Hi-Voltage Wire Works, Inc. v. City of San Jose Brief of Amicus Curiae in Support of Appellants

    IN THE

Supreme Court of the United States
October Term, 1965

No.

W il l ia m  S. T h ornton , E dward L. S lade, Jr ., Jo h n  M. 
B rooks, W . F erguson R eid, F r a n k l in  J. Gayles, 
George A. P a n n ell , T in sley  Spraggins, Jo h n  T. 

D rew , Sr., O th e l  N. S parks, E lise F r a n k l in , E lsie 
T. R obinson , Richmond Plaintiff-Intervenors,

Appellants,
v.

L evin  N ock D avis , A lexander  M. H arm on , Jr ., and 
R obert C. B ayliss , Secretary and Members, State 

Board o f Elections, et al.,
Appellees.

On Appeal From The United States District Court For The 
Eastern District Of Virginia

JURISDICTIONAL STATEMENT

Sam u el  W . T ucker  
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Appellants



TABLE OF CONTENTS
Page

Jurisdictional Statem en t  ........................................................................ 2

O pin io n  Below  ..............................................................................................  3

Jurisdiction ........................................................................  3

T he  Statutes I nvolved ............................................................................... 3

T he  Q uestions P resented ...........................................    3

Statem en t  of th e  Case ............................................................................  4

The Facts ................ - .........................................................................  *5

The Circumstances Surrounding the Adoption of the 1964 
Reapportionment Statutes ..............    8

Equally Weighted Votes Was Not the Legislative Concern .... 14

T he  Q uestions A re Su b s t a n t ia l .....................................................  17

Conclusion  ......... —................................................................................. —-  23

A ppendix  A

Order on Petitions and Complaints of Intervenors from Hen­
rico County, City of Richmond and Shenandoah County .... 1

Opinion ................................................................................................  4

A ppendix  B

Order on Mandate......................................................... -..................  1

Opinion upon Order on M andate................................. ................  5

A ppendix  C

Chapter 1— Acts of the General Assembly of Virginia, Extra 
Session 1964............................................ ................ ,.......-..........  1



Chapter 2— Acts of the General Assembly of Virginia, Extra 
Session 1964..................................................................................

A ppendix  D

Public Documents Reflecting Virginia’s Official Reaction to 
Brown v. Board of Education and Related Fourteenth 
Amendment Rights .....................................................................

TABLE OF CITATIONS

Cases

Bradley v. School Board of the City of Richmond (4th Cir. 1963), 
317 F. 2d 4 2 9 ......................................................................................

Davis v. Mann (1964), 377 U. S. 678, 12 L. ed. 2d 609, 84 S. Ct. 
1441 ........ ......................................................................  3, 4, 9, 10,

Fortson v. Dorsey (1965), 379 U. S. 433, 13 L. ed. 2d 401, 85 S. 
Ct. 498 .....................................................................  3, 17, 18, 19,

Gomillion v. Lightfoot (1960), 364 U. S. 339, 5 L. ed. 2d 110, 81 
S. Ct. 1 2 5 ............................................................................................

Mann v. Davis (1962), 213 F. Supp. 571 .........................................

N AA C P v. Button (1963), 371 U. S. 415, 9 L. ed. 2d 405, 83 S. 
Ct. 328 ................................................................................................

Reynolds v. Sims (1964), 377 U. S. 533, 12 L. ed. 2d 506, 84 S. 
Ct. 1326 .................................................................................  3, 18,

Wade v. City of Richmond (1868), 18 Gratt. (59 Va.) 583 .... 19,

Wright v. Rockefeller (1964), 376 U. S. 52, 11 L. ed. 2d 512, 84 
S. Ct. 603, reh den 376 U. S. 959, 11 L. ed. 2d 977, 84 S. Ct. 
964 ........................................................................................................

5

1

6

13

23

22
4

17

21

20

22

28 U. S. C.
Statutes



Page

§2101 (b ) ...................................................................... - ................ 3
§2281 ..................................................................................................  3
§2284 ................................................................................. -~......... - -  3

42 U. S. C.
§ 1983 ............................................................................... — ..............  3
§ 1988 .................................................................................- - - - - - ...... 3

Va. Const., 1902
§ 41 ....................................................................................................... 20
§ 42 ................................-.....................................................................  20
§ 43 .......................................................................... -................... .......  20
§ 44 ..................................................................................... .............. 20, 21

Va. Code, 1950
§ 24-12 ..............................................................................................  3, S
§ 24-14 ..............................................................................................  3. 5



IN THE

Supreme Court of the United States
October Term, 1965

No.

W il liam  S. T h ornton , E dward  L. Slade, Jr ., Jo h n  M. B rooks, 
W . F erguson R eid, F r a n k l in  J. Gayles, George A. P an n e ll , 

T insley  Spraggins, Jo h n  T. D rew , Sr ., O th el  N. S parks, E lise 
F r a n k l in , E lsie T. R obinson , Richmond Plaintiff-lntervenors,

Appellants,
v.

L evin  N ock D avis, A lexander M. H arm on , Jr., and R obert C. 
Bay liss , Secretary and Members, State Board of Elections;

T hom as R . M iller, Clerk, Hustings Court of the City of Richmond; 
W ilm er  L. O ’F lah erty , Sue D. B roun and R obert C. C h appell , 

Members, Electoral Board of the City of Richmond;

H elen D. Clevenger, Clerk, Circuit Court of Henrico County; 
L inwood E. T oombs, E. R. B oisseau and C. K emper L orraine, 

Secretary and Members, Electoral Board of Henrico County;

H arrison M a n n , K a th r y n  Stone, Jo h n  C. W ebb and Jo h n  A. K. 
D o navan , Original Plaintiffs;

H. B ruce Green , Clerk, Circuit Court of Arlington County; 
D e n m a n  T. R ucker, M aynard  Carlisle  and R alph  K im ble , 

Members,, Electoral Board, Arlington County;

T hom as P. C h a p m a n , Jr ., Clerk, Circuit Court of Fairfax County; 
P au l  K incheloe, E bner L. D u n ca n , Jones Jasper, Members 

Electoral Board, Fairfax County;

C harles L. Glanville , W illiam  L. S hepheard , P aul, M. L ip k in  
and Jack  R. W il k in s , Norfolk Plaintiff-lntervenors;



2

W il liam  L. P rieur, Jr., Clerk, Corporation Court of the City of 
Norfolk; James M. W ilcott, Joseph T. F itzpatrick  and James 

E. B aylor, Members, Electoral Board, City of Norfolk;

Jesse D. F un kh ou ser , H enry  L. H oller, W . H olmes F owle, 
W il liam  P. L ineburg , J. E ldred S w artz  and Cletus R. 

L indamood , Shenandoah Plaintiff-Intervenors;

M arvin  G. S igler, Clerk, Circuit Court of Shenandoah County; 
W arren B. F ren ch , Sr., P au l  S hutters and F red H e ish m a n  

Members, Electoral Board, Shenandoah County,
Appellees.

S im eon  A. B urnette , B. E arl D u n n , E d w in  H. R agsdale and 
L. R ay  S h adw ell , Jr .,

Co-Appellants.

On Appeal From The United States District Court For The 
Eastern District O f Virginia

JURISDICTIONAL STATEM ENT

Appellants, William S. Thornton, et al., designated as 
the Richmond Plaintiff-Intervenors, appeal from the judg­
ment of the three-judge United States District Court for 
the Eastern District o f Virginia, entered April 9, 1965, 
dismissing the intervening petition and complaint filed by 
appellants in the civil action therein pending under the 
style, Harrison Mann, et al., v. Levin Nock Davis, et al., to 
challenge the constitutionality o f the Virginia Reapportion­
ment Acts o f 1964 and submit this statement to show that 
the Supreme Court o f the United States has jurisdiction of 
the appeal and that a substantial question is presented.

OPINION BELOW

The opinion o f the three-judge District Court for the 
Eastern District of Virginia is not yet reported. The opinion 
and the order thereon are printed as Appendix A  hereof.



3

JURISDICTION

This proceeding stems from the intervention by certain 
citizens of the City o f Richmond in a suit styled Davis v. 
Mann instituted on April 9, 1962, to test the validity of the 
statutory apportionment of seats in both houses of the 
General Assembly of Virginia. The original action and the 
intervening petition and complaint of appellants were 
brought under 28 U.S.C. § 1343 (3 ) to assert rights pur­
suant to 42 U.S.C. §§ 1983, 1988 and to obtain injunctions 
under 28 U.S.C. §§ 2281, 2284.

The judgment now sought to be reviewed is dated and was 
entered on April 9, 1965. No rehearing was requested. 
Notice of appeal was filed by the instant appellants on June 
7, 1965, in the United States District Court for the Eastern 
District o f Virginia.

The jurisdiction of the Supreme Court to review this 
decision by direct appeal is conferred by 28 U.S.C.§§ 1253, 
2101 (b ).

The following decisions sustain the jurisdiction of the 
Supreme Court to review the judgment on direct appeal: 
Fortson v. Dorsey (1965), 379 U.S. 433, 13 L. ed 2d 401, 
85 S.Ct. 498; Davis v. Mann (1964), 377 U.S. 678, 12 L. 
ed 2d 609, 84 S.Ct. 1441; Reynolds v. Sims (1964), 377 
U.S. 533, 12 L. ed 2d 506, 84 S.Ct. 1362.

THE STATUTES INVOLVED

The state statutes, the validity of which is involved in 
this appeal, are Sections 24-12 and 24-14 of the Code of 
Virginia 1950, as amended by the 1964 Extra Session of 
the General Assembly of Virginia. They are set out in 
Appendix C hereof.

THE QUESTIONS PRESENTED

1. Do the Fourteenth and Fifteenth Amendments pro­
hibit a state from combining two multi-member legislative



4

districts into one multi-member legislative district in which 
the voting strength of a minority racial element o f one of 
the former districts will be minimized or canceled out; par­
ticularly when no other suggested purpose for such change 
is plausible ?

2. Do the Fourteenth and Fifteenth Amendments pro­
hibit a state from requiring that all of a city’s legislative 
representatives be elected by the voters of the city at large, 
when the purpose or effect o f such a requirement is to mini­
mize or cancel out the voting strength of a racial minority ?

