BEER v. UNITED STATES

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Argument of James R. Stoner

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1869, Beer against the United States and others.

Mr. Stoner, I think you may proceed whenever you're ready.

Mr. James R. Stoner: Mr. Chief Justice, members of the Court, may it please the Court.

This case comes to the Court as an appeal from the United States District Court for the District of Columbia from a decision by a three-judge court pursuant to the Voting Rights Act of Voting Rights Act of 1965.

It deals with the City of New Orleans.

The City of New Orleans in 1954 adopted a reorganization of its form of Government and adopted a mayor-council form of Government whereby the mayor of the city assumes the executive functions and a seven-man, seven-person council assumes the legislative functions of the city, the governing of the city.

The plan provides for the two members of the council to be elected at large from the entire city and five members to be elected from specific geographic areas of the city.

Now, the city charter requires that after each federal decennial census, the council of the city has the obligation to redistrict the five geographic areas of the city so that each area in each district will be as nearly as possible consisting of an equal number of voters.

The city charter as I said makes this mandatory after each decennial census.

This case comes to the Court to be adjudicated following the 1970 decennial census in a plan that was adopted by the city council.

But a little bit of history might be appropriate in considering the posture of a case.

First, following the 1970 census, the city council had the obligation to redistrict the five geographical areas.

They undertook to do this by the adoption of a plan, Plan I, referred to in the briefs in the record.

Now this plan was submitted to the Attorney General pursuant to the Voting Rights Act of 1965 which creates a system whereby a changed plan can be made operative in the event that the Attorney General does not enter an objection.

In this case, while the Attorney General of the United States was considering the plan, there was talk and movement in the city for a procedure whereby the city council, the City of New Orleans could be enlarged and indeed during the time that the Attorney General is considering the first plan, the city council did in fact adopt an ordinance increasing the size of the city council from seven members to 11 members.

This 11-member proposal at a member council consisted of two at large and nine geographic.

This proposal was submitted to the electorate for the City of New Orleans and was defeated in the citywide referendum.

The city council then adopted a plan whereby the size of the city council would be increased from seven members to nine members with two at large and seven from specific geographic districts.

This again was submitted to the electorate and upon the referendum, the proposal was defeated.

Now, following this, the Attorney General of the United States interposed an objection to Plan I.

Now, where does that lead the city council of New Orleans?

It leads the city council of New Orleans with the obligation to redistrict itself for the five geographic districts on the basis of a five geographic district council and two at large.

It did so.

It adopted what has been referred to in the briefs as Plan II and this plan was submitted to the Attorney General of the United States.

The Attorney General interposed an objection and upon interposing an objection, the interpose -- imposition of the Attorney General's objection, the city brought an action pursuant to the Voting Rights Act of 1965 in the United States District Court for the District of Columbia asking for a declaratory judgment and asking the three-judge court to declare that the plan as adopted that is Plan II be made operative and be held to be in compliance with the Voting Rights Act of 1965.

Justice Potter Stewart: The city could have done the same thing earlier after the expression by the Attorney General of disapproval Plan I.

Mr. James R. Stoner: It could have.

It could have Your Honor.

The machinery in the statute allows either an action for a declaratory judgment or a submission to the Attorney General, yes it could.

Justice Potter Stewart: Is there any indication in the record why it didn't go to Court and seek approval?

Mr. James R. Stoner: There is no --

Justice Potter Stewart: Right after the Attorney General actually formulated a plan to submit it back to the Attorney General.

Mr. James R. Stoner: That right.

Justice Potter Stewart: He disapproved that and the city went to court and that's the case we now have.

Mr. James R. Stoner: That is right, Your Honor.

That is right, Your Honor.

Now, the District Court, the three-judge District Court held that Plan II was in violation of the Voting Rights Act of 1965 and it is that that we disagree with.

Now, let's look at what this case is and maybe the best way to attack what the case is, is to ask what it is not.

This case is not a case whereby a city or a government is expanding its boundaries, annexing area as prior cases in this Court.

It is not that kind of a case nor is it a case where the city is changing from at large district to single districts or from single districts to at large districts.

This is merely a case where the city, the city council is performing its obligation to redistrict itself pursuant to the mandate in the city charter which as I stated was adopted in 1954, became effective in 1954.

So the case before the Court is a redistricting of the five-geographic district.

Now, the court below held that the two at-large seats had to be considered in the consideration of the five-geographic district and its application under the Voting Rights Act of 1965.

We submit and most vehemently that that is not at issue and that this Court should overrule the District Court on that point.

And for reason we state as follows.

The Voting Rights Act of 1965 applies to changes that are made in a voting system.

Now, this Court has held that in addition restrictions on the individual's right to vote, it also applies to cases in which a change in boundaries etcetera and we don't dispute with that issue.

We do however submit that the form of government enacted by the city council in its charter, in its home rule charter of May 1, 1954 was a dual system.

It was a system that provided for the election of two members of its council from the entire city at large and it was a system that required the election of five additional members of its city council from geographic districts of equal population -- of equal population.

Now, it might be helpful for the Court to look at a map of the city.

I have here which is -- incidentally in the appendix at page 625, 620, a colored map of the City of New Orleans and interposed on that colored map is the five districts as composed in Plan II which is the plan before the Court.

The red portion of this map represents voters of the black race.

The white, I'm sorry, the green dots represent voters of the white race, so that we see upon an examination of this map that indeed the white and the black voters of the city are scattered throughout many sections of the city.

Now, in looking at this, I would also like to call the Court's attention to the area in which the number C is located.

This is the only part of the City of New Orleans that is across the Mississippi River from the other part of the city.

In other words, predominantly the geographic, the large predominant part is the one side of the city but there is a small sliver on the other side of the city.

