Beer v. United States – Oral Reargument – November 12, 1975

Media for Beer v. United States

Audio Transcription for Opinion Announcement – March 30, 1976 in Beer v. United States
Audio Transcription for Oral Argument – March 26, 1975 in Beer v. United States

Audio Transcription for Oral Reargument – November 12, 1975 in Beer v. United States

Warren E. Burger:

We will hear arguments next in Beer v. the United States.

Mr. Stoner, you may proceed whenever you are ready.

James R. Stoner:

Mr. Chief Justice and may it please the Court.

The case before the Court this time is a re-argument of the New Orleans redistricting case.

It involves the City of New Orleans.

The case involves geography, the case involves people.

The case involves the evolution of a political system whereby those people can express their views and be governed by their elected officials.

The city, as is — as is most cities in our country, has a Black population and a White population.

The case comes before the Court pursuant to the Voting Rights Act of 1965.

I refer the Court, the members of the Court to page 620 of the appendix and I call attention to a map of the City of New Orleans which shows the distribution of White and Black voters in the district — in the City of New Orleans.

Warren E. Burger:

Is there a map in our appendix here?

James R. Stoner:

It is, Your Honor.

It is in the appendix at page 620.

Byron R. White:

620?

James R. Stoner:

And it is a colored map showing the Black voters in red and the White voters in green, and I shall like to call the Court’s attention to the fact that this map very graphically shows the distribution of Black voters throughout the City of New Orleans and it shows the — very graphically the distribution of White voters throughout the City of New Orleans, and it shows that there are substantial Blacks — of Black voters in every section of the City of New Orleans.

Now, going back in time to May 1, 1954, and I might say that this was substantially before the Voting Rights Act of 1965 was enacted in the legislation.

It was substantially before the “one man-one vote rule” rule that was decided by this Court.

The City of New Orleans adapted a reorganization of its city government.

It adapted a City Charter which was called the Home Rule Charter and which adapted the mayor council type of government.

It established for the first time a mayor who was — had the primary — primarily responsibility of being the executive of the city and had established a City Council with the primary the legislative functions.

Potter Stewart:

That was in what year?

James R. Stoner:

That was on May 1, 1954.

The Home Rule City Charter established a City Council as the legislative body, consisting of two members who would be elected at large, that is, by the entire city, by the entire population of the City of New Orleans.

It also established five single-member districts so that the entire City Council, the legislative body consisted of seven members, two elected at large, five elected from individual districts within the city.

Now, the city charter, the Home Rule Charter, adapted in May 1, 1954 had another provision and that was an another important provision, and that important provision made it mandatory for the City Council to redistrict itself, that is, the five individual districts after every decennial census.

This was an attempt to — to require that each single-member district would be made up of, as closely as possible, an equal number of voters.

In 1961, following the first decennial census after the adaption of the Home Rule Charter, the City Council did in fact redistrict itself.

Now, at that time, there were no challenges to the redistricting and members were elected from the five individual districts and also, of course, from the two at large districts.

In 1969, the present City Council of the City of New Orleans was elected.

They took office on May 1970.

James R. Stoner:

Of course, 1970 was a census year and under the requirement of the City Charter, the City Council was required to redistrict the five districts following that census and prior to the next election which would have been held under normal schedules in the fall of 1973 with the elected officials to take office in May of 1974.

Potter Stewart:

These are four-year terms, are they not?

James R. Stoner:

They are four-year terms.

Potter Stewart:

Just as they had a grandfather clause enacted by this council?

James R. Stoner:

These are four-year terms for each member of the council, that is, at the at large members as well as the members from a single-member districts.

Now, in 1965 the Congress passed the Voting Rights Act of 1965, and its application to the change of the redistricting is not attached — is not attacked in this case.

Everyone admits that it was the City Council, having redistricted itself following the — that Act was required to submit it — submit the plan to the Attorney General.

Now, the City Council adopted a plan of redistricting.

It held public hearings, extensive public hearings.

During the extensive public hearings, it was evident that large segments of the community felt that the size of the City Council should be increased.

The council adopted a plan to increase the size of the City Council from seven members to eleven members, retaining two at large and electing — proposing to elect nine members from single-member districts.

This was submitted to the electorate, it was defeated.

Again, the City Council adapted another plan whereby the City Council would be enlarged from a seven-member council to a nine-member council, two to be elected at large, seven from single-member districts.

This plan was presented to the electorate, it was defeated.

Now, at that point, the City Council was faced with the mandatory requirement that it redistrict itself and that it redistrict itself in accordance with a seven-member council which was the law, it having submitted the — the eleven-member proposal and the nine-member proposal to the electorate having been — having been defeated.

At that time, the City Council adapted plan II, and plan II is the plan which is now before this Court.

It submitted the plan to the Attorney General for approval.

The Attorney General did not approve the plan and whereupon the City Council, believing that the plan was a reasonable and rational plan for redistricting itself, filed suit in the United States District Court for the District of Columbia asking for a declaratory judgment.

That court — that court denied the request for the declaratory judgment, and it is from that decision which we have appealed and which brings this case to the Court at the present time.

Now, may I refer the Court to page 621 of the appendix which shows a map of the City of New Orleans and the districts, various districts as they were established in 1961, and indeed, which — which is the present district plan.

