Amicus Brief — Morris v. Gressette

FOR ARGUMENT

No. 75-1583

Gu the Supreme Court of the Gi

OcToBER TERM, 1976

=,

WR

—

aR

FRANCES Morris, ET AL., APPELLANTS

v.

L. MARION GRESSETTE, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF SOUTH CAROLINA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WADE H. McCRFE, JR.,

Solicitor General,

DREW 5S. DAYS, III,

Assistant Attorney General,

LAWRENCE G. WALLACE,

Deputy Solicitor General,

HOWARD E. SHAPIRO,

Assistant to the Solicitor General,

BRIAN EK. LANDSBERG,

JOHN C. HOYLE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Question presented................--...--------------- 1

Statutes tnvelvedl...icccoccccncncsccocececasnccncoseves 2

Interest of the United States_.............------.------ 2

eR en 3

A. The reapportionment litigation.........--...---- 3

B. The suit to compel the Attorney General to exercise

ele GR ct nntinciinnenpttcietinme~naninie 6

C. The three judge court decision in this case......--- 8

Summary of Argument.....................-...------- 9

Argument:

The Attorney General’s objection interposed under

Section 5 of the Voting Rights Act prevents the

South Carolina Senate Reapportionment Act from

becoming effective as law........-..------..-.--.- 13

Cont, cctrnccinatveneccesenecesenessenscesesvennn 37

Appendhs Bcccocenedopenccccenqececccconeecenccoseses la

Appendix B....-- Srcinatnediiannicsincatijiiontineivitinpernininieapaivaibaineuns 9a

CITATIONS

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 186_....-.- 12, 27

Allen v. State Board of Elections, 393 U.S. 544...-..- 18,

19, 20, 23, 27, 29, 30-31

Beer v. United States, 425 U.S. 180_....-...-.-..--. 15, 18

Briscoe v. Levi, 535 F. 2d 1259, certiorari granted,

December 6, 1976, No. 76-60_...............--.... 32

City of Petersburg v. United States, 410 U.S. 962, af-

firming, 864 F. Supp. 1021...................... 15

Connell Co. v. Plumbers & Steamfitters, 421 U.S. 616. 25

Conner v. Waller, 421 U.S. 656_......- wtlenshiaiaal 10, 14, 16, 36

Dunlop v. Bachowski, 421 U.S. 560_......- 12, 13, 27, 38, 36

East Carroll Parish School Board v. Marshall, 424 U.S.

CD ctiennnndbtnwetinatitinebuaishisaplalionnaintipae 13, 14, 37

Ewing v. Mytinger & Casselberry, 339 U.S. 594... 23

(1)

231-783—71T——1

II

ciraTions—continued

Cases—Continued Page

Georgia v. United States, 411 U.S. 526_....-- hinting 11,

12, 13, 16, 18, 19, 21, 22, 25, 27, 29, 40

Hadnott v. Amos, 304 U.S. 358_........-..-...----.- 36

Harper v. Kleindienst, 362 F. Supp. 742, affirmed, sub

nom. Harper v. Levi, 520 F. 2d 53_.-....-...---- Passim

Interstate Commerce Commission v. Atlantic Coast

pe ES LS Eee a 35

Massachusetts Mutual Life Insurance Uo. v. United

Be Ce ithe tdidinnctitineniiatiiabitabubicinniune 22

Panama Canal Co. v. Grace Lines, Inc., 356 U.S. 309.. = 31

Perkins v. Matthews, 400 U.S. 379.......-....------ 25

South Carolina v. Kateenbach, 383 U.S. 301_. 3, 18, 19, 20, 35

State Board of Election Commissioners, et al. v. Evers,

CD BA Bt iicnticecenitidiptascinneinneiinmadninnats 24

' Swann v. Adama, 383 U.S, 210............-.-.....-- 36

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

DR TERN etee eR RR eS ANY 13, 314 32

Town of Sorrento v. Reine, No. 75-93, decided April 21,

OP ci bicctnciniikiil eels ia distaerelintiatinca intelli ges A 36

Twiggs v. West, D.S.C. ‘Civ. No. 71-1106, decided

decsded April 7, 1978... ..cccccccccucue 4, 7, 8,9, 15, 16, 32

United Jewish Organizations v. Carey, No. 75-104, de-

GED Re Be Bieter, intesicih 10, 18, 20

United Jewish Org. of Williamsburg v. Wilson, 510 F.

2d 512, affirmed sub nom, United Jewish Organiza-

tions v. Carey, No. 75-104, decided March 1, 1977__- 31

United States v. Board of Supervisors, No. 76-489, de-

Ce 8 7 Ce 14, 16

United States v. United Mine Workers, 380 U.S.258.. 34

Virginian Railway Co. v. System Federation, No. 40,

gE CEL TT 7 A SO CE ee 12, 31

Constitution, statutes and regulations:

South Carolina Act 932, 1971 Sess.........-.._-___ 4,5

South Carolina Act 1204, 1972 Sess..........--. 5,6

South Carolina Act 1205, 1972 Sess.........._.. 1,

; 3, 4, 5, 6, 8, 9, 10, 18, 14, 15, 16, 26, 1A

GORORII Seti cial isck sch iacatinhiciins neabteniaalita di ialehie 4,6,4A

EE SCN ae Oe Oe BaD 3, 7A

United States Constitution:

Fourteenth Amendment.......................- 4, 16

It

cITATIONS—continued

Constitution, statutes and regulations—Continued Page

United States Constitution—Continued

Fifteenth Amendment_....--- 4, 10, 16, 18, 19, 20,22, 34

Administrative Procedure Act, 5 U.S.C. 701 et seq.

iy [oh Se 13

3) 0) | 2 34

$0) 27

5 U.B.O. 906(1) ..ncceccadecconcocne- _.-- 12, 27, 28, 30

Labor-Management Reporting and Disclosure Act of

1959, 73 Stat. 520, 29 U.S.C. 402(b) --------------- 33

Voting Rights Act of 1965, Section 5, 79 Stat. 439, as

amended, 42 U.S.C. 1973c passim, and amended in

1970, 84 Stat. 315, and further extended and amended

in 1975, Sections 204, 206 and 405, 89 Stat. 402, 404,

and 405, 42 U.S.C. (Supp. V) ne Lai sdiasenhiduida 2, 21, 24, 26

Re Ae 28

, FF ee 12, 30

bi oe 12, 28, 30

ey rire ncneshcnndinarenismlnntemeintemejapieh 31

ge | a eee 31

98 C.F.R. Part........ ai ainda cn ciaiatadaneiiilig Unenagiel 28

Pt) 2 ) i 28

Oe a cccmenciinsndieitiitetiainnnainntapmtititieii 28

4 % - er aoe 28

Be CN aie cnrinitocreteenmisits eiakenintiasacinineinciepuninhintinaine 21,28

Oe Ns Te inne ines tihinaisietscnlebiphictiniaslnhibiccs gesbiipiaimails 28

De ci rtitenntesespmdieniidiemenimtisndnnton ‘ 28

Oe SU i sain hs cicenemenemitioniianeenensaneipaiins 26, 28

Be Cs eb tis. os iinniencethtenesinneoutinntnamas 28

Oe ee so iis cscscalbitsbicnd wnlesbutbpisiiniiaiamminneiisilas 28

dari hctescistickitesh ts seetenertiieenentaitdeetdinanlataninlite 28

BD Ss Ce itcecttoncminnicocttiihaseiniintientaigtianminetiaaes 28

Miscellaneous :

Sek Tis NR tia Bi Se 21

Hearings on S. 1564 before the Senate Committee on

the Judiciary, 89th Cong., Ist Sess. (1965) _....... 25, 26

H.R. Conf. Rep. No. 711, 89th Cong., Ist Sess. (1965).. 26

H.R. Rep. No. 94-196, 94th Cong., Ist Sess. (1975)... 21, 26

S. Rep. No. 162, 89th Cong., Ist Sess. (1965) _........- 26

In the Supreme Court of the Wnited States

OcToBER TERM, 1976

No. 75-1583

FRANCES Morris, ET AL., APPELLANTS

Vv. .

L. Marion GRESSETTE, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF SOUTH CAROLINA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

The United States will discuss the following

question : F

Whether the Attorney General’s objection to South

Carolina’s reapportionment of its Senate in Act 1205,

interposed after invalidation on judicial review of the

Attorney General’s earlier determination not to ex-

ercise his independent judgment in deference to a

prior court decision, prevents Act 1205 from becom-

ing effective under Section 5 of the Voting Rights

Act of 1965, as amended, 42 U.S.C. 1973c. |

STATUTES INVOLVED

1. Section 5 of the Voting Rights Act of 1965, 79

Stat. 439, as amended, 42 U.S.C. 1973c, and amended

(1)

2

by Sections 204, 206 and 405, Pub. L. 94-73, 89 Stat.

402, 404-405, 42 U.S.C. 1973e (Supp. V), is set forth

at J.S. App. 57a-58a.

2. South Carolina Act 1205 is set forth in the ap-

. pendix to this brief (App. A, infra, pp. 1A-8A).

INTEREST OF THE UNITED STATES .

Section 5 of the Voting Rights Act of 1965, 79

Stat. 439, as extended and amended in 1970, 84 Stat.

315, and further extended and amended in 1975, 89

Stat. 402, 404, 42 U.S.C. (Supp. V) 1973c, requires

that all changes in the ‘voting laws or practices of

covered jurisdictions be reviewed either in a declara-

tory judgment action in the United States District

Court for the District of Columbia, or by the Attor-

ney General. The change may not be implemented

unless the court or the Attorney General determines

that the change does not have the purpose or effect

of discriminating on the ground of race.