This section across the river is called Algiers and the record shows that there are great differences of opinion between the people of Algiers and the people of the city as to the necessity of another bridge across the Mississippi River and this is an important political issue in the City of New Orleans not only in the Algiers section but also in the main section of the section of the city itself because voters in one section of the city don't want the bridge to be destroying parts of their city for the abutment and the piers of the bridge etcetera.

Now, this case involves several things.

It involves people, it involves geography and it involves voters, of necessity the city must be divided geographically in order to meet the mandate of the city charter of creating the five geographic districts.

Mr. James R. Stoner: I refer to page 620 of the record which shows the geographic redistricting of the city as it was made in 1961 following the 1960 census and as it in fact exists at the present time because of the inoperativeness of Plan II and you'll note there that the Algiers section of the city is included in District A and you also note that the other part of --

Justice Potter Stewart: That's not 620.

Mr. James R. Stoner: 621.

Justice Potter Stewart: 621.

Mr. James R. Stoner: 621. I'm sorry, Your Honor.

Justice William J. Brennan: At 1961, you did this.

Mr. James R. Stoner: Yes, Your Honor.

Justice Potter Stewart: What it is now are facts that are still on effect because of --

Mr. James R. Stoner: That's right because of the interposing, -- because the Attorney General interposed an objection and because the Court has failed to render a declaratory judgment.

The new plan cannot go into effect.

Justice William J. Brennan: And is it that those two parts, aren't they elect one councilman, is that it?

Mr. James R. Stoner: Yes, Mr. Justice, they do.

They are -- each one of the district said is A, B, C, D, and E elect one member of the city council.

Now, as I stated, two additional members of the city council are elected at large.

In other words, there is a dual system the at large system and the five geographic.

Now, this apportionment of the city is founded in reason and founded in good reason.

The two at large members of the city, city council have the obligation of representing of all of the citizens of the City of New Orleans.

Each geographic district is represented by one person on the council and presumably that person represents the peculiar interest of that geographic area of the city.

And very important factor in this case is the Mississippi River and the economy of the city of New Orleans as it is affected by the Mississippi River.

The Mississippi River is well-known as the access to the Gulf of Mexico and it is a large and important shipping center of the United States and I guess invade the world.

Now, there's testimony in this case and I've referred to the testimony of a Councilman Morrow and I believe that Councilman Ciaccio (ph) also testified concerning this and that is that in their mind, they felt that it was important that each one of these five geographic areas should have some of the river frontage as part of their geographic area because of the tremendous importance of the river and shipping to the economy and to the life of the city and the people of New Orleans.

Plan II, as adopted by the city council and the plan which is before the Court, is also represented on page 624 of the record comparing the existed plan which is on page 621 and Plan II which is a plan before the Court on page 624.

We noticed that in the redistricting plan, the part across the river in Algiers in A has been transferred from Section A or from District A to District C.

This makes the entire District C contiguous on both sides of the river.

It also enlarges, geographic Section A and geographic Section B.

Now, at the time the plan was being adopted and considered by the city council, the NAACP in the City of New Orleans also submitted a plan of redistricting of the city.

This appears in page 645 of the record and I might submit that the plan you will notice in many respects is very similar particularly with respect to District A and District B.

It is changed then that the Algiers section in the NAACP plan is included in District D whereas the plan adopted by the city council has the Algiers section included in District C.

You'll also note from the NAACP plan that District E has no geographic frontage on the Mississippi River.

Another plan we submit --

Justice Thurgood Marshall: That 1, 2, 3, 4 are on Lake Pontchartrain, what's you're reading with that?

Mr. James R. Stoner: Your Honor, the district lines which have been followed in redistricting here have followed the traditional north south lines in the City of New Orleans.

In other words the -- when the wards of the city were established, I believe it was in 1912.

The wards were drawn on a north-south line and the districts, indeed the district that is the plan that is presently operative does operate on a north-south line and this plan operates on a north-south line.

Justice Thurgood Marshall: There's no significance of the Lake Pontchartrain (Inaudible)?

Mr. James R. Stoner: Not nearly as important as in Mississippi River.

Justice Potter Stewart: Except the matter here though that all the incumbent councilmen were, isn't it?

Mr. James R. Stoner: That is true, that is true Your Honor and I believe there is testimony in the record that many members of the council felt it was important that a councilman for one particular district represent also in addition to river frontage, that he also represent diverse interest.

In other words, the testimony in the council and in the record that some of the councilmen felt that it was important that a councilman be answerable not only to one economic interest or one economic group or one social group but rather that it be answerable to all and hence the river frontage being included and hence some of the higher income areas being included in the various districts.

Justice Potter Stewart: In Plan II which I understand it is on page 624 and that's the plan before us, isn't it?

Mr. James R. Stoner: That is right, Your Honor.

Justice Potter Stewart: Of the five districts four of those also are on the Lake Pontchartrain, don't they?

Mr. James R. Stoner: That is right, Your Honor.

Justice Potter Stewart: All but B?

Mr. James R. Stoner: All but B.

Yes, now, of course the peculiar curve of the Mississippi if you don't -- there is a peculiar curve in Mississippi there which would appear that there has to be a compact district and it's represented by a district B.

Justice Potter Stewart: And under Plan II the least of these districts A, B, C, D and E as you suggested just a moment ago, take in a pretty broad spectrum of economic and social groups?

Mr. James R. Stoner: They do Your Honor.

Justice Potter Stewart: Each one of them.

Mr. James R. Stoner: I believe the record reflects that.

It does but the possible exception of B which is a predominantly black populated section.

Now --

Justice Potter Stewart: And a downtown section.

Mr. James R. Stoner: That's right and part of a downtown section.

But it also contains a great deal of the river frontage and the business and the interests that are represented by river front property and people of who are located all over the river front.

