MEXICAN AMERICAN BAR ASSOCIATION OF TEXAS, (MABA), ET AL.,
APPELLANTS V. THE STATE OF TEXAS, ET AL.

   No. 90-1352

   In The Supreme Court Of The United States

   October Term, 1990

   On Appeal From The United States District Court For The Western
District Of Texas

   Brief For The United States

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
   The questions are substantial
   Conclusion

                             OPINION BELOW

   The memorandum opinion and order of the three-judge district court
(J.S. App. 1-40) is unpublished.  /1/

                             JURISDICTION

   The judgment of the three-judge district court was entered on
January 25, 1991 (J.S. App. 93), and appellants filed a notice of
appeal on February 7, 1991 (J.S. App. 95) and a jurisdictional
statement on February 27, 1991.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1253 and 42 U.S.C. 1973c.

                          QUESTIONS PRESENTED

   1. Whether the district court permissibly rejected the Attorney
General's determination, in administering Section 5 of the Voting
Rights Act of 1965, 42 U.S.C. 1973c, that additional information
materially supplemented a jurisdiction's submission of a voting change
and thereby commenced anew the 60-day period during which the Attorney
General may object to a voting change.

   2. Whether a voting procedure was "in force or effect," within the
meaning of Section 5 of the Voting Rights Act of 1965, on the date of
coverage specified by the Voting Rights Act of 1965, if the procedure
was enacted before the date of coverage but was not filled by general
election until after the date of coverage.

                               STATEMENT

   1. Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c,
prohibits changes affecting voting in covered jurisdictions unless a
change is precleared by either the United States District Court for
the District of Columbia or the Attorney General of the United States.
 Dougherty County Bd. of Educ. v. White, 439 U.S. 32, 33-34 (1978).
More particularly, Section 5 bars covered jurisdictions from
implementing any "voting qualification or prerequisite to voting, or
standard, practice or procedure with respect to voting" different from
that "in force or effect" on a specified date (November 1, 1964,
November 1, 1968, or November 1, 1972, depending on the date of
coverage for the particular jurisdiction) until the jurisdiction
either (1) has submitted the proposed change to the District Court for
the District of Columbia and received a declaratory judgment that the
change "does not have the purpose and will not have the effect of
denying or abridging the right to vote on account of race or color, or
in contravention of the guarantees set forth in (Section 4(f)(2) of
the Act)," or (2) has submitted the change to the Attorney General and
the Attorney General "has not interposed an objection within sixty
days after such submission, or * * * affirmatively indicated that such
objection will not be made."

   The Attorney General has promulgated regulations to govern his
administration of Section 5.  See 28 C.F.R. 51 et seq.  Section 51.39
of these regulations provides that, if the submitting authority
provides documents and written information "materially supplementing"
a submission, "the 60-day period for the original submission will be
calculated from the receipt of the supplementary information." 28
C.F.R. 51.39.  /2/

   In 1975, Texas became a covered jurisdiction under Section 5 of the
Voting Rights Act of 1965.  It thus cannot implement any "standard,
practice, or procedure with respect to voting" different from that in
effect on November 1, 1972, until it has obtained preclearance.  40
Fed. Reg. 43,746 (1975).

   2. a.  In June 1989, the State of Texas enacted legislation
creating 15 new elected state district court judgeships (Chapter 632,
S.B. No. 1379 (1989)).  On February 13, 1990, the State submitted the
legislation (Chapter 632) to the Attorney General for review pursuant
to Section 5.  /3/ The State's entire submission was a letter and a
copy of Chapter 632.  No information was submitted concerning the
election method for district court judges or the way in which the
judicial districts are structured.  J.S. App. 47-56.

   On March 23, 1990, during the pendency of the review process, state
officials submitted by telefacsimile Sections 6, 7, and 7a of Article
5 of the Texas Constitution addressing -- among other things -- the
method by which district court judgeships are apportioned,
qualifications for judicial candidates, and the minimum geographic
size of judicial districts.  J.S. App. 59-67.  /4/ On April 11, 1990,
prior to the expiration of the statutory 60-day review period, the
Attorney General sent the State a letter informing officials that the
"information received on March 23, 1990, is necessary for a proper
review of the instant changes under Section 5," and that, pursuant to
28 C.F.R. 51.39, a preclearance determination would be made by May 22,
1990 (60 days from March 23, 1990).  J.S. App. 68-69.

