City of Lockhart v United States and Alfred Cano Appellee's Motion to Affirm

    No. 81-802

IN THE

Supreme Court of tfte Hmtefo H>tateg

City of Lockhart,

v.
Appellant,

United States and Alfred Cano,
Appellees.

On Appeal From The United States District Court 
For The District Of Columbia

APPELLEE’S MOTION TO AFFIRM

Vilma S. Martinez 
Morris J. B alter
Mexican American Legal Defense 

and Educational Fund 
28 Geary St., 6th Floor 
San Francisco, CA 94108

William L, Robinson 
Norman J. Chachkin 
Lawyers’ Committee for Civil Rights 

Under Law
733 15th St., N.W., Suite 520 
Washington, DC 20005
Of Counsel:
Raul Noriega 
Rolando L. Rios

J oaquin G. Avila 
J ose Garza 
Norma V. Solis
Mexican American Legal Defense 

and Educational Fund 
517 Petroleum Commerce Building- 
201 N. St. Mary’s Street 
San Antonio, TX  78206
J ose Camacho
T exas Rural Legal Aid , Inc .
716 West Avenue 
Austin, TX 78701

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.



INDEX
Page

Table of Authorities.................. ii
Statement of the Case.................. 2
ARGUMENT.... ......................   .11

I. LOCKHART FAILED TO CARRY 
ITS BURDEN TO PRECLEAR 
ELECTION CHANGES COVERED 
BY SECTION 5.................. 11

A. The Numbered Post 
System And The Staggered 
Terms Provision Were 
Changes Subject to 
Section 5 Preclearance...11

B. Both The Numbered Post 
System And The Staggered 
Terms Provisions Have 
Discriminatory Effect
On Mexican American 
Voters................... 24

II. THE DISTRICT COURT'S DENIAL 
OF PRECLEARANCE DID NOT 
INTERFERE WITH LOCKHART'S 
USE OF OTHER VALID PROVISIONS 
OF THE HOME RULE CHARTER.....27

Conclusion 29



TABLE OF AUTHORITIES

Cases
Allen v. Board of Elections,
393 U.S. 544 (1969).................... 13

Beer v. United States,
425 U.S. 130 (1976)........  3,16,17,19,26

Berry v. Dole,
438 U.S. 196 (1978).................... 23
Briscoe v. Bell,
432 U.S. 404 (1977)................. 12,13
Cano v. Chesser, No. A-79-CA-0032
(W.D. Tex. Mar. 2, 1979)......... ......3

Chapman v. Meier,
420 U.S. 1 (1975)... ....................7

City of Rome v. United States,
446 U.S. 156 (1980)..................15,23

Davis v. Coffee City, Texas,
356 F. Supp. 550 (E.D. Tex. 1972).......4
Perkins v. Mathews,
400 U.S. 379 (1971)...............13,20,22

Phillips v. Walling,
324 U.S. 490 (1975)........     13
United States v. Board of Commissioners 
of Sheffield, Ala.,
435 U.S. 110 (1978)........ 13,15,20,21,22

Page

Weaver v. Muckleroy,
Civ. No. 5524 (E.D. Tex. 1975) .15



-in-

Page

White v. Regester, 
412 U.S. 855 (1973)

Statutes

42 U.S.C. § 1973(c)............
Art. 1158, Texas Rev. Civ. Stats

Home Rule Charter of the City 
of Lockhart, Section 3.01......
Home Rule Charter of the City 
of Lockhart, Section 11.07.....

Other Authorities

S. Rep. No. 94-295 (1975),
2 U.S. Code Cong. & Admin-News,
94th Cong., 1st Sess..... 12,13,14,15,19

H.R. Rep. No. 94-196 (1975),
94th Cong., 1st Sess.........
Testimony of Asst. Atty. Gen. 
j. Stanley Pottinger at the 
Hearings of H.R. 939, et al,
94th Cong., 1st Sess.(1975).

passim 
___ 4

17,18

20



No. 81-802

IN THE SUPREME COURT OF 

THE UNITED STATES 
October Term,1981

CITY OF LOCKHART,
Appellant,

vs .
UNITED STATES OF AMERICA 

and

ALFRED CANO,
Appellees.

On Appeal From the United 
States District Court For 
The District of Columbia

APPELLEE'S MOTION TO AFFIRM

Appellee, Alfred Cano, pursuant to 
Rule 16(c) of the Rules of the Supreme 
Court, moves the Court to affirm the 
District Court's July 30, 1981 Order dis­
missing this case. In this declaratory 
judgment action, Appellant City of Lockhart



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sought approval of the election provisions 
of its Home Rule Charter pursuant to the 
Section 5 preclearance provisions of the 
Voting Rights Act, 42 U.S.C. § 1973(c).
The District Court denied preclearance for 
reasons set out in its Memorandum Opinion 
entered July 30, 1981. The District Court 
decision is based upon well established 
precedent and thus no substantial question 
on the merits has been raised in this 
appeal. Since there is no need for further 
argument, the judgment should be affirmed 
for the reasons set out in this motion.

