Amicus Curiae Brief — Richards v. Terrazas

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—

(5 Supreme Court, US.

a 2-2 3D

No. 91-1270

Iu the Supreme Court of the United States ““*

OCTOBER TERM, 1991

ANN RICHARDS, GOVERNOR OF TEXAS, ET AL.,

APPELLANTS

LOUIS TERRAZAS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

JOHN R. DUNNE

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

DAVID O. SIMON

Acting Deputy Assistant

Attorney General

THOMAS G. HUNGAR

Assistant to the Solicitor General

JESSICA DUNSAY SILVER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court properly determined

that the State of Texas’s newly enacted redistricting

plan required preclearance under Section 5 of the

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

2. Whether preclearance under Section 5 estab-

lishes the prima facie validity of a redistricting plan

so as to preclude interim injunctive relief under Sec-

tion 2 of the Voting Rights Act of 1965, 42 U.S.C.

1973, absent extreme and unique circumstances.

(1)

TABLE OF CONTENTS

Page

Nee asian ceinabinnanneantncensnenn 1

en NODS ge Ee EO 7

EE ee 17

TABLE OF AUTHORITIES

Cases:

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

a ll cranesennnetn - 15

Beer v. United States, 425 U.S. 180 (1976) ......000.... 8

Burns V. Richardson, 384 U.S. 73 (1966) ............... 14

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

eg fT SESS Oa 10, 11

City of Richmond vy. United States, 422 U.S. 358

Ts casnnsinsnnnmnennnnes 10

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

EELS ES Coe 10

Clark v. Roemer, 111 S. Ct. 2096 (1991) ............. 11, 12, 15

Connor V. Waller, 421 U.S. 656 (1975) .....00000... 12

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

Neen at nasnmeonntnne 1l

Garcia V. Guerra, 744 F.2d 1159 (5th Cir. 1984),

cert. denied, 471 U.S. 1065 (1985) -.....000 2. 12

Gunn Vv. Chickasaw County, 705 F. Supp. 315

ae os cscusnnsnnnhanmnntinanoonane 15

Hathorn Vv. Lovorn, 457 U.S. 255 (1982) ................. 9,13

Lockhart v. United States, 460 U.S. 125 (1983)... 8

Major v. Treen, 574 F. Supp. 325 (E.D. La.

ES 15

Martin Vv. Allain, 658 F. Supp. 1183 (S.D. Miss.

a. cinigsbansieedisnnenennninonn 15

McDaniel v. Sanchez, 452 U.S. 130 (1981) ...... 8, 13, 15-16

Mississippi State Chapter, Operation PUSH v.

Allain, 674 F. Supp. 1245 (N.D. Miss. 1987)... 15

Morris Vv. Gressette, 482 U.S. 491 (1977) .............. 12,14

NAACP v. Hampton County Election Comm’n, 470

ESE 11, 12, 13

Perkins v. Matthews, 400 U.S. 379 (1971) .-............ 9,13

(III)

Cases—Continued : Page

Presley v. Etowah County Comm’n, 112 S. Ct. 820

| ee 8

Terrazas V. Ramirez, No. D-1817 (Tex. Sup. Ct.

BI, . Soa: SPU '<sictateinssseigpiisciiatnicacibcabistanlansietibaadlatilipciase 2-5

United Jewish Orgs. of Williamsburgh, Inc. V.

Carey, 430 U.S. 144 (1977) ......... 8

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

IIIT siicicassscnecinicentnstnictnecenctinnnaniintsnissinnambigniiciemansntonsiinae 11

United States v. Board of Supervisors, 429 U.S.

