MORRIS v. GRESSETTE

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.

I

The events leading up to this litigation date back to November 11, 1971, when South Carolina enacted Act 932 reapportioning the State Senate.1 South Carolina promptly submitted Act 932 to the Attorney General of the United States for preclearance review pursuant to § 5 of the Voting Rights Act. 79 Stat. 439, as amended, 42 U. S. C. § 1973c (1970 ed., Supp. V).2 That section forbids States subject to the Act to implement any change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" without first (i) obtaining a declaratory judgment from the District Court for the District of Columbia that the proposed change "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 (ii) submitting the change to the Attorney General and receiving no objection within 60 days.3 While the Attorney General had Act 932 under review, several suits were filed in the United States District Court for the District of South Carolina challenging that Act as violative of the Fourteenth and Fifteenth Amendments and seeking to enjoin its enforcement until preclearance had been obtained under § 5. The cases were consolidated and a three-judge District Court was convened.

On March 6, 1972, the Attorney General interposed an objection to Act 932.4 Although the South Carolina District Court was aware of this objection—an objection that, standing alone, would have justified an injunction against enforcement of the Act—the court proceeded to address the constitutional validity of the reapportionment plan.5 That court rejected the Fifteenth Amendment claim for lack of evidence that Act 932 was racially motivated, but held that the Act violated the Fourteenth Amendment due to malapportionment. The court retained jurisdiction and allowed South Carolina 30 days to enact an acceptable substitute reapportionment plan. Twiggs v. West, Civ. No. 71-1106 (SC, Apr. 7, 1972).

On May 6, 1972, a new senate reapportionment plan was enacted into law as § 2 of Act 1205.6 This new plan was filed with the District Court, and it was submitted to the Attorney General on May 12 for preclearance review. On May 23 the District Court found the plan constitutional.7 By letter dated June 30, the Attorney General notified South Carolina that he would not interpose an objection to the new plan because he felt "constrained to defer to the . . . determination of the three-judge District Court" in Twiggs v. West, supra.8 App. 48. Thus, as of June 30, 1972, § 2 of Act 1205 had been declared constitutional by a three-judge District Court, and the Attorney General had declined to interpose an objection under § 5 of the Voting Rights Act.9

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 response to this order, the Attorney General stated that in his view the plan violated the Fifteenth Amendment, but he reaffirmed his refusal to interpose an objection on the ground that he was constrained to defer to the ruling of the District Court in Twiggs v. West. App. to Brief for Appellants 4a. On July 19, 1973, the District of Columbia District Court directed the Attorney General to consider Act 1205 without regard to the decision in Twiggs v. West. The next day the Attorney General interposed an objection because he was "unable to conclude that Act No. 1205 does not have the effect of abridging voting rights on account of race." App. 52.

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,10 and that § 5 requires him to make an independent determination on the merits of § 5 issues. Harper v. Levi, 171 U. S. App. D. C. 321, 520 F.2d 53 (1975).

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 subsequently obtained a favorable declaratory judgment from the United States District Court for the District of Columbia. The three-judge District Court convened under § 5 dismissed the complaint. 425 F.Supp. 331 (1976). It held that the doctrine of collateral estoppel did not preclude it from considering South Carolina's contention that, notwithstanding the decision in Harper v. Levi, supra, the requirements of § 5 were satisfied when the Attorney General failed to interpose an objection within 60 days after submission to him of Act 1205.11 The District Court also ruled that the Administrative Procedure Act did not authorize judicial review of the Attorney General's initial determination to defer to the ruling of the three-judge District Court in Twiggs v. West. In light of these considerations, the District Court concluded that the failure of the Attorney General to interpose an objection within the applicable 60-day period left South Carolina free to implement the new senate reapportionment plan.

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.

II

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.12 It is conceded that no objection was entered within the 60-day period. 425 F. Supp., at 333. But appellants insist that the Attorney General's nunc pro tunc objection of July 20, 1973, is effective under the Act and thus bars implementation of the reapportionment plan. Since that objection was interposed pursuant to the District Court's order in Harper v. Kleindienst, its validity depends on whether the Harper court had jurisdiction under the Administrative Procedure Act to review the Attorney General's failure to object.13

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." 5 U. S. C. § 701 (a).14 It is now well settled that "judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).15 The reviewing court must determine whether "Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion." Barlow v. Collins, 397 U.S. 159, 165 (1970).

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 legislation conforms to the Constitution and to the provisions of the Voting Rights Act. See South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966). Section 5 establishes two alternative methods by which covered jurisdictions can comply with this severe requirement of federal preclearance review. First, a covered jurisdiction may file a declaratory judgment action in the District Court for the District of Columbia and subsequently may implement the change in voting laws if that court declares that the change "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." 42 U. S. C. § 1973c (1970 ed., Supp. V). Second, a covered jurisdiction may submit a change in voting laws to the Attorney General and subsequently may enforce the change if "the Attorney General has not interposed an objection within sixty days after such submission." Ibid.

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.16 To the contrary, compliance with § 5 is measured solely by the absence, for whatever reason, of a timely objection on the part of the Attorney General.17 And this Court has recognized that "[o]nce the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5." Allen v. State Bd. of Elections, supra, at 549-550.

