DOUGHERTY COUNTY BOARD OF EDUCATION v. WHITE

This case comes to this case from a three-judge District Court in the Middle District of Georgia and involves a claim that a statement, what we submit personnel rule of the Dougherty County Board of Education was not adopted in conformity with the Voting Rights Act of 1965, and therefore, was illegally applied to John White, the plaintiff in the case below.

Now, the Voting Rights Act of 1965 were designed, as this Court knows, to eliminate racial discrimination in voting which had been practiced principally in some southern states.

So far as we believe is material to this case before this Court, Section 5 of that Act provides substantially that whenever a state or political subdivision shall enact or seek to administer any voting qualification or prerequisite to voting which are standard practice or procedure with respect to voting different from that in force and effect on November 1, 1964, such change shall not be utilized or implemented until either a judicial determination has been secured in the United States District Court for the District of Columbia, that the change does not have the purpose or effect of denying the right to vote on account of race or such change had been submitted to the Attorney General of the United States and he has interposed no objection thereto within 60 days.

We think the material that has defined in the Act, the term political subdivision means any county or parish, except that where registration for the voting is not conducted under the supervision of a county or parish, the terms shall include any other subdivision of a state which conducts registration for voting.

In May of 1972, John White, a 12-month or a year employee on the Dougherty County Board of Education made known to the Board of Education, his intention on to offer for and qualify for election to the Georgia House of Representatives.

The Dougherty County Board of Education had no policy in connection with its employees entering the political arena and continuing in their employment.

Rule 58 was therefore adopted by the Dougherty County Board of Education and it provided substantially that any employee who became a candidate for elective political office would be required to take a leave of absence without pay, effective upon qualifying for election to such office, continuing for the duration of the candidacy and during the period of service if elected.

Justice Potter Stewart: When was this rule adopted chronologically, vis-à-vis the Board's becoming aware that Mr. White's was intending to becoming a candidate?

Mr. Walters: Mr. Justice Stewart, chronologically, Mr. White made known his intention to qualify or to run for the Georgia House of Representative.

Thereafter, the Board of Education adopted Rule 58 and thereafter --

Justice Potter Stewart: Immediately thereafter, was the rule adopted?

Mr. Walters: Sir?

Justice Potter Stewart: Was the rule adopted immediately thereafter?

Mr. Walters: Within a very short period of time, yes, Your Honor and after the adoption of the rule, Mr. White then did in fact qualify for election.

Chief Justice Warren E. Burger: Had they ever had any experience of this kind before that employees may run?

Mr. Walters: To my knowledge, Mr. Chief Justice, or the members of the Board at that time, no employee had ever run for public office or qualified to run for public office prior to this time.

Now, this rule was not submitted or cleared through the District Court of the District of Columbia or through the Attorney General simply and concisely because it was not felt that it was a rule that would fall within the provisions of the Voting Rights Act of 1965.

Shortly after the adoption of Rule 58, Mr. White qualified for election to the Georgia House of Representatives.

He was granted a leave of absence, was unsuccessful in a Democratic primary held in August of 1962 and was promptly thereafter returned to a duty status with pay.

Two years later, Mr. White again qualified for election to the Georgia House of Representatives.

He again was granted a leave of absence without pay, this time, Mr. White was successful, he was successful in the a Democratic primary in August, was successful in the general election in November and was returning to a duty status in December, on the 1st of December of 1974.

Justice Potter Stewart: Although the --

Justice Harry A. Blackmun: The duty status, while he was serving in the legislature?

Mr. Walters: Mr. Justice Blackmun, I do not believe anyway in the record that this is made explicitly clear.

I will state for the Court that Mr. White was on a leave of absence without pay during the time that he actually was serving in the legislature.

The rule as originally written provided that he would be granted a leave of absence without pay during the time to which elected or after election, he came before the Board.

The Board modified, this is not the record, I hasten to say, the Board modified the rule so as to not to make it effective for the entire two years but just during the time that he was away in the legislature.

Mr. White again, in 1976 qualified for re-election to the Georgia House of Representatives.

He again was granted a leave of absence upon qualification, and shortly thereafter, this suit was instituted by Mr. White seeking among other things to have Rule 58 declared in violation of the Voting Rights of 1965 with the view of compelling the Board to reimburse him for the pay that he had contended as he lost while on leave of absence.

A three-judge court was convened, both parties filed motion for partially summary judgment and this three-judge court hearing the matter on record and briefs, held that Rule 58, was in fact covered by the Voting Rights Act -- of Section 5 of the Voting Rights Act of 1965, and it is this decision that brings this Court -- the case to this Court.

We submit that two questions are submitted to this Court by the Dougherty County Board of Education.

First, is the Dougherty County Board of Education, a political subdivision, as defined in the Act or as established under the decisions of this Court, so as to be covered under the Section 5 of the Act?

Second, is Rule 58, a voting qualification or prerequisite to voting,a standard practice of procedure with respect to voting?

It is necessary that both of these questions be answered in the affirmative in order for the decision of the District Court to be correct and it is submitted that the answer to both is in the negative.

With respect to the first question, a political subdivision is defined in the Act as “any county or parish except that where registration for voting is not conducted under the supervision of a county or parish the term shall include any other subdivision of a state which conducts registration for voting.”

Dougherty County Board of Education is not a county or a parish nor Dougherty conducts registration for voting and clearly it does not fit the definition of a political subdivision as that term is defined in the Act.

Now, admittedly the Act applies specifically to the State of Georgia, but this does not mean, we submit, that it automatically applies to the Dougherty County Board of Education even though that Board is a public body or a public or a political subdivision, not under the terms of that we say but it is known as a political subdivision.

Dougherty County Board of Education is a creature or political subdivision on state.

It is charged with the responsibility and duty of operating the public schools of Dougherty County, nothing more and nothing less.

Justice Thurgood Marshall: It's charged with running the schools under the state and under the laws of the state, am I correct?

Mr. Walters: Yes Your Honor, that is absolutely correct.

Justice Thurgood Marshall: And pursuant to the laws of the state and the state superintendent of schools?

Mr. Walters: I -- it's certainly charged with the responsibility under the laws of the state, Mr. Justice Marshall, but I doubt very seriously that the pronouncement of the state school superintendent have the effect of laws on the Board of Education of Dougherty County Georgia.

So, in the other --

Justice Thurgood Marshall: So, he is running under the state law?

Mr. Walters: Yes sir.

It has --

Justice John Paul Stevens: Mr. Walters, what about the case involved in the City of Sheffield?

Mr. Walters: I think I'm going to come to that in just a moment.

Justice John Paul Stevens: See, everything that you've said so far applies equally to that?

Mr. Walters: Yes.

I understand that, Mr. Justice Stevens, and with your permission, I will -- Dougherty County Board of Education had no responsibilities or duties in connection with elections, it cannot change the location of a polling place or adopt at large systems of election, provide for the appointment of previously elected officials.

As a matter fact, the members of the Dougherty County Board of Education are appointed officials and any change in the method of election, must come from the State of Georgia.

The Board cannot enact laws regulating candidacy, voting procedures, annexations, reapportionments, redistricting, or otherwise legislate with respect to any feature of the electoral processes.

Congress did not intend for the Voting Rights Act to apply to a political subdivision that had absolutely no function in relation to voting in elections.

Every decision that I've been able to find, involving the Voting Rights Act of 1965, involves a political anarchy that had powers and responsibilities with elections, with respect to the election processes.

There must be this, we say and submit to this Court, for the Voting Rights Act to apply to apply to a political subdivision and this must be real responsibility, real duties, real powers, not imaginary or fanciful.

Now, the case of United States versus Board of Commissioners of Sheffield, Alabama does in fact hold that a political subdivision does not have to register voters to become a covered political subdivision under Section 5.

We submit though that it is essential to the understanding of Sheffield to look closely at its factual situation.

The City of Sheffield, Alabama on November 1, 1964 was governed by three commissioners, elected by the city at large.

Sometimes during the year 1975, Sheffield determined to submit a referendum to the people of the city to see if they desired to change the form of Government to a mayor-council form consisting of a Mayor and eight councilmen, the eight councilmen elected at large.

Now, bear in mind here that the City of Sheffield had the complete responsibility, the complete power in connection with this election even though they did not register voters.

The City of Sheffield, the referendum was submitted, was passed and the City of the Sheffield called an election to implement the new form of Government and to elect the new officials.

The United States filed a suit contending that this was a change which should have been either cleared through the District Court of Columbia or the Attorney General of the United States and asking an injunction.

A three-judge court, dismissed the proceeding, finding unanimously that the City of Sheffield was not a political subdivision as defined in the Act.

Chief Justice Warren E. Burger: We'll resume there at 10:00 in the morning counsel.

Mr. Walters: Thank you.

Print this transcript Transcript:

Argument of Jesse W. Walters

Chief Justice Warren E. Burger: We'll resume arguments now in pending case, Mr. Walters, you may proceed.

Mr. Walters: I believe that when we recessed on yesterday afternoon, I was discussing with the Court the Sheffield Case that arose in Sheffield, Alabama.

I believe that I had justified the Court that a three-judge District Court had unanimously ruled that the City of Sheffield did not fall within the definition of a political subdivision as defined in the Voting Rights Act.

And this Court, in a split decision reversed the District Court and as I read and understand the majority opinion, this Court is holding in effect that any political entity that has power over some aspect or any aspect of the electoral processes within a designated jurisdiction is covered by the Act.

Now, I really don't know that I have any real basic quarrel with the decision of this Court, but I do say that it becomes necessary to review the Dougherty County Board of Education under the decision in Sheffield and inquire as to whether or not the Dougherty County Board of Education does in fact have any power over any aspect of the electoral process in Dougherty County, Georgia.

It is submitted that the answer to this inquiry is in the negative.

There are many political subdivisions in the State of Georgia that have no control, no power, nothing to do with the electoral processes, and we say that the Dougherty County Board of Education is one of these.And others would be hospital authorities, payroll development authorities, county boards of health and the like.

None of whom have any function whatsoever in connection with the political processes.

In the absence of control or power over the electoral process, neither the Dougherty County Board of Education or any other entity which has no responsibility or control, respecting election is, we submit, required to seek the approval of federal authority on a purely and simply personnel matter.

Justice Byron R. White: What if the state legislature passed a law that said that all employers must give an hour off for elections?

Mr. Walters: The state legislature passed such a law, Mr. Justice --

Justice Byron R. White: Would it have to be (Voice Overlap).

Mr. Walters: -- White.

Yes sir, because the state has the power over the electoral process.

Justice Byron R. White: Well then what if the legislature delegated the decision with respect to that to a school board?

Mr. Walters: I would say, Mr. Justice White, that if the legislature delegated that decision to the Board, then the Board would have power over the electoral process.

Justice Byron R. White: Alright, well then, what if there was no state law about it.

It just happened to be but a school board, an individual school board, did pass a rule limiting or someway bearing on how much time people get off to go to the polls and it was challenged then the state -- and then the state court said the school board has that power under the state law?

Mr. Walters: If the state law gave to the school board such power over the electoral process, under the Sheffield decision, I would say that the board would be a covered subdivision.

Justice Byron R. White: Well, would you say -- is there much different impact if the board then, within its powers, passed a resolution that said that any teacher who declares himself for public office must resign?

Mr. Walters: Yes, I think it is, Mr. Justice White.

Simply and concisely, maybe such school official or school employee would have some other course of action but I do not believe so under the Voting Rights Act of 1965 because I'll go back to the question that I do not believe, under the laws of the State of --

Justice Byron R. White: Could you certainly -- you maybe quite right, but even so, it's hard to deny that the Board's rule would have an impact on who's going to run for office and who isn't.

Mr. Walters: Well, of course, Mr. Justice White, in response to that, I would have --

Justice Byron R. White: Maybe that isn't the test under the Section 5, but it does have the impact.

Mr. Walters: I would have to say that I know of no guaranteed federal right or state right that said a man in entitled to a position with the Board of Education.

Justice Byron R. White: What if the state -- what if the state legislature passed the same rule and says, No public employee may run for office?

Mr. Walters: I would say that the state being a covered subdivision under the Act and specifically under Section 4 (b) of the Act and under the Attorney General's designation of the State of Georgia as being covered by the Act --

Justice Byron R. White: And then what if the legislature delegated that part to a school board and said, but in the case of school boards, we'll leave it up to the individual school boards?

