WISE v. LIPSCOMB

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Argument of Joseph G. Werner

Chief Justice Warren E. Burger: We will hear arguments next in Wise v. Lipscomb.

Mr. Werner, I think you may proceed whenever you are ready.

Mr. Joseph G. Werner: Mr. Chief Justice, and may it please the Court.

I am Joseph Werner, counsel for petitioners in this case, the Mayor and City Council of the City of Dallas.

This is a civil rights case in which Negro voters of the City of Dallas challenge the all at-large system of electing the City Council in Dallas.

The District Court held at that that all at-large system was unconstitutional and that it denied Negro voters equal protection.

Justice Potter Stewart: Was that the Equal Protection Clause of the Fourteenth Amendment?

Mr. Joseph G. Werner: Yes, sir.

Justice Potter Stewart: Not the Fifteenth Amendment?

Mr. Joseph G. Werner: No, sir.

No consideration.

It was alleged that there was a violation of the Fifteenth Amendment

Justice Potter Stewart: But the grounds for the Court's decision was the equal protection clause of the Fourteenth Amendment.

Mr. Joseph G. Werner: Yes, sir.

Justice Potter Stewart: In so far as the Dallas electoral system, discriminated racially, is that it?

Mr. Joseph G. Werner: Yes, sir.

Justice Potter Stewart: There was no finding of any violations of Reynolds v. Sims in any of this --

Mr. Joseph G. Werner: No, sir, there is no question of Sims, since it was a purely at-large system in the beginning.

There is no question of a numerical imbalance.

It was a White versus register type dilution problem.

Justice Potter Stewart: It is not a Fifteenth Amendment decision?

Mr. Joseph G. Werner: No, sir.

Justice William H. Rehnquist: But there was no finding of any constitutional violation here, was there, in the at-large system?

Mr. Joseph G. Werner: Yes, sir.

We started out with all eleven members of the council elected at-large city wide.

The District Court found that that system was unconstitutional and that it denied equal protection to the Negro voters.

Justice Potter Stewart: And you are not really released and this case does not involve that issue, does it?

Mr. Joseph G. Werner: No, sir.

The issue --

Chief Justice Warren E. Burger: You have a totally new structure now.

Mr. Joseph G. Werner: Yes, sir.

Justice William H. Rehnquist: But they did not find a one man, one vote violation?

Mr. Joseph G. Werner: No sir.

As I said, because it was purely at-large in the beginning and there was no possibility of a numerical imbalance.

The District Court, after it held the previous system unconstitutional, gave the City of Dallas and the City Council an opportunity to come up with a plan to remedy this constitutional violation.

The Court held hearing subsequently in which it received this eight/three plan which was generated by the City Council and this plan involves the election of eight of the eleven council members from single member districts and the election of the remaining three members at-large, city wide.

Justice Lewis F. Powell: Mr. Werner?

Mr. Joseph G. Werner: Yes, sir.

Justice Lewis F. Powell: You referred the plan having been generated by the City Council would you tell us exactly how that happened step by step?

Mr. Joseph G. Werner: Yes, sir.

The process was, on the 17th of January, the Court held the original plan unconstitutional.

Three days later the City Council adopted a resolution which informed the Court that it was the intent of the council to pass an ordinance which would adopt this eight/three plan.

On February the 5th, the Court commenced hearings on this proposed eight/three plan and on two alternate plans submitted by the plaintiffs in the case.

On the 8th of February the district judge announced a preliminary finding that he considered the eight/three plan to be constitutional.

Two days later, after the conclusion of that hearing, the City Council adopted the Ordinance 14800 which promulgated as law, the eight/three plan.

Justice Lewis F. Powell: The City Council had not adopted the plan until after the Court approved the plan that was suggested?

Mr. Joseph G. Werner: That is correct, sir.

Justice Byron R. White: Except by a resolution?

Mr. Joseph G. Werner: Except by resolution.

Justice Byron R. White: Well, The City Council did it though, did it not?

Mr. Joseph G. Werner: Yes, sir.

Justice Byron R. White: It just was not in the form of an ordinance?

Mr. Joseph G. Werner: That is correct, sir.

Justice Lewis F. Powell: Is the resolution in the record?

Mr. Joseph G. Werner: Yes, sir.

Justice Byron R. White: Now, if that had been an ordinance, it might as well have been an ordinance?

Mr. Joseph G. Werner: Well, I think if it had been an ordinance, there would not be any question at this point.

Justice William H. Rehnquist: But why should there be any difference?

Mr. Joseph G. Werner: Well, I think in fairness to the respondents in this case, there is some ambiguity in the resolution.

I think it clearly indicates that what the legislative body favored was the eight/three plan.

However, the resolution --

Justice Byron R. White: I thought that is what the City Council was proposing?

Mr. Joseph G. Werner: Yes, sir.

Justice Byron R. White: That was clear enough.

Mr. Joseph G. Werner: Yes, sir.

Justice Lewis F. Powell: But let me ask you this question, did the City Council have any power or authority to approve a plan definitively?

Did it not have to be submitted to the voters?

Mr. Joseph G. Werner: Mr. Justice Powell, what we had here was a previous plan prescribed by a charter.

Now, obviously the charter, somewhat like our city constitution, cannot be amended except by vote of the people.

However, after the district judge --

Chief Justice Warren E. Burger: Or an order of the Court?

Mr. Joseph G. Werner: Yes, sir.

After the order of district court declaring it unconstitutional in that charter provision our position has ceased to exist and we have the authority as a Home Rule of city under the laws of Texas to evidence our actions either by resolution by ordinance or by vote of the people in the form of the charter.

Justice Byron R. White: And you might just as well have passed the ordinance when you passed the resolution, except you probably would rather know whether it was constitutional before you passed it as an ordinance?

Mr. Joseph G. Werner: Yes, sir.

Justice William J. Brennan: Is that the explanation why the council proceeded by resolution rather than ordinance at that time?

Mr. Joseph G. Werner: Mr. Justice Brennan, frankly, we do not know at this point.

We cannot recall and I assume, that that is what we were doing.

If we had the benefit of Chapman v. Meier, which was decided within a few days --

Justice Byron R. White: What if it had been an ordinance when the resolution was passed?

What if it had been done in the form of an ordinance?

The district court would have done exactly the same thing with respect to it?

Mr. Joseph G. Werner: Yes, sir, I think it would have and I think, if it had been passed as an ordinance a few days before the hearing then there would be no question that the city had promulgated this plan as law and then it was binding.

Justice Lewis F. Powell: Mr. Werner, the question I am now going to ask you is not addressed to merits in this case, but you filed an application for a stay with me last August, at least your name is on it, and it states the City Council reapportioned itself, enacted an ordinance and thereafter that the Court held hearing, now that is an error, I take it from what you now say?

Mr. Joseph G. Werner: Mr. Justice Powell, if I said that I have misled the Court and you, sir...

Justice Lewis F. Powell: I think, I repeated it in the Chambers opinion and I will say this in fairness, the district courts said pretty much the same thing, but I now understand from the facts that is not what happened.

I am not suggesting that it makes any difference that Mr. Justice White indicates, but I do suggest that the papers filed here, and while I am on this subject, I must say that the response to your application did not clarify it either.

Mr. Joseph G. Werner: Well, Mr. Justice Powell, what happened here was that on the 8th of February there was no order entered and the docket does not reflect any order, what happened was the judge made a preliminary finding that he considered the eight/three plan to be acceptable.

There was no written order of any description entered until March 25th about six weeks later and of course, the judgment in the case was not entered until May the 22nd which was about three and a half months later so we did not consider at that point that there had been any, at that time the ordinance was adopted, we did not consider that there had been any binding order of the court.

Justice Lewis F. Powell: I just want to clarify that.

