John Roy Harper, II v. Edward H. Levi, Attorney General of the United States, (Two Cases)

issuеs for nonfrivolous decision this obtaining discretionary re purpose court, sponte sua petition we dismiss his political per possible grounds lief —on review. hardships secution, circum potential adjustment warranting an stances change of a substantial Absent status. situation, pre Circuit decision the Ninth political perse relitigation

cludes issue,36 the 1970 Second Cir and cution forecloses reexamination decision

cuit already have hardship We issue.37 plain insufficiency

adverted adjustment.38 for status case Roy HARPER, II, et John al. argues Schieber increased and virulence of pace his anti-Zionist ac tivity justifies since reopening LEVI, Attorney H. Edward General of year by closed in that issue the Ninth States, al., United et antipathy The mutual Circuit. between (two cases). country his own Schieber have Nos. 73-2035. deepened years, over the but perceive we nothing rendering any Schieber more United States Court Appeals, susceptible “political persecution” now of Columbia Circuit. point, he was 1965.39 On than Argued Sept. 12, 1974. main argument, is his which Schieber evidence, not advance does new but July 24, Decided intervening argues an decision of a Asimakopoulos sister —compels INS40 circuit — relitigation re issue in 1970 by the solved Second Circuit.

The short answer the INS did not solely on the Lee to deny rule

rely Schie Asimakopoulos. had in

ber relief

Moreover, the Second Circuit had con rejected Asimakopoulos

sidered and

argument decision, in its 1970 Schieber certainly court should inter not judgment.41 with that

fere

Hence, to the extent the claims are foreclosed res

he advances

judicata defining statute is,

reviewability42 to the extent —that genuinely he come forward with slightly evidence or has raised a dif

new point43 clearly not an ferent —it abuse of discretion for the to have Board reopen proceedings at this

refused stage. presents no

late Since Schieber 11, supra. 26, supra; Wing note 36. See 41. See note Goon Wah v. INS, 292, 293-294(1st 1967). F.2d Cir. 15, 16, supra. Jones,

Gerald W. Atty., Dept, of Jus- tice, the bar of the United States Court for District bia, the District of Colum- vice, pro hac with whom H. Harold Jr., Tyler, Atty. U. S. at the time the filed, was brief, brief was on the appellants.

J. Roger D. Wollenberg, Washington, C., with whom Truitt, Jr., Max O. Timo- Black, thy N. William Lake, T. and Ar- Derfner, Washington, C., mand D. were brief, appellees. on Truitt, Max O. Jr., C., Washington, D. also en- appearance tered an appellees. BAZELON, Before Judge, Chief MacKINNON, ROBINSON and Circuit Judges. Opinion for by the Court filed Circuit ROBINSON,

Judge SPOTTSWOOD W. III. Dissenting opinion by filed Circuit

Judge MacKINNON. III, ROBINSON, SPOTTSWOOD W. Judge: Circuit presents This issues, case never before court, tendered to this concerning execu enforcement tive Voting Rights of Section 5 of the Appellees2 Act of 1965.1 a class filed action in the District Court review, seeking pursuant to Section 10 of Act,3 Administrative Procedure of a Pub.L.No.89-110, (1965) residing § 79 Stat. 439 South Carolina voters counties af- by Pub.L.No.91-285, (amended reapportionment 84 Stat. fected related to this amended, (1970)), appeal. 42 U.S.C. 1973c (1970), quoted infra note §§ 3. 5 U.S.C. 701-706 appellees, plaintiffs 2. The who were thе named Court, registered black are two by the under

decision then determinations Attorney General’s reviewable,9 forego objection and that 5 are not Section 5 to a Section in proposed in this reapportionment precluded an was of the South judicial decis Carolina Senate. The the antecedent stance independently had none conten ion.10 We find of these concluded that the re apportionment persuasive. For reasons articulated proscribed by tions follows, but nevertheless had discussion that we affirm “deferred” to the countervailing decision of a the District Court’s action. federal dis trict court in South Carolina4 and had I. PROCEDURAL HISTORY lodge objection.

declined to In the germinating appeal, the Dis em political subdivisions States trict Court held that ‍‌​‌​​​‌‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌‌​​​‌‌‍Gen Rights Voting 4 of the braced had eral statutory fulfilled his obli 5 from Act11 are forbidden gation and ordered him to reconsider voting qualifi instituting any change in regard without prior to the court decis first ob procedures cations or without The Attorney ion.5 subse taining judgment the District Court in quently interposed an to the declaring for Columbia reapportionment, thereby preventing its change pur “does not have effectuation.6 and will not have the effect of de pose Appellants7 argue abridging right the District to vote nying or jurisdiction,8 that was without color.” Alternative- Court account of race or West, (D.S.C. Twiggs (a) 71-1106 Civ.No. sions of subsection of this section shall 23, 1972) May (unreported). any any political apply in State or subdivi- (i) Attorney a State which sion of Gen- Kleindienst, Harper F.Supp. (D.D. 1, eral determines maintained on November C.1973). proceedings The in the District Court device, 1968, any respect test or and with completely are more summarized below. See (ii) which Director Census deter- text infra at notes 39-44. per than 50 mines that less persons centum of 6. See text infra at notes 11-16. voting age residing therein were 1, 1968, registered Appellants, on November or that less the defendants in the District Court, per persons are the than 50 the centum of such voted in General of the United presidential election of States and the November 1968. Assistant General in charge Department Rights of the Civil Division of the A determination or certification of the At- Justice, of delegated to whom the torney or of the Director of the Cen- , responsibility General has of ad- sus under this section or under section ministering 5.§ 1973d or 1973k of this title shall not be re- any viewable in court and shall be effective II, Part infra. upon publication Register. in the Federal III, 9. See Part infra. interrelationship The 4 and 5 is §§ discussed IV, 10. See Part infra. Katzenbach, in South Carolina v. 383 U.S. 803, 813-814, 86 S.Ct. amended, (1970). 11. As U.S.C. 1973b (1966). 780-782 See Beer v. United part provides: 4§ relevant States, F.Supp. (D.D.C.), 379-381 (b) provisions (a) The of subsection of this prob. juris. noted, 419 U.S. apply any any section shall State inor L.Ed.2d 45 political (1) subdivision of a state which amended, 12. As 42 provides: U.S.C. 1973c Attorney General determines maintained on 5§ full text of 1, 1964, device, any November test or respect (2) political with which the Director of the Whenever a State or subdivision per respect prohibitions Census determines less than cen- with to which the set persons voting age residing 1973b(a) tum of forth in section of this title based registered upon therein were on November determinations made under the first per 1973b(b) or that less than 50 centum of sentence of section of this title are persons presidential such voted in the elec- in effect shall enact or seek to administer any voting qualification tion of gust prerequisite November 1964. On and after Au- or 6, 1970, any standard, voting, practice, procedure in addition to State or or or political respect voting subdivision of a State determined to with different from that in subject (a) 1, 1964, to subsection of this section force or effect on November or sentence, pursuant previous provi- political whenever a State or subdivision however, ly, tercepted 4,17 authorizes submis parties and the proposed change agree sion of the prohibitions to the Attor of Section 5 General,13 ney he applicable and if does not are to the electoral days change within 60 may be eff involved this case.18 ected.14 The General has con regulations

