Amicus Curiae Brief — Morse v. Republican Party of Va.

In the Supreme Court of the

OCTOBER TERM, 1994

FoRTIS MORSE, ET AL., APPELLANTS

Vv.

OLIVER NorTH FOR UNITED STATES SENATE

COMMITTEE, INC., ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING APPELLANTS

Drew S. Days, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

STEVEN H. ROSENBAUM

SAMUEL R. BAGENSTOS

Attorneys

Department of Justice

Washington, D.C. 2053

(202) 514-2217

| BESTAVAILABLECOPY ™

QUESTIONS PRESENTED

1. Whether the decision of a political party to require

voters to pay a fee to participate in the party’s convention

for nominating a candidate for the United States Senate is

a change “with respect to voting” under Section 5 of the

Voting Rights Act of 1965 (the Act), 42 U.S.C. 1973c.

2. Whether voters may bring a private action under

the anti-poll-tax provision of the Act, 42 U.S.C. 1973h.

(1)

Argument

TABLE OF CONTENTS

I. The decision of the Republican Party of Virginia

to impose a fee on delegates to its convention

for selecting a senatorial nominee is a change

“with respect to voting” under Section 5 of the

II.

Cases:

Voting Rights Act

A.

C.

D.

Section 5 applies to a political party when the

party exercises a state-delegated public elec-

toral function in a way that affects “voting”

within the meaning of the Act

. Section 5 applies to the Party’s decision to

charge a fee to convention delegates, because

that decision involves the exercise of state-

delegated public electoral function and affects

“voting” within the meaning of the Act........

The district court erred in holding that Sec-

Section 5 applies to party conventions in a

workable manner

Section 5 does not unconstitutionally inter-

fere with a party’s freedom of association...

Private parties may invoke the remedies against

unlawful poll taxes in Section 10 of the Voting

Rights Act oa tne A Le lc a eee

LETTER SASS ee ree

TABLE OF AUTHORITIES

Allen v. State Bd. of Elections, 3938 U.S. 544

Snails eahiphadieptaetonpusacentansapsuseneennecssanssed 6, 10, 15, 25, 26

(III)

Pa

can es 8

17

19

3 8

IV

Cases—Continued: Page

Conley Vv. Gibson, 355 U.S. 41 (1957) ....................... 2

Democratic Party of United States v. Wisconsin

ex rel. LaFollette, 450 U.S. 107 (1981) ................. 23

Dougherty County v. White, 489 U.S. 32 (1978)... 10, 12,

15, 19, 21

Eu v. San Francisco County Democratic Central

Comm., 489 U.S. 214 (1989) -...............2.2..----ccc-0e- 24

Fortune Vv. Kings County Democratic Comm., 598

eS %, & *:* § | RE eenereene 12, 15

Georgia V. United States, 411 U.S. 526 (1973) -....... 20

Hawthorne Vv. Baker, 750 F. Supp. 1090 (M.D. Ala.

1990), vacated as moot, 499 U.S. 933 (1991) ...... 11,12

Henderson V. Graddick, 641 F. Supp. 1192 (M.D.

PR PRR Otel hE 20, 25

Johnson V. De Grandy, 114 S. Ct. 2647 (1994) ....... 26

MacGuire v. Amos, 343 F. Supp. 119 (M.D. Ala.

SUED ciisincieeaiies 11-12

Miree v. DeKalb County, 433 U.S. 25 (1977) .......... 2

NAACP v. Hampton County Election Comm’n,

PS Se 7, 18, 15, 17, 22

Newberry v. United States, 256 U.S. 232 (1921)... 16,17

O’Brien v. Brown, 409 U.S. 1 (1972) -.................... 24

Perkins v. Matthews, 400 U.S. 879 (1971) -............ 21

Port Arthur v. United States, 459 U.S. 159 (1982) .. 20

Presley Vv. Etowah County Comm’n, 502 U.S. 491

CD siiiinieniiciisnanendaiitins 8, 9, 10, 17, 19, 21

Riddell v. National Democratic Party, 508 F.2d

8 | eR ee Seer eran 17

Ripon Society, Inc. v. National Republican Party,

525 F.2d 567 (D.C. Cir. 1975), cert. denied, 424

U.S. 9383 (1976) ‘ 24

Shaw V. Reno, 118 S. Ct. 2816 (1998) ...................... 2

Smith v. Allwright, 321 U.S. 649 (1944) ....... 7, 10, 18, 14,

17, 23, 24

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

CD dnininntunemnniith 24

Tashjian V. Republican Party of Connecticut, 479

U.S. 208 (1986) . 24

Terry V. Adams, 345 U.S. 461 (1953) -....... 7, 10, 14, 23, 29

United States v. Board of Comm’rs, 435 U.S. 110

(1978) 6, 10, 11, 18, 18, 19

> Vv

Case—Continued: Page

United States v. Classic, 313 U.S. 299 (1941)........ 16

Williams v. Democratic Party, No. 16286 (N.D.

Ga. Apr. 6, 1972), summarily aff’d, 409 U.S. 809

RE RISE RE I TS Ss ae ee 5, 7,18

Wilson Vv. North Carolina State Bd. of Elections,

817 F. Supp. 1299 (M.D.N.C. 1970) ........000000000... 12

Constitution, statutes and regulations:

U.S. Const.:

Art. I:

St eiiliciaiajititastho desk citaitpedcihdissiada chanelle iasdeltainasis iat 16

ETS RIES eae ARG lL LIE 16

PENNS SO It 4, 10, 11, 23, 26, 27

pe SEER eae ener 8, 10, 11, 15, 17, 23, 24, 26

I citinsisa thcadiais Ved peiitintisaiighibnindipsdbiinigtaiaed 4, 26, 27

Voting Rights Act of 1965, 42 U.S.C. 1973 et seq... 2

TREES SE OO ee 26

EEE ae Le ae passim

§ 10, 42 U.S.C. 1978h, .................... 2, 4, 5, 6, 8, 25, 26, 27

§ 10(a), 42 U.S.C. 1978h (a) ................................ 26

§ 10(b), 42 U.S.C. 1978h(b) ............. 27

§ 10(c), 42 U.S.C. 1973h(c) ....... 5

§ 11(c), 42 U.S.C. 1973i(c) .... 5

fF 8 ET ae 25, 26

§ 14(c) (1), 42 U.S.C. 197381 (ce) (1) 2. 9, 15, 22

28 U.S.C. 2284 (a) -. ; 5

Va. Code Ann. (Michie 1993):

EEE ee eT 2,14

Ee edintatlaiintaniatibieeas 13

ET TEAR ae oF 2,13

Se 13

28 C.F.R.:

| ne 5, 6, 11, 15, 20, 21, 22

Section 51.7(a) ........... 14

Section 51.7 (b) ..... re itthiiiaas 13

ee ET RE EN OE ae 19

li SE ER 5 LC 22

Miscellaneous: Page

52 Fed. Reg. (1987):

a eT a. ae ne eT ee 20

. er 20

Extension of the Voting Rights Act: Hearings

Before the Subcomm. on Civil and Constitutional

Rights of the House Judiciary Comm., 97th

Camas TD TRU, te © CD cececteeeectceeetsceeeeetciieee 12

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-203

ForRTIS MORSE, ET AL., APPELLANTS

V.

