ALLEN v. STATE BOARD OF ELECTIONS

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Argument of Clerk

Chief Justice Earl Warren: Numbers 25, 26, and 36, J.C.Fairley, et al. versus Joe T. Patterson, et al.

Mr. Clerk, this isn't listed very well.

You'll have to be satisfied with what I've given.

We'll -- who is to address the Court first?

Mr. Clerk: Mr. Derfner.

Chief Justice Earl Warren: I beg your pardon?

Mr. Clerk: Mr. Derfner.

Chief Justice Earl Warren: Mr. Derfner, you may proceed with your argument.

Argument of Armand Derfner

Mr. Armand Derfner: May it please the Court.

The question in these three consolidated cases from the Southern District of Mississippi is how much room Congress intended to leave when it passed the Voting Rights Act of 1965 to allow the southern states covered by the Voting Rights Act to continue evading the guarantees of the Fifteenth Amendment.

The answer, we believe, is found in the provision of that Act which is involved in this case, Section 5 in which Congress, after having, in Section 4, outlawed any tests or devices when it was aiming primarily at that time literacy tests, went further and provided that no state covered by the Act might enact or seek to administer any voting qualification or prerequisite to voting where standard practice or procedure with respect to voting different from that in effect in 1964 -- November 1964 without seeking prior approval from either the Attorney General of the United States or getting a declaratory judgment from the District of Columbia -- from the United States District Court for the District of Columbia establishing that that new statute or regulation did not have a discriminatory purpose or effect.

The three cases here, Number 25, Fairley versus Patterson, 26, Bunton versus Patterson, and 36, Whitley versus Williams, all involve statutes which the State of Mississippi passed in 1966 at its first legislative session after the passage of the Voting Rights Act which, we claim, have the purpose and effect of discriminating and voting by reason of race and which are covered -- which are voting laws within the meaning of Section 5 and which -- as to which, there is no dispute that these statutes were not submitted to the Attorney General or for declaratory judgment.

In Number 25, Fairley versus Patterson, the legislature allowed a shift in the manner of electing -- allowed a county to adopt to shift its manner of electing the Board of Supervisors with the chief executive officers of the county from beat or district elections to at large elections.

Thus, allowing a county that might have one or more Negro majority beats to elect all White supervisors if it were a White-majority County as a whole.

In Number 26, Bunton, the legislature changed the office of county superintendent of education which have previously been elective to appointive post, and did so with respect to 11 counties of which 9 had Negro majorities.

Mr. Lichtman will argue Number 25 and Number 26.

In Number 36, Whitley versus Williams, the legislature adopted an amendment to Section 3260 which provides the manner by which independent candidates may gain -- may get on the ballot and, in effect, set up an obstacle course that was designed and had the effect of forcing independent candidates, except at great trouble and effort, to go into the democratic primary or a party primary and to avoid seeking to run as independents.

The background of 19 --

Justice Abe Fortas: Mr. Derfner, would you mind speaking a little bit closer?

Mr. Armand Derfner: I'm sorry, Justice Fortas.

Number 36, Whitley versus Williams, arose in 1966.

The statute involved an amendment to Section 3260, was passed in June of 1966 after Reverent Whitley and one other person had run in the democratic primary, Reverent Whitley having run for the Office of the United States Senator, having lost in the primary, and then indicating that he was interested in running in the general election.

At that point, the amendment was passed and it had this effect.

It multiplied the Number of signatures that a person must gain -- must get in order to gain a place in the ballot as an independent.

In the case of Reverent Whitley, the Number of signatures was multiplied by -- it was changed from 1,000 to 10,000 since it was a statewide office.

It required these signatures --

Justice William O. Douglas: How many registered voters are there in that state?

Mr. Armand Derfner: In Mississippi, at that time, there were probably in the neighborhood of 400,000 or 500,000 registered voters.

The second thing it did was to require that these signatures be submitted at a much earlier date than formerly.

The former practice -- former statute, 3260, had provided that the required signatures be submitted 40 days before the general election, in practical effect, the end of September.

The new regulation -- the new statute required that the signatures be submitted at the same time as one would qualify for running in the party primary.

Now, the statutes governing running in party primaries require that 60 days before the primary a candidate submit his intent -- notice of his intention to run and a filing fee of a small amount to the Executive Committee -- Executive Secretary of his party which means that, under the new statute, whereas someone wanting to run in a party primary had to submit by some date in April, say, $100 or $200 plus a notice of intention to run.

Reverent Whitley or whoever was govern -- whoever wished to run as an independent had to submit petitions with 10,000 or some-lesser Number of signatures, depending on what office was involved.

The third and, in some ways, the most significant effect was to impose a new requirement that one who had voted in a party primary could not, thereafter, run as an independent.

Finally, the new stat --

Justice Potter Stewart: Anyone who's ever voted in a pri -- party primary?

Mr. Armand Derfner: No, I think the statute means that one who has voted in the primary that year for --

Justice Potter Stewart: The last proceeding --

Mr. Armand Derfner: The primary --

Justice Potter Stewart: Or the primary --

Mr. Armand Derfner: The primary for which -- for the same office for which he is running.

Justice Potter Stewart: For this election.

Mr. Armand Derfner: That's right.

Chief Justice Earl Warren: Is that an uncommon provision in -- throughout the states?

Mr. Armand Derfner: I'm not familiar with that, Mr. Chief Justice, but I do know that that was not the provision in Mississippi before and there had been a Number of instances of people being unsuccessful in primaries and running in general elections.

There's a case called Bowen versus Williams which was cited in the brief, in which precisely that happened.

And, the Supreme Court of Mississippi held that there was no impediment to that being done.

Chief Justice Earl Warren: I suppose that was under existing law.

Mr. Armand Derfner: That's right.

There is a Section 3129 in the Mississippi Code which imposes a pledge of loyalty to anyon -- on anyone voting in a party primary, but that's been held not to be enforceable in connection with his running as an independent candidate.

That was the case that I was referring to.

Justice Byron R. White: Now, Mr. Derfner, what is -- the prohibition is against running as an independent, if what?

Mr. Armand Derfner: If you have voted --

Justice Byron R. White: If you have voted in the primary?

Mr. Armand Derfner: That's right.

Justice Byron R. White: Not if you ran in the primary, but --

Mr. Armand Derfner: There is no prohibition in the statute against running as an independent if you have merely run but not voted in the primary.

Nonetheless, one of the record shows that at least one of the people who was kept off the ballot in 1967 was kept off because he had run in the primary, though not voted.

We d -- that does not appear to be, however, what the statute says.

Chief Justice Earl Warren: Do you attack both the merits of the situation as well as the fact that they should've gone to the Attorney General, or do you just say they should've gone to the Attorney General?

Mr. Armand Derfner: No, we believe, Your Honor, and in fact we -- I don't think we'd be here if we did not believe that this was a statute that violates the Fifteenth Amendment of the United States.

We believe that --

Chief Justice Earl Warren: Is that before us?

Mr. Armand Derfner: No, Your Honor.

All that is before you is whether this is a law with -- a law that imposes a voting prerequisite or qualification or standard practice of procedure with respect to voting.

If you decide that it is, then the statute cannot, could not have been, and cannot be put into effect until the federal clearance either through the Attorney General --

Chief Justice Earl Warren: Is that the sole issue in the case?

Mr. Armand Derfner: That is the sole issue.

Justice Thurgood Marshall: You did originally relied on the Fifteenth Amendment also.

Mr. Armand Derfner: The Fifteenth Amendment was in our pleading.

Justice Thurgood Marshall: Why did you take it out?

Mr. Armand Derfner: We took it out, Justice Marshall, because we -- in 1967 when this case came up for the second time, the case came up in September, we did not believe we had enough time at that point to put on a case with respect to the Fourteenth and Fifteenth Amendments.

And so, at that time, though the Fourteenth and Fifteenth Amendment claims remained in the case, and they do remain in the case, now, we entered a stipulation with the appellees, with the Attorney General, that the only issue before the District Court at that time was the issue of Section 5.

This means, by the way, that we would maintain that the constitutional issues are still in the case that Section 2281 did and does apply and that, wholly apart from any question of Section 5, we were and are entitled to a three-judge Court and, therefore, that this Court would have jurisdiction by direct appeal.

We did not mean, in any way, to take the Fourteenth and Fifteenth Amendment issues out of the case, and we believe, in fact, that we could prove that if we were put to it.

Justice Thurgood Marshall: But you actually did.

Mr. Armand Derfner: Pardon me, Your Honor?

Justice Thurgood Marshall: What did the stipulation say?

Mr. Armand Derfner: The stipulation, which is in the record at -- it's an appendix to the opinion of the three-judge Court appearing on page 39 of the record here, paragraph 5, that the only issue before the Court at this time is whether or not House Bill 68, amended Section 3260, is an attempt by the State of Mississippi to enact or seek to enact to administer any voting law within the meaning of Section 5.

There's nothing in the stipulation and nothing else anywhere in the case that indicates that the constitutional issues are no longer in the case.

The final requirement of the new Section 3260 was that every vote -- every signature on the petition had to be in the petitioner's own hand -- own handwriting.

And, while it's not clear -- while this specific provision has not been at issue or been the specific issue involved in any of the cases in the record and it's not clear just how far this goes, we think it is open to the interpretation, and a fatal interpretation, that this require -- that this would prohibit illiterates from signing petitions on behalf of independent candidates.

After the statute was passed, Reverent Whitley and two others who were kept off the ballot submitted petitions to run as independent candidates in the fall of 1966.

They were ruled off the ballot not because they had not complied in time or because they had voted in the primary as to both of which this would've been an expos facto law, but because they had not submitted sufficient signatures.

At that point, in the fall of 1966, we filed this suit on -- as a class action on behalf of Reverent Whitley and the two others in their capacity, both as voters and as candidates, and the three-judge Court at that time, without going into any of the statutory or constitutional issues, as an exercise of its equity, jurisdiction, and discretion ruled that these three candidates should be placed on the ballot.

In 1967, the situation arose again, and at that point, as the record shows, there were at least 16 candidates ranging from people who were running for Justice of the Peace in various counties, all the way to Mrs. Fannie Lou Hamer who sought to run for state senate from Sunflower County who had been ruled off the ballot.

I should mention that the 1967 elections were the statewide elections in which virtually all state offices were being chosen.

This was the first time in modern history that any substantial Number of Negro candidates had run or sought to run.

It was also the first time in modern history that any -- that, with the exception of a single Negro community in Mississippi, that any Negro candidates have been elected.

These 16 people or more were kept off the ballot for various reasons, although they had complied or would've complied with the old provisions of Section 3260.

At that time, we brought the suit on again and, this time, the three-judge Court ruled against us.

And, it was from that decision which held essentially that Section 3260 dealt only with elections or with candidates but not with voting, that this appeal was taken.

The point of this appeal, we submit, is very much like the point in Williams versus Roads decided by this Court yesterday in which the Court said dealt -- dealing with the right of the American Independent Party to be on the ballot, spoke of the Ohio provision as a burden on the right of qualified voters regardless of their political persuasion to cast their votes effectively.

I think it's significant that Section 3260 is the first -- one of the first major attempts by the State of Mississippi to deal in any significant way with the problem of general elections.

Mississippi, is perhaps the most or certainly one of the most confirmed of the one-party states of this nation, has always paid a great deal of attention to regulation of primary elections than to regulation of general elections.

The two outstanding examples of that are the Corrupt Practices Act which, in Mississippi, applies only to primary elections and not to general elections and the requirement of the runoff which, again, applies only to primary elections and not to general elections.

The tradition in Mississippi has always been that whoever wins the primary is essentially the winner of the general election.

In most cases or many cases in recent history, there has not been any opposition at the general elections.

At the same time, with the passage of the Voting Rights Act of 1965, a new factor came into Mississippi politics and this was the Negro voter.Prior to 1965, various figures in the reports of the United States Civil Rights Commission, other figures indicated that something like 7% of the eligible Negro voters in Mississippi were registered to vote.

After the --

Justice John M. Harlan: Am I wrong in thinking that the precise issue we got before us is to the scope of the provision of the statute which refers to qualifications and prerequisites to voting or standards and practices and procedure?

Mr. Armand Derfner: That's right, Your Honor.

Justice John M. Harlan: It's a question of the interpretation of the coverage of that provision.

Mr. Armand Derfner: Yes, Justice Harlan.

Justice John M. Harlan: Your argument, so far, seems to go to the merits of this statute.

Mr. Armand Derfner: No, because we --

Justice John M. Harlan: What do you contend the statute covers?

Mr. Armand Derfner: We believe that Section 5 was intended to cover to be every bit as broad as the Fifteenth Amendment itself, that when Congress passed the Voting Rights of -- Act of 1965 they knew full well that this was -- that they had been relatively unsuccessful in guaranteeing the provisions of the Fifteenth Amendment before that.

They had tried in 1957, in 1960, and in 1964.

We believe that what Congress sought to do in 1965 was to ensure that they would not have to pass a Voting Rights Act of 1966 because they knew that on each occasion, when they had passed legislation before that, the states that they were aiming at had then come up with another new provision that had not been covered by the Act.

And so, we think that Section 5 was passed very broadly in order to cover everything possible that could be covered the Fifteenth Amendment.

Justice John M. Harlan: Would it encompass things in your view that would not be unconstitutional in the Fifteenth Amendment?

Mr. Armand Derfner: Section -- well, Section 5 would -- the final determination of the United States District Court for the District of Columbia would cover only things that were -- no, let me put it this way.

With the exception of the placing of the burden of proof, I believe that Section 5 would be the same as the -- would cover only or would prohibit after clearance only things that were in violation of the Fifteenth Amendment.

In other words --

Justice Byron R. White: A good faith literacy test itself would not be, in it of itself, violate the Fifteenth Amendment.

Mr. Armand Derfner: Right, a good faith --

Justice Byron R. White: And held --

Mr. Armand Derfner: A good faith --

Justice Byron R. White: And yet, obviously, would come under Section 5, wouldn't it?

Mr. Armand Derfner: No.

Well, it would come under Section 5 in the sense that it would have to be cleared --

Justice Byron R. White: Yes.

Mr. Armand Derfner: Under provisions of Section 5.

I took Justice Harlan's question to indicate what would be clear to what would not be clear under Section 5, and a good faith literacy test would be cleared since it would not --

Justice Byron R. White: I addressed you as to what specifically is the sweep of the Act.

A fine question has to go to a District of Columbia Court.

Mr. Armand Derfner: I think the kind of question that has to go to the District of Columbia Court is any question relating to voting, whether it discriminates or not.

Justice Byron R. White: And whether it violates the constitution.

Mr. Armand Derfner: That's right.

Justice Byron R. White: It would be reapportionment of the provision.

Mr. Armand Derfner: Yes, Justice White.

We think that reapportionment is one of the most significant examples of this.

Any situation in which the state does anything which has the potential of depriving somebody of the right to vote on base of race or abridging --

Justice Byron R. White: All reapportionment cases -- the constitutionality of all the reapportionment statutes must be submitted, is that so?

Mr. Armand Derfner: Not all reapportionment cases, Justice White.

I think Mr. Lichtman will be dealing in somewhat more detail with the reapportionment question.

Justice Byron R. White: Which one would?

Mr. Armand Derfner: Only reapportionment cases from the covered states --

Justice Byron R. White: Yes.

Mr. Armand Derfner: Would be going through.

Justice Byron R. White: Alright, all --

Mr. Armand Derfner: All those rea --

Justice Byron R. White: All the reapportionment cases from the covered states would have the constitutionality passed upon by District of Columbia Court.

Mr. Armand Derfner: That's true.

Every reapportionment case would have to be passed on not -- but not necessarily by the District of Columbia Court.

In most cases, it could be done, and I believe it has been done --

Justice Byron R. White: By the Attorney General.

Mr. Armand Derfner: By the Attorney General.

And, I think the Attorney General's information indicates that there had been a great Number of submissions of reapportionment plans and that all of these have been approved.

So that, in most -- and we think it's quite proper that where you have a reapportionment plan, you have the best -- you have, in a sense, the most convenient opportunity for a state to discriminate with re -- in voting with respect by -- on the basis of race in a way that seems innocent.

And, we believe that where that is in fact innocent, that there will be no trouble, and where it is not in fact innocent, that is perfectly proper to have the state be required to pass muster by submitting it to the Attorney General and, if he disapproves, to decla -- to seeking declaratory judgment in the District of Columbia.

Justice Byron R. White: Now, where does -- where -- what words in the Act do you think cover your case?

Mr. Armand Derfner: My own case, Number 36, will be covered by standard practice or procedure with respect to voting.

We think that --

Justice Byron R. White: With respect to voting?

Mr. Armand Derfner: Yes, we think that, as in Williams versus Roads, the question of who gets on the ballot is so closely related to the question of who the voter can vote for and how he can make his vote effective, that it is a question of standard practice or procedure with respect to voting.

Justice John M. Harlan: Why doesn't it cover quality of cases too?

Mr. Armand Derfner: Pardon me, Justice Harlan?

Justice John M. Harlan: Why doesn't it cover the quality of cases too with respect to voting?

Mr. Armand Derfner: I believe it does, Justice Harlan.

That if, for example --

Justice John M. Harlan: A man who runs in the ballot no longer votes.

Justice Byron R. White: That's a little hard.

Mr. Armand Derfner: I think it would cover that, Justice Harlan.

That, again, is a sort of question that should be submitted to the Attorney General.

I think, quite possibly in that situation, if they were not a racial cast to it, that that's the sort of thing that the Attorney General would approve.

Justice John M. Harlan: Isn't that right?

Chief Justice Earl Warren: It could be true.

Mr. Armand Derfner: No, I think a statute like that should be submitted, that it is covered by Section 5.

You can think of the example, suppose -- take the Grandfather Clause case for this Court when -- and its progeny.

Suppose the statute said not simply that one who is the -- was eligible to vote in 1867 was the ancestor of one who was eligible to vote may vote without registering, one who is not may not.

Suppose the statute said one who was eligible to vote in 1867 may run for office as an independent or may run for office, if he was not so eligible to vote or his ancestor was not then he may not run for office.

We think that's precisely the sort of thing that is covered by Section 5.

I might say in this connection that the appellees have talked about the language of Section 5 as being somewhat narrower.

They've talked about the use of the word "comply" in the second sentence of Section 5, and they've said "unless and until the clearance is obtained, no person shall be denied the right to vote for failure to comply."

We think, there, that the words "comply" were not intended to be and should not be read as limiting the terms "voting standard, practice, procedure, prerequisite, or qualification."

The word comply,taken in its most logical sense there, would apply to the qualification or prerequisite.

It would not be an Act limiting phrase with respect to the phrases "standard practice or procedure" which were inserted in the Act after its introduction.

For example, we can think of examples that I think would, even more clearly than these cases, be covered by this -- by Section 5 as to which the word "comply" would not be an appropriate word, and these have to do, for example, with various actions of the election officials.

For example, chan -- a law changing the counting of the ballots from a public counting to a secret counting, or a law changing the polling places from public buildings or public places to private places, thus, allowing polling places to be held in -- on plantations or stores or what have you or, for example, a law that abolish the use of poll watchers.

All these, I believe, it would clearly come within Section 5 and these do not fit as clearly within the use of the word "comply."

I think those are good examples showing why the word "comply" should not be read as limiting the statute.

I think the coverage of Section 5 is the fact that all these statutes may have to be submitted for approval is not one that should be regarded as a reason to narrow the scope of Section 5.

Certainly, it's strong medicine but Congress knew when it passed Section 5 that it was dealing with a virulent disease and the very fact that great Numbers of submissions have come to the Attorney General from -- in almost every case from states other than Mississippi, I think, indicates that Congress meant for the easy statutes, the obvious statutes, the statues that were constitutional to sail through, and they have sailed through, but Congress meant to put a block on the states from monkeying around with the Fifteenth Amendment from doing the things that they have been doing that previous statutes had failed to curve, and --

Justice Abe Fortas: Do you know whether Mississippi submitted anything to the Attorney General under the statute?

Mr. Armand Derfner: I think the Attorney General's records indicate, according to my information, that only one matter has ever been submitted from the State of Mississippi and that was not done by the State of Mississippi but by the Board of Supervisors of a Single County.

Chief Justice Earl Warren: Mr. Lichtman.

Argument of Elliott C.lichtman

Mr. Elliott C.lichtman: Yes, Justice --

Chief Justice Earl Warren: Mr. Lichtman, you may proceed.

Mr. Elliott C.lichtman: May it please the Court.

In November 1963, five White persons were elected members of the Boards of Supervisors, the principal governing officials in Adams and Forrest Counties, Mississippi, the counties involved in Fairley versus Patterson, Number 25.

At that time, Negros were almost totally disenfranchised in Mississippi.

In August of 1965, the Voting Rights Act was passed and, by June 1966, it was estimated that 132,000 Negros were registered to vote in Mississippi.

About the same time, the Mississippi legislature amended Section 2870 of the Code and presented those five supervisors -- those five White supervisors in Adams and Forrest Counties with a vehicle or device to continue themselves in office, that is, the legislature gave those supervisors the option or the power to adopt an order switching from a district-by-district election system to an at large system in the county.

Therefore, in Adams County where census figures show that Negros have a majority in beats 2 and 4, in fact, a 2-1 majority in beat 4, and where census figure shows that Whites have a countywide majority, the supervisors who were elected in November of 1963 were given a vehicle by which they could stay in power.

And, in Forrest County, the other county involved in Fairley versus Patterson, where beat 3 was closely divided in 1960 and where Negros now claims a slight voting majority and where Whites have a heavy countywide voting majority, the supervisors who were elected in 1963 also chose in 1966 an at large system.

A close look at this statute, Section 2870 as amended in 1966, shows that a simple majority of the supervisors, three out of five, may order an at large election where it serves their interest.

In other words, suppose a Negro were elected supervisor in one of those two counties.

For the next election, the remaining supervisors, those remaining supervisors could adopt a countywide at large system and ensure the defeat of that Negro supervisor elected prior to the at large system.

To be sure, the statute, if you look carefully at it, contains a referendum pet -- provision, but it's hardly a safeguard here, where we can expect the countywide White majority in that referendum to ratify the decision of the supervisors to go at large.

Mississippi answers "look how malapportioned we were.

Our population -- our districts were very uneven in population terms, and we're only complying with the one man-one vote mandate of the United States Constitution."

First of all, as Justice Harlan indicated earlier, the issue before this Court is not the precise motivation of the supervisors.

That is the question for the Attorney General upon submission or for the District Court for the District of Columbia.

The question for this Court is, given the real possibility that this amendment to Section 2870 is a vehicle or a device to perpetuate the disenfranchisement of Negros, does Section 5 in its broad sweep cover the new law?

Appellants in Number 25 submit that this is exactly what Congress intended.That Congress intended, once and for all, to make the Fifteenth Amendment effective but, to do so, Congress concluded that any new statute relating to the effectiveness of the right to vote, that any new statute such as this, must be scrutinized by the Attorney General before it becomes operative.

In Number 26, the second case, about which I shall speak, the Bunton case, we are dealing with a 1966 amendment for which Mississippi has offered no explanation.

The old law was simply that old -- that all county Superintendents of Education, surely the most important single educational official in the count, the person in charge with carrying out the mandate of this Court and of the constitution to integrate schools, the old law was that this official, the county Superintendent of Education, was elected unless 20% of the voters petitioned for an election on the question of whether or not to make it appointed.

Suddenly, 10 months after the passage of the Voting Rights Act, in August of 1965, 11 of Mississippi's 82 counties were, in effect, told "your county Board of Education shall appoint your superintendent of education," and the record shows that 9 of those 11 counties have Negro majorities.

Justice John M. Harlan: According to the law that went across the Board, in other words, Mississippi had said they were now going to go to an appointed system.

The school superintendent throughout the state will be appointed.

Mr. Elliott C.lichtman: Our position, Justice Harlan --

Justice John M. Harlan: And, that would've been --

Mr. Elliott C.lichtman: Our position, Justice Harlan, would be that that, too, should be submitted to the Attorney General of the United States.

I think the chances are excellent that if Mississippi had complied with Section 5 and had submitted that law, the Attorney General would not have objected within 60 days and the law would've gone into effect.

Chief Justice Earl Warren: Is there any population relationship to these 11 counties to the others?

In other words, are they the 11 largest or the 11 smallest or anything of that kind?

Mr. Elliott C.lichtman: The counties, I believe, are spread throughout the state, but Negros only constitute 43% of the population of all of Mississippi and the c --

Chief Justice Earl Warren: No, that wasn't the question I asked.

Can it be said that the -- that this was done because of the size of the county, the mere size?

Are these 11 -- do these 11 happen to be either the largest county -- 11 counties of the state or the smallest or --

Mr. Elliott C.lichtman: I think they do not, Chief Justice Warren.

I think the --

Chief Justice Earl Warren: They just take control?

Mr. Elliott C.lichtman: The only common element is that Negros happen to be in the majority in 9 of 11 of the counties.

Chief Justice Earl Warren: I see.

Justice Byron R. White: Are they in the majority in any other counties?

Mr. Elliott C.lichtman: They are in the majority in a few others.

They have 43% of the population in the total state.

Justice Byron R. White: Well, is it very relevant in this?

Mr. Elliott C.lichtman: Well, our point, Mr. Justice White, is that this statute withdrew the right to vote from the electors of those counties.

Our position is that, given the rather strong possibility that there might have been a discriminatory motive, this is just the kind of case Congress wanted -- just the kind of statute Congress wanted submitted to the Attorney General for his scrutiny.

Justice Byron R. White: It wouldn't make any difference what the racial makeup was in terms of the statute.

Mr. Elliott C.lichtman: I think that's correct, but I think the particular facts are illustrative of what Mississippi is trying to do.

But, technically,Even if the counties were split evenly, Black and White, the new law would still have to be submitted to the Attorney General.

Justice Potter Stewart: Mr. Lichtman, when you answered Mr. Justice Harlan that you thought a statute submitted to the Attorney General would've been approved, now was that answer with relation to the question he put to you namely a statewide statute or are you saying that at this statute?

Mr. Elliott C.lichtman: I was answering, I thought, his hypothetical question which referred to a statewide statute.

Justice Potter Stewart: But you -- is that your view?

Mr. Elliott C.lichtman: Well, in this case --

Justice Potter Stewart: Saying it might have happened as to this statute?

Mr. Elliott C.lichtman: In this case, I would prefer to allow the Assistant Attorney General to answer the question.

My guess is that he will want to scrutinize this very carefully.

I don't know what position he will take on, but the point is Mississippi had --

Justice Potter Stewart: In any event you're not making any submission that this one ought to have clearance from the Attorney General.

Mr. Elliott C.lichtman: Oh, absolutely not.

Justice Potter Stewart: On the other hand, I don't see why you need to make any submission that this may be violative of the Fifteenth Amendment or may be discriminatory, or anything else.

It seems to me that, as you read Section 5, that any change since -- from the way -- from the status quo of November 1, 1964, no matter how enlightened, no matter how well-motivated, and no matter how trivial is covered by the language of the statute and, from then on, it's up to the Attorney General.

And, if he acts then if people are dissatisfied with his decision, then it's up to the United States District Court for the District of Columbia.

Mr. Elliott C.lichtman: I think that's correct.

Justice Potter Stewart: Why do you have to submit to us that this may be a discriminatory or an evilly motivated change?

If you're right about the meaning of the -- of Section 5, it could be the most purely motivated, the most progressive, and enlightened or, as I say, the most trivial change in the world, and yet it comes under Section 5.

Mr. Elliott C.lichtman: I think that's correct, Justice Stewart.

Our point in going into the facts at all is that we know why Congress passed the statute.

The language of Section 5 is very broad.

We're really trying to show that this is the kind of thing Congress had in mind, but I agree with you that the statute could be very enlightened and, nevertheless, Attorney Gen -- the State of Mississippi, one of those half-a-dozen states or so covered by the Act, would have to submit it to the Attorney General.

Justice Byron R. White: You would be making the same argument if Mississippi just revealed this law now, would you?

Mr. Elliott C.lichtman: That's correct, Justice White.

Justice Hugo L. Black: Suppose, instead of delegating his authority to the Attorney General, he had delegated it to the Chief Justice of the United States or to the Court as a whole.

What would you say about that?

Mr. Elliott C.lichtman: I think our position would be the same, Mr. Justice Black, I think the Attorney General, however, is particularly equipped since he has a Civil Rights Division to make this type of inquiry, but our position would be the same if the statute had been so-written.

Justice Hugo L. Black: Of Course, Marbury versus Madison held it was this Court who had judicial review, not the Attorney General.

Mr. Elliott C.lichtman: Of course, the District Court for the District of Columbia, if the Attorney General Objects, will then make the judgment as to whether or not the declaratory judgment should issue and whether or not the new law should go into effect and, of course, Mississippi could appeal from the District Court for the District of Columbia up to this Court.

Justice Hugo L. Black: Suppose instead of the District of Columbia the Act had said the first -- the District Court in Maine.

Mr. Elliott C.lichtman: Well, Justice Black, I would agree that the point here is that someone is scrutinizing these statutes before they go into effect and it's --

Justice Hugo L. Black: Well, that would be alright, wouldn't it, the District Court in Maine?

Mr. Elliott C.lichtman: I think so, Your Honor.

As I stated, Mississippi has offered --

Justice Hugo L. Black: I suppose you propose another Section by --

Mr. Elliott C.lichtman: Excuse me.

Justice Hugo L. Black: Some issue in Maine, all the laws become effective in Maine.

They must be submitted to a District Judge in Mississippi.

Mr. Elliott C.lichtman: Congress, in its wisdom, could do that, Mr. Justice Black.

Justice Hugo L. Black: It could.

Mr. Elliott C.lichtman: I believe.

Justice Hugo L. Black: Well, I agree with you.

If it can do this, it can do that.

Mr. Elliott C.lichtman: Justice White asked Mr. Derfner earlier about reapportionment, and I would like to address myself to that for a few moments.

Appellants in Fairley make no attempt to distinguish our case or to distinguish Section 5 from reapportionment cases.

Our position is that Section 5 was intended to cover any new statute which relates to the effectiveness of the right to vote.

Section 5 was drafted because of the constant attempts by the state, by the Southern States to "out-guest" the Federal Courts, the Justice Department, and the Congress.

Justice John M. Harlan: You agree the statue isn't worded that broadly.

Mr. Elliott C.lichtman: Well, we are reading --

Justice John M. Harlan: Because what Congress had in mind was reverted as you say so.

Mr. Elliott C.lichtman: We're reading essentially, Justice Harlan, Section 14 which defines voting with Section 5.

Section 14 defines voting as all action necessary to make a vote effective in an election.

We're reading that language into 5 to justify our broad reading.

Voting cases prior to the passage of the Voting Rights Act of 1965 were very difficult to prove.

They were monumental to try and, let's face it, the old laws were not working.

Negros were not getting enfranchised in the southern states.

A reapportionment case is precisely the same kind of case.

It's difficult to prove and it's monumental to try.

Moreover, because the state can justify its new law as an attempt to comply with the one man-one vote mandate of the constitution.

There is the constant danger that this justification will be only a foci, but the real purpose will be a discriminatory purpose and, therefore, there's a special need to scrutinize those statutes which appear to be reapportionment plans.

Now, I'm sure this Court would be concerned about any potentially disruptive or burdensome effect on reapportionment plans, but we don't think there will be any.

The local District Court and the legislature will create the reapportionment plan just as before.

There will be no change.

The only change is that in those states that are covered by the Act, before the plan goes into effect, it must be submitted to the Attorney General.

Justice William J. Brennan: Are you suggesting that they perpetuate if a District Court in Mississippi directed a reapportionment plan that could not be made effective until it clears the Attorney General or the District of Columbia District Court?

Mr. Elliott C.lichtman: That is our position, Mr. Justice Brennan.

I think Mr. Pollak, the Assistant Attorney General, will relate to you that South Carolina, among others --

Justice William J. Brennan: I'm not speaking -- I'm speaking not of a reapportionment plan enacted by the Mississippi legislature than the absence of one of a reapportionment plan directed by a Mississippi District Court.

Mr. Elliott C.lichtman: Well --

Justice William J. Brennan: Even that one, you say, will --

Mr. Elliott C.lichtman: I think the statute can be read not to cover those types of reapportionment plans.

I don't think this Court need reach that question.

I think the question in this case is merely a statute passed by the legislature.

Justice Hugo L. Black: And that, you say, would have to be submitted to the Attorney General.

Mr. Elliott C.lichtman: Well, if I had to reach that question, my position would be that before the state makes that new plan effective, it would have to clear it with the Attorney General, but I think this Court can avoid reaching that question.

That's not presented in this case.

Justice Byron R. White: It may not -- the question of Court made plans.

Mr. Elliott C.lichtman: Exactly.

Justice Byron R. White: But, legislative plans --

Mr. Elliott C.lichtman: Right.

Justice Byron R. White: You --

Mr. Elliott C.lichtman: That's presented by this --

Justice Byron R. White: We're necessarily deciding this one.

Mr. Elliott C.lichtman: I think that's presented by the Fairley case.

Justice Potter Stewart: Legislative or, clearly, any political subdivision.

Mr. Elliott C.lichtman: Yes, that's correct.

Now, I think Mr. Pollek will say or -- that South Carolina and other states have submitted reapportionment plans and that none have been objected to so far.

Justice Byron R. White: Well, has the District of Columbia Court then got jurisdiction to pass on new apportionment plans in the covered states?

Mr. Elliott C.lichtman: I would phrase it this way, Mr. Justice White, if --

Justice Byron R. White: You think the jurisdiction of all the other District Courts have been --

Mr. Elliott C.lichtman: No, I think the local District Court in Mississippi will play the same role that it played before.

It will work out the plan if the legislature is unable to.

Before the new plan goes into effect, it must be submitted to the Attorney General of the United States.

He then has succeeded into --

Justice Byron R. White: Or the District Court.

Mr. Elliott C.lichtman: Or the District Court, right.

If the Attorney General objects, only in that case --

Justice Byron R. White: Well, why isn't the --

Mr. Elliott C.lichtman: Does the question go before the District Court of the District of Columbia.

Justice William J. Brennan: Well, let's see though.

If -- let's assume a legislature legislatively adopt a plan of Mississippi, a challenge to it in the Federal District Court in Mississippi ultimately, let's assume, an approval of the plan.

Suppose it's then taken directly here, a three-judge Court --

Mr. Elliott C.lichtman: With approval, Your Honor, by the Attorney General?

Justice William J. Brennan: No, by the three-judge District Court.

Mr. Elliott C.lichtman: Excuse me.

Justice William J. Brennan: It comes here and we affirm it.

Now, you say, nevertheless, Mississippi can't make it effective.

Mr. Elliott C.lichtman: Before --

Justice William J. Brennan: Without going to the Attorney General for his approval and thereafter, if he denied it, getting a declaratory judgment from the District Court of the District of Columbia, then comes to the Court of Appeals, and then back to us?

Mr. Elliott C.lichtman: Except, Your Honor, the -- I just can't conceive, in a situation like that, of the Attorney General objecting.

Everyone has scrutinized the plan for both Fifteenth Amendment violations, as well as Fourteenth Amendment violations.

Justice Abe Fortas: We don't really have any such case before us, do we?

The Fairley case is not the usual kind of reapportionment case because that was a case in which just a selected Number of counties were involved, isn't that right?

Mr. Elliott C.lichtman: I think that's right, Mr. Justice Fortas, and --

Justice Abe Fortas: And it was not -- is it stated that that statutory change in the Fairley case was adopted to comply with any requirements of this Court?

Mr. Elliott C.lichtman: Certainly not.

I'm addressing myself to this issue only because appellees in Fairley claim that that's why they did it.

Justice Abe Fortas: But is there anything in --

Mr. Elliott C.lichtman: But, that's actually not the question.

Justice Abe Fortas: Is there anything in the legislative history of Mississippi in the adoption of this statutory change that would say that?

Mr. Elliott C.lichtman: I think the legislative history is silent on the point and Mississippi has --

Justice Abe Fortas: And, here, you have only --

Mr. Elliott C.lichtman: Has --

Justice Abe Fortas: Here, you have only a few counties, don't you?

Mr. Elliott C.lichtman: Right.

Justice Abe Fortas: And, aren't there other counties in Mississippi that are divided into districts?

Mr. Elliott C.lichtman: All coun --

Justice Abe Fortas: For this purpose?

Mr. Elliott C.lichtman: All counties are divided into districts, yes.

Justice Abe Fortas: And so, only a few of them were affected by this statutory change.

Mr. Elliott C.lichtman: Well, the statute created the option for all of the counties to do this.

To my knowledge, only a half-dozen or so have done it.

Two of those are involved in this case.

Justice Abe Fortas: It's the state's contention that --

Mr. Elliott C.lichtman: That there --

Justice Abe Fortas: Giving the county to narrow it -- it's the state's contention anyway, that all the counties the option to adopt this was compelled by decisions of this Court.

Mr. Elliott C.lichtman: Well, they suggest that, in June of 1966 when they did this, that that was their motivation, and that's why I'm addressing myself to these issues, but they have injected the reapportionment question into the case and I feel that it may trouble the Court and, for that reason, I'm addressing myself to it.

Justice Hugo L. Black: What relief is asked?

Mr. Elliott C.lichtman: Mr. Justice Black, our relief is based on several cases, principles brought forth in several cases.

We ask that this Court order Mississippi to comply with Section 5.

That this Court --

Justice Hugo L. Black: And to submit to the Attorney General.

Mr. Elliott C.lichtman: That's correct.

Now, we could also ask --

Justice Hugo L. Black: But then, what?

Mr. Elliott C.lichtman: Well, the question arises should they set aside the old elections and should they have new elections.

Justice Hugo L. Black: What election was this?

Mr. Elliott C.lichtman: In November of 1967, in the two counties that are affected in Fairley, they held at large elections.

Justice Hugo L. Black: Now, would they have to waive them until the Attorney General passes on it and then it's attacked at Court?

Mr. Elliott C.lichtman: Now --

Justice Hugo L. Black: The Court of Appeals, then it comes to us?

By that time, it probably --

Mr. Elliott C.lichtman: Well, Mr. Justice Black, if the Attorney General does not object within 60 days, I think that's the end of the matter.

Justice Hugo L. Black: What if he did?

Mr. Elliott C.lichtman: If he does object within 60 days, he will have good reasons for doing so, I am sure, and I think the District Court for the District of Columbia in that case ought to scrutinize it and I think new elections ought to be held as soon as the Attorney General objects.

Justice Hugo L. Black: Well, can the Court of Appeals review the District Court?

Mr. Elliott C.lichtman: Well, you do get -- if we wait that long, we'll get into the 1971 election.

For that reason --

Justice Hugo L. Black: That's what I thought.

Mr. Elliott C.lichtman: For that reason, our position is that, Number one, this Court should order Mississippi to comply with Section 5, i.e., s --

Justice Hugo L. Black: How could that be done before the Court rules on it?

Do you mean that the Act authorizes the Attorney General void a statement that is bad to notify the state law?

Mr. Elliott C.lichtman: Well, the --

Justice Hugo L. Black: Make the judgment.

Mr. Elliott C.lichtman: The Court has two alternatives, Mr. Justice Black, in my view.

If they --

Justice Hugo L. Black: He can't command a final judgment, can he, that the state law is void?

Mr. Elliott C.lichtman: But he can render a final judgment that the state law is okay, and that's why --

Justice Hugo L. Black: But suppose he renders and says it's void, is that filed?

Mr. Elliott C.lichtman: In that event, no, it's not filed.

In that event, Mississippi has two alternatives.

They can cease operating the new law or they can go to the District Court for the District of Columbia to seek to have a new law approved.

Now, if the --

Justice Hugo L. Black: To get them to approve the law as constitutional.

Mr. Elliott C.lichtman: That's correct, in effect.

Justice Hugo L. Black: As what?

Mr. Elliott C.lichtman: As --

Justice Hugo L. Black: As constitutional or --

Mr. Elliott C.lichtman: As not having a discriminatory purpose, which would be that it would be constitutional.

Justice Hugo L. Black: The result being if it's either constitutional or unconstitutional.

Mr. Elliott C.lichtman: Right.

Justice Thurgood Marshall: What happens if Mississippi passes a law and the Attorney General reads it in the newspaper that the law was passed and he got the US attorney in Jackson to get him a copy of the law?

Could he take any action?

Mr. Elliott C.lichtman: Certainly.

Justice Thurgood Marshall: He could?

Mr. Elliott C.lichtman: Certainly.

He --

Justice Thurgood Marshall: What's the magic if Mississippi has to "submit it."

What's the magic in that?

Mr. Elliott C.lichtman: Well, he could take action under the Voting Rights Act and he could also take action under the Fifteenth Amendment

I thought your question was addressed to the Voting Rights Act.

Under 12 (d), he could compel Mississippi to submit the law to him.

Justice Thurgood Marshall: Well, I mean, what's the magic in submitting it, other than he gets it?

Mr. Elliott C.lichtman: The magic is that he has an opportunity to object, and if he does object, the burden --

Justice Thurgood Marshall: My case was, he did have a copy of the Bill as it was passed, certified copy.

Mr. Elliott C.lichtman: Right.

Justice Thurgood Marshall: That gives him everything he needs to start where it does.

Mr. Elliott C.lichtman: Alright.

