Petition — Wise v. Lipscomb
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RECEIVED |
OCT 71977
(a —_—-——— CLERK
SUPREME REOURT. U.S.
In The
Supreme Court of the United States
OCTOBER TERM 1977
No. '17-S29
Wes WISsg, et al.,
Petitioners,
Vv.
ALBERT L. Lipscoms, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Ve E. Hout
Josern G. WERNER
Attorneys For Petitioners
501 Municipal Building
Dallas, Texas 75201
SOUTHWESTERN LAW PRESS — DALLAS, TEXAS . (214) 742.3985
SUBJECT INDEX
Page
Sy Saati i dvds casndaresacérer l
FT Makin ede ae a icelk tie hi cess one 2
QUESTIONS PRESENTED .........0cccecccccccecess 2
EAT ee I Ba Cdk ns cc dnc ccscdenttcecens 3
STATEMENT OF THECASE ....... ROSES See ee 4
REASONS FOR GRANTING THE WRIT .............. 7
COPSGRAIIIONN «ai nadin vic bated dda eeddndicteren eee 14
STATUTES, CHARTERS, ORDINANCES, RESOLUTIONS
RG srcdnlidassccdaensdundkienerededénets A-l
OPINIONS, JUDGMENTS AND ORDERS BELOW
APTUMGRG eo vicicccvendseditdedt ck i cider B-1
APT 0 Sebo kA RN ea C-1
SIE 2 cove konduiasiandessvedninesianoneen D-!
PI. vanes wali bumnnnhnmanntnaenebearent E-1
ET hind doses bans tehauhndeseetnteaeneae F-1
IEE 644s stnbinindilin dntinmadkeed anette paces G-1
SEE i vhie'nss tibtdpnaellsnedahed inci casaiie H-1
**
Table of Authorities Cited
Cases: Page
Beer v. United States, 425 U.S. 130(1976) ......c.ceeeeee. 9
Burns v. Richardson, 384 U.S, 73 (1966) ..........000005 2,7
Chapman v. Meier, 420 U.S. 1 (1975) ..........05. 8,9, 13, 14
Connor v. Finch, ... U.S. ...,97S.Ct. 1828 (1977) ....... 8
Dallas County v. Reese, 421 U.S. 477 (1975) ........ 11, 12,13
Dusch v. Davis, 387 U.S. 122 (1967) .......... taint Mek 13,14
East Carroll Parish School Board v. mMersnelt, 424
DEED ncndsuddantscedededsleeesdceeeess 6,7
Forwood y. City of Taylor, 147 Tex. 161, 214 S.W.2d
BOE be vndunns seus enaVosdsvhebwebncweuetebeubeces 9
Gaffney v. Cummings, 412 U.S. 735 (1973) .......... 7, 11, 12
Kilgarlin v. Hill, 386 U.S. 120 (1967) ..........ccceceeeee &
Lower Colorado River Authority v. City of San
Se MEET hc DA kebndbdareccdoecbeostecece 9
Reynolds v. Sims, 377 U.S. 533 (1964) .......... ccc eues 2,7
United Jewish Organizations v. Carey, __U.S.__,
Oe ee WOEUOTED 8 co 6bCbde dee detec ecccedeveds 11,12
Whitcomb v. Chavis, 403 U.S. 124(1971) ............ 7,10, 11
White v. Regester, 412 U.S. 755(1973) ...... ccc ccc ceeees 10
Constitutional Provisions and Statutes:
pS ERIS IEEE FE 9
Table of Authorities — (Continued)
Charters, Ordinances and Resolutions: Page
Charter of the City of Dallas, 1907, art. Ill, sec. |
(Tex.Laws 1907, ch. 71, art. II, sec. 1)... .. eee 3,4, 8,9
Charter of the City of Dallas, 1931, ch. Ill, sec.9 ....... 3, 5,8
Charter of the City of Dallas, 1931, as amended 1973,
Ch. TV, 906. 4 .cccccccccdeecccccchecccsccccccecs 3,4, 5,8
City of Dallas Resolution Number 75-0207, sec. | ........ 3,5
City of Dallas Ordinance Number 14800, sec. 2.......+... 4,5
In The
Supreme Court of the United States
OCTOBER TERM 1977
No.
WeEs WISE, et al.,
Petitioners,
Vv.
ALBERT L. LIPscoms, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
To The Honorable Judges of Said Court:
Petitioners pray that a writ of certiorari issue to review the
judgment of the United States Court of Appeals for the Fifth
Circuit, entered May 9, 1977.
CITATIONS TO OPINIONS BELOW
The opinion of the district court is reported at 399 F.Supp. 782,
and is printed in Appendix B hereto, infra, p. B-!. The opinion
of the court of appeals is reported at 551 F.2d 1043, and is printed
in Appendix D, infra, p. D-1. P
i |
JURISDICTION
The judgment of the court of appeals was rendered and entered
May 9, 1977. Appendix C, infra, p. C-1.
Rehearing was denied July 13, 1977. Appendix E, infra, p. E-1.
The mandate of the court of appeals was issued August 8, 1977.
Appendix C, infra, p. C-1. The mandate of the court of appeals
was recalled and the judgment of that court was stayed by order
by Mr. Justice Powell, dated August 30, 1977. Appendix G, infra,
p. G-l.
The jurisdiction of this Court is invoked under 28 U.S.C., Sec.
1254(1).
QUESTIONS PRESENTED FOR REVIEW
(1) May the court of appeals disregard the rule established by
this Court in Reynolds v. Sims, 377 U.S. 533 (1964), and Burns v.
Richardson, 384 U.S. 73 (1966), that a State’s freedom of choice
to devise substitutes for apportionment plans found
unconstitutional should not be restricted beyond the clear
commands of the Equal Protection Clause?
(2) May a State, in fashioning remedies to correct an
unconstitutional dilution of the voting rights of one minority
group, consider the voting rights of a second minority group,
absent a judicial determination that the voting rights of the
second minority have been unconstitutionally impaired?
(3) May the court of appeals invalidate a state-initiated use of
at-large voting based upon the need for representation of a
city-wide perspective in municipal government, where there has
been no finding that such at-large voting invidiously minimizes or
cancels out the voting strength of any identifiable group?
3
STATUTES, CHARTERS, ORDINANCES AND
RESOLUTIONS INVOLVED
The case involves the following provisions of statutes, charters,
ordinances and reso.utions:
(1) Charter of the City of Dallas, Tex. Laws 1907, ch. 71, art.
III, sec. 1, at 596:
“1. All powers conferred on the city shall, unless otherwise
provided i in this charter, be exercised by a mayor and four
commissioners, who together shall be known and
designated as the board of commissioners, all of whom shall
be elected by the qualified voters of the city at large, and
shall devote their entire time to the service of the city.”
(2) Charter of the City of Dallas, 1931, ch. III, sec. 9, at 16:
“Section 9. Except as otherwise provided by the Charter of
the City of Dallas all powers conferred on the City shall be
exercised by a City:Council to be composed of nine
members, nominated and elected in the manner hereinafter
provided. The members of the City Council shall be elected
by the qualified voters of the entire city, and they shall each
be elected for a term of two years and until their respective
successors shall have been elected and shall have qualified.”
(3) Charter of the City of Dallas, 1931, as amended 1973, ch.
IV, sec. 4 at 19:
“All qualified voters of the city shall be entitled to vote for
one candidate for each ‘place number’.”
(4) City of Dallas Resolution Number 75-0207, sec. 1:
“Section 1. That the City Attorney be, and he is hereby
directed to notify the Judge of the United States District
Court for the Northern District of Texas, Dallas Division,
that it is the intention of the majority of this City Council to
pass an ordinance, when prepared by the City Attorney,
which will adopt the present eight residential districts as
single member districts, with one individual Councilman to
be elected from each of the districts and living in the district,
4
and with three individuals, including the Mayor, to be
elected at-large with no residential requirements other than
that the candidate live within the City limits of Dallas.”
(5) Ordinance Number 14800 of the City of Dallas, sec. 2:
“Section 2. As a result of the decision of the United States
District Court for the Northern District of Texas in the case
of Albert L. Lipscomb, et al. v. Wes Wise, et al., CA3-4571-
E, and this Ordinance enacted pursuant thereto, only the
qualified voters residing within Districts 1, 2, 3, 4, 5, 6, 7
and 8 shall be eligible to vote for a candidate for Member of
Council, Place Numbers 1, 2, 3, 4, 5,6, 7 and 8, respectively.
Every qualified voter of the City shall, in addition, be
elig ble to vote for a candidate for Place Numbers 9, 10 and
11.”
THE PARTIES
Petitioners are the mayor and members of the City Council of
the City of Dallas, Texas.
Respondents are a class composed of the Negro citizens of the
City of Dallas, who were plaintiffs in the district court, and a
group of Mexican-American intervenors who were denied class
certification in the district court.
STATEMENT OF THE CASE
The legislative powers of the City of Dallas (see article 1175,
Tex. Rev. Civ. Stat. Ann.) are exercised by an eleven-member
city council. At the time this litigation was begun all eleven
members were elected at-large from the entire city. Charter of the
City of Dallas, 1931, as amended 1973, ch. IV, sec. 4, at 19,
Appendix A. infra, p. A-1; Lipscomb v. Wise, 399 F.Supp. 782
at 785 (N.D. Tex. 1975), Appendix B, infra, p. B-4. At-large
elections in various forms have been used in Dallas since at least
1907. Charter of the City of Dallas, Tex. Laws 1907, ch. 71, art.
5
Ill, sec, 1, at 596, Appendix A, infra, p. A-1; Charter of the City
of Dallas, 1931, ch. III, sec. 9, at 16, Appendix A, infra p. A-1;
Charter of the City of Dallas, 1931, as amended 1973, ch. IV, sec.
4, at 19, Appendix A, infra, p. A-1; Lipscomb v. Wise, supra, 399
F.Supp. at 785, Appendix B, infra, p. B-4.
Suit was brought in the United States District Court for the
Northern District of Texas by Negro and Mexican-American
voters who sought a determination that the at-large election ofall »
city council members unconstitutionally diluted their voting
strengths. Jurisdiction of the district court was based upon 28
U.S.C. Section 1343 (3), (4).
The Mexican-American plaintiffs were dismissed from
the suit, and the district court rendered judgment that the
at-large election of all members of the council was uncon-
stitutional. The district court then “gave the City of
Dallas an opportunity to perform its duty to enact a
constitutionaily acceptable plan”, Lipscomb v. Wise, supra, 399
F.Supp. at 792, Appendix B, infra, p. B-16, and retained
jurisdiction pending the adoption of a plan by the City.
The city council reapportioned itself, enacting an ordinance
which requires the election of eight members from single-member
districts and the at-large election, city-wide, of the remaining
three members, one of whom simultaneously serves as mayor.
Lipscomb v. Wise, 551 F.2d 1043, 1045-1046 (Sth Cir. 1977),
Appendix D, infra, p. D-2; Lipscomb v. Wise, supra, 399
F.Supp. at 791, Appendix B, infra, p. B-15; City of Dallas
Resolution 75-0207, sec. 1, Appendix A, infra, p. A-1; City of
Dallas Ordinance No. 14800, sec. 2, Appendix A, infra, p. A-2.
The plan enacted by the council was reviewed and found
constitutional by the district court. Lipscomb v. Wise, supra, 399
6 .
F.Supp. at 792, 795, 797, 798, 800, Appendix B, infra, pp. B-16,
B-22, B-25, B-26, B-27, B-32.
The district court found that the combination of single-
member and at-large positions would afford Mexican-
Americans a “greater opportunity for participating in the
political process.” Lipscomb v. Wise, supra, 399 F.Supp. at 792.
Appendix B, infra, p. B-17.
The district court further found that the “need for a city-wide
view on the part of the council” also forms a valid basis for partial
at-large representation, citing the advantages of having a non-
sectional viewpoint expressed in zoning matters, city planning
and the budget. Lipscomb v. Wise, supra, 399 F.Supp. at 794,
Appendix B, infra, p. B-21.
The Court of Appeals for the Fiftt Circuit reversed and
remanded, citing this Court's decision in East Carroll Parish
School Bd. v. Marshall, 424 U.S. 636 (1976), holding that there
was no “special circumstance” which would permit the at-large
election of three of the eight council members, and prohibiting
the at-large election of any council member other than the mayor.
Lipscomb v. Wise, supra, 551 F.2d at 1048, Appendix D, infra, p.
D-9. The court of appeals did not purport to determine the
constitutionality of the plan enacted by the city council.
All parties petitioned for rehearing, and the court of appeals
cenied those petitions July 13, 1977. Appendix E, infra, p. E-1.
The court of appeals denied petitioners’ motion for stay of the
mandate of that court. Appendix F, infra, p. F-1.
The mandate of the court of appeals was recalled and the
judgment of that court stayed by order of Mr. Justice Powell,
dateu Augus: 30, !977. Appendix G, infra, p. G-1.
7
REASONS FOR GRANTING THE WRIT
1. The court of appeals has established a rule of law in conflict
with this Court’s prior decisions by limiting beyond the clear
- commands of the Equal Protection Clause a State’s freedom of
choice to devise a substitute for an apportionment plan found
unconstitutional.
This Court has held that when a legislative apportionment plan
is held unconstitutional by reason of numerical imbalance or
dilution of minority voting strength the legislative body shall be
given an opportunity to devise its own reapportionment plan to
eliminate constitutional deficiencies. Reynolds vy. Sims, 377 U.S.
533, 586 (1964), Burns v. Richardson, 384 U.S. 73, 85 (1966). See
also Gaffney v. Cummings, 412 U.S. 735, 751 (1973). If the
legislative body timely adopts a remedial apportionment plan, it
is subject to review only to the extent that it must meet the “clear
commands of the Equal Protection Clause.” Burns v.
Richardson, supra, 384 U.S. at 85. If the legislature fails to adopt
its own remedial plan within a reasonable time, or if its plan
violates the Equal Protection Clause, the district court is
authorized to devise and order implementation of a plan.
