Respondents Brief — Wise v. Lipscomb

FOR ARGUMENT.

—$——

[Supreme Court U.S

FILED

MAR 29 1978

%

i

IN THE

Supreme Court of the United States

OcToBER TERM, 1977

No. 77-529

Wes Wise, et al., Petitioners,

v.

ALBERT L. Lipscoms, et al., and

ApELFA B. CALLEJO, et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR RESPONDENTS CALLEJO, et al.

Vitma S. Martinez

Morris J. BALLER

Linpa HANTEN

Joaquin G. AVILA

MexicaN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL

Mexican AMERICAN LEGAL

DEFENSE AND EDUCATIONAL

FuNpD

28 Geary Street, 6th Floor

San Francisco, California 94108

Georce SoLaRES

3700 McKinney, Suite 230

Dallas, Texas 75204

FUND

517 Petroleum Commerce

Building

201 N. St. Mary’s St.

San Antonio, Texas 78205

Attorneys for Respondents Callejo, et al.

Passes or Breow S. Anams Parntine, Inc., Wasnineton, D. C.

INDEX

Page

Table of Authorities................ iii

Questions Presented................... 1

Statement of the Case................. 2

A. Proceedings Below............. 2

B. At-Large Voting and

Mexican Americams............. 6

Summary of Argument................... 9

ARGUMENT

I. THIS COURT'S STRONG PREFER-

ENCE FOR SINGLE-MEMBER DIS-

TRICT REMEDIAL PLANS TO

REPLACE UNCONSTITUTIONAL

AT-LARGE ELECTION SCHEMES

APPLIES TO THIS CASE......... 12

A. The Preference For Single-

Member Districts May Not

Be Put Aside Merely Be-

cause A State Legislative

Body Suggests Another

Dinh n ee ese 6ebsecerceccs 12

B. The Plan Adopted Below Is

Court-Ordered, Since Peti-

tioners Submitted It In

Response To A Finding Of

Unconstitutional Dilution

Of Voting Rights.......... 17

II. NO SPECIAL CIRCUMSTANCES

JUSTIFY USE OF AT-LARGE

DISTRICTS IN THE REMEDIAL

PLAN FOR DALLAS.............. 29

A.

Conclusion

-ii-

The Hybrid Plan Does Not

Enhance Mexican American

WT CE 6.66 0a een ees ec 32

. The Alleged Need For At-

Large Districts To Pro-

vide City-Wide Perspective

Is Not Substantial......... 40

- A Es Ce tr ot

-iii-

TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody, 422 U.S.

ee Es 4 0's 5'0068060666 46608040000 004 15

Beer v. United States, 425 U.S. 130

CREE Gane CEG DEC SSE e ka Sew e ch OER EWMES 044 27

Briscoe v. Bell, 53 L.Ed.2d 439 (1977) .. 26

Burns v. Richardson, 384 U.S. 73 (1966).. 38

Chapman v. Meier, 420 U.S. l

CR 6600s cetentuetes SER Pes 14,16,42,43

Connor v. Finch, 52 L.Ed.2d 465

+s PPP TOOT TTT PTET PLT ieee 13,45

Connor v. Johnson, 402 U.S. 690

CE Vb 04 644 oe 406 becotsd 9,13,15,28,29,45

Connor v. Waller, 421 U.S. 656

CRE s 0:0 We wbeeeWdibencunenbeudicede te e% 23

Connor v. Williams, 404 U.S. 549

CREE Seotvle cs Kode Wehbe BUKG oe S03 UU co 65 13

Dallas County, Alabama v. Reeves,

GBR BiB. GIF CROTa) 6 ches ccc cee essetess 43

Dusch v. Davis, 387 U.S. 112 (1967)....43

East Carroll Parish School Board v.

Marshall, 424 U.S. 636 (1976)....10,13,15,

[18,21,23,26,30,41,44

Fortson v. Dorsey, 379 U.S. 433 (1965)...42

-iv-

Georgia v. United States, 422 U.S. 526

Ts ib wish nek sheds oeeks oea dees s 27

International Salt Co. v. United States,

RC er en ye er 15

Kirksey v. Board of Supervisors of Hinds

County, Miss., 554 F.2d 129 (5th Cir.

1977) (en banc), cert. denied 46 LW 3357

Ds +060 ckseen Nenseenstaeeeeens 36,37,38

Lipscomb v. Wise, 399 F. Supp. 782

A eR re ee passim

Lower Colorado River Authority v. City

of San Marcos, 523 S.W.2d 641

I, ak a i a ge 20

Mahan v. Howell, 410 U.S. 315

DS +siueten cud’ bee dee 13,14,15,30,31,39

Morris v. Gressette, 53 L.Ed.2d 506

RE a Ser re eae ere” 23,26,29

Silva v. Fitch, _F. Supp. (W.D. Tex.

No. SA-76-CA-126, 1976)(three-judge ct.)...26

United Jewish w, 1 eewee v. Carey,

ee & FF KF .. errr eee 39,40

United States v. Board of Commissioners

of Sheffield, Alabama, 46 LW 4189

DN. 544 60-6 Whee db dene 4 bens Bakaee« 23,26,27

United States v. Board of Supervisors

of Warren County, Miss., 51 L.Ed.2d 106

6 5006 beeSh oki obkcesk eset esenes sc 26

Wallace v. House, 515 F.2d 619 (5th Cir.

1975) (en banc), rev'd 425 U.S. 947

Dh 66 ase SUE Ed hohe b Oss Sousesae 41,44

a

ee ee ee

-V-

Wallace v. House, 538 F.2d 1138

(5th Cir. 1976), cert. denied 53 L.Ed.2d

Se SEN < « 6th 6 ¢64 oe O00 bbe ess b'4% 31,39,42

Whitcomb v. Chavis, 403 U.S. 129

RR a Nee ene ear 14,36

White v. Regester, 412 U.S. 755

6 Tne RE ais he ee ae ee 14,36

Wise v. Lipscomb, 53 L.Ed.2d 41

NS a al a ee ee ea wae 24

Zimmer v. McKeithen, 485 F.2d 1297

¢. Qo we >, ) Ro B” ” ) re 30

Statutes

Voting Rights Act, Sec. 5,

se f |. er 10,23,25,26,40

United States Constitution,

re Sn. oe eet sbeebeés 14

Home Rule Amendment, Article XI, Sec. 5,

es ec cb bbee ee bene 18,19

Vernon'sAnn. Civ. Stat. Art. 1133....... 19

Vernon's Ann. Civ. Stat. Art. 1153...... 19

Vernon's Ann. Civ. Stat. Art. 1165...... 19

Vernon's Ann. Civ. Stat. Art. 1170...... 19

Dallas City Charter, Chapter IV......... 19

Dallas City Charter, Chapter VIII....... 19

Dallas City Charter, Chapter XXIV....... 19

-vi-

Dallas City Resolution No. 75-0207...... 20

ae : IN THE

ailas City Ordinance No. 14800......... 21

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 77-529

WES WISE, et al.,

Petitioners,

Vv.

