Seek Public Education for Mississippi Negro Orphans

    Nos. 90-711 and 90-712

In The

Supreme Court of the United States
October Term, 1991

----------------♦----------------
LAWRENCE C. PRESLEY, individually 

and on behalf of others similarly situated,

vs.
Appellant,

ETOWAH COUNTY COMMISSION,
Appellee.

ED PETER MACK, and NATHANIEL GOSHA, III, 
individually and on behalf of others similarly situated,

vs.
Appellants,

RUSSELL COUNTY COMMISSION,

♦
Appellee.

On Appeal From The United States District Court 
For The Middle District Of Alabama

----------------♦----------------
BRIEF OF THE APPELLANTS

----------------♦----------------
E dward Still 

Counsel of Record 
714 South 29th Street 
Birmingham AL 35233-2810 

205-322-6631
James U. B lacksher 
John C. Falkenberry 
L eslie M. P roll 
Title Bldg., Fifth Floor 
300 21st Street North 
Birmingham AL 35203 

205-322-1100

Pamela Karlan 
University of Virginia 
School of Law 
Charlottesville VA 22901 

804-924-7810
L ani Guinier
Law School of University 
of Pennsylvania 
3400 Chestnut Street 
Philadelphia PA 19104-6204 

215-898-7032

July 1991

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

QUESTIONS PRESENTED

These consolidated cases present variations on the 
following basic question: What principles govern the 
power of local district courts to interdict the preclearance 
process under § 5 of the Voting Rights Act, 42 USC 
§ 1973c, by ruling that particular changes are beyond the 
scope of the Act and need not be submitted for pre­
clearance? The Act reserves to the U.S. District Court for 
the District of Columbia and/or the Attorney General of 
the United States plenary authority to determine whether 
changes affecting voting violate § 5. Local district courts 
are limited in § 5 cases to determining whether particular 
changes are within the scope of the Act and to enjoining 
voting changes that have not received the required pre­
clearance.

1. Did the Alabama district court improperly deter­
mine to be beyond the scope of § 5 a resolution or act 
which removes from individual county commissioners 
the power independently to manage road and bridge 
work in each commissioner's respective district and 
places that power in the hands of either the entire seven- 
member commission or a county engineer appointed by 
the entire commission?

2. Did the Alabama district court impermissibly 
confuse substantive questions of § 5 violation with ques­
tions about the scope of statutory coverage when it held:



11

a. that reallocations of authority of elected offi­
cials "will normally have to be shown to involve officials 
with different voting constituencies" before § 5 pre­
clearance is required;

b. that a change in the authority of individual 
county commissioners need not be submitted for § 5 
preclearance if it is "insignificant in comparison" to the 
county commission's authority over other matters; and

c. that, even though an unprecleared 1979 law 
now shows an obvious potential for discrimination, it 
need not be submitted for § 5 preclearance?

3. Did the Alabama district court overstep its lim­
ited statutory authority by refusing to defer to determina­
tions by the U.S. Attorney General that the changes in 
question do fall within the scope of § 5 of the Voting 
Rights Act and thus should be submitted for pre­
clearance?

QUESTIONS PRESENTED -  Continued



Ill

PARTIES IN COURT BELOW

The parties in the court below at the time of the 
judgment were plaintiffs Ed Peter Mack, Nathaniel 
Gosha, III, Lawrence C. Presley, and defendants Russell 
County Commission and Etowah County Commission.



IV

TABLE OF CONTENTS

Questions Presented............................................................. i

Parties in Court B elow .......................................................  iii

Table of C ontents.................................................................  iv

Table of Authorities.............................................................  vi

Opinions B elow .....................................................................  1

Jurisdiction...............................................................................  1

Statutory Provisions.............................................................  1

Statement of the C ase .........................................................  2

Argument.................................................................................  14

Summary of Argum ent...................................................  14

I. The district court misapplied the "potential 
for discrimination" test and decided the sub­
stantive issues reserved for the Attorney Gen­
eral or the District Court for the District of 
Columbia.....................................................................  17

A. The "potential for discrimination" test
looks to the nature of the change in the 
voting law, not to its particular circum­
stances in the jurisdiction............................  18

B. Congress drafted § 5 to centralize consid­
eration of substantive issues in two fora: 
the District Court for the District of 
Columbia and the Attorney General..........  23

C. The local district court improperly con­
sidered the substantive issues relating to 
the voting law changes in the instant 
appeals.................................................................  29

Page



V

2. The district court's consideration of the 
merits of the Russell County changes . .  32

2. The district court’s consideration of the 
merits of the Etowah County changes . .  35

D. The district court should have accorded 
deference to the decision of the Attorney 
General that the changes in this case must 
be submitted under § 5................................  37

II. The district court improperly departed from 
this Court's prior decisions requiring a State 
to preclear a transfer of responsibilities from 
elected to appointed officials or changes in 
powers of officials................................................... 38

A. This Court has held that the reallocation
of power from one public official to 
another must be submitted for pre­
clearance under § 5 ....................................... 39

B. District courts hearing similar matters
have likewise held that changes in the 
a llo ca tio n  of governm ental pow ers 
require preclearance....................................... 40

III. The district court decision regarding Russell 
County conflicts with decisions of this Court 
and the regulations of the Department of Jus­
tice regarding the proper "benchmark" for 
comparison of an unprecleared change in elec­

TABLE OF CONTENTS -  Continued
Page

tion-related law.........................................................  42

Conclusion...............................................................................  45



VI

TABLE OF AUTHORITIES
Page

C ases:

Allen v State Board of Elections, 393 US 544 (1969) passim

Beer v United States, 425 US 130 (1976)..........................  36

Bolden v City of Mobile, 571 F2d 238 (5th Cir 1978), 
aff'g 423 FSupp 384 (SD Ala 1976), rev 446 US 
55 (1980), vac and rem 626 F2d 1324 (5th Cir 
1980), after remand by US Supreme Court, 542 
FSupp 1050 (SD Ala 1982)............................................... 34

Broadhead v Ezell, 348 FSupp 1244 (SD Ala 1972) . . . .  34

Brown v Moore, 428 FSupp 1123 (SD Ala 1976), vac.
& rem. sub nom. Williams v Brown, 446 US 236 
(1980), after remand by US Supreme Court, 542 
FSupp 1078 (SD Ala 1982), aff'd 706 F2d 1103 
(11th Cir 1983), aff'd mem. sub nom. Board of
School Comm'rs v Brown, 464 US 1005 (1983)............  34

Chisom v Roemer, 59 USLW 4696 (June 20, 1991)........  26

City of Lockhart v United States, 460 US 125 (1983) . . . .  36

City of Pleasant Grove v United States, 479 US 462
(1987).......................................................................................  36

City of Rome v United States, 446 US 156 (1980), 
aff'g 472 FSupp 221 (D DC 1979) (3-judge court) 

....................................................................................... 16, 28, 43

Clark v Roemer, 59 USLW 4583 (June 3, 1991)........ 24, 25

Connor v Finch, 431 US 407 (1977)....................................  29

Corder v Kirksey, 585 F2d 708 (5th Cir 1978)................  34

County Council of Sumter County v United States,
555 FSupp 694 (D DC 1983) (3-judge co u rt)... 41



Vll

Dillard v Crenshaw County, 640 FSupp 1347, 649
FSupp 289 (MD Ala 1986)........................................passim

Dougherty County Board of Education v White, 439
US 32 (1978)...................................................................passim

Georgia v United States, 411 US 526 (1973).............. 19, 28

Hardy v Wallace, 603 FSupp 174 (ND Ala 1985) (3-
judge court).............................................................................42

Hendrix v McKinney, 460 FSupp 626 (MD Ala 1978)___34

Horry County v United States, 449 FSupp 990 (D DC
1978) (3-judge co u rt)...........................................40, 41, 42

Houston Lawyers' Ass'n v Attorney General of Texas,
59 USLW 4706 (June 20, 1991)......................................  26

Major v Treen, 574 FSupp 325 (ED Lou 1983)..............  31

McCain v Lybrand, 465 US 236 (1984)......................... passim

McDaniel v Sanchez, 452 US 130 (1981)..........................  27

Morris v Gressette, 432 US 491 (1977)..............................  30

NAACP v Hampton County Election Commission,
470 US 166 (1985).........................................................16, 37

Perkins v Matthews, 400 US 379 (1971). 16, 19, 20, 36, 37

Reynolds v Sims, 377 US 533 (1964)................................... 39

Robinson v Pottinger, 512 F2d 775 (5th Cir 1975).......  34

Rutan v Republican Party of Illinois,___U S ___ , 111
LEd2d 52 (1990)...................................................................  23

Sims v Amos, 340 FSupp 691 (MD Ala 1972), 365 
FSupp 215 (1973) (3-judge court).....................................34

TABLE OF AUTHORITIES -  Continued
Page



Vlll

South Carolina v Katzenbach, 383 US 301 (1966) 
.........................................................................14, 20, 24, 28, 29

Sumbry v Russell County, CA No. 84-T-1386-E (MD

TABLE OF AUTHORITIES -  Continued
Page

Ala 1985).................................................................................  13

Thornburg v Gingles, 478 US 30 (1986)...................... 28, 31

United States v Sheffield Board of Comm'rs, 435 US 
110 (1978).........................................................................16, 37

Statutes and Regulations:

28 CFR § 51 .54 ...........................................................17, 36, 44

28 CFR § 51.55 (1 9 8 7 )...........................................................  32

Voting Rights Act of 1965, Section 2, 42 USC 
§ 1973.....................................................................  3, 9, 21, 31

Voting Rights Act of 1965, Section 5, 42 USC
§ 1973c............................................................................... passim

Statutory H istory M aterials:

128 Cong. Rec. S6977-6982 (1 9 8 2 )..................

H.R. Rep. 227, 97th Cong., 1st Sess. (1981). 

