# Appellants Reply Brief — Burton v. Hobbie > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0702%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Reply Brief - **Published:** January 1, 1982 - **Citation:** 459 U.S. 961 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0702%3A5. Public record. Not legal advice.