   b. On May 16, 1990, six days before the expiration of the review
period, the State sent the Attorney General a letter regarding its
submission and certain court of appeals actions in League of United
Latin Am. Citizens Council No. 4434 (LULAC) v. Clements, a Section 2
challenge to district judgeships in Texas.  The letter observed that
the LULAC panel decision (902 F.2d 293) had been issued five days
previously, /5/ and that the Fifth Circuit had ordered rehearing en
banc (902 F.2d 322).  The letter formally requested that the Attorney
General "consider (the State's) submission in accordance with the
Fifth Circuit's holding in LULAC, and in conjunction with the en banc
opinion that will be issued." J.S. App. 70.  Two days later, on May
18, 1990, the Attorney General sent the State a letter noting the
State's request that "the information (it) provided on May 15 and May
16, 1990, supplement (its) submission" and confirming that the State
"understand(s) that this will extend the time for review under Section
5." Id. at 72.  /6/ The letter then related that, pursuant to 28
C.F.R. 51.39, as a result of the supplemental information, the
Attorney General's preclearance determination would be made by July
16, 1990.  J.S. App. 72-73.

   On July 2, 1990, prior to the expiration of the second recalculated
60-day period, the State sent the Justice Department a letter advising
that the State was withdrawing its submission of Chapter 632.  The
letter reiterated that, prior to the withdrawal, the sixtieth day for
the Attorney General's preclearance decision was July 16, 1990.  The
State's letter explained that the submission was being withdrawn
because the State was not certain whether the Fifth Circuit would
issue the en banc decision in LULAC prior to July 16, 1990.  J.S. App.
74-75.  /7/

   On July 16, 1990, the Justice Department sent a letter to the state
officials informing them that it had received the letter withdrawing
the submission, and that, as a result, no determination by the
Attorney General was necessary.  J.S. App. 76.

   c. On October 1, 1990, three days after the en banc decision in
LULAC, the State resubmitted the legislation for review under Section
5.  J.S. App. 78-79.  /8/

   On November 5, 1990, the Attorney General interposed a Section 5
objection to the changes embodied in Chapter 632.  J.S. App. 80-84.
The objection letter stated that the method of election for the new
judgeships would produce a discriminatory result proscribed under
Section 2 of the Act.  J.S. App. 82.  The objection letter also stated
that the State had not met its burden of proving the absence of
discriminatory purpose in the submitted changes.  Id. at 82-83;  see
also id. at 86.  The letter noted that, in LULAC, the Fifth Circuit
had held that "the Section 2 results standard is not applicable to
judicial elections," but that the court had also held that Section 5
"'applies to judicial elections'";  the letter concluded that "until
this matter is clarified further by the courts we see no basis for
altering our Section 5 procedural requirements insofar as they relate
to Section 2." J.S. App. 83.  The letter thus advised the State that,
unless and until it received a contrary declaratory judgment from the
District Court for the District of Columbia or a reconsideration by
the Attorney General, the proposed changes were "legally unenforceable
and should not be implemented in the November 6, 1990 election." Id.
at 83-84.  /9/

   d. Notwithstanding the Attorney General's objection, the State
conducted elections on November 6, 1990, for all of the additional
judgeships up for election, including five judgeships to which a
Section 5 objection had been interposed.  See J.S. App. 7 n.1.

   3. On October 26, 1990 -- prior to the Attorney General's objection
-- appellants filed a Section 5 enforcement action against the State
of Texas, seeking to enjoin elections in the judgeships created by
Chapter 632 because they had not been precleared pursuant to Section
5.  J.S. App. 3.  Appellants also sought to enjoin elections in two
judgeships in Travis County created by legislation in 1971 (but not
filled by election until after November 1, 1972) that had not been
precleared.  Id. at 3, 5.  The effective date of one of the judgeships
(District 201) was after November 1, 1972, and the effective date of
the other (District 200) was before November 1, 1972.  Id. at 4.

   On November 27, 1990, the United States also filed a Section 5
enforcement action against Texas, seeking to enjoin the State from
continuing to implement the voting changes embodied in Chapter 632
that were the subject of the Attorney General's Section 5 objection.
J.S. App. 3.  The United States' complaint did not address the Travis
County judgeships.  The United States' suit and appellants' suit were
subsequently consolidated.  Id. at 41.

   On November 30, 1990, the State filed its answer to the United
States' complaint and asserted, among other things, that the
judgeships created by Chapter 632 had been preclared by operation of
law because the Attorney General had "failed to act within either
sixty days of Texas's submission or sixty days of any material
supplementary submission as described in 28 C.F.R. Section 51.39."
State Ans. 1-2.  This filing, along with the State's response to
appellants' complaint, marked the first time the State contended that
its two additional submissions did not constitute information
"materially supplementing" the initial submission within the meaning
of 28 C.F.R. 51.39.

