Plaintiff's Response to Defense's Memo in Support of Suggestion of Mootness and Motion to Dismiss

    IN TH

FOR THE

RALPH GINGLES, et

v.

RUTUS EDMISTEN,
as the Attorney
Caro1ina, et dl.,

On October 'l ,

acLion a motion t
The motion to d.is

addressed to the

stated in the c
upon 55 of the

S 19 73c.

defendants' fail

covered by 55 of

Attorney General

District Court fo

made by the State

SS3 (3) , 5 (3) to i

UNITED STATES DISTRICT

ERN DISTRICT OF NORTH

RALEIGH DIVISION

Plaintiffs.

his capacity
eral of North

Defendants.

\C'

COURT

CAROLINA

Civil Action

No.81-803-cIv-5

PL
ME
oF

NTIFFS' RESPONSE TO DEFENDANTSI
rN SUPPORT OP SUGGESTION

SS AI{D MOTION TO DTSIVISS

1981, defendants filed in the instant

dismiss and a suggestion of mootness.

ss and the suggestion of mootness were

rst, fifth, and seventh claims for relief

aint insofar as those claims are founded

ng Rights Act of 1965r Ers amended, 42 U.S.C.

Voting Rights Act fo: submit, fOr:approval to

the United States or to the united States

the District of Co1umbia, certain amendments

f North Carolina in L967 to Art. TI,
Constitution. The plaintiffs' first claim

y that the defendants herein "continue to

The first cI for relief stated in the complaint alleges

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

, with respect to counties of North Carolina

alleges specifical



enact aPportionmen

elections for the

and the North Caro

II, SS3(3) and 5(:

State I s apportio

Assembly has the

black citizens. P

a violation of 52,

SS1973, 1973c. pl

198I apportionment

the House of Repre

the purpose and. ef

Rather, they claim

formation regardin

to the Attorney Ge

is supported by an

Secretary-Director

and an accompanyin

22, 1981 and after

the L957 amendment

for approvalr a's

L/ By separate le
mitted to +-he Atto
all legislative en
in North Carolina
III, TV.

Plainti-ffs' f th claim for relief alleges that the

plans and to conduct and supervise

rth Carolina House of Representatj.ves

ina Senate in accordance with Article

of the North Carolina Constitution. "

nt in 1981 of the North Carolina General

and effect of diluting the vote of
ntiffs claim that this action constitues

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

int,if f s t seventh claim is that the State's
of its election districts for election to
entatives of the United States Congress has

ect of d,iluting the voting strength of black

of the defend.ant State Board of Electj.ons,
letter, showing that the Stater or1 September

the conrmencement of this lawsuit, submitted.

to the Attorney General of the United, States
L/quired by 55 of the Voting Rights Act.-

ter dated September 23, 1981, Brock further sub-
ney General of the United States for approval
ctments regarding constitutional propoiitions
ince 1967. See Brock Afficlavit, Attachments

citizens. The se th claim alleged thert the apportionment

violated 52 and 55

SS1973, L973c.

of the Voting Rights Act of 1965, 42 U.S.C.

In their moti and suggestion of mootness, defendants

to the L967 amendments to the Statestate, with resp

Constitution, that the "State chooses not to contest plaintiffs

se provisions should. have been submitted. "

in the motion that "fuI1 and. complete in-
the L967 amendments has now been submitted

eral of the United States.,' This allegation
affid,avit by Alex K. Brock, Executive

contention that t

-2-



It is also

approval of

for relief.

conten

the 19

by defendants that the submission for,

amendments moots the first stated claim

t the complaint contains no allegation that

-to submit the 1981 legislative and congress-

plans for approval to the Attorney General

s. Moreover, defendants contend that the

for approval for these apportionment plans

ut by the State. Since the d.efendant further

Court with nothing to determine. AccordinglY,

fifth and seventh claims be disnrissed.

s stated below, plaintiffs oppose the motion,

g suggestion of mootrress. and requi:st'that 'they

ARGUMENT

NTIFFS',FIRST CLAIM FOR
AND SHOULDIEF IS NOT MOOT

BE DENIED.

ise of defendants' motion to dismiss and

.ss r with respect to plaint,if fs I first

well as the fifth and seventh claims for

of the Voting Ri-ghts Act requires only
z/

covered political subdivision of 'rchangesr' -.

ts Act, 55, requires

With respect o the plaint.if f s ' fifth and seventh claims,

sdiction of this Court is limited to a

necessity for preclearance of the plans

under 55 of the V ing Rights Act, they argue that thej-r sub-

defendants claim

the State has fail

ional apportionmen

of the United Stat

proper submissions

have been carried

argiue that the j ur

determination of t

missions leave thi
they pray that the

For the reas

and the accompany

be denied.

The central

suggestion of moo

claim for relief

relief, is that S

the submission by

U The voting Ri
voting qualificat
practice, or pro
that in force or
jurisdictions co

or prerequisite to
ure with respect to
fect on November L,
d by the statute at

precleararlce of "any
votingr or standard,

voting different from
L964," for political
that time.

-3-



made by

voting,

it.

or st
voting. " Once th
further obligati

diction and that

to enforcement or

is this assumpti

that the jurisd.ic

of violations of
the alleged votin

the assumptions

with it, the moti

fa.I1s to the gro

and without basis

The evil aga

or administration

qualifications, o

which have the pu

the right to vote

end. Preclearanc

the United, States

is the means chose

mission by the co

is itself merely

General or the Dis

have the opportuni
j urisdict.ion will
purpose or effect
account of race or

The covered j

votj-ng changes fo

not the heart of S

prevention of the

in its "voting qualification or prerequi-sJ-te to

, practice, or procedure with respect to
is done, defendants assume, there is no

und.er 55 on the part of the covered juris-
re is no further prohibition by the statute

dministratj-on of the voting "change." It
that supports defend.ants I second. assumption

on of this Court, with respect. to prevention

, is limited to a determination of whether

change must be precleared. If either of

, then defend.antsr entire argument, and

to dismiss and the suggestion of mootness,

. Both assumptions, however, are unsupported

law or fact.

st which 55 was dj.rected is enforcement

f changes in votj-ng practices, proceedures,

prerequisites , by covered jurisd.ictions,

se or effect of "denying or abridging the

account of race or color. " This is the

i.e., approval, by the Attorney General or
istrict Court for the District of Columbia

by Congress to effectuate that end.. Sub-

red,jurisdiction of its voting changes

means for guaranteeing that the Attorney

rict Court in the District of Colurnbia will
y to insure that voting changes by the covered.

ot be enforced or administered if their
s to abrid,ge or deny the right to vote on

co1or.

risdictionts obligation to submit proposed

approval therefore, while essential, is thus

. Rather, the focus of the statute is the

nforiement or the administration of the

-4-



proposed voting c

It is the duty of
pose. See, e.g.,
377 u.S. 386, 395

34L,349 (1968)

Only recentl
in an action to p

to the City Counc

apportionment p1

55, noted that:
Section
of 1965)
subdivi
Act fr
qualifi
proced
(1) obt
the Uni
Distric
not ha
effect
to vote
ship i.n
mitted
General
General
within
uPon
ped.ited
such s
affirma
will n

Ilerron v. Koch,

(s.o. N.Y. ), page

It should be

supporting the mot

of moot,ness, as we

not allege or swe

the submitt,ed, voti
interposed by the

such submission,

atively indicated

changes submitted.

