IN THE SUPREME COURT OF ALABAMA

No. 1000093

BRENDA O. SINGER, et al.,
Plaintiffs-Appellants,

v.

CITY OF ALABASTER, et al.,
Defendants-Appellees.

ON APPEAL FROM THE CIRCUIT COURT
OF SHELBY COUNTY, ALABAMA
(EIGHTEENTH JUDICIAL CIRCUIT)

BRIEF FOR THE UNITED STATES OF AMERICA
AS AMICUS CURIAE

BILL LANN LEE
Assistant Attorney General

MARK L. GROSS
T. CHRISTIAN HERREN, JR.
Alabama Bar No. HER025
Attorneys
Civil Rights Division
Department of Justice
P.O. Box 66128
Washington, DC 20035-6128
(202) 514-1416

Counsel for United States of America

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement of Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Interest of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

TABLE OF AUTHORITIES

Abrams v. Johnson, 521 U.S. 74 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Allen v. State Bd. of Elections, 393 U.S. 544 (1969) . . . . . . 11-13, 16-17, 19, 33

Askew v. City of Rome, 127 F.3d 1355 (11th Cir. 1997) . . . . . . . . . . . . . . . . . 35

Avery v. Midland County, 390 U.S. 474 (1968) . . . . . . . . . . . . . . . . . . . . . . . . 34

Beer v. United States, 425 U.S. 130 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Briscoe v. Bell, 432 U.S. 404 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),

aff'd, 459 U.S. 1166 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Bush v. Vera, 517 U.S. 952 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Chatman v. Spillers, 44 F.3d 923 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . 28-29

City of Pleasant Grove v. United States, 479 U.S. 462 (1987) . . . . . . . . . . . . . . . 17

City of Rome v. United States, 446 U.S. 156 (1980) . . . . . . . . . . . . . . . 24, 31, 35

City of Rome v. United States, 450 F. Supp. 378 (D.D.C. 1978),

aff'd, 446 U.S. 156 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16

City of Rome v. United States, 472 F. Supp. 221 (D.D.C. 1979)

aff'd, 446 U.S. 156 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Clark v. Calhoun County, 88 F.3d 1393 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . 35

Clark v. Roemer, 498 U.S. 953 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 28

Clark v. Roemer, 500 U.S. 646 (1991) . . . . . . . . . . . . . . . . . . . . . 17-19, 30, 33, 35

Connor v. Waller, 421 U.S. 656 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

County Council of Sumter County v. United States,

555 F. Supp. 694 (D.D.C. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Dennis v. Pendley, 518 So.2d 688 (Ala. 1987) . . . . . . . . . . . . . . . . . . . . . . 20-21

Dotson v. City of Indianola, 514 F. Supp. 397 (N.D. Miss. 1981) . . . . . . . . 25-26

Dotson v. City of Indianola, 521 F. Supp. 934 (N.D. Miss. 1981)

aff'd, 456 U.S. 1002 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Georgia v. United States, 411 U.S. 526 (1973) . . . . . . . . . . . . . . . . . . . . 14, 17, 31

Gresham v. Harris, 695 F. Supp. 1179 (N.D. Ga. 1988),

vacated, 488 U.S. 978 (1988), aff'd after remand

sub nom. Poole v. Gresham, 495 U.S. 954 (1990) . . . . . . . . . . . . . . . . . 31

Griggs v. Bennett, 710 So.2d 411 (Ala. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hadnott v. Amos, 394 U.S. 358 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Hathorn v. Lovorn, 457 U.S. 255 (1982) . . . . . . . . . . . . . . . . . . . . 18, 20, 22, 36-37

Harris v. Bell, 562 F.2d 772 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Harris v. City of Houston, 151 F.3d 186 (5th Cir.1998) . . . . . . . . . . . . . . . . 31-33

Hubbard v. City of Grenada, No. 96-172, 1998 WL 527084,

(N.D. Miss. July 1, 1998), aff'd, 525 U.S. 1038 (1998) . . . . . . . . . . . . . 27

LaRouche v. Fowler, 152 F.3d 974 (D.C. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 37

Lopez v. Monterey County, 516 U.S. 1104 (1996) . . . . . . . . . . . . . . . . . . . . . . . 19

Lopez v. Monterey County, 519 U.S. 9 (1996) . . . . . . . . . . . . . . . 12-14, 17-19, 36

Lopez v. Monterey County, 525 U.S. 266 (1999) . . . . . . . . . . . . . . . . . . . . . . . 35

LULAC of Texas v. Texas, 113 F.3d 53 (5th Cir. 1997) ,

on remand, 995 F. Supp. 719 (W.D. Tex. 1998) . . . . . . . . . . . . . . . . . . 37

Lucas v. Townsend, 486 U.S. 1301 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Marascalco v. City of Grenada, No. 00-61,

(N.D. Miss. April 27, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

McCain v. Lybrand, 465 U.S. 236 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

McCann v. Paris, 244 F. Supp. 870 (W.D. Va. 1965) . . . . . . . . . . . . . . . . . . . . . 16

McDaniel v. Sanchez, 452 U.S. 130 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Mitchell v. City of Prichard, 538 So.2d 1 (Ala. 1988) . . . . . . . . . . . . . . . . . . 21-23

Morgan v. Katzenbach, 247 F. Supp. 196 (D.D.C. 1965),

rev'd on other grounds, 384 U.S. 641 (1966) . . . . . . . . . . . . . . . . . . . . . . . 16

Morris v. Gressette, 432 U.S. 491 (1977) . . . . . . . . . . . . . . . . . . . 11-12, 14-15, 19

Morse v. Republican Party of Virginia, 517 U.S. 186 (1996) . . . . . . . . . . . . . . . 17

NAACP v. Hampton County Election Commission, 470 U.S. 166 (1985) . . . . . 31

O'Keefe v. New York City Board of Elections,

246 F. Supp. 978 (S.D.N.Y. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Perkins v. Matthews, 400 U.S. 379 (1971) . . . . . . . . . . . . . . . . . . . . 12-13, 17, 31

Reich v. Larson, 695 F.2d 1147 (9th Cir. 1983)

cert. denied, 461 U.S. 915 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Reno v. Bossier Parish School Board, 520 U.S. 471 (1997) . . . . . . . . . . . . . . . . . 11

Reno v. Bossier Parish School Board, 120 S. Ct. 866 (2000) . . . . . . . . . . . . . . . 11

Reynolds v. Katzenbach, 248 F. Supp. 593 (S.D. Ala. 1965) . . . . . . . . . . . . . . 16

Roe v. Mobile County Appointment Board, 676 So.2d 1206 (Ala. 1995)

overruled on other grounds,

Williamson v. Indianapolis Life Ins. Co.,

741 So.2d 1057 (Ala. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Sanchez v. Colorado, 97 F.3d 1303 (10th Cir. 1996),

cert. denied, 520 U.S. 1229 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Shaw v. Barr, 808 F. Supp. 461 (E.D.N.C. 1992),

rev'd on other grounds sub nom.

