JUSTICE WHITE delivered the opinion of the Court.
This appeal challenges a three-judge District Court's construction and application of § 5 of the Voting Rights Act, 79 Stat. 437, as amended, 42 U. S. C. § 1973c. That section provides that certain jurisdictions, including the one in which this case arose, may not implement any election practices different from those in force on November 1, 1964, without first obtaining approval from the United States District Court for the District of Columbia or, alternatively, from the Attorney General.
As of November 1, 1964, the Hampton County, South Carolina, public schools were governed by appointed officials and an elected Superintendent of Education. The county comprises two school districts, School District No. 1, where the vast majority of white students live, and School District No. 2, which is predominantly black.
On February 18, 1982, apparently in an attempt to facilitate consolidation of these two School Districts,
The State did not submit Act No. 549 to the Attorney General for clearance until June 16, 1982, 22 days after it was approved in the referendum and 68 days after it had been enacted.
Because the State was contemplating requesting the Attorney General to reconsider this objection, the County Election Commission continued to accept filings under Act No. 549 through the end of the designated filing period, August 31. On that date, the State officially requested reconsideration.
On November 19, the Attorney General withdrew his objection to Act No. 549. The objection had been based primarily on the possibility that the County Board, which the Act would abolish, might have consolidated the two School Districts, but, upon reappraising South Carolina law, the Attorney General concluded that the Board lacked authority to approve such a consolidation. Therefore, its elimination would not have a potentially discriminatory impact.
The effect of the Attorney General's clearance of Act No. 549 was to render Act No. 547 — and the November elections held pursuant to it — null and void. In response to a request for advice, the South Carolina Attorney General informed the County Election Commission in January that
On March 11, appellants, two civil rights organizations and several residents of Hampton County, filed suit in the United States District Court for the District of South Carolina seeking to enjoin the election as illegal under § 5 of the Voting Rights Act. The defendants were the County Election Commission, the two School Districts, and various county officials. The complaint identified a number of alleged "changes" in election procedure, including the scheduling of an election at a time other than that specified in the statute, and the use of the August filing period for the March election.
Appellants contend that the opening of the August filing period before preclearance, and the scheduling of an election in March after the Attorney General had approved only a November election date, are changes that come within the scope of § 5. Appellees, echoing the rationale of the District Court, maintain that opening the filing period as required by Act No. 549 — albeit before the Act had been approved — was merely a preliminary step in its implementation. If the Attorney General had ultimately disapproved Act No. 549, the county would not have held an election under it, and the filing period would have become a nullity. Because Act No. 549 was in fact cleared, the filing period it specified was necessarily cleared as well. The alteration of the date of the election, according to appellees, was merely an "unfreezing" of a process that had been temporarily suspended by the operation of the Voting Rights Act. Although appellees concede that a legislatively enacted change in the date of an election is covered by the Act,
We need not decide whether a jurisdiction covered by § 5 may ever open a filing period under a statute that has not yet been precleared.
These changes cannot fairly be characterized as "ministerial" in light of the sweeping objectives of the Act. The Voting Rights Act was aimed at "the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race." Allen v.
Developments since the passage of the Act provide no basis for concluding that our cases had misinterpreted the intent of Congress. On the contrary, the legislative history of the most recent extension of the Voting Rights Act in 1982 reveals that the congressional commitment to its continued enforcement is firm. The Senate Committee found "virtual unanimity among those who [had] studied the record," S. Rep. No. 97-417, p. 9 (1982), that § 5 should be extended. And, as it had in previous extensions of the Act, Congress specifically endorsed a broad construction of the provision.
Although this Court has never addressed itself to alterations in voting procedures that exactly parallel those at issue in this case, we have twice held that the rescheduling of a candidate qualifying period is a "change" that comes within
Any doubt that these changes are covered by § 5 is resolved by the construction placed upon the Act by the Attorney
Among the specific examples of changes listed in the regulations is "[a]ny change affecting the eligibility of persons to become or remain candidates." § 51.12. Pursuant to these regulations, the Attorney General has, since 1980, reviewed approximately 58 changes in election dates and approximately 10 changes in dates for candidate filing periods. In none of these instances did the Attorney General advise the covered jurisdiction that its submission was not a "change," and on several occasions objections were interposed.
