Blanding v. Bose

• Decision Date: 11 January 1982
• Docket Number: No. 81-325,81-325
• Parties: Larry BLANDING, et al., Appellants, v. E. M. DuBOSE, et al
• Court: U.S. Supreme Court

454 U.S. 393

102 S.Ct. 715

70 L.Ed.2d 576

Larry BLANDING, et al., Appellants,

v E. M. DuBOSE, et al.

No. 81-325.

Jan. 11, 1982.

PER CURIAM.

Appellants, citizens of Sumter County, S.C., have taken an appeal from a summary judgment entered against them on February 17, 1981, by the United States District Court for the District of South Carolina. The three-judge District Court concluded that Sumter County in June 1979 had made a preclearance submission under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c, when it wrote the United States Attorney General informing him that a referendum had approved at-large County Council elections. Because the Attorney General failed to object within 60 days to the claimed preclearance submission, the District Court permitted Sumter County to proceed with at-large elections for its County Council. We hold that the county's June 1979 letter was a reconsideration request, not a preclearance submission, and reverse.

I

Section 5 of the Voting Rights Act ¹ provides that when a covered political subdivision enacts a voting procedure different from that in effect on November 1, 1964, the political subdivision must either seek a declaratory judgment in the United States District Court for the District of Columbia approving the procedure or submit it to the United States Attorney General for preclearance. If the procedure is submitted to the Attorney General and he does not interpose an objection to the preclearance submission within 60 days, the procedure may be enforced.

On November 1, 1964, Sumter County was governed by its South Carolina General Assembly delegation acting through a County Board of Supervisors. In 1967, the General Assembly enacted a local bill that established a new form of government for Sumter County, namely, a seven-member County Commission elected at large. See 1967 S.C.Acts, No. 371. Although this change required preclearance under § 5 of the Voting Rights Act, no steps were taken to obtain preclearance and at-large elections were held in 1968, 1970, 1972, and 1974.

In 1975, the General Assembly passed, and the Governor approved, the State's Home Rule Act, 1975 S.C.Acts, No. 283, codified as S.C.Code § 4-9-10 et seq. (1976 and Supp.1980). The Act permitted a South Carolina county to hold a referendum to select a form of local government and to choose between at-large and single-member district elections. § 4-9-10. The Act specifically provided that if Sumter County did not hold a referendum, it would be assigned, effective July 1, 1976, the council-administrator form of government with council members elected at-large. § 4-9-10(b).

The Home Rule Act was submitted to the Attorney General of the United States for preclearance. The Attorney General ² did not interpose an objection to the Act, as such, but he indicated that the outcomes of Home Rule Act referenda or assignments of forms of government under the Act would be subject to preclearance.

Sumter County chose not to hold a referendum. Accordingly, it was assigned the council-administrator form of government with at-large elections. The County Council passed a resolution and ordinance adopting that form of government and method of election.

On August 13, 1976, the County Administrator submitted the Sumter County Home Rule Ordinance and the 1967 Act to the Attorney General for preclearance. On December 3, after having obtained necessary additional information, see 28 CFR § 51.18 (1980), the Attorney General made a timely objection to the at-large method of election of the Council. He interposed no objection to the council-administrator form of government.

The county requested the Attorney General to reconsider his objection to at-large elections, see § 51.21(b), and the county and the Attorney General continued to correspond during 1977 and 1978. In early 1978, the county asked whether the Attorney General would withdraw his objection if a county referendum endorsed the at-large method of election. On April 28 of that year, the Attorney General declined to withdraw the objection and advised the county that a favorable referendum result, by itself, would not cause him to change his mind.

A Council election was scheduled for June 13, 1978. After the Attorney General refused to withdraw his objection, private parties and the United States brought separate federal suits to prevent elections under the at-large system. The two suits were consolidated. A single judge issued a temporary restraining order, and on June 21, 1978, a three-judge District Court permanently enjoined County Council elections until the requirements of the Voting Rights Act were fulfilled.