Shaw v. Reno, 509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Smith v. Clark, 711 So.2d 272 (La. App.2d Cir. 1996) . . . . . . . . . . . . . . . . . . . 22

South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . . . . . . . . . . 10-11, 16, 35

Theriot v. Parish of Jefferson, No. 95-2453,

1996 WL 371646 (E.D. La. July 2, 1996) . . . . . . . . . . . . . . . . . . . . . . . . 16

Turner v. Webster, 637 F. Supp. 1089 (N.D. Ala. 1986) . . . . . . . . . . . . . . . . . . 37

United States v. Board of Commissioners of Sheffield,

435 U.S. 110 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Board of Supervisors of Warren County,

429 U.S. 642 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Louisiana, 952 F. Supp. 1151 (W.D. La. 1997)

aff'd, 521 U.S. 1101 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 28

Upham v. Seamon, 456 U.S. 37 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Constitutions, Statutes, Regulations

Supremacy Clause, U.S. Const., Art. VI, Clause 2 . . . . . . . . . . . . . . . . . . . . 20, 33

13 U.S.C. 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

28 U.S.C. 1253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

28 U.S.C. 2284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Voting Rights Act, 42 U.S.C. 1973, et seq . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 1

Section 2, 42 U.S.C. 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 34

Section 5, 42 U.S.C. 1973c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Section 12, 42 U.S.C. 1973j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

Section 14, 42 U.S.C. 1973l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 16

Procedures for the Administration of Section 5, 28 C.F.R. Part 51 . . . . . . 2, 16, 17

Ala. Code 11-46-20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ala. Code 11-46-21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

Ala. Code 11-46-55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ala. Code 11-46-69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8

Legislative History

S. Rep. 162, Part 3, 89th Cong., 1st Sess. 31 (1965) . . . . . . . . . . . . . . . . . . . . . . 16

STATEMENT OF ISSUES

Whether the state trial court correctly held that an objection interposed by the Attorney General under Section 5 of the Voting Rights Act prohibited the City of Alabaster from counting votes in a city council election from an annexed area when the designation of that annexation to a city council ward had not been precleared under Section 5.

INTEREST OF THE UNITED STATES

In enacting the Voting Rights Act, 42 U.S.C. 1973 et seq., Congress placed special responsibility on the Attorney General of the United States ("Attorney General") in its enforcement. In particular, Section 5 provides that covered jurisdictions, such as the State of Alabama and its subjurisdictions, may not enforce any changes affecting voting without first receiving a "preclearance" determination from the Attorney General or, alternatively, from the United States District Court for the District of Columbia ("D.C. District Court"), that the change is not racially discriminatory in purpose or effect. The Attorney General's responsibilities under the Act include: reviewing several thousand submissions every year from covered jurisdictions seeking administrative preclearance of voting changes; defending declaratory judgment actions filed in the D.C. District Court by covered jurisdictions seeking judicial preclearance of voting changes; promulgating guidelines for interpretation of Section 5 (see Procedures for the Administration of Section 5, 28 C.F.R. Part 51); and, instituting litigation in the name of the United States to enforce the provisions of the Voting Rights Act, including Section 5 (see 42 U.S.C. 1973j(d)). For these reasons, the Attorney General seeks to ensure uniform interpretation and application of the Act. In this case in particular, plaintiffs have requested relief which directly contravenes Section 5, and the Attorney General has a strong interest in being heard on this issue.

STATEMENT OF THE FACTS

The City of Alabaster, according to the 1990 Census, has a total population of 14,732 persons, of whom 1,617 (11%) are black. C58. The City is governed by a mayor, elected by all voters citywide, and seven city councilmembers elected by voters in single-member districts (or wards). On December 30, 1991, Alabaster obtained preclearance from the Attorney General for its current mayor-council form of government, the districting plan used to elect its seven councilmembers, as well as 49 annexations adopted between 1986 and 1991. Under the City's precleared 1991 redistricting plan, one of the seven council wards (Ward 1) had a majority-black population, while the remaining six council wards have overwhelmingly white populations. C58, C76. Alabaster holds non-partisan elections for mayor and all seven councilmembers every four years, in presidential election years, on the fourth Tuesday in August. Runoff elections, if necessary because no candidate receives a majority of the votes cast, are held on the third Tuesday following the regular election. Alabaster's election date is required by Ala. Code 11-46-20(a) & 11-46-21(a) and, on information and belief, is utilized by more than 400 cities and towns in Alabama.

Between March 19, 1992 and March 16, 2000, the City of Alabaster adopted 58 new annexations (and 1 de-annexation), and designated the 58 annexations to the city's existing wards, thus changing the population and boundaries of not only the city, but also the city council wards. Of the 58 annexations, 16 were commercial areas and 42 were residential areas. Included in the 42 residential annexations were two areas, annexed in 1994 and 1996 in the Weatherly subdivision, which are at issue here. C72, C76. At the time these 58 annexations were adopted and designated to wards, the City did not seek preclearance as required under Section 5 of the Voting Rights Act.

On May 31, 2000, the Attorney General received a submission for review under Section 5 from the City of all 58 annexations, the de-annexation, and the designation of these 58 annexations to wards. On July 10, 2000, the Attorney General precleared the 16 commercial annexations (and their designation to wards) as well as the de-annexation, and requested additional information on the remaining 42 residential annexations. C72. The City provided several partial responses to the Attorney General's request between July 13 and August 16, but in view of the impending August 22 municipal election, asked the Attorney General to make an expedited decision. C76.

On August 16, the Attorney General precleared 40 of the residential annexations, along with the designation of these 40 annexations to wards. C76. However, with regard to the remaining two residential annexations in the Weatherly subdivision, the Attorney General precleared the inclusion of the two annexations in the City but objected to the designation of those two annexations to Ward 1. C76. The Attorney General's August 16 letter found that the two Weatherly annexations were roughly 99% white in voter registration, and that inclusion of these two annexations in Ward 1 would have transformed Ward 1, the City's only majority-black council ward, to majority-white in voter registration. The letter thus stated: "it appears that the retrogression caused by the proposed Ward 1 annexations would seriously threaten, if not eliminate, the only opportunity minority voters currently have to elect candidates of their choice to city office." C78. The letter also suggests this discriminatory result was avoidable, because the City had the option of assigning these two areas to either of two majority-white city council wards (Wards 2 and 6), at least one of which, Ward 6, had fewer registered voters than Ward 1. The Attorney General's letter concluded:

I am unable at this time to conclude that the City of Alabaster has carried its burden of showing that the designation of Ward 1 annexations has neither a discriminatory purpose nor a discriminatory effect. ... I must object to the designation of the annexations (Ordinance Nos. 94-338 and 96-410) to Ward 1.

... until the objection is withdrawn or a judgment from the District of Columbia Court is obtained, the objection by the Attorney General remains in effect and the designation of Ordinance Nos. 94-338 and 96-410 to Council Ward 1 continues to be legally unenforceable. ... Therefore, residents of the areas annexed by Ordinance Nos. 94-338 and 96-410 may vote for the mayoral position in the upcoming election but may not vote in the Ward 1 city council race.

C79. By letter dated August 17 (received August 18) the City of Alabaster notified the Attorney General that it proposed to comply with the objection through the following procedure in the August 22 election:

Pursuant to the letter, persons living in the two Weatherly annexed areas will be allowed to vote in the mayoral races, but will not be allowed to participate or cast officially counted votes in the Ward 1 council race. The Ward 1 council vote will be legally certified without consideration of votes of persons living in the two Weatherly annexed areas.

C81. The City indicated that the ballots for the election had already been printed and it would be "extremely difficult" to get new ballots printed just for the Weatherly voters which did not include the council contest. C82. Hence, the City planned to proceed with the election using the ballots it already had, which included both the mayoral and council contests. However, the City stated that the votes in the two annexed areas would be cast in a separate box, and "not mixed with the certified results" obtained from Ward 1. C81. Again, the City was clear, "[t]he Ward 1 council candidate having the most votes, without consideration of the desired votes from the two Weatherly annexed areas, will be certified as the winner." C81.