OLIVER NORTH FOR UNITED STATES SENATE

COMMITTEE, INC., ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING APPELLANTS

INTEREST OF THE UNITED STATES

This case involves the extent to which Section 5 of the

Voting Rights Act of 1965, 42 U.S.C. 1973c, covers the

activities of political parties. Under Section 5, the Attor-

ney General is responsible for reviewing voting changes

submitted for administrative preclearance; she is also

responsible for defending declaratory judgment actions

brought in the United States District Court for the Dis-

trict of Columbia seeking judicial preclearance. The Act

also gives the Attorney General authority to bring ac-

tions to prevent unprecleared changes from taking effect.

The Court’s resolution of this case will therefore affect

the Attorney General’s enforcement responsibilities under

Section 5.

(1)

2

On January 4, 1995, in response to this Court’s invita-

tion, the Solicitor General submitted a brief expressing

the views of the United States. The brief supported appel-

lants’ position and recommended that the Court note prob-

able jurisdiction.

STATEMENT

This case involves the decision of the Republican Party

of Virginia (the Party) to elect its 1994 nominee for the

United States Senate at a convention open only to voters

who paid a $35 or $45 fee. Appellants are three individ-

uals registered to vote in Virginia. They contend that the

Party’s decision to require the fee violated the Voting

Rights Act of 1965 (the Act), 42 U.S.C. 1973 et seq.,

in two ways: (1) the Party did not obtain preclearance

for the fee, as required by Section 5 of the Act, 42 U.S.C.

1973c; and (2) the fee violates the anti-poll-tax provision

in Section 10 of the Act, 42 U.S.C. 1973h. A three-judge

court dismissed appellants’ claims under Section 5 and

Section 10 for failure to state a claim for which relief

could be granted.’

1. Virginia law authorizes a political party to place its

nominee for the United States Senate on the general elec-

tion ballot if the party received at least 10% of the vote

in any race in either of the two preceding statewide elec-

tions. Virginia law also authorizes a party to select its

senatorial nominee by a primary election or other means.

Va. Code Ann. §§ 24.2-101, 24.2-509(A) (Michie 1993).

1In this posture, the allegations in appellants’ complaint must

be taken as true, Miree v. DeKalb County, 483 U.S. 25, 27 n.2

(1977), and the dismissal of their claims under Section 5 and

Section 10 of the Act cannot be upheld “unless it appears beyond

doubt that the [appellants] can prove no set of facts in support of

[those] claim[s] which would entitle [them] to relief,” Conley

V. Gibson, 355 U.S. 41, 45-46 (1957). See also, e.g., Shaw v. Reno,

113 S. Ct. 2816 (1993) (reviewing dismissal of equal protection

claim on appeal).

3

The Party has used a variety of means to select its

senatorial nominees. See David S. Johnson Aff. (John-

son Aff.) 4 3, attached as an addendum to The Repub-

lican Party of Virginia’s Mem. of Law Opposing Pls.’

Mot. for a Prelim. Injunction. In 1964, for example, the

Party’s senatorial nominee was selected by its State Cen-

tral Committee, after a convention called for that pur-

pose refused to nominate a candidate to oppose Senator

Harry Byrd. In most later election years, however, the

Party chose its senatorial nominee at a convention. See

Mot. to Affirm or Dismiss 3 n.1; Johnson Aff. 44 13, 15.

In 1990, which was the senatorial election year imme-

diately preceding the one at issue in this case, the Party

decided to select its nominee at a primary election, but

the election was cancelled because no one challenged the

Party’s incumbent. See Johnson Aff. 4 14. The Party

has never sought judicial or administrative preclearance

of those changes in its nominating process under Section

5 of the Voting Rights Act, 42 U.S.C. 1973c. Compl.

q 47.

For the 1994 senatorial election, the Party decided to

select its nominee at a convention to be held on June 3,

1994. Compl. 4 12; see Johnson Aff. 4 16. According to

the Party’s Plan of Organization, delegates to such a con-

vention are to be selected at local “mass meetings,” which

are open to anyone registered to vote in Virginia who

supports the Party’s principles and is willing to declare

his or her support for the Party’s nominee. Johnson Aff.

q4 4-5. Although the Plan provides for the convention

delegates to be “elect[ed]” at these mass meetings, id. at

45, in practice any qualified voter who wants to be a

delegate and shows up at a mass meeting is chosen as a

delegate. Compl. 4 14; see Mot. to Affirm or Dismiss 2.

A person cannot, however, attend the Party’s conven-

tion merely because he or she has been selected as a dele-

gate. Instead, the delegate must also pay a non-refundable

fee to the Party. The amount of the fee has increased over

4

the years. For the 1994 convention, the fee was $35 or

$45, depending on the locality from which the delegate

was selected. Compl. 4 16; see Johnson Aff. 411. Ap-

pellants allege that the Party’s practice of charging the fee

was not in effect on November 1, 1964 (the effective date

for Virginia’s coverage under Section 5 of the Voting

Rights Act, 42 U.S.C. 1973c). Compl. 411. Nonethe-

less, the Party has never sought preclearance of the fee

under Section 5 of the Act. Compl. 44 46-47.

2. Appellants are registered voters in Virginia who

wanted to attend the Party’s 1994 convention. Appellants

Kenneth Bartholomew and Kimberly Enderson were de-

terred from attending by the fee requirement. Appellant

Fortis Morse learned of the fee requirement when he went

to the headquarters of the Albemarle County Republican

Party in February, 1994, to register as a delegate. Be-

cause Morse did not have enough money in his bank

account to pay the $45 fee, he asked a party official

whether it could be waived. The official said no. Morse

borrowed the money from a friend and was permitted to

register as a delegate only after paying the fee. Compl.

qq 4-6, 17-25, 35-39.

While at the Party’s county headquarters, Morse met

an Official of the Oliver North for United States Senate

Committee (North Committee). The North Committee

Official gave Morse $45 to repay his friend when Morse

indicated that he would support North at the Convention.

Morse repaid the North Committee. The Party has re-

tained Morse’s $45. Compl. 44 26-33.

