PORT ARTHUR v. UNITED STATES

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ORAL ARGUMENT OF ROBERT Q. KEITH, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: We will hear arguments first this morning in City of Port Arthur against United States and others.

Mr. Keith.

Mr. Keith: Mr. Chief Justice and may it please the Court:

The expanded city of Port Arthur, Texas, constitutes a black population that amounts to 35 percent of the voting age population.

This expansion occurred through a popular election and consolidation with two adjoining suburban cities and the subsequent annexation of an unincorporated area to the east of Port Arthur.

Because of the expansion, the black population in the city by 1980 census standards changed from a 45 percent black total population to a 40 percent black total population.

The case was tried to the three-judge district court in the District of Columbia on an election plan that is not before the Court.

It was tried on what we know in this record as a 4-4-1 election plan.

The city was divided into four single-member districts of equal size and a representative was to be elected from each of those districts.

Then there was an at-large representative to be elected from each of those four districts.

So there were four single-member representatives and four at-large representatives.

We tried the case.

The court approved the expansion of the boundaries as being objectively verifiable, legitimate in purpose.

We lost the case on the question of the 4-4-1 plan, there's no question about it.

When the district court opinion was rendered, the court directed the city to detail the steps that it would take to address the issue.

The city went to the United States, to the Attorney General, and hammered out an agreed election plan.

The parties then through joint submission submitted that agreed election plan to the district court.

It is that agreed election plan that is before Your Honors today.

In this record we call that plan the 4-2-3 plan.

There are four single-member districts of equal size.

There are then... on the left side of town, the two single-member districts are combined, and on the east side of town the two single-member districts are combined into two additional single-member districts.

Thus we have six single-member districts.

That's four plus two.

Then there are three at-large representatives.

One is the mayor, who may reside anywhere in the community and be elected at large, and that is not in dispute.

There are two at-large representatives, one of whom must reside on the east and one of whom must reside on the west.

In the joint submission made by the Attorney General following a protracted trial, the parties stated that the agreed plan provides the minority population with representation reasonably equivalent to its strength in the expanded city, tracking verbatim Richmond.

The Attorney General and the city agreed to that.

Turning to Section 5 of the Act, there's no question the purpose was legitimate.

We were responding to a directive of the court, and we worked with the Attorney General.

There is no question that the effect of the change was legitimate, because, as the Attorney General stated in the agreed submission, the single-member districts in the city's plan would appear to provide the minority community with a fair opportunity to obtain representation reasonably equivalent to their political strength in the enlarged community, and cited Richmond.

The demographics of the single-member districts are such that one district has, in round terms, an 81 percent black population, a second district has a 61 percent black population.

Then those two are combined into a third single-member district that has a 71 percent black population.

These facts are agreed and undisputed.

There are three single-member districts that have a majority black population.

There are three single-member districts that have a largely white population.

But we went one step further in this case that is a little unusual.

The Attorney General and the parties, the city, agreed that in all probability representation would be provided equivalent to the strength of the minority community.

The court, the district court and a court in Texas, permitted the holding of elections subsequent to disapproving this 4-2-3 plan.

We conducted elections in the six single-member districts and in the mayor's race.

That's before Your Honors in the record.

In those elections which were conducted in those six single-member districts there were three black citizens elected from the majority black districts and there were three white citizens elected from the majority white districts, thus, if you will, proving categorically and undisputedly that the minority community received representation reasonably equivalent to its political strength in the expanded community.

The United States has argued very vigorously the facts of the case as if the original plan that we tried was before Your Honors.

The district court disapproved the 4-2-3 plan notwithstanding the representation and agreement of the Attorney General and the City of Port Arthur.

The district court decision was two to one.

The majority, in rejecting the plan, stated that it did not sufficiently neutralize the effects of expansion and dilution.

That was the conclusion.

There were no reasons given.

Mr. Phillips: Mr. Keith, may I inquire whether you think that the standard that we should use to measure, a fair reflection of political strength of the blacks in the expanded city, should be measured on the basis of voting age population figures or on general population figures?

Mr. Keith: Your Honor, in footnote 22 of the Rome decision the Court stated, respectfully, a preference for the voting age population.

And frequently both the district court and this Court in other cases have spoken of--

Mr. Phillips: We haven't really determined that, have we?