STATEM ENT OF CASE

This litigation was commenced on April 9, 1962, in the 
United States District Court for the Eastern District of 
Virginia by certain residents, taxpayers and qualified voters 
of Arlington and Fairfax Counties, charging that they were 
subjected to invidious discrimination in the apportionment 
of seats in the General Assembly o f Virginia as provided by 
the 1962 statutes. Residents of the City of Norfolk inter­
vened to show that the statutes effected invidious discrimin­
ation against that area as well. On November 28, 1962, the 
three-judge District Court sustained the plaintiffs’ claims. 
Mann v. Davis, 213 F. Supp. 577. On appeal by the state 
officials, the judgment of the District Court was affirmed. 
Davis v. Mann, 377 U.S. 678 (1964).

By its September 18, 1964 order, on the mandate, the 
District Court further stayed the enforcement of its Novem­
ber 28, 1962 order to permit the General Assembly to enact 
constitutionally valid reapportionment statutes for both 
houses and provided that if such reapportionment legislation 
as might be enacted failed to meet the requirements of the 
Constitution, then the plaintiffs, the plaintiff-intervenors 
and any party granted leave to intervene may apply to the 
court for such further orders as may be required.



5

The General Assembly of Virginia, by acts approved 
December 2, 1964, amended §§ 24-12 and 24-14 o f the 
Code of Virginia. The effect o f the amendment o f § 24-12, 
as far as is material to this appeal, was to allot eight dele­
gates to the 36th House o f Delegates District consisting of 
the City of Richmond and the County o f Henrico which, 
prior to 1962, had been entirely separate districts.

The effect o f the amendment of § 24-14, as far as is 
material to this appeal, was to allot two senators to the 30th 
Senatorial District consisting of the entire City of Rich­
mond.

Certain residents, taxpayers and voters o f the County 
of Henrico (Simeon A. Burnett and others), designated as 
Henrico Plaintiff-Intervenors, filed their intervening peti­
tion asserting that, insofar as the amendment to § 24-12 
combines the County of Henrico with the more populous 
City of Richmond for representation in the House of Dele­
gates, the statute effects an invidious discrimination against 
voters of Henrico County who are entitled to be represented 
by three delegates elected by the voters of the county at 
large.

Certain residents, taxpaj^ers and voters o f the City of 
Richmond all of whom are Negroes ( William S. Thornton 
and others, sometimes referred to as Richmond Plaintiff- 
Intervenors), filed their petition asserting that both sta­
tutes as amended violate their rights under the Fourteenth 
and Fifteenth Amendments inasmuch as the at-large elec­
tion arrangements serve to dilute the effectiveness of those 
Negro voters who, by reason of the segregated residential 
pattern, inhabit certain sections o f Richmond in such num­
bers that they would be in predominantly Negro districts 
if Richmond were divided into single-member districts. 
Further, the Richmond Plaintiff-Intervenors contend that 
the purpose and effect of the combination of Richmond



6

and Henrico was and is to diminish and cancel out the rela­
tive strength of the Negro vote in Richmond. The District 
Court rejected the contentions o f both sets of intervenors.

THE FACTS

In 1934, approximately one-fourth of the Negroes in 
the City of Richmond resided in “ East-End” and approxi­
mately one-half o f Richmond’s Negroes resided in the 
downtown or “ Central”  area o f the city. The Master Plan 
for the Physical Development of the City o f Richmond as 
adopted by that city’s governing body in or subsequent to 
1945 suggested that low rental housing be located in vacant 
areas in sections of the city removed from the then existing 
downtown slums; and that those slums could be replaced 
by “ downtown apartments for white collar workers and 
other income groups or for some industrial or public pur­
pose” (R. pp. 74-75). Accordingly, the Council caused four 
o f the five public housing projects now occupied by Negroes 
to be located in Richmond’s “ East End”  (R . p. 75).

The continued efforts o f the city’s school board to retain 
racial segregation in the public schools accommodated and 
contributed to the racially segregated residential pattern. 
It is stipulated that until March of 1963, when it adopted 
a “ Freedom of Choice”  policy with respect to racial segre­
gation in public education, the school board attempted to 
meet the problem of overcrowding in Negro schools by 
building new schools in Negro neighborhoods, making addi­
tions to existing Negro schools and converting white schools 
to Negro schools (R. p. 73). An illustrative occurrence is 
related in Bradley v. School Board of the City of Richmond, 
Virginia, 317 F. 2d 429 (4th Cir. 1963), viz: “ At a special 
meeting held on September 15, 1958 (approximately two 
weeks after the beginning of the school term), the School 
Board voted to request the Pupil Placement Board to trans­



7

fer the pupils then attending the Nathaniel Bacon School 
(white) to the East End Junior High School (white), and 
that a sufficient number o f pupils be transferred from the 
George Mason (N egro) and Chimborazo (N egro) schools 
to the Nathaniel Bacon building to utilize its capacity, thus 
converting Nathaniel Bacon to a Negro School.”

Public authority accomplished its expressed purpose of 
“ siphoning” Negroes from the older slum areas in the 
central part of the city (R . p. 75) by developing a concen­
tration of Negroes in Richmond’s East End. The 1960 
Census shows that o f 92,331 non-white persons residing in 
the City of Richmond, 41,899 or 45.4% lived in the East 
End; 31,910 or 34.5% in Central; 10,062 or 10.9% in 
Northside; 7,850 or 8.5% in Southside and 610 or 0.7% in 
West End (Richmond Exhibit 10).

Substantial equality of population in these five major divi­
sions of the city might be achieved by extending “ West 
End” eastwardly into “ Central”  and by extending “ North- 
side” southwardly into “ Central” (Richmond, Exhibits 10, 
15). These adjustments would leave “ East End”  with a pop­
ulation larger than either of the other four units— a fact 
which does not detract from the force of the arguments here 
advanced. So distributed, Negroes (comprising 42% of 
Richmond’s total population) would constitute 88.6% of 
East End’s total population of 47,275; 54.9% of Central’s 
total population of 44,503; 40.8% of Northside’s total popu­
lation of 44,350; 20.4% of Southside’s total population of 
38,453; and 0.01% of West End’s total population, of 45,- 
377 (Richmond Exhibit 15). It is impossible to divide 
Richmond into five House of Delegates Districts o f sub­
stantially equal population without creating one or more 
districts in which Negroes will predominate (Gayles, Dep. 
58). Any logical division of Richmond into two senatorial 
districts o f substantially equal population is likely to create



8

one in which Negroes will predominate (Gayles, Dep. 43- 
54). Only 5% of Henrico’s population of 117,339 is non­
white.

As will be next seen, the General Assembly was aware of 
the concentration o f Negroes in the City o f Richmond when 
it convened in Extra Session to effect a legislative redistrict­
ing in accordance with the directives of the Court.

The Circumstances Surrounding 
The Adoption of the 1964 Reapportionment Statutes

The Committee on Privileges and Elections o f the House 
of Delegates had conferred prior to the convening- o f the 
General Assembly on November 30, 1964. Its report to the 
House of Delegates recommended 2 delegates for Henrico 
County separately and 6 Delegates for Richmond City and 
Henrico County together (Henrico Exhibit 7, R. 441, 
443). The Committee had before it the report, dated No­
vember 15, 1961, of the Commission on Redistricting ap­
pointed by the Governor in January o f 1961, which recom­
mended 3 delegates for Henrico County and 6 delegates for 
Richmond City (Henrico Exhibit 6, R. 415, 427). That 
Commission had requested the Bureau o f Public Adminis­
tration, University of Virginia, to analyze the problems and 
make recommendations. Its report to the Commission of 
July 17, 1961, presented Plan A  which provided 3 delegates 
for Henrico and 6 delegates for Richmond City (Henrico 
Exhibit 5, R. 403, 406).

The recommendation of the House Committee on Privi­
leges and Elections was not unanimous. One of its members 
who had been chairman of the Governor’s Commission on 
Redistricting filed a written dissent in favor of the recom­
mendations of his Commission (Henrico Exhibit 7, R. 
458). In so doing he said:



9

“ In the extensive deliberations of the Committee, I 
consistently observed and commented on the obvious 
efforts o f a majority o f the Committee to shield and 
protect numerous members of the House whose seats 
were in jeopardy.”

The recommendation o f the House Committee on Privi­
leges and Elections was embodied in House Bill No. 1 
and presented to the House o f Delegates by its sponsors, 
one o f whom was a Richmond City resident and member 
of the joint delegation representing Richmond City and in 
part Henrico County in the House o f Delegates under the 
1962 apportionment statute declared unconstitutional by 
this Court in Davis v. Mann, supra. House Bill No. 1 
created a 36th District composed o f Henrico County alone, 
having 2 delegates, and a 56th District composed o f Rich­
mond City and Henrico County o f 6 delegates (Henrico 
Exhibit 8, R. 461,462,463).

The General Assembly also had before it a resolution of 
the Board of Supervisors of Henrico County, unanimously 
adopted October 28, 1964 (Henrico Exhibit 9, R. 464; 
Burnette Dep., R. 338) and a resolution o f the Council of 
the City of Richmond, unanimously adopted November 30, 
1964 (Henrico Exhibit 10, R. 466; Crowe Dep., R. 232), 
both of which strongly urged separate representation for 
the city and county. It was also advised that merger of 
Richmond City and Henrico County had been defeated by 
a Henrico County vote of 13,647 to 8,862 on December 12, 
1961, while voters in Richmond City favored the merger 
by 15,050 to 6,698 (Henrico Exhibit 20, R. 507).

The House Committee on Privileges and Elections held a 
public hearing on House Bill No. 1 at which the Mayor 
o f Richmond City, the Chairman of the Legislative Com­
mittee of the Richmond City Council and the Chairman o f



10

the Board o f Supervisors of Henrico County each spoke 
for separate and independent representation in the House of 
Delegates and recognized necessary conflicts in the joint 
representation of the two independent political subdivisions 
(Crowe Dep., R. 232, 235; Wheat Dep., R. 331, 334; 
Burnette Dep., R. 339-340).

Richmond City and Henrico County were represented in 
the 1964 Extra Session of the General Assembly under the 
1962 reapportionment statute declared unconstitutional by 
this Court in Davis v. Mann, supra. Under that statute 
Henrico County had one independent delegate and Rich­
mond City and Henrico had eight delegates jointly (Henrico 
Exhibit 36A, R. 638). O f those eight, five Democrats and 
two Republicans lived in the City of Richmond, and one 
Democrat resided in Henrico County (Pollard Dep., R. 228; 
Sutton Dep., R. 116; Bradshaw Dep., R. 285; Herrink 
Dep., R. 354-355; Andrews Dep., R. 94-97).