I FED cccentiinlhesennitieieiistveecitininnnnnnicinnindiinanainnin 9,13

United States v. East Baton Rouge Parish School

Bd., 594 F.2d 56 (5th Cir. 1979) ........................... 15

Upham v. Seamon, 456 U.S. 87 (1982) ..........-.......--- 11,12

White v. Weiser, 412 U.S. 793 (19738) ..................... 11

Wise v. Lipscomb, 487 U.S. 535 (1978) ........... 8, 12, 13, 14

Constitution, statute, regulations and rule:

U.S. Const. Amend. XIV (Equal Protection

RES 2 a Oe ET NTS RN Tc EUS STOO 2

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

5 R gk Fk. Seeepnenemn 1, 3, 6, 7, 14, 15, 16

SAE Ue: MOET istciciscenihcchniseditcnsenhaitiniasieaiahinaasciinniaeel passim

28 C.F.R.:

TI cian ieieanen eatin ehasinisdemndgipigiics 10

RETESET SONA PORTAL I TO nea 8

I cau eannbensiataeiigetiods 14

II OE 7

Sup. Ct. R.:

il adel ual 16

| SEI eae ee ee nee 207 a ee A oe 16

Miscellaneous:

a Se COD Siectdniviitcacccenncicetincsnctnccin 8

S. Rep. No. 295, 94th Cong., Ist Sess. (1975) -........... 9

Tex.:

H.B. 2, Tex. Special Sess. (Jan. 8, 1992) _...... 4,5, 12

S.B. 1, Tex. Special Sess. (Jan. 8, 1992) -........... passim

S.B. 31, Tex. Special Sess. (May 15, 1991)......... 1,2,8

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1270

ANN RICHARDS, GOVERNOR OF TEXAS, ET AL.,

APPELLANTS

Vv.

LOUIS TERRAZAS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

STATEMENT

This brief is filed in response to the Court’s invita-

tion to the Solicitor General to express the views of

the United States.

1. In May 1991, the State of Texas enacted Senate

Bill (S.B.) 31, which redistricted the State Senate in

light of the 1990 census. Appellees Terrazas, Angelo,

and Craddick promptly filed suit in federal district

court challenging that plan. J.S. App. 27a. They al-

leged that the plan diluted minority voting strength

in violation of Section 2 of the Voting Rights Act of

1965, 42 U.S.C. 1973. J.S. App. 27a, 38a. They also

(1)

alleged that the redistricting plan was the product of

partisan gerrymandering in violation of the Equal

Protection Clause of the Fourteenth Amendment. J.S.

App. 27a, 34a. A three-judge court was convened to

consider those claims. Jd. at 27a.

Meanwhile, another group of voters (the Mena

plaintiffs) had challenged S.B. 31 in state court. J.S.

App. 27a. They alleged that the 1990 census under-

counted minorities and that S.B. 31’s use of census

data in redistricting violated the Texas Constitution.

Id. at 26a-27a. In August 1991, the state trial court

ruled in favor of the Mena plaintiffs, and ordered the

State to submit new redistricting plans using adjusted

population data. Jd. at 28a.

The parties to the state court proceeding then nego-

tiated a compromise redistricting plan. J.S. App.

29a. In October 1991, the state trial court entered the

settlement plan in a new suit styled Quiroz v. Rich-

ards. Ibid. The State promptly withdrew its previ-

ous submission of S.B. 31 to the Department of Jus-

tice for preclearance under Section 5 of the Voting

Rights Act, 42 U.S.C. 1973c, seeking instead to have

the Department preclear the new Quiroz plan. J.S.

App. 29a. The Department of Justice precleared that

plan in November 1991. Jbid.

Appellees—the plaintiffs in the federal court action

—then filed a mandamus petition in the Texas Su-

preme Court challenging the Quiroz plan on state law

grounds. J.S. App. 30a. In December 1991, the

Texas Supreme Court granted the petition, concluding

that the state trial court had abused its discretion by

approving the Quiroz plan without first conducting an

adversary proceeding. Jbid. The supreme court or-

dered the trial court’s plan vacated. Terrazas v. Ra-

mirez, No. D-1817 (Tex. Sup. Ct. Dec. 17, 1991). As

a result, the State was left without any valid redis-

tricting plan to implement for the upcoming primary

elections: S.B. 31 could not be implemented because

it had never received Section 5 preclearance, and the

Quiroz plan could not be implemented because it had

been invalidated under state law.

