Briscoe v. Bell Brief of the Mexican Americal Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund, Leadership Conference on Civil Rights, and Lawyers' Committee for Civil Rights Under Law, Amici Curiae in Support of the Decision Below

    IN THE

SUPREME COURT OF THE UNITED STATES

G r if f in  B. Bell ,
Attorney General of the United States, et al.,

________  Respondents.
ON WRIT OF CERTIORARI TO 

THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
LEADERSHIP CONFERENCE ON CIVIL RIGHTS, AND 

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
AMICI CURIAE IN SUPPORT OF THE DECISION BELOW

Joseph  L. R a u h , J r . V il m a  S. M a r t in e z

General Counsel, J o a q u in  A v il a

LEADERSHIP CONFERENCE A l  I. PEREZ
ON CIVIL RIGHTS MEXICAN AMERICAN LEGAL

1001 Connecticut Ave., N.W. DEFENSE AND EDUCATIONAL

OCTOBER TERM, 1976

No. 76-60

Washington, D.C. 20036
J am es  T. D a n a h e r  
A r m a n d  G. D e r f n e r  
A l e x a n d e r  D. F o r g e r  
A l b e r t  E. J enjver, J r . 
Nic h o l a s  d e B. K a t ze n b a c h  
Steph en  J . Po l l a k  
No r m a n  R e d lich

fu n d
145 Ninth Street
San Francisco, Calif. 94103

J a c k  G r e e n b e r g

Eric  Sch n a ppe r

10 Columbus Circle
New York, New York 10019

LAW YERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW

D a v id  S . T a t e l  
D a l e  F. S w a r t z

R o b e r t  A .  M u rph y  
WIl l ia m  E. C a l d w e l l  

733 - 15th Street, N.W. 
Washington, D.C. 20005
February 25, 1977

HOGAN & HA RTS ON
815 Connecticut Ave», N.W.
Washington, D.C. 20006
Attorneys for Amici Curiae.

Washington. D .C . • T H IE L  M E S S  • (202) 638-4521



TABLE OF CONTENTS 1^1

INTEREST OF AMICI CU RIAE ....................................................1
STATEMENT OF THE CASE.........................................................3
SUMMARY OF ARGUMENT....................   7
ARGUMENT

I. Texas’ arguments regarding the construction and
application of the Voting Rights Act Amend­
ments of 1975 are without merit......................................... 9

II. Congress intended the 1975 Amendments to ex­
tend the protections o f the Voting Rights Act of 
1965 to Mexican American and black voters in
T e x a s .......................................................................... • • • 12

III. The legislative record establishes that Mexican
Americans and blacks in Texas have been sub­
jected to systematic and pervasive voting dis­
crimination........................................................................... 14
A. English-only elections.......................................................15
B. Registration...................................................................... 18
C. Discrimination at the p o l ls ............................................ 21
D. Discrimination against minority candidates................25
E. Dilution of minority v o te s ............................................ 28

1. Malapportionment and gerrymandering.................. 29
2. Multi-member districting............................................ 34
3. The place system, majority runoff require­

ments, and at-large elections.................................... 36
4. Annexations and de-annexations ............................. 41

IV. Extension o f the Voting Rights Act of 1965 to 
Texas will facilitate the elimination of other
forms of economic and social discrimination.................. 45

CONCLUSION................................................................................ 50

(i)



TABLE OF AUTHORITIES Page

Cases:
Allee v. Medrano, 416 U.S. 802 (1974)....................................  21
American Party o f  Texas v. White, 415 U.S. 767

(1974), rehearing denied, 416 U.S. 1000 (1974). .............  27
Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa.

1974)............................... ........................... ..............................  16
Beare v. Smith, 321 F. Supp. 1100 (S.D. Tex. 1971), 

aff’d sub nom., Beare v. Briscoe, 498 F.2d 244 
(5th Cir. 1 974 )........................................................................  19

Briscoe v. Levi, 535 F.2d 1259 (D.C. Cir. 1976), cert, 
granted, 45 U.S.L.W. 3416 (Dec. 6, 1976) (No.
76-60).....................................................................................  . 10

Bullock v. Carter, 405 U.S. 134 (1972)....................................  25
Cisneros v. Corpus Christi Independent School Dis­

trict, 324 F. Supp. 599 (S.D. Tex. 1970), aff’d in 
relevant part, 469 F.2d 142 (5th Cir. 1972) (en
banc), cert, denied, 413 U.S. 920 (1973), rehearing
denied, 414 U.S. 881 (1973)...................................  16, 47, 49

City o f  Petersburg, Virginia v. United States, 354 F.
Supp. 1021 (D.D.C. 1972), aff’d, 410 U.S. 962
(1973 )...........................................     -41

Connerton v. Oliver, 333 F. Supp. 201 (S.D. Tex.
1 9 7 1 ) ...........................................................................................25

David v. Garrison, Civ. Ac. No. TY-73-CA-113 (E.D.
Tex. 1975)................................................................................  38

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).........................  11
Duncantell v. Houston, 333 F. Supp. 973 (S.D. Tex.

1 9 7 1 ) ...........................................     25
East Carroll Parish School Board v. Marshall, 424

U.S. 636 (1 9 7 6 ) .............................................................   2
Garcia v. Carpenter, 525 S.W.2d 160 (Tex. Sup.

Ct. 1975) ..................................................................................... 27
Garza v. Smith, 320 F. Supp. 131 (W.D. Tex. 1970), 

vacated and remanded for appeal to the Fifth 
Circuit, 401 U.S. 1006 (1971), appeal dismissed



PageCases, continued:
for lack o f  jurisdiction, 450 F.2d 790 (5th Cir.
1971) ...................................................................................... 15

Gaston County v. United States, 395 U.S. 285
(1969 )........................................................................................ 16

Gonzales v. Sinton, 319 F. Supp. 189 (S.D. Tex.
1970)..........................................................................................  25

Griggs v. Duke Power Co., 401 U.S. 424 (1971)..........................9
Graves v. Barnes I, 343 F. Supp. 704 (W.D. Tex.

1972) , aff’d in relevant part sub nom., White 
v. Regester, 412 U.S. 755 (1973)

.................................  18, 19, 25, 26, 33, 35, 46
Graves v. Barnes II, 378 F. Supp. 640 (W.D. Tex.

1974) , vacated and remanded for determination 
o f  mootness sub nom., White v. Regester, 422
U.S. 935 (1 9 7 5 ) ................................................. 26, 33, 36, 39

Graves v. Barnes III, 408 F. Supp. 1050 (W.D. Tex.
1976)..........................................................................................  36

Grovey v. Townsend, 295 U.S. 45 (1 9 3 5 )...............................  18
Guerra v. Pena, 406 S.W.2d 769 (C .C .A . Tex. 1966).............  21
Harper v. Virginia Board o f  Elections, 383 U.S. 663

(1966)..................................................................   18
Harrison v. Northern Trust Co., 317 U.S. 476 (1 9 4 3 )..........  12
Hernandez v. Texas, 347 U.S. 475 (1954 ).................................  49
Hill v. Stone, 421 U.S. 289 (1975), rehearing denied,

422 U.S. 1029 (1 9 7 5 ) ...........................................................  25
Katzenbach v. Morgan, 384 U.S. 641 (1 9 6 6 ).............................  49
Lau v. Nichols, 414 U.S. 5 6 3 (1 9 7 4 ) .................... - ..................9
Lipscomb v. Wise, 399 F. Supp. 782 (N.D. Tex.

1975) .......................................................................................  38
Mauzy v. Legislative Redistricting Board, 471 S.W.2d

570 (Tex. Sup. Ct. 1 971 ).................................................34, 35
Morris v. Gressette, prob. juris, noted, 45 U.S.L.W.

3407 (Dec. 6, 1976) (No. 75-1538)....................................  10
National Association for the Advancement o f  Colored

People v. New York, 413 U.S. 345 (1973).............................2



(iv)

National League o f  Cities v. Usery, 96 S.Ct. 2465
(1976 )................................................................................... . . 11

New York v. United States, 419 U.S. 888 (1974), affg
65 F.R.D. 10 (D.D.C. 1 9 7 4 ).................................................  16

Nixon v. Condon, 286 U.S. 73 (1 9 3 2 ).......... .. ....................... 18
Nixon v. Herndon, 273 U.S. 536 (1927).................................. 18
Pablo Puente v. City o f  Crystal City, Civ. Ac. No.

DR-70-CA-4 (W.D. Tex. April 3, 1970)...............................  25
Puerto Rican Organization for Political Action v.

Kusper, 350 F. Supp. 606 (N.D. 111. 1972),
aff’d, 490 F.2d 575 (7th Cir. 1973).......................... ..  16

Reynolds v. Sims, 377 U.S. 533 (1 9 6 4 ) .................................. 46
Rizzo v. Goode, 423 U.S. 362 (1976). ..................................... 11
Robinson v. Commissioners Court, Anderson County,

Civ. Ac. No. TY-CA-73-236 (E.D. Tex. Mar. 15,
1974), affd  in relevant part, 505 F.2d 674 (5th
Cir. 1 9 7 4 ) ................................................................... 29, 30, 49

Sabala v. Western Gillette, Inc., 362 F. Supp. 1142 
(S.D. Tex. 1973), aff’d in relevant part, 516 F.2d 
1251 (5th Cir. 1975 )..............................................................  48

Smith v. Allright, 321 U.S. 649 (1944)..................................2, 18
Smith v. Craddick, 471 S.W.2d 375 (Tex. Sup. Ct.

1971)..............................................................  34
South Carolina v. Katzenbach, 383 U.S. 301

(1966)...........................................................................  10, 11, 43
Steffel v. Thompson, 415 U.S. 452 (1 9 7 4 ) ............................  11
Sylva v. Fitch, Civ. Ac. No. SA-76-CA-126 (W.D.

Tex. Sept. 26, 1 9 7 6 )...............................................................  33
Terry v. Adams, 345 U.S. 461 (1953)......................................... 18
Torres v. SACS, 73 Civ. 3921 (S.D.N.Y. July 25,

1974)..............................................    16
Trafficante v. Metropolitan Life Insurance Co., 409

U.S. 205 (1 9 7 2 ) .............................- .........................................9
Turner v. Fouche, 396 U.S. 346 (1 9 7 0 ) .................................. 25

Cases, continued: *>a*’ e



Cases, continued:
Udall v. Tallman, 380 U.S. 1 (1965), rehearing

denied, 380 U.S. 989 (1965)...................................................... 9
United States v. Alpers, 338 U.S. 680 (1950).......................... 12
United States v. American Trucking Association, 310

U.S. 534 (1 9 4 0 ) ...................................................................... 12
United States v. Interim Board o f  Trustees o f  the 

Westheimer Independent School District, et ai,
Civ. Ac. No. H-77-121 (S.D. Tex.) (pending).................. „ 42

United States v. Texas, 252 F. Supp. 234 (W.D. Tex.),
aff’d per curiam, 384 U.S. 155 (1 9 6 6 )...............................  18

Weaver v. Commissioners Court, Nacogodoches 
County, Civ. Ac. No. TY-73-CA-209 (E.D.
Tex. Mar. 15, 1974)................................................................  30

Weaver v. Muckleroy, Civ. Ac. No. 5524 (E.D. Tex.
Jan. 27, 1975).....................................................................31, 38

Whitcomb v. Chavis, 403 U.S. 124 (1971)...............................  37
White v. Regester, 412 U.S. 755 (1973)

....................................  4, 5, 27, 28, 35, 36, 37
White v. Regester, 422 U.S. 935 (1 9 7 5 ).................................. 36
White v. Weiser, 412 U.S. 783 (1973)......................................  29
Williams v. Rhodes, 393 U.S. 23 (1 9 6 8 ).................................. 27
Younger v. Harris, 401 U.S. 37 (1 9 7 1 )...............................10, 11
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.

1973), aff’d sub nom. East Carroll Parish
School Board v. Marshall, 424 U.S. 636
(1976)........................................................................................ 37

Statutes:
28 U.S.C. §2282 ............................ .. .........................................8, 10
42 U.S.C. §1973 et seq..................................................................... 3
42 U.S.C. § 1973b ( b ) ....................................................................10
42 U.S.C.A. §1973b (b)(l)(1976 Supp.).....................................16
42 U.S.C.A. §1973b (f)(l)(1976 S u p p .)...................................... 6
42 U.S.C.A. §1973aa-la(a) (1976 Supp.).......................................6

(v)



Page

Pub. L. No. 94-73, 42 U.S.C.A. §1973 et seq. (1976
Supp.)......................................................................................5, 6

Tex. Elec. Code Ann. art. 1.08a (1976-77 Supp.)
(V ernon )...................................................................................  16

Tex. Elec. Code Ann. art. 5.11a (Vernon).................................. 19
Tex. Elec. Code Ann. art. 5.18(b) (repealed) ..........................19
Tex. Elec. Code Ann. art. 8.13 (1976-77 Supp.)

