Appellants Reply Brief — City of Rome v. United States

Ott & 1979

IN THE

Supreme Court of the United Spates coor JR., CLERK

OcToBeER TERM, 1979

No. 78-1840

City or Rome, Bruce Hamner. and H. F. Hunter, JR..

Appellants,

v.

Unrrep States or America, BENJAMIN R. CIVILETTI,

Attorney General of the United States, and Drew S.

Days ITT, Assistant Attorney General of the United

States,

| ppe ees.

On Appeal From the United States District Court

For the District of Columbia

APPELLANTS’ REPLY BRIEF

Rosert M. Brinson

City Attorney of Rome, Georgia

Brinson, Askew & Berry

200 North Fifth Avenne

Rome, Georgia 30161

(404) 291-8853

WiiuiamM FE. SUMNER

Burton B. Goupsrein, -}R.

BaRBARA A. SPECK

Long, Aldridge, Heiner, Stevens

& Sumner

1900 Rhodes-Haverty Building

Atlanta, Georgia 30303

JosEPH W. Dorn

Kilpatrick & Cody

2033 K Street, N.W.

Suite 400

Washington, D.C. 20006

Counsel for Appellauts

Press of Byron S. ADAMS PRINTING, I>'c., WASHINGTON, D.C

a

a ae

INDEX

Page

I. Tue Principat Issurs BErorr THE Court ...... 1

Il. Recurrine Positrions or APPELLEES ........... 2

LUI. Tue Construction or Section 5 0r tue Act... 9

1V. Tue Construction or Section 4 0r rue Act... 13

V. THe ConstirutTionaL Limits Upon tue Power or

JONGRESS WITH Respect to Section 5o0r tHE Act 16

VI. Tue Impact or Secrion 5 or tHE Act Upon Basic

Concerts OF F'RDBRARIBIE 6... 60 ccc ccsesescces 18

VII. PrecLearRANce BY THE ATTORNEY GENERAL ..... 19

VEER. BUMMANT vs) 4 5a00d can obhense toes vee eee 23

ER. COCO bids. cxdnuseacenekeeele eee 24

TABLE OF AUTHORITIES

CasEs:

Allen v. State Board of Elections, 393 U.S. 544 (1969) 5

Beer v. United States, 485 U.S. 130 (1976) .......... 2,9

Berry v. Doles, 498 UB. 190 (1978): 2. wc ccc ncwcwcess 5)

Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723

CROTR) © y.vriv'n'c 0a-asoee vee) be eA enero eee 14

Briscoe v. Bell, 482 U.S. 404 (1977) ..... tb wiaiais MR SCENM 22

Chung Fook v. White, 264 U.S. 443 (1924) .......... 14

City of Richmond vy. United States, 422 U.S. 358

RASTG). bust ves taladesieneaddend Ceeeaweaeee 10, 11, 12

Corona Coal Co. v. United States, 263 U.S. 537 (1924) 14

il Table of Authorities Continued

Page

Crooks v. Harrelson, 282 U.S. 55 (19380) ............ 14

Einst & Ernst v. Hochfelder, 425 U.S. 185 (1976) .... 14

Fitzpatrick vy. Bitzer, 427 U.S. 445 (1976) ............ 18

Gemsco, Inc. v. Walling, 324 U.S, 244 (1940) ........ 15

George Van Camp & Sons v. American Can Co., 278

RE BOR CUBES D oie ica eels Se ceces hie s cekayes 14

Greyhound Corp. v. Mt. Hood Stages, Inc., 487 U.S. 322

CROTGY eis steve ceindsts HERA Reese ene hae aes 14

Katzenbach v. Morgan, 384 U.S. 641 (1966) .......... 3

Lassiter v. Northampton County Board of Elections,

250. TSB. 4G CARRS bin nec cei ene eel ya es eeeieas 17

Milliken v. Bradley, 483 U.S. 267 (1977) ............ 7

Morris v. Gressette, 482 U.S. 491 (1977) ............ 22

National Home for Disabled Volunteer Soldiers v.

Wood, 209 U.S. 321i (1958). 00 1. cksnapeviebes 14

National League of Cities v. Usery, 426 U.S. 833 (1976) 18

Oregon v. Mitchell, 400 U.S. 112 (1970) ............. 3, 17

Osaka Shosen Kaisha Line v. United States, 300 U.S.

ae 2) Re Pa Pe NEE SCs eRe A era Gy Sp 14

Packard Motor Car Co. vy. NLRB, 330 U.S. 485 (1947) 14

Pennsylvania R.R. vy. International Coal Mining Co.,

SOO WB. TRG CRAEE a. oasis a Via elec bale

Perkins v. Matthews, 400 U.S. 379 (1971) ........... 4)

Regents of the University of California v. Bakke, 438

UB. Te CUBIS). oi sive n hence ee ea eaeals 14

Richards vy. United States, 369 U.S. 1 (1962) ........ 14

Rizzo v. Goode, 423 U.S. 362 (1976) ..........cceee 19

Santa Fe Industries, Inc. v. Green, 430 U.S. 462 (1977) 14

Smith v. Allwright, 321 U.S. 649 (1944) ............ 8

South Carolina v. Katzenbach, 383 U.S. 301 (1966) . .10, 15,

16, 17

Table of Authorities Continued iii

Page

St. Louis, 1.M. & S.R. Co. v. Taylor, 210 U.S. 281

EE Me Mie BAN! ew o> Ak ci ae YI NTT 14

Taft v. Commissioner, 304 U.S. 351 (1988) .......... 14

Terry v. Adams, 345 U.S. 461 (1953) ............... 8

United States v. Board of Commissioners, 435 U.S. 110

CAUGC) COME BO “EB INEEE Rokk pins cena dundee 13, 14

United States v. Great N. Ry. Co., 348 U.S. 562 (1952) 15

Umited States v. Lexington, 232 U.S. 399 (1914) ...... 15

Uniied States v. Missouri Pac. R.R., 278 U.S. 269 (1929) 15

United States v. Oregon, 366 U.S. 643 (1961) ........ 15

United States v. Public Utility Commission, 345 U.S.

