Petition — Uvalde Consolidated Independent School District v. United States

8 QO 7 ] 2 3 @ Ottice. Supreme Court, U.S.

ee mBiL ED

ee 1981

NO. ALEXAND=

Supreme Court of the United States

OCTOBER TERM, 1980

UVALDE CONSOLIDATED INDEPENDENT

SCHOOL DISTRICT, ET AL.,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

JEFFREY A. DAVIS

REYNOLDS, ALLEN, COOK,

PANNILL & HOOPER

Incorporated

16th Floor, 1100 Milam Bldg.

Houston, Texas 77002

(713) 651-1300

Attorneys for Petitioners

Of Counsel:

JEFFREY L. ROGERS

SWE RAT STOR UES AN

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

ae

I

QUESTIONS PRESENTED

(1) Does a Complaint alleging dilution of the voting

rights of Mexican-Americans, as a result of the at-large

election of the members of a school board, state a claim

under Section 2 of the Voting Rights Act, as amended,

42 U.S.C. § 1973 (Supp. V 1975).

(2) Is the Board of Trustees of an independent school

district in Texas a state or political subdivision within

the scope of Section 2 of the Voting Rights Act, as

amended, 42 U.S.C. § 1973 (Supp. V 1975).

PARTIES BELOW

The Plaintiff in this case is the United States, by and

through the Department of Justice.

The Defendants are the Uvalde Consolidated Inde-

pendent School District, and the Board members of the

Uvalde Consolidated Independent School District, Cecil

Arnim, Jr., President; Billie Bailey, Vice President;

Robert L. Jacobs, Secretary; J. A. Lanning, Jr., Member:

Dean P. Dimmitt, Member; Dan Davis, Member; and

Tommy Morriss, Member.

II

TABLE OF CONTENTS

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SEMEN. OF FURESIICIOIN on. c ce iscecess

CONSTITUTIONAL AND STATUTORY PROVISIONS

sj oe te le ay) ee! ren rere

REASON FOR GRANTING THE WRIT ............

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Appendices

Appendix A—Opinion of the Sth Circuit ..............

Appendix B—Final Judgment and Order Overruling Petition

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Appendix C—U.S. Constitution, Amendment XIV ........

Appendix D—U:.S. Constitution, Amendment XV ........

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Page

D-1

E-1

ITI

TABLE OF AUTHORITIES

CASES Page

Beer v. United States, 425 U.S. 130 SUPE cahackounzens. 6

City of Mobile v. Bolden, US. , 100 S.Ct. 1490

PRN a ee ne ee eS tee 4,6,7,8,9,11

City of Rome v. United States, US. , 100 S.Ct,

i I gn EE so ie hs FON PAL Os 14,15

Dougherty County, Georgia Board of Education v. White,

ae se i a ek ee 5,14

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

NI ener ata e Oat tT ama ean naw at Re EL 12

State of South Carolina v. Katzenbach, 383 U.S. 301

NE eal cet od neater cue a teh Tet 5

United States v. Board of Commissioners of Sheffield, Ala-

SP Re RO CIPO, ov oo eos Bi vers kee 14,15

White v. Regester, 412 U.S. 755 Ut) Se ee 10

Zimmer v. McKeithen, 485 F.2d 1297 (Sth Cir. 1973) .. 12

I kik so ey BAK dco 't 000 ok ak eeen. 2,4,9, 11

ete incest Ee Re PO) ene a enn 2,6, 11

STATUTES

Tex. Elect. Code Ann., art. 5.09a (Vernon Supp. 1980) ... 13

42 US.C. 1973 (§2) (Supp. V 1975) ............000. passim

wile RE SRO! * NGRCADORTS eM iE cg nai oli nano eee 5,10, 14

42 US.C. 19730(c)(2)-(14(c)(2)) occ cccccccccccce 4,5, 13,14, 15

WE. Mes RMEMETIAEE es ovo ake vali beeen). 9

i i OR kt a BET |) RR a ne eee 12

fa ci es Bd Lit |) agent eens 2 Gog een patio Bi dee 14

tt ee es |) Se a a 10

H.R. Rep. No. 439, 89th Cong., Ist Sess. | | Saad ae 10

U.S. Code Cong. & Ad. News 1965, pp. 2437 et Sa 10

S. Rep. No. 94-295, 94th Cong., Ist Sess., p. 24 (1975) .. 10

U.S. Code Cong. & Ad. News 1975, p. 790 ............. 10, 11

NO.

Supreme Court of the Mnited States

OCTOBER TERM, 1980

UVALDE CONSOLIDATED INDEPENDENT

SCHOOL DISTRICT, ET AL..,

Petitioners,

v

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion of the district court in the case of United

States v. Uvalde Consolidated Independent School Dis-

trict, is reported at 461 F. Supp. 117 (W.D. Texas

1978). The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 625 F.2d 547 (Sth

Cir. 1980).

STATEMENT OF JURISDICTION

The Judgment of the United States Court of Appeals

for the Fifth Circuit was entered on September 2, 1980.

See Appendix B. Petitioners’ Motions for Rehearing and

Rehearing En Banc were overruled on October 9, 1980.

2

See Appendix B. The Petition for Certiorari was filed less

than ninety (90) days from the latter date. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254(1)

(1970).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Amendment XIV

(Equal Protection).

Constitution of the United States, Amendment XV.

The Voting Rights Act of 1965, as amended, § 2, 42

U.S.C. § 1973 (Supp. V 1975).

STATEMENT OF THE CASE

This action, based upon Section 2 of the Voting Rights

Act (hereinafter cited as the “Act”), was brought by the

Attorney General on behalf of the United States, seeking

declaratory and injunctive relief against the at-large system

of selecting school board members in the Uvalde Consoli-

dated Independent School District. Petitioners filed a

Motion to Dismiss for Failure to State a Claim upon

Which Relief Can Be Granted which was granted in

October, 1978 without prejudice. After the Attorney

General filed an Amended Complaint Petitioners success-

fully moved for the dismissal of the Amended Complaint.

The United States appealed to the Court of Appeals

for the Fifth Circuit which, on September 2, 1980, re-

versed the judgment of the district court, and held that

the Amended Complaint, alleging that the continued use

of an at-large system for electing members of the Board

of Trustees of the Uvalde Consolidated Independent

School District violated Section 2 of the Voting Rights

Act, stated a claim upon which relief could be granted.

3

In its Amended Complaint, the United States al-

leged that: the Uvalde Consolidated Independent School

District is governed by a seven-member board of trustees

elected at-large; candidates run for numbered positions;

Mexican-Americans constitute approximately fifty (50% )

percent of the population of the school district; under

the current at-large system, Mexican-Americans have

lost every election with the exception of one;’ the

school board has discriminated against Mexican-Ameri-

cans in the past by operating an intentionally segregated

school system at the elementary level; the Board of

Trustees is unresponsive to the needs and desires of

the Mexican-American community, voting in elections

for school board members proceeds along racial lines;

Mexican-Americans are concentrated in one geographi-

cal area of the City of Uvalde; as a result of the at-

large system, Mexican-Americans have less opportun-

ity than white residents to participate in the political

process and elect members of the board; and, the at-large

system has been implemented with the intent and purpose

of causing, has caused and is causing irreparable injury

to Mexican-American voters by denying them, in effect,

meaningful access to the political process and by frustrat-

ing their right to a full, unabridged and undiluted vote.

The court of appeals held that a cause of action was

stated under Section 2 of the Act even though the com-

plaint in this case was not against practices that directly

affect access to the ballot because, the court decided,

the United States alleged that Petitioners implemented

the at-large system of election with the purpose of caus-

1. As the Court below noted, the United States now stipulates that

two Mexic-n-Americans have recently been elected. 625 F.2d at 549

n.2.