STATEMENT OF THE CASE

The City of Lockhart initiated this 
action pursuant to Section 5 of the Voting 
Rights Act, 42 U.S.C. § 1973(c), on Febru­
ary 2, 1980.^ Lockhart sought a declara­
tory judgment that a 1973 Home Rule Char­
ter altering the City's form of government 
and election structure was not adopted 
pursuant to a discriminatory purpose and 
did not discriminate on the basis of race, 
color or membership in an applicable

^Prior to the commencement of this 
action, in proceedings initiated by private 
litigants, the United States District Court 
for the Western District of Texas determ­
ined that the adoption of the Home Rule



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language minority group. (R. Complaint

2for Declaratory Relief) In this action, 
the City has the affirmative duty of 
demonstrating the absence of discrimination 
in both purpose and effect. Beer v. United 
States, 425 U.S. 130, 140-141 (1976).

Prior to February 20, 1973, the City 
of Lockhart, as a Texas general law city, 
was governed by a commission form of gov­
ernment. (App. 4a) A general law city in

Charter was subject to the Section 5 pre­
clearance provisions of the Voting Rights 
Act and enjoined the City from utilizing 
the unprecleared election change. Cano v. 
Chesser, No. A-79-CA-0032 (W.D. Tex. Mar.
2, 1979). Contrary to Appellant's asser­
tion, the Court order in Cano did not pre­
clude the use of the prior governance in 
subsequent city elections. Following the 
Texas District Court's determination, the 
City of Lockhart submitted the Home Rule 
Charter to the Attorney General for Section 
5 review. The Attorney General interposed 
a letter of objection to the Home Rule 
Charter election provisions on September 
14, 1979.

2Citations m  the form of "R.____" are
to documents in the record, as specified.
Citations in the form of "App.___are to
the opinion of the three-judge District 
Court below, reprinted in the Appendix to 
the Jurisdictional Statement.



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Texas has the authority to govern itself 
only in the manner specifically authorized 
by Texas law, Davis v. Coffee City, Texas, 
356 F. Supp. 550, 554 (E.D. Tex. 1972).
The City of Lockhart thus had no control 
over the size of its governing board or 
the method of election of that board.
(App. 3a) Texas law requires that the 
commission consist of three members, a 
mayor and two commissioners. (Art. 1158 
Tex. Rev. Civ. Statutes) Moreover, state 
law does not authorize election features 
such as single member districts, numbered 
posts, residency districts, staggered 
terms, or majority vote requriements. (Id.)
Contrary to state law, however, until 
1973 the City of Lockhart had required 
candidates for election to the commission 
to designate the "post" to which the can­
didate sought election. (App. 4a)

The Home Rule Charter in 1973 expanded 
the authority of the governing body by 
providing for a council-manager form of 
government. The council consisted of a 
mayor and four council members. In adopting 
Home Rule status, the City of Lockhart had 
the opportunity to choose any of a number 
of election schemes, including "pure" at-large 
elections. (App. 4a) Instead, the new



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Cliarter' s election provisions called for 
at-large election to the council with a 
numbered post provision and staggered 
terms for councilmanic candidates, with elec­
tions for two council members in each year.

The District Court tried this case on 
the merits on September 10 and 11, 1980. 
After a day of trial, the District Court 
limited the evidentiary presentation to
the issue of discriminatory effect. (App.42a) To rebut the City's evidence, Appel­
lees introduced evidence concerning the 
discriminatory effect of the numbered place 
system and staggered terms in the context 
of the racially polarized voting patterns 
which are prevalent in Lockhart. This 
evidence is summarized below. 3 4

3Intervenor Cano was allowed to inter­
vene as a party defendant on May 7, 1980, 
and participated in the trial.

