LOPEZ v. MONTEREY COUNTY

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Argument of Joaquin G. Avila

Chief Justice Rehnquist: We'll hear argument now in Number 95-1201, Vicky Lopez v. Monterey County.

Mr. Avila, you may proceed whenever you're... am I pronouncing your name correctly?

Mr. Avila: Yes, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you.

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

The issue before you is whether a district court having enjoined an unprecleared plan can then order that unprecleared plan into effect.

The resolution of this issue is controlled by Clark v. Roemer.

There, the Court unanimously held that an election based upon unprecleared election changes must be enjoined.

Here, the district court ignored Clark, suspended the operation of section 5, and ordered the implementation of the unprecleared plan.

Unknown Speaker: Do we know that section 5 necessarily applies here?

Mr. Avila: Yes, it does apply.

There can be no serious dispute that section 5 applies to judicial elections in Monterey County.

Unknown Speaker: But how about the fact this is basically a State statute, and Monterey, the State of California isn't covered?

Mr. Avila: We are dealing with county ordinances which have consolidated judicial districts starting back in 1969, the date after Monterey County was made subject to the section 5 preclearance provisions.

The applicable State statutes refer and incorporate the consolidations that occurred at the county level, so we had a series of county ordinances... in fact, a total of about 11... that started out with two municipal court districts and seven justice of the peace court districts on November 1st of 1968, and ultimately it winded up with a countywide election system in 1983, and so--

Unknown Speaker: But I guess you stipulated with the county that it is impossible to prepare an election plan that doesn't conflict with State law and still comply with the Voting Rights Act.

Mr. Avila: --That is correct, Your Honor.

Unknown Speaker: And if that's the case, then how do you avoid challenging California State law?

Mr. Avila: Well, at this particular point, there are still--

Unknown Speaker: And how do you do that under section 5?

I mean, it's a very confusing case.

Mr. Avila: --Yes.

Unknown Speaker: And I really would appreciate your addressing this inquiry that the Chief Justice also inquired about.

Mr. Avila: Although we are dealing with State statute, we are also dealing with county ordinances and a consolidations of judicial districts that occurred over a period of time.

Section 5 requires the county ordinances as well as the State statutes that specifically refer to events or consolidations of the judicial districts in Monterey County, and these State statutes specifically referred to Monterey County.

Unknown Speaker: Well, but if it is the State statute that is the operative law, I think it's just not a case where the Voting Rights Act applied.

Surely you wouldn't make the argument if it was the other way around, if the county ordinance mentioned by reference some State law, and then applied... applied the same rule as a matter of county law.

You wouldn't say that the fact that it referred to State law lets the county off the hook.

Mr. Avila: That's correct, Your Honor, but--

Unknown Speaker: So I don't know why it works the other way here.

This is State law we're talking about.

The State isn't a covered unit.

Mr. Avila: --The reason why it doesn't work is because here, Monterey County has the authority to consolidate judicial districts, and it exercised that authority under State law, and so as a result of those consolidations, there were changes which had to be precleared under section 5 of the Voting Rights Act.

Even though you may have had a State statute that implicated those consolidations, it nevertheless specifically referred to the consolidations in Monterey County, and in this particular instance, we have a series of county ordinances which the district court back in 1993 found had not been precleared and could not be implemented, and until those particular county ordinances are approved, the State statutes, which are dependent and interrelated with those county ordinances, can't come into effect.

Unknown Speaker: Mr.--

--Did State law require Monterey County to consolidate?

Mr. Avila: It could, but it didn't in this particular case, and when we look at, say for example--

Unknown Speaker: Well, I mean it either does or it doesn't.

I'm just not clear whether State law requires consolidation of these local judicial offices.

Mr. Avila: --The State laws that are under review in this particular case did not.

The 1983 State statute was contingent upon the consolidations of three judicial districts in Monterey County, and so it specifically referred to this event that was going to occur in Monterey--

Unknown Speaker: So you take the position that the county, Monterey County was free to consolidate or not.

Mr. Avila: --That is--

Unknown Speaker: And what is challenged here was Monterey County's decision to consolidate.

Mr. Avila: --That is correct.

Unknown Speaker: Which was not mandated, according to you, by State law.

Mr. Avila: Under the State laws that are under review, are not... they were not mandated.

Unknown Speaker: And there has never been a determination that there is a substantive violation of section 5 of the Voting Rights Act?

Mr. Avila: That is correct.

Now, the only... this, of course, is just not merely a failure to preclear.

We also have a situation here where, after the district court found these ordinances subject to section 5 of the Voting Rights Act, Monterey County then filed a section 5 judicial declaratory judgment action in Washington, D.C., and subsequent to that filing, we intervened, and as a result of that intervention, as a result of discussion with the Department of Justice, Monterey County decided that it could not meet its burden of demonstrating that several of these county ordinances did not have a retrogressive effect.

Unknown Speaker: Well, it withdrew that suit, I guess.

Mr. Avila: It did.

Unknown Speaker: It dropped the suit, and so that leaves us in a posture, as of now, there's been no finding of a substantive violation of section 5.

Mr. Avila: That is correct.

Unknown Speaker: Mr. Avila, you're not making an alternative argument which I would have thought you would have made, and I'm beginning to think that I'm missing something or you would have made it, and the argument would be this.

Section 5 refers to a jurisdiction which enacts, or which, I think, implements a plan which has not been precleared, so that even if the county took no independent action, and even if the county were doing nothing but administering State law, wouldn't the second clause of section 5 pick it up, so that it would require preclearment even though it was the result of State law and the State is not, as an entire State, a covered jurisdiction?

Wouldn't that be enough to create the section 5 violation?

Mr. Avila: Yes, it would, Your Honor.

If you have a State statute that enables the county to take a particular course of action--

Unknown Speaker: Well, I'm not talking about enabling it to take a course of action.

I'm saying, if you had a state statute that required it to take a course of action, even though the State wasn't covered, and even though the county alone was a covered jurisdiction, by following that State law, the second clause of section 5 would require preclearance, wouldn't it?

Mr. Avila: --That's correct, it would.

Unknown Speaker: But you say that the State law authorized but didn't require consolidation, is that right?

Mr. Avila: The 1983 State statute was in essence based on a contingency of consolidation of three judicial districts which the county board of supervisors at that point authorized, and duly adopted an ordinance consolidating these three judicial districts, but--

Unknown Speaker: Was the county free, after the enactment of the State statute and after consolidating, to go back to the preconsolidation regime?

Mr. Avila: --It was not free under State law to go back to the status quo ante, and the reason why is because the justice of the peace courts were eliminated in 1993 under a State proposition, and at the time of 1968, there were two municipal court districts and seven justice of the court... justice of the peace court districts, and to go back to that procedure was deemed to be unfeasible by the district court, and for that reason the district court found it compelling to issue an order to require an election based on an interim plan for the June 1995 election.

