CITY OF LOCKHART, APPELLANT V. UNITED STATES OF AMERICA AND ALFRED CANO No. 81-802 In the Supreme Court of the United States October Term, 1981 On Appeal from the United States District Court for the District of Columbia Brief for the United States TABLE OF CONTENTS Opinion below Jurisdiction Statement Summary of argument Argument: I. The City's adoption in 1973 of a home rule charter governance and election plan, including an element also used in the City's pre-charter electoral scheme, constituted a change subject to review under Section 5 of the Voting Rights Act. II. The district court's holding that the City's adoption of a home rule governance and election plan had a retrogressive effect on the voting rights of Mexican-Americans was reached under an incorrect legal standard and is based on clearly erroneous factual findings. Conclusion OPINION BELOW The district court's opinion (J.S. App. 2a-37a) is not yet reported. JURISDICTION The order of the three-judge court, convened pursuant to 42 U.S.C. 1973c, was entered July 30, 1981 (J.S. App. 38a). The City of Lockhart filed its notice of appeal on October 28, 1981 (J.S. App. 39a). This Court noted probable jurisdiction on March 1, 1982. The jurisdiction of this Court is invoked under 42 U.S.C. 1973c. QUESTIONS PRESENTED 1. Whether the City's adoption in 1973 of a home rule charter governance and election plan, including an element also used in the City's pre-charter electoral scheme, constituted a change subject to review under Section 5 of the Voting Rights Act. 2. Whether the district court's holding that the adoption of that plan had a retrogressive effect on the voting rights of the City's Mexican-American residents was reached under a correct legal standard and was not clearly erroneous. STATEMENT 1. The City of Lockhart brought this suit in February 1980 under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, seeking a declaratory judgment that the adoption of its home rule charter in 1973 did not produce electoral changes that had the purpose or effect of abridging the voting rights of Mexican-American citizens (J.S. App. 2a). Following a two-day trial before a three-judge panel of the United States Court for the District of Columbia (J.S. App. 2a), in which submissions were "limited to evidence pertaining to the 'effect' of the adoption" of the charter (ibid.), the action was dismissed on the merits on the basis of the following factual findings and undisputed evidence. a. Lockhart lies in Caldwell County, Texas, approximately 30 miles south of Austin (J.S. App. 3a). In 1970, Lockhart's population of 6,489 persons was 45% Anglo, 41% Mexican-American and 14% black (ibid.) Under Texas law, municipalities must be "general law," "special charter" or "home rule" cities (J.S. App. 3a). From 1917 until 1973, Lockhart was a "general law" city, a classification under which it had power to undertake only tasks specifically authorized by Texas law. As a "general law" city, it was required by state law to have a mayor and two commissioners elected at-large every two years. Lockhart had no control over the size of its governing body or the method of selecting it (id. at 3a-4a). Although Texas law did not specifically authorize the use of numbered posts by a "general law" city, Lockhart elected its two commissioners to numbered posts (id. at 4a). /1/ If a general law city satisfies certain state law requirements, it may adopt a city charter and become a home rule city. In drafting a charter, a city is afforded broad leeway to adopt any form of government and election procedures that is not forbidden by state law. For example, a city may choose a council or commission form of government and may elect its members at-large, with or without numbered posts, or from single-member districts. It may also stagger the terms of its elected officials (J.S. App. 4a). In 1972, the Lockhart City Commission appointed a 15-member committee to study the feasibility of converting Lockhart to "home rule" status. The committee, which was composed of nine Anglo, four Mexican-American, and two black members recommended the formation of a charter commission to draft a home rule charter. The study committee members were subsequently elected as the Charter Commission (J.S. App. 5a). On February 20, 1973, the citizens of Lockhart adopted by referendum the home rule charter as drafted by the Commission. The charter provided for a government consisting of a mayor and four council members, all to be elected at-large. The charter mandated the election of council members to numbered posts. Their terms were to be staggered: the mayor and two designated council members were to be elected in even-numbered years and the remaining two council members in odd-numbered years. Elections under this charter were held every year from 1973 through 1978 (J.S. App. 5a). Data from the elections held under the charter reveal a high correlation between the number of Spanish-surnamed voters who participate in Lockhart's elections and the number of votes that Spanish surnamed candidates receive, and thereby establish that racial bloc voting is practiced in Lockhart (J.S. App. 6a-7a). Prior to adoption of the home rule charter, no Mexican-American had been elected to a position in the Lockhart city government. In 1978, however, after expansion of the council from two or four members, Bernard Rangel, a Mexican-American, won a seat on the city council (id. at 7a). /2/ b. In 1977, four Mexican-Americans had filed a lawsuit challenging the constitutionality of the City's method of electing council members under the charter. In the course of that trial, it was revealed that Lockhart had never sought clearance of its home rule charter pursuant to Section 5 of the Voting Rights Act (J.S. App. 5a-6a). See Cano v. Kirksey, No. 77-CA-133 (W.D. Tex. Apr. 5, 1978). /3/ A second action was filed in which the district court enjoined the City from holding elections until the 1973 electoral changes received Section 5 approval (J.S. App. 6a). Cano v. Chessar, No. A-79-CA-0032 (W.D. Tex. Mar. 2, 1979). Following this order, the City, on May 7, 1979, submitted the home rule charter to the Attorney General for Section 5 preclearance. On June 27, 1979, the Attorney General requested additional information, which was provided by the City in July. On September 14, 1979, the Assistant Attorney General, on behalf of the Attorney General, interposed an objection pursuant to Section 5 "insofar as (the home rule charter) incorporates an at-large method of election, with numbered posts and staggered terms" (J.S. App. 6a; Defendants' Exh. 12). Lockhart, thereupon, filed this action for declaratory relief (ibid.). 