Justice Thurgood Marshall: Well, what difference does it make whether he gets it from Airbab or he gets it at the State of Mississippi?

Mr. Elliott C.lichtman: Well, the difference of course is that the burden is on Mississippi when it goes before this District Court for the District of Columbia.

Mississippi must prove that its purpose was not discriminatory and its effect was not discriminatory.

That's very different.

Justice Thurgood Marshall: Well, then, I misunderstand you.I thought you said the only relief you wanted was that Mississippi should submit a copy of this Bill to the Attorney General.

Mr. Elliott C.lichtman: Well, that's step one.

If the Attorney General does not object, as far as we're concerned, it's harmless error.

If the Attorney General does object, then we submit this is --

Justice Thurgood Marshall: Well, we don't get any of that.

All you ask us to do is to tell Mississippi "you must submit this to the Attorney General."

Mr. Elliott C.lichtman: Well, we still have the problem --

Justice Thurgood Marshall: You must give to the Attorney General a copy of the law that he's drawn a brief on.

Mr. Elliott C.lichtman: But we still have the problem, Mr. Justice Marshall, of what happens to those people who were injured back in November of 1967.

They should have had elections by the -- in Forrest and Adams County.

They should have had elections for the position of County Superintendent of Education.

What happens to those people?

Our position is --

Justice Thurgood Marshall: Well, then, you're asking for more than that we just ruled --

Mr. Elliott C.lichtman: That's right.

Justice Thurgood Marshall: That this be submitted.

Mr. Elliott C.lichtman: That's right.

We could --

Justice Thurgood Marshall: Well, not exactly.

What are you asking?

Mr. Elliott C.lichtman: Alright, logically, we --

Justice Byron R. White: You're not asking us to pass on the validity.

Mr. Elliott C.lichtman: Of course not, but our position is that the law was not in effect.

It should not have gone into effect in November of 1967.

It will be quite --

Justice William J. Brennan: And, therefore, what?

Do we set aside those elections in 1967?

Mr. Elliott C.lichtman: Well, we could ask you to do that, but we think that's unrealistic because it would take more than 60 days to hold a new election.

And, during that period of time, Mississippi could submit to the Attorney General.

So, we're not asking you to immediately set this aside because we think that's unrealistic.

We think that you should order them to submit.

If they submit and the Attorney General objects, then new elections must be held.

If the Attorney General does not object, then that's the end of the matter.

Justice Hugo L. Black: Do you mean if the Attorney General objects, we won't let any Court rule on it at all?

They've got to set it down then and have a new election?

Mr. Elliott C.lichtman: That's correct.

The --

Justice Hugo L. Black: No Court ever holds this.

It's --

Mr. Elliott C.lichtman: Well, this Court, in South Carolina versus Katzenbach, interpreted Section 5 as meaning that when a new law goes into effect, it is automatically suspended.

It does not go into effect.

Mississippi should not have had elections in November 1967 under these new laws because it failed to clear these new laws.

Justice Hugo L. Black: The result of that is that the Attorney General of the United States, who is not a judge, who is not in Court, can object to any state law, it's election law, and he can immediately require that state to have another election, is that right?

Mr. Elliott C.lichtman: That' right.

Justice Hugo L. Black: That's what I understood you to say.

Mr. Elliott C.lichtman: Mr. Justice Black, Congress was faced with an extraordinary problem.

Justice Hugo L. Black: I'm not talking about extraordinary --

Mr. Elliott C.lichtman: And, that's what it did.

Justice Hugo L. Black: Any extraordinary thing.

The Constitution is an extraordinary thing.

Mr. Elliott C.lichtman: Well, the issue, of course, was raised in South Carolina versus Katzenbach and the majority of this Court held that Section 5 was constitutional, that Section 5 immediately suspended the new law and that, until the covered state clears the new law, the law cannot go into effect.

But, now, we are in 196 --

Justice Hugo L. Black: You didn't go so far as to hold, but you're saying now that the effect of the Attorney G -- of submitting it to the Attorney General, and he's holding it there, that immediately requires the state to hold a new election.

Mr. Elliott C.lichtman: Well --

Justice Hugo L. Black: Which means that the Attorney General is permitted to pass without submitting to any Court on the legality of a state law.

Mr. Elliott C.lichtman: The appropriate remedy, Mr. Justice Black, in our view, would be to immediately undo what was done incorrectly in November 1967, and we should ask you to set --

Justice Hugo L. Black: I understand that, but you --

Mr. Elliott C.lichtman: Set --

Justice Hugo L. Black: But --

Mr. Elliott C.lichtman: Set this aside, but --

Justice Hugo L. Black: But the situation is like I said, isn't it?

It gives the Attorney General the power, if he holds the thing is bad, that that is binding on the state and it must have a new election right away.

Mr. Elliott C.lichtman: I would phrase it this way, Justice Black.

Justice Hugo L. Black: Well, is that what it would be?

Mr. Elliott C.lichtman: That's the effect, but Congress said the new law was bad.

And, the Attorney General merely has the power --

Justice William J. Brennan: No, the Congress didn't look -- the Congress didn't say the new law was bad, may I suggest.

What the Congress said was this state law shall not be effective unless such and such is done.

Isn't that what Congress said?

Mr. Elliott C.lichtman: That's right.

Justice William J. Brennan: Now, if that's so, whether or not the Attorney General approves or disapproves, whether or not -- if the Attorney General disapproves, the District Court for the District of Columbia is valid.

Nevertheless, there was no state law in effect on the date of the selection.Was it?

Mr. Elliott C.lichtman: That's correct, Mr. Justice Brennan.

Justice William J. Brennan: Well, then I don't understand how, under any submission you make, you can take any position other than that there was no valid election --

Mr. Elliott C.lichtman: Well --

Justice William J. Brennan: In November 1967.

Mr. Elliott C.lichtman: Mr. Justice Brennan, that is correct.

All I have done this morning is to suggest that it's unrealistic for us to expect you to order a new election in 60 days when they may submit but, logically, your position is correct and I'm very happy to take that position.

The November 1967 elections were not properly held because the new law was not properly clear.

Justice William J. Brennan: No, because the --

Mr. Elliott C.lichtman: Therefore --

Justice William J. Brennan: No, because there was no law.

Mr. Elliott C.lichtman: Well, the old law, presumably, would still be in effect.

Justice William J. Brennan: Well, the old law may be, but the law with -- under which r --

Mr. Elliott C.lichtman: Right.

Justice William J. Brennan: The new law could not be given by force of congressional enactment --

Mr. Elliott C.lichtman: Right.

Justice William J. Brennan: Any effect by the state whatsoever.

Mr. Elliott C.lichtman: Right.

Justice William J. Brennan: Isn't that right?

Mr. Elliott C.lichtman: That's right.

Justice William J. Brennan: If that congressional enactment of Section 5 is constitutional.

Mr. Elliott C.lichtman: Right, and the old law was in effect.

Therefore, this Court could order Mississippi to hold elections pursuant to the old law.

And, we would be delighted if you would order that.

I think I will save, if Your Honors permit me to, the remaining few minutes for rebuttal.

Chief Justice Earl Warren: Very well.

Mr. Pollak.

Argument of Stephen J. Pollak

Mr. Stephen J. Pollak: Mr. Chief Justice and may it please the Court.

The issue this morning is a statutory interpretation one.

It involves the responsibilities of the states and the rights of citizens under Section 5 of the Voting Rights Act of 1965.

As has already been presented before the Court, the major and overwriting issue is whether failure to comply with the procedures of Section 5 precluded enforcement of the changed laws concerning the election of County Supervisors, the appointment of County Civil School Superintendents, and the requirements for qualification of Independent candidates.

The argument thus far has focused on one of four issues, which the appellees have projected in the case in which we believe are in the case.

I'd like to state them and I'm prepared to present argument on each of them.

The first is whether Section 5 is limited to the qualifications for registration to vote or whether it reaches beyond that scope to cover changes which affect voting and may violate the Fifteenth Amendment.

The second issue, not yet discussed, is whether, where a state fails to comply with the procedures of Section 5, a person whose vote is affected has a private right of action to seek to enjoin the enforcement of that changed law.

The third issue is whether, if such a private right of action is authorized by Section 5, it must be bought -- brought as the suits here were brought before three-judge Courts.

And, the last issue is whether these appeals are mooted because when the Clerk of this Court requested the Attorney General for his views on March 11 of this year.

He gave the Attorney General notice of the changes and the Attorney General has not made formal objection, or at least that is how the issue is stated in the appellees' briefs.

I believe the facts of these cases bear witness to the prophetic vision of the Congress in enacting the Voting Rights Act.

It was concerned, as the reports of the committees and the debates indicate, that once the barriers to registration were down, the states covered by the Voting Rights Act might resort, as they had resorted through previous 100 years to other statutes to preclude effective votes by Negros.

The Voting Rights Act was essentially a statute which, one, suspended literacy tests and devices which had been used to discriminate and, two, has had the Courts in the previous few years sought to freeze the presently existing statutes so that when the literacy tests were out of the way and Negros were able to register, those then existing statutes would remain in effect until the Attorney General or a Court of three judges and, in turn, this Court had reviewed the change to determine that the change was not a violation of the Fifteenth Amendment.

It did not put any final powers in the Attorney General, as we read it.

Justice Hugo L. Black: To determine it was not a violation of the Fifteenth Amendment?

Mr. Stephen J. Pollak: I didn't hear the first words of your question, sir.

Justice Hugo L. Black: Do you say someone -- until someone had reviewed it to determine whether it was a violation of the Fifteenth Amendment, who was there to review it?

Mr. Stephen J. Pollak: The Court of three judges of the United States District Court for the District of Columbia.

It was logged in a Court and the only role of the Attorney General, there is no requirement as we read the -- Section 5, that the state must make a submission to the Attorney General.

It may move to the three-judge Court immediately after -- when it wishes to enact or enforce a changed law.

The only provision for the Attorney General is that if the state believes that it has a change which is not violative of the Fifteenth Amendment and wishes to move through this procedure established by Section 5 faster than it believes it can move to the District Court, it may submit it to the Attorney General.

Justice William J. Brennan: In either case where there's -- the state goes directly to District Court for the District of Columbia or after refusal of the Attorney General to approve the legislation.

Was the District Court for the District of Columbia a three-judge Court?

Mr. Stephen J. Pollak: It -- we read it to require a three-judge Court, and --

Justice William J. Brennan: In either case?

Mr. Stephen J. Pollak: In either case.

Justice William J. Brennan: And then do what, appeal that record from that Court?

Mr. Stephen J. Pollak: It would be, Your Honor.

Justice William J. Brennan: We don't involve the District Court for the District of Columbia?

Mr. Stephen J. Pollak: No, Mr. Justice Brennan.

Justice Hugo L. Black: In your judgment, did the case of South Carolina and Katzenbach merely approve the constitutionality of the law as far as it went or do you say that that case require that we hope that it governs however that law is applied?

Mr. Stephen J. Pollak: I believe that the decision of this Court in South Carolina validated the constitutionality of Section 5.

I believe --

Justice Hugo L. Black: To the extent of what, anyway it's applied?

Mr. Stephen J. Pollak: Well --

Justice Hugo L. Black: Any application?

Mr. Stephen J. Pollak: I believe the first issue that is -- we've -- I articulated this morning, the scope of Section 5, is still open for this Court to rule in this case.

Justice Hugo L. Black: That only ruled it was constitutional in so far as it required it to be submitted, isn't it?

Did it hold what the effect was or could it hold that at that time, however it was applied, it was constitutional, the means of application?

Mr. Stephen J. Pollak: Your Honor, the Court had Section 5 before it, in that, a South Carolina statute changing the hours of voting from 6:00 in the evening to 7:00 in the evening was presented and the Attorney General adverted to it in the course of the argument.

The Court makes reference to that change in its opinion in a foot -- in the text and also in a footnote on page 320.

It also makes the statement there are indication in the record that other Sections the country listed above have also altered their voting laws since November 1, 1964, but the Court did not have before it the procedures which would be followed by the Attorney General or beyond that by the Court if there were any unusual procedures.

Justice Hugo L. Black: Do you think it held in that case that it would be unconstitutional to be, the result, not submitting it to the Attorney General or his saying it was bad, that that would nullify state elections?

Mr. Stephen J. Pollak: Your Honor, I believe --

Justice Hugo L. Black: Do you think that was held?

Mr. Stephen J. Pollak: I believe the Court did make this holding, not that -- I want to say --

Justice Hugo L. Black: I believe it hold it.

That wasn't the issue.

Mr. Stephen J. Pollak: I want to stay away from a statement or an argument that the Court held that if the Attorney General said it was bad, I believe those were Your Honor's words --

Justice Hugo L. Black: Well, whatever he held.

Mr. Stephen J. Pollak: The point that the Court ruled upon was this, and I believe it did hold this.

The Act suspends new voting regulations, pending scrutiny by federal authorities to depend to determine whether their use would violate the Fifteenth Amendment.

I believe that the Voting Rights Act, as I've used the word before, froze the laws at the time it was passed or as of November 1, 1964.

Justice Hugo L. Black: Was it without any Court passing on it?

Mr. Stephen J. Pollak: It froze those laws and said if the state wished to change --

Justice Hugo L. Black: The Attorney General could freeze it.

Mr. Stephen J. Pollak: No, the Act.

Congress of the United States froze it.

Justice Hugo L. Black: Well, the Act said, as I understand it, not that it did but the one submitted to the Attorney General.

Mr. Stephen J. Pollak: No, I don't believe -- I believe what the scheme of the Act, and I'm prepared to advert to the legislative history which I think is relevant, but the scheme --

Justice Hugo L. Black: I have no doubt about what they intended.

Mr. Stephen J. Pollak: The scheme of the Act --

Justice Hugo L. Black: Did they settle the constitutionality of it?

Mr. Stephen J. Pollak: Your Honor --

Justice Hugo L. Black: As applied.

Mr. Stephen J. Pollak: I believe that the Court in South Carolina v. Katzenbach and at pages 334 and 335 of 383 US did pass on the constitutionality of the sus -- of the suspension of changes and by the Congress.

Justice Hugo L. Black: In that case, on those facts to the extent that it was applied in that way?

Mr. Stephen J. Pollak: Well, I would respectfully --

Justice Hugo L. Black: Do you think it -- do you think in that opinion, the Court would actually begin to hold that anyway it's applied would be legal, constitutional?

Mr. Stephen J. Pollak: Well --

Justice Hugo L. Black: You don't think that, do you?

Mr. Stephen J. Pollak: No, but, Your Honor, the application of the Act follows after the freezing.

In other words, that application of the Act is the procedure by which the state may put into effect the change.

The Courts of the United States, and I don't believe it reached this Court because the Voting Rights Act was passed in the intervening time, but the Lower Courts of the United States in voting rights actions had adopted the freezing principle.

They had said that the laws under which Whites were permitted to vote and Negros were denied to vote, those laws or those procedures would be frozen in effect for a period of time which would allow the Negros equal rights to register.

And, that was the principle which Congress embodied in Section 5.

Justice Hugo L. Black: Well, it had -- their principle was so that the Attorney General of the United States, a prosecutorial officer who is not a judge, look at it and see if he thought it violated the Fifteenth Amendment, wasn't it?

Mr. Stephen J. Pollak: No, Your Honor, I don't --

Justice Hugo L. Black: Or would violate it.

Mr. Stephen J. Pollak: I don't believe that was the principle.

The principle was that Congress said any change shall be suspended.

The present law as of November 1, 1964 shall remain in effect.

Negros shall have five years.

The Voting Rights Act is a five-year Act.

During that five years, these laws were to be frozen.

The past discrimination was to be cleansed, and Negros were to be able to vote and not, as has occurred in this case, to have to litigate the changes during that brief five-year period while the changes were in effect.

The problem here --

Justice Hugo L. Black: Do you think it was the objective of the Congress to suspend any new law and leave the old Mississippi laws that had been on the books a long time in effect?

Mr. Stephen J. Pollak: I believe that is what the Congress did and it provided a speedy mechanism to meet that situation which Your Honor poses by presentation of those laws to the Attorney General or the state, of course, has the option not to present them to the Attorney General but to go right to the three-judge Court of the District of Columbia.

in that event, the suit would be against the Attorney General of the United States and I would respond at this point to the fact that I would not be prepared to concede, Your Honor, that the suit, if lodged in the District Court for Maine, would inappropriate location.

I believe these decisions in the --

Justice Hugo L. Black: Why wouldn't it, if the constitution prevented it in Maine than it more does here?

Mr. Stephen J. Pollak: I believe that the decisions of this Court have validated a suit in the District Court for the District of Columbia, and the requirement of suit here where the suit is brought against officials of the United States government, and this is their domain.

Justice Hugo L. Black: Constitutionally speaking, what's the difference?

Mr. Stephen J. Pollak: Well --

Justice Hugo L. Black: If a District Court of the United States is a District Court of the United States?

Mr. Stephen J. Pollak: I believe that the constitution requires that the procedure be appropriate to enforce the First Clause of the Fifteenth Amendment, and I believe that the appropriateness here called for speed and called for the Attorney General to receive that action and defend that action in the District of Columbia.

Justice Hugo L. Black: I'm not asking you these questions with any idea, believing the idea on your part, that I think Congress is allowed full power to pass its own laws and to have its Courts judge of their constitutionality.

Mr. Stephen J. Pollak: I --

Justice Hugo L. Black: That's quite different, however, to the question I'm asking you.

Mr. Stephen J. Pollak: Your Honor --

Justice Hugo L. Black: The Attorney General --

Mr. Stephen J. Pollak: I had no such thought in my mind.

I would've -- if -- I don't want to be repetitious, but we do not read the law to lodge a power in the Attorney General which is an absolute power --

Justice Hugo L. Black: Well, it's to suspend the laws, isn't it?

Mr. Stephen J. Pollak: No, Your Honor.

The suspension of the law was in the hands of the Congress of the United States which did do it in Section 5.

The law was suspended.

The change was suspended the day the law was passed, if there had been changes since November 1, 1964.

Justice Hugo L. Black: You mean the action of Mississippi in 1965 or 1966 was suspended by Congress in an Act passed in 1964?

Mr. Stephen J. Pollak: Well, the -- Your Honor, that -- the chan -- the Act was passed in, and effective, August 6, 1965 and the change between November 1, 1964 and August 6 was suspended and changes for the five years after the effective date were suspended until this procedure was found.

Justice Hugo L. Black: And committed them to the tender measures of the old Mississippi laws?

Mr. Stephen J. Pollak: Except in so far as those laws were suspended by the Voting Rights Act and the tests and devices were suspended.

The voucher requirement, the handwriting requirement, the constitutional interpretation requirement, those were suspended by Section 4 of the Act.

Justice Hugo L. Black: I suppose that Congress didn't sanctify the old Mississippi laws.

They were still open to attack in the Courts, were they not, by everybody who was --

Mr. Stephen J. Pollak: They were open to attack and the Department of Justice was presently litigating them in 77 voting rights cases in the South, not all in Mississippi.

Those cases were all pending and this Court had before it, only in earlier that year, in January of 1965 the full records of the way tests and devices has been used to discriminate the way.

As Judge John Brown of the Fifth Circuit said in dissent in United States v.Mississippi, he said the barring of one contrivance has too often caused no change in result only a change in methods, and that was Judge Brown's dissent.

This Court in the case reversed, in United States v. Mississippi in 380 US, just earlier in the year.

Justice Hugo L. Black: It took care of the device, didn't they?

Mr. Stephen J. Pollak: Your Honor, it did, but the problem that was presented to the Congress in passing a -- the five-year remedial measure of the Voting Rights Act was that the period of time, as Judge Brown said a change resulted then only in the adoption of a new contrivance, that Congress met the situation whereby Negros litigated for four to five years sometimes and ultimately prevailed.

Justice Hugo L. Black: But you say they suspended the new -- any new law and left the old laws in effect.

A suspension would do that, wouldn't it?

Mr. Stephen J. Pollak: That is correct.

Justice Hugo L. Black: That would sanctify the old law --

Mr. Stephen J. Pollak: Well --

Justice Hugo L. Black: For that time, wouldn't it?

Mr. Stephen J. Pollak: It --

Justice Hugo L. Black: I thought it was a fact --

Mr. Stephen J. Pollak: Congress --

Justice Hugo L. Black: Held back in the Courts.

Mr. Stephen J. Pollak: Congress did not sanctify the --

Justice Hugo L. Black: Well, you say you suspended it.

Mr. Stephen J. Pollak: They suspended changes.

Justice Hugo L. Black: Any new changes.

Mr. Stephen J. Pollak: Yes, sir.

We believe the words the legislative history of the initial interpretation of the statute by the Department of Justice and the interpretations given the statutes by the three states who have submitted and, by my review of our files, endeavored to comply with Section 5, that is South Carolina, Virginia, and Georgia, the interpretation of those states indicate that the coverage that is contended for in this -- in these three proceedings is the proper coverage.

The opposite position, that is that the statute reaches only the qualifications for registration, has little support, we believe.

The appellees cite a statement by Assistant Attorney General Burke Marshall, for whose information and knowledge of the statute I would have very great regard.

Mr. Marshall responded to a question of Congressman Corman who asked him "Mr. Marshall, has the Department of Justice given any consideration to the question whether the statute should address itself to the qualifications of candidates for office?"

And, Mr. Marshall responded "the main problem the Bill addresses is the qualifications of voters."

Now, that, I think, must be understood in the context with which Mr. Marshall made the statement and I think it makes the point.

The Bill addressed the problem that the registration requirements had been implemented and used to preclude registration by Negros.

There were few Negros qualified to vote.

In Homes County, one of the counties that is involved in Number 26 here, one of the school superintendent counties, in Homes, at the time the Voting Rights Act was passed, there were 100+% of the Whites registered and 0.23% of the Negros.

I looked at the figure for early this year, 1968, and in Homes today it's still 100+% of the Whites but it is now 72% of the Negros, and the Negros have a majority.

In any event, Congress suspending and excluding the use of tests and devices to discriminate, but it was also saying that no changes in the laws which would affect Fifteenth Amendment rights would be permitted.

And, that is what it passed Section 5, the --

Justice Hugo L. Black: I would be perfectly satisfied with your argument if Congress had held that certain things were devices and put it in an Act.

What disturbs me is that that should be applied by Congress delegating their powers, at least for a time, to the Attorney General of the United States.

Mr. Stephen J. Pollak: Well, Mr. Justice Black, we don't read that as a delegation.

The task --

Justice Hugo L. Black: What could it be, except that?

Mr. Stephen J. Pollak: The body that Congress called upon to make that determination of whether the suspension should be lifted, and there's a case of controversy, is the three-judge Court for the District of Columbia.

Justice Hugo L. Black: Whether the suspension could be lifted.

Mr. Stephen J. Pollak: That's correct.

Justice Hugo L. Black: Until that time, the suspension was in effect by reason of the determination of the Attorney General of what --

Mr. Stephen J. Pollak: No, by reason of Congress.

That's --

Justice Hugo L. Black: Well, if you say Congress authorized him to do it, how are you going to draw a distinction?

Justice John M. Harlan: Well, isn't the Attorney General simply an option of the states to short-circuit litigation if they can get his approval?

Mr. Stephen J. Pollak: Mr. Justice Harlan, that is what our understanding of the law is, and that is what we read the opinion of the Chief Justice to say in the first sentence on this subject in South Carolina v. Katzenbach.

The Act suspends new voting regulations and it -- there it is.

The suspension -- if we --

Justice Hugo L. Black: It suspends it on condition.

Mr. Stephen J. Pollak: No.

Justice Hugo L. Black: Isn't that what it suspended on condition?

Mr. Stephen J. Pollak: The State of Mississippi had full 360-degree scope to bring a lawsuit in the three-judge District Court for the District of Columbia on the day it enacted these changes.

The Congress made the judgment, whether it was wise or not is not mine to argue or review, and I don't think is the -- relevant unless it were a violation of the constitution.

It made the judgment that on the basis of this ample record of history of discrimination, 100 years, that the present laws of these six covered states and the counties and three others were to remain in effect with the exception of the suspended ones, the tests and devices, they were to remain in effect.

The Congress said "we prefer those laws until any changes are validated in a lawsuit in the District Court for the District of Columbia."

Justice Hugo L. Black: And if it had said that unconditionally, you'd have a different case, wouldn't you?

Mr. Stephen J. Pollak: I think it did say it unconditionally.

Justice Hugo L. Black: You do?

Mr. Stephen J. Pollak: The Attorney General --

Justice Hugo L. Black: You think that it says unconditionally and that, here, if the Attorney Generals were not in that we could construe that Act as suspending every effort of a state to amend its election law?

Mr. Stephen J. Pollak: I think that this reach of the law is broad because, as Mr. Katzenbach in res --

Justice Hugo L. Black: I'm confused.

Do you think that -- the question I asked, can you answer that one?

Mr. Stephen J. Pollak: That all of those changes which the state may wish to make --

Justice Hugo L. Black: That even though the Section was not bad and he'd been given no power, do you think this Court could honestly read that Act as providing that no state should change its election law or any southern state, I think they were careful not to touch it in the other, that any southern state is barred from changing any of its election laws that they have until -- indefinitely.

Mr. Stephen J. Pollak: For five years, Your Honor, I think that's what the statute means.

Justice Hugo L. Black: That it suspends it for five years without any action on the part of the Attorney General?

Mr. Stephen J. Pollak: I think the --

Justice Hugo L. Black: Do you think that the Act would mean that if the Attorney General Section were out?

Mr. Stephen J. Pollak: I do.

I think the Attorney General has a duty, if one is submitted to him, of course the time runs against the Attorney General, 60 days.

Justice Hugo L. Black: Well, if that's true, the Congress then, you say, froze all the election laws of the south --

Mr. Stephen J. Pollak: That's --

Justice Hugo L. Black: For five years?

Mr. Stephen J. Pollak: That is my -- that is the way I read --

Justice Hugo L. Black: They couldn't pass any for five years.

Now, that would raise a different question in my mind.

Mr. Stephen J. Pollak: I believe that --

Justice Hugo L. Black: I can't quite read it that way.

Mr. Stephen J. Pollak: Yes, sir.

The background of this is indicated in the state --

Justice Abe Fortas: Mr. Pollak, are you going to get to the next question that put which is whether there is a private right of action?

Mr. Stephen J. Pollak: Yes, sir, Mr. Justice Fortas.

The private right of action, I believe, is indicated by the changes in the wording of the statute which were made by the Congress.

As submitted by the President and the Administration, "the Bill prohibited enforcement of any," and I insert a word, "new law or ordinance imposing qualifications or procedures for voting."

It was a prohibition, in those words.

In made no reference in Section 5 to persons.

It prohibited enforcement of a new provision.

Congress refrain Section 5 and broadened it and inserted the words that until a state complies, "no person shall be denied the right to vote for failure to comply with such new qualification."

And, our understanding of Section 5 is that, in adding the words "no person shall be denied the right to vote for failure to comply," Congress recognized and created a right in private persons to bring a suit to enjoin the enforcement of one of the suspended statutes.

Without that provision, the private party would have to live under the changed provision and would have to travel the long route of litigation in a suit under 28 -- 42 USC 1983 in which he would live under the changed law and litigate it while the change was in effect.

The private right of action permitted the plaintiff to bring suit to recognize the suspension of the statute.

There's no problem about the jurisdiction for the private right of action in 28 United States Code 1343 Section 4 which authorizes relief under any act of Congress protecting civil rights, including the right to vote.

We are here contending that there's an implied private right of action.This is what the Cong -- the Court recognized last term in Jones v. Mayer saying the fact that 1982 is couched in declaratory terms and provides no explicit method of enforcement, does not, of course, prevent a federal Court from fashioning an effective equitable remedy.

Now, of course, there are procedures in the Voting Rights Act that provide for the enforcement and enforcement procedure for Section 5.

But, in a Number of cases, Borak -- J.I. Case v. Borak and others under the securities and exchange laws, the fact that one agency has an enforcement responsibility has not prevented the Court from recognizing an implied right of private action.

I would like to take a moment with respect to the three-judge Court provision where, again, a question of statutory interpretation is raised.

The evolution of the words of the statute, we believe, again shows that the Congress recognized that there would be other actions besides the three-judge action in the District of Columbia.

As the senate passed the Bill, Section 5 referred to the three-judge -- I'm sorry, Section 5 referred to the declaratory judgment action required to be brought in the District of Columbia, and then concluded in the last sentence such an action shall be before three judges.

And, I would read that law, had it become the law passed by the Congress, as limiting the requirement of three judges to the District Court.

Indeed, I might also have read it to limit or exclude any private right of action.

However, the House did not accept the senate version "such an action shall be before three judges," and changed that language to read, as it now reads in the statute, "any action under this Section," and my understanding of the change in the language is that the Congress recognized that there would and could be implied private actions and provided that any im -- such private action would be before a three-judge Court.

Justice Abe Fortas: Well, suppose we don't agree with that analysis and suppose we think that although the right was conferred by Section 5 upon the individual, the individual has to look elsewhere for his cause of action.

Mr. Stephen J. Pollak: That he has to bring it before a one-judge Court.

Justice Abe Fortas: Well, let's say it's a question.

Would he then have to bring in before the one-judge Court if, as I take it to be, situation here is also challenging the constitutionality of a state statute?

At least that's still in one of these cases.

Mr. Stephen J. Pollak: No, I would believe --

Justice Abe Fortas: Sir?

Mr. Stephen J. Pollak: I would believe, as Mr. Derfner said, that in the case where he combines a Section 5 claim with a claim of unconstitutionality under the Fifteenth Amendment that the three-judge Court is properly convened.

Justice Abe Fortas: It's sort of pending jurisdiction, isn't it?

Mr. Stephen J. Pollak: Well, that's right.

The problem is not fully resolved in these three cases, Mr. Justice Fortas.

Justice Abe Fortas: No.

Mr. Stephen J. Pollak: Because in Number 25 and Number 26, the plaintiffs dismissed the constitutional claim.

Justice Abe Fortas: I see.

Mr. Stephen J. Pollak: So, those cases would not properly be here if a three-judge Court is not required.

Justice Abe Fortas: So, there, they have to derive the three-judge Court provision from the four corners of Section 5.

Mr. Stephen J. Pollak: That's right.

Those two cases must find it within Section 5.

We don't rely on contentions as an amicus that the general doctrines of this Court annunciated in Swift v. Wickham or other cases would validate a three-judge Court here if it can't be found.

Justice Abe Fortas: Because, you could say that Section 5 gives the petitioners in 25 and 26 a right of action.

It gives them a right, but that right -- then, it would follow -- it might follow that that right would have to be vindicated before a single judge --

Mr. Stephen J. Pollak: That is --

Justice Abe Fortas: Except for the language you point to in Section 5, is that it?

Mr. Stephen J. Pollak: That is correct, Your Honor.

Before --

Justice Thurgood Marshall: Mr. Pollak.

Mr. Stephen J. Pollak: Yes, sir?

Justice Thurgood Marshall: What do you say did the states point that you didn't know about this at least as of March of this year, US Attorney -- Assistant Attorney General?

Mr. Stephen J. Pollak: We would say the state is correct.

We knew of these changes at that date, bug we would say that the Attorney General must rely upon formal procedures that the submission of the changes is submitted by the Chief Legal Officer of the state or the county and that we have followed those formal procedures.

In the argument on South Carolina v. Katzenbach, the question of the 6:00-7:00 change by South Carolina was raised in argument, and Mr. Katzenbach said the United States has no objection to that change.

It's argued by appellees that that exchange with this Court was an approval by the Attorney General of that change in -- under the terms of Section 5.

In fact, I've reviewed the files of the department.

South Carolina, 15 days after the argument, submitted that change in writing to the Attorney General and the Attorney General responded in writing on April 1, 1966 saying that he had no objection to that change.

We must rely on the procedures that are established by Section 5.

We do not feel called upon and, indeed, would've considered it out of order to have expressed an objection in a response to the clerk's request for our view because that is not the issue here, as has come out in the argument.

The merits of these changes are not at issue.

We have said in our brief and I would say, in oral argument, that we think each of these three changes poses a serious question of Fifteenth Amendment violation.

Justice Byron R. White: Mr. Pollak, why should -- if there's a private action before a single judge, why shouldn't the question be limited to just whether or not the statute that's in question is covered by Section 5, and --

Mr. Stephen J. Pollak: Rather than the Fifteenth Amendment?

Justice Byron R. White: Yes, because, otherwise, aren't you really -- doesn't the Act contemplate that the validity of the statute be passed upon by the Attorney General or the District of Columbia Court?

Mr. Stephen J. Pollak: Yes, I believe that the posing of the validity of the statute is envisioned by Section 14 of the law to be determined in the District Court for the District of Columbia.

Justice Byron R. White: So let's assume that in this c -- in one of these cases that in a Federal District Court in Mississippi the plaintiffs ask that the statute be declared unconstitutional.

Do you think the District Judge should dismiss it?

Mr. Stephen J. Pollak: I do.

Justice Byron R. White: It is so.

Mr. Stephen J. Pollak: The statute?

I thought you meant Section 5.

Justice Byron R. White: No.

Mr. Stephen J. Pollak: We had that --

Justice Byron R. White: The state statute.

Mr. Stephen J. Pollak: Yes, the state statute.

Justice Byron R. White: So that, any new state laws are unattackable on constitutional grounds in any district -- in any of the covered states of the Federal District Courts.

Mr. Stephen J. Pollak: Under -- I don't think the statute withdraws power.

I change my answer upon better understanding.

The statute does not mean to remove the power or the right of a private citizen to sue under 1983 where his rights are deprived by an unconstitutional statute.

He can still go into the -- it would really be a three-judge Court, but he can go in to litigate the constitutionality of the new law.

Justice Byron R. White: Then why should the Federal Court -- I would agree that if -- that if the Attorney General approves a statute or 60 days went by and he didn't approve it, I would think that some citizen could still nevertheless challenge it but, until it's approved or 60 days has gone by or it's approved, then there isn't any statute at all, isn't it?

Mr. Stephen J. Pollak: I would agree with that, it's not.

Justice Byron R. White: So then, how --

Mr. Stephen J. Pollak: It's not an effective statute and the Court should under -- the Court should understand --

Justice Byron R. White: So, the Court should dismiss it.

Mr. Stephen J. Pollak: It should dismiss it.

You're correct.

Justice William J. Brennan: Well --

Mr. Stephen J. Pollak: So, the jurisdiction would only -- I suppose logic would say that there's jurisdiction.

There's no case or controversy until the 60 days have passed because there's no law.

Justice William J. Brennan: Let me get this clear then, Mr. Pollak.

In one of these cases we have a Fifteenth Amendment claim, don't we?

Mr. Stephen J. Pollak: Yes, not --

Justice William J. Brennan: But you don't -- you're not suggesting that.

As I now understand your answer to Mr. Justice White, that the fact of that challenge invokes the three-judge Court provision in it of itself.

Mr. Stephen J. Pollak: Well, Mr. Justice White has analyzed that to, correctly I believe --

Justice William J. Brennan: In other words, there's no statute.

Mr. Stephen J. Pollak: That's right.

Justice William J. Brennan: And, therefore, there is no place for the invocation on that ground of a three-judge Court.

Therefore, that does come down, doesn't it, that you have to find in that case the justification for the three-judge Court within the four corners of Section 5?

Mr. Stephen J. Pollak: On that analysis, you wouldn't.

That analysis strikes me as correct.

Justice William J. Brennan: And so, you say there should be a three-judge Court in any of these cases.

Mr. Stephen J. Pollak: That is the way we would read --

Justice William J. Brennan: Under Section 5?

Mr. Stephen J. Pollak: Yes, sir.

Chief Justice Earl Warren: Mr. Pollak, before you sit down, would you mind telling us what the extent of the relief should be in this case.

Mr. Stephen J. Pollak: The Department of Justice has, in prior cases, sought not to upset elections that have previously been held and, therefore, we would be loathed to urge this Court to order the school superintendents who were appointed or the county supervisors who were elected at large in Adams and Forrest Counties to be -- their elections be upset.

We would ask this Court to declare the changed laws, in effect, perspectively and to remand to the District Court for requirement of new elections.

Justice John M. Harlan: Could I ask you a question just beyond that in your view in Adams and Forrest Counties.

Do you think that the measure of a device and the constitutionality is in the Court now, are you saying that?

Mr. Stephen J. Pollak: No, I believe that the issue -- if I understand Your Honor, I believe the issue in the three-judge Court for the District of Columbia is the constitutionality under the Fifteenth Amendment.

Justice John M. Harlan: You do?

Mr. Stephen J. Pollak: I do.

Justice John M. Harlan: And the Act as it has been brought.

Mr. Stephen J. Pollak: That's right, and the Attorney General should apply a Fifteenth Amendment standard in offering that avenue.

There's one statement by Mr. Katzenbach in the hearings in response to a question posed by Senator Irving.

He said "but the f" -- this is at page 237 of the Senate Hearings, but the effort here was to get at things that were not included within the words "tests and devices" and the thought that other things that violated the Fifteenth Amendment by a state should also be subjected to judicial review.

I -- it might help the Court if I just related a statistic which I assembled before I came.

It came up and argument was alluded to by other counsel.

The department has received 251 submissions under Section 5.

It has received one submission in November of 1965 from Alabama, a submission from a county in Mississippi in 1966, one, and no submissions from the State of Louisiana.

We have received a Number of submissions from the State of Georgia a Number or a few submissions from the State of Virginia and a rather large Number of submissions from the State of South Carolina.

The only occasions that the department has had to state that it could not consent were one case from the State of Georgia where the change was contrary in our judgment to a prior Court decision on the same issue, the Court decision having been made after the Voting Rights Act.

And, two other cases from the State of Georgia where, inadvertently, the changed statute incorporated another Section of the Georgia law by reference and that other Section provided for a test or device.

Justice John M. Harlan: Well, promptly speaking, generally into the Act itself.

Mr. Stephen J. Pollak: Well, we have in no case -- We must act within 60 days and in no case on the first submissions have we ever received any request to speed up our reaction.

I believe we could do that and, generally, matters being what they are, we take most of the 60 days but that -- there's no necessary requirement that we do so, and the question was raised in the argument on the Section 5 aspect of the Allen case which Your Honors heard yesterday as to the speed with which it could be done.

It seems to me they're -- the Department of Justice ought to be capable of dealing with these things promptly.

Justice Potter Stewart: Well, Mr. Pollak, let's assume that you just said frankly that, with respect to one or more of these changes which are involved here, that you had no objection to them, that if they were submitted, it was submitted, you would approve it.

In that particular case, would you think that there ought to be new elections?

Let's assume that the super -- let's assume that the qualification case, you thought that was a perfectly good provision, and let's assume that, tomorrow, the State of Mississippi submitted it to you and you approved it in writing, what do you think this Court or the District Court should do in this case?

It was no law.

Even if you win, it still -- it was no law until you approved it.

Mr. Stephen J. Pollak: I do think the remand order of this Court could incorporate that provision that if the state wishes to submit the provision promptly to the Attorney General and if the Attorney General states no objection, then the provision would have been effective and, indeed, is effective and new elections are not required.

Justice Potter Stewart: And if there were new -- certainly, if there were new elections, it would be held under the new law because it is a law then.

Mr. Stephen J. Pollak: That's right.

Justice Potter Stewart: And -- but what if the Attorney General turns it down and the state promptly files suit to save a day with the District of Columbia Court.

Mr. Stephen J. Pollak: I believe that the proper procedures would be for the state to have available to it all of the powers of stay authority and injunctive authority pending a hearing on the merits in the three-judge Court in the District of Columbia.

If my prior statements would indicate that the remand of this Court ought to preclude the state from that, I suppose I want to amend them, but I don't think that I can stray from the fact that the state of matters here was entered into by the State of Mississippi with knowledge of the Court's decision in South Carolina, with knowledge that the Court had ruled that the law was suspended and, therefore, the Court really faces the situation that Your Honors already mentioned that these laws had not been in effect down to the day.

They're not in effect now under our reading of the statute.

Justice Potter Stewart: Well, then that brings us back to the question asked to you by the Chief Justice.

If the Court should agree with you on the basic merits, I didn't quite understand what you think the proper disposition of these cases should be.

Remanded to the District Court, you said, and then what?

Mr. Stephen J. Pollak: Well, I stated that it should remand the case.

I would respectfully suggest that it remands the case to the District Court --

Justice Potter Stewart: Yes.

Mr. Stephen J. Pollak: With directions that the District Court declare the laws not in effect --

Justice Potter Stewart: Yes, but --

Mr. Stephen J. Pollak: So procedures of Section 5 are followed.

Justice Potter Stewart: But people now hold office as result of these laws, so we have to think a little bit beyond what you said.

Mr. Stephen J. Pollak: That's right, and I -- well, perhaps -- I will answer your question, but perhaps I should also ask the leave of the Court to frame paper and submit it to the Court with a careful statement of what the relief should be, not being the plaintiff parties in the case the government has not spelled out in its preparation --

Justice Potter Stewart: That would be helpful to me from -- if you would like to do that and, from your position, as amicus to show what your thinking would be in the event that would be --

Chief Justice Earl Warren: Would you do that for us please, Mr. --

Mr. Stephen J. Pollak: Yes, Mr. Chief Justice, we'll do that.

Chief Justice Earl Warren: Of course, serve it on the other side.

Mr. Stephen J. Pollak: Oh yes, sir.

