BILL CLINTON, GOVERNOR OF ARKANSAS, ET AL., APPELLANTS V. M.C. JEFFERS, ET AL. No. 90-394 In The Supreme Court Of The United States October Term, 1990 On Appeal From The United States District Court For The Eastern District Of Arkansas Brief For The United States As Amicus Curiae This submission responds to the Court's invitation to the Solicitor General to file a brief expressing the views of the United States. TABLE OF CONTENTS Questions Presented Statement Discussion Conclusion QUESTIONS PRESENTED 1. Whether the district court correctly held that changes in Arkansas law relating to a majority-vote requirement in general elections are to be subjected to preclearance under Section 3(c) of the Voting Rights Act of 1965, 42 U.S.C. 1973a(c), based on the determination that a series of previously enacted state majority-vote statutes violated the Fourteenth and Fifteenth Amendments. 2. Whether the district court erred in invoking its "inherent equitable power" to order the State to submit a future apportionment plan to the court and hold the plan in abeyance for 60 days, to afford the plaintiffs who challenged the old plan an opportunity to challenge the new one. STATEMENT 1. In 1989, appellees, black voters in Arkansas, filed this federal court action challenging the State of Arkansas' 1981 state-wide legislative apportionment plan under the Voting Rights Act of 1965, 42 U.S.C. 1971 et seq. The state legislature consists of a 35-member Senate and a 100-member House of Representatives. At that time, there were five House seats representing districts with black voting age population (VAP) majorities, and one majority-black VAP Senate seat. Blacks constituted 16 percent of the State's population, yet no black legislator had ever been elected from outside a majority-black VAP district. Appellees contended, among other claims, that the state apportionment plan violated Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973, by drawing Senate and House district lines in a way that resulted in black voters having "less opportunity * * * (than other voters) to participate in the political process and to elect representatives of their choice." Ibid. J.S. App. A5; see Jeffers v. Clinton, 730 F. Supp. 196, 198-201 (E.D. Ark. 1989) (three-judge court), aff'd, No. 89-2008 (Jan. 7, 1991). After a trial, the three-judge district court held in December 1989 that appellants' state-wide legislative reapportionment plan violated Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973. See Jeffers v. Clinton, 730 F. Supp. at 203-217. In February 1990, the district court remedied this violation by adopting -- with modifications -- a new apportionment plan submitted by the State Board of Apportionment. This plan created an additional seven majority-black VAP House districts and another two majority-black VAP Senate districts. See 89-2008 J.S. App. 192-228. /1/ This Court summarily affirmed on January 7, 1991. 2. In their complaint, appellees had also contended that (a) pattern of violations of the voting guarantees of the fourteenth and fifteenth amendments and statutes enacted to enforce such guarantees justifying equitable relief has occurred within the territory of Arkansas, mandating placing the State of Arkansas under pre-clearance requirements pursuant to section 3(c) of the Voting Rights Act, 42 U.S.C. Section 1973a(c). Compl. Paragraph 80; see also id. Paragraphs 1, 35-37, 82. /2/ Apart from this preclearance relief, appellees also asked the district court to (r)etain jurisdiction until (appellants have) reapportioned the State on the basis of the 1991 (sic: 1990) census and for such additional period until the Court finds that the new plan (with any revisions that the Court deems necessary) complies with the Constitution and the Voting Rights Act, that it fairly recognizes the voting strength of black citizens and that it does not perpetuate (any statutory or constitutional violations found to have been committed), and order that during such period no elections shall be held under the new plan. Compl. at 16-17 (Relief Paragraph 4). The district court deferred ruling on appellees' constitutional claims and their request for preclearance relief in the initial opinion it issued in December 1989. See J.S. App. A5; Jeffers v. Clinton, 730 F. Supp. at 199. 3. In May 1990, the district court turned to those claims, holding that "the State of Arkansas has committed a number of constitutional violations of the voting rights of black citizens." J.S. App. A5. In particular, the court determined that the "State has systematically and deliberately enacted new majority-vote requirements for municipal offices, in an effort to frustrate black political success in elections traditionally requiring only a plurality to win." Ibid. Accordingly, the court ordered a "limited preclearance remedy" under Section 3(c) of the Voting Rights Act, namely, "that any future laws, standards, or practices designed to enforce or enhance a majority-vote requirement not take effect until the preclearance process has run its course." J.S. App. A5. "In all other respects," the court