ALBERT L. LIPSCOMB, et al., and

ADELFA B. CALLEJO, et al.,

Respondents.

| BRIEF FOR RESPONDENTS CALLEJO, et al.

QUESTIONS PRESENTED

1. Did the district court err in

accepting petitioners’ suggestion for a

hybrid plan as a remedy for their uncon-

stitutional at-large election scheme,

despite this Court's strong preference

for single-member district remedial

plans?

«Re

2. Was the district court correct

in finding such unusual circumstances in

this case as to justify implementation of

a hybrid plan including three at-large

districts?

STATEMENT OF THE CASE

In their briefs, neither the City

petitioners nor the black respondents

fully discuss the position of Mexican

Americans in this litigation and in the

political life of Dallas. Because that

position is crucial to resolution of ques-

tions presented here, respondents Callejo,

et al. here supplement the Statement of

the Case found in the other parties'

briefs.

A. Proceedings Below.

1. This case proceeded to trial

on the Second Amended Complaint (A. 5-11),

in which several Mexican Americans joined

the black petitioners as plaintiffs. The

Mexican American plaintiffs were dismissed

for failure to comply with discovery, 399

F. Supp. at 784 (A. 122). Trial began on

July 15, 1974; the next day, the present

Mexican American respondents (hereinafter

“intervenors") filed their application to

-

intervene, 399 F. Supp. at 784 (A. 123).

On December 9, 1974, the district court

denied intervention, but reserved for in-

tervenors the right to participate in any

proceedings to determine relief (A. 26-28).

It also certified a class of black resi-

dents of Dallas, represented by the black

respondents (hereinafter "plaintiffs")

(A. 28).

After trial on the merits, the dis-

trict court on January 17, 1975 made an

oral finding that the Dallas at-large sys-

tem was unconstitutional, in that it in-

permissibly diluted black voting strength,

399 F. Supp. at 791 (A. 134-35). The

court then invited the Dallas City Council,

in virtually mandatory terms, to take ad-

vantage of "an opportunity to submit to

this Court a plan for re-districting —

is not in conflict with the Constitution."

It formalized its finding and order in an

opinion entered March 25, 1975, 399 F.

Supp. 782 (A. 121 et seq.).

2. The Mexican American inter-

venors were permitted a limited partici-

ltranscript of Judge's Remarks on Announcing

Ruling (January 17, 1975), p. 4; see also id.,

pp. 22-24; 399 F. Supp. at 791 (A. 135).

ale

pation at the remedy stage. Id. at 791

(A. 135). On January 24, 1975, the City

defendants proposed a plan consisting of

three at-large seats and eight single-

member districts (A. 30). The City plan

was not a redistricting ordinance but

merely a resolution of intention passed

by the City Council on January 20, 1975

(A. 188-89), just three days after the

court's oral decision (A. 45, A. 3). De-

fendants acknowledged that they submitted

the plan in direct response to the court's

preliminary oral findings of dilution.

(A. 44, 45, 61, 135).* The black plaintiffs

proposed two plans: one provided for eleven

single-member districts, with the eleven

council members then to elect a mayor; the

other for ten single-member districts and

one mayor elected at-large, 399 F. Supp.

at 691 (A. 136). The district court limi-

ted the intervenors' role at the remedy

hearing to eliciting "...testimony as to

the effect that the city's plan and the

2The City Council in directing the city staff

to formulate a plan did not instruct the staff to

take into account racial or ethnic criteria (A.

29, 60). Thus, a districting plan which provided

Mexican Americans greater access to the City Coun-

cil was not even considered (A. 37-38).

a seth) tdi

oe

plaintiffs' two plans would have on the

Mexican American voting population of

Dallas." Id. at 791 (A. 136). Intervenors

did not therefore present their own plans.

Prior to the hearing, representatives from

the Mexican American community had un-

successfully sought to present other al-

ternatives to the City's proposed dis-

tricting plan to the City Council (A. 43-

44, 63). The Council merely directed them

to the federal court.>

3. The court in its March 25, 1975

opinion approved the eight-three plan over

objections of both plaintiffs and inter-

venors, 399 F. Supp. 791-98 (A. 135-47).

Plaintiffs and intervenors appealed the

remedy; defendants did not appeal the

finding of unconstitutionality of their

original at-large plan. On May 9, 1977,

the Court of Appeals reversed and reman-

ded with instructions requiring a single-

member district plan such as those pro-

posed by plaintiffs, 551 F.2d 1043 (A.

167-77). Justice Powell stayed that

31m a similar fashion, the Council would not

afford the black community an opportunity to pre-

sent their single-member district plans (A. 49).

,

ae

judgment on August 30, 1977, 54 L.Ed.2d 41

(1977) (A. 181-87). Certiorari was gran-

ted on January 9, 1978.

B. At-Large Voting and Mexican

Americans.

Mexican Americans comprise approxi-

mately 87%-10% of the population of Dallas,

according to the 1970 census. Blacks com

prise 25%, and the remaining 65% are Anglo.

Although they comprise about 35% of

Dallas’ total population, before institu-

tion of this suit racial minorities were

locked out of effective participation in

the at-large process for electing the City

Council. Under the district court's hybrid

remedy, black participation remains re-

stricted, while Mexican Americans remain

entirely excluded.

The record shows that Mexican Ameri-

cans in Dallas are a cognizable and vic-

timized minority group. The district

court also recognized that discrimination

against Mexican Americans had included

some degree of restriction of their voting

rights, but not so great a degree as to

render that restriction an unconstitutional

<=

dilution.“ The district court's findings

with respect to the impact of at-large

voting specifically on Mexican Americans

are similarly ambivalent, finding some

handicaps and some advantages.” There is

no dispute, however, that racial bloc

voting is a political reality in Dallas,

and it affects Mexican American candidates,

399 F. Supp. at 793-94 (A. 140), see A.

43. Another harsh reality of at-large

campaigning in a city the size of Dallas

is its extremely high cost--a serious

obstacle for Mexican Americans (A. 75, 67).

Under the at-large election scheme,

only two Mexican Americans have ever been

elected to the Dallas City Council (A.

110). Both enjoyed the support of Dallas’

4uthe Court finds that Mexican-American citi-

zens of Dallas have suffered some restrictions of

access to the political processes within the city

but that this restriction does not amount to pres-

ent dilution...The restriction of access which is

present for Mexican-Americans is of a smiliar na-

ture to that this Court found to exist for the

black voters, but it differs..." 399 F. Supp. at

793 (A. 138), see also A. 72-73.