I felt that I find these other papers in this case that both parties had failed adequately to inform me even this matter was before me last summer.

Mr. Joseph G. Werner: Yes, sir.

If we have misled you and the Court, we apologize for that, but I think the contention between the parties has always been the authority of the city to make a change to the election plan through the means of an ordinance rather than by a charter amendment and I do not think at that time any of the parties considered the timing of this ordinance to be critical and I do not think we considered that the ordinance was adopted after an order of the Court.

Chief Justice Warren E. Burger: Now you are confusing me.

You have spoken of it previously as a resolution not an ordinance.

Now, which was the source of the new eight/three plan?

A resolution or an ordinance?

Mr. Joseph G. Werner: Well, Mr. Chief Justice, they were both.

On the 20th of January before the remedy hearing, there was a resolution passed stating the intention of the council to adopt the eight/three plan.

Then the remedy hearing was held in the District Court and then two days after the conclusion of that hearing the ordinance was passed.

Chief Justice Warren E. Burger: And that was pursuant to the directives of the Court?

Mr. Joseph G. Werner: No, sir, there was no directive from the Court that we pass an ordinance.

Justice Byron R. White: But the Court addressed itself to the plans submitted by the city under the resolution and said it was constitutional?

Mr. Joseph G. Werner: Yes, sir.

Justice Byron R. White: Now, did it purport to treat that as a court plan and say, I approve this plan, or did they, you know, usually if the city passes an ordinance it is not a court plan, it is just something you either accept or reject.

Mr. Joseph G. Werner: Yes, sir.

Justice Byron R. White: What did the Court do with respect to the resolution?

Mr. Joseph G. Werner: Yes, sir, on February the 8th at the conclusion of the hearing, Judge Mahon, the District Judge, made a rather lengthy statement from the bench in which he said that he finds the eight/three plan, in his words, Passes constitutional muster, and he said he would later issue an opinion.

Justice Byron R. White: He has (Voice Overlap) that plan in a decree?

Mr. Joseph G. Werner: Yes, sir.

The first writing from the Court --

Justice Byron R. White: When you do not do that with an ordinance, that you uphold, you just say it is constitutional and you look to the ordinance to see what the provisions are.

Mr. Joseph G. Werner: I may have misunderstood your question, Mr. Justice White.

Justice Byron R. White: Did he incorporate the very terms of the plan in the decree?

Mr. Joseph G. Werner: No, sir, only by saying that he found that it was constitutional.

Justice Byron R. White: That it was constitutional?

Okay.

Chief Justice Warren E. Burger: Then when he approved the eight/three plan, it was simply a holding of the Court that it passed constitutional standards, but it is not part of a decree?

Mr. Joseph G. Werner: No, sir.

And there was no written order of any description entered until long after the ordinance was enacted.

Justice Lewis F. Powell: I think I have the mind of the District Court that Mr. Justice White may have in mind, it is on page B 16 in the petition at the end of the middle paragraph.

That is B 16.

This Court then gave the city of Dallas an opportunity to perform its duty to enact a constitutionally acceptable plan.

I find that it has met that duty in enacting the eight/three plan of electing council members.

Now in light of what I now understand, the Court, to say the least, used the word enacting somewhat loosely.

Justice Potter Stewart: The resolution expressing an intent.

Mr. Joseph G. Werner: Yes, sir, and then --

Justice Potter Stewart: He interpreted it as an official expression of the court.

Mr. Joseph G. Werner: Yes, sir.

Justice Potter Stewart: And then after this decree it was followed by an ordinance, and that in turn was followed by a charter amendment.

Mr. Joseph G. Werner: Yes, sir.

Justice Lewis F. Powell: That is my understanding,

Mr. Joseph G. Werner: Yes, sir, that is correct.

Justice John Paul Stevens: Mr. Werner, is that quite correct.

Was it not true that there was oral opinion first which was then followed by the ordinance, which was then followed what Mr. Justice Powell just read?

Mr. Joseph G. Werner: Mr. Justice Stevens, there was the resolution, then --

Justice John Paul Stevens: On January 20th.

Mr. Joseph G. Werner: Yes, sir.

Justice John Paul Stevens: And then on February 8th there was the remedy hearing?

Mr. Joseph G. Werner: Yes, sir.

Justice John Paul Stevens: In which he made an oral decision?

Mr. Joseph G. Werner: Yes, sir.

Justice John Paul Stevens: And then there was an ordinance, which is number 14800, which refers back to the oral decision, is that not right?

Mr. Joseph G. Werner: Yes, sir.

Justice John Paul Stevens: And then after the ordinance was passed, there was then the written decision that Mr. Justice Powell read from in March.

Unknown Speaker: Of March 25.

Mr. Joseph G. Werner: Yes, March 25th.

Unknown Speaker: That is where he used the word 'enacted'

Justice John Paul Stevens: So this is after the ordinance, whereas the oral decision was between the resolution and the ordinance?

Justice Thurgood Marshall: The enactment is the ordinance?

What is the word enactment there?

Mr. Joseph G. Werner: Well, I think the reference is to the ordinance, but I cannot be certain what he meant.

Justice Potter Stewart: By this time there was an ordinance?

Mr. Joseph G. Werner: Yes, sir.

Justice John Paul Stevens: But if I am not correct, Mr. Werner, at the time of the ordinance, there had already been a decision by the Court because the ordinance itself refers to the decision and I call you attention to page A 2 of the --

Mr. Joseph G. Werner: Yes sir, it refers to the oral decision and if I may, I will read from the transcript of the judge?s remarks, this is volume 11 of the original transcript, page 86, the Court says, ?This Court has accepting --

Unknown Speaker: Do we have it in print here at all?

Mr. Joseph G. Werner: No, sir, it is not reproduced in the appendix.

The district judge says, This Court is accepting the city plan of eight/three.

I am ordering that the election schedule for April of this year will proceed and elect the City Council for this year under the city plan of eight/three that has been presented to this Court.

At the same time, this Court will, I am going to enter a final order, I mean an adjustment in the opinion that is going to take me several days, and so forth.

So he indicated at that time that it seems to us that this was a tentative or preliminary decision on the matter and that he intended shortly thereafter to render his official decision on the case.

Now, Mr. Chief Justice and May it please the Court, it is our position that at the time that the Court first entered a written order in its first binding order that the City Council had already promulgated as law this eight/three plan which is in contention.

By the time the filing date arrived for the ensuing election, the plan had been promulgated as law, and by the time the judgment was finally entered in case, of course, the plan had been promulgated as law by the City Council.

We contend that because the council had promulgated as law this election plan with full authority under state law that this is not a court order plan and that the special circumstances rule of the East Carroll case should not apply.

We suggest instead that the rule of Burns v. Richardson applies and that the plan should be subject only to constitutional review.

Alternatively, we submit to the Court, that even if the East Carroll rule is applicable, that the Court of Appeals has erred in saying that the special circumstances present in the case which deal with the voting situation of Mexican-American voters can be considered only if there is a constitutional violation and we think that this is contrary to indications that we see in the opinion in the United U.S. Organizations v. Carrie case.

We do not think that special circumstances in a case like this depend on a prior showing of a constitutional violation and we think that in this case as in any equitable case or decree in equity that the Court should take into consideration the general public interest and should not enter a decree which will harm any segment of the population and we think that the findings of the District Court show that if and all single member district plan were put into effect that the Mexican-American voters would very definitely harmed by that decree.

The other issue in the case which supports the use of a mixed at-large and single member system is the finding of the District Court that it would be beneficial to the city to have general citywide interest represented on the council so as to provide factionalism among wards within the city and so that the City Council members would be exposed to a more statesmanlike view and that projects of interest to the city in general would not suffer from having been subjected to ward interest and the factionalism.