3. On May 2, 1994, appellants filed their five-count

complaint in this action in the United States District Court

for the Western District of Virginia. Counts 1 and 2

charged that the fee violates the Twenty-Fourth and Four-

teenth Amendments to the Constitution. Compl. 4 41-

44. Counts 3 and 4 alleged that the fee violates Section 5

of the Act. 42 U.S.C. 1973c, because it was not pre-

cleared, and Section 10 of the Act, 42 U.S.C. 1973h,

5

because it is a poll tax. Compl. qj 45-49. Count 5

charged that the North Committee violated the anti-

vote-buying provision of the Act, Section 11(c) (42

U.S.C. 1973i(c)). Compl. 9450-51. The complaint

sought, among other relief, preliminary and permanent

injunctions preventing the Party from imposing the fee

and ordering it to return Morse’s $45. Compl. 4 6-7, 9.

A three-judge court was convened to consider appel-

lants’ claims under Section 5 and Section 10 of the Act.

See 42 U.S.C. 1973c, 1973h(c); 28 U.S.C. 2284(a).

After expedited briefing and a hearing, the court granted

appellees’ motion to dismiss those claims. J.S. App. A2-

Al4?

With regard to appellants’ Section 5 claim, the court

recognized that political parties are subject to Section 5

“to the extent they are empowered by the State to conduct

primary elections for purposes of sciecting national con-

vention delegates.” J.S. App. A8. But the court held that

Section 5 never applies to “a change in political party

rules dealing not with primary elections, but instead with

a party convention, canvass, or mass meeting.” Jd. at

A8-A9. The court believed that this holding was sup-

ported by the regulation of the Attorney General that

cites changes in party rules for primary elections as one

example of a type of change that is covered by Section 5.

J.S. App. A9-A10 (discussing 28 C.F.R. 51.7). The court

also relied on this Court’s summary affirmance of Williams

v. Democratic Party, No. 16286 (N.D. Ga. Apr. 6,

1972), summarily aff'd, 409 U.S. 809 (1972). In

2 The three-judge court remanded appellants’ Section 11(c) claim

and their constitutional claims to a single-judge district court.

Appellants voluntarily dismissed the Section 11(c) claim and asked

the single-judge court to postpone consideration of the constitu-

tional claims. J.S. 6 n.6. The only claims before this Court are

the claims in Counts 8 and 4, alleging violations of Section 5 and

Section 10 of the Act.

6

Williams, the district court held that Section 5 did not

cover a party’s decision to change its method of selecting

delegates to a national convention from a system under

which they were appointed to a system under which they

were chosen in open convention. See J.S. App. Al0. The

court in this case concluded that, because the fee at issue

here was imposed in connection with a convention, rather

than a primary, the Section 5 challenge to the fee had to

be dismissed. J.S. App. A10-A11.

In dismissing appellants’ Section 10 claim, the court

held that actions under Section 10, the anti-poll-tax provi-

sion of the Act, may be brought only by the Attorney

General, and not by a voter subject to a poll tax. J.S.

App. All-A1l2. The court based that holding on the

fact that Section 10 of the Voting Rights Act does not

expressly authorize private actions. Jd. at Al2. The court

recognized that in Allen v. State Bd. of Elections, 393

U.S. 544 (1969), this Court held that Section 5 of the

Act is enforceable by private actions, even though it, like

Section 10, does not expressly authorize them. J.S. App.

Al2. The court observed, however, that Section 10 differs

from Section 5, because Section 10 expressly authorizes

enforcement actions by the Attorney General. J.S. App.

Al2.

SUMMARY OF ARGUMENT

1. A. Section 5 applies to “all entities having power

over any aspect of the electoral process within designated

jurisdictions.” United States v. Board of Comm'rs, 435

U.S. 110, 118 (1978). The Attorney General has accord-

ingly interpreted Section 5 to cover political parties when

they perform a state-delegated “public electoral function”

in a manner that affects “voting” within the meaning of

the Act. 28 C.F.R. 51.7. The lower courts have endorsed

the Attorney General’s interpretation.

B. The Party’s decision to impose a fee on delegates

to its 1994 convention fits the criteria for Section 5 cover-

7

age adopted by the Attorney General and endorsed by the

lower courts. In holding a convention to nominate a

senatorial candidate, the Party was carrying out a state-

delegated public electoral function, because, by operation

of Virginia law, the nominee chosen at the convention

gained automatic access to the general election ballot. The

Party’s decision to impose the fee also affected voting in

the general election by excluding people who could not

pay the fee from the process of selecting the nominee

whose name would appear on the general election ballot.

This Court has held that similar changes affect voting.

See, e.g., NAACP v. Hampton County Election Comm'n,

470 U.S. 166, 174-181 (1985).

C. The district court erred in holding that Section 5

applies when a political party holds a primary election,

but not when it holds a convention, to select a nominee

whose name will appear on the general election ballot.

Whether the party uses the primary-election method or

the convention method of nomination, it performs a

state-delegated public electoral function. See Smith v.

Allwright, 321 U.S. 649 (1944); Terry v. Adams, 345

U.S. 461 (1953). Moreover, changes in the rules for

participating in nominating a candidate at a convention,

like changes in the rules for participating in a primary

election, may affect voting in the general election. In

holding that party conventions nevertheless fall outside

Section 5, the district court violated the principle that “the

form of a change in voting procedures cannot determine

whether it is within the scope of § 5.” Hampton County

Election Comm'n, 470 U.S. at 178. Nor was the district

court’s holding required by this Court’s summary affir-

mance of Williams v. Democratic Party, No. 16286 (N.D.

Ga. Apr. 6, 1972), summarily aff'd, 409 U.S. 809

(1972). The district court in Williams recognized that

rights associated with the selection of delegates to a

nominating convention “are the type of rights Congress

intended to safeguard” in Section 5. Williams, slip op. 4.

8

D. Section 5, as construed in the Attorney General’s

regulation, applies to party convention rules in a “work-

able” manner. Cf. Presley v. Etowah County Comm'n,

502 U.S. 491, 505 (1992). Under that regulation,

changes in convention rules must be precleared when they

relate to the nomination of a candidate whose name will

appear on the general election ballot. Many other conven-

tion rules are not subject to preclearance under the reg-

ulation. For example, preclearance is not required for

rules regarding the drafting of the party platform, and

generally is not required for rules regarding administration

of the party, unless they involve the exercise of a state-

delegated public electoral function or elections for party

office.

E. The application of Section 5 to party convention

rules does not unconstitutionally interfere with a party’s

freedom of association. This Court made clear in All-

wright and Terry that, when a party performs a public

electoral function, its freedom of association interests do

not prevail over the requirements of the Fifteenth Amend-

ment. Nor do they negate the protection afforded by

Section 5, which was enacted to enforce the Fifteenth

Amendment.

2. The district court’s holding that private parties may

not invoke the remedies against unlawful poll taxes in

Section 10 of the Act conflicts with this Court’s decision

in Allen. Allen held that voters may bring private actions

under Section 5, even though the Act does not expressly

authorize such actions. The reasoning of Allen applies

here.

