BILL CLINTON, GOVERNOR OF ARKANSAS, ET AL., APPELLANTS V. M.C.
JEFFERS, ET AL.

   No. 90-394

   In The Supreme Court Of The United States

   October Term, 1990

   On Appeal From The United States District Court For The Eastern
District Of Arkansas

   Brief For The United States As Amicus Curiae

   This submission responds to the Court's invitation to the Solicitor
General to file a brief expressing the views of the United States.

            TABLE OF CONTENTS
   Questions Presented
   Statement
   Discussion
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether the district court correctly held that changes in
Arkansas law relating to a majority-vote requirement in general
elections are to be subjected to preclearance under Section 3(c) of
the Voting Rights Act of 1965, 42 U.S.C. 1973a(c), based on the
determination that a series of previously enacted state majority-vote
statutes violated the Fourteenth and Fifteenth Amendments.

   2. Whether the district court erred in invoking its "inherent
equitable power" to order the State to submit a future apportionment
plan to the court and hold the plan in abeyance for 60 days, to afford
the plaintiffs who challenged the old plan an opportunity to challenge
the new one.

                               STATEMENT

   1. In 1989, appellees, black voters in Arkansas, filed this federal
court action challenging the State of Arkansas' 1981 state-wide
legislative apportionment plan under the Voting Rights Act of 1965, 42
U.S.C. 1971 et seq.  The state legislature consists of a 35-member
Senate and a 100-member House of Representatives.  At that time, there
were five House seats representing districts with black voting age
population (VAP) majorities, and one majority-black VAP Senate seat.
Blacks constituted 16 percent of the State's population, yet no black
legislator had ever been elected from outside a majority-black VAP
district.  Appellees contended, among other claims, that the state
apportionment plan violated Section 2 of the Voting Rights Act of
1965, as amended, 42 U.S.C. 1973, by drawing Senate and House district
lines in a way that resulted in black voters having "less opportunity
* * * (than other voters) to participate in the political process and
to elect representatives of their choice." Ibid.  J.S. App. A5;  see
Jeffers v. Clinton, 730 F. Supp. 196, 198-201 (E.D. Ark. 1989)
(three-judge court), aff'd, No. 89-2008 (Jan. 7, 1991).

   After a trial, the three-judge district court held in December 1989
that appellants' state-wide legislative reapportionment plan violated
Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973.  See
Jeffers v. Clinton, 730 F. Supp. at 203-217.  In February 1990, the
district court remedied this violation by adopting -- with
modifications -- a new apportionment plan submitted by the State Board
of Apportionment.  This plan created an additional seven
majority-black VAP House districts and another two majority-black VAP
Senate districts.  See 89-2008 J.S. App. 192-228.  /1/ This Court
summarily affirmed on January 7, 1991.

   2. In their complaint, appellees had also contended that

         (a) pattern of violations of the voting guarantees of the
      fourteenth and fifteenth amendments and statutes enacted to
      enforce such guarantees justifying equitable relief has occurred
      within the territory of Arkansas, mandating placing the State of
      Arkansas under pre-clearance requirements pursuant to section
      3(c) of the Voting Rights Act, 42 U.S.C. Section 1973a(c).

Compl. Paragraph 80;  see also id. Paragraphs 1, 35-37, 82.  /2/ Apart
from this preclearance relief, appellees also asked the district court
to

      (r)etain jurisdiction until (appellants have) reapportioned the
      State on the basis of the 1991 (sic:  1990) census and for such
      additional period until the Court finds that the new plan (with
      any revisions that the Court deems necessary) complies with the
      Constitution and the Voting Rights Act, that it fairly
      recognizes the voting strength of black citizens and that it
      does not perpetuate (any statutory or constitutional violations
      found to have been committed), and order that during such period
      no elections shall be held under the new plan.

Compl. at 16-17 (Relief Paragraph 4).  The district court deferred
ruling on appellees' constitutional claims and their request for
preclearance relief in the initial opinion it issued in December 1989.
 See J.S. App. A5;  Jeffers v. Clinton, 730 F. Supp. at 199.