The instant ease directly involves the Attorney

General’s responsibilities unde» ‘ection 5. It presents

a direct conflict between the ceurt below and the

Court of Appeals for the District of Columbia Cir-

cuit’ as to the availability of relief to compel the

Attorney General to exercise independent review of

changes in voting laws and practices subject to Seec-

tion 5 of the Voting Rights Act.’

* Harper v. Levi, 520 F, 2d 53 (C.A.D.C.).

* The government has previously participated in various stages

of this litigation, The Attorney General was the defendant in

3

STATEMENT

Under Section 5 of the Voting Rights Act of 1965,

79 Stat. 439, as amended, 42 U.S.C. 1973c, no change ~

in the voting laws or practices of covered jurisdic-

tions that alters such laws or practices in effect on

November 1, 1964, may be enforced unless and until

the change is declared, in a suit brought by the

covered jurisdiction against the United States before

a three-judge district court in the District of Colum-

bia, to be without discriminatory purpose or effect.

Such a proceeding becomes unnecessary, however, if

the change has been submitted to the Attorney Gen-

eral and “[{hJe has not interposed an objection within

| sixty days after such submission * * *” or has sooner

indicated that he does not object. Ibid.

The State of South Carolina is a covered jurisdic-

tion. South Carolina vy. Katzenbach, 383 U.S. 301, 318.

A. THE REAPPORTION MENT LITIGATION

The events leading to the Attorney General’s objec-

tion to Act 1205 began more than five years ago. On

November 11, 1971, South Carolina enacted alterna-

tive reapportionment plans for the State Senate (Act

932). See Harper v. Levi, 520 F. 2d 53, 57 (C.A.D.C.).

Both plans provided for multi-member districts, re-

quired candidates to run for numbered posts, and re-

quired primary elections to be decided by a majority

Harper, supra, and the United States submitted amicus curiae

briefs supporting the plaintiffs in the court below, and urging this

Court to note probab'e jurisdiction.

4

vote. Id. at 57-58. Private suits contending that

Act 932 violated the Voting Rights Act and the Four-

teenth and Fifteenth Amendments were filed and

a three-judge court was convened to hear them

(Twiggs v. West, D. 8.C., Civ. No. 71-1106, decided

April 7, 1972). Id. at 58. While these actions were

pending, South Carolina submitted Act 932 to the

Attorney General for Section 5 clearance. Ibid. On

March 6, 1972, the Attorney General objected to Act

932 because he was “unable to conclude * * * that

the combination of multi-member districts, numbered

posts, and a majority (run-off) requirement would

not occasion an abridgement of minority voting rights

in South Carolina.’’ Ibid.

Approximately one month later, the three-judge

court rejected the Fifteenth Amendment claim for

lack of evidence that the reapportionment was ra-

cially motivated (J.S. App. 47a), declined to con-

sider the Voting Rights Act challenge to Act 932

(J.S. App. 30a), but held that the Act violated the

Fourteenth Amendment due to malapportionment.

Twiggs v. West, supra (J.S. App. 26a-49a). The

court then allowed South Carolina 30 dars within

which to enact an acceptable substitute reapportion-

ment plan (J.S. App. 48a).

On May 6, 1972, the South Carolina General As-

sembly passed the legislation involved in this case—

Act 1205 (App. A, infra, pp. 1A-8A). Section 2 reap-

portioned the State’s senatorial districts. It set forth

two alternative apportionments, Plan A and Plan B,

and provided that if Plan A did not “meet the consti-

5

tutional guidelines as set forth by the Three Judge

Federal Court in its order of April 7, 1972, then the

Senate * * * shall be apportioned” under Plan B

(App. A, infra, p. 5A). This Act retained the provi-

sions of Act 932 calling for multi-member districts,

numbered posts, and a majority vote in primaries.

Harper v. Levi, supra, 520 F. 2d at 57-58. Section 3

of the Act also included a provision extending the

numbered post requirement to existing multi-member

districts in the State’s House of Representatives Id.

at 58. )

South Carolina’s chief legal officer submitted Act

1205 to the Attorney General on May 12, 1972 (A. 33).

Eleven days later, on May 23, 1972, the three-judge

court held the Senate reapportionment constitutional

(App. B, infra, p. 11A), and ordered Plan A into

effect (ibid.). The court stated that it had considered

a number of other plans and found no other plan to

be a substantial improvement over Plan A.’

While the Attorney General was considering Act

1205, South Carolina, on May 30, 1972, submitted to

the Attorney General additional legislation (Act

1204) which extended the numbered post require-

ment to ‘‘all multi-member elective districts” in South

Carolina. Harper v. Levi, supra, 520 F. 2d at 58.

On June 19, 1972, the Attorney General notified South

Carolina that he had received the previously requested

information concerning Act 1204, that the submission

*In an order dated June 9, 1972, denying plaintiff's motion to

vacate or amend its May 23 order, the court stated that it had acted

to grant relief because the General Assembly had failed to adopt

a plan.

231-783—77—_2

6

on Act 1204 was complete, and that the 60-day period

for Section 5 review of that statute would begin on

that date. 520 F. 2d at 59.

On June 30, 1972, the Attorney General inter-

posed an objection to Act 1204 and to the part of

Act 1205 that required numbered posts for the State’s

House (A. 47-50). He declined, however, to object to

Section 2 of Act 1205, reapportioning the State

Senate, because he felt “constrained to defer to the

* * * determination of the three-judge District

Court”? in Twiggs (A. 48). The Attorney General

wrote: “It would in ovr view not be appropriate to

read the Voting Rights Act as requiring or permit-

ting the Attorney General to review a determination

made by a United States District Court in the proper

exercise of its statutory jurisdiction” (ibid.).

B. THE SUIT TO COMPEL THE ATTORNEY GENERAL TO

EXERCISE HIS DISCRETION

On August 10, 1972, two black South Carolina eiti-

zen sued the Attorney General in the District Court

for the District of Columbia claiming that he had

failed to exercise his discretion in not objecting to the

Senate reapportionment in Act 1205, Harper y. Levi,

supra, 520 F. 2d at 59. The next day, the single-judge

district court entered an order stating that the time

within which the Attorney General could object to

Act 1205 had not expired and extending the time

within which he could interpose an objection until

er ee ec

7

further order of the court, or a further decision of

the Attorney General (Mot. to Aff. 19a-20a). On

May 16, 1973, the single-judge district court granted

summary judgment for plaintiffs and ordered the

Attorney General to make ‘‘a reasoned decision in ac-

cordance with h‘s statutory responsibility.” Harper v.

Kleindienst, 362 F. Supp. 742, 746 (D. D.C.), affirmed

sub nom. Harper v. Levi, 520 F. 2d 53 (C.A.D.C.). In

response to the order, the Attorney General filed a

memorandum stating that in his opinion the Senate

reapportionment had a “clear and substantial racial

effect in contravention of the Fifteenth Amendment

and its protections under Section 5 of the Voting

Rights Act,” but, nevertheless, he felt constrained to

defer to the Twiggs decision and he declined to enter

an objection. (Brief for Appellant, 4a-1la).

The district court, on July 19, 1973, issued a second

order directing the Attorney General to consider

Act 1205 without regard to the decision of the

[Twiggs] Three Judge District Court.” Harper v.

Levi, supra, 520 F. 2d at 59. Thereafter, on July 20,

1973, the Attorney General interposed an objection

nune pro tunc to the Senate reapportionment because

he was “unable to conclude that Act No. 1205 does not

have the effect of abridging voting rights on account

of race” (A, 51-52).

On appeal from the single-judge court’s orders in

Harper, a divided panel of the District of Columbia

8

Circuit affirmed,‘ holding (520 F. 2d at 59-60); foot-

notes omitted )—

that the court had jurisdiction funder 5 U.S.C.

702] of appellees’ action, that the Attorney

General’s decision not to object was reviewable

under the circumstances of this case, and that

Section 5 requires him to make an independent

determination on the merits of the Section 5

issues.

C. THE THREE-JUDGE COURT DECISION IN THIS CASE

After that decision became final, two other South

Carolina voters filed the present suit, as a class ac-

tion under Section 5, in the district court in South

Carolina (A. 2-7).° Plaintiffs sought to enjoin im-

plementation of the Senate reapportionment plan

contained in Act 1205 on the ground that it had not

been cleared under Section 5 by the Attorney General,

or by a declaratory judgment action in the District

Court for the District of Columbia (ibid.). A three-

judge court convened under Section 5° unanimously

* Judge MacK-.nnon, dissenting, reasoned that Section 5’s pro-

vision permitting a submitted change to be enforced within sixty

days if the Attorney General failed to object committed the mat-

ter of objection solely to agency discretion. It was therefore un-

reviewable. 520 F. 2d at 73-74.

° The defendants, appellees in this Court, were the President

Pro Tem, and the Clerk of the South Carolina Senate; the Gov-

ernor and Lieutenant Governor; the members and Executive Di-

rector of the South Carolina State Election Commission; the

Attorney General; and the Secretary of State of South Carolina.

* Two of the judges (Haynsworth, C. J., and Russell, J.) had

participated in 7 wiggs v. West, supra.

