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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 1105

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1072%3A1. Public record. Not legal advice.