NAACP v. Hampton County Election Commission Brief for Appellants

    No. 83-1015

I n  t h e

Supreme ©nurt nf tbr Mnttrb Stairs
October T erm, 1983

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

Appellants,
v.

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOUTH CAROLINA

BRIEF FOR APPELLANTS

John R. H arper, II*
3706 North Main Street 
Post Office Box 843 
Columbia, South Carolina 29202 
(803) 771-4723

Thomas I. A tkins 
Margaret F ord

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

J. LeV onne Chambers 
Lani Guinier 
Eric Schnapper 

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

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

Counsel for Appellants

*Ccrnsel of Record



QUESTIONS PRESENTED*

(1) Did the Dist ri ct Court err in 

holding that, in p r e c l e a r i n g  an e l e c t i o n  

law under s e c t i o n  5 of the Voting Rights 

Act, the Attorney General must be deemed 

to pr e c l e a r  as well all future changes in 

election p r a c t i c e s  and p r o c e d u r e s  which 

may occur in the i m p l e m e n t a t i o n  of that 

law?

(2) Did the Dist ri ct Court err in 

holding that changes in election practices 

and p r o c e d u r e s  need not be p r e c l e a r e d  

under section 5 of the Voting Rights Act 

if those changes occur in the implementa­

tion of a s e p a r a t e  e l e c t i o n  law which 

it s e l f  had earl ie r re c e i v e d  such pre- 

clearance?

* TTTe p a r t i e s  to this appeal are set out 
at p. ii of the J u r i s d i c t i o n a l  S t a t e ­
ment.



-  11

(3) Did the District Court err in 

holding that the i m p l e m e n t a t i o n  of a 

n o n - p r e c l e a r e d  ch ange in e l e c t i o n  p r o ­

cedures cannot be enjoined under section 3 

of the Voting Rights Act unless that 

ch an ge is in fact " a ll eg ed to have had 

either racially discriminatory pu rp os e or 

effect?"

(4) Did the Dist ri ct Court err in 

holding that state action k n o w i n g l y  and 

i l l e g a l l y  i m p l e m e n t i n g  a c h a n g e  in 

election law to which the Attorney General 

had o b j e c t e d  under section 3 is never to 

be i n v a l i d a t e d  by the federal c o ur ts so 

long as that change subsequently receives 

preclearance?.



i n

TABLE OF CONTENTS

Pa^e

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

Table of Authorities ..................  v

Opinion Below ........................... 2

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

Statutes Involved ...................... 3

Statement of the Case ................. 3

Summary of Argument ...................  14

Argument .................................  19

I. The Nature of the
Changes in Appellees'
Election Practices.........  22

II. The Changes in Appellees' 
Election Practices Lack
The Necessary Pre- 
clearance Under Sec­
tion 5 of the Voting 
Rights Act .................  29

(1) The "Ministerial Act"
Exception....................  30

(2) Preclearance of Unknown
Future Changes ............  33

(3) "Retroactive Valida­
tion" .......................... 38

(4) The Requirement of a
Claim of Discrimina­
tion .......................... 44



Page

Conclusion ............................... 46

APPENDIX-

Voting Rights Act of 1965,
Section 5 .......................... 1a

Act No. 547, South Carolina
Laws (1982) .......................  5a

Act No. 549, South Carolina
Laws (1982) .......................  8a

- i v -



V

TABLE OF A U THORITIES

Cases Page

Allen v. State Board of 
Elections, 393 U.S.
344 (1969) ........................... 17

19,23,25,32
34.38.41.44

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

23,40,41,43

City of Rome v. United States,
446 U.S. 1 56 (1980) ...............  24,32

33-34

Conner v. Waller, 421 U.S. 565
(1975) ................................  20,27

Dougherty County v. White,
439 U.S. 32 ( 1978) ...............25,26,45

Georgia v. United States,
411 U.S. 526 (1973) ...............  36

Hadnott v. Amos, 394 U.S. 358
(1968) ................................  15,25

McCain v. Lybrand, 79 L.Ed.2d
271 ( 1 984) ...........................  1 7,19

20.36.37.45

McDaniel v. Sanchez, 452 U.S.
1 30 ( 1 981 ) ...........................  19,20

Perkins v. Mathews, 400 U.S.
379 ( 1 971 ) ...........................  18

31.40.41.45



vi

Cases

United States v. Board of 
Supervisors, 429 U.S. 642
( 1 977) ................................  45

United States v. Sheffield 
Board of Commissioners,
435 U.S. 1 10 (1978) ...............  34

Whitley v. Williams, 393 U.S.
544 (1969) ...........................  1 5,25

Statutes

28 U.S.C. § 1253 ......................  3

28 U.S.C. § 2101 ......................  2

42 U.S.C. § 1973(c) ..................  14,22

Section 5, Voting Rights Act
of 1965, 42 U.S.C. § 1973c ...... Passim

Act No. 547, South Carolina
Laws ( 1 982) .................. .... 3,4,9,39

Act No. 549, South Carolina
Laws ( 1 982) .......................... 3,6

7,8-9,12,22
24,26,28,30
33,35,38,39

R e g u l a t i o n s :

28 C.F.R. § 51.12(g) .................  25

28 C.F.R. § 51.1 2 ( k) .................  16,29

28 C.F.R. § 51.20 .....................  7



vi i

Ca se 3 Page

R u l e s :

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

Rule 29.1, Supreme Court Rules ....  2

Legislative M a t e r i a l s :

S. Rep. No. 97-417 (1982) .........20,21,42

H.R. Rep. No. 97-227 (1981 ) ...... 20,21,42



1

No. 83-1015

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, 

etc., et al . ,

Appe ll an ts,

v .

HAMPTON COUNTY ELECTION COMMISSION, 
etc., e_t a l . ,

Ap pe llees.

On Appeal From the United States 
District Court For 

The District of South Carolina

BRIEF FOR APPELL A N T S



2

Opinion Below

The o p i n i o n  of the district court of 

September 9, 1983, which is not re po rt ed , 

is set out at pp. la -lla of the appendix 

to the Jurisdictional Statement.

Jurisdiction

The order of the three-judge district 

court, d e n y i n g  i n j u n c t i v e  r e l i e f  and 

d i s m i s s i n g  the c o m p l a i n t  in so fa r as it 

sought r e l i e f  under s e c t i o n  5 of the 

Voting Rights Act, was e n t e r e d  on

S e p t e m b e r  9, 1983 . (J.S. App . la). A

timely n o t i c e  of appeal was filed on
1

Octo be r 10, 1983. ( 3 . 5 . App. 12a) . See

28 U.S.C. § 2101(b) . On December 7, 1983,

the Ch ief J u s t i c e e x te nd ed the date for

docketing this appeal until D e c e m b e r  16,

1 The thirtieth day after September 9, 1983, 
was a Sunday, October 9, 1983. Accord­
ingly, the notice of appeal was due on 
October 1 0, 1983, the date on which it was 
filed. Rule 6(a), Federal Rules of Civil 
Procedure; Supreme Court Rule 29.1.



3

1983. The appeal was docketed on December 

16, 1983. Probable jurisdiction was noted 

on June 18, 1984. The j u r i s d i c t i o n  of

this Court is invoked under 28 U.S.C. § 

1233.

Statutes Involved

Section 5 of the Voting Rights Act of 

1965, as amended, 42 U.S.C. § 1973c, is 

set out at pp. 1a-5a of the appendix 

hereto. Acts 547 and 549 of the South 

C a r o l i n a  Laws of 1982 are set out at pp. 

5a-8a and pp. 8a-13a of the appendix.

Statement of the Case 

From prior to 1964 until 1982 the 

Hampton Co unty public school sy st em was 

c o n t r o l l e d  by the Hampton County Board of 

Education. During this pe ri od the six 

members of the County Board were appointed 

by the Hampton County members of the South 

C a r o l i n a  l e g i s l a t u r e .  The school system 

was in turn di vi de d into two school 

d i s t r i c t s  with s e p a r a t e  Bo ar ds of Trus­



4

tees, whose members were appointed by the 

County Board. Over 9135 of all white 

public school st u d e n t s  in the county

attend the s c h o ol s in D i s t r i c t  No . 1,

while the st ud en t p o p u l a t i o n  of the

District No . 2 schools is 92% black. Each

school dist ri ct has operated autonomously

under the general s u p e r v i s i o n  of the

Co unty Board and of an e l e c t e d  County 

Superintendent of Education.

On F e b r u a r y  1 8, 1 982 , the South

C a ro li na l e g i s l a t u r e  e n a c t e d  Act 547, 

wh ich pr o v i d e d  that, beginning January 1, 

1983, the six members of the Co unty Board 

were to be elected rather than appointed. 

