Warren E. Burger: We'll hear arguments next in Number 74-201, City of Richmond against the United States.
Lawrence G. Wallace: Mr. Chief Justice and may it please the Court. This is a suit for a declaratory judgment under Section 5 of the Voting Rights Act of 1965 brought by the City of Richmond seeking a declaratory judgment that the voting changes resulting from an annexation made by the city in 1970 would not have the purpose or effect of abridging the right to vote on the basis of race. The annexation added 23 square miles to the city containing 45,700 and some white persons and 1,500 and some blacks. It changed the composition of the cities electorate from -- of the cities population, pardon me, from 52% black to 42% black, and the composition of the sittings voting age population from 44.8% black to 37.3% black. The annexation --
Byron R. White: What voting age is not registered voters?
Lawrence G. Wallace: That's the voting age population according to census figures.
Byron R. White: From 42 to 37.
Lawrence G. Wallace: From 44.8 to 37.3, those are the only figures available the census figures of population by age, we don't have figures unregistered voters by race.
Byron R. White: Of course, as part of annexation, the populations of the annex territory were not registered voters and Richmond could not have been?
Lawrence G. Wallace: Not in Richmond that is correct Mr. Justice. The annexation was the culmination of long efforts which are recounted in detail in the briefs and which I won't take the time to rehearse here. The reply brief filed by the appellant, City of Richmond has a chronology of all the events in this complex litigation beginning on page 12, which is quite helpful. Basically, there were studies that began in the 1950 showing a need in the view of many for annexation because of changes in the composition of the city exodus of young affluent persons, the many references that the city was becoming a place of the poor and the old and the black. And throughout the course of proceedings, there was a need for land that could be developed and there was a problem about the tax-based of the city. After an unsuccessful effort to merge with Henrico County the annexation suits were brought in 1961 against both Henrico and Chesterfield Counties. The one against Henrico proceeded first and resulted in an ward by the annexation Court which the city found unacceptable, indications are because of the heavy payment that would have to be made and --
Byron R. White: There are two ways to annex as I understand it, one by majority of vote or both the annexor or annexee and the other by Court orders, special annexation Court that is.
Lawrence G. Wallace: That is correct Mr. Justice. The merger was the former method and while the city voters voted for it, the county voters did not. So the annexation suits were then brought and when the Henrico suit culminated in an unacceptable ward, the city proceeded with the Chesterfield suit, which was then compromised and we what we have before as a result of the compromise.
William H. Rehnquist: Mr. -- Mr. Wallace, are you and Mr. Rhyne dividing as between issues?
Lawrence G. Wallace: No sir, we haven't planned to do that. I am going to speak of all the issues. The District Court found the annexation invalid in both purpose and effect and if I may, I would like to address the question of the fact then the question of purpose and then our view with the proper disposition of the case.
William H. Rehnquist: Well, I've got a question that somewhere along the line, since the Attorney General now apparently has approved the Richmond plan, why isn't this moot so far as in Section 1973 (c) is concerned under the Voting Rights Act.
Lawrence G. Wallace: Well, we have changed our position in the litigation as a result of modifications of the plan but that doesn't mean that there has been a submission to us and we've interposed no objection. When we reached our agreement with the city, Mr. Rhyne quite properly raised that question with us. Well, can't he just now submit the plan to the Attorney General and we took the position that it would be improper for us to abort the suit that way that once the matter was pending in Court that we let the Court decide whether the Act has been complied with or not. We're a party to the litigation.
Warren E. Burger: You mean that these matters can never be disposed of by compromise once the proceeding has commenced in the --
Lawrence G. Wallace: Well, there are two intervenors who didn't agree with the compromise and we just took the position --
William H. Rehnquist: These intervenors normally mean maintain a live lawsuit when the plaintiff and the defendant have compromised it?
Potter Stewart: They can in an antitrust litigation anyway.
Lawrence G. Wallace: There -- yes, there have been instances upheld, the El Paso case --
Potter Stewart: The El Paso case.
Lawrence G. Wallace: -- being cited to us. In any event, we have not purported to any litigation. We are taking a position as a litigant in the litigation and not a position that the question has been submitted to us for clearance and we have given it clearance under the Act. Now, the question of effect, which is the first one to address and the first one addressed by the -- our brief turns on what delusion must necessarily occur in black voting strength as a result of the addition of this largely white group to the city's electorate. In this case, it was because of that dilutive effect that the Attorney General refused to grant pre-clearance upon the city submission two weeks after this Court's decision in Perkins against Matthews, which made it clear that these annexations had are covered by the Voting Rights Act. The annexation had already gone into effect before the pre-clearance was sought and we suggested at the time that if the dilutive effect could be ameliorated by changing from an at large system of electing councilmen to a single member ward system, then we would be glad to reconsider and --
Potter Stewart: May I ask Mr. Wallace how long the at large system had been in effect, since about 1950?
Lawrence G. Wallace: I think it's 1947 if I -- 48, 1948 the city attorney tells me.
Potter Stewart: That was considered -- I'm sure quite a reform in the structure of the municipal government when it came along is a generally political scientist think that to be an enlightened form of government, a small council elected at large and with the city manager system?
Lawrence G. Wallace: With the city manager system, yes.
Potter Stewart: And that came in at 48, how large a council, how many members?
Lawrence G. Wallace: It was a nine-member council.
Potter Stewart: Oh, from the beginning, so this involves no change in the number of members of the council?
Lawrence G. Wallace: That is correct.
Potter Stewart: -- but simply it changes from -- ultimately from at large election to an order or district election.
Lawrence G. Wallace: We were in a situation where there was an emerging black majority, which would be frustrated by the annexation --
Potter Stewart: Assuming black voting?
Lawrence G. Wallace: Yes, which is not --
Potter Stewart: What had been the history -- what had been the history between 1948 and 1969 from the point of view racial identity of the membership of the council, had it been all white always?
Lawrence G. Wallace: There has been one black member of it in more recent years. There have been also two white members supported by the crusade for voters, which is the predominantly black political organization in the city.
Potter Stewart: Has it been a non-partisan kind of ballot?
Lawrence G. Wallace: Well, it's not the traditional political parties and the ballot itself is non-partisan but there are --
Potter Stewart: No -- no part of designation on the part -- on the part --
Lawrence G. Wallace: There are organizations --
Potter Stewart: Organizations that nominate slates?
Lawrence G. Wallace: That support candidates, yes.
Potter Stewart: And has it been any kind of preferential type voting such as proportional representation?
Lawrence G. Wallace: No.
Potter Stewart: Does the voter marks nine-access?
Lawrence G. Wallace: They're not --
Potter Stewart: Up to nine-access?
Lawrence G. Wallace: Up to nine-access, they are not numbered seats and you don't have to have a majority to win.
Potter Stewart: The highest nine are elected.
Lawrence G. Wallace: That is correct.
Potter Stewart: And the voter --
Lawrence G. Wallace: Can vote for as many as he wants.
Potter Stewart: It has alleged on this -- on the ballot with no party designations and he puts up to nine access, no more than that?
Lawrence G. Wallace: That is correct.
Potter Stewart: They are not proportional representation, never has been?
Lawrence G. Wallace: It is not proportional representation and in the course of the litigation, since the city brought the lawsuit, still seeking approval for the at large system with the annexation. In the course of litigation, the city in the United States arrived at a compromised a proposed consent decree, which begins at page 150 of the appendix, in which a single member ward system would be set up and in our view this would eliminate any substantial diluted effect of the annexation and voting for the city council. It would result in four districts with substantial black majorities, four districts with substantial white majorities and other district in which the proportion of blacks and whites is basically the same as the proportion in the city as a whole.
Potter Stewart: And the districts of approximately equal population.