   4. On December 26, 1990, the court issued its Memorandum Opinion
and Order.  J.S. App. 1.  By a 2-1 vote, the court held that, contrary
to the Attorney General's contemporaneous determinations and notice to
the State, the State's submission of the Texas Constitution provisions
and of the LULAC letter did not materially supplement the State's
original submission, and thus did not permit re-calculation of the
60-day review period.  Id. at 10.  As a result and despite the State's
own resubmission of Chapter 632 on October 1, 1990, the judgeships
turned out to have been precleared by the Attorney General's failure
to act within sixty days of the State's earlier submission -- either
on April 16, 1990 (sixty days after the initial submission) or, in the
alternative, on May 22, 1990 (sixty days after the submission of the
sections of the Texas Constitution).  Id. at 12-13.

   With respect to the sections of the Texas Constitution, the court
stated that the information was not "supplemental" because it was
readily available in a law library and because the Attorney General
had precleared the transmitted sections.  The court also held that the
information was not material because, according to the court, it could
not possibly have affected "the outcome" of the Attorney General's
decision.  J.S. App. 10-11.  /10/ With respect to the LULAC letter,
the court stated that that information was neither supplemental nor
material because the Justice Department was aware of the case and had
participated in it.  Id. at 11-12.  The court also observed that the
LULAC letter could not have been material because the Attorney General
ultimately objected to Chapter 632 despite the en banc LULAC decision
holding that Section 2 does not apply to the election of judges.  J.S.
App. 12-13.  /11/

   Judge Bunton dissented from the majority's holding that the Chapter
632 judgeships were precleared by operation of law.  J.S. App. 17-40.
He concluded that the additional materials extended the objection
deadline, and he emphasized that the State had recognized in its
correspondence that the deadline had been extended.  Id. at 21-23,
33-35.  /12/

                     THE QUESTIONS ARE SUBSTANTIAL

   In our view, the Attorney General's determinations under 28 C.F.R.
51.39 that additional information materially supplements a submission,
and thereby extends the time during which the Attorney General may
object to the change, is not reviewable.  We did not, however,
explicitly argue non-reviewability to the district court, /13/ and for
that reason have not filed our own Jurisdictional Statement.  See Air
Courier Conf. v. American Postal Workers Union, No. 89-1416 (Feb. 26,
1991), slip op. 5 & n.3.

   Nevertheless, even assuming arguendo that the Attorney General's
determinations are reviewable, the district court seriously erred.  To
the extent that the Attorney General's determinations are reviewable,
they are entitled to substantial deference;  the district court's
failure to accord any deference to the determinations was a clear
error warranting summary reversal and remand to the district court for
further consideration.  In the event of such a remand, we would
present the non-reviewability issue to the district court, and we
therefore discuss it here solely to ensure a full understanding of the
issue presented.

   1. A conclusion that the Attorney General's determinations under 28
C.F.R. 51.39 are not reviewable comports with the purposes and
structure of Section 5 and with prior decisions of this Court.
Furthermore, serious practical problems will result if the Attorney
General's determinations in this context are reviewable.

   a. As this Court has recognized, permitting a covered jurisdiction
to submit a change to the Attorney General was intended "to provide
covered jurisdictions with an expeditious alternative to declaratory
judgment actions," since litigation might "unduly delay the
implementation of validly enacted, nondiscriminatory state
legislation." Morris v. Gressette, 432 U.S. 491, 503-504 (1977).  At
the same time, however, "(t)he judgment that the Attorney General must
make is a difficult and complex one, and no one would argue that it
should be made without adequate information." Georgia v. United
States, 411 U.S. 526, 540 (1973).  /14/ As a result, this Court has
recognized that "the purposes of the Act are furthered if, once all
information relevant to a submission is placed before the Attorney
General, the Attorney General is accorded the full 60-day period
provided by law in which to make his 'difficult and complex'
decision." City of Rome v. United States, 446 U.S. 156, 171 (1980).
Otherwise, if additional information were received without adequate
time for review, the Attorney General might be forced either to make a
response based on an inadequate review of the submission or simply to
object to it.  See Georgia v. United States, 411 U.S. at 540-541.
/15/