   3. In May 1990, the district court turned to those claims, holding
that "the State of Arkansas has committed a number of constitutional
violations of the voting rights of black citizens." J.S. App. A5.  In
particular, the court determined that the "State has systematically
and deliberately enacted new majority-vote requirements for municipal
offices, in an effort to frustrate black political success in
elections traditionally requiring only a plurality to win." Ibid.
Accordingly, the court ordered a "limited preclearance remedy" under
Section 3(c) of the Voting Rights Act, namely, "that any future laws,
standards, or practices designed to enforce or enhance a majority-vote
requirement not take effect until the preclearance process has run its
course." J.S. App. A5.  "In all other respects," the court denied
appellees' "request for statutory preclearance under Section 3(c)."
Id. at A40.  The court went on, however, to direct, "not as a matter
of statute, but as a matter of inherent equitable power," ibid., that

      the plan of apportionment for the State Legislature to be
      adopted by the Board of Apportionment after the 1990 census not
      take effect until (appellees) have had a chance to inspect it
      and to challenge it (before the court).

Id. at A5.  /3/

   a. The court first rejected appellees' claim that the 1981 state
apportionment plan violated the Fourteenth or Fifteenth Amendments.
J.S. App. A11-A16.  As the court explained:

      We are not persuaded that the (Board of Apportionment) was
      motivated by an affirmative intention to harm black voting
      rights.  Its attitude, instead, can best be described as
      indifference.  It took no action to enhance minority voting
      rights, but neither did it move in any positive way to dilute
      them.  The result * * * was in fact to dilute them, but result
      is not the same as intention.

Id. at A15.  /4/

   The court agreed, however, with appellees' constitutional challenge
to the state statutes providing for majority-vote requirements in
general elections for municipal and county offices.  See Ark. Stat.
Ann. Sections 7-5-106, 14-42-206 (1987 & Supp. 1989).  /5/ The court
found that

      (d)evotion to majority rule for local offices lay dormant as
      long as the plurality system produced white office-holders.  But
      whenever black candidates used this system successfully -- and
      victory by a plurality has been virtually their only chance of
      success in at-large elections in majority-white cities -- the
      response was swift and certain.  Laws were passed in an attempt
      to close off this avenue of black political victory.

J.S. App. A23-A24.  /6/ The court therefore concluded that

      (t)his series of laws represents a systematic and deliberate
      attempt to reduce black political opportunity.  Such an attempt
      is plainly unconstitutional.  It replaces a system in which
      blacks could and did succeed, with one in which they almost
      certainly cannot.  The inference of racial motivation is
      inescapable.

Id. at A24 (footnote omitted).  /7/

   b. As relief, the court held that "a limited preclearance remedy is
required," since "(t)he series of majority-vote statutes passed for
the purpose of suppressing black political success * * * demands
strong action." J.S. App. A39, A40.  The court therefore directed that

      any further statutes, ordinances, regulations, practices, or
      standards imposing or relating to a majority-vote requirement in
      general elections in (Arkansas) must be subjected to the
      preclearance process.

Id. at A40.

   The court also "deem(ed) it appropriate to impose one further item
of relief in the nature of preclearance, not as a matter of statute,
but as a matter of inherent equitable power." J.S. App. A40.  The
court directed that "no plan of apportionment (adopted on the basis of
the 1990 census) may go into effect until 60 days have lapsed from the
date of its final adoption by the Board (of Apportionment)." Id. at
A40-A41.  The court would "retain jurisdiction, within that time
period, for the purpose of entertaining any challenge by (appellees)
to such plan." Id. at A41.  The court noted that "such a period of
vulnerability, so to speak, should work to the advantage of the State,
because if the plan adopted in 1991 survives this hurdle, the chances
of its being allowed to govern undisturbed until the Census of 2000,
will be, as a practical matter, greatly enhanced." Ibid.

                              DISCUSSION

   This Court should note probable jurisdiction.  /8/ In our view, the
district court erred in relying on "inherent equitable power" to
fashion an extra-statutory preclearance scheme, requiring the State to
hold its new plan based on the 1990 census in abeyance for 60 days
while it was submitted for the approval of the private plaintiffs who
had challenged the 1981 plan.  The district court cited no authority
for such an exercise of jurisdiction, and we are aware of none.  The
court's unprecedented assertion of a right -- as a matter of "inherent
equitable power" -- to review state laws before they go into effect
violates this Court's admonition that "appropriate consideration must
be given to principles of federalism in determining the availability
and scope of equitable relief." Rizzo v. Goode, 423 U.S. 362, 379
(1976).

