*2
these covenants
strictive covenants until
KENNEDY,
and
Before BARNES
Cir
by the
were
unconstitutional
Su-
declared
VOORHEES,
Judges,
cuit
District
Kraemer,
Shelley
preme
in 1948 in
Judge.*
836,
This is an granting geographically The into divided summary judgment separate motion for tract 3202 made communities. Census defendants, who once of the which as barrio 37% members is known contains council, However, City Mayor, city population. total Fernando, population San California. tract contains 80.1% of higher Spanish surnames. The tract has a plain- district court found that woman, density, per fewer more children tiffs, members of the San Fernando Mexi- graduates, higher unemploy- high school community, brought can-American who ment, and fami- more low income families class action under 42 U.S.C. had § level, poverty lies than the rest of the below failed to establish that the short, city. geographical- In barrio scheme used Fernando to ly community organized which is distinct elect its council was unconstitutional along racial lines. Fourteenth, Fifteenth, under Nine- teenth, comprise Twenty-sixth Although Amendments to Mexican-Americans (1970 census), they population United 48.9% the States Constitution. * which, read, Voorhees, fairly Judge, adopt 1. We Honorable S. District facts those Donald Washington, sitting by supportive appellants’ position. Western District of des- are most ignation. registered comprised only allege 28.7% the vot- Plaintiffs also the city is not Voting appears ers in 1972. to follow responsive racial to the needs Mexican- lines, that is members the white commu- specific American As exam- nity vote white candidates while mem- ples Newville-Meyer General Plan community bers the Mexican-American expanded which would have a street in the *3 vote for Mexican-American candidates. and, barrio so the residents felt damaged of city Neither members the nor barrio; integrity” the “residential of mayor have in lived the barrio for the ten high-rise apartment complex proposed by years prior of to the institution this suit. city which would have forced in- low come Mexican-Americans from the city, and During the certain 1972 elections mem- city place stoplight the failure of the to community bers Mexican-American a street intersection in the located barrio subjected were by police. to harassment despite many the fact accidents had Specifically, poll certain Mexican-American occurred at the intersection. by police watchers were followed to places questioned polling different and in- discriminatory Plaintiffs also state that tensively despite the poll fact campaign tactics were used elections in right polls watchers had a to be at strong which there were Mexican-American knowledge were operating with candidates. In of they quote this addition, city private clerk. In homes from a 1954 appeared editorial which polling white citizens are often used as allege They San Fernando Sun. article places: 1972, 5 polling places out of 15 Aranda, which attacked Jose a Mexican- 1970, buildings; were located in 7 public candidacy, racially American’s oriented. polling places out of 13 were located The article stated: 1964, public buildings; and in out of “For the record ... on June polling places public were located in build- (together JOSE ARANDA with Lee ings. The private homes which were used Ward, Richardson, Dotson, Sam Gilbert invariably Spanish-surnamed were Anderson), Robert Martinez and John percentage Spanish- households. The signed the official ‘notice to of intention persons surnamed participating in the me- recall’ ‘Herb’ Martin . . . one operating chanics of the election was also the finest city councilmen we have ever low. In 1976 only inspectors 6% of the had. of the judges Spanish 13% had surnames. “For record . . JOSE ARAN- . Mexican-Americans sparsely were also DA president was the of the so called represented city on 18 commissions. None League’ which ‘Civil Betterment backed city commissions had 50% Mexican- Smith, Schofield and Padilla membership. American Over the 10 years protection of tried wreck the prior suit, the institution of this 6 of the published civil service . . . which Spanish-surnamed commissions had no ” the ‘Bulletin.’ appointees Planning and the Commission Corona, Margarito, In Richard Jess only had 3 members who were barrio resi- were the Mexican-Amer- and Alfred Bernal during dents years. those ten The follow- ican for the council. At candidates ing commissions had from Span- 6% 18% registration voter time an extensive membership: ish-surnamed Citizens Com- drive was initiated the Mexican-Ameri- Redevelopment, mittee on Community Cul- drive, can As a result House, tural Development, Lopez Personnel Board, Spanish were surnamed. all voters Planning Steering Commission and 28.7% election, clerk prior Just Committee —Recreation Park Issue. The city employed concerning alleged Spanish-surnamed persons issued statements voter registration irregularities. contrast to 92 whites and incumbent the vast majority Spanish-surnamed mayor press persons then issued release which paid employees. lower he stated: take is- present will themselves and barrio an en- city election offers our
“Obviously statement. sue with the any organized outside ticing target operations for a base of group who needs II. ISSUES I believe activism. form of
their
trend where-
of a State-wide
part
it to
large”
“at
election method
1. Does the
wrest con-
attempting to
by activists are
in elect-
of San Fernando
used
governments in Cali-
many city
trol
city council violate
ing members of the
possibly
voters’,
can
those
they
right
fornia as
Mexican-American
plaintiffs’,
They
right
seek
protection
‘Establishment.’
