Dusch v. Davis

PETITIONER:Frank A. Dusch
RESPONDENT:J. E. Clayton Davis
LOCATION:U.S. District Court for the Southern District of California, Central Division

DOCKET NO.: 724
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 387 US 112 (1967)
ARGUED: Apr 18, 1967
DECIDED: May 22, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – April 18, 1967 in Dusch v. Davis

Earl Warren:

Number 724, Frank A. Dusch et al, Appellants, versus J.E. Clayton Davis et al.

Mr. Frazier.

Harry Frazier, III:

Mr. Chief Justice, may it please the Court.

This is the case involving the City Council of the City of Virginia Beach, Virginia wherein the appellants are the members of the City Council.

The appellees are voters within the city.

This case presents three questions, two of which we think can be disposed of promptly so that we may concentrate primarily on the third one.

The first question, and this was put to us by the Court, was whether a three-judge court should have been convened below to hear this case in the first instance.

The plan of representation with which we are concerned here today applies only to the City of Virginia Beach, Virginia.

It was adopted by a special Act of the legislature.

There is none like it in the city.

The Solicitor General agrees with us that we are properly before the Court because under prior decisions of this Court, a city charter of this nature does not present the matter of statewide interest, the state statute for the purpose of a three-judge jurisdiction.

We understand that the appellees do not contest position.

And while we understand of course that jurisdiction of this Court cannot be conferred by consent, we feel the matter is now so clear that jurisdiction is proper, that unless the Court wishes me to pursue it, we think we can accomplish more by moving on.

The second question presented on this appeal is whether one man, one vote applies below the level of state legislatures.

We believe the Court should not extend this principle for the reason stated in our brief.

The question has been fully argued in the three proceeding cases.

We have nothing new to add to that argument.

In the brief time available, we wished to cover new arguments, matters that are peculiar to this case and are not involved in the other case.

Our principal argument therefore is that, while we do not believe the Seventh — the one man, one vote doctrine should be extended to local government even if it is extended to local government, the Seven-Four Plan of the City of Virginia Beach is a valid plan of representation.

This brings us to the third and vital question in our case.

We say at the outset, Seven-Four Plan does accord with the Reynolds case and the mandate of one man, one vote.

Now what is the Seven-Four Plan?

The Solicitor General indicated to you quite properly that this is a plan of at large election of seven councilmen for the City of Virginia Beach.

Four are elected without residential requirement.

They may reside anywhere in the city.

The seven others are elected with a residential requirement, one being required to reside in each of seven boroughs of the city.

The seven boroughs are of disproportionate population ranging from — according to the 1960 census, 700 and some persons in the smallest to approximately 29,000 persons in the largest.

Now, we say the plan affords every voter in the city an opportunity to vote for 11 councilman, all of the council.

The residential requirement does not destroy the fact that each councilman is the city’s councilman and not a councilman merely of the borough in which he resides.

William J. Brennan, Jr.:

How was that set up on the ballot?

Harry Frazier, III:

It is set up on the ballot by having the borough election for a resident councilman from Blackwater.

And the person who has declared or persons who have declared from Blackwater appear with a box opposite their name and you vote for one.

William J. Brennan, Jr.:

And everyone in the city votes for one, is that it?

Harry Frazier, III:

That is correct.

And the same for each of the seven boroughs that large seats without residential requirement, you vote for four out of the number that appear.

But the important point in this plan is that the residential feature does not destroy the crucial fact that these people represent all of the city.

And we feel that the Court had recognized this already.

Byron R. White:

Oh, what’s the purpose of the residential requirement then?

Harry Frazier, III:

The purpose of the residential requirement is to guarantee that the view points of all sections of an amazingly complex city are going to be presented to its governing body.

Byron R. White:

What’s on the assumption then that people who lived in a certain place are going to have a certain point of view or going — or suppose to represent the area from which — in which they reside?

Harry Frazier, III:

I don’t think it can be stated quite that way Mr. Justice White.

It’s on the assumption that they will be familiar with the problems of the area in which they reside.

They still represent the city as a whole.

And as Mr. Justice Brennan pointed out for this Court in Fortson against Dorsey, the fact that he resides in any given portion of the election district does not make him any — the less the representative of the entire district, whether it’ll be a city as in this case or a county or a state senatorial district as in that case.

The Court recognizes the crucial fact that the residential requirement does not destroy his citywide standing.

