Letter from Higgins to All Counsel RE: Copy of Court’s Opinion and Judgment

    No.

I n  the

i>upmttp (Emtrt of tft* l&ate
O ctober T erm , 1983

National  A ssociation for th e  A dvancement of 
Colored P eople, etc., et al.,

Appellants,
v.

H am pton  County  E lection  Comm ission , etc., et al.,

Appellees.

ON APPEAL FROM T1IE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA

JURISDICTIONAL STATEMENT

J o hn  R. H arper II*
3706 North Main Street 
Post Office Box 843 
Columbia, South Carolina 29202 
(803) 799-2798

T hom as I. A tk in s  
M argrett F ord

186 Remsen Street 
Brooklyn, New York 11201 
(212) 858-0800

J ack  Greenberg 
L an i G uinier 
E ric S chnapper  

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

A rm and  D erfner
5520 33rd Street, N .W . 
Washington, D.C. 20015

Counsel for Appellants

* Counsel of Record



W .m o (ran.

Lani Guinier

June 27, 1984

Julius Chambers
Eric says that we have 
a few more weeks to 
deliberate on these 
issues.

LG/r
Attach



1

Questions Presented

(1) Did the District Court err in holding that, in pre­
clearing an election law under section 5 of the Voting 
Rights Act, the Attorney General must be deemed to pre­
clear as well all future changes in election practices and 
procedures which may occur in the implementation of that 
law?

(2) Did the District Court err in holding that changes 
in election practices and procedures need not he precleared 
under section 5 of the Voting Rights Act if those changes 
occur in the implementation of a separate election law which 
itself had earlier received such preclearance?

(3) Did the District Court err in holding that the im­
plementation of a non-precleared change in election pro­
cedures cannot be enjoined under section 5 of the Voting 
Rights Act unless that change is in fact “ alleged to have 
had either racially discriminatory purpose or effect” ?

(4) Did the District Court err in holding that state ac­
tion knowingly and illegally implementing a change in 
election law to which the Attorney General had objected 
under section 5 is never to be invalidated by the federal 
courts so long as that change subsequently receives pre­
clearance ?



a

Parties

The appellants in this action are the National Associa­
tion for the Advancement of Colored People, Inc., the 
Hampton County, South Carolina Branch of the National 
Association for the Advancement of Colored People, Inc., 
Benjamin Brooks, Jack J. DeLoach, Jessie M. Taylor, 
Rev. Ernest McKay, Sr., Soletta Taylor, Jesse Lee Carr, 
W.M. Hazel, John Henry Martin, Washington G. Garvin, 
Jr., Dora E. Williams, James Fennell, Vernon McQuire, 
Bossie Green and Earl Capers.

The appellees in this action are:

(1) The Hampton County Election Commission and its 
members, Randolph Murdaugh, III, Richard Sinclair, 
James Wooten, and W.H. Smith,

(2) The Hampton County School District No. 1 and its 
trustees, Philip Stanley, Lenon Brooker, Rebecca 
Badger, Wiley Kessler and Gerald Ulmer,

(3) The Hampton County School District No. 2 and its 
trustees, T.M. Dixon, Willie J. Orr, Virgin John­
son, Jr., Rufus Gordon, and Lee Manigo,

(4) Willingham Cohen, Sr., Marcia Woods, Louise Hop­
kins, Charlie Crews and William Bowers, the mem­
bers of the Hampton County Council, and

(5) Wilson P. Tuten, Jr., the Hampton County Trea­
surer.



Ill

TABLE OF CONTENTS
PAGE

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

Parties ................................................................................  ii

Table of Authorities.........................................................  iv1

Opinion Below ..................................................................  1

Jurisdiction ........................................................................  2

Statutes Involved............................................................... 2

Statement of the Case .....................................................  2

The Questions Are Substantial ...................................... 7

Conclusion ..........................................................................  18

A pp e n d ix—

Order of the District Court, September 9, 1983 .... la

Notice of Appeal .......................................................  12a

Votings Rights Act of 1965, Section 5 ..................  14a

Act No. 547, South Carolina Laws (1982) . 17a

Act No. 549, South Carolina Laws (1982) . 19a



1Y

T able of A uthorities

Cases: page

Allen v. State Board of Elections, 393 U.S. 544 (1969)
8, 9,11,12,13,14,15-16,17

Berry v. Doles, 438 U.S. 190 (1978) ........................ 8,14,15

Blanding v. Dubose, 454 U .S .------  (1982) ....................  17

Canady v. Lumberton Board of Education, —*— U.S.
------  (1982) ....................................................................  17

City of Rome v. United States, 446 U.S. 156 (1980) ....9,12 
Connor v. Waller, 421 U.S. 656 (1975) ........................... 10
Dougherty County v. White, 439 U.S. 32 (1978) ....9,10,16

Georgia v. United States, 411 U.S. 526 (1973) ........... 13

Hadnott v. Amos, 394 U.S. 358 (1969) ........................  9

Hicks v. Miranda, 422 U.S. 332 (1975) ........................  17

McCain v. Lybrand, No. 82-282 ........................................ 17

Perkins v. Matthews, 400 U.S. 379 (1971) ...........11,14,16

United States v. Board of Supervisors, 429 U.S. 642 
(1977) ..............................................................................  16

United States v. Sheffield Board of Commissioners, 435 
U.S. 110 (1978) .............................................................12,13

Whitely v. Williams, 393 U.S. 544 (1969) ....................  9

Statutes and Constitutional Provisions:

28 U.S.C. § 1253 ................................................................ 2

28 U.S.C. § 2101(b) ..........................................................  2

42 U.S.C. § 1973c ..........................................................passim



Y
PAGE

Voting Rights Act of 1965, § 2 .......................................  6n

Voting Rights Act of 1965, § 5 ................................... passim

Act 547, South Carolina Laws (1982) ........................2, 3, 5

Act 549, South Carolina Laws (1982) ...................... passim

Regulations:

28 C.F.R. § 51.12(g) ......................................................... 9

28 C.F.R. § 51.20 ............................................................... 4

Rules:

Rule 6(a), Federal Rules of Civil Procedure............... 2n

Supreme Court Rule 12.1 ...............................................  2

Supreme Court Rule 29.1 ...............................................  2n

Reports:

S.Rep. No. 97-417 .............................................................  15

H.R. Rep. No. 97-227 .......................................................  15

TJ.S. Constitution:

Fourteenth Amendment ................................................   6n

Fifteenth Amendment .....................................................  6n



No.

I n the

(to ri of thr llnttrfc Stairs
October T erm, 1983

National A ssociation for the A dvancement of 
Colored P eople, etc., et al.,

v .

Appellants,

H ampton County E lection Commission, etc., et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA

JURISDICTIONAL STATEMENT

Appellants National Association for the Advancement of 
Colored People, etc., et al., appeal from the order of Sep­
tember 9, 1983, of the three-judge United States District 
Court for the District of South Carolina denying injunc­
tive relief and dismissing the complaint in this action in­
sofar as it sought relief under section 5 of the Voting 
Rights Act of 1965.

Opinion Below

The opinion of the district court of September 9, 1983, 
which is not reported, is set out at pp. la -lla  of the ap­
pendix hereto.



2

Jurisdiction

The order of the three-judge district court, denying in­
junctive relief and dismissing the complaint insofar as it 
sought relief under section 5 of the Voting Rights Act, was 
entered on September 9, 1983. (App. la ). A  timely notice 
of appeal was filed on October 10, 1983.1 (App. 12a). See 
28 U.S.C. § 2101(b). On December 7, 1983, the Chief Jus­
tice extended the date for docketing this appeal until 
December 16, 1983. The jurisdiction of this Court is in­
voked under 28 U.S.C. § 1253.

