GEORGIA v. UNITED STATES

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Argument of Wallace

Chief Justice Warren E. Burger: -- arguments, in case we closed on yesterday.

I believe Mr. Wallace were you at the lectern?

Mr. Wallace: Yes sir.

Chief Justice Warren E. Burger: And you have a few minutes remaining.

Justice Thurgood Marshall: Before you get started, I?m still up in the air about the 60-day, I mean failure to comply within the 60-day, can you help me?

Mr. Wallace: Well that relates to the submission of now repealed 1971 plan.

This Court?s own experience in dealing with the complexities of the matters such as racial discrimination and reapportionments surely instructs that if the Act is meaningfully to be applied, the necessary information must be submitted to the reviewing authority so that he can make a meaningful determination of whether the implementation of the proposed change would have the prohibited effect.

Justice Thurgood Marshall: The time starts when the information is in?

Mr. Wallace: Well, that is the position that the Attorney General came to in the guidelines which were adopted after publication in the federal register in commentary and then were adopted and are now in the Code of Federal Regulations.

Those guidelines interpreted the word submission in the Act and in the submission of all of the information that is needed in order for a determination to be made.

And when less than that information is initially submitted, the Attorney General specifies within 60-days of the initial submission what additional is needed.

And after all the information that is needed to make a meaningful determination is submitted, then within 60 days of what constitutes a submission within the meaning of the Act, the Attorney General acts.

Justice Potter Stewart: And who is to decide that whether there has been a sufficient submission?

Is that entirely on the Attorney General?s unreviewable discretion?

If so, he could just string this thing along forever and while the statute review requires him to object within 60 days.

Mr. Wallace: Well that -- there is a judicial review of any action taken and it?s always open to the State.

Justice Potter Stewart: Where, where under the statute is there judicially review?

Mr. Wallace: In the District Court for the District of Columbia --

Justice Potter Stewart: That is an alternative, isn?t it?

Mr. Wallace: -- a general proceeding.

Justice Potter Stewart: That?s an alternative.

Mr. Wallace: But that is correct.

That alternative is open to the State before or after the Attorney General has interposed any objection.

Justice Potter Stewart: Well, here he hasn?t.

The point is he just could.

As I understand your theory, you could just say I am sorry I don?t have enough information, give me some more.

Mr. Wallace: Well, he satisfies (Voice Overlap).

Justice Potter Stewart: I am sorry, that is not sufficient, give me some more and he could string it on forever.

Mr. Wallace: He specifies what?s needed and the regulations themselves, the guidelines specify what is needed and this just hasn?t occurred that there have been successive requests for additional information.

Here, there was no problem of that kind at all.

The State did submit the additional information after one request for it.

And that additional information was adequate for a determination to be made with respect to all three of the State?s plans and the determination was promptly made thereafter.

Justice Potter Stewart: What the statute requires is a submission of the -- as the statute says, qualification, prerequisites, standard practice or procedure, not a lot of explanatory material.

Isn?t that up to the justice department within 60-days after that submission required by that statute to object and if it hasn?t been objected then it becomes the law of the State.

That is what the statute contemplates, isn?t it?

Mr. Wallace: One way to look at the request for additional information is an objection that the State has not met its burden of proof on the basis of the information submitted and that alternative would be open as counsel for the State said in the District Court here, if the State would win on this issue it would be a phyrric victory, he said, because it would be open to the Attorney General when insufficient information for him to say that it was acceptable was submitted to him is simply to say he objects, until a new submission containing more information is forthcoming.

Justice Byron R. White: But that is only on the assumption that it?s a method that the Attorney General to say I object, that?s another issue in the case because your position states the statute is presumptively unconstitutional or invalid unless the State carries the burden of proving that it?s valid.

Mr. Wallace: Well, that was -- that was the basic purpose of the Act that the State was to have the burden of proof.

Justice Byron R. White: (Voice Overlap) this is -- you would have taken the Attorney General to the Court and I?m not so sure that that was whether a State necessarily has to march up to the executive branch of the federal Government to prove its (Voice Overlap)

Mr. Wallace: Well, the Act does not require the State to make a submission to the executive branch of the Government.

That alternative was put in as an accommodation to the States if they would prefer that to go into the District Court for the District of Columbia which is open to them before or after they make their submission to the Attorney General if that?s what they choose to do.