Was it 621?

James R. Stoner:

621, Mr. Justice.

The City Charter required that the council redistrict itself.

I shall like to point out the geography.

I mentioned in my opening statement the geography is involved in this matter.

If you will look at the City of New Orleans, you will see that one of the predominant geographic features is the Mississippi River which flows through the city.

There is only one part of the city that is west of the Mississippi and that in the plan which I refer to, is a part identified (a) part, and that is — that section of the city is — is west of the Mississippi and is known as the Algiers section.

And it certainly is separated from the other part of (a) in 1961, is it not?

James R. Stoner:

It is, Your Honor.

Not connected it all?

James R. Stoner:

It is substantially separated.

Now, and this is an important factual feature in the consideration of plan II which is before the Court.

Let me say that there is substantial evidence in the record which shows that the citizens of Algiers were very interested in having a bridge across the Mississippi River.

They wanted some way to get, I should say another bridge, they wanted some way to get from the Western part of the city on the west side of the Mississippi to the central and main part of the city.

The many citizens across the river that is in the main section of the city were opposed to this and this was a very — very hotly debated issue.

Many people wanted the bridge to be somewhere — somewhere else in some other section of the city so that this factor was an important factor in considering the reapportionment, the redistricting of the city.

Referring to page 624, which is likewise a map of the city and which shows plan II, plan II which is the plan presented before the Court today.

You will note that in the plan that has been adapted, as plan II, the section in Algiers is connected with a contiguous area across the Mississippi River so that section — so that District C comprises the entire Algiers section of the city as well as some of the riverfront section of the city and up into the major downtown area of the city and in fact, running to Lake Pontchartrain which is at the very top of the — of the page.

Where is this recorded?

James R. Stoner:

On 624, that is plan II, namely the plan which is presently before the — before the Court.

Potter Stewart:

Right.

I take it that is the same really as that on 620?

James R. Stoner:

It is, Your Honor.

620, however has the color — the color added showing the distribution of Black and White voters in the city.

Now, the City Council adapted this plan taking into consideration numerous factors, not the least of which is the importance of the Mississippi River and the commerce and the industry that is along the river to the — to the City of New Orleans to the wellbeing of the people of the City of New Orleans.

And there is evidence in the record to show that council members believed that it was important that each section in the city, that is each district, should have a part of the geography of the riverfront in the section — in the district so that each member of the City Council would have the economic interest of the effect of the river on the population and on the life and industry and commerce of the city.

You will note their plan II does in fact contain a part of the river frontage in each of the five member districts.

We submit that the plan — the plan II is a reasonable plan, that it has been adapted taking into consideration reasonable rational reasons for the adaption of the plan and the division of the city in the districts as presented.

Now —

Division E, of course, is pretty short on the river compared to the others, is it not?

Does it make any difference or maybe there is a concentration of industry along D?

James R. Stoner:

I believe that the lower part of the city is substantially a dock area with shipping.

The river area after D is far less than all of the others?

James R. Stoner:

It would appear to be, yes sir.

Yes sir, it is.

Now, this was the plan that was presented to the United States District Court for the District of Columbia and this was the plan out of which has come the — the appeal which we have before the Court today.

The most important aspect of the error which the District Court made was its error in holding that the two at large seats on the City Council were affected by and must be included in any plan that is considered under the Voting Rights Act of 1965.

Now, we submit that this was patently wrong.

The City Charter creates two seats which — whose members are elected at large.

It creates the five districts also.

James R. Stoner:

There has been no change, no change in the two at large voting systems since its adaption in May 1, 1954.

Now, the Voting Rights Act applies to any changes that are made in voting procedures following, I believe the date is, November 1, 1964.

I gather from the supplemental briefs, the government agrees with you on this part?

James R. Stoner:

It does sir.

That was my understanding and I believe that is a change —

Well, I gather they argued it the last time, as I recall it, I think?

James R. Stoner:

I believe that is — that is correct.

So that we submit that the lower Court erred in holding that the two at large seats were changed.

We submit that there was in effect a — a two-segment voting procedure.

One was electing two council members at large and the other was electing five members from single-member districts divided in equal population numbers.

We submit that the at large seats are not in any way affected by this.

We submit that they are not affected by the Voting Rights Act of 1965 and that they should not be considered and the court erred and substantially erred in holding that the two at large seats were affected by the redistricting plan.

Now, I might point out that the two at large seats, in addition to their regular responsibilities as council members, have other responsibilities that are prescribed by the charter.

For instance, the chairmanship of the City Council rotates every four months between the two members at large.

Furthermore, the two members at large sit on various city — city agencies.

One is the reduction of debt, that is not the correct term, but it is described in — in our brief, the Stadium Commission, and so forth.

So that the two members at large have somewhat different responsibilities and — responsibilities that are over and above the responsibilities of all the other members of the — of the City Council.

So that in effect, the plan, and again I must — I cannot emphasize too strongly that this is the plan that was adapted back in 1954, long before the Voting Rights Act and long before any — any other attacks and that plan incidentally was never attacked by any voter to my knowledge, that claimed that there was something constitutionally wrong with the city charger adapted in 1954.

It had never been attacked.

