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

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RODAK, JR.,

Supreme Court of the United States

OCTOBER TERM, 1977

.. 77-1688

LE ROY SYMM, Appellant,

UNITED STATES OF AMERICA, et al., Appellees.

On Appeal From The United States District Court

For The Southern District Of Texas

RULE 15 APPENDICES

TO JURISDICTIONAL STATEMENT

Alpha Law Brief Con One Main Plare, No.1 am St., Houston, Tezas 77002

APPENDICES INDEX

Appendix Page

A. Notice of Appeal to the Supreme Court of the United

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B. Injunction and Final Judgment ................... B1-BS

C. Memorandum Opinion; United States v. State of Texas,

ee Cee ED neccdtn dcccecaccicsicoss C1-C43

D. Order of Summary Reversal by Sth Cir. ........... D1

Final Judgment (Reversed and Remanded by Sth

DED Sacdeuswennanubesse edscunedeaseedssocséose E1-E2

F. Memorandum Opinion; United States v. State of Texas,

GED Fe, GD CIGRGD once ccccccccccccccsccess F1-F22

G. Memorandum and Order; United States v. State of

Texas, 422 F.Supp. 917 (1976) ...........eeeee- G1-G22

H. Twenty-Sixth Amendment to the United States Con-

GEE dbvdadbasadenddsudubeseecdsnacecéosees Hl

Be i Sy BD noe nccenccndcccsccececs Il

J. Texas Election Code, Article 1.03 .................. Ji-J2

K. Texas Election Code, Article 5.01 ................. Kl

L. Texas Election Code, Article 5.02 .................. Ll

M. Texas Election Code, Article 5.08 ................. MI1-M3

N. Texas Election Code, Article 5.09a ..............4.. Nl

O. Texas Election Code, Article 5.10a ................. Ol

P. Texas Election Code, Article 5.17a ................. P1-P2

Q. Texas Election Code, Article 5.18a ..............4.. Q1-Q5

R. Voter Registration Application Promulgated by Secre-

GP GE ED GE TD cc cccwcccessccccccocsesces Rl

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 76-H-1681

UNITED STATES OF AMERICA,

Plaintiff,

STATE OF TEXAS, et al.,

Defendants.

(Filed March 27, 1978)

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that Le Roy Symm, one of the De-

fendants in the above styled and numbered cause, hereby

appeals to the Supreme Court of the United States from the

Final Judgment and Injunction entered in this action on the

3rd day of March, 1978.

This appeal is taken pursuant to 28 U.S.C. § 1253 and

42 U.S.C. § 1973bb.

/s/ MICHAEL T. POWELL

Will Sears

Michael T. Powell

SEARS AND BURNS

823 Two Houston Center

Houston, Texas 77002

(713) 654-4454

Counsel for Appellant,

LE ROY SYMM.

PROOF OF SERVICE

I hereby certify that on the 24th day of March, 1978,

one copy of the attached and foregoing Notice of Appeal

was deposited in a United States Post Office or mail box,

with air mail postage prepaid, addressed to the Solicitor

General, Department of Justice, Washington D.C. 20530.

Another copy of such Notice of Appeal was this day de-

posited in a United States Post Office or mail box, with

firstclass pestage prepaid, addressed to Mr. David M.

Kendall, First Assistant Attorney General of Texas,

Supreme Court Building, P. O. Box 12548, Capitol Sta-

tion, Austin, Texas 78711, counsel of record for De-

fendants-Appellees, State of Texas, John L. Hill, Mark

White, and his successor, Steven C. Oaks. I further cer-

tify that all parties required to be served have been

served.

/s/ MICHAEL T. POWELL

Michael T. Powell

823 Two Houston Center

Houston, Texas 77002

(713) 654-4454

Counsel for Appellant,

LE ROY SYMM

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION No. 76-H-1681

(Filed March 3, 1978)

UNITED STATES OF AMERICA,

Plaintiff

STATE OF TEXAS, et al,

Defendants

INJUNCTION

For the reasons stated in the Memorandum Opinion of

February 16, 1978, the Court hereby ORDERS:

1. College students of Waller County shall be reg-

istered and allowed to vote on the same basis

and by application of the same standards and

procedures as non-students, without reference to

whether such students have dormitory addresses,

whether or not they resided in Waller County

prior to attending school, and whether or not

they plan to leave Waller County upon gradua-

tion.

2. The Court recognizes that Leroy Symm has the

right under the Texas Election Code to make a

factual determination as to whether or not each

applicant to vote is a bona fide resident of Waller

County; however, in making this factual determi-

nation, Leroy Symm shall not find that a person

is a non-resident of Waller County for any of the

following reasons:

A. That such person resides in a dormitory at

Prairie View A&M University;

B. That such person owns no property in Waller

County;

C. That such person is a student at Prairie View

University;

D. That such applicant has no employment or

promise of employment in Waller County;

E. That such applicant previously lived outside

Waller County, or may live outside Waller

County after his graduation;

F. That such person visits the home of his par-

ents, or some other place during holidays and

school vacations.

In this connection, if Leroy Symm, in the per-

formance of his duties, determines that he is to

make a finding that a person is a non-resident, or

not a bona fide resident of Waller County, such

determination shall be made on the basis of tan-

gible evidence, consisting of facts or factors other

than the six factors listed above. In addition, in

the event Leroy Symm makes a determination that

any person who claims to be a resident of Waller

County, and who has a Prairie View University

address, is not a bona fide resident of Waller

County, Mr. Symm shall make a written record

of the precise, exact tangible evidence upon which

he relied in making his determination of non-resi-

dency. All records of the type described in the

previous sentence shall be kept in legible form

and in a single file in the Waller County Registrar’s

office where such records can be inspected by the

plaintiff in this cause or any other person having

a legitimate interest in the examination of such

records. Such records shall be maintained for a

period of five (5) years after originally made.

No additional inquiry or information shall be re-

quired solely because the application form promul-

gated by the Secretary of State of Texas contains

different permanent and mailing addresses or

states that the applicant is registered in another

Texas county.

. Students of Waller County shall not be subjected

to the presumption contained in Sec. 5.08(k)

of the Texas Election Code, or to any other

presumption with regard to their voting resi-

dence.

. The Tax Assessor, Leroy Symm, shall immedi-

ately cease the utilization of the residence stand-

ard for students which has been implemented

by means of a questionnaire, shall terminate the

use of the questionnaire, and shall henceforth

contained in the state-approved registration form,

as is done elsewhere in Texas, unless Leroy

Symm has tangible, recordable evidence (con-

sistent with Paragraph 2 above of this injunctive

decree) that such applicant is not a bona fide

resident of Waller County. Defendant is en-

joined from subjecting Prairie View students to

any particular or discriminatory procedure not

applied to non-students on a regular basis, such

as for example, causing students to visit his office

and submit students orally to the questioning

previously contained in the questionnaire dis-

cussed in this Court’s Memorandum Opinion.

. The defendant Tax Assessor of Waller County

shall schedule registration and other election

procedures pursuant to a time table which will

allow students who are bona fide residents of

Waller County to register and vote in the

elections scheduled for May 6, 1978, and in

subsequent elections. Adequate resources and

personnel shall be employed by the defendant

Tax Assessor, so as to avoid causing student

applicants any significant or unusual incon-

venience.

. Defendant Symm may require that all applicable

information requested on the application form

promulgated by the Secretary of State of Texas

be supplied by the applicant, and may refuse

registration unless and until all such information

is provided. In the event the application form is

incomplete and registration is denied on such

basis, defendant Symm shall promptly return

such incomplete application to the applicant with

notice of the reason registration is denied.

. The entry of this order shall not preclude the

State of Texas from altering its voter registration

standards so long as said standards are applied

on a uniform basis and do not discriminate on

the ba.is of race or age. Any such alteration

of uniform standards shall be applied in Waller

County and elsewhere without further order of

this Court.

8. No relief will be granted with respect to de-

fendants, Mark White, and his successor, Steven

C. Oaks, John L. Hill, the State of Texas, and

Waller County. It is further ORDERED, AD-

JUDGED and DECREED that Leroy Symm

recover nothing of or from Steven C. Oaks,

Secretary of State of the State of Texas, on his

cross-claim, and that the State of Texas, acting

by and through John L. Hill, its Attorney Gen-

eral, have judgment against Leroy Symm on

its cross-claim ordering that Leroy Symm obey

Rule 004.30.05.313 of the Rules of the Secretary

of State, and that he cease using the written

questionnaire with reference to the registration

of voters in Waller County.

Taxable costs of court are assessed against those

parties who have incurred such costs.

THIS IS A FINAL JUDGMENT.

ENTERED and EXECUTED at Houston, Texas, this

the 3rd day of March, 1978.

/s/ JOE INGRAHAM

Joe Ingraham

United States Circuit Judge

/s/ WOODROW SEALS

Woodrow Seals

United States District Judge

/s/ FINIS E. COWAN

Finis E. Cowan

United States District Judge

UNITED STATES OF AMERICA, Plaintiff,

STATE OF TEXAS, Mark White, Secretary of State

of Texas, John Hill, Attorney General of Texas,

Waller County, Texas, Leroy Symm, Tax Assessor-

Collector of Waller County, Texas, Defendants.

Civ. A. No. 76-H-1681.

United States District Court

S. D. Texas,

Houston Division.

Feb. 16, 1978.

United States brought suit to enjoin a Texas voting

registrar from refusing to register college dormitory resi-

dents unless they established that they intended to re-

main in the community after graduation. A Three-Judge

District Court held that the registrar’s practice violated

the Twenty-Sixth Amendment.

Injunction issued.

John P. MacCoon, Dept. of Justice, Washington, D.C.,

Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for

United States of America.

David M. Kendall, Jr., First Asst. Atty. Gen. of Texas,

Austin, Tex., for State of Texas, Mark White, and John

Hill.

Will G. Sears, Michael T. Powell, Sears & Burns,

Houston, Tex., for Waller County and Leroy Symm.

Before INGRAHAM, Circuit Judge, and SEALS and

COWAN, District Judges.

MEMORANDUM OPINION

Prior Litigation, Legislation and Administrative Action

Relating to Voter Rights of Prairie View Students

The case which controls this controversy is Whatley v.

Clark, 482 F.2d 1230 (Sth Cir. 1973) (hereinafter

“Whatley” ). That case helds that the statutory presump-

tion of non-residency contained in Article 5.08(k) of

the Texas Election Code is unconstitutional. Much of the

previous litigation relating to voting rights in Waller

County is rendered inapplicable by Whatley; however,

that prior litigation, in the interest of completeness,

should be reviewed.

The two previous cases in which the courts have grap-

pled with the problem of Prairie View A & M University

(hereinafter “Prairie View”) student voters are Wilson

v. Symm, 341 F. Supp. 8 (S.D. Tex. 1972) and Ballas

v. Symm, 351 F. Supp. 876 (S.D. Tex. 1972); 494 F.2d

1167 (Sth Cir. 1974) (herinafter “Wilson” and “Bal-

las’”’).

Wilson was an effort by five Prairie View students to

compel Tax Assessor-Collector Symm to register them

to vote. The case was never certified as a class action

pursuant to Rule 23, Fed. R. Civ. Proc. Wilson was

decided before Whatley v. Clark, 482 F.2d 1230 (Sth

Cir. 1973), and the court’s holding in Wilson is predi-

cated upon the court’s conclusion (later proved incor-

rect by Whatley) that Article 5.08(k) was constitutional.

The court held that the function of the challenged ques-

tionnaire was to provide student applicants a means by

which to overcome a statutory presumption of non-resi-

dency. Since Wilson v. Symm was predicated upon an

incorrect assumption concerning the constitutionality of

Article 5.08(k), it now has limited authoritative force.

Wilson was decided in the spring of 1972. In the fall

of that same year, the Honorable James Noel decided the

case of Ballas v. Symm, 351 F. Supp. 876 (D.C. Tex.

1972). The trial court decision in Ballas, like the decision

in Wilson, was decided before the appellate decision in

Whatley, and was similarly predicated upon an assump-

tion that the statutory presumption of 5.08(k) was con-

stitutional.

Ballas, a white student at Prairie View, complained of

Symm’s practice of requiring students to complete the

questionnaire attached to this opinion as Exhibit A [Ap-

pendix]. The Ballas case was never certified as a class

action pursuant to Rule 23. The court specifically de-

clined (351 F. Supp. at 880) to certify the case as a

class action.

The trial court’s opinion in Ballas v. Symm, 351 F.

Supp. 876, at 877, discusses the fact that on October 2,

1972, the United States District Court for the Eastern

District of Texas (Judge Wayne Justice) decided

Whatley, holding at the trial court level that the statutory

presumption contained in Article 5.08(k) was uncon-

stitutional. The opinion also discusses the fact that on

October 3, 1972, the Chief Election Officer of the State

of Texas, Secretary of State, Robert Bullock, issued a

bulletin to all voting registrars, advising that:

“No county registrar may require any affidavits

or questionnaire in addition to the information re-

quired on the application for a voter registration

certificate.”

The trial court in Ballas held that this bulletin and Bul-

lock’s acceptance of Judge Justice’s decision in Whailey

was:

“Utterly lacking in candor or credibility; legally

incorrect; misleading; in excess of his statutory au-

thority, and irrelevant.” 351 F. Supp. at 888.

Subsequent to Judge Noel’s decision in Ballas in No-

vember of 1972, the Fifth Circuit decided Whatley in

August of 1973, holding that Bullock’s legal position, as

stated in his memorandum, and Judge Justice’s trial

decision in Whatley were in fact legally correct and that

Article 5.08(k) was unconstitutional.

In 1975, in an action which the State of Texas here

contends was taken in response to Judge Noel’s criticism

of Secretary of State Bullock in Ballas, the 64th Legisla-

ture of the State of Texas passed a statute, amending the

Texas Election Code. The Texas Election Code, as modi-

fied by the 1975 amendments reads:

“Art. 1.03. Secretary of State as Chief Election

Officer.

“Subdivision 1. The Secretary of State shall be

the chief election officer of this state, and it shall be

his responsibility to obtain and maintain uniformity

in the application, operation and interpretation of

the election laws. In carrying out this responsibility,

he shall cause to be prepared and distributed to each

. county tax assessor-collector, . . . detailed

and comprehensive written directives and instruc-

tions relating to and based upon the election laws

as they apply to elections, registration of electors,

and voting procedures which by law are under the

direction and control of each such respective officer.

Such directives and instructions shall include sample

forms of ballots, papers, documents, records and

other materials ana supplies required by such elec-

tion laws. He shall assist and aavise all election of-

ficers of the state with regard to the application, op-

eration and interpretation of the election laws.

“Subdivision 2. At least 30 days before each gen-

eral election, the Secretary of State shall prescribe

forms of all blanks necessary under this Code, and

shall furnish same to each county clerk.

*” * *

“Art. 5.02. Qualification and Requirements for

Voting.

*+ s+ *

(b) All citizens of this state who are otherwise

qualified by law to vote at any election of this state

or any district, county, municipality, or other polliti-

cal subdivision shall be entitled and allowed to vote

at all such elections. The Secretary of State shall,

by directive, implement the policies stated herein

throughout the elective procedures and policies by

or under authority of this state. Enforcement of any

directive of the Secretary of State pursuant to this

section may be by injunction obtained by the At-

torney General.”

Although there is no way to determine the legislative

history of an Act of the Texas Legislature with certainty,

the State of Texas contends (and it seems reasonable to

assume) that these statutory changes were enacted in

reaction to Judge Noel’s statements critical of Bullock in

Ballas.

The Fifth Circuit Court of Appeals in Ballas v. Symm,

494 F.2d 1167 (Sth Cir. 1974) affirmed the trial court

decision, emphasizing, however, two significant facts:

1. The use of the form itself did not violate the fed-

eral Constitution because the determination of

whether or not an applicant was a voter was not

made on the basis of the form alone, but on the

contrary, was made after a hearing; and

2. There was no proof that the questionnaire itself

was used as a device to prevent legal residents from

voting.

The Fifth Circuit opinion by Circuit Judge Roney is

drawn with precision and decides a very narrow issue, as

stated at 494 F.2d at 1168:

“The precise issue which this suit seeks to determine

is whether use of a questionnaire to assist in residence

determination by a voter registrar is a violation of

the 14th Amendment Equal Protection Clause, and

the amended 1964 Voting Rights Act because only

some voter applicants, but not all, were required to

complete the questionnaire.”

The Fifth Circuit, as did the trial court, emphasized

that the case was not a class action and not properly

regarded as a class action. (See 494 F.2d at 1169).

The case at bar was filed on October 14, 1976 and on

March 15, 1977, this court, in an unpublished Memo-

randum Opinion, overruled defendant Symm’s motion

for summary judgment. Symm’s motion for summary

judgment was predicated upon a theory that the Fifth

Circuit opinion in Ballas was res judicata and barred the

United States from relitigating the controversy relating

to Waller County voting rights. The court held that res

judicata was not applicable because of lack of identity

of parties and because the cause of action asserted by the

Government herein differs from that asserted by Ballas.

