Warren E. Burger: We will resume arguments in 1583. Mr. Bell.
Randall T. Bell: Mr. Chief justice, and may it please the court. We are astonished that anyone could come in to this court and suggest, as we understood counsel, yesterday to suggest first that South Carolina is deliberately evading the provisions of Section 5 for Voting Rights Act in this case, and second the Attorney General in 1972 did not look at the submission of our senate plan. We believe that both of these suggestions are flatly contradicted by the record in this case. It has been said, that after the objection was entered pursuant to the court order in Harper v. Levi in 1973, that South Carolina has continued to enforce its plan, rather than coming up with a new reapportionment or submitting to the District Court of the District of Columbia, an action seeking a declared court judgment that the plan is enforceable. Now, of course, from 1973 until commencement of this suit, the judgment of that District Court was in litigation. It was appealed by the United States to the Court Of Appeals. Judge Green in her District Court order specifically said that the order was without prejudice to any right of appeal on the issue, and so we fail to see how that constitutes bad faith or evasion on our part. We feel also that the record of South Carolina’s compliance with the Voting Rights Act, since its inception should dispel the notion that there is any bad faith or evasion on our part in this case. We promptly submitted this plan, we mailed it off three days after the Governor signed it in to law, which is, I think is very prompt compliance, in 1972, South Carolina has always complied with the Voting Rights Act. We are quite proud that we are the only covered jurisdiction and this court has judicially noticed in Perkins v. Matthews that we are the only covered jurisdiction that is rigorously and faithfully complied with the Section 5 pre-clearance provision since the beginning. We did so in this case, the Attorney General determined that our submission was complete, which we think was his determination to make. We think, this court clearly said that, in Georgia v. United States, and so we fail to see where the evasion is on our part. Where is our bad faith? In fact, we feel that the record indicates the opposite. Now, the record also shows that the Attorney General did look at our submission. All of the testimony in the record, all of the evidence in the record points in that direction that nothing to indicate that agency action was withheld which was repeatedly suggested yesterday. Quite obviously, agency action was not withheld. The Attorney General received the submission, he reviewed the submission, he reviewed the plan and he acted, it is because he acted, and not because he failed to act, that we have this lawsuit. The Plaintiffs disagree with that action but it simply is not plausible to claim that he did not look at the plan or did he totally withheld Agency Action, or that he did not review it at all, so that is not the case we are arguing here, it is a case in which the Attorney General did receive the submission. If there is any question about that I think it is a dispelled by looking at the memorandum he filed with District Court a year later, in which he said, we have again reviewed this submission and we find that our decision there was sound. That is the same letter in which he went on to say that the plan had a substantial racial effect. But he starts that memorandum by saying, we have reviewed all of this again, that indicates that he had reviewed it once before and he said we have reached the same conclusion, that that conclusion was sound.
Potter Stewart: That letter is an Appendix here somewhere.
Randall T. Bell: Yes, Mr. Justice Stewart. You will find that letter is on page in the Appendix starting at Page 51. I am sorry that is the objection letter. The memorandum which I am referring is reprinted in the Red Brief in the Appendix there, and you will find that begins on Page 4(a) of that Appendix and the language I am referring to is in the first paragraph of that memorandum. It says there, "we have again examined our files to determine whether the conclusion reached, and the reasons for that decision are sound, we conclude again that they were". So we think that the record, the facts in this case simply do not support most of the arguments that were being made yesterday in that regard. It seems to me that to adopt that the position which was urged before the court yesterday, is quite clearly going to create significant problems. If the court decides to review under the Administrative Procedure Act is permitted, I think yesterday’s argument gave us a good foreshadowing of what is going to happen, we are going to have a host of collateral issues being raised in lawsuits on this matter. All of these will have to be resolved in future litigation, I do not think those issues are right for adjudication in this court today. They will have to be resolved, in collateral suits in the future. Some of the issues that were raised in the questioning yesterday are very difficult issues, who can seek review. Private parties, the submitting authority, both. Can private parties seek review of objections as well as non-objections, and I think the difficulty of that question is shown by the fact that the private parties in the United States disagreed on it. Mr. Wollenberg said, private parties can not. Mr. Turner said they can if there is some fundamental error that led to the objection. That is a difficult question which would have to be resolved.
Speaker: Suppose that the Attorney General does not object, or suppose he specifically says that he is not planning to object. He says he's carefully reviewed the plan and the state statute goes in to effect. May a private party then bring an independent suit to enjoin the operation of the statute, not on constitutional grounds but on the ground that it does not comply with Section 5?