9

dismissed the complaint (J.S. App. la~25a). It held

that the doctrine of collateral estoppel did not pre-

elude the court from considering South Carolina’s

contention that, notwithstanding Harper v. Levit,

supra, the requirements of Section 5 were satisfied

when the Attorney General failed to interpose an

objection within sixty days after submission to him

of the Senate reapportionment plan contained in Act

1205 (J.S. App. 5a). Second, it ruled that the origi-

nal determination by the Attorney General under

Section 5 to defer to the district court in ['wiggs Vv.

West and to decline to render an independent judg-

ment was not judicially reviewable (J.S. App. 25a).

Finally, it held that the failure of the Attorney Gen-

eral to interpose an objection within sixty days of

the submission authorized the State of South Caro-

lina to implement the Senate reapportionment plan

contained in Act 1205 (J.S. App. 25a). Accordingly,

the court denied the injunction and dismissed the

complaint.

SUMMARY OF ARGUMENT

Since South Carolina Act 1205 has not been de-

clared by the District Court for the District of

Columbia to be without racially discriminatory pur-

pose or effect, it cannot be implemented under Section

5 of the Voting Rights Act if the objection interposed

by the Attorney General on July 20, 1973, nune pro

tunc, is valid. That in turn depends upon the power

of the reviewing court in Harper v. Kleindienst,

supra, to compel the Attorney General to exercise

10

his independent judgment, and to set aside his prior

non-objection to Act 1205 on the ground that he had

failed to perform his duty under Section 5 by de-

ferring to a district court’s approval of Act 1205

under the Fifteenth Amendment. It is now clear that

district courts evaluating legislation subject to Sec-

tion 5 may not pass upon Fifteenth Amendment

issues until the procedures of Section 5 have been

satisfied. Connor v. Waller, 421 U.S. 656. Accordingly,

the Attorney General has abandoned his prior policy

of deferring to such decisions.

His erroneous deferral in this case resulted, as the

Harper court correctly held, in substantial injury to

the statutory rights under Section 5 of voters in

South Carolina. Those rights include being freed

from compliance with changed election laws or pro-

cedures until they are cleared under Section 5; inter-

position of the District of Columbia court or the

Attorney General between the voter and the covered

jurisdiction; transfer from the citizen to the covered

jurisdiction of the burden of initiating proceedings;

assignment of venue to the District of Columbia; and

shift of the burden of proof on the issue of discrimi-

natory purpose or effect from the injured voter to the

covered jurisdiction.

As noted in United Jewish Organizations v. Carey,

No. 75-104, decided March 1, 1977 (slip op. 8) (Bren-

nan, J., concurring): “Under §5 of the Act, the

Attorney General in effect is constituted champion

of the interests of minority voters * * *,.”

11

But Congress’ purpose is assigning this role to the

Attorney General would be defeated if, pursuant to

an erroneous deferral policy, he did not make an

independent determination under Section 5, for the

whole scheme of the Act rests upon the assumption

that he will do so. This is confirmed by the Attor-

ney General’s regulations adopted in 1971, requiring

him to make the same kind of independent deter-

mination that must be made by the District Court

for the District of Columbia, and by Congress’ re-

enactment of the statute in 1975 with full knowl-

edge of those regulations. Georgia v. United States,

411 U.S. 526, 533.

The immediate effect of the Attorney General’s

failure to decide is the lifting of Section 5’s automatie

suspension, thus subjecting all citizens of a covered

jurisdiction to the new voting requirements regardless

of their discriminatory purpose or effect. Thereafter,

their only remedy is a suit under the Fifteenth

Amendment, the very remedy Congress found to be

so inadequate that it enacted the special statutory

protections of Section 5 to secure voting rights in

covered jurisdictions. Thus the consequences of the

Attorney General’s failure to decide would fall not

on him, but on the minority voters the Act is intended

to protect.

The provision of Section 5 permitting voting

changes submitted to the Attorney General to be im-

plemented if “‘the Attorney General has not inter-

posed an objeetion within sixty days of the submis-

sion” does not bar a suit by injured voters filed more

12

than sixty days after submission to compel him to

make a determination. The legislative history shows

that Congress intended preclearance by the Attorney

General to be a convenience for covered jurisdictions.

Georgia v. United States, 411 U.S. 526, 538. The

Attorney General, however, was not simply to be

given an opportunity to act; he was required to exer-

cise his independent discretion in order to effectuate

the Act’s purposes. Congress could assume that this

duty would be enforceable under the presumption of

reviewability available to compel the performance of

a duty to the plaintiff (28 U.S.C. 1361), including

agency action unlawfully withheld (5 U.S.C. 706(1)).

Dunlop v. Bachowski, 421 U.S. 560, 567; Abbott

Laboratories v. Gardner, 387 U.S. 136, 140. “Any less

stringent standard might well have rendered the

~formal declaratory judgment procedure a dead letter

by making available to covered States a far smoother

path to clearance.” Georgia v. United States, supra,

411 U.S. at 538.

The Act’s sixty-day provision, therefore, should be

construed, in light of the Act’s history, to assure rea-

sonable effectuation of Section 5’s purposes. Cf.

Georgia v. United States, supra. An action to compel

the Attorney General to exercise his independent dis-

cretion fits those purposes, for without such review

minority voters injured by his failure to decide would

have no remedy whatever under Section 5. On the

other hand, the remedy itself is a restricted, familiar

and traditional form of mandamus. Virginian Rail-

way Co. v. System Federation No, 40, 300U.S. 515, 551;

ees

13

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336. Indeed, the remedy in Harper is directly anal-

ogous to that in Dunlop v. Bachowski, supra, in-

volving limited, but somewhat broader judicial review

to protect the rights of a union electorate.

Accordingly, Act 1205 should not have been imple-

mented, and the district court should be directed

to grant appellants’ request for special elections,

under a lawfully adopted plan, to be held in Novem-

her 1978 to coincide with the general election to be

conducted at that time.

ARGUMENT

THE ATTORNEY GENERAL’S OBJECTION INTERPOSED UNDER

SECTION 5 OF THE VOTING RIGHTS ACT PREVENTS THE

SOUTH CAROLINA SENATE REAPPORTIONMENT ACT FROM

BECOMING EFFECTIVE AS LAW

It is conceded (Br. for Appellees, p. 9) that Section

5 of the Voting Rights Act of 1965, 79 Stat. 439, as

amended, 42 U.S.C. 1973c, applies to the South Car-

olina Senate Reapportionment Act (Act 1205),’ and

that Act 1205 has not been declared, in an action

brought by the State in the District Court for the

District of Columbia, to be without the purpose or

effect of denying the right to vote on account of race

or color.’ Accordingly, the objection to Act 1205 inter-

" See Georgia v. United States, 411 U.S. 526.

* Although the parties proceeded in the court below on the

theory that Section 5 applies to Act 1205, appellants, in a post-

judgment motion, filed after this Court’s decision in Yast Carroll

Parish School Board v. Marshall, 424 U.S. 636, argued that under

the rule of that case Act 1205 might be a court-ordered plan out-

231-783—77--_3

14

posed by the Attorney ‘General prevents that Act

from becoming effective as law unless that objection

side the scope of Section 5, Appellants no longer urge this point;

all parties agree that Act 1205 is a legislative plan subject to

Section 5’s preclearance requirements, We discuss this question

briefly, however, because there would have been no reason to reach

the question of the validity of the Attorney General’s objection

in this case if Section 5’s preclearance requirements were not ap-

plicable, and because the distinction bet ween a legislative plan and

a court-ordered plan is important in the administration of Sec-

tion 5.

We believe that the reapportionment plan embodied in Act

1205 is not a court-ordered plan within the meaning of Last

Carroll, Contrary to the situation in Hast Carroll, the South Caro-

lina legislature “reapportioned itself on its own authority.” Fast

Carroll, supra, 424 U.S. at 638-639 n. 6. The district court did not

direct the preparation of a plan to be submitted for proposed adop-

tion by it, but, rather, allowed the legislature 30 days to enact one.

We recognize, however, that the distinction between court-

ordered plans under Last Carroll and non-court ordered plans

subject to Section 5 is not always clear. Act 1205, for instance, has

some attributes of a court-ordered plan. While Plan A is stated in

enacting language (“the state of South Carolina is hereby divided

into the following Senatorial Districts” (App. A, infra, p. 4A)),

the Act includes as an alternative Plan B which is to take effect

“[iJ]n the event that Plan A does not meet the constitutional guide-

lines as set forth by the Three Judge Federal Court * * *” (App.

A, infra p. 5a). It also recites the consensus of the Legislature

that the two plans should be submitted to the district court in the

hope that the court would adopt one (App. A, infro, p. 3A). The

district court, indicating that it had found no other plan to be

a substantial improvement over plan A contained in Act 1205,

approved that plan (App. B, infra, 11A). In our view, how-

ever, the controlling fact is that the legislature acted on its own

authority. The subsequent approval of the legislature’s enactment

does not change its nature or origin. Accordingly, the plan

“[could] not be effective as [law] until and unless cleared pur-

suant to § 5.” Connor v. Waller, 421 U.S. 656. See also United

States v. Board of Supervisors. No. 76-489, decided February 22,

1977. Should this Court, however, determine that Act 1205 is a

15

is invalid.’ The validity of that objection turns on the

availability of judicial relief to compel the Attorney

General to exercise independent review of changes in

voting laws aud practices subject to Section 5.

The court below concluded that the district court

in the Harper litigation was without jurisdiction to

order such relief, and hence held the Attorney

General’s otherwise untimely objection to be a nullity.

We submit that the district court misapprehended the

language and purpose of Section 5, and disregarded

the fact that Harper involved only a traditional

remedy to compel the exercise of administrative

discretion.

