source: Caselaw Access Project

author: Mr. Justice Brennan Me. Justice Blackmun, Mr. Justice Harlan, Mr. Justice Black,

license: Public Domain

text:
    PERKINS et al. v. MATTHEWS, MAYOR OF THE CITY OF CANTON, et al.
    No. 46.
    Argued October 20, 1970
    Decided January 14, 1971

      BrenNAN, J., delivered the opinion of the Court in which Douglas, Stewart, White and Marshall, JJ., joined. Black-MUN, J., filed an opinion concurring in the judgment, in which Burger, C. J., joined, post, p. 397. Harlan, J., filed a concurring and dissenting opinion, post, p. 397. Black, J., "filed a dissenting opinion, post, p. 401.

      Armand Derfner argued the cause and filed a brief for appellants.

      Robert L. Goza argued the cause for appellees. With him. on the brief were A. F. Summer, Attorney General of Mississippi, and William A. Attain, Assistant Attorney General.
   Mr. Justice Brennan

delivered the opinion of the Court.

. Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. V), provides that whenever a State or political subdivision covered by the Act shall enact or seek to administer “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to. voting different from that in force or effect on November 1, 1964 ... no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure” if the State or subdivision has not first obtained a declaratory judgment in the United States District Court for the District of Columbia that such qualification, prerequisite, standard, , practice, or procedure “does not have the purpose and will not have the effect. of denying or abridging the right to vote on account of race or color,” or unless the chief legal officer or other, appropriate official of such State or subdivision has submitted the qualification, prerequisite, standard, practice, or procedure to the Attorney General of the United States “and the Attorney General has not interposed an objection within sixty days after such submission.” The question in this case is. whether the city of Canton, Mississippi, was precluded by § 5 from enforcing at the 1969 elections for mayor and aldermen certain changes with respect to voting not first submitted to the Attorney General or to the District Court for the District of Columbia.

Appellants, voters and candidates for mayor or aider-man, sought to enjoin the 1969 elections in this action brought in the United States District Court for the Southern District of Mississippi. They alleged that the requirement^ at the 1969 elections differed from those in effect on November 1, 1964, and at the last mayoral and aldermanic elections in 1965 because of (1) changes in locations of the polling places, (2) changes in the municipal boundaries through annexations of adjacent areas which enlarged the number of eligible voters, and (3) a change from ward to at-large election of aider-men. The city of Canton, they alleged, sought to enforce these changes without first submitting them to the Attorney General or obtaining a declaratory judgment under § 5. Pending the convening of the court of three judges required by § 5, a single judge temporarily restrained the elections, which were originally scheduled for the spring of 1969. The three-judge court, however, after hearing, dissolved the temporary injunction and dismissed the complaint. 301 F. Supp. 565 (1969). The elections were then held in October 1969 with the challenged changes in effect. We noted probable jurisdiction. 397 U. S. 903 (1970). We reverse.

I

The three-judge court misconceived the permissible scope of its inquiry into appellants’ allegations. Our decision in Allen v. State Board of Elections, 393 U. S. 544 (1969), handed down two months before this action was instituted, settled that question. The inquiry should have been limited to the determination whether “a state requirement is covered by § 5, but has not been subjected to the required federal - scrutiny.” Id., at 561. Allen held explicitly “[t]he only issue is whether a particular state enactment is subject to the provisions of the Voting Rights Act, and therefore must be submitted for approval before enforcement.” Id., at 558-559. For emphasis, we added:

“It is important to distinguish the instant cases from those brought by a State seeking a declaratory judgment that its new voting laws do not have a discriminatory purpose or effect. ... In the latter type .of cases the substantive questions necessary for approval (i, e., discriminatory purpose or effect) are litigated, while in the cases here decided the only question is whether the. new legislation must be submitted for approval.” Id., at 556-556, n. 19 (emphasis supplied). .

The single judge who first acted in this case before the three-judge court was convened recognized that Allen so limited the inquiry.. In his unreported oral opinion granting temporary relief, he correctly stated:

“The only questions to 'be decided by . . . the three judge court to be designated, [are] whether or not the State of Mississippi or any of its political subdivisions have acted in such a way as to cause or constitute a voting, qualification or prerequisite to voting or standard, practice or procedure with respect to voting within the meaning of Section 5 of the Voting Rights Act of 1965, which changed the situation that existed as of November 1, 1964, and whether or not prior to doing so the City had filed a request for declaratory judgment with the United States District Court for the District of Columbia or asked for approval of the Attorney General of the United States . . . .”

He correctly observed further that, although there was no proof that the challenged annexations which changed the city’s boundaries were made for the purpose of denying anyone any voting right or any right guaranteed by the Fourteenth or Fifteenth Amendments, “the case of Allen versus State Board of Elections held that it is not the function or prerogative of this Court, even if it were now sitting as a three judge court, to determine the motive of the City in extending its boundary.” For Allen had explicitly held that, as between the United States' District Court for the District of Columbia and other district courts “Congress intended to treat ‘coverage’ questions differently from ‘substantive discrimination’ questions,” 393 U. S., at 559, and therefore: “we ¿o not consider whether this change has a discriminatory purpose or effect.”- 393 U. S., at 570. This is not to say that a district court limited to deciding a “coverage” question should close its eyes to the congressional purpose in enacting § 5 — to prevent the institution of changes which might have the purpose or effect of denying or abridging the right to vote on account of race or color, for Congress meant to reach “the subtle, as well as the obvious, state regulations . . .” which may have that effect. 393 U. S., at 565. What is foreclosed to such district court is what Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General — the determination whether a covered change does or does not have the purpose or effect “of denying or abridging the right to vote on account of race or color.”

The single judge made the limited examination of 'the claims concerning boundary extensions and selection of polling places permitted by Allen and, on the basis of preliminary findings that both were required to be submitted under § 5, granted the temporary injunction. But the three-judge court (which included the single judge) did not adhere to Allen’s holding. As we read the opinion of the three-judge court, the challenged changes were examined on the merits to determine whether they had “a discriminatory purpose or effect.” This emerges with particular clarity in the court’s con-. sideration of the annexations. Canton's failure to obtain prior approval of the annexations was held not to violate the Act on the express ground that “the black voters still had a majority of not less than 600 after the expansions were effected.” 301 F. Supp., at 567. Similarly, in considering the change from ward to at-large election of aldermen, as provided by a 1962 Mississippi statute, Miss. Code Ann. § 3374-36 (Supp. 1968), the court remarked, “Since a majority of the voters in Canton are black it is equally true that under the 1962 Act the black voters have the power, if they wish to be influenced by race alone to elect an all black governing body.” Idv at 568.

It is true that the three-judge court disclaimed reliance on lack of discriminatory effect as the basis for its holding that the change from ward to at-large election of aldermen was not covered by § 5; the court stated that its decision rested on the fact that the 1962 law antedated the Voting Rights Act of 1965 and should be complied with “regardless of whether [the city] complied in 1965.” Ibid. It is further true that in finding “no merit” in the challenge to the relocation of the polling places, the court based the holding on proofs that “[t]he changes were made necessary because one place did not have .space for voting machines, two others had to be moved because they had been situated on private property (bank lobbies) and permission to use the space had been withdrawn, and another was moved out of the courthouse to a school building because facilities were more ample and the move eliminated any interference with sessions of the various courts sitting at the courthouse.” Ibid. Nevertheless, these Considerations, so far as relevant, are relevant only to the questions reserved by § 5 for consideration by the Attorney General of the United States or the District Court for the District of Columbia.

However, in the interest of judicial economy, we shall not remand to the District Court for the making of a properly limited inquiry. The record is adequate to enable us to decide whether the challenged changes should have been submitted for approval, and we shall, therefore, decide that question.

II

We held in Allen that Congress intended that the Act be given “the broadest possible scope” to reach “any state enactment which altered the election law of a covered State in even a minor way.” 393 U. S., at 566, 567. “It is significant that Congress chose not to include even . . . minor exceptions [e. g., changing from paper ballots to voting machines] in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny.” Id., at 568. Tested by that standard, each of the three changes challenged in this case falls within § 5, if not as a “voting qualification or prerequisite to voting,” at all events as a “standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964.”

Even without going beyond the plain words of the statute, we think it clear that the location of polling places constitutes a “standard, practice, or procedure with respect to voting.” The abstract right to vote means little unless the right becomes a reality at the polling place on election day. The accessibility, prominence, facilities, and prior notice of the polling place’s location all have an effect on a person’s ability to exercise his franchise. Given § 5’s explicit concern with both the purpose and the effect of a voting “standard, practice, or procedure,” the location of polling places comes within the section’s coverage. Moreover, the legislative history provides ample support for the conclusion that Congress intended § 5 to cover a change in polling places. Before the Senate Judiciary Committee, the Attorney General explicitly testified that a change in “the place of registration” and a change “from a paper ballot to a machine” were changes .of the kind that § 5 was designed to reach. Plainly the relocation of the polling places is precisely the same kind of change. Moreover, there inheres in the determination of the location of polling places an obvious potential for “denying or abridging the right to vote on account of race or color.” 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. V). Locations at distances remote from black communities or at places calculated to intimidate blacks from entering, or failure to publicize changes adequately might well have that effect. Consequently, we think it clear that § 5 requires prior submission of any changes in the location of polling places.

