BRISCOE v. BELL

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Argument of David M. Kendall

Chief Justice Warren E. Burger: We will hear arguments next in 76-60, Briscoe against Bell.

We will wait for the audience a little bit, counsel.

Unknown Speaker: We have thought they came to hear us but...

Chief Justice Warren E. Burger: You want to just get an attraction.

Mr. Kendall, I think, perhaps, you may proceed now.

Mr. David M. Kendall: Thank you, Mr. Chief Justice, and may it please the court.

I am David M. Kandell, First Assistant Attorney General in the State of Texas, with me this morning is Mr. Lonny. F Zweiner, an Assistant Attorney General and the Honorable Mark White, Secretary of the State, of the State of Texas whose has both, lawyer License to practice in this court and authority to this suit.

Despite the fact that in testifying before the House Committee considering extension of the Voting Right Bills, Mr. Stanley Pottinger who is that time Chief of the Civil Rights Division of the Justice Department, testified that there was no need to extend the Voting Rights Act in 1975 to the State of Texas.

The act was amended and on September 18th of 1975, the Attorney General Mr. Levi and Mr. Bravesi, the Bureau of the Census issued a statement which merely recited the other requirements of the Voting Rights Act and then said that the Director of the Bureau of the Census and the Attorney General had made their determinations pursuing to Section 4(d) and 4(f)(3) of the Act and under those determinations, Texas Statewide was now, covered by the Act, published on September 18,1975 and that began the Texas?s saga with the Voting Rights Act.

Now, some 20 months later and many thousands of submissions later, we are still submitting every change made in several thousand voting elections agencies in the State, from the State itself on down to Voter Districts to the Attorney General for his clearance.

Justice William J. Brennan: How many does that add up to (Inaudible) cause.

Mr. David M. Kendall: Judge last night, Mr. Justice Brennan, last night I looked at the last three notices, we have received from the Attorney General and they were around 18 to 25 a week from the State of Texas.

At this time, 20 months later in our brief we say that...

Justice William J. Brennan: Did you say several thousand?

Mr. David M. Kendall: Yes, Mr. Justice Brennan, our estimate in the brief is, it has been 5,000 submissions and they are going at the rate of 18 to 25 a week.

Out of that vast number of submissions 26 have been disapproved according to the sector wide at this late date.

The petitioners in this suit, petitioners in the lower Court were the Governor of the State of Texas, Dolph Briscoe and Secretary White.

And it was our complaint then, as it is now that the manner in which we were brought under the coverage, denied us rights, were unfair and were not consistent with the Statute or with the holdings of this court.

We have basically two points.

First of all, we say that the Justice Department, the Attorney General has misconstrued and misapplied the Section 4 of the Act, in his instructions to the Bureau of the Census, that portion of the Act, that calls for the determination as to other fewer than 50% of the citizens of voting age were registered in 1972 or whether fewer than 50% of such persons voted in the Presidential election in that year, also misconstruing and misapplying Section 4(D) which advices what elements are to be considered and determining whether or not the State has used a tester device within the meaning of the Act.

We also say that we were mistreated, if you will, in that the determinations of the Bureau of the Census and of the Attorney General, that Texas came within the factual requirements of the Statute were made arbitrarily without affording the state an opportunity to be heard without considering a very much evidence which was available at that time and by which had it been considered by the Census Bureau, the determination would have been; the Texas was not covered.

I would like to make it clear, at the outset, we do not question of the constitutionality of the Voting Rights Act.

We recognized that that has been determined in the South Carolina against Katzenbach, and we do not raise those issues at this time.

Under the 1975 Amendments, I repeat if I may, there were two determinations to be made to bring Texas or any other state within the coverage of the Act as amended.

First of all, the use -- determination by the Attorney General that in November 1972, the State or a political subdivision had used a tester device as newly defined by the Act to include voting materials in English only, and the second was that, with respect to which state or subdivision the Director of the Census found that fewer than or less than 50% of citizens of voting age were registered on November 1, 1972 or that less than 50% -- and again the magic words, such persons voted in the Presidential election of November 1972.

It was interesting to hear that the Solicitor General speak about in the last argument, speak about the need to determine the questions from the face of the Statute.

We sort of wish that Solicitor General?s office would accord us the same right, because it is our feeling that when one looks at the face of the Statute, with which we are concerned, there is no question but that we are correct.

The United States in making its determination as to this 4(b) requirement ignores the first language.

They do not even make any determination, how many voters were registered.

They say that is unimportant, because they find that fewer than 50% of the citizens of voting age voted and therefore coverage is brought in.

We say that the language, such persons obviously refers to the words, citizens of voting age who registered and that it is given that interpretation without dispute, Texas does not cover.

Unknown Speaker: Or it is the face of the statute does say that those determinations and certifications by the Attorney General and by the Director of Census are un-revealable at in any court.

As I understand that you are not saying that?s not constitutional.

Mr. David M. Kendall: We are not asking that be reviewed.

No Sir, and we are not asking that they be reviewed.

We filed this suit before they -- the determinations become effective upon publication of that, and we had -- white had made many efforts to go before them and to present to them evidence, as to the numbers without success and so before they made any determinations, before anything was published, we brought this suit, asking for injunctive relief and asking that the District Court instruct them, as to what their duty was in making these determinations.

Like the Dunlop case, which I heard yesterday, as to whether or not the Secretary Of Labor could rightfully refuse to bring the suit, not review of his determination itself but the matter in which it was made.

We feel that the Courts do have jurisdiction to instruct the Census and the Attorney General?s office as to how they are to go about the process of reaching these determinations, which they do not consider determinations at all.

Unknown Speaker: What is your authority for thinking that the Courts have that sort of jurisdiction?

Mr. David M. Kendall: The Court please, I would like to say, just a easy way out is, no one has questioned the jurisdiction, but we do rely, for instance, on such cases as Dunlop against Bachowski, the Thermtron Products and so on.

In Thermtron, for instance, where remand of a removed case is not reviewable itself but the court could held -- this court held -- they could the review the fact that the district judge refused to review before it.

