US v. BOARD OF COM'RS OF SHEFFIELD, ALA.

• Decision Date: 27 June 1977
• Docket Number: Civ. A. No. 76-M-1086.
• Parties: UNITED STATES of America, Plaintiff, v. BOARD OF COMMISSIONERS OF SHEFFIELD, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

430 F. Supp. 786

UNITED STATES of America, Plaintiff, v. BOARD OF COMMISSIONERS OF SHEFFIELD, ALABAMA, et al., Defendants.

Civ. A. No. 76-M-1086.

United States District Court, N. D. Alabama, Northwestern Division.

December 13, 1976.

On Motion for Reconsideration March 31, 1977.

Probable Jurisdiction Noted June 27, 1977.

Wayman G. Sherrer, U. S. Atty., Caryl P. Privett, Asst. U. S. Atty., Birmingham, Ala., Edward H. Levi, Atty. Gen., J. Stanley Pottinger, Asst. Atty. Gen., Gerald W. Jones, Sheila K. Delaney, Dept. of Justice, Washington, D. C., for plaintiff.

Vincent McAlister, and Braxton Ashe, Almon, McAlister & Ashe, Sheffield, Ala., for defendants.

Before RIVES, Circuit Judge, and GROOMS and McFADDEN, District Judges.

Probable Jurisdiction Noted June 27, 1977. See 97 S.Ct. 2970.

MEMORANDUM OPINION

McFADDEN, District Judge.

The Attorney General of the United States initiated this action pursuant to the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c, seeking to enjoin the implementation of a proposed change in the form of the government of the City of Sheffield, Alabama, to the extent that it provides for an at-large method of electing city councilmen until federal pre-clearance by either of the two statutorily required methods has been obtained.

On March 20, 1975, the City of Sheffield, pursuant to Section 5 of the Voting Rights Act, submitted to the Attorney General of the United States for pre-clearance a proposal for conducting a referendum to determine "whether the present commission form of government shall be abandoned in favor of the Mayor and Aldermen form of government." The Attorney General did not object to the holding of the referendum, but cautioned that the change to the new form of government remained subject to the pre-clearance requirements of Section 5. The voters of the City approved the referendum on May 13, 1975, thereby authorizing a change from a Commission form of government to a Mayor-Council City Government. On October 23, 1975, the Attorney General received the City's submission for pre-clearance of the change to the Mayor-Council Government, which the City contends was unnecessary, but done out of an abundance of caution. On December 22, 1975, the Attorney General requested additional information, which he received on May 5, 1976. On July 6, 1976, the Attorney General interposed an objection to the proposed at-large method of electing City Councilmen under the new form of government and on August 9, 1976, initiated an action seeking to enjoin the election of City Councilmen under the new plan.

This Court, on September 29, 1976, denied plaintiff's request for an injunction and dismissed its complaint on the basis that the Attorney General's objection of July 6 was untimely; thereafter this Court was asked by plaintiff to reconsider the Court's ruling of September 29. The September 29 ruling provided, inter alia, the following:

Plaintiff merely offers the Executive Order to demonstrate that Monday, July 5, was a `federal holiday,' citing the Executive Order without more. No evidence of the number or percentage of federal employees excused under the Executive Order was presented to the Court. The Court is of the opinion that plaintiff has failed in its burden to establish an exception to the rule that a limitations period should be allowed to run unmolested unless an exception is demonstrated and accordingly the objection was untimely.

This Court remains of the opinion that plaintiff failed at trial and in its post-trial brief to demonstrate that July 5, 1976, was a federal holiday for employees of the Justice Department; however, after considering the Government's Rule 59, Fed.R. Civ.P., motion and in taking cognizance of the affidavits filed therewith, the Court is now satisfied that July 5 was a federal holiday for employees of the Justice Department, making July 6 the next full business day for the Attorney General which under his regulations would make the objection timely. (We assume the validity of the regulation for the purpose of this case, but express no opinion thereon.) Accordingly, the Court is of the opinion that plaintiff's Rule 59 motion is due to be granted to the extent that July 6, 1976 was the next full business day for the Attorney General and his employees; therefore making the objection timely. 28 C.F.R. § 51.3(c).

Since the Court, in its opinion of September 29, did not address several issues, it is now necessary to do so.

