Amicus Curiae Brief — Presley v. Etowah County Comm'n

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YUL 11 199)

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In the Supreme Court uf the United State

OCTOBER TERM, 1991

J

ames eee, US

Nos. 90-711 and 90-712

LAWRENCE C. PRESLEY, ETC., APPELLANT

v.

ETOWAH COUNTY COMMISSION, ET AL.

ED PETER MACK, ET AL., APPELLANTS

Vv.

RUSSELL COUNTY COMMISSION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING APPELLANTS

KENNETH W. STARR

Solicitor General

JOHN R. DUNNE

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

ROBERT A. LONG, JR.

Assistant io the Solicitor General

DAVID K. FLYNN

IRVING GORNSTEIN

Attorneys

Department of Justice

Washington, D.C. 205380

(202) 514-2217

——_—_————_——_—_——_—————_——— SS

QUESTIONS PRESENTED

The ultimate question presented in both cases is

whether a transfer of decisionmaking authority from one

elected official or set of officials to another official or set

of officials is a “change with respect to voting” covered

by Section 5 of the Voting Rights Act of 1965, 42 U.S.C.

1973¢c, regardless of whether the officials serve the same

or different voting constituencies and regardless of

whether the transferred authority is more or less im-

portant than other duties of the office.

1. In No. 90-711, the specific question is whether a

county commission’s decision to transfer authority to

determine road work priorities from individual commis-

sioners elected from single-member districts to the en-

tire commission is a change “with respect to voting” un-

der Section 5.

2. In No. 90-712, the specific question is whether a

State’s transfer of road work authority from county com-

missioners elected at large from residency districts to a

county engineer appointed by the commission is a change

“with respect to voting” »« er Section 5.

(1)

———eee s

TABLE OF CONTENTS

Page

Interest of the United States 1

a 2

Summary of argument 0. ee 7

Argument:

I. A change in the decisionmaking power of an

elected official is a change with respect to voting

requiring preclearance under Section 5... 10

A. Section 5 applies to all changes that affect

“the power of a citizen’s vote”... 10

B. Some reallocations of authority are covered

a 13

C. Changes in the power of elected officials are

subject to preclearance when the changes re-

allocate decisionmaking authority 17

1. The district court’s “different constitu-

ency” rule is too narrow... 19

2. There is no exception to Section 5 for

SC 21

3. The district court’s standard confuses the

questions whether a change is subject to

preclearance and whether the change

should be precleared 22

II. The changes at issue here reallocated the deci-

sionmaking powers of elected officials, and there-

fore are subject to preclearance under Section 5.. 23

EE 26

Appendix _................. itinlialelieiaershbieeneedeennstanenamwensccseneses la

TABLE OF AUTHORITIES

Cases:

Allen v. State Bd. of Elections, 398 U.S. 544

Ee 8,9, 11, 12, 13, 21, 24

City of Lockhart v. United States, 460 U.S. 125

(1983) .. eeaieidiadiiiiibibianimmanpenes ...9, 12, 18, 19

(IIT)

IV

Cases—Continued : Page

City of Rome v. United States, 446 U.S. 156

Ee ee Tee ee 26

Clark v. Roemer, No. 90-952 (June 13, 1991)... 23

County Council of Sumter County v. United States,

555 F. Supp. 694 (D.D.C. 1983) 15

Dougherty County Bd. of Educ. v. White, 439 U.S.

RRR REE SE Se 11,12

Georgia V. United States, 411 U.S. 526 (1973)... 12

Hallstrom v. Tillamook County, 498 U.S. 20

I iain diene kien baa lie 11

Hardy v. Wallace, 603 F. Supp. 174 (N.D. Ala.

SUIT tentinneicetatdtceccanscndnensidnsenedintacntithiiinsiaiaeeiitaa tien 15

Horry County v. United States, 449 F. Supp. 990

I sai ee 14-15, 20

Houston Lawyers’ Ass’n v. Texas Attorney Gen-

eral, Nos. 90-813 & 90-974 (June 20, 1991)... 25

McCain v. Lybrand, 465 U.S. 236 (1984)... 11, 14, 22

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

NAACP v. Hampton County Election Comm’n,

EE ee 7,11, 16

Perkins v. Matthews, 400 U.S. 379 (1971)....11, 12, 22, 23

Robinson vy. Alabama State Dep’t of Educ., 652

F. Supp. 484 (M.D. Ala. 1987) 16

Rojas v. Victoria Indep. School Dist., Civ. A. No.

V-87-16 (S.D. Tex. Mar. 29, 1988), aff’d, 490

RITE: RES EAR EN 18

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

REE SRE EPS ae 8,14

Thornburg Vv. Gingles, 478 U.S. 30 (1986)... 19

Constitution and statutes:

U.S. Const. :

TIRES a Re ReneS DRL 4

Ee RN ED rh a <P 4

Civil Rights Acts of 1964, Tit. VI, 42 U.S.C.

ST EET a ee 4

Voting Rights Act of 1965, 42 U.S.C. 1971 et seq.:

ESSERE RU On Maa 2,4

Statutes—Continued : Page

Ge le BI ccectectitecccccccccccecs 1, 2, 5, 6, 7, 8, 9, 11,

12, 13, 14, 15, 16

§ 14(c) (1), 42 U.S.C. 19781 (c) (1) 11

Ala. Code § 23-1-80 (1975 & Supp. 1990) 24

Miscellaneous:

S. Rep. No. 417, 97th Cong., 2d Sess. (1982) 12

S. Rep. No. 295, 94th Cong., Ist Sess. (1975) 12

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-711

LAWRENCE C. PRESLEY, ETC., APPELLANT

v.

ETOWAH COUNTY COMMISSION, ET AL.

No. 90-712

Ep PETER MACK, ET AL., APPELLANTS

Vv.

RUSSELL COUNTY COMMISSION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING APPELLANTS

INTEREST OF THE UNITED STATES

These consolidated appeals present the question

whether a transfer of decisionmaking authority from one

elected official or set of officials to another official or set

of officials is a change “with respect to voting” subject

to preclearance under Section 5 of the Voting Rights Act

of 1965, 42 U.S.C. 1973e. Under Section 5, the Attorney

General is responsible for reviewing voting changes sub-

mitted by covered jurisdictions for administrative pre-

(1)

2

clearance. The Attorney General also has authority un-

der the Act to bring actions to prevent unprecleared

changes from taking effect. The Court’s resolution of

these cases will affect the scope of the Attorney General’s

duties under Section 5.