4As previously mentioned, p.2 supra, 
the City is under a duty to demonstrate 
the absence of both discriminatory purpose 
and effect with respect to the adoption and 
maintenance of the Home Rule Charter. A 
failure to meet either branch of this dual 
burden requires denial of the requested 
declaratory judgment. Consequently, in 
order to facilitate the consideration of 
this case and to save judicial resources, 
the Court bifurcated the trial and heard 
evidence only on the question of discrim­
inatory effect. (App. 2a)



-6

Although the population of Lockhart 
is well over half minority--including 
approximately 41% Mexican Americans and 
14% blacks (App. 3a)--minorities have his­
torically been excluded from Lcokhart1s 
governing body. No minority candidate had 
ever won election to the Board of Commis­
sioners before 1973 and the only one elec­
ted to the Council since the 1973 Charter 
change owed his success to an unusual frag­
mentation of the vote for Anglo candidates.

c:(App.7a) Trial testimony showed that 
Lockhart’s minority communities could not 
elect candidates of any race who would 
serve their minority interests, and that 
governing board members were therefore able 
to ignore minority needs, and did. (R. 
Rangel Deposition, pp. 9-11, 19, 21-22)

A strong pattern of racial bloc voting 
characterizes elections in the City of 
Lockhart. Lockhart does not deny the exis­
tence of polarized voting, and all members 
of the panel of the Court below found such 
a pattern. (App. 6a, 24a) Election returns 
from municipal elections since 1973 show 
a close correspondence between Spanish-

°Four different Anglo candidates opposed 
the lone Mexican American, Mr. Rangel, in 
the 1978 election. Although the four



-7

surnamed voters who voted in the particular 
election and the number of votes received 
by the Mexican American candidate, indi­
cating that Anglo voters do not vote for

6Mexican American candidates.
The Home Rule Charter adopted in 1973 

included two specific features in Lockhart's 
city elections which have the effect of 
diminishing minority voting strength: 
numbered posts and staggered terms. The 
discriminatory effect of both features 
results partly from their tendency to re­
duce or eliminate the successful use of 
"single shot" voting by minorities. As 
both the majority opinion and the dissent 
below noted, such voting constitutes an 
effective means for numerical and racial 
minorities to avoid their "submergence" 
which ordinarily accompanies at-large 
election schemes, Chapman v. Meier, 420 
U.S. 1, 16 and n. 10 (1975), especially 
in the context of racially polarized 
voting, White v. Regester, 412 U.S. 755, 
766-69 (1973). (App. 7a-8a, 25a and n.
29)

gathered twice as many votes as Rangel, no 
one of them outpolled him. (R. Def. Exh. 14)

In 1978, the three Hispanic candidates 
(one for Mayor and two for council



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The imposition of numbered posts 
reduced the field of candidates and at the 
same time highlighted the racial identity 
of individual candidates for each position. 
Given Lockhart's pattern of racially polar­
ized voting, this racial highlighting ex­
posed the minority candidates to racially 
biased bloc voting opposition. (R. Rangel 
Deposition, p. 22; Trial Transcript, pp. 
247-249) The imposition of a numbered 
place system also nullified the advantages 
of single-shot voting for minorities by 
reducing its impact. (R. Trial Transcript, 
p. 139) That impact will be much greater 
when the single minority beneficiary com­
petes against a larger number of Anglo 
candidates for a number of seats, rather
than a smaller number for a single numbered

7place. (R. Trial Transcript, pp, 138-40) 
All these factors were operative in Lock­
hart .

positions) received 655 votes, 642 votes, 
and 602 votes respectively, in an election 
in which 660 Hispanics voted (out of 1,993 
voters). (App. 7a, R. Def. Exh. 14) In 1973, 
417 Mexican American voters went to the 
polls; the two Mexican American candidates 
received 445 and 401 votes. (R. Def. Exh. 
14) In 1977, when 233 Mexican Americans 
voted, the Mexican American candidate for 
Place 3 received 251 votes. (Id.)

7Mr. Bernard Rangel's testimony indicates



-9-
The adoption of staggered terms also 

adversely affected minority voting strength 
in Lockhart. By limiting the number of 
seats open for election in a given year, 
staggered terms highlighted and increased 
the visibility of a particular race, and 
thus enhanced the likelihood of racial 
targeting against candidates. (R. Trial 
Transcript, p. 149) They also had the 
effect of creating lower voter turnout, 
which the evidence showed disproportion­
ately and adversely affected minority

8voters. (R. Trial Transcript, pp. 256-58)
The discriminatory effects of numbered 

places and staggered terms in Lockhart are 
seen in the electoral record since 1973. 
Seven Hispanics have run for the Commission 
since 1973; yet, only one Mexican American 
has been elected, in unusual circumstances 
involving a close four-way split of the * 8

that his race for City Council in 1973 
became a head-to-head contest with an 
Anglo candidate as a result of the place 
system. Moreover he testified that with a 
numbered post system "...the political sys­
tem is still going to throw you the best 
[opposition]..." and thereby target a min­
ority candidate. (Rangel Deposition, pp. 
21- 22)

8Voter turnout data for the 1974 and 
1977 elections, which were held subsequent 
to the adoption of the Home Rule Charter,