(App. 1O a -1 la ). The S u p e r i n t e n d e n t  of 

E d u c a t i o n ,  while continuing to be elected 

at-large, was to serve as a seventh voting 

m e m b e r  of the newly c o n s t i t u t e d  Co unty 

Board. The first e l e c t i o n s  for the new 

Co un ty Board were to be c o n d u c t e d  in 

November, 1982. The purpose for e l e c t i n g



5

the County Board memb er s, rather than 

appointing them, was apparently to cr eate 

a County Board responsive to consolidating 

School D i s t r i c t s  Nos. 1 and 2. Act 547 

was p r o m p t l y  s u b m it te d to the United 

States Attorney General for p r e c l e a r a n c e  

under s e c t i o n  5 of the Voting Rights Act, 

and received that p r e c l e a r a n c e  on April 

28, 1982. (3.A. 52a).

The a d o p t i o n  of Act 547, however, 

provoked substantial opposition among the 

white r e s i d e n t s  of D i s t r i c t  No. 1. 

According to the c o m p la in t, those wh ites 

c i r c u l a t e d  a p e t i t i o n  c a l l i n g  for the 

abolition of both the County Board and the 

p o s i t i o n  of County S u p e r i n t e n d e n t  of 

Education, thus se v e r i n g  the c o n n e c t i o n  

b e t w e e n  D i s t r i c t s  One and Two. ( 3 . A. 

11a). As a result of that pe ti t i o n ,  and 

with the b a c k i n g  of the H a m p t o n  County 

Council, a white me mber of the co u n t y  

legislative delegation introduced legisla-



6

tion to o v e r t u r n  Act 547. This new

measure was e n a c t e d  on April 9, 1982 as

Act 549. (App. 8a-13a). Act 549

a b o l i s h e d  the Hampton County Board of 

E d u c a t i o n  and p r ov id ed that its du ties 

were to be a s s u me d by the Trustees of 

School D i s t r i c t s  1 and 2. B e g i n n i n g  in 

November, 1982, the Trus te es of those 

school d i s t r i c t s  were to be elected 

at-large at the general election. Act 549 

pr o v i d e d  that c a n d i d a t e s  for election to 

these ne wly r e c o n s t i t u t e d  school bo a r d s  

were to file with the c o u n t y  E l ec ti on 

Commission between August 16 and 31, 1982. 

Act 549 also a b o l is he d, as of June 30, 

1985, the elected position of S u p e r i n t e n ­

dent of Education. Implementation of Act 

549, ho w e v e r ,  r e q u i r e d  a p p r o v a l  of a 

r e f e r e n d u m  of Hampton County voters to be 

conducted in May, 1982.

When Act 549 was a d o p t e d  by the 

legislature there was ample time, a total



7

of 129 days, to obtain preclearance before 

the scheduled filing pe riod was to begin 

on August 16. Although the Department of 

Justice regulations e x p r e s s l y  a u t h o r i z e d  

c o n s i d e r a t i o n  of a p r e c l e a r a n c e  request 

prior to the hold in g of any n e c e s s a r y  

r e f e r e n d u m ,  28 C.F.R. § 51.20, no effort 

was made to submit Act 549 du ring either 

April or May of 1982. When the county 

r e f e r e n d u m  a p p r o v e d  Act 549 on May 25, 

1982, there still r e m a i n e d  s u f f i c i e n t  

time, 83 days, in which to ob ta in 

p r e c l e a r a n c e  prior to the commencement of 

the filing period. But st ate and local 

o f f i c i a l s  d e l a y e d  still fu rther. Not 

until June 22, 1982, some 28 days later, 

was the su bmission received by the United 

States A t t o r n e y  General (J.A. 58a); a

total of 74 days e l a p s e d  b e t w e e n  the 

e n a c t m e n t  of Act No. 549 by the state 

l e g i s l a t u r e  and the submission of the Act 

to the Attorney General. By June 28 the



8

time re ma i n i n g  until the statutory filing 

period was to begin was less than the 60 

days n o r m a l l y  r e qu ir ed for p r e c l e a r a n c e  

under section 5.

As a result of these delays, the 

Attorney General had taken no action on 

Act 549 when the filing period for 

e l e c t i o n s  under that Act c o m m e n c e d  on 

August 16, 1982. D e s p it e the fact that 

section 5 of the Voting Rights Act forbids 

any i m p l e m e n t a t i o n  of a new e l e c t i o n  

pr a c t i c e  or p r o c e d u r e  which lacks pre- 

c l e a r a n c e ,  H a m p to n C o un ty e l e c t i o n  

o f f i c i a l s ,  who were well aware of the 

r e q u i r e m e n t s  of federal law, began to 

accept petitions from c a n d i d a t e s  s e e k in g 

e l e c t i o n  in the new di st ricts created by 

Act 549. On August 23, 1982, the Attorney 

General objected to Act 549 insofar as it 

abolished the County Board. (J.A. 58a). 

D e s p i t e  this o b j e c t i o n ,  H a m p t o n  County 

officials continued to i m p l e m e n t  the Act



9

549 filing period. On September 1, 1982, 

after that filing period had ended, county 

o f f i c i a l s  s u b m i t t e d  to the At t o r n e y  

General a request for r e c o n s i d e r a t i o n  of 

his objection. (J.A. 6 3 a- 65 a). They also 

began for the first time to accept filings 

for e l e c t i o n  under Act 547, the only law 

which then had the necessary preclearance. 

On N o v e m b e r  2, 1982, h a vi ng r e ce iv ed no 

response to their request for reconsidera­

tion, c o u n t y  e l e c t i o n  o f f i c i a l s  held 

elections for the County Board under Act 

547. Of the six board members elected on 

that date, three were b l a c k  and three 

were white.

On N o v e m b e r  19, 1982, the A t t o r n e y  

General withdrew his objection to Act 549. 

(J.A. 65a). On No v e m b e r  29, 1982, the 

chairman of the Hampton County E l e c t i o n  

C o m m i s s i o n  wrote the South Ca r o l i n a  

Attorney General and requested his opinion 

on three questions:



10

(1) Should an e l e c t i o n  be held to 
elect Trus te es for Hampton 
County School D i s t r i c t s  1 and 
2?

(2) If so, when s h ou ld such an 
election be held?

(3) Should the filing period for the 
r e s p e c t i v e  D i st ri ct Boards of 
T r u s t e e s  be " r e o p e n e d " ?  (J.A.

The state A t t o r n e y  General r e s p o n d e d  on 

January 4, 1983, advising the County that 

it should hold new elections "[a]s soon as 

po ssible" and that it need not "reopen" 

the filing period. (J.A. 67a). Acting on 

this advice, the Hampton County E l ec ti on 

C o m m i s s i o n  c o n d u c t e d  e l e c t i o n s  in D i s ­

tricts 1 and 2 on March 15, 1983. The six 

i n d i v i d u a l s  elected in November, 1982, to 

the County Board of E d u c a t i o n  were never 

permitted to take office.

The a d v i c e  given by the state 

A t t o r n e y  Gene ra l and acted upon by the 

co un ty had two d i s t i n c t  e f f e c t s  of



i m p o r t a n c e  to this l i t i g a t i o n .  First, 

although the express la n g u a g e  of Act 549 

a u t h o r i z e d  e l e c t i o n  of District Trustees 

only du ring a general el ec t i o n ,  the 

Trus te es were in fact chosen at a special 

off-year el ec tion. Second, d e s p it e the 

fact that Act 549 c o n t e m p l a t e d  that the 

filing period would begin s e v e r a l  mo n t h s  

after the Act went into effect, the filing 

period for the 1 983 e l e c t i o n  in fact 

cl osed more than two m o n t h s  be fo re the 

statute became e f f e ct iv e. Thus the only 

time at w h ic h c a n d i d a t e s  for Dist ri ct 

Trustee were p e r m i t t e d  to file for that 

o f f i c e  was when the c o n d u c t  of such 

filings was illegal under section 5 of the 

Voting Rights Act.

The a p p e l l a n t s ,  two civil rights 

o r g a n i z a t i o n s  and several r e s i d e n t s  of 

H a m p to n County, c o m m e n c e d  this action in 

the United States Dist ri ct Court for the 

Di s t r i c t  of South C a r o l i n a  s e e k in g an



12

i n j u n c t i o n  to forbid the p r o p o s e d  e l e c ­

tions as illegal under s e c t i o n  5 of the
2

Voting Rights Act, and to place in office 

the duly e l e c t e d  m e m b e r s  of the County 

Board of Ed u c a t i o n .  A p p e l l a n t s  alleged 

that the p r o p o s e d  e l e c t i o n s  v i o l a t e d  

s e c t io n 5 because they were to occur at a 

time other than that p r o v i d e d  for in Act 

549, and b e c a u s e  the e l e c t i o n s  were 

limited to c a n d i d a t e s  who had filed for 

e l e c t i o n  du r i n g  the illegal August 1982

The c o m p l a i n t  also a l l e g e d  that the 
Election Co mmission, in v i o l a t i o n  of 
section 3 of Act No. 549, had failed to 
c e r t i f y  to the South C a r o l i n a  Code 
Commissioner the results of the May 1982 
referendum. (J.A. 17a-18a). Although we 
disagree with the district court's reasons 
for rejecting this claim, our review of 
the record indicates that that certifica­
tion was in fact made. Accordingly, we do 
not seek review of the district court's 
denial of injunctive relief regarding the 
alleged lack of certification.