2. The three-judge district court panel (Robinson, C.J., dissenting) dismissed the City's suit on the merits. Noting that a plaintiff's burden in a Section 5 declaratory judgment action is to demonstrate that the electoral changes at issue have neither the purpose nor the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group (J.S. App. 14a-15a), the court held (id. at 16a) that the City had failed to carry its burden of demonstrating that the 1973 electoral changes would not have the effect of abridging the voting rights of Mexican-Americans in Lockhart and that therefore the request for a declaratory judgment had to be denied. /4/ The court focused on three electoral features of the "home rule governance and election plan" contained in the charter adopted by the City in 1973: the use of numbered posts for councilmanic elections; the decision to have four elected councilmembers (an increase of two over the number of commissioners who had carried out analogous functions in the pre-charter city government); and the use of staggered terms for the councilmembers (J.S. App. 5a, 7a-8a, 15a-16a). In thus focusing its inquiry, the court rejected the City's contention that, because Lockhart had used numbered posts prior to November 1, 1972, the effective date for its coverage by Section 5, the numbered post provision of the charter was not a change subject to Section 5 review (id. at 10a). The court reasoned, first, that the numbered posts for councilmember seats were features of a newly created election scheme that was part of the "entirely new form of city government" that replaced the abolished commission form of government by virtue of the voters' adoption of the home rule charter (id. at 11a). Second, the court concluded that the use of numbered posts was impermissible under Texas law for a general law city (because the practice was not expressly authorized by state law) and that the use of such a feature by the City during its pre-charter years therefore "must be treated for Section 5 purposes as if it had never existed until it appeared legitimately" in the 1973 home rule charter (id. at 11a-13a). The validation of numbered posts in itself constituted a change, the court reasoned (id. at 13a). On the merits, the court concluded that the electoral changes embodied in the home rule charter -- specifically the use of numbered posts and staggered terms -- produced a "synergistic discriminatory effect" (J.S. App. 14a) constituting an impermissible retrogression in the ability of Mexican-Americans to influence electoral results in Lockhart (id. at 16a). The court, therefore, denied the City's request for a declaratory judgment (id. at 17a). The court reached this conclusion as to numbered posts on the basis of its finding that where, as in Lockhart, elections are characterized by a pattern of racial bloc voting, the use of numbered posts in an at-large electoral system diminishes the opportunity of minority group members to elect candidates of their choice by concentrating their voting strength effectively (J.S. App. 7a-8a). In any single head-to-head contest, the majority racial group's candidate would necessarily win if bloc voting occurs; but if the field of candidates competing against each other is enlarged, and the majority vote is split among a number of candidates, a minority group, concentrating its strength through "single-shot or bullet voting" behind one or two candidates, can prevent the majority's candidates from winning all the available seats (ibid.). To the extent that numbered posts create a series of separate contests with small fields of candidates, the "leverage" of single shot voting is reduced (ibid.). The court also concluded that "(t)he employment of staggered terms further diminishes this leverage" (id. at 8a). Chief Judge Robinson, in dissent, found no impermissible retrogression resulting from Lockhart's adoption of the home rule charter. Initially, he held that the only electoral changes that were before the court were the addition of two numbered post council seats to the two that had previously existed and the provision requiring election to the two additional seats in odd-numbered years (J.S. App. 23a). He thus concluded that the charter simply retained two numbered posts from pre-charter days and that the continued use of those posts did not constitute a change triggering Section 5 review (ibid.). He regarded the prior legality or illegality of these numbered posts under state law as irrelevant, in light of Perkins v. Matthews, 400 U.S. 379 (1971), which held that the electoral procedure that is in fact in force, regardless of its legality, is the benchmark for determining whether there has been an impermissible voting change (J.S. App. 30a). With regard to the two new numbered council seats, Chief Judge Robinson concluded that they did not produce retrogression, because Lockhart's voters would now simply have the same choice at the polls every year that, in pre-charter years, they exercised every other year: i.e., the election of two council members to numbered posts (J.S. App. 33a). Similarly, regarding staggered terms, Chief Judge Robinson concluded that the charter did not cause retrogression in minority voting strength, because each council election would involve the election of two candidates to numbered seats, just as before enactment of the charter (J.S. App. 35a). He reasoned that increasing the frequency of elections, without any change in the elections themselves, did not diminish the voting strength of Mexican Americans (id. at 