OCTOBER TERM, 1997
Syllabus
CITY OF MONROE ET AL.
v. UNITED STATES
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF GEORGIA
No. 97-122. Decided November 17,1997
Before 1966, the city charter of Monroe, Georgia, did not
specify whether a mayoral candidate needed a plurality or a
majority vote to win election. In practice, the city used plurality
voting until 1966 and majority voting thereafter. In 1966,
Georgia's General Assembly amended Monroe's charter to require
majority voting, but the change was never submitted for
preclearance under § 5 of the Voting Rights Act of 1965. In 1968,
the State passed the current Municipal Election Code, § 34A1407(a)
of which contains a rule mandating deference to those municipal
charters that provide for plurality voting and a default rule
requiring a city whose charter has no plurality-vote provision to
use majority voting. Section 34A-1407(a) was precleared by the
United States Attorney General. When Monroe submitted its 1990
charter for preclearance, it did not ask to have the charter's
majority-vote provision precleared. Nonetheless, the Attorney
General objected to the provision and sued Monroe and city
officials to enjoin majority voting and require a return to
plurality voting. In granting the Government summary judgment, the
three-judge District Court rejected Monroe's claim that
preclearance of the 1968 state code encompassed Monroe's adoption
of a majority system.
Held: Monroe may implement §34A-1407(a)'s precleared
default rule.
The section's deference rule does not apply here because
Monroe's charter does not have and has not had a plurality-vote
provision. Thus, the District Court erred in basing its contrary
conclusion on
City of Rome v.
United States, 446 U. S. 156, 169-170,
n. 6, which concerned only the deference rule. In contrast, this
case is controlled by the default rule. It therefore satisfies all
of
City of Rome's preclearance requirements: Georgia
submitted the default rule to the Attorney General in an
unambiguous and recordable manner and gave the Attorney General
adequate opportunity to determine the purpose of the rule's
electoral changes and whether such changes would adversely affect
minority voting.
962 F. Supp. 1501, reversed.
35
PER CURIAM.
The United States claims the city of Monroe, Georgia, did not
seek preclearance for majority voting in mayoral elections, as
required by § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as
amended, 42 U. S. C. § 1973c. The Government seeks to enjoin
majority voting and to require Monroe to return to the plurality
system it had once used. A threejudge District Court for the Middle
District of Georgia agreed with the Government and granted summary
judgment. 962 F. Supp. 1501 (1997). The District Court rejected
Monroe's claim that the Attorney General's preclearance of a 1968
statewide law encompassed Monroe's adoption of a majority system.
On Monroe's motion, this Court stayed enforcement of the judgment.
521 U. S. 1138 (1997). The case is now on appeal, and the judgment
must be reversed.
I
The parties agree upon the facts. Until 1966, Monroe's city
charter did not specify whether a candidate needed a plurality or a
majority vote to win a mayoral election. In practice, the city used
plurality voting in its elections until 1966 and majority voting
thereafter.
In 1966, the General Assembly of Georgia amended the city's
charter to require majority voting in mayoral elections. 1966 Ga.
Laws 2459. Because Monroe is a jurisdiction covered by § 5 of the
Voting Rights Act, the change had to be precleared. Georgia or
Monroe could have sought preclearance by submitting the change to
the Attorney General or seeking a declaratory judgment from the
United States District Court for the District of Columbia. Neither
did, so the 1966 charter amendment was not precleared.
In 1968, the General Assembly passed a comprehensive Municipal
Election Code (1968 code), which is still in force today. The
statute applies to Monroe and all other municipalities in Georgia.
Section 34A-1407(a) of the 1968 code
36
Per Curiam
has two sentences. The first sentence sets forth a rule of
deference to municipal charters:
"If the municipal charter ... provides that a candidate may be
nominated or elected by a plurality ... , such provision shall
prevail."
The second sentence lays down a state-law default rule for all
other cities: "Otherwise, no candidate shall be ... elected ...
[without] a majority of the votes cast ... " Georgia Municipal
Election Code, § 34A-1407(a) (1968 code section or §34A-1407(a)),
1968 Ga. Laws 977, as amended, Ga. Code Ann. § 21-3-407(a)
(1993).
