*1 OF GENERAL TEXAS HILL, ATTORNEY STONE ET AL. May 12, 1975 January 14, Argued 1975 Decided No. 73-1723. *2 Court, J., opinion in which Bren- of the delivered the Marshall, J., JJ., joined. Rehnquist, Powell, and nan, White, Blackmun,. J., J., Burger, Stewart, dissenting opinion, in which filed a C. post, J., part in the consideration joined, p. took Douglas, 302. or decision the case. Kendall, M.
David Attorney First Assistant General On Texas, argued appellant. the cause for the brief Hill, se, John F. Attorney General, pro Larry L. were York, Mike Attorney General, former First Assistant Kobdish, Willatt and G. Charles Attorneys Assistant General.
Don Gladden argued for appellees. cause With Marvin him appellees on the brief for et Stone al. was Johndroe, Jr., Collins. S. G. appellees filed a brief for city of Fort et Worth al.* Justice Marshall opinion delivered the of the
Mr. Court.
This requires again case us to consider the con- once stitutionality of a restricting classification right vote in a local election.
Appellees, Worth, Tex., brought residents of Fort this action challenge city limiting state and laws County
* Edward W. Dunbar filed a brief for El Paso Junior College as amicus urging District curiae affirmance. McKibben, Briefs of amici curiae Jr., were filed James F. for city Corpus Christi; by Boykin Marshall III for William O. Harrison, Jr., al.; et Purcell, Manly Joe Mumford, W. Fred Rosenfeld,
H. and Harold B. city Judell for the of Phoenix al. et who persons bond elections to have franchise some or real, personal made taxation mixed, available A property. three-judge District Court held that this not serve state suffrage compelling restriction did and therefore Protection Equal interest violated Stovall, Stone Clause the Fourteenth Amendment. , Supp. (ND 1974). granted 377 F. Tex. We stay partial pending disposi- District order Court’s appeal. tion (1974). U. S. 963 We subse- quently probable noted jurisdiction. 419 U. S.
I The Texas provides municipal Constitution all *3 “to expenditure assump elections determine or money tion debt,” only pay who property those taxes on in the In city are Tex. 6, § to vote. 3. Const. Art. any directs in “for election held the addition, purpose issuing lending bonds or otherwise or credit, money expending or assuming debt,” franchise shall be limited to own tax qualified voters “who those able in property the . . district . . . . such election where is held,” “duly and who for have rendered tax the same 3a. impose ation.” The implementing § statutes same qualify voting for a requirements, adding resident of must holding district the election have “rendered”1 his for taxation the district
1 To “render” with tax for taxation means to list it taxing question. Property assessor-collector of the district reports for “rendered” taxation it or when either when owner the tax places it Tax- assessor-collector on the tax himself. rolls mixed, able real, personal property includes all and exemptions, $3,000 $250 limited such as and for homesteads furnishings. 8, Although household Tex. Const. Art. 1. state law § requires taxpayers to their property, render taxable all Tex. Rev. (1960 1974-1975), Civ. Arts. Supp. Stat. and there is no penal failing voluntarily. sanction for to do so election and that year, proper period during that he has done so. indicating he an affidavit sign must 1974- 5.03, 5.04, (1967 Supp. Tex. Elec. Code 5.07 §§ 1975). City provides further The Fort Worth Charter city they unless are author- that the shall not issue bonds pay taxes “qualified ized in an election of the voters who limits corporate situated within the City Worth, of Ft. of Fort Worth.” Charter of the c. 25, 19.§ Free in Kramer 1969, after our decisions Union
School District (1969), No. U. S. Cipriano Houma, v. City (1969), S. 701 U. Attorney Texas pro- General devised “dual box election cedure” to used all the local bond elections. be State’s Under this procedure, persons prop- all owning taxable erty rendered for taxation voted in one and all other box, registered voters separate cast ballots box. The results in both boxes were tabulated, issue would be passed only deemed to have if it was approved by majority vote both in the “renderers’ box” and in the aggregate of both This scheme en- boxes. sured that the bonds would be safe from challenge even if the state-law restrictions on the franchise were later held unconstitutional.