denied appellees' "request for statutory preclearance under Section 3(c)." Id. at A40. The court went on, however, to direct, "not as a matter of statute, but as a matter of inherent equitable power," ibid., that the plan of apportionment for the State Legislature to be adopted by the Board of Apportionment after the 1990 census not take effect until (appellees) have had a chance to inspect it and to challenge it (before the court). Id. at A5. /3/ a. The court first rejected appellees' claim that the 1981 state apportionment plan violated the Fourteenth or Fifteenth Amendments. J.S. App. A11-A16. As the court explained: We are not persuaded that the (Board of Apportionment) was motivated by an affirmative intention to harm black voting rights. Its attitude, instead, can best be described as indifference. It took no action to enhance minority voting rights, but neither did it move in any positive way to dilute them. The result * * * was in fact to dilute them, but result is not the same as intention. Id. at A15. /4/ The court agreed, however, with appellees' constitutional challenge to the state statutes providing for majority-vote requirements in general elections for municipal and county offices. See Ark. Stat. Ann. Sections 7-5-106, 14-42-206 (1987 & Supp. 1989). /5/ The court found that (d)evotion to majority rule for local offices lay dormant as long as the plurality system produced white office-holders. But whenever black candidates used this system successfully -- and victory by a plurality has been virtually their only chance of success in at-large elections in majority-white cities -- the response was swift and certain. Laws were passed in an attempt to close off this avenue of black political victory. J.S. App. A23-A24. /6/ The court therefore concluded that (t)his series of laws represents a systematic and deliberate attempt to reduce black political opportunity. Such an attempt is plainly unconstitutional. It replaces a system in which blacks could and did succeed, with one in which they almost certainly cannot. The inference of racial motivation is inescapable. Id. at A24 (footnote omitted). /7/ b. As relief, the court held that "a limited preclearance remedy is required," since "(t)he series of majority-vote statutes passed for the purpose of suppressing black political success * * * demands strong action." J.S. App. A39, A40. The court therefore directed that any further statutes, ordinances, regulations, practices, or standards imposing or relating to a majority-vote requirement in general elections in (Arkansas) must be subjected to the preclearance process. Id. at A40. The court also "deem(ed) it appropriate to impose one further item of relief in the nature of preclearance, not as a matter of statute, but as a matter of inherent equitable power." J.S. App. A40. The court directed that "no plan of apportionment (adopted on the basis of the 1990 census) may go into effect until 60 days have lapsed from the date of its final adoption by the Board (of Apportionment)." Id. at A40-A41. The court would "retain jurisdiction, within that time period, for the purpose of entertaining any challenge by (appellees) to such plan." Id. at A41. The court noted that "such a period of vulnerability, so to speak, should work to the advantage of the State, because if the plan adopted in 1991 survives this hurdle, the chances of its being allowed to govern undisturbed until the Census of 2000, will be, as a practical matter, greatly enhanced." Ibid. DISCUSSION This Court should note probable jurisdiction. /8/ In our view, the district court erred in relying on "inherent equitable power" to fashion an extra-statutory preclearance scheme, requiring the State to hold its new plan based on the 1990 census in abeyance for 60 days while it was submitted for the approval of the private plaintiffs who had challenged the 1981 plan. The district court cited no authority for such an exercise of jurisdiction, and we are aware of none. The court's unprecedented assertion of a right -- as a matter of "inherent equitable power" -- to review state laws before they go into effect violates this Court's admonition that "appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief." Rizzo v. Goode, 423 U.S. 362, 379 (1976). With respect to the preclearance remedy ordered under Section 3(c) of the Voting Rights Act, 42 U.S.C. 1973a(c), we submit that the district court's ruling is correct. Appellants' main contention in this regard is that the district court did not notify them that it would base Section 3(c) preclearance on findings with respect to the majority-vote statutes, rather than the 1981 apportionment plan. In our view, this contention is wrong and, standing alone, does not warrant plenary review. If the Court notes probable jurisdiction in light of the lower court's ruling with respect to the extra-statutory preclearance remedy, however, it may wish to consider the case as a whole. Alternatively, in view of the district court's otherwise correct ruling regarding limited preclearance relief under Section 3(c) of the Voting Rights Act, and its erroneous imposition of an extra-statutory preclearance scheme, the judgment below could be summarily affirmed subject to a modification eliminating the latter element of relief. 