PRESLEY v. ETOWAH COUNTY COMMISSION

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Argument of Edward Still

Chief Justice Rehnquist: We'll hear argument next in 90-711, Lawrence Presley v. Etowah County Commission, Peter Mack v. Russell County Commission.

Mr. Still.

Mr. Still: Thank you.

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

This case presents the question, under section 5 of the Voting Rights Act, whether a county must submit for preclearance a transfer of power away from an individual county commissioner to either a white majority county commission or an official appointed by that county commission.

We contend that these changes must be submitted, because they affect the power of voters to elect commissioners who can respond to citizens' wishes.

In Etowah County, this transfer occurred immediately after the election of Lawrence Presley, the first black county commissioner in the county's history, and therefore diminished the power of that black county commissioner.

This, in turn, affected the power of the black voters in his district to control roadwork in their particular district.

In the South, roads have traditionally been the main concern of county commissions.

The road commissioner's responsiveness to his constituents is judged by how well he handles their complaints and concerns about the roadwork.

Unknown Speaker: Mr. Still, these two counties are not adjacent, are they?

Mr. Still: No, sir, they are not.

Unknown Speaker: One is in, where, northeast, and the other one is on the east side?

Mr. Still: On the eastern border, yes, sir.

One of them is Phenix City and the other is Gadsden.

If you look on a map, that's the easy way to find them.

Unknown Speaker: I'm glad to know how to pronounce the one county's name.

I--

Mr. Still: Yes, sir.

It... it's an old Indian name, and it gets mispronounced quite often.

Unknown Speaker: --How do you pronounce it?

Mr. Still: Etowah.

Unknown Speaker: Etowah.

Mr. Still: The--

Unknown Speaker: What does it mean?

Mr. Still: --I have no idea.

When the Etowah County Commission transferred the power to control roadwork from the individual county commissioners to the whole commission, it assured two things.

First of all, that the white voters in Commissioner Presley's district would not have to go to a black official to talk about their problems, and secondly that black voters would still have to come to white officials... in this case a commission with a white majority... to talk about their roads.

Unknown Speaker: Could you tell me, how many votes did it take to pass the common fund resolution in Etowah County?

Mr. Still: It took a majority of the six members, and so it would have taken four votes, or the chairman could have broken a tie of three, I believe.

Unknown Speaker: And a total of six?

Mr. Still: There's a total of six, but there's a seventh member who is a nonvoting chairman, and I believe he has a tiebreaking power, so if they tie 3 to 3--

Unknown Speaker: All right, then I take it the same answer to repeal the resolution... same vote.

Mr. Still: --That's correct, it would be.

In Russell County, the... the transfer of power occurred before blacks were elected, but in this case the county is roughly 40 percent black.

In 1979, when the county adopted what's called the county unit system, which allows the county engineer to control all the roadwork as an entire unit in the county.

Several nearby jurisdictions in Alabama had already been forced to go to single-member districts and had elected blacks.

The handwriting was on the wall that single-member districts and black elected officials were coming to Russell County.

Unknown Speaker: Can the board fire the engineer?

Mr. Still: I believe he's a civil service employee, sir.

They'd have to have cause, but they can fire him in that sense.

As this Court unanimously found in Hunter v. Underwood, the president of the 1901 Alabama Constitutional Convention said the purpose of that convention was to establish white supremacy in this State.

We believe these changes perpetuate a kind of white supremacy which prevents blacks from having any real power over white constituents.

These changes are exactly the type that Congress intended to cover when it passed section 5 of the Voting Rights Act.

To understand section 5, we think you've got to understand the circumstances that led to its passage.

This Court in 1965 in South Carolina v. Katzenbach described the situation.

The southern States had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating black political powerlessness in the face of adverse Federal court decrees.

Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies contained in the Voting Rights Act itself, so Congress passed section 5 of the Voting Rights Act to make sure that these sorts of changes wouldn't continue to be brought along every time some stratagem was knocked down.

Section 5 is supposed to change the balance of power.

It's supposed to put--

Unknown Speaker: Well, regardless of what it's supposed to do, what it says is that you have to clear any voting qualification or prerequisite to voting or standard practice or procedure with respect to voting, so what your burden is, in this case, is to say that changing the responsibilities of one of the members of the county's officership is a qualification or prerequisite to voting or standard practice or procedure with respect to voting.

Now, you can go under section 2, if it was done for a discriminatory motive, right?

Mr. Still: --That's correct, but section 5--

Unknown Speaker: But you're talking about going under section 5 and requiring it to be precleared as a standard practice or procedure with respect to voting.

I must say, I would never in my wildest dream imagine that that qualified under that language.

Mr. Still: --Well, section 5 was designed to get at new changes that were made to stop those new discriminatory changes from being made, and section 2 was designed to get at those that happened to slip by that and the preexisting ones.

Unknown Speaker: But not all changes, only a change of a standard practice or procedure with respect to voting.

Mr. Still: That's correct, and section 14 defines voting as... as encompassing all those things necessary to make the vote effective, and one of the things necessary to make the vote effective is that when you elect a representative or a county commissioner, he be able to do something... have some power to do something.

Unknown Speaker: That is necessary to make the vote effective?

No, indeed.

My vote is just as effective.

Mr. Still: But the vote is effective--

Unknown Speaker: You say... you're saying my vote becomes less effective somehow when... when the Congress takes away some powers that the President had before, that they... they have made my vote less effective?

Mr. Still: --In... in terms of electing the President, but in this... in this sense we're talking about a county commissioner, and if once blacks get the vote and get single-member districts so they can elect county commissioners of their choice, then they find that those county commissioners can't do anything for them, they've had the value of their vote affected.

Unknown Speaker: I understand that there has been a change, and I understand that the change may well have a discriminatory motivation, but I don't see how it is a change with respect to voting.