On April 11, 1972, of Fort Worth conducted *4 a tax bond election, using system the dual-box to author- ize the of bonds improve sale to city the transportation system city and to build a library. Since state eligi- the bility restrictions had previously been construed to re- quire only prospective that the voter render prop- some erty for even taxation, if he did actually not pay any tax on the property, Montgomery Independent School Dis- trict Martin, 464 S. W. (Tex. 2d 638 1971), all those who signed an affidavit indicating they had rendered some property permitted were to vote in the “renderers’ 29,000 participated box.” Of the voters who bond the election, 24,000 approximately voted as Tenderers and 5,000 transportation pro- as The nonrenderers. bond posal approved aggregate. in both boxes and in the was library bonds, however, The Al- were less well received. library though approved by the bonds were majority they all the were box, defeated in voters, the Tenderers’ and were therefore deemed not have been authorized. appellees, three of whom
The had voted as nonrende rers,2 then filed this action in the United States District Court for the Texas, claiming Northern District of partial persons the rendering disfranchisement of not for equal protection taxation denied them the A three-judge laws.3 convened; Court was District argument, judg heard on March it entered appellees. ment the The court declared the relevant provisions of Constitution, the Texas the Texas Election Code, and Fort Worth Charter unconstitutional they right “insofar condition the vote bond elec rendering tions citizens’ property for taxation.” Supp., Although F. at 1024. the court its ruled that de cree would not make invalid already author- bonds appellees, Of the five named three voted as nonrenderers They sought two as represent owners. persons all library class of who voted in the election in favor of the proper The bonds. District Court certified the class as under Fed. (b) (2). city Rule Gv. Proc. of Fort Worth and various officials, below, appellees who were defendants are listed as in this Court, they support appeal urging but have filed a brief reversal, subsequent appellees. and are included references to procedure The effect dual-box nonrenderers help issue, they help pass could defeat but could not it. If votes, Tenderers, produced majority added to the votes against bonds, issued,, the bonds would not be even if the Tend erers favored But opposed bonds, them. if Tenderers effect, they produced nonrenderers’ would be of votes even if an majority overall in favor of the bond issue. *5 the date of the held before any ized bond elections or count judgment, it ordered the defendants box, in the nonrenderers’ who had voted ballots of those franchise of the enjoined any future restriction and it who have rendered state elections to those for taxation. each judgment, in the judges concurred
While all three Thorn- separately. Judge panel wrote member of the be invalid Texas was berry scheme concluded that into two cause divided the otherwise voters that the and nonrenderers —and classifications —renderers render who did not disfranchisement those Judge Clause. Equal taxation violated Protection ground in the result Woodward concurred require was tantamount requirement which he concluded was im ownership, ment Harper Vir decision permissible under this Court’s Elections, (1966). Judge 383 U. ginia Board S. but be judgment, Brewster concurred thought by our decision the case was controlled cause he Kolodziejski, (1970), 399 U. S. City oj Phoenix v. franchise restricting the where we invalid a statute held real obligation in a bond election to general owners.
II Texas,4 argues that Attorney General of Appellant, voting question a into none of Court’s draws this cases eligibil election. The in this restriction the sort used restriction on the impose a wealth ity scheme does not appellant contends, franchise, exercise Attorney joined because Texas as a defendant General validity any municipal certify requires bond issue. law that he (1964 Supp. 1974-1975), 4398 Arts. Tex. 709d Civ. Stat. Rev.
295 classification create reasonable that does and should upheld be on that basis.