Whitcomb v. Chavis, 403 U.S. 124, 162 (1971). Such court-
ordered reapportionment plans must not only satisfy the
requirements of the Equal Protection Clause but must also
conform to the federal common law of voting rights remedies,
which forbids the court-initiated use of at-large voting except
under unusual circumstances. East Carroll Parish School Board
v. Marshall, supra, 424 U.S. at 639-640 (1976). This Court has
never held that state-initiated reapportionment plans are subject
to the closer scrutiny by which court-ordered plans musi be
tested, but instead has declared that the standards for evaluating
8
the use of at-large voting in remedial apportionment plans differ
depending on whether the use of at-large voting is initiated by a
federal court or a state legislative body. Chapman v. Meier, 420
U.S. 1, 18(1975), Connor v. Finch, U.S. —__, 97 S.Ct. 1828,
1833 (1977).
The Court of Appeals for the Fifth Circuit in the instant case
recognized that the use of at-large voting stems from “Dallas’
longstanding public policy in favor of at-large voting.” Lipscomb
v. Wise, supra, 551 F.2d at 1046, Appendix D, infra. p. D-5. See
also Charter of the City of Dallas, Tex. Laws 1907, ch. 71, art. ILI,
sec. |, at 596, Appendix A, infra, p. A-1; Charter of the City of
Dallas, 1931, ch. III, sec. 9, at 16, Appendix A, infra, p. A-1;
Charter of the City of Dallas, 1931, as amended 1973, ch. IV, sec.
4, at 19, Appendix A, infra, p. A-1. Cf. Kilgarlin v. Hill, 386 U.S.
120, 123-124 (1967). The court of appeals also acknowledged
that the plan approved by the district court was “enacted as a city
ordinance following the [district] court's decision that the prior
system was unconstitutional.” Lipscomb v. Wise, supra, 551 F.2d
at 1045, Appendix D, infra, p. D-3. The court of appeals never-
theless stated that the council's reapportionment plan could be
approved only if “the election plan proposed and formally
adopted by the city council is (1) constitutional and (2) otherwise
in accordance with the federal common law of voting rights
remedies”. Lipscomb v. Wise, supra, 551 F 2d at 1046, Appendix
D, infra, p. D-4, The court of appeals did not purport to
determine the constitutionality of the City’s reapportionment
plan, but held the plan contrary to federal common law and,
therefore, invalid because there appeared to be no special
circumstances to justify at-large voting. Lipscomb v. Wise, supra,
551 F.2d at 1048, Appendix D, infra, p. D-9.
9
The use of at-large voting in the City of Dallas was not initiated
or imposed upon the City by a federal court, cf. Chapman v.
Meier, supra, 420 U.S. at 18, 19, but instead was initiated by the
State more than sixty years before this litigation began. Charter
of the City of Dallas, Tex. Laws 1907, ch. 71, art. III, sec. 1, at
596, Appendix A, infra, p. A-1. Lipscomb v. Wise, supra, 399
F.Supp. at 785, 797-798, Appendix B, infra, p. B-4, p. B-27. The
plan itself was created as a legislative act of the City Council
of the City of Dallas.'
The City’s reapportionment plan in its entirety is a “state-
initiated apportionment scheme”, in the sense that it was en-
acted by a state legislative body. Cf. Chapman v. Meier, supra,
420 U.S. at 14, 18. The use of at-large representation as one
aspect of that plan is a device which is “state-initiated”, in the
sense that at-large voting was first used in Dallas by act of the
Texas Legislature, nearly seventy years ago. Cf. Beer v. United
States, 425 U.S. 130, 139 (1976).
The use of at-large voting by the City of Dallas, therefore, is
“state-initiated” within the meaning of Chapman v. Meier, supra,
420 U.S. at 18; the reapportionment plan enacted by the city
council is not a court-ordered reapportionment scheme
reviewable under the “unusual circumstances” test applied by the
court of appeals; and the plan is reviewable only to the extent that
' In Texas a home rule city such as the City of Dallas derives its powers not
from the Legislature, but from the Home Rule Amendment, Article XI,
Section 5 of the Texas Constitution, adopted in 1912, Lower Colorado River
Authority v. City of San Marcos, 523 S.W.2d 641, 642 (Tex.Sup.Ct. 1975).
Home rule cities in Texas have been held since that time to have “full power of
self-government, that is, full authority to do anything the Legislature could
theretofore have authorized them to do. The result is that now it is necessary
to look to the acts of the Legislature not for grants of power to such cities
but only for limitation on their powers.” Forwood v. City of Taylor, 147
Tex. 161, 214 S.W.2d 282, 286 (Tex.Sup.Ct. 1948). The record suggests no
statutory limitation upon the authority of the City of Dallas to adopt a mu-
nicipal election plan.
10
it must conform to the “clear commands of the Equal Protection
Clause.” Neither the court of appeals nor the district court has
held that the City’s use of at-large voting violates the Equal
Protection Clause, and the court of appeals erred in reversing
the judgment of the district court.
The court of appeals by its decision in this case has effectively
eliminated the distinction drawn by this Court between court-
ordered and state-initiated reapportionment plans and has failed
to notice and apply this Court's decisions limiting review of state-
initiated reapportionment plans to the clear commands of the
Equal Protection Clause. This decision of the court of appeals
has caused every legislature and political subdivision within the
Fifth Circuit to be subjected to a standard never sanctioned by
this Court and clearly in conflict with this Court's prior decisions,
and the writ should be granted to resolve that conflict.
2. The court of appeals has held, contrary to prior decisions of
this Court, that the effect of the City’s reapportionment plan on
Mexican-American voters cannot be considered absent an
adjudication that the voting rights of Mexican-American voters
have been unconstitutionally impaired.
This Court has held that multi-member districts and at-large
elections do not per se violate the Equal Protection Clause,
Whitcomb v. Chavis, supra, 403 U.S. at 142 (1971), and the
incorporation of at-large voting in a state-initiated remedial
apportionment plan does not violate the “clear commands of the
Equal Protection Clause” unless the use of at-large voting
invidiously cancels out or minimizes the voting strength of racial
groups. White v. Regester, 412 U.S. 755, 765-766 (1973). A
successful equal protection challenge moreover must be based on
findings in a particular case that a plan in fact operates to dilute
the voting strength of an identifiable element of the voting
population. Dallas County v. Reese, 421 U.S. 477, 480 (1975),
Whitcomb v. Chavis, supra, 403 U.S. at 144.
This Court also has declared that the permissible use of racial
criteria in legislative reapportionments is not confined to
eliminating the effects of past discriminatory districting or
apportionment. United Jewish Organizations v. Carey, __U.S.
____, 97 §.Ct. 996, 1007, 51 L.Ed.2d 229, 243 (1977). The Court
similarly held, in Gaffney v. Cummings, supra, 412 U.S. at 752-
754 that a legislative reapportionment was not invidiously
discriminatory simply because districts were based upon a
principle of “political fairness” designed to perpetuate an
approximately proportional representation of the Republican
and Democratic parties. Although there had been no judicial
determination that the voting rights of Republicans or
Democrats had been impaired unconstitutionally, the Court held
valid a reapportionment based upon proportional representation
of political parties, saying “. . . neither we nor the district courts
have a constitutional warrant to invalidate a state plan, otherwise
within tolerable population limits, because it undertakes, not to
minimize or eliminate the political strength of any group or
party, but to recognize it and, through districting, provide a
rough sort of proportional representation in the legislative halls
of the state.” Id., 412 U.S. at 754.
The district court in the instant case, having found the city
council's plan constitutional, declared that Mexican-Americans
in Dallas “do not suffer from present dilution of their voting
strength”, Lipscomb v. Wise, supra, 399 F.Supp. at 793,
Appendix B, infra, p. B-19, and made extensive findings of fact
which support its ultimate conclusion that the incorporation of
12
at-large voting into the plan would enhance the opportunity of
Mexican-American voters to participate in local electoral
politics. Lipscomb v. Wise, supra, 399 F.Supp. at 793-794,
Appendix B, infra, p. B-19. The court of appeals did not purport
to determine the constitutionality of the council's plan but
disregarded the findings of the district court because the district
court had not found any unconstitutional impairment of
Mexican-American voting rights. Lipscomb v. Wise, supra, 551
F.2d at 1047, Appendix D, infra, p. D-7.
There is no finding in this case that the partial use of at-large
voting dilutes the voting strength of any identifiable element of
the voting population; therefore there could be no valid basis for
a determination by the court of appeals that the plan violates the
Equal Protection Clause. Dallas County v. Reese, supra, 421
U.S. at 480.
The conclusion of the court of appeals that the voting rights of
Mexican-Americans cannot be considered absent a finding of
unconstitutional dilution is directly contrary to this Court's
decisions in United Jewish Organizations v. Carey, supra, and
Gaffney v. Cummings, supra, and cannot serve as a basis for
invalidation of the council's plan under any standard of review.
The decision of the court of appeals is in conflict with
decisions of this Court insofar as the decision of the court of
appeals purports to require an adjudication of unconsti-
tutionality as a prerequisite to recognition of the voting
rights of any identifiable group, and the writ should issue to
resolve that conflict.
3. The court of appeals has invalidated the State's use of at-
large voting based upon the need for representation of a city-wide
perspective in municipal government, even though neither the
13
district court nor the court of appeals found that such use of at-
large voting would minimize or cancel out the voting strength of
any identifiable segment of the voting population.
This Court has approved local government apportionment
plans which utilize at-large representation, Dusch v. Davis, 387
U.S. 112 (1967), cf. Dallas County v. Reese, supra, and has
indicated that representation of city-wide views may form a
rational basis for the use of multi-member districts. Chapman v.
Meier, supra, 420 U.S. at 20 n. 14.
The district court found that the city council's constitutionally
permissible preference for partial at-large representation was
based on the council's responsibility for policies which affect the
city as a whole, as well as those which affect geographic or
demographic segments of the city, and that a non-sectional
viewpoint is desirable in matters such as zoning, formulation of
the budget and urban land use planning. Lipscomb v. Wise,
supra, 399 F.Supp. at 794, Appendix B, infra, p. B-21.
The court of appeals wholly disregarded those findings and did
not purport to determine the validity of the City’s interest in
representation of a city-wide perspective on the council. The
court of appeals nevertheless declared the council's plan invalid,
although there are no findings of fact on which to base such a
determination. See Dallas County v. Reese, supra, 421 U.S. at
480.
The court of appeals by its invalidation of the council's plan
without a finding of invidious discrimination has rendered a
decision in conflict with this Court's decision in Dallas County v.
Reese, supra. The court of appeals by its disregard of the City's
preference for at-large voting in response to the need for a city-
14
wide perspective has rendered a decision in conflict with this
Court's decisions in Dusch v. Davis, supra, and Chapman vy.
Meier, supra, and the writ should issue to resolve these conflicts.
CONCLUSION
Petitioners pray that this petition be granted and that a writ of
certiorari issue to the United States Court of Appeals for the
Fifth Circuit.
Respectfully submitted,
LEE E. HOLT
JOSEPH G. WERNER
Attorneys for Petitioners
Dallas, Texas 75201
(214) 748-9711, Ext. 294
CERTIFICATE OF SERVICE
1, Joseph G. Werner, a member of the bar of the Supreme
Court of the United States, certify that copies of the foregoing
petition were served on James A. Johnston, Esq., Sylvia M.
Demarest, Esq., Edward B. Cloutman, Esq., Walter L. Irvin,
Esq., and George Solares, Esq., Attorneys for Respondents, on
this the 6th day of October, 1977, by placing in a depository of the
United States Postal Service three copies of the petition, with
first class postage prepaid, addressed to each of the attorneys
named above at his or her post office address, in compliance with
U.S. Sup. Ct. Rule 33(1), (3b).
©PH G. WERNER
A-l
APPENDIX A
(1) Charter of the City of Dallas, Tex. Laws 1907, ch. 71,
art. III, sec. 1, at 596.
“1. All powers conferred on the city shall, unless otherwise
provided in this charter, be exercised by a mayor and four
commissioners, who together shall be known and
designated as the board of commissioners, all of whom shall
be elected by the qualified voters of the city at large, and
shall devote their entire time to the service of the city.”
(2) Charter of the City of Dallas, 1931, ch. III, sec. 9, at 16:
“Section 9. Except as otherwise provided by the Charter of
the City of Dallas all powers conferred on the City shall be
exercised by a City Council to be composed of nine
members, nominated and elected in the manner hereinafter
provided. The members of the City Council shall be elected
by the qualified voters of the entire city, and they shall each
be elected for a term of two years and until their respective
successors shall have been elected and shall have qualified.”
(3) Charter of the City of Dallas, 1931, as amended 1973, ch.
IV, sec. 4 at 19:
“All qualified voters of the city shall be entitled to vote for
one candidate for each ‘place number’.”
(4) City of Dallas Resolution Number 75-0207, sec. |:
“Section |. That the City Attorney be, and he is hereby
directed to notify the Judge of the United States District
Court for the Northern District of Texas, Dallas Division,
that it is the intention of the majority of this City Council to
pass an ordinance, when prepared by the City Attorney,
which will adopt the present eight residential districts as
single member districts, with one individual Councilman to
elected from each of the districts and living in the district,
and with three individuals, including the Mayor, to be
elected at-large with no residential requirements other than
that the candidate live within the City limits of Dallas.”
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(5) Ordinance Number 14800 of the City of Dallas, sec. 2:
“Section 2. As a result of the decision of the United States
District Court for the Northern District of Texas in the case
of Albert L. Lipscomb, et al. v. Wes Wise, et al., CA3-4571-
E, and this Ordinance enacted pursuant thereto, only
the qualified voters residing within Districts 1, 2, 3, 4,5,6,7
and 8 shall be eligible to vote for a candidate for Member of
Council, Place Numbers 1, 2, 3, 4, 5,6, 7 and 8, respectively.
Every qualified voter of the City shall, in addition, be
eligible to vote for a candidate for Place Numbers 9, 10 and
Hi
APPENDIX B
Albert L. Lipscomb, et al.
v.