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

Misc:

Dickens, Oliver Twist (1837-38)........................................... 45

Hurston, Their Eyes Were Watching God (First
Perennial Library ed. 1990)............................................. 23

O'Connor, "The Barber," in The Complete Stories
(1971)......................................................................................... 27

. . . 2 7  

. . .  27 

27, 32



OPINIONS BELOW

The opinion of the district court is unreported. The 
opinion of the district court is reproduced beginning at JS 
A-l. The order denying the motion to alter or amend the 
judgment is reproduced beginning at JS A-42.1

----------------♦----------------

JURISDICTION

The district court denied the requested injunction on 
1 August 1990 and denied the motion to alter or amend 
the judgment on 21 August 1990. The appellants filed 
their respective Jurisdictional Statements in this Court on 
26 October 1990. This appeal is taken under 28 USC 
§ 1253.

----------------- ♦ ------------------

STATUTORY PROVISIONS

Section 5 of the Voting Rights Act of 1965 (42 USC 
§ 1973c) is reproduced beginning at JS A-45. The Road 
Supervision Resolution and the Common Fund Resolu­
tion, adopted by the Etowah County Commission, are 
reproduced at A-48 and A-50, respectively, in the Presley 
Jurisdictional Statement. Alabama Act 79-652 is repro­
duced beginning at A-48 in the Mack Jurisdictional State­
ment.

♦

1 Unless otherwise noted, references to "JS" may be found 
in either Jurisdictional Statement at the cited page.

1



2

STATEMENT OF THE CASE

In 1964 the practice in both Etowah County and 
Russell County was that (1) the County Commission was 
elected at-large from residency districts; (2) the County 
Commission as a whole adopted a budget that divided 
the various road and bridge funds among the county 
commissioners in approximately equal amounts;2 (3) each 
commissioner had a free hand to determine the priorities 
of road and bridge repairs in his or her district; and (4) 
each commissioner oversaw the work of his or her own 
road crew. The two enactments in question here change 
the manner of sharing political power on the commission 
from one in which each member controlled a portion of 
the budget, with which he or she could satisfy constituent 
demands for road repairs, to a system that gives the 
white majority effective control over every decision con­
cerning the road and bridge system.

Presley v Etowah

The Adoption of Single-Member Districts

Before 1986, Etowah County was governed by four 
commissioners elected at large from residency districts 
plus a chair elected at large. In 1986 the United States 
District Court in the Middle District of Alabama found 
that Alabama's general at-large statute applicable to

2 Under Alabama law, many taxes are earmarked for the 
support of particular governmental functions. In these counties 
the principal sources of funds for the repair and construction 
of roads and bridges were the "7c gas tax" and the "Three-R 
tax."



3

Etowah County Commission (and several others) was 
invalid under § 2 of the Voting Rights Act of 19653 because 
the legislation had adopted and amended the statute with a 
racially discriminatory purpose.4 To remedy unlawful dilu­
tion of black voting strength caused by the prior at-large 
election system, later that year the Court approved a consent 
decree providing for the enlargement of the Etowah County 
Commissioners from five members elected at large to six 
members elected from single-member districts.5 The consent 
decree divided the County into six districts, with the single­
member district elections held over a four-year period, as the 
terms of the incumbents expired.6 Paragraph 3 of the Dillard 
consent decree provided:

3 Section 2 of the Voting Rights Act of 1965, 42 USC § 1973, 
provides in pertinent part:

(a) No voting qualification or prerequisite to 
voting or standard, practice, or procedure shall be 
imposed or applied by any State or political subdivi­
sion in a manner which results in a denial of abridg­
ment of the right of any citizen of the United States 
to vote on account of race or color . . . .

4 Dillard v Crenshaw County, 640 FSupp 1347, 649 FSupp 
289 (MD Ala 1986).

5 Dillard v Crenshaw County, CA No. 85-T-1332-N (MD Ala, 
12 November 1986). The Commission has been expanded to 
seven members until 1993, to allow the at-large chairman to 
complete his term.

6 Districts 5 and 6 were the only ones to elect representa­
tives in the special, court-ordered elections in December 1986. 
Commissioners Presley and Williams took office in January 
1987. Single-member district elections were held in Districts 2 
and 3 in the regular 1988 elections, and in Districts 1 and 4 in 
1990. All the Old four were re-elected.



4

When the District 5 and 6 Commissioners 
are elected in the special 1986 election, they 
shall have all the rights, privileges, duties and 
immunities of the other commissioners, who 
have heretofore been elected at-large, until their 
successors take office.

New District 5 is the only district that is majority 
black. Plaintiff Presley, who is black, was elected by the 
voters of District 5 in a special election in December 1986; 
Billy Ray Williams, who is white, was elected from Dis­
trict 6. All five of the pre-1986 incumbent commissioners 
were white. According to the 1990 Census, the population 
of Etowah County is 13.8% black.

The Former System for Road Work

Under the at-large election system, the commission­
ers met one day a week to carry out the few legislative 
responsibilities they had as a body. During the other 90 
percent of their official time, they were physically present 
in their respective districts running their respective road 
and bridge operations. Hitt Depo. at 10-11.7 The chair 
was the only commissioner who worked at the court­
house. The chair managed the courthouse buildings and 
grounds and supervised the financial records but had no 
part in the road and bridge operations. Hitt Depo. at 15, 
24.

The four associate commissioners were "road" com­
missioners; their residency districts were administrative

7 The case was submitted to the three-judge court on 
depositions and exhibits, so there is no formal transcript of a 
trial.



5

"road" districts, and each had virtually unfettered 
authority to run the road and bridge operations in his 
district (all Etowah County commissioners have been 
males). Each road commissioner had sole management 
authority over all construction and repair of roads, 
bridges and the like in his district, including equipment, 
employees, and road subcontracts. Hitt Depo. at 10-11. 
Each commissioner had a shop in his district and con­
trolled his own budget; road and bridge funds were 
divided equally among the four road districts. Hitt Depo. 
at 20-25. Some decisions such as contracts had to be 
approved by the entire commission, but the commission 
always deferred to the choices of the commissioner in 
whose district the work would be performed, according 
to the testimony of Chairman Hitt. JA 54. Chairman Hitt 
had lost his supervisory powers over the road and bridge 
budget as a result of a local act passed in 1985. Hitt Depo. 
at 17, 20.

The construction and maintenance of roads and 
bridges is the one area of county government over which 
the county commission has effective political discretion. 
The commission has no taxing authority. JA 64. It is 
completely dependent on revenues established by state 
law and mostly received from state agencies. JA 55-57. A 
review of the county's budget shows that virtually all the 
general fund and all other special funds are dedicated to 
predetermined spending requirements and/or are con­
trolled by other elected officials, such as the sheriff, the 
probate judge, tax assessor, etc. E.g., PI. Ex. L.



6

The Reaction of the Incumbents to the New Commissioners

When the District 5 and 6 commissioners took their 
seats in January 1987, the four incumbent at-large com­
missioners ("the Old Four") refused to yield any of their 
road and bridge powers, notwithstanding the require­
ment of the Dillard decree. The Old Four continued to 
operate as though there were no new members of the 
commission. The Old Four agreed on the road and bridge 
budget among themselves and submitted it directly to the 
county clerk, Commission Chairman Hitt testified. Hitt 
Depo. at 29. They informed the new members (by a "To 
Whom It May Concern" letter) that the commissioners for 
Districts 1 through 4 "agree to do the maintenance on all 
the county roads in District 5 and District 6. . . . " PI. Ex. 
Y.8 In effect, the Old Four commissioners banished Pre­
sley, Williams, and Chairman Hitt to political limbo. 
Chairman Hitt testified that Presley was left with no 
administrative duties at all. Hitt Depo. at 74.

The 1987 Resolutions

The Old Four formalized their monopoly over road 
and bridge operations in the resolutions at issue in this 
action, adopted 25 August 1987. One resolution ("the 
Road Supervision Resolution"), adopted over the objec­
tions of the new commissioners, provides that each of the 
Old Four commissioners "shall oversee and supervise the

8 The case was submitted to the district court on deposi­
tions and exhibits, so there is no record citation to the intro­
duction and admission of exhibits as usually required by 
Supreme Court Rule 24.5.



7

road workers and the road operations assigned to the 
road shop[s] located in District 1[, 2, 3, and 4]" and "shall 
jointly oversee, with input and advice of the County 
Engineer, the repair, maintenance and improvement of 
the streets, roads and public ways of all of Etowah 
County." Road Supervision Resolution, 1-4, and 7 (jS 
A-48). The resolution used the numbers of the old rural 
districts, even though one of the road shops is now 
located in Presley's District 5. That resolution assigned 
Commissioner Presley to "oversee and supervise mainte­
nance employees and the repair, maintenance and opera­
tion of the Etowah County Courthouse" and the other 
new com m issioner to "oversee and supervise the 
employees of the Engineering Department of Etowah 
County and the operations of that department." Road 
Supervision Resolution, n  5 and 6 (JS A-48). It further 
directed the two new commissioners to "jointly oversee 
the maintenance and operations of the Etowah County 
Farmers Market." Road Supervision Resolution, H 8 (JS 
A-48). Even though one of the four road shops is now 
physically located in the majority black district repre­
sented by appellant Presley, the District 2 commissioner 
continues to supervise it.

