William H. Rehnquist: We'll hear argument now in Number 97-29, Texas v. The United States. Mr. Aguilar.
Javier Aguilar: Mr. Chief Justice, and may it please the Court-- The temporary appointment of a master or a management team with limited powers to assist school districts that are not achieving the academic goals set by the State is not a change with respect to voting but, rather, it is a temporary change with respect to governance. More precisely, such an appointment does not result in the de facto replacement of the elected school board. A review of the statute, which you can find at pages 90a through 92a of the jurisdictional statement appendix shows that the board members... excuse me, shows that the master and the management team have very limited powers. They cannot take any action concerning any type of district elections. They cannot take any action with regard to the number of board members to be elected, or the method of selecting the board member. That is, they can't change from single member districts to at large districts to cumulative voting, which is available to them under the Education Code. They may not set a tax rate for the district. They cannot adopt a budget that's different than the one that the school board members themselves have voted for and adopted.
Antonin Scalia: If all that is true, Mr. Aguilar, then you have no problem.
Javier Aguilar: We... I--
Antonin Scalia: Just go ahead and do it, and--
Javier Aguilar: --That is correct, Your Honor. That's--
Antonin Scalia: --So why are you here?
Javier Aguilar: --We're here because in fact, when this legislation was passed, we submitted all of the amendments to the Education Code, both those that affected voting and those that didn't. We just presented it with all of them. We did not identify these provisions as being election related. The Department of Justice, the Attorney General informed us that they believed that they were, and requested us to submit further information.
Antonin Scalia: That they were?
Javier Aguilar: That they--
Antonin Scalia: Were always, or could be?
Javier Aguilar: --Well, that they believed that--
Antonin Scalia: Might be.
Javier Aguilar: --Might be.
Antonin Scalia: Might be.
Javier Aguilar: More appropriately stated. So we answered their questions, thinking that once we provided them with answers to their questions, that they would agree with us that in fact they were not election related. Well, that is not what happened, Justice Scalia. They in essence precleared the provisions, and I'm talking about as--
Antonin Scalia: They're unwilling to say that none of these... none of these might not be?
Javier Aguilar: --Their unwillingness... well, I guess what they're saying is that they believe, since they precleared them as enabling legislation, that they... once we actually put them into effect in those situations when we need them, to utilize them, that they will result in--
Antonin Scalia: Well, is that what it means? I mean, I interpret that to mean there is nothing in this enabling legislation, in and of itself, that's bad, and we just don't want to say right now whether, as it is later implemented, something might be bad, which seems to me a sober thing for the Justice Department to do.
Javier Aguilar: --Well, Your Honor, we--
Antonin Scalia: We would probably do the same thing, when a case is brought before us. We don't rush into things we don't have to decide. You asked them to clear this statute, and they say, the statute's okay with us. It's just enabling legislation.
Javier Aguilar: --But we didn't ask them to... we went ahead and provided them with the information they requested. We did it, if you will, under protest. We informed them that we did not think these were election related. We tried to make the argument, and we did make the argument as to why we thought it wasn't. I think the statute contains--
Sandra Day O'Connor: Well, Mr. Aguilar, I share Justice Scalia's concerns. You want us to say that never, under any circumstance, under any implementation, could this be covered under section 5 of The Voting Rights Act.
Javier Aguilar: --That's correct, Justice O'Connor.
Sandra Day O'Connor: And it isn't even ripe. It hasn't been implemented. Seems to me that's all the Attorney General is saying and, like Justice Scalia, what prevents the State of Texas from just going ahead and implementing it? If somebody thinks there's a problem, they'll file a suit, and in addition, even if the district court here were to say, fine, I don't see a problem, it wouldn't bind private parties. They could always file a suit after implementation. I mean, I don't know why you're here.
Javier Aguilar: We're here, Your Honor, because we believe that the statute as written, and as limited by provision (e) on page 91a, in essence passes that bright line test that this Court established in Presley.
Anthony M. Kennedy: Well--
Javier Aguilar: There is no way... there's no... I'm sorry, Justice Kennedy.
Anthony M. Kennedy: --You began by reciting many of the things the trustees can do. One of the things the trustees can do is to appoint other people to exercise all of the power over the board of trustees under subsection (9), as I understand it.
Javier Aguilar: That is true.
Anthony M. Kennedy: The master can appoint a board of managers composed of residents that exercises all the powers and duties of the board of trustees.
Javier Aguilar: That's not correct, Justice Kennedy. The commissioner, under subdivision (9)--
Anthony M. Kennedy: That's not--
Javier Aguilar: --The commissioner, under subdivision (9), is the one that can appoint a board of managers, and we did not challenge provisions (9) and (10). We are not here today suggesting that that is... that does not fall within section (5). We have no quarrel with the Attorney General's assessment with regard to (9) and (10).
Anthony M. Kennedy: --So you would submit to the Attorney General for preclearance any proposal to invoke the powers under (9) and (10)?
Javier Aguilar: Under (9) and (10) we would submit them. Under (9), I think that's where you have a de facto replacement, because in fact the commissioner has the authority to select members of the school... I mean, citizens of the school district, residents of the school district and appoint them as board of managers to replace the elected board, and they'll have all the power of the board. I think that is more in keeping with what this Court had in mind in Presley with regard to the reference to a de facto replacement, but under no circumstance can that happen under numbers (7) and (8), because the legislature has gone out of its way to define away the problem, if you will, to make sure that it took it out of the coverage of section (5) by allowing them to have authority--
John Paul Stevens: Could you help me just a little bit--
Javier Aguilar: --Yes, Justice Stevens.
John Paul Stevens: --on why (7) and (8) don't raise the same problem?
Javier Aguilar: There is--
John Paul Stevens: Because if you read (7) and (8) against the (e) over on 91a about all the things the management team and the master can do, they can direct any action to be taken, can't they?
Javier Aguilar: --They can direct any action to be taken... the reason... let me back up and start at the beginning, Justice Stevens. The reason a master or a management team are needed is because there are severe problems with the school district. For instance, a... they have schools, any number of schools that are--
John Paul Stevens: Yes, but that's also true of (9) and (10).
Javier Aguilar: --That's correct, but we're not arguing (9) and (10).
John Paul Stevens: I'm really trying to ask you to explain why you take one position on (9) and (10) and another position on (7) and (8).
Javier Aguilar: Because... (10) is easy, I think. That's an annexation. We don't have any quarrel with the fact that that falls within section (5). (9) I think falls within the caveat in Presley about de facto replacement. I think that probably satisfies what this Court had in mind. But (7) and (8), that is not a de facto replacement, and that's the only thing we're talking about possibly being a reason for it falling within section (5), because the legislature has said in the limitations found in subdivision (e) that there are certain things that the master or management team cannot touch, for instance, setting of the tax rate, or the amount of money that the citizens in that--
John Paul Stevens: No, I understand that, but Number 1 under (e) is may direct an action to be taken by the principal of a campus, the superintendent of the district, or the board of trustees of the dist--
Javier Aguilar: --Well--
John Paul Stevens: --They tell the board of trustees what to do.
