John Roy Harper, Ii, et al. v. Edward H. Levi, Attorney General of the United States, Etal., Appellants (two Cases), 520 F.2d 53 (D.C. Cir. 1975)

This case presents issues, never before tendered to this court, concerning executive enforcement of Section 5 of the Voting Rights Act of 1965.¹  Appellees²  filed a class action in the District Court seeking review, pursuant to Section 10 of the Administrative Procedure Act,³  of a decision by the then Attorney General to forego objection under Section 5 to a proposed reapportionment of the South Carolina Senate. The Attorney General had independently concluded that the reapportionment was proscribed by Section 5, but nevertheless had "deferred" to the countervailing decision of a federal district court in South Carolina⁴  and had declined to lodge an objection. In the action germinating this appeal, the District Court held that the Attorney General had not fulfilled his statutory obligation and ordered him to reconsider without regard to the prior court decision.⁵  The Attorney General subsequently interposed an objection to the reapportionment, thereby preventings its effectuation.⁶ 

Appellants⁷  argue that the District Court was without jurisdiction,⁸  that the Attorney General's determinations under Section 5 are not reviewable,⁹  and that an objection was precluded in this instance by the antecedent judicial decision.¹⁰  We find none of these contentions persuasive. For reasons articulated in the discussion that follows, we affirm the District Court's action.

States and political subdivisions embraced by Section 4 of the Voting Rights Act¹¹  are forbidden by Section 5 from instituting any change in voting qualifications or procedures without first obtaining a judgment in the District Court for the District of Columbia declaring 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."¹²  Alternatively, however, Section 5 authorizes submission of the proposed change to the Attorney General,¹³  and if he does not object within 60 days the change may be effected.¹⁴  The Attorney General has construed Section 5, in regulations that have been upheld by the Supreme Court,¹⁵  to require him to consider the submission by the same criteria that govern adjudication of a request for a declaratory judgment.¹⁶  South Carolina has been intercepted by Section 4,¹⁷  and the parties agree that the prohibitions of Section 5 are applicable to the electoral changes involved in this case.¹⁸ 

On November 11, 1971, the General Assembly of South Carolina passed Act 932, which adopted alternative reapportionment plans for the state's Senate.¹⁹  Both plans provided for multi-member districts,²⁰  required candidates to run for numbered posts,²¹  and imposed the requirement that primary elections be decided by majority vote. Several suits were filed in the District Court for the District of South Carolina²²  to enjoin the operation of Act 932 on the grounds that it violated the Voting Rights Act and, as well, the Fourteenth and Fifteenth Amendments. The cases were consolidated, and a three-judge court was convened to hear the challenges they presented.

While these actions were pending, South Carolina, on November 22, 1971, submitted Act 932 to the Attorney General for Section 5 approval. On March 6, 1972, the Attorney General interposed an objection to the changes it contemplated. He stated that on the basis of recent federal court decisions²³  he was "unable to conclude, with respect to (Act 932), that the combination of multi-member districts, numbered posts, and a majority (run-off) requirement would not occasion an abridgement of minority voting rights in South Carolina."²⁴ 

About a month later, in Twiggs v. West,²⁵  the District Court for the District of South Carolina rejected the Fifteenth Amendment claim against Act 932, but held that the legislation unconstitutionally infringed Fourteenth Amendment rights because of impermissible population variances and invalid residency provisions.²⁶  The court refused to consider challenges based on the Voting Rights Act, recognizing that the District of Columbia was "the proper forum" for litigating them.²⁷  The court declined to draw its own reapportionment plan and indulged the General Assembly 30 days to enact an acceptable substitute.²⁸ 

In response, on May 6, the General Assembly passed Act 1205 the legislation involved in this action which, like its forerunner, provided alternative schemes for reapportioning the Senate. Act 1205 modified the prior residency feature and reduced the population variances,²⁹  but maintained the provisions for multi-member districts, numbered posts, and majority vote in primaries.³⁰  Act 1205 also included a provision extending the numbered post requirement to existing multi-member districts of the House of Representatives, the other chamber of the South Carolina General Assembly.³¹  South Carolina submitted Act 1205 to the Attorney General on May 12, and eleven days later the Twiggs court held that the new Senate reapportionment comported with constitutional requirements.³² 