   With respect to the preclearance remedy ordered under Section 3(c)
of the Voting Rights Act, 42 U.S.C. 1973a(c), we submit that the
district court's ruling is correct.  Appellants' main contention in
this regard is that the district court did not notify them that it
would base Section 3(c) preclearance on findings with respect to the
majority-vote statutes, rather than the 1981 apportionment plan.  In
our view, this contention is wrong and, standing alone, does not
warrant plenary review.  If the Court notes probable jurisdiction in
light of the lower court's ruling with respect to the extra-statutory
preclearance remedy, however, it may wish to consider the case as a
whole.  Alternatively, in view of the district court's otherwise
correct ruling regarding limited preclearance relief under Section
3(c) of the Voting Rights Act, and its erroneous imposition of an
extra-statutory preclearance scheme, the judgment below could be
summarily affirmed subject to a modification eliminating the latter
element of relief.

   1. Appellants contend that the district court erroneously ordered
preclearance relief under Section 3(c) of the Voting Rights Act, 42
U.S.C. 1973a(c), because "(a) straightforward reading of (the statute)
indicates that a court must find a constitutional violation in the
electoral mechanism that was the subject of the 'proceeding instituted
. . . to enforce the voting guarantees of the Fourteenth or Fifteenth
Amendment' before it has the option of imposing preclearance." J.S.
6-7.  Here, appellants point out, the district court determined that
the 1981 apportionment plan -- the focus of appellees' lawsuit --
violated the Voting Rights Act but not the Constitution.  Accordingly,
appellants assert (J.S. 9-12) that preclearance relief based on the
state majority-vote statutes found to be unconstitutional -- state
laws that were not the subject of appellees' lawsuit -- exceeds the
scope of Section 3(c).  Appellants' position is wrong both as a matter
of fact and as a matter of statutory construction.

   First, the record shows that the state majority-vote statutes --
along with the 1981 apportionment plan -- were subjects of appellees'
voting rights action.  In the complaint, appellees alleged that
"Arkansas has a long history of official discrimination that touched
the right of black citizens to register, to vote, and otherwise to
participate in the democratic process," Compl. Paragraph 35, and that
a "pattern of violations of the fourteenth and fifteenth amendments *
* * has occurred within the territory of Arkansas, mandating placing
the State of Arkansas under preclearance requirements pursuant to
section 3(c) of the Voting Rights Act, 42 U.S.C. Section 1973a(c),"
Compl. Paragraph 80.  In response to appellants' interrogatories,
appellees notified the State that "the discriminatory runoff
requirements for primary and general elections" formed part of the
basis of the request for preclearance relief under Section 3(c).
Pltf. Resp. to Deft.  First Set of Interr. 35, Jeffers v. Clinton, No.
H-C-89-004 (E.D. Ark.) (filed June 7, 1989).

   Moreover, during the pretrial conference, the parties agreed that
previous testimony from the Whitfield case could be introduced --
subject to objection on relevancy grounds -- to show the
discriminatory motivations underlying the enactment of the
majority-vote state statutes.  Sept. 28, 1989, Tr. 13-20.  /9/ As a
result, appellees presented testimony from the Whitfield case and
additional testimony relating to the background of those statutes, see
VI Tr. 98-104;  VII Tr. 7, 59-62 -- evidence that accounted for the
district court's findings.  See J.S. App. A22-A23.  /10/

   Second, under Section 3(c) of the Voting Rights Act, 42 U.S.C.
1973a(c), Congress has authorized federal courts to subject
jurisdictions to preclearance strictures similar to those imposed
automatically on other jurisdictions by Sections 4 and 5 of the Act,
42 U.S.C. 1973b and 1973c.  Known as the "pocket trigger," see H.R.
Rep. No. 439, 89th Cong., 1st Sess. 17 (1965), Section 3(c) addressed
so-called pockets of discrimination, i.e., jurisdictions with
histories of voting discrimination to which the coverage formula of
Section 4 did not apply.  See Brown v. Board of School Commissioners,
542 F. Supp. 1078, 1101-1102 (S.D. Ala. 1982).  By its terms, Section
3(c) contains two prerequisites for preclearance relief:  First, there
must be a "proceeding instituted * * * under any statute to enforce
the voting guarantees of the fourteenth and fifteenth amendment," 42
U.S.C. 1973a(c);  and second, the court must "find() that violations
of the fourteenth or fifteenth amendment justifying equitable relief
have occurred within the territory of (the relevant) State or
subdivision," 42 U.S.C. 1973a(c).