House Bill No. 1 was recommitted to the House Commit­
tee on Privileges and Elections on November 30, 1964 
(Henrico Exhibit 12, R. 470). On December 1, 1964, the 
Committee reported the bill with amendments that elimi­
nated altogether any independent delegate for Henrico and 
consolidated Richmond City and Henrico County into a 
single House district to be represented by eight delegates 
elected at large (Henrico Exhibit 12, R. 472). The Com­
mittee amendments were proposed by Delegate Andrews, 
a resident of Richmond City, after consulting the other 
members o f the Richmond-Henrico delegation who were 
also residents o f Richmond, but without consulting those 
residing in Henrico County (Andrews Dep., R. 80-82). 
The Committee amendments were adopted and floor amend­
ments offered by the two delegates residing in Henrico 
County to restore separate representation were defeated. 
The bill with the Committee amendments passed by a vote



11

of 74 to 22. The five Democratic delegates resident in Rich­
mond City voted for the bill and the two Republican dele­
gates from Richmond City and the two delegates resident in 
Henrico County voted against it (Henrico Exhibits 12, R. 
474; 13, R. 478).

All of the delegates representing Richmond City and 
Henrico County were keenly aware o f the great upsurge 
in voter registration during 1964, particularly in Richmond 
City during October of 1964, and o f the increasing Negro 
vote in Richmond City (Pollard Dep., R. 254; Dervishian 
Dep., R. 189, 201). The growing Republican vote in Hen­
rico and Chesterfield Counties had also been noted (Pollard 
Dep., R. 254). Peculiar interest had been shown by the dele­
gates in analyzing the trends indicated by the Congressional 
elections o f 1962 and 1964 for the Third District, consisting 
of Richmond City and Henrico County as well as Chester­
field County and Colonial Heights.

The reasons expressed by some of the five Democratic 
incumbents resident in Richmond City for insisting upon the 
consolidation o f the two political subdivisions into one dis­
trict were summarized as follows:

“ I think that the expressed opinions involved the re­
tention in the members of the House of persons of 
conservative political philosophy and also concern about 
racial relations would be the principal reasons that 
have been discussed.”  (Sutton Dep., R. 130).

The same delegate testified further, as follows:

“ Q. Picking up right here, Mr. Sutton, getting a 
little more specific about the concern for race relations, 
was there not some discussion(s) as to whether a 
Negro might be elected into the General Assembly 
from the Richmond area?



12

“A. That has been discussed.
“ Q. Was it not pointed out in this discussion that 

the combination of Richmond and Henrico would tend 
to prevent or lessen the chance of a Negro being elected 
to the General Assembly, in view of the growing vote 
in Richmond?

“ A. That has been discussed.
“ Q. And this was discussed by members of the 

present legislature from the Richmond area, the Dem­
ocratic members?

“ A. That is correct.”  (Sutton Dep., R. 131).

Such discussions were confirmed by other Delegates 
(Dervishian Dep., R. 198-200; Herrink Dep., R. 189-191). 
The Richmond City member of the Committee on Privileges 
and Elections agreed that annexation was not the only 
reason for the consolidation (Andrews Dep., R. 91-92). 
Another delegate testified that annexation was the only 
reason “ argued before the Committee or on the floor o f the 
House” (Pollard Dep., R. 245).

The statutes which were enacted combined for the first 
time in the history o f the Commonwealth two separate and 
independent political subdivisions each of which was entitled 
to more than one representative in the House of Delegates 
according to the population ratio per delegate then prevailing 
under the latest decennial census. It consolidated into a sin­
gle multi-member district Richmond City, having a 1960 
population o f 219,958 and 67,003 registered voters, and 
Henrico County, having a 1960 population o f 117,339 and 
34,220 registered voters (Henrico Exhibits 1, R. 375 ; 2, R. 
380, 383; 21A, R. 511-513; 22A, R. 517). It awarded the 
single district eight delegates to be elected at large by 
the voters o f both Richmond City and Henrico County.



13

The excuse publicly assigned for this novel departure 
from tradition was the pendency during the special session 
o f an annexation proceeding brought by the City of Rich­
mond against Henrico County in which the annexation 
court had by its written opinion o f April 27, 1964 (Defend­
ants’ Exhibit 4, R. 668), and its interlocutory order of 
July 31, 1964 (Defendants’ Exhibit 3, R. 663), awarded the 
city 17 square miles o f Henrico territory containing ap­
proximately 45,000 residents. Only the financial adjust­
ments remained for decision. That award was subsequently 
refused (R . 698; Crowe Dep., R. 233-234; Wheat Dep., R. 
334-335).

Annexation was not the basic motivating cause.1 The 
Richmond City member of the Committee on Privileges 
and Elections conceded that an allotment of two delegates 
to Henrico County, five delegates to Richmond City and 
one floater delegate for the county and city together would 
have solved all o f the problems claimed to have been 
presented by the pending annexation suit (Andrews Dep., 
R. 105-106). Such an amendment was offered in the Senate 
and was defeated (Henrico Exhibit 14, R. 479, 480). This 
Court has recognized that such was the traditional use in 
Virginia o f the “ floterial district” . Davis v. Mann, supra, 
footnote 2. (See also Bradshaw Dep., R. 295).

The real reason for combining the city and county into 
a single House district was the grave concern of the 
Democratic members o f the House o f  Delegates resident in 
Richmond City over the upsurge in voter registrations 
during 1964 (particularly in Richmond City during Octo­
ber, 1964), the growing Republican vote in Henrico County,

1 The District Court made no finding on this point, notwithstanding 
the fact that the pendency of the annexation proceeding was the only 
reason the state authorities suggested for the combination of the two 
independent political subdivisions.



14

that a Negro might be elected to the General Assembly from 
the Richmond area in view of the increasing voting strength 
of Negroes in concentrated areas of the City, and race 
relations in general. Retention in the House o f Delegates 
o f members from the Richmond area of conservative 
political philosophy was the objective that the scheme to 
consolidate Richmond City and Henrico County into a 
single multi-member district was designed to accomplish. 
Such a purpose the evidence plainly establishes.

Never before, so far as is known, in the history of the 
Commonwealth have two separate and independent political 
subdivisions, each entitled separately and independently 
to more than one delegate in the House o f Delegates accord­
ing to the population ratio per delegate then existing, been 
combined and consolidated into a single district and awarded 
delegates jointly to be elected at large by the voters of both 
separate and independent political subdivisions. (See Hen­
rico Exhibits 23A through 37D, R. 520-655). The chief 
objection voiced by one Richmond City Councilman was 
that “ it was the only city that would not have had any 
individual representation, separate representation” (Wheat 
D'ep., R. 334).

Equally Weighted Votes Was Not The Legislative Concern

The District Court considered as controlling the facts 
next quoted from its opinion. “ Ideal representation in the 
House of Delegates, when Virginia’s total population ac­
cording to the 1960 census is distributed among its 100 
delegates, is 39,669 persons for each member. * * * Rich­
mond alone could justify 5 delegates with 21,613 towards 
a sixth. T o have awarded only 5 delegates to Richmond 
would have meant that each of its delegates represented 
43,911, or 4,242 persons in excess of the norm.”  (App. A.



15

p. 6.) However, o f Virginia’s 50 districts which are not 
affected by floterial representation, 12 have populations in 
excess o f 43,911 per delegate, v iz :

2nd Accomack, Northampton— 1 delegate—47,601 per dele­
gate

6th Alleghany, Botetourt, Covington, Clifton Forge— 1 
delegate— 45,173 per delegate

16th Russell, Dickenson— 1 delegate— 46,501 per delegate

24th Clarke, Frederick, Winchester— 1 delegate— 44,993 
per delegate

26th Hampton— 2 delegates— 44,629 per delegate

28th Fauquier, Warren, Rappahannock— 1 delegate-—44,- 
089 per delegate

32nd Carroll, Grayson, Galax— 1 delegate—-45,822 per dele­
gate

38th Isle o f Wight, Southampton, Franklin— 1 delegate—  
44,359 per delegate

47th Nansemond, Suffolk—-1 delegate—43,975 per delegate

61st Spotsylvania, Stafford, Fredericksburg— 1 delegate—  
44,334 per delegate

62nd Tazewell— 1 delegate— 44,791 per delegate

50th-59th Page, Rockingham, Shenandoah, Harrisonburg 
— 2 delegates— 44,899 per delegate

(Henrico Exh. 2).

It can hardly be supposed that the Legislature was so 
much concerned for mathematical precision with respect 
to the City of Richmond when it showed so little concern for 
such precision in so many other places.



16

The General Assembly was aware o f the increasing 
efforts o f Negroes in Richmond to make effective political 
expression. On at least seven occasions between 1947 and 
1961 some Negro citizen has sought the Democratic nomi­
nation (tantamount to election) for one of Richmond’s seats 
in the House of Delegates.2 In 1959, the Negro candidate, 
bidding with eight others for one of the seven seats, re­
ceived 10,975 votes; but the successful aspirants received 
votes ranging from 12,723 to 14,000 (R . p. 71).

In 1964, there were approximately 18,355 Negroes quali­
fied to vote in non-federal elections in Richmond City, ap­
proximately 52,179 white persons qualified to vote in non- 
federal elections in Richmond City (Henrico Exh. 21B), 
and approximately 933 Negro and 40,660 white persons so 
qualified in Henrico County (Henrico Exh. 22B).

Negroes in Richmond and elsewhere in Virginia have 
the most compelling reasons for seeking a change from the 
“ conservative”  Democratic forces which control Virginia’s 
government. The statutes of Virginia, past and present, are 
replete with evidence of the age-old preoccupation o f the 
General Assembly with establishing and preserving racial 
segregation and discrimination as a cherished way of life.3 
The dissatisfaction of Richmond’s Negroes with these facets 
o f their environment was expressed on November 4, 1964, 
when the city’s ten largest Negro precincts cast 14,111 votes 
for President Johnson as against 115 for Senator Gold- 
water, thus helping to put Richmond in the Democratic 
column by a count of 35,662 over 27,196 (Richmond Exh.