In reaching its conclusion, the court relied upon South-

west Airlines Co. v. Texas International Airlines, Inc.,

546 F.2d 84, 95 (Sth Cir. 1977); Black Voters v. Mc-

Donough, 421 F. Supp. 165 (D.C. Mass. 1976). This

court in its opinion of March 15, 1977, however, decided

that the doctrine of abstention was applicable. This

court’s decision to abstain was reversed 15 days later in

a one paragraph opinion. Thereafter, the factual record

which is discussed below was developed in a series of

hearings.

Pleadings and Assertions of the Present Parties

The complaint of the United States alleges that de-

fendant Symm, by virtue of certain practices, including

the use of a unique form, has abridged the right of Prairie

View dormitory residents to vote in violation of their

rights under the 14th, 15th and 26th Amendments to

the Constitution of the United States. In oral argument,

the United States has consistently contended that its cause

of action is considerably broader that the cause asserted

in Ballas, supra, in that the United States does not object

to the use of the Symm form per se, but contends that

the form is merely a part of a more pervasive pattern of

conduct which has the effect and the intent of depriving

dormitory students at Prarie View of their rights under

the 14th, 15th and 26th Amendments.

The claims of the United States are asserted against

Symm, the County Commissioners of Waller County, the

State of Texas, Mark White, Secretary of State of the

State of Texas, and John Hill, Attorney General of the

State of Texas.

Hill and White answer by alleging that they have done

everything within their power to guarantee the dormitory

students of Prairie View their rights under the 14th,

15th and 26th Amendments and also assert that the use

of the Symm questionnaire has had the practical effect of

discouraging applicants for registration from completing

the registration process. John Hill also asserts a cross-

claim against Leroy Symm, stating that on September 1,

1977, the Secretary of State adopted Emergency Rule

004.30.05.313 prohibiting the use of questionnaires of

the type employed by Symm. John Hill asserts that under

the Texas Election Code, the Secretary of State had au-

thority to issue this Emergency Rule, and prays that this

court enjoin Symm from continuing to use the question-

naire contrary to the directions of the Emergency Rule

adopted by the Secretary of State.

In answer to the cross claims asserted by White and

Hill, Symm has filed a cross-claim against White assert-

ing that White’s Emergency Rule 004.30.05.313 is con-

trary to the laws of the State of Texas and in excess of

the legal authority of the Secretary of State, and request-

ing this court to enter a Declaratory Judgment finding

that White had no authority to issue (1) Emergency Rule

004.30.05.313 and (2) a letter of September 1, 1977 to

Mr. Symm prohibiting Symm from continuing to use any

voter registration procedure which required an applicant

to provide any written information not required by Art-

icle 5.13b, subdivision 1, of the Texas Election Code.

In oral argument, counsel for Symm requested the

court to invoke its pendent or ancillary jurisdiction for

the purpose of entering a Declaratory Judgment to the

effect that White has no authority to issue the Emergency

Rule and the letter in controversy.

EVIDENCE IN PRESENT CASE

Testimony of Prairie View Students and Administrators

Sidney Hicks is a full time student at Prairie View. He

resides in the dormitory and is active in student affairs.

Before commencing college, he lived in Navarro County,

Texas.

Students at Prairie View commenced their efforts to

vote in Waller County in 1966. The most recent drive

to encourage students to vote was in March of 1976. In

March of 1976, Mark White, the Secretary of State, and

a number of his deputies visited the campus to assist

students to register and vote. Hicks believes that White’s

staff was extremely helpful, but he cannot testify that

White did everything possible to aid the students in their

desire to register and vote in Waller County.

During the drive to register students in the spring of

1976, Hicks, accompanied by others, visited Mr. Symm

to discuss with him the desire of many Prairie View stu-

dents to register and vote in Waller County, and their

belief that they were legally entitled to do so. Symm ex-

plained to Hicks and his companions that allowing stu-

dents to register and vote would not be fair to permanent

residents of Waller County who had devoted their entire

lives to the county and who would be present in the

county long after the students were gone. Symm fur-

ther explained that as he viewed the matter, students

and military personnel fell into the same category and

neither were entitled to be routinely registered on the

same basis or by the same procedures as “permanent”

residents.

The Town of Prairie View is located within Precinct 12

of Waller County. In the 1976 slection, Hicks became a

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candidate for city councilman for the town of Prairie View

and was elected, even though the bulk of the students at

Prairie View University were not registered voters. He

attributed his victory at the polls to the fact that the reg-

istered voters in Prairie View approved of his effcrts to

assist and encourage qualified students to register and

vote.

In an effort to register and vote in Waller County,

Hicks filled out the Symm questionnaire. He stated in the

questionnaire that he was a resident of Prairie View, lived

in the dormitories, was a full time student, returned to his

parents’ home in Nacogdoches on holidays and in the

summers, spent approximately 75% of his time at Prairie

View, and regarded Prairie View as his residence while

he was pursuing his studies. He was not allowed to reg-

ister in Waller County and in the 1976 election was able

to vote only by driving approximately 300 miles to his

parents’ home in Navarro County.

Hicks, throughout, has been aware that he and other

students may have a legal right to request federal regis-

trars to come to Waller County to assist in the registra-

tion of students. He states that he and other students have

refrained from pursuing this remedy because they did not

wish to create hard feelings, hoped to create a feeling of

amity in Waller County, and to make Waller County the

best county in the state.

Hicks testified without equivocation that dormitory

students at Prairie View were simply not allowed to

Hicks testified that during the voter registration drive

of 1976, he, through the student organization in which he

was active, kept detailed records concerning the number

Cll

of applications to vote by students. He testified that over

1,000 application cards were forwarded to Mr. Symm. In

one of his conferences with Hicks, Symm told Hicks that

only 700 of these were received. Only 27 students were

registered to vote, and none of those 27 were dormitory

students. All of the 27 were either Waller County natives

or were married students.

Three other Prairie View students testified. All testified

that they were dormitory residents, full time students, and

had no definite intention concerning returning to the

counties of their parents’ homes when they completed

their studies. All testified that they had filled out Symm’s

form but had not been allowed to register and vote. One

of them had been allowed to register and vote, after re-

fusal by Mr. Symm, in the county of his parents’ residence.

One other had not been successful in registering in the

county of his parents’ residence, and was not able to vote

in the 1976 presidential election.

Mr. C. A. Thomas, the Registrar of Prairie View A & M

University, testified that undergraduates from outside

Waller County were required to live in the dormitory

when dormitory space was available; that normally the

dormitories had space for all students; that Prairie View

freshmen were normally in the 17-19 age bracket; that all

dormitory students were black; and that as of October

1976 there was a total of 2,918 students living in the

dormitories.

Testimony of University of Texas Students

and Registrars from other Counties

Students from the University of Texas testified that in

Travis County students were routinely registered like

other voters, simply by filling out the state prescribed

C12

registration form and furnishing the information there,

and were not subjected to further or special inquiry.

The United States introduced in evidence the testimony

of 70 registrars of voters, located in virtually every Texas

county containing an institution of higher learning. None

of the registrars of the 70 other Texas counties containing

institutions of higher learning follows Mr. Symm’s pro-

cedure; none applies the presumption contained in Article

5.08(k) and declared unconstitutional in Whatley; and

none subjects students to any more rigorous scrutiny than

other applicants for voting. All feel that they are applying

the law of the state properly. A!’ state that they would not

a resident of the county, but that they do not have the

personnel or manpower to conduct detailed inquiries with

reference to each applicant.

Testimony of Representatives from Office

of Secretary of State

Mark White, Secretary of State of the State of Texas,

and Leroy Beck, a deputy Secretary of State, testified

that during the period from February, 1976 until October,

1976, Mr. White or his deputies made a total of ten

visits to the Prairie View campus for the purpose of edu-

cating students concerning their rights and attempting to

discuss the Waller County situation with Mr. Symm.

White testified that he visited Symm and explained to

him that Article 5.08(k) had been declared unconstitu-

tional in Whatley. White also testified that he and his

deputies visited Prairie View campus on numerous occa-

sions, attempting to explain the law to students, and at-

tempting to assist students to register in whatever county

the student felt was in fact his residence.

C13

White testified that he told students that they could not

automatically be registered where they were studenis but

were required to establish residence in the place where

they wished to vote.

White also testified that in September, 1977, he issued

the following directive:

Suffrage

Use of Questionnaires or other

Written Information in

Qualifying Registrants

004.30.05.313

The Secretary of State has adopted Emergency Rule

004.30.05.313. The rule states that no questionnaire or

additional information may be required of an applicant

who has properly completed a voter registration applica-

tion. The rule is necessary to meet administrative prob-

lems concerning voter registration for the November 8,

1977 Constitutional Amendment Election, and for this

reason is adopted as an emergency rule.

This emergency rule is adopted under the authority

of Articles 1.03, 5.02(b), and 513a, Vernon’s Texas

Election Code.

.313. No questionnaire or additional written informa-

tion shall be required prior to the registration of any appli-

cant for voter registration who has properly completed

a voter registration form which has been prescribed by the

Secretary of State.

Issued at Austin, Texas, on September 1, 1977.

/s/ MARK WHITE

Secretary of State

C14

Testimony of Leroy Symm

Mr. Symm was first elected Tax Assessor-Collector of

Waller County in 1956 and has served continuously since

that time.

Commencing about 1966, there were efforts by persons

whom Mr. Symm regards to be non-residents to vote, and

at that time he instituted the procedure of having each

person whose good faith residence he questioned, com-

plete an affidavit. There was some objection to these

affidavits, and consequently in about 1970, he ceased

the use of the affidavit and instead started to use the

“Questionnaire,” a copy of which is attached to this opin-

ion as Exhibit A (hereinafter the “questionnaire” ).

One of the reasons for Symm’s use of the questionnaire

is his belief that Article 5.08(k) of the Election Code is

applicable. Symm stated that he had read in the news-

paper that an opinion from some court declared Article

5.08(k) unconstitutional, but that he did not change his

practices after receiving this information and that he, him-

self, in making residency determinations, still applies the

presumption set forth in Article 5.08(k) and instructs his

deputies to do the same. His testimony in this connec-

tion is confirmed by the testimony of his deputies, who

state that they also, by virtue of instructions from Symm,

apply the presumption decreed in Article 5.08(k).

Symm states that he has received Mark White’s

“Emergency Order” and has discussed this order with

White. In his discussions with White, Symm questioned

White’s authority to issue the emergency directive. Mr.

Symm states that he will continue to use the form until

this court determines whethcr White has .he authority

to issue his directive, and that he will comply with the

C15

order of this court in connection with the determination

of White’s authority.

Mr. Symm, in his deposition taken on January 16,

1978, testified definitely, without equivocation, in re-

sponse to numerous questions, that he still applies the

presumption contained in Article 5.08(k). At the hear-

ing held before this court on January 31, 1978, he

forthrightly and candidly repeated this testimony.

Symm’s basic procedure is as follows: A very large

number of persons who apply to register to vote are

personally known to Symm or his deputies as being resi-

dents of Waller County. These persons are routinely

registered, upon filing out the state form, without further

inquiry. A second category of persons exists who are

also registered routinely and without further delay. This

second category consists of persons who are not person-

ally known to Symm or his deputies as residents of

Waller County, but who are listed on the tax rolls as

owning property in Waller County and whose address

on the tax rolls shows an address in Waller County. A

third category consists of those who did not fit within either

of the above categories, and those persons are issued the

questionnaire which is attached to this opinion as Ex-

hibit A [Appendix].

Upon examining the questionnaire, Symm either regis-

ters the persons as voters, or gives them notice that a

hearing has been set to hear evidence and make a de-

termination as to their residency. Experience demon-

strates that a very high percentage of the persons for

whom hearings are set do not appear, and that a majority

of the persons who appear for hearings are not registered.

C16

With reference to the third category (i.e., non-property

owners not known to Symm or his deputies), Mr. Symm,

in making his residency determination, does not rely

upon a sing!= factor, but instead, considers the entire

factual background. In this connection he considers the

marital status of the applicant, the question of whether

he is employed in Waller County, the question of whether

he has family in the county, the question of whether he is

a Waller County native, and the question of whether or

not the place where he lives is a permanent address, as

distinguished from a temporary residence. He states that

generally students are not regarded by him as residents

unless they do something to qualify as permanent resi-

dents, such as marvying and living with their spouse or

obtaining a promise of a job in Waller County when they

complete school. He does not regard a dormitory room as

a permanent residence, and regards a permanent resi-

dence, only as a place with a refrigerator, stove and . urni-

ture.

Mr. Symm has no information concerning procedures

followed in other counties and no interest in those pro-

cedures.

With reference to the voter registration drive in 1976,

Mr. Symm received 898 applications for voter registration

which bore a permanent mailing address at Prairie View,

Texas. Of these 898 applications, 79 were registered as

voters on the basis of Symm’s personal acquaintance

and knowledge that the applicants were good faith resi-

dents of Waller County. Thirteen of these 898 were

registered on the basis of examination of ad valorem

tax rolls. 101 applicants were challenged and hearings

set. Of the 898, 545 were requested to complete the

questionnaire by certified or registered mail. 209 of

C17

the Symm mailings (which requested the addressees to fill

out his questionnaire) were returned “refused” or “un-

claimed.” 295 of the applicants received the question-

naire but did not return it to Symm’s office. 78 of the

applicants completed the questionnaire and 25 of these

were registered as voters without a hearing on the basis

of the total contents of the questionnaire. 238 notices of

hearing were sent wherein the applicants did not appear

for the hearing. Thirty applicants who were sent notices

of hearing appeared, and ten were registered as good

faith voters after a hearing.

In suiamary, of 545 potential voters who were sent

the questionnaire, a total of 35 were registered as voters.

Mr. Symm believes that students and servicemen fall

within the same category, and that neither are residents,

as a general rule, of the place where they are stationed

or attending school, and in making this determination

of residency, he applies this assumption and the Article

5.08(k) presumption.

Symm testifies that a number of the questions on his

questionnaire are not really very significant in enabling

him to make a determination concerning residence. For

example, the length of time a student has been at Prairie

View, the length of time he has resided in Texas, and the

question of whether or not he is employed, are of no

particular significance; however, the question concerning

property ownership is very significant, as is the question

concerning whether the student has been promised a

job in Waller County or intends to reside in Waller

County “indefinitely.” Symm agrees that “indefinite” is an

indefinite word, but it is inferable from his testimony

that he attempts to make a determination as to whether

C18

or not a student has an intent and a reasonable ex-

pectation of remaining permanently in Waller County

upon completion of his studies. In this connection, Symm

emphasizes that very few students continue to reside in

Waller County upon graduation because of limited job

opportunities and supports this view by reference to

alumni statistics revealing that only about 2% of Prairie

View alumni reside in Waller County.

The question concerning whether or not an applicant

has an intent to remain “indefinitely” in Waller County

is a question which he asks only of those who are re-

quired to fill out the questionnaire. He does not ask

persons with jobs in Waller county whether they intend

to remain in the county “indefinitely.”

Students at Prairie View whose parents live in Waller

County are treated differently from other students. These

Prairie View students, the children of Waller County

natives, are registered without question. In addition,

married students, even if they reside in the dorms with

their spouses, would be routinely registered, but not

single students.

Tests of Symm’s Perception of Non-Discriminatory

Use of Questionnaire

Both the State of Texas and the Commissioners of

Waller County agree that Mr. Symm sincerely perceives

that his use of the questionnaire is non-discriminatory

and that it is issued only to persons whom Symm does

not know personally or who do not appear as property

owners on the tax rolls of Waller County. This perceived

assumption was accepted by both trial and appellate

courts as having been established conclusively on the

C19

basis of the record developed in Ballas. The record in

Ballas was obviously less comprehensive than the record

developed in the case at bar.

In an effort to test the accuracy of Symm’s perception,

the United States, plaintiff herein, has subjected this

perception to the test described below.

In answers to interrogatories served upon him pursuant

to Rule 33, Fed.R.Civ.Proc., Mr. Symm attached the

voter registration forms of all Waller County voters who

were registered on the basis of his personal knowledge.

After these interrogatories were answered, investigators

for the United States interviewed every fifth person on

the list of those persons who had been registered because

of Symm’s personal knowledge. A large percentage of

these registrants did not themselves know Mr. Symm

or know how Mr. Symm could have knowledge of their

residence.

Thereafter Symm and his deputies analyzed the list of

those voters who denied that they knew Mr. Symm, and

identified each of those persons whom Symm or his

deputies knew. This list appears in this record as Defend-

ant’s Exh. 10. Mr. Symm and his deputies were not able

to state, with reference to a large number of the persons

listed in Defendant’s Exh. 10, that they had personal

knowledge concerning the residence of such individuals.

