Jurisdictional Statement — Leroy Symm, Tax Assessor-Collector of Waller County, Texas v. United States

LE ROY SYMM, Appellant,

v

UNITED STATES OF AMERICA, et al., Appellees.

JURISDICTIONAL STATEMENT

SUBJECT INDEX

The Waller County Registration Process Im-

The Lower Court Is Implementing A Definition Of

Residence Different Than The Definition In The Texas

Election Code And The State Definition Is Not Chal-

SS Ge. ee EE. necacbancénapcnnsncedsecesdbes

Bellas And Wilson ececcccccccccesecsecccescceses

17

& 2 &

0

TABLE OF CITATIONS

General Corporation v. Askew, Sil F.2d 710

Aersn Cir) appeal damineed, 423 US. 908 (1975) ..

ie + ae = 70 F.2d 927 (D.C. Cir. 1934) cert. den,

293 US. SS S.Ct. 84 (1934) .........----00--

)

Baltimore S. S. Co. v. Phillips, 274 US. 316, 321, 47 S.Ct.

GED, GHB CBUEID ccccccccccccccccccscesepecccccece

Brickel v. Chicago, B. & Q. R. Co., 200 F. Supp. 240

(Wy. 2962) ..cccccccccccccccccccccccccccsceseces

Bright v. Baesler, 336 F. Supp. $27 (ED. Ky. 1971) .-

Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972) .

ty on Ng Use, 85 SCL. 795 a “

i v. 380 U '

ap eS See ee eee ee NY. Fee 7, 9, 10, 29, 30

Chicago, R. I. & P. Ry. Co. v. Schendel, 270 US. 611,

__<_ 38,40

Chicot County Drainage District v. Baxter State Bank, 308

US. 371, 378, 60 S.Ct. 317, 320 (1940) ............ 3?

Commissioner of Internal Revenue v. Sunnen, 333 US. $91,

fF © ww 36

Cromwell v. County of Sac, 94 US. 195, 198 (1876) . 36

Dunn v. Blumstein, 405 US. 330, 92 S.Ct. 995 (1972) .. 9, 18,29

Estevez v. Nabers, 219 F.2d 321 (Sth Cir. — a 36

Frazier v. Callicutt, 383 F. Supp. 15 (N.D. Miss. 1974) . 28

Garvey v. Cain, 197 S.W. 76S, 772 (Tex. Civ. App—

SED Giese GP Ge scanccececececcnceseseenee 18

Guerra v. Pena, 406 SW.2d 769 (Tex Civ. App—San

Sele -Gie, GP Glee eedecaccccedschatabentenia 13

Heckman v. United States, 2274 US. 413, 32 S.Ct. 424 a

SED “ecéithdpisanstiebasdanadioaniaiaiadiiaeiales

Jolicoeur v. Mibaly, 488 P.2d 1 (Cal. 30

Jones v. United States, 228 F.2d $2 ( Cir. 1955) . 35

Jordon v Overstreet, 352 S.W.2d 296 (Tex. Civ. App—

ee Te. 2 Ge caccceccessecssoesnbnuntics 1S

Kelliher v. Stone & Webster, 7S F.2d 331 (Sth Cir. 1935S) 37

Koblitz v. Baltimore & Ohio R. Co, 164 F. Supp. 367

a Ga SD - nechctabeenscentootenanaaaeien 36

Lester v. NBC, 217 F.2d 399 (9th Cir. 1955), cert. den,

SS Ga. GEG, Ge Gee, GES Gee ccccccecocensésocs 36

Lyons v. Salve Regina College, 422 F. Supp. 1354, 1357

oo

~

eee ree eee Se See Se Se ee ee ee ee ee ee ee ee ee eee eS

™

AES Page

McBride v. Cantu, 143 S.W.2d 126 (Tex Civ. App—

San Antonio 1941, Bo writ) .... ~~... ....ceeeneceuss 1S

Miller v. National City Bank of New York, 166 F.2d 723

Ce GE, Bee edcadewwcdssacde sececsccccsoccece 36

Malis v. Bartlett, 377 S.W.2d 636 (Tex. Sup. 1964) .... 12

Moreno v. Marba Productions, Inc, 296 F.2d $43 (2nd

Ge, GREED ccecccsccccnccecevcccccecccccccceseces 35, 37

Moss v. Nat! Life & Accident Ins. Co., 385 F. Supp. 1291

(W.D. Missouri 1974) ...............00ccneeeeunss 17

ee oe aoe a Gillette Safety Razor Co.,

295 F.2d 362 (Sth Cir. 1961) ...................- 35

Ownby v. Dies, 337 F. Supp. 38 (ED. Tex 1971) . 29

Reiter v. ‘Universal Marion Corp., 299 F.2d 449 (D.C. Cir.

Dy, ndcitintinenineniiaennnmatinaddidteastninine 35

Shivelhood v. Davis, 336 F. Supp. 111 (C.D. Va 1971) 30,31

Sloane v. Smith, 351 F. Supp. 1299 (M.D. Pa 1972) . 29

Stratton v. Hall, 90 S.W.2d 865 (Tex. Civ. App.—El Paso

OO ene 15

United States v. Haytian Republic, 154 US. 118, 14 S.Ct.

— BBR re ee pee 37

Weiss v. United States, 227 F.2d 72 (2nd Cir. SEC), eumt.

den. 350 US. 936, 76 S.Ct. 308 (1956) .............. 35

Whatley v. Clark, 482 F.2d 1230 (Sth Cir. 1973) cert.

RE eT > ae 9, 10, 22, 27, 30

pew Columbia Gas & Electric Corp. 186 F.2d

464 (3rd Cir. 1950) cert. den, 341 US. 921, 71 S.CL

ff er ee ee 36

1101 (1940) SESCeseesSeceoscooeseceeseosecoodeoes 3S, 37

Wilson v. Symm, 341 F. 8 (SD. nh Pn .wcenme pessem

Worden v. Mercer County oo, Ss Ane

2 \ _eaanoe a ai RS 30

CONSTITUTION AND STATUTES

Constitution

United States Constitution

Fourteenth Amendment .................2,4,5,9,32,33,38

EE A a ee a 2,4,5

Twenty-Sitth Amendment ........... 2,3, 4, 5, 6, 7,30, 32,38

Page

U. S. Statutes

United States Code

28 USC:

GORD ccadeccectusceeueabeneneaneeeee 2

Set, GED coetéccc cece cedestesecoesteessedannes 2

42 US.C.:

Gee, BAGS eccccces: seuvocescééosnunnnen soeeuee 33,38

Ren GENO ccaccdkscScbeeubseaneeaeae 2

Sec. 1971(a)(2)(A) ........- -oiduadiaaanin 33

Ban, GIPRED codccccccccocceceuseseaccenecnnes 2

Gen: GD tan ddccéécccccécsdenbeunanneneenn 2

Ban, SERED coc ccccccccaccececceseccestossen 2

i Oe eee 2

mh, Gee weboccvcceveseaseesseensaaeeee 32,33

SSD ceedeoccecécodéecdéescseenneeneeel 33

State Statutes

Texas Election Code

ON EES 2,42

Be EE coccceocetcocceesccsesnenseene 2,42

BE EE § acececcecessdceeeesseneeneeaeeee 2, 10, 42

Bee Ge caccheécéencecesoéunenteeaenn 2, 10, 12,42

Article $.08(e)- SD cenctecscéenanneneel 10, 11

Res Se opncccasccanceasenasesenee 18

Re Gee. cccccccescectbocunesensenenn 9, 22, 23, 26

CD Se 2, 11,42

I EEE 2, 10, 42

Article $.13b, Suodivision 1 ............0+--00-- 42

fj: ___ Soe 2, 11, 12,42

RED GAD ccccacecceocecsenaesuaal 2, 11, 12, 42

IN THE

Supreme Court of the United States

OcTOBER TERM, 1977

No.