strued Section that have On November the General Court,15 Assembly upheld by Supreme been South passed Carolina Act require which adopted him to consider the submission reappor alternative govern adjudi plans the same criteria that tionment for the state’s Senate.19 request provided cation of a a declaratory plans Both for multi-member judgment.16 districts,20 required South Carolina has been in- candidates to run Georgia with to which the respect set v. United prohibitions States, 536- 1973b(a) forth in section this title based 93 S.Ct. 1702, 1708-1710, 36 L.Ed.2d 472, determinations made under the second upon 482 - 483 1973b(b) section sentence of title are 16. “Section providing in5, for submission or in effect enact seek to shall administer General as an alternative to seek- voting, or qualification prerequisite ing judgment from the declaratory U.S. Dis- voting, or standard, practice, procedure trict the District of Columbia, impos- voting different from that respect es on the what essentially force or effect on 1, 1968, November such function. Therefore, the burden of State or subdivision institute submitting proof authority the same in the United States District Court for the submitting changes in to the General Attorney judg- District of Columbia for a declaratory submitting changes be in as it would to the ment that such qualification, prerequisite, District Court for the District of Columbia. standard, or does not practice procedure The Gеneral shall base his decision have the and will not have the purpose ef- on a review of material the sub- presented denying abridging right fect or the to vote mitting relevant authority, information provid- on account of race color, or and unless and groups, ed individuals or and the results of judgment until the court enters such no per- investigation conducted the any Depart- right son shall be denied the to vote for Justice. If ment of the Attorney General failure with such comply qualification, change satisfied the submitted does not prerequisite, standard, or practice, proce- have a racially or ef- discriminatory purpose Provided, dure: That such qualification, pre- object change he will the fect, and will requisite, standard, or practice, procedure submitting so the If the notify authority. At- proceeding be enforced without such if General torney determines the submitted qualification, prerequisite, standard, change has a racially discriminatory purpose or has been practice procedure submitted by objection he will enter an effect, or and will so legal the chief officer or other appropriate submitting If the evi- authority. notify official of or such State subdivision to the change dence as to the or effect of the purpose and the Attorney General Attorney General conflicting and the General is un- оbjection has not an interposed within sixty able to resolve the conflict within the 60-day after such days submission, that nei- except he with the shall, consistent above-de- period, ther failure to scribed burden of in the Dis- proof applicable judgment nor a declaratory entered objection Court, trict enter an and so notify this section shall bar a subsequent action to submitting 28 C.F.R. 51.19 authority.” enjoin enforcement of any qualification, pre- (1974). requisite, standard, practice, procedure. 17. Fed.Reg. action under this section (1965). Any shall be heard judges and determined a court of three in 18. See Connor 421 U.S. Waller, 656, 95 accordance with the provisions section (1975); S.Ct. 2003, 44 L.Ed.2d 486 Perkins v. 2284 of Title 28 and shall lie appeal Matthews, 400 U.S. 379, 385, 91 S.Ct. 431, 435, the Supreme Court. Allen v. State Bd. Through juris- February 1975, covered Elections, 544, 555, 89 S.Ct. 817, changes dictions had submitted 4,476 proposed to the for H.R. approval. 19. A brief voting changes summary law Cong., 91st 1st Rep.No.397, Sess. 9-10 South Carolina over the four past years is in change brought one Only proposed been Rights, U.S. Comm’n on Civil 13, at to the District Court. initially U.S. Comm’n 214-219. Rights, Voting Rights on The Civil Act: Ten After Years significant 20. A number of the multi-member 14. See note had districts substantial supra. black populations. was proper of Columbia “the fo posts,21 imposed numbered and the re trict litigating them.27 primary for The court quirement elections be de rum” reapportion to draw own its by majority cided vote. Several suits declined indulged plаn in the District Court the General were filed for the ment As sembly days acceptable enjoin Carolina to enact an South operation of Act grounds 932 on the substitute.28 and, the Voting Rights violated Act it response, on well, May the General Fourteenth Fifteenth Assembly passed legisla Act 1205 —the cases were Amendments. consoli which, involved like dated, three-judge and a court was con action — forerunner, provided alternative its challenges hear they vened reapportioning the Senate. schemes presented. residency prior Act 1205 modified pending, While these actions were population feature and reduced the varia Carolina, on November South nces,29 provisions but maintained submitted Act 932 to Gen districts, for multi-member numbered approval. March eral Section 5 On majority primaries.30 vote in posts, and interposed an provision Act 1205 also included a ex contemplated. tending post requirement the numbered on basis of He stated recent existing multi-member districts of 23 he decisions court “unable federal Representatives, House other conclude, respect 932], [Act chamber South Carolina General combination of multi-member ' Assembly.31 South Carolina submitted districts, posts, majority numbered and a to the Attorney Act 1205 requirement (run-off) would not occasion May days eleven later abridgement minority voting Twiggs court held new Senate rights South Carolina.”24 reapportionment comported with consti later, Twiggs About a month requirements.32 tutional West,25 the District Court the Dis rejected 30, trict South Carolina the Fif May Attorney the On while Gener against Amendment claim considering teenth Act Act al was Caro South legislation that the but held uncon additional legislation, lina submitted Act stitutionally infringed Attorney Fourteenth the Act General.33 rights impermis Amendment because of post 1204 extended the re numbered population beyond sible variances and invalid the quirement Senate to all mul residency provisions.26 The court refused elective districts in ti-member South challenges 16, 1972, to consider based on the Vot Carolina. On June in accord Act, Rights ing recognizing procedure,34 the that the Dis ance with established 21. participate In scheme candidates pro- invited to election to was General in the ceedings. in a multi-member the Senate district must run specific for a seat. 27. Id. at 4. Appellees among plaintiffs 22. were the in one Id. at 16-17. of these suits. 29. See text and note at note 26. E.g., Chavis, Whitcomb v. text 30. See notes 20-21. L.Ed.2d 363 Graves S.Ct. Barnes, (W.D.Tex.1972), F.Supp. aff’d provision. 31. Act 932 did not contain a similar nom., part part in and rev’d in sub White v. Twiggs West, supra note 4. Regester, 412 U.S. S.Ct. suit, separate Twiggs the court had enjoined implementation pending of Act 1204 App. Attorney the General’s 5 review of that Act. West, (D.S.C. 7, 1972) (un- (D.S.C. Apr. 72-680 June 71-1106 Johnson v. Civ.No. 25. Civ.No. 14, 1972) (unreported). reported). cases cited note 18, supra. deferred the The court had Id. at 6-14. Attorney challenge pending satisfy the “If the submission does not the re- constitutional determination, Attorney 51.10(a), quirements the the Attor- C.F.R.] § [18 General’s order, Attorney filed General Attorney requested General additional to the setting posi forth his regarding information Act 1204. On a memorandum declared, 1205,” 19, he “has “Act No. he June notified South Carolina tion. received, in the information had been a clear and substantial racial effect and that complete, contravention the Fifteenth Amend submission began 60-day period protections for review ment and its under Section “Indeed,” Voting Rights run on that date.35 of the Act.”41 continued, finding a he “the reasons for On June in General of the contravention Fifteenth Amend objection an terposed to Act 1204 and to also . . . are ment 932] [Act part Act 1205 num specifying upon reviewing present 1205].”42 [Act posts bered Repres state House of Nevertheless, he was ground entatives.36 The Attorney General de deci Twiggs bow to the constrained object, however, provi clined to to the sion, General reaffirmed sions of Act 1205 applicable to Sen object. refusal to his ate. regard His notification in that stat ed he independently had concluded July On District Court issued racially Act had a discrimina order, noting second had appellants tory effect contravention of Section open “represented court that if the he but that felt defer to “constrained to Attorney General considered Act 1205 . . . determination regard to without the decision three-judge Twiggs.37 District Court” in , Judge Three District . he Court . . “It in our appropri would view not be objection an act.”43 would enter to such said, ate,” Voting he “to Rights read the The court directed the requiring or permitting Act as the Attor regard Act 1205 “consider without ney review a determination Judge the decision Three District aby made United States District Court July On Court.”44 proper exercise of statutory its interposed because jurisdiction.”38 “unable he was to conclude No. that Act August 10, 1972, appellees On filed abridg does have the effect of present litigation in the ing voting rights District Court on account of race.” challenging for the District of Columbia court, appellants General’s failure to contend In this reapportionment entering contained Senate the District Court erred in

in Act 1205. The orders.46 grant these two We hold that ed appellees’ jurisdiction motion act appellees’ court had summary judgment39 May ion,47 deci and or object dered the to make “a sion not to was reviewable case,48 decision in reasoned statutory responsibility.”40 accordance with his of this the circumstances response requires him inde- to make an ney request Kleindienst, Harper supra shall such further infor- 40. necessary submitting F.Supp. as is from mation 746. at authority submitting authority and advise the App. 89. 41. at 60-day period will not commence that the until 42. Id. by Depart- such information received Harper Kleindienst, supra 43. 51.18(a) (1974). ment of Justice.” 28 C.F.R. § F.Supp. 746. 34, supra. 35. See note 44. Id. constitutionality portion 36. The of this of Act App. 45. court, Twiggs not considered 1205 was only plan. which ruled on the Senate appeals Separate May were taken from 73-1766) (No. July (No. 73-2035) App. at 52. By appeals orders. our order the were consol- purposes. all idated for Id. II, 47. See infra. Part by appellants summary judg- 39. A motion III, denied. ment 48. See Part infra. began