The United States of America contends that this pro-

cedure and the results thereof prove conclusively that

Symm’s perception as to the non-discriminatory use of

his questionnaire is inaccurate.

Detailed examination of the identity of persons to

whom questionnaires are sent also reveals that it appears

C20

that only Prairie View students or persons with addresses

on the campus have been issued the Symm questionnaire

and that others not known to Symm are not required to

complete the questionnaire. This fact, among others, dis-

tinguishes the factual patterns assumed by both trial and

appellate courts in Ballas, supra.

Evidence Relating to County Commissioners

and Analysis of Same

There is no evidence that Waller County Commission-

ers have in any degree participated in Symm’s determi-

nations concerning residency of voters, or the selection

of his procedures.

The parties have, however, placed before the court

detailed correspondence from the County Commissioners

to the Department of Justice concerning the Attorney

General’s objection under Section 5 of the Voting Rights

Act of 1976 to a proposed redistricting. In a letter dated

August 24, 1976, counsel for the County Commissioners

made the following statement:

“Pursuant to the provisions of 28 C.F.R. § 51.23

(1975), the Commissioners Court of Waller County

presents this request for reconsideration of the At-

torney General’s objection to the 1975 redistricting

of Waller County. That objection a to have

been premised upon the failure of the Commissioners

Court to include approximately 2,000 of the students

at Prairie View A & M University (‘Prairie View’)

in the population base for the rea ionment of

Waller County. These excluded ts have not

qualified to vote in Waller County and are probably

ineligible to qualify.”

C21

This record does not reveal where the figure of “2,000

students” originated. The testimony of C. A. Thomas,

the Registrar of Prairie View, is that as of October 21,

1976, there were 2,918 dormitory students residing at

Prairie View. The testimony of Mr. Hicks is that approxi-

mately 1,000 Prairie View students attempted to register

and vote during the voter registration drive in 1976. The

origin of the “2,000 students” figure is obscure.

In view of the undisputed fact that for many years

Mr. Symm has applied the presumption set forth in

Article 5.08(k), it is impossible to determine from this

record, or from the facts as they must exist at the

present time, how many duly qualified registered voters

do exist at Prairie View University. All that can be said

with certainty is that there are probably more than 38

and less than 2,918. Until Mr. Symm and the Commis-

sioners have gained some experience in registering stu-

dents applying proper procedures, it is impossible to de-

termine how many of the dormitory students at Prairie

View are properly registered voters in Waller County.

The case of Eristus Sams v. Commissioners of Waller

County, Civil Action No. 75-H-965, is a pending case

challenging the districting methods used in Waller

County. Questions relating to the districting or redistrict-

ing of Waller County must be resolved in that case.

AUTHORITIES

Authorities Relating to 26th Amendment Allegations

[1] On June 22, 1970, Congress passed the Voting

Rights Act Amendments of 1970, containing in Title III,

the following provisions:

C22

TITLE III—REDUCING VOTING AGE TO

EIGHTEEN IN FEDERAL, STATE AND

LOCAL. ELECTIONS

Declaration and Findings

Sec. 301 (a) The Congress finds and declares

that the imposition and application of the require-

ment that a citizen be twenty-one years of age as a

precondition to voting in any primary or in any

election—

(1) denies and abridges the inherent constitu-

tional rights of citizens eighteen years of age but not

yet twenty-one years of age to vote—a particularly

unfair treatment of such citizens in view of the

national defense responsibilities imposed upon such

citizens;

(2) has the effect of denying to citizens eighteen

years of age but not yet twenty-one years of age the

due process and equal protection of the laws that

are guaranteed to them under the Fourteenth

Amendment of the Constitution; and

(3) does not bear a reasonable relationship to

any compelling State interest.

(b) In order to secure the constitutional rights

set forth in subsection (a), the Congress declares

that it is necessary to prohibit the denial of the right

to vote to citizens of the United States eighteen

years of age or over.

Prohibition

Sec. 302 Except as required by the Constitution,

no citizen of the United States who is otherwise

qualified to vote in any State or political subdivision

in any primary or in any election shall be denied the

right to vote in any such primary or election on

C23

account of age if such citizen is eighteen years of

age or older.

Enforcement

Sec. 303 (a)(1) In the exercise of the powers of

Congress under the necessary and proper clause of

section 8, article 1 of the Constitution, and section

5 of the Fourteenth Amendment of the Constitution,

the Attorney General is authorized and directed to

institute in the names of the United States such

actions against States or political subdivisions, in-

cluding actions for injunctive relief, as he may de-

termine to be necessary to implement the purpose of

this title.

(2) The district courts of the United States shall

have jurisdiction instituted pursuant to this title, and

shall be heard and determined by a court of three

judges in accordance with the provisions of section

2284 of Title 28, of the United States Code, and

any appeal shall lie to the Supreme Court. It shall

be the duty of the judges designated to hear the

case to assign the case for hearing and determination

thereof, and to cause the case to be in every way

expedited.

(b) Whoever shall deny or attempt to deny any

person of any right secured by this title shall be

fined not more than $5,000 or imprisoned not more

than five years, or both.

Definition

Sec. 304 As used in this title, the term “State”

includes the District of Columbia.

The statute quoted above was limited to federal elec-

tions by Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260,

27 L.Ed.2d 272 (1970), but almost immediately Con-

C24

gress proposed and three-fourths of the states adopted the

26th Amendment which provides that the right of citizens

who are over 18 to vote shall not be “denied or abridged”

by any state “on account of age.”

Senate Report No. 26, 92nd Cong., Ist Sess. (1971),

with reference to the 26th Amendment noted that:

“. . . forcing young voters to undertake special

burdens—obtaining absentee ballots, or traveling to

one centralized location in each city, for example—

in order to exercise their right to vote might well

serve to dissuade them from participating in the

election. This result and the election p ures that

create it, are at least inconsistent with the purpose

of the Voting Rights Act, which sought to encourage

greater political participation on the part of the

young; such segregation might even amount to a

denial of their 14th Amendment right to equal pro-

tection of the laws in the exercise of the franchise.”

In 1976, Congress amended the language of Title III

of the Voting Rights Act in § 1973bb to specifically set

out that this portion of the Act was “to implement” the

26th Amendment.

Litigation was necessary to enforce the promises of

Title III of the Voting Rights Act Amendment of 1970,

and the 26th Amendment. One such case was Whatley.

Whatley does not stand alone, but is merely one of a

number of cases reaching virtually the identical conclu-

sion and applying the same philosophy.

The first of this series of cases is Bright v. Baesler,

336 F.Supp. 527 (E.D.Ky.1971). Like Whatley, Bright

v. Baesler was a case in which officials in Lexington,

Kentucky sought to enforce a presumption that students

C25

were domiciliaries of their parents’ homes. Plaintiffs con-

tended that the official practices were violative of the

14th and 26th Amendments, as well as of 42 US.C.

§ 1971, et seq. As in the case at bar, the registrar in

Bright had required students to complete and answer a

series of questions designed to overcome a presumption

that they were domiciliaries of their parents’ homes.

The court enjoined the defendants from imposing ad-

ditional or special criteria for proof of domicile upon

University students; required the defendant to ask each

applicant the same questions regardless of occupation

and required that the questions asked reasonably relate

to proof of domicile. The court at 336 F.Supp. at 533

said:

“. . . Because voting rights involve the First

Amendment freedom of association, the State may

not impose restrictions upon that right unless there is

a compelling state interest in the imposed restriction

or classification. Williams v. Rhodes, 393 U.S. 23,

89 S.Ct. 5, 21 L.Ed.2d 24 (1968). It would seem,

therefore, that the extra burden of proof imposed

upon students in regard to proof of their domicil

may only be held constitutional if a compelling state

interest is thereby served.

“There is no dispute in this case that Kentucky

has the right to require every applicant for voter

registration to be a domiciliary of the precinct in

which he offers to vote. But may the State require,

and is there any compelling reason why it should

require, students to go to greater lengths to prove

domicil than other citizens. This court thinks not.

“There is no reason to assume, and the defendants

have offered none that would satisfy the compelling

C26

iMterest test, that a person claiming to have fulfilled

the domiciliary requirement is not to be believed if

he is a student . . . Simply put there are no salient

reasons to treat registering students differently from

other people merely because they are students.

*- * *

“Notwithstanding the fact that there may be a sig-

nificant number of students who do intend to return

to their former homes, there is an equally significant

number of students who do nut intend to return to

their former homes, and the presumption against

university domicil unfairly discriminates against

them.

* x a

“The court cannot conceive of any reason why it

should not be presumed that student applicants for

voter registration, like any other applicant, have

made their application to register in good faith. Ad-

mittedly a student may not be able to state with

certitude that he intends to permanently live in the

university community, but such a declaration is not

necessary to establish domicil.

* *

“This is not to say that the defendants may not

require each applicant to prove domicil. The de-

fendants may ask each applicant a series of questions

directed at proving domicil, but each applicant

should be asked the same questions, and the ques-

tions should reasonably relate to proof of domicil.”

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

1971) the registrar was held to be applying an incorrect

standard by requiring students to produce more per-

suasive evidence of their domicile than did other voter

applicants. The registrar required of each registrant an

C27

intent to remain in Middlebury permanently, thus pre-

cluding most students, who were unable to state with

certainty where they would live upon completing their

studies. The court said (336 F.Supp. at 1115):

“The fact that a student lives in a dormitory, is

unmarried, is supported financially by his parents

who live elsewhere, would be considered a minor in

the state in which his parents live and occasionally

visits his parents, even if all these factors occur to-

gether, is not alone sufficient to preclude domicile

in the town in which the student attends school, al-

though these factors may be considered together

with other relevant evidence. Furthermore, although

we do not imply that the Board has considered them

to be relevant, we think it important to note that

such factors as the lack of a Vermont driver’s license

or car registration are irrelevant unless the individual

has a license or registration in another state.

“Thus, the Board of Civil Authority must not re-

quire students to fill out a supplemental questionnaire

involving questions concerning their domicile unless

all applicants are required to complete the same

questionnaire. Moreover, the Board of Civil Au-

thority must use its best efforts to insure that any

questionnaire is equally relevant to all applicants

and not designed only to apply to student applicants.”

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

volved Article 5.08(m) of the Texas Election Code, which

provided for voting residency of persons under 21 years

of age on a different basis than that applied to persons 21

years of age or over. Ownby, supra, is in effect an agreed

judgment in which the State of Texas agreed with the

C28

plaintiffs that Article 5.08(m) violated the plaintiff's

rights under the 14th and 26th Amendments.

The litigation to make genuine the guarantees of the

26th Amendment was not limited to the federal courts. The

Supreme Court of California decided Jolicoeur v. Mihaly,

5 Cal.3d 565, 96 Cal.Rptr. 697, 488 P.2d 1 (Aug. 27,

1971) decreeing that newly enfranchised young people

in California, residing apart from their parents, should be

treated like other voters for the purpose of acquiring vot-

ing residence and should not be presumed to reside with

their parents. Voting registrars of five major counties in

California declined to register students on the basis of a

California Attorney General’s opinion concluding that for

voting purposes the residence of an unmarried minor

would normally be his parents’ home. The plaintiffs

sought from the court a decree directing the various regis-

trars to register them in accordance with the same pro-

cedures and qualifications followed with respect to adult

registrants. The Supreme Court of California granted re-

lief, reasoning that to compel students to travel to the

homes of their parents, or to compel them to vote absen-

tee burdened their right to vote, and thus abridged that

right in contravention of the 26th Amendment.

The California Supreme Court enjoined the defendants

from treating students in a manner different from other

voter registrants primarily on the basis of a detailed

and comprehensive review of the legislative history of

Title III of the Voting Rights Act of 1970 and the 26th

Amendment. The California Supreme Court said (96

Cal. Rptr. at 703, 488 P.2d at 7):

“America’s youth entreated, pleaded for, de-

-manded a voice in the governance of this nation. On

C29

campuses by the hundreds, at Lincoln’s Monument

by the hundreds of thousands, they voiced their frus-

tration at their electoral impotence and their love of

a country which they believed to be abandoning its

ideals. Many more worked quietly and effectively

within a system that gave them scant recognition.

And in the land of Vietnam they lie as proof that

death accords youth no protected status. Their strug-

gle for recognition divided a nation against itself.

Congress and more than three-fourths of the states

have now determined in their wisdom that youth

‘shall have a new birth of freedom’—the franchise.

Rights won at the cost of so much individual and

societal suffering may not and shall not be curtailed

on the basis of hoary fictions that these men and

women are children tied to residential apron strings.

Respondents’ refusal to treat petitioners as adults for

voting purposes violated the letter and spirit of the

Twenty-Sixth Amendment.”

The identical result was reached by the Supreme Court

of New Jersey in Worden v. Mercer County Board of Elec-

tions, 61 N.J. 325, 294 A.2d 233 (1972). That court

distinguished any earlier, inconsistent decisions by point-

ing out that earlier decisions were made “in relatively

immobile areas when it was generally assumed that the

college student would lead a semi-cloistered life with

little or no interest in non-college community affairs and

with the intent of returning on graduation to his parents’

home and way of living. Such assumption, of course, has

no current validity.”

Well reasoned opinions by courts in Pennsylvania,

Mississippi and Michigan have reached identical con-

clusions. See Sloane v. Smith, 351 F.Supp. 1299 (M.D.

Pa.1972); Latham v. Chandler, 406 F.Supp. 754 (N.D.

C30

Miss.1976); Frazier v. Callicutt, 383 F.Supp. 15 (N.D.

Miss. 1974); Wilkins v. Bentley, 385 Mich. 670, 189

N.W.2d 423 (1971).

Ballas must be construed in the light of the foregoing

authorities and also in the light of the very careful,

limiting language of Judge Roney in Ballas. Ballas merely

holds that on the record in that case, in which there was

no proof of either racial discrimination or discrimination

based on age, the use of the Symm form was constitu-

tionally permissible so long as it did not abridge 26th

Amendment rights to provide, by itself, the basis for a

refusal of registration. Judge Roney carefully pointed out

in Ballas that:

“.. . The alleged harm is not in the denial of

voter registration but in being required to answer

the questionnaire . . .

the cumulative effect of the answers is to support

or fail to support the applicant’s assertion of resi-

dency. It appears to be nothing more . . . There

is no proof that the questionnaire was used as a

device to prevent legal residents from voting.”

In the case at bar, plaintiff does not challenge the

Symm questionnaire per se, but alleges that in fact Mr.

Symm has improperly denied voter registration to nu-

merous students at Prairie View and that the Symm ques-

tionnaire was an integral step in the procedure involved in

such denial. In addition, there is here both allegation and

proof that the questionnaire was used as a part of a pattern

of conduct in which Symm denied Prairie View students the

right to vote or abridged such right by the application of a

presumption declared unconstitutional in Whatley and in

the other cases discussed above.

C31

Texas Authorities

The evidence in this case establishes that Symm is the

only registrar in the State of Texas who uses the ques-

tionnaire of the type here in controversy. Seventy coun-

ties in the state have institutions of higher learning, and

Symm is the only county registrar who employs a ques-

tionnaire of the type here under attack. Symm contends

this fact is not only immaterial, but that it establishes

that he is the only registrar in the state who complies with

the requirements of law and who conscientiously makes

a factual determination as to the residence of students.

Symm’s position is inconsistent both with the 26th

Amendment cases discussed above, and also with the

relevant Texas cases.

The only Supreme Court of Texas case relating to

residency of students is Mills v. Bartlett, 377 S.W.2d 636

(Tex.Sup.Ct.1964). While the facts of Mills, supra, are

not similar to any of the facts relating to any Prairie View

student, the language of the Supreme Court is significant

(377 S.W.2d at 637):

. . . 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 and determined. There is no specific length of

time for the bodily presence to continue. . .”

It is appareng from Mills v. Bartlett that there is no

requirement that a student, in order to establish that

he is a resident of the place where he wishes to vote,

establish that he intends to remain there permanently

or for any particular period of time.

C32

A review of the applicable opinions of the Texas

courts of civil appeals reveals that the courts have not

applied the same standards and the same reasoning as

has Mr. Symm in dealing with students and other persons

whose life style is similar to that of students. For example,

in Cavallin v. Ivey, 359 S.W.2d 910 (Tex. Civ. App.—

El Paso 1962), the court dealt with a problem created

by two Mexican-American citizens of the United States

whose wives and families lived in Mexico. The Mexican-

American citizens visited their families in Mexico on

Sundays, and worked during the week in Srewster County.

Although Article 5.08(f) of the Texas Election Code

provides that a married man, not permanently separated

from his wife, shall med to have a residence where

his family lives, the Court of Civil Appeals held that a

literal application of that language would disenfranchise

these Mexican-American citizens and thus held them quali-

fied to vote in Brewster County even though their families

resided in Mexico, and even though the men visited

Mexico each weekend and simply worked in Brewster

County.