Changing boundary lines by annexations which enlarge the city’s number of eligible voters also constitutes the change of a “standard, practice, or procedure with respect to voting.” Clearly, revision of boundary lines has.an effect on voting in two ways: (1) by including certain voters within the city and leaving others outside, it determines who may vote in the municipal election and who may not; (2) it dilutes the weight of the votes of the voters to whom the franchise was limited before the annexation, and “the right of suffrage can be denied by . a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U. S. 533, 555 (1964). Moreover, §5 was designed to cover changes having a potential for racial discrimination in voting, and such potential inheres in a change in the composition of the electorate affected by an annexation. Gomillion v. Lightfoot, 364 U. S. 339 (1960), provides a clearcut illustration of the potential of boundary changes for “denying or abridging the right to vote on account of race or color.” In addition, based on the findings of an 18-month study of the operation of the Voting Rights Act by the United States Civil Rights Commission, the Commission’s director reported to Congress that gerrymandering and boundary changes had become prime weapons for discriminating against Negro voters:

“The history of white domination in the South has ■ been one of adaptiveness, and the passage of the Voting Rights Acts and the increased black registration that followed has resulted in new methods to maintain white control of the political process.
“For example, State legislatures and political party committees in Alabama and Mississippi have adopted laws or rules since the passage of the act which have had the purpose or effect of diluting the votes of newly enfranchised Negro voters. These measures. have taken the form, of switching to at-large elections where Negro voting strength is concentrated in particular election districts, facilitating the consolidation of predominantly Negro and predominantly white counties, and redrawing the lines of districts to divide concentrations of Negro voting strength.” , Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, p. 17 (1969) (remarks of Mr. Glickstein) .

In Fairley v. Patterson, 393 U. S. 544 (1969), a companion case to Allen, this Court held that § 5 applied to a change from district to at-large election of county supervisors on the ground that

“[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot: See Reynolds v. Sims, 377 U. S. 533, 555 (1964).” 393 U. S., at 569.

Mr. Justice Harlan’s separate opinion in that case accurately r.ecognized that the Court’s holding rested on its conclusion that “Congress intended to adopt the concept of. voting articulated in Reynolds v. Sims, 377 U. S. 533 (1964), and protect Negroes against a dilution of their voting power.” Fairley v. Patterson, supra, at 588. In terms of dilution of voting power, there is no difference between a change from district to at-large election and an annexation that changes both the boundaries and ward lines of a city to include more voters: We follow Fairley and hold that § 5 applies to the annexations in this case.

Our conclusion that both the location of the polling places and municipal boundary changes come within § 5 draws further support from the interpretation followed by the Attorney General in his administration of the statute. “[T]his Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tollman, 380 U. S. 1, 16 (1965). The Attorney General’s interpretation was recently reported by officials of the Department of Justice in testimony related to the extension of the 1965 Act. They testified that the Department regarded relocating polling places and annexing territory as falling within the Act. Their testimony also indicated that this interpretation was accepted by at least some affected States and political subdivisions, which had submitted such changes for the Attorney General’s approval Hearings on Amendments to the Voting Rights Act of 1965 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 248 (1969),' id., 2d Sess., 506 (1970).

In support of this testimony, the Justice Department submitted a formal table showing the 313 changes in laws with respect to voting which had been submitted to the Attorney General and acted upon by him between 1965 and 1969. The Department divided its responses to these submissions into three categories: (1) changes that the Department did not consider within the scope of § 5; (2) changes that the Department considered within the scope of § 5, but to which the Department did not object; and (3) changes within the scope of § 5 to which the Department objected as discriminatory. Every change in boundary or election district lines as well as every change in polling places shown in that table was considered by the Department to be within the scope of § 5. Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, pp. 308-313 (1969).

The change from ward to at-large elections of all aider-men was of course a change within the coverage of the Act. Fairley v. Patterson, supra, is dispositive of that question. However, the question arises in this case in a peculiar context. The change to at-large elections was mandated by a Mississippi statute enacted in 1962. But Canton ignored the mandate in the conduct of the 1965 municipal elections and, as in 1961, elected aldermen by wards. Canton now argues that it had no choice but to comply with the 1962 statute in the 1969 elections.

We have concluded, nevertheless, that the change to at-large elections required federal scrutiny under § 5. That section in express terms reaches any standard, practice, or procedure “different from that in force or effect on November 1, 1964.” In our view, § 5’s reference to the procedure “in force or effect on November 1, 1964,” must be taken to mean the procedure that would have been followed if the election had been held on that date. That judgment is necessarily a matter of inference in this case since Canton did not hold a munipical election on November 1, 1964. But in drawing that inference, there is little reason to blind ourselves to relevant evidence in the record by restricting our gaze to events that occurred before that date. Ordinarily we presume that officials will act in accordance with law. See First National Bank of Albuquerque v. Albright, 208 U. S. 548, 553 (1908). If the only available facts showed that Canton conducted its 1961 election by wards but that the Mississippi Legislature had subsequently enacted a statute in- 1962 requiring future municipal elections to be held at large, Canton officials would be entitled to the weight of that presumption.

With the benefit of hindsight, however, we know that Canton elected its aldermen by wards in its June 1965 municipal election. The record reflects no relevant change between November 1964 and June 1965 to suggest that á different procedure would have been in effect if the elections had been held seven months easier Consequently, we conclude that the procedure in fact “in force or effect” in Canton on November 1, 1964, was to elect aldermen by wards. That sufficed to bring the 1969 change within § 5. As was the case in Allen, “It is clear, however, that the new procedure with respect to voting is different from the procedure in effect when . . . [Canton] became subject to the Act . . . .” 393 U. S., ‘at 570. The bearing of the 1962 statute upon the change was-for the Attorney General or the District Court for the District of Columbia to decide.

Ill

The appellants have urged that, in addition to reversing the District Court judgment, the Court should set aside the elections held in October 1969, and order new elections held forthwith in which the changes challenged in this case may not be enforced. In Allen we declined a like invitation and gave that decision only prospective effect, primarily because the scope of § 5 coverage was then an issue of first impression and “subject to rational disagreement.” 393 U. S., at 572. That reasoning is inapplicable in this case since Allen was decided two months before the originally scheduled dates of the Canton elections.

In arguing for new elections, appellants emphasize the desire of Congress to ensure that States and subdivisions covered by the Act not institute new laws with respect to voting.that might have a racially discriminatory purpose or effect. On the basis of the legislative history, there is little question that Congress sought to achieve this goal by relying upon the voluntary submission by affected States and subdivisions of all changes in such laws before enforcing them. Failure of the affected governments to comply with the statutory requirement would nullify the entire scheme since the Department of Justice does not have the resources to police effectively all the States and subdivisions covered by the Act, see Allen, 393 U. S., at 55b, and since private suits seem unlikely to sufficiently supplement federal supervision. * Moreover, based upon ample proof of repeated evasion of court decrees and of extended litigation designed- to delay the implementation of federal constitutional rights, Congress expressly indicated its intention that the States and subdivisions, rather than citizens seeking to exercise their rights, bear the burden of delays in litigation.

At the same time, we recognize that, in determining the appropriate remedy, other factors may be relevant, such as the nature of the changes complained of, and whether it was reasonably clear at the time of the election that the changes were covered by § 5. In certain circumstances, for example, it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming. Since the District Court is moré familiar with the nuances of the local situation than are we, and has heard the evidence in this case, we think the question of the appropriate remedy is for that •court to determine, in the first instance, after hearing the views of both parties.

The judgment of the District Court is reversed, and the case is remanded to that court with instructions to issue injunctions restraining the further enforcement of the changes until such time as the appellees adequately demonstrate compliance with § 5, and for further proceedings consistent with this opinion.

It is so ordered.

Me. Justice Blackmun,

with whom The Chief Justice joins,

concurring in the judgment.

Given the decision in Allen v. State Board of Elections, 393 U. S. 544 (1969), a case not cited by the District Court, I join in the judgment of reversal and in the *order of remand.

Mr. Justice Harlan,

concurring in part ánd dissenting in part.

Our role in this case, as the. Court concotly recognizes, is limited to determination whether § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c (1964 ed., Supp. V), required the city of Canton to obtain federal approval of the way it proposed to run its 1969 elections. For this reason, I am unable to join the dissenting opinion of Mr. Justice Black, post, p. 401, although, like him, I see little likelihood that the changes here involved had a discriminatory purpose or effect.

I agree with the Court, and for substantially the reasons it gives, that the city should have submitted the relocation of polling places for federal approval. But I cannot agree that it was obliged to follow that course with respect to the other two matters here at issue.