2. In October 1991, the three-judge federal district

court in this case had invited the parties to submit

proposed interim redistricting plans to be used in the

event that no state plan received Section 5 preclear-

ance in time for the 1992 elections to proceed as

scheduled. J.S. App. 29a-30a. On December 24, 1991,

following the Texas Supreme Court’s invalidation of

the Quiroz plan, the three-judge court adopted its own

interim redistricting plan for the S.ate Senate. 7d.

at 49a. The court explained that it was compelled to

act because “there are no legal plans reapportioning

seats for election to the Texas * * * Senate that have

been precleared by the [Department of Justice].” Jd.

at 3la. The court specifically noted that the Quiroz

plan was not effective under state law, but was merely

a non-binding alternative proposal that happened to

have received preclearance. Jd. at 39a.

The court concluded that the invalidation of the

Quiroz plan left S.B. 31 as the clearest expression of

the State’s redistricting policy. J.S. App. 38a, 43a,

48a. Accordingly, the court examined appellees’

claims that S.B. 31 violated Section 2 and the federal

Constitution, and found that appellees hi 1 established

a likelihood of success on their Section 2 claim. J.S.

App. 38a-48a. Accordingly, the court entered its own

“interim plan” for the March 10, 1992, primary elec-

tions that purported to remedy the perceived Section

2 violations. J.S. App. 19a. The court also extended

the filing deadline for the March 10 primary to Jan-

uary 10, 1992.

Judge Garwood dissented in part. He noted that

the Governor had recently called the Texas State Leg-

islature irto special session to adopt a new redistrict-

ing plan. Judge Garwood would have expressly re-

served for the State an opportunity to craft a lawful

alternative to the court’s interim plan, provided that

the State was able to do so in a timely manner. J.S.

App. 5la.

8. On January 8, 1992, during the special session

called by the Governor, the Texas State Legislature

enacted the Quiroz plan, now denominated 8.B. 1, for

use in the March 10 primary. J.S. App. 4a-5a; J.S. 6.

In addition, the legislature enacted House Bill (H.B.)

2, which extended the filing deadline for State Senate

candidates to January 17, 1992. H.B. 2 also provi-

sionally altered the timing of the primary elections,

retaining March 10 as the preferred date but setting

April 11 as the fallback date in the event that the

Quiroz plan had not been ordered into effect by the

court by January 17. J.S. 6.

On January 9, 1992, the State filed a motion with

the three-judge district court asking that court to

vacate its December 24, 1991, interim plan and to al-

low S.B. 1 to take effect. J.S. App. la-2a. The State

also submitted S.B. 1 to the Department of Justice for

preclearance under Section 5. Mot. to Aff., App. C4.

The district court denied the State’s motion on

January 10, 1992. The court saw no indication that

S.B. 1 “would enhance minority voting strength over

that provided in [the] [c]ourt’s interim plan.” J.S.

App. 5a. Rather, the court found that its own plan

“provides a greater opportunity for all minority citi-

zens of the State of Texas to elect representatives of

their choosing.” Jbid.

The district court acknowledged the principle that

a federal court must afford a State a reasonable op-

portunity to remedy defects in its redistricting plans

before resorting to the remedy of a court-ordered

plan. J.S. App. 2a. In this case, however, the court

found that implementation of S.B. 1 and H.B. 2 at

this late date “would result in postponement of the

1992 primary” and cause a “tremendous drain on

the public treasury for the apparent benefit of so

few.” Jd. at 8a. Although H.B. 2 purported to leave

the March 10 primary date intact, the court observed

that under Texas law the new redistricting legisla-

tion would not take effect until mid-April. Jd. at 9a.

