Oden v. Brittain

Oscar W. Adams, Jr., Jack Greenberg, James M. Nabrit III, and Norman C. Amaker, on the application.

Mr. Justice BLACK, Circuit Justice.

This is an application presented to me as a Circuit Justice for an injunction to prevent the City of Anniston, Alabama, from holding a local election on September 2, 1969-merely a few days from now-to select five members of a newly formed city council in accordance with a state law which authorizes Anniston to change from a commission to a council-manager form of government. See City Manager Act of 1953, Ala. Code App. § 1124 et seq. (1958).

The applicants, all Negro citizens of Anniston, claim that the election, if held, would violate the terms of § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed., Supp. I), which provides that certain Southern States or political subdivisions thereof may not make any change in the procedure of elections in effect as of November 1, 1964, unless the change is either (1) submitted to the United States Attorney General in Washington for review and he does not object, or (2) submitted to the United States District Court for the District of Columbia that after a hearing permits the change to be made. This procedure is of course a highly unusual departure from the basic rights of local citizens to govern their own affairs. In this case all Anniston is preparing to do is to change from a three-member commission, elected at large, to a five-member council, also elected at large.

Last Term this Court decided, over my dissent, a case which lends considerable support to the applicants' request that no election be held until officials in Washington approve it. See Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). Even were I to accept the majority's view in that case, I do not feel that decision necessarily controls the present situation which presents many material factual differences. More importantly I remain firmly convinced that the Constitution forbids this unwarranted and discriminatory intervention by the Federal Government in state and local affairs. See South Carolina v. Katzenbach, 383 U.S. 301, 355-362, 86 S.Ct. 803, 832-835, 15 L.Ed.2d 769 (1966) (opinion of Black, J.).