pendent determination merits of to run in this case. On face, specification 5 issues.49 its is directed sole ly disapproval General’s II. JURISDICTIONAL ISSUES proposals pursuant submitted to Sec appellants’ We first address contention Nothing in the text nor in the ju the District Court was without legislative history sug section challenged risdiction to issue the orders. gests language longer this has a grounds position Two are ad Without reach. manifest distortion vanced. One is the action was not provision that, impossible say timely.50 The other is that the action simply because the Attorney General could be heard and only by determined within days must act after submis find neither of three-judge court.51 We sion, litigant opposing the arguments acceptable. these must do likewise. Aside from considerations, logical these extеn A. Timeliness of the Action appellants’ argument judi sion of is that Act 1205 was for the submitted Attor of agency cial action review must invari ney approval May General’s ably sought during period within contend that the terms of agency which the itself must act. Such Section 5 the General had to unprecedented holding signal would act upon the days submission within 60 deterioration process wholesome date,52 of that result with the that his agencies which administrative are July refusal became “final” on subjected to a measure of over premise they 11. On this further con sight. empowered Courts rectify are appellees’ complaint tend that in the Dis agency action erroneously taken Court, August trict filed on was not compel agency action erroneously withh timely. Appellees respond that the 60- eld,54 and continuing agency authority day period begin did not to run until to act independently jurisdiction is not a South Carolina’s submission was deemed prerequisite al Fairly such relief.55 complete 19,53 on June and that recently, in a petition case in which a the District jurisdiction event Court’s did of .agency review action was filed after depend upon filing not within suit time for initial agency action had period limiting the Attor expired, jurisdictional we saw no prob ney General. lem and remanded the ease for further We find it unnecessary agency proceedings.56 Moreover, de the Ad 60-day period when the cide specified by ministrative Procedure Act authorizes IV, 49. See Part infra. General. See text at notes 36-38. The agreed appellees District Court in this text infra See at notes 52-61. regard August and entered an order on 11 toll- 51. See text infra at notes 62-87. ing period. the limitation Our resolution of implicate the timeliness issue does not 12, supra. this or- 52. See note der, pass upon and we do validity. its 53. See text at note 35. Under the Attor- 54. 5 U.S.C. regulation, ney 60-day period Lines, until would not have commenced state’s 55. See CAB v. Delta Air 326-327, complete. submission was deemed C.F.R. (1974), quoted supra 51.18 § Georgia States, v. United note 411 56. In International Harvester Co. v. Ruckel- 1710-1711, 36 U.S. at shaus, U.S.App.D.C. 411, 155 478 F.2d 615 484-485, approving regulation. L.Ed.2d at this (1973), the Agency Environmental Protection Attorney Appellants assert the General’s day, acted on the last allowable id. at 420 & n. request only for additional information related petition 478 F.2d at 624 & n. and the 1204, and that therefore the submission to Act days review was filed 26 thereafter. complete May of Act 1205 was on 12. See Nevertheless, agency we remanded for further argue Appellees at notes 33-35. text proceedings, holding 60-day that an initial limi- beginning that June 19 marked the of the 60- period “obviously preclude tation does not fur- statutes, together day period both because [by agency] ther consideration following the they constituted South Carolina’s numbered by remand thе court.” Id. at 478 F.2d at by Attorney post plan treated the and were so 650.

61 General, Attorney for recon petitions and as after the well all review judicial agency57 administrators, the to decisional presented other leeway are sideration and dis would not should not obviously can be otherwise —petitions hold that the agency 60-day time initial We exist. after limita- posed specified in Section 5 is expired. applicable In the countless sit tion action sort, by action appellants’ only thesis to uations review, judicial and that judicial merely to prior review did foreclose would appellees’ lawsuit avails himself of his full render party untimely. a not because to seek relief within opportunity est invoking before his remedies agency Single-Judge Court B. Jurisdiction court. Because last sentence of Sec equally appel An basic difficulty specifies “[a]ny action under theory is that judicial review lants’ shall be heard this section and deter practical a impossibility would be were by judges,”62 a court of three mined ap Attorney General to delay his action urge, on appeal pellants for the first day upon last which he until could time,63 single judge that a was without only “final” agency act.58 Since subject action is pass jurisdiction appellees’ claims. judicial scrutiny,59 the review Relying principally statutory lan be process cannot instituted until after Supreme guage and a Court precedent, acted,60 General has and Elections,64 v. State Board of Allen ap Attorney General would in effect ac argue pellants judge, that one acting power quire make unreviewable alone, barred from deciding the is under 5. It decisions clear by appellees’ sue tendered lawsuit. For Voting that the enough Rights Act did follow, disagree. we reasons grant not General unfet in the performance tered discretion Allen, the Court addressed the ap under his duties Section ‍‌​‌​​​‌‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌‌​​​‌‌‍5.61 of Section 5’s plicability three-judge appellants contesting suits asking In sum are new us to mandate election principle allegedly by, fabricate administrative covered but laws not warp under, would the provisions law that would cleared precedent, grant conflict with The Court noted that such would 5.65 suits (1970); only 51.- are “final” § §§ 5 U.S.C. C.F.R. not 57. See will actions in a 5 review. § 51.24 61. This view has accepted by regulations Existing been 58. would not allow the Su- Court, Georgia preme States, see forego objection v. United simply su- pra General, remaining days, silent for 60 see C.F.R. see 16, supra, greater practice and is (1974), clearly discussed at but that is not 51.20 § length See below. text infra at notes Pottinger, § 5. Cf. Robinson v. 119-137. barred (5th 1975). n. 1 If Cir. such a F.2d 12; supra. See note followed, permitted and were it course is never moved in the action would become complement judges, of three for a nor day passed, the 60th see note final until suggest prior appeal they ever did infra, appellants’ the law view of single judge. heard not be case could review would frustrated. See note (1970). Nevertheless, § 28 U.S.C. 102, infra. being jurisdictional, point we deal with their U.S.C. argument. prior Agency step the last in an Supra proceeding administrative of course be plaintiffs sought enjoin The Allen review, op- purposes final for the but statutes, of state possesses clearly eration action that only if such action a sufficient de- three-judge be heard See, must court finality. g., Metropoli- if gree e. consti- FPC v. tutionally based. See 28 Co., U.S.C. 2281 (1970). tan Edison S.Ct. question arose, three-judge however, FPC, Corp. Texas be- Gas L.Ed. invalidity legislation asserted cause the U.S.App.D.C. 250 F.2d 27 It statutory rather rested than interposition appears the of an that constitutional grounds. Elections, Allen v. State Bd. of supra the notification the 62 types “may governing three the one of if authorities of a

comprised being brought the-Attorney as ‘under’ differ with viewed State be proceeded 5,”66 concerning pur and then to consider the United States § presentation change a in voting pro their or effect of pose three- whether cedures, proper.67 inappropriate it is Recognizing courts was judge have that three-judge language by single a 5’s did resolved that Section difference distriсt unequivocally question, answer The judge.”71 Court “concludefd] congres light extraordinary turned indicia of the Court nature of “Congress general, especially intent.68 Act sional has deter said, requirements 5, “that mined,” three-judge unique approval the Court of § disputes are desirable in a number intended that Congress courts of cir involv involving ing coverage confrontations 5 be cumstances be determined § 72 power federal judges.” state and or in three tween cir a district court of involving potential a for sub cumstances immediately government apparent, however, interference with It

