Opposition Brief — Dupree v. Moore

Supreme Court, U.S.

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No. 04077

| orsieGeok THE CLERK

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in THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

JOHNNY DUPREE, et al.,

Appellants,

Ve

MIKE Moore, et al.,

Appellees.

On Appeal From The United States District Court

For The Southern District Of Mississippi

APPELLANTS’ BRIEF OPPOSING

MOTION TO DISMISS OR AFFIRM

HoLMEs S. ADAMS

(Counsel of Record)

W. DAvID WATKINS

PERRY SANSING

BRUNINI, GRANTHAM, GROWER & HEWES

1400 Trustmark Building

Post Office Drawer 119

Jackson, Mississippi 39205

(601) 948-3101

Counsel for Appellants

August 12, 1991

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

Il.

TABLE OF CONTENTS

ie

. The Regulatory Changes Since 1986 Do Not

Limit the Effect of the Decision Below ......

The July 1986 Submission Did Not Specifi-

cally Identify the Voting Change Effected by

the Repeal of Section 37-7-611 ...............

TABLE OF AUTHORITIES

CASES

City of Pleasant Grove v. United States, 479 U.S.

Ge CAEP vhitctirtncsiummnnaeaee 3

Clark v. Roemer, 59 U.S.L.W. 4583 (U.S. June 3,

DIED. wiiinicitovnscnsititinsnisiwiebiiidadidecnaayitisdamaeaataameiaaaias 1-2,5-7

Greenville Public School Dist. v. Western Line Con-

sol. School Dist., 575 So.2d 956 (Miss. 1990) . 8

Hathorn v. Lovron, 457 U.S. 255 (1982) ............... 9

McCain v. Lybrand, 465 U.S. 236 (1984) ............. 1-2,6-7

Morris v. Gressette, 482 U.S. 491 (1977) ............... 7

NAACP v. Hampton County Election Comm., 470

Re BEND TEEN. sercenicevsisvcrsnepaniotanenniuanannieines 3

Woods v. Hamilton, 473 F. Supp. 641 (D.S.C.

SETUP cisisisteinisitecctiabicsichaslinaiaasdsadiialiiiasminers 7

STATUTES AND REGULATIONS

SD CF ee ee te wrcttnientarntiteintcieens a 4

SB CP ae. BOR ee eietiticttincrcintinnitiitannns 3

BE SB Bee Ce setansisie tren tien ibtianiinsistiadiaacan 3

Miss. Code Ann. § 37-7-611 (1972) ...............ccceeeeeeees 1,6-9

Miss. Code Ann. § 37-7-103 (1990) ....... papel acini 8-9

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

No. 90-1977

JOHNNY DUPREE, et al.,

Appellants,

Vv.

MIKE Moore, et al.,

Appellees.

APPELLANTS’ BRIEF OPPOSING

MOTION TO DISMISS OR AFFIRM

I. Introduction

This appeal concerns the District Court’s misappli-

cation of the well-settled requirement that a jurisdic-

tion subject to the Voting Rights Act submit its voting

changes to the Attorney General for administrative

preclearance in a clear and unambiguous manner. In

McCain v. Lybrand, 465 U.S. 236 (1984), and more

recently in Clark v. Roemer, 59 U.S.L.W. 4583 (U.S.

June 3, 1991), the Court unanimously ruled that a

state’s failure to identify a voting change in its sub-

mission defeats any claim by the state that the

Attorney General precleared the change. Here, the

District Court held that the State of Mississippi prop-

erly submitted the voting change effected by the re-

peal of Miss. Code Ann. § 37-7-611 in July 1986 even

though, as the State conceded in 1989, the change

“‘was not specifically identified’ in the 1986 submis-

sion. App. 128a. The District Court’s decision conflicts

with McCain and Clark and, according to the Attorney

General of the United States, will have a detrimental

effect on administrative preclearance under § 5.