   b. In view of the purposes of Section 5, and, more particularly,
the alternative administrative preclearance process, this Court has
held that the Attorney General's discretionary decisions in
administering Section 5 are not reviewable.  In Morris v. Gressette,
supra, the Court held that the Attorney General's failure to object to
a submission was not reviewable.  432 U.S. at 504-507.  Although the
Act does not expressly preclude judicial review, the Court concluded
that non-reviewability can be inferred from the role of the Attorney
General's preclearance procedure in the overall statutory structure.
Id. at 501.  The Court emphasized that the Attorney General's failure
to object is not conclusive with respect to the validity of the
submitted legislation, because the legislation can nevertheless be
challenged in a private enforcement action, and that judicial review
would necessarily extend what was intended to be an expeditious
process.  Id. at 504-506.

   More generally, the Court explained that "(t)he nature of the
Section 5 remedy * * * strongly suggests that Congress did not intend
the Attorney General's actions under that provision to be subject to
judicial review." Morris v. Gressette, 432 U.S. at 501.  See also id.
at 507 n.24 ("(W)e think Congress intended to preclude all judicial
review of the Attorney General's exercise of discretion or failure to
act.").  Pursuant to Morris v. Gressette, lower courts have held that
various discretionary decisions in the Attorney General's
administration of Section 5 are not reviewable.  /16/

   Since Congress has vested in the Attorney General discretion to
object or preclear a voting change, it follows that the Attorney
General also has discretion to determine what information he needs to
make an assessment of the change.  And, since authority to determine
materiality and supplementation is directly derivative of the
authority to preclear or object, decisions on materiality and
supplementation should be equally unreviewable.  Such a rule
effectuates the twin goals of affording a submitting jurisdiction an
informed and expeditious decision, Morris v. Gressette, supra, and
ensuring that the Attorney General's decision is based on complete
information, Georgia v. United States, supra.  As this Court noted in
Morris v. Gressette, 432 U.S. at 505 n.21, a submitting jurisdiction
that is dissatisfied with the decision of the Attorney General may
seek declaratory relief in the District Court for the District of
Columbia;  it may not, however, obtain judicial review of the Attorney
General's discretionary determinations.  /17/

   c. If the courts were permitted to review the Attorney General's
decision that information is supplemental and material, the
administrative preclearance process would be seriously undermined.
The Attorney General could never be certain (at least until it was too
late) that he actually had the time he thought he had to review a
submission.  As a result, to ensure that a court could not later find
that the submission was precleared by operation of law because the
review period expired prior to the objection, the Attorney General
might be compelled, in all but the clearest cases, to assume that the
receipt of supplementary information did not extend the review period.
 This might force the Attorney General either to ignore the
supplementary information in making his decision (e.g., because he did
not have the time to analyze it), or to object to the submission.
/18/ As noted, in analogous circumstances, the Court has recognized
that "(s)uch a result would run counter to the purposes of the Act and
regulations, since it would penalize submitting jurisdictions that
have legitimate reasons to file supplemental materials" and "would
mean that the Attorney General would, in some cases, be unable to give
adequate consideration to materials submitted in piecemeal fashion."
City of Rome v. United States, 446 U.S. at 171-172.

   Finally, precluding judicial review of the Attorney General's
decision that information materially supplements a submission (and
thus extends the review period) does not permit the Attorney General
to postpone endlessly the running of the 60-day review period, and
thus does not implicate the concerns addressed in Garcia v. Uvalde
County, 455 F. Supp. 101 (W.D. Tex. 1978), aff'd mem., 439 U.S. 1059
(1979).  In that case, the district court held, in interpreting the
Attorney General's regulations, that the Attorney General can suspend
the running of the 60-day period only once by requesting additional
information, in part because the Attorney General could otherwise
"drag ( ) out" the review period.  455 F. Supp. at 104-106.  If a
submitting authority does not want to extend the time for the Attorney
General's decision under 28 C.F.R. 51.39, however, it can refrain from
submitting supplemental information (or make certain that its initial
submission is complete).  Thus, under 28 C.F.R. 51.39, the submitting
authority, and not the Attorney General, has the ultimate control over
whether the review process will be repeatedly extended.  /19/

   2. Even if the Attorney General's exercise of discretion under 28
C.F.R. 51.39 is reviewable, the discretionary determination is
entitled to considerable deference, and the district court erred in
failing to defer to the Attorney General's determinations.

   a. If the issue is reviewable at all, a reviewing court should give
great deference to the Attorney General's determination that
information was material and supplementary to a submission.  It is
well established that an agency's interpretation of its own
regulations must prevail unless it is "plainly erroneous or
inconsistent with the regulation," /20/ and this principle of
deference is fully applicable to the Attorney General's interpretation
of the Voting Rights Act regulations.  /21/ In stark contrast to this
settled requirement, the district court did not even mention, much
less apply, any obligation of deference.  Instead, the district court
essentially reviewed the Attorney General's determination de novo -- a
clear error.