On April 11, 1991, in response to this Court’s invita-

tion, the Solicitor General submitted a brief expressing

the views of the United States. The brief generally sup-

ported appellants’ position and recommended that the

Court note probable jurisdiction in both cases. The

United States also participated as an amicus curiae in

the district court.

STATEMENT

1. On November 1, 1964 (the date Section 5 of the

Voting Rights Act became applicable to appellees, see 42

U.S.C. 1973b(b)), the Etowah County Commission con-

sisted of five members: four commissioners elected at

large but required to reside in separate “residency dis-

tricts,” and a chairman elected at large. J.S. App. A4.'

The four commissioners each exercised complete control

over a road shop, crew and equipment in their respective

residency districts. Jbid. The commission allocated road

funds to each district based on projected need. /bid. The

four “road commissioners” then unilaterally determined

work priorities in their own districts. [bid.

In 1986, the Commission entered into a consent decree

resolving litigation under Section 2 of the Voting Rights

Act of 1965, 42 U.S.C. 1973. J.S. App. A4-A5. The de-

cree expanded the Commission to six members, all of

whom eventually would be elected from single-member

districts. Jd. at A5. Two commissioners were elected

from districts in December 1986; Appellant Presley, the

1The district court’s opinion is reproduced in the appendices to

the Jurisdictional Statements in both No. 90-711 and No. 90-712;

references herein to “J.S. App.” may be found in the appendix to

either filing.

3

first black commissioner in Etowah County in recent his-

tory, is one of these two. Under the decree, two of the

at-large holdovers ran from districts and were elected in

bo the other two were to run from districts in 1990.

id.

The consent decree specified that the commissioners

elected in 1986 were to have the same duties as the four

holdovers. J.S. App. A5. In August 1987, however, the

Commission passed a “road supervision” resolution pro-

viding that each of the four holdover commissioners

would continue to exercise authority over road operations

in their districts. /bid. The resolution further provided

that the “old four” would oversee road work throughout

Etowah County. /d. at A5-A6. The resolution assigned

non-road duties to the two new commissioners. /d. at A6.

The effect of the resolution was to strip the two new

commissioners of any supervisory authority over road

operations. Not surprisingly, the road supervision reso-

lution was passed by a vote of four to two, over the oppo-

sition of the two new commissioners. /d. at A5.

On the same day, the Commission adopted a second

resolution by an identical vote of four to two. J.S. App.

A6-A7. This resolution abolished the practice of allocat-

ing road funds to districts. Instead, the resolution pro-

vided that road funds would be retained in a common

fund for use without regard to district lines. Jbid. The

effect of this “common fund” resolution was to transfer

authority to determine funding priorities from individual

commissioners to the entire commission. Neither the road

supervision resolution nor the common fund resolution

was submitted for preclearance.

2. On November 1, 1964, the Russell County Commis-

sion consisted of three members elected at large from

“residency districts.” J.S. App. A2. In 1972, as a result

of a court order to comply with the one-person, one-vote

rule, the Commission was expanded from three to five

members. Phenix City, the largest city in the county,

became the fourth residency district; two commissioners

were required to reside there. /bid.

4

Under the system adopted in 1972, each of the three

rural commissioners exercised authority over a separate

road shop. J.S. App. A2. (The two Phenix City com-

missioners lacked such authority, because Russell County

generally does not fund or maintain city roads. See id.

at A2 n.2). The three rural commissioners each set road

work priorities, bought equipment, and hired and man-

aged personnel within their districts. 7d. at A2-A3. Each

commissioner also approved funding for routine work.

Id. at A8. Funding for new or major construction, how-

ever, required Commission approval. /d. at A3 n.3. A

county engineer, appointed by the Commission, assisted

the road commissioners in carrying out their responsibil-

ities. Jd. at A3.

In 1979, after an investigation uncovered corruption

in Russell County’s road operations, the Alabama legis-

lature enacted a statute transferring all responsibility for

road work to the county engineer. J.S. App. A3. The

1979 statute requires the engineer to perform road work

without regard to district lines, thereby establishing what

is known as a “unit system.” /bid. The 1979 statute was

not submitted for preclearance.

In 1985, the Commission entered into a consent decree

to resolve litigation under Section 2 of the Voting Rights

Act. J.S. App. A4. Under this decree, the Commission

was expanded from five to seven members, with each

member elected from a single-member district. /bid. Ap-

pellants Mack and Gosha were elected to office under this

system in 1986, and became the first two black commis-

sioners in recent history. J[bid.

3. In 1989, appellants filed suit in federal district

court alleging that the conduct of road operations in

Etowah and Russell Counties violated previous court or-

ders, the Fourteenth and Fifteenth Amendments, Title

VI of the Civil Rights Act of 1964, and Section 2 of the

Voting Rights Act. J.S. App. A7. Thereafter, appellants

amended their complaint to allege that Russell County’s

failure to preclear its transfer of road authority to the

5

county engineer, and Etowah’s failure to preclear the

road supervision and common fund resolutions, violated

Section 5 of the Voting Rights Act. Jbid. A three-judge

court was convened to consider the Section 5 claims. /d.

at A7-A8.

The court held that transfers of authority are subject

to Section 5 preclearance when they “effect a significant

relative change in the powers exercised by governmental

officials elected by, or responsible to, substantially differ-

ent constituencies of voters.” J.S. App. A13-A14. Since

minority groups often have different levels of voting

strength in different constituencies, the court explained,

a transfer of authority from an official elected by one

constituency to an official elected by another may have a

potential for discrimination. Jd. at Al4. Such a poten-

tial is unlikely to exist, the court thought, when the offi-

cials are elected by the same constituency. Jbid. Even

when officials with different constituencies are involved,

the court added, “minor or inconsequential” transfers of

authority do not have a “significant potential impact on

voting rights.” bid.

Applying these principles, the court concluded that Rus-

sell County’s transfer of road supervision authority from

the individual commissioners to the county engineer was

not a change covered by Section 5, because both the com-

missioners and the engineer ultimately were answerable

to the same constituency—the entire Russell County elec-

torate. J.S. App. A16-A18. Although individual com-

missioners were required to reside in a particular dis-

trict, the court explained, they “were elected by, and thus

politically responsible to, all the voters of Russell County.”

Id. at Al6. Similarly, the county engineer, although ap-

pointed, is responsible to the commission, and that body

is responsible to all county voters. 7d. at A16-A17.

