Brooks v. State Board of Elections

775 F. Supp. 1470, 1989 U.S. Dist. LEXIS 17757

• Court: District Court, S.D. Georgia
• Decided: December 1, 1989
• Docket: Civ. A. File CV288-146
• Status: Published

Opinions

MEMORANDUM OPINION AND ORDER

On July 13, 1988 plaintiffs commenced this action alleging violations of sections 2 and 5 of the Voting Rights Act of 1965 (currently codified as amended at 42 U.S.C. §§ 1973 and 1973c, respectively), as well as provisions of the first, thirteenth, fourteenth, and fifteenth amendments to the United States Constitution. The plaintiffs are black voters of Georgia, some of whom are elected officials of various Georgia counties, suing for themselves and on behalf of those similarly situated.¹

Defendants do not contest class certification or standing.² The defendants are the Georgia State Board of Elections and Max Cleland, Secretary of State and Chairman of the Georgia State Board of Elections.³ A three-judge district court was convened to consider the alleged violations of section 5 of the Voting Rights Act. See 42 U.S.C. § 1973c; 28 U.S.C. § 2284. Currently before the court is plaintiffs’ motion for summary judgment and injunctive relief.

I.

Since August 7, 1965 Georgia has been a “covered jurisdiction” within the meaning of section 5 of the Voting Rights Act. 28 C.F.R. § 51 App. (1988); 30 Fed.Reg. 9897 (1965). As a covered jurisdiction, Georgia must administratively preclear “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964” with the Attorney General of the United States or institute a declaratory judgment action in the District Court for the District of Columbia. See 42 U.S.C. § 1973c.⁴

From 1964 to 1988, Georgia enacted 80 statutes regarding the election of superior court judges. All told, seventy-seven judgeships and five new circuits were created. The State submitted these to the Attorney General for preclearance on June 27 and 28, 1988. By letter of August 26, 1988 the Attorney General notified the State that he did not object to thirty-one of the proposed changes. Thus, twenty-nine of the seventy-seven new judgeships and three of the five new circuits were precleared. See Appendix A. In the same letter the Attorney General requested more information regarding the remaining changes.⁵ The State submitted some further information, but chose not to comply fully with the Attorney General’s request.

In order to obtain preclearance under section 5 of the Voting Rights Act, the State, as the submitting authority, has the burden of showing that a submitted change has neither a discriminatory purpose nor effect. See e.g., Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973). Because the State deliberately chose not to comply with the Attorney General’s request for further information regarding the changes, the State failed to meet its burden under section 5. Accordingly, on June 16,1989 the Attorney General notified the State that he objected to the addition of the forty-eight judgeships and the redistricting of two circuits with respect to which he had earlier requested information. See Appendix B.

The statutes to which the Attorney General has objected fall into three broad categories. First, two new judicial circuits are created. Second, some circuits that previously had only one superior court judgeship are given one or more additional judge-ships. Third, certain circuits that had previously had more than one superior court judgeship are given one or more additional judgeships.

In 1989 the State General Assembly created six more superior court judgeships. All but one of these was to commence on July 1, 1989. See Appendix C. The governor has agreed to refrain from nominating anyone to fill these posts pending this court’s decision. The remaining judgeship is authorized to commence on January 1, 1990. The State has not yet submitted these changes to the Attorney General for preclearance, nor has the State commenced a declaratory judgement action in the District Court for the District of Columbia as provided by section 5 of the Voting Rights Act.

One of the judgeships created in 1989 has, however, been precleared: the officials of Bartow County submitted the addition of a judgeship to the Cherokee Circuit to the Attorney General for preclearance, and the Attorney General has notified Bartow County that he does not object to the change.

Among other requirements for election, a candidate for a superior court judgeship must designate the specific opening for which he is seeking election if there is more than one judgeship up for election. In order to be elected, a candidate must receive an absolute majority of votes cast. Judges are elected on a circuit-wide basis. As we discuss below, for the purposes of our opinion we will treat these three requirements as having been precleared within the context of the then-existing electoral scheme. See infra Part III.A.2.

II.

The role of the three-judge court entertaining an action under section 5 of the Voting Rights Act is limited. The three-judge court determines “(1) whether a change [is] covered by § 5, (ii) if the change [is] covered, whether § 5’s approval requirements were satisfied, and (iii) if the requirements were not satisfied, what remedy [is] appropriate.” City of Lockhart v. United States, 460 U.S. 125, 129 n. 3, 103 S.Ct. 998, 1001 n. 3, 74 L.Ed.2d 863 (1983). The court does not consider the merits of a plaintiff’s claim that the proposed changes are discriminatory. United States v. Board of Supervisors, 429 U.S. 642, 97 S.Ct. 833, 51 L.Ed.2d 106 (1977); Perkins v. Matthews, 400 U.S. 379, 385, 91 S.Ct. 431, 435, 27 L.Ed.2d 476 (1971). The court may consider any equitable arguments put forth by the defendants or the plaintiffs only in the limited context of fashioning an appropriate remedy. See infra Parts IV and V.

III.

As noted above, the first step for a three-judge court is to determine “whether a change [is] covered by § 5.” In this case, that question has two facets. First, whether, as a general matter, section 5 encompasses changes regarding the election of judges. If section 5 applies to the election of judges, then the next step is to determine whether the specific “changes” at issue in this case are “covered changes,” i.e., changes that trigger the application of section 5.⁶

A.

