Letter from Warren Rowe to Judge Thompson RE: Settlement Negotiations

    J&tprott? ( to r t af %  MxuUh States
October Term , 1977

In The

No. 77-529

W es W ise, et al.,
Petitioners,v.

A lbert L. L ipscomb, et al.

On Writ of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE 
AND

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

Charles A. Bane 
T homas D. Barr 

Co-Chairmen 
A rmand  Dbrfner 
N orman Redlich 

Trustees
F rank  R. Parker 
T homas J. Ginger 

Staff Attorneys 
Lawyers’ Committee for 

Civil Rights Under Law  
720 Milner Building 
210 S. Lamar Street 
Jackson, Mississippi 39201 
(601) 948-5400 

Robert A. Murphy 
N orman J. Chachkin  
W illiam E. Caldwell 

Staff Attorneys 
Lawyers ' Committee for 

Civil Rights Undfr Law  
733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Amicus Curiae

W il so n  - Epes Print in g  C o . .  In c . - Re 7 - 6 0 0 2  - W a s h i n g t o n . D .C .  2 0 0 0 1



i>u|TX*i>uu> (Einirl itf lift' Inttrii BtnUx
October Term, 1977

In The

No. 77-529

Wes W ise, et al., 

v. Petitioners,

Albert L. Lipscomb, et al.

On Writ of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law, 
proposed amicus curiae herein, respectfully seeks leave 
of this Court to file the attached brief in order to assist 
the Court in resolving the remedial questions presented 
in this voting rights case.

As set forth in the attached brief, the Lawyers’ Com­
mittee has been intimately involved for a number of years 
in voting rights litigation on behalf of minority-race 
voters, and we have participated, both as amicus curiae 
and as the representative of parties, in many of this 
Court’s important voting rights cases. The instant case 
is of particular concern to us, as it will have a bearing 
on the appropriate remedies to be applied in many of our 
cases which, like this case, involve the effect of at-large 
voting schemes on the participation o f minority voters in 
the electoral process. We believe that we bring to this



case a fam iliarity with, and understanding of, the appli­
cable decisions of this Court. We also bring to this case 
considerable experience with the practical implementation 
of those decisions, which may not be presented by the 
parties. In addition, the attached brief presents an alter­
native argument in support of the judgment below, based 
upon established principles o f equitable remedies, which 
we do not believe will be presented by any party.

Both sets of respondents have consented to the filing 
o f this brief, but petitioners have refused consent.

W H EREFORE, the Lawyers’ Committee for Civil 
Rights Under Law respectfully moves that its brief amicus 
curiae be filed in this case.

March 28, 1978
Respectfully submitted,

Charles A. Bane 
Thomas D. Barr 

Co-Chairmen 
A rmand  Derfner 
Norman Rkdlich 

Trustees
Frank  R. Parker 
T homas J. Ginger 

Staff Attorneys 
Lawyers ’ Committee for 

Civil Rights Under Law 
720 Milner Building- 
210 S. Lamar Street 
Jackson, Mississippi 39201 
(601) 948-5400 

Robert A. Murphy 
Norman J. Chachkin  
W illiam E. Caldwell 

Staff Attorneys 
Lawyers’ Committee for 

Civil Rights Under Law 
733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Amicus Curiae



TABLE OF CONTENTS
Page

Table of Authorities------ -----............-...........—................ - 11
Interest of Am icus Curiae...... ........-.......— .........-......—  1
Statement of the Case----------------- ----------- ----- ----------- 4
Summary of Argument--------- ----------------------------------  9

Argument .... ........— ........................................... ................ 12
I. On The Facts Of This Case, At-Large Municipal

Elections For Members Of The Dallas City 
Council Are Unconstitutional For Dilution Of 
Black Voting Strength---- ---------- --------------------  12

II. The Fifth Circuit Correctly Held That The
Remedy Ordered By The District Court Failed 
To Meet The Requirements Applicable To Court- 
Order Redistricting Plans -- ------- -------------------  16
A. The eight/three plan ordered into effect by

the District Court was a court-ordered plan.. 16
B. There is no distinction between “ court-

ordered” plans and “ court-approved” plans 
applicable here that would permit the city’s 
eight/three plan to avoid the principles gov­
erning court-ordered plans------------------------ 20

C. Neither the impact of the Mexican-American
vote nor the city’s interest in citywide rep­
resentation justify a departure, in this court- 
ordered redistricting plan, from the prefer­
ence for single-member districts----------------- 23
1. The Mexican-American vo te ----------------- 26
2. The citywide viewpoint-------- ----- --------- 28

III. Alternatively, The Mixed Eight/Three Plan Or­
dered Into Effect By The District Court— By 
Retaining Three At-Large Seats— Is Constitu­
tionally Inadequate As A Remedy For Unconsti­
tutional At-Large Elections --------- ---- -------------  32

Conclusion ......... ............................................... ...................  34



II

TABLE OF AUTHORITIES
Cases: Page

Albermarle Paper Co. V. Moody, 422 U.S. 405
(1975) ________________     32

Allen V. State Board of Elections, 393 U.S. 544
(1969) --------------        12,17,22

Blacks United for Lasting Leadership, Inc. V. City 
of Shreveport, La., 71 F.R.D. 623 (W.D. La,
1976) , appeal pending, No. 76-3619 (5th Cir.)__ 16

Bolden V. City of Mobile, 423 F. Supp. 384 (S.D.
Ala. 1976), appeal pending, No. 76-4210 (5th
Cir.) -------------------------------------------------------------  16

Briscoe V. Bell, 432 U.S. 404 (1977) ______________  17
Burns V. Richardson, 384 U.S. 73 (1966)________ 12, 30
Chapman V. Meier, 421 U.S. 1 (1975)_________ 23, 24, 30
Connor V. Finch, 431 U.S. 407 (1976) ....22, 24, 25, 28, 29 
Connor v. Johnson, 402 U.S. 690 (1971), on re­

mand, 330 F. Supp. 521 (S.D. Miss. 1971), fur­
ther relief denied, 402 U.S. 928 (1971) ......9, 22, 24, 25

Connor v. Waller, 421 U.S. 656 (1975)____ ______  17, 20
Connor v. Waller, 396 F. Supp. 1308 (S.D. Miss.

1975), rev’d, 421 U.S. 656 (1975)_____________  21
Connor v. Williams, 404 U.S. 549 (1972)________  18
Dallas County v. Reese, 421 U.S. 477 (1975)_____ 12
East Carroll Parish School Board V. Marshall, 424

U.S. 636 (1976)---------- ----- .......18,19, 20, 21, 23, 24, 27
Fairley V. Patterson, 393 U.S. 544 (1969) _______  12
Fortson V. Dorsey, 379 U.S. 433 (1965) _____ ____  12
Graves V. Barnes, 343 F. Supp. 704 (W. D. Tex.

1972), aff’d in part, rev’d in part sub nom.
White V. Regester, 412 U.S. 755 (1973)_______  13

Kirksey V. Board of Supervisors of Hinds County,
554 F.2d 139 (5th Cir. 1977) (en banc), cert, 
denied, ------  U.S. ——  (No. 77-499, Nov. 28,
1977) ---------------- ------------------------------------------- 20n, 33

Lipscomb v. Jonsson, 459 F.2d 335 (5th Cir.
1972) _______ ______________________ __ ______  4

Louisiana V. United States, 380 U.S. 145 (1965) _. 33
Mahan V. Howell, 410 U.S. 315 (1973)__________  25,27



n t

TABLE OF AUTHORITIES— Continued
Page

Paige V. Gray, 399 F. Supp. 459 (M.D. Ga. 1975), 
vac’d and remanded, 538 F.2d 1108 (5th Cir.
1976) , on remand, 437 F. Supp. 137 (M.D. Ga.
1977) _______________ _________________________  16

Parnell V. Rapides Parish School Bd., 563 F.2d
180 (5th Cir. 1977)______________ ________ _ 15, 28

Perkins v. Matthews, 400 U.S. 379 (1971) ......... 17
Perry v. City of Opelousas, 515 F.2d 639 (5th Cir.

1975) _________________________________ ______  15
Reynolds V. Sims, 377 U.S. 533 (1964) ___________ 10, 30
Stewart V. Waller, 404 F. Snpp. 206 (N.D. Miss.

1975) _________    13n
Turner v. McKeithen, 490 F.2d 191 (5th Cir.

