This appeal presents a challenge to the scope of the remedy allowed by a three-judge District Court for the Middle District of Georgia for failure of appellees to comply with the approval provisions of § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c (1970 ed., Supp. V).
In 1968, the State of Georgia enacted a statute intended to stagger the terms of the three members of the Peach County Board of Commissioners of Roads and Revenues. The then-existing statute, adopted in 1964, provided that all three posts were to be filled at four-year intervals. By operation of the
Four days prior to the August 10, 1976, primary election for the two seats on the Board not including the at-large post, appellants filed this action to enforce the requirements of § 5. Appellants' requests for declaratory and injunctive relief were not acted upon until after the scheduled 1976 primary and general elections.
On February 28, 1977, the three-judge court, without a hearing, enjoined further enforcement of the 1968 statute until such time as appellees effected compliance with § 5. However, the District Court refused appellants' request to set aside the 1976 elections, noting "the rather technical changes made in the county's election law by the 1968 amendment and, more important, the apparent lack of any discriminatory purpose or effect surrounding the use of the law in the 1976 elections." In expressly limiting its order to prospective relief, the District Court also relied on our decision in Allen v. State Board of Elections, 393 U.S. 544 (1969).
On April 26, 1977, the three-judge court denied appellants' motion for reconsideration.
In this Court, appellants take the position that the relief awarded in this case is wholly inadequate in failing to remedy the existing § 5 violation. Appellants assert that by refusing either to set aside the 1976 election or to order that all three Board members be elected in 1978, the District Court, at least until the 1980 election, leaves undisturbed the effects of the § 5 violation, thereby acknowledging that, at least for a time, local officials may successfully disregard § 5 requirements.
At our request, the United States, as amicus curiae, has filed a brief in this case. The Government takes the view, espoused by appellants, that the 1976 election was affected by the voting change prescribed in the 1968 statute and that the District Court's failure to require prompt compliance with § 5 permits the violation to continue. It is the submission of the United States that the question whether the staggering of Board terms provided for by state statute in this case necessarily has a racially discriminatory effect should properly be promptly submitted to either the District Court for the District of Columbia or to the Attorney General in conformity with the approval procedures set forth in § 5.
In Perkins v. Matthews, 400 U.S. 379 (1971), decided after Allen, supra, we had occasion to address the remedy issue which now confronts us. We indicated in that case that "[i]n certain circumstances . . . it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local official fail to do so or if the required federal approval is not forthcoming." 400 U. S., at 396-397. The circumstances present here make such a course appropriate.
In this case, appellees' undisputed obligation to submit the 1968 voting law change to a forum designated by Congress has not been discharge. We conclude that the requirement of federal scrutiny imposed by § 5 should be satisfied by appellees without further delay. Accordingly, we adopt the suggestion of the United States that the District Court should enter an
The judgment of the District Court is affirmed insofar as it holds that appellees have violated the approval provisions of § 5 of the Voting Rights Act; the judgment is reversed insofar as it denies affirmative relief, and the case is remanded to the District Court with instructions to issue an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5, and for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring.
I join the Court's opinion. The Court is surely correct that the District Court committed reversible error by not, at the very least, ordering the Peach County officials to seek preclearance of the voting change enforced in the 1976 election and affording appellants the opportunity, if prior approval is not granted, to seek an order that would cut short the terms of the two Commissioners elected in 1976 and require a new election under the pre-1968 law. The District Court manifestly erred in refusing to order such relief on the basis of its conclusion that the change was "rather technical" with no "apparent discriminatory purpose or effect." Nothing could be clearer than that a district court—other, of course, than the District Court for the District of Columbia—has no jurisdiction to assess the purpose or effect of any voting change. See, e. g., United States v. Board of Supervisors, 429 U.S. 642 (1977); Perkins v. Matthews, 400 U.S. 379, 385 (1971).