   In this particular context, moreover, there is even more reason
than usual to give broad deference to the promulgating entity's
interpretations of its regulations.  Since the Attorney General
ultimately determines, based on his review of the submitted
information, whether to object to the submission, he is in the best
position to know what information is material to his determination and
whether new information is supplemental to the submission.  The
Attorney General's role in the administrative preclearance process
thus further confirms the need for considerable deference to his
conclusions about the materiality and supplementation of additional
information.

   b. Applying appropriate principles of deference, it is clear that
the district court erroneously rejected the Attorney General's
determinations.

   First, the Attorney General reasonably concluded that the
provisions of the Texas Constitution were material and supplemental to
the State's submission.  The State's submission sought preclearance of
the creation of additional district court judgeships.  The initial
submission, however, did not contain information concerning the way in
which the judicial districts are or can be structured under state law.
 This information -- contained in the provisions of the Texas
Constitution -- was necessary to complete the Attorney General's
factual understanding of the judicial districting scheme.  It was also
necessary to his consideration of whether alternative methods of
structuring the judicial districts were possible that might result in
a less discriminatory effect on racial and ethnic minorities, and
therefore whether the availability of such methods was probative of a
discriminatory purpose.

   The district court incorrectly rejected the Attorney General's
determination.  The court concluded that the provisions were not
material because, in its view, "(t)here is no respect in which * * *
(the information) possibly could have 'affected the outcome' of the
submission." J.S. App. 10.  As an initial matter, the Attorney General
is in a far better position than the court to make that determination,
and, as discussed above, the provisions might well have affected the
outcome.  But, in any event, the court misconstrued the nature of the
materiality inquiry under this regulation.  The materiality inquiry in
this context focuses on the relationship of additional information to
the Attorney General's analysis of the submission, not simply on its
relationship to the end result or "outcome." In other words, the
proper inquiry is whether the information aids the Attorney General's
complete understanding of the submitted voting change and his
determination whether the change has a discriminatory purpose or
effect.  The Attorney General may consider a wide range of information
that completes his understanding of the submission, but that might not
ultimately affect his preclearance decision.  Thus, the district court
not only improperly substituted its judgment for the Attorney
General's, but also adopted an unduly narrow interpretation of the
pertinent regulatory term.

   With respect to supplementation, the district court concluded that
the Texas Constitution provisions were not supplemental because they
were readily accessible to the Attorney General and because the
Attorney General had precleared the provisions five years previously.
J.S. App. 10-11.  In addition to the fact that, here, too, the
Attorney General is in a far better position to evaluate
supplementation than the district court, the district court's
interpretation is incorrect.  A submission is supplemented if a
jurisdiction submits information that adds to the information the
Attorney General received in the original submission (or in other
supplementary submissions).  Since the Attorney General receives
thousands of Section 5 submissions each year, /22/ it would be
unreasonable simply to presume that the Attorney General has
constructive knowledge of al information contained in previous
submissions or in the Department of Justice law library, or that is
otherwise available to the Attorney General.  Moreover, it is clearly
the submitting jurisdiction's burden to provide the Attorney General
with complete information on which he can base a decision.  See
Georgia v. United States, 411 U.S. at 536-539.  Finally, implicit in
any supplemental submission is an argument that the material sent
bears on the legality of the proposed changes;  thus, even where the
material may have already been available to the Attorney General, it
will require additional analysis to evaluate the merits of the
argument that the material supports the change's legality.  Thus, on
this issue as well, the district court had no basis for rejecting the
Attorney General's conclusion.