(V ernon )...................................................................................... 15
Tex. Elec. Code Ann. art. 8.15 (Vernon).....................................22
TEX. CONST, art. VI, §2 (V.A.T.C. 1 966 )....................... 19

Miscellaneous:
Brief for the Petitioners.................................................  9, 10, 17
Derfner, Racial Discrimination and The Right to Vote,

216 Vand.L.Rev. 523 (1 9 7 3 ).............................  43
Greenfield and Kates, Mexican Americans, Racial Dis­

crimination and The Civil Rights Act o f  1866, 63 
Calif.L.Rev. 662 (1 9 7 5 ).........................................................  48

Hearings Before the Subcommittee on Civil and Con­
stitutional Rights of the Committee on the Judic­
iary, House o f Representatives, 94th Cong., 1st 
Sess. (1 9 7 5 ).........................................................................passim

Hearings Before the Senate Subcommittee on Constitu­
tional Rights, Extension of the Voting Rights Act 
o f 1965, 94th Cong., 1st Sess. (1975)............................... passim

H.R. Rep. No. 94-196, 94th Cong., 1st Sess. (1975) . . . passim

“ Interim Report: The Voting Rights Act in Texas” by 
The Committee on Elections of the Texas House of 
Representatives........................................................................... 45

Kibbe, P., Latin Americans in Texas (1946).....................  48, 49
Letter from United States Attorney General to the 

General Counsel for the Secretary o f State of 
Texas, dated March 8, 1976 ....................    17

Mazmanian, Third Parties in Presidential Elections
(1974) . ...........................................................................   27

(vi)

Statutes, continued: --------



(vii)

Mittelbach, F., and Marshall, G., The Burden o f  
Poverty, Mexican American Study Project,
UCLA Advance Report V (1966)...........................................  48

Moore, J., Mexican Americans, 60 (1 9 7 0 ).................................  48
Moore, J., and Mittelbach, F., Residential Segre­

gation in the Urban Southwest, Mexican Amer­
ican Study Project, UCLA Advance Report IV 
(1966 ).......................................................................................  48

N.Y. Times, January 18, 1977 at A 1 6 .................................... 47

Miscellaneous, continued:  _5

Project Report: Dejure Segregation o f  Chicanos in 
Texas Schools, 7 Harv. Civil Rights-Civil Liberties 
L.Rev. 307 (1972)...................................................................  47

Rohan, H., The Mexican American (1968) (Staff Paper 
prepared for the United States Commission on Civil 
Rights) ........................................................................................49

S. Rep. No. 94-295, 94th Cong., 1st Sess. (1975)..................  13
Texas Senate Bill 300 (1 9 7 5 ) .................................................... 19
United States Attorney General, Letters of Objection 

Pursuant to Section 5 of the Voting Rights Act:
December 10, 1975 ...................................................
January 23, 1976 ......................................................
January 26, 1976 ......................................................
April 2, 1976 ...................................................... - • •
April 16, 1976 ...........................................................
May 24, 1976 ...........................................................
July 7, 1976...........................................................
July 27, 1976 ...........................................................
October 13, 1976 ...................................................
January 13, 1977 ................ ...............................

United States Commission on Civil Rights, “ Ethnic- 
Isolation of Mexican Americans in Public Schools 
o f the Southwest,” Report I (1970).....................

. . 20
27, 33 
. . 33 
. . 42

41
31
32 
32
42

47

United States Commission on Civil Rights, Staff 
Memorandum, Expansion of the Coverage of 
The Voting Rights Act (June 5, 1975)

.................................  15, 16, 20, 21. 22, 24. 47



United States Commission on Civil Rights, Staff 
Memorandum, Summary o f Preliminary Re­
search on the Problems of Participation by 
Spanish Speaking Voters in the Electoral 
Process (April 23, 1975)........................................................... 28

United States Commission on Civil Rights, “ Mexican 
American Education in Texas: A Function of 
Wealth,” Report IV (1972) ....................................................  47

United States Commission on Civil Rights, Mexican 
Americans and the Administration of Justice 
in the Southwest (1970).........................................................  48

United States Commission on Civil Rights, The Vo ting
Rights Act: Ten Years After (1975).............................3, 5, 43

Young, The Place System in Texas Elections, Austin,
Texas: Institute o f Public Affairs (1965)............................. 37

40 Fed. Reg. 43746 (Sept. 23, 1975)............................................6
121 Cong. Rec. (June 2, 1975) at 4712 (Remarks of

Cong. Edwards) . ..........................................................................13
121 Cong. Rec. (June 2, 1975) at 4746 (Remarks o f

Congresswoman Jordan)............................................................ 13

(viii)

Miscellaneous, continued: ^aSe



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976

No. 76-60

D o l p h  B r i s c o e ,
Governor of the State of Texas, et al.,

G r if f in  B . B e l l ,
Attorney General of the United States, ct al.,

Respondents.
ON WRIT OF CERTIORARI TO 

THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, INC 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
LEADERSHIP CONFERENCE ON CIVIL RIGHTS, AND 

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
AMICI CURIAE IN SUPPORT OF THE DECISION BELOW

INTEREST OF AMICI CURIAE
The Mexican American Legal Defense and Educational 

Fund (MALDEF) is a nonprofit corporation dedicated 
to ensuring that the civil rights of Mexican Americans 
are properly protected. With offices throughout the 
Southwest, in California, and in Washington, D.C., 
MALDEF provides legal assistance to safeguard the Mexi­
can American community’s educational, political and 
voting rights.

Protecting the voting rights of IMexican Americans has 
long been one of MALDEF’s key concerns. It has repre­
sented Mexican American voters throughout the South-

1



2

west, and provided technical assistance to the Congres­
sional committees which held hearings on the Voting 
Rights Act Amendments o f 1975. The voting rights of 
Mexican American citizens in Texas have been of particu­
lar concern to MALDEF. It has devoted substantial 
resources to monitor and implement the 1975 Amend­
ments, and through its office in San Antonio has brought 
many cases under the Act and filed other actions chal­
lenging discriminatory voting practices and procedures 
on behalf of Mexican American voters in Texas. How­
ever, MALDEF does not have sufficient resources to 
challenge all such practices. Thus, continued enforcement 
of the Voting Rights Act Amendments of 1975, which 
are here challenged by the State o f Texas, is essential if 
the voting rights o f the State’s minority citizens are to be 
fully protected.

The NAACP Legal Defense and Educational Fund, 
Inc., is a nonprofit corporation incorporated under the 
laws of the State o f New York. It was founded to assist 
Negroes to secure their constitutional rights by the prose­
cution of lawsuits. Its charter declares that its purposes 
include rendering legal services gratuitously to Negroes 
suffering injustice by reason o f racial discrimination. For 
many years attorneys of the Legal Defense Fund have 
represented minorities before this Court and the lower 
courts in litigation to secure their constitutionally pro­
tected right to vote. East Carroll Parish School Board v. 
Marshall, 424 U.S. 636 (1976); National Association for 
the Advancement o f  Colored People v. New York, 413 
U.S. 345 (1973); Smith v. Allright, 321 U.S. 649 (1944).

The Leadership Conference on Civil Rights comprises 
137 civil rights, fraternal, religious, labor, and civic 
organizations, as well as organizations for the rights of 
women and the handicapped. In its strive for civil rights 
the Leadership Conference has been especially concerned 
with the right to vote and has worked for the enactment 
of the Voting Rights Act of 1965, its successors and ex-



3

tensions, and for the full implementation and enforce­
ment of these laws in the interest of the right to vote for 
all Americans.

The Lawyers’ Committee for Civil Rights under Law is 
a nonprofit corporation organized in 1963 at the request 
of the President of the United States; its Board of 
Trustees includes thirteen past presidents of the Ameri­
can Bar Association, three former Attorneys General, and 
two former Solicitors General of the United States. The 
Committee’s primary mission is to involve private lawyers 
throughout the country in the quest of all citizens to 
secure their civil rights through the legal process. Among 
its activities has been the provision o f counsel in voting 
rights cases throughout the South; in this regard, the 
Committee has been particularly concerned with enforce­
ment of the Voting Rights Act.

The written consent of the parties, pursuant to Rule 
42(2) o f the Supreme Court of the United States, is 
filed herewith.

STATEMENT OF THE CASE

The Voting Rights Act of 1965, 42 U.S.C. §1973 et 
seq., (hereinafter the “ 1965 Act” ), has been hailed as the 
most effective civil rights legislation ever passed.1 Since 
its enactment, the number o f blacks registered to vote in 
the seven southern states covered by the Act has nearly 
doubled, and the number of black elected officials has 
increased almost tenfold.2 The Chairman of the United

*H.R. Rep. No. 94-196, 94th Cong., 1st Sess. (1975) at 4 
[hereinafter “ H.R. Rep. 94-196” ].

2Senate Hearings Before the S. Subcomm. on Constitutional 
Rights, Extension of the Voting Rights Act of 1965, 94th Cong., 
1st Sess. (1975) at 121, [hereinafter “ 1975 Senate Hearings” ].Se<? 
also United States Commission on Civil Rights, The Voting Rights 
Act: Ten Years After (1975) at 40-52 [hereinafter “ Ten Years 
After” ) .



4

States Civil Rights Commission has underscored the im­
portance o f the 1965 Act:

The Voting Rights Act, as a symbol o f national 
commitment and as a set of enforcement mechan­
isms, has contributed greatly to the changing politi­
cal circumstances o f minorities in the covered juris­
dictions. Where earlier legislation proved ineffective, 
the Voting Rights Act has made the 15th amend­
ment a living, forceful entity in many areas. Vigor­
ously enforced, the act can ensure that minority 
citizens will not be deprived of their right to partici­
pate in their own government.3
The 1965 Act, however, proved deficient in one major 

respect: it provided no protection to Mexican Americans 
and other language minorities subjected to the same 
forms of voting discrimination suffered by southern 
blacks. Like blacks, Mexican Americans have long been 
excluded from the electoral process. In White v. Regester, 
412 U.S. 755, 768 (1973), this Court affirmed the dis­
trict court’s findings that:

“ [A] cultural incompatibility . . . conjoined with 
the poll tax and the most restrictive voter registra­
tion procedures in the nation have operated to effec­
tively deny Mexican-Americans access to the politi­
cal processes in Texas even longer than blacks were 
formerly denied access by the white primary.”

English-only elections, intimidation, discriminatory en­
forcement of electoral laws, gerrymandering, multi­
member districting, and widespread use of at-large elec­
tions also have denied Mexican Americans equal access to 
the electoral process.4 In 1974 the disparity between 
Mexican American and white registration in some areas of

3 Hearings Before the Subcommittee on Civil and Constitu­
tional Rights of the Committee on the Judiciary, House of Repre­
sentatives, 94th Cong., 1st Sess. (1975) at 29 [hereinafter “ 1975 
House Hearings” ] .

4 See discussion, infra, at 28-42. See also H.R. Rep. 94-196 at 
16-23.



5

Texas was estimated at 10-15 percent,5 and Mexican 
Americans held only 2.5 percent of the State’s elected 
offices even though they comprise approximately 18 per­
cent o f its population.6 Blacks in Texas, who comprise 
approximately 12 percent o f the State’s population, have 
suffered similar treatment, with similar results.7 In 1974, 
blacks held only .5 percent of the elected offices in 
Texas.8

In January 1975 the United States Commission on 
Civil Rights recommended that Congress expand the 
1965 Act to protect the voting rights of language minor­
ity citizens.9 Following the Commission’s recommenda­
tion, Congress held hearings to examine the evidence of 
voting discrimination against language minorities. The 
voluminous hearing record documented a pattern of 
voting discrim ination against Mexican Americans 
throughout the Southwest similar to that which led to 
enactment of the 1965 A ct.10

Confronted with such evidence, Congress voted over­
whelmingly11 to enact the Voting Rights Act Amend­
ments o f 1975, Pub. L. No. 94-73, 42 U.S.C.A. § 1973 et

5 1975 House Hearings at 807-09.
6Id. at 276.
^1975 House Hearings at 276, 360-61, 367-69. See also 

White v. Regester, supra. There are more blacks living in Texas than 
in any of the southern states covered by the 1965 Act, Texas has 
almost 1.5 million minority residents over the age of 25, or three 
times the number of minorities in the largest of the southern 
covered jurisdictions. 1975 House Hearings at 360.

^1975 House Hearings at 248, 276.
9Ten Years After, at 355a.

111See generally H.R. Rep. 94-196 at 16-23. See also 19/5
Senate Hearings at 96-97, 1975 House Hearings at 399-405.