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.18

In light of the potential severity of the § 5 remedy, the statutory language, and the legislative history, we think it clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions. The congressional intent is plain: The extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission.19 Although there was to be no bar to subsequent constitutional challenges to the implemented legislation, there also was to be "no dragging out" of the extraordinary federal remedy beyond the period specified in the statute. Switchmen v. National Mediation Board, 320 U. S., at 305. Since judicial review of the Attorney General's actions would unavoidably extend this period, it is necessarily precluded.20

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.21 The statute expressly provides that neither "an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object . . . shall bar a subsequent action to enjoin enforcement" of the newly enacted legislation or voting regulation. Cf. Dunlop v. Bachowski, 421 U.S. 560, 569-570 (1975). It is true that it was the perceived inadequacy of private suits under the Fifteenth Amendment that prompted Congress to pass the Voting Rights Act. Allen v. State Bd. of Elections, 393 U. S., at 556 n. 21; South Carolina v. Katzenbach, 383 U. S., at 309. But it does not follow that Congress did not intend to preclude judicial review of Attorney General actions under § 5.22 The initial alternative requirement of submission to the Attorney General substantially reduces the likelihood that a discriminatory enactment will escape detection by federal authorities.23 Where the discriminatory character of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation. But it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under § 5, or his failure to object within the statutory period.24

III

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.25 South Carolina is therefore free to implement its reapportionment plan for the State Senate.

Affirmed.

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 Rights Act, as amended, 42 U. S. C. § 1973c (1970 ed., Supp. V), cannot be questioned in any court. Under the Court's ruling, it matters not whether the Attorney General fails to object because he misunderstands his legal duty, as in this case; because he loses the submission; or because he seeks to subvert the Voting Rights Act. Indeed, the Court today grants unreviewable discretion to a future Attorney General to bargain acquiescence in a discriminatory change in a covered State's voting laws in return for that State's electoral votes.1 Cf. J. Randall & D. Donald, The Civil War and Reconstruction 678-701 (2d ed. 1961) (settlement of the election of 1876).

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 mechanism to be vitiated at the whim of an Attorney General. Legal analysis supports the conclusion that Congress did no such thing. But today, the majority puts aside both common sense and legal analysis, relying instead on fiat. I dissent.

I

A

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 § 5.2 And, as the majority notes, it is indeed "well settled that `judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.'" Ante, at 501, quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967). If the Court applied rather than merely acknowledged this standard, the judgment below would be reversed.

The Voting Rights Act does not explicitly preclude review of the Attorney General's actions under § 5. The absence of such a provision places on appellees "the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of [the Attorney General's] decision[s]." Dunlop v. Bachowski, 421 U.S. 560, 567 (1975). The normal "strong" presumption is strengthened still further in this case by the express prohibition, contained in § 4 (b) of the Act, 42 U. S. C. § 1973b (b), of judicial review of the Attorney General's determinations under that section as to which States are covered by the Act.3 If the Congress that wrote § 4 had also intended to preclude review of the same officer's actions under § 5, it would certainly have said so. The Court makes no effort to explain why the congressional silence in § 5 should be treated as the equivalent of the congressional statement in § 4.

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 the submitted laws, but it does not impose any duties on the Attorney General. The time limit on the Attorney General's action, and not any requirement that he review submitted laws for compliance with the Voting Rights Act is, according to the Court, the key aspect of the part of § 5 with which we are concerned.

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."4 Ibid. We also upheld the Attorney General's placement of the burden of proof on States submitting legislation for approval, because

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).5 Moreover, the regulation also specifies the actions the Attorney General must take:

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.6 It was, therefore, his duty to object to implementation of that legislation. He did not perform that duty,7 deferring instead to a District Court judgment that the majority concedes should not have been entered.8

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),9 for one reason only: The statute contains a deadline within which the Attorney General must act. This holding that the existence of a deadline for the performance of an administrative duty is a "persuasive reason" to believe that failure to perform that duty cannot be reviewed is unique among our decisions.10 I trust it will remain unique. Nothing in the existence of a deadline for the performance of an administrative duty provides persuasive reason—or indeed any reason at all—to believe that failure to perform that duty cannot be reviewed.11 The illogic of the Court's argument transmogrifies a deadline for action into an impenetrable shield for inaction.

B

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,12 but the Court unanimously rejected the Government's argument that the propriety of the objection was "outside the permissible scope of judicial inquiry." Brief for United States in Georgia v. United States, O. T. 1972, No. 72-75, p. 38.

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.13 I can find no support for such a bizarre rule. I am sure that others, especially members of the Congress whose intent the Court is supposedly following, will be equally baffled.

II

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.14 Thus, South Carolina, which was a leader of the movement to deprive the former slaves of their federally guaranteed right to vote, South Carolina v. Katzenbach, 383 U. S., at 310-311, and n. 9, 333-334, is allowed to remain as one of the last successful members of that movement. It would take much more evidence than the Court can muster to convince me that this result is consistent with "Congress' firm intention to rid the country of racial discrimination in voting." Id., at 315. Certainly the Court has failed to identify "`clear and convincing evidence,'" Abbott Laboratories v. Gardner, 387 U. S., at 141, that this result is compelled by the Act Congress passed to implement that intention.

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 decision not to make an independent assessment of South Carolina Act 1205 is reviewable under the circumstances of this case, and that § 5 of the Voting Rights Act of 1965 requires him to make an independent determination on the merits of the § 5 issues. See ante, at 497-498. For the reasons stated by the majority opinion in Harper v. Levi, I dissent.