LE ROY SYMM, Appellant,

Vv.

UNITED STATES OF AMERICA, et al., Appellees.

On Appeal From The United States District Court

For The Southern District Of Texas

JURISDICTIONAL STATEMENT

ppellant appeals from the final judgment and injunc-

tion of the United States District Court for the Southern

District of Texas, entered on March 3, 1978, and sub

mits this Statement to show that the Supreme Court of the

United States has jurisdiction of the appeal and that a

OPINIONS BELOW

The opinions of the District Court for the Southern

District of Texas, Houston Division, are reported in 445

2

F. Supp. 1245 (1978), 430 F. Supp. 920 (1977) and

422 F. Supp. 917 (1976). Copies of such opinions and

the order or judgment accompanying each are included

in the separate volume entitled “Rule 15 Appendices to

Jurisdictional Statement”.

JURISDICTION

This suit was brought under the Fourteenth, Fifteenth

and Twenty-Sixth Amendments to the Constitution of the

United States, and 42 U.S.C. 1971(a), 1971(c), 1973,

1973j(d), 1973bb, and 28 U.S.C. 2201. The final judg-

ment and injunction of the District Court was entered

on March 3, 1978, and notice of appeal was filed in that

court on March 27, 1978. The jurisdiction of the Supreme

Court to review this decision by direct appeal is con-

ferred by Title 28, United States Code, Section 1253, and

Tide 42, United States Code, Section 1973bb.

STATUTES INVOLVED

The 26th Amendment to the United States Constitution,

42 U.S.C., Section 1973bb, and Articles 1.03, 5.01, 5.02,

5.08, 5.09a, 5.10a, 5.17a, 5.18a of the Texas Election

Code are not alleged to be invalid, but they are involved

in the case, and are therefore included in the separate

volume entitled “Rule 15 Appendices to Jurisdictional

Statement”.

QUESTIONS PRESENTED

(1) Whether, or to what extent, state requirements of

residence as a prerequisite to voting should be emascu-

lated by federal courts under the guise of enforcing the

26th Amendment.

3

(2) Whether the 26th Amendment authorizes a federal

court to implement a definition of voting residence

different than the definition contained in the Texas

Election Code, when the validity of the state definition is

not challenged in the suit.

(3) Whether the 26th Amendment authorizes a fed-

eral court to supplant the judgmental determination of resi-

dence which the Texas Legislature left to the discretion

of the individual registrars of voters, when the state

statutory provisions are not challenged in the suit.

(4) Whether the appellant has denied voter registra-

tion on account of age, or rather, on account of non-

residence

(5) Whether the District Court correctly distinguished

the contrary holdings and final judgments in two prior

cases involving the same real parties and the same causes

of action.

(6) Whether the District Court correctly decided that

the Secretary of the State of Texas has the authority un-

der Texas law to direct any registrar of voters in Texas

not to use a questionnaire to determine whether an

applicant for voter registration is a resident of the county

in which he is attempting to register.

STATEMENT OF THE CASE

This case involves voter registration practices in Waller

County, Texas. The same practices and the same Defend-

ant Symm have twice before been the subject of federal

court litigation and prevailed. Wilson v. Symm, 341 F.

Supp. 8 (S. D. Tex. 1972) and Ballas v. Symm, 351 F.

Supp. 876 (S. D. Tex. 1972), aff'd, 494 F.2d 1167 (Sth

Cir. 1974) (hereinafter Wilson and Ballas).

4

In the present case the United States sued the State

of Texas, the Secretary of State of Texas, the Attorney

General of Texas, Waller County, Texas, and Le Roy

Symm, Tax Assessor-Collector (registrar of voters) of

Waller County, Texas, under the Voting Rights Act and

the 14th, 15th and 26th Amendments, alleging discrim-

ination on the basis of age and race. While only registra-

tion practices within Waller County were complained of,

the State of Texas, its Secretary of State and Attorney

General, were included as defendants because they al-

legedly have the authority under the Texas Election Code

to stop the registration practices coniplained of. These

three state-level defendants originally answered by deny-

ing that they possessed such authority, but subsequently

amended their answers to assert such authority and a

cross-claim to enjoin Symm from engaging in the sub-

ject practices. Symm denied all allegations and by a

cross-claim sought a declaratory judgment that the Sec-

to direct him or any other registrar of

Xas not to use a questionaire to determine

formly implemer ‘he meaningful residence requirements

of the Texas Elution Code, irrespective of the age. stu-

dent status or race of the applicant for voter registra-

tion. If the initial application for voter registration,

5

personal knowledge, existing registration rolls, or ad

valorem tax rolls objectively indicate Waller County

residence, the applicant is registered; if not, the applicant

is sent a questionaire pertaining to residence. (Copy at-

tached to District Court opinion at 445 F. Supp. 1262).

If the completed questionnaire and prior information taken

together objectively indicate Waller County residence, the

applicant is registered; if not, the applicant is sent notice

of the opportunity for a hearing, which can likewise

establish Waller County residence and result in registra-

tion. If the applicant is rejected after the hearing, he or

she is informed in writing of the right to an expedited

appeal to state district court, which no rejected applicant

has pursued.

The United States claims the Symm practices prevent

an indeterminable number of students at Prairie View

A & M University from voting in Waller Court, while

nonstudents similarly situated are supposedly allowed to

vote. The practices allegedly discriminate, against such

students on the basis of age and race ha thereby vio-

late the Voting Rights Act and th Ahi, 15th and 26th

support in the evidence. The lower

this failure of proof and based its

on on the 26th Amendment and the Texas Elec-

tion Code.

The District Court granted the injunctive relief sought

by the United States against Symm, and denied the re-

lief sought against the State of Texas, the Attorney Gen-

eral of Texas, the Secretary of State of Texas, and Waller

6

County, Texas. The District Court also granted the relief

sought by the State of Texas on its cross-claim against

Symm, and denied Symm’s cross-claim against the State.

Symm is the only appellant in this Court. The appellees

are the United States, the State of Texas, the Attorney

General of Texas and the Secretary of State of Texas.