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Anglo vote. (See p. 6 , n. 5, supra) In­
deed, in that same election, two other 
Mexican American candidates lost because 
their advantages of single-shot voting 
support were insufficient to prevail against 
Anglo voting support that was divided among 
"only" three non-minority candidates. (App. 
7a, R. Def. Exh. 14)

After considering this evidence, the 
District Court found that Appellant had 
failed to show that the numbered post and 
staggered term provisions of the Home Rule 
Charter lacked discriminatory effect; on 
the contrary, it found that those features 
had a discriminatory effect on Lockhart's 
Mexican American voters. (App. 16a) Be­
cause in the view of the majority those 
features were changes in election laws sub­
ject to Section 5 preclearance, declaratory 
judgment was denied. (App. 16a-17a) The 
objection issued earlier by the Attorney 
General therefore remains in effect, blocking 
further use of those features of the election
show that low voter turnout adversely af­
fects Mexican American candidates. In 1977, 
24% of Mexican Americans and 36% of other 
registered voters cast ballots. But in 
1975, when only 176 ballots were cast in 
uncontested City elections, only 10 or 
5.7% were cast by Mexican American voters. 
(See R. Def. Exh. 14)



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. 9system.

ARGUMENT

I. LOCKHART FAILED TO CARRY 
ITS BURDEN TO PRECLEAR 
ELECTION CHANGES COVERED 
BY SECTION 5.

The decision below correctly held 
that both the numbered post system and 
the staggered terms introduced by the 1973 
Home Rule Charter were changes in election 
practices subject to Section 5 preclear­
ance. It further agreed with the Attorney 
General's earlier determination that those 
changes had a discriminatory effect on 
minorities and therefore could not be pre 
cleared. These rulings were plainly 
correct, and present no substantial issues 
for review.

A. The Numbered Post System And 
The Staggered Terms Provision 
Were Changes Subject To Sec­
tion 5 Preclearance.

At the threshhold, Lockhart argues that 
the numbered post provision was not subject 
to preclearance under Section 5 of the

^The Attorney General's letter of ob 
jection does not purport to suspend the 
operation of the City's entire Home Rule 
Charter, cf. Appellant's Jurisdictional 
Statement, pp. 14-15, but only the 
offensive election changes. (R. Def. Ex 
12, p. 2)



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Voting Rights Act, 42 U.S.C. § 1973c. 
(Lockhart does not contest the applicabil­
ity of Section 5 to the staggered terms 
provision.) The Court below correctly 
held that both features of the Charter 
were election law changes requiring sub­
mission and preclearance.

1. Under Section 5, a covered polit­
ical subdivision in Texas must submit to 
the United States Attorney General or to 
the United States District Court for the 
District of Columbia all changes in elec­
tion laws or practices since November 1, 
1972, and must obtain a determination that 
such election changes were not adopted pur­
suant to a discriminatory purpose and do 
not discriminate on the basis of race, 
color or membership in an applicable lang­
uage minority group. Briscoe v. Bell,
432 U.S. 404 (1977) .

Congress crafted Section 5 to provide 
a comprehensive framework for federal scru­
tiny of election practices in covered juris­
dictions which might have the purpose or 
effect of discriminating against minority 
voters. In extending Section 5, Congress saw 
it as "the front line of defense against 
voting discrimination," S. Rep. No. 94-295 
(1975), 2 U.S. Code Cong. & Admin. News,



-13-

94th Cong., 1st Sess., 774, 784 (1975).
At the same time, Congress took specific 
and approving note of the broad reading 
given Section 5 by the Supreme Court in 
Allen v. Board of Elections, 393 U.S. 544, 
566 (1969), which held that section should 
be given the "broadest possible scope," 
and in Perkins v. Mathews, 400 U.S. 379,
387 (1971), which reiterates Allen1s hold­
ing that all changes, no matter how minor, 
are covered by the preclearance require­
ment. See, S. Rep. 94-295, supra, p. 782; 
H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 
(1975), p. 9.10 Legislation which embodies 
a powerful remedial intent, so clearly ex­
pressed and reconfirmed by Congress, should 
not be hamstrung by narrowing technical 
constructions. See, Briscoe v. Bell, 
supra, 432 U.S. at 410; United States v. 
Board of Commissioners of Sheffield, 435 
U.S. 110, 124 (1978); Phillips v. Walling, 
324 U.S. 490, 492 (1975).

Congress specifically intended Section 
5 to stand as a safeguard against discrim­
inatory use of at-large elections, numbered 
post systems, and staggered terms the

1-0 This Court reasserted its steadfast 
view of Section 5's comprehensive scope 
in United States v. Board of Commissioners 
of Sheffield, Ala, 435 U.S. 110, 122 (1978).



