Appellees Brief — Perkins v. Matthews

INDEX

Statement of Case 1

Summary of Argument 6

I(a). Do Municipal Annexations Violate Section 5... 7

I(b). Did the Election of Four Aldermen by a Ma-

jority Vote of the Entire Electorate of the Mu-

nicipality Violate Section 5 10

I(c). Does the Redesignation of Polling Places Come

Within Section 5 13

Il. The Municipal Elections Held in November,

1969, Should Not Be Set Aside Even Though

the Court May Find That the Acts Come Within

STII Ut sasussictckapinianieshictebaiadasvininebeinasastinenalidiitiicetiintansin 15

en a ae

TABLE OF CASES

Baker v. Carr, 369 US 186 12

Davis v. Mann, 377 US 678 —_—

Fairley v. Patterson, 393 US 544 (1969) —.0 15

Gomillion v. Lightfoot, 364 US 399 (1960) 8

Hadley v. Junior College District, US (Feb-

RSE KEN SESE Ae Ce 12

Louisiana v. United States, 380 US 145 (1965) —............ 12

Peak v. United States, 353 US 43 14

Reynolds v. Sims, 377 US 533 12, 16

Roman v. Sincock, 377 US 695 . 16

South Carolina v. Katzenback, 383 US 301 (1966) ........ 7,8

STATUTES

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

as amended 1962 10,11

Section 5, Voting Rights Act of 1965 ............. 6, 7, 8, 9, 10, 13

OG OEP Pe

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,

Untrep States District CouRT FOR THE

SOUTHERN DIsTRICT OF MISSISSIPPI

BRIEF FOR APPELLEES

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 alder-

man from each of the four wards into which the city is

2

divided, as shown on the map introduced in evidence at

the trial. (See App. 95). The ward lines were established

prior to November 1, 1964. (See paragraph 12 of the Stipu-

lation, App. 93).

The population of the city according to the 1960 census

was 9,707. The present estimated population 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.

Since the enactment of the Voting Rights Act of 1965,

the city has expanded its boundaries on three occasions,

in 1965, 1966 and 1968. These expansions were made pur-

suant to a long range plan formulated by the governing

authorities in late 1962 or early 1963, which provided for

the future growth and development of the city, giving pri-

ority to the annexation of an area to the south (1965),

then to the east (1966) and last to the north (1968). (See

paragraph 5 of the Stipulation, App. 91). Because of the

magnitude of the project and the expenditures involved,

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. (Paragraph 6 of the Stipulation, App. 92). 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, as

shown on the map introduced in evidence at the trial, App.

95, and as stated in paragraph 7 of the Stipulation, App.

92. 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, as stated in paragraph 8

of the Stipulation, App. 92. The municipality has expended

3

approximately $750,000.00 for utilities and sewerage im-

provements and extensions in these areas, as shown by

paragraph 9 of the Stipulation, App. 92, 93. The parties

stipulated and the lower Court found that the racial com-

position of the adult population of the annexed areas at the

time of annexation was:

Annexation Population Black White

. Tit. a seine i

1966? 92 28 64

1968* 120 8 112

Under Mississippi law, the City of Canton was re-

quired to hold its quadrennial elections in 1969 as follows:

first primary, May 13; second primary, May 20, and gen-

eral election, June 3. Prior to the elections the governing

authorities are required to designate 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 the

Madison County Herald, a newspaper published and of gen-

eral circulation in the City of Canton, Mississippi, as re-

quired 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, and prior to the filing of the complaint.

The laws of Mississippi governing municipal elections

provide for the election of aldermen by wards, but by the

election of them by a majority vote of the entire electorate

1. App. 66.

2. App. 77.

3. App. 66.

4

of the municipality. This statute is Miss. Code Ann,

(1942-Recompiled) Section 3374-36.

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.

(Paragraph 12 of the Stipulation, App. 92).

The municipal elections held in May and June of 1965

were not held in accordance with this statute in that in-

stead of electing one alderman at large and four aldermen,

one from each ward but by a majority vote of the entire

electorate. of the municipality, one alderman at large was

elected and four aldermen were elected, one from each

ward but by a majority vote of the electorate of the par-

ticular ward involved, as provided under the statute as it

existed prior to the 1962 amendment. Thus, the city un-

intentionally followed the old law instead of the 1962 stat-

ute. Despite this error, it is specifically pointed out to the

Court that the mayor and the alderman at large have al-

ways been elected by a majority vote of the entire electorate

of the municipality.

On May 1, 1969, twelve days prior to the first primary

election, the Appellants filed a complaint in the United

States District Court for the Southern District of Missis-

sippi, seeking to enjoin the 1969 primary and general elec-

tions on the grounds that the 1966 and 1968 annexations

and the change of polling places were within 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 Appellants 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.