THE QUESTIONS ARE SUBSTANTIAL

Overview

This is the most recent and most destructive in a series

of decisions by lower courts (federal and state—none

reviewed by this Court) which have seriously weakened,

if not destroyed, any meaningful residence requirement

as a prerequisite to voting. The result in these cases is

contrary to the philosophy and language of several rather

recent opinions by this Court. All of the lower court

decisions supposedly implement the 26th Amendment,

but the implementation is only indirect at best, while the

effect on residence requirements is direct and catas-

trophic. Most of the decisions, including this one, deal

with college students and the difficult question of whether

their voting residence is in the college community or

elsewhere. The specific connection with the 26th Amend-

ment is rarely discussed by the lower courts and is usually

left to the vague assumption that an unknown number

of the students are 18-20 years old, which apparently

overrides all else, including residence requirements. None

of the decisions, including this one, involve denying the

right to vote altogether. The only issue is where to vote.

The answer, according to the lower courts, is in the col-

lege community because traveling elsewhere or voting

absentee may have the effect of discouraging an un-

7

determined number of 18, 19 and 20 year olds from

voting. This assumed effect should be justified if the ap-

plicants are not residents of the college community. The

26th Amendment does not guarantee the vote to non-

residents. It is important that a meaningful residence

requirement be protected by this Court, and it can be

protected without limiting the 26th Amendment.

In the present case, the inescapable and unexaggerated

effect of the decision is to judicially determine that any-

one who says “I am a resident”, is a resident. No further

inquiry by the registrar of voters is permitted. This re-

sult renders numerous provisions of the Texas Election

Code null and void, and the provisions were not even

challenged in the suit. The decisicn is direct federal

interference in Texas election procedures, which should be

discouraged.

Perhaps the most ironic element of the lower court’s

decision in this case is the superficial distinctions it draws

between the three federal decisions which have dealt

with the same Defendant Symm, the same college stu-

dents, and the same voter registration practices. The two

earlier decisions were in favor of Symm and nothing has

changed since then. The doctrines of res judicata and

stare decisis should control this case but they did not

prevail before the lower court.

The foregoing overview will be discussed in more detail

in the remaining sections of this Statement.

A Meaningful Residence Requirement

Is Vital to the Electoral Process

In Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775

(1965) the Court struck down a provision of the Texas

belict. . | We suen—end Gis b 0 Gems w be

iterated—that Texas has the right to require that all

multary penoane! earlled to vote be bona Bie resident

they, a all ther qualied residents have right t an

at 91.94, ‘85 SCL at 777-779, The opinion by Mr.

dence in Texas has always required a freely exercised

clusive, but is considered with the actual facts and cir

of citizens, such as students at colleges and

residence”. 380 U.S. ai 95, Sime ene:

Gafing pursgagh cf Ge majesty cpinien, Ge

take reasonable and adequate steps. as have of

to see that all applicants for the vote actually fulfill the

syusements of bene Side susldenee”

Cotagm a teenuaanty ansenieguea te

umstein 405 US. 330, 32 SCu. 995 (1972),

lated the 14th Amendment. The Court did not, however,

“As already noted, a State does have an interest in limit-

ing the franchise to bona fide members of the com-

munity.” In discussing Carrington v. Rash, the Court

states: nn corer Se eeey we

winnow successfully from the ranks . . . those whose

residence within the State is bona fide’, conclusive pre

interests. affected”. 405 US. at 351, 92 S.Ct. at 1007.

objective indicia of bona fide residence as a dwelling,

car registration, or driver's license.” 405 U.S. at 352,

92 S.Ct. at 1008. Symm is using “more precise tests”

a8 as es Cane Ch extteer" to winnow

In Whatley v. Clark, 482 F.2d 1230 (Sth Cir. 1973),

cert. aren See one S We cous aye eee

to “fide residents. Carrington v.

Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675

(1965). Indeed, such a restriction ‘may be neces-

10

to the basic conception of a political

cocmauaty.. .” 482 F.2d at 1232.

It is important to note that Whatley is not entirely con-

sistent with Carrington v. “ash.

Article 5.02 of the Texas Election Code provides that

a@ person must be a resident of the state, eighteen years

8 agp tn, and have complied with the registration

further provides that “[n]o person may vote in an clec-

tion held by a county, municipality, or other politica

subdivision unless he is a resident of the subdivision on

the day of the election; and, except, as expressly permit

ted by some other provision of this code or another

statute of this state, no person may vote in an election

precinct other than the one in which he resides.” Article

5.10a provides that “[a] person is entitled to register as

a voter in the precinct in which he has his legal residence

(ie., domicile), as defined in Section 40 of this code

per + Soe, Vernon’s Texas Election Code) .

means domicile; i.c., one’s home and fixed place of

suier-dhians chad denne aipamtaartteene

in that county. It then provides that “[tJhe registrar of

SS ion of voters

Acces 5.18e sulstes to change of suidence end

ncellation or transfer of registration. In this context

Subdivision S(a) provides thet “the registrar may

utilize amy means available to determine whether a

registered voter’s current legal residence may be other

than that indicated as the voter's legal residence on the

registration records.” Subdivision 6 authorizes the regis-

Se ee ee ee eee ee

by the Secretary of State in making the determina

To any tho least, & would bo 0 curious cihuction to permit

the use of a questionnaire in the context of a change of

lenge procedure of Article 5.17a in the context of the

a ee ee ee eee

cm Gadneun ddeumietenntialedines.

See ee ee eee

at either stage of the registration process.

provisions of the Texas Election Code and does not chal-

ee ee eee

Residence is defined in Article 5.08 of the Texas Elec-

tion Code, which was quoted earlier, and reference is

low have ho ‘Danas coasts conmteusd Go ton? Adib 0.

Bartlett, 377 S.W.2d 636 (Tex. Sup. 1964) is usually

cited when the meanin; of the tom “residence” is

meee fy mocap per tregen eg encseor tyson Baya

mittee from placing the name of another candidate for

the same position on the ballot. It was alleged that Bart-

13

Stovall, Tex. Civ. App. 64 S.W.2d 360, writ refused:

Prince v. Inman, Tex. Civ. App., 280 S.W.2d 779,

2 aterm In re Garneau, 7 Cir., 127 F. 677,

Neither bodily presence alone nor intention alone

will suffice to create the residence, but when the

two coincide at that moment the residence is fixed

ee ee 377 S.W.2d

parm, gp was a law student at Baylor University in

Waco, but the court held that his residence was at Canton

in Van Zandt County, because when he left there after

a one or two day visit, it was for a temporary absence

(to complete law school) with a fixed intention to return.

The court did not hold and it was not urged that Bartlett

ever became a resident of Waco where he attended

college.

In Guerra v. Pena, 406 S.W.2d 769 (Tex. Civ. App.—

San Antonio 1966, no writ), the court quotes the follow-

ing rule from earlier Texas cases: “A removal to divest

tent to make a mew domicile and quit the old. Mere re-

moval, coupled with an intent to retain the original domi-

cile and return to it, will not constitute a change.” 406

S.W.2d at 776.

In applying this rule, the court held that migrant

workers who maintained a permanent residence in a

precinct and were gone part of the year because of their

work, continued as residents of such precinct. Similarily,

14

teaching school in another county, or working in a ship-

yard while waiting for a job in the subject county, or

working part of the year in another state on construction

jobs, did not change the voting residence of the individ-

uals involved since there was no evidence of an intent

to make a new domicile and quit the old. In contrast,

evidence of intent to quit the old and make a new domi-

cile was present with respect to a single girl, 27 years

of age, who had worked over a year im a factory

in Houston, and a divorced man who had worked full-

time for a radio shop in Evanston, Illinois, for the last

one and one-half years. These two single people only re-

turned on holidays to visit their parents.