Statutes Involved

Section 5 of the Voting Rights Act of 1965, as amended, 
42 U.S.C. § 1973c, is set out at pp. 14a-16a of the appendix 
hereto. Acts 547 and 549 of the South Carolina Laws of 
1982 are set out at pp. 17a-18a and pp. 19a-21a of the 
appendix.

Statement of the Case

From prior to 1964 until 1982 the Hampton County pub­
lic school system was controlled by the Hampton County 
Board of Education. During this period the six members 
of the County Board were appointed by the Hampton 
County members of the South Carolina legislature. The 
school system was in turn divided into two school dis­
tricts with separate Boards of Trustees, whose members 
were appointed by the County Board. Over 91% of all 
white public school students in the county attend the schools

1 The thirtieth day after September 9, 1983, was a Sunday, Octo­
ber 9, 1983. Accordingly, the notice of appeal was due on October 
10, 1983, the date on which it was filed. Rule 6(a) ,  Federal Rules 
of Civil Procedure; Supreme Court Rule 29.1.



3

in District No. 1, while the student population of the Dis­
trict No. 2 schools is 92% black. Each school district has 
operated autonomously under the general supervision of 
the County Board and of an elected County Superintendent 
of Education.

On February 18, 1982, the South Carolina legislature 
enacted Act 547, which provided that, beginning January 
1, 1983, the six members of the County Board were to be 
elected rather than appointed. The Superintendent of 
Education, while continuing.to be elected at-large, was to 
serve as a seventh voting member of the newly consti­
tuted County Board. The first elections for the new County 
Board were to be conducted in November, 1982. The pur­
pose for electing the County Board members, rather than 
appointing them, was apparently to create a County Board 
responsive to consolidating School Districts Nos. 1 and 2. 
Act 547 was promptly submitted to the United States At­
torney General for preclearance under section 5 o f the 
Voting Bights Act, and received that preclearance on 
April 28, 1982.

The adoption of Act 547, however, provoked substan­
tial opposition among the white residents of District No. 1. 
According to the complaint, those whites circulated a peti­
tion calling for the abolition of both the County Board and 
the position of County Superintendent of Education, thus 
severing the connection between Districts One and Two. 
As a result of that petition, and with the backing of the 
Hampton County Council, a white member of the county 
legislative delegation introduced legislation to overturn 
Act 547. This new measure was enacted on April 9, 1982 
as Act 549. Act 549 abolished the Hampton County Board 
of Education and the position of Hampton County Super­
intendent of Education. It provided that their duties were 
to be assumed by the Trustees of School Districts 1 and 2. 
Beginning in November, 1982, the Trustees of those school



4

districts were to be elected at-large at the general elec­
tion. Act 549 provided that candidates for election to these 
newly reconstituted school boards were to file with the 
county Election Commission between August 16 and 31, 
1982. Implementation of Act 549, however, required ap­
proval of a referendum of Hampton County voters to be 
conducted in May, 1982.

When Act 549 was adopted there was ample time, a 
total of 129 days, to obtain preclearance before the sched­
uled filing period was to begin on August 16. But although 
Department of Justice regulations expressly authorized 
consideration of a preclearance request prior to the hold­
ing of any necessary referendum, 28 C.F.R. § 51.20, no 
effort was made to submit Act 549 during either April or 
May of 1982. Wrhen the necessary referendum approved 
Act 549 on May 25, 1982, there remained sufficient time, 
83 days, in which to obtain preclearance prior to the com­
mencement of the filing period. But state and local officials 
delayed still further. Not until June 24, 1982, some 30 
days later, was the necessary submission received by the 
United States Attorney General; by then the time remain­
ing until the statutory filing period was to begin was less 
than the 60 days normally required for preclearance under 
section 5.

As a result of these delays, the Attorney General had 
taken no action on Act 549 when the filing period for 
elections under that Act commenced on August 16, 1982. 
Despite the fact that section 5 of the Voting Rights Act 
forbids any implementation of a new election practice or 
procedure which lacks preclearanoe, Hampton County elec­
tion officials, who were well aware of the requirements 
of federal law, began to accept petitions for candidates 
seeking election in the new districts created by Act 549. 
On August 23, 1982, the Attorney General objected to Act 
549 insofar as it abolished the County Board. Despite this



5

objection, Hampton County officials continued to imple­
ment the Act 549 filing period. On September 1, 1982, 
after that filing period had ended, county officials sub­
mitted to the Attorney General a request for reconsidera­
tion of his objection. They also began for the first time to 
accept filings for election under Act 547, the only law 
which then had the necessary preclearance. On November 
2, 1982, having received no response to their request for 
reconsideration, county election officials held elections for 
the County Board under Act 547. Of the six board mem­
bers elected on that date, three were black and three were 
white.

On November 19, 1982, the Attorney General withdrew 
his objection to Act 549. On November 29, 1982, the chair­
man of the Hampton County Election Commission wrote 
the South Carolina Attorney General and requested his 
opinion on three questions:

(1) Should an election be held to elect Trustees for 
Hampton County School Districts 1 and 2?

(2) I f  so, when should such an election be held?

(3) Should the filing period for the respective District 
Boards of Trustees be “ reopened” ?

The state Attorney General responded on January 4, 1983, 
advising the County that it should hold new elections “ [a]s 
soon as possible” and that it need not “ reopen” the filing 
period. Acting on this advice, the Hampton County Elec­
tion Commission conducted elections in Districts 1 and 2 
on March 15, 1983. The six individuals elected in Novem­
ber, 1982, to the County Board of Education were never 
permitted to take office.

The advice given by the state Attorney General and 
acted upon by the county had two distinct effects of im­



6

portance to this litigation. First, although the express lan­
guage of Act 549 authorized election of District Trustees 
only during a general election, the Trustees were in fact 
chosen at a special off-year election. Second, despite the 
fact that Act 549 contemplated that the filing period would 
begin several months after the Act went into effect, the 
filing period for the 1983 election in fact closed more than 
two months before the statute became effective. The only 
time at which candidates for District Trustee were per­
mitted to file for that office was when the conduct of such 
filings was illegal under section 5 of the Voting Rights 
Act.

The appellants, two civil rights organizations and sev­
eral residents of Hampton County, commenced this action 
in the United States District Court for the District of 
South Carolina seeking an injunction to forbid the pro­
posed elections as illegal under section 5 of the Voting 
Rights Act,2 and to place in office the duly elected mem­
bers of the County Board of Education. Appellants al­
leged that the proposed elections violated section 5 be­
cause they were to occur at a time other than that pro­
vided for in Act 549, and because the elections were limited 
to candidates who had filed for election during the illegal 
August 1982 filing period.3 A  three judge court was con­

_2 The complaint also alleged that the Election Commission, in 
violation of section 3 of Act No. 549, had failed to certify to the 
South Carolina Code Commissioner the results of the May 1982 
referendum. Although we disagree with the district court’s rea­
sons for rejecting this claim, our review of the record indicates 
that that certification was in fact made. Accordingly, we do not 
seek review of the district court’s denial of injunctive relief re­
garding the alleged lack of certification.

3 The complaint also alleged that the abolition of the elected 
County Board of Education violated section 2 of the Voting Rights 
Act and the Fourteenth and Fifteenth Amendments. These claims 
were not dismissed, and are the subject of continuing litigation 
in the district court.



7

vened to hear the case, as required by 42 TJ.S.O. § 1973c. 
Appellants unsuccessfully sought to enjoin the March 15, 
1983, special election. Subsequently, on September 9, 1983, 
the district court denied appellants’ request for injunctive 
relief and dismissed their complaint insofar as it sought 
to state a claim under section 5 of the Voting Eights Act.