Mr. Still: Because I think if it's... if it's covered by section 2 it could just as well be covered by section 5, if it's a change since 1964.

Both of them are part of the Voting Rights Act.

Both of them use the same definition of voting.

If it affects voting, and it affects something necessary to make the vote effective, then it affects the right to vote under section 14 of the Voting Rights Act.

Unknown Speaker: Well, I guess under your theory any... any reduction in funding, a lesser appropriation, would also qualify for a section 5 approval.

Mr. Still: Some reductions in funding might be covered by section 5 if they have... if they affect voting, but we do not believe that you can draw a line there.

Unknown Speaker: Well, from what you say it would seem to me that any reduction in funding of a particular office would be said to affect voting in a covered jurisdiction, and yet I... it's just almost inconceivable to think of the flood of actions that would have to be reviewed if your theory is correct, that that also constitutes a change in voting practice or procedure.

Mr. Still: Well, Congress defined voting in a very broad way here, because they had seen that the South and other covered jurisdictions had continued to use various sorts of stratagems.

If the white primary was declared unconstitutional, they adopted a new property requirement or a new literacy test, so that there was always something else, and in order--

Unknown Speaker: But those do relate to voting, of course, and we're getting much further afield when we talk about a drop in funding or a cut in the budget or whatever.

Mr. Still: --Well, Etowah County, for instance, in their brief in this case argued that it would be pointless to require this to be precleared because the State could always achieve the same result some other way, and our point is that section 5 is written in a broad way, with... especially with the definition found in section 14, that is designed to get at changes which have a discriminatory impact on the... the rights of people to vote, to have their vote counted effectively.

I think you... I think in any case involving a budget you'd probably have to look at a lot of different circumstances to determine whether or not that had an effect on the... the electoral power on the people eventually, or whether it was just sort of a routine change in a budget.

A budget... a new budget is adopted every year.

Unknown Speaker: Do you take this--

--But isn't your test that if you can imagine a set of circumstances in which it would be racially discriminatory then there has to be preclearance?

Mr. Still: That's correct.

If you can--

Unknown Speaker: Well, any time you cut an executive's budget, he has less authority, so any budget-cutting has to be submitted to the Attorney General.

Mr. Still: --Well, I would suggest not every time you cut a... cut a budget.

For instance--

Unknown Speaker: I don't see--

Mr. Still: --You might have a general retrenchment, everybody gets a 10 percent across the board cut, and this particular official gets a 10 percent cut as well.

That's a decrease in the budget, but that doesn't necessarily affect his electoral power.

But if you took the example... if you took the example that the sheriff's budget had always been $ 10, 000, 000 in a particular county, and suddenly, just as soon as a black got elected, they cut the sheriff's budget to $1, 000, 000 and said well, you've just got to make up the rest someplace else, now that would be the kind of change that certainly would have to be precleared, and I would suggest for that reason we can't draw the line and say, oh, well, budgets... we're never going look at budgets, because if you say, we're never going to look at budgets--

Unknown Speaker: --Well, but... but your test is, then you have to look at all budgets.

Mr. Still: --Then all budgets should probably have to be precleared, but as a practical matter, only the ones which have an effect on voting, and we have to keep going back to whether it has an effect on voting, are the ones that are going to... that are going to be submitted.

If it doesn't affect--

Unknown Speaker: Well, but it's almost backwards, isn't it?

I thought what you were saying was that any time a budget cut affects the power of an elected office, then the budget cut has an effect on voting.

Mr. Still: --I was suggesting that there are some circumstances in which it would affect the electoral power of the citizens, of the voters, and so therefore that change certainly would have to be precleared, and for that reason I don't think that we can exclude the class of events called budget adoption from coverage of section 5, but it only has to be precleared if it affects voting--

Unknown Speaker: In--

Mr. Still: --So we can... I think we can say that here's a class of event, sometimes it affects voting and sometimes don't--

Unknown Speaker: --And it affects--

Mr. Still: --But we can't say that it never did.

Unknown Speaker: --It affects voting when?

Mr. Still: It affects voting when... I gave as... as a hypothetical when a newly-elected black sheriff finds his budget cut by 90 percent, and I would say that that would be fairly clear.

Unknown Speaker: And that... that's because the people who voted to elect that sheriff are now getting a sheriff who has less... less money to fund his office than the... presumably the white sheriff who was there before.

Mr. Still: That's correct, because in that kind of situation--

Unknown Speaker: Well, suppose it were a 10 percent budget cut?

Now, presumably that has to be precleared as well.

I mean, we're... we're told that the significance of the amount or the change is not important.

We don't look to that.

Mr. Still: --Well, I think what you've got to look at is if there was a 10 percent change.

First of all, the jurisdiction has two burdens here.

They have to demonstrate that there is no purpose, there's no intent to discriminate, and secondly that it will not have the effect of discriminating against people on the basis of their race, so it could be that a 10 percent cut was carried out for a racial intent because there's a black sheriff that's just been elected.

Unknown Speaker: Yeah, well, I'm just trying to find out what has to be submitted to the Attorney General, and presumably on your theory every budget change--

Mr. Still: Well, I would suggest that we... we should look also at what sort of... what sort of actions the jurisdiction takes to make the submission.

They make a submission by writing a letter to the Attorney General of the United States, and the Attorney General writes a letter back saying, I interpose no objection.

In between--

Unknown Speaker: --Well, you have... it's a 60-day waiting period, is it?

Mr. Still: --That's correct.

Unknown Speaker: So you have a natural disaster in a State, and the... the jurisdiction has to transfer money from some agency to another to provide for emergency relief... let's say flood relief... but can't do it because it has to wait 60 days--

Mr. Still: The Attorney General doesn't have--

Unknown Speaker: --And it's a budget cut.

Mr. Still: --The Attorney General doesn't have to take 60 days.

