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UNITED STATES v. TEXAS

February 16, 1978

UNITED STATES OF AMERICA, Plaintiff
v.
STATE OF TEXAS; MARK WHITE, Secretary of State of Texas; JOHN HILL, Attorney General of Texas; WALLER COUNTY, TEXAS; LEROY SYMM, Tax Assessor-Collector of Waller County, Texas, Defendants


Prior Litigation, Legislation and Administrative Action Relating to Voter Rights of Prairie View Students

The case which controls this controversy is Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973) (hereinafter " Whatley "). That case holds that the statutory presumption of non-residency contained in Article 5.08(k) of the Texas Election Code is unconstitutional. Much of the previous litigation relating to voting rights in Waller County is rendered inapplicable by Whatley ; however, that prior litigation, in the interest of completeness, should be reviewed.

 The two previous cases in which the courts have grappled with the problem of Prairie View A & M University (hereinafter "Prairie View") student voters are Wilson v. Symm, 341 F. Supp. 8 (S.D. Tx. 1972) and Ballas v. Symm, 351 F. Supp. 876 (SD Tx 1972); 494 F.2d 1167 (5th Cir. 1974) (hereinafter " Wilson " and " Ballas ").

  Wilson was an effort by five Prairie View students to compel Tax Assessor-Collector Symm to register them to vote. The case was never certified as a class action pursuant to Rule 23, FED. R. CIV. PROC. Wilson was decided before Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), and the court's holding in Wilson is predicated upon the court's conclusion (later proved incorrect by Whatley) that Article 5.08(k) was constitutional. The court held that the function of the challenged questionnaire was to provide student applicants a means by which to overcome a statutory presumption of non-residency. Since Wilson v. Symm was predicated upon an incorrect assumption concerning the constitutionality of Article 5.08(k), it now has limited authoritative force.

 Wilson was decided in the spring of 1972. In the fall of that same year, the Honorable James Noel decided the case of Ballas v. Symm, 351 F. Supp. 876 (S.D. Tx. 1972). The trial court decision in Ballas, like the decision in Wilson, was decided before the appellate decision in Whatley, and was similarly predicated upon an assumption that the statutory presumption of 5.08(k) was constitutional.

 Ballas, a white student at Prairie View, complained of Symm's practice of requiring students to complete the questionnaire attached to this opinion as Exhibit A. The Ballas case was never certified as a class action pursuant to Rule 23. The court specifically declined (351 F. Supp. at 880) to certify the case as a class action.

 The trial court's opinion in Ballas v. Symm, 351 F. Supp. 876, at 877, discusses the fact that on October 2, 1972, the United States District Court for the Eastern District of Texas (Judge Wayne Justice) decided Whatley, holding at the trial court level that the statutory presumption contained in Article 5.08(k) was unconstitutional. The opinion also discusses the fact that on October 3, 1972, the Chief Election Officer of the State of Texas, Secretary of State, Robert Bullock, issued a bulletin to all voting registrars, advising that:

 
"No county registrar may require any affidavits or questionnaire in addition to the information required on the application for a voter registration certificate."

 The trial court in Ballas held that this bulletin and Bullock's acceptance of Judge Justice's decision in Whatley was:

 
"Utterly lacking in candor or credibility; legally incorrect; misleading; in excess of his statutory authority, and irrelevant." 351 F. Supp. at 888.

 Subsequent to Judge Noel's decision in Ballas in November of 1972, the Fifth Circuit decided Whatley in August of 1973, holding that Bullock's legal position, as stated in his memorandum, and Judge Justice's trial decision in Whatley were in fact legally correct and that Article 5.08(k) was unconstitutional.

 In 1975, in an action which the State of Texas here contends was taken in response to Judge Noel's criticism of Secretary of State Bullock in Ballas, the 64th Legislature of the State of Texas passed a statute, amending the Texas Election Code. The Texas Election Code, as modified by the 1975 amendments reads:

 
"Art. 1.03. Secretary of State as Chief Election Officer.
 