Javier Aguilar: --Well, they can tell the board of trustees what to do with regard to solving the problem in issue. That is correct, Your Honor. That is--
John Paul Stevens: Why is that different from (9)? That's what I don't quite see.
Javier Aguilar: --Because of the limitations they cannot... if we conceive of the authority of the elected board members as being a pie, we're not taking the entire pie away from them the way we are in (a)(9). We may be taking a portion away, but we're never going to take all of it away. They still make decisions with regard to how much total money is spent, how much money is raised, and anything having to do with elections, whether it be bond elections, or the--
Anthony M. Kennedy: I just don't read the statute that way when it says you may direct under (7), may direct an action to be taken by the board of trustees. I would say you spend the money for the high school and not the elementary school, or vice versa.
Javier Aguilar: --Well, that is... you're right with regard to the allocation of the total amount of the budget. You're right, Your Honor. The master or the management team, in order to solve the prob... it may be that the problem is that they're not spending money appropriately in certain programs in order to get the school kids to pass their reading and their math exams that they have to take every year from grades 3 to 8, and so they'll direct it... maybe they ought to emphasize that aspect, and spend money on those programs, and perhaps teachers in those programs. But they are... they still don't have the entire pie, if you will. They still don't have all the authority of the board, because they can't touch elections. They cannot set the ultimate level of expenditures. For instance, if the school board says that the budget for next year will be $50 million, the board... the... excuse me, the master or the management team can't go in there and require them to increase the budget or decrease the budget. That is something that State law has given, and this provision reserves to--
William H. Rehnquist: But he... but the manager or master could require that the budget items be reallocated?
Javier Aguilar: --Yes, Your Honor. They have to in order to be able to solve the... if, in fact, the problem is the result of misguided, if you will, management in terms of not spending the money appropriately, they're spending too much money in athletics and not as much money on reading and writing and arithmetic, well, then they have the authority to say you've got to direct more money to these essential items in order for you all to meet the State standards with regard to passage rates on the achievement tests. Yes, Justice Stevens.
John Paul Stevens: Could they order one school to bus children to another school?
Javier Aguilar: I beg your pardon?
John Paul Stevens: Could they order busing from one school to another--
Javier Aguilar: No, they cannot. No, they cannot, Your Honor.
John Paul Stevens: --spending money? Why not?
Javier Aguilar: Well, because that would be... if they're under a court order to bus--
John Paul Stevens: No, no, no--
Javier Aguilar: --they cannot in any way... they cannot in any way interfere with that.
John Paul Stevens: --I mean, just voluntarily adopt a program, we want to reallocate the students between two schools, say. Just say, we want to bus the third grade over to here and the fourth grade back here. Could they--
Javier Aguilar: Well, I--
John Paul Stevens: --You know, sometimes they're--
Javier Aguilar: --I guess--
John Paul Stevens: --Boards do concern themselves with where the children will go to school.
Javier Aguilar: --Right. I don't think... it's possible that that could happen if, in fact, there's some reason to do that. In other words, in order to solve the problem that have them there to begin with, but ordinarily, no, they wouldn't do that.
William H. Rehnquist: But that's... it's fairly speculative, some of these answers. The Texas courts haven't interpreted these provisions, have they?
Javier Aguilar: No, they have not, Your Honor.
William H. Rehnquist: So that just what the law does permit the masters to do is really not clearly established.
Javier Aguilar: Well, I think that what they can do is limited by the problem at hand and how they go about solving it, the creativity of trying to solve that problem, but that's not where we... that's not the argument we're relying on. The argument we're relying on--
Antonin Scalia: Why wouldn't raising more money be? Is that explicitly excluded?
Javier Aguilar: --That is excluded under (e)(6), may not adopt a budget for the district... that's on page 92a--that provides for spending a different amount, exclusive of required debt service, from that previously adopted by the board of trustees. What I was trying to say was that we believe that the statute, when reviewed, clearly shows that we're not dealing with section 5 coverage regarding changes in the manner of voting, the candidacy requirements, the composition of the electorate, the creation or abolition of an elected office and, indeed, the Attorney General's sole basis for the preclearance as enabling legislation was the issue of de facto replacement. It's our position that this statute clearly shows that we can never even get to that point, that in fact--
Ruth Bader Ginsburg: Mr. Aguilar, this is a rather novel procedure as far as I know. Has there been any other case where a State or covered jurisdiction has sought to sort of jump the gun this way by bringing a noncoverage claim in the D.C. District Court?
Javier Aguilar: --No, Your Honor, and I think there's a good reason for that. Prior to 1992, before this Court established its bright line test between what is a change with respect to voting and what is a change with respect to governance, I don't think there really was a good... a good understanding... anything that affected voting in any way, I believe, is the way I would characterize the pre-'92 law, would be covered by section 5. I think the bright line test laid down by this Court in Presley in '92 gave us the opportunity and gave the legislature the opportunity to say, well, how can we effect these provisions to make sure that they're utilized quickly when necessary without having to go through the preclearance route, because it's really not their intention to have any effect on elections, and--
Antonin Scalia: Mr. Aguilar, what... this taking over the operations of the board is sort of a... in extremis remedy. It's the last step.
Javier Aguilar: --(9) and (10) are the last steps, yes, Your Honor.
Antonin Scalia: Well... oh, I'm sorry. You're right. (9) and (10) are taking over, in your estimation. What the Government contends might in some circumstances be a taking over, replacing the board with a director as to certain issues, that only comes after other remedies have tried and been failed, right?
Javier Aguilar: That is correct.
Antonin Scalia: There's six or seven of them?
Javier Aguilar: There's six of them listed on page 90a, a public notice of the deficiency--
Antonin Scalia: Yes.
Javier Aguilar: --is the first one. The second one is having a hearing--
Antonin Scalia: Right.
Javier Aguilar: --conducted by the board. I mean, there are a lot of other interventions, if you will, not as draconian as (9) and (10).
Antonin Scalia: Right, draconian is the word, and you would hope, I expect, never have... never to have to use that, wouldn't you?
Javier Aguilar: We would hope that the school boards, and we believe that the vast majority, the overwhelming majority of elected school board members of all 1,056 school boards in Texas are dedicated to making sure that their school districts--
Antonin Scalia: Right. I would hope so.
Javier Aguilar: --meet the standards that the State has--
Antonin Scalia: Well, I guess you have used it. But would you say for sure that you know that in at least one case you're going to have to take over? Well, indeed, you have.
Javier Aguilar: --Well--
Sandra Day O'Connor: Texas has in one case.
Javier Aguilar: --We have in one case.
Sandra Day O'Connor: We have some evidence of that.