Mr. Keith: --I think that's fair.

Mr. Phillips: Is there anything in this record to show whether the general population statistics are a good indicator of future voting age population statistics?

Mr. Keith: The Attorney General's office and the city and the court have all extrapolated this 35 percent number.

We have all agreed that this is a legitimate number and a preferable number if we--

Mr. Phillips: You may have agreed to that, but is there anything in the record to tell us whether there is some correlation on future voting age population.

Mr. Keith: --No, Your Honor, there is not.

We have accepted it as the best number available to the Census Bureau and to the parties.

Mr. Phillips: Is it your position that we should focus entirely on voting age population figures?

Mr. Keith: Your Honor, it is my view that that is the best standard if it is a legitimate, demonstrable number.

Now, it is not always available.

Mr. Phillips: Does your argument rest on that premise?

Mr. Keith: Not at all, because if you take Justice Marshall's footnote in the Beer case and do the mathematics... and these become mathematical cases... our representation of 33 percent minority representation on the council and a 40 percent population, if you take that ratio, that's identical to that which he suggested was appropriate in the New Orleans... in the Beer case in New Orleans.

So we're entirely comfortable with the 40 percent population, or we're entirely comfortable, of course, with the 35 percent voting age population.

Either way, the position of the court is the same.

Now, Your Honors, in addition to the three majority black seats, there is a representative elected at-large from a district consisting of 71 percent black citizens.

And as Justice Blackmun said in concurrence in Mobile, the residency provides additional cross-sectional view, or the residency requirement provides additional cross-sectional view.

Furthermore, in addition to having these three safe seats, if you will, the majority community also has a full opportunity to participate in the election of the two at-large representatives and the mayor.

So the black community has an opportunity to participate in the election of the majority of the council.

Now--

Mr. Phillips: Refresh my recollection.

The figures are 40 percent population and 35 percent voting age.

Do we know the percentage of registered voters?

Mr. Keith: --No, sir, we do not.

That's not in the record.

The way Texas records are kept, it's really difficult.

Mr. Phillips: I see.

Mr. Keith: There's no question but what the City of Port Arthur met the Richmond standard, and unless that Richmond standard is to be be replaced by a new rule to govern this and future Section 5 cases, then the Court--

Mr. Phillips: Excuse me, Mr. Keith.

You said that since the 4-3-2 plan was offered there's been an election under it with seven, three black, three white, and the mayor.

Mr. Keith: --Yes, sir.

Mr. Phillips: What about the other two?

Mr. Keith: Those were the two at-large seats which were still at issue in this case.

Mr. Phillips: I see.

Mr. Keith: The district court said by way of suggestion, we will approve your plan if you would allow the at-large representatives by plurality.

And as a result, Your Honor, there was no election conducted in those two at-large seats.

Mr. Phillips: And is that the only issue that we have up here, is the district court's insistence on the plurality?

Mr. Keith: The real issue, Your Honor, is whether or not the legislative plan meets the test of Richmond.

The district court's suggestion is really not before the Court.

The question is whether or not the agreed plan submitted by the City of Port Arthur and approved by the Attorney General meets the Richmond test.

Mr. Phillips: And what did the district court rule?

Mr. Keith: The district court ruled two to one that it did not and that we should go one more step.

Mr. Phillips: But only because.

Only because--

Mr. Keith: Only because--

Mr. Phillips: --of the plurality.

Mr. Keith: --It didn't say because of the plurality.

It said because we did not sufficiently neutralize the dilution.

Mr. Phillips: Yes, but they said if you didn't have this head to head majority vote business you would have neutralized it.

Mr. Keith: That is correct, Your Honor.

And the United States then says that because of your history of polarized voting and because of the past discrimination which they argue, thus these past acts go to infect those two at-large seats with the majority vote.

Mr. Phillips: Well, is there any issue about purpose in this plan, this particular plan?

Mr. Keith: No, Your Honor.

It was presented in concert with the Attorney General and responsive to the court.

Nobody suggested there's an impermissible purpose.

We thought the case had been settled when we received this rejection.

Mr. Phillips: So in terms of the Voting Rights Act, what the court said is that this will have an effect.

Mr. Keith: That is correct.

Mr. Phillips: This will have an effect of diluting minority voting rights.

