LOPEZ v. MONTEREY COUNTY
The Voting Rights Act of 1965 requires designated states and political subdivisions to obtain federal pre-clearance before giving effect to changes in their voting laws. Hispanic voters, residing in Monterey County, California, filed suit in federal court claiming the county had failed to obtain the required pre-clearance for a series of ordinances changing the method for electing county judges. A three-judge District Court ultimately dismissed the case because the section of the Voting Rights Act that requires pre-clearance did not cover California. Moreover, California had passed legislation requiring the voting changes forged by Monterey County.
Does the Voting Rights Act's pre-clearance requirement apply to states not explicitly covered by the Act?
Legal provision: Voting Rights Act of 1965
Yes. In an 8-1 decision, announced by Justice Sandra Day O'Connor, the Court ruled that the county is covered by the Act's pre-clearance requirement, but the state was not. Justice O'Connor wrote, "We conclude that the county is required to seek pre-clearance before implementing California laws that effect voting changes in that county."
Argument of Joaquin G. Avila
Chief Justice Rehnquist: We'll hear argument now in Number 97-1396, Vicky Lopez v. Monterey County.
Mr. Avila: Mr. Chief Justice, and may it please the Court:
The question before you is whether a voting change is required to be precleared prior to its implementation within a section 5-covered jurisdiction.
Section 5, plain language, its purpose, administrative interpretation, and congressional ratification, answer that question in the affirmative.
The State of California's statutory construction argument would undermine the broad purpose of section 5 as articulated by this Court.
Chief Justice Rehnquist: Well, but if it's a fair reading of the statute it has weight in its own right, doesn't it, even if it might be contrary to some earlier decisions of this Court.
Mr. Avila: Yes, it would.
If there's any ambiguity in the plain language of the statute then you would look at, not only at prior precedent, but also you would look at the structure, the overall structure of the act, that is, the interrelationship between sections 4 and 5, and also you would look at the Attorney General's longstanding interpretation of the act, and the legislative history, which confirms Congress' awareness and ratification of that interpretation.
And when you look at the focus of section 5, it is on the covered jurisdiction and whether its voting practices have changed, irrespective of the source of the voting change, but the State's construction would immunize a covered voting change so long as a State enacted a superseding statute, even if that statute was never subjected to preclearance.
This construction would create what has been described as a loophole the size of a mountain.
Two examples of such loopholes are:
Counties could evade section 5 review by securing courtesy legislation at the State level.
Section 5 review of redistricting plans would be circumvented.
On the other hand, a harmonious interpretation of the statute is achieved by construing section 5 consistently with section 4.
Justice Scalia: Well, the courtesy legislation point, I mean, I guess you have to acknowledge that a covered county can do some nasty things which it hasn't tried to do before by getting the State to acknowledge State-wide legislation.
Justice O'Connor: No?
Mr. Avila: That's correct.
The problem, however, is that the State's argument, if adopted by this Court, would result in major loopholes in the section 5 preclearance provision and, in this particular instance, it would immunize the county's voting changes from section 5 review.
Justice Scalia: If you appeal the plain language, what do you do when the State adopts a general provision of legislation?
Does each county within the State that happens to be covered have to clear that piece of legislation?
My understanding is that it's simply the State that preclears it and when that happens the county's okay.
Mr. Avila: If... the focus is on the voting changes that occur within the covered jurisdiction.
If the State enacts a statute that affects voting changes within our covered jurisdiction, either the State or the county can submit either the... the legislation for section 5 preclearance.
Justice Breyer: Why wouldn't...
Justice Scalia: But if you're appealing to the plain language, does the plain language suggest that either the State or the county can do it?
Mr. Avila: The plain language of section 5 would suggest that either a covered State or a political subdivision, but, however, the responsibility, the primary responsibility would be on Monterey County to make sure that it submits any voting change, irrespective of its source, when it effectuates a voting change in that covered county.
Justice Souter: I'm not sure I understand you.
What plain language is it that you're relying on?
Is it the seek to administer?
Mr. Avila: Yes, it is, and the seeks to administer refers, in fact, to the act of administering, not, as the State argues, to an administrative act.
Again, the focus is on the covered jurisdiction and whether its voting practices have changed.
Justice Kennedy: Suppose the State has not... pardon me.
Suppose the county has no discretion.
You shall consolidate the judicial district.
Does the State... does the county seek to administer such a provision?
It's not asking.
Seek means advice.
Justice Breyer: I might seek your advice.
Justice Kennedy: The State isn't really... or the, pardon me.
The county really isn't asking to do anything.
It's being told by the State to do it.
Let's assume no discretion.
Let's assume the State has no different options.
Mr. Avila: That interpretation, seeks to administer means seeking to implement.
As this Court in the first opinion, it stated...
Justice Kennedy: Well, it's not seeking to do anything.
It's just ministerially complying with a command from the State.
Mr. Avila: It is implementing a voting change.
Justice Kennedy: But it's not seeking to in the sense of wanting to, of asking to.
It's simply obeying a command from the State.
Mr. Avila: Well, even if it obeys a command from the State, when it effectuates voting change within that covered jurisdiction it has to be submitted for section 5 preclearance, otherwise you're going to create huge exemptions, especially in States that have... that include covered section 5 counties, like North Carolina.
Chief Justice Rehnquist: You say a huge exemption, but it's perfectly arguable from the language that that's what Congress intended.
Mr. Avila: It is a re... it is one interpretation.
However, the Attorney General, which is charged with the central enforcement of this section 5, could also have another reasonable interpretation, and that reasonable interpretation in the past has been deferred to by this Court, especially in matters... especially in terms of interpreting its regulations as they apply to matters affecting voting, and in Presley that was the case.
In Presley, section 5's broad scope as it relates to election matters was given a very broad scope, and that... and the Attorney General in this case has been interpreted...
Chief Justice Rehnquist: Well, but isn't there an argument on the other side, that here we deal with national and State relations, and that since this does impinge on them, it should probably not get a terribly sweeping interpretation.
Here Congress has stepped into the State... the State local business.
Mr. Avila: Yes, but that balance, that balance between... that delicate balance that was struck by Congress back in 1965 between a State's sovereignty and the Federal interest in eliminating the blight of voting discrimination, that was struck in 1965, and it's been reratified, or ratified three times.
Chief Justice Rehnquist: Precisely, so let's look at the language and not some cry for a very broad interpretation of it.
Mr. Avila: It is not a cry for a very broad interpretation.
In fact, what we're seeking to do in this case is just merely maintain what's been going on since 1965.