He took 36 hours, I think it was, with New York City's districting plan that was adopted this summer or last spring.

Unknown Speaker: But you still haven't, at least to my satisfaction, answered the question of what is your test for budget submissions, and it seems to me that, as Justice O'Connor suggests, every budget cut has to be submitted.

Mr. Still: I suggest that if--

Unknown Speaker: And then you're going to say, well, the Attorney General might, because of a change of letters, quickly approve it, but the point is whether or not there's a statutory requirement for preclearance, and it seems to me that you must answer the question yes, based on your theory of this case.

Mr. Still: --I think that... I think what we would have to say is that you could not exclude budgets from the type of things that have to be submitted for preclearance, and so if they... if a budget in a particular case--

Unknown Speaker: Well, do you mind if I rephrase that as saying that you must include them?

Mr. Still: --That's right, you must include them.

The district court in this particular case used the... this Court's potential for discrimination test to create exemptions from section 5 coverage.

Specifically, in Etowah County they held that the reallocation of authority that was embodied in the Common Fund Resolution was in practical terms insignificant in comparison with the entire commission's authority both before and after the disputed change to allocate funds among the various districts, but the category of things being insignificant or small changes has never before been seen in the cases of this Court.

Insignificant or small changes still have the potential for discrimination.

For instance, the transfer of a polling place in Perkins v. Matthews has the potential for... for discrimination, and it has to be precleared whether the polling place is being moved across the street or to the other side of the district.

In Dougherty County v. White, there were changes in personnel regulations that affected candidates.

In City of Lockhart v. The United States, the change was the change in the number of the members of the governing body of the city from three to five, and this Court held, well, that was changing the amount of power each individual member of that body held, and in City of Pleasant Grove v. United States--

Unknown Speaker: It also changed who you voted for.

I mean, all the other examples you mentioned actually concerned the voting process... the place of voting, and so forth.

That last one didn't relate to the... to the process of voting but it did relate to who you voted for.

Mr. Still: --It did--

Unknown Speaker: What you're proposing now is going yet another step that neither relates to the manner of voting or to who you voted for, but to the powers of the person for whom you voted.

You'll keep voting for the same person, but he's going to have different powers.

I mean, once you... once you take that last step, it seems to me there's... there's no end of what has to be submitted for clearance.

Mr. Still: --Well, I think we still have got to look at the... at the touchstone here of the potential for discrimination.

In--

Unknown Speaker: No.

The touchstone is the language of the statute, which says, with respect to voting.

Isn't that the touchstone?

Mr. Still: --Yes, it should be, and the... and the way in which--

Unknown Speaker: It's not a freewheeling inquiry into... into discrimination.

Mr. Still: --It... if it affects... if it affects voting, then it is covered by the statute, and the gloss that this Court has put on it is things which have the potential for discrimination, and for instance, in Pleasant Grove you were dealing with a situation where it was expanding the city limits to include uninhabited territory.

Nobody was going to vote, necessarily.

It might be for ever and ever into the future, no one was going to vote.

So the change there was about the potential for discrimination.

I would ask the Court... if it please the Court I would ask that the rest of my time be reserved for rebuttal.

Thank you.

Unknown Speaker: Very well, Mr. Still.

Mr. Long, we'll hear from you.

Argument of Robert A. Long, Jr.

Mr. Long: Thank you, Mr. Chief Justice, and may it please the Court:

If minority voters elect a representative of their choice for the first time and the jurisdiction responds by stripping that official of all power, then the minority citizens' vote for that official has been rendered a nullity, in the language of 42 U.S.C. 1973(c), their votes are not effective, so we do think that a transfer of decision making authority to or from an elected official is within the scope of section 5.

Unknown Speaker: Excuse me.

Their votes are effective.

They voted for this person.

That person is in office.

Mr. Long: Well, Justice Scalia, we think that is--

Unknown Speaker: I mean, we're not dealing with poetry here.

We're dealing with a... with a statute.

Are their votes rendered ineffective?

They're not rendered ineffective.

Mr. Long: --Well, we think citizens do not simply cast votes, they cast votes for officials who will make decisions of Government, and... and a view of voting in elections, that it simply involves going into a booth and casting a vote is, we think, much too narrow.

That's the view that obtained in the old Communist regimes, where everyone participated in the elections... the turnout was over 99 percent... but the voting meant absolutely nothing.

It was ineffective.

Unknown Speaker: Your rule, I take it, would apply to statewide offices, too, if one responsibility were shifted to the treasurer to the auditor, saying they were both elected officials?

Mr. Long: Yes.

If they were both elected, and if it were a transfer of decision making authority, we would say it was covered.

Unknown Speaker: Well, what do you... how do you define decision making authority?

Mr. Long: The distinction we draw is between the exercise of the authority to decide matters of Government... taxing, spending, substantive policy... and the transfer of those decisions from one official to another.

When an official simply exercises that authority, it is not subject to preclearance.

Thus, for example, we do not think that budgets, typically, would be subject to preclearance, and nor do we think that substantive laws would typically be subject to preclearance.

Unknown Speaker: What do you mean by typically?

I suppose the jurisdiction has to know, either we have to preclear everything or... or we don't.

Mr. Long: Well, we think the rule would be something very close to no, it never has to be precleared.

In the Etowah County case--

Unknown Speaker: So you disagree with Mr. Still on that?

Mr. Long: --Yes, we disagree on that point.

The qualification, I would add, is in the Etowah County case it appears there may have been a practice of dividing the budget into equal shares and if that practice were changed we would say that is a transfer of decision making authority, but in general a reduction of a budget, even to zero, we would say is simply the exercise of the authority to make policy and doesn't result--

Unknown Speaker: Why is that... why is it different if you do it through the budget than if you do it through reassigning functions?

Mr. Long: --Because--

Unknown Speaker: In principle, why is it different?

