Petition for Writ of Certiorari — Board of Public Education v. Lucas

Supreme Court brief1991

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90-1 I 07 4 jan 22 1991

7 —_— —= , SSEPHEPRSPANIOL, JR

CLERK

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1990

THE BOARD OF PUBLIC EDUCATION and

ORPHANAGE FOR BIBB COUNTY, et al.,

“ Petitioners,

DAVID LUCAS, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

TETITION FOR A WRIT OF CERTIORARI

FRANK CATER JONES *

STEPHANIE E. PARKER

DAVID C. NUTTER

KING & SPALDING

2500 Trust Company Tower

Atlanta, Georgia 30303

(404) 572-4600

W. WARREN PLOWDEN, JR.

CRAIG N. COWART

JONES, CORK & MILLER

P.O. Box 6437

500 Trust Company Bank Bldg.

Macon, Georgia 31208-6437

(912) 745-2821

EDWARD S. SELL, JR.

SELL & MELTON

1414 Charter Medical Bldg.

P.O. Box 229

Macon, Georgia 31297-2899

(912) 746-8521

* Counsel of Record Counsel for Petitioners

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

Under Georgia law, elected school boards are given ex-

clusive authority to decide whether capital improvement

projects will be undertaken and how they will be financed.

If a school board (or any other local governmental body

in Georgia) decides to fund a capital improvement

through bonded indebtedness, the issuance of the bonds

must be approved by the voters in a referendum.

The questions presented by this petition are:

1. Whether the Court of Appeals improperly expanded

Section 2 of the Voting Rights Act (which pro-

hibits any voting qualification, prerequisite to vot-

ing or standard, practice or procedure abridging

the right to vote) by empowering voters themselves,

in contravention of the exclusive authority vested

in elected school boards, to challenge a policy deci-

sion of a school board as to what bond issues tu

submit to the voters?

2. Whether the Court of Appeals’ ruling under Section

2 of the Voting Rights Act is inconsistent with this

Court’s summary affirmance in this case of a three-

judge district court’s ruling under Section 5 of the

Voting Rights Act that a school board’s decision as

to what bond issues to submit to the voters is not a

voting qualification, prerequisite to voting or stand-

ard, practice or procedure with respect to voting?

(i)

THE PARTIES

The petitioners before this Court are the Board of

Public Education and Orphanage for Bibb County;

Stephen Massey in his official capacity as President of

the Board of Education; the Bibb County Board of Com-

missioners; Larry Justice in his official capacity as Chair-

man of the Bibb County Board of Commissioners; the

Macon-Bibb County Board of Elections; A. B. Caldwell

in his official capacity as Chairman of the Macon-Bibb

County Board of Elections; and Bernard Fletcher in his

official capacity as Superintendent of the Macon-Bibb

County Board of Elections. The respondents before this

Court are David Lueas, Willie Davis, Jr., Connie Cater,

Corlis McKenzie and Ronnie T. Miley.

TABLE OF CONTENTS

Page

GUEBSLIONS PRESENTED ..........................c0...c....ccces00: i

seals iuluienaeauiibiessslesioammed il

gg |, V

a cscccuchbupesucnctaenconcessessees are 2

ET RE 2

NI i cccaneensccececnneccccncacaveasccsesces 2

SLALOM: OF THE CASE ......................................... 3

REASONS FOR GRANTING THE WRIT _.......... = 7

I. THE COURT OF APPEALS’ DECISION IN-

VADES THE LEGISLATIVE DISCRETION

OF VALIDLY ELECTED LOCAL GOVERN-

MENTAL BODIES AND IMPROPERLY RE-

STRICTS THE OPERATION OF LOCAL

Neen uauesbbcucuecemannauneeces 7

Il. THE COURT OF APPEALS’ DECISION IM-

PROPERLY EXPANDS THE REACH OF

THE VOTING RIGHTS ACT IN CONTRA-

VENTION OF THE LANGUAGE AND HIS-

TORY OF THE ACT AND CONFLICTS WITH

ESTABLISHED PRECEDENT OF THIS

Nee Te sickesaeisweenune SaaS 10

i os canissammunnmavenne 15

APPENDICES

Appendix A

Lucas v. Townsend, 908 F.2d 851 (11th Cir.

rc snunumuncnscnunaienn la

TABLE OF CONTENTS—Continued

Page

Appendix B

Lucas v. Townsend, 714 F. Supp. 525 (M.D.

ee raat nem nee rere 17a

Appendix C

Unpublished Order of the Eleventh Circuit

denying petition for rehearing in Lucas v.

Townsend, 908 F.2d 851 (11th Cir. 1990) ...... 36a

Appendix D

Lucas v. Townsend, 698 F. Supp. 909 (M.D.

eg es Pe eeree ee 38a

Appendix E

Lucas v. Townsend, 732 F. Supp. 1581 (M.D.

nc I Wd II i eccetekccnaescarcudivaninpaemeniconicenccusc 44a

Appendix F ;

Lucas v. Townsend, 110 S. Ct. 858 (1990)...... 46a

TABLE OF AUTHORITIES

Cases Page

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

563-67 (1969) _.......... ee a ea ee 10, 11

Delgado v. Smith, 861 F.2d 1489, 1492 (11th Cir.

1988), cert. denied, 109 S. Ct. 3243 (1989)... = 10

Dougherty County, Georgia Board of Education v.

fe 6D OF ae | ne en cence 11, 12

Georgia v. United States, 411 U.S. 526 (1973)... 11

Hadnot v. Amos, 394 U.S. 358 (1969) _....0 11

Hart v. Board of Education, 299 Mo. 36, 252 S.W.

SRR PR eR SNe. Pee OE 8

Hicks v. Miranda, 422 U.S. 332 (1975) ................... 13

Lucas v. Townsend, 698 F. Supp. 909 (M.D. Ga.

1988), aff'd mem., 110 S. Ct. 858 (1990)... 4, 5, 18

Mandel v. Bradley, 432 U.S. 173 (1977) .......0...... 13

Miles v. State, 96 Ga. App. 610, 614, 101 S.E.2d

RF, Re AR ere oe ee 8

Perkins v. Matthews, 400 U.S. 379 (1971) _........... 11

Thornburg v. Gingles, 478 U.S. 30, 38 (1986)... 1l

United States v. Board of Commissioners of Shef-

pe OS RB Oe, | ne renee 14

Wells v. Banks, 153 Ga. App. 581, 266 S.E.2d 270

PIE cacscaceckerestuceseuatgetecacnaateismacsciuiccaie aaa ae saad 3,7

Whitcomb v. Chavis, 403 U.S. 124, 154-55 (1971)... 10

White v. Dougherty County Board of Education,

579 F. Supp. 1480 (M.D. Ga. 1984), aff'd mem.,

A's eo | eee 12

Statutes

28 U.S.C.A. § 1254(1) (West Supp. 1990) _............ 2

Voting Rights Act of 1965 § 2, 42 U.S.C.A. § 1973

ao 8 Teh Re lh oan ort passim

Voting Rights Act of 1965 §5, 42 U.S.C.A.

