PERKINS v. MATTHEWS
Legal provision: Voting Rights Act of 1965
Argument of Armand Derfner
Chief Justice Warren E. Burger: The next case on for arguments is Perkins against Matthews.
Mr. Derfner you may proceed whenever you are ready.
Mr. Armand Derfner: Mr. Chief Justice, and may it please the Court.
This is an appeal under Section 5 of the Voting Rights Acts of 1965 of a three-judge court in the Southern District of Mississippi, a fourth such appeal in three terms of court.
First three having decided by this Court, reversing the lower court in the case of Allen versus State Board of Elections.
I believe the question on the merits here is quite simple and I plan to devote about a small portion of the argument in demonstrating the court below was wrong on all three of the questions that it faced.
The vital question in this case is a question for relief and that question goes to the heart of whether Section 5 of the Voting Rights Acts of 1965 is to be permitted to occupy the critical place that Congress intended for it in 1965 and reaffirmed in the strongest possible terms when it extended the Act in 1970.
To advert very briefly to the facts, the City of Canton in Mississippi for its municipal elections in 1969 adopted three changes from the procedure that it had governed the prior municipal election in 1965.
They went from individual board elections to at large elections in a town in which there are two wards that are very heavily black.
They moved the polling places, in one case from the town square to an old jail and in another case from the middle of the black neighborhood and heavily black ward to a point just adjacent to a newly annexed white neighborhood, and third, they extended the boundaries of the town in such a way as to add several hundred net additional white residents, that is several hundred more white residents than black residents.
Justice Harry A. Blackmun: Which are the black wards?
Mr. Armand Derfner: wards, Mr. Justice Blackmun, are 3 and 4 and my brief gives, I believe the record too gives the registration figures for all the wards.
All these changes are familiar ones.
They are all changes of the type that had been submitted by other jurisdictions to the Attorney General as can be shown by looking at page 309 of the house hearings.
They are all changes of the type that Congress mentioned many, many times in the debates in 1969 and 1970 on the extension.
The best example of that is perhaps Congressman McCulloch who was perhaps the leading minority member in the House, involved both in the 1965 Act and 1970 extension.
He was in each of these three kinds of changes as types they were covered by the voting by Section 5.
Judge Nixon, the single judge, on the basis of the boundary extension alone granted an injunction against having the election.
The case then went forward and was decided by the three-judge court which held without quite saying ever, without saying actually that any of these changes that was not covered by Section 5, it went into the motives of the changes which this Court has conclusively held are to be decided only by the Attorney General or by the District of Columbia Court and pronounced these changes did not violate Section 5.
Unknown Speaker: (Inaudible)
Mr. Armand Derfner: Yes, of course we do.
What I am saying, however is that, that is not a question to be decided in this case.
This Court in the Allen case made it clear and I think Justice Harlan asked that precise question there that that is not a question we have to decide now or have to prove.
All we have to prove is, if there was a change and there is an adequate procedure set up by Section 5 to determine what the good faith or lack thereof was.
Chief Justice Warren E. Burger: But if it has the effect and that has the effect of altering these lines invidiously in these balances, then you don't ever get to the question of motive, or you don't need to, is that right?
Mr. Armand Derfner: That's right.
In fact, it doesn't even have to alter these lines invidiously.
All it has to do is alter these lines and at that point Congress says that is a matter that you cannot take up any place, but with the Attorney General of the United States or the United States District Court for the District of Columbia.
That ends the matter in a Section 5 case.
The court below had only to decide as Judge Nixon said when he granted the temporary restraining order, I have to decide, was there a change?
The answer is, yes.
Was it submitted?
The answer is, no.
At that point the matter is taken out of my hands and the election cannot go forward on this basis.
Chief Justice Warren E. Burger: What I meant by using the term invidiously is that the question never arises anywhere unless someone thinks it is an invidious --
Mr. Armand Derfner: Certainly, we wouldn't be suing on meaningless cases.
Justice Harry A. Blackmun: If I am correct in my assumption, the three-judge court did not cite Allen?
Mr. Armand Derfner: I believe they did not cite.
They were certainly aware of it, it in fact having come from -- well three of those cases having come from that same court.
So I say that the merits are easy question.
The vital question is what is the relief to be given in this case, and on a very simple plain, that is an easy question too.
The very simple plain says there must be a new election, and we maintain there must be a new election and that there can't be any question about that.
The law is clear in election cases, in the cases such as Hamer versus Campbell in the Fifth Circuit, United States versus Barbara County, a case in the District Court.
Cases such as Hadnott versus Amos for that example, that if you assert you remedies in timely fashion in a voting case, particularly, in a Fifteenth Amendment case, but certainly equally well in a Fourteenth Amendment case such as a property tax cases or more recently apportionment cases, then if it develops after the election has being held -- that you didn't get the relief and election is held.
If it develops thereafter that you are entitled to have an injunction, that you are entitled to have the election set aside.
I think this court --
Justice Potter Stewart: Have we done that in reapportionment cases?
Mr. Armand Derfner: I am not certain that this Court has done that.
This Court has certainly indicated that could be done and lower courts have done it.
I know that Fifth Circuit has done it in the case coming from Monroe County, Mississippi.
Unknown Speaker: Well, this Court has refused to act on it.
Mr. Armand Derfner: This Court has refused to do it.
In Allen, if you are talking about this case, this Court said specifically that these Section 5 question, coverage questions involve complex issues of first impression.
