CITY OF MONROE ET AL. v. UNITED STATES
No. 97-122
Supreme Court of the United States
Decided November 17, 1997
522 U.S. 34
The United States claims the city of Monroe, Georgia, did not seek preclearance for majority voting in mayoral elections, as required by § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended,
I
The parties agree upon the facts. Until 1966, Monroe‘s city charter did not specify whether a candidate needed a plurality or a majority vote to win a mayoral election. In practice, the city used plurality voting in its elections until 1966 and majority voting thereafter.
In 1966, the General Assembly of Georgia amended the city‘s charter to require majority voting in mayoral elections. 1966 Ga. Laws 2459. Because Monroe is a jurisdiction covered by § 5 of the Voting Rights Act, the change had to be precleared. Georgia or Monroe could have sought preclearance by submitting the change to the Attorney General or seeking a declaratory judgment from the United States District Court for the District of Columbia. Neither did, so the 1966 charter amendment was not precleared.
In 1968, the General Assembly passed a comprehensive Municipal Election Code (1968 code), which is still in force today. The statute applies to Monroe and all other municipalities in Georgia. Section 34A-1407(a) of the 1968 code
“If the municipal charter . . . provides that a candidate may be nominated or elected by a plurality . . . , such provision shall prevail.”
The second sentence lays down a state-law default rule for all other cities:
“Otherwise, no candidate shall be . . . elected . . . [without] a majority of the votes cast . . . .”
Georgia Municipal Election Code, § 34A-1407(a) (1968 code section or § 34A-1407(a)), 1968 Ga. Laws 977, as amended, Ga. Code Ann. § 21-3-407(a) (1993) .
Georgia submitted the 1968 code to the Attorney General for preclearance. Its cover letter stated: “‘In view of the variety of laws which heretofore existed, no effort will be made herein to set forth the prior laws superseded by the Municipal Election Code.‘” 962 F. Supp., at 1505. The letter then listed the majority-vote provision as a significant change, noting: “‘Whether the majority or plurality rule is in effect in the municipal election will depend upon how the municipality‘s charter is written at present or may be written in [the] future . . . .‘” Ibid. The Attorney General objected to other provisions of the 1968 code but did not object to § 34A-1407(a), so it was, and is, precleared. The United States does not dispute this conclusion, nor does it claim Georgia‘s submission was misleading, ambiguous, or otherwise defective.
In 1971, the General Assembly passed a comprehensive revision of Monroe‘s charter. 1971 Ga. Laws 3227. The 1971 charter made explicit provision for majority voting. Neither Georgia nor Monroe sought to preclear the revisions to the charter.
In 1990, the General Assembly once again amended Monroe‘s charter and carried forward the majority-vote requirement. This time, Monroe sent the 1990 charter to the Attor-
II
The 1968 code must be the centerpiece of this case, for it defers where city charters are specific and provides a default rule where they are not. If a city charter requires plurality voting, the deference rule in the first sentence of the 1968 code section allows the municipal charter provision to take effect. Monroe, however, does not have and has not had a plurality-vote provision in its charter. The first sentence simply does not apply here because no charter provision triggers its rule of deference to municipal law. Thus, the second sentence‘s default rule of state law governs, requiring Monroe to use majority voting. Since the Attorney General precleared the default rule, Monroe may implement it.
The District Court reached a contrary conclusion, relying on a single footnote in City of Rome v. United States, 446 U. S. 156, 169-170, n. 6 (1980). As the District Court put it: “The [Rome] Court‘s rationale focused squarely on the notion that [Georgia‘s] submission of the 1968 Statewide Code did not put before the Attorney General the propriety of changes in the voting practices of individual cities.” 962 F. Supp., at 1513.
The court‘s reliance on the footnote was misplaced. Unlike this case, which concerns the default rule in the second sentence of the 1968 code section, the City of Rome footnote concerned the deference rule in the first sentence. Rome‘s pre-1966 charter had an explicit requirement of plurality voting. When the General Assembly amended Rome‘s charter to provide for majority voting, no one sought to preclear this or other changes. “Rome [later] argue[d] that the Attorney
This Court rejected Rome‘s claim because the submission of the 1968 code did not submit Rome‘s 1966 charter for preclearance “in an unambiguous and recordable manner.” 446 U. S., at 170, n. 6 (internal quotation marks omitted). Georgia‘s submission of the 1968 code “informed the Attorney General only of [Georgia‘s] decision to defer to local charters and ordinances regarding majority voting” should a city choose to include a voting provision in its charter as permitted by the deference rule. Ibid. (internal quotation marks omitted; emphasis added). Georgia‘s submission of the 1968 code did not give the Attorney General “an adequate opportunity to determine the purpose of [Rome‘s 1966] electoral changes and whether they will adversely affect minority voting.” Id., at 169, n. 6.