Now, in this respect, this case is different than many other cases that have come before this Court under the Voting Rights Act of 1965.

This is not a case where a city has gone out in the next land.

It is not a city where — it is not a case where a city has changed its basic philosophy of electing its legislative unit or legislative body.

It is a case where there has been no change of any kind in the City Charter and in the establishment of the this City Council, except that following the mandatory requirement that the charter required, namely that every 10 years, after every decennial census it must redistrict itself so that each of the single-member districts are divided as nearly as possible into districts of equal population.

So, I submit to the Court that this case is different than other cases that have come before the Court.

It is not a case where there is any attempt or any blatant attempt or any apparent attempt or any so-called attempt to change or to — to the city form of government or to change an election procedure.

It is merely changing a district, the districts of the five individual districts, as is required by the forward-looking, and I submit it was a forward-looking City Charter that was adapted in 1954.

So, the case is unique and the case is different from other cases that have come before the Court in that respect and the only matter before the Court is whether or not the five-member plan, as encompassed in plan II, is a reasonable plan and a rational plan that does not violate the Voting Rights Act of 1965 and does not deny or abridge the right of any citizen to cast his vote in a municipal election.

Now, we submit that the Court below erred in its application of the — of the test.

We say that the proper test to be applied to this plan is whether or not it is a reasonable plan, whether or not it is a rational plan, whether or not it is based on reasonable considerations that a City Council should take into consideration when it adapts a plan of redistricting itself.

We have set forth the criteria, which have been used in our brief, which were used in adapting the plan.

James R. Stoner:

I might say parenthetically that traditionally, the districts of the various — the lines of the various districts have run in a north-south manner.

Now, this is not happenstance.

The City of New Orleans I guess, as we all know, is built basically on a swamp land and in recapturing the land, numerous canals were built to take away the excess water and so forth.

Now, these canals basically run in a north-south position — direction and they basically run from the Lake Pontchartrain area to the Mississippi River, to the Mississippi River.

If you will note the 1961 plan, the 1961 plan runs in a north-south direction.

Indeed, the old ward lines in the city ran in a north-south direction and I believe those wards were established in the late 1800s or early 1900s.

So that, traditionally, in the city, the main arteries of the city and I am talking canals and in later years, the — the streets, the predominant streets do run in a north-south area.

The plan has great basis in reasonableness.

It has followed the traditional lines of the city.

It has followed the traditional movement of the city.

It has taken into consideration the important economic interest of the Mississippi River and the commerce and — and jobs that it produces.

In addition to that, referring again to the population spread, I must point out that the Black population is spread throughout the city.

It is not a population that is concentrated in one area of the city as we all know, happens in many of our great urban areas.

Rather, the Black population is spread throughout the city and I submit that, indeed, the plan that is before the Court is a plan which has members of the council representing Black voters, representing White voters, representing the interests of the Mississippi River, representing the interest of the Lake Pontchartrain area.

It is a diversified interest, and I submit that in a plan of government, this is a strength.

It is the strength of the system and may, in fact, be the genius of the mayor council form of government, namely adapted by the City of New Orleans, namely it has the two at large seats which represent all of the people and are answerable to all of the people of the City of New Orleans.

In addition to that, it has single-member districts which are answerable to the people within that district, but at the same time, rather than being answerable only to one segment of the society and one segment of the community, they are answerable to a broad, a spread of interests, and therefore, it would appear that members of the council who are answerable to broad segments of the population that are answerable to broad economic interest, broad social interest will together provide a better government, a better form of government than will a number of members on a City Council, each of one of whom — each of one of whom is answerable to a very tight segment of the population and we submit that this is one of the great strengths of a plan that has been submitted and is — is before the Court.

Now, the lower Court made one other serious error that — that we feel is important and should be brought to the attention of the Court at this time in addition to those fully expressed in our brief and that is that the District Court has said that the burden of proof on the city is the burden of proving that the plan presented is the “only plan that is feasible.”

We submit that this is a proper — improper burden of proof.

We submit that in a declaratory judgment the preponderance of the evidence should be the test that no reasonable person can assume that in the myriad problems evolved in a redistricting that there can be only one plan.

We submit that the Court erred in that.

Mr. Chief Justice, may I reserve a few moments for rebuttal?

Warren E. Burger:

Very well, Mr. Stoner.

Mr. Wallace.

Lawrence G. Wallace:

Mr. Chief Justice and may it please the Court.

As we see the case, it presents two issues for review here.

The first is a very narrow issue, addressed in our supplemental brief, and that is whether the continued existence of the two at large seats was a matter requiring pre-clearance under Section 5 of the Voting Rights Act.

As we explained in our supplemental brief, we take a generous view of what constitutes the change that requires review under Section 5, but we do not — we do not take a view that stretches this far because there is no reconsideration or re-adaption of the two at large seats and their status in voting strength on the City Council, on the seven-member council, remains unchanged.

Byron R. White:

Mr. General, as long as the change does not — does not involve some harm to the Black voters as compared to what it was before that the attorney general has no power?

Lawrence G. Wallace:

That is not our standard, Mr. Justice.

Lawrence G. Wallace:

That seems to me to be a question going to the merits once Section 5 applies and it is also not our approach to the merits.

