to Place 1. In that election 660 of the total of 1,993 voters were Mexican Americans and Mr. Rangel received 655 votes (the close similarity of those figures is clearly indicative of racial bloc voting). Since the Anglo vote was split among four Anglo candidates, Mr. Rangel prevailed with the highest number of votes.
Mr. Rangel's victory demonstrates that the larger number of candidates for a given position, the better is the chance of Mexican Americans to elect candidates of their choice. The voting results before the Court bear this out. For example, in the same year that Mr. Rangel was elected to Place 1, a Mexican American sought the position of mayor and another sought the position as councilmember for Place 2. In each instance, the number of votes received by the Mexican American candidate was approximately the same as the number of Mexican American voters. However, in each instance, the remaining votes were split among only three Anglo persons who were serious candidates, and in each instance the Mexican American candidate was defeated.
Under an at-large electoral system without numbered posts, a cognizable voting minority can leverage their voting strength by single-shot or bullet voting.
The imposition of numbered posts diminishes this leverage. It does so in two ways. Expert witnesses for all parties agreed that the imposition of a numbered-post provision reduces the field of candidates for election, and at the same time, highlights the individual candidates for each position. This double result nullifies the effects of singleshot voting by forcing minority voters to cast a vote for each numbered position. This reduction in the size of the candidate field and consequent highlighting of candidates is detrimental to minority or minority-supported candidates.
The employment of staggered terms further diminishes this leverage. Staggered terms in an electoral system highlight individual contests and emphasize individual confrontations between candidates. This is usually to the detriment of the minority or minority-supported candidate, because "single shot" voting is less effective.
The enlargement of Lockhart's governing body from three to five does not offset the disadvantage to minorities of numbered posts and staggered terms. Although the study relied upon by Dr. Taebel indicates, as a general theory, that enlargement of a city's governing body may enhance the effect of the minority's franchise, the enlargement at issue here (i.e., from three to five members) is not significant enough to provide any clear benefit to Mexican American voters since both the three-member general law commission and the five-member home rule council would be classified as "small."
III. Conclusions of Law
1. This Court has jurisdiction to hear and determine the plaintiff's request for Section 5 preclearance of the voting changes involved in this litigation. 42 U.S.C. 1973c; 28 U.S.C. 1346(a)(2).
2. The Court is properly convened as a court of three judges. 42 U.S.C. 1973c; 28 U.S.C. 2284.
3. The Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. was enacted to insure the protection of rights guaranteed by the Fifteenth Amendment and "to rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S. Ct. 803, 811, 15 L. Ed. 2d 769 (1966).
4. The State of Texas is subject to the preclearance requirements of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, 40 Fed.Reg. 43746 (1975).
5. Voting changes enacted or administered by the State of Texas and the City of Lockhart after November 1, 1972, are subject to the preclearance requirements of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c.
6. Under Section 5, the City of Lockhart may not enforce or implement any change in "any voting qualification or prerequisite to voting, or standard practice or procedure with respect to voting," unless such change has either been precleared by the Attorney General, or unless the City of Lockhart obtains a declaratory judgment in the United States District Court for the District of Columbia that such change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color [or membership in a language minority group]." 42 U.S.C. 1973c.
7. The "home rule" governance and election plan adopted by the City of Lockhart on February 20, 1973 is subject to the preclearance requirements of Section 5. Cano v. Chessar, A-79-CA-0032 (W.D.Tex., March 2, 1979).
8. The Court concludes that the numbered-post provision of the election plan set forth in the Lockhart City Charter is subject to Section 5 review. In reaching this conclusion, the Court is mindful of the U.S. Supreme Court's decision in Beer v. United States, 425 U.S. 130, 96 S. Ct. 1357, 47 L. Ed. 2d 629 (1975), but concludes that Beer is clearly distinguishable from the instant case. In Beer, the City of New Orleans sought a judgment declaring that a reapportionment of its five councilmanic districts did not violate Section 5. The 1954 New Orleans city charter provided for a seven-member city council, with one member being elected from each of five councilmanic districts, and two being elected at large. The reapportionment was required after each decennial census by the same city charter.
The U.S. District Court for the District of Columbia held that the entire reapportionment plan for five councilmanic districts was invalid because it would have the effect of abridging the right to vote on account of race or color. The District Court also held, more pertinently, that as a separate and independent ground, the reapportionment plan could not withstand Section 5 scrutiny solely because it did not enhance the minority vote by eliminating the two discriminatory at-large seats which had existed without change since 1954. On this aspect of the case, the U.S. Supreme Court held that the two at-large councilmanic seats were not subject to Section 5, stating:
"Discriminatory practices . . . instituted prior to Nov. 1964 . . . are not subject to the requirement of preclearance under Section 5. (Citations omitted). The ordinance that adopted [the Reapportionment Plan] made no reference to the at-large councilmanic seats. Indeed, since those seats had been established in 1954 by the city charter, an ordinance could not have altered them; any change in the charter would have required approval by the city's voters. 425 U.S. 138-9, 96 S. Ct. at 1362.