   Here, as the district court correctly held, those two statutory
prerequisites are met.  First, appellees brought this action under the
Voting Rights Act, 42 U.S.C. 1971 et seq., to enforce the voting
guarantees of the Fourteenth and Fifteenth Amendments and specifically
sought preclearance relief under Section 3(c) of the Act for the
State's constitutional violations.  Second, the district court found
on the record presented at trial -- and appellants do not dispute here
-- that "violations of the fourteenth or fifteenth amendment
justifying equitable relief have occurred (in Arkansas)." 42 U.S.C.
1973a(c);  see J.S. App. A23-A24.  /11/

   Moreover, the district court's straightforward application of the
terms of Section 3(c) is consistent with Congress's understanding of
the preclearance remedy.  Congress intended Section 3(c) -- like the
companion provision in Section 5 -- to apply to jurisdictions that
find new ways to infringe individuals' voting rights after the courts
have enjoined previously devised methods.  As this Court has observed
in the context of Section 5:

      Even when favorable decisions have finally been obtained, some
      of the States affected have merely switched to discriminatory
      devices not covered by the federal decrees or have enacted
      difficult new tests designed to prolong the existing disparity
      between white and Negro registration.

South Carolina v. Katzenbach, 383 U.S. 301, 314 (1966);  see id. at
335;  H.R. Rep. No. 439, supra, at 8, 12.  In other words, Congress
likely contemplated that the constitutional violations that "have
occurred" -- and hence called for the preclearance remedy -- would
often not be enjoined in the same suit in which they served as the
predicate for such relief.

   2. Appellants also challenge (J.S. 8, 12-13) the district court's
imposition of a "further item of relief in the nature of preclearance,
not as a matter of statute, but as a matter of inherent equitable
power," J.S. App. A40.  The court ordered that the new apportionment
plan that the State would adopt after the 1990 census may not go into
effect until 60 days after its final adoption by the State Board of
Apportionment, and retained jurisdiction to permit appellees to
challenge that new plan, should they desire to do so.  As the court
recognized, "(t)his retention of jurisdiction is not required by
Section 3(c) of the Act, but (appellees) have requested it, in the
alternative, and we believe it is appropriate under the facts of this
case." J.S. App. A40-A41.

   In disavowing the statutory preclearance remedy under Section 3(c)
and relying only on "inherent equitable power," the district court has
ordered the State in effect to preclear its new plan not with the
Attorney General of the United States (an option under Section 3(c)),
but with appellees -- the private plaintiffs who had challenged the
previous plan.  Appellees' lawsuit -- which did not challenge and
could not have challenged the State's yet-to-be promulgated 1991 plan
-- is kept alive to afford a ready-made forum should these particular
individuals decide to mount a challenge when the plan eventually is
promulgated.  We are aware of no authority supporting such an
assertion of continuing jurisdiction reaching beyond the challenge
before the court.  Even the court below could cite no statutory or
case law authority for imposing this ad hoc preclearance requirement
on the State.  /12/

   Congress has specified particular preclearance remedies in the
Voting Rights Act.  See 42 U.S.C. 1973a(c) and 1973c.  That statutory
structure itself further suggests that federal courts in voting rights
actions should not exercise "inherent" equitable authority to impose
different preclearance remedies of their own design.  Indeed, in
upholding the constitutionality of the statutory preclearance scheme
under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, this Court
recognized that the requirement of preclearance was "an uncommon
exercise of congressional power," South Carolina v. Katzenbach, 383
U.S. at 334.  It thus seems unlikely that the Court understood every
federal district court to possess the "inherent" authority to fashion
its own preclearance remedy on a finding that such action was
"appropriate." J.S. App. A41.

