Cases by Issue - Voting

Bush v. Gore - Oral Argument

Fri, 09 Jan 2009 14:50:29 +0000

Case:

Bush v. Gore

Media File:

00-949_20001211-argument.mp3

Related Transcript:

transcript.xml

Clips:

Clip 001

Bush v. Gore TRJ Clip 1: First interruption

Bush v. Gore Clip 2: Second Interruption: Clip 2

Bush v. Gore TRJ Clip 3: Third Interruption

Bush v. Gore TRJ Clip 4: Fourth Interruption

Transcript:

Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument now on number 00-949, George W. Bush and Richard Cheney, versus Albert Gore, et al. Before we begin the arguments, the Court wishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances.

We greatly appreciate it.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, thank you, and may it please the Court:

Just one week ago, this Court vacated the Florida Supreme Court's November 21 revision of Florida's election code, which had changed statutory deadlines, severely limited the discretion of the State's chief election officer, changed the meaning of words such as shall and may into shall not and may not, and authorized extensive standardless and unequal manual ballot recounts in selected Florida counties.

Just four days later, without a single reference to this Court's December 4 ruling, the Florida Supreme Court issued a new, wholesale post-election revision of Florida's election law.

That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon, and expanded its November 21 judgment that this Court had made into a nullity.

Justice Ginsburg: Mr. Olson...

Justice Kennedy: Can you begin by telling us our federal jurisdiction, where is the federal question here?

Mr. Olson: The federal question arises out of the fact that the Florida Supreme Court was violating Article II, section 1 of the Constitution, and it was conducting itself in violation of section 5 of Title III of federal law.

Justice Kennedy: On the first, it seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution and it can't use its courts, and it can't use its executive agency, even you, your side, concedes it can use the state agencies, it seems to me a holding which has grave implications for our republican theory of government.

Mr. Olson: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures.

Legislatures, of course can use the executive branch in the states, and it may use in its discretion the judicial branch.

Justice Kennedy: Then why didn't it do that here?

Mr. Olson: It did not do that here because it did not specify... it did use the executive branch.

In fact, it vested considerable authority in the Secretary of State, designating the Secretary of State as the chief elections official, and as we point out, the very first provision in the election code requires the Secretary of State to assure uniformity and consistency in the application and enforcement of the election law.

The Secretary of State as the executive branch is also given considerably other... considerable other responsibilities, when but... and to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the Circuit Court of the State of Florida, which is the trial court.

Justice O'Connor: Oh, but you think then there is no appellate review in the Supreme Court of what a circuit court does?

Mr. Olson: Certainly the legislature did not have to provide appellate review.

Justice O'Connor: Well, but it seemed apparently to just include selection of electors in the general election law provisions.

It assumed that they would all be lumped in together somehow.

They didn't break it out.

Mr. Olson: Well, there are... there is a breakout with respect to various aspects of Florida statute and Florida election law.

There is a specific grant of authority to the circuit courts.

There is no reference to an appellate jurisdiction.

It may not be the most powerful argument we bring to this Court.

Justice Kennedy: I think that's right.

Mr. Olson: Because notwithstanding, notwithstanding... well, the fact is that the Constitution may have been invoked.

Justice Kennedy: Well, this is serious business because it indicates how unmoored, untethered the legislature is from the constitution of its own state, and it makes every state law issue a federal question.

Can you use this theory and say that it creates some sort of presumption of validity that allows us to see whether this court or the executive has gone too far?

Is that what you're arguing?

Mr. Olson: No, I would say this with respect... it would have been a perfectly logical, and if you read the statutes, a perfectly logical, especially in the context of a presidential election, to stop this process at the circuit court, and not provide layers of appeal because given the time deadline, especially in the context of this election, the way it's played out, there is not time for an appellate court.

Justice O'Connor: I have the same problem Justice Kennedy does, apparently, which is, I would have thought you could say that Article II certainly creates a presumption that the scheme the legislature has set out will be followed even by judicial review in election matters, and that 3 U.S. code section 5 likewise suggests that it may inform the reading of statutes crafted by the legislature so as to avoid having the law changed after the election.

And I would have thought that that would be sufficient rather than to raise an appropriate federal question, rather than to say there's no judicial review here in Florida.

Mr. Olson: I think that I don't disagree with that except to the extent that I think that the argument we presented and amplified on in our briefs is a good argument, it's a solid argument.

It is consistent with the way the code is set up, and it's particularly consistent with the timetable that's available in a presidential election.

However...

Justice Kennedy: Well, it's pretty close.

You can say it could be interpreted that way by the Florida Supreme Court, I suppose.

You think it must be?

Or is your point that even in close calls we have to revisit the Florida Supreme Court's opinion?

Mr. Olson: No, I think that it is particularly in this case where there's been two wholesale revisions, major restructuring of the Florida Election Code, we don't even get close to that question at all.

It would be unfortunate to assume that the legislature devolved this authority on its judiciary sub silentio.

There is no specific reference to it.

But in this case, as we have pointed out, especially the decision of last Friday, there was a major overhaul in almost every conceivable way.

Justice Stevens: Mr. Olson, as I understand your argument, you rely on Leser v. Garnett and Hawke v. Smith, and is it critical to your Article II argument that we read the word legislature as narrowly, I mean the power granted the legislature as similar to that granted in Article V of the Constitution, as those cases dealt with?

Mr. Olson: No, I don't think it's necessary.

Justice Stevens: So your reliance on... you really are not relying on those cases.

Mr. Olson: Well, I think those cases support the argument, but as we said...

Justice Stevens: But if you've got to choose one version of the word legislature or the other...

Mr. Olson: I think in a different context, it's not necessarily the case, and certainly it is true that legislatures can employ the legislative process that might include vetoes by a state chief executive, or a referendum, when the state deliberately chooses to choose a legislative method to articulate a code.

The point I think that's most important and most...

Justice Stevens: But is it the choice of the legislature or was it constitutionally limited to this provision?

I'm a little unclear on what your theory is.

Is it your theory, in other words, that they voluntarily did not permit appellate review of the lower courts in these election contests or that Article II prohibited them from allowing appeal to the appellate?

Mr. Olson: No, Article II... we do not contend that Article II would prohibit them from fulfilling that process.

Justice Stevens: Of course Article V would have, and under Leser against Garnett and those cases, but you...

Mr. Olson: In the context of this case we're saying that they can include the judicial branch when they wish to do so, but under no circumstances is it consistent with the concept of the plan in the Constitution for the state, sub silentio, the state legislature sub silentio to turn over to the judiciary the power to completely reverse, revise, and change the election code in all of the major respects...

Justice Ginsburg: Mr. Olson, with respect to the role of judicial review, you rely very much on the McPherson case, and two things strike me about that case.

One is, if you're right on your jurisdiction theory, then should not this Court have vacated instead of affirmed the decision of the Michigan Supreme Court in that case because the Michigan legislature didn't confer upon the Michigan Supreme Court in that case any special authority of judicial review?

Mr. Olson: That's entirely possible that that might be the case, Justice Ginsburg, but the entire text of the McPherson decision and its recitation of the legislative history or the history of legislation and acts by state legislatures to comply with it make it quite clear that the power is vested in the legislature itself.

Justice Ginsburg: But there was a decision by the court reviewing, which we affirmed.

Under your jurisdiction theory as I see it, there was no role for the Michigan Supreme Court to play because Article II, section 1 gives the authority exclusively to the legislature, and the legislature has not provided for judicial review especially for that measure.

Mr. Olson: I think the context of that case is different, and that it's entirely possible for the Court to have come to the conclusion it did in that case and we believe that case is compelling for the principle that we are arguing in this case, that there is no, the entire structure of what Florida did, its election code, in its effort to comply not only with Article II, but with Section 5 of Title 3, is such that it did not intend in any way to divest itself of the power to determine how the appointment of electors would be determined in a federal presidential election and most importantly, the resolution of cases and controversies, and disputes, with respect to the appointments...

Justice Ginsburg: Three times, at least as I counted in McPherson itself, it refers to what is done by the legislative power under state constitutions as they exist.

This is not the most clearly written opinion, and yet three times, they refer to the legislative power as constrained by the state's constitution.

Mr. Olson: And I think that that's important.

I agree with you, Justice Ginsburg.

It's not the most clearly written opinion.

But I think that in the context of that case, the relationship of the legislature to the Constitution in that case and the way that power was exercised, that ought to be reconciled with what we are urging the Court today, that a wholesale revision and abandonment of the legislative authority can't be turned over, especially sub silentio, by a legislature simply because there is a constitution.

There is a constitution in every state.

There is a judiciary in every state.

The judiciary performs certain functions in every state, and to go that length, one would assume that the judiciary in every state under that argument could overturn, rewrite, revise, and change the election law in presidential elections notwithstanding Article II, at will.

Now, this was a major, major revision that took place on Friday.

Justice Stevens: Mr. Olson, isn't that one of the issues in the case as to whether it was a major revision?

Your opponents disagree, and I know you rely very heavily on the dissenting opinion in the Florida Supreme Court, but which opinion do we normally look to for issues of state law?

Mr. Olson: Well, I think that the dissenting opinion and the two dissenting opinions are very informative.

We are relying on what the court did.

If one looks at, for example, the recount provisions, before this revision under Florida law, manual recount under the protest provisions were discretionary, completely discretionary, conducted by canvassing boards during the protest phase of the election, post-election period, pursuant to legislatively defined procedures as to who could be present, for seven days after the election with respect to all ballots in a county, that was mandatory and only available, as we heard last week, for tabulation error up until this election.

After the decision of December 8th in this context, those remand provisions, I mean those recount, manual recount provisions became mandatory instead of discretionary pursuant to judicial rather than executive supervsion during the contest phase rather than the protest phase, even though it's not even mentioned in the statute with respect to the contest phase, pursuant to ad hoc judicially established procedures rather than the procedures that are articulated quite carefully in the statute.

Justice Souter: Well, on ad hoc judicially created procedures, the point of subsection 8 of 168.

I mean, once we get into the contest phase, subsection 8 gives at least to the circuit court, leaving aside the question of appellate jurisdiction, about as broad a grant to fashion orders as I can imagine going into a statute.

Mr. Olson: Well, to read that, to read that provision and it's written quite broadly, but to read that, one has to read that in the context of the entire statutory framework.

If one reads it the way the Florida Supreme Court did, the entire process is tilted on its head.

Where there used to be the decision that was in the election officials, it now becomes in the court.

All of the limitations on the remand process that existed during the protest phase, where the standards should be lower because it's earlier in the process are thrown out the window.

The time tables are thrown out the window.

The process that exists are there and one has to...

Justice Souter: What's the timetable in 168?

Mr. Olson: There is no timetable.

Justice Souter: That's right.

There is no timetable there.

So that seems to undercut your timetable argument once you get into the contest phase from the protest phase.

Mr. Olson: But that's only if you untether 168 entirely from the statute and the steam by which the protest phase takes place over a period of seven to 10 days in the context of this election, and the contest phase occurs over the next four weeks.

Justice Souter: It may well be and I'll grant you for the sake of argument that there would be a sound interpretive theory that in effect would coordinate these two statutes, 166 and 168, in a way that the Florida Supreme Court has not done.

But that's a question of Florida Supreme Court statutory construction and unless you can convince us, it seems to me, that in construing 168, which is what we are concerned with now, and its coordination or lack of coordination with 166, the Florida Supreme Court has simply passed the bounds of legitimate statutory construction, then I don't see how we can find an Article II violation here.

Mr. Olson: Well, I am hoping to convince you that they passed far beyond the normal limits of statutory construction.

The changing of the meaning...

Justice Souter: You have convinced us certainly that there is a disagreement about how it should be construed, and that disagreement is articulated by the dissents in the most recent case.

But I don't quite see where you cross the line into saying that this has simply become a nonjudicial act.

It may or may not be good statutory construction, but I don't see it as a nonjudicial act.

Mr. Olson: It is, it is, we submit an utter revision of the timetables, the allocation.

Justice Souter: But Mr. Olson, we're back to the... there is no timetable in 166.

Mr. Olson: That's correct.

Justice Souter: And what your argument boils down to, I think, is that they have insufficiently considered 168, I'm sorry, that they have insufficiently considered 166 in construing 168, and you may be right, but you have no textual hook in 168 to say untethered timetables imply in effect a nonjudicial act.

Mr. Olson: We are not just saying timetables.

We are saying that it has wrenched it completely out of the election code which the legislature very carefully crafted to fit together and work in an interrelated fashion.

It isn't just the timetable.

The fact that there are timetables which are very important in a presidential election, we are today smack up against a very important deadline, and we are in the process where...

Justice Souter: Yes, you are.

But that is a deadline set by a safe harbor statute for the guidance of Congress and it's a deadline that has nothing to do with any text in 168.

Mr. Olson: Well, I believe that the Supreme Court of Florida certainly thought that it was construing, it certainly said so this time, that it was construing the applicability of Section 5 and it was expressing the hope that what it was doing was not risking or jeopardizing the conclusive effect...

Justice Souter: And it took that into consideration in fashioning its orders under subsection 8.

Mr. Olson: And we submit that it incorrectly interpreted and construed federal law in doing that because what they have inevitably done is provide a process whereby it is virtually impossible, if not completely impossible, and I think it is completely impossible, to have these issues resolved and the controversies resolved in time for that federal statutory deadline.

Furthermore, it is quite clear, we submit, that the process has changed.

Justice Souter: Well, if your concern was with impossibility, why didn't you let the process run instead of asking for a stay?

Mr. Olson: Well, because we said...

Justice Souter: We'd find out.

Mr. Olson: Because we argued, and I believe that there is a very firm basis for saying that that process already had violated Article II of the Constitution.

It was also already throwing in jeopardy compliance with Section 5 of Title 3 because the laws had been changed in a number of different respects and we have recited them.

The timetables are important.

Justice Kennedy: Oh, and I thought your point was that the process is being conducted in violation of the Equal Protection Clause and it is standardless.

Mr. Olson: And the Due Process Clause, and what we know is now the new system that was set forth and articulated last...

Justice Breyer: In respect to that...

Mr. Olson: Pardon me?

Justice Breyer: In respect to that, if it were to start up again, if it were totally hypothetically, and you were counting just undercounts, I understand that you think that the system that's set up now is very unfair because it's different standards in different places.

What in your opinion would be a fair standard, on the assumption that it starts up missing the 12th deadline but before the 18th?

Mr. Olson: Well, one fair standard, and I don't know the complete answer to that, is that there would be a uniform way of evaluating the manner in which... there was Palm Beach, for example...

Justice Breyer: All right, a uniform way of evaluating.

What would the standard be, because this is one of your main arguments...

Mr. Olson: Well, the standard...

Justice Breyer: You say the intent of the voter is not good enough.

You want substandards.

Mr. Olson: We want...

Justice Breyer: And what in your opinion would be the most commonly used in the 33 states or whatever, or in your opinion, the fairest uniform substandard?

Mr. Olson: Well, certainly at minimum, Justice Breyer, the penetration of the ballot card would be required.

Now, that's why I mentioned the Palm Beach standard that was articulated in writing and provided along with the ballot instructions to people voting, that the chad ought to be punctured.

Justice Breyer: You're looking at, then, basically Indiana.

Is Indiana, in your opinion or pre... or 1990 Palm Beach, are either of those fair, or what else?

Mr. Olson: It's certainly a starting point, and the...

Justice O'Connor: Well, would the starting point be what the Secretary of State decreed for uniformity?

Is that the starting point...

Mr. Olson: That is correct.

Justice O'Connor: Under the Florida legislative scheme?

Mr. Olson: I would agree with that, Justice O'Connor.

Justice O'Connor: And what standard did the Secretary of State set?

Mr. Olson: She had not set one, and that's one of the objections that we had with respect to the process that... the selective process that existed and that we discussed in conjunction with the December... the November 21st position.

Not only was there not a standard, but there was a change two or three times during the course of this process with respect to the standard that I was just discussing.

Justice Kennedy: I understand that she has the expertise and let's assume that under Florida state law she's the one with the presumptive competence to set the standard.

Is there a place in the Florida scheme for her to do this in the contest period?

Mr. Olson: I don't think there is.

There is no limitation on when she can answer advisory opinions.

Justice Kennedy: Even in the contest period?

Mr. Olson: I don't... I think that that's correct.

Now, whether or not if there was a change as a result of that, of the process, whether there would be problems with respect to section 5 I haven't thought about, but...

Justice Kennedy: No, if there's...

Justice Souter: If this were remanded...

Justice Kennedy: Go ahead.

I'm sorry.

Justice Souter: If this were remanded to the Leon County Circuit Court and the judge of that court addressed the Secretary of State, who arguably either is or could be made a party, and said please tell us what the standard ought to be, we will be advised by your opinion, that would be feasible, wouldn't it?

Mr. Olson: I think it would be feasible.

Now, counsel for the Secretary of State will be up in a moment, immediately after me.

As I understand, however, the election code, she would have the power to respond to that inquiry.

In fact, under the very first, as I mentioned, the very first section of the election code, sub 1, she is not only the chief election officer, but has 5 responsibility...

Justice Breyer: But I would still like to get your view as to what would be the fair standard.

Mr. Olson: Well, certainly one that would... I don't... I haven't crafted it entirely out.

That is the job for a legislature.

Justice Breyer: I would still like to get your opinion insofar as you could give it.

Mr. Olson: I think part of that standard is it would have to be applied uniformly.

It would have to be... I would think a reasonable standard is, would have to be at minimum a penetration of the chad in the ballot, because indentations are no standards at all.

There are other procedural standards in the...

Justice Stevens: Mr. Olson, was the Palm Beach standard that you referred in your brief applied statewide and uniformly?

You refer to the Palm Beach standard having changed.

Was the Palm Beach standard ever applied on a statewide basis?

Mr. Olson: I believe it was not, Justice Stevens.

Justice Stevens: And can we possibly infer from the failure of the Secretary of State to promulgate a statewide standard that she might have inferred that the intent of the voter is an adequate standard?

Mr. Olson: No, I don't think it's a fair inference either way.

Remember in response to the question from I think it was Justice Scalia the last time we were here, this is the first time we've had a manual recount for anything other than arithmetic tabulation error.

This is something that is unprecedented in the State of Florida.

That's another change that took place.

Justice Ginsburg: Mr. Olson, you have said the intent of the voters simply won't do, it's too vague, it's too subjective, but at least, at least those words, intent of the voter, come from the legislature.

Wouldn't anything added to that be... wouldn't you be objecting much more fiercely than you are now if something were added to the words that the all powerful legislature put in the statute?

Mr. Olson: Well, I think we have to distinguish between whether we're talking about a prospective uniform standard as opposed to something that changes the process in the middle of the counting and evaluating of disputes.

But it certainly would...

Justice Ginsburg: But if we're talking about the contest period, and the statute, as Justice Souter pointed out, speaks with amazing breadth.

It says that... this is the text...

"shall fashion any order he or she deems necessary to prevent or correct any wrong and to provide any relief appropriate under the circumstances. "

I couldn't imagine a greater conferral of authority by the legislature to the circuit judge.

Mr. Olson: But we submit in the context of the entire election code itself.

Now, the intent of the voter standard, the one that's been cited and relied upon by our opponents most, is a provision that's contained in the provision of the election code that deals with damaged or spoiled ballots.

Justice Souter: Okay, but we have... there's no question that the closest we can come now under Florida law is an intent of the voter standard.

Is it your position that if any official, judicial or executive, at this point were to purport to lay down a statewide standard which went to a lower level, a more specific level than intent of the voter, and said, for example, count dimpled chads or don't count dimpled chads.

In your judgment, would that be a violation of Article II?

Mr. Olson: I don't think it would be a violation of Article II provided that... I mean, if the first part of your question...

Justice Souter: All right, so...

Mr. Olson: If we went from the standard that existed before, the dimpled chads, that that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article II.

Justice Scalia: Mr. Olson...

Mr. Olson: It would be a complete change.

Justice Scalia: It is also part of your case, is it not, that insofar as that language just quoted is concerned, the power of the circuit judge to prevent or correct any alleged wrong, it's part of your submission, I think, that there is no wrong when a machine does not count those ballots that it's not supposed to count?

Mr. Olson: That's absolutely correct, Justice Scalia.

Justice Scalia: The voters are instructed to detach the chads entirely, and the machine, as predicted, does not count those chads where those instructions are not followed, there isn't any wrong.

Mr. Olson: That's correct, they've been euphemistically... this has been euphemistically referred to as legal votes that haven't been counted.

These are ballots where the system created by Florida, both with respect to the initial tabulation and the preferred system for the recount, the automatic recount in close elections, is to submit those ballots to the same mechanical objective scrutiny that the initial count was done, and those were not counted either because there were votes for more than one candidate, which would make them overvotes, I guess they're calling them, or that they read as no vote, which many people do, many people do not vote in the presidential election even though they're voting for other offices.

Justice Souter: But as to the undervotes, and as to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn't pick up, the majority of the Florida Supreme Court says you're wrong.

They interpreted the statute otherwise.

Are you saying here that their interpretation was so far unreasonable in defining legal vote as not to be a judicial act entitled, in effect, to the presumption of reasonable interpretation under Article II?

Mr. Olson: Yes, that is our contention, and that has to be done.

That contention is based upon everything else in the Florida statute, including the contest provisions.

The manual recount provisions...

Justice Souter: What is it in the contest provision that supports the theory that that was a rogue, illegal judicial act?

Mr. Olson: Because there is no reference to them, even though that process is referred to...

Justice Souter: There's no definition.

There's no definition.

Doesn't the court have to come up with a definition of legal votes?

Mr. Olson: In the context, in the context of the statute as a whole, manual recounts are treated quite extensively as a last resort for tabulation error at the discretion of canvassing officials.

Justice Souter: At the protest stage?

Mr. Olson: That's correct.

Justice Kennedy: Mr. Olson...

Mr. Olson: We submit... and I would like to reserve the balance of my time.

Justice Stevens: Mr. Olson, is it critical to your position that the Florida Supreme Court erred in its resolution of the shall/ may controversy in its first opinion?

Mr. Olson: I'm sorry, I missed...

Justice Stevens: Is it critical to your position, because you're tying the two cases together, that the Florida Supreme Court made that kind of error in its resolution of the conflict between shall and may in the disparate statute?

Mr. Olson: I don't think it's critical.

What we're saying is that the court expanded upon its previous decision that was vacated in this case, it used the time period that it opened up to do this manual recount to then build upon in the December 8th opinion.

Argument of Joseph P. Klock Jr.

Chief Justice Rehnquist: Very well, Mr. Olson.

Mr. Klock, we'll hear from you.

Mr. Klock: Mr. Chief Justice, and may it please the Court:

If I could start by addressing a question of Justice Souter with respect to the standards, 166 does have time limits.

The time limit of 166 is set by the certification, which is seven days after the election.

The time of the contest, there are time limits there as well.

You have ten days to file a complaint, ten days to file an answer, and in the context of a presidential election, you then of course have the December 12 deadline.

So therefore, there are time...

Justice Souter: Which is federal, not state, and occurs in the safe harbor statute, or as a result of the safe harbor statute.

Rebuttal of Theodore B. Olson

Mr. Olson: Yes, Your Honor, but this Court in its opinion that it handed down in the initial Harris case pointed out that it was clear that there was a desire in which by the legislature to preserve the safe harbor.

Justice Souter: Oh, there is no...

Justice Scalia: I thought the Florida court accepted that, too, in its current opinion.

Rebuttal of Joseph P. Klock Jr.

Mr. Klock: They did say that exactly, Your Honor.

Chief Justice Rehnquist: Mr. Klock, will you... you refer to the first Harris case.

We think of it as the first Bush v. Gore case.

You are talking about the same...

Mr. Klock: Yes, Your Honor.

Justice Souter: Mr. Klock, will you address Justice Breyer's question of a moment ago, if there were to be a uniform standard laid down, I suppose at this point by the Leon County Circuit Court or in any other valid way in your judgment, what should the substantive standard be?

Mr. Klock: I'll try to answer that question.

You would start, I would believe, with the requirements that the voter has when they go into the booth.

That would be a standard to start with.

The voter is told in the polling place and then when they walk into the booth that what you are supposed to do with respect to the punch cards is put the ballot in, punch your selections, take the ballot out, and make sure there are no hanging pieces of paper attached to it.

The whole issue of what constitutes a legal vote which the Democrats make much ado about presumes that it's a legal vote no matter what you do with the card.

And presumably, you could take the card out of the polling place and not stick it in the box and they would consider that to be a legal vote.

The fact is that a legal vote at the very basics has to at least be following the instructions that you are given and placing the ballot in the box.

Justice Breyer: No, we're asking, I think...

Mr. Klock: No.

Justice Breyer: Not what the Florida election law is at this point in your opinion, but rather if under the Equal Protection Clause, and I'm drawing on your experience as a person familiar with elections across the country.

You have looked into this.

Mr. Klock: Yes, sir.

Justice Breyer: What would be a fair subsidiary standard applied uniformly, were it to be applied uniformly across all the counties of Florida, including Broward, a fair uniform standard for undervotes.

Remember, Indiana has a statute, Michigan has a statute, 33 states have a statute where they just say intent of voter, but in your opinion because of the hanging chad, etcetera, etcetera, what is a fair, not necessarily Florida law, but a fair uniform standard?

Mr. Klock: Without being disrespectful, Your Honor, I think you have answered the question in terms of phrasing the question.

There are any number of statutory schemes that you could select from if you were a legislature, but as a court, I don't think that the Supreme Court of Florida respectfully, or any other court can sit down and write the standards that are going to be applied.

If you are a legislature...

Justice Breyer: But in your opinion, if you were looking for a basically fair standard, to take one out of a hat, Indiana, or Palm Beach 1990, in your opinion would be a basically fair one?

Mr. Klock: If I were to take one out of a hat, Your Honor, if I was a legislature, what I would do is I would hold that you have to punch the chad through on a ballot.

In those situations where you have a ballot where there are only indentations in every race, you might then come up with a different standard, but the only problem that we have here is created by people who did not follow instructions.

Justice Breyer: Okay.

Can I ask you a different question on Florida law?

Mr. Klock: Yes, sir.

Justice Breyer: And the question on Florida law is simply this, what the statute is.

I take it the contest statute lists grounds for contesting, one of those grounds is rejecting a sufficient number of legal votes sufficient to place the election in doubt, and then the circuit judge is given the power to investigate that allegation, just to look into it.

Mr. Klock: Yes.

There were no...

Justice Breyer: So why would it be illegal under Florida law to have a recount just to investigate whether this allegation is or is not so?

Mr. Klock: The Justice's question assumes that they are legal votes.

Justice Breyer: There might be some in there that are legal under anybody's standard.

Mr. Klock: Your Honor, if they are not properly, if the ballot is not properly executed, it's not a legal vote.

The only case in Florida that even touches upon this in terms of a machine ballot is the Hogan case from the Fourth District Court of Appeal.

In the Fourth District Court of Appeal, that candidate lost by three votes, and he went during the protest phase to the canvassing board and asked for a manual recount to be done and they exercised their discretion and said no.

And in that case, there is a discussion.

He raised the argument that there were ballots in there that had hanging chads and this that and the other thing.

They would hear none of it and when it went up on appeal, it was affirmed.

So the fact of the matter is that the only case that we have that deals with this handles it in that fashion, and I would respectfully suggest that a ballot that is not properly punched is not a legal ballot.

And I think also, sir, if you go through an analysis of the Vice President's arguments in supporting what the Supreme Court does, there is sort of an omelet that is created by going and picking through different statutes.

For instance, the clear intent standard comes from a statute that deals with a damaged ballot where you have to create, to put through the machine, a substitute ballot, and there are very clear directions as to what to do to preserve the integrity of the ballot.

And the Beckstrom case, which you will no doubt hear much about as the argument proceeds, dealt with that kind of situation.

There was a manual recount there; the court did not pass on the propriety of it.

The issue was if the election officials took ballots and marked over the ballots instead of creating a separate substitute ballot, they took that ballot and marked it over so it could go through an optical scanner, which the court found to be gross negligence whether they would discount the votes.

That was the issue that was present there.

So I think if you look through Florida law it is relatively clear that there was no basis whatsoever to be able to find...

Justice Stevens: Let me just ask this question.

If you did have a situation, I know your position is different, where there were some uncounted ballots due to a machine malfunction, for example, would it not make sense to assume that the standard used for damaged ballots would be the same standard you use in that situation?

Mr. Klock: I don't think so, sir.

Justice Stevens: What standard would you use in the situation I propose, then?

Mr. Klock: Well, Justice Brennan, the difficulty is that under... I'm sorry.

That's why they tell you not to do that.

The standard that is in 166 is in, is dealing with the protest phase, and it was brought about in 1988.

Justice Stevens: I understand, but my question is if you don't use that standard, what standard would you use for my hypothetical?

Mr. Klock: The legislature would have to create one, sir.

I don't know what standard...

Justice Souter: You are saying that they can't interpret a statute in which there is no explicit definition.

Mr. Klock: What I'm saying is...

Justice Souter: They have to throw their hands up?

Mr. Klock: No.

Justice Breyer, what I'm saying is that...

Justice Souter: I'm Justice Souter... you'd better cut that out.

Mr. Klock: I will now give up.

What I'm saying, sir, is this.

That you cannot be in a situation of using the word interpret to explain anything that a court does.

The word interpret cannot carry that much baggage.

Justice Souter: But you go to the opposite extreme and say, it seems to me, that they cannot look, as Justice Stevens suggested, to a statute which deals with, and certainly a closely analogous subject at a near stage, and it seems to me that you in effect go to the opposite extreme that you are excoriating the Florida Supreme Court for and say they can't interpret at all.

Mr. Klock: I think what the Florida Supreme Court should do in that instance is note the very tight restrictions that exist under the protest phase.

They require that you find voter intent with respect to a damaged ballot.

They also vested in the canvassing board, and the canvassing board is composed of a certain, a defined group of officials, a county judge, the election supervisor, the chairman of the county commission, it is very limited.

Justice Souter: But that means the court apparently cannot define legal vote.

Mr. Klock: That's correct.

Justice Scalia: Mr. Klock... I'm Scalia.

Mr. Klock: Yes, sir.

I remember that.

Correct me.

It will be hard to forget.

Justice Scalia: Correct me if I'm wrong, but I had thought that although you don't take into account improperly marked ballots for purposes of determining whether there will be a manual recount, I had thought that when there is a manual recount for some other reason, and you come across ballots of this sort that you can count them, that for that purpose you can decide oh, look at, there is a hanging chad.

The machine didn't count it.

It's clear what the intent of the voter are.

We'll count it.

Is that not correct?

Mr. Klock: Yes.

Justice Scalia, that is correct.

If you have a situation...

Justice Stevens: It's correct if you use the intent of the voter standard in that situation?

Mr. Klock: Pardon me, sir?

Justice Stevens: It's correct that you use the intent of the voter situation, standard in that situation?

Justice Breyer: That's what I understand the answer to be.

Mr. Klock: It is correct that that statute provides that.

That I think that that statute, there could be problems under it, but that statute was designed for a very limited situation where there was a problem with the mechanism of voting.

It was not designed to handle voter error and that is absolutely clear because otherwise, Your Honor, what would occur is the following.

That in every election that have you that was close, you would have an automatic recount and then irrespective of what the canvassing board does, just load all the ballots together and put them on a truck and send them to Tallahassee because if there is no standard whatsoever and in any election contest that you are unhappy with the election, you can send the ballots to Tallahassee, then have you a problem that is created that would not exist...

Argument of David Boies

Chief Justice Rehnquist: Thank you, Mr. Klock.

Mr. Boies, we'll hear from you.

Mr. Boies: Thank you, Mr. Chief Justice, may it please the court.

Let me begin by addressing what happened in the Beckstrom case that Mr. Klock refers to.

Justice Kennedy: Could we begin with jurisdiction, first?

Mr. Boies: Yes.

Justice Kennedy: The Supreme Court of Florida said that it took, that it was cognizant, and the legislature was cognizant of 3 U.S.C. Section 5.

And for convenience sake, let's call that new law.

Justice Breyer: That's not exactly the...

Justice Kennedy: When the Supreme Court used that word, I assume it used it in a legal sense.

Cognizance means to take jurisdiction of, to take authoritative notice.

Why doesn't that constitute an acceptance by the Supreme Court of the proposition that 3 USC section 5 must be interpreted in this case?

Mr. Boies: I think, Your Honor, and obviously this Court and the Florida Supreme Court is the best interpreter of that opinion, but I think a reasonable interpretation of that opinion is to say that what the Florida Supreme Court meant by cognizant is that it was taking into account the desire to get the election over in time so that everyone would have the advantage of the safe harbor.

I think that goes throughout the opinion.

Justice Kennedy: Well, the language used in 3 USC section 5 is garden variety language so far as the courts are concerned.

We can determine whether or not there is a new law or an old law.

That's completely susceptible of judicial interpretation, is it not?

Mr. Boies: Yes, I think it is, Your Honor.

Justice Scalia: All right.

Justice Kennedy: And it seems to me that if the Florida court, and presumably the Florida legislature have acted with reference to 3 USC section 5 that it presents now a federal question for us to determine whether or not there is or is not a new law by reason of the various Florida supreme... two Florida Supreme Court decisions.

Mr. Boies: Except, Your Honor, what the Florida Supreme Court did I think in its opinion is to say that in terms of looking at how to remedy the situation, it needed to be cognizant of the fact that there was this federal deadline out there that was going to affect Florida's electors if that deadline was not met.

Justice Kennedy: Well, of course the deadline is meaningless if there's a new law involved.

That's part of the equation, too.

Mr. Boies: Yes, but what I would say is that whether or not there is a new law, that is whether there's a change in the enactment in the language of the statute or the constitution, is something that has to be decided in the initial instance by the Florida Supreme Court interpreting Florida law.

Chief Justice Rehnquist: There really... Mr. Boies, there are really two parts to that sentence of section 5 we're talking about.

One is the law in effect at the time and the other is finally determined six days before the date for choosing the electors.

Do you think the Florida court meant to acknowledge... it seems to me since it's cited generally, they must have acknowledged both of those provisions.

Mr. Boies: I don't know exactly what was in the Florida Supreme Court's mind, but I think that in general what the Florida Supreme Court made quite clear is that the thing that was constraining it was the desire to fit its remedy within the safe harbor provision.

Chief Justice Rehnquist: So that's the finally determined portion of section 5?

Mr. Boies: Yes, Your Honor, yes, I think that's right.

And I think it does not reflect a desire to change the law or in any way affect what the substantive law is.

What the court is saying is...

Justice Kennedy: Let me ask, could the legislature of the State of Florida, after this election, have enacted a statute to change the contest period by truncating it by 19 days?

Mr. Boies: You mean by shortening it?

Justice Kennedy: Without contravening the section which says that there should be no new law for the safe harbor?

Could the Florida Supreme Court have done what the... could the Florida legislature have done what the supreme court did?

Mr. Boies: I think that it would be unusual.

I haven't really thought about that question.

I think they probably could not...

Justice Kennedy: Consistently, because that would be a new law under section 5, wouldn't it?

Mr. Boies: Yes, because it would be a legislative enactment as opposed to a judicial interpretation of an existing law.

Remember...

Justice Kennedy: And in fact it would be a new law under our pre-clearance jurisprudence, wouldn't it?

Mr. Boies: I think not, Your Honor, because if you go back to the State against Chappell in 1988, where the Florida Supreme Court faced the very question of whether or not that seven-day period was an iron curtain that came down, the Florida Supreme Court said it was not.

The Florida Supreme Court said that you had to look as to whether there was substantial compliance.

In that case three days was found to be substantial compliance.

That was a situation in which there was telephone notice, which was not adequate for certification.

That was then followed up...

Justice Kennedy: But if we assume the legislature would run contrary to the new law prohibition in the statute, wouldn't the Supreme Court do it if it does exactly the same thing?

Mr. Boies: Except what I'm saying, Your Honor, is that it wasn't doing exactly the same thing because it wasn't passing a new law.

It was interpreting the existing law.

If the legislature had said, for example the legislature...

Justice Kennedy: I'm not sure why... if the legislature does it it's a new law and when the supreme court does it, it isn't.

Both would have to require... you have to pre-clear judicial rulings and see whether they make new laws, don't you?

Mr. Boies: What I'm saying, Your Honor, is that if the supreme court had rewritten the law the way you hypothesized the legislature rewrote the law, it might very well be a difference.

What I'm saying is that the Florida Supreme Court did not rewrite the law in the way that you hypothesized.

What the Florida Supreme Court was confronted with was a statute, and that statute said that... and it was the later passed statute, we get back into the may and the shall.

The may statute was the later passed statute, and so what the Florida Supreme Court said is we have to look at what is the criteria by which you decide whether you may ignore and will ignore these returns, and what the Florida Supreme Court said, we're going to interpret that exactly the way we've interpreted it for 25 years, and 12 years before the Florida Supreme Court made this decision, it had made the State against Chappell decision in which it had approached it from exactly the same policy grounds.

Justice Scalia: Well, it was quite a different... I mean, there, indeed, telephone notification had been given within the deadline, and the actual written material was not submitted until a few days after.

I think that's quite a bit different from extending the period generally and for all submissions for, you know... but if I could... I'm not sure that you and Justice Kennedy are disagreeing on very much.

It seems to me you acknowledge that if the Florida Supreme Court's interpretation of this law were not a reasonable interpretation, just not one that would pass normal judicial muster, then it would be just like the legislature writing a new law, but your contention here is that this is a reasonable interpretation of Florida law.

Mr. Boies: I think the way I would put it, Your Honor, is that if you conclude that the Florida Supreme Court's interpretation of Florida law is either a sham or it is so misguided that it is simply untenable in any sense...

Justice Kennedy: Right.

Mr. Boies: I think at that point then you can conclude that what it has done is it has changed the law, but I think the standard is the standard this Court has generally applied in giving deference to state supreme court decisions.

Justice O'Connor: But is it in light of Article II?

I'm not so sure.

I mean, I would have thought that that bears on the standard, frankly, when it contemplates that it is plenary power in the legislature.

Does that not mean that a court has to, in interpreting a legislative act, give special deference to the legislature's choices insofar as a presidential election is concerned?

I would think that is a tenable view anyway, and especially in light also of the concerns about section 5.

Mr. Boies: I think, Your Honor, that if the Florida Supreme Court in interpreting the Florida law, I think the Court needs to take into account the fact that the legislature does have this plenary power.

I think when the Florida Supreme Court does that, if it does so within the normal ambit of judicial interpretation, that is a subject for Florida's Supreme Court to take.

Justice O'Connor: You are responding as though there were no special burden to show some deference to legislative choices.

In this one context, not when courts review laws generally for general elections, but in the context of selection of presidential electors, isn't there a big red flag up there, watch out?

Mr. Boies: I think there is in a sense, Your Honor, and I think the Florida Supreme Court was grappling with that.

Justice O'Connor: And you think it did it properly?

Mr. Boies: I think it did do it properly.

Justice O'Connor: That's, I think, a concern that we have, and I did not find really a response by the Florida Supreme Court to this Court's remand in the case a week ago.

It just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they would go ahead and adhere to them, and I found that troublesome.

Mr. Boies: Your Honor, if I could, one of the things that was argued from the beginning by Governor Bush's counsel and accepted by the Florida Supreme Court was that the protest statute and the contest statute were very separate procedures.

There was a time limit in the protest contest prior to certification, but there is no time limit in the contest statute process, which is what we are in now, and I think that the Florida Supreme Court was focusing on this contest period, which is what is really before, was before them and is before you, and in the contest...

Justice O'Connor: But I thought, and maybe I'm mistaken, but I thought it directed that certain votes that had been tabulated after the expiration of the original certification date were to be included now without reference to the point at all that their opinion had been vacated.

I just didn't know how that worked.

Mr. Boies: Well, there are three different groups of votes, okay?

And with respect... Broward, Palm Beach, and Miami-Dade.

With respect to Miami-Dade and Palm Beach, there was a trial.

There was a contest trial.

It is the appeal from that trial that is before this Court.

And the petitioners don't really refer to what's in the trial record but in that trial record, there was undisputed evidence that the votes that were counted there were valid legal votes.

Now, whether those votes were counted as part of the certification process or not...

Justice Kennedy: This was a...

Mr. Boies: Once you know they are valid votes...

Chief Justice Rehnquist: This was a trial, Mr. Boies, in the circuit court of Miami-Dade?

Mr. Boies: Yes.

No.

In the Circuit Court of Leon County.

Because it's a statewide election, the contest procedure takes you to Leon County, regardless of where the votes are cast.

But what the, what the, what the court found there, and there was undisputed evidence, and Mr. Richard, who was Governor Bush's counsel here, conceded that the Palm Beach Board had applied the appropriate standard in identifying votes, the so-called 215 additional net votes for Vice President Gore and Senator Lieberman.

What you had there was undisputed evidence, it was found as a matter of fact, and the Supreme Court reviewing that trial said you've had these votes identified by Miami-Dade, 168 net votes, by Palm Beach, 215 net votes, and those votes need to be included.

Not because...

Justice Breyer: It not only said...

Mr. Boies: It's a part of the certification process.

Justice Scalia: It not only said that.

It said that those votes have to be certified.

Mr. Boies: Yes, Your Honor.

Justice Scalia: It said that those votes had to be certified, which certainly contravenes our vacating of their prior order.

Mr. Boies: I think not, Your Honor, because when you look at the contest statute, it is a contest of the certification.

That is, the process is the results are certified and then what happens is you contest whether that certification is right.

Justice Scalia: I understand, but this, but what the Florida Supreme Court said is that there shall be added to the certification these additional numbers.

Mr. Boies: But that's true in any contest.

Every single contest...

Justice Scalia: It's not added to the certification.

Mr. Boies: Yes, of course it is, Your Honor.

Justice Scalia: You may do review of the ballots and add more numbers, but as I read the Florida Supreme Court opinion, it said the Secretary of State will certify these additional...

Mr. Boies: Yes.

Because the contest procedure is a procedure to contest the certification.

What you are doing is you are saying this certification is wrong.

Change it.

That's what every contest proceeding is.

And what the Florida Supreme Court was saying after this trial is yes, you proved that this certification is missing 250 votes.

Justice Scalia: The certification as rendered by the Secretary of State did not include those additional ballots for your client, and the Supreme Court directed that the certification would be changed to include those.

Mr. Boies: But, but Your Honor, that is what happens every time there is a successful contest.

The contest is a contest of the certification.

You have the certification results first.

Justice Kennedy: It doesn't make any sense to me.

Justice Scalia: You have a certification which is made by the Secretary of State.

That is what is contested.

Mr. Boies: Right.

Justice Scalia: And here the certification was directed to be changed.

Justice Kennedy: Let...

Justice Breyer: By the way, does it matter if they said in Palm Beach and, Palm Beach and Miami-Dade, the ones that the court said you must certify, if they were thrown into the other, said recount them.

If it's uncontested in the trial, I guess that you would get to the same place.

Mr. Boies: I think you get to exactly the same place.

Justice Breyer: So it doesn't really matter.

Mr. Boies: I think it doesn't really matter what they said.

Justice Breyer: But Broward might?

Mr. Boies: But Broward might.

Justice Breyer: Would you object if they have a different standard to recounting those?

Mr. Boies: Broward is a different situation.

Justice Breyer: Yes.

Mr. Boies: With respect to Broward, what you have is you have these votes that have been counted, and were included in the certification, and if were you to assume that that certification that came in on November 26th is somehow void, then those ballots would have to be considered just like the Dade and Palm Beach ballots, so I think there is a distinction between Broward and...

Justice Kennedy: Do you think that in the contest phase, there must be a uniform standard for counting the ballots?

Mr. Boies: I do, Your Honor.

I think there must be a uniform standard.

I think there is a uniform standard.

The question is whether that standard is too general or not.

The standard is whether or not the intent of the voter is reflected by the ballot.

That is the uniform standard throughout the State of Florida.

Chief Justice Rehnquist: That's very general.

Justice Kennedy: It runs throughout the law.

Even a dog knows the difference in being stumbled over and being kicked.

We know it, yes.

In this case... in this case what we are concerned with is an intent that focuses on this little piece of paper called a ballot, and you would say that from the standpoint of equal protection clause, could each county give their own interpretation to what intent means, so long as they are in good faith and with some reasonable basis finding intent?

Mr. Boies: I think...

Justice Kennedy: Could that vary from county to county?

Mr. Boies: I think it can vary from individual to individual.

I think that just as these findings...

Justice Kennedy: So that, so that even in one county can vary from table to table on counting these ballots?

Mr. Boies: I think on the margin, on the margin, Your Honor, whenever you are interpreting intent, whether it is in the criminal law, an administrative practice, whether it is in local government, whenever somebody is coming to government...

Justice Kennedy: But here you have something objective.

You are not just reading a person's mind.

You are looking at a piece of paper, and the supreme courts in the states of South Dakota and the other cases have told us that you will count this if it's hanging by two corners or one corner, this is susceptible of a uniform standard, and yet you say it can vary from table to table within the same county.

Mr. Boies: With respect, it is susceptible of a more specific standard, and some states, like Texas, have given a statutory definition, although even in Texas, there is a catch-all that says anything else that clearly specifies the intent of the voter.

So even, even where states have approached this in an attempt to give specificity, they have ended up with a catch-all provision that says look at the intent of the voter.

Justice Souter: But they have ended up with a catch-all provision because I assume there may be cases in which the general rule would otherwise operate in which there is an affirmative counter indication to what the general rule would provide, but I think what's bothering Justice Kennedy and it's bothering a lot of us here is we seem to have a situation here in which there is a subcategory of ballots in which we are assuming for the sake of argument since we know no better that there is no genuinely subjective indication beyond what can be viewed as either a dimple or a hanging chad, and there is a general rule being applied in a given county that an objective intent or an intent on an objective standard will be inferred, and that objective rule varies, we are told, from county to county.

Why shouldn't there be one objective rule for all counties and if there isn't, why isn't it an equal protection violation?

Mr. Boies: Let me answer both questions.

First, I don't think there is a series of objective interpretations, objective criteria that would vary county by county.

Justice Souter: All right.

But on the assumption that there may be, if we were fashioning a response to the equal protection claim, and we assume as a fact that there may be variations, wouldn't those variations as, from county to county, on objective standards, be an equal protection violation?

Mr. Boies: I don't think so.

I don't think so, Your Honor, because I think there are a lot of times in the law in which there can be those variations from jury to jury, from public official to public official.

Justice Souter: Yes, but in jury to jury cases, we assume that there is not an overall objective standard that answers all questions definitively.

We are assuming that there is detail that cannot be captured by an objective rule.

The assumption of this question, and I think, I think it's behind what's bothering Justice Kennedy, Justice Breyer, me and others, is, we're assuming there's a category in which there just is no other... there is no subjective appeal.

All we have are certain physical characteristics.

Those physical characteristics we are told are being treated differently from county to county.

In that case, where there is no subjective counter indication, isn't it a denial of equal protection to allow that variation?

Mr. Boies: I don't think, I don't think so, Your Honor, because... and maybe I am quarreling with a premise that says there are these objective criteria.

Maybe if you had specific objective criteria in one county that says we're going to count indented ballots and another county that said we're only going to count the ballot if it is punched through.

If you knew you had those two objective standards and they were different, then you might have an equal protection problem.

Justice Souter: All right, we're going to assume that we do have that.

We can't send this thing back for more fact finding.

If, if we respond to this issue and we believe that the issue is at least sufficiently raised to require a response, we've got to make the assumption, I think at this stage, that there may be such variation, and I think we would have a responsibility to tell the Florida courts what to do about it.

On that assumption, what would you tell them to do about it?

Mr. Boies: Well, I think that's a very hard question.

Justice Breyer: You would tell them to count every vote.

Justice Breyer: We're telling them to count every vote.

Mr. Boies: I would tell them to count every vote.

Justice Stevens: Let me ask you, before you answer that question, Mr. Boies...

Mr. Boies: I think, I think I would say that if you're looking for a standard, and I say that not because of the particular aspects of this election... the Texas standard, if you wanted to specify something that was specific, gives you a pretty good standard.

Justice Stevens: Let me ask you this question, Mr. Boies.

Is it really, does not the procedure that is in place there contemplates that the uniformity will be achieved by having the final results all reviewed by the same judge?

Mr. Boies: Yes, that's what I was going to say, Your Honor, that what you have here is you have a series of decisions that people get a right to object to is all going through a process, the people are there.

They submit written objections, and then that's going to be reviewed by a court.

Justice Scalia: Well, all right.

That causes me some problems that pertain not just to the equal protection aspect of this, but to the rationality of the supreme court's opinion, because the supreme court opinion on the one hand said, as you've just repeated, that there was to be de novo review by the circuit judge in Leon County.

But on the other hand, it said that he had to accept the counts that had come out of Palm Beach and Broward counties.

It was clear that Broward and Palm Beach counties had applied different criteria to dimpled ballots.

One of them was counting all dimpled ballots, the other one plainly was not.

How can you at one and the same time say it's a de novo standard as to what is the intent of the voter, and on the other hand say, you have to accept, give some deference to, quite differing standards by two different counties?

That's just not rational.

Mr. Boies: Your Honor, I think what the court held was not include both Broward and Palm Beach.

I think it was Palm Beach and Miami-Dade, because Broward was not part of the trial because Broward had been certified, and with respect to Miami-Dade and Palm Beach, I do not believe that there is evidence in the record that that was a different standard.

I don't... and there's no finding at the trial court that that was a different standard.

Indeed, what the trial court found was that both Miami-Dade and Palm Beach properly exercised their counting responsibilities, so I don't think...

Justice Scalia: What do you mean?

Properly exercised what?

Their discretion, right?

Is that what he meant by counting responsibilities?

Mr. Boies: I believe what he meant, it was discerning the clear intent of the voter, which is what they were both attempting to do.

Chief Justice Rehnquist: Was this the trial before Judge Sauls?

Mr. Boies: Yes, Your Honor.

Chief Justice Rehnquist: I thought he ruled against the contestants, said they took nothing.

Mr. Boies: Yes, that is, that is right, but he did so based on what the Florida Supreme Court held, and what six justices of the Florida Supreme Court held were two errors of law.

First, that we had to prove before he looked at the ballots that there was a probability that the election result would be changed, and second, that we had to prove abuse of discretion.

Chief Justice Rehnquist: But the fact-finding phase of that trial would be from... you say these were found as a fact in some... did he make findings of fact?

Mr. Boies: Yes, he did.

Chief Justice Rehnquist: What did he say with respect to this?

Mr. Boies: With respect to this he said... he said it separately with respect to Miami-Dade and Palm Beach.

Because he found that they had properly exercised their discretion.

The Palm Beach chairman of the canvassing board actually was a witness, Judge Burton.

He came and testified, and he testified that they used a clear intent of the voter standard.

Chief Justice Rehnquist: As opposed to just intent of the voter?

Mr. Boies: Yes, just intent.

They used clear intent of the voter.

And the statute, sometimes, in one section says clear intent of the voter.

That's the one that Petitioners' counsel is referring to.

In 166, it refers in subsection 7(b) to the intent of the voter, but Palm Beach used the clear intent of the voter and found hundreds of ballots that they could discern the clear intent of the voter from that were not machine read.

Now, in doing so, they were applying Florida law, and like the law of many states, it has a general standard, not a specific standard.

Justice O'Connor: Were those dimpled or hanging chads, so to speak?

Mr. Boies: Well, what he testified is that you looked at the entire ballot, that if you found something that was punched through all the way in many races, but just indented in one race, you didn't count that indentation, because you saw that the voter could punch it through when the voter wanted to.

On the other hand, if you found a ballot that was indented all the way through, you counted that as the intent of the voter.

Justice O'Connor: With no holes punched?

Mr. Boies: With no holes punched, but, but where it was indented in every way.

Justice O'Connor: That was counted as proper in...

Mr. Boies: In Palm Beach.

Justice O'Connor: Palm Beach.

Mr. Boies: Another, another thing that they counted was he said they discerned what voters sometimes did was instead of properly putting the ballot in where it was supposed to be, they laid it on top, and then what you would do is you would find the punches went not through the so-called chad, but through the number.

Justice O'Connor: Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes?

I mean, it couldn't be clearer.

I mean, why don't we go to that standard?

Mr. Boies: Well, Your Honor, because in Florida law, since 1917, Darby against State, the Florida Supreme Court has held that where a voter's intent can be discerned, even if they don't do what they're told, that's supposed to be counted, and the thing I wanted to say about the Beckstrom case is that was a case that used optical ballots.

Voters were told, fill it in with a number two pencil.

Several thousand didn't.

They used everything else, but not a number two pencil.

And so the machine wouldn't read it.

It was voter error.

The Supreme Court in 1998, well before this election, said you've got to count those votes.

And in fact, they counted those votes even though the way the canvassing board dealt with them was to go back and mark them over with a big black marker, which made it impossible to check whether the canvassing board had really just marked over the ballot or had put a new mark on the ballot.

Justice Scalia: Mr. Boies, can I come back to this discrepancy between Palm Beach and Broward County?

I'm reading from footnote 16 of the Florida Supreme Court's opinion.

On November 9, 2000, a manual recount was requested on behalf of Vice President Gore in four counties... Miami-Dade, Broward, Palm Beach, and Volusia.

Broward County and Volusia County timely completed a manual recount.

It is undisputed that the results of the manual recounts in Volusia County and Broward County were included in the statewide certifications.

Mr. Boies: Yes, Your Honor.

Justice Scalia: And those statewide certifications the Supreme Court ordered to be accepted.

So it is... the Supreme Court, while applying a standard of supposedly de novo review of the certifications, is requiring the Circuit Court to accept both Broward County, which does one thing with dimpled ballots, and Palm Beach County, which does something clearly different.

Mr. Boies: Your Honor, the de novo review is in the contest phase, and neither Volusia County nor Broward County was a contest filed.

What the Supreme Court holds is that you've got de novo review in a contest.

A contest relates to specific ballots that are contested.

The ballots in Broward and Volusia were not contested by any party.

Justice Scalia: But the determination that the circuit court has to make about whether it's necessary to have a recount is based upon the certifications.

Mr. Boies: No.

It's only based on the...

Justice Scalia: Which he then accepts...

Mr. Boies: No.

It's only based on the certifications that are contested.

In other words, if you are going to order the manual review of the ballots, the issue is what ballots are contested, and second, is there a judicial review of those ballots.

Justice Scalia: You have to know how close the state election was, don't you?

Mr. Boies: Yes.

But you...

Justice Scalia: For which purpose you'll accept the certifications.

Mr. Boies: Yes.

That's true.

Justice Scalia: And here...

Mr. Boies: And you had a certification.

Justice Scalia: And here you are telling him to accept it not de novo, but deferring to Broward County.

Mr. Boies: I think what the Supreme Court is saying is you have got a certification.

That certification shows a certain vote total.

Now, you take that certification until it is contested, and it can be contested by either or both parties.

You do not have, until it is contested, you do not have contested ballots.

Once have you contested ballots, then going back to State against Williams, Nuccio against Williams in 1929, cited in our papers, then it becomes a judicial question, and what the court holds is you then look at that as a judicial matter and that is why you have going on in Leon County the review of the Miami-Dade ballots under the court's supervision.

Now, I would point out that we asked to have the Miami-Dade ballots reviewed.

We also asked to have the 3,300 Palm Beach ballots reviewed, but the supreme court said no to us on that.

They said yes, you can have the 9,000 Miami-Dade ballots reviewed.

They also said, which we didn't ask for, they said as a matter of remedy, we want to review the undervotes all around the state.

Chief Justice Rehnquist: Mr. Boies, one of the dissenting justices in the Supreme Court of Florida said that meant 177,000 ballots.

Was he correct in your view?

Mr. Boies: No.

That is a result of adding the so-called undervotes that were mentioned and the so-called overvotes that were mentioned.

Either an undervote where no vote registers for president or an overvote where two or more registers for president are discarded, because you can't vote twice, and if you vote not at all, and in either circumstance, your vote doesn't get counted.

Chief Justice Rehnquist: So if you disagree that 177,000 ballots will be involved in this recount, how many do you think there are?

Mr. Boies: It's approximately 60,000, I think, Your Honor.

It turns out to be less than that because of the recounts that have already been completed, but I think the total sort of blank ballots for the presidency start at around 60,000.

Justice Stevens: Mr. Boies, can I ask, ask you this question.

Does that mean there are 110,000 overvotes?

Mr. Boies: That's right.

Justice Stevens: And if that's the case, what is your response to the Chief Justice of Florida's concern that the recount relates only to undervotes and not overvotes?

Mr. Boies: Well first, nobody asked for a contest of the overvotes, and the contest statute begins with a party saying that there is either a rejection of legal votes or an acceptance of illegal votes.

Justice Kennedy: But as a matter of remedy it's ordered a statewide recount in counties where the ballots were not contested, and that's where I'm having some difficulty, and it goes back to, in part to your answer that you gave to Justice Stevens... Justice Scalia about Broward County, and in part to the answer you are giving to Justice Stevens now.

Why is it that you say on the one hand to Justice Scalia, oh, well, these weren't part of the contest, but now all of a sudden we are talking about statewide, not all of which were contested, but we are not talking about the overvotes?

Mr. Boies: Two parts to the answer.

The reason that I said what I did to Justice Scalia was that I think that if this Court were to rule that there was something wrong with the statewide recounts, that they were being done by canvassing boards as opposed to directly by the court, or because the court was not supervising the particular expression of voter intent, what the court would have done is simply cut back on a remedy that we didn't ask for.

The second part is that when you are dealing with overvotes, remember, this is a machine issue.

When you are dealing with overvotes, the machine has already registered two votes.

Now, there may be another vote there, a dimpled vote or an indented vote that the machine did not register.

But once you get two votes, that ballot doesn't get counted for the presidency.

Justice Breyer: They gave an example.

The example they gave in their brief was there is a punch for Governor Bush, and then there is a punch for write-in and the write-in says I want Governor Bush and so I think their implication is that that would have been rejected by the machine, but if you looked at it by hand the intent of the voter would be clear.

Now I don't know if there are such votes, but they say there might be.

Mr. Boies: There is nothing in the record that suggests that there are such votes.

If anybody had contested the overvotes, it would have been a relatively simple process to test that because you could simply test it as to whether the double vote was a write-in vote or was another candidate.

Chief Justice Rehnquist: I gathered from the opinion of the Supreme Court of Florida that the Vice President did not ask for as broad a recount as the Supreme Court granted, but that it thought that to do just what he wanted would be unfair and therefore out of fairness, they granted the wider recount, am I correct in that?

Mr. Boies: I think that's right.

I think that's the way I would interpret it, Mr. Chief Justice.

Justice Scalia: Mr. Boies, I have one other perplexity about the scheme that's been set up here.

What... there is a very, as you point out, there is scant statutory provision concerning, concerning the contest.

There is quite detailed statutory provision concerning the protest period.

And it tells everybody how to act and time limits and all of that.

Why would anyone bother to go through the protest period, have these ballots counted by the canvassing boards, have them certify the results?

Why go through all that when the whole thing begins again with a contest?

There is no, no... once a contest filed, the certification is meaningless.

What advantage is there to win the protest?

Mr. Boies: It's not meaningless.

It becomes the baseline, and in every contest that has ever taken place, including this one, that has been the baseline that has determined 99-plus percent of the votes, and what is contested are simply those ballots that during the protest phase have been identified as disputed ballots, so that the, the protest phase solves 99 percent of the election or more.

What is left over are those ballots that one side or the other has contested, and that's what the contest deals with.

Justice Kennedy: My concern is that the contest period as we have been talking about requires the setting of standards, judicial review, and by reason of what I take it to be your earlier position in the litigation, this period has been truncated by 19 days, causing the time frame of which we are all so conscious, making it difficult for appellate review, and it seems to me, and we are getting back to the beginning of this, that the legislature could not have done that by a statute without it being under law, and that neither can the Supreme Court without it being a new law, a new scheme, a new system for recounting at this late date.

I'm very troubled by that.

Mr. Boies: But, Your Honor, at this... leaving aside the prior case about the extension of the time for certification, which I think at this stage you have to leave aside because at the contest stage, what you are doing is you are contesting specific ballots whether or not they were included in the certification.

It's absolutely clear under Florida law that that's what the contest is about, so at the contest stage, the only question is can you complete the contest of the contested ballots in the time available?

Everything that's in the record is, that we could have and indeed we still may be able to, if that count can go forward.

Chief Justice Rehnquist: Including appeals to the Supreme Court of Florida, and another petition to this Court?

Mr. Boies: Excuse me, Your Honor?

Chief Justice Rehnquist: I said after the circuit judge says that the contest comes out this way, surely there is going to be an appeal to the Supreme Court of Florida and likely another petition to this Court.

Surely that couldn't have been done by December 12th, could it?

Mr. Boies: Your Honor, I think, I think the appeal to the Florida Supreme Court could have and indeed the schedule that was set up would have made that quite possible.

There is about another day or so, except for, except for four or five counties, all of the counties would be completed in about another day.

And maybe even those counties could be now because as I understand it some of them have taken advantage of the time to get the procedures ready to count.

Chief Justice Rehnquist: Just a minute, Mr. Boies.

Wouldn't the Supreme Court of Florida want briefs and wouldn't the parties have needed time to prepare briefs?

Mr. Boies: Yes, Your Honor, but as we did in this Court, we have done in the Florida Supreme Court a number of times and that is to do the briefs and have the argument the next day and a decision within 24 hours.

Justice Scalia: After the counts are conducted in the individual counties, wouldn't the Leon County circuit judge have to review those counts?

After all, it's... I mean, the purpose of the scheme is to have a uniform determination.

Mr. Boies: To the extent that there are contested or disputed ballots...

Chief Justice Rehnquist: Right.

Mr. Boies: I think that may be so, Your Honor.

Justice Scalia: Well, wouldn't that take a fair amount of time and is that delegable?

I assume he would have to do that personally.

Mr. Boies: We believe that it could be done in the time available.

We also believe that we have available to us the argument that says you finished what we contested.

Although the supreme court has said as a matter of remedy it would be a good idea to do these other things that nobody asked for, that if it gets down to the point where you can... you have done the contest and you simply have not gotten completed all of this other remedy under 168 subsection 8, that we are still entitled under settled Florida law to have our votes counted.

Chief Justice Rehnquist: The supreme court said you had to do it all in the interest of fairness.

Mr. Boies: I think that what...

Chief Justice Rehnquist: I thought you agreed with me on that a moment ago.

Mr. Boies: I did, Your Honor.

I think that what they were saying is that as a matter of remedy this is the fairest way to do it.

I don't think they were saying that it would violate fundamental fairness to only take into account what you could get done in the time available.

There's nothing in the Supreme Court opinion that would suggest this.

Justice Scalia: Mr. Boies, would you explain to me again how the protest and the contest fits in.

You said that the... let's assume that my complaint that I want to protest is the failure to do undercounts to those ballots that were undercounted, okay?

That's my protest.

Mr. Boies: Right.

Justice Scalia: Why would I ever bring that in a protest proceeding?

Why wouldn't I just go right to the contest because it doesn't matter whether I win or lose the protest proceeding.

It's de novo at the contest stage.

What possible advantage is there to go through the protest proceeding?

Mr. Boies: If you've identified the ballots, you could presumably wait and do it at the contest phase.

There's no particular advantage to doing that.

The fact...

Justice O'Connor: I thought the advantage might be as described in the Florida case, Boardman v. Esteva, saying that the certified election returns which occur after the protest period are presumptively correct, and they must be upheld unless clearly outside legal requirements.

I thought that was Florida law.

Mr. Boies: Your Honor...

Justice O'Connor: Which would make it important to have a protest.

Mr. Boies: I think that's right.

I think that is right.

I would point out that...

Justice O'Connor: I think the Florida court has sort of ignored that old Boardman case.

Mr. Boies: Your Honor, I think the Boardman case relates not to the counting of votes, it has nothing to do with the standard in terms of the intent of the voter.

The Boardman case, the language that you're referring to is at page 268 of the Southern Reporter report of that case, and what is clear from that page and that discussion is it's dealing with the issue of whether or not because the canvassing board threw away the envelopes from the absentee ballots so they could not be checked, whether that invalidated the absentee ballots, and the court says no, it doesn't, because it's important to count all these votes, and because we assume that what they were doing was proper.

That does not, I respectfully suggest, at all deal with the question of deference to the voter intent determination which the court has repeatedly said is a matter for judicial determination.

The other thing that I would say with respect to intent is I know the Court is concerned about whether the standard is too general or not.

Some states have made specific criteria their law.

Other states, not just Florida... 10 or 11 of them, including Massachusetts, in the Dellahunt case that we cited, has stuck with this very general standard.

Justice Kennedy: All right, let's assume...

Mr. Boies: There's a sense where that may be an Article II issue.

Justice Souter: Mr. Boies, let's assume that at end of the day the Leon County, Florida judge, gets a series of counts from different counties, and they heard those counties have used different standards in making their counts.

At that point, in your judgment, is it a violation of the Constitution for the Leon County judge to say, I don't care that there are different standards as long as they purported to fall on intent of the voter, that's good enough.

Chief Justice Rehnquist: I'll extend your time by two minutes, Mr. Boies.

Mr. Boies: Yes.

I do not believe that that would violate the equal protection of due process clause.