Javier Aguilar: The... we made mention of the fact of the Wilmer Hutchins Independent School District, where we--
Anthony M. Kennedy: Well, can you tell us, what were the powers that the master was directed to exercise in this Dallas district?
Javier Aguilar: --Well, if I may go outside the record, I certainly can answer that question. Basically the master... the management team went in to try to, on the one hand increase the pass rate and drop out rate of certain schools in that district, and on the other hand make sure that--
Anthony M. Kennedy: Well, was the master directed to exercise powers (1) through (7), or (1) through (9), or was it that specific? In other words, there's... we're talking about this lodging that the Solicitor General made with us just a few days ago where the special master was in fact appointed for this district near Dallas--
Javier Aguilar: --Correct.
Anthony M. Kennedy: --or in Dallas County, and I want to know, was the master appointed and was he specifically directed to exercise statutory powers that were specifically listed under (a)(1) through (10)?
Javier Aguilar: No, Justice Kennedy, that's not the way it works. He was... the commissioner was authorized to appoint the master under (a)(7), and then under (a)(7) the powers that he can appoint are circumscribed or limited under (e). In other words, they have the authority to go in and fix the problem, but--
Anthony M. Kennedy: Well, was he specifically appointed under (a)(7) and not under (a)(8)?
Javier Aguilar: --That is my recollection, yes. There's no other way that you can appoint a master, Your Honor, under our scheme. It certainly wasn't an (a)(9). It was not a board of managers, and so it's (a)(7) that deals with an appointment of a master.
Stephen G. Breyer: Could you, before you finish, explain how you got into this Court? As I read the statute it says, when a State... paraphrasing it, when a State enacts or administers a measure that affects voting, then the State can go to the special three judge court and ask for a declaration that it doesn't affect voting in a racially discriminatory way. Well, you're saying this is a measure that doesn't affect voting, so if you think it's a measure that doesn't affect voting, how did you get into this Court? How can you say to the Court, we invoke your jurisdiction because we have a measure here that we think affects voting, but we want you to say it doesn't affect voting.
Javier Aguilar: Yes, Justice--
Stephen G. Breyer: How do you get into the Court on that kind of a theory?
Javier Aguilar: --Let me explain. We got into the Court because we were precleared, if you will, against our will, because we didn't think these measures, (7) and (8), were affecting voting. The Attorney General basically told us that you've got to preclear any utilization of (7) or (8) before we can say anything about it, therefore putting us in the process, the section 5 process. We think that that... that that legal determination can be reviewed by a three judge panel.
Stephen G. Breyer: Why? I mean, why can't... if you... maybe you have some regular declaratory judgment action. You can just go file... I don't know if you do or not, but I don't see how this... how you get within this statute on the theory that you don't affect voting. At least that's the trouble that I'm having. I don't see why a State... this seems to be a statute set up for States that believe they have measures that do affect voting, and they believe that those measures are not discriminatory.
Javier Aguilar: Your Honor--
Stephen G. Breyer: Is there any authority or anything that a State--
Javier Aguilar: --Well, no. As I answered Justice O'Connor, we have no... this has never been done before as far as we know, and what I mean by that is, we don't know of an instance where a State has gotten a ruling from the Attorney General that a provision falls within section 5 when the State believes, after applying Supreme Court precedent, that it is not part of section 5. That's why we've--
Stephen G. Breyer: --All right. So why would you think the judges... the other side thinks it does affect voting, so you can understand why they wouldn't raise it, but if you're a judge... you're the one who's invoking the Court's jurisdiction.
Javier Aguilar: --We're invoking the Court's--
Stephen G. Breyer: So you say, judge, I want you... to tell you something. We're here because we have a statute that affects voting. By the way, we don't.
Javier Aguilar: --Well--
Stephen G. Breyer: I mean, how... on those circumstances why wouldn't the judge say, the person who's invoked our jurisdiction concedes we don't have it?
Javier Aguilar: --The--
Stephen G. Breyer: So we don't have to go further.
Javier Aguilar: --The... what we did with the court below was, we said that this is a section 5 issue with regard to the coverage question. We believe that every preclearance action certainly comes with the predicate question of whether this is a change affecting voting. I think that if--
Stephen G. Breyer: How do we get around the statute's language?
Javier Aguilar: --I beg your--
Stephen G. Breyer: How do... my problem is how to get around the statute's language.
Javier Aguilar: --Well, I think we're relying on this Court's decision in Allen. This Court was able to get around the statute's language and allow for private plaintiffs to file an action on the coverage question and then enjoin a covered jurisdiction from proceeding with the enactment. We're suggesting that the language in the rationale of Allen gives us the right to come before the three judge panel in the District Court of the District of Columbia in order to review an erroneous... what we believe, in... with all due respect is an erroneous legal determination with regard to the coverage question by the Attorney General. I think--
Ruth Bader Ginsburg: Mr. Aguilar, I think when I asked you the question, has a pure coverage action ever been brought before, you were candid and said no, but hasn't the coverage issue been tied to a routine section 5 case where the District says, we don't think this racially discriminates and, moreover, we don't even think it affects voting? That kind of claim has been brought.
Javier Aguilar: --Absolutely, Your Honor. We were involved in that kind of claim previously. There's no question about that. What we're trying... if we can... the logic is, if we are entitled to bring an action in the district court that raises both the predicate question and the question of purpose and effect, then we believe that we also have, under the logic of Allen, the right to bring the coverage question only when we are in a situation where we have, for lack of a better term, been induced to get preclearance by the Attorney General on an issue that we don't believe falls within... on an enactment we don't believe falls within section 5 to begin with, based on our reading of Presley. We believe that this Court attempted to draw a distinction in Presley between those enactments that respect voting and those that do not, and we are attempting to bring to this Court, and initially to the court below, a declaratory judgment seeking a declaration that in fact the legal judgment of the Attorney General with regard to the application of Presley is incorrect, and the only--
Ruth Bader Ginsburg: Why couldn't you have waited till, say, the first case? The first case comes up, then you can do what is not uncommon. That is, you say, here's this case, and what we want you to rule on in this case, you'll be able to see that under these, whatever it is, (7) and (8), this is not simply not now, but not ever, so get it the way the statute has worked so far.
Javier Aguilar: --Well, let me explain it this way, Your Honor. Once we were precleared as enabling, then... if we were to ignore... if we were to ignore their determination and just say, well, we think they're wrong, we're just going to go ahead and enact, and just utilize this whenever we want to because there's no way it falls within section 5, in all likelihood we will either get sued by private plaintiffs, or we'll get an enforcement action from the Attorney General. If we get sued by private plaintiffs, in all likelihood we will lose on our--
Ruth Bader Ginsburg: Well, let me interject, because there's one thing you could have done. You say, okay, we're going to be delayed a little the first time we do it, but then we'll be home free, so you could have brought the case the first time. The first time you were contemplating... whatever.
