Amicus Brief — Dougherty County Bd. of Ed. v. White

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

DOUGHERTY COUNTY, GEORGIA BOARD OF EDUCATION,

ET AL., APPELLANTS

v.

JOHN E. WHITE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Wave H. McCree, JR.,

Solicitor General,

Drew S. Days, III,

Assistant Attorney General,

PETER BUSCEMI,

Assistant to the Solicitor General,

BRIAN K. LANDSBERG,

Attorney,

Department of Justice,

Washington, D.C. 20530.

———————————— eee

INDEX

Page

Interest of the United States. == 1

Questions presented 2

eR RT ER oi ral) eee 2

Summary of argument 5

Argument 8

I. Rule 58 is a “standard, practice, or pro-

IL.

cedure with respect to voting” and

therefore is subject to the ate Misi

requirements of Section 5 _ al 8

The Dougherty County Board of Educe-

tion is a political entity within a state

covered by Section 4 of the Voting

Rights Act and therefore must obtain

preclearance under Section 5 when it

adopts a change that affects voting _. 20

CITATIONS

Cases :

Allen vy. State Board of Elections, 393

Ese eee a

Bond v. White, 508 F. 2d 1397 _ 25

Broadrick vy. Oklahoma, 413 U.S. 601 . unis 15

City of Richmond v. United States, 422

U.S. 358 - sence lieceneseiilne itncneesie 12

Gaston County v. United States, 288 F.

Supp. 678, affirmed, 395 U.S. 285 _. 26

Georgia v. United States, 411 U.S. 526 12, 13,

16, 20

i! It

S , ,

sail tatutes and regulations—Continued Page

Gilmore v. Greene County Democratic

Party Executive Committee, 435 F. 2d

487 - Ue ccteaieds 12

Hadnott v. ‘Amos, 394 U.S. 358 _ 5, 10, 12

Herault v. Department of Human ‘Re-

sources, 137 Ga. App. 446, 224 S.E.

2d 480... 14

Johnson v. Branch, 364 F. 2d 177, ‘certio-

rari denied, 385 U.S. 1003 _.. == 18

Paige v. Gray, 399 F. Supp. 459, vacated,

538 F. 2d 1108, on remand, 437 F.

Supp. 137 - ts ale 19

Perkins v. Matthews, 400 U.S. 379 12, 13, 16

Pitts v. Busbee, 511 F. 2d 126 _ 25

South Carolina v. Katzenbach, 383 US.

301 - 9, 24

United ‘Ossining Party v. Hayduk, 357

Po CE dota tintesicta eee... 11, 12

United Public Workers of America

(C.1.0.) v. Mitchell, 330 U.S. 75 15

United States v. Board of Commissioners

of Sheffield, Alabama, No. 76-1662, de-

cided March 6, 1978 >>» >= SSS passim

United States v. Cohan, 358 F. Supp.

1217 - 12

United States Civil Service Commission v.

National Association of Letter Carriers,

AFL-CIO, 413 U.S. 548 _ sakesits 15

Waide v. Waller, 402 F. Supp. 922 - — =

Statutes and regulations:

Hatch Act, 5 U.S.C. 7324 14

Voting Rights Act of 1965, 79 Stat. 437,

as amended, 42 U.S.C. (and Supp. V)

1973 et seq:

Section 4, 42 U.S.C. (and Supp. V)

1973b . 1, 2, 7, 14, 20

Section 4(a), 42 USC. (Supp. V)

1973b(a) 25

Section 4(b), 42 USC. (Supp. ‘V)

Nk OO Te 8, 20

Section 4(c), 42 U.S.C. 1973b(c) _ 24

Section 5, 42 U.S.C. (Supp. V)

1973¢ - Lista ditt __ passim

Section 12(d), ‘42 U.S.C. 1973j(d) 2

Section 14, 42 U.S.C. (and Supp. Vv)

ee s

Section 14(c)(1), 42 U.S.C. 19731

(ce) (1) - 8

Section 14(c) (2), 42 USC. 19731

ED sevehlitAliaetininiialaadipeiiircactes ta. 21

Ga. Code Ann.:

§ 2-5302 (1977 Rev.) 26

§ 32-902 (1976 Rev.) 26

§ 40-2205 (1975 Rev.) 14

| ETE 13

fk ce 13

28 C.P.R. G1A(e) (4) 13

28 CPR. 61.4(e)(6) EE 13

Miscellaneous:

30 Fed. Reg. 9897 _ 20

H.R. Rep. No. 94-196, ‘Sth Cong. Ast

Sess. (1975) _ a

Iv

Miscellaneous—Continued

Hearings on S. 1564 (Civil Rights: Voting

Rights) before the Senate Committee on

the Judiciary, 89th Cong., 1st Sess.

I i healinchaietedasionencincieyrestinchininansnn-

S. Rep. No. 162, Part 3, 89th Cong., ist

Sess. (1965) —.....___

S. Rep. No. 94-295, an 1st Sess.

(1975) -

United States Commission c on n Civil Rights,

The Voting Rights Act: Ten Years

After (1975) - vas

United States Commission o on Civil Rights,

Voting (Book 1) (1961)

5, 10

Ju the Supreme Cot of the United States

OCTOBER TERM, 1978

No. 77-120

DOUGHERTY COUNTY, GEORGIA BOARD OF EDUCATION,

ET AL., APPELLANTS

v.