Unknown Speaker: You are relying on the same cases as the government relied out in its argument and it was that really?

Mr. David M. Kendall: In fact, I was very happy to sit here.

As a matter of fact, we did not have the Dunlop case and heard them citing and when read that we found it quite applicable.

Unknown Speaker: I noticed, it was not cited in the brief.

Mr. David M. Kendall: Yes Sir, I am sorry.

It is not, but we heard that in their argument.

So we say, we are not asking...

Chief Justice Warren E. Burger: We will resume there at 1 o?clock Mr. Kendall.

Mr. Kendall you may continue.

Mr. David M. Kendall: Mr. Chief Justice, may it please the Court.

It is our contention that, Section 4(b), sub-section 4(b) of the Statute should so construed that the words, ?Such persons?, refer to persons who are citizens of voting age who had registered in November of 1972.

It is un-controverted that the Census Bureau made no such determinations.

They completely ignored the earlier language of the section that they were to find whether fewer than 50% of the citizens of voting age were registered.

They paid no attention to that.

It is also un-controverted that using Justice Department figures, there were 7,600,000 and some odd thousands citizens of voting age and according to our figures 5,200,000 citizens of the State were registered.

That being so, way more than 50% of the citizens of voting age were registered and of such persons, those 5,200,000, I think, it is some 3,600,000 that voted in 1972 election which again is well over 50%.

Under our interpretation, more than 50% were registered and more than 50% of ?such persons? voted in 1972 and Texas is not covered by the Act.

The language of the statute is clear and non ambiguous, and that was as much admitted in the Court of Appeals where Judge Makinen(ph) said at the outside, appellants would seem to have the better argument.

It is a rule of statutory construction that the legislative enactments be so construed as to give effect to all parts and as a matter of fact, the United States in its brief at Page 37 says, ?Whatever force this contention referring to our contention might have as a purely textual argument?, and I do not find it shocking that we would insist that the text of the Statute be followed, that is what we ask.

Justice Byron R. White: How about the administrative agencies who make these plannings have construed the act this way right from the beginning, haven?t they?

Mr. David M. Kendall: The Court please, Mr. Justice White, I am not at all sure that that question has ever been presented before.

They refer to in their brief, to many statements by this Court.

And I cannot argue with the fact that this Court?

Justice Byron R. White: Well, I am not talking about the statements of this Court, I am talking about how the Bureau of Census has construed these...

Mr. David M. Kendall: That is what they say, and if it is true though, I do not know that it has ever been questioned.

In Congress?.

Justice Byron R. White: It has not been questioned but that was, but do you deny that that was a practice?

Mr. David M. Kendall: No, I do not.

Justice Byron R. White: And do you deny that, it was a practice at the time, the act was reenacted?

Mr. David M. Kendall: It was the practice at the time, the act was reenacted and in the Congressional hearings, if we go to those, because we say, there is no need to go to the hearings because the Statute is not ambiguous.

But if we go to the history, we will find them saying, that this language under our construction, Justice Brennan?s construction, it is unnecessary.

That was even I think an amendment post to take it out, the language about registration, and that was defeated.

Justice Byron R. White: But Congress...

Mr. David M. Kendall: The Congress left the language.

Justice Byron R. White: The Congress certainly was told how that language was being administered.

Mr. David M. Kendall: Yes it was.

Court Please, I do not know what the Congress could have done that it did not do, If it wanted that language give an effect.

The facetious perhaps put a footnote to the Statute to say?

Justice Byron R. White: We really mean it.

Mr. David M. Kendall: Known to the Courts, we really mean it.

We have said it before we say it again; we are saying it now, that this is the formula.

There is no other way to say, it could not be said any clearer than it was said, and the cardinal rule of construction followed by this Court, as far as I know of, every other court in our nation is, you give full meaning to the language of the Statute.

You do not disregard any language, if you can help it.

And yet to follow their analysis and their interpretation of the Statute, you must just disregard the language requiring a finding that fewer than 50% of citizens of voting age were registered.

Unknown Speaker: Whether it is worth the doctrine of legislative acquiescence cuts a little bit the other way, doesn?t it?

Mr. David M. Kendall: I am not certain, in how it cuts in this case where, they knew that there efforts made to take a language out, where they knew that the Attorney General?s office had not been giving an effect and yet Congress reenacted it.

I think they must have intended -- as I said, I don?t know what else they could have done, or have they intended.

It has some effect.

We submit that there is no need to get into a construction of the Act because it is so important.

Unknown Speaker: The Committee very easily, could have used the same language and then in its reports might have said, we really mean it.

Mr. David M. Kendall: Of course, the reports that we have do not reflect really what very few members of the Congress felt about it, those who voted, and we have statements by few.

Justice John Paul Stevens: Mr. Kendall, how can you argue, the statute says, 50% of such persons, the question is which person, if you looked at the preceding language, the persons described are persons of voting age.

So, one could certainly argue ?such persons? refer back to the persons of voting age here.

Mr. David M. Kendall: The Court please, Mr. Justice Stevens, if you do take that position then you disregard the language of the first section, then becomes meaningless, as the Justice Department says.

They don?t need to make finding as to how many were registered because there will always be fewer who have voted than who are registered.

Justice John Paul Stevens: Well, I understand that practical effect but chromatically one could read it the way, the opponents do I think.

Mr. David M. Kendall: We think that it takes a stretch.

Now, the original act, as enacted in 1965 talked about the language was, 50% of persons of voting age, and it was amended in this, to say, citizens, and we think the reference here clearly, is to citizens of voting age who registered, such persons, 50% of them, vote.

We have the same problem with reference to Section 4(d) of the Act, 4(d) in Section 4, apply the languages, for the purposes of this section, ?no state or political subdivision shall be determined or engaged in the use of tests or devices for the purposes or effect of denying or britting the right to vote on account of race or color, and so on.?

If incidents of such use have been few in number and have been properly and effectively corrected, and other factors to be considered in determining whether or not, a jurisdiction uses tests or devices.