1. Appellants contend that the district court erroneously ordered preclearance relief under Section 3(c) of the Voting Rights Act, 42 U.S.C. 1973a(c), because "(a) straightforward reading of (the statute) indicates that a court must find a constitutional violation in the electoral mechanism that was the subject of the 'proceeding instituted . . . to enforce the voting guarantees of the Fourteenth or Fifteenth Amendment' before it has the option of imposing preclearance." J.S. 6-7. Here, appellants point out, the district court determined that the 1981 apportionment plan -- the focus of appellees' lawsuit -- violated the Voting Rights Act but not the Constitution. Accordingly, appellants assert (J.S. 9-12) that preclearance relief based on the state majority-vote statutes found to be unconstitutional -- state laws that were not the subject of appellees' lawsuit -- exceeds the scope of Section 3(c). Appellants' position is wrong both as a matter of fact and as a matter of statutory construction. First, the record shows that the state majority-vote statutes -- along with the 1981 apportionment plan -- were subjects of appellees' voting rights action. In the complaint, appellees alleged that "Arkansas has a long history of official discrimination that touched the right of black citizens to register, to vote, and otherwise to participate in the democratic process," Compl. Paragraph 35, and that a "pattern of violations of the fourteenth and fifteenth amendments * * * has occurred within the territory of Arkansas, mandating placing the State of Arkansas under preclearance requirements pursuant to section 3(c) of the Voting Rights Act, 42 U.S.C. Section 1973a(c)," Compl. Paragraph 80. In response to appellants' interrogatories, appellees notified the State that "the discriminatory runoff requirements for primary and general elections" formed part of the basis of the request for preclearance relief under Section 3(c). Pltf. Resp. to Deft. First Set of Interr. 35, Jeffers v. Clinton, No. H-C-89-004 (E.D. Ark.) (filed June 7, 1989). Moreover, during the pretrial conference, the parties agreed that previous testimony from the Whitfield case could be introduced -- subject to objection on relevancy grounds -- to show the discriminatory motivations underlying the enactment of the majority-vote state statutes. Sept. 28, 1989, Tr. 13-20. /9/ As a result, appellees presented testimony from the Whitfield case and additional testimony relating to the background of those statutes, see VI Tr. 98-104; VII Tr. 7, 59-62 -- evidence that accounted for the district court's findings. See J.S. App. A22-A23. /10/ Second, under Section 3(c) of the Voting Rights Act, 42 U.S.C. 1973a(c), Congress has authorized federal courts to subject jurisdictions to preclearance strictures similar to those imposed automatically on other jurisdictions by Sections 4 and 5 of the Act, 42 U.S.C. 1973b and 1973c. Known as the "pocket trigger," see H.R. Rep. No. 439, 89th Cong., 1st Sess. 17 (1965), Section 3(c) addressed so-called pockets of discrimination, i.e., jurisdictions with histories of voting discrimination to which the coverage formula of Section 4 did not apply. See Brown v. Board of School Commissioners, 542 F. Supp. 1078, 1101-1102 (S.D. Ala. 1982). By its terms, Section 3(c) contains two prerequisites for preclearance relief: First, there must be a "proceeding instituted * * * under any statute to enforce the voting guarantees of the fourteenth and fifteenth amendment," 42 U.S.C. 1973a(c); and second, the court must "find() that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of (the relevant) State or subdivision," 42 U.S.C. 1973a(c). Here, as the district court correctly held, those two statutory prerequisites are met. First, appellees brought this action under the Voting Rights Act, 42 U.S.C. 1971 et seq., to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments and specifically sought preclearance relief under Section 3(c) of the Act for the State's constitutional violations. Second, the district court found on the record presented at trial -- and appellants do not dispute here -- that "violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred (in Arkansas)." 42 U.S.C. 1973a(c); see J.S. App. A23-A24. /11/ Moreover, the district court's straightforward application of the terms of Section 3(c) is consistent with Congress's understanding of the preclearance remedy. Congress intended Section 3(c) -- like the companion provision in Section 5 -- to apply to jurisdictions that find new ways to infringe individuals' voting rights after the courts have enjoined previously devised methods. As this Court has observed in the context of Section 5: Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration. South Carolina v. Katzenbach, 383 U.S. 301, 314 (1966); see id. at 335; H.R. Rep. No. 439, supra, at 8, 12. In other words, Congress likely contemplated that the constitutional violations that "have occurred" -- and hence called for the preclearance remedy -- would often not be enjoined in the same suit in which they served as the predicate for such relief. 