13

filing period. A p p e ll an ts also alleged 

that the defendants had a l r e a d y  st r i p p e d  

of all a u t h o r i t y  the elected Superinten­

dent of Education, some two years e a r l ie r 

than authorized by the statute approved by 

the At t o r n e y  General under s e c t i o n  5. 

( J. A. 18a, 70a) .

A p p e l l a n t s  u n s u c c e s s f u l l y  sought a 

p r e l i m i n a r y  i n j u n c t i o n  to prev en t the 

h o l d in g of the March, 1983 special 

election. The single judge to whom that 

regu es t was made denied it on the express 

premise, c o n c u r r e d  in by c o u n se l for 

a p p e l l e e s ,  that the results of the March 

e l e c t i o n  would be i n v a l i d a t e d  if the 

election were subsequently held to violate 

section 5:

The c o m p l a i n t  also a l l e g e d  that the 
abolition of the elected County Board of 
Education violated section 2 of the Voting 
Rights Act and the Fourteenth and F i f ­
teenth Amendments . (3.A. 22a-23a). These 
claims were not dismissed, and are the 
subject of continuing litigation in the 
district c o u r t .



14

THE COURT: What's go ing to ha pp en
if a three Judge Court hears it 
and they say you were wr on g....
They would set the e l e c t i o n
aside and go all —  have to go 
a l 1 over it a g ai n.

[COUNSEL FOR SCHOOL BOARDS]: Exactly. 
I think that's exactly right.4

S u b s e q u e n t l y  a three j u dg e court was 

c o n v e n e d  to hear the case, as required by 

42 U.S.C. § 1973c. On September 9, 1983,

the d i s t r i c t  court de ni ed a p pe ll an ts '

request for i n j u n c t i v e  r e l i e f  and d i s ­

mi s s e d  their c o m p l a i n t  i n s o f a r  as it 

sought to state a claim under section 3 of 

the Voting Rights Act. (J.S. App.

la-1 la).

SUMMARY OF ARGUMENT

I.

This case i n v o l v e s  t h re e changes in 

the South Carolina election practices with 

regard to the election of school officials

4 Transcript of Hearing of March 14, 1983, 
p p . 18-19.



15

in Hampton County.

First the date for the e l e c t i o n  of 

trustees of the local school boards was 

sh if te d from November 1982 to March 1983. 

This Court has p r e v i o u s l y  held that a 

ch a n g e  in the date of an e l e c t i o n  is 

subject to section 5 of the Voting Rights 

Act. Berry v. D o le s. 438 U.S. 190 (1978).

Seco nd, August 16-31, 1982, was

e s t a b l i s h e d  as the period d u ri ng which 

c a n d i d a t e s  were r e qu ir ed to file for the 

March 1983 e l e c ti on s. Prior to the 

d e c i s i o n  to set that filing period, state 

law did not provide for any filing pe riod 

for a March el ec ti on . This Court has 

r e p e a t e d l y  held that c a n d i d a t e  filing 

rules are subj ec t to section 5. Hadnott 

v. A m o s , 394 U.S. 358 (1969); Whitley v. 

Wi l l i a m s , 393 U.S. 544, 570 (1969).

Third, the d e f e n d a n t s  a l l e g e d l y  

a b o l i s h e d  as a pr ac t i c a l  m a t t e r  by the 

spring of 1983 the e l e c t e d  p o s i t i o n  of



16

Co u n t y  S u p e r i n t e n d e n t  of Ed ucation, 

stripping the occu pa nt of that of fice of 

his authority. State legislation approved 

by the A t t o r n e y  General under s e c t i o n  5 

did not a u t h o r i z e  the a b o l i t i o n  of that 

office until 1985. A s h o r t e n i n g  of the 

term of o f f i c e  of an elected official is 

subject to section 5. 28 C.F.R. § 51.12 

(k).

II.

The d i s t r i c t  court in h o l d i n g  that 

these changes did not r e q u i r e  s u b m i s s i o n  

under S e c t io n 5 i m p r o p e r l y  e s t a b l i s h e d  

four new exceptions to the requirements of 

the Voting Rights Act.

(1) The district court held that any 

alteration of election practices was not a 

"cha ng e" within the scope of section 5 if 

that a l t e r a t i o n  o c c u r r e d  in c o n n e c t i o n  

with the i m p l e m e n t a t i o n  of a n o t h e r  law 

which had itself been precleared. On this 

view, once a si n g l e  new e l e c t i o n  law is



17

precleared, state authorities are free to 

adopt any related rules they please with 

regard to r e g i s t r a t i o n ,  voting, or 

c a n d i d a t e s ,  without o b t a i n i n g  pre- 

c l e a r a n c e  under the Voting Rights Act. 

Such a rule is c l e a r l y  i n c o n s i s t e n t  with 

the d e c i s i o n s  of this Court that Congress 

i n te nd ed "to give the Act the b r o a d e s t  

p o s s i b l e  scope." Allen v. Board of 

El ec ti on s, 393 U.S. 544, 567 (1969).

(2) The di s t r i c t  court held that 

when the Attorney General pr ec le ar s a new 

state e l e c t i o n  law, he i m p l i c i t l y  p r e ­

clears in advance all s u b s e q u e n t  c h a n g e s  

in e l e c t i o n  p r a c t i c e s  which are made in 

the i m p l e m e n t a t i o n  of that law. This 

Court held in McCain v. L y b r a n d , 79 

L . E d .2 d 271 ( 1 984), that the A t t o r n e y  

General co uld not be de em ed to have 

a p p r o v e d  e l e c t i o n  laws of wh ich he was 

actually aware unless those c h a n g e s  were 

f o rm al ly s u b m i t t e d  for p r e c l e a r a n c e .  A



18

f o rt io ri the A t t o r n e y  General cannot be 

de emed to have a p pr ov ed u n k n o w n  future 

changes of which he was not and could not 

have been aware.

(3) The d i s t r i c t  court held that if 

a covered jurisdiction violates s e c t i o n  3 

by i m p l e m e n t i n g  a new election law which 

lacks p r e c l e a r a n c e ,  a s u b s e q u e n t  pre- 

clearance of the law automatically renders 

lawful the previous v i o l a t i o n  of federal 

law. Perk in s v. M a t h e w s , 400 U.S. 379 

(1971), h o w e v e r ,  held that whether such 

subsequent pr ec le ar an ce r e m o v e s  the need 

for further relief must be resolved based 

on the p a r t i c u l a r  c i r c u m s t a n c e s  of each 

case.

(4) The d i s t r i c t  court held that an 

allegation of "either racially discrimina­

tory purpose or effect" is "essential to a 

s e c t i o n  5 ac t i o n . "  This Court has 

r e p e a t e d l y  held that no such claim is 

necessary in an action to en fo rc e s e c t i o n



19

5 . Allen v. Board of El ec ti on s, 39 3 U . S . 

544, 558-59 (1969).

ARGUMENT

The fami li ar provisions of section 5 

of the Voting Rights Act were first 

enacted in 1965 to prevent the implementa­

tion of any changes in election p r a c t i c e s  

and p r o c e d u r e s  in the j u r i s d i c t i o n s  

covered by s e c t i o n  5 until and unless 

there was a d e t e r m i n a t i o n  that those 

changes had no d i s c r i m i n a t o r y  p u r p os e or 

effect. Section 5 requires that, prior to 

any such i m p l e m e n t a t i o n ,  a l t e r a t i o n s  in 

state or local election practices must be 

s u b m i t t e d  for approval by either the

Attorney General or the District Court for
5

the Di s t r i c t  of Columbia. Any practices 

c o n s t i t u t i n g  c h a n ge s in e l e c t i o n  p r o c e ­

dures are not "effective as laws until and

5 Those procedures were described in detail 
in past decisions of this Court. McCain v. 
Lybrand , 79 L.Ed.2d 271 , 278-8(3 (l$fU ) ;
McDaniel v. Sanchez, 452 U.S. 1 30, 1 37 and 
cases cited at 14 (1981).



20

u n l e s s  c l e a r e d  p u rs ua nt to § 5." Conner 

v. W a l l e r , 421 U.S. 656, 656 (1975) (per 

curiam) .

Congress' d e c i s i o n  to renew the

Voting Rights Act in 1970 and 1975 was

based to a s i g n i f i c a n t  d e g r e e  on its

conclusion that there had been w i d e s p r e a d

v i o l a t i o n s  of sect io n 5. McCain v .