Now, Plan II, we submitted to the lower court and we are before this Court and the lower court and we are before this Court asking the Court to reverse the lower court because we believe the lower court has made some grievous errors in its decision.

Number one, we believe that the inclusion of the at large districts in the consideration of the five geographic areas which are completely wrong and the reason we say that is because the city charter has a dual system of electing its council members.

It has a system of electing two at large and it has a system of electing five and we submit that the Voting Rights Act of 1965 says that the Act applies only to those changes that are made after November 1, 1964.

Now, the change in the at large system has not been made by the Plan II.

It has left the city charter as it was and for good reason.

The two at large councilmen for instance perform other functions in the city government in addition to being members of the city council.

For instance, one of them is the chairman of the city council and that rotates between the two at large every four months.

In addition to that, the at large members serve under water and sewer board and otherwise have other functions as described in our brief.

Justice William H. Rehnquist: You say then that the District Court didn't have authority to review the provision as to at large council because that wasn't the change that was introduced after the effective date of the Voting Rights Act?

Mr. James R. Stoner: Exactly, Your Honor.

Exactly.

Exactly, that is our position.

Justice Potter Stewart: I understand that your adversary is here today disagree with you about that --

Mr. James R. Stoner: I do, Your Honor.

Justice Potter Stewart: -- in their briefs.

Mr. James R. Stoner: Pardon.

I do, Your Honor.

Justice Potter Stewart: Very well.

Here from I might touch in their briefs, they didn't seem to differ much about that aspect of your case.

Justice William H. Rehnquist: Mr.Stoner.

Mr. James R. Stoner: Yes sir.

Justice William H. Rehnquist: What would have happened had the City of New Orleans done nothing after the 1970 census.

I suppose someone could have brought an action in the District Court under Reynolds against Simms or those kinds of cases to compel them to redistrict.

Mr. James R. Stoner: I think you're correct.

Justice Potter Stewart: Under New Orleans charter I suppose.

Mr. James R. Stoner: It's mandatory under the city charter.

Justice Potter Stewart: It's mandatory under your charter.

Mr. James R. Stoner: I assume that a mandamus action could be brought by any citizen to compel a city council to do its job, namely, to redistrict.

Justice Potter Stewart: Right.

Justice William H. Rehnquist: And under our case of Connor against Johnson, the Voting Rights Act doesn't apply to a redistricting that's done under the edges of a federal court decree.

Mr. James R. Stoner: I believe that's correct, Your Honor.

So we submit as stated that the two at large seats, the Court erred completely in considering the two at large seats.

Now, the Court also erred previously, we believe in the burden of proof statement which the Court has made.

The Voting Rights Act allows a change plan to become effective upon the filing of a declaratory action in a District Court and a finding that the plan compliance with the Voting Rights Act of 1965.

The lower court in this case has said that the moving party, that is in this case, the city council of the City of New Orleans must prove that the plan which they are submitting is the only feasible plan.

Now, we submit that that does not comply with the traditional declaratory judgment procedure at all.

Congress established in the Act a declaratory judgment procedure.

Now, what is a declaratory judgment procedure?

It's a procedure whereby parties come before a Court and asked for an adjudication of their interest so that they may proceed in the normal course of events and the normal course of life.

In that kind of an action, declaratory judgment, it has always been held that the burden of proof is by a preponderance of the evidence.

Now, the lower court has said that in this case, the moving party must prove that the plan is the only and I emphasize only feasible plan.

We submit that that just is not proper burden of proof.

Indeed, we may say that probably no plan could be devised which is the only plan because we are dealing here with people, we are dealing with geography.

And without belaboring the point further, we submit that the burden of proof is entirely wrong.

Justice Harry A. Blackmun: But I take it, you do concede, you have a burden of proof.

Mr. James R. Stoner: We have a burden of proving and we submit Your Honor that we believe that the burden we have is to show that the plan is a feasible plan and is based on a rational basis, a rational basis.

We believe that our burden is to show that the plan is a plan founded in reason and in consideration of the various factors which are at play in any one area.

Justice Byron R. White: Do you think that you necessarily win your declaratory judgment action if it were found that under the Constitution, the plan was acceptable or do you to put it in another way, do you think the statute had something beyond what the Constitution would require in terms of what you have to prove when you are making a change covered by Section 5?

Mr. James R. Stoner: Well, I believe that the statute would really emphasize that our obligations are under the Fifteenth Amendment and I believe that if we meet the constitutional test that we have established, we've carried our burden of proof.

Justice Byron R. White: But this is a voting.

I take it, you say this is a voting case, Fifteenth Amendment voting case rather than a -- rather than an equal protection case?

Mr. James R. Stoner: Both apply in their subtle differences I believe in cases.

The lower court applied a compelling state interest --

Justice Byron R. White: But reinforcement cases are proceeded on the basis that their equal protection considerations were solved them, isn't that right?

Mr. James R. Stoner: I believe that is correct, Your Honor.

Justice Byron R. White: So are we talking here about a constitutional standard under Section 5 or something that's imposed by Section 5?

It says that -- it speaks about depriving people of a vote by a reason of race or color, doesn't it?

Mr. James R. Stoner: Yes, it says that no statute or no procedure, voting procedure shall be enacted which deprives anyone to or breaches the right to vote on account of a race or color.

Yes, Your Honor.

The lower court has --

Justice William H. Rehnquist: Let me -- let me ask you a little further, but the statute also prohibits you from adopting a procedure, you have to show the procedure doesn't have the purpose and we'll not have the effect of denying or abridging the right up on that stricter than the constitutional standard, you're bound to come up with a statutory standard, I take it.

Mr. James R. Stoner: That's right, Your Honor.