JOHN E. WHITE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

In areas covered by Section 4 of the Voting Rights

Act of 1965, 79 Stat. 438, as amended, 42 U.S.C.

(and Supp. V) 1973b, © ction 5 of the Act, 79 Stat.

439, as amended, 42 U.S.C. (Supp. V) 1973c, pro-

vides that changes in voting standards, practices, and

procedures may not become effective until they have

been precleared by the Attorney General or the United

States District Court for the District of Columbia.

(1)

2

Under Section 12(d) of the Act, 79 Stat. 444, as

amended, 42 U.S.C. 1973j(d), the Attorney General

is authorized to bring suit to enjoin the enforcement

of a voting change that should have been submitted

for preclearance but was.not. Accordingly, the At-

torney General has a substantial interest in the com-

pass of Section 5, as to both the kinds of govern-

mental entities required to submit voting changes for

preclearance and the kinds of governmental action

that may affect voting in such a way as to be subject

to preclearance.

QUESTIONS PRESENTED

1. Whether a rule requiring board of education

employees to take unpaid leaves of absence while they

campaign for or serve in elective political office is a

“standard, practice, or procedure with respect to

voting” within the meaning of Section 5 of the Voting

Rights Act of 1965. pari)

2. Whether voting changes adopted by a county

board of education in a state designated for coverage

under Section 4 of the Act must be precleared under

Section 5 before they may become effective.

STATEMENT

The facts in this case are essentially undisputed

(see Answer of Defendants (A. 8a-10a); Brief for

Appellants 8-11). In May 1972, appellee, a black

employee of appellant Dougherty County Board of

Education, announced his. intention to run for a seat

3

in the Georgia House of Representatives (A. 31a).

He has since alleged that he was the first black to

seek election to that office from Albany, Georgia (A.

4a). On June 12, 1972, a few weeks after appellee’s

public announcement of his candidacy, his employer,

the Board of Education, adopted Rule 58, which pro-

vides (A. 18a, 32a):

Political Office. Any employee of the school sys-

tem who becomes a candidate for any elective

political office, will be required to take a leave

of absence, without pay, such leave becoming ef-

fective upon the qualifying for such elective office

and continuing for the duration of such political

activity, and during the period of service in such

office, if elected thereto.

In June 1972, appellee qualified, under Georgia

election law, as a candidate for the Democratic pri-

mary. He was immediately required, under the newly-

adopted Rule 58, to take a leave of absence without

pay. Appellee was defeated in the primary election

in August 1972 and thereafter returned to his employ-

ment with the Board of Education (A. 24a, 32a). In

June 1974, appellee again qualified as a candidate for

the Georgia House of Representatives. In August of

that year, he won the Democratic primary and, in

November, the general election. Under Rule 58, ap-

pellee was required to take an unpaid leave of absence

from June 12, 1974 through November 18, 1974; he

was reinstated to his employment with the Board of

Education nearly two weeks after the November 5

election (A. 32a). In June 1976, appellee qualified as

4

a candidate to retain his seat in the state legislature.

Under Rule 58, he took an unpaid leave of absence

from the date of his qualification on June 8, 1976,

through his Democratic primary victory in August

1976. When it became clear that appellee would be

unopposed for reelection in November, he was rein-

stated to his employment with the Board of Education

on September 8, 1976 (<bid.).*

On June 11, 1976, appellee brought this suit, alleg-

ing that Rule 58 was a “standard, practice, or proce-

dure with respect to voting” that had been instituted

by appellants without the preclearance required by

Section 5 of the Voting Rights Act and that the Rule

was therefore unenforceable (A. 5a). A three-judge

district court was convened. See Allen v. State Board

of Elections, 393 U.S. 544, 563. The court held that

Rule 58 should have been submitted for preclearance

under Section 5. Relying on this Court’s decisions in

Allen and in Georgia v. United States, 411 U.S. 526,

the court characterized Section 5 as “an all encom-

passing protection against abridgement of an effec-

tive vote” (A. 35a). In particular, the court said,

Section 5 applies to any “modification[] of the politi-

cal process * * * which restricts the ability of citizens

to run for office” (ibid.). The court reasoned that

1The Georgia General Assembly sits for approximately

two and a half months at the beginning of each year. Although

not reflected in the record, appellee apparently was required

to take unpaid leaves of absence from his Board of Education

employment during his service at the 1975, 1976, 1977, and

1978 legislative sessions.

5

“(b]y imposing a financial loss on [Board of Educa-

tion] employees who choose to become candidates,

[Rule 58] makes it more difficult for them to partici-

pate in the democratic process and, consequently, re-

stricts the field from which the voters may select

their representatives” (ibid.). On this basis, the

court concluded that Rule 58 should have been sub-

mitted for preclearance. Because of appellants’ fail-

ure to make such a submission and obtain preclear-

ance from the Attorney General or the United States

District Court for the District of Columbia, the court

enjoined further enforcement of Rule 58.