Mr. Keith: Yes, sir, by reducing the black population from 45 to 40 percent there was dilution, because there was a history of polarized voting and because there was, by the court's findings, a discriminatory effect in the past at-large elections.

Mr. Phillips: Well, prior plans they found had been purposefully discriminatory.

Mr. Keith: That's correct, Your Honor.

Mr. Phillips: I mean, the case you lost, was lost on purpose, wasn't it?

Mr. Keith: On purpose and effect.

Mr. Phillips: Yes, but they never would have needed to have gotten to effect.

Mr. Keith: That's correct.

But most of the opinion was related to effect.

Now, the question is, the district court tried to look at each of these individual parts and analyze them, and the United States tries to have the Court focus on each individual part and determine whether or not it, standing alone, passes muster.

In fact, as this Court has insisted and as other courts dealing with this have done, you look at the entire plan to determine whether or not it has the effect.

Mr. Phillips: Mr. Keith, do I understand that if you had accepted the plurality suggested by the district court, the district court would have approved the 4-3-2 plan?

Mr. Keith: Yes, sir.

Mr. Phillips: And you refused to accept the plurality suggestion?

Mr. Keith: Yes, sir.

It was the legislative judgment that the plurality was unacceptable.

Your Honor, since that time and pursuant to the authority of the district court... it's outside this record, but it is entirely verifiable... that plurality issue was presented to a vote in the city and was soundly defeated, three and a half to one.

But that was not true at the time the city declined to accept it.

Mr. Phillips: Rejected by whom, the voters at large?

Mr. Keith: Yes, sir.

Now, this is very clearly a legislative plan.

As late as April of this year, in the Upham v. Seman case out of Texas, Your Honors reiterated the deference that is given to the legislative plan, the policy reasons that support it, the fact that neither the Congress nor the Court is seeking to intrude into the affairs of local government.

The Attorney General approved it after, by this record, 12 settlement conferences prior to trial, detailed depositions, a lengthy trial, briefs.

The Attorney General is the constituted champion of a minority voter, as was said in the Carey case.

The Attorney General even in this proceeding has acknowledged that the court could properly have approved the 4-2-3 plan.

It is the position of the city that the Richmond standard is a clear, direct, legitimately predictable standard that both the courts and parties across the country are able to deal with.

Once that standard is met, the statute is complied with and the district court is obligated under this Court's decisions to approve it.

Mr. Phillips: May I ask you a question of procedure?

I wonder why you and your adversaries in the litigation didn't simply dismiss the lawsuit, voluntarily go in and ask this case be dismissed.

Mr. Keith: We considered that, Your Honor.

But we had all invoked the jurisdiction of the court.

Mr. Phillips: Does that not imply, then, that the court had some power to approve or disapprove of the appropriate remedy?

Mr. Keith: Your Honor, the court had the jurisdiction over the parties and the subject matter, there's no question of that.

Mr. Phillips: Do you think it was required as a matter of law... they had absolutely no discretion in the matter... to accept anything that was acceptable to the Attorney General?

Mr. Keith: So long as there were objectively verifiable facts and there was no collusion or nothing impermissible, and the facts undisputedly met the test.

And that is true in this case.

This is not a Rule 52, where you've got clearly erroneous or abuse of discretion.

As a matter of undisputed facts, the governing facts are established; it becomes purely a question of law.

Mr. Phillips: Well, you did have intervenors below, did you not?

Mr. Keith: Yes, sir, we did.

We had two... we had four persons who intervened on behalf of the Defendant.

Two of them approved the 4-2-3 plan, two of them objected to the 4-2-3.

Mr. Phillips: Well, doesn't the fact that intervenors are permitted in a proceeding like this suggest that they may be able to urge arguments that may not appeal to the Government and still might commend themselves to the court?

Mr. Keith: Yes, sir, that's correct.

But that does not mean that their arguments reach the level of a proposition as a matter of law.

Mr. Phillips: No, no.

If the Attorney General... you didn't have to deal with the Attorney General to go to court.

Mr. Keith: That's correct, Your Honor.

Mr. Phillips: You didn't have to deal with him at all.

And if the Attorney General hadn't been in this suit or hadn't been participating in this thing at all, and you lost the first lawsuit and then you proposed another plan, wouldn't the court have the... certainly it would have the authority to disapprove your 4-4-3... or your latest plan, wouldn't it?