Javier Aguilar: --Oh, I see. Instead of opting--
Ruth Bader Ginsburg: And take advantage of the expedited whatever that both the district court said it had and the Attorney General.
Javier Aguilar: --Well, if you're saying that back at the time when we presented the entire Education Code and then identified those areas that were election related for preclearance that we should have taken this issue and gone to the District of Columbia... is that--
Ruth Bader Ginsburg: No. I mean the first time that you--
Javier Aguilar: --Actually--
Ruth Bader Ginsburg: --had whatever you had in that district near Dallas.
Javier Aguilar: --Oh, I'm sorry. The reason we didn't do that, Your Honor, was because we wanted to act quickly. We did not want to have to wait for a year or two to get a judicial resolution of whether this was a change affecting voting, or whatever, and--
Ruth Bader Ginsburg: And there... it didn't take a year or two, did it, in the case that we have? It took a few months.
Javier Aguilar: --With regard to preclearance of the--
Ruth Bader Ginsburg: Yes.
Javier Aguilar: --Wilmer Hutchins? It took 90 days, and during that 90-day period of time... again, I'm going out... well, actually, we mention this in our briefing before this Court and the court below. During that period of time IRS and FBI agents were going in raiding the district offices because they suspected some financial goings on. We could not do anything as a State to reach in there and fix the problem so that the schoolchildren would have--
Antonin Scalia: Mr. Aguilar, the law moves slowly. I have never heard the argument before that a case is ripe because if I have to wait until it's really ripe in order to litigate this issue it's going to take a couple of years. I mean, that's not an argument that makes the case ripe now.
Javier Aguilar: --Well, let me--
Antonin Scalia: What is it that you were compelled to do by having to wait until one of these horribles actually happened in order to litigate it now, something like in Abbott Labs. The drug company's primary conduct was immediately affected. They were put to the choice of either printing on the labels the ingredients, as the rule required, or else being liable for an enormous amount of damages as well as penalties. Now, that's something very substantial. What does it cost you to wait until the thing happens, other than time?
Javier Aguilar: --Well, federalism is ultimately our greatest concern, Justice Scalia. We believe that if these enactments... if we're correct, and they're truly not--
Antonin Scalia: Do you think it's truly not an individual freedom? I mean, you're raising the federalism concern of the State, but that seems to me no different from the individual freedom concern of the private citizen who's affected by a rule, and the private citizen has to wait until the rule bites.
Javier Aguilar: --Well, we're also concerned about... well, our concern is with federalism. If we don't fall within the purview of section 5, then we should not have to incur the burdens of section 5. We believe that this is a process where--
Sandra Day O'Connor: But there's a time and place to decide that, and this isn't the time. If Texas thinks they have a crisis in a school district and they're going to appoint a management team, then go ahead and do it, if you're satisfied it isn't affecting voting. Do it. If the Attorney General has a complaint, they'll file it. If some private individual has a complaint, they'll file it. I just don't see how Texas belongs here now.
Javier Aguilar: --Well, Your Honor, if we were to do that... that's what I was trying to explain earlier. If we were to do that and just ignore what has happened with us before the Attorney General, then in all likelihood we would get, I think, private litigation, or private plaintiffs filing a lawsuit saying, wait a minute, you can't bring the master or management team in because this is a change affecting voting, and you haven't precleared. And I think the first thing that will happen is, in all likelihood we'll lose a preliminary injunction because, of course, the Attorney General's judgments are accorded deference by the courts, and it will again delay the process that we're trying to institute, and that is quickly move in and try to--
Sandra Day O'Connor: Well, but when you did... when you did apparently submit something to preclearance in the Dallas district it took essentially a couple of months. The law says they have to act within 60 days, doesn't it?
Javier Aguilar: --It took them 90 days, Your Honor. We... I personally phoned and asked for them to expedite it, and in fact we got, on the sixtieth day, more questions asked and 30 days later we got a result. The fundamental... our fundamental position is that when you apply Presley to this statute, to the words of this statute, we... we're of the opinion that it does not fall within section 5, because it's certainly not election related, and it's certainly not the abolition or creation of a... of a office. And finally, the only other thing it could be would be a de facto replacement. And what we're arguing is, it can never be a de facto replacement, because the State, in the provisions, has reserved enough, we believe, authority to the school board members... you see, the school board continues to meet, continues to debate, continues to vote on important items like tax rates, like school bond elections, like the amount of money to be spent on the school for the following years. Those are areas that our master or management team don't have any authority for. So it is right, from the perspective of we have a statute that needs to be interpreted. We have a wrong, and the wrong to us is an incorrect determination by the Attorney General that this falls within section 5, seen through the prism of Presley, and the immediate impact on us is that it's a federalism one mixed up with the fact that there is delay in trying to get State processes that our legislature, elected by the people, wanted to put in place in order to strengthen our schools. Everybody's concerned with stronger schools.
Sandra Day O'Connor: Well, I don't think... I don't see how waiving the magic word federalism alters the ripeness analysis.
Javier Aguilar: I'm not suggesting that it magically alters it, Your Honor. I'm just saying that it is in the ripeness analysis you've got to consider the federalism concerns when there has been an incorrect determination that an enactment falls within section 5 when in fact it doesn't. This Court itself in Presley, in Allen, in Katzenbach, all of those cases, been consistent in saying that section 5 is a draconian measure. That was passed for good reason. We're not disputing that, but what we are saying as with regard to these two provisions they do not fall within the rubric, within the coverage of section 5. Then we have a federalism issue here, the very same federalism issue that this Court has consistently noted in all of these cases. Thank you very much.
William H. Rehnquist: Thank you, Mr. Aguilar. Mr. Wolfson, we'll hear from you.
Paul R. Q. Wolfson: Mr. Chief Justice, and may it please the Court-- For two reasons we think the district court was not empowered to decide the merits of Texas' request for a declaratory judgment in this case. First, as that court actually concluded, the case was not ripe for a judicial decision in both the Article III and the prudential senses of ripeness and, second, the court in our view lacks statutory jurisdiction to decide this kind of case, which raises only the question of coverage under section 5 and does not actually request preclearance. Because the district court disposed of the case on ripeness grounds, I'd like to turn to that issue first.
Ruth Bader Ginsburg: Mr. Wolfson, before you do, I don't see that they're truly separate, because if you're right about ripeness, then there can never be this kind of action, because when it's ripe there will always be the actual--
Paul R. Q. Wolfson: Right. I mean, I suppose theoretically if the State were actually... if it were actually implementing one of these sanctions and for some reason it wanted to go to the three judge district court and say, well we... you know, we really want you just to decide the issue on coverage. We... you know, we don't... because we don't--
Ruth Bader Ginsburg: --Isn't that extremely hypothetical? I mean, if you went and you've done it, or you've got the plan and you say, please preclear it, as soon as you do, the moment you do we'll do it, why would you ever want to engage in that kind of--
Paul R. Q. Wolfson: --I don't--
Ruth Bader Ginsburg: --hypothetical exercise?