Lawrence G. Wallace: Approximately equal population, they were drawn on a nonracial basis or on the basis of contiguity, compactness, sharing of interest, not having a district crossing the James River criteria of that sort which are spelled out in some detail. Now, the District Court nonetheless has taken the position that the effect is one that's improper under the Act, under what it refers to as the rule or standard of the Petersburg case, which is also relied on very heavily by the crusade for voters, one of the intervenors here and they read the Petersburg decision, which was a decision by another three-judge court which summarily affirmed by this Court as holding that when there is an annexation of this sort, the ward plans have to be drawn in such a way as to minimize any adverse impact on black voting strengths, that the black voting strength has to be maximized to the extent possible in the drawing of the ward plans themselves. We think this is a serious misreading of the Petersburg case and I want to take a minute or two to explain why. In that case, and I have the opinion here of the Attorney General in rejecting the annexation in a very similar situation, where there was an at large council system, wrote a letter, spelling out in detail of the Government's position, and that letter is reproduced in the District Court's opinion, and we explain that one way to meet the problem of dilution on the council, and I am quoting from the letter "would be to adapt a fairly drawn system of single member wards." And that was our position that it would be a fair representation for everyone for the expanded city that was required, not an effort at over compensating black voters because of the addition of others to the community. Now, in response to this, the intervenors in Petersburg argued that even if this change were made with respect to the city council, the district Court should not approve the plan in Petersburg, the annexation for the reason that the election of the sixth constitutional officers provided for in the Virginia Constitution would not be affected and that a lute of effect on the black vote would occur in the election for the City Treasurer, the Sheriff, the Commissioner of Revenue, etcetera.
Potter Stewart: Citywide vote.
Lawrence G. Wallace: That is correct.
Potter Stewart: At large vote.
Lawrence G. Wallace: That -- that is correct, and that was inescapably an at large vote and the ward plan couldn't do anything about that. In response to that argument as we read the opinion in Petersburg, the District Court said, the Court concludes and I'm reading from the opinion in accordance with the Attorney General's findings that this annexation can be approved only on the condition that modifications calculated to neutralize to the extent possible any adverse effect upon the political participation of black voters are adopted that is that the plaintiff shift from an at large to a ward system of electing its city councilmen. In coming to this conclusion with respect to the argument of the intervenors as to the constitutional officers, we take note of several factors and the Court spelled out its reasons for not construing the Act to black annexations in effect. Now, we read that language to the extent possible as meaning with respect to the officers where it is possible to ameliorate the dilutive effect, not that the amelioration itself has to maximize black voting strength. And that is the basis on which we filed our motion to affirm in the Petersburg case and we don't believe that this Court's affirmance has endorsed a principle that the District Court in the present case has said that the Petersburg case stands for. That there has to be an effect to maximization of black voting strength and converting to ward system in the way the wards are drawn or what might be --
Byron R. White: Summary affirmance in this Court.
Lawrence G. Wallace: There was a summary affirmance in this Court --
Byron R. White: Without an argument.
Lawrence G. Wallace: Without argument. As I recall Mr. Justice Douglas wanted to hear our argument in the case and noted that he wanted to hear our argument. It was at 410 U.S. 962; it's cited in the briefs. So basically, we feel that the standard of Petersburg and the standard that we have been applying right along in improving annexations and you note a footnote in our brief indicates that of -- I think it is 867 annexations that have been submitted to us under the Act, we've disapproved only six. We have been operating on the premise that a system of fair representation of everyone in the annexed area is all that is required and if we are wrong in that we would like to know, but we don't think we're wrong in that, we don't think the Act was intended to otherwise.
Byron R. White: Suppose there is a city council as elected at large and the black vote in the community is potentially more than 50% or is more than 50%. It just hasn't, the vote just doesn't get out, but the vote is there and then the city is districted and council members are to be elected a single-member districts. It is not argued after that single-member districts do not maximize the potential black vote but it is argued that the black voting power has been diluted because it may not any longer elect all of the council. Now, would that be a -- would that be dilution in the Government's scale of values and --
Lawrence G. Wallace: Not as we have been administering the Act, we don't think the Act requires one method of representation or the other.
Byron R. White: So that although the -- although blacks before could have elected all the council members. The fact that they could only elect afterwards and assuming black voting. Afterwards only five or six of the council members that wouldn't be a dilution in your book?
Lawrence G. Wallace: No, that would not --
Byron R. White: That is sort of a problem here, isn't it?
Lawrence G. Wallace: There might be a racially discriminatory purpose in making the change but the effect if the districts are fairly drawn would not be in effect that violates the Act in our view.
Byron R. White: And that is rather involved here because the argument is that soon blacks could have controlled the city council and elect and had a majority in the instance?
Lawrence G. Wallace: But that in our view so far as effect is concerned is made up for by the fact that the black voting strength is being immediately enhanced now.
Potter Stewart: We have another case suggested by my Brother White's question, let's assume a city with a 55% majority of Negroes of voting age who in fact didn't exercise their potential and therefore the majority of the council in fact historically has been non-Negro and then you annex property and that reduces that majority from 55 to 51 and you continue the at large, now would that be a violation of anything? You don't make any changes, it has been at large before and it is at large now and there is still a majority of Negroes of voting age.
Lawrence G. Wallace: Well, we have to look at the circumstances, it might not --
Potter Stewart: But there has been a slight reduction in the majority?
Lawrence G. Wallace: There might not any reason to interpose an objection there. It is hard to answer your question --
Potter Stewart: In the abstract?
Lawrence G. Wallace: -- of this kind in the abstract (Voice Overlap) without hearing from interested persons who may bring facts to our attention.
Potter Stewart: Well, we haven't read the facts suppose.
Lawrence G. Wallace: That is correct. I think my time is running out, I just want to summarize very briefly our position purpose and disposition and that is that the record does show legitimate purposes including a very important effect that deannexation would have on the school system in Richmond, which is not addressed at all in the intervenors briefs. We think that the appropriate disposition would be to develop the legitimacy of this purposes and whether they have purged the discriminatory purpose that it was shown on remand. In the meantime, it has been five years since there has been an election and we would like to suggest to the Court something not suggested in our brief that it would be appropriate if a Court agrees with us that a remand is the proper disposition on the purpose issue that it would be appropriate to provide that an election can be held in the meantime pursuant to the consent agreement proposed by the United States and the city, an election from these wards with the terms to expire July 1, 1976, so that we would have up-to-date elected city council in Richmond. I don't think anyone would be worse off than they are with the old council that was elected in 1970 in which replacements are being made without elections by the existing members of the council.
Potter Stewart: What is the council and what is the term under law by him, two-year term?
Lawrence G. Wallace: Two-year term.
Potter Stewart: And the election is odd numbered years or even numbers?
Lawrence G. Wallace: The even numbered years so that --
Potter Stewart: The gubernatorial are odd numbered years in Virginia and the -- and as far as the --
Lawrence G. Wallace: And the city would prefer not to wait until 1976 for the next election and we don't see why they -- that need occur here.
Potter Stewart: Is the school or is the school district coterminous with municipal boundaries?
Lawrence G. Wallace: It is in Virginia.
Potter Stewart: Precisely.
Lawrence G. Wallace: It's precisely coterminous so that a deannexation would have something of the effect that was involved in the United States against Scotland, Neck City Board of Education. I don't really want to exaggerate the analogy but there is a similar effect to that case and to Gomillion against Lightfoot should there be a deannexation.
Harry A. Blackmun: Mr. Wallace, in the last five years, has any councilman died or anything and if so how is his replacement selected?
Lawrence G. Wallace: The replacements are being made. There have been resignations. I don't know if there has been any death and replacements are being made by the remaining members of the council.
