East Carroll Parish School Board v. Marshall – Oral Argument – January 21, 1976

Media for East Carroll Parish School Board v. Marshall

Audio Transcription for Opinion Announcement – March 08, 1976 in East Carroll Parish School Board v. Marshall

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Warren E. Burger:

We will hear arguments next in 861, East Carroll Parish School Board against Marshall.

Mr. Ward you may proceed whenever you are ready.

John F. Ward, Jr.:

Mr. Chief Justice and members of the Court and may it please the Court.

I have requested the Marshall to notify as I would like to save a little time for a rebuttal and view of the Solicitor General being permitted to participate in oral argument and brief along with one additional amicus curiae.

Warren E. Burger:

When that white signal goes on, you will know that that is the signal to save time for rebuttal.

John F. Ward, Jr.:

Before getting to the discussion of the issues, facts and circumstances in this case, I dig two points [Voice Overlap] to consider and keep in mind while you are considering the issues and the facts and circumstances of this case.

One; East Carroll Parish is in North West Louisiana, a small rural parish.

In Louisiana, our law requires the Districts Attorneys in our state to represent the local governmental units in their districts such as School Boards and Police Juries.

Often times a District Attorney will have three parishes in his district which gives him three School Boards, three Police Juries to advice.

Of course he is primarily a county prosecutor.

Criminal Law; our District Attorneys are generally understaffed and overworked and their assistants, the view that they have are trained primarily in Criminal Law.

But we do not have for our School Boards unfortunately and our Police Juries a battery of lawyers such as the Solicitor General and Justice Department have, or the lawyers committed to Civil Rights under the Law or even lawyers with the expertise and knowledge in Constitutional Law that Mr. Halpin has from the many cases he has handled with the AC, American Civil Liberties Union.

I say that not to present a David and Goliath type picture, but merely so that the Court will understand that back in 1971, 68 to 71 when this was in — the case was in the District Court, that School Board and Police Jury was relying on the advice of an Assistant District Attorney who really had not a great deal of experience in this area of the law.

And also, the second point, this particular area of the law was constantly changing.

It was virtually impossible, really, for lay Police Jury members and lay School Board members to know from day to day what the law really was with regard to reapportionment.

It was not until really your averred decision that when you reply to local political subdivisions as well as congressional districts and state legislators.

At that time in ’68, we tried to anticipate the problem of reapportionment and assist these School Boards as the brace of all three, the respondent, the Solicitor General and Amicus Curiae point out.

The Louisiana Legislature in 1968 adopted a law which would permit School Boards to reapportion themselves, that was Act 561.

A similar and not seminar law, but to the same effect was suggested by the Police Juries, Act 445.

It is animated and the plaintiffs — respondent’s brief and the government’s brief that because in prior years the School Board members and the Police Jury members had been elected from wards within a parish.

That when the Legislature switched to a reapportionment plan which would permit At-Large Districts that there was some invidious motive in switching from single member districts, if you could call our Police Jury Ward Single-member District, they really were not, because some of them were Multi-Member.

But the switch-in from that system to a possible Permissive At-Large System was designed to discriminate against black citizens and to deny them the right to vote and the right to participate in the electoral process.

Nothing could be farther from the truth.

For the School Boards Association, the Louisiana School Boards Association which is a non-profit advisory service type organization which I happen to represent, I drafted the legislation or the School Boards that the legislature adopted, Act 561.

It was slightly amended in the legislature, but basically we were lucky and it came through pretty much in as it went in.

We never considered once, the possibility of that at-large feature, permissive at-large feature being used to discriminate a back against black citizens or to dilute their vote.

We simply wanted to give our School Boards as much latitude as possible in trying to devise the best plan that they could to help them provide the best possible education system they could in their parish.

The Attorney General of our state, somewhat delays, submitted those two acts to the Attorney General of the United States as required by the Voting Rights Act.

He entered an objection due to the at-large feature.

We spent, myself and Mr. James Prescott who was Executive Secretary of the Louisiana School Boards Association about two years with numerous phone calls and correspondents trying to convince the Attorney General that since that the at-large feature was permissive and since the Voting Rights Act would require submission of local governmental units reapportionment plans to him, there was no need for him to object to the State Legislation and not only that, but because of his objection we now find that some School Boards, I say them particularly because I represent them more than I do Police Juries, could not reapportion because of the inoperativeness of the State Legislation.

Potter Stewart:

It was authorizing Legislation was not it?

Both acts were authorizing Legislation?

John F. Ward, Jr.:

Yes that is correct Your Honor.

Potter Stewart:

Authorized the School Boards to do this if they wanted do?

John F. Ward, Jr.:

That is correct, it did not mandate At-Large District, it made it permissive.

Potter Stewart:

That is what I thought and that was true on both acts, both for the School Board and the Police Jury?

John F. Ward, Jr.:

That is correct.

The Police Jury Act was much shorter.

It is simply repealed a lot of the statutes tying Police Juries to wards whereas our Act went into more detail, limited the smallness and the maximum size of the board within their discretion, permitted Single member districts or At-Large Districts.

As probably it just as part of the one reason for that was that School Boards had been tied to Police Juries’ historically.

Simply we like same School Board members, and same wards elect, Police Juries and the School Boards have wanted to get away from that for many years —

Lewis F. Powell, Jr.:

Mr. Ward, tell me about a Police Jury that it have the same as I did generally as a County Board of Supervisors?

John F. Ward, Jr.:

Generally speaking, Justice Powell, I would say yes.

[Voice Overlap] building roads and drainage that is — that kind of thing?

Lewis F. Powell, Jr.:

But it has a power to levy taxes?

John F. Ward, Jr.:

Yes Sir.

Lewis F. Powell, Jr.:

It is the only governing body in the parish?

John F. Ward, Jr.:

It is the only governing body in the parish except for the School Board which has complete and sole jurisdiction over the School System for the parish and any town council which may be in a town or village.

It is the sole building part of a Parish Government But as I was saying School Board functions and Police Jury functions are so totally different that we had long wanted to get away from being tied to the Police Juries.

There is no reason why School Board members should be elected from the same district that Police Jury members are.

We have perish wise school systems and it did not make it — it is not important whether this man gets a school built in his district as compared to this man over here, is do you get the right kind of school bills throughout the parish to provide the best education.

We ultimate were successful in getting the Attorney General, convincing him that he could withdraw his objection to the Permissive Legislation which he did in ’72 after this case had gone through the District Court.

Now, when it was before the District Court originally, it was on a suit on the Fourteenth Amendment grounds of one man, one vote in ’68. Of course an At-Large System meets one man, one vote requirement perfectly with zero deviation.

When 1970 rolled around, as a matter of fact that plan was approved by the District Court, there was no appeal taken and really it is sort of a res judicata.

Byron R. White:

That was an At-Large plan, that was residential requirement?

John F. Ward, Jr.:

That is correct.

The same residential requirements meeting that wards.

In 1970, however the District Court on its own motion requested the Board and Police Jury to either file a new plan or at least file updated statistics based on the 1970 census which —

Byron R. White:

Who requested that?

John F. Ward, Jr.:

The district judge, Your Honor.

Byron R. White:

Who had retained jurisdiction?

John F. Ward, Jr.:

No sir.