The Attorney General’s letter of June 30, 1972 (A.

47) did not represent his independent determination

as to whether the Senate Plan in Act 1205 had the

purpose or effect of abridging the right to vote on ac-

count of race. Rather, as the letter expressly indicates

(A. 48), the Attorney General declined to make that

determination in deference to the decision of the

three-judge court in T'wiggs (App. B, infra, pp. 9A-

11A), which held that Act 1205 met the requirements of

the Fifteenth Amendment.

court-ordered plan, the presumption against the use of multi-

member districts would, of course, apply. Hast Carroll, supra

424 U.S. at 639.

* Tf the objection is valid, appellees may seek a declaratory judg-

ment from the district court for the District of Columbia that the

Act “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.

** *” 49 U.S.C. 1978c. See Beer v. United States, 425 U.S. 130;

City of Petersburg v. United States, 410 U.S. 692, affirming 354

F. Supp. 1021 (D. D.C.). They have not done so.

16

This policy of deference, however, was incorrect. It

was based upon the then prevalent belief that a local

district court seised of a reapportionment suit involv-

ing voting law changes adopted after November 1,

1964, “unquestionably had jurisdiction to consider the

issues presented to it under both the Fourteenth and

Fifteenth Amendments” (A. 48). See Georgia v.

United States, supra, 411 U.S. at 527. In 1975, how-

ever, this Court held in such a suit (Connor v. Waller,

421 U.S. 656) that new reapportionment legislation

adopted in the course of litigation is not effective in a

covered jurisdiction until clearance under Section 5

has been obtained from the District Court for the Dis-

trict of Columbia or the Attorney General. Therefore

a local district court erred in considering the constitu-

tionality of such legislation under the Fifteenth

Amendment. See also United States v. Board of Su-

pervisors, No. 76-489, decided February 22, 1977.

Thus under the rationale of Waller, the district court

in T'wiggs should not have considered the Fifteenth

Amendment issue at all, nor should the Attorney Gen-

eral have deferred to its decision.”

The question remains whether the Harper court

had jurisdiction, on judicial review, to nullify this

erroneous determination, so that the Attorney Gen-

eral could reconsider South Carolina’s submission of

Act 1205 nunc pro tunc. The court below denied such

© The government’s appeal from the district court’s decision in

Harper (Harper v. Levi, 520 F. 2d 518 (C.A.D.C.)) antedated

this Court’s decision in Connor v. Waller, supra.

17

jurisdiction on several grounds. First, it held the

Attorney General’s action of June 30, 1972 was not

“adjudicatory”, i.e., it had no binding effect on any-

one’s legal rights (J.S. App. 14a-l5a). Moreover,

it reasoned, any party dissatisfied with the Attorney

General’s failure to object had an adequate remedy

in court, because Section 5 expressly provides that

‘‘neither the Attorney General’s failure to object nor

a declaratory judgment entered under this section

shall bar a subsequent action to enjoin enforcement

[of the change in election procedures]” (J.S. App.

15a). Thus, in the court’s view, no private voter can

be “adversely affected’’ or suffer any injury in fact

entitling him to seek judicial review under the Ad-

ministrative Procedure Act, 5 U.S.C. 702. The court

further concluded that the express language of Sec-

tion 5, as well as its legislative history, demonstrated

that determinations by the Attorney General under

Section 5 are not reviewable. To allow such review,

it said, would, through delay, defeat the purpose of

that sixty day limit within which the Attorney Gen-

eral can object before a submitted change in voting

procedures may become effective and would require

the Attorney General to make explicit reviewable

findings, in the absence of a statutory requirement

that he do so (J.8. App. 20a-23a). The court also

stated that such review would be inappropriate be-

cause it would be available to private parties, in the

form of a suit before a single judge district court

under 5 U.S.C. 702, but would not be equally avail-

able to the states covered by Section 5, since the

18

states’ sole remedy is by a declaratory judgment ac-

tion in a three-judge district court in the District of

Columbia (J.S. App. 24a-25a).

The district court’s conclusion that no rights are

determined when the Attorney General defers to a

court ruling instead of exercising independent discre-

tion is incorrect. Section 5 created a new statutory

interest, supplementary to, but separate from the

rights enforceable in a Fifteenth Amendment suit. It

was Congress’ answer to “‘nearly a century of system-

atic resistance to the Fifteenth Amendment * * *.”

South Carolina v. Katzenbach, 383 U.S. 301, 328. The

statute was designed to counter a specific form of re-

sistance that had become familiar in the immediately

preceding years: rapid enactment of new laws to

undo or undercut the results of successful Fifteenth

Amendment litigation. Allen v. State Board of Elec-

tions, 393 U.S. 544, 548. See also United Jewish Or-

ganizations v. Carey, No. 75-104, decided March 1,

1977, slip op. 10-11 (opinion of Mr. Justice

White). Congress therein directed the automatic sus-

pension of all new election requirements in covered

jurisdictions, including reapportionment (Georgia v.

United States, supra; Allen v. State Board of Elec-

tions; supra; Beer v. United States, 425 U.S. 1302;

United Jewish Organizations v. Carey, supra), sub-

ject to alternative procedures for administrative or

judicial determination that “continued suspension of

the new rule is unnecessary to vindicate rights guar-

anteed by the Fifteenth Amendment.” South Caro-

lina v. Katzenbach, supra, 383 U.S. at 335. Section 5

shifted to

dengthe initial showing, either to the Attorney General

or to the District Court for the District of Columbia,

that new voting enactments did not have a discrim-

inatory purpose or effect. Georgia v. United States,

supra, 411 U.S. at 538. It was hoped that this proce-

dure would make constitutional litigation unnecessary

in the great majority of instances. South Carolina v.

Katzenbach, supra, 383 U.S. at 327-328.

The suspension and preclearance procedure of Sec-

tion 5 has five legally significant effects upon the

rights of voters in covered jurisdictions. First, it frees

them from the requirement of complying with changed

election laws or procedures until the changes are

shown to have no racially discriminatory purpose or

effect. Second, it interposes the federal government

between the voter protected by the Fifteenth Amend-

ment and the covered jurisdiction. Third, it imposes

on the jurisdiction, not the citizen, the burden of

initiating clearance proceedings. Fourth, it transfers

the venue of such proceedings to the District of

Columbia. Fifth, it places the burden of proving the

absence of discriminatory purpose or effect upon the

covered jurisdiction.

Congress adopted this “unusual and * * * severe

procedure” (Allen y. State Board of Elections, 393

U.S. 544, 556) because it found that “existing reme-

dies were inadequate” (ibid.) to assure vindication

of Fifteenth Amendment rights in the face of per-

sistent efforts in some States to defeat them. See

South Carolina vy. Katzenbach, supra, 383 U.S. at

20

309. By these new statutory procedures, Congress

intended “to make the guarantees of the Fifteenth

Amendment finally a reality for all citizens” (Allen,

supra, 393 U.S. at 556).

The Attorney General’s role in passing upon Sec-

tion 5 submissions is essential to the achievement of

this purpose. As recently observed in a case involving

a state’s response to the Attorney General’s action

under Section 5 (United Jewish Organizations v.

Carey, No. 75-104, decided March 1, 1977, slip op.

7-8) (Mr. Justice Brennan, concurring) :

The participation of the Attorney General, for

example, largely relieves the judiciary of the

need to grapple with the difficulties of distin-

guishing benign from malign discrimination.

Under $5 of the Act, the Attorney General in

effect is constituted champion of the interests

of minority voters, and accompanying imple-

menting regulations ensure the availability of

materials and submissions necessary to discern

the true effect of a proposed reapportionment

plan. See 28 C.F.R. § 51.19. This initial right

of review, coupled with the fact-finding compe-

tence of the Justice Department, substantially

reduces the likelihood that a complicated re-

apportionment plan that silently furthers

malign racial policies would escape detection by

appropriate officials.

The whole scheme of the Act thus rests upon the

premise that the Attorney General will make an inde-

pendent determination to assure protection of minor-

ity voting rights. “ Congress expected the Attor-

ney General to give his careful and good-faith

21

consideration to §5 submissions and, within 60 days

after receiving all information he deemed necessary,

to make up his mind as to whether the proposed

change did or did not have a discriminatory purpose

or effect, and if it did, to object thereto” (White, J.,

dissenting on other grounds in Georgia v. Umited

States, supra, 411 U.S. at 543). The Act has twice

been extended on this understanding. 84 Stat. 315;

89 Stat. 402, 404.”

The legislative understanding that the Attorney General

would in each case make an independent determination was sum-

marized in connection with the 1975 extension and amendment

of the Voting Rights Act, 89 Stat. 404, 42 U.S.C. (Supp. V) 1973c.

The House Judiciary Committee expressly noted that (H.R. Rep.

No. 94-196, 94th Cong., Ist Sess., pp. 8-9 (1975) (emphasis

added) ) :

“Section 5 of the Act requires review of all voting changes prior

to implementation by the covered jurisdictions. The review may be

conducted by either the U.S. District Court for the District of

* Columbia or by the Attorney General of the United States.

* * o a *

“Tt was not until after the 1970 Amendments that Section 5 ac-

tually came into extensive use. At the time of the adoption of those

amendments, Congress resisted attempts to repeal the preclearance

provisions, and in so doing gave a clear mandate to the Department

of Justice that it improve enforcement of Section 5 * * *. * * *

On September 10, 1971, the Department of Justice for the frst

time-adopted regulations for implementing Section 5’s preclear-

ance provisions” (36 Fed. Reg. 18186).

