Escambia County v. McMillan

PETITIONER:Escambia County
RESPONDENT:McMillan
LOCATION:The D&B Corporation

DOCKET NO.: 82-1295
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 466 US 48 (1984)
ARGUED: Jan 10, 1984
DECIDED: Mar 27, 1984

ADVOCATES:
Charles S. Rhyne – argued the cause for appellants
Larry T. Menefee – argued the cause for appellees
Thomas R. Santurri

Facts of the case

Question

Audio Transcription for Oral Argument – January 10, 1984 in Escambia County v. McMillan

Warren E. Burger:

Thank you counsel.

The case is submitted.

We’ll hear arguments next in Escambia County against McMillan.

Mr. Rhyne before you open your arguments and before we will start charging you for the time at the moment, we have before us some motion to dismiss this case by a majority of the present Board.

We deferred action on that until today.

I would assume that you are not going to argue in support of that motion.

Charles S. Rhyne:

That is true.

Warren E. Burger:

Is it proposed that anyone present that motion in oral arguments?

Charles S. Rhyne:

Mr. Santurri, who is the county counsel for Escambia County, is here and I suppose if he wants to present it to you, he will be here to present it.

Warren E. Burger:

Very well, then you may proceed with your argument and we will determine later whether we will hear —

Charles S. Rhyne:

Thank you.

Warren E. Burger:

— him.

Harry A. Blackmun:

Mr. Rhyne, in the same — in the same connection, there was a remedial order for which we granted certiorari to review.

That’s now been withdrawn, hasn’t it?

Charles S. Rhyne:

Has what?

Harry A. Blackmun:

Has been withdrawn.

Charles S. Rhyne:

Well —

Harry A. Blackmun:

Is — isn’t there a new plan that the District Court ordered?

Charles S. Rhyne:

Yes they have —

Harry A. Blackmun:

Well, what’s before us —

Charles S. Rhyne:

— have changed it.

Harry A. Blackmun:

— what’s before us then of the order that we (Voice overlap)

Charles S. Rhyne:

The merits of the case.

Harry A. Blackmun:

How can it be if the orders are here?

Charles S. Rhyne:

The — well, I think the merits of the case now are both before you.

But the Court —

Harry A. Blackmun:

Well, how can it be?

Charles S. Rhyne:

— went right ahead —

Harry A. Blackmun:

The order is —

Charles S. Rhyne:

— since we didn’t have a stay.

Harry A. Blackmun:

If the order is not here that we agreed to review, how are we going to reveal it?

Charles S. Rhyne:

Well, the order that you agreed to review was the merits of that at-large elections under the Florida Constitution and that is what I intend to present my argument and address to now.

Well, Mr. Justice —

Harry A. Blackmun:

Well, I have to say it for myself.

It strikes me that the whole thing is moot or at least certainly premature.

Charles S. Rhyne:

Well, I would say that that order is illegal, null and void because the Court that issued it had no jurisdiction to issue it.

Now, Mr. Chief Justice, may it please the Court.

In this case, the appellee’s claim is based upon a complaint that they have been denied access to the full and complete access to the at-large election system provided by the Florida Constitution and to the political process leading to the nominations and elections in the County Commission of Escambia County.

I should have said that Escambia County is adjacent to Pensacola.

It had 205,000 people in it in 1970, 233,000 in 1980, 19.7 of those are Black, in 1970, 16.20% of them were eligible voters, in 1980, 17.2 were eligible voters.

Of the eligible voters, 66.9 of the Blacks are registered, 69.7 of the Whites are registered.

So there’s — on registration and on really participation in the electoral process that way, they’re pretty equal.

Now, first of all, in the second sentence of their brief, they say that they do not contend in this case that any statute or any part of the Constitution has been invalidated.

And so I address myself to jurisdiction.

We are concerned here with the State Constitution of Florida over which Escambia has no control whatever.

The State Constitution requires at-large elections in non-charter counties of which there are 62 and of which Escambia is one.

In connection with that constitutional provision, they have also adopted an election system which is (Inaudible) to carry out these elections.

And so, the requirement of at-large elections and the requirements for carrying it out are entirely state action.

And so we raise the question as to whether or not the requirements of Article III clause 2 or Section 2 Clause 1 of the Constitution has been met because the real controversy here is not between Escambia and these people who claim they have been harmed by the at-large elections which are and put in, maintained, operated entirely by the State of Florida.

Byron R. White:

Mr. Rhyne, I noticed that argument in your reply brief.

I wonder supposing the — Florida had a statute that said no one except Whites can vote and suddenly a Black citizen wanted to vote in Escambia and they didn’t let him.

They sued the local officials.

Could they do that?

Charles S. Rhyne:

Well, they once did have such a —

Harry A. Blackmun:

Well, but would — would they have standing to challenge a statewide statute if the local officials just said, “We’re not going to let you vote because the state law prohibits.”

Charles S. Rhyne:

Well, I think that —

Byron R. White:

Isn’t that your argument?

Charles S. Rhyne:

That kind of statute (Voice Overlap).

Byron R. White:

Maybe unconstitutional.

Well, they contend this is and —

Charles S. Rhyne:

(Voice Overlap)

Byron R. White:

— maybe they are wrong but your argument is that they must sue the Governor and the —

Charles S. Rhyne:

They must sue — well —

Byron R. White:

Why — why in this case and not the one I hypothesized?

Charles S. Rhyne:

The — the — what we have here is a controlling constitutional provision in statutes.

Are all those of the State of Florida?

And under the decisions of this Court, you have got to prove that the injury that you claim can fairly be traced to the challenged action of the defendant and not traced through independent action by some other party.

Now, you have independent action of some other party, the State of Florida here, that controls these elections, — at-large elections internally.

The County has absolutely nothing to do with them.

The State prescribes them, the State carries them out.

William H. Rehnquist:

Well, Mr. — Mr. Rhyne, supposing that the State of Florida had a one year durational residence requirement in order to vote which this Court has held as unconstitutional and someone went to Escambia County and registered to vote without having qualified for the one year and was totally couldn’t register.

Couldn’t he sue the registrar in Escambia County claiming a denial of equal protection or whatever it is, right to travel without joining the Government of Florida?

Charles S. Rhyne:

I think you would have to join the State of Florida, Mr. Justice Rehnquist, because it is a Florida statute that is doing them the harm.

Escambia is not doing anything to him.

William H. Rehnquist:

It takes a lot of our cases involving county officials where they have been defendants and charged with violating people’s constitutional rights have involved them administering state statutes —

Charles S. Rhyne:

Well, it’s —

William H. Rehnquist:

(Voice overlap)

Charles S. Rhyne:

— it’s involved them for this reason, say, like in Rogers versus Lodge.

