Young v. Fordice

PETITIONER:Young
RESPONDENT:Fordice
LOCATION:Arkansas State Capitol

DOCKET NO.: 95-2031
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT:

CITATION: 520 US 273 (1997)
ARGUED: Jan 06, 1997
DECIDED: Mar 31, 1997

ADVOCATES:
Brenda Wright – on behalf of the Appellants
Malcolm L. Stewart – for U.S. as amicus curiae, by special leave of the court
Malcolm L. Stewart – on behalf of the United States, as amicus curiae, supporting the Appellants
Robert E. Sanders – on behalf of the Appellees

Facts of the case

In 1995, Mississippi attempted to simplify voter registration in accordance with the National Voter Registration Act of 1993 (NVRA). A “Provisional Plan” for registration replaced the “Old System,” mandating that, among other things, driver’s license applications could double as voter registration forms for state and federal elections. As required by the Voting Rights Act of 1965 (VRA), the U.S. Attorney General pre-cleared the Provisional Plan, confirming that it did not discriminate against minority voters. Mississippi abandoned the pre-cleared Provisional Plan in favor of a composite “New System,” which used the Old System for state elections and both the Provisional Plan and Old System for federal elections. Mississippi assumed that the Attorney General’s pre-clearance of the Provisional Plan extended to the New System. Thomas Young, a Mississippi citizen, filed suit against Governor Kirk Fordice, alleging a violation of the VRA. A three-judge District Court ruled in favor of Mississippi.

Question

Did the state of Mississippi violate the Voting Rights Act of 1965 by implementing a new voter registration policy, the “New System,” without explicit approval from the U.S. Attorney General?

William H. Rehnquist:

We’ll hear argument now in Number 95-2031, Thomas Young v. Kirk Fordice.

Ms. Wright.

Brenda Wright:

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

This case arises because the State of Mississippi, since early 1995, has been conducting voter registration under procedures that have not been submitted for preclearance to the United States Attorney General or to the D.C. District Court, as required by section 5 of the Voting Rights Act.

Because the section 5 preclearance requirement is so critical in protecting the right to vote in States such as Mississippi, Congress expressly provided in the National Voter Registration Act of 1993, the NVRA, that States must comply with the Voting Rights Act in implementing the NVRA.

Now, the procedures that Mississippi ultimately decided upon in implementing the NVRA established a twotier or dual system under which citizens who register under the provisions of the NVRA must also register separately to be able to vote in State elections, and a plan that implements the NVRA through that type of dual system reflects a change from the voter registration system that Mississippi had in effect prior to 19–

Sandra Day O’Connor:

Well, may I ask you a question right here about that?

Suppose from the outset Mississippi had said we’re not going to change our State and local registration system from what it’s been.

We’re going to keep it, but here are the changes we’re offering to implement for Federal election purposes the NVRA.

Could the Department of Justice refuse to preclear such a scheme if Mississippi kept in place its State local registration scheme and had a proposal that met the statutory requirements for the NVRA?

Brenda Wright:

–Yes, it could Your Honor.

If the procedures that the State adopted were found by the Attorney General or the D.C. District Court to be discriminatory in purpose or effect, that objection could be made, and–

Sandra Day O’Connor:

Well, even in the face of the fact that the NVRA requirements expressly state that they govern only Federal elections?

Brenda Wright:

–Well, Your Honor, in this case–

Sandra Day O’Connor:

There seems to be some indication in the statute itself that it never… Congress never purported to require a change in requirements for State and local elections.

Brenda Wright:

–It doesn’t require that, that is true.

It leaves that decision up to the States, but–

Sandra Day O’Connor:

But you think that the Attorney General can make that a condition of any approval?

Brenda Wright:

–Well, it depends in part upon the State’s specific history and the practices it had.

Sandra Day O’Connor:

In any section 5 State you think the Attorney General can insist on that?

Brenda Wright:

Mississippi had a unitary system by statute at the time the NVRA came into effect.

Sandra Day O’Connor:

Yes.

Brenda Wright:

And we contend that the implementation of a dual system reflects a change from that unitary system.

Antonin Scalia:

It still does have the same unitary system in place.

You can still register for both Federal and State elections the same way you could before the NVRA provisions went in.

Brenda Wright:

But you have a–

Antonin Scalia:

Now you have an additional option.

If you want to use the easier method you can register for Federal elections, but as far as what a citizen of Mississippi can do by way of registering for both State and Federal, it is exactly the same as it was before, isn’t it?

Brenda Wright:

–Well, our contention is this.

Antonin Scalia:

Except for the false start.

Antonin Scalia:

Let’s leave the false start out of the mix for the moment.

Brenda Wright:

Leaving the false start out of it, you now have a system under which there is a class of citizens that once registered is not permitted to vote in State and local elections, and that is not a unitary system under any meaningful sense of the term.

Antonin Scalia:

By reason of the special grace provided by the Federal statute, but the same system that existed for multiple registration prior to the NVRA is still in place in Mississippi.

Brenda Wright:

There was no system of multiple registration, though, because one registration made you eligible for all purposes.

Anthony M. Kennedy:

Eligible… well–

Brenda Wright:

And the real purpose of our lawsuit here is to say that whatever choices Mississippi made in implementing the NVRA, whatever plan it decided to adopt ultimately had to be submitted for preclearance so that the Attorney General could review exactly how that procedure was going to be implemented, and there are many, many discretionary choices that a State makes in deciding to set up a system either on a dual basis or, even if it’s on a dual basis, there are different ways and different choices that a State makes that will have a major impact on whether the voters–

Anthony M. Kennedy:

–Could you give me a few illustrations of that?

One is which State offices will be used for registration.

I take it that’s one?

Brenda Wright:

–That’s right, and also, for example, the registration forms themselves.

In the, the NVRA forms that are currently in effect and are being handed out at the State agencies do not say anything about limited registration.

You have forms, for example, that are being handed out at the public assistance agencies that are entitled, Mississippi Voter Registration Application, and nothing on the form tells you that when you fill that out you’re only going to be eligible to vote in State and local elections, so it was vital for the Attorney General–

Anthony M. Kennedy:

In Federal?

You mean only vote in Federal elections.

Brenda Wright:

–In Federal… that you would only be able to vote in Federal elections, that’s correct, and so it was vital, because of the risk of confusion, and the risk of people believing that they may already be registered for all purposes when in fact they are not that the Attorney General reviewed these procedures, each and every one of them.

Sandra Day O’Connor:

Well, I can understand that, but to ask the further question whether the Attorney General, assuming the forms make it clear that it’s only for registration for Federal elections as the law indeed says is necessary, whether it can go beyond that and say, moreover, State, you have to make this a unitary system now and follow the Federal plan for all, even State and local.