Mr. Long: --Then we regard that as the exercise of the authority rather than a transfer of the authority to make decisions.

We think that that distinction, after thinking about it for some time, is the one that best effectuates the intent of Congress to cover all changes affecting voting with that--

Unknown Speaker: If I take all authority from you and give it to another officer, that affects voting--

Mr. Long: --Yes.

Unknown Speaker: --But if I take all the money at your disposal and give it to another officer, that doesn't affect voting.

Mr. Long: In our view, that is where the line--

Unknown Speaker: That's the line.

Mr. Long: --Should be drawn, yes.

Unknown Speaker: It seems to me that in Etowah County if the budget was divided among four people and then they change and it's a common fund, in both instances it was under the total control of the commission.

Mr. Long: Well, again--

Unknown Speaker: And I... so I don't see how there's a transfer of power, even under your test.

Mr. Long: --Well, there is a... you could say that ultimately all power is delegated.

The legislature or the people, if it's a constitutional amendment, could always change the delegation.

We would say that where an official has authority to make a decision that then takes effect without further action, that a transfer of that authority is subject to preclearance, even if it's possible that some higher body could countermand that decision in a particular case.

That is where we draw that line.

We think, again, that some reallocations of authority plainly affect the power of a citizen's vote.

Allen held that a change making an elected office appointive is subject to preclearance, and we think the... a case where all of the authority of an elected official is transferred to an appointed official would have precisely the same practical effect, so we think that at least that case must be covered under the rationale of Allen and other decisions of this Court saying that a diminution in the effectiveness of a vote or voting power is covered, and we also think--

Unknown Speaker: Changing an... an elective office to an appointive, that was... that was a square holding in Allen?

Mr. Long: --That was, yes, sir.

Unknown Speaker: Yes.

Mr. Long: And we also think that less drastic changes can affect the power of a citizen's vote.

If, for example, a school board were deprived of all power to tax, or a minority representative on a school board were deprived of all power to vote on matters affecting the curriculum, that would significantly reduce the power of votes for the school board, or for members of the school board.

We think that excluding all transfers of authority... all transfers of authority would create a large loophole in the statute.

It would be inconsistent with the basic intent of Congress to combat subtle as well as obvious practices that abridge voting rights.

Unknown Speaker: Does any transfer of authority count?

What... you know, what is--

Mr. Long: Any... any transfer of decision making authority, Justice Scalia.

Unknown Speaker: --No matter how minor the issue involved.

Mr. Long: Yes.

We think it's settled that there is no distinction at the stage of whether the change must be submitted for preclearance for minor changes, and we think that would be unworkable.

Of course, at the second stage in determining whether the change is going to be precleared, that would be taken into account, and we would also take into account, for example, that the change was between officials who serve the same constituency.

Unknown Speaker: Well, I... once again, I could take away all of the official's money, so that effectively he has no more power, but if I take away one iota of his theoretical authority, then that--

Mr. Long: That is the line we draw, Justice Scalia.

Again, we get there in stages.

The first stage of our analysis is that we think some of these changes are covered.

We do agree, however, that Congress did not intend that every legislative enactment has to be submitted for preclearance and therefore, in deciding where to draw the line, we think the line that is most faithful to the intent of Congress... although it will produce some borderline cases... is to require that all changes in decision making power be submitted for preclearance.

Unknown Speaker: --Won't that pick up the vast bulk of legislative enactments?

Mr. Long: No.

We think it will--

Unknown Speaker: It certainly is the nuts and bolts of any legislative action I've ever witnessed.

Mr. Long: --Well, we think, Justice--

Unknown Speaker: Little adjustments here and there of the authority of one State agency or another... I mean, it just happens day in and day out with most pieces of legislation.

Mr. Long: --Well, we think the transfers of decision making authority are not an everyday occurrence, and that officials are generally quite reluctant to give up authority, and that this would cover far less than the huge expansion of the scope of section 5 that appellees suggest, and I also want to note that the preclearance process is set up to process a large number of changes.

We precleared almost 17,000 changes last year in a very short period of time.

So--

Unknown Speaker: Do you know how many of those involved transfers of decision making authority?

Mr. Long: --I do not.

I know that a number have--

Unknown Speaker: Did any of them?

Mr. Long: --I know that we have objected on eight occasions.

Unknown Speaker: There have been requests for preclearance in situations involving transfers of authority, though.

Mr. Long: Yes, there have, Justice Stevens.

Unknown Speaker: Can you tell me how many of the requests were denied?

Mr. Long: In this fiscal year we approved all but 121 of those 17,000, so well over 99 percent.

Unknown Speaker: Thank you.

Mr. Long: And finally, we would disagree with appellees that our test is unworkable in practice.

We think that many transfers of authority will have no discriminatory purpose or effect, and where there is some effect we would look to this Court's statement last term in Houston Lawyers Association that a covered jurisdiction's legitimate policy reasons for a change are properly weighed in making the preclearance determination.

So again, our position is that some of these changes clearly do have a potential... a serious potential... to dilute the effectiveness of votes, and we think some of them must be covered and the line that we urge the Court to draw is between changes that affect the decision making power of elected officials, which we think are covered... all of them are covered... and other changes, the exercise of decision making power, which we think are not covered.

Thank you.

Unknown Speaker: Thank you, Mr. Long.

Mr. Smith, we'll hear from you.

Argument of Paul M. Smith

Mr. Smith: Mr. Chief Justice, and may it please the Court:

Our basic position in this case is that section 5 of the Voting Rights Act applies to all changes in election laws or practices but does not apply to transfers of power or function among elected officials.

Now in drawing this line, I fully acknowledge that transfers of authority among officials can be undertaken for discriminatory reasons and can, in practice, affect the ability of minority citizens in a particular district or locale to influence the course of public policy.

