WHITCOMB v. CHAVIS

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Argument of William F. Thompson

Chief Justice Warren E. Burger: We'll hear arguments in Whitcomb against Chavis, number 92.

Mr. Attorney General you may proceed whenever you are ready.

Mr. William F. Thompson: Thank you, Your Honor.

Mr. Chief Justice, Associate Justices of the Supreme Court, may it please the Court.

My name is William F. Thompson.

I am the Assistant Attorney General for the State of Indiana.

This morning or this afternoon I will --

Arguing on behalf of appellant, the Governor of the State of Indiana.

I am accompanied this afternoon at counsel table by Theodore L. Sendak, Attorney General for the State of Indiana, and Richard C. Johnson, his Chief Deputy.

In our brief in this case we presented this Court with six issues.

This afternoon the State will concentrate its argument on two of those issues.

The first issue is whether the constitution permits or requires that a racial/socioeconomic group be proportionally represented in the State Legislature by representatives elected from that group.

Secondly, whether the constitution requires all state legislative districts to be the same size.

If time allows, the state will discuss the remaining issues.

I would be glad to, would be pleased to answer any questions this Court may have regarding them.

This action began as an action for declaratory injunctive relief in the District Court.

It was brought by Negro residents of Marion County, Indiana.

Marion County is one of 92 counties in Indiana.

The plaintiffs below challenged the constitutionality of the Marion County multi-member districting scheme.

Marion County provides for the at large election of 15 members of the House representatives and 8 members of the Senate.

This action does not involve congressional districting, is limited solely to state legislative districts.

Following this Court's decision in Baker v. Carr, Indiana began the long road to reapportionment.

In 1963, it reapportioned, in 1965 it again reapportioned.

The 1965 Act was declared unconstitutional by the District Court in the case of Stout v. Bottorff, that's the first District Court case.

A special session of the 65 legislature was called, and they again enacted an Apportionment Act, that was the Apportionment Act of 1965 and that is the subject of this litigation.

It is interesting to note that one of the plaintiffs in this action was the member of the 1965 legislature, that enacted the 1965 Act, that he voted for that Act and that he now attacks that Act.

There were six plaintiffs in the Court below, one was a resident of the Lake County, another County in Indiana, five of the plaintiffs were residents of Marion County.

The District Court found in favor of only one of the plaintiffs' from Marion County, only one plaintiff in this case was found by the District Court being entitled to relief.

That was Mason Bryant, Mason Bryant was the resident of an area, within Marion County, which the District Court denominated as the Center Township ghetto.

He was the resident and voter of the Center Township ghetto.

The Center Township is one of the nine townships of Marion County.

It's approximately in the center of the County, the other townships are ranged around it.

The Center Township ghetto is approximately the northern half of the Center Township.

The area designated by the Court as the ghetto is predominantly populated by Negroes who are poor and less well educated from the rest of the County.

I might point out that the term ghetto is the term used by the appellees and by the District Court.

The area to which this refers is not regarded in the community as a ghetto, it's not called that in the community and to a certain extent it's non-descriptive of the area involved.

From the rest of the County, the District Court selected an area, Washington Township and compared the number of legislators who were residents of Washington Township to the member of legislators who were residents of the Center Township ghetto.

An absolute numbers are Washington Township had more Senators than the Center Township Negroes.

The Court computed ratios and found that Washington Township ratio was greater from the Center Township ratio.

On this basis the District Court declared that the vote of the Center Township Negroes was diluted and canceled out by the Marion County multi-member district.

Rather than limited relief to merely sub-districting Marion County, the District Court ordered the reapportionment of the entire state.

Although, the Court appeared to rely upon a straight “one man, one vote” analysis of Reynolds, the true basis for requiring the reapportionment of the entire state was the testimony of John Banzhaf.

John Banzhaf is an Associate Professor of Law at George Washington University and has written some articles regarding multi-member districts and testified at this trial at the hearing to this case.

He testified that apportionment plans providing for districts of different sizes, a mix system of multi-member districts and single member districts, created inherent inequities and was unconstitutional per se.

On this basis and on the basis of clerical considerations, political factors which the District Court found to exist within the County, the District Court required that when the state reapportioned that all districts be the same size.

On July 28th the District Court declared the 1965 Apportionment Act unconstitutional as to the multi-member districting provisions relating to Marion County.

The District Court gave a stay till October 1 to reapportionment.

The legislature was not in session at the time that the Act was declared unconstitutional.

We had at that time biennial sessions.

The district or the legislature would not reconvene until January 1971, accordingly the State did not reapportioned.

On October 15, the Court reconvened and invited plans from the parties, the plaintiffs, the defendants, intervening defendants, legislative leaders and interested parties in general.

On October 17, the District Court announced the minimum guidelines, the 1960 census data would be used.

Single member districts would be preferred over multi-member districts.

Town, County and Township lines would be crossed when necessary, contrary to the provisions of the Indiana Constitution and that the District Court would take cognizance of the existence and location of the Center Township Negroes.

The plan adapted by the Court was the Court's plan supplemented by the plans submitted by the appellees in this case.

The appellees submitted a plan pertaining only to Marion County.

The Court's plans as adopted did rely on the 1960 census, did cross some county and township lines, did take cognizance of the existence and location of the Center Township Negro area.

It is interesting to note in this regard that one of the plans submitted by the intervening defendants had variances that were substantially the same as the variances in the plan provided by the appellees.

The District Court rejected that plan because in its estimation it did not take cognizance of the Center Township Negro area.

On December 15, the District Court announced that its plan would be the plan, would be the apportionment scheme for the 1970 election.

It enjoined all state election officials permanently from enforcing the provisions of the 1965 Act.

It mandated all state election officials to conduct the 1970 election in accordance with the Court's plan.

Furthermore, the District Court retained jurisdiction, permanent jurisdiction apparently to pass on any future claims that the plaintiffs' might have regarding any future plan of apportionment which the legislature might draft, sort of a super legislative veto.

The State of Indiana appealed.

On January 6, the Governor moved the District Court to stay its judgment.

The District Court refused.

The state on January 20 --

The next day, the Governor applied to this Court for a stay, the judgment of the District Court, and on February 2, this Court granted the Governor's application for a stay.

The 1970 election was conducted under the 1965 Act.

This is the Act that was specifically submitted to the District Court in the second Stout case.

The District Court specifically approved the constitutionality of that Act.

The District Court in that case specifically found that the 1965 Act met the standards laid down by this Court.

Turning to the first issue, the state submits that constitution does not in fact require racial, socioeconomic groups to be proportionally represented in the state legislature by representatives elected from that ethnic group.