Randall T. Bell: I think the act itself does not give a clear answer to that, obviously the Act says…
Speaker: Have there been some decisions, have there been some attempts at private suits to enjoin the...
Randall T. Bell: I think the problem, and I think it is a significant problem; there are certainly reasons why private parties should be allowed in certain circumstances to litigate that issue. I think the way that has been handled so far and it seems to be something that is acceptable to Congress, but Congress has not changed the Act, it is a liberal rule of intervention, now private parties have intervened...
Byron R. White: I know but there is no place to intervene, if the Attorney General does not enter his objection.
Randall T. Bell: You are quite right, because you are speaking of the case in which he says I enter no objection.
Byron R. White: I had thought that rule -- I just assumed, I suppose the rule in the statute was that private suits were not permitted. That after the statute went into effect that private party was remitted to its constitutional remedies.
Randall T. Bell: Yes, in the case that you are speaking of, Mr. Justice White --
Byron R. White: Are there some decisions that say that once?
Randall T. Bell: Yes, I think that the Allen, the Allen decision of this court says precisely that, it says once the state has obtained successful pre-clearance the only remedy parties have is to bring the subsequent contest on the merits. There is no...
Byron R. White: On what merits?
Randall T. Bell: On the merits on the plan, that is..
Byron R. White: Well I know, you mean on the constitution.
Randall T. Bell: Yes, on the Constitution.
Byron R. White: Assume this statutory standard is more stringent than the constitutional standard, my question really asks may a private party bring a private suit to enforce the statutory standard.
Randall T. Bell: I think congress has indicated that the constitutional merits are then to be reached. That the purposes --
Byron R. White: Well, they should then be reached but is there some authority for saying that Congress did not intend a private suit such as I described?
Randall T. Bell: I think the language in the Allen case is the best indication of that.
Byron R. White: Well, isn’t that some argument for suggesting -- isn’t that an argument against allowing review?
Randall T. Bell: I think quite clearly, it is.
Byron R. White: Well I would suppose you would have made that argument.
Randall T. Bell: Well if a have not, I hope that I am making it now.
Byron R. White: I mean, if Congress did not intend to bar private parties from bringing independent suits to enjoin on the basis of the statutory standard, it would seem odd that it would allow review, at the behest of purely private parties.
Randall T. Bell: Yes, I think if we look at the scheme of Section 5 and see how it relates to the traditional constitutional suit, we begin to get some insight in to that question. Now, the reason Section 5 was enacted, and I think this is quite clear is because traditional suits were considered not to be an adequate remedy. But why weren’t they considered to be an adequate remedy, there was a very specific problem that Congress was addressing. It was a practice which they had seen occur and in some states in the South on a massive basis of undercutting successful Fifteenth Amendment litigation, private parties would have a voting qualification, stricken as unconstitutional they would win their case and the state would react by changing the qualifications, so that there had to be new litigation. Now pre-clearance and the suspension effect of Section 5 has taken care of that problem. So that the subsequent contest on the merits, the constitutional contest now is the effective.
Speaker: Well, on the other hand, if Congress has provided a statutory standard which new voting procedures must conform to. Why would you argue that congress did not intend a private party to be able to sue on the basis of the statute?
Byron R. White: Did the statute does not say so in so many words?
Randall T. Bell: I think that one of my difficulties with your question Justice White is that I do not see decision of this court that is yet resolved that question, it is clear that it is a question that has been on your minds. It seems to me that the court has not yet reached a resolution of that question. I suppose that had court...
Byron R. White: But how about -- have suits been brought in District Courts, have they been dismissed or have they been entertained?
Randall T. Bell: To my knowledge, no suit has been -- a substantive Section 5 suit has not been brought in a local District Court when the Attorney General has not objected. Another reason it's hard to cite authorities because this case is one of the first cases in which someone challenged the Attorney General’s non-objection by bringing an action other than the subsequent contest on the merits provided in Section 5, which we think is the remedy that Congress intended to be available and we think it is an adequate remedy today because there would be no undercutting of judgments which was the problem that Section 5 was addressed to in the past. I think, at the time Congress extended the Act in 1975, there was no decision of this court which would indicate that the substantive standard of Section 5 is clearly different from the Fifteenth Amendment standard. Some members of the court feel that the standard is the same. The substantive standard both under the Fifteenth Amendment and under Section 5, and so I do not think Congress was dealing with a situation of which this court has announced a clear rule that substantive Section 5 coverage was different from substantive constitutional coverage. So that it would have to deal with that issue by amending Section 5 or leaving Section 5 the way it is. It seems to me that that was the issue in the Beer case which came after the 1975 extension, and as I say, it seems to me from my reading of that case that the court had not made up its mind on the issue yet, and certainly it is a difficult question. I think our view would be that Congress has resolved that question by saying “Here is the subsequent suit, why would Congress take care to preserve that suit, if it was not because it foresaw exactly the factual situation we have here, private parties disagreeing with the non-objection by the Attorney General". It seems to me that’s why Congress was careful to preserve that subsequent contest on the merits.