That distinction between how they interpret the intent of the voter standard is going to have a lot less effect on how votes are treated than the mere difference in the types of machines that are used.

Justice Souter: Then the fact that there is a single judge at the end of the process, in your judgment, really is not an answer to the concern that we have raised.

Mr. Boies: No, I think it is an answer.

I think there are two answers to it.

First, I think that the answer that they did it differently, different people interpreting the general standard differently, would not raise a problem even in the absence of judicial review of that.

Second, even if that would have raised a constitutional problem, I think the judicial review that provides the standardization would solve that problem.

The third thing that I was saying is that any differences as to how this standard is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida.

There are five times as many undervotes in punch card ballot counties than in optical ballot counties.

Now, for whatever that reason is, whether it's voter error or machine problems, that statistic, you know, makes clear that there is some difference in how votes are being treated county by county.

That difference is much greater than the difference in how many votes are recovered in Palm Beach or Broward or Volusia or Miami-Dade, so that the differences of interpretation of the standard, the general standard are resulting in far fewer differences among counties than simply the differences in the machines that they have.

Justice Ginsburg: Thank you, Mr. Boies.

Mr. Boies: Thank you very much.

Rebuttal of Theodore B. Olson

Chief Justice Rehnquist: Mr. Olson, you have five minutes 13 remaining.

Mr. Olson: Thank you, Mr. Chief Justice.

I would like to start with a point or two with respect to the equal protection due process component of this case.

The Florida Democratic Party on November 20 was asking the... november 20th of this year, was asking the Florida Supreme Court to establish uniform standards with respect to the looking at and evaluating these ballots, a recognition that there were no uniform standards and that there ought to be.

Last Tuesday in the 11th Circuit, unless I misheard him, the attorney for the Attorney General of Florida said that the standards for evaluating these ballots are evolving.

There is no question, based upon this record, that there are different standards from county to county.

Justice Ginsburg: And there are different ballots from county to county too, Mr. Olson, and that's part of the argument that I don't understand.

There are machines, there's the optical scanning, and then there are a whole variety of ballots.

There is the butterfly ballot that we've heard about and other kinds of postcard ballots.

How can you have one standard when there are so many varieties of ballots?

Mr. Olson: Certainly the standard should be that similarly situated voters and similarly situated ballots ought to be evaluated by comparable standards.

Justice Ginsburg: Then you would have to have several standards, county by county?

Mr. Olson: You're certainly going to have to look at a ballot that you mark in one way different than these punch card ballots.

Our point is, with respect to the punch card ballots, is that there are different standards for evaluating those ballots from county to county and it is a documented history in this case that there have been different standards between November 7th and the present with respect to how those punch card ballots are evaluated.

Palm Springs is the best example.

They started with a clear rule which had been articulated and explained to the voters, by the way, as of 1990.

Then they got into the process of evaluating these ballots and changed the standard from moment to moment during the first day and again, they evolved from the standard that the chad had to be punched through to the so-called dimpled ballot standard, indentations on the ballot.

There was a reason why that was done.

It was because they weren't producing enough additional votes so that there's pressure on to change the standards.

And that will happen in a situation which is where the process is ultimately subjective, completely up to the discretion of the official, and there's no requirement of any uniformity.

Now, we now have something that's worse than that.

We have standards that are different throughout 64 different counties.

We've got only undercounts being considered where an indentation on a ballot will now be counted as a vote, but other ballots that may have indentations aren't going to be counted at all.

The overvotes are in a different category, and in this very remedy the ballots in Miami-Dade are being treated differently.

Some of them have been all examined and the balance of the process, the remaining 80 percent will be looked at only in connection with the undercounts.

Justice Ginsburg: Mr. Olson, do I understand that your argument on the equal protection branch would render academic what was your main argument that's troublesome, that is that we must say that the Florida Supreme Court was so misguided in its application of its own law that we reject that, and we, the Supreme Court of the United States, decide what the Florida law is?

Mr. Olson: I'm not sure I know the answer to that question, whether that would render academic the challenge.

There is a clear constitutional violation, in our opinion, with respect to Article II because virtually every aspect of Florida's election code has been changed as a result of these two decisions.

Justice Ginsburg: But the Florida Supreme Court told us that it hasn't been changed and just looking at one of the cases that you cite frequently, the O'Brien against Skinner case, this court said, well, maybe we would have decided the New York law differently but the highest court of the state has concluded otherwise.

It is not our function to construe a state statute contrary to the construction given it by the highest court of the state.

Mr. Olson: The only thing I can say in response to that is that what this Court said one week ago today, that as a general rule the court defers to a state court's interpretation of a state statute, but not where the legislature is acting under authority granted to it by the Constitution of the United States.

The final point I would like to make is with respect to section 5.

It is quite clear that the court in both the earlier decision and the decision last Friday was aware and concerned about compliance with section 5.

It construed section 5 in a way that allowed it by labeling what it was doing as interpretation to change in dramatic respects the Florida election law, and we submit because it did, so misconstrued the applicability not only with respect to finality but the other part of section 5 requires a determination of controversies pursuant to a set of laws that are in place at the time of the elections.

Justice Breyer: If you start with the premise, a clear intent of a vote should count, where there's a clear intent on the ballot, it should count as a vote, can't you reasonably get the majority's conclusion?

Mr. Olson: I don't believe so because we know different standards were being applied to get to that point, and they were having different results.

Chief Justice Rehnquist: Thank you, Mr. Olson.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Gutierrez v. Ada - Oral Argument

Fri, 09 Jan 2009 14:50:19 +0000

Case:

Gutierrez v. Ada

Media File:

99-51_19991206-argument.mp3

Related Transcript:

1999_99_51_argument.xml

Transcript:

Argument of Seth M. Hufstedler

Chief Justice Rehnquist: We'll hear argument next in No. 99-51, Carl C. Gutierrez, Bordello... Bordallo... pardon me... v. Ada/ Camacho.

Spectators are admonished.

Do not talk until you get out of the courtroom.

We've still got a Court going here.

Wait till you get outside to talk.

Mr. Hufstedler.

Mr. Hufstedler: Mr. Chief Justice... excuse me... and may it please the Court:

The issue before us this morning is whether Guam has already elected its current Governor or whether there must be a runoff election, and that depends, as you well know, on whether a majority is determined by counting the votes which have been cast in the gubernatorial race or whether, according to the respondents in the Ninth Circuit, we should could all of the ballots which were, in fact, issued in the general election, along at the same time, and then determine whether or not there was a majority.

The net result of going along with what the Ninth Circuit has decided and what the respondents contend is that there are three suspect categories of votes which would be included in determining what constitutes a majority that were not votes cast in the gubernatorial race for one candidate.

The first was 1,313 ballots on which there was no vote for the Governor at all.

The second was 609 ballots which were invalid because the voter voted for both slates, contrary to the statutes of Guam, and it was impossible to determine their choice.

And then there was a third category of 1,019 votes on which the voter checked the box saying that the voter wanted to vote for a write-in candidate, but then didn't write in a candidate.

So, another 1,000 ballots which were, in effect... in effect, blank ballots in... in the race for Governor.

But on those ballots presumably... the record doesn't show... but presumably people turned in ballots on which they had voted in other races, but not the gubernatorial race at all.

The net result of all of those votes was that the Gutierrez slate received some 24,250 votes and the Ada slate received 21,200.

So, there was a...

Chief Justice Rehnquist: Where can we find the statute in the materials before us, Mr. Hufstedler?

Mr. Hufstedler: The... the governing statute 1422?

Chief Justice Rehnquist: Yes.

Mr. Hufstedler: That's in... the statute is quoted in the blue brief, in the initial brief, on the statutes involved, and it's also quoted in the initial argument.

Chief Justice Rehnquist: Thank you.

Mr. Hufstedler: The statute is first shown on page 2, Your Honor.

Chief Justice Rehnquist: Thank you.

Mr. Hufstedler: And that's the one in the opening brief and that governs it.

So, the net result is there was something like a 3,000 vote margin, which is really quite a comfortable margin in many elections which are so close these days.

Here, if the Ninth Circuit and the respondents are correct, the result is going to change in determining a... it will change in this case, but can change in any case depending upon how enthusiastic many people are about coming in and voting for the school board members, grass roots kind of campaigns which will bring in a lot of people, or the legislature.

And if that brings in a lot of people to vote in those two races, then the... the barrier becomes much higher as to how many votes somebody has to get to be elected Governor.

And that's a nonsensical kind of proposition.

Justice Kennedy: And I take it you'd then have to have a... a second election under the Ninth Circuit's view even though only two people were running in the first place and it'd be among the same two people.

Mr. Hufstedler: Absolutely and specifically, that's exactly what they said, Justice Kennedy.

Justice O'Connor: Mr. Hufstedler, as a preliminary matter, would you clarify for us the status of some case pending now before the Guam Supreme Court that affects this case?

Mr. Hufstedler: Be happy to, Your Honor.

That case was set, as I think the footnote indicates... had been set to be argued last week, or at least the last week of November, and that was continued over to the next session, which presumably will be in February in Guam, awaiting apparently the decision of this Court.

Justice O'Connor: And what... what are the issues before the court there?

Mr. Hufstedler: Two... two basic sets of issues.

The first issue is precisely this issue, and the court... trial court in Guam decided, contrary to the Ninth Circuit, that you looked at the votes cast in the gubernatorial election.

The second set of issues were a bunch of issues related to claimed fraud in connection with the election.

And that took many days of trial, and with very extensive opinion by the trial judge, the trial judge found no proof whatsoever of any kind of misconduct.

And those are the issues on appeal in the Supreme Court in Guam.

Now, there's nothing in this statute at all to suggest that the determination of the... of the majority should depend upon what happens in some other elections.

You all recall well that this argument is based primarily on an assertion by the Ninth Circuit and now by the respondents that if the phrase, in any election, really means in any gubernatorial election, then it's... it's duplicitous.

Surplus was the word.

They used the word twice.

Surplus and nullity.

And therefore, the interesting proposition is that sub silentio the respondent in the Ninth Circuit concedes that if the phrase, in any election, was not in that statute, the statute means in any gubernatorial election.

It can't be surplus unless the statute already says that.

Then the statute says, in any election.

And they say, well, that means any gubernatorial election.

The statute already means that and it can't mean that, and so we have to throw all of this out, even though it said it twice, and go find some different kind of election that's going to determine this.

And they determined now, as you know, that it was the specific general election in which the gubernatorial... of which the gubernatorial election was a part.

It was that election.

Justice Ginsburg: But, Mr. Hufstedler, even if we agreed that in any election means in any gubernatorial election, why shouldn't the people who didn't vote for Governor be counted the same way as someone who voted for Donald Duck for Governor?

In other words, why shouldn't they be counted as people who said neither of the above, no one for Governor?

Mr. Hufstedler: The first proposition I think, Your Honor, is that there is no authority whatsoever for the proposition that a non-vote is something that should be counted in an election.

I find no authority anyplace.

There's none in any brief.

There's none in any opinion.

It's true that you can argue that...

Justice Scalia: The terms is votes cast.

I guess that... that would be the critical term, whether...

Mr. Hufstedler: Precisely.

Justice Scalia: whether if you vote for nobody, as opposed to voting for Donald Duck, you have cast a vote.

Mr. Hufstedler: That's precisely correct, Justice Scalia.

The term vote cast is used several times in the statute.

There's never any mention of the word ballot in the statute.

Chief Justice Rehnquist: It would... your case is stronger, is it not, by virtue of the use of the word votes rather than ballots?

Mr. Hufstedler: I think it clearly is.

I would certainly insist so, Mr. Chief Justice.

And of course, as I said, there's no place where they talk about ballots, only about votes cast.

But with respect to the question that Justice Ginsburg asked about voting for Donald Duck, I'd call to your attention the... the opinion of this Court in 1997, the Foster case, in which the Court was obligated to define what an election is.

It involved a Louisiana primary and the question was whether the Federal statutes fixing a date had fixed it so that you couldn't have a, quote, election really prior to that in the primary that determined the result.

And here's what Justice Souter said in that case, quoting from page 71.

When the Federal statutes speak of, quote, the election, unquote, of a Senator or Representative, they plainly referred to the continued actions of the voters and the officials meant to make a final selection of an officeholder.

Now, that's a key question.

We're... when we say election, we're talking about a single election in a contest to determine who is going to be that officeholder.

It isn't... we're not talking about a general election someplace.

We're talking about that specific election.

And then it goes on to say... well, I think it doesn't add further.

It quotes the American Dictionary defining election as, quote, the act of choosing a person to fill an office.

And that's entirely correct.

Justice O'Connor: Mr. Hufstedler, I guess the Ninth Circuit was persuaded by what it read into the words, in any election...

Mr. Hufstedler: Absolutely.

Justice O'Connor: that phrase in section 1422.

Mr. Hufstedler: Absolutely.

Justice O'Connor: Now, if that phrase were entirely omitted from the statute, would it make any difference in your view?

I mean, or would the results still be the same?

Mr. Hufstedler: Perfectly appropriate question, and it might very well be the same.

I would certainly argue that if the phrase, in any election, weren't there, the only logical answer is that it means that you count those votes in the gubernatorial election.

And, of course, that's precisely what the Ninth Circuit assumed.

It would never be surplus if that weren't the case, but...

Justice Breyer: Well, I thought that they were... sorry.

Finish it.

I... I didn't mean to...

Mr. Hufstedler: Thank you.

But it isn't... it isn't entirely surplus.

It does add something.

What it says, and it says very clearly, is in any gubernatorial election, you will use this standard, that there must be a majority of the votes cast in that election.

And what it adds is this.

The Ninth Circuit argued that we were really looking only at a single election.

We were looking at that one election at which everything was included, and therefore that specific election was the one.

That reads out the word any.

What this says in any is, in any election, the first one in 1970, which is included in the statute, or any election quadrennially, 4 years after, in any one of those elections... there have now been eight, and presumably they will go on indefinitely.

In any one of those elections every 4 years, you apply this standard.

Now, that's not said in the statute anyplace else, and that's what this statute adds.

Therefore, it's not a nullity.

It says clearly there's something else here.

In any election refers to those future elections.

So, there's a universe of them.

Now, any requires a universe, but the argument of the Ninth Circuit ruled out any argument of a universe.

They said, we have to look at all of the ballots returned in that specific general election of which the gubernatorial election is a part.

Now, there's no universe there.

The word any is read out by the Ninth Circuit decision.

Justice Breyer: Does it mean... probably not, but I'm just... but the... imagine on a particular day we get our ballot and there are 14 different offices.

And they're thinking that any election... they're calling Governor one election; Lieutenant Governor, another election; Secretary of State, a third election, whatever.

And so, there are 14 different elections being hold on that one day, and they're thinking in any election means you look at all the ones.

You see, you look at all 14, and that's why they look to the whole ballot.

Mr. Hufstedler: Well, that would be 14 elections I think...

Justice Breyer: Yes.

And so, in any... so, it has to be a majority of them cast in any election.

Mr. Hufstedler: Sure.

Justice Breyer: So... so, we look and see how many people filled out ballots because that's the number cast in any election.

There were 14 on that day, and the total number... I don't want to be too clever about it, but I want to...

Mr. Hufstedler: I understand that.

Precisely.

But I would say nobody knows from this record.

All we know is that the total number of ballots issued were 46,666.

We don't know how many people voted for each of the people in the school board.

You know, there were a whole bunch of candidates for the school board.

We don't know how many people voted in each of the elections for the legislature.

None of that's in the record.

Never... never appeared, never argued, never made a point.

Justice Kennedy: But I...

Mr. Hufstedler: The only point was that there was a total of 46,666 ballots issued and whether people voted on them or not, they were returned, and therefore we ought to use that for a majority.

Justice Kennedy: I suppose under the respondents' theory... well, I can ask respondent... but it seemed to me that it... it could be that 1,000 people were very interested in the school board, and a different 1,000 were very interested in the water bonds.

So, you'd have to, I take it, count those people... multiply the sum of those people, to get the number of ballots cast in the election as the respondents...

Mr. Hufstedler: Precisely what happened.

Precisely what happened.

They took the total.

And... and it illustrates the point, Justice Kennedy, that how many people voted in this election depended on their enthusiasm about a whole bunch of other things.

They could have gotten involved in a grass roots campaign about who was going to be on the school board, and so they came in and voted for that race and they didn't care who was Governor.

We know 1,313 didn't care who was Governor.

Justice Kennedy: Are there any cases you've found where if... if there's fraud in one contest, Governor... for the Governor, that the... the entire ballot is thrown out for all other issues?

Mr. Hufstedler: No.

The only thing I guess I have to bear on that is there is a statute in Guam, which is in the materials, which points out that if... if a ballot is invalid because it's voted improperly, the... in that race you don't count it, but you still count the ballot for other purposes.

But I... I don't know of any case that dealt with that problem, Justice Kennedy.

So, let me go back one last shot at the question Justice Ginsburg asked me a few minutes ago because there is another case dealing with somebody who wanted to vote for Donald Duck as a write-in, and that was the Hawaii case you will remember, the Burdick case.

And here, the question was what is the vote about.

And the Court said... and I'm now at page... whatever... 436 of the U.S. Reports... the function of the election process is to winnow out and finally reject all but the chosen candidates.

Now, that's what the Foster case says.

That's what the other cases say.

We're really trying to select a candidate for the officeholder in a particular race.

Not to provide a means and giving vent to, quote, short-range political goals, pique, or personal quarrels.

In other words, if a vote for Donald Duck is intended to say, gee, I don't like anything that's going on here, the voter can go out and say that, but that's not a vote cast and that's not what the election is about.

The election is about electing a candidate, and a vote for Donald Duck doesn't do that and it doesn't constitute effectively a vote cast.

So, it seems to me that we really must come back, as Justice Scalia indicated a moment ago, to deal with the phrase what is a vote cast.

And I would like to... to deal specifically with the response that... that the respondents have come up with about that because you remember they said, which to me is quite an amazing thing, without any kind of an authority, and that is ballots and votes are fungible.

That's their word.

Fungible.

There's no difference between a ballot and a vote.

Now, I don't think that proposition has to be argued at all.

We all know what a ballot is.

We all know what a vote is.

And we all know they are very different.

And to illustrate in this case, the number of ballots returned was clearly 48,666.

The number of votes cast in that general election was over a million.

And therefore, if we count all the votes cast in that general election, that reaches the absurdity that everybody has agreed nobody could have.

It would take 500,000 votes to be a majority in a race in which the only number of votes cast was less than 50,000.

So, it can't mean that.

And clearly also, the votes cast in the gubernatorial election were 45,535.

The votes cast for the two candidate slates and the 275 votes cast for legitimate write-in candidates.

Those were the total votes cast.

And clearly there was a majority, a 53 percent majority, that the Gutierrez slate obtained.

Now, let me point out a couple things which illustrates Congress knows the difference between a vote and a ballot.

If a Congressman or a Congresswoman didn't know the difference between a ballot and a vote, I suspect they wouldn't be in Congress because they know that as well as anybody.

But let me illustrate it by looking, for example, at section 1722, which is quoted in the text.

It... the text also appears on page 19 of... of our opening brief and the preceding statute on the same subject, 1719, appears on page 18 of our brief.

But there what... this was a statute reenacted in 1998.

I'll tell you what it said before that in a moment.

But it says, the delegate... now, we're talking about delegates now, not... not the gubernatorial race because, you remember, the delegates was one of the other races that was involved in this general election.

The delegate from the Virgin Islands shall be elected at large by separate ballot by a majority of votes.

Any question that Congress knows what a ballot and a separate ballot is and what a vote is?

I mean, they're using them there in the same sentence to mean obviously different things.

Justice Scalia: Yes, but they... they did go on to say by a majority of the votes cast for the office of delegate.

Mr. Hufstedler: Well, you're quite right.

They certainly did.

Justice Scalia: That... that is one of the points against your case...

Mr. Hufstedler: Well...

Justice Scalia: that... that in this statute where they intend to limit the vote cast to those cast for that office, they say so.

Mr. Hufstedler: Yes.

Justice Scalia: And the implication is that where they don't say that, they... they don't mean to limit it to... to the votes cast for that office.

Mr. Hufstedler: And I think that's quite right.

I think that's quite right, Justice Scalia.

And they do say the votes cast for the office.

But let me go back to my point and I'll come back to this point.

They know the difference between a ballot and a vote, and to say they're fungible, it just seems to me to be an argument that can make no sense.

Justice Scalia: Yes, it does... does seem to indicate...

Mr. Hufstedler: Now, the question about this statute also saying, well, we talked about the majority of votes cast for the office of the delegate.

Sure, it says that.

But can't you draw the inference just as easily that when they're talking about counting a majority, in general they're talking about a majority of votes for that office?

They say it in one case and they don't say it in another, but they don't give you a different view either and that they... they really are looking at what the votes were in connection with that office.

Justice Breyer: Doesn't... doesn't your view, which makes sense of every word, make still the words, in any election, surplus?

Because... because if you... if you didn't have those words there in your view of the statute, the statute would obviously apply to the 1970 election, the 1974, the 19... that's what they're talking about.

Mr. Hufstedler: Well, I think... I think you're right about that, Justice Breyer, but it doesn't say it applies to all of those elections until you put in the in any election.

Justice Breyer: Did anyone doubt it?

Mr. Hufstedler: I don't doubt it.

Justice Breyer: Even without those words?

Mr. Hufstedler: I don't doubt it, that that's what it means.

But it makes it clear... and it says it clearly.

And let me go to the next step.

So, we have a statute which we all think... we thought applies directly to this question of counting the votes in the gubernatorial election, and then we have a sentence that says it's going to be in all of the elections.

And you can argue a little bit about whether that's really surplusage or not.

But is there a principle that says when you look at the context of the statute and it means X, and then you have a sentence, which is different from the rest of the statute, which also means X, that therefore the statute can't mean X, that therefore we have to go find something entirely different?

It says it twice.

It ought to mean it when it says it twice.

It isn't a question of, well, there's nothing in here about counting the votes in the general election.

But let's go back and find out what we can and, boy, let's try the general election because that's different.

There's nothing in the statute that says you use the votes in the general election, and that's something that's just... just dreamed up.

So, the fungibility argument I think will not stand, and the result is, it seems to me, that this argument falls whether you approach from the beginning or the end.

If you approach the beginnings, the words in any election are a nullity and surplus.

It seems to me that can't read whether... whether you follow the... the point that it really is a repetition or it isn't, it can't mean that you come up with an entirely different answer.

So, the nullity position won't stand.

Secondly, with regard to the question of fungibility, there's nothing in here that says you count ballots returned.

It says you count ballots... votes cast.

And therefore, if you're counting ballots... you're counting votes cast in the general election... and the court says specifically you count all the votes in the general election... then you reach the absurdity.

You have to have 500,000 votes for your majority and you don't have it.

So, the result is that you can't reach it from the back because it's not fungible and you don't get an answer anybody could accept.

And you can't reach it from the front because, whether or not it's a nullity, the statute still means this and even if it... and we think it isn't a nullity because it does add something and it says it in a different way.

I guess the last thing I would say is... and try to reserve some little time, if there is any left... that... and the statute I've given you, 1710... or 1712... it used to provide that there had to be a separate ballot in Guam and in the Virgin Islands for an election for delegate.

Then in 1998, it was changed to say that you didn't have to have a separate ballot in Guam, but not the Virgin Islands.

The Virgin Islands still has to have two ballots.

Now, if you follow what the Ninth Circuit said literally, that would be creating a whole new realm for litigation, and you'll get one for certain from the Virgin Islands next time because now you have... assume the numbers which are wrong, but assume you're dealing again about... with about 45,000 voters.

You're going to have 45,000 ballots for the delegate, and you're going to have 45,000 ballots for the other races.

So, you're going to have 90,000 ballots returned.

Now, you have 90,000 ballots returned.

The majority is 45,000, and that's all the voters you've got.

Nobody will ever win an election in the Virgin Islands if that's the rule that is applied.

If I may, I'd like to reserve the rest of my time.

Argument of Dennis P. Riordan

Chief Justice Rehnquist: Very well, Mr. Hufstedler.

Mr. Riordan, we'll hear from you.

Mr. Riordan: Mr. Chief Justice, and may it please the Court:

Respondent Ada would be the first to concede that Congress could have written a statute that required only a majority of those who voted for Governor as opposed to a majority of those who participated in the general election.

Had it intended to do so, it would have used language that it has used, as Justice Scalia recognized, in other statutes dealing with elections in Guam.

I'll return to that point in a minute.

But I want to begin, where we always must begin in cases of statutory interpretation, with the statute itself.

And I want to begin with a critical subject about which my opponent has said nothing, which is the first sentence that defines a majority.

That first sentence...

Chief Justice Rehnquist: Where... where are you?

Mr. Riordan: Your Honor, I'm at... I'm going to refer to the second sentence of the statute.

The statute can be found at page 2 of the...

Chief Justice Rehnquist: Blue brief?

Mr. Riordan: cert petition or... or of the blue brief.

And the second sentence is... of the statute is the first that deals with the question of a majority.

And it reads, the Governor of Guam, together with the Lieutenant Governor, shall be elected by a majority of... of the votes cast... and here's the critical language... by the people who are qualified to vote for members of the legislature of Guam.

Let's stop right there.

That is our first definition of majority, and it compels the question, how many people qualified to vote for members of the legislature of Guam cast votes in the November 3rd, 1998 general election?

Chief Justice Rehnquist: Well, can't that be read as just saying that if you're entitled... something like the Federal Constitution... says if you're entitled to vote for the members of the lower... of the legislature of Guam, you're entitled to vote for Governor?

I... I think you don't have to put all the weight on it that... that you're putting.

Mr. Riordan: Your Honor, Mr. Chief Justice, that is true, but it is the definition of a majority.

And we know this.

The... the number of people qualified to vote for the legislature who voted in the general election is easily ascertained.

It is 48,666.

Justice Scalia: But it just repeats the same question you have in the next sentence, that is to say, when... when it says votes cast, does it mean votes cast for this office, or does it mean votes cast in the election generally?

I mean, it's the same problem that arises in the next sentence.

I... I don't think you advanced the ball much by... by saying that the same problem comes up twice.

Mr. Riordan: Well, Your Honor, I simply... but... but my point would be this.

Congress could have resolved this question dispositively in favor of the petition... the position of petitioners by simply adding the words, in the gubernatorial election.

Justice Breyer: Yes, but doesn't it obviously mean... I mean, doesn't it cut against you, that sentence?

Because as you read it, it says the Governor shall be elected by the majority of the votes cast by the people who are qualified to vote for legislature.

Mr. Riordan: Right.

Justice Breyer: They don't mean... they couldn't mean... votes cast by all the people on the island who are qualified.

So, therefore, they must mean votes cast for Governor.

Mr. Riordan: Your... Your Honor...

Justice Breyer: I mean, isn't it somewhere between obviously meaning votes cast for Governor or meaning just what Justice Scalia said, repeating the ambiguity?

Mr. Riordan: The... the reason it is not is that... is that we agree that... that after Cass and... and there is no case in this country that, absent a very specific statutory provision, says that... that the relevant universe is... is eligible voters including those who stay at home.

But Congress made clear that it wasn't talking about eligible voters, all the eligible voters.

It was talking about the eligible voters who cast votes.

But... but had we had the term, for the office of Governor, the ambiguity would be resolved, and we do know that... that Congress has resolved this very ambiguity in two places related to this statute: one in 1422(a), which was passed on the same day

It dealt with the question of how many votes you need to recall a Governor.

And it stated that you need...

Chief Justice Rehnquist: Where... where do we find that, Mr. Riordan?

Mr. Riordan: 1422(a), Your Honor, is found at... in the beginning of the respondents' brief on the merits at page 2 I believe.

At page... in our... yes, in our... 1 and 2 of... of our statutes at issue.

And 1422(a) uses the language that, in order to recall the Governor, you must have two-thirds of the number of the people voting for Governor in the last preceding election.

So, Congress there very explicitly resolved any ambiguity by... by saying that when it was talking about two-thirds, as opposed to a majority, it was talking about two-thirds of the people voting for Governor in the last preceding election.

Had it taken those words, voting for Governor, which are found in 1422(a), and put them in 1422, it would have resolved this matter in favor of petitioners' petition.

Justice Stevens: Yes, but that doesn't explain this question that arises in my mind.

Why would they want the people who voted for Governor to be the universe in the recall situation and not be the universe in the direct election situation?

Mr. Riordan: Well, Your Honor, the reason...

Justice Stevens: And what is the policy reason behind it, that congressional choice?

Mr. Riordan: Well, a... the policy that suggests itself is that once a Governor is... is elected, the specific number of votes that... that were involved in electing him shall constitute the... the frame of reference if you're going to have to recall him.

It's... it's those... you want to make sure that... that you have a... a number that isn't simply a majority, but a super majority, to recall a... an official.

Justice Souter: But that's not the... maybe I'm... I don't have it in front of me.

I thought that would give you a... a lesser number to recall than would be necessary to elect.

Mr. Riordan: Oh, no, Your Honor.

Justice Souter: Where... where is it?

I didn't open it up.

I should have done that.

What page are you on?

Justice Scalia: It's here.

It's on...

Justice Stevens: Well, it would if... if a third of the... if instead of just a couple thousand in this election had a... you had a third of the total votes cast for blank and the Governor, then you could recall with the lesser number than you could elect in the first instance.

Mr. Riordan: Well, the... the reason that isn't... isn't... well, the... two-thirds... I cannot mathematically imagine a situation in which two-thirds of the number who actually vote for Governor are a... a smaller number than a... a majority of all of those...

Justice Stevens: Well, I just gave you a hypo with that... that example in it.

Say there are 100,000 who vote, and 40,000 don't vote for Governor.

They're just interested in the school board.

So, 60,000 elected the Governor... or voted for the Governor.

Two-thirds of that 60,000 could... could recall him even though it only took... 40,000 could recall him then.

Mr. Riordan: Right, but... but if 60,000 vote for Governor...

Justice Stevens: And it would have taken 51,000 to elect him.

Mr. Riordan: Your Honor, right.

It takes 51,000 to... to elect him.

But they have... I mean, these two statutes were passed as... as part of a package, 1422 and 1422(a).

Justice Kennedy: But Justice Stevens' initial question was why should the universe be different in... in the recall and the number of people who have to vote to put the Governor in office to begin with.

What... what would be the sense of that?

Mr. Riordan: Well, you're... you're requiring a super... well, the universe isn't different, Your Honor, in this sense.

It's... it's that you are going to require a majority of all who... who participate in the election.

Well, the two-thirds majority is going to be...

Justice Kennedy: Well, the universe is different in your view.

It's the same in petitioners' view.

Am I right?

Mr. Riordan: I'm sorry?

Justice Kennedy: The universe is different in your view, the same in petitioners' view.

Right?

Mr. Riordan: Yes.

The... the universe is different.

The universe is different because the terminology is different.

But... but the rule of this Court has been, as in the Bates case, that... we were dealing there with statutes on student loans, and the defendant in that case argued that an intent to defraud element can be found in the... in a particular statute, 1097.

And the Court noted that 1097(d) expressly included that intent to defraud element.

And it... it said that you cannot have the express inclusion by Congress of an element in one part, its omission from a related part, and... and assume that Congress meant the same rule to apply or same language to apply to both because, as... as the Court said, where Congress includes particular language in one section of a statute, but omits it in another section of the statute, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion.

Justice Scalia: The key... the key word there is generally.

The... the problem I... I have with... with your case, Mr. Riordan, is that ordinarily where you have a choice, it seems to me you would interpret a runoff provision in such a manner that it will produce a conclusive runoff and not just a repeat of... of another stalemate in which nobody gets a majority.

And as you read this, this process could go on endlessly in which...

Mr. Riordan: That's...

Justice Scalia: in which nobody gets a majority of... of all the votes cast.

Mr. Riordan: That's... that's absolutely not the case, Your Honor, because the... the rule of... we don't have the question of how you would run a runoff before the Court.

It's obviously of interest to it in dealing with the question dealing with the general election.

But a runoff is a special election, Your Honor, and under the law that we've cited, a special election is not subject...

Justice Scalia: Does it have to be a special election?

Don't you think the... that... that Guam, if possible, would schedule it... you know, with some other elections that are... that are coming up?

Mr. Riordan: Absolutely not, Your Honor.

By... by the statutory provision itself, the runoff is supposed to be held within 2 weeks of the general election.

It is... it is most assuredly a special election.

The...

Justice Stevens: Do they have runoffs for other offices?

Can you have a runoff for another office like the school board under this law?

Mr. Riordan: I don't know the answer to that question, Your Honor.

Justice Stevens: Because if you could, presumably they could have it at the same time.

Mr. Riordan: I... I don't believe that there's any other election that is... is subjected to the provisions of 1422.

Justice Scalia: Where does it say that the runoff has to be a special election?

I mean, that... that the ballot... the ballot can include nothing but... but the... the candidates for Governor.

Mr. Riordan: It... it does not, Your Honor.

I think that, you know, the relevant language is the language which says when the runoff will occur, and the runoff will occur on the 14th day thereafter.

Now, the... the election of the Governor has to happen on the... on the general election which by statute is the first Tuesday after the first Monday in November.

So, any... any election held in... in mid-November is by definition a... a special election because a general election is defined by Guam law as only that election which takes place on the first Tuesday after the first Monday in... in November.

Justice Kennedy: Well, and isn't the answer that in that runoff election, the requirement is that the position goes to the person who has the highest vote?

There is no majority requirement in the runoff election.

Mr. Riordan: That's... that's absolutely correct, Your Honor.

It's... it's a race between two people.

Write-ins don't... write-ins are meaningless in... in a runoff.

There aren't... write-ins aren't permissible because a runoff is a runoff between two candidates.

So, if someone wrote in, it would not count.

A blank ballot...

Justice Stevens: It's really kind of ironic that they have a majority requirement when there are lots of candidates, and when there are only two, they don't call it a majority, even though it has to be a majority, as... as Justice Kennedy points out.

Chief Justice Rehnquist: They could tie.

Justice Stevens: Well, obviously...

Mr. Riordan: Well, I... I suppose theoretically they... they could tie, but that... that would happen...

Justice Stevens: They also used the word highest when they meant higher because there are only two candidates.

Mr. Riordan: But a...

[Laughter]

Again, the English teacher reappears.

[Laughter]

Under... under the statute... under the WEMA rule, the... the general American rule is that this rule that we are proposing that certainly was stated in many cases that you require a majority of all those who participate in the general election, that is a rule that does not apply to special elections.

Justice Scalia: Does... does any of those American cases that you cite involve an election for an office as opposed to a proposition or... see, it makes a lot of sense to... to interpret such a provision that is dealing with an initiative or some proposition to say it... it has to get a certain percentage of all of those voting in the election, whether they vote for the proposition or not, because you have to show that it has sufficient public support.

But I... you know, I... I don't think that would be the normal interpretation of the same language when you're talking about two candidates.

Mr. Riordan: Let me... let me answer that question very precisely.

Does any of the cases that we cite in our brief involve application of this rule to the election of a candidate?

No.

Are there cases that involve this rule... applying this rule to the application of a... to... to a race involving a candidate?

The Arizona case of Maxwell v. Fleming, 166 Pacific 2d, involves that at 831, which in turn relied on a Hawaii case applying the same rule to a primary election.

So, the... the cases are rare.

It... it is a far more common situation to have a proposition on which you may get a majority, 5,000 to 2,000, but there's 10,000 people that don't understand the proposition.

Many time you have 20 complicated...

Justice Scalia: That's right.

And... and...

Justice Kennedy: Do... do...

Justice Scalia: if that statute read, you know, it has to get a majority of the votes cast at the election, I would have thought that doesn't necessarily mean the votes cast with respect to the proposition.

Mr. Riordan: Right.

So, the rule is clear as to propositions, but it is applied in Maxwell v. Fleming.

I do not know of any case that holds that this is a rule that only applies to...

Justice Breyer: But do you agree that it makes much more... or there are certainly different and... and perhaps better reasons for applying that kind of rule in the case of a proposition or a bond issue, that sort of thing, different and better reasons from the reasons that would apply in... in an election of an official?

We don't have to have the bond issue.

We do have to have a Governor.

Why make it tough as... as tough to elect a Governor as it would be to... to issue bonds?

Mr. Riordan: Well, Your Honor, we would both agree that if the language of the statute reflects that choice by Congress, it is not for us to say that the policy inherently is wrong.

Justice Breyer: Absolutely, but if we're... if we're unclear about that, the philosophy of bond issues is different from the philosophy of elections.

Mr. Riordan: Here is why I would submit that it is not.

It is correct that propositions are more likely to be baffling.

There are likely to be more people ignorant of it, and you could apply a rule that says we want to make sure that there is an informed majority and not simply an informed minority that votes on this, so we're going to require a majority of those who come to the election.

But the same rule applies and the same policy whether... if it is the case that neither candidate inspires enough interest or voters feel sufficiently informed about either candidate, that there is some number... maybe it's 10, maybe it's 100,000... who don't feel qualified to cast a vote there...

Justice Scalia: I can understand it if... if the consequence would be we're going to bring in two other people...

Justice Souter: Yes.

Justice Scalia: and see if these... these other two can attract.

But all that happens is you bring in the same... the same two guys 2 weeks later.

Mr. Riordan: Your... Your Honor, I... I am reluctant to refer to the city in which I practice law as an example for this Court, but the fact of the matter is that 6 weeks ago a run-in candidate... a write-in candidate wound up forcing a... a... an election, a runoff election, in that... in San Francisco, and as a result of that, there has been a heightened period of scrutiny, there has been additional debates, there's been a... a much higher level of press and public attention to the race than existed in the original race.

And Congress could say, we opt for that kind of security.

If you as a candidate can't get 50 percent of the people who are clearly involved enough to show up and vote, we're going to force this heightened period of scrutiny that happens in runoff campaigning.

And... and it is true... it is true that it's the same two candidates, but... but it is very clear that Congress made that choice because, as... as petitioners concede, if you had 100,000 votes and one candidate had... had, you know, 49,999 and the other had all the other votes except for 10 and there were 10 write-in ballots, there is no question... and they concede... that you'd have to have a runoff between the two candidates.

There would not be a majority.

Everyone agrees that write-in candidate votes have to be counted in the relevant universe.

Justice Scalia: Is... I... I should know this point, but I'm... but I'm not clear on it.

Is it your position that even spoiled ballots have to be counted for purposes of this proposition, that is, one... one that votes for both parties or one that votes for neither or checks write-in but never writes in?

Are they to be counted too?

Mr. Riordan: It is the position of the Guam Election Commission that they are.

The...

Justice Ginsburg: But may I ask if that is academic in this case?

Because isn't it true that even if you counted all the overvotes, votes for both, and even if you cast all the write-ins as though they were cast for your client, that the opposing candidate would still win?

So, it's only the undervotes that have... that are the basis for your argument, that you would have to throw in the undervotes in order to make the... the winner 83 votes short.

Mr. Riordan: Right.

Justice Ginsburg: Is that right?

Mr. Riordan: Right.

Justice Scalia: Well, it's academic for this case, but it's not academic for the purpose for which I was asking the question...

Mr. Riordan: Absolutely not.

Justice Scalia: which is whether the runoff...

Mr. Riordan: Right.

Justice Scalia: will necessarily come up with a winner.

And it won't if you're counting all of the ballots cast because if you have... you know, you say it only takes 2 or 3 percent difference sometimes.

If you have 2 or 3 percent of spoiled ballots, you may have to have a second runoff.

And... and, you know, this can go on forever.

Mr. Riordan: Your... Your Honor, the... the Guam Election Commission... let me be clear about the history... included... there are 609 overvotes marked for both candidates.

They included all of those.

There are 1,294 write-in ballots.

They included all of those.

And there are 1,313 blank ballots for the Governor's race.

Justice Ginsburg is correct that you need to include all three categories in order for petitioners' candidate to not have a majority.

If... if you did not include blank ballots, if you did not include spoiled ballots, if you did not include write-in ballots, then... then petitioners' candidate would have a majority.

The Guam Election Commission included spoiled ballots and they included all write-in ballots.

There was no challenge to that in the district court.

They came up with the number 47,353 as opposed to 48,666.

So, the only...

Justice Ginsburg: But those... those ballots voted in the election for Governor.

They may have been...

Mr. Riordan: Right.

Justice Ginsburg: whether 1,313 didn't vote in that election.

And... and on the question of what election means, in any election is the first time election appears in... in the sentence if no candidate, but the next time it is referring to a runoff election, which is an election between the two sets of candidates.

So, why would the word election meaning... mean two different things in the same sentence?

That is, in the second usage of it, it clearly means just the runoff between the two sides.

Mr. Riordan: But the... the term majority is not used to refer to the runoff election, and... and I... as I say, this question is not before the Court.

There is nothing in the statute that suggests that different rules apply to this runoff than traditionally apply to runoffs.

In runoffs, only two candidates count.

Write-ins don't count in a... in a runoff.

You can write-in as many people as you want.

A write-in candidate could have a majority.

He would not win the runoff because a runoff is limited to... to a race between two candidates and the person who gets the highest vote wins.

It's a special election, and the majority requirement just simply wouldn't apply.

So, there wouldn't be an infinite number.

A runoff always produces a winner except, as... as the Chief... Mr. Chief Justice pointed out, you could have a tie, but... but that is... that is a problem that is not dealt with or resolved by any resolution of this case.

Justice Stevens: May I ask you sort of a question which kind of underlies my thinking about this case?

Is there any sensible reason why Congress would want one rule for the Virgin Islands and a different rule for Guam?

Mr. Riordan: I have no reason to believe that... the language of the two statutes is... is the same.

We do, as... as Mr. Hufstedler has pointed out, have a different provision when you come to the race for delegates because they have... they... for whatever reasons, they have different ballot requirements now for one or the other.

But 1712, to bring us to the delegate statute, is critically important.

I mean, that is a statute that expressly says that you're to be elected by a majority of the votes cast for delegate.

I mean, it is language that is clear.

It is unambiguous.

It is...

Justice Ginsburg: But isn't that tied to the original separate ballot requirement, that you didn't vote for the delegate in the general election?

So, of course, it would be only an election for the delegate, and it wasn't until the change was made to allow the delegate to be placed on the ballot of a general election that... that this... that you could make this argument.

That is, the original purpose... it seems to be tied to the separate ballot.

Mr. Riordan: But I would simply submit, though, Your Honor... I... I submit 1712 only as an example of the fact that... that when dealing with a related subject, Congress clearly knows how to spell out a majority requirement that deals only with a particular office, that is, or votes cast for a particular office.

Justice Breyer: Is there... is there... suppose you came to the conclusion hypothetically that the statutory language and so forth brilliantly argued both sides.

It's hard to say, you know.

But then think well, if you interpreted the... the blue brief way, you get conformity with the delegate.

You get the same group recalling as would be electing.

It's a little bit simpler.

And the Guam Election Commission is closer to it than we are.

Now... now, I'm... see, I put four things in there, and I... I wanted to see what your response was.

Mr. Riordan: Let me deal with the last one last.

It's the easiest to remember, and then you can remind me of the others.

As the district court opinion points out, blank ballots have been included by the Guam Election Commission in two prior elections.

So, the truth of the matter is that... that what they did in this case and... and I think it's... it's very clear that this was a highly politicized battle in the Guam Election Commission.

The documents before the Court reflect that, that... that the... the exclusion of blank ballots actually was a deviation from their prior practice.

Justice Breyer: Do we... do they get a little bit or not of deference?

Mr. Riordan: Well, I... I think, given the factual finding of... of the district court, it's a little hard to see what you would defer to.

Do you defer to past practice or to the deviation from it here?

Secondly, I mean, the problem with... with... I would agree... I would agree that there is a much more appealing symmetry if the delegate statute and the Governor statute are... contain the same language and... and the same principle and the same definition of a majority.

The problem is that we have to include language in the... in the Governor statute that doesn't exist, which was very expressly put in the delegate statute.

So, it's... it's symmetrical.

It's appealing, but it would be, I... I would submit, a result of... of judges deciding that... that it's a more attractive principle, although it isn't the one that the legislature chose to embody in the statutory language.

Justice Scalia: Do you know of any other... any other State or Federal or, for that matter, foreign statute in which the chief executive must be elected by a majority of the votes cast in... in an election, including votes cast for other offices?

It's a very strange provision if that's what it means.

Mr. Riordan: I'm tempted to refer to Thailand on the... on the grounds that I'm unlikely to be contradicted...

[Laughter]

by... by opposing counsel.

I can't say that... that I do, Your Honor.

I want to... I did want to make a point about... about the prior law, the law that existed at the time that the statute was passed because that's obviously one of the considerations.

Congress is... is assumed to... to know it.

Let's make a concession.

We both say that the law favors us, that there are more cases which say that... that you... you require a majority of all those who attend the general election.

The petitioners have a different view.

At a minimum, Congress, if we assume they knew that law, knew that this was a hot issue.

It... it knew that there had been a century of litigation about what a majority means.

And given that there's been a century of litigation about what a majority means, petitioners are saying if you just insert some language in there that Congress must have inadvertently omitted, although it's in other statutes... it's in 1422, it's in 1712... if you just stick it in there, it's clear and... and it's appealing.

But given that Congress knew that this was a delicate issue, we can't assume that it was omitted in any way...

Justice Scalia: How do we know that Congress knew it was a delicate issue?

In my experience Congress doesn't have a very detailed knowledge of what's going in the courts, and probably a good thing too.

[Laughter]

Mr. Riordan: Your Honor, there are those who say that this entire area of... of rules of statutory construction that we employ is... is an engagement in a fiction, and there are those who say, but it's a more appealing fiction than attempting to divine statutory history and legislative history.

[Laughter]

So, I... I will...

Justice Scalia: I can agree with that.

[Laughter]

Mr. Riordan: Perhaps the... the final point that I'll make is just one that... that it is puzzling.

I... I will admit that the toughest question that can be asked to me is Congress did not write in the language that makes it clear that petitioners should prevail.

I think that's clear.

They could have.

They used it in other statutes.

I would have to concede that they did not spell out the statute in a way that makes it crystal clear that a majority means a majority of all those who... who attended and participated in the general election.

I just think that we're closer to it.

I think that the first sentence, which says a majority of votes cast by qualified citizens, standing alone comes closer to our position than it does to petitioners'.

I think that the statement, in any election, comes closer to our petition... position because it doesn't say in any gubernatorial election.

Justice Ginsburg: But if they're both plausible readings, why shouldn't we pick the one that makes the most sense?

Mr. Riordan: Well, they... they... I... I... because one of them... because the statutory language, I submit, Justice Ginsburg, approaches and is much closer to our definition than it is theirs.

It does not require the insertion of language that it isn't... isn't there.

It does require in the context of the statute defining votes and ballots interchangeably, but that is something that perhaps, if they're not interchangeable in every context, they are very, very frequently interchangeable, as... as resort to the... the dictionary definition shows.

And we finally submit that if you are going to say that the most popular baseball player in Chicago should be elected by a vote of all of those who attend major league baseball games, you would not use that language if you intended the vote to be limited to those who are fans of the Cubs.

Rebuttal of Seth M. Hufstedler

Chief Justice Rehnquist: Thank you, Mr. Riordan.

Mr. Hufstedler, you have 7 minutes remaining.

Mr. Hufstedler: Thank you, Mr. Chief Justice.

I would like to reply, as long as my time holds out, to four or five specific points that were made.

First of all, in the discussion about the eligible voters, I think the colloquy and Justice Scalia's comments cleared that up.

But it does seem to me it's important to go back and... and deal with really the... the grandfather case that deals with this basic problem, and that's County of Cass against Johnston.

This Court which laid down a rule which has been uniformly followed and that is for qualified voters who absent themselves from an election duly called, they are presumed to have gone along with the majority who did, in fact, vote.

Chief Justice Rehnquist: Of course, that involved no Federal statute at all, did it?

I suppose the way it can become relevant is if you... if you assume... perhaps not a terribly likely assumption... that Congress was familiar with it, though, when...

Mr. Hufstedler: No.

You're correct.

They were dealing... excuse me... with Missouri law under those circumstances.

But they laid down that law and they didn't do it with the limitation.

But the second sentence I think is very important.

This is Cass.

And it not only stated that general rule, but then it stated this.

Any other rule would be productive of the greatest inconvenience and ought not to be adopted unless the legislative will to that effect is clearly expressed.

In other words, a very strong presumption that the rule contended for by the respondents should not be adopted unless it's clearly expressed.

Chief Justice Rehnquist: The case was a diversity case, was it not?

I mean, it wasn't laying down any Federal rule at all.

Mr. Hufstedler: No.

You're quite right, Your Honor, it wasn't.

But there was no limitation with respect to laying down the rule, and it has been cited many, many times in many other cases.

But nonetheless, it makes it quite clear that you won't go along with the respondents' position unless it is clearly expressed.

And I thought it was most interesting just a moment ago when counsel said that he would concede... and as I heard him say directly... that it doesn't make it... if could read my handwriting...

Justice Scalia: He said it wasn't absolutely clear, but this is by far the better reading.

Mr. Hufstedler: Doesn't make it absolutely... absolutely was the word.

Thank you.

Now, if it doesn't make it absolutely clear, it doesn't comply with Cass.

Now, you may decide not to follow...

Justice Stevens: What if his... what if the language really is by far the better reading, his... his way?

What if... you know, yours... yours is... his isn't absolutely positive, but it's... it's...

Mr. Hufstedler: Well...

Justice Stevens: certainly the language tilts in his...

Mr. Hufstedler: I could not argue, Justice Stevens, if the statute said you take all of the votes that were cast in the general election and determine the majority, of course, we're bound by that.

But that... there's nothing in the statute that even infers that.

There's nothing in the legislative history.

Using the general election... it's taken right out of the blue by the imagination of the Ninth Circuit.

There's nothing in there that says you're going to lose... use all those votes.

In any election does not say we're going to use all those votes that were cast in all of the elections at the general election on that date.

Justice Breyer: What happens in your opinion, to go back to Justice Scalia's point?

Suppose a runoff and in the runoff A has 5,001, B has 5,000, and there are 3 blank ballots.

Mr. Hufstedler: I think you don't have an answer.

And the reason is...

Justice Scalia: In any election.

Because of the sentence that says in any election.

That would presumably include the runoff election.

Mr. Hufstedler: Precisely.

Justice Breyer: No, not because... not because of that.

But... but... maybe because of that.

But even if that sentence weren't there, it just says you have to have a runoff, but it doesn't say what happens... it says nothing about what votes you count in the runoff.

Mr. Hufstedler: No, you're quite right.

It says nothing about it.

But the phrase is still there.

In any election, they must have a majority.

Now, how... how can you rule out the runoff when it says in any election you must have a majority?

And so you could go on and do this forever.

Furthermore, there's a real question as to whether or not you could even have a second runoff.

This provides that there... if there isn't a majority, there shall be an election 14 days later.

You can't have a second election 14 days later.

The code does not provide for a second runoff.

And I would recommend to the Court to take a quick look at the amicus brief which makes a primary point that if you adopt a rule such as this, you're going to have a situation where you may never have a Governor elected in an election where it's close.

And certainly the blank ballots would... would rule that out.

In connection with the Cass doctrine, I would also mention one other matter, which is a Federal case dealing with the Railroad Labor Act, the Virginia railroad case which is cited in the briefs.

And there the act provides that you have to have a majority of the people in a particular trade in order to form a union.

And the Court there says specifically it means, just as Cass did, only those voting and you've got to presume those who didn't vote go along with it.

But it explains the reason, and it explains the reason much as Cass did.

And the reason is that a few disaffected people, a small minority, by not voting or voting some other peculiar way, could prevent the adoption of a very important principle one way or another...

Justice Breyer: What about his countervailing policy argument, which is where it's that close, think about it twice?

Mr. Hufstedler: Well, that's right.

I don't know of anybody who says that, that you've got to... once you get a close election, you've got to have another election.

Because we have a lot of elections, some even in small jurisdictions, where they're won by one vote, and they're won when they're won by one vote after about three recounts, or however it comes out.

With regard to the delegate statute having different language, we've talked about that at some length, and as I say, I think we get some help out of it.

They think it's good for them.

But the important point that hasn't been developed that's in the briefs is that the delegate statute is different from the organic act, but it was passed 4 years subsequently.

Now, this argument seems to be that you adopt an organic act at one time and you don't say we're going to specifically count the majority in the gubernatorial election, although we now concede it says that twice.

That's the problem.

Then we come back to 4 years later Congress adopts the act with respect to the delegate statute and says it has to be with regard to the... the votes for the delegate's office.

Now, can you say when a Congress does something in different language 4 years later, it has done something to the original act?

The one answer might be that the Congress 4 years later had a better English teacher than the ones 4 years before.

But however that comes about, you can't modify the statute 4 years before just because somebody used different language in a statute 4 years later.

With regard to the argument that in a runoff election the one who has simply the... got the most votes is going to win is not established at all.

If you look at page 26 of the respondents' brief, they cite two cases.

They're of no help whatsoever.

One of them is a Texas case, one is a Georgia case.

But in one of those cases...

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Hufstedler.

Mr. Hufstedler: Certainly, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Foster v. Love - Oral Argument

Fri, 09 Jan 2009 14:50:02 +0000

Case:

Foster v. Love

Media File:

96-670_19971006-argument.mp3

Related Transcript:

1997_96_670_argument.xml

Transcript:

Argument of Richard I. Ieyoub

Chief Justice Rehnquist: We'll hear argument now in Number 96-670, Murphy Foster v. Scott Love.

Spectators are admonished not to talk until you get out of the courtroom.

The Court remains in session.

General Ieyoub.

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

This is the Federal Election Day case up from Louisiana.

As Your Honors know, the 42nd Reconstruction Congress put the Federal Election Day statute on the books in 1872.

The question presented is whether the Federal Election Day statute nullifies Louisiana's open primary system under which all registered voters, regardless of party affiliation, vote for their candidates for Senate and United States Representative.

Under Louisiana law as we know it since 1976, if a candidate receives a majority of the votes in the October primary the candidate is declared elected, and there's no contested election on Federal Election Day, shall we say saving the poor working man a trip to the polls in nonpresidential election years.

Justice O'Connor: General Ieyoub, does any other State, to your knowledge, have this system?

Mr. Ieyoub: Yes, Your Honor.

Oklahoma has a similar system, as does Hawaii, Your Honor.

Justice O'Connor: And they each provide, as Louisiana does, for an open primary and no general election if a candidate gets a majority?

Mr. Ieyoub: Yes, Your Honor.

Justice O'Connor: Now, California has a system, I believe, of allowing crossover voting in primary elections, is that right?

Mr. Ieyoub: I'm not sure, Your Honor.

I believe that's correct.

Justice O'Connor: And some States allow crossover voting.

In other words, there's a primary election to pick the party's candidate, but parties... people who belong to another political party may cross over and vote--

Mr. Ieyoub: Yes, Your Honor.

Justice O'Connor: --in the party primary.

Mr. Ieyoub: Yes, Your Honor.

Justice O'Connor: But in effect Louisiana and you say several other States don't treat the primary election as a party primary.

Mr. Ieyoub: No, Your Honor, it does not.

Everyone has a right to vote in the open primary in October, regardless of party affiliation.

Justice O'Connor: Mm-hmm.

Mr. Ieyoub: And all candidates run in the primary regardless of the party affiliation, so that if there is not a majority vote, then the two top vote-getters go into--

Justice O'Connor: And why is it that Louisiana made that change?

I guess it was not always that way.

It wasn't until the late seventies.

Mr. Ieyoub: --That's correct, Your Honor.

I do not know why they made that change, Your Honor, but the change was made in 1976, and it actually went into effect in 1978, and since 1978, Your Honor, we have proceeded under the open primary law manner of election.

Justice O'Connor: Well, you... do you concede that Congress has the power under the Constitution to enact laws affecting the timing of election of Members of the Congress?

Mr. Ieyoub: Yes, Your Honor.

Congress may at any time alter regulations as it see fits, but I would point out that in 20 years, almost 20 years of the open primary, Congress has never moved to try to alter Louisiana's manner of electing its representatives to Congress so as to force a determinative election on Federal Election Day, and Your Honors, the--

Justice O'Connor: Well, I guess the question, really, is whether the statutes that Congress did pass are contrary to Louisiana's scheme, as was held in the court below.

Mr. Ieyoub: --No, Your Honor, I would argue that it is not.

At the time the statute was passed by Congressman Butler and Senator Thurman in 1872, primaries were unknown.

They did not foresee primaries.

Primaries were a creature of the 20th Century, as fully stated in this Court's decision in United States v. Classic, but they did have the foresight to make exceptions for death or failure to elect, in which case they allowed elections other than on Federal Election Day.

Justice O'Connor: Well, do you say that Louisiana's system creates a vacancy, so the vacancy statute applies?

Mr. Ieyoub: Louisiana's system certainly allows for the election of a candidate in October, as opposed to actually electing on Federal Election Day.

Justice O'Connor: Well, except the Federal statute fixes the Tuesday next after the first Monday in November as the day for election for the Members of Congress.

Mr. Ieyoub: That's correct, Your Honor, and Louisiana's statutory scheme does, in fact, set a date on the first Tuesday after the first Monday.

It does do that.

We simply--

Justice O'Connor: But the election, if there's a majority vote in the primary, does not occur on that date.

Mr. Ieyoub: --Well, that's correct, Your Honor, and I submit that what we have here is an old statute and new circumstances, in which case I think that we have to look to the legislative purpose and the legislative history, as Chief Justice Taney said, looking, if necessary, to the public history of the times in which the statute was passed, and Justice Holmes saying you can look to the respective minds of Congress.

Justice Kennedy: So you accept the proposition that Louisiana law de jure authorizes elections before the Federal election date?

Mr. Ieyoub: That is correct, Your Honor, a person can be elected de jure under Louisiana's scheme, but what we're saying here is that Thurman and Butler wanted to protect the right to choose, and that is protected by Louisiana's statutory scheme.

What was important, what is important is, as Hamilton said, the right of the people to choose those whom they... who will govern them, and we allow that.

Louisiana's statutory scheme allows that.

That was what was--

Justice Ginsburg: But the question is when it's allowed, and I know that it's called an open primary, but would you explain to me why that isn't a misnomer?

As you've said, everyone can vote.

That's the time everyone votes.

It's not like a party primary, and in order to be in the running you must participate.

Now, why aren't those two features, when they're combined... everyone votes.

Everyone who wants to run must be in on this inning.

Why doesn't that add up to an election?

Mr. Ieyoub: --Well, Your Honor, there is an election on October... in October.

Justice Ginsburg: So then that is the Election Day.

Mr. Ieyoub: That is the election primary date, Your Honor, and if a person receives a majority of the vote, and only in that instance, they are declared elected, and there would be no determinative election on Federal Election Day.

Justice Ginsburg: Yes, but my question to you is, why don't we just call it what it is, that is, an election, since everybody votes, and everybody who wants to be in the running is there?

Why isn't... why is it labeled primary?

It is an election, and it seems to me, being an election it conflicts with the Federal single Election Day.

Mr. Ieyoub: Well, Your Honor, it is an election.

It is also a system of voting that winnows down the candidates in many cases, where you have two individuals with the highest vote totals going into a general election on Federal Election Day, but--

Justice Ginsburg: But you could do that consistent with the Federal day by having, if there are two people, then you have a run-off, as can happen in some States.

Mr. Ieyoub: --That's correct, Your Honor.

Justice Ginsburg: Later on, before January.

Mr. Ieyoub: That's correct, and that is possible, but the State legislature of Louisiana, which we contend has the primary authority to set the manner of elections, has acted in such a way as to hold this scheme, the open primary scheme, as the law of our State.

If we look at the hist--

Justice Ginsburg: But what interest of Louisiana would be affected if Louisiana said, we're going to do our same thing, except we're going to do it on Federal Election Day and, if need be, in the 20 percent of the cases, we'll have a run-off.

Then you would be acting consistently with all of the State goals, and with the Federal law.

Mr. Ieyoub: --Louisiana could do that, Your Honor, but what we're saying here is that Louisiana's open primary scheme in no way really clashes or conflicts with the Federal Election Day statute.

Justice Souter: Well, it does conflict, because it has an election on a day other than the day specified by the Federal statute.

That's why we're here.

Isn't that a clear conflict?

Mr. Ieyoub: No, Your Honor, because I believe that you can't necessarily give a literal interpretation in this particular--

Justice Souter: Why not?

Mr. Ieyoub: --Well--

Justice Souter: The statute's clear.

Mr. Ieyoub: --simply because I think that it might... it would lead to unreasonable--

Justice Souter: What's unreasonable about it?

Congress has decided that it wants the election to occur uniformly on a given day in November throughout the United States.

What's unreasonable about--

Mr. Ieyoub: --We have that, Your Honor.

We have that--

Justice Souter: --No, you don't have that.

Your election, if there is a majority, occurs in October, not in November.

Mr. Ieyoub: --Well, Your Honor, we submit that under the sovereignty of the State we have a right at least to set the manner in which our representatives to Congress will be elected, and it does not conflict in the sense that it's closely--

Justice Souter: There is no constitutional authority on the part of Congress to determine the time, uniformly throughout the country?

Mr. Ieyoub: --There is, Your Honor, but as was pointed out by Mr. Madison in his answer to Mr. Monroe's question about the Times, Places, and Manner Clause, the States should have the primary responsibility.

The reason why the Federal Government might have some control is that they were afraid that if the Federal... I mean, if the State legislatures did not act appropriately, it could bring about the dissolution of the Union, and that's what--

Justice Souter: Is it us... is it up to this Court to decide whether Louisiana has acted appropriately in determining whether a pretty clear Federal statute is going to be applied or not?

Is that what you're asking us to do?

Mr. Ieyoub: --No, Your Honor.

I am... I think that Congress has a right to decide whether or not there is a determinative election on Federal Election Day.

Under Article I, section 5, also--

Justice Souter: Do you think that this is a justiciable controversy?

Mr. Ieyoub: --No, Your Honor, I do not think it's a justiciable controversy, because I fail to see the injury that the respondents have really suffered.

They had a right to vote.

They had the right to vote in October.

Now--

Justice Souter: So that--

--But I want to make sure I understand your position.

Your position, then, is not really an argument about whether the statute applies, and if so, how, and whether there is an inconsistency between it and the Louisiana statute.

Your position is that this issue really does not belong in the court.

Mr. Ieyoub: --Yes, Your Honor, that is my position.

It does not belong in the court.

The right of an individual to vote in any manner is not absolute, and this Court so stated in Burdick v. DeCoushy, that the manner of voting is not necessarily an absolute right.

Now, if Your Honors would look at the appendix, joint appendix on page 43, one of the respondents says, I did not vote in the October open primary in which Billy Tauzin received a majority of the vote and was thereby elected outright under Louisiana law.

I was, therefore, prevented by the Louisiana law from exercising my right under the Constitution and Federal law to vote in an election.

She did not vote in the primary, and now she's saying that since I did not vote in the manner in which Louisiana prescribed, I have been deprived, and I have been injured, and Your Honor, we say that will not do.

That is just not correct, and the matter should not be in this Court.

Justice Ginsburg: Then your view is that no voter, as long as they could vote in something they called a primary, would have standing to object to Louisiana's deviating from most of the country in having what is the election a month before everyone else does.

Mr. Ieyoub: Well, Your Honor, I would say that certainly there would... in our situation, where there is an open primary and an October election, when one fails to vote they have not really suffered an injury to the extent that this Court, or to the extent it would create a justiciable controversy in which this Court--

Chief Justice Rehnquist: If you... General Ieyoub, that's how you... if you fail to vote you have no standing, and if you vote you haven't been injured, I suppose, so the result would be that no individual voter could ever challenge the violation, or claim violation of the congressional statute.

Mr. Ieyoub: --Your Honor, when it comes to the manner of voting, I think that's correct, when it comes to a State being able to set forth the manner of voting, as Louisiana has done in the open primary.

Justice Stevens: Yes, but of course, you can have someone who became 21, or whatever your voting age is, on November 1, couldn't have voted in October, but had the Federal statutory right to vote in November but you say, well, that's tough luck.

Mr. Ieyoub: Your Honor, they do have a statutory right to vote in November.

Justice Stevens: But there's no election in November under your system.

Mr. Ieyoub: At times there are, Your Honor.

At times there are... there is the opportunity to vote in November.

Justice O'Connor: Indeed, most of the time it's resolved in the primary, as I understand it.

Mr. Ieyoub: The history has been, Your Honor, that in the past most of the time they have been elected during the primary, and I will point out that under Article I, section 5, the Congress has the authority to challenge the seating of any individual elected to Congress and after 20 years Congress has never moved to remove the credentials of any Louisiana Senator or Congressman because they were elected in October as opposed to November.

I think the results would be unreasonable and impractical to say that if a Congressman got over 50 percent of the vote in a primary, they're not qualified to serve in Congress.

The fact that they would get 50 percent of the vote is an indication of the favor that the people hold him in, and to say that just because it was in October as opposed to an election day in November, that they do not have a right to serve after the people have chosen, I think would lead to unreasonable--

Justice Stevens: Under that argument you could maybe have your primary in September and then if you need a run-off have that in October.

It would still be all right under your analysis.

Mr. Ieyoub: --That's correct, Your Honor.

Justice Stevens: You don't... they could... you could just ignore the November date.

Mr. Ieyoub: Well, we could, but we did not, Your Honor.