Brenda Wright:

But if there were evidence before the D.C. District Court or the Attorney General that a dual system had been reinstated for the very purpose of discriminating against minority citizens, certainly–

Sandra Day O’Connor:

Not reinstated, kept, unchanged from the past, but following the new law for Federal elections.

Brenda Wright:

–But Your Honor, the cases such as City of Lockhart v. United States recognize that even when a State maintains certain procedures but changes other aspects of its registration system, the procedures that are unchanged themselves may be subject to section 5 review.

Sandra Day O’Connor:

It just seems so counterintuitive in the face of language in the statute whereby Congress expresses the intent not to require a change for State and local registration purposes.

That’s the troublesome part of this case for me, anyway.

Brenda Wright:

But cases such as City of Lockhart recognize… in that case the numbered post requirement had not been changed at all.

William H. Rehnquist:

That wasn’t in connection with the Federal Voter Registration Act.

Brenda Wright:

No, it was not, but it was a situation where one provision that called for numbered post remained unchanged, and the Court held that it nevertheless was a change when the city applied that numbered post requirement to an election system where additional seats had been added, because the Court held that you have to examine a change in the context of the entire election system.

Antonin Scalia:

Ms. Wright, why–

–That’s fair enough when it’s voluntary on the part of the State.

Where one change is made voluntarily on the part of the State you can say well, the whole thing gets sucked in, but this is a unique situation in which a certain change is imposed upon the State by the Federal Government.

Now, it’s one thing to say that the way in which you implement that mandatory change must be cleared with the Attorney General.

That’s one thing.

But it’s quite something else to say that because the Federal Government has mandated this change all of your current system which you have not changed at all has to be resubmitted for clearance to the Attorney General.

Brenda Wright:

But Your Honor, the Attorney General is entitled to examine the effect that this particular method of implementation will have on voting and registration in State and local elections.

Antonin Scalia:

Whatever its effect is is the fault of the Federal Government, so long as the procedures for implementing the Federal scheme themselves are fair.

Brenda Wright:

Well–

Antonin Scalia:

Now, it may discourage people from voting in State elections who find it easier to register for Federal only, but that’s the Congress’ fault for applying this new system only to Federal elections.

Brenda Wright:

–We argue, Your Honor, that because of the decision in Allen v. State Board of Elections it’s clear that even if a change, a particular change is mandated by the Voting Rights Act itself, it is subject to preclearance requirements.

William H. Rehnquist:

Your argument goes considerably further than Allen, which itself went to me to the extreme of construing this statute.

May I ask, Ms. Wright, I just want to be sure, I didn’t think the questions that Justice O’Connor put to you is presented by this case.

We aren’t concerned with whether or not the Attorney General would have had a duty to preclear if there had been a submission, are we?

Brenda Wright:

No.

That question will arise when and if the procedures–

John Paul Stevens:

Yes.

We don’t… for all we know the Attorney General would just routinely preclear it.

Brenda Wright:

–Well–

John Paul Stevens:

Or perhaps she’d act wrongfully if she refused to, but that’s not before us, is it?

Brenda Wright:

–The question of actual discriminatory intent or effect is not before this Court and it was not before the court below, and that is why we contend that the Court exceeded its jurisdiction.

John Paul Stevens:

Is it not true that even if it’s perfectly clear that the Attorney General would have had a duty to preclear the existing system, you would nevertheless prevail?

Brenda Wright:

Oh, yes, Your Honor.

Yes.

I’m simply–

Stephen G. Breyer:

Then are you actually asking as well to submit all the changes that weren’t made?

I thought what you were asking for is that what has to be submitted, the manner in which they carried out the changes required by the voter registration, the motor voter act, and that would be judged against a background in which they didn’t change the State officials.

But I don’t understand… I agree, I don’t understand why they’d have to submit the things they didn’t change.

I suppose they’d have to submit the things they did change, and then you would argue that those changes are unlawful because of what they didn’t–

Brenda Wright:

–That’s right.

We contend that the procedures establishing a dual system, all of them, need to be submitted for preclearance.

Ruth Bader Ginsburg:

–But isn’t all of that premature?

I thought the simple point is, there’s been a change.

Every change has to be precleared, period.

Now, the Attorney General may agree with your point of view or disagree.

We don’t know that at this point.

Brenda Wright:

That is correct.

Ruth Bader Ginsburg:

All we know is that we have a change prompted by the Federal law.

Everybody concedes that it is a change that needs to be precleared.

Why should we look at anything more than that in this case?

Brenda Wright:

Well, we certainly agree that there is no necessity of determining what the ultimate outcome of the–

Ruth Bader Ginsburg:

Or even what constitutes a satisfactory submission.

That’s for the Attorney General to decide in the first instance.

Brenda Wright:

–Yes.

Sandra Day O’Connor:

But it might be important to other members of this Court to know just how far the Attorney General’s position goes.

It certainly is important to me.

Brenda Wright:

Yes, Your Honor.

Anthony M. Kennedy:

And in that respect, may I rephrase Justice O’Connor’s question?

Brenda Wright:

Yes.

Anthony M. Kennedy:

It isn’t your position that as a practical matter… as a practical matter, the State must ask for preclearance of its former voting procedures.

Brenda Wright:

It need not Gubmit those procedures, but we do believe that if the State is going to change from its current statutory policy of a unitary system it does need to obtain preclearance for that alteration of its important policy, and that would be part of–

Anthony M. Kennedy:

So you’re saying that as a practical matter the State cannot leave in place its previous precleared procedures without further amendment and alteration of those procedures.

Brenda Wright:

–Because it’s current… but that’s only because its current system contemplates a unitary system of registration, and I do want to emphasize the very narrow character of the inquiry that we have here.

The only inquiry is whether there has been a change and whether, if there has been a change, that change has been submitted to the Attorney General.

William H. Rehnquist:

Even though the change was brought about by the Federal Government.

Brenda Wright:

That’s right.

William H. Rehnquist:

And not by the State.

Brenda Wright:

That’s right.

William H. Rehnquist:

None of our cases support that, do they?

Brenda Wright:

I believe Allen v. State Board of Elections and McDaniel v.–

William H. Rehnquist:

Was that change brought about by the Federal Government?

Brenda Wright:

–Yes.

It was an implementation of the Voting Rights Act.

Virginia was implementing the Voting Rights Act by providing assistance to illiterate voters, and the Allen case held that the changes providing that there was… that that assistance had to be given was subject to the preclearance requirement of section 5, and the reason for that is that–

Antonin Scalia:

But that’s not what we’re–

–No.

Antonin Scalia:

–we’re arguing about here.

It’s not whether the procedures for implementing the Federal act have to be cleared, but whether there gets sucked along with that the procedures that the State has had in place for many years for registering under the State laws.

Brenda Wright:

–Well, we contend that–

Antonin Scalia:

And that was not involved in any earlier case.