The Court also held that the reapportionment plan enhanced the position of racial minorities and that such an ameliorative plan could not have the effect of denying or abridging the right to vote on account of race or color in violation of the statute.
The circumstances presented herein are different. Here, the previously illegal numbered posts were included specifically in the Home Rule Charter presently at issue, and the charter was approved specifically by the voters in Lockhart. This approval abolished completely the commission form of government and substituted in its stead an entirely new form of city government with an entirely new election scheme. In Beer, the legitimate albeit discriminatory at-large seats established in 1954 were not mentioned in the implementing ordinance, and the voters were not called upon to consider them. As the language from Beer, cited supra, indicates, these were facts that the U.S. Supreme Court expressly relied on.
Moreover, when Lockhart originally adopted the numbered-post provisions of its election plan in 1917, it did so without authority and in violation of state law. As a "general law" city, the power of Lockhart's city government was limited to those prescribed under state law. Tex. Civil Statutes §§ 961 et seq. The state legislature had determined the methods of election of general law cities. Tex. Civil Statute § 1158. There is no provision under Texas law authorizing "general law" cities to use numbered posts.
Under Texas law, a city can exercise only those powers conferred by law. City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (Tex.Civ.App.1980). All acts done beyond those powers conferred are void. City of Fort Worth v. Lillard, 272 S.W. 577 (Tex.Civ.App.1925).
Moreover, the mere assumption and assertion by a city of a power not granted to it gains nothing by lapse of time. Conklin v. City of El Paso, 44 S.W. 879, 882 (Tex.Civ.App.1897) cf. City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448 (Supreme Court of Texas 1947) (where a contract of a municipal corporation is ultra vires and void, there is no contract to rescind); Pasadena Police Officers Association v. Pasadena, 497 S.W.2d 388 (Tex.Civ.App.1973) (A municipality's void act, one that is beyond its powers may not be validated upon principles of estoppel); Young v. City of Seagoville, 421 S.W.2d 485 (Tex.Civ.App. 1967) (ordinance void at time of adoption for conflict with statute statute did not become valid upon repeal of statute). As this Court interprets the foregoing authorities, the numbered-post provision, illegitimate at inception, must be treated for Section 5 purposes as if it had never existed until it appeared legitimately pursuant to Texas law in the 1975 Lockhart City Charter. In summary, the validation of the previously illegal numbered posts represents a change in voting procedures which is completely dissimilar to the continuation of the two at-large councilmanic seats in Beer which were unchanged.
The Court does not consider Perkins v. Matthews, 400 U.S. 379, 91 S. Ct. 431, 27 L. Ed. 2d 476 (1971) to undercut this conclusion. In Perkins, plaintiffs sought to enjoin the 1969 election for city offices in Canton, Mississippi. Plaintiffs alleged that the newly utilized at-large election of aldermen differed from the ward election feature utilized prior to November 1, 1964. The at-large feature had been required by a Mississippi state statute since 1962 that had heretofore been overlooked. The city argued that, having learned of the 1962 statute, it had no choice but to comply with it in the 1969 elections and that there was no change subject to § 5 preclearance. The United States Supreme Court noted first that a change from ward to at-large alderman elections had been found previously to be a change within the coverage of § 5. Id. at 394, 91 S. Ct. at 439. In the context of the suspicious facts before it, the Court extended the coverage of § 5 to include Canton's belated 1979 change from ward to at-large even though it had been required since 1962, before the operative date of § 5. In so doing, the court extended § 5 protection to the fullest extent, in accordance with the policy underlying the Voting Rights Act as set forth in prior case law and the legislative history. This Court, in reaching its conclusion that Lockhart's numbered-post provision utilized illegally for over 50 years and legitimatized in 1973 is within § 5 seeks to do the same. To hold otherwise, to permit plaintiff's discriminatory numbered-post provision to escape § 5 preclearance, would reward plaintiff for its illegal activities in the past.