William J. Brennan, Jr.:

He’s still responsible in other words for the citywide election and not just to a borough election.

Harry Frazier, III:

That is correct.

And the test is that you first determine what the geographical unit is that you’re talking about, Virginia Beach City, and then to determine whether your treating everybody within the City of Virginia Beach the same way.

Now this is the — if you will, the extreme statement of our view.

We believe it to be true.

And we believe that this alone would justify the Seven-Four Plan if the Court extends the principle to local governments.

Yet there is another, and in our view, equally as rational reason for sustaining the plan although it does require considerably more discussion and elaboration.

That is that the plan of Seven-Four representation can be justified rationally for this City of Virginia Beach because of the peculiar circumstances that exist here.

And this requires me to come now to the facts of the case and I only hope that I have not kept them from you too long.

In the first place, I want to answer for the case here a point that Mr. Justice Fortas had raised in the other cases.

There has been some suggestion that the Court may provide a standard or a rule based on the degree of legislative power, the extent of power that the governing body in question had.

That question — that solution is of no significance here because the Council of the City of Virginia Beach exercises all local power.

There is no overlapping jurisdiction, there is no town, there is no county, any power exercised at the local level is exercised by this City Council.

So we think it’s important for the Court to understand the different posture of this case (Voice Overlap) —

Potter Stewart:

(Inaudible) the mayor or rather executive officer?

Harry Frazier, III:

I beg your pardon?

Potter Stewart:

Who was the mayor or other executive officer?

Harry Frazier, III:

The mayor is the president —

Potter Stewart:

Of the Council —

Harry Frazier, III:

— of the City Council.

Potter Stewart:

I see.

Harry Frazier, III:

The —

Potter Stewart:

A city manager or anything like that?

Harry Frazier, III:

A city manager who is appointed to serve at the pleasure —

Potter Stewart:

Pleasure of the council.

Harry Frazier, III:

— of the City Council.

That is correct.

Potter Stewart:

And he is — he runs as the chief administrative officer, the day-to-day executive —

Harry Frazier, III:

That is correct.

Potter Stewart:

— operations of the city.

Harry Frazier, III:

Now, what about the City of Virginia Beach?

Earl Warren:

What is the stature of the towns that are incorporated in the county, have they any?

Harry Frazier, III:

Now —

Earl Warren:

Any function at all?

Harry Frazier, III:

That’s been in mind Your Honor.

We have neither county nor town involved here, all we have is city.

There are no towns within the City of Virginia Beach, there are no counties within it, or of which the city is a part.

The City of Virginia Beach is a completely independent political subdivision deriving all of its powers directly from the constitution and statutes to the Commonwealth of Virginia.

So this is why we —

Earl Warren:

Yes.

Harry Frazier, III:

— are quite different in our system of local government.

Earl Warren:

Well, how do you subdivide the city into these districts then?

Harry Frazier, III:

Well, there are seven boroughs, the boundaries of which are historical more than anything else.

Now that brings us to how this City of Virginia Beach got to be the City of Virginia Beach.

But first, let’s see where it is and what it is.

Harry Frazier, III:

This is a city of some 300 square miles.

It has — in the 1960 census about 85,000 people.

The 1964 estimated population is about 118,000 people and less than a year ago, an estimated population of 135,000 people.

It lies directly south of the City of Norfolk.

It is bounded on the east by the Atlantic Ocean, on the side by the State of North Carolina, on the west by an adjoining city.

It is a large city, 300 square miles.

It is made up of the bedroom communities adjacent to the City of Norfolk where you have dense suburban type development.

People who are living and working in the City of Norfolk and in adjoining military installations, and on the southern, and in particular, you have very sparsely settled agricultural land, you have game preserves, some of the best duck hunting in the city — in the State of Virginia, is within the City of Virginia Beach.

Earl Warren:

What’s size did you say it is?

Harry Frazier, III:

300 square miles.

It is an exceptionally large geographical area and an exceptionally diverse area.

The half of the city is devoted to rural pursuits, agriculture being the principal industry.

A great deal of the rest of it is purely suburban type developments, rows of houses —

William J. Brennan, Jr.:

What are the dimensions?

Something like 10 by 30 or what?

Harry Frazier, III:

15 by 20.

William J. Brennan, Jr.:

15 by 20, alright.

Harry Frazier, III:

That’s correct.

