The opinion of the court was delivered by: OBERDORFER
Seven black citizens who are registered to vote in Sumter County, South Carolina, at least one of whom was a party in Blanding v. DuBose, 454 U.S. 393, 102 S. Ct. 715, 70 L. Ed. 2d 576 (1982), move pursuant to Fed. R. Civ. P. 24 to intervene in this Voting Rights Act proceeding which is a sequel to Blanding. Some of the movants made representations to the Attorney General in opposition to the preclearance of the at-large voting method for Sumter County Council members at issue in Blanding. When the Attorney General first refused preclearance, Sumter County nevertheless continued to schedule at-large elections. Some movants and the United States sought to enjoin future at-large elections pending preclearance. After a three-judge District Court in South Carolina granted a preliminary injunction, but ruled for the County on the merits, the United States did not perfect its appeal; intervenors perfected theirs and prevailed in the Supreme Court on their contention that the Attorney General had not precleared at-large elections for the Sumter County Council. Blanding v. DuBose, supra.
Movants allege that they have an "intensely local" perspective with respect to the allegedly discriminatory effects and purpose of the change in elections methods effected by Sumter County that would be helpful to us and necessary to the full and proper resolution of this case.
Movants also allege that the United States defendants may or cannot adequately represent movants' interests because those interests may diverge from defendants' conception of the public interest. In support of this allegation movants point to the failure of the United States to pursue its appeal in Blanding, contending that if they had not protected their own interests in the Supreme Court they would have already lost the rights which they preserved there and now defend here. In addition, movants point to defendants' change in position in the instant proceeding on October 27, 1982, at which time defendants abandoned a contention that in order to obtain a declaratory judgment of preclearance under Section 5 of the Voting Rights Act plaintiffs must demonstrate that the voting procedure change did not violate section 2 of the Act.
Movants represent that they would enter the case subject to all outstanding orders, that they do not seek to reopen discovery, and that in making a factual record without delaying the trial, they would rely principally upon an opportunity to examine and cross-examine witnesses called by others, and not attempt to call any other witnesses, except by leave of court if special circumstances arise.
Plaintiffs oppose the motion to intervene as untimely, and urge that, if it is granted, movants' participation should be limited to the filing of a post-trial memorandum. Plaintiffs object to movants' failure to seek to intervene until the close of discovery and on the eve of argument on motions for summary judgment. Plaintiffs claim prejudice in that they would have conducted their discovery and prepared and evaluated their case differently if the movants had been parties earlier. For example, plaintiffs say they would have conducted more extensive discovery had they known that Section 2 would be at issue. Plaintiffs emphasize the time essence here because there have been no local elections in Sumter County for six years, pending resolution of this controversy. In addition to the difficulty of confronting a Section 2 issue without discovery, plaintiffs urge that movants' intervention would necessarily make the trial longer, and more complicated and, for plaintiffs at least, more expensive. See Plaintiffs' Memorandum in Response to Petition for Leave to Intervene (Dec. 13, 1982).
Movants rely on a long line of cases in which this Court has routinely allowed intervention by persons situated similarly to movants,
and point to at least one other case in which intervenors, and not the United States, made the only argument for their position in the Supreme Court. City of Lockhart v. United States, 460 U.S. 125, 103 S. Ct. 998, 74 L. Ed. 2d 863 (1982). Moreover, they cite authority that intervention should be allowed, even where the United States' interest is apparently parallel, upon a "minimal" showing that the United States' representation of the public interest as it views that interest "may" not adequately represent the movants' legitimate interest. See Trbovich v. United Mine Workers, 404 U.S. 528, 538-39 and n.10, 30 L. Ed. 2d 686, 92 S. Ct. 630 and n.10 (1972).
We are persuaded that, on balance, movants should be allowed to intervene on a limited basis. Although movants filed relatively late, they moved less than a month after defendants' abandoned the Section 2 issue. See Liddell v. Caldwell, 546 F.2d 768 (8th Cir. 1977). Plaintiffs have not explained why the discovery they conducted before October 27, 1982, (when the defendants' Section 2 argument was at issue) did not prepare them to deal with that issue. Movants do not seek discovery or to relitigate old issues, but only to participate prospectively, and to assure a vigorous response to plaintiffs' claim. See Natural Resources Defense Council v. Costle, 183 U.S. App. D.C. 11, 561 F.2d 904 (D.C. Cir. 1977). Their local perspective on the current and historical facts at issue could be enlightening to us. Finally, we are confident that we can effectively limit movants' cross-examination and other potentially time-consuming activities in the same way that we intend to control the presentations of the parties themselves so as to minimize the burden on them as well as on the Court, which unfettered intervention might otherwise entail.
The Section 2 issue cannot be ignored, at least upon first impression, and the intervenors will be permitted to pursue it, if they so desire, within the limits of their proposed intervention and such other limits as the Court may set. We may or may not be required to decide the Section 2 issue, but we will be better able to deal with it if we have evidence than if the argument were before us only in the abstract.
In passing the Voting Rights Act Amendments of 1982, Pub.L. No. 97-205, 96 Stat. 131-135 (June 29, 1982), Congress amended Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, to read as follows:
SEC. 2. (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
96 Stat. at 134. The Senate Report on the 1982 Amendments stated that: "In light of the amendment to section 2, it is intended that a section 5 objection also follow if a new voting procedure itself so discriminates as to violate section 2." S. Rep. No. 97-417, 97th Cong., 2nd Sess. (May 25, 1982) at 12 n.31, reprinted in 1982 U.S. Code Cong. & Ad. News 177, 189 n.31. In a Reply Brief to the Supreme Court in City of Lockhart v. United States & Cano, No. 81-802 (Oct. 1982) (filed by defendants in this action together with their Amended Memorandum on October 27, 1982), the United States noted the importance and complexity of the impact of the 1982 amendment of Section 2 on a Section 5 case: "Whether . . . the 'results' standard of Section 2 can properly be imported into Section 5 presents a complex issue which can be decided only after a comprehensive assessment of the statutory scheme and legislative history." Id. at 4. The United States also represented that "that inquiry should be performed in the first instance by [a] district court." Id.
In order to best address the issue, as preserved by the intervenors, but not delay resolution of the primary subject of this action which has precluded County Council elections in Sumter County for at least four years, the Court will allow intervenors to preserve the issue, ...