   It is important to recognize that the issue is not whether the 1991
plan to be formulated by the State will cure the Section 2 violation
the district court found to exist under the 1981 plan.  That violation
was remedied by the plan the court ordered to go into effect and under
which the 1990 elections were held.  This then is not a case in which
the court orders the State to submit a plan to remedy an existing
violation, and therefore retains jurisdiction to consider whether the
proposed plan remedies the violation.  That has already occurred here.
 Nor is this a case in which the district court found a sufficiently
"real threat of future violation" to justify an injunction against
such violations and retention of jurisdiction to enforce the
injunction.  United States v. Oregon Medical Society, 343 U.S. 326,
333 (1952).

   It is also important to recognize that the court's action cannot be
justified by reference to the statutory preclearance remedy of Section
3(c).  The court expressly ruled that this aspect of relief was
imposed "not as a matter of statute," and that its "retention of
jurisdiction is not required by Section 3(c) of the Act." J.S. App.
A40-A41.  The court specifically limited its grant of Section 3(c)
preclearance relief to majority-vote requirements in general
elections.  /13/

   In any event, the features of the preclearance required by the
court with respect to the 1991 plan differ significantly from those of
the statutory preclearance remedy under Section 3(c).  Under the
statute, the State subject to preclearance submits its proposal either
to the court or to the Attorney General.  42 U.S.C. 1973a(c).  Under
the court's scheme, the lawsuit filed by the private plaintiffs to
challenge the 1981 plan remains alive, and the State must submit its
proposal to those plaintiffs to afford them "a chance to inspect it
and to challenge it (before the court)." J.S. App. A5.  /14/

   The authority cited by appellees (Mot. to Aff. 7-11) does not
support the district court's action here.  In Louisiana v. United
States, 380 U.S. 145 (1965), the Court did not sanction a judicial
preclearance mechanism for future state laws;  instead, it upheld the
district court's remedial order concerning the effect of an existing
test promulgated after the suit was filed.  Id. at 154-155.  /15/
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), and Hecht Co. v.
Bowles, 321 U.S. 321 (1944), concerned the authority of district
courts to decline to issue a requested injunction.  Appellees maintain
that "the comprehensiveness of (the traditional equitable powers) is
not to be denied or limited in the absence of a clear and valid
legislative command." Mot. to Aff. 11 n.10 (quoting Romero-Barcelo,
456 U.S. at 313 (brackets in original)).  The point, however, is that
it is not a "traditional equitable power" in our federal system for
district courts to direct States to submit proposed legislation to the
court in order that the plaintiffs who challenged previous legislation
can consider whether to challenge the new law, and to hold that law in
abeyance while plaintiffs make up their minds.  /16/

   This Court has long recognized that "while 'remedial powers of an
equity court must be adequate to the task, . . . they are not
unlimited.'" Spallone v. United States, 110 S. Ct. 625, 632 (1990)
(quoting Whitcomb v. Chavis, 403 U.S. 124, 161 (1971)).  Particularly
where "the exercise of authority by state officials is attacked,
federal courts must be constantly mindful of the 'special delicacy of
the adjustment to be preserved between federal equitable power and
State administration of its own law.'" Rizzo v. Goode, 423 U.S. at 378
(quoting Steffanelli v. Minard, 342 U.S. 117, 120 (1951)).  /17/ As
this Court stated in Goode, "appropriate consideration must be given
to principles of federalism in determining the availability and scope
of equitable relief." 423 U.S. at 379.  Indeed, last Term this Court
emphasized that "one of the most important considerations governing
the exercise of equitable power is a proper respect for the integrity
and function of local government institutions." Missouri v. Jenkins,
110 S. Ct. 1651, 1663 (1990).  Giving due consideration to those
principles, we do not believe that a federal court's "inherent
equitable power" -- as invoked by the court below -- may be used to
fashion an extra-statutory preclearance scheme for future state
enactments.