11 The House vote was 341 yeas, 70 nays; the Senate vote 77
yeas, 12 nays.



6

seq. (1976 Supp.) (hereinafter the “ 1975 Amend­
ments” ). Congress found that . . voting discrimination 
against citizens of language minorities is pervasive and 
national in scope,”  that “ through the use o f various prac­
tices and procedures, citizens o f language minorities have 
been effectively excluded from participation in the elec­
toral process,” and that “ in many areas of the country, 
this exclusion is aggravated by acts of physical, economic 
and political intimidation.”  42 U.S.C.A. § § 1973b(f)(l), 
1973aa-la(a) (1976 Supp.).

In September, 1975, the Attorney General and the 
Director o f the Census determined that the entire state of 
Texas is subject to Title II of the 1975 Amendments. 12 
As a consequence, Texas and all political subdivisions 
within it may no longer conduct English-only elections 
and, like the Southern states covered by the Voting 
Rights Act since 1965, may not enforce changes in elec­
toral laws or procedures without first establishing to the 
satisfaction o f the Attorney General or a three-judge dis­
trict court in the District of Columbia that the change 
does not have a discriminatory purpose or effect. The 
1975 Amendments also made applicable to Texas the pro­
visions of the 1965 Act which authorize the Attorney 
General to assign federal examiners and observers to 
register eligible voters and observe the conduct of elec­
tions.

Extension o f the Voting Rights Act to Texas has given 
its Mexican American and black citizens reason to hope 
that they may finally be able to participate in the elec-

1240 Fed. Reg. 43746 (Sept. 23, 1975).



7

toral process in a free and unimpaired manner, and there­
by protect their full range o f political and civil rights. 
Texas, however, now seeks to avoid this result, arguing 
that the Attorney General and Director of the Census, to 
whom Congress delegated enforcement responsibility, 
made technical errors in the interpretation and applica­
tion of the coverage formula of the 1975 Amendments. 
The decisions below, as well as the brief herein of the 
Attorney General and Director of the Census, demon­
strate that the arguments Texas makes are without merit. 
Accordingly, this brief will not repeat the Attorney Gen­
eral’s arguments. Rather, Section I discusses several addi­
tional reasons why Texas’ arguments are without merit, 
and Sections II and III demonstrate that the Attorney 
General’s interpretation of the statute is consistent with 
one of the primary purposes of the 1975 Amendments, 
namely, the extension of the protections of the Voting 
Rights Act to Mexican American and black voters in 
Texas. Finally, Section IV demonstrates that extension of 
the Act to Texas will better enable its minority citizens 
to eliminate discrimination in education, housing and 
other areas.

SUMMARY OF ARGUMENT

The brief for the Attorney General and Director of the 
Census demonstrates that petitioners’ arguments regard­
ing the construction and application of the Voting Rights 
Act Amendments o f 1975 are without merit. The con­
struction of the statute by the Attorney General and the 
Director of the Census should be given great deference 
because Congress has delegated to them responsibility for 
enforcing it. Section 4(b) of the statute expressly pre­
cludes judicial review of findings of fact by the Attorney 
General and the Director o f the Census made to deter­
mine which jurisdictions are covered by the 1975 Amend­
ments. This Court does not have jurisdiction to hear



8

petitioners’ constitutional argument because it was not 
presented to a three-judge district court as required by 
28 U.S.C. §2282.

The Attorney General’s construction of the 1975 
Amendments implements a primary Congressional pur­
pose, namely, the extension of the protections of the 
Voting Rights Act of 1965 to minority voters in Texas. 
The legislative history of the Amendments demonstrates 
that Texas was among the jurisdictions Congress intended 
to be covered by the preclearance and related provisions 
of the 1965 Act. The legislative record reveals that 
English-only elections, discriminatory enforcement of 
registration and election laws, overt discrimination 
against minority voters and candidates, and sophisticated 
devices which dilute minority votes have combined to 
exclude Mexican Americans and blacks from participa­
tion in the Texas political system. Congress found that 
these practices are strikingly similar to those which 
existed in the South prior to the enactment of the Voting 
Rights Act o f 1965. As in the South, case-by-case litiga­
tion challenging voting discrimination in Texas has not 
been effective; political jurisdictions intent on discrimina­
tion have either ignored court decrees or evaded them by 
adopting new but equally discriminatory practices. For 
these reasons, Congress intended to extend the provisions 
of the Voting Rights Act to Texas. Thus, petitioners’ 
arguments, which if accepted would exclude it from the 
Act’ s coverage, should be rejected.

Extension o f the Voting Rights Act to Texas will help 
to eliminate other forms o f discrimination. Mexican 
Americans in Texas have long suffered discrimination in 
education, housing, employment and law enforcement. 
Congress recognized that these forms of discrimination 
can best be eliminated by guaranteeing Mexican Ameri­
cans the right to vote and an equal opportunity to partici­
pate in the State’s political system.



9

ARGUMENT

I .

TEXAS’ ARGUMENTS REGARDING THE CONSTRUC­
TION AND APPLICATION OF THE VOTING RIGHTS
ACT AMENDMENTS OF 1975 ARE WITHOUT MERIT.

Texas contends that the Attorney General miscon­
strued the phrase “ test or device”  as used in Section 4(b) 
by failing to consider the factors set forth in Section 4(d) 
relating to suits to terminate coverage. Brief for the Peti­
tioners at 13-17 (hereinafter “ Pet. Br,” ). It also contends 
that the Director of the Census misconstrued the phrase 
“ such persons” as used in Section 4(b) to mean voting 
age citizens rather than registered voters. Pet. Br. at 8-13.

As the Attorney General’s brief shows, judicial deci­
sions and the legislative history o f Section 4(b) establish 
that these arguments are without merit. The Attorney 
General’s and Director of the Census’ construction of 
Section 4(b) is especially important because Congress has 
delegated to them responsibility for enforcing the Act. 
This Court has stated that “ When faced with a problem 
of statutory construction, this Court shows great defer­
ence to the interpretation given the statute by the offi­
cers or agency charged with its administration.” Udall v. 
Tallman, 380 U.S. 1, 16 (1965), rehearing denied, 380 
U.S. 989 (1965).13 Such deference is particularly appro­
priate where, as here, the enforcing agencies’ construction 
of the statute is consistent with their prior practices. Traf- 
ficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 
210 (1972); Lau v. Nichols, 414 U.S. 563, 571 (1974) 
(Stewart, J., concurring).

Texas also contends that, assuming the Director of the 
Census correctly construed Section 4(b), he improperly

D Accord, Griggs v. Duke Power Co., 401 U.S. 424, 433-34
(1971).



10

applied it in determining the number o f voting age citi­
zens in the state by miscounting the number of non­
citizens of voting age. Pet. Br. at 22-26. This argument, 
however, disregards the last sentence of Section 4(b), 
which states:

The determination or certification of the Attorney 
General or o f the Director o f the Census under this 
section . . . shall not be reviewable in any court and 
shall be effective upon publication in the Federal 
Register. [42 U.S.C. §1973b(b)].

In South Carolina v. Katzenbach, 383 U.S. 301, 322 
(1966), this Court upheld the constitutionality of this 
provision, and emphasized that it precludes judicial re­
view of Census Bureau statistical findings like those Texas 
now challenges.14

Finally, Texas argues that the principles of Younger v. 
Harris, 401 U.S. 37 (1971), and related cases entitled it 
to a predetermination hearing. Pet. Br. at 18-21, 26-28. 
The Court o f Appeals properly rejected this argument 
because it amounted to a constitutional challenge to the 
Voting Rights Act which could only be heard by a three- 
judge court pursuant to 28 U.S.C. §2282. Briscoe v. 
Levi, 535 F.2d 1259, 1265-66 (D.C. Cir. 1976).

Even if this Court had jurisdiction to hear petitioners’ 
constitutional challenge, it is important to note that the 
cases Texas cites neither limit Congress’ authority under

14It should be noted that the scope of review issues presented 
in this case are different than those presented in Morris v. Gres- 
sette, prob. juris, noted, 45 U.S.L.W. 3407 (Dec. 6, 1976) (No. 
75-1538). Morris involves issues regarding the scope o f review 
o f Attorney General determinations pursuant to the preclearance 
provisions o f Section 5, whereas this case involves initial coverage 
determinations pursuant to Section 4(b). Section 5, unlike Section 
4(b), does not in any way limit the scope o f judicial review.



11

the Fourteenth and Fifteenth Amendments to protect 
the voting rights of racial and language minorities, nor 
provide any basis for Texas’ assertion that it was entitled 
to a predetermination hearing. For example, Younger v. 
Harris, supra, involved the power of federal courts to 
enjoin state court proceedings, and by its terms has no 
applicability to situations where state court proceedings 
are not pending. Steffel v. Thompson, 415 U.S. 452 
(1974); Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).

In National League o f Cities v. Usery, 96 S.Ct. 2465 
(1976), upon which petitioners also rely, this Court held 
that Congress may not wield its power under the Com­
merce Clause to enact statutes which “ impair the States’ 
‘ability to function effectively within a federal system,’ ” 
96 S.Ct. at 2474, so as to ‘ “ devour the essentials of state 
sovereignty,” ’ 96 S.Ct. at 2476, unless, of course, “ the 
federal interest is demonstrably greater”  under a “ balan­
cing approach.”  96 S.Ct. at 2476 (Blackman, J., con­
curring). National League o f Cities has no appli­
cability where, as here, Congress has exercised its 
authority under the Fourteenth and Fifteenth Amend­
ments to protect the voting rights of minorities in Texas 
and elsewhere against well-documented, widespread 
attack. This Court has held that the extension of similar 
protections to black voters in the South does not un­
constitutionally infringe state sovereignty. South Carolina 
v. Katzenbach, supra. Moreover, twelve years of experi­
ence since the enactment o f the Voting Rights Act 
demonstrates conclusively that it has not “ impair [ed] the 
[states’ ] ability to function effectively within a federal 
system.”  In fact, federal laws guaranteeing voting equal­
ity preserve the federal system and protect the sover­
eignty of the people.

Similarly, nothing in Rizzo v. Goode, 423 U.S. 362 
(1976), affects the power of Congress to enact legislation 
under the Fourteenth and Fifteenth Amendments. That



12

decision merely overturned a federal court injunction 
which this Court held ran against city officials who had 
not themselves committed any constitutional violation. 
Here, however, Congress has acted to protect the voting 
rights o f Mexican Americans and other language minori­
ties, and has limited the applicability of the statute to 
those jurisdictions where severe voting discrimination has 
been documented.

II.

CONGRESS INTENDED THE 1975 AMENDMENTS TO 
EXTEND THE PROTECTIONS OF THE VOTING RIGHTS 
ACT OF 1965 TO MEXICAN AMERICAN AND BLACK 
VOTERS IN TEXAS.

It is a well accepted principle o f statutory construction 
that courts interpret legislation to effectuate Congress’ 
intent. In United States v. American Trucking Associa­
tion, 310 U.S. 534, 542 (1940), this Court held that, “ In 
the interpretation o f statutes, the function of the courts 
is easily stated. It is to construe the language so as to give 
effect to the intent o f Congress.” 15

The legislative history of the 1975 Amendments 
demonstrates that Congress intended to extend the pro­
tections o f the 1965 Act to Mexican American voters in 
the Southwest, and that it was particularly concerned 
about widespread voting discrimination in Texas. The Re­
port o f the House Judiciary Committee states:

The state o f Texas . . . has a substantial minority 
population, comprised primarily o f Mexican Amer­
icans and blacks. Evidence before the Subcommittee 
documented that Texas also has a long history of dis­
criminating against members o f both minority

15Accord., United States v. Alpers, 338 U.S. 680 (1950); Harri­
son v. Northern Trust Co., 317 U.S. 476 (1943).



13

groups in ways similar to the myriad forms of dis­
crimination practiced against blacks in the South. . . .  
Outright exclusion and intimidation at the polls are 
only two of the problems they face. . . .The central 
problem documented is that of dilution of the vote 
. . . .  As one witness noted, ‘As the Mexican American 
or Black voter appears to threaten potentially local 
power structures, a wide variety of legal devices are 
employed to intimidate, exclude and otherwise deny 
voting rights to minority citizens.’ 16

The House Report further indicates that voter turnout in 
Texas in recent Presidential elections has been below 50% 
of the voting age population, and that “ the only reason 
the state was not covered by the Voting Rights Act of 
1965 or by the 1970 Amendments was that it has em­
ployed restrictive devices other than a formal literacy re­
quirement.” 17

The House Report,18 various tables included in the 
record,19 and numerous statements during the Congres­
sional debates20 indicate that Texas was among the juris­
dictions Congress intended would be covered by Title II 
of the 1975 Amendments.21 The House Report also

16H.R. Rep. 94-196 at 17-19. The Report of the Senate 
Judiciary Committee on the Voting Rights Act Amendments of 
1975 is virtually identical to the House Report. S. Rep. No. 
94-295, 94th Cong., 1st Sess. (1975).

