WHITE v. REGESTER
Argument of Elizabeth B. Levatino
Chief Justice Warren E. Burger: We'll hear arguments next in 73-1462, White against Regester.
Mrs. Levatino, you may proceed when you're ready.
Ms Elizabeth B. Levatino: Mr. Chief Justice, and may it please the Court.
This is an appeal from an order issued by a three-judge federal court for the Western District of Texas sitting in Austin, which held the multimember district scheme embodied in the Texas plan for reapportionment, unconstitutional.
The State of Texas believes that the plaintiffs in this case have failed to produce evidence which meets their burden of proof such as would warrant the suspension by a federal court of multimember districts, a policy consistently utilized in the Texas system of appropriation for its State House of Representatives.
We are not here to debate or to defend the merits of whether or not single-member district should be used or multimember district should be used, but rather viewed from the constitutional perspective, set forth by this Court, that is a decision which at this point should be left to the legislature.
Because the record in this case simply does not support the proposition that multimember districts have resulted in a loss of access or in less opportunity of a minority group to participate in the political processes leading to nomination in election, and therefore does not support the action taken by the court below.
We are asking this Court to reverse the court below because that decision was based on incorrect constitutional standards, evidence insufficient to support the correct constitutional standards as well as the erroneous standards used, and the failure of the court to afford the Texas legislature, the opportunity to function it -- to exercise its proper function of reapportionment.
The weakness of the plaintiff's case and the opinion of the majority below, particularly in dealing with the evidence before the Court is strikingly shown by the well-reasoned and exhaustive dissent of Judge Wood.
Judge Wood, as you may remember, only two years before, clearly agreed with the other two members of the panel that adequate and sufficient evidence was presented to the court to invalidate the multimember districts for Dallas and Bexar counties.
This Court has consistently and repeatedly insisted that the challenger of multimember districts produce evidence which is sufficient to show that because of the multimember district, members of the minority group within the district are afforded less opportunity to participate in the political processes, leading to nomination in election, thereby minimizing or canceling out the voting strength of the racial or political element within that district.
Justice Byron R. White: Counsel, what was the issue when this case was remanded here?
Was the only issue in this last phase of the case the multimember districts?
Ms Elizabeth B. Levatino: Basically, Your Honor, that is correct.
It was the multimember districts throughout the scheme.
Justice Byron R. White: But they existed only in certain areas?
Ms Elizabeth B. Levatino: They exist -- there were 11 remaining multimember districts.
The plaintiffs intervened a plaintiff's --
Justice Byron R. White: But if relief was given in each -- if all of the multimember districts were made single-member districts, nothing would happen to all the other districts in the state.
Ms Elizabeth B. Levatino: That is correct, Your Honor, depending on how the single-member districts were created.
Additionally, the court below did find racial gerrymandering with regard to Galveston, which would require an actual redistricting not on the basis of multimember, single-member districts, but a changing of the scheme in that area which could have a domino effect to affect the entire reapportionment scheme.
Justice Byron R. White: Why was this multimember district issue, since it affected only certain localities in the state?
Why was it a three-judge court issue?
Ms Elizabeth B. Levatino: Your Honor, I believe that one of the major reasons that it is a three-judge court issue is that this case attacks all of the remaining districts which is a statewide policy, and as this Court has so recently held in Chapman versus Meier, subject matter of this kind is regular grist for the three-judge court, and that route typically has been employed under conditions similar to those present here.
And, of course, this Court took jurisdiction in that case.
Justice Byron R. White: If it only concerned maybe one of the multimember districts out of several it might be different?
Ms Elizabeth B. Levatino: It maybe different, Your Honor, but I don't believe that the posture of this case is attacking just one or just another.
It really is attacking the policy decision of the Texas legislature to utilize multimember districts et all.
These district range from two multi -- two members up to 8 -- up to 9 members; it's the whole policy.
Justice Byron R. White: And all of them -- all of the multimember districts without exception were under attack on this remand?
Ms Elizabeth B. Levatino: Yes they were, Your Honor.
I believe it -- I do not want to mislead the court at trial plaintiffs conceded that they could not find evidence of discrimination in one of the two-member district which was Hidalgo County and they changed the challenge in Galveston County from a challenge to the multimember district to the racial gerrymandering challenge.
Although, the pleadings initially challenged all of the multimember districts that remained in the county.
It is the lack of access or opportunity to participate in the political processes which must be shown, yet the majority below saw fit to devise another new kind of test.
This test can't be supported by the opinions of this Court nor by basic logic, neither can it be used to bootstrap a record which would otherwise be insufficient to sustain holdings of unconstitutionality.
This new test consists of an aggregate of four factors.
These factors are restricted access of the minority to the slating process of particular party nominations, the consistent use of racist campaign tactics to defeat minority candidates or those champion minority concerns, the indifference or hostility of the district-wide representatives to particularize needs of the minority and the inability of minority groups to obtain representation in proportion to their percentage of the population in the district.
As set out in our brief we believe these factors operate primarily in a “get one win three” manner, therefore, always adding up to an aggregate, but beyond that I'd like to consider each factor individually, beginning with this--
Justice Potter Stewart: What kind of a matter?
Ms Elizabeth B. Levatino: In a “get one win three” manner.
By that I mean, Your Honor, if you look at the three factors if you could find that there was no access to the slating process--
Justice Potter Stewart: Then we get the other two along with it?
Ms Elizabeth B. Levatino: You automatically get the other two, so it adds up to three and thereby you win the game.
Justice Potter Stewart: I think they are not distinct or separate?
Ms Elizabeth B. Levatino: Independent, they are functions of each other, basically.
Beginning with the factor regarding the election of a minority group in proportion to their population of the district, I believe this factor has previously been rejected by this Court in Whitcomb and more recently in Chapman as evidence of non access.
