U.S. Supreme Court ALLEN v. STATE BOARD OF ELECTIONS, 393 U.S. 544 (1969) 393 U.S. 544

ALLEN ET AL. v. STATE BOARD OF ELECTIONS ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. No. 3. Argued October 15, 1968. Decided March 3, 1969.*

[Footnote *] Together with No. 25, Fairley et al. v. Patterson, Attorney General of Mississippi, et al., No. 26, Bunton et al. v. Patterson, Attorney General of Mississippi, et al., and No. 36, Whitley et al. v. Williams, Governor of Mississippi, et al., on appeal from the United States District Court for the Southern District of Mississippi, argued on October 16, 1968.

[Page 393 U.S. 544, 545]

Virginia that the statute providing for handwritten write-in votes and the modifying bulletin violated the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act. In the 1966 election appellants attempted to use labels for write-in candidates, but the election officials refused to count appellants' ballots. Appellants sought only prospective relief, as the election outcome would not have been changed if the ballots had been counted. In the District Court they did not argue that 5 precluded enforcement of the procedure set out in the bulletin but that 4 suspended the write-in requirement. The three-judge court dismissed the complaint. Held:

1. Since the Virginia legislation was generally attacked as inconsistent with the Voting Rights Act, and there is no factual dispute, the Court may, in the interests of judicial economy, determine the applicability in No. 3 of 5 of the Act, even though that section was not argued below. P. 554.

2. Private litigants may invoke the jurisdiction of the district courts to obtain relief under 5, to insure the Act's guarantee that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to that section. Pp. 554-557.

3. The restriction of 14 (b) of the Act, which provides that "[n]o court other than the District Court for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this subchapter," does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to 5's approval requirements, and these actions may be brought in the local district courts. Pp. 557-560.

4. In light of the extraordinary nature of the Act and its effect on federal-state relationships, and the unique approval requirements of 5, which also provides that "[a]ny action under this section shall be heard and determined by a court of three judges," disputes involving the coverage of 5 should be determined by three-judge courts. Pp. 560-563.

[Page 393 U.S. 544, 547]

Aschenbrenner was on the brief for appellants in Nos. 25 and 26. With Mr. Derfner on the brief for appellants in No. 36 were Alvin J. Bronstein and Richard B. Sobol.

R. D. McIlwaine III, First Assistant Attorney General of Virginia, argued the cause for appellees in No. 3. With him on the brief were Robert Y. Button, Attorney General, William R. Blandford, and William C. Carter. William A. Allain and Will S. Wells, Assistant Attorneys General of Mississippi, argued the cause for appellees in Nos. 25, 26, and 36. With Mr. Allain on the brief for appellees in No. 25 were Joe T. Patterson, Attorney General, and Dudley W. Conner. With Mr. Wells on the briefs for appellees in Nos. 26 and 36 was Mr. Patterson.

Assistant Attorney General Pollak argued the cause for the United States, as amicus curiae, urging reversal in Nos. 25, 26, and 36. With him on the brief were Solicitor General Griswold, Louis F. Claiborne, Francis X. Beytagh, Jr., and Nathan Lewin.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These four cases, three from Mississippi and one from Virginia, involve the application of the Voting Rights Act of 1965[Footnote 1] to state election laws and regulations. The Mississippi cases were consolidated on appeal and argued together in this Court. Because of the grounds on which we decide all four cases, the appeal in the Virginia case is also disposed of by this opinion.[Footnote 2]

[Page 393 U.S. 544, 548]

In South Carolina v. Katzenbach, 383 U.S. 301 (1966), we held the provisions of the Act involved in these cases to be constitutional. These cases merely require us to determine whether the various state enactments involved are subject to the requirements of the Act.

We gave detailed treatment to the history and purposes of the Voting Rights Act in South Carolina v. Katzenbach, supra. Briefly, the Act implemented Congress' firm intention to rid the country of racial discrimination in voting. It provided stringent new remedies against those practices which have most frequently denied citizens the right to vote on the basis of their race. Thus, in States covered by the Act,[Footnote 3] literacy tests and similar voting qualifications were suspended for a period of five years from the last occurrence of substantial voting discrimination. However, Congress apparently feared that the mere suspension of existing tests would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect.[Footnote 4] Not underestimating the ingenuity of those bent on preventing Negroes from voting, Congress therefore enacted 5, the focal point of these cases.