Unknown Speaker: And it was also true that there was a State statute that required countywide courts, isn't that correct?

Mr. Avila: I'm sorry, Your Honor.

Unknown Speaker: Isn't there also a statute, a State statute that requires that the courts be countywide, or am I wrong about that?

Mr. Avila: Under the State statutes and the constitution, State constitution, you could have a countywide municipal court district.

Along... in addition to that, you could also have municipal court districts, several municipal court districts within the county as long as they met certain criteria, as long as they didn't divide municipalities, as long as they contained over 40,000--

Unknown Speaker: Are there such counties in California where you have... unlike this county that now has just one district, are there counties in California that have multiple judicial districts?

Mr. Avila: --There are some counties in California that do have multiple court judicial districts.

For example, Los Angeles County, Alameda County, San Diego County.

Many of the large urban areas have multiple municipal court districts, and Monterey County, back in 1968, did in fact have two--

Unknown Speaker: So the State law that we're dealing with that ratified or approved the consolidations is not part of a Statewide plan.

It's just peculiar to this one covered county, is that not right?

I mean, that law that deals with the consolidation is not like the constitutional provisions that are also in this picture.

Mr. Avila: --That's correct.

Unknown Speaker: But to the extent that California approved what had been done by the county, that's peculiar to this one covered county.

Mr. Avila: The State statute specifically refers to Monterey County.

It auth... the State constitutional provision authorizes the legislature to create countywide municipal court districts, to create multiple municipal court districts if so desired.

In fact, in some of these counties you have... in San Diego County, for example, you have a municipal court district that in fact divides municipal boundaries, so there are various variations that are permitted under State law.

Unknown Speaker: As I take it, what this case presents to us is not the question so much what the court should have done, or might have done, but the question of whether what it did do was wrong, and you're saying what it did do was per se wrong.

Mr. Avila: Yes, Your Honor.

Unknown Speaker: It was clear error.

Mr. Avila: Clear error.

Unknown Speaker: Yes, and that's the only issue before us, I take it.

If we agree with you, back it goes, and people will have to figure out what to do next.

Mr. Avila: That's precisely our point.

If the Court reverses the district court refusal to enjoin its unprecleared election change, then on remand, the district court would then be required to conduct an evidentiary hearing to determine what alternative should be implemented, because it can't go back to the--

Unknown Speaker: Well, it's possible that the only thing before the court at the time it acted was the allegation that no preclearance had been obtained, and perhaps the only thing the court could do was just say, that's right, get it precleared.

Mr. Avila: --Yes.

That was one--

Unknown Speaker: Nothing else.

Mr. Avila: --That... no.

Unknown Speaker: Nothing else.

Mr. Avila: There were other alternatives that the district court could have explored.

Unknown Speaker: Well, I'm not sure there are.

Like what?

Mr. Avila: Well--

Unknown Speaker: I mean, at that stage, with no substantive violation of section 5, what more can the court do except say, okay, get preclearance?

Mr. Avila: --Well, for one thing the district court could have continued to extend the terms in order to permit the State--

Unknown Speaker: Well, even that isn't so clear, is it?

Mr. Avila: --Well, in this particular case the district court did... after the issuance of this Court's stay did extend the terms until further order of the district court and further order of this Court.

Unknown Speaker: Are you actually disagreeing?

I thought your position is, they have to preclear, they didn't, and under Clark, what a district court is supposed to when they don't preclear is say, hold everything.

Nothing happens.

No election, no nothing until you go and preclear.

Am I right?

Mr. Avila: Ordinarily that would be correct.

Unknown Speaker: And isn't that what you want to happen here?

Mr. Avila: Yes.

Unknown Speaker: And you're saying he didn't do that, but under Clark, he should have done it.

Mr. Avila: Yes.

Unknown Speaker: You're... but you have to add one fact to it, extend the terms of judges elected under a plan that the court believes may be unconstitutional.

I mean, the court was concerned about the constitutionality of the plan under which the judges currently sitting were elected, wasn't it?

Mr. Avila: Yes, it was, Your Honor.

Unknown Speaker: So that... that's quite a significant factor as to whether a realistic option is to let those terms continue.

Mr. Avila: Well, there was ample opportunity that was provided to the district court in order to resolve and address that question.

Unknown Speaker: But your case, as I understand it, does not depend upon our so assuming, because all you want, in theory, and all... as I understand it, all that it would take for us to resolve this case, and all that it would have taken for the district court to resolve the case was to order, just as Justice Breyer suggested a moment ago, no election under this plan.

What happens next may be a very serious State problem, but that's not what you require the district court to get into.

All you are asking from the district court is, enjoin the election.

Enjoin the application of an unprecleared plan, period.

Isn't that correct?

Mr. Avila: That is--

Unknown Speaker: And that's all you want us to say.

Mr. Avila: --At this point, yes, it is, Your Honor.

The reason why at some point... maybe not at this particular juncture, but the reason why we're here is because there hasn't been preclearance since 1969, and the State and the county have not come forward with a proposed solution since 1993.

Unknown Speaker: But would you not agree that your position would be different if, instead of the district judge... instead of saying, well, I think there may be a violation of equal protection under Miller and so forth, if the judge had held a hearing and found that the plan in effect was unconstitutional, then we'd have a different case, wouldn't we?

Mr. Avila: That's correct, and I--

Unknown Speaker: Of course, he did not do that, but they just sort of assumed it might be.

Mr. Avila: --And at a minimum we wanted to have an evidentiary hearing so that we could present various alternatives and the district court could then determine whether in fact the 1994 was unconstitutional, but that's not the issue here.

Unknown Speaker: Then why didn't you bring a complaint saying it's unconstitutional?

I mean, why... you said you would like to have had a hearing, but as I understand it, and I may be wrong on this, you had no pleading before the court claiming that the preceding plan was in fact a violation either of section 2 or of the Fourteenth Amendment.

Mr. Avila: I think it's very important to point out that the plan that we're talking about is the 1994 precleared plan, which was a proposed plan that was submitted by the appellants and the county to try to resolve this litigation.

Unknown Speaker: Yes.

Mr. Avila: And it is that plan that the district court felt that after this Court's decision in Miller raised constitutional concerns.

Unknown Speaker: Well, that's right, but that plan was limited in its temporal scope--

Mr. Avila: That's right.

Unknown Speaker: --as I recall.

Mr. Avila: That's correct.

Unknown Speaker: So once again, the only thing that the court had before it as a matter of pleading or complaint was a claim that in the absence of that interim precleared plan there was no precleared plan, and therefore no election should be held, isn't that correct?