Mr. Walters: And then I think if the State of Georgia did that and delegated that power to the school boards, then the school board would be exercising control over some part of the electoral process.

Justice Byron R. White: Well then, but suppose the legislature doesn't pass such a law, but it's determined by a Court that the school board does have that power under the state law?

Mr. Walters: Well, of course, Mr. Justice White, I think in response to that inquiry that the question would arise as to whether or not under the laws of the State of Georgia, and frankly and truthfully, I do not believe that there's any law in the State of Georgia that gives to the Dougherty County Board of Education or any other Board of Education any control over any aspect --

Justice Byron R. White: Well, what if it were -- what if it's determined by a state court that the Board has that power?

Mr. Walters: I would certainly say that in response to that that it may be but this suit was brought and --

Justice Byron R. White: Then we can't keenly decide the case.

If they have the power under the state law, would you concede that it's covered by Section 5?

Mr. Walters: If -- if the Board of Education was charged under the state law with the responsibility of having some control or power over the electoral process, it's then I would have to say, under the decision in Sheffield, even though they may not register voters that they would be a covered subdivision, yes Your Honor.

Justice Potter Stewart: Well, Mr. Walters, is there any question at all that your client had the power to adopt the rule that it did adopt in this case?

Mr. Walters: Not in my opinion, no sir.

Justice Potter Stewart: Well then, doesn't the real issue become whether or not the rule that was adopted is a standard practice or a procedure with respect to voting?

Mr. Walters: No sir, with all due respect, Your Honor.

But I do not believe that Rule 58 is anything other a personnel rule.

Justice Potter Stewart: Well then, isn't the issue whether or not it is a standard practice or procedure with respect to voting?

Mr. Walters: No sir because (Voice Overlap) --

Chief Justice Warren E. Burger: Excuse me counsel, do you mean, your negative answer to the question or to the merits of the question?

Mr. Walters: I think I mean it to the merits of the question, Mr. Chief Justice.

If an employee of the Board of Education went to register for the Elective Office of the House of Representatives, he would not be asked the question, Are you getting a leave of absence from the Board of Education?

He would not be asked anything.

He would automatically be qualified and would be permitted to run.

Now, the question then arises, may it please Your Honor, as to whether or not after he does this, after he said, I am running, I am offering for the Office of the Georgia House of Representatives, then, as to whether the Board of Education who has contracted with this man for his services for a 12-month period has the right to demand that this person fulfill his contract which he previously entered into.

And we submit that this had absolutely nothing to do with voting.

Justice Potter Stewart: Wasn't that the real issue, since you concede that the school board had power under state law to adopt the rule it did adopt?

Mr. Walters: Yes, Your Honor, I don't -- I think it certainly if the issue is to whether or not the rule is a standard practice of --

Justice Byron R. White: But you have already also conceded that the state legislature adopted the same rule.

It is a standard and covered by Section 5.

Mr. Walters: Yes, because the state legislature could say, before you qualify for office.

Justice Byron R. White: Well, no.

I asked you if you have the state legislature said that no public employee way run for office, you say -- I thought you conceded that that would be covered by Section 5 because it was a standard.

Mr. Walters: Yes, I think so because as I said, the State of Georgia is specifically designated Under Section 4 (b) of the Act and by the Attorney General of state.

Chief Justice Warren E. Burger: It does have control of the electoral --

Mr. Walters: It does have absolute control in Georgia over the elections.

The Dougherty County Board of Education cannot enact any regulation --

Justice Potter Stewart: Well, it did and it did adopt this rule.

Mr. Walters: Yes sir, but we say --

Justice Potter Stewart: And there's no question of its power to do so.

Mr. Walters: No sir, I do not believe that there's any question of its power to adopt reasonable rules and regulations pertaining to its employees.

No, I do not believe there's any.

Justice William H. Rehnquist: What if the State of Georgia or the Dougherty County adopted a rule saying that no person who is physically absent from his place of potential employment as a county employee or a state employee shall be paid his wages, and that was applied to someone who ran for the United States Senate from Georgia.

Mr. Walters: No sir.

I would not construe that as being a voting rule (Voice Overlap)

Justice William H. Rehnquist: That's simply saying you got to be there and perform your service if you're going to be paid.

Justice Potter Stewart: Wouldn't you agree that the -- whether that was adopted as a rule of the school board or adopted by -- as a law by the state legislature, the test would be the same?

Mr. Walters: I would not, Your Honor, because again, I have to go back to the fact that I concede that the State of Georgia does have control over the electoral process.

Justice Potter Stewart: Well, certainly.

But the question would be that its legislating of a rule such, as it was described by my brother Rehnquist, would be the legislation of a standard practice or procedure with respect to voting, wouldn't it?

Mr. Walters: No sir, if I understood Mr. Justice Renhquist's inquiry, it would not be a rule pertaining to a standard practice --.

Justice Potter Stewart: But that would be issue, wouldn't it?

Mr. Walters: But it would be a rule pertaining as to whether or not that man was paid --

Justice William H. Rehnquist: Well, that's what Justice Stewart's asking you?

Would such a rule be a standard practice --

Mr. Walters: No sir, not in my judgment.

Justice Byron R. White: And it would not be covered by Section 5 whether it was passed for the state legislature or the school board.

Justice Potter Stewart: In any event, that would be the question, wouldn't it?

Mr. Walters: No sir, I do not believe that would be --

Justice Thurgood Marshall: Mr. Walters, do you see any difference between a law or rule which says that any county officer who doesn't work won't be paid and a rule that says any county officer who doesn't work because of elections would not be paid?

They're two different animals, aren't they?

Mr. Walters: No sir, Mr. Justice Marshall, I had no --

Justice Thurgood Marshall: Well, why do you need the additional rule to limit it to his working for election?

Mr. Walters: If I may --

Justice Thurgood Marshall: Why don't you just pass a rule and said if he doesn't do his work, he doesn't get paid.

Mr. Walters: I think that this would have been, Mr. Justice Marshall, a answer to this without litigation.

And I think that the Board of Education would have been properly within its powers and authorities --

Justice Thurgood Marshall: Are you saying it's now within its authority.

Mr. Walters: Yes sir, but I say I think they would have been properly within their powers if Mr. White, upon election, and not serving any job for which he had contracted to have terminated his employment without any rule, without any regulation.

But the Board, I think, chose to deal with this matter in a more reasonable and moderate fashion.

And they prescribed simply and concisely the -- how a man could enter the political arena and continue in his employment with the Board of Education.

Justice Thurgood Marshall: Well could, under the present rules, is there anything that prevent a person in this man's position from working for a liquor store?

Mr. Walters: Is there anything that prevents him from working for a liquor store?

Justice Thurgood Marshall: Yes sir, from doing anything else.

Mr. Walters: Certainly, there's nothing in the rule that would prevent him from work --

Justice Thurgood Marshall: The only prevention is if you work for election.

Mr. Walters: Well, if I may, Mr. Justice Marshall, I think that the Board, when a contract with an employee are entitled to expect his full attention and full time to the duties he is contracted to perform.

Chief Justice Warren E. Burger: Are you saying that's an implied condition of his contract?

Mr. Walters: Yes I am, Mr. Chief Justice.

Justice Thurgood Marshall: Well then, you did --

Mr. Walters: And this maybe true but I -- that we -- I think we needed a rule to show that it would have spelled out to any employee then or in the future.

Justice Byron R. White: What if the [Inaudible] Section 5 there wasn't a change, but I didn't know you're contending that it wasn't a change?

Mr. Walters: Yes sir, I am contending that it was not a change.

Justice Byron R. White: And the legal decision below is against you on that?

Mr. Walters: Yes, I think that the legal decision in a three-judge court hold a point (Voice Overlap) with my expectation of the electoral process.

Justice Byron R. White: With respect to what Georgia law is that this was a change.

Mr. Walters: And I ask this question myself, what modification and what change?

Justice Byron R. White: Yes.

Mr. Walters: Now, the lower court decision says and if I may quote about imposing a financial laws on its employees who choose to become candidates, it make it more difficult for them to participate in the democratic process and consequently restricts the field from which the voters may select their representatives.

Now, this I think, is the holding of the lower court, and if this is what they say, is the modification --

Justice Lewis F. Powell: Mr. Walters.

Mr. Walters: Yes sir.

Justice Lewis F. Powell: May I interrupt you, Mr. White as I understand it, was assistant coordinator of student personnel services.

Mr. Walters: Correct, Your Honor, yes sir.

Justice Lewis F. Powell: What were his duties?

Mr. Walters: His duties were counseling of students, selecting their -- maybe their curriculum, principally counseling as I understand it Mr. Justice Powell.

Justice Lewis F. Powell: The Board had a coordinator and Mr. White was an assistant.

How many other assistants were they?

Mr. Walters: I do not know Mr. Justice Powell, I could certainly (Voice Overlap).

Justice Lewis F. Powell: It's not essential either way, I understand.

Mr. Walters: But I do not know how many others there were sir.

Thank you.

Chief Justice Warren E. Burger: Counsel, with the question due extensively, we'll enlarge your time five minutes and enlarge your friend's time, five minutes accordingly.

Mr. Walters: Alright.

Chief Justice Warren E. Burger: But they can divide it as they wish.

You may reserve it if you wish for rebuttal.

Mr. Walters: I would like to with the Court's permission.

Argument of John R. Myer

Chief Justice Warren E. Burger: Mr. Myer.

Mr. Myer: Mr. Chief Justice and may it please the Court.

The statement of facts as presented by counsel for appellant is correct in so far as it goes.

I would, however, like to add certain additional facts that I think are relevant to the Court's inquiry.

The first is that, in May of 1972, when appellee John White announced his intention to run, he was the first black candidate, at least in living memory, and perhaps since reconstruction in their times, to run for the state general assembly.

Chief Justice Warren E. Burger: Does this make a difference?

Mr. Myer: We think, Your Honor, the issue --

Chief Justice Warren E. Burger: Does this make a difference in this case?

Mr. Myer: It makes a difference not in this case, but it does we think in terms of the substantive Section 5 question which if this had been submitted, is the inquiry of the Attorney General or the District Court of Columbia.

And we are suggesting this as well as certain other circumstances surrounding the adoption of the rule because it is apparent that there is a potential in this case.

And if that is the --

Justice Lewis F. Powell: Suppose there were no such circumstances, would this Rule 58 have to be pre-cleared?

Mr. Myer: Yes Your Honor, it would.

Justice Lewis F. Powell: But why are you arguing the surrounding circumstances?

Mr. Myer: Because this is simply is an illustration, I think, Your Honor of the kind of change that can be made in a circumstance which raises some suspicion without determining whether or not in fact it violates Section 5 standards of purpose or effect but rather in the context of this case, I think it is relevant that immediately upon announcing, the rule was adopted.

Justice Lewis F. Powell: If the only people who'd ever announced they wish to run had been White, would you be making the same --

Mr. Myer: Mr. White was also, so far as any record show, the record is clear that he is the first also to ever announce to run.

Justice Lewis F. Powell: Right, I understand that.I was putting a different case to you.

Mr. Myer: But the issue before the court below is not the substantive determination, it is a question of whether or not a Rule 58 is a covered change under Section 5 and (b) as the second question on the jurisdictional statement, whether or not the Dougherty County Board of Education is a covered entity.

Justice Lewis F. Powell: And you're saying that discriminatory intent or effect is immaterial for Section 5 or --?

Mr. Myer: For Section 5 coverage question, that is correct although that is the nature of the inquiry which would be made upon submission to the Attorney General.

Justice Lewis F. Powell: Did you consider bring a 1983 suit rather than proceeding this way?

Mr. Myer: Your Honor, the complaint is filed in five counts and there's a 1983 count, there is a Fourteenth Amendment due process and equal protection count as well as the Fifteenth Amendment count.

The case was disposed of on cross motions for partial summary judgment on the Section 5 issue and that having been resolved in favor of the plaintiff, it rendered it unnecessary then to reach the other counsel in the compliant.

Justice William H. Rehnquist: What if the Ford Motor Company had a plant in Albany, Georgia and first time a black employee sought to run for political office and it adopted exactly the same rule that the Dougherty County Board of Education had adopted.

Your argument is to the potential for abuse would be just as good there as in the case of the Dougherty County Board of Education, wouldn't it?