2 In the July 13, 1965, Democratic Primary, two Negroes and ten
whites competed for the eight Richmond-Henrico seats. The high­
est number of votes for any candidate was 22,610. The eighth highest 
number was 14,588. In ninth place was Wm. Ferguson Reid, a Negro, 
who received 14,556 votes. ( Richmond Nezvs-Leader, July 14, 1965,
p. 8.)

3 See Appendix D.



17

3). This Court, in N AACP  v. Button (1963) 371 U.S. 
415, 435 noted: “ W e cannot close our eyes to the fact that 
the militant Negro civil rights movement has engendered 
the intense resentment and opposition of the politically dom­
inant white community of Virginia.”

Six o f the seven delegates and one of the two senators 
who live in Richmond reside in “ West End” (Andrews, 
Dep., 31, 33; Dervishian, Dep. 106-108) which is probably 
the most affluent area in the city (Andrews, Dep. 29, 33). 
The other delegate and the other senator live in “ Northside”  
(Andrews, Dep. 31, 33). None of the incumbent legislators, 
by reason of residence, economic interests or political out­
look (especially with respect to race relations), can be said 
to reflect the thinking of any considerable number o f resi­
dents o f “ East End.”

THE QUESTIONS ARE SUBSTANTIAL

I.

The District Court, citing Fortson v. Dorsey, 379 U.S. 
433 (1965), held that the possibility (indeed the certainty) 
that all of the delegates may be chosen from one part rather 
than from all parts of a multi-member district “ exposes no 
defect”  in the apportionment scheme, even where the sub­
stitution of single-member districts would necessarily 
create some constituencies in which persons o f racial or 
political minorities would predominate (App. A. pp. 7-9). 
In Fortson, the Court made clear its reservation of opinion 
whether under the circumstances of a particular case a 
multi-member constituency scheme would unconstitutionally 
operate to minimize or cancel out the voting strength o f 
racial or political elements of the voting population. That 
question, unanswered in Fortson, is the exact question pre­
sented by the facts in the instant case. Georgia’s 1962



18

Senatorial Reapportionment Act, reviewed in Fortson, re­
quired that “ [e]ach Senator must be a resident of his own 
Senatorial District” ; but it also provided that “ the Senators 
from those Senatorial Districts consisting of less than one 
county shall be elected by all o f the voters o f the county in 
which such Senatorial District is located.”  In considering 
this latter proviso, the Court had no occasion to suggest that 
all delegates o f a multi-member district might be validly 
chosen from one part o f the district. I f  such suggestion can 
be found in the Fortson opinion, it lies in the quotation from 
Reynolds v. Sims, 377 U.S. 533 (1964), to which we now 
turn.

II.

As the Court began Section V  of its opinion in Reynolds, 
it noted that it had said all that was necessary to its decision 
of the issues then before it. However, to illustrate the propo­
sitions that identity in the composition or complexion o f 
the two bodies of a bicameral legislature need not follow 
from the fact that one criterion controlled the apportionment 
o f representation in both houses, the Court did suggest that

“ One body could be composed of single-member dis­
tricts while the other could have at least some multi­
member districts.”  (377 U.S. at 577.)

But, in Section V I of the Reynolds opinion, the Court stated 
a more pervasive guide which, for the instant case at least, 
overshadows all else which has been written on the subject:

“ What is marginally permissible in one State may be 
unsatisfactory in another, depending on the particular 
circumstances o f the case.”  (377 U.S. at 578.)

Our attention is thus deflected from consideration of the 
abstract question whether all the delegates may be chosen



19

from one part of 'a multi-member district to the really per­
tinent questions in this case, v iz :

May the Commonwealth of Virginia, where racial dis­
crimination under color o f law yet prevails, arbitrarily com­
bine two multi-member districts when such results in mini­
mizing or cancelling out the voting effectiveness of Negroes 
in the City of Richmond ?

May the Commonwealth of Virginia, where racial dis­
crimination under color of law yet prevails, arbitrarily re­
tain multi-member legislative districting for the City of 
Richmond, when single-member districting would neces­
sarily produce a predominantly Negro district?

III.

Virginia could have divided Richmond into single-member 
districts for both houses of the legislature and thus afforded 
every voter in each of such districts an opportunity (equal 
to that enjoyed by voters in the forty-six single-member 
House of Delegates Districts and the twenty-eight single­
member Senatorial Districts) to cast his ballot for that one 
o f his neighbors and acquaintances who, in the voter’s per­
sonal opinion uninfluenced by city-wide political machina­
tions, would best represent him. Such a course would have 
comported with the Federal constitutional concept of Equal 
Protection in the sense indicated by Mr. Justice Douglas, 
dissenting in Fortson v. Dorsey, supra, v iz :

“ But to allow some candidates to be chosen by the elec­
tors in their districts and others to be defeated by the 
voters of foreign districts is in my view an ‘invidious 
discrimination’— the test o f equal protection under the 
Fourteenth Amendment” .

Such a course, and only such a course, would have complied 
with the view of Virginia’s highest court in Wade v. City of



20

Richmond, 18 Gratt. (59 V a.) 583 (1868) that the appor­
tionment of representation in the General Assembly among 
the counties, cities and towns, which the Constitution of 
1851 effected, was in all reality but a means of reflecting 
representation o f “ persons and property comprised in these 
local departments.”  Such a course, and only such a course, 
would have complied with the letter o f the Constitution of 
Virginia (1902), as amended, viz [emphasis supplied]:

“ § 41. Number and election o f senators.— The 
Senate shall consist o f not more than forty and not 
less than thirty-three members, who shall be elected 
quadrennially by the voters of the several senatorial 
districts on the Tuesday succeeding the first Monday 
in November.

“ § 42. Number and election of delegates.— The 
House of Delegates shall consist o f not more than one 
hundred and not less than ninety members, who shall 
be elected biennially by the voters of the several house 
districts, on the Tuesday succeeding the first Monday 
in November.

“ § 43. Apportionment of Commonwealth into sena­
torial and house districts.— The present apportionment 
of the Commonwealth into senatorial and house dis­
tricts shall continue; but a reapportionment shall be 
made in the year nineteen hundred and thirty-two and 
every ten years thereafter.

“ § 44. Qualifications of senators and delegates; who 
ineligible; removal from district vacates office.— Any 
person may be elected senator who, at the time o f elec­
tion, is actually a resident of the senatorial district and 
qualified to vote for members of the General Assembly; 
and any person may be elected a member o f the House 
of Delegates who, at the time of election, is actually a 
resident of the house district and qualified to vote for 
members o f  the General Assembly. * * * The removal



21

of a senator or delegate from the district for which he 
is elected shall vacate his office ”

The creation of multi-member districts for either house is 
patently a legislative subversion of the above quoted pro­
visions o f the State Constitution. In Reynolds v. Sims, 
supra, the Court observed:

“ In those States where the alleged malapportionment 
has resulted from noncompliance with state constitu­
tional provisions which, if complied with, would result 
in an apportionment valid under the Equal Protection 
Clause, the judicial task of providing effective relief 
would appear to be rather simple.”  (377 U.S. at 584.)

By its mere failure to provide single-member districts for 
the City of Richmond, the State made it reasonably certain 
that the votes o f the citizens o f an identifiable predominantly 
Negro constituency would be absorbed into the larger and 
predominantly white community and thereby be rendered as 
ineffective as if they had not been cast. The 10,975 votes cast 
for the Negro candidate in the 1959 Democratic Primary 
were simply submerged by the votes cas«£by the majority of 
the city’s electorate for the slate o f candidates which had the 
most influential endorsement. With single-member district­
ing, some o f those 10,975 votes would have been effective.

Not only did the Legislature fail to adopt the course pre­
scribed by the State’s Constitution which would have ren­
dered meaningful and effective the elective franchise of 
Richmond’s Negro citizens; the Legislature further widened 
the gap between the text and the application of the Consti­
tution by enlarging the district for the purpose o f further 
diluting or submerging the votes of Richmond’s Negro cit­
izens. What had, or would have been, a 42% potential vot­
ing effectiveness of Richmond’s Negroes in electing five



22

delegates to the General Assembly was reduced to a 29.2% 
potential voting effectiveness in electing eight delegates to 
the General Assembly.

That such a merger, in Virginia, was an abridgment of 
the right to vote because of race and color in violation o f  the 
Fifteenth Amendment appears to be clear. Just as Go-million 
v. Lightfoot, 364 U.S. 339 (I960), struck down Alabama’s 
attempt to nullify Negroes’ political effectiveness by zoning 
them out o f the City o f Tuskegee, so should fall Virginia’s 
patent attempt to nullify the political effectiveness of Rich­
mond’s Negro citizens by zoning them into a larger district 
in which their number will be overwhelmed. As in Gomillion 
is suggested, judicial approval o f this manuever “ would sanc­
tion the achievement by a State o f any impairment o f voting 
rights whatever so long as it was cloaked in the garb o f the 
realignment of political subdivisions”  or legislative appor­
tionment (364 U.S. at 345).

“  ‘The [Fifteenth] Amendment nullifies sophisticated 
as well as simple-minded modes of discrimination.’ ” 
Gomillion v. Lightfoot, supra.

These appellants have not contended and do not contend 
that any state is required to carve out legislative districts 
so as to insure (or make possible) representation by persons 
o f any particular race, religion or place of national origin. 
W e are in agreement with so much of Mr. Justice Douglas’ 
dissent in Wright v. Rockefeller, 376 U.S. 52, 62, 66 
(1964), as is quoted in the opinion of the Court below. 
Specifically, we agree that “ government has no business 
designing electoral districts along racial or religious lines.”  
What is here contended is that government should not com­
bine electoral districts to deny effective political expression 
from those who are confined within racial or political lines.



23

As this Court has noted in Forison v. Dorsey, supra, 
the precise questions here presented have not been settled. 
Unquestionably, the resolution of these issues will have 
far reaching effect upon the meaningfulness of the franchise 
to Negro people in their quest for their rightful share of 
the opportunities which are America’s promise to all. The 
past and current efforts o f the legislative and executive arms 
of our national government to enforce the Fifteenth Amend­
ment will amount to naught if a state may meet and over­
come the increasing political strength of Negroes in any 
given area by expanding the political constituency from time 
to time so as to submerge their votes in the votes of the 
larger white community.

CONCLUSION

It is respectfully submitted that the questions here pre­
sented are substantial and important and that they should be 
considered and decided by this Court.