   Second, the Attorney General also reasonably determined that the
State's letter formally requesting that he consider the submission in
light of the panel decision and the anticipated en banc decision in
LULAC also materially supplemented the State's submission.  The
district court held that the request was neither material nor
supplemental because the Justice Department was well aware of the
LULAC litigation.  J.S. App. 11-12.  But the court's conclusion misses
the point.  Voting rights litigation is frequently pending, and the
Attorney General must make preclearance decisions despite that
pendency.  The significance of the State's letter was its formal
request that the submission be considered, not simply with LULAC
pending, but "in conjunction with the en banc opinion that will be
issued." J.S. App. 70.  This request was obviously supplemental
because it added information to the submission.  And the request was
material because it added a significant element to the State's
submission -- a formal request, six days before the end of the 60-day
review period, that the Attorney General consider the submission in
light of an en banc opinion that had not been issued and for which the
order of en banc review had been issued on that very day.  See 902
F.2d 322 (5th Cir. 1990).  Indeed, the en banc decision was so
material to the State's submission that the State eventually withdrew
the submission and did not re-submit it until after the en banc
decision was issued.  J.S. App. 74, 78.

   The district court also suggested that the State's LULAC letter was
not material because the Attorney General ultimately objected to the
submission after the decision.  This suggestion is untenable.  The
determination that information is material is made when the
information is received, not in retrospect after a final decision.
Furthermore, a decision of materiality does not pre-ordain the
Attorney General's ultimate preclearance decision.  And, although a
determination of materiality should not be limited to an analysis of
the Attorney General's subsequent preclearance letter, the Attorney
General clearly did give careful consideration to the LULAC decision
in his preclearance objection.  J.S. App. 83.  /23/

   3. Appellants also contend that the district court erred with
respect to the applicability of Section 5 to the Travis County
judgeships.  J.S. 14-16.  Although the United States did not challenge
those judgeships in our complaint, we commented on the issue briefly
at the district court hearing.  We believe that one of the judgeships
(District 201) was subject to Section 5 preclearance requirements
because, although the legislation was enacted before November 1, 1972,
the legislation expressly provided that its effective date was January
1, 1973.  J.S. App. 4.  Thus, it was not "in force or effect" on
November 1, 1972 within the meaning of Section 5.  See Perkins v.
Matthews, 400 U.S. 379, 394 (1971) (Section 5's "reference to the
procedure 'in force or effect on (the coverage date),' must be taken
to mean the procedure that would have been followed if the election
had been held on that date.");  City of Lockhart v. United States, 460
U.S. 125, 132 (1983) (in determining whether a change must be
precleared, the proper comparison is between the new system and the
system "actually in effect" on the coverage date).  /24/ The other
judgeship (District 200), however, was not subject to preclearance
because its effective date was before November 1, 1972.  J.S. App. 4.
In other words, we believe that the appropriate date for determining
Section 5 applicability is not the date of enactment (as the district
court held, id. at 6) and not the date of election (as appellants
contend) but rather the effective date for the particular offices at
issue.  /25/

                              CONCLUSION

   With respect to the Chapter 632 judgeships, the judgment of the
district court should be reversed and remanded for further
proceedings.  With respect to the Travis County judgeships, the
judgment of the district court should be reversed with respect to
District 201 and affirmed with respect to District 200.

   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

   CLIFFORD M. SLOAN

      Assistant to the Solicitor General

   JESSICA DUNSAY SILVER

   THOMAS E. CHANDLER

      Attorneys

   APRIL 1991

   /1/ The district court consolidated a Section 5 complaint by the
United States and a Section 5 complaint by appellants, and the court
issued a single decision and judgment covering both cases.  J.S. App.
1, 41, 93.

   /2/ The Attorney General has delegated his Section 5 preclearance
authority to the Assistant Attorney General, Civil Rights Division.
28 C.F.R. 51.3.  References in this brief to actions of the Attorney
General include references to actions of the Assistant Attorney
General, Civil Rights Division, acting on behalf of the Attorney
General.

   /3/ The State's letter was dated February 8, 1990, and received on
February 13, 1990.  J.S. App. 47, 68, 74.

   /4/ These provisions of the Texas Constitution had been precleared
by the Attorney General by letter dated October 1, 1985.  J.S. App. 9.

   /5/ The LULAC panel decision rejected the Section 2 challenge on
the ground that Section 2(b) does not apply to elected trial judges in
Texas.  902 F.2d at 308.

   /6/ On May 15, 1990, the Attorney General received from the State a
copy of the LULAC panel decision.

   /7/ The letter stated that the submission was being withdrawn
pursuant to 28 C.F.R. 51.25.  J.S. App. 74.  This regulation provides
that "(a) jurisdiction may withdraw a submission at any time prior to
a final decision by the Attorney General."

