Amicus Brief — Wise v. Lipscomb

No. 77-529

Gu the Supreme Court of the nied States

Ocroser TERM, 1977

*y Fv Wes Wise, Mayor or THe Orry oF Daas,

eer ET AL., PETITIONERS

eM v.

AuBert L. Lipscoms, ET al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIROU!IT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Assistant to the Solicitor General,

- BRIAN K. LANDSBERG, _

ROBERT J. REINSTEIN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Interest of the United States__......_.__-_-- 1

Guestions presented... ........2..0.- 01s 2

RSE ENA Se OD 2

Introduction and summary of argument__-_-_-- a

AREER. diictteubatinattetbthdmentitti tiie 20

I. The district court erred in ordering a

reapportionment plan under which

three members of the Dallas City

Council would be elected at-large_-_ 21

II. The 1976 Charter amendment is ineffec-

tive because it has not been pre-

cleared under Section 5 of the Voting

DR ncntinainctendemnnt basin 32

Contlatheh: sccncbdcctebctiion A eee Ye 37

CITATIONS

Cases:

Beer vy. United States, 425 U.S. 130.-.-- 36

Briscoe v. Bell; 482 U.S. 404....- wjnnbewn, BUGS

Burns v.: Richardson, 384 U.S. 73.4.4. -~ 17, 20

Chapman v. Meier, 420 U.S. 1--------- 18, 21, 22

Connor v. Finch, 431 U.S. 407...-- 17, 20,23, 28

Connor v. Johnson, 330 F. Supp. 506__--. »

Connor v.. Johnson, 402. U.S.. 690.2... 21, 36

Connor v. Waller, 396 F. Supp. 1308, re-

versed, .421 U.S. 656....--.-~ ~.4 19, 20, 34-35

Connor y..Williams, 404 U.S. 549... 21

East Carroll Parish School .Board y,

Marshall, 424 U.S. 636.-...-. 15,17, 21, 23, 36

Georgia v. United States, 411 U.S, 526:__- 34

«) ‘\ fe

259-054—_78——__1

Cases—Continued

Granny Goose Foods, Inc. vy. Brotherhood

of Teamsters & Auto Truck Drivers, Lo- page

cal 70 of Alameda County, 415 U.S. 423. 31

Graves v. Barnes, 343 F.: Supp. 704, af-

firmed in relevant part sub nom. White

v. Regester, 412 U.S. 755_--..-..-.-.--- 26

International Brotherhood of Teamsters v.

United States, 4381 U.S. 324..-.-------- 29

International Longshoremen’s Assn. V.

Philadelphia Marine Trade Assn., 389

UB. Cb.nnccncncccnsduncnesinaweaneee 30-31

Langes v. Green, 282 U.S, 531-.----.----- 32

Lipscomb v. Jonsson, 459 F. 2d 335_.----- +

Loutsiana v. United States, 380 U.S. 145.- 29

Mahan v. Howell, 410 U.S. 315..----.- 18, 21, 23

Massachusetts Mutual Life Ins. Co. v. Lud-

wig, 496 UB. £78..nncccntctocdsndence 32

Milliken v. Bradley, 433 U.S. 267_--------- 28

Morris v. Gressette, 432 U.S. 491_-------- 34, 36

Pasadena City Bd. of Educ. v. Spangler,

eis | ee eee

Perkins v. Matthews, 400 U.S. 379__.-.--- 32, 34

Schmidt v. Lessard, 414 U.S, 473_.-.----- 31

South Carolina v. Katzenbach, 383. U.S.

TUR mc cccncscconictresecisseaa 33

System Federation v. Wright, 364 U.S

COB: osc cin vtcsicnntuantssdsibeebeeean 36

United Jewish Organizations v. Carey, 430

OB, BOR. cctiscnccknctcctieedinliowae 24-25

United States v. Board of Comeniesionate

of Sheffield, Alabama, No. 76-1662, de-

cided Mareh 6, 1978___.-.-- ~ayep-+--+,; 18, 34

United States v. New York Telephone.€o.,

No. 76-835, decided December 7, 1977___ 32

United States v. Swift & Co., 286 U.S. 106_ 36

Ill

Cases—Continued

Wallace v. House, 515 F. 2d 619, vacated,

425 U.S. 947, on remand, 538 F. 2d 1138, — page

certiorari denied, 431 U.S. 965____-_--- 22, 24

White v. Regester, 412 U.S. 755__-.----- 17, 29

Constitution, statutes and rule:

United States Constitution:

Fourteenth Amendment_______-----~- 36

Fifteenth Amendment____....-_----- 36

Texas Constitution, Art. XI, § 5_------- 3, 22, 34

Ce eeede 33

EE 1

42 U.S.C. (Supp. V) 1971(c)------------ 1

Voting Rights Act of 1965, 79 Stat. 437, as

amended, 42 U.S.C. (and Supp. V) 1973

Oe Sithaperennsencnquensecqocee 18, 34

Section 4, 42 U.S.C. (and Supp. Vv)

_ Li tas + F F FS

Section 4(b), 42 U.S.C. (and Supp Vv)

i a emne. 14

Section 4(c), 42 U.S.C. 1973b(¢)_---- 33

Section 5, 42 U.S.C. (Supp. V) 1973e¢_ 1,

2, 14, 18, 19, 20, 32, 34, 35, 36

Section 12, 42 U.S.C. 1973j_..---_-_-- 1

Voting Rights Act Amendments of 1975,

CE EEE 14

Se mene, G00-O00............. =~ 33

Rule 65(d), Fed. R. Civ. P_._.------___- 30, 31

Miscellaneous:

CL Ee 14

Hearings on 8S. 407, S. 908, S. 1297, S. 1409,

and 8. 1443 (Extension of Voting Rights

' “' Aet of 1965), before thé Subddiimittee

on Constitutional Rights of the Senate

Committee on the Judiciary, 94th Cong.,

I ceemen 33

IV

Miscellaneous—Continued

H.R. Rep. No. 94-196, 94th Cong., Ist Sess. page

CHG) snemdoteeeeaneeenetntonine 33 ‘

S. Rep. No. 94-295, 94th Cong., Ist Sess. on the Supreme Court of the Gnited States

ee ee ne ee 33

OctToBeR TERM, 1977

No. 77-529

Wes Wise, Mayor or THE City or DALLas,

ET AL., PETITIONERS

v.

ALBERT L. LIPSCOMB, EBT AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case involves important questions concerning

the remedies that may be applied when an exclusively

at-large system of electing city council members un-

constitutionally dilutes the vote of black citizens. The

Court’s resolution of the issues presented may affect

remedial standards in voting rights suits by the At-

torney General authorized by 42 U.S.C. (and Supp.

V) 1971 (a) and (c) and 1973}. The case also raises

the question whether a legislatively enacted reappor-

tionment plan that incorporates the terms of an earlier

court-ordered plan is subject to the preclearance re-

quirements of Section 5 of the Voting Rights Act of

(1) |

2

1965, 79 Stat. 439, as amended, 42 U.S.C. (Supp. V)

1973e.

QUESTIONS PRESENTED

1. Whether the court-ordered reapportionment plan,

for the Dallas City Council improperly provided fc >

the at-large election of three Council members.

2. Whether, in a state covered by Section 4 of the

Voting Rights Act of 1965, a legislatively enacted

reapportionment plan that embodies the terms of an

earlier court-ordered plan is subject to the preclear-

ance requirements of Section 5 of the Act.