The District Court's judgment in this case that the residents of the Center Township area --

That the vote of the residents of the Center Township area was canceled out, was based on two erroneous assumptions.

First, that the Center Township Negro area was proven on this record to exist as a distinct from cohesive area apart from the rest of the County.

The second erroneous assumption upon which the District Court based its judgment is that fewer legislative persons resided in the Center Township area, than in the Washington Township area, the adjoining area.

Justice John M. Harlan: Did the District Court reapportioned all of the state?

Mr. William F. Thompson: Yes, Your Honor.

Justice John M. Harlan: Well, that (Inaudible) to that present situation [Inaudible].

Mr. William F. Thompson: Well, that's a matter of some speculation, Your Honor.

The primary holding in this case --

well, first of all you have the District Court's decision in 1965 which had already passed on the constitutionality of the 1965 Act under the “one man, one vote” principles of Reynolds.

Now, along comes this case, about four years later.

The Court looks at it and says, well, first of all this Court has changed the standards, secondly, we now have a new theory, the Banzhaf analysis that multi-member and single-member districts are inherently unconstitutional.

The Court went from the finding that these defendants, these plaintiffs were invidiously discriminated against, it went from that finding to the conclusion that the entire state had to be reapportioned.

It is just --

There is a complete gap in there as to why the whole state had to be reapportioned.

The District Court specifically said that when once Marion County, it sub districted, there would be unallowable variances, but that's patently absurd.

Either it was malapportioned --

well, you have legislators for persons in there, it's going to be the same after you reapportion as it was before, either it was okay before or it wasn't, but the District Court already said it was.

Justice Potter Stewart: Was this theory that as illustrated by the Marion County situation, multi- member districts where the Court concluded were constitutionally invalid, and that is what led it to reapportioning entire state, isn't it?

Mr. William F. Thompson: Yes, that's exactly the way they went.

Justice Potter Stewart: Began by seeing the effect of the multi-member Marion County district, the effect on this ghetto area?

Mr. William F. Thompson: Yes, Your Honor.

Justice Potter Stewart: And that led it to the conclusion, the District Court's conclusion that multi-member districts generally were constitutionally invalid, and that in turn led it to look to the rest of the State and it found that in Lake County and elsewhere there were multi-member districts, and that is what led it to state-wide reapportionment.

Wasn't that [Voice Overlap] reasoning or am I wrong?

Mr. William F. Thompson: I think that's a reasonable explanation of what happened.

I think that --

Justice Byron R. White: I thought the court would have reached the same result and redistrict the whole state even if it had not found that looking at Marion County alone, that the multi-member district canceled out to voting power of some group.

I thought the court would have said that, the multi-member districts as multi-member districts give multi-member districts too much power compared to single-member district.

So, they could have reached this reapportioning the whole State result, without identifying any particular group within Marion County as having been disenfranchised?

Mr. William F. Thompson: That would have been a reason to reapportion the entire State.

That would not have been a reason to sub-district, necessarily a reason to sub-district, while I guess it follows that Marion County would have to be sub-districted because it's the largest district in the State.

Justice Byron R. White: All multi-member districts would have had to – (Voice Overlap) upon.

Mr. William F. Thompson: One of the problems in --

Justice Byron R. White: Did the court go that route or not?

Mr. William F. Thompson: I think they did, I think they did.

An interesting part of that preposition is that the court only found in favor of Mason Bryant who was a member of the multi-member district.

There was no member --

The court didn't, if the court is going to find that someone's rights have been violated, then it has to have the man before it who's right has been violated.

Mason Bryant under the court's analysis was over represented.

The court had no one --

well, the court filed in favor of no one before it in terms of having being under represented, the court went both ways.

In the invidious discrimination argument, breaking up the Marion County district, the Court found that Mason Bryant was under represented.

Applying the Banzhaf analysis, the Court found that Marine County was over represented.

They tried to have it both ways.

To reach the court's decision in this case as the Marine County multi-member district, it had to first find -- first had to section off a distinct area then had to compare -- divide some meaningful basis to compare that area to another area.

To do that, it conducted what it called a statistical analysis, which I won't to treat here because I feel that I have adequately treated it in brief, but I feel that the statistical analysis the court applied amounts to gross speculation, that the Center Township Negro area amounts to a separate distinct area within the county.

The second step which the court used was to compare the ratios, the ratio of legislator per person of the Center Township Negro area to the Washington Township area.

To do this, the township lines, the township boundaries; these two -- these areas that are being compared have to have some political significance.

Implied in the court's decision is that somehow legislate -- residents in Washington Township are better represented, but a legislator from Washington Township doesn't represent all the legislators in the County, but somehow he only represents the residents in Washington Township.

Somehow the residents of Washington Township are specially benefited by having legislators elected from there.

That somehow Washington Township legislators did not represent residents of the Center Township Negro area.

The record refutes those conclusions.

One of the plaintiffs' in this case Mr. Chavis was a resident of Washington Township.

He testified that when he was in the Legislature he represented the interest of the Center Township Negroes.

The record in this case shows that a legislator living outside of the Center Township Negro area can represent the interest of the Center Township Negroes.

Chief Justice Warren E. Burger: Was there any testimony before the Court contradicting Mr. Chavis' testimony?

Mr. William F. Thompson: In that regard, Your Honor?

Chief Justice Warren E. Burger: Yes.

Mr. William F. Thompson: No, Your Honor.

Not at all, that was a --

Justice John M. Harlan: Is there any evidence in the record discriminatory (Inaudible)?

Mr. William F. Thompson: None.

Justice John M. Harlan: Racial discrimination?

Mr. William F. Thompson: No discrimination, Your Honor.

As a matter of fact, the record in this case, Mr. Chavis testified, that in these two areas the laws were perfectly inadequate, in the areas of welfare and unemployment compensation.

He said, the laws are adequate.

The problem is with the attitudes of the people that are administering those laws.

That's not a problem of discrimination.

That's not this kind of problem of discrimination, that's another kind of problem.

Our concern here is whether these people are represented in the legislature.

The record –- okay -- in the same regard Chavis also testified that the interest of the Center Township Negroes were shared -- were common with the residents of the rest of the county, with the residents of the rest of the State, that's it was counted with Negroes living in areas outside of the Center Township area.

The significance of this is that, if the interest of the Negroes living in the Center Township are not being fully pushed along, fully been taken care of, that neither the interest of citizens in other areas of the State.

In the same regard, we have only to look at the statutes of the State of Indiana, their welfare laws --

We also have consumer protection laws, unemployment compensation.

Any interest that you can think of that the plaintiffs in this case claimed they had, there is a law providing for that, there is a law provided for that.