Georgia submitted the 1968 code to the Attorney General for
preclearance. Its cover letter stated: "'In view of the variety of
laws which heretofore existed, no effort will be made herein to set
forth the prior laws superseded by the Municipal Election Code.'"
962 F. Supp., at 1505. The letter then listed the majority-vote
provision as a significant change, noting: "'Whether the majority
or plurality rule is in effect in the municipal election will
depend upon how the municipality's charter is written at present or
may be written in [the] future .... '"
Ibid. The Attorney
General objected to other provisions of the 1968 code but did not
object to §34A-1407(a), so it was, and is, precleared. The United
States does not dispute this conclusion, nor does it claim
Georgia's submission was misleading, ambiguous, or otherwise
defective.
In 1971, the General Assembly passed a comprehensive revision of
Monroe's charter. 1971 Ga. Laws 3227. The 1971 charter made
explicit provision for majority voting. N either Georgia nor Monroe
sought to preclear the revisions to the charter.
In 1990, the General Assembly once again amended Monroe's
charter and carried forward the majority-vote requirement. This
time, Monroe sent the 1990 charter to the Attor-
37
ney General for preclearance, but the cover letter did not
mention the majority-vote provision. The Attorney General objected
to it nevertheless, interpreting the submission as effecting a
change from plurality to majority voting. The Government filed suit
against Monroe and city officials in 1994 and prevailed in the
District Court.
II
The 1968 code must be the centerpiece of this case, for it
defers where city charters are specific and provides a default rule
where they are not. If a city charter requires plurality voting,
the deference rule in the first sentence of the 1968 code section
allows the municipal charter provision to take effect. Monroe,
however, does not have and has not had a plurality-vote provision
in its charter. The first sentence simply does not apply here
because no charter provision triggers its rule of deference to
municipal law. Thus, the second sentence's default rule of state
law governs, requiring Monroe to use majority voting. Since the
Attorney General precleared the default rule, Monroe may implement
it.
The District Court reached a contrary conclusion, relying on a
single footnote in
City of Rome v.
United States, 446
U. S. 156, 169-170, n. 6 (1980). As the District Court put it:
"The
[Rome] Court's rationale focused squarely on the
notion that [Georgia's] submission of the 1968 Statewide Code did
not put before the Attorney General the propriety of changes in the
voting practices of individual cities." 962
The court's reliance on the footnote was misplaced. Unlike this
case, which concerns the default rule in the second sentence of the
1968 code section, the
City of Rome footnote concerned the
deference rule in the first sentence. Rome's pre-1966 charter had
an explicit requirement of plurality voting. When the General
Assembly amended Rome's charter to provide for majority voting, no
one sought to preclear this or other changes. "Rome [later]
argue[d] that the Attorney
38
Per Curiam
General, in preclearing the 1968 Code, [had] thereby approved by
reference the City's 1966 Charter amendments."
City of Rome
v.
United States, 472 F. Supp. 221, 233 (DC 1979), aff'd,
446 U. S. 156
(1980); see also 472 F. Supp., at 233 ("Rome argues that its
Charter, having been amended in 1966 to provide for majority
voting, did not provide for plurality voting in 1968, and that
therefore the 1968 Code mandated majority voting").
This Court rejected Rome's claim because the submission of the
1968 code did not submit Rome's 1966 charter for preclearance "in
an unambiguous and recordable manner." 446 U. S., at 170, n. 6
(internal quotation marks omitted). Georgia's submission of the
1968 code "informed the Attorney General only of [Georgia's]
decision to defer to local charters and ordinances regarding
majority voting" should a city choose to include a voting provision
in its charter as permitted by the deference rule.
Ibid.
(internal quotation marks omitted; emphasis added). Georgia's
submission of the 1968 code did not give the Attorney General "an
adequate opportunity to determine the purpose of [Rome's 1966]
electoral changes and whether they will adversely affect minority
voting."
Id., at 169, n. 6.
Indeed, Georgia's submission of the 1968 code did not even
arguably constitute a request for preclearance of the 1966 change
to Rome's charter. Given that the unprecleared charter amendment
was a nullity as a matter of federal law, the 1968 code did not
change the law in Rome. Rather, it deferred to the plurality-vote
requirement in the pre-1966 charter. In this case, however, the
1968 code is what changed the law in Monroe. Accordingly, unless
the Attorney General's preclearance of the code was a nullity,
there has been no violation of the Voting Rights Act.