OP Ce ile ialradcr costes NUP 15

United States v. Sisson, 399 U.S. 267 (1970) ........ 14

Washington v. Davis, 426 U.S. 229 (1976) ........... 3

Whitcomb v. Chavis, 403 U.S. 124 (1971) ........... 4)

White v. Regester, 412 U.S. 755 (1973) ............. 5D

Wilbur v. U.S., 284 U.S. 231 (1981) ............ /juct. “Oe

Zimmer v. McKeithen, 485 F.2d 1297 (Sth Cir. 1973),

aff’d sub nom. East Carroll Parish School Board

v. Marshall, 424 U.S. 636 (1976) .............. 11,12

CoNSTITUTION !

ee I, Bs OO iii Se os bids cree ee eres 19

Oe ae a errs iy lard 18

ee a nae nae ieeaeeuianen 18

Wie SAVN, MOONE, Tk 5g hoa ence vkaex align en vane 18

pif ae A aia ee ee Ate TT Sm i eget) pes ae 18, 19

ee MUNN, BOE, PAS 8k ik be kb adcid ae Cea bane eees 17,18

a RAE, MONO IY oe ice bc ax ek cp ewe neivaees passim

iv Table of Authorities Continued

Page

STATUTES:

42 U.S.C.A. § 1973b (Cum. Supp. 1974 to 1978) ..13, 14, 1

42 U.S.C.A. § 1973¢ (Cum. Supp. 1974 to 1978) ....passim

Georgia Election Code, Ga, Cope ANN.

§§ 34-101 to 9902 (1970 & Cum. Supp. 1979) ..... 6, 12

Georgia Municipal Election Code, Ga. Copr Ann.

§§ 344-101 to 1602 (1970 & Cum. Supp. 1979) ..4, 6, 12,

19, 20

REGULATIONS:

Be SP aes Sk Oe AEOOE isk cnc beeeshaannsndbeune 20, 21

SS SAF es, Det CAMS Sahcdwadace Nien envees sock LO ae

SS Sy a a CECE CROTON ols SicwleW Neves pare ueaweups 20

ee AE eS Ot D EOE Ais icnsiccdapicnaaheeesos 20

sk AS ere eee re Per gee 20, 21

MISCELLANEOUS:

L. Trise, A Treatises On AMERICAN CONSTITUTIONAL

Bae CRON aha oahbiatehatassmbawn eas Fane 23

Brief Amicus Curiae of Pacific Legal Foundation in

Support of Appellants City of Rome ............ 12

IN THE

Supreme Court of the United States

OctToser Term, 1979

No. 78-1840

es

City or Rome, Bruce HAMLeEr, and H. F. Hunter, Jr.,

Appellants,

v.

Unirep States or AMericA, BENJAMIN R. CIVvILeTTT,

Attorney General of the United States, and Drew S.

Days III, Assistant Attorney General of the United

States,

Appellees.

On Appeal From the United States District Court

For the District of Columbia

— ——_—_———

APPELLANTS’ REPLY BRIEF

——_——_

In this Reply Brief Appellants restate the issues be-

fore this Court, reply to several recurring positions of

the brief submitted by Appellees (the ‘‘ Appellees’

Brief’’), and reply, sertatim, to each portion of Appel-

lees’ Brief.

I.

THE PRINCIPAL ISSUES BEFORE THE COURT

The principal issues before the Court relate to the

impact of Section 5 of the Voting Rights Act of 1965,

2

as amended (the ‘‘Act’’), upon a political subdivision

that has proved the absence of any discriminatory pur-

pose in the adoption of certain electoral provisions and

annexations. A case of this nature has never been be-

fore the Court.

The Appellees have made the *‘ primary submission,”

Appellees’ Brief at 51, that Congress may prohibit

electoral changes whether or not such changes are, in

themselves, constitutional violations. In this regard,

Judge MeGowan noted in the opinion of the District

Court that Rome’s argument is ‘‘squarely presented

for decision on the facts of this case.” Juris. State. at

32b n.69. Thus, this ease provides an opportunity for

determination of the scope of congressional power un-

der Section 2 of the Fifteenth Amendment.

II.

RECURRING POSITIONS OF APPELLEES

1. Construction of the Court’s Prior Decisions. Ap- °

pellees have indicated, both directly and by inference,

that the issues before this Court are matters of well

settled law. Appellees’ Brief at 2, 18, 24, 26-27, 49-50,

52-55. In contrast to Appellees’ assertion that these

matters are “clear and well established,”’ id. at 27, and

that there exists a ‘‘settled and well-reasoned body of

case law interpreting Section 2 of the Fifteenth Amend-

ment and the Voting Rights Act,”’ id. at 50, Mr. Justice

Marshall, dissenting in Beer v. United States, 425

U.S. 130, 148 n.4 (1976), observed:

The Court’s decisions relating to the relevance of

purpose and/or effeet analysis in testing the con-

stitutionality of legislative enactments are some-

what less than a seamless web. The possibie theore-

tical approaches are three: (1) purpose alone is the

3

test of unconstitutionality, and effect is irrelevant,

or relevant only insofar as it sheds light on pur-

pose; (2) effect alone is the test, and purpose is

irrelevant; and (3) purpose or effect, either alone

or in combination, is sufficient to show unconstitu-

tionality. At various times in recent years the

Court has seemed to adopt each of these ap-

proaches.