I think that's an example of the fact that their interests have not been ignored in the legislature.

Justice John M. Harlan: (Inaudible)

Mr. William F. Thompson: Well, the District Court says, that the Center Township Negroes have compelling interests in things like urban renewal, and welfare, legislation, law and order, schooling, education, health, so on and so forth.

These were the compelling interests of the Center Township Negroes.

They are piece of the interest that we share with those people in common.

It's an interest we have in common.

And there are laws in the books that attempt to regulate or in some way take care of these interests and I think this an example of fact that their interest are not ignored.

Justice Thurgood Marshall: Mr. Thompson, you've taken a position or is true in Indiana that the legislature has nothing to do without the laws or administrative --

Mr. William F. Thompson: Well, sort of yes and no.

Generally speaking, no Your Honor.

The legislature enacts the laws and they are carried out by some other body.

Justice Thurgood Marshall: It can be the legislature has nothing to do about it or --

Mr. William F. Thompson: Except to change the law.

They did first state out a point the department has, take the welfare department, look how that's broken down, you have the state --

Justice Thurgood Marshall: Don't we have a committees in the legislature for each on of these departments?

Mr. William F. Thompson: No, there are a few standing committees, Your Honor.

Justice Thurgood Marshall: Yeah, I thought so.

Mr. William F. Thompson: Few, very few.

Justice Thurgood Marshall: I thought so.

Mr. William F. Thompson: Okay.

Justice Thurgood Marshall: So there is some control?

Mr. William F. Thompson: But not continuing --

Justice Thurgood Marshall: (Voice Overlap) money to these agencies, who fixes that, the legislature?

Mr. William F. Thompson: Yes, Your Honor, the legislature --

Justice Thurgood Marshall: It has a little control, isn't it?

Mr. William F. Thompson: Yes, Your Honor.

Justice Thurgood Marshall: So they could have some?

Mr. William F. Thompson: Oh yes!

Definitely.

Justice Thurgood Marshall: That's the only question I asked?

Mr. William F. Thompson: I'm sorry, I didn't fully understand your question.

Chief Justice Warren E. Burger: Well, would you say that the control was of different kind, or of different character that than control that Congress exercises over the execution of laws.

I'm trying to get the general point of view.

Different in what respect?

Mr. William F. Thompson: I wouldn't say is it's the difference, Your Honor, I would say it's the same sort of control that Congress would have, only probably less so because of the fact that, I apparently mean (Inaudible) there are no, there are a few standing committees, but the characteristics between the two, I think they are parallel.

One other example of fact that the, one other fact to show that the legislative interest of the Center Township Negroes are not ignored, is the tax money that's appropriated for the very things that the District Court said they were most interested in; urban renewal, schools, education, health, welfare, unemployment compensation.

The tax money that's appropriated, that goes into this areas is disproportionately large as the money that's going into the rest of the county.

The remedy correct the delusion which the District Court found to exist in Marion County was the subdistrict of Marion County.

The State submits that this a retreat to the separate but equal doctrine of Plessy v. Ferguson. In requiring that the districts -- that the Center Township Negro areas be separately districted, District Court was saying, let's make them separate but equal.

If it is -- if the decision of the District Court is allowed to stand, districts must be drawn to separate and segregate citizens on the basis of race, color, creed, economic conditions, and other special interests.

It wouldn't be unreasonable to carry that out a step further and if we are going to have ethnic or proportional representation, perhaps the next suit will be a suit against the State to increase the size of its legislature so that these interests can be represented with some degree of precision.

In the final analysis, I think what we're dealing with here is a special interest group.

The Center Township Negroes in this case claimed to have special interest.

Well, we all do.

As a lawyer I have special interest.

As a citizen my interest may differ from someone else, but I have special interest.

Taken to its logical conclusion, the District Court would require that every special interest have its own representatives, may it be a lawyer's representative or a school representative.

Heretofore we have called these people obvious but we haven't given them a representative to represent them in the legislature.

Justice John M. Harlan: (Inaudible) question.

How did the District Court know about exercising its function (Inaudible) who did they consult, who did they --?

Mr. William F. Thompson: Well, that seems -- for Marion County --

Justice John M. Harlan: Did the legislature, did the political leaders (Inaudible) participated at all?

Mr. William F. Thompson: To this extent, Your Honor, the legislative leaders were invited to submit a plan.

As a matter of fact I think they were given several days in which to do that.

And I believe --

Justice John M. Harlan: How long?

Mr. William F. Thompson: Pardon me?

Justice John M. Harlan: How long?

Mr. William F. Thompson: Several days and I believe I did submit a plan.

As a matter of -- and the plaintiffs were in invited, the plaintiffs and defendants were invited to submit plans to the District Court.

Chief Justice Warren E. Burger: Are the legislatures that you refer to parties to the action?

Mr. William F. Thompson: No, no, they were just legislative leaders.

That's one of the committees or --

I can't really say how it is that these people came together to submit this plan, but they did, but the legislature was not in session.

Chief Justice Warren E. Burger: But it's -- the record is perfect and clear as if they were not parties to this action?

Mr. William F. Thompson: Oh yes!

Quite clear.

Chief Justice Warren E. Burger: Were they ordered or requested to --

Mr. William F. Thompson: Well, as the action started out it was initiated against all the legislators.

But then the Governor was added, and the legislature was dropped and the Governor was left in the action.

The Governor is the only defendant appellant now left in this action on behalf of the State.

In conclusion with respect to this proportional representation issue, the designation of the Center Township Negro area implies the singling out on the basis of race and color.

You can't single this area out without looking at the race of the people living there, their economic condition and so on.

Separately districting Marion County -- no separately districting the Center Township Negroes is a singling on the basis of race and color.

You can't draw the lines around it -- around this group, unless you look at them and determine in advance before you draw those lines what is their race, what is their color, what is their creed, so on and so forth.

This Court has uniformly condemned all such attempts, and should do so in this case by reversing a decision on the District Court.

The other issue I want to hit upon briefly is the Banzhaf issue, the striking down, finding all multi-member districts unconstitutional per se.

It has always been thought, it's been implied and accepted that although a voter in a multi-member district had an advantage because he had more representatives from which to --for whom to vote, that this advantage was offset by the fact that he was a part of the larger electorate competing with him to vote for these individuals.

This has been challenged by John Banzhaf and others. Banzhaf analysis briefly is that voters in the Marion County multi-member district were over-represented vis-à-vis smaller multi-member districts and single member-districts within the state.

There was an inherent disparity and it was based on rather complex mathematical equations which he devised.

It was on the basis of this that the Court required, the District Court required the State to reapportion the entire state.

