Garcia v. Uvalde County

MEMORANDUM OPINION AND ORDER

JOHN H. WOOD, Jr., District Judge.

This is a Voting Rights Act case involving the 1973 reapportionment of Uvalde County, Texas’ Commissioners Court Pre*102cincts. Private Plaintiffs brought this action on or about October 18, 1976 seeking a declaration that the Defendant County Officials had failed to secure the approval of the Attorney General or the District Court for the District of Columbia for their 1973 reapportionment and for injunctive relief preventing the continued implementation of that reapportionment plan. A single judge of this Court denied the Plaintiffs’ request for an order enjoining the election of the Commissioners, but, following the election, the Defendant County Officials were ordered not to canvass and certify the results of the election. Thus, the two individuals who were unopposed and therefore presumably elected in the November, 1976 election for County Commissioners have not taken office and the two Commissioners sitting prior to the November election have held over in office.

The United States has intervened in this action as a Plaintiff. The two persons elected in the November, 1976 election for County Commissioners but not allowed to take office have intervened on the side of Defendants.

On April 11,1978, trial on the merits was had before this Court at which time all parties presented testimony, evidence and argument. Having now heard and considered same, the Court enters this Memorandum Opinion and Order constituting its findings of fact and conclusions of law.

Uvalde County reapportioned its Commissioners Court Precincts after November 1,1972. That reapportionment was submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Private Plaintiffs and the United States contend that we need only note that the Attorney General has entered an objection to the reapportionment and on that basis grant them the declaratory and injunctive relief they seek. Given the facts surrounding the issuance of the objection letter in this case, the issue is not as simple as Plaintiffs would have it. Coming to Court “armed” with an objection letter does not necessarily entitle Plaintiffs to the relief they seek. Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977). This Court can review the circumstances in which the objection letter was issued in order to determine whether it was validly and timely issued. Morris v. Gressette, supra; Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973). An extensive review of the facts is appropriate.

In August of 1973, the Commissioners Court of Uvalde County gave final approval of a plan to change the boundaries of the four precincts from which its members are elected.1 Prior to that change the County was seriously malapportioned. In Texas, two Commissioners are elected every two years for four years terms and in November, 1974, the two Commissioners elected in Uvalde County were elected pursuant to the 1973 reapportionment scheme.2

In September, 1975, Texas was for the first time brought within the coverage of the Voting Rights Act, 42 U.S.C. § 1973, et seq. See Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977). According to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, a local political subdivision or state that is covered by the Act may not enforce a post-November 1,1972 change affecting voting until the change is approved by the District Court in the District of Columbia or is not objected to by the Attorney General after its submission to him. It is conceded by all parties that the reapportionment here was the kind of change affecting voting that requires Section 5 approval.

Rather than bring suit in the District of Columbia, Uvalde County chose to submit its 1973 reapportionment to the Attorney General for his determination of whether the reapportionment had the purpose or effect of discriminating on the basis of race *103or language status. See 42 U.S.C. § 1973c; Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976); City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975).

On March 22, 1976, Uvalde County commenced what was to become an almost seven month submission process. On that date, the County Judge submitted the 1973 reapportionment to the Attorney General’s Civil Rights Division.3 Along with his letter explaining the reasons for, the circumstances surrounding and the results of the 1973 reapportionment, the County Judge sent newspaper clippings describing the changes in precinct boundaries, copies of letters to and from various persons interested in the reapportionment and voting statistics illustrating the effects of the changes.4

None of the parties seriously contend that this March submission (“initial submission”) did not provide at least some of the items that the regulations state each submission “shall” include. 28 C.F.R. § 51.-10(a)(1)-(5). However, the regulations also require a submission to include “other information which the Attorney General determines is required to enable him to evaluate the purpose or effect of the change.” 28 C.F.R. § 51.10(a)(6).