Indeed, the record in this case actually reflects that in two of the districts, Nueces and El Paso, members of the minority group have been consistently elected in the past decade to the House of Representatives as well as to other district-wide governmental races.
In the 1968 and 1970 elections, Nueces sent a delegation to the House which consisted of Representative Truan, a Mexican-American, Representative Hale, an honorary member of the Mexican-American Group and Sissy Farenthold widely known for her interest and concern for the minority people.
In the latest election, a third district Travis elected two members of two different minority groups to two out of four seats and that delegation is now composed of its dean Sarah Waddington a 30-year-old woman, a Mexican-American, Gonzalo Barrientos, who this time beat the then 17-year Anglo incumbent, Mrs. Delco, the Black woman who the majority characterized her election, early election to the school board as a distortion in the voting pattern and finally a 32-year-old male Anglo.
Now no one can guarantee that this pattern will continue, but then no one can guarantee that it won't continue.
At the very least, it is, and I believe, should be considered as strong evidence that minority groups do have access to the political process.
Furthermore, while the plaintiffs in the court below were taking great pains to emphasize the relative failure of the minorities at the ballot box since reconstruction, the record also was reflecting that minority groups, both leaders and individuals, endorsed and voted for non minority candidates, thereby electing many of these candidates and making them their -- legislators of their choice.
Proceeding to the next factor, the indifference or hostility of the representatives to the particularized minority interest, this too has never been referred to by this Court --
Justice Byron R. White: Just as before you leave this one factor, suppose there's a ten-man multimember district, ten representative multimember district, and each election, one party slates three out of the ten as -- slates three Negroes our of the ten, which is roughly proportional to the population, I assume, and there is an opposing slate from another party.
And each time all but three, all but the three Negroes are elected, and when the party slates all ten Anglo, they all ten win, this party is clearly in a majority, let's assume, that slates the three.
The only is there is three three Negroes who lose all the time, in this multimember district, they just do?
Ms Elizabeth B. Levatino: I think, Your Honor, that that is relevant access, I mean, relevant evidence of access.
However, this Court has said that election is not paramount to their --
Justice Byron R. White: Yes, but we didn't have any -- in Whitcomb, you suggest Whitcomb, but Whitcomb never had anything like that.
There in Indianapolis, the minority won if the party won?
Ms Elizabeth B. Levatino: I submit --
Justice Byron R. White: And in the example I just gave you, the minority didn't win even if the party wins.
Ms Elizabeth B. Levatino: Your Honor, I submit to you that we don't really have the situation that you're suggesting in this case either.
Much has been made that Texas is a --
Justice Byron R. White: What if you did though?
Ms Elizabeth B. Levatino: If you did, I believe that first of all, the fact that the minority was slated --
Justice Byron R. White: Because arguably that is the situation in some of these, at least it's argued to be the situation in some of these?
Ms Elizabeth B. Levatino: It is argued to be the situation, yes.
If you had the situation, first of all that the minority candidates were consistently slated, I believe that is evidence of access.
Justice Byron R. White: Yes.
Ms Elizabeth B. Levatino: But I believe you also have to look to why some of these candidates were not elected.
I believe that as you well know the function of election includes issues, personalities, many things, other than merely Blacks only voting for Blacks and Whites only voting for Whites.
In the county, I believe, you're referring to, Mr. Bobby Webber (ph), received 48% of the vote in that particular multimember district, the Tarrant County district.
Now that certainly shows that he got more than just the Black votes in that area.
I think that would be a very close question, but I do not -- I think that the question is that close in these districts as the hypothetical which you presented.
With regard to the ability to represent the minority, this also has been rejected as significant or has never been affirmatively said to be significant in evaluating the particular access to the political process, but the court, even if it were relevant, the court below didn't really apply this factor.
They applied their own factor, which required some kind of legis -- affirmative legislative action on behalf of all the members of the delegations.
The reason for this change was that the record generally reflected non hostile or even sympathetic voting records in some districts, clear concessions of excellent voting records and certainly, sympathy for the needs of the minority.
In one county, the majority went even further from its pronounced test by finding that a delegate was deficient because he could not empathize with the minority, even if he could sympathize with it.
This is only one more example of the weakness of the plaintiff's case and the obvious attempt by the majority to provide that which the plaintiffs did not.
The third factor, of course, is the consistent use of racist campaign tactics, a policy or a strategy, which we all deplore.
But again, which this Court has never related specifically to the issue of access.
The mention of it in declaring Dallas County multimember district unconstitutional, included the inference that such tactics must be successful, an element now discarded by the majority.
Additionally, as pointed out by Judge Wood, the few cited instance of the use of such tactics, a whisper campaign in El Paso for a mayor's race or school board races in the 50s and 60s in Nueces County, this kind of evidence hardly rises to the level of consistent and certainly not to the level of proof required in a case of this nature.
Chief Justice Warren E. Burger: Will you conceive that the court may appropriately take into account what the label and for purposes of this case are racist to campaign tactics?
Ms Elizabeth B. Levatino: I believe that they could take it into account, Your Honor, but I do not believe it could be one in a factor -- checklist of factors the way these are set up, that would especially if they had not been successful as the record generally shows, that it would rise to the level of proof which this Court has required.
Justice William H. Rehnquist: Well, for what purpose could the district court take it into account?
Ms Elizabeth B. Levatino: I believe, the reason it could be taken into account would be to show that black or brown, minority candidates could never be elected or that their election was totally impossible in especially a large district.
This is not reflected in this record, however.
Chief Justice Warren E. Burger: This position doesn't give you any trouble with the First Amendment?
Does the First Amendment guarantee candidates or even to engage in what everyone would condemn in terms of descent campaigning, but doesn't the First Amendment guarantee them the right to say what they want to say in a campaign?