There is an additional reason why the numbered-post provision is a Section 5 change and must be reviewed. Prior to February 20, 1973, the city was governed by a mayor and two commissioners who were elected on an at-large basis to two-year terms at the same time. The new city charter provided that Lockhart would be governed by a mayor and four commissioners elected on an at-large basis to two-year terms, and the terms were to be staggered. The mayor and two council members would be elected in one year and the remaining two council members the next. The new plan requires elections every year as opposed to every other year under the old plan, and the discriminatory impact of the numbered posts under the new plan affects twice as many elections for a larger number of positions. Section 5 is concerned with the reality of changed practices as they affect minority voters, Georgia v. United States, 411 U.S. 526, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1973), and is intended to reach any enactment which alters the election law in even a minor way. Allen v. State Board of Elections, 393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969). Even assuming the validity of the original two numbered-post provisions, the provision for an additional two numbered-posts in conjunction with the the provision for an additional two numbered-posts in conjunction with the provision for staggered terms has a synergistic discriminatory effect. This is again completely different from the continuation of the provision for two at-large councilmanic seats in Beers.
9. In this declaratory judgment action under Section 5, the plaintiff has the burden of proving that the governance and election plan at issue does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. The absence of both discriminatory purpose and discriminatory effect must be established by plaintiff. The inability of the plaintiff to establish the absence of the prohibited effect precludes the plaintiff from obtaining the requested relief. 42 U.S.C. 1973c; City of Rome v. United States, 446 U.S. 156, 100 S. Ct. 1548, 64 L. Ed. 2d 119 (1980); South Carolina v. Katzenbach, supra, 383 U.S. at 335, 86 S. Ct. at 822; Georgia v. United States, 411 U.S. 526, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1975); City of Richmond v. United States, 422 U.S. 358, 95 S. Ct. 2296, 45 L. Ed. 2d 245 (1975); City of Petersburg v. United States, 354 F. Supp. 1021 (D.D.C.1972), aff'd., 410 U.S. 962, 93 S. Ct. 1441, 35 L. Ed. 2d 698 (1973); Allen v. State Board of Elections, 393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969); Beer v. United States, 425 U.S. 130, 140-41, 96 S. Ct. 1357, 1363, 47 L. Ed. 2d 629 (1976).
10. Both the Congress and the Supreme Court have established that the imposition of numbered posts and staggered terms can have a discriminatory impact on minority voting rights. The Supreme Court has recognized that an election plan which contains features such as numbered posts and staggered terms, when combined with the presence of racial bloc voting, has a discriminatory impact on the group of persons whom the Voting Rights Act was designed to protect. In extending the Voting Rights Act of 1975, the Congress found numbered posts to be a potentially discriminatory device. City of Rome v. United States, 446 U.S. 156, 100 S. Ct. 1548, 64 L. Ed. 2d 119 (1980); S.Rep. No. 94-295, 94th Cong. 1st Sess. 27-28 (1975); H.R.Rep. No. 94-196, 94th Cong. 1st Sess. 19-20 (1975), U.S.Code Cong. & Admin.News 1975, 774.
11. The Court recognizes that the City of Lockhart is not required to search for ways to maximize the political strength or representation of Mexican-American citizens. City of Richmond v. United States, supra, 422 U.S. at 370-72, 95 S. Ct. at 2303; Gilbert v. Sterrett, 509 F.2d 1389, 1394 (5th Cir.1975); Cousins v. City Council of the City of Chicago, 503 F.2d 912, 920 (7th Cir.1974); Turner v. McKeithen, 490 F.2d 191, 197 (5th Cir.1973); Howard v. Adams County Board of Supervisors, 453 F.2d 455, 458 (5th Cir.1972).
12. The plaintiff has failed to demonstrate, however, that the "home rule" governance and election plan will not have a discriminatory effect on Mexican-American voters' ability to elect candidates of their choice. Although the at-large system, by itself, does not deny Mexican-American voters the opportunity to elect candidates of their choice, the imposition of the numbered-post and staggered-term provisions has clearly had and will continue to have such an effect on Mexican-American voters.
13. Unlike Beer, the apportionment plan before us is not ameliorative but is retrogressive because the ability of Mexican Americans to participate in the political process and to elect their choices to office is diminished by the numbered-post and staggered-term provisions.
14. The failure of the city to sustain its burden of showing that the adoption of the home rule governance and election plan has not had, and will not in the future have, the effect of denying or abridging the right to vote on account of race, color or membership in a language minority group requires that the request for declaratory judgment be denied. 42 U.S.C. 1973c; Hale County v. United States, 496 F. Supp. 1206 (D.D.C. 1980); City of Rome v. United States, supra; Donnell v. United States, C.A. 78-0392 (D.D.C. July 31, 1979) aff'd. 444 U.S. 1061, 100 S. Ct. 1000, 62 L. Ed. 2d 743 (1980).
In light of the foregoing, this action is dismissed.
For the Court.