The court below indicated that ‘‘[w]hether the Fif-

teenth Amendment reaches only purposeful diserimina-

tion is an important and unsettled constitutional ques-

tion.” Juris. State. at 33b. Demonstrative of the un-

settled nature of these issues are the constructions by

Appellants and Appellees of this Court’s decisions in

Oregon v. Mitchell, 400 U.S. 112 (1970) and Katzen-

bach v. Morgan, 384 U.S. 641 (1966). Compare Appel-

lants’ Brief at 61-66 with Appellees’ Brief at 54-57.

Moreover, Appellees’ suggestion that the construction

of Section 5 is well settled is incorrect because this

Court has not previously considered the application of

Section 5 to a political subdivision found innocent of

purposeful discrimination. Hence, the cases in Appel-

lees’ Brief at 26-27, all decided before this Court’s de-

cision in Washington v. Davis, 426 U.S. 229 (1976),

are distinguishable.

2. Scope of Appellants’ Constitutional Attack. Ap-

pellees appear to suggest that Appellants challenge the

constitutionality of the entire Act. Appellees’ Brief at

22, 49-50, 66. To the contrary, Appellants question the

construction and constitutionality of Section 5 of the

Act in the context of a political subdivision found inno-

cent of any purposeful discrimination with respect to its

political affairs. App. at 171; Appellants’ Brief at 4-5;

Juris. State. at 5.

4

3. The “‘Freezing”’ of Rome’s Elections. Appellees

urge that the District Court correctly found that the

freezing of elections in the City of Rome is ‘‘self-im-

posed.’’ Appellees’ Brief at 67, 68 n.38. Appellees’ ar-

gument is based upon (1) disregard for this Court’s

interpretation of Section 5 at the time of enactment of

the changes here at issue, Appellants’ Brief at 16; (2)

failure to acknowledge that the electoral changes here

at issue were precleared by virtue of the preclearance

of the Georgia Municipal Election Code in 1968, id. at

90-93; and (3) disregard of the fact that Rome’s

changes were validly enacted laws of the State of Geor-

gia. App. at 82-85; Appellants’ Brief at 84 n.75.

Specifically, Appellees urge that the portion of the

political change which established the number of rep-

resentatives from each of the three ‘‘new’’ wards could

have been utilized together with the ‘‘old’’ plurality

vote requirement; however, provisions for number of

representatives to be elected from each ward are con-

tained in the very laws that have not been precleared

by the Attorney General. Juris. State. at 6e-7e, 10e-Lle.

The questionable validity of elections held in such a

chaotie circumstance is apparent. Appellees also assert,

without citation, that the ‘‘new’’ three-ward system

provided for three commissioners from each ward. This

is erroneous: the law reducing the number of wards

did not establish the number of commissioners. App.

at 62, 67-68, 209-210 n.6.

Appellees correctly acknowledge that city officials

were obligated to conduct elections according to Geor-

gia law. They fail to recognize, however, that Rome’s

compliance with precleared provisions of the Georgia

Municipal Eleetion Code fulfilled such obligation.

5

In any event, the Distriet Court found that in the

circumstances elections are ‘‘technieally infeasible.”

Juris. State. at 42b-43b. See also Berry y. Doles, 438

U.S. 190, 197 1.1 (1978) (Powell, J., concurring) ; Beer

v. United States, 425 U.S. 130, 188 (1976); Perkins v.

Matthews, 400 U.S. 379, 395-96 (1971); Allen v. State

Board of Elections, 399 U.S. 544, 572 (1969).

4. Proportional Representation. Appellees assume

throughout their argument that Section 5 of the Act

requires the Attorney General to structure the political

system of a municipality in order to insure propor-

tional racial representation. This attitude is demon-

strated by Appellees’ analysis of the unsuccessful

campaign of Reverend Hill for the Rome Board of

Education in 1970, Appellees’ Brief at 7-8. Appellees

assume that the inexorable political choice of the black

citizens of Rome would be the election of a black rep-

resentative. See Appellees’ Brief at 11, 32-33, 35.

Appellees’ position is contrary to law which does

appear to be well settled: ‘‘[I]t is not enough [to sus-

tain constitutional claims] that the racial group al-

legedly discriminated against has not had legislative

seats in proportion to its voting potential.’’ White v.

Regester, 412 U.S. 755, 765-66 (1973). This constitu-

tional standard is equally applicable to the operation

of Section 5. Mr, Justice Stewart, writing for the Court

in Beer v. United States, 425 U.S. 130, 136 n.8 (1976),

observed: ‘‘This Court has, of course, rejected the

proposition that members of a minority group have a

federal right to be represented in legislative bodies in

proportion to their number in the general population.

See Whitcomb v. Chavis, 403 U.S. 125... .”

6

The position of the Appellees, and the effect of the

District Court’s judgment, is that a state or munici-

pality seeking to effect salutory political changes—for

example, annexations to provide needed services or to

solve a financial exigeney—is prohibited from doing so

unless identifiable racial groups are assured propor-

tional representation by group members. Such a posi-

tion is contrary to the Fifteenth Amendment, the lan-

guage of Section 5, and prior decisions.

Appellees also make certain value judgments with

respect to the system of governance chosen by the peo-

ple of Rome. For example, Appellees assert that the

Assistant Attorney General indicated to Rome that if

it undertook to use a plurality win method of election

or ‘fairly’? drawn ‘‘single-member distriets,’’ he would

reconsider his position. Appellees’ Brief at 12 n.15.