On May 30, while the Attorney General was considering Act 1205, South Carolina submitted additional legislation, Act 1204, to the Attorney General.³³  Act 1204 extended the numbered post requirement beyond the Senate to all multi-member elective districts in South Carolina. On June 16, 1972, in accordance with established procedure,³⁴  the Attorney General requested additional information regarding Act 1204. On June 19, he notified South Carolina that the information had been received, that the submission was complete, and that the 60-day period for review began to run on that date.³⁵ 

On June 30, the Attorney General interposed an objection to Act 1204 and to the part of Act 1205 specifying numbered posts in the state House of Representatives.³⁶  The Attorney General declined to object, however, to the provisions of Act 1205 applicable to the Senate. His notification in that regard stated that he had independently concluded that Act 1205 had a racially discriminatory effect in contravention of Section 5, but that he felt "constrained to defer the . . . determination of the three-judge District Court" in Twiggs.³⁷  "It would in our view not be appropriate," he said, "to read the Voting Rights Act as requiring or permitting the Attorney General to review a determination made by a United States District Court in the proper exercise of its statutory jurisdiction."³⁸ 

On August 10, 1972, appellees filed the present litigation in the District Court for the District of Columbia challenging the Attorney General's failure to object to the Senate reapportionment contained in Act 1205. The District Court granted appellees' motion for summary judgment³⁹  on May 16, 1973, and ordered the Attorney General to make "a reasoned decision in accordance with his statutory responsibility."⁴⁰  In response to the order, the Attorney General filed a memorandum setting forth his position. "Act No. 1205," he declared, "has a clear and substantial racial effect in contravention of the Fifteenth Amendment and its protections under Section 5 of the Voting Rights Act."⁴¹  "Indeed," he continued, "the reasons for finding a contravention of the Fifteenth Amendment in (Act 932) . . . are also present upon reviewing (Act 1205)."⁴²  Nevertheless, on the ground that he was constrained to bow to the Twiggs decision, the Attorney General reaffirmed his refusal to object.

On July 19, the District Court issued a second order, noting that appellants had "represented in open court that if the Attorney General considered Act 1205 without regard to the decision of the Three Judge District Court . . ., he would enter an objection to such act."⁴³  The court directed the Attorney General to "consider Act 1205 without regard to the decision of the Three Judge District Court."⁴⁴  On July 20, 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."⁴⁵ 

In this court, appellants contend that the District Court erred in entering these two orders.⁴⁶  We hold that the court had jurisdiction of appellees' action,⁴⁷  that the Attorney General's decision not to object was reviewable under the circumstances of this case,⁴⁸  and that Section 5 requires him to make an independent determination on the merits of the Section 5 issues.⁴⁹ 

We first address appellants' contention that the District Court was without jurisdiction to issue the challenged orders. Two grounds for this position are advanced. One is that the action was not timely.⁵⁰  The other is that the action could be heard and determined only by a three-judge court.⁵¹  We find neither of these arguments acceptable.

Act 1205 was submitted for the Attorney General's approval on May 12, 1972. Appellants contend that by the terms of Section 5 the Attorney General had to act upon the submission within 60 days of that date,⁵²  with the result that his refusal to object became "final" on July 11. On this premise they further contend that appellees' complaint in the District Court, filed on August 10, was not timely. Appellees respond that the 60-day period did not begin to run until South Carolina's submission was deemed complete on June 19,⁵³  and that in any event the District Court's jurisdiction did not depend upon the filing of suit within the period limiting action by the Attorney General.

We find it unnecessary to decide when the 60-day period specified by Section 5 began to run in this case. On its face, the specification is directed solely to the Attorney General's disapproval of proposals submitted pursuant to Section 5. Nothing in the text nor in the legislative history of that section suggests that this language has a longer reach. Without manifest distortion of the provision it is impossible to say that, simply because the Attorney General must act within 60 days after submission, a litigant opposing the Attorney General must do likewise. Aside from these considerations, the logical extension of appellants' argument is that judicial review of agency action must invariably be sought during the period within which the agency itself must act. Such an unprecedented holding would signal a deterioration in the wholesome process by which administrative agencies are subjected to a measure of judicial oversight. Courts are empowered to rectify agency action erroneously taken or to compel agency action erroneously withheld,⁵⁴  and continuing agency authority to act independently is not a jurisdictional prerequisite to such relief.⁵⁵  Fairly recently, in a case in which a petition for review of agency action was filed after the time for initial agency action had expired, we saw no jurisdictional problem and remanded the case for further agency proceedings.⁵⁶  Moreover, the Administrative Procedure Act authorizes judicial review after petitions for reconsideration are presented to the agency⁵⁷  petitions that obviously can be disposed of after the time for initial agency action has expired. In the countless situations of that sort, appellants' thesis would foreclose judicial review merely because a party avails himself of his fullest opportunity to seek relief within the agency before invoking his remedies in court.