Although the Court does not reach this issue, I think it clear
However, while I, therefore, agree that the District Court committed reversible error, I am also of the view that, in the circumstances of this case, a strong argument can be made that, whether or not preclearance can be obtained, the only sufficient remedy is to set aside the 1976 election and order a new election under the pre-1968 law. Here, the Peach County officials could not have reasonably believed at the time of the 1976 election that the 1968 voting change could continue to be validly enforced without obtaining prior federal approval; thus the situation is quite different from that present in cases like Perkins v. Matthews, supra, where the scope of the § 5 duty had been unsettled at the time of the election that was under attack.
If, in cases like the present one, the remedy of ordering a new election is not to be required in all cases, the political units covered by § 5 may have a positive incentive flagrantly to disregard their clear obligations and not to seek preclearance of proposed voting changes. For covered jurisdictions will then know that a § 5 violation, if a suit is brought, can only result in their being denied the right to continue to enforce those voting changes that could not have received federal approval in the
The legislative background of § 5 strongly suggests to me that Congress expressly intended to preclude such a state of affairs. Section 5, of course, was intended to prevent those States which had a history of racial discrimination in voting from adhering to their long-established practices of continually contriving new laws to deprive blacks of any newly won voting rights. Congress sought to place the burden of inertia and litigation delay on the perpetrators of the discrimination by requiring affected States voluntarily to submit any new law affecting voting for federal approval before it became effective. The remedial theory the Court embraces today may retard, not further, the objective of having polities voluntarily comply with § 5, for a possible consequence may well be that a very large share of the burden of implementing federal policy will be placed on public and private enforcement. We ought to have the benefit of full briefing and oral argument to help indicate whether this will be the case.
I do not regard Perkins v. Matthews, supra, as necessarily supporting the Court's decision. While it is true that the Court there stated that there might be circumstances in which it would be appropriate to order a new election only if federal approval for the voting change were not procured within a specified time period, 400 U. S., at 396, the context of this statement clearly suggests that it is intended to apply only to cases in which it had not been reasonably clear at the time of the election that the change was covered by § 5. Ibid.
MR. JUSTICE POWELL, concurring in the judgment.
Although I believe that the wiser course would be simply to affirm the judgment below, I go along reluctantly with the Court's resolution of this case rather than bring it here for argument. I am willing to do this only because I consider it most unlikely that the Attorney General could find any reasoned basis for denying approval of the change at issue in this case. Thus, it is improbable that the court below ever will have to pass on the request to cut short the terms of the two Commissioners elected in 1976 which the Court allows appellants to "renew" if the change is not approved. Ante, at 193. I write to emphasize my view that the three-judge court cannot be faulted for its common-sense handling of this case. I do not understand the Court to disagree with this view.
The facts and procedural posture of this case deserve a fuller treatment than the Court gives them. Under a state law enacted in 1964, the Board of Commissioners of Roads and Revenues for Peach County, Ga., is composed of three members, assigned to numbered posts. 1964 Ga. Laws No. 800, § 1, p. 2627. Posts 1 and 2 are filled by residents of designated districts, and Post 3 is elected at large. Until 1968, all three posts were elected simultaneously for four-year terms. In 1968, the Georgia Legislature enacted a statute providing for a partial staggering of the Commissioners' terms. 1968 Ga. Laws No. 800, § 2A, p. 2473. Under the statute, Post 3, the at-large seat, was to be elected to a two-year term in 1968, and thereafter to four-year terms. No change was made in
Elections were held under the amendment in 1968, 1970, 1972, and 1974 without challenge. It was only on August 6, 1976—four days before the 1976 primary election—that appellants filed this lawsuit seeking to enjoin that election and the general election on the ground that the amendment had not received the imprimatur of the Attorney General or the District Court for the District of Columbia as required by § 5 of the Voting Rights Act of 1965. A single judge of the District Court, acting promptly, ruled on appellants' motion for a preliminary injunction before the primary election was held. That judge, "seriously question[ing]" whether the change even was covered by § 5, and apparently in view of the tardiness of the suit—which to this day has not been explained—sensibly refused to enjoin the election. App. to Jurisdictional Statement 7a.