But the basic purpose of the Act was to say that in those States, covered by the Act where there has been presumably discrimination in the past, this heavy burden reflected in decision such as Whitcomb against Chavis in this Court, a heavy burden of complainants to litigate under the Fifteen Amendment will be shifted to the State if a change in the State laws is made.

The House report is very specific on that subject in referring to the Allen decision.

It says, the Court there discussed the history of the enforcement of Section 5 and clarified its scope.

The decision underscores the advantage Section 5 produces in placing the burden of proof on a covered jurisdiction to show that the new voting law or procedure does not have the purpose and will not have the effect of discriminating on the basis of race or color.

Now, that basic purpose of the Act would be entirely emasculated if the alternative were open to the State to make the submission to the Attorney General do not have to bear that burden of proof.

Chief Justice Warren E. Burger: Well, what specific --

Mr. Wallace: It will completely get around the basic objective of the Act.

Chief Justice Warren E. Burger: What specific provision of the Act, in your view, puts this burden on the states, in terms?

Mr. Wallace: They -- well, let?s look at the Act?s provision.

I think the legislative history makes it very clear --

Chief Justice Warren E. Burger: Well, I?m just thinking about the Act.

If the Act is clear we don?t need to look at the legislative history or if the Act does -- is silent, perhaps we don?t.

Mr. Wallace: Well, the Section 5 is set forth on page 50 of the brief for the appellants and it says that -- reading along just below the middle of the page, such State or subdivision may institute an action in the United States District Court of the District of Columbia for a declaratory judgment.

It sets qualification prerequisite standard procedure does not have the purpose and will not have the effect of denying or abridging the right to vote.

And unless and until the Court enters such judgment, no person shall be denied the vote, the right to vote because of not having complied with that and a party seeking a declaratory judgment would ordinarily carry the burden of proof that he is entitled to the declaratory judgment.

A judgment that it does not have the purpose and will not have the effect and then the alternative procedure that?s open to the state is to submit it to the Attorney General and if he does not interpose an objection, then the State can put it into effect without getting the declaratory judgment.

Chief Justice Warren E. Burger: Now, is this provision that you?re talking about equally applicable to the attorney -- procedure before the Attorney General and to the proceeding in the District Court?

Is the burden the same way in each instance in your view?

Mr. Wallace: Well, it doesn?t specify.

The proviso doesn?t specify anything about the burden of the alternative.

It is accepted that it be submitted to the Attorney General and the Attorney General doesn?t object, but it doesn?t specify any standards at all that the Attorney General must adhere to in order to object.

So far, on the face of statute, the Attorney General has complete discretion to interpose an objection and then, (Voice Overlap) it gives --

Chief Justice Warren E. Burger: If Congress was explicit on the burden with respect to the District Court or certainly considerably more explicit with the ordinary rule of construction when it was silent with respect to the Attorney General?

Mr. Wallace: It says that if the Attorney General is free to interpose an objection on any basis he pleases, so far as the statute is concerned.

And if he interposes an objection then the State can go to the District Court for the District of Columbia.

The statute specifies no standard at all that the Attorney General must adhere to.

Justice Potter Stewart: Does anything in our opinions in Allen or Perkins or any other had to say anything about the burden of proof on this submission to the Attorney General?

Mr. Wallace: They did emphasize the importance of the shifting of the burden of proof as the basic purpose of the Act, that is why pre-implementation review was required and those opinions (Voice Overlap)

Justice Potter Stewart: On the submission to the Attorney General?

Mr. Wallace: But those opinions didn?t deal specifically with submission to the Attorney General.

That?s what they didn?t involve, the submission to the Attorney General.

But it is difficult for us to see how if the State doesn?t have the burden of proof on such a submission, the purpose of the Act can be accomplished.

The fact is that states have almost invariably made their submissions to the Attorney General.

There have been 381 submissions to the Attorney General and so far as we can recollect, only three suits brought in the District Court for the District of Columbia, two of those after the Attorney General interposed objection.

Justice Potter Stewart: Well, maybe the reason was that the states thought that they had a lower burden of proof when they were submitting it to the Attorney General?

Mr. Wallace: Well, the Attorney General specified otherwise in published guidelines.