-14-

essential elements of the election system
embodied in Lockhart's 1973 Home Rule
Charter. Congress extended Section 5 to
cover Texas in large part because

[t]he at-large structure, with 
accompanying variations of the 
majority run-off, numbered 
place system, is used exten­
sively among the 40 largest 
cities in Texas .... These 
structures effectively deny 
Mexican American and black 
voters in Texas political 
access ....When numbered posts 
are combined with a majority 
vote requirement, the change 
for a minority candidate be­
comes practically impossible 
unless minorities are in a 
voting majority.

S. Rep. No. 94-295, supra, p. 794 and n. 
17; H.R. Rep. No. 94-196, supra, p. 19 and 
n. 21. In documenting the need for Section 
5's extension to Texas, both House and 
Senate Committees reported with concern on 
local Texas jurisdictions' discriminatory 
use of staggered terms and numbered place 
systems, S. Rep. No. 94-295, supra, pp.
783, 794; H.R. Rep. No. 94-196, supra, pp. 
10, 18-19. Both Committee reports cite 
with approval a federal court decision 
nullifying as discriminatory, on constitu­
tional grounds, a 1972 City Charter con­
version by the City of Nagodoches from an



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at-large commission form of government to 
a numbered place system,10 while noting that 
Section 5 is needed to replace just such 
time-consuming and expensive constitutional 
litigation. See S. Rep. No. 94-295, supra, 
pp. 793, 777-78; H.R. Rep. No. 94-196, supra, 
pp. 19, 4-5. In short, it is clear that 
Congress extended Section 5 to cover Texas 
for the express purpose of subjecting to 
federal scrutiny systems like that adopted 
by Lockhart in 1973.

2. This Court has firmly established 
that Section 5 requires scrutiny of election 
changes which substitute home rule govern­
ment for general law government, United 
States v. Board of Commissioners of Sheffield, 
supra, and of changes to numbered posts and 
staggered terms in a jurisdiction which uses 
at-large elections characterized by racial 
bloc voting, City of Rome v. United States, 
446 U.S. 156, 183 (1980).11 See also, White 
v . Regester, 412 U.S. 855, 766 (1973) (finding 
of constitutional violation in Texas at-large 
system based in part on the use of numbered posts).

10Weaver v. Muckleroy, Civ. No. 5524 
(E.D. Tex. 1975)

llrThe Court in Rcme attributed much of the dis­
criminatory effect of these election practices to 
their undermining of single-shot voting by minorities. 
446 U.S. at 184 and n. 19.



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Appellant seeks to evade these holdings by 
arguing that there was no post-1972 "change" 
to trigger Section 5 review, relying on 
Beer v. United States, 425 U.S. 130, 138-39 
(1976) .

Appellant argues that preclearance was
unnecessary for the numbered place system
because Lockhart utilized a numbered place

12system prior to November 1, 1972 in a
different form and as part of a different
election system for a different number of
positions. Appellant also asserts that the
illegality of its use of a numbered place
system prior to the adoption of the Home 

13Rule Charter is irrelevant to the issue 
of Section 5 coverage. (Jurisdictional 
Statement, pp. 9-10)

In Beer v. United States, supra, this 
Court held Section 5 inapplicable to an 
election system, in existence since 1956, 
which continued in effect without change

12In Texas, those laws affecting voting 
which were enacted prior to November 1, 1972 
are exempt from Section 5 preclearance.
42 U.S.C. § 1973(c), Beer v. United States, 
supra.

13The District Court majority found that 
Lockhart's use of numbered places before 
1973 was illegal under Texas law, App. 11a- 
13a, and Appellant has not challenged that 
finding here.



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or re-adoption after Section 5 became 
applicable. The ordinance under scrutiny 
in Beer was a post-census redistricting for 
the City of New Orleans which changed the 
boundaries of five single member districts 
but did not alter, or even refer to, the 
City's two at-large districts. This Court 
concluded that the at-large districts, al­
though potentially discriminatory, were 
beyond Section 5's reach because they had 
"existed without change since 1954," 425 
U.S. at 139.

Appellant's reliance on the Beer hold­
ing is misplaced. Lockhart's enactment of 
a new Charter in 1973 providing for a num­
bered post system constituted a "change" 
which triggers Section 5 coverage. Prior 
to 1973, Lockhart's use of numbered posts 
was ultra vires and therefore, under Texas 
law, void. (App. 12a-13a) With the adop­
tion of the Home Rule Charter, the City 
affirmatively adopted a lawful numbered 
place system for the first time. See, 1973 
Home Rule Charter, Section 3.01. (R. Def.
Exh. 7) The legalization of the numbered 
post feature was a significant change. The 
adoption of a Home Rule Charter, valid under 
State law, which included the numbered post 
system, foreclosed to the minority commun­



-18-

ity of Lockhart a state-law challenge to 
that discriminatory election feature, which 
would otherwise be available. In contrast, 
New Orleans' redistricting ordinance did 
not mention the at-large districts; and 
indeed, not an ordinance but a referendum 
would have been required to change the New 
Orleans City Charter.^ Moreover, in New 
Orleans, the redistricting did not change 
the governing structure, of which the at- 
large seats were a part, in any way. How­
ever, Lockhart's Home Rule Charter fundamen­
tally changed the form of government in 
which the numbered place system operated.
It increased the number of such places from 
two to four and changed the places from 
Commissioners' seats in a commission form 
of governance to council members' positions 
in a mayor-council-manager form of govern­
ment .