Not specifically.

I did not believe if you — the appendix indicates that he retained jurisdiction from his — he may have, you are correct to that one.

Byron R. White:

Well and he must have [Voice Overlap]

John F. Ward, Jr.:

That is right that is prior to —

Byron R. White:

[Voice Overlap] a new lawsuit?

John F. Ward, Jr.:

That is correct and required them to update, they did simply by filing the same plan, the ’70 census figures did not affect the one man, one vote because it was an At-Large System.

Byron R. White:

So did he enter a new order?

John F. Ward, Jr.:

At that point the present intervene respondent, intervened Mr. Marshall and complaining of Fifteenth Amendment discrimination and dilution of the black vote.

The District Court held a hearing in July of 1971 in which the plaintiffs, the intervene here Marshall put on the evidence to the effect that you had a history of segregated school system in East Carroll Parish that you — Federal Registrars had registered — black people had to come in and register black voters, the usual effect of that obsolete, hopefully, obsolete history of our past as to practices which we now regret.

However, in this particular parish at that time even, black citizens constitute about 58% of the total population in the parish.

At that time they were 54 or 45% approximately of the registered voters in the parish.

I do not know what the eligible voting age figures would be, I do not have those.

The District Court concluded in its order of August ’71, set down seven points, four of which as I recall related directly to whether or not this plan discriminated against the black citizens of East Carroll Parish.

He found that it did not.

That they were majority in population, that the plan was accruable on one man, one vote since it was at-large and he approved that plan.

The intervener noticed an appeal to the Fifth Circuit.

The final decision affirmed the District Court, two to one.

An application for rehearing was filed and granted by the Fifth Circuit and they reheard the case en banc, en banc as we say in Louisiana and by a nine to six split decision reserved the District Court finding that due to the fact that black citizens in East Carroll Parish who were at that time only 54% or 45% of the registered voters, regardless of the question of how many were eligible to register, of age to register, that, that was sufficient to dilute the minority vote.

Even though the black —

Potter Stewart:

So it was a constitutional holding?

John F. Ward, Jr.:

Constitutional, yes sir, that was a constitutional holding based primarily on white versus registered.

There were six dissents, six dissenting opinions to the effect that population is the proper criteria not registered voters and that — because of population majority, there was no way that an At-Large plan could discriminate against that majority.

Byron R. White:

Mr. Ward was your — what was the judges’ answer to contentions in a District Court or that — without even getting the constitutional issues that the preference is for single member districts when a Court is fashioning a real question for him?

John F. Ward, Jr.:

I may have partially beg ignorance Your Honor, I did not represent the petitioner either at the District Court or the Court of Appeals.

Byron R. White:

Well is not that — that is — this Court has said that is the normal rules, is not it?

John F. Ward, Jr.:

That is correct.

Byron R. White:

Although Multi-Member Districts are not, necessarily are not per se unconstitutional if a Court has to come up with a plan or approval plan and that the preference is for single member districts?

John F. Ward, Jr.:

Well, I think you did say it in Connor versus Johnson that when a Court fashions a plan, it may not have been Connor versus Johnson, that it should prefer single member districts although I do still — I do not yet understand that preference.

Byron R. White:

Well, it may I may not be of understanding what I asked you was what was the District Court’s answer to that?

John F. Ward, Jr.:

That — his answer to that was that if the issue was raised at the District Court level that — regardless of that preference and if there was proof that the other plan was unconstitutional, there was no need for him to draw a single member district plan.

He did not actually draw this plan.

Byron R. White:

I know but it — put into effect by a court order?

John F. Ward, Jr.:

That is correct, yes sir.

Byron R. White:

It was not a piece of legislation?

John F. Ward, Jr.:

Yes, well, that is a contention in this suit.

Now [Voice Overlap]

Byron R. White:

Well, now it is not a piece of legislation, it was a court ordered plan?

John F. Ward, Jr.:

The court ordered the Police Jury and the School Board to adopt.

Byron R. White:

That is exactly.

John F. Ward, Jr.:

And submit to it a plan, which they did.

Byron R. White:

Which they did, which is normal in reapportionment cases.

You get to submit plans, that is where they usually come from?

John F. Ward, Jr.:

And he accepted their plan as being as constitutional.

Potter Stewart:

The School Board and the Police Jury had legislative authority to do it, did they not?

John F. Ward, Jr.:

There would be a —

Potter Stewart:

If you are really authorizing Acts of the State Legislature?

John F. Ward, Jr.:

If you go purely technically at the time this case was decided in the District Court the Attorney General’s objection to the permissive legislation was still in effect and had not — it was not withdrawn until ’72, so those State statutes were no in effect?

Byron R. White:

And they have no legislative authority to do.

They could certainly comply with the Court’s request to submit a plan, but they could not legislate without the statutory authority?

John F. Ward, Jr.:

That would be correct and that is correct, Your Honor and the Court approved the plan as being constitutional over the objections that it is discriminating.

Now, of course single member districts and multi member districts, you can draw reapportionment plans just like a pie, you have got all sorts of different kind of slices depending on who is got the knife.

Byron R. White:

Well was that urged in the — was it urged in the Court of Appeals that single member districts should have been put in because the preference expressed by this Court for single member districts in court ordered plan?

John F. Ward, Jr.:

It was raised Your Honor.

There was not a great deal on how it made of it that I can find either at the District Court level or at the Court of Appeals level.

Byron R. White:

While the case was pending in the Court of Appeals did the District Court tried to change its order?

John F. Ward, Jr.:

Yes, Your Honor, it did.

Byron R. White:

And that did not it put it in single member districts while the case was pending in the Court of Appeals?

John F. Ward, Jr.:

That is correct, Your Honor.

Byron R. White:

And what did the Court of Appeals say about that?

John F. Ward, Jr.:

That once the case was on appeal, the District Court no longer had jurisdiction to enter a new order.

William H. Rehnquist:

That was the panel decision though of the Court of Appeals.

I did not see that repeated in the en banc?

John F. Ward, Jr.:

In the en banc as I recall — if they have mentioned it all; it was barely in passing because they have decided apparently that they were going to reverse the At-Large plan, so really there was no need for them to particularly consider that question.

Byron R. White:

And when they would not have any need for one, they will even have an en banc hearing if the District Court was already ready to put in a Single-Member District Plan?

John F. Ward, Jr.:

But does a District Court have jurisdiction to issue orders once the case is on appeal.

Are there — can he cut out the chance to hear the issue on appeal when it is already been appealed and another thing that this was ex-partie order, issued without hearing, without notice to the defendant political subdivision —

Byron R. White:

As the case come to us we are talking to the validity of a District Court order that the district judge who wants to scrap and has tried to scrap?

John F. Ward, Jr.:

I would respectfully submit that on all the rules [Voice Overlap]

Byron R. White:

Well, is not that true that is the fact, I agree with you that the Court of Appeals has set in that — it had — that district judge had no authority?

John F. Ward, Jr.:

Apparently somebody convinced him without a hearing or anything that perhaps the state of decisions that have come down since the original order commanded Single-Member Districts.

If that is the law, it certainly should not be the law because Single-Member District can be just as a discriminatory as At-Large and Multi-Member Districts.