STATEMENT

Dallas, Texas, has had a council-manager form of

government since the City adopted a home-rule Char-

ter in 1931. Legislative authority is exercised by the

City Council; the executive is a City Manager selected

by the Council. The 1931 Charter provided for a Coun-

cil of nine members, ineluding the Mayor.’ Members

were elected, for two-year terms, on an at-large (t.e.,

city-wide) basis (App. 124, 188). Ballots contained

nine numbered “places,” one for each Council seat,

and all qualified voters in the City could cast one vote

for each place. To be elected, a candidate had to

receive a majority of the votes cast for his place

(App. 124, 188).’

The Charter of a Texas home-rule city such as

Dallas cannot be amended except by a majority vote

“2 Apart from his duties as a Council member, fire‘ Dallas Mayor

performs a primarily ceremonial function.

* Before 1931, the legislative body in Dallas was a five-member

board of commissioners. Under a 1907 state statute, each member

of this board was elected at-large (App. 188).

3

of the registered voters in the city (Texas Const. Art.

XI, §5, see App. 150-151). In 1968, the Charter was

amended by referendum to expand the size of the

Council from nine to eleven (App. 124; Pet. Br. 3).

The City was divided into eight residential districts

for Council elections. One numbered place on the ballot

was assigned to each district, and candidates for each

of those eight places were required to be residents of

the corresponding district. No residence requirement

applied to the remaining three numbered places, one

of which was the Mayor’s. Voting for all eleven places

was city-wide, and a majority vote was necessary for

election to each seat (tbid.). |

According to 1970 census data, Dallas has 844,401

residents, of whom 210,238 (25 percent) are black

and 67,902 (8 percent) are Mexican-American. Ap-

proximately 93 percent of all the black residents of

Dallas are concentrated in a predominantly black

inner-city area, characterized by relatively poor hous-

ing, low income and high unemployment (App. 124-

125). Mexican-Americans, on the other hand, live

throughout the City (App. 138).

Until 1969, no black person had been elected to the

Dallas City Council (App. 127). In elections in which

black candidates participated, racial bloc voting re-

sulted in their defeat. Black candidates who carried

the inner-city area by large majorities were defeated

by white opponents who obtained majorities in the

more populous..white residential areas of the City

(App. 125-126). Elections have been non-partisan;

slating groups rather than political parties have en-

dorsed Council candidates. The most influential slat-

4

ing group has been the Citizen’s Charter Association

(“C.C.A.’’) ; 85 percent of the candidates endorsed by

C.C.A. have won election (App. 126-127). C.C.A. first

endorsed a black candidate in 1969, and he was’

elected ; C.C.A.’s endorsement was apparently given in

return for black support of the 1968 Charter amend-

ment that expanded the size of the Council from nine

to eleven (App. 127-128).

The present lawsuit was brought in 1971 by black and

Mexican-American residents of Dallas who claimed

that the at-large system of electing Council members

unconstitutionally diluted the vote of racial minor-

ities. The complaint sought a permanent injunction

requiring all Council members to be elected from sin-

gle-member districts (App. 11). The district court

dismissed the complaint for failure to state a claim

upon which relief could be granted, but the court of

appeals reversed. Lipscomb v. Jonsson, 459 F. 2d 335

(C.A. 5). On remand, several plaintiffs, including all

of the Mexican- American plaintiffs, were dismissed

from the case for failure to respond to interrogatories

(App. 26-27). A plaintiff class, including all black

citizens of Dallas, was then certified (App. 28). Two

Mexican-Americans subsequently attempted to inter-

vene. The district court denied the application, but

specifically granted applicants the right to participate

at a remedy hearing in the event the at-large election

system was later declared unconstitutional (App. 27-

28).

On January 17, 1975, following an evidentiary hear-

ing, the district court issued an oral opinion holding

that the system of at-large elections for the Dallas

5

City Council unconstitutionally diluted the voting

strength of blacks (VIII Tr.).’ Petitioners have not

challenged this ruling. In support of its conclusion,

the court cited Dallas’s history of de jure discrimina-

tion; the concentration of blacks in an identifiable

inner-city area found to be a product of that discrim-

ination; the pattern of racial bloc voting; and the

power of the C.C.A. slating group.‘ The district court

announced that it would afford “‘the city council of

Dallas an opportunity to devise and present * * * a

plan calling for election of members of the Dallas city

council which meets constitutional standards”? (VIII

Tr. 22). A further hearing was set for February 6,

1975.

On January 20, 1975, the City Council passed by a

6-5 vote Resolution No. 75-0207, which provided

(App. 188): .

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 Coun-

' S“VTII Tr.” refers to Volume VIII of the transcript of the

district court hearing. The transcript of the court’s oral opinion

apparently constitutes Volume VIII of the entire transcript, and

we are so identifying it, even though the Roman numeral] designa-

tion has been omitted from that portion of the transcript dated

January 17, 1975.

‘These findings and conclusions also appear in the district

court’s written opinion of March 25, 1975 (App. 121-135), which

is reported at 399 F. Supp. 782 (ND. Tex.). The district court

stated that there had been a recent and significant improvement in

the City’s responsiveness to the needs of minority groups (App.

134-135), and noted that there were two blacks and one Mexican-

American on the Council, all of whom had been endorsed by C.C.A:

(App. 127-128 and n. 5; IX Tr. 80-82).

259-054—78——2

6

cil to pass an ordinance, when prepared by the

City Attorney, which will adopt the present

eight residential districts as single member dis-

tricts, with one individual Councilman to be

elected from each of the districts and living in

the district, and with three individuals, inelud-

ing the Mayor, to be elected at-large with no

residential requirements other than that the

candidate live within the City limits of Dallas.

On January 24, 1975, this resolution and an accom-

panying breakdown of population by district and race

were filed with the court as the City’s proposed plan

(App. 3).° Under the plan, eight Council members

were to be elected from single-member districts of

equal population, drawn according to the existing resi-

dential district lines; the remaining three Council

members (including the Mayor) were to be elected on

an at-large basis. All members were to be elected by

majority vote (App. 135-136).

The remedy hearing began on February 5, 1975, and

the district court stated that the purpose of the hear-

ing was “to deiermine the constitutionality of the new

proposed plan by the City of Dallas” (App. 29). Evi-

dence presented at the hearing showed that the dis-

trict populations in the City’s proposed plan deviated

from the one-person, one-vote principle. The City At-

torney’s office changed certain district lines and a re-

vised plan was submitted to the court on February 8,

1975, the final day of the hearing. The City Attorney

referred to this plan as a “proposed ordinance” (XI

Tr. +7, 12-13; see App. 136 n, 9)..

5A copy of this plan and transmittal letter has been lodged with

the Clerk.

- ee

7

As revised, the demographic pattern of the eight

single-member districts in the City’s plan was as. 8. fol-

lows (App. 143):

Percent Mexican-

District : Total population Percent black American

T 11rt

105, 559 2. 08 7. 63

1

2 105, 529 25. 90 20. 00

3 105, 759 5. 96 7. 00

4 105, 676 3. 63 3. 20

5 105, 433 - 26 10. 60

6 105, 604 73. 60 7. 20

7 105, 353 ' , 40 5. 00

8 105, 448 87. 30 3. 44

Blacks were to have clear majorities in two districts

(Nos. 6 and 8).° Mexican-Americans, who comprise 8

percent of the Dallas population and are dispersed

throughout the City, were to be in a distinct minority

for all eleven Council seats, with a maximum repre-

sentation of 20 percent in District 2.

Plaintiffs, representing the class of black citizens,

objected to the City’s plan because it provided for

three at-large places. They proposed instead eleven

single-member districts of equal population or, in the

alternative, ten single-member districts of equal popu-

lation and one at-large election for Mayor. The dis-

tricts drawn in the plaintiffs’ plans are compact and

contiguous, and their geographical configuration is

similar to that of the districts in the City’s plan (xX

* The Council considered and rejected an alternative eight,three

plan that gave blacks a majority in three of the eight single;mem-

ber districts (App. 144 n. 20). a a

8

Tr. 218).’ Under each of the plaintiffs’ plans, blacks

would constitute a majority in three districts; in a

fourth district, neither whites, blacks nor Mexican-

Americans would form a majority."