Harry A. Blackmun: Even so perpetuating that as of the moment?
Lawrence G. Wallace: That's -- elections have been enjoined under first in order of this Court in joining the 1970 --
Byron R. White: The Government -- the Government under this has been administering the statute to say I understand -- I would gather that even if in your judgment there is no dilutive effect, no bad effect at all, a bad purpose would still upset a plan?
Lawrence G. Wallace: Well the Act says that. I don't if we've ever -- I had a case where we've had to refuse to clear.
Byron R. White: Because it is perfectly -- it's perfectly clear that there's bad effect, you don't have to have a bad purpose too.
Lawrence G. Wallace: That is correct.
Byron R. White: But the other way around, I suppose the cases are few in far between where there is no bad effect but -- yet there's a bad purpose?
Lawrence G. Wallace: We think that this case is a peculiar example of that.
Byron R. White: And yet you are willing to remand on purpose even though you think there is no effect?
Lawrence G. Wallace: Well, we don' think the party has developed their evidence and the question of whether there is a legitimate purpose. Once there was a finding of a bad purpose, the effect of which has been ameliorated, it seems to us that there has to be an inquiry into whether a legitimate purpose does justify this annexation. We think the answer is fairly clear on the record as it stands and we are only suggesting the remand is a matter of fairness because the parties didn't focus on this issue this way.
Warren E. Burger: Has there ever been a Court decision under this Act that said that the effect was good but the purpose was bad?
Lawrence G. Wallace: I am not aware of any.
William H. Rehnquist: The statute by its terms does require the state of political subdivision to get it -- a declaratory judgment to the effect that the procedure does not have the purpose and will not have the effect. Really, it is phrased so that they have to carry the burden I would think on both?
Lawrence G. Wallace: On both issues and --
Byron R. White: I guess you would say it depends whatever the effects are?
Lawrence G. Wallace: Well, it seems to us that the plain language says that we're not suppose to approve and the District Court is not supposed to approve a voting change that was made for a racially discriminatory purpose even though it doesn't have a racial one.
Potter Stewart: Even though the facts say they (Voice Overlap).
Lawrence G. Wallace: That's regardless of the effect.
Potter Stewart: That's right.
Lawrence G. Wallace: And so that issue remains here. We think a sufficient showing was made considering that especially that the parties have stipulated that the record in the Holt litigation is also part of the record here. But we have suggested the remand only to give the parties an opportunity to focus more specifically on the issue in this case.
Warren E. Burger: Very well, Mr. Wallace. Mr. Rhyne.
Charles S. Rhyne: Mr. Chief Justice and may it please the Court. I represent the City of Richmond. We ask that this Court approve as its judgment the consent judgment that was worked by the Attorney General in the City of Richmond. It is set forth in the record, it contains not only the ward plan but the machinery for almost immediate election as the City of Richmond feels as sooner we get back to ballot box control, the better everyone is in their city. Now, first of all let me say with respect to a question that was asked about since 1948 in black participation in the city council. Mr. Mattox has shown me a piece of paper, which is really set forth in the record pages 112 to 132 which shows this: "Since 1948 under the election at large system, the citizens of Richmond have elected five -- have elected four, yes it is, to the council and one has been appointed. At one time, there were as many as three black citizens on the city council."
Byron R. White: On the nine-member council.
Charles S. Rhyne: On the nine-member. So, I believe the record with respect to Richmond while we talk a lot about black voting and polarization and everything, these blacks could not be elected without white votes because as Mr. Wallace has pointed out, they have never constituted more than 44% of the voting population and the record also shows of course that the whites are generally much larger in their percentage of voting than the black citizens. So, the City of Richmond, number one, because this matter has been here four times already and this is the fourth time would like to get back to handling its own affairs and get out of Court. Now, with reference to this particular nine-ward plan. What happened as the record shows is that after Petersburg at large election must be replaced by a ward plan in order to eliminate the discriminatory effect there, the City of Richmond and conceded on the record below that principle govern Richmond and began working very intensively to try to come up with a plan that would satisfy that standard that would not abridge or deny the right to vote on account of race or color. And so back and forth, back and forth plans went with the Department of Justice trying to achieve a plan that would meet with their approval as having eliminated all possible discriminatory effect of the annexation and finally that was achieved. And I must tell you Mr. Justice Rehnquist, I thought that when that was achieved the case was over because it seems to me that under the statute it says you can either go to the Attorney General and if he interposes no objection, if he approves in other words or you can go to a three-judge court. Now, the city was in the three-judge court and the Department of Justice took the position but since they were there that the matter should be presented to the three judges. The special voting rights court, but that it should be presented as a consent judgment, well, because it would also have this election machinery and it too that was one other part of their presentation. Well, I presented that to the city and they agreed to it. Their great desire is to get on with elections in Richmond and get this all behind them. Now, the plan as presented, the nine-ward plan really allows the black citizen of Richmond fair representation in the overall of the political processes of the city prior to the annexation. They couldn't elect anyone under this plan assuming black voting polarization which I don't like to assume. This is kind of repugnant to a lot of ideals and a lot of people but they -- assuming that the blacks are assured of four seats on the city council. Now, as Mr. Holt says in his brief on page 16 four seats on the council is really fiscal control of the city because you can't adopt a budget without six votes. So, I think that this is an enormously meaningful fair solution to this whole problem. The case when it came on below as we say in our reply brief, we quote the order, the three judges said that the issue was the annexation in Richmond as amended by this ward plan. And then they -- after there was some discussion about offering evidence on the original annexation, the master went back to the three judges and they said well you can let in evidence on the original annexation. But to me completely throughout these whole proceedings, I thought when the Attorney General who has made a statutory expert under this Act and nearly all of this plans are passed on him. They don't go to Court that when he put his staff of approval on this the case really should have been over. Now, time and time again this Court has said that you give special deference to the views of someone who is charged with the administration of a statute and we put all of those in our brief. And so here, I earnestly believe that the Attorney General's views below were entitled to more weight and more deference than they were given.
Byron R. White: You can almost under these very peculiar statutes, you could almost make a stronger argument than that I should think that the Attorney General's agreement to the stipulation almost remove jurisdiction from the Court.
Charles S. Rhyne: Your Honor, I made that argument that is part of justices I didn't quite get them to agree with me.I think it is a good argument because you can see that while there are 37% of the voting populations under the new city, they are given four seats and a chance of another one in the swing ward that is gradually turning but from white to black.
Potter Stewart: But regardless of the merits, once the Attorney General approve it even though he was late in doing so, if you think in not preempt terms that defeated any course jurisdiction because how did you approved it before the lawsuit, there could have would have been no lawsuit.
Charles S. Rhyne: That is right.
Byron R. White: And no need for a lawsuit.
Charles S. Rhyne: That is right, that is absolutely right. Now, one of the things about the decision below is that they stated rather peculiar and unusual burdens of proof after the case was all over with. They said that because the city was smeared with a discriminatory tint, it was up to the city and there was extra burden cast up on the city to purge itself by not only proving lack of delusion but by proving some legitimate purpose for the annexation. Well, this annexation started actually in the 1950's and all through the 1960's there was either litigation or something going on in connection with it and the record before the annexation of Court and they have a special annexation of Court that hears this. There were 82 witnesses, 9,000 pages of testimony, 182 exhibits overwhelming as to the purpose under Virginia law of the annexation. They just overwhelm the Court. The record is completely in one side of there as to the necessity and expediency of this annexation and so the annexation question as such; we don't believe the economics of all of that was before the three judges. That would take two or three months to try and as Mr. Holt says in his brief, I don't want to go all through that. We stipulated in the entire record in annexation case and so far as economics is concerned, there is no question but what the city proved all of those things but we earnestly suggest to this Court that Voting Rights Act is concerned with voting. I have read that from beginning to end a good many times it talks about voters, eligible voters and registers of voters and all that kind of thing. But it never talks about any economics as wiping out the registered voters rights, to me that act commands a quality, quality.
