US v. UVALDE CONSOLIDATED IND. SCHOOL DIST.

• Decision Date: 25 October 1978
• Docket Number: Civ. A. No. DR-77-CA-20.
• Citation: 461 F. Supp. 117
• Parties: UNITED STATES of America, Plaintiff, v. UVALDE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Cecil Arnim, Jr., President, Billie Bailey, Vice President, Robert L. Jacobs, Secretary, J. A. Laning, Jr., Member, Dean P. Dimmitt, Member, Dan Davis, Member, Tommy Morriss, Member, Defendants.
• Court: U.S. District Court — Western District of Texas

461 F. Supp. 117

UNITED STATES of America, Plaintiff, v. UVALDE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Cecil Arnim, Jr., President, Billie Bailey, Vice President, Robert L. Jacobs, Secretary, J. A. Laning, Jr., Member, Dean P. Dimmitt, Member, Dan Davis, Member, Tommy Morriss, Member, Defendants.

Civ. A. No. DR-77-CA-20.

United States District Court, W. D. Texas, Del Rio Division.

October 25, 1978.

Griffin B. Bell, Atty. Gen., by Drew S. Days, III, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Jamie C. Boyd, U. S. Atty., San Antonio, Tex., Gerald W. Jones and Harvey B. Knudson, Jr., Attys., Civ. Rights Div., Dept. of Justice, Washington, D. C., for plaintiff.

Grant Cook and Jeffrey A. Davis, Houston, Tex., for defendants.

MEMORANDUM OPINION AND ORDER

JOHN H. WOOD, Jr., District Judge.

On September 19, 1977, the United States of America brought this suit against the Uvalde Consolidated Independent School District and the members of its Board of Trustees claiming that "as a result" of the at-large election of Board members in the Uvalde School District, Mexican-American residents have less opportunity than do "White residents" to participate in the electoral process and to elect Board members of their choice. The Complaint alleges that the use of the at-large method of election violates 42 U.S.C. § 1971(a)(1) and 42 U.S.C. § 1973c. Statutes giving the United States authority to institute this action for the claimed deprivation of the rights of others are alleged to be 42 U.S.C. § 1971(d) and 42 U.S.C. § 1973j(f). The Defendants have moved, pursuant to F.R.C.P. 12(b)(6), to dismiss the Complaint for failure to state a claim upon which relief may be granted.

The basic thrust of Defendants' Motion to Dismiss is twofold:

(1) Sections 1971(a)(1) and 1973 of Title 42 do not apply to and prohibit the maintenance of an at-large method of election for school board members and, therefore, the Attorney General has no authority to bring this suit, and

(2) If those two statutory provisions do apply in this case and the Attorney General does have authority to bring this suit, then he must allege and prove discriminatory intent or purpose.

The United States argues, in opposition to the Motion, that 42 U.S.C. § 1971(a)(1) and 42 U.S.C. § 1973 were enacted to enforce, to the fullest extent, the Fifteenth Amendment, and the Fifteenth Amendment prohibits an at-large system of election of school board members if it dilutes the voting strength of Mexican-American residents. It is further argued that a discriminatory intent or purpose is not an element of its cause of action.

I.

42 U.S.C. § 1971(a)(1) provides that all citizens of the United States who are otherwise qualified by law to vote shall be entitled and allowed to vote without distinction of race, color, or previous condition of servitude. The Attorney General may institute for the United States, or in the name of the United States, a suit for preventive relief when any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive a person of any right or privilege secured by Subsection (a). 42 U.S.C. § 1971(c).

42 U.S.C. § 1973 provides that no voting qualification or prerequisite to voting, or standard, practice or procedure shall be imposed or applied by any state or political subdivision to deny or abridge the right of any citizen to vote on account of race, color or language minority group status. As in the case of § 1971(a), the Attorney General is authorized to bring suit for preventive relief whenever any person has engaged in or appears to be about to engage in an act or practice prohibited by § 1973.

The United States' position is that as a result of the at-large system of election, Mexican-Americans in the Uvalde School District have less opportunity than others to participate in the political process and to elect members of the Board of Trustees of their choice. Therefore, it is claimed, the continued maintenance of this system frustrates the right of Mexican-Americans to a full, unabridged, and undiluted vote in elections for the Board of Trustees. The United States then relies on 42 U.S.C. § 1971(e) and, apparently, § 1973l(c)(1) which define the term "vote" to mean all action necessary to make a vote effective.