Chief Justice Earl Warren: Very well.

Mr. Allain.

Argument of William A.allain

Mr. William A.allain: Mr. Chief Justice and may it please the Court.

We are a little bit concerned ourselves about the type of relief which the appellants seem to want in the Court today.

We are on the impression, at first, they want to set aside the elections which were held in November and have new elections.

In view of the position they have taken today, we feel that maybe one of the most important questions before the Court is whether or not this issue is moot, whether or not the submission by this Court to the Attorney General and then the submission by us in our response brief to their brief, gave them the information, gave them the notice that is required by Section 5 of the 1965 Voting Rights Act.

Now, we say it is.

We know of no formal submission that has to be made to the Attorney General's Office.

Justice Byron R. White: Do you think of anything that the Attorney General says in the case that he either approves or disapproves these laws?

Mr. William A.allain: No, sir.

I think there's nothing in the briefs.

In fact, he states in his brief there that he is reserving onto himself the right to approve or disapprove at a later date.

We say to that que -- to that assertion, he cannot reserve onto himself longer than the 60 days which Congress itself has placed in the Act is the time in which he must make some kind of determination.

Now, he speaks of a formal right.

I know of no directive that the Attorney General's Office is put out on how we shall submit to the Attorney General our new laws.

And, just because --

Justice Thurgood Marshall: Well, you did --

Mr. William A.allain: While the other states have submitted them in one matter or the other is not binding upon the State of Mississippi nor is it controlling as to the -- what Congress really intended to do in Section 5.

Justice Byron R. White: Yes, but this case can't be moot unless you lose it first.

Mr. William A.allain: No, Your Honor, it could be moot if they have withdrawn their request for the relief which they have passed upon.

It was my understanding the position taken by counsel opposite, counsel for the appellant and not the amicus in this case, that as far as they were concerned, what they were really asking for was for this Court to tell Mississippi to submit this to the Attorney General's Office and let him approve or disapprove.

Now, we say this Court cannot command nor direct the State of Mississippi to do something which is beyond the scope of the Act itself.

We say, at this late date, that this has already been done, exactly what appellants want.

It has been submitted to the Attorney General of the United States.

He has not exercised his prerogative within the 60 days.

Justice Abe Fortas: Who submitted that?

I'd like to see --

Justice Thurgood Marshall: Mr. Allain, the State of Mississippi has not yet submitted.

I think your position that's stated in your brief is that this Court submitted it to the Attorney General.

Mr. William A.allain: That's true, Your Honor.

Justice Thurgood Marshall: Well, that's not what the statute says.

Mr. William A.allain: At that time, what --

Justice Thurgood Marshall: The statute says the state shall submit it.

Mr. William A.allain: When we submitted our response to their brief, at that time, we put them on notice through the Attorney General's Office.

Justice Thurgood Marshall: The statute doesn't say put on notice.

It says submit.

Mr. William A.allain: That's true, Your Honor, and I do not know what the statute really means by submit.

Does it mean by telephone conversation?

Does it mean by any brief?

Does it mean by passing on the street if we met the Attorney General and say "we've got a new law in Mississippi"?

Justice Thurgood Marshall: Has Mississippi done anything --

Mr. William A.allain: Yes, Your Honor, it has.

Justice Thurgood Marshall: Filed in March of this year to get in touch with the Attorney General by meeting them on the street or mail in or anything else?

Mr. William A.allain: We have submitted, Your Honor, in our brief.

He has been put on notice --

Justice Thurgood Marshall: That's exactly what you did here.

Mr. William A.allain: As required.

That is the only submission that we have made.

Your Honor, let me refer you to one thing that did happen, and this is a submission or at least the Attorney General Office accepted as such, we passed a constitutional amendment in which we have lowered the residence statute of Mississippi from two years to one year.

They sent registrars into the State of Mississippi just recently here to register individuals under the Act.

I was sitting at my desk one day.

A telephone call comes in for Mr. Bob Moore of the Justice Department asking me, he said, "we have known through the paper or otherwise that this constitutional amendment had been approved."

We have never submitted it.

He says "is that true?"

I said, "Yes."

He says "is it in the constitution?"

I said "yes."

He said "we will not notify the federal registrars to use that as a qualification."

That is submission.

That is approval.

Now, Your Honor, I don't know any formality.

I don't see how the Attorney General's Office can stand here today and say there's some formality when they have acquiesce in a change which came about after November 1, 1964, when I have submitted it over a telephone conversation and they, through their officials and agents, have put it into effect.

That, Your Honor, we think is -- actually, Section 5 is more of an informal thing and it must be tied in to whether or not a private suite can be brought.

We think, actually, the legislative history shown from the -- as we quote in our brief, the Attorney General just didn't want to have to roam over the southern states.

Justice Byron R. White: Of course, this is on the assumption that the Section 5 applies to these changes.

Mr. William A.allain: That's true, Your Honor.

I say --

Justice Byron R. White: You don't want --

Mr. William A.allain: At the threshold, if that was decided as a mooted question, you would not even have to reach these other questions which been brought closer.

Justice Abe Fortas: But if you take the position that this changes have been submitted to the Attorney General of the United States by or on behalf of Mississippi, then I take it you're not going to get anything to argue about here as -- let us say, you can't do that and still say that the Act does not apply, can you?

Mr. William A.allain: Yes, Your Honor, we could say that because if it had been a mooted question we would have no case of controversy here because the relief in question have already, or so I think have, been withdrawn as far as the appellants are concerned with.

The problem is in --

Justice Abe Fortas: Do you agree that the Act covers the various alleged tests and devices that are in issue in these cases?

Mr. William A.allain: No, Your Honor, but, as this Court --

Justice Abe Fortas: And, therefore, you don't agree that they'd been submitted to the Attorney General, do you?

Mr. William A.allain: What we're saying, Your Honor, is this.

We do not --

Justice Abe Fortas: Do you or do you not?

Mr. William A.allain: We can't submit --

Justice Abe Fortas: Do you or do you not?

Mr. William A.allain: No, Your Honor.

Justice Abe Fortas: Alright.

Mr. William A.allain: But we do not believe we had to submit it, but it was submitted and, therefore, is a mooted issue and there's nothing left for this Court to decide.

Justice Abe Fortas: It was submitted by the Clerk of this Court.

Is that what you mean?

Mr. William A.allain: Through the Clerk and also, Your Honor, through our response brief which brought attention to the Attorney General informally or, in this case, very formally in writing that we had such a law.

He had 60 days and he has done nothing about it.

Chief Justice Earl Warren: We'll recess now.

Mr. William A.allain: Mr. Chief Justice, I do not intend to delay the point any longer, Your Honors, in regard to the mootness question, though we do feel it in a very serious question in this case, but I would like to refer the Court to our brief in which we have quoted from the memorandum submitted to the Attorney General in this particular case.

"Since Section 5's approval procedure was devi -- designed to serve an informing function to provide a method of bringing to the attention of the government changes in state law," we again submit that this was merely to keep the Attorney General from roaming all over the southern states affected by 1965 Voting Rights Act and trying to find out every time when a new law in regard to voting was put into effect in these states.

It was merely --

Unknown Speaker: What page?

Mr. William A.allain: Page 15, Your Honor, of our brief, brief of the appellees, page 15.

Unknown Speaker: That's in the 25?

Mr. William A.allain: That's in the 25, yes, sir.

Justice John M. Harlan: Yes.

Mr. William A.allain: Which means, that we seriously urge the Court that the informing that the Attorney General received in this case was sufficient by the legislative history, by the intent of Congress, by the interpretation placed upon that Section by the Attorney General's Office themselves, that there was no need for any formal type of notice given to the Attorney General's Office.

We would further direct the Court's attention or invite the Court's attention to page 22 of the memorandum of the United States as amicus.

In which -- in this particular brief and on page 22 thereof, they admit or seem to admit that the Section 5 applies to reapportionment or to redistricting, what we have in this particular case before the Court today, and then they say, "the most that can be assumed from past silence is that the Attorney General was not prepared to impose an objection to the changes being at -- effective and, thus, declined to seek to compel a state or political subdivision to comply with what would have, in all likelihood, been a wholly formalistic step that would merely have delayed final implementation of a constitutional required restruction of government."

They are admitting there that, as far as they're concerned, there may be other areas in which there has been a restruction of government and they did not feel that they should make them take the formalistic step.

Now, this, Your Honor, does not tie in or does not fit in with Mr. Justice Brennan's remarks and I think Mr. Justice White's remarks that it is not for the Attorney General to make that decision whether or not they're going to be suspended.

If they are suspended, they are suspended until, if they come within the purview of Section 5, the attorney there submitted to the Attorney General's Office and approve or disapprove then that is appeal to the Washington,, D.C. Court.

What they're saying here is that there might be other areas throughout the south land, but we did not feel that we ought to take any step to make them do that.

Well, if you're going to be consistent and say that Section 5 says that the Act suspends these, what he is saying is that we've got laws out there that are being suspended.

We know they're being enforced, but we will not do our duty under Section 12 (d) of the Act of Sec -- in Section 12 which says that the Attorney General can bring an injunction proceeding to keep those states from doing what Section 5 says they cannot do.

Justice Byron R. White: I assume that if what you -- if we accepted your argument that the Attorney General really has been informed and 60 days had gone by, then the plaintiffs are in shape to challenge these laws directly in the District Court for constitutionality.

Mr. William A.allain: I would take that position, Mr. Justice White, because we take the position that they do not come under the 1965 Voting Rights Act.

If the -- this Court was to hold or if the position was taken as appellants apparently take it that it does come on the 1965 Voting Rights Act, then they could not challenge it in a local District Court bec --

Justice Byron R. White: Once the Attorney General has approved it.

Mr. William A.allain: Yes, Your Honor.

Excuse me.

I misunderstood your question.

Justice Byron R. White: You say, in effect, he has.

Mr. William A.allain: If --

Justice Byron R. White: And if 60 days go by.

Mr. William A.allain: If that is correct, then they do have, and we submit in our brief, Your Honor, that they have that right, then they had the right on the local level to bring a suit under the Fifteenth Amendment which is what they -- and let me -- I'd like to clear this up in the Marshall case and in the Fairley case which is the appellant supervisors.

We do not have, in that case, a Fifteenth or a Fourteenth Amendment question.

That was taken out not by stipulation, as in the other two cases.

That was taken out by a petition or a motion filed on the part of the appellants, an order granting that that second claim of the f -- be taken out of the lawsuit entirely.

So, we stand before the Court today resting entirely upon the jurisdiction of this Court and the three-judge District Court in the trial of the District Court --

Justice Byron R. White: On the Act.

Mr. William A.allain: Upon the Act in it of itself.

Justice Thurgood Marshall: Mr. Allain, assuming that these acts are covered by the Civil Rights Act of 1965, which I know you don't agree with, but assuming that for a moment, then is it your position that up until March of this year these particular Mississippi statutes were suspended and then 60 days after March, because the Attorney General didn't take any action, they get new life?

Mr. William A.allain: Your Honor, I would think --

Justice Thurgood Marshall: That would be an anomalous situation, wouldn't it?

Mr. William A.allain: No, Your Honor.

I think it would be more of the fact that they did not take any action is, more or less, an approval of it.

And, Congress intended it to be, more or less, retroactive.

Justice Thurgood Marshall: Well, that --

Mr. William A.allain: That if they would become effective after that date --

Justice Thurgood Marshall: There's nothing that you showed me so far that said the Attorney General knew about this before March, right?

Mr. William A.allain: Right, sir.

Justice Thurgood Marshall: So, he hadn't approved it before March.

Mr. William A.allain: To my knowledge, he had not, sir.

Justice Thurgood Marshall: And so, then, it was suspended because it hadn't been submitted to him.

Mr. William A.allain: My feeling in it, Your Honor, would be that if a law was passed or put into effect and it was submitted to him and he has the 60 days, that even if he did not act within that time or he approved it, that it would be more or less retroactive and it would become effective as of the time in which it was put into effect.

Justice Thurgood Marshall: What you're relying on the fact that he didn't disapprove it within 60 days.

Mr. William A.allain: To my mootness argument, Your Honor, yes.

Justice Thurgood Marshall: That's all I'm talking about.

Mr. William A.allain: Right.

Justice Thurgood Marshall: Well, his 60 days, according to your position, didn't start until March of this year.

Mr. William A.allain: No, sir.

Justice Thurgood Marshall: This year.

Mr. William A.allain: According to my position, it was last term, Your Honor.

First, when you -- when the Court had requested that this --

Justice Thurgood Marshall: Wasn't that in March?

Mr. William A.allain: Amicus should be filed.

I'm not sure of the date, Your Honor, but I do know that it's --

Justice Thurgood Marshall: Well, has it -- whatever date that is.

Mr. William A.allain: Whatever date it is.

Justice Thurgood Marshall: So, the -- he had not passed it on in one way or the other.

Mr. William A.allain: At that time.

Justice Thurgood Marshall: He had not had an opportunity under the statute to pass on it because it hadn't been "submitted."

Mr. William A.allain: Until submitted by this Court.

Justice Thurgood Marshall: So then, it was suspended.

Mr. William A.allain: But, he's not acting up on it, Your Honor.

We think Congress intended it would be retroactive and it'd be effective as of the date in which it was passed whether he approved it or whether he did not do anything about it.

We think you'd almost have to read that into the Act to keep the -- to keep it from being in suspension in that period of time when nothing would be really in effect or there'd be some conflict of the law.

Your Honor, we would like to say this in moot -- excuse me sir?

Chief Justice Earl Warren: Do you want this Court to say in any way the information about the Act goes to the Attorney General from by state by telephone or (Inaudible), that triggers the Act so far as the Attorney General is concerned or what do you concede to be the Congress in some protection kept the attention to have somebody inform those from state to the Attorney General in order to be --

Mr. William A.allain: Your Honor, I think that he would have to have some type of idea of what's informal because I don't -- really, we may be limiting but some manner from an official of the State of Mississippi.

Now, as I illustrated, the one in which the government accepted was a telephone conversation, but it did come from an Assistant Attorney General of the State of Mississippi to a Justice Department attorney.

I was being somewhat facetious when I told Mr. Justice Marshall about, on a street corner or something, there would be no documented evidence of it or there would not be an official of one of the state and an official of the federal government.

I'm not sure if the Chief Justice is speaking of some formality of some writing, some correspondent, some letter, or just what we have here.

Chief Justice Earl Warren: Not the formality of it but the informality which it seems to have had, but long to have said "no, they're not" from something that's ordinarily done in litigation that that won't be enough (Inaudible).

Mr. William A.allain: If the Court please, they have accepted it apparently in that manner, and I will place the instruction they've placed on it.

Chief Justice Earl Warren: In connection with that, what would be -- Well, that ought to be our Court.

Mr. William A.allain: I think it should be, Your Honor.

Chief Justice Earl Warren: In other words, do you want the Courts to determine whether the Attorney General ask him in a form of advise to look into collateral litigation.

I think, in that time, we'll find out if there was any word to say about speaking to the Attorney General, that's when we're going to have a direct litigation.

Mr. William A.allain: If the Court please, at this time, that is really -- in other words, I would rather limit it to what happened in this particular case which was a formal.

I would not want to foreclose it as a case, arbitrarily in this term of Court, it might be just around the corner, but this Court does not have to make that decision.

This Court does not have to go that far.

This Court can merely say, in this case, this was a formal or was all that was necessary under Section 5.

I would hate to --

Chief Justice Earl Warren: Do you have the impression that (Inaudible) you told us about a telephone conversation.

Mr. William A.allain: Right, sir.

Chief Justice Earl Warren: In which somebody in the Attorney General's Office --

Mr. William A.allain: Right, sir.

Chief Justice Earl Warren: (Inaudible) somebody in the State of Mississippi.

Mr. William A.allain: Right, sir.

Chief Justice Earl Warren: And, do you suggest that was sufficient for the likes of the Act?

Mr. William A.allain: I contend it was, Your Honor.

I contend that the government contended that it was.

Chief Justice Earl Warren: That you should recognize in our decisions that that what's you're talking about.

Mr. William A.allain: I do think so, Your Honor.

I really do.

Now, I would like to say this.

Now, at the outset, counsel for opposite place quite a bit of their time and effort discussing ratios of Negro to White discussing the counties, how their makeup was.

Now, I would be less than honest with this Court.

If I was to stand before you and say there is no racial overtones here, that until I came here today I didn't realize that race was one of the prime movers of this particular lawsuit, but I will say this.

Before this Court, race is not a question.

As Justice Stewart said earlier, we only have a question before this Court, first, of the jurisdiction which has been limited discussion over as of this time and, secondly, whether or not this Act, I don't care where it was, I don't care if they were all-Whites or all-Negro, whether or not this type of Act in the Marshall and the Fairley case, and I would like to limit my argument to that, Mr. Wells will discuss the other cases, whether or not it came within the purview of the 1965 Voting Rights Act.

And, I think I'd like to make that clear because there is no need to discuss in this case racial, but I would like to say this in regard to a question posed by Mr. Justice Fortas.

We know that this Court decided in the Avery versus Midland County Texas case that the rationale of the Reynolds v.Sims goes down to the local level, and that was the first time this Court had actually made that pronouncement.

April 11, 1966, shown in appellant -- appellees' brief at page 15 in Number 25, now, let's get these dates, Your Honors, April 11, 1966, the Chief Judge of the Southern District of Mississippi, Judge Harold Cox, in the case of Crosby versus Pearl River County in which a suit was filed to de -- command that -- the supervisor to redistrict, motion to dismiss was filed on the grounds that the rationale of Sims did not -- Reynolds did not come that far down.

He found that it did in April 11, 1966, and he directed Pearl River County to redistrict.

This Act, other suits were filed.

The legislature did not pass this Act until May 27, 1966, having put on notice that the District Courts of the Southern District of Mississippi felt that the reapportionment decision did go down to the county level.

Your Honors would have to be familiar with some of the counties of Mississippi to realize we don't have any debates in the legislature and the legislative history which we can bring before the Court, but many other counties in Mississippi cannot be redistrict for the simple reason that the population might be grouped up in the southern area or the northern area like in Hines County, the Jackson is grouped -- the people in Jackson are grouped up in the northeastern Section.

So, the legislature felt that they must do something, put on notice by the District Court that they were going to apply this Court's decision in the Reynolds case to allow these counties to do something to comply with it.

There is just an impossibility in many of the Mississippi counties, I'd say in many counties throughout the United States, to actually draw off lines, rational lines, and put the population where they would not be within a certain percent of the ratio in the five districts.

Your Honor, because of the way that the population is grouped up in one area, and we must not only take in the consideration, I think this Court has said we don't have to take in completely the population, you would have all of the county grouped up in here and the people down here having very little representation.

There are a Number of people scattered throughout that area but of different diverse types of economics, maybe farmers here and maybe blue-collared workers here and, up in this area, white-collared workers and your wealthier people.

It has been shown just by surveys through survey companies that it is almost an impossibility in some of the counties for us to really redistrict.

Now, of course, this Court, as I read the decisions, have placed in the Virginia Beach case its stamp of approval upon the very thing which these two counties had done, and also made mention and, I guess, reapproved the Virginia Beach case in the Avery versus Midland County Texas case So, what I was trying to get before the Court that, irrespective of what counsel might thought was the reason for doing this, there were good concrete reasons existing in Mississippi's District Courts.

Justice John M. Harlan: (Inaudible)

Mr. William A.allain: That's true, sir.

Justice Byron R. White: Why do you waste your time on it?

Mr. William A.allain: Your Honor, because the counsel, I guess, spent so much time on it, there were quite a Number of questions from Court --

Justice Byron R. White: We'll never get to the --

Mr. William A.allain: And the bench in that regard.

Justice Byron R. White: We'll never get to the merits.

Mr. William A.allain: And I was really merely asking -- answering a question posed by Justice Fortas when he was, I think, he asked if there'd been any commands by the District Courts or commands by any Courts to redistrict.

And, I was answering that question and, on July 27, 1966, a three-judge District Court had called upon one of the counties.

That was prowled of what was done in Adams and in Forrest Counties.

Now, moving on from that question, Your Honor, we come to the question which was actually raised or not raised but urged by this Court, and that is to the jurisdictional question and one in which the government was asked to file a brief.

Whether or not this Court has jurisdiction because, there, was a properly convened a three-judge District Court in Mississippi.

Now, we're all in accord, I think, on this one principle.

How do you read the last sentence of Section 5 of the 1965 Voting Rights Act?

It is just that simple.

Whether any action under this Section, and I'm quoting from page 6 of our brief, any action under this Section shall be heard and determined by a Court of three judges.

Now, we say that that sentence was merely referring to the subject matter that is referred to in Section 5.

The only subject matter referred to in Section5, the only action referred to in Section 5 in the Court is a declaratory judgment in the District Court of Washington,, D.C.

And, that is when if first we have submitted our new laws to the Attorney General's Office and he has refused to approve it and then we file our case in the Washington, D.C.Court or if we wanted to bypass for some reason, I don't know what reason we might have, the Attorney General's Office, we proceed originally in the Washington, D.C. Court.

That is the only action, Court action, with Section 5 or the subject matter of Section 5 is concerned with.

And, we say to the Court that that terminology, under this Section, was referring to the declaratory relief or declaratory judgment in the Washington, D.C. Court, and this Court does not have jurisdiction because the three-judge Appellate Court -- I mean, three-judge District Court in the Southern District of Mississippi was improperly convened.

If any action lied at all, forgetting about all the other technicalities, the jurisdiction would have been in a one-judge District Court.

And, as I say, of course, we'll admit that is not necessarily compel, as Justice Holland said in the Swift case, does not compel a reading of that but it is a more appropriate reading, and the rationale of the Swift case was, in construing 2281, that anytime we construe any section which gives jurisdiction to a three-judge Court we should construe it in a limited manner to keep from placing the burden upon three judges and the Appellate Court.

Now, counsel opposite says that it is appropriate.

Why is it appropriate?

Because of the rationale of 2281 and the concern of Congress that we have here a clash between the State of Mississippi and appellants on what we can enforce and what we cannot enforce.

Well, of course, that isn't true, and that was laid to rest in the Swift case.

We are not really concerned with a clash between the State of Mississippi and its laws on a constitutional ground.

We are merely concerned with the same clash that you found in the Swift case with the Supremacy Clause and whether or not what we had done in Mississippi is in disregard to an Act of Congress.

So, it does not rise to the dignity of what Congress was worried about when they enacted 2281.

It does not rise to the dignity of a one-judge District Court enjoining the operation of a state law on unconstitutional grounds.

And, as this Court held in the Philips case, if we are merely talking about whether an individual was unconstitutionally applying the law, even in that case, we would not have this situation.

Justice Thurgood Marshall: Mr. Allain, why do you think they require a three-judge Court from the district on the same Act, instead of having a one-judge?

Mr. William A.allain: In the District Court of, D.C.?

Your Honor, when you go to the Washington, D.C. Court, you go up there as the petitioner, but you have to prove this and the burden of proof rests on you.

You have to prove that this law was not passed for the purpose and effect of denying someone their constitutional rights, voting rights, because of race.

It is a Fifteenth Amendment question in that sense.

You would think that 2281 would give you jurisdiction.

There is a colloquy between Senator Irving and Senator Katzenbach -- I mean, Attorney General Katzenbach --

Justice Thurgood Marshall: Councilman.

Mr. William A.allain: Which we have cited in our brief.

Justice Thurgood Marshall: Yeah, I know.

Mr. William A.allain: And, which say even though you have the same effect, even though that Court is making a declaratory judg -- is denying your declaratory judgment is what they're doing, in essence they are saying this.

You have not proved that the purpose and effect of this Act is not unconstitutional.

Justice Thurgood Marshall: I thought that the reason was they didn't want one single judge to pass on life and death of a state statute, one, and, two, rapid access to this Court was the reason for the three-judge Court in the District of Columbia.

Mr. William A.allain: You're absolutely correct, Mr. Marshall.

Justice Thurgood Marshall: Well, that's -- I think that Congress is a little on the other argument that when an individual sues he has to have -- one judge is enough.

Mr. William A.allain: With all deference to Your Honor, it does not because it does not draw into question the same type of Act.

Justice Thurgood Marshall: I see.

Mr. William A.allain: It does not draw in the question on constitutionality.

It does not draw in the question of the constitutionality of the Fifteenth Amendment.

It merely draws into question what was drawn in the question in the Swift case, the Supremacy Clause in which this Court said that that would not reached the dignity in which Congress was concerned with.

And, I think that colloquy between those two gentlemen in the hearings recognized it was actually -- what you're doing is the same thing.

Justice Byron R. White: But, it seems to me that if there's a private right of action to determine coverage in the first place, it's either going to be under Section 5 or it isn't going to be anywhere, isn't it?

I mean, the right of these parties to be in Court at all to determine the coverage of Section 5.

Mr. William A.allain: That's right, Your Honor.

That's correct.

Justice Byron R. White: It -- their right either arises from Section 5 or it doesn't exist.

Mr. William A.allain: If they have --

Justice Byron R. White: Isn't that right?

Mr. William A.allain: If they have a right --

Justice Byron R. White: In either --

Mr. William A.allain: Your Honor, it is not really -- I hate to get in rights because we've made the distinction in our brief to the Court between remedies and right, but let's forget about that in this instance.

If they have some kind of right to enforce Section 5, they have another jurisdictional statute which they have alluded to, which they have asserted in their complaint that they had been denied some right given to them by Congress.

But, we are merely talking about what did Congress mean about is that a right under this pursuant to or is it pursuant to a general jurisdictional statute of a right which hwas vested under Section 5?

Justice William J. Brennan: Forgetting right, do they have a cause of action which arises under Section 5?

Does the individual get the word "right?"

Mr. William A.allain: No, they do not.

Justice William J. Brennan: They do not at all?

Mr. William A.allain: They do not.

Justice William J. Brennan: Well, then, it wouldn't matter whether it was a single-judge or a three-judge Court.

How could it?

Mr. William A.allain: Justice White had, I think, assumed that they had a right under Section 5.

Justice Byron R. White: Well, I don't --

Mr. William A.allain: I thought this question to me was the assumption of a right.

Justice Byron R. White: I don't care what words you use.

I just want to know whether -- what dose Section 5 say, any action under this Section?

Mr. William A.allain: That's right, Your Honor.

Justice Byron R. White: Will be heard by a three-judge Court.

Mr. William A.allain: In the action under, and what we had claimed in the --

Justice Byron R. White: Alright, now, I'll just -- if this action isn't -- is auth -- if these people can stay in Court at all with this cause of action, is it an action under Section 5?

Mr. William A.allain: Not in intent of Congress in the way the language is written.

The jurisdiction --

Justice Byron R. White: Well, how will they get into Court at all then?

Mr. William A.allain: The jurisdiction is what we're speaking of.

Justice Byron R. White: Where does their cause of action come from though?

Mr. William A.allain: It comes from the general jurisdiction statute which allows him to seek injunctive relief, I believe.

Justice William J. Brennan: But jurisdictional statutes don't create cause of action.

Justice Byron R. White: Heavens, no.

Mr. William A.allain: What I'm trying to --

Justice William J. Brennan: Really, what they're asking, as I understand, you've isolated this to the single question.

They're asking that it be adjudicated that Section 5 covers these Mississippi statutes.

So, it's a question of coverage within or under Section 5, isn't it?

Mr. William A.allain: I'm -- yes, Your Honor, but --

Justice William J. Brennan: Isn't it practically what -- that's what they're after.

They want the Court to say that these Mississippi statutes come within the purview of Section 5.

Mr. William A.allain: Right.

Justice William J. Brennan: If that's true --

Mr. William A.allain: They're asking for --

Justice William J. Brennan: Why is it that the Voting Rights covers Section 5?

Mr. William A.allain: They are asking for more.

They are asking for the language that any action brought under --

Justice William J. Brennan: Essentially, isn't that what they're after?

Mr. William A.allain: Essentially, that's what they're after.

Justice William J. Brennan: That's what this lawsuit is all about and whether or not it is obvious to the Court is certainly, as a matter of fact, that there are meetings there.

Mr. William A.allain: With difference to Your Honor, I do not think that if we found that they had a right existing or given to them by Section 5 that the action under Section 5 which Congress was referring to is that action.

I think that's under the general jurisdictional statute.

Justice William J. Brennan: That's right that the Congress didn't say any action under Section 5.

It's limited only to an Act that's brought into Court, isn't it?

Mr. William A.allain: Right.

Justice William J. Brennan: Nevertheless, it certainly is arguable if their cause of action, namely where Mississippi is practically covered under Section 5, it's an act under Section 5, that Congress said any action under Section 5 that's brought into Court.

Mr. William A.allain: Yes, Your Honor, I said it was not -- this language did not compel that reading.

It was a more appropriate reading of it, and with the rationale of the Swift case.

I would not say -- I stand before this Court and say this Court would be way off base if it did so hold, but I think our interpretation in the legislative history and the type of action talking about in the three-judge situation would lead to the more appropriate reading which we say should be the reading.

Justice William J. Brennan: The legislative history for that --

Mr. William A.allain: Yes, sir.

Justice William J. Brennan: Because I've forgotten it.

Mr. William A.allain: The legislative history is rather weak in that particular --

Justice William J. Brennan: Yes, it doesn't appear that it came in, in connection with some adamant versions only to the District of Columbia course of action, does it?

Mr. William A.allain: I'm not too sure of that, Your Honor.

Justice Abe Fortas: Well, the United States suggested to us that the language as originally drafted said such action, which would seem to refer to the action brought in the District of Columbia and that was later changed, according to the United States, to any action under this Section.

Do you have any observation on that?

Mr. William A.allain: Your Honor, I do not give a lot of weight into the change into the language.

I do not read it and see how it changes necessarily the reading of the language.

And, as we all know, of course, somebody in Congress might have thought, one, the language might be better to bring about something and I hate to get into reason why somebody brought the language.

Justice Abe Fortas: But you don't have --

Mr. William A.allain: I don't think the reading itself necessarily means that.

Justice Abe Fortas: You don't have any offsetting --

Mr. William A.allain: No, Your Honor, I do not.

Justice Abe Fortas: Legislative history.

Mr. William A.allain: I don't have no offsetting legislative history.

We say that the private parties lack standing for this for this simple reason.

I think it showed and it's illustrative of what we've been doing here today.

The 1965 Voting Rights Act is more like a jigsaw picture.

I'd rather say picture than puzzle.

And, it must be read together and, like a jigsaw, when you pull one piece of it out and isolate it and say, now, what does this section say, that's when you find yourself in trouble.

Now, we think the entire Act, as we said before, was remedies and not rights.

And, as this Court said in the South Carolina case, speaking through the Chief Justice, that this Act created new and stringent remedies that this Act and Congress had marshaled an array of weapons to be used effectively by the United States, and we feel that it --

Chief Justice Earl Warren: For what purpose?

Mr. William A.allain: For the purpose, Your Honor, of, one, seeing that no one is denied in the future any of their constitutional rights and to eradicate what rights have been denied in the past.

Chief Justice Earl Warren: Rights, we get back to the rights.

Mr. William A.allain: That's true, Your Honor, but the Act itself, and as Your Honor stated, the Act itself, we're talking about the Fifteenth Amendment.

That is where the rights come from.

South Carolina -- in South Carolina, Your Honor said that Fifteenth Amendment is self-executed, that these people had certain rights at that time.

We passed the 1957 Voting Rights Act.

We passed the 1960 Voting Rights Act.

We passed something in 1964 and, yet, their rights under the Fifteenth Amendment had not been vindicated.

So, what had Congress done?

Congress had created new and stringent remedies, not rights but remedies.

Chief Justice Earl Warren: For the vindication of the --

Mr. William A.allain: For the vindication, and placed them on the hands of what body?

The Attorney General.

Why?

Because it is a public interest we're talking about here and not just an individual interest.

Now, it's rather odd that the government at this time takes the position that a private party can bring a lawsuit when, in the Apache County Arizona case in which we've cited in our brief citing their brief, they say the responsibility -- the complete responsibility rest with the government and, in that particular case, they tried to keep the -- some of the Indians of Arizona from intervening because they said "no, you don't have any right in this lawsuit."

We are vindicating a public right and, in their brief, they took the position that the responsibility rest in the Attorney General and they set out as one of the sections, Section 5.

Now, as Justice Black said in his dissent in regard to Section 5, this is something new in the law.

This is something that's harsh in the law.

And, as this Court said, it is harsh, but harsh means "when necessary."

Therefore, we do not believe that Congress would've placed this type of action, this type of remedy in just at the whim of any individual who wanted to bring a lawsuit and say "now, look, you haven't gone up in the Attorney General's Office first."

Look at the ratifications that might come from that.

Let's assume that we did go to the Attorney General's Office.

Let's assume that we went up there with the Act itself and said "Mr. Attorney General, here is the Act, read it and will you give us a written opinion."

And, he says -- he reads and he says "that is fine,I have no objection to it."

I don't know of any publication of that.

I don't know how any citizen is going to know about that, but every citizen in Mississippi or Alabama, Virginia, or anybody who come within the Act can then say "well, I'm just going to bring a lawsuit because I don't think you've gone to the 1965 Voting Rights Act."

Justice Thurgood Marshall: Well, Mr. Allain, what happens if the Attorney General never hears of the Act?

Mr. William A.allain: Never hears of the Act?

Your Honor, I think the Act --

Justice Thurgood Marshall: What does the --

Mr. William A.allain: Excuse me.

Justice Thurgood Marshall: What does the person who's injured, what can he do about it?

Mr. William A.allain: Bring it to the attention of the Attorney General of the United States.

Justice Thurgood Marshall: How?

Mr. William A.allain: By letter or, I hate to say telephone conversation but, by any method to relay to the Attorney General's Office.

Justice Thurgood Marshall: But he couldn't go to Court about it?

Mr. William A.allain: He could not go to Court about it under Section 5, Your Honor.

He could go to Court about it only on the facts that it was unconstitutional under the Fifteenth Amendment.

Justice Thurgood Marshall: Well, so many was not unconstitutional.

It was just a violation of the Act.

Mr. William A.allain: No, Your Honor, he could not.

Justice Thurgood Marshall: So that the people that the Act was passed to protect would be out of luck.

Mr. William A.allain: They would not be out of luck, Your Honor, because we will have to assume and Congress assumed that the Attorney General would do his duty.

They have to assume that --

Justice Thurgood Marshall: Well, I -- couldn't they assume and couldn't Congress assume that the State of Mississippi would've submitted it?

Mr. William A.allain: We would've submitted it if we felt, Your Honor, that it was within the purview of the 1965 Voting Rights Act.

But, getting back to Your Honor's question of what would the individual have to do, he could submit that to the Attorney General's Office not for approval, don't get me wrong.

Justice Thurgood Marshall: Well, suppose he submits it to the Attorney General's Office and the Attorney General's Office doesn't pay any attention to it.

Now, what rights does the citizen have after 60 days?

Mr. William A.allain: As to the 1965 Voting Rights Act and to the suspension and the submission, none, Your Honor, because that's not a right of his.

It's not his -- really the right he's got to do anything about it.

Justice Thurgood Marshall: Well, what good is it to him?

Mr. William A.allain: Well, Your Honor, there's a section in the Act which says that if a man is denied the right to vote, the action of vote having counted, that he can submit that to the Attorney General and the Attorney General may bring an action, and they bring an action.

Justice Thurgood Marshall: I'm saying this is a thoroughly uncooperative Attorney General.

Then, the individual citizen is without remedy.

Mr. William A.allain: Well, Your Honor, he --

Justice Thurgood Marshall: Since you say that this is the remedy, he is now without a remedy.

Mr. William A.allain: He is without remedy to see that the State of Mississippi first submitted.

This is something new.

It's not something that he had as under the constitution.

It was something Congress came up with.

If Congress wanted to limit who they would allow to sue, that's Congress' --

Justice Thurgood Marshall: Well, what happens if some Court disagrees with you in the State of Mississippi as to whether or not this is covered by the Civil Rights Act and the Attorney General does nothing, nobody else does anything, and we have a right, we've got a remedy or remedy without anything?

Mr. William A.allain: You have a remedy, Your Honor.

See, that phr -- I don't like to further the right.

Justice Thurgood Marshall: What's the remedy?

Mr. William A.allain: Because no right was conveyed upon him.

Justice Thurgood Marshall: What's the remedy that may enact --

Mr. William A.allain: That is the remedy.

Your Honor, what I'm trying to say is that it has created no right in the private citizen.

The private citizen says "look, I got a right but got no remedy."

The right was created -- or the remedy was created by Congress and it gave it to the Attorney General.

Now, the man standing over him has not been heard because we're not talking about constitutionality of the Fifteenth Amendment.

We're talking about a mere process that Congress felt was necessary to inform the Attorney General.

Justice Thurgood Marshall: If the man is denied the right to vote because of race, he's slightly injured.

Mr. William A.allain: He can bring an independent lawsuit, Your Honor, based on that.

Justice Thurgood Marshall: In what Court?

Mr. William A.allain: Well, as we said in the Court here today that if he gets -- if we extend the law, as the appellants attempt to extend today --

Justice Thurgood Marshall: No, under your theory.

You said he has a remedy in a Court.

Which Court?

Mr. William A.allain: Well, if -- he had a remedy in the District Court of Washington, D.C.

Justice Thurgood Marshall: Where do you get that from?

Mr. William A.allain: If --

Justice Thurgood Marshall: Section 5?

Mr. William A.allain: Sir?

Justice Thurgood Marshall: Do you get that from Section 5?

Mr. William A.allain: I get that from the Section which says that, as far as the declaratory judgment, it must be by the -- it's in Section, I think, Section 12.

Justice Thurgood Marshall: Do you say that if these appellants in this case had filed a case for a three-judge Court for the District of Columbia, it's alright?

Mr. William A.allain: You're right, sir.

Justice Thurgood Marshall: That's your position?

Mr. William A.allain: That's my position because its' not Section 5 that takes away the authority.

It's Section, I think, Section 12 which says no -- or 13, no declaratory judgment shall be entered except in the Washington, D.C. Court, but that is talking strictly to Section 5 and Section 4.

But, I think we must tie this -- the whole thing here that the government themselves had stated, that the responsibility of enforcing this Act is in them.

If, let's take on the Section 4.

We had a tested advice.

Now, the Act is brought in Washington, D.C.

You can't go to the Attorney General's Office under Section 4.

You bring it in Washington, D.C.

You have the burden of proving that there's been no purpose of effect of discriminating the last five years.

There's no right of intervention for a private party.

That's a position that the Attorney General's Office took in the Apache County case.

So, we have here again something that you might say is a remedy, but no right in this private individual to come in and say "yes, there had been some discrimination."

Now, in the Apache County case, the District Court did allow an intervention but under its inherent powers, but the Attorney General's Office took the very opposite view.

Now, the next question, Your Honor, that we come to if the Court did not buy argument on all this other and felt the jurisdiction lies here and the private citizen does have the right, we're talking about redistricting, reapportionment in Adams and Forrest Counties.

Now, we say the legislative history, the legislative intent, had absolutely nothing to do with reapportionment.

We say that the con -- the intent of the Act had only to do with things which went directly to the vote of the registration and nothing absolutely to do to how a candidate shall be selected.

Now, here, they're talking about a dilution of vote.

There'd been no dilution of vote in this particular case.

Instead of voting for one supervisor, they may go for five supervisors.

The counties had only done what this Court has commanded in the Avery case, to give the vote to be weighed across the board.

Now, we don't think there's anything in the legislative history, in the debates, in this case -- this Court's decision in South Carolina that would ever say that reapportionment cases or redistricting cases were contemplated under the provision of Section 5 of the Voting Rights Act.

And, it's -- to look at the hearings themselves, and this is merely what we call a freezing, what we've got here is a legislative freezing.

On several occasions, the Attorney General alluded to the fact that this is nothing more than like a reapportionment case where the Court says "this plan is wrong, go back and get another plan and come in here and let's look at it, and if we like it, fine, stamp of approval."

But, nobody asked the next question, the very next logical question, if it were ever in the minds of anybody.

Reapportionment has been in the minds of Congress.

They'd been trying to get an Act passed so they can take it out of the Court's hands.

The next logical question would've been "well, Mr. Attorney General, does this apply to reapportionment cases?"

He was talking about the same type of authority, same type of freezing principle and, yet, nobody asked the next logical question.

Why didn't they ask the next logical question?

Because everybody in those hearings, the President already knew that they were not talking about redistricting and reapportionment.

That they were talking about -- they would directly affect the vote.

They were talking about tests and devices and then supplementing -- I mean, putting something else in that effect.

We know here that Section 4 and Section 5 are connected.

Section 5 goes out of the window once Section 4 is no more applicable.

Why?

We're talking about Section -- tests and devices in Section 4, and the same type of thing they were talking about in Section 5 was saying that you're going to supplant for the tests and devices.

We say to the Court that if this Court finds that this type if actions come within the purview of the Voting Rights Act of 1950 -- 1965, you have almost started the reapportionment, You have taken out of the District Court the right to look at any plan and approve that plan, and they had placed in Washington, D.C.

Now, there had been a lot of talk here this morning about "well, if you submit your plan, if it's good, you'll get it approved."

Suppose a count -- a state doesn't want to submit the plan.

Suppose a county doesn't want to submit the plan.

What are you going to do about it?

This would completely establish what the Reynolds case said, what the Fourteenth Amendment case has said.