The Questions Presented Are Substantial

This case presents yet another attempt on the part of 
a jurisdiction subject to section 5 of the Voting Rights 
Act to avoid compliance with the provision’s requirement 
that no alteration in any election practice or procedure 
be implemented until and unless precleared by the Attorney 
General of the United States or the United States District 
Court for the District of Columbia. The voting changes 
involved in this appeal took place in connection with an 
election for school trustees, which was held under new 
procedures which either lacked preclearance under the 
Voting Rights Act or had in fact been objected to by the 
Attorney General. The district court, in denying any in­
junctive relief, created no less than four new exceptions 
to the requirements of section 5. The decision below, if 
upheld by this Court, would substantially impair the scope 
and effectiveness of section 5, and seriously interfere with 
the ability of the Attorney General to carry out his ad­
ministrative responsibilities under the Voting Rights Act.

This case arose, quite simply, because the appellees 
ignored section 5 not once but several times in the course 
of changing the system of selecting school boards in Hamp­
ton County. First, the implementation of the new statute, 
Act 549, was begun without the required preclearance, and 
continued even after an objection had been entered by the 
Attorney General. Following an interlude o f compliance 
during which implementation stopped and a scheduled elec­



8

tion was canceled, the violations began anew after the 
Attorney General withdrew his section 5 objection to Act 
549. At that point the appellees proceeded to set a new 
election and to adopt election procedures different from 
those in the text of Act 549, without any effort to preclear 
these new changes. Finally, in conducting the new election 
the appellees barred from the ballot all candidates except 
•those who had filed under Act 549 at a time when the 
conduct of a filing period under Act 549 was clearly illegal 
under the Voting Rights Act. One of the would be candi­
dates rejected because of a failure to participate in this 
illegal filing period was the chairman of the about to be 
abolished County Board of Education, who wished to run 
for a seat on one of the trustee boards which was to re­
place his office.

The first election law change which has never received 
preclearance under section 5 is an alteration of the date 
for conducting the initial election of the trustees of the 
local school boards. Section 1(b) of Act 549, as earlier 
approved by the Attorney General, authorized the elec­
tion of district trustees only at the “ general election” held 
in November of even-numbered years in South Carolina. 
A  state statute altering the election date from the general 
election to March of an off-year would clearly have been 
a change in a “ standard, practice or procedure with respect 
to voting .... ” 42 U.S.C. § 1973c. This Court has repeatedly 
held that Congress intended section 5 “ 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 UjS. 544, 566 (1969). In Berry v. Doles, 438 U.S .190 
(1978), this Court held that section 5 applied to a state 
statute changing the time at which certain Georgia county 
officials were to be elected. Such a change in the timing 
of an election has an obvious potential adverse impact on 
the number of minority voters participating when, as here,



9

the election is moved from a regular general election to a 
special election, since voter turnout at special elections 
is predictably lower. In the instant case, for example, 
over 6000 Hampton County voters participated in the 
November 1982 general election/ while less than half that 
number voted in the March 1983 special election.

Second, the procedures adopted by appellees effectively 
constituted a change in the candidate filing rules. Act 549, 
as approved by the Attorney General, authorized only two 
filing periods, the August 16-31 period for a contemplated 
November, 1982, school board election, and the usual filing 
period for subsequent school board elections. The Act 
neither established any filing period for a March 1983 
special election, nor sanctioned the use of the August 
1982 filings for any election other than that to occur in 
November, 1982. This Court has repeatedly held that such 
candidate qualification rules are subject to section 5. City 
of Rome v. United States, 446 U.S. 156, 160-61 (1980) 
(residence requirement); Dougherty County v. White, 43-9 
U.S. 32 (1978) (mandatory leave for candidate in govern­
ment job ); Hadnott v. Amos, 394 U.S. 358 (1969) (filing 
requirements for independent candidates); Whitely v. 
Williams, 393 U.S. 544, 570 (1969) (filing requirements 
for independent candidates). The Justice Department sec­
tion 5 regulations expressly require submission of “ [a]ny 
change affecting the eligibility of persons to become can­
didates.”  28 C.F.R. § 51.12(g). Submission of changes in 
such laws is required because candidate qualification rules 
may “undermine the effectiveness of voters who wish to 
elect . . . candidates” excluded by those rules. Allen v. 
Board of Elections, 393 U.S. at 570.

The filing rule at issue in this case to an extraordinary 
degree “burdens entry into elective campaigns and, con- 4

4 Complaint, Exhibit 15-1.



10

comitantly, limits the choices available to voters.” Dou­
gherty County v. White, 439 TJ.S. at 40. The standard 
adopted in January 1983 for the March 1983 special elec­
tion required prospective candidates to have filed no later 
than August 31, 1982. By the time that that requirement 
was announced, the deadline it imposed was more than 
four months past. This unusual ex post facto requirement 
had an obvious discriminatory impact. First, the March 
special election was open only to candidates who had been 
willing to participate in the palpably illegal August 1982 
filing, which had been conducted at a time when imple­
mentation of the statute involved violated section 5. Pro­
spective candidates could only obtain a place on the March 
1983 ballot by “ obeying” in August 1982 election rules 
to which an objection had been interposed by the Attorney 
General and which under the Voting Rights Act were 
not and could not then have been “ effective as laws.” 
Connor v. Waller, 421 U.S. 656 (1975). Second, since 
only one black candidate5 had filed for election as a trustee 
of District No. 1 during the illegal August 1982 filing 
period, the rule guaranteed white domination of that Dis­
trict regardless of the wishes of minority voters, and de­
prived those voters of any opportunity to vote for more 
than a single black candidate. Thus, had the decision to 
require an August, 1982 filing been contained in a state 
statute and submitted to the Attorney General, there was 
good reason to believe that he would have objected to it.

The district court nonetheless held that these new elec­
tion procedures did n’ot require preclearance under sec­
tion 5, offering in support of its conclusion several different 
theories, each of which is, in our view, incompatible with 
the Voting Rights Act.

5 Lenon Brooker. He was among the five candidates elected in 
March, 1983.



11

The district court reasoned, first, that once an election 
law is precleared, section 5 is simiply inapplicable to any 
alterations in election procedures which occur in the im­
plementation of that precleared law. Thus the new pro­
cedures involved in this case, it asserted, did not

constitute “changes” within the meaning of Section 5. 
Each of these acts were not alterations of South 
Carolina law, hut rather steps in the implementation 
of & new statute. . . . [T]he preclearance requirement 
of Section 5 applied to the new statute, Act No. 549, 
while the ministerial acts necessary to accomplish the 
statute’s purpose were not “ changes”  contemplated by 
iSeetion 5, and thus did not require preclearance. (App. 
8a-9a).

On the district court’s view, once Act 549 was precleared, 
Hampton County election officials were free to select any 
date for the trustee elections and to adopt any filing re­
quirement, regardless of whether, as in fact occurred, the 
date and filing requirement were different than those in 
the Act submitted to and approved by the Attorney General 
of the United States.

Were that the rule, preclearance of any election law 
under section 5 would free state and local election officials 
to alter at will any other election practice or procedure 
that might be involved in the implementation of the pre­
cleared law. Such an exemption from the coverage of 
section 5, carrying with it an open invitation to evasion 
'of the requirements of the Voting Rights Act, is clearly 
inconsistent with the intent of Congress “ to give the Act 
the broadest possible scope.” Allen v. Board of Elections, 
393 U.S. at 567. This Court has consistently refused to 
create an exception to section 5 for purportedly “minor” 
changes made by local election officials, see e.g. Perldns v. 
Matthews, 400 U.S. 379 (1971), and the Attorney General



12

has properly insisted that even those technical changes 
in election procedures needed to implement longstanding 
election laws must be submitted for preclearance. City of 
Rome v. United States, 446 U.S. 156, 183 (1980).