And that is, when you have the Attorney General reviewing redistricting plans for 1970, 1980, and 1990 from North Carolina, New York, and California, which are States that contain covered counties, when you look at that, and you look at the Congressional Record that's cited in our briefs, you find that in fact in the 1982 reenactment of the Voting Rights Act you find explicit references in the Senate report that say, while... quote, while North Carolina as a State is not subject to section 5, the legislation in question affected North Carolina counties which are covered, and therefore it should have been precleared.
And when you look at another page reference, at page 14 in that Senate report, it explicitly refers to letters of objection, which they found to be compelling evidence for reenacting section 5, and one of those letters of objection on page 11 of that Senate report is the 1981 redistricting plan for North Carolina.
So we have this history of administrative interpretation and this history of congressional ratification of that interpretation, and so when we... and in addition to that, when you look at the overall structure of the act and the interrelationship between section... sections 5 and section 4, we find even more compelling reasons for maintaining the status quo.
In Katzenbach, this Court stressed the interrelationships between sections 4 and 5, and stated that section 5 was designed to march in lockstep with section 4.
In Katzenbach and Gaston County, this Court approved section 4's statutory framework which suspended State literacy laws in section 5-covered counties, even though the State itself was not a designated jurisdiction.
In other words, all literacy tests that were suspended in the covered counties were products of State law.
Justice Souter: Well, one of your arguments is the... what... the risk of what you refer to as the courtesy legislation, that in fact if State law itself is a means to avoid section 5, the usual State capitol log-rolling will simply mean that the counties will get the legislature to enact what they want.
Is it an answer to that to say that a line should be drawn between legislation which affects only a covered county and general legislation which in fact affects every county in the State, which I understand is the case here?
Is the risk sufficiently reduced in the case of bona fide State-wide legislation so that we should dismiss... in a case like this we should dismiss the concerns about courtesy legislation?
Mr. Avila: Yes, because in fact the State of California has a choice here in enacting State legislation.
When we look at the 1979 State statute we find that California in fact directed its legislative effort towards one county.
The statute specifically mentions Monterey County.
Justice Kennedy: Well, there's two things there.
Justice Souter can certainly protect his own question.
The premise of his question was that there was State legislation which applied to more counties than Monterey, and he said, would that be a difference.
And then you say, well, this 1979 statute applied only to Monterey.
That doesn't really quite answer his question as a principle of law.
Mr. Avila: Yes.
Justice Kennedy: Why don't you answer the question, first as to whether or not his suggestion about the principle is accurate, then you can say whether or not the principle applies here.
Mr. Avila: The principle of law is that when you have a State-wide statute that has... that affects voting changes throughout the State, and four of those counties in California are subject to section 5, those State statutes would have to be submitted for section 5 preclearance.
Justice Scalia: Well, but that's the issue.
Mr. Avila: Yes.
Justice Souter: I mean, that's the issue, and one of your reasons for saying that they must be is that unless the general legislation is so submitted with respect to those counties, legislation at the State level will simply be used as a cover for what in fact is local discriminatory efforts.
Mr. Avila: That's correct.
Justice Souter: My suggestion was that perhaps if you have a genuine, bona fide legislative act intended to cover the whole State that really does cover the whole State, that you don't have that concern, and why isn't... why would you have that concern in the case of State-wide legislation?
Mr. Avila: We would have that concern, if I understand the... your question, because it might still have mischief in other counties.
For example, if...
Justice Souter: You're saying that it might lack intent to discriminate but have the effect.
Mr. Avila: That's correct, and really that's a question for another proceeding, because here we are still in the enforcement stage of section 5, and that issue would be best addressed when you're reviewing the substantive determination of whether a State-wide statute has a discriminatory purpose, or has a discriminatory effect.
Justice O'Connor: Could I ask you to identify what relief you actually want?
This has had a complicated history, the justice and municipal courts in Monterey County.
What precisely are you now asking?
Are you trying to get preclearance of the California State law in 1979 consolidating municipal courts into a single district, or the county ordinance that same year, or both?
It isn't clear to me.
Mr. Avila: We are trying to... both.
The quick answer is both.
We are trying to basically enforce this Court's first opinion, which stated...
Justice O'Connor: Well, yes, fine, but I'm trying to pin it down.
You want preclearance, in effect, of the 1979 county consolidation ordinance.
Mr. Avila: That's correct.
Justice O'Connor: And the 1979 State law to the same effect.
Mr. Avila: That's correct, and that's the premise of our argument, because...
Justice O'Connor: And even if you get some kind of preclearance and review in the meantime, State law has changed again, and has totally eliminated judicial districts.
Mr. Avila: Well...
Justice O'Connor: There's a constitutional amendment now that eliminated Justice of the Peace courts, and there's a State law increasing municipal judges from seven to nine in the county, and that was precleared.
Mr. Avila: Yes, it was.
The 1983 State statute was precleared.
Justice Stevens: Yes.
Mr. Avila: The... what is important, however, is that...
Justice O'Connor: So at the bottom line, what are you trying to get?
Mr. Avila: The bottom line is that the 1983 preclearance merely involved the preclearance that this Court found from... going from three districts, three judicial districts to one county-wide district and in fact, on November 1, 1968, we had nine judicial districts, and the 1983 State statute cannot be read to have precleared those nine districts into three districts, because there's no reference, the Attorney General had no notice...
Justice O'Connor: But under State law today it has to be one judicial district, so...
Mr. Avila: That's correct.
Justice O'Connor: what's available at the end of the line?
I just don't see.
Mr. Avila: Well, the basis for that one judicial district is that if that judicial... if that county-wide district is to be precleared, it was only precleared or approved from the change from three judicial districts to...
Justice O'Connor: Please tell me what it is at bottom you're trying to get.
Are you trying to go back to some separate district system...
Mr. Avila: No.
Justice O'Connor: or separate elections?
What is it you're trying to achieve at the end of the day?
Just tell me.
Mr. Avila: At the end of the day we're trying to have an election system that complies with the substantive provisions of section 5.
Justice O'Connor: Well, what do you say that is?
Is it by separate districts, or a single 1983 judicial district?
Mr. Avila: It could be a combination.
That would be a best... a remedy.
It could be a combination of districts.
It can be a combination of multi-member...
Justice O'Connor: There's nothing that you're trying to get, then?
Well, I... in concrete terms, I'd like to know what you are seeking.
Mr. Avila: Well, what we're seeking is... basically what we're looking at is either a districting plan or a multi-member districting plan.
Justice O'Connor: Well, State law's eliminated multi-member districts now.
Mr. Avila: But if we have a... but if we have a substantive determination that the at-large election system, or that the conversion from nine districts to six judicial districts is in violation of section 5, then the district court is best able to address that particular question as far as a remedy is concerned.
Chief Justice Rehnquist: So Monterey County could be excluded from this general State legislation, under your view?
Mr. Avila: Yes, it could.