3. The numbered place system incorporated 
in Section 3.01 of the Charter is covered 
even if it did not, standing by itself, 
change the actual (although unauthorized) 
prior practice. The numbered place system

14Lockhart could have chosen a number of 
other election systems (e.g., by-district, 
pure at-large, etc.) for its Home Rule 
Charter, but chose in 1973 to utilize num­
bered places. New Orleans' ordinance did 
and could not modify the form of elections.



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was a part of a larger election and gov­
ernance system which was comprehensively 
changed. Congress specifically intended 
that such overall changes in governance 
would trigger scrutiny of specific aspects 
of the governance system. As the 1975 
Senate Committee Report noted,

In some Section 5 cases, a change 
in the voting practice or pro­
cedure may also retain some features 
of the previous system, and all 
aspects of such a change are 
within the reach of Section 5.

S. Rep. No. 94-295, supra, p. 19 (emphasis 
15supplied). Such an application of Section 

5 is consistent with the procedures adopted 
by the Attorney General in his administra­
tion of Section 5. Department of Justice 
officials, in testifying before Congress in 
connection with the 1975 extension of Sec­
tion 5, introduced an exhibit which indi­
cates a policy of objection to changes in 
governance where specific features in the

15The Report cites with approval the 
District Court decision, 374 F. Supp. 363 
(D. D.C. 1974), reversed in Beer, supra.
This Court's reversal does not undercut the 
importance of the quoted passage. The error 
below in Beer was that there was no change 
in any "voting practice or procedure"; the 
Senate Committee's citation was therefore 
inapposite to its clear purpose as stated 
in the text.



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change were objectionable. See testimony 
of Assistant Attorney General J. Stanley 
Pottinger at the Hearings of H.R. 939, et 
al., before the Subcommittee on Constitu­
tional Rights, House Committee on the Ju­
diciary, 94th Congress, 1st Sess., 166 
(1975). Although the Attorney General's 
application of Section 5 is not binding on 
this Court, the Court has given great def­
erence to the interpetation of Section 5 
made by the Attorney General, Perkins v. 
Matthews, supra, 400 U.S. at 390-394, par­
ticularly where Congress has manifested its 
approval of the Attorney General's inter­
pretation, United States v. Board of 
Commissioners of Sheffield, supra, 435 U.S. 
at 131-32. The Attorney General's letter 
of objection to the numbered place pro­
vision of the Lockhart City Charter was
fully consistent with an administrative

* 1 7policy approved by Congress.

^Exhibit 5 indicates several instances 
of Section 5 coverage and objections to 
the change in form of government as well 
as to specific features of the election 
change, i.e., Conyers City, Ga.; Lancaster 
County, South Carolina; and Charleston Co., 
South Carolina.

17In his letter of objection of Sep­
tember 14, 1979 (R. Def. Exh. 12), the 
Attorney General clearly based Section 5



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This Court's decision in United States 
v. Board of Commissioners of Sheffield, 
Ala.., supra, supports the District Court's 
analysis. In Sheffield, the City of 
Sheffield, by referendum held in 1975, al­
tered its form of government from a com­
mission form of government in which three 
commissioners were elected at-large, to a 
mayor-council form of government in which 
eight aldermen were to be elected at-large, 
by numbered posts. 435 U.S. at 114-15.
The Attorney General then objected that

while he did not interpose any 
objection to the change to a 
mayor-council form of govern­
ment... to the proposed district 
lines or to the at-large elec­
tion of the mayor and the presi­
dent of the council, he did ob­
ject to the implementation of 
the proposed at-large method of 
electing city councilmen because 
he was unable to conclude that the 
at-large election of councilmen 
required to reside in districts 
will not have a racially discrim­
inatory effect.

Id., 435 U.S. at 116. The Supreme Court 
sustained the Attorney General's objection. 
The similarities in the facts of the pres­
ent case and those in Sheffield are quite
coverage on the fact that in adopting the 
Charter, Lockhart had altered its form of 
government and voluntarily adopted the 
entire election scheme in the Charter.