Justice Potter Stewart: How long ago?

Mr. Wallace: Those were published in 1970.

Justice Potter Stewart: After the enactment of the -- after the present amendments to the legislation and after our approach?

Mr. Wallace: That is correct, Mr. Justice.

Chief Justice Warren E. Burger: What does that do to the, what was in ancient times of general understanding that the legislative Act of a State had a certain presumptive validity?

This pretty well under cuts it, doesn?t it?

Mr. Wallace: Well, this was the basic controversy about the enactment of the law in 1965 and its reenactment in 1970 and the opponents of Section 5 said that it was not a good idea for Congress to take away the presumption of validity of State acts and to single out certain areas of the country where the Act would apply.

And majority in Congress took the other view that because of the background of racial discrimination in the administration of voting and in State election laws there would be areas where the presumption would be against the validity of new election laws until the State has met a burden of proof that the change will not have the purpose or effect of causing racial discrimination.

Chief Justice Warren E. Burger: But you have already indicated that, that was true with respect to the proceedings in the District Court of the District of Columbia, but it?s virtually standardless with respect to the procedure before the Attorney General, isn?t it?

Mr. Wallace: Well the Act specifies no standard, but the basic controversy in Congress was about whether this presumption of validity would be taken away in the covered states.

And in the 1970 reenactment in particular, the position of the administration and the administration?s proposal is that this presumption of validity should be restored and Section 5 should not be extended and the entire country should be treated the same.

And Congress refused to accept that view after much controversy and the President decided to sign the measure into law and accepted Congress? point of view.

Chief Justice Warren E. Burger: Would you agree that sometimes this Court has taken a rather dim view of the standardless discretion committed to administrative processes?

Mr. Wallace: Well, I -- of course it has, Your Honor, but I believe that was in situations where there was some finality, some dispositive nature to the exercise of that discretion.

Chief Justice Warren E. Burger: Well, isn?t it pretty final when the Attorney General --

Mr. Wallace: Well, it?s open to the State to bring a completely de novo proceeding in the District Court for the District of Columbia and make its case under this (Voice Overlap).

Chief Justice Warren E. Burger: Against the background of the Attorney General?s disapproval?

Mr. Wallace: The Attorney General hasn?t specified anything except that he wasn?t persuaded that it wouldn?t have that purpose or effect, and that the action in the District Court for the District of Columbia is not a review of the validity of his determination or of whether that determination had a rational basis.

It?s a completely de novo proceeding.

Chief Justice Warren E. Burger: Mr. Wallace, we?ve taken up quite a bit of your time since you got here this morning and maybe you had something on your mind when you got here, so we will give you a little time to tell us about that.

Mr. Wallace: Thank you, Your Honor.

Justice Harry A. Blackmun: Mr. Wallace before you do, I have a question too (Laughter) I?ve been waiting to ask.

Is it your position -- well we have in Georgia a number of districts and is it your position that even if no change is made by the State in a particular district, that the Attorney General can still disapprove that district if changes are made in other districts of the State?

Mr. Wallace: Well, we took that position in the District Court and we adhere to it in the context of the pervasive reapportionment that was enacted here.

The prior apportionment was repealed and the State reconsidered every district and drew new district lines and reapportioned every one.

As a matter of fact, the changes were very pervasive here.

Most districts had new boundary lines under both the 1971 and 1972 plans and many of those who did not have new boundary lines had a different number of representatives.

And there was really a change even in the few districts that had the same boundary lines, the same number of representatives because they were sending those representatives to a State House of Representatives which would have 25 fewer total members.

So, on the facts of this case, it can really be said that there is no district which remained unaffected by the reapportionment legislation and we did take the position that the entire reapportionment was up for review.

Now, as I understand the position of the State, they say yes, there were changes that were subject to review under Section 5, but that the Attorney General?s objection is invalid because what he objects to is an aspect that really wasn?t changed, and we have two answers to that.

In the first place, as we understand it, that?s a contention that the objection is not well-founded.

That the objection is lacking in merit and under Allen and Perkins, Congress has specified that that question can be litigated only in the District Court for the District of Columbia.

That is the contention that goes to the merits and not to rather -- there was a change which had to be submitted here, but we believe that the objection is well-founded.