Mr. Avila: That's correct, Your Honor.

Unknown Speaker: Yes.

Do you know in your study of this... it seems to me over the last 30 or 40 years it probably has come up before that some covered district had in place a plan that arguably is unconstitutional.

Then, they changed it, and the change has to be precleared, but under Clark, you just keep the status quo until they preclear it, even if that status quo is arguably unconstitutional.

Mr. Avila: That's correct.

Unknown Speaker: Has that situation ever come up before, because that would be a relevant precedent.

Mr. Avila: Well, the typical procedure is to go back to the status quo, and you cannot challenge--

Unknown Speaker: Yes, even if that status quo--

Mr. Avila: --Yes, you can--

Unknown Speaker: --You don't go back to it.

You just say, that's it.

Everything else is frozen.

Now, is there instances where you can think of in your experience or research where maybe that status quo was arguably unconstitutional, but still we want the D.C. Circuit deciding these things, not every district court in the country.

Mr. Avila: --Well, in the... the 10-year litigation that occurred in the Conner v. Johnson, Connor v. Waller, which started off as a one-person-one-vote violation, which there was established, in fact, a violation, and subsequent court proceedings dealt with the remedial issues, and that would be the precedent that I would cite.

I would like to at this time reserve my time for rebuttal.

Unknown Speaker: Very well, Mr. Avila.

Mr. Jenkins, we'll hear from you.

Argument of Alan Jenkins

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

The three-judge court held that the county's electoral system contained voting changes covered by section 5 that had never received preclearance.

This Court's precedents clearly require the district court to enjoin elections under that plan.

As the Court's questions have indicated, first and foremost, a so-called local three-judge court's task is to determine whether changes are subject to preclearance, have been precleared and, if not, to enjoin elections under an unprecleared plan.

Justice Breyer, in response to your question, it has been frequently the case that the status quo ante was an unconstitutional or otherwise unlawful plan.

For instance, when Congress enacted the Voting Rights Act, it understood that a lot of the plans currently in effect would be unconstitutional either under the Fifteenth or Fourteenth Amendment, one-person-one-vote violations and what-have-you, and that for section 5 purposes they could still serve as the benchmark.

That--

Unknown Speaker: But Mr. Jenkins, isn't the problem that this isn't a status quo ante?

Right.

I mean, if we were going back to what it was when they had the district... whatever, the municipal districts and the justice districts.

But here, it's not that we go back to what was and keep it.

There is in... practically for every point of view you can't return.

You can't go back to that old way, so there has to be a different way.

Mr. Jenkins: --Well, Justice Ginsburg, our contention is not that the district court necessarily erred in rejecting a particular plan, but that the option that it chose of allowing elections to go forward under an unprecleared plan was impermissible under this Court's decisions.

We do think that the district court had some remedial alternatives, some flexibility in determining what to do, but that the course that it took was an unlawful choice.

Unknown Speaker: Would we--

--Well, suppose there are two choices, neither of which involves returning to the status quo.

Suppose you cannot return to the status quo.

One is to order preclearance, and the other is to require elections under an unconstitutional plan based on race.

Which of those do you take?

Which is the lesser evil?

Mr. Jenkins: Well, Your Honor, clearly, I think if the district court had done the full-blown Miller v. Johnson analysis, determined that the 1994 interim plan was unconstitutional--

Unknown Speaker: Let's assume that that was the case.

Mr. Jenkins: --Right, and if the only other choice was, if I understand your question, allowing elections under an unprecleared plan--

Unknown Speaker: Yes.

Mr. Jenkins: --Then I think elections would have to go forward under the unprecleared plan.

If the Constitution were to come into direct conflict with enforcement of section 5, that would affect the outcome, but I think that's quite far afield from the situation that's presented here, as--

Unknown Speaker: Mr. Jenkins, why don't you... why doesn't your answer go this way, that given the unconstitutionality on the one hand, an unprecleared plan on the other, that in fact everything has got to stop until somebody comes up with a constitutional plan?

Now, that somebody may be the district court.

If the district court has, in fact, had a complaint register... or filed with it saying the old plan is unconstitutional, the district court finds that it's unconstitutional.

It finds no precleared alternative to the unconstitutional plan, then it's clear that the district court has got... absent anybody's better idea, the district court has got the jurisdiction to fashion a plan.

Isn't that the way out of the dilemma?

Mr. Jenkins: --I think that's correct, Justice Souter, but as I understood the hypothetical, the only two choices were an election under an unprecleared plan--

Unknown Speaker: Right.

Mr. Jenkins: --or an election under an unconstitutional plan.

Unknown Speaker: And I guess I'm saying you shouldn't have accepted the choices as being limited to the two because--

[Laughter]

Because the third choice is, simply file a complaint saying the old plan is unconstitutional, let the district court adjudicate it, and the district court has got remedial authority.

Mr. Jenkins: Well, that's certainly correct under the situation that was actually presented in this case.

There were a number of alternatives.

One alternative could have been simply to prevent elections from going forward and to order that incumbent judges remain in their posts pending preclearance of a permanent change.

We don't know that the 1994 interim plan was in fact unconstitutional.

Unknown Speaker: Well, I mean, I don't know why you give this sort of absolute answer rather than it depending on circumstances.

I mean, it might be the case that the status quo ante was arguably unconstitutional.

The judge has to decide whether to keep that while they go run and preclear, or produce a new interim plan.

Suppose the only interim plan that he's presented with is, give the State just what it wants.

Then his choice is, we give the State just what it wants, or we proceed under the old status quo, which was arguably unconstitutional.

I mean, I don't know whether... which is which.

Isn't it rather fact-specific, and--

Mr. Jenkins: I think that... pardon me.

Unknown Speaker: --circumstance-specific?

Mr. Jenkins: I think that's correct, Justice Breyer.

Unknown Speaker: This is a rather confusing case--

--I don't understand this.

--and I think we're getting confused about what is the old status quo.

I mean, nobody suggested that the old system with the justice courts was unconstitutional.

The question is, when they changed from that, was that in violation of section 5.

Mr. Jenkins: That's correct, Justice Ginsburg.

If I can be clear, there was a system that existed on November 1st, 1968, which has not been claimed to be unconstitutional, but which the district court thought would be difficult or unfeasible to return to.

Unknown Speaker: Because it involved courts that no longer exist in the whole State of California, for one thing.

Mr. Jenkins: That's correct, but I think before allowing elections under an unprecleared system the district court was required, among other things, to analyze whether that system, the preexisting '68 system, could have been adapted in some way to accommodate current circumstances.

We think there were a number of remedial alternatives that were possibilities, as Justice Breyer says, based on the facts of the case.

Unknown Speaker: Did the court have the power to impose any of these remedial alternatives on its own without first making the determination that the extant plan, which would otherwise continue, was unconstitutional?

