# Petition — Uvalde Consolidated Independent School District v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 1002

## Text

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
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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

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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

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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.

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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.

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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.”

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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).”

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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

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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-

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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-

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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.

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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).

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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

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“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

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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.

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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.

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1201%3A1. Public record. Not legal advice.