With large water areas in it, it is a truly remarkable and unique city.

Now this city is a result of a consolidation of a little city, former City of Virginia Beach, which was nothing but a seaside resort of about 8000 people and Princess Anne County which included the same amalgamation, conglomeration of development.

The residential suburbs of the Norfolk area and the farming land, a consolidation of a small city and a large county, a county large in both population and in area.

This consolidation took place pursuant to a plan and a referendum which passed in both the city and the county.

The initial plan was to consolidate the governing bodies of a former city and a former county into one.

That was a five-man City Council from the former City of Virginia Beach, they were elected at large, and the six-man board of supervisors from former Princess Anne County elected on a district basis and the districts were disproportionate in population.

The — this you see is the essence of the seven boroughs we have now.

They are the same as the magisterial districts in the former county plus the old City of Virginia Beach.

The consolidation took place according to state law.

And as Mr. Justice Stewart observed yesterday, one of the problems when you consolidate people is to guarantee to minority groups.

Some say about what their government is.

So the initial system preserved to the City of Virginia Beach within 8000 people, five men on an eleven-man council.

Harry Frazier, III:

But this has been changed because in the challenge of the system, the District Court held the system to be unconstitutional.

And although the order — owning it unconstitutional was not a final appealable order and the matter was deferred until the next General Assembly of Virginia because the City Council had already before its plan had been declared unconstitutional agreed to change it.

The plan was changed.

The Seven-Four Plan evolved and the new plan was then challenged bringing us into the present phase of this proceeding.

Now what —

Earl Warren:

What ground was it declared unconstitutional?

Harry Frazier, III:

On the ground that one man, one vote applies at local levels of government.

And that the plan — or the former plan clearly did not comply with that mandate.

Earl Warren:

What year was that?

Harry Frazier, III:

In 1965.

Earl Warren:

1965, oh, I haven’t thought you went back a little farther.

Potter Stewart:

And the former plan first authorized five from the old City of Virginia Beach?

Harry Frazier, III:

Right.

Potter Stewart:

And the present one authorizes four?

Harry Frazier, III:

No sir.

Potter Stewart:

Okay.

Harry Frazier, III:

The present one authorizes one from the old City of Virginia Beach, elected at large.

Potter Stewart:

Yes.

Harry Frazier, III:

One from each of the six —

Potter Stewart:

Yes.

Harry Frazier, III:

— former magisterial districts elected at large —

Potter Stewart:

Yes.

Harry Frazier, III:

And four elected without any residential requirements at all.

Potter Stewart:

Right.

Harry Frazier, III:

They could come from —

Potter Stewart:

Yes.

That’s right.

Harry Frazier, III:

— the old City of Virginia Beach.

Potter Stewart:

Right.

Harry Frazier, III:

Now we come to this —

Potter Stewart:

But the old plan, I suppose this isn’t important but I — the old plan like the present one, did it provide that all of the people wherever they live were to be elected by all of the voters (Voice Overlap)?

Harry Frazier, III:

No sir —

Potter Stewart:

I see.

Harry Frazier, III:

It was a strict —

Potter Stewart:

That was the basic difference.

Harry Frazier, III:

— borough award system.

That was the basic difference, yes sir.

Now, why was the Seven-Four Plan selected rather that some other plan?

The reason is that the Seven-Four Plan was felt to be the fairest for the city as a whole.

William J. Brennan, Jr.:

And when was that adopted?

Harry Frazier, III:

In 1966.

William J. Brennan, Jr.:

This was after the courts reversal?

Harry Frazier, III:

Yes, Your Honor.

The city first considered few at large elections.

What would happen?

Probably they would be elected from up next to Norfolk where the majority of the people reside.

Any — who were not elected there were elected because of the wish of the majority that they not dominate the whole show.

But they had a numerical power to elect all of them from the heavily populated areas.

This is the basic fallacy in any at large system.

It eliminates or it provide that a — that rights and views of the minority will be totally eliminated.

And this is why it was not rejected here.

William J. Brennan, Jr.:

Mr. Frazier, may I ask in that — anticipate — in fact, hasn’t there been an election of the Seven-Four Plan?

Harry Frazier, III:

Yes, Your Honor.

William J. Brennan, Jr.:

And before at large, has it worked out that they’ve been elected from the heavily populated areas?

Harry Frazier, III:

I believe three of them were.

I’m not positive.