-5-

anges absent approval as specified by SS.

federal courts to uphold the statutory pur-

udson Distributors, fnc. v. Eli LiIl & co.,
(L964)i P.T.C. v. Fred Meyer, Inc., 390 U.S.

, a three-judge district'court in New york,

vent New York City from conducting elections

, a IocaI legislative bodyr pursuant to an

which had not, been precleared. pursuant to

of the Act (Voting Rights Act
prohibits any State or political
on subject to Sectj-on 5 of the
enforcing any change in voting
tionsr pxereeuisites, practices,

or standards unless it has either
ed a declaratory judgrment, from
States District Court for the

of Columbia that the change "doesthe purpose and, will not haire the
f denying or abridging the right

account of race, cotror or (member-
language minority) ,' or (Z) sub-

e proposed. change to the ALtorney
f the United States 'and the Attorney
as not interposed an objection
xty days after such submission, or
cause shown, to facilitate an ex-

pproval within sixty d,ays after
ssion, the Attorney General has

vely indicated that such objection
be made.

F. Supp . _r 81 Civ. 1956, Sept. 8, 198I

of Slip Sheet opinion (attached).

oted that defend.ants, in their memorand,um

on to dismiss and, the accompanying suggestj_on

I as in thE affidavit, by Alex K. Brock, do

(1) that the Attorney General has approved,

g changes or (2) that no objection has been

ttorney G,enera1 within sixty (60) days of
(3) that the Attorney General has affirm-
at no objection will be made to the voting
'See, also United States v. Board of Supervisors,



429 u.s. 642, 645

Attempt
not bee
be enj
court i
(citing

(1977), where the Supreme Court stated:
to enforce changes that have
subjected to 55 scrutj.ny may
ed by any three-judge distiict
a suit brought by a voter
I1en v. State Board of Elections,

not been approved pursuant to 55 have ex-
to enjoin enforcement and. administration

ee-judge court held that it was ,'eminently

11 concerned to d.e1ay the election rather
ection in direct contravention of the Voting
. Supp. at 742-43. See, a1so, Beer v. United.

357, 362 (D. D. c. L974) i Matthews v.

393 u.s. 4, ss4-s63 (196gll
The three-j district courts which have been convened

to hear challenge to the validity of attempts to enforce voting
changes which

ercised their
of the voti.ng s pend,ing a determination by the Attorney
General. In Heqqi s v. City of Dallas , 469 F. Supp. 739 (N.D.
Tex. L979') , the th
more equitable to
than to a1low an e

Rights Act. " 469

States, 374 p. Sup

765, 768 (N.p. MiI
Education, 431 F.

Rights Act of l9G5

with respect to 55

(1) actions to res

missio*.of the leg

Leflore County Boa of Electj-on Commissioners , 450 F. Supp.

p. 9L9, 920 (M.D. Ga. 1977).

The Supreme I s interpretatj.on of 55 of the Voting

1978); White v. Dougherty County Board of

authorizes the courts to exercise jurisdiction,
claims in the following three instances:
rain "enforcement, pending the Staters sub-

latj.on pursuant to 55, ', Allen v. State Board

v. City of Richmond , 406 U.S. 903 (L972) i

of -Elections, supr , 393 U.S. at 555; (2) actj.ons to enjoin
enforcement where

posed changes, HoI

he Attorney General has objected to the pro-

and (3) actions to
where the time per

expired. See Unit

enjoin enforcement of submitted voting changes

od for the Attorney General to act has not
d States v. Board of Supervisors, supra,

429 u.s. 645-647. See, also, Herron v. Koch, supra.

The above cas s are applicable to the instant action.
They show that is no merit either in defendants' moti.on

ggestion of mootness. plaintiffs! firstto dismiss or its

-6-



claim for relief

apportionment pI

in accordance wit
Caroli.na Constitu

not controvert pI

make such a denial

relief is not moot

Supreme Court case

court has power to
mentati-on of the 1

approved by the At

PLATNTIFFS I F

leges that. " (d) efendants continue to enact

and, to conduct and supervise. election
Article If, SS3 (3) and 5 (3) of the North
on. "

Defendants, their motion papers and. affidavits, do

ntiffsf averment that they are presently
enforcing and admi stering these constitutional provisions
without approval rsuant to 55. Nor could d,efendants credibly

Accordingly, plaintiffs' first claim for
and should not be dismj.ssed. Moreover, the

cited herein clearly show that the district

failed to interpo

enjoin the continued, enforcement and imple-
67 amendments until such time as they are

orney General or the Attorney General has

a timely objectJ-on.
II

FTH AND SEVENTH CLAIMS ARE NOT MOOT

The considera

challenge to plain

applicable to defe

claims for relief
a11ege that there

would not enforce

in the ahsence of

or failure by the

of defendants' fai
in voting proced

!/Attorney General

1/ on page 3 of i
that "a11 legislat
propositions in No
approval to the At
24, 1981, followin
Brock affidavit, A

ions outlined above with respect to defendants'

if fsr first claj-m for relief are equally
dants' challenge to the fifth and seventh

tated in the complaint. Defendants do not
s no reasonable basis to assume that it,
d administer the 1981 apportionment changes

he necessary approval by the Attorney General

ttorney General to t.imely object. The history
ures to submit its constitutional changes

s, as well as other voting changes, to the

or approval demonstrates that there is a

s memorand,um to dismiss defendants state
ve enactments regarding constitutional
th Carolina since 1967 " were submitted for
rney General for the first time on September
the conrmencement of this action. See, also,

t,achment III.

-7-



As the Supre

"voluntary cessat

deprive the trib
r.9., does not

Grant Co., 345 U.

applied by the S

issues to be deci

review, t' Dunn v.

See, a1so, Southe

498 (1911) Moore

there is a basis

be expected again

the particular n

Iowa, 4L9 U.S. 39

in having the leg

against a mootnes

supra, 345 U.S. a

410 u.s. 742, 756

The consiste

voting changes fo

mented by Brock's

in settling the 1

S5, and recogniti

of repetition if

that plaintiffsl

Moreover, plainif

actions in compel

"milj.tates agains

Court has noted in numerous cases,

of allegedly illegal conduct does

of power to hear and determine the

the case moot. I' united States v.

not

case,

W. T.

. 629, 632 (1953) . This rule has been

reme Court in cases, such as here, where the

d are "capable of repetition, yet evading

Iumstein, 405 U.S, 330, 333, n. 2 (Lg7Z).

