# Petition for Writ of Certiorari — Board of Public Education v. Lucas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1009%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 973 ## Text at i’ P D \) | Le | 4 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) ii 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 iv 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 v 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. 2 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 4 (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 = 5 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: 6 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 7 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). 8 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). 9 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. 10 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 11 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. 12 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 13 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- 14 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. 15 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 la 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, Ve 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. 3a 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). 4a 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). 5a 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). 6a 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. Ta 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). 8a 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). 9a 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 17a 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 ($29,000,000.00) bond issue destined to pay for the following improve- ments in the Bibb County school system: (1) air conditioning existing schools; (2) constructing a new north-west Bibb County high school with a proposed approximate ratio of 50% white students and 50% black students; and 18a (3) renovating Northeast High School for its use as a magnet high school. Both preceding and after the November 8th general elec- tion, plaintiffs failed to convince a three-judge district court, convened in accordance with 28 U.S.C. § 2284(b), that Section 5 of the Voting Rights Act of 1965, 42 U.S.C. §$ 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: (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 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. See also 28 C.F.R. § 51.2. 20a the incurrence of such debt is in the best interests of education in the county. That statue provides that the election shall be called and held in the manner prescribed by O0.C.G.A. § 36-82-1, a section which describes in detail the notice and other requirements applicable to such is- sues. In ruling upon challenges to elections held pursuant to the forerunners to these and other statutes, Georgia courts have established the following principle: If it can be said that the proposed improvements are not naturally related or connected, then it is clear that separate submissions are required; if, on the other hand, the several parts of the project are plainly so related that, united, they form in fact but one rounded whole, it is equally clear that they may be grouped together and submitted as one proposi- tion. Miles v. State of Georgia, 96 Ga.App. 610, 614, 101 S.E.2d 173, 176 (1957) (citations omitted); see Berrie v. State, 119 Ga.App. 148, 166 S.E.2d 631 (1969); compare Rea v. City of LaFayette, 130 Ga. 771, 772, 61 S.E. 707, 708, (1908) (“two or more separate and distinct propositions cannot be combined into one and submitted to the voters of a county or a municipality as a single question, so as to have one expression of the voter answer all of them.’’) (emphasis added). The bond issues submitted to the electorate in both Miles and Berrie each involved numerous projects for im- proving the respective county school systems as a whole.’ 3 For example, the bond issue in dispute in Miles involved a pro- posal to finance improvements in the Bacon County, Georgia school system, and the use of the funds derived from the sale of the bonds was explained as follows: [The funds derived from the sale of the bonds would be] for the purpose of providing funds to build, construct and equip new educational facilities such as school buildings, libraries, auditoriums, cafeterias, gymnasiums, athletic fields and build- ings, and structures useful in connection therewith, adding to, 2la Clearly, the bond issue submitted to the voters of Bibb County on November 8th involved various proposals for the improvement of the Bibb County school system plainly so related that, united, they form in fact but one related whole. Thus, pursuant to Georgia law, those proposals may be grouped together and submitted as one proposi- tion. See Miles, supra. Applicable Law With the above discussion as background, the court now considers plaintiffs’ Section 2 allegations. ‘The es- sence of a § 2 claim is that a certain electoral law, prac- tice or structure interacts with social] and historical con- ditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred repre- sentatives.” Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 2764-65, 92 L.Ed.2d 25, 44 (1986). In evalu- ating a plaintiff’s Section 2 claim, a court must first determine whether the challenged conduct or activity is of a type encompassed by the Voting Rights Act, that is, whether the challenged conduct constitutes a standard, practice, or procedure which affects voting.* See gen- improving and equipping existing properties and facilities of the Bacon County School System and acquirirz the necessary property therefor and paying expenses incident thereto. Miles, 96 Ga.App. at 613, 101 S.E.2d at 176. 4 Neither the statutes (sections 1973 and 1973c) nor the regula- tions promulgated pursuant to section 1973c, see 28 C.F.R. §§ 51.1, et seq., defines a standard, practice, or procedure as those terms are employed in section 1973. See Dougherty County No. 1, 439 U.S. at 37, 99 S.Ct. at 371-72, 58 L.E.2d at 277. 