Mr. Myer: The only difference there, Your Honor, is that as a private employer, they're clearly not covered by Section 5, that is the Voting Rights Act only extends to those designated jurisdictions and as this Court has clarified in Sheffield, state actors within that designated jurisdiction, whether it is a state or a political subdivision --

Justice William H. Rehnquist: So potential for discrimination really isn't that any part of the statutory test, is it?

Mr. Myer: Oh, I believe it is.

But it is only applicable to state actors, not to private sector of the country.

Justice William H. Rehnquist: And as a matter of statutory coverage.

Mr. Myer: As a matter of what Congress intended when it adopted the Voting Rights Act of 1965.

Justice William H. Rehnquist: Well, so you say that, yes, it isn't enough that it be a standard plan or practice, it has to have a potential for discrimination?

Mr. Myer: Well, that is the -- no, the question is whether the standard practice or procedure and that is the substantive determination that the Attorney General makes once it submitted it, that is whether it has a potential --

Justice William H. Rehnquist: But in deciding of whether it's to be submitted or not, is there any inquiry or not?

Mr. Myer: No, the answer is no.

Now --

Justice Byron R. White: Is it your submission that any kind of an official rule that has some kind of an impact on an election or it's just a standard of practice?

Just any --

Mr. Myer: Well --

Justice Byron R. White: I can see why I call them maybe a qualification for candidacy or something that this wasn't the qualification for candidacy.

Mr. Myer: This was a qualification for candidacy in so far as public employees of Dougherty County Board of Education and that it impose a very substantial financial barrier.

Justice Byron R. White: I know, but there wasn't any -- but, there wasn't any disqualification from running imposed on them?

Mr. Myer: No, that's correct.

There was a disincentive for running just as for example in Whitley, there were disincentives and there were increased barriers to qualifying as an independent candidate.

Justice Byron R. White: But if a school teacher went over and filed as a candidate, they wouldn't reject his papers because he was employed by the Board.

Mr. Myer: That's correct, and indeed the school board's policy --

Justice Byron R. White: The school board might fire him, but I don't know.

Mr. Myer: No, in fact, under the schools board's policy, they would not fire him --

Justice Byron R. White: They wouldn't fire him, they just (Voice Overlap).

Mr. Myer: They require him to take leave even though during the time he was running, he was ready, able and willing to perform his contractual duties.

Chief Justice Warren E. Burger: Mr. Myer, it's not unknown in political life that people who leave their employment to campaign for public office have an arrangement with their campaign committees that their living cost or their regular salary is supplanted by their supporters.

Now, suppose the record in this case or any case would show, that the campaign committee had provided the substitute for the salary, suppose that was shown in this case, would you be here?

Mr. Myer: Yes sir, because I think that is an irrelevant factor in so far as to determining --

Chief Justice Warren E. Burger: He should get two salaries then, he should get the salary from his committee and a salary from the public also?

Mr. Myer: Well, he should get the salary so long as he is certainly performing his duties and that for example, I think, suggests the question Mr. Justice Marshall asked of Mr. Walters, that is if instead of an electoral context, we had a liquor business that he was operating on the side, he could obviously have two incomes.

But I think the question of whether or not he would receive some supplemental in a particular case does not -- is not a relevant factor in determining --

Justice Byron R. White: But the question is whether he gets paid for no services, he wanted to perform the services and get paid for it.

Mr. Myer: That is correct, that is correct and was ready and able to do so during the time that he was campaigning.

Justice Potter Stewart: Mr. Myers, you're addressing yourself now, I gather, to the first question presented, i.e. whether this rule is a standard practice or procedure with respect to voting?

Mr. Myer: That is correct.

Justice Potter Stewart: Not to the second issue?

Mr. Myer: That is correct.

Justice Potter Stewart: And that's the only issue to which you're addressing yourself?

Mr. Myer: That is correct, exactly.

Justice Lewis F. Powell: Mr. Myer.

Mr. Myer: Yes sir.

Justice Lewis F. Powell: When I've given you very much chance to argue your own case, I'll ask you one more question and then try to keep quiet.

Mr. Myer: I'll answer any question of the Court.

Justice Lewis F. Powell: Right.

This goes back to something that you asked, I think your adversary was asked.

Let's assume that the legislature of Georgia enacted a statute of general application to all state employees and all employees of local subdivisions of the state that said in substance that, While any such employee could run for state or local office, that if one did and wished a compensation during that period, he would have to work at least half time, would that require pre-clearance?

Mr. Myer: Let me make sure I understand the hypothetical.

It is a state statute that says, During the time you are campaigning, in order to receive pay, you must be willing to work half-time?

Justice Lewis F. Powell: Yes.

Mr. Myer: I think clearly that that is a change in the election law insofar as it sets forth standards, practices or procedures with respect to campaigning and offering for candidacy.

Justice Lewis F. Powell: Now, may I ask you a second question?

Justice Potter Stewart: With respect to voting.

Mr. Myer: And it is -- and that as this Court has defined the voting language within Section 5 that encompasses candidacy.

Justice Lewis F. Powell: May I ask you another question to follow up on that one whether it violated my suggestion, I wouldn't ask you too many.

Let's assume that Attorney General in no circumstances decided to not to pre-clear.

In other words, he said, Georgia, you must go ahead and pay these people while they work at all, that means the public would have to pay for people who run for office regardless of whether they perform any services.

Do you think the Congress of the United States intended any such result?

Mr. Myer: Well, Mr. Justice Powell, I think that Congress intended and certainly, if there were any question in the 65 Act, the ratification of this Court's decision in Allen and the companion cases in both 1970 and 1975, make it abundantly clear that it's Congress' intention that this Act should apply in the most minor way.

And I think that where there is any alteration, as this Court has said, that has to be submitted.

Now, the Court has posed the question of whether or not, if the Attorney General objected and so that that state statute could to go in to effect, Congress intended that.

I think Congress intended for that kind of scrutiny and has provided, not only an expedited consideration under the 60-day provision submission to the Attorney General, but where there is an objection that state, the State of Georgia, could then come in to the District Court for the District of Columbia and raise that issue as to whether or not that's a violation of the substantive standards as there have been a number of cases such as Beer in this Court.

Chief Justice Warren E. Burger: How many people are affected by this rule Mr. Myer?

Mr. Myer: Your Honor, it is not -- the record is not -- does not contain what the racial composition of the Dougherty County Board of Education is.If for example, however, and we do have statistic -- census information in the brief that show that in excess of 53% of those listed in the 1970 census were black.

Chief Justice Warren E. Burger: I'm talking about those who work for this Board under affected by this rule --

Mr. Myer: Well --

Chief Justice Warren E. Burger: -- not the voting population.

Mr. Myer: That I do not know.

Chief Justice Warren E. Burger: Is it likely that majority of them are whites?

Mr. Myer: It is likely.

Chief Justice Warren E. Burger: Very likely?

Mr. Myer: Correct.

Chief Justice Warren E. Burger: Well then, the rule has a greater impact on whites than on anyone else.

Mr. Myer: Well, Mr. Chief Justice, that may be true except that I would have submit that the philosophy behind the kind remedy that Section 5 represents was not to focus on the discrimination issue alone, that is if there was a standard practice or procedure in effect in June of 1964 that is patently discriminatory, it escapes Section 5 inquiry.

And if subsequent to the effective date of the Act, any covered entity makes any change no matter how ameliorative or how discriminatory that change should be submitted.

And that was based upon a hundred years of Congress trying to deal with voting rights discrimination starting with Section 5 of the 1870 Voting Rights Act, continuing in the 1957 Act, continued in the 1960 Act, and included in the 1964 Act.

Justice Thurgood Marshall: Mr. Myer, I want to take another hypothetical.

If Georgia passed and we now assumed that most of the employees, state employees are white in Georgia for the purpose of this question.

And the legislative passed an act saying that, No state employee can run for office, wouldn't that have to be cleared?

Mr. Myer: It would, Your Honor if it represents --

Justice Thurgood Marshall: Is there any question?

Mr. Myer: There is no question in my view if it represents a change from what was in effect, November 1, 1964.

Now, to return to Mr. --

Justice Potter Stewart: And then it's impact would be a matter for the Attorney General to determine.

Mr. Myer: Under the substantive inquiry--

Justice Potter Stewart: Under the substantive inquiry that he makes.

Mr. Myer: That is correct.

And to return to the hypothetical that Mr. Justice White was posing to counsel for appellant, I think there is no question that if the Georgia general assembly adopted Rule 58 but simply made it applicable to every employee or even every Board of Education employee, and in fact made it a part of the electoral statute for the State of Georgia, Title 34, that would have to be submitted.Given that, and given this Court's decision in Sheffield, then I think this case demonstrates the soundness of that analysis, you have a delegated power, under Georgia Code 32-1011, the local boards of education are granted the authority to conduct their affairs.

And they have done on a localized basis what clearly is the state did on a statewide basis would be submitted under the Act.

Justice John Paul Stevens: Mr. Myer, can I ask you a question?

You've got two issues, the standard or practice issue on whether this unit is covered and I'd like to direct your attention to the coverage of the school board.

Mr. Myer: Yes sir.

Justice John Paul Stevens: Now, supposing instead of the school board action, you had say the social science department of the high school thought that it would be desirable to have some teachers in the legislature, and so they entered the social science department adopted a rule without clearing it with the County Board, that said, "Those who run for election during the fall will have a half teaching schedule on the fall and a double teaching schedule in the spring or something like that"

Would that unit have to get clearance?

Mr. Myer: No.

Justice John Paul Stevens: It's truly be a practice -- a standard of practice that have the same effect on a bit encourage and why would they have to clear it?

Mr. Myer: At least in the hypothetical as you opposed it Mr. Justice Stevens, that would be a state law question and could in fact be challenged on the grounds that only the State Board of education--I mean the local board of education have--

Justice John Paul Stevens: Now assume that -- assume that this is the kind of thing that the head of the department has scheduling authority, he just decides he'd like to have this teacher run for election at fall.

So, he said, Our rule would be, if you run for election at fall, you're taking extra course in the spring and one less in the fall.

Mr. Myer: Assuming arguendo that the social science department had the authority to do it.

Justice John Paul Stevens: Correct.

Mr. Myer: Then, quite clearly, I think on the Sheffield --

Justice John Paul Stevens: You have to pre-clear.

Mr. Myer: He had to submit.

Justice John Paul Stevens: Right.

Mr. Myer: And that is as Sheffield determined the designation in 14 (c) (2) are related to designation.

Once designated any state actor within --

Justice John Paul Stevens: Supposing the coach of the football team says, you can be excused for practice on Friday, that have to be pre-cleared too?

Mr. Myer: Well --

Justice John Paul Stevens: That the line coach doesn't have to show up on Friday, so he has and extra date to campaign.

Mr. Myer: (Voice Overlap) that's correct, and as a state actor, if that altered any standard practice or procedure which affected and assuming that it was also a covered change, assuming that as well.

Justice John Paul Stevens: So you want to encourage him to run for office.

Mr. Myer: And so that the only inquiry is the entity, if that entity through any of the subagents has made a change, that would have to be under the operating --

Justice John Paul Stevens: Basically, that's what Sheffield holds, isn't it?

Mr. Myer: And that's what Sheffield holds at any state actor, exercising control within a designated jurisdiction must submit.Now, and I think --

Justice Potter Stewart: Well, that would be true in a local firehouse, if the man in charged at firehouse said to anyone of the firemen want to campaign for office, take your off duty here, you're going to have to take a leave of absence.

Mr. Myer: Well, again, assuming that in the distribution of the power of control and regulation over fire department it was that delegated.

Justice Potter Stewart: (Voice Overlap) I assume that the head of the firehouse has the authority to do that.

Mr. Myer: That's correct, again, so long as the change is a standard -- is a covered change, any state actor under this Court's decision in Sheffield must submit and I think that that is a sound rule because in this case, indeed, in Dougherty County, there is the decision that's decided Paige versus Gray.

And in that, the District Judge there last year, in a White versus Regester case, involving Albany, described the entire history or segregation in Albany and Dougherty County and stated that, like most and many cities in the south, segregation has been eliminated in the Government very slowly and generally only by court order so that the potential to circumvent what Section 5 was intended to do is very substantial.

And where we have enacted at the state law level would be covered to say that the entity ought escape it because it is only at the local level, I think would defeat the purposes --

Justice Potter Stewart: Of course we have to amend my example because you don't really have to pre-clear.

