Wise v. Lipscomb , 98 S. Ct. 2493 ( 1978 )

Mr. Justice White

announced the judgment of the Court and delivered an opinion in which Mr. Justice Stewart joined.

This case involves the recurring issue of distinguishing between legislatively enacted and judicially imposed reappor-tionments of state legislative bodies.

I

In 1971 respondents, Negro and Mexican-American residents of Dallas, Tex., filed suit in the United States District Court for the Northern District of Texas against petitioners, the Mayor and members of the City Council of Dallas, the city’s legislative body, alleging that the at-large system of electing council members unconstitutionally diluted the vote of racial minorities. They sought a declaratory judgment to this effect and an injunction requiring the election of councilmen from single-member districts. The complaint was dismissed for failure to state a claim, but the Court of Appeals for the Fifth Circuit disagreed and remanded. Lipscomb v. Jonsson, 459 F. 2d 335 (1972).

On January 17, 1975, after certifying a plaintiff class consisting of all Negro citizens of the city of Dallas¹ and following an evidentiary hearing, the District Court orally declared that the system of at-large elections to the Dallas City Council unconstitutionally diluted the voting strength of Negro citizens.² The District Court then “afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional.” App. 29.

On January 20, 1975, the City Council passed a resolution which stated that the Council intended to enact an ordinance which would provide for eight Council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at-large. This plan was submitted to the District Court on January 24, 1975. The court then conducted a remedy hearing “to determine the constitutionality of the new proposed plan by the City of Dallas.” Ibid. After an extensive hearing, the court announced in an oral opinion delivered on February 8, 1975, that the city’s plan met constitutional guidelines and was acceptable and that it would issue a written opinion in the near future. Two days later, the City Council formally enacted the promised ordinance, and on March 25, the court issued a memorandum opinion containing its findings of fact and conclusions of law and again sustaining the city plan as a valid legislative Act. 399 F. Supp. 782 (1975).³

The Court of Appeals reversed. 551 F. 2d 1043 (1977). It held that the District Court erred by evaluating the city’s actions only under constitutional standards rather than also applying the teaching of East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976), that, absent exceptional circumstances, judicially imposed reapportionment plans should employ only single-member districts. It concluded that no considerations existed in this case which justified a departure from this preference and remanded with instructions that the District Court require the city to reapportion itself into an appropriate number of single-member districts.⁴ We granted certiorari, 434 U. S. 1008 (1978), and reverse on the grounds that the Court of Appeals misapprehended East Carroll Parish School Bd. and its predecessors.

II

The Court has repeatedly held that redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt. Connor v. Finch, 431 U. S. 407, 414-415 (1977); Chapman v. Meier, 420 U. S. 1, 27 (1975); Gaffney v. Cummings, 412 U. S. 735, 749 (1973); Burns v. Richardson, 384 U. S. 73, 84-85 (1966). When a federal court declares an existing apportionment scheme unconstitutional, it is therefore, appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan. The new legislative plan, if forthcoming, will then be the governing law unless it, too, is challenged and found to violate the Constitution. “ [A] State’s freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.” Id., at 86.

Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the “unwelcome obligation,” Connor v. Finch, supra, at 415, of the federal court to devise and impose a reapportionment plan pending later legislative action. In discharging this duty, the district courts “will be held to stricter standards . . . than will a state legislature . . . .” 431 U. S., at 414. Among other requirements, a court-drawn plan should prefer single-member districts over multimember districts, absent persuasive justification to the contrary. Connor v. Johnson, 402 U. S. 690, 692 (1971). We have repeatedly reaffirmed this remedial principle. Connor v. Williams, 404 U. S. 549, 551 (1972); Mahan v. Howell, 410 U. S. 315, 333 (1973); Chapman v. Meier, supra, at 18; East Carroll Parish School Bd. v. Marshall, supra, at 639.