The district court apparently applied this novel excep­
tion to section 5 in rejecting appellants’ claim that the 
appellees had prematurely abolished the position of Super­
intendent of Education. Act 549 did abolish that position 
as of June 30, 1985, but plaintiffs complained that by mid- 
1983 the Superintendent had been stripped of his prior 
responsibility and authority.6 The district court reasoned 
that since Act 549 had been precleared under section 5, 
“ Section 5 does not reach this aspect of plaintiffs’ corn- 
plant” , despite the fact that abolition of that position was 
being implemented two years earlier than the particular 
date actually authorized by Act 549 and approved by the 
Attorney General.

The district court suggested, in the alternative, that 
the new election procedures at issue in this case had some­
how “been precleared along with the . . . provisions of 
Act No. 549.” (App. 9a). In particular the court asserted, 
apparently with regard to the illegal August 1982 filing 
period, that “ the eventual preclearance of Act 549 ratified 
and validated for Section 5 purposes those acts of imple­
mentation which had already been accomplished.” (App. 
10a). But this Court has repeatedly rejected suggestions 
that the Attorney General be deemed to have approved 
changes in election procedures where those changes were 
not formally submitted to him in full compliance with the 
applicable section 5 regulations. City of Rome v. United 
States, 446 U.S. at 169 n. 6; United States v. Sheffield 
Board of Commissioners, 435 U.S. 110, 136 (1978); Allen

6 Affidavit of John W . Dodge, Hampton County Superintendent 
of Education, dated July 13, 1983.



13

v. Board of Elections, 393 UjS. at 571. It is not sufficient 
that the Attorney General may have known of a proposed 
change; the responsible authorities must “ in some unam­
biguous and recordable manner submit any legislation or 
regulation in question to the Attorney General with a re­
quest for his consideration pursuant to the Act.” Allen 
v. Board of Elections, 393 U.S. at 571. “ [T]he purposes 
Of the Act would plainly be subverted if the Attorney 
General could ever he deemed to have approved a voting 
change when the proposal was neither properly submitted 
nor in fact evaluated by him.” United States v. Sheffield 
Board of Commissioners, 435 U.S. at 136.

In the instant case the Attorney General could not pos­
sibly have evaluated or intended to approve the changes 
at issue when he withdrew his objection to Act 549, since 
that objection was withdrawn in November, 1982, and the 
decisions at issue—to hold a special election and to require 
candidates to have registered in August, 1982—were made 
in January 1983, two months after the Attorney General’s 
action. I f a decision by the Attorney General to preclear 
a new statute has the sweeping effect attributed to it by 
the district court, approving as well both premature imple­
menting steps of which the Attorney General may be un­
aware, and subsequent implementation actions which he 
could not foresee, it would be impossible for the Attorney 
General to carry out his responsibilities under section 5 
in an informed and conscientious manner. Under the best 
of circumstances “ [t]he judgment that the Attorney Gen­
eral must make is a difficult and complex one, and no one 
would argue that it should be made without adequate in­
formation.” Georgia v. United States, 411 UjS. 526, 540 
(1973). But if the Attorney General cannot know in ad­
vance what implementing steps he is implicitly approving, 
it would be manifestly impossible to make the critical 
judgment which Congress contemplated.



14

In addition, the district court concluded that the Novem­
ber, 1982, preclearance of Act 549 ipso facto removed all 
taint of illegality from the August 1982 filing period. Bely­
ing on this Court’s decision in Berry v. Doles, 438 TJ.S. 190 
(1978), the court below held that “ a retroactive validation 
of an election law change under Section 5 could he achieved 
by after-the-fact federal approval.” (App. 10a). In Berry, 
as in Perkins v. Matthews, 400 U.S. 379 (1971), the issue 
before this Court was whether an election held without 
the necessary section 5 preclearance must be voided and 
conducted anew even though the changes at issue subse­
quently received the required preclearance. Neither case 
established a per se rule that such relief was never ap­
propriate. Perkins held only that “ [i]n  certain circum­
stances” invalidation of an action taken in violation of 
section 5 might not be required, 400 U.S. at 396, and Berry 
merely found such circumstances to be present on the par­
ticular facts of that case. 438 U.S. at 192. Both cases 
recognized the desire o f Congress to prevent the imple­
mentation of all election changes which had not received 
section 5 preclearance, not just those to which such pre- 
clearance would ultimately be denied.

Fourteen years ago, noting that the scope of section 5 
raised “complex issues of first impression” , this Court in­
dicated a temporary reluctance to overturn elections con­
ducted without preclearance. Allen v. Board of Elections, 
393 U.S. at 572. In extending section 5 in 1982, however, 
Congress made clear its desire that the Voting Bights Act 
be strictly complied with. Congress amended the bailout 
provisions of the Act to ensure that exemption from 
coverage by section 5 not be accorded to jurisdictions 
which had violated that provision. The Senate Beport 
emphasized:

“ [I] t is the Committee’s intent that compliance with 
Section 5 means that even if an objection is ultimately



15

■withdrawn or the judgment of the District Court for 
the District of Columbia denying a declaratory judg­
ment is vacated on appeal, the jurisdiction is still in 
violation if it had tried to implement the change while 
the objection or declaratory judgment denial was in 
effect.”  S.Rep. No. 97-417, p. 48.

Virtually identical language appears in the House Report, 
H.R. Rep. No. 97-227, p. 42. Both the House and Senate 
Reports include extensive references to the failure of 
covered jurisdictions to make the timely submissions re­
quired by section 5.

As Justice Brennan noted in his concurring opinion in 
Berry, in the absence of any credible threat that actions 
violative of section 5 will be invalidated by the federal 
courts, “ the political units covered by § 5 may have a posi­
tive incentive flagrantly to disregard their clear obliga­
tions and not to seek preclearance of proposed voting 
changes.” 438 H.S. at 194. That is precisely what oc­
curred in the instant case. The defendant election officials 
knowingly implemented Act 549 when it lacked section 5 
preclearance, in the hope that such preclearance would 
eventually be obtained, and in the apparent belief that 
subsequent preclearance would immunize from redress that 
unlawful implementation. The district court’s decision en­
courages precisely the sort of section 5 violation which 
concededly occurred in August 1982, and flies in the face 
of the clear intent o f Congress.

Finally, the district court held that an allegation of 
“ either racially discriminatory purp'ose or effect” was “ es­
sential to a Section 5 action.”  (App. 8a). This is a thinly 
disguised version of a construction of section 5 that has 
been repeatedly and unanimously rejected by this Court. 
In Allen v. Board of Elections this Court held:



16

A  declaratory judgment brought by the State pur­
suant to § 5 requires an adjudication that a new 
enactment does not have the purpose or effect of racial 
discrimination. However, a declaratory judgment ac­
tion brought by a private litigant does not require the 
Court to reach this difficult substantive issue. The 
‘only issue is whether a particular state enactment is 
subject to the provisions of the Voting Rights Act, 
and therefore must he submitted for approval before 
enforcement. 393 U.S. 558-59. (Emphasis in original).

In Perkins v. Matthews, 400 U.S. 410 (1971), the district 
court dismissed a section 5 action because it believed that 
the election law changes at issue lacked any discrimina­
tory purpose or effect. This Court reversed:

The three-judge court misconceived the permissible 
scope of its inquiry into [plaintiffs] allegations. . . . 
What is foreclosed to such district court is what Con­
gress expressly reserved for consideration by the Dis­
trict Court for the District of Columbia or the At­
torney General—the determination 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.” 400 U.S. at 383-85.

That rule has since been reaffirmed in Dougherty County 
v. White, 439 U.S. 32, 42 (1978) and United States v. 
Board of Supervisors, 429 U.S. 642, 645-46 (1977). Neither 
the evidence adduced in a private action to enforce sec­
tion 5, nor the allegations of the complaint in such an 
action, are to be tested by standards which Congress has 
expressly reserved to a preclearance proceeding in the 
District Court for the District of Columbia or before the 
Attorney General.



