535 F.2d 1259 (D.C. Cir. 1976), 75-1903, Briscoe v. Levi

Docket Nº:75-1903.
Citation:535 F.2d 1259
Party Name:Dolph BRISCOE, Governor of the State of Texas, et al., Appellants, v. Edward H. LEVI, United States Attorney General, et al.
Case Date:April 19, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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535 F.2d 1259 (D.C. Cir. 1976)

Dolph BRISCOE, Governor of the State of Texas, et al., Appellants,


Edward H. LEVI, United States Attorney General, et al.

No. 75-1903.

United States Court of Appeals, District of Columbia Circuit

April 19, 1976

Argued Dec. 12, 1975.

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Cynthia L. Attwood, Atty., Dept. of Justice, with whom Earl J. Silbert, U. S. Atty., and Brian K. Landsberg, Atty., Dept. of Justice, Washington, D. C., were on the brief for appellees. John A. Terry, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellees.

David M. Kendall, First Asst. Atty. Gen. of the State of Texas, Dallas, Tex., with whom John W. Odam, Executive Asst. Atty. Gen. of the State of Texas, Austin, Tex., was on the brief for appellants. Charles S. Rhyne, William S. Rhyne, Donald A. Carr and Richard J. Bacigalupo, Washington, D. C., entered appearances for appellants.

Before Mr. Justice CLARK, [*] of the Supreme Court of the United States, and ROBINSON and MacKINNON, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

The State of Texas in this litigation contends that the Attorney General and the Director of the Census incorrectly determined that Texas became subject to the corrective provisions of the Voting Rights Act of 1965, 1 by virtue of the 1975 amendments 2 thereto, because more than five percent of the voting age citizens of Texas are

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members of a single (foreign) language minority and because Texas printed at least some of its election materials only in English as of November 1, 1972. The judgment of the district court agreed generally with the position of the federal government, and we affirm that decision.

The Voting Rights Act of 1965 provides, inter alia, that "no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device" with respect to which certain determinations specified in section 4(b) have been made by the Attorney General and the Director of the Census. 3 In its 1975 Amendments to the Act, Congress expanded the original definition of "test or device" to include elections conducted only in English where a substantial fraction of the population of a particular jurisdiction speaks a foreign language. 4

The sanctions of the Act are triggered by the determinations referred to above. Specifically, after the adoption of the 1975 Amendments, section 4(b) of the amended Act requires the Director of the Census to make two determinations on or after August 6, 1975. First, he must determine whether "more than five per centum of the citizens of voting age residing in (a) State or political subdivision are members of a single language minority." 5 Second, the Director must determine with respect to each jurisdiction whether

less than 50 per centum of the citizens of voting age were registered on November 1, 1972, or (whether) less than 50 per centum of such persons voted in the Presidential election of November 1972. 6

The Attorney General must then separately determine whether the particular state or political subdivision in question maintained a "test or device" on November 1, 1972. 7 In the event that both officials make affirmative determinations in the areas assigned to them by the statutory provisions mentioned above (also referred to as the "trigger" provisions), the particular state or subdivision becomes subject to corrective provisions of the amended Act 8 until such time

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as that jurisdiction, in a suit before a three judge court in the United States District Court for the District of Columbia, proves that it has not used a "test or device" with a discriminatory effect or purpose in ten years preceding the filing of the suit. 9

As early as July 14, 1975 (three weeks before the effective date of the 1975 amendments), appellant White, who is Secretary of State for Texas and the state's chief election official, requested the Director of the Census and the Attorney General to grant the state a formal hearing prior to making the determinations regarding Texas required by the amended Act. It was suggested that White could present evidence which was allegedly relevant to the question of whether Texas is covered by the new law. Although the statute itself makes no provision for a hearing, the Bureau of the Census did agree to provide Texas with an opportunity to present any data and supporting documentation relevant to the census determinations, and agreed to receive and consider such data fully and fairly. 10 A meeting was scheduled for September 5, 1975. 11