Byron R. White:

Well, suppose — suppose someone says to you, “well look, this plan is a — may be bad, but it is no worse than the prior plan.

We did not hurt anybody as compared to the prior plan.

There is no change in that regard.”

Does Section 5 apply still?

Lawrence G. Wallace:

Well, if there is a change in the procedure, if there is a redistricting, Section 5 applies and we think that is an erroneous substantive standard under Section 5 which I will — I will get to in a moment on the other aspect of the case.

We think the question of the two at large seats is an extremely narrow one here.

It was a question which was not necessary to the District Court’s judgment, but on reflection in this case, we think that this Court does have to say something addressed to it because otherwise it will govern what future plans can be cleared by the attorney general upon submission by New Orleans.

Warren E. Burger:

What provision of the Act do you rely on to support the District Court’s selecting as the standard the only feasible plan?

What provision of the Act generates that as the test?

Lawrence G. Wallace:

Well, I do not think that was based on any provision of the Act specifically.

Warren E. Burger:

Where do they get the authority, if not under the Act?

Lawrence G. Wallace:

I think that was the District Court’s approach to attempting to assess whether the plan has the purpose or would have the effect of abridging the right to vote, and one way to answer that is to look to the concerns that the city had in adapting its districting and see whether those concerns could have been met without the dilution of minority voting strength that resulted from the plan proposed.

And in this case, I think the Court quite probably looked to the alternatives that were reflected in the record to show that the city’s general objectives could be as well complied with without the effect on minority voting strength that occurred here.

And, that brings me to the principal issue in the case, the one discussed in our principal brief, and on that our starting point is the Court’s decision in Georgia against the United States holding that the Act does protect against dilution of minority voting strength through redistricting and by dilution, and there is some confusion in the testimony about this.

We do not believe “by dilution” we mean a comparison with how the minority voters were treated under the preceding redistricting.

We do not think either the Attorney General or the District Courts are in the business under this Act of measuring comparative abridgments of the right to vote.

The Act was designed to enforce the provisions of the Fifteenth Amendment, and the proper inquiry is whether there has been a reduction of voting strength in comparison with the way other members of the society are treated.

I do not think we could articulate it differently for purposes of Section 5 and this Court articulated it in White against Regester and Whitcomb against Chavis in a quotation which appears on page 15 of our principal brief.

So that even if there is an improvement, it still may violate the statute?

Lawrence G. Wallace:

If the effect or the purpose is to deny or abridge the right to vote on the basis of grace, there is a statutory violation, even though it is not as bad an abridgment as it was before.

That has always been our reading of the Act and our administration of the Act.

And even though it would survive any sort of constitutional attack?

Lawrence G. Wallace:

Well, there is a difference in the burden of proof under the Act and — and I would say, yes, substantively as well on the basis of the prophylactic intent expressed in the — in the Act.

William H. Rehnquist:

Mr. Wallace, what if the City Council sits down and says “this — this existing plan we have — that we have now that was not subject to the Voting Rights Act does seem to us a little bit unfair to Blacks, so we are going to give them a better break” and they decide to pass this, assume that this corresponds to that — that description.

You say then that even if it can be shown in the abstract that this plan has the purpose or effect, even though it is an improvement over their prior law that it is within the Act?

Lawrence G. Wallace:

That is our view of the Act because the Act was designed to enforce the Fifteenth Amendment, and when someone submits a proposal to — to us under the Act, we have to see whether it meets that statutory purpose.

William H. Rehnquist:

But do you not judge intent on the basis of the circumstances that existed at the time?

Lawrence G. Wallace:

It may be that they — that they can show that the purpose was not to deny or abridge the right to vote, but they also have to show that the effect is not to abridge or deny the right to vote.

William H. Rehnquist:

But as compared to the previous plan?

Lawrence G. Wallace:

We do not think it is as compared with the previous plan because that would put us and the District Court here in the position of — of approving, under the Act, plans that do not meet even the substantive standards of the Fifteenth Amendment and then would be subject to a suit under the Fifteenth Amendment where the Act was designed to have exactly the opposite effect, a prophylactic effect.

Byron R. White:

I do not understand why you say two at large seats are not implicated in this place or not reached by Section 5?

Lawrence G. Wallace:

Well, if — if they were reconsidered or re-adapted in any way, we would have said that they were a change, but they have existed in the same status since 1954 under a City Charter which does not provide for their re-adaption or reconsideration.

If the charter provides a separate provision that the five districts seats should be redistricted and that redistricting does not affect the status of the two at large seats on the seven-member council or the voting strength of the two at large seats, there has been no reconsideration or re-adaption of the two at large seats since the effect —

Byron R. White:

Does the Richmond case have any relevance to this case?

Lawrence G. Wallace:

Only marginally, Mr. Justice, because the annexation problem is a somewhat different one under the Act.

Byron R. White:

You confine Richmond to annexation and not providing some general standard as to — under section — for Section 5 cases?

Lawrence G. Wallace:

Well, I think it is consistent with the general standard that has been adapted in the Allen case and all the subsequent cases as it applies in particular to the annexation context.

Would you have the same view of the two at large seats, Mr. Wallace, if there had in fact been an annexation so that you have an enlargement of the suit?

Byron R. White:

Well I think, then, you would have quite a different case because they would be representing different people.