Justice Abe Fortas: Well, what do you suggest we do about it?

Supposing that this Court holds that for your opponent here, and suppose that it is -- this Court should decide that the statute commands it to be incumbent upon the state to submit these plans and suppose the state doesn't do it.

Is that what you're putting up test, really?

Mr. William A.allain: You mean the relief to be granted by this Court, Your Honor?

Justice Abe Fortas: Yes, I'm asking if you're really suggesting to us a state of facts in which this Court holds that the Congress required that these matters at issue in this cases be submitted to the Attorney General.

Are you really asking us what happens if the state doesn't comply?

Mr. William A.allain: Your Honor, I only used that argument as to the effect that I do not believe that Congress ever intended to fully roadblock or to impair or put an obstacle in the path of the rationale of the Reynolds case and Avery versus Midland Texas.

I think --

Justice Abe Fortas: Yes, but I just thought --

Mr. William A.allain: I'm just posing that before the Court.

Justice Abe Fortas: I just want to make sure that you are not suggesting that we have to consider what happens if the state does not comply with our decree.

Mr. William A.allain: No, Your Honor.

I was suggesting that the, more or less, absurdity of the fact that Congress, concerned with the Fourteenth Amendment and redistricting will come along here with the 1965 Voting Rights Act, had ever intend --

Justice Abe Fortas: You're talking about that one trick in the case.

Mr. William A.allain: That's right, Your Honor, if it ever intend that that be taken out of that particular Act.

Mr. Wells, Your Honor, will direct his remarks basically to the cases which are involved.

Thank you.

Chief Justice Earl Warren: Mr. Wells.

Argument of Will S.wells

Mr. Will S.wells: Mr. Chief Justice and may it please the Court.

The first matter I want to discuss is Number 36, if the Court please, the Whitley case.

This case was originally brought challenging the amendment of the Section involved on two grounds, one, that it was unconstitutional and the other was that it was in violation of Section 5.

The constitutional issue was completely take out of the case in its entirety by stipulation.

I believe Mr. Justice Marshall asked counsel this morning, first, why he took it out and he said that he took it out at that time because we were trying to get a -- for a decision.

The present counsel was not a member of counsel at the time this matter was brought in Court at that time.

I handled it from its conception.

The stipulation was entered into at the request of Williams himself and was actually drawn by plaintiff's counsel at that time.

Mr. Derfner came along after all matters were passed.

We did not, so the only question here, as I see in this case is this.

Does this statute come within the purview of Section 5 of the Voting Rights Act?

It was not submitted to the Attorney General nor was it submitted to the Court of the District of Columbia because we did not feel that it came within the purview of the Act or required to be.

And, the Court might note, in the stipulation which is found on pages 38 and 39 of the appendix in Number 36.

I was willing to stipulate with counsel that the State of Mississippi in enacting House Bill 68, Mississippi laws of 1966, which amended the Section 3260 of Mississippi Code, did not comply with the provisions of 42 USC 1973 (c) which is Title 5.

It has not been submitted to the Attorney General or to the District of Columbia.

This is not to be construed as a concession by the defendants that the State of Mississippi was any -- under any lawful obligation to so comply with the provisions of that Section.

Chief Justice Earl Warren: What page is that?

Mr. Will S.wells: That's on -- at the bottom of page 38 in appendix A of the appendix of Number 36.

In other words, we took that position from the start.

Now, in going --

Chief Justice Earl Warren: Can I ask you, Mr. Wells, what -- how did that affect today this case right at the present time, the fact that you refuse to acknowledge that they should go to the Attorney General?

Mr. Will S.wells: If the Court please, I've taken this issues I go through to explain why I do not think it did.

Chief Justice Earl Warren: You're going to explain it now?

Mr. Will S.wells: Yes, sir.

Chief Justice Earl Warren: I see.

Mr. Will S.wells: In the hearings -- in all the hearings, if the Court please, before Congress, everything was talked about was voting, people's rights to vote, to register to vote.

The only place that I can find, after a complete reading of every -- the congressional records, all of the hearings both in the Senate and in the House, and in the debates on the Floor, and I read them all, the only place we find anything said about candidates running for office as against a person's right to vote for office, which is cited in appellee's brief in Number 36 at pages 10 and 11, we find this and it's found in page 74 of the hearing before the Subcommittee Number 5 of the Committee on Judicial and the House of Representatives of the 89th Congress.

Mr. Corman, he was talking to Mr. Burke Marshall who, at that time, was an Assistant Attorney General and one of the Chief Architects of this very Civil Rights Act which was brought as a matter of common knowledge at the recommendation and at the request of the President of the United States, as he told the Joint Session of Congress.

We find this, Mr. Corman, we have not talked at all about whether we have to be concerned with not only who can vote but who can run for public office, and that has been an issue in so many years in South in 1964.

Had you given any consideration to whether or not this Bill ought to address itself to the qualifications for running for public office as well as the problem of registration?

Mr. Marshall, the problem that the Bill was aimed at was the problem of registration.

Congress -- if there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to deal with in this Bill.

And, nowhere else have I been able to find any sort of discussion that would indicate any other different questions.

Now, Section 3260 which has been amended sets different qualifications for people running for office.

They raise the number of signatures that a candidate has to have on petition running for a statewide office from 1,000 to 10,000 at a time, and in answer to the Chief Justice's questions this morning, when there was an excess of 650,000 registered voters in Mississippi.

It provided further that because it had been invited by the Supreme Court of Mississippi, it has called attention in the Court's opinion in this case at an earlier time where a man had run -- had taken part in a primary election and then run as an independent, and the Court said he had a right to do that as a candidate because there was no statute against it, it would have to be done by legislature.

So, they provided what?

If you vote in a primary election that's going to nominate candidates to run for office, you've got the right to run in that primary if you want to again.

But, if you vote in that primary, then you yourself can't qualify as an independent candidate in the general election.

You're trying to beat the very man that --

Justice William J. Brennan: Well, Mr. Wells, isn't that at least a burden upon one's primary election vote?

Mr. Will S.wells: No, sir.

It's a burden upon a c --

Justice William J. Brennan: I know, isn't -- it says here if you -- you don't have to -- you can vote in a primary election or not but if you vote in a primary election, then you may not stand for office as an independent candidate for any office.

Mr. Will S.wells: At the ensuing elections.

Justice William J. Brennan: Well, now, isn't that at least a qualification upon one's right to vote as freely as he want to -- wishes in a primary election because you'd have to stop and think "I better not vote in this primary election because if I do, now I can't be an independent candidate for office."

Mr. Will S.wells: If the Court please --

Justice William J. Brennan: Well, isn't it, Mr. Wells, to that extent at least?

Mr. Will S.wells: Let's take the rest of the statute, if the Court please, uncoupled with it.

Justice William J. Brennan: Well, I'm only looking at what you have in the stipulation.

Mr. Will S.wells: Alright, sir.

Now, let's take the rest of the statute.

Justice William J. Brennan: Well, just -- would you mind?

In -- so far, isn't that at least on the face of it, a burden on the right to vote in the primary?

Mr. Will S.wells: It's a burden on his individual right to vote.

Justice William J. Brennan: Now, if it is, isn't it then a standard practice of procedure with respect to voting different from that enforced or in effect on November 1, 1964?

Mr. Will S.wells: For that individual?

It would be different if for that individual is concerned, yes, sir.

Justice William J. Brennan: Well, why doesn't that automatically then bring it within the coverage of Section 5?

Mr. Will S.wells: If the Court please, it doesn't prohibit him from voting.

Justice William J. Brennan: I know it doesn't, but I don't read the statute, Mr. Wells, as dealing with prohibitions from voting.

It's only whether or not a given standard practice of procedure with respect to voting is different from the enforced or in effect on November 1, 1964, and I'm just suggesting if there was no such burden on the right to vote in the primary election on November 1, 1964, and it seems to me the new statute imposes a different standard than that in effect on November 1, 1964.

Mr. Will S.wells: If the Court please, I don't think it goes that far.

I think it does -- it affects his right to run for office.

It affects his right to run for office, yes, sir, but not his right to vote.

Justice William J. Brennan: Well, it may be that your legislature intended to affect his right to run for office, but if the device they choose to affect his right to run for office is to burden his vote in a primary election, then I find it hard to see how that doesn't come within the coverage of and the purview of Section 5.

Mr. Will S.wells: If the Court please, I don't view it, in all efforts to Your Honor, in that vein.

I think it has affected his right to run for office, yes, sir, but it hadn't change the standard of his right to vote originally in the primary election.

Chief Justice Earl Warren: Didn't they tell him if you want to, you could vote.

Of course, you've got to give up your position, so that's your problem?

Mr. Will S.wells: If you're going to vote in the primary election and take part, this is not in the record and, if the Court please, might be interesting in one which counsel has drawn to.

I happen to know the reason for part of that which is not in the record and it was trying to keep republicans from getting out the democratic primary support in the weakest man and then running until somebody gets him in the general election.

That was what was happening, and that's actually what brought about the statute.

If the Court is interested, they've had no racial view at all, but that had been happening.

Anyway, deliberately, they said "let's get together.

He's the weakest man in that race and let's for him in the primary and then run somebody against him in the general election."

If they had the chance to beating him, they would.

That's the case.

Justice Abe Fortas: Republicans have constitutional rights, too, don't they?

Mr. Will S.wells: Yes, sir, they do, and I want to say, quite frankly, that I think that this election is going to show they're also a little bit farther than they were.

Now, if the Court please, we go to then -- the other legislative history in this matter.

All through it out, which is set up in our brief, everything the whole colloquy is talking about through this thing is the right to vote, the right to vote, the right to vote, the right to register to vote.

The right to run for office?

No.

That's the distinction that we make as far as this case is concerned.

Now, as to the Bunton ballot case which has to do with the appointing of superintendents of education, I can say to the Court quite frankly and quite honestly that that has given me quite a lot of concern.

Justice William J. Brennan: May I just ask you, Mr. Wells, I take it, to the extent that this problems of reapportionment in any of these cases, Bunton doesn't raise it, does it?

Mr. Will S.wells: No, sir.

Justice William J. Brennan: When you changed from an election to --

Mr. Will S.wells: No, sir.

Here's what Bunton does in this case --

Justice William J. Brennan: But, I mean, when you -- a statute that changes from an election -- elective methods to an appointive method, wouldn't that be an appor -- a reapportionment statute?

Mr. Will S.wells: Not whatsoever.

Here's the situation, if the Court please.

First, I call the Court's attention, in those cases, you haven't got the three counties involved.

Although they allude to 11, you've got only representatives of the class with 3 counties.

Justice William J. Brennan: Of three?

Mr. Will S.wells: Yes, sir.

Justice William J. Brennan: Yes.

Mr. Will S.wells: Leflore, Jefferson, and Holmes.

The pleadings themselves say we have registered voters in Jefferson County who desire to run for Superintended of Education in Jefferson County.

We bring this suit on behalf of ourselves and the class of all other voters and potential candidates in Jefferson County, the other suit says in Claiborne County, the other suit says in Holmes County.

They don't even attempt to represent the class in any counties except those.

Justice Potter Stewart: How many counties are there in Mississippi?

Mr. Will S.wells: I beg your pardon?

Justice Potter Stewart: How many counties are there in Mississippi?

Mr. Will S.wells: In Mississippi?

Justice Potter Stewart: Yes.

Mr. Will S.wells: 82, sir.

Justice Potter Stewart: 82?

Mr. Will S.wells: Yes, sir.

Justice Thurgood Marshall: And how many covered by this statute?

Mr. Will S.wells: How many are covered by this statute?

11, I believe, if the Court please.

I think it's 11.

Justice Thurgood Marshall: Why?

Mr. Will S.wells: Mr. Justice Marshall, I cannot answer that to save my life, except to suggest this.

The statute originally provided where the matter could be presented to a vote of the people to determine where that would be done and if an election was held and they voted that it could be done.

Somebody comes along and doesn't want to go through that to his county and introduces an amendment to amend it and provided that, in my county, it will be automatic and somebody else says "well, I want to get included too," and that's the way those things go.

Justice Thurgood Marshall: Mr. Wells, since you don't know and I don't know and nobody in this room knows, wouldn't it be wise for somebody to find out whether or not it was for reason of race?

I'm not saying it is, but don't you think it'd be worthy of finding it out?

Wouldn't Mississippi be happier, too?

Mr. Will S.wells: If the Court please, if I had been a member of the legislature, I've never voted for it.

If it so happens that the legislature acts very independently of the Attorney General and, quite often, not in conformity with, sometimes, our recommendations.

I frankly must say that it is a closed question.

In my opinion, of course, the constitutionality of that is not involved.

It's a question of whether or not he'd conform to that.

I'm frank to say that if this Court finds that this three-judge Court was promptly convened and had jurisdiction to determine that question in those cases.

It is a closed question in my mind and I cannot, and will not, insist that I think that those -- that statute or those statutes do not come within the purview of Section 5.

Now, I as -- I take a complete honest position with the Court and that case there has given me con -- some concern for these reasons, it takes somebody's right to vote away from him, removes him from the voting right, and I think this.

I think if it were attacked on constitutional grounds as if racing ahead and they had left that in the case before the Court on the basis of the unconstitutional ground or I think that that statute is in violation of Mississippi's own law.

I think it's local and private legislation attempted to have been enacted under a general statute and I think if it were attacked in the Mississippi Courts, it would be stricken down in the State Courts.

I think they had a complete bran -- an actual remedy.

They go right into State Court and the Courts would've held it -- would've stricken down on the grounds that it's local and private legislation attempted to be enacted as a general statute right in the face of the constitution.

Justice Potter Stewart: Of course that -- that may well be, but that really is entirely irrelevant to the issue here before this Court, isn't it?

Mr. Will S.wells: It's entirely irrelevant to the issue in this Court and if the Court please and I'm saying to this Court, quite frankly and quite honestly, that it is a much closer question as to whether it comes under the Section 5 --

Justice Potter Stewart: Section 5.

Mr. Will S.wells: In my opinion, that either the Whitley case or the other, and I am not going to say to this Court and urge this Court to say that I take the absolute position that it does.

It's in the area there.

I do think that, in the Whitley case that, that Section has to do with candidates, what else about candidates, and I do not believe it is within the purview of Section 5, honest about -- I'm very frank about that.

And, if the Court please, I -- unless there are some questions that the Court wants, I think the rest of the matter has been covered.

Chief Justice Earl Warren: Very well.

Mr. Derfner.

Rebuttal of Armand Derfner

Mr. Armand Derfner: May it please the Court.

The position of all the appellants on the question of relief is as follows.

We believe that Section 5 imposed an additional requirement for putting into effect a state statute within its coverage that, in the absence of fulfilling that requirement, the statute was not in effect and it was as if no statute had been passed.

Therefore, we believe that, since the statutes in these cases have been void and are now void, that we are entitled to new elections that are retrospective relief as well as prospective relief the day this Court reverses the judgments below.

At that point, the proper relief would be for the Court to remand to the Court below for new elections.

We don't think it's the job of this Court or the Court below to tell the state what to do about whom to submit the statute to, about whether to submit the statute at all, or about what to do if it wishes to put the statute into effect.

If the state wishes to submit the statute to somebody and come back to the Court below before such time as is fixed promptly for holding a new election, then that Court might, within the exercise of its equitable discretion, decide to, if there were a favorable determination, favorable to the state, might decide not to hold the new election.

But, we think that the state -- the Court below should proceed expeditiously to hold new elections, that those new elections should be held and --

Justice Byron R. White: Do you think there's any analogy, as you know, in many reapportionment cases where the Court has thought that there was malapportionment that an election was coming up.

The Court has sanctioned the conduct of the election, although under a malapportioned system because of the difficulty of getting things corrected before the election came along.

We did that, didn't we, in several cases?

Mr. Armand Derfner: Yes.

Justice Byron R. White: Don't you suppose there's something -- here, you have situations which are now passed.

Mr. Armand Derfner: Yes, but at the time these cases were brought, in each case, the proper thing for the Court below to have done and the convenient thing in all cases would've been to grasp the --

Justice Byron R. White: Yes, but the Court dist it.

The Court didn't -- we're faced with a fact, not a theory as to saying --

Mr. Armand Derfner: That's right.

Justice Byron R. White: I'm just wondering over my question to you was, don't you see any analogy at all, Mr. Derfner, in what we've done in the reapportionment cases?

Mr. Armand Derfner: Yes, I do, but I think that, as Hamer against Campbell, a Fifth Circuit case, says, one of the considerations in exercising the equity jurisdiction of a Court is how difficult it would have been at that time, how disruptive it is now.

And, we think it is quite within the equity jurisdiction of this Court and the Court below, and would be the proper remedy to order to go back to the situation as it stood at that time.

Otherwise, we think the rights are --

Justice Byron R. White: You think we should do that and we should order the District Court to restore the status quo as quickly as can be, is that --

Mr. Armand Derfner: Yes, we do.

Justice Byron R. White: Which, necessarily involves, I suppose, the ousting of the present encumbrance and new elections under the old laws, is it not?

Mr. Armand Derfner: That's right.

Chief Justice Earl Warren: Don't you think, Mr. Derfner, that it's hard to be pleased that there is less reason for doing that in this case than in the reapportionment cases for several reasons, that in the reapportionment cases, we held that the apportionment was unconstitutional, yet we gave them the chance to direct it.

In this case, where all this is asking is to submit the procedure, to be submitted to the Attorney General without regard to whether it is unconstitutional or not, that it might be better judgment to make a Fairley prospective in this case and, because the Attorney General might say "no, that's -- this is alright, there's no constitutional infirmity here and, therefore, the election is alright."

Mr. Armand Derfner: I think, Mr. Chief Justice, we have to look at what the statute was meant to do.

The submission to the District Court for the District of Columbia or to the Attorney General was not regarded as a formalistic matter.

It was regarded as something of --

Chief Justice Earl Warren: Not regarded as what?

Mr. Armand Derfner: Not regarded as a formalistic matter.

It was regarded to something --

Chief Justice Earl Warren: Didn't it say that?

I didn't notice.

Mr. Armand Derfner: No, it was regarded to something of great substance.

It was regarded as a way of making certain that this statute has -- had, as close as possible to automatic effect, as we said in South Carolina versus Katzenbach.

It doesn't seem to me that Congress, in seeking to pass, an -- as automatic as possible, a trigger statute, would've meant to allow these rights to be delayed for so long.

I might say -- what I was trying to say before in connection with the lower Court's equity jurisdiction is that the -- if the Court orders new elections, I should think that if the state in the interim were to go to the Attorney General and get a favorable determination before those new elections took place, it would be well within the equitable jurisdiction of the Court below to set aside the order for new elections.

All I'm saying is that the Court's procedure should go on and not -- and whatever can be done by the state within such seasonable time as exists before the election which, almost certainly, would include time to get a favorable response if one were forthcoming from the Attorney General, could be effective.

But, I don't think that the Court should wait until the state has a chance to seek a declaratory judgment in the District of Columbia then appeal that to this Court.

By that time, what we've had is close to the five years of the operation of the statute, eaten up by the state's recalcitrance, and I don't think that's what Congress intended.

Chief Justice Earl Warren: Well, is it your position then that if we follow you, that we remand this case and require the matter to be submitted to the Attorney General, you're going to call for elections?

Mr. Armand Derfner: No, Your Honor, I believe this Court's proper order should call -- should direct the Court below to call for new elections.

What the state wishes to do in the way of submission or to whom it wishes to submit is up to the state.

If the state wishes to submit, it may do so.

If it gets an answer back in time before the election and it certainly would have time to, that's fine.

If the state does not wish to submit and it might decide, for example in the Bunton case, that it doesn't wish to submit, then it's not up to this Court or the Court below to tell -- to suggest to the state what it should do to put -- to comply with its obligations under Section 5.

Justice Thurgood Marshall: Well, it's a c --

Chief Justice Earl Warren: If we order the elections and the Attorney General approved the statutes, then they'd be frustrating the mandate, don't you think?

Mr. Armand Derfner: No, because I think, in that event, if the Court below decided that, in its equitable discretion, that the approval, even at this late date, indicated that the state's error was, in effect, harmless, I think that would be quite consistent with this Court's mandate because it would say that this great duty of the state, this not merely formalistic duty, though it had not been done before, had been done now in a way that showed that the statute was proper and could be put into effect.

What we're talking about -- in a sense, some of these things don't fit tightly into logical boxes, but we think they were talking about the most practical way of solving the statute and petition the rights --

Justice Abe Fortas: May I ask you if there's another way of getting at it that a possible directive might be that, unless the state chooses to submit the matter to the Attorney General or the United States District Court for the District of Columbia and unless, after such submission, a favorable response is given to the state by the Attorney General or the Courts, then, in that event, the District Court shall order new election.

Mr. Armand Derfner: The problem was --

Justice Abe Fortas: Is down to?

Mr. Armand Derfner: No, Justice Fortas.

Justice Abe Fortas: No?

Mr. Armand Derfner: Not quite, because we're willing to do that in connection with the Attorney General, submission to the Attorney General, because, as a practical matter, there'd be a chance -- there'd be time to get a response from the Attorney General before any new election were held, and we're willing to do that because we don't believe that would hold anything up.

We're not willing, though, to agree that that relief should be held up until a submission to the --

Justice Abe Fortas: Well, I know, but you're raising questions to whether we should, in effect, as a penalty for what arguably is a state action here, compel the state to go to the Attorney General rather than to pursue what is a statutory alternative, namely to go to the District Court for the District of Columbia.

Mr. Armand Derfner: We think the baseline, Justice Fortas, is that the state is not entitled to put the statute in effect, that the statech ha -- state had no statute until such time as it complied.

We think that a Court has equitable discretion to essentially give the state more than it's entitled to, but not where that might result in frustrating appellant's rights for an additional year or two.

Print this transcript Transcript: 

Argument of Norman C. Amaker

Chief Justice Earl Warren: oNumber 3, Richard Allen, et al., appellants versus State Board of Education et al.

Mr. Amaker.

Mr. Amaker: May it please the Court.

This case on appeal here from a three-judge Court for the Eastern District of Virginia presents two issues of first impression in this Court: One constitutional, the other statutory.

Respecting the right of illiterates who, as a consequence of the passage of the Voting Rights Act of 1965, became eligible to vote for the first time in Virginia and elsewhere to cast a secret ballot for the candidate of their choice and to have that ballot counted for their candidate just as every other qualified voter in the state of Virginia.

That constitutional question is whether these illiterates who, by the last census, were more than 3% of the persons in Virginia over 14 years of age, can, consistent with the Fourteenth Amendment, be barred, via Equal Protection Clause of that amendment, be barred from protecting their right to a secret ballot by use of a gum sticker bearing the name of the candidate of their choice.

In face of a Virginia statute requiring that any write-in vote be in the voter's own handwriting, the statutory issue is whether the handwriting provision of this statute which is Virginia Code Section 24-252, the text of which is at page 2 of our brief and at page 68 (a) of the appendix, is a test or device prohibited by subsection 4 (a) of the Voting Rights Act, the complete text of that section is at page 5 -- begins at page 5 of our brief.

Our contention on the constitutional issue is that the Equal Protection Clause is violated, because illiterates who want to cast a write-in vote without disclosing the nature of that vote to state officials are prevented from doing so, while Virginia has provided for the protection of the secrecy of the ballot for other classes of voters.

On the Voting Rights Act issue, we assert the refusal to count the illiterate's write-in ballots, which is what occurred here, as a denial of the right to vote, as defined in the Voting Rights Act of 1965, by using a prohibited test or device.

Now, at the threshold, because this Court postponed decision as to jurisdiction, is the question of the Court's jurisdiction to decide these issues on this appeal?

The appeal, of course, is based on 28 U.S.C. Section 1253, in that the appeal is from an order denying a permanent injunction in a civil action required to be heard and determined by a District Court of three judges.

The argument that the case is one that is required to be heard by a three-judge Court is of course based on 28 U.S.C. Section 2281.

The argument is in our brief beginning at pages 23.

In sum, it is as follows:

First, that 28 U.S.C. Section 2281 requires a three-judge court to hear a case seeking an injunction against the enforcement of a state statute on the ground of its unconstitutionality.

That is the claim that appellants presented to the District Court here.

Second, the complaint met the formal requirements for invoking the three-judge Court jurisdiction.

The single district judge who received the application for the three-judge Court acted routinely on the application and, indeed, the three-judge Court itself never raised any question as to its jurisdiction and proceeded to decide the case on the merits of both the constitutional and the statutory issue.

Fourth, the appellees never raised any question as to jurisdiction in the District Court, and I do not understand their brief in this Court to be raising any question as to jurisdiction now.

Fifth, certainly, the constitutional question is a substantial one.

It's one of first impression and, consequently, it has not been foreclosed by any prior decisions of this Court, and the inclusion of the statutory claim under the Voting Rights Act did not operate to divest the three-judge Court of the jurisdiction that it acquired as a consequence of appellant's constitutional claim.

And finally, what is obvious, Virginia Code Section 24-252 is a statute of statewide applicability in Virginia, and so there is no question of dealing with a statute only local in application.

We also joined in our brief and arguments, beginning at page 28, an alternate jurisdictional ground under subsection 4 (a) of the Voting Rights Act, but it seems that the constitutional basis for the jurisdiction of the three-judge Court is sufficient and, with the Court's permission, I'd just like to pass on to the merits.

Now, turning to the merits, I think it's important to state a couple of propositions.

First, the Court is not being asked to rule on the question of whether the Fourteenth Amendment prevents a state from barring the use of stickers by all segments of the electorate at any time.

Now, to the extent that the state courts, a handful of them, themselves have dealt with that question, the majority view has upheld the right to use stickers and those cases are cited both in our brief and in the brief of the appellees.

Nor is the Court being asked to deal with a question of whether Virginia had the right to set a voter qualification because the effect of the Voting Rights Act on this proceeding was to enfranchise illiterates.

So, the real question before this court is one of the state's responsibilities toward illiterates who are qualified voters with respect to two areas.

First, the preservation of the secrecy of their ballot and, second, with respect to the assurance, the certainty to them that the ballot will be counted for the candidate of their choice, thus, preserving their right to choose.

Now, these issues arise out of the following circumstances.

Samuel Tucker, a well-known Negro civil rights lawyer was running as a write-in candidate for Congress in the last congressional election in 1966 from Virginia's Fourth Congressional District.

Now, the Fourth Congressional District of Virginia is in an area that's commonly called Southside Virginia, and it is an area in which there exists the largest Black population in the state and also the largest percentage of the state's illiterates.

The last census indicated that persons over 14 years of age in that district, approximately 94,000, were persons who were illiterate and --

Justice Potter Stewart: Over -- that was over 14 years of age?

Mr. Amaker: I'm sorry.

The figure I gave you, Mr. Justice Stewart, was for the State of Virginia at large.

The state as a whole had -- in the Fourth Congressional District had 22.9% of persons over 25 years of age.

Justice Potter Stewart: Who were illiterates.

Mr. Amaker: Now, on the ballot were listed two White candidates, the incumbent, Mr. Watkins Abbott who had been, to that point, serving in the Congress for 20 years since the 80th Congress, and his opponent, the republican candidate, Mr. Silva.

Now, Mr. Tucker, who had run in the previous congressional election and who was then listed on the ballot, did not qualify in time for his name to be listed on the ballot in this election and he was later urged to run as a write-in candidate by his supporters who were in the main Negroes who wanted no part of either candidate who was listed on the ballot.

Now, they sought to maximize the vote for Tucker by inclusion of this relatively substantial number of newly enfranchised illiterates who, as the District Court found, were, and I think this language is of some significance, were registered voters but who were unable to spell accurately or to write legibly.

Now, as the Court found, just to consider the choices that confronted the persons in these situations, it seems to be there were three.

One, of course, was not to vote at all.

Second, of course, was to vote for someone whose name was on the ballot that they didn't want.

And, third, was to disclose their vote to White state election officials who, pursuant to Virginia law, are appointees of the dominant political parties in the state in an area like Southside Virginia, an area which includes Prince Edward County which is familiar to this Court from prior litigation, an area in which they could anticipate the kinds of things that the Civil Rights Commission reports has highlighted and, indeed, the kinds of things that were the -- resulted in the passage of the Voting Rights Act in the first place.

So, to solve the dual problem of being able to exercise a choice but, at the same time, trying to keep that choice hidden from the dominant White political apparatus which had opposed for decades the participation of Black members of the electorate, they used what to them was a very simple means of having printed gum stickers, just the form that I'm demonstrating here where this is plaintiff's Exhibit 1, it's in the record, which simply said S.W. Tucker.

The point being that the illiterate person, when he went to the polls, could simply tape, stick, put that on the ballot, fold his ballot and, in accordance with the Virginia procedure, hand it to the election official for deposit in the ballot box.

Now, the proposition that's urged by Virginia is that the use of stickers is per se invalid and apparently, in reading the District Court's opinion, that Court thought that this was a central issue in the case and that the Virginia legislature had forbidden their use in total.

But, I think this, of course, misses the point which is that once these persons were enfranchised by the Voting Rights Act of 1965, it became the Virginia's responsibility to provide some means for assuring the secrecy and the certainty of the ballot among all its qualified voters.

And, in fact, Virginia has, and prior to the 1965 Voting Rights Act, made accommodations with respect to these qualities with respect to other classes of voters.

Virginia's Constitution itself guarantees the right of secrecy of the ballot and there are several other provisions in the state's code, all of which fixed on the importance of keeping the ballot's secret, but Virginia has not done this in the case of these illiterates.

Rather, among all the voters who are qualified, it has set up classes of voters and discriminated among them both with respect to the question of the secrecy of the ballot, with respect to the assurance to the voter that his vote will in fact be counted for the candidate of his choice and in an additional respect too, particularly as regard to illiterates.

Virginia has made it easier for the illiterate to vote for a candidate whose name is listed on the ballot but it has made it -- it is discriminated with respect to an illiterate who chooses to vote for a candidate who's running a write-in campaign.

Justice Abe Fortas: But the Virginia statute does try to make an effort to ensure the secrecy of the ballot of a write-in by an illiterate, by placing the judge who presumably goes into the voting booth with the illiterate making it incumbent upon him to regard the confidentiality of what the voter does and make it a crime if he doesn't, isn't that right?

Mr. Amaker: No, that's not entirely right, Mr. Justice Fortas.

First of all, there is nothing incumbent in the statute which does that.

What you have reference to is in a vote-in which was sent by the Secretary of the State Board of Elections to all the judges of election in October of 1965.

It's plaintiff's -- it's defendant's exhibit 4 on page --

Justice Abe Fortas: Well, I was talking about 24-251 of the Virginia Code, but your point is that that does not apply to illiterates --

Mr. Amaker: That's the point.

Justice Abe Fortas: To illiterates, except by virtue of the subsequent director.

Mr. Amaker: That's correct.

Justice Abe Fortas: Thank you.

Mr. Amaker: The -- now -- so, the question is what about the illiterates who desire to cast write-in votes, as did the appellants here, and when it's obvious that the -- there, under the state's own categories that they set up for protecting the secrecy of the vote, are the least-favored class.

Let's just see what these differences are with respect to each of the three things which I think are extremely important here, the question of secrecy, the question of what I call certainty or the surety that the vote will in fact be cast for the person that the person intends it to be cast for, and with respect to the difficulty between voting a listed as opposed -- voting for a listed candidate as opposed to voting for a write-in candidate.

Now, of course, the literate voter is fully protected on all of these scores.

Whether it's a voting machine or whether it's a ballot box, he can vote in absolute secrecy.

He can, himself, assure that his vote is cast for the candidate of his choice and there is no discernable problem between voting for a candidate whose name is on the ballot as oppose to writing in a name, except the small amount of inconvenience that it takes to write the name.

Now, the statute that Mr. Justice Fortas referred to, 24 Section 251, it's reproduced in our brief at page 3, sets up other categories for voters who, in some sense, have to be -- had to be singled out for special treatment, and let's see what Virginia has done with them.

First, there's a category of a blind voter.

Now, obviously, because the blind voter is under a special disability, Virginia has taken some steps to assure the capacity for him to make his vote effective in all these ways that I've indicated.

But, what it has done is to say that the blind voter can be assisted in casting his vote either a write-in or voting for someone who's listed by a person who -- of his selection.

That person, of course, can be a trusted friend.

It's done one additional thing which it hasn't done in the case of the illiterates.

It has provided criminal sanctions to enforce the right of the blind voter to secrecy, the right of the blind voter to make sure that his ballot is in fact cast for the person that he intended it to.

Now, the physically handicapped voter is one who can be assisted only by an election judge which he can designate, and there are criminal sanctions as in the case of a blind voter, but what the physically handicapped voter has to do then, even though he's protected with respect to being, himself, physically able to see how his vote is cast so that he can himself determine whether in fact the vote is being cast for the person that he intend it, he has to give up some measure of his secrecy but, again, there is a sanction.

The same applies to that small, right now it's a very small, category of persons who were born before 1904, persons who would be over 80 years of age, persons who are rather registered before 1904, but the illiterate, under Virginia law as it presently stands, must sac -- for a sacrifice of his secrecy to a state official, if he chooses to vote in accordance with the election bulletin, there is no criminal sanction to enforce the -- his right of secrecy as opposed to the state election official.

He has no assurance both because he's very much like the blind voter, he can't really see how the ballot's being marked and because there is no criminal sanction, he has no real assurance that the vote is going to be cast for the candidate that he intends it to be cast for.

And, he suffers also a substantial discrimination with respect to his capacity to vote for a write-in candidate as opposed to a listed candidate.

Now, what we've called in our brief, this “crazy quilt of classification” has been condemned by this Court in a variety of other context under the Fourteenth Amendment, and we cited some of those cases in our brief.

Carrington and Rash, Rinaldi and Yeager, the Skinner v. Oklahoma dealing with the compulsory Oklahoma sterilization law.

Justice Abe Fortas: Excuse me, but I noticed in the bulletin sent to state elector, judges of the election which, on page 15 of your brief, there is an at least an admonition that the judge of election shall assist the voter upon his request and shall not in any manner divulge or indicate the name or names of the person for whom any voter shall vote.

Is it your point that there's no sanction behind that?

Mr. Amaker: Yes, I think it's --

Justice Abe Fortas: There's no -- nothing provided in the law to enforce that.

Mr. Amaker: There's no sanction, and the equal protection point, of course, is that, with respect to the other classes of voters, all of whom, like the illiterates, are qualified, there is -- Virginia has made some attempt.

Justice Abe Fortas: I understand that, but I was talking just about the -- this specific question.

Does the -- Is there anything in Virginia law that authorizes the State Board Elections to issue something like this and does that -- if there is, does that provision in Virginia law provide any sanction?

Mr. Amaker: I know of none.

Virginia says that the reason for the issuance of the election voting, which is clear, was the passage of the Voting Rights Act.

Virginia prior -- as did several other states, prior to the passage of that, had made no provisions for illiterates at all.

It obviously, particularly as a consequence of this Court's decision in Lassiter, felt that it was under no obligation.

So, when the Voting Rights Act was passed in 1965, Virginia, for the first time, tried to accommodate itself to the new requirement and this election -- electoral bulletin is the result.

Now, that's deficient in several respects, but the most important respect, it seems to me, in addition to the fact that there is no sanction, is the fact that even assuming the sanction the other very important consideration, very important at least in the minds of the persons who attempted to use the stickers in this election is the fact that they would nevertheless have to divulge the nature of their vote to a state election official.

So, the electoral bulletin really does not need that aspect of the problem.

The --

Justice Potter Stewart: What it does do, doesn't it, is equate illiterate people or include illiterate people in that group covered by Section 24-251?

Mr. Amaker: I'm not sure if it -- well, I think that's what it attempts to do.

Justice Potter Stewart: It attempts to do that?

Mr. Amaker: It attempts to do that.

I think it's interesting to note that certain terms of the last election that nobody who voted at that time knew anything about this.

This bulletin, the first time anybody heard about it was when it's introduced in -- when it was raised in a brief that was filed in the District Court in response to a motion of summary judgment.

The --

Justice Potter Stewart: Of course, that was about two years ago, for the election two years ago, wasn't it?

Mr. Amaker: But the -- yes, the election was two years ago, but the bulletin had been issued in October of the previous year, a couple of months after the passage of the Voting Rights Act.

Justice Potter Stewart: But, I suppose if it -- if whether or not there was authority to do it is -- might -- probably a matter of state law and if Virginia tells us that, as a matter of state law, there's authority to do it, then that's probably the answer, isn't it?

Mr. Amaker: No, I don't think that's the answer in so far as you have to give up a very substantial com -- part of your secrecy to a votes -- to a voting official.

Justice Potter Stewart: Well, so does anybody else who is physically unable to prepare his ballot without aid.

Mr. Amaker: Well, but --

Justice Potter Stewart: So, you may be right, but it's hardly an equal protection claim except in so far as you -- those people are grouped somewhat differently from blind people.

Mr. Amaker: Well, I think that the closest approximation, Mr. Justice Stewart, if you want to make one, is to the persons who are blind.

But, if that -- but because the illiterate, like the blind person, is incapable of really seeing the ballot in terms of making sure that his wishes are carried out.

But, it seems to me, that the responsibility is broader than that.

The responsibility is to not do the very least but to do very most to assure that the ballot is secret for everyone.

Justice Potter Stewart: And there may be all --

Mr. Amaker: And, I think it's in that respect that Virginia has failed.

Justice Potter Stewart: The -- what Virginia has forbidden and prohibited is the use of stickers to anybody, illiterate or literate, handicapped or unhandicapped, blind or not blind.

Nobody, no voter, in Virginia can use a sticker, isn't that --

Mr. Amaker: I'm not even --

Justice Potter Stewart: Isn't that so?

Mr. Amaker: That's not entirely sure, and I do know that there is an applic -- that that is what they claim in this case, but the claim is as a consequence of the statute that's under attack and the additional argument in our brief, of course, is --

Justice Potter Stewart: There's an Attorney General's opinion also, isn't there?

Mr. Amaker: Well, they've raised the Attorney General's opinion, whatever effect that has, the Virginia statute that we're challenging is one that, obviously, was suspended by the Voting Rights Act of 1965 and the -- and they so indicate.

So that, I'm not entirely sure that it's correct to state that Virginia has prohibited the use of stickers, but I -- but, if you recall, I did not cast the issue in those -- in that narrow focus.

What -- what the submission is that the Court is being asked to fix on the question of whether Virginia, consistent with the Equal Protection Clause, has fulfilled its responsibility to make sure that these illiterates have the right to a secret ballot and also have the right to somehow be asserting that when they cast that vote, where the list for -- whether for a listed candidate or for a write-in candidate, that that vote will be effective because this is the thing that was very, very uppermost in the minds of the person -- of the appellants here.

I have about three minutes which I'd like to reserve for rebuttal.

Chief Justice Earl Warren: Very well.

Mr. McIlwaine.

Argument of R.D. McIlwaine III

Mr. McIlwaine: Mr. Chief Justice and may it please the Court.

As counsel for the various Virginia election officials in this matter, I should like to attempt to establish at the outset, that, if I may, just what this case involves and, perhaps, the best way to accomplish that is to draw the Court's attention to the opening paragraph of the opinion of the Court below which is on page 67 (a) of the appendix and which contains all of the operative facts, out of which this case arose.

In four brief sentences, the Court below has stated the entire case presented by the plaintiffs in the Trial Court.

It was to the effect, in sentence one, that plaintiffs are registered voters who are unable to spell accurately or write legibly, who attempted to cast a write-in ballot in the 1966 Congressional Elections in the Fourth District of Virginia.

Second, each one attempted to do this by pasting on the official ballot a sticker in which the name of the write-in candidate had been printed and voting for the name printed on the sticker.

Third, these ballots were not tabulated in the official returns for the write-in candidate.

The fourth sentence begins “upon these undisputed facts, the plaintiffs seek a declaratory judgment that rights secured to them by the Fourteenth Amendment of the Constitution of the United States and the Voting Rights Act of 1965 have been denied.”

Now, we submit that the only question that can be raised by that set of facts is whether or not the refusal of the Virginia election officials, pursuant to Virginia law, to count these votes which were cast by means of labels or stickers or pasters violated some right secured to illiterates in the Fourth District of Virginia, a right secured by the Fourteenth Amendment or by the Voting Rights Act of 1965.

We know full well that the Fourteenth Amendment to the Constitution of the United States does not secure that right to anyone else in the United States.

The Fourteenth Amendment per se does not even secure to an illiterate the right to vote at all, much less to select the means by which he will vote.

And, the cases are perfectly clear that the matter of whether or not stickers and pasters shall be permitted as an appropriate means of voting is a matter to be determined by each individual state and regardless of whether the state permits it or rejects it.

Neither determination of that question is violative of the Fourteenth Amendment, the case in the Seventh Circuit and the case of Morris versus Fortson in the recent case in Georgia, since the enactment of the Civil Rights Act clearly settles this matter.

So, the assertion of the plaintiffs on this point is that, of all the people in the United States, they alone, as illiterates, have a constitutional right to vote by means of stickers and pasters.

Justice Thurgood Marshall: Mr. McIlwaine, how could the vote be secret otherwise?

Mr. McIlwaine: Your Honor, I do not know how it could be secret otherwise, but I'm not -- but I am of the opinion, as was the lower Court, and certain that they are not entitled to a secret ballot.

Justice Thurgood Marshall: I was just wondering if the elected official wrote-in the name of the extra person and then the guy, the illiterate person, took it in the booth.

