CITY OF PORT ARTHUR, TEXAS, APPELLANT V. UNITED STATES OF AMERICA, ET AL. No. 81-708 In the Supreme Court of the United States October Term, 1981 On appeal from the United States District Court for the District of Columbia Brief for the United States TABLE OF CONTENTS Opinions below Jurisdiction Statement Summary of argument Argument: I. The district of court correctly conditioned preclearance of the city's territorial expansion upon modification of its proposed election plan in order to provide blacks in the enlarged community a fair opportunity to influence the outcome of elections for the two non-mayoral at-large positions. A. In reviewing an electoral plan designed to eliminate the dilutive effect on minority voting of a city's annexation, the district court sits as a court of equity with authority to condition preclearance on the modification of any part of the plan it reasonably concludes has a discriminatory effect or purpose B. In its June 12, 1981 opinion, the district court found the City's use of at-large elections with a majority vote requirement in prior electoral plans had both a discriminatory purpose and a discriminatory effect C. Appellant is incorrect in asserting that the plan approved by the district court goes beyond what is required under this Court's decision in City of Richmond II. The district court did not err in reviewing independently the city's electoral plan even though the United States had agreed to settle the litigation on the basis of that plan Conclusion OPINIONS BELOW The June 12, 1981, opinion of the district court (J.A. 1a-75a) is reported at 517 F. Supp. 987. The July 14, 1981, order of the district court (J.A. 87a-88a) is not reported. JURISDICTION The order of the district court (J.A. 87a-88a) was entered on July 14, 1981. The notice of appeal (J.A. 89a) was filed on July 21, 1981. The appeal was docketed on October 13, 1981, and this Court noted probable jurisdiction on January 25, 1982. The jurisdiction of this Court is invoked under 42 U.S.C. 1973c. QUESTION PRESENTED Whether the district court reasonably conditioned approval of a mixed at-large and single member district plan for electing city council members, submitted jointly by appellant and the United States under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, on a requirement that the election of the two at-large council members should be decided on a plurality, as opposed to majority, vote in order to neutralize the adverse racial impact caused by appellant's territorial expansion. STATEMENT 1. The facts of this case are described at length in the June 12, 1981, opinion of the district court (J.A. 4a-44a). The City of Port Arthur is located in the southeastern portion of Texas. While the total population of the city decreased between 1960 and 1980 (from 66,676 to 54,485), the percentage of that population comprised by blacks increased over the same period (from 30.79% to 45.21%) (J.A. 5a-7a). /1/ From 1954 to 1963, the City had a commission-manager form of government. Seven commissioners were elected from single-member districts, and the commission then chose one of its members to serve as mayor (J.A. 8a). The districts from which commissioners were elected were drawn along north-south lines (ibid.). The district to the west of Houston Avenue contained the highest concentration of blacks, and a black commissioner was elected from that district each year between 1954 and 1963 (J.A. 9a). By 1960, it appeared that a second district, east of Houston Avenue, would become predominantly black (ibid.). When the form of government was altered in 1963, three of the residency districts were redrawn along east-west lines thus fragmenting the growing black population by combining black residential areas with white ones (J.A. 10a-11a). Since 1963, the City has been governed by a seven-member council, elected at-large by majority vote (J.A. 9a-10a). The six non-mayoral council members are required to reside in specific districts; no residency requirements apply to the mayoral position (ibid.). The mayor has the right to cast a vote on each issue coming before the council, but he also assumes certain ceremonial responsibilities unique to his office (J.A. 10a). Members of the council are elected for two-year terms; three are elected in one year, and the remaining three and the mayor are elected the following year (ibid.). One black councilman, an incumbent from the pre-1963 single-member district system, has been elected continuously since 1963 (J.A. 40a). He has never faced a white opponent. In recent years, however, he has not been the choice of the black voters in Port Arthur (ibid.). A high level of racial tension has existed in the City since December 29, 1974, when a white policeman shot a black youth who was escaping from police custody (J.A. 12a). The effects of the increased racial tension were felt dramatically in the campaign preceding the April 1977, councilmanic elections (J.A. 13a). As part of their campaign against the slate of black candidates, members of the City Council placed full-page advertisements in the local newspaper