Brooks v. State Bd. of Elections

• Decision Date: 01 December 1989
• Docket Number: Civ. A. File No. CV288-146.
• Parties: Tyrone BROOKS, et al., Plaintiffs, v. STATE BOARD OF ELECTIONS, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

775 F. Supp. 1470

Tyrone BROOKS, et al., Plaintiffs, v. STATE BOARD OF ELECTIONS, et al., Defendants.

Civ. A. File No. CV288-146.

United States District Court, S.D. Georgia, Brunswick Division.

December 1, 1989.

COPYRIGHT MATERIAL OMITTED

Laughlin McDonald, Kathleen L. Wilde, Neil Bradley, American Civ. Liberties Union Foundation, Inc., Atlanta, Ga., and J. Gerald Hebert, Atty. Voting Section Civ. Rights Div., Dept. of Justice, Washington, D.C., for plaintiffs.

David F. Walbert, Atlanta, Ga., for defendants.

Edmund Booth, Asst. U.S. Atty., Augusta, Ga.

Before KRAVITCH, Circuit Judge, and EDENFIELD and BOWEN, District Judges.

MEMORANDUM OPINION AND ORDER

On July 13, 1988 plaintiffs commenced this action alleging violations of sections 2 and 5 of the Voting Rights Act of 1965 (currently codified as amended at 42 U.S.C. §§ 1973 and 1973c, respectively), as well as provisions of the first, thirteenth, fourteenth, and fifteenth amendments to the United States Constitution. The plaintiffs are black voters of Georgia, some of whom are elected officials of various Georgia counties, suing for themselves and on behalf of those similarly situated.¹

Defendants do not contest class certification or standing.² The defendants are the Georgia State Board of Elections and Max Cleland, Secretary of State and Chairman of the Georgia State Board of Elections.³ A three-judge district court was convened to consider the alleged violations of section 5 of the Voting Rights Act. See 42 U.S.C. § 1973c; 28 U.S.C. § 2284. Currently before the court is plaintiffs' motion for summary judgment and injunctive relief.

I.

Since August 7, 1965 Georgia has been a "covered jurisdiction" within the meaning of section 5 of the Voting Rights Act. 28 C.F.R. § 51 App. (1988); 30 Fed.Reg. 9897 (1965). As a covered jurisdiction, Georgia must administratively preclear "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964" with the Attorney General of the United States or institute a declaratory judgment action in the District Court for the District of Columbia. See 42 U.S.C. § 1973c.⁴

From 1964 to 1988, Georgia enacted 80 statutes regarding the election of superior court judges. All told, seventy-seven judgeships and five new circuits were created. The State submitted these to the Attorney General for preclearance on June 27 and 28, 1988. By letter of August 26, 1988 the Attorney General notified the State that he did not object to thirty-one of the proposed changes. Thus, twenty-nine of the seventy-seven new judgeships and three of the five new circuits were precleared. See Appendix A. In the same letter the Attorney General requested more information regarding the remaining changes.⁵ The State submitted some further information, but chose not to comply fully with the Attorney General's request.

In order to obtain preclearance under section 5 of the Voting Rights Act, the State, as the submitting authority, has the burden of showing that a submitted change has neither a discriminatory purpose nor effect. See e.g., Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973). Because the State deliberately chose not to comply with the Attorney General's request for further information regarding the changes, the State failed to meet its burden under section 5. Accordingly, on June 16, 1989 the Attorney General notified the State that he objected to the addition of the forty-eight judgeships and the redistricting of two circuits with respect to which he had earlier requested information. See Appendix B.

The statutes to which the Attorney General has objected fall into three broad categories. First, two new judicial circuits are created. Second, some circuits that previously had only one superior court judgeship are given one or more additional judgeships. Third, certain circuits that had previously had more than one superior court judgeship are given one or more additional judgeships.

In 1989 the State General Assembly created six more superior court judgeships. All but one of these was to commence on July 1, 1989. See Appendix C. The governor has agreed to refrain from nominating anyone to fill these posts pending this court's decision. The remaining judgeship is authorized to commence on January 1, 1990. The State has not yet submitted these changes to the Attorney General for preclearance, nor has the State commenced a declaratory judgement action in the District Court for the District of Columbia as provided by section 5 of the Voting Rights Act.