4 | SE ee il it ee ee ee passim

Official Code of Georgia Annotated § 20-2-50 3.7

Official Code of Georgia Annotated § 20-2-430 8

Official Code of Georgia Annotated § 20-2-520 _.... 3, 7

Other Authorities

i aC i tteasencccnes 3, 8

S. Rep. No. 417, 97th Cong., 2d Sess., 28 reprinted

in, 1982 U.S. Code Cong. & Ad. News 206

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

THE BOARD OF PUBLIC EDUCATION and

ORPHANAGE FOR BIBB COUNTY, et al.,

. Petitioners,

DAviIp LUCAS, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

The Board of Public Education and Orphanage for

Bibb County; Stephen Massey in his official capacity as

President of the Board of Education; the Bibb County

Board of Commissioners; Larry Justice in his official

capacity as Chairman of the Bibb County Board of Com-

missioners; the Macon-Bibb County Board of Elections;

A. B. Caldwell in his official capacity as Chairman of the

Macon-Bibb County Board of Elections; and Bernard

Fletcher in his official capacity as Superintendent of the

Macon-Bibb County Board of Elections (collectively the

“Board” or the “School Board’) respectfully petition for

a writ of certiorari to review the decision of the United

States Court of Appeals for the Eleventh Cireuit in

this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 908

F.2d 851 and is reprinted as Appendix A to this Peti-

tion. The Order of the District Court is reported at 714

F. Supp. 525 and is reprinted as Appendix B. The un-

published Order of the Court of Appeals denying the

Petition for Rehearing is reprinted as Appendix C.

The Orders of the District Court of three judges, con-

vened under Section 5 of the Voting Rights Act, are re-

ported at 698 F. Supp. 909 and 732 F. Supp. 1581 and

are reprinted as Appendices D and E. The Decision of

this Court summarily affirming the judgment of the Dis-

trict Court of three judges is reported at 110 S. Ct. 858

and is reprinted as Appendix F.

JURISDICTION

The opinion of the Court of Appeals was entered on

August 9, 1990. 908 F.2d 851 (App. A). A timely

Petition for Rehearing was denied on October 30, 1990.

(App. C). This Court has jurisdiction under 28 U.S.C.A.

Section 1254(1) (West Supp. 1990).

STATUTE INVOLVED

This case involves Section 2 of the Voting Rights Act

of 1965, 42 U.S.C.A. § 1973 (West Supp. 1990), which

provides: :

‘a) No voting qualification or prerequisite to voting or

standard, practice, or procedure shall be imposed

or applied by any State or political subdivision in

a manner which results in a denial or abridgement

of the right of any citizen of the United States to

vote on account of race or color, or in contraven-

tion of the guarantees set forth in Section 1973b

(f' (2) of this title, as provided in subsection (b)

of this section.

‘bi A violation of subsection (a) of this section is

established if, based on the totality of circum-

’ 3

stances, it is shown that the political processes lead-

ing to nomination or election in the State or politi-

cal subdivision are not equally open to participa-

tion by members of a class of citizens protected

by subsection (a) of this section in that its mem-

bers have less opportunity than other members of

the electorate to participate in the political process

and to elect representatives of their choice. The

extent to which members of a protected class have

been elected to office in the State or political sub-

division is one circumstance which may be con-

sidered: Provided, That nothing in this section

establishes a right to have members of a protected

class elected in numbers equal to their proportion

in the population.

STATEMENT OF THE CASE

County school boards in Georgia are vested with broad

authority to govern, manage and control local schools and

to “make all arrangements necessary to the efficient op-

eration of the schools.” 0O.C.G.A. $§ 20-2-520, 20-2-50;

Wells v. Banks, 153 Ga. App. 581, 266 S.E.2d 270

(1980). Pursuant to this authority, the Board adopted

a comprehensive capital improvement plan to air condi-

tion 17 existing schools, construct a new high school and

a new middle school,' and renovate an existing high

school for use as a magnet school. 908 F.2d 851, 852

(App. A at 2a); 714 F. Supp. 525, 526 (App. B at

17a-18a). To fund this plan, the Board decided to issue

$29 million of bonded indebtedness.

Under Georgia law, a decision by a school board or

other local governmental body to issue bonds must be

approved by the voters through a referendum. Ga. Const.

art. IX, $V, (1. Accordingly, the Board scheduled a

bond referendum for November 8, 1988, in connection

with a general election on that date. 908 F.2d at 853

1 The new schools were to serve student bodies of approximately

50° black students and 50° white students. Lucas v. Townsend,

714 F. Supp. 525, 526 (M.D. Ga. 1989) (App. B at 17a).

ogo

(App. A at 4a). The question to be presented to the

voters in the referendum was as follows:

SHALL GENERAL OBLIGATION SCHOOL BONDS

IN THE AMOUNT OF $29 MILLION BE ISSUED

BY BIBB COUNTY?

Acting upon the Board’s request, the Attorney Gen-

eral of the United States precleared the referendum date

under Section 5 of the Voting Rights Act of 1965, 42

U.S.C.A. § 1973¢ (the “Act’’). 908 F.2d at 853 (App. A

at 4a). Prior to that date, respondents, who are regis-

tered voters in Bibb County, sued the Board to enjoin

the bond referendum under Section 5 of the Act. Re-

spondents argued that the Board’s decision to submit

the $29 million bond issue to the electorate as a single,

combined question—rather than having a separate ques-

tion on each component of the capital improvement plan

—constituted a “voting qualification or prerequisite to

voting, or standard, practice, or procedure with respect

to voting” under Section 5, 42 U.S.C.A. $1973c. 908

F.2d at 852-53 (App. A at 3a).

A district court of three judges (the “Three-Judge

Court”) was convened pursuant to Section 5. In re-

sponse to the Three-Judge Court’s invitation, the At-

torney General of the United States filed a brief as

amicus curiae. The Attorney General took the position

that the decision to include funding for several related

projects in a single bond issue was not a voting qualifi-

cation or prerequisite to voting, or standard, practice,

or procedure with respect to voting under Section 5.

Adopting the Attorney General’s position, the Three-

Judge Court denied respondents’ motion for a prelimi-

/ nary injunction and held that the Board’s decision to

submit the $29 million bond issue to the electorate as

one question was simply a “normal legislative decision

unrelated to the process of holding elections.” 698 F.

Supp. 909, 912 (quoting Brief for the United States as

Amicus Curiae in the United States District Court for

Se =

the Middle District of Georgia at 16) (App. D at 43a).

The court also concluded that the Board formulated the

question in a manner consistent with Georgia law as it

had existed both before and after the benchmark date

contained in Section 5. Jd. (App. D at 43a).

On November 8, 1988, the referendum took place as

scheduled and was approved by the voters. 908 F.2d at

853 (App. A at 5a). On March 7, 1989, the Three-Judge

Court issued a Final Order entering judgment against

respondents on their Section 5 claim. 732 F. Supp. 1581

(App. E at 45a).

Respondents appealed to this Court. The Attorney

General was again invited to file a brief as amicus

curiae. The Attorney General took the same position as

in the lower court, again expressing the view that this

type of discretionary decision “concerning the content of

a bond issuance referendum did not require preclearance

because it was not a voting matter within the purview

of Section 5.” (Brief for the United States as Amicus

Curiae in the Supreme Court of the United States at

11). On January 22, 1990, this Court summarily af-

firmed the judgment of the Three-Judge Court denying

respondents’ claim for relief under Section 5. Lucas v.

Townsend, 110 S. Ct. 858 (1990) (App. F at 46a).

Having failed under Section 5, respondents then ai-

tempted to persuade a single-judge district court (the

“District Court”) that the conduct found not to be a

“standard, practice, or procedure” affecting voting under

Section 5, was nevertheless a “standard, practice or pro-

cedure” abridging the right to vote under Section 2 of

the Act. The District Court rejected respondents’ argu-

ment and held that the exercise of discretion by validly

elected local bodies in deciding to fund a comprehensive

capital improvement plan through a single bond issue was

not a standard, practice or procedure abridging the right

to vote. 714 F. Supp. 525, 534 (App. B at 35a). As the

District Court explained:

The Voting Rights Act addresses the right to vote;

it does not address the deliberative process of local

or state boards. ... Elected bodies like the School

Board of Bibb County, comprised of individuals nom-

inated and elected in presumably valid elections in

which all voters had an equal opportunity to partici-

pate, must be afforded some freedom to engage in

the traditional political tools of consensus-building

and compromise to effectuate comprenhensive plans

for school and community development and improve-

ment. Government in the United States, be it fed-

eral, state or local, takes the form of representative

democracy. That does not mean, of course, that rep-

resentatives once elected are free to disregard the

law; however, the functioning of a representative

democracy must be contrasted with the functioning

of a pure democracy. Representatives are elected to

pursie an agenda which benefits the community at

large. They may be re-elected or cast out of office,

depending upon their performance or lack thereof.

