The opinion of the court was delivered by: EDWARDS
HARRY T. EDWARD, UNITED STATES CIRCUIT JUDGE, GERHARD A. GESELL, THOMAS PENFIELD JACKSON, UNITED STATES DISTRICT JUDGES
In this Voting Rights Act case, filed in December, 1983, for preclearance of a state legislative reapportionment plan enacted the preceding month, the State of South Carolina prays for declaratory judgment that Act 257 of its general assembly reapportioning its state senatorial districts in accordance with the 1980 Decennial Census is not racially discriminatory in purpose or effect. Defendants United States and the intervenor-defendant NAACP answered in early February, 1984, denying that Act 257 was non-discriminatory. The case is presently set for trial beginning October 22, 1984.
Shortly after joining issue the United States learned that South Carolina had begun implementation of Act 257 in advance of preclearance by allowing candidates to qualify with state election officials to stand for election in districts as Act 257 defined them. Unsuccessful in its efforts to persuade South Carolina to desist voluntarily, the United States moved to enjoin the process pending decision by this Court. On April 26, 1984, the Court held that Section 5 of the Voting Rights Act precludes activities in preparation for an election under an unprecleared districting plan as well as the election itself, and ordered that South Carolina and its agents "neither require nor permit" further action to be taken looking towards elections to be conducted in accordance with Act 257.
The Court is now informed that on June 13, 1984, one of South Carolina's political parties filed a separate action in the U.S. District Court for the District of South Carolina seeking to compel the responsible state officials to adopt an "interim" apportionment plan to govern state senatorial elections in this election year.
(Neither the United States nor defendant-intervenor NAACP is a party to the South Carolina case.)
The United States has, therefore, moved here for further injunctive relief, namely, an extension of the April 26th injunction to include an express prohibition of South Carolina's responsible electoral officials' either proposing or acceding to any "interim" plan in the litigation in South Carolina without first obtaining preclearance from this Court or the Attorney General. The United States says that it suspects that the South Carolina litigation is not altogether adversary. It anticipates that defendants there will put forth or acquiesce in proposals for an "interim" apportionment plan in South Carolina on or before July 25th which will resemble Act 257 in all significant respects. It foresees such an "interim" plan becoming a fait accompli by a decree in South Carolina which would govern this year's quadrennial state senatorial elections and, thus, determine the composition of the state's senate for the next four years, rendering any decision by this Court, following trial in October, of academic interest only until 1988.
South Carolina opposes the motion.
It says that a court-ordered "interim" plan does not require preclearance under Section 5 of the Voting Rights Act, and that it is powerless, in any case, to prevent the adoption of Act 257 as such by the South Carolina court if it determines to do so. It contends that this Court is without jurisdiction (and that venue is improper here) to order the relief the United States is seeking. And it urges that it would be "inequitable" to deprive it of Act 257 as a valid "defense" to the constitutional claims being made against it in the South Carolina case.
Congress has, for reasons which have been considered and found sufficient by the Supreme Court, conferred exclusive authority upon the U.S. District Court for the District of Columbia and the Attorney General of the United States to grant or withhold preclearance for apportionment plans in polities covered by the Voting Rights Act. McDaniel v. Sanchez, 452 U.S. 130, 147-51, 68 L. Ed. 2d 724, 101 S. Ct. 2224 (1981). Local federal district courts may, on occasion, be called upon to devise "interim" plans in exigent circumstances, but the "interim" plans they adopt should not put into effect the very plans being substituted which have failed of preclearance by the Attorney General or are awaiting a pre-clearance decision by this Court. Jordan v. Winter, 541 F. Supp. 1135, 1141-42 (D.C.N.D. Miss. 1982), vacated and remanded on other grounds, 461 U.S. 921, 103 S. Ct. 2077, 77 L. Ed. 2d 291 (1982). The district court in South Carolina may decide on its own to adopt at least the unoffending parts of Act 257 for state senatorial elections this fall, see Upham v. Seamon, 456 U.S. 37, 71 L. Ed. 2d 725, 102 S. Ct. 1518 (1982), but the state's officials should not be allowed, by collusion or capitulation, to evade the preclearance process by proposing the disputed plan or its suspect parts as a legally permissible "interim" alternative.
Far from being without jurisdiction to entertain the application of the United States for the further injunctive relief it asks, it is clear from the language of the statute itself and the interpreting decisions of the Supreme Court that, as an incident of the proceedings to determine whether Act 257 can go into effect, this Court is the only court in the land where the matter can be heard at all. 42 U.S.C. § 19731(b); Connor v. Waller, 421 U.S. 656, 44 L. Ed. 2d 486, 95 S. Ct. 2003 (1975); Perkins v. Matthews, 400 U.S. 379, 383-87, 27 L. Ed. 2d 476, 91 S. Ct. 431 (1971). And as for the equities, the true inequity would be done the defendants here if South Carolina were enabled to achieve the affirmative relief it has yet to prove itself entitled to in this Court by successfully advancing it elsewhere as a defense against more compliant adversaries.
It is, therefore, this 18th day of July, 1984,
ORDERED, that the motion of the United States for further injunctive relief ...