He could tell the difference in handwriting and printing.

He could then mark the ballot.

Mr. McIlwaine: He could mark the ballot by the name of the individual.

Well, he could do that under the Virginia law.

He is simply requested to furnish him assistance and to ensure that his ballot is marked in accordance with the way he wants it.

There's no requirement that he must --

Justice Thurgood Marshall: No my point -- I beg your pardon.

My point is all the official does is to write-in the name of Joe Douglas, and then the voter takes that ballot in, by himself without the official, and puts an X, which he can do even in a form of a printed name or the handwritten name.

Mr. McIlwaine: Yes.

Justice Thurgood Marshall: By himself without anybody seeing what he did.

Mr. McIlwaine: That could be done, if Your Honor please.

Of course, the secrecy of his ballot will be compromised in any event, to the extent that he carries the ballot to an election official and asks him to write Joe Douglas' name on it.

Justice Thurgood Marshall: Well, then we get to the point, how can he get secrecy of the ballot and his right to vote at the same time if he's illiterate?

Mr. McIlwaine: Well, Your Honor, I do not understand that he can and I do not understand that he is required or entitled to the complete secrecy of his ballot either by the Fourteenth Amendment or by the Voting Rights Act.

As matter of fact, this is to the contrary.

Justice Thurgood Marshall: But, isn't he entitled to it by the Constitution of Virginia?

Mr. McIlwaine: Only to the extent that the regulations issued by the General Assembly of Virginia, the statutes pursuant to Section 36 of the Virginia Constitutions, states that in order to obtain the uniformity in election, the General Assembly of Virginia shall enact laws governing the conduct of elections.

And, Virginia has enacted those.

Justice Thurgood Marshall: Where is the requirement for secrecy?

I thought that was in the Constitution?

Mr. McIlwaine: That is also in the Constitution, Your Honor, in Section 26.

Justice Thurgood Marshall: Well, that's required of everybody but the illiterate.

Mr. McIlwaine: No, sir, it would not apply to anyone who is physically handicapped or educationally handicapped.

As the cases made clear, the secrecy of the ballot of the physically handicapped or the educationally handicapped must, to some extent, be compromised.

There's no other way you can do it.

Justice Byron R. White: Except, that you treat the blind differently from the illiterate.

Mr. McIlwaine: If Your Honor please, in that connection, two things.

Every state treats the blind or a number of states treat the blind differently, and every state has different methods of solving the problem, what you're going to do with the physically handicapped or the educationally handicapped.

Justice Byron R. White: Do you think the Equal Protection Clause was a substantial question in this case or do you -- are you objecting the jurisdiction of the three-judge court?

Mr. McIlwaine: No, sir, I -- we do not object to the jurisdiction of the three-judge Court --

Justice Byron R. White: Because of the protection.

Mr. McIlwaine: With respect to the question of whether or not they have a right to cast that ballot by means of stickers or pasters, which was the only operative fact in this case.

Justice Byron R. White: So, there was a substantial equal protection Clau -- claim stated to convene a three-judge Court for?

Mr. McIlwaine: With respect to those facts, yes.

I mean, I think in viewing the complaint, if Your Honor please, the assertion that the Virginia statute as it then stood forbid them to cast ballots by this method and the prayer for relief which attempted to enjoin it to the extent that it purported to require the voter to cast his write-in vote in his own handwriting was sufficient for the district judge in scanning that complaint to think that the question was not entirely frivolous and to call for a three-judge Court.

Justice Byron R. White: And the only issue in lower Court was the validity of the statute requiring handwriting?

Mr. McIlwaine: That -- with respect to stickers or pasters on the ballot, Your Honor.

In other words, until this case was argued here, I did not know that this was a race case.

I don't find the word Negro in the complaint.

I don't find it in the Court's opinion.

It is not -- it is a simple question of illiterates.

In the lower Court, it was simply argued that these people who were represented were functionally illiterate people without regard to race or color.

Justice Byron R. White: Well, was Section 4 of the Voting Rights Act involved in the lower Court?

Mr. McIlwaine: No, sir.

No, sir.

The only thing in the Voting Rights -- the only argument made on the Voting Rights Act was the test or device proposition that, in requiring the individual to cast the ballot in his own handwriting, that constituted a test or device.

Justice Byron R. White: And was suspended.

Mr. McIlwaine: And was suspended.

But, that was admitted, if Your Honor please, so there was no case or controversy on that in the lower Court.

Justice Byron R. White: And there still isn't.

Mr. McIlwaine: There still isn't.

Justice Byron R. White: That that was a suspended test.

Mr. McIlwaine: It was, yes.

Justice Byron R. White: And the statute then was suspended?

Mr. McIlwaine: That is correct.

And, within a week after the enactment of the Voting Rights Act of 1965, the State Board of Elections and the Attorney General of Virginia, together, issued a bulletin.

Actually, it was issued of course by the State Board of Elections which flatly states, which Your Honors will find in the record, that the Voting Rights Act had superseded, in so many words, the Virginia statute requiring people to register to vote in their own handwriting, and directing the registrars in Virginia to register people who were illiterate and couching that regulation almost verbatim in the form of the Civil Service Regulation issued to federal examiners to guide them in the method by which they would enroll illiterate voters in states affected by the Act.

Then, three weeks before the election, another bulletin was issued in which the election officials were instructed to assist illiterate voters in casting their ballots and broadening the provisions of the Virginia statute, which adhered for limited assistance only to the physically handicapped, to include the illiterate.

Justice Abe Fortas: Are you going to address yourself to the memorandum filed by the Solicitor General?

Mr. McIlwaine: Only in the few remaining minutes of my argument, I had intended to touch upon it, Your Honor, but I'm perfectly content to come to it now.

Initially, significant in respect to that memorandum is the fact that the Solicitor General does not have one line in it, which even contains a hint that he was even remotely or conceivably supporting the position stated by the appellants in this case.

Justice Abe Fortas: Well, apart from that, what he says is that, as I understand it, is that this is a manner and, under the Voting Rights Act of 1965, should've been first presented to the Attorney General.

Mr. McIlwaine: That is correct and we have framed our response to that both in our memorandum submitted at the time and in our brief that it cannot possibly be.

Justice Abe Fortas: Do you challenge the -- do you contest the point that that issue is before us or do you -- is it your position that that issue is not properly before us?

Mr. McIlwaine: Well, of course, I take the position, Your Honor, that the issue is not properly before you because it was not raised as an issue in this case and was not passed upon by the Trial Court.

And so, that issue is one injected at this, the ultimate level of appellate review, by the Solicitor General.

Of course, it is before the Court in the sense that the Court invited the Solicitor General to express his views, and he has.

And, we do not object to the -- to filing a response to it or to stating our position.

The only thing we objected to is if --

Justice Abe Fortas: So, you don't raise the jurisdictional question.

Mr. McIlwaine: No, sir.

What we do object to this, and on this we wish to be perfectly clear, we do object to the Solicitor General trying to turn this case which was a straight case to involving a question of whether or not a person could vote by means of a sticker or paster into a case in which a complaint had been filed alleging that election officials had engaged in discriminatory practices and proposed to continue in those practices unless an injunction was issued under the Voting Rights Act of 1965 requiring them to register illiterates or to vote or to otherwise give up practices which it obtained prior to the enactment of the Voting Rights Act of 1965.

None of those practices have ever obtained in Virginia.

Virginia has never taken the position that race as an irrelevance to a citizen's right to vote.

We took the position for years that race had a great deal to do with a right of a person to attend a school or to marry.

Those issues had been litigated and decided by this Court, but Virginia has never taken the position.

Justice Abe Fortas: Yes, but how --

Mr. McIlwaine: Nor, race has any relation to that and we do not -- we object most extraneously to any attempt to remand this case to the District Court to enable the plaintiffs to make a new case of it at the district level.

Justice Abe Fortas: Well, however that may be, the Solicitor General suggests to this Court that the bulletin issued by the Board of Elections constitutes a practice or procedure with respect to voting different from that enforced or effect on November 1, 1964.

Those were the words of the Civil Rights Act and, therefore, the solicitor urges that this could not be used, that that Director with the Election Board could not be used without first being submitted to the Attorney General of the United States District Court for the District of Columbia.

Mr. McIlwaine: Yes.

Justice Abe Fortas: So that it may be that we have to consider the point of law that he raises one way or another, that is to say whether this is or is not, in practice or procedure with respect to voting, different from that enforced on November 1, 1964.

And, if it is, perhaps we have to consider whether its further use should be enjoined pending the clearances provided by the Voting Rights Act of 1965.

Mr. McIlwaine: Well, if it -- of course, the Solicitor General does make that assertion, Mr. Justice Fortas, and, of course, the Court can consider it.

It is not a part of the record brought up on this appeal.

It is not a question raised by the jurisdictional statement.

It is a question inserted by the Solicitor General in this Court.

Now, envisioning the possibility that the Court would consider the argument, we have stated why we feel that it cannot possibly be correct that the bulletins issued in this case were a practice or procedure within the meaning of Section 5 (a) and, it is so obvious to us that it cannot be, that we do not see how there can be two sides of the question.

If it was a practice or procedure, it would mean that when the Voting Rights Act became effective in Virginia on August the 7, 1965, there was nothing that the Virginia election officials could do about it, except continue to violate it.

This bulletin was issued within a week of the Voting Rights Act becoming effective and it told the Virginia election officials that the Voting Rights Act was then enforced in Virginia and, despite the provisions of Virginia law which do not permit illiterates to register, you are to begin to register them.

Now, under the Solicitor General's argument, we couldn't do that until we had taken that regulation and submitted it to the Attorney General.

Justice Abe Fortas: That's right, yes.

Mr. McIlwaine: Now, suppose we had never written the regulation.

Justice Abe Fortas: It's the way it puts it.

Mr. McIlwaine: Suppose we waited ten months to write it, what is suppose to happen to the Voting Rights Act of 1965 in Virginia in the interim if we cannot enforce a bulletin which says these instructions implement the Voting Rights Act of 1965?

The Voting Rights Act has superseded the provisions in Virginia laws which forbid illiterates to register and forbid them to vote, and you are now required by this prevailing supervening federal law to register illiterates.

We did that even before South Carolina against Katzenbach was filed in this Court and it prevailed, and illiterates were being registered in Virginia and were being voted in Virginia in contravention of Virginia law while South Carolina against Katzenbach was being argued in this Court.

And, as a matter of fact, we issued those bulletins in 1965.

We passed through the general election of 1965 without a murmur.

We continued for another year.

We have still had no difficulty with it, until the question of voting for S.W. Tucker by means of a sticker or paster in the 1966 Congressional Elections arose.

Justice Thurgood Marshall: Mr. McIlwaine, you'll agree that part of the Civil Rights Act of 1965 was vitally concerned with illiterates?

Mr. McIlwaine: Yes, Your Honor.

Justice Thurgood Marshall: Do you agree that the State -- the Commonwealth of Virginia did take action in the form of a memorandum dealing with the question of how illiterates may vote after the Act?

Mr. McIlwaine: Yes, sir.

One, how they may register and, another, how they may vote.

Justice Thurgood Marshall: And you still say that that -- the Attorney General has nothing to do with that?

Mr. McIlwaine: The Attorney General of the United States?

Justice Thurgood Marshall: Yes, sir.

Mr. McIlwaine: I say that they are not a regulation under Section 5 (a) which he is required to approve in advance.

I do not say he has nothing to do with it.

The Attorney General has brought a number of suits.

If he thinks that these are improper regulations, he can bring a suit to establish it.

Justice Thurgood Marshall: Do you say that an action of the Commonwealth of Virginia, one of the states included under the Act, takes action subsequent to the Civil Rights Act involving the right to vote of illiterates or the method of permitting illiterates to vote is not the type of action which should have been submitted to the Attorney General of the United States?

Mr. McIlwaine: That's correct.

That is our position, and we state that the propositions under the facts of this case that if that is so, then there were a number of the illiterates voted at the 1965 election who would not have been if we had been required to submit that matter to the Attorney General and wait for 60 days for him to express his --

Justice Thurgood Marshall: But that's not before us, is it?

Mr. McIlwaine: I beg your pardon?

Justice Thurgood Marshall: That's not before us?

Mr. McIlwaine: The whole question is not before you, Your Honor.

Justice Byron R. White: So, if the Virginia had put out a regulation that illiterates may hereafter vote and they may vote by a sticker but no other way, you would say that's implementing the Voting Rights Act and would not need to have been submitted to the Attorney General.

Mr. McIlwaine: No, sir.

I submit that if that is put out, of course, I submit that, at any time after the passage of the Voting Rights Act, the legislature should amend its election laws.

They are, under the Voting Rights Act, superficially at least required to submit them to the Attorney General and, as the Attorney Gen -- Solicitor General admits, a number of them are and they are permitted to be enforced even though they have not been officially avowed or disavowed by the Attorney General.

But, I am submitting to Your Honors that these instructions which were issued immediately after the Act became effective, implementing the Act were not such instructions as were required to be submitted to Solicitor General.

The -- otherwise, it would mean that the Solicitor General was empowered to suspend the operation of the Voting Rights Act for a period of 60 days or that the election officials were empowered to do it simply by not submitting anything to the Solicitor General and say, “we're sorry, we can't help you.

When a process of getting together a regulation for the registration of illiterates and the voting of the illiterates.

When we get it together, there's still nothing we can do.

We've got to submit it to the Solicitor -- to the Attorney General.

After that, we've got to wait 60 days and, if election comes up in that time and we haven't heard from him, you won't be able to vote because we can't do it.”

Justice Byron R. White: I suppose the only alternative to that would be that somebody should have authority meanwhile to prescribe some way for illiterates to vote.

Mr. McIlwaine: Somebody should have the authority to obey the federal -- the Voting Rights Act of 1965.

That's the way we viewed it in Virginia, if Your Honor please.

That's why we put out the regulations.

Justice Byron R. White: I suppose any District Court might be able to do better than these authorities.

Mr. McIlwaine: Well, they, so far as Section 5 (a) of course, if that's kind of a regulation, it's got to come to the District Court of the District of Columbia.

Justice Byron R. White: Well, I know, but pending that.

Mr. McIlwaine: I don't understand that any other District Court is open for that question of the validity of a regulation if it is enforced --

Justice Byron R. White: You mean, Mr. McIlwaine, that if it's something that must be submitted to the Attorney General, then there's nothing any Court can do meanwhile to permit illiterates to vote.

Mr. McIlwaine: Unless they could, of course, get immediate action in the United States District Court for the Dis --

Justice Byron R. White: I know, I'm assum --

Mr. McIlwaine: District of Columbia.

Justice Byron R. White: In the District of Columbia.

Mr. McIlwaine: Yes, sir.

Justice Byron R. White: Isn't the 60-das submission a prerequisite to the lawsuit or are they alternatives?

Mr. McIlwaine: No, I think it's alternatives.

Justice Byron R. White: Alternatives?

Mr. McIlwaine: Yes, and of course the Solicitor General could approve or he could wait 60 days.

The law reads that if you do not -- if there is no objection filed by the Solicitor General or the Attorney General within 60 days, then it may be put into effect.

Now, there had been number of cases, gentlemen, in which this issue has been raised in Louisiana, in Georgia, in Alabama, and in Mississippi.

In each of those cases, the relief granted by the District Court sitting in those cases, so far as illiterates are concerned, has been to require the local election officials to assist the illiterates, and specific provision has been made.

None of those cases permit anyone other than an election official to assist the illiterate in casting his vote even though, in those states, the physically handicapped or the blind may be helped by a member of their family or a person of their choice.

In the cases which we have catalogued in our brief, United States against Mississippi, Morris against Fortson, United States against Executive Committee, and United States against Louisiana, the relief granted by Federal District Courts under the Voting Rights Act of 1965 is limited to permitting only election officials to aid the illiterate who had been enfranchised by the Voting Rights Act of 1965.

Specifically, in United States against Louisiana, that was true, and the Court added that nothing contained in this order shall affect any of the state provision relating to the casting of votes by the physically handicapped or the blind.

Now, at that time, the physically handicapped and the blind were not permitted to be aided by election officials but could take a friend of their choice if their blind or, if they were otherwise physically handicapped, a member of their family.

Yet, when the decree was entered in that case, assistance to illiterate voters was limited by the Court solely to election officials aiding the voters.

And, that is true in each of the four cases which are mentioned in the Solicitor General's memorandum and which we have analyzed in our brief.

Now, we cannot believe that the Attorney General of Virginia is required to outdo Judge Wisdom, Judge Christenberry, Judge Bell or the judges of the Fifth Circuit and go further and say, and what's more in Virginia you may cast a vote if you are illiterate by means of a sticker or paster.

Justice Abe Fortas: But, Mr. McIlwaine --

Mr. McIlwaine: It has never been proved.

Justice Abe Fortas: Mr. McIlwaine, maybe that question is not before us.

Maybe we've got two possibilities before us.

One is to direct their selves to the constitutionality of the requirement that the vote be cast in the voter's own handwriting.

Or two, that we have to consider whether the Voting Rights Act requires that this new plan, this new arrangement, be presented to the Attorney General.

But -- but, I -- it seems to me, it'd be quite arguable that we cannot now reach the question of the legality of that alternative method if we decide that the method should have been presented to the Attorney General in the first instance.

Mr. McIlwaine: Well, if the Court decides that that alternative is the problem, it would of course then, I assume, delay consideration of the other questions until the matter had been -- and perhaps the Court would remand it to the District Court and with instructions to --

Justice Abe Fortas: Well, how if we didn't?

I should think we would have to delay it, though, don't you agree?

Mr. McIlwaine: Yes, Your Honor, but you would not delay reaching the question of whether or not Virginia's requirement that the voter vote in his own handwriting is constitutional because, of course, that is not a requirement any longer.

You don't reach the requirement because it isn't there.

Nobody is required to insert a write-in vote in his own handwriting if he is physically or educationally handicapped.

That is the very statute that the Attorney General said had been superseded and could no longer be enforced.

So that, you will never reach that question, unless of course it is to be fabricated because this case was one in which the plaintiffs came in and said, in effect, “your statute requiring a write-in vote to be cast in the voter's handwriting has been superseded.”

And, our response was “you're quite right, it has, and we said so over a year ago in a bulletin.”

Now --

Justice Thurgood Marshall: Mr. McIlwaine.

Mr. McIlwaine: Where is the case of controversy?

Justice Thurgood Marshall: Has the question ever come up about the status before in Virginia?

You mentioned the other states and you've got in your brief where it's come up.

Mr. McIlwaine: Yes, Your Honor.

Justice Thurgood Marshall: Has the validity ever been brought up in Virginia at all?

Mr. McIlwaine: The validity of what?

Justice Thurgood Marshall: Stickers.

Mr. McIlwaine: Stickers?

No, sir.

Except in the opinion of the Attorney General.

Virginia statutes require ballots which are printed.

If people want to mark their ballots, mark them in a certain way, that's mandatory.

Assistance must be given in a certain way.

That's the only provision made for assistance.

Justice Byron R. White: Sticker voting is not permitted?

Mr. McIlwaine: Sticker voting is not permitted not because there is a statute that says that it's not permitted, but because the statute prescribed a method by which ballots shall be marked and assistance should be given --

Justice William J. Brennan: Well, tell me, Mr. McIlwaine, what do you think is before us for decision in this case, not what the plain -- what the appellant urges or what the Solicitor General has suggested, but what do you think is before us for decision?

Mr. McIlwaine: The only thing that I think can possibly be before Your Honors for decision is whether or not a Fourteenth Amendment to the Constitution of the United States per se or the Voting Rights Act of 1965 guarantees anyone the right to vote by means of a sticker or paster in violation of the state law to the contrary.

That's the only thing I think --

Justice William J. Brennan: Or you haven't quite phrased, or have you, that -- is that the way we're going to read the question as you submitted it?

Mr. McIlwaine: I -- yes.

Justice William J. Brennan: You have it as the section as implemented by the regulations violated the Fourteenth Amendment or the Voting Rights Act.

Mr. McIlwaine: Yes, sir, because that, as I say as implemented by the regulation, the illiterate is now granted the same right to assistance as the physically handicapped and, therefore, you have to read the statute as implemented by the regulations.

Justice William J. Brennan: But, I gather, your thought that the question only of use of stickers be --

Mr. McIlwaine: That is correct.

Justice William J. Brennan: Being before us, that isn't necessarily to only in the case of illiterates --

Mr. McIlwaine: Well, it's --

Justice William J. Brennan: It's taking my view by some --

Mr. McIlwaine: It's only -- only in illiterates because that's the only class represented here, Your Honor.

The physically handicapped are not even in here, nor any racial classifications in here, only the illiterates, as a class, is the only class that is here.

Justice Byron R. White: So, but the question -- I take it, you say that it's the same question if you put it this way, that the question is whether or not it's unconstitutional for Virginia to permit illiterates to vote with the help of election officials.

Mr. McIlwaine: Only, yes, or without the means of stickers or pasters because that, you see, is the operative factor of this case.

Justice Byron R. White: You think they're the same question.

Mr. McIlwaine: The action which caused this case to arise, Mr. Justice White --

Justice Byron R. White: Was turning the opposition before you --

Mr. McIlwaine: Was the fact that these votes were cast in this manner and were not counted.

Justice Byron R. White: I understand.

Mr. McIlwaine: And, the action that's challenged here is whether or not that failure of the election officials to count these votes cast by means of stickers or pasters violates some rights secured to these plaintiffs by the Equal Protection Clause or the Voting Rights Act.

There's nothing suggested that anybody else is permitted to vote by means of stickers or pasters.

They're not.

There's no question of discrimination here in that respect at all.

I would simply point out there is -- that there is no hesitancy on the part of Virginia so far as the persons who may render assistance are concerned, with respect to the individual plaintiffs in this case, and the most recent publication of the State Board of Elections containing the instructions for the coming November 5 election, have again been broadened, since this case, to permit the illiterate to be classified with the blind and either request in assistance of a judge or election or to take in a person of his own choosing.

Until this case got to this Court, we didn't know that there was some issue of the power structure or some racial overtone to the case which was certainly not clear in the pleadings and certainly not clear in the Court's opinion, but the most recent regulations promulgated, published by the State Board of Elections, have been broadened to permit the illiterate to be assisted by either a judge of election or a person of his choice.

Justice Potter Stewart: Of his own family -- is that new regulation in --

Mr. McIlwaine: That is new regulation.

Justice Potter Stewart: Have you submitted that Mr. --

Mr. McIlwaine: No, it was just published last week, Your Honor.

I have copies which I can make and hand it to the clerk.

It is on page 8 of the --

Chief Justice Earl Warren: Would you send it to us?

Mr. McIlwaine: Yes, I'll be happy to, Mr. Chief Justice.

My time is up, I think.

Chief Justice Earl Warren: Mr. Amaker.

Rebuttal of Norman C. Amaker

Mr. Amaker: With my few remaining minutes, the only response to this most recent revelation is that the bulletin -- the change in the bulletin is one which, obviously, was a time to anticipate, apparently, the presentation of the case here and there's nothing which, apparently, bars Virginia from changing the statute or changing the bulletin as it -- to its form or way.

The election bulletin is, after all, only a regulation by the election officials.

There is just one small misstatement of fact that I'd like to call the Court's attention to, and that is that, in one of the cases cited by Mr. McIlwaine in which the District Court to require that assistance be given to illiterates, Morris v. Fortson, it was clear that the assistance could be given by persons other than state election officials.

The point with respect to the memorandum by the Solicitor General raising the Section 5 question seems to me to be resolved in this fashion, that assuming the regulation had been submitted to the Attorney General and the Attorney General had approved it, we would have this case.

Assuming that he had rejected the memorandum, you would have a situation where, as everyone agrees, Section 24-252 was suspended.

And therefore, you would have precisely the same questions that are presented on this record.

That is, in light of that fact situation, whether the right to a secret ballot could be preserved by some means and whether the means actually adopted in this case was a reasonable means to achieve that end.

Print this transcript Transcript: 

Discussion with the Clerk

Chief Justice Earl Warren: Numbers 25, 26, and 36, J.C.Fairley, et al. versus Joe T. Patterson, et al.

Mr. Clerk, this isn't listed very well.

You'll have to be satisfied with what I've given.

We'll -- who is to address the Court first?

Clerk: Mr. Derfner.

Chief Justice Earl Warren: I beg your pardon?

Clerk: Mr. Derfner.

Chief Justice Earl Warren: Mr. Derfner, you may proceed with your argument.

Argument of Armand Derfner

Mr. Derfner: May it please the Court.

The question in these three consolidated cases from the Southern District of Mississippi is how much room Congress intended to leave when it passed the Voting Rights Act of 1965 to allow the southern states covered by the Voting Rights Act to continue evading the guarantees of the Fifteenth Amendment.

The answer, we believe, is found in the provision of that Act which is involved in this case, Section 5 in which Congress, after having, in Section 4, outlawed any tests or devices when it was aiming primarily at that time literacy tests, went further and provided that no state covered by the Act might enact or seek to administer any voting qualification or prerequisite to voting where standard practice or procedure with respect to voting different from that in effect in 1964 -- November 1964 without seeking prior approval from either the Attorney General of the United States or getting a declaratory judgment from the District of Columbia -- from the United States District Court for the District of Columbia establishing that that new statute or regulation did not have a discriminatory purpose or effect.

The three cases here, Number 25, Fairley versus Patterson, 26, Bunton versus Patterson, and 36, Whitley versus Williams, all involve statutes which the State of Mississippi passed in 1966 at its first legislative session after the passage of the Voting Rights Act which, we claim, have the purpose and effect of discriminating and voting by reason of race and which are covered -- which are voting laws within the meaning of Section 5 and which -- as to which, there is no dispute that these statutes were not submitted to the Attorney General or for declaratory judgment.

In Number 25, Fairley versus Patterson, the legislature allowed a shift in the manner of electing -- allowed a county to adopt to shift its manner of electing the Board of Supervisors with the chief executive officers of the county from beat or district elections to at large elections.

Thus, allowing a county that might have one or more Negro majority beats to elect all White supervisors if it were a White-majority County as a whole.

In Number 26, Bunton, the legislature changed the office of county superintendent of education which have previously been elective to appointive post, and did so with respect to 11 counties of which 9 had Negro majorities.

Mr. Lichtman will argue Number 25 and Number 26.

In Number 36, Whitley versus Williams, the legislature adopted an amendment to Section 3260 which provides the manner by which independent candidates may gain -- may get on the ballot and, in effect, set up an obstacle course that was designed and had the effect of forcing independent candidates, except at great trouble and effort, to go into the democratic primary or a party primary and to avoid seeking to run as independents.

The background of 19 --

Justice Abe Fortas: Mr. Derfner, would you mind speaking a little bit closer?

Mr. Derfner: I'm sorry, Justice Fortas.

Number 36, Whitley versus Williams, arose in 1966.

The statute involved an amendment to Section 3260, was passed in June of 1966 after Reverent Whitley and one other person had run in the democratic primary, Reverent Whitley having run for the Office of the United States Senator, having lost in the primary, and then indicating that he was interested in running in the general election.

At that point, the amendment was passed and it had this effect.

It multiplied the Number of signatures that a person must gain -- must get in order to gain a place in the ballot as an independent.

In the case of Reverent Whitley, the Number of signatures was multiplied by -- it was changed from 1,000 to 10,000 since it was a statewide office.

It required these signatures --

Justice William O. Douglas: How many registered voters are there in that state?

Mr. Derfner: In Mississippi, at that time, there were probably in the neighborhood of 400,000 or 500,000 registered voters.

The second thing it did was to require that these signatures be submitted at a much earlier date than formerly.

The former practice -- former statute, 3260, had provided that the required signatures be submitted 40 days before the general election, in practical effect, the end of September.

The new regulation -- the new statute required that the signatures be submitted at the same time as one would qualify for running in the party primary.

Now, the statutes governing running in party primaries require that 60 days before the primary a candidate submit his intent -- notice of his intention to run and a filing fee of a small amount to the Executive Committee -- Executive Secretary of his party which means that, under the new statute, whereas someone wanting to run in a party primary had to submit by some date in April, say, $100 or $200 plus a notice of intention to run.

Reverent Whitley or whoever was govern -- whoever wished to run as an independent had to submit petitions with 10,000 or some-lesser Number of signatures, depending on what office was involved.

The third and, in some ways, the most significant effect was to impose a new requirement that one who had voted in a party primary could not, thereafter, run as an independent.

Finally, the new stat --

Justice Potter Stewart: Anyone who's ever voted in a pri -- party primary?

Mr. Derfner: No, I think the statute means that one who has voted in the primary that year for --

Justice Potter Stewart: The last proceeding --

Mr. Derfner: The primary --

Justice Potter Stewart: Or the primary --

Mr. Derfner: The primary for which -- for the same office for which he is running.

Justice Potter Stewart: For this election.

Mr. Derfner: That's right.

Chief Justice Earl Warren: Is that an uncommon provision in -- throughout the states?

Mr. Derfner: I'm not familiar with that, Mr. Chief Justice, but I do know that that was not the provision in Mississippi before and there had been a Number of instances of people being unsuccessful in primaries and running in general elections.

There's a case called Bowen versus Williams which was cited in the brief, in which precisely that happened.

And, the Supreme Court of Mississippi held that there was no impediment to that being done.

Chief Justice Earl Warren: I suppose that was under existing law.

Mr. Derfner: That's right.

There is a Section 3129 in the Mississippi Code which imposes a pledge of loyalty to anyon -- on anyone voting in a party primary, but that's been held not to be enforceable in connection with his running as an independent candidate.

That was the case that I was referring to.

Justice Byron R. White: Now, Mr. Derfner, what is -- the prohibition is against running as an independent, if what?

Mr. Derfner: If you have voted --

Justice Byron R. White: If you have voted in the primary?

Mr. Derfner: That's right.

Justice Byron R. White: Not if you ran in the primary, but --

Mr. Derfner: There is no prohibition in the statute against running as an independent if you have merely run but not voted in the primary.

Nonetheless, one of the record shows that at least one of the people who was kept off the ballot in 1967 was kept off because he had run in the primary, though not voted.

We d -- that does not appear to be, however, what the statute says.

Chief Justice Earl Warren: Do you attack both the merits of the situation as well as the fact that they should've gone to the Attorney General, or do you just say they should've gone to the Attorney General?

Mr. Derfner: No, we believe, Your Honor, and in fact we -- I don't think we'd be here if we did not believe that this was a statute that violates the Fifteenth Amendment of the United States.

We believe that --

Chief Justice Earl Warren: Is that before us?

Mr. Derfner: No, Your Honor.

All that is before you is whether this is a law with -- a law that imposes a voting prerequisite or qualification or standard practice of procedure with respect to voting.

If you decide that it is, then the statute cannot, could not have been, and cannot be put into effect until the federal clearance either through the Attorney General --

Chief Justice Earl Warren: Is that the sole issue in the case?

Mr. Derfner: That is the sole issue.

Justice Thurgood Marshall: You did originally relied on the Fifteenth Amendment also.

Mr. Derfner: The Fifteenth Amendment was in our pleading.

Justice Thurgood Marshall: Why did you take it out?

Mr. Derfner: We took it out, Justice Marshall, because we -- in 1967 when this case came up for the second time, the case came up in September, we did not believe we had enough time at that point to put on a case with respect to the Fourteenth and Fifteenth Amendments.

And so, at that time, though the Fourteenth and Fifteenth Amendment claims remained in the case, and they do remain in the case, now, we entered a stipulation with the appellees, with the Attorney General, that the only issue before the District Court at that time was the issue of Section 5.

This means, by the way, that we would maintain that the constitutional issues are still in the case that Section 2281 did and does apply and that, wholly apart from any question of Section 5, we were and are entitled to a three-judge Court and, therefore, that this Court would have jurisdiction by direct appeal.

We did not mean, in any way, to take the Fourteenth and Fifteenth Amendment issues out of the case, and we believe, in fact, that we could prove that if we were put to it.

Justice Thurgood Marshall: But you actually did.

Mr. Derfner: Pardon me, Your Honor?

Justice Thurgood Marshall: What did the stipulation say?

Mr. Derfner: The stipulation, which is in the record at -- it's an appendix to the opinion of the three-judge Court appearing on page 39 of the record here, paragraph 5, that the only issue before the Court at this time is whether or not House Bill 68, amended Section 3260, is an attempt by the State of Mississippi to enact or seek to enact to administer any voting law within the meaning of Section 5.

There's nothing in the stipulation and nothing else anywhere in the case that indicates that the constitutional issues are no longer in the case.

The final requirement of the new Section 3260 was that every vote -- every signature on the petition had to be in the petitioner's own hand -- own handwriting.

And, while it's not clear -- while this specific provision has not been at issue or been the specific issue involved in any of the cases in the record and it's not clear just how far this goes, we think it is open to the interpretation, and a fatal interpretation, that this require -- that this would prohibit illiterates from signing petitions on behalf of independent candidates.

After the statute was passed, Reverent Whitley and two others who were kept off the ballot submitted petitions to run as independent candidates in the fall of 1966.

They were ruled off the ballot not because they had not complied in time or because they had voted in the primary as to both of which this would've been an expos facto law, but because they had not submitted sufficient signatures.

At that point, in the fall of 1966, we filed this suit on -- as a class action on behalf of Reverent Whitley and the two others in their capacity, both as voters and as candidates, and the three-judge Court at that time, without going into any of the statutory or constitutional issues, as an exercise of its equity, jurisdiction, and discretion ruled that these three candidates should be placed on the ballot.

In 1967, the situation arose again, and at that point, as the record shows, there were at least 16 candidates ranging from people who were running for Justice of the Peace in various counties, all the way to Mrs. Fannie Lou Hamer who sought to run for state senate from Sunflower County who had been ruled off the ballot.

I should mention that the 1967 elections were the statewide elections in which virtually all state offices were being chosen.

This was the first time in modern history that any substantial Number of Negro candidates had run or sought to run.

It was also the first time in modern history that any -- that, with the exception of a single Negro community in Mississippi, that any Negro candidates have been elected.

These 16 people or more were kept off the ballot for various reasons, although they had complied or would've complied with the old provisions of Section 3260.

At that time, we brought the suit on again and, this time, the three-judge Court ruled against us.

And, it was from that decision which held essentially that Section 3260 dealt only with elections or with candidates but not with voting, that this appeal was taken.

The point of this appeal, we submit, is very much like the point in Williams versus Roads decided by this Court yesterday in which the Court said dealt -- dealing with the right of the American Independent Party to be on the ballot, spoke of the Ohio provision as a burden on the right of qualified voters regardless of their political persuasion to cast their votes effectively.

I think it's significant that Section 3260 is the first -- one of the first major attempts by the State of Mississippi to deal in any significant way with the problem of general elections.

Mississippi, is perhaps the most or certainly one of the most confirmed of the one-party states of this nation, has always paid a great deal of attention to regulation of primary elections than to regulation of general elections.

The two outstanding examples of that are the Corrupt Practices Act which, in Mississippi, applies only to primary elections and not to general elections and the requirement of the runoff which, again, applies only to primary elections and not to general elections.

The tradition in Mississippi has always been that whoever wins the primary is essentially the winner of the general election.

In most cases or many cases in recent history, there has not been any opposition at the general elections.

At the same time, with the passage of the Voting Rights Act of 1965, a new factor came into Mississippi politics and this was the Negro voter.Prior to 1965, various figures in the reports of the United States Civil Rights Commission, other figures indicated that something like 7% of the eligible Negro voters in Mississippi were registered to vote.

After the --

Justice John M. Harlan: Am I wrong in thinking that the precise issue we got before us is to the scope of the provision of the statute which refers to qualifications and prerequisites to voting or standards and practices and procedure?

Mr. Derfner: That's right, Your Honor.

Justice John M. Harlan: It's a question of the interpretation of the coverage of that provision.

Mr. Derfner: Yes, Justice Harlan.

Justice John M. Harlan: Your argument, so far, seems to go to the merits of this statute.

Mr. Derfner: No, because we --

Justice John M. Harlan: What do you contend the statute covers?

Mr. Derfner: We believe that Section 5 was intended to cover to be every bit as broad as the Fifteenth Amendment itself, that when Congress passed the Voting Rights of -- Act of 1965 they knew full well that this was -- that they had been relatively unsuccessful in guaranteeing the provisions of the Fifteenth Amendment before that.

They had tried in 1957, in 1960, and in 1964.

We believe that what Congress sought to do in 1965 was to ensure that they would not have to pass a Voting Rights Act of 1966 because they knew that on each occasion, when they had passed legislation before that, the states that they were aiming at had then come up with another new provision that had not been covered by the Act.

And so, we think that Section 5 was passed very broadly in order to cover everything possible that could be covered the Fifteenth Amendment.

Justice John M. Harlan: Would it encompass things in your view that would not be unconstitutional in the Fifteenth Amendment?

Mr. Derfner: Section -- well, Section 5 would -- the final determination of the United States District Court for the District of Columbia would cover only things that were -- no, let me put it this way.

With the exception of the placing of the burden of proof, I believe that Section 5 would be the same as the -- would cover only or would prohibit after clearance only things that were in violation of the Fifteenth Amendment.

In other words --

Justice Byron R. White: A good faith literacy test itself would not be, in it of itself, violate the Fifteenth Amendment.

Mr. Derfner: Right, a good faith --

Justice Byron R. White: And held --

Mr. Derfner: A good faith --

Justice Byron R. White: And yet, obviously, would come under Section 5, wouldn't it?

Mr. Derfner: No.

Well, it would come under Section 5 in the sense that it would have to be cleared --

Justice Byron R. White: Yes.

Mr. Derfner: Under provisions of Section 5.

I took Justice Harlan's question to indicate what would be clear to what would not be clear under Section 5, and a good faith literacy test would be cleared since it would not --

Justice Byron R. White: I addressed you as to what specifically is the sweep of the Act.

A fine question has to go to a District of Columbia Court.

Mr. Derfner: I think the kind of question that has to go to the District of Columbia Court is any question relating to voting, whether it discriminates or not.

Justice Byron R. White: And whether it violates the constitution.

Mr. Derfner: That's right.

Justice Byron R. White: It would be reapportionment of the provision.

Mr. Derfner: Yes, Justice White.

We think that reapportionment is one of the most significant examples of this.

Any situation in which the state does anything which has the potential of depriving somebody of the right to vote on base of race or abridging --

Justice Byron R. White: All reapportionment cases -- the constitutionality of all the reapportionment statutes must be submitted, is that so?

Mr. Derfner: Not all reapportionment cases, Justice White.

I think Mr. Lichtman will be dealing in somewhat more detail with the reapportionment question.

Justice Byron R. White: Which one would?

Mr. Derfner: Only reapportionment cases from the covered states --

Justice Byron R. White: Yes.

Mr. Derfner: Would be going through.

Justice Byron R. White: Alright, all --

Mr. Derfner: All those rea --

Justice Byron R. White: All the reapportionment cases from the covered states would have the constitutionality passed upon by District of Columbia Court.

Mr. Derfner: That's true.

Every reapportionment case would have to be passed on not -- but not necessarily by the District of Columbia Court.

In most cases, it could be done, and I believe it has been done --

Justice Byron R. White: By the Attorney General.

Mr. Derfner: By the Attorney General.

And, I think the Attorney General's information indicates that there had been a great Number of submissions of reapportionment plans and that all of these have been approved.

So that, in most -- and we think it's quite proper that where you have a reapportionment plan, you have the best -- you have, in a sense, the most convenient opportunity for a state to discriminate with re -- in voting with respect by -- on the basis of race in a way that seems innocent.

And, we believe that where that is in fact innocent, that there will be no trouble, and where it is not in fact innocent, that is perfectly proper to have the state be required to pass muster by submitting it to the Attorney General and, if he disapproves, to decla -- to seeking declaratory judgment in the District of Columbia.

Justice Byron R. White: Now, where does -- where -- what words in the Act do you think cover your case?

Mr. Derfner: My own case, Number 36, will be covered by standard practice or procedure with respect to voting.

We think that --

Justice Byron R. White: With respect to voting?

Mr. Derfner: Yes, we think that, as in Williams versus Roads, the question of who gets on the ballot is so closely related to the question of who the voter can vote for and how he can make his vote effective, that it is a question of standard practice or procedure with respect to voting.

Justice John M. Harlan: Why doesn't it cover quality of cases too?

Mr. Derfner: Pardon me, Justice Harlan?

Justice John M. Harlan: Why doesn't it cover the quality of cases too with respect to voting?

Mr. Derfner: I believe it does, Justice Harlan.

That if, for example --

Justice John M. Harlan: A man who runs in the ballot no longer votes.

Justice Byron R. White: That's a little hard.

Mr. Derfner: I think it would cover that, Justice Harlan.

That, again, is a sort of question that should be submitted to the Attorney General.

I think, quite possibly in that situation, if they were not a racial cast to it, that that's the sort of thing that the Attorney General would approve.

Justice John M. Harlan: Isn't that right?

Chief Justice Earl Warren: It could be true.

Mr. Derfner: No, I think a statute like that should be submitted, that it is covered by Section 5.

You can think of the example, suppose -- take the Grandfather Clause case for this Court when -- and its progeny.

Suppose the statute said not simply that one who is the -- was eligible to vote in 1867 was the ancestor of one who was eligible to vote may vote without registering, one who is not may not.