An equally basic difficulty with appellants' theory is that judicial review would be a practical impossibility were the Attorney General to delay his action until the last day upon which he could act.⁵⁸  Since only "final" agency action is subject to judicial scrutiny,⁵⁹  the review process cannot be instituted until after the Attorney General has acted,⁶⁰  and the Attorney General would in effect acquire the power to make unreviewable decisions under Section 5. It is clear enough that the Voting Rights Act did not grant the Attorney General unfettered discretion in the performance of his duties under Section 5.⁶¹ 

In sum appellants are asking us to fabricate a principle of administrative law that would warp Section 5, would conflict with precedent, and would grant the Attorney General, and as well all other administrators, decisional leeway that would not and should not otherwise exist. We hold that the 60-day limitation specified in Section 5 is applicable only to action by the Attorney General prior to judicial review, and that it did not render appellees' lawsuit untimely.

Because the last sentence of Section 5 specifies that "(a)ny action under this section shall be heard and determined by a court of three judges,"⁶²  appellants urge, on this appeal for the first time,⁶³  that a single judge was without jurisdiction to pass on appellees' claims. Relying principally on the statutory language and a Supreme Court precedent, Allen v. State Board of Elections,⁶⁴  appellants argue that one judge, acting alone, was barred from deciding the issue tendered by appellees' lawsuit. For reasons that follow, we disagree.

In Allen, the Court addressed the applicability of Section 5's three-judge mandate to suits contesting new election laws allegedly covered by, but not cleared under, the provisions of Section 5.⁶⁵  The Court noted that such suits comprised one of three types that "may be viewed as being brought 'under' § 5,"⁶⁶  and then proceeded to consider whether their presentation to three-judge courts was proper.⁶⁷  Recognizing that Section 5's three-judge language did not unequivocally answer the question, the Court turned to indicia of congressional intent.⁶⁸  "Congress has determined," the Court said, "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."⁶⁹  The problems for the federal judiciary "are especially difficult," the Court continued, "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."⁷⁰  "In drafting § 5," the Court declared, "Congress apparently concluded that if the governing authorities of a State differ with the Attorney General of the United States concerning the purpose or effect of a change in voting procedures, it is inappropriate to have that difference resolved by a single district judge."⁷¹  The Court "conclude(d) that in light of the extraordinary nature of the Act in general, and the especially unique approval requirements of § 5, Congress intended that disputes involving the coverage of § 5 be determined by a district court of three judges."⁷² 

It is immediately apparent, however, that the case at bar differs from Allen in a number of important respects. In Allen, the plaintiffs founded their suit on Section 5's provision that "no person shall be denied the right to vote for failure to comply with" a new election law covered by but unapproved conformably with that section.⁷³  The Allen plaintiffs sought to enforce that provision by enjoining effectuation of new election laws pending their approval pursuant to Section 5.⁷⁴  That undertaking unavoidably necessitated a decision on coverage of the challenged laws, and portended disruption of state processes designed for its administration.⁷⁵ 

The litigation before us, on the other hand, is predicated on statutory provisions generally authorizing federal courts to review agency action and to compel agency action wrongfully withheld.⁷⁶  Its only purpose is to secure performance by a federal officer of a duty allegedly imposed by federal law. That duty assertedly is to make an independent determination as to whether the legislation South Carolina submitted survives the test of Section 5, and to object or decline to object accordingly. No injunction against enforcement of the laws is sought, nor is any interference with their operation contemplated beyond what would follow, by force of Section 5, a validly interposed objection.⁷⁷ 