28 C.F.R. § 51.13 enumerates examples of “changes affecting voting,” most of which relate to practices or procedures pertaining to (1) qualifications, eligibility, or registration for either voting or running for office, (2) boundaries for representative districts, voting precincts or voting units, (3) locations of polling places, and (4) methods of determining the outcome of elections. Only section 51.13(j), which concerns changes “affecting the necessity of or methods for offering issues and propositions for approval by referendum,” appears at all relevant to the matter before this court. This court has been unable 22a erally, Dougherty County, Georgia, Bd. of Education v. White (“Dougherty County No. 1”), 439 U.S. 32, 99 to discover, and the parties in their pleadings have failed to in- clude, cases interpreting this section. However, as illustrative of the types of conduct or activities which courts have found to constitute standards, practices, or pro- cedures with respect to voting, the court includes the following summary of “changes” which the Supreme Court has found to be covered under Section 5 of the Voting Rights Act. This summary is contained in NAACP, Dekalb County Chapter v. State of Georgia, 494 F.Supp. 668, 678 (N.D.Ga. 1980). —a change from district to at-large voting for county super- visors, Allen v. State Board of Elections, supra, 393 U.S. at 569, 89 S.Ct. at 833-34; —a change from electing to appointing an important county officer in certain counties, Allen v. State Board of Elections, supra, 393 U.S. at 569-70, 89 S.Ct. at 834; —an amendment to balloting procedure which provides that “no person who has voted in a primary election may thereafter be placed on the ballot as an independent condidate in the gen- eral election,” Allen v. State Board of Elections, supra, 393 U.S. at 570, 89 S.Ct. at 834; —a new procedure for casting write-in votes, Allen v. State Board of Elections, supra, 393 U.S. at 570, 89 S.Ct. at 834; —a change in the location of polling places, Perkins v. Mat- thews, supra, 400 U.S. at 387, 91 S.Ct. at 436; —municipal annexations, Perkins v. Matthews, supra,.400 U.S. at 388, 91 S.Ct. at 437; —the change from ward to at-large elections of city aldermen, Perkins v. Matthews, supra, 400 U.S. at 394, 91 S.Ct. at 439-40; —a state statute which staggered the terms of the three members of a county Board of Commissioners of Roads and Revenues, Berry v. Doles, 438 U.S. 190, 191, 98 S.Ct. 2692, 2694, 57 L.Ed.2d 693 (1978); —a city’s decision to change from an aldermanic system of government to a system in which councilmen are elected at large, United States v. Board of Commissioners of Sheffield, Alabama, supra, 435 U.S. at 137-38, 98 S.Ct. at 982-83; and —a rule by a county board of education requiring employees to take unpaid leaves of absence while campaigning for public office, Dougherty County, Georgia Board of Education v. White, supra, 439 U.S. at 47, 99 S.Ct. at 377. 23a S.Ct. 368, 58 L.Ed.2d 269 (1978) (holding that a local school board’s rule regarding leave without pay for em- ployees desiring to seek elected office and to serve in that capacity was a standard, practice, or procedure affecting voting); Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1989) (holding that the Voting Rights Act does not reach the activities of private citizens in their petition efforts to place a referendum on the ballot); see also White v. Dougherty County Bd. of Education (“Dougherty County No. 2’), 579 F.Supp. 1480 (M.D.Ga.1984), aff’d, 470 U.S. 1067, 105 S.Ct. 1824, 85 L.Ed.2d 125 (1985) (hold- ing that individual personnel decisions regarding employ- ee’s request for leave without pay to serve in elected capacity was not a standard, practice, or procedure with respect to voting). In considering whether the conduct alleged in this case is a standard, practice, or procedure with respect to voting, the court is cognizant both that the phrase “standard, practice, or procedure” must be given the broadest scope possible, Allen v. Board of Elec- tions, 393 U.S. 544, 566-67, 89 S.Ct. 817, 832-33, 22 L.Ed.2d 1, 17-18 (1969), and that “ ‘voting’ includes ‘all action necessary to make a vote effective.’”’ Jd. at 565- 66, 89 S.Ct. at 832, 22 L.Ed.2d at 17, citing 79 Stat. 445, 42 U.S.C. § 19731 (c) (1). Because of an absence of authority on the subject, see supra note 4, and because the views of the Attorney General regarding the scope of the Voting Rights Act are entitled to particular deference, see Dougherty County No. 1, 439 U.S. at 39, 99 S.Ct. at 372-73, 58 L.Ed.2d at 278, the three-judge panel, during the prior Section 5 litigation, invited the United States to submit a brief as amicus curiae. Therein, commenting upon 28 C.F.R. § 51.13(j), the United States stated that “[i]t is unques- tioned that the ‘method of offering issues and propositions for approval by referendum’ is such a standard, practice or procedure that, if changed, is subject to Section 5 re- view.” Brief for the United States as Amicus Curiae 24a (“Amicus” Brief), pp. 13-14, citing 28 C.F.R. § 51.13(j). However, the United States continued as follows: Here, the facts of record would tend to suggest that the defendants’ discretionary decision to present the voters with a single vote on the entire bond proj- ect is not the kind of change subject to preclearance. 