The problem with Banzhaf's theory is that first of all as it relates to this case, no independent study was made of Indiana.

The figures and maps, exhibits, and so on and so forth used by Banzhaf in this case where those supplied to him by the plaintiffs.

Chief Justice Warren E. Burger: I think your time is consumed now, counsel.

Mr. William F. Thompson: Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Manahan.

Argument of James Manahan

Mr. James Manahan: Mr. Chief Justice, and may it please the Court.

I will I believe have to recapitulate what did occur in this case because I believe some confusion has resulted from the presentation which has been made by the appellate as to what took place.

A complaint was filed in the District Court by residents of Marion County and Lake County seeking only the single member districting of Marion County, Indiana on the basis of this Court's prior guidelines in Fortson v. Dorsey, and in Burns v. Richardson.

Justice Potter Stewart: Marion County and in Lake County?

Mr. James Manahan: In Marion -- no, plaintiffs from Marion and Lake County, but seeking only the single member districting of Marion County, Indiana.

The plaintiff from Lake County being for purposes of supporting the Banzhaf theory, for the purpose of breaking up the Marion County district only.

Justice Hugo L. Black: What's the biggest city in Marion County?

Mr. James Manahan: Pardon me?

Justice Hugo L. Black: What is the city --

Mr. James Manahan: Indianapolis, Indiana.

Justice Hugo L. Black: What is city in the Lake County?

Mr. James Manahan: Gary and Hammond, Indiana.

Justice Potter Stewart: And both had a multi-member districts to them?

Mr. James Manahan: There were numerous multi-member districts in Indiana --

Justice Potter Stewart: Yes, including those two counties?

Mr. James Manahan: Both of those were the largest two.

Justice Potter Stewart: Yes.

Mr. James Manahan: Immediately after the complaint was filed, request for admissions 118 in number were filed.

The complaint itself with the 69-page document which is set forth full in the appendix and the request permissions were likewise lengthy.

Before the trial, all of these request permissions which covered every aspect of the complaint were admitted and at the trial, the admitted requests were admitted into evidence without objection.

Also during the trial, numerous other documents from the state library were available, and the court had an abundance of evidence before it, all of which was admitted and was un-contradicted and as we will outline did present a full case under Fortson v. Dorsey, and Burns v. Richardson justifying the sub-districting of Marion County, Indiana, but something else took place before the trial of this cause.

The Kirkpatrick v. Preisler decision was rendered, and with the result that at the very beginning of the trial and it appears at the page 133 of the appendix, Justice Turner, the presiding judge took -- stated that the court was taking judicial notice of the fact that the State of Indiana is malapportioned and thus the court had little choice what to do.

As it developed that the State of Indiana's districts, one of which was before the court, or at that time malapportioned so bad they had greater divergences of population that even the dissenting in opinions, in Kirkpatrick v. Preisler indicated would be allowable.

Justice William J. Brennan: I don't see that -- overall that is the forgetting the single multi-member --

Mr. James Manahan: Completely forgetting the single multi-member district --

Justice William J. Brennan: This was only the more representatives from Marion County than they were entitled to on the basis of proper --

Mr. James Manahan: There were more Senators from Marion County than they were entitled to --

Justice William J. Brennan: Well legislatives are sometimes --

Mr. James Manahan: And exactly the right amount of representatives, they were -- they had one half of this full Senate too much.

The same was too in Lake County, and before it reached its findings, the District Court and the tables at the end of their July 28 opinion reflected they are too are in the appendix at page 382 and 383, the divergences between districts and the mal-apportionment of the traditional kind involving all the counties of the State of Indiana.

Chief Justice Warren E. Burger: If this lawsuit had not been pending, what would -- impact would the 1970 census have had on the State of Indiana in the apportionment problem?

Mr. James Manahan: The normal impact, they would now be preparing to reapportion as they are.

If this lawsuit --

Chief Justice Warren E. Burger: When did the court decide that it should have this accelerated reapportionment, what was the date?

Mr. James Manahan: The Court's stay order in this cause has now made the state-wide mal-apportionment of Indiana, no longer matter of consequence, since Indiana will be reapportioned before there is another election.

Chief Justice Warren E. Burger: You're speaking of this Court's stay order?

Mr. James Manahan: Yes.

Chief Justice Warren E. Burger: I am speaking of the District Court.

What do you suggest led the District Court to try to reapportion the State of Indiana, 6 months or so before it was going to began on the normal schedule?

Mr. James Manahan: To begin a new reapportionment?

They were not scheduled to begin a new reapportionment until this coming January, next month and they were scheduled to hold an election as they did in the meantime.

Chief Justice Warren E. Burger: So at any rate they were quite close to --

Mr. James Manahan: Yes, there was only more election to be held before there would be a reapportionment, or a attempted reapportionment in normal course.

The State of Indiana also has notable record for having a great deal of difficulty for its legislators to agree upon apportionment.

In this case they gave the State of Indiana and adequate length of time to hold a general assembly session and reapportion itself, before they acted.

Justice Potter Stewart: Mr. Manahan, in the posture that this case now presents itself to us, I was wondering why it hadn't become moot?

The 1970 election in Indiana was held under the former apportionment of the system, was it not?

Mr. James Manahan: Yes, it was Your Honor.

Justice Potter Stewart: And like you just told us that in the early next year there is going to be and will be a reapportionment based on the 1970 census?

Mr. James Manahan: Early next year there is scheduled to be, an attempt for --

Justice Potter Stewart: As we know general elections in Indiana I guess till -- until that has become effective, so this thing is just in limbo, and has no applicability to any elections, has it?

It did not apply to the 1970 election, it will not apply to any elections after early next year.

Mr. James Manahan: The court's plan would not conceivably ever apply to any election.

Justice Potter Stewart: Any election, so why isn't this moot?

Mr. James Manahan: The court, the lower court has stated that there will be -- that the Marion County, Indiana must be sub-districted to have constitutional plan.

It also has -- that there is a presumption.

Justice Potter Stewart: Court didn't need to state that.

We all know that any enforcement has to conform to the United States Constitution?

Mr. James Manahan: Yes, but sub-districting, Your Honor and sub-districting is not allowable under the Indiana constitution except under the Supremacy Clause.

And so it was necessary for our Federal Court to find or for the State Court -- for a Court to find under the Fourteenth Amendment, the Fifteenth Amendment and the Supremacy Clause that Marion County, Indiana must be sub-districted otherwise it will not be sub-districted in the next apportionment and the entire case which we have tried will be there again.

Justice Potter Stewart: I see so that the significance of this this three-judge District Court decision is that if it is affirmed or remains undisturbed, the Indiana legislature will be obligated not to create any multi-member districts.