L y b r a n d , 79 L .E d . 2d 271, 281, 284 n. 23

(1984). That same problem lay behind the
6

rene wa l of the Act in 1982. The Senate 

report of that year noted:

Noncompliance generally has taken two 
forms. First, there has been
c o n t i n u e d  w i d e s p r e a d  failure to 
submit proposed c h a n g e s  in e l e c t i o n  
law for Section 5 re v i e w  before 
attempting to im pl e m e n t  the change. 
Seco nd, there c o n t i n u e  to be 
i n s t a n c e s  of c h a n g e s  h a vi ng been 
i m p l e m e n t e d  d e s p it e a prior Depart­
ment of Justice objection.^

6 Because the 1982 extension of the Voting 
Rights Act is the controlling statute in 
this case, the legislative history of that 
extension is of p a r t i c u l a r  r e l e v a n c e .  
McDaniel v. Sanchez, 452 U.S. 1 30, 147 n.
5T TTTSTT-----------

7 S. Rep. No. 97-417, p. 1 3 (1 982); see also
H.R. Rep. No. 97-227, p. 13 (1981).



21

The House report found that in 1980 alone

the A t t o r n e y  General had been forced to

f o rm al ly r e q u es t the s u b m i s s i o n  of 124

ch an ge s which never r e c e i v e d  s e c t i o n  5 
8

p r e c l e a r a n c e .  The Se nate report

emphasized that this continuing pattern of

i l l e g a l i t y  was p a r t i c u l a r l y  in e x c u s a b l e

years after the v a l i d i t y  and scope of

s e c t i o n  5 had been re so lved, and noted

that m i n o r i t y  vo ters often found it

n e c e s s a r y  to file suit to compel com-
9

p l i a n c e  with s e c t i o n  5. This is such 

an action.

I. THE N A T U R E  OF THE C H A N G E S  IN 
- p m r m ,  m - c- n ) ^  ^ a-h i c e $— r

This appeal i n v o l v e s  three distinct 

e l e c t i o n  p r a c t i c e s  which were not in 

effect on November 1, 1964, the date after 

which all changes in e l e c t i o n  p r o c e d u r e s

8 H.R. Rep. No. 97-227, p. 13.
9 S. Rep. No. 97-417, p. 48 (1982).



22

require section 5 preclearance.

The first such ch an ge in e l e c t i o n  

p r a c t i c e s  was the al te ration of the date 

for conducting the initial election of the 

t r u s t e e s  of the local school boards from 

N o ve mb er 1982 to March 1983. As of 

No v e m b e r  1, 1964, of course, no elections 

for those boar ds , and thus no e l e c t i o n  

dates, were a u t h o r i z e d .  Act No. 349, 

which p r o v i d e d  for such e l e c t i o n s  and 

u l t i m a t e l y  r e c e i v e d  s e c t i o n  5 pre- 

c l e a r a n c e ,  a u t h o r i z e d  the e l e c t i o n  of 

d i s t r i c t  t r u s t e e s  only at the "general 

e l e c t i o n "  held in N o ve mb er of even- 

numbered years in South Carolina.

If South Ca r o l i n a  had e n a c t e d  a 

s t a t u t e  a l t e r i n g  the e l e c t i o n  date from 

the November general election to March of 

an o f f - y e a r ,  such l e g i s l a t i o n  would 

clearly have been a change in a "standard, 

p r a c t i c e  or p r o c e d u r e  with r e s p ec t to 

voting..." 42 U.S.C. § 1973c. This Court



23

has repeatedly held that Congress intended 

section 5 "to reach any state e n a c t m e n t  

which a l t e re d the e l e c t i o n  law of a 

c o v e r e d  State in even a minor way." Allen 

v. State Board of Elections. 393 U.S. 544, 

566 ( 1 969). In Berry v . Do les , 438 U.S. 

190 (1978), this Court held that section 5 

applied to a state s t a t u t e  c h a n g i n g  the 

time at wh ich c e r t ai n G e o r g i a  co unty 

officials were to be elected. The result 

is no d i f f e r e n t  me r e l y  b e c a u s e  here the 

change was a c h i e v e d  with ou t any formal 

l e g i s l a t i o n .  Such a change in the timing 

of an e l e c t i o n  has an o b v i o u s  p o t e n t i a l  

adve rs e impact on the number of minority 

voters p a r t i c i p a t i n g  when, as here, the 

e l e c t i o n  is moved from a regular general 

el e c t i o n  to a special e l e c t i o n ,  since 

voter turnout at special e l e c t i o n s  is 

predictably lower. In the i n s t an t case, 

for example, over 6000 H a m p t o n  County 

voters participated in the N o v e m b e r  1982



24

gene ra l e l e c t i o n ,  wh ile less than half 

that nu mb er voted in the March 1983 

special election.

Second, the p r o c e d u r e s  adop te d by 

appellees effectively constituted a change 

in the c a n d i d a t e  filing rules. Act 549, 

as a p p r o v e d  by the A t t o r n e y  general, 

a u t h o r i z e d  only two filing peri od s, the 

August 16-31 period for a c o n t e m p l a t e d  

November, 1982, school board election, and 

the usual filing period for s u b s e q u e n t  

school board el e c t i o n s .  The Act neither 

established any filing period for a March 

1983 spec ia l election, nor sanctioned the 

use of the August 1982 f i l i ng s for any 

e l e c t i o n  other than that to occur in 

November, 1982.

This Court has r e p e a t e d l y  held that 

candidate qualification rules are s u b j ec t 

to s e c t io n 5. City qf Rome v. United 

S t a t e s , 446 U.S. 156, 160-61 (1980)

10 Complaint, Exhibit 15-1.

1 0



25

( r e s i d e n c e  requirement); Dougherty County 

v . W h i t e , 439 U.S. 32 ( 1 978) (mandatory 

leave for c a n d i d a t e  in g o v e r n m e n t  job); 

H a d n ot t v. A m o s , 394 U.S. 358 ( 1 969) 

(filing r e q u i r e m e n t s  for i n d e p e n d e n t  

candidates); Whitley v. Wi l l i a m s , 393 U.S. 

544, 570 (1969) (filing reguirements for 

i n d e p e n d e n t  c a n d i d a t e s ) .  The Justice 

Department section 5 regulations expressly 

reguire s u b m i s s i o n  of " [ a ]n y ch ange 

a f f e c t i n g  the e l i g i b i l i t y  of p e r s o n s  to 

become candidates." 28 C.F.R. § 51.12(g). 

S u b m i s s i o n  of c h a n g e s  in such laws is 

required because c a n d i d a t e  q u a l i f i c a t i o n  

rules may "undermine the effectiveness of 

voters who wish to elect ... c a n d i d a t e s "  

e x c l u d e d  by those rules. Allen v. Board 

of Elections, 393 U.S. at 570.

The new filing rule at issue in 

this case to an e x t r a o r d i n a r y  de gr ee 

" b u r d e n s  e n tr y into e l e c t i v e  c a m p a i g n s  

and, c o n c o m i t a n t l y ,  li mits the c h o i c e s



26

available to voters." Dougherty County v.

W h i t e , 439 U . S . at 40. The stan da rd

adopted in January 1983 for the March 1983

special e l e c t i o n  re q u i r e d  p r o s p e c t i v e

c a n d i d a t e s  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 mo n t h s  past.

This unusual ex post facto requirement had

an obvious discriminatory impact. First,

the March sp ec ia l elec ti on was open only

to c a n d i d a t e s  who had been will in g to

participate in the palpably illegal August

1982 filing, which had been conducted at a

time when implementation of Act No. 549

violated s e c t i o n  5. P r o s p e c t i v e  ca n d i -  
1 1

dates co uld only ob ta in a place on the

11 Several blacks sought unsuccessfully to 
file for e l c t i o n  to the local bo ar ds 
following the January, 1983 announcement 
that there would be an election in March. 
Among those prevented from seeking office 
was appellant Brooks, a former member of 
the C o u n t y  Board of Education. (J.A. 
14 a -1 5a).



27

March 1983 ba llot by "obeying" in August

1982 election rules to which an o b j e c t i o n

had been i n t e r p o s e d  by the A t to rn ey

General and which under, the Voting Rights

Act were not and could not then have been

"effective as laws." Connor v. Wa ll er, 421

U.S. 636 (1975). Second, s i nc e only one
12

black candidate had filed for election as 

a trustee of Dist ri ct No. 1 during the 

illegal August 1982 filing period, the 

rule guaranteed white d o m i n a t i o n  of that 

Di s t r i c t  r e g a r d l e s s  of the wishes of 

minority voters, and deprived those voters 

of any opportunity to vote for more than a 

single b l a c k  ca n d i d a t e .  Thus, had the 

decision to require an August, 1982 filing 

been s u b m i t t e d  to the A t t o r n e y  Ge neral, 

there is good reason to b e l i e v e  that he 

would have objected to it.