A In Kramer v. Free School Union District No. 395 S. 621 held that in an (1969), general U. we election of interest, restrictions on the franchise other residence, than citizenship promote must a in age, compelling state ap terest in order to survive constitutional attack. The pellant in Kramer New challenged York that a statute limited vote in school eligibility to local board elections persons in who or leased owned taxable real who district, school or children enrolled in had public expressed schools. in Kramer opinion We whether in might a State some circumstances limit “primarily election,5 franchise to those interested” in the but we impermissibly held that New York statute had many persons awith distinct direct interest excluded of board, decisions the school at the same while including time others with no in substantial interest school affairs. The fact that sup school district ported by a property tax did not mean that those subject to direct assessment felt the of effects the tax burden, and parents the inclusion of would exhaust persons the class of interested in the conduct of local school affairs. Salyer Land Tulare question We answered that Co. v. Water in
District, case, U. S. 719 In that we held water purpose acquiring, district created for storing, and distribut- ing agricultural purposes water constitutionally could have board of directors selected an election which votes were allo- according cated to the assessed value each voter’s land. Be- “special purpose cause its limited . disproportionate . . the id., effect of its activities as' a group,” landowners the Court held that the water district election was of sufficient “special single group interest” to a the franchise could consti- tutionally be denied others. Houma, (1969), U. S. Cipriano Louisiana statute
decided the we invalidated day, same bond elections revenue limiting the franchise in local Kramer, inAs “property district.6 taxpayers” of the under its classification prove had failed to substantially voting were all those excluded from fact to vote. permitted those less interested or affected than Id., fi intended to Cipriano were at 704. The bonds in utility city's improvement nance extension and utility *7 system. operation that the of a pointed We out nonproperty owners system property affects owners and among and since those not included the alike, they might well feel utility services, voters often use the through outstanding of revenue bonds the effect utility they required pay. be rates would to Kolodziejski, Phoenix Term,
The next in supra, ruled a we unconstitutional similar restric- in property taxpayers gen- tion of the franchise to real obligation bond issue. The property eral interests of nonproperty general obligation owners and in a owners issue, we held, sufficiently disparate bond were to not justify excluding owning no property. those real not, residents of the whether city, property owners or had a common in bond interest the facilities that issue would make available, they and would all be sub- stantially affected the outcome of the both election, in provided terms of the and obligations benefits in- curred. Under the Phoenix arrangement, noted we paid some the debt service would be out of reve- Louisiana, Texas, personal property as prop- as well as real erty subject taxation, to “property taxpayer” and a could person only include a personalty. practice The administrative only property, however, was to tax real so the effect was that reality “property taxpayer” property meant “real taxpayer.” See Stewart v. Parish Board, School Supp. 1172, (ED 310 F. 1173 n. 3 La.), aff’d, U. S. property receipts, nonproperty nues other than tax so directly owners be to some We would affected extent. added, even however, municipality where looks property servicing general tax obli- revenues gation bonds, the franchise be re- legitimately could stricted real property owners: may
“Property paid initially by taxes be owners, significant but a part burden ultimate year’s each tax on rental very likely will be borne the tenant rather than landlord since . . . will the landlord treat tax as expense normally business will be pass able to large part all or a of this on cost tenants in higher rent.” S., form of U. at 210. In addition, we noted that property taxes commercial normally would doing be treated as cost prices business would “be reflected of goods purchased by services nonproperty prop- owners and Id., erty owners alike.” 211. principle expressed
The basic in these cases is long question as the election in special not one of *8 interest, any classification restricting franchise grounds other than residence, age, citizenship and can- not stand unless the district or State can demonstrate the classification a compelling that serves state interest. Kramer, See Cipriano, 626-627; 395 U. S., S., 395 U. at 704. appellant’s
The claim that the Fort Worth election was special one of interest and thus outside the principles of Kramer case runs afoul of our decision in Kolodziejski, Phoenix supra. In the Phoenix casé, we expressly general stated that a obligation issue— bond even where the debt paid entirely service will be out of property taxes as in general Fort Worth —is a matter of interest, of Kramer apply to and that principles voters. registered among limiting eligibility classifications “ren that contentions alternative making “classification,” or creates no real requirement” dering upheld being as should be created that the classification the rationale appellant misconceives reasonable, since that Appellant argues Kramer and its successors. and taxation, be rendered for required all if he renders in a bond election anyone since can vote scheme how the Texas any property, no matter little, property.7 of wealth or discriminate on the basis does not held or however, have not intimated Our cases, election suspect; classifications are an property-based on the franchise of restrictions general interest, justification. stringent character must meet test on ren creates a classification based The Texas scheme not in effect those who have dering, and it disfranchises year for taxation in the rendered their Mere reasonableness will therefore election. created in this case. suffice to sustain classification
B justify render appellant sought The has State’s solely it extends ing requirement ground on the matter, practical tax assessment As a under Texas’ scheme of collection, requirement may in effect create a property-related Appellees’ informed us at classification. counsel Texas, argument Worth, like other oral Fort communities realty makes affirmative effort to tax other than personalty. Arg. business Tr. of are free to Oral 26-27. Residents personalty, apparently “render” other forms of but seldom this is Yudof, Property done. See Tax in Texas Under State and Fed- result, L. Rev. 889-890 As a Fort Law, Tex. eral realty automatically personalty those with business are Worth “renderers,” while to vote other voters must take the step voluntarily “rendering” somewhat unusual so, taxpayer does he has rendered taxation. When he affirms that *9 property, his and that the valuation of the is correct. all (1960). Stat. Arts. Rev. Civ. Tex. protection
some
who will bear the
owners,
retiring
city’s
burden of
bonded indebtedness.