Speaker: Now when you say substantive contest on the merits, you are talking about the constitution of the suit...
Randall T. Bell: The subsequent constitutional suit, yes.
Speaker: Yes, but that is not as necessarily as broader remedy. In other words the plaintiffs might lose that suit and still the Attorney General's objection be sustained in a suit brought by the state challenging it in a Three-Judge District Court here in the District Of Columbia, might it not?
Randall T. Bell: That is true, if the substantive Section 5 standard is in effect only standard, whereas the constitutional requirement is either a purpose or a purpose and effect standard, which language in the decisions in this court would indicate, then there would be a difference. It seems to me though that the question of purpose and effect is often one in which no bright line can be drawn, and that the Attorney General, if that standard is different clearly could object and if he found a clear discriminatory effect, I think if that standard is different that that would certainly be a possibility for him to object. I do not think that is the situation we had in this case, in 1972. There has been some question as to why he differed or what was he doing when he differed in the South Carolina case. What seems to me that we have to look at the situation in 1972. I think the reasons are intensely factual in this case. The Attorney General was faced with the situation in which a previous plan, similar to the plan that is now before the court had been objected to in March of that year. But the objection was not based on a reasoned decision on the merits. He said “I can not make up my mind”, therefore under my burden of proof standard in my regulations interpose objection. He said “we are unable to reach a conclusion”. That is what he said in March, to Act 932. Now when he received Act 1205, the plan we are talking about now, in June the situation had changed. For one thing, constitutional court had found that there was no discriminatory purpose behind that plan and in fact, the plaintiffs in that case had conceded that there was no discriminatory purpose behind the plan. So, he was dealing with a situation in which parties to that litigation had conceded that there was no discriminatory purpose. The court had found no discriminatory purpose.
William J. Brennan, Jr.: Yes, but actually, like out issue here is rather narrow, or you do not really get to the question of the merits of his actions. It is rather the narrow question whether his state of reason for a non-objection was that he was deferred to the action of the Three-Judge Court, wasn’t it? So, there's only the narrow question whether or not much is reviewable, that kind of mistake, if you please, whatever else it is, not for the merits of his -- why he objected or not, isn't that right?
Randall T. Bell: I quite agree Justice Brennan, but I think..
William J. Brennan, Jr.: I mean all the other things that we have been discussing with you so far get above and beyond that -- didn't they.
Randall T. Bell: I think that the reasons that he did differ have something to do with whether we consider that difference, unreasonable and I am suggesting that in addition to the fact.
William J. Brennan, Jr.: I just want to suggest that it is not whether it is reasonable or unreasonable. But it is rather whether, whether that is judicially reviewable, as a matter of law his reliance on that deferral, difference rather, is a reason for not objecting.
Randall T. Bell: We do not think that when he differed he was relying only on that court decision, that is the point I am trying to make. We do not think that is the only way.
William J. Brennan, Jr.: Where did you get that out of the record?
Randall T. Bell: Okay, it seems to me that if we look at his letter, if we look at his letter, and it is in the Appendix.
Speaker: Are you speaking of the one you referred to before?
Randall T. Bell: No, that was the memorandum he filed in the District of Columbia court. But if we look at his 1972 letter, which he said he was referring, and I am referring to Page 48 of the handbook (ph), the Appendix, and if I might invite the attention of the court to the full paragraph which is at the bottom half of that page. He first says, “we think that our function is to do what the District Court of the District of Columbia would do”. “If this case were presented to them in a declaratory judgment action”, that is the first thing he says. The second thing he says is “under this standard that is under the standard of doing what we think the District Court would do, we feel constrained to differ to the judgment”. Then he goes on and explains that a little bit more, it seems to me that he indicates other factors besides just the fact that that judgment had been entered in the constitutional case. He says also that there is a right of appeal to the Supreme Court. Parties who feel aggrieved have a full right to seek appellate review, he also notes in the previous paragraph that he is considering this under a request for expedited consideration because the elections are getting near.