36a). Accordingly, he would have reopened the proceedings to consider evidence regarding discriminatory purpose (id. at 37a). SUMMARY OF ARGUMENT I. The district court correctly concluded that the City's adoption in 1973 of a home rule charter containing a comprehensive governance and election plan was an electoral change triggering the review provision of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c. Section 5, in pertinent part, requires all jurisdictions to which Voting Rights Act coverage was extended in 1975 (a class that includes Lockhart) to submit to the Attorney General for clearance, prior to implementation, any "standard, practice, or procedure with respect to voting different from that in force or effect" on November 1, 1972. This Court has repeatedly stated that Congress intended to subject all changes, regardless of their magnitude, to Section 5 scrutiny. Allen v. State Board of Elections, 393 U.S. 544, 568 (1969); United States v. Sheffield Board of Commissioners, 435 U.S. 110, 122-123 (1978). Lockhart's conversion from a "general law" city, governed by a mayor and two at-large commissioners elected to numbered posts, to a "home rule" city governed by a council-manager system, including an enlarged legislative body that wielded greatly expanded powers and that was selected in staggered elections with candidates running at large for numbered posts, qualifies as a change requiring Section 5 preclearance. The court below properly rejected the City's contention that the numbered post feature of its new home rule governance and election plan was not reviewable because the same feature had been included in the commission government plan previously followed by the City. In converting to home rule status, Lockhart was empowered to abandon the old election plan and to devise a new one comprising elements entirely of its own choosing. The fact that an element chosen for the new home rule plan is the same as one employed in the earlier plan should not serve to insulate the decision making process from scrutiny for discriminatory purpose as to this aspect of the plan. By the same token, neither should it preclude the court from reviewing the new election plan in its entirety as to discriminatory effects. The scope of review engaged in by the court below was therefore entirely proper under Section 5. II. The district court, however, committed reversible error in finding that Lockhart's electoral changes had a retrogressive effect on Mexican-American voting strength and that the City therefore did not carry its burden of showing that the new election plan had no discriminatory effect. The court correctly acknowledged that, under Beer v. United States, 425 U.S. 130, 141 (1976), Section 5 merely insures that no voting change will be made that "would lead to retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" and does not guarantee that any new procedure used will maximize minorities' voting strength. But the court employed incorrect legal principles in determining the basis for comparison of the charter election plan with the earlier plan; and its retrogression finding was clearly erroneous in the face of record evidence respecting the City's actual experience under the charter election plan. Numbered posts and staggered terms may, in some circumstances, operate in conjunction with racial bloc voting to produce a discriminatory impact on minority voting rights. But in this case the prior plan, against which the new plan was to be measured, had employed numbered posts; hence any disadvantage stemming from that feature had existed prior to the adoption of the charter and its inclusion in the new plan could not be considered retrogressive. The court below failed to reach this conclusion because it decided that the numbered post feature had been unauthorized for general law cities and therefore could not be regarded as part of the pre-charter plan. This reliance on what state law appeared to prescribe rather than on the procedure actually followed is at odds with this Court's admonition in Perkins v. Matthews, 400 U.S. 379, 394-395 (1971), that a court must look to the practices that were followed in fact by a particular municipality in order to determine what were its voting practices at a given time for purposes of determining Section 5 coverage. Staggered terms -- added apparently because of the enlargement of the municipal legislative body from a mayor and two commissioners to a mayor and four councilmembers -- were not part of the earlier plan; but the court failed to provide a logical explanation why voting for two numbered posts every year, rather than every other year as before, should be deemed to diminish the opportunities of Mexican-Americans for effective political participation. The court's retrogression finding, based on the interaction of numbered posts and staggered terms, should be vacated for the additional reason that it is clearly erroneous in view of the record evidence showing that the position of Mexican-Americans with respect to numbers of registered voters, the percentage of those actually voting, and the number of candidates running for office actually improved after the home rule charter election plan was put into effect. In addition, it was only after the adoption of this plan that a Mexican-American candidate won an elective position in the city government. Chief Judge Robinson, in dissent, thus correctly concluded that the City had carried its burden of showing that the home rule charter election plan would not have the effect of denying or abridging, on prohibited grounds, Mexican-Americans' right to vote, and that the court therefore should not have dismissed the complaint, but rather should have gone on to consider whether the election plan was in any respect the product of a discriminatory purpose. ARGUMENT I. THE CITY'S ADOPTION IN 1973 OF A HOME RULE CHARTER GOVERNANCE AND ELECTION PLAN, INCLUDING AN ELEMENT ALSO USED IN THE CITY'S PRE-CHARTER ELECTORAL SCHEME, CONSTITUTED A CHANGE SUBJECT TO REVIEW UNDER SECTION 5 OF THE VOTING RIGHTS ACT Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, requires