The Texas court was searching for the same objective

indicia of residence as Symm in this case. The intent to

make a place one’s home and no plans to move or return

elsewhere in the foreseeable future. The objective indicia

with regard to the migrant farm workers, school teachers

and construction workers showed a temporary absence

(whether for six months or four years) because there

- employmen et eneaity eemaneen

af changiag ot 0 tormenta putes ta Go Seams Oo

future or express another’s subjective thoughts with com-

raged But we can make the best effort possible

onsids ing all of the objective indicia, as well ss the

c ndividual, which is exactly what Symm

is doing. The chjective indicia for many Gemuitery ste-

dents at Prairie View A & M show a temporary, educa-

tional relocation and no intent to make a new home.

15

Most people who leave home to go to college consider

the move in the limited context of completing an educa-

tion and have no intention of making their school address

Sas Same her Ge tmperny schooling process. It

material whether “temporary” means one day or four

years. What is important is no intention of leaving in

the foreseeable future—after college.

In Jordan v. Overstreet, 352 S.W.2d 296 (Tex. Civ.

umont 1961, no writ), the court states that:

“Whether 2 person is a resident of a district or not is

tinctly one of intention and of fact. (citing case) Even

though he may be temporarily out of the district. if his

atention is to return, it is generally held that he is a

qualified voter in the district.” (citing cases) 352 $.W.2d

at t 300. Removal for medical attention and recuperation

were held not to cause a change of voting residence.

McBride v. Cantu, 143 S.W.2d 126 (Tex. Civ. App.—

San Antonio 1940, no writ) repeats the rule that the

tstimony of a witness a6 to his intention is not neces-

sarily controlling on the issue of residence, but is an

clement which may be considered by the authority

authorized to determine the fact issues. In Stratton v.

Hall, 90 S.W.2d 865 (Tex. Civ. App.—El Paso 1936,

writ dism'd), the court says: “While declarations of voters

are generally admissible to show residence, such declara-

tions are not controlling if the actual facts and circum-

stances justify a contrary conclusion.” (citing cases). 90

S.W.2d at 866.

In the present case, the District Court relied on the

activities of other tax assessor-collectors across the State

of Texas as evidence of the meaning of residence. 445

F. Supp. at 1257. The comparison between counties only

16

clouds the true issues in the case. Under the Texas

Election Code, Mr. Symm cannot control the other tax

assessor-collectors and they cannot control him. The uni-

form standard in Texas in residence, as defined by the

Texas Election Code, and Mr. Symn makes a conscienti-

ous effort to implement that standard. 82.85% of the

tax assessor-collectors who were deposed by the United

States testified that they would not register an applicant

as a voter if they knew that his or her good-faith resi-

dence was in another county. 84.28% testified that they

knew they had a satutory duty to register as voters only

those applicants who were good-faith residents of the

county. 87.17% knew they had a statutory right to

question an applicant concerning his or her good-faith

residence, and 88.57% knew they had a statutory right

to challenge an applicant who was not a good-faith resi-

dent of the county. 87.14% knew that the term “resi-

dence” is defined by the Texas Election Code. We are

not suggesting that these individuals are trying to violate

the law. They are simply not exercising their recognized

statutory authority to its fullest extent. A common reason

for making no effort to determine residence was lack of

manpower and logistical impossibility. Will this Court

tell Mr. Symm he can no longer obey the Texas laws

simply because no one else does? As with the definition

of residence, the United States is suggesting that this

Court should redefine the obligations and authority of

voter registrars in Texas although the United States has

not challenged the present source of their obligations and

authority—the Texas Election Code. The effect of the

United States’ argument is a challenge to the statutory

election system in Texas but without pleadings, argu-

ments or evidence as to the validity of the various

provisions.

17

A bona fide residence requirement unintentionally,

but inescapably, affects an indeterminable number of

students living in the dormitories at Prairie View A & M

University because they often have not and could not

meet the definition of residence found in the Texas Elec-

tion Code. This same failure of students to satisfy resi-

dency requirements is often found in the context of

diversity jurisdiction where “out-of-state students are

generally viewed as temporary who are located in the

state only for the duration of and for the purpose of

their studies.” Lyons v. Salve Regina College, 422 F.

Supp. 1354, 1357 (R.I. 1976). Accord, Campbell v.

Oliva, 295 F.Supp. 616 (E.D. Tenn. 1968) and Moss

v. National Life and Accident Insurance Co., 385 F.

Supp. 1291 (W.D. Missouri 1974).

The Waller County (Symm) Registration

Process Implements A Meaningful

Residence Requirement

The evidence clearly shows that Mr. Symm and his

deputies approach every application for voter registration

with the question of whether the applicant is a resident of

Waller County. (1/31/78 Tr. 18). This question can

be answered in any of several ways, each of which is

rationally related to determining whether the applicant

is in fact a bona fide resident. Some of the indicia of

residence are a Waller County native, having family on

the registration list, being married with both spouses

living in Waller County, personal knowledge or observa-

tion of the individual by Mr. Symm or one of his

deputies, homestead property on the ad valorem tax

roles, automobile on the registration or tax roles. (Tr.

77-79, 84-85). Each of these are objective indicia of the

18

subjective definition of residence—one’s home and fixed

place of habitation to which he intends to return after

any temporary absence. Without these objective indicia, it

would be impossible to implement any meaningful resi-

dence requirement—“necessary to preserve the basic

conception of a political community” Dunn v. Blumstein,

supra, 92 S.Ct. at 1004,—because the purely subjective

or abstract test of “intention” necessarily could not be

applied by anyone except the voter himself, and by him

in as many different ways and in reference to as many

different places as might suit his convenience at different

times. The voter could claim a residence anywhere and

the facts would have no bearing upon the matter. See,

Garvey v. Cain, 197 S.W. 765, 772 (Tex. Civ. App.—

Beaumont 1917, no writ). If a person was born in Waller

County and is applying to vote there, there is certainly

a reasonable indication that he intends to make Waller

County his home. If an applicant is married and his

spouse also lives in Waller County, there is again a

reasonable indication that the couple intend Waller

County as their home, and this indication is supported

by Article 5.08(f)-(h) of the Texas Election Code.

Having family on the registration list is also a reasonable

indication of a person’s home. It is hard to imagine a

better indication of one’s home than appearance on the

ad valorem tax rolls as a homestead owner. Similarly,

automobiles can only be registered in the county of one’s

residence.

If Mr. Symm or one of his deputies know an applicant

through social or business contact, innumerable indicia of

residence may be present. For instance, they may be

aware that the individual has operated or worked at a

local business for years, or has attended the same church

19

for years, or has lived at the same place for years, and

so on. Any one or more of these factors reasonably indi-

cate the home (residence) of the applicant.