"At-large voting may operate in part as a re-

striction 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

[continued next page]

aS.

most powerful slating group, see 399 F. |

Supp. at 786-87 (A. 126-28), the Citizens

Charter Association (C.C.A.) (A. 110, 41,

73). Numerous witnesses testified that

Mexican American candidates in at-large

elections had little or no hope of winning

unless they obtained C.C.A. endorsement

(A. 42, 48-49, 55, 66). As a result,

Mexican American City Council representa-

tion in Dallas depends on the grace of

C.C.A. This dependency relationship frus-

trates Chicano political aspirations and

means that any successful Mexican American

aspirant would have to be responsive to the

Anglo-dominated C.C.A., rather than to his

popular constituency (A. 65) .°

which allow greater participation in the political

processes within Dallas for Mexican-American

voters, that would be unavailable in a single-

ry oats: voting plan." 399 F. Supp. at 794

Sas to blacks, the district court found this

phenomenon "[a]nother shadow of dilution," since

"[mjeaningful participation in the political

process must not be a function of grace, but

rather is a matter of right", 399 F. Supp. at

790 (A. 134).

-*™

SUMMARY OF ARGUMENT

I1.A. This Court has consistentl]ly held

that in formulating a remedy for at-large

election schemes which unconstitutionally

dilute minority voting rights, single-

member districts are strongly preferred.

Connor v. Johnson, 402 U.S. 690 (1971).

Petitioners ask the Court to establish an

exception to this remedial rule whenever

a state or local political entity submits

a red‘ stricting plan which is not itself

unconstitutional. The*~Court should reject

that position and should hold that once a

district court has made a finding that the

at-large scheme is unconstitutional, the

rule of Connor v. Johnson should guide the

court in devising a complete remedy, re-

gardless of whether the court draws its

own remedial plan or acts on suggestions

by the political entity. (pp. 12-17)

I.B. The remedial plan submitted by

Dallas, containing three at-large seats,

is a court-ordered plan. It was not en-

acted in the normal course of legislation,

but was hastily submitted after the dis-

trict court made its finding of unconsti-

tutionality and declared its intention

-10-

to grant relief. The Dallas plan was not

and could not have been enacted at all.

Rather, the Dallas City Council merely in-

vited the district court to order its pro-

posal into effect. Dallas made no effort

to submit its plan for Section 5 preclear-

auce, 42 U.S.C. §1973c, which was necessary

unless the plan was deemed court-ordered.

Thus the usual rule requiring single-mem-

ber districts in court-ordered plans is

applicable. East Carroll Parish School

Board v. Marshall, 424 U.S. 636 (1976).

(pp. 17-28)

II. In formulating a remedial plan,

the district court was bound to utilize

single-member districts unless exceptional

circumstances justified a hybrid plan in-

cluding at-large seats. No such circun-

stances existed here.(pp. 29-31)

A. The district court's reliance

on the purported benefits of at-large

Voting to Mexican Americans is misplaced.

The hybrid plan handicaps Mexican Ameri-

cans as well as blacks, and perpetuates

the dilution of their vote. Minority

voters would be better off under the plans

submitted by the black plaintiffs. The

ole

district court's remedial plan not only

fails to enhance minority political access;

it also perpetuates the unconstitutional

features of the original at-large election

scheme. (pp. 32-40)

B. The alleged need for city-wide

perspective is not a self-evident justi-

fication for remedial use of at-large dis-

tricts. Dallas made no special showing

here as to why the goal of having city-

wide perspective on the Council requires

retention of three at-large districts. On

this record, the district court was not

justified in departing from the rule of

preference for single-member districts.

(pp. 40-46)

=~

-12-

ARGUMENT

I. THIS COURT'S STRONG PREFERENCE

FOR SINGLE-MEMBER DISTRICT RE-

MEDIAL PLANS TO REPLACE UNCON-

STITUTIONAL AT-LARGE ELECTION

SCHEMES APPLIES TO THIS CASE.

A. The Preference For Single-

Member stricts May Not Be Put

Aside Merely Because A State

Legislative Body Suggests An-

other Remedy.

Petitioners rely heavily on the dis-

tinction between "court-ordered" (or

"court-initiated") and "State-initiated"

reapportionment plans (Pet. Br. 10-11).

Defining a State-initiated plan very

broadly to include one submitted "within

a reasonable time" after a judicial finding

that the prior apportionment was uncon-

stitutional, petitioners argue that such

a State-submitted remedial plan must be

approved, provided only that it meet mini-

mum rere standards (Pet. Br.

10).

"The district court apparently followed a like

standard. In opening the hearing on a remedy,

the court announced that the hearing's purpose was

"to determine the constitutionality of the new

proposed plan by the City of Dallas" (A. 29).

«13-

The rule of law petitioners suggest

would eviscerate important remedial prin-

ciples developed by this Court in a line

of decisions descending from Connor v.

Johnson, 402 U.S. 690, 692 (1971), to

Connor v. Finch, 52 L.Ed.2d 465, 473-74

(1977) .° Adoption of that rule would as a

practical matter nullify the Court's oft-

stated preference for use of single-member

districts to remedy at-large shcemes which

have been held unconstitutional. See cases

cited in n. 8, supra. Since district courts

initially defer to the subject political

entity for submission of proposed redis-

tricting plans, a rule requiring approval

of state-submitted hybrid plans so long as

they are not themselves unconstitutional

would readily permit circumvention of the

preference for single-member districts.”

B see also, Connor v. Williams, 404 U.S. 549,

551 (1972); Mahan v. Howell, 410 U.S. 315, 333

(1973); East Carrol] Parish School Board v.

Marshall, 424 U.S. 6360, 639 (1976).

the distinction between court-ordered and

court-approved plans in the sense proposed by

petitioners would also undercut the goal of pop-

ulation equality between districts with little

more than de minimis variation, Connor v. Finch,

supra, 52 L.Ed.2d at 477. [continued next page]

-14-

Instead of focusing on the highly

artificial technicality of whether a re-

districting plan was "approved" or "or-

dered" by the district court, or whether

the State or the court "initiated" a plan,

the courts should determine whether the

proposed plan was submitted as the result

of a judicial finding of unconstitution-

ality. When a redistricting scheme con-

taining at-large seats is adopted by the

political entity pursuant to its normal

legislative functions and not pursuant to

a finding of unconstitutionality, than

the plan need only meet the Equal Protec-

tion standards of the Fourteenth Amend-

ment. White v. Regester, 412 U.S. 755

(1973) 29 A finding of unconstitutional

Under a court-approved plan, a political entity

could submit an acceptable reapportionment plan

with a total deviation of 16%, Mahan v. Howell,

supra; while a court-ordered plan with the same

deviation would be unacceptable, Chapman v. Meier,

420 U.S. 1 (1975). A political entity could

therefore bypass the federal common law on re-

apportionment remedies merely by submitting a

plan for the district court's approval.

