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STATE BOARD ELECTION COMMISSIONERS ET AL. v. EVERS ET AL.

decided: March 27, 1972.

STATE BOARD OF ELECTION COMMISSIONERS ET AL
v.
EVERS ET AL.



Reported below: 327 F.Supp. 640.

[ 405 U.S. Page 1001]

Appeal from D.C. S. D. Miss. dismissed for failure to docket case within time prescribed by Rule 13 (1).

MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, concurring.

I join the Court's dismissal of this appeal for failure to docket within the prescribed time. I do so despite the fact that the Court apparently has not consistently enforced the provisions of its Rule 13 (1) and, on occasion, has permitted appeals despite untimely docketing. See, for example, another Mississippi voting rights case, Whitley v. Williams, one of the cases decided with Allen v. State Board of Elections, 393 U.S. 544 (1969). Compare Johnson v. Florida, 391 U.S. 596, 598n (1968), and United Public Workers v. Mitchell, 330 U.S. 75, 84-86 (1947), with Pittsburgh Towing Co. v. Mississippi Valley Barge Line Co., 385 U.S. 32 (1966); Landry v. Boyle, 393 U.S. 220 (1968); Shapiro v. Doe, 396 U.S. 488 (1970); Stein v. Luken, 396 U.S. 555 (1970); and United States v. Cotton, 397 U.S. 45 (1970).

 Because I do not wish this disposition of the case to provide a basis for any inference that I, as one member of this Court, am in agreement with the reasoning set forth in the per curiam opinion of the three-judge District Court, 327 F.Supp. 640 (SD Miss. 1971), I append this comment.

Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 84 Stat. 315, 42 U. S. C. ยง 1973c, first provides that a State, upon proposing an alteration of voting qualifications and procedures of the kind specified, may institute an action for an approving declaratory

[ 405 U.S. Page 1002]

     judgment in the United States District Court for the District of Columbia. It then goes on as follows:

" 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. . . ."

In the present case, the changes in Mississippi's election laws effected by the legislature in 1970 were submitted to the Attorney General of the United States on July 23, 1970. In September the Mississippi Attorney General received a letter from the Assistant Attorney General of the Civil Rights Division of the Department of Justice reading in part as follows:

"The problem posed by these enactments is extremely complex. . . .

". . . We have been unable to reach the conclusion that the projected effect would be to deprive Negro voters of rights under the Voting Rights Act.

"Under these circumstances, the Attorney General is not prepared at this time -- 60 days after receipt of these statutes -- to make any determination of the validity or invalidity of Acts 362 and 363 under the Voting Rights Act. . . . Should our ...


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