evils. It would impose a potentially severe administrative burden on the Attorney General by forcing him to defend numerous bail-out suits brought by political subunits. As noted in the House Report, "to permit each such subdivision to litigate the (bail-out) issue . . . would impose a continuation of the burdensome county-by-county litigation approach which has been shown to be inadequate." H.R.Rep., Supra, at 14, U.S.Code Cong. & Admin.News 1965, p. 2446.
Even more troublesome is the possibility that covered States could circumvent the purposes of the Act simply by causing their subjurisdictions that have successfully pursued a bail-out remedy to engage in discriminatory practices.
In the words of the Senate Committee members, "in most of the States affected by section 4 local boards of registration are so closely and directly controlled by and subject to the direction of State boards of election and, indeed, the State legislature that they would be required to misapply tests and devices, irrespective of their own inclinations, if this suited the general policy of the State government." S.Rep., supra, at 16, U.S.Code Cong. & Admin.News 1965, p. 2554. Similar considerations were a motivating factor in the Sheffield and Dougherty County cases. The Court observed that exempting municipalities from section 5 "would invite States to circumvent the Act . . . by allowing local entities that do not conduct voter registration to control critical aspects of the electoral process." Sheffield, Supra, 435 U.S. at 125, 98 S. Ct. at 976; Accord, Dougherty County, supra, 99 S. Ct. at 375.
In sum, then, we conclude that despite any logical inference that might be drawn from Sheffield, the reasoning of that case coupled with the legislative history and overarching purposes of the Voting Rights Act compel the conclusion that political subunits of a covered state cannot independently bring a section 4(a) bail-out action.
The City next argues that certain of its election rules, namely the majority vote, runoff election, and numbered post provisions, have in fact already been precleared by the Attorney General. As we have noted, See text accompanying notes 3-11 Supra, these provisions were adopted as part of Rome's Charter in 1966. In 1968, the State of Georgia enacted a comprehensive Municipal Election Code (1968 Code), submitted it to the Attorney General, and obtained preclearance thereof. Rome argues that the Attorney General, in pre-clearing the 1968 Code, thereby approved by reference the City's 1966 Charter amendments.
The 1968 Code provided that if a municipality's charter or ordinance, "as now existing or as amended subsequent to the effective date of this subsection," called for plurality voting, that provision would be effective. If the local legislation did not call for plurality voting, the 1968 Code required majority voting and runoff elections.
Rome argues that its Charter, having been amended in 1966 to provide for majority voting, did not provide for plurality voting in 1968, and that therefore the 1968 Code mandated majority voting and runoff elections. Similarly, the 1968 Code provided that "charter or ordinance provisions now in effect or hereinafter enacted shall govern" whether numbered posts would be used.
Rome urges that because the Charter provision "in effect" in 1968 was the 1966 amendment creating numbered posts, the 1968 Code imposed or ratified a numbered post requirement. Therefore, in Rome's view, the granting of preclearance to the 1968 Code constituted preclearance to the majority vote, numbered post and runoff election provisions of the City Charter.
The Supreme Court has twice addressed the question of what constitutes a "submission" of a voting change for purposes of section 5. In Allen v. State Board of Elections, 393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969), it rejected the argument that a submission occurred whenever the Attorney General became aware of a particular state enactment. In the Court's view, it was necessary that the submitting jurisdiction "in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act." 393 U.S. at 571, 89 S. Ct. at 834. In Sheffield, Supra, the Attorney General precleared a city's proposal to hold a referendum on the question of whether to switch from a commission to a mayor-council form of government. He objected, however, to the result of the referendum, in which the voters approved the proposed change. The Court rejected the argument that in approving the referendum the Attorney General also approved the change in form of government, stating that "the purposes of the Act would plainly be subverted if the Attorney General could ever be deemed to have approved a voting change when the proposal was neither properly submitted nor in fact evaluated by him." 435 U.S. at 136, 98 S. Ct. at 982.
We think Allen and Sheffield compel rejection of the City's theory. Georgia, in our view, submitted to the Attorney General only its decision to defer to local charters and ordinances regarding majority voting, runoff elections, and numbered posts, and, possibly, its expression of a general policy in favor of majority voting. It did not, however, submit in an "unambiguous and recordable manner" all municipal charter provisions, as written in 1968 or as amended thereafter, regarding these issues. To be sure, the Attorney General could have inferred from the submission that some municipalities had recently adopted or planned to adopt such rules. But the Court in Sheffield rejected the theory that voting changes are to be deemed submitted merely because an earlier submission renders the occurrence of these changes very likely. Just as in Sheffield the submission of a decision to hold a referendum did not incorporate by reference the results of that referendum, so, here, submission of state laws authorizing municipalities to adopt certain provisions in their charters does not constitute submission of the actual exercise of this authority by local governments. We might add, finally, that Rome has even less claim to have submitted its voting changes than did the litigants in Allen and Sheffield, since in the earlier cases the Attorney General was at least made aware of the changes at issue, whereas here, due to Rome's delay in submitting its 1966 Charter amendments, the Attorney General had never been given notice, as of 1968, that these changes had even taken place.