After the 1976 primary and general elections for Posts 1 and 2 had been held, a three-judge District Court was convened. That court concluded that the 1968 amendment was subject to the preclearance requirements of § 5 after all, and it enjoined enforcement of the 1968 amendment until those requirements had been met. "Given the rather technical changes made in the county's election law by the 1968 amendment and, more important, the apparent lack of any discriminatory purpose or effect surrounding the use of the law in the 1976 elections," however, the court denied appellants' request to set aside those elections. Id., at 2a-3a, citing Allen v. State
Appellants then filed a motion for reconsideration and modification of the three-judge court's order. In this motion appellants—for the first time—asked the three-judge court to order that all three posts stand for election in 1978 if the change was not approved by then, thus cutting short the terms of the two Commissioners elected in 1976. See Jurisdictional Statement 7 n. 1, 15-16; Brief for United States as Amicus Curiae 4. The three-judge court refused to consider this belated request, stating: "The problem of relief is a question for a single-judge court." App. to Jurisdictional Statement 5a. Appellants, however, did not accept this clear invitation to press their request before a single-judge court.
Instead, they brought the instant appeal, urging the Court either to set aside the 1976 elections, or to cut short the terms of the two Commissioners elected in 1976 by declaring all three posts open in 1978. The United States as amicus curiae does not support appellants' request that the 1976 election be set aside. Neither does it support appellants' request that the Court declare all three posts open in 1978. Instead, it seeks relief that appellants never have requested, either in the court below or in this Court. It asks the Court to enter an order directing the District Court to give appellees 30 days within which to seek § 5 preclearance. If preclearance is not sought or if the change is not approved, the United States then argues that the District Court should be directed to allow appellants "to renew their request for election of all three members at
In my view, the Court would be fully justified in holding that the United States, which is not a party to this suit and did not participate in the court below, is barred from injecting a new issue into the case by requesting the Court to grant relief that appellants themselves never have sought. It would be equally justified in holding that appellants are barred from asking the Court to declare all three posts open in 1978 after the three-judge court declined to rule on this belated request and after appellants ignored that court's express invitation to press their request before a single-judge court. As a general rule, this Court does not and should not allow parties or amici to raise issues here that were not raised in or ruled upon by the lower courts. Neither should this Court encourage parties to bypass avenues of relief that are open to them in the lower courts. The facts that the case is a Voting Rights Act case, and that the amicus is the United States, provide no justification for departing from these salutary principles.
Since the Court has chosen, without explanation, to depart from these principles, I briefly address the question of relief that is presented. Appellees do not challenge the three-judge court's holding that § 5, as it has been expanded by judicial decision since enactment of the 1968 amendment at issue here, requires preclearance of that amendment. Nor do they challenge that court's entry of an injunction against enforcing the amendment in future elections until the change is approved. All they ask is that if the change is not approved, such a ruling should not be applied retroactively to abrogate the result of elections already held. In my view, there is much force to their plea.
This case is a classic example of how § 5, enacted to further
It must be remembered that the Voting Rights Act imposes restrictions unique in the history of our country on a limited number of selected States.
Thus, although I agree with the Court that the three-judge court did not err in refusing to set aside the 1976 elections, I remain dubious as to whether it would be any more proper for that court to order all three posts to stand for election in 1978 if the change is not approved. As the Court's order is framed, however, this question still is open in the District Court if the change is not approved.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE STEVENS joins, dissenting.
No party to this case has requested this Court to issue an order requiring or allowing appellees to apply for approval of the 1968 voting change under § 5 of the Voting Rights Act of 1965. The United States, when requested by this Court to express its views, made such a request. But the United States is only an amicus curiae in this case, and it has no standing to request relief which has never been requested by the parties. The opinion of the Court goes not merely beyond the scope of any relief sought from the District Court, but also decides questions beyond those presented in the jurisdictional statement
I would affirm the judgment of the District Court in its entirety.
It then remands the case "to the District Court with instructions to issue an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5, and for further proceedings consistent with this opinion." Ante, at 193. But the Court does not direct the District Court to grant any "renewed" request that appellants may make. All that it orders is that the District Court allow appellees 30 days within which to seek preclearance and allow appellants to "renew" their request for simultaneous elections in 1978 if the change is not approved.