Brenda Wright:

–That comes into play, though, because of Mississippi’s clear statutory policy of having a unitary registration system.

Antonin Scalia:

Well, you pick on that and you say that that has been changed.

Well, I mean, yes you can say that that’s been changed.

You could also say, however, if they had changed it to a unitary, or had continued a unitary, you could also say there has been a change because it used to be that you had to, in order to register for the State, do things beyond what the motor vehicle registration act requires.

Brenda Wright:

Well, we do argue–

Antonin Scalia:

I mean, that’s a loaded question.

You say they… you focus on this unitary as though that’s the center of the universe.

I don’t know why–

Brenda Wright:

–What we argue, Your Honor, is that the State has been highly selective in deciding which provisions of existing Mississippi law it must continue to comply with and which it cannot change.

We believe that the important State policy of a unitary registration system is clearly far greater in importance to the State than the provision of an attesting witness requirement in a mail-in form, which is really the only provision here that Mississippi has identified as a bar to implementing the registration–

Antonin Scalia:

–I don’t agree–

Brenda Wright:

–on a unitary basis.

Antonin Scalia:

–If you ask me what would constitute the least change that Mississippi could make in order to comply with the Federal law, I would say it is precisely what Mississippi did here, leave its current registration procedures entirely in place.

If you want to register for State and Federal localities at the same time, you just follow what Mississippi has had in place for years, and add to that what the Federal Government has required to be added: motor vehicle registration for Federal elections.

That seems to me the minimal change possible from the State system.

Brenda Wright:

We would argue from the perspective of the voters it certainly is not the least change possible, because if you think about election day the registrars are now required to keep two sets of poll books, one for NVRA registrants only allowed to vote in Federal elections, and one for other registrants.

Presumably if you go into the voting booth you have to get a separate ballot, because if there are both Federal and State elections on the ballot you can’t be permitted to vote that ballot, and so these types of changes, these types of–

Antonin Scalia:

No problem.

Just register under the State procedures and you don’t have to worry about that.

Brenda Wright:

–But Your Honor–

Antonin Scalia:

Just the way it was before.

Brenda Wright:

–But because the NVRA does require that the States administer these procedures, the State, we contend, has an obligation to identify exactly how it wants to go about implementing the NVRA and obtain preclearance for all of those decisions specifically spelled out in a proceeding either before the Attorney General of the United States or the D.C. District Court, and that is what has not happened here.

I’d like to reserve the remainder of my time.

David H. Souter:

Well, may I ask you a fact question?

I thought it had happened in the sense that the procedures that were outlined in the original submission for the application of the new Federal act are, in fact, the ones that are being followed.

I thought the contention was that the changes in the old State procedures which were outlined in that submission were not followed.

David H. Souter:

Am I wrong as a matter of fact?

Brenda Wright:

Well, the… yes.

We are arguing that the system that was submitted to the Attorney General by the Secretary of State in December of 1994 was a system that contemplated a unitary–

David H. Souter:

Oh, I realize that.

Brenda Wright:

–set of procedures.

David H. Souter:

That if you take the totality of the submission, that totality in fact has not been followed.

Brenda Wright:

That’s right.

David H. Souter:

The provisions of that totality have not been followed.

Brenda Wright:

That’s right.

David H. Souter:

But with respect to the provisions for the implementation of the Federal act, have they been followed or not?

Brenda Wright:

We believe that Mississippi is following the provisions as they respect Federal elections.

David H. Souter:

Okay, so the only fact difference, then, is it didn’t make changes to conform its old State system to the new procedures which it, which everybody agrees it’s following for the limited Federal registration.

Brenda Wright:

But there are further differences because of… by necessity, when you implement a dual system you have to make changes in your practices to take into account the fact that you now have two separate sets of registration requirements that may result in confusion for voters.

So we say that as a package the decision to implement these procedures on a Federal-election-only basis really need to be submitted and reviewed on that basis.

Ruth Bader Ginsburg:

When… well, I just wanted to ask about your benchmark view.

If the interim January to February 10th, if that was not the system that Mississippi ever lawfully adopted, then why shouldn’t our only benchmark be what was before the Federal act became effective?

Brenda Wright:

Well, we contend that it’s not necessary to determine the status of those early 1995 procedures in order to dispose of this case, but we do contend that Mississippi was actually implementing a unitary NVRA plan, and that it could not make a change from that system that was in effect in the early part of 1995.

Ruth Bader Ginsburg:

From an unlawful system, they just couldn’t treat that as a nullity and say, we had a pre-January 1 system and a lawful post-January 1 system?

Brenda Wright:

We contend no, because you simply cannot treat as a nullity the registration of thousands of voters who registered under the assumption that they were eligible for all elections.

That would be–

Ruth Bader Ginsburg:

Why not just give them notice?

Just give them notice that their, what they registered for counts only for the Federal elections?

Brenda Wright:

–Preclearance would have to be obtained for a change that makes such a dramatic difference in the registration status of so many voters.

That’s part of our contention.

Antonin Scalia:

Ms. Wright, as I understood your submission, it is not that the whole State was acting de facto this way, although unlawfully.

It’s that only a certain number of counties were.

I don’t know how you can possibly leap to the position that the entire State of Mississippi, which is what is at issue here, that the entire State of Mississippi was de facto operating under a unitary system.

Brenda Wright:

Well, we contend that even though only some of the circuit clerks put voters actually on the rolls for all purposes, the unitary NVRA plan was actually being implemented on a State-wide basis, because in each of these counties when you went into the agencies the forms that you were being given and the procedures that were being followed were to the knowledge of the voters procedures registering you for all elections, and that was going on in every county regardless of whether the circuit clerks immediately put you on the rolls for all purposes, and that’s how we say there was in fact State-wide implementation here.

I’d like to reserve.

William H. Rehnquist:

Very well, Ms. Wright.

William H. Rehnquist:

Mr. Stewart.

Malcolm L. Stewart:

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

The point I would like to stress from the outset is that the potential discriminatory effects of Mississippi’s current system with which the Department of Justice is most concerned are not in any sense the product of Federal compulsion.

That is, the NVRA does require the States to take certain steps, but it leaves the States with substantial discretion in other respects not only as to the initial decision as to whether NVRA registrants will be entitled to vote in State and local elections, but also with respect to subsidiary decisions regarding the forms that will be used, the procedures by which people will be registered.

And I want to emphasize as well that we think we are not being fanciful or alarmist in suggesting there may be a substantial problem with telling thousands of people in Mississippi that they are registered to vote in Mississippi when in fact they are not eligible to cast ballots for any Mississippi official.

The question of what forms are being used, what process of notification is given to NVRA registrants, is not simply a technicality.

It really goes… potentially at least goes to the heart of whether Mississippi’s current system is–

Sandra Day O’Connor:

Well, even if we agree that the State’s proposals to administratively and by State law implement the requirements of the new Federal act have to be submitted to the Attorney General for preclearance, do you also take the position espoused by Ms. Wright that the Attorney General may require the State to go to a… the same system for its State and local voter requirements?

