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Subject: 90-952--OPINION, CLARK v. ROEMER




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-952



AJANICE G. CLARK, et al., APPELLANTS v. CHARLES "BUDDY" ROEMER, GOVERNOR OF
LOUISIANA, et al.

Bon appeal from the united states district court for the middle district of
louisiana

C[June 3, 1991]



A Justice Kennedy delivered the opinion of the Court.

B This case raises two issues under 95 of the Voting Rights Act of 1965, 79
Stat. 439, as amended, 42 U.9S.9C. 91973c.CI D The Voting Rights Act of
1965, 42 U.9S.9C. 91973 et seq., contains two major provisions governing
discrimination in election practices.  Section 2 addresses existing
election procedures.  It prohibits procedures that "resul[t] in a denial or
abridgement of the right of any citizen of the United States to vote on
account of race or color .9.9.9." 91973(a).  Section 5 governs changes in
voting procedures.  In order to prevent changes that have a discriminatory
purpose or effect, 95 requires covered jurisdictions, such as Louisiana, to
obtain preclearance by one of two methods before implementing new voting
practices.  91973c.  Through judicial preclearance, a covered jurisdiction
may obtain from the United States District Court for the District of
Columbia a declaratory judgment that the voting 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."  Ibid.  Through administrative
preclearance, the jurisdiction may submit the change to the Attorney
General of the United States.  If the Attorney General "has not interposed
an objection within sixty days after such submission," the State may
enforce the change.  Ibid.
    Appellants are black registered voters and a voting rights organization
in Louisiana.  They filed this suit in 1986 under 92 and 5 of the Voting
Rights Act, challenging the validity of Louisiana's multimember, at large
electoral scheme for certain appellate, district, and family court judges.
Under 92, appellants alleged that Louisiana's electoral scheme diluted
minority voting strength.  In an amended complaint filed in July 1987,
appellants also alleged that Louisiana violated 95 by failing to submit for
preclearance a number of statutory and constitutional voting changes, many
of them adopted in the late 1960's and 1970's.  The 92 portion of the case
was assigned to a single District Court Judge; the 95 allegations were
heard by a three-judge District Court, 42 U.9S.9C. 91973c; 28 U.9S.9C.
92284.
    In response to the appellants' 95 allegations, Louisiana submitted all
of the unprecleared voting changes for administrative preclearance.  In
September 1988 and May 1989, the Attorney General granted preclearance for
some of the changes, but objected to others.  On June 18 and 20, 1990,
Louisiana asked the Attorney General to reconsider his denial of
preclearance for these seats, and proceeded with plans to hold elections
for them in the fall of 1990.  On July 23, 1990, petitioners filed a motion
asking the three-judge District Court to enjoin the elections for the
unprecleared seats.
    On August 15, 1990, the District Court presiding over the 92 case
enjoined the State from holding elections in 11 judicial districts which it
determined violated 92.  Some of these judicial districts were also at
issue in the 95 portion of the case.  On September 28, 1990, the
three-judge District Court presiding over the 95 case denied appellants'
motion to enjoin the State from holding elections for the seats not blocked
by the 92 injunction.  The three-judge panel, however, did enjoin the
winning candidates from taking office pending its further orders.
    Also on September 28, 1990, the United States Court of Appeals for the
Fifth Circuit, sitting en banc, held that judges are not representatives
for purposes of 92 of the Voting Rights Act.  League of the United Latin
American Citizens Council No.94434 v. Clements, 914 F. 2d 620 (1990), cert.