Mr. Jenkins: Well, we think so, Justice Scalia.

I mean, the 1994 interim plan was a one-time plan, and the elections had already been conducted under that plan, so there was a question as to what would be the further relief that would be ordered so long as no pre... permanent plan had been precleared, but I think the local court had jurisdiction to make that consideration.

Unknown Speaker: Well, I'm not sure why, because the court has got jurisdiction to adjudicate a complaint that's brought in front of it.

The complaint brought in front of it says, this is an unprecleared plan.

The court can adjudicate that, says it is unprecleared, don't use it.

I don't see why the court, absent some further pleading before it, has got jurisdiction to do anything.

If at that point the party says, or some party says, whoops, if we can't use this unprecleared plan, then we've got to decide what's going to happen to the old plan.

If they don't bring a complaint that the old plan is in fact unconstitutional, then I don't know why the old plan wouldn't be followed.

If they do bring a complaint that the old plan is unconstitutional, and the court so finds, then the court has got jurisdiction to make any kind of remedial order.

Why isn't that the regime that we should assume?

Mr. Jenkins: Well, Justice Souter, if I understand your question, I agree with you that it would not have been objectionable for the district court to simply say, no further elections, and judges that were elected either under the unprecleared plan that existed or under the interim plan will simply remain in their posts.

Unknown Speaker: Yes, but I'm suggesting something more.

I'm saying the court shouldn't have done anything more than that.

Mr. Jenkins: Well, I think under certain--

Unknown Speaker: It should adjudicate what's in front of it, and if the only thing in front of it is a section 5 claim, it should adjudicate it and stop.

Before it goes any further, it ought to have another claim to adjudicate in response to which it would have jurisdiction to grant relief.

Mr. Jenkins: --Well, ordinarily that would be correct, and I agree with you that in order to resolve this case, and to order the outcome that the appellants seek, that's all this Court would have to decide.

My point is simply that there was a difficult circumstance presented to the district court here because of the jurisdiction's failure to obtain preclearance, and the possibility that there might be an indefinite period in which no elections--

Unknown Speaker: Yes, but that's--

--That's not the court's problem.

That's not--

--That's the jurisdiction's problem.

All the court has to say is, this hasn't been precleared, period, whereupon it's the problem of the jurisdiction to decide what they're going to do with these judges, continue them or come up with some other plan, but I don't know why it's the court's problem.

Mr. Jenkins: --Well, Justice Scalia, in City of Rome this Court held that in fact the fallback remedy essentially under section 5 is elections under the status quo ante system, and as Justice Gins--

Unknown Speaker: After a finding of violation.

That's a remedy after finding--

Mr. Jenkins: --Well, there was a finding of a violation here, which was the failure to preclear an election system that was covered by section 5, so there was in fact a violation.

If I... there was not--

Unknown Speaker: --I mean a violation that the extant... you know, the system in place, which someone is asking to be stricken down, is a violation.

Mr. Jenkins: --Are you referring to the 1994 interim plan, or are you... which one are you referring--

Unknown Speaker: In this case, none.

I mean, nobody was challenging any particular plan here.

They were just challenging the preclearance.

Mr. Jenkins: --Well, I'd like to leave it with the fact that I think, Justice Souter, you're correct that this Court need not address that question in order to reverse the decision.

If I could address briefly the question of--

Unknown Speaker: What about the situation of the district judge?

The fact that this wasn't precleared, the district court bears some responsibility for that, because the district judge kept insisting, I want you to come up with a plan that satisfies Federal law and State law.

Both parties said they couldn't, so the district judge really had something to do with why we have no precleared anything.

Mr. Jenkins: --Well, Your Honor, that's true, and what I was about to address was the question of State law, and I think Justice Souter in his earlier comment was quite correct that section 5 covers attempts to enact or administer voting changes within the covered jurisdiction.

This Court in the Sheffield case held that section 5 coverage is territorial, and that State laws as well as local laws cannot be enforced within the jurisdiction as to preclearance.

Unknown Speaker: Thank, you, Mr. Jenkins.

Mr. Jenkins: Thank you.

Unknown Speaker: Mr. Stone, we'll hear from you.

Argument of Daniel G. Stone

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

The questions posed to Mr. Jenkins and Mr. Avila suggest what the State would have suggested independently, which is that the context of this proceeding is a very important focus as well as the scope of a covered jurisdiction once it's determined, by virtue of the statutory formula, that a jurisdiction must seek preclearance of voting changes.

The nature of this case, as Justice Souter has suggested, is a complaint for declaratory and injunctive relief.

It's called a coverage case under section 5, and the only inquiry in these cases is whether there is a covered jurisdiction, if so, whether that jurisdiction is enacting or seeking to administer a new change which it has initiated affecting voting rights, and then the third question is, did they first obtain the requisite preclearance?

So in that sense... in our briefs we use the word technical.

I understand that that's a confusing, perhaps a misnomer, but it is a procedural question of whether or not they've done the requisite steps to get Federal approval before implementing something that a covered jurisdiction has initiated.

Unknown Speaker: So if it is established in the Federal district court that preclearance was not obtained, and that it's a covered jurisdiction, what, in your view, could the district court do, beyond simply saying, hold everything, get preclearance?

Mr. Stone: That is the common remedy.

It's a declaration that--

Unknown Speaker: Nothing more.

Mr. Stone: --Nothing more.

Unknown Speaker: On this complaint.

Mr. Stone: Certainly on this complaint.

Unknown Speaker: Well, I take it hold everything means enjoin any further elections.

Mr. Stone: Well, in Clark v. Roemer this Court very strongly suggested that that may be the case.

Unknown Speaker: What should have happened here, in your view?

Could the court simply say, I make a finding, a declaration that there has been no preclearance, and that there should be no preclearance, and stop there, or must he further enjoin elections under the unprecleared plan?

Mr. Stone: In most cases the elections must be enjoined.

This Court--

Unknown Speaker: What should have happened here in your view?

Mr. Stone: --Well, for several reasons we don't believe the elections should have been enjoined here.

Under Clark v. Roemer this Court said that there may be extraordinary circumstances in which an injunction would not be appropriate, and it gave an example, which is one in which the action was filed at the eleventh hour, the election processes were already well-advanced, and that there were equitable reasons why the elections should be permitted to go forward.

Here, the complaint was filed in 1991, and it was challenging 1968 through 1983 ordinances.

In Clark the Court made the point that there was no showing that the plaintiffs were not diligent.

Here, I suggest that quite the opposite fact is true.

Furthermore, as the Court has pointed out, there have been intervening State actions.

The State is not a covered jurisdiction, and the State has... for one thing, the people through an initiative measure have eliminated justice courts altogether.