warning that a black minister from outside Port Arthur was attempting "to rally the local black community to gain control of the city government" (ibid.). The election results showed a high degree of racial bloc voting, and the black candidates lost every race by a narrow margin (J.A. 14a, 177a-178a). In April 1977, following these racially polarized councilmanic elections, the City began actively pursuing consolidation with neighboring communities (J.A. 14a-16a). Racial considerations (linked to concern -- created by the 1977 councilmanic elections -- that blacks were becoming an increasingly powerful political force in the City) provided the incentive for the increased drive for consolidation (J.A. 66a-67a). As a result, the neighboring cities of Pear Ridge and Lakeview were consolidated with Port Arthur on December 1, 1977, following referenda elections in Port Arthur and in each of the other communities (J.A. 14a-22a, 180a-182a). According to the 1980 Census, Pear Ridge and Lakeview contributed 6,008 people, only 80 of whom were black (J.A. 22a). Of the total population of the enlarged city, the added areas contained 16% of the whites and less than 1% of the blacks (J.A. 23a). Approximately six months after consolidation with Pear Ridge and Lakeview, the City annexed an unincorporated area known as Sabine Pass (J.A. 25a). /2/ The annexed area contributed 501 persons, according to the 1980 census, of whom 31 were black and 18 were Hispanic (ibid.). The effect of both expansions was to decrease the percentage of the total population in Port Arthur that was black from 45.21% to 40.56% (J.A. 6a). During the next three years, the City considered several new electoral plans that would take into account the newly added territory. An advisory committee, established in November 1977, divided along racial lines on the question whether to keep the at-large system of election or to return to the pre-1963 single member district system (J.A. 23a-24a). The recommendation of the predominantly white majority of the committee, which was adopted by ordinance on January 16, 1978, provided for the addition of an eighth council member and retained the at-large system with residency requirements (the "7-0-1" plan) /3/ (J.A. 24a). A minority report, filed by five of the seven black members of the committee, proposed a single-member district plan, but it was not read at the public hearings on the recommended plan (ibid.). On January 21, 1978, the City submitted the 7-0-1 plan to the Attorney General for preclearance under Section 5 of the Voting Rights Act (J.A. 41a-42a). The Attorney General interposed a timely objection to the plan because it did not sufficiently neutralize the dilution of black voting strength caused by the consolidation with Pear Ridge and Lakeview (J.A. 42a). The Attorney General expressly offered, however, to reconsider his objection should the City change its plan to elect the council members from "fairly-drawn single-member districts" (ibid.). /4/ On February 5, 1980, the City requested the Attorney General to reconsider his objection to the 7-0-1 plan (J.A. 42a). At the same time the City requested pre-clearance of the annexation of Sabine Pass and a new election plan that enlarged the City Council to nine members, elected at-large by majority vote and with residency requirements (the "8-0-1" plan) (J.A. 26a, 42a). /5/ The Attorney General denied the request to reconsider his objection to the 7-0-1 plan and objected to the 8-0-1 plan because the City had not adopted single-member districts. The Attorney General also objected to the annexation of Sabine Pass because that action "exacerbated the dilution of minority voting strength caused by the earlier consolidation" (J.A. 42a-43a). 2. On March 12, 1980, the City filed the instant suit in the United States District Court for the District of Columbia seeking a declaratory judgment under Section 5 of the Voting Rights Act that the 8-0-1 plan did not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. The United States was named as defendant and, in addition, four black residents of Port Arthur were permitted to intervene as defendants. While the suit was pending, the City accepted the offer of the Community Relations Service of the United States Department of Justice to mediate the dispute. The City chose an all-white team to represent it in negotiations, and, as the district court found (J.A. 28a), "there is some evidence to suggest that members of the City's team perceived their role as representing the white citizens of Port Arthur." A group of black citizens formed a team to represent the black community (ibid.). The white team proposed, as a "bottom line," a nine-member council with the major elected at-large, four members elected from single-member districts and four members to be elected at-large from residency districts identical to the single-member districts (the "4-4-1" plan) (J.A. 29a-30a). The black team rejected the 4-4-1 plan as failing to provide the minority community representation commensurate with its political strength (J.A. 31a). /6/ Thereafter, a