1973) ________________________________________ 16
United States V. Board of Comm’rs of Sheffield,

Ala., No. 76-1662 (decided March 6, 1978) _____  17
Wallace V. House, 425 U.S. 947 (1976)........18,19, 21, 24
Wallace V. House, 515 F.2d 619 (5th Cir. 1975), 

vac’d and remanded, 425 U.S. 947 (1976), on 
remand, 538 F.2d 1138 (5th Cir. 1976), cert.
denied, 431 U.S. 965 (1977) _______ 15,19, 28-29, 29-32

Whitcomb V. Chavis, 403 U.S. 124 (1971)_______  12
White V. Regester, 412 U.S. 755 (1973)_______ 9,12, 13,

14,15, 27
Wise V. Lipscomb, No. A-149 (August 30, 1977) .. 9,20 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.

1973) (en banc), aff’d on other grounds sub nom.
East Carroll Parish School Board V. Marshall,
424 U.S. 636 (1976)____ ____________ 15-16, 18,19, 27

Statutes:

§ 5 of the Voting Rights Act of 1965, 42 U.S.C.
§ 1973c (Supp. V 1975)___________________ __ 2, 7,17

Other Authorities:

Banzhaf, Multi-Member Electoral Districts—Do 
They Violate the “ One Man, One Vote”  Princi­
ple?, 75 Y ale L.J. 1309 (1966)_______________  13n



IV

Page
Bonapfel, Minority Challenges to At-Large Elec­

tions: The Dilution Problem, 10 Ga. L. Rev. 353 
(1976) __ ._____________ __ ____ ______ _________ 16

Comment, Section 5: Growth or Demise of Statu­
tory Voting Rights?, 48 Miss. L.J. 818 (1977)....

Carpeneti, Legislative Apportionment: Multi-
Member Districts and Fair Representation, 120

TABLE OF AUTHORITIES— Continued

U.Pa.L. Rev. 666 (1972)____________________ _ 13n
Sloane, “ Good Government” wnd the Politics of

Race, 17 Social Problems 156 (1969)_________  13n
United States Commission on Civil Rights,

Political Participation (1968)______________  13n
W ashington Research Project, The Shameful 

Blight: The Survival of Racial Discrimina­
tion in Voting in the South (1972) ________  13n



In The

B u p m m  (£ m tr t  v t  t t y  H tt ftr ii
October Term, 1977

No. 77-529

Wes W ise, et a l .

v.
Petitioners,

Albert L. Lipscomb, et al.

On Writ of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President of 
the United States to involve private attorneys throughout 
the country in the national effort to assure civil rights to 
all Americans. The Committee’s membership today in­
cludes two former Attorneys General, ten past Presidents 
of the American Bar Association, two former Solicitors 
General, a number of law school deans, and many of the



2

Nation’s leading lawyers. Through its national office in 
Washington, D.C., and offices in Jackson, Mississippi, and 
eight other cities, the Lawyers’ Committee over the past 
fifteen years has enlisted the services of over a thousand 
members of the private bar in addressing the legal prob­
lems of minorities and the poor in voting, employment, 
education, housing, municipal services, the administration 
of justice, and law enforcement.

In the past, the Lawyers’ Committee has filed briefs 
amicus curiae by consent of the parties or by leave of 
this Court in a number of important civil rights cases. 
The interest of the Lawyers’ Committee in this case 
arises from its dedication to and interest in the full and 
effective enforcement and administration of the Nation’s 
constitutional and statutory provisions securing the voting 
rights of minorities. As a result of providing legal repre­
sentation to litigants in voting rights cases for the past 
thirteen years, the Committee has gained considerable 
experience and expertise in problems of racial discrimi­
nation relating to the voting rights of minority citizens, 
and in the requirements and guarantees of the Fourteenth 
and Fifteenth Amendments and the Voting Rights Act 
of 1965. Attorneys associated with the Lawyers’ Com­
mittee represented the minority plaintiffs in two of the 
first four cases to reach this Court on the scope of the 
requirements of § 5 of the Voting Rights Act of 1965, 
Fairley v. Patterson and Bunion v. Patterson, decided 
sub nom. Allen v. State Board of Elections, 393 U.S. 544 
(1969), and have provided continuing representation since 
1970 to the plaintiff voters in the Mississippi state legis­
lative reapportionment case, in which this Court has ren­
dered five decisions in this decade, the latest of which 
was Connor v. Finch, 431 U.S. 407 (1977). The Commit­
tee also represented the minority voters in City of Rich­
mond v. United States, 422 U.S. 358 (1975); and, we 
filed amicus briefs in East Carroll Parish School Bd. v.



3

Marshall, 424 U.S. 636 (1976), and Georgia v. United 
States, 411 U.S. 526 (1973).

In this case the Committee is interested in (1) the 
continued viability of the principles announced by this 
Court in White v. Regester, 412 U.S. 755 (1973), that 
at-large elections unconstitutionally dilute minority voting- 
strength when maintained after an extensive past history 
of racial discrimination affecting the voting process and 
when at-large voting denies to minorities equal access to 
the election process; (2) the proper scope and interpreta­
tion of the principle first announced in a Lawyers’ Com­
mittee case, Connor v. Johnson, 402 U.S. 690 (1971), 
that in District Court-ordered reapportionment plans 
single-member districts are preferred absent unusual cir­
cumstances; and (3) the proper remedies in a case in 
which at-large voting has been held unconstitutional for 
dilution of minority voting strength. In addition, attor­
neys associated with the Jackson, Mississippi office of the 
Lawyers’ Committee currently have pending eight cases 
challenging at-large municipal elections and voting dis­
tricts for city council members, and the decision of the 
Court in this case on the scope of a proper remedy is 
likely to have a direct impact on the decisions in those 
cases.

Because of our extensive and intimate involvement in 
voting rights cases involving state legislatures, counties, 
and municipalities, and our extensive knowledge of the 
case law in the area, we believe that we can present a 
perspective on this case which has not been presented by 
the petitioners, and which may not be presented by the 
respondents. First, we wish to direct the attention of the 
Court to, and state our understanding of, the specific 
cases in which the Court has defined what constitutes a 
“ court-ordered” redistricting plan. Second, wTe desire to 
show that this Court has indicated that any exceptions to 
the general principle favoring single-member districts in



4

court-ordered plans must be narrowly construed, and are 
applicable only in instances in which single-member dis­
tricts threaten the enjoyment of secured constitutional 
rights or in which there are insurmountable difficulties 
to the creation of single-member districts. Third, and 
we do not believe that this contention will be advanced 
by the petitioners or respondents, we submit that the 
proper remedy in this case must be determined by the 
scope of the violation, and that the nature of the viola­
tion dictates single-member districts as the only remedy 
which provides full and complete relief for the constitu­
tional violation.

The Lawyers’ Committee therefore files this brief as 
friend of the Court urging affirmance of the judgment 
below.

STATEMENT OF THE CASE

_ Plaintiffs, black voters of Dallas, Texas, filed this ac­
tion in 1971 challenging the at-large, citywide election of 
members of the Dallas City Council for unconstitutional 
dilution of black voting strength. The District Court on 
its own motion at a hearing on a motion for preliminary 
injunction to enjoin the 1971 city council elections dis­
missed the complaint, and the Court of Appeals reversed 
and remanded for a trial, Lipscomb v. Jonsson, 459 F.2d 
335 (5th Cir. 1972). On remand, the District Court 
certified the plaintiff class to consist of “ all blacks resid­
ing within the corporate limits of the City of Dallas” 
(399 F. Supp. 782, 783-84), but denied a motion to in­
tervene filed on behalf of Mexican-American voters while 
reserving to the Mexiean-Americans the right to partici­
pate in the post-trial hearing on the question of relief 
(id. at 784).

_ According to the 1970 Census, Dallas has a popula­
tion of 844,401 persons, of whom 65 percent are white 
(Anglo), 25 percent are black, and 10 percent are Mexi­



5

can-American. Black citizens are highly segregated resi- 
dentially, and are primarily concentrated in approximately 
40 black-majority Census tracts in the Dallas inner city 
area (399 F. Supp. at 785). Mexican-Americans consti­
tute a majority in four Census tracts, and are otherwise 
dispersed throughout Dallas (399 F. Supp. at 792-93).

Under the plan challenged by the plaintiffs, eleven city 
council members were elected at-large to a term of two 
years. Eight council members were required to run from 
eight residential districts under a “place”  requirement, 
although elected in citywide voting, and the remaining 
three— including the Mayor— were required to qualify by 
“ place” but with no district residency requirement (399 
F. Supp. at 785). A majority vote was required for elec­
tion (id.). At least since 1959, city council elections have 
been controlled largely by the white-dominated Citizens 
Charter Association (CCA), a nonpartisan slating group 
whose endorsed candidates have won 82 percent of the 
elections (id. at 786).