May it please the Court, we will reserve the rest of our time for rebuttal.

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

Mr. Johnston.

Argument of James A. Johnston

Mr. James A. Johnston: Mr. Chief Justice and may it please the Court.

It is the contention of respondents here today that this Court is dealing with the fact situation that is clearly within the ambit of Connor v. Johnson and East Carroll Parish v. Marshall.

We believe that the threshold issue is the standard of review that is to be applied by an appeals court and that that standard of review is determined by whether or not we are dealing with a court ordered plan or a legislated plan.

It is our contention that we have here is very clearly a court ordered plan, that is a plan that was ordered into existence by Federal Court exercising its equitable jurisdiction in an adversary proceeding.

Now, there is some ambiguity in the record as it is presented in the appendix and I would like to address myself to that at this time.

Your questionings already have indicated some elements of that ambiguity.

I would point out on page 147 of the appendix, that the Court itself stated that at the close of testimony on February 8th, 1975, I made findings which approved the city?s plan as constitutional.

Accordingly, I order that the eight/three plan as had been offered by the city be instituted in time for the April 1975 City Council election.

Let me point out that at this point that the City Council does not either by resolution or by ordinance have the power to change the election system in the city of Dallas.

Justice William H. Rehnquist: Mr. Johnston, does it have authority by resolution to empower its legal counsel to make representations to the District Court in a case like this?

Mr. James A. Johnston: It can and did empower its legal representatives to make representations to the Court and I have here and can supply to the court a copy of the accompanying letter that counsel for the city sent to the Court and that accompanying letter said, Pursuant to your order issued January 17th, I am enclosing a certified copy of the Dallas City Council resolution dated January 20.

I think what is clear here is that this resolution was offered pursuant to an order of the court to offer.

Justice William H. Rehnquist: Well, that sounds like we are going back to the forms of action to make this sort of distinction between a court saying we will impose a plan, but let us hear from the city as to what kind of a plan it wants and saying that that is subject to a different standard of scrutiny than for the court to say the present plan is unconstitutional let the city try again?

Mr. James A. Johnston: I think the distinction has to be made as to whether or not the city has the authority to try again under its own legislative scheme.

Justice William H. Rehnquist: Why is that for a Federal Court to decide?

Mr. James A. Johnston: We are talking about legislative power and the constitution of the State of Texas denies to the City Council the right to change its election scheme.

Justice Byron R. White: I do not see why we are talking about legislative power, we are trying to decide what standards the District Court is supposed to use and here this is an unambiguous expression of the lawmakers? views of the city of Dallas.

Mr. James A. Johnston: The courts had before it in the East Carroll the same kind of unambiguous statement of what the city would choose and the same in Wallace v. Brown.

Justice Byron R. White: I think it is a District Court that rejected the plan as unconstitutional and proceeded to draw up its own, might be something else again or if the city lawyer had just submitted the plan without any evidence that it was official policy of the city?

Mr. James A. Johnston: The case laws at this point would indicate that this Court has been looking as in East Carroll to the authority of the city to reorganize its legislation.

Justice Byron R. White: So you would say if the city had had power to change and represent this scheme overnight by an ordinance and if their first action in response to the Court's suggestion had to pass a new ordinance, the case would be different, you say?

Mr. James A. Johnston: The case would be different, I would still urge the same result because we are dealing with a plan that was offered up after the fact of dilution of black voting streams, that finding had already made by it the Trial Court.

We are not talking about a situation where in the course of litigation the city changes its election --

Justice Byron R. White: Well, That sounds to me like you are urging that the substitute plan offered was unconstitutional?

Mr. James A. Johnston: No, we are saying only at this point that it violates the federal common law of voting rights.

Justice Potter Stewart: You do not mean the common law of voting rights, do you?

You mean the appropriate equitable remedy for violation of the constitution?

Mr. James A. Johnston: That language is not my own, it appears in --

Justice Potter Stewart: I would adopt it if I were you, it is not --

You do not find it in our cases, do you?

Mr. James A. Johnston: No.

Justice Potter Stewart: So we are talking the precedents to which you refer and upon which you rely, have to do what is appropriate and an equitable remedy to repair a constitutional violation and the cases to which you refer all involve violations of the doctrine of Reynolds v. Sims not a single one of them that I know of involved a violation of such as was found here which we do not have before us, and therefore, we cannot assess as to even whether or not it was a constitutional violation, but there is no claim that there was a violation of the so called one person, one vote?

Mr. James A. Johnston: That is correct.

Justice Potter Stewart: And indeed all the cases to which you refer, none of them with which I am familiar and you are free to correct me, I may be wrong, I often am, have to do with at-large municipal elections of councilmen and there has been a presumption in this case that multi...member districts to a state legislature are somehow the exact equivalent of at-large elections in a municipality to the city government and they are quite two different animals.

Mr. James A. Johnston: Let me respond, if I may.

In East Carroll Parish v. Marshall, it began in the context of a Baker v. Carroll, one man, one vote case.

However, when the Court approved, the Parishes posed all at-large plan in 1971, Mr. Marshall intervened alleging that that plan diluted black voting strength in the parish.

The District Court rejected that finding, but it was preserved for appeal to the Court of Appeals and the Court of Appeals found in fact that there had been a dilution of black voting strength as alleged by Mr. Marshall and so when that case, East Carroll was before this Court, it was before this Court on that basis as well as on the one man, one vote analysis.

Justice Potter Stewart: It did involve a school district but it did not involve a Home Rule municipality, did it?

Mr. James A. Johnston: That is correct, Your Honor, but the fact that the City of Dallas is a Home Rule city should not overlook the fact that it is limited in its ability to devise its own election scheme.

It must submit that to --

Justice Potter Stewart: Yes, but I am talking about the constitutional test here and the remedy for asserted constitutional violation.

This violation was not a Reynolds v. Sims violation and we are not talking here about multi member districts to state legislatures.

Mr. James A. Johnston: That is correct, but it would seem to me that the federal remedy which we urge and which East Carroll urges which would require single member districts absent unusual circumstances it is particularly appropriate when there was a finding by the District Court as a result of an adversary proceeding that the at-large features of the City of Dallas election system diluted black minority voting strength.

For the city to come back with three at-large seats preserving that same feature found unconstitutional which seemed to me --

Justice Potter Stewart: It is assuredly that is a given in this case, but in assessing this plan do we not again have to look and see whether an at-large election is unconstitutional, is it not the least the threshold inquiry?

Mr. James A. Johnston: The District Court had already made findings --

Justice Potter Stewart: Oh, but District Court did, you are here now.

But you are here now and if there is nothing at all unconstitutional about at-large elections in a municipality of the governing body of the city, that is the end of this case, is it not?

Mr. James A. Johnston: If the Court wishes to address itself to that issue, it may do so --

Justice Potter Stewart: That is a threshold issue here.

Mr. James A. Johnston: No one else, certainly petitioners have not raised that issue and did not appeal in either court --

Justice Potter Stewart: They certainly raised it to the extent that they say that the at-large election of three members of the City Council is not unconstitutional?

Mr. James A. Johnston: That is correct and I would point out to the Court that Wallace v. House had dealt with a commissioner form of a government for a city and that is a case where the Court of Appeals for the Fifth Circuit as in this case had to address itself with that issue.

This Court remanded that case to the Fifth Circuit for a review in light of East Carroll Parish.

The circuit examined the entire record and examined the contentions very much like the cities here that at-large elections preserved a city wide view and rejected that as having established any kind of unusual circumstances.

Justice Potter Stewart: Has this Court ever held that an at-large election, within a jurisdiction is unconstitutional, be it city or state?

Mr. James A. Johnston: I think Wallace v. House tacitly reaches that point because it goes immediately to the remedy.

