Heggins v. City of Dallas, Tex.

469 F. Supp. 739

• Court: District Court, N.D. Texas
• Decided: February 22, 1979
• Docket: Civ. A. CA 3-79-118-E
• Status: Published

Opinions

MEMORANDUM OPINION AND ORDER

Plaintiffs bring this action for injunction under the Voting Rights Act of 1965.¹ A three-judge court was convened, and a hearing was held February 16, 1979. After carefully considering the evidence and the arguments of counsel, the Court has determined that the City of Dallas may not conduct city council elections until the city’s election plan has received the preclearance required by section 5 of the Voting Rights Act of 1965.²

I.

The Court has jurisdiction over the subject and the parties in this lawsuit, and venue is proper in the Northern District of Texas. 42 U.S.C. §§ 1973c and 1973j; Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1968).

The Supreme Court decisions clearly define our scope of review in this lawsuit. We may determine only whether the Dallas election plan is subject to the preclearance requirement of the Voting Rights Act. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1970); Allen v. State Board of Elections, supra. Our inquiry does not extend to the question of compliance with the other requisites of the Voting Rights Act; those issues are reserved to the Attorney General of the United States or the district court for the District of Columbia. 42 U.S.C. § 1973c; Perkins v. Matthews, supra.

II.

The eight/three election plan at issue was adopted as the result of the district court opinion in Lipscomb v. Wise, which held the city’s prior election plan unconstitutional.³ After the Supreme Court remanded Lipscomb, the city filed suit in the United States District Court for the District of Columbia requesting a declaration that the eight/three plan complies with the Voiing Rights Act.⁴ The United States has answered the city’s allegations in that court, and groups of black and Mexican-American Dallas voters have intervened. The District of Columbia court has not yet ruled and has not set the case for trial.

Section 5 of the Voting Rights Act of 1965 prohibits a State or political subdivision subject to section 4 of the Act from implementing a new election plan unless it has obtained a declaratory judgment from the District Court for the District of Columbia, or a ruling from the Attorney General of the United States, that the election plan “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . .” 42 U.S.C. § 1973c; United Jewish Organizations v. Carey, 430 U.S. 144, 147, 97 S.Ct. 996, 51 L.Ed.2d 229 (1976); accord, Dougherty County, Georgia, Board of Education v. White, - U.S. -, 99 S.Ct. 368, 371, 58 L.Ed.2d 269 (1978). Section 4 of the Act makes section 5 applicable to Texas and the City of Dallas. 42 U.S.C. § 1973b; 40 Fed.Reg. 43746 (1975); Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1976).

Plaintiffs contend that the city cannot lawfully conduct any city council elections until the District of Columbia court preclears the entire plan. The city concedes that it cannot hold elections for the eight single-member places without section 5 preclearance. It contends, however, that no preclearance is necessary for the three at-large places, and that it may, therefore, proceed to hold elections for those three seats. Prior to the decision in Lipscomb v. Wise, Dallas elected all of its eleven council members to at-large places. The city contends that the current at-large places are unchanged from three at-large places that were in effect before Lipscomb v. Wise and before November 1, 1972, and that, therefore, these three places are not subject to the Voting Rights Act.⁵

We are unable to agree with the city’s contention. Section 5 of the Voting Rights Act requires the city to obtain preclearance whenever it seeks “to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, . . . ” 42 U.S.C. § 1973c. The Supreme Court has consistently held that this language from the Act is to be given the broadest possible scope. Perkins v. Matthews, supra; Allen v. State Board of Elections, supra. Even changes seemingly as minor as moving a polling place are to be covered by the Act. Agreement with the city would require that we give section 5 less than its broadest possible scope, and this we decline to do.

Rather than viewing its election plan as an entity and comparing the entire election plan in effect in 1972 with the entire eight/three plan under scrutiny here, the city argues for an analysis that bifurcates the examination. It would have us test the at-large places apart from the remainder of the election plans. Because the constituency for each at-large place remains constant in both plans, the city contends that there has not occurred the sort of change contemplated by the Act.

