United States v. State of Texas

• Decision Date: 03 November 1976
• Docket Number: Civ. A. No. 76-H-1681.
• Citation: 422 F. Supp. 917
• Parties: UNITED STATES of America, Plaintiff, v. STATE OF TEXAS et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

422 F. Supp. 917

UNITED STATES of America, Plaintiff, v. STATE OF TEXAS et al., Defendants.

Civ. A. No. 76-H-1681.

United States District Court, S. D. Texas, Houston Division.

November 3, 1976.

John P. MacCoon, Atty. in Charge, Dept. of Justice, Washington, D.C., James Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff.

David Kendall, First Asst. Atty. Gen. of Tex., Austin, Tex., for The State of Texas, Mark White and John Hill.

Will Sears, Michael T. Powell, Sears & Burns, Houston, Tex., for Waller County and Le Roy Symm, Tax Assessor-Collector of Waller County, Texas.

Before INGRAHAM, Circuit Judge, and NOEL and STERLING, District Judges.

MEMORANDUM AND ORDER

NOEL, District Judge.

On October 14, 1976 the United States instituted this suit for declaratory and injunctive relief, alleging that discriminatory voter registration procedures and standards were applied by the Tax Assessor-Collector of Waller County, Texas to students attending Prairie View A & M College in violation of the Fourteenth, Fifteenth, and Twenty Sixth Amendments to the Constitution, as well as certain provisions of the Civil Rights Act of 1964 (42 U.S.C. § 1971(a)) and the Voting Rights Act of 1965 (42 U.S.C. § 1973). In particular, the United States complains of the practice of defendant Le Roy E. Symm in the performance of his statutory duties as the Tax Assessor-Collector and Registrar of Waller County, Texas of requiring students who apply to register for voting in Waller County to complete a questionnaire, which inquires as to the applicant's address, ownership of property, auto registration, phone listing, address on the college's records, post-graduate plans, and similar matters. It is alleged that non-students in Waller County are not required to complete such a questionnaire in order to register to vote in Waller County. It is further alleged that students attending colleges and universities in other counties of the State of Texas are not required to complete such a questionnaire in order to register to vote in their college communities.

A conference was conducted in the Chambers of Judge James Noel on Monday, October 18, 1976, to give the United States a prompt hearing on its Application for a Temporary Restraining Order. Although only one of the defendants had been served with summons at that time, all of the defendants appeared at the conference through counsel and consented to the personal jurisdiction of the Court. In considering the Application for a Temporary Restraining Order, the Court was concerned as to why this suit was filed only 19 days before the November 2 election day and in fact one day after absentee balloting had already begun. Counsel for the United States admitted that the Department of Justice with the assistance of the Federal Bureau of Investigation had been investigating the voter registration procedures in Waller County since January of 1976, yet no excuse was offered for the delay in filing the suit other than the fact that the Department of Justice had been "negotiating with state officials". In view of this unreasonable delay in filing suit as well as the fact that two prior attacks on this very same questionnaire in Waller County had been unsuccessful, see Wilson v. Symm, 341 F.Supp. 8 (S.D.Tex.1972) and Ballas v. Symm, 351 F.Supp. 876 (S.D.Tex.1972), aff'd 494 F.2d 1167 (5th Cir. 1974), Judge Noel denied the Application for a Temporary Restraining Order.

At the in-chambers conference the Court also considered the United States' Motion to Convene a District Court of Three Judges. The request for a three-judge court was predicated on the claim of the United States for injunctive relief to remedy alleged violations of the Twenty Sixth Amendment. 42 U.S.C. § 1973bb(a)(2) requires that such claims be heard and determined by a three-judge court. Defendants opposed the convening of a three-judge court on the grounds that the Twenty Sixth Amendment claim was not of sufficient substantiality to support three-judge court jurisdiction. See California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). Due to the necessity of immediate action if a three-judge court were to be given an opportunity to review the case before the November 2 election date and in keeping with the admonition of the Chief Judge of this Circuit to leave the initial determination of substantiality to the three-judge court itself, Jackson v. Choate, 404 F.2d 910 (5th Cir. 1968), the Motion to Convene a Three-Judge Court was granted and the Chief Judge of the Fifth Circuit was immediately notified by telephone and thereafter in writing in accordance with 28 U.S.C. § 2284(b)(1).

