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

’ — Court, .

ILED

4

ti SEP 28 1978

No. 77-1688

eet. 008K, cue

In the Supreme Court of the United States

OCTOBER TERM, 1978

Le roy SYMM, APPELLANT

Vv.

UNITED STATES OF AMERICA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF TEXAS

MOTION TO AFFIRM

Wape H. McCree, Jr.

Solicitor General

Drew S. Days, Ill

Assistant Attorney General

WALTER W. BARNETT

JoHN C. HOYLE

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

Tv cccsctnescncsccsecccsccccccccccescoccceesees |

oss scnsesencrccccoosccoosoocos |

a acc cccssncssscsscscocsesoscesceccscocoees 2

ssc cca secccnaseccvcccesoccscccccoooces 2

III tise eltiaclndnsssccrecccesscoccccccccccscceccscccccoe ess 7

ss ccsecsmnccnscccccccs 13

CITATIONS

Cases:

Ballas v. Symm, 351 F. Supp. 876, affirmed,

a cnccacacccncccccceccoococeees 5, 9,

Bishop v. Wood, 426 U.S. 341 ....ccccccccsseseeeeeneees s

Bright v. Baesler, 336 F. Supp. 527 .............00++. 10

Carrington v. Rash, 380 U.S. 89 ........ccccccccceeeeeees q

Dunn v. Blumstein, 405 U.S. 330 ...........000000 9, 10

Evans v. Corman, 398 U.S. 419 .......cccccccceceeeees 11

Frazier v. Callicutt, 383 F. Supp. 15. .......... 10, 12

Gomillion v. Lightfoot, 364 U.S. 339 .......... 11, 12

Herb v. Pitcairn, 324 U.S. V7 coccccccccccccceeeeeeeeeeees 8

Jankovich v. Indiana Toll Road

Commission, 379 U.S. 487 .......ccccccccccceeeeeeeeeees 8

Kramer v. Union Free School District

I cscs cnccscnscccccccssoccececceeees 11

Mills v. Bartlett, 377 S.W. 2d 636 ......ccccccccceeeeees 8

Minnesota v. National Tea Co.,

ST 8

“*

Page

Cases —continued:

Missouri ex rel. Gaines v. Canada,

SD We GY secnwidsmttecientiteinmanintiidednaidabiidiadiie 11

Foagaar ¢. Gah, Bae Dita: Ge concise 8

Runyon v. McCrary, 427 U.S. 160 ......ccccccccceee 8

Sam Fox Publishing Co. v. United States,

SOD GE, GD cceminniicwcitncininctanitdiiaieinaitiels 13

Sloane v. Smith, 351 F. Supp. 1299 ................ 10

Shivelhood v. Davis, 336 F. Supp III .............. 11

Whatley v. Clark, 482 F. 2d 1230, cer-

tiorari denied, 415 U.S. 934 oo... ccceceeseeeeees 5,

Wilkins v. Bentley, 385 Mich. 670,

SU? Das a “Ge GUE. -cenisinninecdinierttiemntaineiiedias 11

Williams v. Rhodes, 393 U.S. 23 coccccccccccccceeseees II

Wiison v. Symm, 341 F. Supp. 8 .........ccccccccceeeees 5

Worden v. Mercer County Board of

Elections, 61 N.J. 325, 294 A. 2d 233 00.0.0... 11

Constitution and Statutes:

United States Constitution:

Fourteenth Amendment ....................c00000000+ 5, 11

Fifteenth Amendment ....................cccc0eeeeees 5, 12

Twenty-Sixth Amendment ..................0000000. 5, Il

SB VBA... GEV sncncdacsivisinstasiabinteabieiai 5

42 U.S.C. 1971(a)(2)(A)

42 U.S.C. 1973

ill

Page

Constitution and Statutes—continued:

V.A.T.S. Election Code (Cum. Supp.

1977):

es BD vistitncientalbtindituisetntirtntnsinamtnnnevan 4

Bee TD siiccntnstciicinttinnntiniecesccnaeseninmanins 9

Se TD cictitinsstieiesdnnssansasnctsinioniainiineanets 13

Pe BE cleccennnactensitsensnnssetsscsireneseeneniens 3

BR GI. cetiittnatisctemnccenincentnnsencetinniininnieane 3

Palin SBT cececcccsscccescesesccccescccesccessnessscoete 4

gS ee 3, 9

Miscellaneous:

Guido, Student Voting and Residency

Qualifications: The Aftermath

of the Twenty-Sixth Amendment,

47 N.Y.U. L. Rev. 32 (1972) ......ccccccececeeeeeeeees 12

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 77-1688

Le roy SYMM, APPELLANT

V.

