United States v. State of Texas

• Decision Date: 16 February 1978
• Docket Number: Civ. A. No. 76-H-1681.
• Citation: 445 F. Supp. 1245
• Parties: UNITED STATES of America, Plaintiff, v. STATE OF TEXAS, Mark White, Secretary of State of Texas, John Hill, Attorney General of Texas, Waller County, Texas, Leroy Symm, Tax Assessor-Collector of Waller County, Texas, Defendants.
• Court: U.S. District Court — Southern District of Texas

445 F. Supp. 1245

UNITED STATES of America, Plaintiff, v. STATE OF TEXAS, Mark White, Secretary of State of Texas, John Hill, Attorney General of Texas, Waller County, Texas, Leroy Symm, Tax Assessor-Collector of Waller County, Texas, Defendants.

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

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

February 16, 1978.

John P. MacCoon, Dept. of Justice, Washington, D. C., Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for United States of America.

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

Will G. Sears, Michael T. Powell, Sears & Burns, Houston, Tex., for Waller County and Leroy Symm.

Before INGRAHAM, Circuit Judge, and SEALS and COWAN, District Judges.

MEMORANDUM OPINION

Prior Litigation, Legislation and Administrative Action Relating to Voter Rights of Prairie View Students

The case which controls this controversy is Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973) (hereinafter "Whatley"). That case holds that the statutory presumption of non-residency contained in Article 5.08(k) of the Texas Election Code is unconstitutional. Much of the previous litigation relating to voting rights in Waller County is rendered inapplicable by Whatley; however, that prior litigation, in the interest of completeness, should be reviewed.

The two previous cases in which the courts have grappled with the problem of Prairie View A & M University (hereinafter "Prairie View") student voters are Wilson v. Symm, 341 F.Supp. 8 (S.D.Tex.1972) and Ballas v. Symm, 351 F.Supp. 876 (S.D.Tex. 1972); 494 F.2d 1167 (5th Cir. 1974) (hereinafter "Wilson" and "Ballas").

Wilson was an effort by five Prairie View students to compel Tax Assessor-Collector Symm to register them to vote. The case was never certified as a class action pursuant to Rule 23, Fed.R.Civ.Proc. Wilson was decided before Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), and the court's holding in Wilson is predicated upon the court's conclusion (later proved incorrect by Whatley) that Article 5.08(k) was constitutional. The court held that the function of the challenged questionnaire was to provide student applicants a means by which to overcome a statutory presumption of nonresidency. Since Wilson v. Symm was predicated upon an incorrect assumption concerning the constitutionality of Article 5.08(k), it now has limited authoritative force.

Wilson was decided in the spring of 1972. In the fall of that same year, the Honorable James Noel decided the case of Ballas v. Symm, 351 F.Supp. 876 (D.C.Tex.1972). The trial court decision in Ballas, like the decision in Wilson, was decided before the appellate decision in Whatley, and was similarly predicated upon an assumption that the statutory presumption of 5.08(k) was constitutional.

Ballas, a white student at Prairie View, complained of Symm's practice of requiring students to complete the questionnaire attached to this opinion as Exhibit A Appendix. The Ballas case was never certified as a class action pursuant to Rule 23. The court specifically declined (351 F.Supp. at 880) to certify the case as a class action.

The trial court's opinion in Ballas v. Symm, 351 F.Supp. 876, at 877, discusses the fact that on October 2, 1972, the United States District Court for the Eastern District of Texas (Judge Wayne Justice) decided Whatley, holding at the trial court level that the statutory presumption contained in Article 5.08(k) was unconstitutional. The opinion also discusses the fact that on October 3, 1972, the Chief Election Officer of the State of Texas, Secretary of State, Robert Bullock, issued a bulletin to all voting registrars, advising that:

"No county registrar may require any affidavits or questionnaire in addition to the information required on the application for a voter registration certificate."

The trial court in Ballas held that this bulletin and Bullock's acceptance of Judge Justice's decision in Whatley was:

"Utterly lacking in candor or credibility; legally incorrect; misleading; in excess of his statutory authority, and irrelevant." 351 F.Supp. at 888.

Subsequent to Judge Noel's decision in Ballas in November of 1972, the Fifth Circuit decided Whatley in August of 1973, holding that Bullock's legal position, as stated in his memorandum, and Judge Justice's trial decision in Whatley were in fact legally correct and that Article 5.08(k) was unconstitutional.

