S. Ct. 1357, which underwent no change at all.
8. Act R546 of the General and Permanent Laws of the State of South Carolina established voting qualifications or prerequisites to voting, or standards, practices, or procedures with respect to voting, different from those in force or effect in Horry County, South Carolina on November 1, 1964 with respect to election of the members of the Horry County Council and its separately elected chairman.
9. Act R546 is subject to the pre-clearance requirements of Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c.
An order consistent with the foregoing Findings of Fact and Conclusions of Law has been entered today.
On consideration of the plaintiff's motion for summary judgment, the memoranda and affidavits submitted in support thereof and in opposition thereto, and the oral argument on the motion, and
In accordance with the findings of fact and conclusions of law filed this day, it is
ORDERED by the court that the plaintiff's motion for summary judgment is hereby denied, and it is
FURTHER ORDERED by the court, sua sponte, that partial summary judgment is hereby granted to the defendant, to the extent that the court hereby declares that Act R546 of the 1976 General and Permanent Laws of the State of South Carolina is subject to the preclearance requirements of Section 5 of the Voting Rights Act of 1965, as amended 42 U.S.C. § 1973c.
MEMORANDUM AND ORDER ON PLAINTIFF'S APPLICATION FOR INTERIM DECLARATION OF RIGHTS
On January 26, 1978 plaintiff Horry County filed an "application for interim declaration of rights" requesting a declaration that it was entitled to hold 1978 primary and general elections for County Council under Act R546 of the 1976 General and Permanent Laws of the State of South Carolina, although that Act has not yet been cleared under Section 5 of the Voting Rights Act. On April 5, 1978 Horry County filed a suggestion that the application for interim relief had become moot.
We conclude that the application for interim relief is not moot and that it should be denied on its merits.
On March 21, 1978 the three-judge District Court in the District of South Carolina which had heard McCray v. Hucks, Civil Action No. 76-2476, entered an order1a allowing the 1978 elections, notwithstanding the Voting Rights Act, "subject to any contrary or modifying order that may be entered by any court in the District of Columbia Circuit having jurisdiction." We are troubled by this order because it was entered ex parte in an action which appears to have been dismissed on January 9, 1978 after having been abandoned by its plaintiffs several months earlier. But in any event, the South Carolina court's explicit recognition of our power to enter a superseding order prevents the issue from becoming moot in this court.
We have determined to enter an order enjoining the 1978 primary and general elections for Horry County Council pending final judgment in this case. Section 5 of the Voting Rights Act states plainly that an enactment subject to its provisions may not be enforced unless and until either this court or the Attorney General gives preclearance. The Supreme Court has recognized the equitable power of the District Courts to permit enforcement of such statutes pendente lite notwithstanding Section 5. Georgia v. United States, 411 U.S. 526, 541, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1973); Perkins v. Matthews, 400 U.S. 379, 396-397, 91 S. Ct. 431, 27 L. Ed. 2d 476 (1971).
But it has also made clear the equitable discretion of the courts not to permit use of electoral statutes not yet pre-cleared. In Georgia v. United States, supra, a three-judge District Court enjoined state legislative elections under a reapportionment plan which had not obtained pre-clearance. The Supreme Court granted a stay to allow the holding of one election under the challenged reapportionment plan. On the merits the Supreme Court then affirmed the injunction, validating the one election which had been held, but making clear that no new elections could be held until a reapportionment plan received pre-clearance under Section 5. See also Moore v. Leflore County Board of Election Comm'rs, 351 F. Supp. 848 (N.D. Miss. 1971) (three-judge court).
We do likewise. The council presently in office was elected in 1976 under Act R546, which we today hold is subject to Section 5 pre-clearance but has not yet received it. We agree with the Department of Justice that in the circumstances the lesser evil is to allow the council members elected in 1976 to hold over beyond the scheduled end of their terms, if necessary, rather than allow a second election to be held under Act R546, a statute to which the Attorney General has refused pre-clearance. The intent of Section 5 is clear: black voters are not to be made to wait through election after election under untested and potentially discriminatory laws. That intent would be best served here by enjoining the holding of the 1978 primary and general elections.
Therefore, on consideration of plaintiff's application for interim declaration of rights, the opposition thereto, and the suggestion of mootness, it is
ORDERED by the court that plaintiff and all its agents and employees, and all persons acting in concert therewith or under its direction, are enjoined from conducting the scheduled 1978 primary and general elections for Horry County Council pending termination of this action or further order of this court. The present members of the County Council shall continue in office, notwithstanding the expiration of their elected terms, until such a time as their successors have been lawfully elected. Vacancies in the membership of the Council due to death, resignation, or other causes may be filled in the manner prescribed under Act R546.