^ 2 Lenon Broo ke r. He was among the five 
candidates elected in March, 1983.



28

Third, the complaint alleged that in 

early 1983 the appellees had as a p r a c t i ­

cal ma tt er abolished the elected position 

of County S u p e r i n t e n d e n t  of Ed uc at io n. 

(J.A. 18 a- 19a). An a f f i d a v i t  of the 

S u p e r i n t e n d e n t  de t a i l e d  the manner in 

which, as ea rly as July 1, 1982, he had 

been l a r g e l y  st r i p p e d  of his au t h o r i t y .  

(J.A. 70 a- 7 3 a ) .  On a m o t i o n  to dismiss 

the district court was obligated to accept 

these a l l e g a t i o n s  as true. The elected 

position of S u p e r i n t e n d e n t  of E d u c a t i o n  

e x i s te d prior to 1 982 . The current, four 

year term of Superintendent Dodge does not 

ex p i r e  until June 30, 1985. Act No. 549 

pr o v i d e s  for the a b o l i t i o n  of that 

position as of June 30, 1985, but does not 

alter the authority of the S u p e r i n t e n d e n t  

prior to that date. If, as alle ge d, the 

appellees have e f f e c t i v e l y  s h o r t e n e d  the 

term of the S u p e r i n t e n d e n t  of Education, 

that is c l e a r l y  a ch a n g e  c o v e r e d  by



29

s e c t i o n  5. Section 5 1 . 1 2 ( k ) of the

Department of Justice regulations provides

that section 5 applies to "[a]ny change in

the term of an elective office ... e.g. by
13

shortening the term of an office...."

II. THE C H A N G E S  IN A P P E L L E E S '
E L E C T I O N P R A C T I C E S  L A C K  THE
n E c e s S a r V P R E C L E A R A N C E U N D E R
S E C T I O N  5 ‘Of fHE V O T I N G RIGdfS
ATT.

The d i s t r i c t  court c o n c l u d e d  that 

none of the election p r a c t i c e  c h a n ge s at 

issue in this case r e q u i r e d  a formal 

preclearance under section 5 of the Voting 

Rights Act. The d i s t r i c t  co urt offered 

several d i s t i n c t  t h eo ri es for re a c h i n g  

this c o n c l u s i o n ,  each of which, we urge, 

was c l e a r l y  i n c o n s i s t e n t  with the d e c i ­

sions of this Court.

1-5 The district court's opinion contains no 
clear e x p l a n a t i o n  of why that court 
rejected this claim. We assume that the 
lower court did so because of one of the 
doctrines discussed infra.



30

(1) The "Ministerial Act” Exception 

The d i s t r i c t  court reasoned, first, 

that once an election law is p r e c l e a r e d ,  

s e c t io n 3 is si mply i n a p p l i c a b l e  to any 

alterations in el e c t i o n  p r o c e d u r e s  which 

occur in the i m p l e m e n t a t i o n  of that 

precleared law. Thus the new p r o c e d u r e s  

i n vo lv ed in this case, it as se r t e d ,  did 

not

c o n s t i t u t e  " c h a ng es " wi thin the 
meaning of Section 3. Each of these 
acts were not a l t e r a t i o n s  of South 
C a r o l i n a  law, but r a th er steps in 
the i m p l e m e n t a t i o n  of a new 
s t a t u t e . . . .  [T]he p r e c l e a r a n c e  
r e q u i r e m e n t  of Sect io n 5 applied to 
the new statute, Act No. 549, while 
the m i n i s t e r i a l  acts n e c e s s a r y  to 
accomplish the statute's purpose were 
not " c h a n g e s "  c o n t e m p l a t e d  by 
Section 5, and thus did not r e q u ir e 
preclearance. (J.S. App. 8a-9a).

On the district court's view, once Act 549 

was p r e c l e a r e d ,  Hampton County election 

officials were free to select any date for 

the trus te e e l e c t i o n s  and to adopt any 

filing requirement., regardless of whether,



31

as in fact o c c u r r e d ,  the date and filing 

requirement were different than those in 

the Act s u b m i t t e d  to and approved by the 

Attorney General of the United States.

Under the theory a d v a n c e d  by the 

district court, the p r e c l e a r a n c e  of any 

s i ng le election law automatically carries 

with it a sort of prospective i n d u l g e n c e ,  

i m m u n i z i n g  from sect io n 5 s c r u t i n y  any 

subsequent change in election law practice 

or p r o c e d u r e  so long as that ch an ge is 

somehow related to the i m p l e m e n t a t i o n  of 

the ap p r o v e d  statute. This Court has 

consistently refused to c r e a t e  an e x c e p ­

tion to section 5 for purportedly "minor” 

changes made by local election o f f i c i a l s ,

see e .g . Perkins v. Mathews, 400 U.S. 379

(1971), and the A t t o r n e y General has

properly i n s i s t e d  that even those t e c h ­

nical c h a n g e s  in e l e c t i o n  p r o c e d u r e s  

needed to implement longstanding e l e c t i o n  

laws must be s u b m i t t e d  for preclearance.



32

City of Rome v. United S t a t e s , 446 U.S. 

156, 183 (1980).

The c h a n g e s  at issue in this case 

were in fact far from minor. On the 

c o n t r a r y ,  they invo lv ed a c h a n g e  in the 

date of an election, an alteration of the 

filing r e q u i r e m e n t s  for one office, and 

the e f f e c t i v e  a b o l i t i o n  in m i d - t e r m  of 

anot he r e l e c t i v e  offi ce. Under the 

doctrine espoused by the d i s t r i c t  court, 

any ch o i c e  made by e l e c t i o n  of f i c i a l s ,  

regardless of its practical importance, is 

o u t s i d e  the scope of section 5 so long as 

the choice was made in c o n n e c t i o n  with a 

new e l e c t i o n  law. Such a swee pi ng 

exemption from the coverage of s e c t i o n  5, 

c a r r y i n g  with it an open i n v i t a t i o n  to 

evasion of the requirements of the Voting 

Rights Act, is c l e a r l y  inconsistent with 

the intent of C o ng re ss "to give the Act 

the b r o a d e s t  p o s s i b l e  s c o p e. " Allen v .

Bqard of Elections, 393 U.S. at 567.



33

(2) Preclearance of Unknown Future 
Changes

The d i s t r i c t  court suggested, in the 

a l t e r n a t i v e ,  that the new e l e c t i o n  

p r o c e d u r e s  at issue in this case had 

somehow "been p r e c l e a r e d  along with the 

... p r o v i s i o n s  of Act No. 349." (J.S.

App. 9a). In p a r t i c u l a r  the court 

as se rt ed , a p p a r e n t l y  with re ga rd to the 

illegal August 1982 filing period, that 

"the e v en tu al p r e c l e a r a n c e  of Act 549 

r a ti fi ed and v a l i d a t e d  for Sect io n 5 

p u r p o s e s  those acts of i m p l e m e n t a t i o n  

which had a l r e a d y  been a c c o m p l i s h e d . "

( A p p . 1 0 a ) .

This Court, however, has repeatedly 

re j e c t e d  s u g g e s t i o n s  that the A t t o r n e y  

General be deemed to have approved changes 

in election procedures where those changes 

were not formally submitted to him in full 

compliance with the a p p l i c a b l e  s e c t i o n  5 

r e g u l a t i o n s .  City of Rome v. United



34

S t a t e s , 446 U.S. at 169 n. 6; United 

States v. S h e f f i e l d  Board of C o m m i s ­

s i o n e r s , 435 U.S. 110, 136 (1978); Allen 

v. Board of E l e c t i o n s , 393 U.S. at 571. 

Even if the Attorney General had known of 

the p r o p o s e d  c h a n g e s  in this case, that 

would not have been s u f f i c i e n t ;  the 

r e s p o n s i b l e  a u t h o r i t i e s  must "in some 

u n a m b i g u o u s  and r e c o r d a b l e  manner submit 

any legislation or regulation in q u e s t i o n  

to the Attorney General with a reguest for 

his c o n s i d e r a t i o n  pu r s u a n t  to the Act." 

Allen v. Board of Elections, 393 U.S. at 

571. "[ T]he p u r p o s e s  of the Act would 

plai nl y be s u b v e r t e d  if the A t t o r n e y  

General co uld ever be d e e m e d  to have 

approved a voting change when the proposal 

was neither properly submitted nor in fact 

e v a l u a t e d  by him." United St ates v. 