A. Section 1971(a).

This section of the civil rights statutes was enacted under the authority of the enforcement clause of the Fifteenth Amendment. It provides a cause of action for a violation of at least some of the rights guaranteed by that amendment. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). In State of South Carolina v. Katzenbach, 383 U.S. 301, 311-312, 86 S.Ct. 803, 810, 15 L.Ed.2d 769, 777, (1966), the Supreme Court discussed the kinds of discriminatory procedures nullified in suits brought under this statute and the Fifteenth Amendment. Involved in the cases cited by the Court and invalidated were "grandfather clauses", "procedural hurdles", "the White primary", "improper challenges", "racial gerrymandering" and "discriminatory application of voting tests"; that is, procedures prohibiting minorities from voting. The Complaint here does not allege such a case.

The wording of § 1971(a) demonstrates its inapplicability to a challenge to an at-large method of election. There is no allegation that any citizen "otherwise qualified by law to vote at any election" is not "entitled and allowed to vote at all such elections". Reading this statute to include the more expansive definition of voting contained in § 1971(e) does no more to assist the United States in its contentions. The Complaint still does not allege that any citizen otherwise qualified to vote is not entitled and allowed to take any or all "action necessary to make a vote effective".

Several cases are cited by the Plaintiff in support of its contention that the Fifteenth Amendment and § 1971(a) prohibit the maintenance of an at-large system under the circumstances alleged here. Although in some of the cited opinions there is language used which would seem to support the Plaintiff's position, the cases cited are not controlling because a challenge to an at-large system of election was not involved in the case, or, the plaintiffs in the case, generally private plaintiffs, asserted a cause of action under 42 U.S.C. § 1983 and the Fourteenth Amendment. For example, in Gray v. Main, 309 F.Supp. 207 (M.D.Ala., N.D.1968), the court made a statement to the effect that actions diluting the plaintiffs' right to vote would violate the Fifteenth Amendment and 42 U.S.C. § 1971(a). 309 F.Supp. at 212. However, in that case the basis for the complaint was that defendant election officials permitted numerous White persons to cast illegal ballots with the purpose of increasing the voting strength of Whites. An at-large system was not in issue. Furthermore, plaintiffs also asserted 42 U.S.C. § 1983 and the Fourteenth Amendment as grounds for their cause of action.

After reviewing the cases cited by both parties, it is apparent that there are no cases in which the issue presented here has been authoritatively adjudicated.

As stated above, the United States argues that § 1971(a) enforces the Fifteenth Amendment which in turn prohibits the maintenance of at-large election systems under the circumstances alleged here. However, those cases in which an at-large system has been struck down as violative of the rights of minority residents have all been based on the standards announced by the Supreme Court in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). These two cases involved claims made under 42 U.S.C. § 1983 and the Fourteenth Amendment rather than the Fifteenth Amendment. Mr. Justice Stewart, speaking for the court in Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), made the following statement applicable to the question presented here:

"It is possible that a legislative reapportionment could be a substantial improvement over its predecessor in terms of lessening racial discrimination, and yet nonetheless continue so to discriminate on the basis of race or color as to be unconstitutional. The United States has made no claim that Plan II suffers from any such disability, nor could it rationally do so.

"There is no decision in this Court holding a legislative apportionment or reapportionment violative of the Fifteenth Amendment. . . . But in at least four cases the Court has considered claims that legislative apportionment violated the Fourteenth Amendment rights of identifiable racial or ethnic minorities. See Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, 405; Burns v. Richardson, 384 U.S. 73, 86-89, 86 S.Ct. 1286, 1293-1295, 16 L.Ed.2d 376, 387-389; Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363, 379; White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314." 425 U.S. at 142, 96 S.Ct. at 1364, n. 14 (emphasis added).

Thus, there is no Supreme Court authority in support of the position taken here by the United States.

The recent case of Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978), rehearing en banc denied, 575 F.2d 300, seems to go farther than has the Supreme Court in deciding that a cause of action may be stated under the Fifteenth Amendment in a case involving an at-large election system. 571 F.2d at 220-221. Nevett, however, cannot be considered as controlling this case. There, private plaintiffs brought suit under the authority of 42 U.S.C. §§ 1981 and 1983 alleging violations of the Fourteenth and Fifteenth Amendments. The issue addressed by the court was whether or not intent is a necessary element in a cause of action in which it is claimed that an at-large method of election dilutes the voting strength of racial or ethnic minorities. The court held that it was.

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