UNITED STATES OF AMERICA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF TEXAS

MOTION TO AFFIRM

Pursuant to Rule 16(1)(c) of the Rules of this Court,

the United States moves that the judgment of the district

court be affirmed.

OPINION BELOW

The opinion of the district court (J.S. App. C) is re-

ported at 445 F. Supp. 1254.

JURISDICTION

The judgment of the three-judge district court was

entered on March 3, 1978 (J.S. App. B). Notice of appeal

was filed on March 27, 1978 (J.S. App. A), and the

jurisdictional statement was filed on May 26, 1978. The

jurisdiction of this Court is invoked under 28 U.S.C. 1253

and 42 U.S.C. 1973bb.

(1)

ty

QUESTION PRESENTED

Whether the means used to determine the voting

eligibility of students living on a college campus in Waller

County, Texas, denied the students the right to vote on an

equal basis with other citizens.

STATEMENT

|. This case involves a challenge to one aspect of the

voter registration practices employed in Waller County,

Texas. Waller County, a small rural county west of

Houston, has a population of approximately 15,000, a

slight majority of which is black. Prairie View A & M

University, a state-supported, predominantly black

university, is located in Waller County. The dispute that

gave rise to this case concerned the eligibility of students

at the university to vote in Waller County on the same

terms as non-students.

Appellant, the Tax Assessor-Collector of Waller

County, is responsible for registering voters in the county.

It is his practice ordinarily to refuse to permit unmarried

students living in the dormitories of Prairie View A & M

to register to vote, unless they prove to his satisfaction

that they are permanent residents of the county (J.S. App.

C16).

Appellant puts this practice into effect by using a

special questionnaire that he has devised to determine

whether students at Prairie View who attempt to register

to vote have met his standards of residency in Waller

County. The questionnaire, which is sent only to Prairie

View students or to persons with addresses on the campus

(J.S. App. C19-C20), inquires whether the prospective

voter is a student, whether he intends to reside in Waller

County indefinitely, what he plans to do after college,

whether he has a job in Waller County, and where he lives

when college is not in session (J.S. App. C43). Very few

students have succeeded in registering to vote after having

been sent appellant’s questionnaire. Appellant sent his

questionnaire to 545 persons from Prairie View who ap-

plied to register in 1976. Only 35 were ultimately regis-

tered to vote—25 on the basis of their responses to the

questionnaire, and another 10 after a hearing (J.S. App.

C16-C17). In registering nonstudents in Wailer County,

appellant does not use his questionnaire, but instead

registers voters on the basis of tax roll records and the

asserted personal knowledge of appellant and his deputies

regarding the prospective voter's qualifications (J.S. App.

C15).!

2. Although appellant is responsible under Texas law

for registering voters in the county (V.A.T.S. Election

Code (Cum. Supp. 1977), Article 5.09a), the Secretary

of State is the chief election officer of the State (id,

Article 1.03). The Texas Election Code provides that

the Secretary of State “shall prescribe the application

form” for voter registration and that the “registrar in

each county shall accept any application made upon

any form prescribed by the Secretary of State which

supplies all the necessary information for registration”

(id., Article 5.13a). Included in the information that must

be provided on the registration form is a statement

'The district court noted that of the persons registered on the basis

of asserted personal knowledge, many appeared not to know

appellant and not to know how he could have knowledge of their

residence. In addition, the court noted that appellant and his deputies

had been unable to state, with reference to a large number of persons

who had been registered on the basis of claimed personal knowledge,

that they had any personal knowledge concerning the residence of

those persons (J.S. App. C19).

that the applicant is a resident of the county in which

he seeks to vote (id., Article 5.13b(6). The Code further

provides (id., Article 5.02) that 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. En-

forcement of any directive of the Secretary of State

pursuant to this section may be by injunction

obtained by the Attorney General.

In September 1977, the Secretary of State issued a

directive, entitled Emergency Rule 004.30.05.313, which

prohibited registrars from using any questionnaire or

requiring any additional information from an applicant

who has properly completed a state voter registration

application (J.S. App. C13). Appellant disregarded the

Secretary of State’s directive, however, and continued

to use his own questionnaire, which requires additional

information beyond that required on the official state

registration application (J.S. App. CIS to C18). By

using his special questionnaire, appellant thus continued

to apply a far more stringent test for residency than

is used in any of the 253 other counties in Texas,

including the 70 counties that contain other institutions of

higher education (J.S. App. Cll-C1l2; see Motion to

Dismiss or Affirm of the State of Texas, p. 2).?