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 hold- ing elections. It is essentially the same kind of de- termination as the amount of bonded indebtedness required for a project, the interest rate the board is willing to pay or the term of the bonds. Amicus Brief, pp. 16-17 (emphasis added). The somewhat inconsistent statements made by the Attorney General evidence both the novelty of plaintiffs’ argument and the difficulty of the question presented. However, upon consideration, this court finds implicit in the Attorney General’s comments the idea that the “meth- ods” brought within the meaning of 28 C.F.R. § 51.13(j) are not those discretionary decisions made by properly elected legislative officials “‘in the best interests of educa- tion’; instead, the regulation refers to those barriers, be they subtle or obvious, which obstruct the paths leading to the registration of voters, the casting of votes, the tabulation of votes and the requirements for election or passage, t.e., approval by majority vote, or by plurality vote, or by a two-thirds margin. The general idea stated just above finds support ‘in the legislative history developed in regard to the 1982 amendments to the Voting Rights Act. See generally, Senate Rep. No. 97-417, 97th Congress, 2nd Session, pp. 1-43, reprinted in 1982 U.S.Code Cong. & Ad.News, pp. 177-221 ‘citations hereafter will be to pages in 1982 U.S. Code Cong. & Ad.News). The original intent of Section 2 of the Voting Rights Act of 1965 was to ban “ ‘any a4 25a kind of practice . . . if its purpose or effect was to deny or abridge the right to vote on account of race or color.’”’ 1982 U.S.Code Cong. & Ad.News, p. 194 (foot- note omitted), quoting Attorney General Katzenbach. “!Sjection 2 protects 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.” Jd. at 206. Congress noted that the vast majority of Section 2 cases have “dealt with electoral system features such as at- large elections, majority vote requirements and district- ing plans.” Jd. at 207; see e.g. Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) ; Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd on other grounds sub nom East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1088, 47 L.Ed.2d 296 (1976).5 5 Congress emphasized, however, that “section 2 remains the major statutory prohibition of all voting rights discrimination. It also prohibits practices which, while episodic and not involving permanent structural barriers, results in the denial of equal access to any phase of the electoral process for minority group members.” 1982 U.S.Code Cong. & Ad.News, p. 207. Footnote 119 of the Senate Report, in illustration of the scope of Section 2, states as follows: This aspect of the statute’s scope is illustrated by a variety of Section 2 cases involving such episodic discrimination. For example, a violation could be proven by showing that the elec- tion officials made absentee ballots available to white citizens without a corresponding opportunity being given to minority citizens. See Brown v. Post, 279 F.Supp. 60, 63-64 (W.D.La. 1968). Likewise, purging of voters could produce a discrim- inatory result if fair procedures were not followed, Toney v. White, 488 F.2d 310 (5th Cir. 1973), or if the need for a purge were not shown or if opportunities for re-registration were unduly limited. Administration of an election could like- wise have a discriminatory result if, for example, the informa. tion provided to voters substantially misled them in a discrim- 26a Each of the cases mentioned, discussed, or noted above addresses a standard, practice, or procedure which clearly impacts a minority individual’s access to and participa- tion in the electoral process. Those cases must be con- trasted with the alleged standards, practices, or proce- dures in Dougherty County No. 2, supra; Delgado v. Smith, supra; Burger v. Judge, 364 F.Supp. 504 (D. Mont.1973), aff'd, 414 U.S. 1058, 94 S.Ct. 563, 38 L.Ed.2d 465 (1973); and Kohler v. Tugwell, 292 F.Supp. 978 (E.D.La.1968), aff'd 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755 (1969). In Dougherty County No. 2, though plaintiff John White’s claim was based upon Section 5, the three-judge panel’s decision hinged upon whether certain actions taken by the school board constituted a standard, practice, or procedure.* The actions referred to involved various decisions made by the Dougherty County inatory way. United States v. Post, 297 F.Supp. 46, 50-51 (W.D.La.1969). 1982 U.S.Code Cong. & Ad.News, p. 208. Two additional cases further illuminate the scope of Section 2. In Brown v. Dean, 555 F.Supp. 502 (D.R.1.1982), the court held that “the location and accessibility of a polling place have a direct effect on a person’s ability to exercise his franchise.” Jd. at 505, citing Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). The court found a violation of Section 2 and ordered the polling place relocated. In Miss. State Chapter Operation PUSH v. Allain, 674 F.Supp. 1245 (N.D.Miss.1987), the court identified the following voter registration laws as practices in violation of Section 2: (1) the state’s failure to make certain amendments to Mississippi’s election laws retroactive to that category of voters who had registered with a county registrar prior to August 3, 1984; (2) the state’s failure to mandate deputization of all municipal clerks as deputy county registrars; and (3) the state’s failure to require satellite registration on a uniform statewide basis, thus hindering the ability of minority members to participate in the political process. Jd. at 1268. 6 The court noted as follows: “Assuming that this court finds that any such standard, practice or procedure was adopted, the second question to be answered is whether or not it is ‘with respect to voting... .’” Dougherty County No. 2, 579 F.Supp. at 1490. 