Unknown Speaker: Was that argument rejected in Dougherty County?

Mr. Smith: No, Your Honor.

Dougherty County was a case about a specific rule which was enacted which--

Unknown Speaker: But that was the gist of the dissent there written by Justice Powell, wasn't it?

Mr. Smith: --Well, Your Honor, the dissent there dealt with whether this thing was closely enough related to election laws.

It was a rule which specifically focused on what happens to somebody who runs for office.

Justice Powell in his dissent there indicated he thought it wasn't a change in election laws because it was a rule that was passed through a personnel aspect of a school board, but since it was a rule that said, here's what happens to you when you run for office, it's certainly consistent with the line I've drawn to say Dougherty County affects voting, but transfers of authority don't affect voting.

Transfers of authority instead, we believe, should be governed not by section 5 with its particular standards and procedures but by the conventional remedies for other kinds of discrimination, if they are discriminatory, which is suits under the Fourteenth Amendment, in the Civil Rights Act.

Unknown Speaker: What about section 2?

Mr. Smith: Well--

Unknown Speaker: Do you... in your view, does section 2 apply to this or not?

Mr. Smith: --No, Your Honor.

I think if section 5 doesn't apply to something, then it's pretty clear that section 2 doesn't apply.

They have the identical language... standards, practices and procedures with respect to voting.

Now, in section 5, what Congress created was a unique form of Federal administrative review of State and local laws with an unusually stringent substantive test, and I think it's this test that's kind of gotten lost in this case.

It certainly isn't addressed by any of the parties on the other side.

That test is an effects test which says that any retrogressive impact caused by a change... impact on the position of minorities in the community and their political power... is enough to invalidate the change.

Now, that's pretty strong medicine when we have Federal administrators applying a test of that sort, but what Congress says is we're going to have this kind of mechanism, but it's going to apply only to a particular discrete category of changes... changes in the way elections are conducted, things that happen on election day.

That, after all, is what the statute says.

It says, standards, practices and procedures with respect to voting, it doesn't say, anything that affects power in the Government, and this limitation is perfectly sensible if you look back at what it was that led Congress to single out a minority of political jurisdictions in this country and subject them to special regulation.

These were jurisdictions which back in the '60's had large numbers of minority residents who weren't registered to vote, so the problem that existed was one with respect to the conduct of elections and voting, and Congress addressed that problem in two ways in the Voting Rights Act in 1965.

First, for these specific jurisdictions it suspended all literacy tests and other devices that were preventing people from registering to vote, and then in section 5 what it did is it essentially froze in place the balance of the electoral system that those jurisdictions had.

It said, you... we're going to take away your literacy tests and other devices, and the rest of the stuff has to stay the same, with one proviso, which was if the jurisdiction could come forward and affirmatively prove that there... that a change would be at least neutral in its impact on the political influence of minorities, then that change could go forward.

Now, nothing in that sequence of events, and nothing in the actual legislative record, not one word cited by anybody here, suggests that Congress intended this... this freezing effect and this drastic kind of Federal administrative review to extend beyond things that directly relate to what happens in elections.

Unknown Speaker: Have we got any cases that are even close to this, in your favor?

Mr. Smith: Well, Your Honor, there's only two cases that I'm aware of that have ever been filed that didn't involve something that related to elections, this case and the case of Hardy v. Wallace, which was a district court case in which they said that--

Unknown Speaker: So your answer is no.

Mr. Smith: --No, Your Honor.

In fact, the thing that's remarkable about this case is that we're talking about a vast expansion of a statute 26 years after it was passed.

If this was what everybody understood the Voting Rights Act to apply to, you would expect that there would have been thousands of lawsuits filed by plaintiffs over the past 26 years.

Certainly it's clear that, looking at the kinds of definitions of what has to be precleared that we're being given here, that there have been tens and tens of thousands of violations of this statute every year since 1965 in covered jurisdictions.

Unknown Speaker: Well, certainly voting... the term voting in the statute has been given a broad definition, Mr. Smith.

Mr. Smith: Yes, Your Honor, and I... and I certainly am not asking the Court to cut back in that definition, the definition that started in Allen, but what that definition says is you look at who can vote, who's voting with them in the voter pool, who's on the ballot, what... where they vote, the terms of office of people, so that affects when they vote.

But there has to be some concrete connection to the events of election day, I submit, and that's certainly what this Court held in Allen, and there's never been anything in the governing regulations or the legislative history, nothing that suggests otherwise.

Indeed, it's a remarkable fact that the Attorney General now for 26 years has not come out with a regulation that lists anything as... as covered by the preclearance mechanism which doesn't involve elections.

Unknown Speaker: Well, the... I think it's the Solicitor General's brief in this case gives a few examples in it of situations which might be said to be in this category of cases--

Mr. Smith: Yes, Your Honor.

Unknown Speaker: --where it has taken action and where it has... where the Office of the Attorney General has found there to be a discriminatory effect.

Mr. Smith: There are several examples cited.

I think the total amounts to something like 8 or 10 over the past 26 years that they were able to find where they found an illegal transfer of power.

Unknown Speaker: And it is certainly possible that in a covered jurisdiction that if a black person is elected to a particular office that with the intent to deprive that person of any power it could be removed, and under your view, then, there is no remedy.

Mr. Smith: No.

There are plenty of remedies, Your Honor.

The remedy is a lawsuit under the Fourteenth Amendment, which is the remedy that you apply for discrimination by government in every other context.

For example, if government decides we're not going to give public services to this segment of the community because the people who live there are black, the remedy is a lawsuit under the Fourteenth Amendment, and the same would be true here if, with racist intent, a group of people take power away from somebody who is elected by black constituents, or because he's black.

There are remedies out there.

The question is, is transfer of... is a transfer of authority sufficiently part and parcel of the electoral process so that it fits over into this narrow box of one type of discrimination that's covered by section 5?