In an effort to discredit the foregoing indicia of resi-

dence the United States selected 121 registered voters in

Waller County for interview by agents of the Federal

Bureau of Investigation. The interviewees were selected

from Mr. Symm’s answers to interrogatories and were

people who had been registered as voters without use

of the questionnaire or tax rolls. Defendants did not par-

ticipate in the selection process and had no contact with

the interviewees prior to the interviews. (1/31/78 Tr. 87-

89). Sixty-six of the interviewees were white (54.55%);

forty-nine were black (40.50% ), and six were of other

race or origin( 4.96%). Ten of the interviewees were

Prairie View A & M College students at the time they

were registered (8.26%), and approximately twenty

were eighteen, nineteen or twenty years old at the time

of registration. The United States’ own reports disprove

any claim of racial or age discrimination, or any effort

to exclude Prairie View A & M students. These reports

and all of the other evidence simply shows that Mr.

Symm and his deputies are attempting to the best of their

ability to register only residents of Waller County.

The United States asked each of the interviewees

“Would Mr. Symm or any deputy know:” (followed by

each question on the questionnaire). Obviously, the inter-

viewees could only state whether or not they had per-

sonal knowledge about Mr. Symm or any of his deputies,

and could only speculate about Mr. Symm’s knowledge.

Mr. Symm supplied the best evidence of his knowledge

at trial through Waller County Exhibit 10, which was an

20

alphabetical list of the interviewees. Mr. Symm and his

deputies placed their initials by the name of each inter-

viewee with whom they were personally acquainted, and

about whom they knew all or part of the information

inquired into by the questionnaire. (1/31/78 Tr. 89-92,

128). Mr. Symm had previously testified that it was the

common practice in the office to discuss an applicant and

determine whether anyone in the office had personal

knowledge about the person. (Tr. 77-78). Of the 121

interviewees, Mr. Symm and his deputies were personally

acquainted with fifty-eight (47.54% ). Mr. Symm alone

was acquainted with forty-one or 33.61%. (Waller Ex.

10). The United States and the lower court claimed that

Mr. Symm or his deputies should have known all of the

interviewees, but Waller County Exhibit 11 (the corres-

ponding application of each interviewee) shows that many

were registered on some basis other than personal knowl-

edge, such as Waller County native or married.

If an applicant supplies none of the foregoing indicia

of residence, Mr. Symm turns to the questionnaire. The

questionnaire is not limited to students. (Tr. 85-86).

Nine questionnaires sent to nonstudents during 1976 are

attached to Mr. Symm’s first affidavit. (Waller Ex. 5).

This evidence of questionnaires to nonstudents was ig-

nored by the District Court. The United States implied

that these were the only questionnaires ever sent to non-

students, which misinterprets the affidavits and the state-

ments therein. The majority of the questionnaires are sent

to students at Prairie View A & M University, not because

they are students per se, but because they have not sup-

plied one or more of the initial indicia of residence.

The United States also argued that out of the 545 ap

plicants who were requested to complete the questionnaire

21

in 1976, only twenty-five were registered without a hear-

ing on the basis of the questionnaire. The United States

failed to point out, and the lower court attached no sig-

nificance to, the fact that 209 of the questionnaires were

returned by the post office as “refused” or “unclaimed”

and 295 were received but not returned to Mr. Symm’s

Office. (See Waller Ex. 5).

The total information supplied by the questionnaire

and application is considered together and no one factor

is dispositive or controlling. (Tr. 86, 126). The initial

application and the answers to the questions provide a

more complete picture from which to determine the resi-

dence of the applicant. Again, Mr. Symm and his depu-

ties are searching -for objective indicia of the subjective

or abstract definition of residence. The subjectivity is on

the part of the applicant and is placed there by the Elec-

tion Code’s definition of residence. But in order to imple-

ment a meaningful residence requirement, Mr. Symm

must search for objective indicia of the subjective intent.

Thus, the questionnaire inquires into the present status

of the applicant, the duration of his physical presence

in the state and county, his statements as to residence, his

future plans, ownership of property indicating his home,

local memberships and ties with the community, and

where he or she lives when not physically present in

Waller County. It is hard to imagine a more reasonable

method of searching for objective indicia of the sub

jective intent. The only other alternative is to give com-

plete and controlling weight to the statements of the

applicant, without regard to the facts and circumstances.

Such an approach is contrary to established Texas law

for determining residence and eliminates any meaning-

ful residence requirement. Obviously, many applicants

22

who state they are residents are in fact residents. But just

redeem. EERE «© SS es a

cant is a resident of Waller County. he is not rejected

for a hearing. (Tr. 87). A rejected applican

the right to appeal to the State District Court, and Mr.

Symm so notifies him in writing. No one has ever exer-

cised this avenue of appeal. (Tr. 87).

Both the United States and the lower court expressed

justifiable concern about Mr. Symm’s statements regard-

ing Article 5.08(k) of the Texas Election Code. We

agree that as long as Whatley v. Clark is the law, Mr.

ae aS ee See eee

injunctions proper under the present case law. But an

Symm is actually doing, and there is much more involved

> Ge cate Gate. Fiat, tem b ees ae

justifiable question in fact whether many of the dormitory

students are residents. Historically, many of the dormi-

tory students have not supplied indicia of residence at any

Stage of the process, and the great majority of them have

23

megpapprnn gst seme at eran 0 eat

pportunities (Tr. 747) Waller County Exhibit

have mailing addresses in Waller County, which is caly

3.63% . 60.89% of those who remained in Waller County

ob GURY SANENES 60 WERE, THE OHNE WE Oe

group. These facts raise a justifiable and reasonable

question that would exist irrespective of Article 5.08(k).

Mr. Symm’s testimony (Tr. 81-83, 126-127) and the

F.B.I. Reports offered by the United States show that

Prairie View A & M students are registered the same as

anyone else if they supply the same indicia of residence

ES E SUSE ED. Se ieee Coen See Sa

missing. (Tr. 83, 127). In fact, the F.B.I. apes dee

Gas 0 Rage eNRED Vee Ao ee

actually remain in Waller County after graduation

detsen tay Uihames for the Unie’ Stats (ell Pablo

View A & M students) show that ten were registered

to vote somewhere other than Waller County and at least

two others had not applied in Waller County. Sidney

by the District Court) testified that he was registered

a ee ee eee oe ae ae

24

“I am a resident of Dallas County.” (79). Leon Kirk

said his “address at home” was Fort Worth. (172).

foregoing it is obvious that Article 5.08(k)

simply articulated a question in fact which does not arise,

It is also apparent that what we are talking about in this

case is the meaning of “residence” in Texas and not

9 NH

Texas Election Cate—tets home and fixed piace of

bitation to which he intend

state “{I]} am a resident” and will be entitled to registra

of residence, and has no idea whether he in fact satisfies

ee ee

to define residence as one’s home and fixed place of

metas So ance ees oo anaes See

any effort to define voting residence for the State of

a ee

The United States asked and the lower court held that

as ee ee

tion contained in 5.08(k) of the Texas Election

voting residence. We agree that as long as Whatley v.