Appellees also undertake to snggest, in detail, al-

ternative political structures for the City of Rome.

Appellees’ Brief at 41-42. The views of the Depart-

ment of Justice as to the appropriate structure for

Rome’s government have been advanced only by the

Department of Justice. No citizen of Rome has in-

stituted an action questioning the propriety of the

changes or sought to intervene in this action. Also, the

majority vote requirement, which Appellees find par-

ticularly objectionable, Appellees’ Brief at 17, is iden-

tical to the majority vote feature precleared as part

of the 1968 Georgia Municipal Election Code and the

1964 Georgia Election Code.

A political orthodoxy as to the ‘‘proper”’ structure of

state and local government is being imposed by the

Attorney General. The imposition of such a policy,

where there is no constitutional violation, represents

7

an attempt to ‘‘restructure local governmental enti-

ties’’ and ‘‘to mandate a particular method or structure

of state or local’? governmental affairs that was indi-

eated to be an abrogation of the principles of Fed-

eralism in Milliken v. Bradley, 433 U.S. 267, 291 (1977).

See App. at 178.

5. The Absence of Racial Animus. Appellees ac-

knowledge the finding of the District Court that the

political changes and annexations here at issue were

enacted without any racially discriminatory purpose.

Appellees’ Brief at 17. Nevertheless, Appellees imply

that racial animus exists in the political affairs of

Rome.

Rome’s political changes, utilized by many other

municipal governments, and Rome’s annexations, made

as a result of the natural growth and development of

the City, relate to the ‘‘right to vote’’ only by reason of

Appellees’ belief that racial groups have a right to

achieve proportional representation. There is no racial

discrimination in Rome in the conduet of voter registra-

tion or elections. The uncontradicted evidence indicates

that no test or device, including a literacy test, has been

utilized in Rome for at least forty years. Juris. State.

at 6b and footnotes contained therein. Moreover, the

District Court made specific findings with respect to

the absence of any racial discrimination in the elec-

toral processes of Rome and the conduct of city gov-

ernment. Appellants’ Brief at 6-7. Appellees never-

theless argue that the effect of the present electoral

changes and annexations ‘‘would be to abridge the

right to vote on account of race or color.” Appellees’

Brief at 24.

8

Similarly, Appellees’ treatment of Rome’s annexa-

tions implies racial animus. According to Appellees,

individual consideration of each annexation would per-

mit ‘‘substantial diminutions of black voting strength.”’

Appellees’ Brief at 37. The necessary implication of

this argument is that Rome, and similar subdivisions,

might undertake to discriminate officially through

piecemeal annexations. Such a supposition is unsup-

ported by the record or reason.

Appellees’ attitude is also demonstrated by their

remarkable use of the ‘‘white primary’’ cases, Smith

v. Allwright, 321 U.S. 649 (1944) and Terry v. Adams,

345 U.S. 461 (1953). “The changes at issue here

enhance the power of purposeful private discrimina-

tion to exclude blacks from effective participation in

the electoral process.’’ Appellees’ Brief at 60. There is

no evidence in the record to suggest the existence of any

private discrimination in Rome to exclude blacks from

effective participation in electoral processes, and, in-

deed, the findings of the court below are expressly con-

trary to such a supposition. Appellants’ Brief at 6-7.

In order for these cases to have any applicability to

the changes here at issue, there must be an assumption

that such private discrimination exists in connection

with a private organization, system, or practice that is

an agent of the City. There has been no finding of any

such agency relationship. The employment of such

authorities by the Appellees represents a categorical

assumption that the white citizens of Rome are guilty

of purposeful racial discrimination because they reside

in one of the States covered by the Act, notwithstand-

ing clear evidence to the contrary.

9

III.

THE CONSTRUCTION OF SECTION 5 OF THE ACT

Appellees have eschewed the analysis of the District

Court that Congress established in Section 5 an *‘irre-

buttable presumption’’ of ‘purpose’? from ‘‘effect.”’

Appellees’ Brief at 57-58 1.33. In this regard, Appel-

lants again submit that the language of Section 5, to-

gether with the legislative history of the inclusion of

the ‘‘purpose” standard and the appropriate constitu-

tional tests, requires a construction of Section 5 that

gives independent significance to the ‘‘purpose’’ stand-

ard. ‘‘Purpose”’ should first be analyzed and only if

the ‘‘purpose”’ of the changes at issue is unclear or

unlawful should the ‘‘effect’’ of the changes be re-

viewed.

Appellants’ proposed construction is said to be ‘‘un-

sound” beeause it ignores the negative nature of the

Section 5 language. Appellees’ Brief at 25 n.18. The

negative nature of Section 5 merely establishes that the

burden of proving the constitutionality of the changes

is placed upon the submitting jurisdiction.

Appellees contend that the use of the conjunction

“and”? in Section 5 requires that preclearance plain-

tiffs prove not only an absence of discriminatory in-

tent, but also an absence of discriminatory effect, before

changes or annexations may be implemented. It is sug-

gested that the alternative conjunction ‘‘or’’ would

have been used if the construction proposed by Appel-

lants had been intended. The use of ‘‘and,’’ however,

sets forth the appropriate constitutional standard. By

including a requirement of purpose after the initial

drafting of Section 5, Appellants’ Brief at 26-27, it

appears that an effort was made to parallel the lan-

guage of Section 5 to the constitutional test.

10

The original version of Section 5 (Section 8 of S.