10; 5 the case of state-enacted at-large elec-

tion plans, which are not unconstitutional per

se, Whitcomb v. Chavis, 403 U.S. 129 (1973), the

plan is valid unless it unconstitutionally dilutes

the votes of racial minorities. White v. Reges-

ter, supra, 412 U.S. at 765.

}Ge

dilution, however, requires the district

court to adopt a complete remedy, cf.

International Salt Co. v. United States,

332 U.S. 392, 401 (1947)' Albemarle Paper

Co. v. Moody, 422 U.S. 405, 418 (1975),

which will rectify the denial of access

caused by the at-large election scheme.

Once an at-large election scheme has

been declared unconstitutional, the judi-

cial deference incorporated in the presump-

tion that at-large election districting

legislation is not unconstitutional per se

no longer applies. The only deference

which should then be given to the political

entity is an opportunity to formulate a

redistricting plan which complies with the

Court's stated preference for single-mem-

ber districts unless "insurmountable diffi-

culties", +/"unique factors", /*or “special

circumstances"+7dictate otherwise. /4 The

availability of a complete remedy for un-

Uconnor v. Johnson, supra, 402 U.S. at 692.

12vahan vy. Howell, supra, 410 U.S. at 333.

13

East Carroll Parish School Bd. v. Marshall,

supra, 424 U.S. at 639.

the drawing of district [continued next page}

-16-

constitutional dilution of minority voting

rights should not be subjected to a dual

standard within the control of the discrim-

inating legislative entity.

A complete remedy to correct the de-

ficiencies of an unconstitutional at-large

election scheme requires implementation of

a single-member district plan. The remedy

will remain incomplete if at-large dis-

tricts are utilized in correcting the de-

ficiencies caused by an unconstitutional

at-large election scheme. The pernicious

effects of unconstitutional at-large elec-

tion voting do not disappear merely because

the scheme now incorporates some single-men-

ber district seats. The Court's prefer-

ence for remedial use of single-member dis-

tricts flows from its recognition of the

"practical weaknesses inherent" in at-

large election schemes, Chapman v. Meier,

supra, 420 U.S. at 15-16. These problems

include the difficulty of evaluating mul-

tiple candidates, the length and complex-

ity of ballots, and the prevalence of bloc

voting which are fostered by at-large

boundary lines to conform to neighborhood or geo-

graphical boundaries is an example of a state or

local choice to which federal courts should defer,

assuming constitutional and remedial sufficiency

of the proposals.

m

districting. Id. Such "weaknesses" are

particularly damaging to raciai minorities’

political aspirations.

For these reasons, the Court should

decline to establish a separate, permissive

standard for use of at-large districts in

remedial plans when the plan is submitted

by a political entity which has unconsti-

tutionally diluted minority citizens’

voting rights.

B. The Plan Adopted Below Is

Court-Ordered, Since Fetitioners

Sobattred Teta Response To A

Finding of Unconstitutional Dilu-

tion Voting Rights.

The Court may identify the pertinent

distinction as being between "court-ordered"

and "state-enacted" plans, /?as between

plans enacted in the normal course of state

legislation and those formulated in re-

sponse to a judicial finding of unconsti-

tutionality, or in some other manner. No

such labels should be mechanically applied.

However articulated, the crucial inquiry

is into the origin of the plan submitted

by the Dallas City Council and adopted by

lSthese terms were utilized by Mr. Justice

Powell in his grant of a stay herein, 54 L.Ed.2d

41, 44.

-18-

the district court. The only fair conclu-

sion of that inquiry here is that the eight/

three plan is of the type that we will

henceforth denominate for convenience a

court-ordered (as opposed to state-enacted

and court-approved) plan.

In determining whether a plan is to

be designated a court-ordered or court-

approved plan, the chief inquiry is whether

the political entity enacted the legisla-

tive plan on its own authority or if the

equitable power of a federal court order

was invoked in implementing the legislative

plan. See, East Carroll Parish School Bd.

v. Marshall, 424 U.S. 636 (1976). The

City of Dallas eight/three proposal was nothing

more: the legislative authority of the

City of Dallas did not even allow the City

Council to adopt a redistricting which

could then be submitted for court approval.

Dallas is governed by a Home Rule

Charter pursuant to the Home Rule Amend-

ment, Article XI, Section 5 of the Texas

Constitution. That Charter required elec-

tions for City Council on an at-large

basis until after entry of the district

court's opinion (A. 188). Locally-initi-

ated changes in these charter provisions

-19-

could only be made pursuant to the Home

Rule Amendment's provision that qualifying

cities

may by a majority vote of qualified

voters of said city, at an election

held for that purpose, adopt or

amend their charters, subject to

such limitations as may be pre-

scribed by the Legislature...

Article XI, Section 5, Texas Constitution.

Furthermore, Vernon's Ann. Civ. Stat. Art.

1165 establishes that a Home Rule City

Charter cannot be amended unless a majority

of the voters in a Charter Revision Elec-

16

tion vote to approve the amendment. In

recognition of this limitation on amending

the City Charter, Chapters IV and VIII of

the Dallas City Charter provide that any

amendments must be approved in a special

election.1’ Finally, Chapter XXIV, §16 of

16, similar procedure is utilized by towns and

villages incorporated pursuant to Vernon's Ann.

Civ. Stat. Art. 1133. For those political enti-

ties incorporated pursuant to Art. 1133, the char-

ter of the town or village cannot be amended un-

less the board of aldermen and two-thirds of the

voters at a special Charter Revision Election

approve the proposed amendment. Vernon's Ann.Civ.

Stat. Art. 1153. Thus, the State of Texas has

been at pains to remove from municipalities the

power to redistrict themselves without advance

approval of the electorate.

175ee also, Vernon's Ann. Civ. Stat. Art. 1170.

-20-

the Charter prohib*ts the city from under-

taking any action which would violate state

laws or the Texas Constitution. See also,

Lower Colorado River Authority v. City of

San Marcos, 523 S.W.2d 641, 644 (Tex. 1975)

("The powers of home rule cities are sub-

ject to and may be limited only by their

charters or by the Constitution or by gen-

eral law'').

The manner and method of electing

members to the Dallas City Council is

specified in the City Charter. Thus any

change in the procedure for electing

council members would necessitate an amend-

ment of the City Charter requiring approval

by city voters. When the district court

on January 17, 1975 held that the Dallas

at-large election scheme was unconstitu-

tional, the court gave the City an oppor-

tunity to offer any plans to remedy this

constitutional violation. In response,

the City Council, by City of Dallas Reso-

lution No. 75-0207, sec. 1 (A. 188), auth-

orized the City Attorney to submit the

eight/three plan to the district court

(A. 30). The City Resolution could not

effectuate a change in the City

sti.