Malcolm L. Stewart:

–If the State had made clear from the outset that it intended to implement the NVRA on a Federal election-only basis, it would then have submitted the procedures–

Sandra Day O’Connor:

Well, the procedures it did submit to the Attorney General contained within them a proposal for changing State law to go to a system that would be the same for Federal as well as State, but I thought the Attorney General’s own requirements and that of Federal law in this area did not permit the Attorney General to act on something on the basis of laws that had not been passed.

Malcolm L. Stewart:

–That’s correct.

The Attorney General did not–

Sandra Day O’Connor:

So the Attorney General, instead of acting on this, should have just said we can’t act on it at this stage.

Malcolm L. Stewart:

–Well, the submission–

Sandra Day O’Connor:

Shouldn’t it?

Malcolm L. Stewart:

–No, I don’t believe so.

Sandra Day O’Connor:

No?

Malcolm L. Stewart:

Well–

Sandra Day O’Connor:

That’s what the Federal law requires.

They don’t have to do that?

Malcolm L. Stewart:

–The Attorney General certainly could not appropriately have purported to preclear legislation that had not been passed.

Sandra Day O’Connor:

But that’s what it purported to do.

Malcolm L. Stewart:

With respect, Your Honor, I don’t believe that’s the case.

The–

Sandra Day O’Connor:

I was surprised it dealt with it at all.

I would think that the normal thing would be to send it back to the State and say, this law hasn’t passed.

We’re not in a position to act on it until it does.

Malcolm L. Stewart:

–But the submission did include the draft legislation, but it also included procedures for implementing the NVRA beginning on January 1, 1995, and in our view the unmistakable tenor of the whole submission was that those procedures presupposed a regime in which NVRA registrants would be eligible for State and local elections as well.

Antonin Scalia:

Well, of course it did, but it also quite clearly and on its very face presupposed a new statute that hadn’t been passed.

Malcolm L. Stewart:

Again, with respect, the statute was included, but the submissions did not make clear that passage of a statute was essential to treatment of NVRA registrations.

William H. Rehnquist:

Well, you’re not contending that the Attorney General wouldn’t have known from the submission that the statute had not, in fact, been passed?

Malcolm L. Stewart:

We knew from the submission that the statute had not been passed.

We didn’t know from the submission that passage of the statute was a prerequisite to treatment of NVRA registrants as eligible to vote in State and local elections.

Antonin Scalia:

How could that not be–

Malcolm L. Stewart:

Well–

Antonin Scalia:

–when you had State law that said this is how you register for State–

Malcolm L. Stewart:

–Well, one of the respects in which this record is fairly hazy is–

Antonin Scalia:

–You don’t have to be a very good lawyer to figure that out.

You have State law that says, this is how you register for State elections.

Malcolm L. Stewart:

–In fact, Mississippi has never identified with any clarity the precise State statute which is supposed to bar the treatment of NVRA registrants as eligible to vote in State and local elections.

There is no State statute which says, voter registration applications–

Antonin Scalia:

You don’t need one that bars it.

You need one that authorizes it.

People don’t get the ability to vote unless there’s a law that says they don’t have it.

They need a law that says they do have it, and the only law in effect is one that said this is how you get to vote in Mississippi, and then you get this submission from Mississippi which says, we are now going to let people vote in State elections on the basis of this new Federal law, and you see that in the Mississippi statutes… you get this from the Secretary of State, right?

Malcolm L. Stewart:

–That’s correct.

Antonin Scalia:

And you see the Mississippi statute doesn’t permit this.

I cannot imagine that you people at the Justice Department did not know… did not know that this thing required legislation which had not yet been passed.

Malcolm L. Stewart:

No, what we knew was that the State had begun to adopt the plan outlined in the submission as of January 1, 1995, and again, this is not a situation in which the State could decide at a later date what elections these people were registered for.

It’s essential that a person who comes in to register be told what elections he is eligible to vote in, so it wouldn’t have been appropriate at all for the State to tell people you’re eligible to vote in all elections and then decide at a later date, after the fate of the legislation was determined, whether in fact that would be the case.

To return for a second to Justice O’Connor’s question, I think if Mississippi had told us from the outset we plan to do this for Federal elections only, the Attorney General in deciding whether to issue preclearance would have had to decide first whether there was discriminatory purpose.

But leaving that aside, the Attorney General would have had to determine whether the overall system contemplated would leave minority voters in a worse position than they were before the passage of the NVRA, and in making that determination, the Attorney General could properly consider the likely ancillary effects on voting in State and local elections.

Sandra Day O’Connor:

Well, that certainly isn’t clear from the language of the act that Congress passed, which seemed to leave in place, if States chose, their existing system for State and local elections.

I thought that was pretty clear from the face of the law.

Malcolm L. Stewart:

Again, we’re not… we acknowledge that the NVRA itself does not require these procedures to be used in State and local elections, and we’re not arguing that the Attorney General has some blanket authority to require that as a matter of her own discretion.

What we’re saying–

Sandra Day O’Connor:

Well, I thought that was what Ms. Wright argued, and I thought you were arguing in support of her.

Malcolm L. Stewart:

–I don’t understand that to be Ms. Wright’s position, and it certainly isn’t ours.

I think our position is that in determining whether minorities will be worse off after Mississippi implements the NVRA, the Attorney General could consider not only the likely advantages to minority voters of expedited registration procedures in Federal elections, she could also consider whether the methods by which Mississippi was registering NVRA voters would be likely to confuse them and thereby dissuade them from–

Anthony M. Kennedy:

So there is a significant possibility that Mississippi cannot implement the motor voter… MRV statute without also changing precleared, preexisting procedures for elections, for State election registration?

Malcolm L. Stewart:

–I would say a theoretical possibility, but I think Mississippi–

Anthony M. Kennedy:

I think it’s a significant possibility based upon the comment that you’ve… and the explanation you’ve just given us.

Malcolm L. Stewart:

–Well, at least our primary concern at this point is that the method by which Mississippi is implementing the NVRA creates a particular risk that NVRA registrants will be dissuaded from registering separately for State and local elections, because the forms on their face give the message that the registrant is eligible to vote in all elections.

David H. Souter:

Well, the way to cure that is simply to deny the preclearance with respect to the simple implementation of the Federal act.

That doesn’t require you to go any further than that.

Malcolm L. Stewart:

Again, all we want at this–

David H. Souter:

Isn’t that so?

Malcolm L. Stewart:

–Yes, I think that is so.

All we want at this point is the opportunity to view the submission and to determine whether there are any likely discriminatory consequences, and with respect to the consequence that I have just outlined, the possibility for confusion based upon the forms and procedures, it certainly would be a sufficient response for Mississippi to reformulate those forms and procedures so that the likelihood of confusion is diminished or eliminated.