The annexation unquestionably would have been, I see.

Lawrence G. Wallace:

Yes, the at large seats would have a different electorate and I am quite sure we would take the position that here would be a change with respect to them, but here they have the same electorate.

Otherwise, there is a change every time someone dies and someone becomes 21 years old, but we do not interpret change in that fashion, or 18 years old.

I am a little out of date on that.

The question, it seems to us, and the question resolved correctly by the District Court is whether the standards adapted by this Court and developed by this Court in the context of multi-member districts in White v. Regester and Whitcomb v. Chavis, also apply to single-member districts.

And, I am talking about the standard that we have quoted on page 15 of our brief that the political process is not leading to nomination and election.

We are not evenly open to participation by the group in question that its members had less opportunity than did other residents in the district to participate in the political process and to elect legislators of their choice.

Potter Stewart:

That was deiced — that language is in the context of a Fourteenth Amendment issue and here we have a statutory issue which is related to any part of the constitution to the Fifteenth Amendment?

Lawrence G. Wallace:

That is correct, but if — if anything, the Fifteenth Amendment would be a fortiori case for protecting the voting strength of the minority voters affected.

Potter Stewart:

The issue here is a statutory issue, is it not?

Lawrence G. Wallace:

It is a statutory issue, Your Honor.

Potter Stewart:

Wholly?

Lawrence G. Wallace:

It is wholly a statutory issue, but as we argue, the statute implicates constitutional standards because it was designed to enforce the guarantee of the Fifteenth Amendment.

Potter Stewart:

But you told us and tell me if I am wrong in my understanding, Mr. Wallace, that even though the previous plan would have been valid as against either a Fourteenth or Fifteenth Amendment attack and even though the change is an improvement, vis-a-vis, giving minority races an opportunity to vote, nonetheless it might violate the statute?

Lawrence G. Wallace:

It might, although that would be a quite extreme case.

I thought that is what you told them?

Yes.

Lawrence G. Wallace:

Well, I do not remember the previous plan had been valid.

I did not remember that as being part of the hypothetical, but I agree with it, but I think it would be an extreme case.

Your answer is yes, is it not?

Lawrence G. Wallace:

My answer is yes.

That is what I thought.

Lawrence G. Wallace:

It could happen.

It might be merely for failure of proof in the — in the Section 5 proceeding, but it could happen.

I think that is unlikely and that is not what the administration of the Act is generally involved.

In fact, it may well be what this case is involves, is it not?

Lawrence G. Wallace:

Well, we think not and let me try to explain why in a minute or two.

Thurgood Marshall:

What reason for your declaring was then, it would have been done (Inaudible)?

Lawrence G. Wallace:

We — we were never asked to express a view on that, but I would have to say that it was not —

What — under constitution of the United States?

Lawrence G. Wallace:

No, in terms of what we would approve for pre-clearance purposes under Section 5.

But that only involves a change under the (Voice Overlap)?

Lawrence G. Wallace:

Yes, but the original plan was not, but it had been submitted to us a change from there to preexisting plan, it would have gotten the same reaction that plan I and plan II did.

You did not approve this one and if this was an improvement over the old one, obviously you would not have approved the old one if it had been a change over a predecessor, that says nothing?

Lawrence G. Wallace:

Well, let me try to say something which is that we think the standard for multi-member districts developed in these cases has to be the same standard that applies to single-member districts and we would illustrate that with a hypothetical that if, for example, New Orleans were changed to a City Council with seven members, all elected at large, that obviously would satisfy Fourteenth Amendment standards and yet there would be a substantial basis saying that the standards of White against Regester could be shown to have been violated by such a districting and yet, it seems to us the result would be the same that instead of the seven at large members, the city would divide it into seven districts so drawn and this would be theoretically possible although difficult, that each district contains exactly the same proportion of Black and White voters as the city at large, roughly 35% Black and 65% White.

It — it seems to us that you would have the same result in terms of dilution of minority voting strength which is what we read the White and Whitcomb cases to involve a standard for determining what constitutes dilution of minority voting strength that is to provide the guidance for assessing plans submitted under Section 5 of the Act.

Now, what was done here was nothing quite so crude as to draw the districts in a way that each one would reflect exactly the proportion of voting strength of the minority group in the city as a whole, but it approaches that because as you will notice in studying the plan and I am sorry my time is expiring here, in each of the districts except one, the Blacks are merged into a district in which a majority of Whites has been put into the district by extending the district in several cases from Lake Pontchartrain to the southern extremity of the city.

This was done to perpetuate a system of districting of the city which may have been quite understandable at a time when the Blacks spread throughout the middle of the city were not voting, were not registered, were not being allowed to register to vote and it was necessary to have some voters in each district.

So, the districts were elongated in that fashion, but it seems to us, as it did to the District Court, inappropriate to attempt to perpetuate it in the present context in light of the particular findings of the District Court which we elaborate in our brief, involving a prevalent pattern of block voting, difficulties in getting responsiveness from the City Council to the needs of the Black community, whether those problems involve employment in the city government, adequate park streets, recreational facilities in the Black neighborhoods, etcetera.

Warren E. Burger:

You are using Mr. Halpin’s time now.

Mr. Wallace.

Mr. Wallace, before you sit down may I ask you a question?