The Honorable Wes Wise, Mayor of the
City of Dallas, et al.
Civ. A. No. CA-3-4571-E
United States District Court,
N. D. Texas,
Dallas Division
March 25, 1975.
MEMORANDUM OPINION
MAHON, District Judge.
This challenge to the present electoral system for the Dallas
City Council has progressed a winding path to trial. Filed in 1971,
the suit was originally dismissed for failure to state a claim upon
which relief could be granted. On appeal, the Fifth Circuit
remanded with clarification of what plaintiffs’ burden would be
in these circumstances. Lipscomb v. Jonsson, 459 F.2d 335 (Sth
Cir. 1972).
I.
Plaintiffs originally purported to represent the black
population residing within an identifiable area of the City of
Dallas, but prior to December 9, 1974, no order certifying this
cause as a class action was entered. The Court originally began to
hear testimony on this matter during the week of July 15, 1974.
After approximately one and a half days of testimony, the Court,
on its own motion, and out of an abundance of caution, sus-
pended testimony pending resolution of the possibility that
the matter might have been one of state-wide rather than local
concern, and therefore appropriate for a three-judge court deter-
mination. The case was determined to be one appropriate for a
single judge to hear, and the cause was reset for hearing for the
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week of December 9, 1974.! On the day of the trial, the Court
entered an order, certifying the matter as a class action; the class
consisting of all blacks residing within the corporate limits of the
City of Dallas. The order also denied a pending motion for leave
to intervene on behalf of certain Mexican-Americans as parties
plaintiff. This denial was the specific right of the proposed
intervenors to participate in any subsequent hearing that may be
held concerning the manner of appropriate relief if the present
election system was held to be constitutionally defective. The
order provided in part that:
“It appeared that on the initial filing of this lawsuit on the
10th day of March, 1971, there were included as plaintiffs
members of the Mexican-American Class and the action
was on behalf of all the minority groups including the
Blacks and Mexican-Americans who live within the City of
Dallas. The defendants sought to elicit written interroga-
tories from all of the plaintiffs. Certain of the plaintiffs
refused to respond to the interrogatories and upon contact
by their counsel continued to refuse to respond. Included in
this group were all of the Mexican-American Race
originally included as plaintiffs in the lawsuit.
Upon motion duly made and hearing had, the Court
dismissed from the lawsuit all of those members of the
plaintiff's class who refused to respond to written inter-
rogatories. Included within this group were all those of
Mexican-American descent.
Prior to the entry of this Order the plaintiffs had amended
their pleadings by their Second Amended Original
Complaint and included in the Amended Complaint were
both the Black and Brown citizens of Dallas. However,
counsel determined that after all of the Mexican-American
' Tex. Const. Art. VI, § 3, Vernon’s Ann.St., in essence provides that all
qualified electors within a city shall have the right to vote for all elective
officers of a city. See also, Tex. Const. Art. V1, § 3, and Vernon's Tex.Rev.
Civ.Stat.Ann. art. 1175(1963). See however, State v. McAllister, 88 Tex. 284,
31 S.W. 187, 189 (1895), which holds Tex.Const. Art. VI, § 3 not to bea bar to
the election of city aldermen by wards. On July 22, 1974, Chief Judge Brown
of the Fifth Circuit advised the Court that he had declined to constitute a
three-judge court in this cause.
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plaintiffs were dismissed, and having no individual
Mexican-American plaintiffs, that they could no longer
represent the Mexican-Americans as a class and therefore
urged the Court to consider this an action with the class
being those Black citizens residing within the city limits of
the City of Dallas.
After a portion of the case had been presented to the
Court and the trial had been commenced and recessed, the
intervenors filed their motion on July 16, 1974, for the
purpose of intervening on behalf of the Mexican-American
citizens in the City of Dallas. The testimony previously
presented to this Court shows that this class represents
approximately 8% of the population of the City of Dallas,
the housing pattern is such that they are spread throughout
the city limits of Dallas and are not a predominant factor in
any concentrated census tract groups, and in view of these
facts, the Court is of the opinion that to allow the inter-
vention at this time would result in many difficulties in the
management of this case as a class action and it would result
in a delay that would possibly take the case beyond the time
of the City Council election and the time that candidates
need to file their candidacy. Moreover, the Court is of the
opinion that to permit this intervention at this late hour
would not assist the Court in resolving the issue of the
constitutionality of the present at-large svstem.”
After this order was entered, testimony was resumed on the
question of whether the existing manner of electing members of
the Dallas City Council was constitutional. On January 17, 1975,
the Court found the present system of electing members to the
Dallas City Council constitutionally infirm. Dallas was afforded
an opportunity to come forward with an apportionment plan
which would meet constitutional standards and testimony was
heard on the merits of the city’s proposal the week of February 4,
1975. Testimony at the remedy stage took over two days.
Il.
This suit is not the conventional one person one vote
reapportionment case; rather it is an attack alleging dilution of
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the racial minority vote. The dilution is said to arise from
operation of the at-large system of electing Dallas City Council
which provides that every candidate for council run city wide,
and face all the voters of the city. The Dallas City Charter
requires that the city be divided into eight residential districts for
City Council elections. Any person seeking election for any of the
“places” on the ballot corresponding to the eight districts, must
reside in the respective district. Three members, including the
mayor, run without regard to any residence requirement. Voting
for all eleven council seats is at-large, that is, on a city wide basis,
regardless of the residency requirement. A majority of all votes
cast for the councilmen, for the place for which the person is
running, is required for election.
Dallas adopted its present council/manager form of
government in 1931. Prior to that time it had a commission
form of government, but since at least 1907, members of the
city government have been elected on an at-large basis.
The number of positions on the City Council has been enlarged
from time to time, the latest chanye being in 1968 when, by
charter amendment it was increased from nine to the present
eleven seats. The City Council elects from among its members
two councilmen to hold the positions of Mayor Pro-Tem, and
Deputy Mayor Pro-Tem. As noted above, all positions to council
are elected by vote of the entire city.
The alleged dilution of the black citizens’ vote was said to have
its genesis in the racially segregated housing pattern present in
the City of Dallas. Plaintiffs’ uncontradicted evidence showed the
existence of what was variously called a minority or inner city
area. The characteristics of this geographical area were
developed by use of United States Census demographic data and
the area was described as being more or less continguous,
extending from the city’s South side, north to the city’s central
business district, curving northwest across the business district to
the city’s Love Field area. Within this area are located some
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forty-odd standard statistical community census tracts as defined
by the United States Census Bureau. Plaintiffs’ experts gave
testimony concerning the racial and socio-economic composition
of the minority area and offered exhibits in summary. The black
population of Dallas is 210,227.2 The evidence shows that the
minority area contains a black population which is 90% of all
residents in the area. This means that nine out of every ten
residents are black, of all the black residents in the city of Dallas,
93% reside within this area; of all the black residents of Dallas
County, 95% were shown to reside here. In addition to the
distinct racial composition of the inner city area, other
characteristics were shown. A less desirable rating on many
economic indicators of well-being were shown to exist here. For
example, housing was shown to be generally of less value and of
lower quality in the inner city area. The median grade level of
schooling attained by residents of this area was shown to be less
than for the non-minority areas. Unemployment was higher.
Median income was lower. In general socio-economic indicators
purporting to show “quality of life” were less favorable when
compared with other areas of Dallas.
The voting patterns of the inner city area in relation to the
voting patterns of the rest of the city with regard to elections for
City Council positions were examined. The testimony was
concerned with who carried the black area and how that
candidate fared in the city elections at large. Examples from five
elections demonstrate the pattern which emerged from this
testimony. The first two elections concern place three for the
subsequent elections years of 1959 and 1961. The 1959 election
presented a black vs. white contest. The black candidate in that
election polled some 87% of the votes from the above-described
inner city. His white opponent polled some 73% of the vote from
the non-minority area. The result, when translated into vote
totals, gave the white candidate a 65% total of all votes cast and
2 United States Census Data, 1970. Unless otherwise stated 1970 census data is
used for all population and percentage figures.
B-6
made him the election winner. The 1961 election pitted a black
against two white opponents. Here, the black candidate played
the role of spoiler, forcing a run-off between his two white
opponents. In the first election the black candidate garnered 81%
of the black area’s votes. In the white areas he gathered a scant
15%. The relative percentages left him as low man in the three-
way race and eliminated him from the run-off. In 1965, the place
eight election is illustrative of the pattern. This was a two-way
race, black versus white. The black candidate carried the black
area with 86% of the vote; the white candidate carried the white
area with 75% of the vote. The total vote percentage gave the
white candidate 62% making him the winner of the election. In
1969, the place ten race was three-way involving one black
against two whites. The black carried the black area with 42%,
The two whites (together) pulled about 83% of the white area's
vote. No run-off was necessary however because here one of the
whites received 59% of the total votes within the city. The 1971
election showed a corollary situation for place ten. Here, two
black candidates ran against a single white candidate. Together
the black candidates received 60% of the black area vote. The
white candidate received 68% of the vote from the white areas,
which was 63% of the city wide total. This, of course, made him
the winner without the necessity of a run-off. The Court feels
that it is this voting pattern which is the key factor to
understanding the dilution present in Dallas.
A description of Dallas political life would be incomplete
without reference to the non-partisan slating groups. Like so
* The Court also notes that participation by the black community i
political processes of the city has generally improved in the past few sears. In
other areas, particularly, responsiveness of Dallas to minority concerns,
improvement has been spectacular during this
believes however that post litigation changes in these regards are similar to
specifically rejected as to bearing on dilution
itself. oy v. oo 485 4 1297, 1307 (Sth Cir. 1973) (en banc). In
evalua new has
& = city presented, however, this
B-7
many large cities, partisan politics in the “party” sense of the
word does not exist. The Republican and Democratic Parties
simply do not field candidates. Instead, the politics surrounding
Dallas City Council elections turn on the influence of slating
groups. The slating group which has enjoyed dominance in the
sense that it has been extremely successful in getting its
candidates elected is the Citizens Charter Association
(hereinafter C.C.A.). The C.C.A. has as its express goal the
maintenance of good municipal government, specifically as
embodied in the council/ manager form. Testimony by one active
participant in the affairs of C.C.A., an ex-president, gave insight
into its functioning.‘
C.C.A. has enjoyed considerable success with its candidates.
Testimony shows that in the eight elections held since 1959,
C.C.A. endorsed candidates have won in 82% of the races
involved. This history shows that of seventy-five C.C.A.
endorsed candidates, sixty-four triumphed at the polls. This is an
85% success rate.
The record affirmatively shows that since 1907 only two blacks
have been elected to the Dallas City government. The first black
to be elected was the present Mayor ProTem, Mr. George Allen.
Mr. Allen testified for the plaintiffs in the first stage of the trial
and for the City at the remedy stage. His testimony is that he was
first elected to City Council in 1969, but only with C.C.A.
support. This support was said to have been the result of a
campaign bargain in the 1967 election to the effect that the black
support for C.C.A. endorsed candidates would be linked to
support for a Charter Amendment increasing the size of City
Council from nine to eleven and that one of the two new seats
* Uncontradicted testimony shows that CCA is an election year phenomenon
and is only concerned with Dallas council elections. During off election years
the association has no permanent governing body or officer except the
president. With the approach of a council election, the president initiates
activity by naming various election committees which in turn hold meetings
and select candidates. Historically, CCA grew out of a reform movement in
the 1930's which was aimed at correcting abuses of the old commission form
of government by infusing citizen participation into governmental affairs.
B-8
would go to a black person. This bargain was apparently kept by
all parties. The Charter Amendment was passed, the size of the
City Council was increased, and Mr. Allen was supported for a
position by C.C.A. and won in 1969 with 71% of the vote. His
Opponent in that election was also a member of the black race.
The other black person to be elected to City Council was also
endorsed by C.C.A. Mrs. Lucy Patterson ran in an all black
contest for place eight in 1973. She had a plurality in the general
election and went on to win in the run-off with 53% of the vote
total.>
The above-mentioned facets of the Dallas redistricting
question must be viewed in an historical context. Dallas, located
in the state of Texas, inherited by default some of this state's
history of official race segregation. There is evidence, however,
that Dallas also participated in this history of discrimination.
However unpleasant it is to face that history, it cannot be
avoided. Dallas’ participation in that history is before-the Court
in large measure by stipulation of the parties. A review of those
stipulations shows among other matters the following:
a. The original charter for the City of Dallas written in 1907
contained a section entitled “Segregation of the Races.” This
section was amended through 1952 and was carried forward as
part of the charter until it was repealed in 1968. This section
authorized the City Council to pass city ordinances providing the
use of distinct blocks, for the housing, for amusement, for
churches, for schools, by members of the “white” and “colored”
races,
b. In 1937 the City Council passed on ordinance regarding
separate spaces in commercial motor vehicles for white and black
’ The racial composition of the present city council is two blacks (one male and
one female), one Mexican-American (male) and eight whites (one of whom is
female). The Court notes this composition as being more indication that
circumstances have ch nged for the better since the institution of this lawsuit
and while of not the quantity to overcome the Court's finding of dilution,
these changes are again of consequence in considering the proper remedy in
this matter. See note 2, supra.
B-9
passengers. A penalty was established for those who rode in
spaces not designated for the race of the individual involved.
c. In 1942 the City Council adopted a resolution which
enumerated the requirements which a taxi cab owner must have
met before the cab would be permitted to carry Negro passengers.
d. In 1961 the City Council agreed to contract for the engaging
of ambulance service and burial of Negro paupers.
e. In 1973 the City of Dallas City Council recognized by
resolution that there is “unequal law enforcement, dual justice
and unequal treatment for the different segments of the
community and different races.” There are other similar
ordinances included by stipulation but these four will suffice for
example. There was additional testimony from several witnesses
concerning this history and the negative impact it made on the
black community generally and specifically on the political life of
that community.
Two currents make up the equal protection argument swirling
around reapportionment cases. The original *tream is the one
person, one vote concept. This principle of equal protection is
offended when some votes carry more weight than others.