2. Appellants also challenge (J.S. 8, 12-13) the district court's imposition of a "further item of relief in the nature of preclearance, not as a matter of statute, but as a matter of inherent equitable power," J.S. App. A40. The court ordered that the new apportionment plan that the State would adopt after the 1990 census may not go into effect until 60 days after its final adoption by the State Board of Apportionment, and retained jurisdiction to permit appellees to challenge that new plan, should they desire to do so. As the court recognized, "(t)his retention of jurisdiction is not required by Section 3(c) of the Act, but (appellees) have requested it, in the alternative, and we believe it is appropriate under the facts of this case." J.S. App. A40-A41. In disavowing the statutory preclearance remedy under Section 3(c) and relying only on "inherent equitable power," the district court has ordered the State in effect to preclear its new plan not with the Attorney General of the United States (an option under Section 3(c)), but with appellees -- the private plaintiffs who had challenged the previous plan. Appellees' lawsuit -- which did not challenge and could not have challenged the State's yet-to-be promulgated 1991 plan -- is kept alive to afford a ready-made forum should these particular individuals decide to mount a challenge when the plan eventually is promulgated. We are aware of no authority supporting such an assertion of continuing jurisdiction reaching beyond the challenge before the court. Even the court below could cite no statutory or case law authority for imposing this ad hoc preclearance requirement on the State. /12/ Congress has specified particular preclearance remedies in the Voting Rights Act. See 42 U.S.C. 1973a(c) and 1973c. That statutory structure itself further suggests that federal courts in voting rights actions should not exercise "inherent" equitable authority to impose different preclearance remedies of their own design. Indeed, in upholding the constitutionality of the statutory preclearance scheme under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, this Court recognized that the requirement of preclearance was "an uncommon exercise of congressional power," South Carolina v. Katzenbach, 383 U.S. at 334. It thus seems unlikely that the Court understood every federal district court to possess the "inherent" authority to fashion its own preclearance remedy on a finding that such action was "appropriate." J.S. App. A41. It is important to recognize that the issue is not whether the 1991 plan to be formulated by the State will cure the Section 2 violation the district court found to exist under the 1981 plan. That violation was remedied by the plan the court ordered to go into effect and under which the 1990 elections were held. This then is not a case in which the court orders the State to submit a plan to remedy an existing violation, and therefore retains jurisdiction to consider whether the proposed plan remedies the violation. That has already occurred here. Nor is this a case in which the district court found a sufficiently "real threat of future violation" to justify an injunction against such violations and retention of jurisdiction to enforce the injunction. United States v. Oregon Medical Society, 343 U.S. 326, 333 (1952). It is also important to recognize that the court's action cannot be justified by reference to the statutory preclearance remedy of Section 3(c). The court expressly ruled that this aspect of relief was imposed "not as a matter of statute," and that its "retention of jurisdiction is not required by Section 3(c) of the Act." J.S. App. A40-A41. The court specifically limited its grant of Section 3(c) preclearance relief to majority-vote requirements in general elections. /13/ In any event, the features of the preclearance required by the court with respect to the 1991 plan differ significantly from those of the statutory preclearance remedy under Section 3(c). Under the statute, the State subject to preclearance submits its proposal either to the court or to the Attorney General. 42 U.S.C. 1973a(c). Under the court's scheme, the lawsuit filed by the private plaintiffs to challenge the 1981 plan remains alive, and the State must submit its proposal to those plaintiffs to afford them "a chance to inspect it and to challenge it (before the court)." J.S. App. A5. /14/ The authority cited by appellees (Mot. to Aff. 7-11) does not support the district court's action here. In Louisiana v. United States, 380 U.S. 145 (1965), the Court did not sanction a judicial preclearance mechanism for future state laws; instead, it upheld the district court's remedial order concerning the effect of an existing test promulgated after the suit was filed. Id. at 154-155. /15/ Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), and Hecht Co. v. Bowles, 321 U.S. 321 (1944), concerned the authority of district courts to