Since 1907, only two blacks have been elected to the 
Dallas City Council under the at-large system (id. at 
7871.1 This, the District Court found, was a result of 
“ the existence of past discrimination”  (id. at 790) and 
“ a customary lesser degree of access to the process of 
slating candidates than enjoyed by the white community” 
(id.). Both of the blacks elected to the city council were 
elected as a result of endorsement by the CCA and ran 
only against other black candidates (id. at 787). In addi­
tion, the District Court found that black residents had 
a “ lesser degree of opportunity . . .  to meaningfully par­
ticipate in the election process” under the at-large system 
because of racially polarized voting under which “ the 
white community, the non-minority voter tends not to

1 At the time of trial, the Dallas City Council was composed of 
two blacks, one Mexican-American, and eight whites (Anglos) 
(399 F. Supp. at 787, n.5).



6

vote for the black candidates”  (id. at 790). The District 
Court’s analysis of five races since 1959 in which blacks 
ran for city council seats showed that black voters gen­
erally voted overwhelmingly for black candidates, and 
that white voters generally voted overwhelmingly for 
white candidates, in white-on-black contests (id. at 785- 
86). This current pattern of racial bloc voting, and also 
the high degree of residential housing segregation, the 
District Court found were present “ lingering effects” of 
“past official race discrimination” (id. at 790). The evi­
dence also showed that Dallas blacks living in the major­
ity black Census tracts in the inner city area— 93 percent 
of all blacks in Dallas— suffered deprivations and in­
equalities in the areas of housing, education, employment, 
and income (id. at 785).

The District Court found that in the past, the Dallas 
City Council had enacted ordinances requiring segrega­
tion of the races and the city council had acknowledged 
racial discrimination in law enforcement (id. at 787), 
but the Court held that the evidence showed that the city 
council was presently responsive to the interests of the 
minority communities (id. at 790-91). “ This present re­
sponsiveness, however,”  the District Court held, “ is not 
enough to justify the present exclusive at-large voting 
plan when weighed against the other factors which I 
have found”  (id. at 791).

Finding that blacks in Dallas had been subjected to 
official past discrimination “which precludes effective 
participation in the electoral system” and that “ black 
voters of Dallas do have less opportunity than do the 
white voters to elect councilmen of their choice” (id. at 
790), the District Court held the all at-large system un­
constitutional for dilution of black voting strength, and 
this holding was not challenged on appeal, Lipscomb v. 
Wise, 551 F.2d 1043, 1045 (5th Cir. 1977), nor is it 
challenged in this Court.



7

After striking down the all at-large scheme, the Dis­
trict Court afforded the parties an opportunity to present 
redistricting plans. The city proposed as a remedy that 
eight city council members be elected from, districts—  
corresponding to the eight districts previously estab­
lished for the residency requirement under the at-large 
system— and that three city council members, including 
the Mayor, continue to be elected at large (the “ eight/ 
three plan” ) (399 F.Supp. at 791). The city’s proposal 
to the District Court was not submitted for Federal pre­
clearance under § 5 of the Voting Rights Act of 1965, 
42 U.S.C. § 1973c. The plaintiffs offered two plans, one 
providing ten single-member districts and a Mayor elect­
ed at-large (the “ ten/one plan” ), and a second alterna­
tive plan providing for the election of all eleven mem­
bers of the City Council from single-member districts, 
with the Mayor elected by the City Council itself (the 
“ eleven./zero plan” ) (id.).

After a hearing on the remedy, the District Court 
ordered into effect for the April, 1975 city council elec­
tions (id. at 798) the eight,/three plan proposed by the 
city council. Under the city’s plan blacks comprised a 
majority of the population in only two districts (District 
6, 73.60% black; District 8, 87.30% black) and Mexican- 
Americans lacked a majority in any district and at best 
constituted only 20 percent of the population in one (id. 
at 795). The District Court’s preference for the city’s 
plan was based on (1) “ a consideration of the impact 
that any plan would have on the Mexican-American citi­
zens of Dallas”  and (2) “ the legitimate governmental 
interest to be served by having a city-wide viewpoint on 
the City Council” (id. at 792). As to the first, the 
District Court reasoned that Mexican-Americans “benefit 
to a significant extent from at-large voting” as a result 
of their “ swing vote”  position (id. at 793), and thus 
the eight/three plan would “ enhance the opportunity of 
the Mexican-American citizens of Dallas to utilize their



voting potential in a significant new way, while not un­
dermining the degree of participation they have enjoyed 
under the exclusive at large voting plan” {id. at 794). 
As to the second, the District Court found on testimony 
of defendants’ witnesses that the election of some coun­
cil members at-large would be “ desireable”  [sic] {id. at 
794), that “ there is a legitimate governmental interest 
to be served by having some at-large representation on 
the Dallas City Council; [and] that this governmental 
interest is the need for a city-wide view on those matters 
which concern the city as a whole, e.g., zoning, budgets, 
and city planning . . {id. at 795).

After the 1975 city council elections in which a Mexi- 
can-American candidate was defeated for one of the at- 
large positions, counsel for the Mexican-Americans sought 
further modification of the court-ordered plan and pro­
posed to show that far from enhancing their position, the 
eight/three plan “ dilutes the vote of the Mexican- 
American citizen and makes it impossible for a Mexican- 
American to participate in the election process”  (551 
F.2d at 1048).

On appeal, the Fifth Circuit held that the remedy 
ordered into effect by the District Court was inadequate 
and the Court reversed the judgment of the District 
Court and remanded for a new single-member districting 
plan with the city having the option of electing the 
Mayor at-large (the ten/one plan) or by election of the 
city council (the eleven/zero plan). 551 F.2d 1043, 1049. 
The appeals court considered that the relief adopted and 
ordered into effect by the District Court must be judged 
by the standards governing court-ordered plans (551 
F.2d at 1046-47), and that the particular situation of the 
Mexican-American citizens in Dallas did not constitute a 
“ special circumstance”  justifying a departure from the 
preference for single-member districts in court-ordered 
plans {id. at 1048) :



9

We conclude that (1) as far as this record is con­
cerned, chicano “ access”  to the political processes of 
Dallas need not be improved since it is ex hypothesi 
the same “ access” as that of white persons; and (2) 
the district court’s opinion was based on a theory of 
electoral politics that applies as well if not better to 
single-member districts than to at-large elections. 
Thus, the situation of the Mexican-American voters 
does not constitute a special circumstance within 
the contemplation of the cases which require that 
absent such special circumstances, the city’s legis­
lative body be elected from single member districts.

On August 30, 1977, Mr. Justice Powell granted a 
stay of the judgment of the Court- of Appeals pending 
disposition of the defendants’ petition for certiorari, 
Wise v. Lipscomb, No. A-149, and on November 2, 1977 
the Court denied an application for an injunction against 
filling one of the three at-large seats by special election, 
No. A-396. Defendants’ petition for a writ of certiorari 
was granted on January 9, 1978.

SUMMARY OF ARGUMENT

This case is important because the arguments of peti­
tioners, if accepted, would erode and undo the major 
holdings of this Court in White V. Regester, 412 U.S. 755 
(1973), and Connor v. Johnson, 402 U.S. 690 (1971), 
and their progeny which were designed to end the century- 
long voting discrimination against minority citizens and 
to make the newly-gained franchise secured by the Voting 
Rights Act of 1965 a reality. Beginning with the earliest 
reapportionment cases, this Court recognized that at-large 
voting for public officials has a dangerous potential for 
minimizing and cancelling out the vote of minority citi­
zens. In White-— articulating criteria which petitioners 
concede are directly applicable here— the Court held that 
the Fourteenth Amendment prohibits at-large voting 
where it denies blacks and Mexican-Americans equal ac­



10

cess to the political process, and in Connor and its pro­
geny the Court held that because at-large voting sub­
merges electoral minorities, single-member districts are 
preferred in court-ordered plans, absent unusual circum­
stances. The principles developed in these cases are di­
rectly applicable here both to protect against dilution 
of minority voting strength and to secure the goal of 
Reynolds v. Sims, 377 U.S. 533, 565-66 (1964), of “ fair 
and effective representation for all citizens.”

This case presents the unusual and seemingly para­
doxical question of whether some at-large voting is 
proper as a remedy for an all at-large voting scheme 
conceded to be unconstitutional for dilution of black 
voting strength. If the Court accepts petitioners’ hy­
pothesis, it will sanction a remedy which incorporates 
part of the constitutional violation!