Appellant has devised his questionnaire and his voter

registration practices in reliance on a provision in the

Texas Election Code that students are presumed not to be

residents of the county where they attend college. That

*Appellant began applying these more stringent standards in 1966,

when a significant number of students from Prairie View A & M

began to try to register to vote in Waller County (J.S. App. C14).

\

presumption, however, was declared invalid in Whatley v.

Clark, 482 F. 2d 1230 (C.A. 5), certiorari denied, 415 U.S.

934, and the State of Texas does not rely on the

presumption. Instead, the State has taken the position

that students should be entitled to vote where they

consider themselves to be residents, even if that is the

county where they attend school rather than the county

where their parents reside (Motion to Dismiss or Affirm

of the State of Texas, p. 2).

In giving effect to the presumption against residency for

students, appellant has taken the position (J.S. App. C16)

that generally students are not regarded by him as

residents unless they do something to qualify as

permanent residents, such as marrying 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 residence, only as

a place with a refrigerator, stove and furniture.[*]

3. The Attorney General filed this action on October

14, 1976, seeking injunctive and declaratory relief on the

ground that appellant’s voter registration practices

violated 42 U.S.C. 197I(a), 1973, 1973bb, and the

Fourteenth, Fifteenth, and Twenty-Sixth Amendments.‘

The State of Texas, the Texas Secretary of State, and the

3Appellant has two general exceptions to his refusal to register

students who live in the Prairie View dormitories. He routinely

registers students whose parents live in Waller County and married

students, if both live in Waller County (J.S. App. C18).

‘This is the third suit seeking to enjoin some aspect of appellant's

voter registration practices. See Wilson v. Symm, 341 F. Supp. 8

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

494 F. 2d 1167 (C.A. 5).

Texas Attorney General, all named as defendants, cross-

claimed against appellant, asserting that Emergency Rule

004.30.05.313 prohibits the use of appellant's

questionnaires. They sought an injunction prohibiting

appellant from continuing to use the questionnaire

contrary to the directions of that rule (J.S. App. C8).

Appellant then cross-claimed against the Texas

defendants, seeking a declaratory judgment that the

Secretary of State had no authority under state law to

issue the Emergency Rule or to prohibit his using the

questionnaire. In March 1977, the three-judge district

court abstained (J.S. App. FI-F22), in order to allow

state law issues to be decided in state courts. The court of

appeals reversed the abstention decision (J.S. App. D),

and the case proceeded to trial.‘

The district court held that appellant's practices

violated both Texas law and certain federal con-

stitutional and statutory guarantees of equal voting

rights (J.S. App. C31-C38, C21-C30, C38-C4l1). It

entered an injunction that, inter alia, required that

college students of Waller County be permitted to

register and vote “on the same basis and by application

of the same standards and procedures as non-students

***" (J.S. App. Bl); prohibited appellant from apply-

ing a presumption that college students are not residents

of the county in which they attend school (J.S. App.

B2-B3); prohibited appellant from using his special

questionnaire; and ordered him to “register students on

the basis of the information contained in the state-

approved registration form, as is done elsewhere in

_ ‘Appellant does not challenge the ruling that abstention was

improper.

Texas,” unless he had “tangible, recordable evidence”

that a particular applicant was not a bona fide resident

of Waller County (J.S. App. B3).°

ARGUMENT

The district court properly held that appellant’s voter

registration practices impermissibly abridged the voting

rights of a large number of black students attending

college in Waller County. Notwithstanding appellant's

efforts to paint the issue’ presented in this case broadly,

the issue is in fact very narrow. The decision below affects

voter registration practices in only one of the 254 counties

in Texas. Moreover, the court did not strike down any

State or local statute or ordinance; in fact, it upheld the

construction of Texas law under which the Texas

Attorney General contended that appellant’s voter

registration practices were unlawful. Nor did the court

hold that appellant would have to give any special

consideration to students at Prairie View A & M in the

course of voter registration. Quite the contrary, the court

held that appellant must consider the Prairie View

students’ applications on the same basis that he considers

other prospective voters’ applications, and on the same

basis that is provided under Texas law for considering

registration applications throughout the State. Finally,

appellant has now conceded that the key provision of the

district court’s order—the prohibition against appellant's

use of the statutory presumption that students are not

‘Because the state defendants had in effect joined the United

States as plaintiffs in arguing that appellant's practices were

unlawful, the court found it unnecessary to grant any relief

against the Texas defendants (J.S. App. C41-C42). The court also

denied the relief sought by appellant against the Texas Secretary

of State and Attorney General (J.S. App. BS).

residents of the counties in which they attend

college—was properly entered by the district court (J.S.

22).