Ms Elizabeth B. Levatino: I believe that everyone can say what they want to say in a campaign, Your Honor.
Chief Justice Warren E. Burger: Couldn't a Negro candidate go out in campaign directly attacking Whites as Whites and couldn't Mexican-American do the same thing or a White?
Ms Elizabeth B. Levatino: I believe you would have the possibility of doing that, Your Honor.
Chief Justice Warren E. Burger: Then are you saying that the court may take into account conduct which is protected by the First Amendment to -- in this formula as the court obviously did here?
Ms Elizabeth B. Levatino: Taking into account conduct which is--
Chief Justice Warren E. Burger: Took into account, what are labeled in this case as racist campaign tactics?
Ms Elizabeth B. Levatino: Your Honor, I do believe that the court can take this into account, but as I said the way this court used a checklist factor, the use of these candidate -- and adding it all up supposedly independent of each other, the factors didn't work that way.
And additionally, the racist campaign tactics cited by the court as pointed out by Judge Wood were not, certainly not consistent and in most of the instances, we're not successful.
So what -- its relevance to the access, in this case, I believe is not sufficient to sustain a finding of unconstitutionality.
Justice William H. Rehnquist: Well, certainly the meaning of a Democratic government, I would think is that when I go into the ballot box and vote for a candidate, I can vote for him for a good reason, a bad reason or for no reason at all.
If I want to vote against a man because he's Black, if I want to vote for him because he's Black or White or Brown, that's my privilege as a citizen, I would think?
Ms Elizabeth B. Levatino: Yes, sir.
I do not pretend to say that you can't vote for any person for any reason.
Justice Byron R. White: what difference whether [Inaudible] consistent voting [Inaudible] against any kind of minority and that's the reason to disestablish a multimember district, that's the question?
Ms Elizabeth B. Levatino: No, Your Honor, I do not believe on its own grounds that is enough of a reason.
This Court has said you have to show denial of the opportunity to participate.
The fact that a racist campaign tactic is used does not say that the minority group in question is not participating in it.
It maybe noted, it may go into the totality of circumstances, but in and of itself, it is not a grounds for declaring a multimember unconstitutional.
The final factor is the restricted access of the minority to the slating of candidates for party nominations.
This, we believe, is a valid factor and we believe it's the only one which this Court has heretofore approved and set out is something that should be shown, in fact, must be shown.
However, it should be pointed out that while Texas much has been made that the fact that Texas is a one-party state, the primary elections and activity prior to the primary election reflect just as intense political battles between conservatives, liberals, business labor as is reflected between the major parties in any other states and I believe, you must view the slating procedure in that nature.
The record reflects that in only two counties, Tarrant and Jefferson are there any cognizable, formalized groups which consistently endorse candidates.
Minorities have received that endorsement in both counties.
This is a far cry from the situation found by this Court to exist in round one of this particular case where virtually complete control over the candidates and political processes in Dallas County was exercised by the Dallas Citizens of Responsible Government, the DCRG.
Additionally in this case, the record shows that endorsement of any one group in any one district is not tantamount to election.
However convenient, this checklist approach of the majority maybe, it cannot be supported by the record nor by the constitutional standards set out by this Court.
This Court in fact has never utilized a checklist and inferentially rejected its use in Whitcomb as the dissent of Justice Douglas showed, all of the factors which were previously set out in Burns versus Richardson were existing in the Whitcomb Indiana district and yet it was upheld as constitutional.
Furthermore, the districts in questions are smaller than any heretofore invalidated by this Court.
These districts range in size from one electing only 6% of the Texas House of Representatives down to ones electing barely 1% or 2 out of 150 members of the Texas Legislature.
This simply is not a case involving extremely large districts electing a high percentage of legislative representatives.
The State of Texas believes that whether or not single-member districts are desirable in any of these districts, and if so, the specific design of the districts are political questions at this point and are not constitutionally required.
The Texas Legislature does not act in the area of reapportionment only one pushed and pulled by a Federal Court, although their actions maybe subsequently challenged, and at least in this decade were two-for-two on that score.
In fact, the legislature meeting in regular session right now, for the first time since this Court issued its opinion in round one of White versus Regester is today this Wednesday, conducting a hearing on two single-member district Bills for Tarrant County.
Single-member district Bills have also been introduced for other counties and are being drafted for the remainder.
On the basis of the record in this case, on the erroneous constitutional standards used by the majority and on the failure of the court below to afford the Texas Legislature its rightful opportunity to reapportion, we ask that the decision of the District Court be reversed.
Chief Justice Warren E. Burger: Mr. Richards?
Argument of David R. Richards
Mr. David R. Richards: Mr. Chief Justice, and may it please the Court.
This case involved on remand the challenged nine multimember districts existing in the state.
As it now stands, seven of those districts were invalidated under the Principles of Regester and are here before the Court.
I, Mr. Gladden, with whom I am sharing time is going to discuss Tarrant County District, I am going to attempt to discuss the ballots.
From 1900 to 1966, no Negro citizen of Texas was a nominee of either the Republican or Democratic party for any public office in Texas, any elective office.
It was not until 1966 that a Negro for the first time was elected to the Texas Legislature.
One of those is now serving in Congress, and that's Congresswoman Barbara Gordon.
When I came up yesterday on the airplane, I picked up the current Atlantic Monthly to go outside the records for a moment, which devoted this month to Texas and there is an article by Ms. Jordan in it, and she says what I think is quite accurate.
Until this Court decided to get into apportionment, there was no chance in Texas or in the South for blacks to be elected to office.
It was only when Harris County as a consequence of this Court's decision requiring one-man-one-vote in both houses of legislature, required re-districting in Harris County that she had an opportunity to be elected to office, and frankly that situation remained unchanged until this Court decided Regester last term.