William H. Rehnquist: Didn't the court below look in to economics with the thought of looking at the purpose of the annexation that if it wasn't justified by economics means that would at least supported inference that it was justified by prohibited motives?
Charles S. Rhyne: I suppose Mr. Justice Rehnquist that that is one way that it could be read but my point there is if they were consider economics why didn't they look at all the economics that are in the record in the annexation Court which was stipulated in, they didn't do that. So, I think that in so far as economics wiping a constitutional right, it just can't be and we're not here urging that.
Lewis F. Powell, Jr.: If I might get back to the agreement that Richmond reached within the Attorney General, was that before the Court below.
Charles S. Rhyne: Yes, it was, yes it was because immediately after the Attorney General agreed to it and then when --
Lewis F. Powell, Jr.: Is there any discussion other than the opinion.
Charles S. Rhyne: Pardon?
Lewis F. Powell, Jr.: Is there any discussion offered in the opinion.
Charles S. Rhyne: Not at all.
Lewis F. Powell, Jr.: (Voice Overlap) a reference to that.
Charles S. Rhyne: Not all. They seem to give no weight --
Lewis F. Powell, Jr.: Had it been before the master?
Charles S. Rhyne: I think the timing of it was that the consent degree came before the master was appointed and it was before him, yes.
Byron R. White: Isn't the ward plan that the three-judge court talks about, isn't that the plan?
Charles S. Rhyne: Attached to the consent judgment, yes, yes it is.
Byron R. White: Well, did the master have that before?
Charles S. Rhyne: Yes, he did but he paid no attention to it. He didn't mention it so and neither did the Court.
Warren E. Burger: Part of the consent decree but not all of it, isn't that about it?
Charles S. Rhyne: Yes, yes, and so --
Byron R. White: On page 18, it says Richmond undertook the development ward plan after the decision in the City of Pittsburgh and it now relies on Petersburg to argue that the annexation was made lawful by the adoption of a single-member district plan, is that the plan?
Charles S. Rhyne: Yes, it is. Yes, it is but there is no reference to or deference to the fact that this was cleared with the Department of Justice as completely removing the discriminatory effect of the annexation. Now, I think I will reserve the remainder of my time for reply.
Warren E. Burger: Very wellm Mr. Rhyne. Mr. Derfner?
Armand Derfner: Mr. Chief Justice and may it please the Court. I represent the Crusade for Voters of Richmond, one of the intervenors here. We believe this is the type of case that Section 5 of the Voting Rights Act was designed to deal with. On the surface, we have a normal annexation purported to be for legitimate ends to help a city through some of the problems that a number of cities go through in this day and age. On the surface then it is like nearly a thousand other annexations that have gone through under the Voting Rights Act with no problems. In fact though, this annexation was and remains a deliberate effort on the part of the city to negate the gains made by black voters under the Voting Rights Act. When Congress enacted Section 5, added Section 5 to the Voting Rights Act in 1965, it did so because as the testimony in the legislative history shows Congress well knew that the history of voting discrimination had been the inventive development of new stratagems to cope with -- to make certain that white political control was maintained and that discrimination against black voters was maintained after the existing stratagems were struck down, so that Section 5 was in effect a counterpart of Section 4 which mandated the elimination of test and devices. And in fact in Richmond, what we have is a situation where the growth of black voting strength, the overcoming by black voters of the history of discrimination against them which occurred as the 60's grew on and especially with the passage of the Voting Rights Act was suddenly aborted in 1970, 1969 actually took effect in 1970.
Thurgood Marshall: On your facts, there was at least one Negro city council along before 1960?
Armand Derfner: Not to my understanding, I maybe mistaken of my impression --
Thurgood Marshall: His name is Oliver W. Hill.
Armand Derfner: Yes, that is correct. Mr. Hill was elected in 1948 or 1950 in the very early days after his one term in office there was no black councilman until after the passage of the Voting Rights Act, I believe 1966 or '68 was the next election of black councilmen. I'm sorry about forgetting about Mr. Hill. The annexation in this case, it seems to be agreed by everybody with a possible exception of the city did have this bad purpose. Much to the question here turns on the effect. I would like to begin by noting that the effect of this, the effect of this annexation was if put in population terms to add the equivalent of one and half white wards or one and half wards of white voters to the city.
William H. Rehnquist: Well, is it your position, Mr. Derfner that if the purpose is bad, you don't have to get to the effect?
Armand Derfner: Yes, I do Your Honor. My position -- the position of the crusade is that in order, is that the Act requires that the city, if it is to gain a declaratory judgment prove that it does not have the purpose and will not have the effect that both of those are independent tests and then yet in the absence.
Byron R. White: You don't suggest that because there was at one time a bad purpose that it is forever bad and incurable.
Armand Derfner: No, not at all --
Byron R. White: Well, and the argument here is that a plan or change and vision it had a bad purpose and a bad effect that the argument is no longer has either one of them because the effect has been cured and presumably the purpose.
Armand Derfner: Well, it is that presumably that counts. They are presumably that counts, right. But I think that the city in order to disprove bad purpose or to show that the bad purpose has been dispelled must do something more than show some minimization or some degree of amelioration of a bad effect. I think that the Government seems to agree with the crusade and with the Court that there have to be some independent proof that the bad purpose has been dispelled. One of the items of that proof would be a showing that the annexation has or had a what the Court an objectively verifiable legitimate purpose and I think to my mind, this is the same standard was referred to by Mr. Justice White in his opinion in the Palmer case when he used the phrase "colorable nondiscriminatory reason." I think the Government has highlighted the problem of the purpose. I simply disagree with the inferences it draws from the state of the evidence below. The Government in effect says, we think the evidence below wasn't clear, we think there ought to be a new hearing in effect. What that means to me is that the city didn't meet its burden, not only did it meet its burden but cannot now show what it would have to show to gain a reversal in that ground that is at the findings of the special master and the District Court on purpose were clearly erroneous that the city can't meet that standard that it didn't meet its burden of proof in the District Court. Therefore, to me what the Government is saying is that although the city has failed to meet its burden of proving sound purpose below, it should be entitled because we, the Government or the United States think that that evidence might be available to it. Well, that suggestion of a new trial, I suppose is a matter of equity and a matter of procedure to be determined by the district court below in the first instance to be determined perhaps by this Court on review but I don't think there should be any confusion about what it amounts to and it seems to me that it amounts clearly to a recognition of the fact that the record below shows that there isn't any evidence or isn't enough evidence for the city to meet its burden of showing an objectively verifiable legitimate purpose and therefore or that being one of the elements of showing that the bad purpose has been dispelled. But I think as a starting point, what the Government says amounts to a recognition the city failed to meet its burden. If it failed to meet its burden under the Act there is no choice. The District Court did not have the right or the power to grant the declaratory judgment. Now, there has been a lot of discussion about the effect and about what is the consequence of the city's adoption of the nineward plan. I would like to begin by a brief reference to the question that has come up for the first time today that is what is the legal consequence of the Attorney General's acquiescence or his agreement that a particular form of submission or consent judgment is appropriate.
Byron R. White: Was this issue ever presented to this three-judge court as to whether or not the Attorney General's agreement ousted the Court's power?
Armand Derfner: I don't think it was presented in any full sense. My recollection is --
Byron R. White: Well, that is one of the questions presented here.
