William H. Rehnquist: You may proceed whenever you are ready, Mr. Corcoran.
Thomas G. Corcoran, Jr.: Mr. Chief Justice, and may it please the Court: The City of Pleasant Grove submits that it has borne its burden in this case to show, as it must show, that the two annexations which it voted to carry out do not have the purpose of discriminating with respect to the right to vote on grounds of race. To show that we have done this, I'd like to start with the general physical surroundings of Pleasant Grove, and move on and discuss then the annexations that the city has attempted to make, and then discuss the annexation which we decided... the city decided not to make. I'd like to start with the highway map of Jefferson County to place Pleasant Grove in perspective. Pleasant Grove... this highway map is attached to the Parmley deposition. It's reduced. It's not in color. But I think you can see the city just to the--
William H. Rehnquist: It is a part of the record, then; it's a part of the deposition?
Thomas G. Corcoran, Jr.: --Yes, Your Honor. The original, in color and blown up, is. Pleasant Grove is the first city directly to the west, about the center of Birmingham, center south of Birmingham. It's to be noted, Your Honor, that it's almost a perfect square. If this city has been avoiding black areas and taking in white areas, it's been very--
William J. Brennan, Jr.: I'm sorry, Mr. Corcoran. I can't locate it. Can you point it out?
Thomas G. Corcoran, Jr.: --Yes, Your Honor. It's right here.
William J. Brennan, Jr.: Yes, thank you.
Thomas G. Corcoran, Jr.: Next I'd like to draw the Court's attention to a reduced copy of the postal map of Pleasant Grove. This is Exhibit B to... it first appears in the Joint Appendix. It's referred to on page 5. It is a reduced copy of what's already in the record, and it's not always legible but it does show the annexations. Basically, the annexations in question in this case are on the far west of the city, the area marked 1979. That's the western annexation. Then, there is a small area in the northwest corner of the city. It's just a quarter section. It's just 40 acres. That's marked 1969. That's the Glasgow addition. It actually was annexed in 1971 but the petition was in 1969. I'd like the Court to note that if you go all the way around Pleasant Grove, there are no... there are basically no roads except in the south, the southeast of the city. All those areas except for the southeast of the city are rural areas. The testimony of this map is corroborated by two geological survey maps which are also in the record. They are defendant's Exhibits 28 and 29, and they are attached to the Parmley deposition. It is important to note that Pleasant Grove, even after all its annexations, is almost completely surrounded by uninhabited territory because, the fact is, before the Highlands area was... the Highlands area was developed in the late 1970s, and the Highlands is a little... is one 40-acre square to the southeast corner of the city, and it's called West Smithfield Petition, because that's the old name of Pleasant Grove Highlands. It's right here, Your Honor.
William J. Brennan, Jr.: Thank you. Does it say "West Smithfield"?
Thomas G. Corcoran, Jr.: It does, Your Honor. It's right here. It's hard to read, I'm sorry.
Speaker: It sure is.
Thomas G. Corcoran, Jr.: It's easy to read on the original.
William H. Rehnquist: That's not much consolation.
Thomas G. Corcoran, Jr.: True, Your Honor. It's important to note that before the Highlands was developed, there were no contiguous black areas to Pleasant Grove, and there were no close black areas except the Dolomite area, which is in this corner of the map. Under Alabama law, to annex a... for a city to annex territory, it has to be contiguous. Therefore, before the Pleasant Grove-Highlands area was developed, there was no conceivable annexation partner for Pleasant Grove, and therefore there can be no evidence of a pattern of selective annexation.
Antonin Scalia: What was annexed? You're saying--
Thomas G. Corcoran, Jr.: Before the development of Pleasant Grove Highlands, which is here called West Smithfield--
Speaker: --Right.
Thomas G. Corcoran, Jr.: --which was in the late 1970s, there can be no evidence of a pattern of selective annexation because there were no blacks to annex. They weren't contiguous to the city. If you wanted to annex blacks, you would have to get the permission of the intervening land owners and reach out to areas of black concentration outside of the city. There were no contiguous areas. Everything that was annexed was contiguous. I'd also like to call the Court's attention to the third exhibit, which is not part of the record but it's referred to in my... it's referred to in my reply brief. This is a decision which came down this year from the Tenth Judicial Circuit of Alabama, and we're under an obligation to keep the Court apprised of developments which may affect the case. Birmingham annexed all of the area, all the way around Pleasant Grove, and it was set aside in this opinion and it's now on appeal to the Supreme Court of Alabama. But what I'd like to bring the Court's attention to is the language on page 4 in the last complete paragraph. There's a finding there that the area of Pleasant Grove Highlands and Dolomite together, if annexed by the City of Birmingham, would not pay the City of Birmingham in taxes enough to cover the cost of services, and I'll get back to that when I get to Pleasant Grove Highlands. The other developments in this case are that four additional black families either have moved into Pleasant Grove or have houses under construction, so we now have three black families in Pleasant Grove, two houses under construction. We have two black voters in Pleasant Grove. I just determined this today. Four of these five houses are in the area of the 1967 annexation, which is relevant because as we have argued, all annexations to Pleasant Grove tend... well, they don't tend very much... but they do tend to integrate the city. We submit, Your Honor, that the annexation of the western addition, the time it was made, it's already been held there was no discriminatory effect. We contend that we've shown that there can't be a discriminatory purpose, because if you look at what could have been in the minds of the city councilmen at the time that they voted for this annexation, there's no way, there's no rational, racial purpose that can arise. First of all, at the time they made this decision... this is February of 1979... there's been no annexation in eight years. The last one was the Glasgow annexation. The last considerable annexation was in 1967. The '67 annexation was in three parts, but the main parcel which is about 1,600 acres is very much like the western addition. It surrounds the city to the west and the south, and the western addition tacks onto that. That was almost entirely undeveloped land. The city's conviction is that it gets money from that, and the record bears that out. That annexation, the one in 1967, was pre-cleared by the Justice Department. That's number one. Number two, they're adding vacant land owned first by the city and second by developers living within the city. Third, it's uncontroverted on this record that taking in undeveloped land yields substantial fees for the city. The Mays affidavit, which is at the end of the Joint Appendix... we have to do some additions and subtractions... but the Mays affidavit shows that development fees contributed 25 percent of expenditures in the two years before this vote in 1979, about 25 percent. Fourth, Pleasant Grove was all white. It doesn't have a white majority that it needs to defend. And finally, all annexations, logically, because they add new houses, because we have fair housing laws, every time we add a new house, every time we put a house on the market for sale, if you're all white and you want to stay all white you don't add new houses.