The Justice Department disregards the language that says for the purposes of this Section, and says, if that applies only to a bailout suit under Section 4 (a) and not to a determination under 4(b).

We do not know how they make that selection, one of that triggers for coverage of the state under the Act is a determination of the Justice Department, that in November 1972, the state or the political subdivision employed a ?test or device?.

We submit, we feel that we could meet the tests for the -- but in any event, the Justice Department should have been required to maintain or to look into that question.

Unknown Speaker: Well, how would you apply 4(d) to 4(b)?

4(b) just says, you make some calculations and that is the end of it.

Mr. David M. Kendall: One of the triggers, if the court please, is a prior determination by the Attorney General that the jurisdiction employed in November, employed a ?test or device? as defined there and it?s to find in 4(c)...

Unknown Speaker: Now, where is that?

Alright, I got kept that, ?maintained on November 1, 1964 any ?test or device?, it says any ?test or device? with respect to which?

Mr. David M. Kendall: Well, if the court please, I think obviously this Act must be to sustain its constitutionality as the court did in South Carolina against Katzenbach, it must be aimed at ?test or devices? which have the purpose or effect of discriminating in voting rights and it can not just be any ?test or device? regardless and we submit that 4(d) is a proper test of how whether or not a jurisdiction is maintaining, did maintain a ?test or device?, not just for takeout.

Again, it is very easily have said for the purposes of Section 4(a), ?test or device? means, it did not say that, it said, for the purposes of this Section and this section is Section 4 and we submit that at least Congress, the Attorney General?s office should have given consideration to whether or not Texas met the tests of 4(d).

Unknown Speaker: When you say they should have given consideration, does that mean anything more than in their internal deliberations they should have maybe considered this and perhaps rejected it?

Mr. David M. Kendall: That I think, if they gave good faith, attention to it, considered it, I think that would meet the requirement.

But they expressly state that they did not, and do not, and will not and that is what we are challenging.

We are not challenging their finding, that Texas maintained the ?test or device?, we are challenging the method in which they arrived at that finding.

Just arbitrarily reading the Statute as they would read it, not paying any attention to 4(d) and we say the Statute requires that they consider those questions in making their determination.

Unknown Speaker: Well, but can you be certain that at sometime or other the Attorney General or the Civil Rights Division, or somebody has not at least given some thought to this suggestion risen and rejected it?

Mr. David M. Kendall: If the Court please, I am sure they have given thought to our suggestion that they ought to consider it, and I am equally sure and I am sorry, I can not tell you the chapter and verse, but I am equally sure that they have said that they would not consider it.

Unknown Speaker: Well, but?

Mr. David M. Kendall: They say in their brief that they do not consider it and they are not required to and we say they are.

The other point, I would like to make very briefly, is that they have failed to consider evidence, which is readily available to them.

Now, using their figures and we are not in the numbers game, but they started out with a figure that -- which they get by interpolation that there were 7,655,000 citizens of voting age in Texas on November 1, 1972, and we do not agree with that figure, but will accept it for the sake of this argument.

Then they go, they say, there are 140,000 aliens in Texas.

Despite the fact that the Immigration and Naturalization Service has published a report saying that November 1972, there were 2,600,000 illegal Mexican aliens in United States, now they do not say how many in Texas.

But we submit they are the ones who determine upon the need to delete, to deduct the number of aliens in arriving at citizens of voting age, not we.

Justice Harry A. Blackmun: As a matter of fact Mr. Kendall, in your brief on Page 24, you suggest that perhaps, half of the number were living in Texas and on 25, you say of which it maybe estimated that a quarter were living in Texas.

Mr. David M. Kendall: Yes Sir, Mr. Justice Blackmun, we have no way of knowing how many, as I say, that is their responsibility, not ours, I think.

What we are saying again, I do not want to say a particular figure, we made some suggestions in our brief as to what it might be.

But what we are saying is that they were required to do more than just a guess, at what the figures might be and here is a figure which I think any Texan would be absurd to say that there are only a 140,000 aliens, legal and illegal in Texas in November 1972 of voting age.

Unknown Speaker: Is not the Immigration Department right in the department Of Justice?

Mr. David M. Kendall: I believe it is?

Unknown Speaker: Well, they get the figures right there, is not it?

Mr. David M. Kendall: This was from the Census, these figure or determinations made by Census.

Unknown Speaker: How do you assume that department did not have those figures?

Mr. David M. Kendall: They said they did not.

Unknown Speaker: They did not have the immigration figures?

Mr. David M. Kendall: They said they did not use them; they used figures from the Bureau of Census.

Unknown Speaker: They did not say, they did not have them.

Mr. David M. Kendall: No, they did not say, they did not have them, I am sorry, but they did not use them, Mr. Zweiner in his affidavit, which is at the record on the page 155 of the Appendix tells how the determination was made.

Unknown Speaker: Well, would not that be a washout anyway, the figures, who cancel themselves out, if you had -- let us even assume you had five million illegal aliens in Texas and that were added to the total of the persons of voting age in Texas, then the next step would be to subtract that five million, in order to give you a what is called a softer hand or not, result of citizens of voting age in Texas, eligible to vote.

Whatever the figure was, it would cancel itself right out, why it is ten million?

Mr. David M. Kendall: That is the position Your Honors please, has taken, is the same figure.

Unknown Speaker: Isn?t that correct as a matter of fourth-grade arithmetic.

Mr. David M. Kendall: Only if they same, if the illegal aliens and the legal aliens did not appear in that first figure of the population.

Then they have to be taken out, there is no effort made to find out or to determine a citizenship of a person, a person is asked on the...

Unknown Speaker: You get a gross total and that includes the illegal aliens and let us assume that is ?x? and then the next thing you do is subtract ?x? and it does not make any difference, what ?x? is, it is going to be washed right off.

Mr. David M. Kendall: Well, we feel, if the court please, that they are under an obligation to consider these figures and they are the ones, as I say, who determine that I figure was necessarily subtracted for illegal aliens and we submit that they should be required to considered all of the evidence again on that factor.