17

The decision of the district court in this case is thus 
wholly at odds with both the intent of Congress in enact­
ing the Voting Rights Act and the established construc­
tion of section 5. That decision is likely to encourage the 
problems of noncompliance with section 5 which have con­
tinued to engage this Court, See, e.g., Blandmg v. Dubose, 
454 U .S .------  (1982); Ccmady v. Lumberton Board of Ed­
ucation, ------  U.S. ------  (1982) ; McCain v. Lybrand, No.
82-282. Summary affirmance by this Court would require 
federal courts throughout the country to adhere to the ill- 
considered standards applied below, until and unless this 
Court directed otherwise. Hicks v. Miranda, 422 U.S. 332, 
344-45 (1975). Summary affirmance would as a practical 
matter overrule, at least in part, virtually every section 5 
decision handed down by this Court since Allen v. Board 
of Elections, and would wreak havoc in the implementa­
tion and administration of section 5. The questions pre­
sented by this appeal are as substantial as the decision 
of the district court is unsound.



18

CONCLUSION

For the above reasons, this Court should note prob­
able jurisdiction of this appeal.

Respectfully submitted,

John R. H arper II*
3706 North Main Street 
Post Office Box 843 
Columbia, South Carolina 29202 
(802) 799-2798

T homas I. A tkins

M argrett F ord

186 Remsen Street 
Brooklyn, New York 11201 
(212) 858-0800

Jack Greenberg

L ani Guinier

E ric S chnapper 
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

A rmand Derener

5520 33rd Street, N.W. 
Washington, D.C. 20015

Counsel for Appellants 
^Counsel of Record



APPENDIX



la

I n  the

DISTRICT COURT OF THE UNITED STATES 
F or the D istrict of South Carolina 

A iken  D ivision 

Civil Action 83-612-6

Order of District Court, September 9, 1983

National A ssociation for the A dvancement of 
C olored P eople, I nc., etc., et al.,

Plamtiffs,
—versus—

H ampton County E lection Commission, 
a public body politic; et al.,

Defendants.

On July 21, 1983, this case came before a three-judge 
district court for arguments on whether certain actions 
alleged by the plaintiffs constituted changes in election 
practice or procedure which had not received preclearance 
by the United States Attorney General, pursuant to Sec­
tion 5 of the Voting Rights Act of 1965, 42 U.S.O.A. 
§ 1973(c). It was conceded that if there had been no 
“change” within the meaning of Section 5, or if such change 
had been properly precleared, the portion of this action 
brought under Section 5 should be dismissed, and the three- 
judge court dissolved. After consideration of the argu­
ments and memoranda of counsel, this court unanimously 
concluded that there had been no Section 5 changes ac­
complished without preclearance in this matter. For that



2a

reason, the three-judge court dismissed the Section 5 por­
tion of this case in an oral Order. The instant Order in­
corporates and memoralizes that earlier ruling from the 
bench.

The factual background of this action focuses upon the 
history of governance of the public school system of Hamp­
ton County, South Carolina. Since the provisions of Sec­
tion 5 apply to departures from the voting standards, prac­
tices, or procedures that existed on November 1, 1964, that 
date becomes significant as the baseline against which 
Section 5 “ changes” are measured.1 Since well before that 
point, the Hampton County Public School System was 
controlled by the Hampton County Board of Education 
(the “ County Board” ), the Hampton County Superin­
tendent of Education (the “ Superintendent” ), and the 
Boards of Trustees for School Districts One and Two 
(the “ Trustees” ). The six member County Board was 
appointed by the Hampton County Legislative Delegation. 
In turn, the County Board appointed Hampton County 
residents to serve as Trustees of the individual Districts, 
each trustee board having six members. A  County Super­
intendent elected at large by the qualified voters of Hamp­
ton County served as an advisor to the teachers and 
trustees of each district. Each school district operated 
separately under the general supervision of district super­
intendents.

On February 18, 1982 the South Carolina General As­
sembly passed Act No. 547, Acts and Joint Resolutions,

1 Section 5 requires South Carolina and its political subdivi­
sions to obtain federal approval from the United States Attorney 
General or the United States District Court for the District of 
Columbia before enforcing any “practice or procedure with respect 
to voting different from that in force or effect on November 1, 
1964.”

Order of District Court, September 9, 1983



3a

1982 (R311), which changed the government body for the 
Hampton County public school system. Beginning Jan­
uary 1, 1983, the County Board was to be composed of six 
at-large members, who were to be elected, rather than ap­
pointed. The Superintendent, while continuing to be elected 
at-large, was to serve as an ex officio County Board member, 
having all rights and privileges of other members includ­
ing the right to vote. The purpose for electing the County 
Board members, as opposed to appointing them, was to 
create a County Board that would be responsive to con­
solidating School Districts One and Two. Act No. 547 was 
submitted by the South Carolina Attorney General to the 
United States Attorney General, who precleared it, pur­
suant to Section 5 of the Voting Rights Act, on April 28, 
1982.

Act No. 547, however, was superseded by another piece 
of legislation, Act No. 549, Acts and Joint Resolutions, 
1982 (R398). On April 9, 1982, the Governor of South 
Carolina signed Act No. 549, which abolished the Hampton 
County Board of Education and the Hampton County 
Superintendent of Education. Once these offices were 
abolished, their respective duties were to be assumed by 
the Trustees for School District One and Two.

Beginning with the November 1982 general election, the 
District One and Two Trustees were to be elected at-large, 
rather than appointed, by a plurality vote of the electors 
within each respective district. The number of Trustees 
serving on each board was reduced from 6 to 5. Act No. 
549 stated that a candidate offering for election in Novem­
ber 1982 must file with the Hampton County Election Com­
mission during the period August 16-31, 1982. Act No. 
549 contains no language giving local election officials the 
authority to hold a filing period other than the one specified.

Order of District Court, September 9, 1983



4a

These changes in the school system’s governing body 
were contingent upon approval by a majority of the quali­
fied electors voting in a referendum in May 1982. Ac­
cordingly, the Hampton County Election Commission con­
ducted a referendum on May 25, 1982. A  majority of the 
voters approved Act No. 549. Therefore, by mandate of 
the voters of Hampton County, the offices of the County 
Board and Superintendent of Education were to cease to 
exist on June 30, 1982 and June 30, 1985, respectively.

As required by Section 5 of the Voting Rights Act, Act 
No. 549 was submitted to the United States Attorney Gen­
eral for preclearance on June 16, 1982. The next week, 
June 23, the sitting County Board members adopted an 
Order of Consolidation that consolidated Districts One and 
Two into a unitary school district. The following week, 
however, the same County Board voted to rescind its 
earlier Order of Consolidation.

Act No. 547 had already been precleared by the United 
States Attorney General. Thus, Act No. 549, in order to 
supersede Act 547, had to receive preclearance itself.

The situation was further complicated by the fact that 
the Attorney General is given 60 days to respond to a 
request for preclearance. In addition, the Attorney Gen­
eral may request additional information from the sub­
mitting authority. Such a request tolls the original 60- 
day period so that it does not start to run until the addi­
tional information is received. Thus it is possible that the 
submitting jurisdiction may have to wait for 120 days be­
fore it receives a response on preclearance.

When this fact is taken into account, there existed the 
chance that the filing period for candidates for District 
One and Two Trustees, August 16-31, would expire be­
fore the Attorney General precleared Act No. 549. If Act

Order of District Court, September 9, 1983



5a

No. 549 was precleared, pursuant to state law, it would 
supersede Act No. 547. But if preclearance came after 
August 31, Trustee elections could not be held as sched­
uled, because no candidate would have qualified by filing 
during the specified statutory filing period.