4

ing injury to Mexican-American voters by denying them

meaningful access to the political process and by

frustrating their right to a full, undiluted vote. The

court of appeals reasoned that a majority of this Court

in City of Mobile v. Bolden, ___U:S. ; soe me SX,

1490 (1980) decided, in effect, that the fifteenth amend-

ment prohibits purposefully discriminatory voting schemes

625 F.2d at 552. The court of appeals so reasoned

even though a plurality of this Court decided that the

fifteenth amendment reaches only practices that directly

affect access to the ballot and that that amendment is

not violated when minorities register and vote without

hindrance. See 625 F.2d at 551.

As further support for its conclusion, the court of

appeals decided that the fourteenth amendment is

broader than the fifteenth and that it is well established

that purposefully discriminatory at-large systems of elec-

tion violate the fourteenth amendment rights of minor-

ities. Therefore, when Congress amended Section 2 of the

Act it did so fully cognizant of at-large dilution in Texas

school board elections and intended to incorporate the

broad reach of the fourteenth amendment into Section 2

of the Act.

The court of appeals also addressed the question of

whether Section 2 of the Act applies to the Uvalde Con-

solidated Independent School District, since the District

is neither a state nor county nor is it an entity responsible

for the registration of voters according to the definition of

“political subdivision” contained in Section 14(c)(2) of

the Act, 42 U.S.C. § 19731(c)(2). The court of appeals

reasoned that although decisions of this Court are some-

what contradictory in their interpretation of Section 14

5

(c)(2), the effect of the decisions is that all political en-

tities within a covered state are covered by the Voting

Rights Act.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Expands The Scope Of Sec-

tion 2 Of The Voting Rights Act Beyond That

Intended By Congress.

This case involves the scope of Section 2 of the Voting

Rights Act which provides that no “voting qualification

Or prerequisite to voting, or standard, practice, or pro-

cedure shall be imposed or applied by any State or politi-

cal subdivision to deny or abridge the right of any citizen

of the United States to vote on account of race or color,”

or because of language minority status. 42 U.S.C. § 1973.

It does not involve Section 5 of the Act which requires

preclearance from the Attorney General of any change in

a political structure that may affect voting. 42 U.S.C.

§ 1973c. Section 5 has been described as an “extraordin-

ary” exercise of Congressional power. See State of South

Carolina v. Katzenbach, 383 U.S. 301, 385-362 (1966)

(Black, J., dissenting). Section 2 has a much narrower

reach, as the court of appeals recognized.

Justice Powell, dissenting in an opinion joined by the

Chief Justice and Justice Rehnquist, in Dougherty County,

Georgia Board of Education vy. White, 439 U.S. 32, 44

n.4 (1978), succinctly described the reach of Section

2 when he observed that Section 2 is concerned with the

right to cast a vote, not the right to participate in a single-

member district election system.

On the other hand, Section 1 [sic, Section 2] [as

distinguished from Section 5] does not deal with

6

every voting standard, practice, or procedure, but

rather is limited to voting procedures that deny

someone the right to vote.

439 U.S. at 44. Because the Voting Rights Act was ori-

ginally enacted under the authority of the fifteenth amend-

ment, Section 2 of the Act is somewhat narrow in scope:

There is no decision in this Court holding a legis-

lative apportionment or reapportionment violative

of the Fifteenth Amendment. ... But, in at least

four cases the Court has considered claims that

legislative apportionments violated the Fourteenth

Amendment rights of identifiable racial or ethnic

minorities. [Citations omitted. ]

Beer v. United States, 425 U.S. 130, 142 n.14 (1976).

(Stewart, J.) At least five members of the Court (the

“Plurality” and Mr. Justice Marshall) recently found Sec-

tion 2 of the Act to be coextensive with and limited by

the fifteenth amendment. City of Mobile v. Bolden, _—

U.S.___, 100 S. Ct. 1490 (1980).

Yet, as set out above, the court of appeals has arrived

at an expansive interpretation of Section 2 of the Act

which allows a challenge by the United States to an

existing at-large method of election in a small West Texas

school district. The court of appeals reasoned that a

majority of this Court in Bolden approved prior holdings

of the fifth circuit that the dilution of the voting strength

of minorities by the at-large method of election, coupled

with an intent to so dilute the voting strength on the part

of the elected officials, constitutes a violation on the part

of the elected officials, constitutes a violation of the rights

of the minority under the fifteenth amendment.

7

The court of appeals also reasoned that even if Con-

gress did not have such authority under the fifteenth

amendment, the 1975 amendments to the Act, including

the amendment of Section 2 to prohibit discrimination

in voting against language minority group members, were

knowingly promulgated under the authority of the four-

teenth amendment to address the “problem” of the dilu-

tion of the voting strength of Mexican-Americans by

Texas school districts by using the at-large method of

electing board members. In so doing, the court of appeals

egregiously misread the language, holding and _ spirit

of this Court’s decision in Bolden, and has misconstrued

the Congressional purpose behind the 1975 amendments

to the Voting Rights Act.

The court of appeals noted that a plurality of this

court seemed to indicate that the fifteenth amendment

applied only to practices directly affecting access to the

ballot and “is therefore not relevant in cases involving

at-large districting.” 625 F.2d at 551. However, the

court of appeals glossed over the true meaning of

the plurality opinion to conclude that what the plurality

really said was that no fifteenth amendment claim was

proven since there was insufficient proof of discriminatory

purpose behind the at-large method of election. Jd. at

552. Since, in this case, the United States, in its

Amended Complaint, alleged that the at-large system has

been implemented with the purpose of causing irreparable

injury to Mexican-American voters by denying them

meaningful access to the political process, the fifth circuit

erroneously concluded that under Bolden a fifteenth

amendment (and consequently a §2) claim has been

stated.

8

That analysis by the court of appeals ignores the

ultimate conclusion of the Bolden plurality which is as

follows:

The Fifteenth Amendment does not entail the right

to have Negro candidates elected, ... . That Amend-

ment prohibits only purposefully discriminatory

denial or abridgement by government of the freedom

to vote “on account of race, color, or previous con-

dition of servitude.” Having found that Negroes in

Mobile “register and vote without hindrance,” the

District Court and Court of Appeals were in error

in believing tha the appellants invaded the protection

of that Amendment in the present case.

___US. at___, 100 S. Ct. at 1498-1499.

It cannot be ignored that the United States has not -

alleged that any Mexican-American within the jurisdiction

of the Uvalde Consolidated Independent School District

has been prohibited or discouraged from registering and

voting without hindrance.

Justice Stevens, concurring in Bolden, acknowledges

that a case challenging an at-large method of electing

local officials does not “fit” within the category of

those cases in which an individual is denied access

to the ballot or an individual’s vote in a heavily populated

district is less significant than an individual’s vote in a

smaller district; his decision is based on the fact that in

Mobile, Alabama, Black citizens registered and voted

without hindrance and that there was no claim that an

individual’s vote was worth less than any other’s. Jd. at

1508-1509.

When the Amended Complaint of the United States in

the :nstant case is held up to the “objective effects” test

9

of Justice Stevens, id. at 1512, and given the failure of

the United States to allege that Mexican-Americans in the

Uvalde Consolidated Independent School District may not

register and vote without hindrance, it is apparent that the

court of appeals erred in holding that the United States

has, indeed, stated a cause of action on which relief can

be granted.