Indeed, Georgia‘s submission of the 1968 code did not even arguably constitute a request for preclearance of the 1966 change to Rome‘s charter. Given that the unprecleared charter amendment was a nullity as a matter of federal law, the 1968 code did not change the law in Rome. Rather, it deferred to the plurality-vote requirement in the pre-1966 charter. In this case, however, the 1968 code is what changed the law in Monroe. Accordingly, unless the Attorney General‘s preclearance of the code was a nullity, there has been no violation of the Voting Rights Act.
In short, City of Rome rejected Rome‘s effort to use the submission of the 1968 code to validate the 1966 municipal electoral changes. City of Rome, in discussing the “decision to defer to local charters,” recognized that the case arose
The instant case, in contrast, is controlled by the default rule of state law set forth in the second sentence. Monroe‘s pre-1966 charter, unlike Rome‘s, did not require plurality voting and so could not trigger the rule of deference to municipal law in the first sentence. Thus Monroe, unlike Rome, does not need to breathe life into its invalid 1966 charter to circumvent the rule of deference. After one disregards Monroe‘s invalid 1966 and 1971 charters, the state-law default rule mandates majority voting.
Cases, such as this one, arising under the default rule satisfy all of the preclearance requirements in City of Rome. The Government does not dispute that Georgia submitted the state-law default rule to the Attorney General in an “unambiguous and recordable manner.” The submission, furthermore, gave the Attorney General “an adequate opportunity to determine the purpose of the [default-rule] electoral changes and whether they will adversely affect minority voting.” In consequence, by preclearing the 1968 code the Attorney General approved the state-law default rule. The controlling default rule having been precleared, Monroe may conduct elections under its auspices.
Because the 1968 code disposes of the case on this undisputed factual record, the Court need not address appellants’ other contentions. The judgment of the District Court is
Reversed.
Justice Scalia, concurring in the judgment.
Although I agree with the result reached by the Court, my reasoning is somewhat different. Like Justice Breyer, I
The second sentence, however, sets forth a default rule of majority voting for all municipalities that have not treated the matter in their charters. To think that this effects a change, one need only believe that some municipalities have no charter provision on point, and that a subset of those have adopted a practice of plurality voting. Such a belief is not only reasonable; it is virtually essential unless one is to consider the statute pointless. As to the second sentence, therefore, the Attorney General ought to have known that he was approving a switch to majority voting in some municipalities. If that seemed to him possibly troublesome, I think the burden was upon him to inquire further, and not upon the State, every time it enacts a statewide statute affecting voting, to submit a city-by-city breakdown of the consequences. City of Rome need not and should not be extended that far.
Justice Souter, with whom Justice Breyer joins, dissenting.
In 1968 the Georgia Legislature enacted a Municipal Election Code with the following provisions governing the alternatives of plurality and majority voting:
“If the municipal charter . . . provides that a candidate may be nominated or elected by a plurality of the votes cast . . . , such provision shall prevail. Otherwise, no candidate shall be . . . elected to public office in any election unless such candidate shall have received a majority of the votes cast . . . .”
Georgia Municipal Election Code, § 34A-1407(a), 1968 Ga. Laws 977, as amended, Ga. Code Ann. § 21-3-407(a) (1993) .
These provisions were applicable in ways that would result in no changes in election practices in communities whose charters (so far as otherwise enforceable) provided that a plurality would suffice, whose charters provided that a majority was required, or whose charters were silent but whose practices had been to require a majority. The first sentence quoted from the code (deferring to plurality provisions) would confirm the practice in the first class of municipalities, while the second sentence (a default provision requiring a majority in all other cases) would confirm the practices in the second and third classes. The new code would, however, require a change in the practice in any community whose municipal charter (so far as otherwise enforceable) was silent on the plurality-majority issue, but in which the practice had been to accept a plurality as sufficient.