the City of Lockhart to obtain preclearance from the Attorney General or a declaratory judgment from the United States District Court for the District of Columbia whenever it "enact(s) or seek(s) to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972." /5/ This language has been consistently read broadly as reaching "any state enactment which altered the election law of a covered State (or political subdivision) in even a minor way." Allen v. State Board of Elections, 393 U.S. 544, 566 (1969). After reviewing the legislative history of the Voting Rights Act, this Court concluded that Congress intended "that all changes, no matter how small, be subjected to Section 5 scrutiny." Id. at 568. Accordingly, this Court has interpreted Section 5 as requiring preclearance of such changes as candidate qualification requirements (id. at 570; Hadnott v. Amos, 394 U.S. 358 (1969); changes in the location of polling places (Perkins v. Matthews, 400 U.S. 379, 387-388 (1971); annexations (City of Richmond v. United States, 422 U.S. 358 (1975); City of Petersburg v. United States, 410 U.S. 962 (1973); changes in the number of electoral wards, the adoption of numbered posts, majority vote requirements and staggered terms (City of Rome v. United States, 446 U.S. 156 (1980); and redistricting and reapportionment (Georgia v. United States, 411 U.S. 526 (1973)). In reenacting Section 5 in 1970 and 1975, Congress reaffirmed the validity of this Court's interpretation of congressional intent. See Dougherty County Board of Education v. White, 439 U.S. 32, 38-39 (1978); Georgia v. United States, 411 U.S. at 533; S. Rep. No. 94-295, 94th Cong., 1st Sess. 15-16 (1975); H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 8-9 (1975). The regulations of the Attorney General pursuant to which the Department of Justice enforces Section 5 /6/ emphasize that "(a)ny change affecting voting, even though it appears to be minor or indirect, even though it ostensibly expands voting rights, or even though it is designed to remove the elements that caused objection by the Attorney General to a prior submitted change, must meet the Section 5 preclearance requirements." 28 C.F.R. 51.11. Of particular relevance to this case, the Attorney General's regulations specifically refer to "the use of a designated post or place system" (28 C.F.R. 51.12(f) and "staggering the terms of office" (28 C.F.R. 51.12(i) as examples of changes subject to Section 5 preclearance. The City, in fact, does not dispute the proposition that numbered posts and staggered terms are voting practices of the kind covered by Section 5. Rather it asserts (Br. 6-14) that its adoption of numbered posts in the election and governance plan contained in its home rule charter is not within the purview of Section 5 because it is merely a feature retained from the pre-charter system of government that existed before the period of Section 5 coverage. The City thus contends that only the enlargement of the municipal governing body by two places and the addition of staggered terms could be considered by the district court under Section 5, and that the court therefore erred in examining the entire election and governance plan contained in Lockhart's new charter -- a plan providing for a council-manager form of government, an enlarged governing body with greatly expanded powers, and staggered elections with candidates running for numbered posts. See Art. 3 of Lockhart, Texas, Home Rule Charter (Defendant's Exh. 7). /7/ This conception of the boundaries of the court's Section 5 inquiry is based on a mistaken characterization of the process by which the election and governance plan of the home rule charter came into being and on an unwarranted extension of Beer v. United States, 425 U.S. 130 (1976), and Perkins v. Matthews, 400 U.S. 379 (1971), to circumstances not involved in those cases. As explained in the Statement (pages 2-3, supra), in making the transition from a general law city to a home rule city, Lockhart converted from a municipality possessing only the authority specified in Texas law for general law cities to a municipality possessing all the powers it chose to confer upon itself by charter to the extent not prohibited by Texas law. See Forwood v. City of Taylor, 214 S.W.2D 282 (Tex. 1948); City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681, 683 (Tex. Civ. App. 1970); Tex. Rev. Civ. Stat. Ann. Art, 1161 (Vernon 1963). Most significantly, Lockhart was no longer subject to the state-law-imposed commission form of government (see Tex. Rev. Civ. Stat. Ann. Art. 1158 (Vernon Cum. Supp. 1981); it was free to establish an entirely new form of government, writing on a blank slate. Each element of the election and governance plan in the new charter was, therefore, the product of deliberate choices made by the City's Charter Commission in the months preceding the charter's adoption (J.S. App. 5a). Those choices included the decision to incorporate in the charter broad new powers, such as the power of annexation, to be exercised through the new city council (Lockhart, Texas, Home Rule Charter Sections 1.03, 3.07 (Defendant's Exh. 7 at 2, 5-6). /8/ These were powers formerly exercised by the state legislature, which could be influenced by Lockhart voters only through the state legislative electoral system. Such a redistribution of powers among officials elected by different constituencies under different electoral schemes has an obvious potential for purposefully discriminatory abuse and, in any event, alters election law in more than "a minor way" (Allen v. State Board of Elections, supra, 393 U.S. at 566) and thus requires preclearance under Section 5 before implementation. See Horry County v. United States, 449 F. Supp. 990, 995-996 (D.D.C. 1978) (three-judge court). Moreover, because the City's elected officials wielded these new charter powers, features of the plan by which they were elected acquired added importance for Lockhart voters. /9/ In devising that election plan, as well as other features of the charter, the Charter Commission closely followed the charter of