-22-

striking. In both instances the Attorney 
General and the District Court found ob­
jectionable a change in governance which 
included an election feature in use both 
before and after the change in the form 
of governance— in Sheffield, the at-large 
system, and in Lockhart the numbered post 
system. Thus the District Court was correct 
in simply adhering to a well-established 
application of Section 5 in reviewing the 
election features of a change in govern­
ance .

4. Appellant contends that this 
Court's decision in Perkins v. Matthews, 
supra, makes the illegality of Lockhart's 
pre-1973 use of numbered places irrelevant. 
In -Perkins the Court examined an at-large 
system which was required by state law 
prior to the effective date of Section 5, 
but only implemented after that date. The 
Court, looking to the practice actually "in 
force or effect" prior to Section 5, held 
that implementation of the state law was a 
change covered by Section 5, 400 U.S. at
395. In so doing, the Court served Cong­
ress' purpose to assure broad Section 5 
coverage of discriminatory election prac­
tices. It should not now turn Perkins on
its head to circumvent that same purpose,



and need not do so, since as demonstrated 
above Lockhart did adopt election changes 
in 1973.

Under Section 5, failure to secure 
preclearance simply leaves a covered change 
unenforceable, 42 U.S.C. § 1973(c), Berry 
v . pole, 438 U.S. 196 (1978). The sub­
mitting jurisdiction must, in the absence 
of preclearance, revert back to the former 
election scheme. City of Rome v. United 
States, supra, 446 U.S. at 182. The proper 
test of whether there has been a change 
affecting voting is whether, upon such 
reversion, the election scheme of the pol­
itical subdivision would differ from that 
submitted for preclearance. In the instant 
case, Lockhart could not lawfully revert to 
use of a numbered post system in the absence 
of preclearance of Section 3.01 of its Home 
Rule Charter, since state law, absent a 
valid Home Rule Charter, does not authorize 
use of such a system. Absent preclearance, 
Lockhart's would be a pure at-large system, 
without posts. See pp. 4, 17, supra. There­
fore the Home Rule Charter provision for 
numbered posts did change Lockhart's elec­
tion practices.

-23-



-24-

B . Both The Numbered Post System 
And The Staggered Terms Pro­
visions Have Discriminatory 
Effect On Mexican American 
Voters.

The District Court correctly found 
that both the numbered post system and 
the staggered terms provision "had and 
will continue to have" a discriminatory 
effect on Mexican American voters, in that 
it diminishes their ability to elect can­
didates of their choice. (App. 16a) 
Appellant does not contest the Court's 
finding as to staggered terms. Lockhart 
concedes that staggered terms may have a 
discriminatory effect, but argues that 
such effect is hypothetical in its case 
(Jurisdictional Statement, pp. 12-15).
Apart from the point that this local fac­
tual issue presents no substantial question 
warranting exercise of this Court's juris­
diction, Lockhart's position is unfounded; 
the Court's finding is amply supported in 
the record.

The testimony of the Appellant's 
expert witness, Dr. Dalbert Taeble, reveals 
that the effect of staggered terms is 
generally to decrease voter turnout. (R. 
Trial Transcript, pp. 83-84) According to 
Dr. Fred Cervantes, Appellee's studies of



-25-

voter turnout show that low voter turnout 
has a disproportionate effect on minority 
voters. When turnout is low, generally, 
turnout among minority voters is even 
lower. (See p. 9 and n. 8 , supra.) Voter 
turnout data made available by the City of 
Lockhart demonstrates that low voter turn­
out disproportionately affects minorities.

1 R(R. Def. Exh. 14)
Staggered terms also have an adverse 

effect on the voting strength of minor­
ities by facilitating the targeting of 
minority candidates. Testimony at trial 
revealed that staggered terms operate in 
the same discriminatory fashion as a num­
bered post provision in the context of 
racially polarized voting. (R. Trial 
Transcript, pp. 81,83,148,149) In Lock­
hart staggered terms have in fact had the
effect of exacerbating racial tactics used

19against minority candidates. (Id. p. 245)

18See pp. 9-10, n. 8, supra.
1 9During the 1978 race an advertisement 

ran in the local paper which purported to 
link the three Mexican American candidates 
to the controversial Chicano political 
party, Raza Unida Party. (R. Def. Exh. 15) 
Mr. Bernard Rangel, in his deposition, 
testified that such a tactic was meant to 
arouse the white Anglo vote against the



