# Motion — Perkins v. Matthews

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0220%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1971
- **Citation:** 400 U.S. 379

## Text

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0220%3A05. Public record. Not legal advice.