stantial problems The the case at bar administration.”69 differs from Allen judiciary important “are especially respects. federal diffi number in a continued, cult,” Allen, plaintiffs the Court “when founded their suit provision 5’s may of state enactments person enforcement be “no on Section right be enjoined procedures and state election denied the to vote shall for fail comply a suspended because State with” new has failed ure election law approval unapproved with a federal but comply proce conformably covered 70 drafting 5,” “In that section.73 plaintiffs The § dure.” Court with Allen declared, “Congress apparently sought provision enforce that concluded en- 18, note 393 U.S. at 89 560, 562-563, S.Ct. at 68. Id. at 89 S.Ct. at 829, 830, L.Ed.2d L.Ed.2d at 14. Therefore, § 2281 was at 15. not ap three-judge and a сourt was plicable, required 69. Id. at 89 S.Ct. at 562, 830, 22 L.Ed.2d at 15 some other if so only provision mandated. Id. omitted). (footnote at 829, L.Ed.2d at 14. Id. See Swift & Co. v. Wickham, 382 U.S. 111, 127, 258, 267, S.Ct. 15 L.Ed.2d 194, 205 Id. (1965). The Court held that Allen was an ac 563, Id. at at 830, S.Ct. 22 L.Ed.2d at 16. Congress § 5, tion “under” and that intended See, same United effect, States v. Co that all such actions three-judge be heard by (5th 1972). F.2d 503 Cir. han, courts. Allen v. State Bd. of Elections, supra also on Perkins v. rely Matthews, note supra note 393 U.S. at 563, 89 S.Ct. at but that case is no different from Allen for at 16. L.Ed.2d Georgia Cf. present purposes. v. United The Court said: States, note supra U.S. at 535, 93 534 - at 1707-1708, S.Ct. 36 L.Ed.2d at 481. The involving As we have § 5, interpreted suits three-judge Court held in Perkins that a brought court the section be may in at least three jurisdiction has to hear a suit to prevent im First, course, the State ways. may insti- of election law judgment plementation covered tute a declaratory action. Second, 5 but not bring yet submitted review an individual may pur suit for declarato- injunctive thereto. judgment suant supra. claiming ry relief, that a state requirement covered by § 5, 73. Allen v. State Bd. of Elections, subjected has not been but to the required at 555, U.S. 89 S.Ct. at 18, 393 federal scrutiny. Third, Gener- Court found it unnecessary de- bring injunctive al may action to prohibit whether cide created provision new regulation the enforcement of a new because right “[hjowev- rather than a new remedy, of the State’s failure to obtain un- approval the Act is viewed, er inquiry remains All der these suits viewed as right whether remedy been cоn- being brought “under” § 5. litigant,” ferred id. at upon private 556 n. Allen v. State Bd. of Elections, 89 S.Ct. at 827 n. L.Ed.2d at 11 n. 393 U.S. at S.Ct. at L.Ed.2d at answered in 20, and the affirm- Id. at 89 S.Ct. at ative. L.Ed.2d at 67. “The issue is whether language ‘under this section’ should be interpreted authoriz- three-judge ing action in these suits.” Id. issues, pass effectuation of new on those it very election laws confers that joining upon approval authority the pursuant General,78 their pending Sec impingement no undertaking upon That unavoidably 5.74 we discern the tion underlying a coverage decision on 5’s policies three- necessitated laws, challenged portended requirement judge when the Attorney dis the processes state designed exercises authority pur ruption single judge’s to a administration.75 suant order. The its cru that, consideration is though cial deci litigation us, before on the other dictated, sion-making is the decision it hand, predicated is on statutory provi General, not —the Attorney self is generally authorizing federal sions courts compelled decide, though is left com agency to review action compel and to pletely unfettered as to how to decide. agency wrongfully withheld.76 Its conditions, those the Under Section 5 de purpose is to only performance secure Attorney General’s, termination is the duty officer of federal a allegedly im judge’s, judge’s and if the not order by federal posed duty law. That assert is a is valid determination to make an edly independent is determi Attorney General should have made in as to whether legislation nation place.79 first Carolina submitted South survives object and to of Section or test decline With the case thus analyzed accordingly. injunction No pivotal isolated, and the factors thus enforcement against laws we must take is clear. course The Su sought, nor interference with preme frequently Court has cautioned operation contemplated beyond their statutory provisions summoning follow, by would what force of three-judge federal district courts are to validly interposed objection.77 strictly construed.80 This be canon is to observed, scrupulously as else realize, course, We that any deter- where, respect to calls of that na General, mination in re- Voting Rights ture Act.81 Obedi to a sponse single-judge order demand- ently these principles, we must decline independent ing resolution, will affect apply three-judge mandate of Sec submitting state for better only to tion situations for which it worse, according to the determination intended, clearly was not but also to actually only doubtfully those within its reach.82 But we equate cannot makes. such a to a single-judge case, determination decision In the instant the District Court merits 5 issues directed the merely Attorney General by a submission. Although posed independent Sec- formulate his own dеcision a single judge power 5 denies merits of South Carolina’s Section Id. at Elections, S.Ct. at 81. See Allen v. L.Ed.2d at 12. State Bd. of 561-562, 393 U.S. at 89 S.Ct. at 829- 558-559, 89 S.Ct. at at Id. L.Ed.2d 830, 22 L.Ed.2d at 15. at 13. Appellants’ argument, accepted, if would 76. See 5 (1970); U.S.C. §§ 701-706 28 U.S.C. possibility of two create consecutive three- (1970), appellees’ all invoked in § plaint. com- (a) judge proceedings: court one to ascertain duty whether General has a 12, supra. 77. See note independently response determine his to a § 5 12, supra. 78. See submission, and, so, (b) if another to resolve questions generated by IV, submission. 79. See Part infra. already we have only To what said we need Employees 80. Gonzalez v. Automatic Credit Supreme warning Court’s add that “[c]on- Union, 90, 98, 289, 294, 419 U.S. 95 S.Ct. three-judge vening places court a burden on Allen v. State Bd. of system, court our federal often result Elections, supra 561-562, 393 U.S. at delay needing in a a matter swift initial 829-830, 15; Phillips L.Ed.2d at adjudication.” Id. at S.Ct. at States, 246, 251, v. United 61 S.Ct. 85 L.Ed. (1) pre ... statutes activity by the At extent Such submission. review; judicial (2) or impermissibly agency could not clude ac torney General dispute agency is committed to court into as to Sec tion discretion by draw 89 They argue, however, legislative coverage the state’s law.” Con tion 5’s operability intended to gress by ban review or as changes,83 any 5.84 action the To courts of under Section Gener those Attorney General’s takes under Section 5. They that the activ al also ar extent be might gue сonfrontations that Section action is committed to ity “involv[e] power”85 federal or General’s by state and discretion law. tween persuaded potential “a for substantial in are not on We either generate score. government administra terference tion,” Statutory A. Preclusion consequences no those could be Surely nothing in Section or any instance in than which greater Act, Voting Rights in ex elsewhere request Attorney General on a state’s e judicial pressly per forbids review of assigned th by function Sec executes rendered the Attorney formances sum, policies underlying 5. tion 5. under Section We have not three-judge requirement 5’s seem to, found, referred nor have we any been foreign to the District completely Court’s prohibition any such other federal the situation at bar.87 At the role Similarly, legislative history statute. best, attempted any reconciliation very is as to any the Act silent congres three-judge provision of the in this case exempt purpose to the Attorney sional congressional policy it represents activities under General’s Section from exceedingly dubious is an venture. customary judicial review. hold, then, single-judge that a Dis We endeavor, Appellants however, to sup properly resolved trict this case. Court port position their statutory preclu course, holding, of does not foreclosе Our sion reference to the structure of Sec litigation on the merits eventual approval machinery. 