William H. Rehnquist: We'll resume at 1:00 o'clock, Mr. Corcoran. We'll resume argument now in City of Pleasant Grove versus United States. You may continue, Mr. Corcoran.
Thomas G. Corcoran, Jr.: Thank you, Your Honor. The other annexation that is at issue here today is the Glasgow annexation. This is more difficult for us to justify under Voting Rights Act criteria because it was... Glasgow's petition in 1969 at a time when Jefferson County schools were being desegregated and Pleasant Grove was attempting to set up its own separate school system, the Glasgows were in that school; that is, they were in the Pleasant Grove school at the time the changes were made, and they wished to remain there. So, they asked to be taken into the city, and because they were good friends, basically, of a city councilman named Mr. Parmley, as Judge McKinnon found, they got in. When the District Court required us to add the Glasgow annexation to our complaint, to pre-clear the western annexation, we told the court that rather than do that we would prefer to abandon it, and the court told us that they wouldn't allow us to do that. That's not relevant except if the argument is made that we're trying to add white voters, we certainly tried to get rid of these white voters, as soon as any difficulties were presented, in favor of an area with no white voters, to with, the western addition which has no people in it at all, at least for the moment. But if we look at what goes through the mind of a city councilman, and if the issue is, are they discriminating with respect to voting, at the time they make that decision, we submit, they are not discriminating with respect to voting. There are no black areas petitioning at that time, for the reason that we stated before, there were no black areas continguous to Pleasant Grove until the late 1970s, and this is 1969. They got in because they were in the school. They were friends of people in Pleasant Grove, and they let them in so they could stay in the school. This brings us to the area which the government claims we should have let in and we did not let in, on racially discriminatory grounds, and that is the area of Pleasant Grove Highlands which is that 40-acre section to the southeast of the city which is marked, "West Smithfield Petition". When this petition came to the attention of the city council, they appointed a committee to study it and the committee basically concluded, based not on any new study it made but on its practice in the last... since 1967, to take in undeveloped land to get the development fees, that it was not economical to take it in. What they did give them was free fire and paramedic protection. They did that because what precipitated--
Speaker: For economic--
Thomas G. Corcoran, Jr.: --Yes, but that is--
Byron R. White: --Do they sell them? Do they sell them or do they give it?
Thomas G. Corcoran, Jr.: --No, they gave it to them. They had given it to them. They had given their neighbors, basically, free fire and paramedic protection. They had given it to the Glasgow addition before they annexed them. They gave it to these people on their southeast border. They gave it also to some of the people in Dolomite. When in 1979, after the decision to take in the western addition, they decided that there were too many strings on their fire and police... basically their fire and paramedic... and they announced that they were going to withdraw it, and immediately they got... not immediately, but first from Pleasant Grove Highlands and later from Dolomite that same year, they were asked to be annexed. It's uncontested, in any event, the government did not contest below, our figures showing that if Pleasant Grove Highlands were annexed to the city it would only pay in taxes about 14 percent of the cost of services in 1980.
Antonin Scalia: That's services to them, or services everywhere?
Thomas G. Corcoran, Jr.: It's a estimate of the cost of services to them, and the estimate is based on an assumption that they will cost exactly the same as everyone else does per capita. The way the figure was created, Your Honor, is they took the total cost of services for Pleasant Grove. They divided it per household, or per capita, I'm not sure which, either per capita or per household, and they figured out how much it cost per household. And then they figured out how many households there were in Pleasant Grove Highlands and assumed that they'd pay the same per capita taxes as everyone... no, they didn't assume that. Sarah Mays, as the city treasurer, went through what you get in taxes, and made an estimate which was conceded by the government as to what would go up in rough proportion to population if Pleasant Grove Highlands was annexed. And the figure that came out was 14 percent, and the government conceded the accuracy of the figure.
William H. Rehnquist: Mr. Corcoran, this evidence that you are referring to now, I take it you cite it to show the absence of a discriminatory intent or purpose on the part of the city council?
Thomas G. Corcoran, Jr.: Yes.
William H. Rehnquist: Well, the District Court found otherwise. If we should say that that finding isn't clearly erroneous, do you nonetheless... did you lose your case?
Thomas G. Corcoran, Jr.: Yes. You have to find that that's clearly... you have to find that the District Court's findings were clearly erroneous.