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506
(1964). One person , one vote came to Texas local governments in
1968. Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct.
1114, 20 L.Ed.2d 45 (1968). Dilution is the other more recent
current. This concept involves election schemes conceived or
operated as devices to further racial discrimination and a
corresponding lesser degree of opportunity to participate in the
political process. Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct.
1858, 29 L.Ed.2¢ 363 (1971). The Supreme Court in recognizing
that multi-member districts inherently apply the one man, one
vote concept, stated that circumstances of a particular case may
operate to minimize or cancel out the voting strength of racial or
political elements of the voting population. Whitcomb v. Chavis,
supra, citing Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16
B-10
L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct.
498, 13 L.Ed.2d 401 (1965). The Fifth Circuit panel reviewing the
initial dismissal of this case on appeal outlines several factors by
which plaintiffs could show lack of participation in the political
process of the life of Dallas. Lipscomb v. Jonsson, Sth Cir., 459
F.2d 335 (1972).° Since that appeal, the Supreme Court has given
additional guidance to the circumstances which have a bearing
on the opportunity to participate. In Graves v. Barnes, 343
F.Supp. 704 (W.D.Tex. 1972), affd in part sub nom.; White v.
Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973),
Texas legislative reapportionment was under scrutiny. White
noted that the Supreme Court had entertained claims that multi-
member districts were “being used invidiously to cancel out or
minimize the voting strength of racial groups . . . [and] to sustain
such claims, it is not enough that the racial group allegedly
discriminated against has not had legislative seats in proportion
to its voting potential. The plaintiffs’ burden is to produce
evidence to support findings that the political processes leading
to nomination and election were not equally open to partici-
pation by the group in question, that its members had less
opportunity than did other residents in the district to participate
in the political processes and to elect legislators of their choice.”
White, supra, 412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324.
Looking at this standard, the Supreme Court observed several
factors upon which the three-judge court had predicated their
nolding that the existing scheme was invalid) Among these
factors was the history of official race discrimination which at
times touched the right of Negroes to vote. Other factors included
the number of blacks elected under the existing scheme and the
correlation between the endorsement of the white dominated
Slating organizations and electoral success. White, supra, at 755,
93 S.Ct. 2332, 37 L.Ed.2d at 324-25.
* These factors include a showing that minority residents are
ignored in selection of candidates; slating group operation combined with a
high correlation between endorsement and election, and the high cost of city-
wide campaigning. Lipscomb v. Jonsson, 459 F.2d 335, 339 (Sth Cir. 1972).
B-11
Plaintiffs’ ultimate claims in the case sub judice reduce to the
question of whether or not the electoral scheme for the Dallas
City Council operates to minimize or cancel out the voting
strength of racial elements of the voting population. This
question was considered with regard to a court approved
apportionment plan involving a parish school board and police
juries, wherein at large elections the juries were provided in a
Louisiana parish where the so-called racial minority commanded
a majority of the entire parish population. The Fifth Circuit
stated that the proper measure for measuring dilution of minority
voting strength is not population but rather access to the political
process. Zimmer v. McKeithen, 485 F.2d 1297, 1303 (Sth Cir.
1973) (en banc). The Court reviewed the Supreme Court
decisions dealing with dilution or restriction to access and high-
lighted the various factors which could contribute to the showing
of the fact of dilution. Included among these factors are:
1. a lack of access to the process of slating candidates;
2. the unresponsiveness of legislators to particular minority
concerns;
3. a tenuous governmental policy underlying the preference
for at large districting;
4. the existence of past discrimination in general which would
preclude effective participation in the election system.
Zimmer v. McKeithen, supra, at 1305.
Two recent cases by the Fifth Circuit illustrate some
ramifications of dilution. In Robinson v. Commissioner's Court,
Anderson County, 505 F.2d 674 (Sth Cir. 1974); a panel of the
Fifth Circuit considered dilution in the content of manipulation
of district boundaries, i.e., gerrymandering. There reapportion-
ment of the County Commissioner’s Court was considered for a
Texas county wherein whites comprosed approximately 75% of
the population and blacks 25%. The major city in Anderson
County is Palestine. The city’s racial composition was 74%
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white and 26% black. The greatest concentration of blacks
within the county was within one section of Palestine and 83%
of the population of this section was black. In this section of
Palestine approximately 26% of Anderson County’s total black
population resided. Anderson County is as are all Texas
counties, divided into four precincts for the purposes of
electing county commissioners. The redistricting scheme
under scrutiny in Anderson County was drawn in 1969. It divided
the black section of Palestine, Texas, into three separate
precincts. In other words, the black community was segmented
and divided for the purpose of electing County Commissioners.
The panel upheld a district court finding of dilution. It was frag-
mentation of what was otherwise a “cohesive voting community”
that was crucial to the finding of dilution. Robinson v.
Commissioner’s Court, Anderson County, supra, at 679.7 In
Reese v. Dallas County, Alabama, S05 F. 2d 879 (Sth Cir. 1974) (en
banc), the Fifth Circuit sustained a finding of dilution in an
apportionment plan which did not involve race. Here the
disparity was between rural and urban segments of the county’s
population. Dallas County, Alabama, is also divided into four
districts for the purpose of electing County Commissioners. The
district containing the City of Selma, Alabama, contained
approximately half of the total population for the county. The
three other districts divided the remainder of the population
unevenly. The plan involved at large elections with a resident
place requirement. In other words, for each of the four districts, a
candidate for that district place on the County Commissioner's
Court must reside within the district, although he was voted on at
large. All voters of Dallas County, Alabama, vote for all four
” The trial court in Robinson v. Comm'r Court, Anderson County, supra,
apparently found that the dilution present in that case was the result of a
purposeful scheme “designed precisely to dilute the black vote...” This Court
Stresses that in the case of the City of Dallas that there has been no evidence of
any design or purposeful intent to dilute the vote of any of its minority
citizens. Rather, it is in the operation of the exclusive at-large election plan in
combination with the existence of a historical pattern of discrimination which
supports the finding of dilution
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commissioners and only one of the candidates residing in each
district can be elected. With this election scheme, dilution was
found with regard to the urban voters of Selma. The Selma voters
were “forbidden to elect resident commissioners in proportion to
their numbers . . . Unlike residents of Selma the other voters in
Dallas County [Alabama] can choose their proportional share of
the representative body, from among .. . candidates who can...
be expected to share their interests.” Reese v. Dallas County,
Alabama, supra, at 883. In other words, the scheme involved a
minimizing or cancelling out the voting strength of a group that
had an identifiable set of common interests. In Reese, the groups
with an identifiable set of common interests were divided along
rural and urban lines. In the instant case the landmarks of the set
of common interest are racial.
From these two cases it can be seen that the fact of dilution can
be present in a variety of voting schemes, even when the one
person, one vote concept is adhered to. Dilution was found with
single-member districts when a concentrated group with
common interests was split up diffusing its strength over three
districts. Robinson v. Commissioners Court, Anderson County,
supra. Likewise, in Reese, with an at-large scheme, dilution
occurred where candidates were required to be residents of
unequally populated districts and the districts had obvious
distinctions in “identifiable sets of common interests.” Reese v.
Dallas County, Alabama.
Based on these standards, it is clear that the present system of
requiring all members of the Dallas City Council to run at-large
on a city wide basis involves dilution. In this regard, the Court
believes that two factors are of particular significance. These are
the existence of past discrimination in general, which precludes
effective participation in the electoral system and a customary
lesser degree of access to the process of slating candidates than
enjoyed by the white community. These factors are crucial when
viewed in the historical context of the city and state.*
® See, however, notes 2 and 4, supra.
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The mere existence of a definable minority area wherein some
90% of all black residents in the city live, the Court believes, is
itself a lingering effect of past official race discrimination. There
appear to be other lingering effects and these include the lesser
degree of opportunity available to black residents to
meaningfully participate in the election process in the City of
Dallas. This lesser degree of opportunity is best shown by the
voting pattern I have found to exist for the city:
Black voters, that is, those residing in the inner city area,
vote for black candidates, giving them at least a plurality,
and usually a majority of their votes, and the white
community, the non-minority voter tends not to vote for the
black candidates.
This is dilution. In other words, when all members of the city
council are elected at large, the significance of this pattern of
blacks carrying their own areas and yet losing ona city wide basis
is that black voters of Dallas do have less opportunity than do the
white voters to elect councilmen of their choice. Another shadow
of dilution is found in the high correlation between endorsement
by the C.C.A. and victory city wide. Meaningful participation in
the political process must not be a function of grace, but rather is
a matter of right. Graves v. Barnes, 343 F.Supp. 704, 726 (W.D.
Tex. 1972), aff'd in part sub nom. White v. Regester, 412 U.S.
755, 93 S.Ct. 2332, 37 L.Ed. 314 (1973).
The Fifth Circuit in Zimmer v. McKeithen, supra, noted
several factors to be considered in establishing dilution. As noted
above, one of those factors is responsiveness of legislators to
particular minority concerns. Dallas presented much evidence on
the city’s present responsiveness. It is the Court's view that if
present responsiveness of the city to the particular interests of the
black community (or for that matter the brown or white
communities), were the sole issue which determined dilution,
then I have little doubt that there would be no finding of
invidious discrimination. There has been ample demonstration
of the fact that Dallas is acting for the needs of all its citizens—
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parks, street services, police and fire protection, transportation,
equal employment opportunity, fair housing and community
relations. In these areas and more I find the city to be acting ina
responsible manner—in a responsive manner. This present
responsiveness, however, is not enough to justify the present
exclusive at-large voting plan when weighed against the other
factors which I have found.
III.
On January 17, 1975, I made preliminary oral findings of
dilution which rendered the exclusively at-large system of voting
unconstitutional. After being given time to consider its legislative
responsibilities, the city offered its plan and plaintiffs in response,
offered two proposals which they felt would be an effective
remedy for the dilution which the Court had previously found.
The Mexican-American intervenors as permitted by the Court’s
order of December 7, 1974, participated in this hearing and
elicited testimony as to the effect that the city’s plan and the
plaintiffs’ two plans would have on the Mexican-American
voting population of Dallas. Additionally, evidence was heard on
behalf -of some dissenting members of plaintiffs’ class who
supported the general concept of an exclusive single-member
district plan, but disagreed with the implementation of this
concept as exemplified by plaintiffs’ two proposals.
The election scheme presented by Dallas is a combination,
single-member district and at large voting plan. It provides for
eight single-member districts and three at-large positions
including the mayor (hereinafter sometimes called “city’s plan”
or “eight/ three plan”). The eight council persons elected from the
respective eight single-member districts must reside within the
district they represent and are to be elected by a majority vote of
the residents of their district. The three at large seats have no
residency requirement and are elected by a majority vote of all
votes within the entire city. One of the at-large council seats is
designated as mayor. The district boundaries are essentially the
B-16
same as the resident district boundaries under the exclusive at-
large voting plan.’ Plaintiffs presented two alternative plans.
Their Plan D provides for ten single-member districts and a
mayor who would be elected at large. Each council person would
reside in and be elected by a majority vote of his respective
district. The mayor would have no residency restriction
(hereinafter “ten/one plan”). Plaintiffs’ alternate plan provides
for each of the eleven council members to be elected from a
district and would have the mayor selected by the council
members themselves from one of their number (hereinafter
“eleven/zero plan”).
The Court considered each of the three plans presented, with
the spirit of the Supreme Court’s mandate in Chapman v. Meier,
420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975) in mind. That is,
that reapportionment is primarily the responsibility of state
legislative bodies and not the federal courts. In the case at bar, an
existing method of electing city council was found to be
constitutionally defective. That plan was declared invalid and
this Court then gave the City of Dallas an opportunity to perform
its duty to enact a constitutionally acceptable plan. I find that it
has met that duty in enacting the eight/three plan of electing
council members.
The initial question encountered when considering the city’s
plan, is whether or not any plan providing for some at-large
voting would, under the circumstances of this case, pass
constitutional muster. This is especially true when it is features of
% The population variance of the eight districts is not in issue here. The district
boundaries were redrawn in 1972 partly in response to this litigation.
Plaintiffs’ original claims included allegations of unproportional districts and
population inequality. After the City Council redrew the district lines
plaintiffs subsequently abandoned these contentions. The Court finds that
there is substantial equality of population among the eight districts presented
by the city’s plan. Upon its initial presentation to the Court, the city’s plan met
objection as to the lack of precision in district boundaries. The city
subsequently tendered its plan with modifications to meet these objections.
See, defendant's exhibit No. 95 showing census tract composition of districts
and defendant's exhibit No. 96 showing so-called field note description of
boundaries.
B-17
the at-large scheme which contributed to the initial finding of
dilution. The starting point for such an examination is the
observation that while single-member districts are not consti-
tutionally mandated as such, they are definitely the preferred
approach. Chapman v. Meier, supra; Connor v. Johnson, 402
U.S. 690, 91 S.Ct. 1760, 29 L.Ed2d 268 (1971). This preference
may yield, however, where particular circumstances justify a
variation. The particular circumstances which would justify such
a variation are twofold. The first situation is where “significant
interests would be advanced by the use of multi-member districts
and the use of single-member districts would jeopardize
constitutional requirements . ..” Zimmer v. McKeithen, 485 F.2d
1297, 1308 (Sth Cir. 1973) (en banc). The second situation
contemplates use of multi-member (or at-large) districts where,
they “afford minorities a greater opportunity for participating in
the political process. . . .” Zimmer, supra, at 1308. I conclude that
the city’s plan falls squarely within the second situation suggested
by the Fifth Circuit in Zimmer, supra, and permeates to a large
extent the first area of circumstances described therein. This
conclusion is based upon a consideration of the impact that any
plan would have on the Mexican-American citizens of Dallas,
intervenors in this cause,’ and the legitimate governmental
interest to be served by having a city-wide viewpoint on the City
Council. Chapman v. Meier, 420 U.S. 1,95 S.Ct. 751,42 L.Ed.2d
766 (1975); Fortson v. Dorsey, 379 U.S. 433, 437-438, 85 S.Ct.