Paul R. Q. Wolfson: --I don't think you... I mean, the only reason why I think you might is if there were evidence of discriminatory intent and you wanted to come outside of section 5 by saying that you didn't have to... it wasn't covered at all, but I--
Antonin Scalia: The reason you'd want to do it is you don't want to play this game every time. I mean, are you taking the position that even when there is a... an actual implementation of this plan in a certain district, the State of Texas cannot come into the D.C. District Court and say, we think this is okay because it is simply not a change in voting?
Paul R. Q. Wolfson: --They can raise the--
Antonin Scalia: Because nothing under this statute is a change in voting.
Paul R. Q. Wolfson: --They can raise... I think that if they invoke the jurisdiction... well, they can raise that in the courts in two ways. First of all, of course, they can actually implement it, and then... and then raise that as a defense if a private party or a... or the Attorney General brings an action under section 5 in a local district court. But if they go... the way we read the statutory jurisdiction, if they go to the three judge court in the District of Columbia and they say... if they invoke the jurisdiction of the court for preclearance actions they can also say, and we don't think this is a change affecting voting, so we don't have to be here, but that's once they invoke the jurisdiction of the district court in a properly presented preclearance action.
William H. Rehnquist: What about Allen? I mean, that certainly gave a broader construction of the availability of an action under this statute than one might expect.
Paul R. Q. Wolfson: I think that's true. I think that there are factors, though, in this situation... I mean, Allen relied on the notion that there was no other way, really, that a private party could--
William H. Rehnquist: But how... what's that got to do with jurisdiction, the fact that there's no other way that a private party could do it?
Paul R. Q. Wolfson: --Well, in that case Allen really was sort of an implied cause of action case, I think, where the... the Court might not decide it on that way today. It might be viewed as an Ex parte Young type action, or a section 1983 action since Maine v. Thibedaux, but at that time I think the Court was saying there was subject matter jurisdiction under 1343, and there was an implied cause of action under section 5, and then the Court said, well, looking at the statute as a whole we think they need a three judge court. Here we have--
Sandra Day O'Connor: Well, Mr. Wolfson, the Attorney General encouraged Texas to submit this new law to it, to the Attorney General for preclearance, and the Attorney General looked at the first six categories of sanctions and said, fine, that's not the problem. You can implement it. Now, could Texas have gone to the district court in the District of Columbia and said, as to the first six sanctions, look, we want to file this and get it determined right now. It's not an implementation of voting changes.
Paul R. Q. Wolfson: --Right. That would be a--
Sandra Day O'Connor: Would that have... would the court have had jurisdiction to do that?
Paul R. Q. Wolfson: --I think it might. I think that would be what we call a preclearance of an enabling... enabling legislation before--
Sandra Day O'Connor: But that's what they're arguing for sections (7) and (8).
Paul R. Q. Wolfson: --I think--
Sandra Day O'Connor: I mean, I have trouble with your juris... your no subject matter jurisdiction argument.
Paul R. Q. Wolfson: --I think as to (7)--
Sandra Day O'Connor: Why can't the court just say it isn't ripe, and that's the end of it?
Paul R. Q. Wolfson: --I think... well, the court did say it isn't ripe, and our view is that this Court can--
Sandra Day O'Connor: Well, why can't we? I mean--
Paul R. Q. Wolfson: --You can.
Sandra Day O'Connor: --I just... I think your subject matter jurisdiction argument is very troublesome.
Paul R. Q. Wolfson: I'm certainly happy for the Court to resolve the issue on ripeness. I think that... I do think that if Texas... first of all, in terms of preclearing enabling legislation, we're not aware of any situation in which a covered jurisdiction has gone to the three judge district court in the District of Columbia and asked for just enabling legislation to be precleared before it's ever been implemented, and I think just as--
Sandra Day O'Connor: But you can understand the State's concern. If the Attorney General is going to take some extreme position... maybe not this Attorney General, but someone in the future, and say that some absolutely innocent law in a section 5 area nevertheless requires preclearance, why shouldn't the State be able to go to the district court here and say, look, this just doesn't implement it at all?
Paul R. Q. Wolfson: --I mean, there are many occasions... there are many occasions on which, of course, parties want to have their rights adjudicated definitively, and there are even occasions on which the other side wouldn't mind having that done, determined by the courts.
Sandra Day O'Connor: Yes, but the Attorney General would be right in there opposing it, because it's I'm assuming a situation where the Attorney General is taking a very unrealistic view of it.
Paul R. Q. Wolfson: Right, but the fact is that in our... in a system of the Federal courts that we have the courts can't resolve a controversy in advance of... can't resolve a dispute like that in advance of a--
William H. Rehnquist: Well--
Paul R. Q. Wolfson: --Of a concrete case of controversy.
William H. Rehnquist: --But you know, in Allen the court found some way. They said this was the only way this could be done, even though it was a rather circular way.
Paul R. Q. Wolfson: And that's not the case here.
William H. Rehnquist: Why isn't it the case here?
Paul R. Q. Wolfson: Well, there are... well, if the State really... if the State implements... if the State finds it necessary to go so far--
William H. Rehnquist: On Justice O'Connor's hypothesis.
Paul R. Q. Wolfson: --Okay. Right. Well, I... I mean, in Allen, though, there was a ripe controversy. I mean, I think that's an important difference, but--
William H. Rehnquist: Yes, but let's assume that the doctrine of ripeness would prevent many of this kinds of suits from being brought. You're saying not only is it not ripe, but the district court simply had no jurisdiction, and that, I think, is dubious under Allen.
Paul R. Q. Wolfson: --Well, again, I think that in terms of the district court's jurisdiction there are a number of factors that one has to take into account. First, it is a waiver of sovereign immunity problem. The Court has to find an express waiver of sovereign immunity for a suit against the United States, and that... in Allen the Court didn't look at it that way.
Ruth Bader Ginsburg: Mr. Wolfson, can you explain that to me, because I had thought that in 702 the United States was waiving immunity for nonmonetary claims en masse.
Paul R. Q. Wolfson: But this is not... I think Morris v. Gressette really resolves that this is not an Administrative Procedure Act type claim, and it has to fall within--
Ruth Bader Ginsburg: But I can see that the way... although 702 is in the APA, I didn't think it was limited to the APA.
Paul R. Q. Wolfson: --I think our view is that the... that this case has to be resolved only within the confines... the jurisdiction is only within the confines of section 5 itself, and that it's really an exclusive... exclusive mechanism.
William H. Rehnquist: But that wasn't what was done in Allen.
Paul R. Q. Wolfson: Well, in Allen... in Allen--
William H. Rehnquist: In Allen the Court went into 1343.