The requirement that federal courts, absent special circumstances, employ single-member districts when they impose remedial plans, reflects recognition of the fact that “the practice of multimember districting can contribute to voter confusion, make legislative representatives more remote from their constituents, and tend to submerge electoral minorities and overrepresent electoral majorities . . * .” Connor v. Finch, supra, at 415. See also Chapman v. Meier, supra, at 15-16. Despite these dangers, this Court has declined to hold that state multimember districts are per se unconstitutional. See, for example, Whitcomb v. Chavis, 403 U. S. 124 (1971); Fortson v. Dorsey, 379 U. S. 433 (1965); Burns v. Richardson, supra; Chapman v. Meier, supra, at 15. A more stringent standard is applied to judicial reapportionments, however, because a federal court, “lacking the political authoritativeness that the legislature can bring to the task,” must act “circumspectly, and in a manner ‘free from any taint of arbitrariness or discrimination.’ ” Connor v. Finch, supra, at 415, quoting from Roman v. Sincock, 377 U. S. 695, 710 (1964).⁵

The foregoing principles, worked out in the course of reconciling the requirements of the Constitution with the goals of state political policy, are useful guidelines and serve to decide many cases. But, as is true in this case, their application to the facts presented is not always immediately obvious. Furthermore, the distinctive impact of § 5 of the Voting Rights Act of 1965, as amended, 89 Stat. 404, 42 U. S. C. § 1973c (1970 ed., Supp. V), upon the power of the States to reapportion themselves must be observed. Plans imposed by court order are not subject to the requirements of § 5,⁶ but under that provision, a State or political subdivision subject to the Act may not “enact or seek to administer” any “different” voting qualification or procedure with respect to voting without either obtaining a declaratory judgment from the United States District Court for the District of Columbia that the proposed change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” or submitting the change to the Attorney General and affording him an appropriate opportunity to object thereto. A new reapportionment plan enacted by a State, including one purportedly adopted in response to invalidation of the prior plan by a federal court, will not be considered “effective as law,” Connor v. Finch, 431 U. S., at 412; Connor v. Waller, 421 U. S. 656 (1975), until it has been submitted and has received clearance under § 5. Neither, in those circumstances, until clearance has been obtained, should a court address the constitutionality of the new measure. Connor v. Finch, supra; Connor v. Waller, supra. Pending such submission and clearance, if a State’s electoral processes are not to be completely frustrated, federal courts will at times necessarily be drawn further into the reapportionment process and required to devise and implement their own plans.

Ill

Texas was not subject to the Voting Rights Act when this case was pending in the District Court. Hence, insofar as federal law was concerned, when the District Court invalidated the provisions of the Dallas City Charter mandating at-large Council elections, the city was not only free but was expected to devise a substitute rather than to leave the matter to the District Court. This duty, the District Court found, was discharged when the city enacted the eight/three plan of electing Council members. Noting that only if “the legislature failed in [its reapportionment] task, would the responsibility fall to the federal courts” and declaring that the plan adopted by the Council was not one “hastily conceived merely for the purposes of this litigation,” 399 F. Supp., at 797, the District Court proceeded to declare the plan constitutional despite the use of at-large voting for three Council seats. Although there are some indications in the District Court’s opinion that it was striving to satisfy those rules governing federal courts when they devise their own reapportionment plans, it seems to us that on balance, the District Court, as the United States observes in its amicus brief, reviewed the apportionment plan proposed by the Council as a legislatively enacted plan.⁷

The Court of Appeals was not in disagreement in this respect. It observed that “[t]he district court approved the City’s plan for relief, which was enacted as a city ordinance following the court’s decision that the prior system was unconstitutional.” 551 F. 2d, at 1045. It further noted that “the election plan [was] formally adopted by the City Council.” Id., at 1046.

Neither did the Court of Appeals disturb the ruling of the District Court that the ordinance was constitutional. It did, however, insist that the plan also satisfy the special preference for single-member districts applicable where district courts are themselves put to the task of devising reapportionment plans and reversed the judgment of the District Court because in its view the record did not disclose the presence of those special circumstances that would warrant departure from the rule. This was clearly error unless there was some convincing reason why the District Court was not entitled to consider the substitute plan under the principles applicable to legislatively adopted reapportionment plans. As we see it, no such reason has been presented.