This scheme of government does not contemplate a

vote by every individual on every single issue in iso-

lation or in the abstract. ...

To accept [respondents]’ position in this matter is

to invite chaos. Any and all matters which are to be

submitted to the electorate for its approval or dis-

approval, be that matter a proposal by a local board

for a bond issue to construct a new high school or

be it an amendment proposed by a state legislature,

would be subject to challenge under the Voting Rights

Act. This Court finds [respondents]’ position un-

founded either in law or in logic.

714 F. Supp. at 532-33 (App. B at 30a-32a) ‘(emphasis

added .

Respondents appealed to the United States Court of Ap-

peals for the Eleventh Circuit. Despite the fact that this

Court had summarily affirmed the Three-Judge Court’s

decision denying respondents’ claim under Section 5, and

even though the Attorney General had twice filed amicus

curiae briefs disagreeing with respondents’ contention,

the Eleventh Circuit issued a 2-1 decision on August 9,

1990, reversing the judgment of the District Court. 908

F.2d 851 (App. A).

Rejecting the reasoning of the Attorney General, the

Court of Appeals held in essence that the very same ac-

tion that was not a standard, practice or procedure affect-

ing voting under Section 5, was a standard, practice or

procedure having the potential to abridge the right te vote

under Section 2. 908 F.2d at 857-58 (App. A at 13a-14a).

Even though state law vests the Board with the exclusive

authority to decide what bond issues to submit to the

voters, the Court of Appeals held that “[m]inority com-

munities have the right to vote for or against the propo-

sitions of their choice just as they have the right to a

fully effective vote to elect candidates of their choice.”

908 F.2d at 858 (App. A at 14a) (emphasis added).

In dissent, former Chief Judge Roney adopted the rea-

soning of the District Court and the Attorney General

that the exercise of discretion by a validly elected local

governmental body in deciding to fund a comprehensive

capital improvement plan through a single bond issue is

not a standard, practice, or procedure abridging the right

to vote. /d. at 858-59 (App. A at 16a).

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS’ DECISION INVADES

THE LEGISLATIVE DISCRETION OF VALIDLY

ELECTED LOCAL GOVERNMENTAL BODIES AND

IMPROPERLY RESTRICTS THE OPERATION OF

LOCAL GOVERNMENT.

Georgia law vests local county school boards with broad

authority to govern, manage and control local schools and

to “make all arrangements necessary to the efficient op-

eration of the schools.” O.C.G.A. $£ 20-2-520, 20-2-50;

Wells v. Banks, 153 Ga. App. 581, 266 S.E.2d 270 (1980).

Thus, the Board is vested with the discretion to decide

how to manage the schools, including how to fund capital

improvements. The voters exercise control over the Board

through elections of Board members.? If voters are dis-

satisfied with the performance of the Board, they may cast

their votes to elect new members. The only local govern-

ment issue on which voters have a direct voice is a deci-

sion by a local governmental body to incur bonded debt,

which must be approved by the voters through a referen-

dum. Ga. Const. art. IX, $V, { I. The decision as to

what bond issue(s) to propose to the voters, however,

rests exclusively with the school board. O.C.G.A, § 20-2-

430: Miles v. State, 96 Ga. App. 610, 614, 101 S.E.2d

173, 176 (1957) (quoting Hart v. Board of Education,

299 Mo. 36, 252 S.W. 441 (1923)).°

The Court of Appeals’ decision invalidates this system

of local representative government and purports to grant

to the voters themselves, as opposed to their validly elected

representatives, the right to decide what projects should

be submitted to the voters for approval. In essence, the

Court of Appeals’ decision creates a right to vote—on

what bond issues will be submitted to the voters—that

does not exist under state law.

“Bibb County is located in central Georgia. According to the

1980 census, it has a population of approximately 150,000. Approxi-

mately 38% of the County’s population is black. The Bibb County

Schoo] Board is a representative body of ten members elected by

the voters of that county. Six of the members of the Board are

elected from single member districts; two members are elected

county-wide; a representative of the Bibb County Board of Com-

missioners and the Mayor of Macon fill the other two voting seats

on the Board. The Board is composed of six whites (including one

county-wide seat) and four blacks (including one county-wide seat).

It is undisputed that the Board is properly composed under the

Voting Rights Act. (R. 2-62).

* Indeed, the Court of Appeals specifically acknowledged (and

respondents did not dispute) that Georgia law allows school boards

ty combine related projects in a single bond issue. 908 F.2d at 855

(App. A at 9a).

The Court of Appeals’ ruling improperly restricts the

operation of local governments. Local governmental bodies

will be unable to fund many necessary and worthwhile

projects that are in the best interests of the community

as a whole. Indeed, if the voters are permitted to decide

what capital improvement projects should be submitted to

them in a bond issue referendum, then it will be virtually

impossible for their elected representatives to forge the

coalitions and compromises necessary to fund most proj-

ects. The Board’s decision to fund a comprehensive cap-

ital improvement plan through a single bond issue is no

different from a legislative committee’s decision to in-

clude a certain combination of projects in an appropria-

tions bill. Both decisions involve the exercise of legisla-

tive discretion over substantive policy matters. Neither

constitute a policy, practice, or procedure abridging the

right to vote under the Act. Just as Congress and the

state legislatures depend on coalitions, compromises and

consensus to accomplish their legislative goals, local rep-

resentatives likewise depend on these legitimate legislative

tools to perform their public responsibilities. Such com-

promises do not abridge anyone’s right to vote. Each

voter, if dissatisfied with a component of a bond program,

may vote against the entire program.

The issue raised by this case affects thousands of local

governmental bodies throughout the United States. The

opinion of the Court of Appeals invades the legislative

discretion of such validly elected local governmental bod-

ies and undermines the most basic notions of local self

government on which this country is founded. This case

thus presents an important issue concerning the proper

scope of the Voting Rights Act that is worthy of resolu-

tion by this Court.

II. THE COURT OF APPEALS’ DECISION IMPROP-

ERLY EXPANDS THE REACH OF THE VOTING

RIGHTS ACT IN CONTRAVENTION OF THE LAN-

GUAGE AND HISTORY OF THE ACT AND CON-

FLICTS WITH ESTABLISHED PRECEDENT OF

THIS COURT.

Congress enacted the Voting Rights Act to ensure the

integrity of the registration and voting process. Allen v.

State Board of Elections, 393 U.S. 544 (1969) ; Delgado

v. Smith, 861 F.2d 1489, 1492 (11th Cir. 1988), cert.

denied, 109 S. Ct. 3242 (1989). The Act does not guar-

antee a particular political outcome, but ensures that the

political processes are equally open to participation by

all citizens. 42 U.S.C.A. § 1973(b) (West Supp. 1990) ;

Whitcomb v. Chavis, 403 U.S. 124, 154-55 (1971).