In fact... in fact, Monterey County, the State legislature has enacted State legislation that affected just Monterey County, so we're not asking...
Chief Justice Rehnquist: I thought it was... I thought it was they had enacted... revised the justice court system for the entire State.
Mr. Avila: That's correct.
Now, we're not... we're not requesting at this point to get back into the justice courts.
Basically what we're asking for is to secure compliance with section 5.
And what I'd like to do is...
Justice O'Connor: Well, but as a... it seems almost like you're avoiding answering.
Are you seeking, then, municipal courts, or do you want to go back and have some Justice of the Peace courts, too?
Mr. Avila: We want to maintain municipal courts.
Justice Scalia: Municipal courts.
Mr. Avila: That's right.
Justice O'Connor: And how... and in Monterey County, do you want them elected by judicial districts or in one single district, as State law now provides?
Mr. Avila: We want... one of the remedies that we have sought is the election by judicial districts.
Justice O'Connor: Thank you.
Mr. Avila: And I'd like to reserve my remaining time for rebuttal.
Argument of Paul R. Q. Wolfson
Chief Justice Rehnquist: Very well, Mr. Avila.
Mr. Wolfson, we'll hear from you.
Mr. Wolfson: Mr. Chief Justice, and may it please the Court:
Under section 5 of the Voting Rights Act a covered jurisdiction like Monterey County must obtain preclearance of any voting change that it enacts or that it seeks to administer.
This change... this case involves voting changes that the county seeks to administer.
In every election for county judges, Monterey County oversees and implements the process by which the voters are registered, by which candidates are placed on the ballot, and by which the winners are chosen in the election.
Chief Justice Rehnquist: Isn't that all pursuant to State law?
Mr. Wolfson: Well, the county... the county does have to follow State law in some respects, but the county operates the process.
I mean, when we refer to seeking to administer the voting change, we read that to mean, it runs the elections by...
Chief Justice Rehnquist: Even the entire compliance with the law of another sovereign, the State, you know, put up polling places, that is seeking to administer something?
Mr. Wolfson: Yes, it is, and in fact I point to two examples.
First, I mean, the court looked at a very similar matter in Perkins v. Matthews, where the State of Mississippi before the Voting Rights Act was enacted had shifted from single member districts to at-large elections, and when eventually the city got around to complying with that State law the court said, the change had to be precleared even though the formal enactment by the higher sovereign did not have to be precleared.
Another example, actually that's quite relevant here, is, of course, the literacy tests that occasioned the passing of section 5 of the Voting Rights Act.
It's quite clear in this case that those tests were mandated by California State law, and they were implemented throughout the State of California at the county level.
Chief Justice Rehnquist: You're talking about literacy tests in California?
Mr. Wolfson: Literacy tests were required by California State law.
They were struck down by the California supreme court in... I believe in 1970, after section 5 was long enacted.
Now, section 5...
Chief Justice Rehnquist: How does that bear on this case?
Mr. Wolfson: My point is that Congress understood that even though there might be a requirement that... a requirement of the State sovereign that the county follow some procedures, that the county might nonetheless not be able to do so under section 5.
And in situations like California and North Carolina, a very important example that was ostensibly discussed when the Voting Rights Act was initially enacted, it was clear to Congress that there could be situations where a State... there might be nothing wrong per se with a State law, but the effects that it had in certain jurisdictions did... might have had an effect on minority voting rights...
Chief Justice Rehnquist: But I don't see how that bears on the issue of seeks to administer.
Mr. Wolfson: Seeks to administer means, it runs the election.
Now, if I may address Justice Kennedy's question about, doesn't seek to administer indicate some kind of discretion, or some kind of wanting to administer itself and not just following State law.
I think that's a... seek to administer is purely temporal, and it should be contrasted with enacts.
The way that the statute is written is, if any jurisdiction enacts or seeks to administer something, a voting change, then it has to obtain preclearance.
Now, Congress didn't say seeks to enact, because the legislature can formally enact it into State law without obtaining the approval of the Attorney General or the district court.
That mean, before it's actually implemented it has to then obtain preclearance.
Justice Kennedy: Well, but if you couple enact with seek, enact indicates discretion.
Mr. Wolfson: I...
Justice Kennedy: And here I noticed you told the Chief Justice, well, the county has to do the polling and so forth.
The county can't do districts.
Districts must be set by the State.
Am I right about that?
Mr. Wolfson: Well, after the State... I mean, after the State... arguably the State has now required... has now required one district...
Justice Kennedy: But even before, the districts were set by the State law, were they not?
Mr. Wolfson: No.
I would say before that.
Certainly at the very beginning, in 1968, my understanding is that the county had discretion about how to draw those districts within the county lines.
So I mean, getting back to the point, I think that seeks to administer simply means to begin to run the process by which elections are operated.
There's no doubt that, on the ground that counties are the responsible authorities for doing...
Chief Justice Rehnquist: Well, supposing the State of California says there's going to be a 65-mile speed limit on our highways, and the county police are going to enforce it.
Now, is that something the county is seeking to administer?
Justice Scalia: They're told by the State they have to enforce the speed limit?
Mr. Wolfson: I think that it would be seeks to administer.
I mean, there are... I mean, leave aside the point that the county obviously has great discretion in how it would enforce that, but even so, I think that because the county actually operates the elections, that... you know, that is the process by which it seeks to administer...
Chief Justice Rehnquist: And how about the speed limit question?
Mr. Wolfson: I would say it seeks to administer, because it is foreseen that the... by hypothesis that the county patrol are the ones who enforce the State law in that section.
I do want to point out that it's a long been settled administrative practice that covered counties have been required to submit for preclearance.
Justice Scalia: Mr. Wolfson...
Justice O'Connor: They submit, or the State submits?
Mr. Wolfson: It has been both.
As a matter of...
Justice O'Connor: It has been...
Mr. Wolfson: Right.
As a matter of... no...
Justice Breyer: both if you're relying upon the text of the statute.
Mr. Wolfson: As a matter of convenience...
Justice Scalia: You say shall seek to administer.
Justice Breyer: It says such...
Mr. Wolfson: Right.
Justice Scalia: You know, such State or subdivision.
Mr. Wolfson: As a matter of convenience, from the point of view of administrative practice, the Attorney General has recognized that when a State law, be it... when a State law that generally affects one or more counties, but say when it affects two or three counties, when a State law passes it is more convenient for the State to submit that for preclearance, it is the burden is ultimately...
Justice Ginsburg: And that happened here, didn't it, with the one that was precleared?
Mr. Wolfson: Yes.
Justice Breyer: It was the State that submitted it, not the county.
Mr. Wolfson: That's correct.
That's correct, it did happen here, and...
Justice Ginsburg: May I get back to you, because your time is so brief.