SUMMARY OF ARGUMENT

Rule 58 is a “standard, practice, or procedure with

respect to voting” and therefore must be submitted

for preclearance under Section 5 of the Voting Rights

Act. This Court has held that Section 5 applies to

changes affecting candidate qualification (see Allen

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

Amos, 394 U.S. 358), and Congress has approved

that interpretation in its most recent extension of the

Act. S. Rep. No. 94-295, 94th Cong., 1st Sess. 16-17

(1975); H.R. Rep. No. 94-196, 94th Cong., 1st Sess.

9-10 (1975).

Although the Attorney General, in executing his

responsibilities under the Act, has had little experi-

ence with provisions like Rule 58, and although in

most circumstances the Attorney General might well

interpose no objection to such a rule, any provision

6

affecting the requirements for candidacy should be

subject to preclearance under Section 5. Rule 58

erects financial barriers to employees of appellant

Board of Education who may wish to seek elective

office and thus has a potential effect on the choices

actually presented to the voters. Accordingly, the

rule must be submitted for preclearance, regardless

of appellants’ estimate of the probability that the

Attorney General will not object to its enforcement.

Whatever may be the situation in this case, there

exists at least the possibility that rules like Rule 58

may have a racially discriminatory purpose or effect.

If the percentage of black professionals employed by

a school board or other public entity is substantially

higher than the percentage of white professionals em-

ployed by the same body, a rule restricting the politi-

eal activity of the body’s employees may have a dis-

portionate impact on blacks. Moreover, the timing of

Rule 58’s adoption in this case—less than a month

after appellee announced his candidacy for the state

legislature—suggests that a racially motivated board

of education could use such a rule to discourage black

employees from running for office. Because a rule

like Rule 58 could have the purpose or effect of

“abridging the right to vote on account of race or

color” and thereby restricting black access to the

political process, such a rule is a “standard, practice,

or procedure with respect to voting” within the mean-

ing of the Act and should be submitted for preclear-

ance under Section 5.

T-

2. Appellant Board of Education is a political unit

within a state covered by Section 4 of the Voting

Rights Act and therefore must obtain preclearance

under Section 5 when it adopts a change that affects

voting. This Court held in United States v. Board

of Commissioners of Sheffield, Alabama, No. 76-1662,

decided March 6, 1978, that in states covered under

Section 4, the preclearance requirements of Section 5

apply to all voting changes adopted by “political units

that may exercise control over critical aspects of the

voting process” (slip op. 15). Appellants seek to

distinguish that case on the ground that, unlike the

City of Sheffield, appellant Board of Education “has

no direct or indirect functions in connection with elec-

tion of public officers” (Br. 15). But whether a

political unit itself conducts elections is essentially

irrelevant to the purposes of Section 5. The critical

factor is control over the electoral process.

In adopting Rule 58 and establishing disincentives

to its employees’ participation in political campaigns,

appellant Board of Education demonstrated and exer-

cised its ability to influence the identity of the candi-

dates for the state legislature from Dougherty County.

The district court correctly held that this practical

effect was sufficient to require that Rule 58 be sub-

mitted for preclearance under Section 5. Any other

result would create a possibility that the provisions

of the Act could be circumvented merely by delega-

tion of control over various aspects of the electoral

system to a political entity that does not itself con-

8

duet elections. Such a development would run counter

to the purpose, legislative history, and judicial inter-

pretations of Section 5, and should not be permitted

by this Court.

ARGUMENT

I

RULE 58 IS A “STANDARD, PRACTICE, OR PRO-

CEDURE WITH RESPECT TO VOTING” AND

THEREFORE IS SUBJECT TO THE PRECLEAR-

ANCE REQUIREMENTS OF SECTION 5

Section 5 of the Voting Rights Act of 1965 re-

quires that, in states or political subdivisions covered

by Section 4(b) of the Act, new standards, practices,

or procedures with respect to voting may not be-

come effective unless they have been precleared by

the United States District Court for the District

of Columbia or the Attorney General. Congress has

expansively defined the term “voting,” as it is used

in the statute. Section 14(c) (1) of the Act, 79 Stat.

445, 42 U.S.C. 1973l(c)(1), provides that voting

“shall include all action necessary to make a vote

effective in any primary, special, or general elec-

tion * * *.” Neither Section 5 nor Section 14 nor

any other portion of the statute, however, elaborates

on the meaning of the phrase, “standard, practice,

or procedure with respect to voting.”

In upholding the constitutionality of the Voting

Rights Act, this Court declared that Congress had

designed the statute “to banish the blight of racial

discrimination in voting, which has infected the elec-

9

toral process in parts of our country for nearly a

century.” South Carolina v. Katzenbach, 383 U.S.

301, 308. Three years later, in Allen v. State Board

of Elections, 393 U.S. 544, 563-571, the Court grap-

pled for the first time with the basic question pre-

sented here, namely, what sort of measures did Con-

gress intend to embrace within the words “standard,

practice, or procedure with respect to voting.” Allen

held that the critical language of Section 5 should be

broadly construed in order to effectuate the “articu-

lated purposes of the legislation” (393 U.S. at 570).

The Court stated that “[t]he legislative history on

the whole supports the view that Congress intended

to reach any state enactment which altered the elec-

tion law of a covered State in even a minor way”

(id. at 566).