I

Whether or not Congress could constitutionally require a State to submit all changes in its laws for federal approval, cf. South Carolina v. Katzenbach, 383 U. S. 301, 358-362 (1966) (separate opinion of Black, J.), the Voting Rights Act does not purport to do so. Section 5 requires submission of changes “with respect to voting” only. The Court seems to interpret this restriction as including any change in state law which has an effect on voting, if changes of that type have “á potential for racial discrimination in voting.” Ante, p. 389. The limitation implied by the latter clause will prove meaningless as a practical matter. Given a change with an effect on voting, a set of circumstances may be conceived with respect to almost any situation in which the chánge will bear more heavily on one race than on another. In effect, therefore,, the Court requires submission of any change which has an effect on voting. I think it plain that the statutory phrase — “with respect to voting” — was intended to have more limited compass.

The legislative history of the Voting Rights Act was examined in the majority opinion and a separate opinion in Allen v. State Board of Elections, 393 U. S. 544, 564-571, 588-591 (1969). No useful purpose would be served by •retraversing ground covered there. The Court concluded from its review of the history that § 5 was “intended to reach any state enactment which altered the election law of a covered State in even a minor way.” Id., at 566. The Court’s opinions in both Allen and this case are devoid of evidence of a legislative intent to go beyond the State’s election law and to reach .matters such as annexations, which affect voting only incidentally and peripherally. Fairley v. Patterson, decided with Allen, and the remarks of the Solicitor General in his amicus brief in that case are plainly distinguishable on this basis. At least in the absence of a contrary administrative interpretation, I would not go beyond Allen to hold that annexations are within the scope of § 5. The Court’s assertion that the Attorney General does in fact interpret the Act differently seems to me to give too much weight to the passing remark of an Assistant Attorney General. Cf. Allen v. State Board of Elections, 393 U. S., at 568-569.

II

Fairley v. Patterson held that a change from election by districts to election at large was within the scope of § 5. The question for determination here is which of the two procedures was “in force or effect on November 1, 1964.” The Court interprets the quoted phrase to mean the procedure which probably would have been followed if an election had been held on the crucial date, regardless of the provisions of controlling' state law. -While this interpretation is not wholly unreasonable, I find it unlikely that it is the one Congress would have preferred if it had thought about the problem. Resolution of the hypothetical factual question required by the Court’s test would be quite inconvenient, if not unmanageable, for the Attorney General or the District Court for thé District of Columbia, far from the scene. Moreover, under the Court’s test, results may turn on the seeming fortuity that in the first election after November 1, 1964, local officials forgot about a controlling statute of statewide application and no private eitizen brought suit to have the election set aside. Barring state attempts to resurrect long-ignored statutes, I would interpret “procedure ... in force or 'effect on November 1, 1964,” to mean the procedure required by state law. Under this interpretation I would hold that, the change from election by wards to election at large occurred on the effective date of the 1962 state statute, and therefore that it did not require approval under § 5.

Ill

I must confess that I am somewhat mystified by the Court’s discussion of the appropriate remedy in this case. For the reasons set out in my partial dissent in Allen, 393 U. S., at 593-594, I would direct the holding of new elections if, and only if, the city fails to obtain approval from the appropriate federal officials within a reasonable time. If such approval is forthcoming, I see no justification for requiring a rerun of the 1969 elections. See the opinion of Mr. Justice Black, post, this page. If the approval is not forthcoming, the fact of violation of the federal statute, as interpreted by this Court, and the possibility that the changes had a discriminatory purpose or effect seem to me to require new elections in the absence of exceptional circumstances which. I cannot now foresee. In any event, the District Court is entitled to more guidance on this score than the Court provides.

Mr. Justice Black,

dissenting.

In South Carolina v. Katzenhach, 383 U. S. 301 (1966), this Court upheld the Voting Rights Act of 1965 as a legitimate exercise of congressional power to enforce the provisions of~ the Fifteenth Amendment. I agreed with the majority that Congress had broad power under § 2 of the Fifteenth Amendment to enforce the ban on racial discrimination in voting. However, I dissented vigorously from the majority’s conclusion that every part of § 5 of the Voting Rights Act was constitutional. The fears which precipitated my dissent in Katzenhach have been fully realized in this case. The majority, relying on Katzenhach, now actually holds that- the City of Canton, Mississippi, a little town of 10,000 persons, cannot change four polling places for its election of aider-men-’without first obtaining federal approval.

Section 5 of the Voting Rights Act provides that no political subdivision subject to the Act may adopt any voting law or election practice different from that in effect on November 1, 1964, without first going all the way to Washington to submit the proposed change to the United- States Attorney General or to obtain a favorable declaratory judgment from the United States District Court for the District of Columbia. I have stated my belief, in dissents in Katzenbach and Allen v. State Board of Elections, 393 U. S. 544 (1969), that this section of the Voting Rights Act of 1965 violates the United States Constitution because it deprives a few States and their political subdivisions of the power to make their own laws and govern themselves without advance federal approval. Under our Constitution as the Founding Fathers drafted it and as the people have adopted and amended it', I believe the power of the States to initiate and enforce their own laws cannot be so easily taken away.

This case poignantly demonstrates the extent to which the Federal Government has usurped the function of local government from the local people to place it in the hands of the United States District Court for the District of Columbia and the United States Attorney General, both being over a thousand miles away from Canton, Mississippi. The last election for aldermen in the City of Canton before the one here in issue was held in 1965. If the procedures used in the 1965 election had been used in the 1969 election, four of the five aldermen would have been elected from wards. In two of these wards white voters were in a majority and in the other two black voters were in a majority. One alderman would have been elected at large. The city adopted three changes for the 1969 elections. Detailed consideration of these changes shows that they pertained solely to local concerns in which the National Government has no proper interest and did not involve racial discrimination.

Polling Places. — The city altered four of the local polling places. Two were moved because the old polling places had been located on private property and the owners would no longer consent to the use of their property for voting. I find it incredible to believe that Congress intended that the people of Canton would have to travel to Washington to get the Attorney General’s consent to rent new polling places. Another polling place was moved because the old one did. not have sufficient space to accommodate voting machines. Finally, the fourth place was moved from a courthouse to a public school to eliminate interference with courtroom proceedings. It is difficult for me to imagine a matter more peculiarly and exclusively fit for local determination than the location of polling places for the election of town aldermen. Nor is there the slightest indication that any of these changes were motivated by or resulted in racial discrimination. The United States District Court unanimously agreed on undisputed evidence that the appellants’ attack on the changes in polling places had “no merit.” Yet, the majority of this Court has now decided that the City of Canton cannot move its polling, places without first submitting the proposed change to the politically appointed Attorney General or a District Court over a thousand miles away. Presumably, the majority is ready to hold, if necessary, that the City of Canton could not change from ballots to voting machines without obtaining similar federal approval. I dissent from any such utter degradation of the power of the States to govern their own affairs.

Boundary Extensions. — The majority also finds that Canton violated the Act by making three separate extensions of the City’s boundaries between 1965 and 1969. The 1965 extension of the city limits added 46 Negro voters to the voter registration rolls. That annexation added no white voters. The 1966 annexation added 28 black voters and 187 white voters. The 1968 annexation added eight black voters and 144 white voters. In sum, the three extensions added 82 black voters and 331 white voters. These figures must be viewed in relation to the voting population of the city on January 12, 1969, when there were 2,052 white voters and 2,794 Negro voters. It is apparent that even if these 1969 figures included no voters from the annexed areas, the additions would not alter the racial balance of voters in Canton. Moreover, it is undisputed that at the time of the election in question an absolute majority of the voters in Canton was black. Finally, the District Court found that the annexations were not part of “a stratagem deliberately designed to overturn a black majority at the municipal polls.”

In my view, the Constitution prohibits the Federal Government from requiring federal, approval of state laws before they can become effective.,-Proposals for such congressional veto power over state laws were made at the Constitutional Convention and overwhelmingly rejected. The Fourteenth Amendment did not alter the basic structure of our federal system of government. The FoUrteénth Amendment did bar discrimination on account of race and did give the Federal Government power to enforce the ban on racial discrimination. In this case the Congress has attempted to enforce the ban .on racial discrimination by requiring the States to submit their laws or practices to federal approval even before they are initiated. In my view that requirement attempts to accomplish the constitutional end of banning ráeial discrimination by a means — requiring submission of proposed state laws to the Attorney General — that violates the letter and the spirit of the Constitution. But here the Court goes even further: it permits the use of an unconstitutional means in a case where the parties have not shown racial discrimination.

At-large Elections. — In 1962, before Congress enacted the Voting Rights Act of 1965, Mississippi passed a state statute requiring cities to conduct all elections for aider-men by having all candidates run at large. For some reason not revealed in the record, the City of Canton failed to comply with that law in the 1965 elections for aldermen. The majority now holds that because Canton violated Mississippi law in the 1965 elections, the city must violate the same law again in future elections unless the officials of Canton secure federal permission to abide by the admittedly valid law of their State.

In my view Congress did not intend and the Constitution does not permit such a perversion of our federal system of government. Nor can the majority support its unprecedented decision on the grounds of racial discrimination. Jt is beyond my comprehension how the change from wards to an at-large election can discriminate against Negroes on account of their race in a city that has an absolute majority of Negro voters.