The State has also enacted statutes, particularly Government Code section 73560, which state as a matter of State law what the municipal court district is in Monterey County, and--

Unknown Speaker: Is it your position that changes by the county pursuant to State law, even if required by State law, need not be precleared?

Mr. Stone: --Yes.

The State... the State is not--

Unknown Speaker: And how do you respond to the "or administer" language in the statute?

Mr. Stone: --Well, I believe that... Justice Stevens, I believe that addresses informal as opposed to formal actions by a covered jurisdiction.

The covered jurisdiction may initiate by promulgating a regulation if it's a county--

Unknown Speaker: So that in your view, even if Monterey County was covered, if the State legislature enacted a whole bunch of changes, it completely redesigned the jurisdiction in ways that were retrogressive, there'd be no... no Federal remedy except under section 2.

Mr. Stone: --Exactly.

There's always the remedy, and several members of this Court have suggested this, there's always the remedy of proceeding under section 2, or the Fourteenth Amendment.

Unknown Speaker: So that in any case of a covered jurisdiction which is less than Statewide, the State legislature basically can preclude any section 5 action simply by enacting a new State statute on your view.

Mr. Stone: If it--

Unknown Speaker: The State can completely defeat the jurisdiction under section 5 and the preclearance requirement.

Mr. Stone: --Well, with respect, Justice Souter, I don't think it defeats the purpose of section 5.

Section--

Unknown Speaker: Well, if this... maybe I misunderstood you.

I thought if the... I thought your position was that if the State was not a covered jurisdiction, and only a... some subdivision of the State was, that if the State enacted a statute which changed the manner of election in the covered jurisdiction, it was not subject to preclearance.

Mr. Stone: --That is our position.

Unknown Speaker: Well, then I think it follows... I mean, that's just an example of a general rule that in any case of a section 5 jurisdiction the requirements of preclearance can simply be eliminated by the adoption by the State of a statute which changes the manner of election in the covered jurisdiction.

Mr. Stone: I agree with that, too.

I just took from the tone of the question--

Unknown Speaker: So there isn't much left of section 5.

Mr. Stone: --Well, of course there is.

The citizens within the covered jurisdiction are still protected against any action of that identified jurisdiction, but the fact that another governmental entity has made some change within its sovereign power that has some effect upon voting rights--

Unknown Speaker: Mr. Stone, when did that become... would you just describe to us, when did that become California's position, because... correct me if I'm wrong about this... I thought that California had itself sought to preclear changes that would affect... changes in State legislation that would affect covered counties.

Mr. Stone: --It's true that the Secretary of State's Office for the State of California does submit on occasion... I don't think it's absolutely every time, but it does submit regularly State statutes and enactments for preclearance, but this Court has never held, and it's been our position throughout this case, to answer your question, that the State is not a covered jurisdiction, and therefore its enactments do not require preclearance.

Unknown Speaker: Even though the State has sought such preclearance when its enactments affect... will make a change in a covered jurisdiction.

Mr. Stone: It has, Your Honor.

The Court is probably aware--

Unknown Speaker: So you're saying that California has acted out of an excess of caution, is that your view?

Mr. Stone: --That is exactly what has happened, and also--

Unknown Speaker: And not on... based on its understanding of the law that it was required to seek preclearance when State law changes voting in a covered jurisdiction.

Mr. Stone: --There's a Department of Justice regulation... I believe it's section 51.23 of 28 Code of Federal Regulations... which suggests that States have that requirement, and in an abundance of caution the Secretary of State's Office has, as a general matter, attempted to obtain preclearance, but this Court has never held that such preclearance is required of an uncovered jurisdiction, and I would suggest that it's a very grave incursion into principles of federalism to do so.

Unknown Speaker: Well, Mr. Stone, I'm not sure that's even an issue here.

Was the... Monterey County free to adopt the plans that it did--

Mr. Stone: The--

Unknown Speaker: --at the time that it took the actions that it did?

Mr. Stone: --Yes.

It's various consolidation ordinances--

Unknown Speaker: It wasn't mandated by State law?

Mr. Stone: --No.

State law permitted the counties to adopt--

Unknown Speaker: But didn't require it.

Mr. Stone: --No, although there's some confusion on the record in that respect.

The county through its counsel in its initial motion to dismiss early on in the case, before we were involved at all, indicated that it required legislative permission in advance, and the--

Unknown Speaker: But that's not your position here.

Mr. Stone: --I think that's right, that the legislative--

Unknown Speaker: And so all of this other discussion about your views of State action and section 5 is not really at issue in this case.

Mr. Stone: --No, I believe they are, Justice O'Connor, because we... the State is now, as you know, a defendant party.

It was made a party for the first time as part of the order that's now on appeal here, and we have argued that because the countywide elections are conducted pursuant to State law, that there's no place for a section 5 proceeding here, the reason being that when the Court in South Carolina--

Unknown Speaker: Well, but to the extent that what was challenged here in the complaint was a failure to preclear a change in Monterey County's municipal and justice court setup, that change you say was not mandated by State law, and to the extent we look at that, I assume that the Court would just determine whether it was or wasn't, and if it wasn't would order preclearance.

Mr. Stone: --Oh, I see, Your Honor.

Unknown Speaker: Why do we get into all this other stuff?

Mr. Stone: I misunderstood your question.

At the time the ordinances were passed, the county had the discretion--

Unknown Speaker: Right.

Mr. Stone: --to design the district--

Unknown Speaker: And wasn't what the complaint alleged?

I mean, that's all that was before it.

Mr. Stone: --But at the time the lawsuit was filed, there was on the books a State statute indicating that the Monterey County Municipal Court District is the entirety of Monterey County... that's section 73560 of the Government Code... and there was this change in the State's constitution, Article VI, section 5, which said that there may no longer be Statewide--

Unknown Speaker: But that wasn't what the complaint challenged.

Mr. Stone: --No, but the point is--

Unknown Speaker: No.

Mr. Stone: --that at the time they filed it, 20 years after the first of these ordinances, things had changed considerably, and the State during that intervening period had dictated what the Monterey County Municipal Justice--

Unknown Speaker: All right, but why doesn't that go to the merits?

I mean, what I can't understand about this case is why has it taken 5 years?

You didn't preclude that... preclear the initial matter, so you have to preclear it.

So why doesn't the State go to the D.C. Circuit, and they would make their argument, which says because of all the factors you bring up, that these single... this single unity and the change in all the judges does not abridge anyone's right.

It does not have the effect to abridge rights to vote on the grounds of race, and they would argue because of the change in the single district, member district, it does.

And then we would have the D.C. Circuit decide all this, take into account your arguments, which are excellent, and their arguments, which are excellent, and then we would get a decision as to whether or not a State does abridge--

Mr. Stone: --Because--

Unknown Speaker: --rights on the basis of race under the circumstances that you outline in your brief.