The court also noted that the Department of Justice

would be required to take a fresh look at the purpose

and effect of S.B. 1 and H.B. 2 under Section 5 of

the Voting Rights Act; the newly enacted plan was

not automatically precleared simply because the De-

partment of Justice had precleared the same map

after the entry of the Quiroz settlement. J.S. App.

10a-lla. Moreover, the court noted that it would be

required to hold a hearing to consider objections to

the legality of S.B. 1, further delaying the time when

a primary could occur. J.S. App. lla. For these rea-

sons, the court concluded that any effort to implement

S.B. 1 would likely require postponing the scheduled

primary elections until the summer of 1992. Jbid.

This delay would cost approximately 10 to 15 million

dollars, and might cause voter confusion and reduced

voter turn-out, especially among Hispanic voters. /d.

at lla-12a.

Alternatively, the court held that even if SB. 1 re-

ceived preclearance under Section 5, the court would

not approve its use as an interim plan. J.S. App.

12a-13a. The court explained that it “ha[d] already

reviewed testimony and other evidence on the Senate’s

substitute plan during the December hearings and

finds it fails to satisfy the Sec. 2 requirements of the

Voting Rights Act.” Id. at 13a.

Judge Garwood dissented. He indicated that he

would have entered an order that provided for numer-

ous alternative scenarios, dependent upon the receipt

and timing of Section 5 preclearance. His order would

have provided that if the Department of Justice ob-

jected to S.B. 1 by January 17, the court-ordered plan

would be used on March 10. If the Department pre-

cleared S.B. 1 by January 17, the court would then

pass on the legality of S.B. 1 under Section 2; if the

court found the plan to be lawful, it would be im-

plemented for the March 10 election. If the Depart-

ment did not preclear or object to the plan by January

17, Judge Garwood would move the primary elections

to April 11. If S.B. 1 then received Section 5 pre-

clearance and a favorable Section 2 ruling from the

court prior to February 18, the April 11 election

would be held under that plan. Otherwise, the April

11 election would be held under the court-implemented

plan now in effect. J.S. App. 16a-17a.

The State applied to this Court for a stay pending

appeal of the district court’s order. Richards v. Ter-

razas, No. A-498. This Court denied the application.

1128S. Ct. 924 (1992).

4. In September 1991, the State had filed suit in

the United States District Court for the District of

Columbia, seeking a declaration that its various re-

districting plans did not violate Section 5 of the Vot-

ing Rights Act. On February 5, 1992, the State moved

for partial summary judgment in that case, asking

the court to rule that the implementation of 8.B. 1

would not violate Section 5. Mot. to Aff., App. Cl.

The district court denied that motion. It held that

S.B. 1 had not already been precleared by virtue of

the Justice Department’s preclearance of the Quiroz

plan, and that S.B. 1 would have to be compared with

the benchmark Terrazas court plan in order to deter-

mine whether S.B. 1 had any retrogressive effect. Jd.

at C6-C9. The court concluded that an evidentiary

hearing would be required before any such determina-

tion could be made. Jd. at C8. The court also held

that an evidentiary hearing was required to deter-

mine whether the State enacted 8.B. 1 with a dis-

criminatory purpose. Jd. at C7-C8, C10.

In March 1992, the Attorney General objected to

S.B. 1. Supp. J.S. App. la-3a. The objection letter

explained that the Attorney General was objecting

because the three-judge court had concluded that S.B.

1 violated Section 2, and that ruling had not been

vacated or reversed. J.S. App. 2a; see 28 C.F.R.

51.55(b) (2) (Attorney General shall withhold Sec-

tion 5 preclearance when “a bar to implementation

of the change is necessary to prevent a clear viola-

tion of amended Section 2’).

DISCUSSION

The State of Texas contends that the district court

had no authority under Section 5 to prevent imple-

mentation of S.B. 1 because the Attorney General

had already precleared the identical Quiroz plan. The

State further argues that a presumption of validity

attaches to precleared plans, and that the district

court therefore erred in precluding the State from

implementing S.B. 1. Neither of those contentions

warrants full briefing and argument.