Unknown Speaker: I have a great difficulty in how illegal aliens come in (Inaudible).

Mr. David M. Kendall: They do not vouch, if the Court please, only 5% of the?

Unknown Speaker: Well, how did they get on the Census there?

Mr. David M. Kendall: Census takes it, as how many people live here, 15, puts down 15.

How many were born in this state or in this country, all of those, and 15 illegal aliens were on the registers as residents of the State and according to Census Department figures, they appear as citizens of the state of Texas.

An illegal alien is not going to tell anybody that he is an illegal alien.

Unknown Speaker: Now you can come forth and not say anything?

Mr. David M. Kendall: Well, he may not have to make the admission that he lives there, so many make that form, he is counted as a person living there, we have to assume that they count, they count everybody, I would like to reserve sometime for rebuttal.

Chief Justice Warren E. Burger: Very well Mr. Kendall.

Mr. Shapiro.

Argument of Howard E. Shapiro

Mr. Howard E. Shapiro: Mr. Chief Justice and may it please the court.

I would like to just describe the Voting Rights Act amendments of 1975, as they are relevant to this case, then discuss the statutory preclusion of review of the coverage determinations that is contained in Section 4(b) of the Statute, as it effects the District Court?s jurisdiction, and then address the merits of the contentions, Texas has advanced.

The Statute appears in the brief in opposition filed by the respondents at Appendix 1 (a) through 6 (a).

There are one or two provisions which we have not set forth, which I will mention briefly.

One preliminary word, the Statute was adopted with Texas, specifically in mind and so far as the minority language group guarantee is concerned, both the Senate and the House reports describe this in detail, as did the hearings.

Now, the 1975 amendments contained a number of titles.

In Title 2 of the amendments, Congress made express findings in Section 4(f)(1) that is on Page 4(a) that voting discrimination against citizens of certain enumerated language minorities was pervasive and national in scope and that to enforce the Fourteenth and Fifteenth amendments, it was necessary to eliminate that discrimination by prohibiting English only elections as to those people and by adopting other remedial devices.

The term language minority was in turn defined in Section 14(c)(3) of the Act which we have not printed, to mean persons belonging to American-Indian, Native Alaskan, Asian-American or Spanish Heritage groups.

The devices under Title II that Congress adopted, included extension of the existing Voting Rights Act prohibitions against the use of ?tests and devices? as a pre-requisite for voting.

A requirement for pre-clearance under Section 5 of changes in the coverage jurisdictions election laws and there were necessary assignment of federal examiners to register voters.

Now, let me distinguish Title II from Title III, because there is some material in the record that refers to Title III.

In Title III of the amendments, Congress also adopted some separate remedies for jurisdictions, in which minority language voters were disadvantaged because of educational deficiencies, but there did not seem to be evidence of intentional discrimination.

Jurisdictions covered by this provision, must also cover conduct elections only in English, but the special remedies, such as Section 5 or voting examiners are not applicable.

Now we are not concerned with Title III, in this case at all.

In this case, we are concerned really only with members of the Spanish Heritage category of language minority.

In Section 4(f)(2) of the Act, Congress prohibited denial or abridgement of the right to vote because a person is a member of the enumerated language minority.

It added a third sentence to the existing triggering provisions, providing that the prohibition against the use of tests and devices, contained in the act would apply in state and political subdivisions as to which the Attorney General determined maintained on November 1, 1972.

Any ?test or device? as defined in the act and with respect to which the Director of the Census determined that less than 50% of the citizens of voting age who were registered or less than 50% voted in the Presidential election of November 1972.

Now, this was a change in the coverage formula, the previous coverage formula, in the 1965 Act and the 1970 Act had referred to persons of voting age, because Congress was addressing the problem of language minority, for the first time, it focused on citizens voting only, and it adopted a change in the third sentence, specifying that only citizens could vote, that is how the alienage problem got into our case.

The term ?test or device? had been defined under the old act as meaning prerequisites for voting, requiring demonstration of literacy or education achievement or knowledge, good moral character or proof of qualifications by some sort of vouchering.

In Section 4(f)(3), Congress amended the definition of ?test or device? to add a new concept which is what we are dealing with here.

It referred to provision of voting materials ?only in English language? where the Director of the Census determines that more than 5% of the citizens of voting age residing in the state or political subdivision are members of a single language minority.

Now, the 1965 Act as amended, makes no provision in these triggering sections for hearing.

It also bars review of a determination by the Attorney General or Director of the Census with respect to the triggering provisions.

Unknown Speaker: Mr. Shapiro, that provision barring review and -- was it 4 (b) or...

Mr. Howard E. Shapiro: 4 (b), it is in Section 4 (b) Your Honor.

Unknown Speaker: Does that mean that if the Attorney General objects based on this data and Texas should file a suit in the Three-Judge District Court, in the District of Columbia that the figures would not be open to challenge there either or does that just mean that they can not challenge the administrative determination?

Mr. Howard E. Shapiro: As I understand it, Your Honor, the bar against review would affect proceedings in the Three-Judge Court in the District of Columbia to bailout of the coverage, under Section 4(a).

Unknown Speaker: It says, in any court.

Mr. Howard E. Shapiro: In any court, it says.

Now that the determination by the District Court in the District of Columbia is whether the ?tests or devices? have been maintained for the purpose or with the effect of discriminating or in violation of the language guarantees.

The only way in which the Attorney General?s determination that a ?test or device? was maintained could be challenged, is if the jurisdiction came in and said, we could not be using it for the discriminatory purpose because we do not have any.

Unknown Speaker: Well, are they bound by the Attorney General?s determinations, that they do have it?

Mr. Howard E. Shapiro: Well, the nature of the determinations, the Attorney General makes is such that, I do not think there will ever be an issue of that kind.

Unknown Speaker: Yes, but you would certainly say that in the District of Columbia, Three-Judge Court, the provision of 4(d) could be open.

Mr. Howard E. Shapiro: Oh, yes the provisions of 4(d) are open.

