Motion — Perkins v. Matthews

Motion to Affirm

Questions Presented

Statement of Case

Oo Wn N ND

The Annexations

The Polling Places

The Litigation

| Argument—

I. The Annexation 7

II. The Polling Places 9

Ill. Method of Electing the Aldermen 10

Conclusion 11

| TABLE OF CASES

Gomillion v. Lightfoot, 364 U.S. 399 (1960) .................... 8

Louisiana v. United States, 380 U.S. 145 (1965) -.......... 10

STATUTES

Miss. Code Ann. (1942-Recompiled) Section 3374-36,

as amended 1962 ..... 4,6

_ Rule 16, Rules of the United States Supreme Court... 1

~ Section 5, Voting Rights Act of 1965 ................ 2, 6, 7, 8, 9, 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 670

ERNEST PERKINS, et al.,

Appellants,

Vs.

L. S. MATTHEWS, Mayor of the City

of Canton, et al.,

Appellees.

On APPEAL FROM A DISTRICT COURT OF THREE JUDGES,

UNITED STATES District COURT FOR THE

SOUTHERN DISTRICT OF MISSISSIPPI

MOTION TO AFFIRM

Pursuant to Rule 16 of the Rules of this Court, L. S.

Matthews, Mayor of the City of Canton, et al., Appellees,

moves that the judgment of the District Court be affirmed.

QUESTIONS PRESENTED

1. Whether the District Court erred:

(a) In finding that the extension and enlargement

of the corporate boundaries of a municipality does not

come within Section 5 of the Voting Rights Act of 1965,

(b) In finding that the redesignation of polling places

for the municipal primary and general elections does not

come within Section 5 of the Voting Rights Act of 1965,

(c) In finding that the election of aldermen from

wards but by a majority vote of the entire electorate of the

municipality, pursuant to a 1962 statute of the State of

Mississippi, does not come within Section 5 of the Voting

Rights Act of 1965.

STATEMENT OF CASE

The City of Canton, Mississippi, is a code charter

municipality under the Laws of the State of Mississippi,

and operates under an aldermanic form of government con-

sisting of a mayor, an alderman at large and one alderman

from each of the four wards into which the city is divided.

The population of the city according to the 1960 Census

was 9,707. The estimated population at the time of the

filing of the suit in question is 12,000. At the time of the

filing of the suit there were 5,995 qualified electors in the

city of which 3,042 were black and 2,953 were white.

THE ANNEXATIONS

In the later part of 1962, or early 1963, the governing

authorities formulated a long range plan for boundary ex-

tensions, for the future growth and development of the

city, giving priority to the annexation of an area to the

south, then to the east and last to the north. Because of

3

the magnitude of the project and the expenditures in-

volved, the annexations could not be made at one time but

only over a period of years, and only after the expenditure

of approximately $400,000.00 to extend and improve the

city’s sanitary sewerage collection and disposal system.

The necessary sewerage improvements were completed in

early 1964. In 1965 the city annexed the area to the south,

in 1966 the area to the east and in 1968, the area to the

north, all as shown on the map furnished by Appellees, but

introduced in evidence in this cause by agreement as Ap-

pellants-Plaintiffs Exhibit 2, at the June 2nd hearing be-

fore the Three-Judge District Court. The annexations are

also set forth in paragraphs 5, 6 and 7 of the Stipulation

introduced as Appellants-Plaintiff’s Exhibit 1 at that hear-

ing. Each of such annexations were done in accordance

with the Laws of the State of Mississippi, including the

ratification and approval thereof by the Chancery Court

of Madison County, Mississippi. The municipality has ex-

pended approximately $750,000.00 for utilities and sewer-

age improvements and extensions in these areas, as shown

by paragraphs 8 and 9 of the Stipulation. The parties stipu-

lated and the lower court found that the racial composition

of the adult population of the annexed areas at the time

of annexation was:

Annexation Population Black White

1965 46 46 0

1966 92 28 64

1968 120 8 112

THE POLLING PLACES

In April of 1969, the Mayor and Board of Aldermen,

as required by law, adopted a resolution designating the

polling places to be used in the 1969 municipal primary

and general elections. This resolution was published in

4

the Madison County Herald, a newspaper published and of

general circulation in the City of Canton, Mississippi, as

required by law. In addition, the location of the polling

places was widely advertised as a news item in the paper

for several weeks. The polling places so designated were

different from the ones used at the 1965 elections, which

were the last municipal elections held after November 1,

1964, prior to the filing of the complaint in this suit.

