Syllabus

MORRIS ET AL. v. GRESSETTE, PRESIDENT PRO TEM, SOUTH CAROLINA SENATE, et al.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

No. 75-1583. Argued April 18-19, 1977-Decided June 20, 1977

Section 5 of the Voting Rights Act of 1965 establishes two alternative methods by which States subject to the Act can obtain federal preclearance review of a change in their voting laws: (1) the State may file a declaratory judgment action in the District Court for the District of Columbia and subsequently may implement such change if that court declares that the change has no racially discriminatory purpose or effect; or (2) the State may submit the change to the Attorney General and subsequently may enforce the change if the Attorney General has not interposed an objection within 60 days. A plan reapportioning the South Carolina Senate, enacted into law on May 6, 1972, and filed with the District Court for the District of South Carolina, which had invalidated a previous plan in a consolidated action challenging its constitutionality, was submitted to the Attorney General on May 12 for preclearance review under § 5. On May 23 the District Court found the new plan constitutional, and on June 30 the Attorney General notified South Carolina that he would interpose no objection but would defer to the court's determination. Thereafter, another suit was brought in the District Court for the District of Columbia, challenging the Attorney General's failure to object to the new plan, and in response to that court's order of May 16, 1973, to make a reasoned determination as to the constitutionality of the new plan, the Attorney General stated that in his view it was unconstitutional but that he still refused to interpose an objection in deference to the ruling of the District Court for the District of South Carolina. However, on July 19, 1973, the District Court for the District of Columbia directed the Attorney General to consider the new plan without regard to the other District Court's decision, and the next day the Attorney General interposed an objection to the plan. The Court of Appeals for the District of Columbia Circuit affirmed, holding that the Attorney General's initial failure to interpose an objection was reviewable and that §5 required him to make an independent determination on the merits of the § 5 issues. The present suit was then filed by appellant South Carolina voters in the District Court for the District of South Carolina, seeking to enjoin implementa

tion of the new plan on the ground that the Attorney General had interposed an objection and the State had not subsequently obtained a favorable declaratory judgment from the District Court for the District of Columbia. A three-judge court dismissed the complaint, holding that the collateral-estoppel doctrine did not preclude it from considering the State's contention that, notwithstanding the Court of Appeals' decision in the previous action, the requirements of § 5 were satisfied when the Attorney General failed to interpose an objection within 60 days after submission of the new plan to him, and that the Administrative Procedure Act did not authorize judicial review of the Attorney General's initial determination to defer to the ruling that the new plan was constitutional, and that therefore the Attorney General's failure to interpose a timely objection left South Carolina free to implement the new plan. Held: The objection interposed by the Attorney General to the new plan on July 20, 1973, nunc pro tunc, is invalid, and therefore South Carolina is free to implement such plan. Pp. 499-507.

(a) The nature of the § 5 remedy, which has been characterized as an "unusual" and "severe" procedure, strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review. Unlike the first alternative method of obtaining a declaratory judgment, § 5 does not condition implementation of changes in voting laws under the second method of compliance on an affirmative statement by the Attorney General that the change is without racially discriminatory purpose or effect, but, to the contrary, compliance with § 5 under this second method is measured solely by the absence, for whatever reason, of a timely objection on the Attorney General's part. Pp. 501-503.

(b) In light of the potential severity of the § 5 remedy, the statutory language, and the legislative history, it is clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions by providing submission to the Attorney General as such an alternative. Since judicial review of the Attorney General's action would unavoidably extend the period specified in the statute, it is necessarily precluded. Pp. 504-505.

(c) Where the discriminatory character of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation, but it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under § 5, or his failure to object within the statutory period. Pp. 505-507.

425 F. Supp. 331, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 507. BLACKMUN, J., filed a dissenting opinion, post, p. 517.

J. Roger Wollenberg argued the cause for appellants. With him on the brief were Armand Derfner, Max O. Truitt, Jr., Timothy N. Black, William L. Lake, Frank Epstein, Ray P. McClain, Robert A. Murphy, and William E. Caldwell.

Randall T. Bell argued the cause for appellees. With him on the brief were Daniel R. McLeod, Attorney General of South Carolina, and Treva G. Ashworth, Kenneth L. Childs, and Katherine W. Hill, Assistant Attorneys General.

Deputy Assistant Attorney General Turner argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General McCree, Assistant Attorney General Days, Deputy Solicitor General Wallace, Howard E. Shapiro, and John C. Hoyle.

MR. JUSTICE POWELL delivered the opinion of the Court. The issue in this case concerns the scope of judicial review of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act of 1965 to a change in the voting laws of a jurisdiction subject to that Act.

I

The events leading up to this litigation date back to November 11, 1971, when South Carolina enacted Act 932 reapportioning the State Senate.1 South Carolina promptly submitted Act 932 to the Attorney General of the United States for preclearance review pursuant to § 5 of the Voting

1 Act 932 provided for multimember districts, required each candidate to run for a single, numbered post, and specified that primary elections be decided by a majority vote. See Harper v. Levi, 171 U. S. App. D. C. 321, 325-326, 520 F. 2d 53, 57-58 (1975).

Rights Act. 79 Stat. 439, as amended, 42 U. S. C. § 1973c (1970 ed., Supp. V). That section forbids States subject to the Act to implement any change in "any voting qualification

2 Section 5, as set forth in 42 U. S. C. § 1973c (1970 ed., Supp. V), provides in pertinent part:

"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b (a) of this title based upon determinations made under the first sentence of section 1973b (b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f) (2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of

or prerequisite to voting, or standard, practice, or procedure with respect to voting" without first (i) obtaining a declaratory judgment from the District Court for the District of Columbia that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color," or (ii) submitting the change to the Attorney General and receiving no objection within 60 days. While the Attorney General had Act 932 under review, several suits were filed in the United States District Court for the District of South Carolina challenging that Act as violative of the Fourteenth and Fifteenth Amendments and seeking to enjoin its enforcement until preclearance had been obtained under § 5. The cases were consolidated and a three-judge District Court was convened.

On March 6, 1972, the Attorney General interposed an objection to Act 932. Although the South Carolina District Court was aware of this objection—an objection that, standing three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court."

The constitutionality of this procedure was upheld in South Carolina v. Katzenbach, 383 U. S. 301 (1966). It has been held applicable when a State or political subdivision adopts a legislative reapportionment plan. Beer v. United States, 425 U. S. 130 (1976); Georgia v. United States, 411 U. S. 526 (1973); Allen v. State Bd. of Elections, 393 U. S. 544 (1969). 3 See South Carolina v. Katzenbach, supra, at 319-320; Allen v. State Bd. of Elections, supra, at 548-550; Hadnott v. Amos, 394 U. S. 358, 366, and n. 5 (1969); Perkins v. Matthews, 400 U. S. 379, 380-382 (1971); Georgia v. United States, supra, at 529; City of Richmond v. United States, 422 U. S. 358, 361-362 (1975); Beer v. United States, supra, at 131-133; United Jewish Organizations v. Carey, 430 U. S. 144, 147-148 (1977) (plurality opinion).

4 The objection was entered within the 60-day statutory period since the submission on Act 932 was not considered to be complete until January 5, 1972. See Georgia v. United States, supra, at 539-541; n. 19, infra. The Attorney General interposed an objection because he had been "unable to conclude . . . that the combination of multi-member districts, numbered posts, and a majority (run-off) requirement would not occasion an abridgement of minority voting rights in South Carolina." App. 27.