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August 24, 1978

UNITED STATES of America et al., Defendants

The opinion of the court was delivered by: ROBINSON


The Government *fn1" has moved for an injunction restraining implementation of current statutory procedures for election of members of the Board of Education of Charlton County, Georgia. The motion presents important questions concerning the jurisdiction and equitable discretion of this court in dealing with requests for injunctive relief in cases brought under Section 5 of the Voting Rights Act of 1965. *fn2" Our resolution of the critical issues disfavors the Government and constrains us to deny the motion. *fn3" Our reasons follow.


 The Charlton County Board of Education and its chairman brought this action pursuant to Section 5, which requires jurisdictions like Georgia that are covered under Section 4 of the Act *fn4" to obtain the approbation of either the Attorney General of the United States or this court *fn5" before enacting or administering "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964." *fn6"

 Prior to January 1, 1976, the Board was comprised of five members, appointed for staggered five-year terms by the County Grand Jury, *fn7" and a Superintendent of County Schools was elected by the voters of Charlton County for a four-year term. *fn8" On April 17, 1975, the Georgia legislature enacted Local and Special Act No. 360 (Act 360), *fn9" which provides that the previously appointive Board of Education should be an elective body, and that the members thereof should appoint the School Superintendent. *fn10" Operation of Act 360, by its terms, was conditioned on ratification in a county referendum *fn11" and on June 24, 1975, the voters of Charlton County approved it. The current members of the Board were elected in the fall of 1975 and they took office on January 1, 1976. As contemplated by Act 360, the Board appointed the County Superintendent of Schools.

 On April 22, 1977, the Judge of the Probate Court of Charlton County the official charged with primary responsibility for conducting county elections *fn12" submitted Act 360 to the Attorney General for preclearance under Section 5. Assistant Attorney General Days, on behalf of the Attorney General, interposed an objection to Act 360's specifications that members of the Board of Education be elected at large from the county, with residency districts, numbered posts and staggered terms. The objection was based on the view that "fairly drawn single member districts would give blacks a more realistic opportunity to elect a candidate of their choice." *fn13" No opposition to conversion of the office of County School Superintendent from elective to appointive was voiced.

 The Board of Education filed this suit on March 29, 1978, seeking a declaratory judgment that Act 360 did not establish a voting practice or procedure different from that in force or effect on November 1, 1964, and that Act 360 did not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. On July 27, we rejected the former claim. *fn14" A hearing to determine whether Act 360 has a racially discriminatory purpose or effect is scheduled for September 15, and that was to be the next battleground in this litigation.

 On August 3, however, the Government moved for an injunction restraining the Board from "conducting" a board-member primary election set for August 8 and a general election slated for November 7. By order of court issued August 4, the period for the Board's response to the motion was shortened and a date for hearing the motion was arranged. *fn15" The parties were specifically directed to address, with argument and appropriate affidavits, "the question whether and to what extent the Charlton County Board of Education (as distinguished from some other body or official) may be conducting, or participating in the conduct of, the primary election" scheduled for August 8. *fn16" The motion was heard at 3:30 p.m. on August 7 and, after an immediately ensuing conference, we met the exigencies of the situation by announcing from the bench our decision to deny the requested injunction. This opinion elucidates the reasons leading us to that disposition.

 Two fundamental considerations underlie our ruling. First, we do not have jurisdiction over the persons legally responsible for conducting school board elections in Charlton County, nor are representatives of the election officials before us. *fn17" Second, we are endowed with ample equitable discretion to decline to enjoin some changes in voting practices covered by Section 5 even though they have not been precleared by the Attorney General or this court, and this case in its present posture calls for exercise of that discretion. *fn18"


 In its motion for the injunction and an accompanying affidavit, the Government flatly averred that the Board was proceeding to conduct the August 8 primary election. *fn19" After issuance of the August 4 order, however, the Government reexamined its position and conceded that the Board does not participate managerially in elections to its membership. *fn20" An affidavit made by the County Superintendent and submitted by the Board confirms this pivotal fact. *fn21"

 Yet the Government has continued to press the motion, arguing that in this litigation the Board is acting on behalf of the State of Georgia, which passed Act 360, and the State and County election officials who administer it. In support of this contention, the Government relies primarily on Section 5, urging that the Board has standing to bring this suit only because it is representing the State. To further buttress its claim, the Government asserts that under Georgia law boards of education lack capacity to sue or be sued in their own right.

 We start from the principle that the power of this court to issue an injunction is wholly dependent on possession of In personam jurisdiction over those to whom the injunction is directed. *fn22" To be sure, an injunctive decree may bind not only litigants but also those who are represented by litigants, *fn23" but this representation must exist In fact. *fn24" The pleadings in this case nowise intimate that the Board is maintaining this suit as an agent either of the State or of the County election officials. *fn25" Nor has counsel for the Board been controverted in the least in his factual assertion that the Board has brought this action solely in its own behalf. *fn26"

 The Government's theory that the Board is litigating herein for the benefit of the State and the County rests on little more than a play on words. *fn27" Section 5 provides that a declaratory judgment action may be instituted by a "State or (political) subdivision" made subject to its strictures by Section 4. Thus, the Government begins with the premise that in order for the Board to qualify as a Section 5 plaintiff, it must be a "State or political subdivision." In United States v. Board of Commissioners of Sheffield (Sheffield), *fn28" the Supreme Court construed the term "political subdivision" in Section 5 to refer only to such political units in nondesignated states as may be separately designated for coverage ...

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