Because the city’s eight/three plan was submitted to 
the District Court pursuant to court order as a remedy, 
because the District Court ordered the eight/three plan 
into effect for city council elections, and because when the 
plan was submitted the city lacked the authority under 
its own Charter legislatively to enact such a plan, the 
Court of Appeals was correct in rejecting the city’s plan 
as a remedy because it clearly fails to comply with the 
rule that in court-ordered plans single-member districts 
are preferred absent unusual circumstances. Under the 
circumstances present here, this Court has never recog­
nized any distinction between the standards controlling 
“ court-ordered” plans and those governing “ court-ap­
proved” plans. Such a distinction would allow petition­
ers to circumvent both the principles governing court- 
ordered plans and the Federal preclearance requirements 
of § 5 of the Voting Rights Act of 1965, both of which 
were designed to prevent new forms of racial discrimina­
tion in voting. Indeed, such a radical departure from



11

the prior decisions of this Court would severely under­
mine and as a practical matter completely destroy the 
guarantees against racial discrimination in voting so 
laboriously developed in the most important voting rights 
decisions of this Court.

Nor are the findings of the District Court sufficient 
in this case to sustain an exception to the rule of prefer­
ence for single-member districts in court-ordered plans. 
The District Court’s findings regarding the Mexiean- 
American vote are contradictory and at best ambiguous, 
and this Court in prior decisions has rejected the con­
tention that the city’s expressed interest for citywide 
representation is an “unusual circumstance” sufficient to 
overcome the preference for single-member districts.

Alternatively, even if the Court rejects our contention 
that this is a court-ordered plan governed by the single­
member district rule, the city’s plan must fall under the 
equitable principles of securing “ complete justice”  and 
adjusting remedies to grant “ necessary relief.” The city’s 
plan must fail as a remedy because it includes elements 
of the constitutional violation. If the election of eleven 
city council members at-large unconstitutionally dilutes 
black voting strength, then the election of three city 
council members at-large also minimizes and cancels out 
black voting strength. Further, to the extent that any 
fairly drawn single-member district plan would include 
three majority black districts (as opposed to two in the 
city’s plan), and would include districts in which the 
percentage of Mexican-Americans would be higher than 
their citywide percentage, the eight/three plan fails to 
place either minority group in the position they would 
have held but for the constitutional violation, and in fact 
perpetuates, rather than eradicates, the discrimination of 
the past.



12

ARGUMENT

I. ON THE FACTS OF THIS CASE, AT-LARGE 
MUNICIPAL ELECTIONS FOR MEMBERS OF THE 
DALLAS CITY COUNCIL ARE UNCONSTITU­
TIONAL FOR DILUTION OF BLACK VOTING 
STRENGTH.2

While at-large elections are “not per se illegal under 
the Equal Protection Clause,”  Whitcomb v. Chavis, 403 
U.S. 124, 142 (1971), the Court has repeatedly held that 
at-large voting is unconstitutional when “ designedly or 
otherwise, a multi-member constituency apportionment 
scheme, under the circumstances of a particular case, 
would operate to minimize or cancel out the voting 
strength of racial or political elements of the voting popu­
lation.”  Burns v. Richardson, 384 U.S. 73, 88 (1966) ; 
Fortson v. Dorsey, 379 U.S. 433, 439 (1965); accord, 
Dallas County v. Reese, 421 U.S. 477, 480 (1975) ; White 
v. Regester, 412 U.S. 755, 765 (1973); Whitcomb v. 
Chavis, supra, 403 U.S. at 143. In Fairley v. Patterson, 
decided sub nom. Allen v. State Board of Elections, 393 
U.S. 544, 569 (1969), the Court in considering whether 
a switch to at-large elections was subject to Federal 
preclearance under § 5 of the Voting Rights Act of 1965 
held:

The right to vote can be affected by a dilution of 
voting power as well as by an absolute prohibition on 
casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 
555. Voters who are members of a racial minority 
might well be in the majority in one district, but 
in a decided minority in the county as a whole. This 
type of change could therefore nullify their ability 
to elect the candidate of their choice just as would 
prohibiting some of them from voting.

2 Although the city has acquiesced in the District Court’s finding 
of unconstitutional dilution, we deem it important to address this 
issue to emphasize the nature of the violation as it affects the scope 
of the necessary remedy.



13

In many parts of the South— and possibly elsewhere—  
at-large elections “ designedly or otherwise”  are the last 
vestige of racial segregation in voting.3 Although blacks 
and other minorities in the South are now permitted 
to register and vote in large numbers— primarily as a 
result of the Voting Rights Act of 1965— at-large elec­
tions which dilute minority voting strength “nullify their 
ability to elect the candidate of their choice just as 
would prohibiting some of them from voting.”

In White v. Regester, 412 U.S. 755, 766 (1973), aff’g 
in relevant part, Graves v. Barnes, 343 F. Supp. 704 
(W.D. Tex. 1972) (three-judge court), the Court held 
that at-large elections unconstitutionally dilute minority 
voting strength when plaintiffs have produced

evidence to support findings that the political proc­
esses leading to nomination and election were not 
equally open to participation by the group in ques­
tion— that its members had less opportunity than

3 W ashington Research Project, The Shameful Blight : T he 
Survival of Racial Discrimination in V oting in the  South 109-26 
(1972); United States Commission on Civil Rights, Political 
Participation 21-25 (1968); see also Carpeneti, Legislative Appor­
tionment: Multi-Member Districts and Fair Representation, 120 
U. Pa .L. Rev. 666 (1972) ; Banzhaf, Multi-Member Electoral Dis­
tricts— Do they Violate the “ One Man, One Vote”  Principle, 75 
Y ale L.J. 1309 (1966). There can be no doubt that in some in­
stances at-large municipal elections have been instituted for pur­
poses of discrimination, e.g., Stewart V. Waller, 404 F. Supp. 206 
(N.D. Miss. 1975) (three-judge court) (1962 Mississippi statute 
requiring switch to at-large municipal voting held unconstitutional 
as racially motivated). In other instances, the justification advanced 
is to eliminate ward politics and to promote governmental reform, 
but the effect on minority participation is equally discriminatory:

In a fundamental sense, the Black American has fallen 
victim of governmental reform. In their zeal for efficiency, 
democratic government, and the elimination of corruption, the 
reformers have led us to new political systems which operate 
to the detriment of minority groups.

Sloane, “ Good Government” and the Politics of Race, 17 Social 
Problems 156, 174 (1969).



14

did other residents in the district to participate in 
the political processes and to elect legislators of 
their choice.

The Court in White held at-large voting for the Texas 
Legislature in Dallas County unconstitutional on a show­
ing of (1) “ the history of official racial discrimination in 
Texas, which at times touched the right of Negroes to 
register and vote and to participate in the democratic 
processes” ; (2) Texas law “ requiring a majority vote 
as a prerequisite to nomination in a primary election” ; 
(3) the “ so-called ‘place’ rule limiting candidacy for 
legislative office from a multimember district to a speci­
fied ‘place’ on the ticket” ; (4) since Reconstruction, only 
two black candidates from Dallas County has been elected 
to the House of Representatives, and these were the only 
two blacks ever slated by the white-controlled Dallas 
Committee for Responsible Government (DCRG) ; and 
(5) the DCRG did not require the support of black 
voters, and “ did not therefore exhibit good-faith concern 
for the political and other needs and aspirations of the 
Negro community.” 412 U.S. at 766-67.

The Court made similar findings with respect to Mexi- 
can-Ameriean voters in Texas. The Court found that 
the Mexican-American community of Bexar County (San 
Antonio) was effectively removed from the political 
processes on proof that it “had long suffered from, and 
continues to suffer from, the results and effects of invidi­
ous discrimination and treatment in the fields of educa­
tion, employment, economics, health, politics and others” ; 
that the state poll tax and restrictive voter registration 
procedures had foreclosed effective political participation; 
and that “ the Bexar County legislative delegation in the 
House -was insufficiently responsive to Mexican-American 
interests.” Id. at 767-69. Single-member legislative dis­
tricts were required “ to remedy ‘the effects of past and 
present discrimination against Mexican-Amerieans’ . . .



15

and to bring the community into the full stream of politi­
cal life of the county and State by encouraging their 
further registration, voting, and other political activities.” 
Id. at 769.4

White is the first case in which this Court struck down 
at-large voting— there in multi-member legislative dis­
tricts— for unconstitutional dilution of minority voting 
strength, and the lower courts have applied the White 
standards to invalidate at-large elections at the county, 
parish, and municipal levels where the proof shows that 
at-large voting denies minorities equal access to the po­
litical process. E.g., Parnell v. Rapides Pamsh School 
Bd., 563 F.2d 180 (5th Cir. 1977); Wallace v. House, 515 
F.2d 619 (5th Cir. 1975), vacated and remanded on re­
lief, 425 U.S. 947 (1976), on remand, 538 F.2d 1138 (5th 
Cir. 1976), cert, denied, 431 U.S. 965 (1977); Perry v. 
City of Opelousas, 515 F.2d 639 (5th Cir. 1975) ; Zimmer 
v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), 
aff’d on other grounds sub nom. East Carroll Parish

i The District Court’s judgment affirmed by this Court also 
rested on evidence of racial bloc voting, 343 F. Supp. at 731, 732:

The population of the West Side of San Antonio tends to 
vote overwhelmingly for Mexiean-American candidates when 
running against Anglo-Americans in party primary or special 
elections, to split when Mexican-Americans run against each 
other, and to support the Democratic Party nominee regardless 
of ethnic background in the general elections. The record 
shows that the Anglo-Americans tend to vote overwhelmingly 
against Mexican-American candidates except in a general elec­
tion when they tend to vote for the Democratic Party nominee 
whoever he may be although in a somewhat smaller proportion 
than they vote for Anglo-American candidates, * * * It is not 
suggested that minorities have a constitutional right to elect 
candidates of their own race, but elections in which minority 
candidates have run often provide the best evidence to deter­
mine whether votes are cast on racial lines. All these factors 
confirm the fact that race is still an important issue in Bexar 
County and that because of it, Mexican-Americans are frozen 
into permanent political minorities destined for constant de­
feat at the hands of the controlling political majorities.