William H. Rehnquist: But if we find that the District Court's finding on this question of purpose was not clearly erroneous, and that the city council did act in on or more of these transactions with a discriminatory intent, does that mean you lose your case?
Thomas G. Corcoran, Jr.: If you find that with respect to the decision on the western addition or the Glasgow annexation there was a discriminatory purpose, then we fail. Then we lose. If you find there was no discriminatory purpose on the Glasgow addition or the western annexation but there was in the Pleasant Grove Highlands decision, then our argument is that we win.
William H. Rehnquist: And why is that? Why is the presence of discriminatory intent with respect to a couple of those annexations controlling, but not with respect to the other?
Thomas G. Corcoran, Jr.: Because those two annexations are the two annexations which are the subject of the Voting Rights Act, of Section 5 of the Voting Rights Act. The Voting Rights Act only covers changes. It doesn't cover non-changes. The decisions to take in the Glasgow annexation and the western addition were changes, and thus covered by the Act. The decision not to take in Pleasant Grove Highlands was not a change and thus not covered by the Act. And thus, if you decide that there was discrimination in not taking in the Pleasant Grove Highlands, the government can sue and undertake the burden of proof and, as in Gomillion v. Lightfoot--
William H. Rehnquist: But that's not a Voting Rights Act--
Thomas G. Corcoran, Jr.: --That's not a Voting Rights Act case. And the important fact, of course, is who's got the burden of proof. Putting the burden of proof on the city is very onerous, and we submit Congress only intended to change the burden of proof in the cases which it set out in the statute, and that's just changes.
Byron R. White: --Well, I'm still not quite sure why you think that you lose the case if there is a discriminatory purpose in taking in the western and Glasgow.
Thomas G. Corcoran, Jr.: Well, perhaps I shouldn't--
Byron R. White: It couldn't have any impact on the Voting Rights, could it?
Thomas G. Corcoran, Jr.: --Well, that's the question, Justice White. We have to show under Section 5--
Byron R. White: Do you think that you... are you agreeing with Judge McKinnon or not?
Thomas G. Corcoran, Jr.: --On the whole, yes.
Byron R. White: Well, what do you think he thought about discriminatory purpose, about the western--
Thomas G. Corcoran, Jr.: His argument, as I remember it is, how can there be a discriminatory purpose if there is no discriminatory effect. You're just creating a legal fiction if you pretend there's a discriminatory purpose where there's no effect. Now, there are some factual situations, as in the Busby case, which is cited.
Byron R. White: --Well, why do you say there was coverage on those two annexations? You say they were changes? Were they? Changes in what?
Thomas G. Corcoran, Jr.: Well, you can make an argument... we haven't made this argument because we didn't think we had to make it, but you can make the argument that adding vacant land is not a Voting Rights... is not a change of Voting Rights practice, because there's nobody there. That argument--
Byron R. White: Why is taking in the Glasgow a change?
Thomas G. Corcoran, Jr.: --Taking in the Glasgow is a change, because there are voters in the Glasgow addition. Now, it has no discriminatory effect, obviously, because there are no black voters in Pleasant Grove to have their vote diluted. Well, finally, it's also not contested that $45,000 in development fees are given up if you take in the 79 houses in Pleasant Grove Highlands rather than building them out in the western addition and getting your development fees up front. Also, there's a racially discriminatory effect if you take in the Pleasant Grove Highlands, because they vote as an insignificant minority in Pleasant Grove instead of as a considerable minority in Jefferson County. The government correctly puts out that they still get to vote in Jefferson County, but the essential services of local governments will be protected by... will be provided by Pleasant Grove and not Jefferson County. Finally, Your Honor, we concede that you can look at the Pleasant Grove Highlands decision to determine whether there was a discriminatory purpose as to the decision made two months earlier on the western addition, or the decision made eight years earlier on the Glasgow addition. It's technically relevant but it's not very probative, because first of all, they don't know it's coming. The reason that Pleasant Grove Highlands petitioned was that they got their paramedic and fire cut off a month later, and we also say it's not very probative because Pleasant Grove Highlands is so unpersuasive from an economic point of view as a rational annexation partner. May I reserve the rest of my time?
William H. Rehnquist: Yes, you may. We'll hear now from you, Mr. Ganzfried.
Jerrold J. Ganzfried: Thank you, Mr. Chief Justice, and may it please the Court: The issue in this case is whether the City of Pleasant Grove has sustained its burden of proving that its decisions to make two annexations, the western addition in 1979 and the Glasgow property in 1971, its burden of proving that those two decisions were made without a racially discriminatory purpose or effect.
William H. Rehnquist: Tell me, were there people in both the western addition and the Glasgow annexation?
Jerrold J. Ganzfried: At the time of the annexation, the Glasgow annexation, there were people living there. They petitioned for that annexation four days after the Federal District Court had entered its desegregation order for the Pleasant Grove Schools, and four days after Pleasant Grove announced that it was going to secede from the county school system to set up its own. In the western addition there were no people living there at the time of the annexation.
William H. Rehnquist: Well, how did the annexation dilute anyone's voting rights?
Jerrold J. Ganzfried: Our contention is not that it did dilute anyone's voting rights. Our position is that the annexation, which expanded the borders, political borders of the city, expanded the franchise, was a step that was taken with a discriminatory purpose.
William H. Rehnquist: Well, but what's the effect of this step?
Jerrold J. Ganzfried: It has no present effect. It has a potential effect. It has a present effect in expanding the borders, and when people live there, as it was anticipated, with the express purpose of the annexation, it will expand the franchise and the size of the electorate.