Justice Stevens: You didn't.

I understand that.

Mr. Ieyoub: We did not, and in fact--

Justice Stevens: But as a matter of law, if we're trying to figure out what the law requires, you could.

The law really is a nullity as far as it requiring any particular date for the congressional election in Louisiana.

Mr. Ieyoub: --Well, Your Honor, I submit that the--

Justice Stevens: Maybe it isn't necessary, and maybe it doesn't make any sense, but under your view it seems to me it really just isn't even on the statute books.

Mr. Ieyoub: --Well, I think that Louisiana's scheme really does not in any way offer an abuse to its constitutional authority to set the manner, the primary authority to set the manner of elections.

We have a primary, or an election, in October closely tethered or closely associated with the Federal Election Day in November.

Justice Stevens: Yes, but you don't have to, if the statute means what you says it does.

Maybe you do out of your... you know, the goodness of your heart to try and cooperate with what Congress would like you to do, but you don't have to under your reading of the statute.

Mr. Ieyoub: Under our reading of the statute, Your Honor, you're correct.

If we have a majority vote-getter in October, then we feel that it's a useless exercise and a useless expense of money and time to have another election and, by the way, that was one of the objectives of passing the Federal Election Day.

Butler and Thurman didn't want multiple Federal elections so that the poor working man would have to take multiple trips to the polls, and that's--

Justice O'Connor: General Ieyoub, you are making an argument here today, at least in part, that the voters don't have standing and this is not a justiciable controversy.

That was not included in the question, was it, that you brought forward on certiorari?

Mr. Ieyoub: --Your Honor, we have in our brief--

Justice O'Connor: As I read the question presented, you said the specific question presented is whether the election system employed by the State of Louisiana to elect its Members to Congress conflicts with Federal laws governing the time for holding congressional elections.

Mr. Ieyoub: --That's right, Your Honor.

Justice O'Connor: And I thought that was the question we were going to decide.

Mr. Ieyoub: That... that--

Justice O'Connor: Although you seem to be arguing something different today.

Mr. Ieyoub: --Your Honor, we raised subject matter jurisdiction in our brief.

Justice O'Connor: Not in the question presented, however.

Mr. Ieyoub: No, Your Honor.

No, we did not.

Justice O'Connor: No.

Mr. Ieyoub: Your Honor, we have a very--

Justice Scalia: Did you raise it in your brief?

I confess not even to have seen it in... I mean, I'm perfectly willing to consider it, even if you didn't raise it.

Gee, I think... I think I ought to consider it, but I didn't even see it in your--

Mr. Ieyoub: --Your Honor, it's either in the appendix, the joint appendix, or in the brief.

I think it's... it may be in the joint appendix where we raise subject matter jurisdiction, and in any event I--

Justice Scalia: --The joint appendix?

Chief Justice Rehnquist: Why would it be in the appendix?

Mr. Ieyoub: --It's certain particular motions that we had filed.

Chief Justice Rehnquist: Not in this Court.

Mr. Ieyoub: No.

No.

Justice Scalia: This is all new stuff to me.

I mean, I... you know.

Mr. Ieyoub: But Your Honor, I would submit that this Court alone can raise the--

Chief Justice Rehnquist: Well now, just a minute.

You said you had raised it in your brief.

Where in your brief?

Mr. Ieyoub: --I apologize, Mr. Chief Justice.

We did not raise it in our brief.

I was thinking of page 24 of the joint appendix, where, in the United States District Court for the Middle District of Louisiana we raised that the court lacked subject matter jurisdiction in our answer, in that, so I apologize, Mr. Chief Justice.

Justice Scalia: It would have been nice to say something in your brief if you were going to make a big deal about it in your oral argument--

Mr. Ieyoub: Well, Your Honor, I made a big deal about it in response to a question by Justice Souter, and I think it's a big deal when you really come down to it.

I think that... in Ex parte Siebold this Court construed Article 1, section 4 not as any Federal juggernaut just totally wiping out regulation, or the manner of regulations that were passed by the State, but what they asked for, what this Court said was that we need cooperation between the Federal sovereignty and the State sovereignty, a harmonizing combination into one system of regulations made by the two sovereignties.

That's what we have here in Louisiana.

The open primary system, it doesn't really clash or conflict.

What it does is, it harmonizes two sovereignties, putting together election regulations.

Justice Ginsburg: --But you conceded that you could harmonize also if you just shifted the day that you have this election from October till November.

Then you would be totally on track with the Federal Statute.

You would serve the State purpose.

I don't understand why the harmonizing doesn't work against you, because it seems so easy for Louisiana to comply.

Mr. Ieyoub: Your Honor, that is within the purview of the State legislature to do exactly what you say.

They chose not to do it in the last legislative session, although they were faced with that issue.

We argue, however, that the history of the adoption of Article I, section 4, title 2, section 7 and its adoption, indicates that at the time it was passed, at the time the... first of all, it indicates that the State has the primary authority to regulate the manner of elections.

Second, it indicates that they didn't foresee primaries, and that primaries have been seen by this Court as an integral part of the electoral process, and that what the statute fathers of... in 1872 were trying to do was to ensure the right to choose, and the people of Louisiana have a right to choose their representatives that go to Congress.

Justice Stevens: Is it not a fact that at least in presidential election years the percentage of voter turnout at the primary is only around 30 percent or so, whereas the percentage of turnout at the November election is in the fifties and sixties percent?

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

Justice Stevens: So it does make a... perhaps make a difference to the outcome of the election if you have a very low turnout in one time and a very high turnout in the other.

Mr. Ieyoub: Well, that's correct, Your Honor, but I submit that Louisiana has had very high voter turnout in the October primary and--

Justice Stevens: Well, in 1980 it was 28 percent, I think, in 1984, 31 percent, and at the General Election was over 50 percent.

Mr. Ieyoub: --Well, that's correct, Your Honor, but we still say that we have a very close relationship with the Federal Election Day, not such that it's an abuse of our constitutional authority simply to have a system whereby the person that gets the majority of the vote is elected, and there's no need for another useless election on October, on November 2, or whenever.

Chief Justice Rehnquist: General Ieyoub--

Mr. Ieyoub: Yes, Your Honor.

Chief Justice Rehnquist: --what is the State's position, if it has one, on the suggestion of Justice Dennis, or Judge Dennis, who I believe dissented in the court below, that if this is such a problem the Federal court could simply enjoin a declaration that the candidate was elected?

You can't do that any more, but you could still conduct a primary.

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

The State's--

Chief Justice Rehnquist: That's correct, I know, what Judge Dennis said.

What's the State's reaction to it?

Mr. Ieyoub: --The State's reaction is that that can be done, and the State's reaction would be that that... we could absolutely do that.

We could have the October primary and just simply not say, well, they're not declared elected, but that they would be declared elected as of the Federal Election Day.

The State would do that, Your Honor.

Justice Stevens: But would they do that with or without putting their names on the ballot in the November election?

Mr. Ieyoub: They--

Justice Stevens: It doesn't seem to me it's much of a change if you simply make your declaration later but don't let anybody vote after the October date.

Mr. Ieyoub: --We could certainly put the names of the candidates on the ballot, though.

Justice Stevens: And give them--

Justice Breyer: --And what happens if the other one wins?

Mr. Ieyoub: I'm sorry, Your Honor.

Justice Breyer: Suppose A gets a majority of the votes in the primary, and then we put their names on the ballot again in November, but more people turn out, and this time B wins.

Who's elected?

Justice Scalia: Or there's a big scandal in between, and who came in second now comes in first.

Justice Breyer: Right.

Mr. Ieyoub: Well, Your Honor I--

Justice Scalia: You've got... you're--

--You'd only put one name on the November ballot.

Mr. Ieyoub: --That's exactly--

Justice Scalia: Isn't that the answer?

You'd only put one name on.

Mr. Ieyoub: --That's exactly right, Your Honor.

Justice Scalia: So it would be an election with--

Mr. Ieyoub: That's right, and that's basically what happened in--

Justice Scalia: --Yes or no, I guess.

Mr. Ieyoub: --That's exactly right, Your Honor.

We would put one name on the--

Justice Kennedy: Is there a write-in procedure in your State?

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

There's not a write-in procedure.

But my time is--

Justice Ginsburg: Well, what about conforming by putting the two top names, so you have your open primary, as you call it, in October, and then in November, number 1 and number 2 get on the ballot.

You could do that, too.

You just--

Mr. Ieyoub: --That--

Justice Ginsburg: --You put the second... the one who took second place on even--

Mr. Ieyoub: --Even if they don't--

Justice Ginsburg: --Right.

Mr. Ieyoub: --Even if there's a majority?

Justice Ginsburg: Right.

That would be compliance, too, I guess.

Mr. Ieyoub: Yes, Your Honor, that would be compliance.

Justice Scalia: Do you want a Federal court to pick which one of these things will be compliance and enjoin--

Mr. Ieyoub: No.

No, Your Honor.

Justice Scalia: --Well then, you don't agree with the dissenting judge below.

Why should we figure out how you should come into compliance?

Mr. Ieyoub: Well, Your Honor, I'd--

Justice Scalia: You know, what your State legislature considers severable from the rest of the scheme.

Mr. Ieyoub: --I suggest that you shouldn't, that it's really Congress.

If Congress wishes to do that, it may do that at any time.

Chief Justice Rehnquist: I don't think Judge Dennis' position was that he would leave it to the State to decide.

He... I understood him to say that you could accept all of your opponent's arguments and still solve the constitutional problem by simply declaring unconstitutional that part of the Louisiana statute which declared the person at the October primary who won to be elected, and just say that wasn't so, that there would be only one name on the ballot in November, but the person wouldn't be actually elected until then because you would strike out the declaration.

Mr. Ieyoub: Mr. Chief Justice, that's exactly right.

That's what Justice Dennis said, but prior to the time he said that, he disagreed with the holding of the other two judges that it was in any way a conflict, or that our system was in any way in conflict with the Federal Election Day statute, and we certainly hold to that particular position, that the State has the primary authority from the Court's earliest reading of Article I, section 4, that the State has the primary authority to set the manner of elections.

Justice Stevens: May I ask if it also means you would take the position that they could say whoever has the most votes in the primary shall be the only candidate whose name appears on the November ballot?

Could you do that?

Mr. Ieyoub: Under our present--

Justice Stevens: No, it's not under... but as a matter of... consistent with your legal position as a matter of constitutional Federal law and all the rest of it.

Could Louisiana enact a statute that said the person who has the highest votes in the primary is the only person whose name may appear on the November ballot.

Mr. Ieyoub: --I think that it could do that, Your Honor.

And now my time is short, so I'll try to conclude.

We say that the unfounded fears of the Fifth Circuit majority are contrary to this Court's earliest reading of Article I, section 4, and to this Court's harmonizing manner of interpreting Federal statutes and companion State election regulations.

I mean, of course, as in Ex parte Siebold.

Of course regulations made by Congress are paramount and supersede those of the State, but only... and here I quote one of this Court's great judges, Justice Bradley... but only insofar as the two are inconsistent and no farther.

We say there is no conflict, no clash between the Federal Election Day and Louisiana's primary law.

As Justice Bradley said so well in Siebold, let a spirit of national as well as local patriotism prevail.

Let unfounded jealousies cease, and we shall hear no more of the impossibility of harmonious action between the national and State governments on a matter on which they have a mutual and vital interest.

If the Court please Your Honors, the judgment below must be reversed.

Argument of M. Miller Baker

Chief Justice Rehnquist: Thank you, General Ieyoub.

Mr. Baker, we'll hear from you.

Mr. Baker: Mr. Chief Justice Rehnquist, and may it please the Court:

The key issue in this case, Your Honors, is that this is not an attack on Louisiana's prerogative to maintain this type of election system.

Justice Ginsburg got it exactly right.

Louisiana can maintain what it has, but it has to conform it to the requirements of Federal law, and that would mean this primary, which is really an election, on Federal Election Day, with a run-off thereafter as required by section 8.

Justice Kennedy: There's about 20 percent of the cases where a runoff is held now.

Mr. Baker: That's correct, Justice Kennedy.

Justice Kennedy: So under your proposal on... and I take it those are the closest elections, so under your proposal the closest elections are the one where there's the lowest turnout.

Mr. Baker: I'm not sure I understand the question, Justice Kennedy.

Unknown Speaker: Well, if the close elections are this, this 20-percent category, under the corrective remedy that you've just proposed the closest elections are going to be decided by the ones with the lowest turnout.

Mr. Baker: That's correct.

Justice Kennedy: Is that the only corrective, or could... would it suffice in your view if Louisiana simply certified the successful candidate on the Federal Election date?

He had to be alive, and then he's to get certified?

Mr. Baker: Well, it... Justice Kennedy, with respect to the former, the hypothetical you gave me, the Federal statute requires that any runoff election be held at some point after the--

Justice Kennedy: I understand that.

Mr. Baker: --And the fact that turnout may be lower is inconsequential to the Federal statutory scheme.

That's just a fact of life, and that... we saw that in Georgia in 1992, where Georgia had an election for the United States Senate in which no candidate obtained a majority of the vote in November and there was a run-off thereafter, at which point the turnout was actually lower.

Justice Kennedy: Mr. Baker--

--What about the next point?

Can... would it be satisfactory if this election scheme basically stayed in place but the winner was just certified as of the General Election date?

He had to be alive, his name on the ballot?

Mr. Baker: Not at all, Justice Kennedy, and... not at all, because the real election, the de jure election, is in fact still on--

Justice Kennedy: Well, suppose it's not de jure any more.

He's certified under... Louisiana changes the law simply to certify the winner on the Federal Election Date.

Mr. Baker: --If there's no opportunity to cast... if there's no possibility for a choice on Federal Election Day, Louisiana has foreclosed an election on Federal Election Day, and it's legally impossible--

Justice Kennedy: Is that with every single election?

Mr. Baker: --Well, if--

Justice Kennedy: With every single candidate?

In every one of the States there has to be an opponent on the final election date, on the Federal election date?

Mr. Baker: --State law has to provide for the possibility of an election.

That is, there has to be the possibility of an election on Federal Election Day.

Justice Scalia: Well, there is on Louisiana.

If the... if one person doesn't get a majority, there will an election on Election Day.

Mr. Baker: That's--

Justice Kennedy: 20 percent of the time.

Mr. Baker: --That's correct.

Justice Scalia: So you have no problem.

Mr. Baker: I have... well--

Justice Scalia: You can go home.

[Laughter]

Mr. Baker: --Your Honor, the statute doesn't say you can have an election for Federal office only 20 percent of the time.

It says in every Federal election the election must occur on--

Justice Scalia: So you demand more than a possibility of an election on Election Day.

What do you demand?

Mr. Baker: --An election, Justice--

Justice Scalia: An election on Election Day.

Then what do you do about the States that have a filing requirement and only one person files?

Mr. Baker: --The State has provided for the possibility--

Justice Scalia: Ah, you're back to possibility, now.

Which is it?

Is a possibility enough, or does it have to be a certainty?

Mr. Baker: --A possibility is sufficient as long as State law hasn't foreclosed--

Justice Scalia: Do you have a possibility here?

How do you distinguish the... I mean, I wonder, you know, where this case leads us to.

What do you do with those... what do you do with the State where only one... both parties nominate the same person?

Mr. Baker: --Where both parties have nominated the same--

Justice Scalia: You have party primaries, closed party primaries--

Mr. Baker: --Yes, sir.

Justice Scalia: --And both of them nominate the same person, Dwight David Eisenhower, or whoever, you know, some great American--

Chief Justice Rehnquist: --Or Earl Warren in California.

Justice Scalia: Or Earl Warren in California, and comes Election Day there's no election on Election Day.

Mr. Baker: If... well, there's an election to the extent that State law provided for the possibility of more than one person being on the ballot.

An election was provided for.

Through the State's ballot access rules, only one person appeared to qualify for--

Justice Scalia: Through Louisiana's primary rules only one person qualified.

I mean, it's the same thing.

Mr. Baker: --That's not correct, Justice Scalia.

Through Louisiana's... Louisiana's primary is not a qualifying primary.

It elects Members of Congress in October.

Only to the extent that there is a failure to elect in the Louisiana primary is, in fact, there an election in October.

Justice Kennedy: So you--

--But in answer to my question you said that if the certification laws were changed, and you just... and Louisiana just delayed certification until the General Election, that would not be sufficient.

Mr. Baker: That's... it's not a question of timing or certification, Justice Kennedy.

It's a question of the timing of the election that selects the Member for office.

Justice Kennedy: It's a question of what is a de jure election, I suppose, and--

Mr. Baker: On--

Justice Kennedy: --it's very clear that there is a possibility that the de jure election will be in... on the Federal election date, and you've indicated that's all that's necessary, and that's what Louisiana has.

Mr. Baker: --No, Justice Kennedy.

Justice Kennedy, Louisiana has a conclusive election in its October primary.

The voters--

Justice O'Connor: Well, only if some candidate gets a majority.

Mr. Baker: --But--

Justice O'Connor: I mean, you're all tangled up in your possibility language.

It doesn't wash.

[Laughter]

It doesn't fly.

You're... I don't know what you're up here arguing.

Mr. Baker: --Because the--

Justice O'Connor: There are statutes, as my colleagues have indicated, where you could end up with a two-party primary, and the same candidate on the ballot in November, so that it's only one name, or you could have a situation where one party doesn't make a nomination, and again there's only one name.

Mr. Baker: --Your--

Justice O'Connor: Is that a problem?

Mr. Baker: --No, it's--

Justice O'Connor: And Louisiana presumably could go to a system whereby they still have their primary election but they provide that the... if there is a majority winner at the primary election date, that name has to go on the General Election ballot before it's official that there's an election.

Now, will that do it?

Mr. Baker: --No, Justice O'Connor.

In response to your hypotheticals, those are all situations in which the party primaries are not conclusive as a matter of law.

The party primaries have merely nominated a person who may appear on the November ballot.

The Louisiana October primary is conclusive as a matter of law.

Chief Justice Rehnquist: Well then, all then... if that's your argument, then all Louisiana would have to do to meet your contention is to say the October primary isn't conclusive.

The person still has to be alive in November and be on the ballot, and it's that time that he's officially elected.

Mr. Baker: If it's not possible, if it's not legally possible for the winner of the primary in October to lose in November, if it's not... if a State doesn't allow for some other candidate to appear on that ballot, if by winning that October primary you have won the election, that... you're selected for office, that's the violation of the Federal statute.

Chief Justice Rehnquist: Well, but then you're... then you have trouble dealing with the question whether... where both parties nominate the same candidate, and there is only one candidate on the November ballot.

Mr. Baker: But that satisfies Federal law because those primaries, Chief Justice Rehnquist, were not conclusive.

They did not select, as a matter of law, the person for Congress.

A primary, as traditionally understood, merely selects a person to appear on a ballot, either a partisan nominee, or otherwise serves the function of... it's a ballot access funnel, and it winnows down the number of candidates who will ultimately appear on a General Election ballot, but it doesn't select Members of Congress.

An election does, and that's the crucial--

Justice Scalia: Then you're back to the Chief Justice's earlier question.

All you have to change in this law is the determination that he's elected, and just say, you know, he'll... this is just a primary, and he'll be the only candidate on the ballot in November.

I don't see how you can get around that, unless you want to repudiate those State laws that allow partisan primaries, both of which can name the same candidate.

Mr. Baker: --Justice Scalia, we don't--

Justice Scalia: That candidate's the only name on the ballot, and the same would be the case in Louisiana.

Whoever gets a majority in the primary, his will be the only name on the ballot.

What's the difference?

Mr. Baker: --The difference is, Justice Scalia, is that the hypotheticals you gave me, the two... there are two partisan primaries.

The part... that each provide a place on the ballot.

Neither primary is conclusive as a matter of law.

This Louisiana October primary is conclusive, and merely delaying the--

Justice Scalia: I understand that.

But I'm asking the Chief Justice's question.

If all that you changed about Louisiana law was the statement that the primary is conclusive if someone wins a majority, if you just change that and say he's not elected then, he will be the only name on the ballot in November, would that make you happy?

Mr. Baker: --No, Justice Scalia.

Justice Scalia: Then you've got to tell me why that's any different from the two-party primary that puts one name on the ballot in November.

Mr. Baker: It's not... Justice Scalia, that's not an election, because there's not the possibility... State law has not allowed for... assuming there's no write-in possibility, what section 7 requires is an election on Federal Election Day, which--

Justice Souter: But you're saying one thing more.

You're saying there's got to be a... how shall I put it +/?

a legally unconditional opportunity for voting on the November date.

That's what you're saying, isn't it?

Not merely a possibility.

You're saying that the possibility has got to be legally unconditional.

Now, if the voters make a choice, as in the Earl Warren case, that would not be a problem under your criteria, because the law was not precluding the possibility of the voting that you're talking about.

You're saying that the law cannot preclude that opportunity, and this law does in the 80 percent of the cases.

Isn't that what you're arguing?

Mr. Baker: --Absolutely, Justice Souter.

Justice Breyer: All right, and do we have to get into this other issue?

I mean, I don't know, maybe in California my recollection is they all provided for writeins.

I don't know whether they do or don't.

Maybe all these other... I don't know what Louisiana will do.

I mean, here the statute says now a candidate who receives a majority of the vote that's cast for office in a primary election is elected.

Now, do we have to go into the question of what happens if that is illegal under the statute and they decide to fix it up by declaring him elected or not?

Is it necessary or not necessary for us to go into that?

Mr. Baker: It's not necessary, Justice Breyer.

A declaratory... affirming the court of appeals, and the declaratory judgment of the court of appeals as satisfactory, then it will be the prerogative of the--

Justice Breyer: In other words, the court of appeals just dealt with this language, so if they decide to fix it up through this... saying, okay, they changed the words, so a candidate who receives the majority of the votes cast for office in a primary election will have his name placed on the ballot in November and no one else will, and there are no write-ins.

If that's how they fix it up, then we have to deal with this question we're now discussing?

Mr. Baker: --Absolutely, Justice Breyer.

Chief Justice Rehnquist: We'll also have to deal with the writing of an opinion in this case.

Yes.

I mean, we can't simply say in one word, the judgment of the court of appeals is affirmed.

We customarily give reasons why we're affirming.

[Laughter]

Justice Scalia: Sometimes.

Mr. Baker: I wouldn't object to that, Chief Justice Rehnquist.

Chief Justice Rehnquist: Well, what reasons would you suggest we give for affirming?

[Laughter]

Mr. Baker: The reasons that I would provide is that the State statute is in hopeless conflict with Federal law.

Federal law requires a uniform national date for congressional elections, Louisiana law provides for conclusive congressional elections in October that cannot be reconciled--

Justice Breyer: Mr. Baker, did I understand you to agree with me... I think General Ieyoub did... that when you have the two things, one is everybody votes in this, call it what you will, in this thing, and to be in the running you must run in this thing, that whatever label you put on it, that is an election, unlike a primary, where only Democrats can vote in one, Republicans can vote in the... they're not specific.

This is everybody who wants to vote votes in this.

Everybody who wants to run runs in this.

What is that, and if the answer is, an election, then you have a conflict with the Federal statute.

Mr. Baker: --Absolutely, Justice Ginsburg, which leads me to respond to a point made by my colleague, the Attorney General.

The Attorney General suggested that partisan primaries were unknown in 1872, and he's absolutely right, so this is not a situation of applying old law to new facts.

We're applying old law to, in fact, an election system that Congress exactly understood at the time it enacted this statute.

Congress... in 1872 there were elections.

There were no pre-election primaries.

But Congress also anticipated that States in these elections might have majority vote requirements.

Justice Breyer: But let me just... are you--

Mr. Baker: Yes.

Justice Breyer: --If you are, let me go back to the Chief Justice's question, because I was asking seriously whether we have to reach it, and to force you to focus on it, I'll say, now we are writing the opinion in your favor, hypothetically, and we come to the section where... remember the alternative I gave you you said we didn't have to reach, they change it, all right, to say only this name appears on the ballot and no write-ins?

Mr. Baker: Correct.

Justice Breyer: All right.

It is argued that it would be fine to have a statute that says, no write-ins, and the only name on the ballot, and that this statute is the same, but that argument is unconvincing, because... and now I want you to fill in the blank.

[Laughter]

That's why I'm uncertain whether we have to reach it.

How would you fill in the blank?

Mr. Baker: The argument is unconvincing because the election that selected the Member for office was held in October, and there was no election in November, Justice Breyer.

Justice Ginsburg: Mr. Baker, maybe I misunderstood you, but I think the premise of Justice Breyer's question is that it would be okay to comply just by saying that the one who gets the most votes in October is on the ballot, and nobody else, and nobody else qualifies.

I thought your answer to that was that that would not be compliance with the Federal elections statute.

Mr. Baker: That's... maybe I misunderstood Justice Breyer's question.

Justice Ginsburg: So--

Mr. Baker: That would not comply with the Federal--

Justice Ginsburg: --But it would if you said the two top runners.

Mr. Baker: --That's... there are numerous correct, Justice Ginsburg... there are numerous possibilities for fixing this system so that it--

Justice Ginsburg: I see two.

One is, you move the... what they call the open primary to Election Day.

Another one is, you put the top two.

Justice Scalia: Or maybe the first and the last.

[Laughter]

I mean, that would give you an election on Election Day, wouldn't it?

Justice Souter: What if you had a scheme in which the Louisiana statute said, whoever gets a majority in October will be on the November ballot and will be the only name on the November ballot, and there will be no write-ins, but unless in November that person gets at least one vote, that person will not or cannot be elected, would that satisfy the Federal law?

The reason I ask the question is, I think what you're saying is, there's got to be voting on the November date which is operative to elect, and in my silly hypothetical there would in fact be voting in November that would be operative to elect, and so that's why I'm asking.

Is that sort of the nub of what you're arguing here?

Mr. Baker: --It would be... well, under your hypothetical it would be legally possible to be elected or not be elected if a candidate did receive a vote, as I understand your hypothetical.

Justice Souter: That's right.

Nobody votes for the October winner, and therefore no one is elected for that office.

Mr. Baker: Which is distinguished from most... all right, under that... if State law were as you posited it, Justice Souter, and it would only take one vote to elect this person, this person was on the ballot, there would be an election on Federal Election Day, but it would not... there would be serious, profound questions raised whether or not this election satisfied this Court's First and Fourteenth Amendment jurisprudence--

Justice Souter: What is the reason for that?

Are you saying the reason is there's got to be a choice as between at least two candidates on that date?

Mr. Baker: --An election, by definition, presupposes a choice.

That's--

Justice Souter: Or at least an opportunity so far as State law is concerned for a choice.

Mr. Baker: --Correct, Justice Souter.

Justice Scalia: Now, wait a minute, there is a choice.

You... I mean, you don't say there has to be a choice, because you say it's okay if you have two separate primaries and you have no choice on Election Day.

Mr. Baker: But what has happened... two separate primaries that have elected the same nominee--

Justice Scalia: Yes.

There's no choice.

Mr. Baker: --The State law has not prevented that choice, Justice Scalia.

It's the choice of the voters in a preceding... State law has allowed for the possibility of an election in November.

Chief Justice Rehnquist: Why should it make any difference that in one hypothesis the reason you have only one name is on the ballot is there were two separate primaries and in both of those the same person, and in the Louisiana case there were a number of people on the ballot and only one person survived.

Mr. Baker: The difference, Justice... Chief Justice Rehnquist is that the... that those primaries, neither primary elected as a matter of right the person to office.

Each primary merely selected a person who happened to be the same person to appear on that ballot.

Chief Justice Rehnquist: And why does that make a difference?

Mr. Baker: Because the State law has provided for its conclusive election in November.

Justice Stevens: May I ask a question... we're talking about a lot of hypotheticals here.

Since the decision of the court of appeals in this case, do you know whether or not the Louisiana legislature has given any attention to what remedy it might provide for this, or are they just sitting waiting for us?

Mr. Baker: Yes, Justice Stevens, they looked at this in the most recent legislative session.

There were some efforts to address the problem, and then they decided apparently to wait until this Court's disposition of this case, so the legislation went nowhere.

Justice Breyer: Do you know... have you looked up, or do you know how many States other than Louisiana do not allow write-ins on the November election?

Mr. Baker: I don't know the answer to that, Justice Breyer.

Justice Breyer: Do we know if there are any others?

Is it common?

Mr. Baker: I know that Hawaii doesn't allow--

Justice Breyer: Does not?

Mr. Baker: --Does not allow write-in--

Justice Breyer: So there are other States.

Mr. Baker: --That's--

Justice Breyer: There are other States that don't allow write-ins in the primaries?

Mr. Baker: --Correct, Justice Breyer.

Justice Breyer: Well then, we may have to reach the--

Mr. Baker: Section 8--

Justice Scalia: --Would you be happy if there were a write-in provision?

I mean, if there were just a write-in?

Mr. Baker: --Absolutely, Justice Scalia.

That would satisfy... there would be an election.

Justice Scalia: There would be a real election.

Mr. Baker: There'd be an election.

Now, whether or not that election--

Justice Scalia: So I guess you'd be satisfied if we allowed the... you know, the first and the last in the primary to be put on the ballot.

Right?

Mr. Baker: --If--

Justice Scalia: Anything.

Just pick a name.

You know--

Mr. Baker: --There... well, not anything, Justice Scalia.

There has to be the... as long as there is the possibility for a choice in November--

Justice Scalia: --Right--

Justice Breyer: --That's the problem.

I can understand why you'd want to limit it, because if you can limit it any way at all, even with one vote, or even with the first and last, you've distinguished your case.

I understand that.

Now we don't have to reach the others.

But what's worrying me now is that if we say here there is no election, it's not an election, then there may be X other States that suddenly will discover they don't have an election in November for the reason that it is more than theoretically possible that both parties have selected the same nominee, and that's what is driving this concern, and at the moment I don't know the answer to that.

It seems to me a genuine concern, and that's... I mean, everybody's asking you to focus on it.

I don't want to give up before getting the most out of your thought on this that I can.

Mr. Baker: --Well, Justice Breyer, if a State's ballot access selection device is not conclusive as a matter of law, that ballot access selection device in the form of a primary would pass muster under the Federal statutes.

Justice Breyer: In other words, you're saying that if Hawaii or other States that don't have write-ins in November do end up with the Democratic and Republican parties selecting the same candidate, that their election will be invalid.

That's your position.

Mr. Baker: That's not my position, Justice--

Justice Breyer: All right.

Well, I... then... it sounds as if it is.

Mr. Baker: --Well, Justice Breyer, that--

Justice Scalia: It ought to be, if I understand the rest of your argument, or if it isn't, then the rest of your argument has to be different.

I... You keep--

Justice Breyer: --I think if people had focused on this we'd have a few briefs here from other States that would be concerned about it, and so I'm a little uncertain what to do.

It seems to me it's coming up for the first time now.

Justice Ginsburg: Mr. Baker, I thought that you had answered my question that this is an election when everybody votes.

I thought that was your distinction between party primaries that happen to come up with the same candidate but not everybody votes together, and this, which you agreed, I thought, that it is an election because everybody votes and everybody who's running must run, that those two things in combination equal an election, and if that's so, then you would distinguish your case from the party primaries that may happen to come up with the same candidate.

Mr. Baker: --That's correct, Justice Ginsburg, and for the added reason that those party primaries don't as a matter of law select the congressional officer.

They simply have selected a nominee who will appear on a ballot, and if by happenstance the same person has been chosen by the respective Democratic and Republican primaries, the election is still held in... the conclusive election is held in November, and the primaries were not legally... were not the legal selection of the congressional officer.

Justice Ginsburg: And Louisiana has been candid in describing its system, because it says, if you have somebody who comes out of this race, whatever it is, with a majority vote, that person is elected.

Mr. Baker: Correct.

That's correct, Justice Ginsburg, and section 8, the companion statute to section 7, 2 U.S.C. section 8, is a statute that answers this... that gives us the answer in this case.

Elections in 1872 were like the elections that Louisiana has today.

Everybody appeared at the polls.

Everybody voted.

In most States, a plurality election was sufficient to elect a person to Congress, but a number of States have majority vote requirements as does Louisiana today, so therefore Congress inserted section 8 into title 2 to provide for the contingency of a failure to elect on Federal Election Day, and that's the statute that Louisiana could follow and have its post Federal Election Day run-off if it so chose to do that.

If there are no further questions, that concludes my argument.

Rebuttal of Richard I. Ieyoub

Chief Justice Rehnquist: Thank you, Mr. Baker.

General Ieyoub, you have 2 minutes remaining.

Mr. Ieyoub: Mr. Chief Justice, and may it please the Court, I have no rebuttal.

Chief Justice Rehnquist: Thank you.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Hunter v. Underwood - Oral Argument

Fri, 31 Aug 2012 18:30:25 +0000

Case:

Hunter v. Underwood

Media File:

84-76_19850226-argument

Related Transcript:

84-76_19850226-argument

Transcript:

ORAL ARGUMENT OF JAMES S. WARD, ESQ. ON BEHALF OF THE APPELLANTS

Chief Justice Warren E. Burger: We will hear arguments first this morning in Hunter against Underwood, et al.--

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

James S Ward: Mr. Chief Justice, and may it please the Court:

In May of 1978, Carmen Edward, a Black female, was told that she could not register to vote because she had been convicted of the crime of issuing a worthless check which under state law is one involved moral turpitude.

That decision to refuse her her vote was based upon the Constitution of 1901 and Section 182 which allows the disfranchisement of voters for conviction of a crime involving moral turpitude.

That specific crime is not on the list.

The statutory offense for which she was committed, issuing a worthless check, did not become a statutory crime until 1971.

So, the justification for his disfranchisement would fit under the provision of the constitutional provision of 1901 which allows disfranchisement for those who commit any crime involving moral turpitude.

A month later in June of 1978, Mrs. Edwards, along with a while male, Mr. Underwood, filed a complaint in the District Court alleging that Section 182 violated various rights guaranteed by the United States Constitution.

That complaint was later amended to include five causes of action.

Three of the causes of action were disposed of in pre-trial.

The case was tried on the cause of action that specific crimes had been added to Section 182 with the intent to disfranchise blacks and that the statute has had that effect presently.

Unidentified Justice: Mr. Ward, do you know, does any other state than Alabama disinfranchise any category of non-felons?

James S Ward: Presently?

Unidentified Justice: Yes.

James S Ward: Your Honor, I do not know.

There are non-felons disfranchised for commission of various election offenses which may or may not be a felony.

But, I am not aware of any specific state that allows blanketly at least that.

I am sure there are some states that allow disfranchisement for misdemeanors depending on how the statute is written.

If the state court would define a misdemeanor as being an infamous crime and the provision of law in that state allowed for that to happen, then I think, yes.

The District Court held that there was a failure on the part of the Appellees to show that 182 was passed with the intent to disfranchise blacks and also that even if that had been shown there was a permissible motive for Section 182 and, therefore, under Palmer and Michael M. the statute was allowed to stand.

On Appeal the court below ruled as a matter of law that intent to disfranchise blacks have been shown by the inclusion of the certain crimes, those crimes being misdemeanors and crimes involving moral turpitude and that the Appellants here have failed to prove that there was a permissible motive.

It is the Appellants' contention now before this Court that Section 182 must be viewed and analyzed as it exists now, not as it existed 84 years ago when it was passed.

Today the effect of Section 182 is as follows: The only crimes for which one can be disfranchised in our state are ones involving moral turpitude or which are a felony.

No one can be disfranchised for the conviction of a misdemeanor in and of itself.

It has to be a misdemeanor involving moral turpitude or a felony.

All crimes on the list which do not involve moral turpitude are no longer good crimes in our state.

By various court decisions or decision of this Court, they have been stricken.

So, you are dealing now with a statute which, as it presently works, includes within its proscriptions those who have been convicted of a felony or one convicted of a moral turpitude crime and makes no distinction as to whether it is a misdemeanor or not.

If the crime involves moral turpitude, that is the disfranchising fractor.

That is the occurrence that allows the state to disfranchise, not its punishment as opposed to a felony or a misdemeanor.

We feel it is--

Justice Sandra Day O'connor: Mr. Ward--

James S Ward: --Yes, Your Honor.

Justice Sandra Day O'connor: --do you concede that the statute presently has a discriminatory effect?

James S Ward: No, ma'am.

I would be very blind and naive and try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won't do that.

My point is that the effect of the statute today could be and probably is based on reasons that are legitimate reasons that the state can consider.

If the difference in treatment is the result of those committing moral turpitude crimes or others or a certain class or group committing more felonies than others, then the answer to your question, Your Honor, is the effect or the numbers would not have anything to do with race.

If crimes were selected because there was proof that more than one group committed those crimes as opposed to another group, the answer to your question may be different The point is those crimes now viable all involve moral turpitude and to us the issue is whether the state 84 years later can have in operation a provision of law that disfranchises felons and moral turpitude offenders regardless of what the punishment is.

I believe that analysis is consistent with this Court's decisions in some such cases as Doyle, Arlington, and in Davis.

The important factor there was to look at whether there could be a justification for the continued validity of a decision.

In all those cases... In each one of those cases, there is an immediate decision.

A decision was made, it was challenged, and the parties knew immediately that that decision would be allowed to continue or would have to stop.

Therefore, the factors that were considered in trying to determine whether that decision was valid or not were all there presently.

In this case, there is a difference.

We have the inexorable problem of the passage of time.

This Act was not challenged until some 77 years after it was passed and here it is 84 years later.

And, I read nothing in any of those cases, in the Doyle case, in the Arlington case, or Washington versus Davis that says this Court or any court can't consider the present-day factors or the present-day justifications for something in trying to determine whether the state would have a legitimate or valid motive for the passage of the complained of Act.

The Court allows--

Unidentified Justice: --Mr. Ward, I suppose your opposition could make this same argument.

I am asking you, I guess.

Could they make the same argument with respect to felons as to moral turpitude misdemeanors?

James S Ward: Your Honor, they do not make it.

They say that the state has a right to disfranchise those who commit crimes and are defining crime as a felony.

The way I read this Court's opinion in the Richardson case, there is... the state would have the authority to disfranchise all felons which this statute does.

The question becomes, well, does the fact that there was a racial motive involved in its passage, although it applies to all felons, would that make a difference.

The way I read Richardson it would not; that the second section of the Fourteenth Amendment allows the states to disfranchise felons... and I am going to argue in a minute, if it please the Court, that it is not limited just to felons... but in the Richardson case that the section section of the Fourteenth Amendment could not be... Excuse me.

That the first section of the Fourteenth Amendment could not limit what was affirmatively given to the states by the second.

So, the answer to your question, Your Honor, is no, I don't think they could say that.

Justice John Paul Stevens: Before you get too deeply into your argument, what is a crime of moral turpitude?

I mean, where do you look for the definition of that in--

James S Ward: In our state, Your Honor, you look at several places.

The first place you look is to the afforded court decisions.

Most crimes which involve moral turpitude in our state are the subject of a court opinion and Appellate Court opinion, either the Court of Criminal Appeals or the Supreme Court, or a subject of opinion from the State Attorney General's office.

The testimony at trial showed that the registrars, in determining whether a crime involved moral turpitude or not, would either consult the Attorney General's opinions, the case law, or if that did not help them, they would seek the advice of the local district attorney or the state's attorney.

Justice John Paul Stevens: --There is no one statutory frame of reference such as a list that is--

James S Ward: No, sir, there is not, although there are cases which put out a list, but there is no list within the statute itself.

Justice John Paul Stevens: --Nobody denies that this particular... that check offense was a moral turpitude crime?

James S Ward: No, sir, that is agreed upon by everyone.

Justice John Paul Stevens: What about drunken driving just out of curiosity?

James S Ward: No, sir.

Justice John Paul Stevens: It is not?

James S Ward: Would not nor can you lose your right to vote for drunken driving.

It is suggested then that if you look at the present state of affairs and the present justifications that Section 182 would be allowed to operate and should not be stricken down.

In saying that I would point out to the Court that it has on other occasions, and I am referring now specifically to the Doyle case, which would involve the case of challenged conduct, First Amendment conduct, asks what is the cause and if the cause is not based on the unconstitutional problem but the cause was based on something else, then the decision should be allowed to stand.

And, in Doyle this Court lists some of those things, where a confession is obtained which is invalid.

Later on it can be cured by an intervening time, so the cause of the confession therefore is not what it was when it started.

Or if an arrest is made and that arrest is bad and a confession given, things can occur in the meantime where a second confession would be valid and, therefore, the cause of the confession, therefore, would be not be the initial taint.

If it is argued or assumed that there is some taint involved in the initial enactment of Section 182, we say that that taint, if any, has been cured because of, first of all, what the statute now says, and, secondly, because of the interest in the state pursuant to various... to the Tenth Amendment and to the Fourteenth Amendment to conduct their affairs in this area.

Perhaps stated another way, if North Dakota today or Wyoming passed a law which said that we will disfranchise those that commit moral turpitude crimes, would that be lawful, would that be within the exercise of the Tenth Amendment power or would it not?

The fact that Alabama, the start of Alabama's, the root of Alabama's provision was 84 years ago should not treat that state differently today whereas other states under the same circumstances today could pass it.

Justice John Paul Stevens: Mr. Ward, doesn't that argument assume... this is sort of the same thought Justice Blackmun was asking you about... that there are other states which would pass a statute like this for a non-racial purpose and I don't know if there are any such states.

James S Ward: Your Honor, I don't either but that is assuming that the state would not have that right.

I would feel quite strong in saying that the state would have a right to pass a law, fair on its face, applied in a fair manner that made moral turpitude a difference in whether one would vote; that the Tenth Amendment would give the state that right and the Fourteenth Amendment would.

Justice John Paul Stevens: Do you think they could do it if they defined moral turpitude to include all traffic offenses?

James S Ward: No, sir.

I think--

Justice John Paul Stevens: Why not?

You just think they want to insist on obedience of the law, traffic laws are important too.

James S Ward: --Well, they are--

Justice John Paul Stevens: A lot of people are killed on the highways.

James S Ward: --Well, perhaps if that specific finding was made.

That, again, is perhaps a decision best left to the states.

The point I am making is that should this state in this case be denuded of the ability to impose restrictions on the franchise.

The way the statute operates today other states would have the right to make those kinds of decisions.

I can't predict that if North Dakota did that and if it reached this Court what this Court would do, but it may could and if it could, then I would think that this state, Alabama, would have that same right.

Assuming that, and you must that the state has a right to disfranchise those who commit moral turpitude crimes, one wonders where that authority comes from.

It comes first from the Tenth Amendment, that the state has the right and a wide discretion of the rights to set qualifications for voters and to determine who is eligible to vote.

As a matter of fact, in the Lassiter case, which was cited by this Court in the Richardson case, it states specifically that previous criminal record is a fact the state may take into account in determining whether someone is qualified to vote.

We would submit to the Court that that kind of a previous criminal record which included a conviction of a crime involving a moral turpitude type crime would be a factor that the state could take into account and should be able to take into account pursuant to those powers and duties left to it by the Constitution.

If the Court is to say that per se a state does not have the right to disfranchise those who commit moral turpitude crimes without a showing that there is some other violation of the federal Constitution, they would be destroying in my opinion what the Tenth Amendment says and if the Tenth Amendment allows the states to control these types of matters and they can do so, then the states should be allowed to.

Secondly, this Court's opinion in the Richardson case, as is well know, the second section of the Fourteenth Amendment allows the state to disfranchise for participation in rebellion or other crime.

It affirmatively sanctions that and does not put the penalty provision of the rest of the provision on the state if disfranchisement is based on participation of rebellion or other crime.

This Court in reviewing the legislative history of Section 2, I feel, was careful to point out that there was little debate on what this section meant, that the interest of everyone was on another provision and that section means what it says, other crime.

Therefore, other crime could include the conviction of crimes other than a felony.

I again turn to Lassiter because the Court in discussing the eventual holding of Richardson was cited Lassiter and specifically cited the language from Lassiter that allows the state to take into account in determining qualifications of voters previous criminal record.

The analysis then is that the Fourteenth Amendment either, one, would allow disfranchisement for other crime and escape the penalties of the first section or that because the Fourteenth Amendment, the second section of the Fourteenth Amendment talks about other crimes, there has been created to the state a special area, a unique area, if you will, in dealing with voting.

The importance of saying rebellion or other crime in an amendment that was passed to help protect that very right, that is voting, seems to me to suggest that there is a special area of protection for the states and if the Court was not to accept that other crime means all crimes of any kind, then I would suggest that it would mean that in judging a statute based on the disfranchisement of crimes other than a felony, a lesser standard, a less strict standard that is used in voting cases on a general basis be used; that a strict scrutiny test not be used, but a rational basis test be used.

Now, there are some Appellate Court decision that adopt that view.

I could not find any decision from this Court that adopted that view.

We would urge that it would be consistent if the language of Section 2 and the citation to cases which talk about the states being able to decide what the qualifications are for voters and cite a Tenth Amendment case that at least this area, this area of voting has left a little more special special impact, a little more uniqueness to the states, a little broader latitude, if you will, in dealing with these problems.

That is not to say that the first section of the Fourteenth Amendment doesn't apply at all, but it would apply on a less level than a strict scrutiny will.

Justice Thurgood Marshall: Why isn't it that you haven't mentioned the Fifteenth Amendment?

James S Ward: Why, Your Honor?

Justice Thurgood Marshall: Yes.

James S Ward: Well--

Justice Thurgood Marshall: It is alleged.

It is in the complaint.

James S Ward: --Yes, sir.

Justice Thurgood Marshall: It is in the case.

Why do you say the First and Fourteenth?

James S Ward: Well, the argument, Your Honor, would be the same if now the effect of what is happening with Section 182 is on a basis other than race, is on a basis of any other bad attention.

I do not see that as being a prohibition of that Amendment.

Justice Thurgood Marshall: The Fifteenth Amendment says no discrimination of any kind by anybody.

Isn't that what the Fifteenth says?

James S Ward: I believe it says based on race, does it not, Your Honor?

Justice Thurgood Marshall: That is what I mean.

James S Ward: Okay.

But, there could be a discrimination based on something other than race and not be any problems with that amendment.

What I am saying is that if the difference in treatment here is because of a classification involved with moral turpitude crimes as opposed to race, then the Fifteenth Amendment would not apply.

I agree with Your Honor that if it is shown that the vote is abridged because of race--

Justice Thurgood Marshall: I haven't taken any position on that.

I just want to know why you have left it out of the argument.

Do you agree that the Fifteenth Amendment applies?

James S Ward: --Do I agree that the Fifteenth Amendment--

Justice Thurgood Marshall: Yes.

James S Ward: --I didn't hear the last part of your question, sir.

Justice Thurgood Marshall: Do you agree that the Fifteenth Amendment controls this case?

James S Ward: No, sir.

Justice Thurgood Marshall: Well, why don't you argue it?

James S Ward: Well, I argued it, I thought, in that the arguments I do make... that is if there is a permissible reason for what is happening now with the section that would pass constitutional muster under the Fourteenth or the Fifteenth.

That because, if you will, of what is happening now is not race, it is something else.

It is the interest of the state in disfranchising those who are convicted of moral turpitude crime and, therefore, the Fifteenth Amendment would not be involved.

Justice John Paul Stevens: May I ask you one other question about your approach... looking at just today's... what if the evidence showed for the first 30 years or whatever period it might be that the statute or the constitutional provision did abridge the right to vote on account of race and flatly violated the Fifteenth Amendment for the first 20 or 30 years of this effect.

Would it be your view that it was invalid during that period and then by reason of passage of time it kind of blossomed into something that became valid?

Is that how it goes?

James S Ward: Your Honor, both the passage of time and changes in the Amendment itself.

Section 182 today does not read the same way as it did then.

It reads the same way, but there have been crimes taken out of its sphere.

Therefore, the crimes that have been taken out of its sphere, plus the passage of time, yes, sir, would allow it to have some effect to that.

Justice John Paul Stevens: Does your analysis in effect acknowledge that it was invalid for a short... during its original effective period or you say we just don't even have to consider that at all?

James S Ward: Well, my analysis is I cannot get up here and say race did not play a part in it.

Justice John Paul Stevens: I understand that.

But, in your brief you took a little different position.

You said that it wasn't invalid originally because it had an additional purpose, to disinfranchise poor whites as well as blacks.

I am just wondering whether you... what is your present position with respect to the validity of this constitutional provision during the first 10 or 15 years of its life?

What do you say about that?

In your brief you argue it was always constitutional.

I don't know whether you are still arguing that or not.

James S Ward: I would still have to argue that, but I would have to say that again, because of the passage of time, that argument loses some of its strength.

If I may, I would like to reserve... unless there are questions from the Court... reserve what time I have left.

Justice Sandra Day O'connor: Mr. Ward, I did have one more question.

The Court of Appeals also indicated, I think in a footnote, that the statute was under-inclusive because sometimes that apparently it would be characterized at least by the Court of Appeals as crimes of moral turpitude are not included such as mailing pornography and so forth.

Is that accurate?

James S Ward: No, ma'am, it is not accurate for two reasons, Your Honor.

First of all, that mailing by... I can't remember, whatever it is, was not even a crime then.

It became a crime in 1967.

Secondly, the argument goes we weren't trying to disfranchise all misdemeanors.

We are just trying to disfranchise felons and moral turpitude offenders, misdemeanors or not.

So, the under-inclusive argument, to me, does not apply and misunderstands what we are trying to say.

We aren't trying to say that the state can select 18 misdemeanors and not select 18 others.

And, the 18 they did not select were more serious than the ones that they did not.

What we are saying is the threshold question is conviction of a felony or a crime involving moral turpitude and then it is that, the moral part of it which is important, not if the penalty is one day or ten days.

And, I think that analysis for that reason... the felonies... if you were to say a statute that disqualifies all felonies, there are some of those which is some states are not serious at all and in some states, of course, are.

I think some states, if you pick some wool or something, you can be sent off as a felon.

So, the fact that it is all felons, that same argument could apply there, that some felons... or crimes which are felons are just so unserious as compared to others it is an under-inclusiveness type thing there.

Unidentified Justice: Could I ask you one other question.

You suggest that we should look at the law at it presently stands and that the past is largely irrelevant.

What about the finding or the statement, observation of the Court of Appeals, that this discriminatory effect persists today?

James S Ward: Well, sir, that was based on a finding which was challenged at trial.

That finding was based on statistics--

Unidentified Justice: Well, what if I accept it though?

James S Ward: --Sir?

Unidentified Justice: What if that observation of the Court of Appeals is to be accepted?

James S Ward: That--

Unidentified Justice: Yes.

That the law which was passed was a discriminatory intent, had a discriminatory effect and that it still does?

What if we accept that?

What happens to your argument?

James S Ward: --Well, if you accept that, if it still does have that effect, then I would suggest that there could be shown that there are reasons other than the selection of the crime that causes the effect.

Unidentified Justice: Well, that is a different argument.

That is a different argument.

I thought your argument had been that as of today this statute should be accepted as having a neutral non-discriminatory purpose and impact.

James S Ward: Purpose.

Chief Justice Warren E. Burger: You said if North Dakota or Wyoming or some states who were not involved in those days passed this same statute now, you think it would be sustained.

James S Ward: Yes, sir.

Unidentified Justice: Well, you think Alabama may continue it if it has a discriminatory impact today?

James S Ward: Your Honor, if it was passed again in the same manner, if this Court strikes it down and it is passed again in the same manner and it shows it still impacts against blacks, then proof would have to be adduced as to why and I think some things could be shown as to perhaps why.

But, that--

Unidentified Justice: Well, should we judge the case on the basis that this observation of the Court of Appeals is correct?

Is it supported by the record?

James S Ward: --I don't believe it is, no, sir.

Unidentified Justice: You don't believe it is, but--

James S Ward: If the state would have the right to disfranchise those who commit crimes involving moral turpitude and that is the reason why there is an impact, then, yes, you could.

--Thank you.

Chief Justice Warren E. Burger: Mr. Still?

ORAL ARGUMENT OF WILSON EDWARD STILL, JR., ESQ. ON BEHALF OF THE APPELLEES

Wilson Edward Still Jr: Mr. Chief Justice, and may it please the Court:

When John Knox opened the 1901 Constitutional Convention, he stated its purpose very clearly.

He said, and what is it we want to do while it is within the limits imposed by the federal Constitution to establish white supremacy in this state.

He went on to say that they wanted to establish white supremacy by law rather than by force and violence.

Historians, including the two who testified in this case, one for the Plaintiffs and one for the Defendant, are unanimous that the 1901 Alabama Constitution succeeded in meeting this goal of establishing white supremacy by law.

The Appellants' brief even said that the entire Suffrage Article had the intention to disfranchise poor whites as well as blacks.

Suffrage was one of the principal issues of the 1901 Constitutional Convention.

Every time the issue came up, the debate centered on the relative effects of a particular provision on blacks and whites or among different groups of whites.

There were no delegates at that convention.

All of the delegates were white by the way.

There were delegates at that convention who stood up and suggested that blacks should be given a full, free, and equal franchise with whites.

Instead, the debate was over how far to take the disfranchisement of blacks and how far to take the disfranchisement of others.

Now--

Justice Sandra Day O'connor: Mr. Still, do you think that the state is forever bound by that original discriminatory purpose or can the passage of time and circumstances ultimately change that?

Wilson Edward Still Jr: --I believe they are bound.

In this Court's decision in City of Richmond versus the United States just two years ago the Court said an official action taken for the purposes of discriminating against Negros on account of their race has no legitimacy at all under our Constitution.

And, in the Arlington Heights case, the Court said that racial discrimination is not just another competing consideration.

When you find racial discrimination, that should be the judicial deference that goes along with state laws evaporates.

Justice Sandra Day O'connor: Well, in your view then is the felony disinfrancishement provision equally invalid?

Wilson Edward Still Jr: That whole provision, Section 182, would probably have to be rewritten, but I think we would have to--

Justice Sandra Day O'connor: Your answer is yes--

Wilson Edward Still Jr: --No.

Justice Sandra Day O'connor: --that it is also invalid?

Wilson Edward Still Jr: No, because the 1875 Constitution disfranchised the felons, so we would have to compare it against what they had before and go back to the provision that they had previously which would disfranchise felons only and not misdemeanors.

Chief Justice Warren E. Burger: Suppose, Mr. Still, that the 1901 attitudes were a continuation of the Jefferson point of view that only the property class should vote.

Is that not a matter of history?

Wilson Edward Still Jr: I believe that was Jefferson's view.

But, the 1901 Constitutional Convention had, of course, many view points in it but they were primarily interested in disfranchising blacks.

In fact, the Democratic Party had agreed to have the Constitutional Convention on a pledge that they would disfranchise blacks and not whites and they were elected to the Convention on that basis.

Chief Justice Warren E. Burger: The provision with respect to whites in the 1901 Constitution would violate... Do you think it would violate the Fourteenth Amendment even if it didn't violate the Fifteenth?

Wilson Edward Still Jr: Some of the provisions of the 1901 Constitution as applied to whites have been struck and as applied to all people.

For instance, the poll tax was struck down in Alabama in 1966 in U.S. versus Alabama.

So, there are many provisions of this Constitution that have been struck down on general equal protection, non-racial grounds over the years.

The grandfather clause, for instance, which this Court struck down in Keoun versus Oklahoma.

There was never any particular case about it in Alabama, but it is invalid under Keoun versus Oklahoma.

Justice Thurgood Marshall: Mr. Still, what worries me is suppose the legislature of Alabama tomorrow adopts this same law.

Wilson Edward Still Jr: Well, first of all, I do not believe that the legislature of Alabama would adopt this law.

As a matter of fact, they adopted a different constitutional provision.

Justice Thurgood Marshall: Would you mind assuming that hypothetical.

Wilson Edward Still Jr: All right.

If they adopted this same provision--

Justice Thurgood Marshall: That is what worries me in this case.

Wilson Edward Still Jr: --Well, the Plaintiffs would still have to show in that kind of situation that the... whether or not the provision had been adopted for a racially discriminatory purpose and then also they would still be allowed to show whether or not it had a racially discriminatory effect.

Justice Thurgood Marshall: I said enact.

Wilson Edward Still Jr: Well, my answer would be same whether they enact it for the first time or they re-enact it.

Justice Thurgood Marshall: You would say that tomorrow Alabama would do it on racial grounds?

Wilson Edward Still Jr: I am saying the Plantiffs would have to prove that.

Justice Thurgood Marshall: I am talking about tomorrow.

Wilson Edward Still Jr: I am saying the Plantiffs would have to prove that.

It would depend upon the evidence in the case.

Justice Thurgood Marshall: What evidence do you have to Alabama doing it today?

Wilson Edward Still Jr: I am not suggesting that Alabama would adopt this provision today.

As I said, two years ago they adopted a whole new Constitution or proposed one which did not include this provision.

Justice Thurgood Marshall: All I asked is if Alabama does it tomorrow it still will be unconstitutional, is that your answer?

Wilson Edward Still Jr: No, sir, no Your Honor.

My answer is if Alabama does it tomorrow the Plaintiffs will have to prove the same thing they proved in this case, but I am not predicting what the proof will be because I do not believe that Alabama will adopt this provision based on what they did two years ago.

There was a whole new Constitution proposed two years ago which did not include this particular provision and that Constitution has not yet come to a vote of the people of Alabama because of a technicality with the Alabama Supreme Court who said you can't propose a whole constitution in the way they did.

Justice Thurgood Marshall: So it would be valid?

Wilson Edward Still Jr: --No, this--

Justice Thurgood Marshall: If it was adopted tomorrow, it would be... You said they couldn't show it was invalid.

Wilson Edward Still Jr: --No, sir.

Justice Thurgood Marshall: So, wouldn't that be--

Wilson Edward Still Jr: Your Honor, I have not said that they could not show it was invalid.

I have said the Plaintiffs would have to prove that it would be invalid.

It is my contention--

Justice Thurgood Marshall: --Well, they can't prove it is invalid or can they?

Wilson Edward Still Jr: --I believe they can prove that it is invalid because of its present continuing effect.

Now whether they would be able to prove it still had that intent tomorrow I don't know.

It depends on what the evidence shows in the case.

Turning back to 1901 though we know that that had a discriminatory purpose.

The author of the provision said I have written this to have a discriminatory purpose.

Everyone at the Convention assumed that it did and all historians have agreed that no one disputed that point.

In fact, the Defendants' own expert, the Appellants' own expert testified that 90 percent of the people who were disfranchised in the first year after the passage of the Constitution for commission of a misdemeanor were black.

Justice William H. Rehnquist: Mr. Still, just how much evidence do you think a Plaintiff has to have to make the sort of showing that the Court of Appeals found you have made here?

You say that the proponent stated, this was his motive, he wanted to disinfranchise blacks.

Now, you know, I don't know how many people there were in the Constitutional Convention, but how much showing do you have to have as to the motivation, say, of at least a majority of the people who voted?

Wilson Edward Still Jr: I think in any type of test that you apply that this situation in Alabama is going to be held to be discriminatory because the racial--

Justice William H. Rehnquist: I think that is probably true but that wasn't the question I asked you.

Wilson Edward Still Jr: --Well, I do not know how much is necessary.

I am simply saying that under any test that has been proposed by any of the Justices of this Court in any of their opinions over the last ten years or so, that this meets the test because there was such a pervasive racial attitude in that Convention that everyone wanted to discriminate against blacks in terms of voting.

Justice William H. Rehnquist: But, you wouldn't offer any more general test than just whatever the test is of this passage which is certainly a permissible point of view.

Wilson Edward Still Jr: I would suggest that.

I would suggest that the tests that have been enunciated in Arlington Heights and in Rogers versus Lodge are tests that have been adopted by the majority of this Court and that this would be proven to be discriminatory under either one of those tests.

Actually what we have in this situation though is this Court has identified over the years three different kinds of discriminatory laws.

There are the ones that overtly discriminate, say race is a factor such as Brown versus Board of education.

Then there is the kind that have been described as an obvious pretext towards discrimination such Yick Wo versus Hopkins or Gomillion versus Lightfoot.

And the third type is disproportionate impact on minorities such as Washington versus Davis and Arlington Heights.

This case falls into that second category.

This is a Yick Wo type case.

Yick Wo was a pretty transparent provision passed by the San Francisco City Council.

This is a--

Justice Thurgood Marshall: Still I say that there is nothing wrong with the ordinance in Yick Wo.

Wilson Edward Still Jr: --Well--

Justice Thurgood Marshall: Yick Wo said it was enforced with a discriminatory purpose.

Wilson Edward Still Jr: --It was--

Justice Thurgood Marshall: And it didn't knock the statute out, it knocked its enforcement out.

Wilson Edward Still Jr: --That is right.

Well, perhaps I should depend upon Gomillion then which we know was in the statute itself.

Justice Thurgood Marshall: Right.

Wilson Edward Still Jr: And, Gomillion is another example of a pretty transparent law.

It eliminated practically every black person from the City of Tuskegee and left practically every white person in the City of Tuskegee.

So, this is that same type of obvious pretext for discrimination.

In that kind of case, you don't have to spend a lot of time worrying about what test you are going to apply because all you have to do is cut through the pretext and say we know what the decision is.

Justice William H. Rehnquist: I know, but can you be sure without the sort of evidence of actual discriminatory intent that you adduce on the part of the sponsor that it is necessarily a pretext?

Supposing they had a lot of people getting up on the convention floor and saying I realize the sponsor says this is to disinfranchise blacks.

I don't want to disinfranchise blacks but I will regretfully go along with this because I think it is a sound principle to disinfranchise these kinds of misdemeanors.

Wilson Edward Still Jr: If you had that kind of evidence in this case, that would be a contraindication to the evidence that we have, but as one of the expert witnesses said, while the evidence may be circumstantial it all points in the same direction and that is the kind of situation we have here.

All of the circumstantial evidence points in the same direction.

Now, the question was asked earlier, what do other states do?

Alabama is the only state that disfranchises misdemeanors on the basis of committing a crime of moral turpitude.

There are seven states that disfranchise everybody convicted of any crime while they are serving their sentence and, of course, with a misdemeanor that is going to be less than a year.

There are five states that disfranchise people convicted of felonies and election laws.

There is one state that disfranchises people convicted of election laws only.

Now, Alabama and Mississippi are the only two states that have lists in their Constitution and the lists say here are the crimes that are to be disfranchised.

Mississippi's list does not say and crimes of moral turpitude.

Now, the question was also asked, what is a crime of moral turpitude in Alabama?

I wish I knew the answer to that.

The Supreme Court of Alabama has said it is a crime that is inherently evil and the Attorney General of the State of Alabama, in giving one of his opinions to a board of registrars, listing all the crimes that had been found to be crimes of moral turpitude, said, well, there may be some other crimes that are moral turpitude, it all depends on the moral standards of the judges who happen to be hearing particular cases.

So, moral turpitude in Alabama is a somewhat fluid concept and I suppose drunk driving offenses could become a crime of moral turpitude if the Alabama Supreme Court decides that they are crimes of moral turpitude.

Mr. Ward and the Appellants have claimed that the affirmative sanction of Section 2 of the Fourteenth Amendment allows them to disfranchise on the basis of misdemeanors of moral turpitude.

What the Fourteenth Amendment says is that the state may disfranchise on the basis of participation in rebellion or other crime.

It doesn't say you get to pick and choose among the other crimes or among the people who participate in rebellion.

Justice John Paul Stevens: May I ask one other question about the moral turpitude and the particular offense here which I guess was passing a worthless check.

What are the contours of the particular offense here?

Is it if you overdraw your bank account, is that--

Wilson Edward Still Jr: If you overdraw your bank account, if you have a non-sufficient funds check and the merchant sends you the check or sends you a certified letter that says I have got your check for $25, come in here within ten days and clear this up, and you don't respond to the letter, that is considered to be prima facie evidence that you intended to defraud the person, that you intended to give him a worthless check.

If you go and clear it up, the case is dropped.

Then, of course, you are able to rebut that presumption.

The offense that the two Plaintiffs in this case were convicted of was a first offense.

It carries a $100 fine.

Even with repeated offenses in Alabama, you can only get, I think, a $400 fine for passing a bad check.

You can't even get any jail time under the particular law that they were convicted of.

Unidentified Justice: --Is it the opinion of the Attorney General?

How do we know it is moral turpitude?

Wilson Edward Still Jr: I believe there is an opinion of the Alabama Supreme Court in this particular case.

Usually cases get... crimes get defined as being crimes of moral turpitude because it comes up in a question about whether a witness is credible or not, so it comes up that way, and it is a collateral attack in effect on the original conviction of the person.

But, most of the time, if a persons seeks to be registered to vote and the Board of Registrars has some question about it, they will hold the person's registration certificate and write to the Attorney General for an opinion.

There are some interesting anomalies in Alabama's decisions about what is a crime of moral turpitude.

For instance, selling untaxed, illegal liquor is not a crime of moral turpitude but selling narcotics is a crime of moral turpitude in Alabama.

And, as I said, driving while intoxicated may become a crime of moral turpitude in Alabama some time soon.

But, the affirmative sanction of Section 2 of the Fourteenth Amendment that the Appellants rely on, as I say, does not allow a state to pick and choose among those crimes and say, well, we are going to disfranchise some people within this category and not others.

The Fourteenth Amendment cannot provide a shield to the State of Alabama any more than the Twenty-First Amendment can provide a shield to a state that says we are going to set one drinking age for boys and another drinking age for girls.