We have concluded that the city’s analysis takes too narrow a view of the problem. Although the constituencies for the at-large places have remained constant, the influence on an election of the votes cast by each Dallas voter has been altered drastically. Under the prior plan, each voter cast eleven votes and participated in electing all eleven council members; under the current plan, each voter is allowed to participate in the election of only four council members. Changes like this are the kind that the Supreme Court and Congress intended to come within the coverage of the Act.

The eight/three plan has been treated as a single unit throughout most of its existence, and only recently has the city attempted to bifurcate the plan. In Lipscomb v. Wise, the district court held the entire eleven seat plan to be unconstitutional; places 9, 10, and 11 were never treated apart from the other eight at-large places. The city then proposed and ultimately adopted the entire eight/three plan; again no attempt was made at bifurcation.

Accordingly, the Court finds that the eight/three election plan is a voting qualification or prerequisite to voting, or a standard, practice, or procedure with respect to voting different from that in force or in effect on November 1, 1972. The Court finds that the eight/three election plan is subject to the Voting Rights Act, and further finds that the city may not lawfully hold an election pursuant to the eight/three plan until it obtains the preclearance required by section 5 of the Act.

III.

There is confusion in the case law about the precise remedy to be accorded to plaintiffs in a case of this nature. Plaintiffs have requested that we enjoin the city from conducting any election until the city has obtained section 5 preclearance of its election plan. The Supreme Court cases indicate that an injunction against elections pending preclearance is proper. Allen v. State Board of Elections, supra; Perkins v. Matthews, supra. Additionally, the lower courts have enjoined elections when they have found an election practice to be covered by the Act. See Matthews v. Leflore County Board of Election Commissioners, 450 F.Supp. 765 (N.D.Miss.1978); Horry County v. United States, 449 F.Supp. 990 (D.D.C.1978); White v. Dougherty County Board of Education, 431 F.Supp. 919 (M.D.Ga.1977), aff’d, - U.S. -, 99 S.Ct. 368, 58 L.Ed.2d 269 (1978); Pitts v. Carter, 380 F.Supp. 4 (N.D.Ga.1974); Beer v. United States, 374 F.Supp. 357 (D.D.C.1974). Other courts have either failed to enjoin or refused to enjoin elections despite a finding of coverage under the Act. See Oden v. Brittain, 396 U.S. 1210, 90 S.Ct. 4, 24 L.Ed.2d 32 (Black, J., 1969); United States v. County Commission, Hale County, Alabama, 425 F.Supp. 433 (S.D.Ala.1976) judg’t aff’d 430 U.S. 924, 97 S.Ct. 1540, 51 L.Ed.2d 768; Moore v. Leflore County Board of Election Commissioners, 351 F.Supp. 848 (N.D.Miss.1971); Wilson v. North Carolina State Board of Elections, 317 F.Supp. 1299 (M.D.N.C.1970).

We have examined this apparent division of authority and conclude that the courts which have chosen to not enjoin elections have grounded their decisions in equitable considerations having to do primarily with the timing of the plaintiff’s claim. If the plaintiffs in this lawsuit had delayed seeking relief so that an injunction would impose an inequitable burden on the city, the voters, or the candidates, we would not hesitate to refuse to enjoin the election. This, however, is not the case. The plaintiffs filed this action on February 1, 1979, nearly four weeks before the deadline for candidates to file their nominating petitions. The election is scheduled for April 7, 1979. This is clearly not an election-eve lawsuit. Candidates have not yet expended time and money in their campaigns; indeed, it is likely that even at this date many potential candidates have only begun to explore the possibility of running for office.