Suppose the statute said one who was eligible to vote in 1867 may run for office as an independent or may run for office, if he was not so eligible to vote or his ancestor was not then he may not run for office.

We think that's precisely the sort of thing that is covered by Section 5.

I might say in this connection that the appellees have talked about the language of Section 5 as being somewhat narrower.

They've talked about the use of the word "comply" in the second sentence of Section 5, and they've said "unless and until the clearance is obtained, no person shall be denied the right to vote for failure to comply."

We think, there, that the words "comply" were not intended to be and should not be read as limiting the terms "voting standard, practice, procedure, prerequisite, or qualification."

The word comply,taken in its most logical sense there, would apply to the qualification or prerequisite.

It would not be an Act limiting phrase with respect to the phrases "standard practice or procedure" which were inserted in the Act after its introduction.

For example, we can think of examples that I think would, even more clearly than these cases, be covered by this -- by Section 5 as to which the word "comply" would not be an appropriate word, and these have to do, for example, with various actions of the election officials.

For example, chan -- a law changing the counting of the ballots from a public counting to a secret counting, or a law changing the polling places from public buildings or public places to private places, thus, allowing polling places to be held in -- on plantations or stores or what have you or, for example, a law that abolish the use of poll watchers.

All these, I believe, it would clearly come within Section 5 and these do not fit as clearly within the use of the word "comply."

I think those are good examples showing why the word "comply" should not be read as limiting the statute.

I think the coverage of Section 5 is the fact that all these statutes may have to be submitted for approval is not one that should be regarded as a reason to narrow the scope of Section 5.

Certainly, it's strong medicine but Congress knew when it passed Section 5 that it was dealing with a virulent disease and the very fact that great Numbers of submissions have come to the Attorney General from -- in almost every case from states other than Mississippi, I think, indicates that Congress meant for the easy statutes, the obvious statutes, the statues that were constitutional to sail through, and they have sailed through, but Congress meant to put a block on the states from monkeying around with the Fifteenth Amendment from doing the things that they have been doing that previous statutes had failed to curve, and --

Justice Abe Fortas: Do you know whether Mississippi submitted anything to the Attorney General under the statute?

Mr. Derfner: I think the Attorney General's records indicate, according to my information, that only one matter has ever been submitted from the State of Mississippi and that was not done by the State of Mississippi but by the Board of Supervisors of a Single County.

Chief Justice Earl Warren: Mr. Lichtman.

Argument of Elliott C. Lichtman

Mr. Lichtman: Yes, Justice --

Chief Justice Earl Warren: Mr. Lichtman, you may proceed.

Mr. Lichtman: May it please the Court.

In November 1963, five White persons were elected members of the Boards of Supervisors, the principal governing officials in Adams and Forrest Counties, Mississippi, the counties involved in Fairley versus Patterson, Number 25.

At that time, Negros were almost totally disenfranchised in Mississippi.

In August of 1965, the Voting Rights Act was passed and, by June 1966, it was estimated that 132,000 Negros were registered to vote in Mississippi.

About the same time, the Mississippi legislature amended Section 2870 of the Code and presented those five supervisors -- those five White supervisors in Adams and Forrest Counties with a vehicle or device to continue themselves in office, that is, the legislature gave those supervisors the option or the power to adopt an order switching from a district-by-district election system to an at large system in the county.

Therefore, in Adams County where census figures show that Negros have a majority in beats 2 and 4, in fact, a 2-1 majority in beat 4, and where census figure shows that Whites have a countywide majority, the supervisors who were elected in November of 1963 were given a vehicle by which they could stay in power.

And, in Forrest County, the other county involved in Fairley versus Patterson, where beat 3 was closely divided in 1960 and where Negros now claims a slight voting majority and where Whites have a heavy countywide voting majority, the supervisors who were elected in 1963 also chose in 1966 an at large system.

A close look at this statute, Section 2870 as amended in 1966, shows that a simple majority of the supervisors, three out of five, may order an at large election where it serves their interest.

In other words, suppose a Negro were elected supervisor in one of those two counties.

For the next election, the remaining supervisors, those remaining supervisors could adopt a countywide at large system and ensure the defeat of that Negro supervisor elected prior to the at large system.

To be sure, the statute, if you look carefully at it, contains a referendum pet -- provision, but it's hardly a safeguard here, where we can expect the countywide White majority in that referendum to ratify the decision of the supervisors to go at large.

Mississippi answers "look how malapportioned we were.

Our population -- our districts were very uneven in population terms, and we're only complying with the one man-one vote mandate of the United States Constitution."

First of all, as Justice Harlan indicated earlier, the issue before this Court is not the precise motivation of the supervisors.

That is the question for the Attorney General upon submission or for the District Court for the District of Columbia.

The question for this Court is, given the real possibility that this amendment to Section 2870 is a vehicle or a device to perpetuate the disenfranchisement of Negros, does Section 5 in its broad sweep cover the new law?

Appellants in Number 25 submit that this is exactly what Congress intended.That Congress intended, once and for all, to make the Fifteenth Amendment effective but, to do so, Congress concluded that any new statute relating to the effectiveness of the right to vote, that any new statute such as this, must be scrutinized by the Attorney General before it becomes operative.

In Number 26, the second case, about which I shall speak, the Bunton case, we are dealing with a 1966 amendment for which Mississippi has offered no explanation.

The old law was simply that old -- that all county Superintendents of Education, surely the most important single educational official in the count, the person in charge with carrying out the mandate of this Court and of the constitution to integrate schools, the old law was that this official, the county Superintendent of Education, was elected unless 20% of the voters petitioned for an election on the question of whether or not to make it appointed.

Suddenly, 10 months after the passage of the Voting Rights Act, in August of 1965, 11 of Mississippi's 82 counties were, in effect, told "your county Board of Education shall appoint your superintendent of education," and the record shows that 9 of those 11 counties have Negro majorities.

Justice John M. Harlan: According to the law that went across the Board, in other words, Mississippi had said they were now going to go to an appointed system.

The school superintendent throughout the state will be appointed.

Mr. Lichtman: Our position, Justice Harlan --

Justice John M. Harlan: And, that would've been --

Mr. Lichtman: Our position, Justice Harlan, would be that that, too, should be submitted to the Attorney General of the United States.

I think the chances are excellent that if Mississippi had complied with Section 5 and had submitted that law, the Attorney General would not have objected within 60 days and the law would've gone into effect.

Chief Justice Earl Warren: Is there any population relationship to these 11 counties to the others?

In other words, are they the 11 largest or the 11 smallest or anything of that kind?

Mr. Lichtman: The counties, I believe, are spread throughout the state, but Negros only constitute 43% of the population of all of Mississippi and the c --

Chief Justice Earl Warren: No, that wasn't the question I asked.

Can it be said that the -- that this was done because of the size of the county, the mere size?

Are these 11 -- do these 11 happen to be either the largest county -- 11 counties of the state or the smallest or --

Mr. Lichtman: I think they do not, Chief Justice Warren.

I think the --

Chief Justice Earl Warren: They just take control?

Mr. Lichtman: The only common element is that Negros happen to be in the majority in 9 of 11 of the counties.

Chief Justice Earl Warren: I see.

Justice Byron R. White: Are they in the majority in any other counties?

Mr. Lichtman: They are in the majority in a few others.

They have 43% of the population in the total state.

Justice Byron R. White: Well, is it very relevant in this?

Mr. Lichtman: Well, our point, Mr. Justice White, is that this statute withdrew the right to vote from the electors of those counties.

Our position is that, given the rather strong possibility that there might have been a discriminatory motive, this is just the kind of case Congress wanted -- just the kind of statute Congress wanted submitted to the Attorney General for his scrutiny.

Justice Byron R. White: It wouldn't make any difference what the racial makeup was in terms of the statute.

Mr. Lichtman: I think that's correct, but I think the particular facts are illustrative of what Mississippi is trying to do.

But, technically,Even if the counties were split evenly, Black and White, the new law would still have to be submitted to the Attorney General.

Justice Potter Stewart: Mr. Lichtman, when you answered Mr. Justice Harlan that you thought a statute submitted to the Attorney General would've been approved, now was that answer with relation to the question he put to you namely a statewide statute or are you saying that at this statute?

Mr. Lichtman: I was answering, I thought, his hypothetical question which referred to a statewide statute.

Justice Potter Stewart: But you -- is that your view?

Mr. Lichtman: Well, in this case --

Justice Potter Stewart: Saying it might have happened as to this statute?

Mr. Lichtman: In this case, I would prefer to allow the Assistant Attorney General to answer the question.

My guess is that he will want to scrutinize this very carefully.

I don't know what position he will take on, but the point is Mississippi had --

Justice Potter Stewart: In any event you're not making any submission that this one ought to have clearance from the Attorney General.

Mr. Lichtman: Oh, absolutely not.

Justice Potter Stewart: On the other hand, I don't see why you need to make any submission that this may be violative of the Fifteenth Amendment or may be discriminatory, or anything else.

It seems to me that, as you read Section 5, that any change since -- from the way -- from the status quo of November 1, 1964, no matter how enlightened, no matter how well-motivated, and no matter how trivial is covered by the language of the statute and, from then on, it's up to the Attorney General.

And, if he acts then if people are dissatisfied with his decision, then it's up to the United States District Court for the District of Columbia.

Mr. Lichtman: I think that's correct.

Justice Potter Stewart: Why do you have to submit to us that this may be a discriminatory or an evilly motivated change?

If you're right about the meaning of the -- of Section 5, it could be the most purely motivated, the most progressive, and enlightened or, as I say, the most trivial change in the world, and yet it comes under Section 5.

Mr. Lichtman: I think that's correct, Justice Stewart.

Our point in going into the facts at all is that we know why Congress passed the statute.

The language of Section 5 is very broad.

We're really trying to show that this is the kind of thing Congress had in mind, but I agree with you that the statute could be very enlightened and, nevertheless, Attorney Gen -- the State of Mississippi, one of those half-a-dozen states or so covered by the Act, would have to submit it to the Attorney General.

Justice Byron R. White: You would be making the same argument if Mississippi just revealed this law now, would you?

Mr. Lichtman: That's correct, Justice White.

Justice Hugo L. Black: Suppose, instead of delegating his authority to the Attorney General, he had delegated it to the Chief Justice of the United States or to the Court as a whole.

What would you say about that?

Mr. Lichtman: I think our position would be the same, Mr. Justice Black, I think the Attorney General, however, is particularly equipped since he has a Civil Rights Division to make this type of inquiry, but our position would be the same if the statute had been so-written.

Justice Hugo L. Black: Of Course, Marbury versus Madison held it was this Court who had judicial review, not the Attorney General.

Mr. Lichtman: Of course, the District Court for the District of Columbia, if the Attorney General Objects, will then make the judgment as to whether or not the declaratory judgment should issue and whether or not the new law should go into effect and, of course, Mississippi could appeal from the District Court for the District of Columbia up to this Court.

Justice Hugo L. Black: Suppose instead of the District of Columbia the Act had said the first -- the District Court in Maine.

Mr. Lichtman: Well, Justice Black, I would agree that the point here is that someone is scrutinizing these statutes before they go into effect and it's --

Justice Hugo L. Black: Well, that would be alright, wouldn't it, the District Court in Maine?

Mr. Lichtman: I think so, Your Honor.

As I stated, Mississippi has offered --

Justice Hugo L. Black: I suppose you propose another Section by --

Mr. Lichtman: Excuse me.

Justice Hugo L. Black: Some issue in Maine, all the laws become effective in Maine.

They must be submitted to a District Judge in Mississippi.

Mr. Lichtman: Congress, in its wisdom, could do that, Mr. Justice Black.

Justice Hugo L. Black: It could.

Mr. Lichtman: I believe.

Justice Hugo L. Black: Well, I agree with you.

If it can do this, it can do that.

Mr. Lichtman: Justice White asked Mr. Derfner earlier about reapportionment, and I would like to address myself to that for a few moments.

Appellants in Fairley make no attempt to distinguish our case or to distinguish Section 5 from reapportionment cases.

Our position is that Section 5 was intended to cover any new statute which relates to the effectiveness of the right to vote.

Section 5 was drafted because of the constant attempts by the state, by the Southern States to "out-guest" the Federal Courts, the Justice Department, and the Congress.

Justice John M. Harlan: You agree the statue isn't worded that broadly.

Mr. Lichtman: Well, we are reading --

Justice John M. Harlan: Because what Congress had in mind was reverted as you say so.

Mr. Lichtman: We're reading essentially, Justice Harlan, Section 14 which defines voting with Section 5.

Section 14 defines voting as all action necessary to make a vote effective in an election.

We're reading that language into 5 to justify our broad reading.

Voting cases prior to the passage of the Voting Rights Act of 1965 were very difficult to prove.

They were monumental to try and, let's face it, the old laws were not working.

Negros were not getting enfranchised in the southern states.

A reapportionment case is precisely the same kind of case.

It's difficult to prove and it's monumental to try.

Moreover, because the state can justify its new law as an attempt to comply with the one man-one vote mandate of the constitution.

There is the constant danger that this justification will be only a foci, but the real purpose will be a discriminatory purpose and, therefore, there's a special need to scrutinize those statutes which appear to be reapportionment plans.

Now, I'm sure this Court would be concerned about any potentially disruptive or burdensome effect on reapportionment plans, but we don't think there will be any.

The local District Court and the legislature will create the reapportionment plan just as before.

There will be no change.

The only change is that in those states that are covered by the Act, before the plan goes into effect, it must be submitted to the Attorney General.

Justice William J. Brennan: Are you suggesting that they perpetuate if a District Court in Mississippi directed a reapportionment plan that could not be made effective until it clears the Attorney General or the District of Columbia District Court?

Mr. Lichtman: That is our position, Mr. Justice Brennan.

I think Mr. Pollak, the Assistant Attorney General, will relate to you that South Carolina, among others --

Justice William J. Brennan: I'm not speaking -- I'm speaking not of a reapportionment plan enacted by the Mississippi legislature than the absence of one of a reapportionment plan directed by a Mississippi District Court.

Mr. Lichtman: Well --

Justice William J. Brennan: Even that one, you say, will --

Mr. Lichtman: I think the statute can be read not to cover those types of reapportionment plans.

I don't think this Court need reach that question.

I think the question in this case is merely a statute passed by the legislature.

Justice Hugo L. Black: And that, you say, would have to be submitted to the Attorney General.

Mr. Lichtman: Well, if I had to reach that question, my position would be that before the state makes that new plan effective, it would have to clear it with the Attorney General, but I think this Court can avoid reaching that question.

That's not presented in this case.

Justice Byron R. White: It may not -- the question of Court made plans.

Mr. Lichtman: Exactly.

Justice Byron R. White: But, legislative plans --

Mr. Lichtman: Right.

Justice Byron R. White: You --

Mr. Lichtman: That's presented by this --

Justice Byron R. White: We're necessarily deciding this one.

Mr. Lichtman: I think that's presented by the Fairley case.

Justice Potter Stewart: Legislative or, clearly, any political subdivision.

Mr. Lichtman: Yes, that's correct.

Now, I think Mr. Pollek will say or -- that South Carolina and other states have submitted reapportionment plans and that none have been objected to so far.

Justice Byron R. White: Well, has the District of Columbia Court then got jurisdiction to pass on new apportionment plans in the covered states?

Mr. Lichtman: I would phrase it this way, Mr. Justice White, if --

Justice Byron R. White: You think the jurisdiction of all the other District Courts have been --

Mr. Lichtman: No, I think the local District Court in Mississippi will play the same role that it played before.

It will work out the plan if the legislature is unable to.

Before the new plan goes into effect, it must be submitted to the Attorney General of the United States.

He then has succeeded into --

Justice Byron R. White: Or the District Court.

Mr. Lichtman: Or the District Court, right.

If the Attorney General objects, only in that case --

Justice Byron R. White: Well, why isn't the --

Mr. Lichtman: Does the question go before the District Court of the District of Columbia.

Justice William J. Brennan: Well, let's see though.

If -- let's assume a legislature legislatively adopt a plan of Mississippi, a challenge to it in the Federal District Court in Mississippi ultimately, let's assume, an approval of the plan.

Suppose it's then taken directly here, a three-judge Court --

Mr. Lichtman: With approval, Your Honor, by the Attorney General?

Justice William J. Brennan: No, by the three-judge District Court.

Mr. Lichtman: Excuse me.

Justice William J. Brennan: It comes here and we affirm it.

Now, you say, nevertheless, Mississippi can't make it effective.

Mr. Lichtman: Before --

Justice William J. Brennan: Without going to the Attorney General for his approval and thereafter, if he denied it, getting a declaratory judgment from the District Court of the District of Columbia, then comes to the Court of Appeals, and then back to us?

Mr. Lichtman: Except, Your Honor, the -- I just can't conceive, in a situation like that, of the Attorney General objecting.

Everyone has scrutinized the plan for both Fifteenth Amendment violations, as well as Fourteenth Amendment violations.

Justice Abe Fortas: We don't really have any such case before us, do we?

The Fairley case is not the usual kind of reapportionment case because that was a case in which just a selected Number of counties were involved, isn't that right?

Mr. Lichtman: I think that's right, Mr. Justice Fortas, and --

Justice Abe Fortas: And it was not -- is it stated that that statutory change in the Fairley case was adopted to comply with any requirements of this Court?

Mr. Lichtman: Certainly not.

I'm addressing myself to this issue only because appellees in Fairley claim that that's why they did it.

Justice Abe Fortas: But is there anything in --

Mr. Lichtman: But, that's actually not the question.

Justice Abe Fortas: Is there anything in the legislative history of Mississippi in the adoption of this statutory change that would say that?

Mr. Lichtman: I think the legislative history is silent on the point and Mississippi has --

Justice Abe Fortas: And, here, you have only --

Mr. Lichtman: Has --

Justice Abe Fortas: Here, you have only a few counties, don't you?

Mr. Lichtman: Right.

Justice Abe Fortas: And, aren't there other counties in Mississippi that are divided into districts?

Mr. Lichtman: All coun --

Justice Abe Fortas: For this purpose?

Mr. Lichtman: All counties are divided into districts, yes.

Justice Abe Fortas: And so, only a few of them were affected by this statutory change.

Mr. Lichtman: Well, the statute created the option for all of the counties to do this.

To my knowledge, only a half-dozen or so have done it.

Two of those are involved in this case.

Justice Abe Fortas: It's the state's contention that --

Mr. Lichtman: That there --

Justice Abe Fortas: Giving the county to narrow it -- it's the state's contention anyway, that all the counties the option to adopt this was compelled by decisions of this Court.

Mr. Lichtman: Well, they suggest that, in June of 1966 when they did this, that that was their motivation, and that's why I'm addressing myself to these issues, but they have injected the reapportionment question into the case and I feel that it may trouble the Court and, for that reason, I'm addressing myself to it.

Justice Hugo L. Black: What relief is asked?

Mr. Lichtman: Mr. Justice Black, our relief is based on several cases, principles brought forth in several cases.

We ask that this Court order Mississippi to comply with Section 5.

That this Court --

Justice Hugo L. Black: And to submit to the Attorney General.

Mr. Lichtman: That's correct.

Now, we could also ask --

Justice Hugo L. Black: But then, what?

Mr. Lichtman: Well, the question arises should they set aside the old elections and should they have new elections.

Justice Hugo L. Black: What election was this?

Mr. Lichtman: In November of 1967, in the two counties that are affected in Fairley, they held at large elections.

Justice Hugo L. Black: Now, would they have to waive them until the Attorney General passes on it and then it's attacked at Court?

Mr. Lichtman: Now --

Justice Hugo L. Black: The Court of Appeals, then it comes to us?

By that time, it probably --

Mr. Lichtman: Well, Mr. Justice Black, if the Attorney General does not object within 60 days, I think that's the end of the matter.

Justice Hugo L. Black: What if he did?

Mr. Lichtman: If he does object within 60 days, he will have good reasons for doing so, I am sure, and I think the District Court for the District of Columbia in that case ought to scrutinize it and I think new elections ought to be held as soon as the Attorney General objects.

Justice Hugo L. Black: Well, can the Court of Appeals review the District Court?

Mr. Lichtman: Well, you do get -- if we wait that long, we'll get into the 1971 election.

For that reason --

Justice Hugo L. Black: That's what I thought.

Mr. Lichtman: For that reason, our position is that, Number one, this Court should order Mississippi to comply with Section 5, i.e., s --

Justice Hugo L. Black: How could that be done before the Court rules on it?

Do you mean that the Act authorizes the Attorney General void a statement that is bad to notify the state law?

Mr. Lichtman: Well, the --

Justice Hugo L. Black: Make the judgment.

Mr. Lichtman: The Court has two alternatives, Mr. Justice Black, in my view.

If they --

Justice Hugo L. Black: He can't command a final judgment, can he, that the state law is void?

Mr. Lichtman: But he can render a final judgment that the state law is okay, and that's why --

Justice Hugo L. Black: But suppose he renders and says it's void, is that filed?

Mr. Lichtman: In that event, no, it's not filed.

In that event, Mississippi has two alternatives.

They can cease operating the new law or they can go to the District Court for the District of Columbia to seek to have a new law approved.

Now, if the --

Justice Hugo L. Black: To get them to approve the law as constitutional.

Mr. Lichtman: That's correct, in effect.

Justice Hugo L. Black: As what?

Mr. Lichtman: As --

Justice Hugo L. Black: As constitutional or --

Mr. Lichtman: As not having a discriminatory purpose, which would be that it would be constitutional.

Justice Hugo L. Black: The result being if it's either constitutional or unconstitutional.

Mr. Lichtman: Right.

Justice Thurgood Marshall: What happens if Mississippi passes a law and the Attorney General reads it in the newspaper that the law was passed and he got the US attorney in Jackson to get him a copy of the law?

Could he take any action?

Mr. Lichtman: Certainly.

Justice Thurgood Marshall: He could?

Mr. Lichtman: Certainly.

He --

Justice Thurgood Marshall: What's the magic if Mississippi has to "submit it."

What's the magic in that?

Mr. Lichtman: Well, he could take action under the Voting Rights Act and he could also take action under the Fifteenth Amendment

I thought your question was addressed to the Voting Rights Act.

Under 12 (d), he could compel Mississippi to submit the law to him.

Justice Thurgood Marshall: Well, I mean, what's the magic in submitting it, other than he gets it?

Mr. Lichtman: The magic is that he has an opportunity to object, and if he does object, the burden --

Justice Thurgood Marshall: My case was, he did have a copy of the Bill as it was passed, certified copy.

Mr. Lichtman: Right.

Justice Thurgood Marshall: That gives him everything he needs to start where it does.

Mr. Lichtman: Alright.

Justice Thurgood Marshall: Well, what difference does it make whether he gets it from Airbab or he gets it at the State of Mississippi?

Mr. Lichtman: Well, the difference of course is that the burden is on Mississippi when it goes before this District Court for the District of Columbia.

Mississippi must prove that its purpose was not discriminatory and its effect was not discriminatory.

That's very different.

Justice Thurgood Marshall: Well, then, I misunderstand you.I thought you said the only relief you wanted was that Mississippi should submit a copy of this Bill to the Attorney General.

Mr. Lichtman: Well, that's step one.

If the Attorney General does not object, as far as we're concerned, it's harmless error.

If the Attorney General does object, then we submit this is --

Justice Thurgood Marshall: Well, we don't get any of that.

All you ask us to do is to tell Mississippi "you must submit this to the Attorney General."

Mr. Lichtman: Well, we still have the problem --

Justice Thurgood Marshall: You must give to the Attorney General a copy of the law that he's drawn a brief on.

Mr. Lichtman: But we still have the problem, Mr. Justice Marshall, of what happens to those people who were injured back in November of 1967.

They should have had elections by the -- in Forrest and Adams County.

They should have had elections for the position of County Superintendent of Education.

What happens to those people?

Our position is --

Justice Thurgood Marshall: Well, then, you're asking for more than that we just ruled --

Mr. Lichtman: That's right.

Justice Thurgood Marshall: That this be submitted.

Mr. Lichtman: That's right.

We could --

Justice Thurgood Marshall: Well, not exactly.

What are you asking?

Mr. Lichtman: Alright, logically, we --

Justice Byron R. White: You're not asking us to pass on the validity.

Mr. Lichtman: Of course not, but our position is that the law was not in effect.

It should not have gone into effect in November of 1967.

It will be quite --

Justice William J. Brennan: And, therefore, what?

Do we set aside those elections in 1967?

Mr. Lichtman: Well, we could ask you to do that, but we think that's unrealistic because it would take more than 60 days to hold a new election.

And, during that period of time, Mississippi could submit to the Attorney General.

So, we're not asking you to immediately set this aside because we think that's unrealistic.

We think that you should order them to submit.

If they submit and the Attorney General objects, then new elections must be held.

If the Attorney General does not object, then that's the end of the matter.

Justice Hugo L. Black: Do you mean if the Attorney General objects, we won't let any Court rule on it at all?

They've got to set it down then and have a new election?

Mr. Lichtman: That's correct.

The --

Justice Hugo L. Black: No Court ever holds this.

It's --

Mr. Lichtman: Well, this Court, in South Carolina versus Katzenbach, interpreted Section 5 as meaning that when a new law goes into effect, it is automatically suspended.

It does not go into effect.

Mississippi should not have had elections in November 1967 under these new laws because it failed to clear these new laws.

Justice Hugo L. Black: The result of that is that the Attorney General of the United States, who is not a judge, who is not in Court, can object to any state law, it's election law, and he can immediately require that state to have another election, is that right?

Mr. Lichtman: That' right.

Justice Hugo L. Black: That's what I understood you to say.

Mr. Lichtman: Mr. Justice Black, Congress was faced with an extraordinary problem.

Justice Hugo L. Black: I'm not talking about extraordinary --

Mr. Lichtman: And, that's what it did.

Justice Hugo L. Black: Any extraordinary thing.

The Constitution is an extraordinary thing.

Mr. Lichtman: Well, the issue, of course, was raised in South Carolina versus Katzenbach and the majority of this Court held that Section 5 was constitutional, that Section 5 immediately suspended the new law and that, until the covered state clears the new law, the law cannot go into effect.

But, now, we are in 196 --

Justice Hugo L. Black: You didn't go so far as to hold, but you're saying now that the effect of the Attorney G -- of submitting it to the Attorney General, and he's holding it there, that immediately requires the state to hold a new election.

Mr. Lichtman: Well --

Justice Hugo L. Black: Which means that the Attorney General is permitted to pass without submitting to any Court on the legality of a state law.

Mr. Lichtman: The appropriate remedy, Mr. Justice Black, in our view, would be to immediately undo what was done incorrectly in November 1967, and we should ask you to set --

Justice Hugo L. Black: I understand that, but you --

Mr. Lichtman: Set --

Justice Hugo L. Black: But --

Mr. Lichtman: Set this aside, but --

Justice Hugo L. Black: But the situation is like I said, isn't it?

It gives the Attorney General the power, if he holds the thing is bad, that that is binding on the state and it must have a new election right away.

Mr. Lichtman: I would phrase it this way, Justice Black.

Justice Hugo L. Black: Well, is that what it would be?

Mr. Lichtman: That's the effect, but Congress said the new law was bad.

And, the Attorney General merely has the power --

Justice William J. Brennan: No, the Congress didn't look -- the Congress didn't say the new law was bad, may I suggest.

What the Congress said was this state law shall not be effective unless such and such is done.

Isn't that what Congress said?

Mr. Lichtman: That's right.

Justice William J. Brennan: Now, if that's so, whether or not the Attorney General approves or disapproves, whether or not -- if the Attorney General disapproves, the District Court for the District of Columbia is valid.

Nevertheless, there was no state law in effect on the date of the selection.Was it?

Mr. Lichtman: That's correct, Mr. Justice Brennan.

Justice William J. Brennan: Well, then I don't understand how, under any submission you make, you can take any position other than that there was no valid election --

Mr. Lichtman: Well --

Justice William J. Brennan: In November 1967.

Mr. Lichtman: Mr. Justice Brennan, that is correct.

All I have done this morning is to suggest that it's unrealistic for us to expect you to order a new election in 60 days when they may submit but, logically, your position is correct and I'm very happy to take that position.

The November 1967 elections were not properly held because the new law was not properly clear.

Justice William J. Brennan: No, because the --

Mr. Lichtman: Therefore --

Justice William J. Brennan: No, because there was no law.

Mr. Lichtman: Well, the old law, presumably, would still be in effect.

Justice William J. Brennan: Well, the old law may be, but the law with -- under which r --

Mr. Lichtman: Right.

Justice William J. Brennan: The new law could not be given by force of congressional enactment --

Mr. Lichtman: Right.

Justice William J. Brennan: Any effect by the state whatsoever.

Mr. Lichtman: Right.

Justice William J. Brennan: Isn't that right?

Mr. Lichtman: That's right.

Justice William J. Brennan: If that congressional enactment of Section 5 is constitutional.

Mr. Lichtman: Right, and the old law was in effect.

Therefore, this Court could order Mississippi to hold elections pursuant to the old law.

And, we would be delighted if you would order that.

I think I will save, if Your Honors permit me to, the remaining few minutes for rebuttal.

Chief Justice Earl Warren: Very well.

Mr. Pollak.

Argument of Stephen J. Pollak

Mr. Pollak: Mr. Chief Justice and may it please the Court.

The issue this morning is a statutory interpretation one.

It involves the responsibilities of the states and the rights of citizens under Section 5 of the Voting Rights Act of 1965.

As has already been presented before the Court, the major and overwriting issue is whether failure to comply with the procedures of Section 5 precluded enforcement of the changed laws concerning the election of County Supervisors, the appointment of County Civil School Superintendents, and the requirements for qualification of Independent candidates.

The argument thus far has focused on one of four issues, which the appellees have projected in the case in which we believe are in the case.

I'd like to state them and I'm prepared to present argument on each of them.

The first is whether Section 5 is limited to the qualifications for registration to vote or whether it reaches beyond that scope to cover changes which affect voting and may violate the Fifteenth Amendment.

The second issue, not yet discussed, is whether, where a state fails to comply with the procedures of Section 5, a person whose vote is affected has a private right of action to seek to enjoin the enforcement of that changed law.

The third issue is whether, if such a private right of action is authorized by Section 5, it must be bought -- brought as the suits here were brought before three-judge Courts.

And, the last issue is whether these appeals are mooted because when the Clerk of this Court requested the Attorney General for his views on March 11 of this year.

He gave the Attorney General notice of the changes and the Attorney General has not made formal objection, or at least that is how the issue is stated in the appellees' briefs.

I believe the facts of these cases bear witness to the prophetic vision of the Congress in enacting the Voting Rights Act.

It was concerned, as the reports of the committees and the debates indicate, that once the barriers to registration were down, the states covered by the Voting Rights Act might resort, as they had resorted through previous 100 years to other statutes to preclude effective votes by Negros.

The Voting Rights Act was essentially a statute which, one, suspended literacy tests and devices which had been used to discriminate and, two, has had the Courts in the previous few years sought to freeze the presently existing statutes so that when the literacy tests were out of the way and Negros were able to register, those then existing statutes would remain in effect until the Attorney General or a Court of three judges and, in turn, this Court had reviewed the change to determine that the change was not a violation of the Fifteenth Amendment.

It did not put any final powers in the Attorney General, as we read it.

Justice Hugo L. Black: To determine it was not a violation of the Fifteenth Amendment?

Mr. Pollak: I didn't hear the first words of your question, sir.

Justice Hugo L. Black: Do you say someone -- until someone had reviewed it to determine whether it was a violation of the Fifteenth Amendment, who was there to review it?

Mr. Pollak: The Court of three judges of the United States District Court for the District of Columbia.

It was logged in a Court and the only role of the Attorney General, there is no requirement as we read the -- Section 5, that the state must make a submission to the Attorney General.

It may move to the three-judge Court immediately after -- when it wishes to enact or enforce a changed law.

The only provision for the Attorney General is that if the state believes that it has a change which is not violative of the Fifteenth Amendment and wishes to move through this procedure established by Section 5 faster than it believes it can move to the District Court, it may submit it to the Attorney General.

Justice William J. Brennan: In either case where there's -- the state goes directly to District Court for the District of Columbia or after refusal of the Attorney General to approve the legislation.

Was the District Court for the District of Columbia a three-judge Court?

Mr. Pollak: It -- we read it to require a three-judge Court, and --

Justice William J. Brennan: In either case?

Mr. Pollak: In either case.

Justice William J. Brennan: And then do what, appeal that record from that Court?

Mr. Pollak: It would be, Your Honor.

Justice William J. Brennan: We don't involve the District Court for the District of Columbia?

Mr. Pollak: No, Mr. Justice Brennan.

Justice Hugo L. Black: In your judgment, did the case of South Carolina and Katzenbach merely approve the constitutionality of the law as far as it went or do you say that that case require that we hope that it governs however that law is applied?

Mr. Pollak: I believe that the decision of this Court in South Carolina validated the constitutionality of Section 5.

I believe --

Justice Hugo L. Black: To the extent of what, anyway it's applied?

Mr. Pollak: Well --

Justice Hugo L. Black: Any application?

Mr. Pollak: I believe the first issue that is -- we've -- I articulated this morning, the scope of Section 5, is still open for this Court to rule in this case.

Justice Hugo L. Black: That only ruled it was constitutional in so far as it required it to be submitted, isn't it?

Did it hold what the effect was or could it hold that at that time, however it was applied, it was constitutional, the means of application?

Mr. Pollak: Your Honor, the Court had Section 5 before it, in that, a South Carolina statute changing the hours of voting from 6:00 in the evening to 7:00 in the evening was presented and the Attorney General adverted to it in the course of the argument.

The Court makes reference to that change in its opinion in a foot -- in the text and also in a footnote on page 320.

It also makes the statement there are indication in the record that other Sections the country listed above have also altered their voting laws since November 1, 1964, but the Court did not have before it the procedures which would be followed by the Attorney General or beyond that by the Court if there were any unusual procedures.

Justice Hugo L. Black: Do you think it held in that case that it would be unconstitutional to be, the result, not submitting it to the Attorney General or his saying it was bad, that that would nullify state elections?

Mr. Pollak: Your Honor, I believe --

Justice Hugo L. Black: Do you think that was held?

Mr. Pollak: I believe the Court did make this holding, not that -- I want to say --

Justice Hugo L. Black: I believe it hold it.

That wasn't the issue.

Mr. Pollak: I want to stay away from a statement or an argument that the Court held that if the Attorney General said it was bad, I believe those were Your Honor's words --

Justice Hugo L. Black: Well, whatever he held.

Mr. Pollak: The point that the Court ruled upon was this, and I believe it did hold this.

The Act suspends new voting regulations, pending scrutiny by federal authorities to depend to determine whether their use would violate the Fifteenth Amendment.

I believe that the Voting Rights Act, as I've used the word before, froze the laws at the time it was passed or as of November 1, 1964.

Justice Hugo L. Black: Was it without any Court passing on it?

Mr. Pollak: It froze those laws and said if the state wished to change --

Justice Hugo L. Black: The Attorney General could freeze it.

Mr. Pollak: No, the Act.

Congress of the United States froze it.

Justice Hugo L. Black: Well, the Act said, as I understand it, not that it did but the one submitted to the Attorney General.

Mr. Pollak: No, I don't believe -- I believe what the scheme of the Act, and I'm prepared to advert to the legislative history which I think is relevant, but the scheme --

Justice Hugo L. Black: I have no doubt about what they intended.

Mr. Pollak: The scheme of the Act --

Justice Hugo L. Black: Did they settle the constitutionality of it?

Mr. Pollak: Your Honor --

Justice Hugo L. Black: As applied.

Mr. Pollak: I believe that the Court in South Carolina v. Katzenbach and at pages 334 and 335 of 383 US did pass on the constitutionality of the sus -- of the suspension of changes and by the Congress.

Justice Hugo L. Black: In that case, on those facts to the extent that it was applied in that way?

Mr. Pollak: Well, I would respectfully --

Justice Hugo L. Black: Do you think it -- do you think in that opinion, the Court would actually begin to hold that anyway it's applied would be legal, constitutional?

Mr. Pollak: Well --

Justice Hugo L. Black: You don't think that, do you?

Mr. Pollak: No, but, Your Honor, the application of the Act follows after the freezing.

In other words, that application of the Act is the procedure by which the state may put into effect the change.

The Courts of the United States, and I don't believe it reached this Court because the Voting Rights Act was passed in the intervening time, but the Lower Courts of the United States in voting rights actions had adopted the freezing principle.

They had said that the laws under which Whites were permitted to vote and Negros were denied to vote, those laws or those procedures would be frozen in effect for a period of time which would allow the Negros equal rights to register.

And, that was the principle which Congress embodied in Section 5.

Justice Hugo L. Black: Well, it had -- their principle was so that the Attorney General of the United States, a prosecutorial officer who is not a judge, look at it and see if he thought it violated the Fifteenth Amendment, wasn't it?

Mr. Pollak: No, Your Honor, I don't --

Justice Hugo L. Black: Or would violate it.

Mr. Pollak: I don't believe that was the principle.

The principle was that Congress said any change shall be suspended.

The present law as of November 1, 1964 shall remain in effect.

Negros shall have five years.

The Voting Rights Act is a five-year Act.

During that five years, these laws were to be frozen.

The past discrimination was to be cleansed, and Negros were to be able to vote and not, as has occurred in this case, to have to litigate the changes during that brief five-year period while the changes were in effect.

The problem here --

Justice Hugo L. Black: Do you think it was the objective of the Congress to suspend any new law and leave the old Mississippi laws that had been on the books a long time in effect?

Mr. Pollak: I believe that is what the Congress did and it provided a speedy mechanism to meet that situation which Your Honor poses by presentation of those laws to the Attorney General or the state, of course, has the option not to present them to the Attorney General but to go right to the three-judge Court of the District of Columbia.

in that event, the suit would be against the Attorney General of the United States and I would respond at this point to the fact that I would not be prepared to concede, Your Honor, that the suit, if lodged in the District Court for Maine, would inappropriate location.

I believe these decisions in the --

Justice Hugo L. Black: Why wouldn't it, if the constitution prevented it in Maine than it more does here?

Mr. Pollak: I believe that the decisions of this Court have validated a suit in the District Court for the District of Columbia, and the requirement of suit here where the suit is brought against officials of the United States government, and this is their domain.

Justice Hugo L. Black: Constitutionally speaking, what's the difference?

Mr. Pollak: Well --

Justice Hugo L. Black: If a District Court of the United States is a District Court of the United States?

Mr. Pollak: I believe that the constitution requires that the procedure be appropriate to enforce the First Clause of the Fifteenth Amendment, and I believe that the appropriateness here called for speed and called for the Attorney General to receive that action and defend that action in the District of Columbia.

Justice Hugo L. Black: I'm not asking you these questions with any idea, believing the idea on your part, that I think Congress is allowed full power to pass its own laws and to have its Courts judge of their constitutionality.

Mr. Pollak: I --

Justice Hugo L. Black: That's quite different, however, to the question I'm asking you.

Mr. Pollak: Your Honor --

Justice Hugo L. Black: The Attorney General --

Mr. Pollak: I had no such thought in my mind.

I would've -- if -- I don't want to be repetitious, but we do not read the law to lodge a power in the Attorney General which is an absolute power --

Justice Hugo L. Black: Well, it's to suspend the laws, isn't it?

Mr. Pollak: No, Your Honor.

The suspension of the law was in the hands of the Congress of the United States which did do it in Section 5.

The law was suspended.

The change was suspended the day the law was passed, if there had been changes since November 1, 1964.

Justice Hugo L. Black: You mean the action of Mississippi in 1965 or 1966 was suspended by Congress in an Act passed in 1964?

Mr. Pollak: Well, the -- Your Honor, that -- the chan -- the Act was passed in, and effective, August 6, 1965 and the change between November 1, 1964 and August 6 was suspended and changes for the five years after the effective date were suspended until this procedure was found.

Justice Hugo L. Black: And committed them to the tender measures of the old Mississippi laws?

Mr. Pollak: Except in so far as those laws were suspended by the Voting Rights Act and the tests and devices were suspended.

The voucher requirement, the handwriting requirement, the constitutional interpretation requirement, those were suspended by Section 4 of the Act.

Justice Hugo L. Black: I suppose that Congress didn't sanctify the old Mississippi laws.

They were still open to attack in the Courts, were they not, by everybody who was --

Mr. Pollak: They were open to attack and the Department of Justice was presently litigating them in 77 voting rights cases in the South, not all in Mississippi.

Those cases were all pending and this Court had before it, only in earlier that year, in January of 1965 the full records of the way tests and devices has been used to discriminate the way.

As Judge John Brown of the Fifth Circuit said in dissent in United States v.Mississippi, he said the barring of one contrivance has too often caused no change in result only a change in methods, and that was Judge Brown's dissent.

This Court in the case reversed, in United States v. Mississippi in 380 US, just earlier in the year.

Justice Hugo L. Black: It took care of the device, didn't they?

Mr. Pollak: Your Honor, it did, but the problem that was presented to the Congress in passing a -- the five-year remedial measure of the Voting Rights Act was that the period of time, as Judge Brown said a change resulted then only in the adoption of a new contrivance, that Congress met the situation whereby Negros litigated for four to five years sometimes and ultimately prevailed.

Justice Hugo L. Black: But you say they suspended the new -- any new law and left the old laws in effect.