Richmond, Virginia 
August 6, 1965

Sam u el  W . T ucker 
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Appellants



APPENDIX A



1

U N ITED  STA TE S D ISTR IC T COU RT FOR TH E  
EA STE RN  D ISTR IC T OF V IR G IN IA  

At Alexandria

Civil Action No. 2604 
Harrison Mann, et al.

v.

Levin Nock Davis, et al.

ORDER ON PETITIONS AND COMPLAINTS OF INTER- 
VENORS FROM HENRICO COUNTY, CITY OF RICHMOND 

AND SHENANDOAH COUNTY

Upon consideration of the intervening petition and com­
plaint o f Simeon A. Burnette, et al., designated as the 
Henrico County intervenors, the intervening petition and 
complaint o f William S. Thornton, et al., designated as the 
City of Richmond intervenors, and the intervening petition 
and complaint o f Jesse D. Funkhouser, et al., designated as 
the Shenandoah County intervenors, the answers thereto, 
the evidence adduced thereon, as well as the arguments of 
counsel, on brief and orally, the court for the reasons stated 
in its opinion this day filed, which is adopted as its findings 
o f fact and conclusions of law, orders as follows: 1

1. That the petitions and complaints o f the Henrico 
County and the City of Richmond intervenors be, and they 
are hereby, dismissed, the respondents thereto recovering 
their costs o f the said intervenors;



2

2. That the petition and complaint o f the Shenandoah 
County intervenors be, and they are hereby, sustained in 
respect to the apportionment o f representation o f that 
county in the House of Delegates;

3. That the State and local election officials who are de­
fendants to the said intervening petition and complaint of 
Shenandoah County be, and each of them is hereby, enjoined 
and restrained from acting under and pursuant to so much 
o f Chapter 2 o f the Acts o f the General Assembly o f V ir­
ginia, Extra Session 1964, as declares the representation 
in the House o f Delegates for the 50th and 59th districts; 
that the court now reapportions the said districts so that 
the counties o f Page, Rockingham and Shenandoah and 
the City of Harrisonburg shall be represented jointly by two 
delegates; that the reapportionment of the 50th and 59th 
districts o f Virginia as aforesaid shall be effective for the 
elections, both primary and general, o f members of the 
House o f Delegates from the counties o f Page, Rocking­
ham and Shenandoah and the City of Harrisonburg in the 
year 1965 and thereafter until the General Assembly of 
Virginia shall provide a Constitutionally valid apportion­
ment of representation in the House o f Delegates for 
Shenandoah County; and 4

4. That the court hereby approves the reapportionment 
Acts o f the General Assembly of Virginia adopted at its 
Extra Session in December 1964, insofar as such approval 
may be required to remove any question or doubt o f the



3

validity of any legislation which has been, or may be, passed 
by the General Assembly since the adoption of the said re­
apportionment Acts.

Nothing further remaining to be done in this action, it 
is ordered stricken from the docket, and this order is final.

A lbert V. B ryan
United States Circuit Judge

W alter E. H offm an
United States District Judge

O ren R. L ew is
United States District Judge

April 9th, 1965.



4

U N ITE D  STA TE S D ISTR IC T COU RT FO R T H E  
E A STE R N  D ISTR IC T OF V IR G IN IA  

At Alexandria

Civil Action No. 2604

Harrison Mann, et al.

v.

Levin Nock Davis, et al.

(Argued March 10, 1965 Decided April 9, 1965)

Before B ryan , Circuit Judge, and L ew is and H offm an , 
District Judges.

OPINION

A lbert V. B r ya n , Circuit Judge:

Virginia’s 1964 reapportionment of the State into dis­
tricts for the election of delegates and senators in her 
General Assembly, following our invalidation of the 1962



5

redistricting,1 is here attacked as denying Fourteenth 
Amendment equal protection of the laws. The assault is made 
in three separate intervening petitions in the original action, 
each dealing with a local problem, by certain citizens of 
Henrico County, the City of Richmond and Shenandoah 
County. W e think only Shenandoah can prevail.

Henrico County

The grievance asserted by these intervenors is that 
Henrico County and Richmond were placed in a single dis­
trict, No. 36, for representation in the House of Delegates, 
rather than each made an independent district. Combined, 
these two political subdivisions were given 8 delegates, but 
Henrico pleads for 3 delegates o f its own, leaving the re­
maining 5 to Richmond. The injury from the consolidation, 
according to the county, is that as Richmond has a voting 
power greater than Henrico, the city will be able to elect 
all 8 delegates and Henrico will have no representation by 
its own citizens.

This result, says Henrico, is due to a general disregard by 
the General Assembly of the guide lines and ground rules 
thus far enunciated for legislative apportionment by the 
Supreme Court. E.g. Baker v. Carr, 369 U.S. 186 (1962) ;

1 Mann v. Davis, 213 F.Supp 577 (1962), affirmed sub. nom. Davis v. Mann, 
377 U.S. 678 (1964). By order entered September 18, 1964 this court restored 
its injunction which had been suspended during the appeal. Thereupon the 
Legislature adopted a new apportionment in December 1964. The statute re­
lating to the State Senate appears as Chapter 1, and the enactment relating to 
the House of Delegates as Chapter 2, of the Acts of Assembly, Extra Ses­
sion 1964.



6

Gray v. Sanders, 372 U.S. 368 (1963 ); Westberry v. 
Sanders, 376 U.S. 1 (1964 ); Reynolds v. Sims, 377 U.S. 
533 (1964 ); WMCA, Inc. v. Lomenzo, 377 U.S. 633 
(1964); Maryland Committee v. Tawes, 377 U.S. 656 
(1964 ); Davis v. Mann, 377 U.S. 678 (1964) ; Roman v. 
Sincock, 377 U.S. 695 (1964) ; Lucas v. Colorado General 
Assembly, 377 U.S. 713 (1964 ); Fortson v. Dorsey, 379 
U.S. 433 (1965). Our examination o f the record discloses 
no such trespasses or fouls. To demonstrate the correctness 
o f this conclusion, we review the 1964 reapportionment (the 
A ct), touching particularly upon the features on which 
Henrico found its accusations.

Ideal representation in the House of Delegates, when 
Virginia’s total population according to the 1960 census is 
distributed among its 100 delegates, is 39,669 persons for 
each member. Richmond had a population of 219,958, 
Henrico 117,339. Applying these figures, it appears that 
Henrico would be entitled to 2 delegates and wanting but 
3,668 residents for a third. Richmond alone could justify 5 
delegates, with 21,613 towards a sixth. To have awarded 
only 5 delegates to Richmond would have meant that each 
o f its delegates represented 43,911, or 4,242 persons in ex­
cess of the norm. With Henrico* not quite earning 3 dele­
gates, but Richmond due more than 5, the solution of the 
Virginia Assembly was to give the two areas 8 delegates 
jointly. There would then be 42,164 persons per delegate, 
a representation fairly nearing the par of 39,669.

A  multi-member district, though linking more than one 
political subdivision, is not Constitutionally impermissible.



7

Fortson v. Dorsey, supra, 379 U.S. 433 (1965). A  multi­
county or a county-city district is also legal. Id. But the 
possibility that a delegate or delegates may be chosen from 
one part o f a district— whether a multi-county or a county- 
city district— rather than from another exposes no defect 
in the allotment. Id. In passing, it is at least noteworthy 
that Henrico made no objection in 1962 when the reappor­
tionment act gave Henrico 1 delegate and then assigned 8 
delegates jointly to Richmond and Henrico. While this dis­
tribution was in effect in 1963, we are told that a number 
o f the 8 winning candidates, although resident in Richmond, 
received more votes in Henrico than did the candidates 
from that county. This would seem to refute somewhat 
Henrico’s insistence that its citizens prefer to have their 
delegates come from Henrico.

The multi-member policy here does not have the “ un­
desirable features”  mooted in Lucas v. Colorado General 
Assembly, supra, 377 U.S. 713, 731 with footnote 21 
(1964). The unification does not constitute so spacious or 
“ populous” a territory as to demand the establishment of 
“ identifiable constituencies.”  Indeed, Henrico now pledges 
its willingness to have 3 delegates elected at large from 
among its whole population of 117,339 and without a smaller 
constituency than its entire area.

The effect o f the Act has not been to obliterate the tradi­
tional integrity in Virginia o f city and county lines. The 
custom was sanctioned in Davis v. Mann, supra, 377 U.S. 
678, 686 (1964). The individuality of Henrico and Rich­
mond is observed by the design o f a separate senatorial 
district for each. W e see no inconsistency in allocating 
senators on a different basis from delegates. Such a varia­
tion has been authoritatively approved, when, as presently,



8

it may tend to “ balance off minor inequities.”  Reynolds v. 
Sims, supra, 377 U.S. 533, 577, 579 (1964).

Physical factors could reliably have directed the judg­
ment o f the General Assembly in determining upon the 
union of Richmond and Henrico. They form a compact and 
contiguous territory. I f they may not agree politically, con- 
cededly their interests are interknit and common in many 
aspects. The county is the residence of hundreds of business, 
professional and otherwise occupied persons plying their 
callings in the city. In fact, while the two are distinct 
governmental units, the courthouse of the county is situate 
well within the city’s corporate limits. At all events, the 
Act does not in any degree devalue the vote in either Rich­
mond or Henrico below the Constitutional standard of 
weight and fineness, “ one person, one vote.”

City of Richmond

Certain Richmond Negro residents question the fusion of 
the city and Henrico County for the election o f delegates 
on the ground that it deprives Negro citizens o f a chance 
to elect one o f their race to the General Assembly. They 
point out that the population o f Richmond consists of 92,331 
non-white and 127,627 white persons; that in Henrico the 
non-white residents number 6,070, the white 111,269; and 
that the potential vote of Negroes in Richmond is, by the 
coadunation, reduced from 42% (the percentage of non­
white in Richmond) to 29% (the percentage of non-whites 
in the aggregate population o f the city and Henrico.)

Further, they suggest that the Negro communities in 
Richmond are so located that any division of the city into



9

S fairly equal segments, each embracing a sufficient number 
o f inhabitants for a delegate, would create 1 or more dis­
tricts in which Negroes would be the majority. Additionally, 
they say that if the city were divided into 2 substantially 
equal districts with the allotment o f 1 o f Richmond’s 2 
senators to each district, the colored population in at least 1 
might elect a senator.