William H. Rehnquist:

Is there anything in the record Mr. Ward that indicates one way or the other whether the District Court’s second order was entered with or without a hearing?

John F. Ward, Jr.:

You will not find a new motion [Voice Overlap] in the record after the original complaint was filed. In his brief he attaches the order of the court, but he does not attach any new motion or is there any in the record that I was able to find or any notice of the hearing to be set and according to the information given me by the then Assistant District Attorney who was handling it, nobody knew about it till in it was issued.

Warren E. Burger:

Does the order itself shed any light on that with the preamble statement as to how the order happened to be entered?

John F. Ward, Jr.:

Your Honor as I recall the —

Warren E. Burger:

Usually if there is a hearing it recites the fact of the hearing, does it not or is that a Louisiana practice?

John F. Ward, Jr.:

All it says, I willl read the very beginning —

Warren E. Burger:

Excuse me, Mr. ward, where are you reading from?

John F. Ward, Jr.:

I am reading from respondent’s brief, page 1AA of appendix.

If the order itself, this is the order of ’72, March 27, 1972 commences by saying on August 7, 1971, this Court entered an order approving At-Large Parish while the elections for the Police Juries, School Board of East Carroll Parish.

Subsequent decisions, particularly the United States Court of Appeals for the Fifth Circuit have convinced this court that at-large elections for a parish with a sizable black population and a history of denial of vote to black citizens is constitutionally impermissible and as allowed by the Louisiana Statutory Authority.

Having received the various alternative plans proposed by plaintiff intervener and defendants at the July 29, 1971 hearing, the court finds that the nine member plan of plaintiffs is the best.

No indication at all of any further motion by the intervener or any notice to their respondent or defendant public bodies, a chance to defend against that viewpoint which we submit as incorrect, both procedural and as a matter of law.

John Paul Stevens:

Mr. Ward while we are talking about procedural problems here, you mentioned in your brief, at least if I read it correctly that there has been change in the relative strength of the black versus white voting population, is that in the record and what is the support for that in your brief?

John F. Ward, Jr.:

My authority for that change in registered voters comes from a letter from the registrar of voters as I requested him to let me know what was his registration.

Now, those figures are accurate, they are not in the record.

The record would have to be supplemented and I inquired of the clerk after filing my petition, if it would be proper to do so and he indicated that at the time he did not — just helping out fact that these are one of those cases that cannot be decided on the basis of just old stayed facts in 1971 like maybe an automobile accident can be decided.

The law changes —

John Paul Stevens:

If you think it would be appropriate for the whole case to go back to the District Court and start over, is that what you really saying?

John F. Ward, Jr.:

No sir, I am saying I do not think you should.

I think you can decide this case on the merits even if the government’s position as to Section 5 of the Voting Rights Act is correct and should be applied in other cases, there would be real point in sending this case as it stands before you now, back to the District Court and put these two bodies though all of the expense of going to the Attorney General under Section 5, then possibly having to go to the District Court of the District of Columbia to get a ruling if the Attorney General’s ruling is adverse.

I think the Attorney General may also need some direction from this Court as to is At-Large System under these kind of circumstances constitutionally impermissible.

Presumably if you deny he may in his consideration, if it went back to the District Court and through the Attorney General under Section 5, say is constitutionally impermissible and he will come right back to this Court again because it just does not seem conceivable to me —

John Paul Stevens:

But Mr. Ward, which are the circumstances we should base that decision on, an assumption that the blacks outnumber the whites or the whites outnumber the blacks in the voting arena?

John F. Ward, Jr.:

The respondent here, the complainant —

John Paul Stevens:

What is the factual basis on which you want us to make that decision?

If it is on the basis of the record, it might be one decision and it is under basis what you tell us in the brief, it might be something else?

John F. Ward, Jr.:

I think on the basis that I think if there is a problem with doing it on the basis of the record, the Court should permit the record to be updated with regard to the present facts as to — [Voice Overlap]

John Paul Stevens:

And you think that the updating should be done in this Court rather than the District Court?

John F. Ward, Jr.:

In the essence of time, I would say yes, Your Honor.

If it must go back to the District Court for that then let it go back for that limited purpose, but even the District Court is going to need some direction from this Court as to, if the facts are this what is the law, if the facts are what is the law.

Are there now more registered black voters in the East Carroll Parish, then why, and is the population 58, still 58% black and if it is, then is this At-Large plan constitutional?

I think the District Court will need to know because I do not believe he knows now, whether it is or whether it is not.

Thurgood Marshall:

And we do not either?[Laughter]

John F. Ward, Jr.:

But you have to make the decision as to what —

Thurgood Marshall:

Well, how can we, if we do not know?

John F. Ward, Jr.:

Well, as to those facts, if you want to send it back to the District Court or to permit to us to supplement the record with the exact facts, that may be the proper thing to do.

It is a long time and a lot of expense for this — to local government units who do not have a great deal of money.

They are not — local governments are not very rich, particularly in smaller rural parishes.

I would like to perhaps conclude —

Thurgood Marshall:

You said it (Inaudible)

John F. Ward, Jr.:

— by saying, I do not necessarily disagree with government’s position as to the use of Section 5 and that plans should be submitted.

The law of Section 5 has changed so much since the Voting Rights Act was first adopted.

In 1965, the only newspaper publicity was about reading more — to read the constitution and that sort of thing.

It was not really until about 1969 or 70 that we begin to realize, that is in the local government area, that this Section 5 is back there, that everything we do must be submitted to the Attorney General.

We relocate a polling place in somebody’s grocery store and he says “I am tried of putting up with this,” go find yourself another polling place, we do that, it must be submitted.

It is a problem, but I have submitted plans to the Justice Department under Section 5 and have had them approved, all Single-Member Districts, all Multi-Member Districts and combination.

And that does not bother me, having to come all the way to Washington, D.C. and bring witnesses in order to try to defend myself in the D.C. District Court.

John F. Ward, Jr.:

That is another problem, of course Congress did it, I do not know that you could do much about it, unless it is discriminatory against the states for depriving them of the normal judicial procedure of their local district judges.

There seem to be some indication that perhaps Congress did not trust our local district judges.

I find them — Mr. Halpin wins as many cases on one side as I do on the other side, so they do a pretty good job, but perhaps that is a way to take a burden off of the court system by requiring it to go to Section 5.

In other cases, even though a suit has been filed, and our problem back in ’71, particularly with Connor versus Johnson, we did not know how far Connor versus Johnson went and suits were being filed and the district attorneys relied on their district judges and the district judges’ docket is not the only one interpreted Connor versus Johnson to apply even when he did not devise the plan himself, but had compelled the plan, through a court order directed the legislative body to submit a plan to him.

I think you can decide the merits of this case under these circumstances on the merits and hold this At-Large plan as being constitutionally permissible under these circumstances and make an alternative decision on — as to other cases under the Section 5 position of the Government.

Thank you, Your Honor.

Warren E. Burger:

Very well, Mr. Ward.

Mr. Halpin.

Stanley A. Halpin, Jr.:

Mr. Chief Justice and may it please the Court.

There are certain factual matters that, and I feel compelled to correct at the outset, the matter of the question on the percentage of black voter registration in parish has been raising, question from Mr. Justice Stevens and the petitioners in their brief assert that as of the particular time in which they refer to in their brief that there was a majority of black voters and their figures I think showed the they were 17 more black voters than white voters.