But we would submit that that is not the necessarily stricter than the constitutional standard.

Justice William J. Brennan: And yet it's that double purpose the burden of which you are willing to assume.

Mr. James R. Stoner: You mean a purpose and effect?

Justice William J. Brennan: To assume the burden of proof, yes, purpose and effect.

Mr. James R. Stoner: Yes.(Voice Overlap)

We -- the lower court in this case found that the plan I submitted had the effect of denying and bridging and therefore he said -- pardon?

Justice William J. Brennan: And for that reason did not address the question of purpose.

Mr. James R. Stoner: That's right, it did not.

Now, we submit that both are applicable in the case that the statute says the purpose and effect.

Justice William J. Brennan: If it has the effect, it's not necessary that the act is violative then, is it not?

If the plan has the effect without regard to whether it has a purpose.

Mr. James R. Stoner: Well, we would submit that the statute says the purpose and effect that both must be benefits.

Justice William J. Brennan: So you think that the three-judge court was wrong in addressing purpose on the law.

Mr. James R. Stoner: Yes, Your Honor.

Justice William J. Brennan: Yes, that's it.

Justice Harry A. Blackmun: Now, going back to the constitutional approach, is the same standard applicable under the Fifteenth Amendment in your view as it is under the Fourteenth?

Mr. James R. Stoner: The fourteenth, I believe would apply more to a restriction on the individual right to cast a vote.

The fifteenth is somewhat broader I would believe.

Justice Harry A. Blackmun: And this is a Fifteenth Amendment case?

Mr. James R. Stoner: Well, it is Your Honor but we also submit that the Court misapplied the compelling state interest doctrine.

What the lower court did here was to say that unless the black population is given this maximal voting strength.

It has to be -- the plan has to be denied unless the Court, unless the moving party shows a compelling state interest.

Now, we submit that that is an improper test to be applied in this case because we say the compelling state interest test has been traditionally applied by the Court in cases in which there has been a restriction on the individual right to cast a vote.

And I mean by that case is such as literacy test and those kind of cases.

Now, we say that that test is an improper test in a Voting Rights Act of 1965.

I see my time is up.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Stoner.

Mr. Wallace.

Argument of Lawrence G. Wallace

Mr. Lawrence G. Wallace: Mr. Chief Justice and may it please the Court.

In May 1973, in Georgia against the United States, this Court agreed with our longstanding interpretation that the Voting Rights Act does apply to reapportionments and redistrictings and this is the first case in this Court which raises the question of what the Act means with respect to these redistrictings.

Justice William H. Rehnquist: You mean the reapportionments and redistrictings are undertaken at the initiative of the legislative body, don't you?

Mr. Lawrence G. Wallace: That is correct in so far as the Act's procedures are concerned.

I don't understand Connor against Johnson to hold that a court in adopting a redistricting plan in a jurisdiction covered by the Act should not take the substantive standards of the Act into account.

I thought it holds that the Act's other procedures are not to be applied in such a situation.

Justice William H. Rehnquist: But what it said was a decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act which certainly contains substantive standards as well as procedural, doesn't it?

Mr. Lawrence G. Wallace: I thought it was in the context of whether it has to be approved by the Attorney General or the District Court for the District of Columbia and I don't think the Court has addressed the question of the propriety of a District Court taking the substantive standards of the Act into account and I think there's a strong argument to be made that Congress meant those substantive standards to have effect in the jurisdictions covered by whatever procedure may be the appropriate one in the particular case, Your Honor.

Justice Byron R. White: So you, using the same -- operating in the statement that is subject Section 5, the plan like (Inaudible) state government?

Mr. Lawrence G. Wallace: Well, I think there's a strong argument and it was the position we took in the hearings that the Act goes beyond.

We haven't taken a position on that in this case but we did take that position before a Congress when it reenacted the statute in 1970 that Section 5 imposes prophylactic substantive requirements beyond just the shifting of the burden of proof which is a major factor in your substantive result in addition and we stand by that in our administration of the Act.

It was not so clear that the Fifteenth Amendment without this Act would prohibit a change in voting procedures merely because it had the effect of abridging the right to vote on account of race.

It depends on how you want to interprete the right to vote on count of race.

But the Act has been interpreted to mean dilution.

Justice Byron R. White: That was the form it was written.

Mr. Lawrence G. Wallace: Well, as I just said, the Act has been interpreted to mean dilution and this was the language used by this Court in both Perkins against Matthews and in the Georgia case.

Well, this is what both we and the District Court had to determine in looking at the plans that were submitted.

First, the so-called Plan I and then Plan II which was --

Justice Byron R. White: Well, isn't that we cannot solve thing as compared to what it used to be or is it compared to what it could be or what?

Mr. Lawrence G. Wallace: Well, in reviewing these plans and the bulk of them have been reviewed administratively rather than in the courts, we start off with the premise that the question before us is not a comparison of the present abridgement with the preexisting abridgement but that the Act was enacted to enforce the Fifteenth Amendment and that can be accomplished only by looking at how the new procedure will operate and see what effect it will have on minority voting strength and whether it denies on account of race or color and equal opportunity for meaningful participation in the electoral process for standards that were quite painstakingly developed by this Court in Whitcomb and White against Regester.

Justice Byron R. White: No Negroes, except the charged Negroes, were denied the opportunity to register to vote?

Mr. Lawrence G. Wallace: Not at all.

Justice Byron R. White: And it purport it had a purpose or effect to denying anybody the right to vote.

Mr. Lawrence G. Wallace: There would be no point in having the Act apply to reapportionments if that were the only question because all the reapportionments under the Reynolds against Simms in its progeny have to result in fairly equal districts in which everyone will have an equal ballot from that standpoint.

