MR. JUSTICE POWELL delivered the opinion of the Court.
The issue in this case concerns the scope of judicial review of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act of 1965 to a change in the voting laws of a jurisdiction subject to that Act.
The events leading up to this litigation date back to November 11, 1971, when South Carolina enacted Act 932 reapportioning the State Senate.
On March 6, 1972, the Attorney General interposed an objection to Act 932.
On May 6, 1972, a new senate reapportionment plan was enacted into law as § 2 of Act 1205.
Not content with the Attorney General's decision to defer to the judicial determination of the three-judge District Court, several of the named plaintiffs in the consolidated Twiggs action commenced another suit in the United States District Court for the District of Columbia on August 10, 1972, in which they challenged the Attorney General's failure to object to the new senate reapportionment plan. On May 16, 1973, that court ordered the Attorney General to make "a reasoned decision in accordance with his statutory responsibility." Harper v. Kleindienst, 362 F.Supp. 742, 746 (1973). In
On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed. It held that the Attorney General's decision not to interpose an objection was reviewable under the circumstances of this case,
Armed with the decision of the Court of Appeals and the belated objection interposed by the Attorney General, two South Carolina voters filed the present suit in the United States District Court for the District of South Carolina as a class action under § 5 of the Voting Rights Act. See Allen v. State Bd. of Elections, 393 U.S. 544, 557-563 (1969). The plaintiffs, appellants here, sought an injunction against implementation of § 2 of Act 1205 on the ground that the Attorney General had interposed an objection and the State had not
We noted probable jurisdiction to determine the reviewability of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act. 429 U.S. 997 (1976). For the reasons stated below, we affirm.
The ultimate issue in this case concerns the implementation of South Carolina's reapportionment plan for the State Senate. Since that plan has not been declared by the District Court for the District of Columbia to be without racially discriminatory purpose or effect, it can be implemented only if the Attorney General "has not interposed an objection" to the plan within the meaning of § 5 of the Voting Rights Act.
The Administrative Procedure Act stipulates that the provisions of that Act authorizing judicial review apply "except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."
As no provision of the Voting Rights Act expressly precludes judicial review of the Attorney General's action under § 5, it is necessary to determine "whether nonreviewability can fairly be inferred." 397 U. S., at 166. See Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 157 (1970); Switchmen v. National Mediation Board, 320 U.S. 297 (1943). That inquiry must address the role played by the Attorney General within "the context of the entire legislative scheme." Abbott Laboratories v. Gardner, supra, at 141.
The nature of the § 5 remedy, which this Court has characterized as an "unusual" and "severe" procedure, Allen v. State Bd. of Elections, 393 U.S. 544, 556 (1969), strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review. Section 5 requires covered jurisdictions to delay implementation of validly enacted state legislation until federal authorities have had an opportunity to determine whether that
According to the terms of § 5, a covered jurisdiction is in compliance pursuant to the latter alternative once it has (i) filed a complete submission with the Attorney General, and (ii) received no objection from that office within 60 days. This second method of compliance under § 5 is unlike the first in that implementation of changes in voting laws is not conditioned on an affirmative statement by the Attorney General that the change is without discriminatory purpose or effect.
Although there is no legislative history bearing directly on the issue of reviewability of the Attorney General's actions under § 5, the legislative materials do indicate a desire to provide a speedy alternative method of compliance to covered States. Section 8 of the original bill provided for preclearance review only by means of a declaratory judgment action in the District Court for the District of Columbia. Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965) (hereafter Senate Hearings). Justified concerns arose that the time required to pursue such litigation would unduly delay the implementation of validly enacted, nondiscriminatory state legislation. Cognizant of the problem, Attorney General Katzenbach suggested that the declaratory judgment procedure "could be improved by applying it only to those laws which the Attorney General takes exception to within a given period of time." Senate Hearings 237. The legislation was changed to incorporate this suggestion.
Our conclusions in this respect are reinforced by the fact that the Attorney General's failure to object is not conclusive with respect to the constitutionality of the submitted state legislation.
For these reasons, we hold that the objection interposed by the Attorney General to § 2 of Act 1205 on July 20, 1973, nunc pro tunc, is invalid.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
The Court holds today that an Attorney General's failure to object within 60 days to the implementation of a voting law that has been submitted to him under § 5 of the Voting
Common sense proclaims the error of this result. It is simply implausible that Congress, which devoted unusual attention to this Act in recognition of its stringency and importance, see South Carolina v. Katzenbach, 383 U.S. 301, 308-309 (1966), intended to allow the Act's primary enforcement
I agree with the majority that the dispositive issue in this case is whether Congress has precluded all judicial review of the Attorney General's failure to enter an objection to implementation of a state statute submitted to him for review under § 5.