The court also concluded that Etowah County’s com-

mon fund resolution did not require preclearance. The

court acknowledged that the common fund resolution

transferred authority between officials with different con-

6

stituencies. Before enactment of the resolution, individ-

ual commissioners elected from, or facing election from,

single-member districts could determine priorities for

road repair in their own districts; afterwards, the entire

commission had this authority. J.S. App. Al8-Al19. The

court nonetheless concluded that this change did not

affect voting since the power to set internal priorities was

“minor and inconsequential” compared to the entire com-

mission’s authority, both before and after the resolution,

to determine the amount of money to be allocated to each

district. /d. at Al19.

In contrast, the court held that Etowah County’s road

supervision resolution was covered by Section 5. J.S. App.

A20-A21. The court concluded that “[t]he potential for

discrimination posed by this change is blatant and obvi-

ous.” Jd, at A20. The court explained that “[w]hereas

before 1987 all the voters of Etowah County participated

in choosing the commissioners responsible for road man-

agement, the 1987 resolution stripped the voters in [two]

districts * * * of any electoral influence over such com-

missioners.” Jbid. Thus, “[a]uthority over the most im-

portant aspect of county governance was shifted from

officials responsible to the entire county to officials (albeit

the same individuals) responsible to only two thirds of the

county’s voters.” Jd. at A20-A21.’

Judge Thompson dissented in part. He agreed with

the majority that Etowah County’s road supervision res-

olution was subject to the preclearance requirement, but

dissented from the court’s conclusion that the common

fund resolution did not require preclearance. J.S. App.

A27-A33. In concluding that the power to set internal

priorities was comparatively insignificant, Judge Thomp-

son said, the majority ignored the realities of road oper-

ations in Etowah County. Jd. at A32. The allocation of

funds among districts “has never been a bone of con-

2 Etowah County subsequently repealed the road supervision res-

olution, and has not cross-appealed from this portion of the district

court’s ruling. 90-711 Mot. to Aff. 2 n.3.

7

tention.” Jbid. Instead, a “commissioner’s real authority

lies * * * in how those funds are used after they are

allocated.” Ibid. In Judge Thompson’s view, “|t|]he com-

mon fund resolution and the road supervision resolution,

working together, took this authority away from the two

new commissioners and gave it exclusively to the four

holdover commissioners.” [bid.

Judge Thompson also dissented from the court’s con-

clusion that Russell County’s transfer of road authority

from individual commissioners to the county engineer did

not constitute a change affecting voting. J.S. App. A33-

A35. According to Judge Thompson, the court’s holding

ignored the possibility that the commissioners might have

been more accountable to voters in their residency dis-

tricts than to those outside their districts. Jd. at A34.

More fundamentally, Judge Thompson disagreed with

the majority’s conclusion that transfers of authority are

covered by Section 5 only when they occur between offi-

cials with different constituencies. Pet. App. A35-A36.

The question whether there is a potential for discrimina-

tion, he thought, should not be decided on the basis of a

rigid rule. Jd, at A37-A38. If a limiting principle were

required, Judge Thompson stated, he would find it suffi-

cient for plaintiffs to show that “there has been a sig-

nificant and fundamental change in the nature of the

duties traditionally exercised by elected officials.” Jd. at

A3s.

SUMMARY OF ARGUMENT

1. A change in the decisionmaking power of an elected

official is a change “with respect to voting” covered by

Section 5 of the Voting Rights Act. Congress intended

Section 5 to be applied broadly. In deciding whether a

change is subject to preclearance, the court’s inquiry is

limited to whether the change has the potential for dis-

crimination. See NAACP v. Hampton County Election

Comm’n, 470 U.S. 166, 181 (1985). Moreover, any change

with respect to voting, no matter how small or minor, is

8

subject to preclearance. See Allen v. State Bd, of Elec-

tions, 393 U.S. 544, 566-568 (1969). In addition, it is

now firmly established that Section 5 applies not only

to practices that directly affect voter registration and

balloting, but to all practices that affect “the power of a

citizen’s vote.” Id. at 569.

Some reallocations of the power of elected officials

plainly affect the power of a citizen’s vote. For example,

eliminating all the powers of an elected body would re-

duce citizens’ votes for members of that body to a nullity.

Because such changes could have a racial purpose or

effect, they have the potential for discrimination and are

covered by Section 5.

If all reallocations of authority were outside the scope

of Section 5, a covered jurisdiction could negate the elec-

tion of a candidate favored by minority voters simply

by reallocating the successful candidate’s authority to

other elected or appointed officials. That would defeat

the purpose of Section 5, which is to bar measures that

would “evade the remedies for voting discrimination

contained in the Act itself.” South Carolina v. Katzen-

bach, 383 U.S. 301, 335 (1966). Accordingly, the lower

courts and the Department of Justice consistently have

recognized that some reallocations of authority are cov-

ered by Section 5.

We agree with the district court that not all changes

in the powers of elected officials are subject to preclear-

ance. But we disagree with the standard devised by the

district court, which requires preclearance only if the

change involves (1) officials responsible to different con-

stituencies, and (2) relatively important duties. In our

view, transfers of authority are covered by Section 5 when

they implicate an elected official’s decisionmaking author-

ity. Such changes go to the core of a citizen’s voting

power, and therefore are subject to preclearance,

The district court erred in concluding that transfers

between officials who serve the same constituency have

no potential for discrimination. Transfers of power from

9

a larger to a smaller body, or from a body for which

single-shot voting is permitted to one for which such

voting is prohibited, for instance, obviously have the

potential to be discriminatory, even though both bodies

are elected by the same constituency. In fact, the At-

torney General has objected to transfers of authority

between officials serving the same constituency on at least

three occasions. In addition, the “same constituency” rule

is inconsistent with this Court’s decision in City of Lock-

hart v. United States, 460 U.S. 125 (1983), which held

that expansion of a body from three to five members re-

quired preclearance even though both the smaller body

and the larger body were elected by the same constituency.

The district court also erred in concluding that rela-

tively unimportant transfers of authority are not sub-

ject to preclearance. The statute plainly states that Sec-

tion 5 applies to “any * * * standard, practice, or pro-

cedure with respect to voting,” 42 U.S.C. 1973¢c (em-

phasis added), and it is well settled that there is no de

minimis exception to the preclearance requirement. See

Allen, 393 U.S. at 566. An exception for “minor” trans-

fers of authority would be difficult to administer and

would undermine the prophylactic purpose of Section 5.