The question is what practical effect will that have, what possibilities of racial gerrymandering is the Act designed to protect against and --

Justice Byron R. White: And so how was the dilution in that case?

Mr. Lawrence G. Wallace: In this case, it was diluted by looking at all the circumstances of the apportionment that was involved here and there's no short answer to these questions on our experience because in addition to the premise that you look at the whole effect, we also started off with the premise that the Act does not choose between different theories of political representation.

There's nothing per se invalid under the Act with having two at large and five district councilmen.

Justice Byron R. White: The only, let's assume -- let's assume there's only fact changed in a new plan namely that the districts have withdrawn so that we'll only have three representatives, would you still have to go through along ignoring about it or would that satisfy --

Mr. Lawrence G. Wallace: Well, the way we have been administering the Act is we not only look at the face of the submission that we notify interested persons who have registered with us of what has been submitted.

This includes civil rights organizations and individuals in the community at issue who have registered with us and we see what they have to say about what the effect will be and then we often ask the submitting jurisdiction what they have to say in response.

It isn't easy to ascertain whether within the terms of the statute, a new procedure will have the effect of abridging minority voting strength or minority voting rights just on the face of the submission.

Justice William H. Rehnquist: Was that dilution test comparative or not?

I mean, are you comparing with a maximum minority leverage that might be gone from a particular plan or are you comparing it with what is in existence now?

Mr. Lawrence G. Wallace: We don't -- neither one, Your Honor and as I understand it the Court didn't use either of those criteria but used something in between comparison with the percentage of that group in the community as a whole as the starting point and those figures are given in our brief in a little chart on page 7.

That's where we started off looking at this district and the District Court did the same thing and it showed that in the 1970 census, 45% of this community was black.

The percentage of registered voters that were black was 34.5%, a little over one-third and the black population of voting age would fall somewhere in between and then we looked at the districts that were drawn in the context of what they were drawn up for which was to apportion five district seats of a seven-member council and the Court found and we think that this was well supported by the evidence that the two at large members of that council because of a background, a pattern of racial bloc voting and voting procedures that were in effect including a majority vote requirement numbered post anti-single shot provisions with the racial polarization and bloc voting that those two at large seats would be controlled by a white bloc vote.

Justice William H. Rehnquist: But they were literally not changed.

Mr. Lawrence G. Wallace: We never challenged them, we're just -- we're saying you assess the five districts in the context of what the city was being districted for and that was five representatives on a seven-member council, two members of which are controlled by the white voters of the outset, so you look at the other five and see whether the districting has denied the minority of fair opportunity for meaningful representation on that council.

Justice William H. Rehnquist: But the District Court went ahead and more or less set aside not only the new seats but the seats at large and they literally are not within the language of the Act.

Mr. Lawrence G. Wallace: The District Court said that the at large seats are themselves invalid but it didn't have to say that.

The question before the District Court was whether to issue a declaratory judgment approving the new plan and it already given several quite independently sufficient reasons why the declaratory judgment should be denied so that that was an addendum to the opinion which was not something we were contending for and was unnecessary to the result.

Justice Potter Stewart: And you do not support it here, do you?

Mr. Lawrence G. Wallace: No, we're asking that the judgment be affirmed, that the District Court was right in denying that the declaratory judgment but we have found no reason in anything that's been brought to our attention in this case to oppose the two at large seats and we have some doubt about whether --

Justice Potter Stewart: Well, as my brother Rehnquist says it's not -- they're not even covered by the statute.

Mr. Lawrence G. Wallace: We have some doubt about that.

The intervenors contend that it is.

We think, we never have challenged it in this case and if there's no need to reach that question in this case --

Justice Potter Stewart: Although the District Court did in its opinion reach it.

Mr. Lawrence G. Wallace: It did and --

Justice Potter Stewart: And to the extent it did, it's a component, it's one of the foundations of its opinion, isn't it?

Mr. Lawrence G. Wallace: Well, it's an additional ground given for denying the declaratory judgment but I think it's quite clear that the other grounds who were sufficient then solves in the view of the District Court and we urge that there were other grounds for denying the declaratory judgment.

Justice Byron R. White: But don't -- wouldn't you think that reading its opinion, considering the judge's, do you take if you're going to redistrict a city like New Orleans or a state and you know you're going to have to get by Mr. Wallace and his colleagues in the Attorney General's office that you really are to take race into account in drawing your district lines?

Mr. Lawrence G. Wallace: Well, there's no way to draw them without taking race into account to the --

Justice Byron R. White: Well, it's still easy, very easily draw them without taking race into account.

The only trouble is that happens to end up that like in this case, it will be only the have the purpose and effect of denying the right to vote.

Now, how can you get around this judgment without saying affirmatively take race into account in drawing your district lines.

Mr. Lawrence G. Wallace: Well, I --

Justice Byron R. White: You would say you should?

Mr. Lawrence G. Wallace: Affirmatively, we don't say affirmatively take it into account.

Obviously, if race is now taken into account at all, you can be assured that your new procedure will not have the purpose of abridging voting rights on account of race but how will you know whether it has the affect unless you look to see what effect it will have.

Justice Byron R. White: Well, I agree, afterwards, you're going to take race into account but when you're drawing your districts, you really should, I take it that the Attorney General thinks, gerrymander on the basis of race to ensure that the minority group in the community has a fair percentage and a fair representation --

Mr. Lawrence G. Wallace: A fair opportunity, a fair opportunity to participate meaningfully.

It doesn't mean racial gerrymandering.

We don't say that the Act adopted --

Justice Byron R. White: Well, that's just a bad word then to take race into account and draw your districts so that the racial minority will have a fair representation on --

Mr. Lawrence G. Wallace: That depends on the political circumstances in the community.

We don't say that the --

Justice Byron R. White: But why are you backing away from this?