                              CONCLUSION

   Probable jurisdiction should be noted.  In the alternative, the
judgment of the district court could be summarily affirmed, subject to
the modification eliminating that aspect of the judgment requiring the
State to submit a future apportionment plan to the court and hold the
plan in abeyance for 60 days.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN R. DUNNE

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attorney General

   MICHAEL R. LAZERWITZ

      Assistant to the Solicitor General

   JESSICA DUNSAY SILVER

   MIRIAM R. EISENSTEIN

      Attorneys

   FEBRUARY 1991

   /1/ Chief Judge Eisele filed dissents from the district court's
liability and remedial opinions.  See Jeffers v. Clinton, 730 F. Supp.
at 219-284;  89-2008 J.S. App. 205-228.

   /2/ Section 3(c) of the Voting Rights Act of 1965, 42 U.S.C.
1973a(c), provides in pertinent part:

         If in any proceeding instituted by the Attorney General or an
      aggrieved person under any statute to enforce the voting
      guarantees of the fourteenth or fifteenth amendment in any State
      or political subdivision the court finds that violations of the
      fourteenth or fifteenth amendment justifying equitable relief
      have occurred within the territory of such State or political
      subdivision, the court, in addition to such relief as it may
      grant, shall retain jurisdiction for such period as it may deem
      appropriate and during such period no voting qualification or
      prerequisite to voting or standard, practice, or procedure with
      respect to voting different from that in force or effect at the
      time the proceeding was commenced shall be enforced unless and
      until the court finds 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 * * *.

   /3/ Chief Judge Eisele filed a dissent.  See J.S. App. A41-A97.

   /4/ The court also reviewed -- on a county-by-county basis -- "a
variety of local incidents and practices in the area of the State
known as the Delta which, (appellees) say, were intended to and have
had the effect of suppressing black political activity." J.S. App.
A19.  With the exception of Ashley County, the court found
insufficient evidence of any current constitutional violation.  See
id. at A24-A35.  In Ashley County, the court did "find that there have
been constitutional violations of the right to vote." Id. at A34.

   /5/ The court rejected appellants' contention that "(o)ther alleged
constitutional violations with respect to election laws and practices
(apart from the alleged violation concerning the 1981 apportionment
plan) are beside the point, because * * * they were not pleaded in the
complaint." J.S. App. A16.  The court found that "(a)t least since the
time of the pretrial conference, * * * it has been clear that
(appellees) would attempt to prove a pattern of statutory and
constitutional violations of their voting rights." Ibid.  The court
therefore concluded that

      (a)ll of the issues were on the table before trial, (appellants)
      had a full and adequate opportunity to offer proof on them, and,
      if in fact the complaint is not broad enough to encompass them,
      the pleadings should now be deemed amended to conform with the
      proof.  See Fed. R. Civ. P. 15(c) (sic:  15(b)).

J.S. App. A16.

   The court also rejected the argument that Section 3(c) of the
Voting Rights Act, 42 U.S.C. 1973a(c) "does not apply at all unless a
violation of the Constitution is shown with respect to the very
election law or practice that is the principal focus of the
complaint." J.S. App. A17.  The court pointed out the "phrase
'violations of the fourteenth or fifteenth amendment justifying
equitable relief,' which the statute uses as the triggering condition
for preclearance, is not limited at all." Ibid.

   /6/ The court rejected appellees' contention that "the
majority-vote requirement in Arkansas was originally enacted to
prevent black political success." J.S. App. A20;  see Ark. Stat. Ann.
Section 7-7-202 (1987).  The court also rejected appellees' claim that
"the general majority-vote requirement for party primaries was
maintained for a discriminatory purpose." J.S. App. A21.

   /7/ The district court, however, did not enjoin enforcement of
those statutes, because -- among other reasons -- appellees "at the
oral argument at the close of the trial * * * disclaimed any desire
for such relief." J.S. App. A24 n.7.

   /8/ Since the three-judge district court was properly convened
under 42 U.S.C. 1971(g), this Court has jurisdiction over the appeal
under 28 U.S.C. 1253.

   /9/ In Whitfield v. Democratic Party, 686 F. Supp. 1365 (E.D. Ark.
1988), plaintiffs alleged that the Arkansas majority vote requirements
for primaries and general elections violated Section 2 of the Voting
Rights Act.  The district court dismissed on the pleadings plaintiffs'
challenge to the requirement for general elections and rejected on the
merits plaintiffs' challenge to the requirement for primaries.  At the
time of the pretrial conference in this case, Whitfield was pending
before the court of appeals.