He could come to the District of Columbia and file a lawsuit and get authority, couldn't he?

Mr. Myer: Well, that's correct, although --

Justice Potter Stewart: There's an option always.

Mr. Myer: He always has that option and I would say that the burden in Section 5, Congress intended to shift the burden.

That is a case by case approach, had not work for a hundred years.

Justice William H. Rehnquist: But your answers would apply not just in Dougherty County, where you said they have been very slow in eliminating segregation but in every other conceivable municipal corporation in a covered state.

Mr. Myer: Well, that's correct.In so far as --

Justice William H. Rehnquist: So really, it doesn't make any difference that they had been slow in eliminating segregation in Dougherty County as far as the legal test is --

Mr. Myer: That is correct.

That is correct.

The legal test would be if you are state actor and assuming that it's a covered change, it must be pretty cleared.

Justice Potter Stewart: So then the basic issue is whether or not this is a covered changed?

Mr. Myer: That is correct and we--

Justice Potter Stewart: If your submission is correct, because theirs is no question about the fact that the school board is a state agency?

Mr. Myer: That is correct and now it's a political subdivision.

Justice Lewis F. Powell: Mr. Myer.

Mr. Myer.

Mr. Myer: Yes sir.

Justice Lewis F. Powell: Is the option that you mentioned of coming to the District Court in the District of Columbia really a feasible option for a small school board or a small board of health in El Paso, Texas, for example, what about the cost in time and the delay?

Mr. Myer: Your Honor, I would submit that pending before this Court right now on jurisdictional statements filed in July is a jurisdictional statement by both the Wilkes County, Georgia Board of Education and the Wilkes County Board of Commissioners of roads and revenues where pursuant to Section 5 case, private cases, they filed changes, state law changes from district at large.

The Attorney General objects Wilkes County, Georgia both entities have filed lawsuits in the District Court of Columbia and engaged in a trial and there was a decision adverse and they are then bringing the case here.

The 1970 census shows that Wilkes County, Georgia has a population of 8000 people.

They have clearly made a determination and clearly have the resources to bring that action just as in this case Dougherty County Board of Education has determined that rather than submit Rule 58, they have the resources to bring this case to the Supreme Court for its determination.

So, I think, as a practical matter, my answer is yes and those are certainly examples in the State of Georgia.

Justice Lewis F. Powell: Do you know how many of these cases are submitted to the Attorney General this year?

Mr. Myer: I do not have the current figures as I recall the testimony in this 75 extension.

It was approximately a thousand a year and I'm sure that Mr. Wallace may or may will have that information.

Justice Lewis F. Powell: And that will be three or four working day or more, wouldn't it?

Mr. Myer: Well, that's right and I think --

Justice Lewis F. Powell: You think it's feasible for all of those who come to District of Columbia.

I know they have the right under law and I know Congress passed it and you didn't but you said it was feasible.

Mr. Myer: Oh well, clearly and I think Mr. Wallace may have the figures, I would assume that 99 % of the submissions made to the Attorney General are approved, that is they are nondiscriminatory, so that we are not talking about three lawsuits a day and indeed the number of cases brought in the District of Columbia I'm sure is relatively small just as for example the number of section or the number of cases that the Attorney General has brought enforcing Section 5 that is prior between 1970 and the testimony of 1975, there were 26 lawsuits brought by the Attorney General to enforced the Voting Rights Act, so that the burden I think on the Courts has at least empirically not been shown and I'm sure that at some point if Congress were to be convinced to that as they will have the opportunity in 1982 that alteration can be made.

I would want -- one additional argument that I would like to submit is that this kind of change and in terms of where is the line drawn I think that Congress in enacting Section 5 contemplated or was trying to deal with all sorts of changes and therefore it was the intent in fact by the submission process not to say specifically and not to be able to define specifically every conceivable change and indeed there was Attorney General Burt Marshall's testimony about the infinite variety of ways that school districts around the country had found to come up with new devices to delay desegregation.

So that, whatever and there are all kinds of hypothetical suits can be submitted but the standard and the line to draw in this case is I think very clear and that line is where there is a rule or change which directly addresses the electoral system as this does, then that clearly, whatever the other kinds of potential hypothetical and potential factual situations would arise but that clearly is covered.

And that insofar as this case is concerned that provides the current of standard or rule to set in this case.

That is where the action of directly addresses the electoral process then at least, well, that's not the final line, that's as far as this Court needs to go.

Justice Lewis F. Powell: Mr. Myer, let me ask you another hypothetical, it appears to me.

What if the sanitation department that's in charge of picking up garbage around the city and it often employs people who've been precinct captains and the like adopted a rule that, We won't pick up garbage on two days before elections so we can get out and circulate in the precincts and frankly the reason is to enable people to participate in the electoral process.

I assume that would be covered, would it?

Mr. Myer: Absolutely, and even if for example in the sanitation department if the majority of the workers there were black.

Justice Lewis F. Powell: Suppose -- well, forgetting the black and I suppose it just let them off an hour to vote, they hadn't done that before, the sanitation department there.

Mr. Myer: I think, technically that would be submitted, Your Honor.

I think there is a modicum of common sense that does enter into the operation of the Act in that it is essentially those changes which are goring someone's ox that are the one's that come to controversy and there are many but as a technical matter I would agree that that would happen.

Justice Lewis F. Powell: So the candidate, opposing candidate feels that most of those people driving the trucks would have to vote for his opponent though.

I suppose he could challenge it.

Mr. Myer: Indeed he could, indeed he could.

Final argument is that I think under this Court's decision, that is one to go return to the question for coverage standard practice or procedure that I think the Court's decisions in Whitley and subsequently Hadnott v. Amos show very clearly that where there is a change concerning qualification and increase substantial, increase barriers to candidacy, those kinds of changes are contemplated.

Justice Lewis F. Powell: But this is a -- do you think this is about as far as Section 5 has been stretched in the sense that you're frankly saying just any substantial impact on the possibility of somebody running for office is covered.

Mr. Myer: Well Section 5 --

Justice Byron R. White: There are any other cases just like the current.

Mr. Myer: This is the first case coming up like this, there is at least to my knowledge but Section 5, Mr. Justice White, does not look at the degree of control that is if you begin to talk about control moving a polling place 25 feet is not a major impact.

Justice Byron R. White: I know but you can read Section 5 as saying, it's not that it.

We're really dealing with laws that are really intended to deal directly with the electoral process.

The voting or the electoral process and if some school board just for efficiency says, Look you got a work and you can have an hour off, then why should that be covered?

Mr. Myer: Well, I think that your question was Section 5 was intended to deal with those changes which addressed the electoral process and my response is at least in so far of Rule 58 is concerned --

Justice Byron R. White: Right, it covers this one.

That maybe and say if you're going to make a rule on how much time you have off for voting, they do -- they're really dealing directly with the voting.

This one doesn't.

Mr. Myer: Well, I think --

Justice Byron R. White: This case doesn't do that.It's outside of that process.

Mr. Myer: It directly deals with voting as voting has been defined by this Court.

Justice Byron R. White: How does it directly deal with it?

Mr. Myer: Well, this Court has defined the language of the term voting.

Justice Byron R. White: Now, how does it directly deal with candidacy?

Mr. Myer: Because it imposes a very substantial economic barrier to --

Justice Byron R. White: But it doesn't and impose a qualification.

Mr. Myer: It does not impose a technical qualification as the prior colloquy involve of disqualifying.

However --

Justice Byron R. White: But it is intended to disqualify.

Either as far as you can tell it's intended to -- it's intended to do and promote the efficiency of the service.

Mr. Myer: Well, although that goes to the substantive question, Mr. White.

It seems to me it may well be intended to do that.

That is even though an employee is willing to work, it has a discouraging effect, that is you are -- you need income and it has that obvious impact of saying even though during the time you're running for office, you are ready, able and willing to perform the work contemplated under the contract.

Chief Justice Warren E. Burger: Suppose the rule, instead of present out here, was any employee who engaged in any other activity which occupied a significant amount of his time would be required to take a leave of absence.

Now, I'm not speaking now of the campaigning, I'm speaking of his serving for the 90 days or whatever it maybe in Georgia in the legislature.

Would you say that rule would have to be cleared if they applied it to people who wanted to take three months off to go to the university or three months off to sit in the legislature?

Mr. Myer: I think that in those circumstances where it is not directly affect, it may will be that, that would not be covered.

Chief Justice Warren E. Burger: Well, doesn't it have the same effect on this man?

Mr. Myer: Well, except that where standards with directly addresses and may and constitute change then those would be covered and indeed if that will also cover if instead of directly addressing it if it did it in an across the board fashion, I think that in circumstances, that also would have to be submitted and there are number of hypotheticals that I think would have to be determined on a case by case basis.

But I think that this case is at least clear on its facts that insofar as the rule directly addresses where it is clearly the intention of the Dougherty County of Board of Education to affect running for office that is a covered change.

Justice Thurgood Marshall: And isn't also true that Attorney General might learn to do it.

Mr. Myer: All we are saying Mr. Justice Marshall is that it ought to be submitted and that substantive inquiry is one the Attorney General makes.

Justice Thurgood Marshall: And he could very well too find.

Mr. Myer: And he could may well approve it as he does most of the submissions which he receives.

Thank you.

Argument of Lawrence G. Wallace

Chief Justice Warren E. Burger: Mr. Wallace.

Mr. Wallace: Mr. Chief Justice and may it please the Court.

The key to this case in our view is to be found in this Court's statement five years ago in Georgia against the United States that Section 5 of the Voting Rights Act is not concerned with simple inventory of voting procedures but rather with the reality of change practices as they affect the Negro voter.

The problem in this case came to our attention as a result of the complaint filed on behalf of Mr. White and we took a look at it.

There's a stipulation in this record that as a result of the adoption of Rule 58, Mr. White was required to take a lead of absence of approximately three months time without pay in 1972, of approximately five months in 1974 and approximately three months in 1976.It was only in 1974 that he was involved and contested general election campaign as well as primary campaign and in the printed appendix on page 24 (a), at the bottom of the page, there is listed in his affidavit the sums of money that he lost in compensation as a result of the application of this rule to him even --

Justice William H. Rehnquist: Mr. Wallace, what if the school board did have this rule in 1965 and then abolished it, so that and they admitted easier for candidates to run.

Under your co-counsel's submission that nonetheless would have had been submitted at the Justice Department.

Mr. Wallace: Of course the result might be different but the question is whether this is a rule covered by Section 5.

Justice William H. Rehnquist: So really, it doesn't make much difference whether it deters someone or encourages them.

Mr. Wallace: Well, what makes a difference as we view the purpose of Section 5 as explained by the Court and the quotation that I started my argument with, what makes a difference is the potential impact on the reality of affecting voting rights and we have to look to see what is involved here and compare it with the experiences that we've had under Section 5 which is what I'm attempting to do here for the benefit of the Court.

As we look at the figures at the bottom of page 24 (a), we see first of all that these figures suggest that Mr. White is probably not a very affluent individual since three months of salary 1972 amounted to $2810.00 and so forth.

The second thing we noticed is that these are rather substantial sums to have to be forfeiting in order to be able to run for office in comparison with the closest analogy that we have been dealing with under the Voting Rights Act in our experience which is changes in the size of filing fees.

Justice Lewis F. Powell: Mr. Wallace, suppose he'd been the riches man in the county, what difference would it have made?

Mr. Wallace: We're looking at potential impact and --

Justice Lewis F. Powell: But if this case decided in accordance with the position of the department, the hypotheticals that have been asked and answered here today would have to follow this precedent without regard to who was rich and who was poor --

Mr. Wallace: Of Course.

Justice Lewis F. Powell: And what the consequences were.

Mr. Wallace: I'm merely trying to follow this Court's admonition in Georgia against the United States that the Act is to be determined with regard to the realities of changes in voting rights as they affect Negro voters and candidates and --

Justice William J. Brennan: We view each case then on its facts to determine what the reality is.

Mr. Wallace: We're trying to determine whether this is a change that's covered and in order to determine whether it's a change that's covered, we first look to see what kind of a change it is and compare it with other changes that we know are within the coverage of the Act that we have been dealing with and increases in filing fees were singled out for mention in the 1975 Committee Reports in both the House and the Senate as examples of changes for which the Attorney General has properly interposed objections under the Voting Rights Act which Congress was extending.