The City of Alabaster held its regularly scheduled municipal election on August 22. In the Ward 1 city council election, there was a contest between incumbent Bobby Lee Harris (who is the only current city councilmember who is black) and challenger Todd Goode (who is white). In that election, 613 persons voted who legally reside in the precleared areas of Ward 1. Of these voters, 326 (53%) voted for Mr. Harris, and 287 (47%) voted for Mr. Goode. C21, C60-62.

In the August 22 election, there were 103 ballots cast in the two Weatherly annexations subject to the Attorney General's August 16 objection. Of these 103 ballots, all apparently cast votes for mayor, and the City included all such votes in the official count of the mayoral election, since voting by these annexed persons in the mayoral election was precleared by the August 16 letter. C61-62. However, on 101 ballots, voters also attempted to cast votes in the Ward 1 city council election. Of these 101 ballots, all were cast for Mr. Goode. C21, C61, C111. As described in the City's August 17 letter, the ballots from the voters living in these two annexed areas were separated by the City from the ballots cast in Ward 1, and these 101 ballots were not counted by the City as part of the official total in the Ward 1 city council election. C61. As the City correctly understood, the Attorney General's August 16 objection rendered the votes sought to be cast in the Ward 1 city council election on those 101 ballots legally unenforceable (i.e., illegal) as a matter of federal law under Section 5.

On August 23, the Alabaster City Council canvassed the returns from the August 22 election as required by Ala. Code 11-46-55(a). The city council certified Mr. Harris as the winner of the Ward 1 council election based on his having received a majority of the 613 legal votes cast in Ward 1 (without including the 101 illegal votes cast in the two Weatherly annexations subject to the Section 5 objection). As provided by Ala. Code 11-46-21(c), Mr. Harris, along with the other municipal officials who won in the August 22 election or September 12 runoff, was sworn in on October 2. C61-62.

STATEMENT OF THE CASE

Four private plaintiffs brought this election contest under Ala. Code 11-46-69, against the City of Alabaster, its Mayor Steve Rauch, and Ward 1 councilmember Bobby Lee Harris, seeking to overturn the results of the August 22, 2000 Ward 1 city council election. Specifically, plaintiffs assert that the ballots cast in the Ward 1 election by voters who live in the two Weatherly annexed areas subject to the Attorney General's August 16, 2000 objection are legal and should be counted. Plaintiffs allege the City's failure to count the ballots cast in the Ward 1 city council election by voters who live in the two annexed areas at issue amounted to "[t]he rejection of legal votes" (Ala. Code 11-46-69(a)(4)) and "[m]isconduct ... on the part of any election official, any marker, the municipal governing body or any other person" (Ala. Code 11-46-69(a)(1)), and justified the state court overturning the election. C5. Plaintiffs also assert claims under the state and federal constitutions and Section 2 of the Voting Rights Act, 42 U.S.C. 1973. C5. Plaintiffs seek preliminary and permanent injunctive relief which would: 1) prevent Mr. Harris from taking office; 2) set aside the August 22 council election in Ward 1; and, 3) direct the City to recount the ballots in the Ward 1 election and recertify the results after including the votes cast by the persons living in the two annexed areas subject to the Attorney General's August 16 objection. C6. In essence, the plaintiffs seek to have this Court simply ignore the Attorney General's August 16 objection interposed under Section 5.

Defendants filed motions to dismiss, asserting that the state court lacked subject matter jurisdiction under Section 5 of the Voting Rights Act. The trial court held a hearing on the pending motions on September 18, 2000, and entered its order on September 22, 2000, granting the defendants' motions to dismiss. C109-11. The court found that it was undisputed that the election in question was covered by the preclearance requirements of Section 5 and that the City had received preclearance from the Attorney General for voters in the two Weatherly annexations to vote in mayoral elections, but had failed to receive preclearance for these voters to vote in city council elections in Ward 1. The court further found that this Court had held that Congress granted exclusive jurisdiction to the Attorney General and the District Court for the District of Columbia to determine whether covered voting changes could be precleared and implemented, and that state courts lacked jurisdiction over such Section 5 questions. The court thus held that all of the relief sought by plaintiffs in this action "would only be available through disregarding the clearly established federal law." C111. Plaintiffs filed their notice of appeal on October 6, 2000. C112.

ARGUMENT

This case concerns the enforcement of Section 5 of the Voting Rights Act. Although plaintiffs deny that this case involves an interpretation of Section 5, and deny that it involves an effort to preclear a voting change under Section 5, the only relief that their complaint seeks would effectively overturn an objection interposed by the Attorney General under Section 5. Indeed, as drafted, plaintiffs' complaint is essentially a collateral attack on the Attorney General's objection, and asks this Court to implement a voting change that the Attorney General has determined would violate Section 5 by causing prohibited retrogression in the opportunity for black voters in Alabaster to elect a candidate of their choice in city elections. Although the Attorney General precleared the inclusion the two Weatherly annexations in the City of Alabaster, the Attorney General objected to inclusion of the Weatherly annexations in Ward 1. As a consequence, as a matter of federal law under Section 5, the City's assignment of these two annexed areas of Ward 1 is a nullity unless and until preclearance is obtained for that change. Under the Voting Rights Act, the only Court with jurisdiction to preclear implementation of a voting change by a covered jurisdiction is the D.C. District Court. Hence, the trial court correctly concluded the relief plaintiffs' request could only be granted though disregard of federal law.

1. Congress enacted the Voting Rights Act to "rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966). Section 5 was an integral part of the Act, designed "to shift the advantage of time and inertia from the perpetrators of the evil to its victim[s], by freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory." Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 477 (1997) (citations omitted). Section 5 "automatically suspends the operation of voting regulations enacted after November 1, 1964, and furnishes mechanisms for enforcing the suspension," "pending scrutiny by federal authorities to determine whether their use would violate the Fifteenth Amendment." Katzenbach, 383 U.S. at 334-35. (1) Substantively, Section 5 is aimed at preventing implementation of voting changes which would lead to a "retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise," Beer v. United States, 425 U.S. 130, 141 (1976), i.e., changes which in purpose or effect would "worsen the position of minority voters." Reno v. Bossier Parish Sch. Bd., 120 S. Ct. 866, 869 (2000).

The Voting Rights Act sets forth a unique statutory scheme for resolving issues which arise under the preclearance provisions. The Act provides for a clear division of jurisdiction between "'substantive discrimination' questions" and "'coverage' questions.'" Allen v. State Bd. of Elections, 393 U.S. 544, 560 (1969). "Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General ... the determination whether a covered change does or does not have the purpose or effect 'of denying or abridging the right to vote on account of race or color.'" Perkins v. Matthews, 400 U.S. 379, 385 (1971). Thus, the Attorney General and the D.C. District Court have "exclusive authority," Lopez v. Monterey County, 519 U.S. 9, 23 (1996), to make the substantive preclearance determination of "whether a proposed change actually discriminates on account of race," United States v. Bd. of Supervisors of Warren County, 429 U.S. 642, 645 (1977) - a determination which is "foreclosed" to any other court. Perkins, 400 U.S. at 385. Pursuant to Sections 5 and 14(b) of the Act, 42 U.S.C. 1973c, 1973l(b), covered jurisdictions seeking preclearance of a new voting change have a choice of filing a declaratory judgment action in the D.C. District Court, or making an administrative submission to the Attorney General, who has 60 days to act on a completed submission. Morris, 432 U.S. at 501-02, 504 n.19, 505 n.21.