In short,
City of Rome rejected Rome's effort to use the
submission of the 1968 code to validate the 1966 municipal
electoral changes.
City of Rome, in discussing the "decision
to defer to local charters," recognized that the case arose
39
under the rule of deference to municipal law. This rule of
deference would not have been interpreted to effect a change in the
law, and so it did not put the Attorney General on notice of Rome's
shift to majority voting. Because municipal law was dispositive
under the first sentence of the 1968 code section,
City
of Rome said nothing about the state-law default rule of
majority voting in the second sentence.
The instant case, in contrast, is controlled by the default rule
of state law set forth in the second sentence. Monroe's pre-1966
charter, unlike Rome's, did not require plurality voting and so
could not trigger the rule of deference to municipallaw in the
first sentence. Thus Monroe, unlike Rome, does not need to breathe
life into its invalid 1966 charter to circumvent the rule of
deference. After one disregards Monroe's invalid 1966 and 1971
charters, the state-law default rule mandates majority voting.
Cases, such as this one, arising under the default rule satisfy
all of the preclearance requirements in
City of Rome.
The Government does not dispute that Georgia submitted the
state-law default rule to the Attorney General in an "unambiguous
and recordable manner." The submission, furthermore, gave the
Attorney General "an adequate opportunity to determine the purpose
of the [default-rule] electoral changes and whether they will
adversely affect minority voting." In consequence, by preclearing
the 1968 code the Attorney General approved the state-law default
rule. The controlling default rule having been precleared, Monroe
may conduct elections under its auspices.
Because the 1968 code disposes of the case on this undisputed
factual record, the Court need not address appellants' other
contentions. The judgment of the District Court is
Reversed.
JUSTICE SCALIA, concurring in the judgment.
Although I agree with the result reached by the Court, my
reasoning is somewhat different. Like JUSTICE BREYER, I
40
believe that without knowledge of the contents of city charters
the Attorney General could no more have known the precise practical
effect of the second sentence of the Georgia statute than he could
have known the precise practical effect of the first, see
post, at 47-48. But there is, nonetheless, a critical
difference between the two sentences. As far as appears, the first
sentence (giving effect to plurality voting provisions contained in
municipal charters) does not effect any change in voting. To think
it did, one would have to suppose that prior to the statute various
municipalities were ignoring their charters, which is most
unlikely. So the first sentence did not inform the Attorney General
"in some unambiguous and recordable manner" that a change was
afoot, see
City of Rome v.
United States, 446 U. S. 156, 169, n. 6
(1980) (internal quotation marks omitted).
The second sentence, however, sets forth a default rule of
majority voting for all municipalities that have not treated the
matter in their charters. To think that this effects a change, one
need only believe that some municipalities have no charter
provision on point, and that a subset of those have adopted a
practice of plurality voting. Such a belief is not only reasonable;
it is virtually essential unless one is to consider the statute
pointless. As to the second sentence, therefore, the Attorney
General ought to have known that he was approving a switch to
majority voting in some municipalities. If that seemed to him
possibly troublesome, I think the burden was upon him to inquire
further, and not upon the State, every time it enacts a statewide
statute affecting voting, to submit a city-by-city breakdown of the
consequences.
City of Rome need not and should not be
extended that far.
JUSTICE SOUTER, with whom JUSTICE BREYER joins, dissenting.
In 1968 the Georgia Legislature enacted a Municipal Election
Code with the following provisions governing the alternatives of
plurality and majority voting:
41
"If the municipal charter ... provides that a candidate may be
nominated or elected by a plurality of the votes cast ... , such
provision shall prevail. Otherwise, no candidate shall be ...
elected to public office in any election unless such candidate
shall have received a majority of the votes cast .... " Georgia
Municipal Election Code, § 34A-1407(a), 1968 Ga. Laws 977, as
amended, Ga. Code Ann. § 21-3-407(a) (1993).