Justice Potter Stewart: What if really the problem of the argument you're making you're going to the merits of the question that the Attorney General would be required to decide were these submitted to him, because as my brother Rehnquist has indicated the repeal of such a rule of this would be under your submission a standard practice or procedure with respect to voting.

Mr. Wallace: I'm not attempting to argue the merits --

Justice Potter Stewart: And that's the issue before us not the merits.

Mr. Wallace: I understand.

I'm not attempting to argue the merits, Mr. Justice.I'm merely trying to see whether this is --

Justice Potter Stewart: Well, we wonder if it has effect on Negro voters is a matter for the Attorney General to decide if this is required to be submitted to him under the statute.

Mr. Wallace: That is correct.

Justice Potter Stewart: But we are concerned -- we're concerned with that question not with the merits of this.

Mr. Wallace: That is correct and the statute applies to changes as they, in reality, affect opportunities to exercise voting rights and to run for office and we look at Department of Justice records with respect to increases in filing fees shortly before the fact that we had to interpose objections to some of them was approved by both committees of Congress as proper administration of the Voting Rights Act to see what kinds of changes, what kinds of financial burdens, had required us in our view to interpose objections because of the burdens that they placed on the ability of individuals to run for office and what we saw as a few examples in 1973 is that we saw fit to interpose an objection to an increase in Ocilla, Georgia of the filing fee to run for mayor from $10.00 to $125.00 and to run for the council from $10.00 to $100.00.

We had similar examples --

Justice Potter Stewart: Wouldn't the reduction on the filing fee come equally within it?

Mr. Wallace: Of course.

Of course but the point is the questions from the bench have suggested that this case threatens to deflect us into trivia but we're talking about a case in which on its face, on the allegations of the compliant, a burden of several thousand dollars has been imposed on the ability of a candidate to run for office where we have been required to review burdens of less than a hundred dollars that have been impose in the change in filing fees.

It's true that this is not in form a filing fee but the economic impact on the face of it is very similar as a disincentive to run for office.

Somehow, this money must be found, he has to do without it whether he has to pay it as a filing fee or not and if the state legislature were to adopt a rule of local legislation that employees of the Dougherty County Board of Education in order to run for the state legislature must pay a filing fee of $3,000.00 or must pay a filing fee equivalent to three months salary, it would be obvious that, that would be a change covered by the Voting Rights Act.

Justice Lewis F. Powell: It will be equally obvious if they only required 25 cents, wouldn't it?

Mr. Wallace: That is correct, that is correct but the point is that Congress -- the fundamental premise of the Voting Rights Act is that Congress believed it could not anticipate the form that new obstacles to a voting rights and to running for office might take and therefore as the Court said in Sheffield, it shifted the advantages of time and inertia from the perpetrators of discrimination to its victims.

Chief Justice Warren E. Burger: If this rule have been in effect since 1890, let us say, there wouldn't be in the Section 5 case at all, would there?

Mr. Wallace: If the rule had been in effect, of course not --

Chief Justice Warren E. Burger: You might have relief somewhere else you would suggest but you wouldn't have any hearing.

Mr. Wallace: But that is correct.

Chief Justice Warren E. Burger: But if they then abolish the rule you have set told us that it could have to be submitted.

Mr. Wallace: Well, there are many submissions that are approved very readily.

The question was asked what number of submissions are we getting.

The latest figures indicate that it's approximately 2,000 submissions a year involving approximately 4500 changes because a number of this submissions involved multiple changes and less than 2% of those result in an objection being interposed and about 91% of the pre-clearance is given without any further interchange of correspondence.

Of course there are many routine submissions.

Justice Lewis F. Powell: Mr. Wallace, the Attorney General has to pass on 2000 of this a year?

Mr. Wallace: That is correct, that is the way the numbers are running and --

Justice Lewis F. Powell: And that -- that has to be done with all of the other important business of Attorney General of the United States has to transact.

Mr. Wallace: The Voting Rights Act section of the civil rights division of the Department of Justice is staffed to implement the policies reflected in this Act which has been one of the most successful civil rights acts in history and the fact that the percentage of objections interposed this small, doesn't detract from the fact that the Act has resulted in great changes in voting and candidacy in the covered jurisdictions and where the objections are interposed, they often amount to very important safeguards whereas my co-counsel said a hundred years of trying to deal with these matters after the fact case by case had proved unsuccessful.

Rebuttal of Jesse W. Walters

Chief Justice Warren E. Burger: Mr. Walters.

Mr. Walters: Mr. Chief Justice, I think we'd gone forefeel and I think had I said listening that if we ask ourselves one question suppose the Rule 58 had simply and concisely provided that if elected you will take a leave of absence while you are in Atlanta, Georgia in the legislature earning another salary from another governmental unit.

Would anyone seriously contend that that rule was a standard practice or procedure with respect to voting or would it be obvious on its face that it was a rule, a standard practice or procedure with respect to employment of the Board of Education?

Justice Byron R. White: Well, could I ask you again, do you want to change your answer to my earlier question?

Mr. Walters: Maybe I misunderstood you, Mr. Justice White.

Justice Byron R. White: Well, I asked you if the state legislature had said, had passed this very rule and applicable to all public employment or to all school boards whether it would be a covered rule and you said it was.

Mr. Walters: Well, I misunderstood the question Mr. Justice White and --

Justice Byron R. White: You want to change your answer anyway.

Mr. Walters: If I did I would retract my answer and I would not say it was a standard practice or procedure with respect to voting and unless it is a standard practice or procedure with respect to voting.

Justice Byron R. White: I agree, I agree with you I just thought that you would earlier in the argument you would say if the set legislature had adopted this rule, that would be covered.

Justice Potter Stewart: He simply intended to say that the state legislature would have been a covered entity under Section 4.

Mr. Walters: There would be covered entity, yes sir, but all state law is just because it have covered entity do not have to be submitted to the Attorney General they have to be a state --

Justice Byron R. White: I'll accept your latest answer to the same question.

Mr. Walters: Thank you, Mr. Justice White.

Justice John Paul Stevens: Mr. Walters, supposing the rule increased the amount of filing fees for candidates, would that be a standard practice with respect to voting?

Mr. Walters: Oh I would have to answer that, Mr. Justice Stevens, that the Board of Education of Dougherty County could not -- could not.

Justice John Paul Stevens: No, no but would you agree that if the whatever -- whatever state entity had the authority to do it, you pass some rule that increase the filing fee and therefore made the candidate's choice of whether the run or not to run more difficult would that be a standard or practice with respect to --

Mr. Walters: Under the decisions of this Court, I would say, yes.

Justice John Paul Stevens: Well then, how is this different?

Mr. Walters: Because this is not -- it does not increase anything.

It says to a member who is contracted to perform services for Dougherty County.

Justice John Paul Stevens: You cannot earn $3,000.00 this fall if you run for office?

Mr. Walters: Of course it's not in the record and no one had said anything about it.

Justice John Paul Stevens: Well there's an affidavit in the record.

Mr. Walters: What about $500.00 a year that Mr. White had been making from this state legislature for his 45 days service not even Mr. White's counsel contend that they are entitled to recover the money for a leave of absence while he was there and this is an employment practice, no voting practice Mr. Justice Stevens, I submit.

Justice John Paul Stevens: Is it possible for him to practice both to be an employment practice and at the same time to be a standard practice effecting voting within the meeting?

Mr. Walters: I do not believe so.

Justice John Paul Stevens: I see.

Mr. Walters: Now, I would say in conclusion that in my judgment, the other limits of the applicability of the voting rights have been already reached and I said that the restrictions imposed by the Voting Rights Act on a limited number of selected southern states are unique in the history of this nation.

And one of the members of this Court has said that the pre-clearance requirement of the Act is a substantial departure from ordinary concepts of federal system, if encroachment upon state sovereignties is significant and undeniable.

Another has recently said that there's a need to bring a common sense approach to its applicability or application.

Justice Harry A. Blackmun: Those are arguments that you make to the Congress actually, Mr. Walters.

Mr. Walters: No sir, I think these are statements that have been made in decisions, Mr. Justice Blackmun.

Justice Harry A. Blackmun: No they're made in decisions but aren't they arguments you make to the Congress rather than to this Court.

Mr. Walters: Well, I certainly hope it would say that I certainly do not intend to make an argument and it is not proper before the Court and I would respond in that.

Justice Harry A. Blackmun: No, I didn't imply that but I just think they're policy questions, aren't they, basically, despite the fact that justices up here have made those utterances?

Mr. Walters: Well, I would say, Mr. Justice Blackmun, that a common sense approach to an Act of Congress and to a construction of an Act of Congress is a significant factor in a judicial determination of the intent of that Act and I would say that a common sense, after all said and done and all the record is over, a common sense look at Rule 58 will reveal that it is not a standard practice or procedure with respect to voting as Congress intended.

Congress, I do not believe intended for a situation such as this where you have to come to Washington to get clearance.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Print this transcript Transcript:

Argument of Jesse W. Walters

Chief Justice Warren E. Burger: We'll resume arguments now in pending case, Mr. Walters, you may proceed.

Mr. Jesse W. Walters: I believe that when we recessed on yesterday afternoon, I was discussing with the Court the Sheffield Case that arose in Sheffield, Alabama.

It is submitted that the answer to this inquiry is in the negative.

None of whom have any function whatsoever in connection with the political processes.

Justice Byron R. White: What if the state legislature passed a law that said that all employers must give an hour off for elections?

Mr. Jesse W. Walters: The state legislature passed such a law, Mr. Justice --

Justice Byron R. White: Would it have to be (Voice Overlap).

Mr. Jesse W. Walters: -- White.

Yes sir, because the state has the power over the electoral process.

Justice Byron R. White: Well then what if the legislature delegated the decision with respect to that to a school board?

Mr. Jesse W. Walters: I would say, Mr. Justice White, that if the legislature delegated that decision to the Board, then the Board would have power over the electoral process.

Justice Byron R. White: Alright, well then, what if there was no state law about it.

Mr. Jesse W. Walters: If the state law gave to the school board such power over the electoral process, under the Sheffield decision, I would say that the board would be a covered subdivision.

Mr. Jesse W. Walters: Yes, I think it is, Mr. Justice White.

Justice Byron R. White: Could you certainly -- you maybe quite right, but even so, it's hard to deny that the Board's rule would have an impact on who's going to run for office and who isn't.

Mr. Jesse W. Walters: Well, of course, Mr. Justice White, in response to that, I would have --

Justice Byron R. White: Maybe that isn't the test under the Section 5, but it does have the impact.

Mr. Jesse W. Walters: I would have to say that I know of no guaranteed federal right or state right that said a man in entitled to a position with the Board of Education.

Justice Byron R. White: What if the state -- what if the state legislature passed the same rule and says, No public employee may run for office?

Mr. Jesse W. Walters: I would say that the state being a covered subdivision under the Act and specifically under Section 4 (b) of the Act and under the Attorney General's designation of the State of Georgia as being covered by the Act --

Justice Byron R. White: And then what if the legislature delegated that part to a school board and said, but in the case of school boards, we'll leave it up to the individual school boards?

Mr. Jesse W. Walters: And then I think if the State of Georgia did that and delegated that power to the school boards, then the school board would be exercising control over some part of the electoral process.

Justice Byron R. White: Well then, but suppose the legislature doesn't pass such a law, but it's determined by a Court that the school board does have that power under the state law?

Mr. Jesse W. Walters: Well, of course, Mr. Justice White, I think in response to that inquiry that the question would arise as to whether or not under the laws of the State of Georgia, and frankly and truthfully, I do not believe that there's any law in the State of Georgia that gives to the Dougherty County Board of Education or any other Board of Education any control over any aspect --

Justice Byron R. White: Well, what if it were -- what if it's determined by a state court that the Board has that power?

Mr. Jesse W. Walters: I would certainly say that in response to that that it may be but this suit was brought and --

Justice Byron R. White: Then we can't keenly decide the case.

If they have the power under the state law, would you concede that it's covered by Section 5?

Mr. Jesse W. Walters: If -- if the Board of Education was charged under the state law with the responsibility of having some control or power over the electoral process, it's then I would have to say, under the decision in Sheffield, even though they may not register voters that they would be a covered subdivision, yes Your Honor.