You had special state statutes applicable only to Burke County.

But this is a statewide constitutional provision.

Thurgood Marshall:

Well, let’s go to another case like primary case, Smith against Allwright was against two local county precinct judges and it involved the primary law of the State of Texas and nobody has ever questioned the jurisdiction until this day.

Charles S. Rhyne:

Well, Justice Marshall, they didn’t administer the —

Thurgood Marshall:

Because they said —

Charles S. Rhyne:

— state statute, but the State does.

Thurgood Marshall:

— (Voice overlap) the user and the other one named Allwright.

And they ended up by being awarded — I mean fined $5 apiece.

Charles S. Rhyne:

Well —

Thurgood Marshall:

But it was the state law which was declared unconstitutional.

Charles S. Rhyne:

Well —

Thurgood Marshall:

In that case, and the Government not only was not a party, but when he came up here, the Attorney General didn’t need more the defendant.

Charles S. Rhyne:

Now, there is a federal statute, Justice Marshall, that requires that any judge before whom the constitutionality of a state statute or the Constitution is drawn in question as 2403(b) must notify the State Attorney General —

Thurgood Marshall:

But they did in that case.

Charles S. Rhyne:

— that this is true so that he can be called to come and defend it.

Thurgood Marshall:

He was notified and he said he did not want to come.

Charles S. Rhyne:

Well —

Thurgood Marshall:

And this Court says come.

Charles S. Rhyne:

I —

Thurgood Marshall:

And he did come.

Charles S. Rhyne:

I think that —

Thurgood Marshall:

What I mean it — it —

Charles S. Rhyne:

— but still is a state statute.

Thurgood Marshall:

— it was a state statute that was involved.

And it was a state statute that was declared unconstitutional.

Charles S. Rhyne:

Well, at state causes —

Thurgood Marshall:

And the precinct judges were found in pari delicto and fine — fined all of the fees.

Byron R. White:

Well, Mr. Rhyne, suppose the — say, we study this out very carefully based on your brief, and I am very interested getting — listening to the merits of the case.

Charles S. Rhyne:

Well, I — I think also, Your Honor, this statement that no state statute or constitutional provision has been invalidated with the judgment below which is the second sentence in their brief is a statement that’s very hard to defend.

The —

Warren E. Burger:

Your central point still doesn’t turn on this subject, does it?

Charles S. Rhyne:

The Court of Appeals and about the third line of its decision says that the lower court declared this constitution and statute unconstitutional and then they affirmed it.

So that statement is wrong.

Now, the appellees throughout their brief have constantly claimed that it is Florida’s Constitution, that’s at-large constitution, that has caused some damage and statement after statement do they make in support of that claim.

For example, two years after this case was filed in their pretrial statement, they say that they’re going to prove their case.

Plaintiffs contend the evidence will show intentional, invidious racial discrimination by the State of Florida, not by Escambia.

Its opposition and subdivision —

William H. Rehnquist:

(Voice overlap)

Charles S. Rhyne:

— that’s according to the following —

William H. Rehnquist:

Mr. Rhyne — Mr. — Mr. Rhyne —

Charles S. Rhyne:

— alternative standards.

William H. Rehnquist:

Mr. Rhyne —

Charles S. Rhyne:

Yes.

William H. Rehnquist:

— this argument, as I understood the response, goes only to whether this is a proper appeal or whether instead it’s a certiorari.

Again, it — it doesn’t touch the merits of the case.

I think all of us hope you will get to the merits pretty soon.

Charles S. Rhyne:

All right, I will — merely in my statement here about the constitutionality question and — and go to the merits.

The aforesaid at-large election system carry forward and perpetuate the effects of past intentual devices employed by the State to discriminate against Blacks.

And so we say under those circumstances, under those conditions, this is Florida’s Constitution, this is Florida’s statutes and not Escambia’s constitution, not Escambia’s statutes.

And then under Article III, Section 2, Clause 1, the federal courts have no jurisdiction.

With respect to the merits, I would first of all address myself to something that they make a lot of in connection with the so-called referendum.

I assume that Mr. Justice Brennan because that’s what you have in mind.

Now, the referendums were not suggested by the Blacks or because it was in discrimination against them.

They had had a referendum on whether or not to consolidate Pensacola and Escambia.

That had been voted down.

And so the Commissioners of the City of Escambia sought ways and means of — of reforming and bringing up to date this whole area.

They’re simply bursting at the seams.

You have an enormous port there, the largest naval-air station in the world, and they needed to reform their — their government.

So, they appointed a charter study committee of five, one of whom was a Black to draw up a new charter for the County of Escambia as they have a right to do.

And this charter committee worked for two years.

And on the 20th of January 1977, they reported that they were divided three to two.

They reported the majority a plan of five commissioners being elected within districts into at-large and particular all the powers that all of these various local officers have to — have to have.

I have written a lot of these charters myself, you have seen a lot of them.

Now, this charter by the majority was rejected by the minority on two major grounds.

Number one, they said “We do not need to charter.

It’s too costly and too complex.”

“We don’t need seven commissioners.

Five is enough.

They ought to be non-partners and elected within the districts.”

And so the Commissioners then appointed another study committee of five.

And that committee tried to put together the ideas of the two — of the two defenders, and the three who were for this charter.

And so they worked for three or four months and came up with a new charter.

Charles S. Rhyne:

And they recommended five elected within districts.

They put in there the main thing.

They put in there that this could never be used to consolidate Pensacola and Escambia.

That seemed to be the major thing that bothered the people there then.

And they also revised throughout the charter.

And when they finished that revision, they called in their staff and had them go over it and finally by August, they were ready to go public, so to speak, with the results of the work on the charter.

And so, they announced that they were going to release a draft of this charter and publish it.

They published it in the newspaper.

It gave out 15,000 copies to various clubs, study clubs and things like that.

And they would then have eight public hearings.

Now, let me stop here to say the big difference between this charter study committee and a chartered commission under Florida law is, a charter commission, you’re required to have 11 to 15 members.

They’re supposed to work for 18 months and produce a charter unless the time is extended.

And then when — they hold three public hearings and they turn the charter in, the Commissioners can’t do anything about it.

They can’t change it at all.

The Commissioners here made tremendous changes in this charter and one of them was to keep the five elected at-large.

Now, the other side pretends this was the– the big thing that was before the people in connection with the referendum which I announced would take place on November 8.

They held these eight hearings.

They were shocked at the fact that only 15 or 20 people came out to the various hearings.

In one of these hearings, three Blacks did appear and say they wanted single-member districts, that Blacks could get a fair deal if they had single-member districts than if they had elections at-large.