Justice William H. Rehnquist: But those were all based on one man, one vote violation, now you get to the remedial phase, were they not?

Mr. James A. Johnston: It is not my understanding that Wallace is based on one man, one vote.

My reflection on the record in that case indicates that there was an allegation of and a finding in the Fifth Circuit that there was dilution of --

Justice Byron R. White: That is not exactly one man, one vote, Whitcomb v. Chavez certainly rejects any notion that at-large voting in the city is per se or even semi per se, in doubt.

Mr. James A. Johnston: That is correct, but it does indicate that if the proof is there and White v. Regester goes farther than that and says that the proof was there in that circumstance then you have established a constitutional violation of equal protection.

Justice William H. Rehnquist: But one of the original complaints in Whitcomb v. Chavez was not the multi member district's violated the constitution, but that there was a violation of one man, one vote principle, was there not and then the question was whether the remedy was appropriate?

Mr. James A. Johnston: I cannot recall the record of it at that point.

Chief Justice Warren E. Burger: Let me back up on one thing that has left me somewhat confused.

Suppose Judge Mahon, the district judge, had after asking the city to make suggestions and the city made no suggestions, he had ordered the eight/three plan and they carried it out without a resolution, without an ordinance, simply carrying out the court's decree, what would be your view of what effect that would have on your posture now?

Mr. James A. Johnston: Well, our posture would be the same, that it was in fact a court ordered plan --

Chief Justice Warren E. Burger: For all practical purposes, it was a court ordered plan, was it not and the city was, simply as a matter of comity or for whatever reasons, passing an enactment that carried out what they knew the Court wanted and what the Court had said would pass constitutional muster?

Mr. James A. Johnston: And what the Court would require as a remedy.

We have no objections as such and did not object at that time to the city offering to the Court a plan.

There is political expertise to be had amongst members of the City Council and although their vote was not unanimous, their input was important and we did not object to it as such.

What we did object to, what we did appeal from was preserving those same at-large features that the Court had rejected in finding that there was dilution of black voting strength.

Now, it is not easy to prove that there has been dilution of black voting strength by means of at-large elections.

The proof is not simple, but it was met in this case.

Chief Justice Warren E. Burger: It is particularly difficult, is it not when you have an eight/three plan that is eight of them elected by districts and only three at-large, two at-large, really, because one of them is the mayor.

Mr. James A. Johnston: That is why I think that the remedy required by East Carroll is particularly appropriate in these kind of cases because it instructs the city or whoever is working with the Court in order to purpose a plan that they must do several things and one of those things is that they must establish that there are unusual circumstances which will justify the continuation of any at-large features in that plan.

It is particularly appropriate in this case.

Unknown Speaker: We would not suggest for a moment in the course of this case that whatever stage it was that the city, let us assume that the City Council of Dallas had the power in its charter to pass a new ordinance, it just simply passed a new ordinance and the old ordinance that the Court was considering just was not there anymore.

The ordinance would either go into effect, it would not going into effect unless it was enjoined and found unconstitutional, would it not?

Mr. James A. Johnston: Well, of course that is not the facts before us now, but --

Unknown Speaker: I know you say it is not the facts --

Mr. James A. Johnston: Well, one would have to and I presume, one would seek some sort of injunctive relief from --

Unknown Speaker: But then you would have to submit that ordinance to the Court and that ordinance would have to be found unconstitutional before it could be enjoined and I understand the Fifth Circuit in this case says that this ordinance is not unconstitutional?

Mr. James A. Johnston: The Fifth Circuit in this case never reached that issue and did not speak to that issue at all.

It said that that was one of things that --

Unknown Speaker: The District Court certainly did, did it not?

Mr. James A. Johnston: The District Court certainly did.

Let me point out --

Unknown Speaker: I think there was no unconstitutional impact whatsoever under this.

Mr. James A. Johnston: That is correct and let me point out the difficulties that anyone litigating a plan in a hurry where we have an election coming up in April and we were in February, we spent five years attempting to prove the unconstitutionality of the eleven at-large seats in city of Dallas.

Unknown Speaker: Exactly, and the city came along and passed a new ordinance.

Mr. James A. Johnston: Let me point out that the city and I think this is instructive.

We have supplied the Court with a copy of the ballot that was used in April of 1976, when the voters finally ratified that ordinance and finally amended the charter with regard to the change in election scheme and that ballot on page 16 of the document we supplied the Court which begins with the letter from Mr. Werner to an attorney in town, and it says, Charter chapter 3, section 1 and chapter 4 section 4, 6, and 8 of the charter of the city of Dallas be amended to provide for the compliance with the federal court order for election of eight members to the City Council from single member districts and three, including the mayor at-large.

We think that is instructive because it indicates what that the city believed as we believe that that election that took place in April of 1976 was a housekeeping measure merely to reflect the changes that were already made by court order in the city charter.

Justice John Paul Stevens: Mr. Johnston, was is it part of your submission in opposing the eight/three ordinance, that it was unconstitutional or did you merely argue that it was an inadequate remedy for the previously found constitutional violation?

Mr. James A. Johnston: Our argument, essentially, was that it was an inadequate remedy.

Justice John Paul Stevens: So that there really has never been an issue that anybody has had to decide as to whether the eight/three order was constitutional or unconstitutional, is that correct?

Mr. James A. Johnston: The judge presumed that if it were constitutional --

Justice John Paul Stevens: It would be an adequate remedy.

Mr. James A. Johnston: It would be inadequate remedy, although I may point out that the judge was troubled by Connor v. Johnson and throughout his opinion attempted to state unusual circumstances such as the Mexican-American situation which would justify the plan, but we were not anywhere equipped to argue the constitutionality of that plan because that kind of proof is very difficult to come by in the short space of time that we had.

Justice John Paul Stevens: If the fact or the conclusion of constitutionality were the end of the case, he would not have needed even to address the question of the Mexican-Americans, is that not correct?

Mr. James A. Johnston: That is correct.

Let me also point out that as the government has pointed out in its brief amicus that when this charter amendment was passed in April of 1976, Texas was at that time covered by the Voting Rights Act of 1965, something that it was not covered when the case was tried and the decision was rendered in 1975 and the city did not submit that case to the Attorney General for pre-clearance.

The inference is that the city believed that plan to be a court ordered plan which was not required to be submitted to the Attorney General under the Court's language in Connor v. Johnson.

Justice Byron R. White: District Court said that it gave the city a chance to come up with a plan and he said, "I find that it has met that duty in enacting the eight/three plan of electing council members."

Mr. James A. Johnston: The judges opinion is ambiguous in several respects.

In that way it is ambiguous because the Court later on points out on page 151 of the appendix that the members of the council cannot on their own modify the charter to alter the voting scheme.

Justice Byron R. White: Well, that may be so, but this seems to me rather unambiguous in saying that in his view, the plan wherever it came from passed constitutional muster.

Mr. James A. Johnston: Well, I think that it is clear in the Court's belief --

Justice Byron R. White: And do you not believe that the intervenors in that were urging that the plan was unconstitutional?

Mr. James A. Johnston: I think that is correct.

Justice Byron R. White: And so there was an issue before the judge about the constitutionality of the plan?

He just did not arrive at this conclusion sua sponte?

Mr. James A. Johnston: Well, I can only respond that the Court was, as were the parties, operating under intense time pressure --

Justice Byron R. White: Well, it may be, but the intervenors claimed it was unconstitutional and he said the plan is constitutional and did you appeal that?

When you went to the Fifth Circuit what did you say to them?

What did you raise there?

Mr. James A. Johnston: Well, the issue that we raised in the fifth circuit was the appropriateness of the remedy.

Justice Byron R. White: And did you say the plan was unconstitutional?