5’s tion declaratory In lieu of a 5 issues before a court of three judgment action in the Dis Should South Carolina judges. wish to trict Court for the District of Columbia, challenge the Attor political a state or subdivision sub registered, a declaratory has ney General proposed mit election law changes to the judgment properly action before a con preclearance.90 three-judge vened District Court grant From that of this alternative and is District Columbia still available.88 statutory limit days the Attorney of 60 for the III. REVIEWABILITY response General’s to the subm Appellants ission,91 next contend that At- appellants assert that Congress torney General’s activities under Section has manifested a desire to avoid de legally erroneous, even when are im- to lay proceedings incidental court, judicial mune from review. and that an intention interdict recognize, they must, agen- that final review the General’s action cy action is “except reviewable accordingly must be inferred^ id. See at 558-559, 89 S.Ct. at 828, 22 district “[t]he dained courts shall have original jurisdiction of any action in the nature of mandamus officer compel em- 84. See id. agency of the United States or any ployee id. at See S.Ct. at 22 L.Ed.2d at a duty thereof owed to the perform plain- litigation tiff.” 28 U.S.C. This 86. Seе id. instituted prosecuted just that. do 87. congressional concern so conspicuous when a federal court judg- asked to supra. See pass on a ment state’s election laws normally 701(a) id. U.S.C. See § 702. lacking when court’s is invoked ‍‌​‌​​​‌‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌‌​​​‌‌‍authority supra. to review the action of a federal officer or agency. Congress 91. See note Indeed, or- broadly supra. proceedings as authorized for too ment argument asks Sec- believe We features of Sec tion The structural much. appellants rely were which upon We cannot extrapolate from this mor congressional purpose of a products end legislative history a purpose sel delay necessitated entirely unrelated judicial review of the foreclose eventuating The bill review. pursuant activities Voting Rights origi Act did not as nally that his review all of a large 5. For for a submission to the At provide submissions expectably volume could to a alternative torney General Congress still accomplish, assigned the judgment During action.92 declaratory large important a and judiciary role in Judiciary hearings before Senate questions. of Section 5 resolution A Committee, questions response in to political subdivision may state forego actions, of such Attor the burdens about simpler speedier and mechanism of Katzenbach noted that ney General review General and changes law within the election many of the opportunity itself avail of full- 5 would be noncon of Section purview litigation position of its scale atory in a declar nondiscriminatory.93 On troversial judgment action in the District basis, suggested review he for District of Court may Columbia.96 It optional as an route to Attorney General to the declaratory resort judgment technique a calculat approval, 5 Section incurring even after the Attorney adequately large in a number to serve ed disapproval following General’s a sub Congress apparently ac instances.94 to him.97 In case, mission either in 5 it suggestion, for Section cepted may subjected decision be court’s to re as the means to option extended possible revision in view the Su many full-fledged' cases of a in avoidance Court.98 preme necessary.95 otherwise Election lawsuit So, provision while changes demonstrably free from dis Section “[t]he [of law to the Attorney purpose submission criminatory and effect thus for Gener 5] al rapid gives covered State a through the Attor . . precleared could General, rendering method new while others remain state would ney enforceable,”99 law it unless and until subse election does not unenforceable Congress was unwilling approved declaratory judg- in follow quently Sess., 2, No.162, pt. Cong., (S. 1564) 30, 89th 1st original reproduced at bill is 92. The at 1965, Cong. p. (1965). Admin.News & Cong.Rec. U.S.Code 5403-5404 Section 2437 5 of 111 (individual (1965) views of corresponds Eastland, Senators present form 8 of the Act Ervin); Cong.Rec. 111 8294, McClellan as introduced. S. 8305, only explanation (1965). The is the Hearings on S. 1564 Before the Senate testimony General Katzenbach. Judiciary, Cong., 89th 1st Committee may 93-94. at notes We See text as- 1, Sess., Indeed, pt. through at 237 explanation logical this accurately sume 28, 1975, February Attorneys the several Gen- congressional portrays Chicago intent. & passage office since of the Act have eral Transp. Union, Ry. v. United N.W. only 4,476 proposed objected 163 of the 1731, 1735, 570, 91 S.Ct. 29 L.Ed.2d changes pursuant law submitted election 187, (1971); United Henning, States v. H.R.Rep.No.196, Cong., Sess., 94th 1st 5.§ 14, 114, n. 73 S.Ct. U.S. n. objections lodged a list of all For 9-10 106 n. 14 United L.Ed. States v. 20, 1974, through December see U.S. Comm’n Ass’ns, Trucking American U.S. 547- Rights, supra note at 402-409. on Civil 1059, 1066, L.Ed. Hearings on S. at 237. inserting provision The rationale 12, supra. 96. See note reports or in the committee mentioned 12, supra. 97. See note debates, perhaps major because the controver- 12, supra. 98. See note provision surrounding 5 involved sies jurisdiction the District exclusive Elections, v. State 99. Allen Bd. of supra note general and the of Columbia no- the District U.S. S.Ct. at suspension prospective of election law tion of See, g., S.Rep. changes pending approval. e. judicial explicitly delay judicial incidental exam- would have foreclosed indulge leading review if that is what it criteria desired to do.103 ination Indeed, 4(b) particular expressly cases to of the Act decide not change judicial covered review precludes of administra Many politi tive determinations that a state or innocuous submitted subject provi cal subdivision to the achieve section.104 Thus preclearance sions of that in at least at the expeditious hand, the one instance where we resulting without know contro- Con General’s review, goal gress his decision. intended bar versy over That is not precisely to legislated fact other effect. On embarrassed hand, reiterate, we germinating Congress other changes, questions difficult prohibition indicated may necessitate addi- has nowhere scrutiny. review tional actions under Section 5.105 Section 5 envisions situations of each procedures and erects type, to accommo Voting Rights “implemented The Act both.100 The Attorney them Gener date Congress’ firm intention to rid the coun implementing regulations al’s likewise try voting.” of racial discrimination delay complex by speci cases tolerate guarantees was “drafted to make It 60-day period that fying for con Fifteenth finally Amendment of a sidering the submission does not com reality citizens.” “Congress for all re receipt any until of mence additional in existing that remedies alized were inade req formation accomplish quate purpose to and Moreover, delay consequent to uest.101 unusual, and in aspects drafted an some legal correction of judicial error severe, procedure for insuring a that disposition of a submission does not im would not discriminate on the ba States operation the overall pede of Section 5. of race in the enforcement sis of their contrary, judicial On clarification of voting laws.”108 We have seen that requirements step is a its well calculated Congress upon conferred the states and its effective application.102 enhance political pro their subdivisions the full Perhaps singularly, appellants judicial process offer no tection in their response suggestion Congress efforts to clear new election law changes See note 12, supra. in this case the event, any Attorney General his decision not communicated and (1974), 101. 28 C.F.R. § 51.18 quoted supra stated his and we reasons, must measure note of his action validity explanation he urge also § 5 does not re- gave. SEC v. Chenery Corp., 80, 92, a when the quire response Attorney General (1943); 454, 461, 63 S.Ct. 87 L.Ed. 626, 635 objection. determines not an interpose FCC, Garrett U.S.App.D.C. 266, 270, Pottinger, note Cf. Robinson supra. su- 513 F.2d 512 F.2d at 776 n. 1. pra Therefore, 103. Cf. Davies Warehouse Co. v. Bowles, 321 argue, South Carolina they would have com- 474, 481, U.S. L.Ed. 635, with 5§ if the plied Attorney General had March v. United States, 165 U.S. judicial remained silent for 60 dаys, re- 267, 276-277, 506 F.2d 1306, 1315- App.D.C. view would not have been available. This ar- gument long is wide of the mark as as the regulations, 1973b(b) (1970), General’s which U.S.C. quoted are binding on him, require note 11. response. 28 C.F.R. (1974), § 51.19 quoted supra note 16. See also preceding 105. See text note 90. illogical infra. It would be totally 106. Allen v. State Bd. of Elections, supra note agency hold that noncompliance estab- 393 U.S. at S.Ct. at lished deadlines is irremediable in view of stat- agency utory authority action compel has been unlawfully withheld. 5 U.S.C. § 706 at 556, Id. 89 S.Ct. at L.Ed.2d at Furthermore, even without compul- sion of a silence would response, become final Id. agency action after 60 days, we perceive holding no reason silence unreviewable. curs, plain legislative consequence is a operation. cannot assume that We Supreme Court has declared intent. concretizing right bent on legislature “judicial agency review of a final intended a lesser solicitude to vote aggrieved person will designed Act was those whom the wards rea persuasive cut unless there is off by changes affected Voters to benefit. purpose to believe that such was the son judi 5 can insist on covered Congress”113 “only upon from relief enforcement those cial showing evi convincing of ‘clear and approved pur until are they contrary legislative of a intent dence’ They may to Section 5.109 also suant judi should thе courts restrict access to declaratory judg positions voice their has showing by5 No such actions under the sim cial review.”114 ment text intervening those ease. Neither ple expedient been made in this Voting however, Unless, history they legislative proceedings.110 nor pur Rights congressional reflects a judicial review of the Attor Act may obtain methodology on review of pose proscribe Section 5 ney General’s submission, protection activities under Sec the bond of is in suggestion any is no 5. There complete. Should legislation object, proposed change federal does so. We not to other decide appellees challenging are not operation immediately,111with goes into findings by the is General on opportunity out consider positions fact, of voter on the Section 5 ation or an ultimate decision as sues is, appellants say, True questions. submitting authority whether latter event voters can resort lack of discharged proving of its burden grounded on purpose- to traditional