To avoid this potential dilemma, the Hampton County 
Election Commissioner began accepting Trustee filings on 
August 16, 1982. On August 23, 1982, a full 60 days after 
Act No. 549 was submitted, the Attorney General objected 
to a portion of Act No. 549. The Attorney General found 
neither a discriminatory purpose nor effect in the change 
of the method of selecting Trustees from appointment to 
election, but he was unable to conclude that the proposal 
to terminate the County Board was not discriminatory 
toward black Hampton County residents. The Attorney 
General noted, however, in his objection letter that the 
“Procedures for the Administration of Section s (28 C.F.R. 
51.44) permit you to request the Attorney General to rê  
consider the objection.”

Because the Attorney General’ s objection was received 
in the middle of the filing period, the Hampton County 
Election Commission continued to accept filings until the 
end of August while Hampton County officials determined 
whether they would submit a request for reconsideration 
of the objection.

Hampton County submitted a request for reconsidera­
tion on September 1, 1982. Because there remained the 
chance that the request for reconsideration would be de­
nied, the Election Commission also began accepting filings 
for the election of County Board members under Act No. 
547. A  candidate who had filed for the office of Trustee 
was also permitted to file for the County Board. As of 
November 1,1982, the Attorney General had not responded

Order of District Court} September 9, 1983



6a

to the request for reconsideration. Accordingly, the Hamp­
ton County Election Commission held elections for County 
Board members on November 2, 1982.

Shortly thereafter, the Attorney General withdrew his 
objection to Act No. 549. In his letter of November 19, 
1982, the Attorney General withdrew his objection to the 
abolition of the County Board because “a reappraisal of 
South Carolina law establish [ed] that the county board 
lacks authority to effect a consolidation and its abolition 
. . . will not have the potentially discriminatory impact we 
had initially perceived.”

Once the Attorney General precleared Act No. 549, Act 
No. 547 became void. Even though the election for County 
Board members had been held in November 1982, Act No. 
547 became a nullity when the Attorney General precleared 
Act No. 549.

Threafter, the Hampton County Election Commission 
prepared to hold elections for the Trustees of Districts 
One and Two. On November 29,1982, Randolph Murdaugh, 
III, Chairman of the Hampton County Election Commis­
sion, wrote the South Carolina Attorney General and re­
quested an Attorney General’ s opinion on the following 
three questions :

(1) Should an election be held to elect Trustees for 
Hampton County School Districts Nos. 1 and 2?

(2) I f so, when should such an election be held?

(3) Should the tiling for the respective District Board 
of Trustees be reopened?

The South Carolina Attorney General responded to these 
questions in a January 4, 1983 opinion. Referring to an 
earlier Attorney General opinion that the proposed con-

Order of District Court) September 9, 1983



7a

solidation of Districts One and Two was of no effect, the 
South Carolina Attorney General concluded that “ the pro­
visions of Act [No. 549] are now in effect and it requires 
that an election he held for the school trustees.” In re­
sponse to Mr. Murdaugh’s question about the timing of 
such an election, the South Carolina Attorney General 
responded: “As soon as possible.” Finally, regarding the 
question as to whether the filing period should be reopened, 
South Carolina’s chief legal officer concluded that “ there 
is no reason to reopen filing as only the date of the elec­
tion has changed.” Acting upon this legal advice, the 
Hampton County Election Commission published a Notice 
of Election setting March 15, 1983, as election day.2

From the foregoing chain of events, plaintiffs have 
identified five claimed Section 5 changes that they urge 
were enforced without proper preclearance by the Hamp­
ton County Election Commission. These alleged changes 
are as follows:

(1) conducting an election for Trustees without first 
certifying the results of the referendum to the 
South Carolina. Code Commissioner as required 
by Section 3 of Act No. 549 (R398);

(2) accepting of filings for the Trustees’ positions 
after the Attorney General objected to Act No. 
549;

(3) (a) conducting an election for Trustees without 
first seeking authority for a filing period;

Order of District Court, September 9, 1983

2 Five Trustees were elected to the District Two Board on March 
15, 1983, all of whom are black. One black person and four white 
persons were elected Trustees of District One.



8a

(b) conducting an election for Trustees without 
holding a filing period subsequent to withdrawal 
of the Attorney General’s objection;

(4) conducting an election for Trustees after the May, 
1982, date specified for such elections in Act No, 
549; and

(5) the abolition of the office of the Hampton County 
Superintendent of Education and the devolution 
of his duties on the Trustees of Hampton County 
School Districts One and Two.

In this court’s view, plaintiffs’ first contention does not 
involve a change in voting practice or procedure within 
the meaning of Section 5. Even though Section 3 of Act 
No. 549 (R398) required certification of the results of the 
referendum by the county election commission to the county 
legislative delegation and the South Carolina Code Com­
missioner, the failure of the election commissioner to so 
certify is purely a state law problem. Moreover, the fail­
ure of the election commissioner to certify the referendum, 
results to the code commission is not alleged to have had 
either racially discriminatory purpose or effect. Such an 
allegation is essential to a Section 5 action. Otherwise, 
federal courts “would henceforth be thrust into the details, 
of virtually every election, tinkering with the state’s elec­
tion machinery, reviewing petitions, registration cards, 
vote tallies, and certificates of election for all manner of 
error and insufficiency under state and federal law.” Powell 
v. Power, 436 F.2d 84, 86 (2d Cir. 1970).

Plaintiffs’ second, third and fourth alleged changes also 
fail to constitute “ changes”  within the meaning of Section 
5. Each of these acts were not alterations of South Caro­
lina law, but rather were steps in the implementation of a

Order of District Court, September 9, 1983



9a

new statute. It is not questioned that Act No. 549 consti­
tuted a Section 5 “ change” that require preclearance, hut 
the administrative actions of accepting filings and con­
ducting an election for Trustees was not a change in South 
Carolina election law, but rather an effort to conform to 
it. In this court’s view, the preclearance requirement of 
Section 5 applied to the new statute, Act No. 549, requir­
ing that it he precleared before becoming effective, while 
the ministerial acts necessary to accomplish the statute’ s 
purpose were not “ changes” contemplated by Section 5,, 
and thus did not require preclearance.

Even if plaintiffs’ second, third and fourth alleged 
changes were to be considered as “ changes” under Section 
5, this court concludes that they have now been precleared 
along with the remaining provisions of Act No. 549. The 
fact that the eventual preclearance of Act No. 549 fol­
lowed the filing period for the Trustees’ positions is not a 
bar under Section 5. In Berry v. Doles, 438 U.S. 190 (1978), 
the Supreme Court recognized the necessity of taking a 
practical approach toward reducing the disruptive delays 
frequently generated by requests for preclearance. The 
Court in Berry was confronted with a Section 5 challenge 
to a change in a Georgia statute regulating voting proce­
dures for the election of the members of the Peach County 
Board of Commissioners of Roads and Revenues. The 
Berry case was filed four days prior to the contested elec­
tion, and the election was held as planned. The three- 
judge district court held that the change, which had not 
been precleared at the time of the election, violated Sec­
tion 5, but refused to set aside the election. On appeal, 
the Supreme Court affirmed the finding of a Section 5 vio­
lation, but reversed the denial of affirmative relief regard­
ing the election. The Supreme Court concluded that the

Order of District Court, September 9, 1983



10a

appropriate remedy was to permit the responsible officials, 
to have 30 days within which to apply pursuant to Section 
5 for approval of the change in question. Citing Perkins 
v. Matthews, 400 U.S. 379 (1971), the Court noted as. 
follows:

We indicated in [Perkms] that “ [i]n certain circum­
stances . . .  it might be appropriate to enter an order 
affording local officials an opportunity to seek federal 
approval and ordering a new election only if local 
officials fail to do so or if the required federal ap­
proval is not forthcoming.” 400 TLS., at 396-397. The 
circumstances present here make such a course ap­
propriate.