’ Plaintiffs’ ten-district plan (Pl. Exh. 108) would produce the

following demographic pattern :

Total Percent Percent Mexican-

District population black American

a sdeiaialiads 84, 291 0. 19 6. 49

Dihikcadeddds 84, 299 39. 10 22. 34

ee 84, 967 . 44 7. 06

Ee 84, 059 4.41 2. 47

Di nccsclasipaiteinn 84, 072 . 25 4. 27

Ditwecstinanos 84, 036 56. 68 4. 52

_ AEE ELIE 84, 878 . 27 3. 98

Tiial actos tuscenh sal 84, 406 61. 82 7. 10

oe 84, 092 62. 87 5. 18

Seb ecodeiaan 84, 301 23. 56 17. 06

Plaintiffs’ eleven-district plan (Pl. Exh. 109) would produce the

following demographic pattern :

Total Percent Percent Mexican-

District population black American

ae 77, 188 0. 20 7. 73

Dee 77, 172 35. 21 28. 11

1 Qeadecsnesige 76, 466 7. 95 6. 86

ie nett ueeae 76, 359 5. 02 2. 56

ee ee 76, 581 .12 4 51

a 76, 370 4. 58 7. 53

a 76, 820 . 30 2. 21

RT 76, 528 73. 71 3. 86

I ae ee “m 76, 941 60. 56 4.12

EE ee 76, 574 62. 42 5. 93

ae 77, 402 23. 73 14. 83

|

* This latter district is No. 2 in each of the plaintiffs’ plans. In

the ten-district plan, this district would be 39% white, 39% black

and 22% Mexicar-American. In the eleven-district plan, it would

be 37% white, 35% black and 28% Mexican-American, See note 7,

supra.

9

Several Mexican-Americans were allowed to inter-

vene in the remedy hearing, although not as class rep-

resentatives (App. 135). They opposed the City’s plan

but offered no plan of their own (App. 137 n. 10).

They suggested, however, that the size of the Council

should be increased to at least twenty, with each mem-

ber elected from a single-member district. This ap-

proach would allow the drawing of a district in which

Mexican-Americans constitute a majority (ibid.; App.

171).

Witnesses for the City supported the retention of

three at-large seats on two grounds. First, some City

officials testified that it was desirable to have some

members of the Council represent a city-wide view

on such matters as zoning, the budget and city plan-

ning.’ Second, City officials and other witnesses

testified that at-large voting was beneficial to Mexican-

Americans because of the power of C.C.A., the major

‘slating group. In order to broaden its base, C.C.A.

decided in 1971 to endorse a Mexican-American for

one of the three nonresidential places on the ballot.

After interviewing several Mexican-Americans, C.C.A.

selected Pedro Aguirre, who was endorsed and

elected.” According to Mr. Aguirre and every other

witness who testified on this point, it is impossible

’ ®The City Manager of Dallas and two members of the Council

stated that there was a strong need for some city-wide represen-

tation in Council deliberations on such matters (IX Tr. 75-78,

141-143, 198-200). The Mayor, however, did not think that

three at-large seats were necessary (IX Tr. 120-122), and the

Mayor pro tem was noncommittal (IX Tr, 10-13).

1° TX Tr. 80-82 (testimony of Mr. Aguirre).

10

for a Mexican-American to be elected at-large without

the endorsement of C.C.A." If the City’s plan were

implemented, C.C.A. might endorse a Mexican-

American for one of the two at-large places other

than the Mayor’s.” It is very unlikely that C.C.A.

would endorse a Mexican-American for a single-

member district seat.” To be elected under an exclu-

sively single-member district plan, Mexican-Americans

would need to form coalitions with other groups.“

The City’s witnesses who advocated the retention of

some at-large seats recognized that such a scheme

would perpetuate the dependence of Mexican-

American candidates upon C.C.A.;* that Mexican-

Americans would be forced “to negotiate [with

C.C.A.] just for the opportunity to run”;* that a

Mexican-American endorsed by C.C.A. would owe a

debt to the slating group as well as to his constitu-

“TX Tr. 29-30, 46 (testimony of Mayor pro tem George

Allen); IX Ty. 80-92 (testimony of Mr. Aguirre) ; IX Tr. 108

{testimony of Dr. Onesimo Hernandez, a member of the C.C.A.

slating board); IX Tr. 155-156 (testimony of City Manager

George Schrader); X Tr. 182 (testimony of plaintiffs’ expert

Dan Weiser) ; X Tr. 230-231 (testimony of School Board Member

Roberto Medrano).

2 [X Tr. 29 (testimony of Mayor pro tem Allen) ; [IX Tr. 112

(testimony of Dr. Onesimo Hernandez). No witness suggested

that C.C.A. might slate 2 Mexican-American for Mayor.

“IX Tr. 104-106 (testimony of Dr. Onesimo Hernandez).

Dr. Hernandez is the only C.C.A. representative who testified.

%* IX Tr. 112 (testimony of Dr. Hernandez) ; IX Tr. 126-127

(testimony of Mayor Wise); X Tr. 102-103, 113 (testimony of

Mr. Weiser).

** TX Tr. 82 (testimony of Councilman Aguirre) ; IX Tr. 155-

158 (testimony of City Manager Schrader).

* 1X Tr. 88 (testimony of Councilman Aguirre).

11

ents;*” and that the goal of Mexican-Americans was

to achieve representation on the City Council without

incurring political obligations to slating groups such

as C.C.A.”

On February 8, 1975, at the conclusion of the rem-

edy hearing, the district court announced in an oral

opinion that it accepted the City’s plan (XI Tr. 83-

105). The court recognized that exclusive use of single-

member districts was the ‘‘preferred” approach (XI

Tr. 91) but held that retention of three at-large seats

was justified for two reasons. First, the court con-

cluded that “the 8-3 system affords a greater oppor-

tunity and potential possibility for the Mexican-Amer-

ican population to participate in the political system

of Dallas * * *’’ (XI Tr. 92). Referring to plaintiffs’

proposed eleven-district plan, the court stated: “‘[I]f

we move from a total at-large system to a total single

member district, then we are diluting the potential on

the part of the Mexican-American to participate in

the political process of Dallas” (XI Tr. 94-95). As a

second justification for allowing three at-large seats,

the court found a legitimate governmental interest in

preserving a city-wide view on issues that affect the

City as a whole. In the eourt’s words, “such matters as

bond issues, zoning, city planning, [and] parks, all

* * * require a look from an overall perspective from

some representation on the City Government.”

** TX Ty, 158 (testimony of City Manager Schrader).

* 1X Tr. 88 (testimony of Councilman Aguirre) ; [X Tr. 1]1-

112 (testimony of Dr. Hernandez).

12

“The 8-3 plan would] giv[e] stabilization to the city

in offsetting and helping to prevent sectional interests”’

(XI Tr. 99, 95). Accordingly, the court held that the

City’s plan was constitutional (XI Tr. 87, 101).

In the course of its oral opinion of February 8,

1975, the district court ordered “that the election

scheduled for April of this year will proceed and elect

the City Council for this year under the City Plan

of 8-3 that has been presented to this Court” (XI Tr.

86). The court retained jurisdiction “to oversee any

ramifications of this over the next several months or

however long a period is necessary” (tbid.). The court

also stressed that “the City of Dallas is the Legisla-

tive body. They can change this next month or next

year. * * * [T]hey can alter these districts as they

see fit’ (XI Tr. 89). The court entered no written

order.