“For possible appeal purposes,” the State has “expressly reserve[d] the contention that the election of judges are never covered by Section 5.” Because defendants cannot cede jurisdiction to a federal court, and because three-judge district courts are exceptional, this court should consider its jurisdiction as a threshold issue. Cf. Harper v. Levi, 520 F.2d 53 (D.C.Cir.1975) (statute calling for three-judge district court should be strictly construed).

Courts that have addressed this question have concluded that section 5 applies to the election of judges. See Haith v. Martin, 618 F.Supp. 410 (E.D.N.C.1985) (three-judge court), aff'd mem., 477 U.S. 901, 106 5. Ct. 3268, 91 L.Ed.2d 559 (1986); Kirksey v. Attain, 635 F.Supp. 347 (S.D.Miss.1986) (same).⁷

The Supreme Court’s summary affirmance of Haith v. Martin may well have decided this issue. In Haith, the state did not challenge that the changes were changes of a “standard, practice, or procedure with respect to voting,” but the state did argue that section 5 did not apply to the election of judges. 618 F.Supp. at 414. The state also argued that equitable principles excused the state’s failure to preelear because earlier the state had submitted the changes for preelearance and the Justice Department had informed the state that the changes at issue were not within the scope of section 5. Id.

The three-judge court concluded that section 5 encompassed the election of judges, and found that the proposed changes to the election of superior court judges had not been precleared as section 5 required. Id. at 412-13. The court also concluded that section 5 did not empower the court “to provide equitable relief to defendants, no matter how just their cause.” Id. at 414.

The state appealed to the Supreme Court. The state’s jurisdictional statement presented the following two questions to the Court:

I. Whether this Court’s decision in Allen v. State Board Elections, 393 U.S. 544 [89 S.Ct. 817, 22 L.Ed.2d 1] (1969), should be extended to cover a state’s judiciary?

II. Whether past changes in North Carolina’s judiciary must be precleared pursuant to § 5 of the Voting Rights Act, in light of the special circumstances of this case?

The Supreme Court summarily affirmed the three-judge court. 477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986).

The State cites Fusari v. Steinberg, 419 U.S. 379, 388-89, n. 15, 95 S.Ct. 533, 539-40, n. 15, 42 L.Ed.2d 521 (1975) for the proposition that a summary affirmance is of limited precedential significance. All Fusari teaches, however, is that lower courts may not construe a summary affirmance as having reached any issues other than those absolutely necessary to have resolved the case. As plaintiffs observe, summary affirmances “without doubt reject the specific challenge presented in the statement of jurisdiction” and “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977).

For the Haith Court to have affirmed, it necessarily must have concluded that section 5 applies to the election of judges.⁸

Even in the absence of the Supreme Court’s affirmance in Haith, the State has been unable to point to any language in the statute or in the legislative history in support of its contention that section 5 of the Voting Rights Act does not apply to the election of judges.

By its terms, section 5 of the Voting Rights Act does not differentiate among types of elections. Section 5 applies to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964.” The Supreme Court has ruled that the broadest possible meaning should be given to the phrase “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964.” Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). As the Allen Court noted, “[t]he legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered state in even a minor way.” Id. at 566, 89 S.Ct. at 832. See also Dougherty County, Georgia, Board of Education v. White, 439 U.S. 32, 99 S.Ct. 368, 58 L.Ed.2d 269 (1978); United States v. Sheffield Board of Commissioners, 435 U.S. 110, 122-23, 98 S.Ct. 965, 974-75, 55 L.Ed.2d 148 (1978).

Although not dispositive on the issue of the intent of Congress in passing the 1965 Voting Rights Act, it is interesting to note that when Congress considered extending the Voting Rights Act in 1982, Congress apparently believed the Voting Rights Act applied to the election of judges. For example, Senator Hatch asserted that the Act’s use of the term “ ‘political subdivision’ encompasses all governmental units, including city and county councils, school boards, judicial districts, utility districts, as well as state legislatures.” S.Rep. 417 at 151, 1982 U.S.Code Cong. & Admin.News 177, 323 (emphasis added). In addition, the statistical evidence presented to Congress in considering the need to extend the Voting Rights Act uniformly included election of minorities to judgeships (where appropriate).

Thus, in light of the Supreme Court’s summary affirmance of Haith, and in light of the broad language of section 5, we conclude that section 5 applies to the election of judges.

B.

Having concluded that the election of judges falls within the scope of section 5, our next task is to determine whether the specific changes at issue here trigger section 5 scrutiny, i.e., whether the statutes at issue here enact changes of “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.”

1. The creation of new circuits.

The defendants do not dispute that the creation of new judicial circuits falls under section 5; yet even while acknowledging this, the State thus far has refused to take the necessary steps to preclear the redistricting changes. Indeed, the changing of geographical boundaries of election districts, either by redrawing or splitting pre-existing districts, however minor, is unquestionably a change that must be precleared under section 5. See 28 C.F.R. § 51.13(e) (Example of covered change includes “Any change in the constituency of an official or the boundaries of a voting unit (e.g., through redistricting, annexation, deannexation, incorporation, reapportionment, changing to at-large elections from district elections, or changing to district elections from at-large elections)”). See also, e.g., McCain v. Lybrand, 465 U.S. 236, 237, 104 S.Ct. 1037, 1039, 79 L.Ed.2d 271 (1984) (creation of residency districts within county falls under section 5); Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973) (redistricting); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (change from district to at large voting); McMillan v. Escambia County, 559 F.Supp. 720 (N.D.Fla.) (redistricting), cert. denied, 464 U.S. 830, 104 S.Ct. 108, 78 L.Ed.2d 110 (1983).