committee from the City's team, using city resources, organized a petition drive to have the 4-4-1 plan placed on a special ballot as an alternative to a plan that had been proposed by the City firefighters /7/ in a special referendum election (ibid.). The campaign waged by the committee emphasized the racial breakdown of support for the two plans and reminded voters to "keep our city government in the hands of all people" (J.A. 31a-32a) (emphasis in original). The results of the referendum election showed significant racial polarization, with the 4-4-1 plan being adopted by a majority of the voters (J.A. 32a). /8/ On September 15, 1980, the city moved to amend its complaint, seeking a declaratory judgment that the newly approved 4-4-1 plan did not have the purpose and would not have the effect of denying or abridging the right to vote on account of race or color (J.A. 44a). 3. The district court, relying on the decisions in City of Petersburg v. United States, 354 F. Supp. 1021 (D.D.C. 1972), aff'd, 410 U.S. 962 (1973), and City of Richmond v. United States, 422 U.S. 358 (1975), concluded that the expansion of Port Arthur "significantly altered the racial balance in the City" (J.A. 52a), and that none of the electoral plans proposed by the City afforded black voters "the requisite opportunity to achieve representation commensurate with their voting strength in the enlarged community" (J.A. 54a). The court found that blacks comprise 40.56% of the population of the enlarged city, and approximately 35% of the voting-age population, but the combination of racial-bloc voting with both a majority vote and a residency requirement would prevent black voters from having an influence over the election under either the 8-0-1 or the 4-4-1 plan anywhere near their strength in the enlarged city (J.A. 54a-58a, 62a). /9/ The court also found that instead of producing elected officials who are responsive to the needs of the entire city, the at-large system resulted in white council members, elected by racial bloc voting, who are wholly inattentive to the needs of black citizens in the areas of municipal employment and city services (J.A. 55a). The court therefore found that both the 4-4-1 and the 8-0-1 plan had the effect of denying or abridging the right to vote on account of race. In addition, the district court noted several "indicia of an original discriminatory purpose" (J.A. 67a) behind the expansion of Port Arthur's boundaries, demonstrating "a desire to abridge the electoral rights of the black population" (J.A. 66a). The district court concluded (J.A. 67a-68a), however, that there were legitimate purposes behind the annexation and consolidation and therefore they were not precluded from receiving preclearance under Section 5 as being improperly motivated. See City of Richmond V. United States, supra, 422 U.S. at 378-379. With regard to whether the voting changes the City submitted had an impermissible purpose, the court concluded that both the 4-4-1 and 8-0-1 plans were adopted with an "invidious motive" (J.A. 70a). The court summarized the evidence leading to this conclusion as follows (ibid.): (T)he specter of discrimination was raised by the 1963 redrawing of district lines, and its continued existence was marked by the April 1977, campaign advertisements. The severely polarized councilmanic election results then sparked a mysteriously sudden push for expansion which significantly diminished black voting strength. Rather than neutralizing the effect of this dilution, City officials devised the 8-0-1 and 4-4-1 plans which guaranteed that blacks would remain underrepresented on the City Council by comparison to their numerical strength in the enlarged community. Because of this invidious motive, we condemn the voting plans. The City offered several justifications for the two plans, all of which the court found to be "pretextual" and "specious" (J.A. 71a-72a). The court found that enlargement of the council and imposition of residency requirements could not have the purported purpose of enhancing representation of the minority community because of the severe racial polarization in voting (ibid.). /10/ It also found that, while at-large elections often produce representatives who are more responsive to the interests of a city as a whole rather than to those of a particular district, in this case the at-large council members have been wholly unresponsive to the interests of minority citizens (J.A. 72a-73a). Finally, the court found that any alleged intention to increase minority representation by the 4-4-1 plan was "overriden (sic) by the desire of white Port Arthurians to maintain undisputed control of the municipal government" (J.A. 72a). The City did not appeal from the district court's June 12, 1981 decision. 