1. The district court’s order is based in substantial part

on state law. Accordingly, even if this Court were to

determine that the district court misapplied federal

statutory and constitutional principles applicable to

voting rights, the judgment would still be supported by an

adequate and independent state ground. Cf. Herb v.

Pitcairn, 324 U.S. 117; Minnesota v. National Tea Co.,

309 U.S. 551; Jankovich v. Indiana Toll Road

Commission, 379 U.S. 487. To be sure, the state ground

was set forth by a federal rather than a state court, but

that ground was and is supported by the State’s Attorney

General and its chief election officer, and it was upheld by

a local three-judge court familiar with the State’s laws and

practices. See Runyon v. McCrary, 427 U.S. 160, 181-182;

Bishop v. Wood, 426 U.S. 341, 346 and n. 10; Propper v.

Clark, 337 U.S. 472, 486-487.

Contrary to appellant’s contention (J.S. 24-28), we

agree with the State appellees that the decision below

“reinforced the Texas law” (Motion to Dismiss or Affirm

of the State of Texas, p. 8). First, under Texas law, a

person is not required to prove that he intends to remain

in a location permanently or for any particular length of

time in order to establish residency (J.S. App. C31-C34).’

Appellant departs from this standard by requiring

students to show that they expect ro reside in Waller

"In Mills v. Barlett, 377 S.W. 2d 636, 637, the Texas Supreme

Court wrote:

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 * * *.

County for a particular length of time, ie., for some

period after they finish college.

Appellant’s use of his special questionnaire was also

contrary to Texas law because it was in direct violation of

the Secretary of State’s directive that no such special

applications were to be used in registering voters in the

State. The district court properly rejected appellant's

contention that the Secretary had no authority under

State law to issue that directive (J.S. App. C36-C37).

As noted above, the Texas Election Code makes the

Secretary of State the chief election officer of the State,

with the statutory responsibility “to obtain and maintain

uniformity in the application, operation, and

interpretation of the election laws” (Texas Election Code,

Article 1.03). In carrying out that responsibility, the

Secretary of State is instructed to “cause to be prepared

and distributed to each county judge, county tax assessor-

collector *** detailed and comprehensive written

directives and instructions relating to and based upon the

election laws as they apply to elections * * *” (ibid.).

Moreover, the Secretary of State is instructed to

implement the state policies governing registration and

voting by directive, and the State Attorney General is

authorized to enforce those directives by injunction, if

necessary (Texas Election Code, Article 5.02(b)). The

Texas Election Code was amended in 1975 to give the

Secretary of State these supervisory powers, apparently to

address the problem of appellant's registration practices

(see J.S. App. C36), and in response to contrary language

in the opinion in Ballas v. Symm, supra, 351 F. Supp. at

888, interpreting the previous statute. Accordingly, the

district court was clearly correct in holding that under

state law, appellant’s registration practices were improper.

2. As the district court further held, appellant's voter

registration practices violate federal law as wel.

10

A state may require that applicants be bona fide

residents of the state or appropriate political subdivision

in order to register to vote. See, e.g., Dunn v. Blumstein,

405 U.S. 330, 351; Carrington v. Rash, 380 U.S. 89, 96.

But in this case, appellant has singled out a particular

group—students living on the campus of Prairie View A

& M University—and has placed an extra burden on them

that he does not impose on non-students—one that is

placed on no other prospective voters in the state. Such a

practice violates the Equal Protection Clause by denying a

particular group of citizens the right “to participate in

elections on an equal basis with other citizens in the

jurisdiction.” Dunn v. Blumstein, supra, 405 U.S. at 336;

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

v. Smith, 351 F. Supp. 1299 (M.D. Pa.); Bright v. Baesler,

336 F. Supp. 527 (E.D. Ky.).*

The evidence overhelmingly supports the district court’s

finding that appellant’s practices discriminated against

students at Prairie View. Appeilant insisted that college

students and those with campus addresses complete his

questionnaire; he required students to show an

expectation of permanent residency in Waller County

(J.S. App. C16); and he did not apply similar standards

to non-students (J.S. App. C19).

The basis for these discriminatory practices, appellant

admitted, was to enforce the statutory presumption

against student non-residency. Yet appellant has now

abandoned his objection to the portion of the injunction

barring him from applying that presumption, and he has

*The class of citizens disfranchised by appellant's practices was, of

course, distinctive not only because it was almost entirely composed

of students, but also because it was largely composed of persons

between the ages of 18 and 21, and because it was entirely black.

conceded that “under the present case law” (J.S. 22) that

presumption is unconstitutional. Nonetheless, appellant

seeks to avoid the effect of his own admission that his

voter registration system was designed to implement the

presumption of student non-residency (J.S. App. C14,

C16) by arguing that “an examination of the facts and

circumstances clarifies what Symm is actually doing, and

there is much more involved than a simple presumption”

(J.S. 22). The district court, however, specifically found

that appellant was applying the presumption (J.S. App.