The redistricting necessarily affects both the newly-created circuits and the prior circuits from which new circuits were created. Thus, the creation of the Houston Circuit from the former Macon Circuit, and the creation of the Alcovy Circuit from the Western and Stone Mountain Circuits implicates both the newly-created circuits and the current Macon, Western, and Stone Mountain circuits. Any judgeships that were added to any of these circuits after the redistricting are, therefore, also subject to preclearance. Specifically, the following acts all require preclearance under section 5:

Year Act Change

1969 303 (as amended 1971 Act 587)created Houston Circuit

1972 849 created Alcovy Circuit

1972 1194 Stone Mountain add’l judge

1976 996 Western add’l judge

1978 1082 Alcovy add’l judge

1981 772 Macon add’l judge

1984 851 Houston add’l judge

1986 1339 Stone Mountain add’l judge

2. The Creation of New Judgeships

In determining whether the addition of a new judgeship to an existing circuit is a covered change in a “standard, practice, or procedure with respect to voting,” we recognize that “[t]he legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered state in even a minor way.” Allen v. State Board of Elections, 393 U.S. 544, 566, 89 S.Ct. 817, 832, 22 L.Ed.2d 1 (1969). See also Dougherty County, Georgia, Board of Education v. White, 439 U.S. 32, 99 S.Ct. 368, 58 L.Ed.2d 269 (1978); United States v. Sheffield Board of Commissioners, 435 U.S. 110, 112-23, 98 S.Ct. 965, 974-75, 55 L.Ed.2d 148 (1978).

The regulations under section 5, promulgated by the Attorney General, stress the broad scope of “standard, practice, or procedure”: ⁹

28 C.F.R. § 51.12 Scope of requirement.

Any change affecting voting, even though it appears to be minor or indirect, returns to a prior practice or procedure, ostensibly expands voting rights, or is designed to remove the elements that caused objection by the Attorney General to a prior submitted change, must meet the Section 5 preclearance requirement.

The Supreme Court has approved expressly of this expansive view of § 5: “Given the central role of the Attorney General in formulating and implementing § 5, this interpretation of its scope is entitled to particular deference.” ¹⁰ Dougherty County, Georgia, Board of Education v. White, 439 U.S. at 39, 99 S.Ct. at 373. See also United States v. Sheffield Board of Commissioners, 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978) (giving deference to Attorney General's contemporaneous interpretation as guide to congressional intent).

In addition to its express approval of the Attorney General’s broad view of section 5, the Supreme Court has set the following standard for whether a proposed change falls within § 5: “in determining if an enactment triggers § 5 scrutiny, the question is not whether the provision is in fact innocuous and likely to be approved, but whether it has a potential for discrimination.” Dougherty County, Georgia, Board of Education v. White, 439 U.S. at 42, 99 S.Ct. at 374 (emphasis in original).

Thus, to determine whether the addition of a judgeship to a preexisting circuit is a covered change we must consider whether that addition has a potential for discrimination, and must conduct our inquiry in light of the Supreme Court’s admonition that “Congress intended to reach any state enactment which altered the election law of a covered state in even a minor way.” We stress, however, that we may not consider the merits of whether or not a particular change has a discriminatory purpose or effect; rather, we may only consider whether it has a potential for discrimination.

The State argues that the addition of new judgeships does not constitute a covered change, and that it has no potential for discrimination, as the new judges will be elected according to Georgia’s majority-vote, designated-post, and circuit-wide voting election procedures, all of which have already been precleared.¹¹ According to the State, the creation of additional judicial posts does not change any “standard, practice, or procedure with respect to voting” where the method by which candidates will be elected to those posts has not been changed.

The State’s argument, however, assumes that Georgia’s election procedures were precleared with respect to the judgeships existing at the time of preclearance and with respect to any future judgeships. We cannot accept such an assumption. It is well established that the Attorney General does not preclear a change unless it is expressly and unambiguously presented to him for preclearance. McCain v. Lybrand, 465 U.S. 236, 253, 104 S.Ct. 1037, 1047-48, 79 L.Ed.2d 271 (1984). Preclearance occurs only in the context of an existing electoral scheme; the number of judges elected within a particular circuit constitutes part of that scheme. If adding new judicial posts, even where candidates will be elected according to precleared voting procedures, has “a potential for discrimination,” then such an addition would be a covered “enactment” under section 5. Dougherty County, 439 U.S. at 42, 99 S.Ct. at 374.

Furthermore, the Attorney General could not have objected to the State’s proposed election procedures based on the possibility that such procedures could have a discriminatory effect if additional judgeships were subsequently added. The Attorney General may only preclear that which is presented to him, and preclearance of the election procedures as applied to election of a certain number of judges does not insulate those procedures from preclearance review when they are applied to a different number of judges and may, therefore, have a discriminatory effect.¹²

We think that, given Georgia’s majority-vote, designated-post, and circuit-wide election rules, the creation of new judgeships does have the potential for discrimination. Where more than one judicial post exists in a given circuit, these election rules require a candidate to run for a specific seat. Georgia law thus precludes the alternative system where all candidates compete against each other and where judgeships are awarded to the highest vote-getters out of the field of candidates.