We realize, of course, that any determination by the Attorney General, in response to a single-judge order demanding an independent resolution, will affect the submitting state for better or for worse, according to the determination that the Attorney General actually makes. But we cannot equate such a determination to a single-judge decision on the merits of the Section 5 issues posed by a submission. Although Section 5 denies a single judge power to pass on those issues, it confers that very authority upon the Attorney General,⁷⁸  and we discern no impingement upon the policies underlying Section 5's three-judge requirement when the Attorney General exercises that authority pursuant to a single judge's order. The crucial consideration is that, though decision-making is dictated, the decision itself is not the Attorney General, though compelled to decide, is left completely unfettered as to how to decide. Under those conditions, the Section 5 determination is the Attorney General's, not the judge's, and if the judge's order is valid it is a determination that the Attorney General should have made in the first place.⁷⁹ 

With the case thus analyzed and the pivotal factors thus isolated, the course we must take is clear. The Supreme Court has frequently cautioned that statutory provisions summoning three-judge federal district courts are to be strictly construed.⁸⁰  This canon is to be observed, as scrupulously as elsewhere, with respect to calls of that nature in the Voting Rights Act.⁸¹  Obediently to these principles, we must decline to apply the three-judge mandate of Section 5, not only to situations for which it clearly was not intended, but also to those only doubtfully within its reach.⁸² 

In the instant case, the District Court merely directed the Attorney General to formulate his own independent decision on the merits of South Carolina's Section 5 submission. Such activity by the Attorney General could not impermissibly draw the court into a dispute as to Section 5's coverage of the state's legislative changes,⁸³  or as to the operability of those changes under Section 5.⁸⁴  To the extent that the Attorney General's activity might "involv(e) confrontations between state and federal power"⁸⁵  or generate "a potential for substantial interference with government administration,"⁸⁶  those consequences could be no greater than any instance in which the Attorney General on a state's request executes the function assigned by Section 5. In sum, the policies underlying Section 5's three-judge requirement seem completely foreign to the District Court's role in the situation at bar.⁸⁷  At the very best, any attempted reconciliation in this case of the three-judge provision and the congressional policy it represents is an exceedingly dubious venture.

We hold, then, that a single-judge District Court properly resolved this case. Our holding, of course, does not foreclose eventual litigation on the merits of the Section 5 issues before a court of three judges. Should South Carolina wish to challenge the objection that the Attorney General has registered, a declaratory judgment action before a properly convened three-judge District Court for the District of Columbia is still available.⁸⁸ 

Appellants next contend that the Attorney General's activities under Section 5, even when legally erroneous, are immune from judicial review. Appellants recognize, as they must, that final agency action is reviewable "except to the extent that . . . (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."⁸⁹  They argue, however, that Congress intended to ban review by the courts of any action the Attorney General takes under Section 5. They also argue that Section 5 action is committed to the Attorney General's discretion by law. We are not persuaded on either score.

Surely nothing in Section 5, or elsewhere in the Voting Rights Act, expressly forbids judicial review of performances rendered by the Attorney General under Section 5. We have not been referred to, nor have we found, any such prohibition in any other federal statute. Similarly, the legislative history of the Act is silent as to any congressional purpose to exempt the Attorney General's activities under Section 5 from customary judicial review.

Appellants endeavor, however, to support their position on statutory preclusion by reference to the structure of Section 5's approval machinery. In lieu of a declaratory judgment action in the District Court for the District of Columbia, a state or political subdivision may submit proposed election law changes to the Attorney General for preclearance.⁹⁰  From that grant of this alternative and the statutory limit of 60 days for the Attorney General's response to the submission,⁹¹  appellants assert that Congress has manifested a desire to avoid any delay incidental to proceedings in court, and that an intention to interdict judicial review of the Attorney General's action must accordingly be inferred.