One vice of § 5 is that it attempts to shortcut the Federal Government’s job in policing racial discrimination in voting by radically curtailing the power of certain States to conduct their own elections while leaving other States wholly free of any such restraint. Moreover, § 5 is unnecessary to the enforcement of the Voting Rights Act and can only serve to cause irritation and pernicious divisiveness in those States to which it applies. When Mississippi or any other State abridges the rights of citizens on account of race, the proper course for the United States is to institute suit in a federal court to have the discriminatory practice halted. Of course, in such proceedings, the state statute or practice is presumed valid, .and it is up to the Attorney General to prove that the challenged act or practice is discriminatory. Only after discrimination has been established does the Federal Government have the power under the Fourteenth Amendment and the Supremacy Clause to interfere with the State’s conduct of its own affairs.

This Act attempts to reverse the proper order of things. Now the Congress presumes — a presumption which the Court upholds — that state statutes regulating voting are discriminatory and enjoins their enforcement until the State can convince distant federal judges or politically appointed officials that the statute is not discriminatory. This permits the Federal Government to suspend the- effectiveness or enforcement of a state act before discrimination is proved. But I think the Federal Government is without power to suspend a state statute before discrimination is proved. The inevitable effect of such a reversal of roles is what has happened in this case — a nondiscriminatory state practice or statute is voided wholly without constitutional authority.

Except as applied to a few Southern States in a renewed spirit of Reconstruction, the people of this country would never stand for such a perversion of the separation of authority between state and federal governments. Never would New York or California be required to come begging to the City of Washington before it could enforce the valid enactments of ita own legislature. Never would this law have emerged from congressional committee had it applied to the entire United States. Our people are more jealous of their own local governments than to permit such a bold seizure of their authority.

Finally, I dissent - from the remedy adopted by the Court. The majority adds insult to injury by remanding this case to the District Court with instructions to determine whether Canton should be required to hold a new election. This Court has always heretofore been rightly hesitant in interfering with elections even for the grossest abuses. The majority now departs from our many precedents for restraint in election cases and suggests to the District Court that it may be appropriate to invalidate the 1969 election and require the village to undergo the great expense and tremendous disruption of a new election. Such a remand of this case is inappropriate for at least two reasons. First, the majority’s decision is not predicated upon any actual discrimination against voters by the city of Canton, but merely upon a failure to seek federal approval for de minimis changes in its election machinery. The majority does not pretend that any actual discrimination has been proved in this case. Citations to the finding of the United States Civil Rights Commission about past instances of racial discrimination and to statements made by Congressmen who supported the 1965 Voting Rights Act do not prove discrimination in this case. - In the absence of affirmative proof of racial discrimination, I believe it would be an abuse of any remedial discretion that may be vested in the federal judiciary to compel Canton to hold a new election. Second, I believe that in remanding this case, my Brethren are neglecting their constitutional duty to decide an issue necessary to the full disposition of this case. This case has been in litigation since May 1969 and the election has already been postponed once. By the time the majority’s mandate is acted upon by the District Court and we have disposed of the jurisdictional statement which will inevitably follow, Canton’s 1973 elections will be just around the corner. In this posture, to require a new election would not be a remedy for a constitutional or statutory wrong b.ut a harsh and oppressive punishment wholly unwarranted by the facts of this case. Moreover, an order directing a new election would be a “shotgun” sanction, damaging all of the candidates and all of the people in Canton. Useless campaign expenses would have to be borne by both white and black candidates. Arid the town, through property or sales taxes imposed on all citizens, black or white, rich or poor, would have to collect tax money to pay the expenses of a new election. I need not remind the District Judges below that elections are expensive and that all southern towns are not rich. I am convinced that if the majority were to confront the issue of an appropriate remedy now, the Court would not void the election or compel the city to hold a new election. To the contrary, the 1969 election would be upheld because the alleged violations of the Act are so very minor and so clearly technical. We should not forget that while it is easy for judges to order new elections, it will be neither easy nor inexpensive for the little city of Canton to comply with such an order.

For the reasons set out above and in my dissents in South Carolina v. Katzenbach, supra, and Allen v. State Board of Elections, supra, I would affirm the judgment of the United States- District Court.

       The full text of §5, 42 U. S. C. § 1973c (1964 ed.. Supp. V), provides:
      “Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b (a) of this title are in effect shall enact, or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from 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 procedure 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 procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief-legal officer or other appropriate 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, except that neither the Attorney General’s failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions .of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.”

       Mississippi and its subdivisions have been determined to be covered by the Act. 30 Fed. Reg. 9897 (Aug. 6, 1965).

       “[A]n individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by § 5, but'has not been subjected to the required federal scrutiny.” Allen v. State Board of Elections, 393 U. S. 544, 561 (1969). We construed the statute to require such a suit to be heard by a three-judge court. Ibid.

       Appellants alleged that prior to the Voting Rights Act of 1965, less than 200 black citizens of Canton were qualified electors. At the trial of this lawsuit, one of the appellants testified that there were approximately 3,050 registered black electors- and 2,850 white electors, for the 1969 election. Based on an average index of two voters per residence, the District Court concluded that the 1969 figures included approximately 82 black voters and .176 white voters from the annexations in this case. The annexations in this case also increased the land area of the city by approximately 50% and required the boundaries of all four election wards to be changed to conform to the new city limits.

       The municipal primary elections were originally scheduled for May 13 and 20, 1969, and the municipal general elections for June 3, 1969. The primary elections were actually held October 7 and 14, and the general election October 28, 1969, after the three-judge court dissolved the temporary injunction.

       The claim concerning the change from ward to at-large election of aldermen was added by amendment.

       “The ChaxRmak : I say, is., it not a fact that the keystone of this situation' is that these changes .in procedures that we are talking about, like changing from a paper ballot to a machine, may not likely have the effect of denying or abridging rights guaranteed by the 15th amendment?
      “Mr. Katzenba-ch : . . . Even in a sense a most innocent kind of ,law, as our experiences have indicated time and time again, can be used. You change the place of registration, for instance.” Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, p. 62 (1965)..

       One Congressman who had supported the 1965 Act observed, “When I voted for the Voting Rights Act of 1965, I hoped that 5 years would be ample time.- But resistance to progress has been' more subtle and more effective than I thought possible. A whole arsenal of racist weapons has been perfected. Boundary lines have been gerrymandered, elections have been switched to an at-large basis, counties have been consolidated, elective offices have been abolished where blacks had a chance of winning, the appointment, process has been substituted for the elective process, election officials have withheld the necessary information foe voting or running for office, and both physical and economic intimidation have .been employed.
      “Section 5 was intended to prevent the use of most of these devices. But apparently the States rarely obeyed the mandate of that section, and the Federal Government was too timid in its enforcement,” Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, pp. 3-4 (1969) (remarks of Rep. McCulloch).

       Congress has extended the life of the 1965 Act, including § 5, from 1970 to 1975. Voting Rights Act Amendments of 1970, Pub. L. 91-285, 84 Stat. 314.

       In its amicus brief filed in this Court in Fairley v. Patterson, No. 25, O. T. 1968, the Government took the position that § 5 applied to “laws [that] substantially change the constituency of certain elected officials .... There is surely no doubt today that the right to vote can be curtailed as effectively by an impermissible demarcation of an elected official’s constituency as by the destruction of ballots or the refusal to permit access to the voting booth.” Memorandum for the United States as Amicus■ Curiae 13. While the Government was arguing there that § 5 reached a change from ward to at-large elections, its interpretation is equally germane to the boundary annexations in the present cáse. Mr. Justice Harlan argues that the apparent clarity of the Department’s position, taken before congressional committees and before this Court, is clouded by the Department’s failure to challenge unsubmitted annexations in cov-. ered States. However, the Government, in its amicus brief in Fairley, specifically denied that any significance could be attributed to the Government’s failure to bring suit. In arguing that § 5 applied to redistrieting and reapportionment in States covered by the Act, the Government stated:
      “Nor can the Attorney General’s failure to [bring suit] in. cases involving reapportionment and redistricting be properly viewed as undermining these Section 5 cases or refuting the clear congressional • intent that that provision should be given broad scope. The most that can be assumed from past silence is that the Attorney General was not prepared to interpose an objection to the changes being effected . . . Memorandum- for the United States as Amicus Curiae, supra, at 22.
      Moreover, there is no indication that the Attorney General or other Justice Department officials were aware of the boundary changes referred to in the dissenting opinion; no mention of them appears in any of the extensive congressional materials on' the Justice Department’s enforcement activities under § 5, submitted to Congress in relation to the recent extension of the Act from 1970 to 1975. Hearings on'Amendments to the Voting Rights Act of 1965 before the Subcommittee on Constitutional Rights of the Senate Committee on-the Judiciary, 91st Cong., 1st and 2d Sess. (1969, 1970); Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3 (1969). Finally, attributing significance to any apparent failure of the Government to act is particularly hazardous in this case. Section 5 was enacted in large part because of the acknowledged and anticipated inability of the Justice Department — given limited resources — to investigate independently all changes with respect to voting enacted by States and subdivisions covered by the Act. See n. 13, infra. For- that reason, § 5 places the burden on the affected polities to submit all changes for prior approval. That the Department may hav£ been unable to discover and investigate changes not reported to it should not, in these circumstances, be surprising, and, does not cast any serious doubt on explicit official statements of the Department’s interpretation of the statute.