The district court’s standard also blurs the distinction

between the question whether a change is subject to pre-

clearance (which turns on whether changes of that type

have the potential for discrimination) and the question

whether the change should be precleared (which turns

on whether the particular change at issue would have a

discriminatory purpose or effect). Because changes in

the decisionmaking power of an elected official have the

potential for discrimination, all such changes are subject

to preclearance. Whether the purpose or effect is present,

and the weight to be given the State’s legitimate interests,

are matters to be considered after the submission has

been made.

2. The reallocations of authority at issue here must be

submitted for preclearance. In Russell County, decision-

10

making authority concerning road matters was trans-

ferred from individual commissioners elected at large to

a county engineer appointed by the commission. Simi-

larly, Etowah County’s common fund resolution trans-

ferred authority to decide the priority of road projects

from individual commissioners elected from single-mem-

ber districts to the commission as a whole,

ARGUMENT

I. A CHANGE IN THE DECISIONMAKING POWER

OF AN ELECTED OFFICIAL IS A CHANGE WITH

RESPECT TO VOTING REQUIRING PRECLEAR-

ANCE UNDER SECTION 5

The central question presented by these appeals is

whether a change in the decisionmaking authority of an

elected official is a change “with respect to voting” under

Section 5 of the Voting Rights Act of 1965. The district

court held that such changes are covered by Section 5,

but only when they involve a “significant re/ative change”

in power between officials who are “elected by, or respon-

sible to, substantially different constituencies of voters.”

J.S. Al3-A14. We agree that a change in an elected

official’s authority can be a change with respect to voting.

In our view, however, a change in the decisionmaking

authority of an elected official is covered by Section 5 even

if the officials involved are responsible to the same con-

stituency, and even if the authority at issue may be

viewed as relatively minor or inconsequential. Under

this standard, the changes at issue here require pre-

clearance.

A. Section 5 Applies To All Changes That Affect “The

Power Of A Citizen’s Vote”

Section 5 of the Voting Rights Act provides that cer-

tain States and political subdivisions, including appellees,

may not implement “any voting qualification or prerequi-

site to voting, or any standard, practice, or procedure

11

with respect to voting” without first obtaining preclear-

ance from the United States District Court for the Dis-

trict of Columbia or the Attorney General. 42 U.S.C.

1973c. To receive preclearance, a covered jurisdiction

must show that a proposed change “does not have the

purpose and will not have the effect of denying or abridg-

ing the right to vote on account of race or color, or [mem-

bership in a language minority group].” J/bid.

This Court has recognized that Section 5 draws a sharp

distinction between the procedural question whether a

change is subject to preclearance and the substantive

question whether the change should be precleared. In

deciding the first question, a court may not inquire into

whether the change has a discriminatory purpose or effect.

See NAACP v. Hampton County Election Comm’n, 470

U.S. 166, 181 (1985) ; McCain v. Lybrand, 465 U.S. 236,

250 n.17 (1984); Perkins v. Matthews, 400 U.S. 379,

383-385 (1971). Instead, the inquiry is limited to

whether the challenged alteration has the “potential for

discrimination.” Hampton County, 470 U.S. at 181:

Dougherty County Bd. of Educ. v. White, 439 U.S. 32,

42 (1978). Moreover, a court may not exempt from

preclearance changes it views as insignificant. The plain

language of the statute makes the preclearance require-

ment applicable to any change with respect to voting, no

matter how small or minor. See Allen v. State Bd. of

Elections, 393 U.S. 544, 566-568 (1969) (“It is signifi-

cant that Congress chose not to include even * * * minor

exceptions in § 5, thus indicating an intention that all

changes, no matter how small, be subjected to § 5 scru-

tiny.”). See also Perkins v. Matthews, 400 U.S. at 387.

See generally Hallstrom v. Tillamook County, 493 U.S.

20, 25 (1989) (Courts “are not at liberty to create an

exception where Congress has declined to do so’’).

The Voting Rights Act defines “vote” and “voting” to

include “all action necessary to make a vote effective.” 42

U.S.C, 19731(¢c) (1). Relying on this broad definition, and

Congress’s refusal to make any exceptions to Section 5’s

12

preclearance requirement, this Court held in Allen that

Section 5 is not limited to changes directly affecting the

casting of a ballot. 393 U.S. at 563-569. The Court ex-

plained that “[t]he right to vote can be affected by a dilu-

tion of voting power as well as by an absolute prohibition

on casting a ballot.” Jd. at 569. Allen held, inter alia,

that a change from district to at-large voting, and a

change from an elected county superintendent of educa-

tion to a superintendent appointed by the board of edu-

cation, were covered by Section 5.* 393 U.S. at 569-570.

In subsequent cases, this Court has reaffirmed the

broad definition of Section 5 coverage adopted in Allen. In

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

held that annexations which enlarge the number of eligi-

ble voters are covered by Section 5 because they dilute

“the weight of the votes of the voters to whom the fran-

chise was limited before the annexation.” 400 U.S. at

388. In Georgia v. United States, 411 U.S. 526, 532-533

(1973), the Court held that Section 5 applies to legisla-

tive reapportionments since they too can dilute minority

voting power. And in City of Lockhart v. United States,

460 U.S. 125, 131-132, 134-135 (1983), the Court held

that the preclearance requirement applies to the intro-

duction of numbered posts and staggered terms, because

such devices may frustrate the use of single-shot voting,

a technique that permits minority voters to concentrate

their vote behind a single candidate. Jd. at 135.

Congress reenacted Section 5 in 1970, 1975, and 1982.

With each reenactment, Congress has reaffirmed the valid-

ity of Allen’s interpretation of congressional intent. See

S. Rep. No. 417, 97th Cong., 2d Sess. 6-7 (1982); S. Rep.

No. 295, 94th Cong., Ist Sess. 16 (1975); Dougherty

County Bd. of Educ., 439 U.S. at 38-39; Georgia v. United

States, 411 U.S. at 533. Thus, it is now firmly established

that the preclearance requirement applies not only to prac-

3In all, the Court’s opinion in Allen decided three consolidated

cases from Mississippi and one case from Virginia. See 393 U.S.

at 547.

13

tices that directly affect the process by which voters are

registered and cast their ballots, but also to all practices

that affect “the power of a citizen’s vote.” Allen, 393

U.S. at 569.

B. Some Reallocations Of Authority Are Covered By

Section 5

Some changes in the powers of an elected official plainly

affect the power of a citizen’s vote and therefore are cov-

ered by Section 5. To take an extreme example, a change

eliminating all of a county commission’s powers and

making that body purely ceremonial would reduce the

citizen’s vote for county commissioners to a virtual nullity.

