An application to stay, pending the disposition of a petition
for certiorari, the Court of Appeals' judgment requiring applicant
Texas county officials to proceed with procedures for the
"preclearance," under Section 5 of the Voting Rights Act of 1965,
of a new apportionment plan for county commissioner precincts
ordered by the District Court and approved by the county
commissioners, is granted. It appears that there is a "reasonable
probability" that four Members of this Court will vote to grant
certiorari, and that the balance as to the possibility of
"irreparable harm" favors the applicants.
MR. JUSTICE POWELL, Circuit Justice.
This is an application for a stay of the judgment of the United
States Court of Appeals for the Fifth Circuit, pending
consideration of a petition for certiorari. Applicants are
officials of Kleberg County, Tex., who have been ordered by the
United States District Court for the Southern District of Texas to
proceed immediately with procedures for the "preclearance" of a new
apportionment plan for county commissioner precincts under § 5 of
the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C.
This suit began in 1978 as a class action challenging the
boundary lines of the four county commissioner precincts in Kleberg
County. Plaintiffs claimed that these precincts, as drawn, violated
the one-person, one-vote principle and unconstitutionally diluted
the voting strength of Mexican-Americans. After a trial, the
District Court found that the precincts did violate the one-person,
one-vote principle, but ruled that plaintiffs had failed to meet
their burden of proof on the dilution claim.
Page 448 U. S. 1319
The District Court then directed defendants to submit a proposed
new apportionment plan. That plan was drawn by a university
professor selected by the County Commissioners and approved for
submission to the District Court by the Commissioners. The District
Court approved the plan and rejected an argument by plaintiffs that
preclearance under the Voting Rights Act was necessary, relying on
East Carroll Parish School Board v. Marshall, 424 U.
(1976) (per curiam). In East Carroll,
this Court stated that "court-ordered plans resulting from
equitable jurisdiction over adversary proceedings are not
controlled by § 5." Id.
at 424 U. S. 638
On appeal, the Fifth Circuit reversed in a per curiam opinion.
615 F.2d 1023 (1980). It relied on this Court's later decision in
Wise v. Lipscomb, 437 U. S. 535
(1978), for the proposition that plans drawn up or approved by a
legislative body are "legislative" plans even if submitted in
response to a court order. As a result, the Court of Appeals found
that the plan in this case is legislative, and concluded that it is
subject to the preclearance provisions of § 5. The court remanded
the case for appropriate action, and the District Court then
ordered applicants to begin the § 5 procedures "immediately." On
July 25, 1980, the Fifth Circuit denied a stay pending
consideration of a petition for a writ of certiorari.
The preclearance procedures at issue here require either an
action in the District Court for the District of Columbia for a
declaratory judgment that the new plan is not racially
discriminatory or submission of the plan to the Attorney General of
the United States, who may interpose an objection within 60 days.
42 U.S.C. § 1973c. See Allen v. State Board of Elections,
393 U. S. 544
393 U. S.
-550 (1969). Applicants will argue in their petition
for certiorari that they should not be required to follow these
procedures, because this apportionment plan was court-ordered and
was not the product
Page 448 U. S. 1320
of a legislative action. They argue in this application that
their petition is likely to be granted because the decisions of
this Court have left unsettled the principles that determine which
apportionment plans are essentially "legislative," as opposed to
"judicial," in nature. They further argue that a stay is necessary
in order to prevent their claim from becoming moot before it can be
In Wise v. Lipscomb, supra,
we faced the quest;on
whether a plan for the election of members of the City Council of
Dallas was judicial or legislative. The existing system of electing
members at large had been declared unconstitutional, and the city
had been given an opportunity by the court to produce a substitute
plan. Because the plan submitted by the City Council, and approved
by the District Court, included a provision for the election of
several council members at large, it was necessary to decide
whether the plan was invalid under East Carroll, supra,
which we held that judicially imposed plans should not, absent
special circumstances, include multimember districts.
The Court in Wise
decided that the Dallas plan was
legislative, rather than judicial, and therefore was exempt from
the higher level of scrutiny accorded to judicial plans. MR.