27a school board either authorizing or refusing to authorize leave without pay for school employees who wished to campaign for and serve in certain elected positions. In one instance, the panel determined that the school board’s decision “did not constitute a ‘standard, practice or pro- cedure’ pertaining to employee absence. It was nothing more than an individual personnel decision.” Jd. at 1491- 92 (footnotes omitted). A second decision by the school board was found not to be a standard, practice, or pro- cedure because in light of its conditional nature it failed to establish “fa precedent on which the affected employees and others may rely....” Jd. at 1492. Finally, the three- judge court found that, despite the defendant school board’s own characterization of its decision as a policy on political leave, “the board in reality decided not to allow its employees who are elected to public office greater time away from the job than they and all other employees are otherwise allowed.” Jd.? In Delgado v. Smith, supra, the Eleventh Circuit considered whether citizen initiative petitions come within the Voting Rights Act. The court stated that “[t]here is no question that the sole purpose of [the Voting Rights Act] was to ensure the integrity of the registration and voting process by eradicating barriers which had pre- viously prevented blacks from voting.” Delgado, 861 F.2d 7 The court summarized as follows: Viewed from every angle and in the brightest light of the Supreme Court’s broad interpretations of the words “standard, practice, and procedure,” this board’s refusal to alter its neutral personnel policies to accommodate this employee elected office holder does not possibly constitute a Section 5 “standard, prac- tice, or procedure.” * * * * There having been no “standard, practice, or procedure” enacted or sought to be administered, it is unnecessary to con- sider whether or not the conduct of the defendant board was “with respect to voting.” Id. at 1493 (footnote omitted). 28a at 1492. The court cited with approval a decision which found the petition process too far removed from the voting booth to fall under the Act. Jd. at 1493, citing Zaldivar v. City of Los Angeles, 590 F.Supp. 852 (C.D. Cal.1984), rev’d on other grounds, 780 F.2d 823 (9th Cir. 1986). The Eleventh Circuit panel concluded that “the history of the Act, the stated intention of Congress, and the relevant case law persuade us that the Voting Rights Act could not properly be applied to the case before us.” Id. at 1493. In Burger v. Judge, supra, a three-judge panel con- sidered the merits of plaintiffs’ contentions that the citi- zens of Montana, in voting on four propositions submitted to the electorate by a Constitutional Convention, had been misled as to the effects of their votes by (1) the official ballot, (2) an official publication mailed to all voters, (3) a newspaper supplement, (4) an analysis prepared by the Constitutional Convention Commission, (5) the debate during the Constitutional Convention, and (6) a particu- lar state statute. Burger, 364 F.Supp. at 508-09. The court, after a discussion of plaintiffs’ arguments, stated that “[iJn any event, it is clear that all electors who were in fact opposed to the proposed constitution could have expressed their disapproval by voting against it.” Continuing, the court stated as follows: This is not a case where any electors were de- prived of a right to vote or where there was any debasement or dilution in their votes. Nor is it a case where the voters were misled with respect to the content or meaning of any of the issues submitted to them. The 7,302 electors clearly had a right and opportunity to vote on the proposed constitution and in fact were urged to do so. If, under these circumstances, any electors were in fact misled, they were simply mistaken as to the effect of their absention from voting and not de- prived of any right or opportunity to vote in viola- Cs ammameamaaaaaaaaaeasaaeaasaaaaaaainiaataaiai iia 29a tion of Article IV, Section 4 of the Constitution of the United States, the Fourteenth Amendment to the Constitution, or the Voting Rights Act of 1965 (42 U.S.C. § 1973). Id. at 511-12 (footnotes omitted). Finally, in Kohler v. Tugwell, supra,’ a three-judge panel heard plaintiffs’ claim that “the designation of the amendment as it appeared on the state ballot misled vot- ers. Hence, they contend that those who voted in favor of the enactment were deprived of their right to vote. ..’ Kohler, 292 F.Supp. at 979. The panel agreed with plaintiffs that the amendment was phrased in a manner “so turgid that it would be difficult to say that any ballot designation could describe it accurately.” Jd. at 980. Quoting Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377, 12 L.Ed.2d 506, 523 (1964), the court noted that “the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.” Kohler, 292 F.Supp. at 981. The Kohler panel went on to state as follows: ———————— However, a federal court must not interfere with the internal affairs of a State unless it is necessary to do so to protect those rights guaranteed every citi- zen by the Federal Constitution. The procedure fol- lowed by Louisiana does not deprive the plaintiffs of Due Process for it is sufficient that Louisiana’s vot- ers were informed by the ballot of the subject of the amendment, were given a fair opportunity by 8 The plaintiffs in Kohler were proceeding under the United States Constitution, Article 4 §4 and Amendment 14. The Voting Rights Act was not at issue in the case. However, the discussion in Kohler sheds some light on the matter before this court. Addi- tionally, the court notes that the Fourteenth Amendment to the Constitution of the United States is one of the sources of th» Voting Rights Act. See United States v. Marengo County Commission, 731 F.2d 1546, 1555 (11th Cir.1984), appeal dismissed, cert. denied, 469 U.S. 976, 105 S.Ct. 375, 88 L.Ed.2d 311 (1984). 