Now 4(d) is addressed expressly to whether the ?test or device? was maintained for the purpose or with the -- for a discriminatory purpose or with a discriminatory effect.

That is the 4(d) inquiry and it is addressed only, I am sorry.

Unknown Speaker: 4(d) says, if the incidence of such use has been few in number, has been properly and effectively collected.

Mr. Howard E. Shapiro: Yes, then the court is not to...

Unknown Speaker: In fact such has then been eliminated.

Mr. Howard E. Shapiro: That is right, so the Court is then to hold that the use of the ?test or device? is not to be treated as discriminatory in purpose or effect.

Unknown Speaker: But the State is bound by the finding that they have been using a test and device, when they go into the Three-Judge District Court.

Mr. Howard E. Shapiro: They are -- I think it would be open to them only to say that as part of their proof that they were not discriminating, that they did not have the test, and that they could not go beyond that of returning to the structure of the statute then...

Unknown Speaker: Before you go on, maybe you have already answered this, so I missed it on the Page 5(a) of the Appendix to your response on opposition.

The very last sentence on Page 5(a) under little three there, with respect to Section 4(b) the term ?test or device? has defined in this subsection, which is the foreign language subsection, shall be employed only in making the determinations under the third sentence of that subsection.

Which is a third sentence and what does that mean?

Mr. Howard E. Shapiro: That refers, Your Honor, to the third sentence of Section 4(b) which setup the new triggering provisions, and that is on page 2(a).

It actually begins, let me make sure, I have got my pages, I am sorry Your Honor, that is 3(a).

Unknown Speaker: Yeah, which is the third sentence?

Mr. Howard E. Shapiro: And that begins -- actually it is 4 (a), I beg your pardon, top of 4(a), ?on and after August 6, 1975?, that was a date of enactment of these amendments, and than the new triggering provisions were stated.

The proceeding two sentences are the original 1965, triggering provision and the 1970 extension.

Returning then to the structure of the Statute, I have just mentioned that under Section 4(a) there can be a bailout suit with respect to a determination of the use of a ?test or device? for the discriminatory purpose or effect.

This is the only time that such an inquiry has made with respect to the definition of ?test or device? there is nothing in Section 4(c) defining the original ?test or device?, nothing in Section 4(f)(3), defining the new language ?test or device? authorizes an inquiry into whether or not the ?test or device? has a purpose or effect.

So that, when you go back to the triggering provision and look at what the Attorney General has to determine, you will see that on Page 4(a), all that he determines, is whether the jurisdiction maintained on November 1, 1975, any ?test or device?.

There is no statutory authorization for the triggering determination to inquire into whether it was used with a discriminatory purpose or effect.

Congress made that determination in the exercise of its powers.

Now, I would like to talk about the jurisdiction, because section 4(b) bars review in any Court of a determination and certification, of the Attorney General and the Director of the Census, under Section 4 and certain other enumerated sections.

First, let me say that the Attorney General now agrees with the Court Of Appeals construction of Section 4(b) in which the Court Of Appeals held that there was a very, very limited ground for inquiry under the Statute and that this suit is permitted because of that very limited inquiry.

Let me say the outset, that in Gaston County against United States under the old Act in 395 US, the Court stated at Page 291 that the coverage formula chosen by Congress was designed to be speedy objective and incontrovertible.

As we read section 4(b), the only matter that can be opened to record, opened to review on this record is whether the Attorney General or the Director of the Bureau of the Census applied some coverage formula other than the formula chosen by Congress, and that is all that can be reviewed.

In the face of an expressed preclusion of judicial review worded like section 4(b), only inquiry that is available on this record is whether the defendants exceeded their statutory authority.

Unknown Speaker: So I think, so the Texas said, well they made these calculations but the Census Bureau said, well, we have read the statute, but we think it should just be 25% instead of 50%.

Mr. Howard E. Shapiro: That is on review.

Well, now, they said 25% instead of 50% that would be reviewable.

If they said, we will -- although the Statutes said, citizens we are going to count aliens, deliberately, that is reviewable.

Unknown Speaker: Reviewable.

Mr. Howard E. Shapiro: If however, as in this case, they say, we know we are not supposed to count aliens, we have made an estimate of the number of aliens, we think we should deduct and we have deducted them from our calculations, that is un-reviewable.

Unknown Speaker: Why does the government concede as much as it does in the light of that expressed preclusion provision.

Mr. Howard E. Shapiro: After some consideration of the precedence, we felt we were bound to as we accessed that particular provision, we can only see three possible basis for judicial review, if review is the right word because it is not really review.

First, if there was a claim that the statute was unconstitutional, then we think despite that expressed preclusion, under Johnson against Robison in 415 US jurisdiction would exists.

That is not before.

Unknown Speaker: Just to make sure, I understand, if the next time the Attorney General turns down any submission, the Texas makes to it -- If Texas then went into the Three-Judge Court, it could have the determinations made under 4(d) and it would go right back to whether or not, the Texas was legitimately brought under the Act?

Mr. Howard E. Shapiro: Well, no, the 4(d) determination goes to whether the ?test or device? was used with a discriminatory purpose or effect and the Three-Judge Court would make a determination as per that.

Unknown Speaker: Well, let us assume that Texas makes a change in its voting procedures and it is not a about a ?test or device? at all, it is some thing brand new, it is never been used before.

Mr. Howard E. Shapiro: In Section 5, but that would come before the Attorney General in Section 5 of the Act.

Unknown Speaker: Alright, and then the Attorney General turns it down.

Mr. Howard E. Shapiro: He objects to it.

Unknown Speaker: He objects to it.

Mr. Howard E. Shapiro: That is a different type of suit, your Honor.

Unknown Speaker: Alright, but then Texas goes into the Three-Judge Court saying the Attorney General is dead wrong.

Mr. Howard E. Shapiro: That is completely...

Unknown Speaker: Well, I know, it may be completely -- but they have never used the ?test or device? because it has never been in effect, the one the Attorney General turns it down. So how does 4(d) come into it.

Mr. Howard E. Shapiro: 4(d) comes in only with respect to the triggering provisions.