Never has Congress expressed an intent to expand the

Act to regulate policy decisions of validly elected repre-

sentatives, as the Court of Appeals’ decision purports to

do here. The Court of Appeals’ decision conflicts with

the language and history of the Act and is inconsistent

with prior decisions of this Court. Section 2 of the Act

by its terms regulates only voting procedures: ‘‘No vot-

ing qualification or prerequisite to voting or standard,

practice, or procedure shall be imposed or applied by any

State or political subdivision in a manner which results

in a denial or abridgement of the right of any citizen of

the United States to vote... .” 42 U.S.C.A. § 1973(a)

(West Supp. 1990). A violation of Section 2 occurs if

“the political processes leading to nomination or election

in the State or political subdivision are not equally open

to participation by members of a class of citizens pro-

tected by [the Act] in that its members have less oppor-

tunity than other members of the electorate to partici-

pate in the political process and to elect representatives of

their choice.” 42 U.S.C.A. $ 1973(b) (West Supp. 1990) .*

4 The language “voting qualification or prerequisite to voting or

standard, practice, or procedure” in Section 2 is virtually identical

The legislative history likewise indicates that Section 2

was intended only to protect “the right of minority voters

to be free from election practices, procedures or methods

that deny them the same opportunity to participate in

the political process as other citizens enjoy.” S. Rep. No.

417, 97th Cong., 2d Sess. 28 reprinted in 1982 U.S. Code

Cong. & Ad. News 206.

Consistent with the language and history of the Act,

this Court has repeatedly stated that the phrase ‘voting

qualification or prerequisite to voting, or standard, prac-

tice or procedure” in the Act refers to rules and laws

that embody election and voting procedures. See, e.g.,

Allen v. State Board of Elections, 393 U.S. 544, 563-67

(1969). Thus, the Act has been applied to procedural

rules affecting the registration of voters, id. at 565-67 &

n.31 (1969), the casting of votes, id. at 563, the tabula-

tion of votes, id., electoral system features such as at-

large eiections, id. at 569; United States v. Board of

Commissioners of Sheffield, 435 U.S. 110, 137-38 (1978),

candidate qualification requirements, Allen, 393 U.S. at

570; Dougherty County, Georgia Board of Education v.

White, 439 U.S. 32, 47 (1978); Hadnot v. Amos, 394

U.S. 358 (1969), reapportionment and _ redistricting

plans, Georgia v. United States, 411 U.S. 526 (1973);

Thornburg v. Gingles, 478 U.S. 30 (1986), and changes

in the location of polling places, Perkins v. Matthews,

400 U.S. 397 (1971).

No other court has adopted the Court of Appeals’

overly-broad interpretation of the Act. Indeed, this Court

has twice summarily affirmed decisions of three-judge

district courts under Section 5 refusing to expand the

Act’s coverage to policy decisions of local governmental

to the reference in Section 5 to “voting qualification or prerequisite

to voting, or standard, practice, or procedure with respect to voting.”

Compare 42 U.S.C.A. § 1973 (West Supp. 1990) with 42 U.S.C.A.

§ 19738c.

bodies. In White v. Dougherty County Board of Educa-

tion, 579 F. Supp. 1480 (M.D. Ga. 1984), aff'd mem.,

470 U.S. 1067 (1985), an employee of a county board

of education sued the board, alleging that the board’s

action denying him a leave of absence for political pur-

poses constituted a “policy, practice, or procedure with

respect to voting” in violation of Section 5 of the Act.

Rejecting the employee’s claim, the district court of three

judges held that the board’s refusal to alter its neutral

leave policy to allow employees elected to public office

greater time away from the job “does not possibly consti-

tute a Section 5 ‘standard, practice, or procedure.’” Id.

at 1493.5 This Court summarily affirmed the three-judge

district court’s ruling.

White is directly applicable here. Just as a neutral

personnel policy of a local school board does not consti-

tute a “standard, practice, or procedure” with respect to

voting under Section 5, the Board’s fiscal policy decision

to submit a comprehensive $29 million education bond is-

sue to the voters in a single referendum question does not

5 In an earlier lawsuit, the very same school board employee had

sued the board, alleging that the board’s Rule 58, which had re-

quired any school system employee who became a candidate for

public office to take a leave of absence without pay for the duration

of the candidacy, constituted a “policy, practice, or procedure with

respect to voting” under Section 5. A three-judge district court

agreed with plaintiff and enjoined the use of Rule 58. This Court

affirmed in a 5-4 decision. Dougherty County, Georgia, Board of

Education v. White, 489 U.S. 32 (1978). Since Rule 58 specifically

addressed the electoral process in the same manner as a filing fee

law, it was a “standard, practice, or procedure” under Section 5.

As this Court explained:

Rule 58 is not a neutral personnel practice governing all forms

of absenteeism. Rather, it specifically addresses the electoral

process, singling out candidacy for elective office as a disabling

activity. Although not in form a filing fee, the Rule operates in

precisely the same fashion.

Id. at 40. The Board rescinded Rule 58 before the filing of the

second lawsuit.

ee OP

constitute a “standard, practice, or procedure” abridging

the right to vote under Section 2.

Even more compelling than White is the decision of

the Three-Judge Court convened under Section 5 in the

present case. The Three-Judge Court rejected (under

Section 5) the very same claim that respondents now

raise under Section 2. The Three-Judge Court spe-

cifically held:

[T]he form or structure of a question on a bond

referendum is not a standard, practice or procedure

affecting voting. The discretionary decision to submit

one or more questions to the electorate is one prop-

erly left to the political process.

698 F. Supp. 909, 912 (App. D at 48a), aff'd mem., 110

S. Ct. 858 (1990) (App. F at 46a). The Three-Judge

Court also ruled that the Board formulated the question

in a manner consistent with Georgia law as it existed

both before and after the benchmark date in Section 5.

Id. (App. D at 48a). As in White, this Court again sum-

marily affirmed the ruling of the Three-Judge Court.

110 S. Ct. 858 (1990) (App. F).

The Court of Appeals’ decision here is in direct con-

flict with White and the summary affirmance of the

Section 5 holding in this case, and should thus be over-

turned. See Mandel v. Bradley, 432 U.S. 173, 176 (1977)

(summary affirmances are binding on lower courts) ;

Hicks v. Miranda, 422 U.S. 332, 348-44 (1975) (same).

Since school boards need not obtain Section 5 clearance

from the Attorney General regarding the subject matter

of bond issue proposals before a referendum, it defies

reason to hold that voters still may challenge the validity

of such bond issues under Section 2, after the voters have

approved the bonds. To perform their public responsibili-

ties, local governmental authorities require some degree

of certainty that their decisions are enforceable. The

Court of Appeals’ decision undercuts the Board’s author-

ity to decide what bond issues to submit to the voters

and exposes the Board to the uncertainty and delay of

protracted litigation.

The cases cited above, taken together, teach that the

Voting Rights Act only regulates election and voting

procedures and does not reach substantive policy decisions

of validly elected representatives. The Board’s actions

here have in no way deprived respondents of an equal

opportunity to participate in the political process. In-

deed, each voter had an opportunity to weigh the per-

ceived benefits and detriments of the bond issue in its

entirety and to cast an effective vote for or against it.

If respondents disagreed with the comprehensive capital

improvement plan that the Board formulated and the

majority of the voters approved, they were entitled to

voice their disagreement by voting in the referendum

against the issuance of the bonds (and by voting in the

next election of the board members), but they have no

right to challenge the plan itself in a Voting Rights Act

lawsuit.

Not only is this conclusion required under the prece-

dents of this Court, but it is also fully consistent with

the views already twice expressed by the Attorney Gen-

eral of the United States, as amicus curiae, in this very

lawsuit. As this Court has stated, the views of the At-

torney General regarding the scope of the Voting Rights

Act are entitled to particular deference. United States

v. Board of Commissioners of Sheffield, 435 U.S. 110,

131 (1978). The Board respectfully suggests that this

Court again invite the Attorney General of the United

States to file an amicus curiae brief addressing the is-

sues raised by this petition for certiorari.

CONCLUSION

The Board respectfully requests that the Court grant

a writ of certiorari because the Court of Appeals’ deci-

sion improperly expands the reach of the Voting Rights

Act, invades the legislative discretion of validly elected

local governmental bodies and is contrary to controlling

precedents of this Court.