Mr. James Manahan: They can create all the multi-members, definitely.

The District Court's opinion only states there is presumption favoring uniform districts and did cite the Banzhaf theory as well as other matters to show that a natural “one man, one vote” violation does result from having multi-member districts of differing size.

But the single member districting is in no way called for by the lower court's opinion.

Justice Potter Stewart: Well, then why isn't this moot?

If it doesn't even have that much of effect, why isn't it moot?

Mr. James Manahan: The lower court says there must be uniform districting and there is anything but uniform districts in Indiana and it says, they must be small enough such that the vote of the ghetto area which they found to, just as a fact, would not be diluted or canceled out.

Chief Justice Warren E. Burger: Well you mean by that, that in such districts they must have single representatives?

Mr. James Manahan: Not single.

They must be small enough in number, and the court indicated that three-man districts will be small enough in number or perhaps even four man districts.

Chief Justice Warren E. Burger: I want to see how far this goes.

Suppose you have an area where it was demonstrated that an area just is big as the one you have here, same size, same shape.

Same people who were preserving, let is say Germanic culture, essentially spoke German, they had bilingual services in Churches, both Catholic and Protestant and preserve many, many indicia of their own tradition and culture.

Would this Court's orders say that they must (Inaudible) around these people of Germanic origins and let them elect their separate representative?

Mr. James Manahan: No, Your Honor.

Chief Justice Warren E. Burger: And what's it's based --

Mr. James Manahan: Well, the difference --

Chief Justice Warren E. Burger: -- distinguish that from there --

Mr. James Manahan: Your Honor we didn't -- well, greatly we have a difference.

We did prove, we did submit proof in six elements which we believed were necessary under Fortson v. Dorsey, and Burns v. Richardson to require a sub-districting of a large multi-member district.

We did in this case prove the existence of a minority group of the type you described, (Inaudible).

We also proved that they were, that they lived in a contagious compact area so that a difference in districting could make a difference.

We also proved and we think the proof was very substantial that they were sufficient in population in these areas to affect the election or non-election of representatives of them, if there were an impartial districting of smaller districts, not the district drawn calculated to enhance their vote, but simply impartially drawn smaller districts.

Finally, we also proved that they had substantiative interest.

Chief Justice Warren E. Burger: Does the smaller district -- is the smaller district drawn to identify a particular group?

Mr. James Manahan: Absolutely not.

The District with the support group did nothing of a kind, near squares which totally ignore what they found to be the "ghetto area” and at the back of the appellee's motion to dismiss or affirm does appear an illustrate of what was found to be the "ghetto area” and the district line which the court drew.

There are in no sense -- the district lines are no sense coterminous with the boundaries of the ghetto area.

They are a series of squares and near squares which cut through the ghetto area ignoring its existence.

As the District Court said in its original opinion, distinct lines must be drawn with an eye that is color blind.

Justice William J. Brennan: Well is that to say that what you have just been showing us in those squares, there may or may not be multi-member representatives --

Mr. James Manahan: No.

This is the court's plain for Marion County, Indiana.

Justice William J. Brennan: Well, does it permit or not multi-member representation in those squares?

Mr. James Manahan: Oh, these squares happen to be single-member districts, 15-single member --

Justice William J. Brennan: They must all be singles, is that it?

Mr. James Manahan: Well this was not the court's original decision, this was the court's final order, after the State of Indiana reduced the district, these are districts which the court drew.

Justice William J. Brennan: Then, at presently under this judgment, in Marion County, they are all single-membered districts, are they?

Mr. James Manahan: The court drew nothing, but the single-member districts throughout the state.

Justice William J. Brennan: Which is to say, under the court's plan they would have to be single-membered districts?

Mr. James Manahan: Under the court drawn plan --

Justice William J. Brennan: And the only reason that wasn't effective for the last November election is our stay, is that right?

Mr. James Manahan: That's right.

Justice William J. Brennan: Now what is there about the court's judgment setting up single-member districts in Marion county under that claim which means that the legislature may not setup multi-member districts in Marion county in the 1970 reapportionment?

What in the District Court's judgment prevents that?

Mr. James Manahan: Only they are taking continuing jurisdiction.

Justice William J. Brennan: I know but wouldn't there have to be a brand new case?

I gather you brought the whole case under Fortson and Burns on the ground that multi-member districting in Marion County at least was operating in a manner that minimized or canceled out the voting strength of a racial group, wasn't that primarily the -- ?

Mr. James Manahan: That was the only theory.

Justice William J. Brennan: That was the only theory, alright.

And you prevailed (Inaudible) and that's why you got the the ruling that you did?

Mr. James Manahan: Well, we got the ruling.

Justice William J. Brennan: So I mean, and now you’ve got a lot more I guess than you’ve asked for, but the point is, and what I am trying to get to, what is there about that determination as it related to the 1960 and 1965 figures to try the case which means that there is any obstacle whatever that a Indiana legislature reapportioning under a plan precisely like that one which in this instance for Marion County at least, the District Court struck down.

Mr. James Manahan: You mean multi-member districting is different?

Justice William J. Brennan: That's right.

Mr. James Manahan: Simply the court's declaratory judgment in effect, that such districts do have an invidious affect and do dilute the vote --

Justice William J. Brennan: In other words, it's not the factual record, it’s the Banzhaf theory, is that it?

Mr. James Manahan: No, this is the court's finding specially that, the multi-member districting of Marion County has an invidious effect which dilutes vote.

Justice William J. Brennan: Did at that time, at the time of the trial?

Mr. James Manahan: At the time of the trial, yes.

Justice William J. Brennan: Well who is to know that will be so under the new -- under the reapportionment based on the 1970 census?

Mr. James Manahan: The likelihood of any -- they carried beyond, find their findings beyond the 1960 census in their decision.

Their decision also encompasses social statistics as late as 1967 and there was no indication that there will be any --

Justice William J. Brennan: But isn't there a whole new ball game on reapportionment in Indiana and every other state based on the 1970 census?

Mr. James Manahan: On the matter of a minority group existing within a county where we have statistics as late as 1967 --

Justice William J. Brennan: You say not?

Mr. James Manahan: I would say not.

Justice William J. Brennan: I see.

Justice Byron R. White: Well, would anybody be violating any court injunction if it -- if he enforced or he passed or enforced a multi-member districting system in Marion county under the new census?

Mr. James Manahan: It would not.

Justice Byron R. White: So you are just saying that in the face of this judgment, in the face of this decision legislators just won't establish a multi-member district in Marion county?