Charter. /® Consequently, prior to sub-

mitting the plan to the district court,

the plan was merely a proposal, since the

Dallas City Council could not reapportion

"itself on its own authority," %cf. East

Carroll Parish School Board v. Marshall,

supra, discussed below. For this reason,

18the district court also recognized the limi-

tations on the City Council to change the City

Charter:

Changes to the voting system neces-

sarily are changes to the Charter

and absent a judicial determination

of unconstitutionality, such changes

can only be effected by a Charter

Amendment adopted by the voters.

It is a City Charter provision

which is at issue, not a mere ordi-

nance.. A majority vote of the

registered voters of the 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.

399 F. Supp. at 800 (A. 150-51).

19the City Council in subsequently enacting

Ordinance No. 14800 acknowl edged this inability

to enact redistricting legislation:

Section 2. As a result of the de-

cision of the United States District

Court [continued next page]

=-22-

the district court ordered that the eight/

three plan as had been offered by the City

be submitted "in time for the April 1975

city council elections", 399 F. Supp. at

798 (A. 147). The basis for the utiliza-

tion of the City's eight/three plan was

therefore a federal court order, not the

City Council Resolution. In fact, the

City of Dallas did not hold a Charter Elec-

tion until April 3, 1976 to determine

whether the City electorate would approve

the proposed manner for electing council

members.

These facts present the same situation

for the Northern District of Texas

in the case of Albert L. Lipscomb,

et al. v. Wes Wise, et al., CA-3-

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 Num-

bers 1, 2, 3, 4, 5, 6, 7, and 8,

respectively. Every qualified

voter of the City shall, in addi-

tion, be eligible to vote for a

candidate for Place Numbers 9, 10

and 11.

Pet. Br.. 4.

20the City approved the change and the charter

was amended in 1976.

o%%e

as East Carroll Parish School Board v.

Marshall, supra. In East Carroll Parish,

the plan was listed as a court-ordered plan

because the police jury had no legislative

authority to enact a reapportionment. Prior

to 1968, applicable Louisiana laws pzohib-

ited the implementation of at-large elec-

tion schemes for police juries. However,

in 1968 the state legislature proposed a

statute permitting police juries to convert

to at-large election schemes. When sub-

mitted to the United States Attorney Gen-

eral for preclearance pursuant to Section

5 of the Voting Rights Act, 42 U.S.C.

§1973c, an objection issued. This letter

of objection rendered the legislative act

legally unenforceable. “! Consequently, the

East Carroll police jury lacked legislative

authority to convert to an at-large elec-

tion scheme. This Court discussed the

absence of authority in the context of

whether the policy jury reapportionment of

1971 had to be submitted pursuant to Sec-

tion 5:

21cee, Connor v. Waller, 421 U.S. 656 (1975);

Morris v. Gressette, 53 L.Ed.2d 506, 514 n. 8

; United States v. Board of Commissioners of

Sheffield, Alabama, 46 LW 4189, 4196 (1978).

-2h-

Had the East Carroll police jury re-

apportioned itself on its own author-

ity, clearance under Sec. 5 of the

Voting Rights Act would clearly have

been required. However, in sub-

mitting the plan to the District

Court, the jury did not purport to

reapportion itself in accordance

with the 1968 enabling legislation...

which permitted police juries and

school boards to adopt at-large

elections. Moreover, since the

Louisiana enabling legislation was

opposed by the Attorney General of

the United States under Sec. 5 of

the Voting Rights Act, the jury did

not have the authority to reappor-

tion itself.

424 U.S. at 638 n. 6 [citations omitted], cited

also in Wise v. Lipscomb, 54 L.Ed.2d at

45 n. 2 (1977) (Powell, J., order staying

judgment).

Although the district court did not

explicitly refer to the eight/three plan

as a court-ordered plan, and indeed stated

that it had “approved” the plan, 399 F.

Supp. at 798 (A. 148), the Court should

not be confined by labels in assuring that

important principles of voting remedies

should be properly implemented. The dis-

trict court's statement that it "approved"

the Dallas plan cannot mask the fact that

the court had no valid legislation before

it for approval. The district court's

-25-

implementation of the City's eight/three

plan was--and could only have been--pursu-

ant to a court-ordered plan.

The April 3, 1976 City Charter Elec-

tion by which Dallas' voters adopted the

8-3 plan (see p.22, n. 20, supra) cannot

retroactively make the 1975 reapportion-

ment effective as a legislative act. Neither

the Constitution and laws of Texas nor the

Dallas Home Rule Charter authorize giving

retroactive effect to charter amendments.

To hold the 8-3 plan "court-approved" in

these circumstances would in effect give

the City Council the power of nunc pro

tunc legislation which neither Texas nor

Dallas has granted the Council.

The failure of Dallas to submit its

eight/three plan for preclearance under

Section 5 of the Voting Rights Act, 42

U.S.C. §1973c, is further evidence that the

plan could be considered at most a sugges-

tion rather than state-initiated legisla-

tion. In the absence of a federal court

order implementing the plan, Dallas was

required to submit it to the Attorney Gen-

eral of the United States or the District

Court for the District of Columbia, for

determination that the change does not

~26-

have a discriminatory purpose or effect on

grounds of race, color, or membership in an

applicable a eA minority group. 42

U.S.C. §1973c. Elections conducted with-

out Section 5 preclearance would have been

invalid but for the federal court order .*>

The only exception to this preclearance re-

quirement, which this Court has always

strongly enforced, *“is for “court-ordered

plans resulting from equitable jurisdiction

over adversary proceedings," East Carroll

Parish School Board v. Marshall, supra,

424 U.S. at 638 n. 6; Morris v. Gressette,

supra, 53 L.Ed.2d at 514 n. 8 ("a reappor-

tionment scheme...submitted and adopted

22in 1975 the Voting Rights Act was extended to

cover Texas, and to require preclearance submission

of all post-November 1, 1972 changes affecting

voting. This Court has in the past year affirmed

that Texas jurisdictions are covered, Briscoe v.

Bell, 53 L.Ed.2d 439 (1977), and that municipal-

ities like Dallas are subject to Sec. 5 procedures,

United States v. Board of Commissioners of Shef-

field, Alabama, supra.

2356, United States v. Board of Supervisors of

Warren County, Miss., 51 L.Ed.2d 106, iO (1977);

Silva v. Fitch, F. Supp. (W.D. Tex. No. SA-76-

CA-126, 1976) (three-judge court), aff'd 51 L.Ed.

2d 528 (1977).

24 See, United States v. Board of Commissioners

of Sheffield, Alabama, supra, 46 LW 4192-93, and

cases therein cited.

-27-

pursuant to court order" is not subject to

Section 5).