In urging affirmance or dismissal, Appellees’ pri-

mary argument is that the effect of the District

Court’s decision will be insignificant and for that rea-

son does not warrant further review by the Court.

The basis for their argument is that two of the

Attorney General’s regulations governing § 5 submis-

sions have been changed since the State’s submission

was made in July 1986. Appellees suggest any ad-

verse effect of the decision on administrative pre-

clearance will be minimal.

Appellees’ main contention is severely undercut by

the position of the Attorney General who participated

as amicus curiae in the District Court. The Attorney

Genera! joined as amicus because of ‘‘the important

issues raised by this case with regard to the enforce-

ment of Section 5 ... and the procedures that a

jurisdiction covered by Section 5 must follow when

submitting voting changes to the Attorney General

for Section 5 administrative preclearance.”’ Memoran-

dum of the United States as Amicus Curiae, p.1. The

Attorney General characterized Appellees’ interpre-

tation of the Voting Rights Act and the regulations

governing § 5 submissions as “plainly incorrect.”’ Id.

at 2-3. He further noted that if Appellees’ position

prevailed it ‘‘would do substantial harm to the Section

5 administrative preclearance process” and impede

“the ability of the Attorney General to carry out his

responsibilities for administering the preclearance

process.”’ Jd. at 2, 19. In the light of the considerable

deference accorded the Attorney General’s views in

§ 5 matters,'! Appellees’ primary argument should be

rejected.

II. The Regulatory Changes Since 1986 Do Not Limit the

Effect of the Decision Below.

The first of the two regulatory changes upon which

Appellees rely became effective in 1987 and requires

that a state submit to the Attorney General a copy

of the prior law being amended or repealed. 28 C.F.R.

§ 51.27(b) (1990). In 1986, this requirement did not

exist. Appellees contend that supplying a copy of the

prior law being amended or repealed ‘‘does much to

clarify any aileged ambiguities surrounding submis-

sions today.” Joint Motion of State and Forrest

County School District, p.11.

The second regulatory change concerns the

Attorney General’s authority to request additional in-

formation in response to an incomplete submission.

In 1986, this requirement stated that the Attorney

General “‘shall’’ request additional information in re-

sponse to a deficient submission. Today, the Attorney

General ‘“‘may’’ request additional information. 28

C.F.R. § 51.37(a). Appellees fail to explain how the

change from “‘shall’’ to ‘“‘may”’ will ensure more clar-

ity in a state’s § 5 submission.

The Attorney General explained in his amicus mem-

orandum filed in the District Court that these two

regulatory changes do not alter the fundamental re-

1 See, e.g., City of Pleasant Grove v. United States, 479 US.

462, 468 (1987); NAACP v. Hampton County Election Comm.,

470 U.S. 166, 179 (1985).

quirement that a state identify with specificity the

voting change for which it seeks preclearance. In

1986, the regulations required that a state supply a

copy of the law embodying the voting change sub-

mitted for preclearance. Jd. § 51.25(a) (1986). The reg-

ulations also required that if the voting change was

not “readily apparent on the face of the document

provided under’’ § 51.25(a), the submission should con-

tain ‘‘a clear statement of the change explaining the

difference between the submitted change and the prior

law or practice, or explanatory materials adequate to

disclose to the Attorney General the difference be-

tween the prior and proposed situation with respect

to voting.”’ Id. §51.25(b). In short, the regulations

required a state to identify the voting change pre-

sented for review.

Today, ‘‘a clear statement of the change’”’ need not

be made ‘“‘if the change is readily apparent from ex-

amining the new enactment and the enactment that

was repealed, amended, or otherwise changed.”

United States Amicus Memorandum, p.15 n.5. In

1986, “the procedures specified more narrowly that

the change needed to be readily apparent solely from

examining the enactment embodying the change in

order to omit providing ‘a clear statement of the

change.’”’ Jd. The regulation requiring a copy of the

prior law being amended or repealed provides a state

“greater latitude’ in preparing its submission, 7d., but

does not diminish the state’s responsibility to identify

clearly each voting change presented for preclearance.