Armand Derfner: Well my recollection -- I understand that, Your Honor, Mr. Justice White. My recollection is that the city prepared the plan and prepared a cover consent judgment which had circulated at the Attorney General or his representative signed -- that the representative -- two intervenors did not sign. That the city then submitted the matter -- submitted that judgment as a proposed consent judgment to the District Court and that the two intervenors filed brief memoranda saying that they didn't agree and thought it should be accepted since it did not have the consent of all parties in the case. As far as I know that was the end of the matter. There was no legal argument nor any memoranda, nor any further effort by the city to argue that point. I would say this on that subject that I think the structure of Section 5 was initially, exclusively or initially created an exclusive remedy for the city in the District Court by declaratory judgment that during the hearings in the Senate, as I recall, Attorney General Katzenbach was asked, “Wouldn't this be a great burden for a number changes that would be quite minor?" and he acknowledged that it probably would be and it was after that -- while the hearings were going on that the Government came back or the legislative draftsman of the justice department came back with the proviso which is now in Section 5. It was initially understood I believe that the proviso would be a limited remedy and that the declaratory judgment would be a predominant one as it has happened mechanically, it is going the other way around.
William H. Rehnquist: Certainly, the statutory language gives no intimation of that sort of a legislative purpose that consent of the Attorney General is valid only in the case of some things that are covered by the declaratory judgment portion of the statute but not all of them.
Armand Derfner: But this Court in Georgia, in the Georgia case made it clear that the Attorney General operates as a surrogate for the Court, as a substitute if you will and I think it would be improper to say that the surrogate can swallow up the Court once the jurisdiction of the Court is attached. I would also remind the Court of its brief reference in the Allen case, the very first case dealing with a submission under the Voting Rights Act or with a question of whether something had to be submitted. There, the Attorney General of Mississippi argued, well, we sent this change to the Attorney General, we never heard anything. Therefore, we take it that he has left that 60 days past and this Court talked about the requirement, the requisites of formality and formal submission.
William H. Rehnquist: Yes, but if the Attorney General is given a formal submission and approves it under the language of the statute then there is no action for a declaratory judgment in the District of Columbia, is that -- you agree with that don't you?
Armand Derfner: In the ordinary case that is true.
William H. Rehnquist: What case other than the ordinary case -- where would you find jurisdiction for that sort of an action?
Armand Derfner: I don't think that the attorney -- well, I think that the jurisdiction ones it attaches of the District Court.
William H. Rehnquist: Well, I'm talking about a case where a jurisdiction is never the Attorney General has approved and then an action is sought to be brought by someone else presumably since neither the city has to bring it and the Attorney General chooses not to bring it. Under this three-judge District of Columbia declaratory judgment statute, who could bring that sort of an action?
Armand Derfner: The only action available at that point would be an action by a voter presumably seeking to review under either the Administrative Procedure Act or under the intertices of this Act seeking to review the Attorney General's failure to object but clearly, there is no question, but that the declaratory judgment court created under Section 5 would not be invoked if the Attorney General, if the Attorney General's fail -- if the Attorney General had had a submission and failed to object without jurisdiction having attached but it seems that once the Courts jurisdiction has attached, we have an entirely different matter.
William H. Rehnquist: The voter even if the Attorney General had approved, would still under the last sense have an action I take it in the Eastern District of Virginia.
Armand Derfner: Under the Fifteenth Amendment.
William H. Rehnquist: Under the Fifteenth Amendment.
Armand Derfner: Yes, unquestionably
Potter Stewart: Quite apart from the statute just as anybody withstanding or is would or could have.
Armand Derfner: Yes, no question about that.
Potter Stewart: Quite apart from the statute.
Armand Derfner: I think the last sentence was essentially a savings clause to make it clear that it preserves any case could not be ousted.
Potter Stewart: Right.
Armand Derfner: But it seems to me that it is quite wrong to read the statute is saying that the Attorney General can to use a colloquialism pull the plug on a case filed before an Article 3 Court, a special Court created by Congress.
Byron R. White: The only two parties in the case where the city brings the case, doesn't it?
Armand Derfner: Yes.
Byron R. White: And who does it sue?
Armand Derfner: It sues the -- it sues United States. I am not sure if it is either sues the United States or the Attorney General, in fact, he's been to sue both.
Byron R. White: Alright, it sues the -- one now and then, let's assume two weeks after the case is filed, there the plaintiff moved to dismiss it. You think the Court is disempowered and grant the motion.
Armand Derfner: No, I think that the Court would --
Byron R. White: Well, what if the city has made a settlement with the Attorney General and he just moves to dismiss?
Armand Derfner: I don't think the Court is disempowered to.
Byron R. White: Well, I would think he would say because the Attorney General in the city will just pull the plug on the case or both.
Armand Derfner: No, I am saying I think the Court still has at that point has to review and has discretion, I think if not disempowered to dismiss but I don't think the dismissal automatically has to follow and I think this Court has dealt with the rights of --
Byron R. White: The fact is that the city never moved to dismiss in this case.
Armand Derfner: Should never move to dismiss and I would just remind this Court again of its opinion in the -- its paired opinion I suppose, in pair of decisions in the New York case in which the rights of the intervenors have been a matter of great concern not only to the Court but to the Justice Department that has been a continuing controversy. But I still come back to the point that once the Court's jurisdiction is attached and especially once intervenors come in and have been led in with I might say the Justice Department's acquiescence in this case that the Court cannot simply be ousted by the medium that might well have been available or would have been available had the Court's jurisdiction never attached.
Thurgood Marshall: Mr. Derfner, on your suit in the Eastern District of Virginia by our citizen under the Fifteenth Amendment, does that mean any citizen?
Armand Derfner: Any citizen withstanding?
Thurgood Marshall: The Fifteenth Amendment gives no right to whites --
Armand Derfner: Pardon me?
Thurgood Marshall: Well, the Fifteenth Amendment says, it said the United States voter shall not be denied or abridged on the account of race, color, or previous condition of servitude. So, it would be --
Armand Derfner: It would be a black citizen in the ordinary case. In the exceptional case it might conceivably be a situation where white citizens were discriminated against.
Thurgood Marshall: You want to amend the Fifteenth Amendment?
Armand Derfner: Pardon me.
Thurgood Marshall: You want to amend the Fifteenth Amendment?
Armand Derfner: No, no, I certainly don't mean to do so and in fact the suit that has been brought, that was brought in the eastern district was by a black citizen seeking to assert his Fifteenth amendment rights.
Potter Stewart: Not in a certain context under the Fifteenth Amendment a white citizen could have standing.
Armand Derfner: Yes.
Potter Stewart: His claims were that in a majority where there were black majority in the particular governmental unit, there was discrimination against white voters.
Armand Derfner: That's the limit of the point I was seeking to make in response to your question, Mr. Justice.
Potter Stewart: White race is a race?
Armand Derfner: Yes and they are entitled to protection, so I was just talking about the ordinary situation and the Virginia situation being one in which as a practical matter white citizens have never been discriminated against on account of race.
Warren E. Burger: In other words you agree that because the objectives of the amendment were at the moment of its adoption, one race it doesn't confine or define its scope?
Armand Derfner: Unquestionably, unquestionably. That of course become a somewhat different question when we're dealing with the appropriate remedy to be devised for a situation where there has been a history of discrimination against one race and that comes in to this case too.
Warren E. Burger: That's a factual issue though.
Armand Derfner: Yes it is, yes it is.
Warren E. Burger: Constitutional issue.
Armand Derfner: But as to the constitutional issue, certainly, the Fifteenth Amendment goes as we might say both ways or always.
Warren E. Burger: Always.