The second resolution ("the Common Fund Resolu­
tion ), also adopted over the objections of Presley and 
Williams, formalized the control of the Old Four commis­
sioners over the entire road and bridge budget. Continu­
ing the pre-resolution and pre-D illard  practice of 
allocating the road and bridge budget equally among all 
commission districts would have required six shares 
instead of four. So the Old Four resolved to discontinue 
formal allocation of the budget among the districts. They



8

instituted a new common fund that the Old Four would 
control jointly, as a formal matter, and that they could 
reallocate among themselves informally.

[A] 11 monies earmarked and budgeted for 
repair, maintenance and improvement of the 
streets, roads and public ways of Etowah 
County [shall] be placed and maintained in 
common accounts, not be allocated, budgeted or 
designated for use in districts, and [shall] be 
used county-wide in accordance with need, . . . .

Common Fund Resolution, H 1 (JS A-49). This second 
August 1987 resolution made the Old Four's monopoly 
explicit by assigning control of the road work to "the 
road workers of Etowah County operating out of the four 
present road shops located in the County." Common 
Fund Resolution, *1 2 (JS A-49). The remnants of the 
formal allocation of the road and bridge budget among 
Districts 1-4 were retained in a grandfather clause, which 
preserved the control of each at-large incumbent over any 
unspent FY 1986-87 monies in his road district budget. 
Common Fund Resolution, f  3 (JS A-49).

Each September when the commission adopts the 
annual county budget, the "no" votes of Presley and 
Williams have no effect whatsoever on the Old Four's 
plans for road and bridge operations. PI. Exs. Q, M and L. 
The Old Four make up the road and bridge budget 
among themselves, send it directly to the county clerk 
bypassing the Chairman and District 5 and 6 commission­
ers, and then vote their budget through with their solid, 
four-vote majority. JA 58; Hitt Depo. at 29, 32-34; PI. Exs. 
Q, M, and L. Informally, the Old Four continue the old 
practice of allocating control over equal shares of the 
road and bridge budget among themselves. JA 76-77.



9

The Old Four divided $1.4 million among their four 
districts in FY 1987, $1.9 million in FY 1988, and $2.1 
million in FY 1989. JA 76. Each of the Old Four has 
virtually unfettered authority over his one-fourth of the 
road and bridge budget. Each decides how the money is 
to be spent, whom to hire, whom to promote, and with 
whom to contract. JA 58-59; Hitt Depo. at 32, 63, 68-69; 
Presley Depo. at 10-11. The county clerk continues to 
report the amount of road and bridge funds spent in each 
of the four former districts, with no road and bridge 
expenditures in Districts 5 and 6. The District 5 and 6 
commissioners must come, hat in hand, to one of the Old 
Four to plead their case for road work within their dis­
tricts. Hitt Depo. at 71; Presley Depo. at 23-32.

The Present Suit

Commissioner Presley, representing a class of black 
citizens in Etowah County, sued to enjoin the enforce­
ment of the two resolutions unless they were precleared 
under § 5 of the Voting Rights Act.9 A three-judge district

9 Appellants Presley, Mack, and Gosha and William Amer­
ica (Escambia County commissioner) had earlier brought suit 
under § 2 of the Voting Rights Act and Title VI of the Civil 
Rights Act of 1964. Presley claimed that the two Etowah county 
resolutions were being administered in a discriminatory way. 
Mack and Gosha claimed that the county unit plan in Russell 
County was being administered in a discriminatory way. Later, 
when they discovered that the resolutions and the change to 
the county unit plan had not been submitted for preclearance, 
they amended their complaint to ask for relief under § 5. Their 
other claims (under § 2 of the Voting Rights Act) are still 
pending in the district court. Commissioner America dismissed 
his claims against Escambia County.



10

court issued an injunction against only the Road Supervi­
sion Resolution. The district court held that "the potential 
for discrimination posed by" the Road Supervision Reso­
lution "is blatant and obvious;" that the "resolution strip­
ped the voters in districts 5 and 6 of any electoral 
influence over . . . commissioners" responsible for road 
management, JS A-20. It therefore enjoined the enforce­
ment of the Road Supervision Resolution unless Etowah 
County obtained preclearance of it within 60 days, JS 
A-28. Etowah County has not submitted the Road Super­
vision Resolution to the Attorney General or the District 
Court for the District of Columbia.

The district court, in a split opinion, held that 
Etowah County did not need to submit the Common 
Fund Resolution for preclearance for the following rea­
sons:

It is true that the reallocation of authority 
embodied in the common fund resolution 
involved officials with different voting constitu­
encies. . . . We conclude, however, that the real- 
location of authority embodied in the common 
fund resolution was, in practical terms, insig­
nificant in comparison to the entire Commis­
sion's authority, both before and after the 
disputed change, to allocate funds among the 
various districts, and thus to effectively autho­
rize or refuse to authorize major road projects 
on the basis of a county-wide assessment of 
need.

JS A-18-19. One district judge dissented from this conclu­
sion, JS A-32 et seq. Judge Thompson focused on the way 
in which the commissioners actually used their powers 
and concluded, "A commissioner's real authority lies 
. . . in how those funds are used after they are allocated."



11

JS A-32. The district court unanimously agreed that the 
Road Supervision Resolution should be enjoined unless it 
were submitted for preclearance. ]S A-20-21 and A-27.

Mack v Russell County

Alabama Act 79-652 transferred from the Russell 
County Commissioners to the Russell County Engineer 
all functions, duties, and responsibilities for roads, high­
ways, bridges, and ferries. This centralized control is 
called "the unit system" in Alabama. Before the Act pas­
sed, each commissioner had controlled the road work in 
his or her own district.

Despite its transfer of important governmental func­
tions from the supervision and control of elected county 
commissioners to the (appointed) county engineer, nei­
ther the County Commission nor any State official sub­
mitted Act 79-652 for preclearance. The Department of 
Justice made a written request in 1989 that it be submit­
ted. When the County refused to do so, the appellants 
Mack and Gosha brought this action.

At the time the 1979 act was adopted, the Russell 
County Commission consisted of five commissioners 
elected at large from four residency subdistricts; three 
rural districts had one commissioner each and Phenix 
City (the largest city in the county) had two seats on the 
commission. The commissioners residing in the rural dis­
tricts exercised exclusive discretion and control over the 
road shops, road equipment, materials, expenditures and 
employees in their respective districts. Each commis­
sioner was responsible for maintaining a county work­
shop and for maintaining a road crew. Belk Depo. at 18;



12

Adams Depo. at 16. Before the adoption of the unit sys­
tem, each "commissioner had a road crew that he was in 
charge of and that he -  even though he had a foreman, 
you know, he made the assignments and pretty generally 
called the shots on what work was done and where and 
so forth." Adams Depo. at 11. Former Representative 
Charles Adams was the primary sponsor of Act 79-652.

Each commissioner also controlled hiring, firing, and 
assignment of personnel in his or her road shop. Belk 
Depo. at 12. This amounted to substantial employment 
authority, because the road and bridge system is a major 
employer in Russell County government. Adams Depo. at 
22. Road and bridge expenditures represent the majority 
of the county's budget and of public monies over which 
the county government exercises discretionary authority. 
The budget of the county engineer is $1.8 million. McGill 
Depo. I at 18. Before implementation of Act 79-652, 
appropriations from the budget were made on the basis 
of road and bridge districts. McGill Depo. I at 18, 19, 22.

In May 1979, the Russell County Comm ission 
adopted a resolution that placed all county road construc­
tion, maintenance, personnel and inventory under the 
supervision of the County Engineer and requested the 
Russell County legislative delegation to enact this change 
as law. Def. Ex. 1, Belk Depo. In July 1979 the Alabama 
Legislature passed Act 79-652, which converted the pro­
cess for governing the road and bridge budget and opera­
tions to a "unit system." The Act provides:

All functions, duties and responsibilities for the 
construction, maintenance and repair of public 
roads, highways, bridges and ferries in Russell



13

County are hereby vested in the county engi­
neer, who shall, insofar as possible, construct 
and maintain such roads, highways, bridges and 
ferries on the basis of the county as a whole or 
as a unit, without regard to district or beat lines.

The Russell County Commission is now composed of 
seven commissioners elected from single-member dis­
tricts, under a consent decree entered 17 March 1985, in 
Sumbry v Russell County, CA No. 84-T-1386-E (MD Ala). 
The decree provided for elections from single-member 
districts beginning in 1986 and was designed to remedy 
unlawful dilution of black voting strength caused by the 
prior at-large election system. Nathaniel Gosha, III, and 
Ed Peter Mack, the first black county commissioners in 
Russell County history, were elected in 1986 from Dis­
tricts 4 and 5, respectively, each of which has a black 
voter majority. According to the 1990 Census, the popula­
tion of Russell County is 38.6% black.