"Subdivision 1. The Secretary of State shall be the Chief Election officer of this state, and it shall be his responsibility to obtain and maintain uniformity in the application, operation and interpretation of the election laws. In carrying out this responsibility, he shall cause to be prepared and distributed to each . . . county tax assessor-collector, . . . detailed and comprehensive written directives and instructions relating to and based upon the election laws as they apply to elections, registration of electors, and voting procedures which by law are under the direction and control of each such respective officer. Such directives and instructions shall include sample forms of ballots, papers, documents, records and other materials and supplies required by such election laws. He shall assist and advise all election officers of the state with regard to the application, operation and interpretation of the election laws.
 
"Subdivision 2. At least 30 days before each general election, the Secretary of State shall prescribe forms of all blanks necessary under this Code, and shall furnish same to each county clerk.
 
. . .
 
"Art. 5.02. Qualification and Requirements for Voting.
 
. . .
 
(b) All citizens of this state who are otherwise qualified by law to vote at any election of this state or any district, county, municipality, or other political subdivision shall be entitled and allowed to vote at all such elections. The Secretary of State shall, by directive, implement the policies stated herein throughout the elective procedures and policies by or under authority of this state. Enforcement of any directive of the Secretary of State pursuant to this section may be by injunction obtained by the Attorney General."

 Although there is no way to determine the legislative history of an Act of the Texas Legislature with certainty, the State of Texas contends (and it seems reasonable to assume) that these statutory changes were enacted in reaction to Judge Noel's statements critical of Bullock in Ballas.

 The Fifth Circuit Court of Appeals in Ballas v. Symm, 494 F.2d 1167 (5th Cir. 1974) affirmed the trial court decision, emphasizing, however, two significant facts:

 
1. The use of the form itself did not violate the federal Constitution because the determination of whether or not an applicant was a voter was not made on the basis of the form alone, but on the contrary, was made after a hearing; and
 
2. There was no proof that the questionnaire itself was used as a device to prevent legal residents from voting.

 The Fifth Circuit opinion by Circuit Judge Roney is drawn with precision and decides a very narrow issue, as stated at 494 F.2d at 1168:

 
"The precise issue which this suit seeks to determine is whether use of a questionnaire to assist in residence determination by a voter registrar is a violation of the 14th Amendment Equal Protection Clause, and the amended 1964 Voting Rights Act because only some voter applicants, but not all, were required to complete the questionnaire."

 The Fifth Circuit, as did the trial court, emphasized that the case was not a class action and not properly regarded as a class action. (See 494 F.2d at 1169).

 The case at bar was filed on October 14, 1976 and on March 15, 1977, this court, in an unpublished Memorandum Opinion, overruled defendant Symm's motion for summary judgment. Symm's motion for summary judgment was predicated upon a theory that the Fifth Circuit opinion in Ballas was res judicata and barred the United States from relitigating the controversy relating to Waller County voting rights. The court held that res judicata was not applicable because of lack of identity of parties and because the cause of action asserted by the Government herein differs from that asserted by Ballas. In reaching its conclusion, the court relied upon Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977); Black Voters v. McDonough, 421 F. Supp. 165 (DC Mass 1976). This court in its opinion of March 15, 1977, however, decided that the doctrine of abstention was applicable. This court's decision to abstain was reversed 15 days later in a one paragraph opinion. Thereafter, the factual record which is discussed below was developed in a series of hearings.

 Pleadings and Assertions of the Present Parties

 The complaint of the United States alleges that defendant Symm, by virtue of certain practices, including the use of a unique form, has abridged the right of Prairie View dormitory residents to vote in violation of their rights under the 14th, 15th and 26th Amendments to the Constitution of the United States. In oral argument, the United States has consistently contended that its cause of action is considerably broader than the cause asserted in Ballas, supra, in that the United States does not object to the use of the Symm form per se, but contends that the form is merely a part of a more pervasive pattern of conduct which has the effect and the intent of depriving dormitory students at Prairie View of their rights under the 14th, 15th and 26th Amendments.

 The claims of the United States are asserted against Symm, the County Commissioners of Waller County, the State of Texas, Mark White, Secretary of State of the State of Texas, and John Hill, Attorney General of the State of Texas.