granted, 498 U.9S. Z (1991).  Based on this precedent, the District Court
Judge presiding over the 92 aspect of the case dissolved the 92 injunction
on October 2 and ordered that elections for the 11 districts be held on
November 6 and December 8, 1990.  On the same day, the threejudge District
Court presiding over the 95 case refused to enjoin the elections for the
unprecleared seats, but it again enjoined the winning candidates from
taking office pending its further orders.  As of October 2, 1990, then,
Louisiana had scheduled elections for all of the judgeships to which the
Attorney General had interposed objections.
    In an October 22 order and an October 31 opinion, the three-judge
District Court made its final pronouncement on the status of the
unprecleared judgeships.  The court divided the unprecleared electoral
changes into two categories.  Category one involved at-large judgeships in
districts where, for the most part, the State had obtained administrative
preclearance for later-created judgeships.  The three-judge District Court
held that, despite his current objections, the Attorney General had
precleared the earlier judgeships when he precleared the later, or related,
voting changes.  For example, the First Judicial District Court in Caddo
Parish has a number of judgeships, called Divisions, subject to 95.
Louisiana submitted and obtained approval for Divisions E (created in 1966,
precleared in 1986), G (created and precleared in 1976), H (created and
precleared in 1978), and I (created and precleared in 1982).  Division F
was not submitted for approval when it was created in 1973; rather, it was
submitted and objected to in 1988.  The three-judge District Court held,
however, that when the Attorney General precleared Divisions G, H, and I,
he also precleared Division F.  The court reasoned that because the
legislation creating Divisions G, H, and I added to the number of prior
judgeships in Caddo Parish, including Division F, approval of the
legislation constituted approval of Division F.  751 F. Supp. 586, 592, and
n.935 (MD. La. 1990).
    Category two under the court's ruling involved judgeships subject to
valid objections by the Attorney General.  Yet despite its holding that
these unprecleared judgeships violated 95, the court refused to enjoin the
elections.  It found "the potential harm to all of the citizens of
Louisiana [from such an injunction] outweigh[ed] the potential harm, if
any, of allowing the elections to continue."  Id., at 595.  It allowed the
election to proceed under the following conditions.  The winning candidates
could take office if, within 90 days, Louisiana filed a judicial
preclearance action in the United States District Court for the District of
Columbia or persuaded the Attorney General to withdraw his objections.  The
winners of the election could remain in office pending judicial
preclearance, and could retain office for the remainder of their terms if
the State obtained judicial preclearance.  If the State failed to obtain
judicial preclearance, the installed candidates could remain in office only
150 days after final judgment by the District Court.
    On October 29, 1990, appellants filed an emergency application in this
Court to enjoin the November 6 and December 8 elections pending appeal.  On
November 2, we granted the application in part and enjoined the elections
for the judgeships that the District Court conceded were uncleared.  Clark
v. Roemer, 498 U.9S. Z, modified, 498 U.9S. Z (1990).  We did not overturn
the District Court's refusal to enjoin elections for the judgeships that it
considered precleared by implication.  Ibid.
    On January 18, 1991, we noted probable jurisdiction.  498 U.9S. Z.  The
next day, the State sought judicial preclearance for the electoral changes
that the three-judge District Court found to be uncleared.  That action is
still pending in the United States District Court for the District of
Columbia.

