F. D. Reese, Etc. v. Dallas County, Alabama, Etc. , 505 F.2d 879 ( 1974 )

AINSWORTH, Circuit Judge:

Plaintiffs appeal from an adverse summary judgment against their challenge to the constitutionality of the districting plan for elections to the County Commission of Dallas County, Alabama. They contend that Dallas County’s at-large election system, which requires that candidates be residents of certain districts that are not equally populated, violates the Fourteenth Amendment. Relying on Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1964), the District Court reasoned that the at-large feature of the plan preserved it against constitutional attack. In our view the plan denies “fair and effective representation” in violation of the Fourteenth Amendment, Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 1383, 12 L.Ed.2d 506 (1964), and so we reverse and remand.

I. The Dallas County Districting Plan

The Statement of Agreed Facts submitted to the trial court shows that the County Commission is the governing body of Dallas County. Its responsibilities include, among others, building roads and bridges, managing and disposing of county properties, providing sewerage improvements, enforcing state health laws, settling legal claims against the county, and raising and investing county revenues. 12 Ala.Code §§ 11, 12 (1958, 1973 Cum.Supp.).

For the purpose of electing county commissioners Dallas County is divided into four districts (City, South, West, and Fork). Laws of Alabama No. 328 (Feb. 8, 1901) (as amended).¹ The City District, containing the City of Selma, has a population of 27,379 — approximately half of the total for the county. The West, South, and Fork Districts, which are rural areas, have populations of 6,209, 14,203, and 7,505 respectively. Four commissioners and a probate judge, who can vote only to break ties, are elected from these districts. Although all the voters of Dallas County vote for all four commissioners, only one of the candidates residing in each district may be elected.² The probate judge may reside in any of the districts.

II. Plaintiff’s Prima Facie Case of Invidious Discrimination

A. One Man — One Vote and Dilution

This case does not present the one man — one vote issue in its conventional form. It is undisputed that the votes cast in Dallas County elections are of equal weight. Each voter can vote for four candidates, and the election is county-wide. Rather this case is an instance of dilution of equally weighted votes — of “minimiz [ing] or cancel [ling] out the voting strength” of a group that has an identifiable set of common interests. Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). The one man — one vote principle is violated when some votes carry more weight than others. Dilution, in contrast, minimizes the impact of one group’s votes, even though they are equal in weight to nondiluted votes.³ Recent decisions have recognized that “access to the political process and not population [is] the barometer of dilution of minority voting strength.” Zim-mer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297, 1303 & n. 14. See White v. Reges-ter, 412 U.S. 755, 765, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973).

Dilution, or restriction of “access to the political process,” is usually accomplished by drawing district lines either to disperse the votes of one faction so that they cannot influence the outcome of elections, or to concentrate those votes in as few districts as possible, thus wasting their strength. In this case none of the familiar devices of dilution, such as gerrymandering, is present. The dilution here is alleged to be accomplished by a method usually encountered in one man — one vote cases: burdening the voters of a particular political unit with an explicit, numerical disadvantage.

B. Testing the Dallas County Plan for Dilution

Because of the explicit, numerical disparity created by the residency requirement, the injury this plan inflicts on Selma voters is apparent on its face. The citizens of Selma are forbidden to elect resident commissioners in proportion to their numbers.⁴ They must select candidates who reside not in their subdistrict but who reside in the rural subdistricts to represent Selma’s interests. It is to be expected that commissioners who are elected from rural sub-districts will give greater priority to needs of the subdistricts in which they reside than to the interests of the City of Selma. Unlike the residents of Selma, the other voters in Dallas County can choose their proportional share of the representative body from among rural candidates who, by reason of their residence in rural areas, can be expected to share their interests.

