National Association for the Advancement of Colored People v. Hampton County Election Commission

PETITIONER:Hampton County Election Comm’n
RESPONDENT:National Association for the Advancement of Colored People
LOCATION:United States Courthouse

DOCKET NO.: 83-1015
DECIDED BY: Burger Court (1981-1986)

CITATION: 470 US 166 (1985)
ARGUED: Nov 28, 1984
DECIDED: Feb 27, 1985

Armand Derfner – on behalf of appellants
David A. Strauss – as amicus curiae supporting appellants
Treva G. Ashworth – on behalf of appellees

Facts of the case


Audio Transcription for Oral Argument – November 28, 1984 in National Association for the Advancement of Colored People v. Hampton County Election Commission

Warren E. Burger:

Mr. Derfner, I think you may proceed with a reduced audience here.

Armand Derfner:

Thank you.

Mr. Chief Justice, and may it please the Court:

This case involves a school board election in Hampton County, South Carolina, in particular, a special election held in March 1983 without the preclearance that we think is required under Section 5 of the Voting Rights Act.

Hampton County is a small, rural county in the lower part of the state, just across the river from the State of Georgia.

It is approximately half black and half white.

It is divided into two school districts.

District 1 in the north is pretty well integrated, well financed because of a good tax base, including some industrial area, and has generally been fairly successful.

District 2 in the south is mostly black, a very poor school district, suffering largely from a very poor tax base.

These disparities between the two school districts have produced considerable political controversy in the county, especially controversy between supporters of a strong countywide board of education who have been mostly black, and those supporters of strong autonomous district boards who have been mostly whites, especially in the northern part of the county.

In 1982 this controversy culminated in the General Assembly’s passing Act 549.

Act 549 abolished the county board and changed the district boards from appointed boards to elected district boards.

It provided that the elections for the district boards would be held in November along with the general elections, and it also provided that the first filing, that is, for the elections in 1982, would be conducted in August, on specified dates between August 16 and 31.

For reasons that will probably become clear, preclearance of this statute, which was passed in the spring of 1982, was not obtained until after the November election date, that is, until mid-November 1982.

Because preclearance had not been obtained, the election did not go forward.

However, despite the absence of preclearance, the Appellees, the election commission, had gone ahead with a filing period in August of 1982.

After preclearance was obtained, in the middle of November, the election commission then set about to set a special election.

They did so selecting a date in March 1983 without preclearing that date, and they also then selected a filing period also without preclearance.

The filing period happened to be the same dates in August of 1982 that they had previously had the previous year at a time when the statute had not been precleared.

In fact, that filing period was enforced in 1983 by turning away several candidates, including one of the plaintiffs, who appeared after the announcement of the March election and wanted to run in that election.

Those people were turned away.

This suit, therefore, was brought to stop the special election in March, chiefly because there had been no preclearance of the election date with filing period.

The District Court upheld the Appellees in both the setting of the special election without preclearance, and the setting of the filing period without preclearance on the grounds essentially that election dates and filing periods are in effect not covered by Section 5 because they are ministerial, administrative, or things of that sort, and in the alternative, the District Court held that when the department had cleared the statute at 549 in November, that that clearance was essentially blanket approval of all that had gone before as well as all that might come afterward, even though at the time of the Department’s clearance in November it was not even known whether or when there would be a special election or what filing arrangements would be made.

William H. Rehnquist:

It was at least known then, though, that there would have to be a special election, wasn’t it?

Armand Derfner:

It was known that… it would have been known that if the county, if the state wanted to proceed with the enforcement of Act 549, they would have to have an election at some point.

Whether they were going to have a special election or wait until the following November period in 1984, that wasn’t known.

William H. Rehnquist:

Well, do you think it was very likely they would wait two years?

Armand Derfner:

I don’t know.

I don’t think there’s any basis for having any idea what was going to happen.

There were people who had been elected because of a complicated procedural situation, and there were people there running the school systems who had been duly elected.

Armand Derfner:

Before I leave the facts, I would like to address briefly the question of what happened just before the preclearance because the date may be puzzling.

The Act 549 was passed in April of 1982.

It was not, however, submitted for preclearance for more than two months, for approximately two and a half months, in June.