The regulations described in the House Report, supra, expressly

require the Attorney General to make an independent determina-

tion, just as would the District Court for the District of Columbia.

28 C.F.R. 51.19. See note 15, infra, pp. 27-28.

If in reconsidering the Act in 1975 Congress had disagreed with

the Attorney General’s interpretation of Section 5, “it had ample

231-783-774

22

A determination by the Attorney General to defer

to a district court without making an independent

determination with respect to legislation which has

not been declared by the District Court for the Dis-

trict of Columbia to meet Section 5’s substantive re-

quirements has a substantial, adverse effect on the

rights of voters protected by that Section. The im-

mediate consequence of the Attorney General’s failure

to decide is the lifting of the automatic suspension

and elimination of the need for clearance in a pro-

ceeding by the covered jurisdiction before the District

of Columbia court. Thereafter, all citizens of the eov-

ered jurisdiction must adhere to the new voting re-

quirements. If those requirements perpetuate racial

discrimination, the sole remedy for vindication of

Fifteenth Amendment rights is a private suit in

which the citizen must carry the burden of proving

racially discriminatory purpose or effect. This is,

however, the very remedy that Congress found to be

inadequate, and that it sought to supplement by the

opportunity to amend the statute.” Georgia v. United States,

supra, 411 U.S. at 533. “Its failure so to do requires the conclusion

that the regulation was not inconsistent with the intent of the

statute.” Massachusetts Mutual Life Ins. Co. v. United States, 288

US. 269, 273.

Aspects of the Attorney General’s regulations imposing the

burden of proof on covered jurisdictions and delaying the running

of the 60-day period under Section 5 until the Attorney General

had received sufficient information were sustained in Georgia v.

United States, supra, 411 U.S. at 581-540. The Court there

noted that “(t]he judgment that the Attorney General must make

is a difficult and complex one, and no one would argue that it

should be made without adequate information.” Jd, at 540 (em-

phasis added).

ee ee ee ee eT mE Te ee

suspension and preclearance provisions of Section 5

(see pp. 19-20, supra). That Section’s five effects (p.

19, supra) provide the requisite support for private

actions to enjoin the implementation of voting

changes by covered jurisdictions in the absence of

the required clearance under Section 5. Allen v. State

Board of Elections, supra, 393 U.S. at 556-557. Since

these privately enforceable statutory rights may be

lost forever when the Attorney General fails to ob-

ject, it is incorrect to reason, as did the district

court, that no legal rights are determined when the

Attorney General announces his determination to

defer, rather than to exercise his judgment on the

merits.”

On the contrary, such a deferral entails substantial

legal consequences, since it removes the barrier to en-

forcement of the state law imposed by Section 5. It

has the practical effect of eliminating the protections

of Section 5 and of authorizing a change in the state’s

voting laws.

These consequences, however, do not in themselves

establish that a judicial remedy is available to review

a policy of the Attorney General that results in fail-

ure to exercise his independent discretion under Sec-

12 For these reasons, the district court’s reliance on Ewing v.

Mytinger & Casselberry, 339 U.S. 594, is misplaced. The Court

there held unreviewable an agency’s determination of probable

cause to refer a drug company’s case to the Attorney General

for the institution of seizure proceedings because its only con-

sequence was to subject the company to possible suit. As we have

shown above, the determination here has immediate effects on the

voting rights of citizens.

24

tion 5. For it is not unreasonable to read the language

of the proviso to Section 5 that makes preclear-

ance by the Attorney General an alternative to a

declaratory judgment suit in the District of Colum-

bia, as permitting a voting change to become effective

if the Attorney General has failed to act within 60

days for any reason, or for no reason at all." See

Harper v. Levi, supra, 520 F. 2d at 73-74 (Mac-

Kinnon, J., dissenting); State Board of Election

Commissioners v. Evers, 405 U.S. 1001 (Blackmun,

J.; coneurring), But such a reading of the statute

would set at naught the protections Congress intended

for minority voters because of an administrative offi-

cial’s failure to exercise his independent responsibili-

** The proviso presently reads as follows (42 U.S.C. (Supp. V)

19738c) :

“Provided, That such qualification, prerequisite, standard. prac-

tice, 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 offi-

cial 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 affirmatively indicated that such objec-

tion will not be made. Neither an affirmative indication by the

Attorney General t!.at no objection will be made, nor the Attorney

General’s failure to object, nor a declaratory judgment entered

under this section shal] bar a subsequent action to enjoin enforce-

ment of such qualification, prerequisite, standard, practice, or

procedure, In the event the Attorney General affirmatively indi-

cates that no objection will be made within the sixty-day period

following receipt of a submission, the Attorney General may re-

serve the right to reexamine the submission, if additional informe

tion comes to his attention during the remainder of the sixty-day

period which would otherwise require objection in accordance with

this section.”

2

ties. The consequences of such a failure would fall

not on the official, but on the minority voters. In view

of the important rights involved, such a construction

would be at odds with the intent of Congress and

should be rejected. Cf. Connell Co. v. Plumbers &

Steamfitters, 421 U.S. 616, 628-633.

Although the language and history of Section 5

demonstrate that the Attorney General’s determina-

tion is to be made swiftly (Georgia v. United States,

supra, 411 U.S. at 539) and independently (Perkins

v. Matthews, 400 U.S. 379, 385), they do not support

the district court’s conclusion that Congress foreclosed

the kind of limited judicial relief exercised in H ar per.

The provision for clearance by the Attorney General

within a fixed period was suggested by then Attorney

General Katzenbach in response to concerns that

plainly lawful’ state legislation would be unduly de-

layed pending a declaratory judgment action in the

District Court for the District of Columbia. The At-

torney General suggested that the declaratory judg-

ment action could be limited “to those laws which the

Attorney General takes exception to within a given

period of time.” Hearings on S. 1564 before the

Senate Committee on the Judiciary, 89th Cong., 1st

Sess., Pt. 1, 237 (1965). He did not suggest that ju-

dicial review was to be totally foreclosed, nor did any-

one else.

The sixty-day limit contained in Section 5 is not

evidence that Congress intended to foreclose limited

The history is summarized in Harper v. Levi, supra, 20 F.9d

at 65, Section 8 of the original bill (S. 1564, 89th Cong., 1st Sess,

‘

judicial review. It serves to assure expeditious clear-

ance by the Attorney General of changes in state law

which comply with the substantive standards of Sec-

tion 5 as part of “[t]he alternative procedure of

stibmission to the Attorney General [that] ‘merely

gives the covered State a rapid method of rendering

a new State election law enforceable.’ Allen v. State

(1965) ) provided only for preclearance by the District Court for

the District of Columbia. Attorney General Katzenbach’s sugges-

tion was made at Hearings on S. 1564 before the Senate Committee

on the Judiciary, 89th Cong., 1st Sess, Pt. 1, 287 ( 1965). Although

Mr. Katzenbach’s suggestion was taken up and incorporated into

the bill, neither the Committee reports nor the debates discuss the

proposal. S. Rep. No. 162, 89th Cong., 1st Seas. (1965) ; H.R. Conf.

Rep. No. 711, 89th Cong, Ist Sess, (1965). Thus, as noted in

Harper (520 F. 2d at 65 n. 95), “{t]}he only explanation is the

testimony of Attorney General Katzenbach.”

In 1975, the statute was amended to provide that “[i]n the event

the Attorney General affinnatively indicates that no objection will

be made within the sixty-day period following receipt of a sub-

mission the Attorney General may reserve the right to reexamine

the submission if additional information comes to his attention

during the remainder of the sixty day period which would other-

wise require objection” (Pub. L, 94-73, Section 40%, 89 Stat. 404).

Contrary to appellees’ contention (Br. 38 n, 69), this amendment

did not reflect an understanding that failure of the Attorney Gen-

eral to make an independent determination, when expressed in an

affirmative indication that he will not object, validates changes

in a state’s voting laws. The purpose of these amendments was

to “codify the already existing expedited consideration procedures

which the Department of Justice has established in its Section 5

regulations.” 28 C.F.R. 51.22; H.R. Rep. No. 94-196, 94th Cong.,

Ist Sess., p. 35 (1975). The regulations, and the amendment, were

designed to provide for the situation in which the Attorney Gen-

eral had made an independent determination within the 60-day

period only to learn that he had done so on the basis of an inade-

quate submission, The amendment thus confirms that Congress

intended the Attorney General to make an informed, independent

ruling.

27

Board of Elections, 393 U.S,, at 549.” Georgia v.

United States, supra, 411 U.S, at 538. By establishing

this convenience for covered jurisdictions, Congress

did not intend merely to provide the Attorney General

with an opportunity to act; it required him to make

an independent substantive determination.

Congress could safely assume that the Attorney

General’s adoption of a policy contrary to this obliga-

tion to exereise independent judgment would be sub-

ject to the presumption of reviewability contained

in the Administrative Procedure Act (5 U.S.C, 701-

706) (see Dunlop v. Bachowski, 421 U.S. 560, 567;

Abbott Laboratories v. Gardner, 387 U.S. 136, 140)—

and, specifically, to that Aet’s provisions (now 5

U.S.C. 706(1)) for a limited judicial remedy to compel

the exercise of administrative discretion. “Any less

stringent standard might well have rendered the

formal declaratory judgment procedure a dead letter

by making available to covered States a far smoother

path to clearance.” Georgia v. United States, supra,

411 U.S. at 538. Thus the sixty-day limit is not con-

clusive of the rights of the citizens protected by

Section 5, where the Attorney General has failed to

exercise his independent discretion within that

period.”