Anthony M. Kennedy:

What would be the position of the State of Mississippi if you failed to preclear its implementation of the new Federal statute?

Malcolm L. Stewart:

Well, part of this–

Anthony M. Kennedy:

Could it go, could elections at the State and local level proceed but not at the Federal level?

Malcolm L. Stewart:

–Well, I think part of this depends upon the benchmark that would be used.

If, as we’ve contended, the State initially implemented a unitary system of NVRA registration and then sought to change that system, the appropriate remedy pending submission of a new package of materials would be that NVRA registrants would be eligible to vote in all elections until a change had been submitted and precleared.

This Court has recognized often that the question of whether unlawful elections should be set aside is distinct from the question of whether there has been a violation of section 5, so we certainly don’t think that the consequence of requiring a new preclearance submission would necessarily or even probably be that any elections would be set aside.

Ruth Bader Ginsburg:

Is it your position that in a picture like this the State would be required to preclear twice?

Suppose Mississippi took the position, we haven’t yet gotten this legislation.

We don’t know if we will.

Could they have let January 1 come and go without filing anything on an interim basis and then waited till they found out what happened with the legislation?

Malcolm L. Stewart:

They could have as far as section 5 is concerned but not as far as the… well, as far as the NVRA is concerned, they would have been required to implement the statute for Federal elections because of the effective date of the NVRA itself–

Ruth Bader Ginsburg:

Yes.

Malcolm L. Stewart:

–and section 5 would have precluded their doing so without preclearance.

William H. Rehnquist:

Thank you, Mr. Stewart.

Mr. Sanders, we’ll hear from you.

Robert E. Sanders:

Thank you, Your Honor.

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

I would like to begin by responding to Justice O’Connor’s first question, that being whether base implementation by a State of the requirements of the National Voter Registration Act are subject to section 5 preclearance, and I think the answer to that question clearly is no.

When the Congress mandates that a State implement the matters set forth in the National Voter Registration Act, the State has no discretion about whether to do that.

If the Attorney General is asserting a right of review, that means necessarily that the Attorney General is asserting a right to object to Mississippi’s implementation of the congressional mandate.

John Paul Stevens:

Does that mean that there were no discretionary matters that the State could decide in implementing the motor vehicle registration act?

Robert E. Sanders:

No, Your Honor.

There are a couple of areas where the State has a very small amount of discretion.

John Paul Stevens:

Well, with respect to those, was there a duty to preclear?

Robert E. Sanders:

Possibly.

The–

John Paul Stevens:

Well, yes or no?

Robert E. Sanders:

–Well… all right, I’ll say yes if the amount of discretion is considered to be significant.

The NVRA–

John Paul Stevens:

Well, isn’t the standard just whether there’s a change?

Robert E. Sanders:

–Well, to the extent that the State of Mississippi has discretion in implementing the mandates of the NVRA, arguably those discretionary–

John Paul Stevens:

Should have been precleared.

Robert E. Sanders:

–Are subject to preclearance.

John Paul Stevens:

And they were not.

Robert E. Sanders:

Oh, yes they were, Your Honor, I’m sorry.

The–

John Paul Stevens:

Well, let me ask you, is it your position that there was no duty to preclear, or that you did get preclearance?

Robert E. Sanders:

–Well, on parts of it there was no duty.

On those parts that are strictly mandatory… for instance, putting NVRA forms at driver’s license stations… there’s no discretion about that.

The Congress says, thou shalt do that, and we can’t, we can’t… we have no discretion there, and the Attorney General may not veto that part or object under the section 5 device.

There are… the Congress also said that you shall put certain of these NVRA forms at certain agencies that provide public assistance.

It left it up to the States to determine which agencies fit that description.

John Paul Stevens:

All right.

Robert E. Sanders:

We made a designation of five or six agencies, and arguably–

John Paul Stevens:

Was not that designation something you had to preclear?

Robert E. Sanders:

–Yes, sir, and it was precleared.

That was part of–

Ruth Bader Ginsburg:

But it wasn’t under your view.

If I understood your brief, you said that a certain State official did a rogue act, that the December 20 submission was without any authority, that Ms. Slaughter-Harvey acted on her own without authority, without anybody in Mississippi approving that, so if one takes you… takes that characterization of it, it is as though the December 20 submission never happened.

It was totally unauthorized.

It was not Mississippi’s submission, and if that’s the case, then mustn’t there be a legitimate preclearance application?

Robert E. Sanders:

–Well, we characterize her actions as both erroneous and partly as a rogue official.

The reference to a rogue official was more to… for illustration.

Her action was erroneous primarily to the extent that she purported to submit material that required legislative change–

Ruth Bader Ginsburg:

But I thought you said nobody knew of her December 20 letter.

Robert E. Sanders:

–No one did.

Under section 5 of the Voting Rights Act any responsible State official may make a submission.

To the extent that she submitted things that were administratively changed, as Justice Stevens asked about, those were legitimate submissions.

Anything beyond that, anything that she purported to submit that required legislative preclear… or legislative change, simply were not.

They were–

Sandra Day O’Connor:

Well, I thought they indicated on their face that these are legislative proposals that will be submitted but they haven’t been adopted.

Robert E. Sanders:

–That’s correct, Your Honor.

Sandra Day O’Connor:

I mean, that was clear on the face.

But do you take the position that they… the Attorney General can’t preclear the contents of the materials that are handed to people to register for Federal elections–

Robert E. Sanders:

Well–

Sandra Day O’Connor:

–so that it is clear to those people that they will be registered only for Federal purposes and not State?

Robert E. Sanders:

–All right, let me make clear–

Sandra Day O’Connor:

I mean, I would think that would be a natural part–

Robert E. Sanders:

–Let me make clear–

Sandra Day O’Connor:

–of the preclearance part.

Robert E. Sanders:

–Those purported changes that required legislative action, we submit, were not properly precleared.

They could not submitted for preclearance.

Those actions–

Sandra Day O’Connor:

I’m talking about the materials submitted to the people who come in to get a driver’s license, and the language used to explain to the voters in Mississippi the Mississippi position, that you will be registered for Federal elections only.

Robert E. Sanders:

–I understand.

Sandra Day O’Connor:

And to register for the State you have to do A, B, C, and D.

Robert E. Sanders:

Yes, such as the–

Sandra Day O’Connor:

Now, presumably the Attorney General could take objection to Mississippi’s apparent failure to advise voters of the situation.

Robert E. Sanders:

–All right.

The NVRA form itself, the State has some discretion, arguably, about what to include in that.

The Federal Election Commission has the responsibility of setting forth which elements must be contained in the NVRA form.

Robert E. Sanders:

The State of Mississippi may incorporate into that form its own voter disqualifications, such as conviction of certain crimes and so forth.