And so, after discussion in advertising and this — all that kind of thing and they finally adopted on the 14th of September, a final draft which was published in the newspapers and was given to anybody who wanted to study it.

And that draft was voted on, then in November and defeated.

And so then, we were into 1978 and we come to the pretrial statement of the appellees here.

And again, as in the complaint, a referendum wasn’t mentioned in — in the complaint or the possibility of having itIt wasn’t mentioned in their pretrial statement.

The pretrial statement was just the one that I just read you.

It was all aimed at the State of Florida.

And so at the hearing before Judge Arnow, they asked each one of the commissioners that each testified as to why they favored at-large rather than single-member districts.

And the general purport of it was the problems are at-large and so therefore, the cure must be at-large.

And they —

Byron R. White:

— were found expressly to the contrary.

Charles S. Rhyne:

Pardon?

Byron R. White:

The District Court said that wasn’t so.

So that was inconsistent in — in — with the manner in which the County Commission actually operates.

Charles S. Rhyne:

Well, now —

Byron R. White:

Who — where do we suppose to pay?

Charles S. Rhyne:

What — what he — that one commissioner — Commissioner Beck testified that he went out in selected roads to be fixed and all that kind of thing.

Chairman Kelson and this and the other said, they operated countywide and — and even Beck said he operated countywide.

So that is picking out one statement that the — one of the commissioners made.

And the —

Byron R. White:

But the District Court did say, and I quote him, “Does — that this position, your position, does not stand four-square with the present operation of the Commission in its business.”

That’s what the District Court said.

Charles S. Rhyne:

I didn’t — I am sorry, I didn’t hear it.

Byron R. White:

He said this — the — the — this explanation for at-large elections, the District Court said, “Does not stand four-square with the present operation of the Commission on its business.”

Charles S. Rhyne:

Well, I think that is an enormous statement.

Byron R. White:

We have to do something with that finding.

Charles S. Rhyne:

That’s an erroneous statement by the District Court.

So, then we go to the thing — he held that on the consideration of the charter that the Commissioners had all testified that they kept five for good government reasons and he also pointed out that they filed a post-trial memorandum.

And once they said that they wanted to keep the five to protect incumbency.

The Court of Appeals, when they got that, they said they had read the entire testimony.

They found no evidence whatever of racial motivation on the part of the Commissioners and that protecting one’s incumbency didn’t mean Blacks require Blacks, and so therefore, reversed.

They did grant a rehearing.

They did grant comments only on the Rogers versus Lodge and not a — not a rehearing at all.

And in — in doing so, they decided that the Rogers versus Lodge was different from White verus Regester and Whitcomb versus Chavis and the other cases like Mobile versus Bolden and therefore, had given them a — a broader way to uphold, give greater deference to the finding of district courts.

And they said, we’re not taking back our statement about the incumbency and they didn’t take back their statement about having read all the evidence and found no racial motivation.

They said they consider the broader range evidence.

The broader range of evidence was all of this discriminatory action by the State over the past 100 years.

Their brief, over and over again, talks about the discrimination, the Black Crow laws, the poll tax laws, the White Supremacy, primaries and all those things, Justice Marshall.

For the past 100 years, the discrimination against Blacks throughout Florida and they didn’t tie that in to Escambia at all.

John Paul Stevens:

Mr. Rhyne —

Charles S. Rhyne:

And so —

John Paul Stevens:

— can I — can I interrupt with a — with a question?

John Paul Stevens:

What do you understand the constitutional issue to be?

Is it the —

Charles S. Rhyne:

The constitutional issue to be is equality —

John Paul Stevens:

No, but I mean —

Charles S. Rhyne:

— are the voters —

John Paul Stevens:

— no, let me — let me —

Charles S. Rhyne:

— treated equally in their —

John Paul Stevens:

— put it a little differently.

Well, I understand it.

What do you suppose the case turns on?

Does it turn on whether one or more members of the Commission, adds the wrong kind of motivation?

Is that the whole case?

Charles S. Rhyne:

I don’t think so.

I think that —

John Paul Stevens:

What do they have to prove to win in your view?

Charles S. Rhyne:

I think that we had to prove that —

John Paul Stevens:

No, what do they have to prove to win?

Charles S. Rhyne:

Oh, they had to prove that they were discriminated against, that they did get a full and fair opportunity at the polls.

Now, there were — as I say, it’s — it was 66% —

John Paul Stevens:

Well, do — do you think they just had to prove adverse effect?

Charles S. Rhyne:

What?

John Paul Stevens:

Adverse effect on their voting?

Charles S. Rhyne:

Yes.

John Paul Stevens:

Is that all they had to prove?

Charles S. Rhyne:

More were registered (Voice Overlap)

John Paul Stevens:

Well, I understand.

Charles S. Rhyne:

Pardon?

There was no —

John Paul Stevens:

I’m trying to understand the theory of the case —

Charles S. Rhyne:

Yes.

John Paul Stevens:

— is what I’m saying, and I’m trying to — first, to understand what you understand their burden to be.

What did they have to prove in order to —

Charles S. Rhyne:

They had to prove that there were some racial reasons to keep them from the polls and from them having equality.

John Paul Stevens:

Racial reasons held by whom?

You say I take it the state’s racial reasons would be irrelevant.

Charles S. Rhyne:

Well, I think they had to prove they were held by the people in Escambia.

John Paul Stevens:

Now, by that you mean the five commissioners or the voters?

Charles S. Rhyne:

The five commissioners and the State itself, since everything was run by the State.

John Paul Stevens:

Well, you said they had to prove that there was discriminatory anomies on the part of the State and all five commissioners, three commissioners or one commissioner.

Charles S. Rhyne:

Well —

John Paul Stevens:

What is your view?

Charles S. Rhyne:

There were only four of them at the time this came along, so —

Byron R. White:

Well, what do you think they had to prove?

That’s all I’m trying to find out.

Charles S. Rhyne:

Well, they had to prove some racial discrimination against them that prevented them from having an equal vote.

They — they didn’t have equal access to the nominating and election procedures.

And the —

John Paul Stevens:

But we know what the voting was.

Does the subjective state of mind of anybody make any difference?

Charles S. Rhyne:

The projected state of mind —

John Paul Stevens:

Subjective, subjective, the actual motivation of any individual, does that make any difference in the outcome of the case?

Charles S. Rhyne:

Well, I — I would say that it did.

I think the — the — to show the one difference at least, the legislative committee came along and proposed a new referendum which —

John Paul Stevens:

Well, I understand it’s your position that there was no adverse, no wrongful motivation.

I am just trying —

Charles S. Rhyne:

That is correct.

