Appellants Reply Brief — Burton v. Hobbie

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

WILLIAM L BURTON, et al.

Appellants,

vs.

WALKER HOBBIE, IR. etc., et al.,

Appellees.

On Appeal from the United States District Court

for the Middle District of Alabama Northern Division

(three-judge panel)

BRIEF OPPOSING MOTION TO DISMISS OR AFFIRM

James U. Blacksher Edward Still

Larry Menefee Suite 400 Commerce Center

P. O. Box 1051 2027 Ist Avenue North

Mobile, AL 36633 Birmingham, AL 35203

205/322-6631

COUNSEL OF RECORD

Frank R. Parker Solomon Seay

Lawyers’ Committee for Gray Seay & Langford

Civil Rights Under Law 352 Dexter Ave.

738 15th Street NW, Suite 520 Montgomery, AL 36104

Washington, DC 20005

Be

1

i

TABLE OF CITATIONS

Beer v. United States, 374 F.Supp. 357 (D. D.C. 1974) — 4

Berry v. Doles, 438 U.S. 190 (1978) 5

Busbee v. Smith, F Supp . (D. D.C.

May 24, 1982) 4

v. Lumberton City Bd. of Education,

102 S.Ct. 494 (1981) 1

Charlton County Bd. of Education v. United States,

459 F.Supp. 530 (D. D.C. 1978) a4

Coalition to Preserve Houston v. Interim Board

of Trustees of the Westheimer Independent School

District, 494 F Supp. 738 (S.D. Tex. 1980) 0... 4

Georgia v. United States, 411 U.S. 526 ü 5 5

He v. City of Dallas, 469 F.Supp. 739

Kp. Ta. l — 34,7

Herron v. Koch, 523 F Supp. 167 (S. D. N.Y. 1981) — . 7

Holt v. 2 of Richmond, 406 U.S. 903 (1975

3 ounty v. United States, 449 F.Supp.

(D. D.C. 1978) , 4-5

Matthews v. ee ere

Comm'rs, 450 F.Supp. 755 (N.D. Miss. 1979 — 4

McDaniel v. Sanchez, 452 U.S. 130 (1981) 5-6

Moore v. LeFlore C Bd. of Election Comm'rs,

351 F.Supp. 848 (N.D. Miss. 1971) 4-5

Moore v. Ogilvie, 394 U.S. 814 (1969) 3

Perkins v. Matthews, 400 U.S. 379 (1971) 5

Pitts v. Carter, 380 F.Supp. 4 (N. D. Ga. 1974) 4

Sosna v. Iowa, 419 U.S. 393 (1975) . 8

Terrazas v. Clements, 537 F.Supp. 514 (N.D. Tex. 1982) _46

United States v. Board of Commissioners of Colleton

County, 509 F.Supp. 1329 (D. S. C. 19817 — 414

"Com e en ith

County, 429 U.S. 652 (1 . 6

United States v. Hale County Commission, 425 F.Supp.

433 (S.D. la. 1976), aff'd, 430 U.S. 924 (1977) 4

White v. County Bd. of Education, 431

F.Supp. 91 Ga. 1977) , aff'd, 439 U.S. 32 (1978) 4-5

Wilson v. North Carolina State Bd. of Elections,

$17 F.Supp. 1299 (M.D. N.C. 1970) 5

3 *

No. 82-360

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

WILLIAM L. BURTON, et al.,

Appeliants,

vs.

WALKER HOBBIE, IR., etc., et al.,

Appellees.

On Appeal from the United States District Court

for the Middle District of Alabama Northern Division

(three-judge panel)

BRIEF OPPOSING MOTION TO DISMISS OR AFFIRM

Appellants William L. Burton, et al., respectfully pray that

this Court will deny the Appellees’ motion to dismiss or affirm

and that it will note probable jurisdiction in this appeal.

THIS COURT SHOULD NOTE PROBABLE JURISDIC-

TION IN ORDER TO RESOLVE THE CONFLICT

PLANS THAT VIOLATE SECTION 5 OF THE

VOTING RIGHTS ACT

Appellees correctly point out that since the drafting and sub-

mission of the Jurisdictional Statement, primary elections for

the Alabama Legislature have been concluded and the District

Court has indicated its intention to order special legislative

elections in the Fall of 1983 under a new reapportionment plan.

