Attorney General. Under section 5, the Attorney General may thus permit new voting requirements to go into effect without court approval. Under section 4, however, a court order is required.
In a section 4 action this court, as the Government properly admitted on oral argument, is not concluded by the acquiescence of the Attorney General. We are being asked to enter a judgment declaring the existence of a state of facts. This is a judicial not a ministerial act. The court's independent function necessarily implies the power and authority to call upon the traditional resources of the judicial system. We see no basis for supposing that Congress meant to strip the court of its customary authority to permit intervention deemed helpful by the court. In our view the court has discretionary authority to permit intervention by applicants offering to provide evidence or argument concerning the facts the court must determine in arriving at its declaratory judgment.
The Government's argument with respect to the essential nature of the Act does, however, point to the proper bounds for exercise of the court's power to permit intervention. Congress assigned to the Attorney General the primary role in vindicating the public interest under the Act. We should be reluctant indeed to permit intervention in a section 4(a) action in the absence of a plausible claim that the Attorney General is not adequately performing his statutory function, and that intervention is needed to enable the court properly to perform its declaratory function or in some other way to protect the public interest.
However, if the Attorney General has been derelict or deficient, if the fact-finding process is warped or inadequate, the court has the authority and indeed may have the duty to allow intervention to cure or relieve the deficiencies. Such intervention is not to be permitted except upon a strong showing. The showing made by the Navajos in this case will be considered in part III of this opinion.
We have before us a large number of exhibits submitted by the plaintiffs to the Justice Department in February 1966, and submitted to us in support of plaintiff's motion for summary judgment. These include affidavits and letters of voting officials in the three plaintiff counties, stating that they have not applied the literacy test in a discriminatory matter. These submissions are not bald conclusory assertions, but include materials and comment purporting to account for the phenomenon of low voter registration among the Indians and detailing increased efforts to provide Indians with more, and more conveniently located, registration facilities, notably efforts to provide more deputy registrars on the reservation. That this kind of submission is enough to establish a "prima facie case" for relief under section 4(a) is indicated by the Supreme Court's statement in South Carolina v. Katzenbach, supra, 383 U.S. at 332, 86 S. Ct. at 820, that "an area need do no more than to submit affidavits from voting officials, asserting that they have not been guilty of racial discrimination through the use of tests and devices during the past five years, and then to refute whatever evidence to the contrary may be adduced by the Federal Government."
The papers before us, including affidavits of the First Assistant and the Second Assistant to the Assistant Attorney General for the Civil Rights Division, establish that the United States answered plaintiffs' complaint only after the Department of Justice had completed an investigation of the administration of voting requirements in the three counties in order to determine whether there was any indication that the literacy test had been used to deny the right to vote on account of race or color. A Department attorney spent sixteen days in April 1966 in the three counties; he interviewed 47 people, including various local officials, voting registrars, and members of the Navajo, Hopi and Havasupi Tribes.
Their names and addresses and the dates of the interviews have been furnished the court. The Department also reviewed the materials submitted by the plaintiffs, and correspondence in its files with respect to voting practices in the three counties.
The Department's answer reports that its investigation turned up evidence of one incident of discriminatory use of the literacy test. The Government claims that in 1964 an Apache County official up for re-election, upon learning that a number of Indians intended to vote for his opponent, arranged for a challenge to voters at the polls based on their inability to read the Constitution in English. The challenge, administered to Indians and non-Indians alike (but obviously aimed at the Indians), resulted in the disqualification of at least one registered Indian. The Department officials further report that no other discriminatory incident was unearthed in the course of the investigation. We are also advised that in 1965, subsequent to this incident, the Arizona legislature amended its voting laws so that the ability to read the Constitution in English, though retained as a requirement for initial registration, was eliminated as a ground for challenge of registered voters at the polls.
The Government's answer to plaintiffs' motion for summary judgment concedes that on the basis of the pleadings, affidavits and other papers filed, plaintiffs are entitled to a summary judgment declaring that during the five years preceding the filing of the action the voter qualification standards set forth in Arizona law have not been used for the purpose or with the effect of denying or abridging the right to vote on account of race.
This is not a case where there is no dispute whatever as to the facts. The plaintiffs' assertion that there has been no discriminatory use of the literacy test is disputed by the Government in regard to the incident related. However, summary judgment may issue so long as there is no dispute as to a material fact. And on the record before us we conclude that any dispute as to the 1964 incident, if the plaintiffs do indeed retain their original position, is not material. Section 4(d) of the Act provides:
(d) For purposes of this section no State or political subdivision shall be determined to have engaged in the use of tests or devices for the purpose or with the effect of denying or abridging the right to vote on account of race or color if (1) incidents of such use have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.