to vote under
they
equal
brand as
Fifteenth,
Fourteenth,
govern-
Nineteenth and
into our houses of
gain entry
Twenty-sixth Amendments of the United
may throw wide
doors
ment that
Constitution?
States
waiting at the
who
to their
followers
disruption
our
gates
join
*4
in its deter-
2. Did the district court err
processes. Their
orderly governmental
no genuine
there was
issue of
mination that
government.”
is
in
goal
chaos
case and that
present
fact
this
material
fa-
viewing
light
in the
most
the evidence
allege that the statement con-
Plaintiffs
summary judg-
plaintiffs,
to
vorable
was
cerning
political agitators
an
outside
of the defendants should be
ment
favor
Raza Unida
La
obvious reference
as a matter of law?
granted
organization,
a Mexican-American
Party,
is an
from
appeal
Inasmuch as this
registration
had
the voter
conducted
summary judg-
granting
motion for
of a
the statements
de-
drive. Whether
ment, we
to the record to ascertain if
turn
not,
signed
spread
to
racist fears or
proceedings
complied
below
Rule
to
largest
people
number of
turned out
vote
56 of the Rules of Civil Procedure. The
history.
in a
San Fernando
Findings of Fact and Conclusionsof
court's
letter
Fernando in a
to
1249,
(orV
appear
pages
at
Yol.
Law
1245—
assemblyman
justified
its California
has
its
A)
appear
Appeal,
on
IV
the Record
preference
at-large elections in this
for
Appendix
A. The district
attached
manner:
judge
there was no material
court
found
“District elections in some cities
de-
remaining
litigated.
to be
issue
fact
sirable
and exist
these cities where
Opinion
a Memorandum
Thereafter
residents have voted to use them. How-
appears
It
judge.
filed
the district court
ever,
cities,
in some
the use of districts
A)
(or
V IV of
pages
at
1171to 1180 Vol.
qualified
would
only artificially
not
limit
opinion
judge’s
The trial
the Record.
councils,
people
serving
from
on
but
F.Supp.
published in 455
625.
would make it difficult for some cities to
appeal
an
from a com-
Because this is
recruit
in every
candidates
district which
charging
discrimination
plaint
invidious
choice
necessary meaningful
for
government, we
against municipal
find
voters.”
(once
legal area
described as
ourselves in a
statement
Plaintiffs contend
pre-
quagmire”),
with no
“mathematical
saying
the statement
tantamount
to
guidelines
Supreme
Court.
cise
quali-
Wise,
535,
express
Lipscomb,
must be
to
doubt that
Mayor
taken
See
2493,
(1978).2
L.Ed.2d
fied
from the 98 S.Ct.
Mexican-American candidates
govern-
(1973)) may
applied
municipal
Supreme
Apparently
be
case has ever
no
Court
system
explicitly
for
ments.