One of the judgeships created in 1989 has, however, been precleared: the officials of Bartow County submitted the addition of a judgeship to the Cherokee Circuit to the Attorney General for preclearance, and the Attorney General has notified Bartow County that he does not object to the change.

Among other requirements for election, a candidate for a superior court judgeship must designate the specific opening for which he is seeking election if there is more than one judgeship up for election. In order to be elected, a candidate must receive an absolute majority of votes cast. Judges are elected on a circuit-wide basis. As we discuss below, for the purposes of our opinion we will treat these three requirements as having been precleared within the context of the then-existing electoral scheme. See infra Part III.A.2.

II.

The role of the three-judge court entertaining an action under section 5 of the Voting Rights Act is limited. The three-judge court determines "(1) whether a change is covered by § 5, (ii) if the change is covered, whether § 5's approval requirements were satisfied, and (iii) if the requirements were not satisfied, what remedy is appropriate." City of Lockhart v. United States, 460 U.S. 125, 129 n. 3, 103 S.Ct. 998, 1001 n. 3, 74 L.Ed.2d 863 (1983). The court does not consider the merits of a plaintiff's claim that the proposed changes are discriminatory. 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). The court may consider any equitable arguments put forth by the defendants or the plaintiffs only in the limited context of fashioning an appropriate remedy. See infra Parts IV and V.

III.

As noted above, the first step for a three-judge court is to determine "whether a change is covered by § 5." In this case, that question has two facets. First, whether, as a general matter, section 5 encompasses changes regarding the election of judges. If section 5 applies to the election of judges, then the next step is to determine whether the specific "changes" at issue in this case are "covered changes," i.e., changes that trigger the application of section 5.⁶

A.

"For possible appeal purposes," the State has "expressly reserved the contention that the election of judges are never covered by Section 5." Because defendants cannot cede jurisdiction to a federal court, and because three-judge district courts are exceptional, this court should consider its jurisdiction as a threshold issue. Cf. Harper v. Levi, 520 F.2d 53 (D.C.Cir.1975) (statute calling for three-judge district court should be strictly construed).

Courts that have addressed this question have concluded that section 5 applies to the election of judges. See Haith v. Martin, 618 F.Supp. 410 (E.D.N.C.1985) (three-judge court), aff'd mem., 477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986); Kirksey v. Allain, 635 F.Supp. 347 (S.D.Miss.1986) (same).⁷

The Supreme Court's summary affirmance of Haith v. Martin may well have decided this issue. In Haith, the state did not challenge that the changes were changes of a "standard, practice, or procedure with respect to voting," but the state did argue that section 5 did not apply to the election of judges. 618 F.Supp. at 414. The state also argued that equitable principles excused the state's failure to preclear because earlier the state had submitted the changes for preclearance and the Justice Department had informed the state that the changes at issue were not within the scope of section 5. Id.

The three-judge court concluded that section 5 encompassed the election of judges, and found that the proposed changes to the election of superior court judges had not been precleared as section 5 required. Id. at 412-13. The court also concluded that section 5 did not empower the court "to provide equitable relief to defendants, no matter how just their cause." Id. at 414.

The state appealed to the Supreme Court. The state's jurisdictional statement presented the following two questions to the Court:

I. Whether this Court's decision in Allen v. State Board Elections, 393 U.S. 544 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), should be extended to cover a state's judiciary?

II. Whether past changes in North Carolina's judiciary must be precleared pursuant to § 5 of the Voting Rights Act, in light of the special circumstances of this case?

The Supreme Court summarily affirmed the three-judge court. 477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986).

The State cites Fusari v. Steinberg, 419 U.S. 379, 388-89, n. 15, 95 S.Ct. 533, 539-40, n. 15, 42 L.Ed.2d 521 (1975) for the proposition that a summary affirmance is of limited precedential significance. All Fusari teaches, however, is that lower courts may not construe a summary affirmance as having reached any issues other than those absolutely necessary to have resolved the case. As plaintiffs observe, summary affirmances "without doubt reject the specific challenge presented in the statement of jurisdiction" and "prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977).

For the Haith Court to have affirmed, it necessarily must have...