The Supreme Court and this Court have repeatedly stated that “lack of provision for at-large candidates running from particular geographical sub-districts” is a signal of unconstitutional dilution of one group’s voting strength. Zimmer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297, 1305. “[I]f districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district,” an important element of fair and effective presentation is sacrificed. Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966). See White v. Regester, 412 U.S. 755, 766 n. 10, 93 S.Ct. 2332, 2340, 37 L.Ed.2d 314 (1973). The clear implication of this conclusion is that having representatives who live among constituents is vital to maintain effective representation. Therefore, a districting scheme that inhibits the right of the residents of a subd’istrict from electing representatives living in their own area is undeniably an injury. See Moore v. Leflore County Bd. of Election Com’rs, N.D.Miss., 1973, 361 F.Supp. 609, 613, aff’d, 5 Cir., 1974, 502 F.2d 621.

Dallas County has a subdistrict residency requirement, but it falls upon the four subdistriets unequally. The number of commissioners permitted to reside in Selma is less, in proportion to its population, than the number permitted to reside in the other three subdistricts. Selma — the County’s urban area, with half the total population — is prohibited from having more than one resident commissioner, whereas the three remaining subdistricts — all rural, with the other half of the population — have three resident commissioners. Thus Selma, the urban community, is outvoted three to one by the rural areas, even though its population is virtually equal to their populations.

Dilution is established if a districting scheme works an invidious effect on an identifiable group. See, e. g., White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339. In this case identifying the disadvantaged group is simple, because it is described by the boundaries of Dallas County’s City District. The discrimination, however, is not based on place of residence alone. The group of voters adversely affected by the plan is virtually coextensive with the group of city dwellers in Dallas County. The voters of Selma confront not only the common concerns that develop among residents of the same area, but also a perspective on local issues that the rural population, with its distinct social and economic interests, is unlikely to share. Defendants’ expression of concern at the prospect of a city-dominated county government⁵ clearly shows the divergence of interests. Thus the discriminatory effect of the Dallas County plan is political as well as geographical.

Finding an adverse effect on an identifiable group of voters is not sufficient in itself to establish dilution. The effect must be invidiously discriminatory. See Reynolds v. Sims, supra, 377 U.S. at 561, 84 S.Ct. at 1381. Multimember districts are not unconstitutional per se, but they are not constitutional per se either. See White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339. The circumstances of the present case differ significantly from most of the decisions involving multimember districts. The Supreme Court and this Court have upheld multimember districting schemes with residency requirements somewhat similar to the one challenged here. See Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Goldblatt v. City of Dallas, 5 Cir., 1969, 414 F.2d 774.⁶ In these cases, however, the subdistricts were equally populated and thus did not cause the discrimination that appears in the present case.⁷

The Supreme Court has reviewed a multimember plan with unequally populated residency subdistricts only once. In Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), the statute under review provided for a county government of eleven representatives elected at large by the voters of the seven unequally populated boroughs of Virginia Beach, Virginia. That plan resembles the Dallas County arrangement in that residency requirements provided that seven of the representatives must live in different boroughs. The other four representatives, however, were elected without regard to residence. The Court held the plan constitutional. This Court has held, however, that the Dusch-type plan is not immune from constitutional attack. See Lipscomb v. Jonsson, 5 Cir., 1972, 459 F.2d 335. Like any other, mul-timember plan, the Virginia Beach plan cannot be used to perpetrate a “denial of effective participation in the political process.” Lipscomb v. Jonsson, supra, at 339.⁸

We conclude that the circumstances of the present case differ significantly from Dusch. In that case the presence of the four positions unrestricted as to residency assured that the heavily populated boroughs would not be forced to depend on representatives from the sparsely populated ones. The effect of the plan was to give all voters an equal opportunity to choose their share of the members of the representative body from their own area. Thus as an instrument of fair and effective representation the plan could not be said to create a “distinction on the basis of race, creed, or economic status or location.” Dusch v. Davis, supra, 387 U.S. at 115, 87 S.Ct. at 1555.