16

School Bd. v. Marshall, 424 U.S. 636 (1976) ; Turner v. 
McKeithen, 490 F.2d 191 (5th Cir. 1973); Paige v. Gray, 
399 F. Supp. 459 (M.D. Ga. 1975), vacated and re­
manded, 538 F.2d 1108 (5th Cir. 1976), on remand, 437 
F. Supp. 137 (M.D. Ga. 1977) ; Bolden v. City of Mobile, 
423 F. Supp. 384 (S.D. Ala. 1976), a,ppeal pending, No. 
76-4210 (5th Cir.) ; Blacks United for Lasting Leader­
ship, Inc. v. City of Shreveport, Louisiana, 71 F.R.D. 623 
(W.D. La. 1976), appeal pending, No. 76-3619 (5th 
Cir.). See Bonapfel, Minority Challenges to At-Large 
Elections: The Dilution Problem, 10 Ga . L. Rev. 353 
(1976).

Here it is clear that the District Court properly ap­
plied the White v. Regester standards to strike down at- 
large municipal voting which minimized and cancelled 
out black voting strength. On the findings of fact made 
by the District Court, all of the elements which led this 
Court to hold unconstitutional at-large voting for the Dal­
las County delegation to the Texas Legislature equally 
were present to deny Dallas blacks equal access to the 
municipal voting process. Hence the District Court prop­
erly concluded that at-large municipal elections violated 
plaintiffs’ Fourteenth Amendment rights.

II. THE FIFTH CIRCUIT CORRECTLY HELD THAT 
THE REMEDY ORDERED BY THE DISTRICT 
COURT FAILED TO MEET THE REQUIREMENTS 
APPLICABLE TO COURT-ORDERED REDISTRICT­
ING PLANS.

A. The Eight/Three Plan Ordered Into Effect by the 
District Court Was a Court-Ordered Plan.

The mixed eight/three plan was adopted by the District 
Court as a remedy for at-large, citywide municipal elec­
tions in this case and ordered into effect for the April, 
1975 municipal elections (399 F. Supp. at 798). When 
it submitted the plan to the District Court, the Dallas



17

City Council lacked the legislative authority to change 
on its own the council voting system and to provide for 
the election of eight council members by districts {id. 
at 800) :

Changes to the voting system necessarily are changes 
to the Charter and absent a judicial determination 
of unconstitutionality, such changes can only be ef­
fected by a Charter Amendment adopted by the 
voters.5

Further, any effort by the Dallas City Council legisla­
tively to “ enact or seek to administer” such a change 
without Federal preclearance was barred by § 5 of the 
Voting Rights Act of 1965, 42 U.S.C. § 1973c. United 
States v. Board of Comm’rs of Sheffield, No. 76-1662 
(decided March 6, 1978) ; Briscoe v. Bell, 432 U.S. 404 
(1977); Connor v. Waller, 421 U.S. 656 (1975) ; Perkins 
v. Matthews, 400 U.S. 379 (1971); Allen v. State Bd. of 
Elections, supra.6 No such Federal preclearance of the 
switch to the eightythree plan has been sought or ob­
tained.

In the redistricting cases, this Court has developed 
certain principles governing court-ordered redistricting 
plans. The cases articulating these principles and apply­

5 Subsequently, the City in April, 1976 did submit its eight/three 
plan ordered into effect by the District Court to a Charter Amend­
ment vote and the amendment was adopted. However, it still was 
not submitted for Federal preclearance under § 5. This tactic does 
not alter the fact that the plan was first adopted by the District 
Court and ordered into effect for the April, 1975 city council elec­
tions. The adoption of the court-ordered plan by the City by Charter 
Amendment indicates only compliance with the District Court’s 
order.

6 The State of Texas, and consequently all local jurisdictions, 
United States v. Board of Election Comm’rs of Sheffield, supra, 
were brought within the coverage o f § 5 of the Voting Rights Act 
of 1965 by the 1975 amendments to the Act. See Briscoe v. Bell, 
supra. As amended, § 5 covers all changes in Dallas election laws 
enacted after November 1, 1972. 42 U.S.C. § 1973c (Supp. V 1975).



18

ing them make no distinction whether the plan adopted 
or approved by the court and ordered into effect as a 
remedy for a constitutional violation is a plan that has 
been formulated by the District Court, Connor v. Wil­
liams, 404 U.S. 549 (1972), or formulated by the local 
legislative body itself, Wallace v. House, 425 U.S. 947 
(1976) ; East Carroll Parish School Bd. v. Marshall, 424 
U.S. 636 (1976).

The salient facts of East Carroll Parish are similar to 
those presented here. In 1968, the District Court struck 
down for malapportionment the wards established for 
election of members of the East Carroll Parish police 
jury and school board, and the police jury proposed as 
a remedy that all members of the policy jury and school 
board be elected at-large, which the District Court adopted 
and ordered into effect (424 U.S. at 637). In 1971, the 
District Court instructed the police jury and school board 
to file new plans based on 1970 Census data, and the 
police jury and school board once against submitted their 
at-large plan. “ Following a hearing the District Court 
again approved the multi-member arrangement”  {id. at 
637-38), holding that there was no dilution of black vot­
ing strength because the parish was majority black in 
population (Zimmer v. McKeithen, 485 F.2d 1297, 1301 
(5th Cir. 1973) (en banc)). The Fifth Circuit vacated 
and remanded, not because the plan failed to comply with 
the principles governing court-ordered plans, but because 
at-large voting unconstitutionally diluted black voting 
strength under the White v. Regester criteria, Zimmer 
v. McKeithen, swpra.

On certiorari, the black voter intervenors contended 
that the District Court’s plan failed to meet the require­
ments governing court-ordered plans, while the Solicitor 
General filed an amicus brief arguing that because the 
plan was “ submitted to [the District Court] on behalf of 
a local legislative body”  (424 U.S. at 638 n.6) it should



19

be treated as local legislation subject to the requirements 
of § 5 of the Voting Rights Act. But this Court rejected 
the Government’s contention and declined to depart from 
the rule “ that court-ordered plans resulting from equi­
table jurisdiction over adversary proceedings are not con­
trolled by § 5” (id .).

The Court held that the at-large plan in East Carroll 
Parish was a court-ordered plan subject to the general 
principles governing such plans— and not local legislation 
subject to § 5— because “ the reapportionment scheme was 
submitted and adopted pursuant to court order” (id.) and 
because the police jury lacked the authority under state 
law (because of a § 5 objection to the 1968 state author­
izing legislation) to reapportion itself by adopting at- 
large elections “ on its own authority.”  Accordingly, when 
Courts of Appeals have held that the principles governing 
court-ordered plans are not applicable to plans proposed 
by local legislative bodies and adopted by District Courts 
as a remedy for unconstitutional districts, Zimmer v. Mc- 
Keithen, 485 F.2d 1297, 1302 (5th Cir. 1978), aff’d on 
other grounds sub nom. East Carroll Parish School Bd. v. 
Marshall, supra; Wallace v. House, 515 F.2d 619, 635-36 
(5th Cir. 1974), vacated and remanded, 426 U.S. 947 
(1976), this Court has granted certiorari either to cor­

rect the ground for decision, East Carroll Parish School 
Bd. v. Marshall, supra, or to vacate the judgment and 
remand for further consideration, Wallace v. House, 
supra.

All of the elements of the definition of a court-ordered 
plan present in East Carroll Parish are present here. The 
city council’s plan was submitted to the District Court 
pursuant to court order (399 F. Supp. at 784) ; the plan 
was “ ordered”  into effect by the District Court (id. at 
798) ; and, the city council lacked the authority to enact 
and implement the eight/three plan on its own both by 
the City Charter (id. at 800) and by the Federal pre­



20

clearance provisions of § 5 of the Voting Rights Act of 
1965.7

B. There Is No Distinction Between “ Court-Ordered”  
Plans and “ Court-Approved” Plans A pplicable H ere 
That Would Permit the City’s E igh t/T h ree  Plan 
To Avoid the Principles Governing Court-Ordered 
Plans.

