*1 al. v. DOLES BERRY et al. et 26, 1978 June Decided No. 76-1690.
Per Curiam. remedy scope of to the challenge a appeal presents
This District Middle for the by three-judge allowed comply with Georgia failure 1965, Stat. Act Rights Voting of 5 provisions Supp. V). (1970 ed., §C. 1973c 42 U. amended, S. intended a statute Georgia enacted the State County Peach members three terms of the stagger then- Revenues. Roads and Commissioners Board of all three 1964, provided statute, adopted existing operation of By four-year intervals. filled at were to be amendment, single at-large member was to be elected two-year to a term four-year in 1968 term sub- *2 sequent general Appellees concede, elections. and the three- judge court found, that the 1968 statute constituted a change in voting procedures subject provisions the § to of 5 and that the change implemented had been been having without first submitted for approval either to the States District United Court for the District of to Attorney Columbia or the General required by 5.§ prior
Four August 10, the 1976, primary election for the two seats on the Board not the including at-large post, appellants filed this action to requirements § enforce the of 5. Appellants’ requests declaratory injunctive relief were upon not acted primary until after the scheduled 1976 general elections. February
-On 28, 1977, three-judge the without court, hearing, enjoined further enforcement of the 1968 statute until appellees such time as compliance effected §with 5. How- the ever, District Court appellants’ request refused to set aside the 1976 elections, noting "the rather changes technical made in the county’s election the by law 1968 amendment more and, important, apparent lack of discriminatory purpose or effect the use of surrounding the law the 1976 elections.” expressly limiting prospective its order to relief, the District Court also relied on our decision in Allen v. State Board of Elections, 393 544 (1969). U. S. April
On 26, 1977, appellants’ court denied motion for reconsideration.
In this Court, appellants position take the that the relief awarded in this case is wholly inadequate in failing remedy existing Appellants § 5 violation. assert that by refusing either set aside to order that all three Board members be elected in the District Court, at least until the 1980 election, leaves undisturbed the effects of the thereby 5 violation, acknowledging that, time, at least may successfully local disregard requirements. officials 5§ on judgment Court District us to affirm urge Appellees posts two involved 1976 election grounds Accordingly, 1968 statute. in the not mentioned were which subject these election to argue, power had that the assuming However, even appel- by suggested remedies one of the alternative to effect correct below was the court believe lants, appellees do so. refusing to curiae, has filed amicus States, as the United request,
At our espoused view, takes The Government case. a brief affected was 1976 election appellants, statute in the 1968 prescribed voting compliance §with prompt require failure District Court's the submission It is to continue. the violation permits *3 staggering question United States case neces- for state' statute provided terms be properly should discriminatory effect racially sarily-has for the District Court either submitted promptly conformity Attorney General or to the of Columbia § forth in 5. procedures approval with the after decided (1971), Matthews, S. 379 400 U. v. Perkins issue remedy to address Allen, had occasion supra, we case that in that “[i]n us. indicated confronts We now which enter an appropriate be might it ... certain circumstances seek federal opportunity an local officials affording order fail only if local officials ordering a new approval and forthcoming.” not approval is required federal or if the to do so here make present circumstances The at 396-397. S., 400 U. appropriate. course such a submit the undisputed obligation appellees’ case,
In this has by Congress designated forum change to voting law requirement conclude that We discharged. been not by appellees should satisfied by § 5 scrutiny imposed federal adopt suggestion we Accordingly, delay. further without an should enter Court the District States United appellees order allowing apply within which to approval of the 1968 voting under If approval § is obtained, the matter If approval will be at an end. is denied, appellants are free to renew to the District Court their request for simultaneous election of all members of the Board at the general election.
The judgment of the District Court is affirmed insofar as holds approval provisions have violated the 5 of the Voting Rights Act; the is judgment reversed insofar as it denies affirmative relief, and the case is remanded to the District Court with instructions to issue an order allowing appellees 30 days apply within which to approval 1968 voting change under and for proceedings further opinion. consistent with this
It is so ordered. Mr. Justice Brennan, whom Mr. Justice Marshall joins, concurring.
I join the opinion. Court’s surely is correct that the District Court committed reversible error not, at very least, ordering County the Peach pre- officials to seek clearance of enforced the 1976 election and affording appellants prior if opportunity, granted, seek an order that would cut short the terms of the two Commissioners elected in 1976 require a new *4 pre-1968 election under the law. The District Court mani- erred in festly to refusing order such relief on the of its basis conclusion that the change was “rather technical” with no “apparent discriminatory purpose or could Nothing effect.” be clearer than that a district of other, than the course, court — District Court for the District of no jurisdiction Columbia-—has purpose assess the change. effect of voting See, g., e. United States v. Board Supervisors, 429 642 S. U. (1977); Matthews, Perkins v. (1971). 400 U. 385 S.