A panel of this Court articulated this reading of the Dusch case in Keller v. Gilliam, 5 Cir., 1972, 454 F.2d 55. Keller presented facts indistinguishable from those of the present case. Judge Tuttle found important differences between Keller and Dusch:

What was clear in the Virginia Beach (Dusch) case is that there was no combination by which representatives residing in the districts comprising a minority of the population could combine to work their will over the majority residing in the heavier populated precincts, except with the concurrence of some of the four councilmen who could reside in any of the boroughs and who were elected at large. Quite the contrary is obviously true here.

454 F.2d at 56. In Keller, as in the present case, preserving majority rule was not possible, and the plan was struck down. We believe Keller is sound and decline defendants’ invitation to overrule it.⁹ See Moore v. Leflore County Bd. of Election Com’rs, N.D.Miss., 1973, 361 F.Supp. 609, aff’d 5 Cir., 1974, 502 F.2d 621 (Leflore III); id., N.D.Miss., 1973, 361 F.Supp. 603 (Leflore II); id., N.D.Miss., 1973, 351 F.Supp. 848 (Leflore I).

In Davis v. Thomas County, 5 Cir., 1967, 380 F.2d 93, decided one month after Dusch v. Davis, supra, a panel of this Court upheld an at-large election— subdistrict residency plan in which the districts were unequally populated. In light of our belief in the correctness of Keller, the per curiam opinion in Thomas County cannot be followed.

The result directly supported by Keller is also in harmony with the Supreme Court’s two most recent decisions on the dilution issue. In Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), the Court upheld a legislative reapportionment plan admittedly drawn to reflect the statewide political strengths of the major parties. The use of political criteria was permissible because no invidious discrimination occurred. Although a group of voters in a particular district might have exerted more influence if the lines had been drawn differently, no identifiable political faction was treated differently from any other.

In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the Court struck down multimember legislative districting plans because minorities in the area historically had been officially excluded from the electoral process. These obstacles, the Court reasoned, prevented black and Mexican-American groups from functioning as effective political forces in the context of a multi-member district.

The present case is more like Regester than Gaffney. Coneededly the discrimination here may be less severe than in Regester, insofar as city dwellers are a more heterogeneous faction than blacks or Mexiean-Americans. On the other hand, the discrimination here is current, explicit, and official, unlike the informal historical disadvantages that supported the decision in Regester. 412 U.S. at 766-769, 93 S.Ct. at 2340.

C. Discriminatory Intent

It is unclear whether dilution of a group’s voting power is unconstitutional only if deliberate. See Comment, Political Gerrymandering: A Statutory Compactness Standard as an Antidote for Judicial Impotence, 41 U.Chi.L.Rev. 398, 408-409 (1974). In any event, the intention underlying the Dallas County plan is unambiguous. Although intent often can be inferred from the effects of a districting scheme, see Wright v. Rockefeller, 376 U.S. 52, 56-57, 84 S.Ct. 603, 605, 11 L.Ed.2d 512 (1964), in this case there are explicit declarations to consider.

Defendants assert that the districting plan is designed to assure “a governing body which is knowledgeable of subjects relating to agriculture” and to prevent the city from establishing a “tyranny of the majority” that would “encroach upon legitimate minority interests.” By its sponsors’ own admission, the plan is designed to “minimize or cancel out” the voting strength of one group of voters. The Supreme Court has repeatedly declared that voters may not be excluded from the electoral process out of concern for the way they might vote. See Evans v. Cornman, 398 U.S. 419, at 423, 90 S.Ct. 1752, at 1755, 26 L.Ed.2d 370 (1970); Cipriano v. City of Houma, 395 U.S. 701, 705-706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969); Carrington v. Rash, 380 U.S. 89, 93-94, 85 S.Ct. 775, 778-779, 13 L.Ed.2d 675 (1965). This case presents a less extreme form of the same strategy. Instead of excluding a group of voters outright, the county has weakened their ability to participate by restricting unequally their opportunity to elect candidates from their own area.