9

ARGUMENT

I. THE DECISION OF THE REPUBLICAN PARTY

OF VIRGINIA TO IMPOSE A FEE ON DELEGATES

TO ITS CONVENTION FOR SELECTING A SENA-

TORIAL NOMINEE IS A CHANGE “WITH RE-

SPECT TO VOTING” UNDER SECTION 5 OF THE

VOTING RIGHTS ACT

A. Section 5 Applies To A Political Party When The

Party Exercises A State-Delegated Public Electoral

Function In A Way That Affects “Voting” Within

The Meaning Of The Act

Section 5 of the Voting Rights Act prohibits certain

jurisdictions, including Virginia, from changing “any vot-

ing qualification or prerequisite to voting, or standard,

practice, or procedure with respect to voting” until the

change has been precleared by either the United States

District Court for the District of Columbia or the Attor-

ney General. 42 U.S.C. 1973c.* The preclearance re-

quirement applies only to changes that have a “direct

relation to, or impact on, voting.” Presley v. Etowah

County Comm'n, 502 U.S. 491, 506 (1992). The term

“voting” is defined broadly under the Act, 42 U.S.C

1973l(c)(1):

The terms “vote” or “voting” shall include all

action necessary to make a vote effective in any

primary, special, or general election, including, but

not limited to, registration, listing pursuant to this

subchapter, or other action required by law pre-

requisite to voting, casting a ballot, and having such

ballot counted properly and included in the appro-

3 To obtain preclearance, a covered jurisdiction must demonstrate

“that such qualification, prerequisite, standard, practice, or proce-

dure does not have the purpose and will not have the effect of

denying or abridging the right to vote on account of race or color,

or [membership in a language minority group].” 42 U.S.C. 1973c.

10

priate totals of votes cast with respect to candidates

for public or party office and propositions for which

votes are received in an election.

Moreover, Section 5 is “expansive within its sphere of

operation.” Presley, 502 U.S. at 501. “[AJll changes in

voting must be precleared” (ibid.), even if they are

“minor,” and without regard to whether they have a

racially discriminatory purpose or effect. Allen v. State

Bd. of Elections, 393 U.S. 544, 566, 570 (1969).

This Court has made clear that a voting change can be

covered by Section 5 even if the change is not made by a

governmental unit. The Court stated in United States v.

Board of Comm'rs, 435 U.S. 110 (1978), that Section 5

“applies to all entities having power over any aspect of

the electoral process within designated jurisdictions, not

only to counties or to whatever units of state government

perform the function of registering voters.” Id. at 118.*

In that respect, the Court explained, Section 5 is “like the

constitutional provisions it is designed to implement,” the

Fourteenth and Fifteenth Amendments. Jbid. Those

Amendments govern political party activities that are

“part of the machigery for choosing [government] offi-

cials.” Smith v. Allwright, 321 U.S. 649, 664 (1944);

see also Terry v. Adams, 345 U.S. 461 (1953). The

Court in Board of Comm'rs accordingly relied on cases

* Based on that statement, the Court in Board of Comm’rs held

that Section 5 required preclearance of the decision of Sheffield,

Alabama, to change from a commission form of government to a

mayor-council form of government. 435 U.S. at 117-135. In so

holding, the Court rejected Sheffield’s argument that it was not

covered by Section 5 because it was not a “political subdivision” as

defined in the Act, since it had no power to register voters. 435

U.S. at 126-129. The Court subsequently relied on the statement in

Board of Comm’rs quoted in the text, supra, to hold in Dougherty

County v. White, 439 U.S. 32, 44 (1978), that Section 5 applied

to a rule adopted by a county board of education requiring em-

ployees to take unpaid leaves of absence while running for elective

public office.

al

interpreting the scope of the Fourteenth and Fifteenth

Amendments to interpret the scope of Section 5. 435

US. at 127 (citing Terry).

In accordance with this Court’s decisions, the Attorney

General has interpreted Section 5 to apply to “[cJertain

activities of political parties.” 28 C.F.R. 51.7. A regu-

lation of the Attorney General adopted in 1981 states

(ibid.):

A change affecting voting effected by a political

party is subject to the preclearance requirement [of

Section 5]: (a) If the change relates to a public

electoral function of the party and (b) if the party

is acting under authority explicitly or implicitly

granted by a covered jurisdiction * * *.

The regulation further states that, “[fJor example,” Sec-

tion 5 applies to “[c]hanges with respect to the conduct

of primary elections at which party nominees, delegates

to party conventions, or party offitials are chosen.” Jbid."

The lower federal courts have endorsed the criteria in

the Attorney General’s regulation. For example, the dis-

trict court in Hawthorne v. Baker, 750 F. Supp. 1090

(M.D. Ala. 1990), vacated as moot, 499 U.S. 933

(1991), held that Section 5 applied to changes in the

method for selecting members of the Alabama State Dem-

ocratic Executive Committee and members of certain

County Democratic Executive Committees. 750 F. Supp.

at 1094-1097. The court relied on its prior decision hold-

ing that “political parties in this state, to the extent they

are empowered by the state to conduct primary elections

and to have their national convention delegates selected,

are subject to §5.” Jd. at 1094 (citing MacGuire v.

5 The regulation also provides examples of party activities that

“are not subject to the preclearance requirement” of Section 5,

including “changes with respect to the recruitment of party mem-

bers, the conduct of political campaigns, and the drafting of party

platforms.” 28 C.F.R. 51.7.

12

Amos, 343 F. Supp. 119 (M.D. Ala. 1972) (three-judge

court) (per curiam)). The court found further support

for its holding in the Attorney General’s regulation, which

the court noted was “entitled to particular deference.” 750

F. Supp. at 1094-1095 (quoting Dougherty County v.

White, 439 U.S. 32, 39 (1978)).°

There is evidence that Congress also endorsed the At-

torney General’s criteria for Section 5 coverage of political

parties. Even before adopting the current regulation in

1981 (quoted supra), the Attorney General precleared

numerous proposed changes in party rules and on some

occasions objected to such changes.’ Evidence of the

Attorney General’s practice of preclearing some political

party rules under Section 5 was before Congress when it

reenacted the Voting Rights Act in June, 1982. See Ex-

tension of the Voting Rights Act: Hearings Before the

Subcomm. on Civil and Constitutional Rights of the

House Judiciary Com +., 97th Cong., 1st Sess. Pt. 3, at

2246, 2265 (1981) (appendix to letter from James P.