Respectfully submitted,

FRANK CATER JONES *

STEPHANIE E. PARKER

DAVID C. NUTTER

KING & SPALDING

2500 Trust Company Tower

Atlanta, Georgia 30303

(404) 572-4600

W. WARREN PLOWDEN, JR.

CRAIG N. COWART

JONES, CORK & MILLER

P.O. Box 6437

500 Trust Company Bank Bldg.

Macon, Georgia 31208-6437

(912) 745-2821

EDWARD S. SELL, JR.

SELL & MELTON

1414 Charter Medical Bldg.

P.O. Box 229

Macon, Georgia 31297-2899

(912) 746-8521

* Counsel of Record Counsel for Petitioners

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 89-8556

DAVID LUCAS, WILLIE DAVIS, JR., CONNIE CATER,

CoRLIS MCKENZIE and RONNIE T. MILEY,

Plaintiffs-Appellants,

JUDY TOWNSEND, in her official capacity as President of

the Board of Education, Bibb County Board of Educa-

tion, EMORY GREENE in his official capacity as Chair-

man of the Bibb County Board of Commissioners, Bibb

County Board of Commissioners, A.B. “TONY” CALD-

WELL in his official capacity as Chairman of the Macon-

Bibb County Board of Elections, Macon-Bibb County

Board of Elections, BERNARD FLETCHER, in his official

capacity as Supt., Macon-Bibb County Board of

Elections,

Defendants-A ppellees.

Appeal from the United States District Court

for the Middle District of Georgia

Aug. 9, 1990

ees 2a

Neil Bradley and Kathleen Wilde, American Civil

Liberties Union Foundation, Inc., Atlanta, Ga., for

plaintiffs-appellants.

W. Warren Plowden, Jr., Craig N. Cowart, and

Edward S. Sell, Jr., Jones, Cork & Miller, Macon, Ga.,

and Della Wager Wells, King & Spalding, Atlanta, Ga.,

for defendants-appellees.

Before HATCHETT, Circuit Judge, RONEY* and

FAIRCHILD**, Senior Circuit Judges.

HATCHETT, Circuit Judge:

In this voting rights case, we reverse the district court

and hold that the form in which a referendum question

is presented to voters may constitute a standard, prac-

tice, or procedure within the meaning of section 2 of the

Voting Rights Act.

FACTS

In 1987, the Board of Pub\c Education and Orphanage

for Bibb County (“the Board) began planning a refer-

endum requesting the voters of Bibb County to approve

the issuance of genera! obligation bonds. The bonds were

to provide funds to build a new high school and middle

school, and to complete the air conditioning in all of the

existing county schools. Initially, the Board planned to

include all the projects in a single referendum scheduled

for May, 1989. Subsequently, the Board voted to sepa-

rately offer the air conditioning project in a referendum

scheduled for March 8, 1988, the date of the presidential

preference primary, popularly known as “Super Tues-

day.”

*See Rule 34-2(b), Rules of the U.S. Court of Appeals for the

Eleventh Circuit.

** Honorable Thomas E. Fairchild, Senior U.S. Circuit Judge for

the Seventh Circuit, sitting by designation.

The Board reversed this decision, changing the date for

the referendum to May 31, 1988, and combining all the

projects in a single referendum. The Board explains this

change by pointing out that the Super Tuesday ballot

also contained a referendum to raise the sales tax .a

Bibb County. According to the Board, voters might ..ave

been reluctant to pass two bond referendums; thus, both

may have been defeated. Bibb County citizens, some of

whom are appellants in this case, charged that the Board

changed the date to avoid the heavy African-American

voter turnout expected because of Jesse Jackson’s name

on the ballot. These citizens also charged that the Board

combined the air conditioning project, initially scheduled

as a separate referendum question on Super Tuesday,

with the other projects to dilute the minority vote.

Allegedly, African-American voters favored the air con-

ditioning project, but did not favor new schools. These

citizens complained that voters supporting one project

were forced to vote in favor of other projects they did

not support. The Board, composed of six white and four

African-American members, split along racial lines in

voting whether to combine the projects in one referendum,

with the African-American members present voting

against combining the projects in a single referendum.

The School Board sought preclearance from the Attor-

ney General for the May 31st referendum pursuant to

section 5 of the Voting Rights Act of 1965 (“the Act’’).!

On May 25th, the Justice Department informed the Board

that it could not preclear the referendum without further

information.

1 Title 42 U.S.C. § 1973c requires preclearance by the Attorney

General of changes in voting practices in certain, covered juris-

dictions. In 1965, the Attorney General designated Georgia a cov-

ered jurisdiction under the Act. See City of Rome v. United States,

446 U.S. 156, 161, 100 S.Ct. 1548, 1553, 64 L.Ed.2d 119 (1980).

By regulation, the discretionary choice of a date for a special

election such as a referendum is subject to the preclearance require-

ment. 28 C.F.R. § 51.17(b) (1987).

PROCEDURAL HISTORY

On May 27, 1988, David Lueas, Willie Davis, Jr.,

Connie Cater, Corlis McKenzie, and Ronnie T. Miley

(“the appellants”) filed this lawsuit in the Middle Dis-

trict of Georgia seeking declaratory and injunctive relief.

The appellants sought to enforce the provisions of section

5 of the Act and to enjoin “deprivation under color of

state law, statute, ordinance, regulation, custom or usage

of the rights, privileges and immunities secured to plain-

tiffs by 42 U.S.C. $$ 1971, 1973, 1973e and 1983, and the

first, thirteenth, fourteenth and fifteenth amendments of

the Constitution of the United States... .”° The appel-

lants also filed a motion for a preliminary injunction.

A three-judge court denied preliminary injunctive relief,

holding that section 5 of the Act did not require pre-

clearance of the date selected for a special referendum.’

Lucas v. Townsend, 686 F.Supp. 902 (M.D.Ga.1988).

The Supreme Court granted an injunction pending appeal

on May 30, 1988. Because of state law notice require-

ments for holding a bond referendum, the postponement

resulting from the injunction rendered the appeal moot,

and it was dismissed.

On June 9, 1988, the Board approved a new bond

referendum for $29 million which combined the building

projects and the air conditioning project plus funding for

a magnet school program at Northeast High School.

Board members defeated an amendment to separate each

of the four projects into individual questions on the

ballot. The Board scheduled the referendum for Novem-

ber 8, 1988, the date of the general election, including the

presidential election. The Attorney General granted pre-

clearance for the new bond referendum under section 5.

-““Any action under this section shall be heard and determined

by a court of three judges in accordance with the provisions of

section 2284 of Title 28 and any appeal shall lie to the Supreme

Court.” 42 U.S.C.A. §1973c (West 1981).

In October, 1988, the appellants filed a second motion

in the district court for injunctive relief claiming that the

form of the referendum had not been precleared.’ In an

amicus brief, the Attorney General asserted that the deci-

sion to combine multiple projects in a single bond refer-

endum was not a voting qualification, or a prerequisite

to voting, or a standard, practice, or procedure with re-

spect to voting as controlled by section 5 of the Act. A

three-judge court denied the motion for a_ preliminary

injunction under section 5, substantially adopting the

Attorney General’s position. Lucas v. Townsend, 698

F.Supp. 909 (M.D.Ga.1988). The three-judge court’s

order was not appealed. On November 8, 1988, the voters

of Bibb County approved the bond issue by 590.8-percent

of the vote.

On March 7, 1989, the three-judge court entered judg-

ment for the School Board on the section 5 claims. Lucas

v. Townsend, 732 F.Supp. 1581 (M.D.Ga.1989). On June

7, 1989, a single-judge district court denied the appel-

lants’ claim based on section 2 of the Act. The district

court ruled that the Board’s exercise of discretion in

combining multiple projects in a single referendum rather

than submitting them as four separate questions did not

constitute a standard, practice, or procedure under sec-

tion 2. Lucas v. Townsend, 714 F.Supp. 525 (M.D.Ga.