JUSTICE WHITE, in an opinion joined by MR. JUSTICE STEWART, viewed
the plan as one enacted by the City Council, emphasizing that, in
his view, the Council was exercising its lawful powers in so
acting. 437 U.S. at 437 U. S.
-547. MR. JUSTICE MARSHALL, in a dissent joined by
MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS, agreed that the power
of the legislative body under state law to enact the plan at issue
is an important factor, but disagreed about the powers possessed by
the City Council in that case. He concluded that the Council could
only have acted pursuant to a court order, and that the case was
therefore controlled by East Carroll, supra,
424 U. S. 663
n. 6, where we labeled a plan "judicial" partly because
Page 448 U. S. 1321
the legislative body had no authority to reapportion itself. 437
U.S. at 437 U. S.
-554. My opinion concurring in part and concurring in
the judgment, joined by the three remaining Justices, asserted that
assumptions about state law were "unnecessary," because the
"essential point is that the Dallas City Council exercised a
legislative judgment, reflecting the policy choices of the elected
representatives of the people, rather than the remedial directive
of a federal court."
at 437 U. S.
Arguably, it was this last approach that the Court of Appeals
followed in the present case. It determined that the plan was a
legislative one because it was approved for submission by the
Commissioners of Kleberg County. The Court of Appeals was
apparently unconcerned that the reapportionment might be outside
the Commissioners' legislative powers. [Footnote 1
] If so, it can be contended that the court was
following an approach that has been endorsed by only a minority of
Justices. Applicants also make a substantial argument that this
approach is inconsistent with the decision in East Carroll
as that case has been interpreted by the majority of this Court.
Page 448 U. S. 1322
It is fair to say that the opinions in East Carroll
Wise v. Lipscomb
fall considerably short of providing
clear guidance to the courts that initially address this difficult
issue. It would be helpful, therefore, for this Court to exercise
its responsibility to provide such guidance. It seems to me that
this case presents the opportunity.
I mention briefly the settled principles that govern the
granting of stays. Times-Picayune Publishing Corp. v.
Schulingkamp, 419 U. S. 1301
419 U. S.
(1974) (POWELL, J., in chambers); Graves v.
Barnes, 405 U. S. 1201
405 U. S.
-1204 (1972) (POWELL J., in chambers). In view of
the ambiguity of our precedents (to which I may have contributed),
I cannot say whether the possibility of reversal is significant. I
do think there is a "reasonable probability" that four Members of
the Court will consider the issue sufficiently meritorious -- and
the need for clarification sufficiently evident -- to warrant a
grant of certiorari. The applicants assert that, absent a stay,
they will be required immediately to expend substantial money on
preclearance procedures, and that this expenditure will be
irretrievable. They argue further that, without a stay, their
petition to this Court will become moot. The balance as to the
possibility of "irreparable harm" seems to favor the
I will therefore enter an order recalling the mandate and
staying the judgment of the United States Court of Appeals for the
Fifth Circuit pending disposition of the petition for
Under Tex.Rev.Civ.Stat.Ann., Art. 2.04(1) (Vernon Supp. 1979),
the Commissioners can only enact a reapportionment plan during
their July or August terms. See Wilson v. Weller,
S.W.2d 473 (Tex.Civ.App. 1948). The plan in this case was submitted
in November. Respondents contend, however, that the Commissioners
have an "inherent" power to reapportion their precincts when a
"vacuum" has been created by a court ruling that the existing
precincts are drawn unconstitutionally.
Indeed, this apparent inconsistency may have produced a conflict
within the Fifth Circuit on the issues raised here. In Marshall
582 F.2d 927 (1978) (en banc), cert.
442 U.S. 909 (1979), a case involving the same
litigation as East Carroll
but an entirely different plan,
the Fifth Circuit labeled that plan "court-ordered" partly because
the legislative body merely submitted it, rather than adopting it.
582 F.2d at 933-934. Applicants contend that the Commissioners
acted in a similarly limited fashion here.