Clark is the iaw, students should not be presumed non-

residents simply because they are students. But there is

The United States and the District Court are in effect

ee ee

> Uhh te ler te ane ie 6 tempora

oad So ae as few ea

f dem tel bee ee The missing link in this

ee ee

Coun did. is pemady cies Gen Gs

nt Ge ae ee Symm and want hm

The United States and Go lower count sitet gs Glue

In Frazier v. Callicutt, 383 F.Supp. 15 (N.D. Mass.

—— on the merits of the case, the court carefully

ae a eas Symm, supra, with

A AA A A A A TT NMI cm Sa am

class, i, im aeserdense with Dlcsisippi

law.” 383 F.Supp. at 20.

Mr. Symm does not summarily reject college students.

Sloane v. Smith, 351 F.Supp. 1299 (M.D. Pa. 1972)

presented an entirely different factual situation from the

case at bar. The County Board of Elections summarily

rejected the voter registration applications of students.

Mr. Symm looks for the same objective indicia of resi-

dence for students and non-students. Even with the entire-

ly different fact situation, the Sloane court agreed that

“{a] State has the power to require that voters be bona

fide residents of the relevant political subdivisions and

an appropriately defined and uniformly applied require-

ment of bona fide residence may be necessary to preserve

the basic conception of a political community, and there-

fore could withstand close constitutional scrutiny. [citing

Dunn v. Blumstein and Carrington v. Rash, supra).” Id.

at 1303.

Ownby v. Dies, 337 F.Supp. 38 (E.D. Tex. 1971) was

a consent judgment involving a residency presumption

of the Texas Election Code (Art. 5.08), which has since

30

been repealed. It has as little application to this case as

Whatley v. Clark, supra should have. Neither case re-

verses the presumption or holds that a student is auto-

matically a resident for voting purposes of the county

where he attends college.

Bright v. Baesler, 336 F.Supp. 527 (E.D. Ky. 1971)

involved a discriminatory misapplication of residency

statutes by local officials. This same showing cannot

be made in the present case. Mr. Symm will register

student or non-student applicants if indicia of residence

are present. As far as the 26th Amendment is concerned,

Bright favors the Defendants in the present case, and

not the United States. One of the most important prob-

lems with the case is that it fails or refuses to follow

Carrington v. Rash, supra, and makes no effort to dis-

tinguish the facts or explain the reasons why Carrington

should not be followed.

Worden v. Mercer County Board of Elections, 294

A.2d 233 (N.J. Sup. 1972) is clearly distinguishable on

the facts. One election official testified that he could

recall no instance where he permitted registration by a

student whose parents lived outside New Jersey. Students

were given written notices which flatly stated that

“Students registering at Trenton State College cannot

register to vote in Ewing Township”. These facts are

entirely different from the case at hand.

Jolicoeur v. Mihaly, 488 P.2d 1 (Cal. Sup. 1971)

dealt with an irrebuttable presumption of residence not

based in fact. We are here concerned with determining

the true residence of applicants for voter registration.

In Shivelhood v. Davis, 336 F.Supp. 1111 (D. Vt.

1971), the opinion accompanied a preliminary injunction

—

OE GS OE Ge

2 ere:

31

and the court pointed out that “any decision as to the

propriety of a preliminary injunction does not reflect our

opinion on the merits of final relief”. 336 F.Supp. at

1113. The court also recognized that domicile is larely

a question of fact and it would be improper for the

court to review the applications of each class member

and decide who was entitled to vote. The applicable

state statute required that the registration authority deter-

mine whether an individual “is domiciled [in the political

subdivision] as his permanent dwelling place, with the

intention of remaining there indefinitely, or returning

there if absent from it.” The registration authority inter-

preted this as requiring applicants to intend to remain

permanently. The court decided that this was error be-

cause “permanently” and “indefinitely” are not synony-

mous. Thus, the case is already distinguished from the

one at bar because the Texas statutes define residence

in a different, although similar, fashion. Moreover, Symm

does not require the intent to remain permanently as an

element of residence. The Waller County Defendants

are carefully following the Texas statutory definition of

residence while the registration authority in Shivelhood

was misinterpreting the applicable statutory definition.

Furthermore, the applicable Vermont statute provided

that the written application under oath constituted prima

facie evidence of residence and the registration authority

was required to place on the voter checklist any person

who filed such statement unless the authority had suf-

ficient evidence to rebut the statement. No similar pre-

sumption or prima facie case of residence is found in

the Texas Election Code.

The opinion went on to hold that students could not

be required to fill-out a supplemental questionnaire un-

32

less all applicants were required to complete the same

questionnaire. This coincides with the Waller County

procedure of sending the questionnaire to any applicant

who has not supplied initial indicia of residence, which

procedure was expressly approved in Ballas v. Symm,

supra.

The opinion in Shivelhood continues:

“We stress, however, that the examples we have

listed do not provide an exhaustive list and that

we have stated only those factors that the Board

may not consider conclusive and have not attempted

to indicate those factors which we think would

justify a Board of Civil Authority in determining

that an applicant was not domiciled in a given town.”

336 F.Supp. at 1115.

In contrast, the lower court here has legislated exactly

what guidelines and information may be accepted as in-

dicating the residence of an applicant.

The Cause Of Action In This Case

Is The Same As Ballas And Wilson

The doctrine of res judicata should bar this suit and

it is the primary focal point of this section. But even

if we assume it does not apply, the doctrine of stare

decisis cannot be avoided.

The plaintiffs in Wilson alleged causes of action under

the 14th and 26th Amendments (as does the United

States in this case), and under 42 U.S.C. § 1983. Each

of the individual plaintiffs in Wilson was black and each

was a student at Prairie View A & M. Among other

things, they claimed that students were singled out for

more onerous treatment in determining their residency

SS

———

33

and asked that the questionnaire procedure used by Symm

be declared unconstitutional and void. (The identical

claim and request are made by the United States.) The

objectionable questionnaire was attached to the complaint

as Exhibit A. It is identical to the questionnaire involved

in the present case. It is also important to note that

Bob Bullock, then Secretary of State of the State of Texas,

was a Defendant in Wilson. The present Secretary of

State was a Defendant here. The Wilson Court held that

the argument predicated on the 26th Amendment must

fail because the plaintiffs were denied registration on the

ground of nonresidency and not on account of age. This

holding was predicated on a factual finding that Defend-

ant Symm declined to register plaintiffs after reaching a

good-faith determination that plaintiffs were not residents

of Waller County. This good-faith determination was

based on the same questionnaire and procedures that are

challenged in the present suit. It is also interesting to

note that while the racial discrimination claim under

42 U.S.C. § 1971 was abandoned, the Court still ex-

pressly found no discrimination on the basis of race and

added that “the fact that all plaintiffs are Negros is no

more than a fortuitous consequence of the fact that the

only aggregation of college students in Waller County

happens to be at Prairie View, which for historical

reasons, has a predominantly Negro student body. It

follows that the statutory and decisional law relating to

racial disfranchisement is for the most part irrelevant to

this suit.” Jd. at 13. The same is true in the present case.