5

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

States District Judge for the Southern District of Missis-

sippi, issued an order temporarily restraining the elections

until the complaint could be heard on its merits before 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. (App. 27-30).

The Appellees included the 1965 annexation as an is-

sue by way of their answer to the complaint. (Paragraph 8,

App. 22). 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 Hon-

orable Walter L. Nixon, Jr., District Judges, on the Section

5 issue. The Appellants introduced no evidence to support

the allegations in the complaint pertaining to discrimina-

tory purposes or practices in violation of the Fifteenth

Amendment. On July 17, 1969, the Court rendered its opin-

ion and on July 24, 1969, entered 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. (App. 31-37, 38).

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 elec-

tion, October 28, 1969.

LT IE EIT A CE

|

6

The Appellants then moved the District Court for g

stay of the elections pending appeal, which was denied

by order entered September 12, 1969. (App. 41, 42). The

Appellants next applied to this Court for a stay and in.

junction pending 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 com-

missioned to hold the offices to which elected and have

served in such capacities since November 1, 1969.

SUMMARY OF ARGUMENT

This appeal presents the following propositions to the

Court for decision:

I. Whether (a) the extension of municipal bound-

aries, (b) the election of municipal officers in accordance

with the one person, one vote doctrine, and (c) the redesig-

nation of polling places for good cause and with proper

notice given, fall within the purview of Section 5 of the

Voting Rights Act of 1965.

II. Whether, assuming the Appellees are in error in

their contention that the above stated matters do not come

within Section 5, should this Court require new elections

to be held.

Proposition I (a). In regard to the extension of the

municipal boundaries, the Appellees contend that this is a

normal and necessary function of growing municipalities,

and could not have been envisioned by Congress as heing

within Section 5, without granting unto the Attorney Gen-

eral and the United States Court of the District of Columbia

the absolute power, exercised arbitrarily or otherwise, to

control the rate and direction of municipal growth and de-

velopment.

7

Proposition I (b). The Appellants further contend

that Section 5 was never intended to result in requiring

a municipality to clearly violate this Court’s decisions re-

quiring the vote of all electors to count equally, or one

person, one vote, in the election of municipal governing

authorities. Accordingly, the election of the four alder-

men by a majority vote of the entire electorate of the

municipality is not a Section 5 question, particularly un-

der the facts of this case.

Proposition I (c). The Appellees next contend that

surely Congress could not have intended to hold elections

in abeyance simply because the last used polling places

are found to be unavailable, and new ones must be se-

lected. Thus, Section 5 does not apply to redesignation of

polling places for a proper purpose.

Proposition II. The Appellees contend that even if

the Court should decide that all of the above contentions

are in error, the elections held in October, 1969, should not

be voided. To do so would unjustly penalize a municipal-

ity and its taxpayers, which has admittedly acted in good

faith, by causing additional expensive and most im-

portantly causing an unwarranted disruption of the

orderly conduct of municipal government.

ARGUMENT

I.(a)

Do Municipal Annexations Violate Section 5.

The constitutionality of the Voting Rights Act of 1965

has been clearly and definitely established by this Court.

South Carolina v. Katzenback, 383 US 301 (1966), and, of

course, the Appellees raise no question in that regard.

However, it defies the imagination to attempt to con-

jure up a set of facts such as those involved in this case

which more cogently reveal the pitfalls of Section 5 of the

Voting Rights Act of 1965 as pointed out by Mr. Justice

Black in his dissent in Katzenback, supra:

“Section 5. by providing that some of the States can-

not pass state laws or adopt state constitutional amend-

ments without first being compelled to beg federal

authorities to approve their policies, so distorts our

constitutional structure of goverrment as to render

any distinction drawn in the Constitution between

state and federal power almost meaningless.”

“IT cannot help but believe that the inevitable effect

of any such law which forces anv one of the States

to entreat federal authorities in faraway places for

approval of local laws before they can become effective

is to create the impression that the State or States

treated in this way are little more than conquered

provinces.”

“A federal law which assumes the power to compel

the States to submit in advance any proposed legis-

lation they have for approval by federal agents ap-

proaches dangerously near to wiping the States out

as useful and effective units in the government of

our country. I cannot agree to any constitutional in-

terpretation that leads inevitably to such a result.”

“T cannot agree with the Court that Congress—denied

a power in itself to veto a state law—can delegate

this same power to the Attorney General or the Dis-

trict Court for the District of Columbia. For the ef-

fect on the States is the same in both cases—they

cannot pass their laws without sending their agents

to the City of Washington to plead to federal officials

for their advance approval.”

