdiction may bail out of §5 
coverage if the United States District Court for the District of 
Columbia determines that during the ten years prior to the filing of 
an action for declaratory judgment, and during the pendency of the 
action, "such state or political subdivision and all governmental units 
within its territory have complied with Section 5 of this Act, 
including the requirement that no change covered by section 5 has 
been enforced without preclearance under section 5. . . .)(emphasis



19

limit the range of changes subject to §5 preclearance, 
properly leaving the emphasis of §5 enforcement on whether 
the jurisdiction, and not the change, is covered. See Days 
and Guinier, Enforcement o f Section 5 of the Voting Rights 
Act, in M in o r it y  V ote  D il u tio n  173 (C. Davidson, ed. 
1984)(hereafter cited as "Days and Guinier").

2. A De Minimis Exception to §5 Coverage 
Would Render The Self-Reporting 
Requirement of the Act Ineffective

Section 5’s enforcement mechanism depends on a clear 

division of labor between the federal government and the 

covered jurisdictions. The covered jurisdiction is required 

to submit all voting changes for preclearance and the 

Attorney General must review those submissions to 

determine if there is a discriminatory impact. Congress has 

determined that this scheme of comprehensive reporting is 

the most effective way to implement its enforcement goals. 

Clark v. Roemer, 59 U.S.L.W. at 4586; McDaniel v. Sanchez, 

452 U.S. 130, 151 (1981)("The prophylactic purposes of the 

§5 remedy are achieved by automatically requiring review of 

all voting changes prior to implementation by the covered

added); See also, S. Rep. No. 417, 97th Cong., 2d Sess. (1982) at 48 
(noting that "if bail-out were not made dependent on record of 
timely submissions, there would be no incentive for jurisdictions to 
take seriously that requirement."



20

jurisdictions.")(intemal quotation marks omitted); McCain 

v. Lybrand, 465 U.S. 236, 248 (1984), ("Enforcement of the 

Act depends upon voluntary and timely submission of 

changes subject to preclearance.") This determination was 

made in view of the Attorney General’s limited resources 

and Congress’s anticipation that the Attorney General 

would be unable to discover independently all changes with 

respect to voting enacted by covered jurisdictions10.

In order to effectuate Congress’s enforcement scheme, 

the Attorney General has enacted regulations governing the 

implementation of the Act. The breadth of these 

regulations makes clear that there are no exceptions to §5 

coverage:

28 C.F.R. §51.12 Scope of requirement

Any change affecting voting, even though it 
appears minor or indirect, returns to a prior 
practice or procedure, ostensibly expands voting 
rights, or is designed to remove the elements that 
caused objection by the Attorney General to a 
prior submitted change, must meet the section 5 
preclearance requirement

10See Days and Guinier at 168 (Even during periods of rigorous 
enforcement, Department of Justice was unable to ensure that all 
voting changes were submitted because of lack of adequate resources 
to canvass changes, obtain compliance with preclearance procedures 
or ascertain whether submitting jurisdictions had complied with 
objections).



21

As the official charged with primary responsibility for 

enforcement of the Act, the Attorney General’s 

interpretation of the Act is entitled to considerable 

deference. See e.g., Sheffield Board o f Comm’rs, 435 US 

at 131, (deference should be accorded to Attorney 

General’s construction of the Act, especially in light of the 

extensive role played by the Attorney General in drafting 

the statute and explaining its operation to Congress); White, 

439 U.S. at 39, 58 L.Ed 2d 289, 99 S.Ct. 368.

The all-inclusive preclearance rule of §5 is based in 

part on Congress’s and the Attorney General’s recognition 

of a long history of noncompliance among the covered 

jurisdictions. The 1982 Senate Report observed that

The extent of non-submission documented in both 
the House hearings and those of this Committee 
remains surprising and deeply disturbing. There 
are numerous instances in which jurisdictions failed 
to submit changes before implementing them and 
submitted them only, if at all, many years after, 
when sued or threatened with suit.

Put simply, such jurisdictions have flouted the law 
and hindered the protection of minority rights in 
voting.



22

S. Rep. No. 417, 97th Cong., 2d Sess. at 47-48. See also, 

NAACP, 470 U.S. at 175, n. 19. (The "prevalence of 

changes that were implemented without preclearance" as a 

"prime concern of Congress when it extended the Voting 

Rights Act in 1982.") This Court has recognized that 

noncompliance among the covered jurisdictions poses a 

serious threat to §5 enforcement. Perkins, 400 U.S. at 38911. 