With the advent of Regester, and the effect of single-member districts in Dallas, Bexar, and Harris County now there has been a dramatic increase in both Black and Mexican-American representation in the Texas Legislature and as we see it, it solely is attributable to this Court's involvement in reapportionment litigation, and we would hate at this point to see a retreat very frankly.
The contrast with Whitcomb is just that I think which Justice White alluded to.
In Whitcomb the Court characterized a typical legislative race as a head-to-head race between two opposing parties.
In Marion County, Indiana if the Democrats won, typically the Ghetto would have adequate representation if I recall the language, that simply not the case in Texas.
Texas is a one party state which we have majority place system, all races are determined in the primary, and what it results in is a head-to-head race with the minority candidate pitted against an Anglo candidate and the result has been almost without exception, defeat to the minority candidate.
This Texas is peculiar in several regards and this is a special system, but the result has been clear, as the virtual exclusion for minority elections.
We have today what we think to be just simply the sequel to the Bexar and Dallas cases.
In some cases, it seems to me, in some of the counties, the evidence is stronger than it was with respect to Bexar or even in Dallas, that is with respect to some of the counties before the Court.
The record is at this point something like 14 print volumes.
The original seven volumes of the Regester case together with I think, additional six printed volumes today.
For example, we would suggest that the plight of the Blacks in most of these counties is significantly worse than it was for the Blacks in Dallas county, because at least in Dallas, there was sort of a white man's burden assumed that they would occasionally slate a black, put him on the ticket, have him elected.
In Jefferson County for example, that's never been the case, and it looks to me as if it never will be the case.
There the testimony is that politics in that county been dominated by “The arm of Texas AFL CIO” and that slating by Cope was tantamount to election.
The testimony --
Justice William H. Rehnquist: How many representatives are there in Jefferson County?
Mr. David R. Richards: How --
Justice William H. Rehnquist: How many representative in Jefferson County?
Mr. David R. Richards: Three I am sorry.
Jefferson County at this stage is carved really into one three-member multimember district, a portion of the county is tacked on another single-member district and a portion of the county is tacked on to yet another single-member district.
We are concerned of course only --
Justice William H. Rehnquist: Is it one of the Beaumont and Port Arthur?
Mr. David R. Richards: That's Beaumont and Port Arthur or the towns, both Beaumont and Port Arthur are within the multimember district.
The record shows that when Blacks went to Cope leadership and said why can't you slate us, why can't you make us one of the recommended candidates, the leadership's response was we are afraid of rank and file pressures, hostility toward blacks if we put you on the ticket and endorse you, we might not be reelected to our offices.
That's pretty strong stuff, and that's exactly the situation that prevails today.
In McLennan county, where I grew up, the state's witness testified, not our witness, the state's witness testified that is still the people of McLennan County weren't prepared to vote for a Negro candidate.
They were still light years away from that sophistication.
Justice Potter Stewart: What areas of the McLennan County or which city?
Mr. David R. Richards: It is in central Texas on the Brazos river.
Justice Potter Stewart: Any town or city of --
Mr. David R. Richards: Waco is the county seat and occupied essentially the entire legislative district.
In Bexar County, and we heard, you heard Bexar County before there was evidence of reasonable access to -- reasonable success in some instance of Mexican-American candidates.
The success of Mexican-Americans candidates in the counties that we are looking at today El Paso, Nueces, and Lubbock is dramatically less than it was in Bexar County.
And unlike Bexar County, where there was no suggestion of racial campaign tactics ever being utilized, there is evidence that they regularly utilized and these are counties to defeat Mexican-American candidates.
Granted there maybe a First Amendment Right to utilize racial campaign tactics, but our concern is how does a multimember district operate on minority access and it's our view that this is a relevant consideration that this four, in fact four ordains lack of success by the minority candidate.
Although, we're dealing with six counties, and they are each different and each I suppose had a particularized appraisal by the Trial Court, there are some similarities.
At the time of trial, no black had ever been a nominee of the democratic primary for any office in any of those counties.
The one pattern that emerged in at least three of the places we looked at was a re-occurrence of a certain theme that is when minority candidates threaten success at the polls, the game was changed.
In Waco, the first time a black candidate ran for city counsel, at that point Waco had a ward system, that's actually a single-member district system.
A black candidate ran the next time around they changed the rules, went back to an at large election voted on by the entire electorate.
In Travis County also, the same pattern emerged.
The first city counsel candidate black, also the [Inaudible] ran to the city council and ran a good race.
What they do?
Change the rules, went from a plurality to a majority system the next time around.
First time, the Mexican-American candidates there seriously threatened the School Board elections.
They moved from a plurality to a majority system and what we are really saying I think in parts that this at large majority place system, links up in a very real way to deny access to minority candidates.
I think that's precisely what the court found the first time; that's what this Court found when it affirmed unanimously Regester and we think it's the same case again.
To the extent, at one stage, the dissent suggests that part of our burden is to prove that these districts were designed to disenfranchise minority candidates.
I take it that means that we must show an unlawful motive.
We do not think that's the proper equal protection test, but to the extent that, that's the test or to the extent that, that's our burden; the evidence is here just as it was before, that is, it's the same record, it's the same people acting, it's the same action of the Legislative Redistricting Board that created the districts that are now before the court, that were here before.
It seems to me at least that one thing comes through quite clearly, the Texas Supreme Court said in Mauzy versus Redistricting Board that the Legislative Redistricting Board in structuring these districts should consider carefully whether any multimember district might result in discrimination against minority candidates and yet the testimony is quite clear that the Legislative Redistricting Board totally ignored this question and indeed, one member of the Board characterized the appearance and testimony of the minority candidates with an effort there, the profane effort there and characterized it as being ignored entirely.