1. a. Section 5 of the Voting Rights Act of 1965

provides that covered jurisdictions, including the

State of Texas,' may not implement “any * * *

standard, practice, or procedure with respect to vot-

ing different from that in force or effect on November

1, 1972,” without first receiving judicial preclearance

from the United States District Court for the District

of Columbia or administrative preclearance from the

Attorney General. 42 U.S.C. 1973c. To receive pre-

clearance, a jurisdiction must show that its proposed

change in election practices “does not have the pur-

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

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

[membership in a language minority group].” Ibid.

In deciding whether a change has a discriminatory

effect, the principal question is whether it is retro-

gressive, i.e., whether it makes minority group mem-

bers worse off than they were before “with respect to

their effective exercise of the electoral franchise.”

Beer v. United States, 425 U.S. 130, 141 (1976) ; see

Lockhart v. United States, 460 U.S. 125, 134 n.10

(1983).

Redistricting plans are changes in “standard[s],

practice[s], or procedure[s] with respect to voting.”

See McDaniel v. Sanchez, 452 U.S. 130, 137, 138

(1981) ; Wise v. Lipscomb, 437 U.S. 535, 542 (1978)

(opinion of White, J.); United Jewish Orgs. of Wil-

liamsburgh, Inc. v. Carey, 430 U.S. 144, 157 (1977)

(opinion of White, J.); Beer v. United States, 425

U.S. at 1383; 28 C.F.R. 51.13(e); see also Presley v.

Etowah County Comm’n, 112 S. Ct. 820, 828 (1992).

Accordingly, a State covered by Section 5 may not

implement a new redistricting plan without first per-

suading either the United States District Court for

1The preclearance requirement was extended to Texas in

1975. See 40 Fed. Reg. 43,746 (1975); Lockhart v. United

States, 460 U.S. 125, 129 (1983).

the District of Columbia or the Attorney General that

the new plan has neither a discriminatory purpose nor

a retrogressive effect.

The State of Texas does not challenge these basic

Section 5 principles. Rather, the State argues that

because the S.B. 1 plan and the Quiroz plan are iden-

tical, and because the State had begun to implement

the Quiroz plan after receiving preclearance, the S.B.

1 plan is not a change with respect to voting and is

not retrogressive from the benchmark Quiroz plan.

J.S. 10-12. Those arguments are insubstantial.

To determine whether there has been a change

with respect to voting for purposes of Section 5, a

court must compare the challenged practice with the

one actually in effect at the time the jurisdiction

became subject to the preclearance requirement. 42

U.S.C. 1973¢; Hathorn vy. Lovorn, 457 U.S. 255, 265

n.16 (1982); United States v. Board of Supervisors,

429 U.S. 642, 647 n.3 (1977); Perkins v. Matthews,

400 U.S. 379, 394-395 (1971); S. Rep. No. 295, 94th

Cong., Ist Sess. 45 (1975) (‘Section 5 freezes the

electoral laws and procedures of [covered] jurisdic-

tions as of November 1, 1964 or 1968 [or 1972].”).

The State does not deny that S.B. 1 is different from

the senatorial districting plan in effect in 1972, and

thus Section 5 preclearance is required by the plain

language of the statute.

The State contends, however, that S.B. 1 is not a

change from preexisting state law because it merely

codified the Quiroz plan. That contention is incorrect.’

?It is also beside the point. Section 5 “in express terms

reaches any standard, practice, or procedure ‘different from

that in force or effect on November 1, 19[72].’” Perkins v.

Matthews, 400 U.S. 379, 394 (1971). The Quiroz plan, of

course, was not “in force or effect” in 1972.

When the State enacted S.B. 1 in January 1992, the

Quiroz plan was not the law of the State of Texas,

since it had been ordered vacated by the Texas Su-

preme Court. J.S. App. 3la. Thus, 8.B. 1 did con-

stitute a change in the districting plan for the State

Senate, and accordingly it was unquestionably sub-

ject to preclearance under Section 5. See 28 C.F.R.