It was an unusual election because there were — there was only one contested seat — one contested of the eleven seats that had five people ran before at large.

No.

I beg your pardon.

The only contest was in one of the borough, one of the borough seats, so the four — before the rather large without residential requirement Your Honor posed.

Harry Frazier, III:

Now, the second amount of that was considered was — ward elections of boroughs of substantially equal population?

How would that work in a city like Virginia Beach which is growing as fast as this city is which grew 40% in four years.

Two of its boroughs have grew 60% in four years.

How do you apportion a city that’s undergoing demographic changes of this magnitude?

You would be out of date before you got started.

And it was considered to be an impractical plan.

As well as the fact that in order to get a borough with the minimum number of population, you’d have one borough representing half of the geographical area of the city to begin with.

So this plan was considered not to be in the best interest of the City of Virginia Beach.

Now the Seven-Four Plan was designed to take the best elements of both of these systems and to get rid of the objections of appellants.

The need was to look out for the smaller areas, the agricultural interest of this diverse city while giving everyone a free expression in the selection of these representatives.

Abe Fortas:

Then, why wouldn’t that same argument apply to the state governments, in the state governments?

Harry Frazier, III:

Because in your state governments you are already looking at — for the — the geography does that.

Abe Fortas:

No, it doesn’t.

Harry Frazier, III:

Because —

Abe Fortas:

There may be some states in which there is a majority of the people are concentrated in one or two urban areas and then you’ve got lots of people in quite different types of enterprises, different sort — different areas in the state far different in their essential characteristics.

Harry Frazier, III:

Well, as I see the districting for state legislatures, however you do it, you’re going to have one district that has — that gives an opportunity to represent agricultural interest because that’s where they are.

Now when you get into a city, you wouldn’t have at large election of a state legislature, I don’t know any that does and —

Potter Stewart:

Well, this would be though the equivalent if you’re going to pursue that analogy, you would have to assume that the state legislature was wanting to elect it at large.

And take for example Illinois, the analogy would be a seven-member legislature, eleven-member legislature in Illinois, as one from Chicago, five from the other — five or six from the other living in the other places, and for at large and all elected by the electorate of the state at large that would be the system, wouldn’t it?

Harry Frazier, III:

That’s correct.

Now the important point here is we don’t have do decide whether as an abstract principle.

This is proper or improper.

Our point is that it makes sense, it can be justified on a rational basis for the City of Virginia Beach which does not mean that it could be justified in the State of Illinois, in the City of Richmond or the City of Pasadena.

For these problems of this city, it provides an effective method of taking care of the needs of the whole.

Now, the majority always controls.

Three of these boroughs are fairly heavily populated or densely populated, four — three are sparsely populated and one is sort of in the middle.

Under any plan, the majority can always control the Council of the City of Virginia Beach.

This is no case such as was suggested in Alabama where there was a rural stranglehold.

It cannot happen here, so that this is an important element in our plan, a rational justification of this city.

There is no evasive scheme to avoid reapportionment because they had done their reapportionment.

Harry Frazier, III:

There is no attempt to perpetuate people in office because any man can be thrown out of office by the will of the majority.

There is no possible way that discrimination against any racial groups (Inaudible) involved here and this has been a problem in some reapportionment cases.

Hugo L. Black:

Do you know any of the other states that have (Inaudible)?

Harry Frazier, III:

No, I do not, nor do I know of any city that cries for the protection this city affords.

Virginia Beach is, in our view, unique and it requires a different type of treatment than other city —

William J. Brennan, Jr.:

Well, I gather your basic position however is that the Seven-Four Plan, acquiring as it does at large election of all eleven even though seven come from (Inaudible) satisfies the one man, one vote standing?

Harry Frazier, III:

That is correct.

However, even if the Court will not go along with us on that ground, the Court can and should sustain this plan on the rationality, the eminent fairness of the plan as it relates to the city which it is designed to serve.

Abe Fortas:

Then I suppose that there might be some difficulty.

If we approve this plan, there might be some difficulty in rejecting the state plan that one were — brought up here in which the state said that members of the upper house would be elected at large provided that they have to be residents of the various districts.

Harry Frazier, III:

Well —

Abe Fortas:

Because that would present an analogy to your problem.

And now, I know that you want us to consider the Virginia Beach, but our problem is a little more complex than that?