Pacific Terminal Co. v. ICC, 219 U.S.

ilvie, 394 U.S. 814 (1969); or where

believing that "the defendant . could

act contrary to the rJ-ghts asserted by

plaintiffs involved . ," Sosna v.

, 399 (19 75) i or where "a pubIi" *"=a
lity of the practJ-ces settled, militates ,

conclusion. " United States v. W. T. Grant Co. ,

533. See also, Rosario ,v. Rockefeller,

n. 5 (1973).

t failure of defendants to submit applicable

approval to the Attorney Generalr ds docu-

ffidavit, Attachment III, the public interest
ality of the defendants' compliance with

that the issues raised herein are capable

view is evaded now, d.emonstrate conclusively

aims are not moot and should. not be dismissed..
I entitlement to attorney's fees for its
g defendant to make the 55 submissj-ons also

a mootness conclusion. "



For the reaso

be denied and the

Dated, October 29,

CONCLUSION

stated above, the motlon to dimsiss should

ggestion of-mootness should be rejected.

Respectfully submitted,

981

Chambers, Ferguson, Watt, Wallas,
Adkins E Ful1er, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 2gZO2

- Tel. (ZOI) 375-816L

JACK GREENBERG
JAMES M. NABRTT, III
NAPOLEON B. WILLTAMS, JR.

10 Columbus Circ1e
New York, New York IO019
Te1. (zlz) se0-asgz

Attorneys for Plalntiffs

LTE J. WINNER

9



I, James C.

practice in the Ea

certify that I ha

foregoing Plaintif

Support of Suggest

by depositing the

positage affixed th
address.

October 29, 1981

CERTIFICATE OF SERVTCE

Iler, Jr., an attorney duly licensed to
tern District of North Caro1lna, hereby

this day served a copy of the withln and

s I Response To Defendants' Memorandum In
on Of Mootness and Motion To Dismiss upon

Rufus L. Edmisten
Attorney General of the State of

North Carolina
P.O. Box 629
Raleigh, North Carolina 27602

ame ln the United States mail, with adequate

reon, addressed to said counsel at said

S C. FULLER, JR.



1

,:'{O'31;ri31 iiay,*

/:>' E|LED

i s=p B 1931'\.. ' ?c nrn .\-&slz

8I Civ. I956

81 Civ. 'L542

\

I

8] Civ. 5458

Septembeir 8, 198

I

( Counsel to llew
& PuerCo R'ican

us ) , BrookfYn,
aintiff fielville

de-d:

ESQ.
BI ack

e Cauc
for pI

D K

I

I

I

I

UNITED STATES DibTR.ICT COURT

Fop. THE EAsTERI'I prstnrcT oF NElr YoRti

---------F----
HELVILLE IiEP.RON,I ATTd A}I PCTsCNS
similar,Iy si.tualed,

I Plainciff,
Iv. I
I

E[I^IAR.D I. KOCti, let aI.,
I

I De f endan ts's '

I

I

uNrrED STATES uJsrnrcr couRT

::1 -:i:-:::::i: ] :::::::: -::-::: -i:::
CARL ANDREWS, e4 aI.,

I

I Plainciffs,
I

v. .t
I

I

EU^IARD I. KOCH, leE dI.,
I

I Def endants.------: -l-----
I

I

UNITED STATES DESTRICT COURT

:::-:i: -::T:::f - :: ::: I: -: : -::i-:::
GTLBERTo ceir=tlefvAlENtrN, and on
behalf of Puert'-F Rican voters
similarlY sieut["0 

Prainriff,
I

v. t-
I

EErIARD ,: KocH,l ". al.,

I Defendants.
r-------l------

I

I

I

Argued: SePtet"t 8, i98I Dec:

It,
I PAUL woorEl{

I l:;i'ilt::
I tlew York,
I rron'
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'n

KIr\t fiOYT SPER.DUTO, ESQ' ( LeBoeuf ,

Lamb, LeibY & l4acRae), Nevr York,
llew icrk, for plaincif f s in Andrevrs,
et al. V. Koch, eq el-:

GABE KAI|'IOWITZ, ESQ. , (Puerto Rican
Legal Defense and Educat'ion Fund'
Iria. ) , New York, i'{ew York , for
plaintif f Gerena-Va1entin'

PATRICK F . X. MULHEART,I, ESQ. I (NEW

York CitY Law DePt. ), l'Jew York,
New Yorkl for defendanes ot'her than'
StanIeY Friednran.

PAUL A. VICTOR, ESQ., New Yorkr New

York, for defendant StanleY
Fr iedman.

PAUL HANCOCK, ESQ. (Civil Rights
Division, DePartlnent of Justice,'John S. l"tartinl .Jr ., U.S. At'torney,
Southern Districc of New York, of
counsel), WashingEon, D.C', for the
United States as amicus curiae'



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'

Be fOrE KEARSL,
and Duf

ircu i t Juci e, and Neaher
y, Discrict .judges:

I,IEMORAIiDUI"I AT{D ORDER

three-judge district' court has been convened
l

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

r this Purpose, that certain plans of the Cit'y

ity" ) with respect to its primary and general

uled for September 10 and November 2, I98I,

iolate S 5 of the Voeing Rights Act of 1965r ds

ter "Voting Rights .\cti' or the trAct" ), 42
t/

(1976).- Plaintiffs have moved for a

unction prohihiting the City, its officials,'

f Elections from holding these elections as

the City has no\ obtained t,he n:cessary

I of its changes in voting standards, Practices

For the reasons set' forth belowr w€ grant t'he

Board of Elections, 393 U. S. 544, 548 (1969 ) ;

u.s. 301, 308 (1955). rn

Act prohibit any St,ate or
v. Katzenbach, 343

2 and 4(f) (2) of the

iv is ion

. This

pursuanc to 28

consolidaced t

of l.lew York (".

elections sche

respective IY,

amended (herea

U.S.C. S 1973c

pr6liminary in

and its Board

planned becaus

federal apPro

and procedures

motions.

Con

was to rid ch

A.l-len v. Scat

South Carol in

substance, SS

political su

ReA.