       The table reflects the fact that only South Carolina has complied rigorously with § 5. Through June 1969, it submitted 252 changes for approval, including all three annexations (and one consolidation) that wére approved by the state legislature between 1965 and 1969. No political subdivisions of South Carolina, however, submitted any changes on their own initiative. Georgia and its subdivisions had. submitted 60 changes for approval, including one annexation, one consolidation of election districts, and two changes in the lines of election districts. It is true that the Georgia Session Laws reflect numerous annexations that were not submitted to the Attorney General. It is also true that the Georgia Session Laws reflect at least an equal number of changes, obviously covered under any interpretation of § 5, that were also not. submitted. For example, in 1965,. the Georgia State Legislature enacted the following acts, each applicable, to one municipality, which were not submitted to the Attorney General: four acts changing voter qualifications in municipal election0 three acts changing municipal elections from paper ballots to voting machines, four acts completely revising municipal election codes, and two acts requiring a majority vote, instead of a plurality, for election of city officials. In 1968, the Georgia State Legislature enacted the following acts, each applicable to one municipality, which were not submitted to the Attorney General: seven acts ■ changing the dates of municipal elections and increasing the terms of municipal officials, one act .creating a voter residency requirement and an oath to be taken by all voters, one act changing the number of aldermen and requiring a majority vote for election of aldermen, one act changing voter qualifications, and one act completely revising a municipal election code. Nor is this an exhaustive list even for those- two years. The remaining four States covered by the Act — Mississippi, Alabama, Louisiana, and' Virginia — have submitted- a combined total of 33 changes. The only conclusion to be drawn from this unfortunate record is that only one State is regularly complying with § 5’s requirement.

       The reason for Canton’s failure to conform its election to state law does not appear in the record. On oral argument, appellee’s counsel stated that the lapse was due to his overlooking the 1962 law.

        E. g., Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, pp. 60, 72 (1965); Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess, pt. 1, pp. 14r-17 (1965);. Ill Cong. Rec. 10727 (1965) (remarks of Sen. Tydings); id., at 15645, 15648 (remarks of Rep. Celler); id., at 16221 (remarks of Rep. Corman). Opponents of the Act also recognized the severity of § 5’s requirements. E. g., id., at 10725 (remarks of Sen. Talmadge); id., at 15657 (remarks of Rep. Willis).

       We add only one restriction: If the District Court decides that a new election is required, Canton should be permitted to enforce any changes at the new election for which it can obtain federal approval.

       The fact that the Attorney General has expressed his opinion on the merits of the handful of border changes which have been presented to him, rather than dismissing them as not within the scope of § 5, seems to me to be entitled to little weight in the face of the enormous number of annexations which have not been submitted to him and which he has done nothing about. In the fiscal year beginning July 1, 1967, there were over 40 municipal annexations in South Carolina. 1967-1968 Report of the Secretary of State of South Carolina 165-166. None of these were submitted for the approval of the Attorney General. Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3-, pp. 310-312 (1969). The Georgia Session Laws for the years 1965 to 1969 reveal over 100 boundary changes in Georgia cities. Only one was submitted to the Attorney General, and that one also involved redrawing of ward lines. So far as the face of the statute, Act of March 2, 1966, No. 235, Ga. Laws 1966, p. 2729, reveals, the redrawing of ward lines may have completely altered the political map of the city. In the ease at hand, the old ward lines were simply extended to the new city limits.

       Assuming that the statute requires determination of this hypothetical factual question, I would have thought that it should be passed on by the District Court in the first instance. The record is simply too sparse to reveal why the 1962 statute was not followed in 1965, or whether the same cause would have been operative a year earlier. If the defendants are not entitled to prevail on the theory that the plaintiffs failed to come forward with adequate proof of the procedure in force or effect in 1964, they are at least entitled to a hearing at which they may address themselves to the issue.

       Voting Rights Act of 1965, §5, 42 U. S. C. § 1973c (1964 ed., Supp. V).

       301 F. Supp., at 568.

        Id., at 566-567.

        Id., at 567.

       See Debates in the Federal Convention of 1787 as reported by James Madison in Documents Illustrative of the Formation of the Union of American States 605, 789, 856 (1927).

       Chapter 537 of the Laws of Mississippi of 1962, provides:
      “All aldermen shall be selected by vote of the entire electorate of the municipality. Those municipalities which determine to select one alderman from each of the four (4)' wards shall select one from the candidates for alderman from each particular ward who shall be a resident of said ward by majority vote of the entire electorate of the municipality.’''
      A strong argument can be made that this statute was “procedure with respect to voting •. . . in force or effect on November 1, 1964,” in which case the officials of Canton were prohibited by the Voting Rights Act from not enforcing it absent federal approval.

       Section 5 of this Act and its enforcement by the Court is reminiscent of treatment accorded the Colonies by the British King. Some of the Colonies’ complaints of July 4, 1776, were:
      “He has refused his Assent to Laws, the most wholesome and necessary for the public good. — He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. — He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. — He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. . . .” Declaration of Independence (July 4, 1776).

       My Brothers The Chief Justice and Mr. Justice Blackmun have stated that “[g]iven the decision in Allen v. State Board of Elections . . . [they] join in the judgment” of the Court in this case. I have to admit that I do not precisely understand what they mean by “given Allen.” Neither The Chief' Justice nor Mr. Justice Blackmun was a member of the Court when Allen was decided. They are certainly not bound by the Court’s past mistakes if they think, as I do, that Allen was a mistake. Yet, I do not understand that “given AUen,” necessarily means that they now agree to what was decided in that case. I believe that Allen was wrongly decided and would overrule it now. Moreover, I do not believe that acceptance of the Court’s decision in Allen necessitates compelling the city of Canton to seek the Attorney General’s consent to either the changes in local polling places or the other changes at issue in this case.


author: Me. Justice Brennan

text:
    BLOUNT, POSTMASTER GENERAL, et al. v. RIZZI, dba THE MAIL BOX
    No. 55.
    Argued November 10, 1970
    Decided January 14, 1971

      BkeNNan, J., delivered the opinion of the Court,-in which Burger, C. J., and Douglas, Harlan, Stewart, White, Marshall, and Blackmun, JJ.', joined. Black, J., concurred in the result.

      Peter L. Strauss argued the cause fqr appellants in both cases. With him on the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Robert V. Zener, Donald L. Horowitz, David Nelson, and Charles D. Hawley.

      Stanley Fleishman argued the cause for appellee in No. 55. With him on the. brief was Sam Rosenwein. Robert Eugene Smith argued the cause, for appellee in No. 58. With him on- the brief was Hugh W. Gibert.

      Together with No. 58, United States et al. v. The Book Bin, on appeal from the United States District Court for the Northern District of Georgia.

   Me. Justice Brennan

delivered the opinion of the. Court.

No. 55 (hereafter Mail Box) draws into question the constitutionality of 39 U. S. C. §4006-(now 39 U. S. C. § 3006, Postal Reorganization Act, 84 Stat. 747), under which the Postmaster General, following administrative hearings, may halt use of the mails and of postal money orders-for commerce in allegedly obscene materials. No. 58 (hereafter Book Bin) also draws into question the constitutionality of §4006, and, in addition, the constitutionality of 39 U. S. C. § 4007 (now 39 U. S. C. § 3007), 84 Stat. 748, under which the Postmaster General may obtain a court order permitting him to detain the defendant’s incoming mail pending the outcome of § 4006 proceedings against him.

39 U. S. C. § 4006 provides in pertinent part:

“Upon evidence satisfactory to the Postmaster Genéral that a person is obtaining or attempting to obtain remittances of money or property of any kind through the mail for an obscene . . . matter ..., or is depositing or causing to be deposited in the United States mail information as to where, how, or from whom the. same may be obtained, the Postmaster General may—
“(1) direct postmasters at-the office at which registered letters or other letters- or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked 'Unlawful’; and
“(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes.”

Proceedings under ■ § 4006 are conducted according to departmental regulations. A proceeding js begun by the General Counsel of the Post Office Department by written complaint and notice of hearing. 39 CFR §§ 952.5, 952.7,- 952.8. The Judicial Officer of the Department holds a trial-type hearing at which a full record is transcribed. He renders an opinion -which includes findings of fact and a statement of reasons. 39 CFR §§ 952.9-952.25. The decision is to “be rendered with all due speed,” 39 CFR § 952.24 (a), and there is an administrative appeal. 39 CFR § 952.25. No § 4006 order may issue against the defendant until completion of the administrative proceeding. If, however,- the Postmaster General wishes to detain the defendant’s incoming mail before the termination of the § 4006 proceedings, he may apply to the United States District Court for the district in which the defendant resides, under 39 U. S. C. § 4007, which in pertinent part provides:

“In preparation for or during the pendency of proceedings under [§4006] of this title, the United States district court in the district in which the defendant receives his mail shall, upon application therefor by the Postmaster General and upon a showing of probable cause to believe the statute is being violated, enter a temporary restraining order and preliminary injunction pursuant to rule 65 of the Federal Rules of Civil Procedure directing the detention of the defendant’s incoming mail by the postmaster pending the conclusion of the statutory proceedings and any appeal therefrom. .The district court may provide in the order that the- detained mail be open to examination by the defendant, and such mail be delivered as is clearly not connected with the alleged unlawful activity. An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings.”

