Garcia v. Uvalde County

SPEARS, District Judge, dissenting:

Although the majority says that this Court can review the circumstances in which the objection letter was issued in order to determine whether or not it was valid and timely (P. 102), this proposition of law is not free from doubt. See Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 53 L.Ed.2d 506; and Georgia v. United States, 411 U.S. 526, footnote 13, p. 541, 93 S.Ct. 1702, 36 L.Ed.2d 472. Nevertheless, for the purpose of this dissent it will be assumed, but not admitted, that the majority is correct.

While the “seven month submission process” discussed by the majority troubles me considerably, I cannot, in light of the record herein, attribute all of this inordinate delay to the Attorney General. On the contrary, a substantial amount of the blame for the “dragging out” of the process must be shared by the County, and since I am convinced that the July 30, 1976 letter written by the Attorney General to the submitting authority was both appropriate and timely under the circumstances, I must respectfully dissent.

The threshold problem presented by the majority is that of interpreting the regulations published by the Attorney General, 28 C.F.R. § 51.01 et seq., which govern the submission of changes affecting voting to the Justice Department for preclearance. I agree that the spirit of the Act, and the regulations thereunder, call for a construction which would allow the Attorney General a period of sixty days following receipt of a submission to review the materials before him and determine from them that either (1) an objection is called for, (2) no objection is called for, or (3) no determination to make or withhold an objection is possible on the basis of the material submitted, and that additional information is needed from the submitting authority. Further, I agree that should the third alternative prove necessary, the Attorney General must request all material he needs within the initial sixty day period. He may make a series of requests, but all must be made within that time. He is then entitled to wait until all information so requested is received from the submitting authority before the sixty day period in which he must object begins to run.

Applying this construction to the case before us, one must begin with the initial submission by Uvalde County. The letter accompanying the submission, dated March 22, 1976, states that the committee charged with formulating a new redistricting plan “used the voter list, the census report, a spot map kept by the City of Uvalde showing the density of utility users and all other information they could receive.” The text of the letter specifically states that the redistricting was not accomplished by a pri- or committee due to an objection lodged by Gilbert Torres, a plaintiff in the present suit, to the effect that census data was not considered in the first redistricting plan.

*107The initial submission letter was received by the Attorney General on March 25,1976. Within sixty days thereafter, on May 19, 1976, the Attorney General sent a letter requesting additional information. Among the items requested in this letter was the following:

The total population and number of registered voters by race (white-Anglo, black and Spanish heritage) for each of the precincts in question before and after adoption of the changes. If exact statistics are not available, please provide your best estimates and advise us of the basis for such estimates.

In reply, the County Judge of Uvalde County sent his letter of May 28, 1976, in which he stated:

We do not have any way of telling the total population of these districts before and after this change was made. We do have, and I am enclosing herewith, a list showing the persons by voter registration.

The next communication between the parties was the July 30, 1976 letter from the Attorney General to the County Judge, wherein the following information was requested:

Estimates of the total population by race (White-Anglo, Mexican American, and Black) in Uvalde County, as well as population totals by race for each of the Commissioner precincts before and after adoption of the changes. Please indicate the basis for your estimates. In this regard, your correspondence indicates that in the reapportionment voter registration data as well as population data were taken into account.
Furthermore, the Redistricting Committee, appointed by the Uvalde County Commissioner’s [sic] Court, in their report, indicates that 1970 census tabulations as well as a population density map for the City of Uvalde was available for their consideration. Please advise us of the specific data utilized in your determination. (Emphasis supplied).

At first glance, the July 30 request seems repetitious of the one made in the May 19 letter, to which the County responded that the information sought was simply unavailable. However, if reference is made to the original submission letter and the attachments thereto, it appears that the 1970 census report was in fact used by the Redistricting Committee in its formulation of a plan. The original submission fails to specify what census information was used or how it was used, and it seems to me that the repeated requests of the Attorney General are directed at this point, as indicated by the wording of the July 30 request, and the deposition testimony of Robert Chavez, a Department of Justice analyst (Chavez, p. 22, first question — p. 23, third question).

In evaluating a situation such as this, the good faith of the Attorney General and his delegates must be presumed, and inasmuch as the defendants are affirmatively attacking the administration of the Attorney General’s procedures, it would appear that it is incumbent upon them to show “unwarranted administrative conduct” resulting in “frivolous and repeated delays by the Justice Department.” Georgia v. United States, 411 U.S. 526, footnote 13, p. 541, 93 S.Ct. 1702, 1711, 36 L.Ed.2d 472.1

I do not believe that the record supports a finding of any such conduct on the part of the Justice Department in this case. As I see it, the Attorney General acted reasonably in writing the July 30th letter, given the apparent conflict in the information supplied by the submitting authority. The regulations emphasize the value of population statistics in the evaluation of changes in voting practices or procedures which involve redistricting. 28 CFR § 51.10(b)(5) and (6). The requests for such information are certainly supportive of the argument that the Attorney General’s office was searching for a basis upon which it might sustain the Uvalde County reapportionment. Each letter requesting additional in*108formation contains an offer to aid the submitting authority in complying therewith, an offer the benefits of which the submitting authority in this case failed to avail itself.

The County’s letter of May 28, 1976 was received by the Attorney General on June 1, 1976, so the July 30th letter from the Attorney General was timely. The time-table of events demonstrates that on August 12, 1976, the County responded to the Attorney General’s letter of July 30, 1976. This response was received by the Attorney General on August 14,1976, and he registered his objection within sixty days thereafter, on October 13, 1976. I would, therefore, continue in force the injunctive relief heretofore granted, and extend that relief to cover the May 6, 1978 party primaries.

AMENDED ORDER

Came on for consideration by this Court the Motion made by Plaintiffs, Richard Garcia, et al., that the Court reconsider its April 20, 1978 Memorandum Opinion and Order and its April 27,1978 Judgment, and, came on for consideration by this Court the Motion made by the United States of America, Plaintiff-Intervenor, that this Court reconsider and amend its April 27, 1978 Judgment. After considering these Motions and all pleadings, affidavits and memoranda in support thereof, the Court is of the opinion that these Motions should be, in all things, denied. It is therefore,

ORDERED, ADJUDGED and DECREED that the Motions of Plaintiffs and PlaintiffIntervenor, hereinabove referred to, and the relief requested therein is hereby denied.

. But even if, as the majority says, the burden of proof to show that the October 13 objection was timely lies upon the plaintiffs, the record, as I read it, reflects that such burden has been fully satisfied.