BACKGROUND

u 1 reme ts of the votin Riq h F*s Ac t

ressts purpose in enact,ing the Voting Rights Act

country of racia.L discriminat,ion in voting'

3-



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3

4

5

6

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:

it
:t

B.

from imposing o

f o.r voting r oE

respect to voti

effect of discr

membership in a
2/

Ie73b(f)(2).-

State or politi
3/

Act- from enfo

prerequis ites ,

has either (1)

States District

change "does n

of denying or

race [, ] color,

suomitted the'

un ited states I'

objection with

good cause sh

sixty days "f:
af f irrnatively

28 U.S.C. S I

apply ing any qual i f ications or Prerequis i t'es

ractices, procedures r oE standard.s wit'h

g, that have the purpose or will have the

minating o: the basis of race, colorr o(

language minority grouP. 42 U-S.C. SS 1973,

In practice, S 5 of the Act prohibits any

aI subdivision subject to S 5 of the

cing any change in voting qualificaEions,

ractices, procedures or ltandards unless it

btained a declaratory judgment from the Uniceo

Court for the District of Columbia that t'he

have the Purpose and wiLL not have the effect

ridging the right to vote on account of'

r [membership in a language minoriEylrn or 12)

oposed change to the At,torney General of Che

nd the Attorney Genera] has not interPosed an

sixty days after such submissionr oE uPon

, to facilitate an expedited approv.al within

r such submission, the Attorney GenEraI has

dicated that such objection will not be made. "

73c.
!/

The Cit.rrs PI an

Purs

Districting
provide a draf

districts..
members after
of the resules

Commission pre

nt to che City's Charter, the City's Council

ission (the "Commissionn) is required "to

plan for dividing the City into council

at the first regular election of council

ach federal census . . . .o Following receipt

f the 19Bo census on April 1, 1981, the

enteci such a draf t Plan t,o the l.lew York City

4-



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CounciI. On

plan; and on

biLt,' Loca.l L

Law 47, the C

to elecf- a si

boroughs of e

Councilmen on

councilmanic

district coun

district Iine

changes aPPr

Bronx, Kings,

certain Pollj

.Th
coverage 

. 
of

Bronx, Kings
7

to .the Ac t,

preclearance

Columbia or

( Defendants I

dispute tha

the absence

I
t

(Id. at 8.)

was signed

proposed 'ch
8/

Generalr-

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y 29,

ne 6,

19BI the Council adopted Ehe proposed

def endant. leyor Eciward I' Koch signed the

gle Councilrnan; in arldition each of the f ive
5/

e City-' eras entitled to elect cwo

47, into law. Prior to the adopt'ion of Locaf

ty had 33 councilmanic dist'ricts ' each entitled

imatelY 300 of the 3000

and New York counties,

t,he at-large

increase the number of

35, and it' redrew

adoPted bY the CitY

eLection clistricts in

and hence relocates

ng places.

City concedes that these changes are within the
6/

he Voting Rights Actr; tha" the counties of

andNewYorkarepo}iticalsubcjivisions.uui".t'

and that the City was required Lo obtaj-n

fronr the District Court for t'he District of

rom the AtiorneY General:

Loc

th
tr
r/o
cI

an at-Iarge basis.

I Law 47 did not disturb

eats. It did, however,

ilmanic seacs from 33 to

. In addition, the PI?n

rEmorandum of Law at 13' ) ilor

it is not entitled to enforce

i preclearance:

There is no dispute anlong lht Partt:='
t the "change" or new counciLmanic redis-

"ting 
plan is "covered" by S 5 o{ :!"*ing nifnt= Act and thus, required to be pre-

ared before imPlenentat'ron

does the CitY

these changes in

lf a change occurred
en it is unlawful and

and was not Precleared,
may not be enfcrced'

June L2, 1981, within on: week after Loca1 Law 47

nto law, the Cit'y submicced, bY hand del ivery ' its

nges in councilmanic dist'ricts t'o the At't'orney

nd requested an expedited review of ics

5



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24

25

26

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28

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31

x2

.

I

subr,rission, sta{tnn that the first dat'e set' to circu}at'e
Lr---.i^

petitions wit'tr {"'e*"t t'o counci-l-manic seats was June 16'

I

19BI. on nugus'l 981, :n" Department of 
.Jus:t"" 

wrot'e ro

t,he Cicy, stati,f,S Ehat af ter' a caref uI exalflinat'ion of Ehe

City's initial fuUmission, it had been determined that the
I

informat'ion =."f was

. insufh'"'"nt to enable che Attorney General
.o"iiE;;i;; that the proposed chanses do not
nuul=E;;"';;;p;;;-ancl *i1l- noc have the errect'
ot'i"ltyi"; 

-;; abridg ing t'he righc to vote on

."";;L't'-;i ii"", coior-clr membership in a

t angulag e mi nor i cY I rouP '
I

(Letter da'-ed olusu=t '1, 1981' f rom Wm' Bradford Reynolds '
(l

Assistant etciorlneV General, Civil Rights Division' Department
'l

of Justice, Eo lr"oi"r, 
palomi.no, Esq. , counsel to l'lew York cit'y

i..{i"ting Commission' ) The Iecter specified eight

types of inforr{ration to be provided, including erection

resulrs by "ruf 
tion dis.tricr for. certain past erections, a

| , :- -^l^rian
map indicacinglanu election disEricts in reLation to t'he

l' <ist and the ProPosed new
councilnanic d[stricts as they now e)

I

disrricr rinesl, and data supPorr-ing or refuting the Cityrs

contehtion an"[a one reason that the submitted p]an does not
| ---r^^ t

contain addicilonal clistricts in which minorities comprise a

I re minoricY
subsEantial maljoricV of the populacion is that' ch

.4" o ispersed t'hroughout the City ' ( Id' at l-2 ' )

I

The 
lounu" 

4 letter alert'ed che Ci"'y t'hat t'he 50

dayswithinwticht'heAttorneyGenera]couldconsiderthe
ciEy,s submi"{ron would conmence on his receipt of the

I

information n{."ssary for the P'roPer eva}uation of the

I

submission, "la 
that in the absence of additional information

I

the Arrorney f"n"rur 
might cbject, ro Ehe proposed changes. rt

asked. rhe cirL ro norify rhe Department within twent'y days

l' --iLL LL^ e^Ari

whecher che alr., pranned r.o comply with the request'. (rd' at

3. ) |.l
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23

24

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26

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30

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The Ci t
will ccmply with

August 14, the re

categories, to wi

the Attorney Gene

additional inform

apparently has no

other seven categ

submission by SeP

The Present Lawsu

et aI. , was comme

black vocer resi

changes violated

for a prelirnina

changes on the g

requisite federa

t,he motion Princ

.changes to t.he A

the 60 days wich

would expire on

affected. On Ju

Herronrs motion

premature and th

conclusory

On

was commenced

including at

Puerto Rican

alleged that

Aug

by

Iea

or

has inforned the Attorney General that'

he reques E for additional inr-ormation.

uested information in one of the eight

, pas t election re'sul ts , was submi Eted to

aI. In addition, the Cicy has Provided sorne

cion in some of ah: other cat'eg6ries, but

yet comPlet,ed its comPliance in any of the

ries. Th.e City exPect-s to complete ics

ember 2L,198I.

approval unde r t he Ac t . Th e Ci t,y opposed

pally on the ground t.hat it. had submitted its

torney General pursuant to the Act, and chae

n which the Attorney General could objecc

ugust 11, 198I, PEior to the elections f-o be

e 11 ,1981, Ehe districc courr- cienied

or an injunction on the grounos that it was

t the allegations of the complaint vrere

st 5, 1981, Andrews, et aI . v.' Koch, et aL',

three registered voters residing in Brook1yn,

t one black vot,er and at lease one voter oE

ispanic heri cag e . The Andrews pl.ainti f f s

ough the total population of t,he City had

it
On

ts

The f ir E, of the present lawsuits, Herron v. Kolh-t

ced on June 16, 198I. The Plainciff, a

ng in Brooklyn, alleged that' the Cicyrs

he voting Rights Act. Herron quickly moved

injunction against inplementation of the

und that the City had noL obtained the

alt



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18

19

20

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22

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24

.25

2{i'

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28

29

30

3l

'32

declineo from 1,8

minoritY PoPtrlat'i

319,€,i6. TheY c

having tshe PurPo

minoritY council

councilmembers,

preclearance of

I98I, bY a Puert

Bronx, alleging

effect of discts

preclearance re

election schedu

until Precleara

councilnanic eI

redesign of the

Gerena-Valentln

enforcement of

.e Iec t ions , the

they seek to e

as tshey seek t

Citywide offic

of the CitY.