One effect of precluding the latter form of election is to prevent effective “single-shot” voting. In a “single-shot” voting campaign, a cohesive bloc of minority voters agrees to vote for only one candidate out of a group of candidates running for office, even though two or more officeholders will be elected out of the group of candidates running. For example, if two judges are to be elected out of a field of four candidates, the minority bloc of voters will vote for just one candidate. By focusing their voting power in this way, minority group can sometimes elect someone to office without a significant amount of support from the majority group voters.¹³ Majority-vote, designated-post, and circuit-wide election rules are often called “anti-single-shot” provisions because they render such “single-shot” campaigns futile.

Anti-single-shot provisions cut off one avenue by which minority voters can exercise the vote within the electoral system. Changes which mitigate the ability of minority groups to elect their choice of candidates are potentially discriminatory. Adding judges to a circuit can bring about just such a change, because the anti-single-shot provisions can affect adversely the voting rights of minorities depending upon the number of judicial posts available.

The potential for discrimination resulting from the interplay of anti-single-shot provisions and a change in the number of posts is most evident in the change from a single-judge to a multi-judge circuit. Twenty-four of the challenged acts implement such a change. Where only one judge is to be elected in a circuit, anti-single-shot provisions can have no potential for discrimination. If another judicial post is added, however, such provisions may well be thwarting what would otherwise be an opportunity to conduct a successful single-shot voting campaign.¹⁴

Adding a post to a multi-judge circuit could have the same effect. Depending upon the percentage of minority voters and the cohesiveness of their voting, a successful single-shot voting campaign may be highly improbable until there are three or more available posts in the circuit.¹⁵ If a single-shot campaign, although unavailing when only two posts are available, would be successful in a three-post race, then the addition of that third post alters the effect of the anti-single-shot provisions in that district. As stated above, because anti-single-shot provisions affect minority bloc voting power, any potential change in the impact of such provisions creates the potential for discrimination. Thus, adding a judge or judges for either single-judge or multi-judge districts, has the potential for discrimination against the backdrop of anti-single-shot-election law provisions such as Georgia’s.

Section 5 is a drastic remedy imposed on the States to remedy extraordinary wrongs. The State suggests that our ruling here will drastically expand the impact of Section 5. We disagree. The simple reality of Section 5 is that if a covered jurisdiction seeks to enact any change with respect to voting, however minor, that change must be precleared. If the Attorney General, or the District Court for the District of Columbia, refuses to preclear the change, then that change may not be enforced.

Contrary to the State’s suggestion, our ruling here does not imply that if a State seeks to preclear any minor change, then the Attorney General may try to recast a state’s entire electoral system. If a change is not precleared then the State retains the option of returning to the status quo ante. We recognize that this is harsh result, but it is mandated by federal law.¹⁶

IV.

It is undisputed that the defendants have not satisfied the requirements of Section 5. The defendants have not sought a declaratory judgment in the District of Columbia. Not only have they failed to preclear the changes with the Attorney General, but the Attorney General has notified the parties that he objects to the proposed changes in accordance with published regulations.¹⁷

The State has suggested that it is waiting to complete the section 2 case before it complies with the Attorney General’s request for information. The defendants of course have that right, but that does not mean that the Attorney General must stop his consideration of the changes. As the Supreme Court has noted, the very purpose of section 5 is to require preclearance before changes can be put into effect, and to avoid using litigation by voters as the mechanism for testing changes in voting laws. See e.g., McCain v. Lybrand, 465 U.S. 236, 243-44, 104 S.Ct. 1037, 1042-43, 79 L.Ed.2d 271 (1984). If this court were to adopt the defendants’ theory, and excuse their failure to comply with the Attorney General’s request for more information, it would undercut the core of section 5. The State’s unilateral decision not to comply with the requirements of preclearance does not stay the operation of section 5.

We are mindful of the time that has elapsed since some of the changes were enacted. We cannot, however, “equitably preclear” any of the changes based on equity’s rule of laches. See McCain, 465 U.S. at 249-52, 104 S.Ct. at 1046-47; cf. Haith v. Martin, 618 F.Supp. 410 (estoppel). Recognizing that the Attorney Genera] could not keep track of changes relating to voting being made, Congress put the burden on the covered jurisdictions to seek preclearance to avoid the very problem we now face. We would do violence to the heart of section 5 if we were to excuse the State’s failure to seek preclearance merely because the State has been disregarding section 5 for a long time. Moreover, Supreme Court precedent in this area is unambiguous. Allen v. State Board of Elections, 393 U.S. 544, 571, 89 S.Ct. 817, 834; United States v. Sheffield Board of Commissioners, 435 U.S. at 136, 98 S.Ct. at 981; McCain v. Lybrand, 465 U.S. at 249-51, 104 S.Ct. at 1045-46. Section 5 means what it says: absent preclearance, a covered change may not be enforced.

V.