In McBeth v. Streib, 96 S.W.2d 992 (Tex. Civ. App.

—San Antonio 1936) the voters in question were mem-

bers of the Civilian Conservation Corps, living in a CCC

camp. In finding the young men living in the CCC camp

were qualified voters in the county in which they were

physically present, the San Antonio Court of Civil Ap-

peals, long before Carrington v: Rash, 380 U.S. 89, 85

S.Ct. 775, 13 L.Ed.2d 675, said (96 S.W.2d at 995):

“The presumption, of course, obtains here, as

arg Adee. ys that every man has the right

and privilege of fixing his residence according to

C33

his own desires. This applies to single men as well

as married men, though it is a matter of common

knowledge that single men do change their place

of residence more frequently than married men. That

fact, however, does not change or take away their

definite legal rights, if, as, and when they comply

with the law and acquire same under a change of

residence or otherwise. It is equally true that a man

is presumed, ordinarily, to ‘reside’ where he ‘lives,’

and this is true for voting privileges, provided he

has lived there for the length of time prescribed by

law; and certainly this is true if he declared such

to be his intention and he proceeds to perform the

acts and duties incident to legal residence, such as

securing his poll tax receipt or exemption certificate,

and for the very purpose of so doing, and then

actually votes, at the local or precinct elections of

his residence. McCharen v. Mead, Tex. Civ. App.,

275 S.W. 117; Hogg v. Waddell, Tex. Civ. App.,

42 S.W.2d 488.”

In Clark v. Stubbs, 131 S.W.2d 663 (Tex. Civ. App.

—Austin 1939) one of the challenged votes was that of

a college student who had voted in the county of her

parents’ residence. In upholding this vote, the court said:

“ . . that a student in college may retain his or her resi-

dence in the county where they resided before they became

a student.” The obvious inference is that if a student may

retain his or her residence in the county where he resided

before he became a student, he may also lose it and be-

come a resident of the place where he is attending college.

This precise situation, where a person loses his previous

residence in the county of his parents’ residence, is illus-

trated by Spraggins v. Smith, 214 S.W.2d 815 (Tex. Civ.

App.—Amarillo 1948) where a young woman had lived

with her parents before going to Washington to take a

C34

job which arguably would not be permanent. The court

upheld a trial court determination that the young woman,

who had gone to Washington for an arguably temporary

job, had lost her residence in the county where her

parents resided and her vote was disallowed.

Another case where a student lost his residence in the

county where his parents resided, and where he had

resided before becoming a student, is Harwell v. Morris,

143 S.W.2d 809 (Tex. Ciy. App.—Amarillo 1940).

This was an election contest involving Oldham County.

The challenged voter had left Oldham County and gone

to Amarillo where he became a student with a part time

job. The trial court, with appellate court concurrence,

held that the student had lost his residence in the county

where he had resided before becoming a student and had

become a resident of Amarillo where he was a student

with a part time job.

It is clearly inferable from Mr. Symm’s detailed testi-

mony on deposition and at the trial that he will register

a dormitory student at Prairie View, only if the dormi-

tory student is a Waller County native whose family

lives in Waller County, or if the student has been promised

a job in Waller County after he completes school. No

Texas case supporting this procedure has been discovered.

Even without reference to the unconstitutionality of Texas

Election Code Article 5.08(k), Symm’s procedures and

criteria with reference to dormitory students appears in-

consistent with the relevant Texas cases.

Authorities Relating to Pendent or Ancillary Jurisdiction

Both the State of Texas and Symm contend that this

court has pendent jurisdiction to decide the controversy

C35

between them relating to whether or not the Secretary

of State, pursuant to the powers granted to him bv the

Texas Election Code, has the power to prohibit Symm

from using the Symm questionnaire. The United States,

for reasons not apparent to the undersigned, contests this

pendent jurisdiction.

Rule 13(g), Fed. R. Civ. Proc., in its pertinent parts,

states that:

“A pleading may state as a cross claim any claim

by one party against a co-party arising out of the

same transaction or occurrence that is the subject

matter either of the original action, or of a counter-

claim therein .. .”

The term “transaction” as used in Rule 13(g) has a “flex-

ible meaning. It may comprehend a series of many oc-

- currences, depending not so much upon the immediateness

”

of their connection as upon the logical relationship . . .

Moore v. New York Cotton Exchange, 270 U.S. 593, 46

S.Ct. 367, 70 L.Ed. 750 (1926).

[2] Applying the language of Moore and the test as

set forth in Revere Copper & Brass, Inc. v. Aetna Casu-

alty Insurance Company, 426 F.2d 709 (Sth Cir. 1970),

it would appear that the subject matter of the cross-

claims between White, Hill and Symm do in fact arise

out of the same “transaction” as does the United States’

complaint. Accordingly it would appear that this court

does have pendent jurisdiction over the controversy be-

tween White, Hill and Symm. See United Mine Workers

of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16

L.Ed.2d 218. It is apparent that the state and federal

claims both derive from a “common nucleus of operative

C36

fact and that all of the claims asserted by all of the

parties are such that the parties would ordinarily be

expected to try them in one judicial proceeding. See

383 U.S. 715 at 725, 86 S.Ct. 1130, 16 L.Ed.2d 218.

Authority of the Secretary of State to Prohibit

Use of the Symm Form

[3] The Texas Election Code, on its bare language,

supports the claim of the Secretary of State and the

Attorney General that the Secretary of State has power

to prohibit use of the Symm form, particularly where,

as here, there is substantial evidence that the Symm form

has been used as an integral part of a pattern of conduct

which abridged the voting rights of a segment of the

citizenry. When the statutory language is considered in

the light of the history set forth on page 1246 above in

this Memorandum Opinion, the conclusion that the Secre-

tary of State did have the authority to issue his Emergency

Order No. 004.30.05.213 is confirmed.

The Texas Election Code, after amendment in 1975

in apparent response to the trial court’s opinion in Ballas

reads:

“Article 1.03. Secretary of State as Chief Election

Officer.

“Subdivision 1. The Secretary of State shall be

the Chief Election Officer of this state, and it shall

be his responsibility to obtain and maintain uni-

formity in the application, operation and interpre-

tation of the election laws. In carrying out this

responsibility, he shall cause to be prepared and dis-

tributed to each county judge, county tax assessor-

collector, . . . detailed and comprehensive written

directives and instructions relating to and based

C37

upon the election laws as they apply to elections

Such directives and instructions shall include

sample forms of ballots, papers, documents, records

and other materials and supplies required by such

election laws.

“Article 5.02. Qualification and Requirements for

Voting.

(b) All citizens of this state who are otherwise

qualified by law to vote at any election of this state

oo Se ee or other politi-

cal subdivision, shall be entitled and allowed to vote

at all such elections. The Secretary of State shall, by

directive of the Secretary of State pursuant to

section may be by injunction obtained by the At-

torney General.”

Bullock v. Calvert, 480 S.W.2d 367 (Sup. Ct. Tex.

1972) is not factually analogous; however, the language

of the Texas Supreme Court supports the Secretary of

State’s power to issue the Emergency Order. Justice

Reaviey there said:

“ . . . He (ie, the Secretary of State) is

designated ‘Chief Election Officer’ for the

of obtaining uniformity in the operation of the elec-

. He is to assist and advise all election of-

‘the state. It i

surely his office to com-

C38

Recent cases of the Supreme Court of the United States

Relating to State Restrictions on the Right to Vote

Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13

L.Ed.2d 675 (1965) involved a constitutional provision

prohibiting any member of the armed forces who moved

his home to Texas during the course of his military ser-

vice from voting in an election in Texas so long as he

was a member of the armed services. The State of Texas

in Carrington made arguments very similar to those as-

serted by Mr. Symm herein. The state argued it could

reasonably be assumed that servicemen were mere trans-

ients who would not remain within the state for an ex-

In rejecting the state's arguments, the Supreme Court

said:

oat 84 L.Ed. 155 cannot c

of a particular of bona fide residents. Y:

thet is whet Texte claims sec

District, 395 U.S. 621, $9 SC. I

(1969) held it unconstitutional for the

Yesk to sestdet the sight to veto fe echoed elections to

owners of real property or parents of children attending

schools, relying upon earlier language of Reynolds v.

Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.

2d 506 (1964) wherein it was stated that:

;

{

C39

“Siase tho sight to eusssiee the enshie ino Sue

and unimpaired manner is preservative other

basic civil and political rights, any alleged infringe-

ment of the right of citizens to vote must be care-

fully and meticulously scrutinized.”

While pointing out that the plaintiff, a bachelor and

non-property owner who lived with his parents, never-

theless was a member of the community and that the

entire community had a crucial interest in the quality

and structure of public education, Justice Warren said

(395 U.S. at 627, 89 S.Ct. at i890):

when we are reviewing statutes which

deny sonic residents the right to vote, the genera

utes and the traditional approval given state classi-

fications if the Court can conceive of a ‘rational

basis’ for the distinctions made are not applicable.

See Harper v. Virginia State Bd. of Elections, 383

U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d

169 (1966). The presumption of constitu "

and the approval given ‘rational’ classification in

other types of enactments are based on an assump-

structured so as to represent fairly all the people.

However, when the challenge to the statute is in

effect a challenge of this basic assumption, the as-

sumption cup Go lnnger carve as the Sent Ser gee

On the same day that it decided Kramer, supra, the

Supreme Court held in Cipriano v. City of Houma, 395

U.S. 701, 89 S.Ct. 1897, 23 LEd2d 647 (1969) that

right of all properly qualified voters to vote in elections

C40

called to approve the issuance of revenue bonds by a

cipal bonds by 8 icine wtiliew

In Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752,

26 L.Ed.2d 370 (1970), the Supreme Court held that

residents of a federal reservation or enclave from voting

in the State of Maryland because such deprivation con-

Stituted a violation of the Equal Protection Clause. Jus-

tice Marshu. said (398 U.S. at 423, 90 S.Ct. at 1755):

- there can be no doubt at this date that

169 (1966); see Williams v. Rhodes, 393 US. 23,

29, 89 S.Ct. 5, 9, 21 L.Ed.2d 24 (1968). More-

, the right to vote, as the citizen's link to his

laws and government, is protective of all funda-

mental rights and privileges. See Yick Wo v. Hop-

kins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30

L.Ed. 220 (1886); Wesberry v. Sanders, 376 U.S.

C41

tecetion Clause of the 14th Amendment.

Mr. Symm's practices here are inconsistent with the

philosophy and trend of the foregoing cases, and directly

in contravention of the holdings and language in Car-

rington v. Rash, supra, and Evans v. Cornman, supra.

CONCLUSION

Mr. Symm’s forthright admission that he has, for many

years, applied the unconstitutional presumption of What-

ley establishes that the plaintiff is entitled to relief against

Symm. Since Symm has, for a number of years (in the

face of advice from the Secretary of State) continued to

eee

> dapsabinnee ee emda nnrer cae: icles

Se ee rere mee seen Cae

Plaintiff has not on this record demonstrated that it is

entitled to any relief against the County Commissioners

fee Soe. While it could be inferred that the

ns cian dn ths tems eommattion Gen naa

none of the students at Prairie View are properly classi-

fied as residents of Waller County, this fact is not estab-

not a redistricting case. Plaintiff has not sought redistrict-

County is the subject matter of another suit, and thus

the court at this time will deny relief against the County

Commissioners of Waller County, except that the United

States is given leave to reopen the factual record within

C42

thirty (30) days, to introduce additional evidence and

» additonal antharitl toe tn ‘ble relief

against the Waller County Commissioners in this case,

if the United States believes that such relief is appropriate.

It appears from this record that the State of Texas,

the Secretary of the State of Texas, and the Attorney

General of Texas have taken all practicable steps within

their command to encourage Mr. Symm to apply a cor-

rect rule of law and to protect the 14th, 15th and 26th

Amendment rights of Prairie View dormitory students;

therefore, no relief against the State of Texas, the Secre-

tary of State of the State of Texas, or the Attorney Gen-

eral of Texas would appear appropriate.

The Clerk will forward true copies hereof to counsel

of record who will draft and submit judgment accordingly.

Waller County, ais dis Sin eeeaiias te tae

port of the application of the undersigned for a voter

Registrary, as the case may be:

C43

Please print or type your name and address:

Are you a college student? . If so,

where do you attend school? :

How long have you been a student at such school?

. Where do you live while in college?

. How long have you lived in

Texas? . In Waller County?

. Do you intend to reside in

Waller County indefinitely? . How long

have you considered yourself to be a bona fide resident

of Waller County? . What do you plan

to do when you finish your college education?

Do you have a job or position in Waller County?

. Own any home or other property in

Waller County? . Have an automobile

registered in Waller County? . Have a

telephone listing in Waller County? . Be-

long tu 2 Church, Club or some Waller County Organiza-

tion other than college related? . If so,

please name ther: |

Where do you live when the colleges is act in sup

sion?

What address is listed as your home address with the

college?

Give any other information which might be helpful:

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1668

UNITED STATES OF AMERICA,

Appellant,

versus

STATE OF TEXAS, ET AL..,

Appellees.

Appeal from the United States District Court for the

Southern District of Texas

(Filed March 31, 1977)

Before GOLDBERG, CLARK and FAY, Circuit Judges

BY THE COURT:

The application of the doctrine of absention in this

case was improper. The motion of the United States for

summary reversal is granted to the extent that the final

judgment entered in this cause on the 15th day of March,

1977 is vacated and the cause is remanded to that Court

for further proceedings consistent with this Order.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 76-H-1681

UNITED STATES OF AMERICA,

Plaintiff,

versus

STATE OF TEXAS; MARK WHITE,

Secretary of State of Texas;

JOHN HILL, Attorney General of Texas;

WALLER COUNTY, TEXAS;

LE ROY SYMM, Tax Assessor-Collector of

Waller County, Texas,

Defendants.

(Filed March 15, 1977)

FINAL JUDGMENT

BE IT REMEMBERED that the above entitled and

numbered action came on for a determination on several

pre-trial matters, including the Court's consideration sua

sponte of whether it should abstain from deciding the

underlying merits of this action pending a state court

determination of state law issues, and for the reasons

stated in this Court’s Memorandum Opinion of even date,

it is

ORDERED that the motion of defendants Symm and

Waller County to dismiss, which has been treated as a

motion for summary judgment pursuant to Fed. R. Civ. P.

12(b), be, and the same hereby is, DENIED, and it is

further

ORDERED in accordance with this Court’s abstention

that the above entitled and numbered action be, and the

same hereby is, DISMISSED WITHOUT PREJUDICE

to its re-filing after a final determination in state court

of the state law issues.

The Clerk shall file this Final Judgment and send

a copy to counsel.

Each party shall bear its own costs.

DONE at Houston, Texas, this 15th day of March,

1977.

/s/ JOE INGRAHAM

Joe Ingraham

Senior United States Circuit Judge

/s/ JAMES NOEL

James Noel

Senior United States District Judge

/s/ ROSS N. STERLING

Ross N. Sterling

United States District Judge

UNITED STATES of America, Plaintiff,

STATE OF TEXAS et al., Defendants.

Civ. A. No. 76-H-1681.

UNITED STATES DISTRICT COURT

S. D. Texas,

Houston Division.

March 15, 1977.

The United States brought action against the State of

Texas, state officials, and county voting registrar for

declaratory and injunctive relief, alleging that discrimina-

tory voting registration procedures were being applied

by the county registrar to students attending college in

the county. Following denial of motions to dissolve three-

judge court, to dismiss, and for preliminary in‘unction,

422 F.Supp. 917, the three-judge District Court, Noel,

Senior District Judge, held that action was not barred

by res judicata on basis of final judgments in prior suits

brought by private individuals challenging the same voter

registration proceedings, since the interests of the United

States were not adequately represented in the prior suits

because it was seeking to protect voting rights of all

college students in county, while prior suits were not

class actions, and because United States raised racial

discrimination issue not raised in prior suits; but that

abstention was appropriate because of presence of un-

certain issue of state law as to duty of state officials to

prohibit use of questionnaire by county registrar, which

could render moot the federal constitutional issues; and

that there is no per se exception to the abstention doctrine

in federal voting rights cases.

Dismissed without prejudice.

John P. MacCoon, Dept. of Justice, Washington, D. C.,

in Charge; James R. Gough, Asst. U. S. Atty., Houston,

Tex., Local Counsel, for United States.

David M. Kendall, Jr., First Asst. Atty. Gen., Austin,

Tex., for State of Texas and John L. Hill, Atty. Gen.

Mark White, Secretary of State of Texas, Austin, Tex.,

and Will Sears, Michael T. Powell, Sears & Burns, Hous-

ton, Tex., for Waller County, Tex. and Le Roy Symm,

Tax Assessor-Collector of Waller County, Tex.

Before INGRAHAM, Senior Circuit Judge, NOEL,

Senior District Judge and STERLING, District Judge.