Although the Court does not I issue, reach this think clear 194 obtain federal hereafter do not County officials Peach if the
that, order the District must change, for the preclearance time— earliest at the feasible three for all election newa if a For 1978 election. regularly scheduled being here approve entity hereafter cannot federal designated necessarily it follows neutral, racially itself the 1976 election probability is a substantial there permit To voting. discrimination racial perpetrated a of such in the face to stand of the 1976 election results designed what 5 was precisely do be to would determination operate delay and litigation the burdens forbid: allow possibly the victims of perpetrators against of the in favor Carolina v. South See discriminatory practices. racially Katzenbach, (1966). 383 U. S. District Court agree the* therefore, while
However, I, that, of the view also error, am reversible committed be can strong argument case, circumstances obtained, can be preclearance or not that, made 1976 election remedy is to aside sufficient only the Peach Here, law. pre-1968 new election under order time reasonably believed at the could not have County officials change could continue voting that the 1976 election of the approval; prior federal obtaining validly enforced without present in cases from that quite the situation is different thus Matthews, scope supra, where Perkins v. like was election that unsettled at the time had been duty under attack. ordering a new remedy present one, in cases like
If, units political required cases, is not to be all flagrantly incentive positive may have a by § covered preclearance not to seek obligations clear disregard their will then jurisdictions For covered voting changes. proposed result in brought, can violation, if a suit a § know that voting enforce to continue to those being right denied the their in the federal not have received that could changes *5 place. first As to all other voting changes, the sole effect of a suit for noncompliance with approval provisions will be the limited sanction of requiring political unit to obtain the federal approval which it should have received before any change was instituted.
The legislative background of 5 strongly suggests to me that Congress expressly preclude intended to such a state affairs. Section 5, of course, was intended to prevent those States which had a history of racial discrimination in voting from adhering to their long-established practices of continually contriving new laws deprive blacks of newly won voting rights. Congress sought place the burden of inertia and litigation delay on the perpetrators of the discrimination requiring affected voluntarily States to submit any new law affecting voting for federal before it became effective. The remedial theory the Court today embraces may retard, not further, the objective of polities having voluntarily comply with 5,§ possible consequence may well be that a very large share of the burden of implementing federal policy will be placed on public private enforcement. We ought to have benefit full briefing argument and oral help indicate whether this will be the case.
I do not regard Perkins v. Matthews, supra, as necessarily
supporting the Court’s decision. While it is true that
Court there stated that there might be circumstances in which
it would be appropriate to order a new
if federal
approval for the voting change
procured
were not
within
specified time period,
However, since down case the and jurisdiction probable note to colleagues opinion. Court’s join I the argument, oral for judgment. in the concurring Powell, Mr. Justice simply be would course the wiser I believe Although the reluctantly I along below, go judgment the to affirm for bring it here than rather case of this resolution Court’s I consider only because do this to willing I am argument. any rea- find could Attorney General the unlikely that most in this issue change at of the denying approval for basis soned will ever below court improbable it is Thus, case. two terms short cut to request on the pass to have ap- Court allows which the in elected Commissioners Ante, approved. if the to “renew” pellants court my view emphasize I write 193. case. handling of common-sense for its faulted be cannot view. disagree with the Court I not understand do deserve this case posture procedural and facts a state Under gives them. than treatment fuller of Roads Commissioners the Board 1964, in enacted law mem- of three composed is County, Ga., for Peach Revenues 1, 800, § No. Laws Ga. posts. numbered assigned bers, designated by residents filled 1 and Posts p. 2627. all three 1968, Until large. elected at Post districts, and terms. four-year for simultaneously elected were for providing statute enacted a Legislature Georgia 1968, the Ga. terms. Commissioners’ staggering a partial statute, Post 2473. Under p. 2A, 800, § Laws No. two-year term to a be elected towas at-large seat, change was made No four-year terms. thereafter only should consideration relevant made that the argument be strong can duty was clear terms the other Commissioners. two The result is that longer election Post 3 no is held at the same time as posts.1 the other two Elections were held under the amendment in 1968, 1970, 1972, and 1974 without challenge. It August 6, was on 1976—-four days before the 1976 primary appel- election —that lants filed this lawsuit seeking enjoin that election *7 general election on ground the amendment had not received the imprimatur of the Attorney General or the District Court for of required by Columbia as 5§ of the Voting Rights Act of A judge of single District Court, acting promptly, ruled on appellants’ motion injunction a preliminary before the primary election was held. That judge, “seriously question[ing]” change even was by covered and apparently view the tardiness of the suit —which to day this has not been explained sensibly enjoin refused to App. election. — Jurisdictional Statement 7a.