Mr. Stone: --Our arguments go to whether preclearance is required.

They go first of all to whether a statute enacted by a jurisdiction that has not come within the covered formula is nevertheless subject to preclearance--

Unknown Speaker: All right, so if you disagree that it's not subject to preclearance--

Mr. Stone: --Right.

Unknown Speaker: --why don't you appeal, the district court's judges to the contrary, to the Ninth Circuit?

Mr. Stone: The issue is still open in the district court.

The district court's order that is under appeal here specifically says, now that the State has been made a defendant on this day, November 1, 1995, it shall have the opportunity to raise defenses--

Unknown Speaker: Then why isn't it up to the district court under ordinary precedent to enjoin all elections until it decides that matter, at which point, if you lose you will have to go to the D.C. Circuit, and if you win, you won't.

But Clark says this is an ordinary kind of thing.

When one side says it is precleared, the other doesn't, you keep the status quo, freeze everything, until the district court decides, and it should decide.

Mr. Stone: --Your Honor, that would have been fine.

We would dispute that an injunction should be put into effect until the court is certain that there is in fact a preclearance requirement that was not met.

That remains an open question.

As the Court said in its November order, the State may have this case dismissed on the basis that preclearance is not required.

But your point, Your Honor, about the status quo is very important, because had the plaintiffs and the Department of Justice been content to have an injunction preventing these countywide elections pending preclearance, that would have been fine.

That would have been what Clark says to do.

They instead urged the court, and the court ultimately did their bidding, to fashion a new order, a remedial order.

Unknown Speaker: All right, but can we say bygones are bygones--

Mr. Stone: We cannot.

Unknown Speaker: --whatever happened in the past, now proceed according to Clark?

Mr. Stone: No.

As Justice O'Connor pointed out, this proceeding is simply to determine whether an enactment is subject to preclearance.

Preclearance encompasses not just enactments that harm minority voting rights, it encompasses neutral enactments, and it encompasses enactments that greatly enhance minority rights.

Any of those kinds of actions have to be precleared before they can be implemented, so at this point the mere fact that the court found that this consolidation had to be precleared says nothing about whether there's any substantive harm.

And because there's no substantive harm yet proven or established and because, as Justice Souter pointed out, there's no constitutional or section 2 challenge filed, there's no parallel case, as there was in Allen and Clark and Morse, where the constitutionality of the practices are being challenged, there is... the court has no basis upon which to fashion any remedial order.

Unknown Speaker: Well, is that quite true?

Isn't it true that the county, when it dismissed its objection in the D.C. Circuit action, in effect stipulated that they could not demonstrate that there was no retrogression?

Mr. Stone: Yes.

They stipulated that they were unable to--

Unknown Speaker: Which at least gives the district court a colorable basis for assuming their ought to be some interim remedy until they get preclearance.

Mr. Stone: --Well, I'm not sure it does, Justice Stevens, because the district court... this Court has held, in defining the different kinds of actions that may be brought under the Voting Rights Act, it has specifically said that a coverage case such as this, where the only question was coverage, has no jurisdiction to determine either retrogression, which is expressly limited to the District of Columbia courts, or constitutional violations.

They are all beside the point.

Unknown Speaker: When you say stipulate, Mr. Stone, was there what you would think of as a technical stipulation filed in the district court which stated what you said it stated?

Mr. Stone: As part of these interim orders that they urged the court to order, to direct, the parties stipulated... not the State, certainly, but the parties then existing, stipulated that the county was unable to establish that the ordinances, that several of the ordinances, it wasn't specific, were not retrogressive in that they may have had--

Unknown Speaker: The parties... they stipulated that they couldn't bear the burden of proof of proving that they were not retrogressive?

Mr. Stone: --Yes, of proving that several of them were not, and that was all they stipulated.

There was no... normally in the District of Columbia court, if there's a determination of retrogression the court gives some guidance about what it is that's a problem, and perhaps how it can be remedied.

Here, we don't know which, if any consolidated--

Unknown Speaker: Is it not also relevant that the interim remedy put into effect in December of 1994 was precleared?

Mr. Stone: --That is irrelevant, Your Honor.

Unknown Speaker: That's irrelevant.

Mr. Stone: Yes.

Unknown Speaker: May I get clear on, I guess, a further point there that is raised both by your answer to Justice Stevens and your answer to Justice Breyer?

In an action like this, in which the issue is whether preclearance is required and whether, if so, it has been obtained, and the court concludes that it is required and it hasn't been obtained, is it your position that the Court can enjoin the... an election under the unprecleared plan?

Mr. Stone: Yes.

Unknown Speaker: Okay.

Mr. Stone: And that's the normal remedy.

I believe that's what this Court said in--

Unknown Speaker: And that's the extent of it.

And that's it, period.

Mr. Stone: --Absent extraordinary circumstances that seems to be the limits of this coverage case court's remedial authority.

Now, here in particular, we would argue that the court did not need to enjoin then.

For one thing, as we say, the question of whether preclearance was required is now reopened, because the State is now a defendant, and can argue that the State is not subject to preclearance, and that these elections are conducted pursuant to State law at this late date.

Secondly, that Clark says that there may be extraordinary circumstances which could come into play.

As we pointed out, there was no diligence here.

The process... not in the sense that it was at the eleventh hour and that primaries were going to be held the next day, but in the sense that the State has, since these ordinances, dictated how municipal court elections shall be conducted, those have come to play.

Secondly,--

Unknown Speaker: Well, how is that relevant, because the State might not have made this disposition with respect to this county if it had known that it was under attack?

Mr. Stone: --No.

It's relevant because a noncovered jurisdiction has some substantial say if not dispositive say in the elections as they're--

Unknown Speaker: No, but I'm trying to connect that to the lack of due diligence that you were referring to.

Mr. Stone: --Well, it's the fact that they waited 20 years, permitted a great deal of time in which the State took several actions with respect to justice and municipal courts in Monterey County, so their diligence... had they filed this action immediately after passage of the first ordinance, or the second, or the third, and taken issue with it at the time, then an injunction would have been against the county, I suppose, at least much more clearly.

Now, the State has developed law, including the initiative voted by the entire population of the State, to eliminate justice courts, and that is in the midst... one point to be made about how much the State is involved here is to look at the remedy which they have sought here.

They didn't seek an injunction that would put the status quo... that is, the 1968 system... back in effect.

They sought an affirmative remedial order by the court which, among other things, annulled or suspended State laws.

It annulled or suspended--

Unknown Speaker: Yes, but the interim remedy did accommodate the State interest in having countywide jurisdiction.

I mean, they were trying to accommodate some of the State interest in the particular remedy they selected, didn't they?