1564 and H.R. 6400) required a showing only of the

absence of ‘‘effect.’’ It is unlikely that, in the process

of amending the more stringent original proposals, the

members of Congress sought to restrict the preclear-

ance standard by adding a requirement of ‘‘purpose.”’

It is more likely that ‘t purpose” was included because

changes were to be precleared if they met the reeog-

nized constitutional standard. See South Carolina Vv.

Katzenbach, 383 U.S. at 334.

Appellees suggest that because the opinion in City

of Richmond vy. United States, 422 U.S. 358 (1975),

looked first to the effeet of the proposed annexations

and then to their purpose, the Court ‘‘expressly recog-

nized that Section 5 imposes a dual requirement for

preclearance of voting changes... .’’ Appellees’ Brief at

26. The Court found that the black population of Rich-

mond was reduced from fifty-two percent to forty-two

percent, id. at 371-72, but did not find that this impact

was an ‘‘effeet prohibited by § 5,’’ td. at 372. In holding

that an ‘‘effeet prohibited by Section 5’ did not exist

in Richmond and remanding for further examination

of the ‘‘purpose’’ issue, this Court certainly did not

hold that Congress proscribed, in Section 5, political

changes and annexations having an impact but not en-

acted with discriminatory purpose. Indeed, Appellants’

proposed construction of Section 5 is consistent with

this holding, because Appellants argue that ‘‘purpose,”’

not “effect,” is the essential element of the standard.

The Court's remand also seems to suggest that **pur-

pose”? is essential.

City of Richmond demonstrates that Rome’s elec-

toral changes and annexations do not have the type

of ‘‘effect’’ proscribed by Section 5. A proscribed effect

pan st

11

was not found in Richmond even in the face of findings

that the black citizens of Richmond would ‘‘eommand

fewer seats on the city council... [and that] the an-

nexation will have effected a decline in the Negroes’

relative influence in the ecity.’’ 422 U.S. at 37 for-

tiort, no proscribed ‘‘effect” exists in Rome because

the District Court found tinat black citizens ‘4ften hold

the balance of power in Rome elections’’ and\that the

black community ‘‘if it chooses to vote as a group, ean

probably determine the outcome of many if not most

contests.’’ Juris. State. at 55b. 8b.

Appellants have established, under the criteria ap-

proved by this Court in Zimmer v. McKeithen, 485

F, 2d 1297 (Sth Cir. 1973), aff’d sub nom. East Carroll

Parish School Board v. Marshall, 424 U.S. 636 (1976),

that there has been no dilution of the vote of the black

citizens in Rome by reason of the electoral changes and

annexations. Thus, under City of Richmond, there bas

been no ‘‘effeet prohibited by § 5.” Appellees assert,

@ppellees’ Brief at 33-34, that Rome omitted dis-

cussion of the ‘“‘enhancing factors’’ of Zimmer, and,

thus, Appellees assume the existence of Zimmer’s pri-

mary factors, directly contrary to the findings of the

court below. In any event, there is no ‘‘anti-single shot”

voting provision; there has been no showing that “‘large

districts’ exist in Rome, and Rome’s ward configura-

tion was precleared by the Attorney General. More-

over, if the residency requirement objected to by the

Attorney General had been precleared, there would not

be a “‘lack of provision for at-large candidates running

from particular geographic subdistricts’’ with respect

both to the Board of Education and the City Commis-

sion. The suggestion by the Appellees that a majority

vote requirement is a primary Zimmer factor is con-

12

trary to the holding in Zimmer. Moreover, such a ma-

jority vote requirement has been precleared by the

Attorney General with respect to the 1968 Georgia

Municipal Election Code and the 1964 Georgia Elee-

tion Code.

Appellees have suggested a third interpretation of

the effect of Rome’s annexations upon the voting power

of black citizens. Appellees’ Brief at 38 n.26. Compare

Juris. State. at 6b with Juris. State. at 52b-53b. The

result of Appellees’ calculations is an alleged reduction

of the relative percentage of black voters by one per-

cent and an increase in the relative percentage of white

voters by one percent, ‘‘resulting in a total difference

of two percent.’’ The findings of the court below, how-

ever, indicate that there was an increase in the relative

percentage of black voters, Juris. State. at 6b; Appel-

lants’ Brief at 14. Under any of the calculations of

alleged ‘‘effeet’’ made in this ease, there has not even

been a demonstration of the type of impact found in

City of Richmond not to constitute a proscribed

‘“offect’’. Sec Brief Amicus Curiae Pacific Legal Foun-

dation In Support of Appellant City of Rome at 4-5.

All of Appellees’ arguments regarding the existence

of a prohibited effect presume the existence of racial

bloe voting in Rome even though Appellees admit that

no statistical demonstration of bloe voting can be made.

Appellees’ Brief at 8. In the absence of such proof,

Appellees rely on a ‘“‘prediction’’ based upon Floyd

County voting data from a single statewide Democratic

primary in 1968 between the former governor and

three-term United States Senator Herman Talmadge

and Maynard Jackson, who was making his first bid

for public office. In view of the long incumbency of

Herman Talmadge, the ‘‘prediction” of bloe voting is

13

without probative value, and the findings of the Dis-

trict Court are clearly erroneous. See App. at 224-288.

IV.

THE CONSTRUCTION OF SECTION 4 OF THE ACT

Appellees have failed to respond to Appellants’

structural analysis of Section 4 and have failed, spe-

cifically, to respond to the common reference in See-

tions 5 and 4(a) to Section 4(b). Appellees rely prin-

cipally upon legislative history indicating that political

subdivisions of a covered state are not afforded an

opportunity to bailout under Section 4(a). Under the

construction advanced by Appellees, United States v.