-26-

The staggered terms provision did, 
therefore, bring about a "retrogression" 
in the political strength of Mexican 
American voters, as required by Beer v. 
United States, supra, 425 U.S. at 141.
The retrogression is caused in at least 
two ways. First, the staggered terms are 
an integral part of a larger election 
change which, in the aggregate, signifi­
cantly diluted minority voting strength, 
see p. 19 , supra. Second, the addition 
of two elections in odd-numbered years 
adversely affects minority voting in 
previously-scheduled, even-year elections, 
by creating more numerous and frequent 
elections, which exacerbates the phenomenon 
of low minority voter turnout. The mini­
mal positive effect of the expanded number 
of seats does not offset this additional 
obstacle to minority voters' strength.
(R. Trial Transcript,pp. 169-170) Appellant 
had the burden of demonstrating that the 
addition of staggered terms would not be 
retrogressive. Both the Attorney General 
and the District Court were properly un­
persuaded.

three Mexican American candidates. (R. Def. 
Exh. 15, Rangel Dep. pp. 25-26) The re­
sulting turnout was in fact the greatest of 
any post-Charter election (Def. Exh. 14), 
and all three candidates were defeated.



-27-
II. THE DISTRICT COURT'S DENIAL 

OF PRECLEARANCE DID NOT 
INTERFERE WITH LOCKHART'S 
USE OF OTHER VALID PROVISIONS 
OF THE HOME RULE CHARTER.

Appellant also challenges as excessive 
the scope of the District Court's order 
denying declaratory judgment. Appellant 
apparently suggests that the District Court 
has invalidated its entire Home Rule Charter 
(Jurisdictional Statement, pp. 14-15).
That suggestion is misleading. While it is 
true that adoption of the Home Rule Charter 
triggered Section 5 review, the District 
Court limited its review to the effect of 
the numbered post and staggered terms pro- 
visons. (R. Trial Transcript, pp. 183- 198) 
The District Court clearly indicated that 
other elements of the Charter were simply 
not before the Court for Section 5 review.
(R. Trial Transcript, p. 199) Neither the 
trial on the merits nor the District Court's 
order addressed the discriminatory effect 
of any provision of the Charter, other than 
the two discussed at length above. While 
Appellant may have construed its suit as a 
request for a declaration that all aspects 
of the Charter were enforceable, denial of 
that judgment does not mean that all aspects 
were struck down. In sum, the District



-28-

Court's order cannot be read to invalidate 
the entire Home Rule Charter.

This conclusion is further supported 
by the fact that the Attorney General in 
his review of the submission of the Charter 
objected only to the specific election 
features and not to the entire Charter.
(Def. Exh. 12, p. 2) Moreover, in response 
to a prior submission by the City of Lock­
hart of changes in the Charter which in­
corporated a majority vote provision along 
with a bilingual election provision, the 
Attorney General objected to the majority 
vote provision while approving the bilingual 
elections. (R. Def. Exh. 10, p. 2) Thus 
the prior actions of the Attorney General 
support the conclusion that both Appellant 
and the United States have conducted their 
business under Section 5 with the awareness 
that Section 5 submissions are ordinarily 
limited to election provisions, each of 
which is to be assessed separately.

Finally, the Charter itself provides 
for the separate review of its provisions. 
Section 11.07 of the City of Lockhart Home 
Rule Charter reads as follows:

If any section or part of section 
of this charter shall be held 
invalid by a court of competent 
jurisdiction, such holding shall



-29-
not effect the remainder of 
this charter.

(R. Def. Exh. 7, p. 31)
Thus, the invalidation of the dis­

criminatory election features incorporated 
in the Charter do not, by its own terms, 
affect the remainder of the Charter.

In view of the foregoing, the change 
to a council-manager form of government 
and the increase in the size of the gov­
erning board as well as other provisions 
of the Charter remain in effect. Only the 
numbered places and staggered terms are 
barred. This limited prohibition does not 
intrude inappropriately into the local 
management of political affairs beyond the 
scope of federal review.

Conclusion
The District Court correctly applied 

well-settled Section 5 principles in re­
viewing the numbered post and staggered 
terms provisions of the Lockhart Home Rule 
Charter. Neither the District Court's 
Order denying declaratory judgment nor 
Appellant's arguments raise any substantial 
issues of general importance. Plenary 
consideration is therefore unnecessary.



-30-

The District Court's order denying 
declaratory judgment should be affirmed. 
DATED: December 30, 1981.

Respectfully submitted,

VILMA S. MARTINEZ 
MORRIS J. BALLER 
Mexican American Legal 
Defense and Ed. Fund 
San Francisco, Calif.

JOAQUIN G. AVILA 
JOSE GARZA 
NORMA V. SOLIS 
Mexican American Legal 
Defense and Ed. Fund 
San Antonio, Texas

WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN 
Lawyers' Committee for 
Civil Rights Under Law, 
Washington, D.C.

JOSE CAMACHO
Texas Rural Legal Aid, Inc. 
San Antonio, Texas

Of Counsel:

ROLANDO L. RIOS 
RAUL NORIEGA