Mr. Keith: No question of that, Your Honor.

Mr. Phillips: Well, you think it loses its authority just because the Attorney General comes in and proposes it?

Mr. Keith: No, sir, we do not.

Mr. Phillips: Especially if the Attorney General still keeps a string on it and says, we've still got worries about the plan.

Mr. Keith: But Your Honor, where the court lost its authority was where the facts become undisputed and when undisputedly the plan meets the test of Richmond.

The Attorney General also, Your Honor, is more than just the ordinary litigant in a voting rights proceeding.

He under the Act has a standing essentially equivalent to that of a court in the administration of this Act.

Mr. Phillips: Mr. Keith, let's assume for the moment that the Court were to disagree with you that the agreement of the Attorney General required the court to prove the plan.

Let's disregard that argument for a moment.

Then is it still your position that the court as a matter of law under the City of Richmond had to approve the plan that was submitted?

Mr. Keith: Yes, Your Honor.

And I do not say the court--

Mr. Phillips: And why?

Do you think the court had the right to look into discriminatory purpose?

Did the court have the right to look beyond the effect of the plan, into purpose?

Mr. Keith: --Yes, Your Honor, it did.

But there's no suggestion of impermissible purpose here, and this case should not be reversed because the Attorney General agreed.

This case should be reversed because the plan unequivocally meets a clear, direct standard established by this Court.

Mr. Phillips: And if all we're looking at is that, then do we apply the clearly erroneous standard?

Mr. Keith: No, Your Honor, because the facts are fixed as a matter of law and then the question of whether it does or does not becomes a question of law and not a question of fact or discretion.

It is a clear, predictable standard and the parties have met it.

The Attorney General's agreement is merely further evidence of that.

Mr. Phillips: Has there been a trial on the question whether the 4-2-3 plan satisfies the Richmond standard?

Mr. Keith: No, Your Honor, there has not.

Mr. Phillips: And is it at least not theoretically possible that there was some invidious purpose in the adoption of this plan rather than some possible alternative?

Mr. Keith: There is, but there's no suggestion of it at any time or place.

Mr. Phillips: But I'm just wondering, how can you be so positive that it does... I mean, I don't see any reason it doesn't meet the plan.

But how can we say that it's been settled as a matter of law that it meets the standards of Richmond?

Mr. Keith: Well, Your Honor--

Mr. Phillips: Just because the Attorney General didn't object, is what you're saying.

Mr. Keith: --No, sir.

And the court made no finding and no suggestion that the purpose was impermissible.

Mr. Phillips: Well, let me put it this way.

Supposing, instead of the Attorney General agreeing to the plan, he said, I would agree to it if you impose the plurality requirement, and you had said, well, we don't have to do that.

You'd make the same argument you make today, wouldn't you?

Mr. Keith: That is correct, yes, sir.

Mr. Phillips: So that the Attorney General's consent is really irrelevant to the issue before us.

Mr. Keith: It is persuasive.

It is not controlling.

Mr. Phillips: But the controlling fact again is that the record leaves no room for doubt on the question whether it satisfies the Richmond standard.

That's your point.

Mr. Keith: That is correct, yes, Your Honor.

May I reserve the remainder of my time, please.

Chief Justice Burger: Mr. Phillips.

ORAL ARGUMENT OF CARTER G. PHILLIPS, ESQ. ON BEHALF OF APPELLEES

Mr. Phillips: Mr. Chief Justice, may it please the Court:

The issue in this case involving Section 5 of the Voting Rights Act is whether the district court erred in refusing to preclear the City of Port Arthur's post-annexation electoral plan so long as the city insisted on including a majority vote requirement for the election at large of two members of the city council.

In the view of the Government, the issue is an exceedingly narrow one.

There is no dispute that the annexations of Lakeview, Pear Ridge, and Sabine Pass are subject to the requirements of Section 5 of the Voting Rights Act.

There is no dispute that the effect of those annexations is to significantly dilute the minority voting strength in the City of Port Arthur, in the expanded City of Port Arthur.

Indeed, there is some reason to suspect, from the findings of the district court with regard to the 4-4-1 plan, that the motivation, at least in part, for the expansion of the City of Port Arthur was to assure that the white majority retained its status as the majority for the foreseeable future.