Board of Commissioners (cited as ‘‘Sheffield’’), 435

U.S. 110 (1978), creates a circumstance in which politi-

cal subdivisions are required to preclear changes but

are not allowed to exempt themselves from the Act.

Such an inequity is cured by Appellants’ proposed

construction.

Appellants first note that the legislative history re-

lied upon by Appellees was authored at a time when a

common textual reference between Sections 4(a) and

5 did not exist in the Act. The original bailout pro-

posal, Section 3(¢c) of S. 1564 and Section 3(¢) of H.R.

6400, provided that bailout suits could be instituted

only by states ‘‘with respect to which determinations

have been made under Section (a) [the coverage form-

ula]”’ or ‘‘any political subdivision with respect to

which such determinations have been made as a sep-

arate unit.” The original preclearance provision, Sec-

tion 8 of S. 1564 and Section 8 of H.R. 6400, required

preclearance by a ‘‘State or political subdivision for

which determinations are in effect under Section 3(a).”’

Subsequently, the physical structure of the Act was

4

A

|

’

J

14

altered to provide a common reference to Section 4(b)

in the bailout provision of Section 4(a) and in Sec-

tion 5. While there is no legislative evidence to indi-

eate that this change was made in order to allow politi-

eal subdivisions within covered jurisdictions to bailout,

this Court’s opinion in Sheffield, construing Sections

4(b) and 5, established this proposition.

In light of the plain meaning given to the words of |

the Act in Sheffield, the legislative material referred fo

by Appellees should be disregarded. See Appella

); Pennsylvania RR. v. International Coal

'o., 230 U.S. 184, 199 (1912); St. Louis, I.M. &

gents of the University of California v. Bakke, 438

/ US. 265, 417-418 (1978) (Burcer, C. J., Stewart, ,

/ Renneuist, J., and Srevens, J., coneurring in part

and dissenting in part); Greyhound Corp. v. Mt. Hood

Stages, Inc., 437 U.S. 322, 330-331 (1978); Santa Fe

Tndustries, Ine. v. Green, 430 U.S. 462, 472-74 (1977) ;

Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201 (1976) ;

Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723,

756 (1975) ; United States v. Sisson, 399 U.S. 267, 297-

98 (1970); Richards v. United States, 369 U.S. 1, 9-10

eae

r

iy

15 —~ff

(1962); United States v. Oregon, 366 U.S. 643, 648

(1961); United States v. Public Utility Commission,

345 U.S. 295, 314-16 (1953) ; United States v. Great N.

Ry. Co., 343 U.S. 562, 575 (1952) ; Gemsco, Inc. v. Wall-

ing, 324 U.S. 244, 260-66 (1945) ; United States v. Mis-

sourt Pac. R. R., 278 U.S. 269, 278 (1929); United

States v. Lerington, 232 U.S. 599, 409-411 (1914).

Appellees also suggest that if the construction of

‘Sections 4(a), 4(b), and 5 proposed by Appellants is

accepted, afloodgate of litigation will be opened upon

the United States District Court for the District of

Columbia. Since Appellees acknowledge the ‘“‘burden”’

of bailout litigation, Appellees’ Brief at 46, their sur-

vey is not persuasive that a flood will be forthcoming.

Appellees’ survey does demonstrate the pervasive im-

pact of Section 5 and the extent to which it constitutes

an intrusion upon the functions of many political sub-

divisions. The availability of bailout has constitu-

tional significance, South Carolina v. Katzenbach, 383

U.S. 301, 331 (1966), and thus its availability to politi-

eal subdivisions innocent of discrimination in voting

practices should not be foreclosed because of perceived

judicial inconvenience.

Appellees argue, for the first time, that Rome, even

if allowed to bailout, could not effect the political

changes and annexations here at issue, because such

legislation was enacted by the Gecrgia Genersi Assem-

bly. Appellees’ Brief at 48 n.30. This suggestion over-

looks Section 51.8 of the Attorney General’s regula-

tions, 28 C.F.R. § 51.8, which sets forth the parties

responsible for making Section 5 submissions. See Ap-

pellants’ Brief at 5b-6b. ‘‘Changes affecting voting

shall be submitted by the chief legal officer or other

appropriate official of the State or political subdivision

16

in which the change is proposed to be effective.” (em-

phasis added) Moreover, as the unitalicized portion of

the quotation from Section 5 set forth in Appeliees’

Brief at note 30 indicates, Section 5 is addressed to

jurisdictions that ‘‘seek to administer’’ voting changes.

Vv.

THE CONSTITUTIONAL LIMITS UPON THE POWER OF

CONGRESS WITH RESPECT TO SECTION 5 OF THE ACT

Appellees seem to concede that only intentional acts

violate Section One of the Fifteenth Amendment. Ap-

pellees’ Brief at 59. Thus, the issue now before the

Court is whether Congress may, through Section 5 of

the Act, proseribe electoral changes and annexations

which have been found to be enacted without a diserim-

inatory purpose but which may have a differential im-

pact upon identifiable racial groups.

Initially, Appellants reiterate that this issue was not

decided by South Carolina v. Katzenbach, 383 U.S. 301

(1966), which dealt with purposeful racial discrimina-

tion. Moreover, Appellants have not sought to resubmit

the argument rejected in South Carolina v. Katzenbach

that Section Two of the Amendment only prohibits

practices which have been judicially determined to be

violative of Section One. Appellants’ Brief at 60. Con-

gressional determinations of the existence of constitu-

tional violations are appropriate, so long as they are

made within the framework of the Section One require-

ment of purposeful discrimination.