By contrast, local federal district courts convened in jurisdictions covered by Section 5 may consider only "coverage" questions - "whether a particular state enactment is subject to the provisions of the Voting Rights Act, and therefore must be submitted for approval before enforcement." Allen, 393 U.S. at 559-60. Pursuant to Sections 12(d) & (f) of the Act, 42 U.S.C. 1973j(d) & (f), the United States and/or private plaintiffs can bring such coverage actions to enjoin enforcement of unprecleared changes. In such lawsuits, a federal district court sitting in a covered jurisdiction, "lacks authority to consider the discriminatory purpose or nature of the changes" and "may determine only whether 5 covers a contested change, whether 5's approval requirements were satisfied, and if the requirements were not satisfied, what temporary remedy, if any, is appropriate" until the change is precleared or abandoned. Lopez, 519 U.S. at 23-24. (2)

Section 5 "places the burden on the affected polities to submit all changes for prior approval" for the simple reason that "Section 5 was enacted in large part because of the acknowledged and anticipated inability of the Justice Department--given limited resources--to investigate independently all changes with respect to voting enacted by States and subdivisions covered by the Act." Perkins, 400 U.S. at 392 n.10. Section 5 also places the burden on the covered jurisdiction of proving that the change is not discriminatory. "[I]rrespective of which avenue of preclearance the covered jurisdiction chooses, it has the same burden of demonstrating that the changes are not motivated by a discriminatory purpose and will not have an adverse impact on minority voters." McCain v. Lybrand, 465 U.S. 236, 247 (1984). See also Georgia v. United States, 411 U.S. 526, 538 (1973).

Once a covered jurisdiction submits a voting change to the Attorney General, the administrative decision that results determines the course of future legal action regarding the change. If the Attorney General preclears a voting change, " 5 provides no further remedy," Lopez, 519 U.S. at 23, because the Attorney General's determination is not judicially reviewable. Morris, 432 U.S. at 506-07 & n.24 ("Where the discriminatory character of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation. But it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under 5, or his failure to object within the statutory period. ... we think Congress intended to preclude all judicial review of the Attorney General's exercise of discretion or failure to act"). (3)

If, however, as here, the Attorney General objects to a voting change, the covered jurisdiction can seek still preclearance from the D.C. District Court. "After receiving an objection from the Attorney General, a covered jurisdiction retains the option of seeking a favorable declaratory judgment from the District Court for the District of Columbia." Morris, 432 U.S. at 505 n.21. The role of the D.C. District Court is not to review the Attorney General's objection (because that determination is likewise judicially unreviewable), but to consider de novo whether the change should be precleared. See County Council of Sumter County v. United States, 555 F. Supp. 694, 706 (D.D.C. 1983) (three-judge court) ("we have no authority either to review, or to preview, decisions of the Attorney General under Section 5. ... this Court's role under Section 5 of the Act is to examine the change de novo as an alternative to the Attorney General's decision regarding preclearance"). See also City of Rome v. United States, 450 F. Supp. 378, 381-82 & n.3 (D.D.C. 1978) (three-judge court) ("a decision by the Attorney General to interpose an objection to proposed electoral changes, as in the instant case, was also not intended to be subject to judicial review .... Congress has neither totally insulated the Attorney General's actions from judicial scrutiny nor totally deprived plaintiffs of judicial redress. Congress merely has established an exclusive means of obtaining 'review' of the Attorney General's determination a de novo proceeding in the District Court for the District of Columbia"), aff'd, 446 U.S. 156 (1980).

Finally, under Section 14(b) of the Act, (4) courts have uniformly held that all challenges to the Voting Rights Act or the actions taken by the Attorney General in implementing the Act must be heard in the D.C. District Court. (5)

2. The preclearance requirement of Section 5 covers the State of Alabama, and all of its political subjurisdictions, such as the City of Alabaster, for all voting changes enacted or implemented after November 1, 1964. See 28 C.F.R. Part 51, Appendix; United States v. Bd. of Commissioners of Sheffield, 435 U.S. 110, 114 n.2, 135 (1978).

Section 5 also clearly covers the voting changes at issue here. Annexations are covered by Section 5. City of Pleasant Grove v. United States, 479 U.S. 462, 467-68 (1987); Perkins, 400 U.S. at 388-89. Changes in the boundaries of election districts are also covered by Section 5. Georgia, 411 U.S. at 531-32. See also 28 C.F.R. 51.13(e). (6)

It is also clear that the voting changes at issue here (the designation of the two Weatherly annexations to Ward 1) have not received the required preclearance under Section 5, and indeed they are subject to an objection interposed by the Attorney General. C76.

3. A voting change which has not been precleared cannot legally be implemented. The application of Section 5 in this regard is set forth in the Supreme Court's unanimous decisions in Lopez v. Monterey County, 519 U.S. 9 (1996) and Clark v. Roemer, 500 U.S. 646 (1991). "A jurisdiction subject to 5's requirements must obtain either judicial or administrative preclearance before implementing a voting change." Lopez, 519 U.S. at 20. "A voting change in a covered jurisdiction 'will not be effective as la[w] until and unless cleared' pursuant to one of these two methods." Clark, 500 U.S. at 652, quoting, Connor v. Waller, 421 U.S. 656 (1975). "Failure to obtain either judicial or administrative preclearance 'renders the change unenforceable.'" Clark, 500 U.S. at 652, quoting, Hathorn v. Lovorn, 457 U.S. 255, 269 (1982).

In Clark, the Supreme Court held that a federal court cannot allow a covered jurisdiction to hold elections in which unprecleared voting changes will be implemented: "faced [with] the ex ante question whether to allow illegal elections to be held at all. ... 5's prohibition against implementation of unprecleared changes required the District Court to enjoin the election. This is especially true because ... the Attorney General interposed objections before the election." Clark, 500 U.S. at 654. (7) In Lopez, the Supreme Court held that a federal court cannot order, under its equitable remedial authority, a covered jurisdiction to hold an election which will implement unprecleared changes. Lopez, 519 U.S. at 22 ("It was, therefore, error for the District Court to order elections under that system before it had been precleared...."). (8)

Where covered jurisdictions seek to implement unprecleared changes in elections, the United States or private plaintiffs can bring an enforcement action under Section 5 to convene a three-judge federal district court to prevent implementation of that change. "If a voting change subject to 5 has not been precleared, 5 plaintiffs are entitled to an injunction prohibiting implementation of the change." Lopez, 519 U.S. at 20. See also Clark, 500 U.S. at 652-53; Allen, 393 U.S. at 571-72. The issuance of such injunctions is mandatory. (9)

4. Under the Supremacy Clause, (10) state courts also lack authority to grant relief which would circumvent the preclearance requirements of Section 5. In Hathorn v. Lovorn, 457 U.S. 255 (1982), the United States Supreme Court reversed a decision of the Mississippi Supreme Court which had ordered implementation of a voting change without considering whether the change violated the preclearance requirement of Section 5. Because "[s]tate courts, like federal courts, have a constitutional obligation ... to uphold federal law," it follows that "[w]hen a party to a state proceeding asserts that 5 renders the contemplated relief unenforceable ... the state court must examine the claim and refrain from ordering relief that would violate federal law." Hathorn, 457 U.S. at 269-70 (citations omitted). Hence, the Court held, "the change in election procedure is subject to 5 ... and the Mississippi courts may not further implement that change until the parties comply with 5." Hathorn, 457 U.S. at 270.

This Court has recognized on several occasions that "Section 5 of the Voting Rights Act of 1965 requires that states covered by the Act obtain prior clearance before proposed changes can be put into effect." Dennis v. Pendley, 518 So. 2d 688, 689 (Ala. 1987). (11) This Court has also observed that municipal annexations and de-annexations are "subject to Section 5." Mitchell v. City of Prichard, 538 So. 2d 1, 2 (Ala. 1988). Indeed, this Court has specifically recognized that Section 5 preclearance must be obtained for an annexation before it is legal for election purposes. Dennis, 518 So. 2d at 690 ("The required approval was received prior to the municipal option election; therefore, the annexation was legal at the time of the election").