Thus we are all in agreement that the basic test to be satisfied is that announced by the Court in the City of Richmond decision.

Mr. Phillips: Mr. Phillips, why doesn't the Beer case control this case?

Mr. Phillips: Well, largely because the Beer case deals with a situation where there's simply a change in an electoral practice dealing with a pre-existing city and that city remains as it is, whereas--

Mr. Phillips: There's nothing in Beer that limits it to that or says that it isn't applicable to annexations.

Mr. Phillips: --No, clearly not.

But this Court's decision in City of Richmond seems to indicate, or at least imply, and again in the City of Rome, that the proper test is not an analysis of retrogression, but rather the dilution of the minority vote comes from the annexation in the first instance.

And the requirement is that the minority community be adequately represented in the post-annexation city.

Mr. Phillips: City of Richmond antedated Beer, did it not?

Mr. Phillips: Yes, sir.

In the city's view, this Court's decision in City of Richmond imposes a bright-line test measuring the propriety of the city's post-annexation electoral plan.

In our view, that simply does not square with the language of the test.

The test looks for whether or not there is fair or reasonable representation.

But its terms, it is not a bright-line test.

It requires the exercise of judgment by the tryer of fact and by the court in deciding whether or not a particular plan satisfies the Voting Rights Act.

Indeed, given the variable types of plans that are available and subject to review under City of Richmond, it is inconceivable that there can be any kind of a bright-line test.

In this case we have a mixed at-large and single member district plan.

In City of Richmond there was a single member district plan.

City of Rome involved an all at-large plan.

It's just impossible to come up with some test that will adequately resolve all of those different situations.

Mr. Phillips: Mr. Phillips--

Mr. Phillips: Yes, Your Honor.

Mr. Phillips: --have you taken into consideration, there is a difference between the way land is annexed in Texas and the way land is annexed in Virginia?

They're entirely different, aren't they?

The question is, does that have any bearing on this?

Mr. Phillips: No, Your Honor, I don't believe so.

Both sides in this case complain that the other has failed to look at the plan in its entirety.

Our submission is that the city is the party with tunnel vision.

Specifically, the city looks at the single member district portions of this plan, finds that they will provide a certain amount of representation, and then completely ignores the rest of the plan.

Our position is that admittedly the single member district aspects of this plan go a long way toward satisfying the Voting Rights Act.

Mr. Phillips: Is this a late insight on the behalf of the Attorney General?

If the court had just approved the plan as submitted, would you have been up here?

Mr. Phillips: No, Your Honor, we would not have been up here under those circumstances.

Our position is that it was a close question.

I think our joint submission to the district court makes it clear we believe it is a close question.

The district court viewed the facts somewhat differently from the way we viewed the facts and drew different inferences from them and concluded on balance that the 4-2-3 plan with the majority vote requirement could not guarantee adequate representation to the minority.

Mr. Phillips: And now you agree with that?

Mr. Phillips: And that judgment we believe is entitled to respect.

Mr. Phillips: Well, you seem to be agreeing with it; not just entitled to respect.

You think it is now right.

Mr. Phillips: Well, because it is based on a set of findings that we believe are not clearly erroneous, and once you accept those findings, viewed through the prism of the district court's July 14th order, it seems to me there is no other conclusion that's available at this point.

Specifically, there are four facts that we regard, that the district court found, that we think control this case:

First, the City of Port Arthur faces severe racial block voting.

The statistic that's used in this case is one that demonstrates statistically significant polarization at the.5 or.6 level,.5 or.6.

Elections just prior to the annexation in this case involved racial polarization at.8 and above.

Accordingly, it is clear that this is a badly divided city on the basis of race.

An even more important finding in our view is the district court's conclusions that with at-large seats and a majority vote election the black community has no opportunity to influence any elections at large.

That is, even white versus white candidates, the black community is unable... has no more than a mere theoretical possibility of exercising a swing vote influence.

Accordingly, the ultimate effect of this plan as viewed from the district court's perspective must be to discard the black community or eliminate the black community's influence over six of the nine seats of the city council.

Third, the district court found that in the past when there is a majority white population controlling the politics in the City of Port Arthur, there is a pervasive and systematic disregard for the black community, a systematic disregard that we submit, the court would conclude, will continue into the future unless this plan is modified.

