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APACHE CTY. v. UNITED STATES

July 26, 1966

APACHE COUNTY, Navajo County, Coconino County, and the State of Arizona, Plaintiffs,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: LEVENTHAL

 This is an action, the first of its kind, brought under Section 4(a) of the Voting Rights Act of 1965 *fn1" by plaintiff counties and the State of Arizona for a declaratory judgment that would permit reinstatement of the operation of the literacy test which Arizona's legislature has prescribed as a requirement for voter registration. *fn2" Specifically, plaintiffs seek a judgment declaring that this literacy test has not been "used during the five years preceding the filing of this action for the purpose or with the effect of denying or abridging the right to vote on account of race or color."

 The basic structure of Section 4 of the Act may be summarized briefly. The Act defines as a "test or device" "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrates the ability to read, write, understand, or interpret any matter." Section 4(c). *fn3" The provisions of section 4 apply in any state or political subdivision which the Attorney General determines maintained a "test or device" on November 1, 1964, if the Director of the Census determines that less than 50% of the residents of voting age were registered as of that date or voted in the presidential election of November, 1964. Section 4(b). These determinations are effective upon publication in the Federal Register.

 Such publication operates in and of itself to suspend the effectiveness of the test or device. The underlying determinations of the Attorney General and the Director of Census "shall not be reviewable in any court." Once the determinations are made the test or device involved may not be enforced unless and until a declaratory judgment is issued by this court that no such test or device has been used during the preceding five years for the purpose or with the effect of denying or abridging the right to vote on account of race or color. The constitutionality of the statutory pattern was upheld in South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966).

 The operation of the Arizona literacy test has been suspended in Apache County since August 7, 1965, and in Navajo and Coconino Counties since November 19, 1965, by virtue of publications on those dates of the section 4(b) determinations of the Attorney General and Director of the Census. *fn4" The three counties and the State filed this action on February 4, 1966. After several extensions, the United States filed an answer consenting to the entry of the declaratory judgment. The Navajo Tribe and thirty-one members of the Navajo Tribal Council (hereafter referred to collectively as "Navajos"), filed a motion to intervene. The moving papers are filed by the Tribe as parens patriae of Navajos resident in plaintiff counties, and by the individuals in behalf of themselves and all others similarly situated. These applicants urge that the action be dismissed or that the Attorney General be ordered to make a "full, impartial and complete" investigation into the use of the literacy test in the three counties. The case is before us now on plaintiffs' motion for summary judgment, acquiesced in by the United States, and on the Navajos' motion to intervene.

 I

 At the outset, we reject the Navajos' contention that they are entitled to intervene as a matter of right under Rule 24(a), Fed.R.Civ.P. Rule 24(a)(1) provides for intervention as of right when a statute confers an unconditional right to intervene. The Voting Rights Act of 1965 makes no express provision for intervention. It rather contemplates that the Attorney General will protect the public interest in defending section 4(a) actions. What the Navajos rely on is Rule 24(a)(2), which confers a right to intervene "when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action."

 The Voting Rights Act of 1965 created a new and drastic remedy of a public nature - automatic suspension of literacy tests in areas with less than 50% voter registration. To turn a phrase around, there is no remedy without a right. But the right enforced by this remedy is a public right, appertaining not to individual citizens, but to the United States itself - called upon by Congress, in implementing the Fifteenth Amendment, to vindicate the right of all citizens of the United States collectively to be free from discrimination in any part of the United States on account of race or color. This public right and remedy are supplementary to but analytically distinct from the individual rights of those discriminated against by or in the areas involved.

 The analytical distinction between public right and private right is not to be obscured by the public interest in effective enforcement of the private right. In establishing and defining new rights and remedies in the area of civil rights, Congress has made plain its keen awareness of the significance of such refinements. Thus, in section 204 of the Civil Rights Act of 1964, Congress provided a private right and remedy, an action for injunction brought by persons aggrieved by the threat of discriminatory denial of public accommodations, and provided for appearance by the Attorney General not as initiating party but as intervenor in the private action. 42 U.S.C. § 2000a-3.

 As to voting rights, the Fifteenth Amendment declares in terms that these rights of United States citizens shall not be denied or abridged by any State on account of race or color. This is self-executing, and itself invalidates state discrimination. South Carolina v. Katzenbach, supra, 383 U.S. at 325, 86 S. Ct. 803. Congress has specifically provided that a person who under color of state law deprives a United States citizen of any right secured by the Constitution and laws "shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." R.S. § 1979, 42 U.S.C. § 1983.

 The Civil Rights Act of 1957 provides that if there are reasonable grounds to believe that a person is about to engage in a practice that would deprive a United States citizen of his right to vote without discrimination on account of race or color, "the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief." 42 U.S.C. § 1971(c). The authority to initiate such actions was upheld in United States v. Raines, 362 U.S. 17, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960). Actions under the 1957 law now have certain features similar to the action before us, since amendments have provided for the United States and States to be opposing parties (1960) *fn5" and for three-judge courts to expedite determination (1964). *fn6"

 Under section 4 of the 1965 Act the action is filed in the first instance by a State or political subdivision, but it is the practical equivalent of an action to dissolve an outstanding restraint against enforcement of a "test or device" - obtained at the instance of the United States - although the restraint is in the form of a statutory suspension rather than a judicial injunction.

 Applicants cannot intervene as of right in this litigation between the United States and a State on the ground of necessity to protect their private interests. No decree in this public litigation can have the effect of legally binding or concluding the Navajos in any action to enforce their individual or private rights, e.g. under 42 U.S.C. § 1983. Though practical consequences to the applicants may be taken into account in considering permissive intervention, one may not intervene as a matter of right in the litigation of others unless he shows "the equivalent of being legally bound" by the decree in their case. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 694, 81 S. Ct. 1309, 1315, 6 L. Ed. 2d 604 (1961).

 The Government would go a step further. It argues that the spirit of the 1965 Act excludes intervention by private parties under any circumstances. We cannot agree. It is true that section 4 of the Act is structured in terms of interaction between federal and state (or local) governments. It is true, too, that speedy determination of section 4(a) suits brought by state or local governments is desirable. The very existence of this remedy reflects an awareness by Congress that the broad statutory suspension of tests may have an over-broad reach which requires corrective procedures to avoid unintended incursion on legitimate state policy. The special three-judge ...


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