a nearby town, similar in size to Lockhart (J.S. App. 5a). That model did not include numbered posts for city council elections, but the Commission nonetheless decided to include numbered posts in its plan (ibid.). This feature is widely recognized as possessing a strong discriminatory potential. See City of Rome v. United States, supra, 446 U.S. at 184 n.19; S. Rep. No. 94-925, 94th Cong., 1st Sess. 27-28 (1975); H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 19-20 (1975); United States Commission on Civil Rights, The Voting Rights Act: Ten Years After 206-208 (1975). The fact that numbered posts were also a part of the election scheme used in the nowabandoned commission form of government, surely should not serve to insulate the Charter Commission's decisionmaking process from scrutiny for discriminatory purpose as to this aspect of the plan it devised. By the same token, neither should it preclude the court from reviewing the new election plan in its entirety as to discriminatory effect. Cf. City of Petersburg v. United States, 354 F. Supp. 1021, 1029 (D.D.C. 1972), summarily aff'd, 410 U.S. 962 (1973) (annexation considered "in the context of (a pre-existing) at-large voting system"). See also City of Richmond v. United States, supra, 422 U.S. at 370. The district court's decision to scrutinize all the newly selected provisions of the charter that constituted "a voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" is, moreover, in accord with the express intent of Congress. In the Senate Report on the 1975 Voting Rights Act amendments, the Committee observed (S. Rep. No. 94-295, 94th Cong., 1st Sess. 19 (1975)): "In some Section 5 cases, a change in the voting practice or procedure may also retain some features of the previous system, and all aspects of such a change are in reach of Section 5." /10/ That is precisely the situation here. The City has changed its governance and election scheme and has deliberately "retain(ed)" within that scheme the use of numbered posts. All aspects of the "change," including the retained feature, are therefore within the purview of Section 5. Beer v. United States, supra, and Perkins v. Matthews, supra, do not support the City's argument to the contrary. Beer was an action for a declaratory judgment that a New Orleans plan reapportioning five city council districts mandated by the city charter did not violate Section 5. The charter, which had been adopted before the effective date of Section 5, also required the election of two council members at-large. In holding that the two at-large seats were not subject to Section 5 review, the Court stated (425 U.S. at 138-139): The ordinance that adopted (the reapportionment plan) made no reference to the at-large councilmanic seats. Indeed, since those seats had been established in 1954 by the city charter, an ordinance could not have altered them; any change would have required approval by the city's voters. The at-large seats have existed without change since 1954 were not subject to review in this proceeding under Section 5. Perkins merely held that in determining the nature of the voting practices during the period immediately preceding Section 5 coverage, one should look to practices actually employed rather than to what state law had dictated those practices should be. Neither Perkins nor Beer involved the creation, within the period of Section 5 coverage, of a comprehensive election plan that superseded the plan employed when the Voting Rights Act became effective and that expressly adopted certain features of the superseded plan. The logic of the City's argument, finally, would require the conclusion that, even if the Lockhart Charter Commission deliberately set out to devise a home rule election plan that would reduce the opportunities of Mexican-American voters to participate effectively in the electoral process, Section 5 of the Voting Rights Act would prove no obstacle to the plan's implementation so long as the Commission took care to select its discriminatory features from those included in the election plan that was in effect on November 1, 1972. The district court below, as well as the court in Cano v. Chessar, No. A-79-CA-0032 (W.D. Tex. Mar. 2, 1979), correctly rejected the argument that would dictate such a result. /11/ The 1973 home rule charter plan establishing a council-manager form of government and providing for the election of four council members to numbered posts in staggered elections is thus reviewable in its entirety under Section 5 of the Voting Rights Act. /12/ II. THE DISTRICT COURT'S HOLDING THAT THE CITY'S ADOPTION OF A HOME RULE GOVERNANCE AND ELECTION PLAN HAD A RETROGRESSIVE EFFECT ON THE VOTING RIGHTS OF MEXICAN-AMERICANS WAS REACHED UNDER AN INCORRECT LEGAL STANDARD AND IS BASED ON CLEARLY ERRONEOUS FACTUAL FINDINGS In Beer v. United States, supra, 425 U.S. at 141, this Court emphasized that "the purpose of Section 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" (emphasis added). Therefore, the duty of a court reviewing a city's electoral changes under Section 5 is not to determine whether the city has maximized the voting strength of its minority citizens, but rather to inquire whether the city has shown that it has not measurably diminished the ability of minorities to participate in the political process. City of Richmond v. United States, supra, 422 U.S. at 370-372. In the present case the district court concluded (J.S. App. 16a) that the home rule governance and election plan is retrogressive within the meaning of Beer, but it reached that conclusion by choosing the wrong standard against which to assess the present election plan and by making factual findings based on speculations concerning the possible effect of certain features that conflict with undisputed evidence of the City's actual experience under the plan. For these reasons, the court's conclusion that the City failed to carry its burden under Section 5 respecting the effect of the plan's adoption cannot stand. See Pullman-Standard v. Swint, No. 80-1190 (Apr. 27, 1982), slip op. 13-14. To be sure, the use of numbered posts