The Voting Rights Act clearly estab-

lished a heightened standard for review of

election law changes, including redistric-

ting, in political jurisdictions which are

subject to the preclearance requirements

of Section 5.29 One alternative procedure

for assuring review under the heightened

standard is the Section 5 mechanism, in

which the local jurisdiction must assume

the burden of persuasion of the issue of

non-discrimination. The reason that pro-

cedure does not apply where the voting law

change is court-ordered is precisely that

the federal courts then have the equitable

power and duty to remedy the constitutional

violation fully and effectively, not just

minimally. See pp. 15-16, supra. To accept

the eight/three plan on the basis of its

being “court-approved" or "state-initiated"

in this case would allow Dallas to avoid

Section 5 and at the same time excuse the

2D See, e.g., Georgia v. United States, 411 U.S.

526 (1973); Beer v. United States, 425 U.S. 130

(1976); United States v. Board of Commissioners

of Sheffield, Alabama, supra.

-28-

district court from applying the strong

preference for single-member districts.

Such a holding would give recalcitrant

jurisdictions an invitation and road map

to perpetuating the denial of political

access to racial and ethnic minorities to

the greatest extent possible by retainin

as many at-large districts as they could.

The Court should hold that the Dallas

eight/three plan was court-ordered, and

therefore must be reviewed under the single-

member district principle established in

Connor v. Johnson, supra.

261 11ustrative of the consequences of such an

approach are the actions of the Waco, Texas Inde-

pendent School District. After a district court

found that the Waco I.S.D. all-at-large election

scheme unconstitutionally diluted both black and

Mexican American voting rights, F. Supp. (W.D.

Tex. No. W-74-CA-21, Feb. 27, 1976), Waco I.S.D.

proposed a hybrid plan calling for election to

four seats by district and three seats at-large.

When the district court found the 4-3 plan inade-

quate to remedy the discrimination, id., Waco

I.S.D. made the smallest incremental change pos-

sible, submitting a 5-2 plan. The district court

accepted this scheme. (The case is now pending on

appeal, on the remedy issue, 5th Cir. No. 76-2264.)

27 in the event the Court finds the district

court's eight/three plan exempt from the strong

preference for single-member districts, on the

rounds that the plan was “state-initiated" or

\osntlauid next page]

6

-29-

II. NO SPECIAL CIRCUMSTANCES

JUSTIFY USE OF AT-LARGE DIS-

TRICTS IN THE REMEDIAL PLAN

FOR DALLAS. /

The district court erred in holding

that the situation of Mexican American

voters in Dallas and the desirability of

a city-wide perspective on the City Coun-

cil constituted special circumstances jus-

tifying the implementation of a hybrid

eight/three plan. 399 F. Supp. at 792

(A. 137). The record in this case does

not require or support any deviation from

the usual preference for single-member

districts.

‘This Court has articulated and applied

the very heavy burden which a district

court has to overcome before departing from

the single-member district rule in several

slightly different ways. Connor v. John-

son, supra, 402 U.S. at 692, held that

legislative single-member districts were

to be implemented, “absent insurmountable

barriers.'' The Court reversed a trial

court finding that lack of sufficient time

“court-approved", logic requires that petitioners

be directed to seek Section 5 preclearance.

Morris v. Gressette, 53 L.Ed.2d at 512 n. 2.

-30-

to prepare a single-member district plan

before an upcoming primary constituted such

a barrier, and found that time pressures

imposed by an impending election did not

justify departure from the single-member

district rule, 402 U.S. at 692. In East

Carroll Parish School Board v. Marshall,

supra, the Court summarily held that there

were no "special circumstances" which re-

quired multimember districts. 7° This Court

has found reason to allow multimember dis-

tricts as part of a remedial plan on only

one occasion. In Mahan v. Howell, 410

U.S. 315 (1973), the Court approved limi-

ted use of a multimember district for

Virginia Senate seats upon a finding that

the case presented a "singular combination

of unique factors," 410 U.S. at 333. The

Court allowed use of a three-member dis-

trict combining three proposed single-mem-

ber districts which contained significant

28the Court so held although the Court of

Appeals opinion noted that blacks constituted

close to half of the electorate and that three

black candidates had run successfully in recent

at-large elections. See Zimmer v. McKeithen,

485 F.2d 1297, 1307 (5th Cir. 1975) (en banc).

often

_ population disparities and assigned mili-

tary personnel to districts where they did

not reside, 410 U.S. at 332.29 Even in

these extreme cases, the imposition of the

multimember district was as an interim

remedy only, and the Court specifically

encouraged Virginia to substitute a con-

stitutionally sound single-member district

plan, 410 U.S. at 333. n. 13.

The Fifth Circuit has correctly in-

terpreted these decisions to mean that,

"[t]he term, ‘special circumstances,‘ en-

compasses only the rare, the exceptional,

not the usual and diurnal," Wallace v.

House, 538 F.2d 1138, 1144 (5th Cir. 1976),

cert. denied 53 L.Ed.2d 1060 (1977). The

evidence relied on by the district court

and by petitioners simply does not meet

the standards established by this Court

for remedial use of at-large districts in

a hybrid plan.

29The Court referred to "plausible evidence of

substantial malapportionment with respect to mili-

tary personnel, the mandate of this Court that

voting discrimination against military personnel

is constitutionally impermissible,...and fear that

too much delay would have seriously disrupted the

Fall 1971 elections." 410 U.S. at 333 [citation

omitted].

—

=32-

A. The Hybrid Plan Does Not En-

hance Mexican American Voting

Rights.

1. The Eight/Three Plan Does

Not Benefit Mexican Americens.

Although the district court found no

dilution of the Mexican American vote, the

court nevertheless recognized the right of

Mexican Americans "not to be invidiously

excluded from participation in the politi-

cal life of Dallas." 399 F. Supp. at 793

(A. 139). According to the district court's

analysis of Dallas politics, Mexican Amer-

icans would benefit from at-large voting.

The court somewhat speculatively conclu-

ded that an all single-member district plan

might tend to decrease their participation

in the political process, 399 F. Supp. at

793 (A. 139-40).

Intervenors believe that the district

court's analysis reverses the political

reality: voting rights of Mexican Americans

would be enhanced by implementation of

plaintiffs' single-member district plans,

and are diluted by at-large districts and

the hybrid plan.

Mexican Americans have even less

access to the political process implemented

+93-

by the district court than they had under

the previous all at-large system. Mexican

American aspirants for city-wide places

would continue to be dependent upon C.C.A.

endorsement (A. 36, 73). The eight/three

plan therefore inhibits the attainment of

Chicano political independence that accom-

panies enjoyment of an undiluted vote (A.