Unknown Speaker: That is what I mean, right now, Texas could then go back and under 4(d) review the -- to the extent 4(d) permits it, it could review the triggering decisions, original triggering decisions to put Texas under the Act.

Mr. Howard E. Shapiro: Not completely.

Unknown Speaker: Well, to the extent 4(d) permits it.

Mr. Howard E. Shapiro: To the extent 4(d) permits it, but, well, the trouble is that the triggering determination by the Attorney General under section 4 does not inquire whether the ?test or device? was used with discriminatory purpose or effect.

Unknown Speaker: I understand that but Texas can have that determination made in the Three-Judge Court.

Mr. Howard E. Shapiro: In the bailout suit under section 4(a).

Unknown Speaker: In fact it shows the next time that Texas was turned down, if did have that determination made in a Three-Judge Court.

Mr. Howard E. Shapiro: Well, let us, when we say next time, let us distinguish between two sections of the Statute because it would not come over unless I make the distinction.

We are dealing here with Section 4 which extends the coverage of the Act to the jurisdictions that meet the test.

Unknown Speaker: I understand that.

Mr. Howard E. Shapiro: Once the jurisdiction is covered by Section 4, it is subject to the remedies of Section 5.

Unknown Speaker: Exactly.

Mr. Howard E. Shapiro: The Section 5 remedy requires pre-clearance by the Attorney General.

Section 5 has a separate provision not the same as the bailout suit which authorizes a jurisdiction to go into the District Court for the District of Columbia and clear any proposed change in its voting laws, and the Section 4(d) has nothing to do with that Section 5 suit.

Unknown Speaker: Has Texas ever gone in to the Three-Judge Court on the bailout suit?

Mr. Howard E. Shapiro: Not to my knowledge, but Section 4(d) has nothing to...

Unknown Speaker: The argument that is making him -- about the fact that it had already cleaned itself up by the time the amendments went into effect, that argument it could not make in bailout suit.

Mr. Howard E. Shapiro: In a bailout suit under Section 4, that is right and only there.

Unknown Speaker: Mr. Solicitor General, I am still not clear.

Under 4(d) could Texas have sought relief the day after the Attorney General decided that it was under the Act.

When is Texas entitled to avail itself a 4(d) relief?

Mr. Howard E. Shapiro: Texas may avail itself of a suit of under 4(d) at any time, it files a bailout suit under section 4(a) of the Act.

Now, the bailout formula is under Section 4(a) is set forth in Pages 1(a) and 2(a) of the Appendix, of the statutory Appendix and what it provides is that a state as to which a triggering determination has been made, thus subjecting the state to the coverage of the act, can file a suit in a Three-Judge Court in the District of Columbia and...

Unknown Speaker: But only there.

Mr. Howard E. Shapiro: And only there..

Unknown Speaker: A bailout suit only in?

Mr. Howard E. Shapiro: A bailout suit like any suit under this Act can only be brought to District of Columbia, there is a venue limitation, under Section 14.

The bailout suit can be brought in the District Court for the District of Columbia and try to show that no such ?test or device? has been used during the ten years preceding the filing of the action, for the purpose or with the effect of denying the right to vote on a kind of race or color.

Unknown Speaker: 17 years isn?t it?

Mr. Howard E. Shapiro: If it was triggered under the Act because of the language minority provision, it is only 10 as set forth on page 2(a).

Unknown Speaker: But now, you are conceding, as I understand, and correct me if I am wrong, that the determination or a certification of the Attorney General, that is referred to on page 4(a) of the respondents, your brief in opposition, is subject to limited review in something other than a bailout suit, is that right?

Mr. Howard E. Shapiro: It is right and I was about to outline or I suggested three possible grounds.

One, if Texas was challenging the constitutionality of the Statute, that the bar against review would not apply Johnson v. Robison.

Second, if this were a suit in the nature of an action in mandamus to compel some sort of duty, old Texas -- such as to make a determination under the Act.

Then we think that there might be relief under 28 U.S.C 1361, for example, to compel the Attorney General to make up his mind.

That is not this case, because this is a essentially a challenge to determinations.

Third, a claim that the action is in plain violation of an expressed statutory or statutory requirement or prohibition and to the extent, there is any review and there is a very limited review, that comes into this case.

Unknown Speaker: This is the government that can -- ever to reconcile its position here with its position on Grossett(ph) I think.

Mr. Howard E. Shapiro: We seek to be consistent in our argument, yes.

Unknown Speaker: Your second alternative is certainly consistent.

Mr. Howard E. Shapiro: The Mandamus action, I should point out that the mandamus action in Gressette involves a suit to make the Attorney General besides them and this is not that kind of a case.

The Attorney General has decided here ? moreover I point out that Section 4(b) is an express restriction on judicial review, the action in Gressette is under Section 5, there is no statutory bar of the same kind to the Section 5 mandamus, that you might find in Section 4(b).

Well, now this is the first case to reach this Court under the Voting Rights Act, Amendments of 1975 and Texas has been brought under the act for the first time in these amendments.

It was not under the earlier act because it did not maintain the kind of ?test or device? described in the previous Statute, it is conceded, there is no issue as to constitutionality.

Now, there is no issue, it is conceded that Texas used the ?test or device? within the meaning of the language minority definition contained in Section 4(f)(3) of the Act because Texas has more than 5% citizens of voting age of Spanish Heritage and it concedes that reference to election materials only in English.

So, there is just no issue as to what the Attorney General was to decide.

The statute says the Attorney General decides whether they maintain the ?test or device? within the meaning of Section 4(f)(3), they concede that they did.

No issue as to that, they contend however that the Attorney General should have considered whether they used it for a discriminatory purpose or effect the statute just does not authorize the Attorney General to decide that, it is not in there.

Unknown Speaker: (Inaudible) but clear your position on the extended reviewability, is that errors of law are not reviewed.

Mr. Howard E. Shapiro: Well, I would have to say that to the extent the error of law is one which does not go to whether the Attorney General act, whether the official has acted in excess of his authority, depends on how much discretion he is been given.