Rather, in light of the statute’s history and pur-

pose, and in light of the policies underlying the gen-

In a deposition taken in this case, Mr. Gerald W. Jones,

Chief of the Voting Rights Section of the Civil Rights Division

of the Department of Justice, was asked whether a description of

Section 5 procedures which included the statement that “fi)}f the

60 days pass and the Attorney General has taken no action or has

eral grants of limited reviewing authority in the

courts,” we submit that the extent to which judicial

review of the Attorney General’s action or inaction

under Section 5 is proper depends on whether such

review is a reasonable effectuation of the purposes of

not objected, the change can be put into effect” (A. 39) was an ac-

curate statement of the policy and practice of the Voting Rights

Section (A. 40). Mr. Jones testified that the description was “a cor-

rect statement of the general practice of the voting section in ad-

ministering section 5 and is, as outlined in the Administrative

Procedures for the administration of section 5” (A. 41). Mr. Jones’

testimony merely confirms, inter alia, that if the Attorney General,

in exercising his function under the statute, does not interpose an

objection within the 60-day period the change may be put into

effect. It does not mean that the Attorney General can fail to con-

sider a proper submission under Section 5. The section would be

meaningless if it did not contemplate that the Attorney General

would consider the submission and decide whether or not to

interpose an objection.

Moreover, the regulations referred to, entitled “Procedures for

the Administration of Section 5 of the Voting Rights Act of 1965”

(28 C.F.R. Part 51), also contemplate that the Attorney General

will give full consideration to every submission and will exercise

his judgment whether or not to interpose an objection. These regu-

lations specify, inter alia, the standards to be applied by the Attor-

ney General in considering submissions from covered jurisdictions

(§ 51.19) ; the procedures for notifying jurisdictions of receipt of

a submission (§ 51.16), the return of inappropriate submissions

(§ 51.17), the obtaining of further information regarding a sub-

mission (§ 51.18), notifying the jurisdiction of the Attorney Gen-

eral’s decision to object (§ 51.21) or not to object (§ 51.20), giving

@ particular submission expedited consideration (§ 51.22), recon-

sideration of a submission (§§ 51.23, 51.24), and withdrawal of an

objection (§ 51.25) ; and the records concerning submissions to be

kept by the Attorney General (§ 51.26).

** See 28 U.S.C. 1361 (district courts have jurisdiction of suit

to compel performance of official duty) ; 5 U.S.C. 706(1) (review-

ing court may compel agency action unlawfully withheld). Venue

for such actions would appear to be confined to the District of

Columbia. 42 U.S.C. 19737(b).

a

29

the Act.” In considering that question, it should be

kept in mind that if a state finds the Attorney Gen-

erals” delays unreasonable, or if he objects to. the

submission, “the State may still enforce the legislation

upon securing a declaratory judgment in the Distriet

Court for the District of Columbia.” Allen vy. State

Board of Elections, supra, 393 U.S. at 549. But unless

there is limited judicial review to assure that. the

Attorney General does not pursue an erroneous policy

of refusing to exercise his .udependent discretion, the

minority voters whose interest the Attorney General

is to safeguard will have no remedy whatever under

Section 5.

We submit, therefore, that as a proper counter-

balance to the right of states to obtain a de novo de-

termination under Section 5 from the District Court

in the District of Columbia, notwithstanding the At-

torney General’s refusal to clear proposed voting

changes, protected minority voters have a right to

judicial review for the limited purpose of compelling

*" A similar approach was adopted by the Court in sustaining

the Attorney General’s Section 5 regulations that placed the

burden of proving compliance with the statute’s standards on

covered jurisdictions. Georgia v. United States, supra. See note 11,

pp. 21-22, supra. Similarly, the Attorney General’s regulation

delaying the running of the 60-day period until a complete sub-

mission is tendered, was sustained in Georgia y. United States-as

consistent with Section 5 because the only other “plausible response

to an inadequate or incomplete submission would be simply to

object to it.” 411 U.S. at 540. Such an objection would be in effect

a determination that the state had failed to carry its burden of

proving the absence of discriminatory purpose or effect, and thus

would represent a valid exercise of the Attorney General’s

independent discretion under Section 5. fuzz +01

30

the Attorney General to exercise his independent dis-

cretion when, pursuant to an erroneous policy, he has

failed to do so.

Such an action is a restricted, familiar and tradi-

tional judicial remedy. Indeed, as the Harper court

noted, the proceeding in that case was instituted and

prosecuted in the District Court for the District of

Columbia under its “original jurisdiction of any ac-

tion in the nature of mandamus to compel an officer

or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.’

28 U.S.C. 1361; Harper v. Levi, supra, 520 F. 2d

at 64 n. 87. Such jurisdiction is consistent with the

power of reviewing courts, under the Administrative

Procedure Act, to “compel agency action unlawfully

withheld or unreasonably delayed.” 5 U.S.C. 706(1).

The scope of that remedy, however, is extremely

narrow. The minority citizens seeking review in

Harper contended “simply, and the District Court

held only, that the Attorney General improperly relin-

quished his responsibility to independently evaluate

the submitted legislation in light of the standards

established by Section 5.” Harper v. Levi, supra, 520

F, 2d at 67. Thus the court in Harper expressed “no

opinion on reviewability of a determination not to

object allegedly involving an erroneous application

of §5’s purpose-effect standard.” Id. at 67 n. 115."

'* Indeed, it noted “that orthodox judicial review of a decision

to interpose an objection presents different questions. It may be

that Congress intended to confine review of such a decision to the

declaratory judgment action specified in § 5.” 520 F. 2d at 67 n.

115. This seems indicated by Allen v. State Board of Elections,

31

“Tt is a familiar rule that a court may exer-

cise its equity powers, or equivalent mandamus

powers, * * * to compel courts, boards, or officers to

act in a matter with respect to which they may have

jurisdiction or authority, although the court will not

assume to control or guide the exercise of their au-

thority.” Virginian Railway Co. v. System Federation

No. 40, 300 U.S. 515, 551 (dictum) (citation

omitted). See, also, Panama Canal Co. v. Grace Line,

Ine., 356 U.S. 309, 317-318. As the court of appeals

stated in Harper (520 F. 2d at 63):

The crucial consideration is that, though deci-

sion-making is dictated, the decision itself is

not—the Attorney General, though compelled

to decide, is left completely unfettered as to

how to decide.

The order entered by the Harper court resulted

from the Attorney General’s “deferral”—which was

not authorized by law. It is analogous to the relief

afforded in Thermtron Products, Inc. v. Hermans-

dorfer, 423 U.S. 336. In that case, a federal dis-

trict court to which a diversity action had been

removed remanded the case to state court in the

interest of expedition, on the ground that its docket

was overcrowded. Under 28 U.S.C. 1447(c), a dis-

trict court may remand the case if it was “‘re-

moved improvidently and without jurisdiction.”

Review of such a remand order is expressly pro-

supra, 393 U.S. at 562; and United Jewish Org. of Williamsburgh

v. Wilson, 510 F. 2d 512, 520 (C.A. 2), affirmed sub nom. United

Jewish Organizations v. Carey, No. 75-104, decided March 1,

1977.

:

,

32

hibited by 28 U.S.C. 1447(d). The defendants who

had sought the removal, however, applied for a

writ of mandamus to the Court of Appeals for

the Sixth Circuit. That court denied the writ, but

this Court reversed. Similarly to the case of Section

5 submissions, which the Attorney General may

“clear” by making an independent decision not to

object within 60 days, the district court in Therm-

tron could have remanded the case as “improvidently

removed” and no review would have been available.

423 U.S. at 343. But where the district court ex-

plicitly based its remand order on a ground not

authorized by law, this Court held, the court of ap-

peals had both the power and the duty to “review”

the order by writ of mandamus and compel the dis-

trict court to take jurisdiction of the case.

Here the Attorney General’s decision to defer to

the Twiggs court has been shown by subsequent deci-

sions of this Court to have been erroneous (see p.

16, supra). As we now understand the law in light of

Connor v. Waller, supra, the Attorney General should

have exercised his independent authority to review

Act 1205. Accordingly, the Harper court’s order did

no more than require the Attorney General to per-

form the responsibilities placed on him by the Voting

Rights Act.” It did not interfere with the exercise of

* See also Briscoe v. Levi, 535 F. 2d 1259 ( C.A.D.C.), certiorari

granted, December 6, 1976, No. 76-60, where the court of appeals

in considering the 1975 amendments to the Voting Rights Act

stated (535 F. 2d at 1265): “It is * * * apparent that even where

the intent of Congress was to preclude judicial review, a limited

jurisdiction exists in the court to review actions which on their

face are plainly in excess of statutory authority.”

his independent authority to decide whether the sub-

mitted act had the purpose or effect of denying or

abridging the right to vote on account of race.

In holding that such limited judicial relief is a nul-

lity to be disregarded, the decision below is inconsist-

ent with Dunlop v. Bachowski, 421 U.S. 560. This

Court there held that the Administrative Procedure

Act authorizes judicial review, for limited purposes,

of a decision of the Secretary of Labor not to bring

a civil action to set aside a union election under

Section 402(b) of the Labor-Management Report-

ing and Disclosure Act of 1959 (“LMRDA’’), 73

Stat. 534, 29 U.S.C. 482(b). The court below pur-

ported to distinguish Bachowski on the ground

that suit by the Secretary was the exclusive remedy

for irregularities in a union election, and plaintiffs

there thus had no adequate remedy at law. The

same is true, we submit, with respect to Section

5, since a determination by the Attorney General

to defer to the district court ruling and not to decide

independently whether to object under Section 5

leaves a state’s voters without the protections of that

statute. His non-objection based on such a determina-

tion affects the statutory rights of the state’s elector-

ate under the Voting Rights Act at least as much as

. the Secretary’s decision not to challenge a union elec-

tion affects the rights of the union electorate under

the LMRDA.”