Commissioners Mack and Gosha (appellants in this 
Court) petitioned the district court for an injunction to 
restrain appellee Russell County Commission from 
implementing Act 79-652, unless the statute receives pre­
clearance under § 5 of the Voting Rights Act, 42 USC 
§ 1973c.10 The district court ruled Russell County did not 
have to submit Act 79-652 for preclearance. JS A-16-18. 
Judge Thompson dissented, partly on the grounds that 
the at-large commissioners were de facto accountable to 
the voters in their respective districts. Thus, he argued, 
there had been a shift of responsibility from district com­
missioners to an appointed at-large official. JS A-34-35.

----------------- «------------------

10 See footnote 9.



14

ARGUMENT

SUMMARY OF ARGUMENT

Section 5 of the Voting Rights Act of 1965 prohibits a 
covered State or locality from implementing any change 
in its standards, practices, or procedures with respect to 
voting until it obtains preclearance -  that is, a determina­
tion that the proposed change has neither the purpose 
nor the effect of denying or abridging the right to vote on 
account of race -  from the Attorney General of the United 
States or the District Court for the District of Columbia. 
The purpose of § 5 was "to shift the advantage of time 
and inertia from the perpetrators of the evil to its vic­
tims," South Carolina v Katzenbach, 383 US 301, 328 (1966).

A local three-judge district court must determine 
only whether the voting change in question has a "poten­
tial for discrimination." Dougherty County Board of Educa­
tion v White, 439 US 32, 42 (1978). This Court intended for 
local district courts to limit their inquiry to the nature of 
the voting-law change, not to search for discrimination in 
the circumstances of the particular factual situation.

Congress drafted § 5 to centralize consideration of 
the substantive preclearance issues in two fora: the Dis­
trict Court for the District of Columbia and the Attorney 
General. To reverse the time-consuming, expensive, and 
legally burdensome case-by-case method of challenging 
proliferating changes in voting practices case by case, 
Congress also placed all the burdens of proof and delay 
on the covered jurisdictions. The district court below 
fundamentally frustrated this statutory enforcement 
scheme and exceeded its jurisdiction by engaging in sub­
stantive consideration of the merits of the changes in



15

question and placing the burden of proof on the private 
plaintiffs.

The district court below acknowledged that " 'real- 
location[s] of authority' among government officials or 
bodies may constitute changes affecting voting under sec­
tion 5." JS A-10 (emphasis added). The district court 
should have proceeded no further once it found that the 
changes at issue had "the nature of the changes in election 
practices . . . which required preclearance. . . . "  McCain v 
Lybrand, 465 US 236, 250 n.17 (1984) (emphasis added). 
Every change affecting voting is required by statute to 
receive preclearance, even one that seems innocent of 
discriminatory purpose or effect. Only the D.C. District 
Court and the Attorney General are empowered to 
declare the change free of discrimination. The District 
Court foreclosed that consideration.

The changes in this case reallocate significant power 
from each commissioner to the whole commission (acting 
by majority vote) or to an official appointed by the whole 
commission. This Court has held that such power real- 
locations must be submitted for preclearance under § 5. 
Allen v State Board of Elections, 393 US 544 (1969); McCain 
v Lybrand, 465 US 236 (1984).

The reasons cited by the Alabama district court for 
refusing to require Section 5 preclearance of the chal­
lenged changes went beyond the narrow question of the 
Act's scope and impermissibly involved the local court in 
substantive issues of whether violations exist: (1) the 
Russell County change affected officials responsible to 
the same electoral constituency; (2) one Etowah County



16

change seemed relatively insignificant to the court major­
ity; and (3) even though the Russell County change has 
an obvious discriminatory impact today, the potential for 
discrimination would not have been as obvious in 1979 
when the law was enacted. The district court's analyses 
were wrong even as matters of substantive law. But these 
are questions Congress has reserved exclusively for the 
District of Columbia court and the Attorney General, and 
the Alabama district court exceeded its statutory author­
ity even by considering them.

The district court should have accorded deference to 
the decision of the Attorney General that the changes in 
this case must be submitted under § 5. This Court has 
held that the Attorney General's decisions on coverage of 
the Act are entitled to great deference and has specifically 
relied upon the Attorney General's decisions to apply § 5 
to certain election-law changes. United States v Sheffield 
Board of Comm'rs, 435 US 110 (1978); NAACP v Hampton 
County Election Commission, 470 US 166, 179 (1985); 
Dougherty County Board of Education v White, 439 US 32, 39 
(1978); Perkins v Matthews, 400 US 379, 390-94 (1971).

The Russell County Commission had changed to a 
"unit system" in 1979, but had never submitted the 
change for preclearance. In 1985 the Commission changed 
from at-large elections to single-member districts. In 
assessing the 1979 unprecleared change, the court below 
looked only at the conditions immediately "before and 
after the 1979 change," JS A-21, when the county commis­
sion was still elected at large. In City of Rome v United 
States, 446 US 156 (1980), this Court explained that when 
a change is not submitted until years after its enactment, 
the change is to be analyzed in light of the now-existing



17

system rather than in light of the system existing at the 
time the unprecleared change was enacted. The Justice 
Department regulations are to a similar effect. 28 CFR 
§ 51.54(b).

I. The district court misapplied the "potential for dis­
crimination" test and decided the substantive issues 
reserved for the Attorney General or the District 
Court for the District of Columbia.

Section 5 of the Voting Rights Act of 1965 prohibits a 
covered State or locality from implementing any change 
in its standards, practices, or procedures with respect to 
voting until it obtains from the Attorney General of the 
United States or the District Court for the District of 
Columbia a determination that the proposed change has 
neither the purpose nor the effect of denying or abridging 
the right to vote on account of race.11 "The legislative

11 Section 5 of the Voting Rights Act of 1965, 42 USC 
§ 1973c, provides, in pertinent part:

Whenever a [covered] State or political subdivi­
sion . . . shall enact or seek to administer any voting 
qualification or prerequisite to voting, or standard, 
practice, or procedure with respect to voting differ­
ent from that in force or effect on November 1,
1964, . . . such State or subdivision may institute an 
action in the United States District Court for the 
District of Columbia for a declaratory judgment that 
such qualification, prerequisite, standard, practice, 
or procedure does not have the purpose and will not 
have the effect of denying or abridging the right to 
vote on account of race or color, . . . and unless and

(Continued on following page)



18

history [of § 5] on the whole supports the view that 
Congress intended to reach any state enactment which 
altered the election law of a covered State in even a minor 
way." Allen v State Board of Elections, 393 US 533, 566 
(1969).

A. The "potential for discrimination" test looks to 
the nature of the change in the voting law, not to 
its particular circumstances in the jurisdiction.

Under the § 5 case law, a local district court must 
determine only whether the voting change in question 
has a "potential for discrimination." Dougherty County 
Board of Education v White, 439 US 32, 42 (1978). If such a 
potential exists the local court's responsibility is at an 
end: it must simply enjoin the practice; it cannot deter­
mine whether the potential has been realized. In this case 
the district court improperly used the "potential for dis­
crimination" standard as an inquiry into the plaintiffs' 
likelihood of success on the merits.

This Court's decisions on "potential for discrimina­
tion" reveal that it intended the local district courts make 
an inquiry into the nature of the voting-law change, 
rather than into the circumstances of the particular fac­
tual situation. This Court first used the "potential for 
discrimination" rubric in Dougherty, 439 US 32, 42 (1978):

(Continued from previous page) 
until the court enters such judgment no person shall 
be denied the right to vote for failure to comply with 
such qualification, prerequisite, standard, practice, 
or procedure . . . .



19

"Thus, in determining if an enactment triggers § 5 scru­
tiny, the question is not whether the provision is in fact 
innocuous and likely to be approved, but whether if has a 
potential for discrimination." The first clause of that for­
mulation negates any inquiry into the eventual outcome 
of the preclearance process. The Court made this point 
even more forcefully by the cases it cited in support of its 
proposition: Georgia v United States, 411 US 526, 534 
(1973); Perkins v Matthews, 400 US 379, 383-385 (1971); 
Allen v State Board of Elections, 393 US 544, 555-556, n 19, 
558-559, 570-571 (1969). See, Dougherty, 439 US at 42.

In Georgia v United States, the Court held that redis­
tricting -  by its nature, without regard to its particular 
circumstances -  possesses a potential for discrimination.

The Perkins Court approvingly quoted the originating 
district judge in the case on the role of the local three- 
judge district court:

The only questions to be decided by . . . the 
three judge court to be designated, is whether or 
not the State of Mississippi or any of its political 
subdivisions have acted in such a way as to 
cause or constitute a voting qualification or pre­
requisite to voting or standard, practice or pro­
cedure with respect to voting within the 
meaning of the Voting Rights Act of 1965, which 
changed the situation that existed as of Novem­
ber 1, 1964 . . . .

Perkins, 400 US at 384. The Perkins Court expanded on 
this point by holding that the local district court may not 
consider

what Congress expressly reserved for consider­
ation by the District Court for the District of



20

Columbia or the Attorney General -  the deter­
mination whether a covered change does or 
does not have the purpose or effect "of denying 
or abridging the right to vote on account of race 
or color."

Perkins, 400 US at 385.

In Allen the Court held that a change from district to 
at-large voting could effect a dilution of voting power; 
that a change from election to appointment for an office 
"could be made either with or without a discriminatory 
purpose or effect;" that increasing the requirements for 
independent candidates to gain a ballot position has a 
"substantial impact" on voting; and that a new procedure 
for casting write-in votes "is different from the procedure 
in effect when the State became subject to the Act." Allen, 
393 US at 569-570. This Court did not, however, deter­
mine for itself whether the Mississippi and Virginia 
changes at issue in Allen and its companion cases were in 
fact discriminatory; that job was properly left, in the first 
instance, to either the Attorney General or the District 
Court for the District of Columbia.