It was then, an answer was due in August, and at that time the Justice Department objected to Act 549 on the grounds that the abolition of the county board would dilute the votes of black voters in their attempts to exercise political influence over schools in Hampton County.

A petition for reconsideration was made, and in November the Department withdrew its objection.

That’s when preclearance was first obtained.

It withdrew its objection because it read state law to indicate that certain powers didn’t reside in the county board.

We happen to think that the Department misread the state law in that.

That is neither here nor there because obviously we can’t complain about the Department’s decision.

I mention it only to indicate that the objection that the Department had entered was quite a serious one, responding to a serious situation, and that therefore the time that passed before the department had finally precleared it was not simply an accident.

The question before this Court then is whether there was any basis for the District Court to make its broad exceptions and in effect to, we believe, to read out of the law this Court’s prior holdings and the clear language of the statute.

In connection with the setting of a special election date, we think that there could hardly be anything which is more clearly a standard practice or procedure regarding an election.

The specific language of the statute seems to cover that.

The prior cases of this Court, the consistent practice of the United States Department of Justice, the potential for discrimination that resides in the ability to set an election date with essentially no standards, no guidance, and finally, we think that–

Warren E. Burger:

Let me get your reaction.

Armand Derfner:

–Yes, Mr. Chief Justice.

Warren E. Burger:

In setting the time, what are the factors that could be used for or against?

How would the time enter into it?

I can see you wouldn’t… sometimes time is a factor that the farmers can’t come in if they are engaged in harvesting and things of that kind?

What would be the factors here?

Armand Derfner:


The question is, I gather you are asking that in what way could the setting of an election date be discriminatory?

It could be set so quickly that nonincumbents had no right to campaign.

It could be set so far back that other factors intruded.

It could be set at a time when migrants… and there are migrants in Hampton County… were there or were not there.

It could be set at a time when students were there or not there.

And I should remark that in the last two categories, there have been cases in the lower courts, not from South Carolina, which have found election dates to be discriminatory because of those reasons, both cases from Texas, as I recall.

So there is a lot of potential for discrimination in the setting of a date, and that is the factor which leads the Voting Rights Act to say that this is something that the Department of Justice ought to consider.

Warren E. Burger:

So that a Section 5 inquiry would be a neutral eye cast on that?

Armand Derfner:

Yes, although in this case the Section 5 inquiry I would think would also look at the conditions precedent to the election, specifically, what is the filing period?

Armand Derfner:

And I would think that the department could have found in this situation that holding a March election without a new filing period would make that election date itself discriminatory.

So there are a world of ways.

I should say that the Appellees, I think they do not really challenge this view because on page 27 of the Election… I’m sorry, the School Board’s brief, they say we agree… they agree, in effect, that an election date set by statute would have to be precleared, and they seek to draw an exception for something which is set by simple administrative decision.

I would think that there is certainly no exception, that this Court’s cases have dealt with administrative decisions, informal, ad hoc decisions, as well as they have with statutes, and in fact, if anything is more of a danger under the Voting Rights Act, I should think it would be nonstatutory changes.

As to the filing period, as to the filing period, I think it is equally clear, in fact, the cases of this Court make it clearer because the very first couple of cases, the Allen case, the Hadnott case, dealt specifically with filing periods.

So I think there could hardly be an argument that setting a filing period is not something that has to be covered by Section 5.

The Appellees say, though, following the District Court, that in this case the Attorney General did preclear the filing period because when he sent his letter in November of 1982, that letter precleared Act 549 which had an August filing period, and they said that’s all we were doing, we were putting that same filing period back–

But the Attorney General says that he didn’t preclear that filing period; he says that he precleared an August filing period for a November election, and I think that the Attorney General’s view, first of all, is entitled to great weight.

Congress has given him great weight.

This Court has always accorded his views great weight.

Moreover, what the Attorney General says about the inseparability of filing periods and elections makes, it seems to me to make all the sense in the world.

If you said that a filing period can exist in the abstract without being tied to an election date, then I suppose we could have a situation, to use an example, of if this Court were to agree with us on the election date and not agree with us on the filing period, we could conceivably go back.

The District Court could order a new election in 1985, and the Appellees could come back and say fine, we will still use the 1982 filing period.