Mr. James A. Johnston: That appeal was some years ago, I --

Justice Byron R. White: Well, here is what the Fifth Circuit said, It cannot, however, be successfully maintained that the use of at-large voting to select three council members is itself constitutionally defective.

Mr. James A. Johnston: That is correct and there is plenty of language from this court indicating that at-large features in and off themselves must be attacked on the factual matrix in which they develop.

Justice Potter Stewart: That is multi member districts for a state legislative body?

Mr. James A. Johnston: Well, I would say that Wallace v. House and then applying it to the parish as in East Carroll indicates the court is willing to go further than that.

On this subject, let me conclude by saying that it is very difficult --

Justice William H. Rehnquist: You have referred counsel several times to Wallace v. House, that is not a case of this court, is it?

Mr. James A. Johnston: Yes, it is.

Justice Potter Stewart: We remanded it for consideration.

Mr. James A. Johnston: You remanded it for consideration in light of East Carroll.

Justice Potter Stewart: That is the extent of its --

Justice William H. Rehnquist: But it is not a decision on the merits by this court?

Mr. James A. Johnston: Well, to the extent that the Court of Appeals took it to mean that what was involved was the East Carroll issue which is a one issue case, essentially.

Justice William H. Rehnquist: Well, then it is certainly a decision of the Court of Appeals to that effect, but not a decision of this Court to that effect?

Mr. James A. Johnston: Well, I would only say, Mr. Justice Rehnquist, that the clear implication of the remand of Wallace v. House was that what the Court of Appeals must consider was the appropriateness of the remedy.

Unknown Speaker: (Inaudible)

Mr. James A. Johnston: Exactly, and of course, the Court of Appeals did do that and cert was denied by this Court.

Justice William H. Rehnquist: But do you think all of our remands are that precisely tailored, that we never grant, vacate and remand except having thought the thing through that carefully?

That is not a fair question to ask you.[Laughter]

Unknown Speaker: I think it is very fair.

Chief Justice Warren E. Burger: A remand is a question not an answer.

If we were sure of the application, we would summarily decide the case, but if not being clear, we send it back and ask the Court of Appeals to consider the relevance of East Carroll and others.

Mr. James A. Johnston: Well, the Court of Appeals did reconsider.

It asked itself the question of why the case was remanded rather than simply reversed or affirmed and concluded that the appropriateness of the remedy under East Carroll was a factual and that they could undertake it because they had a complete record before them and they undertook at that point to determine whether or not they were unusual circumstances, found that there were not in the face of claims much like the city of Dallas here, and as I --

Unknown Speaker: And then did it not come back here again?

Mr. James A. Johnston: It did and certiorari was denied, that is correct.

I find it difficult to distinguish this case from East Carroll and from Wallace v. House, all the cases that have gone through the Court of Appeals of the Fifth Circuit.

Each time there were plans submitted by the legislative body pursuant to court order each time that that legislative body lacked the authority to draw up a plan, it did not have the authority for one reason or another to implement the plan.

In East Carroll it was because of a challenge under Section 5 of the Voting Rights Act to the enabling legislation and in each case the plan was ordered into effect by the court.

Now, once you reach the threshold issue of whether or not the rule of East Carroll is going to be applied, the issue becomes whether or not there were unusual circumstances which would justify preservation of the at-large features.

The district court found such in the Mexican-American presence in the city of Dallas, a minority group containing 8-10% of the population of the city of Dallas.

The trial court's findings are confusing and contradictory and I think, ultimately not based on fact, and therefore, abuse of the discretion of the trial court.

The trial court found that there was no present delusion of Mexican-American voting strengths, although there might have been delusion in the past.

The Court of Appeals, accordingly indicated that because there was no present delusion their access was equal to that of the white majority, and therefore, there was no need to enhance the benefits by these three at-large seats.

But more importantly it's contention of the respondents that in order for there to be an unusual circumstance to support the Mexican-American issue raised by the district court there would have to be facts in the record to support a finding that single member districts would restrict the access of Mexican-American voters and there are no such findings in the record.

In fact, the district court could only conclude that Mexican-American voters might suffer restriction and access under the single member district plan.

The record that we presented to the court indicates that in a single member district plan such as the ones we proposed, a district, district number two would contain approximately one third of Mexican-American population and as such, Mexican-Americans practicing the politics of coalition as the Court of Appeals called it would have a far greater input into the election of members of the council than they would when they comprised only 8-10% of the population.

In fact, we presented to the court a witness, a Mexican-American by the name of Robert Madrano, who had run at-large for a school board seat and lost and then when they changed to an all single member district plan had won in a seat that was approximately evenly divided between Blacks, Mexican-American, and White voters, therefore demonstrating and the only factual demonstration in the record that Mexican-Americans could in fact win in single member district circumstances.

Chief Justice Warren E. Burger: Well, does that prove any more than what has been said in some opinions of the courts that people do not necessarily indulge always in block voting?

If they find a candidate attractive, they will vote for him as such, that is what indicates the reason for a half a dozen Negro mayors in the United States in large cities, does it not?

Mr. James A. Johnston: It does not, in fact, Mr. Chief Justice, it helps --

Chief Justice Warren E. Burger: For the man, not on a racial basis.

Mr. James A. Johnston: However, the record as developed in the trial of this cause from every expert witness indicates that in the city of Dallas, we have the unfortunate situation where block voting along racial lines is the rule and anything else is the exception.

Justice Thurgood Marshall: The record also shows that when the primary case was won on April 14th, in 1944, all of the Negroes in Dallas were the solid block and by election time they had split into four different groups, that is what the records show, four groups and that was about five months.

Mr. James A. Johnston: The record will also show in this case that since the institution of the eight/three plan ordered by the district court, there has not been a Mexican-American candidate elected to the City Council in the city of Dallas. Previously there had been one, but since this time, although they have run, I do not believe, I think the record will indicate that, none of them have won more than a third of the vote, and therefore, have failed in their efforts to be elected at-large.

The court itself acknowledged in its opinion that at-large voting might operate in part as a restriction of the access of American voters and we think there is simply no evidence to support them as unusual circumstances.

Finally, let me address briefly the issue of whether or not a city wide viewpoint can also be an unusual circumstance. I point to the Court's opinion in last time Connor v. Finch where this Court indicated that historic policy in multi member districts was not a sufficient reason to uphold multi member districts and in Wallace v. House itself the Court of Appeals originally attempted to justify a single at-large seat among five on grounds that they were avoiding ward parochialism, a contention subsequently rejected on remand.

Justice William H. Rehnquist: Mr. Johnston, was Connor v. Finch a City Council or a legislative apportion?

Mr. James A. Johnston: It was legislative apportion.

Justice William H. Rehnquist: Is there not a fair amount of expertise in city management and city government to the effect that strictly election by ward does tend to lead to pork barreling in a way that it does not on a state wide basis?

Mr. James A. Johnston: If there is such study, it was not in evidence in this case.

That was asserted by some politicians who had been elected at-large.

Chief Justice Warren E. Burger: Mr. Buscemi.

Argument of Peter Buscemi

Mr. Peter Buscemi: Mr. Chief Justice and may it please the Court.

I would like to begin by saying that I think that Mr. Justice Stewart is correct in suggesting that this Court has never found at-large municipal elections to be unconstitutional.

This Court in East Carroll Parish School Board v. Marshall, however, did find that the district court in ordering at-large elections, not only the East Carroll Parish School Board, but also for the parish jury which is the local legislative body had violated the remedial principles that this court has set out in numerous reapportionment cases, all of them beginning with one man, one vote violations.

Justice Potter Stewart: As this one did not.

Mr. Peter Buscemi: As this one did not, that is right.