The State of Mississippi did that.

That form was submitted to the Attorney General and the Attorney General precleared that form on February 1.

Antonin Scalia:

He precleared it, or purported to preclear it… she… as part of a package which included… which included… in a way, you two sides deserve each other.

[Laughter]

The Attorney General purports to preclear something that was never submitted, and you purport to have gotten precleared something that was never submitted.

It was submitted as a whole package.

Robert E. Sanders:

Yes, Your Honor.

That’s what the plaintiffs refer to as the context argument, that the context of the submission was different than the context of the implementation of that which was submitted.

There is a very important thing to keep in mind.

Section 5 has… prescribes a 60-day period for reviewing submissions.

Section 5 also, by the express language, says that if the Attorney General within that 60-day period decides not to object within that 60-day period, but that the Attorney General receives additional information within that 60-day period, the Attorney General may lodge a conditional objection pending an opportunity to review that additional material.

Now, the 60-day period began here on December 20, 1994 and it ended on February 18, 1995.

The Attorney… or, the Department of Justice on February 16, 1995, 2 days before that 60-day period ended, wrote a letter setting forth that they believed that what we were doing was instituting a dual registration system, but the Attorney General never did anything to diminish the preclearance that she had granted on February 1, 1995.

It cannot be said that on February 16 or February 18, also the day that the 60-day period ended, it cannot be said that the Attorney General at that point did not understand fully the context of what she precleared on February 1.

David H. Souter:

But it can be said, can’t it, that what the Attorney General precleared was what you submitted.

Robert E. Sanders:

That’s right.

David H. Souter:

And what you submitted does not conform to the law or practice of Mississippi today.

That’s true, isn’t it?

Robert E. Sanders:

Yes.

To the extent that the submission included purported changes, or proposed changes of statutory law, you’re correct.

Anthony M. Kennedy:

All right.

Now–

–And is it further true that you concede… I interpret your remarks this way.

Correct me if I’m wrong.

Is it further true that you do concede that Mississippi’s discretionary acts in implementing NVRA must be precleared?

Robert E. Sanders:

And were precleared, yes.

Anthony M. Kennedy:

Just that they–

Robert E. Sanders:

Oh, yes.

Anthony M. Kennedy:

–That they must be precleared, must be subject to preclearance.

Robert E. Sanders:

To the extent that they represent significant discretion, they must be precleared.

It’s like McDaniel v. Sanchez, when the Court said that court imposed election remedies need not be precleared unless there is significant voter jurisdiction input into that plan.

It makes that distinction, and I would say the same thing applies here.

To the extent that there is significant discretion in Mississippi’s input, then it does require preclearance.

I’m not certain, however, that the very limited things that we do when we designate which agencies fit the description of public assistance agencies, I’m not sure that that is enough Mississippi input to require those things to be submitted for preclearance, but to the extent that that is enough, they were submitted and they were precleared.

Ruth Bader Ginsburg:

Mr. Sanders, wouldn’t the most important thing to preclear, perhaps the only thing once Mississippi decides it’s going to do a different Federal-only registration, is to tell people who come into the motor vehicle bureau in big letters, this will register you for Federal elections only, and such a thing was never precleared because the first submission didn’t suppose there was going to be that system.

Robert E. Sanders:

Well, of course, the National Voter Registration Act doesn’t require that we set forth any such disclaimer or warning.

It simply requires that we put certain forms at certain locations, and that’s what we did.

Stephen G. Breyer:

It also says at each voter registration agency the following services shall be made available: assistance to applicants in completing voter registration forms.

Now, perhaps assistance to applicants would include an explanation of what’s going on.

Robert E. Sanders:

All right.

Yes, Your Honor, I don’t quarrel with that.

The fact is, we are informing people when they come in to register of the status that they will obtain by virtue of that registration, and I don’t think the fact that we now inform people, I don’t think the conveyance of information is a change within section 5 that requires preclearance.

David H. Souter:

Yes, but the means by which you do that, however you are informing them, has never been submitted to the Attorney General and has never been precleared.

Robert E. Sanders:

Yes, Your Honor.

David H. Souter:

Because the premise of your first submission was that you wouldn’t be telling them that, isn’t that correct?

Robert E. Sanders:

Well, it just… the first submission did not contemplate that at all.

David H. Souter:

That’s right, so that the Attorney General neither had before her, nor precleared, whatever means you are using to get this information to the voters.

Robert E. Sanders:

Again–

David H. Souter:

That’s true, isn’t it?

Robert E. Sanders:

–That’s true, yes, sir, but I would just contend that the transmission of information, helping someone understand his or her voting status, is not a change in any event, especially within the meaning of section 5.

I don’t think that if a circuit clerk or the Secretary of State wanted to inform someone of what their voting status was, the names of the persons on the ballot or anything else, I don’t think that that would require–

John Paul Stevens:

Oh, but counsel, the adoption of the form that you use for the voter to fill out and so forth, that certainly was a change, wasn’t it?

It’s a new form.

Robert E. Sanders:

–Well, it’s a new form mandated by the Congress, of course.

John Paul Stevens:

Right, but was the language… all the language in the form mandated by Congress?

Robert E. Sanders:

Virtually all of it.

John Paul Stevens:

Virtually.

Robert E. Sanders:

The FEC requires, or allows us to incorporate into the form those… as I said, those things that would disqualify–

John Paul Stevens:

But isn’t it fairly clear that if at the time of your submission you had realized what the ultimate outcome would have been, you would have put on that form, this is good only for Federal elections?

Robert E. Sanders:

–Well, of course, if the Attorney… if the Mississippi Attorney General’s Office had known at the time that a submission was about to have been made, a lot of things would have been done differently.

The fact is here that the Department of Justice interjected itself into the Mississippi matters.

It pressured–

John Paul Stevens:

Well, they didn’t interject themselves.

Congress passed a statute that requires preclearance when you make changes, and you made some changes.

You had a duty to get preclearance, so you triggered the preclearance process.

Robert E. Sanders:

–Well, I beg to differ, Your Honor.

I believe the Department of Justice triggered this hasty submission.

They called and wrote to a person who is employed with the Secretary of State’s office on several occasions, prompting them to go ahead and submit a preclearance, and frankly I think it was their behavior that caused this false start, as Justice Scalia referred to it as.

It’s not the fact that Mississippi has tried to deceive the Department of Justice by any stretch.

John Paul Stevens:

No, it isn’t that, but it seems to me that we’re off on sort of a tangent about whether they should or should not preclear a unitary system or not, but it seems to me it’s a very simple case.

Even the most modest changes under the motor vehicle… motor voter registration act needed preclearance.

They weren’t precleared.

Robert E. Sanders:

Yes–

John Paul Stevens:

Now, whether they should be precleared is… maybe you’re dead right on that.