 Hill and White answer by alleging that they have done everything within their power to guarantee the dormitory students of Prairie View their rights under the 14th, 15th and 26th Amendments and also assert that the use of the Symm questionnaire has had the practical effect of discouraging applicants for registration from completing the registration process. John Hill also asserts a cross-claim against Leroy Symm, stating that on September 1, 1977, the Secretary of State adopted Emergency Rule 004.30.05.313 prohibiting the use of questionnaires of the type employed by Symm. John Hill asserts that under the Texas Election Code, the Secretary of State had authority to issue this Emergency Rule, and prays that this court enjoin Symm from continuing to use the questionnaire contrary to the directions of the Emergency Rule adopted by the Secretary of State.

 In answer to the cross claims asserted by White and Hill, Symm has filed a cross-claim against White asserting that White's Emergency Rule 004.30.05.313 is contrary to the laws of the State of Texas and in excess of the legal authority of the Secretary of State, and requesting this court to enter a Declaratory Judgment finding that White had no authority to issue (1) Emergency Rule 004.30.05.313 and (2) a letter of September 1, 1977 to Mr. Symm prohibiting Symm from continuing to use any voter registration procedure which required an applicant to provide any written information not required by Article 5.13b, subdivision 1, of the Texas Election Code.

 In oral argument, counsel for Symm requested the court to invoke its pendent or ancillary jurisdiction for the purpose of entering a Declaratory Judgment to the effect that White has no authority to issue the Emergency Rule and the letter in controversy.

 EVIDENCE IN PRESENT CASE

 Testimony of Prairie View Students and Administrators

 Sidney Hicks is a full time student at Prairie View. He resides in the dormitory and is active in student affairs. Before commencing college, he lived in Navarro County, Texas.

 Students at Prairie View commenced their efforts to vote in Waller County in 1966. The most recent drive to encourage students to vote was in March of 1976. In March of 1976, Mark White, the Secretary of State, and a number of his deputies visited the campus to assist students to register and vote. Hicks believes that White's staff was extremely helpful, but he cannot testify that White did everything possible to aid the students in their desire to register and vote in Waller County.

 During the drive to register students in the spring of 1976, Hicks, accompanied by others, visited Mr. Symm to discuss with him the desire of many Prairie View students to register and vote in Waller County, and their belief that they were legally entitled to do so. Symm explained to Hicks and his companions that allowing students to register and vote would not be fair to permanent residents of Waller County who had devoted their entire lives to the county and who would be present in the county long after the students were gone. Symm further explained that as he viewed the matter, students and military personnel fell into the same category and neither were entitled to be routinely registered on the same basis or by the same procedures as "permanent" residents.

 In an effort to register and vote in Waller County, Hicks filled out the Symm questionnaire. He stated in the questionnaire that he was a resident of Prairie View, lived in the dormitories, was a full time student, returned to his parents' home in Nacogdoches on holidays and in the summers, spent approximately 75% of his time at Prairie View, and regarded Prairie View as his residence while he was pursuing his studies. He was not allowed to register in Waller County and in the 1976 election was able to vote only by driving approximately 300 miles to his parents' home in Navarro County.

 Hicks, throughout, has been aware that he and other students may have a legal right to request federal registrars to come to Waller County to assist in the registration of students. He states that he and other students have refrained from pursuing this remedy because they did not wish to create hard feelings, hoped to create a feeling of amity in Waller County, and to make Waller County the best county in the state.

 Hicks testified without equivocation that dormitory students at Prairie View were simply not allowed to register in Waller County.

 Hicks testified that during the voter registration drive of 1976, he, through the student organization in which he was active, kept detailed records concerning the number of applications to vote by students. He testified that over 1,000 application cards were forwarded to Mr. Symm. In one of his conferences with Hicks, Symm told Hicks that only 700 of these were received. Only 27 students were registered to vote, and none of those 27 were dormitory students. All of the 27 were either Waller County natives or were married students.

 Three other Prairie View students testified. All testified that they were dormitory residents, full time students, and had no definite intention concerning returning to the counties of their parents' homes when they completed their studies. All testified that they had filled out Symm's form but had not been allowed to register and vote. One of them had been allowed to register and vote, after refusal by Mr. Symm, in the county of his parents' residence. One other had not been successful in registering in the county of his parents' residence, and was not able to vote in the 1976 presidential election.

 Mr. C. A. Thomas, the Registrar of Prairie View A & M University, testified that undergraduates from outside Waller County were required to live in the dormitory when dormitory space was available; that normally the dormitories had space for all students; that Prairie View freshmen were normally in the 17-19 age bracket; that all dormitory students were black; and that as of October 1976 there was a total of 2,918 students living in the dormitories.