These provisions were applicable in ways that would result in no
changes in election practices in communities whose charters (so far
as otherwise enforceable) provided that a plurality would suffice,
whose charters provided that a majority was required, or whose
charters were silent but whose practices had been to require a
majority. The first sentence quoted from the code (deferring to
plurality provisions) would confirm the practice in the first class
of municipalities, while the second sentence (a default provision
requiring a majority in all other cases) would confirm the
practices in the second and third classes. The new code would,
however, require a change in the practice in any community whose
municipal charter (so far as otherwise enforceable) was silent on
the plurality-majority issue, but in which the practice had been to
accept a plurality as sufficient.
The 1968 code was submitted to the Attorney General of the
United States for preclearance under § 5 of the Voting Rights Act,
42 U. S. C. § 1973c (since the entire State of Georgia was, and
remains, subject to § 5), and the Attorney General approved the
provisions in question. In two instances we have been presented
with a question whether application of the default provision to
effect a change in practice to majority voting was precleared by
virtue of the blanket preclearance of the default provision. In the
first case,
City of Rome v.
United States,
446 U. S. 156
(1980), we answered no; in the second case, this one, the answer
should be the same.
In Rome's case, the charter provision that was valid and
enforceable when the 1968 code was precleared provided expressly
for plurality voting. Therefore, the code's deference
42
provision applied and the plurality rule remained the rule under
the code. Rome argued, however, that the default provision should
be applied so as effectively to validate an unprecleared 1966
municipal charter change to an express majority requirement. This
Court rejected the argument in these words:
"We also reject the appellants' argument that the majority vote,
runoff election, and numbered posts provisions of the city's
charter have already been precleared by the Attorney General
because in 1968 the State of Georgia submitted, and the Attorney
General precleared, a comprehensive Municipal Election Code that is
now Title 34A of the Code of Georgia. Both the relevant regulation,
28 CFR § 51.10 (1979), and the decisions of this Court require that
the jurisdiction 'in some unambiguous and recordable manner submit
any legislation or regulation in question directly to the Attorney
General with a request for his consideration pursuant to the Act,'
Allen v. State Board of Elections, 393 U. S. 544, 571
(1969), and that the Attorney General be afforded an adequate
opportunity to determine the purpose of the electoral changes and
whether they will adversely affect minority voting in that
jurisdiction, see United States v. Board of Commissioners
of Sheffield, Ala., 435 U. S. 110, 137-138
(1978). Under this standard, the State's 1968 submission cannot be
viewed as a submission of the city's 1966 electoral changes, for,
as the District Court noted, the State's submission informed the
Attorney General only of 'its decision to defer to local charters
and ordinances regarding majority voting, runoff elections, and
numbered posts,' and 'did not ... submit in an "unambiguous and
recordable manner" all municipal charter provisions, as written in
1968 or as amended thereafter, regarding these issues.' 472 F.
Supp. 221, 233 (DC 1979)." 446 U. S., at 169-170, n. 6.
43
Since the Attorney General had never been shown Rome's 1966
municipal charter change (much less pre cleared it), he had never
had an "adequate opportunity" to determine the purpose and effect
of the proposed "electoral chang[e]" from plurality to majority,
not in 1966 (because preclearance had not been sought) and not in
1968 (because he was not apprised of the purported 1966 change
necessary to produce a majority vote requirement under the 1968
code).
Monroe now claims the benefit of the 1968 code's default
provision, in circumstances just like Rome's, with one distinction.
Monroe, too, obtained a 1966 charter change purporting to enact a
majority requirement, for which Monroe, too, failed to seek
preclearance. But Monroe could arguably enforce a majority
requirement even if the 1966 unprecleared charter amendment were
ignored, simply by applying the code's default provision to the
circumstances that preceded the unprecleared 1966 amendment: before
that amendment, although Monroe's charter was silent on the
pluralitymajority issue, the municipal practice (perfectly valid
for purposes of § 5) was to accept a plurality as sufficient. Thus,
the unprecleared 1966 charter change could be ignored in Monroe's
case (as it was in Rome's) and the default provision of the 1968
code would make Monroe a majority vote municipality.
As a predicate for applying the 1968 code to effect majority
voting requirements, however, this distinction between Rome's
unprecleared 1966 change and Monroe's valid pre1966 silent charter
is not entitled to make any difference. The object of the
preclearance requirement is, at a minimum, to apprise the Attorney
General of any change in voting practice. Section 5 requires
preclearance not only in the case of a change of a voting
"standard" that was not in place when the Voting Rights Act took
effect, but also of a change in a "practice" or "procedure." 42 U.