Moreover, as the trial court in the present case recognized, this Court has held that "cases involving the interpretation of the preclearance requirements of Section 5 of the federal Voting Rights Act are within the exclusive jurisdiction of the federal courts." Mitchell, 538 So. 2d at 2. In Mitchell, a certain territory (designated as "Area A") was de-annexed from the City of Mobile in 1966, annexed into the City of Prichard in 1967, and de-annexed from Prichard in 1971. All of these boundary changes were subject to Section 5 but not submitted for preclearance until many years later, whereupon the Attorney General precleared the 1966 de-annexation from Mobile and the 1967 annexation to Prichard, but objected to the 1971 de-annexation from Prichard. Therefore, under Section 5, "Area A" was legally a part of Prichard as a matter of federal law for voting purposes. The plaintiffs in Mitchell brought state law claims seeking declaratory relief that "Area A" should not be a part of Prichard. In effect, plaintiffs in Mitchell were seeking to overturn or nullify the effect of the Attorney General's objection to the 1971 de-annexation. The trial court in Mitchell concluded that "any attack upon, or construction of, the ruling of the Justice Department with regard to the 1971 deannexation of Area 'A' is properly brought in a three-judge Federal Court under Section 5." 538 So. 2d at 2. On appeal, this Court affirmed that dismissal for lack of subject-matter jurisdiction, concluding that the claims fell within federal court jurisdiction. Id. (12)

The trial court here correctly concluded that Mitchell controls this case. Here, just as in Mitchell, plaintiffs effectively seek to overturn or nullify an objection interposed by the Attorney General under Section 5, because plaintiffs seek implementation of precisely the same unprecleared change (voting by residents of two annexed areas in Ward 1 city council elections) which the Attorney General's objection rejected. And, just as in Mitchell, a state court has no authority to order such relief. The only court that can preclear implementation of the voting change at issue is the D.C. District Court.

5. Case law discloses numerous instances, similar to the present one, in which the Attorney General has interposed an objection under Section 5 (including instances when a submission is objected to in part, and precleared in part), and the question posed is whether and in what manner should a jurisdiction proceed with elections. The rule that emerges from these cases is that Section 5 is not intended to stop elections from being held, but instead intended to prevent new voting changes from being implemented in these elections without preclearance. Hence, courts have often ordered elections to proceed in so far as the jurisdiction implements only precleared voting practices, and enjoined implementation of unprecleared or objected-to changes. In these instances, voters living in precleared areas may be treated in one way, while voters living in unprecleared areas are treated in another. Many of these orders have been affirmed by the Supreme Court, which has never suggested the presence of an equal protection violation.

In City of Rome v. United States, 446 U.S. 156, 161-62, 187 (1980), the City of Rome, Georgia, submitted 60 annexations for Section 5 review. The Attorney General initially precleared 47 annexations, and objected to 13. On reconsideration, the Attorney General precleared the 13 annexations for purposes of voting in school board elections but not for purposes of voting in city commission elections. The City filed a declaratory judgment action in the D.C. District Court, which, after a de novo proceeding, reached the same conclusion. On appeal, the Supreme Court affirmed. During this dispute, the City of Rome did not hold any elections for at least six years. This led city officials to challenge the constitutionality of Section 5. The Supreme Court observed:

As their final constitutional challenge to the Act ... the individual appellants argue that, because no elections have been held in Rome since 1974, their First, Fifth, Ninth, and Tenth Amendment rights as private citizens of the city have been abridged. In blaming the Act for this result, these appellants identify the wrong culprit. The Act does not restrict private political expression or prevent a covered jurisdiction from holding elections; rather, it simply provides that elections may be held either under electoral rules in effect on November 1, 1964, or under rules adopted since that time that have been properly precleared. When the Attorney General refused to preclear the city's electoral changes, the city had the authority to conduct elections under its electoral scheme in effect on November 1, 1964. Indeed, the Attorney General offered to preclear any technical amendments to the city charter necessary to permit elections under the pre-existing scheme or a modification of that scheme consistent with the Act. In these circumstances, the city's failure to hold elections can only be attributed to its own officials, and not to the operation of the Act.

Id. at 182-83 (emphasis supplied). (13)

In Dotson v. City of Indianola, 514 F. Supp. 397 (N.D. Miss. 1981) (three-judge court), the City of Indianola, Mississippi, adopted four annexations between 1965 and 1967, and implemented them without first securing preclearance. A Section 5 enforcement action was brought, and the District Court held that "[u]nless and until the City obtains clearance of its post-Act annexations in accordance with Section 5, all future elections must be conducted on the basis of the city boundaries as they existed before the unprecleared annexations were made, and citizens residing in such annexed areas may not participate in future municipal elections, either as electors or as candidates." 514 F. Supp. at 403. After the City submitted the four annexations for Section 5 review, the Attorney General precleared three of the annexations, but objected to the fourth. The City argued that the Attorney General's objection to only part of a submission was invalid, and thus that the City should be able to treat all four areas as unprecleared, and thus revert to holding elections under its pre-1964 boundaries. The District Court disagreed, concluding that "there can be no judicial review of the Attorney General's action in preclearing three annexations while objecting to one," that the City's "sole remedy at this juncture" is to seek judicial preclearance of the objected-to annexation in the D.C. District Court, and that separate preclearance would be required if the City sought to hold elections without including the three precleared annexed areas. Dotson v. City of Indianola, 521 F. Supp. 934, 943 (N.D. Miss. 1981) (three-judge court), aff'd, 456 U.S. 1002 (1982). The District Court found that "it would be manifestly unjust to all persons legally entitled to vote for us to delay elections in order to give the City another opportunity to seek preclearance of the [objected-to] annexation." 521 F. Supp. at 944. Hence, the District Court ordered elections to "proceed as scheduled," allowing all the electors within the pre-annexation city limits and the three precleared annexed areas to vote, but "precluding from voting or running for office only those electors residing in the [objected-to] annexation." Id. at 943-44. This injunction in fact had the effect of preventing three of Indianola's five incumbent councilmembers from running for re-election because they resided in the unprecleared annexed area. Id. at 939-40, 944.

In Hubbard v. City of Grenada, No. 96-172, 1998 WL 527084 (N.D. Miss. July 1, 1998) (three-judge court), aff'd, 525 U.S. 1038 (1998), the City of Grenada, Mississippi, adopted a large annexation and a new redistricting plan to include that annexation, but failed to received preclearance from the Attorney General. After a period of several years in which the City did not hold elections, the District Court ordered the City to conduct elections under its last precleared districting plan, even though the voters in the unprecleared annexed area would not be allowed to vote. The District Court in Hubbard concluded:

The time has come, however, to move forward and to allow the citizens of Grenada the opportunity to vote under the only valid plan now in existence. ... The court recognizes that [the 1991] plan omits from participation those citizens who were annexed into the city in 1996 but finds that it cannot further delay the other citizens of Grenada from exercising their right to cast votes for candidates of their choice when neither the annexation nor the proposed redistricting plan has been precleared and defendants have not moved quickly in fulfilling their obligations under Section 5.

Id. at *3-*4. The residents living in the unprecleared annexed area subsequently brought suit against the City of Grenada, much like the plaintiffs here, seeking to stop the 2000 city election or to force their inclusion in the city electorate prior to the election being held. The federal court denied preliminary relief and thereafter the plaintiffs dismissed their claim. Marascalco v. City of Grenada, No. 00-61 (N.D. Miss. April 27, 2000) (three-judge court) (unpublished order).

