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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 32

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0835%3A6. Public record. Not legal advice.