NOEL, Senior District Judge.

MEMORANDUM OPINION

This action is again before the Court, on cross-motions

for summary judgment, the United States’ Motion for a

Preliminary Injunction, and the Court’s consideration

sua sponte of the question of abstention.’ In this suit for

1. This suit, including a Motion for a Preliminary Injunction,

was filed on October 14, 1976. That Motion for a Preliminary In-

junction sought temporary relief with respect to the registration of

students for the November 2, 1976 general election and was denied

as moot by Order entered on October 29, 1976. The Court’s memo-

randum opinion is reported at 422 F.Supp. 917. The Motion for a

Preliminary Injunction presently before the Court was filed on

February 8, 1977 and seeks temporary relief with respect to local

elections to be conducted in Waller County on April 2, 1977.

declaratory and injunctive relief, the United States alleges

that discriminatory voter registration procedures and

standards are applied by Le Roy Symm, the Tax Assessor-

Collector of Waller County, Texas, in his capacity as

voting registrar, to students attending Prairie View

A & M College in violation of 42 U.S.C. §§ 1971(a)

and 1973 as well as the Fourteenth, Fifteenth, and Twenty

Sixth Amendments to the Constitution. In particular, the

United States alleges that defendant Symm, the voting

registrar, selectively uses a self-formulated questionnaire”

in determining whether students are residents of Waller

County for voting purposes, and that Symm is the only

registrar in Texas that utilizes such a questionnaire.

I. BACKGROUND

The use of this very same questionnaire by Symm for

purposes of determining voter residency has been the

2. The questionnaire asks the following questions:

Please print or type your name and address.

Are you a college student?

If so, where do you attend school?

How long have you been a student at such school?

Where do you live while in college?

How long have you lived in Texas? In Waller County?

Do you intend to reside in Waller County indefinitely?

How long have you considered yourself to be a bona fide cesi-

dent of Waller County?

What do you plan to do when you finish your college education?

Do you have a job or position in Waller County?

Own any home or other property in Waller County?

Have an automobile registered in Waller County?

Have a telephone listing in Waller County?

Belong to a church, club or some Waller County organization

other than college related?

If so, please name them.

Where do you live when the college is not in session?

What address is listed as your home address with the College?

Give any other information which might be helpful?

ee-nttet beer oan aeons

subject of two prior suits. In Wilson v. Symm, 341 F.

Supp. 8 (S.D. Tex. 1972), five black students of Prairie

View A & M College brought suit under 42 U.S.C. § 1983,

alleging that all students in Waller County, and only

students, were required to complete the residency ques-

tionnaire in violation of the Fourteenth and Twenty Sixth

Amendments. The classification alleged in Wilson was

between students and non-students in Waller County.

A claim of racial discrimination was originally plead,

but abandoned in later pleadings. The Court in Wilson

held that the questionnaire did not constitute a discrimi-

nation in violation of the Fourteenth or Twenty Sixth

Amendments, but that it was a permissible means of

determining residency.

In Ballas v. Symm, 494 F.2d 1167 (Sth Cir. 1974),

aff'g, 351 F.Supp. 876 (S.D. Tex. 1972), a white student

at Prairie View A & M attacked the use of the question-

naire on the theory that Symm was applying a different

practice or procedure for determining the residency of

students than was applied to non-students in Waller

County in violation of the Fourteenth Amendment and

42 U.S.C. § 1971(a)(2)(A).* The Fifth Circuit noted

that Symm required the questionnaire not only of students,

but also of non-student applicants whom he did not know

and whose names could not be found on the tax rolls.

Thus, the use of the questionnaire was upheld by the

3. 42 U.S.C. § 1971(a)(2)(A) provides that:

(2) No person acting under color of law shall—

(A) in determining whether any individual is qualified under

State law or laws to vote in any election, apply any standard,

practice, or procedure different from the standards, practices,

or procedures applied under such law or laws to other individuals

within the same county, parish, or similar political subdivision

who have been found by State officials to be qualified to vote;

tion about the Waller - sac voter registration

fhe reptar at anyof the thee sep. The fact that

being

§ 13F1(a) (2).

494 F.2d at 1172.

that the purpose and eft of the use of the ques aie

ne eee Prairie View A & M s students,

by which students are registered in all the other counties

beunin fentintions of Suber fenenien emp tnentnd ett

the State of Texas. It is asserted that no other county in

a eS ee eee ee eee

AOM ho pabetenty tet ste et Ge Oe

dents could result in Waller County becomin:

county in the State of Texas with a black voting majority.

cate tae: tla iedn cen ee

jt this sit esau i alleged that

county registrar.‘

Because it appeared that the United States’ complaint

ee De ee OS Eee eer ee eee ©

Entry of February 17, 1977, ES eee & Ge

61 “S.Ct 643, 85 L.Ed. 971 (1941). Before reaching

a See plaintiff’ United States’ Brief of October 21, 1976 at p. 5,

a. 1.

me aera est ati, @ aati = oats Ge

both the federal and state law claims in this suit.

Il. RES JUDICATA

(1, 2) © ves jutleate wer egyaun lam, Gas Ge

all grounds for recovery that were available to the parties

in 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), regardless of

mined. To apply the principle of res judicat

eae cane oo tndeis Ge one a ee

Ballas, and (c) that the cause of action is the same.

ltimore SS. Co. v. Phillips, 274 US. 316, 47 S.Ct.

600, 71 L.Ed. 1069 (1927).

[3] Both Ballas and Wilson esultec

on the merits, but the second requisite, identi |

ee ee oe ee nae the named slaintift

ments can bind persons not party to the litigatior

S. The defendants originally filed a Motion te Dismiss on October

21, 1976. By order of this Court on October 29, 1976, the Motion

to Dismiss was deemed a motion for summary judgment pursuant

to Rule 12(b), Fed. R. Civ. P., to the extent that it raised the af-

firmative defense of res judicete and was denied im all other respects.

That motion is referred to throughout this opinion as the motion

for summary judgment.

as a bar if they are in privity to the parties to such

examples: (a) a non-party who has succeeded to a party's

interest in property, (b) a non-party who controlled the

capes ot and Cs) © cenguny whee int t

quately by a a party in the original suit.

Sntinae dies Gate Texas International Air-

lines Inc., 546 F.2d 84, 95 (Sth Cir. 1977).*

_ [4] The United States has not succeeded to any interes

F10

the issue of whether or not the suit was properly main-

tainable as a class action was expressly held to be moot.

The Court of Appeals stated,

mg seldeney

Ballas, 494 F.2d at 1172. In other words, because the

ae ci ig

Te at

ial

and the legisla-

being violated, protecting the voting rights of all college

inate on the basis of race or age.

second, in terms of the substantive scope of the alleged

tion enacted thereunder by virtue of voter registration

as a condition of registration in Waller County, and,

Fifteenth, or Twenty Sixth

ie Hil i A.

it ;

eens =

taal

Hinkbes is

Fil

represented by the plaintiffs in Ballas and Wilson were

Because the plaintiffs in Ballas and Wilson were never

deemed adequate class representatives and the cases were

not certified as class actions, any Waller County student

not a party to those cases could now challenge the validity

of the questionnaire on the same grounds, and it follows

that the United States should similarly not be barred

from representing the interests of those students. A per-

suasively similar case, Black Voters v. McDonough, 421

F.Supp. 165 (D. Mass. 1976), involved a class action

attack on at-large voting procedures for election of mem-

argued that the suit was barred by a prior suit in which

0 Gass Rigas «0 Oe ee eee

indicate, the Cour in McDonough held that no cass was

only the parties named in the first suit and those in privity

with them, and that the parties in McDonough were

not the same or in privity to those in the first suit.

[5]

the Ballas and Wilson plaints, not only did those prior

at Waller Coser aadeos ee a

& Jecquelin, 391 F.2d $55 (2nd Cir. 1968), Green 2. Wolf Corpore-

tion, 406 F.2d 291 (2nd Cir. 1968) and Esplin v. Hirschi, 402 F.2d

94 (10th Cir. 1968). That the Fifth Circuit did not demonstrably

apply Rule 25 to the record before it eliminates any doubt as to the

language cited by the defendants — any effect other than

Fi2

first two suits, but also in a substantive sense the prior

plaintiffs wholly failed to represent the United States’

interest in obtaining an adjudication as to possible racial

discrimination in violation of the Fourteenth and Fif-

teenth Amendments and the legislation enacted there-

under. In Wilson the plaintiffs, although black, voluntarily

dropped their racial discrimination challenge from the

original complaint. In Ballas, the plaintiff, a white, did

his complaint that racial discrimination was irrelevant to

his suit.” Consequently, this Court concludes that the

government's interest in obtaining a judicial determination

of whether the questionnaire is racially discriminatory

has not been adequately represented in Ballas or Wilson.

For the reasons stated above, the principle of res judicata

does not apply here, rendering it unnecessary to deter-

mine whether or not the causes of action are the same."°

The defendants’ motion for summary judgment will be

denied.”

9. " Belles, 351 F Supp. at 889.

10. Defendants argue that the United States’ failure to participate

cause of action earlier initiating suit prior to Wilson, by

in Wilson, by ix : suit on behalf of the alleged class

intervening in Belles, or by appearing by special leave

appeal, “supplies the Defendants’ claim of res judicata

iff

Ene

‘i

;

F13

Ill. ABSTENTION

Having determined that res judicata does not bar the

federal or state claims in this suit, the Court must next

determine whether it should abstain from adjudicating

the federal claims pending a resolution in state court

of the state claims. As was pointed out in Part I, supra,

the major substantive difference between the present case

and the Ballas and Wilson cases is the statewide scope

of the discrimination alleged here. Rather than merely

complaining of the treatment of students vis-a-vis non-

students in Waller County, the present suit complains

of the treatment of the predominantly black student popu-

lation in Waller County vis-a-vis the student population

in every other county in Texas wherein institutions of

higher learning are located. Rather than complaining of

the use of the residency questionnaire per se, the failure

to obtain statewide uniformity in its use or disuse is

complained of. The United States contends that state

law imposes a duty upon the Texas Secretary of State and

Attorney General to prohibit the nonuniform use of a

residency questionnaire. Thus, it is precisely this claim

of an impermissible lack of statewide uniformity that not

only distinguishes this case from Ballas and Wilson, but

also raises a serious abstention question.

[6] Under the well-known doctrine of Railroad Com-

mission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct.

643, 85 L.Ed. 971 (1941), a federal court should abstain

from adjudicating a federal constitutional claim when

there are unsettled questions of state law that may be

dispositive of the case. The policy considerations under-

lying the Pullman abstention doctrine were set forth by

the Supreme Court in Harman v. Forssenius, 380 U.S.

Fl4

528, 534, 85 S.Ct. 1177, 1181-1182, 14 L.Ed.2d 50

(1965) as follows:

In applying the doctrine of abstention, a federal

court is vested with discretion to decline to exer-

cise or to postpone the exercise of its jurisdiction

in deference to state court resolution of underlying

issues of state law. Where resolution of the federal

constitutional question is dependent upon, or may

be materially altered by, the determination of an

uncertain issue of state law, abstention may be

pom cies te Ge penny Sieiee i

ederal-state relations, interference with important

state functions, tentative decisions on questions of

state law, and premature constitutional adjudication.

[citation omitted]

The first requirement of a Pullman abstention is the

presence of an uncertain issue of state law. The question

of state law raised by this suit is whether the use by

the Waller County registrar of a questionnaire as a part

of his voter registration procedure is a practice which

the Texas Secretary of Staie and Attorney General have

a duty under state law to prohibit in order to bring

Waller County procedures in line with the procedures

used elsewhere in the State of Texas. The Texas Election

Code designates the Secretary of State as the chief elec-

tion officer and makes it his responsibility “to obtain and

maintain uniformity in the application, operation, and

interpretation of the election laws” through the issuance

of directives to appropriate local officials. Tex. Election

Code, art. 1.03. Pursuant to this statutory provision, in

1972 the Texas Secretary of State attempted to prohibit

the use of residency questionnaires by issuing a bulletin

which stated that:

F15

No county registrar may require any affidavits or

questionnaires in addition to the information re-

quired on the application for a voter-registration cer-

tificate.

In Ballas v. Symm, 351 F.Supp. at 888, the District Court

considered the effect of the 1972 bulletin and found that

the bulletin was merely an advisory opinion, unenforce-

able at law and without binding effect on the county

registrars. In 1975, apparently in response to the Ballas

ruling, the Texas Legislature added Article 5.02(b)"’ to

the Texas Election Code which, inter alia, provides for

enforcement of the directives of the Secretary of State

by way of injunctions obtained by the Attorney General.

There have been no state court decisions interpreting

Article 5.02(b) or in any way elucidating the extent of

the Secretary of State’s power and duty to obtain uni-

formity in the voter registration procedures of county

registrars.'* It would appear, therefore, that the Court is

confronted with an unsettled question of state law.

12. Article 5.02(b), Tex. Election Code, provides that:

All citizens of this state who are otherwise qualified by law to

vote at any election of this state or any district, county, munici-

pality, or the political subdivision, shall be entitled and allowed

to vote at all such elections. The Secretary of State shall, by

directive, implement the policies stated herein throughout the

elective procedures and policies by or under authority of this

state. Enforcement of any directive of the Secretary of State

pursuant to this section may be by injunction obtained by the

Attorney General.

13. Defendants Symm and Waller County argue that this question

of state law was settled by the decision of the Texas Supreme Court

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

Texas Supreme Court considered the question of whether the Secre-

tary of State could pay for the expenses of primary elections out

of state funds after the Texas system of financing primaries by filing

fees had been declared unconstitutional. The Secretary of State con-

tended that the expenditure of state funds was authorized because

he had determined in his capacity as the chief election officer pur-

F16

To abstain under Pullman the Court must also deter-

mine that the resolution of the uncertain issue of state law

might clarify or eliminate the federal constitutional issue.

If the state courts here should hold that the Texas Secre-

tary of State has the power to regulate county voter

registration procedures and that the use of the ques-

tionnaire in Waller County is of such significance and

is at such a variance with the voter registration pro-

cedures used elsewhere in Texas that the Texas Secre-

tary of State and Attorney General have a duty under the

Texas Election Code to prohibit its use, then the Four-

teenth, Fifteenth, and Twenty Sixth Amendment issues

in this suit would be rendered moot. Moreover, even if

the state courts should hold that the use of the question-

naire by the Waller County registrar is not subject to the

regulation of the Texas Secretary of State and Attorney

General, the constitutional claims in this case would be

clarified by establishing which state officers are respon-

sible for the alleged constitutional violations.

Another factor supporting abstention in this case

is the nature of the state law issue involved. The ques-

tion of the relative rights and responsibilities of the

Secretary of State and the county registrars in inter-

preting and applying the Texas Election Code is a deli-

cate matter of state administration affecting the balance

suant to Article 1.03 of the Texas Election Code that uniformity

could not be obtained in the holding of the approaching primaries

without such expenditure. The Texas Supreme Court held that

Article 1.03 did not empower the Secretary of State to expend state

money because the Texas Constitution required legislative authoriza-

tion and appropriation for the expenditure of public funds. The

holding of Bullock is thus limited to an unusual factual situation

involving the authority of the Secretary of State to expend state

funds and in no way settles or even touches upon the power of the

Secretary of State to prohibit variances in the voter registration

practices of the various county registrars.

F17

of power between state and local officials. Moreover, as

was stated by Justice Black in Oregon v. Mitchell, 400

U.S. 112, 125, 91 S.Ct. 260, 265, 27 L.Ed.2d 272

(1970):

No function is more essential to the separate and

independent existence of the States and their govern-

ments than the power to determine within the limits

of the Constitution the qualifications of their own

voters for state, county, and municipal offices and

the nature of their own machinery for filling local

public offices.

For that reason, the Fifth Circuit in a student voting

rights case ordered the district court to abstain, holding

that:

In a matter of such importance to the States and

their governments, a federal court should be slow to

intervene, but should instead avoid needless conflict

= the administration by the State of its own

airs.

Harris v. Samuels, 440 F.2d 748, 752 (Sth Cir. 1971).

It should also be noted that those who attack the

use of the Waller County questionnaire are not in a

position to complain of the piecemeal adjudication and

concomitant delay in obtaining an ultimate decision

which abstention will generate. The Waller County regis-

trar has utilized the disputed questionnaire in the same

form and substantially the same fashion since 1971.‘*

There appears to be no reason why the present claims

could not have been pursued in either the Wilson or Ballas

14. See Affidavit of Le Roy Symm, filed on November 19, 1976

at p. 3.

F18

suits, which were filed in 1971 and 1972, respectively.