In addition to the East Carroll case this Court has recognized in Duch v. Davis and in Dallas County, Alabama v. Reese that there is the possibility that at-large municipal elections, local elections, either county or city, may result in the minimization or the canceling out, to use the court's words, of the votes of particular, identifiable minority groups.

Justice Potter Stewart: Well, that is always true when you have an election by majority rule.

If municipality is 55% democratic, the votes of the republicans are going to be canceled out in at-large election.

Mr. Peter Buscemi: That is true and that is what the basis of the Courts holding was in Whitcomb v. Chaviz where the Court found that there was no restriction of access by Blacks to the political process, but the Blacks were primarily democrats, there were lots of republicans in Indiana and the republicans won a lot of elections and as the consequence of that there were very few Blacks that were elected to the state legislature from Marion County, Indiana, but that is not what the district court found in this case and I think the evidence supports the findings of the district court.

Justice Potter Stewart: Do you not think there is a difference, at least from the point of view of political structure and political science between a board of county commissioners or a county jury or whatever it may be called in various states, the school board on the same side on the one hand, and a small City Council elected at-large with the city manager system in a Home Rule municipality on the other?

Mr. Peter Buscemi: Yes, Mr. Justice Stewart, there may very well be a difference there and we are not contending and the respondents are not contending -

Justice Potter Stewart: And why should the same, if there is a difference, why should the same constitutional rule, at least why should it automatically be transferred from one to the other?

Mr. Peter Buscemi: Well, this case as it stands now it does not really involve the constitutional rule.

We are talking about a remedy that has been --

Justice Potter Stewart: Well, at least at the threshold, it involves whether at-large municipal elections are, if there is any defect in them at all, does it not?

Mr. Peter Buscemi: Well, that is true and the district court found that in the circumstances --

Justice Potter Stewart: The District Court found so.

Mr. Peter Buscemi: In Dallas there was a defect.

Justice Potter Stewart: Electing eleven of them at-large, now whether or not that is right or wrong is not now before us, as I understand it, but certainly that at the threshold there is before us the question of whether the election of three members of the council, including the mayor at-large is defective in any respect?

Mr. Peter Buscemi: That is right.

This Court need not find that the election of three council members at-large is unconstitutional --

Justice Potter Stewart: Well, if it is undesirable, as a matter of view of a remedy, is that not the threshold consideration?

Mr. Peter Buscemi: That is right and this Court has said, admittedly in one man, one vote cases that reapportionment should prefer single member districts and that --

Justice Potter Stewart: And never said so with respect to a city managed municipality, never, is it?

Mr. Peter Buscemi: Not in the context of at-large dilution.

Justice Potter Stewart: No, or in any context, has it?

Mr. Peter Buscemi: Well, in East Carroll for example --

Justice Potter Stewart: But that is not a city manager municipality, is it?

Mr. Peter Buscemi: No, it is a parish police jury.

Justice William H. Rehnquist: Your position is that even though we were to conclude if presented with the issue on the merits that an eleven man at-large City Council would not be unconstitutional, the district court simply should dismiss the complaint, in this case we should nevertheless affirm the Fifth Circuit which held that three at-large members were improper remedially?

Mr. Peter Buscemi: Well, I think that the only issue before the Court is whether the remedy was improper.

Now, as Mr. Justice Stewart suggests, if the court finds that at-large elections may be ordered as a remedy because the Court does not believe that there is any constitutional violation involved in all eleven being elected at-large then presumably, the Court would not need to affirm, but our suggestion here is that the violation that was found was indeed a violation and that the appropriate remedy for a Court ordered reapportionment plan involves single member districts.

Now, as the district court pointed out, Dallas is completely free to present the eight/three plan to the district court for the District of Columbia or to the Attorney General for pre-clearance under Section 58 of the Voting Rights Act and then, if the plan is pre-cleared, it will go into effect and any Court ordered remedy for the constitutional violation found will be over.

Chief Justice Warren E. Burger: After a District Court orders it, are you suggesting that it must be pre-cleared, that the judges order must be pre-cleared?

Mr. Peter Buscemi: No, not at all.

Chief Justice Warren E. Burger: Well, is it not the judges order?

Is this not the judges plan?

Mr. Peter Buscemi: Right now, this is a court ordered plan, that is right.

We are suggesting that the court --

Chief Justice Warren E. Burger: Then why is it subject to Section 5 then?

Mr. Peter Buscemi: We are saying that as a court ordered plan it is defective because it departs from the remedial principles announced by this court in earlier cases.

We are saying that if Dallas wishes to have this plan --

Chief Justice Warren E. Burger: Well, Dallas did not wish to have it, the court imposed it on them, Dallas did not want it at all?

Mr. Peter Buscemi: That is true, but Dallas now says that it wants the eight/three plan and if --

Chief Justice Warren E. Burger: Well, if it wants it, something as though after it is ordered by this Court, they might want it, but they did not want it in the first place, they have it because the court ordered it, have they not?

Mr. Peter Buscemi: That is true and indeed Dallas --

Chief Justice Warren E. Burger: Well then why does Section 6 get into the act?

Mr. Peter Buscemi: Well because if Dallas now wants the eight/three plan or if Dallas wants the seven/four plan or indeed, if Dallas wants two single member districts and nine members elected at-large, they are free to submit that plan to the district court in the District of Columbia.

They did not challenge the finding of unconstitutionality.

Unknown Speaker: Suppose we do not agree with you that it is a court order plan?

Suppose we view the resolution as such as a legislative plan?

Would it now require Section 5 clearance?

Mr. Peter Buscemi: Yes.

Unknown Speaker: It would, even though it became such before Texas became a covered jurisdiction?

Mr. Peter Buscemi: Yes.

Unknown Speaker: What authority is the reason for that?

Mr. Peter Buscemi: Section 5 provides that the city may not enact or seek to administer any plan not in effect on November 1, 1972.

Unknown Speaker: Then is it your submission that if this is a legislative and not a court ordered plan, nevertheless there has to be an affirmance because there has not been a pre-clearance?

Mr. Peter Buscemi: That is right?

Justice Byron R. White: You mean Texas, when it was covered should have gone back and submitted every, when was it covered, 1972?

Mr. Peter Buscemi: September 18, 1975.

Justice Byron R. White: 1975, so it should have gone back and canvassed all the changes that had ever been made since 1972 and submitted them all to the Attorney General?

Mr. Peter Buscemi: Yes, but indeed, no changes had been made since 1972.

The at-large elections --

Justice Potter Stewart: Anywhere in Texas?

Justice William H. Rehnquist: How can you know that in a state like Texas?

Mr. Peter Buscemi: Well, I am talking about in Dallas.

Justice William H. Rehnquist: Well, I am putting to you the question was Texas.

Chief Justice Warren E. Burger: Your proposition was the whole state.

Mr. Peter Buscemi: That is right, if there have been changes --

Unknown Speaker: Anywhere in Texas, locally, statewide, any change in the great state of Texas, you are supposed to bundle them up in a bushel basket and take them all to the Attorney General?

Mr. Peter Buscemi: The ones that were not in effect on November 1, 1972.

Unknown Speaker: And did they do that?

Mr. Peter Buscemi: Has all of Texas done it or did Dallas do it?

Unknown Speaker: Any of them.

Does the Attorney General attempted to find out if they ever did it or you just wait for complaints?

Mr. Peter Buscemi: Well, we wait for submissions.

Unknown Speaker: All right, very good.

Let me see, like in Perkins, I think the Court held even a change of location of ballots, of polling places required pre-clearance.

Mr. Peter Buscemi: That is right.

Unknown Speaker: Do you not suppose since 1972, there have been changes of polling places in the state of Texas?

Mr. Peter Buscemi: I am sure they have and I am sure many of those have not been submitted and I am sure that the Attorney General has not exercised his right under the statute of to bring a private enforcement suits.