direct
rejected
analysis
The Phoenix
this
case, however,
imposition
of costs on
owners. Even
“direct”
system
responsibility
under a
which the
retiring
directly
property taxpayers,
bonded indebtedness falls
on
community
all members of the
share in
in various
the cost
ways.
library
construction of a
Moreover,
likely
special
particular,
to be of
interest to a
well-defined
portion
Quite apart
of the electorate.
from the general
library
appellant’s
interest
con
election,
tention that
the rendering requirement
imposes no real
impediment
to participation itself undercuts the claim
purpose
it serves the
will
protecting those who
bear the burden of the
become,
If
can
anyone
debt obligations.
rendering property
to vote
of even
negligible value,
requirement
hardly
can
rendering
be said to select
according
magnitude
voters
to the
prospective
their
liability
city’s
for the
indebtedness.8
appellee'
The
officials
argue
qualification furthers another state interest:
it encour-
ages prospective voters to render
thereby helps
tax laws.
argu-
enforce
State’s
This
ment
is difficult to credit. The
of the franchise to
use
compel compliance
other,
objec-
independent state
questionable
any
tives is
context.
United States
See
Texas,
v.
Supp. 234,
(WD
Tex.), aff’d,
P.
253-254
(1966).
particularly
here, since to right the be given will an individual requirement, ing how matter no at any property renders all, if he vote vote right to solely to earn rendering Those trivial. minimal may render well in bond elections imposing without voting for qualify in order to value, liability. The render tax substantial themselves a upon any signifi unlikely to have thus seems ing requirement encouraging policy asserted state on the impact cant property.9 all of his to render person each erects requirement sum, In the Texas persons disfranchises impermissibly classification they have vote, solely because to qualified otherwise Phoenix case for taxation. some rendered v. Board McDonald Court’s decisions Appellant relies on this Rockefeller, (1969), Rosario v. Election, 394 U. S. created (1973), the classification in defense of 410 U. S. however, McDonald, issue in this In Texas law case. jails were in Illinois pretrial detainees was whether before the Court expressly Court unconstitutionally ballots. The denied absentee indicate that nothing in the record to there was noted that any impact appellants’ on the exercise challenged had Illinois statute Any S., at 807-809. classification right See 394 U. of their to vote. noted, vote, right the Court actually restraining the fundamental Rosario, upheld a scrutiny. the Court subject would be to close days party preference 30 requirement register a that a voter neutral participate general election in order to be in advance of the registration require- succeeding primary election. Because goal” “preservation “legitimate valid ment state served S., process,” 410 integrity of the electoral U. Court, imposed special because it no burden on class before id., held that time see at 759 n. the Court limitation Equal registration did not either the Clause or violate Protection By right First and Fourteenth Amendment of association. contrast, imposes the Texas scheme a restriction on the franchise preserving having perceptible purpose integrity or effect in instead, process; portion of the electoral excludes a of the electorate failing comply wholly independent policy. state establishes that Worth’s “special Fort election was not a interest” election, and the state proffered by- interests appellant and the officials fall far short of meeting the “compelling state interest” test consistently applied Kramer, Cipriano, and Phoenix.
Ill
In order to avoid
possibility
previous
of upsetting
bond
in
elections
State,
District Court declined
give
judgment.
retroactive effect to its
We have fol
prior
lowed the same
course
our
cases dealing with
voting classifications in
elections,
bond
Cipriano,
see
Phoenix,
S.,
706;
395 U.
at
U. S.,
399
at 213-
215, and we agree with the District Court’s deter
mination not to
its
give
ruling retroactive effect. Since
the portion of the District Court’s judgment invalidating
statutory
state constitutional and
provisions has been
in full
time,10
effect
that
since
and since some local bond
may
elections
subsequently have been
in reli
conducted
ance
judgment,
on that
we hold that the District Court’s
ruling
apply only
should-
to those bond authorization
that
elections
were not final on the date of the District
judgment.
jurisdictions
Court’s
As
may
to other
have restrictive voting classifications similar to those in
Texas,11we hold that our decision should not apply where
stay
partial
judgment
granted
of the District Court’s
was
judgment
prohibited
to the extent
had
below
the use
procedure.
