This case is now before the three-judge court upon motions by defendant United States and defendant-intervenor the National Association for the Advancement of Colored People, Inc. ("NAACP") to enjoin the State of South Carolina from implementing Act 257 of Acts and Joint Resolutions of South Carolina (1983) ("Act 257"), a state senate reapportionment plan which has not yet been precleared as required by Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c.
Defendants assert that notwithstanding the pendency of this action the State began to implement Act 257 by opening the candidate qualification process between March 16 and March 30, 1984, requiring political parties intending to hold primaries to accept candidacy notices for the state senate, the electoral districts in which the candidates will stand for election being defined by Act 257's redistricting plan.
South Carolina responds that "mere candidate filing" does not constitute implementation, but even if it does, it would be inequitable to enjoin it, and, in any event, the political parties which actually nominate senate candidates based upon the results of the primary elections are not before the Court and cannot, therefore, be forbidden to accept notices of candidacy.
The relevant facts, which are primarily the chronology of this litigation and the legislative acts of South Carolina since issue was joined, are not in dispute. On January 24, 1984, at plaintiff's behest, this Court established an expedited schedule which contemplated a resolution of the case in time for the primary elections as then set by state law for June 12th. Defendants' answers and initial discovery responses were timely filed by February 8th, from which it was apparent that both the Attorney General and the NAACP had objections of substance to Act 257.
On February 24th the Assistant Attorney General of the Civil Rights Division of the Department of Justice wrote counsel for South Carolina proposing that the parties enter into negotiations looking towards modifications of the redistricting plan which would obviate the Attorney General's objections altogether, or, alternatively, an agreement upon an interim plan for the 1984 elections which would leave the legality of Act 257 for later determination without unduly disrupting the state's normal electoral processes. He warned, however, that for the State to proceed with the process of candidate qualification beginning March 16th without such an agreement would, in the Department's view, be unlawful.
Almost simultaneously the South Carolina senate began consideration of a proposed joint resolution of both houses of its general assembly ("R. 321") which would postpone all state primary elections for a period of six weeks to July 24, 1984, to enable this case to be tried to completion and decided with sufficient time remaining for the candidates to campaign. It did nothing, however, about postponing the impending March 16-30 candidate qualification period, providing only that the process would be reopened at an unspecified future date should this Court withhold approval of Act 257. The legislation as ultimately passed by the general assembly and signed by the governor on March 8, 1984, postponed only the senate primaries, leaving the original March 16-30 filing period and the provisional reopening in the event of an adverse decision intact.
On March 12th South Carolina transmitted R. 321 to the Assistant Attorney General for preclearance, two days before senate candidates were to begin their submissions of notices of candidacy, by a letter from its attorney which left no doubt that the State was proceeding on its own with the candidate qualification process then imminent. It made no mention at all of the offer of conciliation.
On March 20th the Assistant Attorney General replied, interposing an objection to R. 321, including the postponement of the primaries to July 24th, and on the succeeding days, respectively, the NAACP and the United States filed their motions to enjoin South Carolina from "implementing" Act 257 "unless and until this Court rules that Act 257 . . . is entitled to Section 5 preclearance."
The parties' principal point of contention centers on the meaning of the concept of "implementation" of a change in voting procedures, with the United States and the NAACP arguing that it encompasses "commencement of any part of the election process" and South Carolina contending that it occurs at the earliest at some point after the candidate filing period, and perhaps even after the primary.
South Carolina assures the Court that it will not hold its state senate primary elections, now scheduled for June 12, 1984 (unless R. 321 is precleared, in which case they will occur July 24th), until Act 257 is precleared. Although it agrees not to conduct its primaries prior to preclearance, however, it clearly believes itself entitled and intends to conduct the antecedent activities necessary to prepare for them prior to preclearance, which include, we know, at the least the candidate qualification filing presumably completed on March 30, 1984, subject, of course, to reopening pursuant to R. 321. (The other activities are not specified by South Carolina, but we surmise they refer to such matters as printing ballots, reserving polling places, coordinating election judges, and advertising the elections). Only if it is allowed to conduct these activities now, the State asserts, will it be able to go forward with the primary elections whenever they are to take place.
Thus, this Court must determine whether candidate qualification filing and certain other steps being taken by the State of South Carolina in preparation for the primary elections constitute "implementation" of an unprecleared voting change. If they are, the United States asks the Court to declare the candidate qualification process invalid, require the State to establish an orderly election schedule to begin only after Act 257 has been precleared, and permit both candidates who have already qualified and others who may wish to do so after preclearance stand for election. South Carolina urges that not only would such an order be otherwise inequitable as well as unnecessary, it would upset the status quo.4
Section 5 of the Voting Rights Act provides that until a voting change is precleared by either the Attorney General or the District Court for the District of Columbia, "no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure [voting change]. . . ." 42 U.S.C. 1973c. Defendants contend that South Carolina cannot, absent preclearance, conduct any activities in preparation for the senate primaries without violating the Voting Rights Act.
They cite the seminal cases of Georgia v. United States, 411 U.S. 526, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1973); Perkins v. Matthews, 400 U.S. 379, 91 S. Ct. 431, 27 L. Ed. 2d 476 (1971); and Allen v. State Board of Elections, 393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969), for the proposition that voting changes may not be implemented before preclearance and elections will be enjoined if they are, but they rely primarily on Busbee v. Smith, No. 82-0665, Slip Op. (D.D.C. May 24, 1982) (order granting injunction), to support their assertions that "implementation" begins, specifically, with candidate qualification filing.
South Carolina's thesis that its candidate filing procedures implement only the precleared S.C.Code Ann. § 7-11-210 is specious. Aspiring senatorial candidates in South Carolina are filing to stand for election in districts laid out by Act 257, not by Section 7-11-210 (and not by the legislation it was enacted to replace), in order to prepare for what South Carolina hopes will be an early summer primary, occurring pursuant to a precleared Act 257, well before the general election in the fall.
It is obvious that South Carolina is implementing the unprecleared Act 257 through candidate filing procedures, as well as any other activities it plans in anticipation of the senatorial primary.
In the virtually identical Voting Rights Act case of Busbee v. Smith, No. 82-0665, Slip op. at 2, 5 (D.D.C. May 24, 1982) (order granting injunction), in which the State of Georgia had declared its intention to commence a congressional candidacy qualification period, this court enjoined actions which would implement the unprecleared act "in any fashion," including the opening of the candidate qualification period, and Georgia's application to, successively, the three-judge panel, Chief Justice Warren Burger, and Justice William Rehnquist for a stay of the injunction were to no avail. Busbee v. Smith, 549 F. Supp. 494, 497 n. 1 (D.D.C.1982), aff'd on other grounds, 459 U.S. 1166, 103 S. Ct. 809, 74 L. Ed. 2d 1010 (1983). This Court is satisfied, as was the Busbee court, that candidate qualification under an as yet uncleared districting plan ...