The court of appeals also reasoned that the four-

teenth amendment is broader in scope than the fifteenth

amendment. Therefore, since the fourteenth amendment

served as a basis for the relevant 1975 amendments to

the Act, under fourteenth amendment precedents the

United States stated a cause of action by claiming dilution

or diminution in the voting strength of Mexican-Ameri-

cans as a result of the at-large system coupled with the

discriminatory purpose. The purpose of Congress in en-

acting the 1975 amendment to Section 2 of the Act was

not to “plug in” precedents established in cases instituted

by private individuals challenging at-large electoral sys-

tems on fourteenth amendment grounds. But, even if that

were ule Congressional purpose, the opinions of the plur-

ality and of Justice Stevens in Bolden demonstrate that the

Amended Complaint of the United States fails to state a

cause of action under Section 2.

In 1975, Congress amended Section 2 of the Act to in-

clude a prohibition against abridging the voting rights of

certain language minority citizens by incorporating into

Section 2, Section 4(f)(2) of the Act. 42 U.S.C. § 1973b

(f)(2). The court of appeals in this case stated that Con-

gress was aware of and concerned about the dilution of the

voting rights of language minority citizens when it en-

acted the 1975 amendments. Therefore, the court de-

cided, Congress clearly intended, in 1975, to give the

10

United States the cause of action it now claims. 625 F.2d

at 553. A closer examination of the record demonstrates

the error in that determination.

Section 2 was originally enacted in 1975. Pub. L.

89-110, 79 Stat. 437 (1975) (codified at 42 U.S.C.

§ 1973). The Congressional reports, from that time,

demonstrate the glaring absence of any discussion about

assertedly dilutive effects of at-large voting systems on

minority voting strength. See H. R. Rep. No. 439, 89th

Cong., Ist Sess., (1965), reprinted in [1965] U.S. Code

Cong. & Ad. News 2437 et seq. (hereinafter cited as

“H. R. Rep., 1965”). The reasons for such an omission

are obvious: it was not until 1973, when this Court de-

cided White v. Regester, 412 U.S. 755 (1973), that a

successful “dilution” case against an at-large system was

prosecuted through the Court. Thus, Congress could not

have intended in 1965 to give the Attorney General a

cause of action non-existent at the time of its enactment

of Section 2.

The amendments in 1975 were made to “broaden [the

Act’s] special coverage to new geographic areas... .”

S.Rep. No. 94-295, 94th Cong., Ist Sess., p. 24 (1975),

reprinted in [1975] U.S. Code Cong. & Ad. News 790

(hereinafter cited as “1975 Senate Report”). There is

no indication that Congress intended to expand the scope

of the Act substantively.

Rather, Congress was aware that constitutional attacks

(as opposed to suits under Section 2) would continue to

be the vehicle used for challenging existing at-large sys-

tems. The Act (at least Section 5) would apply and pro-

vide the intended remedial role only upon a successful

constitutional challenge when the appropriate court or-

dered the implementation of the new system:

11

Thus, for example, where a federal district court

holds unconstitutional an apportionment plan which

predates the effective date of coverage under the

Voting Rights Act, any subsequent plan ordinarily

would be subject to Section 5 review.

1975 Senate Report, supra, at 18. No suit by the Attorney

General under Section 2, challenging an apportionment

predating the coverage date of the Act, was envisioned.

Contrary to the statements by the court of appeals,

there is no indication in the legislative history that Con-

gress intended Section 2 to envelop the substantive pro-

scriptions of the fourteenth amendment, and thus White

v. Regester. The legislative history shows that Con-

gress was concerned about the possibility that certain

language minority citizens might not be considered mem-

bers of a “race or color” group protected under the fif-

teenth amendment. Therefore, “the enactment of the

expansion amendments” in 1975 based on the fourteenth

and fifteenth amendments “would doubly insure the

constitutional basis for the Act.” 1975 Senate Report,

supra, at 47-48. In summation, the legislative history does

not support an expansion of Section 2.

Nevertheless, if the court of appeals is correct in its

holding that Section 2 incorporates to the fullest extent

the fourteenth amendment prohibition against dilution

of the voting strength of minorities, the court of appeals

erred in deciding that the Amended Complaint of the

United States has stated such a cause of action. First, the

allegations made by the United States against Petitioners

were allegations that were proven in Bolden. Yet,

the plurality and Justice Stevens determined that such

facts were insufficient to constitute a violation of either

12

the fourteenth or the fifteenth amendments. As_ those

two opinions indicate, the criteria established by the fifth

circuit in Zimmer v. McKeithen, 485 F.2d 1297 (Sth

Cir. 1973) (en banc), aff'd. sub nom. East Carroll Parish

School Board v. Marshall, 424 U.S. 636 (1976) (affirmed

without approval of the Constiutional views expressed

by the court of appeals) are insufficient to prove an un-

constitutional discriminatory purpose. The so-called Zim-

mer criteria, which the United States apparently tried to

follow in making its Amended Complaint, no longer pro-

vide a basis for relief under the Constitution.

In providing an expansive interpretation of Section 2,

the court of appeals also ignored the limitations placed

by Section 12(d) of the Act on the authority of the United

States to attempt to institute such an action. Section 12(d)

only authorizes the Attorney General in the name of the

United States to seek “preventive” relief; that is, to pre-

vent persons such as Petitioners from taking affirmative

steps to violate the voting rights of minority group mem-

bers. Here, the United States sought to have the court

force Petitioners to restructure their entire system of elect-

ing school board members by dividing the school district

into single member districts. Such a prayer for relief,

makes a mockery of the phrase “preventive relief” as used

in Section 12(d).

In summation, the United States has exceeded its statu-

tory authority by challenging the long existing at-large

method of electing members of the Board of Trustees for

the Uvalde Consolidated Independent School District; it

has wholly failed to state a cause of action upon which

relief can be granted under Section 2 of the Voting Rights

Act; therefore, the court of appeals erred in reversing

the judgment of the district court.

13

2. The Uvalde Consolidated Independent Schocel

District Is Neither A “State” Nor A “Political

Subdivision” For Purposes Of 42 U.S.C. § 1973

And Is, Therefore, Not Subject To Its Prohibi-

tions.

The Voting Rights Act provision in question on this

appeal, Section 2, prohibits practices or procedures that

deny or abridge the voting rights of certain language

minority citizens, only when imposed or applied by a

“state or political subdivision.” The term “political sub-

division” is defined as:

The term political subdivision shall mean any

county or parish, except that where registration for

voting is not conducted under the supervision of a

county or parish, the term shall include any other

subdivision of a state which conducts registration for

voting.

42 U.S.C. § 19731(c)(2). As noted by the court of

appeals, 625 F.2d at 554, the Uvalde Consolidated In-

dependent School District is not a State, county or parish,

and does not register voters. Tex. Elect. Code Ann., art.

5.09a (Vernon Supp. 1980). In short, “it is certainly not

a political subdivision as defined by Section 14(c)(2).”

625 F.2d at 554. Therefore, the Uvalde Consolidated In-

dependent School District is not a state or political sub-

division for purposes of Section 2, and the United States

has no Section 2 cause of action against it.

A limited interpretation of the term “political subdi-

vision” within the meaning of Section 2 of the Act is

consistent with and compelled by the Congressional pur-

pose in enacting Section 2. The term “political subdivi-

sion” was defined in the Act to limit its scope, so that

14

it would not “confer jurisdiction upon the federal govern-

ment to intervene in every ward of every city and town

covered by the bill.” 111 Cong. Rec. 9270 (1965).

There is no sound reason, consistent with fundamental

principles of statutory construction, for refusing to ac-

knowledge the clear limitation placed on the term “political

subdivision” within Section 2 by the definition in Section

14(c)(2). Congress chose to limit the reach of Section 2

to those governmental entities charged with the respons-

ibility of registering voters, i.e., states, counties, or par-

ishes. Had Congress desired greater breadth for Section 2,

it could have omitted any limiting definition of the term

“political subdivision,” or could have drafted Section 2

in such a way that there would be no doubt as to its

scope, as Congress did in other voting legislation. See,

e.g., 42 U.S.C. § 1971(a)(1).

