Harper v. Levi, s. 73-1766

• Citation: 171 U.S.App.D.C. 321,520 F.2d 53
• Decision Date: 24 July 1975
• Docket Number: Nos. 73-1766,73-2035,s. 73-1766
• Parties: John Roy HARPER, II, et al. v. Edward H. LEVI, Attorney General of the United States, et al., Appellants (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 53

520 F.2d 53

171 U.S.App.D.C. 321

John Roy HARPER, II, et al. v. Edward H. LEVI, Attorney General of the United States, et al., Appellants (two cases).

Nos. 73-1766, 73-2035.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 12, 1974.

Decided July 24, 1975.

J. Roger Wollenberg, Washington, D. C., with whom Max O. Truitt, Jr., Timothy N. Black, William T. Lake, and Armand Derfner, Washington, D. C., were on the brief, for appellees. Max O Truitt, Jr., Washington, D. C., also entered an appearance for appellees.

Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

Dissenting opinion filed by Circuit Judge MacKINNON.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This case presents issues, never before tendered to this court, concerning executive enforcement of Section 5 of the Voting Rights Act of 1965. ¹ Appellees ² filed a class action in the District Court seeking review, pursuant to Section 10 of the Administrative Procedure Act, ³ of a decision by the then Attorney General to forego objection under Section 5 to a proposed reapportionment of the South Carolina Senate. The Attorney General had independently concluded that the reapportionment was proscribed by Section 5, but nevertheless had "deferred" to the countervailing decision of a federal district court in South Carolina ⁴ and had declined to lodge an objection. In the action germinating this appeal, the District Court held that the Attorney General had not fulfilled his statutory obligation and ordered him to reconsider without regard to the prior court decision. ⁵ The Attorney General subsequently interposed an objection to the reapportionment, thereby preventings its effectuation. ⁶

Appellants ⁷ argue that the District Court was without jurisdiction, ⁸ that the Attorney General's determinations under Section 5 are not reviewable, ⁹ and that an objection was precluded in this instance by the antecedent judicial decision. ¹⁰ We find none of these contentions persuasive. For reasons articulated in the discussion that follows, we affirm the District Court's action.

I. PROCEDURAL HISTORY

States and political subdivisions embraced by Section 4 of the Voting Rights Act ¹¹ are forbidden by Section 5 from instituting any change in voting qualifications or procedures without first obtaining a judgment in the District Court for the District of Columbia declaring that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." ¹² Alternatively however, Section 5 authorizes submission of the proposed change to the Attorney General, ¹³ and if he does not object within 60 days the change may be effected. ¹⁴ The Attorney General has construed Section 5, in regulations that have been upheld by the Supreme Court, ¹⁵ to require him to consider the submission by the same criteria that govern adjudication of a request for a declaratory judgment. ¹⁶ South Carolina has been intercepted by Section 4, ¹⁷ and the parties agree that the prohibitions of Section 5 are applicable to the electoral changes involved in this case. ¹⁸

On November 11, 1971, the General Assembly of South Carolina passed Act 932, which adopted alternative reapportionment plans for the state's Senate. ¹⁹ Both plans provided for multi-member districts, ²⁰ required candidates to run for numbered posts, ²¹ and imposed the requirement that primary elections be decided by majority vote. Several suits were filed in the District Court for the District of South Carolina ²² to enjoin the operation of Act 932 on the grounds that it violated the Voting Rights Act and, as well, the Fourteenth and Fifteenth Amendments. The cases were consolidated, and a three-judge court was convened to hear the challenges they presented.

While these actions were pending, South Carolina, on November 22, 1971, submitted Act 932 to the Attorney General for Section 5 approval. On March 6, 1972, the Attorney General interposed an objection to the changes it contemplated. He stated that on the basis of recent federal court decisions ²³ he was "unable to conclude, with respect to (Act 932), that the combination of multi-member districts, numbered posts, and a majority (run-off) requirement would not occasion an abridgement of minority voting rights in South Carolina." ²⁴

About a month later, in Twiggs v. West, ²⁵ the District Court for the District of South Carolina rejected the Fifteenth Amendment claim against Act 932, but held that the legislation unconstitutionally infringed Fourteenth Amendment rights because of impermissible population variances and invalid residency provisions. ²⁶ The court refused to consider challenges based on the Voting Rights Act, recognizing that the District of Columbia was "the proper forum" for litigating them. ²⁷ The court declined to draw its own reapportionment plan and indulged the General Assembly 30 days to enact an acceptable substitute. ²⁸