Cf. Allen, 393 U.S. at 569-570 (change making an elective

office appointive is covered by Section 5). Less drastic

changes in the authority of an elected body can also

affect the power of a citizen’s vote. For example, stripping

a school board of its power to set the tax rate would

diminish the voting power of citizens who vote in school

board elections, even if the school board were to retain

other significant powers. After the change, a vote for

school board members, although not meaningless, would

mean less than it did before. And such a diminution in

voting power could have a racial purpose or effect and

thus have the potential for discrimination.

Although this Court has not yet decided whether

changes in the powers of an elected official or group of

officials are covered by Section 5, the Court has held that

a change from a three-member elected body to a five-

member elected body required preclearance, because it

changed the voting power of the individual members of

the three-member body. City of Lockhart v. United States,

supra. As the Court explained in Lockhart, “{i]n moving

from a three-member commission to a five-member coun-

cil, [the city] has changed the nature of the seats at

issue. * * * For example, [two of the old seats] now

constitute only 40% of the council, rather than 67% of

the commission.” 460 U.S. at 131. Given Lockhart’s hold-

14

ing that reducing the power of an individual member of

an elected body by increasing the size of the body requires

preclearance, it is difficult to see how reducing the power

of the entire elected body can fall outside the scope of

Section 5.*

A decision excluding all reallocations of authority from

the scope of Section 5 would have far-reaching conse-

quences. Since the enactment of the Voting Rights Act,

minority voters in many jurisdictions have elected candi-

dates of their choice to office for the first time in recent

history. If transfers of authority were not subject to

preclearance, a jurisdiction could negate the election of

a minority candidate to a governing body by taking away

the official’s authority and reallocating it to other offi-

cials over whom minority voters have less influence. This

would defeat the purpose of Section 5, which is to pre-

vent covered jurisdictions from implementing measures

that would “evade the remedies for voting discrimination

contained in the Act itself.” South Carolina v. Katzen-

bach, 383 U.S. 301, 335 (1966).

The Etowah County case illustrates this danger. Im-

mediately after a minority-supported candidate was

elected to office for the first time in recent memory, the

commission stripped him of all authority over road work.

The district court found that the potential for discrimi-

nation against minority voters posed by this change was

“blatant and obvious.” J.S. App. A20.

The lower courts have uniformly concluded that a

change in the authority of elected officials can be a

change with respect to voting. In Horry County v. United

4In McCain v. Lybrand, 465 U.S. 236 (1984), state legislation

changed the governing body of a county from an appointed com-

mission to an elected council with increased legislative powers. The

parties stipulated that this legislation incorporated changes with

respect to voting, and the Court therefore was not required to

address the issue. The Court nevertheless noted that “several

changes are suggested,” including “the basic reallocation of au-

thority from the state legislative delegation to the Council.” 465

U.S. at 250 n.17.

15

States, 449 F. Supp. 990 (D.D.C. 1978) (three-judge

court), a state statute increased the powers of the county

commission and provided that commissioners would be

elected rather than appointed by the governor. The stat-

ute also transferred most of the duties of the county

chairman to an administrator appointed by the commis-

sion. The court held that the first change “reallocate[d]

governmental powers among elected officials voted upon

by different constituencies,” and therefore was subject to

preclearance. Jd. at 995. The court also concluded that

the duties of the chairman “are sufficiently different that

in this respect [the statute] constitutes a change in elec-

toral practices requiring preclearance under Section 5 of

the Voting Rights Act.” Jbid. Similarly, in Hardy v.

Wallace, 603 F. Supp. 174 (N.D. Ala. 1985) (three-judge

court), a state statute transferred the authority to ap-

point the Greene County racing commission from the

county’s state legislative delegation to the governor. The

court held that this change was subject to Section 5

preclearance because of “its effect on the power of the

voters.” Jd. at 178. The court explained that “the trans-

fer of appointment authority to the governor, over 99.7%

of whose constituents are not inhabitants of Greene

County, substantially dilutes the power of the voters in

Greene County by effectively eliminating the power of

such voters over the Commission.” Jd. at 179.° See also

County Council of Sumter County v. United States, 555

F. Supp. 694 (D.D.C. 1983) (three-judge court) (transfer

5 The Department of Justice originally concluded that the legisla-

tion at issue in Hardy v. Wallace was subject to preclearance, rely-

ing in part on Horry County v. United States, supra. See 603 F.

Supp. at 179-180 (decision letter of June 18, 1984). On recon-

sideration, the Department concluded that while “it would be wrong

to conclude that no reallocation of governmental power can ever be

considered a change ‘with respect to voting,’” the particular change

at issue was not covered by Section 5. See 603 F. Supp. at 181-182

(decision letter of Oct. 31, 1984). Further experience with Section

5 has now led us to the view that we were right the first time, as

the court in Hardy v. Wallace determined. See pp. 17-23, infra.

16

of legislative power formerly shared by county legislative

delegation, state legislature, and governor to local gov-

erning body requires preclearance) ; Robinson v. Alabama

State Dep’t of Educ., 652 F. Supp. 484 (M.D. Ala. 1987)

(transfer of authority from county school board to city

school board requires preclearance).

The Attorney General, whose interpretation of Section

5 is entitled to “considerable deference,” NAACP v.

Hampton County Election Comm’n, 470 U.S. at 178-179,

has long treated certain changes in the power of elected

officials as changes with respect to voting. The Depart-

ment of Justice first focused on reallocations of authority

in 1975, when South Carolina enacted “home rule” legis-

lation authorizing its counties to adopt their own forms

of local government and to assume increased powers. The

Department precleared this enabling legislation, but noti-

fied the State that each implementation of it by a local

government would require a separate preclearance. The

State sought clarification of whether preclearance would

be required in cases in which the county assumed in-

creased powers but retained its existing form of govern-

ment. In response, the Department stated that “changes

in the powers and duties of the governing entity brings

the transition within the purview of Section 5 even though

the structure of the governing body remains the same.”

Letter from J. Stanley Pottinger to Daniel R. McLeod

(Dee. 19, 1975) reprinted in App., infra, 2a. Since 1975,

the Department of Justice consistently has treated home

rule and other similar transfers of authority as changes

with respect to voting requiring preclearance under Sec-

tion 5. During this period, we have objected to transfers

of authority on at least eight occasions.’ In addition, the

® The Department has objected to the following transfers of au-

thority: (1) Mobile, Alabama, March 2, 1976, involving a transfer

of administrative duties from the entire commission to individual

commissioners; (2) Charleston, South Carolina, June 14, 1977, in-

volving a transfer of taxing authority from the legislative delega-

tion to the county council; (3) Edgefield County, South ro'ina,

17

Department has precleared numerous other transfers of

authority submitted by jurisdictions after finding the

absence of discriminatory purpose and effect.