   /8/ In LULAC, the en banc court held that the Section 2 results
test does not apply to judges because they are not "representatives"
within Section 2(b) of the Act.  914 F.2d 620, cert. granted sub nom.
Houston Lawyers Ass'n v. Attorney General of Texas and LULAC v.
Attorney General of Texas, Nos. 90-813 and 90-974, 111 S.Ct. 775
(1991) (to be argued on April 22, 1991).  The Section 5 issues in this
case are distinct from the Section 2 issue in LULAC.  See note 23,
infra.

   /9/ On November 20, 1990, the Attorney General sent the State a
letter clarifying that his objection was to nine of the 15 new
judgeships (in Dallas, Lubbock, Tarrant, and Victoria Counties).  J.S.
App. 85-87.

   /10/ The court also held, with respect to the sections of the Texas
Constitution, that the time could not have been extended pursuant to
28 C.F.R. 51.37(a), a provision governing the Attorney General's
request for additional information.  J.S. App. 11.  The court stated
that although it was unclear whether the Attorney General in fact
requested the information, even if he did so, the regulation was not
applicable because it states that the request shall be made "by
letter," and in this case there was only a telephone call.  Ibid.

   /11/ With respect to the Travis County judgeships challenged by
appellants, the court held that, since the legislation creating the
two judgeships was enacted prior to the date Texas became covered
under the Voting Rights Act, the judgeships were not subject to
Section 5 preclearance.  J.S. App. 4-6.  The court stated that "the
date of enactment, rather than the dates of the first elections for
the respective two courts, is the appropriate date by which to
determine applicability of section 5." Id. at 6.

   /12/ Judge Bunton agreed with the majority that the Travis County
judgeships did not require preclearance.  J.S. App. 17, 29.

   /13/ The United States' only discussion of the "materially
supplementing" issue was at the district court hearing, which was held
approximately two weeks after the filing of the United States'
complaint;  that hearing also included extensive testimony by various
judges, and much of the discussion focused on other issues, such as
the appropriate remedy for the claimed Section 5 violation.  See,
e.g., Tr. 62-144, 150-156.

   /14/ Indeed, many of the submissions the Attorney General receives
are "bare bones," and do not comply with the required contents for a
submission set forth in 28 C.F.R. 51.27.

   /15/ In Georgia v. United States, 411 U.S. at 539-541, this Court
held that the 60-day period for review of submission may recommence
upon the Attorney General's receipt of additional information that he
requested;  in City of Rome, 446 U.S. at 170-172, the Court held that
the 60-day period for review of reconsideration requests, established
by regulation, may recommence upon the receipt of additional
information submitted by the jurisdiction.

   /16/ See Harris v. Bell, 562 F.2d 772, 774 (D.C. Cir. 1977)
(Attorney General's decision to withdraw a Section 5 objection is not
reviewable);  Dotson v. City of Indianola, 521 F. Supp. 934, 943 (N.D.
Miss. 1981) (Attorney General's decision to limit his objection to one
annexation when four annexations were submitted as a "package" is not
reviewable), aff'd mem., 456 U.S. 1002 (1982);  City of Rome v. United
States, 472 F. Supp. 221, 234 n.64 (D.D.C. 1979) (Attorney General's
determination that he required additional time to consider
supplemental information in a reconsideration request is not
reviewable), aff'd on other grounds, 446 U.S. 156 (1980);  City of
Rome v. United States, 450 F. Supp. 378, 381 (D.D.C. 1978) (Attorney
General's decision not to use formal hearings in Section 5
determinations is not reviewable), aff'd on other grounds, 446 U.S.
156 (1980).  See also Leroy v. City of Houston, 831 F.2d 576, 580 (5th
Cir. 1987) (noting, in attorney's fees context, that "(a)dministrative
pre-clearance activities (under Section 5) are excluded from direct
judicial review because speedy, definitive oversight of local election
procedures, required by the statute, could not be achieved by allowing
judicial review"), cert. denied, 486 U.S. 1008 (1988).  In the only
decision directly addressing the Attorney General's determination that
additional information materially supplemented a State's submission,
the district court found it unnecessary to reach the reviewability
issue because the court concluded that the information was a material
supplementation.  Lucas v. Bolivar County, 567 F. Supp. 433 436-437
(N.D. Miss. 1983).

   In Briscoe v. Bell, 432 U.S. 404 (1977), decided the same day as
Morris v. Gressette, this Court held that the Attorney General's
determination under Section 4(b) of the Act that a jurisdiction is
covered by the Act is not reviewable.  The Court primarily relied on
the specific nonreviewability provision of Section 4(b), but also
noted "(t)he significant part played by the discretionary authority of
the Attorney General in administering the Act * * * underlined by
Morris v. Gressette." 432 U.S. at 412.

