Berry v. Doles

• Decision Date: 26 June 1978
• Docket Number: No. 76-1690,76-1690
• Citation: 57 L.Ed.2d 693,438 U.S. 190,98 S.Ct. 2692
• Parties: H. W. BERRY et al. v. J. D. DOLES, etc., et al
• Court: U.S. Supreme Court

438 U.S. 190

98 S.Ct. 2692

57 L.Ed.2d 693

H. W. BERRY et al.

v J. D. DOLES, etc., et al.

No. 76-1690.

June 26, 1978.

PER CURIAM.

This appeal presents a challenge to the scope of the remedy allowed by a three-judge District Court for the Middle District of Georgia for failure of appellees to comply with the approval provisions of § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c (1970 ed., Supp. V).

In 1968, the State of Georgia enacted a statute intended to stagger the terms of the three members of the Peach County Board of Commissioners of Roads and Revenues. The then-existing statute, adopted in 1964, provided that all three posts were to be filled at four-year intervals. By operation of the 1968 amendment, the single at-large member was to be elected to a two-year term in 1968 and to a four-year term at subsequent general elections. Appellees concede, and the three-judge court f und, that the 1968 statute constituted a change in voting procedures subject to the provisions of § 5 and that the change had been implemented without first having been submitted for approval either to the United States District Court for the District of Columbia or to the Attorney General as required by § 5.

Four days prior to the August 10, 1976, primary election for the two seats on the Board not including the at-large post, appellants filed this action to enforce the requirements of § 5. Appellants' requests for declaratory and injunctive relief were not acted upon until after the scheduled 1976 primary and general elections.

On February 28, 1977, the three-judge court, without a hearing, enjoined further enforcement of the 1968 statute until such time as appellees effected compliance with § 5. However, the District Court refused appellants' request to set aside the 1976 elections, noting "the rather technical changes made in the county's election law by the 1968 amendment and, more important, the apparent lack of any discriminatory purpose or effect surrounding the use of the law in the 1976 elections." In expressly limiting its order to prospective relief, the District Court also relied on our decision in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).

On April 26, 1977, the three-judge court denied appellants' motion for reconsideration.

In this Court, appellants take the position that the relief awarded in this case is wholly inadequate in failing to remedy the existing § 5 violation. Appellants assert that by refusing either to set aside the 1976 election or to order that all three Board members be elected in 1978, the District Court, at least until the 1980 election, leaves undisturbed the effects of the § 5 violation, thereby acknowledging that, at least for a time, local officials may successfully disregard § 5 requirements.

Appellees urge us to affirm the District Court judgment on grounds that the 1976 election involved the two Board posts which were not mentioned in the 1968 statute. Accordingly, appellees argue, election to these posts is not subject to § 5. However, even assuming that the District Court had the power to effect one of the alternative remedies suggested by appellants, appellees believe that the court below was correct in refusing to do so.

At our request, the United States, as amicus curiae, has filed a brief in this case. The Government takes the view, espoused by appellants, that the 1976 election was affected by the voting change prescribed in the 1968 statute and that the District Court's failure to require prompt compliance with § 5 permits the violation to continue. It is the submission of the United States that the question whether the staggering of Board terms provided for by state statute in this case necessarily has a racially discriminatory effect should properly be promptly submitted to either the District Court for the District of Columbia or to the Attorney General in conformity with the approval procedures set forth in § 5.

In Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), decided after Allen, supra, we had occasion to address the remedy issue which now confronts us. We indicated in that case that "[i]n certain circumstances . . . it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming." 400 U.S., at 396-397, 91 S.Ct., at 441. The circumstances present here make such a course appropriate.

In this case, appellees' undisputed obligation to submit the 1968 voting law change to a forum designated by Congress has not been discharged. We conclude that the requirement of federal scrutiny imposed by § 5 should be satisfied by appellees without further delay. Accordingly, we adopt the suggestion of the United States that the District Court shoul enter an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5. If approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for simultaneous election of all members of the Board at the 1978 general election.

The judgment of the District Court is affirmed insofar as it holds that appellees have violated the approval provisions of § 5 of the Voting Rights Act; the judgment is reversed insofar as it denies affirmative relief, and the case is remanded to the District Court with instructions to issue an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5, and for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring.

I join the Court's opinion. The Court is surely correct that the District Court committed reversible error by not, at the very least, ordering the Peach County officials to seek preclearance of the voting change enforced in the 1976 election and affording appellants the opportunity, if prior approval is not granted, to seek an order that would cut short the terms of the two Commissioners elected in 1976 and require a new election under the pre-1968 law. The District Court manifestly erred in refusing to order such relief on the basis of its conclusion that the change was "rather technical" with no "apparent discriminatory purpose or effect." Nothing could be clearer than that a district court other, of course, than the District Court for the District of Columbia—has no jurisdiction to assess the purpose or effect of any voting change. See, e. g., United States v. Board of Supervisors, 429 U.S. 642, 97 S.Ct. 833, 51 L.Ed.2d 106 (1977); Perkins v. Matthews, 400 U.S. 379, 385, 91 S.Ct. 431, 435, 27 L.Ed.2d 476 (1971).

Although the Court does not reach this issue, I think it clear that, if the Peach County officials do not hereafter obtain federal preclearance for the 1968 change, the District Court must order a new election for all three posts at the earliest feasible time—that here being the regularly scheduled 1978 election. For if a designated federal entity cannot hereafter approve the 1968 voting change as racially neutral, it follows necessarily that there is a substantial probability that the 1976 election itself perpetrated racial discrimination in voting. To permit the results of the 1976 election to stand in the face of such a determination would be to do precisely what § 5 was designed to forbid: allow the burdens of litigation and delay to operate in favor of the perpetrators and against the victims of possibly racially discriminatory practices. See South Carolina v. Katzenbach, 383 U.S. 301, 335, 86 S.Ct. 803, 822, 15 L.Ed.2d 769 (1966).

However, while I, therefore, agree that the District Court committed reversible error, I am also of the view that, in the circumstances of this case, a strong argument can be made that, whether or not preclearance can be obtained, the only sufficient remedy is to set aside the 1976 election and order a new election under the pre-1968 law. Here, the Peach County officials could not have reasonably believed at the time of the 1976 election that the 1968 voting change could continue to be validly enforced without obtaining prior federal approval; thus the situation is quite different from that present in cases like Perkins v. Matthews, supra, where the scope of the § 5 duty had been unsettled at the time of the election that was under attack.

If, in cases like the present one, the remedy of ordering a new election is not to be required in all cases, the political units covered by § 5 may have a positive incentive flagrantly to disregard their clear obligations and not to seek preclearance of proposed voting changes. For covered jurisdictions will then know that a § 5 violation, if a suit is brough , can only result in their being denied the right to continue to enforce those voting changes that could not have received federal approval in the first place. As to all other voting changes, the sole effect of a suit for noncompliance with the approval provisions will be the limited sanction of requiring the political unit to obtain the federal approval which it should have received before any change was instituted.

The legislative background of § 5 strongly suggests to me that Congress expressly intended to preclude such a state of affairs. Section 5, of course, was intended to prevent those States which had a history of racial discrimination in voting from adhering to their long-established practices of continually contriving new laws to deprive blacks of any newly won voting rights. Congress sought to place the burden of inertia and litigation delay on the perpetrators of the discrimination by requiring affected States voluntarily to submit any new law affecting voting for federal approval before it became effective. The remedial theory the Court embraces...