In Clark v. Roemer, 498 U.S. 953 (1990), order modified, 498 U.S. 954 (1990), the Supreme Court allowed elections to go forward for certain judicial positions in Louisiana which had been precleared by the Attorney General, but not for other judicial positions which had not been precleared. This resulted, at least in the short term, in some voters in Louisiana being able to vote for new judicial positions, while other voters could not.

In United States v. Louisiana, 952 F. Supp. 2d 1151, 1179 (W.D. La. 1997) (three-judge court), aff'd, 521 U.S. 1101 (1997), the Attorney General had precleared more than 300 annexations for purposes of voting in Shreveport City Council elections, but later objected to these same annexations for purposes of voting in Shreveport City Court elections. The District Court thus granted an injunction which prevented the annexed persons from voting for city court positions, but which allowed these same persons to continue voting for city council positions. And, in Chatman v. Spillers, 44 F.3d 923 (11th Cir. 1995), the City of Butler, Georgia, submitted a consent decree to the Attorney General for Section 5 administrative review which changed the method of electing the City Council from at-large to multi-member districts and changed the method of electing the Mayor from plurality-vote to majority-vote. The Attorney General precleared the part of the consent decree which changed the method of electing the council but objected to the part which changed the method of electing the mayor. Thereafter, the City continued its refusal to hold elections. The Eleventh Circuit thus ordered an election to be held which implemented the new precleared district method of electing the City Council along with the old benchmark plurality-vote method of electing the Mayor.

Taken together, the cases discussed above demonstrate that the City of Alabaster's actions in the August 22, 2000 election were consistent with the case law under Section 5, which allows jurisdictions to proceed with elections so long as they implement only voting practices which have been precleared under Section 5. These cases also dispose of the allegation made at many points in plaintiffs' brief that the City of Alabaster implemented an "unprecleared" districting plan in its August 22 election. The City implemented only its 1991 precleared districting plan, as modified by the one precleared de-annexation, the 16 precleared commercial annexations along with their precleared designations to wards, and the 40 precleared residential annexations along with their precleared designations to wards. The City also implemented the two Weatherly annexations, but only to the precleared extent of allowing those voters to vote in mayoral elections. The City did not implement the only unprecleared change, namely, the objected-to designation of the two Weatherly annexations to Ward 1. Section 5 provided no barrier to the City proceeding with all of its precleared voting practices, and provided no basis for halting the election since the City did not implement the only unprecleared objected-to change.

6. Plaintiffs have suggested, that at the time of the Attorney General's Section 5 determination on Wednesday, August 16, 2000, the City of Alabaster had three options with respect to the election scheduled for Tuesday, August 22, 2000: 1) proceeding with the election and defying Section 5 by implementing the objected-to changes; 2) proceeding with the election without implementing the objected-to changes (as the City actually did and as the plaintiffs challenge); or, 3) canceling the election until some unspecified future date.

Defiance of Section 5 was clearly not an option. Had the City indicated that it planned to count officially the votes from the objected-to annexed areas in the Ward 1 council election, the United States and/or private plaintiffs could have brought a Section 5 enforcement action against the City and would have been entitled to an immediate injunction against implementation of the objected-to changes. Clark, 500 U.S. at 652-54. Such an injunction likely would have allowed the City to proceed with the election using the precleared changes, but not the unprecleared changes, in the same manner as the City of Alabaster actually did. City of Rome, 446 U.S. at 183-84.

It is true that there were a number of other possible options open to the City, such as cancellation of the election, assignment of the annexed voters in the Weatherly subdivision to another city council ward, or de-annexation of the annexed areas. However, any of these alternatives would have required preclearance under Section 5 from the Attorney General or the D.C. District Court before they could be implemented. See NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 178 (1985) (change of election date is covered); Gresham v. Harris, 695 F. Supp. 1179, 1183-84 (N.D. Ga. 1988) (three-judge court), vacated, 488 U.S. 978 (1988), aff'd after remand sub nom. Poole v. Gresham, 495 U.S. 954 (1990) (cancellation of election is covered); Georgia, 411 U.S. at 531-32 (redistricting is covered); Perkins, 400 U.S. at 388-89 (change in municipal boundaries is covered). While the Attorney General was certainly open to giving expedited consideration of any of these alternatives prior to the election, and indeed was hopeful that one of them would be adopted, the available five-day time period for adopting these changes, obtaining preclearance, and implementing them was admittedly limited.

Plaintiffs also present several flawed arguments (Pl. Br. 24-26) which appear to be drawn almost verbatim from a dissenting opinion in a case they fail to cite, Harris v. City of Houston, 151 F.3d 186, 196-97 (5th Cir. 1998) (DeMoss, J., dissenting). These arguments suggest, among other things, that the right of annexed residents to vote in city elections is not contingent on Section 5 preclearance, and that the language of Section 5 indicates the City violated the preclearance requirement in holding its August 22 election.

In Harris, residents of an area annexed to the City of Houston sued the City, claiming that the City's conduct of two local elections before preclearance was granted to the annexation, and thus before the annexed voters could legally vote in the election, violated their constitutional rights. The majority opinion in Harris dismissed their challenge, finding it moot after preclearance was granted, and in so doing stated:

Harris cannot refute the plain language of 42 U.S.C. 1973, providing that certain statutory boundary changes have 'no legal effect' with regard to conferring the franchise until precleared by the Attorney General.

Harris, 151 F.3d at 191 n.6. Obviously, the holding of Harris, set forth in the majority opinion, is consistent with the interpretation of Section 5 in the federal cases, and the cases from this Court, set forth above. Those cases demonstrate that plaintiffs here have no right to vote in Ward 1 absent preclearance of the inclusion of the two annexed areas in that ward. (14)

7. Plaintiffs cannot prevail on their state law election contest claim or their state constitutional claims. Under the Supremacy Clause, lack of preclearance under a federal law (Section 5) as reflected in the Attorney General's August 16 objection, renders "illegal" (in the language of Clark) any votes cast by the residents of the two annexed areas of the Weatherly subdivision in the August 22 Ward 1 city council election, because the designation of those two annexed areas to Ward 1 is legally unenforceable as a matter of federal law. Plaintiffs and the other residents of the Weatherly annexed areas are not legally residents of Ward 1 for voting purposes, they cannot cast "legal" votes in the city council election in Ward 1 and the City committed no "misconduct" in failing to include those votes in the official Ward 1 city council election results. The City could not implement a voting change which is covered by Section 5 and which is unprecleared (and thus legally unenforceable), and the City had no choice but to comply with federal law under Section 5 and with the Attorney General's objection. Section 5 thus preempts plaintiffs' state election contest and state constitutional claims. (15)

Plaintiffs also cannot prevail on their federal constitutional claim because the City did not violate the constitutional rights of the voters living in the Weatherly annexed areas. "The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious." Avery v. Midland County, 390 U.S. 474, 484 (1968). The distinction which the City drew between those voters whose assignment to council districts had been precleared and thus were allowed to vote in city council elections, and those voters whose assignment to city council districts had not been precleared, and thus were not allowed to vote in city council elections, was justified by the City's compelling interest in complying with the Voting Rights Act. (16) The Supreme Court has upheld the constitutionality of Section 5 on several occasions. See Lopez v. Monterey County, 525 U.S. 266, 282-83 (1999); City of Rome v. United States, 446 U.S. 156, 178-83 (1980); South Carolina v. Katzenbach, 383 U.S. 301, 334-35 (1966). The Supreme Court has likewise made clear that covered jurisdictions must comply with Section 5's prohibition against implementing voting changes absent preclearance. Clark, 500 U.S. at 652. The distinction the City of Alabaster drew was also narrowly tailored in that it affected only those voters who lived in the two annexed areas which are subject to the Attorney General's objection, and affected them only to the extent of the lack of preclearance (i.e., they could vote for mayor but not for city council). Far from being an "arbitrary" or "invidious" distinction between voters, the distinction the City drew was one well grounded - indeed, required - in federal law. Plaintiffs cite no case in which a court has found a constitutional denial of the right to vote flowing out of the operation of the preclearance requirement of Section 5. Nor are we aware of any such case in the 35 years in which Section 5 has been in effect.