In addition to the Attorney General’s statement with which we agree that the filing period was attached only to the November election, and that’s all he precleared, we think there is another reason why the Appellees shouldn’t have been able to use the old filing period, and that is that it would be enforcing a filing period or enforcing an act at a time when the act we believe was unenforceable because it had not been precleared.

This is a problem that Congress has addressed most clearly in the most recent extension of the act because Congress frankly was fed up, no simpler way to say it than that, was fed up with the numerous instances of premature implementation of unprecleared statutes.

The statutory language says unless and until, and that is not what happened here with the filing period.

We believe the District Court made some broad exceptions to Section 5 in this case, that it mischaracterized the Attorney General’s decision.

This is, with all due respect, the third year in a row that this Court has been faced with a case from South Carolina involving much the same situation.

Exceptions to Section 5 and mischaracterizations of the Attorney General’s decision in the first two cases, Flanding v. Dubose and McCain v. Lybrand, this Court reversed the District Court unanimously.

We believe this case is equally clear, and we would ask that the judgment below be reversed.

John Paul Stevens:

May I ask just one question?

Armand Derfner:


John Paul Stevens:

Supposing the Attorney General had cleared the Act 549 in October, would you make the same argument?

Armand Derfner:

Yes, I think I would, Justice Stevens, because while it is true that there have been a number of instances in which filing periods or other situations have gone forward without somebody suing them, I think the law is clear that an act may not be enforced, and what you have is citizens who read the that Voting Rights Act says nothing can be enforced until it is precleared, and if a citizen is entitled to rely on the law, then I think a citizen should not be forced to the choice of going to file at a time when the law has not been precleared.

So if what you are saying is that–

John Paul Stevens:

But, see, presumably if that had happened, the Attorney General would have known the filing date, and he was advised that the procedure was followed that you did follow, that you told them to register, to file under both statutes.

Armand Derfner:

–We don’t know… no, with all due respect, Justice Stevens, there is nothing in the record to show what the Attorney General was advised of in the reconsideration.

And I have looked through the Section 5 file in the Justice Department.

There is nothing to indicate what the Attorney General knew had or hadn’t happened in August.

I have to think that the Attorney General is entitled to rely on the law and so that if anything–

John Paul Stevens:

Let me change my hypothetical.

Supposing he was fully advised, there was adequate advice, and the question was whether he could then approve of an election in November based on filings that had taken place just before the preclearance, and he knew all about what had happened.

Armand Derfner:

–I think he shouldn’t do that.

If he did, then I think what we would have is a statute that is found by the constituted authority of the Attorney General to be nondiscriminatory, but I think we would still have the right to go to the equity court if we filed a lawsuit, as we did here, and say that because there was a procedural violation, we think it is unfair to have gone ahead, and therefore we are entitled to relief.

I am not sure if that answers the question.

Sandra Day O’Connor:

Oh, it does.

Mr. Derfner.

Armand Derfner:

Yes, Justice O’Connor.

Sandra Day O’Connor:

Was evidence submitted before the District Court about the premature removal of the county superintendent?

Armand Derfner:

Justice O’Connor, no.

There was an affidavit, and I believe, the affidavit is in the joint appendix.

Unfortunately, because of the way the opinion of the District Court addressed it and because of the limited record on that issue, I frankly am bound to believe that that case really isn’t appropriate for consideration by this Court at this stage.

We would prefer not to pursue the appeal on that issue.

Sandra Day O’Connor:



I know the SG takes the position that it was precleared, but the position had just been abolished, and there wasn’t any other evidence of some preclearing.

Armand Derfner:

What was precleared was the abolition of the position as of this coming June, and so that it in fact, if the Court were to decide the question, it would be moot as of June.

What there were… there is an affidavit in the record that indicates that in practice the position was effectively abolished before the time that was precleared, but that’s what we didn’t adequately–

Sandra Day O’Connor:

So what is your suggestion that we do?

Armand Derfner:

–My suggestion, frankly, is that we are… I would prefer not to pursue that portion of the appeal at this stage, and if the Court would like, I might even be, if you thought it appropriate, I could dismiss that portion of the appeal.

But we don’t… we think it is inappropriate to pursue it at this stage based on the record that we have.

Thank you.

Armand Derfner:

Thank you very much.

Warren E. Burger:

Mr. Strauss?