The City raises a second argument that its voting changes have been administratively precleared, this time focusing on the Attorney General's actions in 1976. Rome sought reconsideration of the Attorney General's objection to its electoral changes and annexations on May 24, 1976. On July 14, 1976, before the Attorney General had responded, the City supplemented its request with two additional affidavits. On August 12, 1976, the Attorney General declined to withdraw his objection.
The Attorney General has by regulation provided that requests for reconsideration shall be acted upon within 60 days of their receipt. 28 C.F.R. § 51.3(d) (1978).
See generally Georgia v. United States, 411 U.S. 526, 536-41, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1973). Rome computes the 60 days as running continuously from May 24, the date of the initial request for reconsideration, in which case the period would have expired prior to the Attorney General's response on August 12. The Government, on the other hand, computes the period as running from July 14, the date Rome supplemented its request, in which case the response was timely.
We agree with the Government that the time period commenced anew when Rome supplemented its request on July 14. In the analogous situation of an original submission, the Government has the power to request additional information and, in its unreviewable discretion, Morris v. Gressette, 432 U.S. 491, 97 S. Ct. 2411, 53 L. Ed. 2d 506 (1977), to delay commencement of the 60-day period until the information is received if it believes the initial submission is unsatisfactory. 28 C.F.R. § 51.18(a).
When additional information is supplied at the initiation of the submitting jurisdiction rather than the Government, there is even more reason to view the period as commencing anew from the time of receipt.
We conclude, therefore, that the Attorney General has not precleared the voting changes at issue in this case.
The plaintiffs next raise a congeries of arguments challenging the constitutionality of section 5 of the Voting Rights Act. They attack that section as being (1) beyond the power of Congress under the Fifteenth Amendment; (2) an infringement of the rights reserved to the states under the Tenth Amendment; (3) a violation of the Guarantee Clause; and (4) an infringement of the rights of the private plaintiffs under various constitutional provisions.
We are bound to note, at the outset, that in asking this Court to declare section 5 unconstitutional, the plaintiffs summon us to a life of high adventure. For we could not do as the plaintiffs ask without overruling or ignoring unequivocal and repeated holdings by the Supreme Court of the United States. In South Carolina v. Katzenbach, the Court held that section 5, together with certain other provisions of the Act, is "an appropriate means for carrying out Congress' constitutional responsibilities and (is) Consonant with all other provisions of the Constitution." 383 U.S. 301, 308, 86 S. Ct. 803, 808, 15 L. Ed. 2d 769 (1966) (emphasis supplied). Far from backing away from Katzenbach, the Court has in the ensuing years often cited that case with approval. See United Jewish Organizations v. Carey, 430 U.S 144, 157, 97 S. Ct. 996, 51 L. Ed. 2d 229 (1977) (plurality opinion); Id. at 180 n. *, 97 S. Ct. at 1017 (Stewart, J., concurring in the judgment); Beer v. United States, 425 U.S. 130, 133, 96 S. Ct. 1357, 47 L. Ed. 2d 629 (1976); Georgia v. United States, 411 U.S. 526, 535, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1973); Allen v. State Board of Elections, 393 U.S. 544, 548, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969). Accord, Wilkes County v. United States, 450 F. Supp. 1171, 1177 (D.D.C.), Aff'd, 439 U.S. 999, 99 S. Ct. 606, 58 L. Ed. 2d 674 (1978).
It is true, as plaintiffs point out, that this impressive line of cases has not been without an undercurrent of dissent or at least unrest. Justice Black, the only member of the Court not to join the opinion in Katzenbach, believed that section 5's preclearance procedure "so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless." Katzenbach, supra, 383 U.S. at 358, 86 S. Ct. at 834 (Black, J., concurring and dissenting); See also Allen, supra, 393 U.S. at 595-97, 89 S. Ct. 817 (Black, J., dissenting); Perkins v. Matthews, 400 U.S. 379, 401-07, 91 S. Ct. 431, 27 L. Ed. 2d 476 (Black, J., dissenting). Other Justices have also expressed misgivings. See Georgia v. United States, supra, 411 U.S. at 545, 93 S. Ct. 1702 (Powell, J., dissenting); Holt v. City of Richmond, 406 U.S. 903, 92 S. Ct. 1602, 31 L. Ed. 2d 814 (1972) (Burger, C. J., concurring); Allen, supra, 393 U.S. at 586 & n.4, 89 S. Ct. 817 (Harlan, J., concurring and dissenting).