S. C. § 1973c. The point of the preclearance procedure is to
determine whether the change proposed reflects either a "purpose"
or will have
44
the "effect" of forbidden abridgment of voting rights.
Ibid. A new practice and a new effect could result not only
from applying the code's default provision to an invalid (because
unprecleared) charter revision, but also from applying it to a
perfectly valid charter provision and practice. In either case, on
the sensible reasoning of
City of Rome, there can be
no preclearance of a new practice unless the Attorney General is
unambiguously put on notice of it. See 446 U. S., at 169-170, n. 6.
Thus, Monroe is in no different position from Rome. N either Rome
nor the State ever disclosed the 1966 charter change on which the
default provision might operate to provide a new majority vote
requirement; neither Monroe nor the State ever disclosed the
pre-1966 charter silence on which the default provision might
operate to provide a new majority vote requirement. Alternative
analyses, leading to the conclusion that the Attorney General's
preclearance of the relevant section of the 1968 code also
precleared its undisclosed effects, are not only at odds with the
unambiguous language of § 5 of the Voting Rights Act, but imply
that the Attorney General was quite the cavalier when he approved
the default provision in 1968. Since no particular charter
provisions were submitted to him along with the 1968 code,
City of Rome, supra, he was not on notice of any
particular effect that might result from application of the default
provision. It is therefore unreasonable to suppose that his
approval of the code was meant to preclear its undisclosed
applications even as to otherwise valid charter provisions and
municipal practices. *
*My analysis entails a modest but nonetheless discernible scope
for the Attorney General's preclearance of the 1968 deferral and
default provisions. The preclearance may have left the provisions
enforceable insofar as they would result in ratification of prior,
valid municipal practices (assuming that preclearance was necessary
as to such applications); in any case, the preclearance amounted to
findings that the default provision did not as such represent an
intent to affect minority voting adversely, and that some
applications of the provision would presumably be possible without
adverse effects.
45
JUSTICE BREYER, with whom JUSTICE SOUTER joins, dissenting.
City of Rome v.
United States, 446 U. S. 156 (1980),
focused upon a change in Rome, Georgia's, method of electing city
officials-a change from "first-past-the-post" (plurality wins) to
"run-off" (majority needed to win). The change took place in 1966.
The change was of a kind that could have made it more difficult for
newly enfranchised black voters to elect a mayor
(e. g.,
where the black population of a town amounted, say, to 35% of all
voters). The change had not been precleared, though § 5 of the
Voting Rights Act of 1965, as amended, 42 U. S. C. § 1973c,
required preclearance. In 1968, however, Georgia had precleared a
different change in its law. Georgia had submitted, and the
Attorney General had precleared, a comprehensive Municipal Election
Code that provided, in relevant part:
"If the municipal charter ... provides that a candidate may be
nominated or elected by a plurality of the votes cast ... , such
provision shall prevail. Otherwise, no candidate shall be ...
elected to public office in any election unless such candidate
shall have received a majority of the votes cast .... " Georgia
Municipal Election Code, § 34A-1407(a), 1968 Ga. Laws 977, as
amended, Ga. Code Ann. § 21-3-407(a) (1993).
Rome argued that the Attorney General's preclearance of this
1968 change in effect precleared the plurality-tomajority change
that Rome had made two years earlier. The Court rejected Rome's
argument.
The case before us now involves another Georgia city, the city
of Monroe. Monroe, like Rome, made a change in its system for
electing city officials-a change from "first-pastthe-post"
(plurality wins) to "run-off" (majority needed to win). Monroe,
like Rome, made the change in 1966. And, Monroe's change, like
Rome's change, was not precleared. Monroe, like Rome, argues that
the Attorney General's pre-
46
clearance of Georgia's 1968 change in effect pre cleared its
change to a majority system. Monroe acknowledges that this Court,
in
City of Rome, supra, rejected Rome's similar claim. But
it asks us to note probable jurisdiction in part to "address the
impact of the Attorney General's preclearance of the 1968 Municipal
Elections Code as it relates to the majority vote requirement."