Unknown Speaker: So, you do not really need to argue what is the right construction of the statute with respect to 50% whether it refers to voting age people or whether it refers to registered voters.

You just could not care less because it is just an error of law or whatever it is, then the Attorney General?s judgment about the statute is final, is that right?

Mr. Howard E. Shapiro: That formula is specific enough that we think it comes within the excess of authority as I mentioned.

Unknown Speaker: But you just say it does not make any difference whether it is wrong or not.

Mr. Howard E. Shapiro: Answering the question generally and answering it specifically...

Unknown Speaker: Well, generally, I know I am not, -- I am asking you that question.

Mr. Howard E. Shapiro: Answering your specific questions, since the statute expressly says 50% of persons of citizens of voting age, the 50%...

Unknown Speaker: But you know it could be construed either way.

Mr. Howard E. Shapiro: Well, we could not use less than 50% without acting in excess of the statute, what I said before was that we can not use the coverage formula different than that specified...

Unknown Speaker: But you say the issue of the proper construction of that statute is just not open, in any review suit.

Your position is that no court has any business giving a judgment as to what the proper construction of that statute is.

Mr. Howard E. Shapiro: No, I think what I said was that if the Attorney General or the Bureau of the Census attempted to apply a formula different than that expressed in the language.

Unknown Speaker: No, no, no, no, he says, look I am applying the statute, here is my construction of the language and as long as he says that and goes that route, is not that the end of it?

Mr. Howard E. Shapiro: As long as it is within a reasonable scope, yes.

Unknown Speaker: 50% or something.

Mr. Howard E. Shapiro: Yeah, if he chooses 50% and

Unknown Speaker: Then it is not a reviewable.

If we use 25%, you would say it would be.

Mr. Howard E. Shapiro: Let me try and illustrate it in this way.

In so far as Texas? arguing that is a matter of law, the Director of the Census erred in relying upon Census data, now he had to determine how many citizens there were.

He had to find out from some source where that information came from, he did not use the immigration naturalization figures, he used his own 1970 decennial Census projections.

Now, to the extent that he relied on his own data and he made a calculation for alienage, that?s not reviewable.

Congress knew that there is a limitation on how you can determine who is an illegal alien and who there was not.

Now, in so far as Texas? contending that it is excluded from the act because more than 50% of its citizens of voting age were registered, less than 50% actually voted.

It is raising an issue of law as to the meaning of the statute, we think that that much is reviewable.

We also think its contentions are defeated by the plain legislative history because Attorney General John Katzenbach got up and actually said the words, ?such persons? in this statute means persons who actually voted.

The statute has been reenacted, it is been construed that way consistently.

Now, finally there is a claim about hearing.

The issues, the triggering determinations here involved with the Court called in South Carolina against Katzenbach, objective statistical determinations by the Census Bureau in a routine analysis of state statutes by the department of justice.

Issues of that kind do not require a hearing, in any event the hearing such as that is required, is provided after the fact in the bailout suit except to the extent that the triggering determination can not be reviewed, but the state can get out from under the statute, it can get out from under 4(a) in the bailout suit in connection with its contention that ?test or device? which it concedes in this case was not used for discriminatory purpose or effect.

Unknown Speaker: What is the limitation if any is there against bringing a bailout suit?

Mr. Howard E. Shapiro: There is not, the suit could be brought today, Your Honor.

Unknown Speaker: But, it had to be brought under District of Columbia.

Mr. Howard E. Shapiro: It had to be brought in the District Court for the District of Columbia as any suit under the voting challenging, a determination under the Voting Rights Act, must be Section 14(b) of the Voting Rights Act requires that.

Unknown Speaker: How about your limited review that you are talking about under 4(d), where they started out here with a single judge went to the Court of Appeals any reason why that has to be brought in the District of Columbia?

Mr. Howard E. Shapiro: It would have to -- the venue provision in 14(b) expressly says that any suit to enjoin or declare an action of an official under this act must be brought in the District Court for the District of Columbia.

Unknown Speaker: So, that is a broader provision in the bail than the...

Mr. Howard E. Shapiro: It is much broader, there are a number of bailout provisions in this act, there are the special bailout provisions under Section 4, there is the special provision for challenging Section 5 determinations, there is a special provision under Title III for more moderate language restrictions.

All of those suits as far as I can recall, must be brought to the District Court in the District of Columbia.

Indeed the fact that Congress in Section 14(b) mentions the possibility of a suit to enjoin the action of an official, indicates that it anticipated the possibility that there would be some areas where official action could be challenged, could be reviewed.

Sometimes, it is specified Three-Judge court as in a bailout suit or in a Section 5 suit.

Sometimes it did not.

Unknown Speaker: Mr. Shapiro, how many people do you know the Attorney General has reviewing submissions from the states or from all over the country?

Mr. Howard E. Shapiro: The voting -- I do not know the total number of people in the voting rights section.

Unknown Speaker: Must be substantial if they are 20 a week from Texas.

Mr. Howard E. Shapiro: Well, they are 20, Texas of course has been an unusual problem because Texas has 254 counties and an enormous number of election districts of one kind and another, water districts, voting districts, school districts, municipalities, despite the act also is retroactive in 1972.

So that there has been a large backlog, most of these changes have been what Attorney General Katzenbach anticipated rather performa change that do not affect significant rights, the ones that the Attorney General has been concerned about are those that change at large elections, some statewide procedures that are called for example for a?

Unknown Speaker: Why, is it another large section that does this?

Mr. Howard E. Shapiro: It is quite a large section and it is -- I can not?

Unknown Speaker: Since Texas was (Inaudible)

Mr. Howard E. Shapiro: I imagine, I assume it is been expanded, I suspect it is still overwhelmed, Your Honor.

Unknown Speaker: Enjoin there two other counties?

Mr. Howard E. Shapiro: Well, at least the administration or the act particularly Section 5 which we are not concerned within this case is from?

Unknown Speaker: This action was brought before or after the Attorney General ruled, effective to the subject of the act.