However, I checked this and my information is that there was only a short period of time of approximately three weeks during the summer of ’75 in which this was the case due to a flux in adaption of the New Louisiana Constitution which enfranchised a new segment of people and blacks in the parish as they always do their work hard and got sort of a jump on the registration for a few weeks, but then the registration went back to it is normal level so that the figures that I have obtained from — had someone obtain from the registrar of voters in East Carroll Parish yesterday are as follows: that there are 3,511 blacks registered and 3759 whites registered or a white majority of 248 voters.

Warren E. Burger:

Mr. Halpin you are telling us that for is that we are not in any position to get into resolving the contest over the facts here, unless at some point you would both agree on facts which could be judicially noticed?

Stanley A. Halpin, Jr.:

Precisely Your Honor.

They are facts — this may be — this is just one of them, but there are also inferences to be drawn and so these facts have also been elections and have on — been run in five years since the trial of this case.

These are matters of serious contest and I frankly cannot see how we can, you know, we cannot resolve the case on the facts as they exist.

William H. Rehnquist:

Along that same line, can you shed any light on whether or not there was notice in the hearing in connection with Judge Dawkin’s order of (Voice Overlap)

Stanley A. Halpin, Jr.:

Yes sir, that is what I was going to refer to.

My — I do not have my complete file with me.

My recollection is that I filed a motion to modify the injunction which then resulted in the court order.

I am not absolutely positive and I will be glad to communicate by letter and attach, if that was the case, but certainly the situation was that the petitioners had certainly every right to move the court to reconsider or rehear had they object into the second order.

There is no question, second order was done very rapidly while hearing.

William H. Rehnquist:

And while it was an appeal?

Stanley A. Halpin, Jr.:

After appeal had been noticed.

Yes, sir.

Byron R. White:

What is your position on whether the District Court — I take it you felt the District Court had jurisdiction (Voice Overlap)

Stanley A. Halpin, Jr.:

(Voice Overlap) I think the — if we are dealing with injunctive matter, particularly in elections where you have a great deal of flux that certainly District Court has the right to modify an injunction to meet present circumstances and change in law or whatever and that, particularly in this case there are procedures which we indicated in a footnote in our brief that at least eight of the circuits agree that in situations as this where the district judge is changing his mind, the proper procedure is for the district judge to indicate his difference and then to the Court of Appeals to remand to give him an opportunity to (Voice Overlap)

Thurgood Marshall:

(Voice Overlap) did you said the other side?

Stanley A. Halpin, Jr.:

If I filed the motion, I did, serving on the other side, Your Honor.

Thurgood Marshall:

Well, I did not say he did not know about it till that came back?

Stanley A. Halpin, Jr.:

Well, Mr. Ward was not counsel then, so I think he was saying he does not know, but I will be glad to supply the court with whatever was filed or indicate the letter that no motion was filed, but my recollection, although that was five years ago, my recollection is that I did file something and my practice as an attorney is always to serve or file a motion to serve an (Voice Overlap)

Byron R. White:

Well, I think it is because the Court of Appeals had before it the district judge’s second order and decided that they would either — could not or would not consider it because in their view he had no jurisdiction?

Stanley A. Halpin, Jr.:

They mean that he is out of jurisdiction just in regard and I think the proper procedure at that stage would have been to remand the case so that perhaps within (Voice Overlap)

Byron R. White:

What was the district judge’s answer to Connor against — Connor v. Johnson claim that Single-Member Districts were to be preferred when the Court adopted the plan?

Stanley A. Halpin, Jr.:

It is not — frankly it is not absolutely clear.

I have to guess of course to certain extinct as to what the judge was saying and there was not a particular — I raised that on oral — orally before this — it does appear in a case.

Byron R. White:

And you raised — then you raise the same thing that Court of Appeals — the Court of Appeals put it on a constitutional basis?

Stanley A. Halpin, Jr.:

Yes sir and I can only assume that what was going on with the district judge is that — that somehow he did not consider himself in the situation of drawing a remedy or that somehow that case — I really do not know, Your Honor.

I cannot —

Byron R. White:

Was not there — that was a Section 5 matter?Then if he — ](Voice Overlap)

Stanley A. Halpin, Jr.:

Yes sir.

What I think — yes I think it is one way or the other.

I can not really read his mind, but it would appear to me that he was saying, perhaps was saying that “Well, this is a legislative enactment and it is not a Connor versus Johnson situation.”

I think it is either or then it should be going in Section 5 and if not it is under Connor versus Johnson, Chapman versus Meier and — but exactly was is at that time I cannot really tell the court.

Byron R. White:

But you are urging that this case (Inaudible) that?

Stanley A. Halpin, Jr.:

Yes, sir.

I think in view of that second order that it is.

Potter Stewart:

You are urging that the case is what?

Stanley A. Halpin, Jr.:

It is moot, Your Honor in view of the second order in that, this is here on certiorari —

Thurgood Marshall:

How does the second order get here?

Is it in the record in the Court of Appeal?

Stanley A. Halpin, Jr.:

Yes sir.

Thurgood Marshall:

Is in the record in the Court of Appeals?

Stanley A. Halpin, Jr.:

Yes sir.

Thurgood Marshall:

And that record is here?

Stanley A. Halpin, Jr.:

I would think so, Your Honor.

Thurgood Marshall:

The whole record?

Stanley A. Halpin, Jr.:

I would assume that it is.

Thurgood Marshall:

Well, how did they get a record of the Court of Appeals?

I do not mean the brief, I mean how did they get in the record?

Stanley A. Halpin, Jr.:

Well, a notice of appeal was filed by the other side to the second order and assume it was then launched.

William J. Brennan, Jr.:

It do not really mean moot in there, this case is not over?

Stanley A. Halpin, Jr.:

Well, Your Honor, I would, you know, (Inaudible) I would think that it would be in the sense that the District Court has definitely indicated its view to change its mind.

William J. Brennan, Jr.:

Well, I know.

Would not you be satisfied if this case were back before the District Court on a Connor and Johnson that you should have given preference to Single-Member Districts and you did not?

Stanley A. Halpin, Jr.:

Well, that is not my first preference but —

William J. Brennan, Jr.:

I know, but would that not accomplish everything?

Stanley A. Halpin, Jr.:

That would accomplish in some respects, I do not think that is the best.

William J. Brennan, Jr.:

(Voice Overlap)

Stanley A. Halpin, Jr.:

Yes, that would accomplish our purpose and that would be treating it as a Chapman versus Meier situation, but the reason that I am concerned about that Your Honor is that I think this is a Section 5 situation.

We have got not only this case to deal with, but we have got many other cases to deal with and I am familiar with those, particularly in Louisiana where these court decrees have been used to circumvent Section 5.

We lodged in the record for the Court’s benefit, I think which — I find worse example of this, but a classic example of circumvention, a case named Whatley v. Union Parish.

It is a very short record.

Everything was filed on the same day.

It is about ten days.

The complaint was filed on the same day.

The answer was filed on the same day.