4. Subsequent to the district court's June 12, 1981, decision, which conditioned approval of the expansions upon an electoral system designed to provide the requisite representation to black voters, the City on June 29, 1981, submitted an amended plan in a Report to the Court. After negotiations, however, the City and the United States jointly submitted a new plan on July 8, 1981, which provided for six single-member district seats and t ree at-large seats (the "4-2-3" Plan) /11/ (J.A. 79a). The plan provided for four single-member districts, in two of which blacks constituted a majority (79% and 62.78% black), and the plan also combined the two majority black districts into a fifth single-member district (70.83% black) and the two remaining districts into a sixth district (10.98% black) /12/ (ibid,; City of Port Arthur's Report to the Court Pursuant To Order of June 12, 1981 (filed June 29, 1981)). The fifth and sixth districts would serve as residency districts for the two non-mayoral, at-large seats, and the mayor would be elected at-large with no residency requirements (ibid.). All elections would be by majority vote (ibid.). The United States expressed reservations about the continued use of the at-large feature and about the majority vote requirement (J.A. 80a-81a). Acknowledging the district court's conclusion in its June 12 opinion that "the black population effectively has no opportunity to elect at-large council members," the United States nonetheless concluded that the ability of the black community to influence the outcome of three single-member seats lessened the discriminatory impact of the remaining at-large feature (J.A. 80a). The United States also expressed a distinct preference for a plurality win provision for the at-large seats in order to increase the possibility of minority influence, but concluded that the City's refusal to incorporate such a provision did not justify denying preclearance of the entire plan (J.A. 81a). Intervenors also expressed their reservations about the continued use of the at-large seats and, in addition, asserted that "(s)ubstituting a plurality requirement for three or even two of the at-large positions in the plan would allow the City to exercise all legitimate political and governmental prerogatives while affording the black population an opportunity to influence the election of the three at-large council people" (J.A. 84a). /13/ The district court accepted the bulk of the City's "4-2-3 plan," but, with one judge dissenting on this point, conditioned its preclearance on a plurality vote requirement in the election of the two non-mayoral, at-large councilmanic positions (J.A. 87a-88a). The district court stated that the proposed plan "insufficiently neutralizes the adverse impact upon minority voting strength which resulted from the expansion of Port Arthur's borders" (J.A. 87a). SUMMARY OF ARGUMENT I. A. The United States District Court for the District of Columbia plays an extraordinary role in implementing Section 5 of the Voting Rights Act without its express approval (or preclearance by the Attorney General), no "standard, practice, or procedure with respect to voting" can be implemented by any jurisdiction covered by the Act. 42 U.S. 1973c. Although the district court's responsibilities under Section 5 are generally "heavy," City of Richmond V. United States, 376 F.Supp. 1344, 1346 (D.D.C. 1974), rev'd on other grounds, 422 U.S. 358 (1975), nowhere are they more substantial than in reviewing the validity of annexations of predominantly white areas by political subdivisions subject to the Act. See City of Richmond V. United States, 422 U.S. 358 (1975); Perkins V. Matthews, 400 U.S. 379 (1971). Annexations pose a unique problem because they are not per se impermissible even if they will have a clear dilutive effect on minority voting strength. See City of Richmond V. United States, supra, 422 U.S. at 374-375, 378. Instead, the annexation should be precleared if supported by non-racial justifications and if a new voting plan for the new community "fairly reflects the strength of the Negro community as it exists after the annexation." Id. at 371. In attempting to ease the litigating burden on the cities subject to the Act, the district court has been invested with "remedial device" of conditioning preclearance on modifications in the city's voting plan. See City of Rome V. United States, 446 U.S. 156, 188 (Blackmun, J., concurring). See also City of Richmond V. United States, supra, 422 U.S. at 370. In exercising this remedial authority, the district court must consider every aspect of the plan to assure that there are no subtle discriminatory purposes or effects, masked by an otherwise facially valid plan, that will cause the plan to undervalue the voting strength of the minority population in the expanded community. Cf. South Carolina V. Katzenbach, 383 U.S. 301, 335 (1966). The district court's authority to consider all facets of the plan is well supported by the legislative concern, expressed in 1975 when the Voting Rights Act was extended to cover Texas, that historically subtle forms of discrimination had been practiced to guarantee that minorities could never obtain any real political power in Texas communities. See S. Rep. No. 94-295, 94th Cong., 1st Sess 27-28 (1975): H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 18-19 (1975). It cannot be the rule, as appellant contends, that a district