8. As outlined above, there is clearly no legal basis on which plaintiffs could prevail on their claims. However, we note that even if plaintiffs were able to demonstrate a denial of their constitutional rights, they still would not be entitled to the specific relief they have requested. It does not follow logically that even if these annexed voters may get to vote in one of the seven council wards in Alabaster, that it necessarily has to be in Ward 1. There is neither a basis, nor a need, for relief which is flatly inconsistent with the Attorney General's objection under Section 5 since the City has alternatives available, such as designating the voters in the two annexed areas to other city council districts, such as Wards 2 or 6, that should not occasion a statutorily prohibited retrogression in minority voting strength.

Three related lines of cases support this conclusion. First, no court (state or federal) could order, as part of a remedial plan, implementation of the same voting changes to which the Attorney General has objected, Lopez, 519 U.S. at 22, or voting changes which were otherwise unprecleared, Hathorn, 457 U.S. at 269-70. Second, even if a state court did order or allow implementation of unprecleared changes as part of a remedial order, under Hathorn that state court decision itself would be subject to preclearance and could not legally be implemented until preclearance was obtained. (17) Indeed, preclearance even applies to a voting remedy adopted by a jurisdiction in response to a federal court finding that the prior plan is unconstitutional, so long as the remedy represents "the policy choices of the elected representatives of the people." McDaniel v. Sanchez, 452 U.S. 130, 153 (1981). Third, under the principles which govern court-ordered relief in voting cases, no court (state or federal) could fashion a remedial plan which would otherwise be retrogressive, irrespective of whether the court's plan would itself be subject to preclearance, where non-retrogressive alternatives exist. Abrams v. Johnson, 521 U.S. 74, 95-97 (1997); McDaniel, 452 U.S. at 148-49; Upham v. Seamon, 456 U.S. 37, 43 (1982).

9. If plaintiffs had sought relief which did not violate Section 5, such as designation of the voters in the two unprecleared areas to a city council ward other than Ward 1, contingent on Section 5 preclearance being granted by the Attorney General or the D.C. District Court, this might well be a different case. However, irrespective of whether plaintiffs tender a proper claim, the Attorney General believes that this matter can be resolved at any time through an expeditious settlement that will afford the residents of these two annexed areas immediate representation on the Alabaster City Council and the opportunity to vote for city council in the next municipal election. The very fact that the Attorney General precleared the inclusion of these two annexations in the City while objecting only to the designation of these areas to Ward 1, rather than objecting entirely to inclusion of these annexations in the City, suggests that we believe that these two annexations could be assigned to another city council ward. As the Attorney General's letter indicates, there are alternatives to designating the voters in these two annexed areas to Ward 1 for city council representation, such as designating these areas to Wards 2 or 6, as the City itself considered doing. The designation of the two annexed areas to one of these two majority-white wards should resolve the retrogression concern which arose with regard to assigning these voters to Ward 1, which is a majority-black ward. At the very least, these voters can be assigned to a different ward when the 2000 Census redistricting data are released on April 1, 2001, a little more than three months from now. See 13 U.S.C. 141(c). Alabaster will no doubt have to redistrict its council districts to meet the constitutional one-person one-vote requirement after the 2000 Census data becomes available since estimates by the City and by the Census indicate that Alabaster has experienced very substantial population growth since 1990. C77. The Attorney General stands ready to consider expeditiously any alternative the City wishes to propose now or in the future to cure the August 16 objection.

CONCLUSION

For the foregoing reasons, the trial court's decision to grant defendants' motions to dismiss plaintiffs' complaint was correct, and the decision should be affirmed.

Respectfully submitted,

BILL LANN LEE
Assistant Attorney General

MARK L. GROSS
T. CHRISTIAN HERREN, JR.
Alabama Bar No. HER025
Attorneys
Civil Rights Division
Department of Justice
P.O. Box 66128
Washington, DC 20035-6128
(202) 514-1416

Counsel for United States of America

December 28, 2000

CERTIFICATE OF SERVICE

I hereby certify that on December 28, 2000, I served the foregoing Motion to Participate as Amicus Curiae and Brief for the United States as Amicus Curiae, by sending copies via Federal Express Overnight Delivery to the following counsel of record:

Counsel for Plaintiffs                                                          Counsel for Defendant Harris
Raymond P. Fitzpatrick, Jr., Esq.                                            Edward Still, Esq.
R. Scott Clark, Esq.                                                               Voting Rights Project
Gary L. Brown, Esq.                                                              Lawyers' Committee for
Fitzpatrick, Cooper & Kelly                                                    Civil Rights Under Law
Farley Building, Suite 600                                                       1401 New York Avenue, NW
1929 Third Avenue North                                                       Suite 400
Birmingham, AL 35203                                                          Washington, DC 20005

Counsel for Defendant City of                                             Samuel T. Reaves, Esq.
Alabaster & Defendant Rauch                                             Kennedy, Covington,
J. Frank Head, Esq.                                                               Lobdell & Hickman
Wallace, Ellis, Fowler & Head                                                Bank of America
111 North Main Street                                                            Corporation Center
Columbiana, AL 35051                                                           Suite 4200
                                                                                             100 North Tyron Street
                                                                                             Charlotte, NC 28202-4006

T. CHRISTIAN HERREN, JR
Alabama Bar No. HER025
Attorney, Voting Section
Civil Rights Division
Department of Justice
P.O. Box 66128
Washington, D.C. 20035-6128

(202) 514-1416

1. See also Morris v. Gressette, 432 U.S. 491, 501-02 (1977) ("Section 5 requires covered jurisdictions to delay implementation of validly enacted state legislation until federal authorities have had an opportunity to determine whether that legislation conforms to the Constitution and to the provisions of the Voting Rights Act.")

2. Congress has emphasized the importance of the issues at stake in Section 5 cases by providing that both coverage determinations in local federal courts, and substantive preclearance determinations in the D.C. District Court, must be heard and determined by three-judge federal district courts, with direct appeals of right to the United States Supreme Court. 42 U.S.C. 1973c; Allen, 393 U.S. at 560-63. This represents one of the few remaining areas of federal law in which such a system still exists. 28 U.S.C. 1253 & 2284.

3. See also Briscoe v. Bell, 432 U.S. 404 (1977) (discussing Morris); Harris v. Bell, 562 F.2d 772 (D.C. Cir. 1977).

4. Section 14(b) provides "[n]o court other than the District Court for the District of Columbia ... shall have jurisdiction to issue any declaratory judgment pursuant to section 1973b or 1973c of this title or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of subchapters I-A to I-C of this chapter or any action of any Federal officer or employee pursuant hereto." 42 U.S.C. 1973l(b). See also S. Rep. No. 162, Part 3, 89th Cong., 1st Sess. 31 (1965) ("All challenges to the constitutionality or legality of any provision of this bill or any action taken pursuant to it must be litigated in the District Court for the District of Columbia").