NII
D The case presents two discrete issues under 95 of the Voting Rights Act.
First, we must decide whether the District Court erred by not enjoining
elections held for judgeships to which the Attorney General interposed
valid 95 objections.  Second, we must determine whether the State's failure
to preclear certain earlier voting changes under 95 was cured by the
Attorney General's preclearance of later, or related, voting changes.

NA
D The District Court held that the Attorney General had interposed valid
objections to some judgeships.  Nonetheless, it permitted elections for
those seats to go forward and allowed the winners to take office pending
resolution of Louisiana's judicial preclearance request.  This ruling was
error.
    Section 5 requires States to obtain either judicial or administrative
preclearance before implementing a voting change.  A voting change in a
covered jurisdiction "will not be effective as la[w] until and unless
cleared" pursuant to one of these two methods.  Connor v. Walker, 421 U.9S.
656 (1975) (per curiam).  See also United States v. Board of Supervisors of
Warren County, 429 U.9S. 642, 645 (1977) ("No new voting practice or
procedure may be enforced unless the State or political subdivision has
succeeded in its declaratory judgment action or the Attorney General has
declined to object").  Failure to obtain either judicial or administrative
pre-clearance "renders the change unenforceable."  Hathorn v. Lovorn, 457
U.9S. 255, 269 (1982).  If voting changes subject to 95 have not been
precleared, 95 plaintiffs are entitled to an injunction prohibiting the
State from implementing the changes.  Allen v. State Bd. of Elections, 393
U.9S. 544, 572 (1969).
    The District Court ignored these principles altogether.  It presented a
number of reasons for not enjoining the election, none of which we find
persuasive.  The court cited the short time between election day and the
most recent request for injunction, the fact that qualifying and absentee
voting had begun, and the time and expense of the candidates.  But the
parties, the District Court, and the candidates had been on notice of the
alleged 95 violations since appellants filed their July 1987 amended
complaint.  When Louisiana asked the Attorney General for reconsideration
of its original preclearance decision in June 1990, it became apparent that
the State intended to hold elections for the unprecleared seats in the fall
of the same year.  Less than a month later, and more than two months before
the scheduled October 6, 1990, election, appellants filed a motion to
enjoin elections for the unprecleared seats.  Appellants displayed no lack
of diligence in challenging elections for the unprecleared seats, and every
participant in the process knew for over three years that the challenged
seats were unprecleared, in violation of 95.
    The other reasons for the District Court's decision lack merit as well.
The District Court maintained that the applicability of 95 to judges was
uncertain until our summary affirmance in Brooks v. Georgia State Board of
Elections, Z F. Supp. Z, aff'd mem., 498 U.9S. Z (1990).  But in Haith v.
Martin, 618 F. Supp. 410 (EDNC 1985), aff'd mem., 477 U.9S. 901 (1986), we
issued a summary affirmance of a decision holding that 95 applied to
judges.  Nor did the District Court's vague concerns about voter confusion
and low voter turnout in a special election for the unprecleared seats
justify its refusal to enjoin the illegal elections.  Voters may be more
confused and inclined to avoid the polls when an election is held in
conceded violation of federal law.  Finally, the District Court's stated
purpose to avoid possible challenges to criminal and civil judgments does
not justify allowing the invalid elections to take place.  To the contrary,
this concern counsels in favor of enjoining the illegal elections, thus
averting a federal challenge to state judgments.
    The three-judge District Court, 751 F.Supp., at 595, maintained that
its decision to give provisional effect to elections conducted in violation
of 95 "closely parallel[ed]" a number of our decisions, including Perkins
v. Matthews, 400 U.9S. 379 (1971), NAACP v. Hampton County Election
Commission, 470 U.9S. 166 (1985), Berry v. Doles, 438 U.9S. 190 (1978), and
Georgia v. United States, 411 U.9S. 526 (1973).  The cases are inapposite.
Perkins stated that "[i]n certain circumstances9.9.9.9it might be
appropriate to enter an order affording local officials an opportunity to
seek federal approval and ordering a new election only if local officials
fail to do so or if the required federal approval is not forthcoming."  400
U.9S., at 396-397.  But in Perkins, as in Hampton County, Berry, and
Georgia, the elections in question had been held already; the only issue
was whether to remove the elected individuals pending preclearance.  Here
the District Court did not face the ex post question whether to set aside
illegal elections; rather, it faced the ex ante question whether to allow
illegal elections to be held at all.  On these premises, 95's prohibition
against implementation of unprecleared changes required the District Court
to enjoin the election.  This is especially true because, unlike the
circumstance in Perkins, Hampton County, Berry, or Georgia, the Attorney
General interposed objections before the election.
    We need not decide today whether there are cases in which a District
Court may deny a 95 plaintiff's motion for injunction and allow an election
for an unprecleared seat to go forward.  An extreme circumstance might be
present if a seat's unprecleared status is not drawn to the attention of
the State until the eve of the election and there are equitable principles
that justify allowing the election to proceed.  No such exigency exists
here.  The State of Louisiana failed to preclear these judgeships as
required by 95.  It received official notice of the defect in July 1987,
and yet three years later it had still failed to file for judicial
preclearance, the "basic mechanism" for preclearance, United States v.
Sheffield Board of Comm'rs, 435 U.9S. 110, 136 (1978).  It scheduled
elections for the unprecleared seats in the fall of 1990 even after the
Attorney General had interposed objections under 95.  In short, by the fall
1990 election, Louisiana had with consistency ignored the mandate of 95.
The District Court should have enjoined the elections.