Mr. James Manahan: I said they would not be violating an injunction if they establish a multi-member district in Marion county, and under the Indiana constitution without a judgment against them, they will have to have a multi-member senate district in Marion County, Indiana.

They cannot sub-district a county for the state senate under the Indiana constitution.

Justice Byron R. White: Well how about in the House?

Mr. James Manahan: Yes, they can.

Justice Byron R. White: Well will legislators or will they not feel bound by this decision not to establish a multi-member house district in Marion county?

Mr. James Manahan: They will feel very much guided by this Court's decision and there is no decision and if the stay remains in effect and the lower court's opinion that's had no decision, they will take their chances on the multi-member district.

Justice Potter Stewart: Of course this Court's decision is that if this case has become moot, the consequence would be as I remember that we would vacate the judgment of the District Court, it would not be the end of it, isn't it?

Mr. James Manahan: That would be end of the case.

Justice Potter Stewart: Then why isn't it moot?

I still don't understand the answer to my question, why isn't it moot?

Mr. James Manahan: The District Court did render declaratory judgment to the effect that there is in Marion County, Indiana based on 1967 and a later statics a ghetto area with a minority group residing therein which has substantive interest which diverges significantly from those as a county as a whole and then in response to those interests engages in a vote in pattern, which diverges significantly from that as a county as a whole, and that the size of the county, the size of this multi-member district is so great that it dilutes and cancels out that significant vote by that there was a significant substantiative interest.

That declaratory judgment was rendered by the lower court, and it is very significant what type of districting will be drawn in the forthcoming general assembly whether or not that declaratory judgment is upheld in this Court.

Justice Potter Stewart: Well, but it may that finding only in connection with the complaint that asked for relief by way of reapportionment at least of Marion County, looking toward elections that have now taken place.

Mr. James Manahan: And hopefully toward --

Justice Potter Stewart: So why isn't it moot?

Mr. James Manahan: -- and towards all future elections.

Justice Potter Stewart: Well no.

We all know you have told this that in future elections, the legislature is under an obligation, next month, based on brand new figures, the 1970 census figures to reapportion the entire state.

Mr. James Manahan: Yes and --

Justice Potter Stewart: -- for all of your election.

Mr. James Manahan: And in Marion County, they are obligated either under the Indiana constitution to have a multi-member senate district in Marion County, Indiana or under the Supremacy Clause of the United States Constitution and the Fourteenth and Fifteenth Amendment to have smaller districts in both Houses in Marion County, Indiana.

Justice Potter Stewart: I still don't understand your answer to my question?

Mr. James Manahan: If this were a simple minor on reapportionment case, and the things that happened which have happened, the case would be totally moot.

It is not moot --

Justice Potter Stewart: And what distinguishes it from a minor on reapportionment case?

Mr. James Manahan: Because it is a redistricting case as opposed to a reapportionment case.

It was a finding that a certain type of district is unconstitutional, not a certain specifically drawn district is unconstitutional because there is too few or too many people in it, but because a certain type of districting, and a certain part of a certain stage is unconstitutional.

Justice Potter Stewart: That configures that have now may become obsolete because of the 1970 census?

Mr. James Manahan: They are based on figures as late as 1967.

Justice Potter Stewart: Well, that's not late, because we had 1970 census, is it?

Justice Hugo L. Black: Well, your point is without a federal decree back on the Indiana Constitution --

Mr. James Manahan: Yes, Your Honor.

Justice Hugo L. Black: Under the Indiana constitution, the evil would be difficult -- three-judge district court found to exist would be repeated.

Mr. James Manahan: It would have to be repeated, yes.

Justice Hugo L. Black: And only a federal decree can --

Mr. James Manahan: Yes, Your Honor.

Justice William J. Brennan: Well, does that include the rest of the state?

What happens to the rest of the state?

Mr. James Manahan: In the rest of the state, they would be allowed to break up no county for purposes of drawing senate seats under the Indiana constitution.

Justice Hugo L. Black: In other words what the federal decree does is to preserve the ground rules for the “one man-one vote” principle in this setting?

Mr. James Manahan: Yes, Your Honor.

It would be a great problem under Kirkpatrick v. Preisler for them to draw senate seats without crossing county lines, but they can certainly draw multi-member district senate seats without cutting, breaking up counties and unless the Supremacy Clause requires breaking up of counties in the Indiana Senate, there will be multi-member districts in Marion County, and Lake County of different size in the Indiana Senate.

Justice William J. Brennan: May I ask again Mr. Manahan, I gather under the Court's plan and say each of those sub-districts would have had, but one white senator.

Mr. James Manahan: One representative and each of them was numbered 1 through 100 statewide and the odd numbers were paired with even numbers degree at senate seats.

Justice William J. Brennan: And then in the senates case, there are what districts with multi with multi --

Mr. James Manahan: No, they are all one senator.

Justice William J. Brennan: All one senator.

Mr. James Manahan: Consisting of two legislatives -- representative districts.

There'd be 50 senators and 100 representatives.

Justice William J. Brennan: Well, forgive my confusion.

You've got two Houses?

Mr. James Manahan: Yes, Your Honor.

Justice William J. Brennan: Now what under the court's plan is to be the representation in every instance a senatorial district has but one senator?

Mr. James Manahan: Right.

Justice William J. Brennan: And every instance, what's your lower House called?

Mr. James Manahan: The House of Representatives.

Justice William J. Brennan: And then the House of Representatives, every district has but one representative?

Mr. James Manahan: But one representative and every senatorial district is made up of two representatives.

Justice William J. Brennan: Yes, but there is only one senator -- which means if we were to affirm what the district court did then is it your position that for the 1970 reapportionment, there could be no compliance whatever with the Indiana constitution provision for multi-member districts either in the House of Representatives or in the Senate?

Mr. James Manahan: There are no requirements with respect to the House of Representatives, with respect to the Senate --

Justice William J. Brennan: Well, how about with the respect to the House of Representatives?

Could there on -- if we affirm, could there be throughout the state in the 1970 reapportionment any multi-member districts?

Mr. James Manahan: There could be multi-member districts, but they would have to all be uniform throughout the states if you affirm.

Justice William J. Brennan: By which you mean that -- it might be a number of multi-member districts if the multi-membership means two or three, they all have to be two or three in every district?

Mr. James Manahan: Yes, Your Honor.

Justice Byron R. White: But, you can still have some single-member district?

Mr. James Manahan: No.

Justice Byron R. White: So you couldn't have any single-member district (Inaudible) multi-member districts?

Mr. James Manahan: Yes, uniformly --

Justice Byron R. White: The district court held that the only practical remedy for the unconstitutional deprivation that is found in Marion County was to create single-member districts in Marion County.