After the primary 1976 general elections for 1 Posts and 2 had been held, a three-judge District Court was convened. That court concluded that subject the 1968 was amendment preclearance to the requirements of 5 all, after enjoined enforcement of the 1968 amendment until those requirements had been met. “Given the rather technical changes county’s made in the law 1968 amend- ment more and, important, apparent lack of discrimi- natory purpose or effect surrounding the use of the law the 1976 elections,” however, appellants’ court denied request Id., to set aside those elections. citing Allen v. 2a-3a, State 1 It should be Court, noted that the amendment was enacted before this by judicial interpretation, coverage extended Voting Rights in, g., Elections, Act 1965 e. Allen State v. 393 U. S. (1969), Matthews, (1971). and Perkins Thus, v. U. S. when the enacted, amendment was there suspect preclear- was no reason to that § required. anee was ,2 Elections, (1969) The three- 571-572 U. S.
Board remand itself and thereupon “dissolve judge [ed] court [d] pro- and further for such other originating judge case to the required.” may opinion as ceedings consistent 4a. App. to Jurisdictional Statement for reconsideration filed a motion Appellants then In this motion court’s order. three-judge modification of the court to three-judge first time —asked the appellants the—for in 1978 if the for election all three stand order that cutting short the terms thus approved then, was Jurisdictional in 1976. See elected the two Commissioners Amicus Brief United States 1, 15-16; 7 n. Statement to consider court refused Curiae 4. The question relief is a problem “The request, stating: belated Statement App. court.” to Jurisdictional single-judge for a invitation accept this clear did not Appellants, however, 5a. court. before a press request single-judge their urging the instant brought appeal, Instead, they terms or to cut elections, either set aside the short *8 declaring all by elected in 1976 Commissioners two amicus curiae in United States as posts open three 1978. The election be request that the 1976 support appellants’ does not support appellants’ request that Neither does it aside. it seeks open Instead, in 1978. declare all three court either in the appellants requested, never have relief that order asks the Court to enter an below or in this Court. It within give the District Court to directing sought If preclearance is preclearance. which to seek 5§ argues the United then change approved, or if the States appellants directed to allow District Court should be that the members at for election of all three request “to renew their Allen, in the Court took giving prospective effect to its decision discriminatory purpose or effect of fact “the [the into account that by statutes, court.” 393 challenged] any, if has not been determined S.,U. at 572.
the same time.” Brief for United States as Amicus Curiae 8. The United States, infra, like Court today, see n. care- fully no position takes on whether the District Court should grant such further relief if request is “renewed.”
In my view, the Court would fully justified in holding that the United States, which is party not a to this suit and did not participate the court below, is barred from injecting a new into the issue case requesting grant the Court to relief appellants themselves never have It sought. would be equally justified in holding appellants from barred asking the Court to declare all three posts open in 1978 after the three-judge court declined to on rule request belated and after appellants ignored that express court’s invitation to press their request before single-judge general court. As a rule, this Court does not and should parties not allow or amici to raise issues here that were not raised or ruled upon by the lower courts. Neither should this Court encourage parties bypass avenues relief open that are to them in the lower courts. The facts case Voting is a Rights Act case, and that the amicus is the United States, provide no justifica- tion for departing from salutary these principles.