An order was filed and signed on the same day by the court approving a plan for the redistricting of Union Parish, Louisiana, a place where a significant black population which the Justice Department had only months before objected to under Section 5 as a violation and the thing is, I think the way to hear this case would be to make a clear pronouncement with this Court, that this is clearly covered for instance by Connor versus Waller, that this sort of circumvention should not continue.

We cited in footnote 32 of our brief which I believe is at page —

William J. Brennan, Jr.:

What about our disposition last — what was Connor and Waller?

Stanley A. Halpin, Jr.:

Connor against Waller, Your Honor is the Mississippi situation —

William J. Brennan, Jr.:

That is when handled summarily last June or so?

Stanley A. Halpin, Jr.:

Yes, sir.

Specifically the Court indicated there that — the District Court in holding that — here the Court had — this Mississippi State Legislature had adopted a court, it is very similar to that which the District Court — the three-judge District Court had adopted.

And then the District Court said that, “Well, this is not subject to Section 5.

”This Court said “It was subject to Section 5,” and said that the court should not have considered those different racial allegations.

But at footnote 32 of our brief on page 18, we cite a number of cases, I think there are about ten or 12, all in that same district in Louisiana in which the courts have approved the redistricting plans without they ever having been submitted under Section 5.

Byron R. White:

Yes, but Connor against Waller involved a — whatever was submitted to the District Court in that case was a product of legislative action, it was a piece of legislation?

Stanley A. Halpin, Jr.:

Yes, sir.

Here Your Honor the Police Jury adopted a resolution.

They sent a letter.

Stanley A. Halpin, Jr.:

The Court said we have adopted this, please incorporate it in your fourth coming order.

William J. Brennan, Jr.:

Why cannot you recall in Connor and Waller you had two separate acts, one of the Upper House and one of the Lower House, and which added up to the Legislative plan, was not that it?

Stanley A. Halpin, Jr.:

It is terribly familiar with it, but that could be —

William J. Brennan, Jr.:

Well, that was my recollection of it and there was not any question that that was a legislative plan and yet the court for some reason held it was not covered by Section 5 and we summarily reversed said yes the legislative change like that was indeed a Section 5, is it that this situation?

Stanley A. Halpin, Jr.:

Well, just about it, Your Honor.

I think so, in Connor you had this on going redistricting litigation as to restricting the judges in the context of litigation just as much (Voice Overlap)

Byron R. White:

But your colleague says that when this plan was adopted it had no legislative power to adopt it.

It was just responding to a request to the court?

Stanley A. Halpin, Jr.:

Well, it is not clear what they say.

At one point on their brief at page six, I think they admit quite the opposite.

They say that this was not court fashioned plan, this was something the Police Jury had been working on even before.

They say that it is something that should be (Voice Overlap)

Byron R. White:

Well, maybe — his point was that under the state’s authorize — the state authorizing statute was not important.

Stanley A. Halpin, Jr.:

That is correct and so that technically, however, there are lots of bodies, Police Juries and School Boards which have continued to do that to enact it without that authorization and incidentally, again, a point of factual correction, the objection to 561 dealing with School Boards has been lifted, but the objection to 445 dealing with Police Juries has been never been removed by the Justice Department and that was a mistake in the fact.

Potter Stewart:

In other words, Police Juries continue to be without legislative power to reinforce themselves, is that right, because (Voice Overlap)

Stanley A. Halpin, Jr.:

To go at-large.

Potter Stewart:

I beg your pardon?

Stanley A. Halpin, Jr.:

To go at-large?

Potter Stewart:

Yes.

Stanley A. Halpin, Jr.:

They can redistrict themselves as long as they do it to Single-Member Districts.

They cannot go at-large using that new statute under current law.

Potter Stewart:

They do not themselves have legislative power to do that?

Stanley A. Halpin, Jr.:

Right.

Potter Stewart:

Because the authorizing statute is being — has been suspended while it is pending approval under Section 5 in the Justice Department, is that it?

Stanley A. Halpin, Jr.:

Yes sir.

Well, it is been objected to.

Potter Stewart:

That is what I am saying.

Stanley A. Halpin, Jr.:

Yes sir.

William H. Rehnquist:

It is not a Connor against Waller case by definition, it is not, by definition it could not be?

Stanley A. Halpin, Jr.:

Well, as practical —

William H. Rehnquist:

I do not mean just is a practical matter, but as a legal matter it is not, is it?

Stanley A. Halpin, Jr.:

I think it is indistinguishable Your Honor.

I think it is, I think it is a situation where you do have an adoption, although in the sense that they do not have authority to adopt it —

William H. Rehnquist:

Supposing a Police Jury has named its defendant in a District Court action and defense and they hire an attorney and there is the, I do not know whether you have a Chairman or President of the Police Jury in a committee that supervises this suit.

The attorney and the chairman, the Police Jury get together.

The court has asked for a plan and the chairman and attorney together say “We will submit this plan.”

Now, surely that is not a Connor against Waller situation, is it?

Stanley A. Halpin, Jr.:

I think the — I think it is Your Honor.

I think the test here is who drafted the plan.

William H. Rehnquist:

Well, I thought that — certainly what Connor against Waller talks about is, was this a legislative enactment?

Stanley A. Halpin, Jr.:

Well, I think, I think that, I think that distinction is over settled and does not really meet the needs of interpretation involves.

William H. Rehnquist:

That may be your view of the law of what the law should be, but certainly Connor against Waller spoke in terms of a legislative enactment?

Stanley A. Halpin, Jr.:

Yes sir.

But I think if you read Connor versus Waller with Connor versus Johnson wherein in Connor versus Johnson you had a situation where the Court was drawing its own plan as an interim measure, and this Court says “Okay, that is beyond the reach of Section 5,” that is the exact facts in narrow holding that.

William H. Rehnquist:

Well, you say the Court drawing it is own plan.

Now, you have practiced enough and I think I have practiced that before I went to the bench to know that there are very, very few judges who sit down without any advise from counsel on either side and ponder the whole thing through and come up something that was never suggested to them by a lawyer, do you not agree?

Stanley A. Halpin, Jr.:

Well, yes sir.

Frequently they are now appointing special masters who do draft the plans and —

William H. Rehnquist:

In the absence of a special master, I do not mean just in a case like this, but in any of case, the judge gets at least his idea, if not the findings that he actually signs from one of the parties?

Stanley A. Halpin, Jr.:

Well, of course it is always an adversary situation, yes sir.

And, but, as a — the practice — I realize that — I think the technical line when you read Connor versus Johnson together with Connor versus Waller, that the rule comes out that you do have to attempt to make this determinations as to what is — whether this is a preacher of the court or preacher of the legislature and to not do that —

John Paul Stevens:

You already suggesting is that the district judge when he calls for somebody to submit some plans, he is got to wait until – until dispose of this case, until one of the parties has its wrestling match with the Attorney General?

Stanley A. Halpin, Jr.:

Okay.

This is where I think it —

John Paul Stevens:

Either that or he has to receive the plan and then call up — and then himself ask the Attorney General?

Stanley A. Halpin, Jr.:

I think that if —

John Paul Stevens:

Well, that is exactly what the Court rejected in Connor against Johnson?