Further, it is undeniably true, as plaintiffs urge, that the constitutional climate has changed considerably since the Katzenbach decision. Of particular relevance to the present case, the Supreme Court in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), revivified the principles of federalism embodied in the Tenth Amendment. Federalism concerns have also played a prominent role in other recent cases, E. g., Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976); Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). And in a separate line of cases, the Court has held that the equal protection components of the Fifth and Fourteenth Amendments condemn only purposeful discrimination, not actions discriminatory in effect but not in intent. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1976); Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). Plaintiffs argue that, were the Court to reconsider the constitutionality of section 5 in light of these other cases, it would strike that provision down.
As a federal District Court, however, we should be slow indeed to disobey an explicit command of the Supreme Court absent compelling indications that the Court has now changed its mind. And we do not find such indications in the present case. To the contrary, our best estimate is that, were the Court writing on a clean slate today, it would affirm the constitutionality of section 5 much as it did in Katzenbach 13 years ago.
Before reaching the merits, however, we must dispose of a question going to our jurisdiction which, although not raised by the parties, we are obligated to decide Sua sponte. The jurisdiction of this 3-judge District Court is established, for present purposes, in section 5 of the Act.
The cause of action over which jurisdiction is in terms conferred by section 5 is restricted to preclearance actions, and the only parties explicitly authorized to bring such actions are covered jurisdictions. The claims we consider in the present section are, however, constitutional challenges to the Act, some of them brought by private parties rather than the City. We are doubtful that this Court has statutory jurisdiction over such claims.
Despite these doubts, we find we can take jurisdiction over the claims on a pendent jurisdiction theory. The constitutional and Voting Rights Act claims arise from a "common nucleus of operative fact," United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), and the interests of judicial efficiency call for their resolution in a single proceeding. Moreover, we do not perceive in section 5 any congressional intent to preclude our taking jurisdiction either over the City's constitutional assertions or over the claims of the private plaintiffs as to whom Congress has not extended the section 5 cause of action.
See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978); Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976). We therefore see no reason not to take jurisdiction over all the constitutional claims.
Plaintiffs first argue that Congress simply had no power to prevent a state or local jurisdiction from implementing voting changes which, although not motivated by racial animus, nevertheless have the effect of diluting black voting strength.
Section 5 of the Voting Rights Act in terms requires a covered jurisdiction to demonstrate the absence of discrimination both in purpose and in effect. See note 43 Supra. However, the Fifteenth Amendment, which is the source of Congress' power to enact section 5,
in plaintiffs' view outlaws only Purposeful discrimination. Therefore, they argue, Congress acted beyond its constitutional powers insofar as it purported to proscribe voting changes discriminatory in Effect only.
Whether the Fifteenth Amendment reaches only purposeful discrimination is an important and unsettled constitutional question. The Supreme Court, in Arlington Heights and Washington v. Davis, supra, may have intimated an answer when it held that the equal protection components of the Fifth and Fourteenth Amendments reach only purposeful discrimination.
A panel of the Fifth Circuit has recently held, largely on the basis of these cases, that the Fifteenth Amendment reaches only purposeful discrimination. Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978). The Supreme Court, however, has never explicitly addressed the question.
And as Judge Wisdom pointed out, specially concurring in Nevett, id. at 231, despite their close historical connections there are important structural differences between the Amendments: the Fifteenth Amendment would not appear as firmly grounded on a core idea of intentional discrimination and, being far more restricted in scope, does not present as compelling a case for a limited construction. Moreover, as Judge Wisdom noted, the special character of the franchise, which is "a fundamental political right, because preservative of all rights," Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 1071, 30 L. Ed. 220 (1886), may serve to distinguish it from the panoply of other constitutional rights protected by the Fourteenth Amendment.
We need not decide this question here, however, because even assuming, Arguendo, that the Fifteenth Amendment reaches only purposeful discrimination, we find that Congress was within its broad enforcement power under section 2 thereof when it outlawed voting changes discriminatory in effect only. Chief Justice Warren emphasized the sweeping nature of this power in South Carolina v. Katzenbach, supra, 383 U.S. at 327, 86 S. Ct. at 818, when he quoted with approval the following broad statement in Ex parte Virginia, 100 U.S. 339, 345-46, 25 L. Ed. 676 (1879):
Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.