John Paul Stevens:

— to understand what your legal theory is as respects what they had to prove in order to prevail.

Charles S. Rhyne:

They had to prove that the State itself which — what this system maintain it and operate.

It did so for racial discrimination —

John Paul Stevens:

And if they proved that —

Charles S. Rhyne:

— purposes in Escambia.

John Paul Stevens:

— and if they proved that, are they entitled to prevail?

Charles S. Rhyne:

Yes.

John Paul Stevens:

That means we don’t have to examine the motivation of the county commissioners if I understand you.

Charles S. Rhyne:

Well, I think that — I think that’s a part of it.

But you don’t have any — any racial discrimination in — in Escambia at all.

And so I think that — that they had to —

John Paul Stevens:

Did I understand —

Charles S. Rhyne:

(Voice overlap)

John Paul Stevens:

— you to be conceding they don’t have to prove any in Escambia either.

Charles S. Rhyne:

Pardon?

Yes, they do.

Yes.

They have to prove that their —

John Paul Stevens:

It — it seems to me you have given me two or three different answers to it.

Do they or do they not have to prove that members of the country commission were prejudiced against Black citizens?

Charles S. Rhyne:

Yes.

John Paul Stevens:

They do have to prove that?

Charles S. Rhyne:

Yes.

John Paul Stevens:

And how many commissioners do they have to prove with that kind of motivation?

Charles S. Rhyne:

Well, I — I would say they had to prove a majority of them and I think that this case, and I hope when the Court thinks about it really turns on the jurisdictional point that the State controlled everything and that the Escambians had nothing to say about it.

There was no complaint from anybody about the polls and about voting, no impediments, whatever, no complaints about the — the services rendered, no complaints about access.

All the complaints were related to the State.

Warren E. Burger:

Mr. Menefee.

Larry T. Menefee:

Mr. Chief justice, and may it please the Court.

I would like to discuss the merits of the case.

There are two substantive issues one involving decision on liability and the second is involving the decision on the remedy.

First, concerning the decision on liability, we contend that the judgment should be affirmed under the doctrine of (Inaudible) and Rule 52 of the Federal Rules of Civil Procedure.

The District Court made an intentionally local appraisal was — and the district judge lived in the community.

And on the basis of that concluded that the at-large election system had both the purpose and effect of deluding Black voting strength and the Court of Appeals affirmed.

Larry T. Menefee:

The District Court had before it substantial evidence which in summary showed the following.

First, historically, the election structure had been manipulated at every opportunity to minimize Black participation.

Second, the two charter study committees in 1975 and 1977, which has been referred to in Mr. Rhyne’s statement, had both made recommendations for single-member districts and the rejection of those recommendations was taken for the purpose of continuing the delusion of Black voting strength.

Third —

William H. Rehnquist:

When you say rejection, Mr. Menefee, rejection by whom?

Larry T. Menefee:

The county commission rejected the recommendations of the charter study commissions.

William H. Rehnquist:

And do you — you say that the record supports to find that the reason for their — for their rejection is recommendation was racially motivated?

Larry T. Menefee:

We believe that — yes.

The — the district judge’s conclusion that that motivation was infected with discriminatory anomies is supported.

Yes, sir.

John Paul Stevens:

May — may I ask you the same question I asked your opponent?

Larry T. Menefee:

Yes, sir.

John Paul Stevens:

How many people voted against the — who participated in this decision from the commission?

Larry T. Menefee:

It’s my understanding that both times it was a unanimous decision by the county commission.

John Paul Stevens:

And it would have been sufficient to establish your case to prove that two people had the wrong kind of motivation?

Larry T. Menefee:

Your Honor, I don’t think it is —

John Paul Stevens:

What if one of them came in and frankly testified that he wanted to preserve White supremacy in the — in the county.

Would that be enough?

Larry T. Menefee:

I believe under existing case law, that’s correct.

John Paul Stevens:

That it would be enough?

Larry T. Menefee:

Yes, sir.

John Paul Stevens:

Do you interpret the District Court having found anything more than that?

Larry T. Menefee:

More than one person?

John Paul Stevens:

Yes.

Larry T. Menefee:

I don’t believe the District Court is clear how many.

I don’t believe it identified the number of actors.

I believe it did identify the actors and I believe it did it in a contextual sense of a long history of similar decisions being made in regard to county government in particular and other contemporary events that the district judge lived in that community and saw with regard to the city government change and of the school board change that also took place at the same time.

John Paul Stevens:

Well, you — you contend, if I understand your brief correctly, that even if none of the five had the wrong kind of motive, that’s still, the state practices were sufficient to condemn the plan.

Is that correct?

Larry T. Menefee:

Yes, sir, I believe so.

Larry T. Menefee:

I believe it would be.

And if I’d misunderstood your question from the beginning, I felt the question was what was shown and I believe it was shown –

John Paul Stevens:

Well, very — very frankly, I think it’s important to know when we say there’s an invidious purpose, whose purpose we’re talking about and how much — how many people we have —

Larry T. Menefee:

These purposes how much —

John Paul Stevens:

— I think the law is unclear and I’m trying to find out what the record in this case is and what the parties are contending, that’s all.

Larry T. Menefee:

Yes, sir.

Sandra Day O’Connor:

Mr. Menefee —

Larry T. Menefee:

Yes, ma’am.

Sandra Day O’Connor:

— if the District Court only found that the Commissioners failed to recommend the single-member district plan to the voters, why should the remedy by the Court be anything other than telling him to submit it to the voters?

Larry T. Menefee:

It is a continued maintenance of the at-large election system.

It was not merely a failure.

It was indeed a rejection or overturning if you will.

That would be the way I would refer to cast —

Sandra Day O’Connor:

Well, if the offense was simply not submitting it to the voters, I don’t know why the remedy wouldn’t flow from that.

Larry T. Menefee:

Justice O’Connor, I think what it — what it shows and putting — in this long historical record that is in this case, and I don’t believe has been in another case before this Court.

Every time the elections — there was an opportunity for Blacks to participate in the election system, the system changed to minimize their participation.

This is the most recent example.

Putting that context, this was a continued maintenance of the discriminatory system.

Sandra Day O’Connor:

What happened in the most recent election under the new plan?

Was a Black elected?

Larry T. Menefee:

Yes, in Fort — a Black was elected for the first time in recorded history.

Six Black candidates sought election.

A 150% more than it had ever sought election to Escambia County Commission in all of history.

It was a significantly different election.

Voter turn — Black voter turn out was (Inaudible)

Sandra Day O’Connor:

Is the case now moot because of the withdrawal of the District Court order in your view?

Larry T. Menefee:

I believe the remedy issue is probably moot.