If the United States felt that its interests were not

adequately represented by the plaintiffs in Wilson or

Ballas, the United States could have intervened in those

suits. Instead, the United States and those who complain

of the use of the questinnaire in Waller County have at-

tacked this practice in piecemeal fashion in three different

Suits over a period of five years. The party in this suit

who has cause to complain of piecemeal adjudication and

delay is defendant Symm, the registrar of Waller County.

However, it appears that Symm will not be prejudiced

by the delay attendant to an abstention in this case be-

cause he will be free to continue to utilize his question-

naire during the period of the abstention. It is noteworthy

that the other defendants, the State of Texas, the Texas

Secretary of State, and the Texas Attorney General, all

favor abstention in this case.

[7-9] For the foregoing reasons, the Court concludes

that the special circumstances necessary to justify a Pull-

man abstention are present in this case. Indeed, the

United States does not contend otherwise, but opposes

abstention solely on the basis that actions brought under

42 U.S.C. §§ 1971 and 1973 constitute a per se excep-

tion to the abstention doctrine because those statutes vest

the Court with mandatory federal jurisdiction.’® It is

15. It should be noted in this regard that the Court by Minute

Entry of February i7, 1977 indicated its concern about whether the

United States had an adequate remedy in state court to obtain an

adjudication of the state law issues and requested briefing on that

point. The United States apparently concedes that it has an adequate

state remedy inasmuch as its brief makes no attempt to show

otherwise. The defendants in their briefs agreed that adequate state

remedies are available to the United States. It would appear to the

Court that the United States could seek declaratory, mandatory in-

junctive, or mandamus relief in state court. See Leiter Minerals,

been recognined thet abvtention “does aot. . involve the

ment of its exercises.” Gentes © NAACP, 360 US.

167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959).

The United States cites U.S. v. Wood, 295 F.2d 772

(Sth Cir. 1961), cert. denied, 369 U.S. 850, 82 S.Ct.

933, § LEd2d 9 (1961),"* in support of it

—s USC. §§ ove and 1973 zr that manda:

D tention In U. S. v. Wood the

USC. $1001 > saltin Gfmiam ten geemanie

0 Mage & saute caust oh Ge Gany Gat Go pemeaien

an tals ch Gn Sues aes ees i eee

City of Jeannette, 319 US. 157, 63 S.Ct. 877, 87

L.Ed. 1324 (1943). In Douglas, the Supreme Court held

sought to be enjoined in that case might actually deter the

Inc. v. U. S. 382 US. 220, 228-29, 77 S.Ct. 287, 1 LEd.2d 267

(1957). In the absence of any showing to the contrary, the Court

will not presume the state remedies to be inadequate. See Railroad

Commission of Texas v. Pullman Co, 312 US. 496, S01, 61 S.Ct.

643, 85 L.Ed. 971 (1941).

16. The only other case cited by the United States, U. S. fo.

Raines, 362 US. 17, 80 S.Ct. $19, 4 L_Ed2d $24 (1960), is wholly

inapposite to the propriety of abstention.

F20

eS es Se a ee ee

sos ietuiihee ear ie Gas A es as ee

Saaty Gib Cae Cp Cee cee Se ee ee Se

City of Jeannette, supra, by holding that the defense

USC. § 1971(d), which provides that jurisdictior

§ 1971 shall be exercised “without regard to whether the

or other remedies thet may be provide? by law.”

[10, 11] Although U. S. v. Wood, supra, makes clear

under 42 U.S.C. § 1971, it in no way holds or indicates

that where there is an unsettled question of state law

constitutional claims a federal court might not postpone

deciding the federal issues pending a resolution in state

court of the state issues. It must be recognized that

abstention and exhaustion of state remedies are distinct

doctrines serving different purposes. Exhaustion of state

remedies is required in certain classes of cases in order

to give the state courts as a matter of comity the

opportunity to make the initial determination as to all

cleims, federal or state, raised in those cases."" Pullman

17. See, e. g, Derr v. Burford, 339 US. 200, 203-05, 70 S.Ct.

$87, os LEA. Tot (1950), for a discussion of the purpose of the

exhaustion doctrine in the context of habeas corpus actions filed by

F21

tention, on the other hand, is required

ionaiee Guanine wailable, but because there is

an uncertain question of state law which the state courts

SE ee ee ge

Although it has been suggested that an exception to

civil rights and voting rights cases,” the Supreme Court

has declined to create any such per se exception. In

Harrison v. NAACP, 360 US. 167, 79 S.Ct. 1025, 3

a oe paler egy pede sage nape

senton doctine in civil right case and held that

401 US. 476, 91 S.Ct. 856, 28 L.Ed2d 196 (1971).

In Manard v. Miller, 53 F.R.D. 610 (1971), aff'd mem..

405 U.S. 982, 92 S.Ct. 1253, 31 gy ht a

Guuist cout be 0 cutest wing dette eum” Acond

18. See McNeese v. Board of Education for Community Unit

San os Linen ie ck Ha SO CS oe, S y wee A

19. See, e. g. Wechsler, et PER 28 Co Sette

of the Judicial Code”, 13 L. & Contemp. Prob. 216, 230 (1948).

~~ baal .

—

oe aw

F22

ingly, the Court is of the opinion that there is no ex-

ae S&S Se ee ae ee ee

Pullman abstention are satisid here, and thatthe Cour

tin of the state law issues in state court, the proper pro

normal! Wous So Sex Ge Coast 0) cater 6 sy

Supreme Coust, however, has ruled that the state courts

cummet cotemteln © sult for © doctastary judgment so te

dp heieed Gite, Cadel Stee Ge te Oe, 0 OO

laney, 396 S.W.2d 855 (Tex. 1965). In order to avoid

be foreclosed to the United States, this case will be dis-

ae Se OS Oe a ea

US. 77, oe a 10 95 Sax 800, 43 L248 $2 (1975).

Civ A. No. 76-H-1681.

S. D. Texas,

Nov. 3, 1976.

nies lk acl tr 6 team ih Guam ee a>

oe ees = Sera on, See Gear A Three-Judge

ct with rapt the 1976 grwralcton Was moot

> Cesare a

John P. MacCoon, Atty. in Charge, Dept. of Justice,

Washington, D.C., James Gough, Asst. U.S. Atty., Hou

ton, Tex., for plaintiff.

David Kendall, First Asst. Atty. Gen. of Tex., Austin,

Tex., for The State of Texas, Mark White and John Hill.

tc ado Texas

Before INGRAHAM, Circuit Judge, and NOEL and

STERLING, District Judges.

NOEL, District Judge.

certain provisions of the Civil Rights Act of 1964 (42

US.C. § 1971(a)) and the Voting Rights Act of 1965

(42 US.C. § 1973). In particular, the United §$

complains of the practice of defendant Le Roy E. Symm

in the performance of his statutory duties as the Tax

of requiring students who apply to for in

phn © es ented ann cade 4 we

erty, auto registration, phone listing, address on the

college's records, post-graduate plans, and similar matters.

It is alleged that non-students in Waller County are not

that students attending colleges and universities in other

counties of the State of Texas are not required to com-

plete such a s1e<fic ,

James Noel on Monday, October 18, 1976, >

Gated Sate 0 gees Se

all of the defendants appeared at the conference through

Coust. In considering the Application for s Temporary

Restraining Order, the Court was concerned as to why

Gils sult was Sled ealy 19 days below Ge Newmar 2

thatthe Department of Justice with the assistance of the

deo voter supfeteation guocedums in Gale Guana

January of 1976, ye ao ene Os a ee

the fast Gat tno jules ettatis ee Cb wy ae

naire in Waller County had been unsuccessft

v. Symm, 341 F.Supp. 8 (S.D. Tex. 1972) and Ballas

v. Symm, 351 F.Supp. 876 (S.D. Tex. 1972), affd 494

F.2d 1167 (Sth Cir. 1974), are Pe Noel denied the

Application for a Temporary Res .

sidered the United States’ Motion to Convene a District

perth en Scaed cn he chim of te Used Site ts

Sixth Amendment. 42 U.S.C. § 1973bb(a)(2) requires

that such claims be heard and determined by a three-

judge court. Defendants opposed the convening of a three-

judge court on the grounds that the Twenty Sixth Amend-

ment claim was not of sufficient substantiality to support

three-judge court jurisdiction. See California Water Ser-

vice Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865,

82 L.Ed. 1323 (1938). Due to the necessity of immediate

action if a three-judge court were to be given an oppor-

tunity to review the case before the November 2 election

date and in keeping with the admonition of the Chief

Judge of this Circuit to leave the initial determination

of substantiality to the three-judge court itself, Jackson

v. Choate, 404 F.2d 910 (Sth Cir. 1968), the Motion

On October 19, 1976 the Chief Judge designated as

members of the Three-Judge Court to hear this case the

judges whose signatures are hereto affixed. A pre-trial

hearing was set for October 21, 1976 to hear oral argu-

the jurisdiction of the Three-Judge Court, to con-

any pre-trial motions, and to determine whether

when an evidentiary hearing should be set on the

United States’ Motion for a Preliminary Injunction.

the hearing on October 21, 1976 the Three-Judge

Court joined in the earlier denial by the single Judge

of the United States’ Application for a Temporary Re-

straining Order. At the conclusion of oral arguments

and the testimony of two witnesses, the Court announced

that it was taking all pending motions under advisement

and a ruling would be made on them as soon as possible.

Pending, in addition to the United States’ Motion for a

Preliminary Injunction, are the Motion of defendants

Symm and Waller County to Dissolve the Three-Judge

Court, and motions by each of the defendants to dismiss.

The Court will consider first the Motion to Dissolve tt:

Three-Judge Court, then the motions to dismiss, and

finally the Motion for a Preliminary Injunction.

1. Motion to Dissolve the Three-Judge Court

The Motion to Dissolve the Three-Judge Court is based

on the contention that the Twenty Sixth Amendment claim

asserted by the United States, upon which the convening

of the Three-Judge Court was based, is insubstantial.

Although on its face the requirement of a three-judge

court in the applicable statutes appears to be absolute,

the statutes have been interpreted to require three-judge

courts if and only if the claims thereunder were not in-

substantial. See, e. g., Ex Parte Poresky, 290 U.S. 30,

54 S.Ct. 3, 78 L.Ed. 152 (1933); California Water

Service Co. v. Redding, 304 U.S. 252, 58 S.Ct. 865,

82 L.Ed. 1323 (1938). In the context of one of the

recently repealed general three-judge court statutes, the

Supreme Court has defined insubstantiality as follows:

Title 28 U.S.C. § 2281 does not require the con-

vening of a three-judge court when the constitutional

attack upon the state statutes is insubstantial. “Con-

stitutional insubstantiality” for this purpose has been

equated with such concepts as “essentially fictitious,”

Bailey v. Patterson, 369 U.S. 31, at 33, 82 S.Ct.

549, 7 L.Ed.2d 512; “wholly insubstantial,” id.;

Se eee ee

“obviously frivolous,” Hannis Distillin |-

more, 216 U.S. 285, 288, 30 S.Ct. ess Led.

482 (1910); and “obviously without merit,” Ex

Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78

L.Ed. 152 (1933). The limiting words “wholly”

and “obviously” have cogent legal signi

the context of the effect of pcler decisions upon the

substantiality of constitutional claims, those words

import that claims are constitutionally insubstantial

only if the prior decisions inescapably render the

claims frivolous; previous decisions that merely ren-

der claims of dobutful or questionable merit do not

render them insubstantial for the purposes of 28

U.S.C. § 2281. A claim is insubstantial only if “its

unsoundness so clearly results from the previous

decisions of this court as to foreclose the subject and

a he — — the inference that the questions

re) can be the subject ‘

(Enopheris ject of controversy.

Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858

35 L.Ed.2d 36 (1973). sail,

Defendants argue that Carrington v. Rash, 380 US.

89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), Wilson v.

Symm, 341 F.Supp. 8 (S.D.Tex.1972), and Ballas y.

Symm, 351 F.Supp. 876 (S.D.Tex.1972), aff'd, 494 F.2d

1167 (Sth Cir. 1974), render the Twenty Sixth Amend-

ment claim insubstantial. The Supreme Court in Carring-

ton invalidated a provision of the Texas Constitution

which absolutely prohibited military personnel from estab-

lishing voter residency in Texas. In so doing, the Supreme

Court observed that only military personnel were subject to

an irrebuttable presumption of nonresidency, whereas other

groups, such as college students, which also presented

“specialized problems in determining residence”, were

“given at least an opportunity to show the election offi-

cials that they are bona fide residents.” 380 U.S. at 95,

85 S.Ct. at 779. In dealing with the special problems pre-

sented by the servicemen and students, the Supreme

Court emphasized “. . . that Texas is free to take reason-

able and adequate steps . . . to see that all applicants

for the vote actually fulfill the requirements of bona fide

residence.” 380 U.S. at 96, 85 S.Ct. at 780.

Defendants argue that the efforts of Symm to deter-

mine the true residence of voters through use of a ques-

tionnaire falls squarely within the permissible bounds

set out in Carrington. The problem with this argument

is that the Supreme Court in Carrington did not con-

sider or decide what steps could be reasonably taken to

determine the residency of special groups such as college

students. The Supreme Court merely held invalid an irre-

buttable presumption against such a group. Moreover,

Carrington was decided long before the ratification of

the Twenty Sixth Amendment. Thus, although the im-

plications of Carrington may render the Twenty Sixth

Amendment claim in this case of doubtful merit, the

Court cannot say that Carrington is conclusive or that

it renders the Twenty Sixth Amendment claim insub-

stantial. Cf. Whatley v. Clark, 482 F.2d 1230, 1233-34

(Sth Cir. 1973), cert. denied, 415 U.S. 934, 94 S.Ct.

1449, 39 L.Ed.2d 492 (1974).

Defendants also rely on Wilson v. Symm, supra, and

Ballas v. Symm, supra, as rendering the three-judge court

claim insubstantial. The Waller County voter registration

procedure, including the use of the very same question-

naire as is under attack here, was upheld in Wilson and

Ballas. The plaintiffs in Wilson and Ballas were students

at Prairie View A & M College and the defendant was

he tet oe

Symm, one of the defendants in the present case. In

Wilson the Court expressly rejected the argument that

the Waller County procedure violated the Twenty Sixth

Amendment. 341 F.Supp. at 17-18.

[1] Although Wilson and Ballas may very well be dis-

positive of the Twenty Sixth Amendment claim in this

case, the Court is of the opinion that the precedential

effect of those decisions do not render the three-judge

court claim insubstantial because lower federal court de-

cisions may not be used for that purpose. See, Nielsen,

“Three-Judge Courts”, 66 F.R.D. 495, 501 (1975). The

Supreme Court in considering the effect of prior decisions

has stated that “[{a] claim is insubstantial only if ‘its

unsoundness so clearly results from the previous decisions

of this court... .’” (Emphasis added) Goosby v. Osser,

409 U.S. 512, 518, 93 S.Ct. 854, 859, 35 L.Ed.2d 36

(1973). Thus, it would appear that insubstantiality must

rest upon the decisions of the Supreme Court.

[2, 3] However, defendants argue that Ballas and Wil-

son render the Twenty Sixth Amendment claim in this

case insubstantial not merely because of their stare decisis

effect, but also because those judgments operate as a

res judicata bar against that claim. The difficulty with

this argument is that the affirmative defense of res judicata

does not appear on the face of the pleadings. The asser-

tion of the defense of res judicaia raises significant issues

as to whether the United Siates, which was not a party

to the prior decisions, is nevertheless bound by them

and whether this case involves the same cause of action

as was adjudicated in the prior decisions. Although de-

fendants may ultimately be entitled to partial summary

judgment on the Twenty Sixth Amendment claim, the

Court in determining substantiality may not go beyond

the face of the pleadings, Ex Parte Poresky, 290 U.S. 30,

32, 54 S.Ct. 3, 78 L.Ed. 152 (1933), nor may the Court

avail itself of summary judgment procedure. See Dale v.

Hahn, 440 F.2d 633, 639, n. 11 (2d Cir. 1971). Accord-

ingly, the Court concludes that Ballas and Wilson do

not render the three-judge court claim insubstantial and

that the Motion to Dissolve the Three-Judge Court must

be denied.

2. Motions to Dismiss

Defendants Le Roy E. Symm and Waller County have

filed a Motion to Dismiss, which for the most part con-

sists of allegations that the United States has not acted

in good faith in filing this suit so near the pending gen-

eral election, and that because of the unconscionable de-

lay in filing suit any claim for injunctive relief with re-

spect to the pending election is moot. Since these allega-

tions do not constitute a complete defense to this suit,

but merely involve the availability of preliminary in-

junctive relief, the allegations will be taken up in the

part of the opinion dealing with the Motion of the United

States for a Preliminary Injunction.