On February 10, 1975, two days after the court’s

oral opinion, the Dallas City Council passed Ordinance

No. 14,800, which provides in part:” |

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. Inps-

comb, et al. v. Wes Wise, et al., CA 3-4571-E,

and this Ordinance enacted pursuant thereto,

only the qualified voters residing within Dis-

tricts 1, 2, 3, 4, 5, 6, 7 and 8 shall be eligible

to vote for a candidate for Member of Council,

*° This portion of Ordinance No. 14,800 is reproduced in un-

dated form in Pet. App. A-2, Pet. Br. 4, and App. 189. A certi-

fied copy of the full dated ordinance has been lodged with the

Clerk of this Court.

13

Place Numbers 1, 2, 3, 4, 5, 6, 7 and 8, re-

spectively. Every qualified voter of the City

shall, in addition, be eligible to vote for a can-

didate for Place Numbers 9, 10 and 11.

The District boundaries specified in this ordinance

corresponded to the revised plan submitted to and

approved by the district court two days earlier.

On March 25, 1975, the district court issued a

written opinion in which it elaborated upon its

earlier oral findings concerning both liability and

remedy (App. 121-148). The court indicated that on

February 8, 1975, it had “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” (App.

147). Reiteratmg its earlier conclusion, the court

stated that Mexican-Americans in Dallas ‘‘benefit

to a significant extent from at-large voting” because

they ‘“‘have to some degree entered into the policy-

making structure of the C.C.A. and other slating

groups * * *”? (App. 139-140). While the court noted

that Mexican-Americans had in the past suffered

some restrictions of access to the political process, it

explicitly found that “this restriction does not

amount to present dilution” (App. 138). The court

also repeated its earlier observation that the City

Council was free to draw different district lines after

the April 1975 election (App. 144 n. 20). Again,

however, the court did not issue a. written order.”

* The section of the court’s written opinion entitled “Order”

Ceals only with respondents’ motions for attorney’s fees and costs

(App. 148-152).

259-054—78——3

14

On April 1, 1975, the Dallas City Council election

was held under the ‘‘eight/three” plan. Two blacks

and nine whites were elected (App. 153-163). The

black Council members were elected from the two

predominantly black districts. Mr. Aguirre, the in-

cumbent Mexican-American Council member, was

slated by C.C.A. for one of the at-large places, but he

was soundly defeated in the city-wide vote by a white

opponent (App. 154, 159). On the basis of these re-

sults, the plaintiffs and intervenors filed motions for

further relief (App. 153-156, 164-165). It does not

appear that the district court ruled specifically on

these motions; but on May 22, 1975, the district court

entered a written judgment granting “in all respects”

“the relief set forth in the Court’s memorandum

opinion of March 25, 1975” (App. 3). Timely notices

of appeal were filed in June 1975 (tbid.).

During the pendency of the appeals, Texas became

subject to the preclearance requirements of the Vot-

ing Rights Act of 1965. On August 6, 1975, the

President signed into law the Voting Rights Act

Amendments of 1975, 89 Stat. 400. And on September

18, 1975, the Attorney General and the Director of

the Census certified that Texas meets the require-

ments of Section 4(b) of the Act, as amended, 42

U.S.C. (and Supp. V) 1973b(b). 40 Fed. Reg. 43746.

‘As a consequence, under Section 5 of the Act, Dallas

may not “enact or seek to administer” any election

law different from that “in force or effect on Novem-

ber 1, 1972’’ without submitting the change for pre-

clearance by the Attorney General or the District

Court for the District of Columbia. See pp. 32-37,

infra.

15

In April 1976, the voters of Dallas approved the

“eight/three” plan that had been ordered into effect

by the district court and then enacted as an ordinance

by the City Council. When passed by the voters, the

“eight/three” plan became part of the City Charter

(Pet. Br. 5). Neither the ordinance nor the Charter

amendment has been submitted for preclearance to the

Attorney General or to the District Court for the Dis-

trict of Columbia.” The April 1977 City Council elec-

tion was held under the ‘‘eight/three”’ plan.

On May 9, 1977, the court of appeals reversed (App.

168-177; 551 F. 2d 1043). Relying primarily on East

Carroll Parish School Board v. Marshall, 424 U.S. 636,

the court of appeals held that, absent exceptional cir-

cumstances, court-ordered relief could utilize only

single-member districts. The court of appeals rejected

the proposition that some at-large seats on the City

21 On October 10, 1975, Dallas submitted for preclearance a re-

quest to hold a special election in District No. 6 to fill a vacancy

caused by a resignation. The City stated: “In making this sub-

mission, we are not requesting any determination as to the total

system of representation of the City Council of the City of Dallas,

but simply to determine whether the Department has any objec-

tion to our holding the special election to allow the individuals in

District No. 6 to be represented while the other issues are being

considered at a later time” (emphasis added). On November 14,

1975, the Attorney General stated that he had no objection to the

special election to fill the vacancy in District No. 6. (The sub-

mission and no-objection letters have been lodged with the Clerk,

and copies have been sent to the parties. )

On February 10, 1976, Dallas sought preclearance from the

Attorney General “to hold a special election on April 3, 1976, to

fill two vacancies in at-large positions on the City Council created

by resignations which occurred on January 30, 1976, and Feb-

ruary 2, 1976.” The City also stated that “propositions to amend

the City Charter will be presented at the election.” However, the

propositions specified in the submission did not relate to any ap-

16

Council should be retained in order to strengthen the

voting power of Mexican-Americans. In the first place,

said the court, “there has never been a determination

that [Mexican-American access to the political proc-

ess} has been constitutionally impaired’’ (App. 174).

Secondly, the court of appeals pointed to the results

of the April 1975 election and expressed skepticism

that Mexican-Americans would in fact benefit from

the “eight/three” plan (App. 175-176). The other

justification advanced by the district court, namely,

the desirability of some city-wide representation, was

not addressed by the court of appeals. The court also

did not address respondents’ contention” that the

City’s enactment of the court-approved “eight/three”

plan was ineffective because the City had not obtained

the necessary preclearance under the Voting Rights

Act of 1965. Finally, and without explanation, the

court of appeals stated that the Mayor could be

elected by city-wide vote.* Timely petitions for re-

hearing were denied (App. 178).

The court of appeals’ mandate was stayed by Mr,

Justice Powell on August 30, 1977 (App. 181-187).

INTRODUCTION AND SUMMARY OF ARGUMENT

Five years ago, this Court unanimously held that

the at-large method of electing Texas state legislators

portionment system for electing Council members; and, in par-

ticular, the submission did not state that the “eight/three” plan

would be submitted to the voters. On April 19, 1976, the Attorney

General stated that he had no objection to the special elections

and propositions specified in the submission. (The submission and

no-objection letters have been lodged with the Clerk, and copies

have been sent to the parties. )

22 See Brief for Plaintiff-Appellants 35-38.

*s Respondents have not cross-petitioned from this ruling. See

note 26, infra.

17

from Dallas unconstitutionally diminished the voting

strength of black persons in that City. White v.

Regester, 412 U.S. 755, 765-767. The district court in

this case applied the principles of White and con-

cluded that the at-large system of electing all eleven

members of the Dallas City Council resulted in similar

unconstitutional dilution of black votes. Petitioners

do not dispute the correctness of that ruling. The

only question now presented concerns the legality of

the City’s reapportionment plan, which provides for

the election of eight Council members from single-

member districts but retains three at-large seats.

That plan was originally proposed by the City

Council itself in response to an invitation from the

district court. On February 8, 1975, over respondents’

objections, the court accepted the City’s plan and

ordered it into effect for the April 1975 Council

elections. Two days later, the City Council passed an

ordinance embodying the terms of the district court’s

order, and, in April 1976, this ordinance was formally

enacted as a Charter amendment by the voters of

Dallas.