C. Changes In The Power Of Elected Officials Are Sub-

ject To Preclearance When The Changes Reallocate

Decisionmaking Authority

In our view, the hard question in this case is not

whether a change in the power of an elected official can

ever constitute a change with respect to voting requiring

preclearance under Section 5—it plainly can—but rather

whether the district court employed the correct standard

to distinguish those changes that require preclearance

from those that do not. The Department of Justice con-

sidered this question when it amended its Section 5 regu-

lations in 1987, but did not attempt ‘o provide an all-

encompassing answer. At that time, we stated that

“|wlhile we agree that some reallocations of authority

are covered by Section 5 (e.g., * * * ‘home rule’), we do

not believe that a sufficiently clear principle has yet

emerged distinguishing covered from noncovered realloca-

tions.” J.S. App. Al5 n.13.

Since 1987, several cases, including this one, have

forced us to grapple with this issue further and have led

us to conclude that transfers of authority that implicate

February 8, 1979, involving a transfer of increased taxing power

to the county council; (4) Colleton County, South Carolina, Sep-

tember 4, 1979, involving a transfer of authority to tax for school

purposes from the legislative delegation to the county council: (5)

Brunswick and Blynn County, Georgia, August 16, 1982, involving

the abolition of separate city and county commissions and the trans-

fer of their powers to a consolidated commission; (6) Hillsborough

County, Florida, August 29, 1984, involving a transfer of power over

municipalities from the legislative delegation to the county com-

mission (objection was withdrawn because the county made clear

that it did not intend to effect such a transfer); (7) Waycross,

Georgia, February 16, 1988, involving a change in the duties of the

mayor; and (8) San Patricio, Texas, May 7, 1990, involving a trans-

fer of voter registration duties from the county clerk to the county

tax assessor.

18

an elected official’s decisionmaking authority are covered

by Section 5. Changes that affect an elected official’s

authority to make decisions—to legislate, tax, spend, set

school curricula, approve road and bridge projects, and

so forth—go to the core of the citizens’ voting power.

Changes that do not affect an official’s power to make

decisions generally have no such potential to dilute the

power of a citizen’s vote. Although such changes may be

of interest to the officeholders, officeholders are not pro-

tected by Section 5. Accordingly, such changes are out-

side the scope of Section 5.’

The district court adopted a different standard for

distinguishing between covered and uncovered changes.

According to the district court, transfers in authority are

covered only when they (1) involve officials who are re-

sponsible to different voting constituencies, and (2) the

duties transferred are not minor or inconsequential.

These limitations cannot be squared with the language

and purposes of Section 5.

7 The decision in Rojas yv. Victoria Indep. School Dist., Civ. A. No.

V-87-16 (S.D. Tex. Mar. 29, 1988), aff'd, 490 U.S. 1001 (1989),

illustrates this distinction. In Rojas, a school board replaced its

rule that any board member could place items on the board’s agenda

with a rule giving the board president authority to require that

items be placed on the agenda only at the request of two board

members. This change did not affect the range of matters over

which the school board could make decisions. Nor did it affect the

power of individual members to influence those decisions, since de-

cisions of the board required a majority vote both before and after

the change. Moreover, the board’s rules of procedure required a

second to initiate discussion or bring a matter to a vote. Accord-

ingly, the new agenda setting policy was not a change “with respect

to voting” requiring preclearance under Section 5. For the same

reason, a transfer of authority from a legislative body to a committee

to make recommendations concerning proposed legislation would not

be covered by Section 5, because the entire body retains the author-

ity to decide whether to adopt the legislation. More generally, a

transfer of authority to give advice or make recommendations would

also be outside the reach of Section 5.

19

1. The District Court’s “Different Constituency”

Rule Is Too Narrow

The district court correctly recognized that transfers

between officials with different voting constituencies can

create the potential for discrimination, since “identifiable

racial or ethnic groups of voters will often have differ-

ent levels of voting strength in different constituencies.”

J.S. App. Al4. The court erred, however, in concluding

that transfers of authority between officials who serve the

same constituency have no discriminatory potential.

To cite one example, if two elected bodies serve the

same constituency, but one has many members while the

other has only a few, minority voters may have a greater

opportunity to elect a candidate of their choice to the

larger body. See City of Lockhart, 460 U.S. at 136

(minority voters elected a candidate of their choice for

the first time when the council expanded from three to

five members). Consequently, a transfer of authority

from the larger to the smaller body would have the

potential to discriminate against minority voters. Simi-

larly, if minority voters use single-shot voting to elect

their preferred candidate to a county school board, and

the authority to tax for school purposes is then shifted

to a county commission where single-shot voting is pro-

hibited, there is a potential for diluting minority voting

strength, even if both the school board and the commis-

sion are elected at large by al! residents of the county.

Still again, if minority voters elect a mayor of their

choice because of special circumstances (e.g., the minor-

ity candidate ran unopposed, see Thornburg v. Gingles,

478 U.S. 30, 51 (1986)), and authority to appoint city

officials is then transferred to the city council, the change

is potentially discriminatory even where both the mayor

and the city council are chosen by the same electorate.

Our disagreement with the district court’s “different

constituency” rule is by no means academic. On at least

three occasions, the Attorney General has objected to

transfers of authority between officials serving the same

20

constituency. In one case (Mobile, Alabama, March 2,

1976), a three-member commission elected at-large

sought to transfer administrative responsibilities exer-

cised by the entire commission to individual members of

the commission. Our investigation disclosed that the pur-

pose of this reallocation was to forestall any possibility of

a change to single-member districts (on the theory that

it would be inappropriate to permit one area of the city

to elect an official with city-wide responsibilities). In

another case (Colleton County, South Carolina, Septem-

ber 4, 1979), the State transferred the authority to levy

taxes for school purposes from the county’s state legisla-

tive delegation to the county council, both of which were

elected at-large by county residents. Our investigation

uncovered evidence that the representatives to the legisla-

tive delegation had sought the support of black voters and

had been responsive to their needs, while representatives

to the county council had not. In the third case (San

Patricio, Texas, May 7, 1990), the Attorney General

objected when a county transferred the authority to reg-

ister voters from the county clerk to the county tax asses-

sor, both of whom are elected at-large by the entire

county. Our investigation revealed that the purpose of

the change was to retaliate against the county clerk for

cooperating in a Section 5 review of an unrelated voting

change. These objections demonstrate that the district

court’s “different constituency” test too narrowly defines

the circumstances under which preclearance should be

required.