Similarly, Appellants have not challenged the cov-

erage formula of the Act. See Appellees’ Brief at 53-

54. Appellants urge, rather, that the standard to be

applied by the Attorney General and the United States

17

District Court for the District of Columbia, in consid-

ering the preclearance of changes submitted by a juris-

diction within a covered State, can be no broader than

the standards of the Constitution itself, and to the ex-

tent that Congress has sought to establish a broader,

non-purposeful standard, it has acted without consti-

tutional power.

The failure of this Court in South Carolina vy. Kat-

zenbach to overrule Lassiter v. Northampton County

Board of Elections, 360 U.S. 45 (1959), is not disposi-

tive of Appellants’ constitutional claims. Lassiter held

that literacy tests are not per se violations of the Fif-

teenth Amendment. However, Lassiter dealt with a

literacy test, fair on its face, as to which no discrimi-

natory application had been charged in the record be-

fore the Court. 360 U.S. at 53. The Court, therefore,

had no facts to support a finding of a violation of Sec-

tion One of the Amendment. South Carolina v. Kat-

zenbach, on the other hand, dealt with a statute based

upon exhaustive congressional findings that literacy

tests within the covered jurisdictions violated Section

One of the Fifteenth Amendment because they were

used as instruments of intentional racial discrimina-

tion. Although a prior judicial determination is not

required, Congress may prohibit only violations of Sec-

tion One of the Amendment.

The opinions in Oregon vy. Mitchell, 400 U.S. 112

(1970), cited by Appellees are consistent with Appel-

lants’ position. Each Justice upheld the nationwide ban

on literacy tests because the use of such tests denied the

vote to black persons educated in dual school systems

in violation of the Fourteenth Amendment. It is ap-

propriate to ban literacy tests because of the nexus be-

tween the effects of unconstitutional education and the

18

failure to pass literacy tests. The changes here at issue

have no such nexus with previous constitutional viola-

tions.

VI.

THE IMPACT OF SECTION 5 OF THE ACT UPON BASIC

CONCEPTS OF FEDERALISM

In questioning the continuing constitutionality of

Section 5 of the Act, Appellants ask this Court neither

to ‘‘decide the lifespan of the Voting Rights Act,”’

Appellees’ Brief at 66, nor to question its ‘‘usefulness.”’

Id. More fundamentally, Appellants maintain that this

Court’s conditional constitutional approval of Section

5 was based upon emergency conditions in the covered

jurisdictions which no longer exist and did not exist in

1975 when Section 5 was reenacted. In the absence of

such compelling justifications, Section 5 must be struck

down as violative of basie principles of Federalism

and rights protected by the First, Fifth, Ninth, and

Tenth Amendments.

Appellees have misconstrued Appellants’ reliance

upon National League of Cities v. Usery, 426 U.S. 833

(1976), which establishes affirmative limitations upon

the power of Congress when it acts with respect to

the States. Appellants recognize that the power of

Congress under the Commerce Clause and under the

Reconstruction Amendments is quite different. The

Fourteenth and Fifteenth Amendments ‘‘directly pro-

hibit certain activities by the States,” Appellees’ Brief

at 65; however, National League of Cities v. Usery

recognizes the existence of affirmative protections em-

bodied in principles of Federalism which cannot be

overridden when a political subdivision has not en-

gaged in constitutionally prohibited activities. Fitz-

patrick v. Bitzer, 427 U.S. 445 (1976), is not incon-

19

sistent with this view. Where there has been, as in the

present case, no violation of the normative terms of the

Fifteenth Amendment, congressional action that evis-

cerates state enactments, protected by Article IV, Sec-

tion 4 and the Tenth Amendment, is unconstitutional.

Moreover, Appellees’ argument that Section 5 is a per-

missible ‘‘prophylactie rule,’’ Appellees’ Brief at 21,

is particularly offensive to the principles of Federalism

and contrary to this Court’s holding in Rizzo v. Goode,

423 U.S. 362, 378 (1976). While the structure of Rome’s

government may not comport with the views of the

Department of Justice, it is nevertheless protected by

the principles of Federalism, so long as it does not vio-

late the Fifteenth Amendment.

VII.

PRECLEARANCE BY THE ATTORNEY GENERAL

Appellees’ argument that the preclearance of the

Georgia Municipal Election Code did not constitute

preclearance of certain identical procedures previously

effected by Rome overlooks the Attorney General’s

regulations. Section 51.8 specifically provides: ‘‘When

one or more counties within a State will be affected,

the State may submit a change affecting voting on be-

half of the covered county or counties.’’ 28 C.F.R.

§ 51.8; Appellants’ Brief at 6b. Although acting with-

out the benefit of such regulations in 1968, the Attor-

ney General of the State of Georgia submitted the

Municipal Election Code in this fashion. App. at 97.

Appellees now argue that this submission was ineffec-

tive, as to the City of Rome, presumably because its

Charter was not included with the Georgia submis-

sion. Appellants disagree with Appellees’ ‘‘floodgates”

approach to Section 4(a), but it should be noted that

20

the construction of 28 C.F.R. § 51.8 advanced by Ap-

pellees will require state attorneys general to submit

individual legislative material for each political sub-

unit within their states. In the case of Georgia alone,

the submission of material for each of 530 incorporated

municipalities and, at least, 347 subsidiary governmen-

tal bodies, would be required. Appellees’ Brief at la.

Appellees also maintain that without a review of

Rome’s Charter or some other form of individual sub-

mission, the Attorney General was unable to assess the

effect of the 1968 Municipal Election Code upon Rome’s

electoral system. The logical extension of this position

is that no assessment of ‘‘effect’’ could have been made

with respect to the 1968 Municipal Election Code. This

Code applied only to municipal elections conducted

within the State of Georgia, and Georgia’s submission

contained no City Charters or other materials with

respect to specific municipalities. However, the Attor-

ney General did question the impact of the 1968 Muni-

cipal Election Code upon certain municipalities, other

than Rome. App. at 54. See Appellants’ Brief at 92-93.