What do you see as the bottom line, because as I understand it these ordinances cannot be precleared because the county has already admitted that they are...
Mr. Wolfson: Right.
Justice Ginsburg: They dilute, so these... submit these for preclearance, they won't make the grade, so what happens?
Mr. Wolfson: I mean, I need to be very cautious here, because the Department of Justice has not seen the factual evidence underpinning this, so...
Justice Ginsburg: But at least the county at a prior turn admitted in the D.C. district court.
Mr. Wolfson: I think that there are... I think that there are a variety of ways, assuming that the county still believed that it couldn't successfully submit for preclearance, and we are not prejudging that question, I do want to emphasize.
It might be that they would turn to single member districts instead of at-large voting.
There might be other ways in which section 5 concerns could be accommodated, like resident...
Justice Ginsburg: But then last time around we were told there was no way that they could do anything other than this...
Mr. Wolfson: Right.
Justice Ginsburg: without violating State law.
Mr. Wolfson: That's correct, but I think that they're... first of all, in the end, if State law conflicts with section 5 they have to follow section 5, but I'm not sure that that's the only... I'm not sure that dividing the county into single districts is the only option they have.
Justice Scalia: Well, what is it...
Mr. Wolfson: There could be residency requirements for judges.
Justice Ginsburg: But isn't that what the district judge was trying to do for years?
He says, come up with something that satisfies both Federal and State, and they couldn't.
Mr. Wolfson: Well, again I have to say, I think the only question here is whether preclearance is required.
The Department of Justice...
Justice O'Connor: Yes, but you want to look down the road.
This thing has been dragging on for years.
Mr. Wolfson: I under...
Justice O'Connor: Why can't we look at the bottom line and ask what we're talking about?
I guess bottom line from your perspective is violate State law and mandate single member districts.
Mr. Wolfson: If, but only if, it's determined that the State law would be retrogressive.
Justice Scalia: Why... why...
Mr. Wolfson: I don't think that single member districts is the only way.
There are other options.
There may be other options.
We have not looked at it, and I cannot...
Justice O'Connor: Well, the district court couldn't come up with any.
Mr. Avila couldn't come up with any.
Justice Scalia: What do you have in mind?
Mr. Wolfson: Well, there are situations, for example, where a county is... where there's at-large voting but judges are required to reside in different parts of the county, so that that might not violate the elector... the separation of electoral and jurisdictional bases.
I don't know whether that's been explored.
I don't believe it has, but if that were submitted to us we would certainly examine that to determine...
Justice Breyer: So what is the common sense... suppose California's right, suppose.
Look, we don't want, says California, to discriminate against anybody.
We're trying to change our judicial system.
We don't want 98,000 people called justice judges.
We want municipal judges, and there'll be one municipal judge in each county, or four.
That's all we're trying to do.
Look at it up, down, and sideways.
We're not trying to do anything else, no discrimination.
Now, California says there should be, if that's true, a fairly simple, efficacious manner of bringing it about.
Now, in your opinion, what is that efficacious manner, consistent with the law, if what they say is true, we're not trying to discriminate, we're trying to help our judicial system function better.
Mr. Wolfson: I think that there are... I mean, dividing it into districts could be one way.
If... that doesn't...
Justice Breyer: How can you divide it into districts if there's only like one municipal judge...
Mr. Wolfson: There's 10 judges.
There's 10 judges on this municipal court, and so dividing it into districts could be one way of making sure that there's no retrogression and also having... not having a situation where you had before, consolidation where there were 200 people for each judge.
You could still have consolidation that would give you the benefits of a more efficient judicial system, but it might not be fully at-large.
Argument of Daniel G. Stone
Chief Justice Rehnquist: Thank you, Mr. Wolfson.
Mr. Stone, we'll hear from you.
Mr. Stone: Mr. Chief Justice, and may it please the Court:
The district court's dismissal of this section 5 coverage case was quite correct, and we submit that it should be affirmed by this Court.
Justice Souter: Mr. Stone, I can't help but ask, was the issue of laches explored in the district court this last time around?
Mr. Stone: It was raised in our motion to dismiss as one of the grounds on which the case should be dismissed, but the district court did not reach it, and there were several other issues as well that the court found it unnecessary to reach.
Justice Kennedy: I'm having just a little bit of trouble hearing you.
Mr. Stone: Oh, I'm sorry.
The question related to whether laches had been raised, and I indicated that it was a ground in our motion to dismiss, but that the district court had not reached it.
This case presents a situation that was not contemplated by section 5, and it's a situation for which the preclearance requirement provides no meaningful remedy.
Here, if the appellants are correct, then the practical result would be no election for anybody with respect to municipal court judges in the County of Monterey indefinitely.
The district court, the coverage court, could enjoin elections under the current system to be sure, but, as everyone now agrees, the county has no authority, no remaining authority to conduct elections pursuant to the 1968 status quo system, and the county has no authority, as Justice O'Connor pointed out, to at this point create new justice court districts, to merge districts, or do anything.
Justice Scalia: Well, it can get that authority from the district court, I assume, if the district court should determine that that is the only way to bring the county in compliance with section 5.
Mr. Stone: Well, we suggest...
Justice Scalia: Does the district court prescribe it, even if it's different from what exists elsewhere in the State?
Mr. Stone: We suggest that the district court cannot in a coverage case suspend the constitution of a noncovered jurisdiction, that its remedial power necessarily, even if we're talking about the Washington, D.C. district court upon a finding of...
Justice Scalia: Cannot suspend the constitution of a noncovered jurisdiction within the covered jurisdiction?
Mr. Stone: Correct.
Justice Breyer: Why not?
Why can't... I mean, this is what I don't understand on your side of the case.
Assume you're right, California is just trying to implement some perfectly reasonable reform of the justice system, but they say that if you implement it in Monterey County it will have a retrogressive effect in respect to discrimination.
Now, you think one thing, they think the other.
Why wouldn't everyone long ago have gone to the D.C. circuit, where their job is to work this out?
I mean, that's what I don't understand why... why this has gone on for several years arguing... I don't get it, in other words.
It seems like a typical argument.
California has a law which it thinks is absolutely perfect.
They think, as applied to Monterey County it has a discriminatory effect.
The statute says, when a county administers a law... you know, a covered statute... that may have any change in voting at all, they're supposed to go to the D.C. circuit, so why aren't you in the D.C. circuit?
Mr. Stone: Well, your question suggested a host of answers, but initially we now have from the United States Government as amicus a concession that noncovered jurisdictions have no obligation to preclear anything.
The State of California is permitted, they say, as...
Justice O'Connor: Yes, well, the State has no obligation, they say, to preclear its law even as it affects Monterey County.
Mr. Stone: Correct.
Justice O'Connor: But Monterey County still has an ordinance of its own and wants to administer the State law so it can seek preclearance.