51.12 (“Any change affecting voting, even though it

* * * returns to a prior practice or procedure, * * *

must meet the section 5 preclearance requirement.’’).

Nor did the Attorney General’s preclearance of the

Quiroz plan operate to preclear S.B. 1. Although the

two plans are identical, the preclearance issues are

much different. In preclearing a proposed change in

voting practices and procedures, the Attorney General

must consider whether the change has either the pur-

pose or the effect of abridging the right to vote on

account of race.* City of Pleasant Grove v. United

States, 479 U.S. 462, 469 (1987); City of Rome v.

United States, 446 U.S. 156, 172 (1980). The fact

that the Attorney General determined in November

1991 that a redistricting plan approved by a state

court did not have an impermissible purpose obviously

sheds no light on the question whether a redistricting

plan enacted by the legislature in January 1992 had

such a purpose. Thus, the State was required to sub-

mit S.B. 1 for preclearance—as it did—and was not

permitted to implement its new districting plan until

3 A change may have an impermissible purpose under Sec-

tion 5 ever in the absence of any impermissible effect. City

of Pleasant Grove v. United States, 479 U.S. 462, 471 & n.11

(1987) ; City of Richmond v. United States, 422 U.S. 358,

378-379 (1975).

the Attorney General had expressed no objections or

the 60-day period had expired.‘

Moreover, because the S.B. 1 plan constituted a

change with respect to voting that had not been pre-

cleared, the district court had authority under Section

5 to prevent the State from implementing that change

unless and until preclearance had been obtained. In-

deed, under this Court’s decision in Clark v. Roemer,

111 S. Ct. 2096, 2101 (1991), the district court was

required to follow that course. As this Court explained

in Clark, “[i]f voting changes subject to [Section]

5 have not been precleared, the [Section] 5 plain-

tiffs are entitled to an injunction prohibiting the State

from implementing the changes.” [bid.

b. The State contends in the alternative that the

district court erred in imposing its own reapportion-

ment plan rather than deferring to the legislature’s

reapportionment preferences as reflected in S.B. 1.

See J.S. 13-14 (citing Upham v. Seamon, 456 U.S.

37, 40-41 (1982); White v. Weiser, 412 U.S. 783,

795 (1973)). That contention rests on an incorrect

factual premise. At the time the district court im-

posed its plan, S.B. 1 had not yet been adopted, and

thus it was obviously not entitled to deference as a

legislative expression of reapportionment preferences.

* The Department of Justice’s contemporaneous determina-

tion that S.B. 1 is subject to Section 5 preclearance is “en-

titled to particular deference.” Dougherty County Bd. of Educ.

v. White, 489 U.S. 32, 39 (1978). See City of Pleasant Grove

V. United States, 479 U.S. at 468; NAACP v. Hampton County

Election Comm’n, 470 U.S. 166, 179 (1985) ; United States v.

Board of Comm’rs, 435 U.S. 110, 181 (1978). On January 4,

1992, the Assistant Attorney General for Civil Rights con-

cluded that “[a]ny plan enacted by the Texas Legislature

[would] require[] submission under Section 5 of the Voting

Rights Act * * * even if the Legislature passed a plan identical

to the Quiroz Senate plan.” Mot. to Aff., App. B2.

Moreover, the State’s argument fails to acknowl-

edge-that S.B. 1 was of no legal force or effect even

after its adoption by the legislature, because it had

not received Section 5 preclearance. Clark v. Roemer,

111 S. Ct. 2096, 2101 (1991); NAACP v. Hampton

County Election Comm’n, 470 U.S. 166, 175 n.19

(1985); Wise v. Lipscomb, 437 U.S. 535, 532 (1978)

(opinion of White, J.) ; Morris v. Gressette, 432 U.S.