[Page 393 U.S. 544, 549]

Columbia that the new enactment "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." 79 Stat. 439, 42 U.S.C. 1973c (1964 ed., Supp. I). See Appendix, infra.

However, 5 does not necessitate that a covered State obtain a declaratory judgment action before it can enforce any change in its election laws. It provides that a State may enforce a new enactment if the State submits the new provision to the Attorney General of the United States and, within 60 days of the submission, the Attorney General does not formally object to the new statute or regulation. The Attorney General does not act as a court in approving or disapproving the state legislation. If the Attorney General objects to the new enactment, the State may still enforce the legislation upon securing a declaratory judgment in the District Court for the District of Columbia. Also, the State is not required to first submit the new enactment to the Attorney General as it may go directly to the District Court for the District of Columbia. The provision for submission to the Attorney General merely gives the covered State a rapid method of rendering a new state election law enforceable.[Footnote 5] Once the State has successfully complied with the 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional

[Page 393 U.S. 544, 550]

suits attacking its constitutionality; there is no further remedy provided by 5.

In these four cases, the States have passed new laws or issued new regulations. The central issue is whether these provisions fall within the prohibition of 5 that prevents the enforcement of "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" unless the State first complies with one of the section's approval procedures.

No. 25, Fairley v. Patterson, involves a 1966 amendment to 2870 of the Mississippi Code of 1942.[Footnote 6] The amendment provides that the board of supervisors of each county may adopt an order providing that board members be elected at large by all qualified electors of the county. Prior to the 1966 amendment, all counties by law were divided into five districts; each district elected one member of the board of supervisors. After the amendment, Adams and Forrest Counties adopted the authorized orders, specifying that each candidate must run at large, but also requiring that each candidate be a resident of the county district he seeks to represent.

The appellants are qualified electors and potential candidates in the two counties. They sought a declaratory judgment in the United States District Court for the Southern District of Mississippi that the amendment to 2870 was subject to the provisions of 5 of the Act and hence could not be enforced until the State complied with the approval requirements of 5.[Footnote 7]

No. 26, Bunton v. Patterson, concerns a 1966 amendment to 6271-08 of the Mississippi Code.[Footnote 8] The amendment

[Page 393 U.S. 544, 551]

provides that in 11 specified counties, the county superintendent of education shall be appointed by the board of education. Before the enactment of this amendment, all these counties had the option of electing or appointing the superintendent. Appellants are qualified electors and potential candidates for the position of county superintendent of education in three of the counties covered by the 1966 amendment. They sought a declaratory judgment that the amendment was subject to 5, and thus unenforceable unless the State complied with the 5 approval requirements.

No. 36, Whitley v. Williams, involves a 1966 amendment to 3260 of the Mississippi Code, which changed the requirements for independent candidates running in general elections.[Footnote 9] The amendment makes four revisions: (1) it establishes a new rule that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election; (2) the time for filing a petition as an independent candidate is changed to 60 days before the primary election from the previous 40 days before the general election; (3) the number of signatures of qualified electors needed for the independent qualifying petition is increased substantially; and (4) a new provision is added that each qualified elector who signs the independent qualifying petition must personally sign the petition and must include his polling precinct and county. Appellants are potential candidates whose nominating petitions for independent listing on the ballot were rejected for failure to comply with one or more of the amended provisions.[Footnote 10]

[Page 393 U.S. 544, 552]

In all three of these cases, the three-judge District Court ruled that the amendments to the Mississippi Code did not come within the purview of and are not covered by 5, and dismissed the complaints.[Footnote 11] Appellants brought direct appeals to this Court.[Footnote 12] We consolidated the cases and postponed consideration of jurisdiction to a hearing on the merits. 392 U.S. 902 (1968).