Issues subject to rationale disagreement.
The state enactments were not so clearly subject to Section 5 and so forth.
Therefore, we give only prospective affect to our decision.
I think that was a clear indication as clear -- perhaps as clear as the indication as the explicit language in the tax cases that thenceforward, jurisdiction would have been on notice that if they didn't submit the proper remedy was a new election.
And that is a traditional, as I say, basically it's come to be a traditional equitable remedy in election cases and I think that the ordinary rule there would be that there should a new election unless there are special circumstances.
There were special circumstances in Allen as they are often are when a court, and this court especially decides a case involving a whole new body of law.
There are no special circumstances in this case and there is no reason that the City of Canton has advanced or could advance for why it should not be governed by the general rule.
Unknown Speaker: What are the terms for beyond the case?
Mr. Armand Derfner: The terms are four years.
They were to have begun in July of 1969.
They will close in July of 1973.
The election in this case did take place in October, the primaries and the general election in October, 1969.
The basic question, and this is the --
Justice Potter Stewart: Now how can you, just as a practical matter how can you have, if you had an election, how can you compel these people who have refused to have their property used as a polling places, to have their property used as polling places?
That's private property.
Mr. Armand Derfner: As to that particular --
Justice Potter Stewart: Particularly, the property of bank I think was --
Mr. Armand Derfner: Right, but a couple of them were public places.
I think two of them -- at least one of them was in a court house and the other one was also the public place.
I certainly admit that there would in some cases have to be an impossibility exception indicating that there might have be a change and if that was so, if the city could come forward and show that it was totally impossible, not simply impractical or inadvisable, but impossible to hold an election in a certain place or impossible to do a certain thing, then they could submit that to the Attorney General, get a quick approval and put that change into effect.
I would limit that to the very barest minimum in impossibility cases.
Justice Potter Stewart: Well, now you have three -- there are three factors here about which you complaint.
One is the changing of the polling places.
The other one is changing to an at-large election of the ward, who had previously been elected by wards, and the third is the annexation of a territory and its people to the city and then the new election, these people have been annexed to the city without be allowed to vote?
Mr. Armand Derfner: That's precisely the difficult question facing this Court and that's precisely the answer I give, Your Honor.
Justice Potter Stewart: They would not be allowed to vote?
Mr. Armand Derfner: Not be allowed to vote.
In other words, we say that the new election must take place immediately or within 30 or 60 days.
Only as much time as is required to prepare ballots and do the things that are necessary for a election, get out notice and so forth and that election must be conducted under the rules that applied at -- under the valid rules that applied at the time the election should have taken place.
Justice Potter Stewart: And with respect to the second one I mentioned there should be at-large -- there should be a ward election, even though that violates the state law?
Mr. Armand Derfner: That is correct, and if I may just take a few moments, I will explain precisely why I take that position.
The short answer, why that position must be taken is if any other position is taken, there will be no Section 5 in the Act.
Section 5 will have become almost totally meaningless.
The only change it will have resulted in is a significant change, yes, shifting the burden of proof in some of this cases.
Chief Justice Warren E. Burger: Well it'd be at least as good as a declaratory judgment, wouldn't it?
Mr. Armand Derfner: At least as good and no better and the declaratory judgment doesn't give us a new election.
Quite frankly, I think in this case what we have is the advantage of a Congress that in 1969 and 1970 debated extensively, several 100 pages of a congressional record and at least 1200 to 1500 pages of hearings of reports, what should happen to the Voting Rights Act of 1965.
I think it's a fair statement, that the bulk of that debate aside from question such -- involving new question such as the general banning of the literacy test and the 18-year old vote and the residence and absentee provision, the bulk of the argument dealt with Section 5 and the debate is replete with discussion over the importance of Section 5.
Basically the history is quite clear, a Bill was introduced which I believe the record would show had administration backing, the justice department testified for it, a Bill was introduced which would have abolished the pre-clearance procedures of Section 5.
This Bill was supported in critical testimony by the Attorney General and especially by Deputy Assistant Attorney General David Norman.
In his testimony, it appears at pages 500 and following of the senate hearings.
At those hearings, both the Attorney General and Mr. Norman testified explicitly that section -- that there was no need for Section 5 because in fact all Section 5 did was to provide the following remedy.
This is explicitly stated by Mr. Norman, Section 5 provides only the remedy that if you win a Section 5 case, then the jurisdiction that didn't submit the matter to the Attorney General or the District of Columbia Court must then submit it.
I think the congressional debates and the outcome of what happened in Congress is as clear reputation of that position as is possible to take.
And if I might just, at this point discuss very briefly the legislative history, and I might say that much of this is not specifically cited in the brief.
There were numerous statements in Congress dealing with the importance of Section 5.
There was no report from the Senate Judiciary Committee or from any Subcommittee because the Bill had been submitted, the extension Bill had been submitted under rule requiring a report or requiring to be reported out by April 1st, there was no time for a report.
There was however a joint statement signed by ten senators who constituted the majority of the 17.
This report is in the congressional record and is at pages 2756 and following.
It's a monthly report, discusses Section 5 in great detail and has three italicized sentences throughout the whole report, each of which italicized sentences refers to Section 5.
As an example, this section, it's on page 2756, this section in effect freezes election procedures in the covered areas unless the changes can be shown to be non-discriminatory.