30a publication to consider its full text, and were not deceived by the ballot’s words. Id. (footnote omitted). Analysis Quite clearly, the issues raised by plaintiffs in the case before this court are not identical to those issues dis- cussed in the cases above. However, the extensive ex- amination of the relevant statutory, regulatory and case law has convinced this court that the conduct attacked by plaintiffs in this case is not a standard, practice, or procedure as those terms are understood. First, it seems clear to this court that the Voting Rights Act addresses the right to vote; it does not address the deliberative process of local or state boards. Second, plaintiffs have presented no evidence to this court of any policy or math- ematical formula by which or pursuant to which the school board of Bibb County arrives at the manner in which any particular proposal decided to be in the best interests of education should be submitted to the elec- torate. Instead, like the situation presented in Dougherty County -No. 2, the evidence suggests that the decision to submit the proposed improvements to the voters in one question rather than in two or more questions was a singular decision premised upon the facts of this par- ticular situation. That the decision was to some degree premised upon political realities does not undermine that decision; nor does it make that decision in some fashion sinister or manipulative. Elected bodies like the school board of Bibb County, comprised of individuals nomi- nated and elected in presumably valid elections in which all voters had an equal opportunity to participate, must be afforded some freedom to engage in the traditional political tools of consensus-building and compromise to effectuate comprehensive plans for school and community development and improvement. Government in the United States, be it federal, state or local, takes the form of representative democracy. That does not mean, of course, ae A Ee 5 eh Se ne . ete eon tea: 3la that representatives 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 pursue 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 gov- ernment does not contemplate a vote by every individual on every single issue in isolation or in the abstract. Some trust and some faith must be placed in the elected rep- resentatives of the people. The Georgia cases discussed supra recognize that principle and establish boundaries beyond which that trust is suspect. And as those cases demonstrate, Georgia law provides various mechanisms by which the citizens may challenge the conduct of their representatives in this regard. To accept plaintiffs’ position in this matter is to in- vite chaos. Any and all matters which are to be sub- mitted to the electorate for its approval or disapproval, be that matter a proposal by a local board for a bond issue to construct a new high school or be it an amend- ment proposed by a state legislature, would be subject to challenge under the Voting Rights Act.® This court finds ® Language from Dougherty County No. 2 is informative on this point: In response defendant school board argues that plaintiff in effect is suggesting that under the Voting Rights Act the Attorney General or the United States District Court for the District of Columbia must pass judgment upon every board of education decision to grant or withhold leave without pay to an elected official to attend to the duties of his office. If this be true, the defendant board suggests the Voting Rights Act has removed the board’s authority to do anything without going to Washington for approval. Dougherty County No. 2, 579 F.Supp. at 1490, citing Dougherty County No. 1, 439 U.S. at 54, 99 S.Ct. at 380, 58 L.Ed.2d at 287 (Powell, J., dissenting). The basis of the concern expressed by the three-judge panel above has come to pass in the case sub judice. The following discussion, elicited during the hearing on plaintiffs’ 32a plaintiffs’ position unfounded either in law or in logic. Section 2(a) of the Voting Rights Act “prohibits all Section 5 claim, illustrates that the concern expressed by the three- judge panel in Dougherty County No. 2 was well founded. JUDGE HILL: Well now, let me be sure I understand your contention. Would that apply no matter how they came down if they—if they discussed what to put on, then whatever answer they came up with would be a Voting Rights Act change? Let me be a little clearer. Suppose they had come up with the idea, “We shall put each of these separate,” that would be a change? MR. BRADLEY: Yes, Your Honor. JUDGE HILL: And if they’d said, “We will put each school to be air conditioned separately,” that’d be a change and if they said, “We'll put them all together,” that would be a change so however they decided to put the question would have to be precleared ? MR. BRADLEY: When they’re deciding what questions to put on the ballot, yes, Your Honor. To back up from that to perhaps more clearly explain my position, if they debate whether or not to air condition schools and decide they’re going to air condition half of them— JUDGE HILL: Suppose they decide to air condiiton all of them but they decided the way to put this would be to put to the voters each as a separate bond issue, so many dollars to air condition School “A” and so many dollars for School “B” as a separate question and “C” and all the rest, that would be subject to preclearance? MR. BRADLEY: Yes, Your Honor. JUDGE HILL: And if they decided to air condition all the schools and put that question, “Sha.. we air condition all the schools? that would require preclearance ? MR. BRADLEY: Yes, Your Honor. JUDGE HILL: So there would be no question that could be put in a bond referendum anywhere in any jurisdiction covered by the Act that would not have to be precleared by the Department of Justice, would there? Could you conceive of one? MR. BRADLEY: Because bond issues are not regularly scheduled elections, I don’t believe I can conceive of one. JUDGE HILL: Well now, I’m assuming the date issue now is out of the window, that’s been precleared? MR. BRADLEY: Yes, Your Honor. JUDGE HILL: So even if you had—if the Constitution of a state established the dates upon which bond issues would 33a states and political subdivisions from imposing any quali- fications or prerequisites to voting, or any standards, practices, or procedures which result in the denial or abridgment of the right to vote... .” Thornburg v. Gingles, 478 U.S. at 438, 106 S.Ct. at 2762, 92 L.Ed.2d at 42. However, Section 2(b) expressly cautions that “nothing in [§ 2] establishes a right to have members of a protected class elected in numbers equal to their pro- portion in the population.” Jd. at 43, 106 S.Ct. at 2763, 92 L.Ed.2d at 42 (brackets in original). This statutory language establishes a boundary to the concept of “vote be