Armand Derfner: Let me direct myself in the time remaining to the question of effect. I think unquestionably the addition of these 45,000 white people in the context of the population figures that were existing in Richmond had and has a diluting effect. The question is how that diluting effect is to be overcome and I think what the Petersburg case said and the way the District Court here read the Petersburg case is that at least where you have no discriminatory purpose, you can -- you can meet your burden as to effect by making a good faith showing that you have minimized the dilutive effect to the extent possible, or to the extent reasonable. It is something I suppose of reasonable man standard. I think the District Court here was suggesting and I think there are two things that are different about this case. First, I think as the District Court suggested in footnote 46 of its opinion here, there may well be a different standard as to how far one must go in ameliorating effect where there has been and is a discriminatory purpose. In other words, it may be that the phrase eliminate dilution is appropriate in a discriminatory purpose case whereas the phrase minimize dilution would be sufficient in a none in a case that lack of discriminatory purpose. And on this, I think we derive some support from the majority opinion in the case of Wright versus City of Emporia in which there was a discussion of the ways in which a bad purpose or discriminatory purpose can infect the effect either by heightening the feelings of stigma or by casting some glow or gloss on the evaluation of the claimed legitimate purposes. That is one thing but --
Byron R. White: What's your view of the question I asked your colleague, if there is a city council elected at large and the blacks have potential majority or an actual majority and then the city is single districted so that the blacks can no longer elect all of a council.
Armand Derfner: I don't think that's dilution because I think in that large election the sub position that you might get all nine or virtually all nine of the councilmen is in a sense of bonus that flows from the mechanism and to come back from that to.
Byron R. White: Well, single districting as long as the single districts weren't drawn to dilute themselves to black power would be all right.
Armand Derfner: Yes, yes, at least in the ordinary situation where you are not coming on the heels of an annexation of this sort and when you are coming on the heels of an annexation of this sort, some different standards may apply. One that I mentioned is the idea that elimination rather than minimization maybe required. A second point I would make though is that in this case I don't believe the city has met its burden of proving that its nine-member plan did meet the effect test. I would mention since my time has expired just briefly that the city refused and I think the record will show this. The city refused to consider any other plans once it had its plan drawn and the department's agreement. They refused to look at any other plans although I think it was not only arguably but definitely under an obligation given the background of circumstances to find the best plan available. And I don't think that the crusades plans were not offered or are not offered as plans that are in fact necessarily better or constitutional or mandatory or anything like that, they simply offered to show that even under the city's pattern better alternatives were available. It might be that the proper plan would not be won that had four black, four white in a ninth district somewhere in the middle. Well, it might be that the better plan, the best plan would be one that had essentially no uni-racial districts or one or two if that is the best you can draw given neighborhoods with other districts being in a sense up for grabs. We simply sought to show that even under the cities pattern that a better plan can be drawn. We don't believe that black voting is an inevitable necessity, the pattern has shown that we are in the most recent elections there has been some departure from that because the crusade did support two whites as well as several black candidates. And I might point out that in judging the question of enhancement had this annexation not taken place. The results of the 1970 elections the most recent elections would show if we took out the votes cast in the annex area that crusade black candidates would have had four candidate -- would have had four seats, two whites who were elected, one black was elected and a fourth or a second black or fourth person who was elected in the old city but who was not elected because he didn't finish high enough in the annex area. I think by a variety of tests city didn't need its effect test, it didn't meet its purpose test and I would like to advert just very for 30 seconds to the Government's suggestion of election. We too believe that our election would be highly appropriate that it has been five years before since an election has taken place. But what the Government would have us do is to have the plan which the city was not able to show satisfy the Voting Rights Act have that put in to effect have what amounts to a back door or side door disposition of what it could not obtain through the front door. And since the upcoming decisions will be -- will involve many that affect the future course of the City of Richmond and this annexation, I think that it is not proper to have an election of that sort if we are to have an election and there are many good reasons for having one. I think that at least for temporary purposes it will be appropriate to have an election in the old city conducted under the old system. And I realize that raises a significant Fourteenth Amendment problems but I think we are in this situation. We're in a very peculiar situation. I think peculiar remedies may be called for. This case does not involve -- the decision of the District Court does not mean that annexations of legitimate sort by cities legitimately and honestly seeking to meet their problems are in anyway hampered. What this case involves is simply the appropriate action or the appropriate impact of the Voting Rights Act of the Section 5 of the Voting Rights Act on those changes, which like this one, it was designed to deal with.
William H. Rehnquist: But it isn't one of the legitimate problems of many large cities of problem of white flight and don't you -- is it totally ruled out under this Act?
Armand Derfner: No, no.
William H. Rehnquist: To take that into consideration and trying to get more white people into a metropolitan area where that thing is rapidly tipping.
Armand Derfner: I don't think that -- no, I don't that's ruled out but I think in this case what we had was much, much more. Any annexation that Richmond might undertake or might seek to undertake after this case is over would impart be based on that goal, I suppose and that in itself would not be illegitimate. It's this particular annexation which Richmond has sought to clothe in the legitimate garb or annexations in general that was infected by purposes far worse than the one that Mr. Justice Rehnquist discussed means. I am sorry, I have over gone my time, thank you very much.
Warren E. Burger: Very well. Mr. Venable, would you prefer to begin at 1 o'clock and I'll divide your argument?
Cabell Venable: It makes no difference to me, Your Honor.
Warren E. Burger: Alright, you may proceed.
Cabell Venable: Mr. Chief Justice, may it please the Court. My name is Cabell Venable, I represent Curtis Holt Sr. and the class of black voters in the city of Richmond. Mr. Holt's involvement with this annexation goes back to before the annexation actually took place. His first attempt at legal involvement in this case was a telegram sent to Mr. Justice Douglas in the fall of 1969 asking Mr. Justice Douglas to please intercede and prevent the annexation from taking place on the first of January of 1970. Following that, he spent a year on successfully seeking the aid of the justice department on his claim that this was a racially motivated annexation that did no good economically or in future growth for the City of Richmond and had accomplished its sole purpose which was to prevent black participation in the governmental affairs of the City of Richmond. Failing in disbarring and securing that aid from the Justice Department, he filed a suit.
Warren E. Burger: We'll resume there at 1 o'clock
Cabell Venable: Thank you sir.
Warren E. Burger: Mr. Venable, you may resume.
Cabell Venable: Mr. Chief Justice, may it please the Court. Several points were raised in arguments by the appellants and intervenors and the federal parties, the first one dealing with mootness, the mootness question I think raised by Mr. Justice Rehnquist. I think it is important to point out that neither the city, nor the Government after submitting this attempted consent judgment sought a dismissal, nor did they seek any other affirmative action other than to present it to the Court.
Warren E. Burger: Sometimes of course we flash those issues out on our own as you're probably aware.
Cabell Venable: Yes sir. I believe the Government --
Byron R. White: Arguably it's jurisdictional.
Cabell Venable: Jurisdictional to the Court that the Attorney General has presented a consent order.
Byron R. White: Well, that the Attorney General in the city now have agreed.
Cabell Venable: I think they agreed as to affect to Mr. Justice White, I don't think they agreed the purpose and that's why the Attorney General went on with the trial and even suggest today that we go back and consider even more the question of purpose. I think it was only presented on the issue of effect and that the Attorney General then went on and took evidence and reference to purpose and even today doesn't believe that that focus was specific enough or detailed enough and would ask this Court to remand for additional questions on purpose. So it's not an approval nor is it a failure to object.
Byron R. White: Are you saying the effect that the Attorney General was drew from the consent order?