Appellees in the three Mississippi cases consolidated

with Allen argued that Section 5 should not be read

to cover “state rules relating to the qualification of

candidates” (393 U.S. at 564). (Whitley v. Williams,

one of the consolidated cases, involved four state statu-

tory revisions that made qualification as an inde-

pendent candidate substantially more difficult.) In

rejecting appellees’ argument, the Court stressed that

the Voting Rights Act “was aimed at the subtle, as

well as the obvious, state regulations which have the

effect of denying citizens their right to vote because

of their race” (id. at 565). By placing additional

obstacles in the path of prospective independent can-

didates, the Court reasoned, the changes at issue in

10

Whitley might “undermine the effectiveness” of voters

who wish to elect persons not affiliated with any

political party (id. at 570). Accordingly, the Court

determined that further enforcement of the disputed

statutory revisions should be enjoined pending their

submission and preclearance under Section 5.

In the 1975 extension of the Voting Rights Act,

Congress expressly approved Allen and the broad in-

terpretation it gave to the scope of Section 5. See

S. Rep. No. 94-295, 94th Cong., Ist Sess. 16 (1975) ;

H.R. Rep. No. 94-196, 94th Cong., Ist Sess. 9 (1975).

Both the House and Senate Judiciary Committees

were aware that preclearance had been required for

changes affecting candidate qualification and both

committees specifically mentioned increased candi-

date filing fees as an example of the kind of change

to which the Attorney General had interposed an

objection. S. Rep. No. 94-295, swpra, at 17; H.R. Rep.

No. 94-196, supra, at 10. Moreover, both committees

relied heavily on the 1975 report of the United States

Commission on Civil Rights entitled The Voting

Rights Act: Ten Years After. That report (at 131-

203) documented at length the problems faced by

minority candidates who had attempted to qualify

for office.

In cases decided after Allen, this Court and other

federal courts have adhered to the principle that

changes affecting prerequisites for candidacy must be

submitted for preclearance under Section 5. For ex-

ample, in Hadnott v. Amos, 394 U.S. 358, the Court

considered a newly-enacted Alabama law that required

11

prospective independent candidates to declare their

intention to seek public office more than two months

earlier than previously necessary. Finding the con-

trolling question indistinguishable from that presented

in Whitley, the Court held that the new statute could

not be enforced until precleared under Section 5 (394

U.S. at 366). Similarly, three-judge district courts

in Waide v. Waller, 402 F. Supp. 922, 924-925 (N.D.

Miss.), and United Ossining Party v. Hayduk, 357

F. Supp. 962, 966 (S.D. N.Y.), concluded that the

requirements of Section 5 apply to changes in the

standards governing qualification as a political can-

didate.” The Waide court declared (402 F. Supp. at

925):

*The Mississippi law at issue in Waide required that an

attorney be admitted to practice before the state supreme

court for a period of two years before he could seek election

as a local district attorney. Although enacted in 1966, the

statute had not been submitted for preclearance at the time

Waide filed his complaint in 1975. During litigation in the

district court, Mississippi submitted the statute to the At-

torney General under Section 5. Seventeen days before the

district court issued its opinion and judgment, the Attorney

General notified the court by telegram that he would interpose

no objection to the law. 402 F. Supp. at 925.

United Ossining Party involved a New York law that placed

certain restrictions on cross-endorsements of candidates for

public office. The challenged amendment to New York’s Elec-

tion Law provided that “no candidate for an office othe: than

a judicial or statewide office shall be eligible to receive the

nomination and to appear on the ballot as the candidate of

both a political party and an independent group or body”

(357 F. Supp. at 964). The court held that the new statute

could not be enforced because it had not been precleared

under Section 5 (id. at 966).

12

A statute which -makes more stringent the re-

quirements for political candidacy and thus limits

to some extent the electorate’s ability to choose

does impact on voting rights in a fashion within

the contemplation of § 5, and is, therefore, sub-

ject to § 5 provisions.

The decisions in Hadnott, Waide, and United

Ossining Party are part of a substantial body of

precedent that has implemented a broad construction

of Section 5 in response to the guidance provided by

this Court in Allen. The preclearance requirements

of Section 5 have been applied not only to changes

affecting candidate qualification, but also to reap-

portionment plans (Georgia v. United States, 411

U.S. 526), changes in municipal boundaries through

annexations of adjacent areas (Perkins v. Matthews,

400 U.S. 379, 388-390; see also City of Richmond v.

United States, 422 U.S. 358), changes in the location

of polling places (Perkins v. Matthews, supra, 400

U.S. at 387-388), and a wide variety of miscellane-

ous alterations in existing practices such as the pro-

cedures for casting a write-in vote, the permissibility

of sample ballots in the voting booth, and the size of

the vote required for election. See, e.g., Allen v. State

Board of Elections, supra, 393 U.S. at 552-553, 570;

Gilmore v. Greene County Democratic Party Execu-

tive Committee, 485 F. 2d 487 (C.A. 5); United

States v. Cohan, 358 F. Supp. 1217 (S.D. Ga.). The

expansive interpretation of the statutory phrase,

“standard, practice, or procedure with respect to vot-

ing,” reflects this Court’s admonition that “Section 5

y

13

is not concerned with a simple inventory of voting

procedures, but rather with the reality of changed

practices as they affect Negro voters.” Georgia v.