Mr. Stone: Well, under the United States' theory it is required to seek preclearance, not...
Justice Souter: Yes.
Mr. Stone: only of its own ordinances but of a State enactment.
Justice Scalia: Uh-huh.
Mr. Stone: Or in this case a State constitutional amendment...
Justice O'Connor: That's what they say.
Mr. Stone: that it did not initiate it, it has no authority to initiate it, and it can't change...
Justice O'Connor: But if they're right, then they'll have to seek preclearance, and if the Federal law prevails, it can prevail over California State law, presumably.
Mr. Stone: Well, if California itself, the State, as a noncovered jurisdiction has no obligation to preclear its enactments, and it does not by concession at this point, then how can the State...
Justice Breyer: But it's free to do so.
Mr. Stone: I'm sorry, Your Honor.
Justice Stevens: It's free to do so if it wants to, isn't it?
Couldn't it assume the burden of seeking preclearance?
Mr. Stone: Well, I suppose so, but then what does that do to its sovereignty?
Justice O'Connor: And it did, it did for the 1983 law.
The State did seek preclearance.
Mr. Stone: It did, and it has on and off over history.
Certainly we concede that a number of States in the position of California that are not themselves covered but that have covered subdivisions have, for whatever reasons, and I suspect they were often political reasons, attempts to reassure before enacting, perhaps to guarantee themselves that they wouldn't be subject to section 2 or constitutional lawsuits, they have willingly attempted to preclear through the U.S. Department of Justice.
Justice Kennedy: But let's assume that the 1983 clearance... statute was precleared.
Justice Breyer: It's been conceded that it was.
Justice Kennedy: Does that carry you home on the grounds that the 1983 statute permitted the consolidation of the remaining justice courts into the municipal court, and everybody knew that the municipal court was one district then because of the 1979 statute?
Do you make any argument that that carries you all the way home, or is that not before us, or...
Mr. Stone: Well, the district court indicated that the combination of the preclearance of the State's 1983 statute and of the county's final ordinance merging the last remaining justice courts into the municipal court, which was also precleared, that that combination put an end absolutely to anything other than a county-wide municipal court.
Now, I recognize that appellants have raised arguments that because the county was the acting agent in bringing those last two justice courts into the municipal court, that there was still some preclearance requirement.
The district court found there was not.
But that was all rendered moot when in 1994 the people of the State of California eliminated State-wide, as Justice Scalia pointed out, any justice courts.
There are no longer justice courts.
The State of California, a sovereign, uncovered State, is reforming a central component of its State government.
It's changing the nature of the judiciary in the State by eliminating...
Justice Kennedy: But if the justice courts are turning into municipal courts it doesn't follow that the municipal courts can't sit in districts, so I don't know if the 1994 proposition... I think it was 191... works.
Mr. Stone: Well, in this Court's prior Lopez opinion in 1996 it pointed out that in the State constitutional framework justice courts are for jurisdiction of less than 40,000, and municipal courts are for more than 40,000, and the requirement that a municipal court district have more than 40,000 State residents within it remains after proposition 191, so that a small justice court cannot become, in and of itself, a separate municipal court.
Justice Kennedy: Well, what does that add to what you already had from your 1983 statute...
Mr. Stone: Well, it doesn't add anything except...
Justice Breyer: It seems to me you don't need...
Mr. Stone: if one hypothesizes that had the county not willingly merged these last remaining justice courts, then, as the district court found, by operation of law, once justice courts were eliminated, the last two... had they still remained justice courts in Monterey County, they would automatically have been folded into the existing...
Justice Kennedy: But won't they say that still doesn't solve the problem of districting?
Okay, so they're municipal court judges.
They still want them to sit in districts.
Mr. Stone: Well, it's not a thing they can have, we submit, because the current district is defined by State law, and the State is not a covered jurisdiction.
Justice O'Connor: Well, but of course if the Federal law requires it then State law has to give way in Monterey County.
Mr. Stone: Well...
Justice O'Connor: That's the point.
Mr. Stone: That is the question, and...
Justice O'Connor: Well, I mean, what do you think the Supremacy Clause of the Constitution is all about?
Mr. Stone: No, you're absolutely correct, if... if the...
Justice O'Connor: I mean, if that is the law... if that is the law, that Federal law requires the election of judges by district in Monterey County, then it doesn't matter that the State law says something else.
Mr. Stone: Well, except that one has to define the Federal law in a way that it can reach and annul State law.
Justice Breyer: Well...
Chief Justice Rehnquist: But that's a statutory argument.
Mr. Stone: Correct.
The question is the plain meaning of section 2, and we've shown the Court in our briefs...
Justice Stevens: Mr. Stone, could I ask you a question about the conflict with the California law?
As I understand the California law, it requires a county-wide district for judicial purposes, for jurisdictional purposes, but does it speak to the question of how the judges will be elected?
In other words, would it necessarily conflict with State law if the county had a rule that said the district shall... county-wide... judges have county-wide jurisdiction, but one of the judges must be a resident of a certain part of the county, I mean, divide up the county residentially for voting purposes, something like that, that didn't affect their jurisdiction, would that conflict with State law?
Mr. Stone: Your hypothetical would involve subdistricts for election purposes?
Justice Stevens: Either subdistricts for election purposes or at least for residential... for qualification of the judges to live in a certain neighborhood or something like that.
Mr. Stone: Well, I'm not sure what the answer is to a residential requirement if there were county-wide voting for those people.
Justice Stevens: You think there would have to be county-side voting, though?
Mr. Stone: Yes.
That is a matter of the State constitution, Article VI, section 16.
Justice Stevens: But that does not...
Justice Kennedy: That applies to all counties?
Mr. Stone: Yes.
As to all judicial districts, every voter within a judicial district is entitled to vote for every judge of that district.
Justice Kennedy: But there are some counties...
in California with more than one judicial district.
Mr. Stone: Correct, and for that there are not county-wide elections, but there are always district-wide elections.
As I understood Justice Stevens' hypothetical, we had a county-wide court with some divisions or residency requirements within.
All I'm saying is, whatever the requirements may be, there would still have to be... if the jurisdiction of the municipal court district were county-wide, then every voter within that county would have a right under the State constitution to elect the judges thereof.
Chief Justice Rehnquist: Mr. Stone, this is not in the record, but someone told me recently that in Los Angeles County the superior court judges and the municipal courts have been combined so that there'll simply be one kind of judge there.
Do you know anything about that, and is it State-wide, or would that just be Los Angeles County?
Mr. Stone: It's rather a combination.
In June of this year the State constitution was amended to permit what's called unification of municipal and superior courts.