*° Appellants, on the other hand, contend (Br. 14-20) that this

Court need not determine whether the decision in Harper is correct

because the single-judge district court in that case issued an inter-

locutory order declaring that the Attorney General’s time to object

34

Indeed, the holding below that a voter suit under

the Fifteenth Amendment is an adequate remedy at

law not only is contrary to the congressional finding

that such relief is inadequate, it also misconstrues

the language of 5 U.S.C. 704, which defines the kinds

of administrative actions subject to judicial review.

That section expressly provides for judicial review

of “final agency action for which there is no other

adequate remedy in a court * * *” (emphasis added).

A private suit challenging a state voting law under

the Fifteenth Amendment does not involve review of

“agency” (the Attorney General’s) action under Sec-

tion 5. Thus the right to an independent exercise of

discretion by the Attorney General before the pro-

had not expired, and would be extended until he acted or until

further order of the court. The Attorney General subsequently

interposed his objection. See Statement, supra, pp. 6-7. Under

United States v. United Mine Workers, 330 U.S. 258, the argument

continues, the court’s order was intended to preserve the status quo

pending the court’s determination of its jurisdiction, and there-

fore was within the inherent powers of the district court. Appel-

lants thus argue that because the Attorney General’s objection

was interposed pursuant to that order, it prohibits the effectuation

of Act 1205. This aspect of Mine Workers, however, involved the

power of the district court to impose contempt sanctions upon a

party for disobeying an order directed to it. In this case South

Carolina was not a party to the Harper litigation and was not

under a court order restraining enforcement of Act 1205. Mine

Workers therefore has no application here. The Attorney Gen-

eral’s objection was interposed only because the Harper court

ordered him to exercise his independent authority and not to defer

to the ruling of the 7wriggs court. The validity of that interlocu-

tory order depends upon the reviewability of the Attorney Gen-

eral’s deferral policy. If that policy was not reviewable, the

interlocutory order was invalid, and hence the objection interposed

pursuant to it would be invalid.

tections of Section 5 are lifted is enforceable by the

judiciary in proceedings for judicial review, for the

same re: -ons that the rights of a union electorate are

enforceable by a limited (although somewhat broader)

review of the Secretary of Labor’s decision not to

challenge a union election.

There is no unfairness in affording this limited ju-

dicial review to voters even though covered jurisdic-

tions cannot obtain review of the Attorney General’s

determination and are instead confined to the declara-

tory judgment proceeding in the District of Columbia.

Perfect symmetry in judicial review proceedings is

not required, so long as the substantial rights of all

parties may be asserted in a judicial forum. See, e.g.,

Interstate Commerce Commission vy. Atlantic Coast

Inne R. Co., 383 U.S. 576 (rail carrier may obtain re-

view of administrative reparations order only in de-

fense of enforcement action by shipper). The de novo

suit provided for in the District of Columbia is a full

and complete remedy for covered jurisdictions.” South

Carolina v. Katzenbach, supra, 383 U.S. at 332.

The court below also emphasized the congressional

purpose to allow the Attorney General freely to exer-

cise his discretion regarding compliance with the sub-

stantive requirements of Section 5 (J.S. App. 22a-

23a). We agree that the preservation of that discre-

tion is of great importance to the administration of

* Although not an indispensable party (Harper v. Kleindienst,

supra, 362 F. Supp. at 744), a covered jurisdiction, of course, may

intervene in any suit challenging the Attorney General’s failure

to object and defend its interest. Appellees did not do so here.

36

the Voting Rights Act. In our view, however, the

Harper ruling correctly supports that policy, by re-

quiring the Attorney General to exercise his discre-

tion. We believe that a proper reading of the limited

judicial review undertaken by the Harper court—re-

view in the nature of mandamus of the Attorney

General’s failure to exercise his discretion on the

basis of a stated policy * found by the Harper court

to be contrary to the procedural requirements of the

Voting Rights Act—will not interfere with the sub-

stantive determinations committed by Section 5 to

the discretion of the Attorney General.

The Senate apportionment in Act 1205 has been in

effect for legislative sessions since 1973 (A. 53). In

November 1976 state Senators were elected for four-

year terms under that plan (see Brief for Appellants,

pp. 31-32). As shown above, the use of this plan

violates the Voting Rights Act, and inflicts irreparable

injury on the voters of South Carolina. We support

appellants’ request for special elections to be held in

November 1978 to coincide with statewide legislative,

congressional and gubernatorial elections (tbid.) be-

cause plaintiffs have diligently pursued their rights,

and special elections will not cause undue disruption

of the State’s legislative process or prejudice the

rights of any voters. Of. Town of Sorrento v. Reine,

425 U.S. 946; Hadnott v. Amos, 394 U.S. 358; Swann

v. Adams, 383 U.S. 210.

In sum, we submit that, in light of Connor v.

Waller, supra, and Dunlop v. Bachowski, supra, the

22 See pp. 15-16, supra.

37

decision in Harper vy. Levi was correct, and that the

district court erred in refusing to enforce the Attor-

ney General’s objection interposed pursuant to

Section 5 and the Harper court’s order. In the alter-

native, if the Court considers Act 1205 to embody a

court-ordered plan within the meaning of East Carroll

Parish School Board yv. Marshall, 424 U.S. 636, then

the district court abused its discretion by authorizing

multimember districts. See note 8, p. 13, supra. In

either event special elections should be conducted in

November 1978 under a lawfully adopted plan.

CONCLUSION

The judgment of the district court should be re-

versed with directions to enter judgment for appel-

lants to require that special elections be held under

a proper plan no later than November 1978.

Respectfully submitted.

Wave H. McCrer, Jr.,

Solicitor General.

Drew S. Days, ITI,

Assistant Attorney General.

LawRENCE G, WALLACE,

Deputy Solicitor General,

Howarp E. Suariro,

Assistant to the Solicitor General.

Brian K. Lanpssera,

JoHN C. Hoy ez,

.. aa

ON

f

APPENDIX A

THE STATE OF SOUTH CAROLINA

At a General Assembly Begun to be Holden at Co-

lumbia, on the Second Tuesday in January, in the

Year of Our Lord One Tho. and Nine Hundred and

Seventy-Two, and Thence Continued by Divers Ad-

journments to the —— day of ——

In the Year of Our Lord One Thousand Nine Hun-

dred and Seventy-Two

Aw Act No. 1205

To REAPPORTION THE SENATE OF THE GENERAL

ASSEMBLY OF SouTH CAROLINA

Be it enacted by the General Assembly of the State

of South Carolina

Section 1. The General Assembly makes findings

of fact and statements of policy as follows:

1. It is the publie policy of this State that counties,

as constitutionally recognized political subdivisions of

this State, shall be treated as basic units to construct

election districts for the reapportionment of the Sen-

ate; and because of historical association, the charg-

ing of counties with various responsibilities incident

to the operation of State government, the organiza-

tion of county governments, special purpose districts,

school districts and other governmental units of com-

mon interest, and the enactment by this Assembly of

local legislation for such counties, it is the public

(1a)

2A

policy of the State that in reapportioning the Senate,

and in order to deter the possibilities of gerrymander-

ing, county boundaries should not be disturbed.

2. It is found by the General Assembly that, in

order to achieve effective representative government,

when it becomes necessary to group counties into a

senatorial district for purposes of reapportionment of

the Senate, they shall be grouped on the basis of com-

pactness, proximity, common economic interests and

characteristics, comparable geographical features and

degree of urbanization.

3. The difficulty of reapportioning the Senate

within acceptable tolerances, both presently and in the

future, makes desirable the establishment of senato-

rial districts with considerable flexibility or variation

in the number of Senators and the number of coun-

ties for each election district.

4. It is the policy of this state, using the findings

- set forth above, to adopt a plan of reapportionment

based substantially on population and to avoid any

dilution of the equal population plan in any signifi-

cant way.

5. That the General Assembly as a whole and act-

ing through committees had the matter of reappor-

tioning of the Senate before it from March 23, 1971

until November 11, 1971 when Act No. 932 of 1971

was signed by the Governor. That being cognizant

of the gravity of this matter and the time element

necessary to properly conduct the elections in 1972,

it immediately directed the Attorney General of the

State under the provisions of Concurrent Resolution

S 671 to immediately institute an action to determine

the validity of Act No. 932 of 1971. That as a result

3A

of the latter action an order of the three judge court

for the District of South Carolina, Columbia Divi-

sion, was issued on April 7, 1972, declaring the 1971

act invalid and granting the General Assembly thirty

days in which to enact another plan for its con-

sideration which would be within the guidelines set

forth in the order.

6. That thereafter the Joint Legislative Committee

on Senate Reapportionment met and recommended a

plan to reapportion the Senate containing the provi-

sions hereinafter set forth in Plan A.

That thereafter the Senate adopted the Joint Legis-

lative Committee’s recommendation and passed a bill

to reapportion the Senate containing the provisions

set forth in Plan A. That the House of Representa-

tives then amended the Bill and passed the same con-

taining the provisions hereafter set forth as Plan B.