United States, supra, 411 U.S. at 531.

The Attorney General’s regulations under Section

5, adopted in 1971, also take an inclusive approach

to the kind of changes covered by the statute. See

28 C.F.R. Part 51. The regulations state that “[a]ll

changes affecting voting, even though the change ap-

pears to be minor or indirect,” are subject to pre-

clearance under Section 5. 28 C.F.R. 51.4(a). In

particular, the Attorney General has specified that

“Ta]ny alteration affecting the eligibility of persons

to become or remain candidates or obtain a position

on the ballot in primary or general elections or to be-

come or remain officeholders * * *” (28 C.F.R. 51.4

(c)(4)) and “[a]ny change in the eligibility and

qualification procedures for independent candidates”

(28 C.F.R. 51.4(c) (5) ) must be submitted for prior

approval. This Court has stated that the Attorney

General’s interpretation of the Voting Rights Act is

“persuasive evidence of the original understanding,

especially in light of the extensive role the Attorney

General played in drafting the statute and explaining

its operation to Congress.” United States v. Board of

Commissioners of Sheffield, Alabama, No. 76-1662,

decided March 6, 1978, slip op. 19-20. See also

Perkins v. Matthews, supra, 400 U.S. at 390-394.

In carrying out his administrative and enforce-

ment responsibilities under the Voting Rights Act,

14

the Attorney General has had little experience with

provisions such as appellant Board of Education’s

Rule 58, at issue in this case.* Although Department

of Justice records show that numerous changes affect-

ing candidate qualification have been submitted to the

Attorney General for preclearance, none of these sub-

missions involved a state or local rule that imposed

restrictions on the political activity of government em-

ployees. At least one state, after the effective date of

its coverage under Section 4 of the Voting Rights

Act, has enacted a law limiting political activity by

employees included within the state’s merit system.

See Ga. Code Ann. § 40-2205 (1975 Rev.). This

statute, in effect a state counterpart to the federal

Hatch Act, 5 U.S.C. 7324, creates the position of

State Commissioner of Personnel Administration and

requires the Commissioner to submit to the Governor

rules and regulations that “define and prohibit im-

proper political activity” by state employees. Such

regulations have apparently been submitted to and

approved by the Governor (see Herault v. Department

of Human Resources, 137 Ga. App. 446, 224 S.E. 2d

480), but neither the statute nor the regulations have

* Rule 58 came to the attention of the Department of Justice

shortly before the commencement of this litigation when coun-

sel for appellee contacted attorneys in the Voting Section of

the Civil Rights Division. On August 26, 1976, two and a half

months after appellee filed his complaint, Assistant Attorney

General Pottinger wrote to the Superintendent of the Dough-

erty County School System and informed him that Rule 58

should be submitted for preclearance under Section 5 (A. 28a).

15

been submitted for preclearance under Section 5 and

the Attorney General has not sought to enjoin en-

forcement of the political activity rules pending fed-

eral review.

This Court has expressed constitutional approval of

the Hatch Act and of similar provisions in state law.

See United States Civil Service Commission v. Na-

tional Association of Letter Carriers, AFL-CIO, 413

U.S. 548; Broadrick v. Oklahoma, 413 U.S. 601;

United Public Workers of America (C.1.0.) v.

Mitchell, 330 U.S. 75. Save for the allegations in

the present controversy, we are unaware of any sug-

gestion in a litigated case that limitations on public

employees’ political activity serve to reduce minority

access to the political process. Accordingly, it may

fairly be supposed that, in the absence of special cir-

cumstances, state statutes or local rules like the one

currently in dispute would be found not to have the

purpose or effect of “denying or abridging the right

to vote on account of race or color” and would there-

fore be precleared by the Attorney General if sub-

mitted under Section 5.

In attempting to establish that Rule 58 is not sub-

ject to preclearance under Section 5, appellants argue

that the rule is “a means of getting a full days work

for a full days pay—nothing more and nothing less”

(Br. 20). But the fact remains that Rule 58 singles

out political candidacy for special treatment; it is not

a neutrally drawn, generally applicable work rule con-

cerning absenteeism that equally affects political or

16

non-political activities. And, as this Court has fre-

quently observed, the worthiness of a particular

change with respect to voting or the likely fate of

that change once submitted for preclearance is essen-

tially irrelevant to the question whether the change

must be submitted in the first place. See, e.g., Allen

v. State Board of Elections, supra, 393 U.S. at 571;

Georgia v. United States, supra, 411 U.S. at 534.

Regardless, therefore, of whether the Attorney Gen-

eral would interpose an objection if Rule 58 were

submitted to him under Section 5, appellants remain

obligated to make such a submission. Furthermore,

that obligation has not been suspended by the failure

of the Attorney General to initiate Section 5 enforce-

ment proceedings with respect to other comparable

provisions not submitted for preclearance. As this

Court recognized in Perkins v. Matthews, supra, 400

U.S. at 391-392 n. 10, “Section 5 was enacted in large

part because of the acknowledged and anticipated

inability of the Justice Department—given limited

resources—to investigate independently all changes

with respect to voting enacted by States and subdivi-

sions covered by the Act. * * * For that reason, § 5

places the burden on the affected polities to submit

all changes for prior approval.”