Certainly if a discriminatory design or purpose was

shown to exist, the rule of Gomillion v. Lightfoot, 364 US

399 (1960) and the many other decisions of this Court deal-

ing with purely Fifteenth Amendment matters would ap-

ply. But this is not the case here. There is no evidence

that even remotely infers that the three expansions of

municipal boundaries had or now have any discriminatory

design or purpose. The stipulation between the parties

clearly establishes otherwise. (Paragraphs 5, 6, 7, 8, 9, App.

91, 92, 93).

The Appellants represent to the Court that these ex-

pansions are manifestations of a sinister plot to discrim-

inate against the black citizens of Canton. The evidence

does not support them. Therefore, they say, that a mere

possibility exists that these expansions may remotely af-

fect somebody’s vote at some time.

However, the underlying and basic fact is that all

municipal corporations, regardless of size, are faced with

this immutable principle: It must either grow, develop

and expand or it must remain static, stagnate and die.

The City of Canton for the benefit and welfare of all

citizens chose the former.

Appellees contend and respectfully submit that Con-

gress, by the enactment of Section 5, did not intend to

penalize progress and development of municipalities.

Neither did it intend to make the Attorney’ General or

the District Court of the District of Columbia, the final

arbiter over the rate, extent and direction of municipal

growth and expansion.

Also, Appellees respectfully submit, that the annexa-

tions are established by the evidence to have been required

by the normal and orderly growth of a relatively small but

progressive municipality, and not a sham to discriminate

against the Appellants. Indeed, the city’s expenditure of a

sum in excess of $750,000.00, and the cost of other municipal

services in the annexed areas, confirms this.

Appellees point out that an annexation in and of it-

self has no effect whatsoever upon the number of qualified

we re mre

10

electors in the municipality or racial composition of the

electorate. The inhabitants of an annexed area must stil]

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 annexa-

tions cannot he seriously said to constitute “a voting quali-

fication or pir stequisite to voting or standard, practice or

procedure with respect to voting”.

To hold that these undisputedly non-discriminatory an-

nexations come within Section 5 and are therefore void,

would unleash numerous and insurmountable problems.

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. To do otherwise, would inevitably lead

to the absurd conclusion which must surely follow: That

every act of the municipality which may directly or in-

directly result in population growth, i.e. industrialization,

renewal, must first be approved by the Federal Govern-

ment.

I.(b)

Did the Election of Four Aldermen by a Majority Vote

of the Entire Electorate of the Municipality Violate

Section Five.

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

approved May 24, 1962, provides for the number and

method of election of the Board of Aldermen in cities with

11

a population of less than 10,000 population according to

the last available census which was the 1960 census at the

time of the elections in question. Canton falls within this

category. The code section is as follows:

§ 3374-36. Number of aldermen and wards—selection

of aldermen. In all municipalities having a popula-

tion 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 divided

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

from each ward and one from the municipality at

large. (Emphasis supplied). 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 qualified electors of such

municipality voting in a special election called for

that purpose. All aldermen shall be selected by vote

of the entire electorate of the municipality. (Empha-

sis supplied). Those municipalities which determine

to select one alderman 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. (Emphasis supplied).

The Appellees admit that this statute was not fol-

lowed in the 1965 elections, but was followed in the 1969

elections. In both elections the mayor and alderman at

large were elected by a majority vote of the entire munic-

ipal electorate. However, in the 1965 election the other

four aldermen were elected one from each ward by a ma-

9 Ee reer

‘

'

’

}

a

’

'

12

jority vote of the ward’s electorate rather than at large

This was not done intentionally or by design, but through

sheer mistake or ignorance of the law. That it was done

is a fact, but just as factual is that the record in this case

does not suggest to say nothing of infer that this “was

a sudden adherence to previously ignored laws as a dis-

criminatory device” so as to come within the rule of the

“freeze doctrine” cases such as Louisiana v. United States,

380 US 145 (1965).

The fact is that this was a bona fide effort by the

City to not only comply with the Laws of Mississippi, but

also to comply with the teachings of this Court as stated

in Baker v. Carr, 369 US 186, and Reynolds v. Sims, 377

US 533, and the recent case of Hadley v. Junior College

District, -....... ae (February 25, 1970) in which the

Court speaking through Mr. Justice Black said in part:

“We therefore held today that as a general rule, when-

ever a state or local government decides to select per-

sons by popular election to perform governmental

functions, the Equal Protection Clause of the Four-

teenth Amendment requires that each qualified voter

must be given an equa! opportunity to participate in

that election, and when members of an elected body

are chosen from separate districts, each district must

be established on a basis which will insure, as far as

is practicable, that equal numbers of voters can vote

for proportionally equal numbers of officials.”