If the vote taken in a given county shows a majority of both the sitting municipal court judges and the sitting superior court judges in favor of that unification, at that point the municipal court in that county would be abolished, and apparently that's what occurred in Los Angeles County.
Justice Souter: Mr. Stone, is there... in the original pleadings was there both a section 2 and a section 5 case brought here?
Mr. Stone: There was not.
There has never been...
Justice Souter: So this is just a section 5 case.
Mr. Stone: Strictly section 5.
Justice Souter: Well, is part... I guess the reason I ask this is this.
Is part of your argument, or is it implicit in what you're arguing, that the district court would, in fact, have great discretion to fashion a remedy if it found a section 2 violation?
It could, for example, say the only way to eliminate the discriminatory effect that I find is to, in effect, to require as a remedial scheme four districts, each electing one judge, as opposed to one district from which four are elected.
However, is it implicit in your argument that the judge... that the district court does not have that degree of flexibility under section 5, that under section 5 all it can say is, you are supposed to preclear, you haven't, therefore preclear, and that its remedial discretion, its... the possibility of remedial creativity simply cannot go beyond that kind of yes or no order?
Mr. Stone: It could include... I have a couple of answers, but in the section 5 framework, in the coverage case as opposed to an action for declaratory relief in the Washington, D.C. district court...
Justice Scalia: Yes.
Mr. Stone: In the coverage case, all the coverage court can do is determine whether the challenged change is in fact...
Justice Souter: So that, I take it, is the reason that you're saying that there isn't anything... I think you're saying that the court cannot practically do... it cannot practically order the kind of remedy that the petitioners would like.
Mr. Stone: That's correct.
If the petitioners were... if the county were required to go to Washington, D.C. and preclear, or attempt to preclear its ordinances, it would be an utterly futile act at this point because the county has no remaining authority to implement those ordinances.
Justice Breyer: Why isn't it... look, I'm missing something, because it just... I thought that there's a statute, and what the statute that I have in front of me says is, whenever a political subdivision of a State... now, Monterey County is a political subdivision, right?
Mr. Stone: Yes.
Justice Breyer: And it's a covered subdivision, right?
Mr. Stone: Yes, correct.
Justice Breyer: So it says, whenever a political subdivision that is covered shall seek to administer any voting qualification or prerequisite to voting.
Now, I take it, in addition to all those ordinances the new State law, maybe with superior counties, everything else, is a prerequisite to voting.
I... there's no argument about that, is there?
Or maybe there is...
Mr. Stone: Well...
Justice Breyer: But I mean, at least I didn't see one here.
Mr. Stone: It's certainly an alteration.
Justice Breyer: All right... yes, fine.
It says, whenever that happens, what it says the political subdivision is supposed to do is to go to the Attorney General or the D.C. Circuit and get it cleared.
That's what the copy, I think, if I'm reading it correctly... so why isn't that the end of this part of the argument?
That is, you're in the wrong court.
You ought to be in the D.C. Circuit.
It should be precleared.
Now, it may be you have the best reasons in the world.
It may be that they filed 35 years too late.
It may be that there's no way to work out a good remedy, other... but all this is for the D.C. Circuit to decide, not for the California court.
Now, that, I take it, is their basic argument here.
Now, what's the response to that argument?
Mr. Stone: Well, as Justice Souter pointed out, in a section 5 coverage case, one of the issues that is before the district court is whether the voting change, the alleged voting change that is challenged, is in fact subject to preclearance in the first place.
Justice Breyer: Now, but I just read you the statute, I take it, that when you read it on its face it seems to be that it is subject to preclearance.
Justice O'Connor: Well, that's the very issue here, is it not?
Mr. Stone: Precisely.
Justice O'Connor: Yes.
I mean, that's what this case is about, to say yes or no to that, and if we say yes, then the district court, Federal district court in California has to simply say yes, it's covered, period.
Mr. Stone: Correct.
Justice O'Connor: Then it will be up to the county, if it wants to implement election of judges at all, to seek preclearance, or the State may, according to the Attorney General, the Solicitor General, the State may do it if it wants.
Mr. Stone: So the question is very much focused on the plain meaning of the phrase, seek to administer, and several of your questions to the appellant said so.
Justice Breyer: That's what I was trying to get to.
Mr. Stone: If the appellants' interpretation of seek to administer, which is that it encompasses anything and everything, regardless of source, that has any impact within the covered jurisdiction, if that were, that very, very broad interpretation were upheld by this Court, then it would be a direct reversal of Young v. Fordice.
In which case, as you'll recall, in Mississippi there was a challenge to Mississippi's implementation of the Federal National Voting Rights Act which very much changed the registration practices within the State, which is a covered State, and this Court said, to the extent that there is no discretion in the covered jurisdiction to make any changes or to select ways in which to implement this, it doesn't require preclearance.
It comes from a noncovered source.
Justice Souter: It also came from a Federal source, which was of equal dignity legally with section 5, and that's not what we're dealing with here.
Mr. Stone: No, I certainly concede that we're not in every respect in the same shoes as the Federal Government, but it seems to me for the narrow purposes of analyzing what seeks to administer means we are in the same shoes, in the sense that neither the State of California...
Justice O'Connor: Well, I think it's totally different.
If Federal law requires something, that is supreme, and obviously the covered jurisdiction has no choice.
This is a State law requirement...
Mr. Stone: Over which...
Justice O'Connor: so Federal law can mandate something different.
Mr. Stone: But the covered jurisdiction likewise has no choice with respect to California law when that law does not reserve any discretion within the covered jurisdiction.
Justice O'Connor: Well, it has no choice but to obey the order of the Federal court when the Federal court's intervention is sought.
In the meantime, it can't hold any elections.
Mr. Stone: My point is whether the covered jurisdiction is exercising any kind of discretion.
Recall that initially section 5 was designed in conjunction with section 4 to identify... through a statutory formula to identify those jurisdictions, and they were either States or political subdivisions...
Justice O'Connor: The statute doesn't speak of discretion.
It says, administer, so our question is, do we read some kind of discretion in there.
Mr. Stone: Well, we...
Justice O'Connor: whether it seeks to administer.
Mr. Stone: And we now have a concession from the appellants that the term, seeks to administer, can reasonably be used to speak of discretionary administrative acts by a covered jurisdiction.
This is in their reply brief.
It's the fist time they've said this.
Prior to this...
Justice Souter: Well, but where does that get you?
I mean, of course sometimes when one is seeking to administer something one may exercise discretion in figuring out how to do it.
Other times in seeking to administer something one need not.
In this particular case, it seems to be nondiscretionary, but I mean, the words, seek to administer, covers both.
Mr. Stone: Well, I suggest that it presents the Court with an ambiguity, that there are two alternative means of interpreting seeks to administer now.