Mr. Lawrence G. Wallace: Because we don't think --

Justice Byron R. White: You don't think that is or you didn't take that into account?

Mr. Lawrence G. Wallace: We do say it has to be taken into account, yes, but we don't say you have to gerrymander --

Justice Byron R. White: You don't?

Mr. Lawrence G. Wallace: No, no, no because the Act doesn't choose between theories of representation in our view.

The Act doesn't choose between theories that --

Justice Byron R. White: If you don't gerrymander, you end up with a pattern like as in this case, you're going to be in trouble with the Attorney General.

Mr. Lawrence G. Wallace: Oh yes because in this case, there is a prevalent practice of racial bloc voting along with findings that the city council members are not responsive to the needs of the black community.

Justice Byron R. White: Now, you're proving my point.

You really ought to take race into account in going --

Mr. Lawrence G. Wallace: To see whether your new procedure will have the effect of denying the minority meaningful participation in the political process.

That's right.

Chief Justice Warren E. Burger: Do you think the Act Mr. Wallace, do you think the Act contemplates and intends to encourage bloc voting by racial groups?

Mr. Lawrence G. Wallace: No, we don't.

We don't presume bloc voting and we don't think the Act is intended to be anything comparable to the statute struck down in Anderson against Martin.

We don't want to turn the Act into something like that.

But we have here a situation in which this was the reality, bloc voting is occurring and partly nurtured by the statute struck down in Anderson against Martin which required racial identification on the ballots and you got findings here that the black votes will in effect be wasted except in districts in which the blacks are in a majority.

You've got a special situation here which has to be taken into account in determining whether the purposes of the Act are met and you combined that with a look at these districts which are drawn as long north-south slivers rather than compact districts and it's quite apparent that while they may have made a great deal offense at the time when the black voters across the middle of the city weren't registered and weren't voting and you didn't want to have a large district in the middle with just a handful of white voters controlling one councilman, this pattern has now been perpetuated in a way that fragments the black vote, submerges the bulk of it into majority white districts against the background of a situation in which there are findings supported by the evidence of the pattern of racial bloc voting and of unresponsiveness to the needs of the black community by persons elected through this racial bloc voting.

That seems to us to meet the standards of White against Regester.

Justice Byron R. White: This case had come up in a state not covered by Section 5 and it had just been arose as an ordinary reapportionment suit by citizen claiming that it was discriminatory that the case would come up the same way.

Mr. Lawrence G. Wallace: Oh!

Well, I think it would be quite different.

Justice Byron R. White: Well, you cited White against Regester, that's just a --

Mr. Lawrence G. Wallace: We're citing it as an a fortiori holding.

It was a constitutional case in which detailed findings were made and this very well could be a constitutional violation --

Justice Byron R. White: Well, you just said it was.

Mr. Lawrence G. Wallace: -- in this situation but it wasn't necessary for the District Court to go there at far and we didn't have to contend that much.

Justice Byron R. White: Well, you just have though.

You said it satisfies White against Regester and hence it's constitutional violation.

Mr. Lawrence G. Wallace: Well, the factors -- I think that a strong argument could be made to that effect.

We haven't taken a position on that.

It's unnecessary here.

Justice Byron R. White: Well, you just did.

Mr. Lawrence G. Wallace: The factors -- the factors that were upheld by this Court is sufficient to find the constitutional violation of White against Regester are very comparable to the factors in which the District Court relied here.

In addition to extraneous factors that weren't necessary to the result in our view and that's the situation, the findings are detailed in our opinion, in the Court's opinion and are recounted in the briefs.

Our position is that the District Court did reach the correct judgment against the background here.

We have spelled out in some detail in our brief why the guidelines used by the city to justify this particular reapportionment either were not consistently applied or could be satisfied equally well by a plan which would not have the same diluted effects, the same fragmenting of the black vote in this situation and we submit that the judgment below should be affirmed perhaps with some clarification about the at large situation here since when a new plan is submitted, if a new plan is submitted to the Attorney General, we would feel that an interpretation of the Act by a Court with respect to the at large seats would be something we should honor.

If the opinion can be read as saying that regardless of what is done with the districts, the two at large seats would have to be rejected in this case which is not the position we have taken.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Wallace.

Mr. Halpin.

Justice Lewis F. Powell: Mr.Halpin, before you start, will you tell me what happened to the republican in NAACP plan?

Argument of Stanley A. Halpin, Jr.

Mr. Stanley A. Halpin, Jr.: Yes sir, Mr. Justice and it please the Court.

The republican plan was a plan submitted to the council.

It was apparently never voted on to consider, the NAACP plan was a plan submitted to the city council to consider in its redistricting the I would specifically mention so there's no confusion to this Court that we are not supporting the NAACP plan nor have we ever and the evidence indicates that this came up in the trial court.

Evidence in this case indicated that the NAACP plan was submitted as a political expedient, a plan which that group thought might possibly be passed by the council and be little less worse than some other plan.

Justice Lewis F. Powell: Do you perceive any real difference between the NAACP plan and plan number two?

Mr. Stanley A. Halpin, Jr.: I think the NAACP plan also discriminates against black voters Your Honor.

Justice Lewis F. Powell: In other words, you see no difference really between the two.

Mr. Stanley A. Halpin, Jr.: Well, I think it's a little less worse if you want but no significant difference.

Justice Lewis F. Powell: A little less worse?

Mr. Stanley A. Halpin, Jr.: Yes sir.

Now, in that sort of series of question opposing Mr. Wallace in which I think this is sort of suggesting and goes to what is the dilution in this case and what is the standard under Section 5 and does that standard somehow require some sort of reverse or benign gerrymandering.

I'd like to address that in this way.