17H.R. Rep. 94-196 at 17.
18/d. at 24.
19E.g„ id, at 62-63.
20See, e.g., 121 Cong. Rec. (June 2, 1975) at 4712,jRemarks of 

Cong. Edwards); Id. at 4746 (Remarks of Congresswoman Jordan).
21 The legislative record also indicates that Congress intended 

Title II coverage to be triggered for the entire state of Alaska, 
certain counties in California, and certain areas of Arizona, Florida, 
Colorado, New Mexico, Oklahoma, New York, North Carolina, 
South Dakota, Utah, Virginia and Hawaii. H.R. Rep. 94-196 at 24.



14

states that Congress intended to reserve Title II coverage 
for those jurisdictions where “ severe voting discrimination 
was documented.” 22 As shown below, the legislative 
record contains extensive evidence of severe voting dis­
crimination against Mexican Americans and blacks in 
Texas. Thus, in order to effectuate Congress’ intent, as 
well as for the reasons set forth in the Attorney General’s 
brief, the arguments Texas makes, which if accepted 
would exclude it from the coverage of Title II, should be 
rejected.

III.

THE LEGISLATIVE RECORD ESTABLISHES THAT 
MEXICAN AMERICANS AND BLACKS IN TEXAS HAVE 
BEEN SUBJECTED TO SYSTEMATIC AND PERVASIVE 
VOTING DISCRIMINATION.

The legislative record reveals voting discrimination in 
Texas on a scale paralleling that which existed in the 
South prior to the enactment of the 1965 Act. English- 
only elections, discriminatory enforcement of registra­
tion and election laws, overt discrimination against mi­
nority voters and candidates, and sophisticated devices 
which dilute minority votes have combined to exclude 
Mexican Americans and blacks from participation in the 
Texas political system. The record also demonstrates 
that widespread voting discrimination persists in Texas 
notwithstanding the fact that many discriminatory prac­
tices have been invalidated by federal courts; like the 
southern states, Texas has evaded the effect of court 
orders by adopting new modes o f discrimination.

at 3. Title II incorporates the preclearance provisions of 
Section 5, authorizes the employment of federal examiners and 
observers by the Attorney General, and requires bilingual elections. 
Title III of the 1975 Amendments, which applies in areas where 
“ discrimination was less egregious,”  merely requires bilingual elec­
tions. Id.



15

A. English-only elections

The 2.2 million Mexican Americans in Texas comprise 
approximately eighteen percent of the State’s population. 
An estimated 50 percent of the Mexican American popu­
lation speak only Spanish, and an estimated 90 percent 
speak Spanish at home. Nevertheless, until 1975, Texas 
printed all registration and other electoral materials, in­
cluding ballots, in the English language only.24 To make 
matters worse, Texas statutes long prohibited assistance 
at the polls to Spanish speaking citizens and others illit­
erate in English. In Garza v. Smith, 320 F. Supp. 131 
(W.D. Tex. 1970), vacated and remanded for appeal to 
the Fifth Circuit, 401 U.S. 1006 (1971), appeal dismissed 
for lack o f  jurisdiction, 450 F.2d 790 (5th Cir. 1971), 
the court invalidated these statutes, stating:

We cannot perceive how exercise of the ‘ funda­
mental right to vote,’ which Texas undeniably grants 
to all illiterates who meet the qualifications pre­
scribed by the state constitution, can be more than 
an empty ritual if the right itself does not include 
the right to be informed of the effect that a given 
physical act of voting will produce. [320 F. Supp. 
at 137] .

Despite the Garza decision and the fact that Texas stat­
utes now require that assistance be given non-English 
speaking and illiterate voters,25 election officials in a 
number of Texas counties continue to refuse to provide 
or allow it.26 Congressional witnesses testified that these

2^1975 House Hearings at 804.

2AId. at 806.
^T ex. Elec. Code Ann. art. 8.13 (1976-77 Supp.) (Vernon).

^United States Commission on Civil Rights, Staff Memoran­
dum, Expansion of the Coverage of the Voting Rights Act, 21-23

[footnote continued]



16

practices have impaired the voting rights of Texas citizens 
illiterate in English just as effectively as literacy tests long 
abridged the voting rights of southern blacks.27 This 
testimony is substantiated by federal court decisions 
which have struck down English-only elections in areas 
where substantial numbers o f non-English speaking voters 
reside.28

Texas now argues that a newly enacted bilingual elec­
tion statute29 has corrected the discriminatory impact of

(June 5, 1975), [hereafter “June 1975 CRC Staff Memorandum” ] ; 
1975 House Hearings at 819. The June 1975 CRC Staff Memoran­
dum was prepared at the request of Senator Tunney, Chairman of 
the Subcommittee on Constitutional Rights of the Senate Judiciary 
Committee.

27E.g., 1975 House Hearings at 78, 369, 806.
2%See, e.g., Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa. 

1974); Torres v. SACS, 73 Civ. 3921 (S.D.N.Y. July 25, 1974); 
Puerto Rican Organization For Political Action v. Kusper, 350 F. 
Supp. 606 (N.D. 111. 1972), aff’d,490 F.2d 575 (7th Cir. 1973). See 
also New York v. United States, 419 U.S. 888 (1974), aff’g 65 
F.R.D. 10 (D.D.C. 1974) (an election conducted only in English 
where significant concentrations of Spanish speaking voters reside 
is a discriminatory “ test or device” ). The discriminatory impact of 
English-only elections in Texas is caused in part by the segregated 
and unequal education provided Mexican Americans. Infra, at 
46-47. In enacting the 1975 Amendments, Congress found that:

Citizens of language minorities . . . are from environments in 
which the dominant language is other than English. In addi­
tion they have been denied equal educational opportunities 
by state and local governments, resulting in severe disabilities 
and continuing illiteracy in the English language. 42 U.S.C.A.
§ 1973b(b)(l) (1976 Supp.).

The legislative record and judicial decisions establish that 
these conditions are particularly serious in Texas. E.g., 1975 House 
Hearings at 803-04, 864; Cisneros v. Corpus Christi Independent 
School District, 324 F. Supp. 599 (S.D. Tex. 1970), aff’d in rele­
vant part, 469 F.2d 142 (5th Cir. 1972) (en banc),cert, denied, 413 
U.S. 920 (1973), rehearing denied, 414 U.S. 881 (1973). In <Gas- 
ton County v. United States, 395 U.S. 285 (1969), this Court 
recognized the relationship between education disparities and 
voting discrimination.

79Tex. Elec. Code Ann. art. 1.08a (1976-77 Supp.) (Vernon).



17

English-only elections. Pet. Br. at 14. However, Congress 
viewed the use of English-only elections as evidence of 
prior discrimination requiring the application of the 
Voting Rights Act. The fact that Texas now claims to 
have ended English-only elections no more eliminates the 
need for the application of the Act to it than the end of 
literacy tests eliminated the need for the Act in the 
South.

In any event, several witnesses testified that the bi­
lingual election law was passed to dissuade Congress from 
extending the Voting Rights Act to the state, 30 and as 
drawn provides little if any assistance to Spanish speaking 
voters. For example, Congresswoman Jordan testified that 
the law exempts from its requirements 102 of Texas’ 254 
counties and “ countless precincts within the remaining 
counties if the precinct contains less than 5% of persons 
of Spanish origin. Nobody knows how many Mexican 
Americans are passed over by this exclusion.” 31 Con­
gresswoman Jordan also emphasized that “ . . . more 
importantly, by excluding precincts within counties from 
coverage, local officials are provided an incentive to 
gerrymander precinct lines . . . and thereby escape the re­
quirement that bilingual ballots be provided.” 32

3(~* 1975 Senate Hearings at 457, 462-63, 913.
31Id. at 246.
32Id. By letter dated March 8, 1976, to the General Counsel for 

the Secretary of State of Texas, the Attorney General indicated 
that he would not object to implementation of the Texas bilingual 
election law. The letter notes, however, that Section 4(f)(4) of the 
Voting Rights Act applies to the entire State of Texas, and requires 
that effective bilingual materials and assistance be provided at all 
stages of the electoral process and within all Texas counties, “ in­
cluding those that are allowed, but not mandated, to comply with 
the provisions of the Texas bilingual election law.”  Another 
Congressional witness testified that subdivision 2(c)(3) of the 
Texas Bilingual Election Statute:

[footnote continued]



18

B. Registration
The history o f registration in Texas provides stark evi­

dence of systematic efforts to ignore and evade the effect 
of judicial decrees entered to remedy voting discrimina­
tion against Mexican Americans and blacks. The process 
began several generations ago when it took five lawsuits 
over a twenty-five year period to eliminate the white 
primary.33 But those decisions did not end the State’s 
effort to exclude minorities from the electoral process. In 
1966, Texas was one o f the few states which still imposed 
a poll tax. In United States v. Texas, 252 F. Supp. 234 
(W.D. Tex.), aff’d per curiam, 384 U.S. 155 (1966), the 
tax was invalidated;34 the district court found that the 
tax had been enacted to disenfranchise minority citizens. 
252 F. Supp. at 245.

In the wake o f this decision, the Texas legislature 
enacted what one federal court has described as “ the 
most restrictive voter registration procedures in the 
nation. . . .”  Graves v. Barnes I, 343 F. Supp. 704, 
731 (W.D. T ex. 1972), affd  in relevant part sub nom., 
White v. Reg ester, supra. This new law required

. . . provides that ballots can either be printed in bilingual 
form or, at the decision of local officials, the election ma­
terials could continue to be printed only in English if a trans­
lation ballot were posted. . . .
. . .  it is quite common to hold more than one election at the 
same time — thus requiring the voter to consider as many as 
three or more separate ballots. There was great concern on 
the part o f the Mexican American leaders . . . that this post­
ing alternative would only add to the confusion present on 
Election Day. [1975 Senate Hearings at 456].
33Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 

286 U.S. 73 (1932); Grovey v. Townsend, 295 U.S. 45 (1935); 
Smith v. Allright, 321 U.S. 649 (1944); Terry v. Adams, 345 U.S. 
461 (1953).

34See Harper v. Virginia Board o f  Elections, 383 U.S. 663 
(1966).



19

annual registration and prescribed a four-month registra­
tion period ending nine months prior to November elec­
tions.35 In Beare v. Smith, 321 F. Supp. 1100 (S.D. Tex. 
1971), aff’d sub nom., Beare v. Briscoe, 498 F.2d 244 
(5th Cir. 1974), these requirements were held to violate 
the equal protection clause because they disenfranchised 
over a million Texans otherwise qualified to vote. 321 
F. Supp. at 1108. See also Graves v. Barnes I, supra.

Following Beare v. Smith, the Texas registration law 
was again modified, this time to authorize an automatic 
three-year registration renewal whenever a voter voted in 
a state or county election.36 The law also required that 
notice be sent to all persons whose registration was ex­
piring, but witnesses testified that the reregistration 
forms were in English only, and that a high proportion 
of Mexican Americans were required to reregister because 
past discrimination had inhibited them from voting.37

In 1975, after the Voting Rights Act was extended to 
Texas, the state again amended its registration procedures 
to require a purge of all currently registered voters.38 
The purge was never implemented because the Attorney 
General, acting pursuant to Section 5, objected on the 
ground that it would have a discriminatory impact on 
blacks and Mexican Americans. The letter of objection 
states:

. . . We cannot conclude that the effect of the total 
purge to initiate the reregistration program will not 
be discriminatory in a prohibited way.
With regard to cognizable minority groups in Texas, 
namely, blacks and Mexican Americans, a study of

35TEX. CONST, art. VI, §2 (V.A.T.C.) (1966); Tex. Elec. 
Code Ann. art. 5.11a (Vernon).

36Tex. Elec. Code Ann. art. 5.18(b) (1975) (repealed).
37E.g., 1975 House Hearings at 806; 1975 Senate Hearings at 

745.
38Texas Senate Bill 300 (1975).



20

their historical voting problems and a review of sta­
tistical data, including that relating to literacy, dis­
closed that a total voter registration purge under 
existing circumstances may have a discriminatory 
effect on their voting rights. Comments from in­
terested parties as well as our own investigation, 
indicate that a substantial number o f minority regis­
trants may be confused, unable to comply with the 
statutory registration requirements of Section 2, or 
only able to comply with substantial difficulty. 
Moreover, representations have been made to this 
office that a requirement that everyone register 
anew, on the heels o f registration difficulties experi­
enced in the past, could cause significant frustration 
and result in creating voting apathy among minority 
citizens, thus, erasing the gains already accomplished 
in registering minority voters.39
Finally, numerous witnesses testified that Mexican 

Americans and blacks in Texas are subjected to discrim­
inatory treatment by local registrars. The abuses de­
scribed include failure to place the names of duly regis­
tered minorities on the voting lists, unavailability of voter 
registration applications for registration drives, refusals to 
appoint minorities as deputy registrars,40 and discrimina­
tory enforcement of residence requirements.41

39Letter of objection dated December 10, 1975.
40E.g., 1975 House Hearings at 854; 1975 Senate Hearings at 

245, 767, 1004-1007. See also H.R. Rep. 94-196 at 16; June 1975 
CRC Staff Memorandum at 21-24.