Unknown Speaker: But perhaps elections based on the changes in the polling places may now be challenged because of failure to get a pre-clearance?

Mr. Peter Buscemi: Well, I do not think that the change in polling place itself would be --

Justice Byron R. White: Has there ever been a court decision that the Section 5 is retroactive like that or do you just read it on its face?

Mr. Peter Buscemi: Well, I think that when Section 5 was initially --

Justice Byron R. White: And it is possible to interpret it, I suppose, as meaning that any change hereafter that was not in effect in 1972?

Mr. Peter Buscemi: Well, any change hereafter by definition would not have been in effect on November 1, 1972.

Justice Byron R. White: Well, all right, but has there been some court decisions on this retroactivity?

Mr. Peter Buscemi: Well, I am not sure whether there were any.

When the Voting Rights Act was originally enacted, it was passed on August 6, 1975, but it referred to changes that had taken place since November 1, 1964.

Justice Byron R. White: Have there been some submissions from Texas since it was included based on the fact that this particular practice that is now being administered was instituted in 1973 and is still being administered and --

Mr. Peter Buscemi: Not that I know of.

Justice Byron R. White: So it has never even been construed by the Attorney General, until now?

Mr. Peter Buscemi: I think that if there had been such a submission, the Attorney General would have reviewed it under Section 5.

I just want to comment briefly on the special circumstances that were noted by the district court.

First of all those circumstances were noted in the context of an evaluation of the constitutionality of the eight/three plan.

The district court never said that it was talking about special circumstances or unusual situations that this Court has referred in speaking of departures from the single member district preference in court ordered remedies.

The district court did not make such a finding and indeed the special circumstances decided by the district court in connection with its assessment of the plan?s constitutionality are far different from the special circumstances noted by this Court on the only occasion when this Court approved multi-member districts in a court ordered plan and that was in Mahan v. Howell where it had a very special situation involving the Norfolk Naval Base.

Justice Lewis F. Powell: Do you think it makes any difference in this connection between a city such as Dallas which has had at-large voting since 1907 and the parish in Louisiana that had had at-large voting only since 1968?

Mr. Peter Buscemi: Well, I think that may very well make a difference with respect to whether at-large voting is useful in the city or whether it is constitutional.

I do not think it should make a difference on what a court ordered reapportionment plan should involve.

I think that this Court in Chapman v. Meier spoke about the long time use of at-large elections and suggested that --

Justice Lewis F. Powell: No, I think Chapman v. Meier of South Dakota --

Mr. Peter Buscemi: North Dakota.

Justice Lewis F. Powell: North Dakota, well, did not the court say that Mr. Justice Blackmun would correct me that there had been no tradition in --

Mr. Peter Buscemi: In the senate, in the North Dakota senate.

The court did comment, however, that there had been a tradition of at-large, that are multi member districts in the North Dakota House of Representatives.

Justice Lewis F. Powell: But not in the Senate.

Mr. Peter Buscemi: That is right.

Justice Lewis F. Powell: And the Court made a point of that?

Mr. Peter Buscemi: That is right.

Chief Justice Warren E. Burger: We will resume at 1 o'clock.

Mr. Peter Buscemi: Thank you.

Chief Justice Warren E. Burger: You have some rebuttal.

I think you have one minute remaining, Mr. Buscemi.

Mr. Peter Buscemi: Thank you, Mr. Chief Justice.

During luncheon recess I have obtained some information on the Court's question on the applications of the Voting Rights Act to the State of Texas and the changes that have occurred between November 1972 and September 1975.

The Attorney General has received hundreds of submissions involving such changes both in Texas itself and from localities within the state.

Some of those changes we are informed, did involve changes in polling place locations to answer Mr. Justice Brennan?s question.

Indeed, during the twelve months immediately following the application of the Voting Rights Act to Texas, more submissions were received from that one state alone.

Justice William J. Brennan: I do not doubt it.

Mr. Peter Buscemi: There are more of the other areas covered under the Act combined.

Chief Justice Warren E. Burger: Do you still contend that this case is subject to Section 5 submission?

Mr. Peter Buscemi: Well, the relevance of this point to this case is that if an ordinance, if the City Council could have under state law reapportioned itself by ordinance and if such an ordinance had been passed and if the eight/three plan was now effective by virtue of a City Council ordinance, then that ordinance would have to be submitted --

Unknown Speaker: Well, Mr. Buscenmi, why did you not answer the Chief Justice 'Yes'?

Merely from that fact that it was April 1976 after the 1975 coverage that the ordinance finally became legal when it was approved into referendum and did not become effective until then.

Then certainly why can you not answer the Chief Justice Of course the eight/three plan has to have pre-clearance under Section 5?

Mr. Peter Buscemi: Absolutely, that is the answer to the Chief Justice?s question to the extent that there is a legislatively enacted plan involved here, it is only through the charter amendment that was passed in April 1976 and that is what we argued in the second part --

Chief Justice Warren E. Burger: Was the city doing any more that rubber stamping what the court ordered?

Mr. Peter Buscemi: No the city was not, but in Connor v. Waller this Court held that an enacted plan that just reproduces the terms of court ordered plans is subject to pre-clearnace.

Chief Justice Warren E. Burger: In effect then, you are saying that the judges action is indirectly subject to review by the Attorney General?

Mr. Peter Buscemi: No, we are saying that if the state legislative body or the local legislative body decides to adopt what a court had ordered into effect then it is subject to pre-clearance and that is entirely different because there are different --

Chief Justice Warren E. Burger: Did the city have any choice about it?

Mr. Peter Buscemi: Absolutely, the city had no obligation whatever to enact the eight/three plan.

They could have enacted any plan they wanted and submitted it to the district court of District Columbia or the Attorney General for pre-clearance and there is currently pending in this Court a jurisdictional statement in number 77-1376 United States v. Georgia in which a three judge court did consider a submission of a change occurring between November 1964 and the effective date of the Voting Rights Act, August 1965 and saying that that change was covered, but saying that it had been pre-cleared.

The issue in the case is whether the Attorney General had pre-cleared.

Thank you.

Chief Justice Warren E. Burger: Mr. Werner, do you have anything further?

Rebuttal of Joseph G. Werner

Mr. Joseph G. Werner: Very briefly, Your Honor.

Unknown Speaker: Will you address this question of pre-clearance particularly in light of the referendum in April 1976 after Texas was brought under the Section?

Rebuttal of James A. Johnston

Mr. James A. Johnston: Yes, sir.

In response to the question by Mr. Justice Powell, I believe you asked does it make a difference that we have had at-large voting since 1907, I believe you asked that question of Mr. Johnston. Looking at Mr. Justice Blackmun?s opinion in the Chapman case, I get the feeling that this theory is based on a deference to state action and that what is really critical here is whether the federal courts are imposing some system of elections on a state which is contrary to established state policy.

Now, if that is what we are really dealing with here, I think it is clear that the use of at-large voting in Dallas city elections is a clearly established state policy both in the State of Texas and the City of Dallas and that there is no affront to the sovereignty of the State of Texas by virtue of this federal court order which either orders or approves the use of at-large voting.

We had places, what we are dealing with here, places 9, 10 and 11 on our City Council, those places 9, 10, and 11 were at-large places beginning with the Charter of 1968 was when we went from 9 to 11 members, so places 9, 10, and 11 remain absolutely unchanged since 1968.

Furthermore, as a direct response to your question, Mr. Justice Powell, we have had at-large voting generally since 1907 and that of course was instituted in the City of Dallas before we had Home Rule and it was done by the Act of the Texas Legislature in 1907, so we have had it continuously in various forms since 1907.