I had little concern about the — using the precise term.

I believe the remedy issue is moot.

I believe the liability issue is alive with the exception of the pending motion for dismissal.

Larry T. Menefee:

I don’t believe that — I — don’t think that —

Okay, may I ask — do I correctly read that this Court is resting its conclusion of law upon a violation of amended Section 2 of the Civil Rights Act?

Larry T. Menefee:

No, Your Honor.

Well —

Larry T. Menefee:

I’m sorry the District Court.

May I ask — what I’m look — looking at is that 101a of the appendix with respect to 42 U.S.C. 1973, the Court concludes that the plaintiffs have established claims relief under this section?

Was the — was that finding your liability, not on the constitutional ground but on that?

Larry T. Menefee:

The District Court found liability under the unamended Section 2.

Yes.

Larry T. Menefee:

And on the Fourteenth and Fifteenth Amendments.

Under both?

Larry T. Menefee:

Yes, the Court of Appeals —

Never addressed the statutory?

Larry T. Menefee:

Never addressed the statutory and only found on the Fourteenth Amendment.

Well, ordinarily, I think courts addressed statutory —

Larry T. Menefee:

Yes.

— grounds before they address it constitutionally.

Larry T. Menefee:

Yes, the — well there’s a long footnote in the Court of Appeals’ opinion about why they would not ask for further briefs to address the — the recently amended Section 2 claim.

And quite candidly, this case is, perhaps, in some way almost a dinosaur.

I mean, the amended Section 2 is not here.

I really believe that what this Court is going to see in the future will be cases coming under the amended Section 2.

I don’t believe —

But don’t you rest on the amended Section 2?

Larry T. Menefee:

Your Honor, yes, we believe the courts —

(Inaudible)

Larry T. Menefee:

We have not briefed it and we filed our complaint under Section 2 and we believe the amended Section 2 —

Is a fortiori?

Larry T. Menefee:

Yes, it’s — it’s — we would prevail on that whether this Court wants to consider it or whether if you want further briefing and send it back to the Court of Appeals to address that issue now, but I think —

(Inaudible)

Thurgood Marshall:

You’re talking about their liabilities (Inaudible), what do you mean by that?

Thurgood Marshall:

Did you sue for damages?

Larry T. Menefee:

No, sir, I just meant that the initial —

Thurgood Marshall:

Well, what was the liability that’s still open?

Larry T. Menefee:

I don’t believe — no, in my opening statement, I only meant to address a violation or not of the Fourteenth Amendment.

Thurgood Marshall:

Well, then I ask you, what is now open before us?

Larry T. Menefee:

Before this Court is that question of —

Thurgood Marshall:

What question?

Larry T. Menefee:

The question of whether or not the Fourteenth Amendment was violated and whether or not the at-large election system denies equal protection of law.

We believe the remedy issue is moot.

Thurgood Marshall:

Well, is that — you’re talking about the order that’s been withdrawn.

What order — what order is now denying your people any rights?

Larry T. Menefee:

The — the order that I understand is before the Court is the judgment from the Court of Appeals that reached both the liability and remedy.

And we think subsequent events have mooted the remedy question.

We think the remedy issue — the liability issue is still before the Court.

Thurgood Marshall:

And what — what remedy do you want?

Larry T. Menefee:

We want —

Affirmance.

Larry T. Menefee:

Yes, affirmance from — and continuation —

Thurgood Marshall:

An affirmnce of what?

Larry T. Menefee:

Of the District — of the District Court’s remedial order, the District Court’s remedial — the District Court’s —

Thurgood Marshall:

Is that the one that’s been withdrawn?

Larry T. Menefee:

We are affirming — I’m sorry, we’re affirming the Court of Appeals, the — the judgment of the Court of Appeals is — is where we stand.

Thurgood Marshall:

But is (Voice Overlap)

Why do you think — why do you think the remedy order is moot?

Larry T. Menefee:

The — because of the subsequent — I — I hate to use that —

Byron R. White:

Yes.

Larry T. Menefee:

— the term moot is maybe slightly —

Byron R. White:

Did the District Court —

Larry T. Menefee:

— technical but I’m willing to go.

Byron R. White:

— did the District Court withdraw its order?

Larry T. Menefee:

No, Your Honor.

It did not withdraw its order.

It was — as I — it wasn’t even — before the District Court to withdraw in that sense, the 1980 census came out, a new district in plan had to be fashioned.

The county commissioners submitted another plan.

A new plan had different boundaries, was considered and rejected.

The five-two plan was rejected for different reasons and the reasons that are before the Court for this and it’s presently pending before the Court of Appeals for the Eleventh Circuit.

Byron R. White:

And why do you think there’s anything left to the case?

I mean I’m not just talking just the remedy?

Larry T. Menefee:

Yes — yes, I’m only cautious, perhaps.

I — on the remedy issue, I don’t.

Byron R. White:

Well, what about you say liability, why is there anything left to that?

Larry T. Menefee:

I think — well, I think this Court could determine — I think this Court could determine that the decision below is erroneous.

They accepted all of the arguments and vacated all of the orders below and order reestablishment of the at-large election system.

Now, that does not reach the question of whether the appeal can be —

Byron R. White:

I see.

Larry T. Menefee:

— maintained by the two minority members —

Byron R. White:

If — if this — if we disagree to the Court of Appeals and said there was no intention for discrimination, never should have been an — this establishment of the at-large election system, the new election would be beside the point.

Larry T. Menefee:

That’s — that’s correct.

The Section 2 issue would still remain.

Byron R. White:

I — I agree with you.

William H. Rehnquist:

In the 1980 redistricting was — in — in the adoption of the single-member district under 1980 plan was under somewhat of the force of the District Court’s order in this case.

Larry T. Menefee:

That’s correct.

After the Court of Appeals issued its opinion and the mandate issued, now the Court of — the District Court asked for new plans in light of the 1980 census and for schedule.

Byron R. White:

(Inaudible) how can the three new commissioners are a product of what — what he’s claiming to have been an illegal election?

Larry T. Menefee:

I — well —

Byron R. White:

Or an illegal system?

Larry T. Menefee:

Yes, sir, I — without quibbling over illegality —

Byron R. White:

Yes.

Larry T. Menefee:

— term, yes, sir.

I — I think — I guess that would be their position.

Larry T. Menefee:

I don’t want to argue this case on — but —

Byron R. White:

Mr. Menefee, you just said Section 2 issue would — would remain, since the Court of Appeals never addressed the Section 2 issue, am I correct?

It did not.

Larry T. Menefee:

Yes, that’s correct.

It went to the constitutional issue.

Larry T. Menefee:

That’s correct.