In Ballas, causes of action were alleged under the

Fourteenth Amendment, and 42 U.S.C. §§1971(a)(2)

(A), 1983 and 1988. (The United States relies on

§1971[a]). Ballas, a student at Prairie View like Wilson,

34

brought the action on behalf of ali persons who applied

to Symm for voter registration but were subjected to

different standards, practices or procedures in determining

their eligibility. Once again, the claimed “different stand-

ards, practices or procedures” equalled the questionnaire.

The District Court refused to certify the suit as a proper

class action. 351 F.Supp. at 890. The Court of Appeals,

however, found a class from the record before it and de-

fined that class as “those who protest the use of ques-

tionnaire per se.” 494 F.2d at 1172. The claims of that

class were held to be rendered moot because of the Court

of Appeals’ holding that Symm’s “use of the questionnaire

to determine residency is not a violation of the Equal

Protection Clause or the Voting Rights Act” — yet it is

precisely this same class on whose behalf the Govern-

ment brings this suit! The specific prayer of the com-

plaint here is for a declaration that the use of the ques-

tionnaire is unlawful and for an injunction restraining

“further use of any such questionnaire as a prerequisite

to voter registration in Waller County (Complaint, pp. 4,

5). The plaintiff in Ballas attached the questionnaire as

Exhibit 3 to his complaint and prayed for a declaration

that the questionnaire was unlawful and for an order for

mass registration of the class to whom it had been sent.

(Ballas Complaint, Paragraphs V, X, Prayer, Exhibit 3).

Note also that the questionnaire was attached to the Third

Amended Complaint (the trial complaint) in Wilson as

Exhibit A and, again, there was a prayer that the use of

the questionnaire by Symm be declared unlawful and

that he be enjoined from using it to determine residency

(Wilson Third Amended Complaint, p. 4).

In each of the three cases, the same basic right and the

same basic wrong are alleged with slight variations in

EE we

35

language and approach. The crux of the matter in each

case is Mr. Symm’s use of the same questionnaire to de-

termine the residence of voter registration applicants who

supply no earlier objective indicia of residence. Accord-

ing to each of the plaintiffs, the questionnaire procedure

supposedly equals discrimination on the basis of age and

race. The majority of the applicants who are asked to

complete a questionnaire are students at Prairie View

A & M because they have failed to supply any indication

of residence in Waller County. Essentially, each case in-

volves an effort to avoid doing anything other than com-

pleting an initial application for voter registration. The

effort in each case is by or on behalf of the applicants

who have been required to submit more than the initial

application.

Mere repetition of the same basic cause of action

should not be tolerated, whether it is sought through

variation in theory or by pleading new facts. Weiss v.

United States, 227 F.2d 72 (2nd Cir. 1955), cert. den.

350 U.S. 936, 76 S.Ct. 308 (1956); Jones v. United

States, 228 F.2d 52 (D.C. Cir. 1955); Wilson Cypress

Co. v. Atlantic Coast Line R. Co., 109 F.2d 623 (Sth

Cir. 1940), cert. den. 310 U.S. 653, 60 S.Ct. 1101

(1940); Reiter v. Universal Marion Corp., 299 F.2d 449

(D.C. Cir. 1962) (second suit characterized Defendant’s

conduct as continuous course of conduct rather than

isolated acts and demanded injunction); Moreno v. Mar-

bil Productions, Inc., 296 F.2d 543 (2nd Cir. 1961)

(from contract to tort); Norman Tobacco & Candy Co.

v. Gillette Safety Razor Co., 295 F.2d 362 (Sth Cir.

1961) (from breach of contract to breach of anti-trust

laws); Anselmo v. Hardin, 253 F.2d 165 (3rd Cir. 1958)

(in second deportation proceeding, from entry without

36

visa to entry without inspection); Miller v. National City

Bank of New York, 166 F.2d 723 (3rd Cir. 1948);

Allen v. Johnson, 70 F.2d 927 (D.C. Cir. 1934), cert.

den. 293 U.S. 572, 55 S.Ct. 84 (1934); Williamson v.

Columbia Gas & Electric Corp., 186 F.2d 464 (3rd Cir.

1950) cert. den. 341 U.S. 921, 71 S.Ct. 743 (1951);

Brickel v. Chicago, B. & Q. R. Co., 200 F.Supp. 240

(Wy. 1961) (from conversion of ore to gross negligence

in failing to maintain standard established by law for

protection of plaintiff's property from unreasonable risk

of harm; plaintiffs “cannot separate their grounds to

reach the same result via a different theory, keeping their

second theory in reserve, in a suit subsequent to the first

dry run”); Estevez v. Nabers, 219 F.2d 321 (Sth Cir.

1955); Lester v. NBC, 217 F.2d 399 (9th Cir. 1955),

cert. den., 348 U.S. 954, 75 S.Ct. 444 (1955); Koblitz

v. Baltimore & Ohio R. Co., 164 F.Supp. 367 (S.D. NY.

1958). It is clear from the foregoing cases that variation

in form rather than in substantive grounds does not

create a new cause of action for res judicata purposes.

A related principle under the federal law of res judicata

is that a party must raise all claims that are a part of the

cause of action under adjudication. A final judgment on

the merits constitutes an absolute bar to a subsequent

action, not only as to every matter which was offered

and received to sustain or defeat the claim or demand,

but as to any other admissible matter which might have

been offered for that purpose. “Such demand or claim,

having passed into judgment, cannot again be brought

into litigation between the parties in proceedings at law,

upon any ground whatever.” Cromwell v. County of Sac,

94 U.S. 195, 198 (1876). Accord, Commissioner of In-

ternal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct.

37

715, 719 (1948); Chicot County Drainage District v.

Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320

(1940); Baltimore S.S. Co. v. Phillips, 274 U.S. 316,

321, 47 S.Ct. 600, 602 (1927); Aerojet-General Corpora-

tion v. Askew, 511 F.2d 710 (Sth Cir.) appeal dismissed,

423 U.S. 908 (1975).

Various tests have been suggested for determination

of what constitutes a cause of action for purposes of res

judicata.

(1) Whether the same right is infringed by the same

wrong. Baltimore S.S. Co. v. Phillips, supra, 47

S.Ct. 600.

(2) Whether “there is such a measure of identity that

a different judgment in the second [action] would

destroy or impair rights or interests established

by the first” judgment. Moreno v. Marbil Produc-

tions, Inc., supra, 296 F.2d at 545.

(3) Identity of grounds. Wilson Cypress Co. v. At-

lantic Coast Line R. Co., supra, 109 F.2d at 627

(“not identity of form, but of grounds”).

(4) Whether the same evidence would suffice to sus-

tain both judgments. United States v. Haytian

Republic, 154 U.S. 118, 14 S.Ct. 992 (1894);

Kelliher v. Stone & Webster, 75 F.2d 331 (Sth

Cir. 1935).

Aerojet-General Corporation v. Askew, supra, is a recent

case which combines the tests.

Under any of the approved tests, this suit is barred.

The same right (equal treatment of applicants for voter

38

registration) is supposedly infringed by the same wrong

(more stringent procedure, i.e., questionnaire). Wilson

and Ballas held that Mr. Symm had the right to use the

questionnaire for the purpose of determining residency,

thereby promoting the integrity of the election process.