Motion to Dismiss or Affirm at 8 and n.12. Only 13 of the 35

Democratic Senate nominees face Republican opposition in the

November 2, 1982, general election, and only 30 of the 105

Democratic nominees for House Seats have opposition. Three

black Senate candidates prevailed in the Democratic primaries,

one of whom has Republican opposition in November, and

seventeen black candidates for House Seats won in the pri-

maries, only one of whom faces opposition in the general elec-

tion. If neither of the black candidates is defeated in the gen-

eral election, under the interim reapportionment plan approved

by the District Court blacks will have realized a gain of four

seats in the House of Representatives but no gain or loss of

seats in the Senate.'

Under these circumstances, the posture of this appeal is more

in the nature of a challenge to elections already held than it is

a petition to enjoin impending elections. This Court's refusal

to stay the District Court's interim plan and to postpone the

primary elections has substantially changed the equities govern-

ing appropriate relief in the event Appellants are successful in

this appeal. Appellants still pray that this Court will vacate the

District Court’s interim plan order and remand the case for the

purpose of implementing as soon as practicable a plan which

does not adopt parts of the State's plan to which the Attorney

General has objected. However, Appellants do not now seek a

stay of the November 2, 1982, general election, which at this

point is largely a mere formality. Appellants believe that it

will be inconsistent with their responsibilities as representa-

tives of the class of black voters in Alabama for them to seek

status quo relief from this Court which, at least numerically,

These intervening events and the withdrawal of Appellants’

prayer fox a stay do not, however, render the issues in this

appeal moot. The challenged interim court-ordered reappor-

tionment plan remains in effect, and remedial elections sooner

than the unspecified date ‘n the Fall of 1983 may be practicable

and warranted.

Even if this Court were to determine that remedial elections

ought not be scheduled any sooner than Fall 1983, it should

note probable jurisdiction in this appeal on the ground that

the issues presented are “capable of repetition yet evading re-

view”. Sosna v. Iowa, 419 U.S. 393, 399 (1975). In relevant

respects, the instant case is indistinguishable from Moore v.

Ogilvie, 394 U.S. 814 (1969), where the petitioners sought to

be certified as candidates in an election that had already been

held. Moore v. Ogilvie is one of the chief authorities relied on

in Sosna, supra, 419 U.S. at 399. Whether and under what cir-

cumstances a federal district court may authorize state authori-

ties to implement even temporarily voting changes that have

not been precleared under Section 5 are questions which have

already confronted several courts and are bound to recur with

frequency, particularly in reapportionment cases. These are

sensitive questions involving both the relationship between the

federal judiciary and state and local governments and the pro-

priety of federal court action that frustrates or interferes with

statutory voting remedies established by the Congress under the

fourteenth and fifteenth amendments. This Court should af-

ford plenary consideration to these issues and resolve what one

lower court has called “confusion in the case law about the pre-

cise remedy to be accorded to plaintiffs in a case of this nature.”

Heggins v. City of Dallas, 469 F.Supp. 739, 742 (N. D. Tex.

1979) .

There is a sharp division among the lower federal courts

concerning the extent of their equitable discretion to permit

state or local authorities to go forward with unprecleared elec-

tion schemes on a temporary basis. Under varying circum-

stances, a number of courts have enjoined the conduct of im-

pending elections where voting changes have been objected to

or otherwise have not been precleared nder Section 5. Busbee

v. Smith, — F Supp. (D. D.C. May 24, 1982) (State of

Georgia enjoined from conducting congressional elections un-

der redistricting plan objected to by the Attorney General) ;

Herron v. Koch, 523 F.Supp. 167 (S.D. N.Y. 1981) (City of

New York enjoined from conducting primary elections where

redistricting plan had been submitted to the Attorney General,

who had not yet objected) ; United States v. Board of Commis-

sioners of Colleton County, 509 F.Supp. 1329 (D. S.C. 1981)

(further elections under unsubmitted at-large election plan for

county council enjoined); Coalition to Preserve Houston v.