A de minimis exception to §5 coverage would exacerbate 

that threat by further weakening compliance by the covered 

jurisdictions. This is because the practical effect of a de 

minimis exception that allows courts to decide that certain 

changes are inconsequential under §5, is to expand the 

discretion of covered jurisdictions to decide that certain 

changes are not within the Act and need not be submitted.12 

A de minimis exception thus would "permitf] circumvention

11 In Perkins this Court observed:
The history of white domination in the South has been 
one of adaptiveness, and the passage of the Voting Rights 
Act and the increased black registration that followed has 
resulted in new methods to maintain white control of the 
political process. 400 U.S. at 388.

^Jurisdictions under preclearance are subjected to the rigorous 
requirements of the Act precisely because of a documented history 
of egregious abuses of voting rights and abuse of discretion. See 
Katzenbach, supra; Allen, supra.



23

of the requirement that itself was designed to eliminate 

circumvention of the goals of the Act." McCain v. Lybrand, 

465 U.S. at 249.

B. Even if there were a de minimis exception, 
fundamental changes in the authority of an 
elected official potentially dilute minority votes 
and are not de minimis changes.

The enactments at issue in this case stripped a newly 

elected African American official of the authority he was 

elected to exercise. As a result, the votes of minority voters 

who elected these officials were rendered virtually 

meaningless. The court below, however, held that the 

fundamental diminution of the duties of the African 

American voters’ representative had "no obvious relation to 

voting rights,"13 and was not subject to §5.

In announcing this rule, the district court made two 

errors. First, it went beyond the issue of §5 coverage to 

examine the merits of the change. As discussed in Point I 

of the appellants’ brief, the court below overstepped its 

jurisdiction. The consideration of substantive issues of

13The basis of the district court’s conclusion was that no change 
had occurred in the constituencies of the officials among whom 
authority was reallocated. This issue is discussed in Point II infra.



24

discrimination properly is left to the District Court of the 

District of Columbia or the Attorney General.

Second, the court below misapplied the "potential for 

discrimination" standard for §5 coverage by disregarding the 

potential the disputed changes had to diminish African 

American voters’ opportunity to cast a meaningful vote. 

Under the proper inquiry, which seeks to determine 

whether, under any circumstances, the changes at issue had 

the potential for discrimination, the disputed changes are 

covered by §5.

The purpose and structure of §5 demonstrate that 

Congress intended the Act to cover changes in the authority 

of elective office that have the potential to dilute minority 

voting strength.14 Congress explicitly condemned attempts 

to diminish African American voting strength by 

fundamentally altering elective offices. These attempts

‘‘Congress enacted §5 as a "mechanism for coping with all 
potentially discriminatory mechanisms whose source and forms it 
could not anticipate, but whose impact on the electoral process 
would be significant." White, 439 U.S. at 47. As such, the Act’s 
purpose has always been to prevent implementation of ever more 
sophisticated methods of obstructing African American voting rights. 
S.Rep. No. 417, 97th Cong., 2d Sess. (1982). Section 5 covers 
changes that affect the "power of the citizen’s vote" as well as those 
that "undermine the effectiveness of voters." Allen, 393 U.S. at 569.



25

include: 1) extending the terms of offices held by white 

incumbents to avoid challenges by African Americans; 2) 

abolishing offices sought by African American candidates15; 

and 3) making local elective offices appointive in 

predominantly black counties but not in predominantly 

white counties. See 116 Cong. Rec. 6357 (daily ed. March 

6, 1970)(Remarks of Sen. Bayh). Aware that local officials 

were employing these obstructionist tactics to dilute 

minority voting strength, Congress acted promptly in 1970 

and again in 1975 to renew the Act.16 In 1982, Congress

15 Within a few days after an African American candidate 
qualified to run for justice of the peace to fill a vacancy in his 
district, county commissioners in Baker County, Georgia, voted to 
consolidate all militia districts into one district. "The effect was to 
abolish the one office for which a Negro had filed." 116 Cong. Rec. 
6357 (daily ed. March 6, 1970)(Remarks of Sen. Bayh).