This Court--

Unidentified Justice: I take it the import of your argument, present argument is that without any consideration of race this statute is invalid.

Wilson Edward Still Jr: --Yes.

That is another claim that we made.

Unidentified Justice: Because it picks and chooses among almost identical kind.

Wilson Edward Still Jr: That is correct and that particular argument that we made has not yet been ruled upon by the Court of Appeals.

That is one of the issues that they have not yet ruled upon.

Unidentified Justice: Are you relying upon it here?

Wilson Edward Still Jr: I rely upon it to the extent that I believe that it may assist the Court in making--

Unidentified Justice: As another ground for affirmance?

Wilson Edward Still Jr: --Yes, as another ground for affirmance.

But, I also believe that if this Court remanded to the Court of Appeals, they would then have to decide that particular issue.

Now, the Court of Appeals also analyzed the state's reasons for adopting Section 182, the reasons they proffered.

They found that those reasons were not supported in the record as being reasons that had actually been considered at the 1901 Convention and they also found them to be insufficient as a matter of law.

Now, the state said we have got a right to disfranchise people who were convicted of crimes of moral turpitude or any type of crime that we want to use and they cite the case of Washington versus State which was decided about a decade and a half before the Constitutional Convention.

They were unable to show the Court of Appeals or the District Court any citation in the records... We have a verbatim record of the Constitutional Convention... any place anybody debated the existence, even mentioned the existence of the Washington versus State case.

And then also because of this picking and choosing feature the Court held that the state was not using the best means available to meet its particular end.

For instance, in Alabama it is not a crime of moral turpitude to assault a police officer.

It is not a crime of moral turpitude to be convicted of second degree manslaughter.

Each one of those is a relatively serious offense that is going to get you a lengthy jail term but still a misdemeanor, much more than you can get for passing a bad check for which you can get no jail time at all and yet neither one of those offenses is an offense that will disfranchise one.

The Court of Appeals found that because of that that the state's argument about picking and choosing or wanting to disfranchise people who had been convicted of violating the state's laws was not legally valid.

Unidentified Justice: Was it credible?

Wilson Edward Still Jr: Pardon?

Unidentified Justice: Did they say not legally valid?

Wilson Edward Still Jr: I believe they--

Unidentified Justice: On the grounds of discrimination on the equal protection--

Wilson Edward Still Jr: --They rejected it as being an insufficient grounds because they said... You say you want to disfranchise people who have been convicted of violating your laws, but you leave out a lot of serious offenses and reach down and get people--

Unidentified Justice: --So they just said their explanation was not credible?

Wilson Edward Still Jr: --They said the explanation was not credible.

They said there also was no evidence to support that anybody had even discussed that idea.

Instead, all of this discussion, I reiterate, in the 1901 Convention about the suffrage article was about the racial effect of those provisions.

There were discussions about how many blacks and how many whites it would disfranchise.

They ended up with a package of laws which were obviously to disfranchise as many blacks as possible and to leave as many whites as possible on the voting rolls.

They put this provision, Section 182, in specifically because the list of crimes was a list of crimes that the sponsor had determined to be ones that blacks committed more often than whites.

For these reasons we believe that the Court of Appeals' judgment ought to be affirmed in this case.

I would point out that the remand of the case from the Court of Appeals has already taken place to the District Court and the District Court has already entered a final order.

And, the class of Plaintiffs in this case, many of them have already gone down and sought to be reinfranchised.

I believe that this Court should not interfere with the judgment of the Court of Appeals and should affirm it.

Unidentified Justice: What was the effect of the Court of Appeals' judgment, that this particular provision is just invalid on its face?

Wilson Edward Still Jr: They declared it to be invalid as applied to misdemeanors.

Unidentified Justice: Both blacks and whites?

Wilson Edward Still Jr: Yes, as to both blacks and whites.

Unidentified Justice: Why do the whites get the benefit of it?

Wilson Edward Still Jr: Well, because the provision is--

Unidentified Justice: You say what you are relying on is that the purpose of it was to discriminate against blacks.

Wilson Edward Still Jr: --In all other cases that I know of where a court has invalidated a law on the basis that it was infected with a racially discriminatory purpose and it also had some effect on whites as well as on blacks.

They have just struck down the law.

They have not said let's have different laws for whites and blacks.

So, I think what they did in this case was consistent with what this Court and other courts have done in the past.

The effect of the Court's decision was to remand the case to the District Court with instructions to enter a judgment and the District Court did so within a couple of months.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Ward?

You have three minutes remaining.

ORAL ARGUMENT OF JAMES S. WARD, ESQ. ON BEHALF OF THE APPELLANTS -- REBUTTAL

James S Ward: Justice Stevens, I have the citation to that case if you would like it, sir, to the state decision that defines this offense as one involving moral turpitude.

Justice John Paul Stevens: Yes.

James S Ward: If you would like it, I have it.

It is Irwin versus the State, 203 Southern Second, 283.

Justice John Paul Stevens: Thank you.

James S Ward: Yes, sir.

Unless there are any questions, I... Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen, the case is submitted.

Featured:

Rodriguez v. Popular Democratic Party - Oral Argument

Fri, 09 Jan 2009 14:47:18 +0000

Case:

Rodriguez v. Popular Democratic Party

Media File:

81-328_19820322-lq-argument.mp3

Related Transcript:

1981_81_328_argument.xml

Transcript:

ORAL ARGUMENT OF PHILIP A. LACOVARA, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments first today in 81-328, Rodriguez against Popular Democratic Party.

Mr. Lacovara.

Mr. Lacovara: Mr. Chief Justice, and may it please the Court, in a series of decisions going back at least a century, this Court has recognized the basic principles that we believe control the case here this morning.

For example, in 1875, the Court stated in Minor against Happersett,

"Necessarily, the members of the legislature are elected by the voters of the state."

In 1964, in the landmark case of Reynolds against Sims, the Court said,

"Representative government is in essence self-government through the medium of elected representatives of the people."

And then, in one of the many, many cases applying the Reynolds versus Sims principle, the Court said in 1969 in Kramer versus the Union Free School District,

"The right to vote establishes the legitimacy of representative government."

Mr. Fortas: Well, counsel, are you suggesting that those cases stand for any more than the proposition that where once a right to vote is accorded, it has to be afforded in a non-discriminatory manner?

Mr. Lacovara: I think they do stand for more than that, Justice Rehnquist, although since Puerto Rico has recognized the right to vote for its legislature, it might be necessary for the Court to go no further than to apply those principles, but we contend that the principles that this Court has already recognized demonstrate that there is an absolute obligation on the part of the states and by virtue of the compact between Puerto Rico and the United States on people of Puerto Rico to provide for an elected legislature.

Mr. Fortas: What provision of the Constitution gives rise to that duty?

Mr. Lacovara: As we have tried to explain in our brief, Justice Rehnquist, the obligation to provide for an elected state legislature appears from at least two provisions of the Constitution.

One, of course, is Article I, Section 2, which necessarily assumes that state legislatures are elected, since it provides that the electors for the United States House of Representatives must be the same as those who are the electors for the state legislature.

In explaining that clause and other similar assumptions underlying the union of states that was forged in the Constitution, James Madison and the other authors of the Federalist Papers treated it as a fundamental given that the union being established under the Constitution was a union of states with a republican form of government, and that a republican form of government included elected legislatures.

Mr. Fortas: How do you explain that in many instances when a Senator, United States Senator dies or leaves office by resignation, the governor is empowered in many instances to appoint his successor until the next election?

Now, he is not elected by the people, then, is he?

Mr. Lacovara: Well, originally, Mr. Chief Justice, the provisions of Article I, Section 3, called for the appointment of all United States Senators by the legislatures.

There was no popular election.

Mr. Fortas: That has changed.

That has changed.

Mr. Lacovara: That has changed.

And the Seventeenth Amendment provides for direct election of Senators, but recognizing the historical tradition of having appointed legislators, the Seventeenth Amendment provides that governors may make temporary appointments, but the Seventeenth Amendment, quite consistent with the tradition on which we are relying, insists that the temporary appointment by the governor may last only until the people, as the Amendment says, have the power, the opportunity to elect a successor.

Mr. Fortas: That might be as much as two years, or lacking a day or two, two years, wouldn't it?

Mr. Lacovara: There is one case in which the... a lower court found that a delay of over two years was temporary, but the court emphasized that the Amendment recognizes the right of the people to elect the Senator, and the court specifically said it would not be able to sustain a statute like the one here by which the governor was authorized to appoint a substitute Senator for the full balance of the term.

Of course, what we have here before the Court is a statute similar to the one adopted in a minority of states that permits appointment to fill the balance of a legislative term.

We think that that approach is fundamentally at odds with the right of representative government, which is recognized in Article I, is specifically enforced in Article IV, the republican form of government clause, and if further support would be needed, several other courts have suggested that the right to vote at least for state legislative office, and that is all this case involves, can also be inferred from the provisions of the First Amendment, from the due process clause of the--

Mr. Fortas: Haven't we held that Article IV is a political question?

Mr. Lacovara: --Going back 150 years, in Luther against Borden, the Court suggested that in some circumstances a guarantee clause claim might be non-justiciable, but as Justice Brennan's opinion for the Court in Baker against Carr explained in considerable detail, the fact that certain claims under the republican form of government clause might not be Justiciable does not mean that any claim under that clause is non-justiciable, particularly when the fundamental core of the republican form of government is at issue, and I submit that is what we have here, or when other provisions of the Constitution give explicit guidance to the Court on the content of the republican form of government, and here, both the text of the Constitution and the history before, during, and after the debates on the ratification of the Constitution leave, I submit, no room to doubt that the bedrock organization established by the Constitution of the United States is a union of states governed by elected legislatures.

Mr. Fortas: Must you win on this basic proposition to prevail in this case?

Mr. Lacovara: No.

As I was suggesting a moment ago to Justice Rehnquist, since Puerto Rico has in fact extended the right to vote for its legislature, we suggest that that was not a free choice, but a matter of Constitutional obligation, one that Congress, of course, specifically enforced in the compact.

One could approach this case as a simple equal protection clause case.

Mr. Fortas: Well, must you win on this narrow proposition to prevail?

Mr. Lacovara: One can go back still another step, Justice White.

The system that Puerto Rico has actually chosen for filling vacancies is one in which the political party makes the direct selection.

That system, we believe, is invalid on First Amendment freedom of association grounds.

Mr. Fortas: Well, if it were, wouldn't ordinarily we take the narrowest possible resolution, and not reach some of these broader questions you are arguing?

Mr. Lacovara: You could certainly do that in the exercise--

Mr. Fortas: Wouldn't it be more proper for us to do that?

Mr. Lacovara: --Normally you would, Justice White.

We thought it appropriate to sketch the full context of this case in order to place it in historical perspective.

The party appointment system we think is facially invalid under the First Amendment as well as the Fifth and Fourteenth Amendments, but that conclusion, I believe, becomes all the more compelling when the Court appreciates that what we are talking about here is not just a discriminatory system in handling some political venture or some governmental function.

We are talking about a discriminatory system that goes to the heart of representative government under the Constitution.

The survey that I tried to outline in our brief to explain why the Constitution requires an elected legislature I think implies that when vacancies occur in the legislatures exercising general statewide lawmaking power, the people have a continuing right to have their voice heard in selecting the legislators who will make the policies that will govern their lives.

That seems to me to be implicit in the text of the Constitution, but this is another of those examples in which a page of history may be worth more than a volume of logic.

As we have outlined in our brief, at the time the Constitution was adopted, it had been for centuries the British tradition to replace vacancies in the House of Commons through a bi-election.

It beggars the imagination, I suggest, to conclude that the colonists who fought and made a revolution were intending to establish a form of government where the people would have fever electoral rights than did their cousins in England.

At the time the Constitution was adopted, every one of the states that provided for filling vacancies in their state legislatures, even at a time when elections were held annually, provided for filling those vacancies through a bi-election.

Mr. Fortas: With respect to the United States Senate vacancies that occur during the term, what provision of the Constitution governs the method by which the successor is to be selected?

Mr. Lacovara: The Seventeenth Amendment is explicit on that, Mr. Chief Justice.

Mr. Fortas: Now, is it possible that one of the considerations also is that to hold a bi-election for a Senator on the part of the state... I am talking now about the considerations that went into that provision, that it would cost a great deal more money to hold a statewide election, bi-election, than a district election?

Is that a factor that perhaps entered into it?

Mr. Lacovara: I think it was.

The court that upheld the 29-month vacancy in the New York... the appointment of a Senator from New York noted that one of the reasons for giving the governor power to make a temporary appointment pending the holding of an election was that holding statewide elections for the United States Senate would be costly, but what I want to emphasize is that the Seventeenth Amendment is of a piece with Article I in providing that there must be a bi-election for members of the United States Senate, just as for members of the House of Representatives.

All the Seventeenth Amendment does is authorize the governor to make a temporary appointment until the machinery for setting up a bi-election can be put into place, and that same court was quite explicit in saying that the court would not sustain under the Seventeenth Amendment a statute that authorized the governor to appoint a substitute Senator for the full balance of the term.

So, the tradition that both Article I and the Seventeenth Amendment codified is the tradition, what I would consider a basic constitutional presumption of our form of government, that the people have the right to select their legislative representatives even though there might be some cost or burden involved.

Of course, as I will explain in a few moments, the cost, the burden, the inconvenience that can be talked about in this case are minuscule in comparison with the burden that the Seventeenth Amendment expressly requires the states to shoulder in electing substitute Senators.

We are talking here only about a single district vacancy, a vacancy that arises, as this record shows, quite infrequently.

The implication in the Constitution that the people have the right to select their legislators is, I think, fundamental.

That carries us through, I submit, the right of the people to select their legislators even when a vacancy occurs.

This is a continuing rights, something that is not lost simply because of the happenstance occurrence of death or resignation.

Legislators are, after all, elected by the people to be their spokesmen, their representatives in making government policy.

For these reasons, we submit that any system that at least in the absence of compelling justification authorizes the appointment of a substitute legislator fails to comply with various provisions, explicit and implicit, of the United States Constitution.

Mr. Fortas: Do you think that prior to the enactment of the Seventeenth Amendment, a state could have provided in a bicameral legislature for an upper house whose members were each appointed, say, by the supervisors of one county of the state?

Mr. Lacovara: Well, the Seventeenth Amendment would not affect the provisions of state legislatures.

Mr. Fortas: No.

Mr. Lacovara: That applies only, of course, to the federal legislature.

The powers of the state to provide for an appointed state senate today or originally, I think, are outside the contours of this case.

Mr. Fortas: Do you have any answer to the question?

Mr. Lacovara: I think historically, Justice Rehnquist, the states did provide for appointed upper houses.

They were more in the nature of executive councils, rather than popular chambers, and since in Minor against Happersett this Court said that the situation as of the time of the adoption of the Constitution gives us the best glimpse of what the Framers meant when they spoke about a republican form of government, my answer would be, apart from later Constitutional Amendments, a state at that time could have provided for an appointed upper house, but had to provide, as it still must provide, for an elected, a popularly elected lower house.

That was the common pattern of all of the states at the time the Constitution was ratified.

If you will, that was a parallel reflecting the dichotomy between the House of Lords and the House of Commons.

But what we have here today is a state lower legislative house that is made by statute and Constitutional provision a popularly elected chamber.

We believe that is a Constitutional imperative that Puerto Rico has recognized, and that vacancies in it must be filled by the same electoral process.

Justice White a few moments ago asked about alternate grounds for the relief being sought in this case.

The First Amendment is a clear one.

Puerto Rico, like a small minority of states, has adopted a theory of party ownership which was expressly upheld against federal constitutional challenge by the Supreme Court of Puerto Rico.

Under this notion, the seat in the legislature belongs not to the people indeed perhaps not even to the candidate whom the people elected, but to the party on whose ticket the candidate won.

That concept seems facially inconsistent with our notions of representative government, both as a matter of practice as well as a matter of Constitutional theory.

Legislators are elected by the people, not by parties.

They represent people, the voters of their districts, not parties.

A system of this sort is--

Mr. Fortas: Counsel, I am not sure I understood your suggestion that the seat would not even be owned by the candidate.

Mr. Lacovara: --The logic--

Mr. Fortas: While he is occupying it, he surely is the only one who has title to it, isn't he?

Mr. Lacovara: --Well, that is a difficulty that I have had with the justifications for the party ownership system, Justice Stevens.

The Supreme Court of Puerto Rico said that there are several... it termed them compelling justifications for this party ownership system.

One was that the party be able to preserve its electoral balance.

Mr. Fortas: But does the "party ownership" rationale apply to anything except filling the vacancy?

Mr. Lacovara: The rationale does.

It has not been applied in its most extreme form.

Indeed, this is one of the points that I wanted to make.

If this rationale justified the party's ownership of the seat when a vacancy arises, because it is necessary for the party to retain a particular level of balance in the legislature, or to carry out its electoral mandate, the party ownership rationale would similarly be offended if a legislator decided he wanted to break ranks with his party and vote against its platform, or decided, as one of the appendices to our brief shows, if the legislator actually decided to change parties after election, these perfectly--

Mr. Fortas: Well, it seems to me one could say in a state where a governor can fill a vacancy, one could says, well, the governor owns the seat in the same sense, but that would not mean that the legislator while he is in office is owned by the governor, would it?

Mr. Lacovara: --Well, I think I wouldn't frame the alternative to party appointment as governor ownership either.

Mr. Fortas: Well, isn't that just a question of language, whether you call it party ownership where a party has the right to fill the vacancy?

It is just... may be unfortunate language, but does it really mean anything?

Mr. Lacovara: The premises that were given, Justice Stevens, for party ownership I think suggest that the Supreme Court of Puerto Rico takes this principle seriously.

This is not just a label attached.

The reasons for giving the party rather than some elected official the power to fill the vacancy or that the party has a right to a certain quantum of political support in the legislature, regardless of whether the people or anyone else would choose someone of the same party to fill that vacancy, so there is not a necessary overlap between the label and the consequences, but the rationale that was given by the Supreme Court of Puerto Rico seems to me to carry us to that point.

Mr. Fortas: You seem to be arguing that there is something inherently un-American, undemocratic about this idea.

Is that not balanced by what the Constitutional, the Seventeenth Amendment expressly authorized with reference to United States Senators?

There is nothing un-American about that, is there?

Mr. Lacovara: Well, on the contrary, Mr. Chief Justice, I think the Seventeenth Amendment supports our position for two reasons.

One, it recognizes the basic proposition that we are arguing, that is, that there must be an election to fill a vacancy even in the Senate.

There can be a temporary appointment, but ultimately there has to be a bi-election.

The Puerto Rico statute makes no such provision.

The appointment here is for the full balance.

Mr. Fortas: Does the Seventeenth Amendment apply to any person other than a Senator or any office other than the U.S. Senate?

Mr. Lacovara: Absolutely not.

Mr. Fortas: Well, what does it have to do with this case?

You keep bringing it up.

Mr. Lacovara: Well, I am trying to respond, Justice Marshal, to some questions about the Seventeenth Amendment.

To the extent that one of the assumptions of the Seventeenth Amendment is applicable here at all is the assumption that there has to be a bi-election, but by its terms it applies only to selecting replacement members of the United States Senate.

That is not one of the principal Constitutional provisions on which we rely.

Mr. Fortas: But if your basic theory was correct, we probably didn't even need the Seventeenth Amendment.

Mr. Lacovara: No... well, the Seventeenth Amendment was necessary, Justice Stevens, because Article I.

Section 3, of the Constitution provides for... provided for direct legislative appointments of Senators.

The state legislatures appointed Senators.

There was no popular involvement at all.

Mr. Fortas: Right.

Perhaps I should say, we didn't need the... well, I understand your point.

Yes.

Well, there were direct elections of Senators long before the Seventeenth Amendment.

It was up to the states, wasn't it?

Mr. Lacovara: Some states... some states had provided that they would abide by the judgment of the electorate, but the Constitutional power to appoint, up until the Seventeenth Amendment, remained vested in the legislatures, and the official act that brought a Senator to Washington was not the choice of the people, but the action of the legislature.

Mr. Fortas: But if they had passed a statute saying that we are going to abide by the result of an election, presumably the consequences were the same as if they simply provided for an election in the first place.

Mr. Lacovara: Yes, many of them did, and the purpose of the Seventeenth Amendment was to make sure that all the states recognized the importance of popular sovereignty.

Again, that legislative history is traced briefly in our opening brief, and its relevance, Justice Marshal, is simply that it reflects the latest in what we think is correctly unbroken recognition that at the federal level as well as at the state level legislatures must be popularly elected.

That is their basic function, to serve as the representative branch of government.

Mr. Fortas: That is the way you read it.

The way I read it is that they decided that as for the Senate, this is the way it is to be done, in the Senate.

That is the way I read the Seventeenth Amendment.

Mr. Lacovara: Yes.

That's correct.

It parallels what Article I, Section 2, provides for the House of Representatives.

Mr. Fortas: It didn't say so.

Mr. Lacovara: Well, the Seventeenth Amendment has its own text, but the procedure for popular election is essentially the same as for selection of replacement members of the House of Representatives.

Article I, Section 2, provides that in the event of a vacancy in the House, the executive, the governor, must issue writs of election, regardless of how short a time remains.

The First Amendment points are outlined in our brief.

The basic question that I think this case comes down to is whether there are any compelling justifications for the party appointment system that Puerto Rico and a few other states have adopted.

The PDP suggests in its brief before this Court that this system is necessary to preserve Puerto Rico's system for minority representation.

I submit that the Court should brush aside that argument summarily.

It was not argued below, for the simple reason that as the text of the Puerto Rico constitution and its supporting legislative history makes clear, Puerto Rico's protection of minority representation comes about through its rather complex provisions for at-large seats.

The seat here in question is a district seat that belongs to the candidate who is elected by the majority of the members of that district, the majority of the voters.

The Supreme Court of Puerto Rico did not say a word in justifying the party appointment system about any connection between it and minority representation, so I suggest that that issue is not one that the Court need look to in examining the justifications for this statute.

The basic justifications offered by the court below were that party ownership avoids the necessity for quadrennial elections by allowing appointment to fill vacancies.

That argument, I suggest, is equally inconsistent with the notion that a seat belongs to the members of the public, to the voters.

This hostility toward electoral campaigning is out of phase with this Court's own decisions on the First Amendment.

If the people of a district feel strongly enough about the political issues that are before their legislature, to want to campaign, to want to discuss intensely, far from providing a justification for suppressing an electoral opportunity, that seems to me to provide a very dramatic reason for giving the people an opportunity to express their preference through the ballot box.

If the concern here is about cost, the Chief Justice's opinion for the Court in Bullock against Carter seems to be a full answer.

There, the Court struck down a system in which candidates in primary elections were required to finance those primaries in order to save the state money.

The opinion for the Court pointed out quite soundly, in all the programs in which governments spend money, any sensible ordering of Constitutional priorities has to put the funding of the electoral process at the very top of the list of priorities.

That rationale applies here.

Moreover, what we are concerned with here is an episodic, an infrequent event.

In the last 30 years since 1952, the record shows that there have been only eight opportunities for vacancies to be filled in district seats in the Puerto Rico House and Senate, approximately one every four years, and these are seats in narrowly defined territories with only a few thousand voters, perhaps one-tenth the number of voters here in the District of Columbia, for example.

It is, I submit, inconsistent with the sound notion of Constitutional principle and representative government to dispense with the holding of a bi-election on any of the grounds asserted by the Supreme Court of Puerto Rico.

Thank you.

Chief Justice Burger: Mr. Fortas.

ORAL ARGUMENT OF ABE FORTAS, ESQ., ON BEHALF OF THE APPELLEES

Mr. Fortas: Mr. Chief Justice, and may it please the Court, I confess to a certain degree of astonishment in this case, that the proposition is urged that there is a Federal Constitutional right or a Federal Constitutional obligation imposed upon the states or upon Puerto Rico to provide for the election of state or Puerto Rican legislatures.

If there is any fundamental proposition involved in this case that has been thoroughly refuted by this Court time and time again, beginning with Minor against Happensett, it is that proposition.

On Pages 19 and 20 of our brief, we refer to some of the cases and some of the statements of this Court to the contrary.

For example, in addition to Minor against Happensett, for example, in the San Antonio Independent School District case, this Court, through Justice Powell, said that the right to vote per se is not a Constitutionally protected right.

Justice Marshal, in his dissent, stated it this way:

"The right to vote in state elections has itself never been accorded the stature of an independent Constitutional guarantee."

The law is as stated by Justice Rehnquist earlier this morning.

That is to say that the Federal Constitution does not impose upon the states, and therefore upon Puerto Rico, the requirement of providing for elected legislatures, although the Federal Constitution does, as this Court has constantly reiterated, the Federal Constitution imposes a good many obligations upon the state as to how that franchise must be administered and governed once the state has decided that the particular officials will be elected.

That is the law, and you are today invited by my able friend to reverse that provision of Constitutional law which is so deeply embedded in the decisions of this Court.

Now, there is nothing in the Federal Constitution that would support such an assertion.

The Federal Constitution is based upon the principle that the states will provide their own form of government, that the states will provide how their government shall be organized and how it shall be conducted, subject, however, subject, however, to very strict and rigorous provisions of the Federal Constitution embodied particularly and most practically in the equal protection clause, as to how the elections will be administered and how the election rights will be allocated.

That is the basic framework of our government.

It is the basic concept of our government.

There has never been, in Minor against Happensett or any other case, any challenge to that principle as the basic governing principle of our Constitution.

Now, let me say, if Your Honors please, that so far as Puerto Rico is concerned, I respectfully suggest that the observance of that principle is of even greater importance than it is in the states.

The equal protection clause, the basic fundamental guarantees of the Constitution apply to the people of Puerto Rico as they do to the people of the states.

Puerto Rico, as this Court has had occasion to remark in different contexts, however, does have a special and unique status in the American system.

Puerto Rico is an unincorporated territory, that is to say, and has always been, that is to say, there is no decision by the Congress or the people of Puerto Rico as to whether it will ever be assimilated into the state framework of the United States.

There are those who contend it should be independent, and there are those, as represented by the Popular Democratic Party, who have long advocated that Puerto Rico should be what its Spanish name in Spanish indicates, the free and associated state of Puerto Rico, the relations of which to the United States are governed by a compact entered into between the Congress and the people of Puerto Rico.

We have respectfully suggested to the Court that in considering the present problem, it is appropriate, it is necessary, it would be most constructive for the future constitutional development of Puerto Rico and for the international problems that have clustered around the unique status of Puerto Rico and which are a source of constant debate in the United Nations, in which some nations have attacked the bona fides of the United States' position in Puerto Rico and the United States' assertion that Puerto Rico has autonomy, that Puerto Rico has the right to provide for its own government, and that the people of Puerto Rico have chosen, freely chosen to associate with the United States, so we have suggested to the Court that it would be highly advantageous and highly desirable, highly appropriate to recognize that Puerto Rico has not only the autonomy to provide how its representatives will be elected, subject to the basic Constitutional guarantees, not only to provide that it has... not only does it have the same jurisdiction and power and authority as the states, but that in considering problems as to the Constitutionality or the propriety of what Puerto Rico does in providing its local government, that there should be a deference given, deference paid to its unique status, to its cultural background, to its history, to its differences.

Now, let me briefly address myself to that in the context of the problem before Your Honors.

This system of filling vacancies in Puerto Rico goes back to 1906.

That is to say, the system that when a vacancy occurs in various offices, it will be filled by appointment, by appointment in effect by the political party, goes back to 1906, when Puerto Rico was a colony.

There is no point in mincing words about it.

It was a colony.

It had... under the Folacher Act, which was adopted in 1900, two years after the United States obtained Puerto Rico from Spain.

In 1906, Puerto Rico provided that in the event of a vacancy in the office of a mayor or a municipal council, that vacancy would be filled until the next general election by appointment or on designation by the political parties.

Now, at that time Puerto Rico did not elect its legislature.

The legislative authority was exercised by the United States and by designees of the United States.

But it did have authority over... The appointment of mayors and municipal councils was governed by Puerto Rican law, and it was so provided.

And that party designation, Your Honors, is deeply embedded in Puerto Rican history, much more so than we are accustomed to in the states.

Even when Puerto Rico was a colony of Spain, and before the Autonomy Act enacted by Spain, which was in 1897 or eight, even when Puerto Rico was a colony of Spain, party organization existed in Puerto Rico and it was very powerful indeed, and it is interesting to note that the party organization then was focused on the same issues that dominate party organization today, namely, whether Puerto Rico should be assimilated to Spain, which is the counterpart of the Statehood Party now, and the MPP with which the Appellants here are affiliated, whether Puerto Rico should be autonomous within the Spanish framework of government, which is now sort of the general counterpart of the position taken by the Popular Democratic Party, the Appellees whom I represent, or third, whether there should be separatism, independence from Spain, those divisions have continued through all these years, and through the permutations and combinations, and they are reflected by the various political parties in Puerto Rico.

And from Spanish times to the present, the party organization has been a part, an essential part of Puerto Rican life.

For example, I am advised that there has never been elected to the Puerto Rican legislature an independent, a candidate who ran as an independent, although the Puerto Rican law contains very liberal and generous provisions permitting that.

I am also advised that on all issues of controversy in the Puerto Rican legislature, party loyalty, party discipline is a fact of life.

The allegiance to these three competing ideas of status is a dominant factor in Puerto Rican life.

Mr. Fortas: Counsel, your history makes me wonder, what if there were an independent elected and a vacancy occurred?

Mr. Fortas: The law provides specifically for that.

Then you have to have a general... a special election.

Mr. Fortas: Then you must have a general election.

Mr. Fortas: There is no alternative to it.

But the point here is that in 1906, this same provision for special election of mayors and municipal councils was in the law.

It has persisted in the law today.

In 1917, Congress adopted the first Organic Act for Puerto Rico.

Puerto Rico was then a colony.

The Jones Act.

The Jones Act provided for special elections to fill vacancies in the legislature.

Puerto Rico was given the right to elect a legislature then.

In 1938, that provision in the Jones Act was changed by the Congress, and it is very interesting to note, as we have set forth in our brief, it was changed on recommendation of the non-voting delegate in the Congress, which is all that Puerto Rico now has.

He said that between 1917 and 1938, there have been vacancies in the Puerto Rican legislature, but those vacancies have not been filled, because special election was required.

And he therefore recommended that the vacancies be filled, that Congress provide that vacancies in the Puerto Rican legislature be filled by appointment on recommendation of the political party to which the previous incumbent had belonged, and it was so done.

Congress changed the Organic Act of Puerto Rico to provide... to make that provision which in essence and in principle is the same provision that we are talking about here today.

Now, the next event in this history is 1952.

In 1952, the people of Puerto Rico adopted their own constitution.

That was pursuant to a compact in Public Law 600 that was entered into between the Congress and the people of Puerto Rico.

As the Court knows, Puerto Rico was still subject to the territorial clause of the Constitution of the United States.

Congress had in theory complete power to dispose of Puerto Rico, make rules for it, and in Public Law 600 there was this compact entered into, which was a historic document that had great influence throughout the world.

It provided a model on which some other nations revised their arrangements with their erstwhile territories.

And it is that constitution that various members of this Court have had occasion to write about in opinions of this Court in different contexts.

It was that constitution that provided that Puerto Rico shall have control in effect of its own destiny, its own government, subject to two things.

One is the fundamental protections of the United States Constitution, more or less as stated in the old insular cases, and two, subject to the specific arrangements with the federal government, such as free trade and various types of specific provisions.

That was a great Act.

It was an Act that affirmed the uniqueness, as this Court has stated it, of the system of Puerto Rico, and it allowed them to organize their own government, which they did in their constitution.

Now, it is very interesting to note that in the Puerto Rican constitution as it was originally drafted, there were two types of provisions that related to legislative vacancies.

One related to the at-large posts.

The Puerto Rican legislature is and has been composed of two houses, of course.

The Senate has 27 members.

Eleven of them are at-large, and 16 are selected in Senatorial districts.

The House of Representatives is composed of 51 members.

Forty are from the districts; eleven are at-large.

Now, with respect to vacancies, the constitution in 1952 provided that vacancies in the at-large seats would be filled in the historic manner, namely on recommendation of the political party to which the incumbent... with which the incumbent had been affiliated.

With respect to district Representatives and Senators, the constitution originally provided for an election of a successor.

Now, that represented... if Your Honors please, I hope I am not speaking out of turn here... it represented the profound view that most everybody has, most everybody steeped in the American tradition has of the remarkable men who were responsible for the drafting of that Constitution.

Everybody, I suppose, instinctively would prefer to have elections than appointments.

And that reflected their view.

But it didn't last.

It didn't work in Puerto Rico, and the result was that just as it didn't work under the Jones Act, the first Organic Act, and had to be changed in 1938 by the Congress, so this didn't work either for Puerto Rico, and in 1964, the people of Puerto Rico adopted an amendment to their constitution which provided that the selection... that the filling of vacancies for district representatives, which is the specific thing involved here, would be governed by laws enacted by the Puerto Rican legislature.

Mr. Fortas: What didn't work, counsel?

Mr. Fortas: The special election.

Mr. Fortas: Well, I know, but why didn't it work?

What was their judgment?

What was wrong with it?

Mr. Fortas: It didn't work because of the mechanism of the election, because of the particular quality of the controversies that occur in Puerto Rico, and I will have to take a minute to describe that, if I may, Justice White.

In Puerto Rico, from the beginning of elections, elections are held once every four years.

Once every four years there is an election for all offices, local and legislative, mayors, councils, and the legislature.

Until the last... until 1977, I think it was, the way they ran the election was this.

All Puerto Rican voters assembled in a particular place, at particular polling places, at on before the appointed hour.

The doors were then closed.

Nobody could enter the polling places after the appointed hour.

Nobody could leave until all the voting was over.

It was a wonderful system to prevent repetition.

Then it turned out it was a great fiesta.

At the same time, at the same time, in the Puerto Rican elections, this question of status, this question of status is a highly emotional, disruptive thing.

I don't have to tell the Court about what happens, what has been happening and has happened with respect to the nationalist movement in Puerto Rico, which is the advocates of independence through violence, and passions about this question of status there are unimaginable to anyone who hasn't been down there and seen it, and those appeared in the election.

The next thing is, Puerto Rico is a poor place.

There is no question about it.

It is not just whether the government can afford this.

It is a question of campaigning.

They have television down there, too, and it costs money.

Puerto Rico is a poor place.

Puerto Rico is a place that has its very special kind of folk ways, and the special election system just didn't work, and as you read the Puerto Rican election laws now, there is practically nothing that relates to a special election.

It just does not fit.

And the question here, if Your Honors please, the basic question here is whether this Court will say to the people of Puerto Rico that because of something that I can't find in the Constitution of the United States, you must do it our way.

Mr. Fortas: Counsel, how did the failure of this elective system to work from 1952 to 1964 manifest itself?

Mr. Fortas: It manifested itself in the fact that there were some positions that were just allowed to remain vacant, and were not filled, particularly the district representatives.

Well, the at-large people... I should have made clear, if I didn't, that the provision for filling at-large vacancies remained the same throughout.

That is to say, in the 1952 constitution the at-large seats, when they became vacant, were filled by appointment on the designation of the political party, just as they are today.

And the failure to work was manifested, as I said, by the fact that some vacancies were not filled, and next by the fact that when special elections were held, they were not satisfactory.

They were not orderly.

You had the passions of the election that occurred on more than a four-year basis.

Now, we may like that or not like it, but it is nevertheless true that the people of Puerto Rico would prefer to have the passions every four years instead of once in a while, instead of occasionally.

Mr. Fortas: Was there any element in the unworkability in this sense that if there is going to be an election, an open election, it may be that the other party would win the election, and the balance in the existing legislature would be upset--

Mr. Fortas: No, the--

Mr. Fortas: --or did they just prefer to have, every four years, they wanted to... once you had an election, you were going to maintain that particular balance or proportion for the full four years?

Mr. Fortas: --I think there was more of the latter, but you have here a situation where people are accustomed to an election fiesta every four years, and I may say, Justice White, that there are... that the results in Puerto Rico are fantastic.

There is about 90 percent registration of eligible voters; about 80 percent of the eligible voters vote, more than 80 percent of them.

It is a record that is unequalled anywhere else.

And it's a record that they prefer, and I see nothing in the Federal Constitution that impacts upon this.

May I hurriedly get to this question of appointment or designation by political parties?

There are in the... in the states there are 22 states... 21 states of the union plus the District of Columbia that fill vacancies in legislative office by appointment in their legislatures, 21, almost half of the states, and of those, 16... 16 of the states fill those vacancies by appointment upon designation by a political party or they have to be filled by a member of the same political party, 16 of them.

This is not a peculiar Puerto Rican situation.

It is prevalent throughout the states.

My friend would ask this Court to outlaw, to require special elections, to outlaw election in the event of any vacancy.

I don't know how that can be confined to district representatives in Puerto Rico, and not to at-large representatives.

I don't know how on a principle basis that principle can be applied to avoid its application to appointment of someone to fill a vacancy pending a special election.

I don't know how you can devise any principle that, as my friend asked you to, that would permit appointment to fill a short-term vacancy before the special election.

Puerto Rico, if the vacancy occurs within 15 months prior to a special election, it has always been provided that the vacancy is filled by appointments, and frankly, I don't know, as we have elaborated in our brief, how you can confine the principle for which my friend contests to legislative offices.

As this Court has said, an elected office, when the state decides that an office is to be elected, then federal consequences apply, whether it is a legislative office or any other office that has general governmental powers.

I exclude, as this Court has done, of course, boards and what-not that have very restricted powers.

So that the principle that my friend advocates here would apply in all of these situations in a totally impractical way.

It would apply to all legislative situations, to all appointed situations.

Now, I want to hasten... my time has expired.

May I have one moment, if Your Honor please?

On this political party, the question of whether the appointments can be made by the political party, political parties, as this Court has reiterated time and time again, are part of the warp and woof and the essence of our official elective system.

Appointment by a political party is not like appointment by the Chamber of Commerce or a labor union.

It is an appointment on designation of the political... of a mechanism that is highly regulated and that is part of our system.

As to the reasons for Puerto Rico's adoption... justifying Puerto Rico's adoption in this system, I regret I can only refer Your Honors to our brief, but the preservation, the preservation of the independent party system to which this is essential, the appointment system is essential, the assurance of representation of independent parties in Puerto Rico is fundamental not only to Puerto Rico but to this very special situation that has resulted because of the independence movement in Puerto Rico.

I regret that I must respectfully refer you to the brief for that.

Thank you very much.

It has been a great pleasure and an honor to be here.

Chief Justice Burger: Mr. Lacovara, do you have anything further?

ORAL ARGUMENT OF PHILIP A. LACOVARA, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

Mr. Lacovara: I have just a few brief comments by way of reply to my learned colleagues's arguments.

First, with respect to the argument that Puerto Rico's political status, its affiliation with the United States, means that the Constitutional principles that apply to the states do not apply to Puerto Rico to the same extent is a proposition that this Court has rejected three times in the last six terms by overwhelming majorities of the Court.

The cases are cited in our brief.

Whatever the Court decides today necessarily affects not only Puerto Rico but those states that have systems comparable to Puerto Rico's.

Secondly, with respect to the history, Puerto Rico has provided for an elected legislature since the Organic, the Jeforacher Act of 1900, and since 1902 there was provision for holding popular bi-elections to fill vacancies in the legislature.

The system of party appointment in other offices other than the House of Delegates of Puerto Rico was not adopted until 1938.

So, for almost all of the period from the acquisition of Puerto Rico from Spain up until the present, Congress and the legislature of Puerto Rico recognize the importance of popular bi-elections.

Finally, with respect to party appointment, I agree with my learned colleague that political parties are important, in Puerto Rico as elsewhere.

They have Constitutional status.

But as this Court's decisions shown, political parties have Constitutional status because they are private associations.

That is why they are protected against government interference by the First Amendment.

It stands those principles on their heads, I submit, to say that a kind of institution that has Constitutional status because of its private nature may be given the ownership of public office, the legislative office.

The judgement below should be reversed.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Rogers v. Lodge - Oral Argument

Fri, 09 Jan 2009 14:47:36 +0000

Case:

Rogers v. Lodge

Media File:

80-2100_19820223-lq-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF E. FREEMAN LEVERETT, ESQ. ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments next in Rogers against Lodge.

Mr. Leverett, you may proceed whenever you're ready.

Mr. Leverett: Mr. Chief Justice, and may it please the Court:

The question in this case is whether the Court of Appeals for the Fifth Circuit duly followed this Court's decision in City of Mobile versus Bolden, in holding that the effect of that decision was to still retain the so... called Zimmer criteria of voting dilution as being sufficient to establish an inference rather than simply requiring a presumption.

The appellants in this case respectfully submit that the court of appeals did not follow this Court's decision.

This case was filed in 1976 and attacked as an unconstitutional dilution of Black voting rights the at-large method of electing the five county commissioners of Burke County, Georgia, which had been in effect continuously since 1911.

According to the 1970 census, Burke County has a population, or had a population of 18,235, 60.91 % of which were Black.

This case was tried subsequent to the court of appeals' 1978 decision in Nevett v. Sides, holding that while discriminatory purpose must now be shown in a voting dilution case, that it could still be proven by the four discriminatory impact factors which had been identified in Zimmer versus McKeithen.

However, the trial was before this Court's decision in Mobile holding that the Zimmer criteria were no longer sufficient.

The trial court below specifically held that the 1911 law had not been enacted with a discriminatory purpose, and that Blacks had not been able to show a denial of specific voting processes.

The court concluded, however, based upon the socio-economic factors of Zimmer which the court of appeals previously had resuscitated in Nevett II that the system, quote,

"is being maintained for invidious purposes."

Prior to the decision in the court of appeals on the appeal, this Court decided Mobile versus Bolden.

Nevertheless, the court of appeals affirmed the district court, concluding that the Zimmer criteria or factors were still sufficient to establish an inference of discriminatory intent, but that the only effect of this Court's decision in Mobile had been that they were no longer sufficient to establish a presumption.

And that secondly, a finding of responsiveness was now of major consideration in that without a finding of responsiveness, the Court said, there could be no establishment of dilution.

This apparently was based upon the fact that in the Zimmer case, there had been no showing of lack of responsiveness.

In this case, the courts below relied upon the same three Zimmer factors which had been found insufficient in Mobile... slating, unresponsiveness and past discrimination.

The added factor relied upon here, which was socio-economic status that had been depressed, was also present in Mobile, although not denominated or articulated as such.

In fact, we submit that the evidence in this case was even stronger than it was in Mobile, for here, unlike Mobile, there was no evidence that there had been efforts to change the system, which as pointed out in Justice White's dissent in Mobile, had been done in such a manner as to indicate the possible inference of discrimination by the timetable or the manner in which the attempted repeal was made, as well as the effort to come in and bolster the system by in 1965 conferring executive responsibilities upon the three city commissioners in Mobile.

Notwithstanding this, the court of appeals adhered to the socio-economic disparity impact analysis of the Zimmer.

In the companion case involving Thomas County, Georgia, the court specifically reversed a holding of the district court which said that Zimmer is no longer sufficient after the Supreme Court's decision in the Mobile case.

We submit that the court of appeals erred in its evaluation of this Court's decision in Mobile, and we say that even assuming that the Zimmer analysis is still sufficient to establish purposeful discrimination, that the plaintiffs in this case failed to carry the burden, and the decision below is clearly erroneous.

Firstly, we submit that under no reading of this Court's decision in the Mobile case, can this distinction between presumption versus inference that the court of appeals read into it be sustained.

Both in Nevett, which is a 1978 decision, as well as in its companion case of Mobile which later was decided by this Court, the court of appeals below stated the Zimmer test in terms of an inference, and applied it as simply one form of circumstantial evidence subject to the clearly erroneous standard of Rule 52 of the Federal Rules of Civil Procedure.

It is significant I think that the plaintiffs do not make any belated or any great effort to support or to defend the decision of the court of appeals on this distinction.

The court's decision continuing to treat the Zimmer criteria as being sufficient is contrary to that court's own decision less than a month earlier--

Chief Justice Burger: We will resume there at 1:00 o'clock, Mr. Leverett.

Counsel, you may continue.

ORAL ARGUMENT OF E. FREEMAN LEVERETT, ESQ. ON BEHALF OF THE APPELLANTS (Resumed)

Mr. Leverett: Mr. Chief Justice, and may it please the Court:

I think I was simply commenting when we recessed that the decision of the Fifth Circuit in this case was contrary to a decision of another panel of the same court less than a month earlier in the Escambia County, Florida case, and also, it is contrary to a recent decision of the Fourth Circuit which was decided about a month or so ago.

Now, with respect to the other aspect of the--

Unidentified Justice: Both in the same wing of the... what was formerly the Fifth Circuit?

Mr. Leverett: --The Eleventh Circuit, yes, sir, that is correct.

With respect to the other part of the court's decision on the question of unresponsiveness, the appellants and the appellees are apparently in agreement that the court is in error with respect to that aspect of the holding.

We submit further, on behalf of the appellants, that while the matter of unresponsiveness was mentioned in White versus Regester without any discussion as to whether it was a proper subject for judicial resolution, that consideration of that type of inquiry should be precluded by the political question doctrine.

Justice Harlan stated it better than anyone in Whitcomb versus Chavis.

If there are less appropriate subjects for federal judicial inquiry, they do not readily come to mind.

Now, White versus Regester itself does contain the discriminatory intent requirement.

Zimmer, however, does not, and in footnote 16 of that decision, the Fifth Circuit stated unequivocally that the focus of the inquiry should be on the effect or impact the legislation being challenged.

As applied to Burke County, Georgia, we submit that since the court below found that the at-large system was not enacted for a discriminatory purpose, that there is no basis for striking it down in this case without at the same time recognizing some constitutional basis of at least some degree of proportionate representation.

This is so, we submit, because the touchstone of dilution seems to be access.

The evidence here is that in Burke County Blacks have never had any difficulty registering, voting or getting on the ballot.

Certainly, since the white primary was stricken down in 1946.

Plaintiff Lodge himself testified that Blacks are better organized politically in Burke County than Whites, that they hold rallies at churches, they have organizations that invite candidates, they even distribute a ticket--

Unidentified Justice: Mr. Leverett, do you agree or don't you that the court of appeals interpreted the district court's action as having found intentional discrimination.

Mr. Leverett: --Yes, sir, by doing this--

Unidentified Justice: But they concluded that the district court's findings should be read as finding intentional discrimination.

Mr. Leverett: --That is correct, but by relying on the same Zimmer analysis which we submit this Court had held was not sufficient to do that in City of Mobile versus Bolden.

Unidentified Justice: But if we... but assume that we were... assume the court of appeals was correct that the district court findings overall should be read as finding discriminatory intent, and the court appeals agreed with that.

Mr. Leverett: Well, if you assume that, you've assumed the case, it would seem to me.

Unidentified Justice: Well, no, I suppose we could still say that both were clearly erroneous.

Mr. Leverett: That is the point.

We are making that point, too, Justice White.

Unidentified Justice: I know you are, I know you are.

But is that the only issue, that two courts below found intentional discrimination and that that finding was clearly erroneous?

Is that the point?

Mr. Leverett: No, sir.

The basic question that we are making here is that the process by which the court found discriminatory intent is fallacious because it is a continuation of the Zimmer criteria which this Court said were impact-type only and did not establish discriminatory purpose or intent.

Unidentified Justice: Well, do you agree... however the district court arrived at it, do you agree that it found intentional discrimination?

Mr. Leverett: Yes, sir.

According to the language of the opinion, it--

Unidentified Justice: Then how can we disagree with that, especially if it's been accepted by the court of appeals without finding it is clearly erroneous?

Do you say that it's because they had an erroneous rule of law.

Mr. Leverett: --They applied an erroneous legal standard.

We say that even assuming, in this case, that the Zimmer criteria are still valid, assuming that Mobile had not even been decided, that in this case the plaintiffs did not carry the burden and that the finding--

Unidentified Justice: But would you agree that the thrust of Judge Henderson's dissent was that it should go back because they had not given appropriate weight to the Mobile holding?

Mr. Leverett: --Yes, sir.

I might say that the Fourth Circuit's decision in Washington versus Findley that just came down deals with this question and said that there was no need to send it back because in that case, at the time the case was tried, the Washington v. Davis had been decided, the parties were on notice that discriminatory intent was necessary and therefore, having not shown it, the case should be dismissed and judgment entered for the defendants.

Unidentified Justice: Mr. Leverett, do you agree that the district court can properly look at circumstantial evidence in meeting the Mobile--

Mr. Leverett: Oh, sure, sure.

I think the proper approach is set forth in this Court's opinion in Arlington.

The four or five factors, the sequence of events, whether what was done represented a substantial departure procedurally-wise, or substantive-wise.

I think the proper application of that is well illustrated by the decision of the Fifth Circuit itself in the Escambia County cases where the court considered that at the time Escambia County adopted at-large voting, it went to it right after there had been... the white primary had been stricken down there was some arguments made in the newspapers along racial lines.

That is the type of proper inquiry that we submit is appropriate in the light of this Court's decision in Mobile.

Unidentified Justice: --Of course, the district court didn't have Mobile before it.

Mr. Leverett: That's correct, sir, it did not.

But the fifth Circuit, of course, tried to rationalize that by, in effect, saying that Judge Alaimo anticipated Bolden and that he did find discriminatory intent.

And, of course, we agree that he found it but the process by which he found it is the question.

And that is, through use of the Zimmer criteria which are disparate impact analysis.

Contrary to what district court held below, Georgia abolished its poll tax in 1945.

District court seems to assume that it was not superseded until the Voting Rights Act.

Georgia did have a literacy test which was enforced until the Voting Rights Act.

It was recently repealed in the 1981 Constitution which will be voted on this year.

However, in Burke County the evidence is that in the memory of no witness has any black person ever been unable to pass the literacy test.

Moreover, the evidence was that there had never been any effort to change the at-large system up until this case was filed.

We submit that in applying all of this, in light of the evidence in the case, the contention in this case ultimately gets down to this: and that is, is inaction unconstitutional; is there a constitutional duty on a political subdivision to continually assess its political structure and change it simply in order to favor one group that says that they are entitled to elect candidates of their choice?

We submit that the answer is no, and that's what this Court said in the City of Mobile case.

We submit that the Zimmer analysis is incorrect not only because it reflects a discriminatory impact or disparate impact analysis, but also because of the methodology that it employs, in that it permits the court to grant relief in a voting-related case based upon violations in other areas, such as public education, public employment.

We submit that in doing this, the court in the decision violates the rule that the nature of the violation determines the scope of the remedy.

It puts the courts in the business of pronouncing condemnation rather than judgment in granting reparations rather than judicial relief.

The tendency of the Zimmer analysis to become preoccupied with this very thing is demonstrated by what happened to it as an evolutionary matter in the Fifth Circuit.

Originally, there were four factors in the Zimmer analysis.

One of those factors was slating.

In an early case, Hendricks versus Josephs, the Fifth Circuit said this: It is the ability of Blacks to get on the ballot which is at the core of slating.

Yet, in 1979 in Cross versus Baxter, the Moultrie, Georgia case and the Adarian case from McIntosh County, Georgia, the Fifth Circuit completely switched over and said in all, it's a question of success, and that the effect of it was to tend to merge the issue of slating with a separate Zimmer factor of a history of prior discrimination which affects present ability of Blacks to have access.

In this case, for example, the district court denied... or held that there was a... that the plaintiffs had established a lack of slating requirement, because of the fact that there were not anymore Blacks on the Democratic Executive Committee.

This was inspite of the fact that the undisputed evidence was that these posts are filled by open election on the same single-member district basis that the plaintiffs were asking for in this case, aside from the fact that about the most unimportant and insignificant job in Georgia is being a member of a county Democratic Executive Committee in a rural county.

They've never done very much.

They were originally... their original function was to conduct the primaries, and that was taken over by the probate court in 1970.

Unidentified Justice: Well, the county commissioners are rather important, aren't they?

Mr. Leverett: Yes, sir.

Unidentified Justice: How many Negroes have ever been elected?

Mr. Leverett: None in the history of Burke County, so far as we can determine, Justice.

The complete submergence, however, of the three other Zimmer factors by the one dealing with a history of discrimination came in a 1978 decision of the Fifth Circuit in Kirksey versus Supervisors where a sharply-divided court held that it was now only necessary to show a past history of discrimination and show that that carried forward present effects.

The court in that case said that it was not even necessary to even consider Washington versus Davis and the question of discriminatory intent.

In other words, this is a remedy case, not a violation case.

We submit that the bottom line of the Zimmer analysis which the Fifth Circuit has continued to apply in this case was and is, as the dissent in that case in the Fifth Circuit pointed out, reverse discrimination.

I would like now to address the question of Section 2 of the Voting Rights Act which has been argued by the appellees and mentioned by I think all of the four amicus briefs that have been filed in this Court.

We submit that Section 2 of the Voting Rights Act does not adopt a disparate impact standard.

This Court rejected that argument, we submit, in the Mobile case.

The Fourth Circuit recently rejected it in the Columbia, South Carolina case in the same terms as has been submitted to this Court by essentially the same parties.

The Court of Appeals of the Fifth Circuit in this case rejected that argument at page 1364 in footnote 11, and there was no cross-appeal from that holding.

And we submit that there are valid reasons independently of precedent for rejecting that construction of Section 2.

First, you begin with a rule that you look at the language of the statutes.

The language of the statute uses "deny and abridge", and as the district court in the Uvalde case recognized, these terms themselves connote intent or purpose.

Secondly, the Section, in using deny or abridge utilizes the language of the Fourteenth Amendment, and most specifically, the Fifteenth Amendment.

And those amendments have unquestionably been interpreted as imposing a discriminatory intent standard.

Thirdly, when Congress wanted to adopt a disparate impact analysis, it knew very well how to do so in Sections 3, 4 and 5 of the Voting Rights Act.

And, of course, the rule of statutory construction is that where in one statute Congress uses words in one section and it does not use them in another section, the inference is that it did not intend for that section to have the effect of the other sections.

Fourth, the statement of Attorney General Katzenbach that has been relied upon by appellees does not support the interpretation that they place upon it.

The Attorney General was not asked whether or not, Section 2 had a disparate impact test, or a discriminatory purpose test.

He was specifically asked whether or not the word 2 would cover a situation where a political subdivision simply just didn't open its registration offices.

The Attorney General replied, I suppose that you could if it had that purpose.

So here we have the Attorney General himself reading a discriminatory purpose requirement into the statute.

Now, it is certainly true that immediately after that, he proceeded to paraphrase the section, and in doing so, we submit, inadvertently utilized the language of Sections 3, 4 and 5 rather than the language of Section 2.

The casualness, however, with which he did this invokes and brings into effect, we submit, what this Court held in Allen versus State Board of Elections, which was to the effect that in any case where the legislative hearings and debate are so voluminous no single statement or excerpt of testimony can be conclusive.

In that case, the court applied that principle to disregard the statement of Assistant Attorney General Burton Marshall as to the meaning of voting as used in the Voting Rights Act, and held that the statute would be given a much broader scope than the words of the statute would themselves indicate.

Now, weighed against this is the statement of Senator Dirksen,... stated twice, not just once, as this Court's opinion in Mobile had indicated, both at pages 171 and 208 of the record before the Senate... to the effect that Section 2 was simply a restatement of the Fifteenth Amendment, to which Attorney General Katzenbach acquiesced.

Fifth, we submit that as a policy matter, this Court should not construe Section 2 as having a disparate impact analysis in the absence of more compelling language or legislative history than the Court is confronted with here.

The reason for this is as follows.

Section 2 applies to all 50 states, not just to a few colored states.

So being a disparate impact standard might well not have the limiting construction that this Court placed upon the effect, purpose and effect language in Section 5 in the Bier case where you held that the law was concerned only with laws that led to retrogression.

Now, if you do not apply that restriction on the language in Section 2, this would place in doubt the validity of election codes, governmental organizations, the districting schemes and congressional districts, state legislative districts and local political subdivision districts all over the country.

It would also raise serious questions about the validity of candidate and voter qualifications, and possibly require a validation procedure similar to that used with respect to employment tests under Title VII of the Civil Rights Act of 1964.

Moreover, imposing a disparate impact requirement on Section 2 would create a lot more mischief than it would even, for example, in the Fourteenth Amendment.

The reason is that the Fourteenth Amendment does not purport to protect only certain people, whereas Section 2 does.

And at least under the Fourteenth you would have to consider the impact on everyone, not just on a few.

Under 2, however, it protects only racial and language minority citizens, and a disparate impact test there would be almost mandate for reverse discrimination.

I'd like to reserve what time I have left.

Chief Justice Burger: Mr. Walbert?

ORAL ARGUMENT OF DAVID F. WALBERT, ESQ. ON BEHALF OF THE APPELLEES

Mr. Walbert: Mr. Chief Justice, and may it please the Court:

I think that one issue underlies every decision of this Court that has dealt with this matter of legislative reapportionment of racial discrimination, starting with Whitcomb and going to White versus Regester, Burns versus Fordsen and the Mobile case.

That issue is when the normal political process is going on in any community, when there is the regular give and take and black people or any racial minority may lose at the polls in that circumstance, that's too bad.

And that's part of the political process, that's the give and take that I think Justice Stevens is talking about in the Mobile case.

It's not the role of this Court to sit back as the political arbiter for the United States and say well, there are not enough Blacks elected in this county, there's not enough in this county and so on and intercede.

That's obviously a political question and is not a constitutional question.

But I think the one thing that does characterize all of the Court's decisions and starting with Whitcomb versus Chavis where again there was complete intercourse politically among Blacks and Whites.

Black people and white people were in all the parties together, they ran together, they were slated together and so on.

And the difference is when black people, when the racial minority is totally excluded from the political process on account of purposeful discrimination, you've got a constitutional problem and you don't have the normal give and take of the political process where this Court has no function.

Unidentified Justice: Well, would there be any question about that if you... if the fulcrum of your statement is purposeful discrimination?

Mr. Walbert: Well, Your Honor,--

Unidentified Justice: I suspect your friend would not disagree with that.

Mr. Walbert: --Well, I think what I'm referring to what the Court has held, for example, in White versus Regester, and I would like to look at the findings in that case and what was relied upon to find exclusion of the political process.

And in White versus Regester... and again, Justice Stevens and the whole Court in the plurality opinion distinguisher white on what ground?

The fact that there was no evidence in Mobile... rather, in distinguishing Mobile from White they say there's no evidence there of any real exclusion from the political process that is a result of any kind of discrimination, purposeful or not.

And the question here, I think, the first question is what is this kind of exclusion from the political process.

Now, I think this case... the findings of this case in the trial court and the court of appeals show as strong an exclusion and omission from the political process of the black people in Burke County as you could possibly have in any case.

The first thing that... and again, let me refer to Mobile.

The district court in Mobile made a finding that black people did not have access to the political process.

That finding was based on one thing and only one thing, and that was racial block voting.

Unidentified Justice: Is it probably not true that there are more women of voting age in the United States than there are men?

Mr. Walbert: I think that's slightly true, statistically.

Unidentified Justice: What's the ratio of women holding elective public offices as--

Mr. Walbert: Your Honor, I don't think at-large elections I don't think could have the purpose or the effect of discriminating against women since they don't live in segregated areas.

Unidentified Justice: --Well, I'm getting at a different aspect of it.

Mr. Walbert: All right.

Unidentified Justice: There is only a small percentage of elective offices in this country that are held by women.

Is that not so?

Mr. Walbert: I think that varies from where you go, place to place, and as obviously in any political question you've got to look at the facts of that political environment to determine--

Unidentified Justice: Well in the country as a whole.

Mr. Walbert: --I suppose that's probably true.

Unidentified Justice: Is that a result of some purposeful discrimination, or is it just the disinclination of women to run for elective office, or maybe the disinclination of some voters to vote for them?

Mr. Walbert: With all due respect, Mr. Chief Justice, I don't know what the cause of that is, but I do know what the cause is in Burke County.

I think, with all respect, the findings of fact of the district court here show quite clearly why it is.

We do have findings here.

Unidentified Justice: Surely, women were subject for many, many years before the Constitution was amended, to an exclusion from the political process, were they not?

Mr. Walbert: I'm sure that's true.

Unidentified Justice: Conscious in the sense that they were not permitted to vote.

Mr. Walbert: I'm sure that's true, and possibly this Court should address that issue in another case.

But I don't think it has to do with the Burke County facts and what the issue is in this case.

Because we show--

Unidentified Justice: Well, does it not bear?

You said no one has been elected to public office in this jurisdiction, and relatively few women are elected to public office in this country.

Mr. Walbert: --Well, Mr. Chief Justice, let me--

Unidentified Justice: But that doesn't mean that someone is discriminating against women.

Mr. Walbert: --Certainly not.

Unidentified Justice: You can't draw that inference, can you?

Mr. Walbert: I would certainly not draw that inference in terms of any constitutional conclusion.

We're not trying to do that in this case by any stretch of the imagination.

We are certainly not trying to do that.

I think that what we have shown... and I would like to point out that it is certainly, it is not accurate to say that the district court found no violations of the explicit right to vote in terms of casting your ballot and registering in this case.

I think that we ought to read exactly what was found, and that sentence which is quoted in the appellant's brief leaves off after the sentence.

Which is that there were no violations exactly like those in Hinds County found here.

Unidentified Justice: What are you reading from now, so we can--

Mr. Walbert: In the Jurisdictional Statement in the court of appeals' opinion, an in footnote 38 they're referring to the district--

Unidentified Justice: --What page is that on?

Mr. Walbert: --I'm sorry, 44a of the Jurisdictional Statement in the Appendix.

Reading from that it says, of particular significance, given the plurality position in Bolden that the Fifteenth Amendment violation occurs only when there's proof that the right to register and vote was directly impinged, is the district court's finding that such overt conduct was taking place even at the time the present lawsuit was filed.

Now, the evidence to support those findings, which I don't think are shown is clearly erroneous in this case, were overwhelming.

Because if you go back to when the 1964 Voting Rights Act was passed, you find a refusal by the county from then on to provide registration opportunities for black people.

There was on registration site that was in the county, in the county seat.

That was a 829-square mile county.

The evidence is undisputed in the findings of the trial court are that black people, because of their tremendous--

Unidentified Justice: Mr. Walbert, did the district court grant any relief for this particular interference with access to the polls?

And if not, why not?

Mr. Walbert: --Well, I think for this reason, Your Honor.

I think that there's obviously a more major issue.

We did not ask for specific relief on that question.

Unidentified Justice: Well, I wonder if it is a more major issue, because if there were unrestricted access to the polls, if everybody of voting age voted, it would seem to me that your clients would be better off with the at-large system because you'd have a majority of the voting age population.

Mr. Walbert: Again, with all due respect, Justice Stevens, I think that would be not looking at all the findings in this case, and the showing that the exclusion from the political process, the inability to deal in it, is more than just a product of registration discrimination.

Unidentified Justice: But is the exclusion from the political process something that the court had the power to remedy?

Mr. Walbert: I think it did in the sense of this particular statute.

That statute is--

Unidentified Justice: Then why didn't it do that?

That's what puzzles me about the case.

Mr. Walbert: --Well, the court of appeals I think addresses that very well, because it talks about... and I think that may be on page 55a.

And they say there, Justice Stevens, and I think this is the best answer to that question,

"We conclude that the remedy ordered is not only permitted, but under the facts presented it may be required."

"The picture the plaintiffs paint is all too clear."

"The vestiges of racism encompass the totality of life in Burke County, discriminatory acts of public officials enjoy a symbiotic relationship with those of the private sector, and the situation is not susceptible to isolated remedy."

Unidentified Justice: That doesn't clearly answer my question.

Mr. Walbert: Well, this is no longer--

Unidentified Justice: Why didn't it do anything in that regard if there is a problem of access?

Maybe it wouldn't have been enough, but the judge apparently didn't find impediments to the polls that needed to be removed.

Mr. Walbert: --Well, I don't think that's true.

As the court says, it was only because of the court's pressure that there was any addition in registration sites.

The court did pressure that.

That's the finding of the court.

Unidentified Justice: But he didn't enter a decree that had anything to do with registration sites.

Mr. Walbert: I think he was able to accomplish the addition--

Unidentified Justice: And that puzzles me, because if it was as serious a problem as you indicate, I just can't understand why a district judge wouldn't have done something to correct the situation.

Mr. Walbert: --Well, Your Honor, there was no specific request for that.

The district court did quadruple the--

Unidentified Justice: Well, even more surprisingly then, why would there be no request for that kind of protection?

Mr. Walbert: --Because I think it was very clear to us that it really would not have remedied the problem.

The exclusion--

Unidentified Justice: Well, but it doesn't have to be a total remedy to be something that would be appropriate as part of an overall remedy.

Mr. Walbert: --Your Honor, under... the at-large election system is really the linchpin in the entire structure here which keeps black people out of the pri--

Unidentified Justice: Well it wouldn't be if there were unrestricted access to the polls.

Then you'd be better off with the at-large system.

Mr. Walbert: --That's not true, Your Honor.

It's not a Black majority county anymore.

I'd like correct that allegation.

Unidentified Justice: Well, it was according to the allegations in the complaint.

Mr. Walbert: It was at the time of the 1960 Census, they were saying.

At the time of trial, and--

Unidentified Justice: Well, the allegation in the complaint speaks as of the present.