The appropriate standard governing judicial review

of a reapportionment plan depends on whether that

plan has been ordered into effect by a court or has

been enacted by the voters or their duly elected

representatives. Legislatively enacted plans are con-

strained only by constitutional bounds, Burns v.

Richardson, 384 U.S. 73, 85; court-ordered plans must

also comply with federal remedial requirements that

greatly restrict the use of at-large elections. See, ¢.g.,

Connor v. Finch, 431 U.S. 407, 415; Hast Carroll

Parish School Board v. Marshall, 424 U.S. 636, 639.

18

One additional factor comes into play when a re-

apportionment plan has been adopted by the voters

or a legislature. That factor is the Voting Rights Act

of 1965, 79 Stat. 437, as amended, 42 U.S.C. (and

Supp. V) 1973 et seq. In areas covered by Section 4

of the Act, legislative changes in the apportionment

of state or local legislative bodies cannot be imple-

mented unless precleared under Section 5 of the Act.

Connor v. Waller, 421 U.S. 656; United States v.

Board of Commissioners of Sheffield, Alabama, No.

76-1662, decided March 6, 1978. Texas has been cov-

ered by Section 4 of the Act since September 18, 1975.

See p. 14, supra.

The district court erred in ordering a reapportion-

ment plan for the Dallas City Council that involved

the retention of three at-large seats. The court failed

to comply with the repeated holdings of this Court

that single-member districts are to be preferred in

court-ordered reapportionment plans in the absence

of unusual cireumstances. See, e.g., Connor v. Finch,

supra; East Carroll Parish School Board v. Marshall,

supra; Chapman vy. Meier; 420 U.S. 1, 19; Mahan v.

Howell, 410 U.S. 315, 333. This principle is particu-

larly compelling in a ease like this one, where the pre-

viously existing apportionment has been found con-

stitutionally infirm because at-large elections have

diminished the impact of black voters.

No special circumstances justifying court-ordered

at-large elections are present here. The district court’s

stated justifications for its endorsement of the “eight/

three” plan are inadequate. The desire to maintain a

city-wide perspective on the City Council is not a spe-

cial circumstance and is, in any event, an inadequate

———

19

reason to countenance the continuing dilution of black

voting strength. Retention of three at-large seats also

cannot be explained in terms of its potential benefi-

cial effect on Mexican-American voters. The district

court expressly found that Mexican-Americans in Dal-

las have not suffered any constitutional injury, and

therefore no remedy directed toward Mexican-Ameri-

cans is necessary. And there is no indication that

preservation of three at-large places on the City

Council will in fact inerease the voice of Mexican-

Americans. Indeed, to the extent evidence is available,

it indicates the contrary.

Finally, the district court’s error in accepting the

reapportionment plan proposed by the Dallas City

Council and rejecting the alternative plans offered by

respondents was not obviated by the subsequent en-

actment of the “eight/three” plan as a Charter amend-

ment. Neither the ordinance adopted by the Council

itself two days after the district court’s order nor the

1976 Charter amendment adopted by the Dallas voters

was submitted for preclearance under Section 5 of the

Voting Rights Act. Such preclearance is required even

when a legislatively enacted plan adopts the terms of

an earlier court order. Connor v. Waller, 421 U.S. 656.

The failure to obtain the required preclearance ren-

ders the Charter amendment ineffective, and accord-

ingly this Court need not consider the constitutional

validity of that measure.

In these circumstances, the court of appeals prop-

erly concluded that respondents were entitled to the

relief they sought, t.e., election of all City Council

20

members (except perhaps the Mayor) from single-

member districts. Its judgment therefore should be

affirmed.

ARGUMENT

At issue in this case is a court-ordered reapportion-

ment plan subsequently enacted by the Dallas voters

as an amendment to the City Charter. The standards

for reviewing court-ordered plans and legislatively en-

acted plans differ. The former must conform to both

constitutional requirements and the federal law of

remedies. See, e.g., Connor v. Finch, 431 U.S. 407, 409,

415. The latter need satisfy only the Constitution. See,

e.g., Burns v. Richardson, 384 U.S. 73. In areas cov-

ered by Section 4 of the Voting Rights Act of 1965, 79

Stat. 438, as amended, 42 U.S.C. (and Supp. V)

1973b, legislatively enacted reapportionment plans

must pass an additional test. They must be precleared

under Section 5 of the Act, 42 U.S.C. (Supp. V)

1973¢c, by submission to the Attorney General or by

suit in the District Court for the District of Colum-

bia. Plans that should be but have not yet been pre-

cleared are of no force or effect. Connor v. Waller,

421 U.S. 656.

In ordering a reapportionment plan under which

some City Council members would be elected at-large,

the district court departed from remedial principles

established by this Court and thus deprived respond-

ents of relief to which they were entitled. When later

approved by the Dallas voters, the plan should have

been submitted for preclearance under Section 5 of

the Voting Rights Act. It has not been so submitted

and is therefore of no effect. Respondents remain en-

21

titled to the relief they sought in the district. court

and, accordingly, the decision of the court of appeals

should be affirmed. |

I, THE DISTRICT COURT ERRED IN ORDERING A REAPPOR-

TIONMENT PLAN UNDER WHICH THREE MEMBERS OF

THE DALLAS CITY COUNCIL WOULD BE ELECTED AT-

LARGE

This Court has repeatedly held that a court-ordered

remedy for malapportionment must comply with both

constitutional requirements and appropriate federal

remedial principles. Connor v. Finch, supra; East

Carroll Parish School Board v. Marshall, 424 U.S.

636; Chapman v. Meier, 420 U.S. 1; Mahan v. Howell,

410 U.S. 315; Connor v. Williams, 404 U.S. 549; Con-

nor v. Johnson, 402 U.S. 690. In particular, “single-

member districts are to be preferred in court-ordered

legislative reapportionment plans unless the court can

articulate a ‘singular combination of unique factors’

that justifies a different result.” Connor v. Finch,

supra, 431 U.S. at 415. This stringent standard ap-

plies even when a court decides to order into effect a

plan originally proposed by a legislative body. Hast

Carroll Parish School Board v. Marshall, supra.

When the district court accepted the City’s plan

on February 8, 1975, this case was procedurally in-

distinguishable from East Carroll: an existing appor-

tionment system had been found unconstitutional, and,

at the court’s invitation, the local government had

proposed a remedial plan. In these circumstances, the

district court should have applied settled remedial

principles and refused to order at-large elections

22

‘“‘Ta]bsent particularly pressing features calling for

multimember districts.” Chapman v. Meier, supra,

420 U.S. at 19. Chapman was decided on January 27,

i975, and in delivering its oral opinion the district

court specifically referred to this Court’s ruling

several days before (XI Tr. 84-85; see also App. 136).

The district court also expressed awareness of the

general preference for single-member districts (XI

Tr. 91; see also App. 137, 146, 147). The court never-

theless approved the retention of three at-large seats

on the Dallas City Council because it reviewed the re-

apportionment plan proposed by the Council as if it

had been a legislatively enacted plan. See XI Tr. 84-

85, 87, 89, 101; App. 136, 146-147. This was error.

The fact that a given plan has been designed by a

legislative body is not dispositive when the effective-

ness of the plan depends upon a court order. East

Carroll Parish School Board vy. Marshall, supra;™

Wallace v. House, 5388 F. 2d 1138 (C.A. 5) (on re-

mand), certiorari denied, 431 U.S. 965. The plan in

this case had not been formally enacted by the Council

when it was suby .ted to the district court; moreover,

under the T xas Constitution (Art. XI, §5), the

Council does not have the authority to alter its own

apportionment, even if it wishes to do so. Under East

Carroll, the district court should have accepted the

** In fairness to the district court, it should be noted that Fast

Carroll was not decided until March 8, 1976. This Court there

explicitly held for the first time that the established federal

remedial principles governing court-ordered plans apply to such

plans proposed but not enacted by a legislative body.