No. 3, Allen v. State Board of Elections, concerns a bulletin issued by the Virginia Board of Elections to all election judges. The bulletin was an attempt to modify the provisions of 24-252 of the Code of Virginia of 1950 which provides, inter alia, that "any voter [may] place on the official ballot the name of any person in his own handwriting . . . ."[Footnote 13] The Virginia Code ( 24-251) further provides that voters with a physical incapacity may be assisted in preparing their ballots. For example, one who is blind may be aided in the preparation of his ballot by a person of his choice. Those unable to mark their ballots due to any other physical disability may be assisted by one of the election judges. However, no statutory provision is made for assistance to those who wish to write in a name, but who are unable to do so because of illiteracy. When Virginia was brought under the coverage of the Voting Rights Act of 1965, Virginia election officials apparently thought that the provision in 24-252, requiring a voter to cast a write-in vote in the voter's own handwriting, was incompatible with the provisions of 4 (a) of the Act suspending the

[Page 393 U.S. 544, 553]

enforcement of any test or device as a prerequisite to voting.[Footnote 14] Therefore, the Board of Elections issued a bulletin to all election judges, instructing that the election judge could aid any qualified voter in the preparation of his ballot, if the voter so requests and if the voter is unable to mark his ballot due to illiteracy.[Footnote 15]

Appellants are functionally illiterate registered voters from the Fourth Congressional District of Virginia. They brought a declaratory judgment action in the United States District Court for the Eastern District of Virginia, claiming that 24-252 and the modifying bulletin violate the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act of 1965. A three-judge court was convened and the complaint dismissed.[Footnote 16] A direct appeal was brought to this Court and we postponed consideration of jurisdiction to a hearing on the merits. 392 U.S. 902 (1968).

[Page 393 U.S. 544, 554]

of the procedure prescribed by the bulletin. Rather, they argued 4 suspended altogether the requirement of 24-252 that the voter write the name of his choice in the voter's own handwriting. Appellants first raised the applicability of 5 in their jurisdictional statement filed with this Court. We are not precluded from considering the applicability of 5, however. The Virginia legislation was generally attacked on the ground that it was inconsistent with the Voting Rights Act. Where all the facts are undisputed, this Court may, in the interests of judicial economy, determine the applicability of the provisions of that Act, even though some specific sections were not argued below.[Footnote 17]

[Page 393 U.S. 544, 555]

that a State has failed to comply with the provisions of the Act.[Footnote 18] However, 5 does provide that "no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, 5]." Analysis of this language in light of the major purpose of the Act indicates that appellants may seek a declaratory judgment that a new state enactment is governed by 5. Further, after proving that the State has failed to submit the covered enactment for 5 approval, the private party has standing to obtain an injunction against further enforcement, pending the State's submission of the legislation pursuant to 5.[Footnote 19]

[Page 393 U.S. 544, 556]

The Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens. South Carolina v. Katzenbach, supra, at 308, 309. Congress realized that existing remedies were inadequate to accomplish this purpose and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws.[Footnote 20]

The achievement of the Act's laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General.[Footnote 21] For example, the provisions of the Act extend to States and the subdivisions thereof. The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government.[Footnote 22]

[Page 393 U.S. 544, 557]

It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the 5 approval requirements.

We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action. In J. I. Case Co. v. Borak, 377 U.S. 426 (1964), we were called upon to consider 14 (a) of the Securities Exchange Act of 1934. 48 Stat. 895, 15 U.S.C. 78n (a). That section provides that it shall be "unlawful for any person . . . [to violate] such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." We held that "[w]hile this language makes no specific reference to a private right of action, among its chief purposes is `the protection of investors,' which certainly implies the availability of judicial relief where necessary to achieve that result." 377 U.S., at 432.

A similar analysis is applicable here. The guarantee of 5 that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to 5, might well prove an empty promise unless the private citizen were allowed to seek judicial enforcement of the prohibition.[Footnote 23] II. Another question involving the jurisdiction of the district courts is presented by 14 (b) of the Act. It provides that "[n]o court other than the District Court

[Page 393 U.S. 544, 558]

for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this Act . . . ." 79 Stat. 445, 42 U.S.C. 1973l (b) (1964 ed., Supp. I). The appellants sought declaratory judgments that the state enactments were subject to 5 of the Act; appellees thus argue that these actions could be initiated only in the District Court for the District of Columbia.