Unknown Speaker: What... what about that... wasn't there a case in a three-judge court where there was a transfer of authority to appoint a racing commission from the county's legislative delegation to the Governor?

Mr. Smith: That was the case I cited to you a moment ago, Your Honor.

Unknown Speaker: Yes.

Mr. Smith: That's... that's the one case.

Unknown Speaker: Now, what connection did that have with the voting?

Mr. Smith: Well, that case under our theory was wrongly decided, Your Honor--

Unknown Speaker: Well, I know.

Mr. Smith: --The... that was a case where the authority was transferred from the local legislative delegation to the Governor--

Unknown Speaker: Exactly, and--

Mr. Smith: --To appoint this racing commission.

Unknown Speaker: --You say that... that case was just wrong.

Mr. Smith: Yes.

In fact, the Justice Department said so at the time.

They took the opposite position in that case in--

Unknown Speaker: Well, they... they seem to think it was right, now.

Mr. Smith: --Well, yes.

The point I make about that is that they have... they have, to the extent they've commented on this issue, been all over the lot.

Unknown Speaker: Well, they have, they certainly have.

They--

Mr. Smith: The other thing I would note about that case, Your Honor, in that case Judge Vance said, we're going to cover this one, but the vast majority of routine transfers of authority that occur every day are not, in the view of this Court, covered, so that case is a thin reed on which to attach... to support the... the huge expansion of the statute that's being proposed here by the Government and by appellants.

Unknown Speaker: --Yeah, but I take it that you... you seem to think that there isn't any transfer, just pure transfer of authority that's covered by section 5--

Mr. Smith: I think you have to draw--

Unknown Speaker: --Is that right?

Mr. Smith: --That is right, Your Honor.

You have to draw the line where Congress drew the line.

It said, standards, practices, and procedures with respect to voting, and a transfer of authority just isn't... doesn't do that.

First of all, it happens after people are in office, typically.

It affects incumbent officials and is... is therefore not an electoral procedural change.

Now, I do think it's important to focus on the substantive test that gets applied under section 5, because even leaving aside the plain language--

Unknown Speaker: What about a transfer of power just before the election?

In other words, say you agree on this redistricting and the consent decree, and then, in advance of the election, you take away the power of the person that's likely to be elected from the two new black districts.

Mr. Smith: --I don't think that makes a difference, Your Honor.

That is in fact what happened in Hardy v. Wallace.

They took the power away when the outgoing white legislative delegation engineered this so their successors--

Unknown Speaker: You don't think that would have any effect on what happens on election day?

Mr. Smith: --Well, it doesn't change the offices that are on the ballot and it doesn't change who votes or how they vote.

It does change the power of the people who are in office, but that's true of everything the Government does, virtually.

Unknown Speaker: I'm not sure that's all that different from changing electoral boundaries, which one can argue very forcefully Congress never thought of either at the time the statute was pending.

Mr. Smith: Well, perhaps, but certainly changing electoral boundaries does affect who votes and the nature of your ability to influence who gets elected in the way that--

Unknown Speaker: Well, it does affect who votes.

Who votes... it affects the district in which you vote.

Mr. Smith: --Right.

It affects your ability to elect a candidate of your choice, which has sort of become the key... the key kind of claim under section 2 of the Voting Rights Act.

A change in what somebody does after they're elected in some sense changes the nature of the office, but if you're going to take that expansion, then you basically are going to have the entire functions of government reviewed under this preclearance mechanism.

Unknown Speaker: Well, no, because the... the deferring to the officer who's supposed to interpret this statute for us, he says you can draw a meaningful line between budget changes and reallocations of power, and implicitly he's suggesting that maybe there aren't as... the millions of these problems out there that your brief suggests, and I thought you're probably right.

Maybe there are an awful lot of these.

But how do we know how often there are transfers of power of this kind?

Mr. Smith: It's a matter of common sense, Your Honor.

Think how many State laws are passed by every State legislative... in every State legislative session which in some way affect the relative distribution of power between the Governor of that State and the legislature.

Every time they pass a new program, or repeal a program, or modify a program, that's going to take power away from--

Unknown Speaker: Well, I don't understand them to be going that far.

Mr. Smith: --Certainly their brief makes it absolutely clear that a transfer of authority from a legislative branch to a Governor--

Unknown Speaker: Correct.

Mr. Smith: --would be covered, and I'm simply pointing out that legislation does that by its very nature.

Whenever you take--

Unknown Speaker: Well, it does if you accept... if you include all the budget changes and all that sort of thing, but--

Mr. Smith: --Well, what about... just to focus on budgets for a moment, if you look at a State legislative budget, it cuts money here and it adds money there, but it also will include hundreds of different specific requirements telling the Governor when the Governor can move money from this line item to this line item, how much flexibility they have here and there.

All of that is... is the distribution--

Unknown Speaker: --Yes, but I don't understand the Solicitor General to be saying those are included.

Maybe I'm misunderstanding him, and I know logically... I understand the logic of the argument.

Often we... you know, we draw arbitrary lines, and that's what he's saying.

There's kind of an arbitrary line, here.

It has to be a transfer of power, sort of, that you can look at it and say, this decision used to be made by Mr. A and it's now going to be made by Mr. B.

Mr. Smith: --Well, that's what happens when a legislature delegates power to the Governor.

The decision used to belong to the legislature.

Now it belongs to the Governor.

Or if they take it back, it's exactly the same thing.

I'm merely applying their test, which they claim in some way limits the scope of the act, but it doesn't have that effect.

The decision making authority is changed every day.

Now--

Unknown Speaker: I had assumed that they were as categorical as you said, and I had assumed that the reason they were was to the extent that there's any vagueness at all in the test, it's going to have to be decided by this Court, not by some court of appeals, because it'll come out of a three-judge court and come here as an appeal, just as this one is, so the test has to be very, very clear.