The Motion of defendants Symm and Waller county

also attempts to raise the affirmative defense of res judi-

cata, The parties are hereby given notice that the Motion

to Dismiss, insofar as it attempts to raise the affirmative

defense of res judicata, shall be treated pursuant to

Fed.R.Civ.P. 12(b) as a motion for summary judgment

so that matters outside the pleadings may be considered

by the Court. See 2A Moore’s Federal Practice § 12.09 at

2307 n. 26. The parties shall have until November 22,

G1C

1976 to present all materials made pertinent to this Mo-

tion by Fed.R.Civ.P. 56. Movants Symm and Waller

County shall submit a brief on or before November 29,

1976 fully setting forth their position as to why the

United States is bound by the judgments in Wilson and

Ballas and which issues or claims are barred by the

judgments in those cases. The United States shall file a

reply brief on or before December 13, 1976 at which

time the Court shall take the motion for summary judg-

ment under advisement.

[4] The State of Texas, the Texas Secretary of State,

Mark White, and the Texas Attorney General, John Hill,

also have filed a Motion to Dismiss, asserting that the

Complaint fails to state a claim for relief against them.

The Complaint alleges that:

[iJn administering and enforcing the voting laws of

the State of Texas, the defendants Mark White and

John Hill have permitted local election officials, in-

cluding defendant Leroy Symm, to apply different

and more stringent voter registration standards to

the students attending Prairie View A & M College

than are applied both to students attending the

other institutions of higher learning in the State

whose total student population is majority white,

and to persons throughout Waller County and the

State of Texas who are not Prairie View students.

The Texas Secretary of State is the chief election officer

in Texas and it is his duty “. . . to obtain and maintain

uniformity in the application, operation and interpretation

of the election laws” through the issuance of directives

to appropriate local officials. Tex. Election Code, art.

1.03. Enforcement of the directives of the Secretary of

Gll

State is by way of injunction obtained by the Attorney

General. Tex. Election Code, art. 5.02(b). In light of

these statutory provisions it is the opinion of the Court

that the allegations of the Complaint state a claim for re-

lief against Secretary of State Mark White and Attorney

General John Hill.

The Court is also of the opinion that the State of

Texas was properly joined as a party defendant. This

action was instituted by the United States under, inter

alia, 42 U.S.C. § 1971(c), alleging that the Tax As-

sessor-Collector of Waller County, Texas had committed

acts constituting a deprivation of a right secured by 42

U.S.C. § 1971(a). 42 U.S.C. § 1971(c) provides in

pertinent part that:

[w]Jhenever, in a proceeding instituted under this

subsection any official of a State or subdivision

thereof is alleged to have committed any act or

practice constituting a deprivation of any right or

privilege secured by subsection (a) of this section,

the act or practice shall also be deemed that of the

State and the State may be joined as a party de-

fendant....

Accordingly, it is clear that the Complaint states a claim

for relief against the State of Texas, and the Motion of

the State of Texas, Secretary of State Mark White, and

Attorney General John Hill to Dismiss must be denied.

3. Motion for a Preliminary Injunction

The United States has filed a Motion for a Preliminary

Injunction, seeking to obtain temporary injunctive relief

to provide for the registration of Prairie View A & M

students prior to the November 2, 1976 election day. An

G12

in-court hearing has been requested to present oral testi-

mony.

[5] Before reaching the question of whether prelimi-

nary injunctive relief should be granted under traditional

equity standards, the Court must first consider whether

preliminary injunctive relief can be granted at this late

date. In other words, is the Motion for a Preliminary

Injunction moot? The Court finds, for the reasons which

follow, that the undisputed facts of this case establish

as a matter of law that the relief sought in the Motion

for a Preliminary Injunction cannot now be granted and

that the Motion is therefore moot. Accordingly, the

Motion for a Preliminary Injunction will be denied

without the necessity of an evidentiary hearing. See

Schlosser v. Commonwealth Edison Co., 250 F.2d 478

(7th Cir. 1958); Ross-Whitney Corp. v. Smith Kline &

French Laboratories, 207 F.2d 190, 198 (9th Cir. 1953):

7 Moore’s Federal Practice § 65.04[3].

The affidavits attached to the United States’ Complaint

as well as the admission of counsel in open court

establish that the Civil Rights Division of the Department

of Justice with the assistance of the Federal Bureau of

Investigation began investigating the voter registration

procedures in Waller County at least as early as January

of 1976. In March of 1976 a registration drive was

initiated at Prairie View A & M to register students to

vote in time for the May 1 primary elections. The stu-

dents were assisted in their efforts by Secretary of State

Mark White and his staff.’

The primary and run-off elections came and went

without the filing of any suit contesting Walicr County

1. See State of Texas’ Exhibit # 1.

G13

voter registration procedures. Finally, on October 14,

1976, nine months after the Department of Justice's

investigation had been initiated and seven months after

the voter registration drive, the present suit was filed on

behalf of the United States by the Civil Rights Division of

the Department of Justice.

If defendants had been given 20 days to file an answer

or motion as provided for in Rule 12(a), Fed.R.Civ.P.,

issue would not have been joined in this suit until after

election day, since the suit was filed only 19 days before

November 2. Furthermore, even a motion for temporary

relief, such as a preliminary injunction may be heard only

upon adequate notice to the adverse parties. Rule 6(d),

Fed.R.Civ.P., which requires that a motion be served

not later than 5 days before the hearing of the motion,

has been held to be applicable to applications for prelimi-

nary injunctions. See Marshall Durbin Farms, Inc. v.

National Farmers Org., Inc., 446 F.2d 353 (Sth Cir.

1971); Franz v. Franz, 15 F.2d 797, 799 (8th Cir.

1926). In addition, 28 U.S.C. § 2284, which sets forth

the procedures governing three-judge court cases, re-

quires that at least 5 days notice of the hearing of the

suit be given to the governor and attorney general of

the state, if the suit is against a state, as is the case here.

28 U.S.C. § 2284(b)(2). Accordingly, taking October

18, the date of the first in-cchambers conference, as the

date defendants first received notice of the filing of this

suit and the pendency of a motion for a preliminary in-

junction,” the Court could not have heard the Motion for

2. Only one of the defendants, Secretary of State Mark White,

has been served with summons in this case. The other defendants

waived ervice of summons at the in-chambers conference on October

18, 1970.

G14

a Preliminary Injunction and granted the relief sought by

the United States earlier than Octber 26, 1976,° which

wes exactly one week prior to election day.*

Although this suit seeks to have a relatively large class

of individuals registered for purposes of voting in the

November 2 election, it was not even filed until 10 days

after the registration of voters for that election was

closed. The Texas Election Code cuts off registration for

an upcoming election thirty days before the actual date

of the election. Tex. Election Code art. 5.13a (sub-

division 4). Congress has recognized the need of the

States to close registration thirty days before an election

by permitting such a procedure in the Voting Rights

Act of 1965. 42 U.S.C. § 1973aa-1(d). See Dunn v.

Blumstein, 405 U.S. 330, 348 n. 19, 92 S.Ct. 995, 31

L.Ed.2d 274 (1972). Once registration is closed for a

particular election, the county clerk must order the print-

3. In computing the five-day time period, Saturday, Sunday, and

Monday (Veterans Day), October 23-25, were excluded in accordance

with Rule 6(a), Fed. R. Civ. P.

4. Moreover, two of the members of this Three-Judge Court are

also members of a three-judge court considering another case, which

had been set for trial on October 26, 1976 with the trial estimated

to last one week. Both three-judge court cases are entitled to statu-

tory priority on the Court’s docket. 28 U.S.C. § 2284(b)(2). How-

ever, the case set for trial on October 26 has been pending for six

months, unlike the case sub judice. In addition, one of the members

of this Court had a criminal case set for trial on October 28, 1976.

The time limit for the trial of this case under this District’s Speedy

Trial Plan adopted in conformity with the provisions of the Speedy

Trial Act (18 U.S.C. § 3161, et seq.) will expire on October 28, 1976.

Particularly, in view of the lack of diligence on the part of counsel

in filing this suit, the Court is of the opinion that this case is not

entitled to priority over the above cases. Thus, even if the Motion

for a Preliminary Injunction had necessitated an evidentiary hearing,

it is unlikely that the Court could have held the hearing prior to

election day.

G15

ing of a sufficient number of ballots for the registered

voters of the county. In this case, 7,490 ballots have

been printed’ for the 6,919 registered voters of Waller

County,’ leaving a surplus of only 571 ballots. In ad-

dition, the county registrar must prepare for each elec-

tion precinct in the county an updated, alphabetical list

of registered voters. Tex. Election Code art. 5.19a(1).

These duties by local election officials must be completed

before absentee balloting commences, which is twenty

days before election day.

In this case, absentee balloting commenced on October

13, 1976, one day before this suit was filed. Under Texas

law, an election is considered to be in progress once ab-

sentee balloting commences. See Skelton v. Yates, 131

Tex. 509, 119 S.W.2d 91 (1938). Thus, the 1976 gen-

eral election was already in progress when this suit was

filed.

In considering whether the above facts render the

Motion for a Preliminary Injunction moot, the Court

first turns to decisions of the Texas Supreme Court that

have dealt with the issue of mootness in the context of

a pending election. In Sterling v. Ferguson, 122 Tex. 122,

53 S.W.2d 753 (1932), a suit was brought to enjoin the

certification by the Texas Secretary of State of the winner

of the Democratic gubernatorial primary because 50,000

illegal votes had allegedly been cast in the primary elec-

tion. The suit was filed on September 28, only 40 days

before the general election of November 8. The state

district court dismissed the case on October 5 for lack

of jurisdiction. The Texas Supreme Court affirmed, hold-

5. Waller County’s Exhibit # 3.

6. Waller County’s Exhibit # 2.

G16

ing that the district court had jurisdiction of the election

contest but that the suit had become moot by the date

the district court dismissed it. The Court pointed out

that the certificate of the Secretary of State containing

the names of state candidates must reach the county

clerks by October first in order to give those officers

time to perform their statutory election duties, such as

the posting of the names to be printed on the ballot ten

days before the ballots are printed and the printing of

the ballots. The Court then applied the rule that a case

is moot “. . . when any right which might be determined

by the judicial tribunal could not be effectuated in

the manner provided by law.” 53 S.W.2d at 761. The

Court in Sterling interpreted this rule to mean that an

election contest is moot:

when the time comes that a final judgment adjudg-

ing the validity or invalidity of the election certificate

cannot be heard in time for the certificate of the

secretary Oi state to reach the county clerks of the

various counties of the state in time for at least

substantial performance of the duties prescribed by

law for the protection of valuable rights granted

nominees and voters.

53 S.W.2d 760. Hence, the Texas Supreme Court ruled that

the Sterling case was moot. See also, Polk v. Davidson, 145

Tex. 200, 196 S.W.2d 632 (1946); Thomason v. Seale,

122 Tex. 160, 53 S.W.2d 764 (1932).

The federal courts have likewise shown a great re-

luctance to grant any relief that might disrupt the orderly

conduct of an impending election. In Williams v. Rhodes,

393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) the

Supreme Court affirmed the holding of a three-judge

G17

district court that Ohio election laws, which precluded

candidates of the American Independent Party and

Socialist Labor Party from being placed on the ballots,

were unconstitutional. Despite holding in favor of the

plaintiffs, the district court had granted relief only to

the extent of allowing write-in ballots. The Independent

Party immediately sought and obtained from Justice

Stewart, as Circuit Justice, an injunction ordering the

party's condidates to be placed on the ballot pending

appeal. Williams v. Rhodes, 89 S.Ct. 1, 21 L.Ed.2d 69

(1968). Several days later a like motion was filed before

Justice Stewart by the Socialist Labor Party, which was

denied because of the party’s failure to move quickly

to obtain relief. Socialist Labor Party v. Rhodes, 89

S.Ct. 3, 21 L.Ed.2d 72 (1968). The Supreme Court,

after deciding the appeal, adopted the action of Justice

Stewart. With respect to the Socialist Labor Party’s re-

quest to be put on the Ohio ballot, the Supreme Court

stated that:

at this late date it would be extremely difficult, if not

impossible, for Ohio to provide still another set of

ballots. Moreover, the confusion that would attend

such a last-minute change poses a risk of inter-

ference with the rights of other Ohio citizens, for

example, absentee voters.

393 U.S. at 35, 89 S.Ct. at 12. Chief Justice Warren

dissented, arguing that because of the delay in instituting

suit’ neither of the parties should have had their candi-

dates placed on the ballot. 393 U.S. at 64, 89 S.Ct. 5.

See also, Cunningham v. English, 78 S.Ct. 3, 1 L.Ed.2d

13 (1957) (opinion by C. J. Warren as Circuit Justice);

7. The suit was filed in July of 1968. 393 U.S. at 64, 89 S.Ct. 5.

a : a?

G18

Mississippi Freedom Democratic Party v. Democratic

Party, 362 F.2d 60 (Sth Cir. 1966); Garza v. Smith,

320 F.Supp. 131, 139 (W.D. Tex. 1970), vacated on

other grounds, 401 U.S. 1006, 91 S.Ct. 1257, 28 L.Ed.

2d 542 (1971).

Although this case does not involve the placing of an

additional or different candidate on the ballot, the ex-

treme tardiness of the United States in filing this suit

makes it impossible to grant the relief sought without

disregarding Texas registration procedures designed to

protect the purity of the ballot. The relief sought is that

Prairie View A & M students be allowed to apply for

registration to vote in the 1976 general election without

being required to fill out a questionnaire. Since this suit

was not filed until after registration for the 1976 general

election had been closed under state law, that provision

of state law would have to be disregarded.* In addition,

the procedure in the Texas Election Code for challenging

an applicant’s voter qualifications would have to be

abandoned because there would be no time to hear such

challenges.’ The procedures and dealines for preparing

8. See Tex. Election Code art. 5.19a(1). See also Tex. Election

Code art. 5.13a(4).

9. See Tex. Election Code art. 5.17a, which provides in sub-

division (1) that:

[aJny person applying for registration may be challenged by

the registrar or deputy taking his application or by any regis-

tered voter of the county. If after hearing and considering the

challenge the officer taking the application is satisfied as to the

icant’s entitlement to registration, he shall register the ap-

plicant, but if not so satisfied, he shall refuse to register the

applicant. . . . When the registrar refuses to register an applicant,

the applicant may appeal from the decision of the registrar to

a district court of the county within thirty days after the

registrar’s decision, and the decision of the district court shall

be final.

G19

a certified alphabetical list of registered voters for each

election precinct in the county by the county registrar

would have to be substantially modified.*® The registrar

would have to rush out a last-minute updated list with

the attendant opportunity for error. Finally, a substantial

number of additional ballots would have to be printed.

Considering the fact that the United States seeks to have

registered approximately 2,500-3,000 persons in a county

that presently has only 6,919 registered voters, not only

would Texas registration procedures be frustrated, but

it might very well be physically impossible to register

so many individuals in the short time remaining before

election day and then make adequate preparations for

their voting. Accordingly, it is the opinion of the Court

that the Motion for a Preliminary Injunction is moot.

Ballas v. Symm, 351 F.Supp. 876 (S.D. Tex. 1972),

aff'd, 494 F.2d 1167 (Sth Cir. 1974), presented virtually

the same factual situation as here. The Ballas suit was

filed 26 days before election day and six days before

absentee balloting commenced, but five days after regis-

tration nad closed. 351 F.Supp. at 881-82. In Ballas,

which was brought by a private litigant as a class action,

preliminary injunctive relief was requested for the class.

The request was denied as moot because, as in the case

sub judice, the requested relief could not be granted to

the entire class at such a late date. 351 F.Supp. at 880-

882.

In light of the holding in Ballas, the United States

was fully warned as to the probable consequences of

waiting so long to file this suit. The only excuse offered

by counsel is that the Department of Justice was negoti-

10. See Tex. Election Code art. 5.19a.

G20

ating with state officials in the hope that state and local

officials would correct any deprivation of voting rights.

Giving state officials the first opportunity to remedy the

alleged violations may have been a valid reason for

waiting until after the primary elections to take action.

But once the primary elections had been conducted and

the Department of Justice was still dissatisfied with the

situation, suit should immediately have been filed, if the

United States expected to obtain any relief before the

general election in November. Apart from the issue of

mootness, this unreasonable delay in filing suit may be

a sufficient ground by itself to deny preliminary injunc-

tive relief under the doctrine of laches. The Court, how-

ever, need not decide that question since the Motion for

a Preliminary Injunction is clearly moot.

The United States asks the Court to overlook its lack

of diligence in filing suit, disregard Texas registration

procedures, and in effect set itself up as the registrar of

Waller County for purposes of registering students to

vote in an election already in progress. The proposed

justification for this extraordinary relief is that otherwise

a large number of students will be denied their funda-

mental right to vote in the November 2 election. How-

ever, Secretary of State Mark White testified at the pre-

trial hearing that his study of the Texas voter registration

records indicated that approximately half of the resident

students at Prairie View A & M were already registered

to vote in Texas. The depositions of the 16 key student

witnesses for the United States indicates that at least

half of them are registered to vote in Texas."’ These

11. Eight of the students indicated that they were registered to

vote in counties in Texas other than Waller County. Two had

applied for registration to vote elsewhere, but had not yet heard

G21

percentages compare favorably with the percentage of

all citizens of voting age in Texas who are registered

to vote, which according to Secretary of State Mark

White is about 50%. Thus, what is at stake is not the

right to vote per se, but the right to vote in a particular

county without first abiding by the registration procedures

of that county, which have been twice judicially approved.