It is obvious that the judgment in this case impairs his

right to use the questionnaire and thereby jeopa: ‘izes the

integrity of the electoral process in Waller County. The

grounds asserted in this case (questionnaire and registra-

tion procedures = discrimination on account of age and

race) are virtually identical to Ballas and Wilson. Even

the form of the claims are the same (14th and 26th

Amendments, 42 U.S.C. 1971). Finally, the same evi-

dence would sustain all three judgments. As Mr. Symm’s

affidavits show, the procedures and the form of the

questionnaire have been the same since 1971. Those

identical procedures and questionnaire have twice before

been held valid. Superficial distinctions between the three

cases should not be upheld.

The Real Parties In Each Of The

Three Cases Are Identical

The United States contends it is not bound by Ballas

and Wilson because it was not a party to either suit.

But under the Federal law of res judicata, a person may

be bound by a judgment even though not a party if one

of the parties to the suit is so closely aligned with his

interest as to be his virtual representative. In Chicago

R.l. & P. Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420

(1926), the Supreme Court approved the foregoing prin-

ciple with a quotation from an earlier Court of Appeals

decision as follows:

ee en Ee

39

“And, conversely, in United States v. Des Moines

Valley R. Co., 84 F. 40, 28 C.C.A. 267, where a

suit in the name of the government was brought to

enforce the right of a private party, it was held that

a prior adverse adjudication by a state court in a

suit against him personally, determining the same

issues, was available as an estoppel against the gov-

ernment. The ground of the decision was thus stated

(pages 44, 45 (28 C.C.A. 272)):

‘Inasmuch, then, as the government sues for the

sole benefit of Fairchild, and for the professed pur-

pose of reinvesting him with a title which he has

lost, we are of opinion that, whether the present ac-

tion be regarded as brought under the Act of March

3, 1887 (24 Stat. 556, c. 376 (Comp. St. Sec. 4895

et seq.) ), or as brought in pursuance of its general

right to sue, the government should be held estopped

by the previous adjudication against the recl party

in interest in the state court. The subject-matter and

the issue to be tried being the same in this proceed-

ing as in the former actions, the losing part, on the

former trials ought not to be permitted to renew

the controversy in the name of a merely nominal

plaintiff, and thereby avoid the effect of the former

adjudications. Southern Minnesota Railway Exten-

sion Co. v. St. Paul & S. C. R. Co., 12 U.S. App.

320, 325, 55 F. 690, 5 C.C.A. 249. This doc-

trine was applied by this court in the case of Union

Pac. Ry. Co. v. U. S., 32 U.S. App. 311, 319,

67 F. 975, 15 C.C.A. 123, which was a suit brought

by the United States under the Act of March 3,

1887, wherein we held that the United States was

bound by an estoppel which might have been in-

voked against the real party in interest if the suit had

been brought in his name, because it appeared that

the United States had no substantial interest in the

controversy, and was merely a nominal plaintiff.”

270 U.S. at 619, 46 S.Ct. at 423.

40

The Schendel case arose from an accident on the line of

the railway company in lowa. The employer instituted

proceedings under the lowa Workmen’s Compensation

law and the Court held that the action was barred by

res judicata because of a prior final judgment rendered

in the Iowa courts determining that the employee was

killed in intrastate commerce. The prior action was

brought by the administrator of the deceased employee

for the benefit of the surviving widow. Thus, the real

party in both cases was the same (the surviving widow).

In the present case, the real parties are those applicants

for voter registration who are asked to complete the

questionnaire, which group is comprised predominantly of

students from Prairie View A & M. In Ballas and Wilson,

the same real parties were involved.

Conversely, in Heckman v. United States, 224 USS.

413, 32 S.Ct. 424 (1912), the Court held that the United

States had the capacity to maintain a suit to set aside

conveyances made by Indian allottees of allotted lands

and that the allottees need not be joined. The defendant

in that case insisted that, unless the allottees who had

executed the conveyances were brought in as parties, he

was in danger of being subjected to a second suit by

the allottees. Answering that contention, the Court said:

“But if the United States, representing the owners

of restricted lands, is entitled to bring a suit of this

character, it must follow that the decree will bind

not only the United States, but the Indians whom

it represents in the litigation. This consequence is

involved in the representation. (Citing cases) And it

could not, consistently with any principle be tole-

rated that, after the United States, on behalf of its

wards, had invoked the jurisdiction of its courts to

ee a ew

41

cancel conveyances in violation of the restrictions

prescribed by Congress, these wards should them-

selves be permitted to relitigate the question.” 32

S.Ct. at 434-35.

Ballas and Wilson should preclude or control this case.

The Pendent Cross-Claims

The United States sued the State of Texas, the Secre-

tary of State of Texas, and the Attorney General of

Texas, in addition to the Waller County Defendants,

claiming they had the authority under the Texas Election

Code to stop the registration practices complained of.

The Secretary of State of Texas originally answered

this claim in the following language:

“This Defendant would show that although the

Secretary of State is statutorily designated as the

chief elections officer of the State of Texas, that each

individual tax assessor-collector of each county

of the State of Texas is statutorily empowered and

required to administer the voter registration laws of

the State of Texas and operates autonomously and

independently of the Secretary of State in admini-

stering such laws. Each assessor-collector is the ad-

ministrative authority to determine residency of any

applicant for registration, and the Secretary of State

is not permitted by law to substitute his judgment

for that of the county assessor-collector.”

(emphasis added)

The answer of the State of Texas and the Attorney

General contains almost identical language.

On September 1, 1977, the Secretary of State of Texas

changed his position and adopted Emergency Rule

42

004.30.05.313, which provides “No questionnaire or

additional written information shall be required prior

to the registration of any applicant for voter regis-

tration who has properly completed a voter registration

form which has been prescribed by the Secretary of

State”. Simultaneously, the Secretary of State directed

Symm “to discontinue any voter registration procedure

which requires an applicant to provide any written

information not required by Article 5.13b, Subdivision 1,

Vernon’s Texas Election Code”.

The foregoing emergency rule and directive form the

basis of the cross-claims between the State and Symm.

The District Court held in favor of the State and enforced

the directive by its injunction.

The Texas Election Code, articles 1.03, 5.01, 5.02,

5.08, 5.09a, 5.10a, 5.17a, 5.18a, and Bullock v. Calvert,

480 S.W.2d 367 (Tex. Sup. 1972) make it clear that

the judgmental residency determination is left to the in-

dividual tax assessor-collectors under Texas law, and

the Secretary of State cannot, and does not, have the

unconstitutional power to abrogate legislative enactments.

Additional argument and authorities pertaining to the

pendent cross-claims will be presented in a brief on the

merits if permitted by the Court.

CONCLUSION

For the reasons stated, the questions presented by

this appeal are substantial and of general public import-

ance. It is submitted that this Court should grant plenary

consideration, with briefs on the merits and oral argu-

ment, and reverse the judgment below and render judg-

43

ment that the appellees take nothing by their respective

Respectfully submitted,

WILL SEARS

MICHAEL T. POWELL

823 Two Houston Center

Houston, Texas 77002

(713) 654-4454

Counsel for Appellant