In summary, these cases looked to whether the type 
of change might cause dilution of the black vote some­
where under some circumstances. If it is possible for the 
local court to hypothesize some circumstances under 
which the change might cause dilution, then the jurisdic­
tion cannot avoid the simple burden of submitting its 
election-law change to the Justice Department or District 
Court for the District of Columbia.

Since the purpose of § 5 was "to shift the advantage 
of time and inertia from the perpetrators of the evil to its 
victims," South Carolina v Katzenbach, 383 US 301, 328



21

(1966), the meaning of the holding in Dougherty becomes 
clear. The plaintiffs need only show that the enactment is 
of a type that could be discriminatory. The plaintiff is not 
required to show that the new enactment actually is 
discriminatory; if that were the standard, every § 5 
enforcement proceeding would be turned into a § 2 case.

In these cases, if the district court had looked only at 
the nature of the changes, rather than at possible justifica­
tions for the changes, the district court would have con­
cluded there was a potential for discrimination in the 
following ways:

(1) Just as the voting power of the black electo­
rate is submerged when at-large elections are used where 
there is racially polarized voting,12 the change from a 
district road system to a unit system may dilute the 
voting power of a black electorate concentrated in a sin­
gle district. In an at-large election, blacks may be unable 
to elect representatives of their choice; if the county 
adopts single-member districts for elections and a unit 
system for road work, black voters may be unable to have 
their elected representatives carry out the policies desired 
by the black electorate.

(2) Changing from individual district decisions 
to group (i.e., commission) control over all decisions sub­
merges the political power of the district constituency by 
making such decisions dependent upon the votes of six

12 For this reason a change from district to at-large elec­
tions must be precleared. Allen, 393 US 544.



22

commissioners, five of whom were not answerable to the 
voters in the particular district.13

(3) If a minority group was able to turn to one 
sympathetic person on a county commission, and the 
commissioner was able to respond to the minority's par­
ticularized needs, a change to group decision making 
would submerge the power of that commissioner, with­
out regard to the method of election of commissioners.

(4) Under district-based decisions, individual 
commissioners could use their road budgets to bargain 
with other commissioners for constituent services of all 
sorts. The change to group-based decision making 
changes that balance of power, so that the commissioners 
representing black voters have no bargaining power 
unless the commissioners of the white districts are 
divided on an issue. As Justice Scalia, joined by the Chief 
Justice and Justices O'Connor and Kennedy, recently 
noted in his dissent,

Patronage, moreover, has been a powerful 
means of achieving the social and political inte­
gration of excluded groups. . . . The abolition of 
patronage, however, prevents groups that have 
only recently obtained political power, espe­
cially blacks, from following this path to eco­
nomic and social advancement.

13 The last three aspects of the appropriation and expendi­
ture process can also be found in the block grant programs of 
the federal government. Under such programs a fund of money 
is divided among the several States, with each State deciding 
how the money is to be spent within that State. The recipient of 
the block grant (a State or one commissioner) has the freedom 
to respond to local constituents in deciding how to spend the 
block grant within the State or commission district.



23

Every ethnic group that has achieved 
political power in American cities has used 
the bureaucracy to provide jobs in return 
for political support. It's only when Blacks 
begin to play the same game that the rules 
get changed. Now the use of such jobs to 
build political bases becomes an "evil" 
activity, and the city insists on taking con­
trol back "downtown."

Rutan v Republican Party of Illinois,___U S ___ , 111 LEd2d
52, 88 (1990) (citations omitted).14

This case is about an analogous form of political 
power: the ability of commissioners to act with relative 
autonomy within their own districts so they may provide 
services useful to their black constituents, but which a 
white-majority commission or county engineer may not 
provide to black constituents.

B. Congress drafted § 5 to centralize consideration 
of substantive issues in two fora: the District 
Court for the District of Columbia and the 
Attorney General.

Congress has given a "substantial" watchdog respon­
sibility to the U.S. District Court for the District of 
Columbia and the Attorney General of the United States 
to ensure that covered jurisdictions do not implement 
changes affecting voting unless and until state or local

14 Zora Neale Hurston, an African American writer, made 
the same point in one of her novels: "Yo' common sense oughta 
tell yuh de white folks ain't goin' tuh 'low [a colored man] tuh 
run no post office." Zora Neale Hurston, Their Eyes Were Watch­
ing God 37 (First Perennial Library ed. 1990).



24

officials demonstrate they are free from discriminatory 
purpose or effect. The Section 5 preclearance process "is 
perhaps the most stringent . . . and certainly the most 
extraordinary" of the new remedies adopted by Congress 
in 1965 "to 'banish the blight of racial discrimination in 
voting' once and for all." McCain v Lybrand, 465 US 236, 
244 (1985), quoting South Carolina v Katzenbach, 383 US 
301, 308 (1966). For the express purpose of radically 
reversing the time-consuming, expensive, and legally 
burdensome method of challenging proliferating changes 
in voting practices case by case, Congress designed a 
novel preclearance procedure that was supposed to place 
all the burdens of proof and delay on the covered juris­
dictions. McCain v Lybrand, 465 US at 243-44. The sheer 
number of such changes and the recalcitrance of covered 
jurisdictions, which have failed or refused even to submit 
many changes for preclearance, has seriously strained the 
Attorney General's limited resources.

This Court recently acknowledged that the Attorney 
General cannot and usually does not monitor each juris­
diction to make sure all changes affecting voting are 
being submitted for preclearance. Clark v Roemer, 59 
USLW 4583, 4586 [slip opinion at 11-12] (June 3, 1991). 
Consequently, private citizens have been forced into the 
role of policing covered jurisdictions simply to get 
changes submitted under Section 5 and to prevent their 
implementation prior to preclearance. Private litigants 
must turn to the local federal district courts for this 
limited, threshold enforcement function. Allen v State 
Board of Elections, 393 US 544 (1969).

Local district courts who overstep their narrowly 
restricted roles in Section 5 actions "upset[] this ordering



25

of responsibilities under § 5[,] diminish covered jurisdic­
tions' responsibilities for self-monitoring under § 5 
and . . . create incentives for them to forgo the submission 
process altogether." Clark v Roemer, 59 USLW at 4586 [slip 
opinion at 11-12]. The district court's rulings in the 
instant cases encourage covered jurisdictions to give 
themselves the benefit of the doubt about the need to 
preclear changes in the powers of government officers. 
Even requests for submission by the Attorney General 
can be ignored with impunity. Private citizens will have 
to institute three-judge court actions and bear the burden 
of convincing local district judges that something 
approaching a likelihood of significant discrimination 
exists before the covered jurisdictions need begin the 
preclearance process. Meanwhile, the changes already 
will have been implemented, making it likely the local 
district court will permit implementation to continue dur­
ing the preclearance process. See Clark v Roemer, 59 USLW 
at 4584 [slip opinion at 4],

As the majority opinion below demonstrates, the use 
by local district courts of the "potential for discrimina­
tion" inquiry is threatening to create a burgeoning new 
body of Section 5 caselaw, one that is largely independent 
of, but parallel to, the substantive principles developed 
by the decisions of the D.C. District Court and the deci­
sions and regulations of the Attorney General. All three 
of the district judges below agreed that it is usually 
impossible to dissociate "potential for discrimination" 
inquiries, as they understand them, from substantive 
analyses of discrimination in fact. JS A-22 n.21 (majority 
opinion) and A-30 (Thompson, ]., dissenting). Unless this 
Court acts decisively to stop it, most future developments



26

in Section 5 law will take place in local district courts, 
which lack jurisdiction to make substantive determina­
tions about the nature or scope of violations. Private 
plaintiffs rather than covered jurisdictions bear the bur­
den of proving discriminatory circumstances. Covered 
jurisdictions will be able to avoid bearing the burdens of 
time and inertia.

In Houston Lawyers' Ass'n v Attorney General of Texas, 
59 USLW 4706 (June 20, 1991), this Court emphasized (in 
a § 2 context) the importance of separating "the threshold 
question of the Act's coverage" from substantive issues 
about whether a violation has occurred. Id. at 4708 [slip 
op. at 6]. See also Chisom v Roemer, 59 USLW 4696, 4698 
[slip op. at 9] (June 20, 1991).15 Complex factual issues 
and policy considerations are properly reserved for plen­
ary evidentiary proceedings to determine whether the 
Act has been violated. Engaging these issues at the 
threshold of coverage procedurally frustrates the broad 
remedial purpose of the Voting Rights Act. This is so 
particularly in the § 5 context, where Congress has explic­
itly restricted authority to determine violations to the 
D.C. District Court and the Attorney General, leaving 
local district courts with the limited responsibility of 
facilitating the work of the D.C. fora by requiring covered 
jurisdictions to submit all changes that may affect the 
voting rights of protected minorities.

Congress excluded local district courts from § 5's 
enforcement mechanism because it wanted to centralize

15 The question before the Court in Chisom involved only 
the scope of coverage of § 2, making it unnecessary to address 
the elements of proving a violation or providing a remedy.