III. Evaluating the Prima Facie Case

A. The Standard of Review

Plaintiffs have established a strong prima facie case of official discrimination intended to dilute their voting strength. Unless some justification can be discovered that rebuts this prima facie case, the discrimination is invidious and violates the Fourteenth Amendment. See, e. g., Kilgarlin v. Hill, 386 U.S. 120, 122, 87 S.Ct. 820, 822, 17 L.Ed.2d 771 (1967).

The standard of review by which justifications of the plan are to be judged is not entirely clear. See Casper, Apportionment and the Right to Vote: Standards of Judicial Scrutiny, 1973 Sup.Ct.Rev. 1, 29-32. Compare Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), with McDonald v. Board of Election Com’rs of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). The most recent articulation of the standards of review under the Equal Protection Clause appears in Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972):

To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.

The Court concluded that statutes burdening the right to vote “must meet close constitutional scrutiny” and be “necessary to promote a compelling state interest.” Id. at 336-337, 92 S.Ct. at 1000. See Kramer v. Union Free School District, supra; Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855-856, 31 L.Ed.2d 92.

This standard has been applied irrespective of any political or racial implications in the one man-one vote cases concerning congressional districts. Disparities in the weight accorded the votes of residents of different places has been sufficient to trigger strict scrutiny, even though location is not a suspect classification. See, e. g., Ellis v. Mayor and City Council of Baltimore, 4 Cir., 1965, 352 F.2d 123, 129. Here the presence of political discrimination, which the Supreme Court has suggested is a suspect classification,¹⁰ underscores the propriety of a strict standard of review.

In the one man-one vote cases, greater deference has been shown toward apportionment plans for state legislative districts than for congressional districts.¹¹ Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 983-985, 35 L.Ed.2d 320 (1973). No such distinction has appeared in adjudication of the dilution issue. There is, to be sure, a strong suggestion of judicial deference to legislative judgment attacked on grounds of dilution through political discrimination. See Gaffney v. Cummings, supra, 412 U.S. at 752-753, 93 S.Ct. at 2331-2332. This deference, however, is motivated by wholly different policies from those that underlie the deference shown in Mahan v. Howell, supra. Apportionment plans for state legislative districts that deviate from the numerical ideal of equally weighted votes are tolerated out of respect for important values of federalism. The federal judiciary is reluctant to apply the principles of Equal Protection rigidly where the vitality of local political institutions and subdivisions is at stake. See Mahan v. Howell, supra, 410 U.S. at 325-330, 93 S.Ct. at 985-987. Thus a more moderate standard of review is appropriate.

In the dilution cases, however, regard for federalism is not the reason for judicial restraint, but rather respect for the institutional limitations on the courts’ ability to gauge the ramifications of districting patterns. Intentional dilution of a group’s voting strength is a serious affront to the Constitution. Establishing this injury in court, however, is often very difficult. In most dilution cases the convenient numerical guidelines available in conventional one man-one vote cases are absent. Instead the courts must evaluate evidence of the political alignments of allegedly disadvantaged factions and infer the intent of the legislature from actions that may have several plausible motives. It is not surprising, therefore, that so-called “partisan gerrymandering,” Casper, Apportionment and the Right to Vote: Standards of Judicial Scrutiny, 1973 Sup.Ct.Rev. 1, 24, is more difficult to verify than racial gerrymandering, because dilution on the basis of race can be demonstrated by reliable demographic data.¹² Compare Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) with Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The difficulty of proof, however, is the principal difference.

