# Appendix — Beer v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0215%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 425 U.S. 130 ## Text en Supreme Court, Uy. S. J. | , a flLep Volume I DEC 16 jo7%4 | MICHAI curn | a Se CLERK | IN THE Supreme Court of the United States Octeszx TERM, 1973 No. 73-1889 Perer H. Beer, PHiuip C. Ciaccio, JosepH V. Dios, CLARENCE QO. Dupuy, JR., JoHN D. LAMBERT, JR., AND JAMES A. MorEAU, Members of the Council of the City of New Orleans, Acting For and On Behalf of the City of New Orleans, Appellants V. UNITED STATES OF AMERICA and Wiu1AM B. Saxse, Attorney General of the United States, Individually and in His Official Capacity, and JOHNNY JACKSON, JR., Ev AL., Appellees Appeal from the United States District Court for the District of Columbia DOCKETED JUNE 13, 1974 PROBABLE JURISDICTION NOTED OCTOBER 15, 1974 a TABLE OF CONTENTS Page IN 005 a ooh eS a ee ede been eaueus 2 Complaint for Declaratory Judgment under Voting Pe Zee cccndckennedn bees bentesenesnnnees 8 Answer of the United States of America ............ 35 Motion to Intervene as Defendants ................. 40 ee i ecenkebeebabeens 53 BES GE TITS a 6c ck cccuctescccccdtdcescecs 54 Transcript of Proceedings ..............eeeeesecees 28 Witnesses: ah, Ce. ctceceiunsenbeeeéeteeesont 91 St Ge ME 5. . oo ndnugesssnetaweenewe 358 SE ns casuntecinceeeehoeeenbes 395 SD ah, MD ovveeanseseceesences eas 324 Sn MT) 7 * Ill. Srarement 6. The existing districting arrangement of the city council pursuant to Section 3-103(1) is grossly mal- apportioned having wide population variances between districts resulting in dilution of voting strength of persons in under-represented districts. According to the 1970 census, each councilmaniec district should ideally represent 118,694 persons, but under said section the councilmanic districts according to the 1970 census have the following populations and deviations from the ideal: District A—134,613; +13.41% District B—108,769; — 8.36% District C—100,811; —15.06% District D—114,367; — 3.64% District E—134,911; +13.66%. 7. The city council has attempted on two occasions to effect racially discriminatory plans of redistricting. On each occasion the Attorney General of the United States. Pursuant to Section 5 of the Voting Rights Act of 1965, invalidated the plan by entering an objection grounded on the fact that the plans would have the purpose and effect of denying or abridging the right to vote on account of race. 8. The first plan, city council Ordinance 4796 M.C.S. was objected to by the Attorney General on January 15, 1973, who stated correctly in his letter of objection that: Our analysis shows that the district boundary lines in the submitted plan are drawn in a manner which 46 appears to dilute black voting strength by combining a number of black voters with a larger number of white voters in each of the five districts. Moreover, it does not appear that the district lines are drawn as they are because of any compelling governmental need and they do not reflect numeric population configura- tions of district compactness or regularity of shape. Y. City council Ordinance 4796 M.S.C. was not a good faith effort to redistrict in accordance with constitutional guidelines and the city charter, but was, as characterized by the March 4, 1972 New Orleans States-Item editorial, a ‘‘reapportionment joke’’, 10. In spite of the clear mandate from the Attorney General that racially discriminatory redistricting would be unacceptable under Section 5 of the Voting Rights Act of 1965, the second plan of the city council, city council Ordinance 5154 M.C.S. incorporated the same type of defects which had prompted the Attorney General to object to the first plan. 11. Accordingly on July 9, 1973 the Attorney General entered his objection to city council Ordinance 5154 M.C.S. stating correctly in his letter of objection that: Our analysis shows that the boundary lines pre- scribed by Ordinance 5154, M.C.S. appear to effect a dilution of black voting strength in the same manner as did the boundary lines prescribed in Ordinance 4796, M.C.S., to which an objection was interposed on behalf of the Attorney General on January 15, 1973. While we recognize that there are significant dif- ferences between the reapportionment plans proposed in Ordinance Numbers 4796 and 5154, especially to the noncontiguous districts and the population by race of proposed District B, Ordinance 5154, M.C.S., nevertheless combines a number of black voters with a larger number of white voters in four of the five districts. 47 Moreover, the district lines in the instant sub- mission do not appear to have been based on any com- pelling governmental need or to reflect numeric population configurations or considerations of district compactness or regularity of shape. Uur evaluation of Ordinance Numbers 4796 and 5154 indicates that the objectionable dilution of black voting strength in both redistricting plans is primarily attributable to the vertical shape of the submitted districts. Because the predominantly black neighbor- hoods in the city are located generally in an east- west progression, the vertical districts in the sub- mitted plans divided the black neighborhoods and combined them with white areas in the north and south of the city, resulting in districts with more white than black voters. Although the shape of the submitted districts have been in part based upon the shape of the 17 wards in New Orleans, the wards do not of themselves define official boundaries bearing upon the election of or representation by City Council members, and ad- herence to the traditional shape of the wards may not serve to justify the resulting prohibited dilution of black voting strength under Section 5. We do not mean by this analysis to imply that other reapportionment plans based upon vertical dis- tricts will necessarily divide the black neighborhoods in the city to the degree found objectionable here. We have determined, however, that a dilutive result similar to that found in the submitted plan is difficult to avoid when such districts are utilized to the extent found in the submitted plan and that the extent to which such districts were utilized is not necessary to achieve a successful reapportionment of the city’s population. 48 12. City council Ordinance 4796 M.S.C. was not a good faith effort to redistrict in accordance with constitutional guidelines and the city charter, but was but another at- tempt to deprive black citizens of New Orleans of their right to an unfettered franchise and all voters of New Orleans of their right to clect the city council members under a constitutionally sufficient plan of apportionment. 13. In both ordinances, the city council has purpose- fully attempted to effect ‘‘slot machine’’ racial gerry- mandering by constituting the districts in a vertical north to south, river to lake configuration, which, given the well- known racial residential patterns running east to west, would have the inevitable, predictable and fully anticipated effect of diluting the voting strength of black citizens of New Orleans. 14. The city council attempted to effect these two plans in spite of the fact that numerous black leaders testified before the city council outlining in minute detail the racially discriminatory nature of said plans and that the city council had before it a number of alternate plans. 15. Section 3-103(3) of the Charter of the City of New Orleans prescribes a ‘‘mandatory duty’’ upon the city council to redistrict itself within six months of the official publication of the United States decennial census and further provides that if the council fails to perform this mandatory duty, ‘‘the members of the Council shall not receive any further salaries until the Council shall have adopted such ordinance ... and the Director of Finance shall not issue checks for such salaries for said periods.’’ The actions and omissions of the city council and its individual members in failing to make a good faith effort to redistrict themselves in keeping with the constitutional one man, one vote mandate, the constitutional and federal statutory prohibition against racially discriminatory delineation of electoral districts, and the mandate of their own charter has resulted in the city council being without 49 a valid plan and without the prospect of devising a valid plan and the election process scheduled to begin in ap- proximately one month. Unless this Court immediately appoints a special master to receive suggested redistricting plans and devise a plan which conforms to the one man, one vote mandate and the prohibition against racial dis- crimination and specifically avoids the racially diserimi- natory vertical arrangement of districts, plaintiffs and their class will be effectively denied the right to vote by virtue of being denied the right to elect members of the city council at the regularly scheduled elections under a constitutionally sufficient plan of apportionment. LV. ViouwatTion or Law 16. The present apportionment of the city council pro- vided by Section 3-103(1) of the city charter dilutes the relative strength of the class of voters residing in under- represented councilmanic districts to such an extent as to violate the rights of plaintiffs and other voters similarly situated under the equal protection clause of the Four- teenth Amendment. Seconp Count 17. As more fully set out above, the actions and omis- sions of the city council and its individual members in failing to devise in good faith a constitutionally sufficient non-discriminatory plan of apportionment have deprived and continue to deprive plaintiffs and the class and sub- class they represent of their rights secured by the Four- teenth and Fifteenth Amendments to the Constitution of the United States. Tuirp Count 18. As more fully set out above, the actions of the city council and its individual members in failing to devise in good faith a constitutionally sufficient non-discriminatory 50 plan of apportionment within six months of the publication of the 1970 Census have deprived plaintiffs and their class of rights secured by the Charter of the City of New Orleans. The Court has pendent jurisdiction over this cause of action. V. Eeurtry 19. There is a real and actual controversy between the parties as described herein. Plaintiffs have no adequate remedy at law. Plaintiffs are suffering and stand to suffer irreparable injury as a result of the apportionment chal- lenged herein and the failure of defendants the city coun- cil and its members to effect a constitutionally sufficient plan of redistricting, and that injury will continue and be- come hopelessly irreparable unless enjoined by this Court. VI. Cotor or Law 20. All of the acts alleged in this complaint to have been done by defendants were done under color of law of the State of Louisiana and under color of the defendants’ re- spective offices as officers or agents of the State. VII. Prayer