Thurgood Marshall: Mr. Ganzfried, I'm a little worried about having a continuous unit with white and black people, and then you bring in 1,000 white people and say it doesn't dilute anybody's vote.
Jerrold J. Ganzfried: It doesn't dilute the vote of anyone who is presently voting in the city.
Thurgood Marshall: But it does, in the present--
Jerrold J. Ganzfried: It certainly has a potential for diluting the vote.
Thurgood Marshall: --It doesn't dilute--
Jerrold J. Ganzfried: --any black citizen that ever moves into Pleasant Grove, whether by way of moving or by way of being annexed into the city.
Thurgood Marshall: --But their vote--
Jerrold J. Ganzfried: It affects their vote. It would affect their vote.
Thurgood Marshall: --And will that dilute the Negro vote?
Jerrold J. Ganzfried: It will dilute the vote when the day comes that there are black voters in Pleasant Grove. As Mr. Corcoran tells us this morning, there are now--
Thurgood Marshall: Okay. You've got this 1,000 white votes in Jefferson County, and you've got 4,000 Negro votes in Jefferson County, and you annex 2,000 white votes.
Jerrold J. Ganzfried: --It will still be in Jefferson County.
Thurgood Marshall: Well, they'll be in Jefferson County.
Jerrold J. Ganzfried: Jefferson County... the borders of Jefferson County--
Thurgood Marshall: Jefferson County will have 2,000 more white votes and no more Negro votes. And that doesn't dilute it?
Jerrold J. Ganzfried: --It dilutes the vote in Jefferson County, but Jefferson County in this case has only grown internally. It hasn't expanded its boundaries. So that, had there been an expansion of Jefferson County, and that was the jurisdiction that was before us, absolutely there would be a present dilution of black votes, no question about that. This is the city that comes in and says, because it has been absolutely successful in excluding black people from every aspect of life in Pleasant Grove, and as a result there are no black citizens of Pleasant Grove and no black voters in Pleasant Grove, they now seek to be rewarded for the total success of the past discrimination. And they say that that has created an exemption for them from Section 5 of the Voting Rights Act because, after all, since we don't have any black voters in the city, how could anything we do possibly affect the voting rights of black people in the city of Plesant Grove.
Antonin Scalia: Mr. Ganzfried, if I understood your response to the Chief Justice earlier, you concede that the city does not bear any burden of showing no discriminatory motive in not annexing the Pleasant Grove Highlands?
Jerrold J. Ganzfried: Well, Pleasant Grove Highlands, because if was a decision not to make an annexation, did not constitute a change that triggered the Section 5 pre-clearance.
Antonin Scalia: So, that's relevant in view--
Jerrold J. Ganzfried: It is relevant--
Antonin Scalia: --It is relevant only because it is relevant to what their motive was in making the other, earlier annexations?
Jerrold J. Ganzfried: --Well, the western addition is not an earlier annexation. It's a contemporaneous decision, contemporaneous with the decision with respect to the Highlands, Your Honor, because the state statute that permitted the annexation was not signed by the Governor until many months after the Pleasant Grove Highlands petition had--
Antonin Scalia: What was the order of the decision on the two, and how much were they separated in time? When did Pleasant Grove seek the annexation of the western--
Jerrold J. Ganzfried: --That was voted by the council on February 5th of 1979. The date of the petition from the Highlands was in April of '79. The Act was signed by the Governor, authorizing the western addition in July of 1979.
Antonin Scalia: --February, April?
Jerrold J. Ganzfried: February, April and July, at the time that the western... that the Highlands petition was presented, the western addition matter was still pending in terms of being advertised in the local newspapers and was before the state legislature. So, there were certainly contemporaneous decisions made by the same decision makers.
Antonin Scalia: The theory you're asking us to accept is that we should consider it a dilution of voting rights if it has a potential to cause a dilution in the future, when a black person would have moved into Pleasant Grove, right? Because at the time there was no dilution of any minority vote.
Jerrold J. Ganzfried: At the time there was no dilution of anyone who was living in the city, at the time of the annexation.
Speaker: Right.
Jerrold J. Ganzfried: The question of dilution is really a question that arises under the effects prong of Section 5. Section 5 has two prongs. The city has the burden of proving that its actions were not taken with a discriminatory purpose, nor with a discriminatory effect. The question of actual, immediate, present dilution goes to the effects aspect of it, and that is not part of this case.
Byron R. White: What case here would say that if there's a discriminatory purpose that violates the Act, even though there couldn't possibly be any discriminatory effect?
Jerrold J. Ganzfried: Well, let me refer to the City of Richmond case in which, after a long analysis in which the Court concluded that there was no unlawful effect. It then said, so much for the effect prong of Section 5. We are now turning to the purpose prong of Section 5 because the presence of a discriminatory purpose will invalidate a decision even if there is no unlawful effect. And, the Richmond case was remanded on the question of purpose, even though this Court had decided that there was no unlawful effect.
Byron R. White: Is that the closest case in this Court? Is that the only one?
Jerrold J. Ganzfried: I believe... it's not the only one. The Court has said many times that because the statute is written in the conjunctive, that the jurisdiction, seeking approval of its change, has the burden of proving both the absence of a discriminatory purpose and the absence of a discriminatory effect.
Sandra Day O'Connor: But, Mr. Ganzfried, doesn't... to trigger the application of the statute at all, doesn't it have to have some effect on voting qualifications or practices or procedures, and how does taking in vacant land have such an effect?
Jerrold J. Ganzfried: It has that effect.