So I suppose one can assume that they intended the logical consequences of their act.
They did not undertake to consider the impact upon minorities and in so doing, it seems to us, supplied the necessary motive if in fact, it was a requirement.
I have one or two sides about how deeply embedded the state policy is with respect to multi-membered districts.
There is one oddity in this case to me, that is with respect to McLennan County, one of the smallest ones involved.
When the legislature redistricted McLennan County in 1971, it created two single-member districts in McLennan County.
When the Legislative Redistricting Board came about this task, they reconstituted that county into a multi-membered district.
Justice William H. Rehnquist: hat had been the history of McLennan before 1971, as to number of districts?
Mr. David R. Richards: It had been a multimember district before 1970.
Well at least in terms of when its population justified it and it had been a multimember district for some time.
Justice Potter Stewart: -- two, wouldn't it?
Mr. David R. Richards: With two at one point, yes.
Years ago, that was larger and had four representatives to its -- but anyway, when the legislature came to deal with it in 1970 after the census, for the first time, the legislature cut it into two single-member districts, and then it was the Legislative Redistricting Board after they were impelled at that they reconstituted the multimember district.
And this is what the same see-saw comes to because the legislature did not create single-member districts in Harris County, it created three districts in which representatives ran I think 6 in one, 7 in another, and it was the Legislative Redistricting Board that constituted single-member districts there.
So from the top and the bottom of the spectrum, you have sort of wavering policies review it.
Finally, it seems to us that one question that is in the case that I want to speak a moment to and that's the matter of remedy.
The state argues and I guess by virtue of the state that was granted here; there must be maybe some concern because the court implemented its own plans or the plaintiff's plans for the single-member districts.
We think of the circumstances, it was entirely proper.
As the record reflects, the Trial Court ordered the state, didn't order the state, requested the state to produce any proposed redistricting plans that it had by January 18, 1974.
The state produced no plans by that date.
The court then scheduled a hearing for January 28, at which time the question of what remedy was going to be applied.
At that point, the state did appear and adopt certain plans, but with respect to the six counties that we are concerned with, I would like to point out that with respect to McLennan County and Travis County, and El Paso County, the state offered no plan in opposition to plan offered by the plaintiffs, in effect acquiesced in it.
In Nueces county, the state affect, adopted two plans, said either one was satisfactory; one of those plans being the plan proffered by the plaintiffs.
Only in Lubbock and Jefferson County that the state offered plans in opposition to those proposed by the plaintiffs.
And in both instances the state plan was less faithful to the state policy than the plaintiff's plans because in each instance, the state plan would have required redrawing adjoining single-member districts.
Thus, in Jefferson County, they would have restructured not only the multimember district, but altered single-member districts that were abutting it on either side, which were not even in issue.
The same pattern emerged in Lubbock County where they sponsored the plan.
The state's plan would have required not only creating the single-member district, but alteration of adjoining single-member district.
So we would suggest to court, the trial court in adopting our proposals was more faithful to this Court's decision in Weiser versus White, that is because the plans we sponsored were faithful to the state policy, did not in fact intrude upon the adjoining districts and for that reason clearly no abuse of discretion.
Further, the plan sponsored by the state in Jefferson County, assuming that the concern of the case was to enfranchise or disenfranchise Negro minority of that city or that district, the state's plan would have drawn the Negro population of Jefferson County into four nice slices, 20% each of the four districts which would have it seems to me would have worsened the situation where now they constitute 30% of the multimember district under the state's proposal they have been reduced down to roughly 20 to 25% in each of the four proposed single-member districts.
We do not -- it's our view if the record as I say is exactly the record that we presented to this Court in the first round.
All of the same evidence is here, we have gone back and done exactly what we did the first time around, developed evidence on a local basis of how the multimember district operated in fact in those counties upon the minority of those counties.
And two counties where the proof simply didn't sustain itself one in Hidalgo, we all conceded that their multimember district there could not be demonstrated to deprive the minority of that county of access.
The same was true in Galveston County where again a particularized local appraisal led everyone to the conclusion that the multimember district there did not in fact -- did not access.
In Galveston County, the trial court -- I am sorry.
Justice Lewis F. Powell: You were speaking about evidence in these counties.
Would you take a look at El Paso, and tell me with 60% of the voters --?
Mr. David R. Richards: I can tell you some of it.
Yes, Your Honor.
Justice Lewis F. Powell: Minority citizens, it can be said that the members of the legislature from El Paso were not responsive to the needs of 60% of the people to whom they represent?
Mr. David R. Richards: First let me point -- I mean, at least point out first, the fact that there was perhaps a numerical majority was also the argument made by the state with respect to Bexar County in the initial case.
The fact is however that in El Paso County whereas there was a numerical majority, there was 38% of the registered voters were Mexican-American and participation figures were even lower than that, and I think what the Court was saying in El Paso County was the same thing the Court said with respect to Bexar County.
By taking together with historical factors including the poll tax and all the things that have served to diminish Mexican-American participation in Texas operated very frankly in El Paso County with a great deal more force than it did on Bexar county.
I don't like to get into numbers but the numbers frankly are that in as my good friend George Korbel said it was five, four and since re-construction there at least that five Mexican Americans elected to the legislature from Bexar county and El Paso only 4, and at the time the case was tried, not a single-member of the El Paso delegation legislature was Mexican-American and I think --
Justice Lewis F. Powell: What evidence is there that the members of the legislature were unresponsive to a majority of the population?
Mr. David R. Richards: Well --
Justice Lewis F. Powell: Is there evidence in the record?
Mr. David R. Richards: I would not argue as to the current delegation of the legislature.
I do not think that there is evidence that supported that particular finding.
There certainly was evidence and a finding that historically there had been unresponsiveness.
