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VIRGINIA v. UNITED STATES

September 18, 1974

COMMONWEALTH OF VIRGINIA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant, CRUSADE FOR VOTERS, et al., Defendant-Intervenors



The opinion of the court was delivered by: GASCH

 This is an action in which the Commonwealth of Virginia seeks a declaratory judgment exempting it from coverage by the Voting Rights Act of 1965, 42 U.S.C. § 1973. Section 4(a) of the Act forbids the application, in any jurisdiction covered by the section, of any literacy test or of any other "test or device" as defined by the Act. *fn1" Section 5 provides that no new election law or procedure may be put into operation in a jurisdiction to which the prohibitions of Section 4(a) apply unless the new law or procedure has been approved by the Attorney General or the United States District Court for the District of Columbia. *fn2" If this court finds that Virginia is entitled to an exemption under 4(a), it will no longer be subject to the constraints of Sections 4(a) or 5. *fn3"

 Pursuant to Section 4(b), the constraints of Sections 4(a) and 5 "apply in any State or in any political subdivision of a State in which

 1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which

 2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964."

 The literacy test at issue is the requirement in Section 20 of the Constitution of Virginia that a person wishing to register "make application to register in his own handwriting, without aid, suggestion, or memorandum." *fn4" The Attorney General and the Director of the Census made the required determinations on August 7, 1965. (30 Fed. Reg. 9897). Those determinations are not subject to judicial review.

 Section 4(a) provides, however, that a covered state may obtain an exemption by proving that any test or device which it maintained in the past ten years did not have the "purpose or effect" of discriminating on the basis of race. *fn5" On June 5, 1973, the Commonwealth of Virginia brought this action for a declaratory judgment to remove itself from the constraints of the Act. After the statutory three-judge court was designated on October 23, 1973, the Commonwealth of Virginia, defendant United States of America, and defendant-intervenor Crusade for Voters each moved for summary judgment for plaintiff.

 Under the Voting Rights Act, in order to gain an exemption, a state or political subdivision "need no more than 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, *fn6" and then refute whatever evidence to the contrary may be adduced by the Federal Government." South Carolina v. Katzenbach, 383 U.S. 301 at 332, 15 L. Ed. 2d 769, 86 S. Ct. 803 (1966). Such "evidence to the contrary" may be either that a "test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color," or that there has been a "final judgment of any court of the United States . . . determining that denials or abridgments of the right to vote on account of race or color through the use of such tests or devices have occurred anywhere in the territory of such plaintiff." 42 U.S.C. 1973b(a).

 In this action Virginia has satisfied the affidavit requirement through an exhaustive canvass of registrars throughout the state plus a good faith attempt to solicit information from black leaders. (See plaintiff's affidavits attached to its motion for summary judgment). While some of the responses from registrars are undoubtedly self-serving, the near-unanimity of responses and the wide scope of the search certainly satisfies the burden on Virginia to present prima facie evidence of lack of discrimination.

 We turn, then, to evidence introduced by the United States and by the defendant-intervenor ("defendants").

 First, defendant United States asserts that two final judgments, Wilks v. Woodruff (preliminary injunction issued September 28, 1964, Civ. No. 4073, E.D. Va.), and Allen v. State Board of Elections, 393 U.S. 544, 22 L. Ed. 2d 1, 89 S. Ct. 817 (1969) (order of district court, E.D. Va. April 11, 1969), fit within the proviso of section 4(a) and thereby bar relief. This contention need not detain us long.

 In Wilks the district judge issued a preliminary order enjoining the denial of registration to one individual and others similarly situated on the ground that the individual seeking registration had used a form different from the one offered by the registrar. The court stated:

 
"The court is of the opinion that the case should be decided from the bench today because the registration period expires early next month.
 
"The court states its findings of fact and conclusions of law only for the purpose of the interlocutory injunction. When the case is heard on its merits, the court may modify its findings and conclusions."

 A search of the complete transcript of the hearing shows no evidence of anything resembling a determination that denials or abridgments of the right to vote on account of race or color through the use of a test or device had occurred. Nor is the Wilks order a "final judgment." While the case was later dismissed as moot, that does not convert an interlocutory injunction into a final judgment. Contrary to the argument of the United States, a final judgment is not merely the "last order," but rather must be a decision on the ...


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