Section 14 (b) must be read with the Act's other enforcement provisions. Section 12 (f) provides that the district courts shall have jurisdiction over actions brought pursuant to 12 (d) to enjoin a person from acting when "there are reasonable grounds to believe that [such person] is about to engage in any act or practice prohibited by [ 5]."[Footnote 24] These 12 (f) injunctive actions are distinguishable from the actions mentioned in 14 (b). The 14 (b) injunctive action is one aimed at prohibiting enforcement of the provisions of the Voting Rights Act, and would involve an attack on the constitutionality of the Act itself. See Katzenbach v. Morgan, 384 U.S. 641 (1966). On the other hand, the 12 (f) action is aimed at prohibiting the enforcement of a state enactment that is for some reason violative of the Act. Cf. United States v. Ward, 352 F.2d 329 (C. A. 5th Cir. 1965); Perez v. Rhiddlehoover, 247 F. Supp. 65 (D.C. E. D. La. 1965).

[Page 393 U.S. 544, 560]

to maintain an action easily outside the district in which he resides, especially in cases where the individual litigant is attacking a local city or county regulation. Thus, for the individual litigant, the District of Columbia burden may be sufficient to preclude him from bringing suit.

We hold that the restriction of 14 (b) does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to the approval requirements of 5, and that these actions may be brought in the local district court pursuant to 28 U.S.C. 1343 (4). III. A final jurisdictional question remains. These actions were all heard before three-judge district courts. We have jurisdiction over an appeal brought directly from the three-judge court only if the three-judge court was properly convened. Pennsylvania Public Utility Comm'n v. Pennsylvania R. Co., 382 U.S. 281 (1965); Zemel v. Rusk, 381 U.S. 1, 5 (1965); see 28 U.S.C. 1253. Appellants initially claimed that the statutes and regulations in question violated the Fifteenth Amendment. However, by stipulation these claims were removed from the cases prior to a hearing in the District Court and the cases were submitted solely on the question of the applicability of 5.[Footnote 25] We held in Swift & Co. v. Wickham, 382 U.S. 111, 127 (1965), that a three-judge court is not required under 28 U.S.C. 2281 if the state statute is attacked on the grounds that it is in conflict with a federal statute and consequently violates the Supremacy Clause. These suits involve such an attack

[Page 393 U.S. 544, 561]

and, in the absence of a statute authorizing a three-judge court, would not be proper before a district court of three judges.

Appellants maintain that 5 authorizes a three-judge court in suits brought by private litigants to enforce the approval requirements of the section. The final sentence of 5 provides that "[a]ny action under this section shall be heard and determined by a court of three judges . . . and any appeal shall lie to the Supreme Court." 42 U.S.C. 1973c (1964 ed., Supp. I) (emphasis added). Appellees argue that this sentence refers only to the action specifically mentioned in the first sentence of 5 (i. e., declaratory judgment suits brought by the State) and does not apply to suits brought by the private litigant.

[Page 393 U.S. 544, 562]

direct appeal may be taken from a three-judge court to this Court, thus depriving us of the wise and often crucial adjudications of the courts of appeals. Thus we have been reluctant to extend the range of cases necessitating the convening of three-judge courts. Ibid.

However, we have not been unaware of the legitimate reasons that prompted Congress to enact three-judge-court legislation. See Swift & Co. v. Wickham, supra, at 116-119. Notwithstanding the problems for judicial administration, Congress has determined that three-judge courts are desirable in a number of circumstances involving confrontations between state and federal power or in circumstances involving a potential for substantial interference with government administration.[Footnote 26] The Voting Rights Act of 1965 is an example. Federal supervision over the enforcement of state legislation always poses difficult problems for our federal system. The problems are especially difficult when the enforcement of state enactments may be enjoined and state election procedures suspended because the State has failed to comply with a federal approval procedure.

[Page 393 U.S. 544, 564]

or party office and propositions for which votes are received in an election." 14 (c) (1), 79 Stat. 445, 42 U.S.C. 1973l (c) (1) (1964 ed., Supp. I). See Appendix, infra. Appellees in the Mississippi cases maintain that 5 covers only those state enactments which prescribe who may register to vote. While accepting that the Act is broad enough to insure that the votes of all citizens should be cast, appellees urge that 5 does not cover state rules relating to the qualification of candidates or to state decisions as to which offices shall be elective.

Appellees rely on the legislative history of the Act to support their view, citing the testimony of former Assistant Attorney General Burke Marshall before a subcommittee of the House Committee on the Judiciary:

"Mr. CORMAN. We have not talked at all about whether we have to be concerned with not only who can vote, but who can run for public office and that has been an issue in some areas in the South in 1964. Have you given any consideration to whether or not this bill ought to address itself to the qualifications for running for public office as well as the problem of registration?