For Revrer 21. Wuererore, plaintiffs respectfully pray, a) That this Court immediately appoint a special master pursuant to Rule 53 of the Federal Rules of Civil Pro- cedure and direct said master to receive suggested plans of apportionment and expeditiously devise a plan of re- districting for the Council of the City of New Orleans which complies with the one man, one vote mandate, avoids racial discrimination and specifically avoids those racially dis- criminatory features found objectionable by the Attorney General of the United States, in prior plans of the city council invalidated under Section 5 of the Voting Rights Act of 1965. ol Plaintiffs suggest that the Court appoint one of the following exceptionally qualified persons to serve as special master: Dr. Jewel L. Prestage Professor of Political Science Southern University, Baton Rouge, Louisiana Visiting Professor of Political Science, Louisiana State University in New Orleans Mr. Peter W. Dangerfield President, Metro Consulting and Research 4224 South Claiborne Avenue New Orleans, Louisiana b) That defendants the City of New Orleans and Maurice Landrieu, Mayor of the City of New Orleans, be enjoined from paying and that defendants the individual members of the Council of the City of New Orleans be enjoined from receiving any further salaries of the city council members until and unless the city council adopts a good faith con- stitutionally sufficient plan of apportionment. c) That defendants be ordered to place into escrow the salaries of the members of the city council to secure pay- ment of compensation to the special master, plaintiffs’ ex- penses, and reasonable attorney’s fees in this litigation. d) That the Court issue a declaratory judgment that the apportionment of the city council under Section 3-103(1) is unconstitutional and violative of the constitutional rights of plaintiffs and others similarly situated, pursuant to 28 U.S.C. 2201. e) That the Court issue preliminary and permanent in- junctions restraining defendants from further implement- ing Section 3-103 of the city charter. f) That the Court issue preliminary and permanent in- junctions requiring defendants to implement a plan of re- aw Ve districting which is racially non-discriminatory and con- forms to the equal protection clause of the Fourteenth Amendment. g) That the Court award plaintiffs their court costs, expenses, and reasonable attorney’s fees. h) Plaintiffs further pray for such additional relief as is just and equitable. tespectfully submitted, STANLEY A. Hatpin, Jr. Kipp, Katz & Haupin Cuaries E. Corton Cotton, JONES & FAzANDE CuHarLes WILLIAMS Eric SCHNAPPER Jack GREENBERG James Nasrit III Attorneys for Plaintiffs by Stanuey A. Hatpry, Jr. Stanley A. Halpin, Jr. Trial Attorney Of Counsel: Davin J. Dennis 1110 Royal Street New Orleans, Louisiana Datep: July 12, 1973 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Civil Action No. 1495-73 [Caption Omitted] Points And Authorities Petitioners seek to intervene in the instant action to in- sure that their interests as described in the motion to in- tervene are adequately protected. It has previously been held that such an intervention is proper. City of Peters- burg, Virgmia v. United States, 354 F. Supp. 1021 (U.S. D.C, Dist. Col. 1972); City of Richmond vy. United States, U.S. D.C. Dist. Col., Civil Action No. 1718-72. WHEREFORE petitioners pray that their motion be granted. Respectfully submitted, STANLEY A. Hatprn, Jr. Kipp, Katz & Hauprn Cares FE. Corton Cotton, JONES & FaZANDE JACK GREENBERG James M. Nasnirt, III Eric SCHNAPPER Cuartes FE, Wiiuiams, III Witey Branton Attorneys for Plaintiffs by /s/ James M. Nasrirt, III James M. Nabrit, III 4 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Civil Action No. 1495-73 [Caption Omitted] Answer of Intervenors 1. Intervenors admit the allegations of paragraph ‘*1”’ of the complaint. 2. Intervenors admit the allegations of paragraph ‘‘2”’ of the complaint. 3. Intervenors admit the allegations of paragraph ‘‘3”’ of the complaint. 4. Intervenors admit the allegations of paragraph ‘‘4”’ of the complaint. ). Intervenors admit the allegations of paragraph ‘‘5”’ of the complaint. 6. Intervenors are without information sufficient to form a belief as to the truth of the allegations of para- graph ‘‘6’’ of the complaint. 7. Intervenors admit the allegations of paragraph ‘‘7”’ of the complaint. 8. Intervenors admit the allegations of paragraph ‘‘8”’ of the complaint. 9. Intervenors admit the allegations of paragraph ‘‘9”’ of the complaint, except that they are without information sufficient to form a belief as to the truth of the allegation that it was not mathematically possible to redistrict the Council by wards. 10. Intervenors admit the allegations of paragraph ‘**10”’ of the complaint. 11. Intervenors admit the allegations of paragraph ‘*11”’ of the complaint. oo 12. Intervenors deny the allegations of paragraph **12”’ of the complaint. 13. Intervenors admit the allegations of paragraph 13’’ of the complaint. 14. Intervenors admit the allegations of paragraph ‘*14”’ of the complaint. 15. Intervenors admit the allegations of psragraph **15”’ of the complaint. 16. Intervenors are without sufficient information to form a belief as to the truth of the allegations of paragraph **16”’ of the complaint. 17. Intervenors admit the allegations of paragraph ‘*17’’ of the complaint. 18. Intervenors admit the allegations of paragraph **18”’ of the complaint. 19. Intervenors deny the allegations of the first sen- tence of paragraph ‘‘19’’ of the complaint. Intervenors are without sufficient information to form a belief as to the truth of the other allegations of paragraph ‘‘19”’ of the complaint. 20. Intervenors admit the allegations of paragraph ‘*20’’ of the complaint. 21. Intervenors admit the allegations of paragraph ‘*21”’ of the complaint. 22. Intervenors admit the allegations of paragraph ‘*22’’ of the complaint. 23. Intervenors deny the allegation of paragraph ‘‘23”’ of the complaint that an effort was made to devise a work- able, responsible and equitable plan, and are without infor- mation sufficient to form a belief as to the truth of the other allegations of the complaint. 06 24. Intervenors deny the allegations of paragraph ‘*24”’ of the complaint. 25. Intervenors admit the allegations of paragraph **25”’ of the complaint. 26. Intervenors deny the allegations of paragraph ‘*26” of the complaint that decision of the Attorney Gen- eral to disapprove Ordinance 5154 M.C.S. was without a full and fair appraisal of all relevant information. Inter- venors admit the other allegations paragraph ‘‘26”’ of the complaint. 27. Intervenors deny the allegations of paragraph **27”’ of the complaint. 28. Each of the plans enacted by the City Council of New Orleans was enacted with the purpose and effect of preventing the election of any black members of the council and preserving in office the white incumbents by diluting the votes of black voters by placing those voters in districts where they will be outnumbered by white voters. 29. In the year and one half since the 1970 census data became available, plaintiffs have persistently failed to enact a plan acceptable under the Voting Rights Act and the United States Constitution because of their desire to assure their reelection by racial gerrymandering, to prevent the election of black councilmen, and to dilute the votes of black voters. Plaintiffs have obstinately refused to enact such a plan in the further hope that this delay would pre- cipitate a crisis which would compel the Justice Department or the .ourts to approve elections in 1973 under an invalid and unconstitutional redistricting plan. 30. There is now pending in the United States District Court for the Eastern District of New Orleans an action brought by intervenors to compel the enactment of a redis- tricting plan to be approved by that court. Jackson v. Council of City of New Orleans, No. 73-1862. On August 4, 1973, Judge Boyle appointed a special master to draw 57 up such a plan. Elections can and will be held under such court approved plan in an orderly and fair manner without the necessity of any intervention by this Court. 31. In view of the proceedings in Jackson v. Council of City of New Orleans, there is no need or justification for this Court to decide precipitously and without time for detailed consideration of the complex issues raised by the instant case. To do so would be to reward plaintiffs for their delay in filing the instant action, and would encourage other jurisdictions subject to the Voting Rights Act to delay, by a serious of inadequate proposals or otherwise, commencing litigation in this Court until the eleventh hour in the hope of precipitating a hurried decision allowing them to change their election laws despite the timely and carefully considered disapproval of the Department of Justice. Re.pectfully submitted, STantey A. Hap, Jr. Kipp, Katz & Hatpin Crates E. Corron Corton, Jones & FazanvDE JACK GREENBERG James M. Nasrit, III Eric SCHNAPPER Cuares E. WiiuiaMs, III Wney Branton Attorneys for Plaintiffs by /s/ James M. Nasairt, III James M. Nabrit, III [Certificate of Service Omitted] 58 TRANSCRIPT OF PROCEEDINGS Courtroom No. 1 U.S. Court House Washington, D.C. Thursday, August 9, 1973 The above-entitled matter came on for hearing in open court at 10:00 o’clock a.m. Before: Honorable Spottswood W. Robinson, IIT, USCA., Honorable Howard F. Corcoran, USDC., Honorable Joseph C. Waddy, USDC. * 7 * . > * . * . * [3] The Deputy Clerk: Civil Action 1495-73, Peter H. Beer, et al., versus the United States of America, et al. Mr. Stoner, Mr. Treese, Mr. Arata, and Mr. Salatich for the plaintiffs. Mr. Gorman, Mr. Shurtliff, and Mr. Friends for the defendants. Mr. Halpin, Mr. Williams and Mr. Cotton for the intervenors. Judge Robinson: It would be helpful to the Court if at the outset counsel would identify themselves for the in- formation of the Court and also for the benefit of the record. Mr. Stoner: Thank you, Your Honor. May it please the Court, my name is James R. Stoner. I am appearing here as counsel for the plaintiffs. With me is my partner, James R. Treese, who is also appearing for the plaintiffs. Also with us is the City Attorney of New Orleans, Mr. Blake G. Arata, and the Assistant City Attorney for the City of New Orleans, Mr. Ernest Salatich. I would move at this time that Mr. Arata and Mr. Sala- tich be admitted as members of this bar for the purpose of this case. Judge Robinson: That motion will be granted. Thank you very much, Mr. Stoner. Representing the United States? 