491, 497 n.8 (1977); Connor v. Waller, 421 U.S. 656

(1975) (per curiam). Under Upham v. Seamon, the

lower federal courts are obligated to defer to a State’s

reapportionment preferences only “in the absence of a

finding that the * * * [State’s] reapportionment plan

offend[s] either the Constitution or the Voting Rights

Act.” 456 U.S. at 43. Since S.B. 1 was presumptively

invalid and unenforceable under Section 5 of the

Voting Rights Act unless and until precleared, it

was not entitled to deference.® Accordingly, the dis-

trict court was free to adopt its own plan. See Wise

v. Lipscomb, 437 U.S. at 542 (opinion of White, J.)

(“Pending [Section 5] submission and clearance, * * *

federal courts will at times necessarily be drawn

further into the reapportionment process and required

to devise and implement their own plans.”’).

The State’s broader interpretation of the duty to

defer to state redistricting preferences would have

5 For the same reason, appellants are incorrect in asserting

(J.S. 17) that the district court should have deferred to the

legislature’s enactment of H.B. 2, which sought to change the

filing period for, and date of, the primary election. Changes

in candidate filing periods and election dates are subject to

Section 5 preclearance. NAACP v. Hampton County Election

Comm’n, 470 U.S. 166, 176-179 (1985); Garcia v. Guerra,

744 F.2d 1159, 1164-1165 (5th Cir. 1984), cert. denied, 471

U.S. 1065 (1985).

the effect of sanctioning an end-run around the re-

quirements of Section 5. The district court obviously

could not have applied S.B. 1 without first satisfying

itself that S.B. 1 was valid under federal law. But

this Court has made clear that federal district courts,

other than the United States District Court for the

District of Columbia, lack jurisdiction to consider

whether unprecleared state election laws comply with

the substantive requirements of Section 5. As the

Court said in NAACP v. Hampton County Election

Comm’n, 470 U.S. 166, 181 (1985), the district court

was not in a position “to determine whether the

changes at issue in this case in fact resulted in im-

pairment of the right to vote, or whether they were

intended to have that effect. That task is reserved

by statute to the Attorney General or to the District

Court for the District of Columbia.” See also Hathorn

v. Lovorn, 457 U.S. 255, 267 (1982); McDaniel v.

Sanchez, 452 U.S. 130, 150 n.31 (1981); Wise v.

Lipscomb, 437 U.S. at 542 (opinion of White, J.);

United States v. Board of Supervisors, 429 U.S. 642,

646 (1977) (per curiam); Perkins v. Matthews, 400

U.S. 379, 385 (1971). Accordingly, it would have

been error for the district court to decide whether

S.B. 1 complied with Section 5, and thus the court

could not defer to the legislative preferences expressed

in that presumptively invalid state statute.

Nor did the district court err in declining to delay

the implementation of its redistricting plan pending

the State’s attempt to obtain administrative preclear-

ance of S.B. 1. The majority of the three-judge court

found that further delay would prevent primary elec-

tions from being held as scheduled and require their

postponement into the summer, with a potentially dis-

ruptive effect on voter turnout and on the voting

rights of Hispanics. J.S. App. 10a-12a. In light of

those findings, which appellants do not challenge as

clearly erroneous, and because all parties conceded

that holding elections under the plan that predated

the 1990 census would violate one person, one vote

requirements, the district court did not abuse its dis-

cretion in imposing its own interim plan. See Wise v.

Lipscomb, 487 U.S. at 540 (opinion of White, J.);

Burns v. Richardson, 384 U.S. 73, 85 (1966).

2. The State also contends (J.S. 14-18) that ad-

ministrative preclearance under Section 5 establishes

the prima facie validity of a redistricting plan so as

to preclude interim injunctive relief under Section 2

except in extreme and unique circumstances. As ex-

plained above, that question is not properly presented

in this case, because S.B. 1 was never given adminis-

trative preclearance. In any event, the State’s conten-

tion is devoid of merit.