"Mr. MARSHALL. The problem that the bill was aimed at was the problem of registration, Congressman. If there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to deal with in the bill."[Footnote 27]

[Page 393 U.S. 544, 565]

They contend that under such a broad reading of 5, enforcement of a reapportionment plan could be enjoined for failure to meet the 5 approval requirements, even though the plan had been approved by a federal court.[Footnote 28] Appellees urge that Congress could not have intended to force the States to submit a reapportionment plan to two different courts.[Footnote 29]

We must reject a narrow construction that appellees would give to 5. 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.[Footnote 30] Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation

[Page 393 U.S. 544, 566]

to the right to vote, recognizing that voting includes "all action necessary to make a vote effective." 79 Stat. 445, 42 U.S.C. 1973l (c) (1) (1964 ed., Supp. I). See Reynolds v. Sims, 377 U.S. 533, 555 (1964). We are convinced that in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the 5 approval requirements.

The legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way. For example, 2 of the Act, as originally drafted, included a prohibition against any "qualification or procedure." During the Senate hearings on the bill, Senator Fong expressed concern that the word "procedure" was not broad enough to cover various practices that might effectively be employed to deny citizens their right to vote. In response, the Attorney General said he had no objection to expanding the language of the section, as the word "procedure" "was intended to be all-inclusive of any kind of practice."[Footnote 31] Indicative of an intention

[Page 393 U.S. 544, 567]

to give the Act the broadest possible scope, Congress expanded the language in the final version of 2 to include any "voting qualifications or prerequisite to voting, or standard, practice, or procedure." 42 U.S.C. 1973 (1964 ed., Supp. I).

Similarly, in the House hearings, it was emphasized that 5 was to have a broad scope:

"Mr. KATZENBACH. The justification for [the approval requirements] is simply this: Our experience in the areas that would be covered by this bill has been such as to indicate frequently on the part of State legislatures a desire in a sense to outguess the courts of the United States or even to outguess the Congress of the United States. . . . [A]s the Chairman may recall . . . at the time of the initial school desegregation, . . . the legislature passed I

[Page 393 U.S. 544, 568]

don't know how many laws in the shortest period of time. Every time the judge issued a decree, the legislature . . . passed a law to frustrate that decree.

"If I recollect correctly, the school board was ordered to do something and the legislature immediately took away all authority of the school boards. They withdrew all funds from them to accomplish the purposes of the act." House Hearings 60.

Also, the remarks of both opponents and proponents during the debate over passage of the Act demonstrate that Congress was well aware of another admonition of the Attorney General.[Footnote 32] He had stated in the House hearings that two or three types of changes in state election law (such as changing from paper ballots to voting machines) could be specifically excluded from 5 without undermining the purpose of the section. He emphasized, however, that there were "precious few" changes that could be excluded "because there are an awful lot of things that could be started for purposes of evading the 15th amendment if there is the desire to do so." House Hearings 95. It is significant that Congress chose not to include even these minor exceptions in 5, thus indicating an intention that all changes, no matter how small, be subjected to 5 scrutiny.

[Page 393 U.S. 544, 569]

be conclusive.[Footnote 33] Also, the question of whether 5 might cause problems in the implementation of reapportionment legislation is not properly before us at this time. There is no direct conflict between our interpretation of this statute and the principles involved in the reapportionment cases. The argument that some administrative problem might arise in the future does not establish that Congress intended that 5 have a narrow scope; we leave to another case a consideration of any possible conflict.

[Page 393 U.S. 544, 572]

to take corrective action of such consequence, however. These 5 coverage questions involve complex issues of first impression - issues subject to rational disagreement. The state enactments were not so clearly subject to 5 that the appellees' failure to submit them for approval constituted deliberate defiance of the Act. Moreover, the discriminatory purpose or effect of these statutes, if any, has not been determined by any court. We give only prospective effect to our decision, bearing in mind that our judgment today does not end the matter so far as these States are concerned. They remain subject to the continuing strictures of 5 until they obtain from the United States District Court for the District of Columbia a declaratory judgment that for at least five years they have not used the "tests or devices" prohibited by 4. 42 U.S.C. 1973b (a) (1964 ed., Supp. I).