   After the trial here, the Eighth Circuit sitting en banc affirmed
the district court's judgment in Whitfield by an equally divided
court.  Whitfield v. Democratic Party, 902 F.2d 15 (1990) (per
curiam), petition for cert. pending, No. 90-383.  This Court has
invited the Solicitor General to file a brief expressing the views of
the United States in the Whitfield case;  that brief -- filed February
4, 1991 -- recommends that the Court deny the petition.

   /10/ Appellees' post-trial submission plainly showed that the
constitutionality of the state majority-vote statutes was at issue in
connection with the request for preclearance relief under Section
3(c).  Pltf. Post-Trial D.C. Br. 90-98.

   Appellants argued below that "(n)othing in the complaint indicated
that (appellees) were presenting a Fourteenth or Fifteenth Amendment
claim based on the runoff requirement." Deft. Post-Trial D.C. Br. 35.
That claim is makeweight, where, as here, the record shows that
appellants -- before the trial began -- were well aware of the precise
scope of appellees' voting rights action, and -- once the trial began
-- had the opportunity to and did contest appellants' claims.  For
that reason, and contrary to appellants' assertion (J.S. 10-11), the
district court's invocation of Fed. R. Civ. P. 15(b) is
unexceptionable.

   /11/ The fact that the district court declined to award equitable
relief for those constitutional violations is beside the point, since
the statute speaks in terms of "violations * * * justifying equitable
relief" as opposed to violations resulting in such relief.

   /12/ The court noted only that appellees had requested this relief
in the alternative and that the 60-day "period of vulnerability" would
work to the State's advantage in enhancing the likelihood that the
1991 plan would remain undisturbed if it "survives this hurdle." J.S.
App. A41.  In certain cases, the United States does seek continuing
injunctive relief so as to permit the collection of reports and the
monitoring of compliance with basic obligations under the civil rights
laws.  See, e.g., United States v. Chesapeake & O. Ry., 471 F.2d 582,
585 (4th Cir. 1972), cert. denied, 411 U.S. 939 (1973);  United States
v. West Peachtree Tenth Corp., 437 F.2d 221, 228, 230-231 (5th Cir.
1971).  Here, however, the district court has intruded into core areas
of state sovereignty and fashioned an ad hoc remedy in the face of a
carefully calibrated remedial structure established by Congress in the
Voting Rights Act.

   /13/ See J.S. App. A40 ("In all other respects, (appellees')
request for statutory preclearance under Section 3(c) will be
denied.").

   /14/ It is no answer to suggest that the court could have imposed a
broader statutory preclearance remedy under Section 3(c) than it did
to include future apportionment plans.  The court quite deliberately
chose not to do so, for reasons it set forth.  See J.S. App. A39-A40.
In addition, as noted, the court's preclearance plan was different
from that specified in Section 3(c).

   /15/ Indeed, the Court specifically noted that the new test was not
subject to challenge in the pending lawsuit, but was being challenged
"in a lower court (in) a new suit." 380 U.S. at 155 n.17.

   /16/ For that reason, appellees err (Mot. to Aff. 7-8) in relying
on the Senate Report's reference to "tradition equitable powers." See
S. Rep. No. 417, 97th Cong., 2d Sess. 31 (1982).

   We agree with appellees (Mot. to Aff. 9-10), however, that
appellants are mistaken in suggesting (J.S. 12) that the issue turns
on whether the prior challenge was based on a statutory or
constitutional violation.  Although the district court here
invalidated the 1981 plan on statutory rather than constitutional
grounds, we do not see any basis for the court's purported inherent
authority to fashion an ad hoc, extra-statutory pre-clearance scheme
on the basis of a past violation of either statutory law or the
Constitution.

   /17/ Goode rejected what this Court described as the "novel claim"
that "(t)he scope of federal equity power * * * should be extended to
the fashioning of prophylactic procedures" to prevent the recurrence
of past unlawful acts by the State.  423 U.S. at 378.  That seems to
us a fair description of the extra-statutory preclearance remedy
fashioned as a matter of equitable power by the court below.