Harry Frazier, III:

Well, you have brought me to my final aspect of this argument.

And that is this, I think the Court should recognize that greater flexibility should be allowed local government in dealing with local problems.

That is necessary in providing to the needs of state legislatures.

The Court of Appeals in this case erred by saying that Reynolds prohibited the consideration of anything else than population.

We think this is fundamentally wrong if you’re going to have effective local government.

The Solicitor General started of on that attack, but backed down on the questioning from the Court and indicated that well, may be there is a reason or room to vary system.

William J. Brennan, Jr.:

Well, is this — this is — are you suggesting Mr. Frazier this would require an analysis of each of the 20,000 units by this Court?

Harry Frazier, III:

Of course, that’s the basic hurdle you’ve got to get over if you’re going to decide one man, one vote does apply down here in local government.

William J. Brennan, Jr.:

No, not unless you’re going to say.

I suggest that that there are elements that you urge in this, of uniqueness in each case which we ought to consider?

Harry Frazier, III:

This is true.

What may be satisfactory in one case may be totally unsatisfactory on other.

William J. Brennan, Jr.:

Well, that approach certainly would require us to look at each in the 20,000 units?

Harry Frazier, III:

Well, I don’t think it requires this Court to do it.

I think it can say that if local government requires one man, one vote principles, then we have got to look at each system separately.

Byron R. White:

Are you suggesting that perhaps in Virginia Beach, you couldn’t have had a single legislative power over this extensive territory if the one man, one vote principle had been known in advance?

Or in the — would the imposition of one man, one vote have defeated the referendum to —

Harry Frazier, III:

Yes sir.

Byron R. White:

— consolidate?

Harry Frazier, III:

No question in my mind about that because the record shows that the guarantee to the former city of Virginia Beach with its 8000 people of a degree of identity and representation in substance on the City Council was an essential element and without that, they never would have voted for this plan and no question about that.

It was the other fellows, the county boys who had the most to gain and the reason for that is that, one, not the only but one of the reasons for this consolidation to begin with was the City of Norfolk was threatening to dip down into Princess Anne County and take substantial areas in Virginia, an extension as in — as unlike most other states, is purely a judicial process in which the people have no referendum rights or any other rights to veto the plan.

They can come in and scream about it but it’s a judicial determination so that Mr. Justice White, you’re entirely correct in pointing out an essential element of the original plan.

Earl Warren:

Would you mind telling us what the special situation the Virginia Beach is as compared to other cities that amalgamate some smaller communities and some rural area into one larger city?

What is peculiar about Virginia City that should cause us to treat this different from any fairly large city that comes together by way of consolidation of a lot of territory and communities.

Harry Frazier, III:

Well, I think there are two aspects of that question.

First of all, the Virginia City is primarily an urban area to find vast areas of farmland as is true in Virginia Beach or the broad or the large number of square miles as is true in Virginia Beach is not the usual situation that prevails in Virginia cities.

The city government — the city area is usually your densely built-up areas and you step over an imaginary line and you’re in a county and sometimes you don’t know the difference.

There are a couple of exemptions in Virginia, there are two other cities of which I am aware that also have substantial rural areas where they do follow at large elections.

Yet in those cities, the magnitude of the problem is not as great as it is here and those citizens elected — chose to have at large elections.

Here, the feeling was that the best interest of this city required the guarantee of a voice from the rural areas of the city.

Abe Fortas:

(Inaudible)

Harry Frazier, III:

Two things that characterize this city are its explosive growth and the heterogeneous makeup which is the City of Virginia Beach.

Abe Fortas:

Well in effect, I expect that what we’re hearing is that Virginia Beach is more like a — or Virginia City or whatever it’s called, is more like a state than a city except possibly with respect to the powers of exercise in the two jurisdictions.

Harry Frazier, III:

I don’t think that — I don’t think I agree to that Mr. Justice Fortas, it exercises powers of a city.

It is more like a state in that it has a widely, varying conditions within it, yes, but its government, its function, its duties are those of the city.

Abe Fortas:

Then, I think we are in accord on that.

Harry Frazier, III:

Alright.

I see that my allotted time has expired and I wish to save some for rebuttal unless the Court request otherwise.

Earl Warren:

Okay.

Henry E. Howell, Jr.:

Chief Justice and members of the Court.

Before examining —

Earl Warren:

Mr. Howell.