.
that an
elec-
held
today
city’s
whether
of a
unconsti-
need
consider
“[W]e
tion members
may
relevant
tutional.
constitutional
distinctions
legislature
state
drawn in this area between a
had
to consider
have never
occasion
“[W]e
municipal government.”
highly
analogue of this
amor-
whether
Concurring opinion, Rehn-
are sufficient to sustain respect us, to the Dal- findings case before Court’s and conclusions and, rec- on this directly las multimember made the trier of fact are con- ord, to disturb them.” no reason we have trary findings quoted to the and conclusions 767, 2340) (Id. at at 93 S.Ct. Supreme Regester, Court in White v. cu- Barnes, supra, per As the Graves case, supra. Just as in the latter “we have principle (following opinion states riam (Id. 767, no reason to disturb them” at District, Free School v. Union of Kramer 2340), and, at S.Ct. 621 at us, “On the record before we are not 583): L.Ed.2d inclined to overturn these findings, repre- minority group . . “. [W]hen senting do a blend of history and the concom- disadvantaged by invidiously an intensely appraisal local of the design continuing and past poverty, itance of impact of the Bexar County multi- sys- electoral discrimination, a restrictive member light past district in the scheme, districting tem, peculiar present reality, political and otherwise.” partic- opportunity’ gives it ‘less (Id. 769-770, 2341) 93 S.Ct. at will void the Court successfully, ipate (Id. adopt opinion at We scheme.” district court apportionment such judge, 455 F.Supp. and Affirm his ac- 732) tion granting summary judgment *6 doubt little There seems defendants. which suf group a represent herein to follow. little, Appendix remarkably there is poverty, fers but (DCRG), Responsible Government for referred first District Court [T]he organization is in effec- history white-dominated racial discrimination of official Party candidate right Democratic Texas, tive control at touched the times County. organization, slating partici- That register in Dallas Negroes and vote and found, not need processes. did pate the District Court democratic in the community Negro elec- to win Texas F.Supp. also to the of the at 725. It referred county, prerequi- therefore majority it did not requiring and vote as a tions in the rule political primary good-faith for the concern in a exhibit site to nomination Negro limiting aspirations ‘place’ rule candida- needs and to the so-called and other cy legislative that as recent- from a multimember court found office ticket, relying upon specified ‘place’ ‘racial ly on the to a the DCRG as 1970 repre- being precincts campaign the election of to defeat with the result in white tactics sup- overwhelming dis- multimember from the Dallas sentatives who had candidates Id., contest community.’ reduced to a head-to-head trict at 727. port the black position. it, These characteristics each District before the evidence Based on system, community in themselves neither Texas electoral that ‘the black concluded Court invidious, oppor- improper nor enhanced participa- effectively excluded has been discrimination, tunity the District for racial primary selection Democratic tion in the fundamentally, thought. found it More gener- id., process,’ was therefore at days, have there that since Reconstruction ally permitted into the to enter County only Negroes Dallas been two meaningful man- reliable and in a Representa- delegation House of to the Texas 766-767, Regester, supra, (White at ner.” only two were the and that these two tives 2339-2340). 93 S.Ct. Negroes Dallas Committee ever slated APPENDIX “A”
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA The Motion of cans to Defendants for associate with those Summary with similar Judgment came argument on for on May racial and economic status. 17, 1976 in courtroom 10 of the above enti- 4. The undesirable conditions in the bar- Court, tled the Honorable Jessie W. [sic] rio, housing, such unemployment, as old Curtis, Judge presiding. education, poverty, assuming low levels of John A. Lewis Thompson, and Bill attor- exist, problems which, do are social Lewis, neys Ghirardelli, counsel, Varni & extent, greater or lesser face all commu- appeared attorneys for Defendants and problems nities and are which arise because
Joaquin Avila of G. the Mexican American governments always local have not been Legal Fund, Defense and Educational coun- successfully able to accommodate the eco- sel, appeared for Plaintiffs. Plaintiffs’ nomically educationally disadvantaged filed a Memorandum of Points and Authori- portion who constitute a citizenry of their ties opposition to Defendants’ Motion for nothing and in Fernando there Summary Judgment. The matter ar- record to indicate that plays any race role *7 gued by counsel and Whereup- submitted. matter; in the underprivileged, be they on the on July 1976 rendered its white, brown or black suffer the same un- Memorandum of Opinion, finding and con- happy fate. cluding as follows: Although 5. Mexican Americans consti- OF