Stanley A. Halpin, Jr.:

Well, in the sense where it is a Court drawn plan, but I think the — certainly the primary jurisdiction is under Section — it should be under Section 5 and that at the proper course, for instance, for a court to do in this action unless it is emergency situation we had to (Voice Overlap)

John Paul Stevens:

Well I did not know Section 5 — I did not know Section 5 replaced all of the reapportionment litigation in the country?

Stanley A. Halpin, Jr.:

No sir, of course not.

Stanley A. Halpin, Jr.:

I am speaking only where —

John Paul Stevens:

Only where what, only where what?

Stanley A. Halpin, Jr.:

Section 5 Jurisdiction.

John Paul Stevens:

Well, you just said it should be the primary mechanism to reapportionment?

Stanley A. Halpin, Jr.:

I am sorry.

Where Section — no, where Section 5 coverage exists, I think the proper course that —

John Paul Stevens:

The question is where it does it exist, that is the question right here now?

Potter Stewart:

It is been squarely held that a court ordered plan is not subject to Section 5, has it not?

Stanley A. Halpin, Jr.:

It is been squarely held Your Honor that our plan which was drawn by the court —

Potter Stewart:

A Court ordered plan, in contrast with legislative plan.

(Voice Overlap) legislative body, statewide or local?

Stanley A. Halpin, Jr.:

My concern also — I have certainly, Chapman versus Meier and Connor versus Johnson would require Single-Member Districts back, but I wanted this opportunity to point out to the court some of the very difficult practical problems that we are dealing with in Louisiana and other places and that there should be some mechanism to avoid the circumvention of Section 5 through court orders and that mechanism would be as such as we are suggested in the brief either to get to draw (Voice Overlap)

John Paul Stevens:

You are suggesting now that — the federal district judges are parties to circumventing Section 5?

Stanley A. Halpin, Jr.:

Your Honor, (Voice Overlap)

John Paul Stevens:

Are we not supposed to assume that?

Stanley A. Halpin, Jr.:

Now, inadvertently it happens that way.

I am not suggesting any intent whatsoever, but I think because (Voice Overlap)

John Paul Stevens:

Well, then you are assuming that (Voice Overlap)

Stanley A. Halpin, Jr.:

(Voice Overlap) flexibility in the law, I am asking this Court really to clear it up.

John Paul Stevens:

(Voice Overlap) and if they do not know what is going on?

Stanley A. Halpin, Jr.:

No sir.

John Paul Stevens:

One or the other, you are suggesting is they are doing it deliberately or ignorantly?

Stanley A. Halpin, Jr.:

Well, I would suggest this Your Honor, that if the law, if this Court will make a clear pronouncement on that then there would not be this sort of fuzzy area between Section 5 which —

John Paul Stevens:

I suppose you would also concede or would you — I would like to ask you, what do you think the difference between the Section 5 standard is and the constitutional standard?

Stanley A. Halpin, Jr.:

Your Honor, I — well that is one of the problems that might (Voice Overlap)

John Paul Stevens:

Yes, I can understand (Voice Overlap) I can understand your interest in wanting to — them under Section 5?

Stanley A. Halpin, Jr.:

I think the principal difference in this case (Voice Overlap)

John Paul Stevens:

Because they will not permit Multi-Member districts under Section 5, if there is any kind of unidentifiable, a residential pattern of living in the community, is not that right?

Stanley A. Halpin, Jr.:

Well, I think it as a practical matter, the difference is where the burden of proof lies which to the extent to which that is a fact in the case it would make a difference in the standards, but when you are dealing with at-large elections it seems that substantive standards, it is not —

John Paul Stevens:

You know of any Multi-Member districts that the Attorney General has approved under Section 5?

Stanley A. Halpin, Jr.:

No sir.

John Paul Stevens:

You are not about to find one either, are you?

Stanley A. Halpin, Jr.:

[Laughter] No sir.

I was this — the — what I would urge the Court is that if as the Court has suggested that this is a creature of the Court, a court ordered plan which would not be under Section 5, that clearly Connor versus Johnson and Chapman versus Meier would require that single-member district be devised as a remedy.

The —

William J. Brennan, Jr.:

And now when I got to Conner and Waller now, and indeed what we held there was that District Court erred in holding that House Bill number 1290 and Senate Bill number 2976, Mississippi Laws 1975, regular session, are not legislative enactments required to be submitted pursuant to Section 5 of Voting Rights Act.

So there was not any question there that we had statutes of the State Legislature of Mississippi.

Stanley A. Halpin, Jr.:

Oh! Yes, sir.

William J. Brennan, Jr.:

That were held not to be a legislative enactment and we said that was just plain wrong, they should try it under Section 5, but I do not —

Stanley A. Halpin, Jr.:

here we have —

William J. Brennan, Jr.:

I suggest what you have here is not quite (Voice Overlap)

Stanley A. Halpin, Jr.:

Well we have a resolution of the School Board of November 18th, 1968 or whatever it is and it is — the question is that well, actually (Voice Overlap) not (Voice Overlap) have authority to (Voice Overlap)

William J. Brennan, Jr.:

Well I know, but you cannot talk about a legislative enactment if they had no power to enact it?

Stanley A. Halpin, Jr.:

That is true, Your Honor.

Well, there is certainly in any event it is quite clear that there are number of things that had happen since this case was tried some five years ago and I think it is certainly is appropriate a thing to be considered on the present facts and in this Court is in no position to do that.I

would think that it should be under Section 5 of the Voting Rights Act in particular that since now the School Board does have one body, does have the authority to be able to go at-large then maybe that is the result that we will have to reach ultimately and that some of this questions may be metaphysical because when it comes back to the Court, the Court will be in the situation, this Board now has the authority to do it and may well be an enactment then under Connor versus Waller and there was at the Courts that those are the matters that will have to be resolved.

Thank you.

Warren E. Burger:

Mr. Landsberg we will not ask you to fragment your argument.

We will have you on at one o’ clock.[Recess]

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

Brian K. Landsberg:

Mr. Chief Justice and may it please the Court.

Section 5 of the Voting Rights Act provides in relevant part that whenever a state and it is set forth on beginning at page 2 of the government’s brief, that whenever a state or a political subdivision with respect to which the prohibition is set forth in Section 4(a) are in effect, shall enact or seek to administer any voting qualification or prerequisite to voting or standard practice or procedure with respect to voting different from that enforced or effect on November 1, 1964, then that state or political subdivision must comply with the pre-clearance provisions of Section 5 either by bringing a suit in the District Court for the District of Columbia, seeking approval of the change as not having a discriminatory perpetual effect or by submitting the change to the Attorney General.

If it is submitted to the Attorney General and the Attorney General has not interposed an objection within 60 days then the state or political subdivision may enforce the change.

Now, the question today, I suppose is whether the words “seek to administer” which are found in the first —

John Paul Stevens:

This question is on — question is on which certiorari (Inaudible)

Brian K. Landsberg:

No.

John Paul Stevens:

What do you suggest to do about that?

Brian K. Landsberg:

Your Honor, I think it is a question of judicial administration which if we are correct in our position that the courts below should not have considered the plans submitted to them prior to pre-clearance then we think that the —

John Paul Stevens:

It is like a jurisdictional question?

Brian K. Landsberg:

It is in the nature of a not subject matter jurisdiction, but of a primary jurisdiction as we suggest in our brief.