Juris. Statement 17. In my view, the circumstances here are
virtually identical to those at issue in
City of Rome, and
this Court's rejection of Rome's argument there requires us to
reject Monroe's similar argument here.
I rest this conclusion upon what the parties argued before the
Court in
City of Rome and what the Court wrote. Rome, like
Monroe, claimed that, in preclearing the 1968 statewide statute,
the Attorney General had precleared its local majority system. The
reply, by the United States, in
City of Rome, included the
following argument:
"In its 1968 submission, the State did not 'submit' the changes
as they applied to the City of Rome. There was no explanation of
how, or even whether, the City's procedures were changed. In order
to 'submit' a new procedure, the change must be clearly explained
to the Attorney General, 28 C.F.R. 51.10; he cannot reasonably be
held to be put on notice of the election procedures for every
municipality when an act with statewide effect is submitted. As
this Court [has] held, preclearance cannot occur until the
particular change has been submitted to the Attorney General and he
has been afforded an opportunity to assess its purpose and its
effect on minority voting in that jurisdiction." Brief for
Appellees in City of Rome v. United States, O. T.
1979, No. 78-1840, pp. 69-70 (citation omitted).
This Court, accepting the argument of the United States,
wrote:
47
"Both the relevant regulation, 28 CFR § 51.10 (1979), and the
decisions of this Court require that the jurisdiction 'in some
unambiguous and recordable manner submit any legislation or
regulation in question directly to the Attorney General with a
request for his consideration pursuant to the Act,' and that the
Attorney General be afforded an adequate opportunity to determine
the purpose of the electoral changes and whether they will
adversely affect minority voting in that jurisdiction. Under this
standard, the State's 1968 [preclearance] submission cannot be
viewed as a submission of the city's 1966 electoral changes, for,
as the District Court noted, the State's submission informed the
Attorney General only of 'its decision to defer to local charters
and ordinances regarding majority voting, ... ' and 'did not ...
submit in an "unambiguous and recordable manner" all municipal
charter provisions, as written in 1968 or as amended thereafter,
regarding th[is] issu[e].'" City of Rome v. United
States, supra, at 169-170, n. 6 (citations omitted).
It seems to me that this statement disposes of the case before
us. The statement points out that Georgia's 1968 submission did not
describe the effect of its 1968 changes, town by town, in each of
Georgia's more than 500 towns and cities. The statement
specifically says that Georgia's simple "submission" of its 1968
comprehensive municipal code did not preclear Rome's "1966
electoral chang[e]" because Georgia did not also "submit" the
relevant "municipal charter provisions, as written in 1968 or as
amended thereafter." Georgia did not submit Monroe's charter to the
Attorney General in 1968 any more than it submitted Rome's; nor is
there any reason to believe that the Attorney General knew the
details of Monroe's circumstances any more than he knew the details
of Rome's. Hence, as the District Court concluded in this case, the
1968 preclearance did not preclear Monroe's earlier 1966 change.
City of Rome, supra.
48
The majority's decision to the contrary rests upon one factual
difference between Rome and Monroe. The difference consists of the
fact that Rome's original pre-1966 "firstpast-the-post" plurality
system was written into Rome's city charter. But Monroe's original
pre-1966 "first-past-thepost" plurality system was a matter of
practice. Its pre1966 city charter was silent. This difference
means that, had a court set aside the 1966 changes in each city,
and were no other change to have taken place, then Rome would have
been left with a city charter that prescribed a plurality rule,
while Monroe would have been left with a silent city charter and a
plurality practice. The precleared 1968 state law, if left free to
operate on these different circumstances, would have left Rome with
a plurality rule (for its pre-1966 city charter contained that
rule), but would have changed Monroe's plurality practice to a
majority practice (for its pre-1966 city charter was silent).
This complex difference, in my view, is irrelevant. The Attorney
General, in 1968, was no more likely to have known about Monroe's
change from "plurality-practice" to "majority-charter" than to have
known about Rome's change from "plurality-charter" to
"majority-charter." Nor is there any reason to believe the Attorney
General, in 1968, would have wanted to approve previously
unprecleared changes of the former, but not of the latter, variety.