The Voting Rights Act does not explicitly preclude review of the Attorney General's actions under § 5. The absence
Not only is there nothing in § 5 precluding review, there is also, as the Court admits, "no legislative history bearing directly on the issue of reviewability of the Attorney General's actions under § 5." Ante, at 503. Thus, all the Court offers in support of its conclusion that the strengthened presumption of reviewability should be disregarded in this case is an inference that review must be foreclosed to serve the assertedly primary congressional purpose of limiting the time during which covered States are prevented from implementing new legislation. That inference is purportedly drawn from an inquiry into "the role played by the Attorney General within `the context of the entire legislative scheme.'" Ante, at 501, quoting Abbott Laboratories v. Gardner, supra, at 141. In fact, however, the Court completely ignores the Attorney General; the majority's version of § 5 requires a covered State to submit its statutes to a mailing address at the Department of Justice and to wait for 60 days before implementing
We have previously taken a much different view of § 5. Just four years ago, in Georgia v. United States, 411 U.S. 526 (1973), we were required to consider the Attorney General's role in § 5. We recognized that in doing so,
Because the provision for submission to the Attorney General was meant only to ameliorate and not to change the "essential" burden of § 5, we upheld regulations that deferred the beginning of the 60-day review period created by the Act until a submission satisfied certain criteria. We noted that "[t]he judgment that the Attorney General must make is a difficult and complex one," 411 U. S., at 540 (emphasis added), and that if he could not await complete information, "his only plausible response to an inadequate or incomplete submission would be simply to object to it."
In contrast to today's ruling, we held that providing such a path was not the function of the proviso to § 5 which established clearance by the Attorney General as an alternative to the declaratory judgment action.
Our description in Georgia v. United States of the very limited function of the proviso supports the conclusion that the Attorney General should respond to a submitted statute as would the District Court for the District of Columbia if the State brought a declaratory judgment action seeking approval of that statute. The regulation approved by the Court in Georgia v. United States explicitly imposes that obligation on the Attorney General. 28 CFR § 51.19 (1976).
This validly adopted regulation, which clearly requires the Attorney General to enter an objection unless he determines the submitted legislation has neither the proscribed purpose nor the forbidden effect, is binding on the Attorney General. See United States v. Nixon, 418 U.S. 683, 695-696 (1974); Vitarelli v. Seaton, 359 U.S. 535 (1959); Service v. Dulles, 354 U.S. 363 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).
Thus, both the statute and the regulation impose on the Attorney General a duty to review submitted statutes and disapprove them unless he is satisfied that they meet the standards established by the Act. It is undisputed in this case that the Attorney General, after reviewing the reapportionment legislation submitted by South Carolina, was unable to make that determination.
The majority holds that this failure is insulated from judicial review under the provision of the Administrative Procedure Act expressly designed for such defaults, 5 U. S. C. § 706 (1),
The Court's conclusion is not only inconsistent with our description of § 5 in Georgia v. United States, it is also flatly inconsistent with our holding in that case. For in Georgia v. United States, we reviewed the standard by which the Attorney General determined to object to implementation of a submitted statue. The majority approved of the standard, and the dissenters objected to it,
The Court simply ignores this glaring contradiction between our action in Georgia v. United States and its holding today. Since the Court does not overrule Georgia v. United States, I can only conclude that the law now allows review of the Attorney General's decision to object to implementation of a statue, but it does not allow review of his failure to object.
Perhaps out of justifiable embarrassment, the majority never mentions the effect of its ruling. That effect is easy to describe: The Court today upholds a system of choosing members of the South Carolina Senate that has prevented the election of any black senators, despite the fact that 25% of South Carolina's population is black.
It is true that today's decision does not quite spell the end of all hope that the South Carolina Senate will someday be representative of the entire citizenry of South Carolina. If the Decennial Census in 1980 requires substantial reapportionment, and if the Voting Rights Act is still in effect when that reapportionment takes place, and if the then Attorney General is conscientious, the devices approved today will be rejected under the strict standards of § 5. See Georgia v. United States, 411 U. S., at 531. But see Beer v. United States, 425 U.S. 130 (1976). This highly contingent possibility that the promise of the Fifteenth Amendment will be realized in South Carolina, some 110 years after that Amendment was ratified, is apparently sufficient in the eyes of the majority. It is not sufficient for me, as it was not for Congress, which wrote the Voting Rights Act in 1965 to put an end to what was then "nearly a century of widespread resistance to the Fifteenth Amendment." South Carolina v. Katzenbach, supra, at 337.
MR. JUSTICE BLACKMUN, dissenting.
In Harper v. Levi, 171 U. S. App. D. C. 321, 520 F.2d 53 (1975), the United States Court of Appeals for the District of Columbia Circuit held that the Attorney General's
"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b (a) of this title based upon determinations made under the first sentence of section 1973b (b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f) (2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court."