and staggered terms may in many instances operate to diminish the ability of minorities to elect candidates of their choice. City of Rome v. United States, supra, 446 U.S. at 184 n.19, 185 n.21; United States Commission on Civil Rights, The Voting Rights Act: Ten Years After 206-208 (1975). Numbered posts virtually eliminate the possibility of single-shot voting, because only the candidate garnering the highest number of votes for each post can triumph (see pages 6-7, supra). Similarly, the use of staggered terms of office limits the number of positions at stake in each election and requires that minority candidates finish higher in the field to win election. Staggered terms may also decrease voter turnout, since voter interest may suffer if fewer places are at stake. Thus, operating in tandem, numbered posts and staggered terms have a clear potential for imposing a serious disadvantage on minority voters. As Chief Judge Robinson correctly pointed out in his dissent (J.S. App. 27a-34a), however, under the proper retrogression analysis mandated by Beer, the court below was required to compare the home rule charter election against the plan that the City had previously employed -- one that also contained numbered posts. The majority's failure to make the correct comparison was based on its conclusion that it should compare the charter plan with the plan of elections that, in the court's view, had previously been mandated by state law -- not with the plan according to which the City had actually conducted its elections. The majority concluded that, under Texas law, the City's use of numbered posts during its time as a general law city was illegal. Chief Judge Robinson correctly disagreed with the majority's approach, concluding (J.S. App. 28a-30a) that Perkins v. Matthews, supra, required the court to look to the practices and procedures actually followed by Lockhart prior to its adoption of the home rule charter. The pertinent section of Perkins v. Matthews concerned the question whether there had been a change within the meaning of Section 5 rather than the question whether a new electoral plan was retrogressive, but its analysis is clearly relevant to the retrogression question here. The City of Canton, Mississippi, had elected its aldermen by wards prior to and immediately after the Voting Rights Act became applicable to Mississippi and its political subdivisions. A state law that was enacted in 1962, two years before the effective date of the Act, had required, however, that municipal alderman be elected at large. The precise question was whether Canton's action in 1969, conforming its practices to the requirements of the 1962 state law by converting from ward elections to at-large elections, was an electoral change. The Court concluded that the 1969 action was such a change; it reasoned (400 U.S. at 394) that "the voting procedure 'in force or effect on November 1, 1964,'" the date as of which Mississippi voting practices became subject to the Voting Rights Act, was "the procedure that would have been followed if the election had been held on that date." It was clear from the record that Canton had been electing aldermen from wards during that period, notwithstanding the provisions of state law, and because this was the procedure that was then "in fact 'in force or effect'" (id. at 395; emphasis in original), the 1969 shift to at-large elections was held to constitute a change. /13/ In the present case, the evidence showed that numbered posts had been used in the commission system of government for the two Lockhart commissioners' seats in every Lockhart election since 1917 (J.S. App. 4a). The City maintained that state law had not required it to forego the use of numbered posts during the time it operated as a general law city; the legality of the practice had never been challenged; and no opinion from the office of the Texas Attorney General had ever suggested that the use of numbered posts by a general law city was unlawful. Nor does it appear that any state court has ever addressed the question. In view of this Court's teaching in Perkins that the Section 5 focus must be on actual voting practices -- not practices as described in state statutes -- the court below clearly erred in comparing the home rule charter election plan with a prior voting plan that is nothing more than a hypothetical construct based on the court's view of the requirements of state law, offered without the benefit of state court guidance. If the proper comparison is made, no retrogression finding may be based on the use of numbered posts. Because numbered posts had been used before, minority groups had not previously enjoyed the leverage of single-shot voting, so their inability to make use of that practice under the charter plan is not retrogressive. The question, then, is whether the expansion of the legislative body from two commissioners to four councilmen and the introduction of staggered terms constitute grounds for finding that the City failed to show that the home rule charter election plan was not retrogressive. Here again, the dissenting opinion provides the correct analysis. The majority stated (J.S. App. 14a) that there was retrogression because "the discriminatory impact of the numbered posts * * * affects twice as many elections for a larger number of positions"; but this assertion does not explain why minority voters' strength should thereby be reduced. As the dissenting judge observed (id. at 33a): "Every year, as a councilmanic election in Lockhart approaches, minorities would occupy the same relative position they formerly did in every alternate year -- perhaps no stronger, but certainly no weaker." The court's conclusion respecting staggered terms -- that they work, in combination with numbered posts, to produce a "synergistic discriminatory effect" (J.S. App. 14a) -- has similar infirmities. As Chief Judge Robinson observed (id. at 35a), the use of staggered terms means only that the voters are voting every year for candidates vying for two numbered posts, rather than every other year. It is not apparent why the experience of