Admittedly, Section 14(c)(2) of the Act, defining the

term political subdivision, has been held inapplicable to

restrict the reach of Section 5 of the Act, 42 U.S.C.

§ 1973(c). Dougherty County, Georgia Board of Educa-

tion v. White, 439 U.S. 32 (1978); United States v.

Board of Commissioners of Sheffield, Alabama, 435 US.

110 (1978). Nevertheless, these cases do not affect the

limitation placed on Section 2 of the Act by definition

of “political subdivision” in Section 14(c) (2).

As Justice Powell aptly noted in his dissent in City of

Rome v. United States, iim LO Bare 19450

(1980), “it is elementary that where the language of the

statute is clear and unambiguous, there is no occasion to

look at legislative history.” Jd. at 1573, The meaning of the

term “political subdivision” is clearly limited by the de-

finition given it in Section 14(c)(2) on the face of the

15

Statute without resort to legislative history. Again, as

Justice Rehnquist stated in Sheffield: “whatever other

ambiguities there may be in the Act, the definition of

‘political subdivision’ is not one of them.” 435 U.S. at

143-44, (Rehnquist, J., dissenting).

Any construction ot the term “political subdivision”

within the meaning of Section 2 of the Voting Rights Act

to include the Uvalde Consolidated Independent School

District would be the “protean construction” Justice

Powell warned in his Rome dissent would reduce the

statute to irrationality.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit.

Respectfully submitted,

REYNOLDS, ALLEN, CooK,

PANNILL & HOOPER

X Milam Bldg.

Potente Texas 77002

(713) 651- 1300

Attorneys for Petitioners

Of Counsel:

JEFFREY L. ROGERS

January 7, 1981

A-1

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellant,

We

UVALDE CONSOLIDATED INDEPENDENT

SCHOOL DISTRICT, et al.,

Defendants-Appellees.

No. 79-1498

UNITED STATES COURT OF APPEALS

Fifth Circuit

Sept. 2, 1980.

United States brought suit against school district and

members of its board of trustees claiming that use of at-

large method of electing school board members had been

implemented with intent and purpose of causing irrepar-

able injury to Mexican-American voters by effectively

and purposefully precluding them from meaningful ac-

cess to the political process and that election system was

therefore unlawful under federal law. The United States

District Court for the Western District of Texas, 461

F.Supp. 117, John H. Wood, Jr., J., dismissed suit for

failure to state a claim upon which relief could be granted,

and United States appealed. The Court of Appeals, Alvin

B. Rubin, Circuit Judge, held that: (1) Congress was

authorized under Fourteenth Amendment to amend Vot-

ing Rights Act section to prohibit purposefully discrimi-

natory maintenance of vote-diluting at-large districting

scheme; (2) Voting Rights Act section was intended to

provide Attorney General with means of combatting use

= on

oe

A-2

of at-large districting plans to dilute Mexican-American

vote, and thus complaint stated cause of action; and

(3) for purpose of Voting Rights Act section, school

district was a “political subdivision.”

* Reversed and remanded.

James C. Hill, Circuit Judge, concurred specially and

filed opinion.

Appeal from the United States District Court for the

Western District of Texas.

Before HILL, RUBIN and ANDERSON, Circuit

Judges.

ALVIN B. RUBIN, Circuit Judge:

A complaint by the Attorney General, in the name

of the United States, brought under the Voting Rights

Act of 1965, as amended, 42 U.S.C. §§ 1971, 1973 to

1973bb-1, alleges that an at-large system of electing

representatives to a local school board in Texas “has

been implemented with the intent and purpose of causing

. Irreparable injury to Mexican-American voters. . .

by effectively and purposefully precluding them from

meaningful access to the political process. . . .” The

district court dismissed the suit for failure to state a

claim upon which relief could be granted Fed. R. Civ. P.

12(b)(6). Because we find that the complaint made

allegations which, if proved, would be sufficient to war-

rant relief, we reverse and remand for further proceedings.

I.

[1] The case reaches us on the unsupported but not

yet disproved allegations of the complaint. This initial

A-3

pleading, which is required only to give notice of the

claim, must be construed liberally so as to do substantial

justice. Fed. R. Civ. P. 8(e). A complaint is not to be

dismissed under Rule 12(b)(6) unless it appears to a

certainty that no relief can be granted under any set of

facts that can be proved in support of its allegations.’

The complaint alleges that:

the seven member Board of Trustees of the Uvalde

Consolidated Independent School District is elected

at-large;

approximately fifty percent of the population of

the school district is Mexican-American, but Mexi-

can-American voters’ residences are concentrated in

one part of the City of Uvalde;

only one Mexican-American has ever been elected

to the Board of Trustees and currently no Mexican-

Americans serve on the Board;?

voting is normally along racial lines;

the Board has discriminated against Mexican-

Americans in the past by operating intentionally

segregated elementary schools and is unresponsive

to the needs of the Mexican-American community;

as a result of the school district’s election system,

Mexican-Americans have less opportunity than

“whites” to participate in the political process and

to elect condidates of their choice to the Board;

1. Conley v. Gibson, 355 US. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.

2d 80 (1957). As Professor Charles Wright says, the rule “has been

stated literally hundreds of times.” It “precludes final dismissal for

insufficiency of the complaint except in the extraordinary case where

the pleader makes allegations that show on the face of the complaint

some insuperable bar to relief.” C. Wright, Law of Federal Courts,

3d ed., 322. See also 5 C. Wright & A. Miller, Federal Practice and

Procedure: Civil §§ 1215, 1216.

2. At oral argument the Assistant United States Attorney stipu-

lated that two Mexican-Americans have recently been elected.

A-4

the at-large system of electing the Board has been

implemented with the purpose of causing, and is

causing, irreparable injury to Mexican-American

voters by denying them, in effect, meaningful ac-

cess to the political process and by frustrating their

right to a full, undiluted vote.

Relying on these allegations, the Attorney General sought

a judgment declaring that the at-large election system

violated section 2 of the Voting Rights Act of 1965, 42

U.S.C. § 1973, and enjoining the use of that system.

Acknowledging that at-large systems of selecting voters

may violate the fourteenth amendment, see White v.

Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314

(1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct.

1858, 29 L.Ed.2d 363 (1971), and, that if the com-

plaint had been filed by an aggrieved voter, the allega-

tions might state a fourteenth amendment claim, the

district court nevertheless held that section 2 of the

Voting Rights Act does not itself prohibit the mainten-

ance of an at-large method of election for school board

members,’ and, therefore, that the Attorney General had

3. The original complaint filed by the Attorney General did not

include an allegation of intentional voting discrimination. The district

court dismissed that complaint, but allowed the United States twenty

days within which to amend it. The United States did so, adding the

allegation of intentional discrimination. The amended complaint was

also dismissed by the district court which held, despite the intent

allegation, that “the Attorney General, in the name of the United

States, has no cause of action under .. . 42 U.S.C. § 1973 [section

2] when he alleges that as a result of the at-large method of election

Mexican-American residents have less opportunity than do others to

participate in the political process.’ The district court specifically

noted that its decision did not affect the right of private citizens

to bring an action. The district court also rejected the United States’

other bases for the claim; however, on appeal the United States rests

solely on the contention that the complaint states a cause of action

under section 2.

A-5

no basis for the suit. Before this court the school district

contends that the district court’s conclusion should be

affirmed both because section 2 does not reach at-large

districting schemes and because a school board is not

a “State or political subdivision” covered by section 2.

We address each argument in the light of Supreme Court

and Fifth Circuit interpretations of the Voting Rights

Act. In doing so, we do not repeat the discussion of its

history and purposes set forth in many prior decisions.