   /17/ This is not to say, of course, that all review of all Section
5 issues is precluded.  Review is unavailable for the Attorney
General's discretionary determinations within his statutory authority;
 review is available, however, for issues concerning statutory
requirements and non-discretionary duties.  Courts thus may
appropriately review (1) whether the requirements of Section 5 have
been met with respect to a particular change (e.g., whether a change
was subject to Section 5 and whether the change was precleared, see
McCain v. Lybrand, 465 U.S. 236, 250 n.17 (1984));  (2) whether the
Attorney General's actions are consistent with the statute (e.g.,
whether his regulations comport with the statute, see Georgia v.
United States, 411 U.S. at 536);  and (3) whether the Attorney General
has discharged a non-discretionary duty imposed by statute or
regulation (e.g., whether the Attorney General's request for
additional information, suspending the 60-day review period until the
submission of the information, was by letter, as required by 28 C.F.R.
51.37).

   /18/ Cf. 28 C.F.R. 51.52(c) ("An objection shall be interposed to a
submitted change if the Attorney General is unable to determine that
the change is free of discriminatory purpose and effect.").

   /19/ Indeed, judicial review of the Attorney General's
determination under 28 C.F.R. 51.39 might permit a submitting
authority to manipulate the Section 5 process in an unacceptable
manner.  For example, a jurisdiction could repeatedly supplement its
original submission in an attempt to persuade the Attorney General to
preclear the voting change.  If the Attorney General objected, the
jurisdiction could seek to overturn that objection by arguing that the
supplemental information was not material to the submission and thus
did not extend the time for the Attorney General's objection.

   /20/ E.g., Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 359 (1989);  Udall v. Tallman, 380 U.S. 1, 16-17 (1965);  Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).  See also
Martin v. OSHRC, No. 89-1541 (Mar. 20, 1991), slip op. 5;  Lyng v.
Payne, 476 U.S. 926, 939 (1986).

   /21/ See, e.g., Blanding v. DuBose, 454 U.S. 393, 401 (1982).

   /22/ For example, in the years 1986-1990, the Attorney General had
to review an average of over 17,000 changes encompassed in over 3,500
submissions each year under Section 5.  Those numbers can be expected
to increase in the next several years, as electoral changes are made
in response to the 1990 census.

   /23/ Most of the judgeships at issue here are also at issue in
LULAC (the judgeships in Dallas, Lubbock, and Tarrant Counties).  The
Section 5 issues in this case, however, are distinct from the Section
2 issue in Houston Lawyers Ass'n, No. 90-813, and LULAC, No. 90-975.
The issue in those cases is whether the results test in Section 2(b)
is inapplicable to district judgeships in Texas, either because judges
are not "representatives" within the meaning of that term in Section
2(b) (as the en banc court held) or because the district judgeships
are single person offices (as the court of appeals panel held).  The
term "representatives" does not appear in Section 5, and, as the en
banc LULAC court recognized, judicial elections are within the scope
of Section 5.  914 F.2d at 629.  To be sure, if this Court agrees with
the en banc LULAC court (or with the panel), it would clearly affect
the basis for the Attorney General's results objection, but the proper
vehicle for raising that issue would be a request for reconsideration
pursuant to 28 C.F.R. 51.45 (or a declaratory judgment action), not a
decision to ignore the Attorney General's Section 5 objection.
Additionally, in this case, the Attorney General raised a purpose
objection as well as a results objection (J.S. App. 82-83, 86), and
the Houston Lawyers Ass'n/LULAC cases concern only the results test.

   We note that the district court criticized the Attorney General
for, in its view, failing to heed the LULAC decision.  J.S. App.
13-15.  The Attorney General's action was entirely proper, however --
the Attorney General was faced with a 60-day review period, imminent
elections, and the strong likelihood of further appellate review of
the LULAC holding, factors which counselled strongly against a failure
to object (and preclearance of the change) based solely on the court
of appeals' holding in LULAC.  Furthermore, as noted above but not
mentioned by the district court, the Attorney General's objection
included a discriminatory purpose objection, a subject not at issue in
LULAC.

   /24/ The district court did not consider the significance of the
effective date;  it considered only the date of enactment and the date
on which elections were held.  It might therefore also be appropriate
to remand to the district court for further consideration of this
issue as well.

   /25/ The district court incorrectly stated that the United States
and the Attorney General supported appellants on both judgeships.
J.S. App. 3.  See Tr. 158-159.