court exclusively commissioned to protect against attempts to dilute black voting strength is permitted to consider no more than whether the black community has obtained arguably proportional representation. Such a showing can be sufficient in a proper case; but where the district court has found two previous plans to be blatantly discriminatory in purpose and effect, it is justified in examining the newest proposal carefully to make sure that it does not carry forward discrete features that previously had been found offensive. If such features appear, and the record supports a finding that such features violate the Act when incorporated as a part of the overall plan, then, as a court of equity, it has full authority to condition preclearance on modification of those features. B. In this case the district court had specifically found, and its finding has never been challenged by appellant, that "black voters of the City essentially have no role in determining the outcome of the * * * at-large election(s)" (J.A. 57a; emphasis added). This lack of any influence on the outcome has allowed at-large representatives to be wholly unresponsive to black interests in Port Arthur (J.A. 35a-36a). Thus, although the plan generally goes far toward providing blacks a fair opportunity to influence the outcome in these districts, the retention of the at-large feature still would dilute voting strength by freezing blacks out of the electoral process for two pivotal seats. The district court, however, recognized the public interest in at-large seats and allowed the City to retain them; it found no similar public interest in the majority vote requirement and ordered it modified to protect the minority's legitimate interest in having some influence on those elections. The district court thus properly exercised its equitable discretion in making this simple modification in the City's overall plan. See Hecht C. V. Bowles, 321 U.S. 321, 329-330 (1944). C. Nothing in the district court's decision conflicts with this Court's decision in City of Richmond V. United States, supra. In Richmond this Court held that it is improper to condition approval of an annexation on a requirement that minority voting strength be commensurate with pre-annexation population strength, which would lead to over-representation of the minority group. This Court did not limit the district court to making a mathematical decision as to whether a particular plan was adequate to protect against dilution of minority voting rights. Compare City of Rome V. United States, supra, 446 U.S. at 187. In addition, the district court's decision in this case will not overvalue minority rights, but instead will merely give blacks an opportunity to have influence commensurate with their voting strength over whatever candidate is elected at-large to the city council in Port Arthur. II. The 4-2-3 plan submitted to the District Court was joined by the United States as a party-litigant seeking a reasonable resolution of a protracted litigation. Focusing largely on the three single-member seats that blacks could reasonably influence, we concluded that the plan probably satisfied City of Richmond and the district court's prior concerns. The district court, focusing on the at-large seats that blacks could not influence, and about which we expressed serious reservations, concluded that the plan required a modification of the majority-vote requirement for those seats. Having agreed to submit the plan to the district court, both parties expected it to review the plan and approve it only if it were convinced that no dilution of the black vote continued. Based on the legitimate concern the court had with the unusual effect of the at-large seats with a majority-vote requirement on black voting strength in Port Arthur, it was not improper for the court to decline to rubber stamp the plan containing two such seats. ARGUMENT I. THE DISTRICT COURT CORRECTLY CONDITIONED PRECLEARANCE OF THE CITY'S TERRITORIAL EXPANSION UPON MODIFICATION OF ITS PROPOSED ELECTION PLAN IN ORDER TO PROVIDE BLACKS IN THE ENLARGED COMMUNITY A FAIR OPPORTUNITY TO INFLUENCE THE OUTCOME OF ELECTIONS FOR THE TWO NON-MAYORAL, AT-LARGE POSITIONS A. In Reviewing An Electoral Plan Designed To Eliminate The Dilutive Effect On Minority Voting Of A City's Annexation, The District Court Sits As A Court Of Equity With Authority To Condition Preclearance On The Modification Of Any Part Of The Plan It Reasonably Concludes Has A Discriminatory Effect Or Purpose It is well settled that the requirements of Section 5 of the Voting Rights Act must be satisfied when a political subdivision, such as the City of Port Arthur, expands its territorial boundary. City of Rome V. United States, 446 U.S. 156, 187 (1980); City of Richmond V. United States, 422 U.S. 358, 367-368 (1975); City of Petersburg V. United States, 410 U.S. 962 (1973), aff'g, 354 F.Supp. 1021 (D.D.C. 1972); Perkins V. Matthews, 400 U.S. 379, 390-391 (1971). Application of the extraordinary requirements of Section 5 to annexations is justified because acquisition of surrounding communities, if predominantly white, can have either an intended or unintended dilutive effect on the minority's right to vote. See Perkins V. Matthews, supra, 400 U.S. at 390. /14/ As this Court recognized in Perkins, annexation can deny the right of suffrage "just as effectively as by wholly prohibiting the free exercise of the franchise." 