Henry E. Howell, Jr.:

Before examining the parochial defects of the Seven-Four Plan which stand condemned by unanimous opinion of the Court of Appeals for the Fourth Circuit, I know that this case will be that platform for setting the guidelines for other cities across the United States of America.

And we respectfully submit that the natural supplementation of the Sims case would be somewhat phrased as follows.

Whenever a citizen is given a statutorial right to vote for any candidate or on any issue, the equal protection guarantee of the Fourteenth Amendment requires that equal weight and influence must be given to each and every vote.

Justice Fortas’ dissenting opinion in Fortune against Morris, I say becomes decisive and majority language when considered in a case where the state has decided that there shall be an election in which citizens have the right to vote.

Justice Fortas stated a vote is not an object of art.

Henry E. Howell, Jr.:

It is the sacred, most important instrument of democracy and of freedom.

In simple terms, the vote is meaningless.

It no longer serves the purpose of the democratic society unless it taken in the aggregate with the votes of other citizens results in affecting the will of those citizens provided that they are more numerous than those of differing views.

We submit that what this Court has previously said is that, the vote is the only way the American citizen has to speak politically and that there will no — there will be no degrees of freedom of political speech by diluting or debasing the full expression of his vote whether that’s scheme be sophisticated or whether it be apparent as it knows on one space.

We’re getting now to the case as before the Court.

It started out, how did the City of Virginia Beach come about?

What is the genesis of it?

It came about because under the laws of the State of Virginia one city cannot annex another city.

And Princess Anne County was seeking immunization from the oddly urban scroll of the City of Norfolk and in order to buy that immunization they had to guarantee to the supervisors on the board of supervisors of Princess Anne County which was elected by wards or districts, and had to guarantee to the five members of the City Council of the Resort City of Virginia Beach who were elected at large, they had to guarantee them their seats.

And that is what has spoiled the constitutionality of the present government of Virginia Beach.

When you attempt to mix the hard political bargaining that may come in a merger or arrangement with the guarantee of one man, one vote, it will no longer — it will no more mix and — and oil will mix with water.

The first plan, the City of Virginia Beach admitted, was unconstitutional, the faster resolutions that they will go into the General Assembly to seek a representative form of government.

So Judge Hoffman who had condemned that plan, he being the dissenter in the three-judge federal court ruling in Mann against Davis, it came up and it was affirmed by this Court, Judge Hoffman gave him an opportunity to go to the next General Assembly.

Now if the Court please, when you go to the General Assembly — may I take any state legislature that the committee on county citizen towns operates on the matter of local privilege.

If I come up there with a charter arrangement to divide the City of Norfolk into a thousand and one parts or the City of Virginia Beach in 2000 parts, if that’s what the legislative says, that the City Council wants, that’s what the City Council gets.

So there is no real overall legislative analysis or a particular change in a local charter.

So they thought they would see if they could pass a muster with the Seven-Four Plan.

And the test really in this case, one of the test, other than the annunciation of a broad principle with respect to city and forms of government is going to test the language of Chief Justice Warren when he wrote the majority opinion in Reynolds against Sims, when it was stated that sophisticated plan and substance are — sophisticated plan would fail just as quickly as would one that respect patently unconstitutional.

Because here, this merger or bargaining that took place, it was designed not to change a single geographical limit of a single magisterial district in the old Princess Anne County.

It was designed to make sure that the rule-oriented supervisor could be guaranteed election on the new City Council.

What did the Seven-Four Plan do?

It didn’t change a single geographical line.

Although the statutes of the State of Virginia require that when a city shall have wards, those wards shall be changed from time to time either every ten years or sooner.

So that in each ward there will be as near as possible the same number of people.

Virginia has led the nation in the app — in their early application of one man, one vote to congressional, to state, and to local reapportionment.

Sometimes the elected officials have blinked at the very clear log that it is written in all levels of government in the State of Virginia.

So not a single geographical change was made and they found a way to guarantee that the election of the people from the sparsely settled borough Pungo where I think in Blackwater, where there were about 733 people compared to Bayside where there were 28,000 people.

Now these people in the populous areas which are the voters that constitute the plaintiffs in this case, the appellees before this case, they are concerned with the fact that schools have to be built almost overnight that as these apartment houses go up and these housing projects spread out from the urban core of Norfolk into the City of Virginia Beach, these problems must be solved.