William J. Brennan, Jr.: Well, of course, in fact there was no, at this state, there was no determination of the District of Columbia in a Three-Judge Court...
Randall T. Bell: No, there was not.
William J. Brennan, Jr.: So the question really is when he says “under this standard” may he do what he did, defer the determination of the Three-Judge District Court in South Carolina, merely because he thinks what they did might have been what the District of Columbia's Three-Judge Court would do. Isn’t that what the issue is?
Randall T. Bell: Yes but we think that issue is reviewable.
Speaker: That is the preliminary issue.
William J. Brennan, Jr.: Yes, but to that extent is reviewable, his reliance on that reason for non-objection?
Randall T. Bell: Right, I think that what he was saying..
William J. Brennan, Jr.: No, but isn’t that the only question we have to decide in this case?
Randall T. Bell: I think that all that you have to decide is that Section 5 means what it says when it says that if the..
William J. Brennan, Jr.: No, no, please do not put it that way.
Randall T. Bell: Okay, I am sorry.
William J. Brennan, Jr.: Isn’t that the issue for us to decide whether or not his non-objection based on that ground is judicially reviewable?
Randall T. Bell: I think yes it is, quite clearly.
Potter Stewart: At your submission that, even though this can be defended as more or less reasonable at least at the time that it was made in the light of the -- then State of the law. I thought it was your position that even he had said “we are opposing no objection because of South Carolina voted republican at the last election”. Even that would not be reviewable.
Speaker: We think that your position at...
Randall T. Bell: If that were his objection we would be quite confident in coming to the District Court of the District of Columbia ourselves if he objected on that basis.
Potter Stewart: No, I said, he didn’t object, he says, we are interposing no objection because your state voted right at the last election. What if he did that, would that be reviewable? In your submission it would not be isn’t it that correct?
Randall T. Bell: It would not fall within the kind of review being sought here. I do not think we would want to go so far as to say that what..
Potter Stewart: Even if it does go, and necessarily goes that far as I understand it, and I do not find that shocking.
Randall T. Bell: We think that Congress intended to preclude that kind of review.
Potter Stewart: Exactly, that is your submission.
Randall T. Bell: Yes, and we think that if the Attorney General ever were to do that Justice Stewart, that the remedy for that is clear. What happened in 1971, Congressional oversight, now if..
Potter Stewart: That is the reason they put the onus on the Attorney General.
Randall T. Bell: Exactly. Now before 1971 it is quite clear from all of the evidence in the Congressional hearings that the Attorney General was not reviewing many of these submissions. Mr. Turner said and it's their position, we were too busy with voting examiners and registrars down in Mississippi to pay much attention to pre-clearance and it is also clear that in many cases he never responded hundreds of cases.
Speaker: I suppose then you would day that his non-objection would not be reviewable even if he just says we are not interposing an objection because we have not had time to look at it.
Randall T. Bell: Yes.
Speaker: We are just not able to do the job that the statute contemplates. Would you say, non- review?
Randall T. Bell: Non-review in that case.
Speaker: I think you must say that because it sounds to me like that is precisely what happened -- in effect what happened here because he never, never looked at it in the light of the Section 5 standard. He simply said “some courts decided it is constitutional”. So it is just the same as saying, “I have never looked at it from the stand point of Section 5”.
Randall T. Bell: We think that proposition is not as shocking as it seems on its face because there is congressional oversight.
Speaker: That seems to me...
Randall T. Bell: Pardon?
Speaker: Well, no it isn’t that shocking, it's true.
Randall T. Bell: And it seems to me that in Georgia, in the Georgia case this court said that these things are things that are left with the Attorney General. We do not have to find that what he did do is the only thing he could do or...
Speaker: Or even the right thing.
Randall T. Bell: Or even the right thing.
Speaker: He might have been egregiously wrong but I thought it was your argument that it is simply not reviewable.
Randall T. Bell: That is our argument.
Speaker: Well I would not back away from it, if I were you.
Randall T. Bell: And it seems to me that if the Attorney General ever begins flagrantly abusing that power or doing something which was clearly, what Congress felt that it did not want, Congressional oversight would be the remedy for that case, and not—Yes.