 Testimony of University of Texas Students and Registrars from other Counties

 Students from the University of Texas testified that in Travis County students were routinely registered like other voters, simply by filling out the state prescribed registration form and furnishing the information there, and were not subjected to further or special inquiry.

 The United States introduced in evidence the testimony of 70 registrars of voters, located in virtually every Texas county containing an institution of higher learning. None of the registrars of the 70 other Texas counties containing institutions of higher learning follows Mr. Symm's procedure; none applies the presumption contained in Article 5.08(k) and declared unconstitutional in Whatley ; and none subjects students to any more rigorous scrutiny than other applicants for voting. All feel that they are applying the law of the state properly. All state that they would not register a potential applicant, if they knew he was not a resident of the county, but that they do not have the personnel or manpower to conduct detailed inquiries with reference to each applicant.

 Testimony of Representatives from Office of Secretary of State

 Mark White, Secretary of State of the State of Texas, and Leroy Beck, a deputy Secretary of State, testified that during the period from February, 1976 until October, 1976, Mr. White or his deputies made a total of ten visits to the Prairie View campus for the purpose of educating students concerning their rights and attempting to discuss the Waller County situation with Mr. Symm.

 White testified that he visited Symm and explained to him that Article 5.08(k) had been declared unconstitutional in Whatley. White also testified that he and his deputies visited Prairie View campus on numerous occasions, attempting to explain the law to students, and attempting to assist students to register in whatever county the student felt was in fact his residence.

 White testified that he told students that they could not automatically be registered where they were students but were required to establish residence in the place where they wished to vote.

 White also testified that in September, 1977, he issued the following directive:

 
Suffrage
 
Use of Questionnaires or other
 
Written Information in
 
Qualifying Registrants
 
004.30.05.313
 
The Secretary of State has adopted Emergency Rule 004.30.05.313. The rule states that no questionnaire or additional information may be required of an applicant who has properly completed a voter registration application. The rule is necessary to meet administrative problems concerning voter registration for the November 8, 1977 Constitutional Amendment Election, and for this reason is adopted as an emergency rule.
 
This emergency rule is adopted under the authority of Articles 1.03, 5.02(b), and 5.13a, Vernon's Texas Election Code.
 
.313. No questionnaire or additional written information shall be required prior to the registration of any applicant for voter registration who has properly completed a voter registration form which has been prescribed by the Secretary of State.
 
Issued at Austin, Texas, on September 1, 1977.
 
/s/ MARK WHITE
 
Secretary of State

 Testimony of Leroy Symm

 Mr. Symm was first elected Tax Assessor-Collector of Waller County in 1956 and has served continuously since that time.

 Commencing about 1966, there were efforts by persons whom Mr. Symm regards to be non-residents to vote, and at that time he instituted the procedure of having each person whose good faith residence he questioned, complete an affidavit. There was some objection to these affidavits, and consequently in about 1970, he ceased the use of the affidavit and instead started to use the "Questionnaire," a copy of which is attached to this opinion as Exhibit A (hereinafter the "questionnaire").

 One of the reasons for Symm's use of the questionnaire is his belief that Article 5.08(k) of the Election Code is applicable. Symm stated that he had read in the newspaper that an opinion from some court declared Article 5.08(k) unconstitutional, but that he did not change his practices after receiving this information and that he, himself, in making residency determinations, still applies the presumption set forth in Article 5.08(k) and instructs his deputies to do the same. His testimony in this connection is confirmed by the testimony of his deputies, who state that they also, by virtue of instructions from Symm, apply the presumption decreed in Article 5.08(k).

 Mr. Symm, in his deposition taken on January 16, 1978, testified definitely, without equivocation, in response to numerous questions, that he still applies the presumption contained in Article 5.08(k). At the hearing held before this court on January 31, 1978, he forthrightly and candidly repeated this testimony.

 Symm's basic procedure is as follows: A very large number of persons who apply to register to vote are personally known to Symm or his deputies as being residents of Waller County. These persons are routinely registered, upon filling out the state form, without further inquiry. A second category of persons exists who are also registered routinely and without further delay. This second category consists of persons who are not personally known to Symm or his deputies as residents of Waller County, but who are listed on the tax rolls as owning property in Waller County and whose address on the tax rolls shows an address in Waller County. A third category consists of those who do not fit within either of the above categories, and those persons are issued the questionnaire which is attached to this opinion as Exhibit A.