We believe this argument asks for too much. The structural features of Section 5 upon which appellants rely were end products of a congressional purpose entirely unrelated to delay necessitated by judicial review. The bill eventuating as the Voting Rights Act did not originally provide for a submission to the Attorney General as an alternative to a declaratory judgment action.⁹²  During hearings before the Senate Judiciary Committee, in response to questions about the burdens of such actions, Attorney General Katzenbach noted that many election law changes within the purview of Section 5 would be noncontroversial and nondiscriminatory.⁹³  On that basis, he suggested review by the Attorney General as an optional route to Section 5 approval, a technique calculated to serve adequately in a large number of instances.⁹⁴  Congress apparently accepted the suggestion, for in Section 5 it extended the option as the means to avoidance in many cases of a full-fledged lawsuit otherwise necessary.⁹⁵  Election law changes demonstrably free from discriminatory purpose and effect thus could be precleared through the Attorney General, while others would remain unenforceable unless and until subsequently approved in declaratory judgment proceedings as authorized by Section 5.

We cannot extrapolate from this morsel of legislative history a purpose to foreclose judicial review of the Attorney General's activities pursuant to Section 5. For all that his review of a large volume of submissions expectably could accomplish, Congress still assigned the judiciary a large and important role in the resolution of Section 5 questions. A state or political subdivision may forego the simpler and speedier mechanism of review by the Attorney General and avail itself of the opportunity of full-scale litigation of its position in a declaratory judgment action in the District Court for the District of Columbia.⁹⁶  It may resort to the declaratory judgment action even after incurring the Attorney General's disapproval following a submission to him.⁹⁷  In either case, the court's decision may be subjected to review and possible revision in the Supreme Court.⁹⁸ 

So, while "(t)he provision (of Section 5) for submission to the Attorney General . . . gives the covered State a rapid method of rendering a new state election law enforceable,"⁹⁹  it does not follow that Congress was unwilling to indulge delay incidental to judicial examination of criteria leading the Attorney General in particular cases to decide not to object to a change covered by Section 5. Many innocuous changes submitted to the Attorney General may achieve expeditious preclearance at the Attorney General's hand, without resulting controversy over his decision. That goal is not embarrassed by the fact that other changes, germinating difficult questions under Section 5, may necessitate additional scrutiny.

Section 5 envisions situations of each type, and erects procedures to accommodate them both.¹⁰⁰  The Attorney General's implementing regulations likewise tolerate delay in complex cases by specifying that the 60-day period for considering the submission does not commence until receipt of any additional information the Attorney General may request.¹⁰¹  Moreover, delay consequent to judicial correction of legal error in the disposition of a submission does not impede the overall operation of Section 5. On the contrary, judicial clarification of its requirements is a step well calculated to enhance its effective application.¹⁰² 

Perhaps singularly, appellants offer no response to the suggestion that Congress would have explicitly foreclosed judicial review if that is what it desired to do.¹⁰³  Indeed, Section 4(b) of the Act expressly precludes judicial review of administrative determinations that a state or political subdivision is subject to the provisions of that section.¹⁰⁴  Thus in at least the one instance where we know Congress intended to bar judicial review, it legislated precisely to that effect. On the other hand, we reiterate, Congress has nowhere indicated a prohibition of judicial review of the Attorney General's actions under Section 5.¹⁰⁵ 

The Voting Rights Act "implemented Congress' firm intention to rid the country of racial discrimination in voting."¹⁰⁶  It was "drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens."¹⁰⁷  "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."¹⁰⁸  We have seen that Congress conferred upon the states and their political subdivisions the full protection of the judicial process in their efforts to clear new election law changes for operation. We cannot assume that a legislature bent on concretizing the right to vote intended a lesser solicitude towards those whom the Act was designed to benefit. Voters affected by changes covered by Section 5 can insist on judicial relief from enforcement of those changes until they are approved pursuant to Section 5.¹⁰⁹  They may also voice their positions in declaratory judgment actions under Section 5 by the simple expedient of intervening in those proceedings.¹¹⁰  Unless, however, they may obtain judicial review of the Attorney General's methodology on Section 5 submission, the bond of protection is incomplete. Should the Attorney General decide not to object, the proposed change goes into operation immediately,¹¹¹  without any opportunity for judicial consideration of voter positions on the Section 5 questions. True it is, as appellants say, that in the latter event voters can resort to traditional suits grounded on the Fifteenth Amendment. "But," as the Supreme Court has observed, "it was the inadequacy of just these suits for securing the right to vote that prompted Congress to pass the Voting Rights Act."¹¹² 