William H. Rehnquist:

Ordinarily, though we do not even let one of the parties argue an issue that was not read or raised in the questions presented in a certiorari — here you are amicus and you are seeking to alter it?

Brian K. Landsberg:

Your Honor this court has on its own raised questions where it felt that principles judicial administration required the court to do so.

Warren E. Burger:

There is a difference between arguing an amicus grant of grant of the Court?

Brian K. Landsberg:

That is correct Mr. Chief Justice.

As an amicus we are, I suppose suggesting that this Court should do it and it is an issue which has been briefed.

It is an issue which has been addressed in oral argument.

This Court has the authority to decide it.

It is also an alternative ground for affirming the judgment of the Court of Appeals sending the case back to the District Court.

Byron R. White:

Well, that is also a little — it is also the question you want to raise seems to run against the grain of our prior cases?

Brian K. Landsberg:

Well, I think that is the question that I would like to discuss because I do not believe that it does.

There are two cases; neither case is an interpretation of the words “seek to administer.”

The first case, Connor v. Johnson held that a decree of a District Court was not subject to review by the Attorney General.

In that case the District Court had formulated it is own plan because the jurisdiction involved had failed to present an acceptable plan that met Fourteenth Amendment Standards.

So the Court properly held that under Section 5 this court ordered plan was not a plan which had been enacted by the jurisdiction and it was not a plan which the jurisdiction sought to administer.

Byron R. White:

Oh! Yes, but the fact remains that once the plan was issued by the District Court the locality administered it?

Brian K. Landsberg:

It was required to.

Byron R. White:

Well, it did administer it, did it not?

Brian K. Landsberg:

It did administer it.

It was under order to administer it.

Byron R. White:

And nevertheless it could administer the plan without going to the Attorney General?

Brian K. Landsberg:

That is what this Court held and we have no —

Byron R. White:

I am not sure you agree with that?

Brian K. Landsberg:

No.

We have no quarrel with that. Congress in reenacting the Voting Rights Act in 1975 cited this Court’s decision in Connor v. Johnson with approval as expressing the will of Congress.

Congress also was of the view and the legislative history is set forth on pages 18 to 20 of our brief that Section 5 would apply to situations such as this.

This is not a case where it was necessary for a decision of a District Court to be submitted to the Attorney General.

The proper course for the District Court here would have been to defer ruling on the case until the jurisdiction had complied with the provisions of Section 5.

We think that is what this Court said that the State of Mississippi should have done in Connor versus Waller.

Now, the difference between this case in Connor versus Waller is in Connor versus Waller there was an enactment.

Here it is arguable at least with respect to the Police Jury that there was not an enactment because of the invalidity of the state law providing for the enabling statute allowing at-large elections.

William H. Rehnquist:

What if the District Court here, Mr. Landsberg, had done just what it did, but there had been no appeal taken from it is judgment and then it became final, would you still say that there was a litigatable violation of Section 5?

Brian K. Landsberg:

Well, it has been — it has been held that there is by the Court of Appeals in the District of Columbia, sir.

William H. Rehnquist:

In this circuit here?

Brian K. Landsberg:

Yes.

William H. Rehnquist:

Even though the District Court judgment is final?

Brian K. Landsberg:

Yes and we would prefer to avoid that situation where the Attorney General is called upon a required to review a statute which the District Court has already approved.

We think that the procedure that we are suggesting would avoid that result.

The differences between Connor v. Waller and this case are perhaps twofold.

In Connor v. Waller there was not a court order to submit the change to the court, the legislature.

The court, however, under established practices in reapportionment cases generally gave the legislature an opportunity to enact a new reapportionment plan.

Byron R. White:

What would you say — what would you say if the rule should be under Section 5, if the court enters a declaratory judgment, a reapportionment plan in existence is unconstitutional and request the parties, both sides to submit plans and suppose the Attorney General of the State has been in court defending the state plan and he goes back and confers with his legislative colleagues and he comes back to the court with plan and submits it as the states official suggestion to the court for a plan and the other party of course comes back with a plan too.

Now, the court has requested the state to make it is official recommendation of the court.

Now, what is your rule there? Does Connor against Johnson apply or Waller?

Brian K. Landsberg:

Waller.

It would be a plan which the jurisdiction of seeking the courts approval and is there by seeking to administer.

I do not think that this is the ordinary way in which a reapportionment case would be handled.

Ordinarily the court would first —

Byron R. White:

What did you say?

Brian K. Landsberg:

I think that ordinarily the court would first ask or give the opportunity for the state or political subdivision to formulate a plan.

Byron R. White:

Not when, not when there is a — the legislature is not about to meet before the next election?

Brian K. Landsberg:

Well if we are in an emergency type situation that is true.

Byron R. White:

Well, that is not the time?

Brian K. Landsberg:

That is true.

In Connor v. Waller there was an emergency type situation.

William J. Brennan, Jr.:

But how is in a situation Mr. Justice White posed, the Attorney General has been party to litigation and a litigation has resulted in invalidation of the existing legislative reapportionment plan and the request was made to the parties to submit a plan and the Attorney General says, well, if you are going to have a plan, try this one, not something that legislature adopts, but something that he formulates and he submits the plan and that plan is then is adopted by the District Court, is that a — is that wrong under Johnson?

Brian K. Landsberg:

We think it is wrong under the Voting Rights Act.

I do not think that Johnson speaks to it.

I think that the situation that Johnson speaks to is where the court has formally —

William J. Brennan, Jr.:

Or is it a Waller situation when not the state legislature, but the Attorney General formulates and submits the plan?

Brian K. Landsberg:

It is an attempt by the state in the person of it is counsel to administer a change.

William J. Brennan, Jr.:

So make out a Waller situation?

Brian K. Landsberg:

Yes, and I think that that if one looks at the purpose of the Voting Rights Act, the situation which led to it is enactment that the procedures of the Voting Rights Act were intended to apply not just to actions which the state took legislatively, but also to Voting Practices which might be imposed without the authority of state law perhaps by local officials or by local Police juries or School Boards.

Byron R. White:

Suppose the State responds in the example of Mr. Justice Brennan and I were talking about, respondent submits a plan and the court says “Well, there is some good parts to that, but some good parts to the other side too and I am going to put them together and it drafts it is own plan, and it is got — it is half and half, half state, half the other party.”

I take it you would say that the state was wholly disqualified from even submitting the plan to the court until it is gone to the Attorney General?

Brian K. Landsberg:

That is right.

Byron R. White:

So that the states order, the court’s order would be invalid because in part it rested on a state — in part of a state profit plan, that is a very usual situation, you know?

Brian K. Landsberg:

But the court should not rely on the state’s plan until that plan has been pre-cleared, that is what — I think Congress very clearly stated in saying that Section 5 is intended to establish, this is on page 19 of our brief, a form of primary jurisdiction for Section 5 review under which courts dealing with voting discrimination issues should defer in the first instance to the Attorney General or to the District of Columbia District Court.

William J. Brennan, Jr.:

Well, by court that you say, I gather, your submission is that a District Judge not having any legislative plan to propose to replace an invalidated legislative plan can formulate his own and not require — where pre-clearance could not be required only if whatever he formulates has no input at all from the State?