The new regulation is merely a recognition that in

some cases, but not all, the voting change will be

apparent from a comparison of the new law and the

prior law.

The position advanced by Appellees and adopted by

the District Court undermines the effectiveness of the

§5 regulatory scheme by shifting to the Attorney

General the obligation to research a state’s submission

to uncover voting changes the state either is unaware

of or fails to identify. Pointing to the thousands of

voting changes reviewed annually by the Attorney

General, the Court in Clark v. Roemer rejected this

interpretation of § 5:

‘“{Bjecause of the acknowledged and antic-

ipated inability of the Justice Department—

given limited resources—to investigate inde-

pendently all changes with respect to voting

enacted by States and subdivisions covered

by the Act,’’ Congress required each juris-

diction subject to § 5, as a condition to im-

plementation of a voting change subject to

the Act, to identify, submit, and receive ap-

proval for all such changes. The District

Court’s holding upsets this ordering of re-

sponsibilities under § 5, for it would ada to

the Attorney General’s already redoubtable

obligations the additional duty to research

each submission to ensure that all earlier un-

submitted changes have been brought to

light.

59 U.S.L.W. at 4586 (citation omitted).

III. The 1986 Submission Did Not Specifically Identify the

Voting Change Effected by the Repeal of Section 37-7-611.

Appellees’ other arguments concern the validity of

the 1986 submission.

1. Appellees contend the use of the phrases “the

complete act is submitted for review’ and “‘in its

entirety” in a submission is a proper substitute for

identifying the voting changes it wishes precleared by

the Attorney General. This view of the preclearance

process cannot be squared with McCain and Clark.

McCain held that preclearance by the Attorney Gen-

eral “‘is limited to the changes which a covered ju-

risdiction has identified by its submission.’”’ 465 U.S.

251 n.20. Clark held that a state ‘‘must identify with

specificity each change that it wishes the Attorney

General to consider.” 59 U.S.L.W. at 4586.

2. During the five-year submission history of the

Uniform School Law, the State made a number of

representations that the voting change effected by the

repeal of § 37-7-611 had not been specifically identi-

fied in the July 1986 submission. See, e.g., App. 115a,

117a-118a, 128a, 145a. Nevertheless, Appellees argue

that ‘“[njot only was the scope of the [1986] submis-

sion unambiguous, but the State clearly identified any

voting changes involved in this appeal.’”’ Joint Motion,

p.16. The basis for this contention is that § 37-7-611

was “addressed in the loose-leaf notebook.’’ Jd. Sec-

tion 47 of the Uniform School Law repealed twenty-

three statutes, including § 37-7-611, and listed them

in a string citation, followed by the comment that

these statutes “provide for the creation and operation

of municipal separate school districts [and] are hereby

repealed.”’ App. 75a.

Rather than acknowledge the State’s failure to sat-

isfy its obligation to identify this voting change,

Appellees blame the ambiguity on the Attorney Gen-

eral’s ‘disregard of information clearly set forth in

the submission.”’ Joint Motion, p.16. The underlying

premise of Appellees’ position, as well as the District

Court’s decision, is that a state’s submission will be

considered complete and unambiguous simply if it re-

quests that an act be reviewed “‘in its entirety,’’ re-

gardless whether the voting changes created by the

act are specifically identified or explained. To accept

this position would encourage ambiguous submissions

by jurisdictions that would later attempt to take ad-

vantage of the ambiguity by claiming unidentified vot-

ing changes were precleared.

In recognition of the inconsistency in their position,

Appellees ask the Court to disregard the State’s re-

marks as irrelevant. The State’s representations to

the Attorney General that the repeal of § 37-7-611

was not submitted in July 1986 plainly show the State

believed the repealer had not been submitted.