We see no way to administer the Act other than to consider the implementation, the effects of the implementation of the change and the context in which they will be used.

The Act says that if implementation of that change will have the purpose or effect of denying or abridging the right to vote on account of race, then that change should not be implemented.

It doesn?t say that it has to deny or abridge the right to vote more than it has previously been denied or abridged.

And in South Carolina against Katzenbach, the Court, I think very carefully specified that the pre-implementation review was required by Congress, so that changes in the election laws could not be used to perpetuate.

The word used there was ?perpetuation,? to perpetuate the discrimination on account of race in voting in elections.

And so while we believe that the matter is not really before this Court, we think the objection was well-founded here.

Unless there is no further question, I think that presents our case.

Chief Justice Warren E. Burger: Thank you, Mr. Wallace.

Mr. Hill, you have about nine minutes now.

Argument of Harold N. Hill, Jr.

Mr. Harold N. Hill, Jr.: Mr. Chief Justice and may it please the Court.

I am somewhat at a loss for words to learn that the United States takes a position that they can sue the State of Georgia in the Federal District Court in the State of Georgia and one of our defenses can only be raised in the District Court for the District of Columbia.

I would have thought that when they sued us, we would be entitled to all available defenses and would not be required to raise any of those defenses in a forum other than the one that the United States had chosen.

Justice Byron R. White: Didn?t Allen deal with that in our (Inaudible)

Mr. Harold N. Hill, Jr.: Allen dealt with a situation where a citizen is suing for a declaration or a determination --

Justice Byron R. White: But you never get to the merits of the law where there has been no submission?

Mr. Harold N. Hill, Jr.: There has been a submission here, may it please the Court and the question is the validity of the objection or when it was turned down.

Those factors were not present in Allen and in Perkins, because there had been no submission, no objection by the Attorney General.

In the reapportionment context --

Justice Byron R. White: So, your suggestion is that in this case you should be allowed to do what?

Mr. Harold N. Hill, Jr.: To raise the defense that the objection was invalid, that the Attorney General objected to things which had not changed.

In a reapportionment context, the District Court for the District of Columbia is not really a viable alternative for this reason.

As I understand it, the United States would have 60 days in which to answer the complaint or a complaint for declaratory judgment filed in the DC District Court and then it might take a considerable period of time for the District Court to make a determination and the District Court for the District of Columbia would not be able to formulate a plan, would not be able to permit the holding of elections in the meantime and therefore is just not the good way for a State to go to submit its reapportionment plans for the District Court of the District of Columbia because of the time involved and the lack of remedial power that that Court would have.

Chief Justice Warren E. Burger: There is no power under the statute, Are you saying, no power in the District Court to, in effect, stay the negative action of the Attorney General?

Mr. Harold N. Hill, Jr.: It would, perhaps a suit not under the Act, but a suit for injunction or something of that type by the --

Chief Justice Warren E. Burger: What I mean is under the Act?

Mr. Harold N. Hill, Jr.: But if it was under the Act, I think that the only issue before the District Court of the District of Columbia would be whether or not the change had the purpose or effect of racial voting discrimination.

It has been suggested that the 1972 plan repealed the 1971 plan and that now the question of timeliness is moot, but the 1972 plan was disapproved.

It is not in effect, the Repealer Clause contained in the 1972 plan is not in effect.

So, if the 1972 plan is not in effect, the 1971 plan is, and we think that the case is not moot or the question is not moot.

Now, I?d like to refer to just one other matter and that is the Allen decision.

The Court is of course familiar with the several lines in Allen dealing with reapportionment.

I would like to complete the last portion of the Senate?s read to the Court yesterday.

The Court there said, ?We leave to another case a consideration of any possible conflict, therefore I submit? --

Justice Byron R. White: What page is that?

Mr. Harold N. Hill, Jr.: On Allen, it?s at page 569.

I submit that if Congress did adopt Allen when it was considering the 1972 amendments, that Congress did not adopt anything that this Court had not yet decided and that they clearly, the Court left some matters at least with respect to reapportionment undecided in Allen and that Congress has not adopted those undecided maps.

Chief Justice Warren E. Burger: Thank you, Mr. Hill.

Thank you, Mr. Wallace.

The case is submitted.