In 1975, in an action which the State of Texas here contends was taken in response to Judge Noel's criticism of Secretary of State Bullock in Ballas, the 64th Legislature of the State of Texas passed a statute, amending the Texas Election Code. The Texas Election Code, as modified by the 1975 amendments reads:

"Art. 1.03. Secretary of State as Chief Election Officer.

"Subdivision 1. The Secretary of State shall be the chief election officer of this state, and it shall be his responsibility to obtain and maintain uniformity in the application, operation and interpretation of the election laws. In carrying out this responsibility, he shall cause to be prepared and distributed to each . . . county tax assessor-collector, . . . detailed and comprehensive written directives and instructions relating to and based upon the election laws as they apply to elections, registration of electors, and voting procedures which by law are under the direction and control of each such respective officer. Such directives and instructions shall include sample forms of ballots, papers, documents, records and other materials and supplies required by such election laws. He shall assist and advise all election officers of the state with regard to the application, operation and interpretation of the election laws.

"Subdivision 2. At least 30 days before each general election, the Secretary of State shall prescribe forms of all blanks necessary under this Code, and shall furnish same to each county clerk.

. . . . .

"Art. 5.02. Qualification and Requirements for Voting.

. . . . .

(b) All citizens of this state who are otherwise qualified by law to vote at any election of this state or any district, county, municipality, or other political subdivision shall be entitled and allowed to vote at all such elections. The Secretary of State shall, by directive, implement the policies stated herein throughout the elective procedures and policies by or under authority of this state. Enforcement of any directive of the Secretary of State pursuant to this section may be by injunction obtained by the Attorney General."

Although there is no way to determine the legislative history of an Act of the Texas Legislature with certainty, the State of Texas contends (and it seems reasonable to assume) that these statutory changes were enacted in reaction to Judge Noel's statements critical of Bullock in Ballas.

The Fifth Circuit Court of Appeals in Ballas v. Symm, 494 F.2d 1167 (5th Cir. 1974) affirmed the trial court decision, emphasizing, however, two significant facts:

1. The use of the form itself did not violate the federal Constitution because the determination of whether or not an applicant was a voter was not made on the basis of the form alone, but on the contrary, was made after a hearing; and

2. There was no proof that the questionnaire itself was used as a device to prevent legal residents from voting.

The Fifth Circuit opinion by Circuit Judge Roney is drawn with precision and decides a very narrow issue, as stated at 494 F.2d at 1168:

"The precise issue which this suit seeks to determine is whether use of a questionnaire to assist in residence determination by a voter registrar is a violation of the 14th Amendment Equal Protection Clause, and the amended 1964 Voting Rights Act because only some voter applicants, but not all, were required to complete the questionnaire."

The Fifth Circuit, as did the trial court, emphasized that the case was not a class action and not properly regarded as a class action. (See 494 F.2d at 1169).

The case at bar was filed on October 14, 1976 and on March 15, 1977, this court, in an unpublished Memorandum Opinion, overruled defendant Symm's motion for summary judgment. Symm's motion for summary judgment was predicated upon a theory that the Fifth Circuit opinion in Ballas was res judicata and barred the United States from relitigating the controversy relating to Waller County voting rights. The court held that res judicata was not applicable because of lack of identity of parties and because the cause of action asserted by the Government herein differs from that asserted by Ballas. In reaching its conclusion, the court relied upon Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977); Black Voters v. McDonough, 421 F.Supp. 165 (D.C.Mass.1976). This court in its opinion of March 15, 1977, however, decided that the doctrine of abstention was applicable. This court's decision to abstain was reversed 15 days later in a one paragraph opinion. Thereafter, the factual record which is discussed below was developed in a series of hearings.

Pleadings and Assertions of the Present Parties

The complaint of the United States alleges that defendant Symm, by virtue of certain practices, including the use of a unique form, has abridged the right of Prairie View dormitory residents to vote in violation of their rights under the 14th, 15th and 26th Amendments to the Constitution of the United States. In oral argument, the United States has consistently contended that its cause of action is considerably broader than the cause asserted in Ballas, supra, in that the United States does not object to the use of the Symm form per se, but contends that the form is merely a part of a more pervasive pattern of conduct which has the effect and the intent of depriving dormitory students at Prairie View of their rights under the 14th, 15th and 26th Amendments.

The claims of the United States are asserted against Symm, the...