5,563 in 19?0 to 1,071' 030 in .I980' the

n had increased in that period by at least

ilengeo t'he Ci tyrs councilmanic changes as

and effect of "fteezing" Ehe 1970 nuritber of

embers while increasing' t'he number'of whit'e

nd alleged that' t'he Cit'y had not obeained

ts changes as required by S 5 of che Act'

Gerena-Valentin . Koch, €t aI., was commenced on September 2'

Rican voter and incumbent Councilman in the

hat the City's changes had the Purpose and

inating against Puerto Rican and other

Hispanic voeers '

On Aug st 31, I98I, H€rron filed an amended

complaint and, a Ieging that the City had not' obt'ained the

ired by S 5 of the Vot'ing Right's Act' moved

to enjoin Ehe Cj ty from enEorcing its changes ac the primary

ed for September I0, I98]' and thereafter

ce is Eorthcoming' Herron contends that the

ctions will be affected by the increase and

councilmanic dis t'ricts, and t'hat all elections

wiIl be affecte by the changes in elect'ion districts '

has trroved for a sinrilar injunction against

he changes at the primary and general.

atter being scheduled for NovembeE'3' 198I'

The Andrews PI ineif f s have j oined these lnotions insof ar as

oin the councilnanic elections but not insofar

enjoin the elections foi other loca1 and

s such as county district attorneys and l"layor

8-



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20

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25

26

28

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30

3l

'J2
:

plaintiffs have not

harmed if 'the elec

Pointing out that

prePartation for th

primarY candidates

of an injunction'

City .argues, a n

voters' rights '

The res

S 5 of the Vot'ing

We have no author

changes are like

We must decide o

(2) if ghe chang

satisfied, and (

in the Present

changes are cov

by S 5 before

has not obtain

fashion an ' aPP

S inc

enforcing its

preclearance

indicated in

against the

violation

The CitY pposes the mr:tions on the ground that the

d.emonstrated that t.hey wilr be irreparabry

ions are permitted to proceed as scheduleo '

uch time and moneY has been sPent in

prinrary eiection' the City contents that

will be irreparably harmed by the granting

If preclearance is not fortircoming ' the

election would adequately protect affected

DISCUSSION

onsibility of a three-judge court conrrened under

Rights Act is a substantively restricted one'

Lty to det,ermine whether or not the proposed

to have a discriminatory PurPose or effect'

Iy (1) whet'her the change is covered by S 5'

is covered, whether the S 5 requirements were

) if the r.equirements were not satisf ied ' what

reC by the Act' that Prqclearance was required

e changes could become effective' and that it

preclearance as required by S 5' Thus we must

priate remedY

section 5 provides that qhe City is barred from

hanEes if it fails to obtain one of the forms of'

quired by that section' the Supreme Court has

variety of circumstances that an injunction

ing of an erection is an appropriate remedy for

=t2
tl

remedY is aPProP

ssissippi, 42g U'S ' 642 '' 645-47 o97'7) ; Perkins
Warren Counr ,M

u.s. 37g, 383-8e (1971); Arlen v' statg Board
v. Matthews, 40

of Elections, 3 3 U.S. 544, 555 n'19' 558-59 (1959) '

This arrowly confined' task' is to an extent simplified

ases, because the City has conceded that its

t

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h

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3

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22

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26

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31

32
:

of

at

AI 1e v. State Board of Elections' supra , 393 U. S .

s s.

555:

Qaa

[A] f ter
submit
the pri
injunc
the S il'i=*3ii*i==i"" of the regisration
PUrsua r to s 5.

In Georgia v' Un
't' commenced

ted Sta,,es, 41I U.S. 526 (I973), a suL

by the Attorney ( eneral after he had rejected two State legisla-

g plans submitted to him' the Supreme Court

sion of a three-judge district court that Lhe

njoined from hoIding. elections pursuant to'its

its own decision, the Supreme Court had stayed

t's injunction, with the consequence that

in f act held'. This Proced'uraI circumstance'

the State has failed to-proving that
"n.""..i3t"e "rr."t-*ttt't 

f or s 5 aPprovar '

"i.-p"ity'has 
st'anding +'o obtain an

on asainst f ;'i;;; :"i?'"?i?1:i ^1"'lut"'

tive redistricti
affirmed the dtsc

State should be

plans. Prior to

the district cou

the election wa

however r. did no

injunction as

(L912) , the Su

elections sched:

\
pt.rlr,t the Supreme Court from af f irming the

oper. In HoIt v' City of *ichmond' 406 U'S' 903

changes were

General had

Supervisors,

sq

obj

eme Court granted an application to enjoin

led to be held days later ' where the proposed

arely within the meaing of S 5 and the Attorney

c+-ed. See also United Stat-es v' Board of

42 u. s. 642, 645 (1977) :

voting practj.ce or proc"gY:?-T?y^li":Non
enfo
has
ort
apr
enfo
ss
dist
v. S

On

above indicati

courts have qr

cases similar
\

States, 37 4 F.

vu uJ'rr9 vt qv r- - - Iitical- subdivisioned unless the State or PorrE:-cdl =:"::,,^-

":";il"i" 
-it= decraratorv . 

judgmen!, ?::i":
e Attorney Ceneral has declined to bbject to

;";;i-;"uililt"a to hj-n"', '. : -: -1::Tl:: ::;-;;";;;;-ah;a havg not. been =:Pj::t::"::;;";;;"ilr-;; enjoined bY. alv !h:-:::l"u??i:;';;il".-'i"-I ="i.1-6to"s-n1 ui' -" Y9!"': -P+.;: ;:X; # ir".li".= , igi u" s ' 544 ' ssz:ra-1

e basis of the strong linguage of S 5 and the

ns from the Supreme Court, a number of d'istrict

nt,ed injunctions against impending elections in

those presented here' ry" Beer v' United

upp. 351, 362 (D-D.c. LgT4) (tnree-judge court

10



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22

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28

'39 
,

30

JI

' 
32'

stating that " [s ection 5 itself enjoined any election utilizing

bouncaries specified in the plan. our injunction

Led out the statutory prohibition against

tions under tlre plan- Our order imposed no

the election of councilmen . beyond

statutory mandate."), final judgment on merits'

vacated and rernanded., 425 U.S. 130 (1976);
37 4 F. Supp. 3 F3 ,

ins v. Cit t Dal.las , 469 f .SupP . 739 , 7 42;43 (N.D'Te:: ' 1919)

t,) (it is "erninently more equitable to all

the new distric
. merely. sp

ccuncilnanic el

restriction uPo

observance of t

(tnree-judge co

concerned to de

in direct contr

Leflore Countv

758 (lt.o.IIiss.