The final step for the three-judge court is to determine “what remedy is appropriate.” Section 5 contemplates injunctive relief, which is by its nature equitable. Moreover, the Supreme Court has indicated that the three-judge court has some limited discretion in fashioning a remedy by directing that the court must fashion an “appropriate” remedy. See e.g., Perkins v. Matthews, 400 U.S. 379, 441, 91 S.Ct. 431, 441, 27 L.Ed.2d 476 (1971) (question of appropriate remedy for district court); cf., N.A.A.C.P. v. Hampton County Election Comm’n, 470 U.S. 166, 183, 105 S.Ct. 1128, 1138, 84 L.Ed.2d 124 (1985) (discretion of district court). Thus, we must exercise our discretion in fashioning the appropriate remedy for the case at hand.

As we discussed above, a three-judge court cannot rule that the covered changes have been “equitably precleared.” At the other extreme, we are not required to rule, as the plaintiffs suggest, that the covered changes are void ab initio, retroactively rendering void any actions taken by a judge whose position is the result of a covered change that was not precleared. Granting such a remedy would result in the reversal of years of convictions, the overturning of myriad judgments; in short, it would create genuine chaos. The plaintiffs were irresponsible to suggest that this court follow such a course. We cannot stress too strongly that the validity of the actions taken by these judges is in no way implicated by our decision here.

The language of the statute— “may not be enforced” — suggests prospective relief. Moreover, in Berry v. Doles, 438 U.S. 190, 192, 98 S.Ct. 2692, 2693, 57 L.Ed.2d 693 (1978), and N.A.A.C.P. v. Hampton County Election Commission, 470 U.S. 166, 179, 105 S.Ct. 1128, 1135-36, 84 L.Ed.2d 124 (1985), the Supreme Court directed that appropriate relief under section 5 should include an order allowing 30 days for the state to submit the covered changes to the Attorney General for approval. N.A.A.C.P. v. Hampton County, 470 U.S. at 182, 105 S.Ct. at 1137; Berry, 438 U.S. at 192-93, 98 S.Ct. at 2693-94. Both these cases, however, involved situations where the covered changes had not been submitted to the Attorney General at all, and thus the Attorney General had not objected. Here, on the other hand, except for the five 1989 judgeships (not counting Bartow County) that were not submitted by Georgia for preclearance, the Attorney General has objected to the changes. Nevertheless, the Attorney General has expressed that he is “ready and willing to reconsider” his determination, and we will take him at his word.¹⁸ Thus, we believe it is appropriate for us to follow the course set out in Berry and N.A.A.C.P. v. Hampton County.

The defendants, therefore, have thirty days in which to comply fully with the Attorney General’s prior request for information and to request reconsideration from the Attorney General of his objection to the proposed changes. See generally 28 C.F.R. § 51.45. The defendants, however, will not be allowed to use the preclearance procedure in any dilatory manner at this late stage. Under the dictates of Berry and N.A.A.C.P. v. Hampton County, defendants have 30 days in which to complete their submission to the Attorney General, and they may of course request expedited consideration under 28 C.F.R. § 51.-34. The defendants may not comply piecemeal and seek to stretch out the preclearance process.

In N.A.A.C.P. v. Hampton County the Court directed that

[i]f appellees fail to seek this approval [from the Attorney General], or if the approval is not forthcoming, the results of the [ ] election should be set aside. If, however, the Attorney General determines that the changes had no discriminatory purpose or effect, the District Court should determine, in the exercise of its equitable discretion, whether the results of the election may stand.

470 U.S. at 182-83, 105 S.Ct. at 1137-38.

We turn now to the appropriate remedy on the one hand, if the defendants fail to seek reconsideration from the Attorney General or if the Attorney General objects to a covered change, or on the other hand, if the Attorney General concludes that a covered change does not have a discriminatory purpose or effect. We first will consider the latter alternative.

If, on reconsideration, the Attorney General concludes that a given change does not have a discriminatory purpose or effect, then we believe, in the exercise of our equitable discretion, that an election under that change should be allowed to stand. In so concluding, we note that until 1986, the date of the Supreme Court’s summary affirmance of Haith v. Martin, it was not unequivocally clear that section 5 applied to the election of judges. See Perkins v. Matthews, 400 U.S. 379, 394, 396, 91 S.Ct. 431, 439-40, 441, 27 L.Ed.2d 476 (1971) (“in determining the appropriate remedy, other factors may be relevant, such as the nature of the changes complained of, and whether it was reasonably clear at the time of the election that the changes were covered by § 5”). We also recognize the upheaval in the State judiciary that would result if we were to set aside the elections of a significant number of Superior Court judges. We are not unmindful of the fact that the State itself is responsible for the consequences of its failure to comply with the provisions of section 5, yet we believe that the potential harm to the people of the State of Georgia outweighs the potential harm (if any) of allowing the elections to stand. Thus, if the Attorney General finds that a change does not have a discriminatory purpose or effect, then the election under that change (i.e., that particular additional judgeship) shall stand. Similarly, if the Attorney General concludes that the changes enacted in 1989 do not have a discriminatory purpose or effect, then the Governor may fill those positions.

We turn now to the more problematic issues. Should the defendants fail to seek reconsideration from the Attorney General within the 30 days permitted, or should the Attorney General decline to reconsider his prior objection, or should he, upon reconsideration, conclude that a particular change has a discriminatory purpose or effect, then we must afford some affirmative relief. N.A.A.CP. v. Hampton County suggests, “the election should be set aside,” N.A.A.C.P. v. Hampton County, 470 U.S. at 183, 105 S.Ct. at 1137-38, but this is not our only remedy. Cf Perkins v. Matthews, 400 U.S. at 395, 91 S.Ct. at 440 (declining to set aside election).