Mr. Stone: --Actually, Your Honor, the State interest is not in having countywide jurisdiction.

Mr. Avila was correct that there are municipal courts that are less than county, but the underlying State interest is very much that every voting citizen within a judicial district is entitled to vote for the judges of that district, and that was thrown out the window by the interim plan.

Similarly, there's a State interest, constitutional in nature, that no city shall be split in a municipal court district.

That was thrown out the window.

Unknown Speaker: But only for election purposes, not for jurisdictional purposes.

The interim remedy is countywide for jurisdictional purposes as opposed to election purposes?

Mr. Stone: But that's even worse, Your Honor, than dividing it into--

Unknown Speaker: It's almost as bad as letting a judge be assigned to another district.

It's almost that bad.

At least that's what the district court said.

Mr. Stone: --Yes, and we of course disagree to the extent that it belittled the State's interest.

But the point is, there are constitutional... constitutional provisions that were in existence before even Monterey County became a covered jurisdiction.

These are 1966, the most recent enactments of Article VI, section 5, and Article VI, section 16.

They're 1966.

Even if the State were a covered jurisdiction, a coverage question would have to find that those enactments are not subject--

Unknown Speaker: Mr. Stone, can I interrupt your presentation for one moment, because I understand you're making arguments that really haven't been decided on by the district court.

To what extent does your position rest on the reason given by the district court for the action that's being challenged, namely that it was concerned that Miller, which was decided some 6 months after the interim remedy went into effect, cast constitutional doubt on the interim remedy?

Is that essential to... do you think that that reason was acceptable?

Let me put it that way.

Mr. Stone: --That... yes, Justice Stevens, that in combination with the fact that the interim remedy... and I always put it in quotes... was issued in the first place, because I believe that Miller--

Unknown Speaker: But that's not why the district court set its own remedy aside.

They set it aside entirely, as I understand it, on the basis of Miller.

Mr. Stone: --Well, that's correct, on the basis that it was... substantial questions about its--

Unknown Speaker: Right.

Mr. Stone: --constitutionality came into play.

Unknown Speaker: And my question is, do you think that was a proper way to decide that issue without first deciding whether there was a Miller violation?

Mr. Stone: Well, the court didn't say there was a Miller violation.

Unknown Speaker: No.

Mr. Stone: But I don't see how it could come to any other conclusion, Your Honor.

But let me say that the mix... what we've been talking about is a normal section 5 coverage case where the only question is whether a statute enactment or informal something that a covered jurisdiction seeks to administer requires preclearance and hasn't yet had it.

But when the court decided... it was very ill-advised, we believe beyond its jurisdiction, but it decided to redesign, reconfigure the county court system in Monterey and to suspend or annual State laws and State constitutional provisions.

It then had another order.

That changed the mix entirely, and we submit that the court then had jurisdiction to correct its own error, to eliminate this unconstitutional or substantially unconstitutional order and to put things back where they were.

The court was trying to return to the status quo.

That's why we believe it ordered that there be a one-time countywide election, because when the case first came to this court the judges on the Monterey County Municipal Court had been elected countywide.

The court changed that.

It changed it in a race-based fashion that it was inappropriate to do and the court's November order points out, we don't accept the retrogression stipulation, meaning we now recognize that that's not our domain, it's for the district court in the District of Columbia, and we're not the section 2 court, meaning all these stipulations--

Unknown Speaker: But don't you think that the reason the district judge thought Miller invalidated the plan, or its interim plan, was because the district judge thought that any reliance on race in fashioning the districting would be invalid?

Mr. Stone: --The district court did say that Miller draws into question whether any reliance on race may be invalid, but it didn't go that far.

Unknown Speaker: So do you think it's up to us to decide whether the district court correctly or incorrectly construed Miller?

Mr. Stone: Your Honor, I think the sentence that the court... that you're citing in the court's decision is certainly subject to some scrutiny and clarification, but that was not necessary to the Court's decision here.

In normal cases, including Miller and Shaw, the Court asks about the constitutionality of districting in a context where districting is the normal procedure, and there are normal districting principles... the decennial reapportionments, for instance.

In this case, the traditional districting principle as far as dividing any judicial district in California is, we don't do it.

We do not do it.

Unknown Speaker: Your position here, Mr. Stone, is that you are satisfied with the November 1995 interlocutory injunction, and you ask that the district court's judgment be affirmed?

Mr. Stone: Yes.

My point is that the traditional districting principles, as that phrase is normally used in decennial reapportionments, doesn't apply here.

The districting principles that apply here... districts are designed for administrative convenience in the justice courts, so the notion of it, maybe... maybe in a hearing they could prove that it was contiguous, so what?

Unknown Speaker: It seems to me that affirmance is inconsistent with your basic argument here, which is that all the Court could do was order preclearance.

I mean, how could we affirm?

The petitioners asked the court to do things that it couldn't or shouldn't do, and the court went along with it, and you want us to affirm it, and it looks to me like to be consistent with your view we'd have to reverse, or vacate and send it back and say the only thing on this complaint you could do is order preclearance.

Mr. Stone: Except, Your Honor, that I think the court's most recent order, the November order, was an attempt to correct what it had unfortunately messed up initially.

The court should not have issued the December 1994 order, which injected race, divided the county, it gave 10 percent of the voters within a judicial district the right and power to elect a judge that is sitting over the whole district--

Unknown Speaker: Well, if we should reverse the November 1995 order, that wouldn't necessarily mean approval of the December 1994 order, would it?

Mr. Stone: --Well, but that would then be the status quo, as the Court has used it.

That would be what was left.

That's the trouble.

The court's effort was to correct that and bring things back the way they were initially.

I think that was laudable.

Unknown Speaker: But you would be free to advance all the arguments you've been making here, including the unconstitutionality of that remedy, because those haven't really been ruled on.

Is that not right?

Mr. Stone: Well, the court has not expressly stated that it's remedy, its '94 remedy was unconstitutional, but as I started to point out, the only purpose for the dividing of this district was race.

Unknown Speaker: Yes, I know.

If that establishes unconstitutional, it's an easy issue to decide.

Surely he'll set aside the order if it's unconstitutional, but he just hasn't so held, or they haven't so held... there are three judges... I should say.

I think I'm right on that.

You still can make the argument.

You still may win on this very ground, but that ruling has not yet been made.

Mr. Stone: Well, and at this point it would be moot, except for the extension of terms, because the court was obviously uncomfortable with its remedy in the first place.

Unknown Speaker: Well, if it would be moot, then your answer... then you're not standing by... I think you're not standing by the answer you gave a moment ago that if all we do is conclude here that he should have enjoined the use of the plan that he adopted, that that would restore a status quo ante, and the status quo ante is unconstitutional.