It seems to us eminently more equitable to all concerned to delay the election rather than to allow an election in direct contravention of the Voting Rights Act. Although the court in Lipscomb tested and approved the eight/three plan according to constitutional standards, approval under the Voting Rights Act is an independent matter. We feel certain that the District of Columbia court will proceed with all due speed toward resolution of the claims before it, and pending that resolution, we feel that the status quo should be maintained.⁶

We, therefore, have determined that the city should be enjoined from conducting city council elections until it can do so in compliance with section 5 of the Voting Rights Act. While we recognize that an injunction is a harsh measure to be utilized with care, we are of the opinion that Congress and the Supreme Court intended injunctions against elections to be the normal remedy afforded against defendants who attempt to hold elections before obtaining preclearance. The threat and the pressure of an injunction provides a strong incentive for compliance with the Act. The policy considerations associated with the Act require that injunctive relief be granted unless the record reveals facts which indicate that the injunction would work an inequitable burden upon the city, its voters, or the candidates for election.

ORDER

In accordance with the above Memorandum Opinion:

1. The City of Dallas is enjoined from holding city council elections until it has obtained preclearance of an election plan from the Attorney General of the United States or of the District Court for the District of Columbia as required by section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c.

2. The injunction specified in number 1 above shall dissolve upon a determination by the Attorney General of the United States or the District Court for the District of Columbia that an election plan of the City of Dallas complies with the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq.

3. The City of Dallas shall forthwith submit places 9, 10, and 11 of its eight/three plan to the Attorney General of the United States or to the District Court for the District of Columbia for preclearance pursuant to section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c.

4. The Dallas City Council election scheduled for April 7, 1979, is postponed pending further order of this Court. The February 26, 1979, deadline for the filing of nominating petitions is also postponed pending further order of this Court. All nominating petitions for candidacy in the April 7, 1979, election filed prior to February 26, 1979, shall be preserved by the city pending further order of this Court.

5. The current members of the Dallas City Council shall continue in office, notwithstanding the expiration of their elected terms, until such time as their successors have been lawfully elected. Vacancies in the membership of the council due to death, resignation, or other causes shall be filled in the manner prescribed by law. While serving under this Order the members of the Dallas City Council shall be vested with all the power, authority, and duties accorded by law.

6. This Court shall retain jurisdiction in this matter for the purpose of rescheduling Dallas City Council elections when the city obtains preclearance of its election plan.

It is so ORDERED.

Signed this 20 day of February, 1979.

1 . 42 U.S.C. § 1973 et seq.

2 . 42 U.S.C. § 1973c provides:

[W]henever a [covered] State or political subdivision . . . shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention .of the guarantees set forth in section 4(f)(2), of this title and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 of the United States Code and any appeal shall lie to the Supreme Court.

3 . 399 F.Supp. 782 (N.D.Tex.1975), rev’d, 551 F.2d 1043 (5th Cir. 1977), rev’d and remanded to court of appeals, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978), remanded to district court, 583 F.2d 212 (5th Cir. 1978). In Lipscomb v. Wise, the Supreme Court determined that the city’s eight/three plan is a legislative plan and remanded the case for consideration of the effect of the Voting Rights Act which had been made applicable to Texas while the appeal was pending. The court of appeals remanded Lipscomb to the district court stating that the parties had “consented to the entry of an order to the effect that section 5 of the Voting Rights Act did apply to the legislative enactments of the City of Dallas . . . Lipscomb v. Wise, 583 F.2d 212 (5th Cir. 1978).

4 . City of Dallas v. United States, No. CA 78-1666 (D.D.C., filed Sept. 5, 1978).

5 . 42 U.S.C. § 1973c, supra footnote 4.

6 . We feel constrained to comment about the precise limits of our decision. We hold only that the city’s eight/three plan is subject to the requirements of the Voting Rights Act. We are without jurisdiction to determine whether the city’s plan denies or abridges the right to vote in contravention of the Voting Rights Act, and we have purposefully ignored those issues. This decision determines coverage only and is not to be taken as an indication, inferential or otherwise, that the city’s plan does not meet the requirements of the Voting Rights Act.