We have no difficulty holding that the Governor may not appoint judges to any non-pre-cleared position created in 1989 until that position has been precleared. Further, we hold that in the case of a judgeship added to a pre-existing circuit, no further election can be held for that position if the position is not precleared. However, we believe it a proper exercise of our equitable discretion to permit incumbents to serve out their full terms, and do not declare unprecleared judgeships added to circuits with unchanged boundaries void until the date of the next scheduled election for the position.

Allen v. State Board of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 833, 22 L.Ed.2d 1 (1969) is instructive. In Allen the Court refused to set aside the elections at issue because, “[t]hese § 5 coverage questions involve complex issues of first impression — issues subject to rational disagreement. The state enactments were not so clearly subject to section 5 that the [state’s] failure to submit them for approval constituted deliberate defiance of the [Voting Rights] Act.” 393 U.S. at 572, 89 S.Ct. at 835. As noted above, see supra Part III.A, the applicability of section 5 to the election of judges has, until recently, been a “subject of rational disagreement.” Thus, Allen suggests that it is within our discretion in fashioning the appropriate remedy to permit an incumbent to serve out a term of office.

If we were to set aside numerous judge-ships abruptly, the remaining judges would be overwhelmed by the resulting increase in work and the court system thrown into disarray. This would be harmful to all citizens of the State, including minorities. On the other hand, permitting these judges to serve out their term will not significantly injure the plaintiffs.

Thus, if the defendants fail to obtain approval of a change that adds a judgeship to a preexisting circuit we believe it best to allow the incumbent to serve out his term of office. If the Attorney General concludes that any of the judgeships created in 1989 has the purpose or effect of discrimination, then that post may not be filled, either by appointment or election.

We turn finally to the circuits that have been redistricted. If, upon resubmission and reconsideration, the Attorney General continues to object to the redistricting, then we have no choice but to enforce the prior districting plan. As discussed earlier, all judgeships in these redistricted circuits are implicated by the State’s failure to preclear the changes. Thus, again weighing the equities, we believe that the appropriate remedy in the event the defendants do not obtain preclearance is to direct that at the next regularly scheduled election the affected circuits shall revert to the prior districting plan and the previous number of judgeships, with the additional judgeships then terminating, even if, under the staggered term system, there remains time in the elected terms.

VI.

We are fully aware of the gravity of our decision here. We also are constrained to note that we have come to these conclusions reluctantly. Nevertheless, the State has pointed to no authority to suggest that section 5 does not apply to the election of judges, nor has the State been able to show that the addition of judges is not a covered change within the scope of section 5. By the same token, the State has failed to adduce any precedent that might justify its deliberate decision not to comply with the Attorney General’s request for information, a decision that has forced us ineluctably to take the steps we have here.

Accordingly, following the explicit language of section 5 of the Voting Rights Act and Supreme Court precedent, we conclude that section 5 applies to the election of judges. We also conclude that the specific changes at issue here are covered changes that must trigger section 5 scrutiny. We further find that these covered changes have not been precleared as section 5 requires. Therefore, as detailed above, because these changes have not been precleared, Congress has directed they “may not be enforced.”

SO ORDERED.