As plaintiffs concede, it could be interpreted to focus simply on the administrative acts executive decisions, anything other than the formal promulgations by a covered jurisdiction.
Alternatively, it could be interpreted to be broadly to encompass anything and everything that's different, whether imposed from above or not, and because there's an ambiguity...
Justice Stevens: Well, it could be interpreted to mean anything and everything that's different as a result of a decision made at a non-Federal level.
That's a possible interpretation.
Mr. Stone: I suppose, but I suggest that that's a distinction that can't be found anywhere in the statute.
Certainly Your Honor could suggest it's implied, but the statute talks about covered versus noncovered...
Justice Stevens: Well, it seeks to... it's seeking to administer a State-directed change in election practices.
You say that's not covered because it was State-directed.
Mr. Stone: Yes.
Justice Stevens: But one could say that that's... in order to get away from the elephantine loophole, that that's a reasonable reading, because you do have to admit, it's a fairly large loophole if you say any covered jurisdiction doesn't have to change... it doesn't have to get preclearance whenever the State law authorizes it.
Mr. Stone: Well, we don't admit it's a loophole, because we think it's fairly strange...
Justice Stevens: No, you don't think it's a loophole, but it's a rather large noncovered area of the statute.
Mr. Stone: Well, it is, but there are, I don't know, what, 40-some-odd noncovered States in the Nation.
I mean, if you want to speak of loopholes, obviously the section 5 preclearance requirement has not been imposed by Congress upon everyone.
Justice Scalia: Why have those States that have cleared it in the past in such situations done so?
Mr. Stone: Well, I... that would require speculation on my part, Your Honor.
I suggest that it may have been political reasons, to show good faith to minority voters within the State, to try to avoid perhaps section 2 or constitutional challenges.
Justice Scalia: Are there many instances in which States have not done so?
Mr. Stone: Have not done so?
Justice O'Connor: Uh-huh.
Mr. Stone: I can't speak to that.
The cases deal with those in which the States have done so voluntarily.
Justice Scalia: Do you know of any where they have not done so?
Mr. Stone: Well, one of the cases here is the 1979 statute in California, which dictated a municipal court district and all parties concede that was not precleared.
The State did not seek preclearance of that and I suspect there are a number of other examples.
I'm just not aware of what they might be.
Justice Scalia: You don't... you're not aware that it's a practice in either direction.
Mr. Stone: No, I accept the United States representation that it's commonplace for jurisdictions in this situation to voluntarily seek preclearance, but I don't think that gets us anywhere as far as a holding of this Court.
As you know, all the Shaw cases and the Lawyer case from Florida and the UJO case from New York all came before the Court in the posture of a constitutional challenge, or a section 2 challenge to redistricting plans, and in reciting the history of the case the Court has pointed out that the States, North Carolina, Florida, New York, voluntarily sought preclearance administratively before finally deciding on a districting plan.
But there's no holding that analyzes, as this Court is now asked to do, what the plain meaning of the statute is, whether there's a clear statement by Congress that this section 5 is intended to go beyond the covered jurisdictions, and what the Federalism issues might be if such a...
Justice Breyer: Isn't there administrative discretion in the... was... my impression was that for quite a long time anyway under some of these ordinances Monterey had considerable discretion, say, to set boundaries, which they could have drawn in different ways, and even where there's one district they'd have discretion as to whether to have a residency requirement, for example, as whether not.
So if that word administer means, you have to have some discretion, which I don't know if it does or not, but if it does mean that, isn't there a significant amount here?
Chief Justice Rehnquist: Why not?
Mr. Stone: There was historically, Justice Breyer.
There... Government Code section 71040 gave to the counties the discretion to change boundaries as...
Justice Breyer: And now do they have some in respect to, say, imposing residence requirements?
Mr. Stone: No.
I think residence requirement is a State requirement, and...
Justice Breyer: But I'm... if they wanted to divide it by, in effect districts, by saying you have to have one of the 10 from this... these blocks, and another of the 10 has to live in a different place, could they do that?
Mr. Stone: I don't know the answer to that.
Maybe they could.
The State requirement is that everyone who is a justice of that court reside within the court, so if you wanted to parse it even smaller than that, perhaps there is discretion.
I don't know.
Justice Kennedy: In the counties which do have districts, Los Angeles, for instance... I assume they have districts... do those counties set the district lines, or does the State legislature do that?
Mr. Stone: It could be either way, and I'm not sure precisely in the case of Los Angeles.
Justice Kennedy: Are there any counties in the State of California with multiple judicial districts where the counties set the district lines?
Mr. Stone: Yes.
There is statutory discretion given to the counties unless the State acts otherwise, and what's happened here is the State has taken over.
Justice Kennedy: So then there would be no, really violation of overall State policy for Monterey to do this by compulsion of a Federal court in the D.C. Circuit...
Mr. Stone: To do...
Justice Kennedy: or in compliance with the plan.
Mr. Stone: To divide into subdivisions?
Justice Kennedy: In other words, some counties in California do set their own electoral district lines, and therefore it doesn't necessarily contravene State policy to do so in Monterey.
Mr. Stone: Well, I submit that it does, not only because in 1972 the State Judicial Council and the Chief Justice indicated that they thought that was the better way for Monterey County to operate, but also because much more recently the State has dictated that there be just one municipal court in Monterey County.
So the State policy with respect to this part of its overall judicial system has spoken, and has dictated... all parties are agreed here that the county no longer has any discretion to have a municipal court anything short of county-wide.
So my point is that, since we have this ambiguity, then under the cases relating to importance of Federalism, the Gregory v. Ashcroft, the New York v. United States, Will v. Michigan, they say that if there's only an ambiguity, if the most that the plaintiffs can show is an ambiguity, then that falls far short of the requisite clear statement...
Justice Stevens: Can I go back to Justice Kennedy's question for just a moment?
The State policy we're talking about of having just one judicial district in the county is a county-specific State policy, not a general State policy, isn't it?
Mr. Stone: Well, it's... with respect to municipal courts...
Justice O'Connor: Yes.
Mr. Stone: the statute that has county-wide municipal court in Monterey County is county-specific.
There's a superior court system, the next layer up and the one which can now be, at the choice of the counties, unified with municipal courts, that's always been county-wide by dictate of the State.
Justice Stevens: It doesn't seem to me so unusual to say that when a State has a county-specific policy relating to a covered county, that there may be special reason for the State law to bow to the Federal law that applies only to that county.
Mr. Stone: The problem the State has with that is that it takes the presumption which attaches with application of section 5... if you're a covered jurisdiction, you're presumed to have had a history of wrongdoing, and you're suspected in the future of making voting changes designed to undermine the voting rights of minority voters.
Justice Scalia: Or having the effect of undermining.
Mr. Stone: Or having the effect.