So that's a narrow for the future that this is the only constitutional way of distributing Marion County.

Mr. James Manahan: No, Your Honor.

What they drew was --

Justice Byron R. White: I am just reading from the judgment.

Mr. James Manahan: Yes, but they were drawing up a plan.

They were actually --

Justice Byron R. White: No, this was before he even drew a plan.

Mr. James Manahan: I believe – on what page Your Honor?

Justice Byron R. White: On page 332.

That is the present -- under the present the Indiana apportionment statute, deprive this group, the ghetto area people of equal protection of the law.

And it says hence those apportionment -- the present legislative apportionment statute related to Marion County as to both Senate and House are unconstitutional and void.

The court finds that the only practical remedy for such unconstitutional deprivation of voting strength is the elimination of the large multi-member House or Senate districts in Marion County.

Mr. James Manahan: Yes, but not necessarily replacing them with single membered districts.

Justice Byron R. White: Now what do you expect in the case?

Mr. James Manahan: That this says that districts are two large, and they must be smaller.

Justice Byron R. White: And he goes on and says that there should be single-member districts.

Mr. James Manahan: No, in fact they even suggest three-man and two-man districts in this opinion.

Justice William J. Brennan: And yet when they came to constructive plan of their own, it was all single-member.

Mr. James Manahan: There was a good reason for that, Your Honor.

They wanted to give every legislator --

Justice William J. Brennan: It maybe a good reason, but the fact is you are suggesting that the holding was that if I get what you just said, the legislature is still free to construct multi-member districts so long as there are a smaller number of members in each district?

Mr. James Manahan: Yes, and so long and the are uniform.

Justice William J. Brennan: Yes and throughout the state.

Mr. James Manahan: Right.

Justice William J. Brennan: But when they came around however constructing their own plan and for Marion County?

Mr. James Manahan: No, for the entire state, they did single-member districts.

Justice William J. Brennan: So single-member districts under the Court plan --

Mr. James Manahan: Is what they drew, yeah.

Justice William J. Brennan: And you say there is an explanation for that?

Mr. James Manahan: Yes, they want to set up rules in advance so that different groups could participate for both plans.

They needed a rule such that a comparison could be made between plans.

So they made a least political decision, just said, well all single-member districts and we'll take the plan that's best that has the least population deviation which is what they did.

The population deviation turned out to be less than 1% throughout the state, and that was the purpose of it.

And I would like to turn immediately to the question of uniform districts and why we believe they are constitutionally required in Indiana.

There was a very strong presentation in the lower court.

It was un-contradicted and both sides affirmatively presented affirmative proof that when they are in the Indiana general assembly, multi-member district delegation, at least that went from Marion County vote in bluff at the behest of the party organization and that they do not vote on their own, and there was very few matters.

It also was proven that they are elected in bluff that during the past 40 years, only twice has a member of a party which lost generally in an election been elected to the Indiana general assembly from Marion County, Indiana.

During the other elections, with those two exceptions, either one party slate or the other was elected.

The evidence also showed that there during all primary elections in recent memory, the official party organization slate was nominated to run for the Indiana general assembly and persons not supported by the organization slate, were not nominated in such primary.

The evidence also showed that those persons who became, on the organization slate were throughly controlled by the central committee of the party organization.

And so in effect, this multi-membered district delegation which is and has historically been elected from Marion County is a unit rule delegation controlled at one source.

This has two results.

This demonstrates that parochial interest such as those of a ghetto area could not realistically be represented, and Pat Chavis, the plaintiff who had been the sole black senator in the Indiana general assembly during the past 10 years, represented that he could not effectively represent his people because he had to do in each vote what his county chairman wanted him to do.

And we presented evidence showing what present and past members have done on role call, voting constantly in bluff.

This is pertinent to the dilution of black people and the ghetto area of Marion County, Indiana and is also pertinent to the district court's finding that multi-member districts of different size can be inherently unconstitutional.

What – what it amounted to was that the proof showed that the multi-membered district allegations are the same as if you have weighted voting because they voted as one in Marion County, it's the same as having one representative with 15 votes, and one from Lake County with 11.

Justice Potter Stewart: Is there any claim in this -- either claim or finding in this case of racial discrimination as such?

Mr. James Manahan: No.

The history is that we have never had single-member districts and have never broken up any county for any districting of any kind in the general assembly in the history of the State of Indiana.

So necessarily, there could not be proof – that there was a deliberate design in multi-member districting.

It came out before there were black people in Indiana, multi-member districting --

Justice Potter Stewart: So there is not a claim or much let alone a finding of racial discrimination?

Mr. James Manahan: We did the claim, but we did not present very substantial evidence and there was no finding.

Justice Potter Stewart: This isn't a Gomillion against Lightfoot kind of case, is it?

Mr. James Manahan: There was no Gomillion finding.

Justice William J. Brennan: Now, I gather what you relied on was, I forgot, Forstson or Burns.

Mr. James Manahan: Yes, both cases of state --

Justice William J. Brennan: Which said either decidedly or --

Mr. James Manahan: Otherwise.

Justice William J. Brennan: Or otherwise, having that effect, wasn't that it?

Mr. James Manahan: Yes, Your Honor.

Justice William J. Brennan: And so you tried to prove decidedly but you didn't succeed, but it doesn't matter to you?

Mr. James Manahan: No, we did prove the otherwise and we didn't try it very hard to prove --

Justice Potter Stewart: It has been my impression that in the absence of rational discrimination as such, our cases have held that the sort of considerations that entered into the District Courts' decision were not only -- not required by the constitution, but that they were prohibited by the constitution.

I am thinking of cases such as Carrington against Rash that said that you couldn't regulate the franchise depending upon your prediction as to how people are going to vote.

I am thinking about Wells against Rockefeller that said New York couldn't constitutionally try to justify a three apportionment scheme by showing any community of interest, but it had to be all the matter of mathematics.

Am I mistaken in my reading of those cases?

Mr. James Manahan: No those cases say and Fortson v. Dorsey and Burns v. Richardson say what they say and we've brought this entire action based upon what those two majority opinions of this Court and almost anonymous opinion in one case said, and those are the two decisions we are specifically relying on.

Their language and what they said would count as a good redistricting case.

Justice Byron R. White: If the poor blacks or the poor generally in Indianapolis was scattered evenly throughout the city you would have no case?

Mr. James Manahan: That is correct.

Justice Byron R. White: Even though they would nevertheless have all the same interests that they now have.

The only thing is there wouldn't be anything to do about it?

Mr. James Manahan: There would be no invidious effect because there would be no effect.

The districting would not effect their interest at all.