Some 58 days later, on May 19, 1976, a letter was sent from the Attorney General’s office to the County Judge advising him that the initial submission had been received but that more information was needed in order to evaluate the submission. The County Judge was further advised that the sixty day period allowed the Attorney General by Section 5 of the Voting Rights Act to consider a submission would not commence until the additional information was received. In this May 19, 1976 letter the Attorney General’s office requested information concerning the total population and registered voters by race for each of the Commissioners Precincts both before and after the adoption of the 1973 reapportionment. The County was further advised that if exact statistics were not available estimates should be provided. The County was also requested to supply the Attorney General’s office with a map of the County showing the boundaries of the precincts both before and after the reapportionment and was requested to indicate on the map or on a separate map the geographic areas of the County inhabited primarily by persons of Spanish heritage.5

On May 28, 1976, the County Judge responded to the Attorney General’s first request for additional information letter referred to above. In this letter, the County Judge responded to each of the requests made by the Attorney General in his additional information letter. First, the County Judge attached to the letter a chart showing the number of registered voters by race and ethnicity for each precinct before and after the reapportionment. Second, he included maps of the City and of the County of Uvalde showing the precinct boundaries and he described in his letter the areas in which the Mexican-American population tended to concentrate. However, with respect to the Attorney General’s request for exact population figures or estimates of total population, as opposed to the number of registered voters, in each precinct, the County Judge made the following statement:

“We do not have any way of telling the total population of these districts before and after this change was made.”

Such a statement on behalf of the submitting authority was not only appropriate but required by the regulations of the Attorney General. 28 C.F.R. § 51.10(b)(8).

Thus, as of June 1, 1976, the date on which the County Judge’s May 28, 1976 letter with enclosures responding to the Attorney General’s first request for additional information letter was received, Uvalde *104County had (1) made the initial submission of the 1973 reapportionment and (2) supplied the Attorney General with all of the information he had requested that was available to the County.

Uvalde County contends that the sixty day period in which the Attorney General had to decide whether or not to object to the submitted reapportionment started on the date the Attorney General’s office received the May 28, 1976 letter. Private Plaintiffs and the United States, on the other hand, argue that the sixty day period did not commence at that time because the submission was still incomplete.

On July 30, 1976 the Attorney General’s office again advised the Uvalde County Judge that more information was needed to evaluate the submission. In this second request for additional information letter the Attorney General’s office requested information that had not been theretofore requested.6 Inexplicably, the County Judge was also asked again to supply the Attorney General’s office with population figures by race for each Commissioner Precinct before and after the 1973 reapportionment. The County Judge had already stated, as he was required to do by the regulations, that this information was unavailable.

On August 12, 1976, the County Judge responded to the Attorney General’s second request for additional information letter by providing the Attorney General’s office with the available requested information. Concerning the request for population figures by race by precinct, the County'Judge once again advised the Attorney General’s office that the information was simply not available. Thereafter, on October 13, 1976, about 205 days after the submission process started, the Assistant Attorney General for the Civil Rights Division of the Department of Justice interposed an objection to Uvalde County’s 1973 reapportionment.

Private Plaintiffs and the United States, on whom the burden of proof lies, contend that this October 13 objection was timely and, therefore, they should be granted the declaratory and injunctive relief they seek. Relying on Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), they contend that the Attorney General has “carte blanche” authority to make as many requests for additional information, each time postponing the commencement of the sixty day period, as he deems appropriate. The Defendants, on the other hand, while not strenuously denying the Attorney General the right to make more than one request for additional information, argue that he cannot use the additional information request procedure to postpone more than once the commencement of the sixty day period. Based on the factual circumstances here, we agree with the Defendants.

As mentioned above, the Attorney General has promulgated regulations establishing procedures for the administration of Section 5 of the Voting Rights Act. 28 C.F.R. § 51. Although Section 5 of the Voting Rights Act makes no provision for requests for additional information postponing the start of the sixty day period, the regulations do allow this procedure. 28 C.F.R. § 51.18. There it is provided as follows:

“If the submission does not satisfy the requirements of § 51.10(a), the Attorney General shall request such further information as it necessary from the submitting authority and advise the submitting authority that the sixty day period will not commence until such information is received by the Department of Justice. The request shall be made as promptly as possible after receipt of the original inadequate submission.” 28 C.F.R. § 51.18(a).

This subsection of the regulations has been upheld as' reasonable and valid. Georgia v. United States, supra.