Sandra Day O'Connor: Even the statute alone--
Jerrold J. Ganzfried: There are two aspects to the way I'd like to answer that. The first is, it has an effect, particularly when it is an annexation of vacant land intended for development, we agree that the annexation of vacant land for building an airport, or to construct a public park, does not constitute a voting change and therefore, as we indicate in our brief, the Attorney General does not require pre-clearance of those sorts of annexations. But when it is an annexation that is intended for the purpose of development, to expand a franchise by adding residential areas to the city, then Section 5 is triggered and there must be clearance before anyone is permitted to vote in those areas. Now, as it happened, the City of Pleasant Grove chose to submit that annexation for pre-clearance immediately following the passage of the legislation, at a time when there was no population in the western addition.
Lewis F. Powell, Jr.: --May I come back to your reliance on the City of Richmond case. Actually, in that case the annexation at issue involved thousands of people in Chesterfield County who were proposed to be annexed, and--
Jerrold J. Ganzfried: The point I was making--
Lewis F. Powell, Jr.: --Do you think that case is analogous to this one?
Jerrold J. Ganzfried: --It's analogous with respect to the point that Justice White's question goes to.
Lewis F. Powell, Jr.: Is it analogous to our decision in this case?
Jerrold J. Ganzfried: It certainly is, because it's a case that turned exclusively on the purpose, even though there was no unlawful effect. The City of Rome case was one where there were uninhabited territories that were annexed.
Lewis F. Powell, Jr.: The effect would have been substantially to dilute the black vote in the City of Richmond. The statistics prove that.
Jerrold J. Ganzfried: But the Court concluded that because the plan that would be in effect subsequent to the annexation provided fair representation that there was no unlawful effect.
Lewis F. Powell, Jr.: It was opposed by the black community only because their vote would be diluted. Well, let's move on. Let's move on.
Jerrold J. Ganzfried: But it affects the point I was responding to Justice White on, namely that there was... it was a case that turned only on purpose where there was no unlawful effect. The City of Rome case is one where there was uninhabited land that was annexed, and the Court found that--
Lewis F. Powell, Jr.: What's your position?
Jerrold J. Ganzfried: --City of Rome, City of Richmond?
Speaker: City of Richmond.
Jerrold J. Ganzfried: Indeed, I would refer also to Perkins versus Matthews in which one of the three annexations that were at issue there, it was pointed out, involved an increase in the population but that added no white voters. Let me get back to the procedural point, Justice O'Connor. The city came in immediately after the annexation. Under Section 5 the Attorney General has only 60 days in which to make a decision on an annexation. If he fails to object, that annexation is pre-cleared and that means that when the day comes that the western addition is populated, as the city intended and anticipated, by the increase of substantial numbers of white population, that there would be no further opportunity for Section 5 pre-clearance. That would defeat the purpose of Section 5 by allowing jurisdictions to manipulate by the timing of their submissions, around the burden of proof, by saying because there's no present effect, therefore there can be no discriminatory purpose. And if that's the case, then the purpose prong has been written right out of the statute.
Sandra Day O'Connor: Does that sort of thing happen a lot? Are we seeing a lot of this annexations of vacant land?
Jerrold J. Ganzfried: Annexation of vacant land is a very common form of expansion, and we've indicated in our brief, the report of the United States Civil Rights Commission to Congress, pointing out that most of the annexations that have been objected to by the Department were to annexations of land populated largely by white people, or to annexations of land that was vacant. It has certainly been made known to Congress that that is the Attorney General's interpretation and Congress has re-enacted Section 5 without change.
Byron R. White: You may have already answered this. Did the Attorney General turn these down, turn these annexations down?
Jerrold J. Ganzfried: It turned the western annexation down. The Glasgow annexation was never submitted to the Attorney General.
Byron R. White: And is his... did he write an opinion?
Jerrold J. Ganzfried: It is a letter to the city that is in the record in this case.
Byron R. White: Now, where is that?
Jerrold J. Ganzfried: It is attached to the Motion for Summary Judgment. That's document No. 24 in the record, and the letter from the Department of Justice is Exhibit F, for that submission.
Byron R. White: But it's not in the Joint Appendix?
Jerrold J. Ganzfried: That letter's not in the Joint Appendix.
Antonin Scalia: I assume, Mr. Ganzfried, that the effect which you must purpose is the same as the effect that is referred to in the other part of the injunctive provision in the statute, okay. So that means that if we hold in this case that there is an invalid purpose, then would it not follow that it is always an impermissible effect for the municipality that's covered by the Act to annex any portion in which white voters will outnumber black voters?
Jerrold J. Ganzfried: No.
Antonin Scalia: Why not?
Jerrold J. Ganzfried: Because the effect that... let me restate our position in the case. I think it might clarify things a bit. Our position is that when a covered jurisdiction makes a change that calls for Section 5 pre-clearance, and certainly this does, and the City sought that pre-clearance, and it makes that change with a racially discriminatory purpose or fails to sustain its burden of proving that it did not have that purpose--
Antonin Scalia: Which purpose is to bring in more white voters than black voters?
Jerrold J. Ganzfried: --Which purpose is to discriminate on the basis of race.
Antonin Scalia: But here you're saying, is to add white voters in excess of black voters, right?
Jerrold J. Ganzfried: In this case the intent is to expand the size of the monolithic white electorate.
Antonin Scalia: That's right. But my point is, if that is a bad purpose in and of itself, then that would always be a bad effect in and of itself as well, wouldn't it?