NB
D The District Court held also that the Attorney General's preclearance of
voting change legislation in some districts operated to preclear earlier
voting changes in those districts, even though the Attorney General now
objects to the earlier changes.  This ruling conflicts with our decision in
McCain v. Lybrand, 465 U.9S. 236 (1984), and subverts the efficacy of
administrative preclearance under 95.
    McCain involved a 1966 South Carolina statute establishing a
three-member county council elected at large by all county voters and
requiring candidates to reside in and run from one of three residency
districts.  The State failed to preclear the 1966 statute.  In 1971, the
State amended the statute to increase the number of residency districts and
county council members from three to five, and submitted the new Act for
preclearance.  Based on a request by the Attorney General for additional
information, South Carolina also submitted a copy of the 1966 Act.  The
Attorney General declined to interpose any objection "to the change in
question."  Id., at 241.  In a later 95 challenge to the 1966 changes, a
District Court held that the Attorney General's request for additional
information indicated that he considered and approved all aspects of the
electoral scheme subject to the 1971 amendments, including the changes
effected by the 1966 Act.  In the alternative, the District Court held that
since the 1971 Amendment retained or incorporated changes effected by the
1966 Act, the lack of objection to the 1971 submission constituted approval
of the 1966 Act.
    We reversed both holdings.  We made clear that the submission of
legislation for administrative preclearance under 95 defines the scope of
the preclearance request.  Under normal circumstances, a submission
pertains only to identified changes in that legislation.  Id., at 251, 257.
We established also that any ambiguity in the scope of a preclearance
request must be resolved against the submitting authority.  Ibid.  Applying
these standards, we held that the threejudge District Court's finding that
the Attorney General had considered and approved the changes made by the
1966 Act in the course of approving the 1971 amendment was clearly
erroneous, because the information submitted was limited to election
changes effected by the 1971 amendments.
    We held further that the District Court erred as a matter of law in
determining that approval of the 1971 submission was also an approval of
the changes in the 1966 statute.  We explained that "the preclearance
procedures mandated by 95 .9.9. focus entirely on changes in election
practices," id., at 251, and that "submission of a particular change does
not encompass all prior changes--precleared or not--that have been made
since the Act's effective date .9.9.9," id., at 255, n.926.

E
"When a jurisdiction adopts legislation that makes clearly defined changes
in its election practices, sending that legislation to the Attorney General
merely with a general request for preclearance pursuant to Section 5
constitutes a submission of the changes made by the enactment and cannot be
deemed a submission of changes made by previous legislation which
themselves were independently subject to Section 5 preclearance."  Id., at
256.
F

    The three-judge District Court in the instant case reasoned as follows
in ruling that submission and approval of the later electoral changes
constituted submission and approval of the earlier changes:

E
"[W]e find that there was express approval by the Attorney General for
those judicial positions set forth in Part I of our October 22, 1990,
order.  The language of the various acts submitted to the Attorney General,
as well as the letters submitted by the State of Louisiana seeking
preclearance, support this conclusion.  Thus, the change submitted to the
Attorney General is not only the Amendment, but the entire act as passed by
the legislature.  When the Attorney General approves the new act, he not
only approves the amended portion but necessarily approves the older,
reenacted part, which forms part of the new act.  Thus, when an act
provides for a certain number of judicial positions, approval of that act
must include all of the judicial positions necessary to reach that number."
751 F. Supp., at 592-593 (footnotes omitted).
F