The United States seeks to have this federal court

precipitously and belatedly intervene in the affairs of

the State of Texas with respect to a twice-litigated voter

registration procedure without adequate notice to defend-

ants, without adequate time for preparation and briefing

by counsel, and without adequate time for consideration

of the issues by the Court. The Court declines the invita-

tion. This suit was simply filed too late for any immediate

relief to be granted and, therefore, the Motion for a

Preliminary Injunction will be denied.”

For the foregoing reasons, it is ORDERED that the

Motion of defendants Symm and Waller County to Dis-

solve Three-Judge Court be, and the same hereby is,

DENIED, and it is further

ORDERED that the Motion of defendants Symm and

Waller County to Dismiss, insofar as it raises the defense

of res judicata, shall be treated as a motion for summary

whether their applications had been accepted. Four indicated that

they were not registered to vote anywhere. The remaining two did

not indicate whether they were registered to vote.

12. Sinc no issue of fact is involved in this denial of a preliminary

injunction, it would appear that findings of fact and conclusions of

law are unnecessary. Douds v. Local 1250, 170 F.2d 695 (2d Cir.

1948). To the extent that the same are required, however, this

Memorandum and Order shall constitute the Court’s findings of fact

and conclusions of law.

oe etm Ce Rt te Fe

G22

judgment and determined in accordance with the pro-

cedures set forth in this Memorandum and Order and

that the Motion to Dismiss in all other respects be, and

the same hereby is DENIED, and it is further

ORDERED that the Motion of defendants Mark White,

John Hill, and the State of Texas be, and the same

hereby is, DENIED, and it is further

ORDERED that the Motion of the United States for

a Preliminary Injunction be, and the same hereby is,

DENIED.”

13. By Order entered on October 29, 1976 the Court announced

its rulings on the pending motions and stated that a memorandum

would follow setting forth the Court’s reasons. This Memorandum

and Order is entered to accomplish that purpose.

AMENDMENT XXVI.—RIGHT TO VOTE;

CITIZENS EIGHTEEN YEARS OF AGE OR OLDER

Section 1. The right of citizens of the United States,

who are eighteen years of age or older, to vote shall not

be denied or abridged by the United States or by any

State on account of age.

Sec. 2. The Congress shall have power to enforce

this article by appropriate legislation.

SUBCHAPTER I-C—REDUCING VOTING AGE TO

EIGHTEEN IN FEDERAL, STATE, AND

LOCAL ELECTIONS

§ 1973bb. Enforcement of Twenty-Sixth Amendment

(a) (1) The Attorney General is directed to institute,

in the name of the United States, such actions against

States or political subdivisions, including actions for in-

junctive relief, as he may determine to be necessary to

implement the twenty-sixth article of amendment to the

Constitution of the United States.

(2) The district courts of the United States shall have

jurisdiction of proceedings instituted under this sub-

chapter, which shall be heard and determined by a court

of three judges in accordance with section 2284 of Title

28, and any appeal shall lie to the Supreme Court. It

shall be the duty of the judges designated to hear the

case to assign the case for hearing and determination

thereof, and to cause the case to be in every way ex-

pedited.

(b) Whoever shall deny or attempt to deny any per:

son of any right secured by the twenty-sixth article of

amendment to the Constitution of the United States shall

be fined not more than $5,000 or imprisoned not more

than five years, or both. |

As amended Pub.L. 94-73, Title IV, § 407, Aug. 6, 1975,

89 Stat. 405.

Art. 1.03. Secretary of State as chief election officer

Subdivision 1. The Secretary of State shall be the

chief election officer of this state, and it shall be his

responsibility to obtain and maintain uniformity in the

application, operation and interpretation of the election

laws. In carrying out this responsibility, he shall cause

to be prepared and distributed to each county judge,

county tax assessor-coltector, and county clerk, and to

each county chairman of a political party which is re-

quired to hold primary elections, detailed and comprehen-

sive written directives and instructions relating to and

based upon the election laws as they apply to elections,

registration of electors and voting procedures which by

law are under the direction and control of each such

respective officer. Such directives and instructions shall

include sample forms of ballots, papers, documents, rec-

ords and other materials and supplies required by such

election laws. He shall assist and advise all election of-

ficers of the state with regard to the application, opera-

tion and interpretation of the election laws.

Subd. 2. At least 35 days before each general election

for state and county officers, the Secretary of State shall

prescribe forms of all blanks necessary under this code

and shall furnish same to each county clerk. The Secre-

tary of State shall at the same time certify to each county

clerk a list of all the candidates who have been nominated

for state and district offices and all other candidates

whose names have been certified to the Secretary of State

to be placed on the general election ballot.

Subd. 3. Upon petition of fifteen or more resident citi-

zens of any one county to the Secretary of State, the

Secretary of State shall, or may at any time upon his

Own initiative, appoint inspectors to observe all functions,

activities, or procedures conducted pursuant to the elec-

tion laws of this State. Any such inspectors shall be sub-

ject to the direction of and responsible to the Secretary

of State and he may terminate any appointment at any

time. Any such inspectors may be present at, observe,

and take reasonable steps to evidence all activities, func-

tions and procedures (except for the marking’ of any

ballot by a voter, unless being assisted by an election

officer) at any polling place, place of canvass, central

counting station, or other place where official election or

registration functions take place. The Secretary of State

or any member of his staff may, upon the initiative of the

Secretary of State alone, whether any violation of election

laws is suspected or not, be present at, observe, and take

reasonable steps to evidence any activities, functions,

and procedures at any polling place, place of canvass,

central counting station, or other place where official

election or registration functions take place. Any in-

spectors appointed under this provision shall report to

the Secretary of State any violations of law observed and

the Secretary of State may refer the violation to the At-

torney General or a prosecuting attorney for appropriate

action.

Amended by Acts 1967, 60th Leg., p. 1860, ch. 723, §

3, eff. Aug. 28, 1967; Subd. 3 added by Acts 1975, 64th

Leg., p. 2074, ch. 681, § 1, eff. June 20, 1975; Subd. 2

amended by Acts 1977, 65th Leg., p. 882, ch. 332, § 1,

eff. Aug. 29, 1977.

Article 5.01 Classes of persons not qualified to vote

The following classes of persons shall not be allowed

to vote in this state:

1. Persons under 18 years of age.

2. Idiots and lunatics.

3. All paupers supported by the county.

4. All persons convicted of any felony except those

restored to full citizenship and right of suffrage or par-

doned.

Amended by Acts 1975, 64th Leg., p. 2082, ch. 682,

§ 3, eff. Sept. 1, 1975.

Art. 5.02 Qualification and requirements for voting

(a) Every person subject to none of the foregoing

disqualifications who is a citizen of the United States and

a resident of this state and is eighteen years of age or

older, and who has complied with the registration require-

ments of this code, is a qualified voter. No person may

vote in an election held by a county, municipality, or

other political subdivision unless he is a resident of the

subdivision on the day of the election; and, except, as ex-

pressly permitted 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.

The provisions of this section, as modified by Section 35

of this code (Article 5.03, Vernon’s Texas Election Code),

apply to all elections, including general, special, and pri-

mary elections, whether held by the state, by a county,

municipality, or other political subdivision of the state,

or by a political party.

(b) All citizens of this state who are otherwise qual-

ified by law to vote at any election of this state or any dis-

trict, county, municipality, or other political subdivision,

shall be entitled and allowed to vote at all such elections.

The Secretary of State shall, by directive, implement the

policies stated herein throughout the elective procedures

and policies by or under authority of this state. Enforce-

ment of any directive of the Secretary of State pursuant

to this section may be by injunction obtained by the

Attorney General.

Amended by Acts 1966, 59th Leg., Ist C.S., p. 1, ch. 1,

§ 1; Acts 1967, 60th Leg., p. 936, ch. 414, § 1, eff. Feb.

1, 1968; Acts 1975, 64th Leg., p. 2076, ch. 681, § 4,

eff. June 20, 1975; Acts 1975, 64th Leg., p. 2082, ch.

682, § 4, eff. Sept. 1, 1975.

Art. 5.08 Rules for determining residence

(a) As used in this code, the word “residence” means

domicile; i.e., one’s home and fixed place of habitation

to which he intends to return after any temporary absence.

(b) For the purpose of voting, residence shall be

determined in accordance with the common law rules as

enunciated by the courts of this state and the following

statutory rules; but in case of a conflict, the statutory

rules shall control.

residence by leaving his home to go to another place for

temporary purposes only.

(d) A person shall not be considered to have gained

a residence in any place to which he has come for tempo-

rary purposes only, without the intention of making such

place his home.

(e) The residence of a single person, or a married

person permanently separated from his or her spouse,

is considered to be where such person usually sleeps at

night, but if it be a temporary establishment, or for a

transcient purpose, it shall not be so considered.

(f) For a married man not permanently separated

from his wife, the place where his family lives shall be

considered his residence, but if it be a temporary estab-

lishment for his family, or for transcient purposes, it shall

not be so considered.

(g) If a married man has his family living in one

place and he does business in another, the former shall

be considered his residence, but when a man has taken

up his abode at any place with the intention of remaining

there and making it his home, and his family refuses to

reside with him, then such place shall be considered his

residence.

(h) The residence of a married woman not perma-

nently separated from her husband is considered to be

the place where her husband has his residence, but a

married woman not living in a household with her

husband may establish a separate voting residence from

that of her husband.

(i) The residence of one who is an officer or em-

ployee of the government of this state or of the United

States shall be construed to be where his home was before

he became such officer or employee unless he has become

a bona fide resident of the place where he is in govern-

ment service or some other place. For the purpose of

this section, teachers and other professional personnel

employed in the public free school system of this state

shall be considered to be employees of the government

of this state.

(j) No person in the military service of the United

States shall acquire a residence in this state while he is

living on a military post in quarters which he is required

to occupy. A person in military service who is permitted

to choose his place of abode shall not be considered to

have acquired a residence merely in consequence of his

presence at the place where he lives while performing his

military duties; and such person shall not be considered

to have acquired a residence unless he intends to remain

there and to make that place his home indefinitely,

both during the remainder of his military service when-

ever military duties do not require his presence else-

where, and after his military service is terminated.

(k) The residence of a student in a school, college, or

university shall be construed to be where his home was

before he became such student unless he has become a

bona fide resident of the place where he is living while

attending school or of some other place. A student shall

not be considered to have acquired a residence at the

place where he lives while attending school unless he

intends to remain there and to make that place his home

indefinitely after he ceases to be a student.

(1) The residence of an inmate of a public eleemosy-

nary institution shall be construed to be where his home

was before he became such inmate unless he has become

a bona fide resident of the place where the institution is

located or of some other place. No person who is an in-

mate of a prison or who is an involuntary inmate of any

hospital or other eleemosynary institution shall acquire

a residence, while he is an inmate, at the place where

the institution is located.

(m) Repealed by Acts 1975, 64th Leg., p. 2098, ch.

682, § 28, eff. Sept. 1, 1975.

Amended by Acts 1967, 60th Leg., p. 1879, ch. 723,

§ 21, eff. Aug. 28, 1967; Subsec. (m) added by Acts

1971, 62nd Leg., p. 2528, ch. 827, § 25, eff. Aug. 30,

1971.

Art. 5.09a Registrar of voters

Subdivision 1. Unless the county commissioners court

makes a different designation as authorized in Section 41b

or Section 56a of this code, the county tax assessor-

coliector of each county in this State is the registrar of

voters in that county.

Subdivision 2. The registrar of voters shall be re-

sponsible for the registration of voters, the keeping of

records, the preparation of lists of registered voters, and

such other duties incident to voter registration as are

placed upon him by law. Any of the duties of the regis-

trar, except the hearing of appeals on denial of registra-

tion and the hearing of challenges of registration, may

be performed through a deputy or deputies. The registrar

shall not make any charge against a voter for performing

any duty incident to voter registration unless expressly

authorized by law to do so. The registrar is authorized

to administer oaths and certify thereto under the seal of

his office in every case where an oath is required in

complying with any portion of this code connected with

his official duties. The registration records, the applica-

tions for registration, and the duplicate registration cer-

tificates on file in the registrar’s office shall be open for

public inspection at all times when the office is open.

Sudivision 3. The expenses of the registrar in excess

of the reimbursements received from the state under

Section Sib of this code (Article 5.19b, Vernon’s

Texas Election Code) shall be borne by the county.

Amended by Acts 1977, 65th Leg., p. 1497, ch. 609,

§ 1, eff. Aug. 29, 1977.

Art. 5.10a Persons entitled to register

A person is entitled to register as a voter in the pre-

cinct in which he has his legal residence (i.e., domicile),

as defined in Section 40 of this code (Article 5.08,

Vernon’s Texas Election Code), if:

(1) on the date of applying for registration he is a

citizen of the United States and is subject to none of the

disqualifications, other than nonage, stated in Section

33 of this code (Article 5.01, Vernon’s Texas Election

Code); and

(2) within 60 days after applying for registration he

will be 18 years of age or older.

However, no person may vote at any election unless

he fulfills all the qualifications of an elector for that

election.

Amended by Acts 1971, 62nd Leg., p. 2509, ch. 827,

§ 2, eff. Aug. 30, 1971; Acts 1975, 64th Leg., p. 750,

ch. 296, § 1, eff. May 27, 1975.

Art. 5.17a Challenge of registration; appeal

(1) Challenge of applicant. Any person applying for

registration may be challenged by the registrar or deputy

taking his application or by any registered voter of the

county. If after hearing and considering the challenge the

officer taking the application is satisfied as to the appli-

cant’s entitlement to registration, he shall register the

applicant, but if not so satisfied, he shall refuse to register

the applicant. If refusal has been by a deputy registrar,

the applicant may appeal to the registrar, who shall de-

cide the challenge within seven days. When the registrar

refuses to register an applicant, the applicant may appeal

from the decision of the registrar to a district court of

the county within thirty days after the registrar’s decision,

and the decision of the district court shall be final.

(2) Challenge of registered voter. Any registered voter

shall have the right to challenge the registration of any

other registered voter in his county by filing with the

registrar of voters a sworn statement setting out the

grounds for such challenge. The registrar shall give notive

to the person whose registration has been challenged,

and a hearing shall be held and a ruling made thereon.

Either party to the controversy may appeal from the de-

cision of the registrar to a district court of the county of

registration within thirty days after the registrar’s de-

cision, and the decision of the district court shall be final.

A challenged voter may continue to vote until a final

decision is made canceling his registration.

(3) Jurisdiction of district court; trial of appeal. The

district courts of this State shall have jurisdiction to

hear and determine appeals from decisions of the regis-

trar refusing an application for registration and from de-

cisions of the registrar either canceling or refusing to can-

cel a registration. The trial in the district court shall be

de novo. The court shall give priority to the appeal if an

election is pending within sixty days. Acts 1951, 52nd

Leg., p. 1097, ch. 492, art. 49a, added Acts 1966, 59*1

Leg., Ist C.S., p. 1, ch. 1, § 2.

Art. 5.18a Change of residence; cancellation or transfer

of registration

Subdivision 1. Change of resident within precinct. A

registered voter who changes iis place of residence with-

in the election precinct shall give written notice to the

registrar of the change of address and obtain a corrected

certificate as provided in Subdivision 1 of Section 48a of

this code (Article 5.16a, Vernon’s Texas Election Code).

Subdivision 2. Change of resident to another precinct

within county. A registered voter who changes his resi-

dence to another election precinct within the county may

vote a full ballot in the precinct of his former residence,

if otherwise qualified, during the first 90 days after the

removal, but not thereafter, in any election in which there

is listed on the ballot any office or proposition on which

he is eligible to vote at his new residence.

If he obtains a transfer of his registration to the pre-

cinct of his new residence during the 90-day period, he may

vote only in the precinct of his new residence after the 29th

day following the transfer. He may not vote in the precinct

of his new residence before the 30th day following the

transfer.

To obtain a transfer of his registration, the voter shall

present the registrar with a written, signed request that

his registration be transferred to the precinct of his new

residence. Upon receiving a request for transfer, the regis-

trar shall make the necessary changes on the registration

records in his office and shall issue a new corrected regis-

tration certificate to the voter. He shall attach the request

to the registrant’s original application.

Subdivision 3. Change of residence to another county.

(a) A registered voter who moves from one county to

another within the State must reregister in the county of

his new residence in the same manner as an initial regis-

trant. However, during the first 90 days after removal

the voter may vot

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