400 U.S. 388, quoting Reynolds V. Sims, 377 U.S. 533, 555 (1964). Majority black populations, such as those in Richmond and Petersburg, Virginia, can be reduced to minorities overnight with an obvious corresponding loss of voting power. See City of Richmond V. United States, supra, 422 U.S. at 372; City of Petersburg V. United States, supra, 354 F.Supp. at 1024. Of equal concern, growing minority populations carrying the potential for the first exercise of real political power can be thwarted irreparably by annexations unless modifications are made in the electoral scheme to neutralize the dilutive effect of the boundary change. City of Rome V. United States, supra, 446 U.S. at 186-187; S.Rep. No. 94-295, 94th Cong., 1st Sess. 16 (1975). Because annexations involve complex social, economic and political issues that may determine the very ability of a city to exist, however, they are not treated the same as other electoral practices subject to Section 5 of the Voting Rights Act. See City of Richmond V. United States, supra, 422 U.S. at 374-375, 378. Even when the political subdivision is unable to prove that no part of the purpose or effect of the annexation was to impair minority voting strength, the annexation itself is not per se impermissible, so long as there are legitimate, non-racial reaons for the territorial expansion and the new city's electoral scheme incorporating the annexed region is designed to "fairly reflect() the strength of the Negro community as it exists after the annexation * * * ." City of Richmond V. United States, supra, 422 U.S. at 371. The latter inquiry could lead to endless litigation but for the adoption of the practice, expressly approved by this Court, of having the district court condition preclearance under Section 5 upon specific modifications in the electoral plan proposed by the political subdivision. See City of Richmond V. United States, supra, 422 U.S. at 370. /15/ The judicial process of suggesting modifications in a plan so that an otherwise improper annexation can be converted into an electoral change that is permissible under Section 5 of the Voting Rights Act, requires a careful balancing of the various interests involved with the paramount concern being to assure that Congress' intent under Section 5 to "banish the blight of racial discrimination in voting" is furthered. South Carolina V. Katzenbach, 383 U.S. 301, 308 (1966). The fashioning of such a plan is a classic exercise of equitable discretion by a district court. See City of Rome V. United States, supra, 446 U.S. at 188 (Blackmun, J., concurring) (describing the practice of conditioning approval on modifications as a "remedial device"). There is no fixed formula for measuring reasonable equivalence of voting strength. Nor, in circumstances such as these here -- where blacks are afforded a fair opportunity to influence the election in three of nine districts -- is it clear what additional measures may be necessary to ensure no compromise of minority voting rights as a result of annexation. That determination is, of necessity, a judgment call on which there can be reasonable differences of opinion. Compare Swann V. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971). If we are correct that the district court, in attempting to neutralize the dilutive effect on minority voting strength of the annexation of a predominantly white population, sits as a court of equity, then it follows that the court should be "the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. V. Bowles, 321 U.S. 321, 329-330 (1944). See also Swann V. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 15. The district court therefore was obligated to consider the City's election plan as a whole to assure that the political influence of blacks will be commensurate with their strength in the enlarged city. The City's submission regarding the district court's authority under the Voting Rights Act in annexation cases is that, if the City allows the black population in the expanded city a reasonable opportunity to elect three of nine members to the city council, /16/ then the district court has no authority whatsoever to consider the effect on the voting strength of blacks of any other feature of the plan. Taken to its logical extreme, the City's position would require a district court to preclear a plan that refused to allow blacks to vote at all outside of the districts in which they are given substantial control. Certainly nothing in City of Richmond's "reasonable equivalence" test supports such a result. Indeed, the facts in City of Richmond directly refute the City's proportional representation argument. Not only did the single-member district plan in Richmond provide blacks with a better opportunity to elect four of the nine members of the City Council than does Port Arthur's plan, but in the fifth district blacks comprised 40.9% and thus might be able to exercise a swing vote influence. 