The 1968 code was submitted to the Attorney General of the United States for preclearance under § 5 of the Voting Rights Act,
In Rome‘s case, the charter provision that was valid and enforceable when the 1968 code was precleared provided expressly for plurality voting. Therefore, the code‘s deference
“We also reject the appellants’ argument that the majority vote, runoff election, and numbered posts provisions of the city‘s charter have already been precleared by the Attorney General because in 1968 the State of Georgia submitted, and the Attorney General precleared, a comprehensive Municipal Election Code that is now Title 34A of the Code of Georgia. Both the relevant regulation,
28 CFR § 51.10 (1979) , and the decisions of this Court require that the jurisdiction ‘in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act,’ Allen v. State Board of Elections, 393 U. S. 544, 571 (1969), and that the Attorney General be afforded an adequate opportunity to determine the purpose of the electoral changes and whether they will adversely affect minority voting in that jurisdiction, see United States v. Board of Commissioners of Sheffield, Ala., 435 U. S. 110, 137-138 (1978). Under this standard, the State‘s 1968 submission cannot be viewed as a submission of the city‘s 1966 electoral changes, for, as the District Court noted, the State‘s submission informed the Attorney General only of ‘its decision to defer to local charters and ordinances regarding majority voting, runoff elections, and numbered posts,’ and ‘did not . . . submit in an “unambiguous and recordable manner” all municipal charter provisions, as written in 1968 or as amended thereafter, regarding these issues.’ 472 F. Supp. 221, 233 (DC 1979).” 446 U. S., at 169-170, n. 6.
Monroe now claims the benefit of the 1968 code‘s default provision, in circumstances just like Rome‘s, with one distinction. Monroe, too, obtained a 1966 charter change purporting to enact a majority requirement, for which Monroe, too, failed to seek preclearance. But Monroe could arguably enforce a majority requirement even if the 1966 unprecleared charter amendment were ignored, simply by applying the code‘s default provision to the circumstances that preceded the unprecleared 1966 amendment: before that amendment, although Monroe‘s charter was silent on the plurality-majority issue, the municipal practice (perfectly valid for purposes of § 5) was to accept a plurality as sufficient. Thus, the unprecleared 1966 charter change could be ignored in Monroe‘s case (as it was in Rome‘s) and the default provision of the 1968 code would make Monroe a majority vote municipality.
As a predicate for applying the 1968 code to effect majority voting requirements, however, this distinction between Rome‘s unprecleared 1966 change and Monroe‘s valid pre-1966 silent charter is not entitled to make any difference. The object of the preclearance requirement is, at a minimum, to apprise the Attorney General of any change in voting practice. Section 5 requires preclearance not only in the case of a change of a voting “standard” that was not in place when the Voting Rights Act took effect, but also of a change in a “practice” or “procedure.”
City of Rome v. United States, 446 U. S. 156 (1980), focused upon a change in Rome, Georgia‘s, method of electing city officials—a change from “first-past-the-post” (plurality wins) to “run-off” (majority needed to win). The change took place in 1966. The change was of a kind that could have made it more difficult for newly enfranchised black voters to elect a mayor (e. g., where the black population of a town amounted, say, to 35% of all voters). The change had not been precleared, though § 5 of the Voting Rights Act of 1965, as amended,
“If the municipal charter . . . provides that a candidate may be nominated or elected by a plurality of the votes cast . . . , such provision shall prevail. Otherwise, no candidate shall be . . . elected to public office in any election unless such candidate shall have received a majority of the votes cast . . . .”
Georgia Municipal Election Code, § 34A-1407(a), 1968 Ga. Laws 977, as amended, Ga. Code Ann. § 21-3-407(a) (1993) .
Rome argued that the Attorney General‘s preclearance of this 1968 change in effect precleared the plurality-to-majority change that Rome had made two years earlier. The Court rejected Rome‘s argument.
The case before us now involves another Georgia city, the city of Monroe. Monroe, like Rome, made a change in its system for electing city officials—a change from “first-past-the-post” (plurality wins) to “run-off” (majority needed to win). Monroe, like Rome, made the change in 1966. And, Monroe‘s change, like Rome‘s change, was not precleared. Monroe, like Rome, argues that the Attorney General‘s pre-
I rest this conclusion upon what the parties argued before the Court in City of Rome and what the Court wrote. Rome, like Monroe, claimed that, in preclearing the 1968 statewide statute, the Attorney General had precleared its local majority system. The reply, by the United States, in City of Rome, included the following argument:
“In its 1968 submission, the State did not ‘submit’ the changes as they applied to the City of Rome. There was no explanation of how, or even whether, the City‘s procedures were changed. In order to ‘submit’ a new procedure, the change must be clearly explained to the Attorney General,
28 C.F.R. 51.10 ; he cannot reasonably be held to be put on notice of the election procedures for every municipality when an act with statewide effect is submitted. As this Court [has] held, preclearance cannot occur until the particular change has been submitted to the Attorney General and he has been afforded an opportunity to assess its purpose and its effect on minority voting in that jurisdiction.” Brief for Appellees in City of Rome v. United States, O. T. 1979, No. 78-1840, pp. 69-70 (citation omitted).