There were other even more explicit statements representative Corman (ph) in discussing the differences between the two Bills said, the key point is whether or not federal power can effectively stop the states from changing their voting laws for discriminatory purposes, that is the only issue.
Best of all Congressman McCulloch, put it in a nutshell what the importance of the Section 5 was and how it had to work.
There was a lot of discussion about whether there had been a great deal of compliance or a small degree of compliance.
There had been at that time some 400 enactments or changes submitted to the Justice department.
Congressman McCulloch said, it's on page 12136, the pre-clearance procedure, and this is critical, serves psychologically to control the proliferation of discriminatory laws and practices because each change must first be federally reviewed.
Thus, Section 5 serves to prevent discrimination before it starts.
That psychological effect, the idea of creating an incentive to jurisdictions to comply was repeatedly stated, Senator Kennedy said it, Congressman Ryan said it, Senator Bayh said it, Senator Tydings said it.
If the court wishes, I can supply these citations, but it is combed through the hearings and combed through the debates on the floor.
I submit that there is no conceivable way to carry out that affect, that is to create that incentive and to make it strong, unless Section 5 carries an advantage for obeying it and a disadvantage for disobeying it.
And I think its clear and Congress, I think certainly meant this to be the case that if all you do when you lose a case is go submit it to the Attorney General, you have not suffered a disadvantage and there is no conceivable incentive created to submit laws in the future.
It's clear that in this situation Congress meant Section 5 to be as effective as possible.
Senator Hart made it very plain.
He said, “We don't have enough successes around here to be wasteful of them.
Condition of this country argues very strong that we manage to develop an instrument effective to enable us to deliver on promises of long standing, we had better not dilute it.”
The question of the remedy is inseparable from the question of the meaning of the statute.
Congress meant Section 5 to carry with it a remedy that would make the hopes of Congress in passing Section 5 fully effective.
The only possible remedy is a remedy that says, “If you do not submit, you do not have a valid law.”
Unknown Speaker: Why do you say that the court's refusal due -- or to say (Inaudible), which I have to agree with, but court refused to it, why do you say that (Inaudible)
Mr. Armand Derfner: Because in Allen, we dealt as I say with --
Unknown Speaker: This was the first temptation.
Mr. Armand Derfner: The first temptation of course specifically said, complex issues of first impression.
In this case it's not a question of first impression, they are not complex issues.
The act has been in effect for five years now, that this is the --
Unknown Speaker: This is post Allen.
Mr. Armand Derfner: This is post Allen, the case arose post Allen, the election took place post Allen.
Justice Hugo L. Black: Meaning they don't have prospective factors?
Mr. Armand Derfner: I think it would be fair for this Court to say that I think -- well, I think that's what the court did say in Allen, and I think what it was saying is that no elections that took place before the decision in Allen can now be over turned, and I think in fact the general rule in elections would indicate that you can not overturn any elections that have taken place in the past.
I think by the way, that would not indicate that you can't challenge changes that have been made in the past.
Unknown Speaker: Mr. Derfner, if the 65 elections were held as the 62 required, would you be here?
Mr. Armand Derfner: I would be here on the other two changes, I certainly would.
The 65 election was not held as a 62 law requires.
Unknown Speaker: It was not, is there a record that it's in violation of 1962 requirements?
Mr. Armand Derfner: The record here doesn't show, yes it's in violation, record here doesn't show why they held the 65 election --
Justice William J. Brennan: Well, the court's opinion says to show --
Mr. Armand Derfner: Pardon me?
Justice William J. Brennan: I notice that that's said in the opinion of the previous court, but I don't know why they did tell us --
Mr. Armand Derfner: We were not told why was -- we never told in the record.
Frankly it --
Justice William J. Brennan: If that's your case in the court, then they do not have to comply with the 65?
Mr. Armand Derfner: No, I think their degree of compliance are not with the law.
It's a matter for the District Court in the District of Columbia to take up or the Attorney General to take up on the question of motive.
I know that in 1969, they were going to hold the election in different way from the 1965.
It's up to them to show why they want to change it or why they did what they did in 1965.
Justice William J. Brennan: But if there were new elections, as I understand you, you would want it – the haven of the 1960-- under the haven of this --
Mr. Armand Derfner: Yes, I would.
Justice William J. Brennan: Even though that haven was the violation of 1962.
Mr. Armand Derfner: Yes, I would want that election law.
I want that election law frozen unless they could justify it as was done in U.S. versus Louisiana, and is a traditional doctrine in voting cases.
If you violate a law in the past, that law is frozen, at least in Fifteenth Amendment cases and Section 5 goes to the very limits of the Fifteenth Amendment, is intended to carry with it, all the possible force of the Fifteenth Amendment.
Justice Potter Stewart: And you say its well settled that the other two factors do come under the statute and it's changing places.
Mr. Armand Derfner: I think it is very well said, both from administrative practice and for legislative history.
There are any number of citations, and I give the Court those if the Court likes in which polling places and the boundary extensions were mentioned as being the kinds of things that come within Section 5.
Justice Potter Stewart: Does a record show whether these polling places were changed -- there were some change at least in the polling places every single election?
Mr. Armand Derfner: The complaint states and the answer, I think admits that the polling places through -- for the 1965 elections were the same as they had been in the previous three or four elections.
Justice Potter Stewart: And it's the first change and first time --
Mr. Armand Derfner: First General Municipal Election change.
There had been a bond issue election the previous year I believe in which there were some changes and some not.