3. Appellees’ reliance on Morris v. Gressette, 432

U.S. 491 (1977), is misplaced because the issue pre-

sented in this appeal—whether a voting change was

actually submitted to, and evaluated by, the Attorney

General—was not present in Morris. The submission

in Morris was unambiguous. Jd. at 502, 504 & n.19.

Appellees also rely on Woods v. Hamilton, 473 F.

Supp. 641 (D.S.C. 1979), in which the court held that

a submission by South Carolina of its Home Rule Act

constituted submission of the entire Act. Whether

Woods was correctly decided in 1979 is of no moment

because later Supreme Court precedent establishes

that a §5 submission of legislation to the Attorney

General with a general request for preclearance is

appropriate only if the voting changes effected by the

legislation are ‘‘clearly defined.”’ Clark, 59 U.S.L.W.

at 4585-86; McCain, 465 U.S. at 256. If Woods stands

for a state’s right to submit omnibus legislation in

general terms for preclearance and by doing so ob-

ligate the Attorney General to uncover and then re-

view voting changes that were not initially explained

or identified by the state, the decision should be over-

ruled.

4. Appellees point to language in the 1987 submis-

sion of the repealer of § 37-7-611 (App. 114a) that

purports to preserve the State’s right to argue that

the repealer had already been submitted and pre-

cleared. Joint Motion, p.8. Identical language ap-

peared in the July 1986 submission (App. 34a) and in

the State’s submission of §§ 60 and 84 of the Uniform

School Law in May 1987. This language is an attempt

to preserve an argument that the legislation submit-

ted does not affect voting. It is difficult to believe

the State, in submitting § 47 of the Uniform School

Law in December 1987, chose not to articulate its

position that the repealer had already been submitted

and precleared or at least inquire of the Attorney

General regarding the precise status of the repealer.

5. Appellees’ contention (Joint Motion, p.4-5) that

the amendment to § 37-7-103, as set forth in § 52 of

the Uniform School Law, ‘‘replaced all conflicting pro-

visions regarding the movement of school district

lines,” including § 37-7-611, was not made in July

1986. If successful, Appellees’ attempt to capitalize

on the ambiguity in its July 1986 submission by now

claiming preclearance of unidentified voting changes

will only encourage ambiguous submissions and un-

dermine the process of administrative preclearance.

6. Relying on Greenmille Public School Dist. v. West-

ern Line Consol. School Dist., 575 So.2d 956 (Miss.

1990), petition for cert. filed, 59 U.S.L.W. 3839 (U.S.

June 3, 1991) (No. 90-1861), in which the court held

that § 37-7-611 was repealed by implication because

of the amendment to §37-7-103, Appellee Lamar

County School District argues the state court decision

provides an independent and adequate state ground

upon which to affirm the District Court. Lamar Coun-

ty’s position essentially advocates the doctrine of

“preclearance by implication,” reasoning that pre-

clearance may be effectuated by application of state

rules of statutory construction and thereby avoid ad-

ministrative or judicial preclearance. Under this novel

theory, Mississippi would apparently be required to

obtain preclearance when its voting laws are ex-

pressly repealed by the state legislature but not when

they are held repealed by implication by a state court.

This argument is a request for the Court to place

beyond the reach of the Voting Rights Act any voting

change implemented because of a state court order.

The Court rejected this precise argument in Hathorn

v. Lovron, 457 U.S. 255, 265 n.16 (1982): ‘‘[A] state

court decree directing compliance with a state election

statute contemplates administrat[ration] of the state

statute within the meaning of § 5.”

Appellants urge that probable jurisdiction be noted.

10

Respectfully submitted,

HOLMES S. ADAMS

(Counsel of Record)

W. DAVID WATKINS

PERRY SANSING

BRUNINI, GRANTHAM, GROWER & HEWES

1400 Trustmark Building

Post Office Drawer 119

Jackson, Mississippi 39205

Telephone: (601) 948-3101