27

in Washington a uniform body of case precedents. It also 
distrusted the ability of district courts in the covered 
jurisdictions to afford sufficient weight to the national 
voting rights priorities embodied in § 5's extraordinarily 
intrusive procedural and substantive measures.16 The 
institutional difficulties Congress feared in local courts 
are apparent in the split decision below. The majority 
below simply was unprepared to accept the plain lan­
guage of § 5's sweeping command, reaffirmed by this 
Court's decisions, when it engaged in a balancing of the 
white community's "goodgovermint"17 agenda with the 
right of blacks to have effective and responsive represen­
tatives.18 The district court majority confessed that in

16 In McDaniel v Sanchez, 452 US 130, 151 (1981), this Court 
stated, "Because a large number of voting changes must neces­
sarily undergo the preclearance process, centralized review 
enhances the likelihood that recurring problems will be 
resolved in a consistent and expeditious way." The next year, 
Congress rejected proposals to allow local district courts to 
hear § 5 suits. S. Rep. No. 417, 97th Cong., 2d Sess. 58-59 
(1982); H.R. Rep. 227, 97th Cong., 1st Sess. 36 (1981). The 
Senate overwhelmingly rejected an amendment which would 
have allowed any "appropriate district court" to hear suits 
under § 5 of the Act. 128 Cong. Rec. S6977-6982 (1982).

17 Flannery O'Connor, "The Barber," in The Complete Sto­
ries 15, 20 (1971).

18 As examples of the district court's intrusion into the 
merits of the Russell County Commission's rationales for its 
changes, note the following: the district court majority held the 
potential for diminution of blacks' voting rights "pales," JS 
A-19, in comparison with legitimate local government reforms 
that discouraged "corruption in Russell County's road opera­
tions," JS A-3, that replaced political "horse-trading," JS A-19, 
with more efficient systems that "consolidated the road shops 
. . . and streamlined the road work force," JS A-4, and that

(Continued on following page)



28

balancing the concern of freeing covered jurisdictions 
from unnecessary federal interference against what this 
Court has called "the prophylactic purpose" of § 5,19 it 
was opposed to "automatically expanding, where in 
doubt, the scope of [§ 5] coverage" JS A-22 n.20.

When it drafted § 5 of the Voting Rights Act, Con­
gress exercised its enforcement powers under § 5 of the 
Fourteenth Amendment and § 2 of the Fifteenth Amend­
ment and made political policy decisions about the 
proper fora for enforcing the preclearance provisions.20 
Federal courts are bound to respect this legislative choice 
and to enforce it both in letter and in spirit. Local district 
courts still have important roles to play enforcing other 
provisions of the Voting Rights Act, particularly § 2, 
where private litigants bear the burden of convincing 
local judges, conducting "intensely local appraisals," that 
existing practices impair blacks' access to the political 
process. Thornburg v Gingles, 478 US 30 (1986). But Con­
gress has placed a clear responsibility on covered juris­
dictions that seek to change existing practices that may 
affect the voting rights of black citizens; they must bear

(Continued from previous page) 
changed budget-setting priorities "from a system of designat­
ing funds on a district-by-district need basis to one of desig­
nating funds on a county-wide need basis without regard to 
district lines," JS A-7. Each of these is a determination which is 
left by § 5 to the District of Columbia court or the Attorney 
General.

19 McCain v. Lybrand, 465 U.S. at 245.
20 South Carolina v Katzenbach, 383 US 301 (1966); Georgia v 

United States, 411 US 526 (1973); City of Rome v United States, 
446 US 156 (1980).



29

the burdens of proof, time, and inertia in a national 
forum before implementing these changes. McCain v 
Lybrand, 465 US 236, 243 (1984), citing South Carolina v 
Katzenbach, 383 US 301, 328 (1966). The danger of the 
decisions below and other § 5 decisions like them from 
local district courts21 is that the carefully crafted and 
demanding preclearance enforcement scheme designed 
by Congress will be seriously, perhaps fatally, side­
tracked. If so, black citizens in covered jurisdictions will 
lose what arguably has been the most powerful and effec­
tive mechanism for safeguarding the right to vote ever 
enacted.

C. The local district court improperly considered 
the substantive issues relating to the voting law 
changes in the instant appeals.

The district court in the instant case, referring to this 
Court's opinion in McCain v Lybrand, 465 US 236, 250 n.17 
(1985), quickly acknowledged that, as " 'reallocation[s] of 
authority' among government officials or bodies," the 
Russell County and Etowah County changes at issue here 
"may constitute changes affecting voting under section 
5." JS A-10 (emphasis added). This conclusion by itself 
was enough to trigger § 5, and the local district court 
should have proceeded no further. Every change affecting 
voting is required by statute to receive preclearance, even 
one that seems innocent of discriminatory purpose or 
effect. Only the D.C. District Court and the Attorney

21 See, e.g., Connor v Finch, 431 US 407 (1977), listing the 14- 
year history of the recalcitrance of a Mississippi three-judge 
district court.



30

General are empowered to declare the change free of 
discrim ination. Congress established the procedure 
requiring the Attorney General to object within sixty days 
of submission to serve as "a speedy alternative method of 
compliance" that would not "unduly delay implementa­
tion of nondiscriminatory legislation. . . . "  McCain v 
Lybrand, 465 US at 246, quoting Morris v Gressette, 432 US 
491, 503 (1977).

Put differently, the threshold question of coverage 
was fully resolved once the district court below found 
that the changes at issue had "the nature of the changes in 
election practices . . . which required preclearance. . . . "  
McCain, 465 US at 250 n.17 (emphasis added). By extend­
ing its inquiry into the factual circumstances of these 
particular changes in quest of "the potential for discrimi­
nation," the court below necessarily entered the realm of 
"substantive consideration" about the existence of a vio­
lation reserved for the D.C. fora (as the district court 
actually admitted when it launched its search for the 
proper "benchmark for comparison," JS A-9). Some real- 
locations of governmental authority may have no con­
ceivable adverse impact on minority voting rights or may 
be so attenuated in their impact on voting rights that, 
notwithstanding the fact they affect the powers of elected 
representatives, they undoubtedly do not violate § 5. But 
that is not for the local district court to say.

There is no escaping the conclusion that the district 
court in this case went far beyond the question of § 5 
coverage, that is, whether each challenged change was a 
"standard, practice, or procedure with respect to voting," 
42 USC § 1973c. Rather, the court impermissibly deter­
mined, on the facts of these cases, that violations of law



31

were unlikely. Nothing makes this clearer than the major­
ity opinion's disclaimers of having prejudged plaintiffs' 
§ 2 claims against the very same voting practices that 
remain for the single-judge court. The majority said it had 
not reached the issues of whether the unit system "has in 
fact been administered with the purpose or effect of racial 
discrimination," JS A-18 n.17, or "whether black voters 
are denied equal voting rights under the governmental 
regimes currently prevailing in Russell or Etowah Coun­
ties." JS A-21-22 n.20. It claimed only to have decided 
"whether the disputed changes in this case have any 
potential impact on voting sufficient to raise them to the 
level of 'changes affecting voting.' " Id. Since, as the 
district court correctly held in this case, appellants are 
not foreclosed from showing at a full trial on their § 2 
claims, that the changes in Russell and Etowah Counties 
have resulted in a dilution of their voting strength, then 
as a matter of logic the district court erred in finding that 
there was no potential for discrimination.

This is not a situation where black citizens can hope 
to use a § 2 action effectively to override the Attorney 
General's decision to grant § 5 preclearance to a chal­
lenged voting change.22 Instead, a federal court has held 
that, regardless of what evidence is later adduced, the 
change could not possibly cause discrimination. Moreover, 
in § 5 proceedings, a change should be denied pre­
clearance if racial discrimination inheres in the practice

22 Cases in which private citizens won § 2 cases after the 
Attorney General had interposed no § 5 objection include 
Major v Treen, 574 FSupp 325 (ED Lou 1983), and Thornburg v 
Gingles, 478 US 30 (1986).



32

itself, regardless of whether the change has aggravated 
the discriminatory impact.23

1. The district court's consideration of the 
merits of the Russell County changes

The district court plunged into the forbidden consid­
eration of substantive violations when it assessed the 
1979 Russell County change, not to determine whether it 
affected voting, but to decide whether or not there had 
been a "change in the potential for discrimination against 
minority voters." JS A-16 (emphasis in original). Without 
the aid of a plenary evidentiary hearing, the court made a 
factual determination that black voters lost no significant 
influence over road and bridge operations when manage­
ment was transferred from the commissioner residing in 
their district to an engineer appointed by the commission 
majority. JS A-16-17.

Once it crossed into violation-assessment territory, 
the district court majority then refused to apply the sub­
stantive standards announced by the Attorney General. 
Without a word of explanation, the court completely 
ignored the rule of "substantive consideration" it had

23 28 CFR § 51.55(b)(2) (1987): "In those instances in which 
the Attorney General concludes that, as proposed, the submit­
ted change is free of discriminatory purpose and retrogressive 
effect, but also concludes that a bar to implementation of the 
change is necessary to prevent a clear violation of amended 
section 2, the Attorney General shall withhold section 5 pre­
clearance." This was adopted after Congress endorsed a simi­
lar standard. S. Rep. No. 417, 97th Cong., 2d Sess. 12 n. 31 
(1982).