Justice Potter Stewart: Well, Mr. Walters, is there any question at all that your client had the power to adopt the rule that it did adopt in this case?

Mr. Jesse W. Walters: Not in my opinion, no sir.

Justice Potter Stewart: Well then, doesn't the real issue become whether or not the rule that was adopted is a standard practice or a procedure with respect to voting?

Mr. Jesse W. Walters: No sir, with all due respect, Your Honor.

But I do not believe that Rule 58 is anything other a personnel rule.

Justice Potter Stewart: Well then, isn't the issue whether or not it is a standard practice or procedure with respect to voting?

Mr. Jesse W. Walters: No sir because (Voice Overlap) --

Chief Justice Warren E. Burger: Excuse me counsel, do you mean, your negative answer to the question or to the merits of the question?

Mr. Jesse W. Walters: I think I mean it to the merits of the question, Mr. Chief Justice.

He would not be asked anything.

He would automatically be qualified and would be permitted to run.

And we submit that this had absolutely nothing to do with voting.

Justice Potter Stewart: Wasn't that the real issue, since you concede that the school board had power under state law to adopt the rule it did adopt?

Mr. Jesse W. Walters: Yes, Your Honor, I don't -- I think it certainly if the issue is to whether or not the rule is a standard practice of --

Justice Byron R. White: But you have already also conceded that the state legislature adopted the same rule.

It is a standard and covered by Section 5.

Mr. Jesse W. Walters: Yes, because the state legislature could say, before you qualify for office.

Justice Byron R. White: Well, no.

I asked you if you have the state legislature said that no public employee way run for office, you say -- I thought you conceded that that would be covered by Section 5 because it was a standard.

Mr. Jesse W. Walters: Yes, I think so because as I said, the State of Georgia is specifically designated Under Section 4 (b) of the Act and by the Attorney General of state.

Chief Justice Warren E. Burger: It does have control of the electoral --

Mr. Jesse W. Walters: It does have absolute control in Georgia over the elections.

The Dougherty County Board of Education cannot enact any regulation --

Justice Potter Stewart: Well, it did and it did adopt this rule.

Mr. Jesse W. Walters: Yes sir, but we say --

Justice Potter Stewart: And there's no question of its power to do so.

Mr. Jesse W. Walters: No sir, I do not believe that there's any question of its power to adopt reasonable rules and regulations pertaining to its employees.

No, I do not believe there's any.

Mr. Jesse W. Walters: No sir.

I would not construe that as being a voting rule (Voice Overlap)

Justice William H. Rehnquist: That's simply saying you got to be there and perform your service if you're going to be paid.

Justice Potter Stewart: Wouldn't you agree that the -- whether that was adopted as a rule of the school board or adopted by -- as a law by the state legislature, the test would be the same?

Mr. Jesse W. Walters: I would not, Your Honor, because again, I have to go back to the fact that I concede that the State of Georgia does have control over the electoral process.

Justice Potter Stewart: Well, certainly.

Mr. Jesse W. Walters: No sir, if I understood Mr. Justice Renhquist's inquiry, it would not be a rule pertaining to a standard practice --.

Justice Potter Stewart: But that would be issue, wouldn't it?

Mr. Jesse W. Walters: But it would be a rule pertaining as to whether or not that man was paid --

Justice William H. Rehnquist: Well, that's what Justice Stewart's asking you?

Would such a rule be a standard practice --

Mr. Jesse W. Walters: No sir, not in my judgment.

Justice Byron R. White: And it would not be covered by Section 5 whether it was passed for the state legislature or the school board.

Justice Potter Stewart: In any event, that would be the question, wouldn't it?

Mr. Jesse W. Walters: No sir, I do not believe that would be --

They're two different animals, aren't they?

Mr. Jesse W. Walters: No sir, Mr. Justice Marshall, I had no --

Justice Thurgood Marshall: Well, why do you need the additional rule to limit it to his working for election?

Mr. Jesse W. Walters: If I may --

Justice Thurgood Marshall: Why don't you just pass a rule and said if he doesn't do his work, he doesn't get paid.

Mr. Jesse W. Walters: I think that this would have been, Mr. Justice Marshall, a answer to this without litigation.

And I think that the Board of Education would have been properly within its powers and authorities --

Justice Thurgood Marshall: Are you saying it's now within its authority.

Mr. Jesse W. Walters: Yes sir, but I say I think they would have been properly within their powers if Mr. White, upon election, and not serving any job for which he had contracted to have terminated his employment without any rule, without any regulation.

But the Board, I think, chose to deal with this matter in a more reasonable and moderate fashion.

And they prescribed simply and concisely the -- how a man could enter the political arena and continue in his employment with the Board of Education.

Justice Thurgood Marshall: Well could, under the present rules, is there anything that prevent a person in this man's position from working for a liquor store?

Mr. Jesse W. Walters: Is there anything that prevents him from working for a liquor store?

Justice Thurgood Marshall: Yes sir, from doing anything else.

Mr. Jesse W. Walters: Certainly, there's nothing in the rule that would prevent him from work --

Justice Thurgood Marshall: The only prevention is if you work for election.

Mr. Jesse W. Walters: Well, if I may, Mr. Justice Marshall, I think that the Board, when a contract with an employee are entitled to expect his full attention and full time to the duties he is contracted to perform.

Chief Justice Warren E. Burger: Are you saying that's an implied condition of his contract?

Mr. Jesse W. Walters: Yes I am, Mr. Chief Justice.

Justice Thurgood Marshall: Well then, you did --

Mr. Jesse W. Walters: And this maybe true but I -- that we -- I think we needed a rule to show that it would have spelled out to any employee then or in the future.

Justice Byron R. White: What if the [Inaudible] Section 5 there wasn't a change, but I didn't know you're contending that it wasn't a change?

Mr. Jesse W. Walters: Yes sir, I am contending that it was not a change.

Justice Byron R. White: And the legal decision below is against you on that?

Mr. Jesse W. Walters: Yes, I think that the legal decision in a three-judge court hold a point (Voice Overlap) with my expectation of the electoral process.

Justice Byron R. White: With respect to what Georgia law is that this was a change.

Mr. Jesse W. Walters: And I ask this question myself, what modification and what change?

Justice Byron R. White: Yes.

Mr. Jesse W. Walters: Now, the lower court decision says and if I may quote about imposing a financial laws on its employees who choose to become candidates, it make it more difficult for them to participate in the democratic process and consequently restricts the field from which the voters may select their representatives.

Now, this I think, is the holding of the lower court, and if this is what they say, is the modification --

Justice Lewis F. Powell: Mr. Walters.

Mr. Jesse W. Walters: Yes sir.

Justice Lewis F. Powell: May I interrupt you, Mr. White as I understand it, was assistant coordinator of student personnel services.

Mr. Jesse W. Walters: Correct, Your Honor, yes sir.

Justice Lewis F. Powell: What were his duties?

Mr. Jesse W. Walters: His duties were counseling of students, selecting their -- maybe their curriculum, principally counseling as I understand it Mr. Justice Powell.

Justice Lewis F. Powell: The Board had a coordinator and Mr. White was an assistant.

How many other assistants were they?

Mr. Jesse W. Walters: I do not know Mr. Justice Powell, I could certainly (Voice Overlap).

Justice Lewis F. Powell: It's not essential either way, I understand.

Mr. Jesse W. Walters: But I do not know how many others there were sir.

Thank you.

Chief Justice Warren E. Burger: Counsel, with the question due extensively, we'll enlarge your time five minutes and enlarge your friend's time, five minutes accordingly.

Mr. Jesse W. Walters: Alright.

Chief Justice Warren E. Burger: But they can divide it as they wish.

You may reserve it if you wish for rebuttal.

Mr. Jesse W. Walters: I would like to with the Court's permission.

Argument of John R. Myer

Chief Justice Warren E. Burger: Mr. Myer.

Mr. John R. Myer: Mr. Chief Justice and may it please the Court.

The statement of facts as presented by counsel for appellant is correct in so far as it goes.

I would, however, like to add certain additional facts that I think are relevant to the Court's inquiry.

Chief Justice Warren E. Burger: Does this make a difference?

Mr. John R. Myer: We think, Your Honor, the issue --

Chief Justice Warren E. Burger: Does this make a difference in this case?

Mr. John R. Myer: It makes a difference not in this case, but it does we think in terms of the substantive Section 5 question which if this had been submitted, is the inquiry of the Attorney General or the District Court of Columbia.

And we are suggesting this as well as certain other circumstances surrounding the adoption of the rule because it is apparent that there is a potential in this case.

And if that is the --

Justice Lewis F. Powell: Suppose there were no such circumstances, would this Rule 58 have to be pre-cleared?

Mr. John R. Myer: Yes Your Honor, it would.

Justice Lewis F. Powell: But why are you arguing the surrounding circumstances?

Mr. John R. Myer: Because this is simply is an illustration, I think, Your Honor of the kind of change that can be made in a circumstance which raises some suspicion without determining whether or not in fact it violates Section 5 standards of purpose or effect but rather in the context of this case, I think it is relevant that immediately upon announcing, the rule was adopted.

Justice Lewis F. Powell: If the only people who'd ever announced they wish to run had been White, would you be making the same --

Mr. John R. Myer: Mr. White was also, so far as any record show, the record is clear that he is the first also to ever announce to run.

Justice Lewis F. Powell: Right, I understand that.I was putting a different case to you.

Mr. John R. Myer: But the issue before the court below is not the substantive determination, it is a question of whether or not a Rule 58 is a covered change under Section 5 and (b) as the second question on the jurisdictional statement, whether or not the Dougherty County Board of Education is a covered entity.

Justice Lewis F. Powell: And you're saying that discriminatory intent or effect is immaterial for Section 5 or --?

Mr. John R. Myer: For Section 5 coverage question, that is correct although that is the nature of the inquiry which would be made upon submission to the Attorney General.

Justice Lewis F. Powell: Did you consider bring a 1983 suit rather than proceeding this way?

Mr. John R. Myer: Your Honor, the complaint is filed in five counts and there's a 1983 count, there is a Fourteenth Amendment due process and equal protection count as well as the Fifteenth Amendment count.

Your argument is to the potential for abuse would be just as good there as in the case of the Dougherty County Board of Education, wouldn't it?

Mr. John R. Myer: The only difference there, Your Honor, is that as a private employer, they're clearly not covered by Section 5, that is the Voting Rights Act only extends to those designated jurisdictions and as this Court has clarified in Sheffield, state actors within that designated jurisdiction, whether it is a state or a political subdivision --

Justice William H. Rehnquist: So potential for discrimination really isn't that any part of the statutory test, is it?

Mr. John R. Myer: Oh, I believe it is.

But it is only applicable to state actors, not to private sector of the country.

Justice William H. Rehnquist: And as a matter of statutory coverage.

Mr. John R. Myer: As a matter of what Congress intended when it adopted the Voting Rights Act of 1965.

Justice William H. Rehnquist: Well, so you say that, yes, it isn't enough that it be a standard plan or practice, it has to have a potential for discrimination?

Mr. John R. Myer: Well, that is the -- no, the question is whether the standard practice or procedure and that is the substantive determination that the Attorney General makes once it submitted it, that is whether it has a potential --

Justice William H. Rehnquist: But in deciding of whether it's to be submitted or not, is there any inquiry or not?

Mr. John R. Myer: No, the answer is no.

Now --

Justice Byron R. White: Is it your submission that any kind of an official rule that has some kind of an impact on an election or it's just a standard of practice?

Just any --

Mr. John R. Myer: Well --

Justice Byron R. White: I can see why I call them maybe a qualification for candidacy or something that this wasn't the qualification for candidacy.

Mr. John R. Myer: This was a qualification for candidacy in so far as public employees of Dougherty County Board of Education and that it impose a very substantial financial barrier.

Justice Byron R. White: I know, but there wasn't any -- but, there wasn't any disqualification from running imposed on them?

Mr. John R. Myer: No, that's correct.

There was a disincentive for running just as for example in Whitley, there were disincentives and there were increased barriers to qualifying as an independent candidate.

Justice Byron R. White: But if a school teacher went over and filed as a candidate, they wouldn't reject his papers because he was employed by the Board.

Mr. John R. Myer: That's correct, and indeed the school board's policy --

Justice Byron R. White: The school board might fire him, but I don't know.

Mr. John R. Myer: No, in fact, under the schools board's policy, they would not fire him --

Justice Byron R. White: They wouldn't fire him, they just (Voice Overlap).