23

City’s plan and ordered it into effect only if at-large

election of three Council members was justified by a

“singular combination of unique factors” such as that

presented in Mahan vy. Howell, supra, 410 U.S. at 330-

333 (district court, operating under severe time pres-

sure, combined three single-member districts into one

multimember district in order to alleviate malappor-

tionment caused by inaccurate census data on actual

residences of Naval personnel “home-ported’’ at Nor-

folk, Virginia).

No such special circumstances are involved in this

ease. The considerations that motivated the district

court te endorse the retention of at-large elections in

Dallas are not sufficiently compelling to outweigh the

continued dilution of black voting strength that the

City’s plan would entail. One of these considerations,

the desirability of maintaining a city-wide viewpoint

on the Council, simply restates a common argument

in favor of at-large elections. It does not qualify as a

“unique factor” justifying departure from the pre-

ferred single-member district system.” If court-or-

dered reapportionment plans could use at-large elec-

tions whenever they might serve a reasonable purpose,

little would be left of this Court’s insistence that

single-member districts be used in the absence of “un-

usual circumstances” (Kast Carroll Parish School

Board v. Marshall, supra, 424 U.S. at 639). And, in

** Similarly, this Court’s requirement of a “singular combination

of unique factors” will not be satisfied merely by a showing that

multimember districts are supported by a state’s historical prac-

tices. See Connor v. Finch, supra, 431 U.S. at 415.

24.

any event, representation of a city-wide perspective

on the Council is not more important than elimination

of unconstitutional racial dilution.”

The other factor stressed by the district court is

the need to prevent improper diminution of the vot-

ing strength of Mexican-Americans in Dallas. Pro-

tection of identifiable minorities’ access to the

political process is a goal that governments may

legitimately pursue in drafting reapportionment

plans. See United Jewish Organizations v. Carey,

430 U.S. 144, 167-168 (plurality opinion). But, on

the basis of this record, the court of appeals correctly

concluded that such an objective cannot justify

retention of three at-large seats on the Dallas City

Council.

First, the district court found that Mexican-

Americans in Dallas had not suffered unconstitutional

dilution (App. 138). At-large seats are thus not

required in order to remedy a constitutional violation

(App. 174-175). Nor would the constitutional rights

of Mexican-Americans be endangered by the election

of all Council members from fairly drawn single-

member districts. United Jewish Organizations v.

26 One of the alternative plans that respondents proposed to the

district court provided for at-large election of the Mayor. The

court of appeals held that this was appropriate, and respondents

have not cross-petitioned. Accordingly, this case does not present

the question whether reservation of one at-large seat for the Mayor

may be justified on the grounds that that official should represent

all of the City’s voters and that the dilutive effect of having one of

eleven Council members elected at-large is de minimis. See Wallace

v. House, 515 F. 2d 619 (C.A. 5), vacated, 425 U.S. 947, on remand,

538 F. 2d 1138 (C.A. 5), certiorari denied, 431 U.S. 965.

— ee ee

25

Carey, supra, 430 U.S. at 166-168 (plurality

opinion) .” 7

Second, although the district court determined that

Mexican-American voters would benefit from the re-

tention of three at-large seats, that conclusion is not

sufficiently supported by the court’s findings to justify

departure from the normal remedial principle. The

district court relied on the following features of the

local political situation: Mexican-Americans comprise

only 8 percent of Dallas’s population and are dis-

persed throughout the City; without doubling the size

of the City Council, it is impossible to construct a sin-

gle-member district in which Mexican-Americans

would form a majority; under the exclusively at-large

system that prevailed in Dallas before 1975, two Mex-

ican-Americans were endorsed by the C.C.A. slating

group and elected to the Council, one in 1971 and one

in 1973; no Mexican-American has been elected to the

Council without C.C.A. endorsement, and C.C.A. prob-

ably will not endorse a Mexican-American in a single-

member district.

From this evidence, the district court concluded

that “at-large voting * * * allow[s] greater partici-

pation in the political processes * * * for Mexican-

American voters,’’ because they ‘‘have to some degree

entered into the policy-making structure of the C.C.A.

and other slating groups * * *” (App. 140). But the

** There is no contention in this case that any proposed plan is

gerrymandered against Mexican-Americans. Such gerrymander-

ing would be difficult to accomplish because the Mexican-American

population of Dallas is scattered throughout the City.

26

district court also found (App. 134; VIII Tr. 6-9)

that the predilections of these slating groups and

their prominent role in Council elections had con-

tributed to the unconstitutional dilution of black vot-

ing strength. The fact that C.C.A, has in the past

endorsed two Mexican-American candidates does not

counsel approval of a reapportionment plan that

would perpetuate minority dependence on the largesse

of C.C.A. or some other slating group.” As the district

court itself recognized (App. 134), “[m]eaningful

participation in the political process must not be a

function of grace, but rather is a matter of right.”

Graves Vv. Barnes, 343 F. Supp. 704, 726 (W.D. Tex.),

affirmed in relevant part sub nom. White v. Regester,

412 U.S. 755.

Moreover, events in the wake of the district court’s

order have belied the court’s assessment of the ad-

vantages that continued at-large voting would confer

on Mexican-Americans. When eleven at-large seats

were available, it was not surprising that C.C.A.

eventually decided to endorse a Mexican-American,

and that some white voters, casting eleven votes, gave

one to a Chicano selected and endorsed by the domi-

*® Under the single-member plans that respondents presented to

the district court, District No. 2 would be either 22% or 28%

Mexican-American and would not have a majority racial group

(see netes 7 and 8, #upra). The prospects for election of a

Mexican-American in this district would seem greater than in the

City as a whole, where Mexican-Americans comprise only 8%

of the population. Mexican-Americans ia District Ne, 2 weuld con-

stitute a swing vote and could form coalitions with either whites

or blacks. C.C.A., however, appears unwilling to endorse a

Mexican-American in 8 single-member district election.

27

nant slating group. The situation is markedly differ-

ent under the “eight/three’’ plan, when only three

Council members are elected at-large and one of them

is the Mayor. To benefit from this arrangement, a

Mexican-American candidate must be endorsed by

C.C.A. for one of the two at-large seats other than

the Mayor’s” and then must receive a city-wide ma-

jority vote in the face of racial bloc voting. In the

April 1975 election, the incumbent Mexican-American

Council member was endorsed by ©.C.A. for an at-

large seat, but he was soundly defeated by a white

opponent (App. 154, 159). This result prompted the

Mexican-American intervenors in this litigation to

move for further relief in the district court (App.

164-165) and to state categorically that “At Large

voting does not offer features which allow greater

participation in the politieal process within Dallas

for Mexican-American voters, but in fact dilutes the

vote of the Mexican-American citizen and makes it

impossible for a Mexiean-American to participate

meaningful in the election proeess’’ (ebid.).

The inadequacy of the district eourt’s justifieations

for the retention of at-large voting and petitioners’

failure to identify any compelling governmental in-

terest in support of the “eight/three” plan are par-

ticularly decisive in this case where the need for re-

apportionment arose precisely because the district

court found that black voting strength had been un-

constitutionally diluted by at-large elections. The

* C.C.A, endorsement of a minori

not appear to be a realistic cone ie nny pega =

28

numerous cases in which this Court has expressed a

preference for the use of single-member districts in

court-ordered plans all involved apportionment

schemes that were held unconstitutional because they

departed from the one-person, one-vote rule.” The

Court’s admonition that court-ordered remedial plans

should use only single-member districts reflected con-

cern about the potential undesirable consequences of

multimember districting. In particular, in Connor v.