41E.g., 1975 Senate Hearings at 245-46, 947-49. Texas courts 
have characterized residency as an “ elastic”  concept which is 
extremely difficult to define and dependent primarily upon the 
intention o f the applicant. This “ elasticity,”  coupled with the 
presumption under Texas law that decisions of local officials

[footnote continued]



21

C. Discrimination at the polls
Civil Rights Commission reports and other testimony 

document widespread physical and economic intimida­
tion of minority voters. Again and again, witnesses indi­
cated that official harassment and fear of economic 
reprisals deter minority voting as well as registration in 
Texas.42

Civil Rights Commission observers reported physical 
intimidation and harassment of minority poll watchers 
and voters, and instances of police officers making “ ex­
cessive and unnecessary appearances” at predominantly 
Mexican American precincts and threatening Mexican 
American voters.43 After Mexican Americans in Pearsall 
had conducted a drive to encourage absentee voting, the 
sheriff “ went to the homes o f the Mexican Americans 
who had voted or were going to vote absentee intimi­
dating them by warning that they had to be out of the 
area on election day. . . d’44 Law enforcement officers in 
Pearsall have also frequented predominantly Mexican 
American precincts and taken pictures of those voting.45

Other witnesses described economic intimidation of 
minority voters, including threatened loss of jobs, credit, 
and business.46 A telegram to the Department of Justice 
from the Chairman of the Texas Advisory Committee to

will be overturned only if contestants meet a heavy burden of 
proof, facilitates discriminatory application of registration require­
ments. See Guerra v. Pena, 406 S.W.2d 769 (C.C.A. Tex. 1966).

^E .g ., 1975 House Hearings at 483-85, 521-23, 819-20, 
853-56; 1975 Senate Hearings at 751-54; 967-71; H.R. Rep. 
94-196 at 18.

43June 1975 CRC Staff Memorandum at 24-28.
441975 House Hearings at 522. See also 1975 Senate Hear­

ings at 947.
45 1975 Senate Hearings at 948. See also Allee v. Medrano,

416 U.S. 802 (1974).
46E.g., 1975 House Hearings at 521-22.



22

the Civil Rights Commission stated that the Committee 
had received complaints that “ voters have been eco­
nomically intimidated by threats of financial loss for 
failure to support certain candidates.” 47 48 The Civil Rights 
Commission study o f Uvalde County reported that fear 
of job loss and reduction o f welfare benefits is a major

J  . . .  4Qdeterrent to Mexican American political participation. 0
Economic and physical intimidation of minority voters 

is facilitated by certain features of Texas election law, 
including the often unbridled discretion vested in local 
officials. A former Texas Secretary o f State noted:

The underlying problem is economic or physical 
intimidation at the local level o f minority voters 
who are predominantly in lower income groups. 
Texas statutes place all election duties upon local 
officials. Even if the Secretary of State has access to 
information concerning intimidation or improper 
influence of a voter, the office has no statutory 
authority to take even minimal action. In addition, 
the [state] Attorney General can intervene only 
where irregularities involve more than one coun­
ty.49
Other witnesses testified that a Texas “ stub law”  

which requires voters to sign a ballot stub facilitates elec­
tion challenges which intimidate Mexican American and 
black voters.50 The testimony describes the opening of

471975 House Hearings at 819.
48June 1975 CRC Staff Memorandum at 33.
491 9 75 Senate Hearings at 247-48. See also n. 41, supra.
50Texas Election Code Ann. Art. 8.15 requires that a voter sign 

a ballot stub containing a serial number corresponding to the serial 
number on the ballot. The stubs and ballots are deposited in 
separate boxes. If an election is challenged both boxes may be 
opened and the stubs used to trace ballots to the voters who cast 
them.



23

ballot boxes, the subpoenaing of minority voters, and the 
tracing of their votes followed by economic reprisals, all 
of which have a chilling effect on minority political par­
ticipation.51 In Pearsall, for example, a petition chal­
lenging election results stated precisely the number of 
votes being challenged and the reasons each vote was 
allegedly invalid. Specific allegations of this type could 
not have been made unless the ballot box had already 
been opened. Approximately 200 Mexican American 
voters were subpoenaed (no whites were subpoenaed), 
and the challenged votes were ultimately declared in­
valid.52 In the course of a similar election challenge in 
Cotulla over 150 voters were subpoenaed, all of whom 
were Mexican Americans.53 The discriminatory impact 
of such election challenges was summarized during the 
Congressional hearings:

The manner in which these investigations are carried 
out as perceived by the Mexican American com­
munities involved has the effect of discouraging 
further registration and voting. The effect is intimi­
dation—the result is fear of exercising the constitu­
tionally guaranteed right to vote.54
The legislative record also indicates that the stub law 

operates as a literacy test because it requires voters to 
sign their ballot stubs. One witness described an election 
won by a Mexican American candidate by 65 votes. The 
results were challenged, the stub box opened, a deter­
mination made that approximately 100 Mexican Ameri-

s lE.g., 1975 House Hearings at 363-64, 485, 521-22; 1975 
Senate Hearings at 731-33, 946-49.

521975 Senate Hearings at 946-47.
E.g., id. at 948-49.

4̂ 1975 House Hearings at 404.



24

can voters had signed their stubs with an “ X ,”  and the 
opposing white candidate was declared elected.55

Official intimidation, harassment, and discrimination 
infect all stages of the voting process in Texas. Election 
officials in La Salle, Uvalde and Frio Counties denied 
assistance to non-English speaking voters even after Texas 
laws were amended to require it.56 Other witnesses de­
scribed excessive demands for personal identification re­
quired only o f Mexican American voters,57 challenges to 
the residence of voters whom election officials felt might 
vote for the Raza Unida candidate, harassment of Raza 
Unida campaign workers even though they were working 
the polls outside the distance markers,58 selective invali­
dation o f ballots cast by minority voters, last minute un­
announced changes in voting times and locations,59 and 
the location of polling places in areas traditionally off- 
limits to or inconvenient for minorities. For example, in 
Jefferson County, which is approximately 25% black, 
polling places were located in a rod and gun club which 
had a totally white membership, and in a white school in 
an all-white section of a precinct.60 In Villa Coronado, 
voting officials refused to set up a polling place in a Mexi­
can American neighborhood where 75% of the district’ s

551975 House Hearings at 732.
56Id. at 818.
57E.g., id. at 810, 820; 1975 Senate Hearings at 767-69.
5&E.g., 1975 House Hearings at 820; 1975 Senate Hearings at 

741-43, 967-71. The Raza Unida party is one of three political 
parties that Texas law officially recognizes. It is supported pre­
dominantly by Mexican American voters.

5^1975 House Hearings at 810,860. See generally June 1975 
CRC Staff Memorandum at 24-27.

6°June 1975 CRC Staff Memorandum at 26.



25

population resided, thus forcing those voters to travel 
seven miles in order to cast their ballots.61

D. Discrimination against minority candidates
Mexican Americans and blacks in Texas have also been 

denied an equal opportunity to run for elective office. 
Until 1972, a filing fee discriminated against minority 
candidates just as effectively as the poll tax discriminated 
against minority voters. Over 35% of the Mexican Ameri­
cans and blacks in Texas are impoverished.62 In Bullock 
v. Carter, 405 U.S. 134 (1972), this Court invalidated 
Texas’ filing fee system on the ground that it denied less 
affluent citizens an equal opportunity to run for office. 
Several courts on similar grounds have invalidated re­
quirements that a candidate own real property within the 
district in which he or she is running.63 In Pablo Puente 
v. City o f  Crystal City, Civ. Ac. No. DR-70-CA-4 (W.D. 
Tex. April 3, 1970), the court found that a requirement 
that city council members be property owners discrim­
inated against Mexican Americans.64 Likewise in Graves 
v. Barnes I, supra, the court found that the cost o f con-

611975 House Hearings at 856. See also 1975 Senate Hearings 
at 947, where evidence was given that when the polling place in 
Pearsall, Texas was located in the Mexican American part of town, 
voting participation among Mexican Americans rose to the highest 
levels ever; when the polling place was relocated in the white sec­
tion of town, Mexican American participation dropped by 400 
votes.

6~ Infra, at 47.
63E.g., Connerton v. Oliver, 333 F. Supp. 201 (S.D. Tex. 

1971); Duncantell v. Houston, 333 F. Supp. 973 (S.D. Tex. 1971); 
Gonzales v. Sinton, 319 F. Supp. 189 (S.D. Tex. 1970). See also 
Turner v. Fouche, 396 U.S. 346 (1970).

64 A Texas law that only persons who have rendered property 
for taxation may vote in bond issue elections was invalidated in 
Hill v. Stone, 421 U.S. 289 (1975), rehearing denied, 422 U.S. 
1029 (1975).



26

ducting electoral campaigns in at-large state legislature 
races in Bexar County was so excessive that it inhibited 
the recruitment and nomination or election of Mexican 
American candidates. 343 F. Supp. at 731.

The expense o f running in at-large elections is not the 
only reason their widespread use throughout the state65 
discriminates against minority candidates. One witness 
testified that considerably fewer minority candidates 
compete in the Demo era tic primary in at-large districts 
because of a common sense realization that their pros­
pects o f winning at-large races are slim.66

Testimony also established that in nine major Texas 
counties studied, candidates most often were selected 
either by slate-making groups, such as organized labor or 
businessmen, or by a more informal process which re­
quires the candidate to have access to social, business, 
educational and professional associations.67 Minorities 
have been denied access to both processes. In Graves v. 
Barnes II, 378 F. Supp. 640, 649 (W.D. Tex. 1974) va­
cated and remanded for determination o f  mootness 
sub nom. White v. Regester, 422 U.S. 935 (1975), 
the court found that in Jefferson County endorse­
ment by a local labor organization usually leads to 
election, but that the local organization had never 
slated a black man or woman. The court noted 
“ When called upon to explain their lack of enthusiasm 
for black candidates, the local labor leaders reported to 
the state . . . [organization] and the local black com­
munity that they would not support a black person 
because o f the racial hostility of their predominantly 
white membership.”  68

6^Infra, at 37.
661975 House Hearings at 436. See Graves v. Barnes I, supra, at 

731-32.
671975 House Hearings at 436.
68The hearing record also describes a discriminatory tactic 

adopted by the City Council of Uvalde, which met and decided in



27

The long and pervasive history of discrimination 
against minority candidates by traditional, well-estab­
lished political organizations has encouraged minorities to 
establish new political parties.* 69 This development, how­
ever, has not escaped the attention of Texas officials 
intent on perpetuating discrimination against minority 
candidates and voters. After American Party o f  Texas v. 
White, 415 U.S. 767 (1974), rehearing denied, 416 U.S. 
1000 (1974), invalidated a Texas law which denied minor 
party candidates a place on absentee ballots, a new law 
was passed prohibiting minor political parties from hold­
ing primary elections. Texas reimburses the costs of con­
ducting primary elections, but not the costs of holding 
conventions. The'Attorney General objected to this new 
law because its impact would fall “ only on one party, the 
Raza Unida party, and significantly limit the opportunity 
for Mexican Americans to nominate, on an equal basis 
with others, a candidate of their choice.” 70

There is also substantial evidence of racially based cam­
paign tactics in Texas. In White v. Regester, supra, this 
Court emphasized the district court’s finding that the Dal­
las Committee for Responsible Government, a white 
dominated organization that effectively controls Demo­
cratic party slating in Dallas County, had as recently as 
1970 relied upon “ racial campaign tactics in white pre­

secret not to put on the ballot the name of a duly qualified Chi- 
cano candidate for the Council. The candidate filed an action in 
state court. The court found that his constitutional rights had been 
violated. 1975 House Hearings at 854. See also Garcia v. Carpenter, 
525 S.W.2d 160 (Tex. Sup. Ct. 1975) (arbitrary refusal to place 
Mexican American candidate’s name on the ballot as a candidate 
for mayor).

69See Williams v. Rhodes, 393 U.S. 23 (1968). See generally 
Mazmanian, Third Parties in Presidential Elections (1974).

70Letter of objection dated January 23, 1976.