33

recognized earlier in its opinion, that the challenged 
change must be compared with the precleared practices 
in effect at the time of submission, not those in effect at 
the time of enactment. JS A-9-10. The potential for dis­
crimination against black Russell County voters if road 
and bridge authority was shifted from a single-member 
district commissioner to the county engineer "is too 
obvious to require discussion." JS A-16. But the court 
found irrelevant a court-ordered single-member district 
election system that had been precleared in 1985, because 
it was not used in 1979 when the unit system change was 
made.

By ruling that the 1979 unit system change was 
beyond the scope of § 5, the district court relieved the 
Russell County government of its statutory burden of 
demonstrating that it had neither the purpose nor the 
effect of diluting black electoral strength -  and foreclosed 
the opportunity for black citizens to convince the Attor­
ney General or the District Court for the District of 
Columbia that it did have such purpose or effect. The 
decision thus pretermits consideration of possible factual 
circumstances like the following:

(1) Even though all the road commissioners had 
been elected in countywide voting, the district residency 
requirement by custom and practice made them partic­
ularly responsive to the voters in their residency districts, 
and as a practical matter black voters, most of whom 
reside in one district, lost political influence over road 
and bridge operations when authority was shifted to the 
county engineer.



34

(2) The county commissioners and local legislators 
anticipated in 1979 the coming court-ordered change to 
single-member districts that would allow black voters to 
elect one or more representatives of their choice. As of 
1979 the Fifth Circuit recently had affirmed the district 
court judgment striking down at-large elections in 
Mobile,24 and district courts had ordered single-member 
districts in several Alabama jurisdictions, including the 
State legislature.25 The District Court found in Dillard, 640 
FSupp at 1356-57 -  a case in which Etowah County Com­
mission was a defendant -  that the Alabama legislature 
was well aware of the potential electoral strength of 
blacks and had enacted laws on a variety of occasions so 
that blacks would not have electoral influence even if 
they obtained full and free access to the ballot. The trans­
fer to the county engineer of authority over road and 
bridge operations was intended to head off the possibility 
that a black commissioner would have run these opera­
tions in his or her own district -  which would have been

24 Bolden v City of Mobile, 571 F2d 238 (5th Cir 1978), aff'g 
423 FSupp 384 (SD Ala 1976), rev 446 US 55 (1980), vac and rem 
626 F2d 1324 (5th Cir 1980), after remand by US Supreme 
Court, 542 FSupp 1050 (SD Ala 1982); Brown v Moore, 428 
FSupp 1123 (SD Ala 1976), vac. & rem. sub nom. Williams v 
Brown, 446 US 236 (1980), after remand by US Supreme Court, 
542 FSupp 1078 (SD Ala 1982), aff'd 706 F2d 1103 (11th Cir 
1983), aff'd mem. sub nom. Board of School Comm'rs v Brown, 
464 US 1005 (1983).

25 Corder v Kirksey, 585 F2d 708 (5th Cir 1978); Robinson v 
Pottinger, 512 F2d 775 (5th Cir 1975); Hendrix v McKinney, 460 
FSupp 626 (MD Ala 1978); Sims v Amos, 340 FSupp 691 (MD 
Ala 1972), 365 FSupp 215 (1973) (3-judge court); Broadhead v 
Ezell, 348 FSupp 1244 (SD Ala 1972).



35

the case after the Dillard decree became effective in 1985. 
In this event, the county would have adopted the 1979 
change to a county "unit system" for an unlawfully dis­
criminatory purpose.

2. The district court's consideration of the 
merits of the Etowah County changes

Similarly, the district court's absolution of the 1987 
Common Fund Resolution rammed through by the four 
holdover commissioners in Etowah County, over the vig­
orous objections of the new single-member district com­
missioners, foreclosed plenary consideration of the 
following evidentiary scenarios:

(1) Even if, in theory, the power of a single commis­
sioner to control road and bridge spending within his 
district seems "minor and inconsequential" in compari­
son to the total commission's power to allocate funds 
among the districts, in fact and in practice it was a critical 
component of the four holdovers' road and bridge 
monopoly, which the district court found to have a "bla­
tant and obvious" potential for discrimination, JS A-20.

(2) Like the Russell County situation, Etowah 
County's white commission majority adopted the com­
mon fund resolution for the racially discriminatory pur­
pose of preventing the representative of black voters from 
controlling even a part of the road and bridge budget.

The Etowah Common Fund Resolution is different 
from the "benchmark" to which any new enactment must



36

be compared.26 In this case, the benchmark would be the 
Dillard decree, under which the commissioners elected 
from Districts 5 and 6 "shall have all the rights, privi­
leges, duties and immunities of the other commissioners, 
who have heretofore been elected at large, until their 
successors take office." At the time the Dillard decree 
became effective, commissioners had the power to make 
resource-allocation decisions for their districts. The 1987 
resolutions, together and separately, deprive the commis­
sioner elected by blacks of that power.

The district court in this case strayed over the line 
into the territory reserved for the D.C. District Court and 
the Attorney General by deciding, with regard to Etowah 
County, that "the reallocation of authority embodied in 
the common fund resolution was, in practical terms, 
insignificant. . . . "  The district court did not hold that the 
Common Fund Resolution lacked the "potential for dis­
crimination," but that it was insignificant. This Court has 
dealt in the past with election changes that might strike 
some as "insignificant" -  the transfer of a polling place, 
Perkins, changes in personnel regulations, Dougherty, the 
extension of city limits to include uninhabited territory, 
City of Pleasant Grove v United States, 479 US 462 (1987) -  
but this Court has held firm to the standard first 
expressed in Allen that even "minor" changes affecting 
elections and voting must be precleared.

26 28 CFR § 51.54(b). See also, supplemental information to 
§ 5 regulations, 52 Fed Reg 486, 487 (6 Jan. 1987), citing Beer v 
United States, 425 US 130, 140-42 (1976); City of Lockhart v 
United States, 460 US 125, 131-36 (1983).



37

D. The district court should have accorded defer­
ence to the decision of the Attorney General 
that the changes in this case must be submitted 
under § 5.

A decision of a local district court to deny an injunc­
tion under § 5 is a de facto preclearance of the election law 
change. Since the Attorney General has the primary 
enforcement responsibility under § 5, his decisions about 
the coverage of the Act ought to be given great deference. 
In United States v Sheffield Board of Comm'rs, 435 US 110 
(1978), this Court held it should accord deference to the 
Attorney General's interpretation of the Act's coverage, 
especially considering the extensive role played by the 
Attorney General in drafting the statute and explaining 
its operation to Congress. In NAACP v Hampton County 
Election Commission, 470 US 166, 179 (1985), the Court 
based its decision in part on the Attorney General's prior 
determinations that § 5 covered changes in election dates. 
In Dougherty County Board of Education v White, 439 US 32, 
39 (1978), the Court specifically cited the Attorney Gen­
eral's request that a personnel rule be submitted under 
§ 5 as an "interpretation . . . entitled to particular defer­
ence." In Perkins v Matthews, 400 US 379, 390-94 (1971), 
the Court decided that "location of polling places and 
municipal boundary changes come within § 5" after cit­
ing prior decisions of the Attorney General to the same 
effect and noting that the Court pays great deference to 
the decisions of the Attorney General in the interpreta­
tion of the Act.

The balance of equities is clear. On the one hand, if 
the local district court enjoins a change that ought not be 
considered by the Attorney General, the State or locality



38

has been denied the right to enforce its new law or 
practice for only 60 days. If the Attorney General deter­
mines that preclearance is not required, he can notify the 
jurisdiction immediately. On the other hand, the decision 
below in this case sends the message that some election 
law changes are de minimis. If jurisdictions decide that 
they, rather than the Attorney General, will choose which 
election-related changes should be submitted, the minor­
ity citizens of the jurisdiction may be denied the rights 
guaranteed by § 5. The Court discussed the Attorney 
General's lack of resources to discover all changes that 
should be submitted in McCain v Lybrand, 465 US 236, 
248-49 (1984). Section 5 can only work if States and 
localities submit election-law changes. "In the legislative 
history of the Act, § 5 has been deemed to be a 'vital 
element' of the Act to ensure that 'new subterfuges will 
be promptly discovered and enjoined.' But Congress rec­
ognized that it was only as vital as state compliance 
allowed it to be." McCain, 465 US at 248 (citation omit­
ted).

II. The district court improperly departed from this 
Court's prior decisions requiring a State to preclear 
a transfer of responsibilities from elected to 
appointed officials or changes in powers of offi­
cials.

The protection given appellants under the Voting 
Rights Act extends beyond simply requiring the use of 
single-member districts in electing the Etowah and 
Russell County Commissions. The right to vote includes 
"all action necessary to make a vote effective." Allen, 393 
US at 565-66 (1969), citing § 14 of the Voting Rights Act,



39

42 USC § 19731(c)(1), and Reynolds v Sims, 377 US 533, 555 
(1964). "The right to vote can be affected by a dilution of 
voting power as well as by an absolute prohibition on 
casting a ballot." Allen, 393 US at 569.

A. This Court has held that the reallocation of 
power from one public official to another must 
be submitted for preclearance under § 5.

One of the three cases decided with Allen was Bunton 
v Patterson, in which the plaintiffs alleged that the State of 
Mississippi had violated § 5 of the Voting Rights Act by 
not seeking preclearance of a law requiring eleven coun­
ties to appoint, instead of elect, the county superinten­
dent of education. Allen, 393 US at 550-551. This Court 
agreed and held, "an important county officer in certain 
counties was made appointive instead of elective. The 
power of a citizen's vote is affected by this amendment; 
after the change, he is prohibited from electing an officer 
formerly subject to the approval of the voters." Allen, 393 
US at 569-570.