The District Court’s opinion is based primarily on mathematical deductions which in turn are based on total population and registered voters.

In note 19 of your brief, your original brief, you include figures also showing the percentage of population — of voting age and if the voting age percentage is substituted for total population percentage, the figures change, whether significantly or not I do not know, but they do change from 45% of total population being Negro to 39.8% being Negro.

I would think and, well, I will ask you, which do you think is more relevant, total population or voting age population?

Lawrence G. Wallace:

I think the voting age population is more relevant.

We had to extrapolate it from census figures because it was not in — in the record.

It was not dealt with in the District Court or in the submission of these districting plans and there is a considerable difference.

It comes out about halfway between the percentage of registered voters and the percentage of total population.

If you apply voting age percentage to the five seats, you come back with an entitlement to one seat.

It is almost two, but it is not quite two?

Lawrence G. Wallace:

If you apply it to the five seats?

Right.

Lawrence G. Wallace:

But we think that you have to take into account the fact that you are districting for five members of a seven-member council and that two members are —

Even though you have excluded the at large seats?

Lawrence G. Wallace:

But you — you look at — you look at the five districts for the purpose for which they are being districted and that is to elect five members of a seven-member council as to which the findings are two members are already the expectancy of the White vote.

You have to look at the political situation realistically, that is the teaching of all the Section 5 cases.

I believe my time has expired.

Warren E. Burger:

Mr. Halpin.

Stanley A. Halpin, Jr.:

Thank you.

Mr. Chief Justice and may it please the Court.

There were a number of questions posed by the Court to which our answer is a bit different and I would like to — to just move right into that.

I would like to point out to the Court that it is our position that the Section 5 standard involved here is considerably more stringent than the standard of White v. Regester or Whitcomb versus Chavis and that the inquiry, the proper inquiry of a court under Section 5 is considerable more limited.

Specifically, we point out, of course as we have in our brief, that Congress has just reenacted Section 5 for an additional seven years with a specific intention to have the Act cover redistricting for the 1980 census.

Congress is particularly concerned and I think the hearings and the testimony and so forth indicate that it is particularly concerned that in these areas where racial discrimination continues to be practiced, that the newly enfranchised Black voters will be effectively disenfranchised by a line-drawing districting which will divide up Black concentrations in these areas.

I think that, specifically this was the matter that Section 5 sought to remedy, in this type of case, a line-drawing redistricting case and the inquiry should be a narrow one and that is whether there is a significant concentration of Black voting strength and whether or not a districting plan divides up that population and spreads it out into predominantly White districts.

I think that is the inquiry and I think that is exactly what is before the Court in this case.

You have significant Black concentrations of populations in New Orleans.

In spite of what Mr. Stoner has suggested, you can walk from Jefferson Parish throughout the city for eight or ten miles to the St. Bernard Parish line and not see a White face along that band, that Black belt, that parallels the river in curved fashion throughout the city.

White people live in the very wealthy sections of town out by the lake and along St. Charles Avenue to the river.

The rest is left over for Blacks and these are heavy concentrations, and that plan devised by the City Council slices up that population like so many pieces of baloney and that is what Congress intended for here.

Now, to the inquiry as to how do you compare to previous plans or what do you compare to, I think Section 5 is — Congress is very explicit that there is one triggering device.

When you have a voting change, then Section 5 is triggered, is brought into effect and then the inquiry becomes as to whether or not the matter is — is racially discriminatory or not.

In redistricting cases, particularly because you have operation to the one man-one vote mandate, you do not have anything to go back to.

You do not have a previous plan that you can really compare to like you do in an annexation.

Byron R. White:

Did the Court of Appeals resolve the purpose question?

Stanley A. Halpin, Jr.:

No, sir, they did not.

They —

Byron R. White:

Solely on effect?

Stanley A. Halpin, Jr.:

Yes, sir.

Byron R. White:

What if we disagreed with them on effect?

Stanley A. Halpin, Jr.:

Well, Your Honor, if — if you disagree with them on effect, I think the only appropriate thing would be to have the Court of Appeals considering side to issue, the purpose and that is such a primarily a fact question.

Byron R. White:

Or re — I mean, it is a three-judge —

Stanley A. Halpin, Jr.:

Yes, sir, a three-judge court.

Byron R. White:

I am sorry.

Stanley A. Halpin, Jr.:

Yes, sir.

But we would submit that the City Council, however, was under a mandate when the first plan, plan I was rejected to correct the defects of that plan.

I think it was quite clear that the Justice Department, the Attorney General, in that instance said “the thing that you did wrong is you divided up Black population concentrations,” and in plan II they did not attempt to — to remedy this, but rather continued the division and I think this was the fault of the second plan as well as the first.

Warren E. Burger:

What do you say Congress, what provision of the Act authorizes the standard that was used by the court here, the only feasible plan?

Is there any such thing as the only feasible plan?

Stanley A. Halpin, Jr.:

No sir, of course there are always many plans and I do not think the standard is that this was the only feasible plan.

I think where feasibility comes in —

Warren E. Burger:

We can only go by what the court said it was used as a yard stick?

Stanley A. Halpin, Jr.:

Yes, sir.