They probably should be.

Robert E. Sanders:

–Well, but I contend they were precleared.

The February 1 letter says that they are precleared.

The only thing different is the context, and by February 16, well within the 60-day period to lodge a conditional objection, they ratified the original preclearance.

There… I don’t think there’s any… there can be any meaningful dispute that they understood on February 16–

Ruth Bader Ginsburg:

Mr. Sanders, if there had been no–

–You mean the–

–December 20, then do you agree that there would have had to have been a preclearance of what was agreed upon on February 10 to keep the Mississippi system?

Forget about… there had never been any December 20 submission.

On February 10 the State of Mississippi knows what it’s going to do.

Does that have to be precleared?

Robert E. Sanders:

–No, ma’am, I don’t think it does.

I think the fact… the 60-day period just makes the case stronger, but I think it’s beyond dispute that the Department of Justice knew that those statutory changes, or that the law surrounding voter… Mississippi registration qualification was embodied in State statutes, and that law could not be changed unless those statutes were changed.

Ruth Bader Ginsburg:

I’m not talking about the State registration, just the Federal registration.

Robert E. Sanders:

Okay.

Ruth Bader Ginsburg:

It’s a change.

It’s something new, forced by Federal law, but still it’s a change in the voting practice.

Doesn’t that have to be precleared?

I thought that any change had to be precleared.

Robert E. Sanders:

Well, I think any State-initiated change has to be precleared.

Ruth Bader Ginsburg:

But the State is initiating a form that isn’t dictated in every particular by Congress.

Robert E. Sanders:

Well, it is largely dictated, and is almost exclusively dictated by the Federal Election Commission.

That’s what the NVRA requires the Federal… the FEC to do.

The State of Mississippi has very little input into the construction of that form.

Ruth Bader Ginsburg:

Then you… what your answer to me now seems to me inconsistent with the position that you repeated twice in your brief when you said that the statute requires preclearance of any change, and that arguably–

Robert E. Sanders:

Arguably.

Ruth Bader Ginsburg:

–Yes, but now you’re changing your arguably to no.

Robert E. Sanders:

No, I’m just saying… what I’m saying is, arguably it did.

If it did, we got the preclearance.

Now, if we want to really examine the–

William H. Rehnquist:

You’re not conceding, are you, that the publication of a form is a change in practice or procedure?

Robert E. Sanders:

–No, not one that’s initiated by the State and subject to section 5 preclearance.

No, I’m not.

John Paul Stevens:

So you’re now taking the position the forms did not have to be precleared?

Robert E. Sanders:

No.

My position hasn’t changed.

I just… I didn’t want… I… the fact that they were precleared seemed to me to–

John Paul Stevens:

Yes, but your argument that they were precleared, if I understood you before Justice Ginsburg asked you some other questions, was that the February 16 letter in effect ratified the prior preclearance.

Robert E. Sanders:

–That’s correct.

John Paul Stevens:

That’s surely not a fair reading of that letter, which is asking… which is telling you in so many words there’s been no preclearance.

Robert E. Sanders:

All right.

Well, Your Honor, the Attorney General has promulgated a regulation that carries out this part of the language of section 5… it’s at 28 C.F.R. section 51.23… that expressly gives the Attorney General the authority to lodge a conditional objection.

There’s no way you can read the February 16 letter to lodge a conditional objection–

John Paul Stevens:

It says, a review of this matter indicates that the implementation of this dual voter registration system and purge system has not been submitted for review.

Robert E. Sanders:

–That’s correct, and they suggest that we submit a… make another submission, but they never do anything to diminish the fact that they precleared those agency selections, they precleared the form, their–

John Paul Stevens:

But as part of a general submission that you say was improper, and which was clearly not–

–They were willing to take the bitter with the sweet.

They would approve those provisions as part of a unitary system but might not be willing to approve them as part of a divided system that you want to retain.

Robert E. Sanders:

–Well, my position is in the February 16 letter all they had to do was say, well, if this is not part of a unitary system, then we hereby lodge a conditional objection and we will resolve it later on.

That’s what their own regulation says they have the authority to do, and they do not do it.

Sandra Day O’Connor:

Well, let me ask you a what-if question.

Robert E. Sanders:

All right.

Sandra Day O’Connor:

What if we don’t agree with you and think this whole preclearance bubble… mess… doesn’t amount to anything.

It’s a nullity.

You’re out and they’re out.

Nothing’s precleared.

Now what do you have to do?

Robert E. Sanders:

Well–

Sandra Day O’Connor:

Let’s just suppose that’s what we think.

Robert E. Sanders:

–All right.

I certainly would not have to submit any notion that there has been a change of State law.

Clearly there has not been.

I would not have to submit any of the things that amount to base compliance… or I mean, that amount to implementation of the base requirements of the NVRA.

Again, at most I would have to submit those matters… the designation of agencies, the construction of the form, and the–

Sandra Day O’Connor:

And probably forms that make clear to people who register at driver’s license time that they are not registered thereby for State and local elections.

Robert E. Sanders:

–Oh, certainly I think if this Court were to remand we might make that change, but frankly I do not think that that would be–

Sandra Day O’Connor:

Might.

Robert E. Sanders:

–Well, I do not–

William H. Rehnquist:

You said a moment ago you didn’t think that was a practice or procedure.

Robert E. Sanders:

–No, I don’t.

I don’t think that it amounts to enough, but certainly–

Ruth Bader Ginsburg:

But in your brief you said twice the choice of NVRA forms those agencies would use were administrative changes affecting voting that arguably required section 5 preclearance, and now as I understand your answer to the Chief Justice you’re saying you were wrong to say arguably require preclearance because they weren’t changes that needed preclearance.

Robert E. Sanders:

–Well, I don’t–

Ruth Bader Ginsburg:

But you said it twice so you must have thought about it.

Robert E. Sanders:

–Well, frankly, I mean, I didn’t put as much–

Antonin Scalia:

You think it’s an argument, but it’s a bad argument is what you’re saying.

Robert E. Sanders:

–That’s correct.

Thank you, Your Honor.

David H. Souter:

But didn’t you also… didn’t you also in this argument just a moment ago in responding to Justice O’Connor refer to the need to submit something about the forms?

You used the word form.

Robert E. Sanders:

Right.

The construction of the form the State had–

David H. Souter:

The construction of the form, by which you mean the format and its content?

Robert E. Sanders:

–Well, really what–

David H. Souter:

What do you mean by construction?

Robert E. Sanders:

–As I indicated earlier the NVRA says that persons may register–

David H. Souter:

May I interrupt you just for a second?

Before you tell me that, what… I just want to know what you meant by the words you used.

You spoke of the construction of the forms.

What do you mean by construction of the forms?

Robert E. Sanders:

–If the State of Mississippi had decided to put a lot of additional material on the form, then we would have been constructing in a material sense.