Turner, Acting Assistant Attorney General, to Rep. Ed-

wards, listing objections, including ones filed against po-

litical parties). Although Congress amended other pro-

visions of the Act in 1982, it did not amend Section 5

to exclude coverage of political parties. Moreover, Con-

®See also Fortune Vv. Kings County Democratic Comm., 598

F. Supp. 761, 763, 765 (E.D.N.Y. 1984) (relying on Attorney

General’s regulation to hold that Section 5 applied to change affect-

ing the voting membership of party’s executive committee, where

the committee performed “public electoral function[s]”) ; cf. Wilson

v. North Carolina State Bd. of Elections, 317 F. Supp. 1299, 1302-

1303 (M.D.N.C. 1970) (three-judge court) (Section 5 applied to

“Rotation Agreement” that limited county from which party’s

state senatorial candidate could be selected).

7 Of particular relevance, on April 12, 1982, the Attorney General

precleared the delegate apportionment rules adopted by the Demo-

cratic Party of Virginia for its senatorial nominating convention

to be held later that year.

13

gress rejected a number of proposals to restrict the scope

of Section 5 in other ways. See Hampton County Elec-

tion Comm'n, 470 U.S. at 176 & n.21. Under those

circumstances, Congress’s failure to restrict the scope of

Section 5 in 1982 supports the Attorney General’s inter-

pretation of that provision as covering certain political

party activities. Cf., e.g., Board of Comm'rs, 435 USS.

at 133 (according “special significance” to testimony of

Assistant Attorney General in congressional hearing

explaining scope of Section 5).

B. Section 5 Applies To The Party’s Decision To

Charge A Fee To Convention Delegates, Because

That Decision Involves The Exercise Of A State-

Delegated Public Electoral Function And Affects

“Voting” Within The Meaning Of The Act

Under the criteria adopted by the Attorney General

and approved by the lower courts, Section 5 covers the

decision of the Republican Party of Virginia to charge a

fee to those who wished to participate in the process of

nominating the Party’s candidate for the 1994 election for

the United States Senate. The Party’s nomination process

was, by operation of state law, “part of the machinery for

choosing [government] officials.” Smith v. Allwright, 321

U.S. at 664. In addition, the decision to charge the fee

affected voting in the general election.

1. Virginia law entitles the Party automatically to

place its senatorial nominee on the general election ballot.

See Va. Code Ann. § 24.2-511 (Michie 1993). It also

authorizes the Party to choose the method it will use to

select the candidate who gains this automatic access to the

ballot. See id. §§ 24.2-508, 24.2-509(A). In deciding

to select its senatorial nominee at a convention, the Party

thus was “acting under authority explicitly * * * granted

by” Virginia. 28 C.F.R. 51.7(b). The nomination pro-

cess, moreover, was a “public electoral function,” since

4

the nominee gained automatic access to a ballot for pub-

lic office by operation of state law. 28 C.F.R. 51.7(a).°

This Court’s decisions concerning the Fifteenth Amend-

ment support the conclusion that, in charging a fee to

convention delegates, the Party was exercising a state-

delegated public electoral function. In Smith v. All-

wright, supra, the Court held that a party rule excluding

black people from voting in the party’s primary was sub-

ject to the Fifteenth Amendment. 321 U.S. at 657-666.

The Court relied on state laws regulating the conduct

of primary elections and limiting the names that could

appear on the general election baliot to the nominees

selected by the primaries. Jd. at 663. The Court rea-

soned that by virtue of those laws, the State “endorses,

adopts, and enforces the discrimination” of the party in

the primary. Id. at 664.

In Terry v. Adams, supra, the Court held that the “pre-

primary” election held by the Jaybird Democratic Asso-

ciation, from which blacks were excluded, was subject

to the Fifteenth Amendment. The Court determined that

state law and the conduct of state officials caused the

pre-primary effectively to supplant the later official pri-

mary conducted by the Democratic Party. See 345 U.S.

at 469 (opinion of Black, J.); id. at 477 (opinion of

Frankfurter, J.); id. at 482 (opinion of Clark, J.). The

connection between the Jaybird pre-primary nomination

process and the general election, however, was not

as close as in the present case. Victors in the Jaybird

pre-primary were not legally compelled to run in the later,

official Democratic primary, see Terry, 345 U.S. at 463

8 Not every political association is entitled to such preferential

ballot access under Virginia law. While groups of people are

free to join together, call themselves “political parties,” hold con-

ventions, and “nominate” candidates for office, the candidates they

select are not entitled to automatic ballot access unless the group’s

nominee received at least 10% of the vote in any statewide election

in the previous two election cycles. Va. Code Ann. § 24.2-101

(Michie 1993).

me i)

(opinion of Black, J.), and losers in the Jaybird pre-

primary were not legally barred from running in the later

primary. See id. at 483 n.13 (opinion of Clark, J.).

Here, by contrast, the nominating convention by law

controls a position on the general election ballot.

2. The Party’s decision to impose the fee “affect/[s]

voting” (28 C.F.R. 51.7) in the general election. It does

so by affecting the selection of candidates who gain auto-

matic access to the general election ballot.

This Court has consistently held that changes in the

procedures by which candidates gain positions on the

general election ballot affect voting in the general election

and are therefore covered by Section 5. In Allen, for

example, the Court held that Section 5 applies to changes

that make it more difficult for independent candidates to

petition for a place on the general election ballot. See

393 U.S. at 551, 570. The Court reasoned that such

changes affect voting because they “might * * * under-

mine the effectiveness of voters who wish to elect inde-

pendent candidates.” Jd. at 570.° See also Hampton

County Election Comm’n, 470 U.S. at 174-181 (Section

5 applied to change in length of time between candidate

filing period and election); Dougherty County, 439 U.S.

at 37-43 & n.10 (school board rule requiring candidates

for office to take unpaid leave affected voting because it

“tends to deny some voters the opportunity to vote for a

candidate of their choosing”) (internal quotation marks

* Justice Harlan agreed in Allen that these changes affected vot-

ing, and were therefore covered by Section 5, even though he took

a different view of the scope of Section 5 than did the majority. He

reasoned that, “[sJince the Voting Rights Act explicitly covers

‘primary’ elections, see § 14(c)(1) [42 U.S.C. 19781(c) (1)]},” and

since the petition procedure for independent candidates was “the

functional equivalent of the political primary,” there was “no good

reason why it should not be included within the ambit of the Act.”

Allen, 393 U.S. at 592 (Harlan, J., concurring in part and dissenting

in part). Here, the party convention is the “functional equivalent

of the political primary.”

‘16

omitted); Fortune, 598 F. Supp. at 765 (change in vot-

ing membership of party éxecutive committee affected

voting because the committee controlled access to the

general election ballot in certain circumstances).