It is suggested that the city was without power to enact the ordinance because the at-large system declared unconstitutional was established by the City Charter and because, under the Texas Constitution, Art. XI, § 5, and Texas statutory law, Tex. Rev. Civ. Stat. Ann., Art. 1170 (Vernon Supp. 1978), the Charter cannot be amended without a vote of the people. But the District Court was of a different view. Although the Council itself had no power to change the at-large system as long as the Charter provision remained intact, once the Charter provision was declared unconstitutional, and, in effect, null and void, the Council was free to exercise its legislative powers which it did by enacting the eight/three plan. 399 F. Supp., at 800; Tr. of Oral Arg. 6. When the City Council reapportioned itself by means of resolution and ordinance, it was not purporting to amend the City Charter but only to exercise its legislative powers as Dallas’ governing body. The Court of Appeals did not disagree with the District Court in this respect, and we are in no position to overturn the District Court’s acceptance of the city ordinance as a valid legislative response to the court’s declaration of unconstitutionality.⁸

East Carroll Parish School Bd. v. Marshall does not support the conclusion of the Court of Appeals in this case that the plan presented by the city must be viewed as judicial rather than legislative. In that case the District Court instructed the East Carroll police jury and school boards to file reapportionment plans. They both submitted a multimember arrangement which the court adopted. We held that the District Court erred in approving a multimember plan because “when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances.” 424 U. S., at 639. In reaching this conclusion, however, we emphasized that the bodies which submitted the plans did not purport to reapportion themselves and, furthermore, could not even legally do so under federal law because state legislation providing them with such powers had been disapproved by the Attorney General of the United States under § 5 of the Voting Rights Act of 1965. 424 U. S., at 638 n. 6, 637 n. 2. Under these circumstances, it was concluded that the mere act of submitting a plan was not the equivalent of a legislative Act of reapportionment performed in accordance with the political processes of the community in question.

Even if one disagreed with that conclusion, this case is markedly different from East Carroll Parish School Bd. After the District Court found that the existing method of electing the City Council was constitutionally defective on January 17, 1975, it “gave the City of Dallas an opportunity to perform its duty to enact a constitutionally acceptable plan.” 399 F. Supp., at 792. The City Council, the legislative body governing Dallas, promptly took advantage of this opportunity and on January 24, 1975, passed a resolution which stated “that it is the intention of the majority of this City Council to pass an ordinance [enacting a plan of eight single-member districts with three individuals, including the Mayor, to be elected at-large].” App. 188. On February 8, 1975, the District Court announced in an oral opinion following a hearing held to consider the constitutionality of the city’s plan that it was accepting the city’s plan but retained jurisdiction. Two days later, on February 10, the City Council, as promised, enacted an ordinance incorporating the eight/three plan. Id., at 189. In a written opinion filed subsequently, the District Court specifically found "that [the city of Dallas] has met ![its constitutional] duty in enacting the eight/three plan of electing council members.” 399 F. Supp., at 792. Here, unlike the situation in East Carroll Parish School Bd., as the Court there viewed it, the body governing Dallas validly fnet its responsibility of replacing the apportionment provision invalidated by the District Court with one which could survive constitutional scrutiny. The Court of Appeals therefore erred in regarding the plan as court imposed and in subjecting it to a level of scrutiny more stringent than that required by the Constitution.⁹

Finally, it is urged that the Court of Appeals be affirmed because Texas became subject to § 5 of the Voting Rights Act while the case was pending on appeal and because under § 5, as amended, Dallas could neither enact nor seek to administer any reapportionment plan different from that in effect on November 1, 1972, without securing the clearance called for by that section. It is urged that the city ordinance of February 1975, relied upon by the District Court and validly enacted prior to § 5’s becoming applicable to 'Texas, cannot be considered as effective law until it has secured the necessary approval. The same is said with respect to the Charter amendment approved by the people of Dallas in 1976. See n. 3, supra.