Mr. John R. Myer: They require him to take leave even though during the time he was running, he was ready, able and willing to perform his contractual duties.

Now, suppose the record in this case or any case would show, that the campaign committee had provided the substitute for the salary, suppose that was shown in this case, would you be here?

Mr. John R. Myer: Yes sir, because I think that is an irrelevant factor in so far as to determining --

Chief Justice Warren E. Burger: He should get two salaries then, he should get the salary from his committee and a salary from the public also?

Mr. John R. Myer: Well, he should get the salary so long as he is certainly performing his duties and that for example, I think, suggests the question Mr. Justice Marshall asked of Mr. Walters, that is if instead of an electoral context, we had a liquor business that he was operating on the side, he could obviously have two incomes.

But I think the question of whether or not he would receive some supplemental in a particular case does not -- is not a relevant factor in determining --

Justice Byron R. White: But the question is whether he gets paid for no services, he wanted to perform the services and get paid for it.

Mr. John R. Myer: That is correct, that is correct and was ready and able to do so during the time that he was campaigning.

Justice Potter Stewart: Mr. Myers, you're addressing yourself now, I gather, to the first question presented, i.e. whether this rule is a standard practice or procedure with respect to voting?

Mr. John R. Myer: That is correct.

Justice Potter Stewart: Not to the second issue?

Mr. John R. Myer: That is correct.

Justice Potter Stewart: And that's the only issue to which you're addressing yourself?

Mr. John R. Myer: That is correct, exactly.

Justice Lewis F. Powell: Mr. Myer.

Mr. John R. Myer: Yes sir.

Justice Lewis F. Powell: When I've given you very much chance to argue your own case, I'll ask you one more question and then try to keep quiet.

Mr. John R. Myer: I'll answer any question of the Court.

Justice Lewis F. Powell: Right.

This goes back to something that you asked, I think your adversary was asked.

Mr. John R. Myer: Let me make sure I understand the hypothetical.

It is a state statute that says, During the time you are campaigning, in order to receive pay, you must be willing to work half-time?

Justice Lewis F. Powell: Yes.

Mr. John R. Myer: I think clearly that that is a change in the election law insofar as it sets forth standards, practices or procedures with respect to campaigning and offering for candidacy.

Justice Lewis F. Powell: Now, may I ask you a second question?

Justice Potter Stewart: With respect to voting.

Mr. John R. Myer: And it is -- and that as this Court has defined the voting language within Section 5 that encompasses candidacy.

Justice Lewis F. Powell: May I ask you another question to follow up on that one whether it violated my suggestion, I wouldn't ask you too many.

Let's assume that Attorney General in no circumstances decided to not to pre-clear.

Do you think the Congress of the United States intended any such result?

Mr. John R. Myer: Well, Mr. Justice Powell, I think that Congress intended and certainly, if there were any question in the 65 Act, the ratification of this Court's decision in Allen and the companion cases in both 1970 and 1975, make it abundantly clear that it's Congress' intention that this Act should apply in the most minor way.

And I think that where there is any alteration, as this Court has said, that has to be submitted.

Now, the Court has posed the question of whether or not, if the Attorney General objected and so that that state statute could to go in to effect, Congress intended that.

Chief Justice Warren E. Burger: How many people are affected by this rule Mr. Myer?

Mr. John R. Myer: Your Honor, it is not -- the record is not -- does not contain what the racial composition of the Dougherty County Board of Education is.If for example, however, and we do have statistic -- census information in the brief that show that in excess of 53% of those listed in the 1970 census were black.

Chief Justice Warren E. Burger: I'm talking about those who work for this Board under affected by this rule --

Mr. John R. Myer: Well --

Chief Justice Warren E. Burger: -- not the voting population.

Mr. John R. Myer: That I do not know.

Chief Justice Warren E. Burger: Is it likely that majority of them are whites?

Mr. John R. Myer: It is likely.

Chief Justice Warren E. Burger: Very likely?

Mr. John R. Myer: Correct.

Chief Justice Warren E. Burger: Well then, the rule has a greater impact on whites than on anyone else.

Mr. John R. Myer: Well, Mr. Chief Justice, that may be true except that I would have submit that the philosophy behind the kind remedy that Section 5 represents was not to focus on the discrimination issue alone, that is if there was a standard practice or procedure in effect in June of 1964 that is patently discriminatory, it escapes Section 5 inquiry.

And if subsequent to the effective date of the Act, any covered entity makes any change no matter how ameliorative or how discriminatory that change should be submitted.

Justice Thurgood Marshall: Mr. Myer, I want to take another hypothetical.

If Georgia passed and we now assumed that most of the employees, state employees are white in Georgia for the purpose of this question.

And the legislative passed an act saying that, No state employee can run for office, wouldn't that have to be cleared?

Mr. John R. Myer: It would, Your Honor if it represents --

Justice Thurgood Marshall: Is there any question?

Mr. John R. Myer: There is no question in my view if it represents a change from what was in effect, November 1, 1964.

Now, to return to Mr. --

Justice Potter Stewart: And then it's impact would be a matter for the Attorney General to determine.

Mr. John R. Myer: Under the substantive inquiry--

Justice Potter Stewart: Under the substantive inquiry that he makes.

Mr. John R. Myer: That is correct.

And they have done on a localized basis what clearly is the state did on a statewide basis would be submitted under the Act.

Justice John Paul Stevens: Mr. Myer, can I ask you a question?

You've got two issues, the standard or practice issue on whether this unit is covered and I'd like to direct your attention to the coverage of the school board.

Mr. John R. Myer: Yes sir.

Would that unit have to get clearance?

Mr. John R. Myer: No.

Justice John Paul Stevens: It's truly be a practice -- a standard of practice that have the same effect on a bit encourage and why would they have to clear it?

Mr. John R. Myer: At least in the hypothetical as you opposed it Mr. Justice Stevens, that would be a state law question and could in fact be challenged on the grounds that only the State Board of education--I mean the local board of education have--

So, he said, Our rule would be, if you run for election at fall, you're taking extra course in the spring and one less in the fall.

Mr. John R. Myer: Assuming arguendo that the social science department had the authority to do it.

Justice John Paul Stevens: Correct.

Mr. John R. Myer: Then, quite clearly, I think on the Sheffield --

Justice John Paul Stevens: You have to pre-clear.

Mr. John R. Myer: He had to submit.

Justice John Paul Stevens: Right.

Mr. John R. Myer: And that is as Sheffield determined the designation in 14 (c) (2) are related to designation.

Once designated any state actor within --

Justice John Paul Stevens: Supposing the coach of the football team says, you can be excused for practice on Friday, that have to be pre-cleared too?

Mr. John R. Myer: Well --

Justice John Paul Stevens: That the line coach doesn't have to show up on Friday, so he has and extra date to campaign.

Mr. John R. Myer: (Voice Overlap) that's correct, and as a state actor, if that altered any standard practice or procedure which affected and assuming that it was also a covered change, assuming that as well.

Justice John Paul Stevens: So you want to encourage him to run for office.

Mr. John R. Myer: And so that the only inquiry is the entity, if that entity through any of the subagents has made a change, that would have to be under the operating --

Justice John Paul Stevens: Basically, that's what Sheffield holds, isn't it?

Mr. John R. Myer: And that's what Sheffield holds at any state actor, exercising control within a designated jurisdiction must submit.Now, and I think --

Mr. John R. Myer: Well, again, assuming that in the distribution of the power of control and regulation over fire department it was that delegated.

Justice Potter Stewart: (Voice Overlap) I assume that the head of the firehouse has the authority to do that.

Mr. John R. Myer: That's correct, again, so long as the change is a standard -- is a covered change, any state actor under this Court's decision in Sheffield must submit and I think that that is a sound rule because in this case, indeed, in Dougherty County, there is the decision that's decided Paige versus Gray.

And where we have enacted at the state law level would be covered to say that the entity ought escape it because it is only at the local level, I think would defeat the purposes --

Justice Potter Stewart: Of course we have to amend my example because you don't really have to pre-clear.

He could come to the District of Columbia and file a lawsuit and get authority, couldn't he?

Mr. John R. Myer: Well, that's correct, although --

Justice Potter Stewart: There's an option always.

Mr. John R. Myer: He always has that option and I would say that the burden in Section 5, Congress intended to shift the burden.

That is a case by case approach, had not work for a hundred years.

Mr. John R. Myer: Well, that's correct.In so far as --

Justice William H. Rehnquist: So really, it doesn't make any difference that they had been slow in eliminating segregation in Dougherty County as far as the legal test is --

Mr. John R. Myer: That is correct.

That is correct.

The legal test would be if you are state actor and assuming that it's a covered change, it must be pretty cleared.

Justice Potter Stewart: So then the basic issue is whether or not this is a covered changed?

Mr. John R. Myer: That is correct and we--

Justice Potter Stewart: If your submission is correct, because theirs is no question about the fact that the school board is a state agency?

Mr. John R. Myer: That is correct and now it's a political subdivision.

Justice Lewis F. Powell: Mr. Myer.

Mr. Myer.

Mr. John R. Myer: Yes sir.

Mr. John R. Myer: Your Honor, I would submit that pending before this Court right now on jurisdictional statements filed in July is a jurisdictional statement by both the Wilkes County, Georgia Board of Education and the Wilkes County Board of Commissioners of roads and revenues where pursuant to Section 5 case, private cases, they filed changes, state law changes from district at large.

The 1970 census shows that Wilkes County, Georgia has a population of 8000 people.

So, I think, as a practical matter, my answer is yes and those are certainly examples in the State of Georgia.

Justice Lewis F. Powell: Do you know how many of these cases are submitted to the Attorney General this year?

Mr. John R. Myer: I do not have the current figures as I recall the testimony in this 75 extension.

It was approximately a thousand a year and I'm sure that Mr. Wallace may or may will have that information.

Justice Lewis F. Powell: And that will be three or four working day or more, wouldn't it?

Mr. John R. Myer: Well, that's right and I think --

Justice Lewis F. Powell: You think it's feasible for all of those who come to District of Columbia.

I know they have the right under law and I know Congress passed it and you didn't but you said it was feasible.

Mr. John R. Myer: Oh well, clearly and I think Mr. Wallace may have the figures, I would assume that 99 % of the submissions made to the Attorney General are approved, that is they are nondiscriminatory, so that we are not talking about three lawsuits a day and indeed the number of cases brought in the District of Columbia I'm sure is relatively small just as for example the number of section or the number of cases that the Attorney General has brought enforcing Section 5 that is prior between 1970 and the testimony of 1975, there were 26 lawsuits brought by the Attorney General to enforced the Voting Rights Act, so that the burden I think on the Courts has at least empirically not been shown and I'm sure that at some point if Congress were to be convinced to that as they will have the opportunity in 1982 that alteration can be made.

And that insofar as this case is concerned that provides the current of standard or rule to set in this case.

That is where the action of directly addresses the electoral process then at least, well, that's not the final line, that's as far as this Court needs to go.

Justice Lewis F. Powell: Mr. Myer, let me ask you another hypothetical, it appears to me.

I assume that would be covered, would it?

Mr. John R. Myer: Absolutely, and even if for example in the sanitation department if the majority of the workers there were black.

Justice Lewis F. Powell: Suppose -- well, forgetting the black and I suppose it just let them off an hour to vote, they hadn't done that before, the sanitation department there.

Mr. John R. Myer: I think, technically that would be submitted, Your Honor.

Justice Lewis F. Powell: So the candidate, opposing candidate feels that most of those people driving the trucks would have to vote for his opponent though.

I suppose he could challenge it.

Mr. John R. Myer: Indeed he could, indeed he could.

Mr. John R. Myer: Well Section 5 --

Justice Byron R. White: There are any other cases just like the current.

Mr. John R. Myer: This is the first case coming up like this, there is at least to my knowledge but Section 5, Mr. Justice White, does not look at the degree of control that is if you begin to talk about control moving a polling place 25 feet is not a major impact.

Justice Byron R. White: I know but you can read Section 5 as saying, it's not that it.

We're really dealing with laws that are really intended to deal directly with the electoral process.

The voting or the electoral process and if some school board just for efficiency says, Look you got a work and you can have an hour off, then why should that be covered?