The constitutionality of this procedure was upheld in South Carolina v. Katzenbach, 383 U.S. 301 (1966). It has been held applicable when a State or political subdivision adopts a legislative reapportionment plan. Beer v. United States, 425 U.S. 130 (1976); Georgia v. United States, 411 U.S. 526 (1973); Allen v. State Bd. of Elections, 393 U.S. 544 (1969).
"Prior to final arguments, the Attorney General of the United States had refused to approve the Act under the terms of the Voting Rights Act of 1965. The defendants stated, during argument, that they intended to contest that decision of the Attorney General in the District Court of the District of Columbia, which, by law, is the proper forum for review under the terms of the Voting Rights Act of 1965. We shall accordingly not consider the claims of the plaintiff McCollum, under the Voting Rights Act, but shall confine our consideration to the claims of invalidity under the Fourteenth and Fifteenth Amendments, which admittedly are properly before this Court." App. to Jurisdictional Statement 30a.
Section 3 of Act 1205 extended the numbered-post requirement to existing multimember districts in the State's House of Representatives, the other chamber of the South Carolina General Assembly.
The Mine Workers case involved the power of a district court to hold a party in contempt for disobedience of an order directed to that party. Appellants' reliance on that case is misplaced, for South Carolina was not a party to the Harper litigation and was not under a court order restraining enforcement of § 2 of Act 1205. Here the validity of the District Court's interlocutory order in Harper v. Kleindienst eventually turns on the reviewability of the Attorney General's initial decision not to enter an objection to § 2 of Act 1205. If Congress has precluded judicial review of the Attorney General's actions under § 5, the Harper court's interlocutory order cannot validate the Attorney General's nunc pro tunc objection of July 20, 1973.
Nothing in our opinion in Georgia v. United States suggests that Congress did not intend to preclude judicial review of the Attorney General's failure to interpose an objection within 60 days of a complete submission. The factors relied on in that case are inapplicable once a complete submission has been pending before the Attorney General for 60 days. Indeed, subsequent judicial review of the Attorney General's failure to interpose a timely objection to a complete submission would itself "add acrimony" by denying covered jurisdictions the statutorily prescribed "rapid method of rendering a new state election law enforceable." Allen v. State Bd. of Elections, 393 U. S., at 549; see Georgia v. United States, supra, at 538.
"[Counsel]: We think—
"QUESTION: Isn't that your position in its ultimate effect?
"[Counsel]: If that were his objection, we would be quite confident in coming to the District Court of the District of Columbia ourselves, if he had objected on that basis.
"QUESTION: No, I said, he didn't object; he says, we're interposing no objection because your state voted right at the last election. Now what if he did that? Would that be reviewable? In your submission, it would not be; isn't that correct?
"[Counsel]: It would not—it would not fall within the kind of review being sought here.
"[Counsel]: I don't think we want to go so far as to say that what the Attorney General—
"QUESTION: Well, your argument does go, and necessarily goes that far, as I understand it; and I don't find that shocking." Tr. of Oral Arg. 52-53.
I take the majority to have rejected these holdings, since the Court would not need to consider whether Congress had precluded review if it agreed with the District Court that appellants did not have standing or that the failure to object is not a reviewable agency action under the Administrative Procedure Act, 5 U. S. C. § 704. Since the majority rejects these holdings, I merely note that in my view, these alternative holdings of the District Court are patently erroneous.
"Section 5, in providing for submission to the Attorney General as an alternative to seeking a declaratory judgment from the U. S. District Court for the District of Columbia, imposes on the Attorney General what is essentially a judicial function. Therefore, the burden of proof on the submitting authority is the same in submitting changes to the Attorney General as it would be in submitting changes to the District Court for the District of Columbia. The Attorney General shall base his decision on a review of material presented by the submitting authority, relevant information provided by individuals or groups, and the results of any investigation conducted by the Department of Justice."
"(1) compel agency action unlawfully withheld or unreasonably delayed."
"Surely, objections by the Attorney General would not be valid if that officer considered himself too busy to give attention to § 5 submissions and simply decided to object to all of them, to one out of 10 of them or to those filed by States with governors of a different political persuasion. Neither, I think, did Congress anticipate that the Attorney General could discharge his statutory duty by simply stating that he had not been persuaded that a proposed change in election procedures would not have the forbidden discriminatory effect. It is far more realistic and reasonable to assume that Congress expected the Attorney General to give his careful and good-faith consideration to § 5 submissions and, within 60 days after receiving all information he deemed necessary, to make up his mind as to whether the proposed change did or did not have a discriminatory purpose or effect, and if it did, to object thereto." 411 U. S., at 543 (emphasis added).
Under the majority's holding today, of course, failure to object for any of the reasons my Brother considered clearly invalid would not be subject to judicial correction.