In fact one of the persons who testified was a former Senator there who testified that he opposed abolition of a poll tax which the trial court, I think, quite properly found to be evidence of one responsiveness in light of the history of the poll tax as it fell upon Mexican-Americans and Blacks in Texas.
My time is up.
Justice Byron R. White: Why shouldn't the district court pay attention to the actual current situation when it makes its judgment, if at the time it decides there are representatives of the minority being slated in and elected in a district, should the district court nevertheless say that historically this hasn't been so and therefore we're going to disestablish the multimember district?
Mr. David R. Richards: Well, excuse me, I think it should pay attention and I think it did pay attention, and I am saying to you that in the El Paso County for example, the time this case was tried, no Mexican-Americans were elected among the four-member delegation or five-member delegation, actually from El Paso County served the Texas legislature, and that was part of the facts of that case.
In Nueces County, when facts of that case --
Justice Byron R. White: It was at the time of the court's opinion, is that true?
Mr. David R. Richards: Yeah, that is true, I'm sorry, that is the fact, at the time of the court's opinion.
There only as I say four in history, in a county that constitutes a numerical majority and I don't mean to suggest that this is purely a numbers game, the testimony in El Paso County is from the former Democratic County Chairman that they were sufficient.
Justice Byron R. White: What between decision and appeal the facts of situation changes dramatically?
Mr. David R. Richards: Alright.
I don't know they have changed dramatically -- the facts --
Justice Byron R. White: Let's assume that they did, what would you suggest that appellate court should do?
Mr. David R. Richards: Well, I suppose the facts could change to moot the case, the facts could change so dramatically that it might require a reconsideration.
I would suggest that there has been no such dramatic change in Texas.
There is now Representative Paul Moreno has been elected from El Paso, so there now sits one Mexican-American in El Paso delegation.
And Bobby Webber (ph) lost again in Fort Worth, Al Price lost again in Jefferson County.
I mean, we can go either way.
The Black candidates that we were proving about, and they said, well, they just try again, it will be better, they tried it again and they lost.
So, I mean, it really cuts both ways.
We suggest that there has not been a significant change in the picture in Texas with the possible exception of Travis county, which is a very specialized breed of cat and there -- as Mrs. Levatino points out, there has been a change there more attributable I think to 18-year-old vote than to any diminishing of prejudice on part of the electorate.
Chief Justice Warren E. Burger: Very well Mr. Richards, Mr. Gladden?
Argument of Don Gladden
Mr. Don Gladden: Mr. Chief Justice and may it please the Court.
I will be discussing Tarrant County which the primary city in Tarrant County is Fort Worth, where adjacent immediately to the East of Dallas County, and I feel sort of that was good for Dallas County perhaps it's good for Tarrant County, and that we would like to participate and share their benefits of this Court's action relative to multimember districts.
Chief Justice Warren E. Burger: Before you get on to that, let me ask you this.
If a particular district, where 60% are representation of the minority or any other group consistently elects a non minority group, what inferences are to be drawn from that?
Mr. Don Gladden: If a 60% majority --
Chief Justice Warren E. Burger: Minority, consistently elects someone not in the minority group?
Mr. Don Gladden: I don't understand the quote, I'm sorry about the 60% minority, and minority --
Chief Justice Warren E. Burger: Suppose a district has 60% combined Mexican-Americans and Negroes.
Mr. Don Gladden: Oh, okay.
Chief Justice Warren E. Burger: But they consistently elect twice, what point has to be made in that?
Mr. Don Gladden: I don't think that situation exists in Texas unless it perhaps exists in Hidalgo County where there is a substantial Mexican-American in essence the majority and they elect both Whites and Mexican-Americans.
In Tarrant County, we've got a situation which unlike Mrs. Levatino suggested is not a small district.
It has a population of 675,000, some 60,000 more than the State of North Dakota what this Court considered in the Chapman case.
It has nine members that are all elected at large, it has 82% White or about 550,000.
It has 12% Black or about 80,000 and 6% Chicano or Mexican-American or about 40,000 in population.
No Blacks have ever been elected from Tarrant County to the Texas legislature.
Now I'd like to qualify the words Tarrant County in district 32, because actually I'm talking about district 32 here.
Prior to 1972, Tarrant County was a single-member district.
As of 1972, the Legislative Redistricting Board trimmed the excess population, from the rural areas of Tarrant County and put them in an adjoining district so as to reduce it to a nine-member district.
Justice Byron R. White: Are elections there, are they by party?
Mr. Don Gladden: No Your Honor--
Justice Byron R. White: The one party is the one party operation, but it's just that, that had races.
Mr. Don Gladden: We have a primary system in Texas.
A nomination in the Democratic party in Tarrant County is tantamount to election in Tarrant County.
There are no Republican -- just as Blacks and Chicano, there has never been a Republican elected in Tarrant County or in district 32.
Justice Byron R. White: How difficult is it to get on the primary ballot?
Mr. Don Gladden: It is not difficult at all to get on the primary ballot.
We have a $100 -- in fact, we used to have a $100 filing fee, I guess no filing fee now, thanks to this Court.
Justice Byron R. White: Only the signatures is required?
Mr. Don Gladden: No, you can just go in and sign up and get on the ballot, but we --
Justice Byron R. White: They can sign up for a place in the --?
Mr. Don Gladden: Yes you do have.
It is a place system.
Justice Byron R. White: You have to pick your opponent.
Mr. Don Gladden: This is a place system or your opponents picks you.
We have not only a place system in this again --
Justice Byron R. White: You're not going to get picked unless you're in?
Mr. Don Gladden: That's very true.
May I suggest to the Court, first of all an error in our brief, on page 46 we cited Whitcomb for the proposition that there were sub districts within Marion County.
I apologize, that is not true.