suits thé Fif effect.115 discriminatory or “But,” as Rather, simply, Amendment. and teenth Su appellees contend observed, Court has “it preme held only, Court the District just inadequacy of these suits secur relin Attorney improperly General right prompted ing the to vote that Con responsibility independent his quished 112 gress pass Voting Rights Act.” legislation in ly evaluate the submitted light by of thе standards Sec established Statutory preclusion judicial of review holding action, tion 5.116 find no of administrative whenever We basis for it oc- 560, 829, 687, quoting H.R.Rep.No.1980, 22 Id. at 89 at L.Ed.2d at L.Ed.2d 79th S.Ct. at Cort, (1946). Cong., v. 2d Sess. 41 See Rusk 379-380, 787, 794, 367, 7 82 369 U.S. S.Ct. City States, of v. United 110. See Richmond 809, Barber, (1962); L.Ed.2d 817 Heikkila 1344, (D.D.C.1974), F.Supp. 1349 n. 23 va- 376 232, 603, 604-605, 229, 97 73 S.Ct. 345 U.S. 358, remanded, and 422 U.S. 95 S.Ct. cated 972, (1953). L.Ed. 976 2296, (1975); 44 Beer v. L.Ed.2d United 245 11, States, F.Supp. 5; express opinion reviewability at note 374 367 n. 115. We no of States, City Petersburg object allegedly of v. United 354 involv- not a determination ing 1021, aff’d, (D.D.C. 1972), F.Supp. application purpose- 1024 410 an erroneous of 5’s§ 1441, note, 962, however, L.Ed.2d 698 93 S.Ct. 35 that or- U.S. effect We standard. judicial of a to inter- thodox review decision 12, supra. See note objection presents questions. pose an different Elections, supra Allen v. State Bd. of Congress It be that intended to confine 21, 21, 18, 556 at 827 U.S. at n. 89 S.Ct. n. 393 declaratory to the a decision review of such at 12 22 L.Ed.2d n. 21. specified judgment See Allen v. action Elections, supra Gardner, 393 U.S. 113. Abbott State Bd. Laboratories v. 387 U.S. 1507, 1511, 15; 22 87 S.Ct. at Unit- at 89 S.Ct. L.Ed.2d at Wilson, Orgs. Collins, Williamsburgh Barlow v. ed Jewish (2d 1974). 166-167, Cir. 90 S.Ct. 510 F.2d (1970); Kyne, L.Ed.2d 199-200 Leedom v. Appellees appellants’ concede that con- 184, 190, 180, 185, 79 S.Ct. 358 U.S. 210, L.Ed.2d might delay force if have more cerns about Shung, v. Tom We Brownell raised in the context review of a determina- 180, 185, 252, 256, 1 U.S. 77 S.Ct. 352 225, Attorney General on the merits of delay Appellants’ complaint due § issues. unpersuasive Gardner, judicial is review nevertheless Abbott Laboratories v. expressly re- in such cases. Section 5 387 U.S. at even Court District District review in thеse circumstanc U.S. judicial Columbia, imposes Gen statutorily precluded.117 es is judicial is essentially what func eral reason, regulation For this tion.” B. Administrative Discretion states, on the sub proof burden of “the that even also contend mitting authority in submit the same precluded review is if normal not changes to the General as ting congressional reason of case submitting changes it would be intent, foreclosed because it is Section 5 for the District of Colum General is “com 123 “If,” regulation pro further bia.” agency discretion law.”118 mitted vides, satisfied “the position- untenable. We find change does have the submitted not exemption sort of that statutory ac purpose discriminatory or ef racially very is “a review nar tion from change fect, not he will exception,” “applica one which is row notify submitting authority. will so rare in those instances where ‘stat ble Attorney General determines If the are drawn in such broad terms that utes change racially has dis the submitted case there is no law to given in a purpose effect, en criminatory or he will ” 120 That is not the sit apply.’ certainly objection notify and will so ter an here. uation submitting authority.” And “[i]f sure, To be express 5 does evidence as the purpose or effect of procedures ly the standards define change is conflicting, and the Attor is to utilize in ney General is unable to resolve the con discharging responsibilities his towаrd flict the 60-day shall, within period, he But state submissions. consistent with the above-described bur promulgated regulations den proof applicable in the District standards, prescribing as well proce Court, enter an notify so dures, by which law election submitting authority.” to him approval submitted can be objectively accurately provisions evaluated.121 These leave no room regulation argument such One declares that that Attorney “Sec Gener providing tion in al’s 5 submission to the Section function is “committed agency General as an discretion”126 alternative because “there is 127 seeking apply.” a declaratory judgment no law to They from the establish the right bring excluding grounded “traditional” serves actions as remedies in statutes regardless challenging law § election than other proceedings. 5 See note § the result of 118. 5 701(a)(2) (1970). U.S.C. See also text clear It is supra. beyond peradventure at note 89. supra significant such actions could result delays Citizens Preserve Overton Park of the new laws. in the operation 401 U.S. 402, Volpe, 410, 91 S.Ct. 814, 821, 28 (1971). 150 117. Appellants maintain that Allen v. State Bd. of Elections, supra note 18, indicates quoting Id., Cong., 79th S.Rep.No.752, 1st has taken Supreme a contrary position. Sess. 26 Adams v. Richardson, cite the Court’s They statement that “[o]nce 156 U.S.App.D.C. 480 F.2d the State has successfully complied with the 1162 5§ approval requirements, private parties may §§ 28 C.F.R. 51.1 et seq. enjoin the enforcement of the new enactment 122. (1974), 51.19 C.F.R. quoted attacking supra in traditional suits only its constitu- note 16. is there no tionality; further remedy provided 5.” Id. at by § 549-550, 89 S.Ct. at Id. L.Ed.2d at 8. That statement is a merely ref- Id. erence to the express provisions of § 5, and Id. catalog was not obviously intended as a of all possible remedies involving disputes al- 126. See text at note 89. legedly suffrage discriminatory laws. It is pat- 127. See text note 120. ently unreasonable this interpret sentence adju the same manner court must sions in Attorney General rule declaratory appli judgment actions. dicates 5 submission on a Section pass in the one instance than it No less standard —whether same cation nondiscretionary, is the function effect129 other discriminatory purpose has judicial proper reviewable in a fo declaratory 5 for —prescribed Section aeg rum. brought its judgment actions the At the determination Thus is.130 IV. DEFERENCE TO LOCAL makes on Section sub torney General DECISIONS COURT adjudication in the tradi is an missions Appellants lastly contend At legal application of sense—the tional torney properly performed General his specific factual situation. to a principles duty by concluding Section 5 in this case is barring judicial review the sense no should defer to the holding that he discretionary. function Twiggs v. West138 that Act does evident, then, that It is not violate the Fifteenth Amendment. interprets Sec himself assert, premise imрosition of nondiscre tion substantive standards set As his office. he tionary function 5 and the Fifteenth Amendment are activity under his characterizes 5, himself identical, interposition objec of an “what is essen performs he tion would be tantamount to the overrul as the And tially a function.” ing of a final They decision.139 noted, Court has Supreme Supreme also assert that a Court deci as5 not read Section precludes sion in the situa pro discretion as to “unfettered grant of tion here.140 these We discuss conten standards, cedures, and administration in appellants’ and also tions conclude that area,” a call “to but as sensitive position fundamentally is inconsistent objective ground publish formulate clearly expressed congressional in has sustained the The Court rules.” underlying tent Section 5.141 General’s validity of substantive and important the same An adoption of difference be that Sec burden-of-proof134 standards tween Fifteenth Amendment and Sec act declaratory judgment litigations alleged over voting tion ions,135 sets dis regu is the allocation of and the crimination the bur plaintiff proof. challenges him136to those standards den of A who lation binds net re law on Fifteenth determinations.137 state Amendment carry is grounds must burden of dem sult onstrating 5 submis that the law obliged adjudicate Section unconstitution- bring challenge every The parties 128. General is bound his own ed suit Seaton, 535, regulations. voting subject practice, Vitarelli U.S. changed v. 359 States 5 968, 972, 539, 1012, required prior 79 3 S.Ct. L.Ed.2d 1016- obtain clearance were before Dulles, 363, (1959); proposed changes put 1017 Service v. 354 U.S. could into effect. 388, 1152, 1165, 1403, proof seeking 77 1 S.Ct. L.Ed.2d 1418 of The is ‘the areas burden ” (1957); Regulatory Comm’n, States, Georgia supra v. Nuclear Nader v. United note relief.’ 261, 1045, 255, 9, U.S.App.D.C. 15, 9, F.2d 168 513 93 U.S. at 538 n. S.Ct. at 411 1709 n. (1975). 9, quoting 1051 36 at 483 n. South Carolina L.Ed.2d Katzenbach, 335, supra 11, note v. 383 U.S. at 12, supra. See 129. note 822, 86 15 L.Ed.2d at at 791. S.Ct. supra 12. 130. See text at note 12, supra. note 135. See supra 131. See text 122. at note 128, supra. 136. note See States, Georgia supra 15, 132. v. United note supra note 137. See text at 130. 536, 1708, 411 U.S. at 93 S.Ct. at 36 L.Ed.2d at Supra 138. note 4. 482. 139. See text infra at notes 142-159. Id- 140. See text infra at notes 160-166. very 134. “The effect of 5 shift § was to respect proof burden of with racial discrimi- text at notes See infra 167-168. voting. requiring nation in than Rather affect- 70 voting procedures proscribes ment re Twiggs court Accordingly, al.142 discriminatory pur racially either in are claim Amendment the Fifteenth