The Court has also recognized in an analogous context

that changes in a party’s nomination procedures may affect

voting in the general election. In United States v. Classic,

313 U.S. 299 (1941), the Court held that Congress may,

in exercising its constitutional power to regulate general

congressional elections (U.S. Const. Art. I, § 4), also

regulate congressional primary elections. 313 U.S. at 317-

321. The Court reasoned that the selection of a party’s

nominee for public office at a primary may “affect pro-

foundly the choice at the general election, even though

there is no effective legal prohibition upon the rejection

at the election of the choice made at the primary”; spe-

cifically, the exclusion of a candidate from the primary

may “operate to deprive the voter of his constitutional

right of choice” at the general election. Jd. at 319; see also

id. at 318 (Art. I, §2 applies to primaries where they

are “an integral part of the procedure of choice [of rep-

resentatives to Congress], or whcve in fact the primary

effectively controls the choice.”).

The same reasoning applies when a party chooses its

nominee by convention, rather than primary election. Jus-

tice Pitney (joined by Justices Brandeis and Clarke) made

this clear in his concurrence in Newberry v. United States,

256 U.S. 232 (1921). In a discussion endorsed by the

Court in Classic, 313 U.S. at 319, Justice Pitney con-

cluded in Newberry that Congress has the power to reg-

ulate “primary elections and nominating conventions” that

choose congressional candidates. 256 U.S. at 286 (Pitney,

J., concurring). He considered this power to be neces-

sarily implied in Congress’s authority to regulate general

elections because, “[a]s a practical matter, the ultimate

choice of the mass of voters is predetermined when the

nominations have been made.” Jbid.

17

C. The District Court Erred In Holding That Section

5 Never Applies To Party Conventions

1. The district court erred in holding that Section 5

never applies to “a chaage in political party rules dealing

not with primary elections, but instead with a party con-

vention, canvass, or mass meeting.” J.S. App. A8. In

construing the scope of the Fifteenth Amendment, this

Court has declined to allow “a variation of result” to

follow “from so slight a change in form.” Smith v. All-

wright, 321 U.S. 649, 661 (1944). Similarly, the Court

has held that “the form of a change in voting procedures

cannot determine whether it is within the scope of § 5.”

Hampton County Election Comm'n, 470 U.S. at 178;

see also Riddell v. National Democratic Party, 508 F.2d

770, 774 (Sth Cir. 1975); cf. Newberry, 256 U.S. at 286-

287 (Pitney, J., concurring).

The district court ignored those principles. Whether a

party selects a nominee at a primary or at a convention,

it is exercising a state-delegated public electoral function

if the nominee gains automatic access to the general elec-

tion ballot. In either case, moreover, changes in the nom-

ination process may affect voting in the general election

by affecting the choices available to voters in that election.

Under the district court’s decision, however, Section 5

would not apply to a change in party rules, even if the

change had a significant, discriminatory effect on voting

in the general election, as long as the change related to the

convention process.

The district court’s decision thus permits a political

party to avoid Section 5’s preclearance requirement simply

by selecting its nominees in a convention rather than a

primary election. The initial change from a primary to a

convention process would have to be precleared. See

Presley, 502 U.S. at 501-503. But once the process is in

place, the district court’s decision would allow the party

to adopt any kind of exclusion, no matter how invidious,

18

without having to preclear it. A party could, for example,

even adopt a rule excluding black voters from serving as

voting delegates to its convention. “The only recourse for

the minority group members affected by such changes

would be the one Congress implicitly found to be unsatis-

factory: repeated litigation.” Board of Comm'rs, 435

U.S. at 125. The district court’s decision leads to con-

sequences that Section 5 was designed to prevent.

2. In holding that Section 5 does not apply to party

conventions, the district court relied on this Court’s sum-

mary affirmance of Williams vy. Democratic Party, No.

16286 (N.D. Ga. Apr. 6 1972), summarily aff'd, 409

U.S. 809 (1972). See J.S. App. Al0. Williams, how-

ever, does not support the district court’s decision.

In Williams, the district court held that Section 5 did

not apply to a party’s decision to change its method of

selecting delegates to the party’s national convention from

an appointment system to a system under which delegates

were chosen in open convention. The court stated that

it was “convinced that voting rights connected with the

delegate election process are the type of rights Congress

intended to safeguard,” and it quoted portions of the Act’s

legislative history stating that the election of delegates to

party conventions would be covered by Section 5. See

Williams, slip op. 4. The court reasoned, however, that,

because the Act does not expressly authorize political par-

ties to obtain preclearance, it provided “no way for the

State Party to gain the required federal approval.” Slip

op. 5. Based on that understanding of the Act, the court

concluded that Congress must not have intended the Vot-

ing Rights Act to apply to the changes adopted by the

party. Ibid.

Although Williams concerned rules for a party conven-

tion, its reasoning would extend to rules for a party pri-

mary. In either context, such rules would fall outside Sec-

tion 5 because the party could not “gain the required fed-

eral approval” of them. Williams, slip op. 5. Thus, the

19

reasoning of Williams conflicts with the recognition of the

district court in this case that Section 5 does cover some

changes in a party’s rules for primary elections. See J.S.

App. A8. More importantly, the reasoning of Williams

cannot be reconciled with decisions of this Court after

Williams holding that Section 5 “applies to all entities

baving power over any aspect of the electoral process

within [covered] jurisdictions.” Board of Comm'rs, 435

U.S. at 118; Dougherty County, 439 U.S. at 44.

Williams rested on a premise—that political parties

cannot obtain preclearance of party rule changes—that

is no longer true, if it ever was. Although the regulations

»p'ementing Section 5 did not explicitly so provide

‘vhen Williams was decided, they now provide that “[a]

change effected by a political party * * * may be sub-

mitted by an appropriate official of the political party.”

28 C.F.R. 51.23(b). Because the lower court’s decision

in Williams is inconsistent with later decisions of this

Court and rests upon a factual premise that no longer

obtains, this Court’s summary affirmance in Williams

does not control the present case.

D. Section 5 Applies To Party Conventions In A Work-

able Manner

This Court has said that Section 5 should be construed

to provide a “workable standard to determine when pre-

clearance is required” under Section 5. Presley, 502 US.

at 505. The Attorney General’s regulation provides a

workable standard for determining when changes in the

rules for a party convention must be precleared under

Section 5.”°

10 Indeed, the very existence of the regulation distinguishes this

case from Presley. The Attorney General had expressly refused

to issue a regulation governing the type of change at issue in

Presley—reallocation of authority among government officials—

because he did “not believe that a sufficiently clear principle ha[d]

20

1. Political party conventions generally have three

principal purposes: to nominate candidates to appear on

the general election ballot; to draft the party platform;

and to amend or adopt rules governing the administration

of the party. Under the Attorney General’s regulation,

Section 5 applies to nomination-related activities; Section

5 does not, however, apply to any platform-drafting activi-

ties or to most administrative activities. That is because,

for the most part, it is only in carrying out nomination-

related activities that a party exercises a state-delegated

public electoral function in a manner that may affect vot-

ing in the general election.”