We think it inappropriate, however, to address the § 5 issue. Respondents may, of course, seek to sustain the judgment below on grounds not employed by the Court of Appeals; but there is a preliminary question as to whether the § 5 issue is open in this Court. Respondents did not cross-petition, and sustaining the § 5 submission, even if it would not expand the relief in respondents’ favor, would alter the nature of the judgment issued by the Court of Appeals. See United States v. New York Telephone Co., 434 U. S. 159, 166 n. 8 (1977). In any event, however, we are not obligated to address the issue here, particularly where the Court of Appeals did not deal with it -one way or another — apparently because it considered the plan tb.be a judicial product beyond the reach of the section. The impact of the Voting Rights Act on the city ordinance and on the Charter amendment approved by referendum will be open on remand, and we deem it appropriate for the Court of Appeals to deal with these questions.

The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings.

So ordered.

1 Several plaintiffs, including all of the Mexican-American plaintiffs, were dismissed from the case for failure to respond to interrogatories. Two Mexican-Americans subsequently attempted to intervene. The District Court denied their application but later permitted several Mexican-Americans to participate in the remedy hearing held after the at-large election system was declared unconstitutional.

2 Petitioners did not appeal this ruling and do not question it here.

3 On April 1, 1975, the Dallas City Council election was held under the eight/three plan. During the pendency of the appeal the electorate approved this plan in a referendum conducted in April 1976, thus incorporating it into the City Charter.

4 The court stated that the city may provide for the election of the Mayor by general citywide election if it desired. Mr. Justice Powell stayed the Court of Appeals’ judgment pending disposition by this Court. 434 U. S. 1329 (1977).

5 The numerous cases in which this Court has required the use of single-member districts in court-ordered reapportionment plans have all involved apportionment schemes which, unlike the one in this case, were held unconstitutional because they departed from the one-person, one-vote rule of Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny. We are fully persuaded, however, that the same considerations which have induced this Court to express a preference for single-member districts in court-ordered reapportionment plans designed to remedy violations of the one-person, one-vote rule compel a similar rule with regard to court-imposed reappor-tionments designed to cure the dilution of the voting strength of racial minorities resulting from unconstitutional racial discrimination. Indeed, the Court has justified the preference for single-member districts in judicially imposed reapportionments on the ground that multimember districts “tend to submerge electoral minorities and overrepresent electoral majorities . . . ,” which is the source of the very violation which the court is seeking to eliminate in racial dilution eases. Connor v. Finch, 431 U. S. 407, 415 (1977). See White v. Regester, 412 U. S. 755, 765-770 (1973).

6 “A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act.” Connor v. Johnson, 402 U. S. 690, 691 (1971).

7 In his oral announcement, the judge remarked: “I’m not saying it’s the best plan. It’s not even the plan that this Court would have drawn. But this Court’s not in the plan-drawing business. That’s the legislative duty.” Record 195.

8 The record suggests no statutory, state constitutional, or judicial prohibition upon the authority of the City Council to enact a municipal election plan under circumstances such as this and respondents have been unable to cite any support for its contention that the City Council exceeded its authority. It must be noted that since there is no provision under Texas law for reapportionment of Home Rule cities such as Dallas by the state legislature, or other state agency, acceptance of respondents’ position would leave Dallas utterly powerless to reapportion itself in those instances where the time remaining before the next scheduled election is too brief to permit the approval of a new plan by referendum. We are unwilling to adopt such an interpretation of Texas and Dallas law in the absence of any indication whatsoever that it would be accepted by Texas courts.

9 In light of our disposition, we do not consider petitioners’ claim that the Court of Appeals also erred in holding that the alleged effect of all single-member districts on the representation of Mexican-American voters and the desirability of permitting some citywide representation did not constitute special circumstances justifying departure from the preference for single-member districts in remedial reapportionments conducted by federal courts.