The Burger Court Opinion Writing Database

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1 The Burger Court pinion Writing Database Dougherty County Board of Education v. White 439 U.S. 32 (1978) Paul J. Wahlbeck, George Washington University James F. Spriggs, II, Washington University in St. Louis Forrest Maltzman, George Washington University

2 t Anprtott (Putt of Hit Prittb tafto razitizttart, P. Q. 20g4g CMAJ4BER$ F THE CHIEF JUSTICE November 14, 1978 tt1 1,1 Memorandum to the Conference Re: Dougherty County Georgia Board of Ed. v. R White 0 z 0 '74 I will await Lewis Powell's dissent. Regards, bf?if5 C/3 h-4 P'V 1 i cr3 tx z C)

3 ,Itilreutt (Court of ftrt 'sitter states Azoiringtrat, QT. 2ng4g CHAMBERS F THE CHIEF JUSTICE November 20, 1978 Re: Dougherty Co. Bd. of Education v. White Dear Lewis: I join your dissen egards, 0-3 Mr. Justice Powell Copies to the Conference = 1-1 o 1-1 tc,21

4 Atprente Part cf fitt Atitett,Statto Atoltinterit, P. gr. zagv CHAMBERS F JUSTICE Wm. J. BRENNAN, JR. ctober 27, 1978 RE: No Dougherty County, etc. v. White Dear Thurgood: I agree. Sincerely, // Mr. Justice Marshall cc: The Conference

5 .01titrant QIIntrt of,stutto 'Pfit'ItrAnt, P. gr. zog4g CHAMBERS F JUSTICE PTTER STEWART November 14, 1978 = t1 Re: No , Dougherty County, Ga. Bd. of Ed. v. White Dear Thurgood, I should appreciate your adding the following at the foot of your opinion of the Court: "Mr. Justice Stewart dissents for the reasons expressed in Part.I of the dissenting opinion of Mr. Justice Powell." z 1-3 to t":1 z 0 Sincerely yours, r1 cf5 Mr. Justice Marshall Copies to the Conference H 0 C-4 0

6 uvrtutt (court of fitt Ptita fatto Atoltington, p. arpig CHAMBERS F JUSTICE BYRN R. WHITE ctober 27, 1978 = Re: No Dougherty County, Georgia Board of Education v. John E. White 0 Dear Thurgood, 0 Please join me. Sincerely yours, = FC Mr. Justice Marshall Copies to the Conference

7 qo ty 1st DRAFT to tzt SUPREME CURT F THE UNITED STATES No Dougherty County, Georgia Board of Education, et al., Appellants, v. John E. White. n Appeal fm the United States District Court for the Middle District of Georgia. 1-; e-. r= [ctober, 1978] MR. JUSTICE MARSHALL delivered the opinion of the Court. Under 5 of the Voting Rights Act of 1965,' all States and 1 79 Stat. 439, as amended, 42 U. S. C. 1973c. Section 5 pvides in part: "Whenever a State or political subdivision with respect to which the phibitions set forth in [ 4 (a.) of the Act] based upon determinations made under the first sentence of [ 4 (b) of the Act] are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or pcedure with respect to voting different fm that in force or effect on November 1, 1964,... such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or pcedure does not have the purpose and will not have the effect of denying or abridging the right. to vote on account of race or color,... and unless and until the court. enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite. standard, practice, or pcedure: Pvided. That such qualification; prerequisite, standard, practice, or pcedure may be enforced without such pceeding if the qualification, prerequisite, standard, practice, or pcedure has been submitted by the chief legal officer or other apppriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited appval within sixty days after such submission, the Attorney General has affirmatively indicated that such bjection will not be made.." C')? Cy 0

8 FP /D 2 7 CT sn 2nd DRAFT SUPREME CURT F THE UNITED STATES No Dougherty County, Georgia Board of Education, et al,, Appellants, John E. White. n Appeal f r o m the United States District Court for the Middle District of Georgia. [ctober, 1978] MR. JUSTICE MARSHALL delivered the opinion of the Court. Under 5 of the Voting Rights Act of 1965, 1 all States and 79 Stat. 439, as amended, 42 U. S. C. 1973c. Section 5 pvides in part: "Whenever a State or political subdivision with respect to which the phibitions set forth in [ 4 (a) of the Art] based upon determinations made under the first sentence of [ 4 (b) of the Act] are in. effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or pcedure with respect to voting different fm that in force or effect on November 1, 1964,... such State or subdivision may institute an action in the United States District Court for the District of.columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or pcedure does not. have the purpose and will not have the effect of denying or abridging the right to vote o account-of race or color,. and unless and until the court entelv such judgment no person shall be denied. the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or pcedure: Pvided. That such qualification, prerequisite, standard, practice, or pcedure may be enforced without such pceeding if the qualification, prerequisite, standard, practice, or pcedure has been submitted by the chief legal officer or other apppriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an. expedited appval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be inade