Consequently, these intervenors suggest that Richmond 
be assigned 5 delegates apart from Henrico, and that the 5 
be distributed, 1 to a district, among 5 substantially equal 
districts. Likewise, they ask that the city be fairly split into 
2 senatorial districts. These contentions are underbraced by 
advertence to the Virginia constitutional injunction that 
legislators be elected by the voters of the several senatorial 
and house districts, and that apportionment of the “State”  
into such districts be made every ten years.§§ 41, 42 and 43. 
From this they conclude that these clauses command legis­
lative allocation, both within and without city and county 
marches, by population and not according to existing 
governmental units. Omission of such delineations inside 
the city and State-wide, the intervenors aver, violates the 
Fourteenth and Fifteenth Amendments, as a deprivation of 
equal protection o f the election laws and abridgement of 
the right to vote. W e disagree.

To begin with, we reaffirm our earlier declaration of the 
validity o f conjoining Richmond and Henrico. Moreover, as 
we have also shown, adherence to municipal boundaries in 
establishing legislative districts has been declared to be 
altogether free of legal infirmity. Furthermore, the racial 
exclusion decried in Gotnillion v. Lic/Jitfoot, 364 U.S. 399 
(1960) and universally forbidden is not evident. Neither



10

Richmond, nor any other city or county in Virginia has 
in her history ever been sub-districted. Even councilmen 
for the local government of Richmond are elected at large, 
and this without question by either race.

The concept of “ one person, one vote” we understand, 
neither connotes nor envisages representation according to 
color. Certainly it does not demand an alignment of districts 
to assure success at the polls o f any race. No line may be 
drawn to prefer by race or color.

As Justice Douglas, though in dissent but obviously 
undeniably, tartly put it in Wright v. Rockefeller, 376 U.S. 
52, 62, 66 (1964):

“ The fact that Negro political leaders find advantage 
in this nearly solid Negro and Puerto Rican district is 
irrelevant to our problem. Rotton boroughs were long a 
curse o f democratic processes. Racial boroughs are also 
at war with democratic standards.”

Page 66:

“ . . . The principle o f equality is at war with the notion 
that District A  must be represented by a Negro, as it 
is with the notion that District B must be represented 
by a Caucasian, District C by a Jew, District D by a 
Catholic, and so on. . . . O f course race, like religion, 
plays an important role in the choices which individual 
voters make from among various candidates. But 
government has no business designing electoral districts 
along racial or religious lines. . . . ”



11

Previously Justice Douglas had said for the Court in 
Gray v. Sanders, supra, 372 U.S. 368, 380 (1963) :

. . The concept o f political equality in the voting 
booth contained in the Fifteenth Amendment extends to 
all phases o f state elections, . . . and, as previously 
noted, there is no indication in the Constitution that 
homesite or occupation affords a permissible basis for 
distinguishing between qualified voters within the 
State.”

Shenandoah County

Certain citizens of Shenandoah County protest they have 
been deprived of Constitutional rights by the 1964 assign­
ment of delegates in the 50th and 59th districts. The 
former, which has been assigned 1 delegate, comprises Page, 
Rockingham, Shenandoah Counties and the City o f Har­
risonburg. The 59th district encompasses only Rockingham 
County and Harrisonburg but it is also given 1 delegate. 
Harrisonburg is geographically within Rockingham County. 
Over-representation o f Shenandoah County under the 1962 
reapportionment was noted in Davis v, Mann, supra, 377 
U.S. 678, 688; it had “ one seat in the Virginia House” 
although its population was 21,825 as compared to the 
“ ideal ratio o f one delegate for each 39,669 persons.”

In 1964 Shenandoah’s 21,825 people were leagued with 
Rockingham’s 39,559, Page County’s 15,572, and Harrison­
burg’s 12,842, increased to 13,804 by an annexation in 
1962.* Obviously this readjustment erects a district of

* These figures are taken from the face of the complaint of the Shenandoah 
Intervenors. The U.S. Bureau of Census’ U.S. Census o f  Population : 1960 
General Population Characteristics, Virginia. Final R ep ort P C (1 )-4 8 B , reveals 
Rockingham’s population as 40,485 and Harrisonburg’s as 11,916 rather than 
12,842 prior to annexation.



12

90,760, far above criterion of 39,669. Rockingham and 
Harrisonburg are saved from injustice by their additional 
delegate, but Shenandoah with Pag'e suffers from a clear 
under-representation.

Invidious discrimination has thus been visited upon 
Shenandoah. With primary elections for the General 
Assembly scheduled for July of this year, and candidates’ 
filing times therefor expiring in April, correction of this 
injury to Shenandoah County cannot await the convening 
o f the General Assembly in 1966. Consequently, we are 
required to act to prevent the watering down of the Shenan­
doah votes. Until the General Assembly can rectify the 
inequity, we must set aside the 1964 apportionment o f the 
50th and 59th districts. In lieu of the present provision for 
them, the court will order that the counties o f Page, Rock­
ingham and Shenandoah and the City o f Harrisonburg be 
assigned 2 delegates to represent all four of these political 
subdivisions jointly. This adjustment will effectuate a rep­
resentation o f 45,380 persons per delegate. While this is 
above the proper ratio, we do not deem it an unfair approach 
in the circumstances.

Recapitulation

The record does not authorize attribution to the General 
Assembly or caprice or an unacceptable motive in the 
Henrico and Richmond reapportionment. To the contrary, 
a firm foundation may be seen for it. For Shenandoah 
County, however, the imbalance in representation is obvious 
and fatal.



13

An order will be entered dismissing the intervening com­
plaints o f Henrico and Richmond, but sustaining the claim 
of the Shenandoah intervenors, with the relief we have 
prescribed. The order will also express our approval o f the 
Act insofar as such approval is required to remove any 
question or doubt o f the validity of any legislation which 
has been, or may be, passed by the General Assembly since 
the adoption o f the Act, our order of September 18, 1964 
having required the General Assembly acting thereafter to 
make a Constitutionally valid reapportionment o f the State 
before undertaking any other legislation.



APPENDIX B



1

IN T H E  U N ITE D  STA TE S D ISTR IC T COURT 
FO R T H E  EA STE R N  D ISTR IC T OF V IR G IN IA  

At Alexandria

Civil Action No. 2604

H ARR ISO N  M AN N , et al.,

v.

LE V IN  NOCK D A V IS, et al.,

ORDER ON MANDATE

This action came on to be heard upon the mandate of 
the Supreme Court of the United States affirming the judg­
ment order of this Court entered November 28, 1962, upon 
the motions of the plaintiffs and intervening plaintiffs for 
an order on said mandate and the argument o f counsel; 
upon a consideration of all of which it is



2

D eclared, A djudged and  O rdered :

1. That the Governor o f Virginia and the Attorney Gen­
eral be dismissed as parties defendant to this action;

2. That the motion o f the defendants to dismiss the com­
plaint and intervening petition be denied;

3. That the acts o f the General Assembly of Virginia, 
approved April 7, 1962, appearing as Chapter 635, page 
1266, and Chapter 638, page 1269 of the 1962 Acts o f the 
Assembly of Virginia, deny the plaintiffs and plaintiff-in­
terveners and those persons similarly situated the equal 
protection of the laws in contravention of the Fourteenth 
Amendment o f the Constitution of the United States, and 
that the said acts for that reason are void and of no effect;

4. That the order entered by this court on November 28, 
1962 be in all respects reaffirmed but the enforcement o f said 
order be further stayed until December 15, 1964 inso­
far as necessary to afford ample time for the General As­
sembly of Virginia to be called and convened in special ses­
sion, if the Governor or the requisite number o f members 
o f the General Assembly are so advised, for the purpose of 
enacting constitutionally valid reapportionment statutes for 
both houses of the General Assembly, and enact statutes 
to effectuate said reapportionment by providing for the 
election of members o f both houses of the General Assembly 
from the districts of the State as reapportioned;



3

5. That, for the reasons set forth in the opinion filed 
this day, the terms of the present members o f the House of 
Delegates shall not be terminated by force of the said order 
before, but shall terminate upon, the expiration o f the 
terms for which they were elected in November, 1963 or 
in any special election thereafter, that is on the day before 
the second Wednesday of January, 1966;

6. That, for the reasons set forth in said opinion, the 
terms o f the present members of the Senate, who were 
elected in November 1963 or in any special election there­
after, shall not be terminated by force of the said order 
before, but shall terminate upon, the expiration o f the 
terms o f the members o f the House of Delegates elected in 
November, 1963 or thereafter -as aforesaid, that is the day 
before the second Wednesday in January, 1966;

7. That the motion o f  the plaintiffs and plaintiff-inter­
veners that the present General Assembly be enjoined at this 
time from enacting any legislation other than the said re­
apportionment statutes be denied; but by way o f a declara­
tory judgment the court now states that after the enact­
ment of a constitutionally valid reapportionment statute 
the present General Assembly may until the 2nd Wednesday 
in January 1966 consider and pass such legislation as it 
deems necessary or proper in the public interest, unless 
before that date through special elections a General As­
sembly is chosen in conformity with the new reapportion­
ment statute.

8. That the motion o f the defendants for a continuance 
is also denied, in view of the stay herein granted of the 
effectiveness o f the order issued by this Court on November 
28, 1962.



4

9. That the plaintiffs and plaintiff-interveners recover 
o f the defendants their statutory costs, assessed or assess­
able in the Supreme Court and in this court, and that the 
motion of the plaintiff-inteveners for an allowance of counsel 
fees as a part o f said costs is denied; and

10. That if the steps stated in paragraph 4 hereof for 
reapportionment be not taken before December 15, 1964, 
or if taken they do not meet the requirements of a constitu­
tionally valid reapportionment, then the plaintiffs, the plain- 
tiff-interveners and any part ( sic) hereafter granted leave to 
intervene, may apply to the court for such further orders 
as may be required; and jurisdiction of this action is hereby 
retained for entry o f such other orders as may be necessary 
or proper.

United States Circuit Judge 

United States District Judge 

-United States District Judge

September 18, 1964.



5

IN  T H E  U N ITED  STA TE S D ISTR IC T COURT 
FO R T H E  EA STE RN  D ISTR IC T OF V IR G IN IA  

A t Alexandria

Civil Action No. 2604 

H A R R ISO N  M AN N  et al„ 

v.

LE V IN  N OCK D A V IS  et at,

(Argued September 10, 1964 Decided 1965)

Before B r ya n , Circuit Judge, and H offm an  and L ew is, 
District Judges.