In this case, appellees’ undisputed obligation to sub­
mit the 1968 voting law change to a forum designated 
by Congress has not been discharged. We conclude 
that the requirement of federal scrutiny imposed by 
§5 should be satisfied by appellees without further 
delay. . . .  I f approval is obtained, the matter will be 
at an end.

438 U.S. at 192-193.

By its decision in Berry, the Supreme Court clearly in­
dicated that a retroactive validation of an election law 
change under Section 5 could be achieved by after-the- 
fact federal approval. Thus, it is the court’s view that 
in the case at bar the eventual preclearance of Act No. 549 
ratified and validated for Section 5 purposes those acts of 
implementation which had already been accomplished.

The fifth and final change asserted by the plaintiffs, 
the abolition of the office of Hampton County Superin­
tendent of Education and the devolution of his duties on

Order of District Court, September 9, 1983



11a

the Trustees, was provided for by Act No. 549.3 As in­
dicated in the preceding discussion of the second, third, 
and fourth alleged changes, this action was approved when 
the Act itself was precleared by the Attorney General. 
Thus, Section 5 does not reach this aspect of plaintiffs’ 
Complaint.

For the reasons set forth above, the court concludes 
that the five instances alleged by the plaintiffs do not 
represent changes in election practice or procedure within 
the meaning of Section 5 of the Voting Eights Act of 1965 
which were instituted without preclearance by the Attorney 
General. Further, the alleged changes have in fact been 
ratified and approved by the United States Attorney Gen­
eral’s eventual preclearance of Act No. 549 in its entirety. 
Therefore, the court denies plaintiffs’ request for injunc­
tive relief and dismisses those portions of the Complaint 
which seek any relief from this three-judge court under 
Section 5 of the Voting Eights Act of 1965.

A nd It Is So Ordered.

/ s /  E obert F. C hapman 
Eobert F. Chapman 
United States Circuit Judge

/ s /  Charles E. Simons, Jr. 
■Charles E. Simons, Jr. 
United States District Judge

/ s /  F alcon B. H awkins 
Falcon B. Hawkins 
United States District Judge

Order of District Court, September 9, 1983

3 The Hampton County Superintendent of Education was elected 
for a four-year term commencing July 1, 1981 and expiring June 
30,1985. Act No. 549 abolishes this position effective June 30, 1985.



10a

appropriate remedy was to permit the responsible officials, 
to have 30 days within which to apply pursuant to Section 
5 for approval of the change in question. Citing Perkins 
v. Matthews, 400 U.S. 379 (1971), the Court noted as. 
follows :

We indicated in [Perki/ns\ that “ [i] n certain circum­
stances . . .  it might be appropriate to enter an order 
affording local officials an opportunity to seek federal 
approval and ordering a new election only if local 
officials fail to do so or if the required federal ap­
proval is not forthcoming.” 400 U.S., at 396-397. The 
circumstances present here make such a course ap­
propriate.

In this case, appellees’ undisputed obligation to sub­
mit the 1968 voting law change to a forum designated 
by Congress has not been discharged. We conclude 
that the requirement of federal scrutiny imposed by 
§5 should be satisfied by appellees without further 
delay. . . .  I f approval is obtained, the matter will be 
at an end.

438 U.S. at 192-193.

By its decision in Berry, the Supreme Court clearly in­
dicated that a retroactive validation of an election law 
change under Section 5 could be achieved by after-the- 
fact federal approval. Thus, it is the court’s view that 
m the case at bar the eventual preclearance of Act No. 549 
ratified and validated for Section 5 purposes those acts of 
implementation which had already been accomplished.

The fifth and final change asserted by the plaintiffs, 
the abolition of the office of Hampton County Superin­
tendent of Education and the devolution of his duties on

Order of District Court, September 9, 1983



11a

the Trustees, was provided for by Act No. 549.3 As in­
dicated in the preceding discussion of the second, third, 
and fourth alleged changes, this action was approved when 
the Act itself was precleared by the Attorney General. 
Thus, Section 5 does not reach this aspect of plaintiffs’ 
Complaint.

For the reasons set forth above, the court concludes 
that the five instances alleged by the plaintiffs do not 
represent changes in election practice or procedure within 
the meaning of Section 5 of the Voting Rights Act of 1965 
which were instituted without preclearance by the Attorney 
General. Further, the alleged changes have in fact been 
ratified and approved by the United States Attorney Gen­
eral’s eventual preclearance of Act No. 549 in its entirety. 
Therefore, the court denies plaintiffs’ request for injunc­
tive relief and dismisses those portions of the Complaint 
which seek any relief from this three-judge court under 
Section 5 of the Voting Rights Act of 1965.

A nd It Is So Ordered.

/ s /  R obert F. C hapman 
Robert F. Chapman 
United States Circuit Judge

/ s /  Charles E. Simons, Jr. 
Charles E. Simons, Jr. 
United States District Judge

/ s /  F alcon B. H awkins 
Falcon B. Hawkins 
United States District Judge

Order of District Court, September 9, 1983

3 The Hampton County Superintendent of Education was elected 
for a four-year term commencing July 1, 1981 and expiring June 
30,1985. Act No. 549 abolishes this position effective June 30, 1985.



12a

Notice of Appeal

I n the

UNITED STATES DISTRICT COURT 

F ob the D istrict oe S outh Carolina 

A iken  D ivision 

Filed October 10, 1983 

Civil Action No. 83-612-6

National A ssociation fob the A dvancement of 
Colored P eople, I nc., etc., et al.,

Plaintiffs,
v.

H ampton County E lection Commission, etc., et al.,

Defendants.

Plaintiffs National Association for the Advancement of 
Colored People, Inc., Hampton County, South Carolina, 
Branch of the National Association for the Advancement 
of Colored People, Inc., Benjamin Brooks, Jack J. Deloach, 
Jessie M. Taylor, Rev. Ernest McKay, Sr., Soletta Taylor, 
Jesse Lee Carr, W. M. Hazel, John Henry Martin, Wash­
ington G. Garvin, Jr., Dora E. Williams, James Fennell, 
Vernon McQuire, Bosie Green and Earl Capers, hereby 
appeal to the Supreme Court of the United States from 
the order of the District Court denying injunctive relief 
on the claims based upon 42 U.S.C. Section 1973c entered 
in this case on September 9, 1983. This appeal is taken



13a

Notice of Appeal

pursuant to 28 U.S.C. Section 1253 and 42 U.S.C. Section
1973c.

/ s /  John R. H arper II 
John R. H arper II 
3706 North Main Street 
Post Office Box 843 
Columbia, South Carolina 29202 
(803) 799-2798

T homas I. A tkins 
Margrett F ord 
186 Remsen Street 
Brooklyn, New York 11201 
(212) 858-0800

Columbia, South Carolina 

October 10, 1983.