put, the construction of the question would still be subject to preclearance, is that right? MR. BRADLEY: Yes, Your Honor. JUDGE FITZPATRICK: Let me ask you this question, what if we’re dealing with one school and you want to—the School Board says, “Well, we want to air condition this school and we also want to build a gymnasium there at this school and while we’re doing that, we need to enlarge the library to make the library more attractive and do three or four differ- ent projects all on this—in this same school,” would you have to separate each one of those projects, for instance, to give people [a chance] to say, “Well we want to air condition it but we don’t want the new gym. We don’t think we ought to re- furbish the library,” or “build a new teacher’s lounge,” or whatever, is that—am I off in the wild blue younder with this scenario? MR. BRADLEY: No, Your Honor. And my answer is the Board does not have to separate it; it can make whatever choice it wants to, to have five bond issues for each particular facility or to have one. JUDGE FITZPATRICK: Oh, you could have a bond issue to say to—dealing with Northwest School or Southeast School or whatever, $25,000,000 to air condition, build a gym, re- furbish the auditorium, all of that, and you could—you vote for it or against it? MR. BRADLEY: The Board could do that. JUDGE FITZPATRICK: And that would be okay? MR. BRADLEY: They would still have to submit it for preclearance under the Voting Rights Act. Transcript of November 1, 1988, Hearing Before Three-Judge District Court, pp. 9-12. 34a effectiveness”; by analogy, Section 2 clearly does not establish a right to have those proposals which must be submitted to the electorate phrased in such a way that any particular group is ensured of success. Yet that is what plaintiffs desire—an opportunity to isolate certain issues which are allegedly favorable to a particular group at the expense of a comprehensive plan which elected officials have formulated for the overall good of the com- munity. The reapportionment decisions of the Supreme Court ” support this court’s understanding of the term “vote ef- fectiveness” as that term relates to the concept of “dilu- tion.” Clearly, political units may not structure voting districts in such a manner as to make impossible the elec- tion of minority candidates. The matter before this court, _ however, is qualitatively different from such a situation. Here, each individual, black and white, had an oppor- tunity to cast an effective vote for or against a com- prehensive school improvement/development plan. The matter was thoroughly discussed in the community. No voter was misled. This court cannot find that “vote ef- fectiveness” means a right to vote on each individual issue considered by its elected officials. This court reiterates what the Burger court recognized earlier: every individual qualified to vote in the Novem- ber 8th election had the opportunity to express his or her approval or disapproval of the bond issue. Those voters, like the school board itself, had to weigh the pros and cons of the propasal as a whole. Then, based on their understanding of the merits of that proposal, the voters expressed their preference, albeit by a narrow ma- jority, to support a comprehensive scheme of improve- ment in the Bibb County school system. Such is the way in which the political system functions. 10 See Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976); Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973). : : ; : ; ; | 35a In conclusion, this court determines that the exercise of discretion by validly elected local board officials in de- termining 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. Alterna- tively, the court finds that even if such exercise of dis- cretion was a standard, practice, or procedure, such prac- tice does not affect voting. The manner in which the proposal was structured had and has absolutely no bear- ing upon the qualification of any individual to vote, the ability of any individual to register to vote, the oppor- tunity of any individual to cast his or her vote, or the manner in which any individual’s vote was tabulated. Plaintiffs’ claim as premised upon Section 2 of the Voting Rights Act is therefore DENIED." SO ORDERED. 11 The court’s resolution of this matter negates the need to con- sider the “results” of the alleged standard, practice, or procedure. The 1982 amendments to the Voting Rights Act re-instituted the “results” test, making clear that a Section 2 violation could be proved by showing discriminatory effect alone. See Thornburg, 478 U.S. at 35, 106 S.Ct. at 2758, 92 L.Ed.2d at 37. The court is aware that plaintiff has filed certain information regarding voting patterns in the bond issue and other elections. Plaintiff has also filed voluminous documents entitled plaintiffs’ request for judicial notice of historic racia] discrimination. The court has examined those pleadings; however, those documents are pertinent to the “results” aspect of this case, an issue which this court did not reach. 36a APPENDIX C THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 89-8556 DAVID LUCAS, et al., Plaintiffs-A ppellants, versus JUDY TOWNSEND, et ai., Defendants-A ppellees. On Appeal from the United States District Court for the Middle District of Georgia ON PETITION(S) FOR REHEARING AND SUGGESTION(S) OF REHEARING EN BANC (Opinion August 9, 1990, ilth Cir., 19—, —— F.2d ——») (October 30, 1990) Before: HATCHETT, Circuit Judge, RONEY* and FAIRCHILD **, Senior Circuit Judges. * See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. ** Hon. Thomas E. Fairchild, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation. 