John Roy Harper, II v. Edward H. Levi, Attorney General of the United States, (Two Cases)

MacKINNON, Circuit Judge

(dissenting):

I am in agreement with the conclusion that a three-judge court would not be required by section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1970), in an action for review under the Administrative Procedure Act of the procedures followed by the Attorney General in withholding objection to statutes submitted under section 5. I also agree that the Attorney General was not obliged to defer to the prior decision by the three-judge district court in South Carolina but could instead make an independent assessment of the discriminatory effect of Act 1205. However, these issues are irrelevant unless it is first determined that the Attorney General’s decision to withhold objection to legislation submitted under section 5 is subject to judicial review.

Section 5 provides that a statute affecting voting rights may be enforced if it has been submitted to the Attorney General and the Attorney General “has not interposed an objection within sixty days after such submission . . . .” To my mind, this language authorizes approval by inaction. Surely no one would contend that if the Attorney General took no action whatsoever, as is clearly authorized by the statute, that inaction could be subject to judicial review under the APA. It is hard to imagine a clearer instance of a matter “committed to agency discretion by law.” 5 U.S.C. § 701 (a)(2) (1970). I doubt that any greater power of judicial review exists simply because the Attorney General has chosen to give a reason, albeit an erroneous one, for his refusal to interpose an objection. The fact that he has adopted regulations requiring him to act affirmatively or negatively on each submission using set standards should not operate to confer additional powers of judicial review beyond what is indicated in the language of section 5.

Section 5 itself designates the proper method of obtaining judicial review in this case by providing that “the Attorney General’s failure to object . shall [not] bar a subsequent action to enjoin enforcement of any such qualification, prerequisite, standard, practice, or procedure.” I recognize the majority’s concern that the so-called “traditional” Fifteenth Amendment actions may not be the most effective means of safeguarding voting rights. However, since section 5 simply created a new method for preventing discriminatory voting restrictions without disturbing the “traditional” procedures, it is not unreasonable to believe that Congress would remit parties challenging voting laws to the preexisting remedies in appropriate circumstances. Congress chose to repose a large measure of trust in the Attorney General’s performance of his duties under section 5. It is for Congress, and not the courts, to determine if that trust was misplaced and judicial scrutiny of the Attorney General’s actions under section 5 is now necessary.

In my view, the majority is exposing the courts to a potentially large influx of cases seeking review of refusals by the Attorney General to interpose objections under section 5. If the issue of compliance with a procedural regulation is sub *74 ject to review under the APA despite section 5, there would seem to be little basis for distinguishing a complaint seeking APA review of the Attorney General’s compliance with his substantive regulations guiding his decision on whether to interpose an objection. The majority has taken the first step to developing a means of judicial review which could ultimately supplant the “subsequent action to enjoin enforcement” which Congress so carefully preserved in section 5. To this extent, I thus dissent.