States , 44 9 f. S

920 (lt.o. o.". ,
(I978); Pitts v

ay the election rather than to allow an election

vention of the Voting Rights Act.");Ilttti'**= *

oard. of Election Commissioners, 450 F'SupP' i65'

978) (three-judge court); Horrlz County v' United

pp. 990, gg6-g7 (D.D.c- 19?8) (three-judge court)

White v. Doughe tv Countv Board of Education, 43I F'Supp' 919'

17) (tnree-judge court), aff'd, 439 U'S' 32

Carter, 380 F.Supp- 4 (t't.O. Ga' L974) '

F. Supp. 1299

court recogniz

the enforcemen

the next elect

Commission, Ha

(three-judge c urt) , af f 'd mem. , 430 U. S. 924 (L977) , the court

rmic the challenged election co proceed, pending

If federal approval could noc be obtained, a new

be held promptly, following the old procedures'

hacl already been held under the challenged change:

n would merely have aLlowed incumbents to remain i:

chemselves been imprcperly elect'ed.

preferred to
preclearance.

election was t

Three election

so an lnlunctr

office who had

Other ccurts have denied injunctions for various

'redsons. In W Ison v. North Carolina State Board of Elections, 3i

M.D.N.C. I970) (three-judge court), for example, t:'

d t.hat the Proper remedy was an injunction against

of the unapproved changes, but declined to enjoin

on oue to its "proximity". In U.S., v. County

e Count Alabama , 425 F. SuPp. 433 (S. D. A1a. L976'.

I1



I

2

3

4

D

6

I

8

9

t0

1I

1'

l3

l4

t5

l6

li

ls

l9

20

2r

22

23

24

-.. rc

26

2i

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29

30

3l

no

cases, we

holding pr

Attorney G

submission

envi sioned

give effec

this concl

in their
the City h

l'

required o

Herron ins

LocaI Law

the change

petitions

have expe

and appar

effort to

r equested

motion was

of the cha

its -subrnis

that offic

a.discrimi

Althcugh t

in action

a.vis the

r espons ibi
City stat

the basis of all the circumstances of the present

nclude that an injunction prohibitirgthe City from

ry or general elections until such time as the

eral has acted or declined to act on the City's

rsuant to S 5 (or until some other preclearance

S 5 is obtained) is the most appropriate way to

to S 5. Among the principal factors that lead us

ion are the facts that the plaintiffs have done all

er to preserve their rights under the Act, and tha:

not done all it could to comply with the Act.

e plaintiffs have expeditiously done all that is

them to seek adequate protection of their rights.

tuted suit within two weeks of the Mayor's signing

, and immediately sought to enjoin the City's use c

This suit was brought on the first day councilrna:-

uld be fi1ed, arguably before any candidate wou1i.

Ia.rge amounts of money and energy in seeking off:

1y before the City had expanded much of the needbi

pleinent the planned chang.=.ry/ The injunction

s denied on the ground that, ES the City argued, U--

remature tu.utse the City had reguested Prec'l-eara;:

es from the Attorney General.

t the City has not obtained the Preclearance beceus

ion t,o the Attorney General was inadequa-te to Perni:

aI to determine whethe:: or not. the City's plan haC

atory purpose or will have a discriminatory effect'

e city attempts to avoid responsibility for the de1=

the Attorney General, we are unPersuaded that, v:'s

laintif f s, .tl:e City should not bear the complete

ity for its noncompliance with S 5. For.examp1e, t:

that. before delivering its submission to the Depar:

tice it telephoneC to inquire whether its proposeCment of Ju

1)



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20

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22

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21

26

2;

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30

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submis s ion

and upon de

more. Yet

General pla

information

ing party-

of addition

August 4, 1

which the C

facilitate
't

because it

intend to s

that it con

to facilita

Further, it

for this in

number of m

tion should

had itself

the course

Act was des

burden of pr

plani, see G

also.the bur

see

believe the

to submit to

kn,ew woulC

Th

injunctiv-e r

General even

could be rEq

Id be adequate and was advised, both in that call
ivery, that the Department would require nothing

51.26 of the Regulations promulgated by the Attornr

nly state that revievr will be facilitated if certai;

not required by S 5I .25, is prorid"d by the submitt

46 Fed. Reg. 876 (1981) Pour of the eight categor:

I information sought by the Attorney General on

81, vrere obvj-ously covered by this regulation, of

ty was aware. Knowing that this inforrnation would

ction, the City consciously elected not to provide :

as not technically required. Thus, while we do not

ggest that the City proceeded in bad faithr w€ find

ciously. chose a course of action that was not desigr

e a swift and complete review by the AtLorney Gener:

is scarcely an answer that the Attorney General ask:

ormation only after receiving statements irom a

nority groups opposing the City's plan: such oppos:

certainly have been anticipated by the Cit1,, which

eceived strenuous opposition from such groups in

f considering rvhat changes to adopt. Since the

gned to place on the submitting partl, not only the

ving nondiscrimination with respect to its voting

rg ia v. United States , supra, 411 U. S . .at 53I , but

en of any de1a1,s in the process

Perkins v. Ilatthews, supra, 4OO U.S. at 396, we

ity should bear the consequences of its decision nc'

the Attorney General serreral types

acilitate his decision.

City argues that we should deny the plaintiff

lief now, wii.h the thought that. if the Atto5ney

ual1y object,s to the City's changes, a new electicn

ired. I^le do not consider the ordering of a new

of. data that it

13



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1.,

2

3

4

5

6

I

8

I

.10

.lI

12

'13

l4

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.!5

:'6
17

I8.