B. Justifications for the Districting Plan

The kinds of justifications that may rebut a prima facie showing of dilution are not as clearly defined as the justifications the courts entertain in defense of deviations from numerical equality. See Reynolds v. Sims, supra, 377 U.S. at 622-623, 84 S.Ct. at 1413 (Harlan, J., dissenting). Adjudication of the latter issue long ago established that preservation of rural-urban balance in a legislative body is a categorically unacceptable reason for departing from the one man-one vote standard. See, e. g., Davis v. Mann, 377 U.S. 678, 692, 84 S.Ct. 1441, 1448, 12 L.Ed.2d 609 (1964). This purpose — the protection of “legitimate minority interests” — is the only one offered to justify the discrimination caused by the Dallas County plan.

Although defendants urge that their concern is to ensure “knowledgeable” representatives, their fear of a “tyranny of the majority” exercised by the voters of Selma demonstrates that influence rather than mere expertise, is their objective. Moreover, defendants do not explain why the residents of Selma cannot be trusted to elect representatives who are qualified to protect their interests, if agriculture is indeed so vital to the entire county.

In Dusch v. Davis, supra, the Supreme Court suggested that if all votes are equally weighted, residency districts of unequal population that preserved agrarian influence might withstand constitutional scrutiny. The Court surmised that the plan under review “seem[ed] to reflect a detente between urban and rural communities.” Id., 387 U.S. at 117, 87 S.Ct. at 1556. It is not clear that the Court intended to permit discriminatory plans to be justified by invoking the protection of agricultural interests as a purpose. The Virginia Beach plan, as we noted earlier, worked no real discrimination. Therefore the question whether protection of agricultural interests would justify a discriminatory plan was not squarely presented.

Even if Dusch does approve the use of unequally populated subdistricts under the circumstances of that case, in Dallas County there is no “detente between urban and rural communities” as found in Dusch, but instead a domination by the latter. However sufficient the preservation of agricultural influence may have been as a justification for the Virginia Beach plan, which did not compromise the democratic principle of fair and effective representation, that purpose does not justify the burdens on electoral participation created by the Dallas County Plan. Under the views we have expressed, the districting plan is constitutionally impermissible.

We remand this case, therefore, for the fashioning of appropriate relief by the District Court under the principles herein announced.

Reversed and remanded.

1 . That enactment provides, in relevant part: Sec. 6. Be it further enacted, That said county of Dallas is here divided into four commissioner’s districts, as follows: City, including that portion of said county which is within the corporate limits of Selma; Fork, including that portion of said county, outside the limits of Selma, lying and being within the fork made by the Alabama and Cahaba rivers; West, including that portion of said county, which is westerly of the Cahaba river; and South, including that portion of said county which is southerly of the Alabama river; to be known as the City District, the Fork District, the West District, and the South District. That all of said members shall be elected at the general election held in August, 1902, and every four years thereafter, that one commissioner shall be elected from each of said districts, and at the time of his election shall be a bona fide resident and voter of said district; and at said election the person who shall receive more votes than any other person in the district, shall be duly declared elected as commissioner from said district; provided, that all of said commissioners shall be elected by all of the qualified voters of said county.

2 . The Statement of Agreed Facts submitted to the trial court shows that' Dallas County is one of thirty-five Alabama counties operating under laws requiring the election of county commissioners who must reside within prescribed geographical subdistricts but who must be elected by an at-large county vote.

3 . This distinction has emerged in one man — - one vote adjudication only recently. In the early reapportionment cases, the two concepts are combined in one description of the evils the one man — one vote principle prohibits. See Reynolds v. Sims, supra, 377 U. S. at 555, 566, 84 S.Ct. at 1378, 1384.

4 . Plaintiffs of course do not assert a right to be guaranteed representation in proportion to their numbers. See White v. Regester, supra, 412 U.S. at 765-766, 93 S.Ct. at 2339. Rather they seek only to remove the legal obstacles to electing resident representatives in proportion to their numbers.

5 . Defendants in fact assert that the entire governing body would be composed of Selma residents if the county is forced to abandon its present scheme. In light of the fact that Selma contains slightly less than 50 per cent of the county’s population, we are at a loss to explain this contention.

