Heggins v. City of Dallas, Tex.

• Decision Date: 22 February 1979
• Docket Number: Civ. A. No. CA 3-79-118-E.
• Citation: 469 F. Supp. 739
• Parties: Elsie Faye HEGGINS, J. B. Jackson, Lovie Lipscomb, Shirley Harvey, Lola Brown, J. R. Brown and Mary J. Body v. CITY OF DALLAS, TEXAS, Robert Folsom, Mayor, George Schrader, City Manager and Robert Sloan, City Secretary of the City of Dallas.
• Court: U.S. District Court — Northern District of Texas

469 F. Supp. 739

Elsie Faye HEGGINS, J. B. Jackson, Lovie Lipscomb, Shirley Harvey, Lola Brown, J. R. Brown and Mary J. Body v. CITY OF DALLAS, TEXAS, Robert Folsom, Mayor, George Schrader, City Manager and Robert Sloan, City Secretary of the City of Dallas.

Civ. A. No. CA 3-79-118-E.

United States District Court, N. D. Texas, Dallas Division.

Memorandum Opinion and Order February 20, 1979.

Memorandum Opinion February 22, 1979.

Elizabeth K. Julian, Dallas Legal Services Foundation, Inc., James A. Johnston, Johnston & Larson, Edward B. Cloutman, III, Mullinax, Wells, Baab, Cloutman & Chapman, Dallas, Tex., for plaintiffs.

Joseph G. Werner, Asst. City Atty., Dallas, Tex., for defendants.

Before GOLDBERG, Circuit Judge, and MAHON and HILL, District Judges.

MEMORANDUM OPINION AND ORDER

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

I.

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

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

II.

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

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

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

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

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

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

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

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

III.

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

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

It seems to us eminently more equitable to all concerned to delay the election rather than to allow an election in direct contravention of the Voting Rights Act. Although the court in Lipscomb tested and approved the eight/three plan according to constitutional standards, approval under the Voting Rights Act is an independent matter. We feel certain that the District of Columbia court...