In No. 3 the judgment of the District Court is vacated; in Nos. 25, 26, and 36 the judgments of the District Court are reversed. All four cases are remanded to the District Courts with instructions to issue injunctions restraining the further enforcement of the enactments until such time as the States adequately demonstrate compliance with 5.

It is so ordered.

APPENDIX TO OPINION OF THE COURT.

Changes in the Mississippi statutes are indicated as follows: material added by amendment is italicized and material deleted by amendment is underscored. Portions of the statutes unchanged by amendment are printed in plain roman.

Section 5 of the Voting Rights Act of 1965:

"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4 (a) [42 U.S.C. 1973b (a)] are in effect shall enact or seek

[Page 393 U.S. 544, 580]

will make oath that he was a participant in the primary election, and that the person whose name is presented by him was nominated by such primary election. No person who has voted in a primary election shall thereafter have his name placed upon the ballot as an independent candidate for any office to be determined by the general election; any independent candidate must qualify on or before the time established by statute for qualification of candidates seeking nominations in primary elections. The commissioner shall also have printed on the ballot in any general or special election the name of any candidate who, not having been nominated by a political party, shall have been requested to be a candidate for any office as an independent candidate by a petition filed on or before the statutory time with said commissioner not less than forty (40) days prior to the election, and signed by not less than the following number of qualified electors:

"(a) For an office elected by the state at large, not less than one thousand (1,000) ten thousand (10,000) qualified electors.

"(b) For an office elected by the qualified electors of a supreme court district, not less than three hundred (300) three thousand five hundred (3,500) qualified electors.

"(c) For an office elected by the qualified electors of a congressional district, not less than two hundred (200) two thousand (2,000) qualified electors.

"(d) For an office elected by the qualified electors of a circuit or chancery court district, not less than one hundred (100) one thousand (1,000) qualified electors.

"(e) For an office elected by the qualified electors of a county, a senatorial district, or floatorial [sic] district, a supervisors district, or a municipality having a population of one thousand (1,000) or more, not less than ten per cent (10%) of the qualified electors of said county, senatorial district, supervisors district, or municipality,

[Page 393 U.S. 544, 581]

or not less than five hundred (500), fifty (50) qualified electors, whichever is the lesser.

"(f) For an office elected by the qualified electors of a supervisors district or a municipality having a population of less than one thousand (1,000), not less than fifteen (15) ten per cent (10%) of the qualified electors of said supervisors district or municipality.

"Each elector shall personally sign said petition which signature shall not be counted unless same includes his polling precinct and county.

"There shall be attached to each petition above provided for upon the time of filing with said commission, a certificate from the appropriate registrar or registrars showing the number of qualified electors appearing upon each such petition which the registrar shall furnish to the petitioner upon request.

"Unless the petition required above shall be filed not less than forty (40) days prior to the election, Unless the petition required above shall be filed not later than the time required for primary elections, the name of the person requested to be a candidate, unless nominated by a political party, shall not be placed upon the ballot. The ballot shall contain the names of each candidate for each office, and such names shall be listed under the name of the political party such candidate represents."

Section 24-252 of the Code of Virginia of 1950:

"Insertion of names on ballots. - At all elections except primary elections it shall be lawful for any voter to place on the official ballot the name of any person in his own handwriting thereon [sic] and to vote for such other person for any office for which he may desire to vote and mark the same by a check (û) or cross (X or +) mark or a line (__) immediately preceding the name inserted. Provided, however, that nothing contained in this section shall affect the operation of 24-251 of the Code of Virginia. No ballot, with a name or names placed

[Page 393 U.S. 544, 588]