 Upon examining the questionnaire, Symm either registers the persons as voters, or gives them notice that a hearing has been set to hear evidence and make a determination as to their residency. Experience demonstrates that a very high percentage of the persons for whom hearings are set do not appear, and that a majority of the persons who appear for hearings are not registered.

 With reference to the third category (i.e., non-property owners not known to Symm or his deputies), Mr. Symm, in making his residency determination, does not rely upon a single factor, but instead, considers the entire factual background. In this connection he considers the marital status of the applicant, the question of whether he is employed in Waller County, the question of whether he has family in the county, the question of whether he is a Waller County native, and the question of whether or not the place where he lives is a permanent address, as distinguished from a temporary residence. He states that generally students are not regarded by him as residents unless they do something to qualify as permanent residents, such as marrying and living with their spouse or obtaining a promise of a job in Waller County when they complete school. He does not regard a dormitory room as a permanent residence, and regards a permanent residence only as a place with a refrigerator, stove and furniture.

 Mr. Symm has no information concerning procedures followed in other counties and no interest in those procedures.

 With reference to the voter registration drive in 1976, Mr. Symm received 898 applications for voter registration which bore a permanent mailing address at Prairie View, Texas. Of these 898 applications, 79 were registered as voters on the basis of Symm's personal acquaintance and knowledge that the applicants were good faith residents of Waller County. Thirteen of these 898 were registered on the basis of examination of ad valorem tax rolls. 101 applicants were challenged and hearings set. Of the 898, 545 were requested to complete the questionnaire by certified or registered mail. 209 of the Symm mailings (which requested the addressees to fill out his questionnaire) were returned "refused" or "unclaimed." 295 of the applicants received the questionnaire but did not return it to Symm's office. 78 of the applicants completed the questionnaire and 25 of these were registered as voters without a hearing on the basis of the total contents of the questionnaire. 238 notices of hearing were sent wherein the applicants did not appear for the hearing. Thirty applicants who were sent notices of hearing appeared, and ten were registered as good faith voters after a hearing.

 In summary, of 545 potential voters who were sent the questionnaire, a total of 35 were registered as voters.

 Mr. Symm believes that students and servicemen fall within the same category, and that neither are residents, as a general rule, of the place where they are stationed or attending school, and in making this determination of residency, he applies this assumption and the Article 5.08(k) presumption.

 Symm testifies that a number of the questions on his questionnaire are not really very significant in enabling him to make a determination concerning residence. For example, the length of time a student has been at Prairie View, the length of time he has resided in Texas, and the question of whether or not he is employed, are of no particular significance; however, the question concerning property ownership is very significant, as is the question concerning whether the student has been promised a job in Waller County or intends to reside in Waller County "indefinitely." Symm agrees that "indefinite" is an indefinite word, but it is inferable from his testimony that he attempts to make a determination as to whether or not a student has an intent and a reasonable expectation of remaining permanently in Waller County upon completion of his studies. In this connection, Symm emphasizes that very few students continue to reside in Waller County upon graduation because of limited job opportunities and supports this view by reference to alumni statistics revealing that only about 2% of Prairie View alumni reside in Waller County.

 The question concerning whether or not an applicant has an intent to remain "indefinitely" in Waller County is a question which he asks only of those who are required to fill out the questionnaire. He does not ask persons with jobs in Waller County whether they intend to remain in the county "indefinitely."

 Students at Prairie View whose parents live in Waller County are treated differently from other students. These Prairie View students, the children of Waller County natives, are registered without question. In addition, married students, even if they reside in the dorms with their spouses, would be routinely registered, but not single students.

 Tests of Symm's Perception of Non-Discriminatory Use of Questionnaire

 Both the State of Texas and the Commissioners of Waller County agree that Mr. Symm sincerely perceives that his use of the questionnaire is non-discriminatory and that it is issued only to persons whom Symm does not know personally or who do not appear as property owners on the tax rolls of Waller County. This perceived assumption was accepted by both trial and appellate courts as having been established conclusively on the basis of the record ...


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