FINDINGS FACT percent city’s population tute 48.7 1. not, registered The City highest percentage they Fernando is nor voters San has it been at any past, time in the recent percent were able to obtain was 28.7 racially polarized. 1972. 2. Mexican any- Americans can live 6. The failure Mexican American vot-
where in city they choose to live. ers to elect Mexican American candidates to proportion population the council to
3. their The concentration of Mexican Ameri- “barrio”, city attributable, largely, apathy cans in the any way cannot in be city government traced to but is of the Mexican American and not to the result voters of individual desire Mexican Ameri- racially polarized voting. Kaiser, to the effect
Assemblyman James for small it difficult make it would process open Mexi- 7. The electoral every candidates cities to recruit open the same extent it is can Americans to meaningful choice necessary for a which to others. arbi- and not voters, reasonable by the campaign been no racist 8. There have is a Fernando capricious San trary or either in against Mexican Americans tactics covering an small, city compact relatively any- or newspapers incumbents 17,000 persons. approximately area of where else. in the scheme large election The at 17. registration ir- charges 9. The of voter all as to allow is such Fernando City of San in the election regularities by city clerk participate of race to irrespective persons to the Mexican of 1972 was not directed equal basis on an governing were made in Community American ability. and their wishes according to their her duties as clerk. performance American of Mexican failure 18. The Amer- The reference to the Mexican 10. voters registered elections ican candidates as activists in the elect members and to government in reference to La probably of 1972 was has population to their proportion register Party Raza and its efforts to Unida education, train- lack of apathy, been due in the barrio and an Mexican Americans sup- of economic experience, lack ing and organi- upon politically attack activist are which similar reasons and other port polarity racial zation is no more evidence of irrespective of persons all applicable to upon Society. the John Birch than an attack similarly are otherwise their race but who police 11. There is no evidence of situated. poles; harassment at the if such incidents occur, they did were no more than a few OF LAW CONCLUSIONS which far short of isolated incidents fall (1) prove any Plaintiffs’ have failed to establishing pattern from which infer- facts to their contention that may drawn. polarization ence of voter city’s large brought has scheme 12. The concentration of Mexican Amer- any voting power about dilution of the nonprofessional categories with the icans it’s Mexican American citizens or that [sic] accompanying lower salaries in the operates invidiously it discriminate government is attributable to low levels of against Mexican Americans. education and low civic awareness not to alleged by plaintiffs (2) If all the facts any racial discrimination. true, support plaintiffs’ do not large election the at 13. of councilmen and conclusions The small number Fer- commission members from the barrio is due scheme as utilized invidiously against low civic awareness which is result nando discriminates high levels of edu- unemployment and low Mexican Americans. and not the result of discrimi-
cation racial therefore, The Court concludes there nation. is no substantial issue of fact remains response In to the needs of the Mex- litigated to be and the Defendants are enti- city through community, ican American Judgment tled to a as a matter of law. Agency attempting Redevelopment Summary Judg- Defendants’ Motion for blight to remove in the barrio some granted ment is therefore and the clerk is *8 complain. of which Plaintiffs Judgment ordered to enter therefore. city government 15. The is not less re- (s) JESSE W. CURTIS sponsive to Mexican American citizens than THE JUDGE OF segments of the other UNITED STATES DISTRICT COURT FOR maintaining The reason for the at THE CENTRAL large by scheme set forth election DISTRICT. Administrator, James, in a letter to Robert
1275
KENNEDY,
Judge,
argue
concurring:
Circuit
do not
in the briefs that fif
teenth amendment standards differ
hesitation, I too conclude
After some
amendment
standards.
fourteenth
See
case,
summary judgment
proper
in this
Sides,
(5th
1978),
Nevett
209
v.
571 F.2d
Cir.
and I concur in the
of the court
filed,
petition for cert.
47
3247
U.S.L.W.
approach adopted by Judge
and in the
22,
Moreover,
(Sept.
1978) (No. 78-492).