And in a footnote, the court explained that the submission of the later
Acts covered the earlier Acts as well because "in most cases the letter of
submission clearly and expressly states that the number of judges in a
particular district is being increased from one number to another."  Id.,
at 592-593, n.938.  On this basis alone, the District Court distinguished
McCain.  751 F. Supp., at 592-593, n.938.
    The District Court's explanation for its holding replicates the precise
factual and legal errors we identified in McCain.  Its ruling that
preclearance "not only approves the amended portion of the new act but
necessarily approves the older, reenacted part, which forms part of the new
act" is inconsistent with McCain.  McCain establishes a presumption that
the Attorney General will review only the current changes in election
practices effected by the submitted legislation, not prior unprecleared
changes reenacted in the amended legislation.  A submission's description
of the change from one number of judges to another in a particular judicial
district does not, by itself, constitute a submission to the Attorney
General of the prior voting changes incorporated in the newly amended
statute.  "A request for preclearance of certain identified changes in
election practices which fails to identify other practices as new ones thus
cannot be considered an adequate submission of the latter practices."  465
U.9S., at 256-257.  Of course, a State may include earlier unpre cleared
changes as a specific submission along with its preclearance request for
contemporary legislation.  But it must identify with specificity each
change that it wishes the Attorney General to consider.
    The requirement that the State identify each change is necessary if the
Attorney General is to perform his preclearance duties under 95.  The
Attorney General has substantial responsibilities under 95.  The Attorney
General represents to us that he reviews an average of 17,000 electoral
changes each year, and that within the 60-day preclearance period, he must
for each change analyze demographics, voting patterns, and other local
conditions to make the statutory judgment concerning the presence of a
discriminatory purpose or effect.  Brief for United States as Amicus Curiae
22, n.918.  Congress recognized that the Attorney General could not, in
addition to these duties, also monitor and identify each voting change in
each jurisdiction subject to 95.  "[B]ecause of the acknowledged and
anticipated inability of the Justice Department--given limited
resources--to investigate independently all changes with respect to voting
enacted by States and subdivisions covered by the Act," 465 U.9S., at 247,
Congress required each jurisdiction subject to 95, as a condition to
implementation of a voting change subject to the Act, to identify, submit,
and receive approval for all such changes.  The District Court's holding
upsets this ordering of responsibilities under 95, for it would add to the
Attorney General's already redoubtable obligations the additional duty to
research each submission to ensure that all earlier unsubmitted changes had
been brought to light.  Such a rule would diminish covered jurisdictions'
responsibilities for self-monitoring under 95 and would create incentives
for them to forgo the submission process altogether.  We reaffirm McCain in
rejecting this vision of 95.
    In light of its legal errors, the District Court's finding that the
Attorney General "expressly approved" the prior uncleared changes cannot
stand.  Neither the initial submission nor the Attorney General's ruling
upon it can be deemed to include the earlier unprecleared seats.
Louisiana's submissions of contemporary legislation to the Attorney General
failed as a matter of law to put him on notice that the prior unsubmitted
changes were included.  None of the submissions informed the Attorney
General that prior voting changes were uncleared and were being transmitted
along with the new changes.  In most instances, Louisiana submitted only
the legislation containing the new voting change.  The record contains five
submission letters, but these communications do not give requisite notice.
Two were mere cover letters that added nothing to the submitted
legislation.  The other three letters note changes in the number of judges
in a District, but as we have explained, this alone does not constitute a
submission of the prior uncleared changes.  In light of these legal errors
and the presumption that "any ambiguity in the scope of the preclearance
request" must be construed against the submitting jurisdiction, id., at
257, "we are left with the definite and firm conviction," id., at 258, that
the court erred in finding that the Attorney General gave express approval
to the earlier changes.
    Appellants request that we set aside the elections held for these seats
and remove the judges from office.  This is not a proper matter for us to
consider in the first instance.  "[A] local district court is in a better
position than this Court to fashion relief, because the district court `is
more familiar with the nuances of the local situation' and has the
opportunity to hear evidence."  Hathorn v. Lovorn, 457 U.9S., at 270,
quoting Perkins v. Matthews, 400 U.9S., at 397.  In fashioning its decree
granting relief, the district court should adopt a remedy that in all the
circumstances of the case implements the mandate of 95 in the most
equitable and practicable manner and with least offense to its provisions.
    The judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.


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