
    MISSISSIPPI FREEDOM DEMOCRATIC PARTY et al., Plaintiffs, v. Paul B. JOHNSON, Governor of Mississippi et al., Defendants.
    Civ. A. No. 4082.
    United States District Court S. D. Mississippi, Jackson Division.
    April 30, 1969.
    
      James Lewis, Armand Derfner, Lawrence Aschenbrenner, Jackson, Miss., for plaintiff.
    Martin R. McLendon, Asst. Atty. Gen., Jackson, Miss., for defendant.
    Before COLEMAN, Circuit Judge, and COX and NIXON, District Judges.
   PER CURIAM:

This is a class action, brought by the Mississippi Freedom Democratic Party and certain Negro residents of Mississippi, in which they seek to have Section Five of the Voting Rights Act of 1965 applied to Section 271 of the Mississippi Constitution, as presently written. At first, plaintiffs sought a declaration that Section 271 violates the Fourteenth and Fifteenth Amendments of the United States Constitution and the Voting Rights Act of 1965. However, at a pretrial conference held on September 22, 1967, the parties agreed that the sole issue to be submitted at this time was whether Section Five of the Voting Rights Act is applicable. Pursuant to 28 U.S.C. § 2281 and 42 U.S.C. § 1973c, a three-judge court was convened to decide this controversy.

Formerly, Section 271 of the Mississippi Constitution provided:

“The legislature may provide for the consolidation of existing counties, if a majority of the qualified electors of such counties voting at an election held for that purpose shall vote therefor.”

In 1966, the Mississippi legislature proposed an amendment to Section 271. This proposal was submitted to the voters of Mississippi and approved by them in a state-wide referendum. It became part of the Mississippi Constitution on November 23, 1966, as follows:

“The legislature may provide by a two-thirds (%) vote of the members of the House of Representatives and of the Senate for the consolidation of existing counties of the State, provided, however, that such counties combined must be adjoining.”

In view of the recent Supreme Court decision in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed. 2d 1 (1969) (March 3, 1969), we must hold that Section 271 is subject to Section Five of the Voting Rights Act; therefore the section remains subject to the strictures of Section Five until the Attorney General of Mississippi, in compliance with the Voting Rights Act, shall have submitted it to the Attorney General of the United States for his approval or seeks a declaratory judgment in the District Court for the District of Columbia that Section 271 “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”. 79 Stat. 439, 42 U.S.C. Section 1973c.

Judgment accordingly may be presented for entry.  