16Since the Act’s inception, lawmakers repeatedly have expressed 
their intention that its provisions protect against attempts to diminish 
minority voting strength. See, e.g., I l l  Cong. Rec. 8363 (daily ed. 
April 23, 1965) (statement of Sen. Javitts)("The right to vote is the 
cornerstone of our democratic society. A citizen’s respect for law 
rests heavily on the belief that his voice is heard, directly or 
indirectly in the creation of law.) Id., at 38493 (Remarks of Rep. 
Ryan) (Work needs to be done to enable black citizens to share 
political power in communities where they are not an absolute 
majority); 121 Cong. Rec. 24111 (daily ed. July 22, 1975)(Remarks 
of Sen. Tunney)("I don’t think that there is anything more 
fundamental to our political process than the right to vote. I would 
couple the right to vote in order of importance with the right of free 
speech and the right to make one’s views known. But it does not do 
any good to the right to make your views known if you do not have



26

again renewed §5’s protections precisely because it 

recognized that the potential for discrimination persists in 

changed voting practices despite the increasing number of 

African American elected officials.17

This Court has affirmed this clear congressional intent. 

In Bunton v. Patterson, a companion case to Allen v. State 

Bd. o f Elections, supra, it held that changes that

the power to do anything about it, or if you do not have the ability 
to elect those officials who are going to govern your life. . . . The 
Voting Rights Act is, if nothing else, . . .  an invitation to all 
Americans to participate in the process of government. . . ).

17The potential for discrimination inheres in changes in the 
authority of elected officials because such changes affect the officials’ 
ability to carry out the instrumental functions of government that 
they were elected to perform. When minority representatives’ ability 
to carry out their functions is inhibited, the ballots cast in then- 
support are diminished and the voters are powerless to address the 
effects of continued exclusion from government. The House Report 
that accompanied the 1982 amendments to the Act specifically 
addressed lawmakers’s intention that §5 protect minority voters 
against continued exclusion from government. The report noted 
that:

The observable consequences of exclusion from 
government to the minority communities in the covered 
jurisdictions has been (1) fewer services from government 
agencies, (2) failure to secure a share of local government 
employment, (3) disproportionate allocation of funds, 
location and type of capital projects, (4) lack of equal 
access to health and safety related services, as well as 
sports and recreational facilities, (5) less than equal 
benefit from the use of funds for cultural facilities, and (6) 
location of undesirable facilities, e.g., garbage dumps or 
dog pounds, in minority areas.

H. Rep. No. 227, 97th Cong., 1st Sess. 14 (1981).



27

fundamentally alter the authority of elected African 

American representatives have the potential to dilute 

African American voting strength and thus are covered by 

§5. In Bunton v. Patterson, the Mississippi legislature 

abolished an elected county office, converting it to an 

appointed position. This Court held that the change 

potentially diluted African American voting strength 

because citizens could no longer elect a county official who 

was subject to voters’ approval. 393 U.S. at 570. It 

therefore held that the change was covered by §5.

The Allen court recognized that §5 covers certain 

changes in the authority of elective offices that have an 

impact on minority voting strength. It cited as an example 

of such a change the incident described in Congressional 

testimony by Attorney General Katzenbach. Attorney 

General Katzenbach described the case of a school board 

that was ordered by a federal court to comply with the 1957 

Voting Rights Act, but was then immediately stripped of 

all authority and funding to achieve compliance by the state 

legislature. See id., at 568 (citing testimony of Attorney 

General Katzenbach). Similarly, courts have held that §5



28

covers manipulations that bar participation by minority 

voters’ representatives. See Hardy v. Wallace, 603 F. Supp 

174 (N.D. Ala. 1985)(Following election of first African 

American legislative delegation for county, authority to 

appoint head of county racing commission transferred from 

local delegation to governor).

Indeed, if a legislature passed a kind of "grandfather 

clause"18 that barred from participation in legislative debate 

any legislator who had not been in office before the election 

of the first African American legislator, such a change 

would be covered by §5. Cf Hardy v. Wallace, 603 F. Supp. 

174. Likewise, if a state legislature fearing an African 

American opponent in a local government election extended 

the white incumbent’s term of office by several years, the 

change would be covered. See 116 Cong. Rec. 6357 (Daily 

ed. March 6, 1970)(comments of Sen. Bayh).