Justice Potter Stewart: What were the changes made after the 1965 Civil Rights Act, after Section 5 came on?
What were the changes made here after the 1965 Federal Act came?
Mr. Armand Derfner: You mean the changes after November 1, 1964 which the Section 5 talks about?
Justice Potter Stewart: Yes, what were they?
You said to me earlier that there were two changes anyway so you would still be here --
Mr. Armand Derfner: Right, the change from ward elections to at-large as warding, you have mentioned that Justice Brennan.
The other changes are the change in the polling places.
Justice William J. Brennan: And that was made what by statute or regulation?
Mr. Armand Derfner: Just by the election commissioner saying these would be the polling places.
Justice William J. Brennan: And what about the other?
Mr. Armand Derfner: And the other change is the boundary expansion.
Justice William J. Brennan: And how was that made?
Mr. Armand Derfner: And those were made by the city in -- through chancery court decree, but without hearing them.
Justice William J. Brennan: Under some -- under what state statute?
Mr. Armand Derfner: Under a state statute allowing cities to expand by going to chancery court.
Justice William J. Brennan: And I gather, your argument is even if – that in any event on either those changes, there is a requirement of either Attorney General approval or District Columbia District Court?
Mr. Armand Derfner: Quite some and on the change--
Justice William J. Brennan: The right about that to prevail whatever the difficulty then arising --
Mr. Armand Derfner: Right, all I need is one of three and then the question becomes as I said one of relief.
I would like to direct the Court's attention to some specific material.
Justice Harry A. Blackmun: What are these change in polling places amount to?
How many places were there in each ward, just one?
Mr. Armand Derfner: There are four wards in the city of Canton.
There is one polling place in each ward.
There are four --
Justice Harry A. Blackmun: There is not any sub division --
Mr. Armand Derfner: No, there is not.
Wards one and two are heavily white and basically there is not much complaint about those changes.
Wards three and four are heavily black and that is where the polling places were changed in one case to an old jail, in the other case moved from middle of the black neighborhood to an area right adjacent to a newly annexed white neighborhood.
Unknown Speaker: (Inaudible)
Mr. Armand Derfner: They were not.
Justice Hugo L. Black: Your argument is that the law is invalid because Mississippi did not get the consent of Attorney General Patterson?
Mr. Armand Derfner: Quite so and under Section 5, I would say that failing to get the consent --
Justice Hugo L. Black: And second, Mississippi did not come up to the District of Columbia to try to get a judgment?
Mr. Armand Derfner: That is right Your Honor.
And I would say that failing to do those things is as fatal to the law as failing to get the Governor's signature on a Bill.
It is an integral part.
Section 5 makes these procedures integral parts of the validity of any enactment or any change that a state covers state or subdivision --
Justice Hugo L. Black: Of course that judgment referred to all the states?
Mr. Armand Derfner: Pardon me Your Honor.
Justice Hugo L. Black: The law did not referred to all of the states that you are talking about?
Mr. Armand Derfner: No, as Your Honor, has made quite claim in two previous decisions, it applies to the states covered under the formula which happened to include your state, I am afraid.
I would like to refer specifically to the colloquy between Mr. Norman and Senator Bayh in the senate hearings.
The critical portion is at page 520 of the senate hearings.
Justice Hugo L. Black: You haven't quoted this in the brief?
Mr. Armand Derfner: This is not in the brief, I am afraid.
And basically Mr. Norman at that point was saying -- had just said, “All you win, if you win a Section 5 case is that the city or state or what have you has to go submit the law to the Attorney General.”
Senator Bayh said -- he was talking about, “It is an easy case to prove, it would be a more difficult case to prove actual discrimination.”
Mr. Norman says, “In the example that you gave, if indeed a court would enter an order based on my proof that we objected, that is objected to the enactment, that is all the proof that would be put in, that would be an easier burden of proof than proving discrimination, that is correct, but I do not think a court would do that."
There I think it is clear that Mr. Normal is talking about a court not being willing to give any relief beyond requiring submission.
Senator Bayh says, “Is it necessary for me to read the words of Section 5 to take issue with our distinguished witness as to whether the court would be violating the words on the intent of Section 5 if it held the courts that you suggested.”
Mr. Norman said, “No, if we went to court and filed the paper and said we objected to this, they threaten to use it anyway, please enjoy them using it.
It is not inconceivable to me that a court would say, that was right, why did you object?
What was wrong with it?”
Talking about requiring this thing to be submitted.
Senator Bayh says, “But the law says whether the court makes the inquiry or not, if that ruling or regulation or change has not been submitted to you on its face, it is invalid.”
Now, that is what it says right here in the words of Section 5, I won't bother to prolong the hearing by reading that, but that is what it says.
I think the position -- the lines are quite clearly drawn, they were quite clearly drawn in the debates over -- overextending the act.
The Justice department took the position that the only relief to be allowed was requiring submission.
The senate and the house quite clearly understood that, that would gut the act and they quite clearly rejected that position.
Now, I think it takes no great difficulty to see that if the only relief to be gained is requiring submission to the Attorney General, if the only thing that the appellants in this case can gain by spending $3000 or $4000 and how many hours on a lawsuit is when they win two years later to have the city submit its changes, there aren't going to be any private suits.
Justice Coleman has already indicated there aren't going to be any Justice department suits for simple violation of Section 5.
I think Congress recognized all of those things.