It doesn't say anything about the Census.

Paragraph 11 alleges the population.

Mr. Walbert: --Your Honor, speaking of majority.

The voting age population.

There is a substantial disparity between actual population and voting age population in this county.

If you go to voting age population--

Unidentified Justice: Paragraph 11 deals with voting age, yes.

Mr. Walbert: --At the time of trial and according to the 1980 Census, which is the most recent thing we have, it is a black minority county by voting age population.

Unidentified Justice: What was that figure again?

Mr. Walbert: It was the 1980 Census.

Unidentified Justice: 1980.

But what was the figure?

Mr. Walbert: It's about 47 % is the percentage of Blacks at this time in the county.

Unidentified Justice: How would you characterize the 53?

Is that one solid homogeneous unit, are there any Hispanics or any other ethnic groups?

Mr. Walbert: No, it's essentially homogenous in terms of--

Unidentified Justice: Does the record show that?

Mr. Walbert: --The census data that is in the record shows that, yes.

I think, Your Honor, too, to look at these other exclusionary factors.

Let's look at the Democratic Party which is being always continually belittled as being insignificant in this county.

The Democratic Party, the Democratic Executive... it's a one-county party.

It's still the old traditional one-county... one-party county.

The Democrats are always elected to local office.

The Democratic Executive Committee contains all those people who are elected to office.

You can be little being a member of the Democratic Executive Committee, but unless you are a Democratic Executive Committee member, as a matter of fact you do not hold office in this county.

So you can say it's not important, but it obviously is very important.

Unidentified Justice: Well, which comes first, here?

Are they elected first and then become a member of the committee or do they become a member of the committee first and then get elected?

Mr. Walbert: Well, there's more than just elected officials in the party.

To take some examples, people--

Unidentified Justice: I'm talking about the Executive Committee.

Do they get on the Executive Committee because they hold an elective office?

Mr. Walbert: --No, there's no formality like that.

No, Your Honor.

Unidentified Justice: Mr. Walbert, I'm puzzled by the district court's methodology here.

On page 71a, the district courts makes the finding which you quote on the first page of your brief, I think, that moreover, it is evident that the present scheme of electing county commissioners, although racially neutral when adopted, is being maintained for invidious purposes.

Now, there are two findings on the question of intent.

One, there was no intent when adopted but is presently being maintained with a discriminatory purpose.

And I can understand a district court's summarizing the evidence which led it to that conclusion.

But if the district court's approach is consistent with Mobile, I'm at a loss to know why you went through all these so-called Zimmer factors later in the opinion, as if he still hadn't covered the ground.

Mr. Walbert: I think there's two reasons for that, Justice Rehnquist.

I think the district court in a way... Zimmer was still the law, in a way, in the Fifth Circuit.

And as the Fifth Circuit clearly says, though, in this case, Judge Alaimo did something more than just a Zimmer analysis.

And remember what the Zimmer analysis used to be before Mobile.

That was, you add up three categories and if you win on two or three, it's a legal presumption.

It's sort of like... it's a game almost, in a sense.

Judge Alaimo did this.

He categorized the evidence according to the Zimmer categories, and I think he was right in doing that.

But it does not create a legal problem like Mr. Leverett says because of this: all the evidence you could think of to prove intentional discrimination fits in one Zimmer category or another.

To say that you outline the evidence by the Zimmer categories almost says nothing.

There's no defect in the district court's opinion because he organized it under the Zimmer categories.

For example, the very first one, the first Zimmer category, is access to the political system.

Now, I can't think of any evidence of intentional discrimination in using the at-large system that really wouldn't fit under that category.

I think the question here is... and this has always been the problem with Zimmer because it's so, kind of an amorphous thing, but the question is what was the evidence and what were the findings underneath those Zimmer categories.

That's the key thing.

Not whether or not he outlined it according to Zimmer.

And again, let's look at Mobile because Mobile made a finding that there was no access to the political system in that case.

That was based one thing, and that was racial block voting.

In this case, it was based on much more than that... registration discrimination, exclusion from the Democratic Party, which is vastly more exclusionary type of evidence than occurred in White versus Regester where it was just some kind of a private slating organization.

We had the freeholder requirement.

There's always been a freeholder requirement to run for county commissioner, and that has a devastating impact on the ability of the black people to run.

So I think that, again, just the fact that Zimmer is used by the district court as a method of organizing the evidence does not tell us that there's something wrong as a matter of law.

And the court of appeals looked very closely and said that the district court did, in fact, make a separate and independent finding of intent.

And I think this Court should, in some part, defer to that decision as well.

Unidentified Justice: Mr. Walbert, I guess one of the important things we have to resolve in this case is whether the court of appeals appropriately articulated the standards under Mobile versus Bolden, and the court of appeals in its opinion placed great emphasis on the finding of unresponsiveness.

Is that a requirement in your view of Mobile, or is that sufficient under Mobile, and would you address yourself to the court of appeals and whether it adhered to the Mobile standard.

Mr. Walbert: Yes.

I think Justice O'Connor has added in a new burden on the plaintiffs.

It said it as a sine qua non of prevailing, you just prove it as an essential element of the case even if you proved intentional discrimination.

So I think in that regard, it adds something in that Mobile never talked about or never suggested and we would say A, that's wrong, but B, it has nothing to do with this appeal.

Because all that could have done was hurt us; it could not have hurt the defendant.

The court does not give controlling weight to the question of responsiveness; only controlling against the plaintiffs.

It does not say if you prove it, that's a strong inference or presumption of discrimination.

It expressly says that in one of the footnotes, number of which I can't recall offhand, but it says that responsiveness is significant only in its absence because that's failed.

It does not accord undue significance at all to proof of responsiveness, in terms of inferring discrimination.

Unidentified Justice: Isn't this, in your view, this is based on the facts of this case.

Mr. Walbert: Absolutely, Your Honor.

Unidentified Justice: That the district court made the finding of discrimination, and you don't want us to go any further than that, do you?

Mr. Walbert: That's correct, Justice Marshall.

And it is clear and the court of appeals reviews the whole record and it says, this is what was done.

There was a finding of intentional discrimination in maintaining the system.

Unidentified Justice: And that's all you want.

Mr. Walbert: And that's all that needs to be assessed.

I think that we have the question of whether or not Zimmer, or Mobile, was followed.

And I think there's a tremendous scholastic analysis of Zimmer and the law in the fifth Circuit's opinion.

And you can look here and you can look there and you can make something out of this language or that language.

But fortunately, the Fifth Circuit has a little section in its opinion which says what is the rule established by Zimmer?

And that is on page 39a of the Appendix of the Jurisdictional Statement.

And I think if this Court finds that that is inadequate, then I think Mr. Leverett's right.

I think the case should be reversed as to the finding of intent.

But I think that decision of what the rule established is entirely correct and totally in accord of what the plurality... even the plurality opinion said in Mobile.

And that's this: First of all, the court says that according to the plurality... and again, the Mobile, the Fifth Circuit, rather, in this case tried to follow the Mobile plurality.

It didn't try and go off in any other direction; it tried to follow the plurality opinion.

It said discriminatory purpose is necessary in challenging the maintenance of an at-large election system.

That's the first thing, and that's certainly consistent with the plurality.

Secondly, it says that you may infer intent from the totality of the circumstantial evidence.

There now is no dispute over that, Mr. Leverett agrees with that.

The third thing it says is an essential element of the prima facie case is unresponsiveness and we just talked about that.

Now, the next thing in here is really where he talks about Zimmer and I'd like to read this portion.

It's about three sentences and it says this:

Unidentified Justice: What page are you on?

Mr. Walbert: --This is page 39a of the Jurisdictional Statement toward about six lines up, eight lines up from the bottom.

And it says, The Zimmer criteria may be indicative but not dispositive on the question of intent.

Those factors are relevant only to the extent that they allow the trial court to draw an inference of intent.

The Zimmer criteria are not the exclusive indicia of discriminatory purpose, and to the extent that they are not factually relevant in a given case, they may be replaced or supplemented by more meaningful factors.

Even if all the Zimmer and other factors are established, an inference of discriminatory purpose is not necessarily to be drawn.

The trial court must consider the totality of the circumstances and ultimately on the precise issue of discriminatory purpose, and that is the rule established by the court of appeals in this case, and that complies, in my opinion, absolutely 100 % with the plurality opinion in Mobile.

The court of appeals then went on to apply it to the facts of this case and said that's just what the district court did; it made that ultimate, precise finding of intentional discrimination and intentional motivation and purpose in using the at-large system, based on all the circumstantial evidence available to it.

And the evidence here... again, it just pales by comparison in the Mobile case, if we look at that case.

There was no evidence whatsoever of anybody being excluded from the political process except by racial block voting.

There was no evidence at all of being excluded from the process.

District court found as a matter of fact that black people participated openly and without hindrance of any sort in the political process in Mobile.

True, they lost at the polls, but that's certainly not enough.

In this case we've got continued efforts to exclude people from the political process through the findings of the district court on voter registration and not allowing voter registration to be accessible.

And you know, it's interesting, you know voter registration has been restricted in this county since the Voting Rights Act was passed.

You say well, is that discriminatory?

Well, 99.7 % of the white people in Burke County were registered as of 1968, according to the facts in the record.

We had judicial notice of that taken on I think page 220 of the record.

So when you talk about having restricted access, and making it very difficult--

Unidentified Justice: That's a very high percentage, isn't it?

Mr. Walbert: --It's a very civic-minded, white community.

Unidentified Justice: Throughout the country, have you anything in this record to suggest what's the national--

Mr. Walbert: We have.

The only thing there is, Chief Justice Burger, is as to Georgia.

We have a number of the Georgia counties in there.

We do not have the national average.

There is also evidence... and again, I--

Unidentified Justice: --What percentage of the minority population are registered?

Mr. Walbert: --Well, it was negligible in 1965 and it has finally--

Unidentified Justice: It was practically zero in 1965.

But currently.

Mr. Walbert: --I think it's about 40 %.

Unidentified Justice: 38 % was the figure that I thought I recalled.

Mr. Walbert: 38 % of the registered voters are black, and 62 % are white, but I'm not sure what the percentage of whites and blacks are.

Unidentified Justice: And 40 % of them are registered, is that it?

Mr. Walbert: I think that's not right.

I'm not sure what the exact number is on that and I wouldn't want to say without actually calculating that, at this time.

Unidentified Justice: Mr. Walbert, isn't it probable that in every colored jurisdiction in the South where there was substantial impediment to voting prior to 65 that you would have a case proved upon the Zimmer factors by virtue of that history?

Mr. Walbert: Your Honor, again--

Unidentified Justice: Regardless of whether it's at-large or what.

Whatever it is, these factors would prove invidious intent, wouldn't they?

Mr. Walbert: --I think maybe the best answer to that is the only other written order I know of that Judge Alaimo rendered in this case showed Zimmer-type factors in the sense Your Honor may mean, and then they lost.

That's the McIntosh County case that Mr. Leverett referred to.

Unidentified Justice: Is that right?

Mr. Walbert: So I think that's absolutely not true.

I think you can look at the record and see that that did not occur.

And this case is an extreme case in terms of the facts.

I mean, to have manipulation of the voter registration process in 1976 I think tells us a lot.

I think to have the county commissioners calling black people niggers in the county commissioner meetings, which is the evidence in this case, that says something about racial attitudes.

I think the refusal to--

Unidentified Justice: And tests asking such questions as how many windows there are in the White House.

That was another one, wasn't it?

Mr. Walbert: --Well, sure, the voting... yes.

I mean, I don't think anybody here could pass the voter registration test.

Nobody in this courtroom, and not any member of the bar of this Court could pass the Georgia test.

Unidentified Justice: I tried and I failed.

Mr. Walbert: I think Constance Baker Motley failed, too, from what I heard at one time.

But I think that, again, the evidence--

Unidentified Justice: That's true in so many... the thing that puzzles me is whether it's the district boundaries that are the remedy for that kind of very plain evil.

It certainly--

Mr. Walbert: --Your Honor, all I can say is the best answer to that is to just read the district court's opinion and read the Fifth Circuit opinion, and I honestly think there can't be much doubt about the inadequacy of that one little remedy.

That is part of the problem.

But I think, you've got--

Unidentified Justice: --Well he didn't do anything to remedy this kind of impediment to access to the--

Mr. Walbert: --That would not help the Democratic Party exclusion; that would not help the finding of the district court that black people cannot campaign in this county because of the deep-rooted racism in the county.

That would not have touched that.

You're excluded from the political party... you can't campaign in Burke County if you're a Black, according to the findings of the district court, which were affirmed by the court of appeals.

That's extreme findings.

There is no political process here going on, Justice Stevens, in the sense that you talk about it in Mobile.

There is no give and take.

That doesn't exist in Burke County, and by no stretch of the imagination is that characteristic of the South today.

In fact,--

Unidentified Justice: --Well, if all those things are true, I don't care what your boundaries are, they just don't have a chance.

Mr. Walbert: --Well, I think that an interesting thing happened after the district court's order in 1978 which was ultimately studied by this Court, but five districts were set up, and we immediately saw for the first time in the history of the county five black people qualified for each of those district election posts, pursuant to the district court order.

I think that speaks quite loudly in terms of what would happen to the political process if you had majority black districts, which is inevitable if you re-district the system.

That is absolutely inevitable.

Then I think you're going to see a complete change in the political behavior in the political process.

I think that's inevitable.

And I don't think that isolated remedies,... as the court of appeals said, an isolated remedy will not do it in Burke County.

There is too many dimensions to this problem, and the linchpin of it is the intentional maintenance of the system... and again,--

Unidentified Justice: The irony of the remedy is that in a county which according to the facts found by the district court... you tell me the 1980 Census is different now... the majority black county, he divides up five districts and gives majority whites... the whites are in the majority in three of the five.

I could imagine people with the racially-discriminatory purpose on the white side of the ledger wanting that remedy.

I suppose it would be unconstitutional if they did.

Mr. Walbert: --I think the key is to look at what the purpose was.

I don't know if we should conjecture about this or that.

I mean, there was found to be a discriminatory... the purpose here was to discriminate in the use of at-large elections, in this case under these facts.

And I think that's really the key to it.

And we shouldn't say what might have happened over in Mobile or what might happen in the next county over in Wilkes County, what might happen in Augusta, Georgia.

What happened here is that the district court found, based on all this incredible evidence, that there was--

Unidentified Justice: Would this remedy be unconstitutional if there were evidence in the record that some white bigots favored this way of getting the three-to-two majority control?

I could imagine that could... you know, sometimes people of the same race have different views as to what's in their best interest.

Mr. Walbert: --Sure.

I think not, Your Honor, because I think, again, something is very clear from this record.

And that is black people will be excluded so long as the at-large system is maintained, period.

That can be remedied only by having a district election system, period.

Those two things are unequivocal.

So, to remedy the existing exclusion, if you can't do it by keeping at-large, you must have a district system.

Now certainly, I can conceive of gerrymandering the system so you could have allegations of racism or racial discrimination as a gerrymander, and that's conceivable.

But to say that districting somehow has a purpose or intent to discriminate or is unconstitutional I do not see that that is possible on the record or the facts of this case.

That isn't possible.

Unidentified Justice: You would be making the same argument if 60 % of the population were black... 60 % of the voting age population were black.

Mr. Walbert: Your Honor, I think we don't have that case.

I think, again, I think the key thing--

Unidentified Justice: But when this suit was filed you had, what, 53 %?

Mr. Walbert: --Well, the voting... it had been... if you look at from 1920 on--

Unidentified Justice: Let's assume you had 60 %.

Mr. Walbert: --It would depend entirely on the facts of the particular county.

Unidentified Justice: Same facts, except 60 %.

Mr. Walbert: 60 % black voter registration?

Unidentified Justice: Yes.

Mr. Walbert: I suppose you'd have to decide whether or not blacks had any possibility of becoming a majority of the registered voters.

If all the other barriers were removed, and in this county it is clearly impossible, so I think--

Unidentified Justice: Why?

Why?

Mr. Walbert: --Well, as the findings show, the--

Unidentified Justice: I'm talking about now and not 15 years ago.

You mean if a Black shows up to be registered, he is not allowed to register?

Mr. Walbert: --Your Honor, I think that the registration has been made inaccessible.

We have black people who are too poor to get to the polling places, according to the finding.

They can't even get to the polling places in this county and the state law will not allow you to vote by absentee ballot if you have no money to buy transportation.

If you're physically handicapped, you can vote that way.

But if you're too poor to get to the polls... and I think an expert witness called by Mr. Leverett, Dr. Robinson, testified that he was astounded at the percentage of black people who had no transportation to even get to the polls in this county.

He was astounded by that fact.

So I think you've got to... you know, under the precise circumstances of this county, you've got a very severe case, Justice Powell.

You can't really say what would happen over here if you changed this fact, because you don't have that fact in this county.

Unidentified Justice: In some states there are statutory prohibitions against rounding up voters and taking them in in a truck or car or a bus.

Any such statutes in Georgia?

Anything wrong--

Mr. Walbert: Of driving somebody to the polls?

Unidentified Justice: --Yes.

Mr. Walbert: I've never heard of a statute like that in any state, Mr. Chief Justice.

Unidentified Justice: Well, there are some.

Mr. Walbert: It is not illegal to take--

Unidentified Justice: There's nothing in Georgia that would prevent someone from renting a bus and going around and getting voters.

Mr. Walbert: --It is legal to take somebody else to the polls, and I don't know of any number limitations.

I mean, there's limitations on how many people you can assist at the polls that might be construed... maybe that's the kind of law Your Honor is referring to.

Maybe that can be construed to make it illegal to even do that.

I think--

Unidentified Justice: Is this a rural county.

Mr. Walbert: --Yes, it is.

Unidentified Justice: So one limitation would be money, wouldn't it?

Mr. Walbert: Fifty-three percent of the black people in Burke County live under 75 % of the poverty level.

They're poorer than poor in Burke County.

The people in Burke County don't have the money to rent a bus to take the other people to the polls.

That's not even a practical situation in this situation.

It is an intense and extreme case.

It is not something you can transfer from one place to another.

I think I would finally, Your Honors, like to mention the Voting Rights Act here and Section 2 which Mr. Leverett addressed because I think that that provision, of course, has not really been ruled on by this Court yet.

And frankly, I think this Court ought to decide this case based on Section 2 rather than getting into these constitutional issues.

Our position on Section 2 was addressed by the court in Mobile by, I think, five or six of the justices and there was no majority opinion under Section 2.

The plurality said that it's the same thing as the Fifteenth Amendment, no more.

And in dissent, Justice Marshall and Justice Brennan said it is... it covers effect as well, and it covers these kind of practices, and Justice White and Justice Blackmun and Justice Stevens took no position on Section 2.

So there's no opinion of this Court, and I think that this Court ought to seriously consider that issue.

And our position is not, as Mr. Leverett says, that everything with any impact or effect on black voters is illegal under Section 2.

Our position is simply that where you have a neutral device that perpetuates these clear consequences of past purposeful discrimination, then that is reached... those kind of effects and only those are reached by Section 2 of the Voting Rights Act.

I think that if we look at the plurality opinion we can see one problem with it right away, and that is that it holds that Section 2 applies only to outright and absolute denials of the right to vote only if you are not allowed into the voting booth, and that's a problem.

Because the coverage provision of Section 2 is exactly like the coverage provision of Section 5.

That is, the kind of practices that are covered has exactly the same language.

There's no question about that.

This Court held unanimously I think it was in Allen versus Board of Elections that that language covers at-large elections.

So the only question I think we really have to recognize that the plurality was in error was with regard to that construction, that aspect of Section 2.

And it really should seriously... I think the Court should seriously consider that issue and dispose of this case on a Section 2 ground.

Now,--

Unidentified Justice: What did the court of appeals say about that issue?

Mr. Walbert: --They followed the plurality.

They followed the plurality ruling, Your Honor, and they just followed the plurality.

They said that we did not... that Section 2 did not give a cause of action above and beyond what the Constitution or the Fifteenth Amendment would in its own right.

Unidentified Justice: So your Section 2 argument was presented--

Mr. Walbert: Oh absolutely.

We pled it in our complaint, we raised it at all stages of the case, and we presented it to the court of appeals and it was rejected.

But we do rely on that in appeal.

Now, I think that the legislative history is very clear on this, too.

There is Attorney General Katzenbach's statement.

This court has said over and over that Attorney General Katzenbach's statements about what the Voting Rights Act meant are very important because he wrote it.

This is an administration proposal.

And finally, Your Honors, the 1981 legislative history confirms all this where the members of Congress have testified that it is supposed to be an impact test.

Thank you very much.

Chief Justice Burger: Mr. Leverett, do you have anything further?

ORAL ARGUMENT OF E. FREEMAN LEVERETT, ESQ. ON BEHALF OF THE APPELLANTS-- Rebuttal

Mr. Leverett: Mr. Chief Justice, and may it please the Court:

We take issue with counsel when he says that this case differ from the facts in Mobile.

All I can suggest is that the Court read the district court decision and compare the findings and the facts there with those in this case.

Counsel says that the court pressured the registration sites and achieved the three additional registration sites.

The commissioners voted on February 10, 1976 to add these new registration sites in response to the request of the organization that brought this case.

This case was not filed until April 5th, approximately two months later.

It is certainly true that the sites were not opened until a week or ten days prior to the election, but they were opened in response to a request and not in accordance with any pressuring from the court, and the district court's statement to that effect is completely without any evidence at all and is, in fact, not true.

Counsel made the statement that registration has been restrictive in Burke County.

I cannot equate the fact that until 1976 there was only one registration site to indicate restriction of the right to register.

Burke County has only 18,000 people.

The plaintiff himself admitted that there were probably not more than 2000 people who even were potential voters who had not registered.

Unidentified Justice: How many square miles is it?

Mr. Leverett: About 800 square miles, which is about a square about 28 to 29 miles, with approximately 18,000 people.

And I would further submit that the evidence in this case shows that notwithstanding the cries about we need these registration sites, the undisputed evidence is that in one of these registration places, only 50 or 60 voters had been registered by the time of the trial there, and another one less than 100.

Before I came up here this past week I checked on it and it's still less than 100 in each of the new registration sites, which indicates that they were not needed that much after all, anyway.

Unidentified Justice: How many registration sites now?

Mr. Leverett: Mr. Chief Justice, there are at least three.

I'm not sure about the one in Goth.

I asked Mr. Lewis and he is not sure.

There would be three at least, one at Sardis, one at Midville and one at the county site in Waynesboro.

There may be one at Goth, I'm not sure.

It was originally established, the man had some problems, he didn't know how to function.

They finally had to pick up the cards and it was put somewhere else.

Then the last statement was made that the... just look what happened when the court order relief.

Of course, two of the plaintiffs in this case ran in that election, and I'm sure that there was some encouraging of others to run to make a demonstration of response.

And of course, I might say that one of the plaintiffs ran after the plaintiff's plan had been approved, which deliberately gerrymandered the lines to put there of the incumbent commissioners in one district against Mr. Lodge, and they even tried to amend it to put a fourth one in, but the court did not go that far.

We submit that the judgment below should be reversed.

Chief Justice Burger: Thank you, gentlemen, the case is submitted.

Attribution:

The Oyez Project

Featured:

Mobile v. Bolden - Oral Argument

Sun, 20 Jun 2010 20:42:30 +0000

Case:

Mobile v. Bolden

Media File:

77-1844_19790319-argument.mp3

Related Transcript:

77-1844_19790319-argument.xml

Transcript:

Argument of Charles S. Rhyne

Chief Justice Warren E. Burger: The case is submitted we'll hear arguments next in 1844, City of Mobile against Bolden and the consolidated case.

Mr. Rhyne we'll wait for the Court going to be clear a little bit.

I think we may proceed now whenever you're ready Mr. Rhyne.

Mr. Rhyne: Mr. Chief Justice, and may it please the Court.

The issue in the case that I present to you is whether Mobile's election system, under which it elects its commissioners in at-large election is constitutional.

Now Mobile is a city of a 190,000 people.

One-third of them are black.

There has never been a black commissioner elected and I think that the ultimate issue that is presented to this Court in this case is whether or not these blacks who are the plaintiffs in this case are deprived of the equal protection of the laws.

Are they deprived of equal access and equal participation in the election system on Mobile as they alleged in their complaint?

Justice Potter Stewart: Can you tell me Mr. Rhyne, I know that commissioner form of municipal government is a very common one but its one with which I have only a passing familiarity.

Commissioners have both executive and legislative powers?

Mr. Rhyne: Yes, they do.

That's really the big distinction between a commission form of government and say the merit council.

Each commissioner is elected as the finance commissioner, or the safety commissioner, or the public works commissioner.

Justice Potter Stewart: Well, that specialization's been true only fairly recently.

The -- the commission form of government as I remember from reading the briefs again in Mobile in 1911, was it?

Mr. Rhyne: Yes, it did.

Justice Potter Stewart: And the specialization, at least officially, the specialization is more recent, isn't it?

Mr. Rhyne: I believe that as a matter fact the specialization in so far as prescribed by the law was laid out in 1965.

Justice Potter Stewart: Alright.

Mr. Rhyne: But Mr. Justice Stewart, I think it has always --

Justice Potter Stewart: There's always been an effect to those special instances?

Mr. Rhyne: Yes, anyone who run for the Commission.

Say, I'm running for the finance post because I'm an expert in finance.

I am running for the police or safety post because I am an expert in police or I am running for the public works department because I am an expert in them.

I guess a big difference between the commission form which is more like the city manage of form than any other class.

Justice Potter Stewart: Unlike the two.

Mr. Rhyne: It is.

Justice Potter Stewart: But am I then correct in understanding that all of the legislative power, and all of the executive power of the municipality resigned in these three commissioners?

Mr. Rhyne: That is true.

That is true.

They --

Justice Potter Stewart: All of those powers?

Mr. Rhyne: All of the powers.

Justice Potter Stewart: From the city manager for the government of course the city managers and exclusively an executive.

Mr. Rhyne: Yes, It's right.

Justice Potter Stewart: And the council is the legislature?

Mr. Rhyne: That is right.

And I was saying that when they do the administrative executive work then will exceed the managers --

Justice Potter Stewart: But then they also enact the ordinances, do they?

Mr. Rhyne: They also enact the ordinances, but the people know which of the three are responsible for each of the functions of the city and as of necessity this form of government which began around the turn of the century was elected to wipe out the corruption Mayor Alderman form that was causing a lot of problems at that time and it gives each commissioner absolute responsibility to each voter, and --

Justice Byron R. White: Mr. Rhyne, you've just explained that the people run on a place basis here in Mobile.

Now, it seems to me that I grew up in a place where we had the commission form of government but each one was appointed by the mayor to the public works or public safety or what it was.

But here, the candidates run for a specific position?

Mr. Rhyne: Yes, Your Honor, that's true.

I think one of really great things about the field of the municipal government, and I've been in since 1937 as every city's different when you come right down to it.

You can't say that one city is precisely like another, I don't care how you go about it and how you describe it.

Chief Justice Warren E. Burger: But isn't there are common denominator in terms of having them exercise as Mr. Justice Stewart suggested both executive and legislative functions?

Mr. Rhyne: Yes.

Chief Justice Warren E. Burger: That's the common denominator of the commission --

Mr. Rhyne: Yes.

Chief Justice Warren E. Burger: -- form, isn't it?

Mr. Rhyne: Yes, it is and they have to adopt the policies and then carry them out, but I think the major thing is that the people know when they vote for them that they're voting for this man but of course he is an expert in finance and this man is an expert in police safety and this man of because he is an expert in public works, and regardless of whether or not they run as such as they did not prior to 1965, it was always understood that this man was running for this post and that man was running for that post.

Justice Potter Stewart: May I ask another question?

Did they run as a trio on a ticket?

I know it's a non-partisan election, at least that's my understanding of the brief.

Mr. Rhyne: That's right, it is non-partisan election.

Justice Potter Stewart: First of all, what is the term of the commissioner?

Mr. Rhyne: Four years.

Justice Potter Stewart: And are they are all elected at the same time?

Mr. Rhyne: Yes, they are.

Justice Potter Stewart: And there -- do they run as a slate of three?

Mr. Rhyne: No.

No, there is no primary, it's a non-partisan election and there are no impediments to anybody registering, anybody qualifying to be a candidate for anyone of the places even thought they are not an expert in finance or an expert in one of the others and there is no question of what.

There is equal participation in the electoral process and that the votes are counted equally.

Justice Potter Stewart: And have Negroes been -- they have run?

Mr. Rhyne: Yes, now Negroes have run, three Negroes run in 1973.

Justice Thurgood Marshall: They run or they stood for the election?

Mr. Rhyne: Mr. Justice Marshall, I would say in this how they stood for election and you're right.

They stood for election in 1973.

But as the District Court pointed out they were young, inexperienced and run rather limited campaigns and even care of the black awards.

Now --

Justice Byron R. White: They have some prerequisites for getting on the ballot?

Mr. Rhyne: None whatever.

Justice Byron R. White: You just -- there isn't a filing fee?

I suppose some kind?

Mr. Rhyne: There was a manner --

Justice Byron R. White: But there is a signature requirement?

Justice Potter Stewart: There must be.

Mr. Rhyne: Now Mr. Arendall is here, he is a great expert trying to make an expert on me but I'm saying there isn't --

Justice Potter Stewart: There is no signature requirement of any instances?

Mr. Rhyne: No, absolutely not.

So anybody can run.

Now, this is the first case that I know of the handed for this Court that really is quarreling in laws at-large elections in the municipal level.

Justice Byron R. White: Well, Mr. Rhyne before you go on with that, you might just tell me why you thought it was important to say that these commissioners either formally or informally stood for election for certain positions.

Mr. Rhyne: Yes.

Justice Byron R. White: Now, let's just assume that they didn't, would your case be different?

Let's suppose they just run, all they run was for three commissioners and no one ever knew what they were running for except they are running for commissioners and they have the full legislative power.

It might so happen that after they were elected, one would assume this kind of executive responsibility and one would assume another.

But suppose they just run, when they run no one understood anything other that they were running for three commissioners exercising legislative power, would your case be different or not?

Mr. Rhyne: That's pretty hard question, but I would say that my case would not be different because in every commission form of Government that I know of, the people always know who that commissioner is running for and who they are voting for and then you have some larger experience and since now they were proportional representation on voting in such.

But I say coming back to my point that this is the first case before this Court involving at-large election, we have 67% of the cities --

Justice Byron R. White: Or you -- I think --

Mr. Rhyne: -- but you --

Justice Byron R. White: I take it that the case would be the same if there was at-large election for city councilman.

Mr. Rhyne: I would agree except I think here you have a special reason, because the people can better hold these commissioners responsible for their actions because they know who takes the actions.

Justice Byron R. White: So you do want us to confine our decisions or to address the --

Mr. Rhyne: Commission form of the government, yes.

Justice Byron R. White: Commission form of government where you run for a spot?

Mr. Rhyne: Yes.

Justice Potter Stewart: The city council, generally speaking as a generality has only legislative power?

Mr. Rhyne: That is right.

Justice Potter Stewart: Not executive.

Mr. Rhyne: That is right and you have a city manager, you have a Mayor who runs the overall.

Justice William J. Brennan: I want to suggest to you that the commission form of government as you described in Mobile is certainly very different from the commission of form of government as we knew it in New Jersey when my father was for 13 years a member of the city commission of New York.

And there you had as many as 80 candidates and the first five were elected and then the five of them by majority vote decided which should be director of public safety, which should be director of public affairs and so forth.

And one did not run because he was supposed to be an expert in any particular field.

Mr. Rhyne: Now, you're speaking of a county, are you not?

Justice William J. Brennan: No, I am not.

I am speaking of the City of New York.

Mr. Rhyne: Well --

Justice William J. Brennan: We have the commission form of government in New Jersey for some 25 years and most of the major cities.

Mr. Rhyne: Have the commission form, yes.

Justice William J. Brennan: Well, that takes to be back to my Government.

The rightful welcome is the mayor who made the assignment of the places.

So there are as you pointed out all variations but I join Mr. Justice White in asking whether your case would be the same without a please contest standing for a place.

Mr. Rhyne: Well, I think that on reconsideration I would stay with this thing.

I think that the election at-large is the important thing here and it is true though that there is a tremendous battle about the qualifications of the various commissioners because I too Mr. Justice Brennan grew up and my father run in, that's too long ago I don't remember how many candidate but this was county and not city in selecting this --

Chief Justice Warren E. Burger: You indicated before that the distinguishing factor perhaps was that this people exercise both legislative and the executive functions --

Mr. Rhyne: That's right.

Chief Justice Warren E. Burger: -- that differed that distinguished it from?

Mr. Rhyne: From the usual merit council form of government that is very clear.

Justice Thurgood Marshall: What about the police jury in Texas and Louisiana?

Mr. Rhyne: Now --

Justice Thurgood Marshall: The County police jury?

Mr. Rhyne: Mr. Justice --

Justice Thurgood Marshall: -- come by anyone anything did go all over the world, will that?

Mr. Rhyne: That's right and --

Justice Thurgood Marshall: The judges are laymen in Texas.

Mr. Rhyne: And the judges are laymen --

Justice Thurgood Marshall: And the jury was --

Mr. Rhyne: In Missouri where our present chairman was.

Justice Thurgood Marshall: That's right.

Mr. Rhyne: And a judge is the layman in Illinois, but let me get back to this fact.

One of the most interesting thing to me is that these plaintiffs have brought this suit, they have 35% black but never has a qualified black, run for office in Mobile.

Now if there's any one thing that this Court can judicially notice and then Mr. Justice Marshall knows better than anybody else that it's this, when I first start representing cities in 1937, there wasn't a single black that I know of on any city council and certainly no black Mayor.

Today, we have a tremendous number.

Justice William H. Rehnquist: Mr. Rhyne, how could you know whether a particular individual black or white is “qualified”?

Mr. Rhyne: Well, he has state his qualifications and the people vote for him on the basis of his qualifications.

It puts forth these qualifications in the race.

Justice William H. Rehnquist: Well, if I might be anecdotal too, I grew up in Milwaukee, we have a city council of 23 members, and 12 of them were tavern keepers.

Mr. Rhyne: Well, the City Council of Milwaukee doesn't really run the city, the mayor, there was mayor home probably then and a city manager, generally run the city.

But the thing is that, here you've got Mayor Bradley running out in Los Angeles in a city that's 17% black.

He run once, he was defeated.

He run the next time, he's been elected and then elected over and over again.

And I see around this nation and we cite them on page of 11 and 12 of our brief with many illustrations Raleigh, North Carolina, 22% black, black mayor.

Got a black mayor of Atlanta, black mayor in New Orleans, black mayor of Newark, black mayor of Oakland, I could name a hundred of them almost because I worked with them almost daily and I am saying that we've reached the point in our nation where the color of a man's skin in the political area doesn't count as much is his ability to prove that he can do the job.

Justice Thurgood Marshall: But why is it that they had win in?

Mr. Rhyne: I did not hear the question.

Justice Thurgood Marshall: Are they all stupid in Mobile?

Mr. Rhyne: Now, Mr. Justice Marshall --

Justice Thurgood Marshall: (Inaudible) because I didn't --

Mr. Rhyne: -- you probably knew John LeFlore very well.

He is one of the ablest Americans, who have live, but I'm sorry, he was plaintiff, he is dead.

Now, I would be awfully hard to convince that if John LeFlore run with 35% black that he wouldn't get enough quite votes to win and my statement to you is --

Justice Thurgood Marshall: Who's the mail carrier?

Mr. Rhyne: Pardon?

Justice Thurgood Marshall: He was a mail carrier?

Mr. Rhyne: Well, he was brilliant man.

Justice Thurgood Marshall: Well, he wasn't a politician, he's mail carrier.

Mr. Rhyne: But he is a politician and you know it.

Justice Thurgood Marshall: Yes, a part-time politician.

Mr. Rhyne: Well, --

Justice Thurgood Marshall: What you mean some of the -- you mean that those young lawyers down in Mobile.

Mr. Rhyne: He organized the only misleading organization that existed in Mobile the Non-Partisan Voters League which is back.

Chief Justice Warren E. Burger: Well, if the qualification factor is relevant here at all ---

Mr. Rhyne: I think it's very relevant --

Chief Justice Warren E. Burger: -- the only evidence of qualification is that the three Negroes, who run, you said according to this record, did not carry the Negro or doting wards and isn't that about all, we can deal with on qualifications?

Mr. Rhyne: Well, Your Honor, I think it shows the sophistication of the voters today and I think it also shows that the voters are looking at the qualifications of the candidates rather than the color of their skin or they would have gotten 35% of the votes.

Justice John Paul Stevens: The difficulty that -- in this case though, I know you're talking about the rest of the country, but this case, the district courts finding are as I remember them, that the color of the man's skin is of critical importance in the election.

Justice Thurgood Marshall: “The Kiss of Death.”

Justice John Paul Stevens: Don't we have to look at Mobile rather than Oakland and Cleveland and other place?

Mr. Rhyne: Well, I read “The Kiss of Death” Mr. Justice Marshall and I read what the judge said about polarization.

Justice John Paul Stevens: But do we accept those findings or do we not for purposes of our decision?

Mr. Rhyne: I say that the findings are based on my minefield evidence because the expert testified that polarization was lessening all the time and there were witnesses who testified that a black man would have a reason an opportunity to win.

Justice John Paul Stevens: Mr. Rhyne, do we -- do we accept those findings for purposes of our decision or do we – do you ask us to reexamine them?

Mr. Rhyne: I ask you to reexamine them because --

Justice John Paul Stevens: Is it critical to your case if we reexamine them?

Mr. Rhyne: Not particularly I think that which you have here is a legal conclusion rather than a fact because what did the court do?

In a voting rights case you've got to find some barrier, some obstacle.

Now in Mobile, you have full access, full participation by blacks.

Justice Byron R. White: Yes, bur Mr. Justice Stevens points out that the district courts as you may have complete access until the voters get into the voting booths and then there's voting on the basis of color and no black has ever been elected.

Mr. Rhyne: Well, --

Justice Byron R. White: Well, let's just assume that's so.

Mr. Rhyne: That is true.

Justice Byron R. White: Now let's just assume that that is -- just accept those findings and you say, what do you say to that?

Mr. Rhyne: I say to that, that the evidence is at polarization is growing less and less all the time and that this Court must pay some attention to the fact that blacks throughout the nation.

Justice Byron R. White: What if we accept the findings that there is a racial voting at the polls?

Justice Thurgood Marshall: Mr. Rhyne, on your polarization changes, what about the clan getting 1500 members a week in Alabama? The Ku Klux Klan, I'm talking about, you know, KKK.

Mr. Rhyne: Yes.

Justice Thurgood Marshall: 1500 members a week in Alabama in the last two months.

Mr. Rhyne: I don't follow its activities quite as close I am afraid.

Justice Thurgood Marshall: I've seen the newspaper.

Mr. Rhyne: Well, I --

Justice Thurgood Marshall: Local news.

Mr. Rhyne: I -- I would say that the Ku Klux Klan as far as I know of it is fading as a factor in the south just as polarization of the black vote is fading.

Justice Potter Stewart: I thought your argument Mr. Rhyne was that even accepting polarization nothing in either Fourteenth or Fifteenth Amendment requires that this at-large form of election which has been the form adopted Mobile since the year 1911 to be altered, even accepting that Negroes voters vote Negroes and white voters vote white people.

Mr. Rhyne: My position is --

Justice Potter Stewart: There's nothing in the Constitution the Fourteenth Amendment or the Fifteenth Amendment or any other part of it that requires Alabama to change its system of voting.

Mr. Rhyne: That is right.

I think as long as they have equal access and equal participation and their votes are counted equally, that's all the Constitution requires and they have that in Mobile.

Justice Potter Stewart: There is a one man one vote problem here under the Fourteenth Amendment --

Mr. Rhyne: Now, they are equal.

Justice Potter Stewart: And there is no deprivation of anybody's voting under the Fifteenth Amendment based on his race or color.

Mr. Rhyne: That is right because testimony is this, that the black vote is decisive.

All the candidates for commissioner campaign very hard for the black vote and on pages 141, 142, 143 you have Reverend Hope saying that he feels, he's head of the Non-Partisan Voters League.

He feels that the three white candidates or three white commissioners who now are those officers treat the blacks very well and we have over and over again the fact that these commissioners have the open door policy, they see the blacks, they try to care of their problem, sure they can take care of them all, all cities have problems but --

Justice John Paul Stevens: But then Mr. Rhyne did not the District Court find that the blacks were not getting the same services from their government but the whites were.

Isn't' that the District Court's finding?

Mr. Rhyne: Well, the finding on services, there are other remedies for that Mr. Justice Stevens.

Justice John Paul Stevens: I understand that but I am not saying you necessarily --

Mr. Rhyne: That doesn't have to do with voting.

Justice John Paul Stevens: Don't we have to deal with the findings of the District Court rather than the changing conditions that you described they are taking place today or do we, normally --

Mr. Rhyne: I think --

Justice John Paul Stevens: -- we deal with the findings the District Court made.

We got to live with them.

Mr. Rhyne: I don't think you can decide this case in a vacuum, I think you have to look at the entirety of the picture which going on in the world today.

I think that in this instance where there's no impediment in the voting process, whatever.

Everybody can register, every can run --

Justice John Paul Stevens: Do you think that the Gomillion case would have decided differently if there have been showing that there is no impediment to the voting process?

Mr. Rhyne: Well, the Gomillion case is entirely different from this.

The Gomillion case was an out-and-out discriminatory action and you got those discriminations here.

Justice John Paul Stevens: Well, suppose this -- suppose this was out and out in a sense that the legislature and the commissioner said the reason we want to maintain our plan, our commission form a government, is because we do not want blacks to be in the -- elected as commissioner, would it be a different case?

Mr. Rhyne: It could be but you don't have that here.

You don't have any intentional discrimination.

You have absolutely quality of voters to the voting process.

Justice Byron R. White: Well, based on the findings of the District Court, at some point in the process, you haven't deliberate discrimination in the voting booth.

Mr. Rhyne: Well, --

Justice Byron R. White: I'm not suggesting but I'm just --

Mr. Rhyne: Mr. Justice White there's no such finding what they --

Justice Byron R. White: Well, I'll call it polarization then.

Racial voting whatever you want to call it.

Mr. Rhyne: Well, even on that as I say that the testimony was by the expert Boyles that polarization is lessening in the Government in each brief concedes that race was not an issue in the 1973 election but it was the last election.

Now, what the court did, the District Court did was it couldn't find an obstacle.

It couldn't find an impediment and found that everybody have an unfettered right to vote.

So what it did was and I quote the court, “The court concludes that an at-large system is an effective barrier to blacks seeking public life.

Well, that simply isn't true, it simply is not true.”

Chief Justice Warren E. Burger: It does not the record here -- is not the record here that the three Negro candidates didn't carry the Negro wards in conflict to some extent with the District Court's finding.

Mr. Rhyne: Absolutely, and then the Court of Appeals want to step further and said that, that existing so that so-called barrier to blacks seeking public life establishes the element of intent.

Now, I think that this case is enormously important because having found that the system itself was the barrier all the court could do was to polish it and what did they do, they wrote an entire new city chart with a mayor and non-city councilman because they said that the only way and I quote this Court again, “you can provide blacks with the realistic opportunity to elect blacks to the city governing body is to wipe out the existing government and put in a mayor-council plan was single member district.

I don't think these courts in the business of fixing elections or guaranteeing that a person is going to be able to vote and put in office a man of his own color.

They have an equally right to an equal shot one man one vote.”

Justice Byron R. White: Mr. Rhyne, I suppose it's only -- it's just the residential pattern that would allow that would afford the kind of a remedy the District Court gave here.

If blacks and whites were equally distributed around the City of Mobile and yet the same results had occurred down in the past there weren't any blacks elected.

The only remedy would be of system of racial proportional representation, but this single member district remedy would only work because of residential patterns I take it.

Mr. Rhyne: Yes, I think the vicious part, you are right.

The vicious part of this decision is that it more or less freezes segregation.

Justice Byron R. White: You mean residential segregation?

Mr. Rhyne: Yes.

If you're going to chop up Mobile into non-single member districts and the black start moving out of the district, they lose control of it.

So I think that's really to me, we've reach the point I say when color should not count and it has not counted throughout the nation and I think this Court should say so that you're not going to provide proportional representation by race, you never had and the city and that state would say no, it would vote yes, equal access yes, equal participation yes, but not proportional representation by race.

Justice Potter Stewart: In fact the proportional representation that is the hare system of proportional representation has existed, I think only two municipalities in United States, New York City for a while and Cincinnati, Ohio for a longer period and that was attack as being unconstitutional on stage?

Mr. Rhyne: Yes and it didn't work very either place.

Justice Potter Stewart: Now, I want an argument about that.

Mr. Rhyne: Alright, but (Inaudible) he put it in and since that they told me I wasn't working really good and so you got rid of it but I am saying that proportional representation by race is not guaranteed with the country.

Justice Thurgood Marshall: (Inaudible)

Justice Potter Stewart: Yes.

Justice Thurgood Marshall: The communist got elected every time?

Mr. Rhyne: I didn't quite understand you Mr. Justice.

Justice Thurgood Marshall: In New York, the communist got elected ever time.

Justice Potter Stewart: In Cincinnati I got elected.

You know, I thought in working on this case really, one of the most interesting things was the footnote that Mr. Justice White wrote in Whitcomb versus Chavis where he pointed out that a white man won in a black ward, and a black man won a in a white ward, and I hope that I have lived to see the day where that is America because if you start carving up cities just because you got to guarantee black sits on the governing board, you're going to have to carve out in almost of this.

Argument of J. U. Blacksher

Chief Justice Warren E. Burger: Mr. Blacksher.

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

I would like to begin by responding if I may to some of the questions concerning the commission form of government in Mobile.

Briefly, the history of commission government Mobile as Mr. Justice Stewart pointed out began in 1911.

The original statute did not require but did authorized the commissioners once they were elected to divide up the executive functions among themselves and it certainly was the practice and custom in Mobile almost from the beginning for the commissioners to do this.

In fact, it is not a matter of record in this case but there was lawsuit in 1920's by some politicians who were unhappy that commission had adopted that course rather than act in this as a board of directors in common.

Justice Byron R. White: You mean that after the election they then decide which of them would take what part?

Mr. Blacksher: That's correct and in 1939, pardon my understanding, that the law was explicitly changed to provide for one place to be the mayor in advanced to the election and the two associate commissioners would be assigned to executive functions after the election.

That plan also run on some technical problems in the Alabama's state courts and it ended up in 1965 for the first time of the executive functions of the three commissioners were designated by law before they run.

We would like to point out that the plaintiffs in this case never objected to the retention of the commission form of government which permitted the use of single-member districts.

It was a position of the defendant city in this case form the time it filed it's answer through its arguments in the pretrial motions, the pretrial document, pretrial briefs and on into the Court of Appeals that the assignment of executive functions to the three commissioners foreclosed, absolutely foreclosed any remedy in this case.

That in fact was I think a key stone on their defense.

Based on that representations which can also be found by the way in their answer on page 33 of the appendix, that in order for single-member districts to be provided in Mobile, a change in a form of government will have to come about at the court acting in its equitable discussion when it was forced to enter an order of its own, when the City of Mobile and the State of Alabama refused after the Court's invitation to supply some legislative response to the infirmities of the at-large election system.

Then the court, taking the advice of the defendants themselves changed to an optional form of government which is provided in the State of Alabama by other statutes.

State of Alabama has several optional forms of municipal government including the ancient mayor-aldermanic form of government which Mobile was using back in 1900 including a new mayor council, newer mayor council form that was devised specifically for Mobile in 1963 and including a special legislation that governs Montgomery for example and Birmingham which had adopted the so-called strong mayor that everyone in this trial agreed was preferable to the weak mayor where the council could interfere in the day to day business of the executive.

But to repeat, it is true that the plaintiffs in the end when asked proposed a remedy suggested a change to a mayor council only because the defendants were urging that any other use of the form government in the context to stay along with districts would be inequitable and inappropriate in Mobile.

The court's remedy list open at the state Alabama.

The option of adopting by legislation, a commission form of government that does permit of the use of single-member districts, that is still open to Alabama if it wishes to use it, but there has been no movement on the part of anyone in the legislature or in city government to seek or to bring about such change.

Chief Justice Warren E. Burger: Could the city do a general utterly or does it take for state legislative action?

Mr. Blacksher: The city took the position from the beginning that it locked, entirely locked any authority to change it's election system or it's form of government and that in fact we had to look to the legislature of Alabama for our remedy.

And it -- it filed the motion to strike our prayer for relief that the election system be changed to single-member districts because they lack the authority to provide that relief.

Justice Byron R. White: Well, is it your position that the discrimination in this case was effected in the voting booths, is that where the --

Mr. Blacksher: Not exactly Mr. Justice White.

We do not take position that voters are somehow practicing that prohibited -- constitutional prohibited form of discrimination when they vote long racial aims.

What our position is that given that situation, a situation by the way which has been reinforced by a hundred years of official state access --

Justice Byron R. White: Our city should not provide the kind of a system that makes effective that kind of voting, is that it?

Mr. Blacksher: That's absolutely correct.

In -- in Mobile, I doubt that one could devise an electoral form that more carefully and distinctly focused the electoral power of --

Justice Byron R. White: When you say at-large -- at-large voting is just in the cities say is out is unconstitutional if over a period of time a substantial black or some other minority group is without representation and that the court finds that there is discriminatory voting?

Mr. Blacksher: Polarized voting, we do not even say that every at-large system under those circumstances would have the proscribed effect.

After all, if someone here pointed out there were in a true at-large system and a true at-large system as in this case that the top three vote getters would be elected and you can have a plurality victories and it made then that under such a system blacks in Mobile representing 33% of the population would have had the clout to do it.

Justice Byron R. White: What would you do in this case, if the blacks and the whites have been equally distributed throughout the city rather than what would have been your remedy?

Mr. Blacksher: We -- you -- Mr. Justice White you are correct that we would have had no remedy through the districting formula and in the first instance we think that it's unrealistic to consider such a possibility sense if in fact blacks and whites were residentially homogenized throughout the entire district, it is unlikely that the social phenomenon of polarized racial voting would have occurred in the first instance.

But if it did occur in that circumstance I think it is clear that the election form at-large voting would not be the specific cause of the delusion of their vote because as you say changing --

Chief Justice Warren E. Burger: Excuse me.

Go ahead.

Mr. Blacksher: Changing the districts would not provide them such a remedy that the issue of course is not presented here, the evidence was and the court found that Mobile one of the most racially segregated cities in the country.

Chief Justice Warren E. Burger: What inferences should be drawn if any, from the fact that if you had district representation here the three Negro candidates run would not have been elected in their own predominantly Negro Districts?

Mr. Blacksher: Yes, sir.

That was a factual issue that was debated a great length in the trial court and all of the facts indicated in the trial court found, and the Court of Appeals affirmed its 90 that it was only one -- it was an indication that no well-known, well-financed black candidate was even going to attempt a race in the City of Mobile where all of the politicians including the defendants conceded that it took $30 to $50,000.00 towards a successful campaign.

When all of the black politicians including the floors, non-partisan voters list represented to the court that they would not even attempt to launch a black candidate given the pattern of racially polarized voting.

This was a situation where the one champion of black's interest in the City of Mobile, a white commissioner name Joe Wagon had been defeated by that same racially polarized voting.

His situation provided the centerpiece, I think of the evidence in this case and blacks in this case did not contend that they had a right to have a districting remedy that will permit them elect blacks.

They wished to elect a candidate of their choice.

They weren't -- their evidence indicated that they were not even permitted by the way of majority to elect a white candidate who was at all connected with or interested in their concern.

Justice Thurgood Marshall: How was it prevented in doing this?

Mr. Blacksher: I beg your pardon, Mr. Justice Marshall?

Justice Thurgood Marshall: You said that Negroes weren't allowed to elect the man of their own choice and my question was how were they denied that right?

Mr. Blacksher: They would denied that right by the block voting white majority operating in an at-large election system that involved the majority vote requirement.

Justice Thurgood Marshall: What I understand from Mr. Rhyne that, maybe you can help him, he wants to know the constitutional division that prevents white people for voting for white people and Negro or black people from voting for black people.

Mr. Blacksher: There is no such constitutional prohibition, if it please the Court.

Justice Thurgood Marshall: I thought so.

You agree with doing that?

Mr. Blacksher: We certainly do.

Always have.

Justice William H. Rehnquist: But you do say that given the fact of polarization as it's been referred to generally in the case, it does not require a finding of intent in the structuring of the governmental unit to discriminate?

Mr. Blacksher: That is the position we take.

The Court of Appeals took the position that under the equal protection cause of action such a find of intent was required at least the majority opinion did and although it did sort of indicate that the intent would not be required under a Fifteenth -- well, I'm sorry, the majority did hold as well that the Fifteenth Amendment would require a showing of intent.

But it is our position, Mr. Justice Rehnquist, that neither the Fourteenth Amendment, the Fifteenth Amendment, and certainly not the Voting Rights Act requires that a districting system which operates to minimize or cancel out the voting strengths of a protected minority requires a demonstration that that electoral system was motivated in the first instance or at any point in time by an invidious motive.

Justice Potter Stewart: How about the election for the governor of Alabama?

Mr. Blacksher: Your Honor, the governor of Alabama is an executive function, it is one office.

He must run statewide.

Justice Potter Stewart: All the executive power of the government of Mobile at-large in these three commissioners, I understand.

Mr. Blacksher: That's correct.

Justice Potter Stewart: So in that extent, there's no difference.

Mr. Blacksher: That's correct except that what we don't foreclose is the possibility that a commission system could have been retained where all three would have elected, would have exercise the executive power and still have been elected from single member districts and without validating the voting rights under the Equal Protection Clause of any of the citizens in Mobile who elected them from single-member districts.

We say that that certainly is an option which is used in other the cities, has not been challenged.

It was not directly challenged in this case.

Justice Potter Stewart: Do you think the Constitution, ultimately what you're saying as I understand it is that the Constitution requires that one of these three commissioners be a Negro.

Mr. Blacksher: No, Mr. Justice Stewart, we're not.

Justice Potter Stewart: Well, that's the thrust of your argument, isn't it?

Mr. Blacksher: It is, we have seen that the Constitution requires that in a situation where there is block voting is powerful and it's rigid as there is in Mobile, the Constitution requires that an electoral system be provided which gives blacks an opportunity to have their preferences registered in the election system.

Justice Potter Stewart: Well, --

Mr. Blacksher: And their preference may or may not be a black candidate.

Justice Potter Stewart: The voter is still not always, in many time, I am sure you've shared this experience was many of the others who are fellow citizens, your preferences hasn't been nominated by either party or any party.

Mr. Blacksher: That's correct.

Justice Potter Stewart: So you're voting as between not first choices of yours?

Mr. Blacksher: Not yet, every voter doesn't have a right of course to have his preference registered on every occasion, but the concept of delusion grew out of this Court's one person, one vote, one occasion.

Justice Potter Stewart: Yet that's not involved here, is it?

Mr. Blacksher: The mathematical concept of one person at one vote is not.

Justice Potter Stewart: Which is not that concept was in Reynolds against Sims?

Mr. Blacksher: That is -- that is not with Fortson versus Dorsey --

Justice Potter Stewart: I know but the original one person, one vote was a purely a mathematical concept wasn't it?

Mr. Blacksher: The specific concept in Reynolds was a mathematical concept.

Justice Potter Stewart: Exclusively?

Mr. Blacksher: But the language of Reynolds is much broader than that, may it please the Court.

And it talks about the right of every American citizen to have a full undiluted, equally weighted vote and from the beginning of that line cases, this Court has recognized.

Justice Potter Stewart: But now -- just go ahead, excuse me.

Mr. Blacksher: Has recognized then in laying down the rule that such a delusion or debasement of a person's vote could occur by a geographical apportionment scheme by mathematics as you say.

Then in providing a remedy for that, a local government could go to an at-large election scheme.

Justice William H. Rehnquist: Well before you get to the question of remedy let's talk about the constitutional violation.

Do -- you said that it does not have to be by intent, I take it.

Mr. Blacksher: That is our position.

Justice William H. Rehnquist: Now supposing that instead -- Mobile and instead of being roughly 65-35 was 85-15 and they had head a longstanding three commissioners at-large system and could the District Court then tell them they had to go from three commissioners to five commissioners because even three commissioners split up geographically would not enable the Negro population to have a representative on the council?

Mr. Blacksher: If the system operated given all of the premises of the hypothetical question that there was rigid polarized voting which strictly precluded on every occasion consistently over a period of time the preferences of the 15% black minority from being registered in the at-large system then it would be functionally no different than a districting system in which blacks were in one district that had no representatives and the whites were in one district that had all of the representatives.

That's our position.

Justice Byron R. White: That will make the same argument about Catholics or Jews or any other identifiable group that live in some area, I suppose, Italians, Poles, and (Inaudible).

Mr. Blacksher: We don't attempt to make that argument here Mr. Justice White but the argument might be --

Justice Byron R. White: Well, it sounds to me like you're making it.

Mr. Blacksher: The argument might be made under the presence this Court has established if it could be shown by Catholics and I would point out that in our experience it has not been as a matter of fact to possible to show this that Catholics consistently voted as a black that or rather that the majority of non-Catholics voted as a black to defeat Catholic candidates over a period of time.

Justice Byron R. White: That's a factual answer to my question.

That isn't what I asked you.

Mr. Blacksher: Well, whether or not to the case applies to the Catholics or Poles or other groups is a questions was simply or course requires additional consideration of other factors but there could be no doubt the Fourteenth and the Fifteenth Amendment was passed primarily to protect the voting rights of blacks.

Justice Thurgood Marshall: The fifteenth says.

Justice Potter Stewart: Says so.

Justice Thurgood Marshall: The Fifteenth Amendment is explicit on that point.

Chief Justice Warren E. Burger: Let me come back to what I suggested to you before about the fact that three Negroes candidates couldn't even carry their own districts and you responded by saying that the -- at least as I understood it, that the Negro leaders in the community knew that it was a futility to run and so they didn't bother putting up good candidates but that's a good deal of speculation, that's really not hard evidence.

Your -- your whole arguments about block voting, block voting are undermined by this reality that is in the record that the Negroes did not vote for Negro candidates.

Mr. Blacksher: Mr. Chief Justice there was plenty of evidence in the record where blacks had run in the City of Mobile for other government such as the school board, the legislature had attempted time and again to seek election and have been defeated by a solid black vote by the majority of whites.

As well as other white candidates both in the City Commission elections and in school board elections.

Justice Byron R. White: Who has the case of controversy versus with whom here?

Mr. Blacksher: The case or controversy is between the plaintiff class of black citizens of Mobile and the State of Alabama operating through its agency, the State of Mobile.

Justice Byron R. White: What case or controversy does a name -- do the named plaintiffs have with the City of Mobile?

Mr. Blacksher: The case in controversy involves the law from this in the constitutionality --

Justice Byron R. White: Have they ever run everyone in the world?

Mr. Blacksher: The evidence was that they have frequently run in the past, have expressed the desire to run in the future.

Justice Byron R. White: These named plaintiffs?

Mr. Blacksher: John Leflore for one, run for the state legislature as soon as the Federal Court in Montgomery provided single-member districts that provided him a reasonable opportunity to be elected.

May it please the Court I would like to pint out that contrary to Mr. Rhyne's opening statement that this case is strictly an equally protection case, that there are at least four independent legal theories supporting a judgment below.

The Court is confronted with the findings effect the two courts below that Mobile are at-large election system has not only the effect but the purpose, the motive of discriminating against black voters.

Based on these findings, this Court can affirm the judgments below first on the voting rights Act of 1965 which explicitly prohibits any election laws which have the purpose or effect of abridging blacks voting rights.

Secondly, on the Fourteenth Amendment cause of action drawing out of White versus Regester, Whitcomb versus Chavis, and I would like to point out to this Court's stop in their monetarily that the evidence in this case is even stronger and all the critical aspects than was the evidence in White versus Regester.

Thirdly, the constitutional prohibition against any state law that is supported by a racial -- invidious racial motive; and fourth, the Fifteenth Amendment which provides and proscribes any state law which has either the purpose or effect of abridging the voting rights of the blacks.

I think that --

Justice John Paul Stevens: Mr. Blacksher, supposing in Chicago, the City Council decided they didn't want anymore Republicans and they passed an at-large system there which would effectively exclude the republicans from the City Council.

I suppose the Republicans or group are entitled to equal protection, under your theory would that be unconstitutional?

Mr. Blacksher: Your Honor, we simply don't take a position on whether or not Republicans are protected.

I am thinking about that question.

It certainly occurs to me first of all that the political parties are vehicles that we have in this society adopted as a convenient means of carrying on the political dialogue itself.

Justice John Paul Stevens: The significant thing about them I suppose is they vote as blocks.

Mr. Blacksher: They voted as blocks, that is correct but the question is whether they -- whether the vote against them is invidious in nature.

Justice John Paul Stevens: Well that's because we don't want these members of this black in our legislature, does that make it invidious?

Mr. Blacksher: No, sir, certainty not on its face.

Justice John Paul Stevens: But then are you saying that a political party that frankly, a political party like the Republicans are not entitled to the -- or they can be subjected to discrimination simply because they are Republicans?

Mr. Blacksher: I'm saying -- I'm trying to avoid taking a position one way of the other simply because it involves clearly different kind of issues which requires thorough exploration.

Justice John Paul Stevens: Would this case be different if all the black citizens in Mobile organize a political party to have the Black Political Action Group or something like that?

Mr. Blacksher: It would be different if it showed that the block voting was on the basis of the ideals and the positions, ideologies espoused by this particular organization which cross the racial lines.

The Constitution forbids invidious discrimination on the basis of race.

The Voting Rights Act forbids invidious discrimination on the basis of race.

Justice Thurgood Marshall: What is a block voting for that on race?

Mr. Blacksher: With respect to the constitutional rights of citizens of this country to vote in a block fashion of course.

The question is whether the state can reinforce and guarantee the defeat of the minority through a particular election form which is what they have done in this case.

Justice Thurgood Marshall: All you take and you don't read Mr. Rhyne anymore?

Mr. Blacksher: I don't -- there's been very little that we've agreed upon it in the course of this litigation Mr. Justice Marshall.

I -- I would like to close by pointing out that after the White and Whitcomb cases and the Voting Rights Act may have been analyzed to death that the issue from my client standpoint very simply is whether or not they will be permitted to enter at last the mainstream of politics in the City of Mobile?

If this Court stands by it's prior precedents and White and Whitcomb, if it observes the congressional intent behind the Voting Rights Act, if it observes precedent it established in Gomillion versus Lightfoot and Arlington Heights regarding a racially motivated state law, then given the findings of fact made by two concurrent courts below the judgments below must be affirmed.

Justice William H. Rehnquist: Well, do you have that finding by the District Court, look at page 32 (b) of the jurisdictional statement.

I thought that Judge Pittman came right after the hurdle and then kind of backed off saying that Washington against Davis had not change the delusion cases and it was and no intent does require there so it didn't find it?

See the top of page 32 (b) there.

Mr. Blacksher: What the -- the argument, I think it's important to note Mr. Justice Rehnquist that the argument that the Court is rejecting here is the argument that the defendant City depended upon throughout trial and that is that plaintiffs had to show intent in the origination, in the enactment of the statute.

You'll notice that court says that Washington versus Davis did not establish a new Supreme Court purpose test that requires initial discriminatory intent.

The preceding paragraph contains the finding that there is a current condition of the delusion of the black vote resulting from intentional state legislative in action.

Now we fought for the lower courts both the District Court and the Court of Appeals this argument that if we couldn't prove that in 1911, there was racial motive involved then we we're out of court and that issue that District Court was addressing in that passage.

Argument of James P. Turner

Chief Justice Warren E. Burger: Mr. Turner.

We'll resume at 1 o'clock at this point.

We'll you be continuing or will you be reserving any time you have left or Mr. Turner, I guess it would appear that you're on deck.

He's got two minutes.

Mr. Turner.

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

We appear as amicus to urge the court to affirm the judgments below in both numbers 77-1844 and 78-357 which will be argued next.

Although there are slight differences in the legal analyses which are apparent, I believe, from the briefs we concur fully with the appellees that the maintenance of the at-large voting system for Mobile City Commission and School Commission in all circumstances of these cases violates the Equal Protection Clause and alternatively and independently the Fifteenth Amendment.

In the Fourteenth Amendment, the Equal Protection Clause, our analysis like that of the Court of Appeals accepts the fact that Washington versus Davis requires aggrieved parties to make a prima facie showing that the challenged system is purposefully discriminatory.

Our submission is that the exhaustive records in these cases demonstrates such purposeful discrimination that the careful factual findings made by the District Court and thoroughly reviewed by the Court of Appeals should be given great difference and that the at-large election system cannot be sustained in the circumstances because it impairs if not submerges meaningful access to the political process on the basis of race.

The starting point of our analysis is White versus Regester and its antecedents Whitcomb versus Chavis.

Our reading of White is that the ultimate inquiry is whether black citizens of Mobile City and County had been excluded from meaningful access to the political process because of their ways.

In White versus Regester with all the Justices joining us to this point, the Court reiterated several factors alluded to in Whitcomb and in judging whether the at-large scheme at issue has been purposefully operated and maintained.