9 3 p CT rd DRAFT SUPREME CURT F THE UNITED STATES No Dougherty County, Georgia Board of Education, et al., Appellants, v. John E. White. n Appeal fm the United States District Court for the Middle District of Georgia. [ctober, 1978] MR. JUSTICE MARSHALL delivered the opinion of the Court. Under 5 of the Voting Rights Act of 1965, 1 all States and 1 79 Stat. 439, as amended, 42 U. S. C. 1973c. Section 5 pvides in part: "Whenever a State or political subdivision with respect to which the phibitions set forth in [ 4 (a) of the Act.] based upon determinations made under the first sentence of [ 4 (b) of the Act] are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or pcedure with respect to voting different fm that in force or effect on November 1, 1964,... such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or pcedure does not have the purpose and will not. have the effect of denying or abridging the right to vote on account of race or color,... and unless and until the court enters such judgment. no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or pcedure: Pvided. That such qualification, prerequisite, standard, practice, or pcedure may be enforced without such pceeding if the qualification, prerequisite, standard, practice, or pcedure has been submitted by the chief legal officer or other apppriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good. cause shown, to facilitate an expedited appval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made.

10 R R It-1 1 S ) 4th DRAFT SUPREME CURT. F THE UNITED STATES No Dougherty County, Georgia Board of Education, et al., Appellants, v. John E. White. n Appeal fm the United States District Court for the Middle District of Georgia. [ctober, 1978] MR. JUSTICE MARSHALL delivered the opinion of the Court. Under 5 of the Voting Rights Act of 1965,' all States and 1 79 Stat. 439, as amended, 42 U. S. C. 1973c. Section 5 pvides in part: "Whenever a State or political subdivision with respect to which the phibitions set forth in [ 4 (a) of the Act] based upon determinations made under the first sentence of [ 4 (b) of. the Act] are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or pcedure with respect to voting different fm that in force or effect on November 1, 1964,... such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or pcedure does not have the purpose and will not. have the effect of denying or abridging the right to vote on account of race or color,... and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or pcedure: Pvided, That such qualification, prerequisite, standard, practice, or pcedure may be enforced without such pceeding if the qualification, prerequisite, standard, practice, or pcedure has been submitted by the chief legal officer or other apppriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited appval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made...."

11 Jrnivrturt Qiintrt Anita taus libtaltingtatt, p. qr. 20p4 CHAMBERS F JUSTICE HARRY A. BLACKMUN ctober 30, 1978 Re: No Dougherty County Board of Education v. White Hxx Dear Thurgood: Please join me. 0 Sincerely, 11 cn ti Mr. Justice Marshall cc: The Conference cn cn cn cn

12 AwPmt (ffourt of tit* lattiter Atatto p. (4. 2ag4g CHAMBERS F JUSTICE LEWIS P. PWELL,JR. ctober 26, 1978 No Dougherty County v. White Dear Thurgood: opinion. In due time I will circulate a dissenting Sincerely, Mr. Justice Marshall Copies to the Conference LFP/lab

13 Mb: The Chief Justice Mr. Justice Brennan Mr. Justlae Stewart Mr. Justice White Mr. Justice Marshall Mr. Justice Blackmun Mr.. Justice Rehnquist Mr. Justice Stevens Pm: Mr. Justice Powell 1st DRAFT Circulated: 4 NV 197 SUPREME CURT F THE UNITEDittiniSted: No Dougherty County, Georgia Board of Education, et al., Appellants, v. John E. White. n Appeal fm the United States District Court for the Middle District of Georgia. [November, 1978] MR. JUSTICE PWELL, dissenting. Today the Court again expands the reach of the Voting Rights Act of ruling that a local board of education with no authority over any electoral system must obtain federal clearance of its personnel rule requiring employees to take leaves of absence while campaigning for political office. The Court's ruling is without support in the language or legislative history of the Act. Moreover, although prior decisions of the Court have taken liberties with this language and history, today's decision is without precedent. Standard, Practice, or Pcedure Section 5 requires federal preclearance before a "political subdivision" of a State covered by 4 of the Act may enforce a change in "any voting qualification or prerequisite to voting. or standard, practice. or pcedure with respect to voting...." This pvision marked a radical departure fm traditional notions of constitutional federalism, a departure several Members of this Court have regarded as unconstitutional. 1 Indeed, 1 Mr. Justice Black believed that the preclearance requirement of 5 "so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal powers meaningless." See South- Calina v. Katz. enbach, 383 U. S. 301, 358

14 To: The Chief Justieu Mr. Justice Brennan Mr. Justice Stewart Mr. Justice White Mr. Justice Marshall Mr. Justice Blackmun Mr. Justice Rehnquist Mr. Justice Stevens Fm: Mr. Justice Powell Circulated: 2nd DRAFT Ilffa.ted ' 1 5 NV 1978 SUPREME CURT F THE UNITED No Dougherty County, Georgia of Education, et al., Appellants, v. John E. White. Board n Appeal fm the United States District Court for the Middle District of Georgia. [November, 1978] MR. JUSTICE PWELL, with whom MR. JUSTICE REHNQUIST joins, dissenting. Today the Court again expands the reach of the Voting Rights Act of 1965, ruling that a local board of education with no authority over any electoral system must obtain federal clearance of its personnel rule requiring employees to take leaves of absence while campaigning for political office. The Court's ruling is without support in the language or legislative history of the Act. Moreover, although prior decisions of the Court have taken liberties with this language and history, today's decision is without precedent. Standard, Practice, or Pcedure Section 5 requires federal preclearance before a "political subdivision" of a State covered by 4 of the Act may enforce a change in "any voting qualification or prerequisite to voting, or standard. practice, or pcedure with respect to.voting...." This pvision marked a radical departure fm traditional notions of constitutional federalism, a departure several Members of this Court have regarded as unconstitutional.' Indeed,.1. Mr. Justice Black believed that the preclearance requirement. of 5 "so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal powersmeaningless." See South Calina v. Katzenbach, 383 U. S. 301, 358:

15 To: The Chief Justice Mr. Justice Brennan Mr. Justice Stewart Mr.,Jus t: White L Yer Just 1.l rs?lall Mr. Just Blackmun Mr. Just R:Airicuist Mr. Jus Stevens Fm: Mr. Justice Powell Circulated: 3rd DRAFT Recircul qted2 1 NV We SUPREME CURT F THE UNITED STATE No Dougherty County, Georgia Board of Education, et al., Appellants, v. John E. White. n Appeal fm the United States District Court for the Middle District of Georgia. [November, 1978] MR. JITSTICE PWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting. Today the Court again expands the reach of the Voting Rights Act of 1965, ruling that a local board of education with no authority over any electoral system must obtain federal clearance of its personnel rule requiring employees to take leaves of absence while campaigning for political office. The Court's ruling is without support in the language or legislative history of the Act. Moreover, although prior decisions of the Court have taken liberties with this language and history, today's decision is without. precedent.. Standard, Practice, or Pcedure Section 5 requires federal preclearance before a "political subdivision" of a State covered by 4 of the Act may enforce a change in "any voting qualification or prerequisite to voting, or standard, practice, or pcedure with respect to voting...." This pvision marked a radical departure fm traditional notions of constitutional federalism, a departure several Members of this Court have regarded as unconstitutional.' Indeed, 1 Mr. Justice Black believed that the preclearance requirement of 5 "so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal powers meaningless." See South Calina v, Katzenbach, 383 U. S. 301, 358

16 .trprratt aratrrt of tfteltniittt,tzitteo litagiriatgiatt, p. Q. 20A4J CHAMBERS F JUSTICE WILLIAM H. REHNQUIST November 14, 1978 = Re: No Dougherty County v. White Dear Lewis: Please join me in your dissent in this case. Sincerely, 0 z cn Mr. Justice Powell Copies to the Conference = - z )-t 1-4 cn ti

17 ztput Q=t **nth* Abdo% aoltington,p. qr. zeal CHAMBERS F JUSTICE JHN PAUL STEVENS ctober 27, 1978 Re: Dougherty County, Georgia Board of Education v. White Dear Thurgood: Please join me. Respectfully, Mr. Justice Marshall Copies to the Conference

18 Jiktprtust (gaunt of tivlinitetr Matto Ilitaxitingtan, p. (1.r. zapil CHAMBERS F JUSTICE JHN PAUL STEVENS ctober 27, 1978 Re: Dougherty County, Georgia Board of Education v. White Dear Thurgood: In my judgment your opinion is unanswerable and therefore I shall join it. I would be grateful, however, if you could make one slight change in the sentence at the bottom of page 7 in order to accommodate a concern I expressed in my dissent in Sheffield. Could you revise the sentence to read this way? "Given the central le of the Attorney General in formulating and implementing 5, this interpretation is entitled to particular deference." I will join even if you don't make the change, but it would make me a little more comfortable. Respectfully, Mr. Justice Marshall P.S. I have sent the enclosed concurrence to the Printer.

19 (Draft #1--JPS) Dougherty County, Georgia Board of Education v. White MR. JUSTICE STEVENS, concurring. Although I remain convinced that the Court's construction of the statute does not accurately ref l ect the intent of the Congress that enacted it, see United States v. Sheffield Board of Commissioners, 435 U.S. 110, (STEVENS, J., dissenting), MR. JUSTICE MARSHALL has demonstrated that the rationale of the Court's prior decisions compels the result it reaches today. Accordingly, I join his opin i on for the Court.

20 io: The Chief Justice Mr. Justice Brennan Mr. Justice Steuart Mr. Justice White &r. Justice Marshall Mr. Justice Blackmun Mr. Justice Powell Mr. JUBtiCe Rehnquist Fm: Mr. Justice Stevens CT 3n 1978 Circulated: 1st DRAFT Recirculated: SUPREME CURT F THE UNITED STATES No Dougherty County, Georgia Board of Education, et al., Appellants, v. John E. White. n Appeal fm the United States District Court for the Middle District of Georgia. [November, 1978] MR. JUSTICE STEVENS, concurring. Although I remain convinced that the Court's construction of the statute does not accurately reflect the intent of the Congress that enacted it, see United States v. Sheffield Board of Commissioners, 435 U. S. 110, (STEVENS, J., dissenting), MR. JUSTICE MARSHALL has demonstrated that the rationale of the Court's prior decisions compels the result it reaches today. Accordingly, I join his opinion for the Court.