Contrary to the opinion of Mr. Justice Powell in grant­
ing the stay of the Fifth Circuit’s judgment, Wise v. Lips­
comb, No. A-149 (August 30, 1977), slip op., p. 3, n. 2, 
this Court in considering whether the principles governing 
court-ordered plans apply has never recognized a distinc­
tion between a “ court-ordered plan”  and a “ court-approved 
plan.” Indeed, in East Carroll Parish, which Mr. Justice 
Powell cites as an example of a court-ordered plan {id.), 
the Court interchangeably referred to the multi-member 
plan “ approved” (424 U.S. at 638) and “ adopted” {id. at 
638 n.6) by the District Court, and described the action 
of the District Court as “ approving”  {id. at 638 n.4), 
“ adopting” {id. at 639), and “ endorsing” {id.) the at- 
large plan.

Both East Carroll Parish and Connor v. Waller, 421 
U.S. 656 (1975), indicate that— at least in jurisdictions 
covered by the Federal preclearance requirements of § 5 
of the Voting Rights Act of 1965— there is no third 
category of “ court-approved” plans which circumvent both 
the principles governing court-ordered plans and the Fed­
eral preclearance requirements of § 5 governing legisla­

7 While discussed in East Carroll Parish, the legal authority of 
the local governing body is not crucial to the definition. A local 
governing body may have full authority to redistrict itself, but if 
its plan is submitted to the District Court and implemented pur­
suant to court order, then it still is a court-ordered plan. Cf. Kirksey 
v. Board of Supervisors of Hinds County, 554 F.2d 139 (5th Cir. 
1977) (en banc), cert, denied, ------  U.S. ------  (No. 77-499, No­
vember 28, 1977).



21

tively-enacted plans. In Connor v. Waller, supra, the 
District Court purported to approve an uncleared state 
legislative reapportionment plan enacted by the Missis­
sippi Legislature to supplant a reapportionment scheme 
previously struck down by the District Court as uncon­
stitutional, 396 F. Supp. 1308 (S.D. Miss. 1975) (three- 
judge court). On appeal, this Court reversed, holding 
that the District Court lacked jurisdiction to approve the 
plan in the absence of § 5 preclearance (421 U.S. at 656) :

Those Acts are not now and will not be effective 
as laws until and unless cleared pursuant to § 5. 
The District Court accordingly also erred in deciding 
the constitutional challenges to the Acts based upon 
claims of racial discrimination.

The facts of Connor v. Waller show why the plan at 
issue here is a court-ordered, and not a legislatively- 
enacted, plan. Contrary to the city’s action here, in 
Connor v. Waller the plan was not submitted to the Dis­
trict Court pursuant to court order as a proposed remedy, 
but rather was enacted by a legislature on its own with 
full authority to promulgate such a plan (396 F. Supp. 
at 1311). Further, contrary to the District Court’s order 
here, the District Court did not purport to order the 
legislature’s plan into effect, but merely sustained it 
against constitutional challenge (396 F. Supp. at 1332).

The cases cited above— East Carroll Parish and Wal­
lace V. House— firmly establish that the principles gov­
erning court-ordered plans apply -whether the plan has 
been proposed by a legislative body to the District Court 
or formulated by the District Court itself, and this firmly 
established rule of law is salutary and should be followed 
in this case. First, in enacting and reenacting the Voting 
Rights Act Congress was aware that states and political 
subdivisions covered by the suspension-of-voting-tests pro­
vision might enact changes in their election laws which 
would nullify or dilute the newly secured franchise of



22

minorities, Allen v. State Board of Elections, supra, 393 
U.S. at 548, and therefore strict scrutiny of election law 
changes through Federal preclearance as provided by § 5 
was required. The rule first enunciated in Connor v. 
Johnson, 402 U.S. 690, 691 (1971), that “ [a] decree of 
the United States District Court is not within reach of 
Section 5 of the Voting Rights Act”  is compatible and 
not inconsistent with this concern because the Court has 
developed strict standards governing excepted court-or­
dered plans to insure against dilution of minority voting 
strength through at-large elections, Connor v. Johnson, 
supra, 402 U.S. at 692, or through gerrymandering of 
district lines, Connor v. Finch, 431 U.S. 407, 421-26
(1976) . See Comment, Section 5 : Growth or Demise of 
Statutory Voting Rights?, 48 Miss. L.J. 818, 834-36 n.125
(1977) .

Any new rule which would allow a redistricting plan 
submitted to a District Court by a state or political sub­
division covered by § 5 to escape both § 5 preclearance 
and the standards governing court-ordered plans would 
be entirely inconsistent with the intent of Congress in 
enacting the Voting Rights Act and would invite abuse 
and circumvention by suspect jurisdictions of the neces­
sarily stringent standards applicable to § 5 review or al­
ternatively to court-ordered plans.

Second, very few court-ordered redistricting plans or­
dered into effect as a remedy for a constitutional violation 
are formulated by the District Court itself, particularly 
in cases involving counties and municipalities. In the 
typical case, the District Court directs the parties to 
submit proposed plans, and then selects among the pro­
posed plans for the most efficacious remedy.8 We cannot 
believe that this Court, in formulating the special rules 
governing court-ordered plans and announcing them as 
general principles governing all “ court-ordered plans,”

8 See cases cited on pp. 15-16, supra.



23

Chapman v. Meier, 420 U.S. 1, 18 (1975), intended to 
restrict their applicability to the narrow class of cases in 
which the District Judges themselves actually draw the 
new district lines. Indeed, such a narrow limitation of 
the general principles governing court-ordered plans would 
undermine, weaken, and unduly restrict the broadly bene­
ficial purposes such rules are designed to serve, Chapman 
v. Meier, supra, 420 U.S. at 15-18.

The Court of Appeals here was correct in treating the 
eight/three plan proposed by the city council and adopted 
by the District Court as a court-ordered plan to which the 
general principles governing court-ordered plans apply.

C. Neither the Impact of the Mexican-American Vote 
Nor the City’s Interest in City wide Representation 
Justify a Departure, in This Court-Ordered Redis­
tricting Plan, From the Preference for Single- 
Member Districts.

As the Court held in East Carroll Parish School Bd. 
v. Marshall, supra, 424 U.S. at 639:

We have frequently reaffirmed the rule that when 
United States district courts are put to the task of 
fashioning reapportionment plans to supplant eon- 
cededly invalid state legislation, single-member dis­
tricts are to be preferred absent unusual circum­
stances, Chapman v. Meier, 420 U.S. 1, 17-19 
(1975) ; Mahan v. Howell, 410 U.S. 315, 333 (1973); 
Connor v. Williams, 404 U.S. 549, 551 (1972) ; Con­
nor v. Johnson [402 U.S. 690] at 692.

In court-ordered plans, multi-member districts and at- 
large voting are to be avoided because of the “practical 
weaknesses inherent in such schemes,”  Chapman v. Meier, 
supra, 420 U.S. at 15-16:

First, as the number of legislative seats within 
the district increases, the difficulty for the voter 
in making intelligent choices among candidates also



24

increases. * * * Ballots tend to become unwieldy, 
confusing, and too lengthy to allow thoughtful con­
sideration. Second, when candidates are elected at 
large, residents of particular areas within the dis­
trict may feel that they have no representative 
specially responsible to them. * * * Third, it is 
possible that bloc voting by delegates from a multi­
member district may result in undue representation 
of residents of these districts relative to voters in 
singlemember districts. * * * Criticism of multimem­
ber districts has been frequent and widespread.

Last Term in Connor v. Finch, 431 U.S. 407, 415 (1977), 
the Court reiterated:

Because the practice of multimember districting can 
contribute to voter confusion, make legislative rep­
resentatives more remote from their constituents, 
and tend to submerge electoral minorities and over­
represent electoral majorities, this Court has con­
cluded that single-member districts are to be pre­
ferred in court-ordered legislative reapportionment 
plans unless the court can articulate a ‘singular 
combination of unique factors’ that justifies a dif­
ferent result. Mahan v. Howell, 410 U.S. 315, 333; 
Chapman v. Meier, supra, at 21; East Carroll Parish 
School Board v. Marshall, 424 U.S. 636, 639.