Paul R. Q. Wolfson: --That's right, but again that was... I mean, at that time I think the Court did not view actions against the States as raising the same sovereign immunity concerns that... as it might now or as it does against suits against the United States. The only basis for jurisdiction for this type of claim is section 5 itself, and that, for the reasons we give in our brief, that's not... we don't find it to fall within section 5.
David H. Souter: No, but Mr. Wolfson, as I understand it, even on your own argument, if they had gone into the D.C. court and said, we want preclearance, it's quite true we asked for preclearance from the Attorney General and we got it only, as it were, 90 percent of the way, we're coming in here and we're asking for preclearance 100 percent of the way... i.e. with no such condition as this enabling legislation, condition 9. And by the way, we also don't think we're covered. On your theory, it seems to me, they could have gotten exactly what they wanted if they had in effect come in and pleaded in that form.
Paul R. Q. Wolfson: Well, if they were... I think if they sought that--
David H. Souter: Is... am I right?
Paul R. Q. Wolfson: --Well, once they're implementing--
David H. Souter: Because you said, you know, if they come in and they ask for preclearance and then they say, as it were, as an afterthought, by the way, we don't think we're covered at all, this declaratory issue may be taken out. So I take it on your view, the court would have had jurisdiction if they had simply approached it in that particularly formal way.
Paul R. Q. Wolfson: --I think if they were doing that before the statute had ever been implemented, or before there was ever any... in a situation where there was no expectation it would be implemented in the future, there would be a serious prudential ripeness concern there. I think it would be the same--
David H. Souter: No, but I'm talking about jurisdiction.
Paul R. Q. Wolfson: --Right. I think that if--
David H. Souter: I mean, the statutory jurisdiction.
Paul R. Q. Wolfson: --Right. I think that probably would be within statutory jurisdiction, just as--
David H. Souter: Well then, why isn't the statutory jurisdictional argument here, then, one of pure formality? The only thing that they fail to do, on your theory, is to precede their request for this declaration with a statement in the form, please preclear this.
Paul R. Q. Wolfson: --I think... well, I think that what it reflects is that they didn't preclear it... they didn't ask for preclearance because... and I can't speak for the State, obviously, why they didn't request preclearance, but that they knew that they weren't going to... they knew that it wasn't going to be done immediately, and so there was nothing to pre... there was no implementation of it to preclear.
Antonin Scalia: They didn't ask for it because it might have been granted. This case does differ from--
Paul R. Q. Wolfson: Well, right, but--
Antonin Scalia: --is the same as Allen in this respect. Just as we said in Allen there's no other way to get this, there is really no other way to be sure what you're going to get is a declaration that none of these things are within the act.
Paul R. Q. Wolfson: --Right, but I don't think--
Antonin Scalia: Because if they ask for preclearance, if I were a district judge I would say, why should I bother my brains about this, at least in this instance it's okay. I... why do I have to reach the more general question? And that will happen every time one of these specific requests for preclearance is given. The State can never be assured that that case will be decided by the court on the basis that this is simply not a voting change.
Paul R. Q. Wolfson: --That may be, but I don't think... I mean, but the section is designed principally for preclearance, for preclearance actions, and I don't think... this is really somewhat hypothetical, but if the State did bring such an action and got preclearance, I don't think the State could complain about that. I mean, they couldn't appeal a judgment preclearing--
Antonin Scalia: No.
Paul R. Q. Wolfson: --Preclearing legislation, and indeed--
Antonin Scalia: No, that's the worst part of it.
Paul R. Q. Wolfson: --No, but--
Antonin Scalia: Then they'll have to preclear every other one after that. They--
Paul R. Q. Wolfson: --It wouldn't be the worst part of it, because then they would have a defense to any action brought by a private party in a local three... in a local district court, but that--
Antonin Scalia: --How can they make a judge advert to the issue that they want to bring--
Paul R. Q. Wolfson: --I don't think they can.
Anthony M. Kennedy: --There's no way they can.
Paul R. Q. Wolfson: I don't think they can. I do want to turn--
Stephen G. Breyer: Just before... one quick second. Is it possible that... assume they don't want to plead it, I mean, the way that we want them to plead it, which is in the alternative, in which case they'd come in, but suppose they do just want to be sure they're going to get noncoverage, can they bring an ordinary declaratory judgment action in an ordinary court?
Paul R. Q. Wolfson: --I don't think so. I think that--
Stephen G. Breyer: Why not?
Paul R. Q. Wolfson: --It's... I think that section 5 is... well... I mean... well, I think that section 5 is really exclusive, and that they can't just proceed to a... I mean, I don't think they could proceed to a single district judge in a... in district court under the Declaratory Judgment Act, because I think that section... really the only way the issues--
John Paul Stevens: But section 5--
Paul R. Q. Wolfson: --of coverage can be raised are those--
John Paul Stevens: --The jurisdiction of section 5 is to grant preclearance of changes in affecting voting. If your argument is there is no change, why couldn't you bring that action to a single district judge-- --Yes, that's my--
Paul R. Q. Wolfson: --Well, I think that our view is that section 5 really is exclusive.
John Paul Stevens: --It's exclusive as to changes, but is it exclusive as to claims that there are no change... by the district itself that no change has taken place?
Paul R. Q. Wolfson: I think that it's the only... it sets forth the ways in which one can--
John Paul Stevens: But what you're saying is, if it's exclusive, then there's no forum at all--
Paul R. Q. Wolfson: --No, no, no--
John Paul Stevens: --for that kind of action.
Paul R. Q. Wolfson: --I mean, it can be raised--
John Paul Stevens: Only if they allege they're making a change.
Paul R. Q. Wolfson: --It can be raised if they bring preclearance... I mean, a similar case is probably City of Lockhart, where I believe the city argued... they both argued for preclearance, and they also said, it's not a change. In other words, it... they argued it wasn't... it's a little bit different than this because they weren't arguing it didn't affect voting, but they argued it wasn't a change from the previous... from the cases before.
John Paul Stevens: Is that a case that was initiated by the city? I don't remember.
Paul R. Q. Wolfson: Yes. It was a preclearance action in the District Court of the District of Columbia, and this Court, although this Court found it was a change, it did... it did examine it, the lower court did, and this Court did examine it on direct appeal. I think the... it is... this is a very unusual statutory provision, there's no doubt about it, but Congress wanted these questions to be brought, I think within the section 5 confine.
William H. Rehnquist: Well, are you saying, then, that under Lockhart if the... if the three judge court in a section 5 action can examine whether or not there was, in fact, a change, can it also examine whether or not in fact the change affected voting?
Paul R. Q. Wolfson: The three judge court can, yes, and the similar cases, the other Texas case that was--
William H. Rehnquist: So, then, there isn't any jurisdictional barrier here.