Finch, supra, 431 U.S. at 415, the Court voiced the

fear that multimember districts might “tend to sub-

merge electoral minorities and overrepresent electoral

majorities * * *.” That fear was realized in this case.

In fashioning its remedy, the district court should

have avoided at-large voting not only because this

Court has instructed it to do so, but also because at-

large voting was the source of the very violation the

district court was seeking to eliminate. As this Court

has stated in a different context, ‘‘the nature of the

* * * remedy is to be determined by the nature and

scope of the constitutional violation.” Milliken v.

Bradley, 433 U.S. 267, 280.

Upon finding that the use of at-large elections had

produced unconstitutional racial discrimination, the

district court’s duty was “to render a decree which

[would] so far as possible eliminate the discrimina-

tory effects of the past as well as bar like discrimina-

%* The exclusively at-large election system prevailing in Dallas

before 1975 was not challenged on the.ground that it violated the

one-person, one-vote principle; indeed, it is difficult to see how a

purely at-large apportionment could be attacked on that basis.

29

tion in the future.” Louisiana v. United States, 380

U.S. 145, 154. This duty is not fulfilled by a decree

under which three Council members are elected at-

large. The same factors that were found at the liabil-

ity stage to minimize black electoral participation (1.e.,

racial bloe voting, the history of de jure dis¢rimi-

nation, and the power of white-dominated slating

groups) will presumably operate to dilute the voting

strength of blacks for three at-large seats." The dis-

trict court’s decree, therefore, did not adequately en-

sure that black voters will have an equal opportunity

with white voters “to participate in the political proc-

esses and to elect legislators of their choice’ (White

v. Regester, 412 U.S. 755, 766). +

One final point remains to be made about the dis-

trict court’s order. It applied only to the April 1975

City Council election. When the court accepted the

City’s proposed reapportionment plan, it explicitly or-

dered the plan into effect for “the election scheduled

for April [1975] * * *” (XI Tr. 86). The directive

was repeated several weeks later in the eourt’s. writ-

ten opinion (App. 147). On neither oecasion.did. the

court indicate that its order would govern any .elec-

tion other than the one that was about to occur. The

“eight/three” plan was devised, submitted, and ap-

proved under substantial time pressure, and was: in-

tended by the court as a temporary measure to guar-

81 When a district court must formulate a remedy for racial

discrimination, the force of proof presented at the liability. sbage

“does not dissipate at the remedial stage of the trial.” Jnéernational

Brotherhood of Teamsters v. United States, 431 U.S, 324, 361-362.

30

antee the constitutionality of the imminent Council

election. This conclusion is reinforced by the eourt’s

repeated references to the possibility that Dallas

might wish to change the plan in the near future (XI

Tr. 89, 101). It is also confirmed by the City’s belief

that the court’s order was of finite duration and that

a legislative enactment was necessary to perpetuate

the “eight/three” scheme. This belief is evidenced by

the Council’s enactment of the plan as an ordinance

two days after the court’s oral approval, and by the

submission of the plan to a referendum of the Dallas

voters in April 1976, so that it could be approved as

a Charter amendment pursuant to state law.

Moreover, even if the district court may have in-

tended its order to operate beyond April 1975,” the

order by its terms refers only to the election conducted

at that time. Under the specificity requirements of

Rule 65(d), Fed. R. Civ. P., a distriet court must

frame its orders so that the parties and appellate

courts “will know what the court intends to require

and what it means to forbid.” International Long-

* The district court stated that it would retain jurisdiction “to

oversee any ramifications of this over the next several months or

however long a period is necessary” (XI Tr. 86). Also, in granting

the City’s request to modify certain Charter requirements for sig-

natures on nominating petitions, the court provided that “[t]his

modification [will be effective] for the April 1975 election only”

(App. 147-148). This latter comment may be read cither as sup-

port for the proposition that no part of the district court’s order

was intended to apply beyond April 1975 or as an indication that,

with the exception of the modification of signature rales, the court-

ordered reapportionment plan would govern indefinitely (since the

court-ordered plan could be operated without this modification ).

31

shoremen’s Assn. v. Philadelphia Marine Trade Assn.,

389 U.S. 64, 76. See Schmidt v. Lessard, 414 U.S. 473."

An important element of Rule 65(d) is that the in-

tended duration of an injunction must be preseribed

by the district court and not left to speculation.

Granny Goose Foods, Inc. vy. Brotherhood of Team-

sters d Auto Truck Drivers, Local No. 70 of Alameda

County, 415 U.S. 423, 444. The district court’s order

here seemingly applies only to the April 1975 election,

and should be so construed under Rule 65(d).

The fact that the ‘‘eight/three’”’ plan, as approved

and ordered into effect by the district court, con-

trolled only the April 1975 election does not render

respondents’ challenge to the district court’s decision

moot. In their complaint, respondents sought a perma-

nent injunction barring Council eleetions until “the

City of Dallas is redistricted into individual member

voting districts” (App. 11). The district court denied

that relief, and the question whether the denial was

error is not moot—unless, in the interim, Dallas has

adopted a valid reapportionment plan for its City

Council. As the remaining portion of this brief dem-

onstrates, it has not.

** Rule 65(d) is designed to serve two functions—to give fair

notice to parties who may be subjected to contempt proceedings

for alleged violations of an injunction, and to ensure informed

appellate review. Schmidt v. Lessard, swpra, 414 U.S. at 476-477.

The second function is directly relevant here. If the duration of

district court’s order were determined by inferences and guess-

work, rather than by express language, it would be “impossible for

OT hee what it is reviewing.” Jd.

at 477,

32

Il. THE 1976 CHARTER AMENDMENT IS INEFFECTIVE BE-

CAUSE IT HAS NOT BEEN PRECLEARED UNDER SECTION 5

OF THE VOTING RIGHTS ACT

Although the lower courts did not rule on the con-

sequences of the failure to submit the 1976 Charter

amendment for preclearance under Section 5 of the

Voting Rights Act of 1965, 79 Stat. 439, as amended,

42 U.S.C. (Supp. V) 1973e, that issue was raised by

respondents before the court of appeals“ and is

properly before this Court as a basis for affirm-

ance. See, e.g., United States v. New York Tele-

phone Co., No. 76-835, decided December 7, 1977,

slip op. 6 n8; Massachusetts Mutual Life Ins.

Co. v. Ludwig, 426 U.S. 479; Langnes v. Green,

282 U.S. 531, 535-539. The issue should be resolved

here rather than remanded to the lower courts.

See Perkins v. Matthews, 400 U.S. 379, 386-387.

The facts necessary for an appropriate disposi-

tion are in the record, and the governing legal prin-

ciples are well-established.

Since September 18, 1975, Texas has been covered by

Section 4 of the Voting Rights Act, 79 Stat. 438, as

amended, 42 U.S.C. (and Supp. V) 1973b. See Bris-

** See p. 16, supra, Plaintiffs could not have raised the Section

5 issue before the district court because Section 5 did not apply to

Texas until the case was pending on appeal. See p. 14, supra.

** As originally enacted in 1965, Section 4 applied tu any state

or political subdivision for which (1) the Attorney General has

determined that on November 1, 1964, it maintained a “test or

device,” and (2) the Director of the Census has determined that

less than 50% of its voting-age residents were registered for, or

voted in, the presidential election of November 1964. The phrase

“test or device” was defined to include the following requirements

for registration or voting: literacy and educational achievement

33

coe Vv. Bell, 432 U.S. 404. Accordingly, under Sec-

tion 5 of the Act, the City of Dallas cannot

“enact or seek to administer” a reapportionment

plan “different from that in force or effect on

November 1, 1972’ without first obtaining pre-

clearance from the Attorney General or the Dis-

trict Court for the District of Columbia. See United

tests; good moral character requirements; and voucher systems.