5. See Shaw v. Barr, 808 F. Supp. 461, 466-67, 474 (E.D.N.C. 1992) (three-judge court), rev'd on other grounds sub nom. Shaw v. Reno, 509 U.S. 630, 637-38, 641 (1993) (agreeing with District Court on Section 14(b) issue); Allen, 393 U.S. at 557-58; Morgan v. Katzenbach, 247 F. Supp. 196, 198-99 (D.D.C. 1965) (three-judge court), rev'd on other grounds, 384 U.S. 641, 645-46 & n.4 (1966) (agreeing with District Court on Section 14(b) issue); Reich v. Larson, 695 F.2d 1147 (9th Cir. 1983), cert. denied, 461 U.S. 915 (1983); Theriot v. Parish of Jefferson, No. 95-2453, 1996 WL 371646 (E.D. La. July 2, 1996); McCann v. Paris, 244 F. Supp. 870 (W.D. Va. 1965); O'Keefe v. New York City Bd. of Elections, 246 F. Supp. 978 (S.D.N.Y. 1965); Reynolds v. Katzenbach, 248 F. Supp. 593 (S.D. Ala. 1965) (three-judge court). The Supreme Court has upheld the restriction of jurisdiction to the D.C. Court contained in Section 14(b). Katzenbach, 383 U.S. at 331-32, 335.

6. Because the voting changes here are clearly covered, we merely note for background purposes that "Congress intended 5 to have 'the broadest possible scope' reaching 'any state enactment which altered the election law of a covered State in even a minor way.'" Morse v. Republican Party of Virginia, 517 U.S. 186, 203 (1996), quoting, Allen, 393 U.S. at 566-67.

7. In Clark, the Supreme Court held that a federal district court had erred by failing to enjoin elections for judgeships to which the Attorney General had interposed Section 5 objections. To correct the error, the Supreme Court granted an injunction pending appeal which halted elections for the unprecleared judgeships only four days prior to their scheduled date. Clark, 498 U.S. 953 (1990), order modified, 498 U.S. 954 (1990); see also 500 U.S. at 651.

8. In Lopez, the Supreme Court held that a federal district court had erred in ordering a covered jurisdiction to hold an election using an unprecleared at-large election plan for judicial positions. To correct this error, the Supreme Court granted an injunction pending appeal halting elections roughly one month before they were scheduled to be held. Lopez, 516 U.S. 1104 (1996); see also 519 U.S. at 19.

9. See, e.g., Morris, 432 U.S. at 495-96 (Attorney General's objection to state reapportionment act, "standing alone, would have justified an injunction against enforcement of the Act"); Lucas v. Townsend, 486 U.S. 1301 (1988) (Kennedy, J., in chambers) (granting emergency injunction under Section 5 pending appeal to stop an unprecleared election one day before it was scheduled); United States v. Louisiana, 952 F. Supp. 1151, 1159 (W.D. La. 1997) (three-judge court) (there is "no persuasive authority for the proposition that the traditional preliminary injunction test applies to claims for injunctive relief in the face of a 5 preclearance violation"), aff'd, 521 U.S. 1101 (1997); Busbee v. Smith, 549 F. Supp. 494, 523 (D.D.C. 1982) (three-judge court) (Section 5 provides for an "automatic injunction" against "any election using the new procedure"), aff'd, 459 U.S. 1166 (1983).

10. U.S. Const., Art. VI, clause 2 provides that: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

11. See also Griggs v. Bennett, 710 So. 2d 411, 412 n.3 (Ala. 1998); Roe v. Mobile County Appointment Bd., 676 So. 2d 1206, 1220 (Ala. 1995), overruled on other grounds, Williamson v. Indianapolis Life Ins. Co., 741 So. 2d 1057, 1059 (Ala. 1999).

12. Although Mitchell does not cite the United States Supreme Court's earlier decision in Hathorn v. Lovorn, it follows the basic distinction established by Hathorn between actions arising under Section 5, which the Voting Rights Act might well "grant the federal courts exclusive jurisdiction over," and a "limited jurisdiction" in state courts to consider Section 5 coverage issues which arise collaterally to state law claims, to the extent of not ordering unprecleared voting changes into effect. Hathorn, 457 U.S. at 267-69. See also Smith v. Clark, 711 So. 2d 272 (La. Ct. App. 1996) (discussing Mitchell and Hathorn in dismissing state law election contest raising preclearance issues for lack of subject matter jurisdiction under Section 5).

13. See also City of Rome v. United States, 472 F. Supp. 221, 241-42 (D.D.C. 1979) (three-judge court) ("The private plaintiffs assert that as a result of their inability to vote in municipal elections, they have been deprived of certain rights guaranteed under various provisions of the Constitution. ... We need not decide whether the right to vote in a municipal election when that election is regularly scheduled can ever be deemed a fundamental right protected by the Constitution. For even if fundamental interests were at stake, we believe section 5 of the Act is justifiable as advancing the compelling national interest of enforcing the Fifteenth Amendment by erasing the blight of racial discrimination in voting.... Moreover, the means chosen in section 5 were narrowly tailored to advancing this interest") (citations and quotations omitted), aff'd, 446 U.S. 156 (1980) (emphasis supplied).

14. Plaintiffs' effort (Pl. Br. at 25-26) to rely on the language of Section 5 to support their cause is misplaced. The relevant language of the statute reads: "unless and until the [D.C. District] court enters such judgment [granting preclearance] no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure." 42 U.S.C. 1973c. The Supreme Court has interpreted this language on several occasions. Allen, 393 U.S. at 554-57; Hadnott v. Amos, 394 U.S. 358, 366-67 (1969). In this case it simply means that the designation of the two majority-white Weatherly annexed areas to the City of Alabaster's only majority-black council ward (Ward 1) is rendered legally unenforceable by Section 5 absent preclearance, and the City could not force black voters to vote or run for office in a version of Ward 1 which included the unprecleared designation of the two Weatherly annexed areas. Because the City did not implement the unprecleared change, no voters were "denied the right to vote" in violation of Section 5 in the August 22 election.

15. Plaintiffs also cannot prevail on their claim under Section 2 of the Voting Rights Act. Plaintiffs have made no effort to explain how such a claim could overcome the legally unenforceable status of the voting changes at issue under Section 5 of the Act, nor are we aware of any basis for such a claim.

16. A majority of the justices on the Supreme Court has found that compliance with the Voting Rights Act is a compelling state interest. See Bush v. Vera, 517 U.S. 952, 990-92 (1996) (O'Connor, J., concurring); id. at 1033-34 (Stevens, J., joined by Ginsburg and Breyer, JJ., dissenting); id. at 1046, 1065 (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting). A number of lower courts have found likewise. See, e.g., Askew v. City of Rome, 127 F.3d 1355, 1376 (11th Cir. 1997); Clark v. Calhoun County, 88 F.3d 1393, 1405 (5th Cir. 1996); Sanchez v. Colorado, 97 F.3d 1303, 1327 (10th Cir. 1996), cert. denied, 520 U.S. 1229 (1997).

17. Hathorn, 457 U.S. at 265-66 n.16 (change in election practices resulting from state court decision covered by Section 5); LULAC of Texas v. Texas, 113 F.3d 53, 55-56 (5th Cir. 1997), on remand, 995 F. Supp. 719, 726 (W.D. Tex. 1998) (three-judge court); LaRouche v. Fowler, 152 F.3d 974, 986 (D.C. Cir. 1998); Turner v. Webster, 637 F. Supp. 1089 (N.D. Ala. 1986) (three-judge court).