If we had… I can’t think of an example, but if we had put a great deal more material on there.

All we actually put on there were those things that would disqualify someone.

The NVRA form has a voter declaration section and all the person needs to do is sign his name below this declaration which says, I have not been convicted of these certain crimes, I am over 18… in other words it incorporates Mississippi’s qualifications.

David H. Souter:

Okay.

Robert E. Sanders:

Now… so Mississippi put Mississippi’s qualifications in there.

I suppose Alabama put Alabama’s qualifications in there.

So to that extent it is somewhat different than the base form, from the FEC–

David H. Souter:

So you agree that insofar as you include those, in effect State law conditions and limitations you must submit the form for preclearance.

Robert E. Sanders:

–I’m just… no.

I say that arguably if… I don’t know whether just filling out that part and putting our State qualifications is enough.

Frankly, I don’t think it is.

I’m just saying arguably it could be, but I think clearly if we went further than that, if we put other material in there, the more we put into it–

David H. Souter:

Or if you omitted material.

For example, if you omitted a statement calling attention to the fact that under Mississippi law this registration would be good for Federal elections only, that omission, as I understand it, would not be something that would require submission for preclearance.

Robert E. Sanders:

–Well, I’m not sure that not putting something in there amounts to a section 5 change.

David H. Souter:

Well, you say you’re not sure.

I thought your position was going to be that you were sure and it was not a section 5 change and you didn’t have to submit it.

Robert E. Sanders:

Well, all right.

I’ll state it in the affirmative.

I don’t think that not putting that is a section 5 change, correct.

Stephen G. Breyer:

Okay.

What should we do if we think, well, you haven’t submitted the… I see about 20 pages here in this statute.

It has a lot of different procedural requirements, and maybe some are absolutely mandatory, maybe some give you discretion.

If we send it back and say you have to preclear those, would there be a lot of argument about what you have to preclear or not?

I mean, what would you suggest we do?

I imagine what would happen is you’d have to preclear those, and they’d come in and argue that in light of the dual system you have to do something that’s virtually impossible.

I don’t know what they’re going to argue, but they’re going to argue that that dual system is highly relevant, and you’ll argue it isn’t.

All right, and… so what in your opinion, if we… just what Justice O’Connor asked, I think.

What is your opinion if we disagree with you that it has been cleared, and we think it hasn’t been cleared yet, what should we do?

Robert E. Sanders:

Well, I think at most of course you should just simply remand it.

I do not think that this Court should in any way render a decision on… without going back to the district court, but I think still, to the extent that anyone considers that a change has been made, I think that it’s still something that section 5, the district court should have an opportunity to look at.

If the Court feels that more proof should be developed and so forth through discovery, I mean, that can be done, but the very most that this Court should do is remand to the district court, if that’s what your question is.

I–

Stephen G. Breyer:

Mr. Sanders–

–Yes.

A look at the assistance part seems… I mean, there seems to be some words here about their having to provide appropriate assistance, your having to, to people.

That was the part that seemed the most discretionary when I just glanced at it, but that hasn’t been argued fully here.

Robert E. Sanders:

–No, that’s correct, Your Honor.

Antonin Scalia:

Mr. Sanders, I’m reluctant, as some others seem to be to say that you have to submit forms for preclearance, because if we adopt that principle we’ll have to use it not just in this case but in all cases in the future, and the notion that all forms are submittable whenever you make any change is a rather expansive one.

On the other hand, I’m also concerned that the Justice Department ought to be able to protect Mississippi voters from being misled when they register under what is a Federal-only system into believing that they’re registered under State law.

Then they appear at the State voting place and they find that they can’t vote.

Robert E. Sanders:

And Your Honor–

Antonin Scalia:

If we can’t be sure by requiring the forms to be submitted, how can the Attorney General prevent the State of Mississippi from misleading citizens that way?

Robert E. Sanders:

–Well, obviously through a section 2 challenge or any Fifteenth Amendment-based challenge, but our position is that the Attorney General should not be able to do that through the device of section 5 preclearance.

Robert E. Sanders:

Again, we do not think that the Attorney General should be able to review, object, or veto any mandate to the State of Mississippi from the Congress, but they have plenty of other options available to it.

To the extent, as my good friend Mr. Stewart said, that base implementation of the NVRA might amount to a discriminatory purpose, if it does, then the United States may challenge that in a variety of other ways but not through the device of preclearance.

John Paul Stevens:

Is there any significance to the fact that the motor vehicle statute has a specific section in it saying that this doesn’t limit the application of the Voting Rights Act and doesn’t modify it in any way, and doesn’t it follow that if you adopt a new form to be used to register voters, that that’s a change or practice, blah, blah, blah, within the meaning of section 5?

Robert E. Sanders:

I read that language in the NVRA simply to mean the same… or I read it the same way I read footnote 29 in Allen, where this Court says that State-initiated changes, even when made to comply with section 5 of the Voting Rights Act, must be submitted for preclearance.

I read that language in the NVRA the same way.

When the State makes changes itself, they must be submitted for preclearance even though they are part of an NVRA–

John Paul Stevens:

But the fact that the Federal Government, the Federal statute required them to do some things, made them print a new form with respect to elections, is it not still true that the distribution of a new form to people who are being registered, a form you never used before, is a change in a voting practice?

Robert E. Sanders:

–Not within the meaning of section 5.

John Paul Stevens:

You don’t think so.

Robert E. Sanders:

No.

I don’t think that language in the NVRA was designed to give the Attorney General the right of veto over an act of Congress, over a mandate from the Congress.

Anthony M. Kennedy:

Well, if the… without reference to the NVRA, the State of Mississippi decided to have a new form advising voters of the effect of their registration, where they could register and so forth, would that have to be precleared?

Robert E. Sanders:

If it was just a–

Anthony M. Kennedy:

It’s an instruction mailed to all voters with respect to an explanation of registration procedures.

You do not have to preclear that?

Robert E. Sanders:

–Absolutely not.

I mean, there’s nothing new about circuit clerks or Secretary of States or any elected official–

Anthony M. Kennedy:

Suppose it’s a new form, new wording, et cetera.

Robert E. Sanders:

–It doesn’t matter, Your Honor.

If it’s just designed to convey information to the electorate, no, that’s not a change in any sense.

Anthony M. Kennedy:

This is not a voting practice or procedure.

Robert E. Sanders:

No, of course not.

It has nothing to do with a person’s ability to vote.

It simply is… if we’re trying to inform them of their status, that does not represent a change for section 5 purposes or for any other purposes so far as I can see.

That is simply… I mean, all elected officials have always done what they can to help people… to help their constituents.

That’s just currying favor with voters, and that does not represent a section 5 change.

If there are no more questions, thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Sanders.

The case is submitted.

The honorable court is now adjourned until tomorrow at 10 o’clock.