A suspension would do that, wouldn't it?

Mr. Pollak: That is correct.

Justice Hugo L. Black: That would sanctify the old law --

Mr. Pollak: Well --

Justice Hugo L. Black: For that time, wouldn't it?

Mr. Pollak: It --

Justice Hugo L. Black: I thought it was a fact --

Mr. Pollak: Congress --

Justice Hugo L. Black: Held back in the Courts.

Mr. Pollak: Congress did not sanctify the --

Justice Hugo L. Black: Well, you say you suspended it.

Mr. Pollak: They suspended changes.

Justice Hugo L. Black: Any new changes.

Mr. Pollak: Yes, sir.

We believe the words the legislative history of the initial interpretation of the statute by the Department of Justice and the interpretations given the statutes by the three states who have submitted and, by my review of our files, endeavored to comply with Section 5, that is South Carolina, Virginia, and Georgia, the interpretation of those states indicate that the coverage that is contended for in this -- in these three proceedings is the proper coverage.

The opposite position, that is that the statute reaches only the qualifications for registration, has little support, we believe.

The appellees cite a statement by Assistant Attorney General Burke Marshall, for whose information and knowledge of the statute I would have very great regard.

Mr. Marshall responded to a question of Congressman Corman who asked him "Mr. Marshall, has the Department of Justice given any consideration to the question whether the statute should address itself to the qualifications of candidates for office?"

And, Mr. Marshall responded "the main problem the Bill addresses is the qualifications of voters."

Now, that, I think, must be understood in the context with which Mr. Marshall made the statement and I think it makes the point.

The Bill addressed the problem that the registration requirements had been implemented and used to preclude registration by Negros.

There were few Negros qualified to vote.

In Homes County, one of the counties that is involved in Number 26 here, one of the school superintendent counties, in Homes, at the time the Voting Rights Act was passed, there were 100+% of the Whites registered and 0.23% of the Negros.

I looked at the figure for early this year, 1968, and in Homes today it's still 100+% of the Whites but it is now 72% of the Negros, and the Negros have a majority.

In any event, Congress suspending and excluding the use of tests and devices to discriminate, but it was also saying that no changes in the laws which would affect Fifteenth Amendment rights would be permitted.

And, that is what it passed Section 5, the --

Justice Hugo L. Black: I would be perfectly satisfied with your argument if Congress had held that certain things were devices and put it in an Act.

What disturbs me is that that should be applied by Congress delegating their powers, at least for a time, to the Attorney General of the United States.

Mr. Pollak: Well, Mr. Justice Black, we don't read that as a delegation.

The task --

Justice Hugo L. Black: What could it be, except that?

Mr. Pollak: The body that Congress called upon to make that determination of whether the suspension should be lifted, and there's a case of controversy, is the three-judge Court for the District of Columbia.

Justice Hugo L. Black: Whether the suspension could be lifted.

Mr. Pollak: That's correct.

Justice Hugo L. Black: Until that time, the suspension was in effect by reason of the determination of the Attorney General of what --

Mr. Pollak: No, by reason of Congress.

That's --

Justice Hugo L. Black: Well, if you say Congress authorized him to do it, how are you going to draw a distinction?

Justice John M. Harlan: Well, isn't the Attorney General simply an option of the states to short-circuit litigation if they can get his approval?

Mr. Pollak: Mr. Justice Harlan, that is what our understanding of the law is, and that is what we read the opinion of the Chief Justice to say in the first sentence on this subject in South Carolina v. Katzenbach.

The Act suspends new voting regulations and it -- there it is.

The suspension -- if we --

Justice Hugo L. Black: It suspends it on condition.

Mr. Pollak: No.

Justice Hugo L. Black: Isn't that what it suspended on condition?

Mr. Pollak: The State of Mississippi had full 360-degree scope to bring a lawsuit in the three-judge District Court for the District of Columbia on the day it enacted these changes.

The Congress made the judgment, whether it was wise or not is not mine to argue or review, and I don't think is the -- relevant unless it were a violation of the constitution.

It made the judgment that on the basis of this ample record of history of discrimination, 100 years, that the present laws of these six covered states and the counties and three others were to remain in effect with the exception of the suspended ones, the tests and devices, they were to remain in effect.

The Congress said "we prefer those laws until any changes are validated in a lawsuit in the District Court for the District of Columbia."

Justice Hugo L. Black: And if it had said that unconditionally, you'd have a different case, wouldn't you?

Mr. Pollak: I think it did say it unconditionally.

Justice Hugo L. Black: You do?

Mr. Pollak: The Attorney General --

Justice Hugo L. Black: You think that it says unconditionally and that, here, if the Attorney Generals were not in that we could construe that Act as suspending every effort of a state to amend its election law?

Mr. Pollak: I think that this reach of the law is broad because, as Mr. Katzenbach in res --

Justice Hugo L. Black: I'm confused.

Do you think that -- the question I asked, can you answer that one?

Mr. Pollak: That all of those changes which the state may wish to make --

Justice Hugo L. Black: That even though the Section was not bad and he'd been given no power, do you think this Court could honestly read that Act as providing that no state should change its election law or any southern state, I think they were careful not to touch it in the other, that any southern state is barred from changing any of its election laws that they have until -- indefinitely.

Mr. Pollak: For five years, Your Honor, I think that's what the statute means.

Justice Hugo L. Black: That it suspends it for five years without any action on the part of the Attorney General?

Mr. Pollak: I think the --

Justice Hugo L. Black: Do you think that the Act would mean that if the Attorney General Section were out?

Mr. Pollak: I do.

I think the Attorney General has a duty, if one is submitted to him, of course the time runs against the Attorney General, 60 days.

Justice Hugo L. Black: Well, if that's true, the Congress then, you say, froze all the election laws of the south --

Mr. Pollak: That's --

Justice Hugo L. Black: For five years?

Mr. Pollak: That is my -- that is the way I read --

Justice Hugo L. Black: They couldn't pass any for five years.

Now, that would raise a different question in my mind.

Mr. Pollak: I believe that --

Justice Hugo L. Black: I can't quite read it that way.

Mr. Pollak: Yes, sir.

The background of this is indicated in the state --

Justice Abe Fortas: Mr. Pollak, are you going to get to the next question that put which is whether there is a private right of action?

Mr. Pollak: Yes, sir, Mr. Justice Fortas.

The private right of action, I believe, is indicated by the changes in the wording of the statute which were made by the Congress.

As submitted by the President and the Administration, "the Bill prohibited enforcement of any," and I insert a word, "new law or ordinance imposing qualifications or procedures for voting."

It was a prohibition, in those words.

In made no reference in Section 5 to persons.

It prohibited enforcement of a new provision.

Congress refrain Section 5 and broadened it and inserted the words that until a state complies, "no person shall be denied the right to vote for failure to comply with such new qualification."

And, our understanding of Section 5 is that, in adding the words "no person shall be denied the right to vote for failure to comply," Congress recognized and created a right in private persons to bring a suit to enjoin the enforcement of one of the suspended statutes.

Without that provision, the private party would have to live under the changed provision and would have to travel the long route of litigation in a suit under 28 -- 42 USC 1983 in which he would live under the changed law and litigate it while the change was in effect.

The private right of action permitted the plaintiff to bring suit to recognize the suspension of the statute.

There's no problem about the jurisdiction for the private right of action in 28 United States Code 1343 Section 4 which authorizes relief under any act of Congress protecting civil rights, including the right to vote.

We are here contending that there's an implied private right of action.This is what the Cong -- the Court recognized last term in Jones v. Mayer saying the fact that 1982 is couched in declaratory terms and provides no explicit method of enforcement, does not, of course, prevent a federal Court from fashioning an effective equitable remedy.

Now, of course, there are procedures in the Voting Rights Act that provide for the enforcement and enforcement procedure for Section 5.

But, in a Number of cases, Borak -- J.I. Case v. Borak and others under the securities and exchange laws, the fact that one agency has an enforcement responsibility has not prevented the Court from recognizing an implied right of private action.

I would like to take a moment with respect to the three-judge Court provision where, again, a question of statutory interpretation is raised.

The evolution of the words of the statute, we believe, again shows that the Congress recognized that there would be other actions besides the three-judge action in the District of Columbia.

As the senate passed the Bill, Section 5 referred to the three-judge -- I'm sorry, Section 5 referred to the declaratory judgment action required to be brought in the District of Columbia, and then concluded in the last sentence such an action shall be before three judges.

And, I would read that law, had it become the law passed by the Congress, as limiting the requirement of three judges to the District Court.

Indeed, I might also have read it to limit or exclude any private right of action.

However, the House did not accept the senate version "such an action shall be before three judges," and changed that language to read, as it now reads in the statute, "any action under this Section," and my understanding of the change in the language is that the Congress recognized that there would and could be implied private actions and provided that any im -- such private action would be before a three-judge Court.

Justice Abe Fortas: Well, suppose we don't agree with that analysis and suppose we think that although the right was conferred by Section 5 upon the individual, the individual has to look elsewhere for his cause of action.

Mr. Pollak: That he has to bring it before a one-judge Court.

Justice Abe Fortas: Well, let's say it's a question.

Would he then have to bring in before the one-judge Court if, as I take it to be, situation here is also challenging the constitutionality of a state statute?

At least that's still in one of these cases.

Mr. Pollak: No, I would believe --

Justice Abe Fortas: Sir?

Mr. Pollak: I would believe, as Mr. Derfner said, that in the case where he combines a Section 5 claim with a claim of unconstitutionality under the Fifteenth Amendment that the three-judge Court is properly convened.

Justice Abe Fortas: It's sort of pending jurisdiction, isn't it?

Mr. Pollak: Well, that's right.

The problem is not fully resolved in these three cases, Mr. Justice Fortas.

Justice Abe Fortas: No.

Mr. Pollak: Because in Number 25 and Number 26, the plaintiffs dismissed the constitutional claim.

Justice Abe Fortas: I see.

Mr. Pollak: So, those cases would not properly be here if a three-judge Court is not required.

Justice Abe Fortas: So, there, they have to derive the three-judge Court provision from the four corners of Section 5.

Mr. Pollak: That's right.

Those two cases must find it within Section 5.

We don't rely on contentions as an amicus that the general doctrines of this Court annunciated in Swift v. Wickham or other cases would validate a three-judge Court here if it can't be found.

Justice Abe Fortas: Because, you could say that Section 5 gives the petitioners in 25 and 26 a right of action.

It gives them a right, but that right -- then, it would follow -- it might follow that that right would have to be vindicated before a single judge --

Mr. Pollak: That is --

Justice Abe Fortas: Except for the language you point to in Section 5, is that it?

Mr. Pollak: That is correct, Your Honor.

Before --

Justice Thurgood Marshall: Mr. Pollak.

Mr. Pollak: Yes, sir?

Justice Thurgood Marshall: What do you say did the states point that you didn't know about this at least as of March of this year, US Attorney -- Assistant Attorney General?

Mr. Pollak: We would say the state is correct.

We knew of these changes at that date, bug we would say that the Attorney General must rely upon formal procedures that the submission of the changes is submitted by the Chief Legal Officer of the state or the county and that we have followed those formal procedures.

In the argument on South Carolina v. Katzenbach, the question of the 6:00-7:00 change by South Carolina was raised in argument, and Mr. Katzenbach said the United States has no objection to that change.

It's argued by appellees that that exchange with this Court was an approval by the Attorney General of that change in -- under the terms of Section 5.

In fact, I've reviewed the files of the department.

South Carolina, 15 days after the argument, submitted that change in writing to the Attorney General and the Attorney General responded in writing on April 1, 1966 saying that he had no objection to that change.

We must rely on the procedures that are established by Section 5.

We do not feel called upon and, indeed, would've considered it out of order to have expressed an objection in a response to the clerk's request for our view because that is not the issue here, as has come out in the argument.

The merits of these changes are not at issue.

We have said in our brief and I would say, in oral argument, that we think each of these three changes poses a serious question of Fifteenth Amendment violation.

Justice Byron R. White: Mr. Pollak, why should -- if there's a private action before a single judge, why shouldn't the question be limited to just whether or not the statute that's in question is covered by Section 5, and --

Mr. Pollak: Rather than the Fifteenth Amendment?

Justice Byron R. White: Yes, because, otherwise, aren't you really -- doesn't the Act contemplate that the validity of the statute be passed upon by the Attorney General or the District of Columbia Court?

Mr. Pollak: Yes, I believe that the posing of the validity of the statute is envisioned by Section 14 of the law to be determined in the District Court for the District of Columbia.

Justice Byron R. White: So let's assume that in this c -- in one of these cases that in a Federal District Court in Mississippi the plaintiffs ask that the statute be declared unconstitutional.

Do you think the District Judge should dismiss it?

Mr. Pollak: I do.

Justice Byron R. White: It is so.

Mr. Pollak: The statute?

I thought you meant Section 5.

Justice Byron R. White: No.

Mr. Pollak: We had that --

Justice Byron R. White: The state statute.

Mr. Pollak: Yes, the state statute.

Justice Byron R. White: So that, any new state laws are unattackable on constitutional grounds in any district -- in any of the covered states of the Federal District Courts.

Mr. Pollak: Under -- I don't think the statute withdraws power.

I change my answer upon better understanding.

The statute does not mean to remove the power or the right of a private citizen to sue under 1983 where his rights are deprived by an unconstitutional statute.

He can still go into the -- it would really be a three-judge Court, but he can go in to litigate the constitutionality of the new law.

Justice Byron R. White: Then why should the Federal Court -- I would agree that if -- that if the Attorney General approves a statute or 60 days went by and he didn't approve it, I would think that some citizen could still nevertheless challenge it but, until it's approved or 60 days has gone by or it's approved, then there isn't any statute at all, isn't it?

Mr. Pollak: I would agree with that, it's not.

Justice Byron R. White: So then, how --

Mr. Pollak: It's not an effective statute and the Court should under -- the Court should understand --

Justice Byron R. White: So, the Court should dismiss it.

Mr. Pollak: It should dismiss it.

You're correct.

Justice William J. Brennan: Well --

Mr. Pollak: So, the jurisdiction would only -- I suppose logic would say that there's jurisdiction.

There's no case or controversy until the 60 days have passed because there's no law.

Justice William J. Brennan: Let me get this clear then, Mr. Pollak.

In one of these cases we have a Fifteenth Amendment claim, don't we?

Mr. Pollak: Yes, not --

Justice William J. Brennan: But you don't -- you're not suggesting that.

As I now understand your answer to Mr. Justice White, that the fact of that challenge invokes the three-judge Court provision in it of itself.

Mr. Pollak: Well, Mr. Justice White has analyzed that to, correctly I believe --

Justice William J. Brennan: In other words, there's no statute.

Mr. Pollak: That's right.

Justice William J. Brennan: And, therefore, there is no place for the invocation on that ground of a three-judge Court.

Therefore, that does come down, doesn't it, that you have to find in that case the justification for the three-judge Court within the four corners of Section 5?

Mr. Pollak: On that analysis, you wouldn't.

That analysis strikes me as correct.

Justice William J. Brennan: And so, you say there should be a three-judge Court in any of these cases.

Mr. Pollak: That is the way we would read --

Justice William J. Brennan: Under Section 5?

Mr. Pollak: Yes, sir.

Chief Justice Earl Warren: Mr. Pollak, before you sit down, would you mind telling us what the extent of the relief should be in this case.

Mr. Pollak: The Department of Justice has, in prior cases, sought not to upset elections that have previously been held and, therefore, we would be loathed to urge this Court to order the school superintendents who were appointed or the county supervisors who were elected at large in Adams and Forrest Counties to be -- their elections be upset.

We would ask this Court to declare the changed laws, in effect, perspectively and to remand to the District Court for requirement of new elections.

Justice John M. Harlan: Could I ask you a question just beyond that in your view in Adams and Forrest Counties.

Do you think that the measure of a device and the constitutionality is in the Court now, are you saying that?

Mr. Pollak: No, I believe that the issue -- if I understand Your Honor, I believe the issue in the three-judge Court for the District of Columbia is the constitutionality under the Fifteenth Amendment.

Justice John M. Harlan: You do?

Mr. Pollak: I do.

Justice John M. Harlan: And the Act as it has been brought.

Mr. Pollak: That's right, and the Attorney General should apply a Fifteenth Amendment standard in offering that avenue.

There's one statement by Mr. Katzenbach in the hearings in response to a question posed by Senator Irving.

He said "but the f" -- this is at page 237 of the Senate Hearings, but the effort here was to get at things that were not included within the words "tests and devices" and the thought that other things that violated the Fifteenth Amendment by a state should also be subjected to judicial review.

I -- it might help the Court if I just related a statistic which I assembled before I came.

It came up and argument was alluded to by other counsel.

The department has received 251 submissions under Section 5.

It has received one submission in November of 1965 from Alabama, a submission from a county in Mississippi in 1966, one, and no submissions from the State of Louisiana.

We have received a Number of submissions from the State of Georgia a Number or a few submissions from the State of Virginia and a rather large Number of submissions from the State of South Carolina.

The only occasions that the department has had to state that it could not consent were one case from the State of Georgia where the change was contrary in our judgment to a prior Court decision on the same issue, the Court decision having been made after the Voting Rights Act.

And, two other cases from the State of Georgia where, inadvertently, the changed statute incorporated another Section of the Georgia law by reference and that other Section provided for a test or device.

Justice John M. Harlan: Well, promptly speaking, generally into the Act itself.

Mr. Pollak: Well, we have in no case -- We must act within 60 days and in no case on the first submissions have we ever received any request to speed up our reaction.

I believe we could do that and, generally, matters being what they are, we take most of the 60 days but that -- there's no necessary requirement that we do so, and the question was raised in the argument on the Section 5 aspect of the Allen case which Your Honors heard yesterday as to the speed with which it could be done.

It seems to me they're -- the Department of Justice ought to be capable of dealing with these things promptly.

Justice Potter Stewart: Well, Mr. Pollak, let's assume that you just said frankly that, with respect to one or more of these changes which are involved here, that you had no objection to them, that if they were submitted, it was submitted, you would approve it.

In that particular case, would you think that there ought to be new elections?

Let's assume that the super -- let's assume that the qualification case, you thought that was a perfectly good provision, and let's assume that, tomorrow, the State of Mississippi submitted it to you and you approved it in writing, what do you think this Court or the District Court should do in this case?

It was no law.

Even if you win, it still -- it was no law until you approved it.

Mr. Pollak: I do think the remand order of this Court could incorporate that provision that if the state wishes to submit the provision promptly to the Attorney General and if the Attorney General states no objection, then the provision would have been effective and, indeed, is effective and new elections are not required.

Justice Potter Stewart: And if there were new -- certainly, if there were new elections, it would be held under the new law because it is a law then.

Mr. Pollak: That's right.

Justice Potter Stewart: And -- but what if the Attorney General turns it down and the state promptly files suit to save a day with the District of Columbia Court.

Mr. Pollak: I believe that the proper procedures would be for the state to have available to it all of the powers of stay authority and injunctive authority pending a hearing on the merits in the three-judge Court in the District of Columbia.

If my prior statements would indicate that the remand of this Court ought to preclude the state from that, I suppose I want to amend them, but I don't think that I can stray from the fact that the state of matters here was entered into by the State of Mississippi with knowledge of the Court's decision in South Carolina, with knowledge that the Court had ruled that the law was suspended and, therefore, the Court really faces the situation that Your Honors already mentioned that these laws had not been in effect down to the day.

They're not in effect now under our reading of the statute.

Justice Potter Stewart: Well, then that brings us back to the question asked to you by the Chief Justice.

If the Court should agree with you on the basic merits, I didn't quite understand what you think the proper disposition of these cases should be.

Remanded to the District Court, you said, and then what?

Mr. Pollak: Well, I stated that it should remand the case.

I would respectfully suggest that it remands the case to the District Court --

Justice Potter Stewart: Yes.

Mr. Pollak: With directions that the District Court declare the laws not in effect --

Justice Potter Stewart: Yes, but --

Mr. Pollak: So procedures of Section 5 are followed.

Justice Potter Stewart: But people now hold office as result of these laws, so we have to think a little bit beyond what you said.

Mr. Pollak: That's right, and I -- well, perhaps -- I will answer your question, but perhaps I should also ask the leave of the Court to frame paper and submit it to the Court with a careful statement of what the relief should be, not being the plaintiff parties in the case the government has not spelled out in its preparation --

Justice Potter Stewart: That would be helpful to me from -- if you would like to do that and, from your position, as amicus to show what your thinking would be in the event that would be --

Chief Justice Earl Warren: Would you do that for us please, Mr. --

Mr. Pollak: Yes, Mr. Chief Justice, we'll do that.

Chief Justice Earl Warren: Of course, serve it on the other side.

Mr. Pollak: Oh yes, sir.

Chief Justice Earl Warren: Very well.

Mr. Allain.

Argument of William A. Allain

Mr. Allain: Mr. Chief Justice and may it please the Court.

We are a little bit concerned ourselves about the type of relief which the appellants seem to want in the Court today.

We are on the impression, at first, they want to set aside the elections which were held in November and have new elections.

In view of the position they have taken today, we feel that maybe one of the most important questions before the Court is whether or not this issue is moot, whether or not the submission by this Court to the Attorney General and then the submission by us in our response brief to their brief, gave them the information, gave them the notice that is required by Section 5 of the 1965 Voting Rights Act.

Now, we say it is.

We know of no formal submission that has to be made to the Attorney General's Office.

Justice Byron R. White: Do you think of anything that the Attorney General says in the case that he either approves or disapproves these laws?

Mr. Allain: No, sir.

I think there's nothing in the briefs.

In fact, he states in his brief there that he is reserving onto himself the right to approve or disapprove at a later date.

We say to that que -- to that assertion, he cannot reserve onto himself longer than the 60 days which Congress itself has placed in the Act is the time in which he must make some kind of determination.

Now, he speaks of a formal right.

I know of no directive that the Attorney General's Office is put out on how we shall submit to the Attorney General our new laws.

And, just because --

Justice Thurgood Marshall: Well, you did --

Mr. Allain: While the other states have submitted them in one matter or the other is not binding upon the State of Mississippi nor is it controlling as to the -- what Congress really intended to do in Section 5.

Justice Byron R. White: Yes, but this case can't be moot unless you lose it first.

Mr. Allain: No, Your Honor, it could be moot if they have withdrawn their request for the relief which they have passed upon.

It was my understanding the position taken by counsel opposite, counsel for the appellant and not the amicus in this case, that as far as they were concerned, what they were really asking for was for this Court to tell Mississippi to submit this to the Attorney General's Office and let him approve or disapprove.

Now, we say this Court cannot command nor direct the State of Mississippi to do something which is beyond the scope of the Act itself.

We say, at this late date, that this has already been done, exactly what appellants want.

It has been submitted to the Attorney General of the United States.

He has not exercised his prerogative within the 60 days.

Justice Abe Fortas: Who submitted that?

I'd like to see --

Justice Thurgood Marshall: Mr. Allain, the State of Mississippi has not yet submitted.

I think your position that's stated in your brief is that this Court submitted it to the Attorney General.

Mr. Allain: That's true, Your Honor.

Justice Thurgood Marshall: Well, that's not what the statute says.

Mr. Allain: At that time, what --

Justice Thurgood Marshall: The statute says the state shall submit it.

Mr. Allain: When we submitted our response to their brief, at that time, we put them on notice through the Attorney General's Office.

Justice Thurgood Marshall: The statute doesn't say put on notice.

It says submit.

Mr. Allain: That's true, Your Honor, and I do not know what the statute really means by submit.

Does it mean by telephone conversation?

Does it mean by any brief?

Does it mean by passing on the street if we met the Attorney General and say "we've got a new law in Mississippi"?

Justice Thurgood Marshall: Has Mississippi done anything --

Mr. Allain: Yes, Your Honor, it has.

Justice Thurgood Marshall: Filed in March of this year to get in touch with the Attorney General by meeting them on the street or mail in or anything else?

Mr. Allain: We have submitted, Your Honor, in our brief.

He has been put on notice --

Justice Thurgood Marshall: That's exactly what you did here.

Mr. Allain: As required.

That is the only submission that we have made.

Your Honor, let me refer you to one thing that did happen, and this is a submission or at least the Attorney General Office accepted as such, we passed a constitutional amendment in which we have lowered the residence statute of Mississippi from two years to one year.

They sent registrars into the State of Mississippi just recently here to register individuals under the Act.

I was sitting at my desk one day.

A telephone call comes in for Mr. Bob Moore of the Justice Department asking me, he said, "we have known through the paper or otherwise that this constitutional amendment had been approved."

We have never submitted it.

He says "is that true?"

I said, "Yes."

He says "is it in the constitution?"

I said "yes."

He said "we will not notify the federal registrars to use that as a qualification."

That is submission.

That is approval.

Now, Your Honor, I don't know any formality.

I don't see how the Attorney General's Office can stand here today and say there's some formality when they have acquiesce in a change which came about after November 1, 1964, when I have submitted it over a telephone conversation and they, through their officials and agents, have put it into effect.

That, Your Honor, we think is -- actually, Section 5 is more of an informal thing and it must be tied in to whether or not a private suite can be brought.

We think, actually, the legislative history shown from the -- as we quote in our brief, the Attorney General just didn't want to have to roam over the southern states.

Justice Byron R. White: Of course, this is on the assumption that the Section 5 applies to these changes.

Mr. Allain: That's true, Your Honor.

I say --

Justice Byron R. White: You don't want --

Mr. Allain: At the threshold, if that was decided as a mooted question, you would not even have to reach these other questions which been brought closer.

Justice Abe Fortas: But if you take the position that this changes have been submitted to the Attorney General of the United States by or on behalf of Mississippi, then I take it you're not going to get anything to argue about here as -- let us say, you can't do that and still say that the Act does not apply, can you?

Mr. Allain: Yes, Your Honor, we could say that because if it had been a mooted question we would have no case of controversy here because the relief in question have already, or so I think have, been withdrawn as far as the appellants are concerned with.

The problem is in --

Justice Abe Fortas: Do you agree that the Act covers the various alleged tests and devices that are in issue in these cases?

Mr. Allain: No, Your Honor, but, as this Court --

Justice Abe Fortas: And, therefore, you don't agree that they'd been submitted to the Attorney General, do you?

Mr. Allain: What we're saying, Your Honor, is this.

We do not --

Justice Abe Fortas: Do you or do you not?

Mr. Allain: We can't submit --

Justice Abe Fortas: Do you or do you not?

Mr. Allain: No, Your Honor.

Justice Abe Fortas: Alright.

Mr. Allain: But we do not believe we had to submit it, but it was submitted and, therefore, is a mooted issue and there's nothing left for this Court to decide.

Justice Abe Fortas: It was submitted by the Clerk of this Court.

Is that what you mean?

Mr. Allain: Through the Clerk and also, Your Honor, through our response brief which brought attention to the Attorney General informally or, in this case, very formally in writing that we had such a law.

He had 60 days and he has done nothing about it.

Chief Justice Earl Warren: We'll recess now.

Mr. Allain: Mr. Chief Justice, I do not intend to delay the point any longer, Your Honors, in regard to the mootness question, though we do feel it in a very serious question in this case, but I would like to refer the Court to our brief in which we have quoted from the memorandum submitted to the Attorney General in this particular case.

"Since Section 5's approval procedure was devi -- designed to serve an informing function to provide a method of bringing to the attention of the government changes in state law," we again submit that this was merely to keep the Attorney General from roaming all over the southern states affected by 1965 Voting Rights Act and trying to find out every time when a new law in regard to voting was put into effect in these states.

It was merely --

Unknown Speaker: What page?

Mr. Allain: Page 15, Your Honor, of our brief, brief of the appellees, page 15.

Unknown Speaker: That's in the 25?

Mr. Allain: That's in the 25, yes, sir.

Justice John M. Harlan: Yes.

Mr. Allain: Which means, that we seriously urge the Court that the informing that the Attorney General received in this case was sufficient by the legislative history, by the intent of Congress, by the interpretation placed upon that Section by the Attorney General's Office themselves, that there was no need for any formal type of notice given to the Attorney General's Office.

We would further direct the Court's attention or invite the Court's attention to page 22 of the memorandum of the United States as amicus.

In which -- in this particular brief and on page 22 thereof, they admit or seem to admit that the Section 5 applies to reapportionment or to redistricting, what we have in this particular case before the Court today, and then they say, "the most that can be assumed from past silence is that the Attorney General was not prepared to impose an objection to the changes being at -- effective and, thus, declined to seek to compel a state or political subdivision to comply with what would have, in all likelihood, been a wholly formalistic step that would merely have delayed final implementation of a constitutional required restruction of government."

They are admitting there that, as far as they're concerned, there may be other areas in which there has been a restruction of government and they did not feel that they should make them take the formalistic step.

Now, this, Your Honor, does not tie in or does not fit in with Mr. Justice Brennan's remarks and I think Mr. Justice White's remarks that it is not for the Attorney General to make that decision whether or not they're going to be suspended.

If they are suspended, they are suspended until, if they come within the purview of Section 5, the attorney there submitted to the Attorney General's Office and approve or disapprove then that is appeal to the Washington,, D.C. Court.

What they're saying here is that there might be other areas throughout the south land, but we did not feel that we ought to take any step to make them do that.

Well, if you're going to be consistent and say that Section 5 says that the Act suspends these, what he is saying is that we've got laws out there that are being suspended.

We know they're being enforced, but we will not do our duty under Section 12 (d) of the Act of Sec -- in Section 12 which says that the Attorney General can bring an injunction proceeding to keep those states from doing what Section 5 says they cannot do.

Justice Byron R. White: I assume that if what you -- if we accepted your argument that the Attorney General really has been informed and 60 days had gone by, then the plaintiffs are in shape to challenge these laws directly in the District Court for constitutionality.

Mr. Allain: I would take that position, Mr. Justice White, because we take the position that they do not come under the 1965 Voting Rights Act.

If the -- this Court was to hold or if the position was taken as appellants apparently take it that it does come on the 1965 Voting Rights Act, then they could not challenge it in a local District Court bec --

Justice Byron R. White: Once the Attorney General has approved it.

Mr. Allain: Yes, Your Honor.

Excuse me.

I misunderstood your question.

Justice Byron R. White: You say, in effect, he has.

Mr. Allain: If --

Justice Byron R. White: And if 60 days go by.

Mr. Allain: If that is correct, then they do have, and we submit in our brief, Your Honor, that they have that right, then they had the right on the local level to bring a suit under the Fifteenth Amendment which is what they -- and let me -- I'd like to clear this up in the Marshall case and in the Fairley case which is the appellant supervisors.

We do not have, in that case, a Fifteenth or a Fourteenth Amendment question.

That was taken out not by stipulation, as in the other two cases.

That was taken out by a petition or a motion filed on the part of the appellants, an order granting that that second claim of the f -- be taken out of the lawsuit entirely.

So, we stand before the Court today resting entirely upon the jurisdiction of this Court and the three-judge District Court in the trial of the District Court --

Justice Byron R. White: On the Act.

Mr. Allain: Upon the Act in it of itself.

Justice Thurgood Marshall: Mr. Allain, assuming that these acts are covered by the Civil Rights Act of 1965, which I know you don't agree with, but assuming that for a moment, then is it your position that up until March of this year these particular Mississippi statutes were suspended and then 60 days after March, because the Attorney General didn't take any action, they get new life?

Mr. Allain: Your Honor, I would think --

Justice Thurgood Marshall: That would be an anomalous situation, wouldn't it?

Mr. Allain: No, Your Honor.

I think it would be more of the fact that they did not take any action is, more or less, an approval of it.

And, Congress intended it to be, more or less, retroactive.

Justice Thurgood Marshall: Well, that --

Mr. Allain: That if they would become effective after that date --

Justice Thurgood Marshall: There's nothing that you showed me so far that said the Attorney General knew about this before March, right?

Mr. Allain: Right, sir.

Justice Thurgood Marshall: So, he hadn't approved it before March.

Mr. Allain: To my knowledge, he had not, sir.

Justice Thurgood Marshall: And so, then, it was suspended because it hadn't been submitted to him.

Mr. Allain: My feeling in it, Your Honor, would be that if a law was passed or put into effect and it was submitted to him and he has the 60 days, that even if he did not act within that time or he approved it, that it would be more or less retroactive and it would become effective as of the time in which it was put into effect.

Justice Thurgood Marshall: What you're relying on the fact that he didn't disapprove it within 60 days.

Mr. Allain: To my mootness argument, Your Honor, yes.

Justice Thurgood Marshall: That's all I'm talking about.

Mr. Allain: Right.

Justice Thurgood Marshall: Well, his 60 days, according to your position, didn't start until March of this year.

Mr. Allain: No, sir.

Justice Thurgood Marshall: This year.

Mr. Allain: According to my position, it was last term, Your Honor.

First, when you -- when the Court had requested that this --

Justice Thurgood Marshall: Wasn't that in March?

Mr. Allain: Amicus should be filed.

I'm not sure of the date, Your Honor, but I do know that it's --

Justice Thurgood Marshall: Well, has it -- whatever date that is.

Mr. Allain: Whatever date it is.

Justice Thurgood Marshall: So, the -- he had not passed it on in one way or the other.

Mr. Allain: At that time.

Justice Thurgood Marshall: He had not had an opportunity under the statute to pass on it because it hadn't been "submitted."

Mr. Allain: Until submitted by this Court.

Justice Thurgood Marshall: So then, it was suspended.

Mr. Allain: But, he's not acting up on it, Your Honor.

We think Congress intended it would be retroactive and it'd be effective as of the date in which it was passed whether he approved it or whether he did not do anything about it.

We think you'd almost have to read that into the Act to keep the -- to keep it from being in suspension in that period of time when nothing would be really in effect or there'd be some conflict of the law.

Your Honor, we would like to say this in moot -- excuse me sir?

Chief Justice Earl Warren: Do you want this Court to say in any way the information about the Act goes to the Attorney General from by state by telephone or (Inaudible), that triggers the Act so far as the Attorney General is concerned or what do you concede to be the Congress in some protection kept the attention to have somebody inform those from state to the Attorney General in order to be --

Mr. Allain: Your Honor, I think that he would have to have some type of idea of what's informal because I don't -- really, we may be limiting but some manner from an official of the State of Mississippi.

Now, as I illustrated, the one in which the government accepted was a telephone conversation, but it did come from an Assistant Attorney General of the State of Mississippi to a Justice Department attorney.

I was being somewhat facetious when I told Mr. Justice Marshall about, on a street corner or something, there would be no documented evidence of it or there would not be an official of one of the state and an official of the federal government.

I'm not sure if the Chief Justice is speaking of some formality of some writing, some correspondent, some letter, or just what we have here.

Chief Justice Earl Warren: Not the formality of it but the informality which it seems to have had, but long to have said "no, they're not" from something that's ordinarily done in litigation that that won't be enough (Inaudible).

Mr. Allain: If the Court please, they have accepted it apparently in that manner, and I will place the instruction they've placed on it.

Chief Justice Earl Warren: In connection with that, what would be -- Well, that ought to be our Court.

Mr. Allain: I think it should be, Your Honor.

Chief Justice Earl Warren: In other words, do you want the Courts to determine whether the Attorney General ask him in a form of advise to look into collateral litigation.

I think, in that time, we'll find out if there was any word to say about speaking to the Attorney General, that's when we're going to have a direct litigation.

Mr. Allain: If the Court please, at this time, that is really -- in other words, I would rather limit it to what happened in this particular case which was a formal.

I would not want to foreclose it as a case, arbitrarily in this term of Court, it might be just around the corner, but this Court does not have to make that decision.

This Court does not have to go that far.

This Court can merely say, in this case, this was a formal or was all that was necessary under Section 5.

I would hate to --

Chief Justice Earl Warren: Do you have the impression that (Inaudible) you told us about a telephone conversation.

Mr. Allain: Right, sir.

Chief Justice Earl Warren: In which somebody in the Attorney General's Office --

Mr. Allain: Right, sir.

Chief Justice Earl Warren: (Inaudible) somebody in the State of Mississippi.

Mr. Allain: Right, sir.

Chief Justice Earl Warren: And, do you suggest that was sufficient for the likes of the Act?

Mr. Allain: I contend it was, Your Honor.

I contend that the government contended that it was.

Chief Justice Earl Warren: That you should recognize in our decisions that that what's you're talking about.

Mr. Allain: I do think so, Your Honor.

I really do.

Now, I would like to say this.

Now, at the outset, counsel for opposite place quite a bit of their time and effort discussing ratios of Negro to White discussing the counties, how their makeup was.

Now, I would be less than honest with this Court.

If I was to stand before you and say there is no racial overtones here, that until I came here today I didn't realize that race was one of the prime movers of this particular lawsuit, but I will say this.

Before this Court, race is not a question.

As Justice Stewart said earlier, we only have a question before this Court, first, of the jurisdiction which has been limited discussion over as of this time and, secondly, whether or not this Act, I don't care where it was, I don't care if they were all-Whites or all-Negro, whether or not this type of Act in the Marshall and the Fairley case, and I would like to limit my argument to that, Mr. Wells will discuss the other cases, whether or not it came within the purview of the 1965 Voting Rights Act.

And, I think I'd like to make that clear because there is no need to discuss in this case racial, but I would like to say this in regard to a question posed by Mr. Justice Fortas.

We know that this Court decided in the Avery versus Midland County Texas case that the rationale of the Reynolds v.Sims goes down to the local level, and that was the first time this Court had actually made that pronouncement.

April 11, 1966, shown in appellant -- appellees' brief at page 15 in Number 25, now, let's get these dates, Your Honors, April 11, 1966, the Chief Judge of the Southern District of Mississippi, Judge Harold Cox, in the case of Crosby versus Pearl River County in which a suit was filed to de -- command that -- the supervisor to redistrict, motion to dismiss was filed on the grounds that the rationale of Sims did not -- Reynolds did not come that far down.

He found that it did in April 11, 1966, and he directed Pearl River County to redistrict.

This Act, other suits were filed.

The legislature did not pass this Act until May 27, 1966, having put on notice that the District Courts of the Southern District of Mississippi felt that the reapportionment decision did go down to the county level.

Your Honors would have to be familiar with some of the counties of Mississippi to realize we don't have any debates in the legislature and the legislative history which we can bring before the Court, but many other counties in Mississippi cannot be redistrict for the simple reason that the population might be grouped up in the southern area or the northern area like in Hines County, the Jackson is grouped -- the people in Jackson are grouped up in the northeastern Section.

So, the legislature felt that they must do something, put on notice by the District Court that they were going to apply this Court's decision in the Reynolds case to allow these counties to do something to comply with it.

There is just an impossibility in many of the Mississippi counties, I'd say in many counties throughout the United States, to actually draw off lines, rational lines, and put the population where they would not be within a certain percent of the ratio in the five districts.

Your Honor, because of the way that the population is grouped up in one area, and we must not only take in the consideration, I think this Court has said we don't have to take in completely the population, you would have all of the county grouped up in here and the people down here having very little representation.

There are a Number of people scattered throughout that area but of different diverse types of economics, maybe farmers here and maybe blue-collared workers here and, up in this area, white-collared workers and your wealthier people.

It has been shown just by surveys through survey companies that it is almost an impossibility in some of the counties for us to really redistrict.

Now, of course, this Court, as I read the decisions, have placed in the Virginia Beach case its stamp of approval upon the very thing which these two counties had done, and also made mention and, I guess, reapproved the Virginia Beach case in the Avery versus Midland County Texas case So, what I was trying to get before the Court that, irrespective of what counsel might thought was the reason for doing this, there were good concrete reasons existing in Mississippi's District Courts.

Justice John M. Harlan: (Inaudible)

Mr. Allain: That's true, sir.

Justice Byron R. White: Why do you waste your time on it?

Mr. Allain: Your Honor, because the counsel, I guess, spent so much time on it, there were quite a Number of questions from Court --

Justice Byron R. White: We'll never get to the --

Mr. Allain: And the bench in that regard.

Justice Byron R. White: We'll never get to the merits.

Mr. Allain: And I was really merely asking -- answering a question posed by Justice Fortas when he was, I think, he asked if there'd been any commands by the District Courts or commands by any Courts to redistrict.

And, I was answering that question and, on July 27, 1966, a three-judge District Court had called upon one of the counties.

That was prowled of what was done in Adams and in Forrest Counties.

Now, moving on from that question, Your Honor, we come to the question which was actually raised or not raised but urged by this Court, and that is to the jurisdictional question and one in which the government was asked to file a brief.

Whether or not this Court has jurisdiction because, there, was a properly convened a three-judge District Court in Mississippi.

Now, we're all in accord, I think, on this one principle.

How do you read the last sentence of Section 5 of the 1965 Voting Rights Act?

It is just that simple.

Whether any action under this Section, and I'm quoting from page 6 of our brief, any action under this Section shall be heard and determined by a Court of three judges.

Now, we say that that sentence was merely referring to the subject matter that is referred to in Section 5.

The only subject matter referred to in Section5, the only action referred to in Section 5 in the Court is a declaratory judgment in the District Court of Washington,, D.C.

And, that is when if first we have submitted our new laws to the Attorney General's Office and he has refused to approve it and then we file our case in the Washington, D.C.Court or if we wanted to bypass for some reason, I don't know what reason we might have, the Attorney General's Office, we proceed originally in the Washington, D.C. Court.

That is the only action, Court action, with Section 5 or the subject matter of Section 5 is concerned with.