422 U.S. at 372. As we discuss more fully later (see pages 23-25, infra), with a majority vote requirement, blacks in Port Arthur will not exercise any influence over elections in the at-large districts. City of Richmond thus does not support appellant's argument that the district court lacked authority to review the at-large features of this plan. In addition, such an approach would be inconsistent with Congress's intent in extending the Voting Rights Act to Texas. The Senate Report on the extension of the Act pointed out (S. Rep. No. 94-295, 94th Cong., 1st Sess. 27-28 (1975)): Election law changes which dilute minority political power in Texas are widespread in the wake of recent emergence of minority attempts to exercise the right to 7 vote. * * * The at-large structure, with accompanying variations of the majority run-off, numbered place system, is used extensively among the 40 largest cities in Texas (including Port Arthur). And, under state statute, the countless school districts in Texas elect at-large with an option to adopt the majority run-off, numbered place system. These structures effectively deny Mexican-American and black voters in Texas political access in terms of recruitment, nomination, election and ultimately, representation. H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 18-19 (1975). Indeed, the hearings and debates in 1975 demonstrate a clear awareness of, and concern about, the widespread use in Texas of, inter alia, at-large elections coupled with majority vote requirements to halt the expanding influence of minorities in local Texas elections. See, e.g., 121 Cong. Rec. 16251 (Rep. Edwards); id. at 16278 (Rep. Roybal); id. at 16280 (Rep. Jordan); id. at 16288, 16881 (Rep. Badillo); id. at 16911-16912 (Rep. Roybal); id. at 16915 (Rep. Rangel); Extension of the Voting Rights Act of 1965: Hearings Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. 462, 491-492, 524, 992 (1975) (hereinafter Senate Hearings); Extension of the Voting Rights Act: Hearings on H.R. 939, etc., Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 389, 404, 519-521 (1975). Congress extended the Section 5 requirements of the Voting Rights Act to Texas to assure that such efforts in the future would be subject to the scrutiny of preclearance. It cannot reasonably be assumed that Congress would expect the judicial inquiry into the very practices it found to be pervasive and offensive enough to warrant application of Section 5 to Texas to be foreclosed simply because the City has begrudgingly moved in the direction of proportional representation with regard to certain facets of its electoral plan. Contrary to appellant's simplistic view of Section 5, "adequacy of representation is not measured solely by the black community's ability to elect its first-choice candidate." City of Rome V. United States, 472 F.Supp. 221, 248 (D.D.C. 1975), aff'd, 446 U.S. 156 (1980). Indeed, this observation is as true when minorities claim that they have an insufficient opportunity to choose their own candidate as it is when the majority claims that the minority's representation is roughly proportional. See United Jewish Organizations V. Carey, 430 U.S. 144, 172-173 (1977) (Brennan, J., concurring in part). A claim of proportional representation cannot pretermit judicial review because the City's effort "might be a 'contrivance to segregate' the group" or at least have that effect and thereby perpetuate discrimination. Id. at 172, quoting Wright V. Rockefeller, 376 U.S. 52, 58 (1964). We thus submit that the validity of the district court's exercise of equitable discretion cannot be judged solely on a mathematical basis. Instead, the proper analysis must be to compare the findings of the district court with the record to determine whether the evidence shows a clear abuse by the court. /17/ B. In Its June 12, 1981 Opinion, The District Court Found The City's Use Of At-Large Elections With A Majority Vote Requirement In Prior Electoral Plans Had Both A Discriminatory Purpose And A Discriminatory Effect Appellant characterizes (Br. 17) the district court's order modifying the majority vote requirement in the at-large elections as "unexplained." The order itself is quite terse; it simply states that the retention of the majority vote feature "insufficiently neutralizes the adverse impact upon minority voting strength which resulted from the expansion of Port Arthur's borders" (J.A. 87a). But the July 14 order at issue here must be read in light of the findings and conclusions of the district court in its June 12 opinion regarding the two prior plans submitted for preclearance. Modification of the proposed plan to require a plurality vote provision for the at-large seats was, in the court's view, necessary to give black voters a meaningful opportunity to participate in the political process in the enlarged community. /18/ For the reasons that follow, we are unable to fault that conclusion