In addition, the district court’s “different constituency”

rule is inconsistent with Lockhart. As discussed above,

this Court held that the transfer of power from a three-

member body to a five-member body was covered by Sec-

tion 5, even though both bodies served the same voting

constituency. Under the district court’s “same constitu-

ency” rule, such a change would be outside the scope of

Section 5. See also Horry County, 449 F. Supp. at 995-

996 ‘transfer of administrative functions from chair-

21

man elected at-large to administrator appointed by Coun-

cil elected at large is a covered change).

2. There Is No Exception To Section 5 For Minor

Changes

The district court also erred in holding that transfers

of authority that can be characterized as relatively minor

or inconsequential need not be precleared under Section

5. The district court concluded that such transfers do

not require preclearance because they do not have “a

significant potential impact on voting rights.” J.S. App.

Al4. But that is not the statutory test; as noted above,

the preclearance requirement is not limited to changes

with a “significant” impact on voting rights. On the con-

trary, the language of the statute makes the preclearance

requirement applicable to “any * * * standard, practice,

or procedure with respect to voting,” no matter how

small or minor. 42 U.S.C. 1973c; see Allen, 393 U.S. at

566. When minority voters lose the power to use their

vote to affect a governmental decision, their voting power

has been diminished. That they retain the power to in-

fluence what a court may regard as more important mat-

ters does not redeem that loss.

Not only does the district court’s approach lack roots

in the statute itself, but its standard would be difficult

to administer. In many cases, the Department of Justice

would find it necessary to conduct an extensive investiga-

tion simply to decide whether a change is subject to pre-

clearance. Covered jurisdictions would face a similar bur-

den in deciding whether they are required to submit a

change. Even after investigation, it may not be clear on

which side of the line a particular change falls. Matters

that are very important to some voters may be of no im-

portance at all to others. For these reasons, the district

court’s standard would invite litigation in every case to

determine the question of coverage. That baleful result

would defeat the purpose of administrative preclearance,

which is “to provide a speedy alternative method of com-

22

pliance to covered States.” Morris v. Gressette, 432 U.S.

491, 503 (1977). More fundamentally, the district court’s

standard would undermine the prophylactic purpose of

Section 5 by permitting the covered jurisdiction to decide

whether a transfer of authority is important enough to

require preclearance. See McCain, 465 U.S. at 246 (Sec-

tion 5 must be interpreted “in light of its prophylactic

purpose and the historical experience which it reflects”).

3. The District Court’s Standard Confuses The

Questions Whether A Change Is Subject To Pre-

clearance And Whether The Change Should Be

Precleared

The district court’s standard also blurs the distinction

between the procedural question whether a change must

be submitted for preclearance and the substantive ques-

tion whether the change should be precleared. This

Court’s decision in Perkins v. Matthews, supra, illustrates

the difference between these two inquiries. In Perkins, the

district court held that a jurisdiction’s annexation did

not have to be precleared because blacks still constituted

a majority of the voters after the annexation. 400 U.S.

at 385-386. Similarly, the court did not require the jur-

isdiction to preclear a change from single-member dis-

tricts to at-large elections because blacks would still have

the power to elect the candidates of their choice in at-

large elections. Finally, the district court held that

changes in the location of polling places did not require

preclearance since the changes were dictated by necessity.

This Court reversed, holding that the district court had

effectively inquired into the merits of whether the changes

had the purpose or effect of discriminating against mi-

nority voters—a function reserved for the Attorney Gen-

eral and the United States District Court for the District

of Columbia. 400 U.S. at 386. The Court explained that

annexations that enlarge the number of eligible voters,

changes to at-large election systems, and changes in poll-

ing places are practices that can, in particular cases, dis-

23

criminate against minority voters. Accordingly, this

Court held that all such changes must be precleared. /d.

at 387-394.

That principle applies here. A change in the decision-

making power of an elected official has an effect on the

voting power of those who vote for that official, and that

type of change has the potential to discriminate against

minority voters. Accordingly, all such changes must be

submitted for preclearance, including those that appear

innocuous. To be sure, a showing that the officials serve

the same constituency, and that the transfer is a minor

one, may be important evidence that a transfer of au-

thority is without a discriminatory purpose or effect and

should be precleared. But those factors do not eliminate

the requirement that the change undergo the preclearance

process.*

II. THE CHANGES AT ISSUE HERE REALLOCATED

THE DECISIONMAKING POWERS OF ELECTED

OFFICIALS, AND THEREFORE ARE SUBJECT TO

PRECLEARANCE UNDER SECTION 5

For the reasons discussed above, the reallocations of

authority at issue here must be submitted for preclear-

ance under Section 5. In Russell County, decisionmaking

authority over road matters was transfered from indi-

®We have no quarrel with the district court’s observation that

Section 5 “is not to be stretched beyond the point of reason and

beyond its legitimate purposes.” J.S. App. A22 n.21. Congress did not

intend to overwhelm the Attorney General with preclearance sub-

missions. Cf. Clark vy. Roemer, No. 90-952 (June 13, 1991), slip op.

11. Nor did it intend to require the States to delay implementation

of any and all changes that can be linked to voting through an

imaginative exercise in the conceivable. But these concerns are

satisfied by limiting Section 5 coverage to changes in an elected

official’s decisionmaking authority. Unlike the district court’s stand-

ard, this approach is consistent with the language and legislative

history of Section 5, is faithful to its prophylactic purpose, and

affords a reasonable degree of certainty about whether a particular

change is covered.

24

vidual commissioners, elected at large from residency dis-

tricts, to the county engineer, who is appointed by the

Commission. The district court held that the change was

not covered because it involved officials who serve the

same constituency. For the reasons noted above, however,

that is not sufficient to eliminate the potential for dis-

crimination and therefore does not place the change out-

side the scope of Section 5. The public policy reasons for

adopting the unit system may well support preclearance

once the change is submitted. And the fact that the com-

missioners are answerable to all the voters of Russell

County, and the county engineer is answerable to the

commissioners, may also support the County’s argument

for preclearance.’ But those facts do not obviate the

need to go through the process.