Speaker: Copy or oversight, if you…
Randall T. Bell: Yes, of course that hypothesis is completely implausible because the act has been very successful in accomplishing its purpose. Even in all those years that the Attorney General was not reviewing every submission, Blacks were making great strides forward in the South. Mr. Pottinger(ph) and others have said in the testimony in 1975, “this is the most successful piece of civil rights legislation ever passed by Congress and so to talk about this hypothesis, I think is implausible as a matter of experience, but even in those situations, Congressional oversight is available and as you suggest it is just public outrage, that kind of behavior, if it occurred certainly..
Speaker: Mr. Bell, think hypothetically, please.
Thurgood Marshall: The Attorney General says, “I am constrained to pass this up because the federal Court has decided to question”. And he sends that letter and two days later, he sends a letter and says I was mistaken in that, and I do now object.
Randall T. Bell: Under his guidelines, if he does both of those things within the 60 day period, the objection will stand, Justice Marshall, and the state could not enforce. I think that is clear in his guidelines.
Thurgood Marshall: The trouble is you did not do it within 60 days.
Randall T. Bell: Here, 434 days later he entered an objection pursuant to court order.
Thurgood Marshall: So, he says because he did not do it within 60 days.
Randall T. Bell: Precisely and we think that is what Congress has said and what this court said in Allen. Congress knew that the Attorney General did not make a reasoned decision on the merits in 1975 and they did not change the act. Mr. Turner suggested yesterday that they or I understood him to suggest that they always give reasons, when they make a response but his guidelines say that they do not. If he fails to object or says no objection 51.20 of the guidelines say nothing about him giving reasons. If he objects, under the section dealing with notification of decision to object, it says that sub (a) that he will give reasons there and Congress knew that the interpretation of Section 5 was that he does not have to give reasons, he does not have to act. There's language of this court in the City of Richmond case, which indicates that, and the proponents placed that interpretation on it in 1975, Congress knew that’s what people thought it meant and Congress did not change the language of the section. I do think, to return to a point that I was addressing earlier that all kinds of questions will be raised if this sort of litigation is opened up, not just question of who can seek review, but the question of whether venue is in the District of Columbia or in local courts. Whether 14(b) of the Act is a limit on the general venue provisions of the APA, indeed whether 14(b) requires a Three-Judge Court in an APA determination, since Three-Judge Courts are required elsewhere. Of course, there was not a three judge court in Harper v. Levi. How soon must review be sought? There was great emphasis placed on the timeliness of the Harper V. Levi suit, in this case, but what happens if people wait a few months longer? All of these are collateral questions that I think would be an enormous waste of judicial time. Why not go to the remedies Congress has provided which get to the merits of these plans? Either the subsequent contest by parties or the declaratory judgment action by the state. If I may, I would like to address myself also to the question of special elections in 1978, and just briefly of course, we think the issue is entirely hypothetical because the District Court was correct in its decision. We would note very quickly that under the Attorney General’s guidelines were these objections ultimately to be sustained, we could go before him and ask him to withdraw it if the facts of the law have changed. We believe that they have in this case and we would want to see that and also everyone admits that we have the right to come in to the District of Columbia court and seek the declaratory judgment. We would like that option left open.
Speaker: The state, yes that is right.
Randall T. Bell: The state, yes the Senate. We note that in Mississippi and Georgia, legislators have been allowed to serve out their full terms even after objections have been entered, or plans have been struck down as constitutional and we believe that good faith of our senate entitles it to that consideration as well. As I say, we do basically consider that to be hypothetical, of course, our position is that the judgment of the District Court should be affirmed. South Carolina promptly submitted its plan in 1972 in full compliance with the Voting Rights Act. There was nothing else we could have done to comply more fully. The Attorney General did not object within 60 days. Section 5 says that when that happens the state is entitled to enforce the plan. On these facts, we ask this court to hold that South Carolina may enforce its plan. Because congress said what it meant in Section 5, and Section 5 means exactly what it says, that we can enforce. Thank you.
Warren E. Burger: Mr. Wallenberg, you have about three minutes left.