6 . In Fortson, it was not claimed that the discrimination inhered in the multimember district, but rather in the use of multimem-ber districts in a statewide plan that provided for single member districts elsewhere in the state. Thus Fortson tells us very little about the issues presented in this case.

7 . Several District Courts have also upheld such plans. See Dove v. Bumpers, E.D.Ark., 1973, 364 F.Supp. 407; Perkins v. Matthews, S.D.Miss., 1969, 301 F.Supp. 565; Reed v. Mann, N.D.Ga., 1964, 237 F.Supp. 22. Unequally populated districts, however,, were not alleged in any of these.

8 . The same must be said of plans, such as that in Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), that provide for equally populated districts. See Moore v. Leflore County Bd. of Election Com’rs, N.D.Miss., 1973, 361 F.Supp. 603, aff’d, 5 Cir., 1974, 502 F.2d 621.

9 . Our view is shared by the Fourth Circuit, which recently struck down a districting plan indistinguishable from Dallas County’s, and on very similar facts. See Lytle v. Commissioners of Election of Union County, 4 Cir., 1974, 509 F.2d 1049 [No. 74-1619, June 17, 1974]; cf. McCain v. Lybrand, 4 Cir., 1974, 509 F.2d 1049 [No. 74-1619, June 17, 1974], cert. denied,--U.S. -, 95 S.Ct. 515, 42 L.Ed.2d 308 [November 25, 1974], decided in a joint opinion with Lytle, supra.

Defendants also argue that Keller was in fact decided on the basis of a single member district election residency scheme, since that plan was in effect when the suit was filed. The District Court declared that plan unconstitutional and ordered at-large elections, but retained the subdistrict residency requirement. This remedy was challenged on appeal. Thus the case considered in Keller was a challenge to a plan to be implemented at the 1971 elections. The court’s analysis of that plan was based on a fully ripened controversy and is not dicta in any sense. That the same plan was enacted by the Mississippi Legislature but challenged by the Attorney General of the United States pursuant to Section 5 of the Voting Rights Act of 1965 did not diminish the vitality of the District Court’s order. Such decrees are not within the reach of Section 5 of the Act. See Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 1761-1762 (1971); Zimmer v. McKeithen, 5 Cir., 1972, 467 F.2d 1381; Moore v. Leflore County Bd. of Election Com’rs, D.C.Miss., 1973, 361 F.Supp. 609, aff’d, 5 Cir., 1974, 502 F.2d 621; Conner v. Board of Sup’rs of Oktibbeha Co., Miss., N.D.Miss., 1971, 334 F.Supp. 280.

10 . See Williams v. Rhodes, 393 U.S. 23, 30-32, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968); Shapiro v. Thompson, 394 U.S. 618, 658-659, 89 S.Ct. 1322, 1344, 22 L.Ed.2d 600 (1969) (Harlan, J., dissenting). Moreover the Court has never suggested that political discrimination is less invidious than racial discrimination. See, e. g., Dusch v. Davis, supra, 387 U.S. at 117, 87 S.Ct. at 1556 (condemning districting plans that “minimize or cancel out the voting strength of racial or political elements of the voting population.” (Emphasis added.) Nor does the extent of the constitutional injury turn on the importance or unimportance of the election. See Hadley v. Junior College Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 54-55, 90 S.Ct. 791, 794-795, 25 L.Ed.2d 45 (1970).

11 . The Supreme Court has even suggested that' in cases of state legislative reapportionment, there may be a de minimis line below which a violation of the one man-one vote principle, even though clearly proved, is insignificant, although no decision has explicitly so stated. Compare Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 2326-2327, 37 L.Ed.2d 298 (1973) with Kirkpatrick v. Preisler, 394 U.S. 526, 530-531, 89 S.Ct. 1225, 1228-1229, 22 D.Ed.2d 519 (1969).

12 . No racial discrimination is alleged in this case.