And the slow pace of the agrarian society, the only problem that is really so complicated down there is the very natural desire of the man who was in Pungo and back there in that great duck hunting country, he doesn’t want to have to pay the cost of a bursting of population that’s going to create the stupendous rise in the cost of government that’s involved in fire, police, and school protection for these thousands —

Earl Warren:

I suppose Mr. Howell, your point is that, once from Pungo, always from Pungo and the fact that it’s a citywide election doesn’t help the other residence of the city because they have to elect a man from Pungo.

Henry E. Howell, Jr.:

Exactly, and that’s what Judge Bryan said in not quite so graphic words.

He said, “once for Pungo, all for — always for Pungo”.

The Pungo man are no longer go duck hunting with his buddies down there.

If he went on that city council and raise the taxes of Pungo, then I could think a fine of this — this courtroom, it’s just — he wouldn’t be welcomed at the country store when he went down on Saturday to talk about the week’s activity.

Abe Fortas:

I guess the problem is that it cuts the other way too doesn’t it, that is to say unless you share Mr. Ryan’s view about the virtues of city officials, I’m just teasing now.

The city or the people who — if you had all of the members of the governing council elected from the city, they might be less than — less solicitous about the rural areas and the rural people think (Voice Overlap) —

Henry E. Howell, Jr.:

What we want to do is integrate the farmer with the — with this — the suburbanite.

We say that they should change the lines as they have done throughout Virginia, changed the ward of the borough line so that we have some of each in there.

And certainly the problems of the people have got to be answered and what the most pressing problem is, it has got to establish the general (Inaudible) of that particular municipal form of government.

Otherwise we’re going to compound oddly responsiveness of the government to the needs of people which this Court cut off at the past with the one —

Potter Stewart:

I don’t know how far it’s appropriate to pursue this in practical inquiry about this “once from Pungo, always from Pungo” argument.

There would be presumably more than one candidate from Pungo.

And if the election is by the city at large, I should think that the man who is the least provincial — Pungo man would get a larger vote from the city at large, would he not?

Henry E. Howell, Jr.:

Judge Bryan has (Voice Overlap) —

Potter Stewart:

There are only 600 and some total vote in Pungo in the — these people are running to get the majority of the — a majority of the vote of the entire city.

And I should think that the rule — the Pungo man to be a very — to be the — as little at least provincial as possible in (Voice Overlap) —

Henry E. Howell, Jr.:

Mr. Justice Stewart, I agree with the — Circuit Judge Bryan when he said that —

Potter Stewart:

(Inaudible)

Henry E. Howell, Jr.:

No, would his naturally dominating provincial interest be neutralized by his defendants upon the electorate of the entire city for his office.

His subsequent defeat because of a show of parochialism would not remove the inequality and representation for the choice of a successor which still be limited to the same district.

Potter Stewart:

It would be a very valid argument if there were only one candidate from Pungo, but there were — there would be two or more —

Hugo L. Black:

(Inaudible) than at Pungo?

Henry E. Howell, Jr.:

Pungo has not been characterized by outstanding demonstration of political competition.

I don’t know whether there has been a contest for the Pungo magisterial supervisor.

See, he’s always elected as supervisor down in Pungo and I don’t think it’s considered fair play to run against your —

Potter Stewart:

Because of that premise? [Laughter]

Henry E. Howell, Jr.:

(Inaudible)

Hugo L. Black:

I thought the — suppose you got (Inaudible) down there from the city?

Henry E. Howell, Jr.:

But a —

Hugo L. Black:

(Inaudible)

Henry E. Howell, Jr.:

In all seriousness if this Court please, we had a graphic demonstration of how one city identical with this unique City of Virginia Beach, read Sims, read the mandate of this Court, and have gone about elections at large.

These cases, the Virginia Beach case was tried concurrently, and at the same time the City of Chesapeake.

The City of Chesapeake is made up of Norfolk County and South Norfolk.

They merge to stop Norfolk for annexing them at or about the same time.

Now, Mr. Frazier brags about the ducks.

In the City of Chesapeake, we have the largest swamp in the United States of America, the Dismal Swamp and the best bear hunting, with the best deer hunting.

It’s down in the City of Chesapeake.

But they went to the General Assembly of Virginia.

And they put up a plan whereby all of that councilmen ran at large and they — well on their way to restore inviolability to this new City of Chesapeake.

It’s — I think that perhaps in just a word or two in — I could probably conclude what contribution I could make to this Court.