decline to issue a requested injunction. Appellees maintain that "the comprehensiveness of (the traditional equitable powers) is not to be denied or limited in the absence of a clear and valid legislative command." Mot. to Aff. 11 n.10 (quoting Romero-Barcelo, 456 U.S. at 313 (brackets in original)). The point, however, is that it is not a "traditional equitable power" in our federal system for district courts to direct States to submit proposed legislation to the court in order that the plaintiffs who challenged previous legislation can consider whether to challenge the new law, and to hold that law in abeyance while plaintiffs make up their minds. /16/ This Court has long recognized that "while 'remedial powers of an equity court must be adequate to the task, . . . they are not unlimited.'" Spallone v. United States, 110 S. Ct. 625, 632 (1990) (quoting Whitcomb v. Chavis, 403 U.S. 124, 161 (1971)). Particularly where "the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the 'special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.'" Rizzo v. Goode, 423 U.S. at 378 (quoting Steffanelli v. Minard, 342 U.S. 117, 120 (1951)). /17/ As this Court stated in Goode, "appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief." 423 U.S. at 379. Indeed, last Term this Court emphasized that "one of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions." Missouri v. Jenkins, 110 S. Ct. 1651, 1663 (1990). Giving due consideration to those principles, we do not believe that a federal court's "inherent equitable power" -- as invoked by the court below -- may be used to fashion an extra-statutory preclearance scheme for future state enactments. CONCLUSION Probable jurisdiction should be noted. In the alternative, the judgment of the district court could be summarily affirmed, subject to the modification eliminating that aspect of the judgment requiring the State to submit a future apportionment plan to the court and hold the plan in abeyance for 60 days. Respectfully submitted. KENNETH W. STARR Solicitor General JOHN R. DUNNE Assistant Attorney General JOHN G. ROBERTS, JR. Deputy Solicitor General ROGER CLEGG Deputy Assistant Attorney General MICHAEL R. LAZERWITZ Assistant to the Solicitor General JESSICA DUNSAY SILVER MIRIAM R. EISENSTEIN Attorneys FEBRUARY 1991 /1/ Chief Judge Eisele filed dissents from the district court's liability and remedial opinions. See Jeffers v. Clinton, 730 F. Supp. at 219-284; 89-2008 J.S. App. 205-228. /2/ Section 3(c) of the Voting Rights Act of 1965, 42 U.S.C. 1973a(c), provides in pertinent part: If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds 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 * * *. /3/ Chief Judge Eisele filed a dissent. See J.S. App. A41-A97. /4/ The court also reviewed -- on a county-by-county basis -- "a variety of local incidents and practices in the area of the State known as the Delta which, (appellees) say, were intended to and have had the effect of suppressing black political activity." J.S. App. A19. With the exception of Ashley County, the court found insufficient evidence of any current constitutional violation. See id. at A24-A35. In Ashley County, the court did "find that there have been constitutional violations of the right to vote." Id. at A34. /5/ The court rejected appellants' contention that "(o)ther alleged constitutional violations with respect to election laws and practices (apart from the alleged violation concerning the 1981 apportionment plan) are beside the point, because * * * they were not pleaded in the complaint." J.S. App. A16. The court found that "(a)t least since the time of the pretrial conference, * * * it has been clear that (appellees) would attempt to prove a pattern of statutory and constitutional violations of their voting rights." Ibid. The court therefore concluded that (a)ll of the issues were on the table before trial, (appellants) had a full and adequate opportunity to offer proof on them, and, if in fact the complaint is not broad enough to encompass them, the pleadings should now be deemed amended to conform with the proof. See Fed. R. Civ. P. 15(c) (sic: 15(b)). J.S. App. A16. The court also rejected the argument that Section 3(c) of the Voting Rights Act, 42 U.S.C. 1973a(c) "does not apply at all unless a violation of the Constitution is shown with respect to the very election law or practice that is the principal focus of the complaint." J.S. App. A17. The court pointed out the "phrase 'violations of the fourteenth or fifteenth amendment justifying equitable relief,' which the statute uses as the triggering condition for preclearance, is not limited at all." Ibid. /6/ The court rejected appellees' contention that "the majority-vote requirement in Arkansas was originally enacted to prevent black political success." J.S. App. A20; see Ark. Stat. Ann. Section 7-7-202 (1987). The court also rejected appellees' claim that "the general majority-vote requirement for party primaries was maintained for a discriminatory purpose." J.S. App. A21. /7/ The district court, however, did not enjoin enforcement of those statutes, because -- among other reasons -- appellees "at the oral argument at the close of the trial * * * disclaimed any desire for such relief." J.S. App. A24 n.7. /8/ Since the three-judge district court was properly convened under 42 U.S.C. 1971(g), this Court has jurisdiction over the appeal under 28 U.S.C. 1253. /9/ In Whitfield v. Democratic Party, 686 F. Supp. 1365 (E.D. Ark. 1988), plaintiffs alleged that the Arkansas majority vote requirements for primaries and general elections violated Section 2 of the Voting Rights Act. The district court dismissed on the pleadings plaintiffs' challenge to the requirement for general elections and rejected on the merits plaintiffs' challenge to the requirement for primaries. At the time of the pretrial conference in this case, Whitfield was pending before the court of appeals. After the trial here, the Eighth Circuit sitting en banc affirmed the district court's judgment in Whitfield by an equally divided court. Whitfield v. Democratic Party, 902 F.2d 15 (1990) (per curiam), petition for cert. pending, No. 90-383. This Court has invited the Solicitor General to file a brief expressing the views of the United States in the Whitfield case; that brief -- filed February 4, 1991 -- recommends that the Court deny the petition. /10/ Appellees' post-trial submission plainly showed that the constitutionality of the state majority-vote statutes was at issue in connection with the request for preclearance relief under Section 3(c). Pltf. Post-Trial D.C. Br. 90-98. Appellants argued below that "(n)othing in the complaint indicated that (appellees) were presenting a Fourteenth or Fifteenth Amendment claim based on the runoff requirement." Deft. Post-Trial D.C. Br. 35. That claim is makeweight, where, as here, the record shows that appellants -- before the trial began -- were well aware of the precise scope of appellees' voting rights action, and -- once the trial began -- had the opportunity to and did contest appellants' claims. For that reason, and contrary to appellants' assertion (J.S. 10-11), the district court's invocation of Fed. R. Civ. P. 15(b) is unexceptionable. /11/ The fact that the district court declined to award equitable relief for those constitutional violations is beside the point, since the statute speaks in terms of "violations * * * justifying equitable relief" as opposed to violations resulting in such relief. /12/ The court noted only that appellees had requested this relief in the alternative and that the 60-day "period of vulnerability" would work to the State's advantage in enhancing the likelihood that the 1991 plan would remain undisturbed if it "survives this hurdle." J.S. App. A41. In certain cases, the United States does seek continuing injunctive relief so as to permit the collection of reports and the monitoring of compliance with basic obligations under the civil rights laws. See, e.g., United States v. Chesapeake & O. Ry., 471 F.2d 582, 585 (4th Cir. 1972), cert. denied, 411 U.S. 939 (1973); United States v. West Peachtree Tenth Corp., 437 F.2d 221, 228, 230-231 (5th Cir. 1971). Here, however, the district court has intruded into core areas of state sovereignty and fashioned an ad hoc remedy in the face of a carefully calibrated remedial structure established by Congress in the Voting Rights Act. /13/ See J.S. App. A40 ("In all other respects, (appellees') request for statutory preclearance under Section 3(c) will be denied."). /14/ It is no answer to suggest that the court could have imposed a broader statutory preclearance remedy under Section 3(c) than it did to include future apportionment plans. The court quite deliberately chose not to do so, for reasons it set forth. See J.S. App. A39-A40. In addition, as noted, the court's preclearance plan was different from that specified in Section 3(c). /15/ Indeed, the Court specifically noted that the new test was not subject to challenge in the pending lawsuit, but was being challenged "in a lower court (in) a new suit." 380 U.S. at 155 n.17. /16/ For that reason, appellees err (Mot. to Aff. 7-8) in relying on the Senate Report's reference to "tradition equitable powers." See S. Rep. No. 417, 97th Cong., 2d Sess. 31 (1982). We agree with appellees (Mot. to Aff. 9-10), however, that appellants are mistaken in suggesting (J.S. 12) that the issue turns on whether the prior challenge was based on a statutory or constitutional violation. Although the district court here invalidated the 1981 plan on statutory rather than constitutional grounds, we do not see any basis for the court's purported inherent authority to fashion an ad hoc, extra-statutory pre-clearance scheme on the basis of a past violation of either statutory law or the Constitution. /17/ Goode rejected what this Court described as the "novel claim" that "(t)he scope of federal equity power * * * should be extended to the fashioning of prophylactic procedures" to prevent the recurrence of past unlawful acts by the State. 423 U.S. at 378. That seems to us a fair description of the extra-statutory preclearance remedy fashioned as a matter of equitable power by the court below.