By the express terms of Section 5, neither admin-

istrative nor judicial preclearance of a change in vot-

ing practices or procedures “shall bar a subsequent

action to enjoin enforcement of” that change. 42

U.S.C. 1973c; see also 28 C.F.R. 51.49 (“The pre-

clearance by the Attorney General of a voting change

does not constitute the certification that the voting

change satisfies any other requirement of the law be-

yond that of section 5.”). Every court that has ad-

dressed this issue has rejected the notion that the At-

torney General’s failure to object provides a defense

to a subsequent action challenging the validity of the

precleared change.* Instead, it is undisputed that

® See, e.g., Morris v. Gressette, 482 U.S. 491, 506-507

(1977) (‘‘Where the discriminatory character of an enact-

ment is not detected upon [preclearance] review by the At-

torney General, it can be challenged in traditional constitu-

eesiasemenil

“the * * * Attorney General’s preclearance determina-

tion has no probative value,” and that “[p]rivate

plaintiffs are free to mount a de novo attack upon

a reapportionment plan notwithstanding preclear-

ance.” Major v. Treen, 574 F. Supp. 325, 327 n.1

(E.D. La. 1983).’

In any event, the State’s contention that adminis-

trative preclearance should insulate election-law

changes from interim injunctive relief is wholly be-

side the point. S.B. 1 did not receive administrative

preclearance, and thus the district court was obli-

gated to prevent its implementation even under the

State’s view of the law. Clark v. Roemer, 111 S. Ct.

2096, 2101 (1991). As this Court has explained,

“t]he application of [Section 5] is not dependent on

a showing that the [covered jurisdiction’s] proposed

plan is defective in any way.” McDaniel v. Sanchez,

tional litigation.’”’) ; Allen v. State Bd. of Elections, 393 U.S.

544, 549-550 (1969) (“Once the State has successfully com-

plied with the [Section] 5 approval requirements, private

parties may enjoin the enforcement of the new enactment

* * * in traditional suits attacking its constitutionality.”) ;

United States v. East Baton Rouge Parish School Bd., 594

F.2d 56, 59-60 n.9 (5th Cir. 1979); Gunn v. Chickasaw

County, 705 F. Supp. 315, 321 (N.D. Miss. 1989) (preclear-

ance under Section 5 does not preclude a Section 2 challenge) ;

Mississippi State Chapter, Operation PUSH v. Allain,) 674

F. Supp. 1245, 1261, 1262 (N.D. Miss. 1987) (same) ; Martin

v. Allain, 658 F. Supp. 1183, 1200 (S.D. Miss. 1987) (same) ;

Major Vv. Treen, 574 F. Supp. 325, 327 n.1 (E.D. La. 1983)

(same).

7 Any consideration of the preclusive effect of Section 5

preclearance must take into account the fact that the Depart-

ment of Justice reviews thousands of Section 5 submissions

annualiy. In 1991, for example, the Department received

nearly 4,600 submissions requesting preclearance of over

19,006 election-law changes.

452 U.S. 130, 151 (1981). Thus, the district court

acted properly in declining to give effect to S.B. 1 be-

cause it had not received preclearance, regardless of

whether S.B. 1 complies with Section 2 of the Voting

Rights Act.®

8 Because the district court was clearly correct in conclud-

ing that S.B. 1 was subject to the preclearance requirements

of Section 5, we express no opinion concerning the court’s

contingent finding that S.B. 1 would be unenforceable under

Section 2 of the Voting Rights Act, even if it were to become

law. See J.S. App. 12a-13a. Moreover, that issue is not, in

our view, “fairly included” within the questions presented by

appeliants in their jurisdictional statement. Sup. Ct. R.

14.1(a), 18.3. The effect, if any, of the district court’s Section

2 finding on Section 5 preclearance is among the issues pend-

ing before the three-judge court of the United States District

Court for the District of Columbia, and should be addressed

there in the first instance.

CONCLUSION

The judgment of the district court should be sum-

marily affirmed.

Respectfully submitted.