We have taken the statutory history of cities and one man, one vote from the last General Constitutional Convention in Virginia that was held in 1901 and 1902.

At that time, it was described what the role of cities would be in Virginia namely that they are arms of the state for discharging certain state functions and they are government within themselves with all of the legislative powers, and governing powers that the council for — appellants have sought — conceded.

I believe hour for adjournment has arrived.

Earl Warren:

Well, did you say you had completed your argument or did you — if you’re going to argue in the morning, we’ll adjourn now.or

But if you had completed your argument, we might finish it because the counsel only has 10 minutes.

Henry E. Howell, Jr.:

Alright sir.

Earl Warren:

I don’t want to hurry you at all but I thought you’ve said that that was all you could contribute or something to that kind.

Henry E. Howell, Jr.:

I — in the absence of questions from the Court.

This Court’s been sitting here for two days hearing this question, I just say that we have pointed out in our brief that Virginia has statutes that require one man, one vote and that this is an extraordinary deviation from the statutory guarantees of one man, one vote to all levels of government in Virginia, and I respectfully submit they will not be condoned by this Court if we follow the normal extension of Sims.

Earl Warren:

Thank you.

Mr. Frazier, you may conclude your argument.

Harry Frazier, III:

May it please the Court.

I believe two things should be said in reply to Mr. Howell.

First, he artfully suggests that this plan is contrary to the law of Virginia.

He doesn’t say it.

He conveys that impression an unmistakable effect.

Has not so — Supreme Court of Appeals of Virginia had determined that the policy of the state which does favor boroughs of equal population — wards of equal population does not require it in the City of Virginia Beach which has especially conferred charter by the General Assembly.

So let’s make it perfectly clear that despite these references, to what the policy of the state is, the plan that we have here is not contrary to the law of the Commonwealth of Virginia.

The only question is whether it’s contrary to the equal protection clause of the Fourteenth Amendment if that is applicable.

Now the second thing that I feel we must point out in reply to Mr. Howell.

Harry Frazier, III:

He is strangely silent about minorities.

And I know Mr. Howell better than you gentlemen.

One of Mr. Howell’s greatest concerns back home is minorities, but he’s strangely silent when we come to minorities in the City of Virginia Beach.

We’re talking not about a racial minority, were talking about economic minority groups here, agriculture, the largest industry in the City of Virginia Beach.

Agricultural lands occupy over more than half of the area.

But he would provide no means of any effective representation for them.

He doesn’t even face up to the problem.

In this we feel is ignoring a responsibility of local government that it must make it possible for minority views to be expressed.

There are two cases that deal on this that are mentioned in our brief.

One mentioned by the Solicitor General involving in the City of New York where borough — five boroughs each have two elected at large within the borough but not more than one can be from any political party.

It’s an effort ignoring one man, one vote for the purpose of ten of the 37 councilman.

It is a conscious effort to provide representation to minority groups.

And you an have more than one from a political party.

Byron R. White:

Well Mr. — that doesn’t — just because you’re — you want the minorities to have a voice doesn’t mean that the minorities ought to run the city.

Harry Frazier, III:

And they cannot run the city.

Byron R. White:

Right.

Harry Frazier, III:

I quite agree.

Byron R. White:

But (Voice Overlap) —

Harry Frazier, III:

They cannot run this city.

Because the people who are elected from the smaller boroughs will constitute at most three or four out of eleven members so they can’t run anything.

And this is why we think this is the only plan that we’ve been able to come up with that guarantees an expression of the view points from minority interest and yet ensures that the majority will always have the opportunity to control.

They don’t have to pay any attention on the deliberations of the city council to those who were residents of the smaller boroughs.

But they do have to give them an opportunity to be heard.

Earl Warren:

But if the principle of equal protection is not applied and we followed your doctrine, would it not be possible there are other circumstances to so arrange the boroughs of the county so minorities would have absolutely no place in government at all.

Harry Frazier, III:

Yes, it would.

But well — we are saying is you can extend equal protection to the City of Virginia Beach.

But there are reasons, two particular reasons why you should affirm or validate the Seven-Four Plan.

It’s opportunity for all to participate in the election of all councilmen and the unusual circumstances, the rational justification for the plan viewed in the light of these circumstances.

This is thrust of our argument.

Thank you.

Earl Warren:

Thank you.