of the dual-box election
Affirmed. Douglas consideration part Mr. took Justice this decision of case. or The Chief Jus- with whom Rehnquist,
Mr. Justice dissenting. join, tice and Mr. Justice Stewart general vote in restricts the The Texas Constitution taxable those who render elections to obligation bond Art. Tex. Const. taxing with local officials. owned or mixed real, personal, All § 3a. under state is taxable any citizen of the State Arts. 8, 1; Tex. Rev. Civ. Stat. § Tex. Const. Art. law. citi- 1974-1975). And all (1960 Supp. all by law to render such required are zens the State yearly local officials on taxing taxable *12 rolls. Tex. it be added local tax basis in order that (1960 7189 7151, 7152, Arts. 7145, 7153, Rev. Civ Stat. Supp. 1974-1975). rendering voting is satisfied requirement though even any single property, of item of listing purely worth, taxing of nominal with officials and provided polling places of affidavit completion an any which the description single property a of item of Tex. 5.03 et properly § rendered. Elec. Code voter has Montgomery Inde- seq. (1967 Supp. 1974-1975); Martin, v. pendent 638, 464 W. 2d School District S. (Tex. Ainsworth, Dubose v. 139 S. W. 2d 1971); 640 (Tex. App. 1940). immedi- 307, Rendering 308 Civ. (1970), Wyoming 204, 11 Nevada and utilized a dual-box 213 n. procedure Texas’, proce- election much like but in both cases that 1971, 49; Wyo. has been abandoned. See Nev. Laws Laws dure c. 1973, c. 251. any
ately
property
before the election of
item of
qualifies,
though untimely
rendering
under the
Mar
statutes,
even
Newman,
v.
kowsky
449-450,
Tex.
136 S.
2d
W.
(1940), and the
adequate
absence of
facilities
rendering
for the
of
eliminates
rendition
Jordan,
requirement. Hanson
Not Texas Court Mont- gomery Independent Martin, School supra, District v. upheld qualification: the rendering qualifications ownership oter under Texas “[V]
. constitutional statutory provisions above, stated interpreted our are decisions, so universal as no impediment any to constitute elector who really desires to vote ain bond election. A voter if qualified he renders kind any value, and he actually need paid not have tax. One willing impose
”... who is to vote for and . tax on the willing another should be
to assume his distributive share burden. . . .
“. . . To allow some owners to vote kind of an and at election, the same time permit them to avoid their fair share of the resulting *13 obligation, preferential would confer rights.” 464 2d,W. S. at 640-642. in
Appellees the instant case have not our drawn at- totally propertyless to a tention citizen of Fort Worth, poorer Diogenes, than whose total lack ownership pre- 304 require- complying him from
eludes in the instent class deprived Instead, alleged ment. obligation legal who violated case consists of those any property render choosing not to law, under state other- motive, or tax-avoidance carelessness, reason protection equal alleged deprivation wise. And the failure by their caused lies self-disfranchisement property. to render readily facilities utilize available Equal under by this Court laws considered Since subject to propositions are not abstract Protection Clause invalidates equality which requirement of disembodied circumstances examination of the classifications without Texas, Tigner v. 141, 147 310 U. S. surrounding them, passing upon gov- exception we have without (1940), voting looked to requirements affecting ernmental challenged denying equal classification character affected it. protection and the individual interests Rhodes, Dunn v. (1968); U. 30 Williams 23, v. 393 S. Blumstein, (1972). prior And our 330, 405 U. S. 336 335, scrutiny trig- held that under this Clause is cases have appreciable where restrictions have a real and gered Mc- ability to exercise the franchise. impact See Election, Donald Board 802, v. 394 S. 807-808 U. 15, Kramer v. Union Free School No. District (1969); Lance, Gordon 6 621, 626-627, (1969); 395 U. n. v. S. Carter, Bullock (1971); 403 U. v. U. S. S. Rockefeller, In Rosario (1973), 410 U. we S. upheld registration requirement New York requiring registration party pri- in a months in advance of its mary prerequisite participation as a primary, stating: petitioners’ accept cannot contention.