Mr. John R. Myer: Well, I think that your question was Section 5 was intended to deal with those changes which addressed the electoral process and my response is at least in so far of Rule 58 is concerned --

Justice Byron R. White: Right, it covers this one.

That maybe and say if you're going to make a rule on how much time you have off for voting, they do -- they're really dealing directly with the voting.

This one doesn't.

Mr. John R. Myer: Well, I think --

Justice Byron R. White: This case doesn't do that.It's outside of that process.

Mr. John R. Myer: It directly deals with voting as voting has been defined by this Court.

Justice Byron R. White: How does it directly deal with it?

Mr. John R. Myer: Well, this Court has defined the language of the term voting.

Justice Byron R. White: Now, how does it directly deal with candidacy?

Mr. John R. Myer: Because it imposes a very substantial economic barrier to --

Justice Byron R. White: But it doesn't and impose a qualification.

Mr. John R. Myer: It does not impose a technical qualification as the prior colloquy involve of disqualifying.

However --

Justice Byron R. White: But it is intended to disqualify.

Either as far as you can tell it's intended to -- it's intended to do and promote the efficiency of the service.

Mr. John R. Myer: Well, although that goes to the substantive question, Mr. White.

It seems to me it may well be intended to do that.

Now, I'm not speaking now of the campaigning, I'm speaking of his serving for the 90 days or whatever it maybe in Georgia in the legislature.

Would you say that rule would have to be cleared if they applied it to people who wanted to take three months off to go to the university or three months off to sit in the legislature?

Mr. John R. Myer: I think that in those circumstances where it is not directly affect, it may will be that, that would not be covered.

Chief Justice Warren E. Burger: Well, doesn't it have the same effect on this man?

Mr. John R. Myer: Well, except that where standards with directly addresses and may and constitute change then those would be covered and indeed if that will also cover if instead of directly addressing it if it did it in an across the board fashion, I think that in circumstances, that also would have to be submitted and there are number of hypotheticals that I think would have to be determined on a case by case basis.

Justice Thurgood Marshall: And isn't also true that Attorney General might learn to do it.

Mr. John R. Myer: All we are saying Mr. Justice Marshall is that it ought to be submitted and that substantive inquiry is one the Attorney General makes.

Justice Thurgood Marshall: And he could very well too find.

Mr. John R. Myer: And he could may well approve it as he does most of the submissions which he receives.

Thank you.

Argument of Lawrence G. Wallace

Chief Justice Warren E. Burger: Mr. Wallace.

Mr. Lawrence G. Wallace: Mr. Chief Justice and may it please the Court.

The problem in this case came to our attention as a result of the complaint filed on behalf of Mr. White and we took a look at it.

Justice William H. Rehnquist: Mr. Wallace, what if the school board did have this rule in 1965 and then abolished it, so that and they admitted easier for candidates to run.

Under your co-counsel's submission that nonetheless would have had been submitted at the Justice Department.

Mr. Lawrence G. Wallace: Of course the result might be different but the question is whether this is a rule covered by Section 5.

Justice William H. Rehnquist: So really, it doesn't make much difference whether it deters someone or encourages them.

Mr. Lawrence G. Wallace: Well, what makes a difference as we view the purpose of Section 5 as explained by the Court and the quotation that I started my argument with, what makes a difference is the potential impact on the reality of affecting voting rights and we have to look to see what is involved here and compare it with the experiences that we've had under Section 5 which is what I'm attempting to do here for the benefit of the Court.

Justice Lewis F. Powell: Mr. Wallace, suppose he'd been the riches man in the county, what difference would it have made?

Mr. Lawrence G. Wallace: We're looking at potential impact and --

Mr. Lawrence G. Wallace: Of Course.

Justice Lewis F. Powell: And what the consequences were.

Mr. Lawrence G. Wallace: I'm merely trying to follow this Court's admonition in Georgia against the United States that the Act is to be determined with regard to the realities of changes in voting rights as they affect Negro voters and candidates and --

Justice William J. Brennan: We view each case then on its facts to determine what the reality is.

Mr. Lawrence G. Wallace: We're trying to determine whether this is a change that's covered and in order to determine whether it's a change that's covered, we first look to see what kind of a change it is and compare it with other changes that we know are within the coverage of the Act that we have been dealing with and increases in filing fees were singled out for mention in the 1975 Committee Reports in both the House and the Senate as examples of changes for which the Attorney General has properly interposed objections under the Voting Rights Act which Congress was extending.

Mr. Lawrence G. Wallace: I'm not attempting to argue the merits --

Justice Potter Stewart: And that's the issue before us not the merits.

Mr. Lawrence G. Wallace: I understand.

I'm not attempting to argue the merits, Mr. Justice.I'm merely trying to see whether this is --

Justice Potter Stewart: Well, we wonder if it has effect on Negro voters is a matter for the Attorney General to decide if this is required to be submitted to him under the statute.

Mr. Lawrence G. Wallace: That is correct.

Justice Potter Stewart: But we are concerned -- we're concerned with that question not with the merits of this.

Mr. Lawrence G. Wallace: That is correct and the statute applies to changes as they, in reality, affect opportunities to exercise voting rights and to run for office and we look at Department of Justice records with respect to increases in filing fees shortly before the fact that we had to interpose objections to some of them was approved by both committees of Congress as proper administration of the Voting Rights Act to see what kinds of changes, what kinds of financial burdens, had required us in our view to interpose objections because of the burdens that they placed on the ability of individuals to run for office and what we saw as a few examples in 1973 is that we saw fit to interpose an objection to an increase in Ocilla, Georgia of the filing fee to run for mayor from $10.00 to $125.00 and to run for the council from $10.00 to $100.00.

We had similar examples --

Justice Potter Stewart: Wouldn't the reduction on the filing fee come equally within it?

Mr. Lawrence G. Wallace: Of course.

It's true that this is not in form a filing fee but the economic impact on the face of it is very similar as a disincentive to run for office.

Justice Lewis F. Powell: It will be equally obvious if they only required 25 cents, wouldn't it?

Mr. Lawrence G. Wallace: That is correct, that is correct but the point is that Congress -- the fundamental premise of the Voting Rights Act is that Congress believed it could not anticipate the form that new obstacles to a voting rights and to running for office might take and therefore as the Court said in Sheffield, it shifted the advantages of time and inertia from the perpetrators of discrimination to its victims.

Chief Justice Warren E. Burger: If this rule have been in effect since 1890, let us say, there wouldn't be in the Section 5 case at all, would there?

Mr. Lawrence G. Wallace: If the rule had been in effect, of course not --

Chief Justice Warren E. Burger: You might have relief somewhere else you would suggest but you wouldn't have any hearing.

Mr. Lawrence G. Wallace: But that is correct.

Chief Justice Warren E. Burger: But if they then abolish the rule you have set told us that it could have to be submitted.

Mr. Lawrence G. Wallace: Well, there are many submissions that are approved very readily.

The question was asked what number of submissions are we getting.

Of course there are many routine submissions.

Justice Lewis F. Powell: Mr. Wallace, the Attorney General has to pass on 2000 of this a year?

Mr. Lawrence G. Wallace: That is correct, that is the way the numbers are running and --

Justice Lewis F. Powell: And that -- that has to be done with all of the other important business of Attorney General of the United States has to transact.

Mr. Lawrence G. Wallace: The Voting Rights Act section of the civil rights division of the Department of Justice is staffed to implement the policies reflected in this Act which has been one of the most successful civil rights acts in history and the fact that the percentage of objections interposed this small, doesn't detract from the fact that the Act has resulted in great changes in voting and candidacy in the covered jurisdictions and where the objections are interposed, they often amount to very important safeguards whereas my co-counsel said a hundred years of trying to deal with these matters after the fact case by case had proved unsuccessful.

Rebuttal of Jesse W. Walters

Chief Justice Warren E. Burger: Mr. Walters.

Mr. Jesse W. Walters: Mr. Chief Justice, I think we'd gone forefeel and I think had I said listening that if we ask ourselves one question suppose the Rule 58 had simply and concisely provided that if elected you will take a leave of absence while you are in Atlanta, Georgia in the legislature earning another salary from another governmental unit.

Justice Byron R. White: Well, could I ask you again, do you want to change your answer to my earlier question?

Mr. Jesse W. Walters: Maybe I misunderstood you, Mr. Justice White.

Mr. Jesse W. Walters: Well, I misunderstood the question Mr. Justice White and --

Justice Byron R. White: You want to change your answer anyway.

Mr. Jesse W. Walters: If I did I would retract my answer and I would not say it was a standard practice or procedure with respect to voting and unless it is a standard practice or procedure with respect to voting.

Justice Byron R. White: I agree, I agree with you I just thought that you would earlier in the argument you would say if the set legislature had adopted this rule, that would be covered.

Justice Potter Stewart: He simply intended to say that the state legislature would have been a covered entity under Section 4.

Mr. Jesse W. Walters: There would be covered entity, yes sir, but all state law is just because it have covered entity do not have to be submitted to the Attorney General they have to be a state --

Justice Byron R. White: I'll accept your latest answer to the same question.

Mr. Jesse W. Walters: Thank you, Mr. Justice White.

Justice John Paul Stevens: Mr. Walters, supposing the rule increased the amount of filing fees for candidates, would that be a standard practice with respect to voting?

Mr. Jesse W. Walters: Oh I would have to answer that, Mr. Justice Stevens, that the Board of Education of Dougherty County could not -- could not.

Mr. Jesse W. Walters: Under the decisions of this Court, I would say, yes.

Justice John Paul Stevens: Well then, how is this different?

Mr. Jesse W. Walters: Because this is not -- it does not increase anything.

It says to a member who is contracted to perform services for Dougherty County.

Justice John Paul Stevens: You cannot earn $3,000.00 this fall if you run for office?

Mr. Jesse W. Walters: Of course it's not in the record and no one had said anything about it.

Justice John Paul Stevens: Well there's an affidavit in the record.

Mr. Jesse W. Walters: What about $500.00 a year that Mr. White had been making from this state legislature for his 45 days service not even Mr. White's counsel contend that they are entitled to recover the money for a leave of absence while he was there and this is an employment practice, no voting practice Mr. Justice Stevens, I submit.

Justice John Paul Stevens: Is it possible for him to practice both to be an employment practice and at the same time to be a standard practice effecting voting within the meeting?

Mr. Jesse W. Walters: I do not believe so.

Justice John Paul Stevens: I see.

Mr. Jesse W. Walters: Now, I would say in conclusion that in my judgment, the other limits of the applicability of the voting rights have been already reached and I said that the restrictions imposed by the Voting Rights Act on a limited number of selected southern states are unique in the history of this nation.

Another has recently said that there's a need to bring a common sense approach to its applicability or application.

Justice Harry A. Blackmun: Those are arguments that you make to the Congress actually, Mr. Walters.

Mr. Jesse W. Walters: No sir, I think these are statements that have been made in decisions, Mr. Justice Blackmun.

Justice Harry A. Blackmun: No they're made in decisions but aren't they arguments you make to the Congress rather than to this Court.

Mr. Jesse W. Walters: Well, I certainly hope it would say that I certainly do not intend to make an argument and it is not proper before the Court and I would respond in that.

Justice Harry A. Blackmun: No, I didn't imply that but I just think they're policy questions, aren't they, basically, despite the fact that justices up here have made those utterances?

Mr. Jesse W. Walters: Well, I would say, Mr. Justice Blackmun, that a common sense approach to an Act of Congress and to a construction of an Act of Congress is a significant factor in a judicial determination of the intent of that Act and I would say that a common sense, after all said and done and all the record is over, a common sense look at Rule 58 will reveal that it is not a standard practice or procedure with respect to voting as Congress intended.

Congress, I do not believe intended for a situation such as this where you have to come to Washington to get clearance.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

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DOUGHERTY COUNTY BOARD OF EDUCATION v. WHITE. The Oyez Project at IIT Chicago-Kent College of Law. 27 April 2013. <http://www.oyez.org/cases/1970-1979/1978/1978_77_120>.

DOUGHERTY COUNTY BOARD OF EDUCATION v. WHITE, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1970-1979/1978/1978_77_120 (last visited April 27, 2013).

"DOUGHERTY COUNTY BOARD OF EDUCATION v. WHITE," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 27, 2013, http://www.oyez.org/cases/1970-1979/1978/1978_77_120.

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DOUGHERTY COUNTY BOARD OF EDUCATION v. WHITE