In Mail Box, the Postmaster General Began administrative proceedings under § 4006 on November 1, 1968. The administrative hearing was concluded December 5, 1968. The Judicial Officer, filed his decision December 31, Í968, finding that the specified magazines were obscene and, therefore, entered a § 4006 order — 6Í days after the complaint was filed. Mail Box filed a complaint in the United States District Court for the Central District of California seeking a declaratory judgment that § 4006 was unconstitutional and an injunction against enforcement of the administrative order. A three-judge court was convened and held that 39 U. S. C. § 4006 “is unconstitutional on its face, because it fails to meet the requirements of Freedman v. Maryland (1965) 380 U. S. 51....” 305 F. Supp. 634, 635 (1969). The court, therefore, vacated the administrative order, directed the delivery “forthwith” of all mail addressed to Mail Box, and enjoined any proceedings to enforce § 4006.

In Book Bin, the Postmaster General applied to the District Court for the Northern District of Georgia for a § 4007 order, pending the completion of § 4006 proceedings against Book Bin. Book Bin counterclaimed, asserting that both §§ 4006 and 4007 were unconstitutional and that their énforcement should be enjoined. A three-judge court was convened and held both sections unconstitutional. It agreed with the three-judge court in Mail Box that the procedures of § 4006 were fatally deficient under Freedman v. Maryland, 380 U. S. 51. (1965), and also held that the finding under § 4007 merely of “probable cause” to believe material was obscene was hot a constitutionally sufficient standard to support a temporary mail detention order. 306 F. Supp. 1023 (1969).

We noted probable jurisdiction of the Government’s appeals. 397 U. S. 959, 960 (1970). We affirm the judgment in each case.

Our discussion appropriately begins with Mr. Justice Holmes’ frequently quoted admonition that, “The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues . . . .” Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 437 (1921) (dissenting opinion); see also Lamont v. Postmaster General, 381. U. S. 301 (1965). Since § 4006 on its face, and §4007 as applied, are procedures designed to deny use of the mails to commercial distributors of obscene. literature, those procedures violate the First Amendment unless they include built-in safeguards against curtailment .of constitutionally protected expression, for Government “is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech.” Marcus v. Search Warrant, 367 U. S. 717, 731 (1961). Rather, the First Amendment requires that procedures be incorporated- that “ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. . . . Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards . . . is . . ; but a special instance of the larger principle that the freedoms of expression must; be ringed about with adequate bulwarks. . . .” Bantam, Books, Inc. v. Sullivan, 372 U. S. 58, 66 (1963). Since we have recognized that “the line between speech unconditionally guaranteed and speech which may legitimately be regulated ... is finely drawn. . . . [t]he separation of legitimate from illegitimate speech calls for . . . sensitive tools . . . .” Speiser v. Randall, 357 U. S. 513, 525 (1958).

The procedure established by § 4006 and the imple- ■ menting regulations omit those “sensitive tools” essential to satisfy the requirements of the First Amendment. The three-judge courts correctly held in these cases that our decision in Freedman v. Maryland, 380 U. S. 51 (1965) compels this conclusion. We there considered the constitutionality of a motion picture censorship procedure administered by a State Board of Censors. We held that to avoid constitutional infirmity a scheme of administrative censorship must: place the burdens of initiating judicial review and. of proving that the material is unprotected expression on the censor; require “prompt judicial review” — a final judicial determination on the merits within a specified, brief period — to prevent the administrative decision of the censor from achieving an effect of finality; and limit to preservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of the final judicial determination. 380 U. S., at 58-60.

These safeguards are lacking in the administrative censorship scheme created by §§4006, 4007, and the regulations.

The scheme has no statutory provision requiring gov-ernmentally-initiated judicial participation in the procedure which bars- the magazines from the mails, or even any provision assuring prompt judicial review. The scheme does differ from the Maryland scheme involved in-Freedman in that under the Maryland scheme the motion picture could not be exhibited pending conclusion of the administrative hearing, whereas under § 4006 the order to return mail or to refuse to pay money orders is. not imposed until there has been an administrative determination that the magazines are obscene. This, however, does not redress the fatal flaw of the procedure in failing to require that the Postmaster General seek to obtain a prompt judicial determination of the obscenity of the material; rather, once the administrative proceedings disapprove the magazines the distributor “must assume the burden of instituting judicial proceedings and of persuading the courts that the . . . [magazines are] protected expression.”' 380 U. S., at 59-60. The First Amendment demands that the Government must assume this burden. “The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” 380 U. S., at 58.

Moreover, once a § 4006 administrative order has been entered against the distributor, there being no provision for judicial review, the Postmaster may stamp as “Unlawful” and immediately return to the sender orders for purchase of the magazines addressed to the distributor, and prohibit the payment of postal money orders to him. Such a scheme “presents peculiar dangers tó constitutionally protected speech. . . . Because the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court — part of an independent branch of government — to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.” 380 U. S., at 57-58. Appellants suggest that we avoid the constitutional question raised by the failure of § 4006 to provide that the Government seek a prompt judicial determination by construing that section to deny the administrative order any effect whatever, if judicial review is sought by the distributor, until the completion of that review. Apart from the fact that this suggestion neither requires that the appellants initiate judicial proceedings, nor provides for a prompt judicial determination, it is for Congress, not this Court, to rewrite the statute.

The authority of the Postmaster General under § 4007 to apply to a district court for an order directing the detention of the distributor’s incoming mail pending the conclusion of the § 4006 administrative proceedings and any appeal therefrom plainly does not remedy the defects in § 4006. That section does not provide a prompt proceeding for a judicial adjudication of the challenged obscenity of the magazine. First, it is entirely discretionary with the Attorney General whether to institute a § 4007 action and, therefore, the section does not satisfy the requirement that the appellants assume the burden of seeking a judicial determination of the alleged obscenity of the magazines. Second, the district court is required to grant the relief sought by the Postmaster General upon a showing merely of “probable cause” to believe § 4006 is being violated. We agree with the three-judge court in Book Bin that to satisfy the demánd of the First Amendment “it is vital that prompt judicial review on the issue of obscenity — rather than merely probable cause — be assured on the Government’s initiative before the seyere restrictions in §§4006, 4007, are invoked.” 306 F. Supp., at 1028. Indeed, the statute expressly provides that, “An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings.”

Moreover, § 4007 does not in any event itself meet the requisites of the First Amendment. Any order is-suéd by the district court remains in effect “pending the conclusion of the statutory proceedings and any appeal therefrom.” Thus, the statute not only fails to provide that the district court should make a final judicial determination of the question of obscenity, expressly giving that authority to the Judicial Officer, but it fails to provide that “[a]ny restraint imposed in advance of a final judicial determination on the merits must ... be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.” 380 U. S., at 59.

The appellees here not only were not afforded “prompt judicial review” but they “can only get full judicial review on the question of obscenity — by which the Postmaster would be actually bound — after lengthy administrative proceedings, and then only by [their] own initiative. During the interim, the prolonged threat of an adverse administrative] decision in §4006 or the reality of a sweeping § 4007 order, will have a severe restriction on the exercise of [appellees’] First Amendment rights — all without a final judicial determination of obscenity.” 306 F. Supp., at 1028. .

The judgments of the three-judge courts in Nos. 55 and 58 are

Affirmed.

Mr. Justice Black concurs in the result.

      The codification of the Act will appear in. the 1970 edition of the United States Code. This opinion treats the old Code sections as current.

       Section 4006 was enacted in 1950. 64 Stat. 451. In 1956 the Postmaster General sought and obtained the power himself to enter an order, pending administrative proceedings under § 4006, that all mail' addressed to the defendant in the § 4006 proceeding be impounded. The order was to expire at the end of 20 days unless the Postmaster General sought in a federal district court, an order continuing the impounding. 70 Stat. 699. In 1959, extensive hearings, were held in the House on the Post Office’s request that the 20-day period be extended to 45 days, and that the standard of necessity be changed to “public interest.” Hearings on Obscene Matter Sent Through the Mail .before the Subcommittee on Postal Operations of the House Committee on Post Office and Civil Service, 86th Cong., 1st Sess., pts. 1, 2, and 3 (1959); Hearings on-Detention of Mail for Temporary Periods before the House Committee on Post Office and Civil 'Service, 86th Cong., 1st Sess. (1959). Instead, Congress enacted § 4007 which stripped, the Postmaster General of his power to issue an interim order for toy period, and directed him to seek such an order in a federal district court. One Senate Report expressed misgivings when the Postmaster General-had originally sought the impounding power: “The committee recognizes .that even' in its present form the bill gives the Postmaster General extraordinary and summary powers to impose a substantial penalty by impounding a person’s mail for up to 20 days in advance of any hearing or any review by the courts. Such power is directly contrary to the letter and spirit of normal due process, as exemplified by the Administrative Procedure Act, which requires a hearing before any penalty may be imposed. The Post Office Department has made its case for this legislation on the grounds that a temporary and summary procedure is required to deal with fly-by-night operators using the mails to defraud or to peddle pornography, who may go out of business — or change the name of their business or their business address — before normal legal procedures can be brought into operation. • The Post Office Department has not recommended, nor does this committee approve, the use of the temporary impounding procedure under this bill as a substitute for the. normal practice of an advance hearing or the bringing of an indictment for violation- of the criminal code in all cases involving legitimate and well-established business operations. The committee would not approve the use of the extraordinary- summary procedure under the bill against legitimate publishers of newspapers, .magazines, or books in cases in which a Postmaster General might take objection to an article, an issue, or a volume.” S. Rep. No. 2234, 84th Cong., 2d Sess., 2-3 (1956).