If the State of Alabama had changed the office of 
Russell County commissioner from elective to appointive, 
it would have had to obtain preclearance. Similarly, the 
State must obtain preclearance if it shifts powers to an 
appointive officer while continuing to elect the officer 
from whom the powers were taken -  that is, when it use 
indirect means to accomplish the goal of removing voter 
control over the official exercising significant powers. In 
the present case, the voters continue to elect county com­
missioners, but the most significant power formerly held 
by those commissioners has been shifted to the county



40

engineer, over whom the voters have no direct control. 
The net result of the Russell County change is the same as 
in Bunton -  less power for the voters over their local 
affairs.

In McCain v Lybrand, 465 US 236 (1984), this Court 
considered whether a change in county government from 
two appointed and one elected member to three elected 
members had to be submitted under § 5 and held,

While this matter may be more fully explored in 
future proceedings after rem and, several 
changes [covered by § 5] are suggested: . . . the 
basic reallocation of authority from the state 
legislative delegation to the Council, [and] the 
shift from two appointed Board positions to at- 
large election of their Council counterparts. . . .

McCain, 465 US at 250 n.17. Surely, if a change from 
appointment to election must be precleared, a transfer of 
power from an elected to an appointed official must 
similarly be submitted for preclearance.

B. District courts hearing similar matters have 
likewise held that changes in the allocation of 
governmental powers require preclearance.

In Horry County v United States, 449 FSupp 990 (D DC 
1978) (3-judge court), the court held a South Carolina 
statute was a change in electoral practices requiring pre­
clearance because it provided for the election of public 
officials who formerly were appointed by the Governor.

An alternate reason for subjecting the new 
method of selecting the Horry County govern­
ing body to Section 5 preclearance is that the 
change involved reallocates governm ental



41

powers among elected officials voted upon by 
different constituencies. Such changes neces­
sarily affect the voting rights of the citizens of 
Horry County, and must be subjected to Section 
5 requirements. Cf. Perkins v Matthews, [400 US 
379 (1971)]; Allen v State Board of Elections, supra.

449 FSupp at 995. See also, County Council of Sumter 
County v United States, 555 FSupp 694 (D DC 1983) (3- 
judge court) (preclearance required of a law that elimi­
nated the legal power of the governor and general assem­
bly over local affairs and vested it exclusively in a county 
council elected at large by county voters).

Addressing a change resembling that effected by Act 
79-652, the Horry County court also held that the statute 
required preclearance because it changed the duties of 
the chairman of the county council. Horry County, 449 
FSupp at 995. The chairman previously had authority to 
direct the construction and repair of all roads and bridges 
in the county and supervise the employees engaged in 
such work, subject to the approval of a majority of the 
Board. The new statute assigned the chairman no powers 
or authority different from those of the other council 
members. Horry County, 449 FSupp at 993-94. The new 
statute also gave the county council additional taxing, 
legislative and administrative duties which were not pro­
vided under the previous statute. Horry County at 994.

The duties of the chairman of the former 
Horry County Board of Commissioners and 
those of the chairman of the Horry County 
Council under Act R546 are sufficiently different 
that in this respect also Act R546 constitutes a 
change in electoral practices requiring pre-clear­
ance under Section 5 of the Voting Rights Act -



42

unlike the two at large council seats in Beer v 
United States, . . .  425 US [130] at 139 [(1976)], 
which underwent no change at all.

Horry County, 449 FSupp at 995-96.

In Hardy v Wallace, 603 FSupp 174, 178-79 (ND Ala 
1985) (3-judge court), the court held that the State of 
Alabama must preclear a statute which changed the 
appointive power over a local racing commission from 
the local legislative delegation to the governor. Writing 
for the court, the late Judge Robert S. Vance noted that 
"the most relevant attribute of the challenged act is its 
effect on the power of the voters rather than any aspect of 
the electoral process." Hardy, 603 FSupp at 178. Similarly, 
the power of the voters in black-majority districts to 
choose a commissioner who will follow their wishes and 
have the power to do so is a relevant attribute of the prior 
situations in Etowah County and Russell County.

III. The district court decision regarding Russell 
County conflicts with decisions of this Court and 
the regulations of the Department of Justice 
regarding the proper "benchmark" for comparison 
of an unprecleared change in election-related law.

The argument in this section addresses an issue the 
district court should not have reached, namely, the likeli­
hood the challenged Russell County change might violate 
the substantive prohibitions of Section 5. Thus, it is not in 
a posture for consideration by this Court. It is briefed 
here strictly in the alternative event that this Court none­
theless decides to consider the question.

The district court recognized the appropriate statu­
tory test when it stated:



43

[I]n assessing the discriminatory or retrogres­
sive effect of a change, the proper benchmark 
for comparison is the regime 'in effect at the 
time of the submission,' taking into account 
duly precleared changes which have occurred 
subsequent to the original statutory benchmark 
date.

We therefore measure the purported changes in 
this case against the benchmark of the 1964 reg­
ime as modified by any intervening duly pre­
cleared changes.

JS A-14-15. But it nonetheless ignored this test in analyz­
ing the change in Russell County.

In City of Rome v United States, 446 US 156 (1980), this 
Court explained that when a change is not submitted 
until years after its enactment, the change is to be 
analyzed in light of the now-existing system rather than 
in light of the system  existing at the time the 
unprecleared change was enacted. This Court held,

Because Rome's failure to preclear any of 
these annexations caused a delay in federal 
review and placed the annexations before the 
District Court as a group, the court was correct 
in concluding that the cumulative effect of the 
13 annexations must be examined from the per­
spective of the most current available popula­
tion data.

Rome, 446 US at 186. The district court in Rome had used 
the current perspective because § 5 "requires, in the 
future tense, that the plaintiff jurisdiction demonstrate 
that its voting changes 'will not' have a discriminatory 
effect," City of Rome v United States, 472 FSupp 221, 246 (D 
DC 1979) (3-judge court) (emphasis in original). The



44

Department of Justice regulations governing § 5 submis­
sions have codified this standard. 28 CFR § 51.54(b) pro­
vides, in part, as follows:

(1) In determining whether a submitted 
change is retrogressive the Attorney General 
will normally compare the submitted change to 
the voting practice or procedure in effect at the 
time of the submission. If the existing practice or 
procedure was not in effect on the jurisdiction's 
applicable date for coverage . . . and is not 
otherwise legally enforceable under Section 5, it 
cannot serve as a benchmark, and . . . the com­
parison shall be with the last legally enforceable 
practice or procedure used by the jurisdiction.

(2) The Attorney General will make the 
comparison based on the conditions existing at the 
time of the submission. [Emphasis supplied.]

Despite its citation of the correct standard, the district 
court failed to follow the standard.

In 1964 the Russell County Commission had three 
members elected at large from residency districts; within 
each residency district the commissioner controlled road 
work, JS A-2. In 1985 the commission was enlarged to 
seven members, elected from single-member districts; 
this change was precleared, JS A-4. Thus, today "the 1964 
regime as modified by any intervening duly precleared 
changes," JS A-15, is seven single-member districts with 
each commissioner having control over road construction 
and maintenance in his or her district.

Rather than judging whether the change to a county 
unit system affects voting in the context of the 1985 
precleared change to single-member districts, the district 
court incorrectly judged the county unit system as if it



45

affected only an at-large system. The district court was 
deciding whether it would have required the county unit 
system to be submitted for preclearance in 1979 without 
regard for the events that have occurred since then. The 
district court committed clear error by centering its atten­
tion only on the conditions immediately "before and after 
the 1979 change," JS A-21, when the county commission 
was still elected at large.27

Since "the question [in a § 5 injunction action] is not 
whether the provision is in fact innocuous and likely to 
be approved, but whether it has a potential for discrimina­
tion," Dougherty County Board of Education v White, 439 US 
32, 42 (1978) (emphasis in original), the court must look at 
all evidence that might demonstrate a potential for dis­
crimination. The law is "a ass and a idiot"28 if the court 
must blind itself to actual discrimination by pretending 
that it would not have seen the potential for that discrimi­
nation several years earlier.

----------------- ♦-------------------

CONCLUSION

For the reasons stated in this brief, the appellants 
pray that the Court will reverse the decision of the United 
States District Court for the Middle District of Alabama 
and remand this action with instructions to issue the

27 Under the principles discussed in Section I and II of this 
brief, even in 1979 the Russell County changes should have 
been submitted for preclearance.

28 Charles Dickens, Oliver Twist, Chap. 51 (1837-38).



46

injunctions prayed by the appellants against the enforce­
ment of the Etowah County Common Fund Resolution
and Alabama Act 79-652.

Respectfully submitted

E dward Still 
Counsel of Record 

714 South 29th Street 
Birmingham AL 35233-2810 

205-322-6631 
James U. B lacksher 
John C. Falkenberry 
L eslie M. P roll 
Title Bldg., Fifth Floor 
300 21st Street North 
Birmingham AL 35203 

205-322-1100

by,

Pamela Karlan 
University of Virginia 
School of Law 
Charlottesville VA 22901 

804-924-7810 
L ani G uinier
Law School of University 

of Pennsylvania 
3400 Chestnut Street 
Philadelphia PA 19104-6204 

215-898-7032