It is our view reference to these factors set forth in White versus Regester supplies the purpose evidence that Washington versus Davis requires.

Justice Potter Stewart: How many municipalities in the country, if you know, approximately have at-large systems of voting for their municipal government?

Mr. Turner: I don't know Mr. Justice Stewart.

Justice Potter Stewart: Most of them do, don't they?

Mr. Turner: I -- I believe it to be a substantial number.

Justice Potter Stewart: A majority?

Mr. Turner: I don't know on that.

The factual inquiry suggested in White against Regester --

Chief Justice Warren E. Burger: Well then, before you go into that.

Mr. Turner: Sir.

Yes, sir.

Chief Justice Warren E. Burger: It -- it's more likely than not, isn't it that where the function is legislative and executive, that is to have to commissioners or councilmen assigned to be the chief executive of a particular department that that's very, very large number of municipal governments today, is it?

Mr. Turner: I think only in minority have what would be comparable to Mobile's commission system.

Most of those in the -- that have that commission system were legislative and executive functions are combined into one body, most of those are elected at-large however there is a small number of those that are elected from districts and then assigned after election as Mobile's former practice was to particular executive responsibilities.

And the first criteria then, under White versus Regester is that there be a present disparate effect.

The at-large system in these cases has produced no black elected officials certainly no one contains that this is the end of the inquiry but it is the beginning.

The exclusion of one-third of all Mobile residents from representation in public office is consistent with the discriminatory purpose.

The second, White versus Regester category of the factual inquiry is a history of racial discrimination in the jurisdiction of such a nature I would take it form Washington v. Davis that it suggest purposeful action.

This record documents the history of opposition to effective black exercise of the franchise that is both long and strong and we've set out as much as we could in our brief some details of that history.

The highlights include that right up until the time of trial; a single Mobile state senator had vetoed consideration of single-member districts for the city.

Another highlight is that the state legislature, which would have to approve any changes in local government such as this was singularly and responsive.

In 1970 for example when all other barriers in Alabama --

Justice Thurgood Marshall: There are Negroes in the state legislate.

Mr. Turner: There are now.

Yes, sir.

Justice Thurgood Marshall: They have been there.

Mr. Turner: And they haven't --

Justice Thurgood Marshall: Fred Gray has been there at least a dozen year.

Mr. Turner: Yes, sir but I believe he was among the first and we're talking about a history of much longer than Mr. Gray's incumbency.

Justice William H. Rehnquist: Mr. Turner does the Government think that the Fifth Circuit's opinion and Zimmer against McKeithen remains a good law?

Mr. Turner: Our appraisal of the Zimmer case would run something like this.

I'm not sure that everyone one of those factors has to be shown in a delusion case, however they do, and Zimmer set forth the kind of intense scrutiny that you have to undergo in delusion case.

We think that White versus Regester and the three general criteria that I'm going through is a much more workable and useful approach.

Justice William H. Rehnquist: Of course, workableness and usefulness aren't usually thought of as being necessarily constitutional factors.

If you say something as more workable and more useful, does that mean you don't think Zimmer is any longer good law?

Mr. Turner: To the extent that it is inconsistent and I think that it is in places with the White versus Regester criteria that I'm going through it would not in my judgment be good law.

The -- as late as 1970 in the Alabama legislature after all barriers to block voting in Alabama had been dealt with by federal court orders, there was one that remained and that was the use of multi-member districts and then the Alabama District Court in Saints versus Amos finally had to adopt single-member districts for the Alabama legislature.

And that's about the time that Mr. Gray and some of his associates became representatives.

The third, White versus Regester criteria is the unresponsiveness of the elected officials to minority constituents.

The question here, I take it is what officials do after election and not what they promised at campaign time.

Again, the details set forth in our brief show a pervasive lack of response to or interest in issues of concern to black Mobilians.

No matter which level of elected officials you study, there is apparent evidence of unresponsiveness.

Justice Potter Stewart: Of course, the White and Whitcomb cases involved legislative apportionment or reapportionment?

Mr. Turner: Yes, sir.

Justice Potter Stewart: i.e. that it involved in context of representative democracy and in the legislative area and at least arguably this system is more like a statewide election of governor, quite a different context, at least arguably.

I mean, it's not all that clear that the concepts of the White and Whitcomb case are freely translatable into this situation.

Mr. Turner: Well, I can certainly agree with you as to the city case that does have the additional element of the executive branch election and one would have to make that translation with respect to the School Board case and I realize you haven't heard argument on the facts yet.

But you'll see there that it is pretty much a garden variety case.

Justice Potter Stewart: More like a Hadley?

Mr. Turner: Yes, sir.

Justice Potter Stewart: Which of course --

Mr. Turner: If this -- that the school board have the standard power --

Justice Potter Stewart: Except for the White against Regester, Whitcomb against Chavis are cases have dealt with the one man, one person, one vote concept which hasn't no basis on the attack here, isn't it?

Mr. Turner: That's -- that's correct Mr. Justice.

Chief Justice Warren E. Burger: Would you think anyone would have a complaint pursuant to Mr. Justice Stewart's point more fully with this hypothetical?

The governor, the lieutenant governor, the attorney general being regarded as three of the most important positions in the state government surely, all the elected at-large as they are I suppose everywhere where they are elected, doesn't it produce the same impact in the statewide situation?

Mr. Turner: Well, I've -- I would argue not Mr. Chief Justice the --

Chief Justice Warren E. Burger: Why not?

Mr. Turner: The commission form --

Chief Justice Warren E. Burger: Suppose the southern third of the state is all people with Spanish surnames and one of the first or second generation Mexican-Americans, they aren't going to on theory, they have been advanced here as they, they aren't going to have much chance of electing a governor, lieutenant governor or an attorney general?

Mr. Turner: That's correct if they were block voting on the basis of race.

But again here there is a legislative element to these positions.

Local government is historically at least --

Chief Justice Warren E. Burger: Of course, the governor has --

Mr. Turner: Representative government.

Chief Justice Warren E. Burger: -- when he can veto a bill that gives him.

Mr. Turner: Well, that's right I guess we could divide the president up into five or six different offices if we follow that to its logical extreme.

But I think we need not do that here, we conclude in short that all of the factors mentioned in White versus Regester had been satisfied by the findings below and affirmed by the Court of appeals, we urge you to give great difference to them and turn to the Fifteenth Amendment.

If our conclusion is right, that's the at-large system is Mobile has given White voters the means to abolish or abridge the effective black electoral participation because of race, it necessarily follows that violates the Fifteenth Amendment.

But a second part of our submission here is that independently, the Fifteenth Amendment provides a basis for affirming the judgments below.

Now, we get that as White primary cases, we say that in the Terry versus Adams, the Jade Bird Club was a discriminatory private organization but because the state magnified that discrimination and made it meaningful in elections that this Court turned it down and said that that violated the Fifteenth Amendment.

In many ways, the Fifteenth Amendment is a much cleaner and more direct way of dealing with this question.

Justice Thurgood Marshall: I don't think you find a single word in any of those White primary cases that apply to the city.

I have serious doubt, it were limited to United States Senators, am I right?

Mr. Turner: I believe the Terry versus Adams was a county political organization that endorsed --

Justice Thurgood Marshall: What --

Mr. Turner: -- that endorsed --

Justice Thurgood Marshall: -- the election complained about was in national election, wasn't it?

Mr. Turner: My recollection is that they endorsed the candidates regularly in the Jade Bird Club, which was an all white club.

Justice Thurgood Marshall: That's right but in elections --

Mr. Turner: For local elections.

Justice Thurgood Marshall: And the United States Senate wasn't involved?

Mr. Turner: I'm sure if you say it was Mr. Justice you have more experience than I, but the case will speak to itself.

Justice Byron R. White: General Turner, are you drawing distinction between the two cases that are before us, the one involved in commissioners and the one involved in the school board?

Mr. Turner: No, sir.

I think the same constitutional principles apply.

There is the distinction that Mr. Justice Stewart pointed out which I acknowledged but do not accept this having constitutional significance.

This is a classical, in my judgment equity case.

The record shows and I urge you to read the record because it's very revealing that in all forms of political activity in Mobile, Mobile City, Mobile County, Mobile County Commission, race has never very far from the surface.

White voters the majority set aside under this record all other considerations when race is injected either in the form of the candidate or his or hers supporters.

Not only are blacks unable to win, the whites they support yet the kiss of death and the only way blacks have political influence is to bargain it away, and I think the Fifteenth and the Fourteenth Amendment guarantee them more than that kind of closet courtship.

Justice Potter Stewart: You haven't mentioned the Voting Rights Act as your predecessor council did.

Do you think that's involved here at all, Vote Rights Act of 1965?

Mr. Turner: In the Section 2 of the 1965 Voting Rights Act in terms very much likely Fifteenth Amendment prescribes discrimination and voting on the basis of race.

Our original perception was that while certainly Section 2 would be violated if the Fifteenth Amendment was violated that you don't save much constitutional energy by addressing the Section 2.

Appellees will argue you that that's incorrect and certainly, if they're right, you certainly will take a careful look at whether Section 2 is broader and gives more remedies than the Fifteenth Amendment.

Justice Potter Stewart: Was this 1965 legislative change, which formalized the specialization among the commissioners submitted to the Attorney General under the Voting Rights Act?

Mr. Turner: It was Mr. Justice and we entered an objection to that and it cannot legally at this time be implemented.

Justice Potter Stewart: Why, what happened?

I mean you ought to get an objection to it.

Wouldn't that made it invalid, didn't it and --

Mr. Turner: That's right.

All the proposed change was in Act 823 was to make formal the practice which Mr. Rhyne has described to you and the other counsel spoke about.

Because of our belief and our determination under the Voting Rights Act that this would lock in the commission system and the at-large voting that went with it.

We could not be persuaded that the burden of proof had been carried by the submitting authority who entered an objection.

Justice Potter Stewart: So the Attorney General had an objection which invalidated or at least suspended the operation of that legislation didn't it?

Mr. Turner: In contemplation of law, yes Mobile does not have specialized commissioners who run for special --

Justice Potter Stewart: De jure?

Mr. Turner: De jure offices.

Yes, sir.

Justice Potter Stewart: I see.

Chief Justice Warren E. Burger: Mr. Turner do you agree with one of the earlier observations that if the residential pattern of Mobile was totally integrated.

Totally integrated there would be a delusion of the voting strengths that's being argued for here today of Negroes.

Mr. Turner: That I agree with the answer that was given that that circumstances is so likely to be remote or so unlikely to exist that it's hard to frame an answer.

The --

Chief Justice Warren E. Burger: That's the objective.

That's certainly the objective is it not to produce that kind of city and --

Mr. Turner: Oh, that would be greatly welcome.

Chief Justice Warren E. Burger: Well then, doesn't the contrary, isn't that the corollary that the result you're arguing for would encourage the maintenance of ghettos in order to maintain voting strength.

Mr. Turner: It - it's really an academic question Mr. Chief Justice.

In Mobile, the District Court found according from a defendant's stud -- that one in the universities, that Mobile was so residentially segregated that they couldn't divide it into three districts without one of them being majority black.

I mean, it's that kind of intensive neighborhood discrimination that we're talking about and that's why it's so awkward for me to try to answer a question possibly on the grounds of everything is salt and pepper.

It -- it isn't in this case.

Justice Potter Stewart: And your predecessor answered as I understood him to be a fact that if there were in fact complete dispersal, racial dispersal and all the geographic areas in the city it would be highly unlikely that there would block voting.

Mr. Turner: That's correct.

Justice Potter Stewart: If the two go together, didn't they?

Mr. Turner: I would associate myself with that response.

Thank you.

Rebuttal of Charles S. Rhyne

Chief Justice Warren E. Burger: Mr. Rhyne, you have two minutes left.

Mr. Rhyne: Yes, Mr. Chief Justice I wasn't sure that I had any minutes left but let me answer one question for Mr. Justice Stewart.

According to the Municipal Year Book and I guess it's fairly accurate 67% of all the cities are -- have elections apart.

Now, the Government here and its brief, says the measure of the effect of an electoral system is not proportional representation but fair representation and I say to this Court that as they review the record in this case, they're going to find that blacks have been fairly represented in Mobile.

We quote on pages 10, and I guess 9 and 20, Reverend Hope who had some Non-Partisan Voters League and he says that the current commissioners fairly represent the blacks in Mobile.

And for 16 years, there was a commissioner, Mr. Langan who was noted for the fact that he represented the blacks.

So I don't think that the blacks were indeed their support the kiss of death.

He was there an awful long time.

Now in conclusion, I believe very strongly in the right to vote, on an equal vote and I believe that that's what Mobile provides here.

It provides equal access to the voting system, equal participation in that system and an equal count of those votes.

I think that's all the Constitution requires and polarization is the only thing that they've offered here to prove invidious discrimination, and I don't think that's enough.

Argument of William H. Allen

Chief Justice Warren E. Burger: Mr. Allen.

Mr. Allen: Thank you, Your Honor.

Mr. Chief Justice, may it please the Court.

My part of these proceedings concerns the constitutionality of the way Mobile County's School Commissioners are elected and since no later than 1836, these commissioners, the members of the Mobile County School Board, if you will, had been elected by the voters of the county at-large.

There were so elected when this action was brought by black residents of the county complaining that this at-large electoral system unconstitutionally diluted their voting power.

As you have heard, blacks make up about a third of the population of Mobile County slightly greater proportion of the population the city itself that is around the third the entire county.

The District Court sustained the plaintiffs' complaint and the Court of Appeals summarily affirmed.

The issue that is posed by that decision is whether an at-large method of election in a school district that has a significant black minority is unconstitutional merely because there is racially polarized voting and black minority candidates have not been elected to the Board however deeply rooted the at- large method of election may be in history and non-racial policy.

I hope in describing the proceedings and the decisions below to demonstrate that the case poses the issue just that boldly.

Then I will try to explain why the resolution of that issue by the district and the court of appeals is inconsistent with Fourteenth and Fifteenth Amendments and with this Court's decisions construing them.

But first, the facts and how they give rise to the issue I've stated.

The longstanding commitment of Alabama to the at-large election of the members of the governing body of the Mobile County Schools is undoubted.

The Pub -- the Mobile Public School system was established in 1826, 28 years before a statewide system of schools and public school was established in Alabama.

Either that original enabling Act in 1826 that seems to be ambiguous or if not that then a replacement stature, there was an Act in 1836, established a system of at-large election that has prevailed continuously since.

As Your Honors, had may have learned from the perusal of the briefs, the statute that provided for single-member districts was an enacted in 1975 but was voided because of a technical defect in the giving of notice.

The original provision for the at-large election of Mobile County School Commissioners in the early 1800's and the enactment in 1919 of the at-large election legislation that governs today were not motivated by any consideration of the impact that at-large voting might have on black residents.

Justice Potter Stewart: I suppose that the time of, that would be 1836 or later, only white people voted, only white people were elected to the school board, and only white students went to the schools.

Mr. Allen: And no one thought of the possibility that blacks might vote at that time in 1836.

In 1919, when the present enabling statue was enacted, blacks have been effectively disenfranchised in Alabama by the Constitution of 1901, a situation that prevailed until about the time of the Second World War and shortly thereafter.

Now, there's another key fact that appears from the record.

Notwithstanding, the history of which we're all aware and to which government counsel referred, of racial discrimination in many, many aspects of the life of Alabama, there are today no formal or informal barriers to full participation by black residents in the political process in Mobile County including in particular school board elections.

Blacks are able freely to register and to vote, they participate in both parties in the partisan process that leads to the election of school board members.

Any candidate who's interested in running for the school board may do so, and it doesn't cost much to run for the school board.

Justice Potter Stewart: Is there any controversy in this case about what you've told us?

Mr. Allen: Up to this point, I am paraphrasing findings of the District Court.

I am paraphrasing findings.

He did not advert to this other possible obstacle but campaign cost, but in fact there is testimony that cost them no more than $5,000.00 more usually about $2,000.00 to mount a perfectly effectively campaign in the office.

Justice Potter Stewart: They're non-paid jobs.

Mr. Allen: They're non-paid job tab them up to very recently.

Chief Justice Warren E. Burger: And these members performed no executive functions at all?

Mr. Allen: Well, I've -- I've --

Chief Justice Warren E. Burger: Did he?

Mr. Allen: -- the -- the school board is like any other traditional American School Board, it sets policy and it hires the executive in higher school superintendent.

He's not elected separately, so that executive responsibility ultimately is lodged in the school board members and I take it and this is highly personal knowledge just from acquaintanceship with neighbors that school board members are held very closely accountable for what goes on in schools by the, by parents and others who are interested.

Justice Potter Stewart: Does the Board have any independent taxing power?

Mr. Allen: That I do not know.

No, the answer to that is no.

Justice Potter Stewart: Some states they do some don't.

Mr. Allen: And that's correct, yes.

Yes, no this Board apparently is.

Justice Potter Stewart: So what are the functions of the members of the school board?

Mr. Allen: To set and make policy about the schools, to design on school construction.

To hire the superintended certainly and ultimately I would guess to decide on hirings, if it's a typical school board.

Justice Potter Stewart: Well that's not my question.

Does it select textbooks and those things or is that done at the state level?

Mr. Allen: It does select textbooks.

Justice Potter Stewart: So then does it, I suppose it promulgates rules and regulations but except in that sense doesn't have legislative power?

Mr. Allen: Legislative power I'm not quite sure what that quite means in this contest but it does whatever policy is to be made it makes, if that is what legislation is.

Justice Potter Stewart: But finally a policy making and administrative sort of body?

Mr. Allen: Yes and it combines the two functions I think it's fair, I'm sorry that I'm afraid this was all taken much for granted and doesn't appear on the record --

Justice Potter Stewart: Yes.

Mr. Allen: I -- I apologize but --

Justice Potter Stewart: They may not be important to me.

Mr. Allen: That is approximately the situation.

Let me go on.

In Addition, another fact that appears there's no white-oriented slating organization operating in Mobile County.

Mobile County, the school election, I should emphasize are different from the city elections and that they are partisan but the fact is that the only effective political endorsing organization is the Non-Partisan Voters League which is a predominantly black organization.

Justice Potter Stewart: The partisan in this -- they republican are democrat --

Mr. Allen: Yes.

Justice Potter Stewart: -- or are they partisan --

Mr. Allen: No.

Justice Potter Stewart: -- some local?

Mr. Allen: They are partisan in republican-democrat, which I think, has traditionally meant democrat.

The primary and the run-off primary election are the decisive elections or that appears.

Justice Potter Stewart: Yet, the municipal elections of district are non-partisan.

Mr. Allen: They are non-partisan.

They are non-partisan.

Now as I've indicated, what I've recited heretofore are findings that made by Judge Pittman and accepted by the Court of Appeals.

Judge Pittman also found that there was racially polarized voting in Mobile County and he said further that this tendency to vote according to race made it difficult for a black person, a member of this minority to be elected to the school board in at-large election.

In fact, four black candidates run for the school board between 1962 and 1974.

Each of them was running for office for the first time, each of them reached the run-off, none was elected.

Judge Pittman looked at these facts in the course of an analysis of the case that he felt himself compelled to follow because of the Court of Appeal's decisions in Zimmer against McKeithen and other cases that have followed Zimmer which have made the Zimmer factors decisive in Fifth Circuit voting delusion cases.

You can't really understand what happened below not knowing something about these Zimmer factors.

And the first Zimmer factor that Judge Pittman analyzed relates to minority access to the slating or candidate selection process.

He made a finding, nominally a finding that blacks were denied equal access to the slating or candidate selection process I quote in there.

But this finding was obviously a mere function of his view that potential black candidates were discouraged from running because of the history of losing elections.

And the candidates lost those elections because they were members of a racial minority in a community in which there was racially polarized voting.

I submit that in truth that it is to saying nothing more than that racially polarized voting has prevailed in Mobile County.

That is all that that lack of access, conclusion.

I will not dignify it by calling it a finding of the District Court amounts to.

Justice Potter Stewart: Formally, it's the slating as the sort of a nomination --

Mr. Allen: Nomina -- for that -- for the --

Justice Potter Stewart: -- an group of candidates and whom in turn that group supports then.

Mr. Allen: That's right.

But what the district judge was saying was, he had found initially that there's nothing to prevent anybody from running in the democratic primary.

One is freely able to run and there's no organization that controls who has access to the primary.

Justice Thurgood Marshall: Mr. Allen, it just so happened that there weren't any Negroes in the democratic part.

Mr. Allen: I'm sorry, Your Honor?

Justice Thurgood Marshall: Why shouldn't he rely on the fact that it just so happened that there weren't any Negroes in any Democratic Party?

Mr. Allen: They've -- they run in primaries, Your Honor.

They have not been elected.

They have not been selected in the primary that's what he was relying.

Justice Thurgood Marshall: And it was a Democratic Party that controlled.

Mr. Allen: The democratic that he was --

Justice Thurgood Marshall: When did a republican ever get elected?

Mr. Allen: No, not at all.

Not at all.

It was a democratic primary.

Justice Thurgood Marshall: That's what he was talking about.

Mr. Allen: Oh!

Yes, Your Honor but he was talking about the habit of democratic voters of voting according to race.

That's what he was talking about in there.

Justice Potter Stewart: In the primaries.

Mr. Allen: In the primaries, yes.

Justice Potter Stewart: Which and the winner of the primary would be the slated candidate knowing the candidate --

Mr. Allen: Would be the party candidate.

Justice Potter Stewart: Who would be supported by the --

Mr. Allen: What I understand that the slating -- the slating criteria and has derived from White against Regester has to do with an earlier stage in the process where a group was put up with some sort of sanction in the Democratic Party.

Justice Potter Stewart: While in that setting, it was equivalent --

Mr. Allen: Yes.

Justice Potter Stewart: -- to nomination --

Mr. Allen: Yes.

Justice Potter Stewart: -- by an organized group?

Mr. Allen: But --

Justice William H. Rehnquist: Mr. Allen, I have joined opinions which refer to the term slating and I must confess I am not entirely sure what it means.

Could you give me your understanding on that?

Mr. Allen: My understanding is that an organization within the Democratic Party.

The leadership if one will, they put up a slate of candidates in the primary and that slate, either nobody runs against them or they always win.

Justice Potter Stewart: Is that --

Mr. Allen: That is my understanding from White against Regester, Your Honor.

Justice Potter Stewart: Does that happen in this County here?

Mr. Allen: No, it does not.

Justice Potter Stewart: Which is the nominee if you run in the primary, --

Mr. Allen: You run in the primary.

Justice Potter Stewart: -- the nomination for election to the school board --

Mr. Allen: And --

Justice Potter Stewart: -- and they -- if you win the primary then you're party --

Mr. Allen: Then you --

Justice Potter Stewart: -- presumably supports you.

Mr. Allen: And you win the election has been true up till now if you're a democrat.

Justice Byron R. White: Now suppose, suppose in Mobile let's run the way it is but in the adjoining city, democrats always been the general elections but the candidates get put up, are chosen by the democratic party in it's own low conclave at a convention or in a back room somewhere and it's freely conceded that in the choosing of the democratic candidates in the general election that there is racial voting.

Mr. Allen: Racial voting nothing more than that?

Or --

Justice Byron R. White: Or just that the people the people who are getting together in the Democratic Party --

Mr. Allen: I understand what you're telling.

Justice Byron R. White: -- are getting together in the backroom.

There's plenty of Negroes there and --

Mr. Allen: Yes.

Justice Byron R. White: -- but there are more whites.

Mr. Allen: Yes.

Justice Byron R. White: And in the backroom they all --- they have show hands and they make nominations and some win and some lose and always the whites win and the blacks lose and then the party comes up with this, if you want to call this slate of white candidates.

Would that be the same answer?

Mr. Allen: I guess Your Honor I think it would depend -- I've not thought precisely about that but it would depend, I take it on whether one were at the poll of a real election or at a poll of the backroom deal that determines --

Justice Byron R. White: No, the only people who go into a democratic primary are the registered democrats.

And the only people in the backroom in the adjoining city are the democrats who choose candidates.

Mr. Allen: Well, are some are the registered democrats.

I suggest that may make a difference, Your Honor.

I suggest that may make a difference, that here where one has unquestioned access to a very formal method of choosing candidates that amounts, that amounts in this community to election.

Justice Thurgood Marshall: And the Negroes there have access to that slate in Mobile?

Mr. Allen: The Negroes are able to run in the democratic primary without hindrance.

Justice Thurgood Marshall: All for my question is right from left, come at the slate, the group that has put up, the group that is always elected.

The Negroes in Mobile have never gotten on that, have they?

Mr. Allen: They have not won a primary run-off election.

That is absolutely true, Your Honor.

Justice Thurgood Marshall: No, sir.

Please, at the end on the slate.

Mr. Allen: They had never been the democratic nominee.

That none of them has been the democratic nominee.

Justice Thurgood Marshall: A judgment for the slate, didn't they?

Mr. Allen: If he meant anything by the slate that had to be, what he meant and he meant again that it was result of people's action in the polling booth that blacks were not able to be the Democratic Party nominees.

Justice Thurgood Marshall: Did the polling booth pick the slate?

Mr. Allen: Yes, Your Honor.

Yes, the democratic primary.

Yes.

Justice Thurgood Marshall: You mean to tell me that the slate had been picked by a group of people in the democrat, is it or isn't that then the Democratic Party in Mobile that did it or maybe on the democratic part?

Mr. Allen: Well, Your Honor that is what this record shows is that there was a free and formal primary election.

Justice Byron R. White: But has there any been a Negro in the -- on ballot of the general election?

Mr. Allen: In the general election?

In an at-large election?

I just don't know whether other parties or republicans had put up and it was taken for granted on this record that the democratic nomination that matters to the election.

Justice Byron R. White: At least the election, there's never been a democratic candidate who is a Negro in the general election.

Mr. Allen: And for the school board that is correct, Your Honor.

No, they run four times, I mean different black candidates run four times in the period we're concerned with each among got to the run-off, each of them was failed of nomination.

Justice William J. Brennan: Mr. Allen, let me be sure I understand this.

As I understand that your point, there is no slate making committee within it?

Mr. Allen: No.

Justice William J. Brennan: And therefore what you're saying is that anytime a democrat is a candidate for the nomination of this party, he's just decided to run himself.

Mr. Allen: That's correct Your Honor, exactly correct.

Justice William J. Brennan: Is that -- is this an unusual situation?

Mr. Allen: It's a non-paying job, anybody apparently five, six, eight people run each time for each of these positions and --

Justice Thurgood Marshall: Is it true that the judge know more about it than you and I?

Mr. Allen: The judge know more about it than you and I but I really think I am faithfully rendering what the judge said Your Honor I mean, the --

Chief Justice Warren E. Burger: The usual reasons for at least whether you are thought to be the usual reasons, people running for public office that pay us 30-40,000.00 a year or even 25,000.00 aren't present in the school board election?

Mr. Allen: No, no, no.

That's correct.

Chief Justice Warren E. Burger: It's just work and public service?

Mr. Allen: Public service, whatever motivates people to undertake --

Chief Justice Warren E. Burger: Dedication.

Mr. Allen: Public Serv -- public service, that's correct Your Honor yes, yes.

The -- I will skip over for a moment a couple of the Zimmer factors that the district Judge and just state that his overall conclusion was quite predictable.

He paraphrased passages from some of these courts voting delusion opinions and then he concluded that the plaintiffs had met their burden by showing an aggregate of the factors catalogue in Zimmer, and the Court's remedy for this constitutional violation had therefore found was also predictable.

Judge Pittman professed not to endorse quota voting or quota elections but he adopted a plan that was designed, these are his words.

To provide blacks a realistic opportunity to elect blacks to the Board of school commissioners.

In fact, two of the five single member districts that he created would have weighted -- would have weighted black populations of more than 55% and the remaining three districts would have weighted black populations of less then 14%.

The Court of Appeals affirmed this decision according to the Zimmer factors.

It said that the District Court that applied the proper standards and that he's findings were not clearly erroneous and decided just one case the decision of a different panel on the Court of Appeals in the City of Mobile's case.

Now a good deal of argument has gone on about exactly what the Court of Appeals thereby decided and whether in particular the Court of Appeals decided and whether it is necessary to make out a violation of the Equal Protection Clause and of the Fifteenth Amendment to show purposeful discrimination on the part of the state.

The correctness of that view which I think clearly is correct that purposefulness is required is contested.

So let me turn first by way of analysis of that to a couple of points that I think cannot be contested.

One is that no one has asserted or even suggested that the at-large system here was conceived in racial animus with a deliberate purpose of discriminating against blacks or submerging the votes of blacks.

The second is that the District Court made its decision on the basis of an understanding that the Court of Appeals as Zimmer factors captured the effects of an at-large system on minority voters and candidates not on the understanding that those factors go to an intent to discriminate.

At that point we get into more contentious ground.

At one point in his opinion, Mr. Justice Rehnquist referred to the parallel point in this opinion in the City of Mobile's case, at one point in his opinion removed from his Zimmer analysis.

Judge Pitts -- Judge Pittman said that it was possible to perceive a present purpose to dilute black votes based on legislative in action, based on the failure of the legislature to do anything about this at-large system that had been created so many years before.

I can think that the person reading that passage, it's at page 34 (a) of the appendix in our case, will agree that this is no finding.

No finding of a present purpose to discriminate even though that's how the plaintiffs now like to describe it.

It's in a Section titled “Conclusions of law.”

It's not proceeded by any factual analysis, it's exactly the same language that used in the different, factually different City of Mobile case yet it simply -- I think fairly cannot be considered a finding to which any deference is owed.

Justice Potter Stewart: Page 34 (a) of not of the jurisdictional statement?

Mr. Allen: No, of the appendix.

Justice Potter Stewart: Of the appendix and what is the middle paragraph?

Mr. Allen: Yes, the middle paragraph, the last two paragraphs, Your Honor.

Justice Potter Stewart: Right.

Justice William J. Brennan: Mr. Allen, I suppose your answer to a question Mr. Justice Black asked in the other case might be somewhat different in the one that was given.

I think you've taken -- you take that there is a difference between this case and the other case, or maybe you don't.

Mr. Allen: In what respect Your Honor?

Justice William J. Brennan: Let me ask you.

Do you think there are differences?

Mr. Allen: There are differences.

There are differences.

I think --

Justice William J. Brennan: That have any significance on the outcome?

If we dedide --

Mr. Allen: No.

Justice William J. Brennan: -- one way, do you think they both should go the same way?

Mr. Allen: Yes, I'm persuaded of that, yes Your Honor.

Justice William J. Brennan: Well then, if there is evidence to support the finding that there was a deliberate maintenance of the at-large system in the other case, what is the relevance of the absence of such evidence in this case?

Mr. Allen: I didn't suggest that there was -- I'm sorry I can't understand Your Honor's question now.

Justice William J. Brennan: What is the --

Mr. Allen: I did not mean to suggest the presence of such evidence.

I merely meant that there was no rule or factual analysis that preceded this statement in either case.

In either -- no it's exactly --

Justice William J. Brennan: Suppose they were not adopted in that sort of thing but there was not that --

Mr. Allen: There was not that same kind of thing here that's quite right, Your Honor, yes so to that extent it may be different but --

Justice William J. Brennan: Well in other words, if this finding were supported by evidence would that make your legal position any different?

Mr. Allen: If -- if there were some evidence that the legislature had deliberately acted lately to ratify or otherwise to confirm --

Justice William J. Brennan: Let's take a hard case, suppose somebody said let's have -- change the system so that there would be some kind of a proportional representation and everybody is, well not do that then you might get some blacks on the school board, would the case be different?

Mr. Allen: I can imagine a case of that sort of thing being different.

I think it is a --

Justice William J. Brennan: And arguably the other cases --

Mr. Allen: It's a dangerous inquiry to get into, Your Honor.

The difficulty --

Justice William J. Brennan: But arguably, the other cases are more like that than this.

Mr. Allen: Well it may -- I don't just, I'm not that well-versed in the legislative goings on in the other case to know that but I did not mean to imply that and what I said in comparing the two.

The -- I was at the point where we were talking about whether a present purpose to discriminate was found here and in its opinion, in the City of Mobile's case which was cited, in this case is decisional authority.

The Court of Appeals was more specific.

It said in that case that when you've aggregated the Zimmer factors and they add up to voting delusion, then at least when the delusion is longstanding, there's the requisite intent if the legislative body has not acted to change the situation.

That is substantially the reasoning of the Court of Appeals if I understand but that sort of intent I submit is a construct.

It's artificial.

It's the same as saying really that the Zimmer factors themselves are enough if the system of at-large elections is old enough to permit of the --

Justice Byron R. White: I take it that, one of the operative facts in the exclusion or the failure of Negroes to be nominated or to be elected in one of the operating facts is the block voting.

Mr. Allen: There's -- that is all that's a bit, Your Honor.

Justice Byron R. White: Yes.

Mr. Allen: That is it.

Justice Byron R. White: But you accept that?

Mr. Allen: Oh, yes.

Yes, there seems to be a --

Justice Byron R. White: Suppose there is -- so that there is a -- certainly there is purposeful exclusion of Negroes from office but I suppose your answer to that is well the state is just not responsible.

Mr. Allen: The state is not responsible I think none of this Court's decisions comprehends a state action.

The action of --

Justice Byron R. White: Because there's no question whatsoever and I take it from -- it argues of anybody that at some point in this process there is purposeful exclusion it's just a question of by whom.

Mr. Allen: By whom and it's by individual voters of voting their will.

That that --

Justice Byron R. White: Then Whitcomb against Smokey (ph) might become relevant.

Mr. Allen: Well, I suggest not Your Honor.

Justice Byron R. White: You hope.

Justice Thurgood Marshall: Of course the Fifteenth Amendment doesn't require state action.

Mr. Allen: It says -- well it requires action by state or the United States, Your Honor.

Justice Byron R. White: The Fifteenth?

Mr. Allen: Fifteenth shall not be abridge, denied or abridged by the United States or any state on account of race, color --

Justice Byron R. White: I suppose it isn't state action.

I take it is that here's as a state or a city that provides a primary mechanism for the selection of candidates and it permits a -- and within that system deliberate discrimination goes on by the people who entered the ballot box.

Mr. Allen: But they seem to vote according to race and at least some races that -- that is correct, Your Honor.

Yes, that is what it amounts to.

Argument of Eric Schnapper

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

Mr. Schnapper.

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

These few cases raised a variety of different issues and I thought it might be useful to briefly sketch out what they are.

First, there is a statutory claim in this case is which has the Chief Justice noted in the last argument ordinarily as a claim to this result prior to decision in any constitutional claims.

We alleged that under Section 2 or the Voting Rights Act, the at-large election is using these cases violates Section 2 and we rely in particular on statement by Attorney General Katzenbach which is quoted by this Court in footnote 31 in Allen which says that Section 2 covers purpose or effect that it has, I would paraphrase that, the same meaning of Section 5 does but with a different burden of proof.

Second, there is a constitutional claim under White against Regester.

Now, with regard to that, we are in agreement with the government that we seek only to apply decisions of this Court in White and before and after it which I think it fairly well-established.

We are in disagreement with the Government which reads some intent requirement in to White.

We see no intent requirement in White and we've set out at length in our brief why.

Third, we claim that in this case is the systems election are maintained because of a deliberate decision to keep blacks from public office.

We maintained that the hypothetical posed by Justice Stevens is in fact the case.

Justice Thurgood Marshall: Presumed by whom?

Mr. Schnapper: Excuse me?

Justice Thurgood Marshall: Who has continued and keep them from voting, the city, the state?

Mr. Schnapper: Well, our answer would be slightly different in the two cases, I mean we would say the state in the constitutional sense but I think that it is more complex than that.

Justice Thurgood Marshall: Well, who is maintaining this discrimination?

Mr. Schnapper: Right.

In -- in the case in the city case the as Mr. Justice Stevens noted, those direct testimony by members of legislature who were there at the time the decisions are made not to authorize single-member districts, although that decision was made for racial reasons and they were made essentially by the members of legislature from Mobile.

That's the way the legislature operates.

Justice Thurgood Marshall: And Mobile controls the legislature?

Mr. Schnapper: Well, that seems to be an important part of analysis of the school board case.

It is not critical to the analysis of the city case.

In the school board case, we have a rather complicated serious facts which are set out in our brief involving the introduction and passage of deliberately defective legislation in the legislature in order to prevent the federal litigation from going forward and that becomes I think the operative decision and as a practical matter of those decisions were made by the defendant school board members and it is their contention below and I think correctly that they were calling the shots in the legislature about what was being introduced in the past.

Justice Potter Stewart: So ultimately it is the voters, isn't it?

Except for this so-called block voting, nothing the legislature could do and the state capital or the city or the school board could do or could prevent Negroes being elected?

Mr. Schnapper: Well, I do not want to recount there.

The history of discriminatory devices that have exists in Alabama over the years.

Justice Potter Stewart: But ultimately, it's the voters?

Mr. Schnapper: But I think this intentional scheme to discriminate on the part of the state wouldn't work if you did not also have black vote.

Justice Potter Stewart: You have to and that's within the voluntary control of each individual voter.

Mr. Schnapper: Mr. Justice Stewart I think that if we are right and Mr. Justice Stevens' hypothetical was the case mainly that this election system is being maintained for the expressed purpose of keeping blacks and being elected.

A purpose on the part of the officials of the State of Alabama, that that violates the Fourteenth Amendment and Fifteenth Amendment of the Constitution.

I had nothing in this decision of this Court suggest that a motive to -- a racial motive which is not denying in nature but here clearly vicious can somehow rather be sanctioned because it only works because of private discrimination as well.

I think that it would be analogous to a situation where for example the state as happened in 1903 expressly authorized the state parties to exclude the voters on the basis of race and then the parties did that.

I mean there was such action which was less state action than the actions of the legislature although it may be for constitutional purposes that was also state action with the part even.

But I do not think that that part of the cause on mechanism is of any relevance.

I think the state acts from hostile racial motive that violates the Fourteenth Amendment and Fifteenth Amendment and that would be the end of the case.

In addition, --

Chief Justice Warren E. Burger: But you --

Mr. Schnapper: Yes.

Chief Justice Warren E. Burger: -- then, I take it, relate the historic hostile motive of what existed back in 1826 and 1836 due to a hostile motive today because the legislature did not change the structure -- we have a different kind of discrimination.

Mr. Schnapper: We have a situation here exactly like Arlington Heights.

In Arlington Heights there had been a zoning classification, the Court's opinion show if not win in origin.

But a dispute arose as to the decision of Arlington Heights not to change the zoning classification and the Court held and I think properly that if that refusal to change had been racially motivated, the zoning would have been unconstitutional and it was of no importance when or how that zoning classification had come into existence and that's our contention here.

We just ask you in that regard to follow Arlington Heights.

Justice Thurgood Marshall: How many legislatures do you need to maintain your point of majority?

Mr. Schnapper: I think -- I think the question would be who are the people that actually making a decision.

If the legislature effectively delegates control over this to a single legislature as indeed exists in Alabama.

Justice Thurgood Marshall: One legislature?

Mr. Schnapper: The way the system works is ability of the sort affecting -- ability affecting the situation.

Affecting only Mobile would have to be approved by the legislative delegation from Mobile and of course, the role in the Senate is that that any single member of the state senate can veto a Mobile Bill and that's precisely what happened.

So it was one center.

The question is not one of numbers; the question is who is making the decision on behalf of the state?

Justice Thurgood Marshall: So you can say that the whole legislature of Alabama including Fred Gray is guilty of racial prejudice?

Mr. Schnapper: Your Honor, I wouldn't characterize it in that way but --

Justice Thurgood Marshall: Wouldn't think you could.

Mr. Schnapper: But the -- Your Honor, if the State of Alabama and the legislature delegates the authority for making decision to one member of legislature and the District Court found that that was a case and it's not with finding it's contested then the motives of the person that makes that decision is the operative motive for the State of Alabama.

Justice Thurgood Marshall: And we're bound by that?

Mr. Schnapper: What?

And I think you're bound by that.

Chief Justice Warren E. Burger: In other words, from the legislature as a whole in your hypothetical your explanation delegated that power to one man they in advanced adopted the action he was taking in the motives that motivated it?

Mr. Schnapper: Well, they could have changed their mind but they didn't.

I mean, it seems to me no other conceivable rule is possible.

I mean otherwise you could simply nullify the Fourteenth Amendment by systematically referring any legislation as you wanted to undertake with it's nullify motive to single legislative who would then act from racial motives and then that you come in to defend the suit and say well you know, it was only Senator so and so, and the rest of us never even thought of that.

I mean that just would be I think a rule that would be an invitation to evasion of constitutional commands in this area.

Finally, I was just trying to sketch out here what the arguments were presented by the case.

There is a claim under the Fifteenth Amendment and as I think Mr. Turner noted that is somewhat narrower in its impact than our claim under White against Regester because of course it would be in limit as to racial issues.

Both Government and we contend that the Fifteenth Amendment is not limited to nstances of discriminatory purpose.

I think we have a somewhat different approach to it.

We were like particularly on the legislative history of the Fifteenth Amendment and the concern of the product Congress by adopting the Fifteenth Amendment to ensure that blacks were armed with an effective franchise by which they could protect themselves against government discrimination.

We think the record clearly shows that they do not have that in this case.

The Government advances an argument I think closer to that suggested by Mr. Justice White to wit that, we have something here at akin to the Terry against Adams and that is and I think you were articulating it of the Democratic Party has picked its candidates on the basis of race and that decision is effectively state action because it controls the outcomes of the elections.

Justice Potter Stewart: But is there any issue here as to -- is there any claim that the party primary the democratic primary is not a free and open primary, open --

Mr. Schnapper: No, it is as free and open as the primary in Bexar County, Texas which this Court unanimously held violated White against Regester and --

Justice Potter Stewart: They have legislating there if I know.

Mr. Schnapper: No, not in Bexar County, only in Dallas County.

Justice Potter Stewart: B-E-X-A-R?

Mr. Schnapper: B-E-X-A-R, right.

Justice Potter Stewart: Why is it -- I know it but --

Mr. Schnapper: What?

San Antonio.

The -- there was this in expressed finding effective to recent slating in that case and I thing that's quite clear.

Justice Potter Stewart: And there wasn't --

Mr. Schnapper: There was slating in Dallas.

There was not slating in Bexar County.

There's not slating here.

Justice Potter Stewart: There is just a nomination by a party primary in which any qualified democrat can vote?

Mr. Schnapper: That's an active --

Justice Potter Stewart: Regardless of his race?

Mr. Schnapper: Yes.

Justice Potter Stewart: And that's all conceded, isn't it?

Mr. Schnapper: Yes, I think we are in agreement.

Justice Potter Stewart: There is no secret that the inside groups that slates or --

Mr. Schnapper: No, there is none.

Justice Potter Stewart: Or no claim that there is?

Mr. Schnapper: No claim of that.

Well, there's a little claim of that on the part of the other side but they certainly present that on their own.

Justice Byron R. White: Are there anybody who get on the general election ballot except by the primary?

Mr. Schnapper: In the case of this -- in the case of the (Inaudible), I don't believe so.

My understanding is that its just an ordinary primary you've got to be dominated by one of the parties and nomination by the democratic parties equivalent of election.

Justice Thurgood Marshall: Well, what happens after the democratic primary by the school board?

Mr. Schnapper: Well, there's a general election but it's often uncontested.

It was uncontested this year for example.

Justice Thurgood Marshall: Well, if it is contested, why do you contest it?

Mr. Schnapper: You get the nomination to Republican Party.

Justice Thurgood Marshall: What about the non-partisan party?

Mr. Schnapper: The non-partisan voters, they gets in a party, it was private organization that endorse people.

Justice Thurgood Marshall: Can they get somebody --

Mr. Schnapper: What?

Justice Thurgood Marshall: -- get somebody on there?

Mr. Schnapper: Only if they can get a party to nominate and they are like the FFL or any public interest group.

Justice Thurgood Marshall: It has to be a party?

Mr. Schnapper: It has to be a party.

Well, those are the four claims before the court.

Justice Thurgood Marshall: Is there any mechanism for the nominated by petition after the primary or?

Mr. Schnapper: The record does not reflect to that.

Justice Byron R. White: Excuse me.

Mr. Schnapper: There may be procedure that sort of, it was not part of the case as it was litigated below it's not --

Justice Byron R. White: Because you haven't quite explained on your theory why you think the Fifteenth Amendment claim is any different in the Fourteenth amendment claim?

Or with -- with respect to how the state is involved.

Mr. Schnapper: Oh!

I'm sorry.

Justice Byron R. White: The state -- the denial of the right to vote still has to be made by the state?

Mr. Schnapper: That's right.

Justice Byron R. White: So tell me how the state is involved in the Fifteenth Amendment violation.

Mr. Schnapper: Well, our claim is that that the Fifteenth Amendment prohibits the state from adopting election systems which have a discriminatory effect and this we claim is such the system.

That -- that doctrine is somewhat different than the doctrine we find in White against Regester for variety of reasons not the list of which this that it is, why is it limited to the problem of at-large election systems?

The Fifteenth Amendment will cover any election law but on the other hand the Fifteenth Amendment is limited to questions of race.

Justice Thurgood Marshall: You mean adopt.

SDo you mean you maintain, don't you?

Mr. Schnapper: For purposes of my motive argument, I would say adopted or maintained, yes.

With regards to the Fifteenth Amendment, we place particular emphasis on the phrase on two things first.

These are the phrase abridge in the language of the Fifteenth Amendment.

If you recall the history of the times when the Fifteenth Amendment was adopted there was nothing then towards that could correspond.

The south was under the control of the union army and blacks were free to vote everywhere.

The concern, I think we think of Congress in adding the word abridge was not merely that when the whites came back and the power after reconstruction they would strip blacks of the right to vote of all but that new forms of discrimination, new devices might be adopted that had these kinds of impact.

I know Justice White that there was, I think an understandable concern in Washington against Davis about the ramifications of having an effect to one of the Fourteenth Amendment because it would call on the question wide variety of governmental programs, housing, taxes, and all sorts of things.

And we think that those problems aren't raise by the effect to what we urge under the Fifteenth Amendment.

It's our contention -- it obviously its scope would be limited to claims of discrimination in voting and we think it appropriate that a voting, the blacks be protected in voting to a greater degree than other areas.

Justice Byron R. White: You have to say the state is efficiently involved if it maintains the system which permits individual discrimination at the polls?

Mr. Schnapper: Yes, I mean that's right.

Justice Byron R. White: That's it, isn't it?

Mr. Schnapper: That is it.

That is it.

The role of state is in creating and maintaining the at-large system.

Now, I'd like to turn at this point.

Well, there's one other point I think which does separate us from the appellants in both of these cases.

I think we have a very different view of what were the appellate courts are in resolving these cases.

I think it -- listening to their argument I had sense that we were back on the trial court and that you are sitting easy prayers or perhaps, writing circuit as occurred in the old days.

I think as Justice Stevens pointed out that role of the court is more limited.

That absent some sort of palpable error which I don't think is present here that the findings of the trial court really do have to be accepted.

In our view, they are sufficient to manage judgment for us.

Justice William H. Rehnquist: What if we concluded that the trial court did not find that there was an intent to discriminate, and that the Court of Appeals concluded that there was an intent to discriminate?

Now is that a two-court finding that we ought to affirm?

Mr. Schnapper: If you hold that -- let me make sure that is right that the District Court didn't find intent but --

Justice William H. Rehnquist: Right.

Mr. Schnapper: -- the Court of Appeals did find intent.

Justice William H. Rehnquist: Right.

Mr. Schnapper: I do not, well that's not under the two-court rule.

I think in all candor that the practice of the Court in that situation is to come very close to putting itself in the shoes of the Court of Appeals.

So I don't think the same difference would exist if it were merely a Court of Appeals finding of intent.

Justice William H. Rehnquist: There is a problem here in what standards are applied, isn't it because Washington against Davis came down after this litigation had started and as I understand that the Nevett brought force or whatever was, was decided that intermediate stage of this litigation so that you have a little bit of a shifting of legal standards?

Mr. Schnapper: Washington against Davis was decided before the cases went to trial and so at time the cases went to trial there was already a dispute between the parties as to whether you needed intent under the Fourteenth Amendment.

We maintain there as do now that the Equal Protection Clause has two distinct branches.

Justice William H. Rehnquist: I thought the litigation was eight or nine years old.

Mr. Schnapper: No, surprising of this case is only four years old.

Justice Thurgood Marshall: Bearing in mind that this is a direct appeal.

Mr. Schnapper: Yes.

Justice Thurgood Marshall: What is it that we are limited from changing under your concept of the two-court rule?

Mr. Schnapper: Well, I think the ordinary practice of the Court is the same --

Justice Thurgood Marshall: Isn't the first thing you got to pass on is the constitutionality?

The first thing, we have passed are direct appeal, don't we?

And secondly, we don't have the power the two-court rule on constitutionality, do we?

Mr. Schnapper: Well, that's several questions.

Let me -- let me try to answer them all.

First, I think that the first question you probably ought to reach consistent with the general practice of the court would be the statutory issue and I say it not because we prefer to win on one theory or not --

Justice Thurgood Marshall: Is there a direct appeal?

Mr. Schnapper: It is a direct appeal but I think the Court's normal --

Justice Thurgood Marshall: What is before us on a direct appeal?

That constitutionality of a statute?

Mr. Schnapper: Well, I think we are entitled as we are in any case to urge in support of the decision below any ground that was raised below.

Justice Thurgood Marshall: Oh, sure but I don't think you are --

Mr. Schnapper: And -- and that's where the ground was raised below.

Justice Thurgood Marshall: Well, I don't think you have the right to prevent us from considering the constitutionality of the statute that's involved.

Mr. Schnapper: We have no right to that and no intention of trying to do that.

Justice Thurgood Marshall: Well, I misunderstood you.

Mr. Schnapper: But I -- I meant only to recall to you the normal practice of the Court which is to decide statutory issues first.

We have no preference on that, if you want to decide the most sweeping constitutional issues then the narrow constitutional issues then the statutory issues --

Justice Byron R. White: As long as we decide for you?

Mr. Schnapper: That's our position.

That's our position.

So, now -- but I think you had another question I don't think I fully answered.

Justice Potter Stewart: Are the two-court rule under factual finding?

Mr. Schnapper: I think the truth, right.

Our position would be that the two-court rule is as applicable here as always.

The two-court rule does not preclude you from deciding constitutional issues.

It -- it only suggests that with regards to specific factual matters that you generally uphold the findings of the two courts below unless there is an unusual circumstance.

Justice John Paul Stevens: Mr. Schnapper, could I ask you a question?

Mr. Schnapper: Yes.

Justice John Paul Stevens: Your -- your point in Mr. Allen is said that when you really analyze the facts, the case boils down to as block voting plus at-large and at-large system plus the minority of blacks in the voting population and in your brief, you emphasize those very facts --

Mr. Schnapper: Yes.

Justice John Paul Stevens: -- as distinguish other cases, do you think those facts were enough?

Mr. Schnapper: It is our contention that they are indeed enough and they are enough under White against Regester, under Section 2 of the Voting Rights Act and of the Fifteenth Amendment although for somewhat different reasons because the rational of each of those rules is different.

With regard to that I think perhaps I should answer a question that Mr. Justice Rehnquist asked earlier about Zimmer versus McKeithen.

The -- both parties in Court of Appeals relied on Zimmer against McKeithen and you will find in the brief for the school board, the statement which says they think Zimmer against McKeithen is correct.

I think we were all obligated to operate in the context of Zimmer in the Courts of Appeals.

I think here, it is indeed argue that Zimmer was too constricted in its application of White against Regester and that that left proof is required and is elaborated in Zimmer and we also have disagreement with the part of Nevett against Sides which is of course subsequent, which holds that intent is in fact necessary under White or Zimmer.

We say there's a reason for that contention in our brief at length.

Your Honor, I'd like to touch very briefly on our claim under the Voting Rights Act which we think is the issue which the Court ought to begin.

We -- we've -- we've noted that the legislative history on this matter as such as this quite clear that Attorney General Katzenbach testified on the very issue of whether or not the statute covered purpose and effect and it said that it did.

We think if we're at the substantive standard under the Voting Rights Act under Section 2 is exactly the same as the substantive standard under Section 5 which is to say that if the election law permits white voters to nullify the electoral preferences of blacks that it falls under the Voting Rights Act.

The difference -- the only difference that we see between Section 5 and Section 2 is a procedural one.

That the burden of proof is on the state under Section 5, the burden of proof is on the plaintiff under Section 2.

Justice William H. Rehnquist: Well, your opponent cites that Senator Dirksen statement that sentence in Section 2 is just a restatement of the Fifteenth Amendment.

Mr. Schnapper: Well, I think it's almost.

I think the word almost appears and I think that's -- the value of that is little hard to know because nobody I think at that point necessarily knew what the Fifteenth Amendment mean.

Justice William H. Rehnquist: But Attorney General Katzenbach did.

Mr. Schnapper: And he said purpose or effect.

He was quite clear about that.

Justice William H. Rehnquist: Who passes laws?

The attorney general or the congress?

Mr. Schnapper: Currently, the Congress does it.

Justice Potter Stewart: But not a single senator?

Mr. Schnapper: But not in -- not in the Senate.

Not in the Senate.

If we write in our contention the standard of Section 2 and Section 5 are the same then I think there was also the case would be clear.

I think if Alabama had exempted to switch to the system, from the single-member system there'll be no question that they couldn't do it and we think Section 2 invalidates it for that reason.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Mobile v. Bolden - Oral Reargument

admin — Thu, 13 Sep 2012 21:28:19 +0000

Case:

Mobile v. Bolden

Media File:

77-1844_19791029-reargument

Related Transcript:

1978_77_1844_reargument.xml

Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

CITY OF MOBILE, ALABAMA, ET AL., Appellants, v. WILEY L. BOLDEN, ET AL., Appellees; ROBERT R. WILLIAMS, ET AL., Appellants, v. LEILA G. BROWN, ET AL., Appellees

No. 77-1844, No. 78-357

October 29, 1979

The above-entitled matters came on for oral argument at 10:04 o'clock a.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

CHARLES S. RHYNE, ESQ., 1000 Connecticut Avenue, N. W., Washington, D. C. 20036; on behalf of Appellants City of Mobile Et Al.

JAMES U. BLACKSHER, ESQ., 405 Van Antwerp Building, Mobile, Alabama 36601; on behalf of Appellees Bolden Et Al.

JAMES P. TURNER, ESQ., Deputy Assistant Attorney General, Civil Rights Division, Department of Justice, Washington, D. C.; as amicus curiae supporting Appellees.

WILLIAM H. ALLEN, ESQ., Covington & Burling, 888 Sixteenth Street, N. W., Washington, D. C. 20006; on behalf of Appellants Williams Et Al.

ERIC SCHNAPPER, ESQ., 10 Columbus Circle, New York, New York 10019; on behalf of Appellees Brown Et Al.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear arguments first this morning in No. 77-1844, City of Mobile v. Bolden, and the consolidated case of Williams v. Brown.

Mr. Rhyne, you may proceed whenever you are ready.

ORAL ARGUMENT OF CHARLES S. RHYNE, ESQ., ON BEHALF OF THE APPELLANTS, CITY OF MOBILE

MR. RHYNE: Mr. Chief Justice, and may it please the Court:

This case presents a question of whether the Equal Protection Clause of the Fourteenth Amendment requires the abolition of the Mobile commission form of government elected at large.

This is the first case involving a state or a local government where the entire form of government, not just the manner of its election, has bean held unconstitutional.

Mobile is one-third black. The District Court held that only the abolition Of the commission form of government in its entirety could "provide blacks a realistic opportunity to elect blacks to the city governing board."

The District Court also held that equal opportunity included the election of representatives of their choice. Now, the ultimate issue in this case is whether the only way to satisfy the constitutional requirement of equal protection, equal participation in the voting processes of a government is by electing a black to the Mobile governing body.

Now, the District Court held that while it was making all of the findings about various subjects that I just mentioned, that blacks did not participate effectively, and we say this is a clearly erroneous error because the record establishes beyond question that in every contested election in the City of Mobile, and the last one was in 1973, the black vote is decisive. In 1973, for example, Commissioner Greenow ran against Mr. Bailey, who had defeated Commissioner Langan, who had been elected and re-elected 16 years with black support. And in the first election he received only 15 percent of the black vote. In the runoff he received 43, and that elected, him.

And as we state and quote on pages 9 and 10 of our brief, the judge is questioning Reverend Hope, who is the black president of the Non-Partisan Voters League, and he asked him, "Isn't it a fact that the black vote in the Greenow race was the difference, and in the Mimms race," the other commissioner, and he said, "Yes."

And then in addition to that, I would point out to the Court that Commissioner Doyle had no opposition, but he testified that when he first ran, that he went to the Non-Partisan Voters League, which is the only slating organization in Mobile and it's black, and he was screened by them, and they endorsed him. And each one of these appellants have gone to that league and received its endorsement after being screened by them. And so the blacks do participate very vigorously in the electoral processes of Mobile.

And so I say that where the elections are non-partisan and where each of the appellants go and seek the black vote, and where it's decisive, it cannot be said to be submerged or diluted.

Now, the Reverend Hope, when he was testifying in his final statement that we quote on page 10, makes just one sentence which I would like to quote to the Court because I think it's important, because he was talking about the fact that he was speaking for the entire League, which is all black and the most important slating organization. He said: "They feel the candidates they have elected" -- now these are the three appellants who are here, and by "they" he means the Non-Partisan Voting League -- "have done a very good job along that line of serving blacks."

And over and over again this record is full of instances in which blacks testified that when they supported these appellants, they went down to City Hall and they asked for what they wanted, and if it was possible in law and money, they got it.

I'm not going to read the long list, but I can say this: Eight, the only eight of the witnesses of the plaintiffs who were asked if they'd been down to City Hall, and under this open door policy that's maintained by these commissioners who exercise dual functions under the commission form of government, they have both legislative and executive powers, so they can in effect do it all. If they tell one of these blacks, "You're going to get a pavement," "You're going to get this," they get it, because they have the power to do it.

And so the fact that they not only take part in the entire voting process from registration all the way through, but they then in effect collect on their political obligations shows that they play an extremely important part in the political processes of Mobile.

Now, we had one time, in 1973, where three blacks ran, and those three blacks didn't carry the black wards. Now, as Witness Alexander, Dan Alexander who is a witness for the plaintiff, testified in his testimony for the plaintiff and election for commissioner and an election for the school board are two entirely different things. When you run for the school board, and Dan Alexander is a member of the school board, you talk about what you can do for the school kids, and it's county-wide. When you run for commissioner, you talk about what a good businessman or woman you are, because the commission form of government is supposed to elect businessmen to run cities. That's why it came into existence, and that's why over and over again, when they've had referendums in Mobile -- well, they've had them in 1963 and 1973, according to the record -- the people have overwhelmingly supported this businessman form of local government.

Now, the Court below held that the intent that was important here was not the intent of the three defendants but the intent of the legislature. Now, the legislature is not a defendant here. No State official is a defendant. And they go on and on and on talking about bills that have gone up to Montgomery to change the form of government, and when you're talking about legislative intent, you're talking about a very nebulous thing. But in their supplemental brief they cited the fact that Senator Buskey, a black Senator, had introduced a bill to give the people of Mobile a chance to vote on another referendum about changing its government, and they go on and on about how the fact that that bill went through the House and then lost in the Senate.

What they don't tell you is this, that that bill reached the Senate on its 28th legislative day. It got its first reading that vary day, which is very unprecedented. It got its second reading -- and this is on page 10 and 11 that they discuss this -- its second reading on the 29th legislative day, and then it got lost in the usual pile-up of bills in State legislatures on that last day.

The thing that interests me is that the black Senator from Mobile, according to the journal, had absolutely nothing to say. The bill died.

But again, it was going to give the people of Mobile a chance to have a referendum.

So I urge upon the Court that the relevant intent that you're going to consider intent is that of the three defendants, the three commissioners that are before you, and you can't find in this record, if you read it from beginning to end, any instance in which they who must have the votes of the black to win have discriminated against the blacks. The black votes are equally counted; they have an open door policy; they see them; and as I say, the only eight witnesses of the plaintiff who were asked testified unequivocally that when they went to City Hall, they saw the appellants and they got what they went for, if it was legally or financially possible.

And so it's not the State intent that's so important here. It is the intent of these three appellants. If it was the State intent, why don't they have the State here? Yet the very basis of the District Court decision and the very basis of the Appellate Court decision is the inference that they draw from the fact that no black, and the District Court repeats this three times, has ever won a seat as commissioner of Mobile. He doesn't add the next part of it, which is that no qualified blacks ever run.

And the other inference they draw is that State in-action is circumstantial evidence of invidious intent against what? These three appellants? What do they have to do with the State Legislature's intent? And it's the most nebulous, hardest thing to get at in the whole world. It's like asking Barry Goldwater what Senator McGovern's intent was on a bill. I don't believe that the relevant intent is that of the State Legislature, but the relevant intent is that of the appellant commissioners. They're the only defendants, they're the only ones that are before this Court. And so I urge, indeed, that they have never been shown to have a racial purpose, that they have been shown over and over again to be very sensitive to the needs of blacks, and there is no racial purpose that can be attributed to them in any way, or how can they get over and over the endorsement of the blacks, and how can they, when these only three blacks ran, carry even the black wards?

So another point that I would make is that the Court of Appeals held that there was a very, very strong city governmental intent in at-large elections in Mobile because they were brought in to wipe out ward healing, corrupt government, and that this government has served Mobile well for 68 years, without any charges of corruption or anything else. And that is the good government that they are asking this Court to uphold the abolition of.

Now, the failure of the Court below to find that in this record, over and over again, that the blacks are such an important element of the political processes -- they get on the stand and they brag about how important they are. Wiley Bolden said sure, they follow the pink sheet. That pink sheet is the one that has the names of the people that the blacks have endorsed. And when the blacks ran, they endorsed some of the blacks, but they also endorsed the whites, and the appellants. So I urge upon you that the intent that is important is the intent of these appellants that they have done absolutely nothing that can be called, on this record, invidious discrimination. No black has ever lost an election in Mobile because of polarized voting, and if you're going to draw inferences, why do you have to stop -- they point to Montgomery, they point to Birmingham where tomorrow we may learn something, because the men who got more votes than I think all three candidates, white candidates, for mayor is up for the final vote. I think he got 30-something-thousand and the other three got 30-something-thousand.

But look at Atlanta. Look at New Orleans. Look at Detroit. Look at Newark. And my prime example of all, because I'm leaving to go out there tomorrow, is Los Angeles.

Look at Bradley. Bradley ran when only 17 percent of the people of Los Angeles were black. He was defeated the first time around, but he pulled himself up and ran again, and he's been elected over and over and over again.

But yet in here they talk about discouragement as being the reason that no qualified black has run in Mobile, even though they have equal opportunity, equal access, equal everything, and all they need is a qualified candidate.

Now, it's true that on the record there was some dispute about whether qualified blacks could win. The interesting thing to me was, the judge was working over Mr. Langan, who had won for 16 years straight and then the blacks turned against him so he lost. He was trying to get him to say that no black could be elected. He said, "Well, it depends on the person." And that I think is true. I think the color of a man, the color of a woman, doesn't count in politics any more It's their qualifications. And this commission form of government, above all, emphasizes, as Dan Alexander said, the business capacity of those who want to be commissioners.

Another aspect of this is, there are enormous differences between a city and a State. I don't think that your decisions that relate to State governments really apply here; if you wipe out a multi-member State district, it doesn't change overall the State government. If you wipe out the commission form of government in Mobile, you disestablish the whole government and bring in a whole new government, a mayor and nine councilmen and the councilmen meet once a week and get $50 for a meeting, they can only talk to the mayor, they're not allowed to talk to the employees, and so the blacks really are diluted by that order because now they can go down and see any one of the commissioners and get anything they want, talk to the head man, because they see them all. And under the Court's order, they have to go down and see the mayor and wait in line, and they don't have the clout under the order that they have now.

So --

QUESTION: Under the remedy decreed by the District Court and affirmed by the Court of Appeals, predictably there would be a minority of Negroes in the City Council, wouldn't there?

MR. RHYNE: It looks like there would be three, yas. And so, now, Reverend Hope, for example, would have one of those who he could go see, and he would go down to City Hall.

QUESTION: They would be a minority?

MR. RHYNE: And so now, as the situation is, according to his testimony, he goes down and sees one of the commissioners directly, and the commissioner can order anything. And so they can do it all. So actually they're being diluted.

Now, the -- we cited in our brief the comments that political scientists have made about this. They say that the form of government, local government, is peculiarly something for the people of the locality. I think I've probably read more charters, and I don't mean to brag about it, than any other man alive, because I've lived my life here. I once went out to Denver and met Quigg Newton and people when they were redoing the Denver thing, and I took a stack of characters. I can tell you that there is not a single city charter that is identical with any other. They are always adapted to the needs of that locality. And I'm not sure that courts are political scientists enough to tell local governments what kind of government is good for them.

But I come back to the point I mentioned below already, and I want to emphasize it because I think it's important. Here we have a good government being wiped out based on inferences and circumstantial evidence, as against the record of the election of qualified blacks nationwide. To me it just doesn't stand up, and to me, the constitutional requirement is full participation in the political process, not a guarantee of end result.

