Wilson v. Symm, Civ. A. No. 71-H-1437.

• Decision Date: 29 March 1972
• Docket Number: Civ. A. No. 71-H-1437.
• Citation: 341 F. Supp. 8
• Parties: Arthur Ray WILSON et al., Plaintiffs, v. Leroy E. SYMM, County Tax Assessor-Collector, Waller County, Texas, and Bob Bullock, Secretary of State of the State of Texas, Defendants.
• Court: U.S. District Court — Southern District of Texas

341 F. Supp. 8

Arthur Ray WILSON et al., Plaintiffs, v. Leroy E. SYMM, County Tax Assessor-Collector, Waller County, Texas, and Bob Bullock, Secretary of State of the State of Texas, Defendants.

Civ. A. No. 71-H-1437.

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

March 29, 1972.

David R. Richards, of Clinton & Richards, Austin, Tex., for plaintiffs.

Will Sears, and David F. Beale, of Sears & Burns, Houston, Tex., for defendant Leroy Symm.

Crawford C. Martin, Atty. Gen., W. O. Shultz, Asst. Atty. Gen., Austin, Tex., for defendant Secretary of State.

MEMORANDUM AND ORDER

NOEL, District Judge.

This action is brought by five college students enrolled at Prairie View Agricultural and Mechanical College in Prairie View, Texas, seeking to compel the County Tax Assessor-Collector of Waller County, Texas, in which the college is located, to register plaintiffs to vote. Although originally pleaded as a class action, that aspect of the complaint has been abandoned and plaintiffs now proceed in their own behalf. Jurisdiction is predicated upon 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343.

In the third amended complaint, it is alleged that each plaintiff is over eighteen years of age, is a resident of Waller County, is eligible to vote under state law, and has filed an application for voter registration with defendant Symm. Plaintiffs assert that Symm unconstitutionally declined to register them to vote, after having impermissibly required that they and other students complete a questionnaire as a condition of consideration for registration. It is argued that this constitutes a discrimination against plaintiffs on the basis of their status as students and their age, in violation of the Fourteenth and Twenty-Sixth Amendments. In so abridging plaintiffs' rights, defendant Symm is conceded to be acting pursuant to a Texas statute, Tex.Elec.Code Ann. art 5.08 (k), V.A.T.S., which creates a rebuttable presumption of non-residency on the part of college students. Plaintiffs argue that this statutory presumption is irrational and singles out students for special treatment in determining their residency, thus "fencing them out" from the franchise in the absence of a compelling state interest for doing so. Additionally, the degree of discretion which is reposed by the statute in defendant Symm is attacked as violative of due process of law. Finally, plaintiffs argue that the Texas student residency scheme, coupled with the federal census practice of counting college students where they are found, produces a malapportionment in contravention of the one-man-one-vote requirement of the Federal Constitution. Note should be taken of a contention which was abandoned. As originally pleaded, in the original complaint and the first amendment of same, plaintiffs alleged racial discrimination on the part of defendants in violation of the Federal Constitution as well as the Voting Rights Act, 42 U.S.C. § 1971. This ground was voluntarily and totally deleted in the plaintiffs' final amended pleading upon which plaintiffs proceeded to trial.

Although this suit was filed on December 15, 1971, it did not fall upon this Court's docket until shortly thereafter. It was immediately set down for preliminary pretrial hearing on January 18, 1972, at which hearing discovery matters were considered, leave to amend was granted both parties, prospective motions were discussed and a briefing schedule was established. On February 3, 1972, a hearing was had on the motions, following which counsel were given additional time to file authorities and briefs on plaintiffs' request for convocation of a three-judge court. For the reasons assigned in its Memorandum and Order of February 16, 1972, this Court declined to notify the Chief Judge of the Circuit for the purpose of convening such a court. Review of this Order was sought by interlocutory appeal as well as mandamus, both without success. See Wilson v. Noel, No. 72-1466 (5th Cir., March 9, 1972). The trial setting of March 13, 1972, was passed for one week upon motion of plaintiffs. On March 20, 1972, trial was had in Houston, Texas, at which time evidence was received and the arguments of counsel were heard. The Court now enters its findings of fact and conclusions of law. Rule 52(a), Fed. R.Civ.P.

FINDINGS OF FACT

(1) The five plaintiffs are regularly enrolled students at Prairie View Agricultural and Mechanical College ("Prairie View") in Waller County, Texas. All plaintiffs are over eighteen years of age and are members of the Negro race. Prairie View is a state-supported four-year college with a total enrollment of approximately 4000 students, more than 95% of whom are Negroes.

(2) Defendant Bullock is the Secretary of State of the State of Texas. As such, he is the State's chief election officer. Tex.Elec.Code Ann. art. 1.03. Defendant Leroy E. Symm is the county tax assessor-collector for Waller County and has held that office since 1956. As such, he is the officer responsible for the registration of voters. Tex.Elec. Code Ann. art 5.09a. Waller County, a predominantly rural county, has a population of approximately 14,000 persons, of whom 4600 are registered voters. Defendant Symm is personally acquainted with approximately 60% of those registered.

(3) To facilitate the performance of his duties, which include the determination of the residency of applicants for voter registration, defendant Symm has prepared a Questionnaire Pertaining to Residency (hereafter "questionnaire") for use beginning in the Fall of 1971.¹ It is composed of sixteen short questions, which are set out in the margin.² It was formulated by Symm with the assistance of the County Attorney, but has not been formally approved by any state officer. When a potential student registrant completes his Application for Voter Registration Certificate, he must place a mark in a space which reads "check here if serviceman or student". The categories of students and servicemen are completely overlapping in this instance, as the only military detachment in Waller County is the Reserve Officers Training Corps unit at Prairie View. An applicant who has thus marked the blank of the Registration Certificate is then required to complete the questionnaire. Therefore, the only applicants who are required to complete the questionnaire are students. In effect, the function of the questionnaire is to provide student applicants a means by which to overcome the statutory presumption of non-residency which is applicable to them.

(4) There are only two exceptions to this general practice. Defendant Symm does not require the questionnaire to be completed by married students or students who have parents residing in Waller County. Apparently, these two categories of students are permitted to register without further ado.

(5) Defendant Symm testified that his purpose in requiring that students complete the questionnaire is simply to provide himself with a factual basis for applying and enforcing the general residency statute, including the portion relating to student residency. The Court accepts this testimony and finds that Symm was so motivated and has acted at all times in good faith.

(6) Each plaintiff testified in his own behalf, and the following data pertinent to the residency determination was elicited.

(6-a) Arthur Ray Wilson, age 22 and a native of Beaumont, Texas, has attended Prairie View for four years and states that he considers Waller County his home and would like to return there upon completion of a post-graduate military commitment. He has been employed by Prairie View as a student counselor for three years but has no future job commitment there. He is unmarried and was living in a campus dormitory at the time he applied for registration, although he has since moved to an off-campus apartment. He owns an automobile which is licensed in Waller County (6-b) Randolph Grayson, age 29 and a native of Gulfport, Mississippi, has attended Prairie View and lived in Waller County for four years, and states that he will not return to Gulfport upon graduation as he considers Waller County to be his home. He came directly to Prairie Veiw upon his discharge from the Army, and now lives in an apartment in Hempstead, Texas. He has no future job commitment, but intends to stand for election to the office of precinct constable in Waller County. Acting upon the advice of an attorney, plaintiff Grayson declined to complete the residency questionnaire.

(6-c) Donnie Gene Young, age 20 and a native of Houston, Texas, has attended Prairie View and lived in Waller County for two and one-half years, and states that he intends to return to Prairie View and work for the college upon completion of his post-graduate military obligation. He presently has no job promised to him. He now lives off-campus, at the home of his aunt.

(6-d) Leodies U. A. Simmons, age 19 and a native of Weirgate, Texas, has attended Prairie View and lived in Waller County for two years, and testified that he intends to remain there indefinitely. He lives on-campus in a dormitory. This plaintiff had not applied for voter registration at the time that suit was filed, contrary to the assertion in the complaint which bears his name. Until a few days before trial, he was not even aware that a suit had been brought in which he was a plaintiff.

(6-e) Billy Ray Toliver, age 27 and a native of Houston, Texas, has attended Prairie View and lived in Waller County intermittently for the past several years. It appears that he attended Prairie View for two years, entered the military service for two years, was then employed for a period in Houston where he lived with his parents, and has now returned to Prairie View. He has no firm employment prospects in Waller County but states that he would like to remain there upon graduation. Upon the advice of an attorney, he declined to complete the residency questionnaire.

(7) Although defendant Symm did not...