I think the — the — well, I think where feasibility comes in, what the Act mandates is that where feasible, these lines not be drawn in such a way that they divide up the Black community and that is exactly what the Glickstein Memorandum said was the meaning of Section 5 which Senator Bai indicated was the proper statement of what the committee recommending renewal of the Act thought the Act to mean and that is that where feasible, a plan should — a line should not run right through the center of Black population concentrations.

I think it is quite clear on the feasibility issue that this is — that this was what Congress meant in this type of case.

The standard here that I believe is quite clear that Congress has mandated under Section 5 has some very practical feasible effects as well.

Some standards have been vaguely suggested.

I do not think the government has really suggested a clear standard as to what Section 5.

Mr. Stoner has suggested just a general rationality standard which I suggest would open up the floodgates to all sorts of rationalizations to justify any type of discriminatory plan.

The standard, I believe, that Congress provided, when feasible not dividing Black population communities would be — have certain administrative advantages in that the Court would not have to make the in-depth sort of inquiry, as was done in White versus Regester and so on, into some very sticky political and social issues as to whether Blacks are better off in a majority or a minority and the like, but rather the administration would rather simply would also provide fairly clear guidelines to city such as New Orleans when they are attempting to — to draw a plan which would not fall afoul of Section 5.

And, it of course also leaves this area properly, I think in Congress’ hands. Congress is setting up a limited remedy that is limited in time.

It is going to expire in 1982 to provide for this particular problem that it found to exist and that was the division of Black population by district lines.

It also was well aware that this was the way the Attorney General had been applying the Act when he was dealing with plans submitted to him which involved the question of line drawing gerrymandering, if you will.

Warren E. Burger:

Do I understand your argument to be that the obligation of the city is to so carve and arrange these districts as to produce the maximum concentrated vote of the minority?

Stanley A. Halpin, Jr.:

No, sir.

Our contention is that Section 5 is violated when lines are drawn to divide up Black population concentrations.

They other side of that, the remedy would be in future plans not to so divide up the Black population concentrations.

Now, that is going to have certain effects which to some extent are going to be predictable.

For instance, in New Orleans, if you do not divide up those Black concentrations, you are likely going to come out with 2 out of 5 or 3 out of 7 districts, but that is not what is compelled.

Stanley A. Halpin, Jr.:

That is just what is in reality likely to happen.

We do not think it is maximization and besides under — we are not talking about giving any preference at all, the likely result would — would merely be that Blacks are no longer entirely excluded from being majority in some districts.

Mr. Halpin, you — you have cited on page 5 of your supplemental brief, Senator Bai’s statement with reference to Richmond?

Stanley A. Halpin, Jr.:

Yes, sir.

In a sentence that Section 5 requires a redistricting plan and which a comparable portion of the seats as substantial Black majorities, does this suggest that on the remand here that the plan has to be one which comes up with, what is it, 39% of the seven seats?

Stanley A. Halpin, Jr.:

No, I think Richmond is — is what it is, some are just facts as an annexation case and —

It is totally a virtual decision.

It does not study the general principle which will be applicable?

Stanley A. Halpin, Jr.:

Well, I am certainly not asking this Court to rule that there would be a particular number.

That is not the standard that we are asking for.

We are asking for a standard that —

Try to affirm what are the standards of this three-judge court?

Stanley A. Halpin, Jr.:

Yes, sir, and I think that standard could be elucidated more clearly as a clear standard in these kinds of cases against dividing a Black concentration —

That goes beyond this original standard or the standard that was applied originally.

I would agree to that, as you know, I dissented from it?

Stanley A. Halpin, Jr.:

Yes, sir.

The standard that we are suggesting today?

Yes.

Stanley A. Halpin, Jr.:

No, I do not think it is going to be on at all.

It is more narrow, I think.

The particular facts of this case call for this court if it is going to apply this standard to affirm the District Court’s ruling.

If this was in a violation of Section 5, it would be very difficult to imagine one that is because in this case, the Black populations has just been divided and divided rather consistently.

It is very clear that there is a strong concentration of Black population in the city and this population has been divided up among many majority White districts.

Mr. Halpin, do you think it is an improvement over what existed before?

I take it, you — you feel if it is, it still is not enough?

Stanley A. Halpin, Jr.:

Yes, sir.

Over the 1961 redistricting plan?

No, sir.

I do not know if that is necessarily relevant, but in fact, it is not for a number of reasons and the figures in the tables might sort of lead to that conclusion, but they are misleading because in 1961, only 17% of the registered voters of New Orleans were Black.

In 1972, when we were — we were in District Court, something like 38% of the registered voters in the town are Black.

Stanley A. Halpin, Jr.:

So, it does not make a whole lot of difference perhaps in 1961 as to what happens because Blacks simply were not allowed to register and vote, but it does make a difference now that because of the operation of other provisions of the Voting Rights Act, Blacks have been allowed to register and vote in significant numbers and now they are divided up so that they are — they are still cut off from the political process and they still have no effective voice in what city does.

Thurgood Marshall:

Mr. Halpin, did you say in 1961, Negroes did not vote in New Orleans?

Stanley A. Halpin, Jr.:

In 1961, Your Honor, only 17% of the electorate was Black.

Thurgood Marshall:

They were not prevented?