C14, C19-C20), and appellant's effort to pus a different

face on his conduct is contrary to the district court's well

supported findings. As the court of appeals held in

Whatley v. Clark, supra, and as appellant now apparently

concedes, the presumption of student non-residency

serves no compelling governmental interest.’ Appellant's

practices thus cannot survive the careful and meticulous

scrutiny to which exclusionary voting practices must be

subjected under the Equal Protection Clause, Kramer v.

Union Free School District No. 15, 395 U.S. 621, 626; see

also Evans v. Cornman, 398 U.S. 419, 422; Williams v.

Rhodes, 393 U.S. 23, 31." Moreover, since appellant's

*Other courts have similarly concluded that presumptions of

student non-residency do not further compelling governmental

interests and thus do not satisfy the demands of the Equal Protection

Clause. See Shivelhood v. Davis, 336 F. Supp. 1111 (D. Vt.); Wilkins

v. Bentley, 385 Mich. 670, 189 N.W. 2d 423; Worden v. Mercer

County Board of Elections, 61 N.J. 325, 294 A. 2d 233.

© Appellant's contention (J.S. 6) that no one is denied the right to

vote, but that certain persons are merely required to vote elsewher.

does not lessen the discriminatory nature of appellant's practices.

Carrington v. Rash, supra, Evans v. Cornman, supra. The County,

like the State itself, is constitutionally obligated to afford equal

protection of the laws “within its borders * * *.” Missouri ex rel.

Gaines v. Canada, 30S U.S. 337, 351. See also, Gemillion v.

Lightfoot, 364 U.S. 339, 349 (Whittaker, J., concurring) (segregation

of citizens by race into separate voting jurisdictions violates the Equal

Protection Clause of the Fourteenth Amendment).

12

practices were directed at a group having a high

concentration of persons in the 18 to 21 age group (see

J.S. App. C11), those practices offend interests implicated

by the Twenty-Sixth Amendment as well as the Equal

Protection Clause. See Worden v. Mercer County Board

of Elections, supra. Fifteenth Amendment interests also

are implicated, since the group subjected to disparate

treatment is racially defined. Cf. Gomillion v. Lightfoot,

364 U.S. 339.

Appellant’s practices also violate 42 U.S.C.

1971(a)(2A), the statutory guarantee of equal voting

rights. That statute provides that no state or local official

may “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.” The district court's finding that appellant applied a

different standard for determining residency to the

students at Prairie View from the standard applied to

other Waller County citizens falls directly within the

prohibition of this provision. The language and legislative

history of the statute indicate that discrimination on

nonracial as well as racial grounds is prohibited. See

Guido, Student Voting and Residency Qualifications: The

Aftermath of the Twenty-Sixth Amendment, 47 N.Y.U.

L. Rev. 32, 53-57 (1972). In this case, however, a violation

of the statute is established under either construction,

since all the persons subjected to appellant's questionnaire

procedure were black. See Frazier v. Callicut, 383 F.

Supp. 15 (N.D. Miss.).

4. Finally, appellant argues (J.S. 32-42) that this case

should have been governed by the decisions in his favor in

13

the two previous challenges to his voter registration

practices, Wilson v. Symm, supra, and Ballas v. Symm,

supra. As the district court observed, however, those cases

are not controlling here. In Wilson, the district court held

that appellant’s use of his questionnaire was a reasonable

means of enforcing the statutory presumption of student

non-residency in Article 5.08(k) of the Texas Election

Code. After the decision, the Fifth Circuit held the

presumption invalid in Whatley v. Clark, supra, thus

depriving the Wilson case of any precedential value. In

Ballas, the court held simply that the use of a

questionnaire to determine residency did not violate the

Constitution, in light of the court's finding that there was

no proof that the questionnaire was used as a device to

prevent legal residents from voting.

Since the government was not in privity with the

private plaintiffs in either Wilson or Ballas, those

decisions are not binding on the United States, which

has independent authority to sue to prohibit violations

of individuals’ civil rights. Cf. Sam Fox Publishing Co.

v. Uniind States, 366 U.S. 683.

14

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted.

Wape H. McCree, Jr.

Solicitor General

Drew S. Days, Ill

Assistant Attorney General

WALTER W. BARNETT

Joun C. HOYLE

Altorneys

SEPTEMBER 1978

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