And, we say to the Court that that terminology, under this Section, was referring to the declaratory relief or declaratory judgment in the Washington, D.C. Court, and this Court does not have jurisdiction because the three-judge Appellate Court -- I mean, three-judge District Court in the Southern District of Mississippi was improperly convened.

If any action lied at all, forgetting about all the other technicalities, the jurisdiction would have been in a one-judge District Court.

And, as I say, of course, we'll admit that is not necessarily compel, as Justice Holland said in the Swift case, does not compel a reading of that but it is a more appropriate reading, and the rationale of the Swift case was, in construing 2281, that anytime we construe any section which gives jurisdiction to a three-judge Court we should construe it in a limited manner to keep from placing the burden upon three judges and the Appellate Court.

Now, counsel opposite says that it is appropriate.

Why is it appropriate?

Because of the rationale of 2281 and the concern of Congress that we have here a clash between the State of Mississippi and appellants on what we can enforce and what we cannot enforce.

Well, of course, that isn't true, and that was laid to rest in the Swift case.

We are not really concerned with a clash between the State of Mississippi and its laws on a constitutional ground.

We are merely concerned with the same clash that you found in the Swift case with the Supremacy Clause and whether or not what we had done in Mississippi is in disregard to an Act of Congress.

So, it does not rise to the dignity of what Congress was worried about when they enacted 2281.

It does not rise to the dignity of a one-judge District Court enjoining the operation of a state law on unconstitutional grounds.

And, as this Court held in the Philips case, if we are merely talking about whether an individual was unconstitutionally applying the law, even in that case, we would not have this situation.

Justice Thurgood Marshall: Mr. Allain, why do you think they require a three-judge Court from the district on the same Act, instead of having a one-judge?

Mr. Allain: In the District Court of, D.C.?

Your Honor, when you go to the Washington, D.C. Court, you go up there as the petitioner, but you have to prove this and the burden of proof rests on you.

You have to prove that this law was not passed for the purpose and effect of denying someone their constitutional rights, voting rights, because of race.

It is a Fifteenth Amendment question in that sense.

You would think that 2281 would give you jurisdiction.

There is a colloquy between Senator Irving and Senator Katzenbach -- I mean, Attorney General Katzenbach --

Justice Thurgood Marshall: Councilman.

Mr. Allain: Which we have cited in our brief.

Justice Thurgood Marshall: Yeah, I know.

Mr. Allain: And, which say even though you have the same effect, even though that Court is making a declaratory judg -- is denying your declaratory judgment is what they're doing, in essence they are saying this.

You have not proved that the purpose and effect of this Act is not unconstitutional.

Justice Thurgood Marshall: I thought that the reason was they didn't want one single judge to pass on life and death of a state statute, one, and, two, rapid access to this Court was the reason for the three-judge Court in the District of Columbia.

Mr. Allain: You're absolutely correct, Mr. Marshall.

Justice Thurgood Marshall: Well, that's -- I think that Congress is a little on the other argument that when an individual sues he has to have -- one judge is enough.

Mr. Allain: With all deference to Your Honor, it does not because it does not draw into question the same type of Act.

Justice Thurgood Marshall: I see.

Mr. Allain: It does not draw in the question on constitutionality.

It does not draw in the question of the constitutionality of the Fifteenth Amendment.

It merely draws into question what was drawn in the question in the Swift case, the Supremacy Clause in which this Court said that that would not reached the dignity in which Congress was concerned with.

And, I think that colloquy between those two gentlemen in the hearings recognized it was actually -- what you're doing is the same thing.

Justice Byron R. White: But, it seems to me that if there's a private right of action to determine coverage in the first place, it's either going to be under Section 5 or it isn't going to be anywhere, isn't it?

I mean, the right of these parties to be in Court at all to determine the coverage of Section 5.

Mr. Allain: That's right, Your Honor.

That's correct.

Justice Byron R. White: It -- their right either arises from Section 5 or it doesn't exist.

Mr. Allain: If they have --

Justice Byron R. White: Isn't that right?

Mr. Allain: If they have a right --

Justice Byron R. White: In either --

Mr. Allain: Your Honor, it is not really -- I hate to get in rights because we've made the distinction in our brief to the Court between remedies and right, but let's forget about that in this instance.

If they have some kind of right to enforce Section 5, they have another jurisdictional statute which they have alluded to, which they have asserted in their complaint that they had been denied some right given to them by Congress.

But, we are merely talking about what did Congress mean about is that a right under this pursuant to or is it pursuant to a general jurisdictional statute of a right which hwas vested under Section 5?

Justice William J. Brennan: Forgetting right, do they have a cause of action which arises under Section 5?

Does the individual get the word "right?"

Mr. Allain: No, they do not.

Justice William J. Brennan: They do not at all?

Mr. Allain: They do not.

Justice William J. Brennan: Well, then, it wouldn't matter whether it was a single-judge or a three-judge Court.

How could it?

Mr. Allain: Justice White had, I think, assumed that they had a right under Section 5.

Justice Byron R. White: Well, I don't --

Mr. Allain: I thought this question to me was the assumption of a right.

Justice Byron R. White: I don't care what words you use.

I just want to know whether -- what dose Section 5 say, any action under this Section?

Mr. Allain: That's right, Your Honor.

Justice Byron R. White: Will be heard by a three-judge Court.

Mr. Allain: In the action under, and what we had claimed in the --

Justice Byron R. White: Alright, now, I'll just -- if this action isn't -- is auth -- if these people can stay in Court at all with this cause of action, is it an action under Section 5?

Mr. Allain: Not in intent of Congress in the way the language is written.

The jurisdiction --

Justice Byron R. White: Well, how will they get into Court at all then?

Mr. Allain: The jurisdiction is what we're speaking of.

Justice Byron R. White: Where does their cause of action come from though?

Mr. Allain: It comes from the general jurisdiction statute which allows him to seek injunctive relief, I believe.

Justice William J. Brennan: But jurisdictional statutes don't create cause of action.

Justice Byron R. White: Heavens, no.

Mr. Allain: What I'm trying to --

Justice William J. Brennan: Really, what they're asking, as I understand, you've isolated this to the single question.

They're asking that it be adjudicated that Section 5 covers these Mississippi statutes.

So, it's a question of coverage within or under Section 5, isn't it?

Mr. Allain: I'm -- yes, Your Honor, but --

Justice William J. Brennan: Isn't it practically what -- that's what they're after.

They want the Court to say that these Mississippi statutes come within the purview of Section 5.

Mr. Allain: Right.

Justice William J. Brennan: If that's true --

Mr. Allain: They're asking for --

Justice William J. Brennan: Why is it that the Voting Rights covers Section 5?

Mr. Allain: They are asking for more.

They are asking for the language that any action brought under --

Justice William J. Brennan: Essentially, isn't that what they're after?

Mr. Allain: Essentially, that's what they're after.

Justice William J. Brennan: That's what this lawsuit is all about and whether or not it is obvious to the Court is certainly, as a matter of fact, that there are meetings there.

Mr. Allain: With difference to Your Honor, I do not think that if we found that they had a right existing or given to them by Section 5 that the action under Section 5 which Congress was referring to is that action.

I think that's under the general jurisdictional statute.

Justice William J. Brennan: That's right that the Congress didn't say any action under Section 5.

It's limited only to an Act that's brought into Court, isn't it?

Mr. Allain: Right.

Justice William J. Brennan: Nevertheless, it certainly is arguable if their cause of action, namely where Mississippi is practically covered under Section 5, it's an act under Section 5, that Congress said any action under Section 5 that's brought into Court.

Mr. Allain: Yes, Your Honor, I said it was not -- this language did not compel that reading.

It was a more appropriate reading of it, and with the rationale of the Swift case.

I would not say -- I stand before this Court and say this Court would be way off base if it did so hold, but I think our interpretation in the legislative history and the type of action talking about in the three-judge situation would lead to the more appropriate reading which we say should be the reading.

Justice William J. Brennan: The legislative history for that --

Mr. Allain: Yes, sir.

Justice William J. Brennan: Because I've forgotten it.

Mr. Allain: The legislative history is rather weak in that particular --

Justice William J. Brennan: Yes, it doesn't appear that it came in, in connection with some adamant versions only to the District of Columbia course of action, does it?

Mr. Allain: I'm not too sure of that, Your Honor.

Justice Abe Fortas: Well, the United States suggested to us that the language as originally drafted said such action, which would seem to refer to the action brought in the District of Columbia and that was later changed, according to the United States, to any action under this Section.

Do you have any observation on that?

Mr. Allain: Your Honor, I do not give a lot of weight into the change into the language.

I do not read it and see how it changes necessarily the reading of the language.

And, as we all know, of course, somebody in Congress might have thought, one, the language might be better to bring about something and I hate to get into reason why somebody brought the language.

Justice Abe Fortas: But you don't have --

Mr. Allain: I don't think the reading itself necessarily means that.

Justice Abe Fortas: You don't have any offsetting --

Mr. Allain: No, Your Honor, I do not.

Justice Abe Fortas: Legislative history.

Mr. Allain: I don't have no offsetting legislative history.

We say that the private parties lack standing for this for this simple reason.

I think it showed and it's illustrative of what we've been doing here today.

The 1965 Voting Rights Act is more like a jigsaw picture.

I'd rather say picture than puzzle.

And, it must be read together and, like a jigsaw, when you pull one piece of it out and isolate it and say, now, what does this section say, that's when you find yourself in trouble.

Now, we think the entire Act, as we said before, was remedies and not rights.

And, as this Court said in the South Carolina case, speaking through the Chief Justice, that this Act created new and stringent remedies that this Act and Congress had marshaled an array of weapons to be used effectively by the United States, and we feel that it --

Chief Justice Earl Warren: For what purpose?

Mr. Allain: For the purpose, Your Honor, of, one, seeing that no one is denied in the future any of their constitutional rights and to eradicate what rights have been denied in the past.

Chief Justice Earl Warren: Rights, we get back to the rights.

Mr. Allain: That's true, Your Honor, but the Act itself, and as Your Honor stated, the Act itself, we're talking about the Fifteenth Amendment.

That is where the rights come from.

South Carolina -- in South Carolina, Your Honor said that Fifteenth Amendment is self-executed, that these people had certain rights at that time.

We passed the 1957 Voting Rights Act.

We passed the 1960 Voting Rights Act.

We passed something in 1964 and, yet, their rights under the Fifteenth Amendment had not been vindicated.

So, what had Congress done?

Congress had created new and stringent remedies, not rights but remedies.

Chief Justice Earl Warren: For the vindication of the --

Mr. Allain: For the vindication, and placed them on the hands of what body?

The Attorney General.

Why?

Because it is a public interest we're talking about here and not just an individual interest.

Now, it's rather odd that the government at this time takes the position that a private party can bring a lawsuit when, in the Apache County Arizona case in which we've cited in our brief citing their brief, they say the responsibility -- the complete responsibility rest with the government and, in that particular case, they tried to keep the -- some of the Indians of Arizona from intervening because they said "no, you don't have any right in this lawsuit."

We are vindicating a public right and, in their brief, they took the position that the responsibility rest in the Attorney General and they set out as one of the sections, Section 5.

Now, as Justice Black said in his dissent in regard to Section 5, this is something new in the law.

This is something that's harsh in the law.

And, as this Court said, it is harsh, but harsh means "when necessary."

Therefore, we do not believe that Congress would've placed this type of action, this type of remedy in just at the whim of any individual who wanted to bring a lawsuit and say "now, look, you haven't gone up in the Attorney General's Office first."

Look at the ratifications that might come from that.

Let's assume that we did go to the Attorney General's Office.

Let's assume that we went up there with the Act itself and said "Mr. Attorney General, here is the Act, read it and will you give us a written opinion."

And, he says -- he reads and he says "that is fine,I have no objection to it."

I don't know of any publication of that.

I don't know how any citizen is going to know about that, but every citizen in Mississippi or Alabama, Virginia, or anybody who come within the Act can then say "well, I'm just going to bring a lawsuit because I don't think you've gone to the 1965 Voting Rights Act."

Justice Thurgood Marshall: Well, Mr. Allain, what happens if the Attorney General never hears of the Act?

Mr. Allain: Never hears of the Act?

Your Honor, I think the Act --

Justice Thurgood Marshall: What does the --

Mr. Allain: Excuse me.

Justice Thurgood Marshall: What does the person who's injured, what can he do about it?

Mr. Allain: Bring it to the attention of the Attorney General of the United States.

Justice Thurgood Marshall: How?

Mr. Allain: By letter or, I hate to say telephone conversation but, by any method to relay to the Attorney General's Office.

Justice Thurgood Marshall: But he couldn't go to Court about it?

Mr. Allain: He could not go to Court about it under Section 5, Your Honor.

He could go to Court about it only on the facts that it was unconstitutional under the Fifteenth Amendment.

Justice Thurgood Marshall: Well, so many was not unconstitutional.

It was just a violation of the Act.

Mr. Allain: No, Your Honor, he could not.

Justice Thurgood Marshall: So that the people that the Act was passed to protect would be out of luck.

Mr. Allain: They would not be out of luck, Your Honor, because we will have to assume and Congress assumed that the Attorney General would do his duty.

They have to assume that --

Justice Thurgood Marshall: Well, I -- couldn't they assume and couldn't Congress assume that the State of Mississippi would've submitted it?

Mr. Allain: We would've submitted it if we felt, Your Honor, that it was within the purview of the 1965 Voting Rights Act.

But, getting back to Your Honor's question of what would the individual have to do, he could submit that to the Attorney General's Office not for approval, don't get me wrong.

Justice Thurgood Marshall: Well, suppose he submits it to the Attorney General's Office and the Attorney General's Office doesn't pay any attention to it.

Now, what rights does the citizen have after 60 days?

Mr. Allain: As to the 1965 Voting Rights Act and to the suspension and the submission, none, Your Honor, because that's not a right of his.

It's not his -- really the right he's got to do anything about it.

Justice Thurgood Marshall: Well, what good is it to him?

Mr. Allain: Well, Your Honor, there's a section in the Act which says that if a man is denied the right to vote, the action of vote having counted, that he can submit that to the Attorney General and the Attorney General may bring an action, and they bring an action.

Justice Thurgood Marshall: I'm saying this is a thoroughly uncooperative Attorney General.

Then, the individual citizen is without remedy.

Mr. Allain: Well, Your Honor, he --

Justice Thurgood Marshall: Since you say that this is the remedy, he is now without a remedy.

Mr. Allain: He is without remedy to see that the State of Mississippi first submitted.

This is something new.

It's not something that he had as under the constitution.

It was something Congress came up with.

If Congress wanted to limit who they would allow to sue, that's Congress' --

Justice Thurgood Marshall: Well, what happens if some Court disagrees with you in the State of Mississippi as to whether or not this is covered by the Civil Rights Act and the Attorney General does nothing, nobody else does anything, and we have a right, we've got a remedy or remedy without anything?

Mr. Allain: You have a remedy, Your Honor.

See, that phr -- I don't like to further the right.

Justice Thurgood Marshall: What's the remedy?

Mr. Allain: Because no right was conveyed upon him.

Justice Thurgood Marshall: What's the remedy that may enact --

Mr. Allain: That is the remedy.

Your Honor, what I'm trying to say is that it has created no right in the private citizen.

The private citizen says "look, I got a right but got no remedy."

The right was created -- or the remedy was created by Congress and it gave it to the Attorney General.

Now, the man standing over him has not been heard because we're not talking about constitutionality of the Fifteenth Amendment.

We're talking about a mere process that Congress felt was necessary to inform the Attorney General.

Justice Thurgood Marshall: If the man is denied the right to vote because of race, he's slightly injured.

Mr. Allain: He can bring an independent lawsuit, Your Honor, based on that.

Justice Thurgood Marshall: In what Court?

Mr. Allain: Well, as we said in the Court here today that if he gets -- if we extend the law, as the appellants attempt to extend today --

Justice Thurgood Marshall: No, under your theory.

You said he has a remedy in a Court.

Which Court?

Mr. Allain: Well, if -- he had a remedy in the District Court of Washington, D.C.

Justice Thurgood Marshall: Where do you get that from?

Mr. Allain: If --

Justice Thurgood Marshall: Section 5?

Mr. Allain: Sir?

Justice Thurgood Marshall: Do you get that from Section 5?

Mr. Allain: I get that from the Section which says that, as far as the declaratory judgment, it must be by the -- it's in Section, I think, Section 12.

Justice Thurgood Marshall: Do you say that if these appellants in this case had filed a case for a three-judge Court for the District of Columbia, it's alright?

Mr. Allain: You're right, sir.

Justice Thurgood Marshall: That's your position?

Mr. Allain: That's my position because its' not Section 5 that takes away the authority.

It's Section, I think, Section 12 which says no -- or 13, no declaratory judgment shall be entered except in the Washington, D.C. Court, but that is talking strictly to Section 5 and Section 4.

But, I think we must tie this -- the whole thing here that the government themselves had stated, that the responsibility of enforcing this Act is in them.

If, let's take on the Section 4.

We had a tested advice.

Now, the Act is brought in Washington, D.C.

You can't go to the Attorney General's Office under Section 4.

You bring it in Washington, D.C.

You have the burden of proving that there's been no purpose of effect of discriminating the last five years.

There's no right of intervention for a private party.

That's a position that the Attorney General's Office took in the Apache County case.

So, we have here again something that you might say is a remedy, but no right in this private individual to come in and say "yes, there had been some discrimination."

Now, in the Apache County case, the District Court did allow an intervention but under its inherent powers, but the Attorney General's Office took the very opposite view.

Now, the next question, Your Honor, that we come to if the Court did not buy argument on all this other and felt the jurisdiction lies here and the private citizen does have the right, we're talking about redistricting, reapportionment in Adams and Forrest Counties.

Now, we say the legislative history, the legislative intent, had absolutely nothing to do with reapportionment.

We say that the con -- the intent of the Act had only to do with things which went directly to the vote of the registration and nothing absolutely to do to how a candidate shall be selected.

Now, here, they're talking about a dilution of vote.

There'd been no dilution of vote in this particular case.

Instead of voting for one supervisor, they may go for five supervisors.

The counties had only done what this Court has commanded in the Avery case, to give the vote to be weighed across the board.

Now, we don't think there's anything in the legislative history, in the debates, in this case -- this Court's decision in South Carolina that would ever say that reapportionment cases or redistricting cases were contemplated under the provision of Section 5 of the Voting Rights Act.

And, it's -- to look at the hearings themselves, and this is merely what we call a freezing, what we've got here is a legislative freezing.

On several occasions, the Attorney General alluded to the fact that this is nothing more than like a reapportionment case where the Court says "this plan is wrong, go back and get another plan and come in here and let's look at it, and if we like it, fine, stamp of approval."

But, nobody asked the next question, the very next logical question, if it were ever in the minds of anybody.

Reapportionment has been in the minds of Congress.

They'd been trying to get an Act passed so they can take it out of the Court's hands.

The next logical question would've been "well, Mr. Attorney General, does this apply to reapportionment cases?"

He was talking about the same type of authority, same type of freezing principle and, yet, nobody asked the next logical question.

Why didn't they ask the next logical question?

Because everybody in those hearings, the President already knew that they were not talking about redistricting and reapportionment.

That they were talking about -- they would directly affect the vote.

They were talking about tests and devices and then supplementing -- I mean, putting something else in that effect.

We know here that Section 4 and Section 5 are connected.

Section 5 goes out of the window once Section 4 is no more applicable.

Why?

We're talking about Section -- tests and devices in Section 4, and the same type of thing they were talking about in Section 5 was saying that you're going to supplant for the tests and devices.

We say to the Court that if this Court finds that this type if actions come within the purview of the Voting Rights Act of 1950 -- 1965, you have almost started the reapportionment, You have taken out of the District Court the right to look at any plan and approve that plan, and they had placed in Washington, D.C.

Now, there had been a lot of talk here this morning about "well, if you submit your plan, if it's good, you'll get it approved."

Suppose a count -- a state doesn't want to submit the plan.

Suppose a county doesn't want to submit the plan.

What are you going to do about it?

This would completely establish what the Reynolds case said, what the Fourteenth Amendment case has said.

Justice Abe Fortas: Well, what do you suggest we do about it?

Supposing that this Court holds that for your opponent here, and suppose that it is -- this Court should decide that the statute commands it to be incumbent upon the state to submit these plans and suppose the state doesn't do it.

Is that what you're putting up test, really?

Mr. Allain: You mean the relief to be granted by this Court, Your Honor?

Justice Abe Fortas: Yes, I'm asking if you're really suggesting to us a state of facts in which this Court holds that the Congress required that these matters at issue in this cases be submitted to the Attorney General.

Are you really asking us what happens if the state doesn't comply?

Mr. Allain: Your Honor, I only used that argument as to the effect that I do not believe that Congress ever intended to fully roadblock or to impair or put an obstacle in the path of the rationale of the Reynolds case and Avery versus Midland Texas.

I think --

Justice Abe Fortas: Yes, but I just thought --

Mr. Allain: I'm just posing that before the Court.

Justice Abe Fortas: I just want to make sure that you are not suggesting that we have to consider what happens if the state does not comply with our decree.

Mr. Allain: No, Your Honor.

I was suggesting that the, more or less, absurdity of the fact that Congress, concerned with the Fourteenth Amendment and redistricting will come along here with the 1965 Voting Rights Act, had ever intend --

Justice Abe Fortas: You're talking about that one trick in the case.

Mr. Allain: That's right, Your Honor, if it ever intend that that be taken out of that particular Act.

Mr. Wells, Your Honor, will direct his remarks basically to the cases which are involved.

Thank you.

Chief Justice Earl Warren: Mr. Wells.

Argument of Will S. Wells

Mr. Wells: Mr. Chief Justice and may it please the Court.

The first matter I want to discuss is Number 36, if the Court please, the Whitley case.

This case was originally brought challenging the amendment of the Section involved on two grounds, one, that it was unconstitutional and the other was that it was in violation of Section 5.

The constitutional issue was completely take out of the case in its entirety by stipulation.

I believe Mr. Justice Marshall asked counsel this morning, first, why he took it out and he said that he took it out at that time because we were trying to get a -- for a decision.

The present counsel was not a member of counsel at the time this matter was brought in Court at that time.

I handled it from its conception.

The stipulation was entered into at the request of Williams himself and was actually drawn by plaintiff's counsel at that time.

Mr. Derfner came along after all matters were passed.

We did not, so the only question here, as I see in this case is this.

Does this statute come within the purview of Section 5 of the Voting Rights Act?

It was not submitted to the Attorney General nor was it submitted to the Court of the District of Columbia because we did not feel that it came within the purview of the Act or required to be.

And, the Court might note, in the stipulation which is found on pages 38 and 39 of the appendix in Number 36.

I was willing to stipulate with counsel that the State of Mississippi in enacting House Bill 68, Mississippi laws of 1966, which amended the Section 3260 of Mississippi Code, did not comply with the provisions of 42 USC 1973 (c) which is Title 5.

It has not been submitted to the Attorney General or to the District of Columbia.

This is not to be construed as a concession by the defendants that the State of Mississippi was any -- under any lawful obligation to so comply with the provisions of that Section.

Chief Justice Earl Warren: What page is that?

Mr. Wells: That's on -- at the bottom of page 38 in appendix A of the appendix of Number 36.

In other words, we took that position from the start.

Now, in going --

Chief Justice Earl Warren: Can I ask you, Mr. Wells, what -- how did that affect today this case right at the present time, the fact that you refuse to acknowledge that they should go to the Attorney General?

Mr. Wells: If the Court please, I've taken this issues I go through to explain why I do not think it did.

Chief Justice Earl Warren: You're going to explain it now?

Mr. Wells: Yes, sir.

Chief Justice Earl Warren: I see.

Mr. Wells: In the hearings -- in all the hearings, if the Court please, before Congress, everything was talked about was voting, people's rights to vote, to register to vote.

The only place that I can find, after a complete reading of every -- the congressional records, all of the hearings both in the Senate and in the House, and in the debates on the Floor, and I read them all, the only place we find anything said about candidates running for office as against a person's right to vote for office, which is cited in appellee's brief in Number 36 at pages 10 and 11, we find this and it's found in page 74 of the hearing before the Subcommittee Number 5 of the Committee on Judicial and the House of Representatives of the 89th Congress.

Mr. Corman, he was talking to Mr. Burke Marshall who, at that time, was an Assistant Attorney General and one of the Chief Architects of this very Civil Rights Act which was brought as a matter of common knowledge at the recommendation and at the request of the President of the United States, as he told the Joint Session of Congress.

We find this, Mr. Corman, we have not talked at all about whether we have to be concerned with not only who can vote but who can run for public office, and that has been an issue in so many years in South in 1964.

Had you given any consideration to whether or not this Bill ought to address itself to the qualifications for running for public office as well as the problem of registration?

Mr. Marshall, the problem that the Bill was aimed at was the problem of registration.

Congress -- if there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to deal with in this Bill.

And, nowhere else have I been able to find any sort of discussion that would indicate any other different questions.

Now, Section 3260 which has been amended sets different qualifications for people running for office.

They raise the number of signatures that a candidate has to have on petition running for a statewide office from 1,000 to 10,000 at a time, and in answer to the Chief Justice's questions this morning, when there was an excess of 650,000 registered voters in Mississippi.

It provided further that because it had been invited by the Supreme Court of Mississippi, it has called attention in the Court's opinion in this case at an earlier time where a man had run -- had taken part in a primary election and then run as an independent, and the Court said he had a right to do that as a candidate because there was no statute against it, it would have to be done by legislature.

So, they provided what?

If you vote in a primary election that's going to nominate candidates to run for office, you've got the right to run in that primary if you want to again.

But, if you vote in that primary, then you yourself can't qualify as an independent candidate in the general election.

You're trying to beat the very man that --

Justice William J. Brennan: Well, Mr. Wells, isn't that at least a burden upon one's primary election vote?

Mr. Wells: No, sir.

It's a burden upon a c --

Justice William J. Brennan: I know, isn't -- it says here if you -- you don't have to -- you can vote in a primary election or not but if you vote in a primary election, then you may not stand for office as an independent candidate for any office.

Mr. Wells: At the ensuing elections.

Justice William J. Brennan: Well, now, isn't that at least a qualification upon one's right to vote as freely as he want to -- wishes in a primary election because you'd have to stop and think "I better not vote in this primary election because if I do, now I can't be an independent candidate for office."

Mr. Wells: If the Court please --

Justice William J. Brennan: Well, isn't it, Mr. Wells, to that extent at least?

Mr. Wells: Let's take the rest of the statute, if the Court please, uncoupled with it.

Justice William J. Brennan: Well, I'm only looking at what you have in the stipulation.

Mr. Wells: Alright, sir.

Now, let's take the rest of the statute.

Justice William J. Brennan: Well, just -- would you mind?

In -- so far, isn't that at least on the face of it, a burden on the right to vote in the primary?

Mr. Wells: It's a burden on his individual right to vote.

Justice William J. Brennan: Now, if it is, isn't it then a standard practice of procedure with respect to voting different from that enforced or in effect on November 1, 1964?

Mr. Wells: For that individual?

It would be different if for that individual is concerned, yes, sir.

Justice William J. Brennan: Well, why doesn't that automatically then bring it within the coverage of Section 5?

Mr. Wells: If the Court please, it doesn't prohibit him from voting.

Justice William J. Brennan: I know it doesn't, but I don't read the statute, Mr. Wells, as dealing with prohibitions from voting.

It's only whether or not a given standard practice of procedure with respect to voting is different from the enforced or in effect on November 1, 1964, and I'm just suggesting if there was no such burden on the right to vote in the primary election on November 1, 1964, and it seems to me the new statute imposes a different standard than that in effect on November 1, 1964.

Mr. Wells: If the Court please, I don't think it goes that far.

I think it does -- it affects his right to run for office.

It affects his right to run for office, yes, sir, but not his right to vote.

Justice William J. Brennan: Well, it may be that your legislature intended to affect his right to run for office, but if the device they choose to affect his right to run for office is to burden his vote in a primary election, then I find it hard to see how that doesn't come within the coverage of and the purview of Section 5.

Mr. Wells: If the Court please, I don't view it, in all efforts to Your Honor, in that vein.

I think it has affected his right to run for office, yes, sir, but it hadn't change the standard of his right to vote originally in the primary election.

Chief Justice Earl Warren: Didn't they tell him if you want to, you could vote.

Of course, you've got to give up your position, so that's your problem?

Mr. Wells: If you're going to vote in the primary election and take part, this is not in the record and, if the Court please, might be interesting in one which counsel has drawn to.

I happen to know the reason for part of that which is not in the record and it was trying to keep republicans from getting out the democratic primary support in the weakest man and then running until somebody gets him in the general election.

That was what was happening, and that's actually what brought about the statute.

If the Court is interested, they've had no racial view at all, but that had been happening.

Anyway, deliberately, they said "let's get together.

He's the weakest man in that race and let's for him in the primary and then run somebody against him in the general election."

If they had the chance to beating him, they would.

That's the case.

Justice Abe Fortas: Republicans have constitutional rights, too, don't they?

Mr. Wells: Yes, sir, they do, and I want to say, quite frankly, that I think that this election is going to show they're also a little bit farther than they were.

Now, if the Court please, we go to then -- the other legislative history in this matter.

All through it out, which is set up in our brief, everything the whole colloquy is talking about through this thing is the right to vote, the right to vote, the right to vote, the right to register to vote.

The right to run for office?

No.

That's the distinction that we make as far as this case is concerned.

Now, as to the Bunton ballot case which has to do with the appointing of superintendents of education, I can say to the Court quite frankly and quite honestly that that has given me quite a lot of concern.

Justice William J. Brennan: May I just ask you, Mr. Wells, I take it, to the extent that this problems of reapportionment in any of these cases, Bunton doesn't raise it, does it?

Mr. Wells: No, sir.

Justice William J. Brennan: When you changed from an election to --

Mr. Wells: No, sir.

Here's what Bunton does in this case --

Justice William J. Brennan: But, I mean, when you -- a statute that changes from an election -- elective methods to an appointive method, wouldn't that be an appor -- a reapportionment statute?

Mr. Wells: Not whatsoever.

Here's the situation, if the Court please.

First, I call the Court's attention, in those cases, you haven't got the three counties involved.

Although they allude to 11, you've got only representatives of the class with 3 counties.

Justice William J. Brennan: Of three?

Mr. Wells: Yes, sir.

Justice William J. Brennan: Yes.

Mr. Wells: Leflore, Jefferson, and Holmes.

The pleadings themselves say we have registered voters in Jefferson County who desire to run for Superintended of Education in Jefferson County.

We bring this suit on behalf of ourselves and the class of all other voters and potential candidates in Jefferson County, the other suit says in Claiborne County, the other suit says in Holmes County.

They don't even attempt to represent the class in any counties except those.

Justice Potter Stewart: How many counties are there in Mississippi?

Mr. Wells: I beg your pardon?

Justice Potter Stewart: How many counties are there in Mississippi?

Mr. Wells: In Mississippi?

Justice Potter Stewart: Yes.

Mr. Wells: 82, sir.

Justice Potter Stewart: 82?

Mr. Wells: Yes, sir.

Justice Thurgood Marshall: And how many covered by this statute?

Mr. Wells: How many are covered by this statute?

11, I believe, if the Court please.

I think it's 11.

Justice Thurgood Marshall: Why?

Mr. Wells: Mr. Justice Marshall, I cannot answer that to save my life, except to suggest this.

The statute originally provided where the matter could be presented to a vote of the people to determine where that would be done and if an election was held and they voted that it could be done.

Somebody comes along and doesn't want to go through that to his county and introduces an amendment to amend it and provided that, in my county, it will be automatic and somebody else says "well, I want to get included too," and that's the way those things go.

Justice Thurgood Marshall: Mr. Wells, since you don't know and I don't know and nobody in this room knows, wouldn't it be wise for somebody to find out whether or not it was for reason of race?

I'm not saying it is, but don't you think it'd be worthy of finding it out?

Wouldn't Mississippi be happier, too?

Mr. Wells: If the Court please, if I had been a member of the legislature, I've never voted for it.

If it so happens that the legislature acts very independently of the Attorney General and, quite often, not in conformity with, sometimes, our recommendations.

I frankly must say that it is a closed question.

In my opinion, of course, the constitutionality of that is not involved.

It's a question of whether or not he'd conform to that.

I'm frank to say that if this Court finds that this three-judge Court was promptly convened and had jurisdiction to determine that question in those cases.

It is a closed question in my mind and I cannot, and will not, insist that I think that those -- that statute or those statutes do not come within the purview of Section 5.

Now, I as -- I take a complete honest position with the Court and that case there has given me con -- some concern for these reasons, it takes somebody's right to vote away from him, removes him from the voting right, and I think this.

I think if it were attacked on constitutional grounds as if racing ahead and they had left that in the case before the Court on the basis of the unconstitutional ground or I think that that statute is in violation of Mississippi's own law.

I think it's local and private legislation attempted to have been enacted under a general statute and I think if it were attacked in the Mississippi Courts, it would be stricken down in the State Courts.

I think they had a complete bran -- an actual remedy.

They go right into State Court and the Courts would've held it -- would've stricken down on the grounds that it's local and private legislation attempted to be enacted as a general statute right in the face of the constitution.

Justice Potter Stewart: Of course that -- that may well be, but that really is entirely irrelevant to the issue here before this Court, isn't it?

Mr. Wells: It's entirely irrelevant to the issue in this Court and if the Court please and I'm saying to this Court, quite frankly and quite honestly, that it is a much closer question as to whether it comes under the Section 5 --

Justice Potter Stewart: Section 5.

Mr. Wells: In my opinion, that either the Whitley case or the other, and I am not going to say to this Court and urge this Court to say that I take the absolute position that it does.

It's in the area there.

I do think that, in the Whitley case that, that Section has to do with candidates, what else about candidates, and I do not believe it is within the purview of Section 5, honest about -- I'm very frank about that.

And, if the Court please, I -- unless there are some questions that the Court wants, I think the rest of the matter has been covered.

Chief Justice Earl Warren: Very well.

Mr. Derfner.

Rebuttal of Armand Derfner

Mr. Derfner: May it please the Court.

The position of all the appellants on the question of relief is as follows.

We believe that Section 5 imposed an additional requirement for putting into effect a state statute within its coverage that, in the absence of fulfilling that requirement, the statute was not in effect and it was as if no statute had been passed.

Therefore, we believe that, since the statutes in these cases have been void and are now void, that we are entitled to new elections that are retrospective relief as well as prospective relief the day this Court reverses the judgments below.

At that point, the proper relief would be for the Court to remand to the Court below for new elections.

We don't think it's the job of this Court or the Court below to tell the state what to do about whom to submit the statute to, about whether to submit the statute at all, or about what to do if it wishes to put the statute into effect.

If the state wishes to submit the statute to somebody and come back to the Court below before such time as is fixed promptly for holding a new election, then that Court might, within the exercise of its equitable discretion, decide to, if there were a favorable determination, favorable to the state, might decide not to hold the new election.

But, we think that the state -- the Court below should proceed expeditiously to hold new elections, that those new elections should be held and --

Justice Byron R. White: Do you think there's any analogy, as you know, in many reapportionment cases where the Court has thought that there was malapportionment that an election was coming up.

The Court has sanctioned the conduct of the election, although under a malapportioned system because of the difficulty of getting things corrected before the election came along.

We did that, didn't we, in several cases?

Mr. Derfner: Yes.

Justice Byron R. White: Don't you suppose there's something -- here, you have situations which are now passed.

Mr. Derfner: Yes, but at the time these cases were brought, in each case, the proper thing for the Court below to have done and the convenient thing in all cases would've been to grasp the --

Justice Byron R. White: Yes, but the Court dist it.

The Court didn't -- we're faced with a fact, not a theory as to saying --

Mr. Derfner: That's right.

Justice Byron R. White: I'm just wondering over my question to you was, don't you see any analogy at all, Mr. Derfner, in what we've done in the reapportionment cases?

Mr. Derfner: Yes, I do, but I think that, as Hamer against Campbell, a Fifth Circuit case, says, one of the considerations in exercising the equity jurisdiction of a Court is how difficult it would have been at that time, how disruptive it is now.

And, we think it is quite within the equity jurisdiction of this Court and the Court below, and would be the proper remedy to order to go back to the situation as it stood at that time.

Otherwise, we think the rights are --

Justice Byron R. White: You think we should do that and we should order the District Court to restore the status quo as quickly as can be, is that --

Mr. Derfner: Yes, we do.

Justice Byron R. White: Which, necessarily involves, I suppose, the ousting of the present encumbrance and new elections under the old laws, is it not?

Mr. Derfner: That's right.

Chief Justice Earl Warren: Don't you think, Mr. Derfner, that it's hard to be pleased that there is less reason for doing that in this case than in the reapportionment cases for several reasons, that in the reapportionment cases, we held that the apportionment was unconstitutional, yet we gave them the chance to direct it.

In this case, where all this is asking is to submit the procedure, to be submitted to the Attorney General without regard to whether it is unconstitutional or not, that it might be better judgment to make a Fairley prospective in this case and, because the Attorney General might say "no, that's -- this is alright, there's no constitutional infirmity here and, therefore, the election is alright."

Mr. Derfner: I think, Mr. Chief Justice, we have to look at what the statute was meant to do.

The submission to the District Court for the District of Columbia or to the Attorney General was not regarded as a formalistic matter.

It was regarded as something of --

Chief Justice Earl Warren: Not regarded as what?

Mr. Derfner: Not regarded as a formalistic matter.

It was regarded to something --

Chief Justice Earl Warren: Didn't it say that?

I didn't notice.

Mr. Derfner: No, it was regarded to something of great substance.

It was regarded as a way of making certain that this statute has -- had, as close as possible to automatic effect, as we said in South Carolina versus Katzenbach.

It doesn't seem to me that Congress, in seeking to pass, an -- as automatic as possible, a trigger statute, would've meant to allow these rights to be delayed for so long.

I might say -- what I was trying to say before in connection with the lower Court's equity jurisdiction is that the -- if the Court orders new elections, I should think that if the state in the interim were to go to the Attorney General and get a favorable determination before those new elections took place, it would be well within the equitable jurisdiction of the Court below to set aside the order for new elections.

All I'm saying is that the Court's procedure should go on and not -- and whatever can be done by the state within such seasonable time as exists before the election which, almost certainly, would include time to get a favorable response if one were forthcoming from the Attorney General, could be effective.

But, I don't think that the Court should wait until the state has a chance to seek a declaratory judgment in the District of Columbia then appeal that to this Court.

By that time, what we've had is close to the five years of the operation of the statute, eaten up by the state's recalcitrance, and I don't think that's what Congress intended.

Chief Justice Earl Warren: Well, is it your position then that if we follow you, that we remand this case and require the matter to be submitted to the Attorney General, you're going to call for elections?

Mr. Derfner: No, Your Honor, I believe this Court's proper order should call -- should direct the Court below to call for new elections.

What the state wishes to do in the way of submission or to whom it wishes to submit is up to the state.

If the state wishes to submit, it may do so.

If it gets an answer back in time before the election and it certainly would have time to, that's fine.

If the state does not wish to submit and it might decide, for example in the Bunton case, that it doesn't wish to submit, then it's not up to this Court or the Court below to tell -- to suggest to the state what it should do to put -- to comply with its obligations under Section 5.

Justice Thurgood Marshall: Well, it's a c --

Chief Justice Earl Warren: If we order the elections and the Attorney General approved the statutes, then they'd be frustrating the mandate, don't you think?

Mr. Derfner: No, because I think, in that event, if the Court below decided that, in its equitable discretion, that the approval, even at this late date, indicated that the state's error was, in effect, harmless, I think that would be quite consistent with this Court's mandate because it would say that this great duty of the state, this not merely formalistic duty, though it had not been done before, had been done now in a way that showed that the statute was proper and could be put into effect.

What we're talking about -- in a sense, some of these things don't fit tightly into logical boxes, but we think they were talking about the most practical way of solving the statute and petition the rights --

Justice Abe Fortas: May I ask you if there's another way of getting at it that a possible directive might be that, unless the state chooses to submit the matter to the Attorney General or the United States District Court for the District of Columbia and unless, after such submission, a favorable response is given to the state by the Attorney General or the Courts, then, in that event, the District Court shall order new election.

Mr. Derfner: The problem was --

Justice Abe Fortas: Is down to?

Mr. Derfner: No, Justice Fortas.

Justice Abe Fortas: No?

Mr. Derfner: Not quite, because we're willing to do that in connection with the Attorney General, submission to the Attorney General, because, as a practical matter, there'd be a chance -- there'd be time to get a response from the Attorney General before any new election were held, and we're willing to do that because we don't believe that would hold anything up.

We're not willing, though, to agree that that relief should be held up until a submission to the --

Justice Abe Fortas: Well, I know, but you're raising questions to whether we should, in effect, as a penalty for what arguably is a state action here, compel the state to go to the Attorney General rather than to pursue what is a statutory alternative, namely to go to the District Court for the District of Columbia.

Mr. Derfner: We think the baseline, Justice Fortas, is that the state is not entitled to put the statute in effect, that the statech ha -- state had no statute until such time as it complied.

We think that a Court has equitable discretion to essentially give the state more than it's entitled to, but not where that might result in frustrating appellant's rights for an additional year or two.