Mr. J. Roger Wollenberg: If the court please, I do not find it reassuring that Professor Bell says that great strides are being made under the Voting Rights Act, because great strides are not being made with respect to the South Carolina senate which remains all white, all of the Attorney General and the memorandum that Professor Bell keeps referring to that is in Appendix (a) in Red Brief. In that memorandum, the Attorney General found that with proper districts it would be assumed that if there were racial voting that blacks could elect four or five members of the state senate, and maybe progress elsewhere in the country, in Georgia and in Mississippi and indeed in the South Carolina House as a result of orders of this court or objections of the Attorney General, progress has been made. We are here to try to get progress in the state senate of South Carolina. Much has been said about the 1975 re-enactment by Congress of the act and it must have been accepting 60 day limit and everything for which Professor Bell has been arguing. Professor Bell overlooks the language in the house that is set forth in Footnote 42 of his brief at Page 29 where Mr. Representative Edwards, expressed great approval for the Harper and Levi decision which has just been decided when Congress was re-enacting in 1975. And we have to say I think that Congress in that re-enactment was thoroughly aware of Harper v. Levi and I want to refer the court also to the Senate Report number 94-95 in 94th Congress, first Session, Page 18, where a reference also was made to what was then to the reference to Harper v. Kleindienst, and Connor v. Waller. So Congress in 1975, I think, was well aware of the fact that if Attorney General went completely out of the statutory scheme and abdicated his function that some result would be reached. A lot of concern has been expressed.
Speaker: The statutory scheme is simply for him to interpose an objection or not to interpose an objection, that is all the statute talks about.
Mr. J. Roger Wollenberg: Yes, Your Honor, but it is settled under his own regulations and this court's decision in Georgia, that that is to be a considered decision like a court would reach, and it is not a decision --
Speaker: That his regulations were permissible, that is what the Georgia case, and I wrote the opinion.
Mr. J. Roger Wollenberg: Yes Sir, I think that the kind of determination that the Attorney General is intended to make under Section 5 is the kind of determination that the Attorney General, that would be made by the District of Columbia court if the case were presented to it. And this court in the Thermtron case and in Dunlop v. Bachowski has made very clear that where an agency goes entirely outside of its statutory function that this court will fashion a remedy without upsetting the statutory scheme. A limited and narrow remedy and we are asking in this case only the most narrow and limited remedy which was applied in Harper v. Levi which was an order to the Attorney General not to reach a particular result but in order to perform his function and to reach a decision that was independent, and that is what he did and it was a decision that was entirely negative to the statute and he indicated that it has been his view for at least a year, that the statute was an improper statute.
Warren E. Burger: Mr. Wallenberg, will you pin point a little more clearly for me. In what perspective did the Attorney General go outside of the statutory authority?
Mr. J. Roger Wollenberg: Well, Your Honor when the Attorney General..
Warren E. Burger: As Mr. Justice Stewart suggested the statute gives him certain options; he took one of them, didn’t he...
Mr. J. Roger Wollenberg: In failing to object, he took an option. But just like the District Court in the Thermtron case which remanded a removed case on a ground that was not authorized in the statute. In that same and was mandamus for that despite statutory language and history of non review of remand decisions. Just like that decision in Thermtron, the case here was that the Attorney General putting aside his own views as to validity of the statute, feeling that he was compelled, constrained, to follow a District Court judgment which was not on the Voting Rights Act which was on the Fifteenth Amendment and where the burden of proof had been on the plaintiffs. And where the District court had disclaimed, that it was passing on Section 5 recognizing that that was a function for the D.C. courts or the Attorney General. He felt constrained to follow that. I cannot think of a clearer case of well intentions and good faith, no doubt, but a clearer case of abdication of his clear function under Section 5 to make a judgment under the standards of the Voting Rights Act.
Speaker: When you called it an abdication, would you also agree, I take it you would agree, that he made an error of law.
Mr. J. Roger Wollenberg: It was an error of law, Your Honor but it was an error of law of kind and degree that goes far beyond an ordinary review on the merits where factual questions are taken into account and statutory policy. In other words anything can be called error of law but when the Attorney General says “I won’t exercise my own judgment because I can’t, and I can’t exercise my own judgment because the District Court reached a conclusion under the Fifteenth Amendment while disclaiming the Voting Rights Act”. Under those circumstances I say, like in the Thermtron case he has abdicated his function. And like Dunlop v. Bachowski, I think that this court can fashion a remedy which will not open up the chamber of horrors that have been suggested to Your Honors. Not open up general review, everyone coming in to attack the Attorney General, but after all the purpose of Section 5, was basically to place the burden on the covered states to demonstrate that their changes of electoral procedures were proper under the standards of the Voting Rights Act and if the Attorney General in passing on that didn’t apply the standards of the Voting Rights Act, but applied a standard of a District court on the constitution, it seems to me that it is legitimate to call that an abdication of function.
Warren E. Burger: Thank you gentlemen. The case is submitted.