jected clearly That or effect.146 pose reason the stated Act 1205 for against but 5,147 standard constructed indicating its unconstitu evidence in its current state leaves the case law contrast, In lacking.143 tionality was a Fifteenth whether Amend uncertain proceedings 5 proof of burden racially challenge solely based on a ment political subdivision state or effect, discriminatory distinguished voting change.144 seeking aрproval of purpose, be successfully can main from not conclude —in court did Twiggs Supreme Court decisions invali tained. presented145 question was not deed the dating voting practices as violative carried have could —-that Carolina South Amendment have uniform the Fifteenth proof imposed the burden upon racially evidence of dis ly relied criminatory motivation.148 Numerous regarded have encounter cases fur other determina problem involving with and effect as purpose ther connection their tions of We need questions.149 contention not enter Fifteenth Amend- distinct Regester, 412 v. United 422 142. White v. U.S. Richmond 755, 765-766, City States, (1975); 37 U.S. 314, 358, 2296, L.Ed.2d 324 95 45 L.Ed.2d 245 2332, 2339, 93 S.Ct. S.Ct. (1973); Chavis, Whitcomb v. note U.S. Chavis, 23, Whitcomb v. note 403 23, supra supra 91 S.Ct. at 29 29 149-150, 1872, 149, 1872, 379; U.S. at at 91 S.Ct. at L.Ed.2d at 403 School Bd., 218, L.Ed.2d at v. 114 Griffin v. 377 U.S. Ramsey, County 370-380; Murphy 1226, 1233, 29 12 L.Ed.2d 265 37-38, 747, 760, 231, 256, U.S. 5 L.Ed. 84 S.Ct. 15, 47, S.Ct. (1964); Legislative (1885); 55 Bradas ‍‌​‌​​​‌‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌‌​​​‌‌‍v. Police Administrative Rapides Ely, 508 Jury, (5th 1975). Georgia 79 L.J. 1109, Law, F.2d 1112 Cir. Motivation in Constitutional Yale (1970). But see note 411 1268 Palmer v. States, 15, 1205, Thomp- v. United U.S. at supra 225, 1945, U.S. 91 S.Ct. 29 9, son, 217, 1940, 538 n. 93 n. 36 L.Ed.2d at 403 9, S.Ct. at 1709 (1971); United v. 438, n. 9. L.Ed.2d 445 States 483 O’Brien, 367, 384-385, 1673, 88 S.Ct. Twiggs v. West, note supra 25, 672, 684-685 1683, Georgia States, v. note 15, United supra 147. See note 12, supra. at 1709, 411 at 93 S.Ct. 36 L.Ed.2d at 538, U.S. South Carolina v. 483; Katzenbach, note supra 148. The Court has noted that some Fifteenth S.Ct. at 335, 822, U.S. at 86 15 11, 383 L.Ed.2d litigation Amendment involved “tests States, at 791; Beer v. United note supra designed which are specifically Petersburg 392-393; 374 at v. City F.Supp. Negroes voting,” prevent from South Carolina States, 354 United at supra F.Supp. Katzenbach, supra 11, 383 U.S. at See also 16, supra. 1027. See note H.R.Rep. S.Ct. at 15 L.Ed.2d at (emphasis (1969); Cong., Sess. 8 Nо.397, 91st 1st H.R. added), and that other cases “demonstrateO Cong., 1st 94th Sess. Rep.No.196, the variety and persistence these and simi- designed lar institutions Negroes note 27. See text at deprive right to vote.” Id. at 311, 86 S.Ct. See note supra. support (emphasis added). 15 L.Ed.2d at 777 See, e. Lightfoot, cite Gomillion v. position appellants g., Lightfoot, Gomillion v. U.S. S.Ct. U.S. at 81 S.Ct. at L.Ed.2d at In that the Court case, invalidated 116; Terry Adams, 345 U.S. 461, 463-464, that was infected with a reapportionment dis- (1953); 809, 811, L.Ed. 1152, 1157 motive. The criminatory Court said that “the Lane v. U.S. Wilson, 275, 59 S.Ct. legislation is segregating concerned solely 872, 876, 83 L.Ed. Guinn v. fencing white and Negro colored voters by citi- United States, U.S. 347, 361, 35 S.Ct. zens out of town so as them deprive of their (1915). Although 930, 59 L.Ed. 1346 1340, pre-existing vote.” Id. at municipal 341, 81 some statements in reference to Section 5 indi- S.Ct. at at 113. 127, L.Ed.2d The Court also cate that the statutory and constitutional stan- on the lack relied of an apparent alternative dards are see identical, South Carolina v. Kat- motive, id. at at 342, 127, 81 S.Ct. 5 L.Ed.2d at zenbach, supra 11, note 383 U.S. at 334-335, legislature 113; noted that the state had “sin- 86 S.Ct. at 15 L.Ed.2d at the gle[d] segment out a isolated readily of a racial context of these remarks leaves unclear minority special discriminatory treatment,” whether the Court intended on the pass id. at 116; S.Ct. at L.Ed.2d at argument. question presented by appellants’ and found that the was reapportionment used 149. In of City Richmond v. circumvent the United su- States, Fifteenth Amendment, id. at note the Court first ef- pra at discussed the S.Ct. at 117. See any Attornеy could the important the considera- General which the debate in this question defer case.152 thought the on event our not tion is when Twiggs court the of view but the de- its Fifteenth Amendment it rendered today consistent result we The reach is that an point we make The Depart cision. the position taken the with Attorney under by the General objection litigation. Justice in In of other ment necessarily in conflict is not States,153 v. the City of Richmond United on judicial determination prior with a dis filed memorandum154 Department constitutionality. un decision tinguishing a Fourth Circuit Twiggs from ad the Fifteenth Amendment opinion The rendered the der consideration, proceedings reflect under Section not ministrative court does of reason for the distinc purpose Fifteenth 5.155 The asserted the Amendment claims, possible the difference in burden of discriminatory of the ef was proof.156 Department 1205. The The not take holding of Act based did fect was of position “evidence the the constitutional on absence the identical,157 by statutory ever been motived standards but were South Carolina contrast, asserted that Fourth Circuit considerations.”150 instead the racial Attorney General’s independent binding as was not on the the decision regardless similarity of of Act 1205 was based on his of the sessment General concluding legislation.151 of the Significantly, the effect standards. of view paragraph of opin that his thе Fourth constrained conclude Circuit’s We are 158stated that “reflects regarded Act 1205 cannot be ion the decision decision, appropriateness “overruling” Twiggs opinion and no as judicial Gener inappropriateness was no decision on there objection.” aspect of the Section 5 issues al’s “effect” annexation, Supra proposed id. 95 S.Ct. at note 110. 153. feet of the 2302, turned to then an examination Law, Defendants’ filed 154. Memorandum city’s purpose, v. id. at See Beer United July portion The of this relevant 367; City States, F.Supp. supra note at responded inquiry by memorandum to an States, Petersburg supra v. United note prior to whether decision court as Holt F.Supp. at Richmond, (4th Cir.), City F.2d 1093 v. denied, U.S. cert. West, supra Twiggs at 18. v. binding parties (1972), was supra at note 42. estoppel. 151. See text principles collateral States, supra City of Richmond v. United See emphasize that we do not undertake 152. We 146, 95 S.Ct. at 2305 n.6. a Fifteenth Amendment to decide whether concerning may present challenge an issue objec- interposed an The discriminatory allegedly solely effect of proposed of an area annexation tion to supra legislation. 146-149. text at notes large containing a number of white voters. merely some to note that there is intend subsequently We uncertainty held that Fourth Circuit regard, have which in this did violate the Fifteenth annexation Amendment deсision Richmond, Fifteenth City supra influenced the Holt v. Amendment. Twiggs, there no de- case, and that Twiggs In the instant deci- note 154. Twiggs regarding effect of termination preceded the General’s determi- sion purposes. Fifteenth Amendment nation, 1205 for position Act the basic taken but were, if there the difference But even Department in Richmond is nevertheless rele- remains, supra proof see text burden of vant. alone, 142-145, and for this reason notes Attorney text at notes 142-145. 156. See uncritical reliance supra at note 146. See text highly Beyond Twiggs dubious. decision considerations, the extreme deference opinion these We note that the author of this Twiggs gave is itself West, Twiggs that the presiding judge in was the congressional intent dis- inconsistent supra note 25. See text infra at notes 167-168. below. cussed Richmond, City 159. Holt doubt, however, that the no We have 459 F.2d weight may properly accord some similar in which identical or decisions adjudicated. are issues 72 distinguishable the issues from is that on argument decision