In regard to the election of aldermen, Miss. Code Ann,

(1942-Recormpiled) Section 3374-36, approved May 24

1962, provides:

§ 3374-36. Number of aldermen and wards-selec-

tion of aldermen. In all municipalities having a pop-

ulation of less than ten thousand (10,000), according

to the latest available Federal Census, there shall be

five (5) aldermen, which aldermen may be elected

from the municipality at large, or in the discretion of

the municipal authority, the municipality may be di-

vided into four (4) wards, with one alderman to be

selected from each ward and one from the municipal-

ity at large. On a petition of twenty per cent (20%)

of the qualified electors of any such municipality, the

provisions of this Act as to whether or not the alder-

men shall be elected from wards or from the city at

large shall be determined by the vote of the majority

of such qualified electors of such municipality voting

in a special election called for that purpose. All

aldermen shall be selected by vote of the entire elec-

torate of the municipality. Those municipalities which

determine to select one aldermen from each of the

four (4) wards shall select one from the candidates

for alderman from each particular ward who shall be

a resident of said ward by majority vote of the entire

electorate of the municipality.

In all municipalities having a population of ten

thousand (10,000) or more, according to the latest

available Federal Census, there shall be seven (7) al-

dermen, which aldermen may be elected from the

5

municipality at large, or in the discretion of the mu-

nicipal authority, the municipality may be divided into

six (6) wards, with one alderman to be selected from

each ward and one from the municipality at large.

On a petition of twenty per cent (20%) of the qualified

electors of any such municipality, the provisions of

this Act as to whether or not the aldermen shall be

elected from wards or from the city at large shall be

determined by the vote of the majority of such quali-

fied electors of such municipality voting in a special

election called for that purpose. This bill in no way

affects the number of aldermen, councilmen, or com-

missioners of any city operating under a special

charter. All aldermen shall be selected by vote of

the entire electorate of the municipality. Those mu-

nicipalities which determine to select one alderman

from each ward shall select one of the candidates for

alderman from each particular ward by majority vote

of the entire electorate of the municipality.

Prior to the passage of the Voting Rights Act of 1965,

the city elected to be divided into four wards. The ward

lines have not been changed since November 1, 1964.

Throvgh error the 1965 elections were not held in ac-

cordance with this siatute in that instead of electing four

aldermen, one from each ward but by a majority vote

of the entire electorate of the municipality, four alder-

men were elected, one from each ward but by a majority

vote of the electorate of the particular ward involved, as

provided under the statute as it existed prior to the 1962

amendment. Thus, the city unintentionally followed the

old law instead of the 1962 statute.

THE LITIGATION

The quadrennial municipal primaries were required

by law to be held on May 13, and 20, 1969, and the general

election on June 3, 1969.

On May 1, 1969, the Appellants filed a complaint in

the United States District Court for the Southern District

of Mississippi, seeking to enjoin the 1969 primary and

general elections on the grounds that the 1966 and 1968

annexations and the change of polling places were within

the Section 5 of the Voting Rights Act of 1965 and had

not been approved either by the United States Attorney

General or by a declaratory judgment of the United States

District Court for the District of Columbia. The Appel-

lants requested that the matter be heard by a Court of

three judges and prayed for a temporary restraining order

until the Court could be empaneled and convened.

On May 9, 1969, Honorable Walter L. Nixon, United

States District Judge for the Southern District of Mis-

sissippi, issued an order temporarily restraining the elec-

tions until the complaint could be heard on its merits be

fore a Three-Judge Court.

On May 30, 1969, the complaint was amended to in-

clude the method of electing the four aldermen as pre

scribed by Miss. Code Ann. (1942-Recompiled) Section

3374-36, as amended in 1962, on the ground that it had not

been followed in past elections.

The Appellee-Defendants included the 1965 annexa-

tion as an issue by way of their answer to the complaint.

The original and amended complaint neglected to challenge

this annexation, which was the first under the city’s long

range boundary extension program and which included

only black residents.

On June 2, 1969, the case was heard on its merits be

fore a Three-Judge Court composed of Honorable J. P.

Coleman, Circuit Judge and Honorable W. H. Cox and

Honorable Walter L. Nixon, Jr., District Judges, on the

Section 5 issue. The Appellants introduced no evidence

7

to support the allegations in the complaint pertaining to

violations of the Fifteenth Amendment. On July 17, 1969,

the Court rendered its opinion and on July 24, 1969, en-

tered its judgment, dismissing the complaint, and finding

that the issues raised by the complaint, as amended, did

not come within Section 5 of the Voting Rights Act of

1965.

Subsequent thereto, the governing authorities of the

city, reset the elections as follows: first primary, October

7, 1969, second primary, October 14, 1969, and general

election, October 28, 1969.

The Appellants then moved the District Court for a

stay of the elections pending appeal, which was denied

by order entered September 12, 1969. The Appellants

next applied to this Court for a stay and injunction pend-

ing appeal, which was denied on October 1, 1969, by Mr.

Justice Black.

Accordingly, the municipal primary and general elec-

tions were held on the above stated dates, and officers

were elected. They have been properly qualified and

commissioned to hold the offices to which elected and

have served in such capacities since November 1, 1969.

ARGUMENT

I.