APPENDIX A

Year Act Judicial Circuits

1967 1967 93 99 Clayton Blue Ridge

1968 768 (amending 1967 Act 93) Clayton

1967 175 Northeastern

1971 28 Tallapoosa

1972 852 Rome

1972 1091 Gwinnett

1972 1557 Cobb

1974 859 Conasauga

1977 237 Clayton

1977 291 Tallapoosa

1977 353 Gwinnett

1978 1007 Lookout Mountain

1978 1013 Cherokee

1978 1016 Cobb

1980 944 Tallapoosa

1980 944 Douglas

Year Act Judicial Circuits

1980 1016 Rome

1981 119 Mountain

1981 122 Conasauga

1981 524 Douglas

1982 862 Cobb

1982 863 Gwinnett

1982 865 Rockdale

1983 364 Appalachian

1984 827 Cobb

1984 850 Clayton

1986 933 Northeastern

1986 934 Piedmont

1987 495 Gwinnett

1987 547 Cobb

1988 915 Appalachian

APPENDIX B

Changes to which the Attorney General has Objected

1967 100 Stone Mountain

1967 101 Brunswick

1968 746 Ocmulgee

1969 183 Southern

1969 303 (amended 1971 Act 587) Houston

1969 616 Chattahoochie

1971 457 Augusta

1971 802 Atlanta

1971 810 Atlantic

1972 849 Alcovy

1972 1194 Stone Mountain

1974 849 Coweta

1974 850 Atlanta

1974 857 Waycross

1974 858 Dougherty

1975 115 Southern

1975 503 Flint

1976 996 Western

1976 1108 Oconee

1977 244 Middle

1977 247 Northern

1977 293 Griffin

1977 336 Chattahoochie

1977 340 Alapaha

1978 1017 South Georgia

1978 1076 Ogeechee

1978 1082 Alcovy

1979 479 Ocmulgee

1979 515 Eastern

1980 725 Dublin

1980 978 Tifton

1980 1078 Brunswick

1980 1209 Cordele

1980 1350 Coweta

1981 101 Southwestern

1981 107 Waycross

1981 123 Toombs

1981 124 Pataula

1981 772 Macon

1982 860 Atlantic

1984 845 Atlanta

1984 851 Houston

Year Act Judicial Circuits

1986 1336 Augusta

1986 1339 Stone Mountain

1987 315 Griffin

1987 743 Brunswick

1988 911 Stone Mountain

APPENDIX C

Non-Precleared Judgeships Created in 1989

Act Circuit

S.B. 142 Southern Judicial Circuit

H.B. 559 Chattahoochee Judicial Circuit

H.B. 306 Eastern Judicial Circuit

S.B. 167 Atlantic Judicial Circuit

H.B. 721 Atlanta Judicial Circuit

1 . These plaintiffs include: Representatives from Fulton County to the Georgia General Assembly; residents and voters of Fulton County; residents and voters of Glynn County, Georgia; a resident and voter of Muscogee County, Georgia; a resident and voter of Mitchell County, Georgia; a resident, voter, and Representative to the Georgia General Assembly of Dougherty County, Georgia; a resident and voter of Bibb County, Georgia; a resident, voter, and elected official of Chatham County, Georgia; and a resident and voter of Wilkes County, Georgia. All plaintiffs are black.

2 . Oral argument, Tr. at 5.

3 . Other named defendants, having been found unnecessary to provide full relief, were dismissed pursuant to Fed.R.Civ.P. 21.

4 . Section 1973c provides in relevant part:

§ 1973c. Alteration of voting qualifications and procedures; action by state or political subdivision for declaratory judgment of no denial or abridgement of voting rights; three judge district court; appeal to Supreme Court

Whenever a [covered] State or political subdivision [...] shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, [...] such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court.

5 . The information requested by the Justice Department included: the legislative history of the statutes, alternatives considered, and newspaper accounts of the superior court system; criteria used in deciding when to create new circuits rather than adding judgeships to existing circuits; description of participation by the black community in the decision-making process; state reports or studies, from 1964 to date, relating to judicial reform, elections, additions, or redistricting; election returns since 1964 identified by race and incumbency, and also data relating to quantity and racial designation of registered voters.

6 . Implicit in this is, of course, the recognition that some changes are not covered changes. For example, if a state merely codifies its election laws, this is a change, but it is not a covered change because it does not alter a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” E.g., Kirksey v. Attain, 635 F.Supp. 347, 350 (S.D.Miss.1986) (three-judge court).

7 . We also note that § 2 of the Voting Rights Act has been held to apply to the election of judges. Mallory v. Eyrich, 839 F.2d 275 (6th Cir.1988); Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988); Martin v. Mabus, 700 F.Supp. 327 (S.D.Miss.1988).

8 . The Haith court said that "Defendants have not challenged plaintiffs contentions that each of the statutes in question deals with a ‘standard, practice, or procedure with respect to voting,' " 618 F.Supp. at 410. This does not mean that the defendants conceded that § 5 applies to the election of judges. Indeed, to the contrary, one of the issues on appeal to the Supreme Court was squarely presented as whether § 5 applies to the election of judges. What the Haith court’s observation means is that the defendants did not challenge whether the changes were specifically "covered changes."

9 . See also 28 C.F.R. § 51.13 (Examples of changes.)

Changes affecting voting include, but are not limited to, the following examples:

(a) Any change in qualifications or eligibility for voting.

(b) Any change concerning registration, balloting and the counting of votes and any change concerning publicity for or assistance in registration or voting.

(c) Any change with respect to the use of a language other than English in any aspect of the electoral process.

(d) Any change in the boundaries of voting precincts or in the location of polling places.

(e) Any change in the constituency of an official or the boundaries of a voting unit (e.g., through redistricting, annexation, deannexation, incorporation, reapportionment, changing to at-large elections from district elections, or changing to district elections from at-large elections).

(f) Any change in the method of determining the outcome of an election (e.g., by requiring a majority vote for election or the use of a designated post or place system).

(g) Any change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective offices.

(h) Any change in the eligibility and qualification procedures for independent candidates.

(i) Any change in the term of an elective office or an elected official or in the offices that are elective (e.g., by shortening the term of an office, changing from election to appointment or staggering the terms of offices).

(j) Any change affecting the necessity of or methods for offering issues and propositions for approval by referendum.

(k) Any change affecting the right or ability of persons to participate in political campaigns which is effected by a jurisdiction subject to the requirement of Section 5.

10 . The Attorney General has filed an amicus brief in this case on behalf of plaintiffs, in which he expresses his belief that the addition of judgeships to pre-existing circuits is a "covered change” under section 5.

11 . The State is correct in its assertion that the designated-post, majority-vote, and circuit-wide election procedures were precleared in the context of the then-existing electoral scheme. In United States v. Georgia, C.A. No. C76-1531A (N.D.Ga.1977) (three judge court), aff'd mem., 436 U.S. 941, 98 S.Ct. 2840, 56 L.Ed.2d 782 (1978), the court concluded that the majority-vote and designated-seat election requirements had been precleared. In 1968 the Attorney General precleared the change (involving an amendment to the state constitution), whereby Georgia went from state-wide to circuit-wide election of judges. Finally, in 1983, the Attorney General precleared the change from partisan to nonpartisan election of judges.