Mr. Smith: --Well, let me return for a moment, if I might, to how this would get decided under the substantive standard in section 5, which is a point that I think is important.

This effects test does not limit Federal interference to situations of actual, intentional discrimination, which may have been the case in that Hardy v. Wallace example.

What it does if you apply it to transfers of power is, it prevents power from being transferred for whatever reason from an official who is subject to greater minority influence and control to an official with less minority influence and control.

The only way that I can imagine that being applied is... is to have a rule that says, if you've got an official over here with a nigh percentage of minority constituents and an official over here with fewer, you simply cannot move power, under that effects test, from the one official to the other.

That is, in fact, what you would have to do if you tried to apply that kind of substantive standard, which was designed for election procedures, in this much broader context of transfers of authority.

So, for example, just to give an example, if a State had an existing arrangement under which total control over the creation of school curricula was delegated to local school districts and the State then, for its own good and legitimate reasons, decided to take back a chunk of that power and say... tell all the school districts they have to teach science in all 4 years of high school, or just set a State curriculum in the science area, that would be the transfer of a chunk of authority over school curricula from local officials subject to local control to the State level.

The appellant's theory is not only that that would have to be precleared... indeed, every time the State changed whatever curricula requirements it has it would have to be precleared... it would not only have to be precleared, but in every case where the local school district has more black residents than the State as a whole, it would be prohibited from making that change, because it would have the effect of transferring influence over that policy decision from a smaller group of people where blacks may predominate to a larger group of people... the population of the whole State... where blacks don't predominate.

So unless you're going to ignore the substantive test that Congress set out in section 5, you're going to end up with... with results which are just so far beyond what Congress could have imagined it was doing that they call into question the entire statutory interpretation.

Going back just for a moment to the issue of the frequency with which this happens, the school example, I think, makes it clear that you're going to have a huge number of cases in which State government will transfer authority back and forth between the State level and the local level.

Any time a State law addresses local government, what they're doing is, they're saying you should zone in this way, don't zone in this way, run your schools this way, you're allowed to have cable television in your county or you're not... those kinds of things.

All of that is a transfer of decision making authority.

It all may be phrased in different ways, but ultimately if you're going to have a principle like this you're going to have a huge number of laws like that, and of course, at the local level the number of times that a city council may tell the mayor what to do, or the county commissioners may divide up their delegated executive functions in Etowah County or Russell County are going to... are going to be nearly infinite, and all of those things would then be subject to this effects test and to a preclearance process which is going to change the way government is really conducted in these jurisdictions.

You're going to have to prepare this package of stuff, send it in and wait 60 days for almost every law that gets passed in order to be... be confident that you're not going to be subject to legal challenge at some later date.

Unknown Speaker: Well, and I... and I guess the Attorney General cannot clear it if... if it does fail the effects test.

Mr. Smith: Let's... the... the Attorney General is required not to preclear it if it fails the effects test, and then when the Attorney General says well, I'm just not convinced on this, you don't have any administrative review.

Your only alternative at that point is to go to the District of Columbia district and file a declaratory judgment action where you bear the burden of proving that this change is legal under the standards of section 5.

Unknown Speaker: May I ask you one other question?

In this particular case, under your view, what should be done as to the other... the two... two unprecleared resolutions, one by each county?

Do you think they should go back for trial on the constitutional issue?

Is that what happens?

Mr. Smith: Yes, Your Honor.

I do think that the constitutional claim and perhaps the title VI claim may be open.

I don't think the section 2 claim is open, and I... and I think it's pretty likely that the Fifteenth Amendment claim doesn't work, but there is a Fourteenth Amendment claim for sure, and that was pleaded from the beginning, and the Court left that open.

Let me just make... make one final point about this question of how many things would be subject to legal challenge.

There is no statute of limitations in section 5.

If something is done that should have been precleared and isn't, then it can be challenged at any time thereafter, and if we look at how many things might be viewed as involving some kind of transfer of authority... and we have appellants here saying every budget that's ever passed could be viewed in that way and should be precleared... then we have to think about how many things have been done in these jurisdictions since 1965 that now would be called into legal jeopardy if appellants' and the Government's interpretation of the statute were accepted.

Essentially, you'd have utter chaos in these nine States and part of seven others that have been operating under this statute for these years.

Whole departments of State government have been created since 1965.

Money has been shifted and power has been shifted in innumerable ways as government has evolved, naturally, over that period of time, and no one would have any idea what the law was.

You... you'd spend years sorting all that out in court as people tried to figure out, does this particular law in some way represent a redistribution of authority different from that in effect on November 1, 1964?

So it's not just a question of prospectively how much would have to be reviewed and whether the Justice Department could really do any good, looking at this mountain of tens of thousands of things they would receive every day, but going backwards you would basically have the settled expectations of everybody in those jurisdictions upset for a considerable period of years to come.

Now, in view of all this, it seems clear to us that Congress, whatever its concern about voting rights in 1965, couldn't have intended to transform the Justice Department into an administrative overseer of whole chunks of substantive legislation and other things that in some way could be viewed as affecting the authority of officials.

As Justice Powell pointed out in that dissent in Dougherty that we discussed, Justice... I was discussing with Justice Blackmun, there is an enormous intrusion here on State government.

Whenever you have a Federal review, administrative review of State statutes, but at least the section 5 intrusion is tempered by the fact that it's limited to a discrete area of law, voting laws.

At this point, that whole limitation would be basically lost, and you would have the Federal Government looking at almost everything the State's doing and telling it whether it can go ahead or has to file a lawsuit to get permission to go ahead, and as I suggested before, I think that it's... it's very unlikely that the Justice Department would find that needle in a haystack if there was one, it would be able to say look, here out of this 20,000 we got today, these two don't look too good to us, because maybe they're doing it for racist motives and we're going... we're going to tell them not to do those two.