37a PER CURIAM: (X) The Petition(s) for Rehearing are DENIED and no member of this panel nor other Judge in regular ac- tive service on the Court having requested that the Court be polled on rehearing en bane (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are DENIED. ; ; 4 : ona eunes ENTERED FOR THE COURT: /s/ Joseph W. Hatchett United States Circuit Judge 38a APPENDIX D 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. Nov. 2, 1988 Neil Bradley, Atlanta, Ga., for plaintiffs. W. Warren Plowden, Ed S. Sell, Jr., Macon, Ga., Della Wager Wells, Atlanta, Ga., for defendants. Before HILL, Circuit Judge, OWENS, Chief Judge, and FITZPATRICK, District Judge. OWENS, Chief Judge: Included for consideration, by Bibb County voters on the general election ballot is the question of whether twenty-nine (29) million dollars of general obligation bonds should be issued to pay for the following improve- ments within the Bibb County school system: (1) air conditioning all existing schools not presently air condi- tioned; (2) building a fifth high school to serve a pro- jected 58% black—47% white student body; and (3) renovating Northeast High School into a magnet high school. The selection of November 8th, the date of the 39a general election, as the date for this bond referendum was submitted to and precleared by the Attorney General of the United States pursuant to the Voting Rights Act of 1965. Nevertheless, piaintiffs contend that the Voting Rights Act requires the submission to the Attorney Gen- era! of not only the date for this bond referendum but also the form or the structure of the question itself. Plaintiffs contend that the discretionary decision of the school board to submit the approval or disapproval of the entire twenty-nine (29) million dollar bond issue to the electorate as a single bond issue rather than to sub- mit the questions of (1) air conditioning existing schools, (2) constructing a new school, and (3) renovating North- east High School as three separate bond issues is a “change affecting voting.” ’ Arguing that the form of the bond referendum has been neither submitted to nor precleared by the Attorney General,’ plaintiffs ask this three-judge court * to enjoin the inclusion of this bond referendum on next Tuesday’s general election ballot. DISCUSSION In 1965 Congress enacted the Voting Rights Act to eliminate the racial discrimination in voting that Con- gress believed to still exist in a minority of the states of 1 During oral arguments held before a district court of three judges, plaintiffs argued that the school board’s decision would have been equally as cognizable under Section Five of the Voting Rights Act if the board had determined to submit the issues to the electorate as separate questions rather than as a single package. Thus, plaintiffs effectively argue that any question submitted by ballot to the electorate must be precleared by the Attorney General. 2 The parties disagree as to whether the form of the question was in fact submitted to and precleared by the Attorney General. In light of this court’s decision, see Discussion, ante, the court need not address this dispute. 3“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. § 1973c. 40a these United States, chiefly those in the traditional South. As contemplated, only eleven states were brought within the coverage of the Act—South Carolina, Alabama, Alaska, Georgia, Louisiana, Mississippi, Virginia, twenty-six counties in North Carolina, three counties in Arizona, one county in Hawaii, and one county in Idaho. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 808, 15 L.Ed.2d 769 (1966). Section Five of the Act, 42 U.S.C. § 1973c, provides that whenever a covered state or political subdivision “shall enact or seek to administer any voting qualifica- tion or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964 .. .” it may not utilize or implement such change until (a) it has secured a judicial determination in the United States District Court for the District of Columbia that the change does not have the purpose or effect of denying the right to vote on account of race or (b) it has submitted such change to the Attorney General of the United States and the Attorney General has not interposed an objection within sixty days. While the Act does not specifically provide a remedy for failure to comply with Section Five, the Supreme Court has held that a complaint for injunc- tive relief to be heard by a district court of three judges may be filed in any United States District Court and that court, if it is shown that Section Five applies, must en- join the utilization or implementation of such change until Section Five is complied with. Allen v. Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). A district court of three judges convened pursuant to Section 5 of the Voting Rights Act conducts a limited in- quiry. First, the court determines whether questioned activity is a covered voting change. If, and only if, that question is answered in the affirmative, the court then determines whether the_questioned activity has been pre- cleared either by the Attorney General or by declaratory 4la judgment from the United States District Court for the District of Columbia. See United States v. Board of Supervisors, 429 U.S. 642, 645-47, 97 S.Ct. 833, 834-35, 51 L.Ed.2d 106, 110 (1977). While to effectuate the purpose of the Voting Rights Act, Section 5 is to be given broad scope, NAACP v. Hampton County Election Comm., 470 U.S. 166, 175-76, 105 S.Ct. 1128, 1133-34, 84 L.Ed.2d 124, 182 (1985); Allen v. Board of Elections, 393 U.S. 544, 566-67, 89 S.Ct. 817, 832-33, 22 L.Ed.2d 1, 17-18 (1969), “[t]he language of § 5 clearly provides that it applies only to proposed changes in voting procedures.” Beer v. United States, 425 U.S. 130, 138, 96 S.Ct. 1857, 1362, 47 L.Ed.2d 629, 638 (1976), quoted in McCain v. Lybrand, 465 U.S. 236, 245, 104 S.Ct. 1037, 1043, 79 L.Ed.2d 271, 279 (1984). Plaintiffs contend that the school board’s exercise of its discretion in submitting the school improvement plan to the voters as a single question is by definition a “change affecting voting.” Defendants vigorously argue that the school board’s exercise of its discretion in this matter is not a “change affecting voting.” While the exercise of discretion in setting dates for elections, changing candidate