Paul R. Q. Wolfson: --No, but in both of those cases there was an actual preclearance action brought. It was a classic preclearance action brought in the three judge court where the State was actually... or the city in Lockhart, the State in Texas, was actually to implementing something, and they argued in the alternative, if you will, that--
William H. Rehnquist: Well, what if the State simply wants... and this question has been asked before, but I'm not sure I know your answer. What if the court simply wants a declaration that these changes they've made do not affect voting?
Paul R. Q. Wolfson: --I don't think that that... that there is jurisdiction for just that.
William H. Rehnquist: Well, under the declaratory... if section 5 doesn't afford it, and then why can't you go into a single judge district court and--
Paul R. Q. Wolfson: Well, first of all that's definitely not... I mean, that's definitely not what was done in this case, and so--
William H. Rehnquist: --No.
Paul R. Q. Wolfson: --And so the question in this case is whether the three judge court had jurisdiction, and that would bring it to this Court under the mandatory direct appeal procedure, but whether or not it could have been brought in a three judge--
William H. Rehnquist: Well, the Government never made the argument in the district court that it's making here, did it?
Paul R. Q. Wolfson: --That's correct. I mean, we--
William H. Rehnquist: So your whole argument's kind of novel.
Paul R. Q. Wolfson: --We did... we did... but the district court did itself raise doubts as to whether it properly had statutory jurisdiction, and this Court has, on other occasions, itself examined whether there was a statutory basis for jurisdiction.
Sandra Day O'Connor: But it's just so unlikely that we'd end up with a situation where a State wants a declaration that the law it passed does not affect voting, and to be told there is no forum in which to get that resolved, that is a very odd position to take.
Paul R. Q. Wolfson: I guess our position is, the State can get that resolved when it is... when it is... it can actually implement the change and require somebody to come in, in effect, and challenge that.
William H. Rehnquist: Well, that was the law before they had declaratory judgments about lots of things--
Paul R. Q. Wolfson: Right.
William H. Rehnquist: --that you just had to wait, but since the declaratory judgment action, that's no longer true.
Paul R. Q. Wolfson: But I do want to... I just want to say that, I mean, it's not the case that the State has no forum in which its argument can be tested.
Anthony M. Kennedy: Are you saying that the district is well advised to just go ahead and appoint its master and wait to be sued?
Paul R. Q. Wolfson: I think that is an option that's--
Anthony M. Kennedy: They're liable for attorney's fees if they're wrong, I take it?
Paul R. Q. Wolfson: --We might... yes. We might--
Anthony M. Kennedy: Are they liable for attorney's fees if they're wrong?
Paul R. Q. Wolfson: --I believe under... yes, they are, if a private--
Anthony M. Kennedy: Are the contracts and the decisions and the directions that the special master has given to the district before the litigation is terminated now at risk? These contracts are void, or voidable, I take it?
Paul R. Q. Wolfson: --I'm not sure.
Anthony M. Kennedy: You're advising this district to go ahead and implement a section 7 provision without getting preclearance?
Paul R. Q. Wolfson: Well, they can also... they can also ask for preclearance, and we did preclear both in the City of New York case--
Anthony M. Kennedy: Yes. You asked them about six pages of questions.
Paul R. Q. Wolfson: --And City of New York... and once we asked the questions... well, once we asked questions, then we expeditiously precleared it. They can also go to the three judge court in the District of Columbia and say, we need to do this... we need to do this right away, please resolve this issue promptly, and also please resolve it on the question of whether it's coverage, and that is open to the district court, although as I--
John Paul Stevens: You don't think the district court can act any faster? Certainly you'd come in and say, we want the answers to these questions so we can decide whether to oppose it.
Paul R. Q. Wolfson: --I--
John Paul Stevens: You're certainly not going to just lie down in this one forum and--
Paul R. Q. Wolfson: --I mean, I do think that the Attorney General's review is viewed as more expeditious, and... but I don't think that... I mean, I don't think--
John Paul Stevens: --But it is a significant burden. If you read through the papers, as Justice Kennedy pointed out, 90 days it takes to process one of... if that's a typical request--
Paul R. Q. Wolfson: --Right.
John Paul Stevens: --and if they have an emergency situation, they really have a difficult problem--
Paul R. Q. Wolfson: Well, the City of New York case was done in 22 days. I do want to point that out. I mean, it's... we do have a responsibility to be cautious in this area as to what is or is not a change affecting voting. I mean, our position is that (7) and (8) on their face do admit of the possibility that there is a change affecting voting, and it's possible to see situations where it could be implemented in a discriminatory way, and--
John Paul Stevens: --May I ask you a jurisprudential question? You having raised this jurisdictional issue, do you think it's permissible for this Court to decide the ripeness issue without first deciding whether we have jurisdiction?
Paul R. Q. Wolfson: --I do. I think that the appeal provision of section 5, which provides for a direct appeal to this Court in any appeal, is quite different than, for example, the provisions in the old... under the old three judge district court, the old three judge district court statute where law of a State was... the constitutionality was drawn into question. I think that the perp that... under that old provision, the Court had to engage in this very elaborate analysis about whether... was the three judge court properly convened, because did they... or did there have to be a three judge court, and then if the... the end result under that analysis was basically, if the three judge district court ruled on any ground other than striking down the State statute or upholding it on the merits, then the case had to go back to the three judge district court, really, and then taken back up the court of appeals. I don't think section 5 provides for such an elaborate provision. I do think that the expedition of section 5 is a factor that indicates that the Court can resolve the cases that were brought up to it directly. NAACP v. City of New York is the leading case on this point, where in that case there was a motion to intervene, I think in the... I think it was in a preclearance action in the District of Columbia District Court, and the motion to intervene was denied. That case was brought directly up to this Court, and this Court said, we can decide that, and I think this case is similar.
Sandra Day O'Connor: Mr. Wolfson, does the Attorney General have any provision for taking immediate action to allow partial implementation of a law like this pending its decision on the preclearance request? For example, where the bankruptcy proceeding has been initiated and people are in the school district trying to seize assets, and the kids can't go to school, is there any provision for the Attorney General to come in and say, well look, we're considering this, but right now we're going to let you operate with the management team pending our resolution?
Paul R. Q. Wolfson: I'm not aware that the Attorney General's guidelines have anything directly on that point. I mean, we can preclear parts of things, of course, and so if, for example, you know, there were a... if the State were planning to do two or three different things, say, in several school districts, and there was an emergency in one, and... we could preclear... we could do partial preclearance, or we can say, we think that this provision is precleared, but we need to look a little more closely at another provision under which you are exercising authority, so there is that possibility.
Anthony M. Kennedy: It seems to me rather puzzling and somewhat ironic that you are urging that the State of Texas can proceed, without any preclearance at all, to implement a section 7 plan when you have gone through the preclearance procedure in the Wilmer Hutchins district, and you say, well just go right ahead and take your chances, but you can't go into the United States District Court. It seems to me that the Justice Department would say, of course, go into the district court and we'll answer this question yes or no as to whether or not Presley and Etowah applies to a section 7 proceeding.