The foregoing changes render African American votes 

for representatives of their choice meaningless because the 

changes subvert the representatives’ authority to carry out

18 See Guinn v. United States, 238 U.S. 347 (1914).



29

the mandates they were elected to discharge. Such changes 

are the functional equivalents of "white primaries" which 

were used historically to obstruct African American voting 

rights. After white primaries were instituted, although 

African Americans still had the formal right to vote, their 

exclusion from critically important election contests 

rendered their votes meaningless. This Court long ago 

established that such an abridgement of African American 

voting rights is illegal. Smith v. Allwright, 321 U.S. 649 

(1944), Terry v. Adams, 345 U.S. 461 (1953).

The decision of the lower court clearly conflicts with 

this Court’s direction. Although the court lacked 

jurisdiction to decide the actual discriminatory effect of the 

disputed changes, it was obliged to determine whether those 

changes had any conceivable potential to dilute African 

American voting strength. It erred in this analysis. In 

Russell County, the court below held that because the 

official responsible for road operations both before and 

after the disputed change was elected by, or responsible to, 

the voters of the entire county, there was "no significant 

change in the influence wielded by the voters of any



30

district." A-17. This analysis fails to recognize that the 

voters’ right to cast a meaningful ballot was potentially 

diminished because they no longer directly elected the 

official in charge of road operations. Had the change, from 

election to appointment, in the method of selecting the 

county engineer from election to appointment not occurred 

in Russell County, voters would have been able to elect an 

official responsible for road operations who was directly 

accountable to them. As a result of the changes occurring, 

even after African Americans obtained the ability to elect 

a road commissioner, this ability became meaningless 

because the commissioner had been stripped of his 

authority. Had the change not occurred, voters could have: 

1) held the elected officials directly accountable for 

unpopular policy choices by voting for his/her opponent in 

the residency district—the county engineer is insulated from 

such direct responsibility to the voters; 2) had greater access 

to the road commissioner within their residency district and 

been able to lobby him/her to use his/her exclusive 

budgetary authority within the district to support policy 

choices—now all budgetary decision making and allocations



31

are centralized; 3) had direct input into the selection of the 

official responsible for road and bridge operations in the 

county—now they have indirect input, if any input at all, into 

the selection of the county road official.

The court below also held that the adoption of the 

Common Fund Resolution would have a negligible effect on 

minority voting strength because it did not change the 

allocation of overall budget authority to the commission as 

a whole. However, like voters in Russell County, voters in 

Etowah County potentially had their voting strength 

significantly diminished with the restructuring of the 

commission’s budgetary authority. After the change: 1) 

voters could no longer elect from their residency district an 

official who had complete discretion over road and bridge 

funds in the district; 2) even if they convinced their 

representative to support a particular project, the 

commission as a whole could exercise veto power over the 

individual commissioner’s choice; and 3) voters elected 

officials who had diminished bargaining power because they 

no longer had the ability to set district priorities individually



32

and "horsetrade" with other commissioners for their 

preferred projects.

II. The District Court Erred in Holding That Reallocations 
of Power Among Elected Officials Must Involve 
Changes in Constituency in Order to Come Within §5’s 
Coverage.

The court below created a second impermissible 

exception to §5 coverage when it held that reallocations of 

authority among elected officials would only be subject to 

§5 scrutiny if they "effect a significant relative change in the 

powers exercised by governmental officials elected by, or 

responsible to, substantially different constituencies of 

voters."19 A-13-14. Section 5’s scope does not rest on an 

analysis of the relative effect of voting changes among 

particular constituencies. The holding of the court below is 

wrong as a matter of law.

This Court has made only one express pronouncement 

about §5 coverage of reallocations of authority among 

elected officials. In McCain v. Lybrand, 465 U.S. 236

19The attempt of the court below to analyze the relative effects 
of the voting changes was another impermissible foray into the 
substantive discrimination issues that are reserved for the District of 
Columbia Circuit Court and the Department of Justice.



33

(1984), this Court noted that the "basic reallocation" of 

authority from the old county board to the new county 

council would be a covered voting change under the Act. 

Under the old county board system, the county was 

effectively governed by the local legislative delegation, with 

certain limited authority reserved to the county board. The 

old county board was comprised of three members, two of 

which were appointed by the local legislative delegation. 

The third member was elected at-large from the county. 

The new structure called for the at-large election of all 

members of the 5-member governing body.