In response, on May 6, the General Assembly passed Act 1205 the legislation involved in this action which, like its forerunner, provided alternative schemes for reapportioning the Senate. Act 1205 modified the prior residency feature and reduced the population variances, ²⁹ but maintained the provisions for multi-member districts, numbered posts, and majority vote in primaries. ³⁰ Act 1205 also included a provision extending the numbered post requirement to existing multi-member districts of the House of Representatives, the other chamber of the South Carolina General Assembly. ³¹ South Carolina submitted Act 1205 to the Attorney General on May 12, and eleven days later the Twiggs court held that the new Senate reapportionment comported with constitutional requirements. ³²

On May 30, while the Attorney General was considering Act 1205, South Carolina submitted additional legislation, Act 1204, to the Attorney General. ³³ Act 1204 extended the numbered post requirement beyond the Senate to all multi-member elective districts in South Carolina. On June 16, 1972, in accordance with established procedure, ³⁴ the Attorney General requested additional information regarding Act 1204. On June 19, he notified South Carolina that the information had been received, that the submission was complete, and that the 60-day period for review began to run on that date. ³⁵

On June 30, the Attorney General interposed an objection to Act 1204 and to the part of Act 1205 specifying numbered posts in the state House of Representatives. ³⁶ The Attorney General declined to object, however, to the provisions of Act 1205 applicable to the Senate. His notification in that regard stated that he had independently concluded that Act 1205 had a racially discriminatory effect in contravention of Section 5, but that he felt "constrained to defer the . . . determination of the three-judge District Court" in Twiggs. ³⁷ "It would in our view not be appropriate," he said, "to read the Voting Rights Act as requiring or permitting the Attorney General to review a determination made by a United States District Court in the proper exercise of its statutory jurisdiction." ³⁸

On August 10, 1972, appellees filed the present litigation in the District Court for the District of Columbia challenging the Attorney General's failure to object to the Senate reapportionment contained in Act 1205. The District Court granted appellees' motion for summary judgment ³⁹ on May 16, 1973, and ordered the Attorney General to make "a reasoned decision in accordance with his statutory responsibility." ⁴⁰ In response to the order, the Attorney General filed a memorandum setting forth his position. "Act No. 1205," he declared, "has a clear and substantial racial effect in contravention of the Fifteenth Amendment and its protections under Section 5 of the Voting Rights Act." ⁴¹ "Indeed," he continued, "the reasons for finding a contravention of the Fifteenth Amendment in (Act 932) . . . are also present upon reviewing (Act 1205)." ⁴² Nevertheless, on the ground that he was constrained to bow to the Twiggs decision, the Attorney General reaffirmed his refusal to object.

On July 19, the District Court issued a second order, noting that appellants had "represented in open court that if the Attorney General considered Act 1205 without regard to the decision of the Three Judge District Court . . . , he would enter an objection to such act." ⁴³ The court directed the Attorney General to "consider Act 1205 without regard to the decision of the Three Judge District Court." ⁴⁴ On July 20, the Attorney General interposed an objection because he was "unable to conclude that Act No. 1205 does not have the effect of abridging voting rights on account of race." ⁴⁵

In this court, appellants contend that the District Court erred in entering these two orders. ⁴⁶ We hold that the court had jurisdiction of appellees' action, ⁴⁷ that the Attorney General's decision not to object was reviewable under the circumstances of this case, ⁴⁸ and that Section 5 requires him to make an independent determination on the merits of the Section 5 issues. ⁴⁹

II. JURISDICTIONAL ISSUES

We first address appellants' contention that the District Court was without jurisdiction to issue the challenged orders. Two grounds for this position are advanced. One is that the action was not timely. ⁵⁰ The other is that the action could be heard and determined only by a three-judge court. ⁵¹ We find neither of these arguments acceptable.

A. Timeliness of the Action

Act 1205 was submitted for the Attorney General's approval on May 12, 1972. Appellants contend that by the terms of Section 5 the Attorney General had to act upon the submission within 60 days of that date, ⁵² with the result that his refusal to object became "final" on July 11. On this premise they further contend that appellees' complaint in the District Court, filed on August 10, was...