Now, we talk about proportional representation of a race, and you've said you're never going to grant that. I once went out to Cincinnati and talked to Mayor Seasongood for half a day trying to understand proportional representation. I never did.

QUESTION: You have to run under it to understand it.

MR. RHYNE: I suppose that you did. But all this thousand over ten and all that kind of stuff kind of left me.

So I conclude by simply saying that this case is enormously important not just to Mobile, but to the 67 percent of cities throughout the Nation that elect at large. Look at the New England town meeting.

QUESTION: Mr. Rhyne, before you conclude, earlier in your argument you suggested that the people whose intent would be most relevant would be the intent of the three commissioners.

MR. RHYNE: That's right.

QUESTION: How do you read the District Court findings and the Court of Appeals opinion? Whose intent do you think those courts were talking about? The opinions are a little bit unclear to me.

MR. RHYNE: They were talking about the intent of the legislature.

QUESTION: You think it's definitely the intent of the legislature?

MR. RHYNE: Oh, yes. They pinned everything on the intent of the legislature.

QUESTION: Because some of the material under the Zimmer factors wouldn't really bear on the intent of the legislature very much, and they seem to rely on those factors.

MR. RHYNE: Well, I haven't said anything about some of the Zimmer factors, the service factors. There are other remedies for that, and I just don't think they belong in a voting rights case, and so I haven't gone into that.

But there is no question but what both courts looked to the intent of the legislature, not the intent of these appellants, because if you look to the intent of the three defendants here, it's overwhelmingly in favor of the blacks. There's nothing on the other side.

QUESTION: Mr. Rhyne, before you sit down, you have indicated in your oral argument and also I think in your brief that it's your position that only the Fourteenth Amendment is involved in this case, and only the Equal Protection Clause of the Fourteenth Amendment.

MR. RHYNE: Yes.

QUESTION: Your brothers talk about the Voting Rights Act of 1965 as well as the Fifteenth Amendment, in addition to the Fourteenth Amendment. I gather you think they are --

MR. RHYNE: Well, with respect to the Voting Rights Act, I think that there has been no change here, and the footnote in Circuit Court of Appeals, Footnote 14, where they say it's problematic, they've never heard of it being applied this way in a dilution case, I don't believe the Voting Rights Act has any application whatever.

QUESTION: Was that included as a ground of the cause of action in the complaint?

MR. RHYNE: It was, and if they didn't like the way it was ruled on there, they could have appealed and didn't, so I don't think it's before this Court.

QUESTION: How about the Fifteenth Amendment?

MR. RHYNE: The Fifteenth Amendment, the District Court really didn't say anything about the Court of Appeals, said it required intent, so they really brought it down to about the same thing as the Fourteenth Amendment. And again, they didn't appeal from that ruling, so I don't think it's before the Court.

QUESTION: If the judgment can be supported on the basis of either the statute or the Fifteenth Amendment, I suppose they are entitled to support it.

MR. RHYNE: Well, I think that --

QUESTION: On either of those grounds.

MR. RHYNE: My answer would be that it cannot be on the facts in this case.

QUESTION: The decision of the District Court of Appeals, as you understand them, were grounded on the Equal Protection Clause of the Fourteenth Amendment?

MR. RHYNE: That's right, entirely.

MR. CHIEF JUSTICE BURGER: Mr. Blacksher.

ORAL ARGUMENT OF JAMES U. BLACKSHER, ESQ., ON BEHALF OF THE APPELLEES, WILEY L. BOLDEN ET AL.

MR. BLACKSHER: Mr. Chief Justice, may it please the Court, there are really only two issues that this Court must address in this case. The first is whether the case should be decided on the basis of the statute, the Voting Rights Act, or whether it should be decided on the basis of the Constitution. And the second issue is whether this Court will affirm and leave undisturbed the findings of two Courts below that the at-large election system in Mobile, Alabama, is maintained for invidiously discriminatory reasons.

We believe that, particularly in light of decisions of this Court in the last term, Cannon v. University of Chicago in particular, that the conclusion that there is a private cause of action under Section 2 of the Voting Rights Act is inescapable.

Under the factors of Court v. Asha, there is virtually no difference between the application of that case to Section 2 of the Voting Rights Act and Title 9 of the Education Amendments. That has been briefed and I will not go into it in further detail.

With respect to the findings of fact that there is an invidious purpose in the maintenance of this election system, we believe, as we have said in the supplemental brief, that Columbus and Dayton and indeed, Personnel Administrator of Massachusetts v. Feeney, virtually require this Court, following the same principles, to affirm the findings of the District Court and the Court of Appeals that the at-large election system first put into effect in 1911 has not been changed, notwithstanding attempts to do so, because of, not in spite of but because of, the knowledge that the at-large system prevents blacks from having their electoral choices registered in the election process.

Now, with respect to the remedy --

QUESTION: Mr. Blacksher, before you get to remedy, whose intent are we talking about?

MR. BLACKSHER: We are talking about the legislators' intent. We believe, if we correctly read Washington v. Davis and Arlington v. Metropolitan Housing Authority, if we correctly read those cases, we are talking about the lawmakers' intent. If we are investigating the question of invidious purpose behind particular legislation.

If we are talking about the intent of the people who operate the statute, then we've got what I suppose would be a Yiquo v. Hopkins type of case, in which case we would shift our gaze and scrutiny to the actions of the people who were actually operating the election system.

QUESTION: Mr. Blacksher, forgive me if I have interrupted your answer to Justice Stevens' question. I wasn't sure whether you were finished or not.

If you are right that the judgment should be affirmed here because blacks are not being permitted to have their impact felt in the electoral process, how far out can that line of reasoning be extended under your theory? How many other groups can claim that they were discriminated against by the State Legislature because the State Legislature just didn't happen to like that particular group? I mean Catholics, Jews?

MR. BLACKSHER: I think, Mr. Justice Rehnquist, that the question has to be answered in the context of the Equal Protection Clause of the Fourteenth Amendment. And this Court first must look to the question whether or not the judgments below must be sustained on the basis of the Voting Rights Act, which specifically addresses race, or the Fifteenth Amendment in the cases decided under it.

I believe that for the purposes of this case it is important to recall that the dilution principle did not arrive constitutionally from the principal of one person, one vote. Racial, the abridgement of voting rights on the basis of race did not derive from the Fourteenth Amendment principles of a full and effective vote in one person, one vote.

QUESTION: Where did it derive from?

MR. BLACKSHER: It derived from the Constitution of the United States, the Fifteenth Amendment and the statutes enacted under it.

What I wanted to point out was that in Reynolds v. Sims, this Court had to look to the Fifteenth Amendment and to the cases decided under it, specifically Lane v. Williams, Wilson, Gomillion v. Lightfoot, Brown v. the Board, to find in the Equal Protection Clause a principle that says that there is a full and effective vote for other classes of people. And it was on the basis of that analogy or that juxtaposition of the Fifteenth Amendment to the Fourteenth that there was ever developed a one person, one vote principle.

In fact, I think it's interesting to note that the fundamental disagreement that Justice Stewart had with the Reynolds case all through the years has been that it was too simplistic. Sixth Grade arithmetic. And did not take into account the realities of the political process to which the Constitution must address itself.

For example, and I quote here, if the Court will indulge me momentarily, from Justice Stewart's dissent in Lucas v. the Colorado Assembly:

"I could not join in the fabrication of a constitutional mandate which imports and forever freezes one theory of political thought into our Constitution and denies to every State any opportunity for enlightened and progressive innovation in the design of its democratic institutions so as to accommodate within a system of representative government the interests and aspirations of diverse groups of people without subjecting any group or class to absolute domination by geographically concentrated or highly organized majority."

QUESTION: Do you think that helps you?

MR. BLACKSHER: I believe it does, Mr. Justice Stewart, because --

QUESTION: Rather, an expression of unwillingness to join in forcing a State to do anything, isn't it?

MR. BLACKSHER: I confess that in that particular decision, your attention was directed to the prerogatives of the State legislature, not to what the Constitution requires.

QUESTION: Well, I said the Constitution didn't require that.

MR. BLACKSHER: You said the Constitution did not require the imposition of strict population, one person --

QUESTION: You think it follows that the Constitution does require something else?

MR. BLACKSHER: I believe the Constitution does require that the right of persons to vote not be abridged, on the basis of race. That much we know.

QUESTION: What part of the Constitution are you relying on when you say that?

MR. BLACKSHER: The Fifteenth Amendment.

QUESTION: This case was decided on the basis of the Fourteenth Amendment, wasn't it?

MR. BLACKSHER: This case was decided on the basis of the Fourteenth and the Fifteenth Amendments in the judgment of the Court of Appeals below, and we relied from the beginning on the Voting Rights Act which was discussed earlier as another statute of as the first cause of action that the Court ought to approach, which of course is decided under the enforcement provision of the Fifteenth Amendment.

QUESTION: Well, the Voting Rights Act, that is the section with which this Court has dealt primarily has to do with a change in the method in some scheme or device, or some change in the method of election.

MR. BLACKSHER: [ILLEGIBLE WORDS]

MR. BLACKSHER: That is Section 5 of the Act.

QUESTION: And you rely on Section 2, is it?

MR. BLACKSHER: We rely on Section 2, which is the general provision of the Voting Rights Act which extends substantive rights to voters.

QUESTION: But doesn't purport to confer any private cause of action, does it?

MR. BLACKSHER: We believe that it does.

QUESTION: But it doesn't explicitly do so, does it?

MR. BLACKSHER: It does not explicitly do so any more than Title 9 of the education amendments did. But all of the elements including an expression of understanding on the part of the Congress that it does confer a private cause of action on private individuals, as expressed in debates on the Floor, as expressed in the enactment of an attorney's fee provision.

QUESTION: The District Court and the Court of Appeals didn't rely on the Voting Rights Act, did it?

MR. BLACKSHER: In its motion to dismiss early in the case, it held that we did have a cause of action. When it wrote, at the end of the case, it did not even address the Voting Rights Act issue.

QUESTION: And the Court of Appeals mentioned it in a footnote, I think.

MR. BLACKSHER: In a footnote it said, we're going to have to reach the constitutional issue anyway because we've got Nevett v. Sides with us today, and so we're not going to go into what we see as the knotty question of whether there's a private cause of action --

QUESTION: So if we agree that was a knotty question, I suppose it would be our duty to remand it to the Court of Appeals if we thought that was a dispositive?

MR. BLACKSHER: That is a possibility. In the Beaser case last term, the possibility of remanding it was rejected and the Court went ahead and reached the statutory issue first at this juncture, and we believe that since what we are talking about is not a review of the factual circumstances in light of the statutory standards, it makes little sense for this Court to remand, which is essentially a legal question.

QUESTION: But in any event, Mr. Blacksher, when I interrupted you with my question, you were relying on the Constitution, and it's the Fifteenth Amendment, not the Fourteenth, upon which you rely? Reynolds v. Sims and it's all those related oases that involve the Fourteenth Amendment.

MR. BLACKSHER: I was responding to Justice Rehnquist in this vein: We have understood --

QUESTION: -- and that was a Fourteenth Amendment case?

MR. BLACKSHER: It was, and we rely on the Fourteenth Amendment as well as the Fifteenth Amendment and the Voting Rights Act.

QUESTION: But what result do you get in reliance on the amendments you've recited to Justice Stewart and the statutes in respect to -- my question is to who, other than blacks, can make this same claim, that although they're allowed to vote, their representation is diluted because of the way the districting goes, even though one man, one vote is complied with?

I take it from your referral to Yiquo that Asian Americans could rely on it.

MR. BLACKSHER: We certainly believe they could, if they can show that they've been treated the way the black folks have been treated in Mobile.

QUESTION: And that's a statutory showing?

MR. BLACKSHER: That would be our understanding of the Reynolds principle under the Fourteenth Amendment. But the point I was trying to make, and I confess I got into it a little bit obliquely, is this:

We understand the argument of the appellants in this case to be that if this Court determines that the election system in Mobile satisfies the one person, one vote principle, you ought to let it alone, that there ought not be any further Federal inquiry or intervention into the actual workings of the political process to determine whether or not blacks' rights are nevertheless being abridged. And I am simply pointing out that that's letting the tail wag the constitutional dog; that if there is a one person, one vote principle, it is because the Constitution spoke first to the equal rights and to the voting rights of black people. And whatever rights other groups may have under the Fourteenth Amendment principles developed under Reynolds, surely the important rights of blacks which the Civil War Amendment was designed to protect cannot be forgotten in the shuffle.

QUESTION: Do you think those rights are denied when you have an at-large election for the governor of the State of Alabama, for example?

MR. BLACKSHER: No, sir, because the governor is one office and it is not a representative office in the nature of a legislature, for one --

QUESTION: Well, these people have legislative duties, but they also have executive and administrative duties, as I understand it. This is not a pure legislature; this is not representative democracy.

MR. BLACKSHER: Mr. Justice Stewart, we are not attacking majority rule. We are simply seeking on behalf of the black people of Mobile the opportunity to participate --

QUESTION: How about in the State of Alabama generally, when they elect the governor?

MR. BLACKSHER: I beg your pardon, sir?

QUESTION: What proportion of the State of Alabama are Negro voters?

MR. BLACKSHER: Approximately 30 percent or 35 percent.

QUESTION: Has there ever been a Negro governor of Alabama?

MR. BLACKSHER: There has never been a black governor.

QUESTION: Wouldn't the same constitutional claim be assertable in that situation?

MR. BLACKSHER: We say it does not. As I say, it has to do with the nature of the body that we're talking about. Where more than one person is elected for the purpose of representing diverse interests in the community, so use your language, there would be no need to have three commissioners for the city commission.

QUESTION: Well, each has a different set of duties, doesn't he? Isn't one finance and the other safety, or something or the other?

MR. BLACKSHER: He does by virtue of statute. At one time, before 1965, there was not a statutory requirement that they divide up those duties. That was something that was put into the law in 1965. It's something, by the way, that the 1979 bill that Mr. Rhyne was talking about would have taken out. It would have allowed the --

QUESTION: It is true now, isn't it?

MR. BLACKSHER: It is true now.

QUESTION: And he's the executive of the City of Mobile?

MR. BLACKSHER: That's correct.

QUESTION: Who is? That's a question.

MR. BLACKSHER: The three commissioners and the mayor. The --

QUESTION: That's what I thought.

MR. BLACKSHER: -- mayor is the nominal chief executive of the city, and that's a rotating position among the three commissioners.

QUESTION: But the three commissioners have the executive power, do they not?

MR. BLACKSHER: They have the executive power, they have the legislative power, they have the administrative power, and to some extent the judicial power, although we have a municipal court that exercises most of the judicial power of the city.

QUESTION: How do you distinguish the executive functions of the commissioners, and particularly of the one who is the mayor, and the executive functions of the governor of the State?

MR. BLACKSHER: I don't think there is any need to distinguish those executive functions, Mr. Chief Justice Burger. I believe that, with respect to the executive functions, there's no reason to say that blacks must have an equal opportunity to elect a person in every executive office or every executive department. What they are entitled to is a right to share fairly and effectively in the administrative and legislative group determinations that government carries out in Mobile.

I would like to point out --

QUESTION: What percentage -- does this record show what percentage of the Negro voters actually vote?

MR. BLACKSHER: The latest turnout figures that we were able to come up with would indicate that black voter registration was around 65 percent and that black turnout was something like -- well, is about the same as whites in elections where there were black candidates and less than whites, and when it was a good as the white turnout it was around 36 to 40 percent.

QUESTION: But if all of the Negroes registered and all of them voted, isn't it likely that they could on this record elect at least one commissioner?

MR. BLACKSHER: Not in this case. That was a fact that the court found for the plaintiffs.

QUESTION: I know they found it, but did they find it with respect to that proposition that if every Negro eligible to register did register and every registered Negro voter Negro voter voted, did they make a finding on that?

MR. BLACKSHER: Although it was not cast in those terms, the court's language can be read to include that implication which was discussed during the trial. I think the court says there is no reasonable opportunity for blacks to have their choices elected in the at-large system. It is not necessary, however, and the court did not rule --

QUESTION: Well, does that finding by inference that you suggest stand up under a mathematical analysis?

MR. BLACKSHER: It has to. Blacks are 35 percent of the population of Mobile. They are less than that of the voting age population of Mobile. I think it is closer to 30 percent or 32 percent. And if they were registered at the same rate as whites, they would still be a political minority in the community by a substantial margin. They are not close to being a majority.

QUESTION: How about the Catholics in Mobile, is there anything in this record to show how many there are?

MR. BLACKSHER: There was plenty of evidence in the record to show that there was not polarization of electoral processes along religious lines or along ethnic lines in Mobile, Alabama, that the only discernible polarization from a social standpoint was along the lines of race.

QUESTION: Mr. Blacksher, if we just for the moment confine ourselves to the Fourteenth Amendment again, I understand your separate argument on the Voting Rights Act and the Fifteenth Amendment. I would like to pursue the thought Mr. Justice Rehnquist and I suggested earlier about -- you would say the same theory would apply to Catholics, a religious or an ethnic group as well as to blacks. What about a political group such as Republicans?

MR. BLACKSHER: I was asked that question I believe at the first argument, Mr. Justice Stevens, and I replied that it would be the same. I believe that political groups probably would be protected, although I think there is a difference in that -- as I have said before, I think politics is the vehicle or the forum through which we operate the political process, that it is a volitional choice which party you are in, and that may cause some differences, differences which I simply have not explored and which I don't think the Court needs to at this point, certainly --

QUESTION: Well, do you think if a city has got -- if the Republicans and the Democrats are segregated by area in a city, do you think a city may draw their electoral districts based on those lines so as clearly predetermine who is going to win?

MR. BLACKSHER: I believe that a city can draw their district lines any way that they fairly choose so long as it cannot be demonstrated that the particular ethnic or political group you are talking about has been systematically excluded from the particular process.

QUESTION: Let's assume that there has never been a Republican elected in Mobile in history. I suppose that is true, isn't it?

MR. BLACKSHER: Oh, no, Mobile is growing more Republican.

QUESTION: Let's suppose that it had been, a history like that, and there was proof that the at-large system was maintained to maintain the Democratic majority and Democratic control. Now, under the Fourteenth Amendment, you would say you would come out the same way here?

MR. BLACKSHER: I believe that it is possible to if you can show --

QUESTION: I know it is possible, but how about you?

MR. BLACKSHER: Well, I believe that we have to refer back to White v. Regester for the realm of possibilities.

QUESTION: Well, would you be making this same argument here or wouldn't you?

MR. BLACKSHER: As I just said, I may or I may not. I don't know whether the difference in political concerns makes the kind of difference that distinguishes from ethnic or of religious or in this case racial classifications, and I am just not prepared to take a final position on that.

QUESTION: Well, it depends a lot I suppose on -- whether you are not depends on how strong your Fourteenth Amendment argument is as distinguished from your Fifteenth and your Voting Rights Act.

MR. BLACKSHER: Well, the thrust of my argument today has been that I think that the Voting Rights Act and Fifteenth Amendment arguments are clearly the strongest because of their constitutional mandate, because we are not dealing with a political theory that we are made out of whole cloth, we are dealing with constitutional commands.

QUESTION: And also I suppose in the Voting Rights Act because you claim it covers effect as well as purpose.

MR. BLACKSHER: We don't think you have to reach that question if you affirm the findings of purpose.

QUESTION: I know, but you wouldn't need to affirm that, you could assume it if you take the Voting Rights Act.

MR. BLACKSHER: We assume what, may it please the Court?

QUESTION: That there is purpose rather than effect.

MR. BLACKSHER: We do not assume that there is purpose rather than effect. We think we have proved it.

QUESTION: I know you do, but if we weren't convinced on purpose, you would say, well, nevertheless there is effect.

MR. BLACKSHER: We would.

QUESTION: Yes.

MR. BLACKSHER: I would like to leave by referring again to White v. Regester because the facts in this case were so much stronger than those in White with respect to showing that there was a systematic denial and abridgement and submergence of the black voting rights interests in Mobile, Alabama than there were in Dallas and --

QUESTION: Didn't White v. Regester involve legislative districts, representative democracy?

MR. BLACKSHER: The state

QUESTION: Not the executive and legislative and administrative government of a municipality, did they?

MR. BLACKSHER: But the principle of White --

QUESTION: Isn't that one of the issues here suggested by Mr. Justice Rehnquist's concurring opinion in Wise v. Lipscomb?

MR. BLACKSHER: That's correct. We --

QUESTION: You haven't talked about that at all.

MR. BLACKSHER: I would mention it. I would say that I think that the issue is foreclosed by some earlier opinions. I think Allen v. State Board of Elections, Perkins v. Matthews, City of Petersberg, City of Richmond, Beer v. United States, United States v. Sheffield --

QUESTION: You are mixing up a lot of -- Beer was a Voting Rights Act case, not a constitutional case.

MR. BLACKSHER: All of the cases I cited were Voting Rights Cases --

QUESTION: All of those and they came out of the statute.

MR. BLACKSHER. Which recognize that dilution was a wrong for which there was a federal remedy of --

QUESTION: Because the statute covers political subdivisions.

MR. BLACKSHER: Avery v. Midland County extended the one person-one vote principle to the local level --

QUESTION: But that was a constitutional case.

MR. BLACKSHER: That's correct, and that was what Justice Stewart was I think getting to --

QUESTION: That's right.

MR. BLACKSHER: -- where is the constitutional precedent for extending dilution or White v. Regester to the local level. And that gets back I guess to what I was saying earlier. How can you extend one person-one vote to the local level and say that it is a more fundamental principle than the right of blacks not to have their voting rights abridged, which is what the constitutional mandate is in the first place.

Thank you.

MR. CHIEF JUSTICE BURGER: Very well.

Mr. Turner.

ORAL ARGUMENT OF JAMES P. TURNER. ESQ., AS AMICUS CURIAE, SUPPORTING APPELLEES

MR. TURNER: Mr. Chief Justice, and may it please the Court --

QUESTION: Mr. Turner, before you commence, I would be interested in knowing what groups you think are encompassed by the term "race" in the Fifteenth Amendment.

MR. TURNER: Well, that is a question on which the Court has thus far given us very little guidance; certainly the purpose, the original purpose of the Fifteenth Amendment was to secure the franchise for newly freed black citizens.

QUESTION: Clearly.

MR. TURNER: So that is clearly covered. It is also on occasion be applied in other circumstances to other ethnic minorities.

QUESTION: Does it include Mexican-Americans?

MR. TURNER: I would, yes, sir.

QUESTION: And I think your colleague would include Orientals. What about Indians?

MR. TURNER: I think they would be covered as well, sir.

QUESTION: And Puerto Ricans?

MR. TURNER: Yes, sir.

QUESTION: What about Socialists?

MR. TURNER: I have no opinion about Socialists, Mr. Justice Powell.

QUESTION: Well, would it, Mr. Turner, include any national group that was the subject of or object of determination of discrimination?

MR. TURNER: I really think, Mr. Justice Rehnquist, that we ought to approach questions under the Fifteenth Amendment as we do in other areas on a case-by-case basis. And what we have here is a case involving blacks. What we have in the United Jewish organization is a case involving Jews and in each one you are going to be able to make an assessment of the factual situation, you are going to be able to compare the legislative history and the constitutional history and make a coherent judgment.

QUESTION: But you had no trouble saying that Hispanic Americans would be included.

MR. TURNER: None at all.

QUESTION: What leads you to be able to answer that question so easily and yet shy away from any expansion into other national origin areas?

MR. TURNER: Because I think that one of the touchstones that I get out of this Court's opinions on the Fifteenth Amendment is that it is directed towards the protection of the suffrage rights of traditionally discriminated against groups, and I think that includes Hispanics, and includes Puerto Ricans, it may in cases include Asian-Americans.

QUESTION: Could it ever include whites?

MR. TURNER: Surely, as the Court at least in majority seemed to say in United Jewish Organization.

QUESTION: How about Mormans?

MR. TURNER: That would be a religious group and I know of no basis under the Fifteenth Amendment directly to cover Mormans, although if there were compelling circumstances and they were a discriminated against group, it strikes me that the Court might well entertain the argument although I don't know how it would come out.

The one underlying concern that I think many people have about this case is its scope. There are lots of large elections in this country, there are lots of different minorities, as we have just gone through, and the question I think suggests itself of whether by affirming the decisions below, the Court would be taking a giant step towards requiring constitutional reform of hundreds of cities.

Now, if I make no other point today, I want to argue that on this record the electoral practices in Mobile are in a special category. These cases do not present the normal, operation of your regular garden variety at-large election system that all of us are familiar with and which have produced competent governments across the land.

QUESTION: Mr. Turner, you speak for the United States here, for the Department of Justice. Now, over recent years the federal government has engaged in a great many activities, legislative, executive and otherwise to insure the rights of minorities to have housing and in an integrated way with all other people. Is that not right?

MR. TURNER: We have made in my department every effort to enforce the Fair Housing Act which so far we have regarded as a freedom of choice statute.

QUESTION: Now if you succeed in that enterprise widely, then district elections won't help very much, will they?

MR. BLACKSHER: Not if we succeed at the measure of success that is not so great at this point or foreseeable --

QUESTION: Well, not that it is right now, but if you succeed, if your objective is a sound objective, and Congress has decided that it is, how do you reconcile that with the insistence on a program that will furnish an incentive for people of a particular category to live in enclaves, whether they be Indians, Puerto Ricans, Orientals, Spanish surnamed people, whatever? How do you reconcile those two things?

MR. TURNER: I think that as long as you have a situation as in Mobile, where at-large systems are used racially to dilute minority votes, there will be no progress away from block voting. And when minorities are able to elect members of the government, our experience is that the stigma that once attached to race quickly dissolves. Birmingham is an example, as Mr. Rhyne mentioned. Tomorrow a black councilman, not a private citizen but a councilman is in the runoff for mayor. While there is no record of the facts there, the participation -- his particulation in local government certainly was of assistance in getting him into the runoff.

So I think at this stage in the history, where there are ghettos and where there are separate residences, and the record here shows that you couldn't divide Mobile into three districts without one of them being majority black, it is that kind of housing segregation we are talking about, and no effort by my department to enforce the Fair Housing Act is going to change that in the next few years.

So Mobile it seems to me is not a situation like Marion County, Indiana in the Chavis case where blacks just got on the wrong side in elections and therefore lost. Here the blacks have formed a political group, the Nonpartisan Voters League, and repeatedly have attempted to form coalitions with like-minded white voters, but it has been repeatedly unsuccessful.

My time is very short, but I would like to point out a couple of things to you. Mr. Rhyne has spoken about the powers of the league's endorsement. This endorsement is made on a pink sample ballot and it is true that many candidates seek this support, but it is not described how the league has to withhold release of that endorsement, keep it secret until sometimes within hours of the poll operations. State Senator Eddington, a white Senator, testified that he has twenty years experience in Mobile politics. He says it has to be held up before the election because those who don't get the endorsement want to get copies and spread them out to other areas in Mobile County to use against the candidates that were endorsed. The result is that black supported candidates frequently get into the runoff --

QUESTION: Is there anything in the state law or federal law that would prohibit that process of circulating it in other districts?

MR. TURNER: No. What we are trying to find out, it seems to me, is whether Mobile is a situation like Marion County, Indiana, where blacks were Democrats end they lost elections and they came to this Court complaining that they lost more elections than they should and they didn't have enough representation and the Court said that's tough because you've made political choices and you had a fair chance.

Now, if Mobile was like that, we wouldn't be here, but the two courts below have said it isn't like that and I am trying to point out the basis for their reasoning. So when you get to the runoff election and there is a black supported candidate whose pick endorsement has been made known now, there is no way to hide it any longer and that is where you get what one expert called the "kiss of death." The record has several examples, but let me just give you one.

If you will turn to page 593 in Volume II of the appendix in the Mobile case, that is No. 77-1844 -- the numbers are at the bottom --

QUESTION: Page 590 --

MR. TURNER: Page 593, Your Honor, Volume II. The numbers are at the bottom.

QUESTION: Volume II seems to begin with page 821.

MR. TURNER: The numbers are at the bottom, Your Honor.

QUESTION: Oh.

MR. TURNER: There was a Mobile person, Mrs. Gerre Koffler, a white resident, who decided to run for the school board in 1972 because she wanted to see if there was some way we could make the April Supreme Court decision work in Mobile, that is your decision in Davis. She obtained the league's endorsement, she got into the runoff, and if you look at page 593 you will see the kind of ad that came out after the endorsement was made public. It shows a picture of a black leader, John LaFlore, it shows the white candidate, it alleges such scurrilous things as "she has entertained blacks in her home, she has been seen and photographed in company of blacks," but it also shows the exact vote she got in each black ward --

QUESTION: I gather Gerre Koffler is a female, you call her she.

MR. TURNER: Yes, Your Honor.

QUESTION: Has there ever been a woman commissioner?

MR. TURNER: I am unaware of that, Your Honor. I am sure local counsel would be able to enlighten you on that.

QUESTION: Are woman a minority or a majority of voters in Mobile?

MR. TURNER: I'm not sure whether they are a majority or a minority. I believe by most accounts they are a slight preponderance.

QUESTION: Of the population generally?

MR. TURNER: Yes, sir.

QUESTION: But you don't know about the voters in Mobile?

MR. TURNER: Right, Your Honor.

QUESTION: District elections wouldn't help that situation, would it? Women don't tend to live in particular enclaves or ghettos.

MR. TURNER: Not in my experience.

If you turn to page 595, you will see a similar ad run in the same runoff election against another white candidate whose black support had been revealed by the primary election, and it is the same story, the "kiss of death" is right there. So it is not just this kind of racial voting. There is more in this record. There are other aspect in Mobile that are unique, is the at-large elected -- in one at-large legislative election, white Democrats and Republicans agreed --

QUESTION: May I ask you a question that always puzzles me in these cases. I don't know who sponsored these ads, but no doubt a group of people who were against having blacks be elected to public office. Whose intent is really most important here? I suppose you can always find in a community some very strong anti-black sentiment, maybe in the legislature, maybe in the city council. What group of people if any should we focus on in the intent issue?

MR. TURNER: Well, it is a very troublesome thing, and I think it may depend on which amendment you want to talk about. Intent is very nebulous, especially in a case like this.

QUESTION: What do you understand it to mean or what do you understand the court below to have held on the intent issue?

MR. TURNER: I understand that as in Norwood v. Harrison, where Mississippi since 1940 had maintained a textbook program and then when desegregation of schools came, that program mushroomed to provide books to the private schools. It was the evolution, the changing circumstances that eroded what had been a perfectly proper state purpose into an illegitimate unconstitutional one by the decision of this Court.

So if you are talking about that kind of change, that kind of evolutionary change, it is very hard to --

QUESTION: Here we are talking about a refusal to make a chance.

MR. TURNER: Right.

QUESTION: And in this kind of case, whose intent should we look at?

MR. TURNER: Well, it is the same thing in Norwood, I submit. But here if you go in the Fourteenth Amendment, I say you look at the legislative intent.

QUESTION: The state legislature?

MR. TURNER: The state legislature.

QUESTION: Then each of these pamphlets here are not relevant on that intent issue.

MR. TURNER: No. Now, if --

QUESTION: Does it have any relevance at all to the case?

MR. TURNER: If you go on the Fifteenth Amendment in the case, Your Honor, we have outlined in the brief how this Court's precedents, especially Terry v. Adams, have held that by a state adopting private purposeful discrimination --

QUESTION: Let me put the question this way: If it is the legislative intent that is controlling, suppose everybody in Mobile wanted to have blacks fairly represented into three districts without one off them being majority black, it is that kind of housing segregation we are talking about, and no effort by my department to enforce the Fair Housing Act is going to change that in the next few years.

My time is very short, but I would like to point out a couple of things to you. Mr. Rhyne has spoken about the powers of the league's endorsement. This endorsement is made on a pink sample ballot and it is true that many candidates seek this support, but it is not described how the league has to withhold release of that endorsement, keep it secret until sometimes within hours of the poll operations. State Senator Eddington, a white Senator, testified that he has twenty years experience in Mobile politics. He says it has to be held up before the election because those who don't get the endorsement want to get copies and spread them out to other areas in Mobile County to use against the candidates that were endorsed. The and was giving them excellent services and were promptly prosecuting people who burned crosses and everything was going along fine, if you had a majority of the state legislature who said we don't want any blacks in the government in Mobile, would it be the same case?

MR. TURNER: I'm not sure, certainly not under the Fifteenth Amendment because it is our submission that under the Fifteenth Amendment that there is certainly state involvement in running elections and in running at-large elections in Mobile, and there certainly is private discrimination, just like there was in the Jay Bird Club, and by the state magnifying and making use and making effective that private discrimination, it is the same principle as Terry v. Adams that would apply. So you use the private discrimination that is implemented by State procedures.

Thank you.

MR. CHIEF JUSTICE BURGER: Very well, Mr. Turner.

Mr. Rhyne.

ORAL ARGUMENT OF CHARLES S. RHYNE, ESQ., ON BEHALF OF APPELLANTS (MOBILE) -- REBUTTAL

MR. RHYNE: If the Court please, I only have two comments and then, unless the Court has some questions, I have no further argument.

I am really amazed of the government of the United States trying to use a school board race exhibit on 593, a county commission race on 595 against the city.

I pointed out in my argument that the two are entirely different, and I think that this shows how weak their case is if they would stoop that low.

Now, I would be glad to answer any questions the Court has, but my time is just about up.

QUESTION: Well, those exhibits, Mr. Rhyne, do show that apparently there was some evidence that there was black voting on racial lines there, doesn't it?

MR. RHYNE: Well --

QUESTION: I suppose if there was black voting on the school board or on the county election, it is reasonable to infer that there would be black voting on the other kinds of --

MR. RHYNE: But the school board is county-wide and the county is county-wide. It is an entirely different constituency, as Mr. Alexander pointed out in the record, from the constituency in the city. So to try to --

QUESTION: Well, there is some overlap, isn't there?

MR. RHYNE: Oh, there is some overlap, sure. I wouldn't deny that for one minute.

QUESTION: Do you challenge the District Court finding that there was racial block voting within the jurisdiction we are talking about?

MR. RHYNE: I would say I do. It is lessening, according to expert Boyles and that more and more throughout the South as well as in Mobile race is not a factor in all elections.

QUESTION: Whoever put out these pamphlets apparently thought it was.

MR. RHYNE: Well, I think that those pamphlets were used in a different race for difference purposes and had nothing to do with the city.

Thank you.

MR. CHIEF JUSTICE BURGER: Very well, Mr. Rhyne.

Mr. Allen, you may proceed whenever you're ready.

ORAL ARGUMENT OF WILLIAM H. ALLEN, ESQ., ON BEHALF OF APPELLANTS WILLIAMS ET AL.

MR. ALLEN: Mr. Chief Justice, and may it please the Court:

This case concerns the legality of the way the commissioners, the school commissioners of Mobile County are elected.

Mobile County encompasses the City of Mobile and a rather large surrounding area which includes some other smaller cities. Overall, the population of the county is divided racially in about the same proportions as the city. Blacks make up 32 percent of the county's population and I think 24 percent of its voters.

Mobile County's school system was the first to be established in Alabama in 1826, seven years after statehood. Since that time probably, and at least since 1836, when a new statute governing the school system was enacted, the members of the governing body of the school system have been elected from the county at large. The current statute under which they have been elected, it was enacted in 1919, provides for the at-large election of five commissioners. They are elected in partisan elections held in even numbered years for six-year staggered terms.

As a board, the commissioners are responsible for the overall direction and management of the Mobile County schools. They hire a superintendent who is responsible under their direction for the day-to-day management. Now, certain salient points appear from the findings below or the undisputed evidence of record concerning the school board's elections and their relation to the black population of the county.

First, the system of at-large elections for Mobile County school board members was not created for any racially discriminatory reasons. As I have already indicated system has deep roots in the history of Alabama and of Mobile in particular. It was first established in 1836, no later, at a time when blacks did not vote and the last reestablished in 1919 at a time when blacks were still effectively disfranchised.

Second, the second salient point is notwithstanding the history of racial discrimination in Alabama and Mobile, there are today no barriers, no barriers formal or informal to black participation in Mobile County's political process. Blacks are free to register and vote and they do vote nearly in proportion to their proportion of the voting age population. Their votes are sought for. The only significant candidate endorsing body that appears to operate county-wide in Mobile County is what you have heard about, that is the Nonpartisan Voters League.

QUESTION: Is that the same league that we heard about in the opening case?

MR. ALLEN: Yes, it operates in the county --

QUESTION: And city --

MR. ALLEN: -- and the city as well, yes.

QUESTION: It is not two different organizations.

MR. ALLEN: No, the same organization. They are predominantly black, true, and there is no comparable white group, no backstage or even front-stage slating organization of the kind that the Court may have been concerned with in some other cases, no slating really in that sense.

QUESTION: Is there anything in the record that shows who pays for all of this advertising of political stuff?

MR. ALLEN: I'm sorry, Your Honor?

QUESTION: Is there anything in the record that shows who pays for these advertisements and other things that normally help in political campaigns?

MR. ALLEN: There is not, Your Honor. One can infer that the advertisements were paid for by the candidate running against the candidate who is disfavored in those ads, if that is what Your Honor means.

QUESTION: No, I think I know enough about politics that money doesn't come out of the clear blue sky.

MR. ALLEN: There is no record evidence about the --

QUESTION: So I am still in the same place.

MR. ALLEN: Yes. In any event, in that regard, anyone is free to run for office and the fact is that a school board campaign does not cost very much. Up until very recently, the school board members have not been paid at all and they are still paid rather nominally. So a typical campaign budget runs no more than $2,000, $3,000 to $5,000, according to the record.

QUESTION: How many members of the school board?

MR. ALLEN: There are five members.

QUESTION: And are they elected to staggered terms?

MR. ALLEN: They are elected for six-year staggered terms, two, two, and one system.

QUESTION: Is it a per diem compensation they get or --

MR. ALLEN: It is a per meeting compensation.

QUESTION: Per meeting.

MR. ALLEN: Yes. Yes. Now, the third salient point -- and I have to acknowledge this for the record of this case, whatever may be the case in the city's case -- there does appear to be racial polarization in voting.

Four black candidates ran in the Democratic Primary for the school board between 1962 and 1974. Each of them reached the runoff election, although each was a first-time candidate for public office. Each was defeated in a runoff against a white opponent.

Now, on the basis substantially of what I have recited plus a few more rather tangential items, the District Court concluded that the at-large manner of electing Mobile County school commissioners violates the Fourteenth and perhaps the Fifteenth Amendments. The District Court made its analysis of this issue within the framework of the so-called Zimmer factors, factors that the Court of Appeals had professed to distill from this Court's opinions.

The Court of Appeals performed that distillation in a case called Zimmer v. McKeithen before Washington v. Davis was decided, and they were obviously -- the Zimmer factors were intended to measure the discriminatory effects of an at-large system.

The District Court's ultimate conclusion in this case was that the plaintiffs had met their burden by showing an aggregate of the factors catalogued in Zimmer. The Court of Appeals affirmed in a very short per curiam opinion without hearing argument and referring merely to a prior decision in the City of Mobile's case.

The District Court's remedy for the constitutional violation it found was to create five districts, two of which are preponderantly black in population. The Court of Appeals also affirmed this remedy, the judgment was not stayed, elections were held and the two predominantly black districts in 1978, the two black candidates were elected to the board and now sit.

I am not going to dwell this morning on the District Court's Zimmer analysis in what we conceive to be its flaws which are thoroughly explored in our briefs. If the plaintiffs continue to defend that analysis either as it was actually engaged in by the District Court or as it was transmuted by the Court of Appeals by other cases into the equivalent of a finding of purpose rather than effect, they do so I think very faintly at this stage.

What the plaintiffs essentially rely on in this Court is something different, a passage, one passage of the District Court's opinion that is wholly removed from the analysis on which it purported to base its opinion. That is a passage in which the court does indeed talk about a present purpose to discriminate. Now let me take up the District Court's opinion.

It first made findings of fact arranged under each of the Zimmer headings. These are at pages 9 to 22 of the appendix. And then it turned to the conclusions of law. The passage on which the plaintiffs rely appears in a section of the conclusions of law where the court was addressing itself for nine pages to the impact of Washington v. Davis in vote dilution cases. It asked whether Washington v. Davis was dispositive of this case so as to preclude application of the Zimmer factors.

Now, at page 34 it made a comment about a --

QUESTION: Page 34 of what?

MR. ALLEN: Page 34 of our appendix, 34a of the appendix.

QUESTION: Thank you.

MR. ALLEN: It talked about a present purpose to dilute the black vote. Now, I submit that that is not a findings of a present purpose to discriminate. The plaintiffs have tried to make of it a finding, have talked even about the two court rules and urged deference to that finding, but it isn't a finding, isn't even really a legal conclusion. It is sort of conjecture on the part of the District Court at the best and really more likely a statement of a discarded alternative legal theory for deciding the case. Because what the court finally says down near the bottom of page 34 is that more basic and fundamental than any of the above approaches is that, and then it goes on and I suggest says that Washington v. Davis established no new purpose test so far as voting dilution cases are concerned, and that was the answer to the question that had posed itself at the beginning of this part of its opinion and --

QUESTION: Mr. Allen, taking that page of the appendix to which you are addressing, the last sentence in the paragraph in the middle of the page, the court says there is a "current" condition of dilution of the black vote resulting from intentional state legislative inaction which is as effectual as the intentional state action referred to in Keyes.

QUESTION: May I interrupt to say I am lost. I have 34b but I --

MR. ALLEN: Of the appendix, I'm sorry, Your Honor, of the appendix.

QUESTION: 34a of the appendix?

MR. ALLEN: 34a of the appendix. I'm very sorry.

QUESTION: And it begins at the top of the page, "This is not to say," quoting?

MR. ALLEN: Yes.

QUESTION: All right.

MR. ALLEN: Yes, Your Honor.

QUESTION: All right. Thank you.

MR. ALLEN: Okay.

QUESTION: Wouldn't you at least concede that that is a finding of intentional state legislative inaction? You may feel that is not the same thing as intentional action.

MR. ALLEN: I suggest, Your Honor, the point I sought to make was that I do not consider that a -- I do consider it indeed a statement of whatever is said there. It is not I suggest a finding in any customary sense of that. He had made his findings of fact elsewhere and he really had not addressed himself at any length to what might underlie a finding of current intentional state inaction.

But I will go on and say that we can suppose that this passage really did mean to conclude far more than it seems to have on its face, that the at-large elections involves a present purpose to discriminate through state inaction.

Now, the further question is what record facts are there that might support such a conclusion. The court mentioned one specific fact on the preceding page, and there it said -- and these are its words approximately -- whenever a redistricting bill of any type is proposed by a member of the Mobile County legislative delegation, a major concern is centered around how many if any blacks would be elected. He does say that.

Now, the fact is that in spite of that concern, or perhaps even because of it, the legislature in 1975 did enact redistricting legislation for the Mobile County school system. That legislation was voided on the suit of the school board because of a defect in notice that rendered it invalid under the state constitution.

Now, the plaintiffs seek to make a great deal of this invalidation, and I think what they would have this Court rule is that the districting legislation and its invalidation somehow constitute evidence of a present purpose to discriminate. The least that can be said in response to that, Your Honors, is that the District Court did not so treat it and made no such finding. And I would suggest further that the federal judicial inquiry that might even yield such a finding would be an undertaking of extreme delicacy.

I submit that this Court should not be asked to make the sort of Judgment on the Alabama legislature that appellees state or imply on the basis of nothing more than what appears in this record. So when the specifics are out of the way that the District Court cited, and if we forget the 1975 enactment that on its face looks the other way, what we have at the very most, at the very most is state legislative inaction that maintains a non-racially motivated at-large voting system and an awareness on the part of at least some legislators of the disparate racial effects of that system.

Now, I submit that to make a finding or to draw a conclusion of a present purpose to discriminate on the basis of this perpetuation arguably of discriminatory effects through inaction is exactly what this Court rejected last term in Personnel Administrator v. Feeney, and indeed in the Feeney case there was more than mere inaction.

The Massachusetts Veterans Preference law had been amended from time to time and effectively reenacted, and the Court did not blink at saying that there must have been full awareness on the part of the general court that the legislation was keeping a disproportionate number of women out of the higher levels of the civil service, but that wasn't enough. That wasn't enough. To have made it enough would have undermined the rule of constitutional law with which the Court began its analysis in Feeney, and that rule stated, even in the paradigm case of race, that is what the Court said, even if a neutral law has a disproportionately adverse effect, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.

Now, let me stop there for a moment and just say a word about the Fifteenth Amendment. The Court of Appeals held in the companion cases -- one doesn't know what the court may have meant to hold in our case because its opinion is not at all revealing, but in the companion cases, the Court of Appeals held that the Fifteenth Amendment imposes the same purpose requirement, and we have urged in our briefs -- I will not expand upon the points now but I think they are adequately made there -- that the Court of Appeals was quite right that one does not escape the problem that is posed under the Fourteenth Amendment in this case by turning to the Fifteenth Amendment.

QUESTION: Assuming there were a private cause of action in the Voting Rights Act, what do you say about the Voting Rights Act?

MR. ALLEN: I was just about to turn to that, Your Honor, and I would say further two things under the Voting Rights Act. One, the argument that is made here is made most belatedly. To be sure, the Voting Rights Act has been in the case. Section 2 of the Voting Rights Act has been in the case from the beginning. It has never been suggested until we reached this Court that it might have a different content from the Fifteenth Amendment. And what the government says in its amicus brief about section 2 of the Voting Rights Act, it seems to me to capsule what it is and why it also does not offer a way out of what may be the problem posed by this case.

In a footnote on page 84 of its brief, the government says section 2 represents Congress' rearticulation of the Fifteenth Amendment, and that is what it amounts to. It is not section 5. It does not read the same way as section 5.

QUESTION: Yes, but the government doesn't think necessarily that purpose is essential in the Fifteenth Amendment.

MR. ALLEN: The government does --

QUESTION: So you are not really making much of a point.

MR. ALLEN: Oh, I understand that but independent of what the government says, we believe that the legislative history does indeed show that --

QUESTION: Let me go at this in two steps.

MR. ALLEN: Yes.

QUESTION: One, do you think the argument is available in this Court by an appellee that the Voting Rights Act is an issue here and should be disposed of first

MR. ALLEN: Yes.

QUESTION: -- and that the Voting Rights Act covers effect as well as purpose?

MR. ALLEN: I will answer the first part of the question. I say I think the issue is here. Whether the Court would wish to remand for development of the point is a separate subject.

QUESTION: So the issue of the Voting Rights Act is fairly here?

MR. ALLEN: Yes.

QUESTION: How about the issue of the Voting Rights Act covering effect as well as purpose?

MR. ALLEN: Do I think that is a legitimate issue here?

QUESTION: Yes.

MR. ALLEN: Yes, I think that is all the more reason for a remand were the Court not to think that on its face section 2 is a mere restatement of the Fifteenth Amendment, yes.

QUESTION: And do you think that, as you understand our cases, we should dealing with the Voting Rights Act first --

MR. ALLEN: I think that --

QUESTION: -- in any opinion that we write in this case at least either on the merits or at least put the issue aside?

MR. ALLEN: I think it would be fair to put the issue aside. I think it would also be fair -- I happen to believe on the merits that the Voting Act meaning issue is not a difficult one and that it does come down to meaning the same thing as whatever Your Honors think the Fifteenth Amendment means.

QUESTION: Is your response to Justice White's question predicated in any way on an assumption that there is or is not a private cause of action under --

MR. ALLEN: Well, if he asked me to make that assumption --

QUESTION: I'm sorry, I misunderstood.

MR. ALLEN: -- has to be hurdled in getting to section 2 of the Voting Rights Act, to be sure, and we have urged in our reply brief at some length why it should not be read as creating private cause of action. It has never been so read to this time that I am aware of.

Let me return to Feeney and make one final point in respect to that opinion as it bears on our case. The Court there spoke of the impact of veterans preference on women as essentially an unavoidable consequence of a legislative policy that has always been deemed to be legitimate.

So far as the legitimacy of state policy is concerned, if veterans preference is a legitimate legislative policy, then surely the policy of at-large municipal elections, the policy that antedates the Constitution still prevails in hundreds, even scores of communities throughout the country, is a legitimate policy.

And as for the inevitability of the adverse consequences of pursuing the policy, one can hope that the unfortunate consequences of at-large elections are not unavoidable or inevitable --

QUESTION: I take it it is pretty fairly your position that a municipal at-large election or a -- for the purposes of state legislatures, a county-wide at-large election or a multi-number district, electoral district for the election of, say, ten share representatives, neither of those arrangements at-large is shown to be unconstitutional if you have also a very clear proof of voting on racial lines.

MR. ALLEN: Even though one has that proof --

QUESTION: Even though -- let's say anybody in his right mind would say yes, there is pretty clearly racial lines --

MR. ALLEN. No --

QUESTION: Putting those two together, it doesn't equal --

MR. ALLEN: -- it does not add up to the constitutional or statutory violation on which this case is based. Yes, that is exactly our point, Your Honor. We believe that that is the beginning point of analysis. The problem arises when somebody gets exorcised and brings a lawsuit when he sees an at-large system of elections and what can be termed racially polarized or block voting. The inquiry proceeds from that point, the inquiry proceeds from that point, it doesn't end there, and our concern here is that we think the District Court essentially ended its inquiry there.

QUESTION: Let's proceed one step further beyond the assumptions Mr. Justice White made. Assume the record does demonstrate and there is an appropriate finding of a present intent to maintain the system in order to prevent black participation in the school board. Would that constitute a constitutional violation when the original law was lawful when adopted? What is your view on that?

MR. ALLEN: All I can say in answer to that, Your Honor, is that if there were indeed the basis for and the kind of finding that I would hope this Court would insist upon, the kind of record that I hope this Court would insist upon to find a present intent of a legislature, then I would have a hard time distinguishing that case from the case in which the statute in its inception was racially discriminatory.

MR. CHIEF JUSTICE: Thank you.

Mr. Schnapper, you may proceed.

ORAL ARGUMENT OF ERIC SCHNAPPER, ESQ., ON BEHALF OF APPELLEES BROWN ET AL.

MR. SCHNAPPER: Mr. Chief Justice and may it please the Court:

Before turning to the substantive issues presented by the case, I think it might be useful to lay out some of the procedural problems about the way the Court will choose to address the variety of issues presented here. Some of them have come up before and some of them have not.

One issue which Mr. Allen raised and which has been raised by earlier questions is whether or not to deal with the statutory question that is I think unquestionably presented by the case.

The Court has for many years maintained a policy which it has attempted to persuade the lower courts to follow of deciding statutory issues first and only reaching, constitutional issues if necessary.

As this case and Beazer and Bakke all illustrate the lower courts have not been assiduous in attending to that rule, and the question before the Court is how the Court is to act when the lower court has not followed your preferred procedure.

I think that there are three options, one of which should not be taken. The one that should not be taken is the option taken in Arlington Heights, which is to decide the constitutional question and remand for decision on the statutory question. As you may remember, after ruling for the defendants on the constitutional question in that case, or opinion which provoked some dissents and made a lot of law that may or may not have been necessary, on remand the Court of Appeals reached the statutory issue, ruled for the plaintiff, and this Court denied cert, So that entire opinion, with all it ramifications, and we deal with many of them today, was unnecessary.

I think that following that course would be unwise not only because it leads you into deciding unnecessary issues but because it doesn't -- I would lead the Courts of Appeals by example, and that was not the kind of example I think you wanted to give them. I think the two options you have are, first, and I think this is the proper option, to do what you did in Bakke, to decide the statutory issue first, reach the constitutional issue if necessary, or you could wipe the whole case out and send it back and tell the Court of Appeals to do it right the first time.

QUESTION: Of course, your first option which you say you prefer is going to lead to some undesirable practices, too, on the part of people who have lost on a constitutional question in a lower court because they can just look through the statute books and if they can find a statute that they say, gee, the others I might have won on this statute, therefore it was unnecessary to reach the constitutional question, they will have a built-in argument for at least a remand.

MR. SCHNAPPER: I think they've got to look through a different volume. They're got to look through the appendix and take a look at the complaint.

QUESTION: Yes.

MR. SCHNAPPER: If it is in the complaint, that is one thing. I would --

QUESTION: But under notice of pleading under the Federal Rules of Civil Procedure, you don't have to state the statute you rely on, all you have to do is plead alleged facts sufficient to support a claim for relief.

MR. SCHNAPPER: But the practice of this Court has generally not been to permit litigants to raise issues which in no way have been raised below. So I think it would be perfectly proper, and I think consistent with the past practices of the Court that if a litigant wanted to raise a statutory issue which had in no way been raised by the complaint or briefs below, to preclude them from doing that.

QUESTION: You don't go so far as to say that the parties must raise a possible statutory issue along with a constitutional issue?

MR. SCHNAPPER: I would say --

QUESTION: Suppose the parties constructed their case as a constitutional case, if they want to, can't they?

MR. SCHNAPPER: Well, I would think that would be terribly unwise and I --

QUESTION: Well, it may be unwise but they may. I suppose your answer might be that even if they do, perhaps here the court would have, if they come from federal courts, I suppose this Court would have the power to insert another issue into it, but you wouldn't say it was error for lower courts to decide the Constitutional issue if the parties had never raised anything but the constitutional issue.

MR. SCHNAPPER: I would say it was an error on the part of the Court of Appeals to have done that. I think it would have been entirely within the discretion of the court to refuse to entertain a new statutory claim in the first instance here. On the other hand, quite frankly, there have been cases where you have chosen to entertain new statutory issues for reasons having to do with subsequent developments and also some -- I wouldn't want to suggest that you lock yourself into a ritual that you will never do that. I think you ought to retain the power to go either way.

QUESTION: What if in Arlington Heights the defendants there had said we simply want a decision on the constitutional question, we are willing to assume the complaint states a claim for relief under the federal statute and all we want to litigate is the constitutional question, what should the District Court --

MR. SCHNAPPER: Then I would have denied cert, because it was a defendant's cert petition. They won below, and you can't file --

QUESTION: Well, what should the District Court have done in deciding the thing in the first instance?

MR. SCHNAPPER: Well, if the defendants had wanted to come in and concede the existence of a statutory claim and asked for a decision on the constitutional claim, I assume the District Court would have accepted their concession, ruled for the plaintiffs, and that would have been the end of it.

QUESTION: So it could not then go to the constitutional case?

MR. SCHNAPPER: Well, I can't imagine why a district judge facing a concession of liability under statute would decide a constitutional issue as well.

QUESTION: Well, what if the defendant said, let's assume for the sake of argument, we don't concede but we think the most important thing here is the constitutional question?

MR. SCHNAPPER: No district judge it seems to me would act properly to let the defendant control the order of decisions and to ignore the policies of this Court to decide statutory issues first.

QUESTION: I agree but I think there are a let of district judges that don't.

MR. SCHNAPPER: Well, I think there are, too, and there are some Courts of Appeals judges who don't and it is upon that point that I began my suggestion that you deal with this the way you wanted the Court of Appeals and the District Court to deal with it, and that is to decide the statutory issue first.

The second problem pertains to something quite related to this, and that is the question of whether new issues can be raised for the first time here on appeal, and we're got two things that seem to be in that posture. The first one is the question of whether or not White v. Regester and the doctrine therein applies to municipal governments.

This case is in precisely the same posture as Wise v. Lipscomb, it was never raised below in the District Court or the Court of Appeals. The policy of this Court is not to permit things to be raised at the last moment and we think you should adhere to that.

On my reading of the record, the same thing is true about whether or not there is a private cause of action under section 2. As you recall, with the exception of Mr. Justice Stewart, most members of the Court were of the view in Bakke that that issue not having been raised below could not be raised in that particular case at first instance here. And we think that the question of whether there is a private cause of action under the Voting Rights Act is in that posture, in the same posture that the private cause of action under Title 6 was in Bakke. I say that without meaning to signal any lack of confidence in our argument that there is a private cause of action, but again as a procedural matter the Court has practices which would be applicable to dealing with it.

QUESTION: Wait a minute. I don't understand what you are saying. First of all, I didn't understand the reference to me. I think it was intended to be with reference to Mr. Justice White, but that is neither here nor there in the Bakke case.

What I don't understand here is what you have just told us about whether or not the private right of action under Title 2, section 2 exists. As I understand it, the District Court in this case didn't rest at all on the statute. Is that correct?

MR. SCHNAPPER: Right, just like the trial court in Bakke didn't rest on the statute.

QUESTION: And the Court of Appeals relegated the issue to a footnote, is that also correct?

MR. SCHNAPPER: That's right.

QUESTION: And what does the footnote say?

MR. SCHNAPPER: As I recall, they didn't think a whole lot of the argument, but if I remember there is a companion case --

QUESTION: Well, one of the reasons they didn't want --

MR. SCHNAPPER: -- which explains why they did not seek to --

QUESTION: One of the reasons they did not hold onto the argument was they might have thought offhand, my golly, there is no private right of action under section 2.

MR. SCHNAPPER: Well, I don't think you could read that into it.

QUESTION: No.

MR. SCHNAPPER: I am trying to give you an agenda of the problems in the case and that is one of the issues you are going to have to sort out. I think --

QUESTION: Well, certainly section 2 is not dispositive and couldn't be here if there is no private right of action under section 2.

MR. SCHNAPPER: And if --

QUESTION: Isn't that true?

MR. SCHNAPPER: Yes, that's girth. That's right no question about it.

Third, there is a problem raised in both of the cases here about what was referred to loosely as the two-court rule. With regard to what particular cases, I think particularly Justice Stevens' questions have pointed out, we maintain that there is a finding of intentional discrimination, and Mr. Allen takes the position that if there is such a finding it isn't justified on this record.

If the Court were sitting or you were riding circuit, of course we would be in a very different posture than we are in now, but the normal practice of this Court and a salutary practice at that is not to get into factual issues of that sort when they have been resolved by the lower courts.

The factual record on which the District Court finding is based is much more substantial than Mr. Allen suggests. There was first direct testimony by members of the legislature as to the motives of the legislature in dealing with redistricting legislation, there was a long history of racial discrimination in Alabama; including a number of cases in which multi-member districting plans adopted by the state legislature had been held by federal courts in other cases to have been racially motivated. And the discriminatory impact of this system among blacks was not only -- is not only pronounced, it was known to everybody in the state and the school board at the time.

So this case presented all the kinds of evidence which Arlington Heights suggested were relevant to this kind of inquiry, and we think the District judge had no choice but to reach the conclusion that he did.

Finally, there is a problem here that really fairly characterizes the problem of stare decisis and it goes particularly to whether White v. Regester is good law. The briefs deal with this in somewhat greater length and the arguments have until now.

I think the --

QUESTION: Which do you mean, still in existence or good?

MR. SCHNAPPER: Pardon me?

QUESTION: Which do you mean, still in existence?

MR. SCHNAPPER: I think it is both of those things.

As we have noted in our brief, White v. Regester was based on a series of decisions before then, it has been cited with approval in half a dozen decisions since White, some of them after Washington v. Davis. White itself was a unanimous decision and a decision only six years ago, and we think the Court should not entertain a general practice of reopening recent constitutional decisions and this one we suggest was in any event quite properly decided.

We also note that the argument against for overturning White is really to legs. One of them is that Washington v. Davis has somehow or other changed the underlying law in this area. We have suggested in our briefs that Washington v. Davis and White v. Regester deal with two different branches of equal protection law, that Washington v. Davis is concerned with the branch of equal protection law forbidding racial, classifications, whereas White v. Regester is part of the Reynolds v. Sims branch of equal protection law concerning special protections for particularly important and fundamental rights.

The other basis of the attack on White, and one which I think has been recurrent in questions before the Court today, is whether White makes any sense, and I think our arguments about wouldn't this all go away if blacks lived everywhere and can't blacks be elected in Los Angeles and the like, all of which on the merits are unpersuasive. In the final analysis, they are arguments that White v. Regester was wrongly decided, and we think that the Court ought not be entertaining that. I think you should start with White v. Regester and we think it would be dispositive to this litigation.

I would like to turn to another issue that arose earlier. When we were here in the spring, Mr. Justice Rehnquist asked whether -- he raised the following question -- we were discussing apparently inconsistent statements about the Voting Bights Act. Attorney General Katzenbach was quoted by our side as stating that section 2 of the Voting Rights Act encompassed the purpose or effect standard. Mr. Justice Rehnquist noted that Senator Dirksen had made a remark about section 2 almost meaning the same thing as the Fifteenth Amendment, and I would like to return to that because I think it is important, particularly in view of my position that the statutory issue ought to be decided first.

If you will revert to the Dirksen quote, you will notice that it doesn't happen on the floor of the Senate, it happens during a hearing, indeed the very hearing, almost at the very hour when Katzenbach testified. Dirksen was one of the members of the Senate Judiciary Committee and was, according to the transcript, in the room at the beginning of the hearing.

Dirksen sat there while Katzenbach said section 2 means purpose or effect. A few pages later, Senator Dirksen says section 2 means almost the same thing as the Fifteenth Amendment.

Now, either of those people -- one has to try to reconcile those statements and, of course, one could reconcile them by accepting our view of the Fifteenth Amendment. But I think that the government's footnote and Justice Stevens' opinion in Bakke suggest a more sensible resolution, which is to say that those two statements were regarded by their spokesmen as consistent with one another because Congress at that point in time regarded section 2 as incorporating the purpose or effect standard which they thought was in the Fifteenth Amendment. And there is a passage, Justice Stevens, in your opinion in Bakke which describes Title VI in the same kind of way, but suggests that Title VI has independent force and it doesn't merely incorporate whatever the Fourteenth Amendment should be held to mean by this Court.

Without wanting to reopen the particular issues that were in Bakke, I think that method of analysis, however persuasive, in Bakke is the correct method of analysis here.

The second thing that comes out when you re-read that passage is the context in which it was made. As you will doubtless recall, one of the primary arguments that was made against the Voting Rights Act was that it was regional in nature, that it singled out a group of southern states for treatment different than the treatment that was being afforded to the rest of the country.

Senator Dirksen, in making that remark about section 2, makes it -- in the context of a paragraph in which he says look at section 2, section 2 covers Texas -- as you recall, Texas was a big bone of contention because the President was from Texas and it wasn't covered -- section 2 covers Texas, so Texas is covered by the Voting Rights Act, too.

Now, if section 2 is merely the Fifteenth Amendment and a purposes standard, then that statement makes no sense at all But, if it --

QUESTION: The Fifteenth Amendment covers Texas. What do you mean by that?

MR. SCHNAPPER: The dispute was about why the Voting Rights Act didn't --

QUESTION: Section 2 covers each of the fifty states, and so does the Fifteenth Amendment.

MR. SCHNAPPER: But the criticism that was being made about the Voting Rights Act was that section 5 didn't apply to all states.

QUESTION: Yes.

MR. SCHNAPPER: And in response to that, Dirksen said, ah, yes, but section 2 does so the act applies all over. Now, if section 2 had no substantice force at all, if it set a different standard in section 5, a lower standard, the only purpose would give you a cause of action, then it was -- and that was the same standard as the Fifteenth Amendment -- then to say that section 2 covers Texas, so the act applies there was rather unpersuasive, because section 2 wasn't --

QUESTION: It was true, that section 2 covers every state, whatever it means.

MR. SCHNAPPER: But it didn't make sense as an argument unless it meant the same --

QUESTION: And the Fifteenth Amendment covers every state, whatever, it means.

MR. SCHNAPPER: But as an argument to convince other members of the committee --

QUESTION: It was a little rhetoric perhaps.

MR. SCHNAPPER: -- well, as rhetoric to convince members of the committee that the act was equally applicable to all states, that only makes sense if the substantive meaning of section 2 was the same as the substantive meaning of the provisions which applied to the southern states.

And as we have noted in our brief, the history of the Voting Rights Act reflects great sensitivity on the part of the Court to the possibility of a regional rule. We don't think that it was the intent of Congress except in the very narrow area which we have noted, having to do with literacy tests, to create a situation in which the same sort of districting system would be illegal in Prince Edward County, virginia and legal in Prince George's County, Maryland, and we don't think Congress should have presumed to have made that kind of distinction unless it is crystal clear that it did.

So that we find that the Dirksen statement is consistent with the Katzenbach statement and with our view of the law.

In addition, Justice Stevens, you asked earlier what the relevance of intent was and it is a rather complicated problem which I would like to deal with very, very briefly, it is complicated because it is relevant to a whole host of issues. This is a case which presents --

QUESTION: I will ask you another question at the same time, while you --

MR. SCHNAPPER: Surely.

QUESTION: Do you think intent was an essential part of the holding in White v. Regester? Do you think the Court relied there on impact --

MR. SCHNAPPER: Absolutely not. It was entirely irrelevant. As we have laid out in our brief, this Court has three times described the rule in White as a rule that means that in these terms is designedly or otherwise diluting the black vote. Whitcomb began with a statement that it was conceded that there was no discriminatory intent and then went on to write for four or five pages. So I think it is crystal clear that intent was no part of White v. Regester.

With regard to the relevance of intent here, this is a case, as we noted in the spring, that raises five or six different legal theories and intent is of different relevance to various of them. With regard to our claim that this election system is intentionally maintained to prevent the election of blacks, the relevant discriminatory intent is the intent of a people who make laws. I phrase it that way because the practical political control of the legislative process is rather complicated and involves primarily the legislative delegation to a significant extent, in this case the school board itself, so I don't phrase it in terms of the legislature, but I think that is consistent with the way you were phrasing the question earlier.