Sheffield Board of Commissioners, 435 U.S.

at 136



35

In the inst an t case the At t o r n e y  

General could not possibly have e v a l u a t e d  

or inte nd ed to ap pr ov e the c h a n g e s  at 

issue when he w i t h d r e w  his o b j e c t i o n  to 

Act 549, since that o b j e c t i o n  was 

w i t h d r a w n  in November, 1982, and the 

d e c i s i o n s  at issue -- to hold a special 

election and to require candidates to have 

registered in August, 1982 -- were made in 

Janu ar y 1983, two m o n t h s  after the 

A t t o r n e y  General's action. If a decision 

by the Attorney General to p r ec le ar a new 

statute has the sweeping effect attributed 

to it by the district court, a p p r o v i n g  as 

well both premature implementing steps of 

which the Attorney General may be unaware, 

and s u b s e q u e n t  i m p l e m e n t a t i o n  ac ti on s 

which he could not fo resee, it would be 

i m p o s s i b l e  for the A t t o r n e y  General to 

carry out his r e s p o n s i b i l i t i e s  under 

section 5 in an informed and conscientious

manner. Under the best of c i r c u m s t a n c e s



36

"[ t] he judg me nt that the Attorney General 

must make is a difficult and comp le x one, 

and no one would argue that it should be 

made w i t h ou t ad e q u a t e  i n f o r m a t i o n . "  

G e o r g i a  v. United S t a t e s , 411 U.S. 326, 

340 (1973). But if the Attorney General 

cannot know in advance what i m p l e m e n t i n g  

steps he is implicitly approving, it would 

be m a n i f e s t l y  i m p o s s i b l e  to make the 

c r i t i c a l  j u d g m e n t  which Congress contem­

plated.

This a s pe ct of the dist ri ct court's 

opinion p r e s e n t s  in a more e x t r e m e  form 

the a r g u m e n t  unanimously rejected by this 

Court last term in Mc Cain v. Ly br an d, 79 

L .E d .2d 271 (1984). In Mc Cain the 

d e f e n d a n t  o f f i c i a l s  urged that a 1966 

stat ut e had been p r e c l e a r e d  by the 

Attorney General, even though that statute 

had only been pr o v i d e d  to the A t t o r n e y  

General in connection with the submission 

of a s e p a r a t e  law adop te d in 1971, and



37

d e s p i t e  the fact that no formal request 

had ever been made for a p p r o v a l  of the 

e a r l i e r  m e a s u r e .  A l t h o u g h  the Attorney 

General in McCain a c t u a l l y  knew of the 

e x i s t e n c e  of the 1966 statute, this Court 

d e c l i n e d  to assume, as South C a r o l i n a  

o f f i c i a l s  there urged, that the Attorney 

General had tacitly given his a p pr ov al to 

that stat ut e, e x p l a i n i n g  that to do so 

"would require a wild flight of i m a g i n a ­

tion." 79 L . E d . 2 d  at 285. The s u g g e s ­

tions of the district court in this case, 

that the Attorney General somehow approved 

in November, 1982, of c h a n g e s  which were 

not even d e c i d e d  upon until 1 983 , and 

which it was thus l i t e r a l l y  i m p o s s i b l e  

that the A t t o r n e y  General knew about at 

the time, is even less plausible than the 

flight of i m a g i n a t i o n  s p u r n e d  by this 

Court in McCain.



38

(3) "Retroactive Validation"1 ■ ' ..... 1 ■ "  .. 1 1 —

The district court also held that the

November, 1982, p r e c l e a r a n c e  of Act 549

ipso facto removed all taint of illegality

from the Au gust 1982 filing period.

Relying on this Court's decision in Berry

v. D o l e s , 438 U.S. 190 (1978), the court

b e lo w held that "a retroactive validation

of an election law change under Sect io n 5

could be a c h i e v e d  by a f t e r - t h e - f a c t

federal approval." (J.S. App. 10a). The

appellee Election Commission characterizes
14

this "principle of retroactive approval" 

as meaning that the a p p r o v a l  of a ch a n g e  

in e l e c t i o n  law under s e c t i o n  5 a u t o m a ­

t i c a l l y  and invariably approves nunc pro 

tunc all v i o l a t i o n s  of the Voting Rights 

Act o c c a s i o n e d  by the illegal implementa­

tion of that new state law. Beca us e of 

this rule, the C o m m i s s i o n  s u g g e s t s ,  so

14 Election Commission Motion to Affirm, p. 
17.



39

long as Act 347 had not yet been rejected

by the Attorney General under s e c t i o n  5,

local of fi ci al s would have been "derelict
1 5

in their duty" if they had failed to 

enforce that change in state election law. 

Even after the A t t o r n e y  General d i s ­

approved Act 349, further i m p l e m e n t a t i o n ,  

the C o m m i s s i o n  asserts, was "neces-

sitat[ed]" by the fact that a request for
1 6

r e c o n s i d e r a t i o n  was p e nd in g. In the 

Commission's view the d e c i s i o n  b e lo w not 

merely permits but actually requires local 

a u t h o r i t i e s  to i m p l em en t an u n a p p r o v e d  

change in election law in violation of the 

Voting Rights Act so long as there is any 

hope that that v i o l a t i o n  will later be 

forgiven under the "principle of r e t r o a c ­

tive a p p r o v a l . "  B e c a us e of this p r i n ­

ciple, the C o m m i s s i o n  a s se rt s, the 

i s s u a n c e  of an i n j u n c t i o n  a g a i ns t the

15 _Id. p. 10.
16 I d . , 17 n. 2.



40

h o l d i n g  of an e l e c t i o n  wh ich v i o l a t e s

s e c t io n 5 should be "the e x c e p t i o n a l
17

remedy rather than the normal one."

This e x t r e m e  rule of r e t r o a c t i v e  

approval finds no support in the decisions 

of this Court. In B e rr y, as in Perkins v . 

M a t h e w s , 400 U.S. 379 (1971), the issue 

b e fo re this Court was whether an election 

held w i t h ou t the n e c e s s a r y  s e c t i o n  5 

p r e c l e a r a n c e  should be v o i d e d  and c o n ­

ducted anew even though the c h a n g e s  at 

issue s u b s e q u e n t l y  received the required 

preclearance. Neither case e s t a b l i s h e d  a 

P e r se rule that such r e l i e f  was never 

appropriate. Perkins held only that "[i]n 

c e r t a i n  circumstances" invalidation of an 

action taken in v i o l a t i o n  of s e c t i o n  3 

m i gh t not be re quired, 400 U.S. at 396, 

and Berry merely found such circumstances 

to be p r e s e n t  on the particular facts of 

that case. 438 U.S. at 192. On remand in

17 I d . , 12 n. 1.



41

Perkins the district court in fact ordered

a new e l e c t i o n  d e s p i t e  the fact that the

new election law p r e m a t u r e l y  i m p l e m e n t e d

at the previous election had subsequently
18

be en a p pr ov ed by the Attorney General. 

Both Perkins and Berry r e c o g n i z e d  the 

d e si re of C o n g r e s s  to prevent the imple­

me nt at io n of all e l e c t i o n  c h a n g e s  which 

had not r e c e i v e d  se ct io n 5 preclearance, 

not just those to which such p r e c l e a r a n c e  

would ultimately be denied.

Fourteen years ago, n o t i n g  that the 

scope of section 5 raised "complex issues 

of first i m p r e s s i o n " ,  this Court i n d i ­

cated a t e m p o r a r y  re lu ct an ce to overturn 

elections conducted without p r e c l e a r a n c e .  

Allen v. Board of E l e c t i o n s , 393 U.S. at 

572. In e x t e n d i n g  s e c t i o n  5 in 1982, 

however, C o n g r e s s  made clear its de si re 

that the Voting Rights Act be st r i c t l y

18 Supplemental Judgment, June 19, 1972, p.
2 .



42

c o m p l i e d  with. C o n g r e s s  a m e n de d the 

bailout p r o v i s i o n s  of the Act to en sure 

that e x e m p t i o n  from coverage by section 5 

not be accorded to jurisdictions which had 

v i o l a t e d  that p r o v is io n. The Senate 

Report emphasized:

[I]t is the C o m m i t t e e ' s  intent that 
compliance with Section 5 means that 
even if an o b j e c t i o n  is u l t i m a t e l y  
w i t h d r a w n  or the j u d g m e n t  of the 
D i s t r i c t  Court for the D i s t r i c t  of 
Co l u m b i a  deny in g a d e c l a r a t o r y  
j u d g m e n t  is vaca te d on appeal, the 
jurisdiction is still in violation if 
it had tried to implement the change 
while the o b j e c t i o n  or d e c l a r a t o r y  
judgment denial was in effect. S.Rep. 
No. 97-417, p. 48.

V i r t u a l l y  i d e n t i c a l  l a n g u a g e  a p p e ar s in 

the House Report. H.R. Rep. No. 97-227, 

p. 42. Both the House and Senate Reports 

incl ud e e x t e n s i v e  r e f e r e n c e s  to the 

failure of c o v e r e d  ju ri sd ictions to make 

the timely submissions required by section 

5. (See p. 20-22, s u p r a .)