Interim Board of Trustees of the Westheimer Independent

School District, 494 F Supp. 738 (S.D. Tex. 1980) , appeal dis-

missed, 101 S.Ct. 1335 (1981) (local elections held in defiance

of Attorney General’s Section 5 objection voided as legally un-

enforceable”) ; Heggins v. City of Dallas, 469 F.Supp. 739 (N. D.

Tex. 1979) (city elections enjoined where city’s declaratory

judgment action was still pending in the D. C. district court

and the districting plan had not yet been precleared) , citing

Matthews uv. LeFlore County Board of Election Comm'rs, 450

F.Supp. 755 (N.D. Miss. 1978) ; Horry County v. United States,

449 F.Supp. 990 (D. D.C. 1978) ; White v. Dougherty County

Bd. of Education, 43\ F.Supp. 919 (M.D. Ga. 1977), aff'd, 439

U.S. 32 (1978) ; Pitts v. Carter, 380 F.Supp. 4 (N. D. Ga. 1974) ;

Beer v. United States, 374 F.Supp. 357 (D. D.C. 1974).

Other courts have either failed to enjoin or refused to enjoin

elections despite the absence of Section 5 preclearance. Terrazas

v. Clements, 537 F.Supp. 514 (N.D. Tex. 1982) (some legisla-

tive districts objected to by the Attorney General included in

court-ordered plan); Charlton County Bd. of Edu-

cation v. United States, 459 F.Supp. 530 (D. D.C. 1978) (pri-

mary elections authorized under plan objected to by Attorney

General on grounds that district court lacked personal jurisdic-

tion over authorities responsibie for elections and that primary

elections would not finally determine the candidates elected) ;

United States v. Hale County Commission, 425 F.Supp. 433

(S.D. Ala. 1976) , aff'd, 430 U.S. 924 (1977) ; Moore v. LeFlore

County Bd. of Election Comm'rs, 351 F.Supp. 848 (N. D. Miss.

1971); Wilson v. North Carolina State Bd. of Elections, $17

F.Supp. 1299 (M.D. N.C. 1970).

As Appellees point out, Motion to Dismiss or Affirm at 17,

there is dictum in one decision of the District Court for the

District of Columbia interpreting this Court’s decisions in

Georgia v. United States, 411 U.S. 526, 541 (1973) , and Perkins

v. Matthews, 400 U.S. 379, 369-97 (1971), as recognizing the

equitable power of federal district courts to permit enforce-

ment of election law changes pendente lite notwithstanding

their lack of preclearance under Section 5. Horry County v.

United States, supra, 449 F.Supp. at 996. In fact, neither of

these decisions squarely addresses the proposition cited, and

both are readily distinguished by the presence of serious ques-

tions about the applicability of Section 5 to the voting changes

involved. See Berry v. Doles, 438 U.S. 190, 194 (1978) (J.

Brennan concurring). Other decisions of this Court imply

that, where Section 5 coverage is undisputed, federal courts

have no alternative” but to stay or enjoin impending elections

under an unprecleared plan. Holt v. City of Richmond, 406

U.S. 903 (1972) (C. J. Burger concurring) ; Canady u. Lumber-

ton City Bd. of Education, 102 S.Ct. 494 (1981) (stay granted

to prohibit the implementation of an objected-to annexation) ;

Dougherty County Bd. of Education v. White, supra (district

court’s injunction of-an unprecleared voting change affirmed) .

The specific exercise of jurisdictional authority and/or dis-

cretion at issue in the instant case has never been addressed

squarely by this Court.

r 5

asa , court

plan. The question of the use of unprecleared has

arisen in the context of whether a legislative mus:

initially be submitted for e. g., McDaniel v.

Sanchez, [452 U.S. 130 (1 . 438 US.

190 (1978), not in the context of

r e

objected to can be temporarily utilized upon a dis-

trict court's finding that parts of the objected-to plan are

the most equitable under the circumstances.

Terrazas v. Clements, supra, 537 F.Supp. at 539.