See 42 U.S.C. 1973b(c) ; South Carolina v. Katzenbach, 383 U.S.

301, 317-318. When the Act was reenacted, as amended, in 1970, the

coverage formula of Section 4 was expanded to include November

1968 voting and registration results; the definition of “test or de-

vice” in Section 4(c) was retained. 84 Stat. 315.

In Texas, less than 50% of the voting-age population voted in

the presidential elections in 1964 and 1968. Until 1975, however,

Texas was not covered by Section 4 because it did not use a “test or

device” for registration or voting as defined in Section 4(c). See

H.R. Rep. No. 94-196, 94th Cong., Ist Sess. 17 (1975); S. Rep.

No. 94-295, 94th Cong., Ist Sess, 25 (1975). When the Act was

reenacted, as amended, in 1975, the definition of “test or device”

in Section 4(c) was expanded to include the use of English

language registration or voting materials in any state or political

subdivision in which the Director of the Census has determined

that more than 5% of the voting-age citizens are members of a

single language minority. 89 Stat. 400-402. The House and Senate

Committees which drafted this legislation stated that this change

was principally designed to bring Texas within the preclearance

requirements of Section 5 because of that State’s long history of

voting discrimination against blacks and Mexican-Americans.

H.R. Rep. No. 94-196, supra, at 17-22; S. Rep. No. 94-295, supra,

at 25-30. Of particular concern to Congress were at-large election

systems in Texas which diluted the voting strength of blacks and

Mesican-Americans. H.R. Rep. No. 94-196, supra, at 19-20; S.

Rep. No. 94-295, supra, at 27-28. See also Hearings on S. 407, 8.

903, S. 1297, S. 1409, and S. 1443 (Extension of the Voting Rights

Act of 1965) before the Subcommittee on Constitutional Rights

of the Senate Committee on the Judiciary, 94th Cong., 1st Sess.

461-462 (statement of Dr. Charles L. Cotrell) ; id. at 234 (state-

ment of Representative Barbara Jordan) (1975).

34

States v. Board of Commissioners of Sheffield, Ala-

bama, No. 76-1662, decided March 6, 1978; Georgia Vv.

United States, 411 U.S. 526. Until such preclearance

is obtained, the 1976 Charter amendment has no force

or effect.” Connor v. Waller, 421 U.S. 656; Morris v.

Gressette, 432 U.S. 491, 497 n. 8. This is true notwith-

standing the fact that the amendment adopts the

“eight/three” plan approved by the district court.

Connor v. Waller, supra, holds that in a state

covered by Section 4 of the Act, a legislatively-enacted

reapportionment plan is subject to the preclearance

requirements of Section 5 even if enacted during re-

apportionment litigation. The facts of Waller are

almost identical to those presented here. In 1975,

the Mississippi legislature reapportioned both of. its

houses through the enactment of two state laws. With

respect to 81 of Mississippi’s 82 counties, these laws

adopted the exact details of federal district court

reapportionment orders;*’ in the remaining coun-

** Because under the Texas Constitution (Art. XI, §5) voter

approval is necessary to effectuate a change in Dallas’s election

laws, the discussion in the text has been limited to the April 1976

Charter amendment. Nevertheless, the preclearance requirements

of Section 5 would also apply to the February 10, 1975, ordinance.

Although that ordinance was passed before Texas became subject

to Section 5, the preclearance requirements cover any attempt to

“enact or seek to administer” any election law different from that

“in force or effect on November 1, 1972.” 42 U.S.C. (Supp. V)

1973c (emphasis added). See Perkins v. Matthews, 400 U.S.

379, 394-395.

** The 1975 Mississippi legislation provided that 79 of the state’s

counties would be reapportioned according to the precise terms of

the 1971 district court order in Connor v. Johnson, 330 F. Supp.

506 (S.D. Miss.), which governed the 1971 legislative elections.

35

ty the laws adopted a district court order with a

slight modification.” A three-judge district court then

sustained the constitutionality of the legislation, rely-

ing heavily on the fact that the new laws embodied

earlier court-ordered plans. Connor v. Waller, 396: F.

Supp. 1308 (S.D. Miss.). This Court summarily: re-

versed, holding that the district court should not have

reached the constitutional challenges to the Mississippi

Acts because those Acts were not and would not be

“effective as laws until and unless cleared pursuant

to §5 [of the Voting Rights Act of 1965].’’ Connor v.

Waller, 421 U.S. 656. There is no suggestion in the

Court’s opinion that the reversal was based on the dif-

ference in one minor detail between the legislative

enactments and the court orders upon which they were

modeled.

Even if the question were an open one, there are

strong reasons for concluding that the inclusive lan-

guage of Section 5 covers legislative reapportion-

ments modeled upon pre-existing court orders. A leg-

islative enactment such as Dallas’s 1976 Charter

amendment does more than simply ‘‘incorporate” a

federal court’s order. A court can modify its order or

grant additional relief upon a proper factual show-

See Connor v. Waller, 396 F. Supp. 1308, 1309-1310, 1316-1317,

1332. In two other counties, the 1975 legislation adopted ‘the terms

of federal district court reapportionment orders relating specifi-

cally to those counties, See id. at 1317.

*§The 1975 Mississippi legislation adopted a federal district

court reapportionment order relating to Jackson County but com-

bined a small adjacent county (George) for the purpose of elect-

ing representatives at-large. See id. at 1318-1319.

36

ing.” In this case, for example, respondents could

argue that the results of elections held since the order

was issued undercut the court’s finding that Mexican-

Americans would benefit from the City’s proposed

plan. But if the plan is enacted as legislation, modi-

fication is substantially more difficult; respondents

would bear the burden of proving that the legislation

is unconstitutional. Because such legislation adopt-

ing a court-ordered plan has consequences broader

than the court order itself, the legislation should

be subject to preclearance under Section 5. Only

existing and binding court-ordered reapportion-

ment plans should be exempt from the inclusive

language of Section 5. Connoy v. Johnson, 402 U.S.

690; Morris v. Gressette, supra, 432 U.S. at 497 n.

8; East Carroll Parish School Board vy. Marshall,

supra, 424 U.S. at 638-639, n. 6.

In sum, the Charter amendment is not effective as

law because it has not been submitted for preclear-

ance under Section 5.“° The amendment therefore can-

not provide authority for the conduct of Dallas City

Council elections. Nor are those elections any longer

governed by the district court’s 1975 order (see pp.

* See, e.g, Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

424, 437-438; System Federation vy. Wright, 364 U.S. 642, 647-

648; United States v, Swift & Co., 286 U.S. 106.

*° If the Charter amendment were submitted for preclearance,

it would be evaluated according to the standards announced in

Beer y. United States, 425 U.S. 130. Because the amendment has

not yet been subjected to the preclearance procedure, it is unneces-

sary now to determine whether the Dallas provision satisfies con-

stitutional requirements under the Fourteenth and Fifteenth

Amendments.

37

29-31, supra). Regardless of the status of that order,

however, the court of appeals correctly determined

that the district court’s decision improperly departed

from remedial principles established by this Court

and thereby deprived respondents of relief to which

they were entitled. Single-member districts remain

the preferred mechanism for court-ordered reappor-

tionment, and petitioners have not identified any valid

reason why that preference should not be followed in

this case.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

Wave H. McCres, Jr.,

Solicitor General.

Drew 8S. Days III,

Assistant Attorney General.

PETER BUSCEMI,

Assistant to the Solicitor General.

Brian K. LANDSBERG,

Rospert J. REINSTEIN,

Attorneys.

ApriL 1978.

U.S. GOVERNMENT PRINTING OFFice: 1978