B. While the Court's opinion does not confront the factors I have just canvassed, it does attempt to justify its holding on the basis of its understanding "of the legislative history and an analysis of the basic purposes of the Act." Ante, at 569. Turning first to consider the Act's basic purposes, the Court suggests that Congress intended to adopt the concept of voting articulated in Reynolds v. Sims, (1964), and protect Negroes against a dilution of their voting power. See ante, at 565-566, 569. It is clear, of course, that the Court's reapportionment decisions do not apply of their own force to the problem before us. This is a statute we are interpreting, not a broad constitutional provision whose contours must be defined by this Court. The States are required to submit certain kinds of legislation for federal approval only if Congress, acting within its powers, so provided. And the fact is that Congress consciously refused to base 5 of the Voting Rights Act on its powers under the Fourteenth Amendment, upon which the reapportionment cases are grounded. The Act's preamble states that it is intended "[t]o enforce the fifteenth amendment to the Constitution of the United States, and for other purposes." When Senator Fong of Hawaii suggested that the preamble include a citation to the Fourteenth Amendment as well, the Attorney General explained that he "would have quite a strong preference not to," because "I believe that S. 1564 as drafted can be squarely based on the 15th amendment." Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, p. 193. Attorney General Katzenbach's position was restated repeatedly,5 and any mention

[Page 393 U.S. 544, 594]

officials selected in violation of 5 to hold office until their four-year terms expire in 1971.13 An election for these offices may never be held in compliance with Congress' commands. And of course, the Court's decision respecting relief does not only control these particular cases. There may have been hundreds of officials throughout the South who began serving long terms in office this November under procedures that have not been federally approved. As a result of this part of the Court's decision, the Voting Rights Act may never play the full role that Congress intended for it.

It seems clear to me that we should issue a conditional injunction in the Mississippi cases along the lines suggested by the Solicitor General, except of course in the Fairley case which I think should be affirmed. Unless Mississippi promptly submits its laws to either the Attorney General or the District Court for the District of Columbia, new elections under the pre-existing law should be ordered. Of course, if the laws are promptly submitted for approval, a new election should be required only if the District Court determines that the statute in question is discriminatory either in its purpose or in its effect.

[Footnote 1] I concur in the Court's disposition of the complex jurisdictional issues these cases present. While I consider the question whether 5 authorizes a three-judge court a close one, it is clear to me

[Page 393 U.S. 544, 583]

that we would not avoid very many three-judge courts whatever we decide. I would suspect that generally a plaintiff attacking a state statute because it has not been federally approved under 5 could also make at least a substantial constitutional claim that the state statute is discriminatory in its purpose or effect. Consequently, in the usual case a three-judge court would always be convened under 28 U.S.C. 2281. Once convened, the Court would, of course, first consider the plaintiff's 5 argument in the name of avoiding a constitutional question. Therefore, it appears to me that there is no good reason to invoke the normal rule that three-judge court statutes should be construed as narrowly as possible. As the Court suggests, the more natural reading of the statute confers jurisdiction on three-judge courts even in an action brought by private parties.

[Footnote 2] Section 4 (c) reads:

"The phrase `test or device' shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class."

[Footnote 3] The Solicitor General expressly adopts this construction of the statute in his supplemental amicus brief. In any event, the Act is clear: 4 (a) permits a State to free itself from 4 by proving to a District Court in the District of Columbia that no "test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color." (Emphasis supplied.) As already noted, see n. 2, supra, the phrase "test or device" is a term of art including a class of statutes much narrower than those included under 5. However, since 5 applies by its own terms only to "a State or political subdivision with respect to which the prohibitions set forth in section 4 (a) are in effect," a State that escapes from 4, escapes from 5 as well, even though it has not complied with that section.

[Footnote 4] Indeed, I would have very substantial constitutional difficulties with the statute if I were to accept such a construction.

[Footnote 5] See, e. g., Senate Hearings, supra, at 35, 141; Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, p. 102.

[Footnote 6] When, in 10 of the Act, Congress moved against the imposition of poll taxes, it expressly invoked the Fourteenth Amendment as providing an additional basis for its action in this specific area. See 10 (b).

[Footnote 7] The Court seeks to strengthen its case by looking to the language of one of the definitional sections of the Act. Ante, at 565-566. Section 14 (c) (1) defines the term "vote" or "voting" to "include

[Page 393 U.S. 544, 590]

all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election." (Emphasis supplied.) All of the aspects of voting that are enumerated in this definition concern the procedures by which voters are processed. When the statute cautions that its enumeration of stages in the election process is not exclusive, it merely indicates that the change of any other procedure that prevents the voter from having his ballot finally counted is also included within the range of the Act's concern. Surely the Court is entirely ignoring the textual context when it seeks to read the italicized phrases as embracing all electoral laws that affect the amount of political power Negroes will derive from the exercise of the franchise, even when the way in which voters are processed remains unchanged.