Appellants’ final Ap presented under Section 5.165 decision Connor those Supreme Court’s effect that consti saying in pellants are the Johnson160 bars an election law approval of an in this tutional change interposing from court, federal if rendered by a Appellants say that the “lesson” case. speed, could sufficient obviate protections is that the afford with of Connor light of approval. 5 sufficiently need Section by 5 are honored ed Section congressional determination that of a Fifteenth by judicial consideration are in there constitutional remedies challenge, available Amendment adequate, and that thus enactment of should not ob fore necessitated,166 we cannot approved 5 was ject changes law election Section stamp approval of on re way, as their place court. In this a federal goes, both the federal courts sult. argument fully and the Finally, undeviating deference without invad responsibilities meet their Attorney General conflicts directly with other, and

ing jurisdiction congressional objective in vesting ex Voting effectuating while still jurisdiction of clusive actions under Sec Rights Act. tion 5 Court District for the Dis Congress of Columbia.167 trict intended reap Court held The Connor Section 5 standard applied portionment plan formulated a feder uniformly to states, covered and to ac legislative body, than a court,161 rather al end complish this directed that litiga all 5.162 scope within the is not place Section 5 take suffrage plainly applies only 5 District Columbia.168 To the extent proposed political “a or State General accords con subdivision,”163 so the held Court weight to clusive local court determina decree of the United States “[a] tions, congressional goal of decisional is not within the reach of Section uniformity may be frustrated. 164 support provides But no 5.” Connor Appellants profess complete def Attorney General’s concern for the in- terposition objection, anof to a in the instant case where a erence court challenged legislation. 402 91 268 1760, fully prior U.S. S.Ct. H.R.Rep.No. Cong., (1971). (1965), 1st 439, 89th Sess. U.S.Code Cong. Cong. & Admin.News 2437; 111 p. Twiggs The court did approve reappor (1965) (remarks Hart). 8303 Rec. of Senator tionment delineated in Act but plan Cong., See 94th H.R.Rep.No. 1st Sess. 8 did not make initial determinations inci Cong.Rec. reapportioning State dental Senate. See 165. The in Zimmer v. panel opinion McKeith- supra following Compare text note 27. Con (5th 1972), F.2d 1381 Cir. en, 467 rev’d on supra nor v. Johnson, 402 U.S. at (en grounds, 1973), 485 F.2d banc other S.Ct. at 29 L.Ed.2d at 270. no aid to appellants. offers there panel 162. Meier, U.S. Chapman legis- “noted that this not a case in which a 95 S.Ct. 751, 761-762, 779-780 lature, commission to re- board, attempted supra (1975); Georgia v. United States, In such a case, itself. apportion at 535 n. 1708 n. 6, Id. clearly applies.” 36 L.Ed.2d at 481 n. 6. supra See text at note 112. 163. See note 12, supra. City Richmond v. United States, 164. Connor v. Johnson, note 160, 402 (Brennan, 146, 95 S.Ct. at 2309 n.7 J., U.S. at 691, 91 S.Ct. at 1762, 29 L.Ed.2d at supra. dissenting). See note majority 270. The of the Court did not ex- Cong.Rec. 8839, 10355, 15663 pressly rely federalism or theory Cong.Rec. See 115 An amend suggestion comity, contrary to appellants’ jurisdiction to vest ment local courts federal here. The Court’s decision is consist- entirely Cong.Rec. defeated in soundly Congress ent with the purpose put (1965), again Cong. year, end to the frustration vot- review in (daily 1975). Rec. H. ing rights ed. June 4, cases fostered by repeated enact- litigation ment of new laws after had success- Attorney that if the declared an election law contend Gen- previously would whatsoever, no action took as is with the change to be consistent Fif eral clearly statute, the Amendment, by authorized that destroy the might teenth subject judicial could be to re- “cooperation” judicial inaction between present the under APA. It is to hard in admin view administrative authorities and clearer imagine a instance of a matter istering only Section 5. We need re agency by to discretion law.” “committed simply this view not a real spond 701(a)(2) (1970). I Attorney 5 U.S.C. doubt assessment Gener istic greater power judicial of any review ex- responsibility, it nor is like al’s simply Attorney because the ists General prediction be an accurate of ly to the reason, give to an in has chosen a albeit attitude such circumstances.169 judicial one, for his refusal inter- challenges constitutional erroneous Because objection. an The fact that he has proceedings pose not necessarily do issues, objection adopted regulations requiring him to act the same an рresent affirmatively negatively or previously on each sub- held provision constitutional a using set not inexorably standards should a contradiction of the mission is not judicial powers to confer of operate additional resolution. prior beyond what is indicated judicial review stated, the reasons ap- the orders For language the section from are in all respects pealed designates proper the itself Affirmed. obtaining judicial review in method by providing that “the Attor- this case Judge (dissent- Circuit MacKINNON, failure to . ney General’s ing): a subsequent bar action to shall [not] agreement enjoin qualifi- I am in conclusion enforcement such with the cation, three-judge standard, court would not be prerequisite, practice, a Voting I recognize majori- 5 of by procedure.” section required (1970), Act, U.S.C. 1973c concern that so-called Rights ty’s “tradition- review under Adminis- Fifteenth Amendment actions action for al” an procedures Act not be the most effective means Procedure of safe- trative Attorney guarding voting rights. However, since followed withholding objection simply a new statutes sub- section created method preventing discriminatory voting I re- agree under section 5. also mitted disturbing General was not without “tradi- strictions to the prior procedures, to defer decision tional” is not unreasonable obliged it three-judge district court in South remit Congress to bеlieve would but challenging voting could instead make an inde- laws parties Carolina discriminatory preexisting appropriate assessment remedies cir- pendent However, Congress is- chose to repose Act 1205. these cumstances. effect large are irrelevant it is first of trust unless de- measure sues performance General’s de- of his duties un- termined objection legislation Congress, It is withhold section 5. not cision der subject courts, under section 5 is to determine if that submitted trust misplaced scrutiny review. under Attorney General’s actions section af- provides statute Section 5 necessary. 5 is now voting rights may be enforced if fecting view, majority exposing my has been submitted large General “has potentially and the to a influx of courts interposed sixty within seeking of refusals cases review . days interpose objections after such submission . . .” mind, authorizes language compli- If the issue of my section To inaction. Surely regulation no procedural one is sub- approval ance with text despite APA ject to review little seem to be 5, there would section ‍‌​‌​​​‌‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌‌​​​‌‌‍seek- complaint distinguishing basis for Attorney Gener- review

ing APA reg- his substantive compliance al’s on whether his decision guiding ulations majority objection. The interpose developing step to the first taken ul- which could review means “subsequent supplant the timately Congress which enforcement” enjoin 5. To in section carefully preserved so extent, I thus dissent. of America

UNITED STATES SMITH, Appellant. D.

Louis

No. 75-1016. Appeals,

United States Court District of Columbia Circuit.

Argued May Aug.

Decided notes 37. See 11, supra. 7, supra. See note note 38. See 4, supra. See 8 C.F.R. 3.2 25, supra. 39. See Supra

Case Details

Case Name: John Roy Harper, II v. Edward H. Levi, Attorney General of the United States, (Two Cases)

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 24, 1975

Citation: 520 F.2d 53

Docket Number: 73-1766, 73-2035

Court Abbreviation: D.C. Cir.