This Court, accepting the argument of the United States, wrote:
“Both the relevant regulation,
28 CFR § 51.10 (1979) , and the decisions of this Court require that the jurisdiction ‘in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act,’ and that the Attorney General be afforded an adequate opportunity to determine the purpose of the electoral changes and whether they will adversely affect minority voting in that jurisdiction. Under this standard, the State‘s 1968 [preclearance] submission cannot be viewed as a submission of the city‘s 1966 electoral changes, for, as the District Court noted, the State‘s submission informed the Attorney General only of ‘its decision to defer to local charters and ordinances regarding majority voting, . . .’ and ‘did not . . . submit in an “unambiguous and recordable manner” all municipal charter provisions, as written in 1968 or as amended thereafter, regarding th[is] issu[e].‘” City of Rome v. United States, supra, at 169-170, n. 6 (citations omitted).
It seems to me that this statement disposes of the case before us. The statement points out that Georgia‘s 1968 submission did not describe the effect of its 1968 changes, town by town, in each of Georgia‘s more than 500 towns and cities. The statement specifically says that Georgia‘s simple “submission” of its 1968 comprehensive municipal code did not preclear Rome‘s “1966 electoral chang[e]” because Georgia did not also “submit” the relevant “municipal charter provisions, as written in 1968 or as amended thereafter.” Georgia did not submit Monroe‘s charter to the Attorney General in 1968 any more than it submitted Rome‘s; nor is there any reason to believe that the Attorney General knew the details of Monroe‘s circumstances any more than he knew the details of Rome‘s. Hence, as the District Court concluded in this case, the 1968 preclearance did not preclear Monroe‘s earlier 1966 change. City of Rome, supra.
This complex difference, in my view, is irrelevant. The Attorney General, in 1968, was no more likely to have known about Monroe‘s change from “plurality-practice” to “majority-charter” than to have known about Rome‘s change from “plurality-charter” to “majority-charter.” Nor is there any reason to believe the Attorney General, in 1968, would have wanted to approve previously unprecleared changes of the former, but not of the latter, variety. There is no more reason to believe that the Attorney General, had he known about Monroe‘s 1966 change, would have approved the application of the 1968 law to Monroe, than to believe that the Attorney General, had he known about Rome‘s change, would have approved the application of the 1968 law to Rome. Indeed, if Monroe‘s black population in 1966 was as high as it is today (37% of the electorate), Monroe‘s change to a majority vote system could have been precisely the sort of discriminatory change at which the Voting Rights Act was directed.
A glance at the Georgia statute, supra, at 45, will make clear, however, just how finely the majority has had to parse the statute in its effort to escape the binding effect of precedent. That is because City of Rome (involving a city with a “majority” charter) and this case both concern the statute‘s second sentence. See Brief for Appellants in City of Rome v. United States, O. T. 1979, No. 78-1840, p. 90; City of Rome v. United States, 472 F. Supp. 221, 233 (DC 1979) (“Rome argues that . . . the 1968 Code mandated majority voting“) (emphasis added). And nowhere does either the statute‘s second sentence or City of Rome explicitly make the default/deference distinction that the majority finds critical.
More importantly, there is no reason to think the distinction is critical in respect to the matter here at issue. The Government has not conceded, silently or otherwise, that the Attorney General‘s preclearance of a statutory “default rule” somehow precleared the application of some such rule to
“[P]reclearance of the majority vote provision incorporated in the State of Georgia‘s 1968 Municipal Election Code did not also preclear the prior or subsequent adoption and implementation of a majority vote requirement by any particular municipality within the State.” Motion to Affirm 11.
That argument rather clearly says that the Attorney General, in effect, precleared the Georgia statute on its face, not as applied to each of Georgia‘s several hundred municipalities. That is the very argument that the Government made, and the Court accepted, in City of Rome.
Justice Scalia does not take the majority‘s view of the Government‘s argument. Rather, he says that, in any event, the Attorney General‘s initial preclearance of the second sentence simultaneously precleared that sentence‘s application because the State‘s submission was detailed enough to impose upon the Attorney General the “burden” of seeking detailed city-by-city information. Ante, at 40. In my view, however, precedent compels a contrary conclusion. In respect to the relevant point—whether the Attorney General cleared the statute on its face or also as applied—one cannot distinguish the issue before us from the (in this respect) identical issue in City of Rome. And that conclusion is consistent with well-established legal principle. See Clark v. Roemer, 500 U. S. 646, 656 (1991) (“[A]ny ambiguity in the scope of a preclearance request must be resolved against the submitting authority“); McCain v. Lybrand, 465 U. S. 236, 257 (1984) (same);
In a nutshell, City of Rome turns on the practical fact that the Attorney General, in preclearing the 1968 Georgia