Thus, party decisions about who may select the nominee

are subject to Section 5 under the Attorney General’s

regulation. Cf. Henderson v. Graddick, 641 F. Supp.

1192, 1195, 1201 (M.D. Ala. 1986) (three-judge court)

(per curiam) (Section 5 covers change from open to

closed primary). So are decisions about the rules for

nomination—regarding, for example, whether a ma-

jority, supermajority, or plurality vote is required for

nomination—and about the rules governing the apportion-

ment of voting power among delegates. Cf. Port Arthur

v. United States, 459 U.S. 159, 165-168 (1982) (Section

5 covers majority-vote requirement for at-large city coun-

cil seats); Georgia v. United States, 411 U.S. 526, 531-

535 (1973) (Section 5 covers reapportionment). Such

decisions affect the way in which party adherents select

the party’s nominee, and they therefore also affect the

yet emerged distinguishing covered from noncovered reallocations.”

52 Fed. Reg. 486, 488 (1987) (notice of final rule). By contrast,

the Attorney General delineated a sufficiently clear principle to dis-

tinguish covered from noncovered political party activities in 28

C.F.R. 51.7, and has applied the regulation to such activities for

more than decade. Appellees do not claim that the application of

that regulation has interfered unduly with political parties.

11 Because local mass meetings are simply an earlier step in the

party’s exercise of its nominating function, the discussion in the

text applies to rules governing them as well.

21

choices voters have at the general election. Moreover,

those decisions have the potential to discriminate against

minorities in the party and in the general electorate. See

Dougherty County, 439 U.S. at 42.”

Many activities at a political party convention, how-

ever, are not subject to Section 5 under the Attorney

General’s regulation. Changes in the rules for drafting a

party platform, for example, are not covered. See 28

C.F.R. 51.7. Although such changes might conceivably

affect selection of the party’s nominee—for example, by

influencing the platform’s substance and thereby inducing

delegates to choose a candidate who agrees with its sub-

stance—that effect would not trigger Section 5 coverage

for two reasons. First, the effect of a change in platform-

drafting rules on voting in the general election would be

remote and speculative; it would not have a “direct rela-

tion to, or impact on, voting.” Presley, 502 U.S. at 506.

Second, such a change reflects an exercise of the party’s

power to determine the political positions it will advo-

cate, a power that the party possesses independently of

its state-delegated authority to place a candidate on the

general election ballot. For similar reasons, rules for con-

vention debates are ordinarily not covered by Section 5

under the Attorney General’s regulation.

Finally, most changes in the rules for the party’s in-

ternal administration need not be precleared under the

Attorney General’s regulation. Those rules usually reflect

the party’s inherent power, like that of other associations,

to regulate its day-to-day-operations. As such, they ordi-

12 For similar reasons, when one of the purposes of a convention

is to nominate a candidate whose name will appear on the general

election ballot, the party’s choice of where and when to hold its

convention is covered by Section 5. Cf. Perkins v. Matthews, 400

U.S. 379, 387-388 (1971) (location of polling places is covered).

Such choices might well have a discriminatory purpose if, for

example, convention sites are selected “at distances remote from

black communities or at places calculated to intimidate blacks from

entering.” Id. at 388. :

22

narily fall outside Section 5, unless they relate to the

performance of a state-delegated public electoral function

or elections for party office. See pp. 9-13, supra; see also

42 U.S.C. 1973l(c)(1) (“voting” defined to include vot-

ing in elections for “party office”). In particular, pre-

clearance generally would not be required for changes

with respect to “the recruitment of party members” or

“the conduct of political campaigns.” 28 C.F.R. 51.7

2. Appellees contend that Section 5 cannot be applied

to conventions in a workable manner because it is difficult

for the Party to obtain preclearance of its convention

rules. See Mot. to Affirm or Dismiss 5-8; Appellees’ Suppl.

Br. 4-9. They point out that, under the Party’s current

procedures, rules for a nominating conventions are not

finally adopted until the convention itself takes place.

That fact, however, does not justify construing Section 5

to exclude all changes in convention rules.

Nothing requires the Party to adopt its procedures at

the convention; it could adopt those convention rules sub-

ject to Section 5 sufficiently in advance of the convention

to permit preclearance. Indeed, the Party’s decision to

charge the fee at issue here was announced six months

before the convention. See Johnson Aff. ¢ 16 & Exh. B.

The Party could also adopt other nomination-related rules

ahead of time. Thus, the Party’s purported difficulties in

complying with the preclearance requirement “are largely

of [its] own making.” Hampton County Election Comm'n,

470 U.S. at 180; see also id. at 179-180 (covered juris-

diction cannot avoid preclearance requirement by enacting

voting changes meant to take effect before Attorney Gen-

eral completes administrative review ).”

18JIn addition, Section 5 provides for expedited review by the

Attorney General “upon good cause shown.” 42 U.S.C. 1973c; see

28 C.F.R. 51.34.

23

E, Section 5 Does Not Unconstitutionally Interfere

With A Party’s Freedom Of Association

The Party claims that application of Section 5 to

changes in its convention rules would violate its freedom

of association. Mot. to Affirm or Dismiss 10, citing, inter

alia, Democratic Party of United States v. Wisconsin ex

rel. LaFollette, 450 U.S. 107, 122 (1981). As discussed

above, however, Section 5 applies only to political party

activities that involve the exercise of a state-delegated pub-

lic electoral function. The application of Section 5 to

such activities does not unconstitutionally interfere with

a party’s freedom of association.

In Smith v. Allwright, supra, this Court rejected a

claim strikingly similar to that asserted by the Party in

this case. In Allwright, black voters argued that a rule of

the Texas Democratic Party barring them from voting in

the party’s primary election violated the Fourteenth and

Fifteenth Amendments. The party “defended [the rule]

on the ground that the Democratic party of Texas is a

voluntary organization with members banded together for

the purpose of selecting individuals of the group represent-

ing the common political beliefs as candidates in the gen-

eral election. As such a voluntary organization, it was

claimed, the Democratic party is free to select its own

membership and limit to whites participation in the party

primary.” 321 U.S. at 657.

This Court rejected that defense. It held that, because

the party’s primary election was “a part of the machinery

for choosing officials,” Allwright, 321 U.S. at 664, the

party’s rule excluding blacks from voting in the primary

was subject to the Fifteenth Amendment. The Court rea-

soned that “[t]he privilege of membership in a party may

be * * * no concern of a State. But when, as here, that

privilege is also the essential qualification for voting in a

primary to select nominees for a general election, the

State makes the action of the party the action of the

State.” Id. at 664-665. In Terry v. Adams, supra, the

24

Court relied on Allwright to declare unconstitutional an

unofficial “pre-primary” election held by the Jaybird

Democratic Association of Texas from which black voters

were excluded. See 345 U.S. at 470; id. at 481-484

(Clark, J., concurring).