28

cincts to defeat candidates who had the overwhelming 
support o f the black community.”  412 U.S. at 767. One 
Congressional witness described thirty-second spots on 
Spanish radio stations which warned Mexican American 
voters that if they did not comply with all election laws, 
they could be sent to jail or fined $500.71 Another wit­
ness said that racial campaigning was evident in nine 
major Texas counties studied, and that such campaigning 
is particularly discriminatory given racially polarized 
voting patterns in at-large election districts.72

Finally, the Civil Rights Commission advised Congress 
that it found economic and physical intimidation of 
minority candidates in Texas. One candidate who re­
ported that he had suffered harassment on the job told a 
Commission interviewer:

“ . . . you see why we have such a difficult time even 
convincing some Chicanos to file for office, the fear 
for their jobs, fear of all kinds of pressure.” 73

E. Dilution of minority votes
The hearing record also documents continuous efforts 

by Texas officials to subject minority voters and candi­
dates to “ sophisticated”  discriminatory devices such as 
malapportionment, gerrymandering, at-large elections, 
majority runoff requirements and the place system, all of 
which dilute the value of the vote. The House Judiciary 
Committee concluded that blatant intimidation and other

7^1975 House Hearings at 806.
12Id. at 454-55.

73 1975 Senate Hearings at 999. See generally United States 
Commission on Civil Rights, Staff Memorandum, Summary of Pre­
liminary Research on the Problems o f Participation by Spanish 
Speaking Voters in the Electoral Process, April 23, 1975. Num­
erous witnesses described many instances o f outright intimidation 
of minority candidates. E.g., 1975 House Hearings at 521, 826-27, 
854, 861; 1975 Senate Hearings at 735, 753-56, 774.



29

forms o f discrimination against Mexican American and 
black voters in Texas

are not the only barriers obstructing equal oppor­
tunity for political participation . . . The central 
problem documented is that o f dilution of the vote 
-arrangements by which the vote of minority elec­
tors are made to count less than the votes of the 
majority. 74

1. Malapportionment and gerrymandering

The record is replete with descriptions of malappor- 
tioned or gerrymandered electoral districts in Texas. 5 In
1969 and again in 1974 the Commissioners Court in 
Anderson County reapportioned and redistricted the 
county’s four precincts.76 In Robinson v. Commissioners 
Court, Anderson County, Civ. Ac. No. TY-CA-73-236 
(E.D. Tex. March 15, 1974, affd  in relevant part, 505
F.2d 674 (5th Cir. 1974), 77 the district court held that 
“ Since the Commissioners Court did not rely on available
1970 census data in effecting the modification of the 
precinct lines, but rather placed exclusive reliance upon 
voting registration figures, the reapportionment is dis­
torted.”  The court also found that the realignment fol­
lowed neither established census enumeration districts

”  H.R. Report 94-196 at 18.
76 Cf White v. Weiser, 412 U.S. 783 (1973), where this 

Court invalidated reapportionment of Texas’ Congressional dis­
tricts because o f an unequal distribution of population.

76The Commissioners Court of Anderson County, like Commis­
sioners Courts throughout Texas, is a legislative body for the
county and is comprised of Commissioners and a County Judge. 
Each Commissioner is elected from a separate precinct, but the 
Judge is elected at-large.

77The district court’s opinion is reprinted in the 1975 Senate
Hearings at 248.



30

nor logical boundaries. Rather, “ The Commissioners drew 
a ‘wedge’ through the greatest black concentration within 
the southwestern portion of the city of Palestine, dividing 
the black community . . . into three Commissioner pre­
cincts.”  The court concluded that the redistricting and 
reapportionment were racially motivated. The Fifth Cir­
cuit affirmed, stating:

. . . Unfortunately, the disrespect o f voting rights is 
not a recent innovation in county government in 
Texas. See generally, Graves v. Barnes, W.D. Tex. 
1972 (3 judge), 343 F. Supp. 704, aff’d in part sub 
nom. White v. Regester, 1973, 412 U.S. 755, 93 
S.Ct. 2332, 37 L.Ed.2d 314; Avery v. Midland- 
County, 1968, 390 U.S. 474, 88 S.Ct. 1114, 20 
L.Ed.2d 45. Nor, unfortunately, is unconstitutional 
dilution o f voting rights only a very old part of our 
history. See, e.g., Graves v. Barnes, W.D. Tex. 1974 
(3 judge), 378 F. Supp. 640. Caesar found Gaul 
divided into three parts. Here we are confronted 
with a County Commissioners Court which has cut 
the county’s black community into three illogical 
parts in order to dilute the black vote in precinct 
elections, acting as a modern Caesar dissecting its 
private Gaul. Such apportionment poisons our repre­
sentative democracy at its roots. Our constitution 
cannot abide it. [505 F.2d at 676].
In Weaver v. Commissioners Court, Nacogodoches 

County, Civ. Ac. No. TY-73-CA-209 (E.D. Tex. March 
15, 1974), another case discussed in the hearing record,78 
it similarly was held that an apportionment plan in 
Nacogodoches County constituted a racial gerryman­
der which “ effectively fragment [ed] black voting strength 
. . . by dividing the area of heavy black population 
. . . into separate commissioner [districts].” The 
court found a “ general lack o f responsiveness on the part

7^1975 House Hearings at 366.



31

of city and county officials in Nacogodoches to the par­
ticular lives, needs and interests of black citizens of the 
county.” 79

In Crockett County reapportionment was used to 
dilute the value of Mexican American votes. In 1974, a 
Mexican American received the Democratic nomination, 
usually tantamount to election, for a seat on the County 
Commissioners Court. The precinct from which he was 
nominated was substantially Mexican American, as was 
one other. Prior to the general election, the Commis­
sioners Court reapportioned the county on the basis of 
registered voters, not population. Since registration 
among Mexican Americans had been low, the Commis­
sioners were able to isolate practically all of the Mexican 
Americans into one Commissioner’s district, thus en­
suring that only one Mexican American would be 
elected.80

Extension of the Voting Rights Act to Texas already 
has limited malapportionment and gerrymandering of 
electoral districts. The Attorney General objected to the 
Crockett County Commissioners Court’s reapportion­
ment of its precincts. The letter o f objection states:

Our experience indicates that Mexican Americans 
generally have a lower rate of voter registration than 
do Anglos. Thus an apportionment based on regis­
tration data is likely to have a dilutive effect on the 
vote of Mexican Americans. See Eli v. Klahr, 403 
U.S. 108, 118-19 (1971) (Douglas, J., con­
curring).81

79See discussion of Weaver v. Muckleroy, Civ. Ac. No. 5524 
(E.D. Tex. Jan. 27, 1975), infra, at 38-39, for evidence of the per­
sistent efforts of Nacogodoches to dilute the value of black votes.

1975 House Hearings at 366.
Letter of objection dated July 7, 1976.



32

The Attorney General also objected to reapportion­
ment o f Commissioners Court’s precincts in Uvalde 
County, stating:

. , . According to the 1970 census, Uvalde County is 
50.7% Mexican American, 47.8% Anglo and 1.5% 
black. Information available to us indicates that the 
Commissioner Precinct 2 under the redistricting plan 
has an overwhelming concentration of Mexican 
Americans and in addition exceeds the norm of an 
ideal (population) district by a percentage o f at least 
11%. The other precincts, two o f which are sub­
stantially over-represented, apparently have devia­
tions of similar scope resulting in a total deviation 
range in excess o f 20%. Thus, it would appear that 
the precinct with the highest percentage of Mexican 
Americans is the most under-represented while at 
least two of the remaining precincts, each with evi­
dent Anglo population majorities, show deviations 
indicating over-representation.82

In addition, the Attorney General has objected to gerry­
mandered and registration-based reapportionments in 
Waller83 and Frio84 Counties, and has twice objected to 
plans submitted by the state of Texas sub districting

^Letter of objection dated October 13, 1976.
3̂Letter of objection dated July 27, 1976.

^Letter of objection dated April 16, 1976. In Padillo v. Val- 
verde County, Civ. Ac. No. 9062 (C.C.A. Tex.) an action was filed 
in 1969 in Texas District Court charging malapportionment and 
gerrymandering of Valverde County Commissioner Court pre­
cincts. Plaintiffs’ amended complaint alleged that 94% of the 
county’s population resided in one precinct and that the remain­
ing 6% o f the county’s residents lived in the other three pre­
cincts. The amended complaint also alleged that precinct lines 
had been gerrymandered to discriminate against the county’s sub­
stantial Mexican American population. The parties agreed to a re­
districting plan, and settled the matter out of court.



33

multi-member Texas House of Representative districts on 
the ground that the plans gerrymander minority areas.85 
Despite the Attorney General’s objection, the Frio 
County Commissioners announced they would conduct a 
May 1, 1976 primary election pursuant to the objection­
able plan. Mexican American voters in Frio County se­
cured a temporary restraining order enjoining the pri­
mary, Sylva v. Fitch, Civ. Ac. No. SA-76-CA-126, (W.D. 
Tex. Sept. 26, 1976), and subsequently reached an 
agreement with the County Commissioners regarding a 
new apportionment plan. The new plan was approved by 
the federal court, but the Commissioners are now at­
tempting to set it aside on appeal.

Congressional witnesses underscored the widespread 
use and discriminatory impact of malapportionment and 
gerrymandering. 86 One witness stated:

. . . There are 254 counties in Texas each electing a 
County Commissioners Court. . . . In almost every 
plan I have been asked to look into, minority politi­
cal rights have been gerrymandered in ways similar

8  ̂Letters of objection dated January 23, 1976 and January 26, 
1976. In the January 23 letter of objection, the Attorney General 
notes:

Regarding Districts 32A-32I in Tarrant County, it appears 
that portions of the new single-member districting lines are 
drawn through cognizable minority residential concentra­
tions resulting in an apportionment or fragmenting of these 
areas into four districts, only one of which has a significant 
minority population, while fairly drawn alternative district­
ing plans would avoid placing portions of the minority resi­
dential concentrations in as many districts and would result 
in two districts with significant minority populations.
See Graves v. Barnes 1 and II, supra.
8^E.g., 1975 House Hearings at 395-96, 494-95; 1975 Senate 

Hearings at 245.



34

to those documented in Anderson, Nacogodoches 
and Crockett Counties.

2. Multi-member districting 
Congress found and federal courts have held that 

multi-member districting in Texas unconstitutionally 
dilutes the value of Mexican American and black votes. 
Several courts have also found that minority votes are 
further diluted by the use in such districts (and in multi­
member districts that do not themselves have a diluting 
effect) of the place system and the requirement of a 
majority runoff. 87 88

The reapportionment plan adopted for the Texas State 
House of Representatives based on the 1970 census is 
illustrative o f the discriminatory use o f multi-member 
districting and official evasion of judicial decrees. The 
hearing record indicates that the initial plan was declared 
unconstitutional by a state district court within days 
after it was enacted.89 The Texas Supreme Court af­
firmed. Smith v. Craddick, 471 S.W.2d 375 (Tex. Sup. Ct. 
1971). Although the Texas Constitution states that in 
such a situation the state Legislative Redistricting Board 
must prepare an alternate plan of apportionment, the 
members of the Board refused to act until expressly 
ordered to do so by the Texas Supreme Court. Mauzy v. 
Legislative Redistricting Board, 471 S.W.2d 570 (Tex. 
(Sup. Ct. 1971). The court warned the Board that the use 
of multi-member districts might dilute the electoral 
rights of Mexican Americans and blacks:

In exercising its discretion as to whether to create 
multi-member districts within a single county, we

871975 Senate Hearings at 956.
88See discussion, infra, at 36-41
891975 House Hearings at 366.



35

must assume that the Board will give careful con­
sideration to the question o f whether or not the 
creation o f any particular multi-member district 
would result in discrimination by minimizing the 
voting strength of any political or racial elements of 
the voting population. [471 S.W.2d at 575].
Notwithstanding this warning, Board members ad­

mitted under oath that they did not at any point consider 
the possible effect o f multi-member districts on Mexican 
Americans or blacks.90 Instead, the Board adopted a multi­
member districting plan which was invalidated in a series 
of federal court actions. In the first of these actions, 
White v. Regester, supra, this Court affirmed the judg­
ment of a three-judge district court (Graves v. Barnes I, 
supra) invalidating multi-member districts in Dallas and 
Bexar Counties and ordering those districts to be redrawn 
into single-member districts. This Court reiterated the 
lower court’s findings regarding the history of official 
racial discrimination in Texas, Texas laws requiring a ma­
jority vote as a prerequisite to nomination, the use of a 
“ place system,”  racial campaign tactics, and the district 
court’s conclusion that “  ‘the black community has been 
effectively excluded from participation in the Demo­
cratic primary selection process,’ . . . and was therefore 
generally not permitted to enter into the political process 
in a reliable and meaningful manner.”  412 U.S. at 766- 
67. This Court also relied on the lower court’s findings 
that Mexican Americans in the Bexar community along 
with other Mexican Americans in Texas had long suf­
fered from invidious voting discrimination, and sustained 
the judgment o f the district court that:

. . . the multi-member districts, as designed and op­
erated in Bexar County, invidiously excluded Mexi­
can Americans from effective participation in politi-

9^1975 House Hearings at 366-67.