1989).

On January 22, 1990 the Supreme Court summarily

affirmed the judgment of the three-judge court denying

relief for the section 5 claims. Lucas v. Townsend,

US. , 110 S.Ct. 858, 107 L.Ed.2d 943 (1990).

3“Any change affecting the ... methods for offering issues and

propositions for approval by referendum” is subject to preclear-

ance. 28 C.F.R. §51.13(j) (1987) (emphasis added).

CONTENTIONS OF THE PARTIES

The appellants contend that the Supreme Court’s sum-

mary affirmance of the three-judge court’s denial of re-

lief under section 5 does not constitute binding prece-

dent regarding the legal issues presented in this section

2 claim. According to the appellants, the form and tim-

ing of the referendum constitutes a standard, practice,

or procedure affecting voting within the meaning of sec-

tion 2 of the Voting Rights Act. They further contend

that the form of the referendum was intended to or had

the effect of diluting the minority vote in violation of

section 2 of the Act and in violation of the first, thir-

teenth, fourteenth, and fifteenth amendments.

The Board contends that the Supreme Court’s sum-

mary affirmance is binding precedent which controls the

outcome of this appeal. The Board also contends that

the form of the referendum question on the ballot is not

a voting qualification, prerequisite to voting, or standard,

practice, or procedure with respect to voting pursuant

to the Act. According tc che Board, even if section 2 is

applicable, the political pocesses leading to the formula-

tion of the referendum question were equally open to

African-Americans, and therefore, section 2 was not vio-

lated. All other constitutional claims were waived, the

Board argues, through the appellants’ failure to raise

these claims in the pretrial conference on March 2, 1989,

or in subsequent documents submitted to the district

court.

ISSUES

The issues are (1) whether the Supreme Court’s sum-

mary affirmance of the denial of relief under section 5

constitutes binding precedent in this section 2 appeal,

(2) whether the form of the referendum question is a

standard, practice, or procedure within the meaning of

section 2 of the Voting Rights Act, and (3) whether

section 2 of the Act was violated in this case.

DISCUSSION

I. Summary Affirmance

When the Supreme Court summarily affirms without

opinion, it affirms the judgment, but not necessarily the

court’s reasoning supporting the judgment. Mandel v.

Bradley, 482 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53

L.Ed.2d 199 (1977). Any question which it clearly de-

cides in affirming the judgment is binding on all other

courts faced with the same issue. Hicks v. Miranda, 422

U.S. 332, 344-45, 95 S.Ct. 2281, 2289-90, 45 L.Ed.2d 223

(1975). Thus, the threshold question is whether the Su-

preme Court necessarily decided that the form of a bond

referendum question is not “a standard, practice, or pro-

cedure affecting voting” pursuant to section 5.

The three-judge court denied relief on the merits of

the section 5 claims, citing the same reasons it gave ear-

lier in its opinion denying preliminary injunctive relief

under section 5.4 In that opinion, the court gave the fol-

lowing two reasons for its decision:

First, Georgia school boards before November 1,

1964, were authorized to and had exercised their

4 The parties having stated at a pretrial conference held on

March 2, 1989, before the originating judge that they do not

desire to present further evidence or briefs on the issues re-

quired to be heard by this 28 U.S.C. § 2284 court of three

judges, this court of three judges, for the reasons set forth

in its order of November 2, 1988, [Lucas v. Townsend, 698

F.Supp. 909 (M.D.Ga.1988)] does hereby declare and adjudge

that the decision of the defendant Bibb County Board of

Education to submit a single twenty-nine million dollar bond

issue by referendum to the voters of Bibb County, Georgial,]

rather than to submit four separate bond issues for the four

categories of school improvements to be paid for by said bond

issues, is not encompassed by Section Five of the Voting Rights

Act of 1965, and therefore, did not have to be submitted to the

Attorney General of the United States for Section Five pre-

clearance.

Lucas v. Townsend, 732 F.Supp. 1581, 1581 (M.D.Ga.1989).

discretion in formulating questions for bond refer-

endums. The exercise of discretion by the Bibb

County School Board was thus no change. Second,

the form or structure of a question on a bond ref-

erendum is not a standard, practice, or procedure

affecting voting. The discretionary decision to sub-

mit one or more questions to the electorate is one

properly left to the political process.

Lucas v. Townsend, 698 F.Supp. 909, 912 (M.D.Ga.

1988).

The School Board contends that the Supreme Court’s

summary affirmance of this ruling is binding precedent

on whether the form of a referendum is a standard, prac-

tice, or procedure pursuant to section 2.° The appellants

argue that the two alternative reasons for the Supreme

Court’s affirmance prevent it from controlling this sec-

tion 2 case. Under the first basis for its affirmance, the

Court may have simply agreed that the exercise of dis-

cretion in formulating questions for bond referendums

does not constitute a “change’’ under section 5. Section

5, requiring preclearance by the Attorney General, only

applies to proposed changes in voting procedures en-

acted after November 1, 1964. 42 U.S.C.A. $ 1973¢e

(West 1981); see Lucas v. Townsend, 698 F.Supp. at 911.

If the Supreme Court agreed with this rationale, it did

not have to reach the second basis for the opinion,

5 Section 5 of the Voting Rights Act of 1965, codified at 42

U.S.C. § 1973c, requires preclearance by the Attorney General for

changes of “any voting qualification or prerequisite to voting, or

standard, practice, or procedure with respect to voting. .. .” 42

U.S.C.A. § 1973¢ (West 1981) (emphasis added).

Section 2 of the Voting Rights Act of 1965, codified at 42 U S.C.

$1973(a), provides that “[n]o voting qualification er prerequisite

to voting or standard, practice, or procedure shall be imposed or

applied by any State or political subdivision in a manner which

results in a denial or abridgvement of the right of any citizen of the

United States to vote on account of race... .”’ 42 U.S.C.A. § 1973 (a)

(West Supp. 1990) (emphasis added).

whether the form of a bond referendum question is a

standard, practice, or procedure affecting voting.

We agree with the appellants that because two rea-

sons exist for the Supreme Court’s affirmance, it did not

necessarily decide the issue of whether the form of a

bond referendum question is a standard, practice, or

procedure affecting voting. The Supreme Court may have

agreed with the three-judge court that the decision to

combine multiple projects in a bond referendum did not

constitute a change under section 5. Georgia law allows

school boards to combine more than one project in a

referendum. See Miles v. State, 96 Ga.App. 610, 614,

101 S.E.2d 173, 176 (1957) (bond referendum combin-

ing several school funding projects held to constitute

“one proposition” as required by state statute); see also

Ga.Code Ann. § 36-82-1 (Michie Supp.1989). Therefore,

we hold that the Supreme Court’s summary affirmance

does not constitute binding precedent on the issue of

whether the form of a referendum is a standard, prac-

tice, or procedure within the meaning of section 2."

II. “Standard, Practice, or Procedure’ Under Section 2

Section 2 of the Voting Rights Act of 1965 provides

that

[n]o voting qualification or prerequisite to voting or

standard, practice, or procedure shall be imposed or

applied by any state or political subdivision in a

manner which results in a denial or abridgement of

the right of any citizen of the United States to vote

on account of race or color, or in contravention of

the guarantee set forth in section 1973b(f1(2) of

this title, as provided in subsection (b) of this section.

* Because we decide that the Supreme Court did not necessarily

reach this issue, we need not decide whether the phrase “standard,

practice, or procedure” has the same meaning in section 2 and

section 5.