Appellees argue that these changes in voting procedures were exempt from preclearance because literal compliance with § 5 was impossible. The Attorney General did not approve the November election date until after that date had passed; hence, it was necessary to schedule another election date. Also, it is said that if the legislature had passed a statute setting a March election date and submitted it to the Attorney General, preclearance might not have been obtained by the date of the March election. In that event, yet another amendment would have been necessary, requiring yet another submission. The process might have continued ad infinitum.
Appellees would have us hold that the changes here at issue did not require preclearance because they were undertaken in good faith, were merely an attempt to implement a statute that had already been approved by the Attorney General, and were therefore an improvement over prior voting procedures. But the Attorney General's approval of Act No. 549 signified only that it was not discriminatory, not that it was an improvement over Act No. 547, which had also been approved. Furthermore, neither the absence of discriminatory purpose nor a good-faith implementation of a change removes the potential for discriminatory effects.
Relying on Berry v. Doles, 438 U.S. 190 (1978), the District Court held as an alternative ground that these changes were implicitly approved when the Attorney General withdrew his objection to Act No. 549. Berry involved changes in voting procedures that were implemented without first being submitted to the Attorney General. In a decision rendered after the election had already taken place, a three-judge District Court held that the changes should have been submitted under § 5 and enjoined further enforcement of the statute, but refused to set aside the election. We held that the appropriate remedy was to allow the covered jurisdiction 30 days in which to apply for approval of the change. We further stated:
Regardless of whether this is a fair characterization of the holding of Berry, it clearly has no application to the facts of this case. The changes we have identified here — the retention of an August filing period in conjunction with a March election, and the scheduling of the March election — had not even been decided upon by state authorities at the time the Attorney General approved Act No. 549. That statute provided for an August filing period and a November election, which, as we have demonstrated, is quite another matter. Even an informal submission of a change in voting procedures does not satisfy the requirements of § 5: the change must be submitted "in some unambiguous and recordable manner." Allen, 393 U. S., at 571. See also McCain v. Lybrand, 465 U.S. 236 (1984); United States v. Sheffield Board of Comm'rs, 435 U.S. 110, 136 (1978). A change that was never submitted at all does not meet this standard. The Attorney General cannot be said to have validated these changes, retroactively or otherwise, because they were never before him.
Appellees' use of an August filing period in conjunction with a March election, and the setting of the March election date itself, were changes that should have been submitted to the Attorney General under § 5. These changes cannot be said to have been approved along with Act No. 549. As in Berry v. Doles, supra, it is appropriate in these circumstances for the District Court to enter an order allowing appellees 30 days in which to submit these changes to the Attorney General for approval. 438 U. S., at 192-193. If appellees fail to seek this approval, or if approval is not
We therefore reverse the District Court's judgment that § 5 was not violated by appellees' failure to secure approval of these changes, and remand for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE POWELL and JUSTICE REHNQUIST concur in the judgment.
"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. . . 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 . . . : Provided, That such qualification . . . may be enforced without such proceedings if the qualification . . . 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 . . . . In the event that 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 option of obtaining preclearance from the Attorney General, rather than from the District Court for the District of Columbia, was added to the original legislation " `to provide a speedy alternative method of compliance to covered States.' " McCain v. Lybrand, 465 U.S. 236, 246 (1984) (quoting Morris v. Gressette, 432 U.S. 491, 503 (1977)).
"Timely submission of proposed changes before their implementation is the crucial threshold element of compliance with the law. The Supreme Court has recognized that enforcement of the Act depends upon voluntary and timely submission of changes subject to preclearance.
"The extent of non-submission documented in both the House hearings and those of this Committee remains surprising and deeply disturbing. There are numerous instances in which jurisdictions failed to submit changes before implementing them and submitted them only, if at all, many years after, when sued or threatened with suit.
"Put simply, such jurisdictions have flouted the law and hindered the protection of minority rights in voting." S. Rep. No. 97-417, supra, at 47-48.
Generally, statutes that are subject to § 5 are ineffective as laws until they have been cleared by federal authorities. Connor v. Waller, 421 U.S. 656 (1975) (per curiam).
The determination whether a change has a discriminatory purpose or effect, which is committed by statute to the Attorney General, is distinct from the determination whether failure to submit the change requires that the election be set aside. The latter determination must be made by the District Court, after the Attorney General has passed on the substantive nature of the change.