Mr. Howard E. Shapiro: The original complaint was filed before the Attorney General had made his determination, I think it was filed just after the Bureau of the Census had made its determination.

The Attorney General decided the case after the District Court ruled dismissing the complaint, the Court of Appeals noted that fact but concluded that since the issue was before it, there was no point in sending the case back for what would be a simple formal reconsideration.

So it addresses the question of the Attorney General?s.

Unknown Speaker: I am just interested in how Texas and the United States government can come to issue on what seems to be the merits of this case, Texas were brought under the statute, by virtue of a test or device that was repealed by Texas before the statute became effective.

Mr. Howard E. Shapiro: The language of the statute is whether the state maintained a ?test or device? on November 1, 1972.

Unknown Speaker: I understand that but it does not maintain that test or device now or as of the date the statute became effective and if Texas had instituted this suit the day after it received the letter from the Attorney General.

I understand you to say that it could have instituted this suit or another suit as a bailout action.

So, what you are saying perhaps is that Texas went to court too soon?

Mr. Howard E. Shapiro: Well, we think that the better remedy would have been for them to file a bailout suit, if they can demonstrate.

Unknown Speaker: But would it been a better remedy still for the Attorney General to have consider the requirements of 4(d), so it got so far saying for purposes of this section in the same section with 4(d).

Mr. Howard E. Shapiro: But the clear implication of 4(d) is that it will apply with respect through the determination for the purposes or with the effect of maintaining a discriminatory ?test or device?.

Now, the Attorney General does not make that inquiry.

Unknown Speaker: I am just wondering why it does not.

Mr. Howard E. Shapiro: Because the statute does not authorize them to, Section 4 (b) provides only that he will determine whether the ?test or device? was maintained.

Now, Texas may bring a bailout suit within the meaning of the act and it may point to its 1975 statute and say that shows that we are not maintaining a ?test or device? with the discriminatory purpose or effect and having done so and that any incidence of discrimination were sporadic as described in 4(d).

Unknown Speaker: Can I gather, I could do that this afternoon at District of Columbia?

Mr. Howard E. Shapiro: They could do that this afternoon and that would be an issue for District of Columbia, they have not brought such a suit because I think that the history of discrimination in Texas which led to the adoption of this act is such that they can not meet the standard in such a suit.

Although I am simply speculating, I may very well prevail such a suit.

Thank you, Your Honor.

Chief Justice Warren E. Burger: But they are free to try.

Mr. Kendall.

Rebuttal of David M. Kendall

Mr. David M. Kendall: Mr. Chief Justice, may it please the court.

First of all, I would like to point out that the difference between a bailout suit, what we are asking here is we are asserting that we are not covered and never were covered and how they construed the statute correctly, we would not cover now and there would be no?

Unknown Speaker: Mr. Kendall, that is what a bailout suit is for.

Mr. David M. Kendall: Court please, the bailout suit we would have the burden of proving that for ten years, this suit -- the test goes back to November 1972 and a bailout suit, if we filed it today, it will go back to 1967 and Texas was a great deal of difference.

But we feel that a bailout suit at this time will be premature when we consider the fact that we are not covered in the first one.

Unknown Speaker: But in the bailout suit, we get the benefit of 4(d).

Mr. David M. Kendall: We feel that we are entitled to the benefit of 4(d) now.

Unknown Speaker: I know, but in the bailout suit you would have the benefit.

Mr. David M. Kendall: We would have the benefit, as we feel we ought to have the benefit of it now as Mr. Justice Powell suggested.

I would like to answer if I may Mr. Justice Stewart?s questions earlier that I could not get thinking straight on.

According to their statistics, they took the Census Bureau figures for all citizens, all residents of the state.

Unknown Speaker: A voting age.

Mr. David M. Kendall: No, I am sorry, well, then they deducted from that the figure of those under 18, so they got a figure for all residents of the state of voting age and then according to their formula, they then deducted a 140,000 as being the number of aliens who were included in that figure and we submit that by any reasonable means, a 140,000 is ridiculous figure for Texas as a number of aliens who were resident in the state at that time.

Unknown Speaker: How many across the border every month, legal and the illegal?

Mr. David M. Kendall: It is in the hundreds of thousands, I am not certain of the figures.

Unknown Speaker: What better figures do you have?

Mr. David M. Kendall: I am sorry.

Unknown Speaker: What better figures do you have?

Mr. David M. Kendall: The Bureau of Naturalization, Immigration And Naturalization has figures available we feel, just recently of course.

Unknown Speaker: What are those figures?

Mr. David M. Kendall: That in 1972, there were two million six hundred and somewhat thousand illegal Mexican aliens, not legal but illegal Mexican aliens in the United States.

We submit?

Unknown Speaker: Well, what better figures do you have for Texas?

Mr. David M. Kendall: None specifically, we feel that it had Census made any effort to determine the number by consulting with immigration, naturalization service, it could have determined them.

Unknown Speaker: How does that help you or help us now?

Mr. David M. Kendall: We ask that the declaratory judgment which is our prayer that the Census Bureau in making this determination be required to use the best information available to determine the number of citizens of voting age in the state and that they did not do that in the case ought to be reminded to them to make that determination.

Whatever it may come out to be, they acknowledged, I think that they did not use immigration figures or anything else.

Used the answers to two questions on the Census form which are in best ambiance.

Contrary to what Mr. Shapiro said, we do not concede that we used English only for discriminatory purposes and we think that this vastly distinguishes this case from the Katzenbach case in South Carolina against Katzenbach, the court found that the proceedings were constitutional absence of a hearing because South Carolina conceded these are figures which were beyond dispute.

There was no argument about them and South Carolina was covered according to Mr. Chief Justice Warren?s opinion and that is not true here.

English -- we submit that statewide, in Texas as in every other state of the union.

English only ballots have been traditionally used and not as a discriminatory device and if you read the history set out by the Amicus curiae in their brief as to circumstances.

This was aimed against -- it was aimed against things that had nothing to do with English ballots.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.