Paul R. Q. Wolfson: Well, I mean, I think that if there is... if they're actually implementing it, then that is by far the preferred procedure, to go into the three judge district court. That's the preferred procedure that Congress set up, and... but I don't think it's correct to say that the State has no options. I mean, obviously we prefer that a preclearance action be brought in the three judge district court, or that a submission be made to the Attorney General, but just as the three... but in all these situations, we can't resolve all of these questions in advance, before some actual implementation is proposed. I mean, the... certainly, for the reasons I've explained the three judge district court can't do that because of Article III concerns, and the Attorney General also... although the Attorney General may be able to preclear, and often does preclear enabling legislation, the Attorney General often has to wait until some actual implementation of that is proposed before review... both before reviewing that on the merits and also even making a considered determination as to whether it would be a change affecting voting.
David H. Souter: Mr. Wolfson, you're working in the direction of ripeness, and your time is--
Paul R. Q. Wolfson: Finally.
David H. Souter: --fleeting. Are you going to hit ripeness directly?
Paul R. Q. Wolfson: Yes. I mean, I think in effect the State has asked for an advisory opinion that if the Commissioner of Education at some point decides to appoint a master or a management team for a local school district, then that appointment would not be a change affecting voting, and I think it is significant that, as the State has acknowledged, that it's their policy that when a school district does have performance problems the Commissioner tries to resolve those problems through less intrusive sanctions, and we don't know that in the... now or in the imminent future the Commissioner will ever need to go so far as to reach the sanctions under sections 7 and 8. I mean, section--
Ruth Bader Ginsburg: But we know it happened once--
Paul R. Q. Wolfson: --We know it happened--
Ruth Bader Ginsburg: --so why can't they just amend the thing and say, look, it happened to us once, and we want assurance that it will never happen again?
Paul R. Q. Wolfson: --I think that Renne v. Geary is actually fairly clear that that does not... fact does not change either the analysis or the result, that that... that controversy was moot before this complaint was filed.
John Paul Stevens: May I ask you one question that kind of troubles me about the... your position? The question... it seems to me the question of whether the appointment of a management team or a master is... affects voting depends on what the management team or the master does, exercising... some of them... it seems to me some of the things they do clearly would not affect voting, others would, so I'm not sure you're going to have the ripeness the way you've described it until not only the management team's been appointed but also there's some idea of what the management team proposes to do that the school board itself would not have done.
Paul R. Q. Wolfson: I think... well, one thing is that under the Texas law when the Commissioner of Education appoints a master or a management team he is supposed to delineate the powers of the master or the management team. Now, I agree we don't necessarily know every single thing that that master or management team might do, but I think we will have a much better idea when that happens of what are the totality of the powers of... that might be exercised. Now--
John Paul Stevens: But they're all going to be the totality set forth in the statute, I think.
Paul R. Q. Wolfson: --Right, but I think the... I mean, that point we may have, we and the district court may have questions. I mean, the face of the statute, I think, lends itself to some rather evident questions. For example, the statute says, well, the master or the management team may not adopt a budget that is different from the one adopted--
John Paul Stevens: Right.
Paul R. Q. Wolfson: --by the school board, but it also says that the master or the management team may direct the trustees to take any action. Well, may the master or the management team, although he can't... he, they, or she can't adopt a budget himself. Can they tell the district court, tell the school district we don't like your budget, do a new one, and what happens... you know, is that anticipated? I mean, there are--
David H. Souter: Can you be more specific? Could you give us, for example, an example of an act that might be taken under appropriate instructions, under 7 and 8, that would not go so far as 9 and 10, but which would affect voting?
Paul R. Q. Wolfson: --I... right.
David H. Souter: Because your brother--
Paul R. Q. Wolfson: Right. I--
David H. Souter: --in effect is saying there's no such thing.
Paul R. Q. Wolfson: --Right. I think that it's possible that a commission... the Commissioner might give the master the full authority on the face of the statute, and under that situation you might have a situation in which the--
David H. Souter: Not authority that would go so far as 9 and 10.
Paul R. Q. Wolfson: --Right.
David H. Souter: Right.
Paul R. Q. Wolfson: But still, you might have... still... I mean, the... well, under 9, for example, the board of managers can just say, I'm going to do a new budget, you know. I don't care what the school district's old budget said. Now... but I think under 8, or under 7 or 8 he has... he may have in effect the same power, although it has to be... or almost the same power, although it's exercised in a different way. I think it's important to note the State--
David H. Souter: Well, how does it work? Let's... you're talking about budgets.
Paul R. Q. Wolfson: --Right.
David H. Souter: Can you give me a budget hypothesis that would--
Paul R. Q. Wolfson: The State... the school district--
David H. Souter: --That would not go so far as 9 and 10?
Paul R. Q. Wolfson: --The school district has a budget, and the master or the management team takes a look at it and says, you know, I don't like this budget. I think that you have to completely rewrite it. You have to make it 20 percent less, reallocate, you know, less on building schools and more on teacher training and school books, and if you don't... and so you just take this back and write a new budget. I think that is probably... that we would think that is a de facto replacement along with all the others powers, because even though the school district--
David H. Souter: Is it any way that it would be a de facto replacement in a way that would implicate the discriminatory concerns of the section 5?
Paul R. Q. Wolfson: --It could. I mean, I do want to say just because it's a--
David H. Souter: How?
Paul R. Q. Wolfson: --Well, I do want to say just because it's a de facto replacement doesn't mean it does. I mean, it may--
David H. Souter: That's right.
Paul R. Q. Wolfson: --It may be perfectly okay. But I do think there are situations... for example, suppose that because of demographic changes a school district for the first time becomes majority Hispanic, or majority black, or substantial minority such that the Hispanics and blacks can for the first time influence who the... influence the election of the... of their elected officials, and then all of a sudden the Commissioner decides to implement... decides we don't like that, you know... I'm not... you know, we want to have an appointee who's responsible to the Commissioner. Now, I'm not saying that has happened or will happen, but there are--
David H. Souter: So you're saying the choice of educational policy, reflected in a budget, can also be a reflection of--
Paul R. Q. Wolfson: --Of school--
David H. Souter: --Of racial composition, and if you affect that, then it is a voting--
Paul R. Q. Wolfson: --I think it--
David H. Souter: --It is a de facto replacement that would be covered by 5.
Paul R. Q. Wolfson: --I think that the--
David H. Souter: That's your argument?
Paul R. Q. Wolfson: --I think that the budget reflects... you know, among other things reflects the entire policy that the school board, the elected school board wants. That's what people elect... when people elect a school board they elect them in order to make various policy judgments, some of which are reflected in a budget, and the master may disagree. Thank you very much.
William H. Rehnquist: Thank you, Mr. Wolfson. The case is submitted.