I believe the intention of Congress in enacting Section 5 particularly as it relates to redistricting plans is set out in the legislative history and in that history, there is a repeated reference to the problem that once black voters get registered in significant numbers because of the application of other sections of the Act, they would still be faced in certain areas under certain political circumstances with being cut off from the political process.

Cut off at the last step by districting lines which would divide up these newly concentrated, newly enfranchised concentrations of black, submerge them in majority white districts and therefore by effectively divide and conquer this vote.

Now, the hearings before Congress particularly didn't leave it just at that.

The Congress was well aware of the practices for instance of bloc voting, of non-responsiveness in these jurisdictions to the distinct interest of this minority.

In this case as well, the District Court, if you won't reexamine perhaps unnecessarily but reexamine in regard to New Orleans whether it was -- whether these type of factors existed there and they did find that for instance, in New Orleans up to -- there was a large increase in black voting that there was in fact a division of this black voting surrounding that there had been bloc voting in New Orleans and that the key -- that there had never been a black elected to the city council and that the city council have failed historically and continued to fail to respond to the distinct interest of the minority.

Justice Byron R. White: Your suggestion is -- are you suggesting this that the city in redistricting itself should avoid dividing up with black voting strength?

Mr. Stanley A. Halpin, Jr.: Your Honor, yes.

I think when there is a particular where --

Justice Byron R. White: Some cares to drawing your lines as to what it does to the minorities living in a particular area.

Mr. Stanley A. Halpin, Jr.: Particularly here Your Honor where Plan I for instance had been objected to.

Justice Byron R. White: May I suggest yes.

You should take it.

Mr. Stanley A. Halpin, Jr.: Yes sir.

Once you have a violation of Section 5 of this sort that has divided the black concentration to remedy obviously is to not divide the concentration.

Justice Harry A. Blackmun: Mr.Halpin --

Mr. Stanley A. Halpin, Jr.: Yes sir.

Justice Harry A. Blackmun: What if Plan II had been a seven-member council all elected at large, would that have violated Section 5?

Mr. Stanley A. Halpin, Jr.: Absolutely, Your Honor.

Justice Harry A. Blackmun: It would?

Mr. Stanley A. Halpin, Jr.: Yes sir.

Under of course with the, you know the evidence and proof of this case.

Justice Harry A. Blackmun: With the population of the City of New Orleans, you say a seven-member council all elected at large would have been a violation.

Mr. Stanley A. Halpin, Jr.: Yes, sir.

Justice Byron R. White: It's for sure I think because it wouldn't even reserve one.

Mr. Stanley A. Halpin, Jr.: Yes sir.

Yes sir.

I think.

Justice William H. Rehnquist: When you speak of dividing the black concentration, looking at that map that Mr. Wallace per drawing on page 620, the one with the green dots and the red dot, that doesn't strike me as what I would call a concentration.

It looks like a minority voters are pretty well spread out.

Mr. Stanley A. Halpin, Jr.: I think it is a concentration, Your Honor.

Of course, the District Court did find it to be so considering other evidence besides just looking at the map of course, but if the Court for instance would examine the larger map which is originally in exhibit can see that these areas are cut off effectively from white areas to the north and the south and that it composes of rather consistent band of concentration of blacks throughout the center of the New Orleans that are effectively cut off from white communities by natural boundaries, cemeteries, lakes, canals, and so on.

Chief Justice Warren E. Burger: What do you mean to say about the burden of proof standard used by the District Court?

Mr. Stanley A. Halpin, Jr.: Your Honor, I think that you know, there's no question under Section 5 that the burden of proof is upon the plaintiffs who demonstrate that both the plan lacks a discriminatory purpose and lacks a discriminatory effect.

I think there's no question as to the wording of the statute.

Chief Justice Warren E. Burger: Do you think that's all the District Court required?

Mr. Stanley A. Halpin, Jr.: Yes sir.

I do indeed.

There's, you know, and also I would note particularly in this case that that the burden question doesn't become particularly significant because the facts in the case were basically not in dispute and wherever the burden happens to be, you tilt that is shifted, is not specially significant particularly in regard to the effect.

I think you were arguing primary legal standard and that there isn't much contest as to precisely what the facts are.

Justice William J. Brennan: But the District Court said, they had that effect and therefore we don't have to inquire into the other element of purpose.

Mr. Stanley A. Halpin, Jr.: Well, Your Honor, I think it's not necessary reset.

However, I think there is --

Justice William J. Brennan: But isn't that what the District Court did?

Mr. Stanley A. Halpin, Jr.: Yes sir.

They predetermined the question of purpose.

I think the question of purpose however that there's ample evidence in the record to indicate that there was a racially discriminatory purpose and that would provide an alternative basis for this Court's affirmance.

Particularly, the bad faith of the council from Plan I to Plan II, that Act has affirmatively rejected Plan I.

Plan II was hardly a good faith but to correct that.

Also I think the courts are more and more willing to recognize the purposeful discrimination from facts and circumstances.

It's no longer a situation where white officials bend on discrimination would get on the stand and admit that they discriminated.

I think there is the type of situation here where the Court could in fact find that there was such a purpose.

I think given the legislative history of Section 5, I think Congress did definitely intend to set up a different standard than the Fifteenth Amendment.

And under that standard, they might well be in individual cases say a redistricting plan which would not be acceptable under Section 5 which under a particular constitutional case wouldn't be declared unconstitutional.

And this has to be characterized a couple of ways.

It could be characterized merely as an inference of unconstitutional gerrymandering from these facts and circumstances or it could be characterized as a substantive rule but in any effect, I think it's very clear after this Court's decision in South Carolina versus Katzenbach and some other cases that it is quite possible that Section 5 will prohibit a type of arrangement that might not otherwise be unconstitutional on individual case.