The Etowah common fund resolution also requires pre-

clearance. That resolution removed the power of indi-

vidual commissioners to decide which road projects in

their districts wou'd receive priority. Consequently, it in-

volved a transfer of decisionmaking power concerning

“the most important aspect of county governance” (J.S.

App. 20) from one set of officials to another. See Ala.

Code § 23-1-80 (1975 & Supp. 1990) (principal respons-

ibility of county commissions is to maintain roads and

bridges). The district court held that preclearance was

® Although the district court concluded that the county commis-

sioners and the county engineer answered to the same constituency,

in fact appoiuted officials generally are not “answerable” to the

electorate in the same sense as elected officials. (If they were,

changes in the authority of appointed officials would be no less

subject to preclearance than changes in the decisionmaking author-

ity of elected officials.) Appointed officials may be subject to job

protection of various kinds that insulates them from elected officials

and voters. Even where an appointed official serves at the pleasure

of an elected official, moreover, a vote against the elected official does

not automatically translate into a “vote” against the appointed offi-

cial. See Allen, 393 U.S. at 569-570 (holding that change from

elected superintendent of education to superintendent appointed by

the board of education is subject to preclearance).

——

25

not required because the power to set internal priorities

is not as important as the power to determine overall

funding. While this may be so, voters clearly have an

interest in how both functions are performed. If the

road to a voter’s home is one the voter’s commissioner

would schedule for paving but the county commission as

a whole would not, the transfer of authority to set road

work priorities from the former to the latter may be—

to that voter—an extremely important change.

The Etowah common fund resolution was passed while

the Commission was undergoing a transition from an at-

large system to single-member districts. Good government

considerations might well call for different allocations of

powers depending on whether members of an elected body

serve specific districts or at large. At-large members

may, for example, be expected to have the concerns of

the entire county in mind in setting priorities, while

members serving only a specific district might have more

parochial concerns. The State’s legitimate public policy

reasons for a change are appropriately weighed in de-

termining whether that change should be precleared.

See Houston Lawyers’ Ass’n v. Texas Attorney General,

Nos. 90-813 & 90-974 (June 20, 1991), slip op. 6

(“State’s justification for its electoral system is a proper

factor for the courts to assess in a racial vote dilution

inquiry.”). But the facts of the Etowah County case

illustrate why such justifications should be weighed dur-

ing the preclearance process. As a result of the common

fund resolution, individual commissioners were stripped

of their power to determine district funding priorities

almost immediately after minority voters were able to

elect a commissioner of their choice for the first time.

Such a change clearly warrants Section 5 review."®

1 In No. 90-712, appellants contend (J.S. 4-6) that a change with

no potential for discrimination at the time it is implemented (and

therefore not subject to preclearance), may nevertheless become sub-

ject to preclearance at a later date if subsequent changes—here, a

change from at large voting to single member districts—create a

26

CONCLUSION

The district court’s judgment should be reversed, and

the case should be remanded for the entry of appropriate

relief.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JOHN R. DUNNE

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

DAVID K. FLYNN

IRVING GORNSTEIN

Attorneys

JULY 1991

potential for discrimination. In our view, the changes at issue in

this case were subject to the preclearance requirement at the time

they were made. Accordingly, the Court need not reach this addi-

tional contention. But if the Court were to reach this question, the

position of the United States is that a change not subject to pre-

clearance at the time it is implemented may not thereafter become

subject to preclearance because of subsequent, unanticipated changes.

The rule appellants argue for is not derived from the language or

legislative history of Section 5, and would impose an unwarranted

degree of uncertainty on state and local governments. Of course,

efforts to evade the preclearance requirement by impiementing a

covered change in two or more steps are subject to preclearance.

In addition, if a covered jurisdiction fails to submit a change that

is subject to preclearance, and the Department of Justice thereafter

reviews it, it will consider intervening developments in determining

whether to interpose an objection. See City of Rome v. United

States, 446 U.S. 156, 186 (1980).

APPENDIX

[Dec. 19, 1975]

Honorable Daniel R. McLeod

Attorney General

State of South Carolina

P.O. Box 11549

Columbia, South Carolina 29211

Dear Mr. Attorney General:

This is in reference to your letter of September 9,

1975, concerning the adoption of a form of govern-

ment by subdivisions in South Carolina under the

provisions of Act R-396, the Home Rule Act. You

requested clarification of a statement in my previous

letter concerning the need for Section 5 preclearance

of assigned forms of government which may include

situations where no modification of existing govern-

ment is involved. I apologize for the delay in re-

sponding.

With regard to counties, if a county is either as-

signed a form of government or retains a form of

government which is identical in every respect to that

which was in effect, without intervening change,

since November 1, 1964, or has been implemented

since November 1, 1964, and which has met Section

5 preclearance, then there would not be a change in

a voting procedure within the meaning of the Voting

Rights Act of 1965. However, Section 14-3701(b)

provides that the type of government which will be

assigned in the event a county does not elect to adopt

another form of government will be a form “most

nearly corresponding to the form in effect immedi-

ately prior to [July 1, 1976]”. It thus appears that

the Act anticipates that the exact form of govern-

ment which is in effect on July 1, 1976, will prob-

ably not be assigned by operation of the Act and this

(la)

2a

expectation would seem to be warranted at least in

most cases in view of the broad new powers bestowed

upon the governing body under the Home Rule Act.

In light of the Supreme Court’s admonition in

Allen v. State Board of Elections, 393 U.S. 544, 563

(1969), that Congress intended “that all changes, no

matter how small, be subjected to Section 5 scrutiny”,

we believe that changes in the powers and duties of

the governing entity brings the transition within the

purview of Section 5 even though the structure of the

governing body remains the same. However, in the

event that procedures under the Home Rule Act

should result in a county’s retaining its previous

form of government with powers and duties un-

changed, then, of course, there would not be a change

within the meaning of Section 5.

Likewise with regard to municipalities, if the form

of government which a municipality adopts under the

provision of Part IJ, Article 2, of the Act is identical

to that which exists at the expiration of the period

described in Section 6 of the Act, then, there would

not be a change in voting under Section 5. However,

if the new form of government which is selected by

this municipality is different in any respect, including

changes in the powers and duties of the affected en-

tities, or if a municipality forfeits its articles of in-

corporation, then such action will constitute a change

under Section 5.

I hope that we have been able to clarify this mat-

ter for you. If we may be of further assistance,

please do not hesitate to contact us.

Sincerely,

J. STANLEY POTTINGER

Assistant Attorney General

Civil Rights Division

©. &. Coveenment painting orrice, 1901 262061 20626