David A. Strauss:

Thank you, Mr. Chief Justice, and may it please the Court:

Before I turn to the merits of this case, I would like to say a word about why the resolution of the questions presented can have an important effect on the Attorney General’s ability to carry out his responsibilities under Section 5 of the Voting Rights Act.

The major theme of the Appellees’ argument and the District Court’s opinion, as I read it, is that the Attorney General can be deemed to have precleared changes implicitly, that is to say, he can be deemed to have cleared them even though he was not aware that he was clearing them, and Even though in this case he did not know of the changes and could not possibly have known about the changes because they had not even teen instituted at the time he issued his preclearance.

Now, this argument in one form or another has been made to the Court on several occasions in Allen, in Sheffield County, and jest last term in McCain, and as Mr. Derfner pointed out, it has been repeatedly rejected by the Court.

But the point I would like to emphasize is that the practicalities of administering Section 5 make it very important that as the Attorney General’s regulations require, covered jurisdictions make a clear statement in their submission of exactly what changes they are seeking to have precleared, and that no changes be deemed precleared except on the basis of such a clear submission.

Now, the reason that is important is that as Congress recognized, and as our experience in administering Section 5 has shown, a lot of the threats to equality in voting occur at the level of low visibility nuts and bolts electoral decisions that can only be properly evaluated in a particular local context.

David A. Strauss:

For example, the legislative history of the Voting Rights Act mentions a change from paper ballots to voting machines as the kind of change that would have to be precleared, and in Perkins, an early decision, this Court held that a change in voting places had to be precleared.

So when the Attorney General is presented with a scheme, he doesn’t just decide in the abstract, on the basis of some broad presumption, whether the scheme is discriminatory.

He has to look at whether the particular elements of that scheme, in the particular context, will have a discriminatory purpose and effect.

And in doing so, of course, he has to rely to a large extent on input from people at the local level who are familiar with the scheme.

Now, this whole process just can’t operate unless the Attorney General and people in the local community know exactly what changes they are addressing and what problems they are examining in the local context.

Here the jurisdiction did not specify the particular elements of the scheme that they now claim were precleared, and in fact, the election date, as I said, hadn’t even been set at the time that the Attorney General precleared Act 549.

Now, the jurisdiction… the Appellees, that is, point out that when the Attorney General cleared Act 549, the filing period had taken place.

As Mr. Derfner said, it is net clear whether the Attorney General was even apprised of that, but even assuming he was, the most the Attorney General can be said to have cleared was the use of that August filing period with a November election.

He did not preclear the use of that August filing period with a March special election, which he had no idea was scheduled, and he certainly did not preclear a situation in which local officials could look at the results of the August filing period, see who had filed and who hadn’t, and on the basis of that make their decision about whether to use that filing qualification in a special election.

The minor theme, it seems to me, of the Appellees’ argument in this case is that essentially they did all they could to try to carry out the sudden change in the laws governing school governance in Hampton County, and they oct into a time bind because of confusion at the Attorney General’s end, and that time binds like this, they suggest, will be fairly common in the administration of the Act, and some leeway should be allied the districts to deal with them.

That I think is completely incorrect.

There is no doubt that the Appellees were in a bind, but the reason they got in a bind was that they waited two and a half months after the first enactment of Act 549 before they submitted it at all.

And since the Attorney General must act within sixty days, a delay of two and a half months was what put them in the predicament they found themselves in.

The second contributing factor to the confusion in this case was the fact that the Attorney General initially interposed an objection.

But as Mr. Derfner explained that objection, the interposition of that objection and subsequent withdrawal were not the result of confusion or bureaucratic ineptitude; there was a very serious, very substantial question whether that act was discriminatory, and that was the basis for the initial objection.

I have one final point.

The Section 5 was, of course, very controversial when the Voting Rights Act was first passed because it was thought by some to intrude unreasonably into state and local government affairs, but our experience suggests that now, almost 20 years later, the covered jurisdictions have accommodated themselves to Section 5 and find it to be an acceptable and minimal burden at most.

The Attorney General has issued regulations specifying the form that submissions are to take.

The covered jurisdictions know that all changes are submitted.

They submit them routinely.

The Attorney General acts very promptly, and nearly every change is promptly precleared.

Ambiguities in the scope of the preclearance requirement, such as those that are said to exist here, are quite atypical.