49, 51, 58). Moreover, although C.C.A.

occasionally endorsed a Chicano candidate

when there were eleven at-large districts,

C.C.A. is unlikely to support a Mexican

American for one of the two at-large places

available. (A. 71) 3°

Plaintiffs’ proposed plans calling

for either eleven single-member districts

or a ten/one plan with only the mayor elec-

ted at-large would provide the Mexican

American community with far greater oppor-

tunity to make its vote effective. Plain-

tiffs' expert, Dr. Dan Weiser, testified

that under plaintiffs' plan, District 2

would be approximately 31% Mexican Ameri-

can, 35% black, and 34% Anglo, providing

30the third at-large position of mayor is not

realistically available to minority candidates in

a racially polarized city with only 35% minority

population.

oBheq

some chance for a Chicano to be elected

(A. 71-72) .31 Witness Robert Medrano, a

Chicano, testified that in 1974, after

twice losing at-large races, he won elec-

tion to the Dallas I.S.D. board from a

district virtually identical to the pro-

posed District 2 (A. 83-86). He stated

that a similar City Council district would

be a very attractive possibility for hin,

while the eight/three plan would preclude

such a race (A. 87, 89).

Elections held under the eight/three

plan adopted by the district court bear

out the adverse effect of that plan on

Chicano political fortunes. In the April

1975 Council election, Pedro Aguirre, a

Mexican American incumbent, ran at-large

and was defeated by a margin of 65%-35%

(A. 154, 159, 162, 164-65). Projections

of the same vote show Aguirre obtaining

42.47% and 43.1% of the vote in plaintiffs'

31p,., Weiser also noted that plaintiffs’ plan

would also establish three districts with black

majorities, thereby enhancing the voting strength

of the plaintiff class (A. 71).

3210 black Council members were as expected

elected from the "safe" black districts created

in the eight/three plan.

+93-

proposed District 2, tabulated as it would

be under plaintiffs' two proposed plans

(A. 155) .>9 Mexican American candidates also

failed in the April 1977 general election

and the November 1977 special election.>*

Thus, the court's eight/three plan has not

permitted any greater degree of direct

Mexican American representation and has

eliminated what direct representation prev-

iously existed. The eight/three plan also

gives Mexican Americans less "swing vote"

strength than would plaintiffs' plans. In

District 2 of the court-adopted plan, Mexi-

can Americans are less numerous than blacks

(20% versus 25.9%) and both minorities con

bined fall short of a population majority,

399 F. Supp. at 795 (A. 143). In plain-

tiffs' plans, Mexican Americans in coalition

334. plaintiffs have previously noted, "This

result was achieved without any special efforts

that a candidate would normally make within his

district when running in a single-member district

situation rather than at-large" (A. 155).

3441 though not reflected in the record made

below, it is of public record that in the general

election one Mexican American ran at-large and was

defeated. In the special election for an at-large

seat, two Mexican American candidates ran unsuc-

cessfully.

»96-

with either Anglo or black voters could

control a majority in District 2, thereby

ensuring responsiveness to the Chicano

community even if no Chicano candidate ran.

On these facts, the district court's

conclusion that the eight/three plan en-

hanced political access for the Dallas

Mexican American community is untenable.

The record will not Support a finding that

the purported benefits of at-large voting

for Mexican Americans constitute an unus-

ual circumstance justifying departure from

the single-member district rule.

2. The Eight/Three Rule Itself

Unconstitutiona y Dilutes

nority Voting Rights.

This Court has frequently held that a

reapportionment plan, formulated in the

context of denial of access of minority

groups to the political process, which

would perpetuate that denial is itself un-

constitutional, White vy. Regester, supra,

412 U.S. at 766; Whitcomb v. Chavis, supra

403 U.S. at 149. See also, Kirksey v.

Board of Supervisors of Hinds County, Miss. ,

354 F.2d 129, 143 (Sth Cir. 1977) (en banc),

cert. denied 46 USLW 3357 (1977). Since the

-37-

hybrid eight/three plan adopted below per-

petuates the dilution of black voting

strength and actually increases the denial

of political access to Mexican Americans,

it denies rights guaranteed under the Four-

teenth and Fifteenth Amendments.

Both the at-large and single-member

aspects of the district court's remedial

plan operate to continue this dilution of

the black vote in Dallas. The existence

of three at-large districts dilutes black

voting strength for the same reasons that

the all single-member plan did so, see

399 F. Supp. at 790 (A. 133-34). This

feature of the plan therefore "will con-

tinue in effect an existent denial of

access to the minority," Kirksey v. Board

of Supervisors of Hinds County, Miss.,

supra, 554 F.2d at 143. The plan's other

eight districts also fail to provide a

complete remedy for dilution. While the

standards for evaluating dilution have

been developed in the context of all mlti-

member schemes, the courts recognize that

single-member districts may be drawn in

such a way as to deny minorities politi-

cal access. This may be true, even when

the minority group comprises the majority

-38-

of the population in some single-member

districts. See, Kirksey v. Board of Super-

visors, supra, 554 F.2d at 143. Cluster

dilution such as that involved in the over-

Saturation of blacks in two districts and

their virtual elimination from the other

districts involved in this plan is uncon-

stitutional denial of political access.

Burns v. Richardson, 384 U.S. 73, 88 (1966) 35

This conclusion is reinforced by clear

record evidence that there were other,

clearly non-discriminatory alternatives”°

Dilution of Mexican American voting

strength by the eight/three plan is even

more severe. There is no significant con-

centration of Mexican Americans in any of

the eight single-member districts in the

court's plan, nor do Mexican Americans

constitute the primary ethnic group in

any district. Although Mexican Americans

are dispersed throughout Dallas, they are

not benefitted by at-large voting. See.

district 1 is 73.6% black; District 2 is

87.3% black. The district with the next highest

minority concentration is 25.9% black and 20.0%

Mexican American. 399 F. Supp. at 795 (A. 143 ).

3s ee Pp. 33-36, supra.

+96~

pp. 33-35 , supra. Moreover, the single-

member districts proposed in plaintiffs'

plans would have provided significantly

greater representation and access than the

eight/three plan. See pp. 33-34, supra.

This Court's decision in Mahan v.

Howell, supra, suggests that the prefer-

ence for single-member district remedial

plans should be overriden only when such

a plan would operate unconstitutionally.

See 410 U.S. at 331-32; cf. Wallace v.

House, 538 F.2d 1138, 1145 (5th Cir. 1976),

cert. denied 53 L.Ed.2d 1060 (1977). Here,

far from being unconstitutional, the all-

single-member plan would avoid the uncon-

stitutional effects of retaining three

at-large districts and minimizing minority

voting strength in the eight other dis-

tricts. In terms of racial impact, cf.

United Jewish Organizations of Williamsburg

v. Carey, 51 L.Ed.2d 229 (1977) ,>” the

37 petitioners’ reliance on United Jewish Organ-

izations v. Carey goes only to meet the rationale

of the Fifth Circuit decison herein. It does not

meet the arguments respondents rely on here. On

the contrary, the Carey decision supports our

position. It held that measures to enhance minor-

ity political access could be taken into account,

in the absence of a finding of unconstitutionality,

[continued next page]

-40-

district court's plan actually diminishes

the access of Mexican Americans, while it

fails to assure the access of blacks. For

this additional reason it does not pass

constitutional muster as a remedy for

Dallas' original at-large election scheme.