Jerrold J. Ganzfried: No, because under the court cases that you would look to is whether as a consequence of that change the voting system in that jurisdiction would provide fair representation to minorities on the basis of their share of the population, and--
Byron R. White: Don't you look to see if it diminishes the relative status of--
Jerrold J. Ganzfried: --Well, you look to see if it diminishes. But for example, once again in the City of Richmond case, the changes there did diminish the percentage of the black population in the City of Richmond. The Court found that it did not have an unlawful effect under Section 5. By the same token there are instances--
Byron R. White: --I know, but proportional representation, fair representation is not the test.
Jerrold J. Ganzfried: --Well, let me focus on the purpose prong, because that is really the submission that we're making here.
Antonin Scalia: Now, my concern is that what we do on the purpose prong may affect what we do on the effect prong later on. And if a prospective influx of additional white voters is enough to establish a bad purpose, I would think that a prospective influx of white voters is enough to establish a bad effect as well. So that, every time there is an annexation, one will have to figure out what the likely demographic population in the future is going to be, and if it's likely to be--
Jerrold J. Ganzfried: I think it oversimplifies this case somewhat to say that we have simply a potential influx of white voters. We also have a fencing out of black voters, as indicated not only by the decision not to annex the Highlands area, but as also indicated by the City's decision as early as 1969 not to annex white areas or largely unpopulated areas because of what the Mayor described as the "mushroom" or "snowball" effect that might increase the pressure upon the city later to annex black areas that were at that point a little more on the outskirts of town.
Antonin Scalia: --That's all very helpful.
Jerrold J. Ganzfried: We have a fencing out of black voters.
Antonin Scalia: It's all very helpful when you're deciding a purpose case. But I... which is what this is, but I'm wondering whether your description of what it is that must be purposed will not affect us in... should we use that word... will not alter the kind of decision we have to make in effect cases later.
Jerrold J. Ganzfried: I don't see that it would.
John Paul Stevens: I'll just follow that up with... I guess what you're saying is that if they had developed the land before they sought to annex it, and they have added 1,000 white people in the new development, would that be an unlawful effect or wouldn't it? I think what Justice Scalia is suggesting is, under your rationale here, you'd have to say that effect would be unlawful.
Jerrold J. Ganzfried: In this jurisdiction, the answer to that is probably yes. We haven't taken a position on that because--
John Paul Stevens: Without proving any wrongful purpose in connection with that acquisition?
Jerrold J. Ganzfried: --Okay. If there is no unlawful purpose and it is simply that as a matter of happenstance, and we are assuming out any unlawful purpose in that instance, then it may well be that that would not be an unlawful effect. Simply the fact that demographics move in a particular direction isn't something that we have any control over under Section 5.
Antonin Scalia: It seems to me you are saying that it's not a bad effect because there's no bad purpose, and there goes the end of the--
Jerrold J. Ganzfried: Well, I just followed along on a hypothetical. If the hypothetical is that a city can be in this position, namely, to be an all-white city ringed by concentrations of unincorporated black communities which Pleasant Grove is, and for it to happen just as... without any motive or purpose behind it that only white people continue to move into the city, and there's no racial discrimination involved in that hypothetical, which seems rather remote, then maybe in that instance there's no unlawful effect. But it may also be--
Speaker: --Mr. Ganzfried--
Jerrold J. Ganzfried: --also in that instance you're likely to find that there is an unlawful purpose.
Sandra Day O'Connor: --Why doesn't the Attorney General take the position that unless there is some change in voting, that an application to him for review and approval under this Voting Rights Act section is just not timely? And then you save your right to examine it when in fact there's some voting change--
Jerrold J. Ganzfried: Because of the way the statute is written. If the Attorney General does not object within 60 days, it's pre-cleared. There's no second opportunity. There's no chance to say, well, wait a minute now. Now there are people living there.
Sandra Day O'Connor: --The statute... I mean, as I look at the statute anyway, it doesn't even come into effect unless there's some change in voting qualification prerequisite to voting, or standard practice or procedure with respect to voting that's different. And if there isn't one, how does the statute ever figure at all?
Jerrold J. Ganzfried: Because the city made a submission under Section 5.
Sandra Day O'Connor: So, why don't you say, you can't file one?
Jerrold J. Ganzfried: Because it may very well be that the legal consequence of saying, you're too early, and not objecting to it within 60 days, is that it will be pre-cleared, because the statute says that if the Attorney General has not interposed an objection within 60 days after such submission, then the city is permitted to pursue the change.
Lewis F. Powell, Jr.: May I pursue some of these other questions a little bit? Assume you had two communities, one all white and one all black, and the law in Alabama or whatever state the state may be permitted the white community to annex. Let's assume it decided not to annex any of the black area. Would that be unlawful?
Jerrold J. Ganzfried: It would not trigger Section 5 review. It may well be unlawful under other sections or the Voting Rights Act, but it would not trigger Section 5 because there would be no change.
Lewis F. Powell, Jr.: And why is this case different, because--
Jerrold J. Ganzfried: Because here the city has voted to make an annexation. It has decided to enlarge its boundaries, and it has done it for the purpose of enlarging the franchise. It intended the development. That has been part of the city's submission all along.
Lewis F. Powell, Jr.: --You are saying the city cannot make a choice? It doesn't have to annex anyone, does it?
Jerrold J. Ganzfried: It doesn't. If it makes no annexation, there is no Section 5 review triggered because then, there is not a change.