Allwright and Terry demonstrate that when a political

party performs a public electoral function, its freedom of

association interests do not prevail over the requirements

of the Fifteenth Amendment. Because “the Framers indi-

cated that Congress was to be chiefly responsible for

implementing the rights created in” that Amendment,

South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966),

this rule extends to statutes, such as the Voting Rights

Act, passed under Congress’s “remedial powers to ef-

fectuate the constitutional prohibition against racial dis-

crimination in voting.” Ibid.

Indeed, this Court has never found a violation of a

political party’s associational rights in the enforcement of

a statute designed to prevent racial discrimination in vot-

ing. Decisions of this Court finding such a violation have

expressly noted that the challenged government action was

not taken to prevent racial discrimination. See, e.g., Eu

v. San Francisco County Democratic Central Comm., 489

U.S. 214, 232 (1989) (citing Smith v. Allwright, supra);

O’Brien v. Brown, 409 U.S. 1, 4.0.1 (1972) (per curiam)

(citing Terry v. Adams, supra; Smith v. Allwright,

supra); see also Ripon Society, Inc. v. National Republi-

can Party, 525 F.2d 567, 588 (D.C. Cir. 1975) (en

banc) (opinion of McGowan, J.) (“There are no racial

or other invidious classifications here. If there were, the

Party’s entitlement to constitutional protection would be

as slight as those of the victims would be strong.”) (foot-

note omitted), cert. denied, 424 U.S. 933 (1976).™

14 Under this Court’s decisions, political parties have a constitu-

tionally protected interest in deciding whether a party primary

should be limited to party members or should be open to indepen-

dent voters. See Tashjian v. Republican Party of Connecticut, 479

U.S. 208, 215-216 (1986). Still, a party must preclear any decision

25

II. PRIVATE PARTIES MAY INVOKE THE REME-

DIES AGAINST UNLAWFUL POLL TAXES IN

SECTION 10 OF THE VOTING RIGHTS ACT

The three-judge court in this case held that private par-

ties cannot avail themselves of the remedies against unlaw-

ful poll taxes in Section 10 of the Act. J.S. App. All-

Al2. The court based that holding on the fact that (1)

Section 10 does not expressly authorize private actions;

and (2) Section 10 does expressly authorize actions by

the Attorney General. The court’s holding is at odds with

this Court’s decision in Allen.

In Allen, the Court held that private parties may

obtain declaratory and injunctive relief against changes

in voting that have not been precleared as required by

Section 5. 393 U.S. at 555. The Court recognized that

“(t]he Voting Rights Act does not explicitly grant * * *

private parties” authority to enforce Section 5. 393 US.

at 554. The Court found implicit authority for private

enforcement, however, in the language of Section 5, an-

alyzed “in light of the major purpose of the Act.” 393

U.S. at 555. The Court reasoned that “[t]he guarantee

of §5 that no person shall be denied the right to vote for

failure to comply with an unapproved new enactment

subject to § 5, might well prove an empty promise unless

the private citizen were allowed to seek judicial enforce-

ment of the prohibition.” Jd. at 557. Accordingly,

the Court determined that “the specific references” in

Section 12 of the Act, 42 U.S.C. 1973j, to actions by the

Attorney General to enforce Section 5 “were included to

to change from an open to a closed primary, or vice versa, see

Henderson v. Graddick, 641 F. Supp. 1192, 1195, 1201 (M.D. Ala.

1986) (three-judge court) (per curiam). The Attorney General

has on several occasions precleared parties’ decisions to make such

changes. These preclearance decisions include: Green Party of

Alaska (June 25, 1992); Democratic Party of Alaska (Feb. 28,

1992); Republican Party of Alaska (May 21, 1991); Republican

Party of Alaska (Sept. 18, 1990).

26

give the Attorney General power to bring suit to enforce

what might otherwise be viewed as ‘private’ rights,” and

not to bar private enforcement actions. 393 U.S. at 555

n.18.*

Allen strongly supports the conclusion that private

parties may seek judicial enforcement of Section 10. Sec-

tion 10 explicitly recognizes the right of each citizen to

be free from unconstitutional poll taxes. 42 U.S.C.

1973h(a). That right likewise “might well prove an

empty promise unless the private citizen were allowed to

seek judicial enforcement of the prohibition.” Allen, 393

U.S. at 557. Accordingly, the provision in Section 10

authorizing enforcement by the Attorney General should

be construed as giving her power to enforce “what might

otherwise be viewed as ‘private’ rights,” Allen, 393 U.S.

at 555 n.18, and should not be construed to bar private

enforcement of that Section.

In defending the district court’s contrary holding, the

Party observes that Section 10 does not create a sub-

stantive right to be free from poll taxes but instead

merely provides a remedy for enforcing the proscription

against poll taxes in the Fourteenth and Twenty-Fourth

Amendments. Mot. to Affirm or Dismiss 16-17. That

observation, while true, is beside the point. The Court

in Allen rejected as irrelevant the argument that Section 5

did not create a substantive right but merely provided a

remedy for violations of the Fifteenth Amendment (393

U.S. at 556 n.20):

Appellees argue that §5 * * * gave citizens no

new “rights,” rather it merely gave the Attorney

General a more effective means of enforcing the

15 Section 2 of the Act (42 U.S.C. 1973), like Section 5, does

not expressly authorize private enforcement actions, and it is

expressly enforceable by the Attorney General under Section 12.

Although this Court has not explicitly addressed whether Section 2

authorizes private enforcement actions, it has repeatedly enter-

tained such actions. See, e.g., Johnson v. De Grandy, 114 S. Ct.

2647 (1994).

27

guarantees of the Fifteenth Amendment. It is un-

necessary to reach the question of whether the Act

creates new “rights” or merely gives plaintiffs seeking

to enforce existing rights new “remedies.” However

the Act is viewed, the inquiry remains whether the

right or remedy has been conferred upon the private

litigant.

Similarly, the fact that Section 10 does not confer any

new right on individual voters—but only creates a rem-

edy for violations of the Fourteenth and Twenty-Fourth

Amendments—does not answer the question whether in-

dividual voters may avail themselves of that remedy. Allen

dictates an affirmative answer to that question.”

CONCLUSION

The judgment of the three-judge district court should

be reversed.

Respectfully submitted.

Drew S. Days, ITI

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

STEVEN H. ROSENBAUM

SAMUEL R. BAGENSTOS

MARCH 1995 Attorneys

16 We believe the dismissal of the Section 10 claim cannot be

upheld on the alternative ground advanced by appellees, but not

addressed by the three-judge court, that the Party’s fee require-

ment is not a “poll tax.” Mot. to Affirm or Dismiss 18. Appellants’

complaint alleges a “poll tax * * * or substitute therefor” within

the meaning of Section 10(b), 42 U.S.C. 1978h(b).

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