I might add there were a number of other references in the debates, references to the Hadnott versus Amos case and to a more recent case filed by the Justice department called United States against Democratic Executive Committee of Wilcox County in which --
Justice John M. Harlan: Most cases in your argument (Inaudible) as to why is the change (Inaudible)
Mr. Armand Derfner: Allen did by implication because --
Justice John M. Harlan: Because the act was construed very broadly?
Mr. Armand Derfner: Right.
Justice John M. Harlan: But it did not hit the specific reference?
Mr. Armand Derfner: Not, but it did hit the -- it did say that diluting a person's vote or effecting the strength of his vote is covered by changing in that case from ward to at-large or beat to at-large.
There is -- it seems to me clear for example that drawing in the boundaries to cut out black votes would be covered and I think the Allen case very readily reads and has been so construed by both Congress and the administrators to mean that if you add X number of white voters and therefore dilute the effectiveness of any given voter, especially black voter who is already in the city that you have affected his right to vote and you have denied his right to vote under Section 5, within the meaning of Section 5.
Justice Byron R. White: Would the election and it maybe that the Section 5 as you say covers this case and maybe not, but even if it does, would it -- would the outcome of the election have been different?
Mr. Armand Derfner: Yes, quite clearly.
The election results -- both primary and general election are not in the record because the elections took place after the case was closed, but the figures are not in dispute and it is quite clear that blacks would have won because they got more votes in both wards three and four.
Justice Byron R. White: Well, how about just from the -- I am just talking about the annexation part?
Mr. Armand Derfner: It is hard to tell.
Justice Byron R. White: Early 1996 and net gain in 1996?
Mr. Armand Derfner: No, I think those figures are wrong.
Justice Byron R. White: You just challenge the figures of the District Court?
Mr. Armand Derfner: Yes, I do.
The District Court said that at the time the annexations were taken in --
Justice Byron R. White: What are we supposed to accept, your figures or theirs?
Mr. Armand Derfner: I think you should take the figures that can be gained from the record and the exhibits at the very back of the appendix show how many people were actually counted there by the city's enumerator.
They had a man go out Mr. Smith, who was a witness at the trial.
Go out and count houses and count people, and based on that, you can figure out exactly how many people were there.
District Court made it quite clear it was talking about how many people had been brought in at the time of annexation, not how many people would be affected at the time of the election.
I think the time of the election is the critical part.
Justice Byron R. White: Yes, but if all of the whites who lived in the annexed area, registered to vote and all the blacks registered?
Mr. Armand Derfner: You would have a net of approximately 250 or more extra whites.
Justice Byron R. White: That's just thought to be contrary to what the District Court said?
Mr. Armand Derfner: That is true, but it is not thought to be contrary to what the record says.
Justice Byron R. White: Would that have made a difference in the election?
Mr. Armand Derfner: That itself might not have made a difference, would not have made a difference because without the -- except for the --
Justice Byron R. White: Without these – you say 250, without these 250 white votes?
Mr. Armand Derfner: The general margin in the general election was some 800 votes for most of the offices.
It was somewhat less than that in the primary elections.
If you take together the annexations and the moving of the polling places and I think by the way if you take a look at the turn out in ward three, you will see that it's significantly below than the turn out in the other wards, ward four is also below.
If you take the moving of the polling place plus the annexations, I think you will find that there is enough of a probability that a change would have taken place, so that this Court should -- so that a new election would be fair, would be equitable, because we're not talking about a situation in which a change in the results was a (Inaudible) talking about and remember that in some cases as in Bell against Southwell, you do not need any effect on the results.
We are talking though about a situation in which the results could well have been changed.
Justice Byron R. White: Yeah, but in Allen, in Allen -- I thought the court may clear that even though there might be a violation of Section 5, perhaps, you don't always order an election?
Mr. Armand Derfner: Frankly, Your Honor, if -- when I had been here in Allen and when Mr. McIlwaine had been here in Allen, if we had thought that's -- that the court meant that to apply beyond the Allen case, we would not have brought anymore Section 5 cases, and there wouldn't be anymore Section 5.
This is just not worth anything if it doesn't mean a new election.
I would like to --
Justice Byron R. White: It doesn't mean anything prospectively.
Mr. Armand Derfner: Pardon me, Your Honor.
Justice Byron R. White: You mean, it doesn't mean anything perspectively?
Mr. Armand Derfner: With the short life for the act, it certainly won't, it won't mean enough to make a difference.
At the time we brought this cases, the act was due to expire in a year.
Now it's been extended for five more.
There'd be one more municipal election under these terms.
Frankly, a totally perspective ruling just doesn't have the value that Congress meant it to have.
Chief Justice Warren E. Burger: Mr. Derfner, you have exhausted your time now.
Justice Hugo L. Black: (Inaudible) happened in the State of MIssissippi, would it have been valid?
Mr. Armand Derfner: If he had consented, when?
Justice Hugo L. Black: If he had submitted it to the Attorney General and he had said (Inaudible), would it's been a valid law?
Mr. Armand Derfner: You mean before the election.
Justice Hugo L. Black: Yes.
Mr. Armand Derfner: Certainly, it would have.
Well, I take it back, it would have been valid under Section 5.
We still would attack it under the Fourteenth and Fifteenth Amendment.
Justice Hugo L. Black: All that the defendant could have done make Mississippi pass this law, the Attorney General would say you can pass that.
Mr. Armand Derfner: Under Section 5.