In November 1978, Sumter County went ahead with its referendum in which voters were asked whether they preferred that Council members be elected at-large or from single-member districts. The majority endorsed the at-large method. Because Council members already were being elected under the at-large system, the county did not enact any resolution or ordinance to adopt the results of the referendum.

Then came the critical exchange of correspondence. On June 4, 1979, the Attorney General received a letter, dated June 1, from the county advising him of the referendum results. The letter expressed doubt as to whether it was a new preclearance submission of the at-large method, see 28 CFR § 51.2(c) (1980), or a request that the Attorney General reconsider his earlier objection to at-large elections, see § 51.21.³ Subsequently, on July 23, a conference was held in Washington, D. C., between county officials and representatives of the Department of Justice. See § 51.23. Fifteen days later, see § 51.24,⁴ on August 7, the Attorney General referring to the county's letter as a "request for reconsideration," refused to withdraw the objection to at-large elections, but advised the county that the Department of Justice had not yet completed its review. On September 27, the Attorney General for a second time refused to withdraw his objection. See § 51.25.⁵

Thereafter, the defendant-appellees moved the District Court for summary judgment. They contended that the June letter was a preclearance submission, not a request for reconsideration. Section 5, the appellees noted, requires the Attorney General to object within 60 days of a preclearance submission. They asserted that, since the Attorney General did not interpose an objection by August 3, the county was free under § 5 to proceed with at-large elections.

A three-judge District Court was again convened. It agreed with appellees. 509 F.Supp. 1334 (1981). Referring to § 5 of the Voting Rights Act, the court observed that the 1978 referendum approved a method of electing county officials different from that in effect on November 1, 1964. The letter received June 4, 1979, according to the District Court, was the required preclearance submission. Rejecting the Attorney General's argument that the letter was a request for reconsideration of his timely 1976 objection to at-large elections, the District Court declared: "This Court will not be a party to the [Attorney General's] effort to excuse his failure to act by mislabeling a submission for preclearance as a 'request for reconsideration.' " ⁶ 509 F.Supp., at 1336.

II

We conclude that the District Court, not the Attorney General, mislabeled the June 1979 letter. The court ruled that that letter was a preclearance submission because the referendum approved a method of selecting officials different from that in effect on November 1, 1964. But the change to at-large County Council elections already had been submitted to the Attorney General for preclearance. The 1978 referendum merely approved the pre-existing at-large method—the very method to which the Attorney General earlier had made a timely objection. Because the referendum did no more than endorse a method of election that previously had been submitted to the Attorney General and that was the subject of an outstanding objection, the June letter did not amount to a new preclearance submission.

Indeed, the June letter fell squarely within the definition of a reconsideration request. The applicable regulation provides that the Attorney General will reconsider his objection upon a request by a submitting authority "to present further substantiating or explanatory information which was not previously available to the submitting authority." 28 CFR § 51.21(b) (1980). The results of the referendum constituted further explanatory information concerning at-large elections which the county asked the Attorney General to consider. The June letter thus was nothing more than a request that the Attorney General reconsider his earlier objection to at-large County Council elections in light of the referendum results.

The District Court put forward several reasons why, in its view, the June letter was not a reconsideration request. None of them persuades us. First, the District Court pointed out that the county already had made one reconsideration request. But the regulations do not limit a political subdivision to a single request for reconsideration. Second, the court relied upon 28 CFR § 51.21(b) (1980), which requires that a reconsideration request be made within 10 days of the Attorney General's objection. The Attorney General, however, follows the laudable practice of accepting reconsideration requests even though they are untimely, thus considering possibly important information that was not available within 10 days of the original objection. See also § 51.25 (permitting the Attorney General to reconsider his objection on his own motion). In any event, the mere fact that a reconsideration request is untimely does not convert it into a preclearance submission. Third, the court also cited § 51.21(b) for the proposition that a reconsideration request must be based on information not previously available. That requirement poses no obstacle to considering the June letter a ...