12 . In McCain v. Lybrand, 465 U.S. 236, 253, 104 S.Ct. 1037, 1047-48, 79 L.Ed.2d 271 (1986), South Carolina had enacted a change in the county governance of Edgefield County. Under the 1966 act, "a three-member county Council with broad legislative and administrative powers was created, and the county was divided into three residency districts for purposes of electing Council members.” 465 U.S. at 239-40, 104 S.Ct. at 1040-41. This change was never submitted to the Attorney General for preclearance. In 1971 the state changed the number of councilmen from three to five, which necessitated the redistricting of the County into five residency districts. This change was submitted to the Attorney General for preclearance, and the Attorney General did not object to the change. Subsequently, an action was brought under section 5 alleging that the 1966 change had never been submitted to the Attorney General for preclearance.

The Supreme Court reversed the three-judge court, and held that the preclearance of the 1971 change from three councilmen to five and the attendant redistricting did not have the effect of preclearing the 1966 change that instituted the County Council. McCain v. Lybrand, 465 U.S. at 249-50, 104 S.Ct. at 1045-46.

Thus, under the rule of McCain, the Attorney General could not have precleared the addition of a judgeship to a circuit — if that is itself a covered change — when he precleared the majority-vote and designated-post requirements.

13 . Assume a district with 40 minority-group voters and 60 majority-group voters where there is racial bloc voting and two seats available. If anti-single-shot provisions are in place, so that head-to-head campaigns are required, the minority group will never elect a candidate on its own without obtaining at least some majority-group votes.

However, where there are two seats available, the absence of anti-single-shot provisions may enable the minority group to elect a candidate. For example, under a scheme where voters may vote for any two from a field of four candidates, where minority voters can engage in single-shot voting, and where the highest two vote-getters win, the election results in our hypothetical district could be as follows:

minority candidate: 40 votes

non-minority candidate # 1: 50 votes

non-minority candidate #2: 35 votes

non-minority candidate # 3: 35 votes

In this situation, one minority candidate and one non-minority candidate would win, the minority voters all having voted for the minority candidate and having refused to cast any votes for majority candidates.

Although the non-minority vote need not necessarily so split, nonetheless under anti-single-shot provisions such a result would never obtain under polarized voting.

14 . See supra note 12.

15 . For example, in a district with a 30 per cent minority voting bloc, where there are only two posts, even in the absence of anti-single-shot provisions and even if the majority splits its vote with 35 per cent going to each position, the majority will defeat any minority choice which, assuming racial bloc voting, would have 30 percent of the vote at most. When a third post is added, however, the anti-single-shot provision does make a difference because in its absence minority voters could elect a candidate by concentrating all its vote on one candidate.

16 . The cannonade of the dissent is more deafening than persuasive, as the straw opinion it attacks simply is not the majority opinion. The majority had to determine whether the enactments in question have a potential for discrimination. We do not — indeed we cannot — decide whether these enactments are in fact discriminatory. If minority voters vote as a bloc, then the addition of judges can have a discriminatory effect. The dissent does not refute that assertion. Instead, it refuses to "assume that blacks or whites will always vote in racially polarized bloc patterns.” So do we. We merely note that they may vote in such a pattern, and if so, then the addition of judges may have a discriminatory effect. We do not conclude that such a voting pattern will occur, and we certainly do not hope for such a result. We may not, however, assume that such polarized voting will not occur.

It may be that the Attorney General, in reviewing the evidence of prior voting patterns (evidence the Attorney General requested and that Georgia refused to provide), will determine that the potential discriminatory effect of these changes will not be realized. That determination is for the Attorney General, not this court.

Ironically the dissent takes us to task for "supplanting the will and wisdom of the elected Legislature of Georgia ...” when it would have us disobey the "will and wisdom” of the "elected legislature” of the United States embodied in the Voting Rights Act. That we cannot do. We share the concern expressed by the dissent over the potentially troubling effects of our decision upon the state judiciary. However, after careful study of the Voting Rights Act, its legislative history, and its construction by the courts, we have concluded that the result herein is mandated by the will of Congress.

The dissent emphasizes the changing attitudes of American voters reflected in the growing number of minority elected officials. Given these changes, Judge Bowen asserts that the addition of judges actually will have no discriminatory effect and that the potential for discrimination is "imaginary.” His conclusion is based on his belief in how voters will cast their ballots. We, however, must heed the Supreme Court’s admonition in Dougherty County, Georgia, Board of Education v. White: "in determining if an enactment triggers § 5 scrutiny, the question is not whether the provision is in fact innocuous and likely to be approved, but whether it has a potential for discrimination.” 439 U.S. at 42, 99 S.Ct. at 374 (emphasis in original). The addition of judges can have such a potential, and we are not free to "imagine” otherwise.

17 . C.F.R. § 51.40 Failure to complete submissions.

If after 60 days the submitting authority has not provided further information in response to a request made pursuant to § 51.37(a), the Attorney General, absent extenuating circumstances and consistent with the burden of proof under Section 5 described in § 51.52(a) and (c), may object to the change, giving notice as specified in § 51.44.

18 . See abo 28 C.F.R. § 51.45 (procedure governing requests for reconsideration).