Lewis F. Powell, Jr.: Suppose there had been no requests for annexation by black citizens.
Jerrold J. Ganzfried: That wouldn't change the equation of whether Section 5 is triggered. It might change the evidentiary facts to be considered.
Lewis F. Powell, Jr.: If there were an area occupied by black citizens and an area occupied by white citizens, and the latter was annexed and the former was not annexed, if there were no requests from the black citizens to be annexed--
Jerrold J. Ganzfried: If there is an annexation, and as I understand that hypothetical there would be, but we have the white area.
Lewis F. Powell, Jr.: --Yes.
Jerrold J. Ganzfried: Then Section 5 would be triggered. The question before the Court would be, is that jurisdiction permitted to annex that white area. The question is not, and it's not in this case, whether it must annex the black area. But its actions in rejecting one and accepting another are indicative of the purpose.
Lewis F. Powell, Jr.: So, the fact that there was an area here, a black area that wanted to be annexed at an earlier date makes no difference to this case?
Jerrold J. Ganzfried: It makes a very important evidentiary difference as to the city's purpose. It makes no difference as to whether there is an obligation to file for pre-clearance under Section 5 because that obligation was triggered only by the decision to make an annexation, not by a decision not to make an annexation.
Lewis F. Powell, Jr.: Even though there is no change whatever in voting rights of the black citizens, or indeed the white citizens?
Jerrold J. Ganzfried: There is no present change, but what we have here is a--
Lewis F. Powell, Jr.: --there will ever be a change--
Jerrold J. Ganzfried: --If there was never to be a change, the Attorney General does not take the position that the city would ever have to come in and submit for pre-clearance. If they wanted to build an airport, if they wanted to leave it as a forest preserve, that would not trigger a voting change. But what we have here is the city making an annexation for purposes of development for residential housing. And because it makes it much easier, apparently, for the city to pursue that development to know in advance that it is part of the City of Pleasant Grove, that it submitted for pre-clearance.
Lewis F. Powell, Jr.: --It may not have any effect on voting for ten, fifteen, twenty years.
Jerrold J. Ganzfried: It may or may not. It presently, however, has the potential to affect voters and it is presently taken for the purpose of enlarging the white electorate and fencing out the blacks living in the environs of Pleasant Grove.
Lewis F. Powell, Jr.: So, we decide this case on the basis of potential conduct that may or may never occur?
Jerrold J. Ganzfried: Well, you decide it on the basis of the city's purpose. Let me say that when it's suggested that the potential conduct may or may never occur, is to say that the city must lose that case because it is the city's burden of proving that its annexation will have no effect. To say "may or may not" is to say the city has not met that burden.
Antonin Scalia: Mr. Ganzfried, why is that even a plausible purpose to attribute to the city? You have a city that has not a single black voter at the time the annexation is made. There are fair housing laws. So, it's clear that every time you sell a house you're taking a chance if you want to preserve that kind of an electorate. You're taking a chance that a black will buy that house. Why is it even plausible that if the city wanted to keep an entire white electorate, it wouldn't annex anything--
Jerrold J. Ganzfried: --writing on a clean slate here, the City of Pleasant Grove made a similar annexation in 1967. The history of that development has been with all of the laws you have just referred to, is that in the areas annexed in 1967 that have been developed, they have provided residential housing for white people and not for black people. So, when this submission--
Antonin Scalia: --Always a chance, though. Every time a house is sold there's a chance.
Jerrold J. Ganzfried: --In every Section 5 case there is always a chance that the effect that the Court looks at from the statistics may not occur. Section 5 is a pre-clearance statute. The determination is made before the changes go into effect. There is never an actual effect in a Section 5 case. There is always some measure of prediction. We are saying that in this case, based on this record and what the District Court regarded as the astonishing hostility to the rights of black Americans, that the evidence is sufficient to make that determination here, that the city's purpose rightly or wrongly in terms of what the future may bring in terms of... into this area, that its present purpose was to enlarge the white electorate, to fence out black voters so that should any blacks move into Pleasant Grove their votes... they would be an even smaller minority than they are today. The fact of the matter is that the city was building on a history of some 40 years in which there were no blacks who lived in Pleasant Grove.
Byron R. White: Did the District Court find there was a discriminatory purpose?
Jerrold J. Ganzfried: Yes, it did.
Byron R. White: It just didn't find that the city had failed to carry its burden of--
Jerrold J. Ganzfried: It said, not only has the city failed to carry its burden but that even had the burden been on the government, that the result would have been no different, that there was clearly a discriminatory purpose.
Antonin Scalia: --In the annexation?
Jerrold J. Ganzfried: In the annexation and in the city's implementation of its annexation policy of enlarging the white electorate and fencing out the black electorate.
Antonin Scalia: In this annexation, not in the--
Jerrold J. Ganzfried: There are two annexations.
Speaker: --In the two annexations--
Jerrold J. Ganzfried: In these annexations.
Antonin Scalia: --I mean, not in the aggregate of the two annexations plus the refusal to annex? I mean--
Jerrold J. Ganzfried: --The court weighed all of those as probative evidence of the purpose, and the court then found that the city has a discriminatory annexation policy that it implemented in these two cases. If we had a city, that for example, that was going and annexing individual houses, one at a time, and it turned out that they were only houses that white people lived in, you might... and it sought pre-clearance, you might look at each one and say, well, we can't see that annexing this one house with a few people in it makes much of a difference. But when you look at the pattern and you see what the policy is, that it's creating this checkerboard and that they've had 500 similar annexations like this, there comes a time when it's fair to say that we know what's going on here and we know what the purpose is. And, while the consequence is simply that this annexation is not permitted, it is certainly available to the Attorney General and to the Court to weigh the probative evidence indicating the city's purpose.