There are no sub districts in Tarrant County or in district 32 to require a person to live in any geographical area.
We do have a place of system, where you've got a pick place, one place, two place, three place, four place, five, so on through to nine.
The numbers of people who picked a particular place depends upon, first of all the confusion of the circumstances and the fellow that you want to run against.
Justice Byron R. White: You say that -- you must say that there's complete access to the ballot?
Mr. Don Gladden: Don't think that there is any question, but what Blacks in --
Justice Byron R. White: Slating is beside the point as far as access to the ballots is concerned?
Mr. Don Gladden: No, slating--
Justice Byron R. White: It may not be beside the points as to who wins?
Mr. Don Gladden: Slating is our concern, only on who wins not as to access of the ballot.
Justice Byron R. White: For complete access to the ballot.
Mr. Don Gladden: No question about--
Justice Byron R. White: The only thing is--
Mr. Don Gladden: -- any black, any Chicano has that --
Justice Byron R. White: So you say that it really is the function of the discriminatory voting that has kept Blacks off the --
Mr. Don Gladden: No, I do not Your Honor.
I say that it is an action of discriminating slating.
There are slating procedures --
Justice Byron R. White: I know, but then this all a Negro has to do is to go ahead and pay $100, he's on the ballot?
Mr. Don Gladden: Okay.
All but the evidence is that, there are slating, pre-primary slating procedures.
There is a downtown Seventh Street business group that slates county.
Justice Byron R. White: I know but Nevertheless, whatever the results are, they can't keep Negroes off the ballot?
Mr. Don Gladden: That's very true.
Justice Byron R. White: All they can do is organize the vote?
Mr. Don Gladden: All they can do is just keep them from wining, Your Honor.
Justice Byron R. White: That's what's what I mean.
So the discrimination is a function of the results of the poll?
Mr. Don Gladden: Yes, there is no question about that.
Justice Byron R. White: And you're suggesting that the consistent discrimination at the polls against Blacks who are running for office, a systematic discrimination is a sufficient reason for disestablishing a multimember district?
Mr. Don Gladden: Taking into consideration all the other fact --
Justice Byron R. White: It wasn't a issue at all in Whitcomb?
Mr. Don Gladden: No, it wasn't a issue on Whitcomb.
What I'm saying is, in this instance that slating processes go on that in order for a person that evidence in this case is, that in order for a person to have a meaningful opportunity to be elected, he must have been slated either by the labor, literal slate --
Justice Potter Stewart: Or by the Seventh Street.
Mr. Don Gladden: Or by the Seventh Street group.
Justice Byron R. White: Or in a number of all.
Mr. Don Gladden: Well, the evidence is that you don't get enough polls and the state witnesses when called upon to cite one example of one legislator who had been elected from Tarrant County that did not have either one, the business community on the one hand, or the labor literal community support slating on the other hand, and Representative Gabe Lewis (ph) thought and thought and thought and could not come up with one single member of the legislature in the history he'd been aware of politics.
So it doesn't get you elected to be slated by the labor people, it doesn't get you elected to the slated by the business group but you can't make it without being slated by one of them.
Justice Potter Stewart: It's a little bit like the situation would be in many states, you have to be supported by the Republicans or by the Democrats?
Mr. Don Gladden: This is very true, this is very true.
If I may go ahead and talk to --
Justice Potter Stewart: In order to realistically, have a chance of being elected?
Mr. Don Gladden: Yes, and again from a meaningful opportunity of getting your name on the ballot and meaningful opportunity to be endorsed and elected is the question.
No black has ever been elected and if I may --
Justice Byron R. White: Did a black ever slated?
Mr. Don Gladden: Blacks were slated twice.
Justice Byron R. White: Were they elected?
Mr. Don Gladden: No Your Honor.
First in 1968, first black ran in 1968.
In 1968, the White community voted 75% for the white candidate, 25% for the black, the black community voted 89% for the black candidate, and 11% for the white candidate, and he lost.
In 1972 --
Justice Byron R. White: So I guess the fellow from the other slate won?
Mr. Don Gladden: Yes, the fellow from the business slate won.
The black was slated by the liberal community.
Justice Byron R. White: What's interesting is that both slating organizations slated the blacks?
Mr. Don Gladden: It sure would, but the business slate has never slated a black.
In 1972, a black was slated by the labor group and he ran a very respectable race.
He spent $25,000 of his own money going only 1400 or so from the black community.
He was a prominent businessman.
He ran a no distinguishing type campaign and did not make disclosures that he was black and in the circumstance cited again in the Chapman case with a confused nine-place system, the community probably didn't know about Mr. Webber being black.
They knew about it, the fact that he was a prominent businessman, and he again picked up 25% of the white community, but lost 75% and about 85% of the black community.
Justice William H. Rehnquist: Is this any different than, if you have instead of seven-street group and the liberal labor, republican and democratic parties and your argument was, neither one is ever -- has ever chosen a Negro?
Mr. Don Gladden: In essence is, and it's also the same circumstance that Justice White raised about the fact that if you do slate a black, does he ever win?
And the answer is, is no, he never wins, he never has win and Bobby Webber, the black who ran in 1972 and came close, the state made issue at the trial of the case saying, well boy you know, Bobby just ran close to $25,000, don't you think he is going to win next time?
He dropped to 43% because it was suggested in the trial of this case that it was because, there --
Justice William H. Rehnquist: [Voice Overlap] my question.
Mr. Don Gladden: I'm sorry, would you repeat the question?
Justice William H. Rehnquist: Well, I won't repeat it at all, I'll ask you another one.
Is your argument basically that, in a system where you have open access to the ballot as you apparently do in Forth Worth, that if the two major political fractions don't nominate Negroes, a federal court has to step in and do something about the districting?