Rule 58 is subject to the preclearance requirements

of Section 5 because it imposes financial burdens on a

particular group of prospective political candidates

and thereby discourages members of that group from

running for elective office. By erecting an additional

barrier to the candidacy of board of education em-

17

ployees, the rule tends to restrict entry into political

campaigns and thus to limit the choices available to

Dougherty County voters. As the district court held

(A. 35a), Section 5

applies to modifications of the political process

and all that that process entails, including the

implementation of any policy * * * which re-

stricts the ability of citizens to run for office.

Rule 58 of the Dougherty County Board of

Education is such a modification of the political

process. By imposing a financial loss on its em-

ployees who choose to become candidates, it makes

it more difficult for them to participate in the

democratic process and, consequently, restricts

the field from which the voters may select their

representatives. Asin Allen, supra, and Hadnott,

supra, it is an “increased barrier” for a candi-

date and for that reason it is a “procedure with

respect to voting” that is subject to the require-

ments of Section Five.

While it may be true, as suggested above, that the

vast majority of provisions like Rule 58 would not

prompt objection by the Attorney General, such rules

do contain at least the potential for abuse. If, for

example, black candidates are significantly more likely

than white candidates to be drawn from the ranks of

public employees, a provision like Rule 58 may place

blacks at a substantial competitive disadvantage in

seeking elective office and may seriously diminish

citizens’ opportunities to vote for black candidates.

Indeed, in this case, appellee has presented census

18

statistics that indicate that black elementary and

secondary school teachers comprise approximately 54

percent of all black professionals in Georgia, while

white teachers comprise only slightly more than 21

percent of white professionals in the state. See Brief

for Appellee 7 n. 5. A rule that discourages teachers

from running for political office may thus have a

disproportionate impact on the pool of potential black

candidates.‘

The timing of Rule 58’s adoption also suggests the

possibility that such a rule may be used for a racially

discriminatory purpose. Appellant Board of Educa-

tion adopted Rule 58 less than one month after ap-

pellee announced his candidacy for the state legisla-

*The United States Commission on Civil Rights, in its

1961 Report—Voting (Book 1), commented on the practice of

economic retaliation against black teachers involved in at-

tempts to improve black voter registration and participation in

the political process. The Report stated (pp. 164, 190):

A significant aspect of economic retaliation involves

Negro teachers—who not only should be qualified to vote,

but might be expected to be a source of leadership for

the Negro community in general.

* * * * *

* * * In several counties Negro teachers are warned to

refrain from taking too active an interest in political

matters upon pain of losing their jobs.

The phenomenon described by the Civil Rights Commission is

also reflected in reported decisions. See, e.g., Johnson V.

Branch, 364 F. 2d 177 (C.A. 4) (en banc), certiorari denied,

385 U.S. 1003, in which a local school board attempted to dis-

miss a black teacher who had worked in a voter registration

drive and helped in the campaigns of her husband and her

father for public office.

19.

ture. Appellee was the first black in recent years to

seek election to that office from Dougherty County.’

It is at least possible that, in imposing the unpaid

leave of absence requirement on employees running

for political office, the Board acted with the specific

purpose of deterring appellee from continuing his

campaign and that its reasons for doing so were

related in part to appellee’s race rather than his

status as an employee. Appellee has alleged that he

was the first employee of appellant Board of Edu-

cation to seek elective office (Br. for Appellee 6 n. 5).

Thus, it does not appear that Rule 58 was adopted in

response to unfavorable experience with employee

absenteeism attributable to participation in political

campaigns.

Even if the rule at issue in this case was not

racially motivated and would not “have the effect of

denying or abridging the right to vote on account of

race,” the facts presented here are sufficiently sugges-

tive of those possibilities to demonstrate that rules

like Rule 58 should be subject to the preclearance

requirements of Section 5. With respect to the public

employees that they cover, such rules erect substantial

barriers to candidacy for and service in political office.

They thus directly affect public employees’ decisions to

* For an historical discussion of segregation in Albany,

Georgia, and a detailed description of the city’s racially dis-

criminatory electoral practices, see Paige v. Gray, 399 F.

Supp. 459 (M.D. Ga.), vacated, 538 F. 2d 1108 (C.A. 5), on

remand, 487 F. Supp. 187 (M.D. Ga.). Albany is the county

seat of Dougherty County and contains approximately 80

percent of the county’s population.

20

seek election and, in turn, the choice of candidates

available to the voters. Because of their potential

impact on the composition of the ballot, rules like Rule

58 are “standard{s], practice[s], or procedure[s]

with respect to voting” within the meaning of Section

5 and they therefore may not be enforced until they

have been precleared by the Attorney General or the

United States District Court for the District of

Columbia.