Stanley A. Halpin, Jr.:

In 1961?

Thurgood Marshall:

Yes.

Stanley A. Halpin, Jr.:

There is indeed evidence that they were prevented from registering and voting by literacy test, the other devices in the Registrar’s Office.

There were many suits.

Only evidence in this Court shows that only after the effect of 1965 Voting Rights Act was there a demonstrable increase in Black registration.

Mr. Halpin, let me go back where I was.

Suppose the council were not under the ten-year obligation to redistrict and it just went ahead and redistricted it, hoping that this was an improvement over what happened a year ago.

Do I understand, or at least I think I do from Mr. Wallace’s position anyway, that this — if the effect still, even though an improvement, was to dilute voting strength, one or another group, it runs afoul with Section 5?

Stanley A. Halpin, Jr.:

Yes, sir, I think that is the conclusion.

I do not think that is going to happen very often.

What going to stop the City Council from just sitting flat and doing nothing and letting what was bad before continue?

Stanley A. Halpin, Jr.:

Well, assuming that there was no requirement to redistrict they could do that, but that is seldom a case and it was not the case in this instance.

In fact, the District Court of Louisiana has held that in fact they were malapportioned in violative of one man-one vote standard as is enjoined them from continuing that point.

So, that is not the case here.

The question I made, good intentions mean nothing?

Stanley A. Halpin, Jr.:

Well, good intentions are half-bound Your Honor.

There may well be good intentions, but if intentions are — are in dealing with such things, but even if the city council would — would be in good intention that the effect is bad, it violates the Act because that is a given of what the Act says.

Even though it is an improvement over what there was before?

Stanley A. Halpin, Jr.:

Even if it was in fact an improvement, but I — I do not concede that that will ever really happen, Your Honor.

Of course, re-adaption of the old districting would amount to another change under Section 5 like in Georgia versus United States.

I want to make it very clear that we hold that.

Thank you.

Warren E. Burger:

Mr. Stoner, you have four minutes left.

James R. Stoner:

Thank you, Mr. Chief Justice and may it please the Court.

There are two important issues that I shall like to respond to.

One, there has been a statement and that appears also in the briefs and it appears in the lower Court’s decision that the two at large seats automatically go to the White population.

James R. Stoner:

And, as basis for this, the lower Court refers to the fact that there never has been a Black elected to the City Council of the City of New Orleans.

Alright, I submit that number one, there has not been an election in the City of New Orleans since 1969.

Furthermore, the record clearly shows that Blacks have one substantial — elections to substantial positions in the City of New Orleans and I refer to the election of Judge Muriel who was elected to the Fourth Circuit Court of Appeals on a citywide basis in the City of New Orleans.

I refer to Judge Israel Augustine who is elected to the Criminal District Court in the entire City of New Orleans.

He is a Black.

I refer to Dr. Spears who is a Black educator and who was elected on a citywide basis to the New Orleans Parish School Board and indeed was elected as the President of that Board on a citywide basis.

In addition to that, since the trial of this case in the District Court, in November 1974 a man by the name of Edwin L. J. Lombard, a Black, was elected on a citywide basis to the Clerk of the Criminal District Court and he defeated a White incumbent of that office.

Now, I do not know what better evidence we — we can bring before any court to show that Blacks in the City of New Orleans can be elected to office on a citywide basis. Of course, it requires that the Black community nominate and bring forward responsible human beings.

When responsible human beings are — are brought forward, it appears that the City of New Orleans and the electorate of the City of New Orleans will, in fact, elect them to office.

So, we must take a issue and great issue with the statements of the lower court that Blacks cannot be elected in the City of New Orleans when running at large in the City of New Orleans and we do not concede that a Black cannot be elected to the at large seats in this case.

Potter Stewart:

Broadly what your telling us is directed to attacking the presumption or the hypothesis a premise of the District Court that voters of New Orleans’ vote as a Black racially?

James R. Stoner:

The court does allude to that.

Potter Stewart:

And you are say that is — experience shows that is fallacious?

James R. Stoner:

That is right.

Warren E. Burger:

As to the experience over the whole country it demonstrated that that is a curious theory with the — the number of Negroes elected mayors?

James R. Stoner:

I believe in the 1970s that is certainly is the case, and I would submit that this case must be decided on the facts as they exist in 1970 and the undue evidences on the facts of the — the voting situation in Louisiana and indeed in New Orleans years back — years back has no place in the decision of this Court.

This Court — this case should be decided on the facts as they existed in 1975.

My second point, and I — we were looking at maps earlier and I would like to call the Court’s attention to the map which appears at page 625 and I represent to the Court, this is the proposal that was made by the National Association of colored people for the City of New Orleans.

Now, we must agree that they have been a responsible Black organization and this is their proposal for the redistricting of the City of New Orleans.

You will note that the redistricting lines run north and south.

You will note that section — district A and district B are practically the same as that in plan II.

You will note that the most significant difference is that the Algiers section across the river is connected with section D rather than section C.

The plan submitted puts Algiers with district C.

We submit that this is a reasonable plan — that plan II follows the thinking of the Black community at the time that this plan was adapted and we further submit that we take issue with the east-west idea of redistricting which runs throughout the briefs of the government and also of the interveners.

Thank you, Your Honor.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.