minority candidates in each separate election should be considered altered merely because the process will repeat itself during the next year rather than two years later. Even if electing only two councilmembers at a time tends to "highlight individual contest" -- a factor stressed by the court below (id. at 8a), the fact remains that similar highlighting occurred in each biennial election held in the pre-charter period. It is true that some witnesses suggested that holding elections every year might tend to reduce voter turnout and that reduced turnout would, in turn, have a negative effect on minority participation (J.A. 16a, 57a-59a). But there was no reason to rely on speculations in this case because the City had actually held elections under the home rule charter election plan. The evidence available from those elections showed that minority turnout had not been reduced. Indeed, to the contrary, Mexican-American voters have voted in greater numbers since the adoption of the charter. In 1970, for example, 64 out of a total of 478 voters (13.39%) were Spanish-surnamed voters, while in 1978 -- the last year for which data were available -- some 660 Spanish-surnamed persons voted, accounting for 33.12% of the total number of voters participating (J.A. 77a). Furthermore, Mexican-Americans have run for office in increasing numbers since the adoption of the charter. Between 1938 and 1972, only two Mexican-American candidates filed in the City's elections, but in the five-year period immediately after the change to home rule, seven Mexican-Americans declared their candidacies (J.A. 76a). In addition, since 1973, Mexican-American voter registration has increased from 599 in 1970 to 974 in 1977 (id. at 66a). Finally, in 1978, for the first time, Lockhart's voters elected a Mexican-American, Bernard Rangel, to the city council (J.S. App. 7a). A finding of retrogression on this record -- i.e. a finding with respect to "the reality of changed practices as they affect (minority) voters" (Georgia v. United States, supra, 411 U.S. at 531) -- is clearly erroneous. In sum, the proper inquiry under Section 5 is whether the ability of the Mexican-American voters of Lockhart "to participate in the political process and to elect their choices to office is augmented, diminished, or not affected by the change affecting voting." Beer v. United States, Supra, 425 U.S. at 141, quoting H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 60 (1975). As we have shown, the court below did not make the proper inquiry because it failed to use the correct bases for comparison, and its retrogression finding also conflicts with the record evidence of the City's actual experience under the home rule charter election plan. The court's finding that the City's home rule charter election plan is retrogressive was therefore made under an incorrect legal standard and, in addition, was clearly erroneous in light of the evidence. For these reasons, the finding cannot stand. Pullman-Standard v. Swint, supra, slip op. 13-14. CONCLUSION The judgment of the district court should be vacated and the case remanded to the district court for consideration of whether the home rule charter election and governance plan was adopted with a purpose to discriminate. Respectfully submitted. REX E. LEE Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General BRIAN K. LANDSBERG Attorney JUNE 1982 /1/ Under the numbered post system, candidates were required to designate which of the two commission seats they sought. The candidates drawing the most votes for each seat won the election (J.S. App. 4a). /2/ In addition, since adoption of the charter, more Mexican-Americans have registered to vote (J.A. 66a), more have voted (id. at 77a), and more have filed as candidates for office (id. at 76a). /3/ As a result of the 1975 amendments to the Voting Rights Act, Pub. L. No. 94-73, Section 405, 89 Stat. 405, the State of Texas and the City of Lockhart must comply with the preclearance requirements of Section 5 for electoral changes made after November 1, 1972. /4/ Because an inquiry into discriminatory purpose would be unnecessary if the City were unable to satisfy its burden under the "effect" standard, the district court confined its review in the first instance to whether the changes in question had an impermissible effect under Section 5 (J.S. App. 2a). Had the City sustained its "effect" burden, the second part of the bifurcated trial -- proceedings with respect to discriminatory purpose -- would have been held (ibid.). /5/ This requirement has applied to the City since the enactment of the 1975 amendments to the Voting Rights Act. See page 4, note 3, supra. /6/ This Court has recognized the central role of the Attorney General in enforcing Section 5 and has appropriately looked to his interpretation of Section 5 for guidance. Dougherty County Board of Education v. White, supra, 439 U.S. at 39 and cases cited therein. /7/ The City's additional contention (Br. 19-23 that the district court exceeded its powers by reviewing and striking down the City's entire home rule charter is puzzling. In its complaint dated Feb. 6, 1980 (Paragraph 7), the City asserted that the only electoral changes effected by its adoption of the charter were the enlargement of the city council and the addition of off-year elections for the newly-created positions; but the City nonetheless asked, in its prayer for relief, that the court issue an across-the-board judgment declaring that "the Home Rule Charter adopted by the City of Lockhart on February 20, 1973 did not constitute a voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972" or, alternatively, that the charter did not have the purpose or effect of denying or abridging the right to vote on prohibited grounds. Having asked for a declaratory judgment with respect to the entire charter, the City is hardly in a position to complain about the court's reviewing the entire charter under Section 5. In any event, the court apparently accepted the City's invitation only to the extent that it reviewed the "governance and election plan" contained in the charter (J.S. App. 5a). The court found that the City had not met its effects burden with respect to the plan because of the inclusion of numbered posts and staggered elections. (Obviously there are sections of the charter -- e.g., a section requiring public hearings on the budget (Defendant's Exh. 7, Section 9.07, at 20) and one providing when taxes should be paid (Defendant's Exh. 7, Section 9.24, at 24) -- that do not in any way bear on voting practices; and there is, accordingly, no reason for such provisions to be scrutinized under Section 5 of the Voting Rights Act). It is true that, as the City notes (Br. 20 n.24), the court at one point described Lockhart as "a general law city" (J.S. App. 3a); but this is a slender reed on which to rest an argument that the court invalidated the entire home rule charter, particularly in view of the fact that the court merely issued an order denying the City's request for a declaratory judgment and dismissing the complaint. /8/ A great number of choices must be made in the creation of a home rule charter. As the Handbook for Mayors & Councilmembers in Home Rule Cities explains (J.A. 64a-65a): In contrast to counties, general law cities, and special districts, whose organization is fixed by state law, the governmental structure of a home rule city is left entirely to the discretion of local voters. Subject to compliance with the federal Voting Rights Act, the citizens of a home rule city are free to decide their form of municipal government (mayor-council, council-manager, etc.); choose between a large or small governing body; provide for the election of the city council at large, by single-member districts, or by a combination of the two; fix council-members' terms of office at two, three or four years; and establish overlapping terms of office. Moreover, they can decide whether the mayor is to be elected directly by the voters, selected from among members of the governing body, or chosen by some other method. The citizens of a home rule city also have total discretion over the city's administrative structure. Subject only to local preferences, the charter can establish a simple administrative framework or a complex one; prescribe the specific duties of the various city departments or delegate this item to the city council; provide for the appointment or election of major administrative officials; and so on. And finally, the charter can provide for the creation of any boards or commissions local voters decide are needed as part of the machinery of the city government. /9/ The Attorney General has considered such fundamental changes in the form and nature of city governments to fall under Section 5 and has objected when such changes have incorporated discriminatory features (J.A. 74a-75a). See Extension of the Voting Rights Act: Hearings on H.R. 939, H.R. 3247, and H.R. 3501 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 183-185 (1975). The Attorney General did not object to the redistribution of powers effected by Lockhart's home rule charter, and no claim was made in this litigation that the redistribution had any discriminatory effect on the Mexican-American electorate. The question whether a plan has the effect of abridging the right to vote on prohibited grounds is, however, distinct from the question whether it is subject to review under Section 5 for discriminatory purpose or effect. Our submission here is merely that this major redistribution of powers was subject to Section 5 review. /10/ The Committee cited the district court decision in Beer v. United States, 374 F.Supp.357 (D.D.C. 1974) (three-judge court), rev'd, 425 U.S. 130 (1976), as an example of such a situation; but the subsequent reversal of Beer does not affect the significance of this statement with respect to congressional intent regarding features "retain(ed)" by a changed voting practice. As we explain below, the relevant ground for reversal in Beer was that the pre-existing feature in question (at-large city council seats) was not incorporated in the new voting plan. Hence, the Committee merely cited as an example a case which, as this Court later made clear, did not involve facts coming within the language of the Committee statement respecting elements retained within a changed voting procedure. /11/ Congress extended the coverage of Section 5 to include Texas, in part, because it found (S. Rep. No. 94-295, supra, at 27; H.R. Rep. No. 94-196, supra, at 19) that at-large election schemes including such features as "numbered place(s)" were used widely in Texas and had the effect of denying political access to potential Mexican-American and black voters. Accordingly, Congress could not have intended that a Texas city, constructing an election plan from the ground up at a time after Section 5 coverage had become effective, would be free to re-employ those same troublesome features and escape Section 5 review in doing so. /12/ Because, for all these reasons, the election plan incorporating numbered posts must be considered a change, there is no need to address the district court's additional conclusion (J.S. App. 13a) that the numbered post feature constituted a change on the ground that it was validated by the charter and thus, for the first time, authorized under Texas law. /13/ Our reliance on Perkins v. Matthews for determining the proper comparison for retrogression purposes is not inconsistent with our submission (pages 18-19, supra) that Perkins is irrelevant to the question whether all features of Lockhart's home rule charter election plan should be evaluated under Section 5, including those that had been employed under the plan Lockhart had followed when it was a general law city. The section of the Perkins opinion in question merely concerns whether a municipality's real practices for Section 5 purposes are those it follows or those that, under state law, it should follow; Perkins does not concern itself with the consequences of conscious adoption, as part of an overall election plan, of a feature that had been used in the election plan employed on the date that the Voting Rights Act became effective.