1. Is the City of Sheffield, Alabama, a "political subdivision" as defined by the Act and as reflected by the Act's legislative history?

2. Did the Attorney General's approval of the referendum have the force and effect of also approving the change from a Commission to a Mayor-Council form of government?

This Court previously held that the City of Sheffield was covered by the Act, relying on Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), but upon further analysis the Court is of the opinion that this was error. Perkins involved the City of Canton, Mississippi, and the Court in a footnote without discussion stated that Mississippi and its subdivisions were covered. (400 U.S. 382, n. 2, 91 S.Ct. 431)

All reported cases which the Court has found applying the Voting Rights Act to municipalities have involved either state legislative enactments clearly subject to the Act, such as did Robinson v. Pottinger, 512 F.2d 775 (5th Cir. 1975), and United States v. Cohan, 358 F.Supp. 1217 (S.D.Ga.1973); or they involved cities which do in fact conduct or supervise registration of voters. Of the latter type are Perkins v. Matthews, supra (see Miss. Code Ann. § 21-11-3); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (see Code of Va. Tit. 24.1, §§ 43-46, Cum.Sup. 1976);¹ United States v. Garner, 349 F.Supp. 1054 (N.D.Ga.1972) (see Ga. Code Ann. § 34A-502); and Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) (see La.Rev.Stat. §§ 18:270.101, 18:270.105, and 18:207.301, Cum.Supp. 1976).²

Designated states and subdivisions under the Act are subject to the pre-clearance procedures of section 5, when they "enact or seek to administer 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 ..." 42 U.S.C. § 1973c, as amended. The Attorney General's designation of a state implies his designation of its political subdivisions. 1965 U.S.Code Congressional and Administrative News, pp. 2456, 2561. Political subdivision is clearly defined in the Act, 42 U.S.C. § 1973l(c)(2): "The term `political subdivision' shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting."

The legislative history of this section makes it clear that this section was intended as a restriction on the coverage of the Act.

Clause (2) of this subsection is new. It defines `political subdivision' as a county or parish except that in those instances where registration is not conducted under the supervision of a county or parish, the term includes any other subdivision of a State which conducts registration for voting. This definition makes clear that the term `political subdivision' is not intended to encompass precincts, election districts, or other similar units when they are within a county or parish which supervises registration for voting.

1965 U.S.Code Congressional and Administrative News, p. 2569; see also p. 2464.

Under Alabama law municipalities neither conduct nor supervise registration of voters. All registration powers are vested in County Boards of Registrars which furnish voter lists to municipalities. Tit. 17, § 21, Code of Alabama (Recomp. 1958); see also Tit. 37, § 34(35) Code of Alabama (Cum.Supp. 1973). Accordingly, this Court is of the opinion that the City of Sheffield is not covered by the Voting Rights Act of 1965. It is a political unit, but within a county which supervises registration for voting; therefore, falling outside the definition of "political subdivision" as defined by the Act and the legislative history thereof.

This Court is further of the opinion that by approving the referendum the Attorney General in fact approved the change to the Mayor-Council form of government notwithstanding his caution to the City that the change was also subject to pre-clearance.

After the referendum was adopted, the Attorney General objected to the new form of government on the basis of the at-large method of electing the City Councilmen and indicated a preference for separate election districts. He did not object to the at-large method of electing the Mayor or the Council President. Prior to approval of the referendum the Attorney General was made aware that under the law of Alabama, if the referendum was adopted, the City would be obliged to follow the directive of Tit. 37, § 426, Code of Alabama (Recomp. 1958), which provides, inter alia, for the at-large election of Mayor, Council President and City Councilmen. The Attorney General's approval of the referendum may be characterized in one of the two ways. First, his approval of the referendum carried with it an implicit approval of the new government. Secondly, his approval of the referendum terminated his authority under the Act to further oversee the results of the referendum, since the new government thereby adopted is mandated by Alabama law.

Accordingly, it is the opinion of this Court that the Attorney General's approval of the referendum, paired with his actual or constructive knowledge of Tit. 37, § 426, precludes further objection to the City's new form of Government.

Other courts have called the Attorney General's authority into question in voting right cases. The case of Jenness v. Little, 306 F.Supp. 925, 927 (N.D.G...