I think you're now saying it wouldn't restore the status quo ante.

Mr. Stone: No, it would, because the court has extended the terms.

But the court--

Unknown Speaker: Oh, because of the court's extension.

All right.

Well then, isn't Justice Stevens correct in his suggestion that all you have to do, if the case goes back in that posture, is to file an appropriate pleading saying this status quo ante is unconstitutional, and you should vacate any order of the court that establishes it?

You... that's open to you, isn't it?

Mr. Stone: --Well, when the Court held its hearing on Miller, that was the question it wanted to address--

Unknown Speaker: Yes, and that's the question... and that's the question that you can litigate if it goes back in the posture that Justice Stevens and I are suggesting.

Mr. Stone: --Well, that's true, Your Honor, although in the meantime the results of that unconstitutional--

Unknown Speaker: That is yet another issue.

That is yet another issue, but you can litigate your Miller claim, can't you, if it goes back?

Mr. Stone: --Yes.

Unknown Speaker: Yes.

Mr. Stone: But on the same token, on these facts this Court it seems to me could very quickly and easily find that under Miller, that--

Unknown Speaker: Well, we don't... I don't know what procedural basis we'd have to be deciding a Miller claim, either.

Mr. Stone: --Well--

Unknown Speaker: We don't even have a map in the record, I don't think.

Mr. Stone: --Well, actually, I did submit a map which shows that there's no--

Unknown Speaker: I couldn't find it.

I--

[Laughter]

Mr. Stone--

--I assume one of the lawyers said it was based on race, but--

--how is the Miller question even ripe if we don't know whether the change needs to be precleared, and we don't know the view of the Attorney General or the D.C. Circuit whether there's any retrogression involved in the countywide system?

How do you even get to the Miller, which would be something else in place of the system that's been found retrogressive?

Mr. Stone: --Well, the principal reason that you know Miller should annul this interim remedy of December '94 is the point made by Justice O'Connor that no substantive harm to voting rights has been established, so any remedy that brings race in at all, any remedy at all is inappropriate in this Court.

Unknown Speaker: But suppose... let's suppose the D.C. Circuit finds you can't have this change because it's retrogressive.

Then what?

If that's what the D.C. Circuit finds, how can you counter the retrogression... retrogression necessarily involves race... without saying, I have to remedy that impact on race?

That's what I don't follow.

Mr. Stone: Well, that's... it would be a very different case if this were in the district court and if retrogression, a substantive violation had been determined.

Then the Court would have options.

Unknown Speaker: But we never even have empowered the right decisionmaker, because it's been frozen in... as I understand it, in the district court within the Ninth Circuit that doesn't have the authority to make that retrogression determination.

Mr. Stone: Well, it's correct that it hasn't yet gotten to any court in which substantive harm can be determined.

Unknown Speaker: Thank you, Mr. Stone.

Mr. Stone: Thank you.

Unknown Speaker: Mr. Avila, you have a minute remaining.

Rebuttal of Joaquin G. Avila

Mr. Avila: I would like to refer the Court to Conner v. Waller as providing authority for the issuance of injunctive relief and additional relief beyond merely the issuance of a permanent injunction.

I would also like to point out that at least in, previously in this Court in Shaw the State is not entirely covered under section 5 of the Voting Rights Act, and only Federal counties, but yet when the State enacts a redistricting plan that affects those counties, those plans that directly affect those counties have to be precleared.

And with respect to the remedy we are urging this Court to reverse the district court's use of the unprecleared election change, and so that the court can then conduct whatever evidentiary hearing needs to be conducted in order to determine what should be the appropriate remedy, and the reason why we have to go beyond the injunction is because there has been... we have to correct the previous effects of elections that were conducted under an unprecleared election system, and that was what the temporary plan did.

We have election systems since 1968, up to the time that the complaint was filed, conducted under an unprecleared election system.

Chief Justice Rehnquist: Thank you, Mr. Avila.

The case is submitted.

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

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 95-1201, Lopez against Monterey County will be announced by Justice O’Connor.

Argument of Justice O'Connor

Mr. O'Connor: This case comes to us on appeal from a three-judge District Court for the Northern District of California.

Monterey County, California is subject to the federal preclearance requirement set forth in Section 5 of the Voting Rights Act.

As a jurisdiction covered by Section 5, the County may not enact or seek to administer any voting practice different from the practices in effect on November 1, 1968 without first obtaining approval of either the Attorney General of the United States or the District Court for the District of Columbia.

Between 1972 and 1983, Monterey County, in fact adopted a series of ordinances that merged nine separate judicial districts into a single countywide judicial district.

The County did not submit any of the consolidation ordinances for federal preclearance under Section 5.

The appellants in this case sued the County in the Federal District Court for the Northern District in 1991, alleging that the County had not obtained Section 5 preclearance for its judicial election scheme.

The three-judge District Court ordered the County to obtain federal preclearance of the challenged ordinances but the County did not submit the ordinances to the appropriate federal authorities.

Instead, the County began to work with the appellants to develop a new judicial election plan that they believe would be less retrogressive than the at large countywide election scheme.

The State of California intervened and opposed the party’s plans.

It claimed that they unnecessarily violated the California Constitution as well as certain California statutes.

In 1994, the three-judge District Court finally decided to adopt as an interim measure, one of the plans proposed by the County and the appellant even though the plan was inconsistent with state law.

In 1995, this Court issued its decision in Miller versus Johnson.

Shortly after that, the three-judge District Court here ruled that Miller casts substantial doubt on the constitutionality of its interim plan.

In 1995 then, it ordered the County to conduct judicial elections under an at large countywide election plan.

In essence, four years after filing the complaint, the District Court ordered the County to hold elections under the very same scheme that the appellant had originally challenged under Section 5 as unprecleared.

In an opinion filed today, we reverse.

The District Court’s order that the county conduct elections under the unprecleared judicial election plan conflicts with our decision in Clark versus Roemer.

It was an error for the District Court to order elections under the at large countywide election plan that had not been precleared by an appropriate federal authority.

Congress intended that only the Attorney General of the United States or the District Court for the District of Columbia has on the discriminatory effect or purpose of an election change.

This congressional choice in favor of specialized review limits the role of the three-judge Federal District Court, and the court may determine only whether Section 5 covers a contested voting change whether Section 5’s approval requirements were satisfied, and if the requirements were not satisfied, what temporary remedy, if any, is appropriate?

The goal of the three-judge District Court facing a Section 5 challenge must be to ensure that the covered jurisdiction submits its election change to appropriate federal authorities as expeditiously as possible.

A county has not discharged its obligation.

The requirements of federal scrutiny should besatisfied without further delay.

The judgment is reversed.

The case is remanded for further proceedings.

The decision is unanimous.