Brian K. Landsberg:

No, I would not think we would go that far, I think —

William J. Brennan, Jr.:

I thought what you just saying —

Brian K. Landsberg:

No, I think that when the plaintiff presents a plan, certainly the state would as a party to the case have an opportunity to comment on any proposals that were made.

If this Court were to appoint a special master the same would be true.

Byron R. White:

Well this — the congressional report is the report to which you refer to says that “Where the District Court directs an entity to adopt, to a adopt a new plan and present it to the court for consideration.”

Now, do you think — now do you think that it was referring to just a business of a — the Attorney General and to request of the court, submitting a recommended plan?

Brian K. Landsberg:

I think that it would cover that as well.

Byron R. White:

It is not adopting a plan; it does not even purport to adopt a plan?

Brian K. Landsberg:

Well, we get the situation and in this case we have two sets of resolutions, one of which says the School Board and Police Jury adopt reapportionment plan and then the next time a resolution is passed by the Police Jury and the School Board saying “We propose this plan.”

Well, it was not formally adopted, but the effect of what they are trying to do in both situations is precisely the same.

Warren E. Burger:

Do I understand you to say that the court could or could not develop a plan on it is own motion?

Brian K. Landsberg:

I think that can only be done as I understand this court’s decisions where there is some sort of an emergency situation it has been unable to get an acceptable plan from the jurisdiction.

In the ordinary case as in this case there was a period of four months between the submission of the plan and the trial on the plan, there was ample opportunity for the political jurisdiction to submit the plan to the Attorney General for his review in the interim.

Warren E. Burger:

Well, if the court was going to develop a plan on it is own motion, would you think the intervention or suggestions from counsel for the State would then make that something other than the court’s plan for an emergency?

Brian K. Landsberg:

I think it would depend upon the nature of the input.

Warren E. Burger:

Well, is not the Attorney General of a State an officer of the court on whom that court is always is entitled to call for suggestions and assistance?

Brian K. Landsberg:

Well, he is, but he is also an officer of the State and counsel for the State and is representing the State in seeking to — permission to administer the plan.

Warren E. Burger:

Your time is up, but I think Justice Stevens had a question for you.

John Paul Stevens:

I did.

Thank you Mr. Chief Justice.

I just want to be sure I understand your position.

Supposing the plaintiffs submits a plan and the defendant, the state subdivision files a memorandum in which it suggests to the court that the plan have certain features in it.

John Paul Stevens:

Could such a memorandum be filed without submitting to the U.S. Attorney General?

Brian K. Landsberg:

A memorandum in effect objecting to —

John Paul Stevens:

Objecting and saying we think the plan the court is to adopt should have features A, B, and C in it?

Brian K. Landsberg:

Well, I think that that would be — that would be a close case.

John Paul Stevens:

So it just goes to the form of the submission by the (Voice Overlap)

Brian K. Landsberg:

What I am trying to suggest that it ought not to be governed by the forum.

It ought to be governed by what the submission really is.

In whatever form it is an attempt by the state to administer a particular voting change and that Congress has said must be subjected to the provisions of Section 5.

Thurgood Marshall:

So anybody can submit anything to the judge, but the State?

Brian K. Landsberg:

Well, that would — we are talking about the unusual situation where the —

Thurgood Marshall:

In the unusual, in your situation —

Brian K. Landsberg:

The state may comment on what (Voice Overlap)

Thurgood Marshall:

The judge can look for advise to everybody in the world except the state?

Brian K. Landsberg:

The court may look to the state for comments on what the other parties have submitted.

Thurgood Marshall:

Well, suppose the comment is I do not agree with that because I agree this, they could not take this?

Brian K. Landsberg:

Well there again, I think we are getting into a close area where one would have to look at the actual document that has been filed.

Byron R. White:

When you are suggesting it, it sounds like when a declaratory judgment is entered the Attorney General should retire the case for a fear of poisoning his holding decrees?

Brian K. Landsberg:

I think not.

I think that, what the structure of the Act is intended to provide as if the Attorney General would submit it to the United States Attorney General who in most instances has approved plans.

If the Attorney General disapproves the plan and the state should have an opportunity to formulate a new one.

Warren E. Burger:

Thank you Mr. Landsberg.

Mr. Ward, do you have anything further?

John F. Ward, Jr.:

I will be very brief Your Honor.

I have somewhat the same problem with the Section 5 argument that Justice White has raised. On the one hand the government says if the court finds a body of malapportioned, orders it to submit a plan, it submits a plan under a lawsuit filed by plaintiff, plaintiffs submit is a plan, so you have an intervener also submits a plan, if the court chooses the plan submitted by the political subdivision it is subject to Section 5 review.

If it chooses —

Byron R. White:

Or any part of it?

John F. Ward, Jr.:

Or any part of it.

It chooses on the other hand the plaintiff’s plan as being the best the plan, it is not subject to Section 5 review.

The same would be true with the intervener plan which begs, it seems to me to beg the question one time, one plan that just took the Voting Rights Act requires clearance by the Attorney General.

Another plan doing — having the same effect or different effect, but in the same purpose is not subject to pre-clearance.

John F. Ward, Jr.:

This case, I think you can decide on its facts even on the record before you without the update.

That the– although opinion of the Fifth Circuit Court Of Appeals which held, which reversed the District Court and held that an At-Large plan discriminates against blacks where blacks are in a majority in population, but slightly less than a majority in registered voters, it is not accord with your previous decisions in White v. Regester, it is arguing over a minimal difference.

For example, the voter registration figures, at that time, 3,342 white, 2,899 black, a 443 more white registered voters than black.

My figures as of, when I filed my brief, new figures with 3,550 white, black rather, 3,533 or a 17 more black registered voters.

If you went to the registered democrats because in my state we are almost a one party system unfortunately, the difference will be considerably greater in number of more blacks registered than white.

But when you go to Mr. Halpin’s figure which he says he got by telephone call from the registrar, it shows as now more white registered voters than black, but again the difference of only 242 between 17 to 242 to 443, that is such a minimal difference that it is virtually impossible and it is inconceivable to me that that makes an At-Large plan constitutionally impermissible, that slight difference.

When a parish with a majority population like this, black and white, pretty near equal, 55-58% black registered voters are going to vary from year to year depending on age of children for one thing.

Another thing that I think that you must remember, before the Court of Appeals, this plan in effect, blacks have been elected to the School Board and have been elected to the Police Jury.

I might direct your attention to the appendix at pages 119 through 121 I believe in which a number of the Police Jury is questioned during the hearing in July of ’71.

As to the town of Lake Providence and which is the only large town in the parish and is questioned as to the black population being virtually almost two to one, greater than white, he testifies also that part of their past history, no black had ever been elected as alderman in the town of Lake Providence even though they were on At-Large and the black majority is almost two to one.

But today gentleman all five alderman are black.

The mayor of the town is black.

The respondent himself who was previously defeated for the office of City Marshall has now been elected City Marshall and is City Marshall today.

I respectfully submit to you that under the facts and circumstances in this case, this plan is not unconstitutional.

The Fifth Circuit;s en banc decision should be reversed and the District Court’s original order implementing this At-Large System should be approved.

Thank you.

Warren E. Burger:

Thank you gentleman.

The case is submitted.