Nothing in this Court’s decision in McCain suggests 

that a change in the constituencies of the elected officials is 

a necessary prerequisite to §5 coverage. The Court’s 

conclusion rests squarely on the fact that the restructuring 

caused fundamental changes in the function and powers of 

the governing board. 465 U.S. at 239 (1984) ('The Act 

created a new form of government for [the] County, altering 

the county’s election practices."). In addition to the change 

in the function and powers of the board, the Court noted 

three additional grounds for §5 coverage. None of the



34

Court’s reasons even remotely relied on a change in 

constituency theory.20

Moreover, none of the cases cited by the district court 

supports its rule that reallocations of authority among 

elected officials will only be subject to §5 if they involve a 

change in constituency. See Horry County v. United States, 

449 F. Supp. 990 (D.D.C. 1978); County Council o f Sumter 

County v. United States, 555 F. Supp. 694 (D.D.C. 1983)21; 

Hardy v. Wallace, 603 F. Supp. 174 (N.D. Ala. 1985)22 and

aThe Court suggested that the restructuring also could be 
covered under §5 because it: a) altered the office terms of the 
elected officials; b) altered the method of selecting certain officials 
from appointment to election; and c) created a residency 
requirement for county council members.

21 In Sumter County, the district court rejected the theory — 
virtually identical to the one advanced by the district court here -- 
that a restructuring of local government was beyond the scope of §5 
because the constituencies of the old and new governing bodies did 
not change. The Sumter County court rejected this approach as 
"facile" because it ignored the de jure changes in the county’s 
governing structure caused by the restructuring. Contrary to the 
interpretation of the district court in this case, the Sumter County 
court’s holding did not rest on an analysis of the effect of the change 
on various constituencies. The Sumter County court based its holding 
on the simple fact that the "de jure scheme was unarguably altered 
. . . and constitutes a change cognizable under §5 of the Act." 555 
F. Supp. at 702.

22The Hardy court found §5 applicable to the changes in issue 
principally because the changes reversed the scheme of local voter 
oversight over a governing body that controlled over 63% of the total 
county revenue. The Hardy court noted that divesting the local 
legislative delegation of its authority to appoint the head of the body, 
and transferring the authority to the governor, had the potential to 
dilute African American voting strength. 603 F. Supp. at 179.



35

Robinson v. Alabama State Dept, o f Educ., 652 F. Supp. 484 

(M.D. Ala. 1987)23. To the contrary, Horry County, the lead 

case relied on by the district court, explicitly held that a 

change in the duties of an elected official, without any 

change of constituency, was a change subject to §5. 449 F. 

Supp. at 995.24 Horry was decided by a District of Columbia 

district court. Given the unique role played by that court 

in enforcing §5, its interpretation should be given great 

deference. Katzenbach, 383 U.S. 301; Georgia v. United 

States, 411 U.S. 156.

Changes that fundamentally alter the authority of an 

elective office have a per se impact on the electoral process 

and expressly come within §5’s ambit. This rule is 

supported by the Attorney General’s regulations for 

implementing §5. Those regulations expressly state that any 

changes in the "term of an elective office or an elected

23While the Robinson court held that the change in the 
constituency that elected the two bodies was one basis for requiring 
preclearance, the court found that the change in the method of 
selecting the board was an independent ground for subjecting the 
plan to §5 scrutiny. 652 F.Supp. at 486.

^The Horry court held that the new duties of the chair were 
"sufficiently different [to] constitute^ a change in electoral practice 
requiring preclearance under §5. Id., at 995.



36

official or in the offices that are elective" are covered under 

the Act. 28 C.F.R. §51.13(i)

The changes at issue in this case are covered changes 

within the meaning of §51.13. The change that stripped the 

Russell county commissioners of their sole discretion to 

supervise the roads and bridges in their districts 

fundamentally changed the ways in which those officials 

exercised their authority and performed their administrative 

duties and unarguably was a "change in the offices that are 

elective. Likewise, the change in the fiscal autonomy of the 

Etowah county commissioners, and the decision to require 

that all road work be conducted through the existing four 

road shops, unarguably worked fundamental changes in the 

way the commission conducted business and thus was a 

"change in the office that is elective" as well. Whether 

within the language of the regulations or the statute itself, 

the changes at issue in this case are subject to §5.



37

Conclusion

For the reasons discussed herein, amicus respectfully 

urges this Court to reverse the holding of the trial court 

that the disputed changes are not covered by §5, and 

remand the cause to the district court for further 

proceedings.

Respectfully submitted,

Julius L. Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 
(Counsel of Record)

NAACP Legal Defense 
and Educational 
Fund, Inc.
99 Hudson Street,
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amicus Curiae