OPINION UPON ORDER ON MANDATE

A lbert V. B ryan , Circuit Judge:

A  foremost concern in framing the order on the mandate 
o f the Supreme Court affirming our original decree is the 
question of the maximum period in which the present, 
1963, General Assembly elected under the condemned 
statute may still function and with what powers. In our 
opinion it must expire as to both houses not later than the 
2nd Wednesday in January 1966.



6

W e think the 1963 Assembly necessarily is empowered 
to enact the requisite reapportionment laws. There is no 
other body to do so, and unless its jurisdiction is recognized 
for this purpose the State would be helpless to accomplish 
the reapportionment. The Supreme Court has tacitly ap­
proved this accordance o f provisional vitality to the existing 
legislature. Maryland Committee v. Tawes, 377 U.S. 656, 
675 (1964 ); Reynolds v. Sims, 377 U.S. 533, 585 (1964) 
adopting the view expressed by Justice Douglas concurring 
in Baker v. Carr, 369 U.S. 186, 250 footnote 5.

W e think, also, that after the 1963 Assembly has enacted 
a constitutionally valid reapportionment statute— but not 
before then— and during the interval between its adoption 
and the commencement of the terms of the Senators and 
Delegates chosen in the 1965 elections, vide post, the A s­
sembly should not be restrained from considering and pass­
ing such legislation as it considers necessary or proper in 
the public interest. I f  the present legislature could not act 
in this interim, a potentially dangerous interregnum could 
result, for there would be no legislature available in an 
emergency. Moreover, if this authority were not conceded, 
special elections for the creation of a new General Assembly 
would have to be called immediately after the passage of the 
reapportionment statute. This would mean an election of 
Delegates to serve for a matter of months, when a primary 
election o f Delegates is probable in July and a regular 
general election is set for November, 1965. That would 
be an undue burden upon the State elective processes. In 
these exigencies general principles o f equity, as noted by the 
Supreme Court in the decisions just cited, sustain an order 
permitting such a temporary continuance o f the powers of 
the current legislature.



7

In the effort to minimize disruption of the State’s elective 
processes as far as possible, but still consistently with our 
first order, it is well to recall those processes and consider 
their application here. When our finding of invalidity in the 
legislative apportionment was made in November 1962, 
both houses o f the General Assembly were to stand for elec­
tion the following year, 1963. During the temporary stay 
of enforcement of this finding, the 1963 election proceeded 
upon the unconstitutional apportionment. Delegates were 
then chosen for 2-year terms expiring on the 2nd Wednes­
day in January 1966, and the Senators were selected for 
4 years each, that is until the 2nd Wednesday in January 
1968.

Orderly procedure would, therefore, suggest that the 
1963 House of Delegates should continue in being until the 
expiration o f their terms in January 1966. Cf. Reynolds v. 
Sims, supra, 377 U.S. 533, 585 (June 15, 1964). In the 
November 1965 general election a House of Delegates will, 
under the Virginia law, be elected to assume their duties on 
the 2nd Wednesday in January 1966. O f course, the 1965 
House would be serving under the new apportionment.

As noted, however, the 1963 Senate would not normally 
leave office until January 1968. Elected on a void pattern 
of representation, there is no warrantable foundation for its 
accreditation beyond January 1966. Further, if it should be 
allowed to survive until 1968, the General Assembly— from 
January 1966 to January 1968— would be composed of a 
House of Delegates elected on one (a valid) scheme of ap­
portionment with a Senate elected upon another (in­



8

validated) plan. This too, would be constitutionally un­
justifiable. Together the two houses in a bicameral system 
form a unitary and entire Legislature. For equality of 
popular reprsentation they are mutually complementary, 
and constitutional validity is not fulfilled if one house is 
deliberately permitted to lag behind the other in seeking 
fairness o f representation. Cf. Maryland Committee v. 
Tarwes, supra, 377 U.S. 656, 673.

Incidentally, practical difficulties might develop if the 
life o f the 1963 Senate lasted until 1968. In the event of 
vacancies in the Senate, as an illustration, they could not be 
filled because no elections may be conducted under the nulli­
fied apportionment statutes. Reynolds v. Sims, supra, 
377 U.S. 533, 585. Probably none could be held under the 
new act because o f the subsequent rearrangement o f the 
district. While such eventualities might occur in the House 
of Delegates also, the opportunity there for such con­
tingencies is for one year only— 1965.

For these reasons we hold that the terms of the 1963 
elected Senators as well as Delegates must come to an end 
not later than January 1966. Unavoidably, this will mean a 
special election of Senators to serve from January 1966 to 
January 1968. However, to repeat, we have stated only the 
maximum limits o f the life o f the present legislature. W e 
do not mean to say that special elections may not be called



9

earlier than November 1965, if the legislature desires, 
so that a General Assembly under the new reapportionment 
statute might be constituted before January 1966.

United States Circuit Judge

September 18, 1964.

W e concur:

United States District Judge 
United States District Judge



APPENDIX C



1

Henrico Plain tiff-Intervenars’ Exhibit 37D

C H A P TE R  1

An Act to amend and reenact § 24-14, as amended, of the 
Code of Virginia, relating to State senatorial districts.

[S 1]

Approved Dec. 2, 1964

Be it enacted by the General Assembly of Virginia:
1. That § 24-14, as amended, o f the Code o f Virginia, be 
amended and reenacted as follows:

§ 24-14. The State is hereby divided into * thirty-three 
districts entitled to senators as follows:

First.— The counties o f Accomack, Northampton, * 
Mathews, Gloucester and York, one.

Second.— Norfolk city, * three.

Third.— * The cities of Chesapeake, Portsmouth and Vir­
ginia Beach, three.

Fourth.— The counties of Halifax, Charlotte, * Prince 
Edward, Lunenburg and Nottoway and the city of South 
Boston, one.

Fifth.— The counties o f Isle o f Wight, Nansemond, 
Southampton, and the cities o f Suffolk and Franklin, one.



2

Sixth.'— The counties o f Greensville, Janies City, Prince 
George, Surry and Sussex, and the * cities o f Hopewell and 
Williamsburg, one.

Seventh.— The counties o f Brunswick, * Dimmddie and 
Mecklenburg, and the city of Petersburg, one.

Eighth.— The counties o f * Arlington and Fairfax, and 
the cities of Fairfax and Falls Church, one.

Ninth.— Arlington county, one.

* Tenth.— The counties o f Appomattox, Buckingham. * 
Amherst, Nelson and * Campbell, one.

* Eleventh.— * Bedford County and city o f Lynchburg, 
one.

^Twelfth.— The counties o f Henry, Patrick and Pittsyl­
vania, and the cities of Danville and Martinsville, two.

* Thirteenth.— The counties o f * Carroll, Floyd, * Frank­
lin and Montgomery, and the * cities of Galax and Radford, 
one.

* Fourteenth.— The counties of Washington, Lee and 
Scott and the city o f Bristol, one.

* Fifteenth.— The counties o f Dickenson, Russell and 
Wise and the city of Norton, one.

* Sixteenth,— The counties o f Buchanan, * Smyth and 
Tazewell, one.

* Seventeenth.— The counties o f Bland, Giles, Pulaski, 
Craig, Grayson and Wythe, one.



3

* Eighteenth.— The counties o f Alleghany, * Bath) Bote­
tourt, * and * Roanoke, and the cities o f * Clifton Forge and 
Covington, one.

* Nineteenth.— The counties: o f Augusta, * Rockbridge 
and Highland, and the cities of Buena Vista, Staunton and 
Waynesboro, one.

* Twentieth.— The counties o f Page, Rappahannock, 
Rockingham and Warren, and the city of Harrisonburg, 
one.

* Twenty-first.— The counties of Clarke, Frederick, 
Shenandoah and Loudoun and the city of Winchester, one.

* Twenty-second.— The counties o f Albemarle, Fluvanna, 
Green, Cumberland, Powhatan and Madison, and the city 
of Charlottesville, one.

* Twenty-third.— The counties o f Goochland, Louisa, 
Orange, * Spotsylvania, Culpeper, Caroline, King George. 
and the city of Fredericksburg, one.

* Twenty-fourth.— The counties o f Fairfax and the cities 
of Fairfax and Falls Church, two.

* Twenty-fifth-—The counties o f * Prince William, * 
Stafford, and Fauquier, one.

* Twenty-sixth.— The counties o f * Hanover, King W il­
liam, Essex, King and Queen, Middlesex, Westmoreland, 
Nor thumb er land, Richmond and Lancaster, one.

* Twenty-seventh.— City o f Newport News *, one.



4

* Twenty-eighth.— City of Hampton, one.

* Twenty-ninth.— The counties o f Charles City, Chester­
field, * Amelia and New Kent and the * city o f Colonial 
Heights *, one.

* Thirtieth.— Richmond city, two.

* Thirty-first.— County of Henrico, one.

* Thirty-second.— City of Roanoke, one.

* Thirty-third.— City o f Alexandria, one.

Dec. 10, 1964.

A  TR U E  COPY, T E S T E :

George R. R ich

Clerk of the House of Delegates and 
Keeper of the Rolls of the State



5

Henrico Plaintiff-Intervenors’ Exhibit No. 11

C H A P T E R  2

An Act to amend and reenact § 24-12, as amended, o f the 
Code of Virginia, relating to apportionment of the mem­
bers of the House of Delegates.

[H  1]

Approved December 2, 1964

Be it enacted by the General Assembly of Virginia:

1. That § 24-12, as amended, o f the Code o f Virginia, be 
amended and reenacted as follows:

§ 24-12. Members o f the House o f Delegates shall be 
distributed and apportioned, and each county, city and 
combination is entitled to representation in the House of 
Delegates by a delegate, or by delegates as follows:

* First.— Chesapeake, two.

Second.— Accomack and Northampton, one.

Third.— Albemarle and Greene, one.

Fourth.— Charlottesville, one.

Fifth.— Alexandria, two.

Sixth.— Alleghany, Botetourt, Covington and Clifton 
Forge, one.

Seventh.— Amelia, * Lunenburg and Nottoway, one.



6

Eighth.— Amherst and Lynchburg, one.

Ninth.— Arlington, * four.

Tenth.— Augusta, Highland, Staunton and Waynesboro, 
two.

Eleventh.— Bedford, one.

Twelfth..— Bland, * Craig, Giles, Pulaski and Wythe, * 
two.

* Thirteenth.— Danville and Pittsylvania, one.