       Section 4007 also authorizes the Postmaster General to apply for an impounding order during the pendency of proceedings under 39 U. S. C. §4005 (1964 ed., Supp. V), now §3005. Section 4005, as amended (82 Stat. 1153), permits the return to the sender of any mail sent to the perpetrator of what the Postmaster General finds to be a scheme for .obtaining money by means of false representations. That section has been upheld against First Amendment attack. Donaldson v. Read Magazine, 333 U. S. 178 (1948). The Government does not argue in its brief that Donaldson, compels the conclusion that § 4006 also is constitutional but only that “Section 4006, ’ like the fraud statute upheld in Donaldson . . . meets all necessary constitutional standards.” Brief for Appellants 20. On oral argument, the Government suggested that an affirmance in this case might jeopardize the validity of § 4005 and the continued vitality of Donaid-son. But no argument was offered to support the suggestion.

       The order was sought with respect to a' single issue of one

       We therefore have no occasion to consider the argument of ap-pellees that Stanley v. Georgia, 394 U. S. 557 (1969), presupposes that an individual has a constitutional right to obtain possession of the challenged materials by delivery through the mail.

       In 1962,- three Justices of the Court stated: “[We have] ... no doubt that Congress could constitutionally authorize a noncriminal process in the nature of a judicial proceeding under closely defined procedural safeguards. But the suggestion that Congress may constitutionally authorize any process other than a fully .judicial one immediately raises the gravest doubts.” Manual Enterprises v. Day, 370 U. S. 478, 518-519 (1962) (opinion of BreNNAN, J.).

       The Judicial Officer is appointed by the Postmaster General to “perform such quasi-judicial duties as the Postmaster General may designate.” 39 U. S. C. § 308a. He functions as hearing examiner in many proceedings in addition to those under § 4006. The appellants argue that the Judicial Officer enjoys “many of the insulations that judges enjoy.” What the Constitution requires, however, is that a noncriminal censoring process require govemmentally initiated full judicial participation. ■ Clearly, § 4006 does not so provide.

       The Court said in Freedman v. Maryland that the procedure considered in Kingsley Books, Inc. v. Brown, 354 U. S. 436 (1957), provides “a model ... [of an] . . . injunctive procedure designed to prevent the sale of. obscene books.” 380 U. S., at 60.

       This provision was added at the request of Postmaster General Summerfield who desired it expressly to forestall judicial review pending completion of the administrative proceeding. ' “This would guarantee that counsel for a mailer will not be able to raise successfully a bar to all further administrative proceedings in a case in which the Government failed to prevail .on its motion for a preliminary injunction.” Letter from Arthur E. Summerfield, Postmaster General, to Senator Olin D. Johnston, Chairman, Senate Committee on Post Office and Civil Service, U. S. Code Cong. & Admin. News, 86th Cong., 2d Sess., 3249 (1960), In 1959, Postmaster General Summer-field had testified:
      “In spite of the frustrations and the legal complications, and even the court decisions [which the Postmaster General had described as handing down 'the'very broad definition of obscenity’], I feel, a responsibility to the public to attempt to prevent the use of the mails for indecent material, and to seek indictments and prosecutions for such offenses, even though it may be argued that it falls in the category of material concerning which there have been previous rulings favorable to the promoters.” Hearing on Obscene Matter Sent Through the Mail before the Subcommittee on Postal Operations of the House Committee on Post Office and Civil Service, 86th Cong., 1st Sess., pt. 1, p. 6 (1959).

       Appellants point out that orders under §§ 4006 and 4007 generally allow the addressee to open his mail at the post office and receive any first class mail demonstrated clearly not to be connected with the allegedly unlawful use. This provision is provided in light of 39 U. S. C. § 4057 which provides that “[o]nly an employee opening dead mail by authority of the Postmaster General, or a person holding a search warrant authorized by law may open any letter or parcel of the first class which is in the custody of the Department.” See also 39 CFR § 117.1. But, query whether such provision of the order requires an “official act,” viz., examining the mail, which constitutes an unconstitutional limitation on the addressee’s First Amendment rights. Lamont v. Postmaster General, 381 U. S. 301 (1965).


author: Per Curiam. Mr. Justice Stewart,

text:
    KENNERLY et al. v. DISTRICT COURT OF THE NINTH JUDICIAL DISTRICT OF MONTANA et al.
    No. 5370.
    Decided January 18, 1971
   Per Curiam.

This case arises on petition for certiorari from a judgment of the Supreme Court of Montana. The petition for certiorari and the motion to proceed in forma pauperis are granted. For reasons appearing below, we vacate the judgment of the Supreme Court of Montana and remand the case for further proceedings not inconsistent with this opinion.

Petitioners are members of the Blackfeet Indian Tribe and reside on the Blackfeet Indian Reservation in Montana. The tribe is duly organized under the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, 25 U. S. C. § 461 et seq. In July and August of 1964, petitioners purchased some food on credit from a grocery store located within the town limits of Browning, a town incorporated under the laws of Montana but located within the exterior boundaries of the Blackfeet Reservation.

A suit was commenced in the Montana state courts against petitioners on the debt arising from these transactions. Petitioners moved to dismiss the suit on the ground that the state courts lacked jurisdiction because the defendants were members of the Blackfeet Tribe and the transactions took place on the Indian reservation. The lower state court overruled the motion and petitioners, pursuant to Montana,rules of procedure, petitioned the Supreme Court of Montana for a “writ of supervisory control” to review this lower court ruling. The State.Supreme Court took jurisdiction and affirmed.

Prior to the passage of Title IV of the Civil Rights Act of 1968, 82 Stat. 78, 25 U. S. C. §.§ 1321-1326 (1964 ed., Supp. V), discussed infra, state assumption of civil jurisdiction — in situations where Congress had not explicitly extended jurisdiction — was governed by § 7 of the Act of August 15, 1953, 67 Stat. 590. Section 7 of that statute provided:

“The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act [referring to §§ 2 and 4, see n. 1, supra], to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.”

Pursuant to this statute, the Montana Legislature enacted Chapter 81, Laws of 1963* (§§ 83-801, 83-806, Montana Rev. Codes Ann. (1966)), extending criminal, but not civil, jurisdiction'over Indians of the Flathead Indian Reservation. But Montana never took “affirmative legislative action” — concerning either civil or criminal jurisdiction — with respect to the Blackfeet .Reservation.

However, on November 20, 1967, the Blackfeet Tribal Council adopted Chapter 2, Civil Action, § 1, as part of the Blackfeet Tribal Law and Order Code, which provides, in relevant part:

“The Tribal Court and the State shall have concurrent and not exclusive jurisdiction of all suits wherein the defendant is a member of the Tribe which is brought before the Courts. . . .”

The Montana Supreme Court relied on this pre-1968 Tribal Council action as an alternative basis for the assertion of state civil jurisdiction over the instant litigation. In Williams v. Lee, 358 U. S. 217 (1959), a non-Indian brought suit against a Navajo Indian for a debt arising out of a transaction which took place on the Navajo Reservation. The Arizona State Supreme Court upheld the exercise of jurisdiction and we reversed. In the instant case, the Montana Supreme Court attempted to reconcile its result with Williams on the theory that the transfer of jurisdiction by unilateral tribal action is consistent with the exercise of tribal powers of self-government. 154 Mont. 488, 466 P. 2d 85.

The Court in Williams, in the process of discussing the general question of state action impinging on the affairs of reservation Indians, noted that “[essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” 358 U. S., at 220. With regard to the particular question of the extension of state jurisdiction over civil causes of action by or against Indians arising in Indian country, there was, at the time of the Tribal Council resolution, a “governing Act of Congress,” i. e., the Act of 1953. • Section 7 of that statute conditioned the assumption of state jurisdiction on “affirmative legislative action” by the State; the Act made no provision whatsoever for tribal consent, either as a necessary or sufficient condition to the assumption of state jurisdiction. Nor was the requirement of affirmative legislative.action an Idle choice of words; the legislative history of the 1953 statute shows that the requirement was intended to assure that state jurisdiction would not be extended until the jurisdictions to be responsible for the portion of Indian country concerned manifested by political action their willingness and ability to discharge their new responsibilities. See H. R. Rep. No. 848, 83d Cong., 1st Sess., 6, 7 (1953); Williams, supra, at 220-221. Our conclusion as to the intended governing force of § 7 of the 1953 Act is reinforced by the comprehensive and detailed congressional scrutiny manifested in those instances where Congress has undertaken to extend the civil or criminal jurisdictions of certain States to Indian country. See n. 1, supra.