Mr. Don Gladden: I think that if in Forth Worth if in a multi member district, where you see a submergence of a minority interest that does not have access to the slating process, yes, I feel like --
Justice Byron R. White: So you wouldn't say the same thing, if the multimember district was just established and the same thing occurred in the single member districts.
You wouldn't say that?
You say it couldn't happen because of the so called minority -- would be a minority in similar district, but it could happen.
Mr. Don Gladden: I would say it was --
Justice Byron R. White: And the state can make it happen even in single member districts, and then you wouldn't have [Attempt to Laughter] much different plan at all?
Mr. Don Gladden: I would say, if it was done with intent --
Justice Byron R. White: I doubt if you could win?
Mr. Don Gladden: I would say if it was done with intent to dilute the minority strength that it would --
Justice Byron R. White: Intent to dilute like somebody intensely intense to beat a Negro at the vote of the polls, you're not going to upset that very easily?
Mr. Don Gladden: Well, this is very true, now then if I may -
Justice Lewis F. Powell: Mr. Gladden, before you leave this point --
Mr. Don Gladden: Yes Your Honor.
Justice Lewis F. Powell: Has a republican ever been slated in Fort Worth?
Mr. Don Gladden: Not to my knowledge by the business group or the labor group.
Justice Lewis F. Powell: But you said there has never been one elected --
Mr. Don Gladden: Well there never have been any serious challenges in house races.
There is presently in the Southern part of the county, a senatorial district that a republican presently holds, but there's never been one county -- legislate or county-wide.
Justice Lewis F. Powell: Are republicans a party to this litigation?
Mr. Don Gladden: Republicans were parties plaintiffs to this litigation.
Justice Lewis F. Powell: Are they still in the case?
Mr. Don Gladden: Yes, and they file plans and --
Justice Lewis F. Powell: Which counsel represents that?
Mr. Don Gladden: Mr. Jim George of Austin, Texas Your Honor, represented the Republican party claim.
Justice Lewis F. Powell: So you make the same claim of discrimination against Republicans that you are against minorities?
Mr. Don Gladden: The Republicans made that same claim, Your Honor.
Justice Lewis F. Powell: Are you making it?
Mr. Don Gladden: We carry it forward, yes.
Justice Lewis F. Powell: You are making it.
Mr. Don Gladden: I think so.
I think that political philosophy and economics also was an issue in our case of economic discrimination.
Thank you very much.
Chief Justice Warren E. Burger: Very well.
Do you have anything further, Mrs. Levatino?
Rebuttal of Elizabeth B. Levatino
Ms Elizabeth B. Levatino: Yes, Your Honor, I would like to state few very short and brief comments.
First of all, to answer the question which you posed to Mr. Gladden, Mr. Chief Justice, in other words what would be the comment on a minority -- minority inhabitant district which consistently elects a non-minority person.
I think that the inference from that must be that they like the people that they represent and those none minority members do represent their interest well.
I think with regard to Tarrant County, it must be remembered that blacks are part of these coalitions, that blacks have backed Anglo people who have also won, and that the Labor-Liberal coalition needs the black votes and searches for them.
This is not the case of the DCRG as you saw in Dallas County two years ago.
Mr. Richards mentioned that according to Barbara Jordan, the change in the Texas -- in the racial makeup of the Texas legislature was solely attributable to reapportionment.
I would like this Court or I would like to point out to this Court that we now have permanent voting registration in our state, which was not the case when this first round of Regester was first heard.
The voting rolls have risen from 3.8 million to 5.2 millions since 1971.
Additionally, the poll tax has now been gone since appropriately 1966.
The filing fees have been abolished basically are brought down very low either $150 or 1% of the people voting in the prior race not to exceed 5,000 signatures, the access to voting has certainly improved dramatically.
We have roving deputy registrars for voting.
You can register to vote by mail, and your registration is automatically renewed if you vote once every three years.
I submit that these are some of the reasons that there also has been a dramatic change in Texas.
Additionally, the statement was made that in Jefferson County COPE the political arm of the AFL-CIO never endorsed a minority.
I would submit that the record reflects that Mr. Price was endorsed as an acceptable candidate in 1972.
He then received 48% of the vote.
Also, an endorsement by COPE is not tantamount to election.
As the record reflects, both representatives, Powers (ph) and Doyle who were in that delegation at that time of the trial of this case were elected without that endorsement.
With regard to McLennan and Travis County going from Ward, City Council politics to the at large election, I would like to point out that those at large elections have resulted in two blacks being elected to the McLennan City Council and one black being elected twice to the Austin, which is the major city in Travis Council -- in Travis County.
Again, I do not want to get into plans.
In the various presentation of the plans, only to say that while the state never acquiesced by not presenting plans we maintain throughout the trial that the court, if it found any districts unconstitutional, should allow the legislature to reapportion.
It had never been given that opportunity under court order.
Additionally, with regard to the plan presented in Jefferson County as was stated here earlier, Jefferson County is composed of Beaumont and Port Arthur.
The plan which was submitted as agreed to by the members of the delegation from Jefferson County would have made Beaumont one district, the mid county area one district, and Port Arthur one district.
However, admittedly, splitting up the black votes, however plaintiff's plan started at one end of Beaumont, picking up as many blacks as they could, coming all the way through the mid county areas and down into Port Arthur, thereby, admittedly maximizing the minority strength in that district.
I submit that the legislative intent is reflected in the plans we did submit, was that of the members of the delegations, and we sought to do no more while maintaining our position that the legislature should have been given the right to redistrict if necessary.
Again, I submit that the record in this case is insufficient for a Federal Court to wipe out the entire state policy of multimember districts based on the evidence, and based on the factors utilized by the Federal Court below.
Chief Justice Warren E. Burger: Thank you Levatino, thank you gentlemen.
The case is submitted.