Although this principle, sometimes called the Connor rule, 
was first developed in a state legislative reapportionment 
case, Connor v. Johnson, supra, 402 U.S. at 692, the Court 
subsequently applied it to cases involving redistricting of 
a parish, East Carroll Parish School Bd. v. Marshall, 
supra, and a municipality, Wallace v. House, supra. The 
rule is not confined to large multi-member districts, but 
applies to small ones as well, Chapman v. Meier, supra 
(applied to multi-member districts electing between two 
and five legislators); East Carroll Parish School Bd. v. 
Marshall, supra (parish of 12,884 population), and ap­
plies regardless of how long a state policy favoring at-



25

large voting has been in effect, Connor v. Finch, 431 U.S. 
407, 415 (1977) (historic policy in effect throughout 
Mississippi history). The rule also is applicable regard­
less of whether at-large voting is otherwise unconstitu­
tional for dilution of minority voting strength, Chapman 
v. Meier, supra, 420 U.S. at 19. Moreover, these cases 
show that inclusion in a remedial plan of some or even 
a significant number of single-member districts makes 
the at-large or multi-member features no less unaccepta­
ble in the “ court-ordered” context.

The Connor rule governing court-ordered plans yields 
beneficial results and a more effective exercise of the 
franchise, and therefore only a narrow range of excep­
tions have been— and should be— allowed. In Comior v. 
Johnson, supra, this Court directed the District Court to 
devise a single-member districting plan “ absent insur­
mountable difficulties,”  402 U.S. at 692. On remand, the 
District Court found that it was too close to the regularly 
scheduled elections and the Census data were insufficiently 
complete to allow creation of single-member districts, 330 
F. Supp. 521 (S.D. Miss. 1971) (three-judge court), and 
this Court refused further relief, 403 U.S. 928 (1971).

Then in Mahan v. Howell, 410 U.S. 315 (1973), this 
Court allowed the creation of only one multi-member dis­
trict in a statewide legislative reapportionment plan as 
an “ interim remedy” because of a “ singular combination 
of unique factors”  (410 U.S. at 333)— the fact that 
single-member districts, beceause of problems with the 
Census data, created underrepresentation of military per­
sonnel in violation of their constitutional rights {id. at 
331-332). In no other case has this Court countenanced 
at-large voting in a court-ordered redistricting plan.

No such factors are present here, and the considerations 
relied upon by the District Court and advanced by the 
defendants to justify three at-large seats have previously



26

been rejected by this Court as insufficient to sustain a 
departure from the single-member district rule.

(1) The Mexican-American Vote.

The District Court held that the mixed eight/three plan 
would “ enhance” political participation opportunities for 
Mexican-Americans without “undermining” the limited 
degree of participation they had gained under the all at- 
large system (399 F. Supp. at 794). However, the Dis- 
tirct Court’s findings in this regard are contradictory on 
their face and quite speculative. The District Court noted 
testimony at the remedy hearing that under the at-large 
system there had been past discrimination against Mexi­
can-Americans and that Mexican-Americans are denied 
equal access to the political process, and specifically found 
“ that Mexican-American citizens of Dallas have suffered 
some restrictions of access to the political processes with­
in the city but that this restriction does not amount to 
present dilution”  (id. at 793), and that the “ restriction 
of access which is present for the Mexican-Americans is 
of a similar nature to that this Court has found to exist 
for the black voters of. Dallas . . . .”  {id.). Further, the 
District Court found, “ At-large voting may operate in 
part as a restriction of access for Mexican-Americans as 
it has been for blacks”  (id. at 794).

Nevertheless, in the absence of any specific supporting 
findings of fact, the District Court concluded that an ex­
clusive single-member district plan “ would do nothing” 
to increase Mexican-American political participation, and 
“might tend to decrease it”  (id. at 793) (emphasis 
added). Here the conclusions of the District Court are 
difficult to understand. The District Court failed to 
articulate how the position of the Mexican-Americans in 
Dallas was any different from the position of Mexican- 
Americans in San Antonio, where this Court found in 
1973 that single-member districts were necessary to bring



27

the Mexican-American community “ into the full stream 
of political life,”  White v. Regester, supra, 412 U.S. at 
769. Further, if as the District Court found, Mexican- 
Americans were able to make political gains under the 
at-large system as a result of their “ swing vote” posi­
tion and through coalition politics in a community in 
which they comprise only eight to ten percent of the 
population, why wouldn’t their “ swing vote” position 
be stronger in single-member districts in which they 
would inevitably constitute a larger percentage of the 
voters in several individual districts than they would 
city wide?

Further, in reaching his conclusions, the District 
Judge applied erroneous legal standards. First, for the 
Mexican-American concern to fall under the “ singular 
combination of unique factors”  standard of Mahan, as 
the District Court thought it did (id. at 794), the trial 
court would have had to find either that single-member 
districts would result in numerically malapportioned dis­
tricts causing underrepresentation for the Mexican- 
Americans, or that single-member districts would deny 
Mexican-Americans their constitutional rights (cf. Ma­
han, supra, 410 U.S. at 331-32). The District Court 
made neither of these findings. Second, the District Court 
thought the “ enhancing”  standard justified retaining 
three at-large seats (id. at 794) because of the Fifth 
Circuit’s apparent holding in Zimmer v. McKeithen, 485 
F.2d 1297, 1308 (5th Cir. 1973), that multi-member 
districts are unconstitutional unless “ a district court de­
termines that multi-member districts afford minorities a 
greater opportunity for participation in the political 
processes than do single-member districts.”  However, this 
Court has never sanctioned that notion, and in Zimmer 
granted certiorari and affirmed “ but without approval of 
the constitutional views expressed by the Court of Ap­
peals” (East Carroll Parish, supra, 424 U.S. at 638).



28

Certainly the effect of any court-ordered redistricting 
plan on minority groups not specifically represented by 
the plaintiffs is a valid concern. But the District Court 
here— because it failed to apply the correct legal stand­
ard, and because its findings with regard to the Mexiean- 
Amerieans are contradictory, speculative, and without 
adequate support— failed to demonstrate that the position 
of the Mexican-Americans justified an exception to the 
Connor rule. Further, the Mexican-American community 
in whose interest the three at-large seats ostensibly were 
retained, have repudiated the notion that at-large voting 
enhances their political participation, and have repre­
sented that the experience of the 1975 municipal election 
shows that the three at-large seats actually minimize and 
cancel out their voting strength (551 F.2d at 1048).

(2) The Citywide Viewpoint.

The District Court did not find that at-large, citywide 
representation on the city council constituted an “ un­
usual circumstance”  under the Connor rule, was neces­
sary to efficient city administration, or that single-member 
districts violated the defendant city officials’ constitu­
tional rights, but only that three at-large seats were 
“ desireable” [sic], a “ legitimate governmental interest,” 
and a “benefit”  (399 F. Supp. at 794-95). Here again, 
the findings of the District Court are not sufficient to 
sustain an exception to the Connor rule.

There is nothing “ singular,”  “ unique,”  “ unusual,”  or 
even “ special”  about the city’s desire in this regard. In 
most cases in which at-large voting has been struck down, 
the officials of the state, county, or city submit plans to 
the District Court which provide for the at-large elec­
tion of all or some members of the governing body. See, 
e.g., Connor v. Finch, supra (state legislature) ; Parnell 
v. Rapides Parish Police Jury, 563 F.2d 180 (5th Cir. 
1977) (parish governing body) ; Wallace v. House, 515



29

F.2d 619 (5th Cir. 1975), vacated ami remanded, 425 
U.S. 947 (1976) (municipality). If the Court allows 
an exception to the Connor rule on this ground, then it 
would be tantamount to abolishing the rule entirely.

This Court has refused to allow an exception to the 
Connor rule for this kind of argument. Last Term in 
Connor v. Finch, supra, the Mississippi officials argued 
that multi-member legislative districts should be pre­
served in a court-ordered plan because of Mississippi’s 
historic policy and because legislators need to represent 
countywide interests, and single-member districts would 
inevitably fracture county lines. This Court rejected that 
contention, holding (431 U.S. at 415) :

The defendants’ unalloyed reliance on Mississippi’s 
historic policy against fragmenting counties is in­
sufficient to overcome the strong preference for 
single-member districting that this Court originally 
announced in this very case.

In Wallace v. House, 377 F. Supp. 1192 (W.D. La.
1974) , aff’d in part, rev’d in part, 515 F.2d 619 (5th Cir.
1975) , vacated and remanded, 425 U.S. 947 (1976), the 
District Court struck down at-large elections for the 
Board of Aldermen of the Town of Ferriday, Louisiana, 
for dilution of black voting strength, and the town pro­
posed two remedial plans, one providing for four aider- 
men elected from districts and one at-large (the four/one 
plan), and the second providing for the election of all 
five aldermen from single-member districts (the five./zero 
plan) (377 F. Supp. at 1199.) The District Court re­
jected the four/one plan for the reasons (1) that if the 
election of five aldermen at-large dilutes black voting 
strength, then the election of one alderman at-large also 
unconstitutionally abridges the right to vote (377 F. 
Supp. at 1199-1200), and (2) any fairly drawn single­
member district plan would create three majority black 
districts and two majority white districts, while the four,/



30

one plan would deprive black voters of an additional seat 
on the Board and give the Board a three-to-two white 
majority (id. at 1200).