Chief Justice Warren E. Burger: Mr. Goza.
Argument of Robert L. Goza
Mr. Robert L. Goza: Mr. Justice Burger, may it please the Court.
The appellees are certainly not here to challenge the wisdom of the Congress in enacting the 1965 Voting Rights Act, all the decisions of this Court and upholding its constitutionality generally and specifically the constitutionality of Section 5.
We are here to defend the actions of the city of Canton which are under attack by the appellants and that attack is three-fold; first upon the annexation, second upon on the polling place changes and third upon the elections at large.
Now to clarify a question that Mr. Justice White asked about the net change in the number of potential voters because of the annexations, perhaps we were narrow, but it was my understanding that three-judge court said as not only the trier of the fact, but to make the decisions in regard to the law, at the hearing in the lower court.
That court found that there was a net gain of 94 potential white voters and found that as a fact.
Now this net gain --
Justice William J. Brennan: Do the exhibits support a contrary conclusion on this?
Mr. Robert L. Goza: Your Honor, if I recall correctly, the stipulations supports those figures as does -- yes Your Honor, as does of the testimony and as does the finding of the court.
Justice Byron R. White: Well, 94 --
Mr. Robert L. Goza: A net gain of 94.
Justice Byron R. White: Could that possibly have made any difference in the elections by itself?
Mr. Robert L. Goza: Your Honor, the majority of the white candidates over the black candidates was some 800 to 900 votes, so I do not think that that would have made a --
Justice William J. Brennan: Well that suggests if the figure instead of 94 should be 250 it still would have made no difference?
Mr. Robert L. Goza: I don't believe so Mr. Justice Brennan, I don't think it will in those, no sir.
Chief Justice Warren E. Burger: You have other factors.
Mr. Robert L. Goza: Yes, we have -- there are other two factors which, of course, they contend did effect the election, we contend did not.
Just for -- I know that the Court has read the briefs, but just to clarify the point I made, I point out that these expansions were three.
There were three separate expansions.
They were done in 1965 in which an area including all black voters -- all potential voters was annexed.
Unknown Speaker: 94 the date of the Civil Rights Act?
Mr. Robert L. Goza: No sir, it was after November 1, 1964 but it was in August of 1965, I believe.
And then the other two alleged, one in 1966 and one in 1968 and stipulation shows that these were done pursuant to a long range plan of the city of Canton for its road and development.
It was not something that cropped the path to the enactment of the Voting Rights Act.
The statute under which these expansions were made of course has been in existence long before the Voting Rights Act was never dreamed of and the state law under which the city proceeded.
The second thing is that the 1962 statute which permitted elections at large was also of course in existence prior to Voting Rights Act, and it was true that city had not followed it or did not follow in 1965.
Those were the two things which I would like to point out in view of the statement by counsel opposite that these things were post Allen.
They actually were not post Allen.
They were done prior to or about the same time that the Allen decision was handed down by this Court.
The point that appellees would like to urge is this and the question before the Court as we see it is this.
“Does the Court wish to extend or expand the interpretation of Section 5 as laid down in the Allen case to the extent which appellants urge and reach the appalling result that 95% of any Municipal enactment or administration of an enactment would have to be submitted to the Attorney General of the United States or to the Court of Appeals for the District of Columbia before its effective or should the Court put the bit and bridle of reason of the common sense on Section 5 and confine it within that practical bounds which will carry out the intent of Congress that the election processes shall not be discriminatory and at the same time ensure a municipality the authority and the power to conduct the management of its affairs in an orderly fashion.
Because to do of what the appellants urge you to do and to hold these annexations to be void for the purpose of elections which I don't see how you can do that, it's either got to be a valid annexation or an invalid annexation.
You cannot have the people in the city paying taxes and not able to vote.
And so the things that, that will happen are these.
You question the policing power and jurisdiction in these areas and since 1965 in one case and 1966 in another and since 1968 in another, you have people who have paid municipal taxes for period of five years, some of them in these areas.
You have to consider the affect on zoning, housing codes, plumbing building codes, on just about every facet of Municipal Government in the annexed areas.
It occurs to us that Section 5 interpretation should be limited to the election processes which we could summarize as this, the qualifications and eligibility to register.
The registration process itself, the physical act of casting ballot and the right which this Court has indelibly inscribed on the American couches of having your vote, or the vote of each elector cast with the same value and the same weight as all other votes cast in that election.
And unless some enactment or administration of an enactment would affect one of these four phases of the alleged processes then it should not come within Section 5.
Of course if the enactment or the administration of the enactment remotely affects and can be shown to have a discriminatory purpose or effect, inadequate rights prevail under the Fourteenth or Fifteenth Amendment, as the case might be.
We just urge upon the Court, these annexations should not be construed as coming within Section 5.
Unknown Speaker: Well, if you say here that you --
Mr. Robert L. Goza: Your Honor, you run here all into the practicalities of holding an election in a small town, one is banning a polling place.
Now at first blush, you might think that that's an easy thing to do, but it's not necessarily so and you have to take a place with adequate facilities, taking into consideration parking, the effect if it rains, shelter for the voters and that sort of thing and it's not the easiest thing in world to do.
We did the best we could in those particular cases, the polling places had to be moved.
And we picked the --
Unknown Speaker: Wouldn't that election purpose affect the --
Mr. Robert L. Goza: Your Honor, it would seem to me that that is the only logical conclusion to reach.