The Attorney General’s failure to take similar actions

with respect to Rome has never been explained by

Appellees.

Appellees assert that the Attorney General ‘‘reason-

ably’’ analogized Rome’s voluntary supplement of its

request for reconsideration to an incomplete initial sub-

mission. Appellants disagree with the propriety of such

an analogy, but, in any event, the entire structure of

the Attorney General’s regulations is inconsistent with

such a construction. See 28 C.F.R. §§ 51.3(d), 51.10(a),

51.18(a), and 51.24 (1978). The regulations specifically

set forth the circumstances during which the time for

response to a request for reconsideration will be tolled

21

during the reconsideration process. Having established

the time limits for responses to reconsideration, in-

cluding extensions of such time limits, the Attorney

General should not now be heard to claim that unwrit-

ten interpretations of that time period exist. Such a

construction is inherently unréasonable; it violates the

principle of expressio unis est exclusio alterius and

sound principles of administrative law.

Appellees also argue that if the Attorney General

failed to respond properly to Appellants’ request for

reconsideration, such a failure had no effect. Appellees

are reluctant to analogize the failure to respond to a

reconsideration petition to a failure to respond in a

timely manner to an initial submission, although they

readily analogize a supplementary submission to an in-

complete initial submission, The regulations do not

state that an objection will be deemed withdrawn if the

Attorney General fails to act on a request for recon-

sideration within sixty days. However, 28 C.F.R. § 51.3

(d) indicates that the Attorney General ‘‘shall decide”’

within sixty days of receipt of a request for reconsid-

eration. Similarly, 28 C.F.R. § 51.24 provides that the

Attorney General ‘‘shall notify’’ a submitting author-

ity within sixty days of a request for reconsideration.

Both sections impose mandatory requirements upon the

Attorney General. If he wishes to continue his objec-

tion, he must ‘‘decide’’ and ‘‘notify’’ the submitting

jurisdiction. Appellees argue that the Attorney General

may continue an objection either by ‘‘deciding” and

‘‘notifying’’ or by doing nothing. As the court below

noted, the language of Section 51.3(d) is ‘‘mandatory

rather than permissive and... it tracks the time re-

quirement for responses to initial submissions, which

is statutorily binding on the Attorney General.’’ Juris.

22

State. at 27b n.62. The court below suggests that the

time limit is ‘‘binding,’’ rather than ‘‘merely ad-

visory.’’ Juris. State. at 27b-28b n.63.

Finally, Appellees indicate that a failure by the

Attorney General to respond to a request for recon-

sideration within the required time ‘‘might” entitle the

petitioning authority to seek a court order requiring

prompt consideration. Morris v. Gressette, 432 U.S.

491 (1977), is cited as authority, to some extent, to sup-

port this suggestion. However, the court below noted

that ‘‘under the teachings of Briscoe v. Bell, 432 U.S.

404 (1977), and Morris v. Gressette, 432 U.S. 491

(1977), we are unwilling to second-guess the Attorney

General on an issue implicating his unreviewable judg-

ment of the merits of a Section 5 application.’”’ Juris.

State. at 28b n.64. Thus, this novel additional step in

the preclearance process is unavailable.

23

VIII.

SUMMARY

The Appellees’ position with respect to the proper

construction of Section 5 of the Act and the power of

Congress under Section Two of the Fifteenth Amend-

ment has failed to recognize the singular nature of the

present case. This is the first case to come before this

Court in which a political subdivision seeks to admin-

ister political changes and effect annexations which

have been found to meet the ‘‘purpose’’ standard of

Section 5 of the Act and the Constitution.

The Attorney General has imposed upon Rome, and

approximately 7,000 other political subdivisions, cer-

tain categorical conceptions arising from the unique

circumstances that prompted the passage of the Act in

1965. The imposition of these conceptions, together with

the policies formulated by his office with respect to the

proper structure of local government, threatens, in

words borrowed from Professor Tribe, to ‘‘short-cir-

cuit the pluralist processes of interest accommodation

usually structuring legislative decisionmaking.”’ L.

Tripe, A TREATISE ON AMERICAN CoNSTITUTIONAL LAW

288 (1978). The imposition of such a political ortho-

doxy is not constitutionally permissible in the cireum-

stances of this case.

24

IX.

CONCLUSION

The judgments of the District Court dismissing Ap-

pellants’ case and granting Appellees’ Motion for Sum-

mary Judgment should be reversed. The City of Rome

should be exempted from the Act, or Section 5 of the

Act should be declared unconstitutional. Absent either

such holding, Appellants pray that the electoral

changes and annexations at issue be declared to be

effective, either pursuant to the terms of Section 5 or

by reason of the actions of the Attorney General in this

ease,

Respectfully submitted,

Rospert M. Brinson

City Attorney of Rome, Georgia

Brinson, Askew & Berry

200 North Fifth Avenue

Rome, Georgia 30161

(404) 291-8853

WILLIAM E. SUMNER

Burron B. GOLpsrein, JR.

BARBARA A. SPECK

Long, Aldridge, Heiner, Stevens

& Sumner

1900 Rhodes-Haverty Building

Atlanta, Georgia 30303

JoserpH W. Dorn

Kilpatrick & Cody

2033 K Street, N.W.

Suite 400

Washington, D.C. 20006

Counsel for Appellants

.—~