There is no more reason to believe that the Attorney General, had
he known about Monroe's 1966 change, would have approved the
application of the 1968 law to Monroe, than to believe that the
Attorney General, had he known about Rome's change, would have
approved the application of the 1968 law to Rome. Indeed, if
Monroe's black population in 1966 was as high as it is today (37%
of the electorate), Monroe's change to a majority vote system could
have been precisely the sort of discriminatory change at which the
Voting Rights Act was directed.
49
The majority, and JUSTICE SCALIA, make a further argument
resting upon a distinction between the first and second sentences
of the 1968 code that the Attorney General precleared. The majority
says, for example, that
City of Rome "said nothing about the
state-law default rule of majority voting in the second sentence,"
ante, at 39; and JUSTICE SCALIA refers to a "second sentence
... default rule of majority voting for all municipalities that
have not treated the matter in their charters,"
ante, at 40.
The majority then finds that the Attorney General precleared the
secondsentence default rule as applied to Monroe, apparently
because it believes that "[t]he Government does not dispute that
Georgia submitted the state-law default rule to the Attorney
General in an 'unambiguous and recordable manner,'"
ante, at
39. JUSTICE SCALIA reaches the same conclusion, not because of the
Government's position, but because, in his view, the "burden was
upon" the Attorney General to seek more information about the
"city-by-city" effects of the statute at the time it was submitted.
Ante, at 40.
A glance at the Georgia statute,
supra, at 45, will make
clear, however, just how finely the majority has had to parse the
statute in its effort to escape the binding effect of precedent.
That is because
City of Rome (involving a city with a
"majority" charter) and this case
both concern the statute's
second sentence. See Brief for Appellants in
City of
Rome v.
United States, O. T. 1979, No. 78-1840, p. 90;
City of Rome v.
United States, 472 F. Supp. 221, 233
(DC 1979) ("Rome argues that ... the 1968 Code
mandated
majority voting") (emphasis added). And nowhere does either the
statute's second sentence or
City of Rome explicitly make
the default! deference distinction that the majority finds
critical.
More importantly, there is no reason to think the distinction is
critical in respect to the matter here at issue. The Government has
not conceded, silently or otherwise, that the Attorney General's
preclearance of a statutory "default rule" somehow precleared the
application of some such rule to
50
Monroe. To the contrary, the Government's argument, which
concerns
all applications of the "majority" language in the
1968 code's second sentence, is that:
"[P]reclearance of the majority vote provision incorporated in
the State of Georgia's 1968 Municipal Election Code did not also
preclear the prior or subsequent adoption and implementation of a
majority vote requirement by any particular municipality within the
State." Motion to Affirm 11.
That argument rather clearly says that the Attorney General, in
effect, precleared the Georgia statute on its face, not as applied
to each of Georgia's several hundred municipalities. That is the
very argument that the Government made, and the Court accepted, in
City of Rome.
JUSTICE SCALIA does not take the majority's view of the
Government's argument. Rather, he says that, in any event, the
Attorney General's initial preclearance of the second sentence
simultaneously precleared that sentence's application because the
State's submission was detailed enough to impose upon the Attorney
General the "burden" of seeking detailed city-by-city information.
Ante, at 40. In my view, however, precedent compels a
contrary conclusion. In respect to the relevant point-whether the
Attorney General cleared the statute on its face or also as
applied-one cannot distinguish the issue before us from the (in
this respect) identical issue in
City of Rome. And that
conclusion is consistent with well-established legal principle. See
Clark v.
Roemer, 500 U. S. 646, 656 (1991)
("[A]ny ambiguity in the scope of a preclearance request must be
resolved against the submitting authority");
McCain v.
Lybrand, 465
U. S. 236, 257 (1984) (same); 28 CFR §§ 51.26(d), 51.27(c)
(1997) (requiring preclearance submissions to explain changes
clearly and in detail).
In a nutshell,
City of Rome turns on the practical fact
that the Attorney General, in pre clearing the 1968 Georgia
51
statute, would not have intended to preclear earlier,
potentially unlawful, local changes of which he had not
specifically been told. Rome was one such city. Monroe was another.
The District Court consequently concluded that the Attorney
General's preclearance of the 1968 statute did not preclear
Monroe's earlier change, any more than it did Rome's. I agree with
the District Court and would affirm its judgment.
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