On October 19, 1976 the Chief Judge designated as members of the Three-Judge Court to hear this case the judges whose signatures are hereto affixed. A pre-trial hearing was set for October 21, 1976 to hear oral arguments on the question of whether the Twenty Sixth Amendment claim was of sufficient substantiality to support the jurisdiction of the Three-Judge Court, to consider any pre-trial motions, and to determine whether and when an evidentiary hearing should be set on the United States' Motion for a Preliminary Injunction.

At the hearing on October 21, 1976 the Three-Judge Court joined in the earlier denial by the single Judge of the United States' Application for a Temporary Restraining Order. At the conclusion of oral arguments and the testimony of two witnesses, the Court announced that it was taking all pending motions under advisement and a ruling would be made on them as soon as possible. Pending, in addition to the United States' Motion for a Preliminary Injunction, are the Motion of defendants Symm and Waller County to Dissolve the Three-Judge Court, and motions by each of the defendants to dismiss. The Court will consider first the Motion to Dissolve the Three-Judge Court, then the motions to dismiss, and finally the Motion for a Preliminary Injunction.

1. Motion to Dissolve the Three-Judge Court

The Motion to Dissolve the Three-Judge Court is based on the contention that the Twenty Sixth Amendment claim asserted by the United States, upon which the convening of the Three-Judge Court was based, is insubstantial. Although on its face the requirement of a three-judge court in the applicable statutes appears to be absolute, the statutes have been interpreted to require three-judge courts if and only if the claims thereunder were not insubstantial. See, e. g., Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); California Water Service Co. v. Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). In the context of one of the recently repealed general three-judge court statutes, the Supreme Court has defined insubstantiality as follows:

Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. "Constitutional insubstantiality" for this purpose has been equated with such concepts as "essentially fictitious," Bailey v. Patterson, 369 U.S. 31, at 33, 82 S.Ct. 549, 7 L.Ed.2d 512; "wholly insubstantial," id.; "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482 (1910); and "obviously without merit," Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The limiting words "wholly" and "obviously" have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." (Emphasis added)

Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973).

Defendants argue that Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), Wilson v. Symm, 341 F.Supp. 8 (S.D.Tex.1972), and Ballas v. Symm, 351 F.Supp. 876 (S.D.Tex.1972), aff'd, 494 F.2d 1167 (5th Cir. 1974), render the Twenty Sixth Amendment claim insubstantial. The Supreme Court in Carrington invalidated a provision of the Texas Constitution which absolutely prohibited military personnel from establishing voter residency in Texas. In so doing, the Supreme Court observed that only military personnel were subject to an irrebuttable presumption of nonresidency, whereas other groups, such as college students, which also presented "specialized problems in determining residence", were "given at least an opportunity to show the election officials that they are bona fide residents." 380 U.S. at 95, 85 S.Ct. at 779. In dealing with the special problems presented by servicemen and students, the Supreme Court emphasized "... that Texas is free to take reasonable and adequate steps ... to see that all applicants for the vote actually fulfill the requirements of bona fide residence." 380 U.S. at 96, 85 S.Ct. at 780.

Defendants argue that the efforts of Symm to determine the true residence of voters through use of a questionnaire falls squarely within the permissible bounds set out in Carrington. The problem with this argument is that the Supreme Court in Carrington did not consider or decide what steps could be reasonably taken to determine the residency of special groups such as college students. The Supreme Court merely held invalid an irrebuttable presumption against such a group. Moreover, Carrington was decided long before the ratification of the Twenty Sixth Amendment. Thus, although the implications of Carrington may render the Twenty Sixth Amendment claim in this case of doubtful...