Why don’t we follow what — I’d often — we will do when we tell Courts of Appeals they have to address statutory before they reach constitutional issue.

Why don’t we send it back (Inaudible)

You said that Section 2 issue at least is still in the case and let them decide.

Larry T. Menefee:

We believe the case is so strong, we’d be glad for you to go ahead and rule in our favor on the constitutional issue, but certainly that is a common — I understand a common practice.

Thurgood Marshall:

All that we then have in the Court of Appeals is to issue an advisory opinion.

What else is there but an advisory opinion?

Larry T. Menefee:

Well, because of the — because of the — what I understand.

Thurgood Marshall:

But we can issue advisory opinions then I do not think we can deal with the Court of Appeals.

Larry T. Menefee:

Because of the established practice of desiring a decision on statutory rather than constitutional grounds that — that may warrant that practice.

The other principal evidentiary facts that —

Byron R. White:

And you want the — the single-member district system to stay in place?

Larry T. Menefee:

Yes, sir.

Byron R. White:

And if you lose this case, it may not stay in place.

Larry T. Menefee:

That’s correct.

Byron R. White:

If we reverse the Court of Appeals.

Larry T. Menefee:

If you reversed on constitutional order —

Byron R. White:

Then you’re back to square one.

You’re back to square one when you started this lawsuit.

Larry T. Menefee:

That’s right, sir.

Continuing with the list of the evidentiary factors that are in this record, there’s a massive record of racially polarized voting.

It is my best judgment that over 200,000 groups of data were entered into the computer for the 168 regression analysis.

No Black has ever won election to the Escambia County until the elections this past fall under the single-member district plan.

There is substantial evidence of socioeconomic disparity between Black and White citizens.

There are evidence of significant barriers to Black candidate recruitment, Black voter turnout, and Black political participation.

Larry T. Menefee:

Also the system features numbered place and majority vote requirements which have no rational basis other than to protect the entrenched majority briefly address the —

William H. Rehnquist:

When you say protect the entrenched majority, I think the Court of Appeals spent some time in this that several of the Commissioners voted against the new plan because of their desire to preserve their incumbency.

I — I didn’t see that that was necessarily a racial factor at all.

I mean they might well have wanted to preserve their incumbency against Blacks or Whites.

Larry T. Menefee:

I don’t think that factor standing is that — I agree with you in the — to that extent, Justice Rehnquist.

That statement of I want to protect my incumbency, I can’t say that that is racially motivated.

I think the problem the District Court found is that the statements were inconsistent.

They did not stand four-square with the operation of the County.

It wasn’t a very credible performance.

So that was their proffered reasons were disbelieved.

The District Court had not only the testimony of those four commissioners.

Members of those charter government study committees testified.

The transcripts of public hearings were before the district judge and the final reports of those study committees were there.

William H. Rehnquist:

But I thought either the District Court or the Court of Appeals and I can’t remember which, puts some weight in putting together the discriminatory calculus on the fact that they thought the — the Commissioners were against the plan for single-member districts because the Commissioners wanted to hang on to their jobs.

Larry T. Menefee:

Well, that factor is discussed I believe in both opinions, prominently also in the District Court opinion, but I know — I don’t believe — I — I do not — I don’t think any — either of the courts equated the desire to maintain incumbency with a — with that direct ratio.

It’s not a straight linear — linear equation, if you will, with racial analysis.

It is a contextual thing of the incredible testimony or lack of credible testimony that the Commissioners gave their testimony from the other witnesses that took the stand that were served on this committee, of written reports, the public transcripts, the actions taking place in the city and the school board near the same time, a long historical evidence and then the whole line of indicia that the Court considered in Rogers v. Lodge.

The — the line of indicia that’s come down from — from White, White we registered through Rogers v. Lodge, the polarized voting, Black to Black candidates, socioeconomic disparity and — and that sort of thing.

And all of that’s in this record, plus this historical, both, if you will, ancient historical and contemporary evidence of intent.

John Paul Stevens:

May I ask just to refresh my recollection.

Is there a residency requirement in the — with the five — the commissioners just — or just the numbered polls?

Larry T. Menefee:

The — oh, yes, sir.

I see, but yes there was a residency.

There was a residency requirement attached with the at-large system.

They had five residency sub-districts.

John Paul Stevens:

Is there any — a sort of an inconsistency between running a government, say, it’s a community-wide thing and also a local district?

Is there any explanation of why they have that specific combination?

Larry T. Menefee:

I — not in the record.

The — the only explanation I’ve ever heard is — has — has been referred to an opinion so everybody can live in the same block, but that’s the very inconsistency that the district judge focused on when he heard these Commissioners talk about how they’d go back into their district and they called it their district and see about their neighbors’ road and repair this bridge or what have you.

And then run at-large and take an oath under the Florida Constitution to represent the entire county.

John Paul Stevens:

When the — during the period that the White primary was enforced, primary with voting was — was that by district or at-large?

Larry T. Menefee:

That on — as the District Court called it anomalous situation from approximately the turn of the century, after all the — most of the disenfranchising devices had taken effect.

Blacks were removed from the electorate.

Then they went to the situation where the all-White democratic primary was conducted from single-member districts.

But the general election which, in my part of the country didn’t mean a whole heck of a lot back then, was conducted at-large.

They’d let Black folks vote in the general election, but not in the single-member district democratic primary which it was the effective, the election that really counted.

There are three principal historical era — eras, if you will.

From the Civil War to the turn of the century, Blacks were allowed to vote.

They were registered and in some North Florida counties, constituted a majority of the voters.

The fear of perhaps Black getting elected and holding a county commissioner or school board office, they didn’t even hold elections then.

They had them by gubernatorial appointment because the State of Florida was majority White.

Then once Blacks were disenfranchised, at the turn of the century, they went to this anomalous system of single-member district primary elections and at-large general elections.

Then World War II, veterans returned, Black veterans returned and want to participate in government, Smith, the all rights strikes down, the all–White democratic primary and the rules of the game are changed again.

This time they abolished the single-member district democratic primaries and go to the at-large democratic primaries.

So that — those three major historical shifts, put in the context with the manipulation, if you will, of these charter government study committee reports, the very specific contemporary evidence of a similar change in the City of Pensacola Government in 1959 and the School Board of Escambia County in 1976, that’s the contextual arena that the district judge had to — made this finding (Inaudible) and that doesn’t even touch the polarized voting and lack of Black candidates, no Blacks having ever been elected, the other factors that this Court has referred to in other opinions.

The — I would note some of the other evidence in the record.

I’ve mentioned the substantial record on polarized voting approximately 168 regression analysis, not only did that measure a polarized voting and produced scattered diagrams for all of those elections, we also ran a test to measure voter turnout.