qualifications or altering voting procedures have all been held to constitute changes requiring Voting Rights Act preclearance, see e.g., NAACP v. Hampton County Election Comm., supra; Dougherty County, Georgia, Board of Education v. White, 439 U.S. 32, 99 S.Ct. 368, 58 L.Ed.2d 269 (1978) ; Allen v. State Board of Elections, supra, plaintiffs have cited no authority for the proposition that a school board’s or any other board’s exercise of discretion in formulating a question to be submitted to the electorate constitutes a change affecting voting. Likewise, defendants are unable to provide this court with authority supporting their po- sition that it is not a covered change. Though not binding upon this or any other court, the Attorney General’s interpretation of both the scope of 42a Section 5 and his regulations promulgated thereunder is entitled to particular deference. See Dougherty County, Georgia, Board of Education, 439 U.S. at 39, 99 S.Ct. at 372, 58 L.Ed.2d at 278; NAACP v. Hampton County Election Comm., 470 U.S. at 178-79, 105 S.Ct. at 1135- 36, 84 L.Ed.2d at 134. Due to the novel nature of plain- tiffs’ contentions and the absence of either case authority or a regulation on point, the Attorney General was in- vited by the panel of three judges to submit his views on the matter under consideration. In response, the United States of America applied for leave to participate in this case as amicus curiae. The United States’ application was granted on November 1, 1988. In its amicus curiae brief, the United States noted that state law enables county school boards to seek the issu- ance of bonds upon a determination that the incurrence of such debt is in the “best interests of education in the county.” Brief for United States as Amicus Curiae (“Amicus Brief”), 3; 0.C.G.A. § 20-2-430. “[DJecisions such as the manner in which the purpose of the bonds is identified, whether to seek, at one election, a single bond or several separate bonds for discrete projects or to pre- sent separate bond requests at different elections, are left to the defendants’ discretion.” Amicus Brief at 4 (foot- note omitted). Commenting upon the above-described state procedure, the Attorney General stated that ‘‘the normal formulation of policy by elected representatives, e.g., setting employees’ salaries, hiring employees, adopt- ing capital budgets, [does] not constitute [a change] af- fecting voting, even though [the decisions] result in the exercise of discretion and even though a referendum may be required for final decision.” Jd. at 16. The Attorney General concluded that “the board’s decision to air con- dition existing schools and to construct new schools is a routine matter for the board to decide and attracts no pre-clearance obligation.” Jd. Further, the schoo] board’s “discretionary decision to present the voters with a sin- gle vote on the entire bond project is not the kind of 43a change subject to preclearance.” Jd. Such a decision is a “normal legislative decision unrelated to the process of holding elections.” Jd. at 17. After careful consideration, this court agrees with the views held by the United States. First, Georgia school boards before November 1, 1964, were authorized to and had exercised their discretion in formulating questions for bond referendums. 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 referendum is not a standard, practice or procedure affecting voting. The discretionary decision to submit one or more ques- tions to the electorate is one properly left to the political process. It tortures the language of the Act to conclude that [the form of a question on a bond referendum], hav- ing nothing to do with the conduct of elections as such, is state action “with respect to voting.” No one is denied the right to vote; nor is anyone’s ex- ercise of the franchise impaired. Dougherty County, Georgia, Board of Education, 439 U.S. at 51, 99 S.Ct. at 379, 58 L.Ed.2d at 286 (Powell, J., dissenting) (language within brackets substituted for original by this court). Plaintiffs’ motion for a preliminary injunction is thus DENIED this 2nd day of November, 1988. 444 APPENDIX E 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. March 7, 1989 Neil Bradley, Laughlin McDonald, Kathleen Wilde and Derek Alphran, American Civil Liberties Union Founda- tion, Inc., Atlanta, Ga., for plaintiffs. Craig N. Cowart and W. Warren Plowden, Jones, Cork & Miller, Ed. S. Sell, Jr. and Buckner F. Melton, Sell & Melton, Macon, Ga., and Della Wager Wells, King and Spalding, Atlanta, Ga., for defendants. Before HILL, Circuit Judge, OWENS, Chief Judge, and FITZPATRICK, District Judge. ORDER 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 required to be heard by this 28 U.S.C. § 2284 court of three judges, this court of three judges, for the reasons : 45a set forth in its order of November 2, 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, Georgia rather than to submit four separate bond issues for the four categories of school improvements to be paid for by said bond issue, 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 preclearance. There being no further issues to be decided by this court of three judges, this court of three judges does hereby dissolve itself, leaving all remaining issues to be decided by the originating judge. Further, there being no just reason to delay entry of judgment on plaintiffs’ Section Five claims, the clerk is expressly directed to enter judgment thereon for the defendants. Rule 54:b), Federal Rules of Civil Procedure. SO ORDERED. 46a APPENDIX F IN THE SUPREME COURT OF THE UNITED STATES No. 89-400 DAVID LUCAS, ef al., appellants v. JUDY TOWNSEND, etc., et al. Appeal from the United States District Court for the Middle District of Georgia Former decision, 110 S.Ct. 230; 110 S.Ct. 319. Case below, 686 F.Supp. 902; 698 F.Supp. 909; 714 F.Supp. 525; 732 F.Supp. 1581. Jan. 22, 1990. The judgment is affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1009%3A1. Public record. Not legal advice.