That if it can be shown, that these polling places were moved for a discriminatory purpose or that if they had a discriminatory effect that the adequate remedy would be under the Fifteenth Amendment, and that to compel the City of Canton to conduct brand new election, simply because the two banks would no longer permit them to use their lobbies.
That has been our contention all the way through, As a practical matter, it could be held and we think the record adequately shows why we did it.
We tried to make a full disclosure to the three-judge court and if that new election is ordered to -- excuse me sir.
Unknown Speaker: That means record of this statute (Inaudible) as whether the three-judge court thought it has to?
Mr. Robert L. Goza: That's correct Your Honor and --
Unknown Speaker: (Inaudible) given the decisions in other cases?
Mr. Robert L. Goza: Well, I think even more important than that this Court should decide whether or not to change the polling place with no discriminatory purpose or effect is a change within the meaning of Section 5, or is it and one of the congressional hearing said, the distinction between voting machines and paper ballots.
We also went to voting machines in this election and had been using paper ballots up to now, has as such a change as to warrant the holding of a new election or is that progress.
Chief Justice Warren E. Burger: Well, nobody is arguing about that in this case, are they?
Mr. Robert L. Goza: No Sir that's true and they didn't argue about the 1965 annexation that took in all the black people either till we brought into the case ourselves.
But the point that I am trying to make is this.
Are all changes regardless of the degree, such changes come within Section 5 and if it's violated, require new election?
Or should we stick to the things which effect registration, the actual voting and the right to have your ballot counted equally.
Justice Thurgood Marshall: But it doesn't change of boundaries affect all of it?
Mr. Robert L. Goza: Excuse me Sir.
Justice Thurgood Marshall: Change of district lines affect all of it?
Mr. Robert L. Goza: Well, the district lines have not been changed Mr. Justice Marshall.
Justice Thurgood Marshall: What's the difference between changing district line and extending the boundary?
Mr. Robert L. Goza: Well, in this case it would be no different if the election were held at large.
Justice Thurgood Marshall: Well, what I am trying to say is I don't see any difference.
If you can't change two lines inside without getting permission of Attorney General how can you change the outside line without getting his permission.
Even if it was perfectly alright to do it, it is a change?
Mr. Robert L. Goza: Yes Your Honor it is a change, but here is what you have run into also when a highway or anything which causes as an increase or decrease or a shift in population from one area of the city to another, according to the appellant's contention, is a change.
Alright, urban renewal projects, (Inaudible) projects, highway relocations all of those things have that effect.
Justice Thurgood Marshall: I hope you don't assume I go that far -- .
Mr. Robert L. Goza: No sir but [Attempt to Laughter] --
Justice Thurgood Marshall: I am just talking about that one line.
It seems to me and I don't want you to give away your case just mean on that, I couldn't conceive of the Attorney General not permitting it?
Mr. Robert L. Goza: Of Course, I am not prepared to answer that question at all.
To me the things are different, but in this case the ward lines mean absolutely nothing because of people of being elected at large now or at least that's the way we did it.
Justice Harry A. Blackmun: Mr. Goza, was the Allen case argued before the three-judge court?
Mr. Robert L. Goza: Before a three-judge court?
Justice Harry A. Blackmun: Was it argued before the three-judge court?
Mr. Robert L. Goza: Yes, Mr. Derfner and myself, both did.
Justice Harry A. Blackmun: It was argued?
Mr. Robert L. Goza: Yes Your Honor.
Justice Harry A. Blackmun: Yet the Court didn't decide it?
Mr. Robert L. Goza: I don't recall whether it's in judge Coleman's opinion or not, but we contend that the distinction between the Allen case as we did before the three-judge court is this that in Allen case what the Court decided on was it diluted the black vote by extending it into all five beats of the county when in effect what it actually did was it put the influence of the white majority into the two black beats.
In this case there is a majority of black voters in the city of Canton.
What we did when the election was called at large was to extend the black majority through all four beats instead of confining it to two beats.
Beats three and four; this extended it to all four beats and in effect if there is such a thing as a polarization and the black vote, in effect gave the black majority the opportunity to elect all municipal officers.
That was not true in the Allen case, but the black majority prevails in the city of Canton.
And they had an opportunity to vote in wards one and two which if the appellant's contention is accepted by this Court they will not have.
We contend that could not possibly be discriminatory even though it is a change.
Now, the reason I believe Mr. Justice Brennan asked why the 1965 elections was not held in accordance with the 1962 statute.
The reason is it was a my mistake.
We were not aware of the 1962 statute when the 1965 elections was held and therefore was not followed.
At the time of 1965 election, there were some 200 black voters in the city of Canton and it was certain -- no one intend to discriminate against them at all it was just a mistake on my part, even though that's not in the record, that's what happened.
Justice Harry A. Blackmun: Do you regard the 1962 statute as mandatory or permissive?
Mr. Robert L. Goza: Yes.
Justice Harry A. Blackmun: Mandatory?
Mr. Robert L. Goza: Yes mandatory.
Unknown Speaker: Is there any explanation that was a part of --
Mr. Robert L. Goza: Yes I just said that Mr. (Inaudible) it was my fault.
I made the mistake.
I did not read the pocket [Attempt to Laughter]
Justice Potter Stewart: Through city solicitor or the -- you know, the city solicitor or --
Mr. Robert L. Goza: And now it was -- that the city file relied on my interpretation of the statute and it was just a mistake which was stupid, but made in good faith.