This was confirmed by other studies and it showed that Blacks turn out at a rate of approximately half that of White voters and this we think is a significant measure of Black political participation.

It’s one thing to have a voter registration drive to urge people to go down and get their names into polls, but the degree that people are hooked into the political system, the degree that they vote and participate — political scientists call it political socialization.

I grew up in a house where my parents sat around the table and we’d talk politics and you had a duty to go vote.

That’s essentially the kind of institution that has not been present, as present in the Black community and it hasn’t been present because Blacks haven’t been seeking office or candidates who addressed the interest of Black citizens haven’t been seeking office.

And we did run tests on some White candidates who had — generally they were presidential candidates or outside of Escambia County jurisdiction.

The same phenomena occurs.

In many cases, Black voters will go to the poll and if there’s a candidate that has addressed their interests, they will vote in that race.

But contrary to the behavior of most White voters, they would not pull the lever on all those other races that are on the ballot.

And that’s what these social scientists or whatever talking about in terms of political socialization.

How involved are you in the system and you had the opportunity to work on a campaign or get involved with and see that your interests are at stake.

It’s like, I believe, Justice Marshall referred to in Bolden v. City of Mobile casting meaningless ballots and I’m afraid that that’s the way most of the Black voters in Escambia County, Florida view their situation under the at-large situation.

Lewis F. Powell, Jr.:

Mr. Menefee, it’s not your position I take it that at-large elections are per se invalid.

Larry T. Menefee:

Absolutely not, absolutely not.

Lewis F. Powell, Jr.:

Tell me this.

I have never been to your county.

In some counties in Florida, you have very substantial Spanish-American citizens.

Do you have those in your county?

Larry T. Menefee:

I — I don’t know the exact figure, but no, it’s a small — small portion of population.

I think less than 1% or 2%.

Lewis F. Powell, Jr.:

If you had the same percentage of Mexican — of Spanish-American citizens, would they be entitled to a separate district?

Larry T. Menefee:

Well, I think there are a number of problems.

With the disclaimer, that’s not part of our case, but — but proceeding beyond that to address it, yes, sir.

Certainly, Mexican-American citizens, like all citizens, can assert a claim under the Fourteenth Amendment.

In formulating a remedy, I think this Court has wisely adopted the policy of favoring single-member districts.

It’s a — it’s a simple straightforward method.

If there are residential concentrations, if it has been shown that Mexican-Americans have been excluded from the political process over a period of time, substantial period of time, we’re not talking about an episodic event that occurs once.

I’m not talking about (Inaudible), then yes, if it — if the — and if they’d state a claim, I mean if they’d come forward and — and joined in the litigation, I’m not sure of the full range of your hypothetical, Justice Powell.

Lewis F. Powell, Jr.:

But I know that Section 2 of the Voting Rights Act has not held, but as I understand that section, we’ve never interpreted it, but my understanding of it is that discriminatory intent is irrelevant.

What counts is the effect, so that the effect would be the same under that section.

Larry T. Menefee:

Section 2 has —

Lewis F. Powell, Jr.:

Then you had just to carry it a little farther, what puzzles me about this whole area of the law is how far it may be carried the majority voting in the United States has always been the norm.

Suppose you had 19% of Orientals and so on down — down the road, are we going to fractionate indefinitely the population to that extent?

Larry T. Menefee:

Those are difficult questions and I don’t believe that they have to be —

Lewis F. Powell, Jr.:

They don’t have to be answered today.

Larry T. Menefee:

Today, thank goodness.

Section 2 does have either standard purpose or effect.

So you — you can prevail under either standard under Section — under the amended Section 2.

But I think the fundamental question is found, effective representation.

And as this Court has had to deal with since Baker versus Carr, and Reynolds versus Sims, stay on effect of representation is, in those cases focused on numerical figure of maximum deviation from an ideal district.

Now, every citizen has a right to that and it is just as possible to gerrymander districts by having one giant district, having five smaller districts or even as one plan that was submitted and I think later withdrawn early in this litigation by the county.

We call it the ban to (Inaudible) plan, proposed having one district in the middle of the county that would be Black and the other four commissioners would be elected at-large from the rest of the county.

That plan was withdrawn perhaps after we named it the (Inaudible) in playing up to the South African homelands.

But these systems can all be manipulated.

Larry T. Menefee:

It is as much a political decision to have an at-large system as it is, to have district system and as much a political decision is to how the district lines should be drawn.

So we have had — this Court has developed a long line of cases from the one person, one vote concept and has had a rather easily manageable — rather easily manageable standard judicially manageable standard of numerical equality.

But Black citizens have a strong claim to protection under the Fourteenth Amendment and what this case shows is that at-large election systems can have and has had in this case for many, many, many years, far more than a decennial census, the opportunity to dilute the vote of the minority to deny the equal protection under the law.

If you have no further questions, Thank you.

Warren E. Burger:

Do you have anything further, Mr. Rhyne?

You have only one minute remaining.

Charles S. Rhyne:

In that one minute, I want to say that all of the matters that you have been referring to of discrimination were state action and not action by Escambia County.

Warren E. Burger:

Mr. Santurri, are you prepared?

Does your constituency wish to be heard on the oral argument to — to dismiss on an oral argument to dismiss the case?

Thomas R. Santurri:

Mr. Chief Justice, I am prepared to — to address the motion to dismiss.

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

Florida law is clear that a county has no voice, can take no act except as directed by the Board of County Commissioners.

In this particular instance, an election was held.

The composition of the Board of the County Commissioners has changed what had previously been in the unanimous decision to carry forward the appeal on this matter has now changed and majority of the Board of the County Commissioners voted in a legal meeting to dismiss this appeal.

And —

William H. Rehnquist:

But for the present majority, is it owes its office to the — the fact that the Court imposed the single-member district plan, does it not?

Thomas R. Santurri:

Mr. Justice Rehnquist, that is a yes, but it’s a qualified yes.

The former members, that is, all five members of the Board of County Commissioners and we have a five-member system in — in Escambia County.

They were only in office but for the fact that the elections had been staged.

Those elections probably would have been heard or would have been had well before 1983 but for the order.

William H. Rehnquist:

On an at-large?

Thomas R. Santurri:

On at-large basis, yes, and — and I might point this out to the Court that the — all the incumbents ran on a platform that was constituted of or consisted of saying that they intended to maintain this lawsuit and all except for one was defeated.

The three of the — of the majority members, they made a very strong point that they had had enough of this lawsuit and they thought Escambia County had and they wanted to withdraw it.

Now, I did mention the majority of the Board of County Commissioners voted.