Cabell Venable: Yes sir, I do. In my brief, I made a remark that four seats on city council guarantee physical control, I wish to point to the Court that I'm in error that. Five seats can pass the general approved budget, it requires six votes for any special appropriations. So, five seats on the council in the City of Richmond is physical control of the city as well as administrative control. I disagree with the Solicitor General on the statement of this case. This case goes back to 1950s and it goes back specifically to 1960, at which time, the city of Richmond attempted to enter into a merger within the Henrico County. The record shows and the evidence is that the city limited all of its comments to the officials of Henrico County to the question that the city was having a fast increasing black population and they needed more white people. It is instructive to note that when the merger vote was held, 100% of all black voter pressings in the City of Richmond voted no to merger. 68% of all mixed precincts voted no to merger and the crusade for voters wrote a letter specifying to the governor and to the press that merger was a dilution and an attempted to dilution of their vote. Following that time, the city filed two annexations, one against Henrico and one against Chesterfield and let the Chesterfield annexation sit on the back burner. They received a ward from the Henrico annexation Court of 16 square miles for $55 million and approximately 45,000 people, white people. They turned down that ward, not as they suggest because it costs too much money but because they found that the city charter wouldn't allow them to float bonds to pay for annexation. In 1968, they changed that law in preparation for the upcoming trial in the Chesterfield case. In 1965, following their rejection of the Henrico ward, secret meetings began between the city, the white officials of the City of Richmond specifically excluding any black representatives and continued up until the time of the compromised with members of Chesterfield County Board of Supervisors and their county manager. The entire discussion from the very beginning was we need white people. They discussed politics, the poll tax is off. The blacks are increasing in their political participation. They commissioned two political discussions and analysis of the 1966 and 1968 elections which predicted that the blacks would receive at least four possibly five seats in the 1970 election. Also during this time, they tried an end run with the general legislature of Virginia, something called the Old Heiser Commission which sought to allow the general assembly to change the boundaries and the vice chairman went on the stand which is evidence in this case and said, "Our sole purpose was to keep the blacks from taking over the city of Richmond." To quote the mayor who headed up the negotiations as long as I am the mayor of the City of Richmond, “The niggers won't take over this town.” To quote the mayor again in speaking to another councilman at a meeting in Virginia Beach,“I did what I did in reference to the compromise because the niggers are not qualified to run the City of Richmond.” And that is the entire focus of the City if Richmond from 1960 and it continues up until today to quote the present mayor of the City of Richmond, “Once we get award plan which he characterizes reconstructive and Section 5 of the Voting Rights Act expires, we'll hold an at large referendum and get rid of that ward plan." The city has resisted the award plan single member districts from the very beginning up to an including the time in which it filed a suit in the three-judge district court in the District of Columbia and maintain the posture that the original annexation was perfectly all right and at large the expanded elections were perfectly fine. It was not until after Petersburg that they even sought or acquiesced an award plan and then went to the acquiescent a ward plan which the district court below found in and of itself had a purpose to maintain white supremacy in the City of Richmond. Now, we have proposed as a relief in this case that the proper remedy is deannexation. I have proposed this in the District Court of Columbia I proposed in what's known as Holt two which had still stayed since December of 1971 where we sought an injunction because the Voting Rights Act have not been complied with. That maintained in Holt one. The problem with that position is that we have a basic assumption that an award of the deannexation in this case would result in the end of annexation for cities and that simply isn't the case. An award of deannexation in this particular case would uphold a dignity of the Voting Rights Act in 1965 would serve notice that you can't go out to “keep the niggers form taking over a municipal government and serve that purpose well.” It would not prevent cities from expanding as Judge Butzner of the Fourth Circuit so cogently noted divestiture, his a word for deannexation, would not mean that cities can't annex even where annexation would change the racial percentages of the population.
Byron R. White: Are you argue -- do you argue the mere fact of converting from a multimember to a permanent large to a single member district system had a dilutive effect?
Cabell Venable: Per se diluted effect, Mr. Justice White, no sir, I don't argue that. I argue that in the context of a purposeful attempt to dilute --
Byron R. White: Well, tell me -- you said a moment ago that the purpose was to use a single member district plan to maintain white supremacy, how would it do that?
Cabell Venable: It would do it this fashion. If you will note that the word plan submitted by the county follows one and only one natural boundary and that's the river. The reason that follows the river is to --
Byron R. White: You mean it's the type of a single member plan is the way they drew their districts?
Cabell Venable: Yes sir. The way they drew their districts plus it sets in question of the Georgia decision which dealt with the potential, the access, the potential access to the political process award plan by its very nature guarantees a maximum.
Byron R. White: Well, I thought you said per se, you wouldn't say that a single member district plan was dilutive even though if it were at large the blacks might get on that.
Cabell Venable: I would not like it but I think in the context of what we -- what the cases have held.
Byron R. White: What do you mean you don't like what? You might not like what?
Cabell Venable: I would not like the change of an at large system in the context of your first questions I believe earlier today that where black citizens have played the democratic process, have given adherence to the whole concept of work within the democratic system and have worked hard to gain their political position to have that rug jerked out at he last minute just when they were within grasp of political control, I think would violate all the standards of fair play in the democratic process. But in answer to your question, in a pure abstract going from an at large to a single member is not per se dilutive but you have to look at dilution in the context within which the change occurs. Now, in the case of the City of Richmond going from a ward plan, I mean from an at large to a ward on the heels of what has to be the most classic case of out and out purposeful disenfranchisement in that context, I believe that award system does not cure nor even approach the question of purpose or the question of effect especially the ward plan prepared by the city of Richmond. The Court in dealing with that question of the burden of the city, it is characterized by Mr. Rhyne of the city that that's an extra burden. Actually, I think what the Court is doing is relaxing the literal interpretation of the Act which says you've got two burdens, you got to prove no purpose, and you got to prove no effect. What the city, I mean, what the Court is actually doing in that case is saying there is an exception to that rule, there is an exception to a literal interpretation. And I think the reasoning goes like this, that if you have a verifiably objective legitimate annexation, it serves all the races of that community. It serves all the overwriting governmental needs and purposes, and if it is objectively verifiable then and only then do you come back to a Petersburg approach and seek to eliminate as much as possible any of the dilutive effect because if you can eliminate the effect there is no need to send it back because you're harming the entire governmental structure in so doing.
William J. Brennan, Jr.: Mr. Venable, do you support an election promptly?
Cabell Venable: Do I support an election? Now, we have been asking for an election, Mr. Justice Brennan, since 1971. I would not in the old city.
William J. Brennan, Jr.: Only limited to the old city?
Cabell Venable: Yes sir. At large in the old city. The problem with this case is that it comes and has come before every Court in a posture that was never envisioned by the Voting Rights Act. It was envisioned by the very clear language that no change will be implemented unless it has been prior approved. Now, whether or not the prior clearance situation is agreeable, the fact is that is what the law says. And yet the city implemented this change, waited over a year before it sought approval, was rejected within a year and a half only five days from a motion for some prejudgment in the Holt II did they ever go to the District Court and have never really made a formal submission since the beginning, since the very first submission. So, we're dealing with a faith accompli as supposed to dealing with what this Act was supposed to be all about to shift the person.
William H. Rehnquist: It wasn't all that clear that it was about annexations at the time this annexation took place, was it?
Cabell Venable: I would agree with you Mr. Justice Rehnquist except for this fact. The facts of this case show uncontrovertibly and I think all parties admit that the white power structure of the City of Richmond set out with one purpose in mind, and that was to disenfranchise the black vote in the City of Richmond. Now, they knew that the Voting Right Act covered changes which had the effect of disenfranchisement.
Byron R. White: Well, that isn't quite clear.
Cabell Venable: To effect voting.
William H. Rehnquist: It's a very debatable question whether it -- to my mind whether you know you had to reach the results you did in Allen and in Perkins and I think a fair minded lawyer could conclude that an annexation was not within the statutory language.