2o

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3{

2it

26

2i

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30

3l

32

i;
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election

of these

violation,

free from di

shoulC not

normal attri

ment that in
because the

and that ih
the city hav

the election

agree that a

the present

interyal ene

an injur:cti
are at a los

hope to enjo

ing its 
"nur,,

fn

forward with

1t= changes

applicabilit

the Attorney

Cityrs failur
'nu1Iify the

Iy invite poi-

so easily

The

dny election

to

Ud

e the most appropriate remedy in the circumstances

e S, nor to be an adequate renredy here f or t-.he

sumed arguendo, of the plaintiffsr rights t-o vote
crimination. The right to vote is unigub ahrl

diluted either by forbidden acts or L.ry the
ion of voter turn-out at a re-held election. 17/

al1y, we are unpersuaded by the City's current arEr
unctive relief should be denied at this stage
ate of the primary election is but two ciays a\{ay,

he time since' Herron's first motion, candidates ani
spent irrecoverable time and money preparing for

- rf Herronts earlier motion was premature, and we

injuncti-on was properly denied on that basis, ani
otion is to be denied on the ground that in the
gies and monies have been expended that would make

work hardship on the ci,ty and the candidatesr w€

to guess at what time the voters could sensibly
a City, that has not complied with S 5, from enforc-

short, w€ believe that to a1low the City to go

he planned elections with the implementation of
without preclearance in a circumstance where the

of S 5 is conceded, and where a determination by

neral pursuant to S 5 has been impeded by the
to provide adequate i-nformation, would effectivel--

tended thrust of the section. Ir,e will not willing-
tical entities subject to S 5 to avoid its impact

defendants are therefore enjoined from conducting

n which the City's changes of the. number and

Fi

14



- boundaries o.f

disrricrs V/
Voting Rights

2

3'

1

b

6

I

7

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councilmanic

are enforced,

Act have'been

so RDERED.

\.v.

districts and the changes

until the provisions of

complied with. It is

of electioe

S5ofthe

Circuit Judge

15



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shall be h

wich 28 u. s

provides, i

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FOOTI.lOTES

ction 5 provides that " [a]ny action'r thereunder

r,l by a three-judge district court in.accordance

c. s 2284.

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

No roting qualification or prerequlsite to
uoting. or star)dard. praitice. or procedure shall
be impo-sed or applied b5' any. State or political
subdiviSion to denl' or abridge rhe riEht oi any
citizen of tlre United States to voie on account
of race or color. or in conLrar.e;r|.ion of !he guar.
antees set forLh in section 4 (f ) (2).

ction 4(f) of the Act, 42 U.S.C. S 1973b(f)

part:

t l ) 'l'lre ('otrgr cs. firr,ls tllrl r ot irrg dis,'r'ir,rir:ut intr :tguir:st
izens. of langrr:rg, nrinoriries is pcrr':r..itc :rnd ttntjotral in scrr1,r.cl

l:r

.h nrinorir^t'r.iliz.,.trs:11.,. frrurr errrirrrrrrrrr,lrt. irr rrlri,.lr tlrr.,i,rrrrirr,tnl
gturg. is otlrcr llrrrrr I'lrrgli"h. In:rrl,litiolr tlrev lut,'e beelt derrind
nl id,rr':rtiorr:rl r,;'lr,,rrrrrritit: lrv St:rtp rufl J6r:rl gi1\'er;rnlc;rts:
ulting in s,.r'ere dii:il,ilitir.s:rrril cirlrtirrr:irrg iliiieracv ili tl,e Englislr
1,;1,,,.|.'I'he ('or,,'rt'si furtl,rr'firrds llini. s'lr"re ltl,rte atrci'local's,,rgi. 

't'|1g ('orrgrrrr frrll,rrjrrr'ls Jlini. s'lr.re iti,rte. atrci. local
;.tf cn,,artr .t*"ii,,n. orrll in Enllish. 1,,,,g,r,,,J. rrrinoritr. cirizens
r.tclrrd*d f roht tr;r l1 ir'ilr:r t il

\. tn r.n!J nsn. l:lngu:rgf, nllllorlt \' clr tzen5'ng ilr tl,iellctor':ti Irro,'es:. Itr msnv rr,'lrs
tlre eounlr-r. this erclri..ion is;rs-grar':tlerl lr-r':rci: of plr-r'sical. eco'

ic. and l,olitic:rl irr(irrrid;rtiorr. T[e (' i .lecluresihat. in orde:

the I'nired'States Const itution. it is nerr's-iirr1' lo elinrit::rte such
'riniin:rtion b.r'prolrilriring Enslislr-onll elections. gnd ht pre..crib'
atl,er remediul derices.
(9) -\o voting qu:rlificntion or rrrertonisite to voting. or slnrrdrrrd.
ctice. or nro,l"dlrre slrall be inioosr.d'or annlied brr ent Srnte or
iti,',rl sul,Jirision to den.r'or rl,rlcig* r)'e rigiit o{ cnl'cit'rzt'n.of tlre
ircd St:rtr: t(r r'()t{, l,ct'rrise ire is a-rrrerr:lrer of o langrl,rge minorit.r'

lr.



.S 5 of the

the jurisd
(specified

or registr
and (2) th
50t of the

were regis

pres iden t i
t'

cieterminat

Federal Re

1973b( b) .

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23

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to

30

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+. State or political subdivision becones subject i:c

Act,. when ( 1) the Attorney General deterroines that

ction maintained any of a Iist of requirements

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

tion for voting on November 1, 1964, L958, or 1972;

Director of the Cehsus det-ermines that fewer than

persons of voting age residing in the jurisdiction

ered on the corresPonding dater oE voted in the

I election of the corresPonding month. Such

ons become effective uPon'publication in the

ister. Voting Rigirts Act, S 4(b) t 42 U. S.C. S

11



\\'henever a Stat
n'ith respect to u hic
in.scction- 4 tal
tcrminations maCe u
sccLion 4 r(b)
enact or seek to ad
cation or prerequ!si
practice. or procedtr
diffcrcnL from that i
ber l. 196.1. or u hene
di..-ision u'ith respect
set lorth in section
upon deterlninatio
sentence of section
eflect shall enact o
votinE qualifica-tion
standz-rd. practice. o
voting different fror
No'.'ernber 1. 1.968. or
cal -subdivision r.ith
bitions set ,orth in
b:r-sed upon determi
third sentence of
are in effect sha-ll e

an)' uoting quzlific
r'oting. or stanCard.
respcct ro voting diff
eifect on l-ovembgr I
tision ma)'institule
Siat es Dis'.rict Courl
bia for a dec'lara tor5'
fica t ion. F,rerrqu!site,
cedure Coe-q nol har e

hai'e the eflect of
right to sote on a

coniravention of the
seition 4lt(21,
until the court ente:'s
sha-ll be denied the r
compll' uitlr such q
sia-nciarC. practice.
That such qua.!if icati
practice. or p:ocedure
such proceeding if t
site. sta-ndard,'Practi
subrni'rted b]' the chie
propriate official of s

the -{tloine!: Cereral
zl h:-s. nOr. !nt el pc'-.ed
ia!'s after such sub.rn!
shoq-n. to facilitate
rrilhin sirt,l' Cal s afte
tornei'Ge;ieral hzs af
srrch .b.irciion e.iil
fir;::aiii e !niication
itrz-r. no ob.iect i6n s. i)
ne)' Gc.-,erel's failure
torl' jud;nrenl eniere
bar a subseqrren'r acti
oI such qualifi:zt
prictice. or procedur
ne-1' Gt';:erat atIir ;tzt
je<i.ion n'ill be r::ade s
foilc,u'ing receip: of a
Cc.-re:a! rne)' rescive i
-<u!.;: i.. sion if acid it io
h!s atlention Curing t
dzl period t*hich qo
-irct ion in acco;ia.nc
ic:.ion u:rdtlr tl.is srci
te;:rlrr'C b}'a couri
2p6 3 :'i'.h lht p-ro'.'isi