Florida does not recognize majority-minority positions on its Board of the County Commissioners.

There is one position of the Board of County Commissioners and —

Warren E. Burger:

To decide that position, must it not?

Thomas R. Santurri:

That is — that is correct, Mr. Chief Justice, the majority must, but the board —

Warren E. Burger:

So there is — there is a position of the County Commissioners before the Court, now, today?

Thomas R. Santurri:

That is correct.

Warren E. Burger:

And the position is to dismiss the appeal.

Thomas R. Santurri:

Yes, sir, to dismiss the appeal.

Florida law is — is clear that an individual member of the Board of County Commissioners has no authority.

William H. Rehnquist:

Well — well what — what you say will — would make a great deal more sense to me if you’re talking about an orthodox appeal where the county, say, had a money judgment against them or do we appeal from the District Court of the Eleventh Circuit?

Do we appeal to the Supreme Court of Florida?

And then a new group of commissioners is, like they say, this lawsuit just isn’t worth what it’s cost us.

Let’s give up the appeal.

Surely, the — the county ought to have the final say in that.

But here, in effect, if the principle you’re contending for is correct, the District Court could impose a perfectly outrageous redistricting plan on Escambia County, put it into effect, the new commissioners all come into office by virtue of that plan.

When they get in, they vote to abandon the appeal.

So that in effect, the District Court’s judgment is never reviewable.

Thomas R. Santurri:

Justice Rehnquist, I think it is.

There is — there is a vehicle.

There is a legal means by which this election can be attacked.

But in this particular case, the position we’re at now, with all the parties being realigned or misaligned, I don’t think that the correct pleadings are before this Court to —

Byron R. White:

If the case is moot?

Thomas R. Santurri:

As Mr. Menefee said, I hate to go into the — to use that term mootness.

I’m just concerned about the underlying court decisions or what effect it may have if this Court or if — if we were to urge it to dismiss as moot.

Byron R. White:

Well, I — I think if you — you’re going to say it’s moot, why, we would vacate the judgment of the Court of Appeals, direct the Court of Appeals to remand it to the District Court with instructions to dismiss the entire case.

And if the case isn’t moot, I don’t know what business we got in dismissing it.

Thomas R. Santurri:

The — what I would suggest is that the persons that attempting to maintain the suit do not have the requisite interest in this particular case.

Byron R. White:

Well I — didn’t the District Court — aren’t the individual — the individual commissioners, all commissioners were parties (Voice overlap)

Thomas R. Santurri:

That is correct.

Byron R. White:

And it was maintained in their individual capacity, not just their official capacity.

Those two are still members of this — still parties to this lawsuit, aren’t they?

Thomas R. Santurri:

Justice —

Byron R. White:

— aren’t they?

Thomas R. Santurri:

Justice White —

Byron R. White:

— aren’t they?

Thomas R. Santurri:

— that is correct.

Thomas R. Santurri:

That is correct, but —

Byron R. White:

All right, so apparently somebody like the district judge thought they had an interest in their individual capacity, wholly aside from their position as commissioners.

Thomas R. Santurri:

Well, I’m — I’m bound by what the judge found and — and what it is — is in the record and as — as you’d probably note in the supplemental brief as filed by the appellees, there was an excerpt from Judge Arnold’s order and he stated that his only reason for keeping them in there was not for any liability that they face as far as costs, attorney’s fees or any individual liability.

He only left them in, in order that he could enforce his injunctions against them personally in the event that the Board of County Commissioner was to take a position contrary to his orders.

Byron R. White:

Well, hasn’t he got a — haven’t that — those two got a — got some interests in having the injunction that was outstanding against them lifted?

I would and you — I would take you wouldn’t like to be under some injunction that — that it’d illegal, would you?

Thomas R. Santurri:

That is correct, however —

Byron R. White:

Well, why is — why — why is the case moot then?

If you want to say it’s moot, you got to say it’s moot.

Then we can — to get — really get rid of these judgments.

Thomas R. Santurri:

I do believe the — the mootness issue was — was addressed in the appellee’s brief.

William H. Rehnquist:

Well, you’re — you’re not — your — your position as I understand, isn’t that it’s moot, it’s that you are the party that said that one time you represent the party that sought the challenge to the Court of Appeals for the Eleventh Circuit’s judgment.

Your client has not changed its mind.

It no longer wants to challenge the Court of Appeals judgment.

Thomas R. Santurri:

That — that is correct.

William H. Rehnquist:

That doesn’t mean it’s moot.

It just means you want to give up the — the petition.

Thomas R. Santurri:

It’s worth — we’re tired of the lawsuit, in other words, and we want to withdraw.

Byron R. White:

Well, all you want — all you want is dismiss the appeal of this Court period.

Thomas R. Santurri:

That’s correct.

I don’t want to go —

Byron R. White:

And let stand everything that had happened below.

Thomas R. Santurri:

That is correct, Your Honor.

John Paul Stevens:

The thing is you don’t to represent the two individual commissioners.

Thomas R. Santurri:

I represent the Board of County Commissioners.

John Paul Stevens:

Yes, well and we have two individual commissioners who are parties in their own right.

Thomas R. Santurri:

But we’re saying that they do not have the requisite interest in this particular case to — to force the county to — to keep pursuing the appeal.

Warren E. Burger:

Well, to pass on the issue that you’ve raised, the Court would have to decide whether these two have any interest to preserve?

Thomas R. Santurri:

I believe that’s correct, Mr. Chief Justice.

Byron R. White:

It would be a nice thing if — if that’s really an issue.

Byron R. White:

I suppose we can remand this to the Court of Appeals that — for — for two or three reasons.

One, to consider your point, first.

Secondly, if it’s — that there’s still no live case to consider, reconsider the matter under Section 2 of the Voting Rights Act.

Thomas R. Santurri:

A remand may be the correct vehicle in order to — there are some factual assertions have been made through the supplemental briefs and that may be (Inaudible)

Byron R. White:

And maybe the Court of Appeals couldn’t solve it, it would have to be remand this to the District Court.

Thomas R. Santurri:

That is correct, Justice White.

John Paul Stevens:

May I ask in your opinion, whom does Mr. Rhyne represent?

Thomas R. Santurri:

Justice Stevens, I believe that he has named Commissioner Dixon, Commissioner Kelson and he represents also certain former members of the — the Board of County Commissioners.

John Paul Stevens:

He certainly made it clear.

He thinks there’s something he wants to fight about still.

Thomas R. Santurri:

I believe he did state their position, Mr. Justice Stevens.

Warren E. Burger:

Thank you, counsel.

Thomas R. Santurri:

Thank you, Chief Justice, I appreciate this —

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We’ll hear arguments next in —