Nevertheless, the regulations do not allow repeated requests for additional information to continue postponing the start of the sixty day period once the originally requested information is received. That *105part of the regulation quoted above makes it clear that when “such information” as is requested is received by the Department of Justice, the sixty day period will commence. Nowhere is it provided that the Attorney General can thereafter request still more information and again postpone the start of the sixty day period. The regulations refer to “the request”. This wording is evidence that those drafting the regulations intended that there be only one such request allowing the postponement of the sixty day period.

We think this construction of the regulations is the better one for another reason. The regulations as so read will not tie the hands of the Attorney General during the submission process. He may still request additional information from the submitting authority “at any time during the sixty day period”. 28 C.F.R. § 51.18(b)(1) (emphasis added). Thus, he can obtain any extra data or clarification he wants while not unduly lengthening the submission process.

At the hearing of this cause, counsel for the United States argued that the Attorney General should have the right to continue to postpone the start of the sixty day period by requesting additional information as long as it appears that such requests might be fruitful. We do not believe that Congress, by providing in Section 5 of the Voting Rights Act that the Attorney General should make his determination within sixty days of the submission, intended to give the Attorney General such carte blanche authority. The congressional intent was assessed recently by the Supreme Court in the following manner:

“In light of the potential severity of the § 5 remedy, the statutory language, and the legislative history, we think it clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions. The congressional intent is plain: the extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission. Although there was to be no bar to subsequent constitutional challenges to the implemented legislation, there also was to be ‘no dragging out’ of the extraordinary federal remedy beyond the period specified in the statute.” Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 2420, 53 L.Ed.2d 506 (1977).

As mentioned previously, the submission process in the case now before us was “dragged” out by the Attorney General’s office over a 205 day period by the employment of the “request for additional information” procedure. As is evident here, this procedure does not result in the “expeditious” remedy intended by Congress.

Our interpretation of the regulations as not allowing serial requests for additional information to continue postponing the start of the sixty day period does not conflict with the decision of the Supreme Court in Georgia v. United States, supra. In Georgia, as previously stated, the Court upheld, under the circumstances presented there, the basic validity of the regulation allowing the Attorney General to postpone the start of the sixty day period until a complete submission was received. The Court stated that if the Attorney General is not allowed to request additional information he would often be compelled to make his statutory determination on the basis of incomplete and inadequate information. This result, the Court stated, would only add acrimony to the administration of the submission process.

In that case, however, there was only one request for additional information and that request was made within two weeks after the initial submission was received. Here, on the other hand, there were two requests for additional information and each request was made close to the sixtieth day after the receipt of prior correspondence. The request for additional information procedure is designed to avoid acrimony. If allowed to be used in the way it was used here, it would add acrimony. Once the submitting authority complies with the Attorney General’s request for additional information the sixty day period commences. The Attorney *106General may not further postpone the commencement of that period by requesting still more information or by repeating his request for information which the submitting authority has already stated to be unavailable.

Applying this principle to the case before us we find that the sixty day period commenced on the date that the Attorney General’s office received Uvalde County’s response to the first request for additional information letter, June 1, 1976. By that date, the Attorney General had been supplied the information he requested in his May 19, 1976 letter except for the population (as opposed to registered voters) information which the County Judge stated was not available. The submission was, therefore, according to the regulations, complete. Since the Attorney General failed to interpose an objection to the 1973 reapportionment within sixty days following June 1, 1976, that r.eapportionment scheme may be enforced by Uvalde County. The injunctive order heretofore in effect is hereby dissolved and all relief sought by Private Plaintiffs and by the United States is denied. The complaints are dismissed.

It is so ORDERED.

. This 1973 boundary change will be referred to as the “plan” or the “1973 reapportionment”.

. One of those Commissioners, Mr. Gilbert Torres, was originally a Party Defendant in this cause but, upon his own motion, was realigned as a Party Plaintiff.

. The submission was received in the Attorney General’s office on March 25, 1976.

. See the dates and exhibits referred to in the Stipulated Facts section of the Pre-Trial Order.

. This May 19, 1976 letter will be sometimes referred to as the first request for additional information letter.

. Because the Attorney General’s office was being inundated with submissions during this period, the Uvalde County submission was reassigned in mid course from its original analyst to one who had more experience in Texas reapportionment submissions.