“In holding that the guarantee of equal voting strength

for each voter applies in all elections of governmental

officials, we do not feel that the States will be in-

hibited in finding ways to insure that legitimate polit-

ical goals of representation are achieved. We have

previously upheld against constitutional challenge an

election scheme which required that candidates be

residents of certain districts which did not contain

equal numbers of people, Dusch v. Davis, 387 US 112

13

(1967). Since all the officials in that case were elected

at large, the right of each voter was given equal treat-

ment.”

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. It would be difficult indeed to dis-

criminate against a majority of the electorate by extend-

ing 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

contention is readily confirmed by common sense and the

record does not suggest otherwise.

The Appellees submit that it is inconceivable that Con-

gress could have intended Section 5 as a vehicle to thwart

the “one person-one vote” rule repeatedly laid down by this

Court, there being no discriminatory purpose or design

shown to exist.

Lic)

Does the Redesignation of Polling Places Come Within

Section 5.

It is practically impossible to hold an election of any

kind without a polling place. It is usually desirable that

polling places be inside buildings with adequate shelter,

space, accommodations, and parking areas, to encourage

voter participation. It is also well known that when the

owners of private property, used in the past for polling

places, refuse future access for that purpose new polling

places must be selected.

It is readily admitted that the polling places used in

the 1969 elections were not the ones used in the 1965 elec-

tions. (Paragraph 13 of the Stipulation, App. 93). How-

sen ERENT enrermmene

14

ever, Appellees submit that the polling places were redes.

ignated for a good and proper purpose and that their loca-

tion was amply publicized well in advance of the elections,

In considering this point, the Court should note that

at the time of the 1965 elections, the city had approxi-

mately 2,500 qualified electors. In 1969 it had almost

6,000. .

The polling places were changed for reasons of neces-

city and for the convenience of the voters. The city is

now and was on November 1, 1964, divided into four

wards. (Paragraph 12 of the Stipulation, App. 93). The

ward lines have not been changed since 1963, and are

shown on the map at App. 95. 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 security reasons and the disruptive effect on business.

(App. 80). 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 accommodate the increased number of

voters or voting machines, which were to be used for the

first time, replacing paper ballots previously used. (App.

79). Therefore, these two were moved to insure an

orderly and efficient election for the convenience 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

their duties to the electorate of insuring conveniently

accessible, spacious, and efficient facilities so that all who

choose to vote might vote without undue delay.

For as Mr. Justice Douglas once said:

“Common sense often makes good law”. Peak v.

United States, 353 US 43, 46.

15

Clearly, a matter such as this, when the only alterna-

tive was to hold the election in indefinite abeyance, was

not intended by Congress to be covered by Section 5, and

the District Court did not err in so holding.

Il.

The Municipal Elections Held in November, 1969,

Should Not Be Set Aside Even Though the Court May

Find That the Acts Come Within Section Five.

After judgment of the District Court, the Appellants

applied to the Court for a stay of the elections pending

appeal. This motion was denied. The Appellants next ap-

plied to Mr. Justice Black for a stay of the elections. This

also was denied.

Thereafter, acting in good faith and in the belief that

the law so required, the city proceeded to hold its primary

and general elections. The officers elected have been

duly certified and commissioned and have conducted the

governmental affairs of the city since November 1, 1969.

In addition the questions here presented are even more

novel and complex than the issues in Fairley v. Patter-

son, 393 US 544 (1969), in which the Court refused to or-

der new elections and stated:

“The Solicitor General has also urged us to order new

elections, if the State does not promptly institute § 5

approval proceedings. We decline to take corrective

action of such consequence, however. These § 5 cov-

erage questions involve complex issues of first impres-

sion—issues subject to rational disagreement. The

state enactments were not so clearly subject to § 5 that

the Appellee’s failure to submit them for approval con-

stituted deliberate defiance of the Act. Moreover, the

discriminatory purpose or effect of these statutes, if

any, has not been determined by any Court.”

eC ee —

SO re terre mot ne rem

16

To order new elections, even if the Appellees are in

error in the contentions herein presented, would seriously

impair the orderly and efficient conduct of the municipal

government. This is in accordance with the teachings of

this Court in Sims v. Reynolds, supra, Roman v. Sincock,

377 US 695 and Davis v. Mann, 377 US 678.

CONCLUSION

Appellees therefore respectfully submit that the appeal

must be dismissed for lack of jurisdiction or affirm the de-

cision of the District Court of Three Judges for the Southern

District of Mississippi.

Respectfully submitted,

A. F. SUMMER

Attorney General of the State

of Mississippi

WiLtiamM 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 Appellees