I
Barnes. Certain conclusions of the trial
arguendo
assume
that under either or both
troublesome, however,
court do remain
or
fourteenth
fifteenth amendments the
further comment on these matters seems
grant equitable
court could
relief to restruc
appropriate.
at-large system
necessary
ture an
where
The
determining
standards for
the consti
government
designed
correct deliberate
acts
tutionality
systems
electing
leg
for
state
deprive
political par
ethnic minorities of
islators set forth in cases such as White v.
benefits,
ticipation
or
even without
755,
Regester,
2332,
412 U.S.
93
37
S.Ct.
finding
system
itself was main
(1973),
L.Ed.2d 314
and Whitcomb v. Chav
Nevertheless,
tained with that intent.
is,
124,
1858,
403 U.S.
91
29
S.Ct.
L.Ed.2d remedy
justified
case,
would not be
in this
(1971),
363
have not yet
applied by
been
restructuring
since
system
is so
systems
electing city
council
fully disproportionate
any
discriminatory
mayors.
members or
This was noted in the
might
act that
be established
hearing
after
concurring opinion of four Justices in Wise
plaintiffs’
all
evidence here.
535, 550,
Lipscomb,
v.
98 S.Ct.
precise wrong
The
appear
2493,
(1978),
1276 candidate, minority Failure elect a body. McKeithen, F.2d 1297 485 v.
In Zimmer maintains government entity sub whether the ground on other (5th 1973), aff’d Cir. or other at-large v. scheme some Board Parish an nom. East School Carroll 1083, 636, method, 47 itself violate the Con- Marshall, 96 does not S.Ct. Organizations the devel- See Jewish (1976), Fifth Circuit stitution. United L.Ed.2d 296 166-67, con- 97 Carey, district courts 430 S.Ct. a for v. U.S. oped framework 179-80, minority been at 97 group (1977); has id. sidering a L.Ed.2d 229 whether 51 Powell, JJ., concurring (Stewart equal access & denied 996 S.Ct. Chavis, at-large plan an 403 of part judgment); as a claim Whitcomb discriminatory purpose. showing 148-60, a 1858. A maintained with at consistently minority group candidates two Zimmer established The court prerequisite to a going polls may the be a lose at categories, containing criteria one evidence, claim, that the supported by access other of of the issue denial primarily to discrimi- voting scheme is maintained with dilution, containing inquiries the other Nevett, supra at 223. natory intent. structural See existence certain as the however, by a If, only evidence offered may the un- voting enhance devices at-large voting sys- plaintiff challenging factors derlying “primary” The dilution. elections, summary politi- accessibility to tem is outcome group’s include: the No slating appropriate. of candi- reasonable processes (such as the cal only these election dates), representa- person could infer responsiveness method was main- “particularized tives to interest” results policy discriminatory because of intent. group, weight the state tained the effect at-large districting, behind their The facts on which base group’s past upon discrimination greater length are at claim detailed participation system. 485 in the election opinions. They majority and court “enhancing” F.2d at The factors 1305. consti- include: Mexican-Americans district; por- include: the size of population; city’s 48.9% of the tuted necessary tion of for election the vote Mexican-American highest percentage of posi- plurality); where the (majority or registered 28.7%of registered voters was all individually, tions are not contested for 1972; 1911 three Mexican- voters since which an the number of candidates for ap- elected and one Americans have been vote; elector and whether candi- must council; some Mexican- pointed to dates must reside in subdistricts. were harassed dur- poll watchers American Sides, supra, Nevett v. at elections; 571 F.2d nearly half all ing the 1972 (footnote omitted). not nec- While I would have been places in recent elections polling essarily adopt the Zimmer test as the law families, none of located homes circuit, way approach a it is useful surnamed;1 percent- Spanish lower are minority group whether a been denied has appointed age of Mexican-Americans political process. access to the operating mechanics of participants in the general pop- exists the elections than analysis The of chal- Supreme Court’s ulation; percentage of Mexican- lower rep- lenges electing methods for various appointed com- have been Americans produced principle another resentatives has missions, exists in since than The least important resolution of this case. for two construction general population; unequivocally has that minori- stated considered, expan- one for groups right proposals were ty have no constitutional street, building legislative and one proportional representation in a sion of Spanish-sumame plaintiffs’ of the 27 households. Out facts: brief summarizes the election, only places polling the 1964 election, only For the 15 the 1972 5 out of elections, public buildings. In the 1970 were polling places public were build- located only places, polling were seven out public buildings, ings; remaining polling places were non- Spanish- there were no Spanish-sumame the 1964 households. For sumame households. election, only places polling the 27 5 of
1277
apartment
por-
complex,
process
an
and relevant
defects in the electoral
resulting
tions were deleted as a result of sentiment
English only
use
in registration
the
of
expressed
of
and voting procedures
members
the barrio com-
appear to be reme
munity;
city
place a stoplight
the
failed to
died by
Voting Rights
the
Act of
barrio; prior
at a street intersection in the
1973aa-1a(a),
U.S.C.