II

THE DOUGHERTY COUNTY BOARD OF EDUCA-

TION IS A POLITICAL ENTITY WITHIN A STATE

COVERED BY SECTION 4 OF THE VOTING RIGHTS

ACT AND THEREFORE MUST OBTAIN PRECLEAR-

ANCE UNDER SECTION 5 WHEN IT ADOPTS A

CHANGE THAT AFFECTS VOTING

In United States v. Board of Commissioners of

Sheffield, Alabama, supra, this Court held that once

a state has been designated for coverage under Sec-

tion 4 of the Voting Rights Act, 42 U.S.C. (and

Supp. V) 1973b, the preclearance requirements of

Section 5 apply to all voting changes adopted within

that state by “political units that may exercise con-

trol over critical aspects of the voting process” (slip

op. 15). On August 6, 1965, the Attorney General

and Director of the Census having made the necessary

findings under Section 4(b), Georgia was designated

as a covered jurisdiction under the Act.* As evidenced

* 30 Fed. Reg. 9897. See also Georgia Vv. United States, supra,

411 U.S. at 528 n. 1.

21

by its adoption of Rule 58, appellant Board of Educa-

tion is a political unit whose actions may directly

affect a critical aspect of the voting process, i.e., the

potential candidacy of a significant group of public

employees. Accordingly, under Sheffield, the Board

must submit Rule 58 and any other voting changes it

adopts for preclearance under Section 5, even though

the Board itself does not register voters and therefore

is not a “political subdivision” within the definition of

that term contained in Section 14(c) (2) of the Act,

42 U.S.C. 19781(c) (2).

Appellants acknowledge, as they must, both the

holding in Sheffield (Br. 15-16) and the status of the

Board of Education as a political unit within a cov-

ered state (Br. 14). They contend, however, that be-

cause the Board “has no direct or indirect functions

in connection with election of public officers” (Br. 15),

no action of the Board, even if it constitutes a change

in a “standard, practice, or procedure with respect to

voting,” can be subject to the preclearance require-

ments of Section 5. Appellants seek to distinguish

Sheffield on the ground that, unlike the Board of

Education in this case, the City of Sheffield does con-

duct elections and thus plainly exercises “control over

the electoral processes” (slip op. 10).

Neither the language nor the legislative history of

the Voting Rights Act supports the distinction appel-

lants have attempted to draw. Preclearance under

Section 5 is required whenever a political unit within

a covered state adopts a change in a “standard, prac-

22

tice, or procedure with respect to voting.” The politi-

cal unit need not be one that itself conducts elections.

No such limitation is explicitly stated in the Act, and

none is fairly implied. This Court has properly in-

terpreted Section 5 to give it “the broadest possible

scope” (Allen v. State Board of Elections, supra, 393

U.S. at 567; see also United States v. Board of Com-

missioners of Sheffield, Alabama, supra, slip op. 11),

and Congress, in its most recent extension of the

period during which the Voting Rights Act is to be

effective, stated unequivocally that “all changes affect-

ing voting” must be precleared under Section 5. H.R.

Rep. No. 94-196, 94th Cong., Ist Sess. 58 (1975). See

also the detailed discussion of legislative history in

United States v. Board of Commissioners of Sheffield,

Alabama, supra, slip op. 18-24.

Under this Court’s decision in Sheffield, Section 5

applies to all governmental units “having power over

any aspect of the electoral process within designated

jurisdictions” (slip op. 6). By providing disincentives

to its employees’ participation in political campaigns,

appellant Board of Education demonstrated and ex-

ercised its power over an aspect of the electoral

process. If appellants’ proposed restriction on the

compass of Section 5 were correct and if rules adopted

by the Board were not subject to preclearance, politi-

cal entities within covered jurisdictions could circum-

vent the requirements of Section 5 simply by delegat-

ing legislative and administrative responsibilities for

changes affecting voting to political bodies that do

23°

not conduct elections.’ This Court concluded in Shef-

field that application of the preclearance procedure

only to changes enacted by political units that register

voters “would permit the precise evil that § 5 was

designed to eliminate” (slip op. 13). Covered states

could avoid the necessity for federal preclearance of

voting changes by the simple expedient of “allowing

local entities that do not conduct voter registration

to control critical aspects of the electoral process”

(ibid.). To an extent perhaps not as great but none-

theless real, if appellants’ position in this case were

accepted, the consequence would be “to nullify both

§5 and the Act in a large number of its potential

applications” (ibid.).

Indeed, the primary motivation behind Section 5

was a congressional recognition that, in areas with a

history of racially discriminatory voting practices,

legislative efforts to eliminate discrimination would

almost undoubtedly be met by attempts at evasion or

nullification. Congress therefore began by identifying

* Presumably such delegations themselves would be subject

to preclearance, and appellants might argue that this initial

federal scrutiny would ensure adequate consideration of the

interests protected by Section 5. But a transfer of authority

from one political unit to another would in all likelihood ap-

pear racially neutral on its face. Moreover, it might be com-

paratively easy to justify on grounds of governmental effi-

ciency. Once approval for such a delegation was obtained,

no further submissions under Section 5 would be required,

under appellants’ theory, because all voting changes would be

adopted by an entity that did not itself conduct elections.

Such a result is plainly not contemplated by the language,

legislative history, or judicial interpretations of Section 5.