10a

42 U.S.C.A. $ 1973(a) (West Supp.1990). “The essence

of a $2 claim is that a certain electoral law, practice,

or structure interacts with social and historical condi-

tions to cause an inequality in the opportunities enjoyed

by black and white voters to elect their preferred rep-

resentatives.” Thornburg v. Gingles, 478 U.S. 30, 47,

106 S.Ct. 2752, 2764, 92 L.Ed.2d 25 (1986). All citizens

enjoy the right to a properly weighted and counted vote

encompassing both “votes cast with respect to candidates

for public or party office and propositions for which votes

are received in an election.” 42 U.S.C.A. $ 19731 (¢) (1)

(West 1981). Thus, bond referendums. which are a form

of proposition, fall within the express language of the

Act. The question remaining, as a matter of first im-

pression, is whether combining multiple bond projects in

a single referendum constitutes a standard, practice, or

procedure which has the potential of resulting in the

denial or abridgement of the right to vote on account of

race.

The phrase “standard, practice, or procedure” appears

in section 2 and section 5 of the Act. In the following

discussion, we examine the Supreme Court’s interpreta-

tion of this phrase in both sections to determine its scope.

In Allen v. State Board of Elections, 393 U.S. 544, 567,

89 S.Ct. 817, 832, 22 L.Ed.2d 1 (1969), the Court held

that the phrase must be given the “broadest possible

scope.” Based on the legislative history of Congress’ in-

tent, the Court concluded that “the Act gives a broad

interpretation to the right to vote, recognizing that vot-

ing includes ‘all action necessary to make a vote effec-

tive.” Allen, 393 U.S. 544, 565-66, 89 S.Ct. 817, 832

(citations omitted). In Allen, the Court held that a

change from district to at-large voting for county super-

visors constituted a “voting qualification or prerequisite

to voting, or standard, practice, or procedure with re-

spect to voting’ within the meaning of section 5. The

Court alse held that the decision to make certain offices

lla

appointive instead of elective fell within the meaning of

section 5.

In Dougherty County, Georgia, Board of Education »,

White, 439 U.S. 32, 99 S.Ct. 368, 58 L.Fd.2d 269 (1978),

the Court held that a local school board’s rule regard-

ing leave without pay for employees while they sought

elected office and while they served in that capacity was

“a standard, practice, or procedure” affecting voting

within the meaning of section 5. The Court reasoned

that the rule was not a neutral personnel practice govern-

ing all forms of absenteeism, but rather a type of filing

fee. “By imposing substantial economic disincentives on

employees who wished to seek elective office, the rule bur-

dens entry into elective campaigns and, concomitantly

limits the choices available to Dougherty County voters.”

439 U.S. at 40, 99 S.Ct. at 373. é

In response to the Court’s ruling. the loeal school board

eliminated the policy requiring leave without pay for

emplovees seeking political office, instituting instead a

neutral employee policy limiting leave without pay to

case-by-case consideration. The Court subsequently af-

firmed the three-judge court’s holding that individual per-

sonnel! decisions regarding an employee's request for leave

without pay to serve in an elected capacity was not “a

standard, practice, or procedure with respect to voting.”

White v. Dougherty County Board of Education, 579 F.

Supp. 1480 (M.D.Ga.1984), aff'd, 470 U.S. 1067, 105

S.Ct. 1824, 85 L.Ed.2d 125 (1985). Cf. NAACP v. Hamp-

ton County Election Commission, 470 U.S. 166, 178, 105

S.Ct. 1128, 1135, 84 L.Ed.2d 124 (1985) (change need

not be likely to be repeated; “Voting Rights Act reaches

changes that affect even a single election.’’).

While section 5 requires preclearance for changes in

voting practices in covered jurisdictions, section 2 forbids

practices which abridge the right to vote on account of

race in any jurisdiction. The right to vote may be

12a

abridged through the dilution of voting strength. Reyn-

olds v. Sims, 377 U.S. 538, 555, 84 S.Ct. 1362, 13878, 12

L.Ed.2d 506 (1964). Challenges to at-large voting

schemes consistently have been held to fall within the

meaning of section 2 because of their potential for dilut-

ing the effectiveness of the minority vote. See, e.9.,

Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92

L.Ed.2d 25 (1986); Solomon v. Liberty County, Florida,

899 F.2d 1012 (11th Cir.1990) ; Unitea States v. Dallas

County Commission, 850 F.2d 1433 (11th Cir.1988).

The courts have also held that a “standard, practice, or

procedure” within the meaning of section 2 can include

the appointment of poll officials and the selection of poll-

ing places. See United States v. Marengo County Com-

mission, 731 F.2d 1546, 1552-53 (11th Cir.1984) (ap-

pointment of poll officials); Perkins v. Matthews, 400

U.S. 379, 387, 91 S.Ct. 431, 436, 27 L.Ed.2d 476 (1971)

(location of polling place). In Perkins, the Court held

that locating polling places distant from African-Ameri-

can communities or at places calculated to intimidate

them from entering was a practice or procedure which

violated the Act. “The abstract right to vote means

little unless the right becomes a reality at the polling

place on election day.” Perkins v. Matthews, 400 U.S.

at 387, 91 S.Ct. at 436.

We begin our analysis by noting that the views of the

Attorney General regarding the scope of section 5 of the

Act are entitled to deference. Dougherty County, Geor-

giz, Board of Education v. White, 439 U.S. at 39, 99

S.Ct. at 372. We do not afford the Attorney General’s

interpretation of section 5 the same deference in resolv-

ing clams under section 2, however, because that section

does not involve the Attorney General. In the amicus

brief submitted, on behalf of the United States to the

three-judge court, the Attorney General stated that “i]t

is unquestioned that the ‘method of offering issues and

propositions for approval by referendum’ is . . . a stand-

ard, practice, or procedure that, if changed, is subject

13a

to section 5 review.” (Citing 28 C.F.R. § 51.13(j).) The

Attorney General, nevertheless, stated the following rea-

sons for not requiring preclearance for the Board’s choice

of how to frame the referendum:

Here, the facts of the record would tend to suggest

that the defendants’ discretionary decision to pre-

sent the voters with a single vote on the entire bond

project is not the kind of change subject to preclear-

ance. Selecting a number of projects to be financed

under one bonding authority would seem to be a

normal legislative decision unrelated to the process

of holding elections. It is essentially the same kind

of determination as the amount of bonded indebted-

ness required for a project, the interest rate the

Board is willing to pay, or the term of the bonds.

We cannot agree that the decision to group multiple

projects into one referendum is analogous to the decision

of how much money to spend on a project, or what in-

terest rate should be paid on the bonds. How the Board

presents projects to the voters, whether as single-issue

or multiple-issue referendums, becomes a political deci-

sion with the potential for diluting or submerging the

minority vote as prohibited by section 2. As the Attor-

ney General acknowledges, the Voting Rights Act is de-

signed to assure equal opportunity for the minority to

express its political will whether in the election of the

candidate of their choice or in voting for the proposition

of their choice. By combining projects in one referendum,

the Board forced minority voters supporting one project

to either vote in favor of other projects they might not

support, to abstain from voting, or to vote against the

project they supported. Their political will to defeat cer-

tain propositions is effectively diluted or submerged by

the combination of multiple projects in a single refer-

endum. See Rea v. City of Lafayette, 130 Ga. 771, 61

S.E. 707, 708 (1908) (“[tlo present [two] propositions

in a single submission, thus rendering the success of one

14a

dependent upon the success of the other, or the defeat of

one on the defeat of the other, is clearly unfair to the

voters. ...”).

The district court concluded that the Board’s decision

to group all four bond projects into a single referendum

was not “a standard, practice, or procedure” pursuant to

section 2. The district court reasoned that the Board’s

discretionary, deliberative process did not address the

right to vote as protected by the Act.

[T]his court determines that the exercise of discre-

tion by validly elected local board officials in deter-

mining the number of questions to be submitted to

the electorate for its approval or disapproval at the

ballot box is not a standard, practice, or procedure.