“We they rely apposite of the cases on which None the situation here. each of those the State cases, *14 totally denied the particular electoral franchise to a class residents, and there was in way which the members of class could have made themselves . . . vote. Section 186 New York’s Law, however, quite Election different. It did absolutely not disenfranchise the to which the class petitioners belong newly registered voters .... —
Eather, merely imposed statute a time deadline enrollment, on their they which had to meet participate order to primary. the next . . . The petitioners say do why they not did not prior enroll date; cutoff it however, they is clear that could have so, done but chose not to. if Hence, plight their can be characterized as disenfranchise- all, ment at not by 186, was § caused but their own failure timely steps take to effect Id., enrollment.” at 757-758.
Even the four dissenting Members of the Court in that case would have required a “serious burden or infringe- on the right ment” to vote as a prerequisite to the estab- lishment of a constitutional Id., violation. at 767 (Pow- joined by ell, J., and Marshall, Douglas, Brennan, JJ., id., dissenting). See also at 765.
In the appellees immediate case, and the class of non- they represent renderers easily could have complied with qualification, imposed as a pre- requisite for but voting duty necessary also as legal orderly operation to the of a voluntary self-assessment taxing system. burden imposed qualification compliance was de .minimis and universally easy. Despite this, Court, inquiry without into im- pact of qualification the Texas on appellees’ ability to vote, concludes that the Texas scheme is unconstitu- Ante, tional. 306-301.
As might expected be when dealing provisions arguments abstract, the theoretical law of state constitutionality support both advanced *15 constitution- their here, against involved provisions that contends ways. The State both to cut ality, tend rendering with the anyone complied could have because minimal. is burden on the the franchise qualification, concluding that this contention disposes of The Court must serve requirement rendering in the such event the that also contends policy. The State valid state policy of the state does serve requirement the tax property on personal of the amount increasing the in will be taxed to retire turn rolls, which of election as a result the indebtedness incurred bonded is contention response The this in Court’s question. unreasonably requirement if be the case, this is dialogue franchise. This constitutional burdens the may part be traced edifying, less than somewhat Free School dichotomy by Kramer Union to the drawn 15, in an supra, voting qualifications No. where all District ante, interest,” were herded of general “election age, dealing “residence, Those categories. into two imprimatur, citizenship,” received the Court’s ibid., scrutiny” applied to be to other the “strict test was while judicially of created clas- The basis this requirements. scarcely a “rational basis” sification would itself survive But by any as it is of our decisions. test, unexplained Kramer on own no sound reason taking terms, even its applying for it to the situation before us is advanced now. ante, at 300 n. our de- distinguishes,
The Court York grounds cision in Rosario on' the New involved in unlike registration requirement case, rendering qualification elections, the Texas “ of elec- ‘preserving] integrity directed toward ” process.’ toral distinction is a matter, the offered As a factual by to be served purpose sought one. The doubtful in Rosario was requirement examined registration party lines crossing prevention “raiding”: outcome in order to affect the party of one members party. political of another primary election instant challenge under rendering qualification violate who part prevent citizens designed case is by totally avoiding portion obligations legal a bond resulting from obligations of their fair share influ- may from election, be, however small that share imposition which process results encing the process If of the electoral integrity such obligations. unwilling to as- by allowing citizens, who are violated *16 membership, to vote responsibilities party sume the of how it it is difficult to understand party primaries, by allowing unwilling who citizens, are less violated occurring from obligations share of the assume their fair to vote in such an election. election, a bond at ante, appellees 298 indicates, As at n. the Court requirement rendering asserted argument oral classification property-related functions as practice virtually realty personalty up and business since make in Fort taxation property actually subject all of the appellees also However, Worth. conceded case. record in this support in the was without allegation does extent that the record Arg. Tr. of 31. To the Oral of the rendition appellees’ assertion, shows speak to in Fort Worth personal property of substantial amounts While 81-84. App. 68, generally. and in the State below indicated panel three-judge one member of the operated rendering requirement suspicion his owners, non-real-property exclusion of de facto disagreement. panel indicated his member of the another (cid:127) of Thorn- (opinion Supp. 377 F. Compare id., J., Woodward, (opinion berry, J.), question serious specially concurring). light absence of evidence disagreement raised this I judgment would vacate the resolving record it, determination below remand this case factual requirement as administered whether dis- practical impermissibly Texas has effect of non- franchising groups identifiable such as voters thereby genuine owners real-property constitutes Phoenix burden on the franchise. Cf. Kolodziejski, U. S.