On appeal, the Fifth Circuit affirmed the District 
Court’s findings of unconstitutional dilution, but reversed 
as to remedy. Citing Reynolds v. Sims, 377 U.S. 533 
(1964), Burns v. Richardson, 384 U.S. 73 (1966), and 
Chapman v. Meier, supra, to the effect that reapportion­
ment is primarily a legislative responsibility (515 F.2d 
at 634-36), the Fifth Circuit held that the District Court 
failed to give heed to the “ rule of deference to state or 
local legislative policies which are not unconstitutional” 
{id. at 635).

All of the reasons given by the District Court here 
in support of the eight/three plan were given by the 
Court of Appeals in Wallace in support of the town’s 
preferred four/one plan. First, the Fifth Circuit noted 
that the “ reason usually given in support of at-large elec­
tions for municipal offices is that at-large representa­
tives will be free from possible ward parochialism and 
will keep the interests of the entire city in mind as they 
discharge their duties,”  and while this has not always 
served the interests of Ferriday’s black citizens, “we can­
not say that the rationale is so tenuous that it can be 
disregarded” (id. at 633.) Second, the Court of Appeals 
found that the four/one plan was not unconstitutional, 
and would in fact enhance black voting strength, be­
cause while blacks were excluded from the Board under 
the all at-large plan they would be able to elect two black 
aldermen under the four/one plan, and therefore “ the 
Board’s mixed plan is a great improvement”  (id. at 632). 
Third, the Fifth Circuit noted that at-large voting in 
aldermanic elections had been the state policy of Louisi­
ana since 1898, and was not rooted in racial discrimina­
tion (id. at 633). Accordingly, the Fifth Circuit held 
(id. at 636) :



31

We conclude that the trial court should have adopted 
the mixed plan in deference to the Board of Aider- 
men’s considered preference for a plan incorporat­
ing one at-large place into the aldermanic election 
scheme.

On petition for writ of certiorari, this Court granted 
the writ, vacated the Fifth Circuit’s judgment, and re­
manded to the Court of Appeals “ for further considera­
tion in light of East Carroll Parish School Board v. 
Marshall, 424 U.S. 636 (1976) . . 425 U.S. 947 (1976).
The clear implication of this Court’s order is that the 
Fifth Circuit erred in failing to follow the Connor rule, 
and that the reasons given by the appeals court for 
deferring to the Board of aldermen’s preference— in­
cluding their desire for citywide representation— were 
insufficient to justify a departure from the preference 
for single-member districts. On remand, the Fifth Cir­
cuit found that no special circumstances existed which 
would allow a departure from the principle expressed in 
East Carroll Parish, 538 F.2d 1138 (5th Cir. 1976), and 
this Court subsequently denied defendants’ petition for a 
writ of certiorari, 431 U.S. 965 (1977).

The reasons given by the District Court in the case at 
bar in favor of its eight,/three plan and the arguments 
advanced by defendants in seeking reversal of the Fifth 
Circuit’s judgment are virtually identical to those relied 
upon by the Fifth Circuit in its first Wallace opinion, 
which were rejected by this Court in vacating the Fifth 
Circuit’s judgment and subsequently rejected by the Fifth 
Circuit on remand. There are no findings by the District 
Court or arguments advanced by defendants which would 
justify a departure from the action taken by this Court 
and subsequently by the Fifth Circuit in Wallace.

Moreover, there are good reasons why no departure 
should be permitted here. First, as the Fifth Circuit 
said on remand, “ The term, ‘special circumstances,’ en­



32

compasses only the rare, the exceptional, not the usual 
and diurnal,”  538 F.2d at 1144. The arguments made by 
the city here are the usual arguments typically made in 
these cases. Second, the District Court in this case found 
— and these findings are not contested— that the at-large 
representation which the city argues is necessary to pro­
vide a citywide viewpoint on the city council is exactly 
the same system which unconstitutionally denied the black 
citizens of Dallas equal access to the political process and 
operated to their detriment. Third, the overwhelming 
benefits of single-member districts and their advancement 
of an effective franchise so cogently outlined by the Court 
in Chapman and Connor v. Finch are more than sufficient 
to outweigh the city’s claimed interest in citywide repre­
sentation.

III. ALTERNATIVELY, THE MIXED EIGHT/THREE 
PLAN ORDERED INTO EFFECT BY THE DIS­
TRICT COURT—BY RETAINING THREE AT- 
LARGE SEATS—IS CONSTITUTIONALLY INADE­
QUATE AS A REMEDY FOR UNCONSTITUTIONAL 
AT-LARGE ELECTIONS.

Even if the Court determines that the remedial plan 
at issue here is not a court-ordered plan governed by the 
Connor rule, nevertheless the plan proposed by the Dallas 
City Council is inadequate as a matter of law to cure the 
constitutional violation conceded to exist. As this Court 
noted in Albemarle Paper Co. v. Moody, 422 U.S. 405, 
418 (1975) :

[I] t is the historic purpose of equity to “ securfe] 
complete justice,”  Brown v. Swann, 10 Pet. 593 
(1836) ; see also Porter v. Warner Holding Co., 328 
U.S. 395, 397-98 (1946). “ [Wjhere federally pro­
tected rights have been invaded, it has been the rule 
from the beginning that courts will be alert to ad­
just their remedies so as to grant the necessary 
relief.”  Bell v. Hood, 327 U.S. 678, 684 (1946).



33

Equity does complete justice and not by halves. Conse­
quently, in cases involving racial discrimination affecting 
the right to vote, this Court has held that

the court has not merely the power but the duty 
to render a decree which will so far as possible 
eliminate the discriminatory effects of the past as 
well as bar like discrimination in the future.

Louisiana v. United States, 380 U.S. 145, 154 (1965).
These principles of equitable remedies are equally appli­

cable here to do “ complete justice”  and to grant the “ nec­
essary relief.” In the redistricting cases, courts must be 
especially alert that the plan proposed as a remedy does 
not “  [perpetuate] an existent denial of access by the racial 
minority to the political process,” Kirksey v. Board of Su­
pervisors of Hinds County, Miss., 554 F.2d 139, 142 (5th 
Cir. 1977) (en banc), cert, denied, No. 77-499 (Novem­
ber 28, 1977). Here the city council in its eight/three plan 
failed in its affirmative obligation to grant complete relief 
for the constitutional violation. The constitutional viola­
tion is at-large voting for members of the Dallas City 
Council, which the District Court found perpetuates past 
discrimination against blacks, denies blacks equal access 
to the political process, and results in minimal representa­
tion on the city council of blacks handpicked by the white- 
dominated slating group. Far from eliminating the dis­
crimination present in at-large voting, the eight/three 
plan proposed by the city council perpetuates it by re­
taining three at-large seats. Hence, the proposed remedy 
fails under well-established equitable principles to grant 
complete relief or to secure “ complete justice.”  If the 
nature of the violation determines the scope of the rem­
edy, the remedy is incomplete because it fails to eliminate 
— and indeed, includes— elements of the violation.

Further, the proposed remedy does not restore Dallas 
blacks to the position they would have occupied had the 
violation not occurred. With only two majority black



34

districts (399 F. Supp. at 795), the city’s plan fails to 
give Dallas blacks a controlling voice in three districts, 
which they would have had absent the constitutional vio­
lation, as evidenced by fairly-drawn plans considered 
below which would have created three majority black 
districts (399 F. Supp. at 796 n.20). Thus the city’s 
proposed plan is only a partial remedy for the conceded 
constitutional violation of all at-large seats.

For these reasons, the city’s plan is totally inadequate 
as an equitable remedy for the violation found to exist.

CONCLUSION

The judgment of the Court of Appeals should be 
affirmed.

Respectfully submitted,

Charles A . Bane 
T hom as D. Barr 

Co-Chairmen 
A rmand  Derfner 
N orman Redlich 

Trustees

Frank  R. Parker 
T homas J. Ginger 

Staff Attorneys 
Lawyers ’ Committee for 

Civil Rights Under Law  
720 Milner Building 
210 S. Lamar Street 
Jackson, Mississippi 39201 
(601) 948-5400

R obert A . Murphy 
N orman J. Chachkin  
W illiam E. Caldwell 

Staff Attorneys 
Lawyers ’ Committee for 

Civil Rights Under Law  
733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Amicus CuriaeMarch 28, 1978