2e of ihe Uni
end any a:3pea
the Su.orene C

or polilical subCir':sion

!o r'oting. or staniard.
e n'ith respect to vot.ing
Iorce or ef f ect on Noletn'
er a State or political sub'
to u hich the prohibitions

4 ral br.ed
under the secondrr,a d e

4 rul . are in
see\ to aCminister an)'
prerequisite to voting. or

procldure u'i'rh resP(ct to
tlrat in force or efiect on
'henever a S:ate or Politi'
spcct to u'hiclr the Prohi-
tion 4 ral
ations mad: under the
ion 4 tul
act o:. seek to iCminister
t ion or pr<requisite to
actice. or prostdur3 u'ith
enl. from tha'. in force oi
I9??. such State cr sttbdi'
an action in lhe Unitcd
or the District of colum-
uds:nent that such qttali'
ta.ndard, practice. or Pro.
the purpose a:rd s'ill not
en-r'ing'or abricging the
nt of race or color. or in
guarani.ees set forth in

and unless enC
sucn juc3ment no Person
ht to vote for fzilure to
lif ication. preiL'qt,i.site.

r procedure: P;ot'idr4
n, prerequisite, s: andrrd.
ma)' be €nforced R'ithout

qualification. prerPqui-
, or procedure hes been
'Iegal off icer or oIher eP-
h Si at e or subd it'isio n t o

and the Attorn€]' Ge;re;-
n ob-irclion --'ithin sixt)'
;ion. or upon good cause
aJr er:peCited approlal
such sub:nlssion. the At-
irrr.a'rilel-r' inciica t ed tha(
be nade. i.'ellher an af-

]' the .{ttorrre-1' Gent ral
be rnaCe. nor the.{tlor-
to otrject. nor a declaiz-
undc'r this s*ction shall
to enjoin enforcenenl

prer<quisite, stantard.
ln the el enl the Attor-

el-r' indicztes'.he-i no ob-
i.hin '.he si.\t]-da]' p:;iod
ubrnission. the -qtiorne]'
e right to;eera:.-,!;e ihe
al inJorrns'.ion cc'rnes to
e re.'nainCer of the sisl,r--
ld othrrq'ise rrQuite rts-
riith this sec'.ion. .A"r-r'

shall be heaid ;.:;d Ce.
ti'rrEe Juigss iri accord-
of section::6i of titie

ed Stat.es Code
sha1l lie to

U.f 'L.

111

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



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Bronx ( Bronx

York County ) r

(Richmond Cou

9/ sec

applying to a

mlnor way.

s65-67 ( 1e69 )

reaPportionme

changes in th

Matthews, 400

The five boroughs, each of

unt-! ) r Brookiyn (Kings

wl:ich is a countY, are

Count-y ), l4anhattan (llew

and Staten fslantleerrs (Queens CountY) ,

tv).

will iamsburqh rnc. v. carey, 430 U.S. 144, 157 (L977), and

Iocations of polling places, Perkins v'

ion 5 has'nthe broadest Possible scoper'

y enactment altering the election larv in even a

len v. State Board of Elections, 393 U'S' 544t

In particular, S 5 covers new or revised

t plans, United Jewish Organizations of

u.s. 37g,387 (197]).

ew York State, three boroughs, the Bronxr.

Manhattan, are subject to the Act. 42 U'S'C'

a} for approval.. The City contends that it has

gh 'not in its initial submission on June 12;

plaintiffs contend that these changes have

mitted. For the PurPoses of these motions we

that the City has subrnitted these changes '

s 1973b(b), 3

(1971). See

Inc. v. Wilso

Fed. Reg. 12,354 (1970), 36 Fed. Reg' 5,809

nited Jewish Orqanizations of @

, 510 F.2d 512, 515-15 QA Cir. 1975), aff rd su'c

nom. United ewish Oroanizations of Wiltiamsburgh, Inc' v'

Carey, 430 U. . 144 11977); 45 Fed. Reg. 880 (I981) '

; appears to be a ciispute as to whether the City

the changes in election districts to the

Z/ rn

Brooklyn, and

g/ The

has submitted

At,torney Gene

done- so, alt

certain of t

never been s

shalI assume

LV-



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13

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City, includi

his behalf a

Andretvs comP

the charge t

the Cityrs

2',230,935 as

352,L21, vio

three-jud ge

under S 5 pf

various plai

t0/
cards sent b

their electi

until the e

tt/
the United S

Attcr-ney Gen

holding of t

preclearance

to the gener

sta'ued tha t ,

of the addit

Attorney Gen

thereafter,

November 3 e

if the hoped

did not obje

coming, the

lost or dilu

could weII r

Moreover, th

Po

No

na-Valentin also alleged other wrongs by the

g the rejection of. certain voter Petitions on

the removal of his name from the ballot. The

int asserts a variety of other claims, including

t the allotment of two at-large seats to each of

oughs when Brooklyn has a population of

compared with Staten Island's population of

ates their constitutional rights. As a

ourt we are convened only to hear claims arising

the Voting Rights Act and we do not address the

example r w€ were inf ormed at oral argument that -'-L

the City to all registered voters advising them c=

n districts and polling places were not mailei

of July.'

do we find attractive the alternative suggested b;

ates as amicus curiae. A repr.="rrt.tir. of the

ra1 urged that we deny'an injr:nction against the

e primary election on September I0, in hopes that

by the Attorney General r+i11 be forthcoming prior

1 election of November 3. That rePresentative

assunring the City were able to complete its provis:

onal information requested by September 2L, the

ral r..'ou1d hope that he could bct within thirty davs

nd that it would attempt to act in advance of the

ection. Such an alternatirre would fare well onI1'

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

t to the City's plans. If an objection were for"h-

igh-, to vote in an untainted primary would have be=

ed, and if a new primary election were ordered it

uire the postponement of the general election.

record in this matter of the activities of both

-V J



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City and th

cont l-d ence

City and fi

fn f.act, 'gv

21, the Att

the date of

that two i

the Act say

September t
Comptroller,

possibly ot

t2/

DeparLment of Justice give us no particular

at the hoped-for dates for final submission by. the

1 decision by the Attorney General will be met

if the City completes its submission by SepEember

ey General is allowed until November 20, well Pasi

he general election, to objec't. The result could 1

fid elections were held in circumstances in which

the City could not enforce its changes.

recognize.that this injunction wili prohibit the

primary elections f or such of f ices as Irlayor,
t

District Attorneys F,td borough Presidencies and

r contests in the Bronx, Brooklyn, and Manirattan.

-vr