Statutory preclusion of judicial review of administrative action, whenever it occurs, is a consequence of plain legislative intent. The Supreme Court has declared 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"¹¹³  and that "only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review."¹¹⁴  No such showing has been made in this case. Neither the text nor the legislative history of the Voting Rights Act reflects a congressional purpose to proscribe judicial review of the Attorney General's activities under Section 5. There is no suggestion that any other federal legislation does so. We note that appellees are not challenging findings by the Attorney General on issues of fact, or an ultimate decision as to whether the submitting authority has discharged its burden of proving lack of discriminatory purpose or effect.¹¹⁵  Rather, appellees contend simply, and the District Court held only, that the Attorney General improperly relinquished his responsibility to independently evaluate the submitted legislation in light of the standards established by Section 5.¹¹⁶  We find no basis for holding that judicial review in these circumstances is statutorily precluded.¹¹⁷ 

Appellants also contend that even if normal judicial review is not precluded in this case by reason of congressional intent, it is foreclosed because Section 5 action by the Attorney General is "committed to agency discretion by law."¹¹⁸  We find that position untenable. The statutory exemption of that sort of action from judicial review is "a very narrow exception,"¹¹⁹  one which is "applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' "¹²⁰  That certainly is not the situation here.

To be sure, Section 5 does not expressly define the standards or procedures that the Attorney General is to utilize in discharging his responsibilities toward state submissions. But the Attorney General has promulgated regulations prescribing standards, as well as procedures, by which election law changes submitted to him for approval can be objectively and accurately evaluated.¹²¹  One such regulation declares that "Section 5, in providing for submission to the Attorney General as an alternative to seeking a declaratory judgment from the U.S. District Court for the District of Columbia, imposes on the Attorney General what is essentially a judicial function."¹²²  For this reason, the regulation states, "the burden of proof on the submitting authority is the same in submitting changes to the Attorney General as it would be in submitting changes to the District Court for the District of Columbia."¹²³  "If," the regulation further provides, "the Attorney General is satisfied that the submitted change does not have a racially discriminatory purpose or effect, he will not object to the change and will so notify the submitting authority. If the Attorney General determines that the submitted change has a racially discriminatory purpose or effect, he will enter an objection and will so notify the submitting authority."¹²⁴  And "(i)f the evidence as to the purpose or effect of the change is conflicting, and the Attorney General is unable to resolve the conflict within the 60-day period, he shall, consistent with the above-described burden of proof applicable in the District Court, enter an objection and so notify the submitting authority."¹²⁵ 

These provisions leave no room for argument that the Attorney General's Section 5 function is "committed to agency discretion"¹²⁶  because "there is no law to apply."¹²⁷  They establish the rule¹²⁸  that the Attorney General must pass on a Section 5 submission by application of the same standard whether it has discriminatory purpose or effect¹²⁹  prescribed by Section 5 for declaratory judgment actions brought under its aegis.¹³⁰  Thus the determination the Attorney General makes on Section 5 submissions is an adjudication in the traditional sense the application of legal principles to a specific factual situation. In no sense barring judicial review is the function discretionary.

It is evident, then, that the Attorney General himself interprets Section 5 as the imposition of a nondiscretionary function on his office. As he himself characterizes his activity under Section 5, he performs "what is essentially a judicial function."¹³¹  And as the Supreme Court has noted, the Attorney General has not read Section 5 as a grant of "unfettered discretion as to procedures, standards, and administration in this sensitive area,"¹³²  but as a call "to formulate and publish objective ground rules."¹³³  The Court has sustained the validity of the Attorney General's adoption of the same substantive and burden-of-proof¹³⁴  standards that Section 5 sets for declaratory judgment actions,¹³⁵  and the Attorney General's regulation binds him¹³⁶  to those standards in Section 5 determinations.¹³⁷  The net result is that the Attorney General is obliged to adjudicate Section 5 submissions in the same manner the court adjudicates declaratory judgment actions. No less in the one instance than in the other is the function nondiscretionary, and reviewable in a proper judicial forum.