Alternatively, the court finds that even if such exer-

cise of discretion was a standard, practice, or pro-

cedure, such practice does not affect voting. The

manner in which the proposal was structured had

and has absolutely no bearing upon the qualification

of any individual to vote, the ability of any individ-

ual to register to vote, the opportunity of any in-

dividual to cast his or her vote, or the manner in

which any individual’s vote was tabulated.

Lucas v. Townsend, 714 F.Supp. 525, 534 (M.D.Ga.1989)

(emphasis added).

Although this practice may not be the kind of change

subject to preclearance under section 5, we hold that it

is “a standard, practice, or procedure” that has the po-

tential for abridgement of the right to vote on account of

race. Minority communities have the right to vote for

or against the propositions of their choice just as they

have the right to a fully effective vote to elect candidates

of their choice. The practice of combining separable ref-

erendum issues into a single question may work to abridge

minority voting rights as certainly as the policy concern-

ing leaves of absence for employees running for public

15a

office, the appointment of polling officials, and the loca-

tion of the polls. In the proper case, this practice could

dilute a minority vote as effectively as anti-single shot

voting procedures and straight ticket voting require-

ments. See City of Rome v. United States, 466 U.S. 156,

184-85 n. 19, 21, 100 S.Ct. 1548, 1565 n. 19, 21, 64 L.Ed.

2d 119 (1980) (anti-single shot voting practices de-

scribed) ; Dunston v. Scott, 336 F.Supp. 206, 211 (E.D.

N.C.1972) (anti-single shot law requires voter to vote

for all available seats even though voter would prefer to

vote for fewer seats); Hendon v. North Carolina State

Board of Elections, 710 F.2d 177, 180 (4th Cir.1983)

(straight ticket vote counting that did not count split

ticket votes unconstitutional).

Our holdings do not have any far reaching impact on

the manner in which public bodies in Georgia may offer

propositions to the voters. Section 5 is not affected by

our holding. Since Georgia law presently allows multiple

propositions to be presented in a single referendum, con-

tinuing this practice will not constitute a change; thus,

the Attorney General will not be required to preclear the

proposition. See Lucas v. Townsend, 732 F.Supp. 1581

(M.D.Ga.1989), aff'd, U.S. ——, 110 S.Ct. 858,

107 L.Ed.2d 943 (1990). As to the effect of our hold-

ing on section 2, multiple propositions presented in a

single referendum will be subject to litigation; but, so

are all referendum propositions that allegedly discrimi-

nate against minorities.

III. The Violation of Section 2

We do not reach the merits of the appellants’ section

2 claim because the district court did not rule on the

“results” aspect of this case. Therefore, we remand this

case to the district court for the determination of whether

section 2 has been violated.’

70On remand, the district court should determine whether the

appellants’ failure to present the constitutional issues in the March

l6a

CONCLUSION

We hold that the Supreme Court’s summary affirmance

on the appellants’ section 5 claim does not constitute bind-

ing precedent as to the issue in this case. We further

hold that the form or structure of a referendum question

is “a standard, practice, or procedure” within the mean-

ing of section 2 of the Voting Rights Act of 1965. We

remand to the district court for further proceedings con-

sistent with this opinion.

REVERSED and REMANDED.

RONEY, Senior Circuit Judge, dissenting:

I respectfully dissent for the reasons stated in the opin-

ion of the district court, which I would affirm. Lucas v.

Townsend, 714 F.Supp. 525 (M.D.Ga.1989).

2, 1989 pre-trial conference resulted in a waiver of those issues.

We note that the appellants’ proposed Pre-trial Order filed February

28, 1989, listed claims based on the first, thirteenth, fourteenth,

and fifteenth amendments.

tae

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APPENDIX B

UNITED STATES DISTRICT COURT

M.D. GEORGIA

MACON DIVISION

Civ. A. No. 88-166-1-MAC (WDO)

DAVID LUCAS, et al.,

Plaintiffs,

Vv.

JUDY TOWNSEND, et al.,

Defendants.

June 7, 1989

Neil Bradley, Atlanta, Ga., for plaintiffs.

W. Warren Plowden, Ed. S. Sell, Jr., Macon, Ga., and

Della Wager Wells, Atlanta, Ga., for defendants.

ORDER

OWENS, Chief Judge.

As a part of the general presidential election conducted

on November 8, 1988, the voters of Bibb County, Georgia

approved a twenty-nine million dollar ($29,000,000.00)

bond issue destined to pay for the following improve-

ments in the Bibb County school system:

(1) air conditioning existing schools;

(2) constructing a new north-west Bibb County

high school with a proposed approximate ratio of

50% white students and 50% black students; and

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(3) renovating Northeast High School for its use

as a magnet high school.

Both preceding and after the November 8th general elec-

tion, plaintiffs failed to convince a three-judge district

court, convened in accordance with 28 U.S.C. § 2284(b),

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

§$ 1973e, requires approval by the Attorney General of

the United States of the county commission’s and county

school board’s decision to submit the twenty-nine million

dollar bond issue to the electorate as a single question

rather than to submit to the voters cach of the three

component parts of the proposal for their separate ap-

proval or disapproval. See Lucas v. Townsend, 698

F.Supp. 909 (M.D.Ga.1988)'; Lucas v. Townsend, Slip.

Op. No. 89-166-1-MAC (WDO) (May 16, 1989).

Having failed to prevail on their Section 5 claim, plain-

tiffs now seek to persuade this court of one judge that,

pursuant to Section 2 of the Voting Rights Act, the same

conduct found not to be a standard, practice, or procedure

affecting voting by a three-judge court has suddenly been

transformed by Section 2 into such a standard, practice,

or procedure. Arguing that Section 2 coverage is broader

than coverage under Section 5, plaintiffs contend that the

conduct of defendants in this case, that is, the board’s

exercise of its discretion in combining the school improve-

ment proposals into one question rather than into several

questions, is a standard, practice, or procedure which has

1Section 5 of the Voting Rights Act requires that certain

“changes affecting voting” be pre-cleared by the Attorney General

of the United States prior to their implementation. The three-

judge panel held that the Bibb County school board’s exercise

of its discretion in formulating questions for bond referendums

was not a change affecting voting. Further, the court held that

“the form or structure of a question on a bond referendum is not

a standard, practice or procedure affecting voting. The discre-

tionary decision to submit one or more questions to the electorate

is one properly left to the political process.” Lucas, 698 F.Supp. at

912.

19a

prevented individuals in ihe black community from cast-

ing an effective vote.’

Discussion

Background

0.C.G.A. § 20-2-430 enables county school boards to

seek the issuance of bonds upon their determining that

2Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, reads

as follows:

(a) No voting qualification or prerequisite to voting or stand-

ard, practice, or procedure shall be imposed or applied by any

State or political subdivision in a manner which results in a

denial or abridgement of the right of any citizen of the United

States to vote on account of race or color, or in contravention

of the guarantees set forth in section 1973b(f) (2) of this title,

as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is estab-

lished if, based on the totality of circumstances, it is shown

that the political processes leading to nomination or election in

the State or political subdivision are not equally open to par-

ticipation by members of a class of citizens protected by sub-

section (a) of this section in that its members have less

opportunity than other members of the electorate to participate

in the political process and to elect representatives of their

choice. The extent to which members of a protected class

have been elected to office in the State or political subdivision

is one circumstance which may be considered: Provided, That

nothing in this section establishes a right to have members of

a protected class elected in numbers equal to their proportion

in the population.

42 U.S.C. § 19731(c) (1) defines “vote” or “voting” for purposes of

sections 2 and 5. It reads as follows:

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 prerequisite to voting, casting a ballot, and having such

ballot counted properly and included in the appropriate totals

of votes cast with respect to candidates for public or party

office and propositions for which votes are received in an

election.