43

As J u s t ic e Bren na n no ted in his 

c o n c u r r i n g  o p i n io n in B e r r y , in the 

a b s e n c e  of any c r e d i b l e  threat that 

acti on s v i o l a t i v e  of s e c t i o n  5 will be 

i n v a l i d a t e d  by the federal courts, "the 

political units cove re d by §3 may have a 

positive incentive flagrantly to disregard 

their clear o b l i g a t i o n s  and not to seek 

p r e c l e a r a n c e  of proposed voting changes." 

438 U.S. at 194. That is e x a c t l y  what 

o c c u r r e d  in the instant case. The 

d e f e n d a n t  e l e c t i o n  o f f i c i a l s  k n o w i n g l y  

implemented Act 349 when it lacked section 

5 p r e c l e a r a n c e ,  in the hope that such 

preclearance would eventually be obtained, 

and in the apparent belief that subsequent 

p r e c l e a r a n c e  would immunize from redress 

that v i o l a t i o n  of federal law. The 

d i s t r i c t  c o u r t ' s  d e c i s i o n  e n c o u r a g e s  

precisely the sort of section 5 v i o l a t i o n  

which unde ni ab ly occurred in August 1982,



44

and flies in the face of the clear intent 

of Congress.

(4) The Requirement of a Claim of 
BTscrimination

Finally, the district court held that 

an allegation of "either racially d i s c r i ­

m i n a t o r y  p u r p o s e  or effect" was "essen­

tial to a Section 5 a c t i o n . "  (J.S. App. 

8a). This is a thinly disguised version 

of a c o n s t r u c t i o n  of s e c t i o n  5 that has 

been r e p e a t e d l y  and un animously rejected 

by this Court. In Allen v. Board of 

Elections this Court held:

A declaratory judgment brought by the 
State p u r s u a n t  to §5 r e q u i r e s  an 
a d j u d i c a t i o n  that a new e n a c t m e n t  
does not have the p u r p o s e  or ef fect 
of racial discrimination. However, a 
declaratory j u d g m e n t  ac t i o n  b r o u gh t 
by a p r i v a t e  l i t i g a n t  does not 
requir e the Court to re ach this 
d i f f i c u l t  s u b s t a n t i v e  issue. The 
only issue is whet he r a p a r t i c u l a r  
state e n a c t m e n t  is s u b j e c t  to the 
p r o v i s i o n s  of the Voting Rights Act, 
and therefore must be s u b m i t t e d  for 
ap p r o v a l  be f o r e  e n f o r c e m e n t .  393 
U.S. at 558-59. ( E m p ha si s in
o r ig in al).



45

In Perkins v. M a t t h e w s , 400 U.S. 410 

(1971), the d i s t r i c t  court d i s m i s s e d  a 

section 5 action because it b e l i e v e d  that 

the e l e c t i o n  law c h a n g e s  at issue lacked 

any d i s c r i m i n a t o r y  p u r p o s e  or effect. 

This Court reversed:

The t h r e e - j u d g e  court m i s c o n c e i v e d  
the permissible scope of its i n q u ir y 
into [ p l a i n t i f f ' s ]  a l l e g a t i o n s . . . .  
What is foreclosed to such d i st ri ct 
court is what C o n g r e s s  e x p r e s s l y  
r e s e r v e d  for c o n s i d e r a t i o n  by the 
D i s t r i c t  Court for the D i s t r i c t  of 
Columbia or the A t t o r n e y  General -- 
the d e t e r m i n a t i o n  w h e t h e r  a covered 
ch ange does or does not have the 
p u r p o s e  or effect "of d e n y i n g  or 
a b r i d g i n g  the right to vote on 
account of race or color." 400 U.S. 
at 383-85.

That rule has since been r e a f f i r m e d  in 

Dougherty County v. W h i t e , 439 U.S. 32, 42 

( 1 9 7 8) , United States v. Board of Super­

v i so rs , 429 U.S. 642, 645-46 (1977), and 

McCain v. L y b r a n d , 79 L.Ed.2d 271, 282 n.

1 7 ( 1 984) N e i t he r the evidence adduced



46

in a p r i v at e action to enforce section 5, 

nor the a l l e g a t i o n s  of the c o m p l a i n t  in 

such an action, are to be tested by 

s t a n d a r d s  which Congress has e x p r e s s l y  

r e se rv ed to a p r e c l e a r a n c e  proceeding in 

the Dist ri ct Court for the D i st ri ct of 

Columbia or before the Attorney General.

CONCL US ION

For the above reasons, the decision 

of the district court should be reversed.

R e spectfully submit ted,

in mo:" H7nrFrR-,"Tr*---------
3706 North Main Street 
Post Office Box 843 
Columbia, S.C. 29202 
(803) 771-4723

THOMAS I. ATKINS 
MAGRETT FORD

186 Remsen Street 
Brooklyn, New York 11201 
(212) 838-0800



47

3. LeVONNE CHAMBERS 
LANI GUINIER 
ERIC SCHNAPPER 

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

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

Counsel for A ppellants  

* Counsel of Record



1a

VOTING RIGHTS ACT OF 1965, SECTION 5

Section 5 of the Voting Rights Act of 

1965, as amended, 42 U.S.C. §1973c, 

provides:

§1973c. A l t e ra ti on of voting 
q u a l i f i c a t i o n s  and p r o c e ­
dures; action by State or 
po li tical s u b d i v i s i o n  for 
d e c l a r a t o r y  j u d g m e n t  of no 
denial or a b r i d g e m e n t  of 
voting rights; t h r e e - j u d g e  
district co urt; appeal to 
Supreme Court

When ev er a State or p o l i t i c a l  

s u b d i v i s i o n  with respect to which the 

prohibitions set forth in section 1973b(a) 

of this title based upon d e t e r m i n a t i o n s  

made under the first s e n t e n c e  of s e c t io n 

1973b(b) of this title are in effect shall 

enact or seek to a d m i n i s t e r  any voting 

q u a l i f i c a t i o n  or prerequisite to voting, 

or standard, practice, or p r o c e d u r e  with 

respect to voting different from that in



2a

force or ef f e c t  on No vember 1, 1964, or 

whenever a State or political s u b d i v i s i o n  

with respect to which the prohibitions set 

forth in s e c t i o n  1973b(a) of this title 

are in e f f e c t  shall enact or seek to 

a d m i n i s t e r  any vo ting q u a l i f i c a t i o n  or 

p r e r e q u i s i t e  to voting, or st andard, 

practice, or p r o c e d u r e  with respect to 

voting d i f f e r e n t  from that in force or 

effect on November 1, 1968, or wh e n e v e r  a 

State or p o l i t i c a l  s u b d i v i s i o n  with 

respect to which the p r o h i b i t i o n s  set 

forth in s e c t i o n  1973b(a) of this title 

based upon d e t e r m i n a t i o n s  made under the 

third sentence of section 1973b(b) of this 

title are in effect shall enact or seek to 

a d m i n i s t e r  any voting q u a l i f i c a t i o n  or 

p r e r e q u i s i t e  to voting, or s t a n da rd , 

p r a c ti ce , or p r o c e d u r e  with respect to 

voting d i f f e r e n t  from that in force or 

ef fect on November 1, 1972, such State or 

subdivision may institute an action in the



3a

United States District Court for the 

Di strict of Columbia for a d e c l a r a t o r y  

ju d g m e n t  that such qualification, prere- 

quiste, standard, practice, or p r o c e d u r e  

does not have the purpose and will not 

have the effect of denying or a b r i d g i n g  

the right to vote on acco un t of race or 

color, or in c o n t r a v e n t i o n  of the 

g u a r a n t e e s  set forth in s e c t i o n  1973(b) 

(f)(2) of this title, and unless and until 

the court en te rs such judgment no person 

shall be de nied the right to vote for 

failure to comply with such qualification, 

p r e r e q u i s i t e ,  standard, pr ac tice, or 

procedure: Provided, That such qualifica­

tion, prerequisite, standard, practice, or 

p r o c e d u r e  may be en f o r c e d  without such 

p r o c e e d i n g  if the q u a l i f i c a t i o n ,  p r e r e ­

quisite, standard, practice or p r o c e d u r e  

may be enforced without such proceeding if 

the qualification, prerequisite, standard, 

pr ac tice, or procedure has been submitted



4a

by the c h i e f  legal o f f i c e r  or other 

a p p r o p r i a t e  o f fi ci al of such State or 

s u b d i v i s i o n  to the A t t o r n e y  General and 

the Attorney General has not interposed an 

o b j e c t i o n  w i t h i n  sixty days after such 

submission, or upon good cause shown, to 

f a c i l i t a t e  an e x p e d i t e d  ap p r o v a l  within 

sixty days after such s u b m i s s i o n ,  the 

A t t o r n e y  General has a f f i r m a t i v e l y  

indicated that such objections will not be 

made. Neit he r an af firmative indication 

by the Attorney General that no o b j e c t i o n  

will be made, nor the Attorney General's 

failure to object, nor a d e c l a r a t o r y  

j u d g m e n t  entered under this section shall 

bar a subsequent action to enjoin enforce­

ment of such qualification, prerequisite, 

standard, practice, or procedure. In the 

event the A t t o r n e y  General affirmatively 

indicates that no o b j e c t i o n  will be made 

w i th in the s i x t y - d a y  p e r i o d  fo ll ow in g 

re ce ip t of a s u b m i s s i o n ,  the A t t o r n e y



5a

General may reserve the right to reexamine 

the submission if ad di ti on al i n f o r m a t i o n  

co mes to his a t t e n t i o n  du ri ng the r e ­

mainder of the s i x t y - d a y  pe riod which 

would o t h e r w i s e  require o b j e c t i o n  in 

accordance with this section. Any action 

under this sect io n shall be heard and 

determined by a court of three ju dges in 

a c c o r d a n c e  with the provisions of section 

2284 of Title 28 and any appeal shall lie 

to the Supreme Court.