Fourteenth.— Brunswick and * Dinwiddie, one.

Fifteenth.— Buchanan, one.

Sixteenth.— Russell and Dickenson, one.

* Seventeenth.— Roanoke City and Roanoke County, one.

Eighteenth.— Campbell, one.

Nineteenth.— Caroline, King George, Essex and King 
and Queen, one.

* Twentieth.— Fairfax County, and the cities of Alexan­
dria, Fairfax and Falls Church, one.

Twenty-first.— * James City, * York and Williamsburg, 
one.

Twenty-second.— Charlotte, Cumberland and Prince Ed­
ward, one.



7

Twenty-third.— Chesterfield and Colonial Heights, * two.

Twenty-fourth.— Clarke, Frederick and Winchester, one.

Twenty-fifth.— Danville, one.

Twenty-sixth.— Hampton, * two.

Twenty-seventh.— Fairfax County and cities o f Fairfax 
and Falls Church, * six.

Twenty-eighth.— Fauquier, Warren and Rappahannock, 
one.

Twenty-ninth,— Fluvanna, Goochland, * Louisa and 
Powhatan, one.

Thirtieth.— Franklin County and Floyd, one.

Thirty-first.— Gloucester, Mathews, New Kent, Charles 
City and Middlesex, one.

Thirty-second.— Carroll, Grayson and Galax, one.

Thirty-third.— Greensville, Surry and Sussex, one.

Thirty-fourth.'— Halifax and South Boston, one.

Thirty-fifth.— Hanover and King William, one.

Thirty-sixth.— Henrico, * and city of Richmond, eight.

Thirty-seventh.— Henry, Patrick and Martinsville, two.

Thirty-eighth.— Isle o f Wight, * Southampton and * city 
of Franklin, one.



8

Thirty-ninth.— Northumberland, Westmoreland, Lancas­
ter and Richmond County, one.

Fortieth.— Newport News, three.

Forty-first.— Lee, Wise, and city o f Norton, two.

Forty-second.— Loudoun and Prince William, * two,

Forty-third.— Lynchburg, one.

Forty-fourth.— Madison, Culpeper and Orange, one.

Forty-fifth.— Mecklenburg, one.

Forty-sixth.— Montgomery and Radford, one.

Forty-seventh.— Nansemond and Suffolk, one.

Forty-eighth.— Nelson *, Appomattox and Buckingham, 
one.

* Forty-ninth.— Norfolk City, * seven.

* Fiftieth.— Page *, Rockingham, Shenandoah and Har­
risonburg, one.

* Fifty-first.— Petersburg *, one.

* Fifty-second.—Pittsylvania, * one.

* Fifty-third.— Portsmouth, * three.

* Fifty-fourth.— Prince George * and Hopewell, one.

* Fifty-fifth.— * Virginia Beach, two.



* Fifty-sixth.— Roanoke County, one.

* Fifty-seventh.— Roanoke City, two.

* Fifty-eighth.— Rockbridge, Bath and Buena Vista, one.

* Fifty-mnth.— Rockingham and Harrisonburg, * one.

* Sixtieth.— Smyth, one.

* Sixty-first.— Spotsylvania, Stafford and Fredericks­
burg, one.

* Sixty-second.— Tazewell, one.

* Sixty-third.— Washington, Scott and Bristol, two.

And the districts hereby created are hereby numbered one 
(1 ) to * sixty three (63) inclusive.

The reference to a county or city in this section is to the 
area comprising such county or city as of January one, 
nineteen hundred sixty-five.

2. I f any part or parts, section, subsection, sentence, clause 
or phrase o f this act or the application thereof to any person 
or circumstance is for any reason declared unconstitutional, 
such decisions shall not affect the validity of the remaining 
portions of this act which shall remain in force as if such 
act had been passed with the unconstitutional part or parts, 
section, subsection, sentence, clause, phrase or such ap­
plication thereof eliminated; and the General Assembly 
hereby declares that it would have passed this act if such



10

unconstitutional part or parts, section, subsection, sentence, 
clause or phrase had not been included herein, or if such 
application had not been made.

Dec. 10, 1964

A  TR U E  COPY, T E S T E :

George R. R ic h

Clerk of the House of Delegates and 
Keeper of the Rolls of the State



APPENDIX D



1

APPENDIX TO AND EXCERPT FROM 
RICHMOND PLAINTIFF-INTERVENORS’ REPLY BRIEF 

IN THE DISTRICT COURT

Public Documents Reflecting Virginia’s Official Reaction To Brown v.
Board of Education And Related Fourteenth Amendment Rights

Senate Document No. 1, 1955 Extra Session— Report o f 
Commission on Public Education.

Acts o f Assembly 1955, Extra Session, Chapter 2— Pro­
posing amendment to § 141 of the Constitution.

Acts o f Assembly 1956, Chapter 1— Providing for con­
stitutional convention.

Senate Joint Resolution No. 3, 1956 Session— Interposi­
tion.

Acts o f Assembly 1956, Extra Session:

Ch. 31— Registration of corporations supporting litiga­
tion.

Ch. 32— Same; Penalties for refusing information.

Ch. 33— Provision for disbarment or suspension of 
lawyers.

Ch. 34— Committee on Offenses Against the Adminis­
tration of Justice.



2

Ch. 35— Redefining Barratry.

Ch. 36—-Punishing the encouragement o f litigation.

Ch. 37— Committee on Law Reform and Racial Activ­
ity.

Ch. 39— Accreditation of certain public and private 
schools.

Ch. 47— Prescribing conditions for legal aid.

Ch. 56— Making public school funds available for 
private schools.

Ch. 57— Authorizing payment o f local funds.

Ch. 58— Requirement of funds for nonsectarian 
schools.

Ch. 59— Providing that no child be required to attend 
integrated school.

Ch. 60— Providing for payment of pupil transporta­
tion.

Ch. 61— Superintendent given power to assign and re­
assign teachers.

Ch. 62— School Board empowered to pay grants with­
out approval o f Supervisors.



3

Ch. 63— Providing for employment o f attorneys to 
defend school boards.

Ch. 64— Extending retirement benefits to private 
school teachers.

Ch. 65— Authorizing Attorney General to assist 
school boards.

Ch. 66-—Providing for shortening school terms.

Ch. 67— Adjusting school budget procedures.

Ch. 68— Vesting power to control schools in Governor.

Ch. 69— Defining efficient system of public schools.

Ch. 70— Creating Pupil Placement Board.

Ch. 71, Items 133, 134,137, 138 and 143— Amendment 
o f Appropriation Act.

Acts o f Assembly, 1958:

Ch. 4b— Authorizing Governor to operate schools 
policed by military troops.

Ch. 213— Providing for appearance o f attorneys in 
certain proceedings.

Ch. 253— Regulating legal aid; disbarment for viola­
tion.



4

Ch. 319— To close schools under certain conditions.

Ch. 373— Committee on Offenses Against the Admin­
istration o f Justice.

Ch. 500— Pupil Placement Board.

Ch. 506— Registration of members o f corporations 
“ engaged in practice of law.”

Ch. 540— Orders from Federal government to State 
Militia.

Ch. 608— Subpoena power of joint committees.

Ch. 631— Restoring closed school to school system.

Ch. 642, Item 129—Mixed schools not efficient.

House Joint Resolution No. 50, 1958 Session— Directing 
Virginia State Bar to review and act upon information ob­
tained by legislative investigating committees.

Acts o f Assembly 1959, Extra Session:

Ch. 1— Tuition grants.

Ch. 3, Item 158A— Appropriation for tuition grants. 

Ch. 6— Tuition grants.

Ch. 32— To close schools policed by Federal authority.



5

Ch. 39— R e : Committee on Offenses Against the Ad­
ministration of Justice.

Ch. 49— Transportation grants for school children. 

Ch. 50— Repayment o f teachers’ scholarships.

Ch. 53— Scholarship grants.

Ch. 71— Pupil placement.

Ch. 79— Changed local school budget procedure.

Ch. 80— Waiver of building standards for private 
schools.

Ch. 96, Items 158 A  and B— Scholarship grants.

Acts o f Assembly, 1960:

Ch. 97— Increased penalties for trespass.

Ch. 98— Encouraging others to trespass.

Ch. 99— Conspiring to trespass.

Ch. 191— Tax credits for contributions to private 
schools.



6

EXCERPT FROM REPLY BRIEF

*  *  *

[page 7]
There yet remain in Virginia’s Constitution and statutes 

several items o f legislation the history, purpose or effect of 
which reflect official opposition to the aims of the framers 
o f the Fourteenth Amendment or suggest legislative reex­
amination in the light o f the policy o f the Nation on the 
subject of race relations, e .g .:
[page 8]

The 1956 Amendment to Section 141 of the Con­
stitution permitting support o f “ private” segregated 
schools.

Section 140 of the Constitution yet purporting to 
proscribe the teaching o f white and colored children 
in the same school.

Code § 1-14. Colored persons and Indians defined.

Code §2-86.1. Advice and legal assistance to local 
school boards. (1956 Ex. Sess., C. 65.)

Code § 2-90.1. Attorney General may expend funds 
for special counsel to prosecute persons illegally prac­
ticing law. (1958, C. 235.)

Code §7-35. Official song (for  text o f which see Acts 
1940, p. 942). [Carry Me Back to Old Virginia]

Code §§ 9-48.1 through 9-48.6. Commission on Con­
stitutional Government. (1958, C. 233.)

Code §§20-50 through 20-60. Colored Persons; Mar­
riage between white and colored persons.



7

Code §§ 22-115.29 through 22-115.37. Grants for 
Educational Purposes.

Code §§ 22-188.50 and 22-188.51. Schools disturbed 
by Federal Policing. (1959 Ex. Sess., C. 32.)

Code §§ 22-232.1 through 22-232.31. Enrollment or 
Placement of Pupils. (1956 Ex. Sess., Ch. 70; 1959 
Ex. Sess., Ch. 71.)

Code §§ 23-10 through 23-13. Aid to persons denied 
admission to state institutions of higher learning.

Code §§ 23-165 through 23-181 Virginia State Col­
lege and Virginia State School.

Code §§ 30-42 through 30-51. Committee on offenses 
against the administration o f justice. (A  revision o f 
Ch. 37 Acts 1956, Extra Session.)

Code §§ 37-5, -6, -7, -183, -185, -192, -212, etc. 
(State Institutions for Insane Persons, etc.)