B. The Alleged Need For At-Large

Districts To Provide City-Wide =

Perspective 1s Not Substantiated.

The district court also found the

need for a city-wide view on the council

to be a special circumstance justifying

a departure from the all single-member

district preference, 399 F. Supp. at 794

(A. 141). This concern for a city-wide

perspective has never been recognized by

this court as a per se justification for

at-large districts in court-imposed

when a State enacts a reapportionment plan to seek

compliance with Section 5 of the Voting Rights Act,

42 U.S.C. §1973c. 51 L.Ed.2d at 245. It held also

that such considerations did not offend the Con-

Stitution since they did not imply any “racial slur

or stigma," 51 L.Ed.2d at 246.

The basic error committed by the district

court was not that it considered the impact of the

remedy on Mexican Americans at all, but that it

utilized incorrect legal standards--both as to the

degree of deference to be accorded to Dallas and

as to the determination of “special circumstances”

relating to Mexican Americans--in formulating

"race-conscious remedies," 51 L.Ed.2d at 249

(Brennan, J., concurring).

odin

remedial plans. It should not be recog-

nized as an unusual circumstance here.

A political entity's desire for dis-

trict-wide representation on its governing

board is a general rather than a special

circumstance. In every instance where a

governing board is forced to reapportion,

it can make an argument that overall per-

spective is desirable if not absolutely

necessary. This Court's decision in East

Carroll Parish, supra, and its summary re-

versal of a decision approving a plan with

one at-large district in Wallace v. House,

425 U.S. 947 (1976),2° indicate that it is

38: Wallace v. House, 515 F.2d 619 (5th Cir.

1975) (en banc), the Fifth Circuit ordered imple-

mentation of a hybrid plan to remedy unconstitu-

tional dilution of black voting strength. The

one at-large district in the plan was justified

in part by re iance on the principle that:

at-large representatives will be free

from possible ward parochialism and

will keep the interests of the entire

city in mind as they discharge their

duties.

515 F.2d at 633. In summarily reversing, this

Court apparently felt that East Carroll Parish,

supra, disposed of the Fifth Circuit's justifi-

ation.

. On remand, the Fifth Circuit held that its

former holding, which had approved one at-large

potnalen 00+ ma had to yield to the preference

[continued next page]

=42-

not willing to elevate this general circun-

stance to the level of a special circum-

stance.

In finding to the contrary in the

instant case, the district court relied on

Fortson v. Dorsey, 379 U.S. 433 (1965),

and Chapman v. Meier, supra, as support

for the proposition that provision of city-

wide representation could serve as a jus-

tification for at-large districts in court

imposed remedial plans. See 399 F. Supp.

at 795 (A. 142). The district court's

reliance on Fortson is misplaced. Fortson

did not involve a successful challenge to

the constitutionality of an at-large elec-

tion scheme. Rather, it was an unsuccess-

ful challenge to a Georgia redistricting

scheme, which included multimember dis-

tricts, based on the 1960 census. The |

primary issue in Fortson was whether multi-

member districts violated the one person-

one vote principle, not whether they un-

constitutionally diluted minority voting

for single-member districts. Wallace v. House,

538 F.2d 1138 (5th Cir. 1976), cert. denied 53.

L.Ed.2d 1060 (1977).

-43-

39 The sole reference to a dis-

trict wide perspective in Chapman, 420 U.S.

at 42 n. 14, states that representation of

city-wide or region-wide views may be a

conceivable rationale supporting multimem-

ber districts. This statement alone does

not support the elevation of city-wide

perspective to the status of a special cir-

cumstance.

strength.

The record in this case does not jus-

tify recognition of city-wide perspective

as a special circumstance. There has been

no showing that there is any unique or

compelling need in Dallas to have a city-

wide perspective represented on the Coun-

cil, or that such perspective would be

insured by the election of three council

members at-large. On the contrary, the

unique role played by C.C.A. might tend to

make the three at-large representatives

reflect a narrower perspective, rather than

39s imilarly, petitioners' reliance on Dusch v.

Davis, 387 U.S. 112 (1967), and Dallas County,

Alabama v. Reeves, 421 U.S. 477 (1975), in support

of the same principle is inappropriate. These

cases, like Fortson, supra, uphold the constitu-

tionality of multimember schemes challenged as

violating the one person-one vote rule and do not

involve fashioning remedies after a finding that

the multimember scheme is unconstitutional.

-44-

a broader one. 49

Although there was some

testimony that decisions on zoning, rede-

veiopment and other matters require a per-

spective going beyond the boundaries of a

particular neighborhood (see A. 141), there

is no evidence that council members elec-

ted from single-member districts would be

unable or unwilling to consider such matters

fairly. It is unlikely that council men-

bers elected from single-member districts

containing approximately 80,000 people

each would be unduly parochial in their

views.

4Othe greater expense of city-wide campaigning

and the greater problems of candidate recognition

in a city-wide district make C.C.A. support criti<~

cal and make localized candidate efforts to dver-

come lack of C.C.A. endorsement more difficult.

For these reasons, Successful-at-large candidates

may well be beholden C.C.A. and its perspective,

rather than that-of some 80,000 residents of a

Single-member district.

4lihe size of districts in Dallas Significantly

undermines any argument that representatives from

Single-member districts would respond to narrow

interests. In the other cases in which this

Court expressed preference for Single-member dis-

tricts, the districts were considerably smaller.

See, @.g., Wallace v. House, 425 U.S. 947 (1976)

(Ferriday, Louisiana, five districts for popula-

tion 5,200); East Carroll Parish School Board v.

Marshall, supra (East Carro arisn, Louisiana,

continued next page]

-45-

CONCLUSION

In granting a redistricting remedy

for unconstitutional dilution of minority

voting rights, single-member district re-

medial plans should be utilized in the

absence of special circumstances requiring

at-large districts. No such circumstances

exist in this case. The judgment of the

Court of. Appeals should therefore be

affirmed.

DATED: March 28, 1978.

Respectfully submitted,

VILMA S. MARTINEZ

MORRIS J. BALLER

LINDA HANTEN

JOAQUIN G. AVILA

GEORGE SOLARES

Attorneys for Respondents

Callejo, et al.

seven districts or pamsiotion 12,884); Connor

v. Johnson, supra, ssissippi legislature

statewide; largest county, Hinds, had five Senate

districts and twelve House districts for popula-

tion 214,973, see 402 U.S. at 691 and Connor v.

Finch, supra, 52 L.Ed.2d at 479).

ee LE Se ee