Justice Byron R. White: Are you suggesting that the way you want me to look at it is sort of a remedy to a historic practices?

Mr. Stanley A. Halpin, Jr.: Yes sir, I think that's what Congress was intending.

I think it saw that there was discrimination in schools, in education, in jobs and so on in voting, going back down and the reason was that the elected officials were able to ignore the particular interest of the black minority and by appealing to bloc voting and the like and that the Congress intended to eliminate this by preventing the division for instance in redistricting plans of these concentrations of black voters so that the white incumbents or politicians in power couldn't appeal and harness bloc voting in such a way that they could then just ignore the interest of blacks.

Justice Thurgood Marshall: How about the at large, the two at large?

Mr. Stanley A. Halpin, Jr.: Yes sir.

Justice Thurgood Marshall: How long do you have the at large seats?

Mr. Stanley A. Halpin, Jr.: There is a history which goes back and forth but prior to 1954, there was a seven-member commission body elected from districts and then in 1954 the plan was changed and there were two at large members, so the present system dates from 1954.

So there's no question --

Justice Thurgood Marshall: Did you ever have at large before this?

Mr. Stanley A. Halpin, Jr.: I think Your Honor, there's a -- I think there were some at large seats at some time or other the one document in the record of (Inaudible) in New Orleans trace that back but I don't recall.

Justice Thurgood Marshall: If you have them since 1954 then it violates Section 5?

Mr. Stanley A. Halpin, Jr.: Well, to this extent Your Honor, the plaintiffs are contending that the District Court shouldn't consider the at large seats in examining whether the five districting plan were racially discriminatory.

We think that this is frankly nonsense.

We think this Court indicating United States versus Georgia that it's a matter of political reality.

Section 5 is not just a list of voting type changes.

I think the Court was not only could but was bound to look at the thing the way it operates and the way it operates is that you had two seats in which whites would certainly be elected and in which would not respond to the black community.

Justice Thurgood Marshall: If they have not reapportioned at all you could have done anything, could you?

Mr. Stanley A. Halpin, Jr.: Well, Your Honor, in fact, the -- in regard to the two at large seats --

Justice Thurgood Marshall: Because you've done anything under Section 5, no you couldn't.

Let some changes revise it.

Mr. Stanley A. Halpin, Jr.: Yes sir.

There's no question but I think that --

Justice Thurgood Marshall: There are no changes made in the at large.

Mr. Stanley A. Halpin, Jr.: I think the change is though, the districting arrangement was changed Your Honor and I think the five -- the construction of the five districts was changed and so therefore the District Court in examining whether or not the arrangement of the five seats, the way it was rearranged was racially discriminatory or not necessarily would have to look at other factors as the Court said, a backdrop including the fact that the two at large seats were there.

Now, this doesn't mean that it's precluded under any kind of situation from having two at large seats.

There may be -- the District Court just found that the combination under these circumstances that the two arrangements was discriminatory.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Stoner, you have three minutes left.

Rebuttal of James R. Stoner

Mr. James R. Stoner: Thank you, Your Honor.

May it please the Court.

We have heard counsel for the United States the Executive Department of the United States Government and we have heard counsel for the intervenor state that because of the two at large seats, the white vote in the City of New Orleans starts out at the outset with two seats.

Now, I submit to the Court that both counsel had neglected to bring to the Court's attention the fact that the record shows this that three blacks have been elected in other elections in at large elections in the City of New Orleans in the past.

Judge Morrell was elected to the Fourth Circuit Court of Appeals.

Judge Israel Augustine was elected to the Criminal District Court and Dr. Spears was elected to the present New Orleans Parish School Board and New Orleans Parish is the same geographic limit as the City of New Orleans.

Now, here are three blacks who have in fact run for political office, state -- citywide in the City of New Orleans and they've won.

And I will ask my opponent counsel to consent by stipulation of the court to also bring to the Court's attention a matter which occurred in 1974, November 1974 and I'm referring to the election of Edwin Lombard on a citywide basis, a black candidate elected to the clerk of the criminal district court and in that election, he defeated a white incumbent candidate.

Now, I submit that we cannot start with a proposition and both counsel had taken that proposition that in 1970s that --

Justice Byron R. White: Well, (Inaudible)?

Mr. James R. Stoner: You're right Your Honor and I will say that -- and I will say that the United States Government by the Executive Department is encouraging bloc voting before this Court right now and they are encouraging racial polarization.

Chief Justice Warren E. Burger: Mr. Wallace says that something like that, he said he did not think it was a purpose of the Act or the objective of Congress to encourage bloc or racial voting.

I take it obviously you would agree with that.

Mr. James R. Stoner: I would agree with that.

As a matter of fact --

Chief Justice Warren E. Burger: But you say their practice in the Department of Justice is not consistent with that expression of philosophy.

Mr. James R. Stoner: Exactly.

Exactly Your Honor.

I would submit that it's the obligation of Government to encourage people to live harmoniously together and the history of the world shows that where people learn to live harmoniously together, they can successfully advance their interest.

Justice Thurgood Marshall: All of these judges have been elected then on -- do you know any large city of the Deep South as of today that's never have a Negro on its city council, other than New Orleans?

Mr. James R. Stoner: Your Honor, I don't know.

I must admit, I do not know.

I have not made a study of city councils in large cities in the south.

I do say, however, that there has been no election for the city council since 1968 or 1969 and I further submit that this Court must look at the conditions in New Orleans as existing in 1970 not as they existed back in ‘60s or the ‘50s.

Sure there was racial discrimination, parties were discriminated against but --

Chief Justice Warren E. Burger: (Inaudible) now Mr. Stoner.

Mr. James R. Stoner: The record shows substantially that that situation has changed in the City of New Orleans.

Thank you Your Honor.

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