Justice Byron R. White: Well, their other interest may not be affected, I mean, may not -- their interest wouldn't be any more effectively represented than they are now?

Mr. James Manahan: That is correct.

So there would be no remedy to do it and we would have no case.

That's why we dared to show that they were compact, and I think my time is expired.

I thank the Court for hearing the cause.

Chief Justice Warren E. Burger: Your time is fully consumed.

Justice Potter Stewart: I would like to ask the state if I may Mr. Chief Justice his views on this question of mootness of this case, because I didn't find any such suggestion in your brief?

Rebuttal of William F. Thompson

Mr. William F. Thompson: Yes Your Honor, let me say this.

The District Court, in its December 15 order retained permanent jurisdiction of case.

They said all future claims by these plaintiffs against all future legislative acts, that's number one.

Number two, 65 -- the state has been permanently enjoined from enforcing the 1965 Act.

As a technical matter, that's the only apportionment act we have at this time.

Well legislation -

Justice Potter Stewart: There is going to another election under that act, is there?

Mr. William F. Thompson: I would not -- I wouldn't expect.

Justice Potter Stewart: With or without this Court order?

Mr. William F. Thompson: I would not expect one, Your Honor.

No.

Unknown Speaker: (Inaudible)

Mr. William F. Thompson: No Your Honor, I definitely don't think.

The legislature, because of this decision in the District Court, the legislature is, to use a phrase under the gun, they have to break up the Marion County multi-member district.

Justice Hugo L. Black: Why would they?

Mr. William F. Thompson: Pardon me.

Justice Hugo L. Black: Why would they?

Mr. William F. Thompson: Why would they?

Justice Hugo L. Black: Yeah.

Mr. William F. Thompson: Your Honor, it's a --

Justice Hugo L. Black: If it's a reapportionment, then we would have to set aside, just vacate it as moot, and wipe it off the book, why would the legislature be hampered in its reapportionment on 1970 census?

Mr. William F. Thompson: Because they could very well expect the plaintiffs to go back to the District Court, the very same District Court obtain the very same thing, that they have obtained in this case.

Justice Hugo L. Black: Well, they might attack it, but they might not succeed?

Mr. William F. Thompson: Well, Your Honor, in the state's view of it, the record in this case was so thin that if I could do that on that, they could do it on anything.

Justice Hugo L. Black: I don't think how this judgment of Court in this particular reapportionment (Inaudible) the constitutional requirement for reapportionment every 10 years, by the legislative body?

Mr. William F. Thompson: Would you repeat that please Your Honor?

I don't understand the question.

Justice Hugo L. Black: Well, as I understand it, constitution requires reapportionment, doesn't it?

Mr. William F. Thompson: Yes Your Honor.

Justice Hugo L. Black: When?

Mr. William F. Thompson: Well the constitution as interrupted by this Court in Reynolds where this Court says that decennial reapportionment ought to be adequate, constitutional decennial reapportionment ought to be adequate.

Justice Hugo L. Black: But, isn't it required in the constitution that there be reapportionment based on each census?

Mr. William F. Thompson: Well, that's Congressional districts.

Justice Hugo L. Black: What?

Mr. William F. Thompson: Congressional districts Your Honor.

Justice Hugo L. Black: Yeah, but --

Mr. William F. Thompson: But I don't think that pertains to --

Justice Hugo L. Black: (Voice Overlap) reapportionment.

Mr. William F. Thompson: Well, I cannot answer that question Your Honor, I don't know.

I don't know what the state constitution provides in that respect.

Justice Hugo L. Black: Well, I would assume whatever it is, if we were set this aside, I don't say we are sure that we will, if we have to set aside as moot, making judgment, the legislature wouldn’t be bound by the Court’s holding with reference to a future apportionment, would it?

Mr. William F. Thompson: Well no, in a sense of being bound, they would --

Justice Hugo L. Black: That would give somebody an argument.

Mr. William F. Thompson: Well, but as a practical matter Your Honor, the State can expect to be back in Court on the same issues, the same District Court on the same issues and if they don't -- if they provide essentially same plan, complying with Reynolds --

Justice William J. Brennan: Do you think, you think however we decide this case, the state is going to be out in court?

Mr. William F. Thompson: I would like to think Your Honor we would not be back in court on Banzhaf's analysis and separately districting --

Justice William J. Brennan: When is the next election -- next legislative election?

Mr. William F. Thompson: Well, we've just had an election for the legislature --

Justice William J. Brennan: I am talking about the next one?

Mr. William F. Thompson: Well, the next one is 1970, 1972 sure.

Justice William J. Brennan: So you have got ample time to have a new apportionment under the statute?

Mr. William F. Thompson: Yes, Your Honor.

Of course this --

Justice William J. Brennan: The legislature has been very good to agreeing on one, has it?

Mr. William F. Thompson: Let me say this Your Honor.

The legislature means in January of 1971.

This action was started in January 1969, and to conduct a 1970 election we had to get stay, so that if we were to – if the Court were to say we would be back to where we were two years from now we will be back on the same problem.

Justice William J. Brennan: Well on the same or some other one?

Justice Hugo L. Black: Well, somebody might.

(Inaudible) don't know what the legislature is going to do on this?

Mr. William F. Thompson: Right Your Honor, we don't know.

Justice John M. Harlan: You think it's (Inaudible)

Mr. William F. Thompson: No, I don't – it's my position – it's state’s position if the case is submitted.

Justice John M. Harlan: Well you don't want to go through the litigation (Inaudible)

Mr. William F. Thompson: Yes Your Honor, and then we would have to -- if this Court didn't decide these issues.

Justice Potter Stewart: That would be on different facts --

Justice Hugo L. Black: -- in a different case, they might never bring the case.

Chief Justice Warren E. Burger: The legislature --

Justice William J. Brennan: The legislature (Inaudible)

Mr. William F. Thompson: The district court said it would in it’s December 15 order --

Justice Hugo L. Black: I would imagine legislature knows enough about that to try in some way to wipe out the alleged inefficiency and defects in the reapportionment.

Mr. William F. Thompson: Well, Your Honor as the state interprets -- as the state interprets the decisions of this Court -- multi-member district in Marion County is okay.

It meets constitutional muster and that Districts of different sizes within the state meets constitutional muster, but that's not what the District Court says.

Chief Justice Warren E. Burger: Mr. Justice Blacks and before it – if we should vacate, set aside as moot, then what the District Court is said it is not very relevant to anything, is it?

Mr. William F. Thompson: The point that this Court says vacates or decides the case as moot has no significance.

Chief Justice Warren E. Burger: That's all.

Thank you gentlemen.

The case is submitted.