Finally--

Mr. Phillips: Mr. Phillips, do we know what the district court based its decision on?

Because it isn't entirely clear.

It almost reads as though the district court thought it was reviewing the expansion, when it refers to neutralizing the expansion.

And theoretically, you would determine separately whether the expansion were something that could be approved, and then if that can be approved you would determine whether the voting plan could be approved.

Is there some confusion there?

Mr. Phillips: --Well, I don't think so.

I agree that the order is not artfully drafted, but it seems to me that the district court made clear its understanding of the two strands of analysis required by the City of Richmond test.

And it had already approved the annexation, and all that was left was the adequacy of the voting plan adopted for the expanded city.

Mr. Phillips: So you think notwithstanding the language that the court used, that there was no confusion about what the court was doing?

Mr. Phillips: I don't perceive that any of the litigants disagree with regard to what the effect of the district court's order was and what it was intended to be.

Mr. Phillips: May I ask you also whether it's your position that the Court should look only at voting age population figures?

Mr. Phillips: No, Your Honor.

In our brief we argue that we think that both data have a legitimate role to inform the judgment of the Court.

Admittedly, voting age population suggests the immediate effect of a change, but it does seem to us that raw population--

Mr. Phillips: Do you think it's error if the Court looks only at voting age population figures?

Would that be error?

Mr. Phillips: --If it's error?

Mr. Phillips: Wrong?

Could a decision stand that focuses only on that?

Mr. Phillips: Well, the purpose of the Voting Rights Act and the approval of these changes is to determine their future effect, and I would think it would raise serious question if you completely disregarded what might be the potential effect.

Assuming the voting age population is just significantly different from the overall population, it might create a problem.

In a case like this, where the difference is not that significant, it would be hard to imagine that it would be very difficult.

The fourth finding that we think is significant from the district court's June 12th opinion is its conclusion that residency districts do not offer the black community any greater influence over no residency districts, because of the pockets of white influence in the black districts and accordingly the availability of white candidates, who in at-large elections will continue to maintain the domination of the white community in Port Arthur.

Based on these findings, we believe that the district court could conclude, legitimately conclude in the exercise of its equitable judgment, that this plan does not satisfy the Voting Rights Act, and that a single minor modification would be required, should be required in order to assure that blacks will have influence in the future in these elections.

That modification is the elimination of the majority vote requirement.

That elimination in no way offers the black community the opportunity to control additional seats.

It merely grants them the right to have influence over the elected officials from those districts in the at-large elections, and that we think is an appropriate exercise.

Mr. Phillips: Were you suggesting that in an election at-large that a city with a third of its voters black, that they would have no influence, that neither candidate would pay any attention to obtaining their vote?

Mr. Phillips: The finding of fact by the district court in its June 12 opinion is exactly to that effect, that in only one or two elections in the 14 years prior to 1977 could it find any evidence to indicate that there might have been a swing vote influence.

Mr. Phillips: Is that typical across the South today?

Mr. Phillips: Well, I would hope not, Your Honor.

I'm not an expert on that and I would guess that it's not always the case.

Certainly, City of Rome, the district court found that in that community blacks had exercised significant influence.

That's part of the reason why we believe our submission in this case is a very narrow one.

We think the City of Port Arthur is an unusual situation, based on the findings of the district court.

And that's why we have to look beyond simply whether rough proportional representation that's provided from the three single member districts adequately protects the interests of the minority community in the expanded city.

Mr. Phillips: Is it the position of the Government that a majority vote is never appropriate?

Mr. Phillips: No, Your Honor, not at all.

Certainly in a situation--

Mr. Phillips: It's the general rule across the United States, isn't it?

Mr. Phillips: --Yes, Your Honor, I think it is.

And the city has argued in its reply brief that our position is a per se rejection of that view.

Mr. Phillips: And may I get clear, is purpose still in this case at this level?

Mr. Phillips: Not in terms of the submission to this Court, no, Your Honor.

Mr. Phillips: So we consider only the effect?

Mr. Phillips: Yes, Your Honor.

I don't believe that the district court's opinion or order can fairly be read to cast any doubt on the purpose of the plan as adopted.

Mr. Phillips: If we reverse, if we reversed the district court on its insistence on the plurality, would there be anything left of the case?