14a

Section 5 of the Voting Rights Act of 1965, as amended, 
42 U.S.C. § 1973c, provides:

§ 1973c. Alteration of voting qualifications and pro­
cedures; action by State or political sub­
division for declaratory judgment of no 
denial or abridgement of voting rights; 
three-judge district court; appeal to Su­
preme Court

Whenever a State or political subdivision with re­
spect to which the prohibitions set forth in section 
1973b(a) of this title based upon determinations made 
under the first sentence of section 1973b (b) of this title 
are in effect shall enact or seek to administer any 
voting qualification or prerequisite to voting, or stan­
dard, practice, or procedure with respect to voting 
different from that in force or effect on November 1, 
1964, or whenever a State or political subdivision with 
respect to which the prohibitions set forth in section 
1973b(a) of this title based upon determinations made 
under the second sentence of section 1973b (b) of this 
title are in effect shall enact or seek to administer any 
voting qualification or prerequisite to voting, or stan­
dard, practice, or procedure with respect to voting 
different from that in force or effect on November 1, 
1968, or whenever a State or politcal subdivision with 
respect to which the prohibitions set forth in section 
1973b(a) of this title based upon determinations made 
under the third sentence of section 1973b(b) of this 
title are in effect shall enact or seek to administer any 
voting qualification or prerequisite to voting, or stan­
dard, practice, or procedure with respect to voting

Voting Rights Act of 1965, Section 5



15a

different from that in force or effect on November 1, 
1972, such State or subdivision may institute an ac­
tion in the United States District Court for the Dis­
trict 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, or in contravention 
of the guarantees set forth in section 1973b(f)(2) of 
this title, and unless and until the court enters such 
judgment no person shall be denied the right to vote 
for failure to comply with such qualification, prerequi­
site, standard, practice, or procedure: Provided, That 
such qualification, prerequisite, standard, practice, or 
procedure may be enforced without such proceeding 
if the qualification, prerequisite, standard, practice, 
or procedure has been submitted by the chief legal 
officer or other appropriate official of such State or 
subdivision to the Attorney General and the Attorney 
General has not interposed an objection within sixty 
days after such submission, or upon good cause shown, 
to facilitate an expedited approval within sixty days 
after such submission, the Attorney General has af­
firmatively indicated that such objection will not be 
made. Neither an affirmative indication by the At­
torney General that no objection will be made, nor 
the Attorney General’s failure to object, nor a declara­
tory judgment entered under this section shall bar 
a subsequent action to enjoin enforcement of such 
qualification, prerequisite, standard, practice, or pro­
cedure. In the event the Attorney General affirma­
tively indicates that no objection will be made within 
the sixty-day period following receipt of a submis­

Voting Rights Act otf 1965, Section 5



16a

sion, the Attorney General may reserve the right to 
reexamine the snbmisson if additional information 
comes to his attention during the remainder of the 
sixty-day period which would otherwise require ob­
jection in accordance with this section. Any action 
under this section shall be heard and determined by 
a court of three judges in accordance with the provi­
sions of section 2284 of Title 28 and any appeal shall 
lie to the Supreme Court.

Voting Rights Act of 1965, Section 5



17a

Act No. 547, South Carolina Laws 1982, provides: 

Composition of Hampton County Board of Education

Section 1. Notwithstanding any other provision of 
law, beginning January 1, 1983, the Hampton County 
Board of Education shall he constituted and elected 
as follows:

A. (1) Six members shall be elected at large from 
the county in an election conducted by the county elec­
tion commission at the time general elections are held 
beginning with the general election of 1982.

(2) To have his name placed on the ballot a person 
must file with the election commission, not less than 
forty-five days before the election, a petition signed 
by not less than fifty qualified electors of the county. 
Each signature 'shall be followed by the voter regis­
tration number of the petitioner. Petitions must be 
approved by the county board of voter registration.

(3) No political party designation shall appear on 
the ballot in connection with the names of candidates.

(4) The six candidates receiving the highest vote in 
the election shall be declared elected. In the event of 
a tie vote, procedures provided in the state election 
laws shall apply.

B. Terms of members shall be for four years and 
until their successors are elected and qualify except 
that in the initial election of 1982 the three members 
elected who receive the smallest vote shall serve ini­
tial terms of two years only.

C. Vacancies shall be filled in the next general elec­
tion for a full term or unexpired term as the case may

Act No. 547, South Carolina Laws (1982)



18a

be except that if a vacancy occurs more than one year 
prior to a general election it shall be filled by appoint­
ment by the Governor upon recommendation of a ma­
jority of the county legislative delegation for a period 
until the vacancy can be filled by election.

D. In addition to the elected members, the county 
superintendent of education shall serve ex officio as 
a member of the board and in such capacity shall have 
all rights and privileges of other board members, in­
cluding the right to vote.

E. As of December 31, 1982, the terms of all board 
members then serving shall expire.

F. Except as provided in this act the poAvers, duties 
and procedures of the board as prescribed by laAv shall 
continue in full force and effect.

Time effective

Section 2. This act shall take effect upon approval 
by the Governor.

Act No. 547, South Carolina Laws (1982)



19a

Act No. 549, South Carolina Laws, provides:

Board of education abolished, trustees elected

Section 1. Contingent upon approval of the total 
proposal by a majority of the qualified electors voting 
in a referendum to be held in May, 1982, as hereafter 
provided for, the following shall occur:

(a) The Hampton County Board of Education shall 
be abolished at midnight on June 30, 1982; the office 
of the Hampton County Superintendent of Education 
shall be abolished at midnight on June 30, 1985; upon 
abolition their respective duties shall devolve upon 
the trustees for Hampton County School Districts 
Nos. 1 and 2; and after June 30, 1982, the Hampton 
County Treasurer shall pay any proper claim ap­
proved by a majority of the trustees of either School 
District No. 1 or School District No. 2, on behalf of 
their respective districts, provided sufficient funds are 
on deposit in the proper district account.

(b) Beginning with the general election in Novem­
ber, 1982, trustees for Hampton County School Dis­
tricts Nos. 1 and 2 shall be elected by a plurality vote 
of the electors within their respective district qualified 
and voting at the general election for representatives. 
The number of trustees shall be five for each school 
district and their terms of office shall begin January 
1, 1983. The three candidates in each district receiv­
ing the highest number of votes shall serve for terms 
of four years and the remaining two trustees shall 
have initial terms of two years, after which all terms 
shall be for four years. In each case trustees shall 
serve until their successors are elected and qualify

Act No. 549, South Carolina Laws (1982)



20a

and each school board shall elect its chairman annually. 
Trustees shall receive no salary but shall be reim­
bursed for actual expenses incurred. A candidate for 
membership on a school board must reside in the school 
district he seeks to represent and all candidates offer­
ing for election in November, 1982, must file during 
the period August 16-31, 1982.

Beferendum conducted

Section 2. The Hampton County Commissioners of 
Election shall conduct a referendum within the respec­
tive county school districts during May, 1982, to deter­
mine whether the provisions of Section 1 of this act 
shall be implemented. The specific date for the ref­
erendum shall be determined by the county election 
commission. The county election commission shall 
thrice publish notice of the referendum in a news­
paper of a countywide circulation, the last publica­
tion to be not less than one nor more than two weeks 
before the referendum. All election laws contained in 
Title 7 of the 1976 Code applicable to county refer- 
endums shall apply. Ballots shall be prepared and dis­
tributed to the various voting precincts of the county 
with the following printed thereon:

“ Shall the Hampton County Board of Education be 
abolished on June 30, 1982, and its duties placed upon 
the trustees for Hampton County School Districts 
Nos. 1 and 2; shall the office of the Hampton County 
Superintendent of Education be abolished on June 30, 
1985, and its duties placed upon the trustees for 
Hampton County School Districts Nos. 1 and 2; and 
shall the trustees for Hampton County School Dis-

Act No. 549, South Carolina Laws (1982)



21a

tricts Nos. 1 'and 2 (five trustees per district), rather 
than being appointed, be elected by plurality vote dur­
ing general elections for representatives beginning 
with the election in Novembr, 1982, with their terms 
to begin January 1, 1983, and with terms of office to 
be four years, except that of those initially elected 
two from each district shall have initial terms of two 
years ?

I agree to the above proposals □  Yes □  No

Place a check or cross mark in the block which ex­
presses your answer.”

Results certified

Section 3. The Hampton County Commissioners of 
Election shall certify the results of the referendum 
directed in Section 2 of this act to the Hampton County 
Legislative Delegation and to the South Carolina Code 
Commissioner.

Act No. 549, South Carolina Laws (1982)



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