In Williams, the- Court went on to note the absence of affirmative congressional .action, or affirmative legislative action by the people of Arizona within the meaning of the 1953 Act. 358 U. S., at 222-223. Here it is conceded that Montana took no affirmative legislative'action with respect to the Blackfeet Reservation. The unilateral action of the Tribal Council was insufficient to vest Montana with ' jurisdiction over Indian country under the 1953 Act.

The remaining question is whether the pre-1968 manifestation of tribal consent by tribal council action can operate to vest Montana with jurisdiction under the provision of the Civil Rights Act of 1968. Title IV of the 1968 statute repealed § 7 of the 1953 Act and substituted a new regulatory scheme for the extension of state civil and criminal jurisdiction to litigation involving Indians arising in Indian country. See 25 U. S.- C. §§ 1321-1326 (1964 ed., Supp. V). Section 402 (a) of the Act, 25 U. S. C. § 1322 (a) (1964 ed., -Supp. V), dealing with civil jurisdiction, provides:

“The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians'or to which Indians are parties which arise in the areas of Indian, country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.”

Section 406 of the Act, 25 U. S. C. § 1326 (1964 ed., Supp. V), then provides:

“State jurisdiction acquired pursuant to this sub-chapter with respect to criminal offensés or civil causes of action, or with respect to both, shall be applicable in Indian country only where the- enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose. The Secretary of the Interior shall call such special election under such rules and regulations as he may prescribe, when requested to do so by the tribal council or other governing body, or by 20 per centum of such enrolled adults.”

We think the meaning of these provisions is clear: the tribal consent that is prerequisite to the assumption of state jurisdiction under, the provisions of Title IV of the Act must be manifested by majority vote of the enrolled Indians within the affected area of Indian country. Legislative action by the Tribal Council does not comport with the explicit requirements of the Act.

Finally, with regard to the 1968 enactment, this case presents no question concerning the power of the Indian tribes to place time, geographical, or other conditions on the “tribal consent” to state exercise of jurisdiction. Rather, we are presented solely with a question of the procedures by which “tribal consent” must be manifested under the new Act. Thus the suggestion made in dissent that, under today’s disposition, “[t]he reservation Indians must now choose between exclusive tribal court jurisdiction on the one hand and permanent, irrevocable state jurisdiction on the other,” is incorrect.

The judgment of the Supreme Court of Montana is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Stewart,

with whom Mr. Justice White joins,

dissenting.

This case does not involve state action infringing “the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U. S. 217, 220. To the contrary, the exercise of state jurisdiction complained of here , was expressly authorized by tribal law. Blackfeet Tribal Law and Order Code,-c. 2, § 1. The Court holds that this tribal law is invalid because Congress has restricted the right of Indian self-government by specifying the exclusive procedure by which reservation Indians may confer on a state court jurisdiction over them.

I think that Congress did not intend in enacting either § 7 of the Act of August 15, 1953, 67 Stat. 590, of the successor to that section, Title IV of the "Civil Eights Act of 1968, §§ 402 (a), 406, 25 U. S. C. §§ 1322, 1326 (1964 ed., Supp. Y), to invalidate tribal legislation that authorizes state courts to take jurisdiction over actions brought against a member of the' tribe. It is plain to me that. these statutes reflect only a congressional 'determination that there is a need for protective limitations when state jurisdiction over reservation Indians is to be permanently authorized. But I can find in these statutes no suggestion that Congress determined that such limitations are necessary when reservation Indians pass a law that authorizes state court jurisdiction over them. Nor can I see any reason to suppose that to invalidate such a law will effectuate the purpose of Congress. When state court jurisdiction over reservation Indians rests on tribal legislation, as distinct from a permanent federal authorization, the interests of the reservation Indians are fully protected by their ability to repeal the grant of jurisdiction to the state courts and thereby to return exclusive jurisdiction to their own courts.

The decision reached by the Court today substantially frustrates productive self-government by reservation Indians because it unjustifiably reduces the options available to them with respect to state court jurisdiction. The reservation Indians, must now choose between exclusive tribal court jurisdiction on the one hand and permanent, irrevocable state jurisdiction on the other. This means that because of a temporary inability to maintain a tribal court, reservation Indians may-find it necessary, to cede jurisdiction to g, State for all time. It also means that reservation Indians do not have the option of a trial period of state jurisdiction under the authority of their -own laws. I cannot believe that Congress intended to withdraw these options.

Finally, it seems to me quite wrong to invalidate an enactment of the Blackfeet Tribal Council, which is not a party to this litigation, without first giving the Council an opportunity at least to submit a brief in support of its legislation. Before deciding this case the Court requested the Solicitor General to submit the views of the United States, whose law the Court now interprets as controlling. I should have thought the most basic principles of fair play would dictate a like request to the Blackfeet Tribal Council before the Court strikes down its law as invalid.

      For example, § 4 of the Act of August 15, 1953, 67 Stat. 589, 28 U. S. C. § 1360 (a), extended jurisdiction over civil causes of action arising in Indian country to which Indians are parties to five States. The statute is illustrative of the detailed regulatory scrutiny which Congress has traditionally brought to bear on the extension of state jurisdiction, whether civil or criminal, to actions to which Indians are parties arising in Indian country. ' See also § 2 of the Act, 67 Stat. 588, 18 U. S. C. § 1162, extending criminal jurisdiction to the same States over offenses involving Indians committed in Indian country. Montana was not one of the five States accorded civil and criminal jurisdiction under these sections of the statute.

       As discussed infra, § 403 (b) of the Civil Rights Act of 1968, 82 Stat. 79, 25 U. S. C. § 1323 (b) (1964 ed., Supp. V), repealed § 7 of the Act of 1953. But § 403 (b) provides: “such repeal shall not affect any cession of jurisdiction made pursuant to [§ 7] prior to its repeal.” Further, §§ 402 and 406 of the 1968 Act, which govern the assumption of civil jurisdiction by States, appear to cover only States not presently having such jurisdiction.
      The instant litigation commenced aft.er the passage .of the 1968 Act. However, since the Tribal Council action preceded the 1968 Act — and under the state court’s reasoning vested, the State with jurisdiction'at that point in time — we must consider the validity of the State’s assertion of jurisdiction under the 1953 Act as well as the 1968 Act.

       The Montana Supreme Court also sought to distinguish Williams outright on the ground that the plaintiff in that case had, at one point,.secured a writ of attachment on Indian-owned livestock on the Navajo Reservation, bringing into play'special federal' protective policies with regard to Indian livestock. However, the Arizona Supreme Court judgment under review in Williams had set aside the writ of attachment on the very basis relied upon by the Montana Supreme Court in its opinion in this case ás a distinguishing ground. Williams v. Lee, 83 Ariz. 241, 247-248, 319-P. 2d 998, 1002-1003 (1958). Respondent in Williams did not seek review of that portion of the judgment; and, of course, the Court’s opinion in Williams makes no reference to the attachment.

       But see n. 2, supra.

       The plain meaning of the statute is reinforced by the legislative history. Title IV of the 1968 Act was offered and principally sponsored by Senator Ervin of North Carolina as part of an amendment by way of a substitute to H. R. 2516, which eventually became part of the Civil Rights Act of 1968. See 114 Cong. Rec. 393-395. In discussing Title IV, Senator Ervin stated, id., at 394:
      “This title repeals section 7 [of the 1953 Act] and authorizes States to assert civil and criminal jurisdiction in Indian country only after acquiring the consent of the tribes in the States by referendum of all- reservated Indians.”
      See also S. Rep. No. 721, 90th Cong., 1st Sess., 32 (1967) (additional views,jof Sen. Ervin). Senator Ervin’s proposals were eventually adopted as an amendment to' the Dirksen amendment to the 1968 Act. See 114 Cong. Rec. 5836-5838.

       The dissent’s rebutting footnote infers from the express allowance for selective state exercise of jurisdiction a congressional intent to exclude selective tribal consent, to state exercise of jurisdiction. That inference is so obviously not compelled by either the language or structure of 25 U. S. C. § 1322 (a) (1964 ed., Supp. V), the full text of which is quoted above, that we think no further response is needed. We reiterate, however, that with respect to the 1968 enactment, today’s decision is concerned solely with procedural mechanisms by which tribal consent must be registered.

      The Court suggests that this dilemma is imaginary because the tribe may attach conditions to its consént. I fail to understand how the problem can be avoided in this way. When state jurisdiction is assumed pursuant to 25 U. S. C. § 1322 (a) (1964 ed., Sñpp. V),.’it is the State and not the tribe that determines the scope of the jurisdiction tó which the tribe may consent. • That section authorizes a State to assume “such measure of jurisdiction ovpr any or all such civil causes of action arising within such Indián country or any part thereof as may be determined by such State ■. . . .” ■ (Emphasis added.)