36

cal life, specifically in the election of representatives 
to the Texas House o f Representatives [412 U.S. at 
769],
On remand, multi-member districts in Tarrant, El Paso, 

Travis, Jefferson, Lubbock, McClennan, and Nueces 
Counties were found to deny Mexican American and 
black voters an equal opportunity to participate in the 
electoral process. Graves v. Barnes II, supra. In addition, 
the Galveston County multi-member district was held to 
be the result o f an unconstitutional gerrymander. Sub­
sequently, Texas adopted a new reapportionment plan 
which replaced the multi-member districts with single­
member districts. For this reason, this Court vacated and 
remanded for a determination of mootness. White v. 
Regester, 422 U.S. 935 (1975). However, before the 
district court could consider the matter the Attorney 
General objected to three gerrymandered districts con­
tained in the plan.91 Graves v. Barnes III, 408 F. Supp. 
1050, 1052 (W.D. Tex. 1976).

3. The place system, majority runoff requirements, 
and at-large elections

The foregoing multi-member districting decisions have 
not ended efforts in Texas to dilute the value of minority 
votes. Congress found that a substantial number of Texas 
jurisdictions have now adopted the place system, major­
ity runoff requirements, and at-large elections, and that 
each of these “ sophisticated”  devices abridges the voting 
rights o f Texas Mexican Americans and blacks.92

The place system requires candidates in multi-member 
districts or at-large elections to run for a specified num­
bered post. Each voter casts one vote for one candidate

See discussion, supra, at n. 85. 
92H.R. Rep. 94-196 at 18-19.



37

for each post. The system thus lends visibility to specific 
candidates in an at-large field, and makes it possible to 
“ spotlight”  minority candidates in specific match races. 
By matching minority candidates with particularly strong 
opposing candidates, minority voters are effectively pre­
vented from combining their voting strength in support of 
a candidate running at-large.93

Majority runoff and at-large election requirements like­
wise dilute the votes of minorities. Both devices are par­
ticularly discriminatory when adopted by jurisdictions 
with a substantial, but not majority, minority population. 
This is especially true when these devices are combined 
with a place system. Each tends to ensure that through 
bloc voting the white majority can elect the candidate of 
its choice, but that minority populations cannot.94

The record establishes that the at-large structure, with 
accompanying variations o f the majority runoff and num­
bered place system, is used in at least 1,300 political 
subdivisions in Texas, including all of the more than 
1,100 school districts in the state and 174 of its largest 
cities.

The House Judiciary Committee concluded that these 
devices had become particularly widespread “ in the wake 
of the recent emergence o f minority attempts to exercise 
the right to vote,”  and that their use “ . . . effectively 
den[ies] Mexican American and black voters in Texas

93 1975 House Hearings at 402, 422-23. See generally Young, 
The Place System in Texas Elections, Austin, Texas: Institute of 
Public Affairs, 1965, reprinted in part in the 1975 House Hearings 
at 986 et seq.

941975 House Hearings at 389-90, 402-03, 417-28, 1975 Sen­
ate Hearings at 488-93. See also White v. Regester, supra: Whit­
comb v. Chavis, 403 U.S. 124 (1971); Zimmer v. McKeiihen, 485 
F.2d 1297 (5th Cir. 1973), aff’d sub nom. East Carroll Parish 
School Board v. Marshall, 424 U.S. 636 (1976).

9~*1975 Senate Hearings at 462.



38

political access in terms of recruitment, nomination, elec­
tion, and ultimately, representation.”  96 This finding is 
substantiated by a number of judicial decisions reprinted 
or summarized in the legislative record. For example, 
in Lipscomb v. Wise, 399 F. Supp. 782, 790 (N.D. Tex. 
19 7 5), 97 the court held that at-large voting in Dallas 
dilutes the value o f black votes, stating:

. . .  it is clear that the present system of requiring all 
members of the Dallas City Council to run at-large 
on a city-wide basis involves dilution. In this regard 
. . . two factors are of particular significance. These 

are the existence o f past discrimination in general, 
which precludes effective participation in the elec­
toral system and a customary lesser degree of access 
to the process o f slating candidates than enjoyed by 
the white community.
. . . Meaningful participation in the political process 
must not be a function of grace, but rather is a 
matter of right.
Similarly, in David v. Garrison, Civ. Ac. No. TY-73- 

CA-113 (E.D. Tex. 19 7 5),98 the court invalidated the city 
of Lufkin’s use of at-large elections combined with a 
majority vote requirement and place system. The first 
black to run for the City Commission obtained a plurality 
of votes in the initial election, but was defeated in the 
runoff. The black candidate received total support from 
black voters but negligible support from whites. The 
court held that:

The majority place system, as utilized by the City of 
Lufkin, operates to minimize the voting strength of 
the black residents, and, coupled with the at-large 
system, tends to create a racial polarization in 
voting.

96h .R. Rep. 94-196 at 19-20.
97 Discussed in the 1975 Senate Hearings at 915. 
98Discussed in the 1975 Senate Hearings at 919.



39

The discriminatory use of a majority runoff require­
ment and place system in the context of at-large elections 
was also invalidated in Weaver v. Muckleroy, Civ. Ac. No. 
5524 (E.D. Tex. Jan. 27, 1975)." The case arose in the 
city o f Nacogodoches, which has a 15% black population. 
The court’s opinion reveals that no black had ever won a 
county-wide or city election. The city charter provided 
for a five-member commission form of government, and 
had not been amended since 1929. Since that time city 
elections had been held at-large, with the office awarded 
to candidates securing a plurality of the votes.

In the spring o f 1972, a black ran for the City Com­
mission. He came close to winning a plurality in an elec­
tion which registered the highest turnout in the history of 
Nacogodoches city elections. In June, 1972, the all-white 
City Commission proposed the first amendment to the 
city charter in 43 years, the institution of a majority 
runoff, numbered place system. The proposal was 
adopted by Nacogodoches voters.

In April 1973 another black ran for City Commis­
sioner. He won a plurality o f the votes in the first elec­
tion, but lost the runoff. At the same time, the City 
Commissioners changed the date o f election from April 
to mid-July in order to avoid the impact of the votes of 
students at a predominantly black college in the area. On 
the basis o f these facts, the district court held that the at- 
large, majority runoff, numbered place system tended to 
abridge the voting rights of black citizens, and ordered 
the institution o f single-member districts. See also Graves 
v. Barnes II, supra, 378 F. Supp. at 659.

The hearing record contains additional testimony re­
garding the discriminatory purpose and effect of at-large,

"Discussed in the 1975 House Hearings at 400-401; re­
printed in 1975 Senate Hearings at 252-54.



40

majority runoff, place system elections. One witness testi­
fied that, as a consequence o f the widespread use of at- 
large elections, “ you will find little or no representation 
in the so-called impact area, the heavily concentrated 
Mexican American, black and minority areas.” 100 A study 
included in the record concluded that fear of bloc voting 
by minority voters caused several Texas communities to 
adopt the place system:

A member of one city charter commission admits 
that the place system was written into the charter 
“ to prevent minority groups from voting against all 
candidates but one in order to ensure their man got 
the most votes.”  An individual who helped to draft 
another charter candidly acknowledged that the 
place system was selected so that the Negro minor­
ity in his city would be unable to elect a council­
man.100 101

Congress was informed that the preclearance pro­
visions of Section 5 would protect minority voters from 
the discriminatory use of at-large, majority runoff, and 
numbered place rules.102 This prediction has proven true. 
To date, the Attorney General has issued numerous let­
ters of objection barring implementation of such devices. 
Submissions objected to were filed by independent school 
districts, municipalities, and Commissioners Courts. The 
Attorney General’s objection to the designation o f a 
place system and the adoption of a majority vote re­
quirement by the Hereford Independent School District 
is illustrative. The letter of objection notes:

With respect to the designation o f election by place 
and the majority vote requirement . . . [w] e have 
noted particularly the growing minority population

100 1975 House Hearings at 483.
101 1975 Senate Hearings at 988.
102 1975 Senate Hearings at 489.



41

of the district, the electoral history o f the district, 
the increase in minority political activity, the lack of 
any minority representation on the Board of Trust­
ees o f the district, and the fact that these features 
would be added to an at-large election system.
. . . The opportunity for minority voters to elect a 
representative o f their choice to the school board is 
significantly lessened by the addition o f the num­
bered place requirement. . . . The majority vote re­
quirement exacerbates this problem, by preventing a 
minority candidate who receives a plurality against 
two or more majority candidates from being elected 
without facing a run-off election against a single 
majority candidate.103

4. Annexations and de-annexations
Annexations and de-annexations o f areas with large 

white voting populations are also used in Texas to reduce 
minority participation in the electoral process. For ex­
ample, in 1972, the Pearsall City Council annexed a 100% 
white development but refused to annex compact, con­
tiguous areas of high Mexican American concentration, 
and San Antonio, where the City Council is elected at- 
large, made massive annexations including irregular or 
finger annexations on the city’s heavily white north 
side.104 The Attorney General subsequently objected 
to the San Antonio annexation on the ground that the 
proportional strength o f the Mexican American popu­
lation necessarily has been reduced. . . .” 105

3®3 Letter o f objection dated May 24, 1976.
104 1 9 75 House Hearings at 368. See City o f Petersburg, Vir­

ginia v. United States, 354 F. Supp. 1021 (D.D.C. 1972), aff’d, 
410 U.S. 962 (1973), where the court affirmed a finding that an 
annexation of predominently white areas diluted the votes of 
black citizens.

3®3Letter of objection dated April 2, 1976. This letter of objec­
tion was withdrawn after San Antonio voters approved a plan for 
the election of the City Council from single-member districts.



42

The Attorney General also objected to a proposal to 
establish the Westheimer Independent School District in 
an area which had been part of the Houston Independent 
School District (HISD). The letter of objection states 
that the Justice Department had received comments from 
interested persons alleging that the proposal had a dis­
criminatory purpose, and that:

. . Such comments point out that the Westheimer 
district was first proposed shortly after . . .  minority- 
backed candidates first gained control of the board 
and shortly after the HISD had been ordered to 
undertake substantial school desegregation. The 
materials which accompany your submission do not 
refute such allegations. In addition, it appears that 
minority residents in the proposed Westheimer dis­
trict have no realistic opportunity to achieve the 
sort of representation in the proposed Westheimer 
Independent School District that they now enjoy 
in the Houston Independent School District.106

106 Letter of objection dated January 13, 1977. On January 
15, 1977, the Westheimer Independent School District held special 
elections to select school trustees pursuant to the reapportionment 
and new electoral procedures to which the Attorney General had 
objected. The certified winners assumed official responsibilities 
the following day. On January 20, 1977 the Attorney General 
filed an action in the United States District Court for the Southern 
District of Texas, United States v. Interim Board o f  Trustees o f  
the Westheimer Independent School District, et al., (Civ. Ac. No. 
H-77-121), seeking to set aside the election and enjoin defendants 
from taking any action purported to be official action of the West­
heimer Independent School District by virtue o f their election 
pursuant to the objectionable procedures.



43

The hearing record, together with events subsequent to 
the passage of the Voting Rights Act Amendments of 
1975, thus establishes a systematic and pervasive pattern 
of voting discrimination against Mexican Americans and 
blacks in Texas. The pattern revealed is strikingly similar 
to that which existed in the South and led to the enact­
ment of the Voting Rights Act o f 1965.107 The record 
also establishes that case-by-case litigation has not and 
cannot end voting discrimination in Texas. 108 Prepara­
tion of voting rights cases is extraordinarily costly and 
time consuming, and neither the Justice Department nor 
private parties have the resources to remedy all discrim­
inatory voting practices. More important, political juris­
dictions in Texas, intent on perpetuating the political 
subordination o f minorities, persistently violate court 
orders or evade them by adopting new modes of discrim­
ination not covered by the letter o f the decree.109

10?c f  Ten Years After.
108H.R. Rep. 94-196 at 26-27; 1975 House Hearings at 499; 

1975 Senate Hearings at 767-68. Case-by-case litigation was equal­
ly ineffective in the South. From 1957 until 1965, the Justice De­
partment filed 71 actions under the 1957, 1960 and 1964 Civil 
Rights Acts. These actions included challenges to discriminatory 
registration practices, private and official intimidation, and omnibus 
actions against the discriminatory application of voter qualification 
tests. Despite such efforts, the percentage registration of blacks and 
the percentage of black elected officials in the South increased by 
only nominal amounts, if at all. Derfner, Racial Discrimination and 
The Right to Vote, 26 Vand. L. Rev. 523, 548-49 (1973).