Chief Justice Warren E. Burger: In the Act, has there been any change that would exempt the elections to vote bond issues that would take bond issues for example out of this, out of the statute, out of the Civil Rights Act?
Mr. Robert L. Goza: Not that I am aware off.
Chief Justice Warren E. Burger: Seventeenth Amendment?
Mr. Robert L. Goza: I am not aware if it sir --
Chief Justice Warren E. Burger: And if you had voted a bond issue back when you held this elections --
Mr. Robert L. Goza: Right, in 1968 --
Chief Justice Warren E. Burger: -- the validity of those -- you couldn't market those bonds for quite a long time, could you?
Mr. Robert L. Goza: We could not market them.
Chief Justice Warren E. Burger: You could not – you could not market them.
No bankers would handle the bond issue till all the litigation was settled?
Mr. Robert L. Goza: That's correct so that we have approximately $1 million worth bonds of outstanding now in annexed areas and it worked to prepare to take in the annexed areas.
And I don't know what effect that will have on all those --
Justice Hugo L. Black: What's the name of your city?
Mr. Robert L. Goza: Canton, Mississippi.
Justice Hugo L. Black: What's the population there?
Mr. Robert L. Goza: I don't know what the 1970 census says of this; 1960 census was 9707 and we expect it to be a about 11,000 at the 1970 census.
Justice Hugo L. Black: (Inaudible)
Mr. Robert L. Goza: Yes sir.
But in conclusion I would like to say that there must be some practical interpretation placed upon Section 5.
We feel that the Allen case has actually gone as far as in placing the broad scope on it as it can and still allow municipalities who acting in good faith and there is not a word in the record or suggestion any way, that the city has acted other than in good faith which would permit them to carry on the normal and ordinary functions of municipal government without wearing out the roads to Washington to see the Attorney General in this Court here.
It cannot be that every single act that the city performs, because everything you to do affects the people in the city.
Every time you affect people, it could have a remote affect upon voting or elections.
There must be a line drawn to whether the effect must be direct rather than indirect.
We urge you to uphold the judgment of the lower court.
Justice Hugo L. Black: (Inaudible)
Mr. Robert L. Goza: Yes sir, in the interest of small municipalities are certainly Mr. Justice Black because it is hard enough to function as bias and while if you do act in bad faith and bad motives and what you do has discriminatory purpose or effect, you expect to be called or told, but when you are doing the best you can and have the best interest of all the citizens, black or white within the city at heart then I think that a practical approach must be reached to this Section 5, otherwise, excuse me sir.
I am just going to say otherwise everything that a municipality does could remotely be construed is coming within Section 5 if the argument of the appellants is accepted.
Unknown Speaker: How do you think this, if ordered by law, is fair under Reynolds against Sims.
Mr. Robert L. Goza: Sir?
Unknown Speaker: How do you think if ordered by law, it is fair under Reynolds against Sims.
Mr. Robert L. Goza: No, I don't believe it is.
That's the reason we called ourselves going by the decisions of this Court in “the one man one vote” cases and making it fair.
That's what we really felt we were doing and because we understand that there was either reapportion of the wards or elect the officers at large and electing at large seemed to be the fairest way to do it and that's what we did.
Justice Hugo L. Black: As I recall it, yet it's for me, constitutional convention is to give Congress the right to veto the law of its citizens and it was defined, if that is the case you suppose that it would be asking too if asked for the statute not be too broad to construe that attempted to veto, that attempted to delegate the power to Congress?
The Congress itself did not resist -- the Attorney General veto to send it all, you say that were some argument --
Mr. Robert L. Goza: Yes so that pretty well sums up our contention because the authority to veto was not very far removed from the power to compel sub-division to do something if you can veto what they had done and the next step is to make them do something else and we contend that it's not.
Justice Harry A. Blackmun: Mr. Goza tell me once again, where you would drawl this line to which you --
Mr. Robert L. Goza: Your Honor, anything that did not pertain to qualifications and eligibility to register.
The registration process itself, the physical casting of the ballot and the right to have your ballot counted with equal weight as all other ballots cast in elections.
If it did not come within those four things and I don't think that Section 5 should have anything to do with it.
Because if it didn't come within those four things and certainly these three things they are complaining about do not, then any remedy should be under either Fourteenth or Fifteenth Amendment.
Chief Justice Warren E. Burger: Your time has exhausted counsel unless you wish to correct some factual matter or answer a question.
Rebuttal of Armand Derfner
Mr. Armand Derfner: It would be appropriate for me to just state a brief, like we stated in response to questions posed in slightly different force by Mr. Justice Marshall and Mr. Justice Harlan.
Basically the question was how can you expect or how were the apportionment fair under Reynolds against Sims or how were the ward elections and Mr. Marshall's question was relating to the expansion of boundaries.
I think basically what Section 5 had said is that -- is that the certainty that these are valid under the Fifteenth Amendment, that these have been passed in good faith is so important that Section 5 must be enforced that way.
But these are not questions to be considered, nor even that we have to make any proof on in the record below and that as to the apportionment, a slight dislocation in the question of proper apportionment of one election is not of such consequence, will not dislocate the law as much as allowing a change to pass without proper clearance under Section 5, which if it happened, would create every incentive for every jurisdiction, never to submit another change under Section 5.
Chief Justice Warren E. Burger: Thank you Mr. Derfner.
Thank you counsel.
The case is submitted.