With regard to our claim under White v. Regester, it is our position that racial discrimination by the elected officials is of some relevance to proving the cause of action which we think we have proved here. We don't think it is of much importance as Zimmer v. McKeithen does. We think that racial discrimination by the all-white elected government tends to confirm our claim that they are essentially elected solely by the whites and are solely responsive to the whites in town.

With regard to our Fifteenth Amendment claim, in arguing that the Fifteenth Amendment covers discriminatory effect, we resorted in particular to the legislative history of the Fifteenth Amendment, pointing out that the framers of that amendment were concerned to protect not the right of blacks to put X's on pieces of paper but to give blacks a right that would allow them to protect themselves from racial discrimination by state and local governments, particularly at the end of reconstruction which everybody by 1869 or 1870 knew was inevitable.

If we are correct in that construction of the Fifteenth Amendment, then it would demonstrate the particular relevance of the effect meaning of the Fifteenth Amendment that the right to vote such as it exists in Mobile for blacks is clearly not carrying out the effect of Congress, the intent of Congress.

QUESTION: Is that view of the Fifteenth Amendment consistent with the court opinion in Vermillion v. Lightfoot?

MR. SCHNAPPER: I think Vermillion is fairly described as opaque. One must recall that at the time of Vermillion there were decisions of this Court, a line of decisions which continued up until Palmer v. Thompson and O'Brien v. United States, which suggested that an inquiry into the intent of legislatures were impermissible. So that as of the date of Vermillion, opinions were being phrased rather carefully so they didn't exactly find intent and they didn't exactly find purpose, they were just sort of outraged and said you couldn't do it, and I think Vermillion is in that posture.

QUESTION: Wasn't there a great deal of emphasis in the Vermillion opinion, which I have not read recently, upon the fact that this particular -- the city boundaries in that case could only here been attributable to an intent to disenfranchise non-whites?

MR. SCHNAPPER: I couldn't read Vermillion in that way.

QUESTION: You do not?

MR. SCHNAPPER: I don't read Vermillion in that way. I mean I think that was the intent involved, but I think that the opinion is phrased to avoid making that kind of statement. It would at the time have been quite arguably improper to make, to put that kind of conclusion of law in an opinion.

MR. CHIEF JUSTICE BURGER: Your time has expired now, Mr. Schnapper.

MR. SCHNAPPER: Thank you.

MR. CHIEF JUSTICE BURGER: Mr. Allen, I think we can hear you out before we rise for lunch.

ORAL ARGUMENT OF WILLIAM H. ALLEN, ESQ., ON BEHALF OF APPELLANTS WILLIAMS ET AL -- REBUTTAL

MR. ALLEN: I think I only have one point and that is that I hope it is not we who are being accused of thinking that White v. Regester represents something less than good law.

The fact is that the opening of the analysis in White v. Regester begins this way: We have entertained claims that multi-member districts are being used invidiously to cancel out or minimize the voting strengths of racial groups. To sustain such proof, it is not enough that the racial group has not had legislative seats in proportion to its voting potential.

The plaintiffs' burden -- paraphrasing now -- is to produce evidence that would support findings that the political processes leading to nomination and election are not equally, open to participation by the groups in question, and that we submit is what was lacking on the proofs offered in the school district's case here.

QUESTION: Do you think that is equivalent to purpose or not?

MR. ALLEN: Excuse me? I think that what was -- that the circumstances which that general rule was applied in White v. Regester was the equivalent of a purpose to exclude from participation, yes, Your Honor.

QUESTION: I take it from what you answered me before, when you were up before, that if it were satisfactorily shown that a multi-member district was adopted or that if it was refused to dissolve it for the purpose of maintaining the effects of racial block/voting, that you would have a tough time defending --

MR. ALLEN: I would have a tough time -- we have -- I should say this much about White v. Regester. We have indeed urged, although the --

QUESTION: Because you can have all the legislative purpose you want, but if the racial block voting suddenly falls apart and they start voting on the merits --

MR. ALLEN: Then you have not affected the discrimination.

QUESTION: Yes.

MR. ALLEN: That is quite true. One would have to find that. One would have to find that the group claiming to be disadvantaged was indeed disadvantaged, to be sure. But where all one has is the block voting and a statute neutral in its inception, then it is our position that that is what is not enough.

Thank you.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 12:00 o'clock noon., the cases in the above-entitled matters were submitted.)

Attribution:

The Oyez Project

Holt Civic Club v. Tuscaloosa - Oral Argument

Sun, 20 Jun 2010 20:42:37 +0000

Case:

Holt Civic Club v. Tuscaloosa

Media File:

77-515_19781011-argument.mp3

Related Transcript:

77-515_19781011-argument.xml

Transcript:

Argument of Edward Still

Chief Justice Warren E. Burger: We'll hear arguments first this morning in 77-515, Holt Civic Club against The City of Tuscaloosa.

Mr. Still, you may proceed whenever you're ready.

Mr. Edward Still: Mr. Chief Justice, and may it please the Court.

This action was heard by a three-judge District Court which was empanelled to hear a challenge to the constitutionality of an Alabama statute which empowers and directs each city in town in Alabama to exercise its police power within a one-and-a half or three-mile zone around the city or the town.

The adverse decision of the District Court against the plaintiffs was appealed to this Court under 28 USC Section 1253.

The Court reserved the question of jurisdiction and we have briefed that extensively.

And, if the Court does not have any further questions on that point, I'll move on to the merits of the case.

Justice William J. Brennan: Mr. Still, how old a statute is this Alabama statute?

Mr. Edward Still: The statute was passed in the early 1900s, one of them, a second one was -- I believe it was 1907.

A second one was passed in 1927, and I'm not sure about the third one.

Justice William J. Brennan: So, they're pretty old statutes to be challenged at this late date, aren't they?

Mr. Edward Still: They are old.

Justice William H. Rehnquist: You say, counsel, that the statute empowers and directs the municipal corporations of the cities to do these particular things.

Is that where the -- would you make that claim that it both empowers and directs with respect to each of the legislative activities that we're talking about here?

Mr. Edward Still: You mean the legislative activities of the city or the three statutes?

Justice William H. Rehnquist: Of the city.

Mr. Edward Still: Yes, sir, I believe that it does because Section 11-40-10 which is the primary police jurisdiction statute, contained in Addendum (b) to the brief, the grey brief, says that ordinances of the city or town shall have force and effect in the limits of the city or town and so, that is a mandatory statement there and I believe that they would have effect whether the city intended them to or not.

Now, city force might choose not to send its police out, but I believe that it is mandatory under state law.

Justice William H. Rehnquist: What page is Addendum (b) in the grey brief?

Mr. Edward Still: It is about three pages from the back of the grey brief, Your Honor.

It is, I believe, (b) (1) is the page.

Chief Justice Warren E. Burger: Of your first brief?

Mr. Edward Still: Of the grey brief, Your Honor, of the brief of the appellants.

That contains the new language of the statutes.

There's been a recompilation of the Alabama Code since we originally filed the suit, but the text of the statutes has not changed materially.

Justice William H. Rehnquist: It said in the second paragraph of the -- of Section 11, after defining the police jurisdiction, the second paragraph begins "ordinance of a city or town enforcing police or sanitary regulations."

Can't that just as readily be read to read "choosing to enforce regulations" as "being compelled to enforce regulations"?

Mr. Edward Still: No, sir, Your Honor.

I believe that that statute has been interpreted in Alabama as defining a class of statutes.

Police ordinances and sanitary ordinances are two classes of ordinances.

Other types might be financial regulations of the city, internal regulations of the city, for one reason or other, or zoning regulations.

Under Alabama law, zoning regulations are not police ordinances and so, in that way, this is a way of differentiating police and sanitation regulation, sanitary regulations from, say, zoning regulations or other types of ordinances that would not have an extraterritorial effect.

Justice Potter Stewart: It's descriptive in other words.

Mr. Edward Still: Yes, sir, it is descriptive of a class of ordinances.

Justice Potter Stewart: Any ordinances falling into those categories are effective and within the extraterritorial police jurisdiction of the municipality.

Yes, sir.

That is the way the statute has been interpreted in Alabama.

Justice William H. Rehnquist: Your can -- is the case that interprets it that way cited in your brief?

Mr. Edward Still: Yes, sir.

I believe that we cite both the City of Montgomery versus Roberson case and White versus City of Decatur.

City of Montgomery versus Roberson was a case that dealt with the power of the City of Montgomery to zone in its extraterritorial jurisdiction and the Alabama Supreme Court went into statutory construction in great lengths there to explain that these were just ways of describing certain classifications of ordinances and that zoning was not a police power within the normal meaning of the term as far as cities go because we had to pass a special law allowing cities to zone in Alabama.

It was not considered to be in the normal grant of powers to cities by the State of Alabama.

The case alleged both due process and equal protection grounds in the original complaint.

We have briefed the question of due process and you will notice that we have cited only two cases, and that is United States versus Texas and United States versus Alabama, Judge Johnson's concurring opinion there.

The question of due process is so fundamental that it generally has not had to be raised in voting rights cases and, yet, if we think about it, the process that is due to all of these citizens is that if they are governed, they should be allowed to have some voice in the government over them.

The question is usually not presented to this Court in a due process context, but I believe that it should be in this case because even ignoring a comparison between the -- what the City of Tuscaloosa does to its citizens and what the City of Tuscaloosa does to the people in the police jurisdiction, the fundamental question under due process would be what should it do to the people in the police jurisdiction if it does not allow them to vote.

It is --

Justice William H. Rehnquist: What if the State of Alabama provided that the City of Tuscaloosa shall be governed by a five-man commission appointed by the Governor of Alabama so that the city -- the residents within the city boundaries of Tuscaloosa would have absolutely no say in the composition of that commission.

Would that be a violation of due process?

Mr. Edward Still: No, Your Honor, I do not believe that it would because, in that case, the city -- the state would have essentially abolished local government except through commissioners of some sort, agents that it appointed from the central government.

It has done that in the past with the Port of Mobile in the late 1800s.

I think that would be a fundamentally different situation here than one in which there is a local government which is elected and in which these people are not allowed to participate.

The boundary between the due process and the equal protection which it is --

Justice William H. Rehnquist: Yes, that boils down almost to an equal protection claim.

If you say that citizens in Tuscaloosa can vote but citizens in the police jurisdiction can't vote, it seems to me that's more of an equal protection claim than a due process claim.

Mr. Edward Still: Yes, sir, and that is the question that we have briefed most extensively but, as I said, the question usually does not arise even that it's a due process claim, but we have raise that in this case and I think it is a sufficient grounds.

Justice Potter Stewart: It's arisen a good many times.

I think, before I came in the bench this morning, I glanced over and I -- it's not an article, it's a comment in the Chicago Law Review of last fall, in which it has pointed out that some-35 states have this sort of system, in whole or in part, and that it dated back to the late 19th Century and that, repeatedly, due process attacks on extraterritorial government by municipalities were rejected.

Mr. Edward Still: Yes, sir, Your Honor, they were.

Justice Potter Stewart: Perhaps it isn't quite so obvious as you indicate.

Mr. Edward Still: Well, I was talking about a more recent --

Justice Potter Stewart: The article went on to say, I should say, if -- in your behalf that, in the ling of the modern developments of the equal protection law, the result might be quite different.

Mr. Edward Still: Yes, sir.

I think that it might.

Most of those challenges were raised, as you point out, in the late 1800s at a time when we didn't--

Justice Potter Stewart: Well in the early years of this century anyway.

Mr. Edward Still: Yes, sir, or the early part of this century.

The equal protection questions is, I think, a fundamental one that we're dealing with here, as the Chicago Law Review comment pointed out, there are 35 states that has some-sort of extraterritorial power for their cities.

Only four states: Alabama, Montana, North Dakota, and South Dakota have full police power extraterritorial jurisdictions.

The rest of them allow some sort of zoning or some sort of business regulation or nuisance regulation in an extraterritorial zone, but the full-fledged police jurisdiction that we're talking about in this case is only in four states.

The equal protection question, first of all, the first mater that we get to in that regard is, what is the proper standard of review?

The City of Tuscaloosa has raised the point that the -- only a rational relationship must be shown between the means and the end that the state has chosen, and they cite for authority on that point Salyer Land Co. versus Tulare Water Storage District.

That case utilize such a test, a rational relationship test, rather than a strict scrutiny test because this Court first determined that the Tulare District was not a general purpose government and, therefore, the strict scrutiny rule did not apply because it was not really the right to vote in the fundamental sense, that we know it, that was involved in the case.

The City of Tuscaloosa is not such a limited purpose government in the police jurisdiction.

The only things the city cannot do in the police jurisdiction that it can do in the city limits of Tuscaloosa is collect ad valorem property taxes and to zone, as I pointed out a moment ago.

It may also collect only one-half of the usual license fee that it charges inside the city.

Justice William H. Rehnquist: If the City of Tuscaloosa were to attempt to enacts the police jurisdiction, would some sort of consent on the part of the residence in the police jurisdiction be required, some sort of a referendum?

Mr. Edward Still: Some sort of consent is required under Alabama law, Your Honor.

The statutes provide for three or four different methods, each one of them either requires a referendum among the affected voters residence of a particular area or their consent on a petition.

There are different statutes for different cities, but every one of them requires both the consent of the city and the consent of the affected voters in a particular area.

Now, in some cases, there are additional requirements.

Justice William H. Rehnquist: What if in this situation the city had sought to enacts the police jurisdiction that you're complaining about and the citizens in the affected area had refused to be enacts.

Would your case be any different?

Mr. Edward Still: No, sir.

I don't believe so.

The city is constantly growing.

As the city has pointed out in their brief, it's grown about quintupled in size over the last 25 years or so.

The -- I don't think that the case is any different if these people had been given a choice about whether they wanted to be in the City of Tuscaloosa and chose not to be because they are still treated differently than the people in the City of Tuscaloosa.

Justice William H. Rehnquist: Well -- but doesn't the ci -- doesn't the State of Alabama have some concern with the added law enforcement problems right around the ring of an urban area that enable it to do some things that it might not be able to do way out in the country?

Mr. Edward Still: Yes, sir.

I believe that the state may have a legitimate concern.

But, either under the rational relationship test or the compelling state interest test, we've got to look at the end that they're seeking which is protection of these people from marauders of various sorts by the police and the means that they chose to do so.

The means that they have chosen to use in this particular case are to allow a different government that these people do not have a vote in to govern them, and that's the due pro -- that's the equal protection question and he due process question.

We're not attacking the end of the regulation, the state saying that these people need some sort of protection.

We are simply attacking the means by which they have done it because, as the Chicago Law Review article or comment pointed out, there are many different ways in which these people who live in areas right outside cities could be governed.

As I pointed out, 46 states do not have the type of jurisdiction that we're talking about in Alabama.

So, they have figured out some way to protect these people without depriving them of the right to vote by the government that is supposedly protecting them.

There are 15 states that have no sort of extraterritorial jurisdiction at all.

They utilize such things as township governments or direct police protection by the county government.

Now, I think those things could be used in Alabama under the Alabama constitution, not -- perhaps not townships per se, but direct government by the county government could be used.

Justice Potter Stewart: You rely primarily on the reapportionment cases in this Court, don't you?

Mr. Edward Still: Not so much the reapportionment cases, Your Honor, but that line of cases beginning with Kramer versus Union Free School District which are not so much reapportionment cases as they are voting rights cases.

Justice Potter Stewart: Yes.

And, in Kramer, the complaint was that that unmarried man, if that's what he was, was not allowed to a vote in a School Board election.

Mr. Edward Still: That's correct, Your Honor.

Justice Potter Stewart: In that School Board election in the State of New York, as I remember it.

Mr. Edward Still: Yes, sir.

Justice Potter Stewart: What he asked for in his complaint was that he be allowed to vote, wasn't he -- wasn't it?

Mr. Edward Still: Yes, sir.

He was seeking the right to vote in that particular case.

That's because that was the only practical remedy.

No matter what he did, there was no way he could isolate himself from the pervasive effects of a school in our society today.

That was the whole basis of the Court's decision.

Justice Potter Stewart: And he was going to be taxed if the tax levy or bond issue was passed by the --

Mr. Edward Still: Well, he was going to be taxed indirectly.

He did not own any property to be taxed.

Justice Potter Stewart: He was a tenant, as I remember.

Mr. Edward Still: That's right.

He lived with his parents and he was a non-property owner.

Justice Potter Stewart: I don't --

Mr. Edward Still: And so --

Justice Potter Stewart: You may remember I dissented in that case, so I don't --

Mr. Edward Still: Yes, sir, I do.

Justice Potter Stewart: But, in any event, the relief he was asking was that he be allowed to vote.

Now, the relief you're asking is that this whole extraterritorial jurisdiction be held to be totally invalid, isn't it?

Mr. Edward Still: Yes, sir.

That's correct, and that's because we have a choice in this case which no one else has had as a practical matter.

Mr. Kramer, as I said, didn't have any practical way to pull himself out of society and say the schools aren't going to affect me.

Cipriano in the City of Phoenix case was going to be affected by the utility rates no matter what he did.

As long as he was hooked up in -- directly or indirectly to the city's utilities, he was going to be paying for the bond issue that the property owners were passing.

In Evans versus Cornman, the only practical thing to do was to extend the right to vote to those people who lived out at the NIH enclave in Montgomery County, Maryland because if you had said “well, Maryland must withdraw their authority over them, you would've had to have declared unconstitutional the Federal Assimilative Crimes Act and several other federal Acts, an entire federal scheme of regulation.

Justice Potter Stewart: But, in any event, those cases would seem to indicate that the constitutional injury perceived by the Court was in prohibiting those plaintiffs from voting.

Mr. Edward Still: Yes, sir.

Justice Potter Stewart: And, that was the constitutional injury.

Now, you don't allege any such constitutional injury.

Mr. Edward Still: Yes, sir, we allege the flip side of that because these residents of the Holt area are not allowed to vote, they -- and, they are governed then they are deprived of a constitutional right.

Now, we have a choice --

Justice Potter Stewart: Mr. Still, you're not asking for redress for that constitutional injury.

You're not allow -- asking that you be allowed to vote.

Mr. Edward Still: No, sir.

We did not ask for that in the complaint, but I think that the Court -- District Court could have granted that particular relief if it had found that we have stated a cause of action.

I think that it also, as a practical matter, could have granted the relief that we sought because that relief would actually be less disruptive of the state's regulatory system than would extending the right to vote.

Justice William H. Rehnquist: Well, in Reynolds against Sims, could the Court have granted the relief of relieving the City and County of Denver of any jurisdiction of the State of Colorado?

Mr. Edward Still: No, sir, I don't believe that they could.

Justice Potter Stewart: It was Lucas --

Justice William H. Rehnquist: Why is that --

Justice Potter Stewart: Lucas against 44th General Assembly.

Mr. Edward Still: Yes.

Justice William H. Rehnquist: Lucas, yes.

Why is that different from this?

Mr. Edward Still: Because, in this particular case, if we remove the City of Tuscaloosa's jurisdiction over these people, they will still be governed by the County of Tuscaloosa and by the State of Alabama and, yet, they will not be governed by the City of Tuscaloosa.

So, we actually have a practical choice that could be made in this case between the remedies.

But, as I say, if the District Court had found that we've stated the cause of action, had allowed us to go to trial and it found that we prevailed, it could have ordered a remedy of saying we declare the statute to be unconstitutional and we give the state legislature one year to come up with a new statute, and if it doesn't, then we will undertake to do something ourselves.

In much the same way that many times Reapportioning Courts have done so, they've declared the present scheme unconstitutional and then deferred to the state legislature to do so and, in fact, this Court requires it to do so if at all practical.

Justice Potter Stewart: But your lawsuit is analogous to what those voting cases and reapportionment cases would have been had the plaintiff in the reapportionment cases said this legislature is mal-apportioned, therefore, anything it does is null and void.

It's an invalid legislature, and the Court, at least by some reaction, has declined to accept the proposition that a mal-apportioned legislature cannot legislate.

Mr. Edward Still: Yes, sir, Your Honor.

And, in those cases in which people actually did claim that a mal-apportioned legislature did not have the power to legislate --

Justice Potter Stewart: We've had cases, for example, where a mal-apportioned legislature has enacted laws and those laws are attacked as invalid because they were enacted by an unconstitutional legislature and the Court, I don't remember any opinions dealing with it in a plenary way, but the Court, at least by some reaction, has rejected those claims.

Mr. Edward Still: Yes, sir, but in many of those case -- reapportionment cases, the -- I believe the plaintiffs, in addition, sought to have the present legislature just removed from office immediately and that--

Justice Potter Stewart: Well, they sought to ask this Court to hold constitutionally invalid state laws enacted by concededly mal-apportioned legislatures.

Mr. Edward Still: Yes, sir.

The point that I'm trying to make is just because you ask for the wrong remedy in your initial complaint, doesn't mean that that complaint is invalid.

If you state a cause of action --

Justice Potter Stewart: But, often, the remedy identifies the constitutional injury about which you're complaining?

Mr. Edward Still: Yes, sir, and we have identified the constitutional injury as these people being governed and not being allowed to vote.

Justice Potter Stewart: Well-- so, the -- if the constitutional injury is that you're not being allowed to vote then the redress for that injury is that you be allowed to vote.

Mr. Edward Still: It may be that the Court -- the District Court will hold that.

It may be that this Court will hold that.

We will accept that kind of remedy because, I think, if it happen that the State of Tusca -- that the State of Alabama would remedy that situation very quickly by passing a new statute, probably abolishing the police jurisdiction, but there are approximately 16,000 people who live in the police jurisdiction of Tuscaloosa.

There are 116,000 -- excuse me, there are 70,000 people who live in the City of Tuscaloosa.

We're talking about expanding the City of Tuscaloosa by one-fourth, approximately, by judicial fiat if you hold that these people have the right to vote.

We say it would be much less disruptive --

Justice Thurgood Marshall: Where do you get the judicial fiat when you got a state statute involved?

Mr. Edward Still: Excuse me, Your Honor?

Justice Thurgood Marshall: It's not the decision of this Court that would do it.

It's the state statute that would do it.

Mr. Edward Still: Yes, sir, but I'm saying that --

Justice Thurgood Marshall: Am I right?

Mr. Edward Still: Yes, sir, but I'm saying that the Court has a choice.

Justice Thurgood Marshall: And what you want us to do is to find that this state statute is unconstitutional and then dream up a remedy for you.

Mr. Edward Still: No, sir, I'm not asking this Court to --

Justice Thurgood Marshall: And, I mean dream because you haven't told us yet what you want, have you?

Mr. Edward Still: Yes, sir, I have.

We have asked that the --

Justice Thurgood Marshall: Or try it again toward the end?

Mr. Edward Still: I have asked that the city's jurisdiction over these people who do not live inside the City of Tuscaloosa be removed from them, that the City of Tuscaloosa are not being allowed to govern them.

Justice Thurgood Marshall: And how do you do that?

Mr. Edward Still: You simply tell the City of Tuscaloosa they can't send their police into that area anymore and they can enforce the order.

Justice Thurgood Marshall: It's your injunction?

Mr. Edward Still: Yes, sir, I believe that you could.

Justice Thurgood Marshall: Well, did you ask us to?

Mr. Edward Still: Yes, sir.

The original complaint --

Justice Thurgood Marshall: Did you ask it before right now?

Mr. Edward Still: Yes, sir.

The original complaint, if you'll look in the complaint, it asked that an injunction be issued to -- enjoining the enforcement of the police jurisdiction statute, the main police jurisdiction statute, and declaring two additional police jurisdiction statutes to be unconstitutional.

It doesn't ask that they'd be enjoined because believe that they are dependent upon the main police jurisdiction statute.

Justice Thurgood Marshall: And whatever they said you put on.

Mr. Edward Still: We have never been allowed to put any evidence on in this case.

It was dismissed by a single-judge District Court.

The Fifth Circuit reversed the case, sent it back to be heard by a three-judge District Court.

The three-judge District Court then dismissed on another motion to dismiss.

There is some evidence in the file in this case and the record in this case because we didn't take discovery and, presumably, the District Court did look at that, but it never mentioned it in its particular opinion.

Justice Thurgood Marshall: But you did have discovery.

Mr. Edward Still: Yes, sir.

We did take discovery.

The case was pending for three years in the District Court in two different times.

Justice Thurgood Marshall: Well, I notice you put great weight on the fact that you said embodied your complaint and, for other relief, you're not relying on that, are you?

Mr. Edward Still: That, Your Honor, is a standard way of doing things in Alabama but, as I pointed out, the federal rules of federal procedure allow the Court to grant such other relief as it may find proper.

If we have stated a cause of action before we get to the "where for" --

Justice Thurgood Marshall: That's just what I -- a minute ago, I used the word "dream up."

That's what you want the Court to do.

Mr. Edward Still: No, sir.

I'm not asking the Court to dream up.

I ask for a specific remedy and I think that --

Justice Thurgood Marshall: And are you limited to that now in your argument?

Mr. Edward Still: No, sir.

I don't believe it were limited to that because I think, under the Federal Rules of Civil Procedure, the Court is allowed whether I ask for such other further equitable relief as may be granted.

I think the Court is allowed to fashion such a remedy as would be equitable in the situation.

Justice Thurgood Marshall: Without any suggestion from you?

Mr. Edward Still: I believe that I --

Justice Thurgood Marshall: But you--

Mr. Edward Still: I have some right to make suggestions, but if the Court finds that I'm only entitled to (a) and I ask for (b), but (a) is encompassed within the cause of action that I ask for, that they will grant that sort of thing.

There are many cases in which people will ask for injunctions which, for one reason or another, might be barred by equitable principles or by the Constitution of the United States, Eleventh Amendment or something like that.

So, instead of issuing a mandatory injunction that says to the state "spend money," the Court come back and says "don't do this unless you do something constitutional."

They issue a prohibitory injunction.

Justice Thurgood Marshall: Well, what do you want us to do other than to issue these injunctions?

Mr. Edward Still: I want this Court specifically to reverse the case and send it back to the District Court which would then issue the injunctions and declare two statutes unconstitutional and enjoin the third statute from being enforced.

Justice Thurgood Marshall: And what else?

That's -- then satisfy you.

Mr. Edward Still: That would be sufficient, Your Honor.

That would be sufficient.

If --

Chief Justice Warren E. Burger: Mr. Still, when the Court noted probable jurisdiction in this case, as you've already observed, it indicated that four justices had enough doubt about jurisdiction so as to postpone the resolution, and you have elected to submit that on the brief.

I just want to be sure that you're content to do that.

Mr. Edward Still: Yes, sir, I am, unless -- but I'm certainly ready, willing, and able to answer questions if anyone has any on the jurisdictional question.

Justice Lewis F. Powell: Before you go on, may I ask your reaction to the authority of the state to authorize extraterritorial jurisdiction limited to police power and let's assume further that there was no power to impose taxes, merely the authority to send the City Police into the county.

Mr. Edward Still: Well, Your Honor, it's a little bit more than just sending the police.

They also get to enforce their particular ordinances.

So, they get to choose -- the City of Tuscaloosa gets to choose what will be enforced, what will be imposed upon the residents of the police jurisdiction.

So, in that way, they can impose not only their police force, their agency, but they could also impose their will upon these people.

Justice Lewis F. Powell: You're talking about speed limits and parking restrictions?

Mr. Edward Still: Yes, sir, that sort of thing and all sorts of business regulations.

Justice Lewis F. Powell: And what else, what about criminal laws and city ordinances?

Mr. Edward Still: Yes, sir.

They are quasi-criminal ordinances, is what they're called in Alabama.

I never had exactly understood the distinction.

You still go to jail.

Justice Lewis F. Powell: It's different from state criminal provisions?

Mr. Edward Still: Yes, sir, some of them are.

For instance, in Alabama, just to take an off-hand example, it's not -- prostitution is not illegal under Alabama law, but prostitution is illegal under Tuscaloosa City ordinances.

It's illegal to solicit for prostitution under Alabama law.

It's illegal to keep a body house, but it's not illegal to be a prostitute or to actually engage in an act of prostitution.

So, the City of Tuscaloosa gets to impose its will upon these people in an area that would not otherwise be governed.

They've got solicitation ordinances about charities.

We've got an appendix to the, I believe, the jurisdictional statement.

Justice Lewis F. Powell: I've seen it.

Mr. Edward Still: Which list all of the ordinances of the City of Tuscaloosa which, in effect --

Justice Lewis F. Powell: And the answer to my question would be the same even if no taxes were imposed on the residence of the county.

Mr. Edward Still: Yes, sir, I believe so because the police power is so pervasive.

Justice Potter Stewart: There are no taxes involved here.

Mr. Edward Still: No, sir, there are no taxes.

There are some license fees that are collected.

Justice Potter Stewart: License fees.

Justice Lewis F. Powell: Well, I was thinking of the license fees.

Mr. Edward Still: If it please the Court, I would like to reserve the remainder of my time for rebuttal.

Thank you.

Argument of J. Wagner Finnell

Chief Justice Warren E. Burger: Mr. Finnell.

Mr. J. Wagner Finnell: Mr. Chief Justice and if the Court please.

I first would like to more fully answer some of the questions that had been proposed by this Court.

For instance, the -- Mr. Justice Powell asked the question "suppose this will confine two police powers in the extraterritorial aspect."

Well, I say that it is so confined because, well, it's police insani -- ordinances of a police insanitary nature, maybe effective both within the city and within the police jurisdiction.

I know, really, other than the fact that the Court, the Municipal Court which is the same as the District Court in all respects, has jurisdiction out in this area, and that may be an aspect of police power but it -- other than that, I know of no other powers that are granted in the police jurisdiction.

As the Court, some of the members, have pointed out, there's no authority to tax.

There's no authority to charge a business license outside or privilege license for the purpose of general revenue.

Now, that's been clearly held by the Alabama Supreme Court.

Of course, within the city, you can't license for general revenue purposes and the business, the establishment, cannot contest on the ground that it's more than the cost of services might be.

But, outside the corporate limits, the Alabama Supreme Court has very carefully limited that to a charge commensurate with the cost of the services rendered.

That's been going on since 1881 in the City of Van Holt versus Selma.

The Supreme -- they were then making charges outside of the corporate limits and, there, the struck down an ordinance that made a charge more than the reasonable cause of promoting the health welfare and wellbeing of those persons in the police jurisdiction.

Later, when the so-called authorization to tax, it's been cited here many times, was adoptive of the state legislature in 1927, that's when it was adopted in another case which I don't have before me.

It's in my brief.

Squarely ruled on it and the Court held that this added nothing to the authority of a municipality to license within the police jurisdiction.

All this authorized --

Justice Potter Stewart: As I understood, Mr. Finnell, of course --

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: Police power has at least two meanings.

There's the constitutional meaning of meaning the state's reserve power to enact legislation within its appropriate -- within the appropriate reserve powers of the states and that's often compendiously known as the police power of a state.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: I understood my brother Powell's to -- question to be more limited that is, supposed it had been confined only to sending the city policemen out there, and that's quite a much more limited concept and was pointed out by your brother on the other side that this would involve also the extension of legisla -- of the city's legislative power out into the police jurisdiction.

Mr. J. Wagner Finnell: It does.

It --

Justice Potter Stewart: When you say this is confined to the police power, you're perfectly accurate and, if that term is understood as being the appropriate power of the municipality to govern itself, it's only part of the police power that is extended but it's certainly much more than simply sending the city policemen out there to enforce the law, the state law.

Mr. J. Wagner Finnell: Yes, certainly, it involves --

Justice Potter Stewart: It's an extension of the legislative power the municipality beyond its territorial limits.

Mr. J. Wagner Finnell: Absolutely, Your Honor.

It allows the ordinances that are effective within the corporate limits to be effective also outside and within a limited area.

Justice Thurgood Marshall: Mr. Finnell.

Mr. J. Wagner Finnell: Yes, sir?

Justice Thurgood Marshall: Suppose in the area outside of Tuscaloosa, which we're talking about, the people in a 14 sq. block area say, "look, we haven't seen a policeman in the last 14 years, and we need some policemen here."

How would they go about getting them?

Mr. J. Wagner Finnell: We had that complaint quite often, Mr. Justice.

Justice Thurgood Marshall: How would they go about getting them?

Mr. J. Wagner Finnell: They would call the police department or the police commissioner or simply come before the Commission Board, as they often do, and ask that the patrols be extended on a more regular basis.

Justice Thurgood Marshall: And if they refuse, what could they do?

Mr. J. Wagner Finnell: If they refuse to go into -- I don't think the city could be required to do that, Your Honor.

Justice Thurgood Marshall: Well, in -- the people inside of Tuscaloosa, couldn't they go one step further and say, "Dear Mr. Commissioner of Police, if you don't put them in there, we'll vote you out of office"?

Mr. J. Wagner Finnell: They could do that, Your Honor.

Justice Thurgood Marshall: Couldn't they?

And the people outside could not do that.

Mr. J. Wagner Finnell: No, sir, but --

Justice Thurgood Marshall: That is a difference, isn't it?

Mr. J. Wagner Finnell: Well, in the sense that if you're not talking about a person engaged in business --

Justice Thurgood Marshall: They'll come out and vote on it, a qualified registered voter.

Mr. J. Wagner Finnell: That's quite true.

They do not vote in the corporate limits, Your Honor.

They do not have that control.

Justice Thurgood Marshall: And they have no authority at all as to whether they shall have good or bad police.

Mr. J. Wagner Finnell: No, sir.

Justice Potter Stewart: Is there a county police force?

I suppose a county sheriff.

Mr. J. Wagner Finnell: There is a county sheriff and there is a county police force, and it is, of course, the duty of the sheriff to police in this area.

Unfortunately, in Alabama, maybe our laws are not as good as they should be, but the county has more or less been a caretaking institution.

The deputy sheriffs do get out, do actually get called outside, but they spend much of their time supporting the Court's issuing subpoena, that sort of thing.

For instance, our laws for the sale of alcoholic beverage limit the right to have on premises sales to the police jurisdiction for the simple reason that the city police are equipped and able to enforce that area.

Justice Potter Stewart: Does the county police have -- do they have jurisdiction within the city?

Mr. J. Wagner Finnell: Yes, sir, they do.

It's countywide.

Justice Potter Stewart: Countywide including within the city.

Mr. J. Wagner Finnell: Countywide.

As a matter of course, they take the position, "it's none of our business in the city."

"You take care of it because it's expensive."

Justice Potter Stewart: That's a matter of practical division of labor.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: But they do have jurisdiction in the city.

Mr. J. Wagner Finnell: Yes, sir, they certainly do.

Justice Potter Stewart: And is there a state police force?

Mr. J. Wagner Finnell: Sir?

Justice Potter Stewart: Is there a state police force?

Mr. J. Wagner Finnell: We have -- the state highway patrol also has jurisdiction.

Justice Potter Stewart: Only highway patrol.

Mr. J. Wagner Finnell: That's all.

Justice Potter Stewart: That is -- does it -- its name seems to imply that it has jurisdiction only of traffic offenses.

Is that correct?

Mr. J. Wagner Finnell: They have other jurisdiction.

They primarily concern themselves with traffic, yes, sir.

Justice Potter Stewart: So how --

Mr. J. Wagner Finnell: The highway patrol.

Justice Potter Stewart: I'm familiar with the State of Ohio which is very careful.

It does not have a state police force.

It has a state highway patrol with very limited jurisdiction.

Mr. J. Wagner Finnell: No, we have other police too.

We have the criminal investigation division in the State of Alabama and some of the enforcement people for their ABC Board.

They are the police-type officers of the state.

Justice Potter Stewart: Specialized.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: But there's no general state police force, as you -- I understand you to say.

Mr. J. Wagner Finnell: Other than the highway patrol, no.

Justice Potter Stewart: But its name certainly doesn't indicate that it's a general police force.

Mr. J. Wagner Finnell: In practice, it is not either, Your Honor.

Justice Potter Stewart: Right.

Justice William J. Brennan: Mr. Finnell, you mentioned liquor licenses.

I take it the location of places that may engage in the business of selling alcohol beverages outside the city itself but within the three-mile area, that's determined by the government of the city.

Mr. J. Wagner Finnell: Of course, they have to have a county license as well as a city license.

Justice William J. Brennan: But can the city prohibit a tavern from opening in a particular loc -- a particular part of that whole area?

Mr. J. Wagner Finnell: The city could prohibit the sale of liquor, a liquor license.

Under our peculiar law, the ABC Board, the state agency, is vested primarily with the control of all the alcoholic beverages.

But, the law does grant to the municipality the right to approve or disapprove the granting of an on-premises liquor license as such.

A Bill writes, "no, we could not prohibit it anywhere, except to plead with the ABC Board."

But, the liquor license, yes, it could be prohibited by the municipal corporation in that area or it could be prohibited by the ABC Board, and that's -- people often go to the ABC Board with that complaint.

Justice William J. Brennan: And, conversely, if both the city and the county grant a license for a particular location, the residents in the neighborhood have no place to complain.

Well, I guess, they complain to the county would be there.

Mr. J. Wagner Finnell: Complain to the county or they can complain to the ABC Board, which is often done, yes.

Justice William J. Brennan: State --

Mr. J. Wagner Finnell: State Board.

Justice William J. Brennan: What about decision in whether, in a particular part of the three-mile area, there should be one-way streets or what the specific speed limit should be and stop signs and that kind of thing?

That's all done by the city?

Mr. J. Wagner Finnell: The city can do that and does do it in certain cases, and I would like to -- in connection with that, Your Honor, I'd like to answer a question, too, about the annexation procedures in Alabama because I think they're tied together.

For instance, we have no right to annex proctor to the city unless, in all cases, unless some -- the majority, the property owners themselves, agree.

We have many more -- let's say, more than one, several areas where there's a highly developed industrial or business area community and down the main street on one side will be corporate limits, on the other side will be police jurisdiction.

Of course, you direct traffic there.

They're all bound by the signs and, even where it's not adjacent to the -- they do that where it's necessary to do so to some extent.

For instance, now, the industries, if you look at the interrogatories here, that looks like a whole lot of money.

It looks like a massive control when you just read what's in the code, what might be placed out there.

But, when you consider the fact that all of the industries which gather around the city have traditionally elected not to come within the city, for instance, the BF Goodrich Company recently magnanimously gave the city a half-acre to build a fire station on, which they did not to serve BF Goodrich but to serve all their corporate limits that have grown up to and around the plant.

Incidentally, that allowed the company to do away with their own individual fire fighting proceedings, but the purpose is to serve those residents of the city around there.

And so, these people get a great deal of benefit out of this police jurisdiction.

It's not a help to the city.

It doesn't -- financial help, actually --

Chief Justice Warren E. Burger: This has puzzled me a little bit, Mr. Finnell.

Ordinarily, these days, people are complaining about too much cost for too little service in terms of taxes.

Here, these people are getting a rather expensive amount of governmental service without paying for it.

Is that correct?

Mr. J. Wagner Finnell: I agree, Your Honor, and I think that explains the --

Chief Justice Warren E. Burger: It doesn't -- that doesn't decide the constitutional question.

Mr. J. Wagner Finnell: No, sir.

Chief Justice Warren E. Burger: But --

Mr. J. Wagner Finnell: It certainly explains, I think, though why there's no person that had -- pays a tax, engaged in the likes of businesses of plaintiff in this suit.

Not one of them have chosen to sue or complain about it.

Justice William H. Rehnquist: Mr. Finnell.

Mr. J. Wagner Finnell: Yes, sir?

Justice William H. Rehnquist: On page 11 (a) of the jurisdictional statement where Section 9 is set out, in the second sentence of that section where it says ordinan -- beginning, ordinances of a city or town enforcing police or sanitary regulations, is that construed in Alabama as requiring, if a city is going to apply an ordinance in a police jurisdiction, it must also apply it in the city.

It can't apply it just in the police jurisdiction?

Mr. J. Wagner Finnell: Mr. Justice Rehnquist, I've been a city attorney for over 25 years.

We have numerous ordinances on the book that say this ordinance shall be effective in the corporate limits.

That's never been questioned.

I know of no case that says we must enforce them outside.

I know of no case that rules that we can't -- the city can't limit the operation to the corporate.

I think if we were required, I think if we had the obligation, that point was brought up over here, "do you have to send the police?"

I don't think we could survive without any revenue, other than to be able to show any Alabama cases require that you not only must limit it to the reasonable cause but you must show, affirmatively show, that in adopting your budget or it would be deemed to be unconstitutional.

Justice William H. Rehnquist: But could the city con -- the converse of what you're saying, could the city decide that "we want to enforce a particular type of ordinance just in the police jurisdiction but not in the city?"

Mr. J. Wagner Finnell: I don't-- Your Honor, I would say no.

The wording of the statute itself says they shall have effect in the city and in the police jurisdiction.

I've never heard of that being done.

Chief Justice Warren E. Burger: If a liquor license or any other license is granted where the location becomes a factor and you say the City of Tuscaloosa reserves the right to issue that license, does the county licensing process get into the fixing of the location, too, or just the city?

Mr. J. Wagner Finnell: Primarily, I think it's a city.

Now, whether that's an abrogation on the part of the county of the responsibility, I'm not sure.

I think, though, it is the city is the one that makes the investigation, has the police investigation, the sanitary investigation, notifies the surrounding people and go through the whole procedure, Your Honor, and I -- whether the county could refuse, let's say they don't, I think they possibly could if they want to assume that responsibility.

Chief Justice Warren E. Burger: Does the budget of the City of Tuscaloosa segregate and identify the cost of the taxpayers of Tuscaloosa to provide these services for the appellants in this case?

Mr. J. Wagner Finnell: Since 1977, Your Honor, in the Burge case in Alabama, it will certainly do so.

That was the first time that had been an actual requirement, although Mr. Justice Livingston had indicated that some years ago in a case.

Chief Justice Warren E. Burger: There being no record on that in this case, is that a matter the Court could or did take notice of judicially as to how much services these people were getting for nothing?

Mr. J. Wagner Finnell: I think not.

I think it's probably inappropriate and outside of issues.

Chief Justice Warren E. Burger: But you can take the Court -- the District Court could have taken judicial notice of the budgets of Tuscaloosa.

Mr. J. Wagner Finnell: Take judicial notes, certainly, yes, sir.

Now --

Justice William J. Brennan: Mr. Finnell, along the same line, I'm bothered a little bit.

This case is here on a motion to dismiss, isn't it?

Mr. J. Wagner Finnell: Yes, sir.

Chief Justice Warren E. Burger: Among other things.

Justice William J. Brennan: Is there any factual controversy at all enforced?

Mr. J. Wagner Finnell: Your Honor, I would say no.

If you look at this case, and I think as both the district judge where it was heard, the single-judge and the three-judge Court did, although they did it and documented it as they went along, in the first place, the allegations of the complaint, if you strip it of the unnecessary allegations, first, there's an allegation in there that people in the City of North Port, which is an incorporated municipality and adjacent to the City of Tuscaloosa, are treated differently from people out in the police jurisdiction who are not in any other city.

That, apparently, is an attempt to show an unequal treatment.

I don't think it has any validity.

I don't think this Court would say so because, actually, these people are subject to their own rules, their own organized municipality where they're adjacent.

So, disregard that argument.

Justice William J. Brennan: Are we entitled to disregard it on a motion to dismiss?

Mr. J. Wagner Finnell: Yes, sir, I would think so.

I certainly would think so.

And, as far as the allegation for the right to vote, when these people live outside of the political subrogation, when they've never been a part of the political subrogation, when we're talking about a general municipal election, how could it be said that they have the right to vote?

This is not a special type election like Tulare or the other cases this Court went into.

This is a general municipal election.

Could it be said that because a person who lives outside of the State of Virginia, for instance, but has an abiding interest in that election could vote there or could it be said that a person living in a city of corporate -- corporate limits of the City of Tuscaloosa, who otherwise is qualified to vote, could be disqualified because he has simply no interest in the election?

The Interest Doctrine is not applicable.

These people have never been a part of the political subrogation.

They have no right to vote.

I think that, on the face of the complaint, is obvious.

If you lay that aside, lay aside the right -- the allegations that these people have a right to vote, which seems to me of course is not sought, it's alleged simply because if you deny the right to vote, if you're alleged you're denying the right to vote, you're alleged a substantial injury.

But, when you allege it only to grand jurisdiction and credibility on another matter, I would say lay that aside to vote, then you have, in the complaint, there's no attempt to challenge any particular ordinance and the brief of the appellant's state that we don't find it necessary to attack any particular ordinance or the effect of it nor do we find it necessary to show that any particular ordinance were threatened by any such particular order.

Justice William J. Brennan: Mr. Finnell.

Mr. J. Wagner Finnell: Now, that puts an issue just one question, as I understand it, and that would be this, whether or not a state statute granting any vestige of extraterritorial jurisdiction to its municipality is unconstitutional per se.

Now, that pure legal question, I think, was presented to the Courts and, although they documented their various findings beautifully as the district judge did, I think that does present a pure legal question that could be handled on a motion to dismiss, Your Honor.

Justice William J. Brennan: Mr. Finnell, on this -- again, considering the fact we have a motion to dismiss, have the plaintiffs alleged that they were denied a right to vote?

Mr. J. Wagner Finnell: Yes, sir, they did.

They said they uncon -- unlawfully -- they haven't alleged -- they haven't asked --

Justice William J. Brennan: I don't think they had.

I thought they've alleged that they were -- that not having the right to vote, their constitutional rights were being denied by being required to obey the laws that were enacted by the people who could vote.

It may be they haven't even alleged a right to vote.

Mr. J. Wagner Finnell: I had thought, Your Honor, that they allege they'd been denied the right to vote.

Of course --

Unknown Speaker: Do you think there are other --

Mr. J. Wagner Finnell: Well --

Chief Justice Warren E. Burger: It's a back-handed reference.

Mr. J. Wagner Finnell: It doesn't say they were denied.

It says that -- it's trying to state it in the abstract, "the denial of the right to vote in city elections."

Justice Potter Stewart: I guess it does.

Justice William J. Brennan: "Infringes on their constitutional right."

Justice Potter Stewart: I think it does.

Justice William J. Brennan: You think that's -- but they don't ask for the right.

Justice Potter Stewart: Yes.

Mr. J. Wagner Finnell: They certainly do not ask for the right to vote.

Maybe there's not a specific --

Justice William J. Brennan: There -- in paragraph 13, this certain individual say they've been required to purchase business license in order to engage in business, but doesn't the record show that they purchased them at half price, is that right?

Mr. J. Wagner Finnell: I beg your pardon, sir?

Justice William J. Brennan: What they pay for their business license is less than they would have to pay if they were residents of the city, isn't that right?

Mr. J. Wagner Finnell: That aspect of the ordinance was not struck down in the Alabama Supreme Court.

It cannot exceed 50 %, yes, Your Honor.

Justice William J. Brennan: It cannot exceed 50%.

Justice Potter Stewart: And it cannot exceed the cost of providing it, isn't that right?

Mr. J. Wagner Finnell: No, sir.

That's the Court's ruling.

Justice Potter Stewart: It cannot exceed the cost of providing it and, in no event, it can be -- can it be more than half of what a city resident is charged.

Mr. J. Wagner Finnell: The Court's --

Justice Potter Stewart: Isn't that it?

Mr. J. Wagner Finnell: Yes, sir.

The Court's ruling was to the reasonable cost, but they did uphold the state statute and limit it to one-half.

Justice Potter Stewart: Right.

Mr. J. Wagner Finnell: You see, the privilege light is the only vehicle afforded to collect this so-called charge to pay for the services.

It couldn't be levied against any private individual out there.

The ordinary citizen is -- really, lives in the best of two worlds.

He has some minimum police protection, some minimum fire protection, it doesn't cost him a dime, the county takes care of his schooling, takes care of his roads, he votes for all the elected officials, it sets up his balloting place.

Actually, it may not be an imperfect political situation, but I don't see that it's an unconstitutional situation under the Fourteenth Amendment.

Justice Lewis F. Powell: Will you describe again how the license tax is measured?

You mentioned the Goodrich Company.

How is the amount of the tax on it determined?

Mr. J. Wagner Finnell: In that particular place, I believe, Your Honor, for heavy industry we happen to have and still have a flat fee and they pay, as my recollection is, they pay a license to $5,000 per anum, 10,000-- it is based graduated on the volume.

Justice Lewis F. Powell: Heavy industry?

Mr. J. Wagner Finnell: It's graduated on volume, but the maximum is $5,000.

They do several --

Justice Lewis F. Powell: By volume, you mean gross sales?

Mr. J. Wagner Finnell: Gross sales, yes, sir.

Justice Lewis F. Powell: And the same tax is applied to the city except it's twice as large, isn't it?

Mr. J. Wagner Finnell: That's right.

Justice Lewis F. Powell: City businesses?

Mr. J. Wagner Finnell: Yes, sir.

Justice Lewis F. Powell: And then you'd have a category for commercial enterprises and service enterprises and the --

Mr. J. Wagner Finnell: The lasting code sets out a different category for many of the businesses.

We tried to standardize --

Justice Lewis F. Powell: Same categories in the city as within this three-mile limit?

Mr. J. Wagner Finnell: Yes, if they happen to be there.

And, once they pay that half license then they're absolutely entitled to police and fire protection and, of course, the reduction in the fire rates probably absorbs that tax and, as I say, that's probably the reason they're not plaintiffs in this action.

Justice Lewis F. Powell: The no-county Court separate and apart from the Courts that exercised jurisdiction within the city, are they?

Mr. J. Wagner Finnell: Yes, sir.

Justice Lewis F. Powell: They are?

Mr. J. Wagner Finnell: The District Court would exercise jurisdiction within the city.

Justice Lewis F. Powell: Sir?

Mr. J. Wagner Finnell: The District Court -- we have what now --

Justice Lewis F. Powell: Does the District Court have jurisdiction over the county and city, both?

Mr. J. Wagner Finnell: Yes, sir.

Justice Lewis F. Powell: So, the same Court functions in both areas.

Mr. J. Wagner Finnell: It does, yes.

We could elect --

Justice Lewis F. Powell: In Virginia, we have separate Courts in the counties from those in the cities, but you have a different system in Alabama.

Mr. J. Wagner Finnell: Yes, sir.

The Circuit Courts, we have only one set of Circuit Courts, that's the Court of original jurisdiction.

Justice Lewis F. Powell: Well, how about Misdemeanor and Small Claim Courts?

Mr. J. Wagner Finnell: Yeah, that's as I say, that's all the District Court in the county and, under the new judicial article, you have either District or Municipal Court which are the same thing.

We could elect to go to the District Court and then our Court would simply be called a District Court.

It has the same requirements of judicial training, same costs, all set for the state coo.

Justice Thurgood Marshall: These people in this area, and I know they can vote for federal and state offices, but what local offices can they vote for?

Mr. J. Wagner Finnell: Well, Your Honor, they vote for the county commissioner, that is the governing body of the county, the ones that set county taxes.

Justice Thurgood Marshall: So, they vote the same way any other county person would vote.

Mr. J. Wagner Finnell: Yes, sir.

They vote for their sheriff, they vote for their coroner, they vote for the Circuit judges, they vote for the tax assessor, the tax collector, they vote for the School Board-- County School Board.

Off-hand, I don't think -- I think they are.

They vote constables, some of the BIC Committeemen, that sort of thing.

They're all on the ballot.

Justice Thurgood Marshall: I know it's not in this case and I -- but, why are you interested in upholding this statute?

It costs you more than you get out of it.

I'm talking about speaking for the city.

Mr. J. Wagner Finnell: Your Honor, I guess it's because when you get a law case, you just don't want to get whipped.

Justice William J. Brennan: Well, obviously, you're -- Tuscaloosa must like this or they wouldn't have enacted the ordinances that extend out in the county.

Mr. J. Wagner Finnell: Your Honor, it's been going on long before I was born.

I don't--

Justice William J. Brennan: Maybe the direct costs are one thing, but the indirect intangible costs are something else.

Tuscaloosa has an interest in -- both in protecting its own citizens from encroachment of various influences from out -- from right beyond its borders.

Mr. J. Wagner Finnell: Certainly, I may have been too -- that's a very important thing and I think if we gave it up we could have serious encroachment on the citizens of the city.

I think we might go back to the old days when, rather than having a corporate limit sign, you had rural boarding houses and salons out there, and that would not be desirable.

We recently had occasion to close up a disco in the corporate limits.

Fortunately, we were able to do so.

We'd had quest of minors being sold, two people killed leaving the place, that sort of thing.

Apparently, the state was unable to do it.

We were able to do it through the like, through -- not through the liquor license, but through the withdrawal of the dancing license which effectively shut it down.

Justice William J. Brennan: Mr. Finnell, that brings up the point that, it seems to me, may be of some importance.

This is a class action.

It's alleged to be a class action.

Mr. J. Wagner Finnell: It was filed as such.

Justice William J. Brennan: And, has there been any determination by the District Court of the -- who would belong in the class and whether the interest of all the members of the class are the same or not?

I can see how many residents that the police jurisdiction might have a different view from other residents within the district, and maybe they shouldn't all be in the same class.

Mr. J. Wagner Finnell: As I understand --

Justice William J. Brennan: Has that ever been considered by the District Court?

Mr. J. Wagner Finnell: The District Court -- as I understand it, you found that a class action was not -- no lower -- see, to those -- I don't think they really considered that.

Justice William J. Brennan: Some people might like to get licenses for half price and other people might want to open a boy houses, you say.

Mr. J. Wagner Finnell: That's right.

Justice William J. Brennan: And other people might be -- there are a whole lot of interests that might conflict.

Mr. J. Wagner Finnell: That's true, Your Honor, and if you make it a class all over the state, of course, you're dealing with different ordinances in each case because we are dealing with enabling legislation here.

Justice William H. Rehnquist: Well, didn't they certify the class consisting of people within the -- presently within the police jurisdiction of Tuscaloosa but refused to class-- certify a statewide class of defendants?

Mr. J. Wagner Finnell: Judge -- I believe Judge McFaton did that, yes, Mr. Justice.

Chief Justice Warren E. Burger: But I understood the question to be directed at the possibility, if not the probability, that many of the people in this area would not want the result sought by the appellant here.

Mr. J. Wagner Finnell: I think if the people in the police jurisdiction even knew that this case were going on, some of them would be horrified.

Justice Potter Stewart: Now, are you, like your friend on the other side, going to rely on your brief or the -- your argument on the question of whether or not this Court has jurisdiction?

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: The single District Court judge, of course, held that this was not a case for a three-judge Court.

He was reversed by the Court of Appeals for the Fifth Circuit.

Mr. J. Wagner Finnell: Yes.

Justice Potter Stewart: But, nonetheless, that question is still open here.

Mr. J. Wagner Finnell: I --

Justice Potter Stewart: And, particularly, was -- that was pointed out by the Court's order.

Didn't we postpone consideration of jurisdiction in this case?

Mr. J. Wagner Finnell: We did, Your Honor, and I very frankly don't think this Court will take jurisdiction on the Moody versus Flowers and Korean versus (Inaudible).

Justice Potter Stewart: The question is whether or not we have jurisdiction.

Mr. J. Wagner Finnell: Well --

Justice Potter Stewart: If we have, we have no option.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: If we don't, we also have no option.

Mr. J. Wagner Finnell: I -- the Fifth Circuit did not treat to standing or equity jurisdiction or some of the rather more important ones.

I didn't argue standing there because the district judge had felt that the case of Tulare versus the Water District was binding, but I distinguished that in the brief and I think it's distinguishable.

Justice Potter Stewart: Well, the single District Court judge, whoever he was --

Mr. J. Wagner Finnell: Judge McFaton, Your Honor.

Justice Potter Stewart: Judge Mc Faton held very clearly, in a long discussion in the opinion that's set out in the appendix -- in the jurisdictional statement, excuse me, that this was not a case for a three-judge Court, and --

Mr. J. Wagner Finnell: Yes, he held --

Justice Potter Stewart: If it's not, then this Court doesn't have direct appellate jurisdiction.

Mr. J. Wagner Finnell: I understand that, Your Honor, but he didn't -- he ruled that they did have -- speculated it did have standing.

Justice Potter Stewart: Well, yes, but you know what he said as well as I do, or if not better.

He said that this was not a law of statewide application.

It was no more than an enabling Act.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: And --

Mr. J. Wagner Finnell: The point I was making is that the Fifth Circuit did treat on that part of it, but they did not even treat the question standing.

Justice Potter Stewart: No, but this isn't a question of standing.

It's a question of whether or not this Court has jurisdiction of this appeal.

Mr. J. Wagner Finnell: Yes and, of course, the standing goes to the jurisdiction, as I understand it.

Justice Potter Stewart: To the District Court's jurisdiction.

Mr. J. Wagner Finnell: I see my time is just about up.

There are two propositions that I do want to state that I believe ought to be central to the disposition of this case.

Certainly, they're essential to my argument.

One, that the right to vote is not at stake here.

What is at stake is the right of a state, under its police powers by statute, to extend any vestige of extraterritorial jurisdiction and, secondly, that when relief is sought under the Fourteenth Amendment, particularly in the interpretation of a state statute, it is only when an established or fundamental constitutional right is impinged upon by the state that strict judicial scrutiny, the compelling state interest test, or the choice of the least restrictive alternative is required.

Justice William J. Brennan: Mr. Finnell, may I ask, do you regard any of these defendants as state officers?

Mr. J. Wagner Finnell: I do not Your Honor.

In fact, I don't -- they may have been performing a state policy, but they're not performing a state function, as required in --

Justice William J. Brennan: If they're not state officers, that would be another reason why a three-judge Court was not required, wouldn't it?

Mr. J. Wagner Finnell: Well, it certainly would so.

I was really prepared to argue all of that, but I didn't have the opportunity.

Justice William J. Brennan: Well then, in any event, there was no service made on the Governor and the Attorney General?

Mr. J. Wagner Finnell: No, sir, none was made.

Justice William J. Brennan: Did you raise any objection along that line at all?

Mr. J. Wagner Finnell: I did not, Your Honor.

Rebuttal of Edward Still

Chief Justice Warren E. Burger: Thank you, Mr. Finnell.

Mr. J. Wagner Finnell: Thank you.

Mr. Edward Still: May it please the Court.

The --

Chief Justice Warren E. Burger: What do you have to say about the -- even though you've waived it, I'd like to have your comment on the lack of pervasive statewide impact here.

Mr. Edward Still: The law, as I pointed out in the beginning of my argument, requires that each city enforce its police ordinances and sanitary ordinances in the police jurisdiction.

It is not simply an enabling statute.

It is a statue which requires that this be done statewide.

Every city in the State of Alabama, every town in the State of Alabama must enforce its police powers in that police jurisdiction zone.

Justice William H. Rehnquist: Mr. Still, one of the cases you cited in response to a question from me earlier was Roberson against the City of Montgomery, and I have gotten that case.

And, there, the Supreme Court of Alabama describes the city's contention under Section 9, which is the state section.

The city contends that it has authority to enforce its zoning ordinances under Section 9.

Now, that sounds like an enabling Act.

Mr. Edward Still: Well, as I point out, Your Honor, that may be a poor choice of words on the part of the Alabama Supreme Court.

I think the question --

Justice William H. Rehnquist: But we're bound by it, aren't we?

Mr. Edward Still: Yes, sir, but I think the question presented in the Roberson case was whether or not zoning is included within the term "police power," and so --

Justice William H. Rehnquist: Do you agree that if this is nothing more than an enabling Act, that it's improper for a three-judge Court to decide the case?

Mr. Edward Still: No, sir, I do not because I believe even an enabling Act -- I believe that the complaint, fairly read on its face, shows that the statute is being enforced or is being utilized by numerous jurisdictions around the State of Alabama and I don't think we have the factual controversy.

It's never been put in into contention by the City of Tuscaloosa either through a motion to dismiss or through an answer which has never been filed in this case, that this does not have a statewide impact.

This is not like the case of Board of Regents versus New Left Project in which the regulation, on its very face, only applied to the Texas Regent System and not to the other colleges and universities around the state.

I appreciate the Court's attention.

Thank you very much.

Chief Justice Warren E. Burger: I have just a question for you, which I suggest you need not answer if you don't want to and you won't be prejudiced for not answering.

As I suggested to your friend, most of the complaint these days about government are paying too much and getting too little.

And, here, the people of this -- that you report to represent here, that you do represent, and the others in that area are getting a lot of free services, are they not?

Mr. Edward Still: They are getting some services, Your Honor, which perhaps might be less than if they were in the c -- costing them less than if they were in the City of Tuscaloosa.

Chief Justice Warren E. Burger: They may have to pay twice as much for the licenses, for example.

Mr. Edward Still: That, it would be.

But, they are not allowed to vote, and they consider that deprivation of the right to vote and, at the same time, the imposition of the government over them to be a commodity that doesn't have a particular price.

Chief Justice Warren E. Burger: This is a little bit like George III, running the area from a distance.

Mr. Edward Still: Something like that, Your Honor.

I've tried to stay away from Revolutionary War Rodrick in this case, but it's something like that.

Justice William J. Brennan: It's strange though that the -- if that was what is so, the Revolutionary War Rodrick strains it in drafting your periphery relief.

You didn't even ask for the right to vote.

It kind of pause your case a little bit.

Mr. Edward Still: No, sir.

And, I say, Your Honor, my clients made a choice about which they wanted and just as --

Justice William J. Brennan: They don't seem to be outraged about the inability to vote.

That's the impression that comes across.

Mr. Edward Still: No, sir, we pointed that out and if you'll read paragraph 10 of the complaint, we specifically say "we are denied the right to vote."

And then, we say in paragraph 11 --

Justice William J. Brennan: You don't say "we are denied the right," they don't even say that.

They say "the denial does such and such."

Mr. Edward Still: No, in paragraph 11, it says "the denial does such and such."

Justice Byron R. White: Paragraph 10 just points this out.

Mr. Edward Still: Yes, sir.

Justice William J. Brennan: Does it?

I'm sorry.

Mr. Edward Still: Paragraph 10 says people who live in the police jurisdiction are denied the right to vote, denied the right to participate in referenda, initiatives and recalls, that sort of thing that are allowed to other citizens in the City of Tuscaloosa.

Paragraph 11 goes on to say, as a consequence of that denial of the right to vote and the --

Justice Byron R. White: Well, paragraph 10 points out as a factual matter that these people are not allowed to vote, but you never say that there's anything wrong with being not allowed to vote.

Mr. Edward Still: I believe that we do, Your Honor, because we say that not being allowed to vote and being governed is the conflict that creates the constitutional problem in this case.

Thank you.

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

The case is submitted.

Featured:

Briscoe v. Bell - Oral Argument

Sun, 08 Aug 2010 17:07:00 +0000

Case:

Briscoe v. Bell

Media File:

76-60_19770420-argument.mp3

Related Transcript:

76-60_19770420-argument.xml

Transcript:

Argument of David M. Kendall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We have basically two points.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So we say, we are not asking...

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

Mr. Kendall you may continue.

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

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

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

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

They paid no attention to that.

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

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

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

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

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

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

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

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

And I cannot argue with the fact that this Court?

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

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

In Congress?.

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

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

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

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

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

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

Justice Byron R. White: But Congress...

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

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

Mr. David M. Kendall: Yes it was.

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

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

Justice Byron R. White: We really mean it.

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

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

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

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

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

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

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

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

It has some effect.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: Now, where is that?

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: Well, but?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: They did not have the immigration figures?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Shapiro.

Argument of Howard E. Shapiro

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

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

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

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

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

Now, the 1975 amendments contained a number of titles.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: It says, in any court.

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: In fact such has then been eliminated.

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

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

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

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

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

Which is a third sentence and what does that mean?

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

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

Unknown Speaker: Yeah, which is the third sentence?

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

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

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

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

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

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

Congress made that determination in the exercise of its powers.

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

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

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

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

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

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

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

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

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

Unknown Speaker: Reviewable.

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

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

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

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

That is not before.

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

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

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

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

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

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

Unknown Speaker: He objects to it.

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

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

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

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

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

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

Mr. Howard E. Shapiro: Not completely.

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

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

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

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

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

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

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

Unknown Speaker: I understand that.

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

Unknown Speaker: Exactly.

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: But only there.

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

Unknown Speaker: A bailout suit only in?

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

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

Unknown Speaker: 17 years isn?t it?

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: Your second alternative is certainly consistent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: 50% or something.

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

Unknown Speaker: Then it is not a reviewable.

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

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

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

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

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

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

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

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

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

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

Now, finally there is a claim about hearing.

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

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

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

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

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

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

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

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

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

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

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

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

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

Sometimes it did not.

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

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

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

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

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

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

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

Unknown Speaker: Since Texas was (Inaudible)

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

Unknown Speaker: Enjoin there two other counties?

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

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

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

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

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

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

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

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

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

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

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

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

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

Now, the Attorney General does not make that inquiry.

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

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

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

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

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

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

Thank you, Your Honor.

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

Mr. Kendall.

Rebuttal of David M. Kendall

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: A voting age.

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

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

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

Unknown Speaker: What better figures do you have?

Mr. David M. Kendall: I am sorry.

Unknown Speaker: What better figures do you have?

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

Unknown Speaker: What are those figures?

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

We submit?

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

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

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

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

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

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

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

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

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

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

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

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured: