CITY OF PORT ARTHUR, TEXAS, APPELLANT V. UNITED STATES OF AMERICA,
ET AL.

   No. 81-708

   In the Supreme Court of the United States

   October Term, 1981

   On appeal from the United States District Court for the District of
Columbia

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Summary of argument
   Argument:
      I. The district of court correctly conditioned
          preclearance of the city's territorial expansion upon
          modification of its proposed election plan in order
          to provide blacks in the enlarged community a fair
          opportunity to influence the outcome of elections for
          the two non-mayoral at-large positions.
          A. In reviewing an electoral plan designed to
             eliminate the dilutive effect on minority voting of
             a city's annexation, the district court sits as
             a court of equity with authority to condition
             preclearance on the modification of any part of the
             plan it reasonably concludes has a discriminatory
             effect or purpose
          B. In its June 12, 1981 opinion, the district
             court found the City's use of at-large elections
             with a majority vote requirement in prior
             electoral plans had both a discriminatory purpose
             and a discriminatory effect
          C. Appellant is incorrect in asserting that the
             plan approved by the district court goes beyond
             what is required under this Court's decision
             in City of Richmond
      II. The district court did not err in reviewing
          independently the city's electoral plan even
          though the United States had agreed to settle
          the litigation on the basis of that plan
   Conclusion

                            OPINIONS BELOW

   The June 12, 1981, opinion of the district court (J.A. 1a-75a) is
reported at 517 F. Supp. 987.  The July 14, 1981, order of the
district court (J.A. 87a-88a) is not reported.

                             JURISDICTION

   The order of the district court (J.A. 87a-88a) was entered on July
14, 1981.  The notice of appeal (J.A. 89a) was filed on July 21, 1981.
 The appeal was docketed on October 13, 1981, and this Court noted
probable jurisdiction on January 25, 1982.  The jurisdiction of this
Court is invoked under 42 U.S.C. 1973c.

                          QUESTION PRESENTED

   Whether the district court reasonably conditioned approval of a
mixed at-large and single member district plan for electing city
council members, submitted jointly by appellant and the United States
under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, on
a requirement that the election of the two at-large council members
should be decided on a plurality, as opposed to majority, vote in
order to neutralize the adverse racial impact caused by appellant's
territorial expansion.

                               STATEMENT

   1. The facts of this case are described at length in the June 12,
1981, opinion of the district court (J.A. 4a-44a).  The City of Port
Arthur is located in the southeastern portion of Texas.  While the
total population of the city decreased between 1960 and 1980 (from
66,676 to 54,485), the percentage of that population comprised by
blacks increased over the same period (from 30.79% to 45.21%) (J.A.
5a-7a).  /1/

   From 1954 to 1963, the City had a commission-manager form of
government.  Seven commissioners were elected from single-member
districts, and the commission then chose one of its members to serve
as mayor (J.A. 8a).  The districts from which commissioners were
elected were drawn along north-south lines (ibid.).  The district to
the west of Houston Avenue contained the highest concentration of
blacks, and a black commissioner was elected from that district each
year between 1954 and 1963 (J.A. 9a).  By 1960, it appeared that a
second district, east of Houston Avenue, would become predominantly
black (ibid.).  When the form of government was altered in 1963, three
of the residency districts were redrawn along east-west lines thus
fragmenting the growing black population by combining black
residential areas with white ones (J.A. 10a-11a).

   Since 1963, the City has been governed by a seven-member council,
elected at-large by majority vote (J.A. 9a-10a).  The six non-mayoral
council members are required to reside in specific districts;  no
residency requirements apply to the mayoral position (ibid.).  The
mayor has the right to cast a vote on each issue coming before the
council, but he also assumes certain ceremonial responsibilities
unique to his office (J.A. 10a).  Members of the council are elected
for two-year terms;  three are elected in one year, and the remaining
three and the mayor are elected the following year (ibid.).  One black
councilman, an incumbent from the pre-1963 single-member district
system, has been elected continuously since 1963 (J.A. 40a).  He has
never faced a white opponent.  In recent years, however, he has not
been the choice of the black voters in Port Arthur (ibid.).

   A high level of racial tension has existed in the City since
December 29, 1974, when a white policeman shot a black youth who was
escaping from police custody (J.A. 12a).  The effects of the increased
racial tension were felt dramatically in the campaign preceding the
April 1977, councilmanic elections (J.A. 13a).  As part of their
campaign against the slate of black candidates, members of the City
Council placed full-page advertisements in the local newspaper warning
that a black minister from outside Port Arthur was attempting "to
rally the local black community to gain control of the city
government" (ibid.).  The election results showed a high degree of
racial bloc voting, and the black candidates lost every race by a
narrow margin (J.A. 14a, 177a-178a).

   In April 1977, following these racially polarized councilmanic
elections, the City began actively pursuing consolidation with
neighboring communities (J.A. 14a-16a).  Racial considerations (linked
to concern -- created by the 1977 councilmanic elections -- that
blacks were becoming an increasingly powerful political force in the
City) provided the incentive for the increased drive for consolidation
(J.A. 66a-67a).  As a result, the neighboring cities of Pear Ridge and
Lakeview were consolidated with Port Arthur on December 1, 1977,
following referenda elections in Port Arthur and in each of the other
communities (J.A. 14a-22a, 180a-182a).  According to the 1980 Census,
Pear Ridge and Lakeview contributed 6,008 people, only 80 of whom were
black (J.A. 22a).  Of the total population of the enlarged city, the
added areas contained 16% of the whites and less than 1% of the blacks
(J.A. 23a).  Approximately six months after consolidation with Pear
Ridge and Lakeview, the City annexed an unincorporated area known as
Sabine Pass (J.A. 25a).  /2/ The annexed area contributed 501 persons,
according to the 1980 census, of whom 31 were black and 18 were
Hispanic (ibid.).  The effect of both expansions was to decrease the
percentage of the total population in Port Arthur that was black from
45.21% to 40.56% (J.A. 6a).

   During the next three years, the City considered several new
electoral plans that would take into account the newly added
territory.  An advisory committee, established in November 1977,
divided along racial lines on the question whether to keep the
at-large system of election or to return to the pre-1963 single member
district system (J.A. 23a-24a).  The recommendation of the
predominantly white majority of the committee, which was adopted by
ordinance on January 16, 1978, provided for the addition of an eighth
council member and retained the at-large system with residency
requirements (the "7-0-1" plan) /3/ (J.A. 24a).  A minority report,
filed by five of the seven black members of the committee, proposed a
single-member district plan, but it was not read at the public
hearings on the recommended plan (ibid.).

   On January 21, 1978, the City submitted the 7-0-1 plan to the
Attorney General for preclearance under Section 5 of the Voting Rights
Act (J.A. 41a-42a).  The Attorney General interposed a timely
objection to the plan because it did not sufficiently neutralize the
dilution of black voting strength caused by the consolidation with
Pear Ridge and Lakeview (J.A. 42a).  The Attorney General expressly
offered, however, to reconsider his objection should the City change
its plan to elect the council members from "fairly-drawn single-member
districts" (ibid.).  /4/

   On February 5, 1980, the City requested the Attorney General to
reconsider his objection to the 7-0-1 plan (J.A. 42a).  At the same
time the City requested pre-clearance of the annexation of Sabine Pass
and a new election plan that enlarged the City Council to nine
members, elected at-large by majority vote and with residency
requirements (the "8-0-1" plan) (J.A. 26a, 42a).  /5/ The Attorney
General denied the request to reconsider his objection to the 7-0-1
plan and objected to the 8-0-1 plan because the City had not adopted
single-member districts.  The Attorney General also objected to the
annexation of Sabine Pass because that action "exacerbated the
dilution of minority voting strength caused by the earlier
consolidation" (J.A. 42a-43a).

   2. On March 12, 1980, the City filed the instant suit in the United
States District Court for the District of Columbia seeking a
declaratory judgment under Section 5 of the Voting Rights Act that the
8-0-1 plan did not have the purpose and will not have the effect of
denying or abridging the right to vote on account of race or color.
The United States was named as defendant and, in addition, four black
residents of Port Arthur were permitted to intervene as defendants.

   While the suit was pending, the City accepted the offer of the
Community Relations Service of the United States Department of Justice
to mediate the dispute.  The City chose an all-white team to represent
it in negotiations, and, as the district court found (J.A. 28a),
"there is some evidence to suggest that members of the City's team
perceived their role as representing the white citizens of Port
Arthur." A group of black citizens formed a team to represent the
black community (ibid.).  The white team proposed, as a "bottom line,"
a nine-member council with the major elected at-large, four members
elected from single-member districts and four members to be elected
at-large from residency districts identical to the single-member
districts (the "4-4-1" plan) (J.A. 29a-30a).  The black team rejected
the 4-4-1 plan as failing to provide the minority community
representation commensurate with its political strength (J.A. 31a).
/6/

   Thereafter, a committee from the City's team, using city resources,
organized a petition drive to have the 4-4-1 plan placed on a special
ballot as an alternative to a plan that had been proposed by the City
firefighters /7/ in a special referendum election (ibid.).  The
campaign waged by the committee emphasized the racial breakdown of
support for the two plans and reminded voters to "keep our city
government in the hands of all people" (J.A. 31a-32a) (emphasis in
original).  The results of the referendum election showed significant
racial polarization, with the 4-4-1 plan being adopted by a majority
of the voters (J.A. 32a).  /8/ On September 15, 1980, the city moved
to amend its complaint, seeking a declaratory judgment that the newly
approved 4-4-1 plan did not have the purpose and would not have the
effect of denying or abridging the right to vote on account of race or
color (J.A. 44a).

   3. The district court, relying on the decisions in City of
Petersburg v. United States, 354 F. Supp. 1021 (D.D.C. 1972), aff'd,
410 U.S. 962 (1973), and City of Richmond v. United States, 422 U.S.
358 (1975), concluded that the expansion of Port Arthur "significantly
altered the racial balance in the City" (J.A. 52a), and that none of
the electoral plans proposed by the City afforded black voters "the
requisite opportunity to achieve representation commensurate with
their voting strength in the enlarged community" (J.A. 54a).  The
court found that blacks comprise 40.56% of the population of the
enlarged city, and approximately 35% of the voting-age population, but
the combination of racial-bloc voting with both a majority vote and a
residency requirement would prevent black voters from having an
influence over the election under either the 8-0-1 or the 4-4-1 plan
anywhere near their strength in the enlarged city (J.A. 54a-58a, 62a).
 /9/ The court also found that instead of producing elected officials
who are responsive to the needs of the entire city, the at-large
system resulted in white council members, elected by racial bloc
voting, who are wholly inattentive to the needs of black citizens in
the areas of municipal employment and city services (J.A. 55a).  The
court therefore found that both the 4-4-1 and the 8-0-1 plan had the
effect of denying or abridging the right to vote on account of race.

   In addition, the district court noted several "indicia of an
original discriminatory purpose" (J.A. 67a) behind the expansion of
Port Arthur's boundaries, demonstrating "a desire to abridge the
electoral rights of the black population" (J.A. 66a).  The district
court concluded (J.A. 67a-68a), however, that there were legitimate
purposes behind the annexation and consolidation and therefore they
were not precluded from receiving preclearance under Section 5 as
being improperly motivated.  See City of Richmond V. United States,
supra, 422 U.S. at 378-379.

   With regard to whether the voting changes the City submitted had an
impermissible purpose, the court concluded that both the 4-4-1 and
8-0-1 plans were adopted with an "invidious motive" (J.A. 70a).  The
court summarized the evidence leading to this conclusion as follows
(ibid.):

         (T)he specter of discrimination was raised by the 1963
      redrawing of district lines, and its continued existence was
      marked by the April 1977, campaign advertisements.  The severely
      polarized councilmanic election results then sparked a
      mysteriously sudden push for expansion which significantly
      diminished black voting strength.  Rather than neutralizing the
      effect of this dilution, City officials devised the 8-0-1 and
      4-4-1 plans which guaranteed that blacks would remain
      underrepresented on the City Council by comparison to their
      numerical strength in the enlarged community.  Because of this
      invidious motive, we condemn the voting plans.

   The City offered several justifications for the two plans, all of
which the court found to be "pretextual" and "specious" (J.A.
71a-72a).  The court found that enlargement of the council and
imposition of residency requirements could not have the purported
purpose of enhancing representation of the minority community because
of the severe racial polarization in voting (ibid.).  /10/ It also
found that, while at-large elections often produce representatives who
are more responsive to the interests of a city as a whole rather than
to those of a particular district, in this case the at-large council
members have been wholly unresponsive to the interests of minority
citizens (J.A. 72a-73a).  Finally, the court found that any alleged
intention to increase minority representation by the 4-4-1 plan was
"overriden (sic) by the desire of white Port Arthurians to maintain
undisputed control of the municipal government" (J.A. 72a).  The City
did not appeal from the district court's June 12, 1981 decision.

   4. Subsequent to the district court's June 12, 1981, decision,
which conditioned approval of the expansions upon an electoral system
designed to provide the requisite representation to black voters, the
City on June 29, 1981, submitted an amended plan in a Report to the
Court.  After negotiations, however, the City and the United States
jointly submitted a new plan on July 8, 1981, which provided for six
single-member district seats and t ree at-large seats (the "4-2-3"
Plan) /11/ (J.A. 79a).  The plan provided for four single-member
districts, in two of which blacks constituted a majority (79% and
62.78% black), and the plan also combined the two majority black
districts into a fifth single-member district (70.83% black) and the
two remaining districts into a sixth district (10.98% black) /12/
(ibid,;  City of Port Arthur's Report to the Court Pursuant To Order
of June 12, 1981 (filed June 29, 1981)).  The fifth and sixth
districts would serve as residency districts for the two non-mayoral,
at-large seats, and the mayor would be elected at-large with no
residency requirements (ibid.).  All elections would be by majority
vote (ibid.).

   The United States expressed reservations about the continued use of
the at-large feature and about the majority vote requirement (J.A.
80a-81a).  Acknowledging the district court's conclusion in its June
12 opinion that "the black population effectively has no opportunity
to elect at-large council members," the United States nonetheless
concluded that the ability of the black community to influence the
outcome of three single-member seats lessened the discriminatory
impact of the remaining at-large feature (J.A. 80a).  The United
States also expressed a distinct preference for a plurality win
provision for the at-large seats in order to increase the possibility
of minority influence, but concluded that the City's refusal to
incorporate such a provision did not justify denying preclearance of
the entire plan (J.A. 81a).  Intervenors also expressed their
reservations about the continued use of the at-large seats and, in
addition, asserted that "(s)ubstituting a plurality requirement for
three or even two of the at-large positions in the plan would allow
the City to exercise all legitimate political and governmental
prerogatives while affording the black population an opportunity to
influence the election of the three at-large council people" (J.A.
84a).  /13/

   The district court accepted the bulk of the City's "4-2-3 plan,"
but, with one judge dissenting on this point, conditioned its
preclearance on a plurality vote requirement in the election of the
two non-mayoral, at-large councilmanic positions (J.A. 87a-88a).  The
district court stated that the proposed plan "insufficiently
neutralizes the adverse impact upon minority voting strength which
resulted from the expansion of Port Arthur's borders" (J.A. 87a).

                          SUMMARY OF ARGUMENT

   I. A. The United States District Court for the District of Columbia
plays an extraordinary role in implementing Section 5 of the Voting
Rights Act without its express approval (or preclearance by the
Attorney General), no "standard, practice, or procedure with respect
to voting" can be implemented by any jurisdiction covered by the Act.
42 U.S. 1973c.  Although the district court's responsibilities under
Section 5 are generally "heavy," City of Richmond V. United States,
376 F.Supp. 1344, 1346 (D.D.C. 1974), rev'd on other grounds, 422 U.S.
358 (1975), nowhere are they more substantial than in reviewing the
validity of annexations of predominantly white areas by political
subdivisions subject to the Act.  See City of Richmond V. United
States, 422 U.S. 358 (1975);  Perkins V. Matthews, 400 U.S. 379
(1971).

   Annexations pose a unique problem because they are not per se
impermissible even if they will have a clear dilutive effect on
minority voting strength.  See City of Richmond V. United States,
supra, 422 U.S. at 374-375, 378.  Instead, the annexation should be
precleared if supported by non-racial justifications and if a new
voting plan for the new community "fairly reflects the strength of the
Negro community as it exists after the annexation." Id. at 371.

   In attempting to ease the litigating burden on the cities subject
to the Act, the district court has been invested with "remedial
device" of conditioning preclearance on modifications in the city's
voting plan.  See City of Rome V. United States, 446 U.S. 156, 188
(Blackmun, J., concurring).  See also City of Richmond V. United
States, supra, 422 U.S. at 370.  In exercising this remedial
authority, the district court must consider every aspect of the plan
to assure that there are no subtle discriminatory purposes or effects,
masked by an otherwise facially valid plan, that will cause the plan
to undervalue the voting strength of the minority population in the
expanded community.  Cf. South Carolina V. Katzenbach, 383 U.S. 301,
335 (1966).  The district court's authority to consider all facets of
the plan is well supported by the legislative concern, expressed in
1975 when the Voting Rights Act was extended to cover Texas, that
historically subtle forms of discrimination had been practiced to
guarantee that minorities could never obtain any real political power
in Texas communities.  See S. Rep. No. 94-295, 94th Cong., 1st Sess
27-28 (1975):  H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 18-19
(1975).

   It cannot be the rule, as appellant contends, that a district court
exclusively commissioned to protect against attempts to dilute black
voting strength is permitted to consider no more than whether the
black community has obtained arguably proportional representation.
Such a showing can be sufficient in a proper case;  but where the
district court has found two previous plans to be blatantly
discriminatory in purpose and effect, it is justified in examining the
newest proposal carefully to make sure that it does not carry forward
discrete features that previously had been found offensive.  If such
features appear, and the record supports a finding that such features
violate the Act when incorporated as a part of the overall plan, then,
as a court of equity, it has full authority to condition preclearance
on modification of those features.

   B. In this case the district court had specifically found, and its
finding has never been challenged by appellant, that "black voters of
the City essentially have no role in determining the outcome of the *
* * at-large election(s)" (J.A. 57a;  emphasis added).  This lack of
any influence on the outcome has allowed at-large representatives to
be wholly unresponsive to black interests in Port Arthur (J.A.
35a-36a).  Thus, although the plan generally goes far toward providing
blacks a fair opportunity to influence the outcome in these districts,
the retention of the at-large feature still would dilute voting
strength by freezing blacks out of the electoral process for two
pivotal seats.  The district court, however, recognized the public
interest in at-large seats and allowed the City to retain them;  it
found no similar public interest in the majority vote requirement and
ordered it modified to protect the minority's legitimate interest in
having some influence on those elections.  The district court thus
properly exercised its equitable discretion in making this simple
modification in the City's overall plan.  See Hecht C. V. Bowles, 321
U.S. 321, 329-330 (1944).

   C. Nothing in the district court's decision conflicts with this
Court's decision in City of Richmond V. United States, supra.  In
Richmond this Court held that it is improper to condition approval of
an annexation on a requirement that minority voting strength be
commensurate with pre-annexation population strength, which would lead
to over-representation of the minority group.  This Court did not
limit the district court to making a mathematical decision as to
whether a particular plan was adequate to protect against dilution of
minority voting rights.  Compare City of Rome V. United States, supra,
446 U.S. at 187.  In addition, the district court's decision in this
case will not overvalue minority rights, but instead will merely give
blacks an opportunity to have influence commensurate with their voting
strength over whatever candidate is elected at-large to the city
council in Port Arthur.

   II. The 4-2-3 plan submitted to the District Court was joined by
the United States as a party-litigant seeking a reasonable resolution
of a protracted litigation.  Focusing largely on the three
single-member seats that blacks could reasonably influence, we
concluded that the plan probably satisfied City of Richmond and the
district court's prior concerns.  The district court, focusing on the
at-large seats that blacks could not influence, and about which we
expressed serious reservations, concluded that the plan required a
modification of the majority-vote requirement for those seats.  Having
agreed to submit the plan to the district court, both parties expected
it to review the plan and approve it only if it were convinced that no
dilution of the black vote continued.  Based on the legitimate concern
the court had with the unusual effect of the at-large seats with a
majority-vote requirement on black voting strength in Port Arthur, it
was not improper for the court to decline to rubber stamp the plan
containing two such seats.

                               ARGUMENT

 I. THE DISTRICT COURT CORRECTLY CONDITIONED PRECLEARANCE OF THE
CITY'S TERRITORIAL EXPANSION UPON MODIFICATION OF ITS PROPOSED
ELECTION PLAN IN ORDER TO PROVIDE BLACKS IN THE ENLARGED COMMUNITY A
FAIR OPPORTUNITY TO INFLUENCE THE OUTCOME OF ELECTIONS FOR THE TWO
NON-MAYORAL, AT-LARGE POSITIONS

 A. In Reviewing An Electoral Plan Designed To Eliminate The Dilutive
Effect On Minority Voting Of A City's Annexation, The District Court
Sits As A Court Of Equity With Authority To Condition Preclearance On
The Modification Of Any Part Of The Plan It Reasonably Concludes Has A
Discriminatory Effect Or Purpose

   It is well settled that the requirements of Section 5 of the Voting
Rights Act must be satisfied when a political subdivision, such as the
City of Port Arthur, expands its territorial boundary.  City of Rome
V. United States, 446 U.S. 156, 187 (1980);  City of Richmond V.
United States, 422 U.S. 358, 367-368 (1975);  City of Petersburg V.
United States, 410 U.S. 962 (1973), aff'g, 354 F.Supp. 1021 (D.D.C.
1972);  Perkins V. Matthews, 400 U.S. 379, 390-391 (1971).
Application of the extraordinary requirements of Section 5 to
annexations is justified because acquisition of surrounding
communities, if predominantly white, can have either an intended or
unintended dilutive effect on the minority's right to vote.  See
Perkins V. Matthews, supra, 400 U.S. at 390.  /14/ As this Court
recognized in Perkins, annexation can deny the right of suffrage "just
as effectively as by wholly prohibiting the free exercise of the
franchise." 400 U.S. 388, quoting Reynolds V. Sims, 377 U.S. 533, 555
(1964).

   Majority black populations, such as those in Richmond and
Petersburg, Virginia, can be reduced to minorities overnight with an
obvious corresponding loss of voting power.  See City of Richmond V.
United States, supra, 422 U.S. at 372;  City of Petersburg V. United
States, supra, 354 F.Supp. at 1024.  Of equal concern, growing
minority populations carrying the potential for the first exercise of
real political power can be thwarted irreparably by annexations unless
modifications are made in the electoral scheme to neutralize the
dilutive effect of the boundary change.  City of Rome V. United
States, supra, 446 U.S. at 186-187;  S.Rep. No. 94-295, 94th Cong.,
1st Sess. 16 (1975).

   Because annexations involve complex social, economic and political
issues that may determine the very ability of a city to exist,
however, they are not treated the same as other electoral practices
subject to Section 5 of the Voting Rights Act.  See City of Richmond
V. United States, supra, 422 U.S. at 374-375, 378.  Even when the
political subdivision is unable to prove that no part of the purpose
or effect of the annexation was to impair minority voting strength,
the annexation itself is not per se impermissible, so long as there
are legitimate, non-racial reaons for the territorial expansion and
the new city's electoral scheme incorporating the annexed region is
designed to "fairly reflect() the strength of the Negro community as
it exists after the annexation * * * ." City of Richmond V. United
States, supra, 422 U.S. at 371.

   The latter inquiry could lead to endless litigation but for the
adoption of the practice, expressly approved by this Court, of having
the district court condition preclearance under Section 5 upon
specific modifications in the electoral plan proposed by the political
subdivision.  See City of Richmond V. United States, supra, 422 U.S.
at 370.  /15/ The judicial process of suggesting modifications in a
plan so that an otherwise improper annexation can be converted into an
electoral change that is permissible under Section 5 of the Voting
Rights Act, requires a careful balancing of the various interests
involved with the paramount concern being to assure that Congress'
intent under Section 5 to "banish the blight of racial discrimination
in voting" is furthered.  South Carolina V. Katzenbach, 383 U.S. 301,
308 (1966).

   The fashioning of such a plan is a classic exercise of equitable
discretion by a district court.  See City of Rome V. United States,
supra, 446 U.S. at 188 (Blackmun, J., concurring) (describing the
practice of conditioning approval on modifications as a "remedial
device").  There is no fixed formula for measuring reasonable
equivalence of voting strength.  Nor, in circumstances such as these
here -- where blacks are afforded a fair opportunity to influence the
election in three of nine districts -- is it clear what additional
measures may be necessary to ensure no compromise of minority voting
rights as a result of annexation.  That determination is, of
necessity, a judgment call on which there can be reasonable
differences of opinion.  Compare Swann V. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1, 15 (1971).

   If we are correct that the district court, in attempting to
neutralize the dilutive effect on minority voting strength of the
annexation of a predominantly white population, sits as a court of
equity, then it follows that the court should be "the instrument for
nice adjustment and reconciliation between the public interest and
private needs as well as between competing private claims." Hecht Co.
V. Bowles, 321 U.S. 321, 329-330 (1944).  See also Swann V.
Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 15.  The
district court therefore was obligated to consider the City's election
plan as a whole to assure that the political influence of blacks will
be commensurate with their strength in the enlarged city.

   The City's submission regarding the district court's authority
under the Voting Rights Act in annexation cases is that, if the City
allows the black population in the expanded city a reasonable
opportunity to elect three of nine members to the city council, /16/
then the district court has no authority whatsoever to consider the
effect on the voting strength of blacks of any other feature of the
plan.  Taken to its logical extreme, the City's position would require
a district court to preclear a plan that refused to allow blacks to
vote at all outside of the districts in which they are given
substantial control.  Certainly nothing in City of Richmond's
"reasonable equivalence" test supports such a result.

   Indeed, the facts in City of Richmond directly refute the City's
proportional representation argument.  Not only did the single-member
district plan in Richmond provide blacks with a better opportunity to
elect four of the nine members of the City Council than does Port
Arthur's plan, but in the fifth district blacks comprised 40.9% and
thus might be able to exercise a swing vote influence.  422 U.S. at
372.  As we discuss more fully later (see pages 23-25, infra), with a
majority vote requirement, blacks in Port Arthur will not exercise any
influence over elections in the at-large districts.  City of Richmond
thus does not support appellant's argument that the district court
lacked authority to review the at-large features of this plan.

   In addition, such an approach would be inconsistent with Congress's
intent in extending the Voting Rights Act to Texas.  The Senate Report
on the extension of the Act pointed out (S. Rep. No. 94-295, 94th
Cong., 1st Sess. 27-28 (1975)):

         Election law changes which dilute minority political power in
      Texas are widespread in the wake of recent emergence of minority
      attempts to exercise the right to

7 vote. * * *

         The at-large structure, with accompanying variations of the
      majority run-off, numbered place system, is used extensively
      among the 40 largest cities in Texas (including Port Arthur).
      And, under state statute, the countless school districts in
      Texas elect at-large with an option to adopt the majority
      run-off, numbered place system.  These structures effectively
      deny Mexican-American and black voters in Texas political access
      in terms of recruitment, nomination, election and ultimately,
      representation.

   H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 18-19 (1975).  Indeed,
the hearings and debates in 1975 demonstrate a clear awareness of, and
concern about, the widespread use in Texas of, inter alia, at-large
elections coupled with majority vote requirements to halt the
expanding influence of minorities in local Texas elections.  See,
e.g., 121 Cong. Rec. 16251 (Rep. Edwards);  id. at 16278 (Rep.
Roybal);  id. at 16280 (Rep. Jordan);  id. at 16288, 16881 (Rep.
Badillo);  id. at 16911-16912 (Rep. Roybal);  id. at 16915 (Rep.
Rangel);  Extension of the Voting Rights Act of 1965:  Hearings Before
the Subcomm. on Constitutional Rights of the Senate Comm. on the
Judiciary, 94th Cong., 1st Sess. 462, 491-492, 524, 992 (1975)
(hereinafter Senate Hearings);  Extension of the Voting Rights Act:
Hearings on H.R. 939, etc., Before the Subcomm. on Civil and
Constitutional Rights of the House Comm. on the Judiciary, 94th Cong.,
1st Sess. 389, 404, 519-521 (1975).  Congress extended the Section 5
requirements of the Voting Rights Act to Texas to assure that such
efforts in the future would be subject to the scrutiny of
preclearance.  It cannot reasonably be assumed that Congress would
expect the judicial inquiry into the very practices it found to be
pervasive and offensive enough to warrant application of Section 5 to
Texas to be foreclosed simply because the City has begrudgingly moved
in the direction of proportional representation with regard to certain
facets of its electoral plan.

   Contrary to appellant's simplistic view of Section 5, "adequacy of
representation is not measured solely by the black community's ability
to elect its first-choice candidate." City of Rome V. United States,
472 F.Supp. 221, 248 (D.D.C. 1975), aff'd, 446 U.S. 156 (1980).
Indeed, this observation is as true when minorities claim that they
have an insufficient opportunity to choose their own candidate as it
is when the majority claims that the minority's representation is
roughly proportional.  See United Jewish Organizations V. Carey, 430
U.S. 144, 172-173 (1977) (Brennan, J., concurring in part).  A claim
of proportional representation cannot pretermit judicial review
because the City's effort "might be a 'contrivance to segregate' the
group" or at least have that effect and thereby perpetuate
discrimination.  Id. at 172, quoting Wright V. Rockefeller, 376 U.S.
52, 58 (1964).  We thus submit that the validity of the district
court's exercise of equitable discretion cannot be judged solely on a
mathematical basis.  Instead, the proper analysis must be to compare
the findings of the district court with the record to determine
whether the evidence shows a clear abuse by the court.  /17/

 B. In Its June 12, 1981 Opinion, The District Court Found The City's
Use Of At-Large Elections With A Majority Vote Requirement In Prior
Electoral Plans Had Both A Discriminatory Purpose And A Discriminatory
Effect

   Appellant characterizes (Br. 17) the district court's order
modifying the majority vote requirement in the at-large elections as
"unexplained." The order itself is quite terse;  it simply states that
the retention of the majority vote feature "insufficiently neutralizes
the adverse impact upon minority voting strength which resulted from
the expansion of Port Arthur's borders" (J.A. 87a).  But the July 14
order at issue here must be read in light of the findings and
conclusions of the district court in its June 12 opinion regarding the
two prior plans submitted for preclearance.  Modification of the
proposed plan to require a plurality vote provision for the at-large
seats was, in the court's view, necessary to give black voters a
meaningful opportunity to participate in the political process in the
enlarged community.  /18/ For the reasons that follow, we are unable
to fault that conclusion as an abuse of judicial discretion, even
though it does not fully comport with the compromise that was
satisfactory to the United States.

   The City presented to the district court for preclearance, in
connection with its territorial expansion, two plans that the court
concluded had not only a discriminatory effect upon the rights of
black voters but also were "enacted with an invidious purpose" (J.A.
70a).  Both the "8-0-1" and the "4-4-1" plan relied upon the use of
at-large elections by majority vote to accomplish this invidious
purpose and effect.

   The court's uncontested finding that at-large elections by majority
vote in Port Arthur have a discriminatory effect upon black voters was
based upon several factors.  First, the court found that the black and
white communities in Port Arthur have become seriously polarized as a
result of discrimination suffered by blacks and that this polarization
was manifested by extreme racial bloc voting.  Moreover, city
officials who have been elected by "almost total bloc voting by race"
have been systematically unresponsive to the needs and interests of
black citizens.  /19/

   Second, within the context of racial bloc voting, the majority vote
/20/ and residency requirements for at-large elections promoted
head-to-head contests between black and white candidates in which
black voters, being in the minority, invariably failed to elect the
candidate of their choice (J.A. 56a).  /21/ Of even greater concern is
the court's finding that the use of at-large elections decided by
majority vote means that "black voters of the City essentially have no
role in determining the outcome of the * * * at-large elections for
council seats" (J.A. 57a, emphasis added).  In the absence of racial
bloc voting, a group the size of the black population of Port Arthur
would ordinarily be expected to have a substantial influence over
at-large elections.  The district court found, however, that
"(a)lthough theoretically possible, black Port Arthurians have not
even wielded a swing vote in at-large races between two or more white
contestants" (ibid).  Thus, the majority vote feature has been a
blatant obstacle to the ability of black citizens to have any
influence on the elections of candidates for at-large seats.

   In addition to these findings of the discriminatory effect of the
post-expansion electoral plans, the court also concluded that those
plans were devised with a racially discriminatory purpose.  In
essence, the court found that every time black voters began to pose a
serious threat to white domination of City politics, the City took
steps to curb black influence.  Thus, in 1963, at a time when the
black population was expanding eastward in a way that suggested a
possible black majority in an additional district, the district lines
were redrawn along an east-west axis thereby fragmenting the black
population and diluting its effect upon the city council elections
(J.A. 9a-11a, 66a).

   Later, during the campaign for the 1977 council elections, at a
time when serious racial tensions existed in the City, the incumbent
City Council members sponsored newspaper advertisements which the
court found were "intended to alert the white population to the
serious political challenge posed by black Port Arthurians" (J.A.
66a).  The severely racially-polarized election results then "sparked
a mysteriously sudden push for expansion (of the City's boundaries)
which significantly diminished black voting strength" (J.A. 70a).

   City officials then devised two electoral plans for the expanded
city (the "8-0-1" and "4-4-1" plans) which, "(r)ather than
neutralizing the effect of this dilution" (J.A. 70a), assured a
continuing diminution in black voting rights.  The court found that
the City Council, in drawing up its post-annexation plans, "stubbornly
clung to the concept of at-large elections where single-shot voting
was impeded by residency and majority vote requirements" and with
knowledge that "City politics were seriously polarized by race"
(ibid.).

   Expressing a "desire to minimize the intrusion of th(e) federal
court into the affairs of the City," /22/ the court declined to
condition preclearance of the expansion upon conversion to an all
single-member district system (J.A. 74a).  Instead, it invited the
City to "develop an electoral system of its own design" (ibid.).  At
the same time, having concluded that the prior post-expansion plans
(the "8-0-1" and the "4-4-1") using at-large elections with a majority
vote requirement were devised with a discriminatory purpose and had a
serious inhibiting effect on minority influence in the at-large
contests (J.A. 69a-73a), the district court made plain its doubt about
the legality of any new plan that contained such a majority vote
feature.  /23/ In light of the record before the district court
regarding the past use by the City of the majority vote requirement in
conjunction with at-large elections, the court's modification of that
requirement cannot be regarded as so devoid of factual basis as to be
an inappropriate exercise of judicial discretion.  /24/

   Our submission in this case, in contrast to that of appellant, is
very narrow.  We do not generally oppose all at-large elections with
majority vote requirements or mixed at-large and single-member
district plans.  Our willingness to join in submitting the City's
final plan for approval by the district court is ample evidence of our
inclination to approve such plans.  But most cities are not
disadvantaged by racial polarization as significant as was found in
Port Arthur.  The district court was obviously offended by the City's
use of a scheme -- at-large elections -- that purports to encourage
elected officials to be responsive to all segments of the community,
but which when coupled with a majority vote requirement in a context
of rigid racial bloc voting will result in a significant minority of
the City of Port Arthur being ousted from any role at all in
influencing these city-wide officials.  The action of the district
court simply fulfills the promise inherent in an at-large feature:
that all voters in the City will be represented by the elected
councilmember.  In the unusual setting of Port Arthur, Texas, the
district court's judgment is an equitable one and should be upheld.

 C. Appellant Is Incorrect In Asserting That The Plan Approved By The
District Court Goes Beyond What Is Required Under This Court's
Decision In City of Richmond

   Appellant argues (Br. 19) that substitution of a plurality win
provision "tilts" the plan toward over-representation of black voters.
 As discussed supra, however, the at-large feature of the 4-2-3 plan
was employed on a larger scale by the City in its prior plans to
prevent black voters from having any opportunity to participate
meaningfully in the electoral process.  Use of a plurality win
provision does not provide the 35% voting age black population with a
significant opportunity actually to elect the candidate of its choice
to either of the at-large seats, but it does assure it some influence
over the outcome of those elections through its ability to concentrate
its vote behind a single candidate (see discussion supra, page 23 note
20).

   This is an influence that the district court specifically found
simply will not exist in the plan as submitted to the district court.
Contrary to the City's assertion (Br. 18), the Attorney General did
not state that the imposition of residency districts for the two
at-large seats would give blacks "significant influence over" the
candidate elected from the 70% black district.  Rather the United
States stated that the residency requirement would "assure that one of
the at-large representatives will reside in, and hopefully represent
the interest of, that portion of the city where a sizeable majority of
the black population resides" (J.A. 81a, emphasis added).  /25/ At the
same time, we also observed (id. at 80a-81a):

         (T)he application of a majority vote requirement to the
      at-large seats will make it more difficult, given the existing
      patterns of racial bloc voting, for the minority community to
      influence the selection of persons to fill those seats.
      Minority influence on those positions would be increased if the
      two at-large seats (excluding the mayor) were run on a plurality
      win system.

   The district court viewed this observation as sufficiently
compelling to insist that the City's electoral plan be modified
accordingly.  /26/ Against the background of this case, that judgment
is entitled to be upheld.

 II. THE DISTRICT COURT DID NOT ERR IN REVIEWING INDEPENDENTLY THE
CITY'S ELECTORAL PLAN EVEN THOUGH THE UNITED STATES HAD AGREED TO
SETTLE THE LITIGATION ON THE BASIS OF THAT PLAN

   The City argues (Br. 20-21) that the district court "failed to give
proper weight to the Attorney General's determination that the 4-2-3
plan satisfied the Voting Rights Act." In addition, the City,
throughout its brief, characterizes the district court's error as its
refusal to approve the plan jointly submitted by the City and the
United States.  The district court committed no legal error in
declining to rubber stamp our negotiated settlement with the City.

   Section 5 assigns primary responsibility to the United States
District Court for the District of Columbia to review voting changes
submitted to it for preclearance.  /27/ While the Attorney General
becomes a party-litigant on behalf of the United States in any such
suit he is not in such circumstances assuming his special role under
Section 5 as the alternate decision-maker to the court.  Thus, the
determination of whether a particular plan has been shown to be free
of discriminatory purpose and effect rests ultimately with the
district court following commencement of a Section 5 suit -- whether
or not agreement can be obtained from the Attorney General.

   Following the district court's denial of the City's request for
declaratory judgment concerning the 8-0-1 and 4-4-1 plans and its
order conditioning preclearance upon adoption of a new electoral
system satisfying the concerns expressed in the court's June 12
opinion, the City and the United States jointly submitted to the Court
the 4-2-3 plan at issue in this appeal.  /28/ The views stated in the
Joint Submission were those of the United States in its role as a
party litigant, in the context of a negotiated compromise, designed to
resolve the litigative issue between the United States and the City.
Having placed the plan before the district court, the City agreed to
let that court make the determination whether the plan satisified
Section 5.

   On that issue, the district court properly exercised its
independent judgment in concluding that a relatively small
modification was required.  In making its determination, the district
court considered the fact that the United States was willing to accept
the 4-2-3 proposed plan as a compromise resolution of the lawsuit.  In
the Joint Submission, we expressly acknowledged that the question was
a close one, and we so advised the court (see page 10, supra).  In
searching for a plan that equitably protected the rights of the blacks
and the prerogatives of the City, the district court viewed the matter
differently, as it was fully empowered to do.  The fact that the plan
was jointly submitted with the United States does not affect the
propriety of the district court's decree.

                              CONCLUSION

   The judgment of the district court should be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   CARTER G. PHILLIPS

      Assistant to the Solicitor General

   JESSICA DUNSAY SILVER

   MARIE E. KLIMESZ

      Attorneys

   JUNE 1982

   /1/ Between six and seven percent of the City's population is
composed of Mexican-Americans (J.A. 7a).  In using census data to
calculate the percentage of the population comprised by whites, the
court assumed that the Mexican-Americans had also been included within
the "white" category and therefore subtracted them, as well as blacks,
from the total population to arrive at the figure for whites (J.A.
5a-7a n.5, 23a n.80).

   /2/ Under Texas law, incorporated cities join together by the
process of consolidation.  Unincorporated areas, however, may be
annexed by municipalities authorized to do so by law.  Consolidation
requires the consent of the voters of each area.  Annexation may be
accomplished even over the protest of residents of either community.
See generally 39 Tex.Jur.2d, Rev., Municipal Corporations Sections 61
et seq. and 96-97 (1976).

   /3/ We adopt here the shorthand reference system used by the
district court for describing the various electoral plans.  The "7"
refers to seven at-large council seats, the "0" to the fact that no
members were to be elected from single-member districts, and the "1"
to the seat held by the mayor.

   /4/ The City's attempt to implement the voting changes adopted in
conjunction with the consolidation, while the request for preclearance
was pending, was challenged by black voters.  A three-judge court in
Texas enjoined implementation.  Mosely V. Sadler, No.B-78-69-CA
(E.D.Tex.Mar.27,1978) (J.A. 42a).

   /5/ The residency districts were drawn so as to create two
predominantly black districts, with a third projected to become
majority black by 1984 or 1985 (J.A. 26a).

   /6/ At the time the plan was formulated, the City's demographer
estimated that the four districts would be 84.23%, 12.48%, 06.85%, and
63.95% black.

   /7/ The firefighters' plan called for six members of a nine-member
council to be elected from single-member districts, with the mayor and
the two remaining council members to be elected at-large (the "2-6-1"
plan) (J.A. 27a).  The firefighters successfully petitioned to have
this proposal placed on the special referendum ballot.

   /8/ The United States sought to enjoin the referendum election
before a three-judge court in the Eastern District of Texas on the
ground that the City wanted to implement the voting changes occasioned
by the unprecleared consolidation and annexation.  That court
permitted the election to proceed, however, and, on September 5, 1980,
allowed the city to certify the city charter amendment for the "sole
and limited purpose of complete submission" of the amendment to the
court below in which the city's declaratory judgment action concerning
the 8-0-1 plan was then pending.  United States V. City of Port
Arthur, C.A. No. B-80-216-CA (E.D. Tex.) (emphasis in original)
(J.S.App. 43a-44a).

   /9/ The court also concluded that the 6-0-1 plan, which preceded
the expansion, would fail to insure the black community an opportunity
to obtain representation commensurate with its voting strength in the
enlarged community (J.A. 62a-63a).

   /10/ The court also found that any suggestion that an at-large
system would enhance the position of Mexican-Americans was based upon
the false assumptions that Hispanics were evenly distributed
throughout the City and that whites would support a Mexican-American
candidate out of a sense of fairness (J.A. 72a).  Given that the City
had amended its charter to permit a change in the electoral system,
the court also rejected the City's contention that it was without
power to change from an all at-large system (ibid.).  The court also
found "quite tenuous" the suggestion that Port Arthur residents
continued to associate the single-member district system with the
corruption that was present under the ward system of the 1950's
(ibid.).

   /11/ Reference to this plan as the "4-2-3" plan, which deviates
from the system explained page 4 note 3, supra, is necessary in order
to distinguish it from the "2-6-1" plan discussed previously, see page
6 note 7, supra.

   /12/ The majority white districts which form the sixth district are
18.13% and 3.99% black.

   /13/ Two intervenors objected to the plan, but two others, with
reservations, accepted the plan "in light of the Justice Department's
acquiescence" and the need to have a new City Council elected without
undue delay (J.A. 84a).

   /14/ When it extended the Voting Rights Act in 1975 for an
additional 7 years, Congress was painfully aware of this phenomenon.
In describing the "continuing need for this preclearance mechanism"
the Senate Report observed:

      As registration and voting of minority citizens increases, other
      measures may be resorted to which would dilute increasing
      minority voting strength.  Such other measures may include
      switching to at-large elections, (and) annexations of
      predominantly white areas * * * .

   S. Rep. No. 94-295, 94th Cong., 1st Sess. 16 (1975) (emphasis
added), citing Civil Rights Commission, The Voting Rights Act:  Ten
Years After 204-207 (Jan. 1975).  See also H.R. Rep. No. 94-196, 94th
Cong., 1st Sess. 10 (1975);  121 Cong.Rec.16248, 16251 (1975) (Rep.
Edwards);  id. at 16277 (Rep. Roybal).

   /15/ Obviously, some plans, such as the first two (8-0-1 and 4-4-1)
submitted by Port Arthur in this case, are so blatantly discriminatory
in their purpose and effect that no simple modifications can save
them.  In such a situation, all that the district court can do is deny
preclearance and send the city back to the drawing board with some
general guidance.

   /16/ In attempting to show that the City's plan assures blacks
reasonable equivalence of voting strength, appellant focuses
exclusively and frequently (Br. 7, 9, 12, 15, n.14, 16, 17) on the
proportion of the black voting age population, which is about 35% in
the expanded city.  Appellant cites (Br. 7 n.6) City of Rome as
indicating this Court's "strong preference" for using voting age data.
 But this Court in City of Rome merely indicated its preference for
both voting age data and general population data over voter
registration data.  446 U.S. at 186 n.22.  The Court expressed no
preference between voting age and general population figures.  The
former indicate the immediate effect on representation of the City's
plan and the latter indicate the likely long term consequences of the
plan.  Thus, to focus on the 35% is to devalue the potential black
electoral strength, which may properly be accorded some weight in
light of the small likelihood that blacks will be able to enlarge the
number of candidates they can elect even after the voting age
population grows.

   /17/ Even assuming that appellant is correct that the district
court's discretion ends once the City has provided for proportional
representation, the district court still would remain the primary
judge of whether the minority's voting strength is equivalent to its
size in the expanded city.  Moreover, before the court's review of the
at-large features of a mixed single-member, at-large scheme were
pretermitted, we submit that the record would have to show that blacks
have a virtual guarantee of proportional representation.  Such a
guarantee is quite dubious here in light of the variables that affect
our ability to judge the City's electoral scheme.  For instance, the
black population in Port Arthur constitutes 40% of the expanded City,
but only 35% of the voting age population.  Obviously, a comparison
between the percentage of controlled seats and either population
statistic alone gives important information about either present or
probable future representation.  See note 16, supra.  Thus, the
district court could reasonably have regarded the differential in
representation as something greater than two percent.

   Second, whether the black minority will be able consistently to
choose a black candidate from District 4 is not wholly free of doubt.
The 1980 census shows that the black population was 61.2%, somewhat
lower than the estimates used by the district court (J.A. 30a-31a).
This percentage is sufficiently low that it does raise at least a
doubt as to the ability of blacks to prevail in elections in that
district (J.A. 58a n.160).  Although the district court was correct
that in District 4, blacks are provided "the chance to elect a
candidate of their choice" (ibid.), this hardly seems adequate to
justify completely disregarding all other facets of the City's
electoral plan.

   /18/ The City relies heavily (Br.8, 9, 12, 15, 18) upon the results
of the interim elections for council members from the six
single-member districts created by the plan now before the Court as
demonstrating that the City of Richmond standard has been satisfied.
However, we view the district court's action as prompted primarily by
its concern about the use of a majority-win provision for the two
nonmayoral at-large seats rather than about the single-member
contests.  Thus, we do not believe that the outcome of those elections
would change the decision reached by the court.

   Since those elections involved only single-member districts they
supply no insight into the effect of the majority vote feature on the
at-large elections in the expanded community.  The only election
relevant to that issue was the at-large mayoral election where a white
and a black man ran against each other in a run-off and the white
candidate won (Br. Add. 16b).  Thus, that election confirms the lack
of influence blacks have in at-large elections with a majority-vote
requirement.  In addition, a single election is hardly a conclusive
basis for declaring the findings of a court of equity to be erroneous.
 The elections are some evidence that blacks will have influence in
the single-member districts, but it hardly warrants ignoring every
other aspect of the plan.

   /19/ Unresponsiveness was demonstrated by the following factual
findings:  the black residential neighborhoods in the City were most
in need of municipal improvements;  the public library was relocated
to, and a new civic center was built in, an area less accessible to
most minority residents;  black municipal employees disproportionately
occupy lower paying positions;  and there has been a
disproportionately low number of blacks appointed to the City's boards
and commissions (J.A. 35a-36a).

   /20/ A majority vote requirement can impede black voters from
concentrating their vote behind one or a limited number of candidates.
 Assuming that the vote of the white community is divided among a
number of candidates, the candidate thus favored by the black
community has a good change of being elected.  See City of Rome V.
United States, 446 U.S. 156, 184 n.19 (1980).  However, where there is
a majority vote requirement, the candidate favored by the black
community must compete in a run-off election in which the candidate
favored by the white majority inevitably wins.

   /21/ The record contains testimony by several black candidates
concerning the effect of the majority vote feature of the at-large
elections in Port Arthur.  There was testimony that blacks could not
be elected at-large nor could the black community have any impact upon
the at-large elections because of the combination of racial bloc
voting and the majority vote requirement (Evans Dep. 31-32;  Scott
Dep. 11, 18, 20-21).  A black candidate who has been elected to the
school board contrasted the school board election system, which
provides for multi-member, at-large elections with the winner
determined by plurality vote, to the councilmanic elections (McElroy
Dep. 6, 15-16).  He stated that under the plurality win system, blacks
have a much greater say about the outcome because blacks are able to
concentrate their vote (see also Evans Dep. 32-33).  Although one
black council member has been elected at-large, he has enjoyed the
benefits of incumbency since 1963 (when the city changed from the ward
system to the at-large system) and has faced only black opponents
since then (J.A. 40a).  An analysis of voting patterns by race
demonstrates that he has not been the choice of the black community in
recent years (J.A. 40a, 59a).

   /22/ The court expressed reservations regarding its "authority to
affect the at-large rule directly" in light of this Court's decision
in Beer V. United States, 425 U.S. 130 (1976).  Reliance on Beer in
this context, however, was misplaced.  In Beer, the district court was
without authority to affect the at-large seats because, having existed
without change since 1954, they were not subject to review under
Section 5.  Here, however, there was not only an enlargement of the
City's boundaries, but also an expansion of the at-large system into
the enlarged area.  In this context, therefore, the at-large system
was clearly subject to the preclearance requirements.

   In City of Petersburg V. United States, 354 F.Supp. 1021, 1031
(D.D.C. 1972), aff'd, 410 U.S. 962(1973), the district court approved
the annexation only on condition that the city "shift from an at-large
to a ward system of electing" its council members.  That decision was
approved by this Court in City of Richmond, supra, 422 U.S. at 370.
Conversion to an all single-member system is one way of correcting the
dilution caused by an annexation;  the method employed by the district
court here is another.  The United States introduced into evidence, as
a benchmark against which to measure the City's proposed plan under
the City of Richmond standard, a fairly-drawn nine-member ward type
plan (with the mayor to be selected from among the successful
candidates as under the pre-1963 ward system) (J.A. 8a;  Def. Exh.
134) under which black voters could reasonably expect to elect
candidates of their choice in 4 of the 9 districts.  As appellant
notes (Br. 13), the United States concluded that a fairly-drawn
single-member district plan with eight districts would not increase
minority representation appreciably over the original 4-2-3 plan.  We
also agreed with appellant, however, that under an eight-member plan
the black percentage in a fourth district might be "sufficiently high
to exert a 'swing vote' influence" (J.A. 80a n.2).

   /23/ One advantage of a ward plan over a plan that relies upon
at-large election is the greater sensitivity of the single-member
system to demographic changes.  Thus, while the at-large system with a
majority vote requirement, in the context of racial bloc voting, is
not fully responsive to the growth of black population unless it
becomes a majority of the population city-wide, a single-member system
reflects changes in residential neighborhoods as they occur along the
scale toward city-wide majority.  An at-large system with a majority
win provision such as originally proposed by the "4-2-3" plan might
well lock out black voters in Port Arthur unless and until they gain
majority status or racial bloc voting ceases.  Future annexation of
white areas could prevent the former eventuality from occurring.  The
plurality win condition imposed by the district court's order would
serve to ameliorate this lock-out effect.

   /24/ The decision below is in this respect highly particularized;
the district court reviewed the newly proposed plan against the
backdrop of two previous blatant attempts by the City to avoid
complying with the requirements of Section 5 of the Voting Rights Act.
 In this context it is not surprising that the district court would
take special care to scrutinize every aspect of the plan to make
certain that features proposed previously to undermine black influence
were not carried forward in more subtle fashion to protect white
control in the City Council for the foreseeable future.  In this
respect, the district court was in a small way performing the very
function envisioned for it by Congress when it enacted the Voting
Rights Act.  Section 5 was adopted to discourage cities from
"contriving new rules of various kinds for the sole purpose of
perpetuating voting discrimination in the face of adverse federal
court decrees." South Carolina V. Katzenbach, supra, 383 U.S. at 335.
See H.R. Rep. No. 89-439, 89th Cong., 1st Sess. 10-11 (1965);  S. Rep.
No. 89-162 (Pt. 3), 89th Cong., 1st Sess. 8, 12 (1965).

   /25/ In this case the imposition of a residency requirement for the
at-large seats replaced the City's proposal of having numbered posts
for those seats.  City Of Port Arthur's Report To The Court Pursuant
To Order Of June 12, 1981.  Although both residency districts and
numbered posts often have a dilutive effect upon minority voting
strength because of their tendency to promote head-to-head contests,
at least with a residency requirement there is a greater chance that
the candidate elected from one district will have interests in common
with the 70% black residents of that district.  Nonetheless, it is
clear that there are significant pockets of white voters in District 5
(the residency district for one of the at-large seats), from which a
candidate with attitudes suitable to the white majority outside of
that district could emerge.  The district court recognized that the
newly acquired Sabine Pass in District 5 might supply candidates who
would not necessarily be influenced by blacks, who live within the
same district, but who are not within very close geographic proximity.
 In addition, the 1981 elections show that Precinct 33 of the City,
which is a predominantly white community within District 5, obviously
has voting interests very different from the majority in that
District.  In the council-manic elections, that precinct supplied well
over 50% of all the votes received by the white candidate, Cherry R.
Ebeling (Br. Add. 4b).  In addition, in the run-off race for mayor,
Precinct 33 heavily supported the white candidate, while the black
precincts (52-59 and 81) overwhelmingly voted for the black candidate
(id. at 3b).

   /26/ The plan as modified should, in the long run, reduce the
tendency of the voters in Port Arthur to vote in racial blocs.  With
plurality voting in the at-large seats, the candidates for those seats
will almost certainly have to be somewhat solicitous of the black
vote.  Once black interests begin to be represented by white elected
officials, then blacks should become less concerned about voting as a
racial group.  Moreover, without head-to-head contests split along
racial lines, whites will have less incentive to vote as a racial
bloc. Eventually, even with blacks holding a distinct minority of the
City Council seats, race should become less of a factor in deciding
how to vote.  See Senate Hearings, supra, at 38, 67, 116 (effect of
Voting Rights Act has been to reduce race-consciousness in elections).

   /27/ The City's argument turns the statutory scheme for the
respective roles of the court and the Attorney General on its head.
The statute contemplates that the district court will be the primary
reviewer of voting changes of covered jurisdictions.  See South
Carolina V. Katzenbach, supra, 383 U.S. at 335;  Roman, Section 5 of
the Voting Rights Act:  The Formation of an Extraordinary Federal
Remedy, 22 Am. U.L. Rev. 111, 124 (1972).  The administrative
alternative of review by the Attorney General "merely gives the
covered State a rapid method of rendering a new state election law
enforceable." Allen V. State Board of Elections, 393 U.S. 544, 549
(1969).  The Attorney General, in reviewing the changes submitted to
him, applies legal principles and standards developed by the court.
See 28 C.F.R. 51.39.

   /28/ We do not understand the City to argue that the Attorney
General in fact precleared the 4-2-3 plan.  Had he done so, there
would have been no further judicial review under Section 5 of his
determination.  Allen V. State Board of Elections, 393 U.S. 544,
549-550 (1969).  Neither should the views expressed by the United
States in the Joint Submission be considered as tantamount to the
preclearance of a plan submitted to the Attorney General under the
procedures established by Section 5;  see 28 C.F.R. 51.18-51.26.