Justice Scalia: Yes, but... that's right, and the State can do that just as readily as the county can.
Mr. Stone: But the point is...
Justice Scalia: In fact, more readily, because it's not trying to be careful not to undermine it, and that makes it very sensible to clear the State's plans for what it's effect is in the county.
Mr. Stone: But Justice Scalia, the State has not been identified as a wrongdoer.
The preclearance requirement is a remedy for wrongdoing identified by Congress.
Justice Scalia: Right, but once you acknowledge that there need... that there... the only wrongdoing that's relevant is past wrongdoing, that there need not be intentional wrongdoing in enacting the new plan... the new plan may simply have the effect, in good faith and without the intent to discriminate, but it has a bad effect.
Once you acknowledge that, I don't see any reason to think that... any reason in policy why the State's plan having that effect shouldn't be cleared just as well as the county's plan having that effect.
Mr. Stone: Well, the policy issue goes to the allocation of burdens.
If you're a section 5 identified covered county, then it's your burden to go to Washington, D.C. and establish that your... that the voting change that you desire and that you have fashioned... the court uses all kinds of terms like fashioned, adopt, seek to undertake and so on.
It all suggests that it's the covered jurisdiction's initiative that leads to this voting change, and they have the burden to show that it isn't a bad thing.
Why should the State, which has never been viewed a covered jurisdiction under any...
Justice Stevens: No, but you can't say the State has never been a wrongdoer, because it had the literacy test which was wrongful to the extent that it affected counties in which there was this particular result that occurred in Monterey County, and the State was the source of the wrongdoing.
Mr. Stone: I...
Justice Breyer: So the State is the wrongdoer.
Mr. Stone: I would very much dispute that.
This county has less than 1.2 percent of the State of California population.
All four covered counties within the State combined have less than 3 percent...
Justice Stevens: No, but was it not a State statute requiring literacy tests that was the wrong that gave rise to the coverage?
Mr. Stone: It was not.
The test for coverage is two-pronged.
One is the existence of...
Justice Stevens: Right, but half of it was by the State and half was the impact in that county.
Mr. Stone: But the State's literacy test was not a wrong.
There were literacy tests across the country at the time the Voting Rights Act was passed.
The wrong Congress looked at, and again it was just a formulaic, mechanical wrong, but it was the voter turnout, because Congress recognized that literacy tests were prone to abuse.
They had all manner of room for local discretion.
So it's not the test.
If it were the test, then every State that had a test would be a covered jurisdiction thereafter.
Justice Souter: Every county in California would be covered.
Mr. Stone: And every county in California.
Justice Scalia: No, but it was...
I don't accept your argument that... you seem to assume that I'm saying the State has to clear it.
I don't think the State has to clear it.
I think the county has to clear it, and the county is a covered jurisdiction.
Mr. Stone: But isn't that anomalous when the county can do nothing to change it, and the county is asked to come and defend it.
It may not have the desire to defend it.
This particular county may be entirely against the State's new law or new policy.
It may not have the financial resources fairly and adequately to defend it, and it comes in there without any power to change it, so you would have... and one needs look no further than this case to see the kind of...
Justice Breyer: Well, it wasn't anomalous.
If you go back into history, I take it the history of this was there'd be a lot of places in the south where they vote in a town by district, and say they were 40 percent black and 60 percent white, and then soon as you had to let black people vote, what they did was suddenly switch to a system that was a single district, and now it could be in many of those towns they would have said, well, we won't have it ourselves, and lo and behold you discover the State legislature implementing it throughout the entire State.
Of course, the State's a covered jurisdiction.
Justice Souter: Now, historically that was an evil, wasn't it?
Mr. Stone: Well...
Justice Breyer: No, but in States... I think there are some States where the State is not a covered jurisdiction, and I take it... is that...
North Carolina I thought was, and I thought that the same problem would exist there, and that that was the history of this.
Mr. Stone: But the question is whether there's any justification, any constitutional justification, I would submit, for assuming wrongdoing on the part of a noncovered State without approving...
Justice Breyer: It wasn't to assume wrongdoing.
Mr. Stone: Well...
Justice Breyer: It was to try to cure the problem in the county.
Mr. Stone: But you have shifted the burdens.
If you require a noncovered jurisdiction to come and prove, absent any proof of wrongdoing, you've shifted the burdens in a manner that I suggest is unconstitutional.
In Katzenbach this Court pointed out what a very important element it was for Congress surgically to have identified the wrongdoers before imposing the preclearance requirement.
Chief Justice Rehnquist: Thank you, Mr. Stone.
Mr. Stone: Thank you.
Justice Souter: Mr. Avila, you have 3 minutes remaining.
Rebuttal of Joaquin G. Avila
Mr. Avila: Thank you, Mr. Chief Justice, and may it please the Court:
Referring back to a point that was made by Justice Scalia, even a law with a State-wide effect might still have a greater effect on those counties that Congress designated for section 5 purposes.
As long as the covered jurisdiction is implementing a change, section 5 applies, and that common sense understanding of the term was reflected in the Court's earlier opinion in this case when, writing for a unanimous Court, Justice O'Connor stated that a section 5-covered jurisdiction must obtain preclearance beforea voting change.
Those were the words used by this Court to describe the operative effect of section 5, and when we look at the administrative practices of the Attorney General in Sheffield, this Court held that the Attorney General's interpretation of section 5 is, quote, persuasive evidence of original understanding.
So what we're trying to do in this case is merely maintain what's been going on for the past three decennial redistrictings, and when we look at what... in fact, what the State of California and the county administers at the local level, we know that the county administers the election machinery and the personnel that actually administer the State elections, and in our brief we cite to numerous State statutes in which the State mandates that a particular election occur, and that the county is directed to administer that election.
Justice Kennedy: If the 1983 statute was precleared, wasn't that against a background where there was a single district, and why shouldn't that end this case?
Mr. Avila: It does not end the case because when you're talking about reviewing a voting change you're talking about what happened before and what happened after.
The 1983 State statute only referred to the conversion from three judicial districts to a single county-wide district.
It did not start off with the November 1968 nine judicial district plan, and we do not have the conversion before the Department of Justice or the D.C. court between nine districts...
Justice Kennedy: I don't understand.
If the 1983 statute provided for a single judicial district, and this has been precleared, getting back to Justice O'Connor's question, what's left?
Mr. Avila: What's left is the judicial... what's left is the preclearance of nine districts which existed on November 1, 1968, to three districts which existed in 1983.
The 1983 State statute only converted three judicial districts into a single county-wide.
Whenever you examine voting change, it's examining from what, from what is it being changed from, to what is it being changed to, and that's precisely the point that we're making in this argument.
Thank you very much.
Chief Justice Rehnquist: Thank you, Mr. Avila.
The case is submitted.