They are very much the exception and not the rule.

But if the Appellees and others… excuse me… are successful in carving out exceptions to this preclearance regime, even though nothing in Section 5 supports the creation of such exceptions, not only would the result be inconsistent with Congress’ intent, but in the long run, this disintegrating erosion of particular exceptions, as Justice Cardoza said, would not ever be of particular benefit to the covered jurisdictions because it would inject elements of uncertainty and confusion and litigation into what has become an essentially stable and mutually acceptable state of affairs under Section 5.

Byron R. White:

You don’t really think it is mutually acceptable, do you?

David A. Strauss:

I think for the most part it is, Justice White.

I think this is something that at least as far as our experience suggests the covered jurisdictions have adjusted to, and they find it to be very little of an interference anymore.

Lewis F. Powell, Jr.:

Mr. Strauss, approximately how many applications for preclearance are now received by the Attorney General per week?

David A. Strauss:

I can’t do the arithmetic that quickly, Justice Powell.

Lewis F. Powell, Jr.:

How many were received last year?

David A. Strauss:

There were 8600 in the first six months of this year.

Lewis F. Powell, Jr.:


David A. Strauss:

That’s right.

Lewis F. Powell, Jr.:

How many is that per working day?

David A. Strauss:

That also, that’s even a harder arithmetical problem, Justice Powell.

0 [Generallaughter.]

Lewis F. Powell, Jr.:

It keeps the Attorney General busy?

David A. Strauss:

Well, not all of these reach the Attorney General, or even the Assistant Attorney General in charge of the Civil Rights Division.

Lewis F. Powell, Jr.:

The statute says the Attorney General.

David A. Strauss:

Well, he has delegated his authority pursuant to the statute to the Assistant Attorney General.

This is… this is–

Lewis F. Powell, Jr.:

Well, may I ask you just one other question?

I haven’t given you time to answer my first yet.

Is the number increasing or decreasing?

David A. Strauss:

–I believe the number is increasing slightly.

Lewis F. Powell, Jr.:

That’s my impression.

David A. Strauss:

Yes, I think that’s right.

There are differences depending on the rate of reapportionment changes in response to the Census and so on.

So I am not sure a secular trend can be identified.

Put to the extent it can, they are increasing.

My understanding of the procedure for handling submissions, Justice Powell, is that if the staff people in the Justice Department in the Voting… in the Section 5 section of the Civil Rights Division, conclude that a change should be cleared, then that change reaches only the head of that section and does not reach the Assistant Attorney General.

But if they are of the view that a change should not be cleared, that an objection should be interposed, then that objection is passed on personally by the Assistant Attorney General, so that his concentration really is on the very small percentage, although not insignificant number, of objections or possible objections.

Warren E. Burger:

Mr. Strauss–

–Have you any idea what percentage of the total are pro forma?

David A. Strauss:

I don’t think any of them are pro forma in the sense that they are given no review.

Warren E. Burger:

Well, I didn’t mean… a lot f things are pro forma which get a review, but that they are in clear compliance, and they go back.

There must be a substantial proportion of them that give no trouble at all at the first level.

David A. Strauss:

My impression is that that is so, Mr. Chief Justice, a substantial proportion.

Harry A. Blackmun:

Mr. Strauss, would you regard 1984 as an atypical year because this is an election year?

David A. Strauss:

No, my impression is that it is not an atypical year.

Harry A. Blackmun:

Do you anticipate 8600 more the first six months of ’85?

David A. Strauss:

We have no reason to think otherwise.

Byron R. White:

So 40 a day?

David A. Strauss:

Is that right?

Byron R. White:

Whatever it is.

How much of a staff is devoted to this, do you know?

David A. Strauss:

No, I don’t know the answer to that.

Thank you.

Warren E. Burger:

Ms. Ashworth?

Treva G. Ashworth:

Mr. Chief Justice, and may it please the Court:

The Voting Rights Act requires a county jurisdiction to submit changes before implementing those changes.

There is no question but that the Act that created election law changes were submitted to the Justice Department for preclearance.

This case arises purely over whether or not the preliminary step of filing, and whether or not an election date which must be postponed because preclearance comes too late to hold it at the time scheduled, must be submitted to the Justice Department for preclearance.

