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HARRIS v. LEVI

January 5, 1976

ARVELLA HARRIS et al., Plaintiffs,
v.
EDWARD LEVI et al., Defendants


Flannery, District Judge.


The opinion of the court was delivered by: FLANNERY

ORDER

This matter comes before the court on defendants' motion to dismiss. Upon consideration of defendants' motion, memoranda submitted in support thereof, plaintiffs' opposition thereto, oral argument thereon, and the entire record herein, and for the reasons stated in the accompanying Memorandum Opinion filed by the court this date, it is by the court this 5th day of January, 1976.

 ORDERED that defendants' motion, insofar as it pertains to count one of the complaint, should be, and the same hereby is, denied; and it is further

 ORDERED that consideration of defendants' motion, insofar as it pertains to counts three, four and five of the complaint should be, and the same hereby is, stayed pending adjudication of count one; and it is further

 ORDERED that defendants' motion, insofar as it pertains to count two of the complaint should be, and the same hereby is, granted; and it is further

 ORDERED that count two of the complaint should be, and the same hereby is, dismissed; and it is further

 ORDERED that all proceedings in this case, insofar as they pertain to counts three, four and five, should be, and the same hereby are, stayed pending adjudication of count one of the complaint and the further order of this court; and it is further

 ORDERED that the parties shall appear before this court at 9:30 a.m. on January 28, 1976 for a status call.

 Thomas A. Flannery / UNITED STATES DISTRICT JUDGE

 MEMORANDUM OPINION

 Plaintiffs, black residents and registered voters of Meriwether County, Georgia, seek a judgment declaring invalid a decision by the Attorney General to withdraw objections to a redistricting statute enacted by the Georgia state legislature. Count one of plaintiffs' complaint alleges that the Attorney General's action was inconsistent with procedures outlined in section five of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970), and regulations promulgated thereunder by the Department of Justice, 28 C.F.R. §§ 51.23-51.25 (1974). Count two alleges that the Attorney General lacked statutory authority to withdraw the objections. Counts three through five allege that the Attorney General's action was inconsistent with the substance of section five of the Voting Rights Act, and, consequently, subject to reversal through judicial review under section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1970).

 The matter is now before the court on defendants' motion to dismiss. The court finds that count one of plaintiffs' complaint is sufficient to withstand defendants' motion, and, therefore, the motion will be denied in part. Since count one, standing alone, could potentially support all relief requested in the complaint, the court finds it unnecessary to rule at this time on defendants' motion insofar as it pertains to counts three through five. The court finds that count two, however, lacks merit on its face and will order it dismissed.

 Section five of the Voting Rights Act of 1965 provides that regulated states wishing to implement legislation concerning voting must obtain a declaratory judgment that the statute does not have the purpose or effect of discriminating on the basis of race. Alternatively, regulated states may submit the statute to the Attorney General of the United States for his approval. If the Attorney General does not object to the statute within 60 days it becomes law. If he does object, the state cannot implement the statute unless it goes to court and obtains a declaratory judgment. Approval by the Attorney General or by declaratory judgment does not bar a traditional constitutional challenge to the statute by affected parties. Section five further provides that suits brought pursuant to it must be heard by three-judge courts.

 The instant case concerns Act No. 1046 of the 1970 Session of the Georgia General Assembly. The statute, which applies only to Meriwether County, abolishes the existing practice of electing county commissioners by district and institutes the practice of electing all commissioners at large. Plaintiffs allege that the purpose and effect of the statute is to dilute the voting power of blacks, who are clustered geographically. Georgia, which is subject to the Voting Rights Act, sought the Attorney General's approval of the statute. The Attorney General interposed an objection within the 60-day period prescribed by the Act, thereby preventing the statute from taking effect. On October 16, 1974, a delegation from Meriwether County met with the Attorney General and requested that the objection be reconsidered in light of additional evidence. Apparently on the basis of the delegation's representation that the redistricting plan was ...


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