This Court should decide whether district courts have the

statutory authority per se to authorize in any manner the im-

plementation of election changes which have not been pre-

cleared either by the Attorney General or by the District Court

for the District of Columbia. At the very least, it may be ar-

gued that only the District Court for the District of Columbia

has the jurisdictional authority to permit temporary implemen-

tation of an unprecleared plan pendente lite. See McDaniel v.

Sanchez, supra, 452 U.S. at 151; United States v. Board of

Supervisors of Warren County, 429 U.S. 652 (1977). Thus

limiting the authority of iocai district courts would prevent the

occurrence of anomalous situations, like the instant one, where

state authorities, who otherwise would be forced to file a de-

claratory judgment action in the District of Columbia prior to

implementing an objected-to voting change, may take advan-

tage of a pending private action filed in the local district court

to circumvent the explicit enforcement scheme of Section 5.

Even if this Court should conclude that local district courts,

as a matter of raw power, may authorize temporarily the en-

forcement of unprecleared election plans, it should provide

clear guidance for the proper exercise of equitable discretion

in such cases. The lower court decisions vary substantially with

respect to what principles should govern their discretion. For

example, the district court in the instant case believed that the

objectives of the Voting Rights Act would better be served by

allowing impending elections to go forward in spite of the

Attorney General’s objection, with interim elections to follow

a year later. Jurisdictional Statement at A-28-29.? The court in

8 incorrectly assert that PlaintiffsAppellants never argued to

the Court that the elections should be postponed if their plans

were Motion to Dismiss or Affirm at 9-10. Plaintiffs’ two mo-

tions to alter or amend urged of the elections as a last re-

In the District Court's of June 28, 1982, squarely addressed

fact,

and rejected this suggestion. Jurisdictional Statement at A-29, para. (5).

7

Herron v. Koch, 5359 F.Supp. at 175, took the opposite position,

believing that to allow the city to go forward with planned

elections without Section 5 preclearance “would effectively

nullify the intended thrust of the section.” Accord, Heggins v.

City of Dallas, supra, 469 F.Supp. at 742 (“it seems to us immi-

nently more equitable to all concerned to delay the election

rather than to allow an election in direct contravention of the

Voting Rights Act”). The majority in Heggins v. City of

Dallas, supra, 469 F.Supp. at 742, concluded that the choice of

whether or not to enjoin elections under unprecleared plars

should be controlled, among competing equitable considera-

tions, by the timing of the plaintiffs’ claim. Dissenting, Judge

Hill disagreed, urging instead the weighing of factors soch as

the potential prejudice to the voting rights of racial minorities

and the extent to which the State or local government had un-

duly delayed seeking Section 5 preclearance. Id. at 746-47.

Clarification of these issues is badly needed. The confusion

of priorities in the provision of judicial relief for Section 5 vio-

lations leaves lawmakers, voters and courts alike in a state of

uncertainty about the proper course of action to be taken, par-

ticularly in the legislative reapportionment process. This de-

feats the congressional purpose of the Voting Rights Act, which

was designed to provide certainty regarding when voting

changes may be implemented in covered jurisdictions.

N

CONCLUSION

For the aforegoing reasons, Plaintiffs-Appellants pray that

the Court will note probable jurisdiction in this appeal, and,

following plenary review, that it will vacate the interim elec-

tion order of the District Court and remand the case with in-

structions that new remedial elections, fully complying with

Section 5, be conducted at the earliest practicable opportunity.

Respectfully submitted,

EDWARD STILL

(Admitted as Wilson Edward Still, Jr.)

Suite 400, Commerce Center

2027 First Avenue, North

Birmingham, Alabama

COUNSEL OF RECORD

JAMES U. BLACKSHER

LARRY MENEFEE

P. O. Box 1051

Mobile, Alabama 36633

SOLOMON SEAY

Gray, Seay & Langford

352 Dexter Avenue

Montgomery, Alabama 36104

FRANK R. PARKER

Lawyers’ Committee for

Civil Rights Under Law

783 15th Street, N.W.

Suite 520

Washington, D.C. 20005