The facts of this case involves two acts which were enacted within three weeks of each other which created substantially different governing bodies for the Hampton County School Board.

The first act, Act 2… 547, excuse me… made the position for County Board of Education elective.

This act was submitted and precleared by the Justice Department.

Subsequently, Act 549 was enacted which abolished this board and devolved its powers and duties upon the second two boards of trustees.

This Act, as has been pointed out, was not submitted for two and a half months.

The reason, I have been told by our office, is because it took that long to gather the information necessary to comply with the requirements as to the information they want submitted with the act.

This act was submitted and initially objected by the Justice Department.

The Justice Department was requested to withdraw their objection, which they did, on November 19.

The problems that are at issue in this case arise purely over the timing of this preclearance of the second act.

The second act provides specific, one-time filings of August 16 to 31st, and required an election to be held on November 2.

As of August 16, there had been no preclearance or objection from the Justice Department.

The county election commission therefore was faced with the implementation of two conflicting acts, the second one, should it become precleared, would abolish the first act and abolish the board established by the first act.

To comply and to create a good faith effort, they allowed filing to begin for both offices.

This filing, pursuant to the second act, admittedly began before preclearance was received.

The District Court found filing to not be a Section 5 violation in that filing did not constitute implementation of an act but merely an administrative or administerial action necessary to accomplish the act’s purpose, and not a change from Section 5.

The Court further found that even should this be a Section 5 change, it was precleared retroactively when the act was precleared.

We would submit that filing is not implementation of an act.

Treva G. Ashworth:

It is purely a preliminary step that will be null and void if the act is initially or subsequently… excuse me… subsequently objected to.

It is an administrative or administerial step so that orderly elections can proceed.

The Justice Department has until recently not objected to these preliminary steps occurring.

Two months before filing began in Hampton County the Justice Department allowed filing to begin and include the county offices pursuant to an act which established filing dates before they precleared this one act.

In Herron v. Koch, a Federal District Court case, the Justice Department, apparently as late as 1981, urged the Court to allow a primary to continue in the hopes that they would be able to preclear the act before the general election.

The Justice Department has also retroactively approved changes that have happened, and this Court has acknowledged the possibility of retroactive approval.

The actual implementation of the act, we would submit, would have been to have held the election before preclearance or in violation of an objection, but that did not happen.

When the Justice Department interposed an objection, an election was not held pursuant to the second act, but the first act, even though that board would, of course, be abolished by the second act should preclearance come.

And seventeen days after the general election, that’s exactly what happened, the first board was abolished by an approval of the second act.

Following preclearance of the act on November 19, the Election Commission set a March election date for an election to be held now pursuant to the now precleared act.

The appellants claim this date should have been precleared.

The District Court found that setting an election date and conducting this election was not a change in South Carolina law but an effort comply with the law and the precleared changes.

Section 5 has been variously interpreted by this Court as having the effect of suspending, freezing, delaying, or postponing the implementation of an act.

Submission of an act to the Justice Department is supposed to be a rapid alternative, a speedy method of enforcement.

Setting an election date in this instance is simply an unfreezing of a postponed election.

The election date is therefore a substitute election for an election that could not be timely held at the time provided for in the act purely because the act was not precleared timely.

If now there is added on an additional requirement of preclearing the date every time approval should come later than the anticipated time for the election, the alternate remedy of a speedy alternative of submission to the Justice Department would never be realized.

Certainly we would submit that the filing is not implementation of an act but merely a preliminary step that is null and void should the act be ultimately objected to.

Likewise, the election date was simply unfrozen and reset following preclearance of this act.

For these reasons, we would urge the District Court be affirmed.

Warren E. Burger:

Do you have anything further, Mr. Derfner or Mr. Strauss?

Armand Derfner:

I have a point or two.

Although I don’t think it is the central issue of the case, the issue came up about what the jurisdiction was doing in the two and a half months, and obviously there is no record of that.

What there is, what there is a file of, although it is not in the record of this case, is the submission file, which is here on five microfiche cards.

It is not in the record.

And frankly, there is nothing in here that would take more than a couple of hours to put together.

Thank you very much.

Warren E. Burger:

Thank you, counsel.

The case is submitted.

The Honorable Court is now adjourned until Monday the 3rd.