[Footnote 8] The examples given by the Attorney General concerned changes in a State's voting age, residence, or property requirements; changes

[Page 393 U.S. 544, 591]

in the frequency that registrars' offices are open; and changes from paper ballots to machines or vice versa. See House Hearings, supra, n. 5, at 60-62, 95; Senate Hearings, supra, at 191-192, 237.

[Footnote 9] The Court emphasizes three specific colloquies in which Mr. Katzenbach participated to support its understanding of the legislative history. In the most important one, see ante, at 566-567, n. 31, Senator Fong expressed concern that 5, which at that time merely required federal review of changes in state "procedures," would not encompass a state regulation which would radically limit the hours during which new voters could register. The Attorney General agreed that the statute should be elaborated to more clearly include such a change. Since such a law alters the manner in which voters are processed, I fail to see how this colloquy undermines my construction of the section - which clearly requires federal review in cases of the sort Mr. Katzenbach and Senator Fong were discussing. Similarly, a second extract highlighted by the Court, ante, at 567-568, is one in which the Attorney General emphasizes that 5 is intended to prevent the States from evading the requirements of 4 - a point I believe to count strongly in favor of the interpretation I deem the correct one. Finally, it is quite true that the Attorney General opposed carving out exceptions from 5 that would permit the State to switch from paper ballots to voting machines without federal approval. See ante, at 568. But this fact hardly indicates that he or anyone else was of the opinion that the section required review of statutes that did not concern themselves with voting procedures. In fact, on the one occasion that Mr. Katzenbach discussed the reapportionment cases in connection with 5, he indicated no awareness whatever that 5 could be construed to apply to cases involving laws that change the voting power of various groups. See House Hearings, supra, at 93-94.

[Footnote 10] The statute requires supporters of a candidate to write their own names on the nominating petition, together with their polling district. Moreover, petitions must be filed by an earlier date and must contain many more signatures. The Act also imposes a "voting qualification" on those who wish to vote in a party primary, by providing that they may not subsequently compete with the primary victor by running as an independent candidate.

[Footnote 11] In the Allen case, coming from Virginia, the term of the Congressman who gained his seat under procedures that have not been approved under 5 has already expired. Consequently, only a grant of declaratory relief is appropriate in this case, as the appellants themselves recognize.

[Footnote 12] Since the Voting Rights Act became effective in Mississippi in August 1965, the State will be able to escape the requirements of 5 in 1970 by proving that it has not imposed a "test or device" in violation of 4 for a five-year period. See text, at n. 3, supra. Section 5 will only continue to apply after 1970 if Mississippi is found to have continued imposing "tests or devices" after 1965. The Court's decision today, however, does not consider whether any of the statutes involved in these cases impose a "test" or "device" within the meaning of 4, see n. 2, supra. It simply holds that the statutes fall into the much broader class of laws that modify a "standard, practice, or procedure with respect to voting" under 5.

[Footnote 13] The state senator, state representative, county supervisor, justice of the peace, and constable involved in Whitley v. Williams, No. 36, were all elected for four-year terms ending in 1971. See Mississippi Code 3238 (1942). Similarly, the affected county superintendents of education in Bunton v. Patterson, No. 26, were appointed to four-year terms, expiring in 1971.

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if they had dreamed that the time might come when they would have to go to a United States Attorney General or a District of Columbia court with hat in hand begging for permission to change their laws. Still less would any of these Colonies have been willing to agree to a Constitution that gave the Federal Government power to force one Colony to go through such an onerous procedure while all the other former Colonies, now supposedly its sister States, were allowed to retain their full sovereignty. While Marbury v. Madison, 1 Cranch 137 (1803), held that courts can pass on the constitutionality of state laws already enacted, it certainly did not decide to permit federal courts or federal executive officers to hold up the passage of state laws until federal courts or federal agencies in Washington could pass on them. Proposals to give judges a part in enacting or vetoing legislation before it passed were made and rejected in the Constitutional Convention; another proposal was made and rejected to permit the Chief Justice of this Court "from time to time [to] recommend such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union . . . ." See my dissenting opinion in Griswold v. Connecticut, 381 U.S. 479, 515, n. 6 (1965).

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