On September 4, the day before the meeting, the Bureau of the Census issued a press release 12 which stated that the Director had determined that the State of Texas met two of the "trigger" requirements: 1) that greater than five percent of the citizens of voting age were persons of Spanish heritage and 2) that there was less than a 50 percent voter participation in Texas in the presidential election of November, 1972. The meeting was held the next day as scheduled, and although the state officials were informed that the Bureau would evaluate any evidence presented by Texas and would reconsider their determination as to the trigger requirements of the Act if that evidence showed they had erred, 13 no facts were presented which the Bureau considered required a change in this initial determination. 14

On September 8, 1975, appellants filed suit in district court for a declaratory judgment on how and under what circumstances the determinations called for by section 4(b) of the amended Voting Rights Act should be made. 15 They also sought an injunction against the defendants restraining them from publishing any determination concerning the state of Texas in the Federal Register pursuant to the amended Act. On September 12, the court granted the federal parties' motion for summary judgment, 16 denied the Texas parties' motion for preliminary

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relief, and dismissed the case. 17 This appeal followed. 18


We first consider the jurisdiction of the district court to review the determinations of the Director of the Census, because our jurisdiction and the extent of our reviewing authority necessarily depend upon the original jurisdiction which may or may not exist in the District Court. While the decision of the trial judge on this point has not been challenged on appeal, 19 the scope of the lower court's subject matter jurisdiction is important to a proper resolution of this case.

Section 4(b) of the Voting Rights Act of 1965 20 provides:

A determination or certification of the Attorney General or of the Director of the Census under this section . . . shall not be reviewable in any court and shall be effective upon publication in the Federal Register.

That provision was held constitutional in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) which stated:

The Court has already permitted Congress to withdraw judicial review of administrative determinations in numerous cases involving the statutory rights of private parties. For example, see United States v. California Eastern Line, 348 U.S. 351, 75 S.Ct. 419, 99 L.Ed. 383; Switchmen's Union v. National Mediation Bd., 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61. In this instance, the findings not subject to review consist of objective statistical determinations by the Census Bureau and a routine analysis of state statutes by the Justice Department. These functions are unlikely to arouse any plausible dispute, as South Carolina apparently concedes. In the event that the formula is improperly applied, the area affected can always go into court and obtain termination of coverage under § 4(b), provided of course that it has not been guilty of voting discrimination in recent years. This procedure serves as a partial substitute for direct judicial review.

Id. 383 U.S. at 333, 86 S.Ct. at 821, 15 L.Ed.2d at 789. (emphasis added). The Court construed this provision in a manner consistent with the interpretation given to the Act as a whole: an "inventive" solution to "nearly a century of systematic resistance to the Fifteenth Amendment" which would "shift the advantage of time and inertia from the perpetrators of the evil to its victims." Id., 383 U.S. at 328, 86 S.Ct. at 818, 15 L.Ed.2d at 786. Thus, "the measure prescribes remedies for voting discrimination which go into effect without any need for prior adjudication." Id. at 327-28, 86 S.Ct. at 818, 15 L.Ed.2d at 786.

The trial court in the instant case held that this provision did not divest it of "narrow" jurisdiction to determine whether the Director of the Census followed Congressional intent and direction. 21 The district

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judge stated the following standard for review:

This is not a review of the computations made by the Director of Census following publication but is an examination prior to publication inquiring into whether or not the Bureau of Census or the Director of Census has properly applied the Act.

The test that the Court feels must be applied in this circumstance under the narrow jurisdiction which I have indicated is here present is to determine whether or not the interpretation given by the Director of Census to the statute is rational and whether it is or is not in the large consistent with the declared congressional purpose and the legislative history.

(App. 222-23).

(A) court cannot review except as I have here done to determine that the Director of Census has not acted in an arbitrary or illegal manner but rather that he has proceeded in a rational manner, consistent with the apparent meaning of the statute and that his interpretations of it at this stage must be sustained.

(App. 225).

We agree that...

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