Appellants contend lastly that the Attorney General properly performed his Section 5 duty in this case by concluding that he should defer to the holding in Twiggs v. West¹³⁸  that Act 1205 does not violate the Fifteenth Amendment. Appellants assert, on the premise that the substantive standards set by Section 5 and the Fifteenth Amendment are identical, that interposition of an objection would be tantamount to the overruling of a final judicial decision.¹³⁹  They also assert that a Supreme Court decision precludes an objection in the situation here.¹⁴⁰  We discuss these contentions and also conclude that appellants' position is fundamentally inconsistent with clearly expressed congressional intent underlying Section 5.¹⁴¹ 

An important difference between Fifteenth Amendment and Section 5 litigations over alleged voting discrimination is the allocation of the burden of proof. A plaintiff who challenges a state law on Fifteenth Amendment grounds must carry the burden of demonstrating that the law is unconstitutional.¹⁴²  Accordingly, the Twiggs court rejected the Fifteenth Amendment claim against Act 1205 for the stated reason that evidence indicating its unconstitutionality was lacking.¹⁴³  In contrast, the burden of proof in Section 5 proceedings is on the state or political subdivision seeking approval of a voting change.¹⁴⁴  The Twiggs court did not conclude indeed the question was not presented¹⁴⁵  that South Carolina could have carried the burden of proof imposed by Section 5.

Appellants encounter a further problem in connection with their contention that the Fifteenth Amendment proscribes voting procedures that are racially discriminatory either in purpose or effect.¹⁴⁶  That clearly is the standard constructed by Section 5,¹⁴⁷  but the case law in its current state leaves uncertain whether a Fifteenth Amendment challenge based solely on a racially discriminatory effect, as distinguished from purpose, can be successfully maintained. Supreme Court decisions invalidating voting practices as violative of the Fifteenth Amendment have uniformly relied upon evidence of racially discriminatory motivation.¹⁴⁸  Numerous other cases have regarded determinations of purpose and effect as involving distinct questions.¹⁴⁹  We need not enter the debate for the important consideration is not our thought on the question but the view of the Twiggs court when it rendered its Fifteenth Amendment decision. The point we make is that an objection by the Attorney General under Section 5 is not necessarily in conflict with a prior judicial determination on constitutionality.

The opinion rendered by the Twiggs court does not reflect any consideration, for the purpose of Fifteenth Amendment claims, of the possible discriminatory effect of Act 1205. The holding was based on the absence of "evidence that . . . South Carolina has ever been motived by racial considerations."¹⁵⁰  In contrast, the Attorney General's independent assessment of Act 1205 was based on his view of the effect of the legislation.¹⁵¹  We are constrained to conclude that his objection to Act 1205 cannot be regarded as "overruling" the Twiggs decision, and that there was no judicial decision on the "effect" aspect of the Section 5 issues to which the Attorney General could in any event defer in this case.¹⁵² 

The result we reach today is consistent with the position taken by the Department of Justice in other litigation. In City of Richmond v. United States,¹⁵³  the Department filed a memorandum¹⁵⁴  distinguishing a Fourth Circuit decision under the Fifteenth Amendment from administrative proceedings under Section 5.¹⁵⁵  The reason asserted for the distinction was the difference in burden of proof.¹⁵⁶  The Department did not take the position that the constitutional and statutory standards were identical,¹⁵⁷  but instead asserted that the Fourth Circuit decision was not binding on the Attorney General regardless of the similarity of standards. Significantly, the concluding paragraph of the Fourth Circuit's opinion¹⁵⁸  stated that the decision "reflects no opinion as to the appropriateness or inappropriateness of the Attorney General's objection."¹⁵⁹ 

Appellants' final argument is that the Supreme Court's decision in Connor v. Johnson¹⁶⁰  bars the Attorney General from interposing an objection in this case. Appellants say that the "lesson" of Connor is that the protections afforded by Section 5 are sufficiently honored by judicial consideration of a Fifteenth Amendment challenge, and that therefore the Attorney General should not object to election law changes approved by a federal court. In this way, as their argument goes, both the federal courts and the Attorney General may fully meet their responsibilities without invading the jurisdiction of the other, and while still effectuating the Voting Rights Act.