II Since the Court has chosen, depart without explanation, from these principles, briefly address question of relief presented. that is Appellees do not challenge holding court’s 5,§ has been expanded judicial decision since enactment of the 1968 amendment at issue here, requires preclearance of that amendment. they Nor do chal- lenge that entry court’s injunction of an against enforcing the amendment future elections until approved. *9 they All ask if is the change such approved, a ruling should not applied retroactively abrogate result of elections already held. In my there is much view, force to plea. their
This case is example a classic of how 5,§ enacted to further has been right, important constitutional of an the exercise change inconsequential most cover the expanded judicially expansion, Given this procedure.3 aspect of in retro to grant upon called decide courts are when minor or technical distinguish they should relief, active in to result likely that is change substantive from the change election, the 1976 refusing to aside discrimination. Signifi just did this. credit, much to its court, despite judgment, today does disturb cantly, the Court do so.4 prayer it appellants’ imposes Act Rights Voting remembered that the
It must be limited on a country of our history in the unique restrictions of measure bring The need to number of selected States.5 requires prior supra, Matthews, Court held that In Perkins “§ v. S., at polling places.” 400 U. of any changes in the location submission jurisdic places polling in precincts There are thousands 388. boundary precinct lines Act, changes in tions covered frequent inevitable necessary to accommodate places at intervals polling Act, a interpretation the Court’s population shifts. But under is half a block precinct polling place locality single line moves Washington. required permission from obtain first to 193, ante, suggestion, at rejects Mr. BreNNAn’s thus The Court Justice on refusing relief in to order “erred [retroactive] that the District Court with no technical’ was ‘rather of its conclusion that basis ” State discriminatory Allen effect.’ See also v. purpose or ‘apparent supra; Perkins v. 572, quoted Elections, S., in n. 393 U. at Board of Matthews, S., 400 U. at ‘pre- recently so-called has written: As Mr. Justice SteveNs “[The] extraordinary provisions requirement one remedial clearance’ of most Department of Justice Even the its broad remedies. in an Act noted for ordinary concepts departure . . from a 'substantial . has described significant sovereignty is system’; on state its encroachment our federal Comm’rs, 435 U. S. Board United States and undeniable.” v. Sheffield omitted). Mr. Justice (footnote (1978) (dissenting opinion) 110, 141 revolutionary by describing point 5 as “a made the same Harlan much handful of government” applies to “a innovation American which (concurring supra, Elections, Allen v. State States.” dissenting part). part and
201 common, application further by sense to its is underscored supplicants that state local now for the fact officials 5 Attorney dispensation approval General’s under “at the no 1,000 per year, over and this rate is means rate if covered indicative the number of involved all submissions fully preclearance political complied States and units interpreted by the United requirement, Attorney as General.” Comm’rs, 147 110, States v. U. 435 S. Sheffield omitted). When (1978) (Stevens, J., (footnote dissenting) Attorney may a block its change submitted, General he implementation simply by within 60 stating, days, discriminatory is unable to conclude that does have purpose Georgia States, 411 effect. v. United 537 U. S. (1973). may As more or at result, “the State be left less id., sea,” J., put at 544 unable to into dissenting), (White, effect such of a changes routine and trivial as the movement polling place or precinct boundary line.6 I agree with the
Thus, although Court that the court refusing elections, did not err in to set aside proper remain dubious as to whether it would be more that court order all three to stand for election in if the is not change approved. framed, As the Court’s order is however, question still is if the open this in the District Court change approved.7 Perhaps is not that court will be able Attorney One would like to assume that exercises General unprecedented power legislation personally to veto state local But, applica thoughtful previously noted, with the most deliberation. dispensation 1,000 per Washington tions for his flow a rate of over year per day. Attorney if had no business Even General —almost imposed upon might duties other him one doubt than those sensitivity, possible pass judgment, it would be for him to with care and upon procedure each for his election laws or submitted approval. “adopt[s] suggestion Court of the United States allowing appellees should enter an order within apply which to . . . If the 1968 under 5.§ me between apparent distinction that some perceive which relief denial of elections —the aside the 1976 setting *11 same result the essentially achieving upholds Court —and in elected two Commissioners terms the short the cutting 1978. for election posts to stand all by ordering three court ever the unlikely I consider it Because disposition acquiesce in to face this question, will have an order instructions to issue remanding “with Court of the approval for apply which days within to allowing proceed- further under and for voting change 5,§ of the 1968 Ante, 193. opinion.” with ings Court’s] consistent [the Mr. Justice Stevens with whom Rehnquist, Mr. Justice dissenting. joins, an to issue Court requested has this party to case
No approval apply to allowing appellees requiring order Act Voting Rights under to by this Court States, requested when The United States request. But the United made such a express views, its standing it has no case, in this only an amicus is curiae parties. requested has never been request relief which scope beyond merely goes Court opinion also decides but Court, the District any sought relief from state- presented jurisdictional beyond questions those District Court their denied, appellants free to renew to is the 1978 members of Board at request of all for simultaneous election Ante, at 192-193. general election.” Court with instructions “to the District remands the case It then apply days allowing appellees 30 within which
issue an order proceedings further change under and for voting approval of the Ante, does not opinion.” at 193. Court But consistent request appellants grant “renewed” the District direct appellees 30 may District Court allow make. is All orders "renew” preclearance appellants and allow seek which to within if the request elections for simultaneous their approved. appellants.
ment of In so doing, of course, opinion contrary to our Rule provides: which “Only the questions set forth in jurisdictional statement or fairly comprised therein will be considered by the court.”
I would affirm the judgment of the District Court in its entirety.