109 This was also characteristic of the southern states now cov­
ered by the Voting Rights Act. In South Carolina v. Katzenbach, 
supra, 383 U.S. at 314, 335, this Court stated:

Litigation has been exceedingly slow, in part because of the 
ample opportunities for delay afforded voting officials and 
others involved in the proceedings. Even when favorable de­
cisions have finally been obtained, some of the states 
affected have merely switched to discriminatory devices not

[footnote continued]



44

It was for similar reasons that Congress enacted the 
Voting Rights Act of 1965. That Act proved effec­
tive, 110 and evidence of widespread voting discrimina­
tion against Mexican Americans led Congress in 1975 to 
extend its protections to language minorities in Texas and 
elsewhere.111 The preclearance provisions of Section 5 
already have operated to prevent the implementation of 
many discriminatory changes in Texas voting pro-

covered by federal decrees or have enacted difficult new tests 
designed to prolong the existing disparity between white and 
Negro registration. . . . Congress knew that some of the States 
covered by Section 4(b) of the Act had resorted to the 
extraordinary stratagem of contriving new rules of various 
kinds for the sole purpose of perpetuating voting discrimina­
tion in the face of adverse federal court decrees.

It is also noteworthy that the bulk o f Section 5 objections en­
tered against southern jurisdictions have involved the same types 
of discriminatory devices, for example, at-large elections and 
multi-member districting, that the Attorney General most often 
has objected to when employed in Texas. See H.R. Rep. 94-196 at 
9-10; 1975 House Hearings at 183-85, 629.

HO See discussion, supra, at 3-4. While the significant increase in 
black registration and turnout in the South is attributable in part 
to the presence o f federal examiners and observers, the preclear­
ance provisions of Section 5 have had the most significant impact 
on voting discrimination. Section 5 avoids the cost, delay and 
randomness o f the case-by-case approach. Shifting the burden 
of proof to covered jurisdictions has prevented the enforcement 
of subtle discriminatory devices such as gerrymandering, multi­
member districting, and the numbered place system which tend 
to dilute the value of the vote. Moreover, covered jurisdictions 
are discouraged from contriving new modes of discrimination 
for the purpose of evading the effect of judicial decrees. 1975 
House Hearings at 331-32, 640-41.

111 H.R. Rep. 94-196 at 16-27.



45

cedures.112 As Congress found, it is only through con­
tinued enforcement of the Voting Rights Act that Mexi­
can Americans as well as blacks in Texas will enjoy their 
full range of political and civil rights.113

IV.

EXTENSION OF THE VOTING RIGHTS ACT OF 1965 
TO TEXAS WILL FACILITATE THE ELIMINATION OF 
OTHER FORMS OF ECONOMIC AND SOCIAL DISCRIM­
INATION.

Protection of the constitutional right to vote is the 
primary objective of the Voting Rights Act o f 1965 and

112As 0f January 1, 1977, approximately 36 letters o f objection 
had been interposed in response to submissions from Texas. Signifi­
cantly, most of these objections involve malapportionment, gerry­
mandering, at-large elections, majority runoff requirements, place 
system, and other forms of “ sophisticated”  discriminatory devices 
which are difficult and time consuming to challenge through litiga­
tion. The Committee on Elections of the Texas House of Repre­
sentatives reported in “ Interim Report: The Voting Rights Act 
in Texas”  [hereinafter “ Interim Report” ] that during the first 
twelve months o f Voting Rights Act coverage the Attorney 
General had objected to approximately 3% of Texas’ Section 
5 submissions. Interim Report at 171. This compares to an objec­
tion rate over a 10-year period o f approximately 1.1% for Virginia 
and 2% for South Carolina. See 1973 Senate Hearings at 596-600. 
The Committee Report also notes that the number of objections 
(25) “ has pushed Texas into fourth place among all the states 
covered by Section 5 of the Voting Rights Act. This figure includes 
the deep southern states now entering their twelfth year of cover­
age, as only Georgia and Louisiana (who have an estimated 37 
objections each) and Mississippi (with 29) are running ahead of 
Texas in the number of VRA objections.”  Interim Report at 
172. The Committee states that more objections had been inter­
posed in a sirgle year in Texas than in any of the southern states 
subject to the Act. Id. at 172-73. The Report further notes 
that many Texas governmental bodies “ have felt obliged to risk 
a court attack on their changes and, perhaps, even the overturning 
of their elections by going ahead and using changes before receiv­
ing a no objection ruling from the Justice Department.”  Id. at 177.

113See H.R. Rep. 94-196 at 21-22, 26-27; 1975 House Hearings 
at 492.



46

the 1975 Amendments. However, the Voting Rights Act 
has a critical secondary objective. As this Court held in 
Reynolds v. Sims, 377 U.S. 533, 562 (1964), the right 
“ to exercise the franchise in a free and unimpaired man­
ner is preservative o f other basic civil and political 
rights.” Minorities able to participate fully in the elec­
toral process are in a better position to deal effectively 
with other forms of economic and social discrimination.

This secondary objective of the Voting Rights Act has 
particular importance in Texas where Mexican Ameri­
cans and blacks have long been subject to a variety of 
discriminatory practices.114 In Graves v. Barnes 1, supra, 
the three-judge district court found:

Because of long-standing educational, social, legal, 
economic, political and widespread prevalent restric­
tions, customs, traditions, biases and prejudices, 
some of a so-called de jure and some of a so-called 
de facto, the Mexican American population of 
Texas, which amounts to about 20%, has historically 
suffered from, and continues to suffer from, the re­
sults and effects of invidious discrimination and 
treatment in the field of education, employment, 
economics, health, politics and others. [343 F.Supp. 
at 728].
Pervasive discrimination in education is illustrated by 

the fact that most major metropolitan school districts in 
the state have been ordered by federal courts to eliminate

114See 1975 House Hearings at 175-78, 277-79 for testimony 
that the Justice Department has had to bring lawsuits against state 
and local governments to protect Mexican Americans m Texas 
against discrimination in education, employment, housing and law 
enforcement. The legislative record also includes a memorandum 
from a member of the Texas House of Representatives which cites 
examples of the state legislature’s failure to fund programs in­
tended to benefit Mexican Americans and blacks. 1975 Senate 
Hearings at 920-21.



47

unconstitutional dual school systems.115 Three of the six 
school districts now facing the loss o f federal funds be­
cause of Title VI violations are in Texas. 116 Two-thirds 
of all Mexican American students in Texas attend pre­
dominantly Mexican American schools; 40% attend 
schools that are nearly all Mexican American. 117 More­
over, the amount o f money spent in Texas to educate 
most Mexican American students is approximately 60% 
of that spent to educate whites.118 The illiteracy rate for 
persons of Spanish origin in Texas is 33.8% compared to 
8.6% for whites,119 and 35.6% of Texas Mexican Ameri­
can families have incomes below the poverty level.120

Residential segregation is also widespread. In many 
towns and cities Mexican Americans “ are not permitted 
to own property anywhere except in the Mexican ‘col­
ony,’ regardless of their social, educational or economic

115See generally, Project Report: De jure Segregation o f Chi- 
canos in Texas Schools, 7 Harv. Civil Rights-Civil Liberties L. Rev. 
307 (1972). See also Cisneros v. Corpus Christi Independent 
School District, supra, n. 28.

Y. Times, January 18, 1977 at A16.
117U.S. Commission on Civil Rights, “ Ethnic Isolation of Mexi­

can Americans in Public Schools of the Southwest,” Report I at 60 
(1970).

1*8United States Commission on Civil Rights, “Mexican Ameri­
can Education in Texas: A Function of Wealth,”  Report IV at 26 
(1972).

119June 1975 CRC Memorandum at 4. Comparable figures for 
blacks in the South range from 18.4% in Virginia to 28.4% in 
Mississippi. 1975 House Hearings at 364, 369. The illiteracy rate 
for persons of Spanish origin in Texas is 14.4% higher than in any
of the other Southwestern states. June 1975 CRC Memorandum at 
4.

1201975 Senate Hearings at 766. Approximately 40% o f the
blacks in Texas are living below the poverty level. 1975 House
Hearings at 802.



48

status.” 121 The housing that is available to Mexican 
Americans is generally inadequate. A 1966 study re­
ported that 46.5% of the Mexican American families in 
Texas occupied overcrowded housing compared to 25.9% 
of the non-white and 9.4% of the white families.122

Mexican Americans have also suffered severe employ­
ment discrimination. During the 1940’s, the majority of 
Texas industries discriminated against Mexican American 
workers with regard to employment, wage scales, and 
opportunities for promotion. 123 In 1959, Spanish sur- 
named males in the Southwest earned 57 cents for every 
dollar earned by whites,124 Even today Mexican Ameri­
cans are limited in employment and promotional oppor­
tunities by tests, seniority systems and other devices 
which perpetuate the results of past discrimination.125

Discrimination against Mexican Americans in the ad­
ministration of justice is also well documented.126 The 
Civil Rights Commission has reported severe police dis­
crimination against Mexican Americans, and found that

121P. Kibbe, Latin Americans in Texas, 123-24 (1946) (herein­
after Kibbe). See also J. Moore and F. Mittelbach, Residential 
Segregation in the Urban Southwest (Advance Report IV, Mexican 
American Study Project, UCLA Advance Report IV at 32, 38 
(1966).

122 p_ Mittelbach and G. Marshall, The Burden o f  Poverty, Mexi­
can American Study Project, UCLA Advance Report V at 44 
(1966).

^^Kibbe at 157.
124j_ Moore, Mexican Americans, 60 (1970).
125See, e.g., Sabala v. Western Gillette, Inc., 362 F.Supp. 1142 

(S.D. Tex. 1973), aff’d in relevant part, 516 F.2d 1251 (5th 
Cir. 1975). See also Greenfield and Kates, Mexican Ameri­
cans, Racial Discrimination, and the Civil Rights Act o f 1866, 63 
Calif. L. Rev. 662, 718-23 (1975).

126s ee generally United States Commission on Civil Rights, 
Mexican Americans and the Administration of Justice in the South­
west (1970).



49

in Nueces County, Texas, where Mexican Americans com­
prise over 40 percent of the population, of 288 grand 
jurors selected over a nine-year period only 16 were 
Mexican Americans.127

The elimination of economic, social, and other forms 
of discrimination in Texas depends, to a significant 
extent, on the elimination of discrimination against 
Mexican American and black voters. In Katzenbach 
v. Morgan, 384 U.S. 641, 652-53 (1966), this Court 
recognized that the Voting Rights Act helps minority citi­
zens gain “ nondiscriminatory treatment in public serv­
ices,”  and thereby enables them “ better to obtain ‘per­
fect equality of civil rights and the equal protection of 
the law.’ ”  Likewise, in Robinson v. Commissioners 
Court, supra, the Fifth Circuit affirmed the district 
court’s findings that segregation of the county’s public 
schools and other facilities, discrimination in county 
employment, and the Commissioners Court’s general “ un­
responsiveness to the needs and interests of the black 
community”  was a direct result of “ oppressive and re­
strictive voting legislation and racial discrimination 
generally in the state of Texas.”  505 F.2d at 679. 128 
Once able to participate in the electoral process in a free 
and unimpaired manner, Mexican Americans and blacks 
in Texas will be in a position to insist that elected offi-

127h . Rohan, The Mexican American 20 (1968) (Staff paper 
prepared for the United States Commission on Civil Rights). See 
also Kibbe, at 229. In Hernandez v. Texas, 347 U.S. 475 (1954), it 
was held that discrimination against Mexican Americans in the 
selection of grand jury panels violates the Fourteenth Amendment.

128See also Cisneros v. Corpus Christi Independent School Dis­
trict, supra, 324 F. Supp. at 604-05 n.27.



50

cials desegregate public school systems, enforce laws 
prohibiting discrimination in employment and housing, 
and take whatever action is necessary to eliminate dis­
crimination by law enforcement and other public agen­
cies.

CONCLUSION
For the foregoing reasons, and for the reasons set 

forth in the brief for respondents, the decision below 
should be affirmed.

Respectfully submitted,

J o s e p h  L . R a u h , J r .

General Counsel, 
LEADERSHIP CONFERENCE 

ON CIVIL RIGHTS 
1001 Connecticut Ave., N.W. 
Washington, D.C. 20036

J a m e s  T .  D a n a h e r  
A r m a n d  G. D e r f n e r  
A l e x a n d e r  D . F o r g e r  
A l b e r t  E . J e n w e r , J r .
N ic h o l a s  d e B . K a t z e n b a c h  
S t e p h e n  J .  P o l l a k  
N o r m a n  R e d l ic h

LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW

R o b e r t  A .  M u r p h y  
W il l ia m  E . C a l d w e l l  

733 - 15th Street, N.W. 
Washington, D.C. 20005

V i l m a  S . M a r t i n e z  
J o a q u i n  A v i l a  
A l  I. P e r e z

MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL 
FUND

145 Ninth Street
San Francisco, Calif. 94103

J a c k  G r e e n b e r g  
E r ic  S c h n a p p e r

10 Columbus Circle
New York, New York 10019

D a v i d  S . T a t e l  
D a l e  F. S w a r t z

HOGAN & HARTSON
815 Connecticut Ave., N.W.
Washington, D.C. 20006
Attorneys for Amici Curiae.

February 25, 1977