498, 13 L.Ed.2d 401, 404 (1965).
The Mexican-American population of Dallas is
10 Mexican-A merican intervenors presented no plan as such, which in their view
would alleviate their situation. Generally, they supported the single-member
district concept, but testimony clearly showed that in order to have a single-
member district plan in Dallas wherein Mexican-American citizens
constitute a majority in a single-member district at least twenty districts
would be required. Other suggestions included some form of cumulative
voting for council seats, concentric districts around the city and
noncontiguous council districts. The Court believes that these suggestions are
completely void of merit and would do nothing constructive for either the
nena emcee aanaceie ademas aire iar nrg
B-18
approximately 67,073, representing some eight to ten percent of
the total. The 1970 census data reflects the eight percent figure.
Testimony by plaintiffs’ expert and others indicate that Mexican-
American census data tends to be understated for a number of
reasons, primarily because of the lack of precision in determin-
ing who is a Mexican-American.'! Undisputed is the fact that the
Mexican-American citizens are diffused and spread out through
all areas of the city. In their case, geographic assimilation has been
in large measure achieved. Within the limits of Dallas there are
only four census tracts which have a majority Mexican-American
population, that is, over fifty percent. The testimony shows that
Mexican-Americans have, however, endured some amount of
unofficial race discrimination, which has in the past existed in the
State of Texas and the City of Dallas. Plaintiffs’ expert testified
in essence that Mexican-Americans are restricted in their access
to the political process but that the restrictions here are to a lesser
degree than that for blacks. Witnesses from the Mexican-
American segments of the Dallas population, of course, said that
the discrimination suffered by them was just as pernicious as any
suffered by the black population. The dissenting plaintiff agreed
that the Mexican-Americans have suffered some degree of politi-
cal discrimination in the City of Dallas. The Court finds that
Mexican-American citizens of Dallas have suffered some restric-
tions of access to the political processes within the city but
that this restriction does not amount to present dilution. In the
case of the Mexican-American citizens, the restrictions involved
are difficult to precisely evaluate because of the diffuse residence
pattern of the Mexican-Americans throughout the city and the
population totals involved. What is not difficult to ascertain is
the fact that Mexican-Americans do have a significant interest in
't These are technical matters of census classification. For example, in some
instances being a Spanish surnamed citizen is a basic standard; other
considerations may be whether or not the nerson speaks Spanish in the home
or whether Spanish is the native lanzw.ge of the person. Apparently, the
totals used by the city even include a very small number of citizens who are of
Puerto Rican origin.
B-19
the subject matter of this litigation and the Court finds that
intervenors are an identifiable minority group with the constitu-
tionally protected right not to be invidiously excluded from par-
ticipation in the political life of Dallas. White v. Regester, 412
U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314, 325-26 (1973). The re-
striction of access which is present for the Mexican-Americans is
of a similar nature to that this Court has found to exist for the
black voters of Dallas, but it differs in at least two aspects. In the
case of black voters, one factor in establishing dilution was the
operation of white dominated slating groups; for Mexican-
American voters, any restriction of access caused by slating
group operations in the at-large system would not be alleviated
by the institution of exclusive single-member district voting, in
and of itself. Additionally, the slating group operations, while in
some respects restricting access for Mexican-American citizens,
also permit them as a group to operate in a “swing-vote” manner
and give them opportunity they might not otherwise have had.
On balance, | conclude that Mexican-American citizens do not
suffer from present dilution of their voting strength, and in fact.
benefit to a significant extent from at-large voting. C/., Bradas v.
Rapides Parish Police Jury, 508 F.2d 1109 (Sth Cir. 1975). This
Court is unwilling to penalize the Mexican-American commu-
nity for its successful efforts to date in assimilating to the degree
they have into aspects of the life of Dallas.'
In an exclusive single-member district plan the Mexican-
Americans must, because of their lesser numbers, form voting
coalitions with either black or white voters; that is, because of
their diffuse resident pattern, Mexican-Americans will always be
a minority group with either a black or white majority. They are in
a double-bind situation. The Court finds that an exclusive single-
'2 Compare this assimilation with the high concentration of black citizens
residing in the inner city area. Testimony suggests that single-member district
voting tends, in some cases, to amplify segregated housing patterns. It would
be indeed ironic if a remedy for dilution of voting strength resulted in a major
impediment to minority citizens enjoying their constitutional rights. See,
page 5, supra.
B-20
member district plan would do nothing to increase the oppor-
tunity for Mexican-American participation in the political life of
Dallas and might tend to decrease it. Because of the voting
patterns in Dallas, i.e., black voters tending to vote for blacks,
white voting for whites, the browns will invariably look to
coalitions with either blacks or whites in order to maintain
political viability. This is a political fact of life for the Mexican-
American voters in the City of Dallas. I find that presently
Mexican-Americans have to some degree entered into the policy-
making structure of the C.C.A. and other slating groups, and
have their voices heard on the highest levels of these organi-
zations as well as within the city government. In other words, the
Mexican-Americans have entered to some intent into the
political life of Dallas through the present at-large system. At-
large voting may operate in part as a restriction of access for
Mexican-Americans as it has been for blacks. At the same time
however, it is clear that at-large voting offers features which
allow greater participation in the political processes within
Dallas for Mexican-American voters, that would be unavailable
in an exclusive single-member district voting plan.
Significant interest of both black and Mexican-American
segments of the voting popula’ a wil! be advanced when the
city’s plan is implemented ight single-member districts will
permit black voters a greater degree of access and participation in
the political process of Dallas. Likewise, the eight single-member
districts will, in combination with the three at-large positions,
enhance the opportunity of the Mexican-American citizens of
Dallas, to utilize their voting potential in a significant new way,
while not undermining the degree of participation they have
enjoyed under the exclusive at large voting plan. Mexican-
American citizens will, under the eight/three plan, have a
heretofore unavailable flexibility and greater opportnity to
participate in the political life of Dallas. Zimmer v. McKeithen,
supra, 485 F.2d at 1308. Any redistricting plan which did not
B-2!
consider the interest of the Mexican-American community
would be suspect from a constitutional point of view. Here we
deal with two separate minority groups, each with a significant
interest.'? This interplay of district minority interest is markedly
similar to the “singular combination of umique factors” which
justified a multi-member apportionment plan in Mahan v.
Howell, 410 U.S. 315, 333, 93 S.Ct. 979, 35 L.Ed.2d 320, 335
(1973)."4
There is another consideration which supports some measure
of at-large participation in Dallas municipal government. That is
the need for a city-wide view on the part of council. The council
has responsibility for policies which affect the city as a whole, as
well as those which affect specific geographic and demographic
parts. Several members of the present council and the present
City Manager presented the view that having some members of
the City Council elected on a city-wide basis would be desirable.
This desire for some at-large seats was said to be because of the
need for a non-sectional viewpoint in resolving matters such as
zoning (the Council functions as a zoning appeal board),
budgetary considerations (the Dallas City budget is formulated
on a city-wide basis) and city planning. Concern was expressed
that exclusive sectional or district voices being heard on these
matters would be detrimental to the city’s interest as a whole. The
Court finds that these interests are of significance in considering
any remedy which might be advanced. Chapman v. Meier, supra,
420 U.S. at 20, 95 S.Ct. 751. That there is some need for a city-
wide interest to be maintained in the government of Dallas is
admitted by plaintiffs in their presentation of the ten/one plan.
Here, as noted before, one council seat, designated as mayor, is
elected city-wide. The evidence is controverted on the point of
3 v. Meier, 420 U.S. at 19, 95 S.Ct. 751 where there
ee any pl, onlin plan affecting different minor-
ity groups differently.
4 All factions in this lawsuit provided the Court with testimony from black.
white and Mexican-American citizens in support of their particular plan(s).
B-22
whether or not the mayor of Dallas is merely a ceremonial mayor
with essentially council duties. What is undisputed is that the
mayor does have the same council duties as any other council
member, and to that extent, he may be considered just a
councilman. So it appears that it is merely a question of degree as
to how much city-wide representation on these legitimate issues is
to be present; three as with the city’s plan, or one with the
plaintiffs’ ten/one plan. The Court believes and so finds that
there is a legitimate governmental interest to be served by having
some at-large representation on the Dallas City Council; that this
governmental interest is the need for a city-wide view on those
matters which concern the city as a whole; e.g., zoning, budgets,
and city planning; and that three at-large members do not render
the city’s plan constitutionally infirm.’ Chapman v. Meier,
supra; Fortson v. Dorsey, supra. Furthermore, as the Supreme
Court has recognized, at-large representation may be of benefit
to all persons of the area from which the particular legislator is
elected. “{s]ince . . . [the]. . . tenure [of the legislator] depends on
the county-wide [in our case city-wide] electorate, he must be
vigilant to serve the interest of all the people in the county [city],
and not merely those people in his home district.” Fortson v.
Dorsey, 379 U.S. 433, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, 404
(1965). The case sub judice presents just this type of situation
wherein at large representation will be of significant benefit
because of the particular nature of the city-wide interest to be
served. '*
15 Budget and services certainly do not stop at district boundaries. Other areas
of particular concern for Dallas as a whole include downtown revitalization
process. What the Court is attempting to avoid is approving any remedy
which does not, on balance, enhance constitutional opportunities for all
citizens of Court is particularly concerned with the prospect of
district sectionalism which usually occurs im 2n exclusive single-member
B-23
. The demographic pattern of the eight districts in the City’s plan
is:
Population Deviation Percentage of
Council Total from Mean A i
cas Population 105,551 a aden
105,599 +.00045 2.08 7.
2 105,529 ~.00020 fey aoe
3 105,759 +.00197 5.96% 7.00%
4 105,676 +.00118 3.63% 3.20%
5 105,433 -.00112 0.26% 10.60%
6 105,604 +.00050 73.60% 7.20%
7 105,353 -.00196 0.40% 5.00%
8 105,448 -.00098 87.30% 3.44%
There was some initial concern by the Court by the relatively high
concentration of black voters in District 6 (73.60%) and District
8 (87.30%). This concern was directed to the question of whether
this concentration presented cluster dilution. ' It is relatively easy
to find cluster dilution where it can be shown that district lines are
drawn with a purpose or intent to racially discriminate. Wright v.
Rockefeller, 376 U.S. 52,84 S.Ct. 603, 11 L.Ed.2d 512, 515(1963);
Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512, 515
(1964); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.
Ed.2d 110 (1960); Howard v. Adams County Board of Super-
visors, 453 F.2d 455, 457 (Sth Cir. 1972).'* In this case, however,
the evidence is clear that racial gerrymanoering was not the pur-
pose or intent of the district lines formulated in 1972 and readopt-
ed by the city as a result of this litigation.'® I find that the eight
'’ Compare with fragmentation dilution as presented in Robinson ¥
Court, Anderson County, 505 F.2d 674 (Sth Cir. 1974). acer
" See, note 7, supra.
See, note 9, supra.
——— ee
B-24
districts of the city’s plan follow natural and rational boundaries
and that no gerrymandering is present. Generally, the boundaries
of each district are major thoroughfares, rivers, creeks, or city
limits. For example, a significant portion of the boundary be-
tween Districts 4 and 5 (two “white” districts) is Northwest
Highway (Loop 12). Likewise, a good part of the district line he-
tween Districts 5 and 7 (again two white districts) is the G.C. & S.F.
Railroad right-of-way. The Trinity River is the district line sepa-
rating Districts 7 and 8 (a “white” and a “black” district respect-
ively); the river also separates two “black” districts, 6 and 8.
Finally, the boundary between Districts 6 and 7 (a “black” and a
“white” district) is in large measure, White Rock Creek. The only
possible factual situation presented by the evidence which could
support a finding of racial intent in drawing district boundaries is
the percentages of minority voters contained in each district. In
this case I find that although the percentage of black voters con-
tained in Districts 6 and 8 is somewhat high, the concentration in
and of itself does ot amount to dilution of the black vote.”° The
Supreme Court encountered a similar situation in Wright v.
Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964).
Plaintiffs in that case argued for a finding of racial intent in
drawing boundaries and attempted to show that it “was
impossible to have districts . . .[as presented there] . . . unless they
were drawn with regard to race’. . .” Wright v. Rockefeller,
supra, at 54, 84 S.Ct. at 604, 11 L.Ed.2d at 514. There were four
districts involved in Wright. One was 94.9% white. One was
86.3% black and Puerto Rican and two were approximately 72%
2 It is apparent that different district lines could be drawn under an eight / three
plan to achieve different proportions of minority population. In fact, city
const considered and vletnd os eiemiaties GaRtn aioe
black voters a majority in three districts (one with approximately 66%, one
with 62% and one with 61%). There was some testimony on what constitutes a
“safe” district, but this Court is not concerned with safe districts, only con-
stitutional ones. Whitcomb v. Chavis, 403 U.S. 124, 156-60, 91 S.Ct. 1858,
29 L.Ed.2d 363, 383-85 (1971); Turner v. McKeithen, 490 F.2d 191, 197 n. 24
(Sth Cir. 1973). This Court sees no impediment to council drawing different
district boundaries after the next scheduled election and in fact, there may
well be under Chapter 4, Section 5 of the Dallas City Charter, an obligation of
council to periodically review district boundaries.
B-25
white. The Court held that the plaintiffs in that case failed to
show that the district lines were a product of a “state contrivance
to segregate on the basis of race... .” Wright v. Rockefeller,
supra, at 58, 84 S.Ct. at 606. There has been much controverted
testimony in the present cause over how best to draw district
lines, whether with an eight/three, ten/ one, or eleven/zero plan.
Dallas presented testimony from citizens of the black and
Mexican-American community saying that the city’s plan was a
plan which would allow minority access to the political process in
a meaningful manner. Plaintiffs’ witnesses sharply disputed this
testimony. The dissenting plaintiff in turn offered evidence
tending to show that both of plaintiffs’ plans fragmented the vote
of South Dallas, an area which had many unique and common
concerns for the black community.?! This testimony led the
Court to fully comprehend that “there is no agreement on
whether the political interest of a minority group are best
maximized by an overwhelming majority in a single district, bare
majorities in more than one district or a substantial proportion in
a number of districts. ...” Turner v. McKeithen, 490 F.2d 191,
197 n. 24 (Sth Cir. 1973). I find that in Dallas, the constitutional
as well as the political opportunity of both minority groups
affected are best maximized by the city’s plan. This Court is not
constitutionally required to see that any particular number of
“safe” seats are provided for either black, brown or white citizens
of Dallas. What is required is an apportionment plan that does
not dilute, minimize, or cancel out the voting strength of any
group. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d
314(1973). Any plan must provide for equal access to the politic-
al process for all citizens of Dallas. It is the duty of the city’s
2! Plaintiffs’ expert is wnite and was severely criticized by the members of
plaintiffs’ class who opposed the ten/one and eleven/zero plans. The
lines. See, Robinson v. Commi'nr Court, pr sante Iaahin S05 F.20674¢5:h
Cir. 1974), for an example of fragmentation of the black vote. The Court finds
that the city’s plan best preserves the integrity of the area known as South
Dallas, which has an identifiable set of common interests.
B-26
legislative body to come forward with a plan that will provide
this access, and I find that the City of Dallas has met its
obligations in coming forth with its eight/three plan.
This Court believes what the Supreme Court has said time and
time again in reapportionment cases regarding the
responsibility of state legislative bodies to reapportion
themselves. “{[R]Jeapportionment is primarily the duty and
responsibility of the state through its legislature or other body
rather than of a federal court... .” Chapman v. Meier, supra,
(citing Reynolds v. Sims, 377 U.S.'533, 84 S.Ct. 1362, 12 L.Ed.2d
506 (1964); Maryland Committee v. Tawes, 377 U.S. 656, 84
S.Ct. 1429, 12 L.Ed.2d 595 (1964)]. I cannot reemphasize this point
too strongly. The Supreme Court in Chapman v. Meier, supra,
remanded that cause with a high hope that the North Dakota
legislature would accept its duty to enact a constitutionally
acceptable reapportionment plan. Only then, if the legislature
failed in that task, would the responsibility fall to the federal
courts.
Testimony shows that the eight/three plan was not a hasty or
ill-considered one. The Dallas City Council has had many
redistricting plans before it in the last two or three years. Various
citizen groups have had opportunities from time to time to voice
their opinions on general types of apportionment plans. The
members themselves have offered council several redistricting
plans during the past two years. The Court finds that the city’s
plan was merely one of many which has been before the City
Council for some time, and not one which was hastily conceived
merely for the purposes of this litigation.
The Court is not unmindful of its role in apportionment cases.
Absent particularly pressing circumstances justifying at large
voting schemes, I would not hesitate to approve only single-
member districts. Connor v. Johnson, supra. This would be
especially true if there had been no history of at-large voting in
Texas and in Dallas. | find, however, that at-large voting,
B-27
especially on the municipal level has been an integral part of
Texas local governments and that at large voting schemes have
their genesis in reasons other than those racially motivated. In
other words, this Court is not forcing at-large voting on the
citizens of Dallas with its acceptance of the eight/three plan
because Dallas has had at large voting since at least 1907.22 There
is a preference for single-member districts in considering for
constitutional purposes apportionment plans. However, at-large
plans have never been declared constitutionally invalid per se.
Connor v. Johnson, 502 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268
(1971); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.
Ed.2d 363 (1971). I, too, decline to hold that a plan which
provides for some at large representation is in itself constitu-
tionally defective where it was only certain aspects of the city’s
exclusively at large plan which rendered it constitutionally
impermissible. Lucas v. Colorado General Assembly, 377 U.S.
713, 731, 84 S.Ct. 1459, 12 L.Ed.2d 632, 644 n. 21. Those defects
are eliminated by the city’s eight/three plan. In Dallas, under the
factual situation presented here, neither all single-member
districts or exclusive at-large voting offers the balance which is
necessary so that all citizens may have equal opportunity of
access to the political process. Both plans offer advantages to
each minority group as well as to the white majority. The
eight/ three plan allows the benefits of both schemes without the
potential for mischief which is present under each exclusive plan.
At the close of testimony on February 8, 1975, I made findings
which approved the city’s plan as constitutional. Accordingly, |
ordered that the eight/ three plan as had been offered by the city,
be instituted in time for the April 1975 city council elections, and
that the election proceed on the scheduled date. Upon request
from the City, the Court modified those provisions of the Dallas
City Charter which provide that council candidates have
2 Compare, Chapman v. Meier, supra, where the District Court formulated its
for the and that !
own plan North Dakota legislature state had no tradition for
B-28
petitions containing signatures from three hundred individuals
qualified to vote for the proposed candidate, to allow petitions
containing signatures from any three hundred qualified voters
residing in the City of Dallas be sufficient for candidacy. This
modification for the April 1975 election only.
On February 21, 1975, plaintiffs filed their motion for
attorney’s fees and costs. This motion was later supported by
appropriate affidavit and on February 27, 1975, attorneys for
Mexican-American Intervenors filed their motion on this matter.
The City of Dallas filed its opposition to these motions on March
14, 1975. The Court has the matter of attorney’s fees under
advisement and will make its ruling in a supplement to this
opinion.
ORDER
The Court has previously declared the City of Dallas’
exclusively at-large voting scheme for Dallas City Council consti-
tutionally invalid and approved a combination single-member
district, at large voting plan. The combination plan was initially
proposed by defendants as members of the Dallas City Council,
after the Court afforded them an opportunity to do so. On March
25, 1975, findings of fact and conclusions of law were entered by
the Court. That opinion and order is adopted and incorporated
for all purposes in this order concerning attorneys’ fees and costs.
In the March 25, 1975, opinion I kept under advisement the
matter of attorneys’ fees and costs. Now, having reviewed the
entire record in this matter and considering the briefs of the
respective parties I conclude that certain costs should be allowed
plaintiffs and that an award of attorneys’ fees is inappropriate
and will not be allowed.
Plaintiffs and Intervenors moved for an award for attorneys’
fees and costs initially contending that they were entitled to such
an award under two theories.” First, because they were vindi-
23 Intervenors, representing the Mexican-American citizens of Dallas
participated only in the remedy phase of this cause after the old exclusively at
large voting plan had been declared invalid. See, this Court's Order of March
25, 1975.
B-29
cating significant rights for the citizens of Dallas in eliminating
an unconstitutional voting scheme, they were acting as private
attorneys general and thus entitled to an award. And, second, an
award is proper because of the defendants’ bad faith in the
conduct of this litigation.
The private attorney general theory has of course been recently
foreclosed. In Alyeska Pipeline Service Company v. Wilderness
Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the
Supreme Court extensively reviewed the conceptual and
historical structure for awards of attorneys’ fees under the private
attorney general theory, and concluded that in the absence of a
specific statute, it would be improper for the District Court to
award attorneys’ fees on this basis. Significantly, the Supreme
Court expressly disapproved the authorities sustaining private
attorney general awards. These authorities are of course the same
ones originally cited by movants in support of their motion.”4
Plaintiffs now strongly advance the alleged bad faith of
defendants to support an award of attorneys fees. There is no
doubt but that a finding of bad faith or obdurately obstinant
condact on behalf of defendants would support an award of
attorneys’ fees. Sims v. Amos, 340 F.Supp. 691, 694 (M.D.Ala.
1972) (Three Judge Court) aff'd. sub nom. Amos v. Sims, 409
U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). In this case
however, I find there is simply no factual basis to justify a finding
of bad faith.
This litigation has been compiex and protracted. Conduct of
defendants and their counsel was at all times exemplary and most
helpful to the Court as the case developed over its numerous
% Brandenburger v. Thompson, 494 F.2d 885, 890-93 (9h Cir. 1974)
(concurring opinion) is also of interest. Here, it was observed that the now
of cases, which sustained an attorney's fee award predicated ona
private attorney general concept, also had strong elements of bad faith
B-30
contours.?5 Very few of the matters before the Court were simple
or easy to unravel. Many legitimate factual and legal issues were
properly raised by defendants for consideration. None can be
said to have been frivolous or completely without merit. Much of
the factual framework developed at the first part of the hearing
on the constitutionality of the old exclusively at large voting plan,
assisted the Court in the remedy portion of this litigation.
Defendants’ contentions that the old plan met constitutional
standards did not survive plaintiffs’ attack. Many of these same
contentions, however, supported the Court's later acceptance of
the eight-three, mixed plan which was formulated by the City.?6
Failing to prevail does not amount to bad faith. Compare Doe v.
Poelker, 515 F.2d 541 (1975), wherein the Court noted that the
history of that litigation revealed a “wanton, callous disregard for
the constitutional rights [of plaintiffs therein]... .”
The voting system of Dallas is established by the City Charter
which was adopted by a majority vote of the voters of the City.
Changes to the voting system necessarily are changes to the
Charter and absent a judicial determination of unconstitution-
ality, such changes can only be effected by a Charter Amend-
ment adopted by the voters.
It is a City Charter provision which was at issue here, not a
mere ordinance. A majority vote of the registered voters of the
25 This is not to detract from the conduc: of movants in this suit. It is, however,
defendants’ bona fides which is now at issue.
2 Council member defendants urged, as did Mexican-American intervenors in
the remedy hearing, that any plan consider the needs of each distinct minority
in the City. I feel that this attitude alone, negates any finding of bad faith on
the part of defendants and tends to show the merits of the City’s claim of re-
sponsiveness. See also, this Court’s Order of March 25, 1975, at pages 16 and
22-23. This Court's finding of dilution was predicated largely upon the
realities of housing and voting patterns existing within the City when viewed
in an historical context. It is difficult to deny the past, and the defendants, I
believe, recognized the past and defended on the basis of present
responsiveness. While they did not prevail, | cannot say that the defensive
positions were insignificant or advanced for dilatory purposes. As I have
herein stated, I do not believe that merely losing on the merits necessarily
implies bad faith.
B-31
City is required to change the Charter. The members of the City
Council, cannot, on their own modify the Charter to alter the
voting scheme. Council’s role is to propose changes to the
Charter by proposed amendment which in turn is approved or
rejected by the voters of Dallas. In this context, after the
initiation of this suit, in 1973, Council did propose a Charter
Amendment which would have provided, inter alia, for an
enlargement of Council and for a mixed, at large, single member
district voting plan. This scheme of enlargement and modifi-
cation of the voting system was overwhelmingly rejected by both
black and white voters. From this factual vantage point, I do not
believe that bad faith or obdurately obstinate behavior by
defendants has been demonstrated in any way. If defendants had
attempted to unilaterally change the voting plan, absent a vote of
the people or a ruling from the court with proper jurisdiction that
a provision of the Dallas City Charter was constitutionally
invalid, they would have been acting unlawfully. Compare, Sims
v. Amos, supra, and cases cited therein for examples of bad faith.
In Sims, the Court noted that the history of that litigation was
“replete with instances of the Legislature’s neglect of and even
total disregard for, its constitutional obligation to reapportion. .
..” Sims v. Amos, supra, 340 F.Supp. at 693-94. There as in other
reapportionment cases the legislative body had the power and the
obligation to reapportion. In the instant case, it is apparent that
the Dallas City Council could not have lawfully changed the
voting scheme on its own. It lacked the authority todo so. Where
there exists a duty and the existing power of an entity to
reapportion itself and that entity wilfully and repeatedly refuses
to do so, as was evidenced in some legislative redistricting cases, I
agree that those circumstances go far to establish bad faith.
Where however there is an absence of inherent power to effect
such an apportionment, different circumstances are presented.
There is absolutely no basis for concluding that defendants have
presented their case arbitrarily or capriciously. No racial
B-32
motivation or intent has been found. In such circumstances, no
bad faith exists.
Advancing serious defenses and litigating contested facts is not
bad faith. Defendants were in part unsuccessful in litigating
complex issues. When the Court announced its finding of
unconstitutionality, defendants were given the opportunity to
come forward with a constitutional plan. They promptly
submitted their mixed, at large, single member district
eight/three plan. I have found that this plan meets constitutional
standards. Chapman v. Meier, 420 U.S. 1,95 S.Ct. 751, 42 L.Ed.
2d 766 (1975). I believe that this presentation of a constitutional
voting plan by City Council to be one more demonstration of
defendants’ good faith. Wallace v. House, 515 F.2d 619 (Sth Cir.
1975) (concurring opinion).
Plaintiffs, having prevailed in their suit to have the old at large
voting scheme declared constitutionally infirm are entitled to
their costs as allowed by law. 28 U.S.C. § 1911 et seg. Rule 54(d),
Fed.R.Civ.P. The following enumerated costs as shown on
plaintiffs’ Bill of Cost filed February 21, 1975, will be allowed.
ot PY rrerre ity ori tie To $ 40.00
Fens OF tid DERE. 's.. vcicine ob coc ccveces cepedceoes 10.12
Fees and Disbursements
Ser PORES odin cannes cdnececesseesesnsenss 1,106.97
RSet CRT cd Nob does sc onbevcescoanenen 224.90
Fees for Exemplification
and Copies of Papers ...........-eeeeeeeeeees 104.50
Costs Incident to Taking
of Depositions ...... 6.6... cece eee eee ee eees 1,683.38
VOCAL 6 sek cies a hi ident endeae $3,169.87
The Court feels that the fees requested for plaintiffs’ expert
witnesses are not properly taxable. Henkel v. Chicago, St. Paul,
M. & O. Ry., 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386 (1932).
It is so ORDERED.
C-1,
APPENDIX C
United States Court of Appeals
For the Fifth Circuit
October Term, 1976
No. 75-2605
D.C. Docket No. CA-3-4571-E
ALBERT L. LIPSCOMB, ET AL..,
Plaintiffs-Appeliants
Appellees,
versus
THE HONORABLE WES WISE, Mayor of the
City of Dallas, ET AL., ETC.,
Defendants-Appellees,
versus
ADELFA B. CALLEJO, ET AL.,
Intervenors-Appeilants.
Appeals from the United States District Court for the
Northern District of Texas
Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.
JUDGMENT
This cause came on to be heard on the transcript of the record
from the United States District Court for the Northern District of
Texas, and was argued by counsel;
ON CONSIDERATION WHEREOF, It is now here ordered
and adjudged by this Court that the order of the District Court
appealed from, in this cause be, and the same is hereby, reversed;
and that this cause be, and the same is hereby remanded to the
said District Court in accordance with the opinion of this Court;
It is further ordered that defendants-appellees pay to plaintiffs-
appellants appellees and intervenors-appellants, the costs on
appeal to be taxed by the Clerk of this Court.
May 9, 1977
Issued as Mandate: August 8, 1977
D-!
APPENDIX D
Albert L. Lipscomb, et al., Plaintiffs-Appellants Appellees,
v.
The Honorable Wes Wise, Mayor of the
City of Dallas, et al., etc.
Defendants-Appellees,
v.
Adelfa B. Callejo, et al.,
Intervenors-Appellants.
No. 75-2605.
United States Court of Appeals,
Fifth Circuit.
May 9, 1977.
As Modified on Denial of Rehearing
July 13, 1977.
Appeal from the United States District Court for the
Northern District of Texas.
Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.
TUTTLE, Circuit Judge:
In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663
(1962), the Supreme Court held that the constitutional validity of
legislative apportionment schemes was a justiciable question
because “[j Judicial standards under the Equal Protection Clause
are well developed and familiar,” 369 U.S. at 226, 82 S.Ct. at-715.
Subsequent decisions establishing the principle of individual
electoral equality, see Reynolds v. Sims, 377 U.S. 533, 84 S.Ct.
1362, 12 L.Ed.2d 506 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506
(1964), and applying the dilution doctrine, see White v. Regester,
412 U.S. 755, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973); Whitcomb v.
Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), have
confirmed the Court’s sanguine assessment of the judiciary’s
capacity to eliminate unfair treatment of voters as individuals
and to enhance the prospects for effective political participation
D-2
by formerly disenfranchised racial minorities. A necessary
concomitant to the formulation of constitutional principles
governing the legality of particular types of apportionment plans
has been the development of a federal common law of voting
rights remedies. This appeal concerns such a remedy.
I. DALLAS CITY COUNCIL
ELECTIONS
Three major racial groups make up the population of Dallas,
Texas. Sixty five percent of Dallas’ citizens are white; twenty five
percent are black; and ten percent are Mexican-American! or
chicano. Prior to the 1975 elections, the Dallas City Council was
selected in the following manner. The City was divided into eight
residential districts; eight “places” on the council ballot were
reserved for candidates who resided in each of the respective
districts; three additional Council members, including the mayor,
ran without regard to the residency requirement; but voting for
all eleven seats was on an at-large basis. The result of the residency
requirement plus at-large voting for all seats was that eventhough
candidates carried black districts by huge majorities they were
regularly defeated by opponents who carried the majority white
vote city-wide.
Candidates for the Dallas City Council have traditionally been
nonpartisan. No party primaries have ever been held, although a
majority-vote requirement has necessitated run-off elections
whenever a candidate for a particular “place” obtains only a
plurality of the popular vote. Crucial to success in the Council
elections has been the endorsement of the Citizens’ Charter
Association (CCA); approximately eighty percent of the
candidates supported by this slating group have been victorious.
Since 1969, the CCA has endorsed at least one minority group
candidate for a City Council position in the biennial elections. At
' We use interchangeable the term Mexican-American and Chicano to
comprehend that group, largely of Spanish-surnamed citizens, mostly of
Mexican origin. See Hernandez, v. Texas, 347 U.S. 475, 480, 74S.Ct. 667,98
L.Ed. 866.
D-3
the time the case was tried by the district court, two blacksand one
Mexican-American were serving on the eleven-person City
Council. All three had been supported by the CCA. No black or
chicano had ever won a Council seat without CCA backing: few
whites had, although Mayor Wise did win as an independent.
The district court has held that the at-large system of electing ail
Dallas City Council members unconstitutionally dilutes the
voting strength of the black community of Dallas. Lipscomb vy.
Wise, 399 F.Supp. 782 (N.D.Tex. 1975). Mexican-Americans
have also been recognized as an identifiable racial group for
purposes of the fourteenth amendment, see. e.g., Hernandez v.
Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed.866 (1954). But the
district court’s judgment here appealed from did not attempt to
determine the constitutionality of the Dallaselections system with
respect to chicanos, because all Mexican-American plaintiffs had
been dismissed from the lawsuit for failure to comply with
discovery orders. 399 F.Supp. at 784. Thus, for purposes of this
appeal only, we must assume that no constitutional violation of
the rights of Mexican-American citizens occurred under the at-
large scheme.
Il. PARAMETERS OF THE DISPUTE
The City of Dallas does not challenge the district court’s holding
that the all at-large system unconstitutionally diminishes the
voting strength of Dallas’ black citizens. The problem, instead is
the selection of an appropriate remedy. The district court
approved the City’s plan for relief, which was enacted as a city
ordinance following the court's decision that the prior system was
unconstitutional. That plan, known as the “eight/three” plan,
provides for the establishment of eight single-member districts
corresponding to the eight residential districts under the ail at-
large system. The additional Council members are to be elected at-
large, with one of the at-large seats being designated as mayor.
The plaintiff-appellants contend that the district court’s decision
must be reversed because (1) it employs at-large voting to fill three
D4
Council seats; and (2) the district lines have allegedly been drawn
so as to concentrate black voters in an impermissibly small
number of districts, resulting in “cluster dilution.” Representa-
tives of the Mexican-American community, whom the district
court permitted to intervene at the remedy stage of the lawsuit,
also appeal and ask that we remand for findings concerning
alleged unconstitutional dilution of the voting strength of
Dallas’ chicano citizens and for the development of an election
plan that would remedy that alleged violation.
We note at the outset two limits on our decision here. First, if the
election plan proposed and formally adopted by the City Council
is (1) constitutional and (2) otherwise in accordance with the
federal common law of voting rights remedies, it should be
approved. See Burns v. Richardson, 384 U.S. 73,85, 86S.Ct. 1286,
16 L.Ed.2d 376( 1966); Wallace v. House, 515 F.2d 619,634-35(Sth
Cir. 1975) ( Wallace 1), vacated and remanded on other grounds,
425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976), onremand 538
F.2d 1138 (Sth Cir. 1976) ( Wallace 11). Second, it is concededly
impossible that an eleven-member plan of any sort could be drawn
for the city of Dallas which would create a “safe” single-member
district for the Mexican-American community unless some form of
cumulative voting, proportional representation, or crazy-quilt
district boundaries were employed. Mexican-American citizens
are so dispersed throughout Dallas that a safe single-member
chicano district could be established only by increasing the size of
the Council to twenty or twenty-two members. The largest
concentration of Mexican-Americans in the City’s plan for eight
single-member districts is twenty percent of one district's
population. Under the two alternate plans proposed by the
plaintiffs, no more than thirty one percent of any district's
population would be chicano. The Mexican-American
intervenors themselves offered no proposed plans. This Court, on
the facts of this case, has no authority to order the City of Dallas to
double the size of its City Council. Therefore, as far as theeffects of
reapportionment on the Mexican-American community are
D-5
concerned, we are limited to the consideration of plans for an
eleven-member Council.
Ill. THE PREFERENCE FOR SINGLE-
MEMBER DISTRICTS
We have previously recognized Dallas’ longstanding public
policy in favor of at-large voting. See Zimmer v. Mc Keithen, 485
F.2d 1297, 1307 (Sth Cir. 1973) (en banc). it comes as no surprise,
therefore, that the reapportionment plan proposed by the City is
a “mixed” plan, containing eight single-member districts and
three at-large seats. It cannot, however, be successfully main-
tained that the use of at-large voting to select three Council
members is in itself constitutionally defective. White v. Regester,
1412 U.S. 755, 765, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973) (multi-
member districts are not per se unconstitutional); Chapman v.
Meier, 420 U.S. 1, 15, 95 S.Ct. 751, 760, 42 L.Ed.2d 766 (1975)
(Court “has upheld numerous state-initiated apportionment
schemes using multi-member districts”).
Appellants contend that the district court’s approval of the
City’s proposed reapportionment plan must be reversed as an
abuse of discretion. This contention is founded on the Supreme
Court's recent decision in East Carroll Parish School Board v.
Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per
curiam). In East Carroll, the district court had approved a
municipal plan calling for the at-large election of all members of a
parish police jury and school board. This Court reversed on
constitutional grounds, holding that the all at-large system
unconstitutionally diluted the voting power of black citizens.
Zimmer v. Mc Keithen, 485 F.2d 1297 (Sth Cir. 1973) (en banc).
The Supreme Court, however, expressly avoided disposition of
the case on constitutional grounds. 424 U.S. at 639, 96 S.Ct.
D+
1083. Rather, the Court affirmed our decision on the basis of the
rule that when United States district courts are put to the task of
fashioning reapportionment plans to supplant concededly
invalid state legislation, single-member districts are to be
preferred absent unusual circumstances . . . . As the en banc
opinion of the Court of Appeals amply demonstrates, no special
circumstances here dictate the use of multimember districts. Thus
we hold that in shaping remedial relief the District Court abused
its discretion in not initially ordering a single-member
reapportionment plan.
424 U.S. at 639-40, 96 S.Ct. at 1085; accord, Paige v. Gray, 538
F.2d 1108, 1111 (Sth Cir. 1976); Wallace v. House, 538 F.2d 1138,
1142 (Sth Cir. 1976).”
IV. THE MEXICAN—AMERICAN AS
CREATING A “SPECIAL CIRCUMSTANCE”
Here, the district court approved the City’s eight/ three plan on
the following basis:
.L conclude that Mexican-American citizens do not suffer
from present dilution of their voting strength, and in fact,
benefit to a significant extent from at-large voting .. . .
The Court finds that an exclusive single-member district
plan would do nothing to increase the opportunity for
Mexican-American participation in the political life of
Dallas and might tend to decrease it. . . . [I]t is clear that
at-large voting offers features which allow greater
participation in the political processes within Dallas for
Mexican-American voters [which] would be unavailable in
an exclusive single-member district voting plan. .. .
Mexican-American citizens will, under the eight/ three plan,
have a heretofore unavailable flexibility and greater
opportunity to participace in the political life of Dallas.”
399 F.Supp. at 793-94.
Although a group of Mexican-Americans were originally
plaintiffs in the district court, they were dismissed for failure to
comply with discovery. 399 F.Supp. at 784. A class consisting of
a
D-7
Mexican-American voters were permitted to intervene at the
remedy stage of the lawsuit, but the district court’s finding of
unconstitutionality concerned the voting strength of black
citizens only. The intervenors presented no plans for
reapportionment at the remedy stage. Their position can be
fairly characterized as being in favor of any reapportionment
plan that would create a “safe” Mexican-American seat on the
Dallas City Council. Of course, no racial group has a
constitutional right to be represented in a legislative assembly
by a member of the group. On the other hand, representation by
a person of one’s own race is the most visible sign that a racial
group has effective access to the political process and that the
assembly will hear those concerns that are peculiar to the group.
It is generally concluded that no single-member district will be
dominated by chicanos, who comprise only eight to ten percent
of Dallas’ population and whose residences are not geograph-
ically concentrated. The question on appeal is therefore whether
the particular situation of Mexican-American citizens in Dallas
constitutes a “special circumstance” within the contemplation of
East Carroll and our opinion on remand in Wallace v. House.
We think it does not.
The major difficulty with the district court’s decision that a
mixed plan would improve Mexican-American access to the
political process is that there has never been a determination
that their access has been unconstitutionally impaired. At the
liability stage of the trial, there was no evidence presented
concerning the voting rights of the dismissed chicano plaintiffs.
At the remedy stage, the Mexican-American intervenors
suggested that the voting power of chicanos had been diluted in
the same fashion as the voting power of the black community.
The City did not oppose these assertions. (Indeed, they
furthered the City’s position.) The trial court was ambivalent:
“The Court finds that Mexican-American citizens of Dallas
have suffered some restrictions of access to the political
processes within the city but that this restriction does not
amount to dilution. 399 F.Supp. at 793.
D-8
I conclude that Mexican-American citizens do not suffer from
present dilution of their voting strength, and in fact, benefit to a
significant extent from at-large voting.
399 F.Supp. at 793.
Mexican-Americans have entered to some extent into the
political life of Dallas through the present at-large system. At-
large voting may operate in part as a restriction of access for
Mexican-Americans as it has been for blacks. At the same time
however, it is clear that at-large voting offers features which
allow greater participation in the political processes within
Dallas for Mexican-American voters [which] would be
unavailable in an exclusive single-r ember district voting plan.”
399 F.Supp. at 794.
Thus, for purposes of this appeal, we must assume that the
former all at-large system was not unconstitutional withrespect
to Dallas’ chicano community. The problem that the chicano
officer seeker faces in Dallas is that only eight to ten percent of
Dallas’ citizens are Mexican-Americans. In any election contest
dominated by racial or ethnic block voting, a Mexican-
American will always come in third to the white candidate and
the black candidate. Chicano politics in Dallas must be the
politics of coalition.
Furthermore, we find most enlightening on this matter of the
relative advantages of eight/three and eleven/zero systems to
Mexican-Americans a pleading filed on their behalf pending
this appeal. The trial court expressly retained jurisdiction of the
case for possible future modifications. Shortly after the trial
court judgment an election was held at which a member of the
class was defeated for one of the at-large posts. Thereafter.
counsel for the Mexican-American intervenors filed a motion
with the trial court for a further hearing as to the correctness of
the trial court's order approving the eight/three city council. In
support of this motion, counsel made the following statements:
“Intervenors would show the Court that under the approved 8
D-9
3 plan Mexican-Americans are restricted in their access from
entering into the political life of Dallas. It is clear that At Large
voting does not offer features which allow greater participation
in the political process within Dallas for Mexican-American
voters, but in fact dilutes the vote of the Mexican-American
citizen and makes it impossible for a Mexican-American to
participate meaningfully in the election process.
Intervenors would show the Court that the results of the
election of April 1, 1975, and other additiona] evidence will
establish that Mexican-Americans are being denied representa-
tion and do suffer from the present dilution of their voting
strength and do not benefit to a significant extent from At Large
voting.”
Thus, it will be seen that by pleadings filed by them, a class
for whose benefit the trial court sought to act, has not only
disclaimed the “benefit” but also denied the basis of which it
rests.
We conclude that (1) as far as this record is concerned,
chicano “access” to the political processes of Dallas need not be
improved since it is ex hypothesi the same “access” as that of
white persons; and (2) the district court’s opinion was based on
a theory of electoral politics that applies as well if not better to
single-member districts than to at-large elections. Thus, the
situation of the Mexican-American voters does not constitute a
special circumstance within the contemplation of the cases
which require that absent such special circumstances, the city’s
legislative body be elected from single members districts.
V. ELECTION OF MAYOR
No showing has been made as to the city’s preference for the
election of a mayor? if the City is to operate with an eleven
2 The mayor's office in Dallas is what is known as a “weak mayorality.” That
no legislative powers qua mayor. He has no veto powers. City government is
administered by a City Manager.
D-10
member council chosen by districts. Under the present plan, he
is required to be the city-wide candidate for “position” No. 11 of
one of the at-large posts. The City may provide for the election
of the mayor by general city-wide election or by election by City
Council.
VI. CONCLUSION
Therefore, the order appealed from is reversed and remanded
with instructions for the district court to require the City to
reapportion itself into an appropriate number of single-member
districts for the purpose of holding City Council elections.
Should the City fail to propose an acceptable plan, the court
shall formulate its own plan. The trial court shall also consider
the appellant’s claim here that he is entitled to attorney's fees for
all services through the completion of this appeal. See 42
U.S.C.A. § 1988 (Supp. 1977).
REVERSED AND REMANDED.
E-]
APPENDIX E
LIPSCOMB V. WISE
Albert L. Lipscomb, et al.,
Plaintiffs-Appellants Appellees,
v.
The Honorable Wes Wise, Mayor of
the City of Dallas, et al., etc.
Defendants-A ppellees,
v.
Adelfa B. Callejo, et al., Intervenors-Appellants.
No. 75-2605.
United States Court of Appeals,
Fifth Circuit.
July 13, 1977.
Appeals from the United States District Court for the North-
ern District of Texas, 399 F.Supp. 782, Eldon B. Mahon, Judge.
ON PETITIONS FOR REHEARING
Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petitions for rehearing filed on
behalf of plaintiffs-appellants appellees and _ intervenors-
appellants in the above entitled and numbered cause be and the
same are hereby DENIED.
The concluding paragraph of the opinion, 551 F.2d 1043, is
modified to read as follows:
VI. CONCLUSION
Therefore, the order appealed from is reversed and remanded
with instructions for the district court to require the City to
reapportion itself into an appropriate number of single-member
E-2
disticts for the purpose of holding City Council elections. Should
the City fail to propose an acceptable plan, the court shall
formulate its own plan. The trial court shall also consider the
appellant’s claim here that he is entitled to attorney’s fees for all
services through the completion of this appeal. See 42 U.S.C.A. §
1988 (Supp. 1977).
F-1
APPENDIX F
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 75-2605
Albert L. Lipscomb, et al.,
Plaintiffs-Appellants Appellees,
versus
The Honorable Wes Wise, Mayor of
the City of Dallas, et al., etc.
Defendants-Appellees,
versus
Adelfa B. Callejo, et al.,
Intervenors-Appellants.
Appeals from the United States District Court for the Northern
District of Texas.
ORDER:
(X) The motion of APPELLEES for stay of the issuance of the
mandate pending petition for writ of certiorari is DENIED. See
Fifth Circuit Local Rule 15, as amended January 11, 1972.
eel
United States Circuit Judge
G-!
APPENDIX G
SUPREME COURT OF THE UNITED STATES
No. A-149
WES WISE, ET AL..,
Applicants,
v.
ALBERT L. LIPSCOMB, ET AL.
ORDER
UPON CONSIDERATION of the application of counsel for
the applicants, the responses filed thereto, and the reply of the
applicants,
IT IS ORDERED that the mandate of the United States Court
of Appeals for the Fifth Circuit in case No. 75-2605, issued
August 8, 1977 be recalled, and the judgment of that court stayed,
pursuant to my in chambers opinion released today, pending the
timely filing and disposition by this Court of a petition for writ of
certiorari. Should the petition for a writ of certiorari be denied,
this order is to terminate automatically. In the event the petition
for writ of certiorari is granted, this order is to continue in effect
pending the sending down of the judgment of this Court.
/s/ Lewis F. Powell
Associate Justice of the Supreme
Court of the United States
Dated this 30th day of August, 1977.
H-1
APPENDIX H
SUPREME COURT OF THE UNITED STATES
No. A-149
Wes Wise et al., Applicants
v.
Albert L. Lipscomb et al.
On Application for Stay.
[August 30, 1977]
MR. JUSTICE POWELL, Circuit Judge.
This is an application for a stay of the judgment and recall of
the mandate of the United States Court of Appeals for the Fifth
Circuit. That judgment directs the District Court for the
Northern District of Texas to require the exclusive use of single-
member districts in the election of the Dallas city council.
Applicants, the mayor and city council of Dallas, contend that
any redistricting pending review by this Court could have the
effect of mooting the case and defeating this Court’s jurisdiction.
1.
Before 1975 the 11 members of the Dallas city council were
elected by an exclusively at-large system of voting. Eight places
on the ballot were reserved for candidates who resided in one of
the city’s eight residential districts. Three seats, including the
mayor's, were open to candidates regardless of residence. Voting
for all 11 seats was citywide. For many years council elections
have been nonpartisan, involving slating groups rather than
political parties. Electoral success has depended in major part
upon support of one such group, the Citizens’ Charter
Association.
Plaintiffs representing Negro citizens of Dallas challenged this
_ election system in 1971. Certain Mexican-Americans intervened,
but were dismissed from the case for failure to respond to
interrogatories. In 1975, the District Court concluded that the at-
large election system unconstitutionally diluted the vote of
Dallas’ Negro citizens. The court rested this conclusion on
H-2
findings dealing with the geographic concentration of Negroes
within the city, the effect of slating groups, and the city’s history
of de jure discrimination.
Instead of formulating its own districting plan, the court af-
forded the city council an opportunity to enact a valid plan. The
council duly adopted an ordinance that provides for election of a
council member from each of eight single-member districts,the
remaining three to be elected from the city at large. After careful
examination of this plan, the District Court approved it. The
court observed that single-member districts generally are
preferable, but concludedthat several facts weighed in favor
of the city’s new system. First, the court noted that any plan
which did not consider the effect on Mexican-American voters
might itself be constitutionally suspect. Indeed, detailed
consideration of the plan’s effect upon those voters. who were
more geographicaliy dispersed than Negro citizens, convinced
the District Court that their electoral power would be enhanced.
Second, the new plan permitted some citywide representation in
a body that functioned as a legislature for the entire city. At-large
voting in Dallas dated back to 1907, and there was no showing
that its use in the new plan would have adverse effects on any
minority. The court found a recent marked improvement in the
political participation and general posture of minority groups in
Dallas.'
On appeal, the Court of Appeals reversed. Relying primarily
on East Carroll Parish School Board v. Marshall, 424 U.S. 636
(1976), and apparently drawing no distinction in this respect
court held that absent unusual circumstances single-member
districts are to be preferred. It concluded that no such
' As noted in the i pe ee ee en te
Dallas city in 1975 was two Negroes, one and
eight whites. 399 F.Supp. 782, 787 n. 5 (N.D. Tex. 1975).
H-3
number of single-member districts. A rehearing was denied, and
a requested stay of mandate was refused.
Il.
Applicants level three charges of error at the judgment below.
First, they contend that the Court of Appeals improperly ignored
the distinctions drawn by this Court between state-enacted and
court-ordered reapportionment plans. Applicants further argue
that the court erroneously held that the city, in fashioning a
remedy to correct unconstitutional dilution of the voting rights of
one minority group, cannot consider the remedy’s impact on
other groups in the absence of an adjudication that the other
group’s rights also were impaired unconstitutionally. Applicants’
final claim is that the court below erred in failing to consider the
city’s need for some citywide representation.
This Court has declared repeatedly that the standards for
evaluating the use of multimember and at-large voting plans
differ depending on whether a federal court or a state legislative
body initiated the use. E.g., Chapman v. Meier, 420 U.S. 1, 18
(1975); see Connor v. Finch. ___U.S.__, 97 S.Ct. 1828, 1833
(1977). When a federal court imposes a reapportionment plan
upon a State, single-member districts are preferable in the absence
of unusual circumstances. East Carroll Parish School Bd., supra,
at 639. But “legislative reapportionment is primarily a matter for
legislative consideration and determination,” Reynolds v. Sims,
377 U.S. 533, 586 (1964). When the State accepts this responsi-
bility, its decisions as to the most effective reconciling of
traditional policies should not be restricted beyond the
commands of the Equal Protection Clause. Burns v. Richardson,
384 U.S. 73, 85 (1966); cf. Connor v. Finch, ___US., at ___., 97
S.Ct., at 1833. The Court of Appeals, by holding the Dallas city
council to the “unusual circumstances” test of East Carroll Parish
School Bd., appears to have confused these two standards.”
2 Meat west egg oat Soarnenerminger pps ements Be Bo
have been proposed by a legislative body, and a court-approved plan, which
has been initiated and promulgated as law by the legislative body. East
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While we have never explicitly held that municipal election plans
are entitled to the same respect accorded those of state legisla-
tures, there is reason to believe that they should be. We indicated
as much in Chapman v. Meier, supra, at 27:
“[R Jeapportionment is primarily the duty and responsibility
of the state through its legislature or other body rather than
of a federal court.”
(Citing Reynolds v. Sims, 377 U.S. 533 (1964).) See also Dusch v.
Davis, 387 U.S. 112, 116-117 (1967).
The two additional errors advanced by applicants also may
have merit. The view of the court below that a plan's effect on
various minority groups can be considered only after an
adjudication of unconstitutional impairment as to those groups
may be incompatible with the rationale of our recent decision in
United Jewish Orgs. v. Carey, US 97S.Ct. 996 (1977).
See also Gaffney v. Cummings, 412 U.S. 735, 752-754 (1973).
Moreover, no apparent weight was given the express findings of
the District Court with respect to the legitimate interest of the city
in “having some at-large representation on [its] City Council.”
399 399 F.Supp., at 795.4 I had thought it clear that a federal court
~ Carroll Parish School Bd. involved the former, and this Court noted that “in
submitting the plan to the District Court, the | police] jury did not purport to
itself in accordance with the 1968 enabling legislation . . . .” 424
U.S., at 639 n. 6. Here, by contrast, “[t]he district court approved the City’s
plan for relief, which was enacted as a city ordinance following the court's
decision that the prior system was unconstitutional.” 551 F.2d 1043, 1045
(CAS 1977). Thus, a rule of limited deference to local legislative judgments is
appropriate in this case, for as we held in Burns v. Richardson, 384 U.S.. at
85, “a State's freedom of choice to devise substitutes for an apportionment
plan found unconstitutional, either as a whole or in part. should not be
restricted beyond the clear commands of the Equal Protection Clause.”
3 The oppositica to the new plan of certain Mexican-American voters does not
render the District Court's findings in this respect automatically invalid.
Those intervenors were never certified as the representatives of anv class.
‘ After alluding to the evidence and to the concession by the plaintiffs (who had
peepee we) pag og a My why <n gelemamael
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reviewing a reapportionment plan should consider and give
appropriate weight to any valid state or municipal interest found
to be furthered by the plan under consideration. See, e¢.g.,
Reynolds v. Sims, supra, at 578-581. Citywide representation
appears to be such an interest. Cf. Dusch, supra; Fortson v.
Dorsey, 379 U.S. 433, 438 (1965).
iil.
The general principles that guide a Circuit Justice with respect
to stay applications are well settled. The judgment of the court
below is presumed to be valid, and absent unusual circumstances
we defer to the decision of that co_rt not to stay its judgment.
Moreover, the party seeking a stay bears the burden of advancing
pursuasive reasons why failure to grant could lead to irreparable
harm. In light of the foregoing considerations, the Circuit Justice
must make a judgment whether there is a “reasonable probability
that four members of the Court will consider the issue sufficiently
meritorious to grant certiorari.” Graves v. Barnes, 405 U.S. 1201,
1203 (1972).
I think there is a reasonable probability that at least four
Members of the Court will grant certiorari in this case. The case
involves a major city that has adhered to its tradition of at-large
elections since 1907.5 As indicated above, the Court of Appeals
may well have thought that the principles applicable to a state
legislative redistricting did not apply with full force to such action
by a city council. It also appears likely that established principles
of general application in the redistricting cases were not applied
correctly. Applicants also claim irreparable injury unless a stay is
Dallas City Council; that this governmental interest is the need for a city-
wide view on those matters which concern the city as a whole, ¢.g.,
zoning, budgets, and city planning; and that three at-large members do
not render the city’s plan constitutionally infirm.” 399 F.Supp., at 795
(footnote omitted).
$ The District Court found:
. . that at-large voting, especially on the municipal level has been an
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granted. Although the next regular election is not scheduled until
April 1979, if the judgment of the Court of Appeals is not stayed,
experience indicates that respondents will press promptly for a
special election. In their response to this application, they
comment that a stay “would unjustifiably prolong” an
appropriate remedy. If the remedy ordered by the Court of
Appeals were effectuated, the issues presented here probably
would be mooted. In any event, in a situation of this kind the
capacity of the incumbent council to function effectively in the
public interest may be impaired if the judgment is not stayed.
I will, therefore, enter an order recalling the mandate and
staying the judgment of the Court of Appeals pending disposition
of the petition for certiorari.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.