59 Mr. Shurtliff: May it please the Court, Carl Shurtliff. With me at counsel table is Walter Gorman who will be [4] joined shortly by Nathaniel Friends. Judge Robinson: Thank you very much. Representing the applicants for intervention? Mr. Halpin: Stanley Halpin representing the movers for the defendant, the intervenor-defendants. With me is Mr. Charles Cotton ard Mr. Charles Williams. I am a a member of the D.C. Bar but don’t maintain an office ad- dress here. I would ask for purposes of this proceeding that Mr. Cotton and Mr. Williams be allowed to proceed for this case only. Judge Robinson: That motion will be granted. Judge Waddy: Do you have a local address, sir? Mr. Halpin: We have one member, one counsel, as local counsel, Mr. Wiley Branton, who does appear on the papers and who would be responsible. Judge Waddy: Mr. Branton is not here at the present time? Mr. Halpin: Mr. Branton is not here right at this mo- ment. If it would be necessary, I could have him come down. Judge Waddy: His name does appear on the paper? Mr. Halpin: Yes, sir. Judge Robinson: Your motion, Mr. Halpin, for the ad- mission of your colleagues will be held in abeyance until the Court has made a ruling on the question of whether intervention will be allowed. In the event the intervention is allowed, the motion respecting counsel will be granted. (5) Mr. Halpin: Thank you. Judge Robinson: Gentlemen, at the outset we would like to take up the question of intervention. The application for intervention was filed on yesterday. The Court received it this morning. We have noted that it was personally served on the original parties to the case on yesterday. Is there any objection to the granting of that motion? Mr. Stoner: Your Honor, it would be our position, we have no objection to the intervention for the purpose of 60 argument of the issues. We, however, do not know what position they would be taking with respect to the issues which have been raised in the Complaint, and we believe that the purposes of their intervention—we would have no objection to their intervention for the purpose of argument of the case to the Court. We believe that if they were to be allowed to intervene for all purposes, that is, the cross- examination of witnesses and the offering of evidence, it may unduly prolong the hearing on the case. Judge Robinson: Let me inquire of Mr. Halpin. Is there a proposed complaint in the intervention? Mr. Halpin: Yes, a proposed answer in intervention. Judge Robinson: Is it attached? Oh, yes. Very well. Did you want to respond to the statement just made to the Court by Mr. Stoner? Mr. Halpin: Yes, sir. We would like to intervene [6] not only for the purposes of argument but for all purposes in this matter, for these reasons: The individuals who we represent are the named plaintiffs also in the New Orleans case, Jackson vs. the Council of the City of New Orleans which has recently appointed a special master to draft the plan for the City Council in the event that this Court finds, as the Justice Department did, that the plan is racially discriminatory. Also, that has been accepted with- out objection in New Orleans as an adequate class action. We feel that we represent interests of black people in New Orleans and are more familiar with the particular nuances and so on of this case, so that, one, it would be extremely useful to the Court and protective of our party’s rights to be available to cross-examine and to examine on direct witnesses. Further, we do have only one additional witness that we would call, and that would be Mr. Jackson. We do not intend to prolong the proceedings in any way, and I can give the Court my personal assurance that we will do nothing to delay the proceedings. Further, | would point out that we will be proposing as a defense a legal theory which will require certain types 61 of questions to be put to the witness and certain types of evidence, which the Department of Justice may not—I am not sure exactly what their approach is, but it is not clear that [7] they will present that type of evidence from a live witness. Judge Robinson: Now, the issue or issues that your clients would desire to address would differ in what way, if any, from the issues already raised Mr. Halpin: All right. Well Judge Robinson: —by the complaint and by the Gov- ernment’s answer? Mr. Halpin: Well, the issue that we will raise, which I think has been raised to some extent and is of a nature in the proceedings, is that the plan of the City Council before the Court must be determined as not racially dis- criminatory either in purpose or effect. What we would argue is that the burden is also upon the City Council to prove that the two at large seats on the City Council are also not racially discriminatory in purpose or effect in order for them to carry their burden of proof. It is not entirely clear-‘rom the Justice Department’s memo- randum and so forth and pleadings in this case whether they are going to take that position and whether they are going to take it aggressively, and we would take that position aggressively. We feel that under United States versus Georgia, a voting change is a voting change, and since there has been a redistricting and a re-change, the question is directly before the Court as to whether or not the plaintiffs, that is, the City Council, can prove to the Court that these at large elections for the two seats on the City [8] Council are not racially discriminatory, and we would propose that point very aggressively. Judge Robinson: Am I correct in my understanding that except for that, your clients would propose to address themselves only to matters that are within the existing issues? Mr. Halpin: Yes, Your Honor. 62 Judge Robinson: Very well. Let me inquire of Mr. Shurt- iff, what is the Government’s position, because in going over the papers I was not clear either as to whether or not the issue with reference to the two at large council- men as distinguished from those elected, the five from the districts, are in issue here. Mr. Shurtliff: It is our position, Your Honor, that the issue of the two at large seats may be reached by this Court Judge Robinson: May? Mr. Shurtliff: May be considered by this Cour: but that it is really not necessary to get to that issue. The issue, we believe, can be resolved on the question of whether or not the districting plan of the five district councilmen had the purpose or effect of discriminating on the basis of race, and that that issue can fairly easily be resolved and that it would not be necessary to get to the question of the impact of the two at large members. Judge Robinson: If it turns out that you are incorrect [9] on that estimate, we would have to reach the question of the two councilmen at large; would we not? Mr. Shurtliff: That’s correct. Judge Waddy: Mr. Stoner, what you are arguing is that you have no objection to the applicants for inter- vention to come in as amicus curiae, but you are opposing the intervention; aren’t you? Mr. Stoner: I guess, Your Honor, that would be the effect. Let me say at this point that we do not believe that the at large seats are at issue before the Court, for the reason that this is a charter of the City of New Orleans. It is at issue. It has been in effect since 1954. Now, that charter specifically calls for five election dis- tricts and two at large seats. The history of the charter of New Orleans as set out in the complaint will show that there have been two elections held within the past year on the subject matter of changing the charter of the City of New Orleans. The first proposal was that the charter be changed so as to expand the council from a seven-man 63 body to an 11-man body with nine district councilmen and two at large. That matter was submitted to the voters of New Orleans and was defeated by the electorates. Following that, a proposal was made that the City Coun- cil be expanded from its present seven-man body to a nine- man body, consisting of seven district councilmen and two [10] at large councilmen. That matter was submitted to the electorate in an election held this year and was de- feated. So that the matter before the Court is the council as it presently exists; I mean by that the number of council districts, namely five councilmanic districts and two at large. That is the law of the City of New Orleans. The electorate on two occasions has turned down a pro- posal that the City Council be otherwise constituted. We would submit that the question of the at large election of two councilmen is not at issue before this Court. The only issue before the Court is whether or not the five council districts as proposed in Plan No. 2 which is submitted to this Court for approval discriminates in violation of the Voting Rights Act of 1965. Judge Waddy: Would it be appropriate, however, for the Court to consider the two at large seats on the council in connection with the overall plan for redistricting? Mr. Storer: Your Honor, I do not think it would, because I think in effect that the Court then would be considering —would in effect be rewriting the City Charter of the City of New Orleans. Judge Waddy: If we are to determine the effect of the redistricting, don’t we have to determine it in connection with the entire package that will result after the redistrict- ing? [11] Mr. Stoner: I think you do, Your Honor. I think the Court does. But I do submit that the City Council as constituted by the City Charter is the matter which must be considered by this Court, and that is the five council- manic districts and the two at large. I do not think that hey this Court can be asked by any party to rewrite the City Charter of the City of New Orleans. Judge Robinson: I gather from the papers I have read and from what you have just said that there is nothing in the redistricting which is now before the Court that would affect in anywise boundaries or anything else that would concern the election of the two councilmen at large? Mr. Stoner: That is correct, because the boundaries or the two councilmen at large are the city limits of the City of New Orleans, and the boundaries we are dealing with here are the boundaries of the five councilmanie districts. Judge Robinson: The applicants for intervention, how- ever, want to intervene not simply in an amicus curiae role but to intervene to achieve party status, not only for the purpose of litigating the issues with reference to the coun- cilmen that are already before the Court, with the state- ment having been made by counsel for the applicants so as to justify what the applicants expect to seek in this litigation. Do you have a position now with reference to the [12] motion to intervene in the true sense, not in the amicus sense? Mr. Stoner: We have no objection to the intervention of these parties. We think all the facts should be before this Court. We do, however, differ with the intervenors on the question of the two at large. Now, as I understand the statement Judge Robinson: Perhaps I can save you a little effort. It seems to me that unless there is objection to the inter- vention—and if there is objection, of course, the Court would have to rule on it—we would permit the intervention and we would decide later just what the scope of the issues in this case might be. It is clear enough to me that the applicants at least want to participate in the litigation of issues that are framed for decision by the Court. Now, with that in mind, is there any objection to the granting of the motion? 65 Mr. Stoner: I would submit, Your Honor, that it would be the plaintiffs’ position that we would have no objection on that basis. But may I consult with counsel Judge Robinson: Certainly. Mr. Stoner: —sitting at counsel table? (Whereupon, plaintiffs’ counsel confer. , Mr. Stoner: The position is as I have just stated. We would have no objection. Judge Robinson: Very well. [13] Mr. Shurtliff, does the United States have a position on this? Mr. Shurtliff: We would have no objection to the inter- vention with full rights. Judge Robinson: Very well. The Court is now prepared to grant the motion to intervene subject to the limitation that I mentioned a bit earlier. Intervention will be granted. The scope of the issues, however, not only for the purpose of the intervenors but also for the purpose of other parties, is a matter which the Court at a later time will undertake to define. Also, as the Court indicated earlier, the granting of this motion will be accompanied by a grant of the motion to permit the participation of Mr. Williams and Mr. Cotton as co-counsel for the intervenors in this case. Now, gentlemen, is there anything else? Judge Waddy: And leave to file the answer which is attached to the motion will be granted. Is there anything else now in connection with the motion to intervene? The next matter that the Court would like to take up is the question of just what sort of presentation counsel have in mind making. In going over the papers we under- stand that the plaintiffs and the defendants—and from the statement [14] made by Mr. Ilalpin, | gather to perhaps a more limited extent, the intervenors—all contemplate the introduction of evidence. It certainly would be helpful to the Court if you gentlemen would define for our edifica- 66 tion just what your expectations are in that particular regard, particularly with reference to the amount of time you think those presentations are going to take. Perhaps it would be helpful if I stated that the Court has great concern stemming from the fact that it is its understanding that it is desiring to set a date sometime later this month by which candidates for office in the City of New Orleans are to qualify. Today, of course, is August Ith. We do not know as to whether indeed it will be pos- sible to litigate this question and reach a decision by the date that counsel for the plaintiffs desire a decision of the Court. Quite obviously, this is going to be affected by the nature of the presentations the parties have in mind. Mr. Stoner, could you tell us what the expectations of the plaintiffs are? Mr. Stoner: Yes, sir. May it please the Court, counsel for the plaintiffs and the Government have been mindful of the length of time that could be involved in this kind of litigation, and we have agreed to stipulate to many of the facts which we think could be helpful in saving the Court’s time. For instance, the large map which you see exhibited here [15] is a map that has been stipulated and shows the distribution of white and black population in the City of New Orleans as of 1970 census. Counsel for the Government and Plaintiffs have stipulated that this ‘an be admitted for that purpose without formal proof. Likewise, we will submit a map showing the distribution of white and black voters in the City of New Orleans by registration, and that will include figures, registration fig- ures as of June 1973. That is just two months ago, and it has been updated by the research staff of the City of New Orleans. Likewise, that map will be stipulated by the parties as to geographically showing the distribution of lack and white voters. In addition to that, the Government has requested a number of stipulations as to some of the other plans that have been offered by other parties as to other matters that on behalf of the plaintiffs I would like to present to 67 the Court; that we will stipulate wherever we can to the evidence so as to save the Court some time. Judge Robinson: Aside from stipulations, as you view the matter now, Mr. Stoner, what do you think the time re- quirements for the plaintiffs’ presentation will be? Mr. Stoner: Your Honor, | think for the most part we could offer all our evidence today. Judge Waddy: We are not talking about arguments. We [16] are talking about presentation of evidence plus ar- guments. Mr. Stoner: I would think that the case should be able to be tried today and tomorrow from both our standpoints. Judge Waddy: How many live witnesses do you antici- pate? Mr. Stoner: We intend to call at least one member of the City Council and possibly two members of the City Council Planning Staff and possibly a third. So, as of the present time we would expect five witnesses. Judge Robinson: Very well, Mr. Stoner. Mr. Shurtliff, what are your expectations? Mr. Shurtliff: May it please the Court, depending on how successful we are stipulating to some of the exhibits that we have proposed, we would anticipate calling four witnesses who would be rather short, we expect, and also extensive cross-examination of some of the—extensive in terms of an hour or so, I would expect, on two of the witnesses offered by the plaintiffs in the case. | would agree with Mr. Stoner that in all likelihood the case could easily be tried today and tomorrow, especially if we were able to resolve a couple of minor disagreements on four of the prepared exhibits that we have prepared. Judge Robinson: And if you do not make this resolution? Mr. Shurtliff: [ would anticipate it may take 20 minutes of the Court’s time for us to put someone on to explain [17] the method by which those exhibits were prepared. Judge Robinson: How long do you think it will take to resolve it? Less than 20 minutes? Mr. Shurtliff: 1 would hope so. 68 Judge Robinson: Very weil. Mr. Halpin? Mr. Halpin: Your Honor, we would generally also be willing to stipulate where we can. We intend at this time to call only one witness. But since we are in a defendant’s position, of course, if we see that it is necessary for re- buttal testimony, other witnesses might be appropriate. But my anticipation at this time is a single short witness. Judge Robinson: And your estimation of the amount of time it will take for that, sir? Mr. Halpin: I would say 20 minutes to half an hour for examination and cross-examination. Judge Robinson: Very well. So much for the evidentiary presentations. , Gentlemen, how about other needs in connection with this case, legal argument and that sort of thing? I recog- nize that it may be somewhat difficult to make estimates at this time, until the evidence has been presented. The Court, in an effort to facilitate this litigation as much as possible, did call on counsel for some preliminary statements of legal positions prior to its sitting today. After the evidence has been taken and the case has been sub- [18] mitted to the Court, the needs for presentation of written argument, perhaps also all argument, may ob- viously be quite different. What are your feelings in that regard, Mr. Stoner? Mr. Stoner: Your Honor, with that accepted position of the Court, I would think that closing argument, a half to three-quarters of an hour, possibly an hour in closing argument, depending on the extent of the evidence. | Judge Robinson: Do you expect to file any sort of legal brief in this case? Mr. Stoner: As of this moment, we would not. But it may develop as the testimony comes in that, yes, we would. Judge Robinson: Very well. Mr. Shurtliff, Mr. Shurtliff: Your Honor, I would think that most of the evidence will be in the form of maps, statistics, mat- ters of that sort, testimony of witnesses, | really don’t 69 believe that oral argument would need be very extensive, if at all necessary. Judge Robinson: How about written briefs? Mr. Shurtliff: I would think, if the Court please, that a written brief might well be the best way to set out the positions of the parties. Judge Robinson: And your estimate of time demands in that respect? Mr. Shurtliff: I really couldn’t estimate. We could [19] do it rather rapidly as we did at your request for the pre- trial memorandum. Of course, it would take more effort, but hopefully it will not take much longer if the Court directs. Judge Robinson: Mr. Halpin? Mr. Halpin: I expect that our oral argument will be brief, and assuming that the other issues are covered by the Department, will be specifically directed to the question of the two at large districts. I anticipate at this time that I will be able on that oral argument to cover our legal arguments in that respect without the necessity of a written brief. But should we file a written brief, we can certainly file it within any time allowed for the Department to file theirs. Judge Robinson: Very well, gentlemen. This is a very important case. Speaking simply for myself and irrespec- tive of the present plans of counsel, I may in all probability request counsel to file written briefs. The importance of the litigation, the apparent complexities of the case, to say nothing of the unexpected which cannot be gaugea at this present time, would all seem to indicate that written sub- missions of that character may very well be in order. I do not know whether my colleagues want to express them- selves on that or not. (Whereupon, the Court confers. ) Judge Robinson: Our present feeling, gentlemen, is that we will be sensitive to a need for briefs and also proposed findings of fact and conclusions of law from you gentlemen. 70 [20] I announce that at this time for whatever bearing it may have on the question of timing, that we have under consideration. I would like to address this question to all parties. Quite obviously, with this litigation being filed on July 25th and the matter having been set for hearing today, there has been no opportunity for depositions or interrogations or any other discovery process up to the present time. Do counsel feel that if an opportunity of that sort were available it would facilitate the presentations not only from the Court’s viewpoint but also from counsel’s view- point? Mr. Stoner? Mr. Stoner: Your Honor, I might represent to the Court that by stipulation of parties, depositions of the three members of the Council Research Staff were taken in New Orleans last Friday Judge Robinson: Is that right? Mr. Stoner: —upon notice that the case was set down for hearing. We stipulated, and my partner, Mr. Treese and I, and Mr. Shurtliff, went to New Orleans last week and started to prepare our case, and depositions were taken. I don’t believe that any further pre-trial would be necessary from your standpoint. . Judge Robinson: Are the depositions transcribed? Are they available now? Mr. Stoner: They sir, Your Honor. Yes, they are. [21] Judge Robinson: And the witnesses deposed, Mr. Stoner, again were whom? Mr. Stoner: There were three members of the Council Research Staff, the Director and two of his assistants. Judge Robinson: That is a group, as I understand, that did the planning with reference to the redistricting that is now before the Court? Mr. Stoner: That’s right. They did the statistical work and the preparation of several plans and several alterna- tive plans. They are all three here in the courtroom, and we will offer them as witnesses. But their depositions have 71 been taken and the Government does know the extent of their knowledge and testimony. Judge Waddy: Do you plan to have live witnesses to explain the various maps and diagrams that you say you have here in addition to the five that you have mentioned? Mr. Stoner: No, I think these five would be used for that purpose. Judge Waddy: They would be used for that purpose? Mr. Stoner: Yes, sir, Your Honor. Judge Robinson: Very well, Mr. Shurtliff. Mr. Shurtliff: Depositions were taken and they are trans- cribed. However, they were taken for the purposes of dis- covery. We did not get into the question with those three witnesses whether or not they could be introduced for evi- dentiary [22] purposes.-It is my judgment that if we could introduce those exhibits—the depositions taken of the three Research Staff members—that it would limit there- fore the necessity for in-depth examination when they do appear, and it would be time-saving in that respect. Judge Robinson: The depositions were taken at whose instance? Mr. Shurtliff: The Government’s, Your Honor. I would think if we could get some of the information in through the depositions, it would not be necessary for us to set out the methods in particular as to how the plans were arrived at. There is quite a bit of background material that sets the stage, but Judge Robinson: Have you discussed this aspect of the matter of this possibility with other counsel? Mr. Shurtliff: We have not, Your Honor. One other matter. On the time element and so forth, we have pro- posed four exhibits which we have discussed briefly with counsel for the plaintiffs, and they have some reservations about stipulating to their use at this time. If it became necessary for us to put on supporting testimony or to add to those exhibits, it would take us some time in those respects. We believe that it would have us considerable 72 effort if we can arrive at a stipulation as to the those four exhibits. Judge Robinson: Now, how soon could you let us know [23] in that regard? Mr. Shurtliff: As to whether or not—— Judge Robinson: As to whether a stipulation can be reached. Judge Waddy: In other words, if we took a brief recess, could counsel get together within a reasonable time here and advise the Court fully as to what they have stipulated to? Mr. Stoner: May I be heard on this, Your Honors? Judge Waddy: Yes. Mr. Stoner: Counsel for the Government has requested that 22 exhibits be stipulated to. Now, we have agreed to stipulate to all of these except four. The four that we have not agreed to, we don’t feel, are really competent evidence. For example, one is a portion of an ad that appeared in one of the New Orleans’ newspapers. It was an ad that was placed there by the City of New Orleans announcing the election, but it does not include the whole ad. It only includes a portion of the ad. We think the Court should have the entire ad to really assess the import. Judge Waddy: Do you have the balance of it? Mr. Stoner: We do not, Your Honor; we do not. Now, we objected to the admission of part of the ad. We say the whole ad should be admitted. Then there is also a letter from one of the councilmen [24] who voted against this plan. Incidentally, the plan before the Court as set out in the complaint was a six to one vote. There is a letter by one of the councilmen which we don’t think is appropriate. I understand that the coun- cilman is here in the City of Washington, and any evidence that he should have to present, we think he should do it live, In addressing ourselves to the question of the use of the depositions for other than discovery purposes, we 73 think it is unfair to the Court when the witnesses are here to use those depositions for evidentiary purposes. In other words, we have brought those witnesses here so that the Court can see them in person and assess the testimony which we will adduce. We believe it is unfair to the Court to rule on this issue without seeing the witnesses who will be giving substantially statistical facts to the Court. Judge Robinson: I think that probably the Court may be of some assistance to counsel, if you will indulge me. (Whereupon, the Court confers. ) Judge Robinson: Gentlemen, we are going to take a recess to enable counsel to see whether they ean finalize the possibilities of stipulations and other procedures that may have a tendency to shorten this presentation. I want to impress on counsel that the only reason for suggesting that counsel do that so as to shorten this matter is not only the reason that ordinarily contributes to judicial econ- omy but also because we [25] simply have this dreadful time problem that I mentioned before. The Court has tried to cooperate as far as it can and, of course, it will expect counsel to do the same thing. Now, before we take this recess, I would like to ask Mr. Stoner just a couple of questions, and I am asking these only out of an abundance of precaution. If the case were ready for submission to the Court now, [ would have no idea as to whether the Court could get its decision out in time to enable the setting of a qualifi- cation date later this month or indeed anytime soon. What will be the consequence to the people of New Orleans if delay in that regard is unavoidable? I would like you also to tell me just how this matter has been handled since the point—when was it? In 1971—when the City Council first began to work on the matter of redistrict- ing with respect to elections other than the referendums that were had in two instances? In other words, have there been instances where the problem of elections in New Or- 74 leans of some kind or another have had to be handled? If so, how were they handled, Mr. Stoner? Mr. Stoner: May it please the Court, I understand that the present law—maybe Mr: Arata or Mr. Salatich can help me—but I understand that the present law requires the setting of a time late in August of 1973 for qualification for the November election. Now [26] Judge Robinson: Oh, in August you simply set an- other time instead of setting a time which is the time for qualification in August? Mr. Stoner: No, no. The time is set in August, in the latter part of August, 1973, for qualification. Now, this would require notice to the electorate as to the last date for qualifying for the primary election. Judge Robinson: And the latest possible date in that regard would be what? Mr. Stoner: If the Court will indulge me one second. Mr. Salatich, can you answer that question? Mr. Salatich: It would be approximately sometime in the iatter days of January, Your Honor. There is a latitude in there, a few days. Mr. Stoner. Of August. Mr. Salatich: August. Judge Waddy: Give us the earliest date and the latest date. Mr. Salatich: If my memory serves me correctly, it would be about September Ist, August 26th; somewhere in that interval. August 27th to September Ist. About a three-day interval in that connection. Mr. Halpin: If I might— Judge Robinson: Just a moment. We will indulge you in just a bit. 27] All right. Now, what happens if we can’t make that date? Mr. Stoner: I believe that—if the Court will indulge me. (Whereupon, Mr. Stoner and Mr. Salatich confer.) 75 Mr. Stoner: I am informed, Your Honors, that the Court could set other dates for the qualification but Judge Robinson: Which Court? Mr. Stoner :—the Novembe: election Judge Robinson: Which Court? Mr. Stoner: Presumably this Court, Your Honor, in view of the pendency of this matter. The present status of the matter is that an election cannot be held now unless this Court approves this plan. Judge Robinson: Has there been any elections other than the two referendums since the matter of redistricting was embarked upon by the Council? Mr. Stoner: Yes, I believe there was a national election that was held last November and—— Judge Robinson: Was it affected by the problem that is presented by this litigation? Mr. Stoner: It was not, Your Honor. This is redistricted to the local elections in the City of New Orleans. Judge Robinson: In other words, unless the election con- cerns voting to put in office five members of the Council (28; from the five electoral districts in New Orleans, you do not have this problem; is that the answer to it? Mr. Stoner: That’s correct, that’s correct. It is redis- tricted just to the five councilmanic districts. Well, really I guess it is the five councilmaniec districts and the two at large of the City of New Orleans. So, it is merely a local issue. Judge Waddy: Is the November date set by ordinance or statute or has that been an ad hoc date? Mr. Stoner: No, that’s been set by the statute of the State of Louisiana. Judge Waddy: And if you could not proceed with that election in November, when would the next one be? Next November or when? Mr. Stoner: Well, I am sure there is machinery for the establishment of Judge Waddy: For a special election? Mr. Sioner: For a special election. 76 May we consult just one moment? Judge Robinson: Well, why don’t we afford counsel this opportunity in the recess that I mentioned before. I know that you gentlemen are as aware as we are that the need to postpone elections, sometimes even to enjoin elections, has appeared in some of the litigation with reference to Section 5 problems. The purpose of this explanation, of course, was to [29] size up the problem in this case. Gentlemen, how much time do you think you would need to accomplish these several purposes? Mr. Stoner: Minutes. Judge Robinson: How long a recess do we need to take? Mr. Halpin, I must apologize. | said a few minutes ago that the Court would recognize you in due course. Can this be held until after? Mr. Halpin: I simply wanted to say for the Court’s benefit that my knowledge on this is that the District Court in New Orleans has considered this problem also relative to moving the qualification date back. When the Louisiana legislature was redistricted by a special master appointed by the Federal Court recently, the qualifying date had been moved back in that instance, and I think there would be no problem to either this Court or that Court moving the qualification date without disturbing the election. Judge Robinson: Gentlemen, we will take a recess. Since it isn’t quite certain as to just what amount of time you gentlemen will need, suppose we take a recess until further order of the Court. When you gentlemen have exhausted the possibilities of stipulating and the possibilities of any- thing else that may facilitate the presentation of your respective positions in this case, would you notify the Marshal, and as promptly thereafter as may be possible the Court will then [30] reconvene. With that the Court will stand in recess until further order. (Whereupon, the Court then, at 10:55 o’clock a.m., stood in recess until 11:30 o’clock a.m., at which time it recon- vened. ) 77 (During the recess, the fcllowing exhibits were marked for identification: Plaintiff’s Exhibits 1, 2 and 3; De- fendant’s Exhibits 1 through 16, 18, and 21 through 24.) Judge Robinson: Very well. Is there anything further that you would want to report to the Court on the events occurring during recess? Mr. Stoner: I can report to the Court that we have discussed the request for various stipulations and we will be able to deal with them. I believe we have made some headway and we have to resolve some misunderstanding between counsel, and we have made some headway that should have the effect of shortening the offer of the evidence. Judge Robinson: And during the course of this trial there, of course, will be continuing opportunity for counsel to cooperate in this regard. Mr. Stoner: Yes. Judge Robinson: Thank you very much, Mr. Stoner. Do other counsel wish to report anything to the Court [31] at this time? Mr. Halpin? Mr. Halpin: I would like to respond briefly to what Mr. Stoner had indicated relative to the Court’s power and so forth and state our position on that. I think it is beyond question that the Court does have power to enjoin the elections. A similar court did so in the City of Petersburg, and there is no question that that could be done. Our interest Judge Robinson: Well, in Petersburg and in other cases too. Mr. Halpin: Yes, sir, in any number of cases. I can cite the Court to a number of District Court decisions in Louisiana which have done that also. As a practical matter, what we would like to point out to the Court is that in Louisiana the incumbents, of course, are all white. Many of the black candidates will be running for the City Council perhaps for the first time with the 78 realistic chance of being able to win. We are very opposed to having a short period of campaigning. We think if the Court is going to consider delaying part of the election process, they should delay all of it. That is, there is no reason why the Court couldn’t allow the other municipal elections to go under way at the regularly scheduled time and move hack not only the qualifying period but also the elections for City Councilmen, so that [32] the class that we represent will have an equal opportunity to presert their campaign to the voters as do the incumbents who are well-known by virtue of their incumbency. Judge Robinson: Gentlemen, thank you very much. As I think is well attested to by what has happened up to the present time, the Court is expending every effort to accommodate the exigencies of time associated with the New Orieans situation. The matter was raised with counsel this morning because, quite obviously, the question is just how much maybe possible, and we felt some enlightenment might be helpful to us at this time. We will continue to do everything that we can to expedite the resolution of this litigation. If it becomes apparent to the Court that it cannot be done by the end of this month—and the possibility of that, of course, is quite great—in all probability we will be dis- cussing details with counsel again at a later time. I will also say for the information of counsel and the parties that during the recess period we succeeded in clear- ing out today and tomorrow for the purposes of the evi- dentiary presentations based upon the estimate of counsel that it could be done within this space of time. It is the hope of the Court that it can be done within this space of time, because the members of the Court have dreadful problems if it becomes necessary to extend this trial be- yond tomorrow. We will proceed then with the taking of evidence, unless [33] there is some other preliminary matter. Do counsel desire the rule on witnesses? 79 Mr. Stoner: We do not. Mr. Shurtliff: We do not, Your Honor. Judge Robinson: Mr. Halpin? Mr. Halpin: No. Judge Robinson: Do you desire to make opening state- ments? We are fairly familiar with the case and so far as the Court is concerned, they may be dispensed with unless you gentlemen want to make them. Mr. Stoner: Your Honor, I would prefer a short open- ing statement. Judge Robinson: Very well. All right, Mr. Stoner, you may proceed. Mr. Stoner: I will assure the Court I will keep it as short as possible. OPENING STATEMENT BY Mr. STONER. Mr. Stoner: The case before the Court is an action brought under Section 5 of the Voting Rights Act of 1965 as it is commonly referred to. In this case the Council of the City of New Orleans, acting for and on behalf of the City of New Orleans, has brought an action to declare the second plan which it has adopted of redistricting a valid plan for the redistricting of the City of New Orleans for purposes of the election of the Council of the City of New Orleans. [34] We have present with us in the courtroom five of the six plaintiffs, all of whom are members of the City Council, and I should like to just briefly introduce them to the Court at this time. Mr. Peter H. Beer, Mr. Philip Ciaccio, Mr. Joseph DiRosa, Mr. John Lambert, and Mr. James A. Moreau. [ might say that Mr. DiRosa and Mr. Moreau are the two councilmen who have been elected at large. The other three persons are representatives of districts in the City of New Orleans. Under the Charter of the City of New Orleans, it is mandatory that the City Council redistrict itself every 10 80 years. This is a Charter provision that was adopted in 1954 and has been in existence since. it requires the City Council to redistrict itself following each decennial census of the United States Census Bureau. Judge Robinson: The Charter itself is a creature of the citizens of New Orleans, or does the legislature or any other political subdivision of the State of Louisiana play a part in that? Somehow I though—I understood that this was a Charter framed by the citizens of New Orleans for the citizens of New Orleans. Do I have the right impression? Mr. Arata: That’s right, but it is also protected by our constitution. Judge Robinson: Legislative approval or executive ap- proval is not necessary to any amendments of the Charter? [35] Mr. Arata: For any amendment of the Charter we need a vote of all the people. Judge Robinson: But you do not have to go beyond the citizenry of the City of New Orleans? Mr. Arata: That’s correct. Judge Robinson: Very well. Thank you. Mr. Stoner: Now, the Charter itself, to state again, makes it mandatory that the Council redistrict itself every 10 years. This is founded in purpose, namely, that as popula- tion changes occur in the City, the districts should be drawn so as to retiect the changes in population trends in the various districts of the City. Following the submission of the 1970 census information, the City Council adopted a plan to redistrict the City. There was a great political feeling in the City that the size of the City Council should be increased. So, the City Council adopted a proposal to increase the number of representatives on the City Council. I shall not go through all the details but will point out to the Covrt’s attention that the first proposal that was submitted to the voters called for the increase of the size of the City Council from its seven-man membership to 11. This was submitted to the voters and an election was held on November 7, 1972, and that proposal was defeated by the electorate. 81 Following that, another proposal to increase the size [36] of the City Council was adopted by the City Council and submitted to the electorate. A special election was held on March 20, 1973, at which time that proposal was pre- sented to the voters. This proposal called for an increase of the City Council from its present seven members to a nine-member council. Again the electorate defeated this proposal. So, the issue before this Court is the redistricting of a seven-member City Council as provided in the Charter of the City and as affirmed—apparently as affirmed by the voters in two elections since the 1970 decennial census in- formation has become available. Of the seven members of the Council, two run at large; five run in districts. The districting of those five districts is the issue which this Court must address. Now, I have displayed here several maps. The large map—and I might say to the Court that these maps, it has been agreed between counsel that they will be stipulated as being accurate and may be admitted into evidence, and I will offer them in evidence at a later time. But the large map portrays the City of New Orleans and portrays the distribution of the white and the black population. Each orange dot represents 100 black popula- tion. The information from which this map has been prepared is based on the 1970 decennial population information. Now, I should like to point out on this map several [37] weographic peculiarities of the City of New Orleans so that all of us might become familiar with the geography and some of the natural boundaries. I will point out first the line between Jefferson Parish and Orleans Parish. This is a line separating the City of New Orleans from Jefferson Parish. So, we are involved only with the area to the right of that line. We have here the natural geographic boundary, the Mississippi River, which you will note curves quite mark- edly through the City and goes on. We have here the 82 natural boundary of Lake Pontchartrain in the boundary, which follows this line and goes on. I understand that this airport which you see portrayed here is in fact built out into the lake, and the natural boundary of the lake is on the lower side of the airport as portrayed there. Now, in addition to this, the map does not show the entire City because there is a leg of land that extends out here along Lake Pontchartrain and along the intercoastal water- way, which is a body of water, and I believe the line of that is roughly this. There is a leg of land that extends out some distance between Lake Pontchartrain and the intercoastal waterway. I am informed that this is a very sparsely populated area. I mean by that the extended por- tion of the City, the leg of the City is sparsely populated, and indeed, as you can see from the map itself, even the center part of this area is [38] very sparsely populated. This area of the City is known as New Orleans East or East New Orleans, and I mean by that this City here. This area of the City here which borders the lake is known as the Lake area. There is another very important geographic distinction that I would like to call to the Court’s attention, and that is the area which is across the river, across the Mississippi River from the downtown area of the City of New Orleans. It is a part of the City and it is known as Algiers. This area here across the Mississippi River from this area ex- tends along the river and is part of the City of New Orleans. This again here is the line dividing Orleans Parish from St. Bernard Parish, so that the City line is this black line. This is the Mississippi River. This is the area of Algiers, which is part of the City of New Orleans that is across the river from the rest of the City. Judge Robinson: Would you mind pointing out where the one bridge between Algiers and downtown New Orleans is? Mr. Stoner: Yes, Your Honor. The bridge, I am informed, is about in this area, approximately here. It is on sort of the edge of Algiers. 83 Judge Robinson: I gather that that is not the only bridge but it is the only bridge between Algiers and downtown; is that correct? [39] Mr. Stoner: You are right, Your Honor. In fact, it is the only bridge in the City of New Orleans. There is a bridge Judge Robinson: There is no other bridge between Al- giers and New Orleans, only tlie one bridge? Mr. Stoner: And the main downtown City? Yes, Your Honor, that’s right. Judge Robinson: No, no, not downtown. Any other place in New Orleans? Mr. Stoner: Between Algiers and Judge Robinson: Any part of New Orleans. Mr. Stoner: There is only one bridge. Judge Robinson: Thank you. Mr. Stoner: There is only one bridge. There is a bridge across the Mississippi considerably up river in Jefferson Parish, but the only bridge between Algiers and the rest of New Orleans is about here. It is one bridge and one bridge only. Judge Robinson: Now, Algiers at the present time, that is, under the plan under consideration, is now part of the Third District; right? Mr. Stoner: Under the plan as submitted, and I might—— Judge Robinson: District C, as I recall. Mr. Stoner: I might refer to this map [40] Judge Robinson: Yes, I see. Mr. Stoner: —which is Exhibit H to the Complaint. Un- der that plan, the Algiers area is in District C, and is included in the district directly across the river from it. Judge Robinson: Is that one district also, in District C? Mr. Stoner: The one bridge? Judge Robinson: The one bridge. Mr. Stoner: It is very close to the line, I believe, yes. I see the gentlemen nodding their head. I believe the bridge is very close to the line between Algiers and District C. 84 There is also a ferry, I understand, approximately in the same position as the bridge that commonly runs be- tween Algiers and this area of the City. It might be more descriptive on this map to say the other bridge is considerably up river from the bridge which presently exists here to Algiers. Now, as I said, having oriented ourselves geographically, I would like to point out the natural boundaries of the City again, namely, the Lake, the Mississippi River itself, the intercoastal waterway here, the leg of the City extend- ing out there know as East New Orleans, and Algiers which is in this area. The evidence will show that Algiers is a growing area and that there has been great controversy and great pres- sure for [41] another bridge across the river. I would like at this time to interject and say that the present plan of districting in the City of New Orleans, that is, the plan that has been in existence since 1961, includes Algiers as part of District A, which is this district here, and there has been a great controversy between, the evidence will show, the population of Algiers and the population of District A as to the location of a bridge. In fact, this matter has not ben resolved through years of controversy. As I stated earlier, this map portrays the distribution of the black and the white population of the City of New Orleans, the orange being the black and the green repre- senting white voters, each dot representing 100 population in each case. You will note that the black population is scattered throughout the City and, indeed, in many respects it would appear that the City is an integrated city. There is black population in East New Orleans, along Lake Pont- chartrain Park Area, in these areas. I believe that’s Ward 7. There is black population out here in 17 interspersed with considerable white population. There is a concentra- tiun of black population in this area, which I believe on this exhibit portrays itself as proposed council District B. 85 There is also considerable black population in this area of the City and in this area and across, indeed, in Algiers there is considerable black population. [42] So that the popuiation of the City is not concentrated in a core area or in a, if I may use the phrase, ghetto area, but rather is it spread out throughout many areas of the City and indeed practically every area of the City, with the possible exception of this leg of land between the City Park and Lake Pontchartrain here; that doesn’t appear to have any black population. But otherwise, the black population is indeed spread throughomt-the City. Now, I would call to the Court’s attention what has been marked as Plaintiffs’ Exhibit 3, which is an exhibit too tu the Complaint. It is Exhibit H. I believe that the Court has copies of this exhibit. This is a map of the City which portrays the plan that is before the Court for consideration, and you will see the five councilmanic districts, the City divided into five councilmanic districts: District A, District B, District C, which is on both sides of the City Park and runs to the lake and extends over to include the entire Algiers area. You will see District D as being an area here where I am pointing to, and District FE including all of East New Urleans and portrayed on this map apparently in this area. These are the five councilmaniec districts that the City Charter calls for as portrayed by the present plan which is before the Court for consideration. Now, the evidence will show that prior plans that had [43] been submitted, prior public controversy, prior public debate had centered around Algiers. The people of Algiers felt that they had a common interest with one another and therefore should, as a group, be located, be blocked in one councilmanic district. The first pian which had been ap- proved had cut Algiers into three districts, and there was great objection to the cutting of that area of the City into three councilmanic districts. There had been also proposed plans, I believe, that would cut Algiers in two, but the City Council felt that this being 86 an overriding issue, namely, the bridge issue, the trans- portation issue, and the transportation from Algiers to the rest of the City being a vital issue, it was important that Algiers as a body, the people of Algiers as a body should be included in one councilmanie district rather than split among other councilmanie districts. Now, the other map, which is underneath—I will ask the Court’s indulgence just a moment here—is a map that has been stipulated to by the parties, and it has been nrepared from current voter registration lists as of June of 1973. In other words, the information on this map is only two months old. It is current information. In this map each brown dot represents 50 black regis- tered voters. Each green dot represents 50 white registered voters. [44] I would cali to the Court’s attention again the dis- persal of the voters throughout the City of New Orleans into the various councilmanic districts as proposed in the plan. Again, we do not nave a case of the voters all being bunched but rather geographically the registered voters, just as in the population case, are extended throughout the City. I believe the evidence will also show that among the black population there is a large percentage of young people, and I mean by that people under 18 years of age. This would tend to explain what might appear to be a little disparagy between the population map and the voter registration map. So that while this map represents popu- lation, many of the people included in these figures would be under 18 years of age and thus not eligible to vote. On the other hand, this map represents those who are 18 years of age and in fact have registered to vote. Now, the request of this City Council is this: After three years following the ’70 decennial census—I belive the evi- dence will show the in.ormation regarding the decennial census was made available about August or September, the first information, of 1970. So, for three years this City has not redistricted itself as required by the City Charter. 87 The Council of the City is charged with the responsidility of redistricting the City. The evidence will show that with respect to the [45] vari- ous plans, public hearings were held both in the daytime and at night, at which time parties had an opportunity to come forward and to present their views as to the district- ing of the City. The City Council has adopted the plan which is represented on this map and which has been at- tached to the Complaint. It believes that this is a fair and equitable plan and complies 100 per cent with Section 5 of the Voting Rights Act of 1965. We submit that this is a plan that should be approved by this Court as being a viable plan. I would call the Court’s attention to the fact that we are dealing with a plan which really will be only used for a period of seven years because in 1980, by the Charter of the City of New Orleans, again the City Council as it then exists will be required to redistrict itself. So, we are dealing here with a plan which will in fact, looking into the future, be used for the 1974 election. Incidentally, the election will be held in March of ’74 for these councilmanic districts. So, we are dealing here with a plan that will be used in 1974 and again in 1978, and prior to the 1982 elec- tion the City Council, by its Charter, will be required to redistrict itself to then reflect changes in the pollution that occurred during the next seven years. So, the plan that being submitted here and which the Court is being to approve is a plan that will be used [46] for two elections, and in 1982 the City will be required to redistrict itself again. The evidence will show that this is a fair and equitable plan to the voters of New Orleans and does not deprive anyone of his right to vote or dilute his vote by reason of color or creed. Judge Robinson: Very well, Mr. Stoner. Mr. Shurtliff, would the Government desire to make an opening statement at this time? Mr. Shurtliff: Not at this time, Your Honor. 88 Judge Robinson: Very well. Mr. Halpin? Mr. Halpin: Mr. Cotton will make an opening statement, Your Honor. Mr. Cotton: I would like at this time to make an opening statement. Judge Robinson: Very well, Mr. Cotton. Mr. Cotton: As previously claimed, Your Honor, we rep- resent a class of black persons, black people in Louisiana, which comprises 46 per cent of the black population. As the evidence will show, there has never been a black person on the City Council. In fact, the present City Council is all white. The evidence will further show that because of the racial complexion of the City Council, black people have [47] suf- fered tremendously in the amount of city service, municipal service. The evidence will further show that the two at large seats which we as defendant intervenors—is in fact a quota for white candidates. The evidence will show that it is very difficult for a black person to legitimately run for these two at large seats and to publicly claim a black constituency and at the same time successfully prevail in an election in the City of New Orleans. I would like to at this point pay deference to counsel and show that in the City of New Orleans there is in fact pockets of black persons along the river, in this area (in- dicating). The evidence will further show that the present incum- bent city councilmen all live in close proximity to each other, and the first plan and the second plan were guaran- teed that they would retain their positions on the City Council. We intend to prove that throughout the history of elee- toral polities in the City of New Orleans, racism has always been a predominating factor up until this point. We intend to prove that because of the discrimination in voting in electoral politics in the City of New Orleans, that there is 89 a residual effect upon the black voting population in the City of New Orleans, so much so that unless this Court takes into account the two at large seats, it will be at least a decade or better [48] before a black person can legiti- mately and successfully compete for those positions. We intend to show that the present City Council drafted two plans; that there was adequate time to come up with a plan suitable to meet the guidelines of the Voters Rights Act, and that the present City Council, for reasons and purposes which will later come out in the evidence, did two things: They guaranteed themselves re-election and at the same time purposely, purposely came out with a plan that had the effect of diluting the black vote. We intend to show that unless seven single member dis- tricts are included within the reapportionment plan, black people in the City of New Orleans will at best be confined to five positions and, if the present plan is adopted, only one position, which is questionable. We intend to show finally that this Court does have the equitable powers to, one, enjoin the elections, and to come up with a plan that is equitable for all parties, both black and white, in City of New Orleans. Again I say, we represent 46 per cent of the black popu- lace in the City of New Orleans. Black people have been denied legitimate entrance into electoral politics in the City Government in the City of New Orleans. We will show, unless this Court takes significant action, that that trend wilt continue for the next decade. [49] Judge Waddy: Do I understand you to say that this Court must come up with a plan for the redistricting? Mr. Cotton: No. Your Honor. I said that unless this Court takes some action—— Judge Waddy: I thought you said a few minutes ago that this Court had to come up with a plan. Mr. Cotton: If I did, Your Honor Judge Waddy: I was wondering, what was your authority for that. 90 Mr. Cotton: If I did, Your Honor, I was in error. Judge Waddy: All right. Mr. Cotton: Unless this Court takes some action with regard to the plan under consideration, black persons will suffer in the City of New Orleans for the next decade. Judge Robinson: Very well, Mr. Cotton. Mr. Stoner, you may proceed with the evidence. Mr. Stoner: I would like to call as the first witness of the plaintiffs, Councilman Beer of the City of New Orleans. May it please the Court, the Plaintiff would like to re- quest the rule on witnesses, if we might. I previously said that it would not be necessary, but we have been asked to change that. We will change that. Judge Robinson: Very well. All witnesses in the case— - Marshal, can you accommodate the witnesses? [50] The Marshal: Yes, sir. Judge Robinson: Will you do so before administering the oath. The Marshal: Yes, sir. The Deputy Clerk: All witnesses who expect to testify in this case, please follow the marshal to the witness room until called; all witnesses on both sides. Mr. Shurtliff: May it please the Court,—— Judge Robinson: Mr. Shurtliff. Mr. Shurtliff: We have a young man who has prepared many of the exhibits for us purely in a technical sense. He is not a resident of New Orleans and not interested in the matter at all. It might be necessary for him to testify. But in the meantime, he would be helpful to us in keeping up with the exhibits. Judge Robinson: Would you ‘Jentify him for the record? Mr. Shurtliff: Mr. Tolmach. Judge Robinson: @nd your request is that he be per- mitted to remain in the courtroom? Mr. Shurtliff: That’s correct. Judge Robinson: Is there objection? Mr. Stoner: We have no objection to that. 91 Mr. Halpin: Your Honor, the only witness that we in- tended to call was Mr. Johnny Jackson, who is the plaintiff, [51] and—— Judge Robinson: He is a party. Mr. Halpin: Who is a party, and we would like Judge Robinson: He may remain. All right, gentlemen. Mr. Stoner: No objection. Judge Robinson: All right. The clerk may administer the oath. Whereupon, Peter H. Beer, one of the plaintiffs herein, was called as a witness in his own behalf, and, having been first duly sworn, was exam- ined and testified as follows: Mr. Stoner: May it please the Court, before questioning Mr. Beer, I would like to move at this time the admission into evidence of all the exhibits that have been attached to the Complaint. This is done in view of the stipulation that has been entered by the parties. I would also move that the population map which I have referred to in my opening statement and also the voter registration map which I have referred to in my opening statement be admitted in evidence. This too is done with the stipulation of counsel. Judge Robinson: Very well. Those exhibits will be re- ceived. However, Mr. Stoner, I think it would be helpful for purposes of the transcript if you identify each of these exhibits you refer to. You have referred to three maps. You have [52] referred to exhibits attached to the Com- plaint. Judge Waddy: They should be marked. Judge Robinson: Let’s have them marked and give them numbers which will be points of reference for the remainder of this trial. Is that agreeable? Mr. Stoner: Yes. Judge Robinson: Al! right. Which one do you want? Do you have any particular order that you want? 92 Mr. Stoner: I have none. I would have started with Number 1, Exhibit A to the Complaint and go through those and then pick these up. I believe numbers have al- ready been put on these three exhibits. Judge Waddy: Mrs. Kelly, do you have marks on those? The Deputy Clerk: Yes, sir, Plaintiffs’ No. 1 and No. 2 and No. 3. Judge Waddy: Now, there are other documents that you are now offering in evidence besides these three? Mr. Stoner: Yes. The other documents will be Exhibits A through, I believe it is, G, that are attached to the Com- plaint. This Exhibit 3 is Exhibit H to the Complaint. Judge Robinson: You simply want the numbers to follow consecutively with reference to all exhibits attached to the Complaint, except what now appears as Exhibit No. 2, I take it, is the small map? Mr. Stoner: No. 3. [53] Judge Waddy: Let Mr. Stoner find in the Complaint those that he wants marked. Mr. Stoner: For the record, Exhibit 1 will be the popu- lation map. Judge Robinson: The large map. Mr. Stoner: The large population may showing the dis- tribution of population in the City of New Orleans between black and white. Exhibit 2 will be the voter registration map which shows the distribution of registered voters geographically in the City. Judge Robinson: That’s the second largest map. Mr. Stoner: The second largest map. Judge Robinson: Very well. Mr. Stoner: And Exhibit 3 will be the present plan of redistricting, wh:ch is a map, and which had been originally attached as Exhibit H to the Complaint. Judge Robinson: Very well. I am all straight now. Mr. Stoner: Exhibit 4 will be Exhibit A to the Complaint. Judge Robinson: That’s the Charter? 93 Mr. Stoner: The excerpt from the Charter of the City of New Orleans. Exhibit 5 will be Exhibit B attached to the Complaint. Judge Robinson: These are the excerpts from the 1912 [54] Louisiana Act, as I recall? Mr. Stoner: From the 1912 Act, yes, Your Honor. Judge Robinson: All right. Mr. Stoner: Exhibit 6 will be the Exhibit C to the orig- inal Complaint, which is a map of the first plan of redistrict- ing as adopted by the City Council. Exhibit 7 is Exhibit A to the original Complaint. Judge Robinson: Exhibit A or D? Mr. Stoner: I’m sorry, Exhibit D, and is a Mayor-Coun- cil Series Ordinance No. 7496. Judge Waddy: That is the plan that you are now espous- ing: is it not? Mr. Stoner: No, no, it is not. That was the first plan. Judge Robinson: The first plan? Mr. Stoner: That was the first plan. Judge Robinson: Does that have written on it, Mr. Stoner, ‘‘Calendar No. 5194’’? Mr. Stoner: It does. Judge Robinson: Very well. Mr. Stoner: Yes, it does. Exhibit 8, Plaintiffs’ Exhibit 8 would be Exhibit E to the original Complaint and is the Department of Justice’s letter dated January 15, 1973, with respect to the first plan, addressed to Mr. Ernest L. Sala- tich. Exhibit 9 would be exhibit F to the original Complaint [55] and is an ordinance, Mayor-Council Series Ordinance No. 5154, and is the present plan, the second plan, which is before the Court. Exhibit 10 would be Exhibit G to the original Complaint and is*the Department Justice’ s letter dated July 9, 1973, with Tespect to the second plan and is addressed to Mr. Ernest L. Salatich. A letter from J. Stanley Potting. r, Assistant Attorney General, Exhibit H to the Complaint—to cover all of the 94 exhibits that were attached to the Complaint—has pre- viously been identified as Exhibit 3, and that is the map which shows the Council Districts as proposed in the plan which is before the Court. Judge Robinson: Very well. As stated earlier, they will all be received. Mr. Stoner: Thank you, Your Honor. (Plaintiffs’ Exhibits 1 through 10 were received in evi- dence. ) Direct Examination By Mr. Stoner: Q. Mr. Beer, would you please state your full name and address. A. My name is Peter H. Beer, and my address is 5855 Bel Air Drive, New Orleans, Louisiana. Q. Mr. Beer, what is your occupation? [56] A. I am an attorney. Q. What is your position with respect to this lawsuit? A. I am one of the plaintiffs in the litigation. Q. Are you a member of the present Council of the City of New Orleans? A. Iam. — Q. How long have you been a member of that Council? A. We took offies: in May of 1970. Q. You are finishing your first term as a councilman? A. That term will end in April of 1974. Q. Which district in the City of New Orleans do you presently represent? A. District A. — Judge Waddy: District The Witness: A, Your Honor. By Mr. Stoner: Q. Mr. Beer, are you familiar with the Charter of the City of New Orleans, particularly the provision which re- quires the council to redistrict itself following each decen- nial census?