William H. Rehnquist: Thank you, Mr. Ganzfried. Mr. Corcoran, do you have anything more? You have nine minutes.
Thomas G. Corcoran, Jr.: Thank you, Mr. Chief Justice. First of all, Justice Scalia, what Mr. Ganzfried said about sales in the 1967 addition... I mean, annexation, that every single house was sold to white people is inaccurate. As I represented this morning, four have now been sold to black people. Secondly, the city is not ringed by unincorporated black communities as Mr. Ganzfried said. As we pointed out... as I pointed out in the beginning of my argument, supported by the postal map of Pleasant Grove, unincorporated black communities... the postal map of Pleasant Grove and geological survey, except for the southeast of the city, it is surrounded by empty land. Third, it doesn't really mean much to say that the 1979 decision to take in the western addition is contemporaneous with the decision not to take in Pleasant Grove Highlands. It's true, there's some overlap but the timing is as follows: in late 1978 the people who owned... the people who lived in Pleasant Grove, who owned the western addition, came to the city and started talking to the Mayor. The Mayor presented the question to the City Council on February 5th. It was immediately sent to the State Legislature of Alabama, which was willing to consider it only because it was completely unpopulated. The State Legislature of Alabama will not vote to take one community into another community if there are people in there unless they get a chance to vote on it. So that, the two if... they decided to take in the Highlands, they couldn't combine these two decisions. Then in March of 1979 they took away the fire and paramedic protection. In April the Highlands asked to be annexed. Then it was sent to a committee. Some months later, at the end of 1979, they said, we'll give you your fire and paramedic protection back. Then there was some shilly-shallying. Eventually they didn't do anything.
Byron R. White: I take it your argument... all of this is revolving around the validity of the conclusion below, that you hadn't carried your burden of showing no discriminatory purpose.
Thomas G. Corcoran, Jr.: Yes, Your Honor.
Byron R. White: That's all it's about, isn't it? Do you agree with your opposition that the District Court actually found a discriminatory purpose?
Thomas G. Corcoran, Jr.: It's not a holding. They suggested that. They said they would find--
Byron R. White: They would have found--
Thomas G. Corcoran, Jr.: --I think... I mean, I have to really look at the language, but my memory is that the District Court said, not only do we find they haven't carried out their burden of proof, but if the burden of proof was the other way would we rule the same way.
Byron R. White: --We would have had no difficulty in finding and reading it?
Thomas G. Corcoran, Jr.: Yes.
William H. Rehnquist: They spoke in the subjunctive?
Thomas G. Corcoran, Jr.: Yes. Well, it wasn't a holding, Your Honor. Judge McKinnon went the other way. With respect to the City of Richmond case and the City of Rome cases, of course we depend heavily on the City of Richmond case because it's our contention that if Pleasant Grove tried to bring in the Highlands, it would be a violation of the Voting Rights Act because the effect... it would be an effect of diluting their vote, diluting their vote for essential city services. So, we rely very heavily on the Richmond case, against the government. What makes Richmond and Rome different from this case, in both of those cases you had large cities with large black minorities. In the Richmond case, Richmond actually had a black majority before the annexation. So, there's a reason to attribute to the white people some sensitivity to bringing in a few more white people, but we don't have that here. There were no black people, no black voters in Pleasant Grove at the time these decisions were made. In the City of Rome case we have a lot of annexations of vacant land, but there, if my memory's correct, there were 60 annexations in four years. So, it's plausible the conflate to put together all the annexations and say, well, there's one common purpose. But here you're talking about four annexations in 50 years. As to the point about... Justice Scalia's point and Justice O'Connor's point, I think that the government's position in this case does ask us to make decisions based on speculation as to future impacts on voting, and you can argue that one way or the other on the literal language of the statute. But as a practical matter, what are you going to do with cases in which there's going to be no impact on voting for five or six years except to say, for the immediate future there's no effect.
Sandra Day O'Connor: Well, why did the city ask for pre-clearance?
Thomas G. Corcoran, Jr.: Because of the City of Richmond case. the City of Richmond case, Perkins v. Mathews, City of Richmond case, suggested that annexations were covered by the Voting Rights Act. I certainly think, Justice O'Connor, that if the Justice Department came out with regulations and said, in cases like this case you're not to petition until you have an immediate effect, that the Court would defer to those regulations and there would be no problem in upholding them. But of course, they don't have those regulations, and there was a holding from this Court, and the practice of the Attorney General, of course, was to look at these things immediately. Finally... and I end on a weak note here, but finally, as to the so-called mushroom problem, I'd like the Court to entertain our argument that the mushroom problem refers not to Pleasant Grove Highlands but to Dolomite. Dolomite is a very poor area. The city did not want to be in a position where it had to offer services to Dolomite. As I've said before, the city has a custom of offering free services to small communities around its borders, when it doesn't have any problem covering its own area. Dolomite is a very large community and the city did want to have to take in Dolomite. And at the time they made these decisions about the mushroom problem, the mushroom problem was not directed towards Pleasant Grove Highlands because these communities that they were thinking... that they didn't take in didn't abut on... either didn't abut on the Highlands, or two, the Highlands didn't exist at the time the decisions were made. Thank you very much.
William H. Rehnquist: Thank you, Mr. Corcoran. The case is submitted.