See, e. g., United States v. Board of Commissioners of

Sheffield, Ala., 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d

148 (1978); Allen v. State Board of Elections, 393 US.

544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). However, we

point out that a single statute contains a number of dif-

ferent provisions each with a different objective, that for

its comprehension critical examination of each section is

essential and that the reader cannot, therefore, assume

that each of the sections is designed to reach the same

objective or is necessarily to be read in the same manner.*

4. We set out very briefly, for the reader who is unfamiliar with

the basic anatomy of the statute, a summary of the Act.

The Voting Rights Act of 1965 enacted several different provisions

to enforce the right to vote without discrimination based on race

or color. Section 2, 42 U.S.C. §$ 1973, forbids any state or political

subdivision to deny or abridge the right of a citizen to vote on the

basis of race or color. Section 3, 42 U.S.C. § 1973a, sets forth

judicial remedies to be utilized by a court whenever the Attorney

General or an aggrieved person institutes a proceeding under any

statute to enforce the voting guarantees of the fourteenth or fifteenth

amendments. Section 4, 42 U.S.C. § 1973b, forbids the adoption of

any test or device to deny or abridge the right to vote on the basis

of race or color in “any” federal, state ‘‘or local election.”’ Section 4,

however, applies only to certain geographical areas: those states that

maintained a voting test or device on November 1, 1964 and in

which less than 50% of the persons of voting age residing in the

state were registered to vote or actually voted in the presidential

election of November, 1964; and, in addition, to ‘‘any political sub-

division with respect to which such determinations have been made

as a separate unit.”

A-6

IT.

Section 2 of the Voting Rights Act, 42 U.S.C. § 1973,

which was amended in 1975 to include the words itali-

cized below, provides:

No voting qualification or prerequisite to voting, or

standard, practice, or procedure shall be imposed

or applied by any State or political subdivision to

deny or abridge the right of any citizen of the United

States to vote on account of race or color, or in

contravention of the guarantees set forth in section

4(f)(2) [42 U.S.C. § 1973b(f)(2)].

The guarantees of section 1973b(f)(2) [section 4(f)

(2) of the amended Act] assure against any denial or

abridgement of the right to vote because the voter is a

member of a language minority group.° The Attorney

Section 5, 42 U.S.C. § 1973c, provides that, whenever a state or

political subdivision designated pursuant to section 4 seeks to change

a voting practice, it must obtain clearance for that change from

either the United States District Court for the District of Columbia

or the Attorney General. ‘This so-called ‘preclearance’ requirement

is one of the most extraordinary remedial provisions in an Act noted

for its broad remedies. Even the Department of Justice has described

it as a ‘substantial departure . . . from ordinary concepts of our

federal system’; its encroachment on state sovereignty is significant

and undeniable.” United States v. Board of Commissioners of Shef-

field, Ala., 435 U.S. 110, 141, 98 S.Ct. 965, 984, 55 L.Ed.2d 148 (1978)

(Stevens J., dissenting, joined by Burger, C. J., and Rehnquist, J)

(footnote omitted).

There is a marked difference between the coverage of sections 2 and

5. Section 5, with its stringent preclearance requirements, is limited

to geographical areas designated under section 4 of the Act as having

a history of discrimination; section 2 applies nationwide.

5. “No voting qualification or prerequisite to voting, or standard,

practice, or procedure shall be imposed or applied by any State or

political subdivision to deny or abridge the right of any citizen of

the United States to vote because he is a member of a language

minority group. 42 U.S.C. § 1973b(f)(2).”

A-7

General is authorized to sue to prevent violations of

section 2.°

The statute applies to any “standard, practice, or pro-

cedure” that “den[ies] or abridg[es]” the right of language

minority groups to vote. Section 5 of the Act, 42 U.S.C.

§ 1973c, which prohibits certain jurisdictions from enact-

ing any new “standard, practice or procedure with respect

to voting” unless advance clearance is obtained, has been

held to include changes from multiple single district to

at-large election systems. See Allen v. State Board of

Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1

(1969). However, section 5 is more broadly remedial

than section 2 and reaches all changes in voting laws

and not simply voting practices that deny or abridge

the right to vote. Thus, some members of the Supreme

Court have reasoned that the broad interpretation given

to section 5 may not justify a similarly broad reach for

section 2. “Section 2 does not deal with every voting

standard, practice, or procedure, but rather is limited to

voting procedures that deny someone the right to vote.”

Dougherty County Board of Education v. White, 439

U.S. 32, 51 n.4, 99 S.Ct. 368, 379 n.4, 58 L.Ed.2d 269

(1978) (Powell, J., dissenting, joined by Burger, C. J.,

and Rehnquist, J.). These Dougherty dissenters became a

plurality in City of Mobile v. Bolden, ___U.S.____, 100

S.Ct. 1490, 64 L.Ed.2d 47 (1980) when they joined in

6. See 42 U.S.C. § 1973j(d). There is also a general authorization

for the Attorney General to sue to redress violations of the Voting

Rights Act of 1870, 42 U.S.C. § 1971, which safeguards the right of

all citizens to vote at any election, including specifically school dis-

trict elections, without distinction of race or color. If a school board

election is not covered by section 2, the Attorney General, therefore,

may attempt to bring a complaint under 42 U.S.C. § 1971(c). Al-

though the Attorney General asserted a cause of action under § 1971

below, he does not press it before us.

oe

A-8

an opinion by Justice Stewart holding that the mere

dilution of the voting rights of a racial group did not

violate the fifteenth amendment or, consequently, section

2 of the Voting Rights Act.

The school district now asserts, on the authority of

City of Mobile v. Bolden, that a section 2 claim is not

stated by allegations of dilution of voting rights, even

coupled with a claim of discriminatory purpose.

Il.

Bolden reversed a decision of this court holding that

Mobile’s at-large system of elections operated to dis-

criminate against black voters in violation of the four-

teenth and fifteenth amendments. See Bolden v. City of

Mobile, 571 F.2d 238 (Sth Cir. 1978). Our opinion had

held that, if the challenged election laws were maintained

for a discriminatory purpose, they violated both the

fourteenth and fifteenth amendments, and that the plain-

tiffs had successfully proved discriminatory motive in

the district court. The Supreme Court reversed our judg-

ment.

The Bolden panel had not considered the statutory

section 2 claims but upheld the judgment of the district

court because the districting was found to violate both

the fourteenth and fifteenth amendments. The Supreme

Court, however, reviewed the circuit court decision under

the statute as it stood prior to the 1975 amendment.

While the members of the Court were not able to agree

on a majority opinion, a plurality concluded that “the

sparse legislative history of [pre-amendment] § 2 makes

clear that it was intended to have an effect no different

from that of the Fifteenth Amendment itself.” It, there-

A-9

fore, discussed the scope of the fifteenth amendment alone

as coextensive with, as well as limitative of, section 2.

The plurality seems to conclude at one point “that

the Fifteenth Amendment applies only to practices that

directly affect access to the ballot” and is therefore not

relevant to cases involving at-large districting. See Bolden,

cia Ws OE coms EOD Bae, 8 1509 25, OF Leda

at 47 (Stevens, J., concurring in the judgment) Cf.

Dougherty County Board of Education v. White, 439

U.S. 32, 99 S.Ct. 368, 379 n.4, 58 L.Ed.2d 269 (1978)

(Powell, J., joined by Burger, C. J., and Rehnquist, J.)

(section 2 “is limited to voting procedures that deny

someone the right to vote”). However, Justice Stewart’s

opinion for the plurality also includes an extensive dis-

cussion of the need for proof of “racially discriminatory

motivation” in a fifteenth amendment challenge to voting

laws and implies that, where minorities register and vote

without hindrance, such purposeful discrimination had

not been shown. See Boiden, Vo tt .., 1 SAL

at 1517, 64 L.Ed.2d at 47 (White, J., dissenting) (“A

plurality of the Court today agrees with the courts below

that maintenance of Mobile’s at-large system for election

of city commissioners violates the Fourteenth and Fif-

teenth Amendments only if it is motivated by a racially

discriminatory purpose.”) Thus, the plurality’s rejection

of the fifteenth amendment and section 2 claims in Bolden

may rest entirely upon the conclusion that no discrimina-

tory motivation ‘vas shown.

[2] The ambiguity of the plurality opinion is allevi-

ated by the various dissents and concurring opinions, each

of which indicates that in a proper case an at-large dis-

tricting plan may be held to violate the fifteenth amend-

A-10

ment and, therefore, section 2.’ Moreover, the essential

holding of this court in Bolden, that the fifteenth amend-

ment prohibits purposefully discriminatory voting schemes,

was approved in effect by a majority of the court. The

plurality opinion focused on this requirement and appears

to us to rest its conclusion that the fifteenth amendment

was not violated on its finding that the “racially neutral”

at-large districting was not “motivated by a discriminatory

purpose.” US. at ___, 1100 S.Ct. at 1497, 64

L.Ed.2d at 47.°

[3] We are convinced that the fundamental reasoning

of our decision in Bolden, and its companion, Nevett v.

Sides, 571 F.2d 209 (Sth Cir. 1978), survives the Su-

preme Court’s decision intact. Thus, “a showing of racial-

ly motivated official action that infringes the right to vote

7. Justice Blackmun, for example, apparently assumes such a

violation in Bolden, but concurs in the judgment of the plurality

because the relief accorded by the district court “was not commen-

surate with the exercise of sound judicial discretion.” Justice Stevens

opined that the fifteenth amendment applies in cases involving at-

large districting but concluded that the constitutionality of such

systems should be measured by an objective standard, rather than

by focusing on motivation. Justice White felt that the evidence

established discriminatory motivation and, therefore, a violation of

the fourteenth and fifteenth amendments. Justices Marshall and

Brennan felt that proof of discriminatory intent was unnecessary.

8. Thus, although Justice Stevens concluded that the plurality

held that the fifteenth amendment does not reach at-large election

systems regardless of their purpose, and that the plurality’s discussion

of the need for discriminatory purpose was dictum, we are inclined

to accept Justice White’s view that the plurality’s holding rested on

the requirement of discriminatory purpose in fifteenth amendment

claims. In any event, it is clear that a majority of the court believes

that a fifteenth amendment claim can be made out against vote-

diluting at-large districting if discriminatory purpose is proved. See

footnote 7, supra. Although only Justice White appears to have

wholly adopted this court’s reasoning in Bolden, a majority appears

to agree with the legal principles set forth in our Bolden opinion

but not with their application to the evidence presented.

A-11

is sufficient to state a cause of action.” 571 ¥.2d at 221.

Our precedent recognizes that at-large districting may

result in substantial dilution of a minority vote and there-

fore constitute unconstitutional infringement of the right

to vote if discriminatory purpose is shown. See Nevett

v. Sides; see also United States v. East Baton Rouge

Parish School Board, 594 F.2d 56 (Sth Cir. 1979).

The Court in Bolden discussed the text of section 2

as it stood prior to the 1975 minority language group

amendment, even though Bolden was filed after that

amendment. It is evident, however, for reasons we shall

now discuss, that the amendment did not weaken the

conclusion we have reached.

If the fifteenth amendment includes persons of Spanish

heritage and others who are members of language minor-

ity groups within the protection accorded to those identi-

fied by race or color, an interpretation that has been

advocated by the Department of Justice both in this case

and in the Congress,’ then the 1975 amendment sub-

tracted nothing from practices reached by section 2, but

merely extended its protection to specifically designated

racial groups. In that event, the views expressed in Bolden

apply directly to such groups. If, on the other hand,

groups identifiable only »y linguistic characteristics are

9. “Section 205

The Fourteenth Amendment is added as a constitutional basis

for these voting rights amendments. The Department of Justice

and the United States Commission on Civil Rights have both

expressed the pesition that all persons defined in this title as

‘language minorities’ are members of a ‘race or color’ group

protected under the Fifteenth Amendment. However, the enact-

ment of the expansion amendments under the authority of the

Fourteenth as well as the Fifteenth Amendment, would doubly

insure the constitutional basis for the Act.”

H.R. Rep. No. 94-196, 94th Cong., Ist Sess. 41 (1975).

A-12

not race or color groups, however elusive the concept of

race, Congress has no fifteenth amendment authority to

legislate for their protection. Because Congress’s fifteenth

amendment enforcement authority reaches only legisla-

tion directed against racial or color discrimination, the

amendment might be considered beyond the Congress’s

fifteenth amendment authority.

[4-6] The fourteenth amendment is broader than the

fifteenth. Its protective buckler shields all citizens of the

United States from abridgement of privileges and im-

munities of citizens, and all persons from deprivation of

life, liberty and property without due process and from

denial of the equal protection of the law. Congress’s power

under section 5 of the fourteenth amendment clearly ex-

tends to protection of any group of persons invidiously

discriminated against by state law including groups iden-

tifiable by ethnic, national origin or linguistic characteris-

tics. Purposefully discriminatory maintenance of a vote-

diluting at-large districting scheme comes within the pur-

view of that protection. See City of Mobile v. Bolden;

White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.

2d 314 (1973).

Whether Congress had power under the fifteenth amend-

ment to extend protection to language minority groups

we need not now decide. In taking this action, Congress

invoked its fourteenth amendment charter as well. See

42 U.S.C. § 1973b(f); See generally H.R. Rep. No. 94-

196, 94th Cong., Ist Sess. (1975); S.Rep. No. 94-295,

94th Cong. Ist Sess. (1975), U.S. Code Cong. & Admin.

News 1975, p. 774. Thus, unlike the pre-1975 Act, the

present statute is not limited to fifteenth amendment com-

pass. We interpret its language within the wider four-

teenth-amendment bounds and find that it reaches any

A-13

“standard, practice or procedure” instituted or maintained

with the purpose of abridging the voting rights of the

members of groups protected by section 2.

[7, 8] Although Congress’s invocation of the four-

teenth amendment alone might not support a conclusion

that at-large districting is a “standard, practice or pro-

cedure” forbidden by section 2, the legislative discussion

preceding the amendments indicates that this was Con-

gress’s view of the substantive scope of the section 2 pro-

hibition when it adopted the amendments, whether or not

that interpretation was previously proposed. In 1975, a

central concern of the Congress was the need to protect

language minority groups from practices that deprived

them of equal political participation. Among the cata-

logued abuses, Congress noted the problem of “dilution

of the vote” of language minority groups by voting struc-

tures, including “the at-large structure.” “These structures

effectively deny Mexican-American and black voters in

Texas political access... .” H.R. Rep. No. 94-196, 94th

Cong. Ist Sess. 19-20 (1975). The Congress specially

invoked fourteenth amendment authority for the extension

designed to alleviate the problems taced by Mexican-

American voters in exercising their votes, and the House

arid Senate reports specifically discuss White v. Regester,

412 US. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973),

a case in which the Supreme Court determined that a

Texas at-large districting plan violated the fourteenth

amendment rights of Mexican-American voters. See H.R.

Rep No. 94-196, 94th Cong. Ist Sess. 19 (1975); S.Rep.

No. 94-295, 94th Cong., Ist Sess. 25 (1975). The legis-

lative history plainly supports the United States’ position

that section 2, as amended, was intended to provide the

Attorney General with a means of combating the use of

A-14

at-large districting plans to dilute the Mexican-American

vote.

This interpretation is also supported by the structure

of the amendments. The substantive protection of lan-

guage minority groups was added in a separate section,

§ 1973b(f). That section recites Congress’s concerns

about the voting rights of language minority groups, the

problems they have faced, the protections and prohibitions

they are to receive, and the foundation of the amend-

ments in both the fourteenth and fifteenth amendments."

This suggests that Congress believed its enactment was

responsive to all the concerns it expressed in the legisla-

tive history.”

It is evident that, whatever the scope of section 2 as a

fifteenth amendment enforcement statute, its amendment

in 1975 to expand its reach to fourteenth amendment

10. ‘‘The Congress finds that voting discrimination against citi-

zens of language minorities is pervasive and national in scope.

Such minority citizens are from environments in which the

dominant language is other than English. In addition they have

been denied equal educational opportunities by State anu local

governments resulting in severe disabilities and continuing

illiteracy in the English language. The Congress further finds

that, where State and local officials conduct elections only in

English, language minority citizens are excluded from _ partici-

pating in the electoral process. In many areas of the country,

this exclusion is aggravated by acts of physical, economic and

political intimidation. The Congress delcares that, in order to

enforce the guarantees of the fourteenth and fifteenth amend-

ments to the United States Constitution, it is necessary to

eliminate such discrimination by prohibiting English-only elec-

tions, and by prescribing other remedial devices.”’

42 U.S.C. § 1973b(f) (1).

11. The Attorney General might have premised his suit specifi-

cally on § 1973b(f)(2). However, because § 1973 also extends pro-

tection as to the guarantees made by § 1973b(f)(2), we find no

defect in the reference to that section alone.

A-15

violations was intended to bring within its scope allega-

tions of purposeful discrimination in at-large election

scheme.**

IV.

[9] The Act applies only to a “State or political sub-

division.” The school district argues that, while it might

be considered an agency of the state or a political sub-

division were these terms used in their usual broad sig-

nificance, they are used in the act as terms of art deliber-

ately defined in a limited way so as to exclude such units

as school districts.*®

Section 14(c)(2) of the Act, 42 U.S.C. § 1973l](c)

(2) states:

The term “political subdivision” shall mean any

county or parish, except that where registration for

voting is not conducted under the supervision of a

county or parish, the term shall include any other

subdivision of a State which conducts registration

for voting.

12. We do not reach the question whether section 2, post-amend-

ment, forbids mere vote dilution.

13. In Wise v. Lipsccomb, 437 U.S. 535, 550, 98 S.Ct. 2493,

2502, 57 L.Ed.2d 411, 423 (1978). Justice Rehnquist, joined by

Chief Justice Burger and Justices Stewart and Powell stated: ‘we

have never had occasion to consider whether an analogue of this

highly amorphous theory [of vote dilution] may be applied to munici-

pal governments . . . [T]he possibility of such distinctions has not

been foreclosed. .. .”’ The decision in Bolden virtually forecloses the

possibility that vote dilution is wrongful only when practiced by a

governmental unit larger than a municipality. However, in enacting

the Voting Rights Act, Congress may have deliberately refrained

from action with regard to all political units because of its desire

to preserve some state prerogatives in the federalist system. It is

that possibility we now consider.

A-16

The Uvalde School District is patently not a county and

it does not register voters. It is certainly not a political

subdivision as defined by section 14(c)(2).

However, the Supreme Court has held that this defini-

tion limits the meaning of the phrase “State or political

subdivision” only when it appears in certain parts of the

Act, and that it does not confine the phrase as used

elsewhere in the Act.’* In United States v. Board of Com-

missioners of Sheffield, Ala., 435 U.S. 110, 98 S.Ct. 965,

55 L.Ed.2d 148 (1978), the court held that section 5

of the Act, 42 U.S.C. § 1973c, which requires a “State

or political subdivision” to preclear voting changes, ap-

plied to Sheffield, Alabama, a municipality that had never

registered voters and a governmental unit that therefore,

was not a state, county or registration unit.

In Sheffield the Court concluded that, for section 5

purposes, when a state is designated for coverage, the

simple word “state” refers to all political units within

the designated state. It went on to say, in deliberate dicta,

that a similar argument could be made to the term

“political subdivision.” A school board could not be

separately designated for coverage under the Act, it said,

but, “once an area of a nondesignated State had been

determined to be covered” all state actors within “the

designated political subdivisions” were embraced by sec-

tion 5.

The definition of political subdivision in section 14(c),

the Court reasoned, merely limits the political units that

can be designated as subject to the Act’s special remedial

provisions when they are in a nondesignated State, and

14. See n. 4, supra, for a discussion of the various contexts in

which the phrase appears.

A-17

thus limits only the phrase “political subdivision” as used

in section 4(b), not the term as used elsewhere in the

Act. In Dougherty County Board of Education v. White,

439 US. 32, 99 S.Ct. 368, 58 L.Ed.2d 269 (1978), the

Court applied section 5 to a county board of education

reasoning again that the board was included within the

term “State.”

The meaning of the term “State or political subdivi-

sion,” as used in section 4(a) was considered by the

Court in City of Rome y. United States, USS. ;

100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). Section 4(a)

of the Act allows a covered jurisdiction to avoid its pro-

visions by bringing a suit to establish that it has not dis-

criminated in the past. 42 U.S.C. § 1973b. The provision

is applicable with respect to a “State or political sub-

division” to which the Attorney General has applied

the Act’s remedial provisions. In concluding that Rome,

Georgia, did not come within the term “State or political

subdivision” for purposes of this “bail-out” provision, the

Court reasoned that the legislative history clearly allowed

the bailout option only to the State as a whole or to any

political subdivisions separately designated by the attorney

general as coming within the Act. Rome was under the

Act because it was in a designated State. Thus, it could

bail out only if the State did. The Court distinguished

Sheffield, holding that it determined only that the reach

of the term “State” in section 5 was geographic, not that

a city was actually a “State,” and that Sheffield simply

held that the preclearance requirement for a covered state

“reached all such changes made by political units in

that State.” Because the legislative history clearly pro-

hibits bailouts by individual political units in a covered

state, it precluded the City of Rome from separate bailout

consideration.

A-18

Here we must determine whether the term “State or

political subdivision” in section 2 is to be read, as it is

in section 5, to include a school board (to which Shef-

field and Dougherty County would lead us) or whether

it excludes such a governmental unit (to which Rome,

interpreting section 4(a), leads).

Section 5 is a special remedial provision designed to

apply only to those areas where voting discrimination has

historically been present. Section 2 applies throughout the

nation. The reliance placed in Sheffield on the geographi-

cal significance of the term “State,” and the interrelation-

ship noted between section 4 and section 5, therefore,

do not apply.

However, the purpose of the definitional limitation in

section 14 is not served by reading that restriction into

section 2. As we have seen, the limitation was intended

to limit the political units that can be designated by the

Attorney General as subject to the remedial provisions

of section 4 when these subdivisions are in a nondesig-

nated state. Moreover the 1975 amendment (unlike the

vriginal Act) partially relies on the authority of the four-

teenth amendment, which reaches all action under state

authority. Justice Powell, dissenting in Rome, commented

accurately that the Court has construed identical words

to have varying meanings in different situations and has

labeled the construction “protean,” Rome, US. at

___, 100 S.Ct. at 1573, 64 L.Ed.2d 119. While the

characterization may be correct, it is evident that the

court has interpreted these identical terms to vary in

meaning depending on the purpose of the statutory sec-

tion employing them. It has been guided by function,

not by an effort to achieve linguistic constancy.

A-19

Given the varying interpretations of the same words

reached in Sheffield and Dougherty County on the one

hand and in Rome on the other, the section 2 interpreta-

tive problem cannot be resolved merely by processes of

Cefinition or literal exegesis. Lexicons would not elimi-

nate the ambiguity. Absent the limiting definition in

section 14, the broad sweep of section 2 would certainly

embrace school boards. The narrowing of the term

“political subdivision” was adopted for a particular pur-

pose not served by incorporating the same stricture into

section 2. As Mr. Justice Brennan pointed out in Sheffield,

[discussing section 4(a)] thus to qualify section 2, would

make it inapplicable to the actions of officials at polling

places in hundreds of elections throughout the nation.

435 US. at 120-21, 98 S.Ct. at 973-74, 55 L.Ed.2d at

Kay

[10] In our opinion Congress intended to forbid racial,

color and language minority discrimination in all of the

myriad elections reached by section 2. The legislative

15. Mr. Justice Stevens’ dissent, which was joined by Chief

Justice Burger and Mr. Justice Rehnquist, in Sheffield, supra, sug-

gests another meaning to the term “State,” which he rejected for

construction of section 5, but which does accord with the purposes

of section 2. He suggested that action by the city might be con-

sidered as action of the State within the meaning of section 5. “It

might be reasonable,” he said “to treat the action of entities such

as Sheffield, which are within the jurisdiction of a covered state, as

‘state action,’ just as such governmental action would be regarded

as state action in a constitutional sense.” 435 U.S. at 144. 98 S.Ct.

at $85, 55 L.Ed.2d at 174. He rejected that reasoning, however,

because he was convinced that the limited definition of political sub-

division was intended to restrict the scope of federal power to re-

quire preclearance under section 5. This reading would make the

words “or political subdivision” in section 2 redundant. We would

be obliged to conclude either that it was included merely to em-

phasize the scope of the word “state” or that it was excess. This

reading, however, is not implausible. See, e. g., United States v. Saint

Landry Parish School Board, 601 F.2d 859, 866 (Sth Cir. 1979).

A-20

history of the 1975 amendments to the Act not only

emphasizes the discriminatory use of at-large districting

to dilute the votes of Mexican-Americans, but focuses in

particular on the use of such districting plans by Texas

school boards.’® When Congress has so plainly identified

a problem, and amended a statute to address it, we would

overstep the bounds of the judicial prerogative to in-

terpret arguably ambiguous language in such a manner

as to hold that Congress did not intend to embrace the

very predicament from which it sought to extricate the

victims. Therefore, we conclude that a school board is a

political subdivision for section 2 purposes.

For these reasons, we REVERSE and REMAND for

proceedings consistent with this opinion.

JAMES C. HILL, Circuit Judge, concurring specially:

In Part III of his opinion, my brother RUBIN has

ably attempted to resolve the conceded “ambiguity” of

Bolden, viz., whether the Fifteenth Amendment applies

to voting abuses of the sort here alleged. The entire dis-

cussion is dictum, however, because the panel—properly

—rests its holding on the Fourteenth Amendment. Since

the Voting Rights Act of 1965, § 2, 42 U.S.C.A. § 1973

(West Supp. 1980), as reenacted in 1975, derives from

the Fourteenth Amendment, and since all Justices in

16. The at-large structure, with accompanying variations of the

majority run-off, numbered place system, is used extensively

among the 40 largest cities in Texas. And, under state statute,

the countless school districts in Texas elect at-large with an

option to adopt the majority run-off, numbered place system.

These structures effectively deny Mexican-American and _ black

voters in Texas political access in terms of recruitment, nomina-

tion, election and ultimately, representation.

S.Rep. No. 94-295, 94th Cong., Ist Sess. 27-28 (1975) (emphasis

supplied). U.S. Code Cong. & Admin. News 1975, p. 794.

A-21

Bolden agreed that that Amendment reaches multimember

districts adopted “invidiously to minimize or cancel out

the voting potential of racial or ethnic minorities,” 100

S.Ct. at 1499 (plurality opinion), I concur in the result

of Part III.

I join the remainder of the panel opinion.

B-1

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

October Term, 19

No. 79-1498

D.C. Docket No. DR-77-CA-20

UNITED STATES OF AMERICA,

Plaintiff-A ppellant,

v.

UVALDE CONSOLIDATED INDEPENDENT

SCHOOL DISTRICT, ET AL..

Defendants-A ppellees.

Appeal from the United States District Court for

Western District of Texas

Before, HILL, RUBIN and ANDERSON, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Western District of Texas, and was argued by counsel:

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the order of the

District Court appealed from, in this cause be, and the

same is hereby reversed; and that this cause be and the

same is hereby remanded to the said District Court in

accordance with the opinion of this Court;

IT IS FURTHER ORDERED that defendants-appel-

lees pay to the Plaintiff-appellant the costs on appeal, to

be taxed by the Clerk of this Court.

September 2, 1980

HILL, Circuit Judge, concurring specially.

ISSUED AS MANDATE: October 17, 1980.

B-2

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

Tel. 504-589-6514

600 Camp Street

New Orleans, La. 70130

Gilbert F. Ganucheau

Clerk

October 9, 1980

TO ALL PARTIES LISTED BELOW:

No. 79-1498—USA v. UVALDE CONSOLIDATED

INDEPENDENT SCHOOL

DISTRICT, ET AL.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

By: /s/ SALLY HAYWARD

Deputy Clerk

cc: Messrs. David Marblestone

Drew S. Days, III

Walter Barnett

Mr. Jeffrey A. Davis

C-1

APPENDIX C

AMENDMENT XIV.—CITIZENSHIP; PRIVILEGES

AND IMMUNITIES; DUE PROCESS; EQUAL PRO-

TECTION; APPORTIONMENT OF REPRESENTA-

TION; DISQUALIFICATION OF OFFICERS; PUB-

LIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

D-1

APPENDIX D

AMENDMENT XV

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

vote shall not be denied or abridged by the United States

or by any State on acount of race, color, or previous

condition of servitude.

Section 2. The Congress shall have power to enforce

this article by appropriate legislation.

E-]

APPENDIX E

Article 42 § 1973

§ 1973. DENIAL OR ABRIDGEMENT OF RIGHT

TO VOTE ON ACCOUNT OF RACE OR COLOR

THROUGH VOTING QUALIFICATIONS OR PRE-

REQUISITES.

No voting qualification or prerequisite to voting, or

standard, practice, or procedure shall be imposed or ap-

plied by any State or political subdivision to deny or

abridge the right of any citizen of the United States to

vote on account of race or color, or in contravention of

the guarantees set forth in section 1973b(f)(2) of this

title.

PROOF OF SERVICE

I, JEFFREY A. DAVIS, the attorney for the Uvalde

Consolidated Independent School District, Cecil Arnim,

Jr., Billie Bailey, Robert L. Jacobs, J. S. Lanning, Jr.,

Dean P. Dimmitt, Dan David and Tommy Morriss and a

member of the Bar of the Supreme Court of the United

States, hereby certify that, on the 7th day of January,

1981, I served copies of the foregoing Writ of Certiorari

to the Supreme Court of the United States, on all the

parties thereto pursuant to Rule 33(b)(3)(b), as fol-

lows:

1. The Solicitor General, Department of Justice,

Washington, D.C. 20530; and

2. The Department of Justice to Drew Days, III,

Walter W. Barnett, David B. Marblestone, Wash-

ington, D.C. 20530.

It is further certified that all parties required to be

served have been served.

REYNOLDS» ALLEN, COOK,

PANNILL & HOOPER

Incorporated

16th Floor, 1100 Milam Bldg.

Houston, Texas 77002

(713) 651-1300

Attorneys for Uvalde Consoiidated

Independent School District, Cecil

Arnim, Jr., Billie Bailey, Robert

L. Jacobs, J. A. Lanning, Jr.,

Dean P. Dimmitt, Dan Davis

and Tommy Morriss

Filed on January 7, 1981, in the Supreme Court of the

United States.