The Annexation

There is no evidence in the record that the three an-

nexations involved had any discriminatory purpose or ef-

fect. In fact, the Stipulation introduced in evidence un-

disputedly establishes otherwise, as does the Appellants’

declination to pursue their original contention that a Fif-

teenth Amendment issue was involved. Therefore, the case

8

of Gomillion v. Lightfoot, 364 U.S. 399 (1960), is no au-

thority for the contentions of the Appellants.

Also, Appellants respectfully submit, that the annexa-

tions are established by the evidence to have been re.

quired by the normal and orderly growth of a relatively

small but progressive municipality, and not a sham to dis-

criminate against the Appellants. Indeed, the city’s ex-

penditure of a sum in excess of $750,000.00, and the cost

of other municipal services in the annexed areas, confirms

this.

Therefore, the question is did Congress intend to in-

clude municipal expansions, admittedly non-discrimina-

tory, within Section 5? Or stated otherwise, is the growth,

and development of every municipality within the few

states covered by the Voting Rights Act of 1965 subject

to the discretion of the Attorney General or the District

Court for the District of Columbia? Surely not. National

policy is to promote growth, not stifle it, to encourage

progress, not stagnation. In this respect, Appellees point

out that an annexation in and of itself has no effect what-

soever upon the number of qualified electors in the munic-

ipality or racial composition of the electorate. The in-

habitants of an annexed area must still fulfill the residency

requirements in order to register to vote, and even then

may never choose to do so. If they do choose to register,

it is a personal decision and act, not an act of any political

subdivision. Therefore, the annexations cannot be seri-

ously said to constitute “a voting qualification or prereq-

uisite to voting or standard, practice or procedure with

respect to voting”.

To hold that these undisputedly non-discriminatory

annexations come within Section 5 and are therefore void,

would unleash numerous and insurmountable problems.

9

Among them are the status of sales and ad valorem taxes

collected over the years, in the annexed area, the juris-

diction of the police and fire departments, the effect on

reduced fire insurance rates in the area, the status of

municipal bonds issued for improvements in these areas,

the status of zoning, building, housing and plumbing codes.

Thus, it is submitted that the District Court was cor-

rect in deciding that the annexations are not within the

scope of Section 5.

Il.

The Polling Places

The polling places were changed for reasons of neces-

sity and convenience to the voters. As previously stated

the City is now and was on November 1, 1964, divided

into four wards. The ward lines have not been changed

since 1963, and are shown on the map introduced in evi-

dence below as Appellants-Plaintiff’s Exhibit 2. Under

Mississippi Law, there must be a polling place within each

of the four wards. The polling places for Wards II and III

at the 1965 elections were located in bank lobbies. The

owners would not permit their use at the 1969 elections

because of the disruptive effect on business. These polls

had to be moved, so new polling places were designated. The

polling places for Wards I and II used in the 1965 elections

did not have adequate parking facilities or space to accom-

modate the increased number of voters or voting machines,

which were to be used for the first time, replacing paper

ballots previously used. Therefore, these two were moved

to insure an orderly and efficient election for the conven-

ience of the electors. Thus, the change in polling places was

a matter of necessity, and not of choice. There was nothing

else the election officials could do and faithfully discharge

10

their duties to the electorate of insuring conveniently ac-

cessible, spacious, and efficient facilities so that all who

choose to vote might vote without undue delay.

Clearly such minor election procedures as this was not

intended by Congress to be covered by Section 5, and the

District Court did not err in so holding.

ITI.

Method of Electing the Aldermen

Through mistake, misrepresentation, ignorance or a

combination thereof, the 1965 primary and general elec-

tions of the aldermen from the four wards were not held

as required by the 1962 statute. In 1969, the city sought

to rectify this situation and to follow the law in keeping

with the “one-man-one-vote” rulings of this Court. It

should be pointed out that a majority of the voters were

black. Thus, the city’s action in effect extended the black

majority to all four wards rather than confining it to two

wards as it would have been under the method followed in

the 1965 elections. There is no evidence in the record to

even suggest that this change “was a sudden adherence

to previously ignored laws as a discriminatory device” so

as to come within the “Freeze Doctrine” cases such as

Louisiana v. United States, 380 U.S. 145 (1965). To the

contrary, it would be difficult indeed to discriminate

against a majority of the electorate by extending voting

power rather than confining it. The effort was clearly

made in good faith to correct a past mistake and not used

as a discriminatory device. This conclusion is readily con-

firmed by common sense and the record does not suggest

otherwise.

11

CONCLUSION

It is earnestly urged that the decision of the Three-

Judge District Court is correct and that no substantial

question on the merits has been raised or presented by

the jurisdictional statement filed herein by Appellants.

Therefore, the judgment of the District Court should be

affirmed.

Respectfully submitted,

A. F. SUMMER

Attorney General of the State

of Mississippi

Wiuram A. ALLAIN

Assistant Attorney General of

the State of Mississippi

P.O. Box 220

Jackson, Mississippi

R. L. Goza

114 W. Center Street

Canton, Mississippi 39046

Attorneys for the Appellees