ACT NO. 547, SOUTH CAROLINA LAWS (1982)

Act No. 547, South C a r o l i n a  Laws 1982, 

provides:

C o m p o s i t i o n  of Hampton County Board 

of Education SECTION 1. N o t w i t h s t a n d i n g  

any other p r o v i s i o n  of law, b e g i n n i n g  

January 1, 1983, the Hampton Co unty Board 

of E d u c a t i o n  shall be c o n s t i t u t e d  and

elected as follows:



6a

A. (1) Six m e m b e r s  shall be elected at 

large from the c o un ty in an e l e c t i o n  

c o n d u c t e d  by the co un ty e l e c t i o n  c o m m i ­

ssion at the time general e l e c t i o n s  are 

held b e g i n n i n g  with the general election 

of 1982.

(2) To have his name pl aced on the 

ballot a pe rs on must file with the 

e l e c t i o n  c o m m i s s i o n ,  not less than 

f o r t y - f i v e  days be fore the e l e c t i o n ,  a 

p e t i t i o n  s i gn ed by not less than fifty 

qu al ified e l e c t o r s  of the coun ty . Each 

s i g n a t u r e  shall be followed by the voter 

r e g i s t r a t i o n  number of the p e t i t i o n e r .  

P e t i t i o n s  must be appr ov ed by the county 

board of voter registration.

(3) No p o l i t i c a l  p a rt y designation 

shall appear on the ballot in c o n n e c t i o n  

with the names of candidates.



7a

(4) The six candidates receiving the 

highest vote in the e l e c t i o n  shall be 

decl ar ed elected. In the event of a tie 

vote, p r o c e d u r e s  p r ov id ed in the state 

election laws shall apply.

B. Terms of m e m b er s shall be for 

four years and until their successors are 

elected and qual if y except that in the 

initial election of 1982 the three members 

elected who receive the sm a l l e s t  vote 

shall serve initial terms of two years 

only.

C. Vacancies shall be filled in the 

next general election for a full term or 

un ex p i r e d  term as the case may be except 

that if a v a c a n c y  oc cu rs more than one 

year prior to a general election it shall 

be filled by appoin tm en t by the Gove rn or 

upon r e c o m m e n d a t i o n  of a majority of the 

county legislative delegation for a period 

until the v a c a n c y  can be filled by

election.



8a

D. In ad d i t i o n  to the elected 

memb er s, the co u n t y  s u p e r i n t e n d e n t  of 

e d u c a t i o n  shall serve ex o f f i c i o  as a 

me m b e r  of the board and in such capacity 

shall have all rights and p r i v i l e g e s  of 

other bo ard me m b e r s ,  including the right 

to vote.

E. As of D e ce mb er 31, 1982, the

terms of all bo ard m e m b e r s  then s e r v in g 

shall expire.

F. Except as p r o v i d e d  in this act 

the powers, duties and p r o c e d u r e s  of the 

board as prescribed by law shall continue 

in full force and effect.

Time effec t i v e

S E C T I O N  2. This act shall take 

effect upon approval by the Governor.

ACT NO. 549, SOUTH CAROLINA LAWS (1982) 

Act No. 549, South C a r o l i n a  Laws, p r o ­

vides:



9a

Board of e d u c a t i o n  ab ol ished, 

trustees elected

SECT IO N 1. Contingent upon approval 

of the total proposal by a majority of the 

q u a l i f i e d  electors voting in a referendum 

to be held in May, 1982, as h e r e a f t e r  

provided for, the following shall occur:

(a) The Hampton County Board of 

E d u c a t i o n  shall be abolished at midnight 

on June 30, 1 982 ; the of f i c e  of the 

Hampton County Superintendent of Education 

shall be abolished at midnight on June 30, 

1985; upon a b o l i t i o n  their r e s p e c t i v e  

duties shall devolve upon the trustees for 

Hampton County School Districts Nos. 1 and 

2; and after June 30, 1982, the Hampton 

County T r e a s u r e r  shall pay any proper 

claim a p p r o v e d  by a m a j o r i t y  of the 

tr u s t e e s  of either School District No. 1 

or School D i s t r i c t  No. 2, on b e h a l f  of



10a

their r e s p e c t i v e  d i s t r i c t ,  p r ov id ed 

s u f f i c i e n t  funds are on d e p o s i t  in the 

proper district account.

(b) B e g i n n i n g  with the general 

e l e c t i o n  in November, 1982, trustees for 

Hampton County School Districts Nos. 1 and 

2 shall be elected by a plurality vote of 

the e l e c t o r s  within their r e s p e c t i v e  

d i s t r i c t  q u a l i f i e d  and vo t i n g  at the 

general election for representatives. The 

n u mb er of trustees shall be five for each 

school district and their terms of of fice 

shall be gin Janu ar y 1, 1983. The three 

candidates in each district r e c e i v i n g  the 

high es t n u m b e r  of votes shall serve for 

terms of four years and the r e m a i n i n g  two 

tr u s t e e s  shall have initial terms of two 

years, after which all terms shall be for 

four years. In each case trustees shall 

serve until their s u c c e s s o r s  are e l e c te d 

and q u a l i f y  and each school board shall 

elect its c h a i r m a n  a n n u al ly . Trus te es



11a

shall rece iv e no salary but shall be 

reimbursed for actual e x p e n s e s  in cu rred. 

A c a n d i d a t e  for m e m b e r s h i p  on a school 

board must reside in the school di s t r i c t  

he seeks to represent and all candidates 

offering for el ection in No ve mb er , 1982, 

must file during the period August 16-31, 

1982.

Referendum conducted

S E C T IO N 2. The H a m p to n County 

Commissioners of Election shall conduct a 

r e f e r e n d u m  w i th in the r e s p e c t i v e  county 

school d i s t r i c t s  during May, 1982, to 

d e t e r m i n e  whet he r the p r o v i s i o n s  of 

Sect ion 1 of this act shall be i m p l e ­

mented. The s p ec if ic date for the 

r e f e r e n d u m  shall be d e t e r m i n e d  by the 

c o u n t y  e l e c t i o n  c o m m i s s i o n .  The county 

election commission shall th ri ce p u b l is h 

notice of the referendum in a newspaper of



12a

a c o u n t y w i d e  c i r c u l a t i o n ,  the last 

pu bl ic a t i o n  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 a p p l i c a b l e  to county 

referendums shall apply. Ballots shall be 

pr e p a r e d  and d i s t r i b u t e d  to the various 

voting p r e c i n c t s  of the c o u n t y  with the 

following printed thereon:

"Shall the Hampton County Board of 

E d u c a t i o n  be abolished on June 30, 19872, 

and its du t i e s  placed upon the t r u s t e e s  

for Hampton County School Districts Nos. 1 

and 2; shall the of fice of the Hampton 

Co un ty S u p e r i n t e n d e n t  of E d u c a t i o n  be 

abolished on June 30, 1985, and its duties 

placed upon the tr u s t e e s  for Hampton 

County School Districts Nos. 1 and 2; and 

shall the t r u s t e e s  for H a m p t o n  County 

School D i s t r i c t s  Nos. 1 and 2 (five 

t r u s t e e s  per district), rather than being 

appointed, byu el ec te d by p l u r a l i t y  vote



during g e n e ra l e l e c t i o n s  for representa­

tive b e g i n n i n g  with the e l e c t i o n  in 

November, 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 d i st ri ct 

shall have initial terms of two years?

I agree to the above p r o p o s a l s  ______

Yes No

Place a ch eck or cr oss ma rk in the 

block which expresses your answer."

S E C T I O N  3. The H a m p t o n  County

C o m m i s s i o n e r s  of Elec ti on shall c e r t i f y  

the resu lt s of the referendum directed in 

Sect io n 2 of this act to the Hampton 

Co un ty L e g i s l a t i v e  Delegation and to the 

South Carolina Code Commissioner.



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