Cabell Venable: Be that -- be that as it may, the fact remains that once it was clear, once it was clear what did the city do? It made a submission, Mr. Holt crusade made their submissions. It was objected to. What did the city do from that point forward? Nothing. It took a motion for summary judgment hearing to bring them all the way to Washington, the district Court of Columbia seeking approval and they still sought approval for the original annexation and not approval for some ward plan. Now, I think one thing that has been missed here today in argument is that not only is the purposeful original annexation had issue and it's effect and impact, but what about the ward plan? The court below found that the ward plan itself operated as a purposeful device to maintain white supremacy in control in the City if Richmond. Now, the fact of the matter is that the city did not carry its burden on any point in the lower court because it cannot carry its burden in the lower court. The objectively verifiable legitimacy of this annexation, all the governments and the Government and the city's arguments deal with, well this is a consequential incidental result of a legitimate annexation. The evidence is replete, I do not agree with the Solicitor General from the very first day of Holt I which is swallowed up in this case. The entire thrust of the Holt intervenors has been that one of the most glaring examples of why this annexation is a bad annexation is that it serves absolutely no governmental purpose. The Government and the city say the courts recognize that annexations are inevitable I will assent to that. But not this annexation was inevitable to approve by remand or otherwise this annexation with a lock to the City of Richmond into the worst possible annexation they could ever have, economically, administratively, racially, and would serve notice that there is a way to avoid the prescriptions.
Harry A. Blackmun: Mr. Venable, a little while ago before some questions came, you were speaking of deannexation. Are you asking this Court to grant you that relief?
Cabell Venable: Yes sir, I am.
Harry A. Blackmun: Was it denied to you below?
Cabell Venable: No sir, it was not. What happened below was that the Court merely said your application for declaratory judgment is denied. They then went on to say that Mr. Holt's request for deannexation had considerable merit took note of the fact that Holt two which is referred to, that's the voting rights case in the Eastern District of Virginia which is pending the decision of this Court where we're asking for an injunction on the question that is covered hasn't been approved. That they knowing the local nuances of such an order that the mechanics of a deannexation order would be the proper one to carry it out. In other words, if we deny the declaration then the coverage question comes into focus. Is it covered? Yes. Has it been approved? No. Therefore it must be in joined and that Court could then have the machinery rather than the District Court of Columbia to carry it through. I'd also suggested that the state court still enforced the annexation court by agreement of the parties, the city and the county which also could be used as an arbitrary for any problems. Deannexation is a very reasonable remedy.
William J. Brennan, Jr.: You took no cross petition here?
Cabell Venable: No I did not sir.
William H. Rehnquist: You can't enlarge the relief granted you by the District Court and I believe under our rules?
Cabell Venable: I understand that Mr. Justice Rehnquist. The problem is, however, that like in Allen everything is here, no more can really be said, perhaps the statement of this Court in affirming the District Court of Columbia could state the effect of its ruling. Because I foresee very sincerely that we will go back with the lower court has affirm as I think it must be and we will go back to Holt II and we will then have to fight the question of coverage and whether or not that Court has more jurisdiction than this Court granted in the Allen case which is to go into substance.
Harry A. Blackmun: Was there a reason you didn't cross petition?
Cabell Venable: Was there a reason at the time I did not cross petition? Yes sir because I felt that it wasn't necessary as under Allen where there was not a question of cross petition this Court said we will -- we could send it back but everything is here we can grapple with the problem now and issue a ruling and then send it back consistent with that. What I'm asking this Court to do is to grapple with the remedy and send it back consistent thereto. I think deannexation is imminently reasonable and under the facts of this case, it requires no great time, you talk about having immediate elections, this deannexation could occur in 30 days by all the evidence in this case.
Harry A. Blackmun: What petition would have better protected your rights wouldn't it?
Cabell Venable: Yes it would and I'm in error if I have denigrated my rights in that respect. I see that my time is up. Thank you.
Warren E. Burger: Thank you, Mr. Venable. Mr. Rhyne, you have eight minutes remaining.
Charles S. Rhyne: Mr. Chief Justice and may it please the Court. There is an error on page 57 of our brief that I would like to correct first of all. We refer there in the last paragraph to the median family income of $12,400.00 in the annex area. The $7,692.00 median income in the remaining part of the city and then on down four lines from the bottom, we say those median family income $20,000.00 it should be under $4,000.00 which is the poverty level. Now, I would also because my distinguished colleague Mr. Wallace has called my attention to it several times to point out that the government does not take the position here that there isn't evident and overwhelming evidence to support the fact that city does have an objectively verifiable legitimate reason for retaining the next area and they say that in their brief on pages 30 to 35 so that they agreed that the evidence is there. The only reason they made reference to the possible remand was just to lean over backwards in case someone might come up with something else but they feel that the best solution of this is to get on with the election. Now, on purpose, I think we ought to be fair about it.
Potter Stewart: Get on with the election everybody say that you agree about that but in his way but Mr. Venable just -- so this one, he was talking about that. He was talking about getting onward on election and confining the electorate to the old city. Now, what sort of getting on with what kind of election are you talking about?
Charles S. Rhyne: An election under the nine ward plan which we feel is the only fair election where the black citizen of Richmond will have full representation and participation in the political process because they are there guaranteed four seats. Now, with reference to the deannexation, Mr. Justice Stewart and Mr. Venable, I would call attention to the fact that the crusade in their representations to the three-judge court below and we've quoted this on pages two and three of our brief. Opposed deannexation said that this would be -- leave the city an empty shell, a worn out shell and it wouldn't have the room or financial resources to provide a good life worth citizens. It would also instantly transform the schools from a black majority system to a virtual black system. So, I would say very earnestly that deannexation other than Mr. Venable everybody agrees is a bad remedy and we sincerely urge that on purpose that Mayor Bagley (ph) was the only one who's quoted throughout. Mayor Bagley (ph) has been off the city council and not as mayor since 1970 and he had nothing to do with this ward plan. There are only two people left on the council who were on there at the time of this bad purpose settlement and that these people have worked awful hard to bring this about. They're not bigots or racist in Richmond, Virginia, I think this is shown to the fact that the white people have elected so many blacks to the council and they have an enormous number of blacks who take part in their city government. I think there are how many departments are headed by blacks, seminary, seven. This is not that kind of a city and so I think that if you're going to talk about purpose, let's be fair about it. One man's terrible words in a bathroom down at Williamsburg shouldn't smear the good people of an entire city. And who's going to pay the penalty for the bad purpose, it shouldn't really come down that way. The Government is obviously satisfied that there is no bad purpose here. They never would have signed this -- agreed to this ward plan and this solution.
William H. Rehnquist: Well, don't you have to persuade us that the District Court is finding against during that point is clearly erroneous?
Charles S. Rhyne: And we urge that it is Your Honor that evidence is overwhelmingly against that finding. The mere fact that the Attorney General agreed to it at some evidence and the other evidence on the ward plan is such as only this so called expert burden and the economic thing where they say we didn't satisfy, they never have told us this what their extra burden was. So, we met our burden overwhelmingly when we -- with the Attorney General presented this nine ward plan. So, I -- and I think that all the evidence there was in support of this plan and proved that the city nail in connection with this plan doesn't have a bad purpose and certainly the ward plan doesn't have a bad effect. It gives everybody a fair participation in the Government of the City of Richmond and so again, we urge that this Court find that the consent judgment is the best possible solution. Not a perfect, there's no perfect solution. But it's the best possible solution and let the people of Richmond get on with this. They've been litigating and litigating and litigating this reference to the Fifteenth Amendment. Well, that's been all the way up here and the Fourth Circuit held no Fifteenth Amendment rights were violated by this annexation. We just go over and over and over again. So we urge you to end it. It can be ended, they can have an election within 60 days and Richmond can govern its own affairs and get out of the Court. That's what we urge to this Court to do.
Warren E. Burger: Thank you gentlemen, the case is submitted.