and Cal.Elections
§
racially
to 1948
restricted covenants
(1975),
existed Code
allega
and there is no
§ 1635
deeds;
particular newspaper
in real estate
a
tion that defendants
not complied
have
1954;
printed
passages
editorial was
highly
these statutes. This fact
is
newspaper
from a few
probative regarding
articles from the
equal access to the po
early
allegedly
1900’s
contained disparaging
process.
Joseph,
litical
Cf. Hendrix v.
Mexican-Americans;
(5th
words about
at
1977).
the F.2d
Cir.
a
registra-
time of Mexican-American voter
determining
Also relevant
to
access to
tion drive the
clerk in 1972 issued state-
political
the
plaintiffs’
is
evidence
alleged
ments concerning
registration
voter
regarding
many
the location of
polling
irregularities;
mayor
and the
issued a sub- places
private
white homes outside the
sequent
concerning
statement
of
efforts
2, supra.
barrio. See note
The district
“activists” to
city govern-
take over the
explicit finding
court made no
to
as
Finally,
ment.
it
undisputed by
par-
is
why
polling places
reasons
so few
municipality
ties that the
of San Fernando
located in the
or in
barrio
a Mexican-Ameri-
16,500,
a population
has
of about
that
its
can surnamed home.
I
plaintiffs’
believe
miles,
is approximately
square
area
two
respect
might
evidence
be sufficient
ap-
that Mexican-American candidates have
in other contexts to survive a summary
peared
campaigned
on the
ballot
for
motion,
assuming plaintiffs’
but
positions
council
in recent elections.
charge
discriminatory
true,
placement is
Assuming
allega-
that plaintiffs’ factual
the facts still cannot reasonably be viewed
true,
together,
tions are
indicating
when taken
denial of
to
access
permit
person
would not
a reasonable
processes
justify
which in turn would
either
at-large system
electing
at-large
infer that
for
system
an inference that
mayor
and city
discriminatory
council members is maintained because of
intent
of an
finding
restructuring
system
maintained because
invidious intent.
or a
is
framework,
through
Viewed
the Zimmer
it
appropriate remedy
to cure the viola-
apparent
very
a
small
only
number
tion. There is no substantial evidence in
alleged
probative
indicating
poll-
facts
of dis-
record
location
criminatory
ing places
maintenance
systematically
has made it
more
plan
opportunity
vote,
or denial of
difficult
for Mexican-Americans
political processes.
causing
who
Mexican-Americans
otherwise
forego voting.
would have voted to
More
parties
Political
do
take
active
important, placement
polling places
part
city council elections.
It is thus not
only
component
determining
one
accessi-
necessary
potential
candidate
se
bility
political processes.
to the
approval through
primaries
cure
party
slating processes
appear
order to
on
by plaintiffs similarly
The facts advanced
Compare
Regester,
suggesting
ballot.
reasonably
White
cannot
viewed as
766-67,
Further,
municipal government
sponsiveness
city
interests,
on various
the court not-
representation
minority
American
siveness
is,
substantially
general,
already
commissions
had
been
ed that
the commission
of Mexican-
percentage
lower than
discriminatory hiring prac-
guilty
found
registered
voters.
residents
American
order to end
and was under court
tices
num-
“The small
court found:
The district
Noting
id. at 1269.
practices.
those
See
commission members
and
ber of councilmen
hiring disparity here is indicative
that “the
aware-
is due to low civic
from the barrio
responsiveness
of some measure of lack
high unemploy-
the result of
ness which is
hiring discrimi-
prerequisites
since the
to a
of education and not
ment and low levels
showing of inten-
nation lawsuit include a
It is
racial discrimination.”
the result of
qualified
tional refusal
to hire otherwise
various
service on the
not clear that
Commission,”
persons by the defendant
high level of educa-
requires a
commissions
alone,
finding
“This
court still concluded:
the small number of Mexican-
tion or that
however,
Hiring
enough
is not
.