The likelihood of any benefit coming from this--

Unknown Speaker: It doesn't matter whether it's racist... racial motives or not.

Mr. Smith: --That's one of the things that can be a basis for invalidating a change... purpose or effect.

Unknown Speaker: No, no.

But I mean, the Justice Department would have to invalidate not only those that have racist motives but those that have racist effects, whether or not they have racist motives.

Mr. Smith: Either way, yes.

Unknown Speaker: If... if they just take power from a black electorate and give it to a white one.

Mr. Smith: Right.

Unknown Speaker: And I... and I take it that if blacks have been newly enfranchised at the local level, that would prevent transfers away from the local government, but then if they make certain gains in the State legislature it would work the other way.

Mr. Smith: Sure.

Sure.

The... whichever way it goes, there's going to be situations in which there's going to be a possibility that blacks are losing power.

I mean, it doesn't... you can imagine hypotheticals all different ways.

Just to summarize, our position is that section 5 should be limited to things that directly affect the way elections are conducted and that the separate area of reallocations of authority is not being left without a remedy, but that that remedy is the standard constitutional lawsuit that's brought for all different kinds of discrimination, and that Congress obviously never contemplated this kind of expansion of the statute.

If there are no further questions--

Unknown Speaker: Thank you, Mr. Smith.

Mr. Still, you have two minutes remaining.

Rebuttal of Edward Still

Mr. Still: Thank you.

May it please the Court, the position of the appellees is much more radical than the position of the district court below, because the district court below held that we still had viable section 2 claims.

Take a look at footnote 21 of the district court opinion.

They said we can still go back and try our section 2 claims.

They were not ruling those out, so they were still saying these things may affect voting, and by us holding against you on section 5, we're not holding that they don't affect voting, we're just saying they're insignificant, or you didn't meet the change in constituency rule that we have now engrafted onto section 5, but as we've all, I think, agreed here today, section 2 and section 5 establish essentially congruent standards.

They cover the same territory.

One of them is designed to... to stop things as they get passed, and the other one is designed to catch those things that get through and those things that pass before the 1965 Voting Rights Act was passed.

This is not a budget case.

We've spent a lot of time talking about budgets.

This is a case about the transfer of power.

Voters used--

Unknown Speaker: Do you think the respondent's or the appellee's position here really requests a greater relief than they got in the three-judge court?

Mr. Still: --To the extent that they suggest and... and ask this Court to hold that we no longer have a section 2 claim if we don't have a section 5 claim, then they're getting more than they had in the court below, and they did file--

Unknown Speaker: So they have a different... they have a different and broader test for invalidation?

Mr. Still: --That's right, but they... but they're asking for greater relief than they got, and they're not... they didn't file an appeal.

I appreciate the Court's time.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Still.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 90-711, Presley versus Etowah County Commission and a companion case will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: These two suits under Section 5 of the Voting Ranks Act were commenced in a three-judge District Court for the Middle District of Alabama, and the consolidated cases are now here on appeal.

Each suit concerns a county road commission in rural Alabama, one in Etowah County and the other in Russell County.

The Commission members are elected.

In each of these counties, there was litigation to change the electoral process.

And as a result, the first black members in modern times were elected to the road commissions in 1986.

Those electoral changes are not at issue here.

Instead, the suits challenge changes in the decision making authority and the decision structure of the commissions.

The black commission members who brought these suits claim that these changes had the effect of diminishing the rule and the real power of the elected members.

In Etowah County, the Commission altered its prior practice of delegating to each member of the Commission the authority to determine how funds allocated to his particular road district should be spent.

And under the new system, decisions of this sort are made by the Commission as a whole.

In Russell County, the Commission altered its earlier practice of granting the Commissioner's individual authority for road and bridge repair and construction within their separate residency districts.

Under the new system in Russell County, these responsibilities were transferred to the County Engineer.

He was an official appointed by the Commission and responsible to it, but he made all of the routine decisions respecting construction and road repair countywide.

The plaintiffs sued the County Commissions to enjoin these changes on the basis that they were covered by Section 5 of the Voting Rights Act of 1965.

The Act provides, in covered jurisdictions, that any change with respect to voting must be submitted to the United States Attorney General for approval before it may be implemented.

These changes had not been submitted to the Attorney General and the District Court held that the County Commissions could implement the changes because they were not covered by the Act.

In an opinion filed with the Clerk today, we now affirm the judgment of the District Court though we adapt a different rationale to determine the question, what constitutes a change with respect to voting as that term is used in the Act?

The commissioners who sue argue that these changes in decision making structure reduced their net authority.

It follows, they contend, that a vote cast for individual commissioners was made less valuable and so there was a change with respect to voting.

The United States as amicus curiae agrees.

It asks us to adapt a rule embracing the routine actions of state and local governments at all levels so that this case has significance well beyond these two County Commissions.

We reject the position of the appellants and of the United States because it has no basis in the statute and provides no workable standard.

Were we to accept the appellant's reading of Section 5, we would work an unconstrained expansion of the statutory coverage.

Innumerable state and local enactments having nothing to do with voting, affects the power of elected officials.

The appellants and the United States failed to provide a workable distinction between changes in rules governing voting and changes in the routine organization and functioning of government.

Some standard is necessary for in a real sense, every decision taken by a democratic government implicates voting.

Yet, no one would contend that when Congress enacted the Voting Rights Act it meant to subject all or even most decisions of government in covered jurisdictions to federal supervision.

Rather, the Act by its terms covers any voting qualification or prerequisite to voting, or standard practice or procedure with respect to voting.

The changes now at issue are not covered by this language.

And on this rationale, we affirm the judgment of the District Court.

Justice Stevens has filed a dissenting opinion in which Justices White and Blackmun join.