The Court held in Connor that a reapportionment plan formulated by a federal court,¹⁶¹  rather than a legislative body, is not within the scope of Section 5.¹⁶²  Section 5 plainly applies only to suffrage changes proposed by "a State or political subdivision,"¹⁶³  so the Court held that "(a) decree of the United States District Court is not within the reach of Section 5."¹⁶⁴  But Connor provides no support for the Attorney General's complete deference in the instant case to a judicial decision on issues distinguishable from those presented under Section 5.¹⁶⁵  Appellants are saying in effect that constitutional approval of an election law change by a federal court, if rendered with sufficient speed, could obviate the need for Section 5 approval. In light of the congressional determination that available constitutional remedies are inadequate, and that thus enactment of Section 5 was necessitated,¹⁶⁶  we cannot place the stamp of approval on that result.

Finally, undeviating deference by the Attorney General conflicts directly with the congressional objective in vesting exclusive jurisdiction of actions under Section 5 in the District Court for the District of Columbia.¹⁶⁷  Congress intended that the Section 5 standard be applied uniformly to covered states, and to accomplish this end directed that all litigation under Section 5 take place in the District of Columbia.¹⁶⁸  To the extent that the Attorney General accords conclusive weight to local court determinations, the congressional goal of decisional uniformity may be frustrated.

Appellants profess concern that the interposition of an objection, where a court has previously declared an election law change to be consistent with the Fifteenth Amendment, might destroy the present "cooperation" between judicial and administrative authorities in administering Section 5. We need only respond that this view is simply not a realistic assessment of the Attorney General's Section 5 responsibility, nor is it likely to be an accurate prediction of the judicial attitude in such circumstances.¹⁶⁹  Because constitutional challenges and Section 5 proceedings do not necessarily present the same issues, an objection to a provision previously held constitutional is not inexorably a contradiction of the prior judicial resolution.

For the reasons stated, the orders appealed from are in all respects

Affirmed.

MacKINNON, Circuit Judge (dissenting):

I am in agreement with the conclusion that a three-judge court would not be required by section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1970), in an action for review under the Administrative Procedure Act of the procedures followed by the Attorney General in withholding objection to statutes submitted under section 5. I also agree that the Attorney General was not obliged to defer to the prior decision by the three-judge district court in South Carolina but could instead make an independent assessment of the discriminatory effect of Act 1205. However, these issues are irrelevant unless it is first determined that the Attorney General's decision to withhold objection to legislation submitted under section 5 is subject to judicial review.

Section 5 provides that a statute affecting voting rights may be enforced if it has been submitted to the Attorney General and the Attorney General "has not interposed an objection within sixty days after such submission . . . ." To my mind, this language authorizes approval by inaction. Surely no one would contend that if the Attorney General took no action whatsoever, as is clearly authorized by the statute, that inaction could be subject to judicial review under the APA. It is hard to imagine a clearer instance of a matter "committed to agency discretion by law." 5 U.S.C. § 701(a) (2) (1970). I doubt that any greater power of judicial review exists simply because the Attorney General has chosen to give a reason, albeit an erroneous one, for his refusal to interpose an objection. The fact that he has adopted regulations requiring him to act affirmatively or negatively on each submission using set standards should not operate to confer additional powers of judicial review beyond what is indicated in the language of section 5.

Section 5 itself designates the proper method of obtaining judicial review in this case by providing that "the Attorney General's failure to object . . . shall (not) bar a subsequent action to enjoin enforcement of any such qualification, prerequisite, standard, practice, or procedure." I recognize the majority's concern that the so-called "traditional" Fifteenth Amendment actions may not be the most effective means of safeguarding voting rights. However, since section 5 simply created a new method for preventing discriminatory voting restrictions without disturbing the "traditional" procedures, it is not unreasonable to believe that Congress would remit parties challenging voting laws to the preexisting remedies in appropriate circumstances. Congress chose to repose a large measure of trust in the Attorney General's performance of his duties under section 5. It is for Congress, and not the courts, to determine if that trust was misplaced and judicial scrutiny of the Attorney General's actions under section 5 is now necessary.

In my view, the majority is exposing the courts to a potentially large influx of cases seeking review of refusals by the Attorney General to interpose objections under section 5. If the issue of compliance with a procedural regulation is subject to review under the APA despite section 5, there would seem to be little basis for distinguishing a complaint seeking ABA review of the Attorney General's compliance with his substantive regulations guiding his decision on whether to interpose an objection. The majority has taken the first step to developing a means of judicial review which could ultimately supplant the "subsequent action to enjoin enforcement" which Congress so carefully preserved in section 5. To this extent, I thus dissent.