Mr. Phillips: Well, I don't think the United States' position is that this is infected with an invidious purpose, so I suspect there would be nothing left to litigate, although the intervenors might take a view different from that at this point.

Mr. Phillips: At least, the district court didn't expressly negative any purpose--

Mr. Phillips: No, the district court submission... the district court's order seems to indicate rather clearly that if the city were prepared to remove this one objectionable feature that seems to be directly related to the effect of this plan, that it would be satisfactory.

The overall arrangement is itself not in--

Mr. Phillips: --Does that implicitly negative any invidious purpose?

Mr. Phillips: --Well, not actually, not as a matter of logic I don't think, Your Honor.

Our position is that the case, the facts of this case are not significantly different, and if anything are easily controlled by this Court's prior decisions in both City of Richmond and City of Rome.

City of Richmond, the black community was entitled on the basis of the single member districts to have essentially four representatives and a serious swing vote influence in a fifth district out of nine, and that for a population of approximately 41 percent.

City of Rome involved an all at-large plurality vote system that was characterized by the district court itself as an essentially fair one, and yet the district court felt compelled to remove the single residency requirement in that case, and this Court upheld that exercise of judgment.

We believe that these facts suggest a much worse situation for the black community and that the district court's judgment in eliminating the largest impediment to the opportunity to influence the city council is a reasonable judgment by the district court and should be affirmed.

If there are no further questions--

Mr. Phillips: May I ask you one question which perhaps isn't directly before us, but I'm curious about.

The district court's opinion indicated that the original annexation was infected with an invidious purpose, as I recall the opinion.

And nevertheless, it found that there were subsequent legitimate reasons for the annexation that overcome the original invidious purpose.

Mr. Phillips: --Yes, Your Honor.

Mr. Phillips: Do you think that holding is consistent with this Court's holding in Rogers against Lucas last year?

Mr. Phillips: It is... I hadn't really thought of that.

It is clearly consistent with this Court's holding in City of Richmond.

Mr. Phillips: Do you think it's consistent with the Voting Rights Act to have a mixed motive for a change?

Mr. Phillips: Yes, Your Honor, because the problem is that annexations create unusual problems and therefore you sort of have to examine them as a unique situation, I think.

Chief Justice Burger: Mr. Keith.

REBUTTAL ARGUMENT OF ROBERT Q. KEITH, ESQ. ON BEHALF OF APPELLANT

Mr. Keith: Mr. Justice Stevens, in the very outset of the district court's opinion, they said on page 4A of the opinion:

"We are convinced that the territorial expansion was accomplished without a discriminatory purpose. "

Now, they did cast some doubt on it, but they clearly came out on page 1 with an unequivocal finding of no discriminatory purpose.

Mr. Phillips: But is it true that all the property annexed was predominantly white?

Mr. Keith: Yes, Your Honor.

Previously the city had annexed--

Mr. Phillips: Well, I mean, that is true?

Mr. Keith: --That is true.

Mr. Phillips: That is not invidious?

Mr. Keith: The city had already annexed the adjoining black territory.

There was no more black community to be annexed.

They had already all been annexed.

Mr. Phillips: Well, were the same number of black and white people annexed?

The answer is no.

Mr. Keith: No, that is correct, Your Honor.

Mr. Phillips: That's right.

They were white.

Mr. Keith: That is correct.

Mr. Phillips: And no problem?

Mr. Keith: That is correct.

The Solicitor General states that the residence requirement offers nothing to the black citizen.

As the record shows, the residency requirement was imposed as a condition of settlement by the Attorney General, and it seems strange that they would now say it offers nothing to the black community when the joint submission makes very plain that it was at their insistence and did advance the interest of the black community.

Justice Rehnquist asked about Beer.

Your Honor, before these annexations began there was one black representative among seven on the council.

Even just voting on a partial council, there are now three black representatives out of nine.

So if Beer becomes the test, we have met Beer at least twice over.

Regardless of the effect of the swing vote, the black community still has three representatives in a nine-person council.

It has 35 percent of the voting age population.

The Richmond standard is clear and direct and does not invoke a lot of confusion, doubt, and subjective judgments, that apparently would flow from an affirmance of this district court decision.

Thank you, Your Honors.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.