.
.
councilmen results from the lack
American
it is
disparity
only
is relevant at all
because
Mexican-Americans.
qualified
of available
that the Commission
suggestive of the fact
finding may,
The district court’s
after fur-
unequally
it can treat black citizens
believes
examination,
clearly
turn out to be not
ther
belief,
course, is
impunity.
a
Such
erroneous,
proper
it was not
on summa-
but
dilution
symptom
in turn a
this result
not
ry
to conclude
jobs
only
piece
one
The allocation of
product
of deliberate bias. Even as-
puzzle.”
eventually
Id. The court
held
suming invidious discrimination in
com-
that,
law,
by
the facts found
as a matter
however,
appointments,
it does not
mission
sup-
court were insufficient
district
present
system
follow that
port
finding
unconstitutionality,
a
and
must be restructured.
proceedings.
remanded for further
As dis-
present
employment
Plaintiffs also
below,
may
plaintiffs’
cussed
evidence
be
showing that
are
data
Mexican-Americans
justify
contexts to
some
sufficient in other
employed primarily
nonprofessional
agree
I
with the court in Hendrix
relief.
The
salary categories.
and lower
type
of evidence cannot as a mat-
did
improperly
court
choose between
support
finding
ter of law
the at-
competing
in conclud-
reasonable inferences
large plan is unconstitutional.
ing
professional positions require high-
remaining factors of the Zimmer
test
nonprofessional
er levels of education than
policy
favor the defendants. The state’s
positions.
undisputed
Given the
facts that
supporting at-large plans
long standing.
as of 1970 10% of barrio residents had no
Indeed,
education,
high
only
it was
in 1955 that California
20.8% had
school educa-
tion,
education,
permitting
college
passed
option
and 2.0% had a
a statute
cities the
employment
holding single-member
statistics are insufficient
district elections.
this context to
a reasonable infer-
Further,
Cal.Gov.Code
See
§
hiring policies reflect
city’s
ence that
vitality
continued
of the state and local
unresponsiveness to the Mexican-American
supporting at-large plans
interests
is illus
hearings
by
trated
recent
conducted
legislature
state
proposals
over various
Joseph
Hendrix v.
both to
relevant
See,
plans.
g.,
restructure local election
e.
appointments
employment
commission
and
Hearings
Assembly
Before the
Committee
data.
In that case the Fifth Circuit re-
Reapportionment,
on Elections and
Wheth
holding
viewed a district court
City
er
Councilmen
Be Elected
Should
at-large system
electing
county
District; Whether Local Elections Should
Montgomery County,
commission of
Ala-
Partisan,
(con
bama,
Become
October
The facts
unconstitutional.
Hall).
Fernando
As to
roughly
in the instant
ducted
similar
those
case;
indeed,
past
plain
the effect of
on
plaintiffs’
stronger
case was
discrimination
Supreme
ed in
ability
tiffs’
in the election
relevant
do
cases
re-
system,
elements,
the relevant facts
the existence
quire balancing several
such
racially
property
restrictive covenants in
province
balancing
normally
deeds,
Shelley
not outlawed until
Kraem
Still,
finder
point
of fact.
there comes a
er,
have demonstrated Conceivably, reasonable remedy.
such a evidence in plaintiffs’
people presented finding intention- might make
this case aspects some
al discrimination That evidence political processes.
city’s however, permit invalida-
not, sufficient to mechanism. at-large electoral
tion of the reasons, I concur in the foregoing
For the of the court. *13 MAY, Plaintiff-Appellant, D.
Wilbur DISTRICT, ir
NEVADA IRRIGATION existing organized
rigation California, Defendant-
under the laws of
Appellee.
No. 77-1698. Appeals,
United States Court
Ninth Circuit.
July