24

certain factors—low registration or voter turnout

and prior use of a “test or device” as defined in Sec-

tion 4(c) of the Act, 42 U.S.C. 1973b(c)—the coinci-

dence of which would indicate a high probability of

racial discrimination in a jurisdiction’s electoral sys-

tem. See S. Rep. No. 162, Part 3, 89th Cong., 1st

Sess. 14 (1965); Hearings on S. 1564 (Civil Rights:

Voting Rights) before the Senate Committee on the

Judiciary, 89th Cong., 1st Sess. 1477 et seg. (1965) ;

United States v. Board of Commissioners of Sheffield,

Alabama, supra, slip op. 8; South Carolina v. Katzen-

bach, supra, 383 U.S. at 329-332. In areas satisfying

the coverage formula thus produced, Congress then

provided not only that no test or device could be used

to deprive any person of his right to vote, but also

that no change in existing voting practices could be

enforced unless first precleared by the Attorney Gen-

eral or the United States District Court for the Dis-

trict of Columbia.

In South Carolina v. Katzenbach, supra, 383 U.S.

at 335 (footnote omitted), this Court explained the

circumstances that confronted Congress in 1965:

Congress knew that some of the States covered by

§ 4(b) of the Act had resorted to the extraordi-

nary stratagem of contriving new rules of vari-

ous kinds for the sole purpose of perpetuating

voting discrimination in the face of adverse fed-

eral court decrees. Congress had reason to sup-

pose that these States might try similar ma-

neuvers in the future in order to evade the

remedies for voting discrimination contained in

the Act. itself.

25

Section 5 was the legislative response to this problem.

As the Court observed in Sheffield (slip op. 10), “[b]y

freezing each covered jurisdiction’s election proce-

dures, Congress shifted the advantages of time and

inertia from the perpetrators of the evil to its

victims.”

Thus, in enacting Section 5, Congress sought to

keep the electoral process free from new forms cf

discrimination. Whether a particular change in a

standard, practice, or procedure with respect to vot-

ing is adopted by a political unit that does not itself

conduct elections is a consideration essentially irrele-

vant to the purpose of Section 5. That provision’s

primary concern is the effect of voting changes on

the electoral process, not the identity of the political

unit responsible for the change’s adoption or enforce-

ment.

A change enacted by a jurisdiction that conducts

elections is covered by Section 5 even if the change

affects only elections conducted by entities other than

the jurisdiction enacting the change. See, ¢.g., Pitts

v. Busbee, 511 F. 2d 126 (C.A. 5); Bond v. White,

508 F. 2d 1397 (C.A. 5) (both holding that state

enactments affecting only county elections are subject

to Section 5). Likewise, a jurisdiction seeking declara-

tory relief from coverage under Section 4(a) of the

Act must demonstrate not only that no discriminatory

test or device has been used in its own elections for

the past five years, but also that no such test or device

has been used during that period in any election con-

26

ducted by any political unit within the jurisdiction.

See, e.g., Gaston County v. United States, 288 F. Supp.

678, 691 (D. D.C.) (concurring opinion), affirmed,

395 U.S. 285. Appellants do not disagree. Yet, under

their interpretation of Section 5, changes affecting

another jurisdiction’s elections would not be subject

to preclearance if the enacting political unit did not

itself conduct some elections. There is no justifica-

tion for this anomalous result.

The applicability of Section 5 in this case should

not turn upon peculiarities of state law regarding the

method of selecting local boards of education. If ap-

pellant Board of Education conducted elections for the

purpose of choosing its members or officers, appellants

would apparently agree that voting changes adopted

by the Board should be submitted for preclearance

under Section 5. But because, in accordance with

Georgia law (Ga. Code Ann. § 32-902 (1976 Rev.) ),

appellant Board of Education has been appointed by

the Dougherty County grand jury,* appellants contend

that Section 5 cannot apply. Appellants have pre-

*The 1976 Georgia Constitution provides that the grand

jury of each county shall appoint the members of the county’s

Board of Education, unless a local law or local constitutional

amendment approved by a majority of the county’s voters

authorizes election of the Board (see Ga. Code Ann. § 2-5302

(1977 Rev.)). While appellant Board is still appointed by

the Dougherty County grand jury, several other Georgia coun-

ties have chosen to elect their boards of education. The Section

5 records of the Department of Justice indicate that submis-

sions under Section 5 have been received from such elected

boards of education.

27

sented no evidence that this limited statutory con-

struction comports with congressional intent, and in-

deed no such evidence exists. If appellants were cor-

rect, the City of Sheffield, Alabama, which does con-

duct elections, would be required to obtain preclear-

ance for a rule curbing the political activities of its

employees in the elections of other jurisdictions, but

appellant Board of Education’s analogous rule would

be immune from federal review under Section 5.° This

arbitrary restriction on the scope of the boi: Rights

Act should be rejected.

CONCLUSION

The judgment of the district court should be

affirmed.

Respectfully submitted.

WabE H. McCREE, JR.,

Solicitor General.

Drew S. Days, III,

Assistant Attorney General.

PETER BUSCEMI,

Assistant to the Solicitor General.

BRIAN K. LANDSBERG,

Attorney.

JULY 1978.

® Of course, if a private company were to adopt a rule pro-

hibiting or regulating political activity by its employees, such

a rule would not be subject to preclearance, because Section

5 applies in terms only to state action.

® ©. s. covernmant eeintine orrica; 1976 269560 73