We have had it in our charter with respect to these exact three positions on the council since 1968 and I think there is absolutely no question that this at-large voting, and of course, it is the at-large voting that we are arguing about here today that is in contention, and clearly the federal court did not impose at-large voting contrary to established state policy, so I see no reason to invoke the East Carroll rule in this situation.

Now, Mr. Justice Brennan, with respect to the submission of the Charter Amendment under Section 5, I think, very clearly, the literal language of the statute requires pre-clearance.

Now, the only problem that we see with this is that as we all recognize, whether this is a court ordered plan or whether it is a court approved plan, a federal district judge has indicated his approval of the plan and so, if we come to the point where we submit the plan to the district court of the District of Columbia, I think we are submitting, in effect, the approval of the local district judge to the further approval of the district court of the District of Columbia.

Justice Potter Stewart: Or alternatively, the approval of the Attorney General in the --

Rebuttal of Joseph G. Werner

Mr. Joseph G. Werner: Yes, sir.

And the reason why I think this is significant is that I really do not think this is what the Congress had in mind.Of course, in the Sheffield case the Court construed the intent of the Congress in enacting Section 5 and I really do not think what the Congress meant to do was to have the district court of the District of Columbia or the Attorney General review something that had already been sanctioned by --

Justice Byron R. White: At the time the judge initially passed on the resolution, Texas was not subject to the Voting Rights Act?

Mr. Joseph G. Werner: No.

Justice Byron R. White: He was then free to pass on the constitutionality of the substitute, whereas today if they had been subject to Section 5, he would not have been free to address the constitutionality of this, if he considered this to be a legislative submission because that would first then have to go through, under Section 5?

Mr. Joseph G. Werner: Yes, sir, and I think there is a difference here between what the district court did.

Basically we had ourselves a Fourteenth Amendment lawsuit in the local district court and I think Section 5 clearance is more closely aligned with Fifteenth Amendment problems and so --

Justice William H. Rehnquist: Did any of the parties to this action in their, as opposed to amicus curiae raised the Voting Rights Act issue?

Mr. Joseph G. Werner: The respondents raised it in the Fifth Circuit, yes, sir.

Justice William H. Rehnquist: And what did the Fifth Circuit say?

Mr. Joseph G. Werner: They disregarded that.

They said nothing about it in their opinion.

Justice Byron R. White: They went off in another direction in his favor?

Mr. Joseph G. Werner: Yes sir.

Justice Lewis F. Powell: Well, tell me Mr. Werner, I guess, I gather from what you say, at least no decision has yet been made by Dallas whether or not to submit --

Mr. Joseph G. Werner: Well, until very recently, until Sheffield was decided we did not think that we had to submit anything, frankly and we did submit some polling place changes and things like that over the last couple of years because we were afraid if we were to pick that up if Sheffield were decided against us, we were afraid the administrative burden would just be too much so we went ahead and submitted those, but we did not submit the charter amendment for two reasons.

One was the question that the Court just settled in Sheffield and the other was that we were not sure about this question of whether it was the fact that the district court would indicate some approval about it, but to try to clarify my point about the effect of what the local district judge has done here, I do not think that just the fact that the local district judge has approved the plan on some points and possibly not on the substantive issues required by the Voting Rights Act, necessarily means that we do not have to submit it.

What troubles us in this respect is that we do not really think that that is what the Congress intended to do, I think what the Congress intended to do was to prevent evasions and regressions that some of the Southern states had resorted to in the wake of the court decision.

In other words, the court would invalidate a certain electoral device and then just as it dodged or an evasion then the local government body or the state would resort to some other change.

I think clearly, that is not what has happened here and so, although, as I readily concede, we are covered under the literal language of Section 5, I am not sure we are included in the Congressional intent.

Justice Byron R. White: Do you think the Section 5 issue is here at all?

It was not decided in the Court of Appeals, was it?

Mr. Joseph G. Werner: It was not treated in either of the courts below, Mr. Justice White.

Justice Byron R. White: And again, it could not have arisen in the district court?

Mr. Joseph G. Werner: No, sir.

Justice Potter Stewart: It is quite possible, I suppose, you are telling us, that a plan approved by court can be permissible as a plan that has been initiated by a legislative body, even though the initiation by the legislative body does not amount to legislation as such, and that even therefore, if it is not a court devised plan and can permissibly be something other than what a purely court devised plan could be, nonetheless, it is a court approved plan, and therefore, might immunize it from the necessity of submission under Section 5, if later, and adopted by way of a charter amendment which is a must?

Mr. Joseph G. Werner: No, sir, that is not exactly what I am saying.

What I am saying is that I can hypothesize a situation where a district court would approve a plan on grounds other than something that would satisfy the Voting Rights Act.

The district court might not really address itself to what I regard as issues more closely related to the Fifteenth Amendment and still, in a case like this, an approved plan, which was challenged only on Fourteenth Amendment grounds.

So what I am saying is, I do not think that the local district court necessarily covers all the issues that would be covered in a submission to the Attorney General or the D.C. District court.

Justice Byron R. White: Or whenever we have an effect, however, he does not have to in a court ordered plan, he does need to live up to Section 5?

Mr. Joseph G. Werner: Yes, sir, I understand that.

Justice Byron R. White: And my brother Stewart is saying that this is, whatever the chronology here, this qualifies for that rule.

This qualifies as a court rule rather than a legislative rule for purposes of Section 5?

Justice Potter Stewart: Even though it might not be a court ordered plan for the purposes of our previous decisions with respect to multi member district, since the initiative came a legislative body?

Justice Byron R. White: We did petition for you except Mr. Werner --

Justice Potter Stewart: Inviting except a very comfortable position for you.

Unknown Speaker: Except, Mr. Werner, I take it, you cannot have it both ways.

If this is a court ordered plan for the purposes of Section 5 then it ought to be a court ordered plan for purposes of --

Justice Potter Stewart: My question suggested that you could have it both ways.

Mr. Joseph G. Werner: That is why I am trying not to accept the invitation tendered by Justice Stewart.

Justice Thurgood Marshall: If we agree with you to reverse as the chapter 5, how does Section 5 come into that?

You want the district court, you want to erase the Court of Appeals and go back to district court?

Mr. Joseph G. Werner: Yes, sir.

Justice Thurgood Marshall: How does chapter 5 affect that?

Mr. Joseph G. Werner: Well, then we are in the position of being under the literal language of Section 5, but possibly not within the Congressional intent because we did not do this as an evasion --

Unknown Speaker: Well, I have to say, Mr. Werner, our cases have not given much weight to that Congressional intent as you limit it in Perkins and all the others.

We have to go back on an awful lot of things we said before.

Mr. Joseph G. Werner: Well, this is a situation which the court has not precisely addressed itself to.

It is a little bit different from Perkins and the other cases --

Chief Justice Warren E. Burger: We came close to it in the District of Columbia case, did we not?

Mr. Joseph G. Werner: I cannot answer that case.

Chief Justice Warren E. Burger: The case that was decided by the District of Columbia court?

Mr. Joseph G. Werner: Yes sir.

This would not be what we regard as a disaster to have to submit it to the Attorney General or the D.C. Court --

Justice Potter Stewart: And that surely is not going before us in this case.

It is surely not an issue in this case, is it?

Mr. Joseph G. Werner: As we just said, it was not raised below and it was --

Chief Justice Warren E. Burger: We should not decide it if the Court of Appeals has not had an opportunity to pass on it, should we?

Mr. Joseph G. Werner: I think at best it should go back to the district court to be considered.

Unknown Speaker: Mr. Werner, when is your next municipal election?

Mr. Joseph G. Werner: The next council election will be in April 1979.

We have council elections only in April of odd numbered years sometime, but at other times --

Unknown Speaker: But still some time, if you had to go through clearance.

Mr. Joseph G. Werner: Yes, sir, we have ample time for that.

Thank you very much.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.