That thereafter a Conference Committee was ap-

pointed which has been deliberating but that under

the time limitations the differences have not been

reconcilable to this date and that rather than to

default in the matter it is the consensus of the Gen-

eral Assembly that the plans which have been adopted

by the separate Houses should be submitted to the

Court with the firm belief that one of the plans so

submitted will be acceptable to and adopted by the

Court as being in compliance with the guidelines set

forth in its order.

7. That the attached exhibit is made a part of this

act to give a ready reference as to how the plans meet

the guidelines and criteria set forth in the Court’s

order of April 7, 1972.

4a

Section 2. Effective with the 1972 elections, the

State of South Carolina is hereby divided into the

following Senatorial Districts:

PLAN A

1970 Percent variance

from average

12

13

fA EIT DA GE — Rie 4

Anderson

Oconee

Pickens

EESTI ISS ER 5

Aiken

Marlboro

Orangeburg

226, 270

290, 259

57, 641

173, 724

109, 822

163, 271

283, 678

228, 853

107, 979

53. 442

224, 141

105, 029

112, 845

+0. 45

+3. 08

+2. 35

+2. 83

—2. 49

— 3. 36

+0. 75

+1. 59

—4.13

— 5.10

—0. 50

—6. 75

+0. 19

5A

Number 1970 Percent variance

Senators population from average

— 1 RSE AE re 1 56, 199 —0. 21

Se 2 116, 213 +3. 18

Hampton

Jasper

Beaufort

Colleton

De RR cin cei isin eereeeneetsecmens 5 281, 150 —0. 15

Georgetown

Each senate office shall constitute a separate and

distinct office to which a separate number shall be

assigned within each senatorial district. A candidate

for the office of Senator within any such district shall

be required to qualify for a specific senate office and

shall not be permitted to qualify for more than one

such office in any one election for the office of Senator.

The election ballots for the office of Senator in each

district shall reflect the number assigned to each senate

office and the names of the candidates for each.

In the event that Plan A does not meet the constitu-

tional guidelines as set forth by the Three Judge Fed-

eral Court in its order of April 7, 1972, then the

Senate of South Carolina shall be apportioned as

follows:

PLAN B

Number 1970 Percent variance

Senators population from average

MESSE ee 3 167, 314 —1

Anderson

Oconee

ECS) Cee ee 1 58, 959 +4. 68

Provided, that if the Court determines that the

division of District 1 into Districts 1 and 1A consti-

6A

tutes an unacceptable variance, they shall be joined

and designated as District 1 with four Senators

assigned thereto.

Number 1970 Percent variance

Senators population from average

i SEES 5 290, 259 3. 08

3 Spartanburg.............- 3 173, 724 2. 83

4 Greenwood_........-.--.-- 1 57, 641 2. 35

NN 4 215, 145 —4. 49

SS Ses 1 58, 503 3. 88

7 FR ecncccsenwéuses 4 233, 868 3. 82

6852EE——Oi_— OO 2 114, 320 1. 50

© Stites eccessenenenss 2 106, 715 —5. 25

NN 2 112, 607 —0. 02

OS i ote aces 2 106, 521 —5. 42

Oe cccticcbenmaes 5 279, 926 —0. 59

13. Lee

13-A Marlboro

Provided, that if the Court determines that the di-

vision of District 13 into Districts 13 and 13A con-

stitutes an unacceptable variance, they shall be joined

and designated as District 13 with two senators as-

signed thereto.

7A

Number 1970 Percent variance

Senators population from average

14 Kershaw. ..............____ 2 114, 152 1. 35

Sumter

15 Ciarendon.._._.___._.______ 2 115, 240 2. 32

Florence

16 Georgetown...............-- 3 168, 005 —0. 56

Horry

Marion

Williamsburg

— TTT 1 56, 199 —0. 21

18 Darlington........_.-_______ 1 53, 442 —05. 10

Each senate office shall constitute a separate and

distinct office to which a separate number shall be

assigned within each senatorial district. A candidate

for the office of Senator within any such district

shall be required to qualify for a specific senate office

and shall not be permitted to qualify for more than

one such office in any one election for the office of

Senator.

The election ballots for the office of Senator in each

district shall reflect the number assigned to each sen-

ate office and the names of the candidates for each.

Section 3. Each House office in this State shall

constitute a separate and distinct office to which a

separate number shall be assigned within each elec-

tion district for such an office. A candidate for such

an office shall be required to qualify for a specific

office and shall not be permitted to qualify for more

than one such office in any one election.

The election ballots for House offices shall reflect

the number assigned to each office and the names of

the candidates.

Section 4. This act shall take effect upon approval

by the Governor.

8a

In the Senate House the 5th day of May, 1972, the

Year of Our Lord One Thousand Nine Hundred and

Seventy-two——

President of Senate

Speaker of the House of Representatives,

Pro Tempore

Approved the 6th day of May, 1972

, Governor

APPENDIX B

In THE Untrep States District CourT FOR THE

District ofr SoutH CaroLtina, CoLUMBIA Division

Civiz Action Nos. 71-1106, 71-1123, 71-1211

Maaeore H. Twas, PLAINTIFF

Vv.

Joun C. West, GovERNorR oF SoutH Caroina, O.

FraANK THORNTON, SECRETARY OF STATE OF SOUTH

CAROLINA, EARLE E. Morris, LIEUTENANT GOVERNOR,

PRESIDENT OF THE SoutTH CAROLINA SENATE, AND

Lovick O. THomAs, CLERK OF THE SENATE OF THE

SouTH CaRoLINA GENERAL ASSEMBLY, DEFENDANTS

AND

DanteEL R. McL&op, INDIVIDUALLY AND ON BEHALF OF

ALL OTHERS SIMILARLY SITUATED AND AS ATTORNEY

GENERAL OF THE STATE OF SovutH CAROLINA,

PLAINTIFF

Vv.

JOHN C. West, GOVERNOR OF THE STATE OF SovuTH

CAROLINA, EarLeE E. Morris, Jr., LizuTenant Gov-

ERNOR OF THE STATE OF SovuTH CAROLINA AND

PRESIDENT OF THE SouTH CAROLINA SENATE, Lovick

OQ. THoMAs, CLERK OF THE SoutH CaRoLINA SENATE,

(9A)

10a

anp G. P. Catuison, Mrs. Marcaret TOWNSEND,

Mrs. Martua C. CHAPMAN, Encar L. Morris, aNnpb

Ernest A. FINNEY, AS MEMBERS OF AND CONSTITUT-

ING THE SovtrH Carotina State ELEcTION Com-

MISSION, DEFENDANTS

GitBert E. McMILLAN AND C. KENNETH POWELL,

PLAINTIFFS-INTERVEN ORS

AND

MatrHew D. McCottum, Tosias GaADSEN, F'LOSSIE

Gorpon, EuGeENE CAMPBELL, LEvi G. Byrp, JAMES

CRAWFORD, SAMUEL BOoLDEN, LEVERNE STEVENSON,

Quincy SmirH, Wim1iam McKintey Bowman,

JOHN Roy Harper II, W. F. Grsson, Moses Di.-

LIARD, JERRY Wiison, I. Day Watson, Mrs. Vic-

TORIA DELEE, Mrs. DororHy L. MatTTHEws,

Mrs. RacHeL H. JOHNSON, PLAINTIFFS

Vv.

JoHN C. West, GOVERNOR OF THE STATE OF SOUTH

CaroLInaA; EarLe E. Morris, Jr., LIEUTENANT Gov-

ERNOR OF THE StaTE OF SOUTH CAROLINA AND PRESI-

DENT OF THE SoutH CaroLina SENATE; Lovick O.

THomas, CLERK OF THE SouTH CAROLINA SENATE;

AnD G. P. CaLuison, Mrs. Marcaret TOowNsEND,

Mrs. MartHa C. CHapMAN, Epaar L. Morris aNnpD

Ernest A. FINNEY, JR., AS MEMBERS OF AND CON-

STITUTING THE SoutH CaRoLINA StTaTE ELECTION

CoMMISSION, DEFENDANTS.

Before HaynswortH, Chief Judge, Fourth Judi-

cial Circuit, and Russe.., Circuit Judge, and Martin,

Chief District Judge, District of South Carolina.

_—_—

eee ashame

lla

ORDER

We have considered the Act of the South Carolina

General Assembly, passed on May 5, 1972 and signed

by the Governor on May 6, 1972, reapportioning the

South Carolina Senate. We have reviewed each of the

three plans in that Act as well as other rlans sub-

mitted to the General Assembly. With the assistance

of a computer, we sought to determine whether any

other plan might be devised which would be mate-

rially better than those submitted by the General

Assembly.

Plan A, which the General Assembly asked us to

consider first, is within the guidelines set forth in our

opinion of April 7, 1972, and no other plan submitted

to the General Assembly or which the Court was able

to devise is a substantial improvement over Plan A.

The Court finds Plan A complies with the require-

ments of the Constitution of the United States, and

it is therefore approved.

Accordingly, it is ordered that the impending elec-

tions to the South Carolina Senate and all subsequent

elections be held in conformity with Plan A of the

Act unless it is revised by the General Assembly or

until after the census of 1980 or the further order

of this Court.

CLEMENT F’. Haynswortu, Jr.

Chief Judge, Fourth Circuit

DonaLp RussEL.

United States Circuit Judge

J. RoBert Martin, JR.

United States District Judge

U.S. GOVERNMENT PRINTING OFFICE: 1977