as an abuse of judicial discretion, even though it does not fully comport with the compromise that was satisfactory to the United States. The City presented to the district court for preclearance, in connection with its territorial expansion, two plans that the court concluded had not only a discriminatory effect upon the rights of black voters but also were "enacted with an invidious purpose" (J.A. 70a). Both the "8-0-1" and the "4-4-1" plan relied upon the use of at-large elections by majority vote to accomplish this invidious purpose and effect. The court's uncontested finding that at-large elections by majority vote in Port Arthur have a discriminatory effect upon black voters was based upon several factors. First, the court found that the black and white communities in Port Arthur have become seriously polarized as a result of discrimination suffered by blacks and that this polarization was manifested by extreme racial bloc voting. Moreover, city officials who have been elected by "almost total bloc voting by race" have been systematically unresponsive to the needs and interests of black citizens. /19/ Second, within the context of racial bloc voting, the majority vote /20/ and residency requirements for at-large elections promoted head-to-head contests between black and white candidates in which black voters, being in the minority, invariably failed to elect the candidate of their choice (J.A. 56a). /21/ Of even greater concern is the court's finding that the use of at-large elections decided by majority vote means that "black voters of the City essentially have no role in determining the outcome of the * * * at-large elections for council seats" (J.A. 57a, emphasis added). In the absence of racial bloc voting, a group the size of the black population of Port Arthur would ordinarily be expected to have a substantial influence over at-large elections. The district court found, however, that "(a)lthough theoretically possible, black Port Arthurians have not even wielded a swing vote in at-large races between two or more white contestants" (ibid). Thus, the majority vote feature has been a blatant obstacle to the ability of black citizens to have any influence on the elections of candidates for at-large seats. In addition to these findings of the discriminatory effect of the post-expansion electoral plans, the court also concluded that those plans were devised with a racially discriminatory purpose. In essence, the court found that every time black voters began to pose a serious threat to white domination of City politics, the City took steps to curb black influence. Thus, in 1963, at a time when the black population was expanding eastward in a way that suggested a possible black majority in an additional district, the district lines were redrawn along an east-west axis thereby fragmenting the black population and diluting its effect upon the city council elections (J.A. 9a-11a, 66a). Later, during the campaign for the 1977 council elections, at a time when serious racial tensions existed in the City, the incumbent City Council members sponsored newspaper advertisements which the court found were "intended to alert the white population to the serious political challenge posed by black Port Arthurians" (J.A. 66a). The severely racially-polarized election results then "sparked a mysteriously sudden push for expansion (of the City's boundaries) which significantly diminished black voting strength" (J.A. 70a). City officials then devised two electoral plans for the expanded city (the "8-0-1" and "4-4-1" plans) which, "(r)ather than neutralizing the effect of this dilution" (J.A. 70a), assured a continuing diminution in black voting rights. The court found that the City Council, in drawing up its post-annexation plans, "stubbornly clung to the concept of at-large elections where single-shot voting was impeded by residency and majority vote requirements" and with knowledge that "City politics were seriously polarized by race" (ibid.). Expressing a "desire to minimize the intrusion of th(e) federal court into the affairs of the City," /22/ the court declined to condition preclearance of the expansion upon conversion to an all single-member district system (J.A. 74a). Instead, it invited the City to "develop an electoral system of its own design" (ibid.). At the same time, having concluded that the prior post-expansion plans (the "8-0-1" and the "4-4-1") using at-large elections with a majority vote requirement were devised with a discriminatory purpose and had a serious inhibiting effect on minority influence in the at-large contests (J.A. 69a-73a), the district court made plain its doubt about the legality of any new plan that contained such a majority vote feature. /23/ In light of the record before the district court regarding the past use by the City of the majority vote requirement in conjunction with at-large elections, the court's modification of that requirement cannot be regarded as so devoid of factual basis as to be an inappropriate exercise of judicial discretion. /24/ Our submission in this case, in contrast to that of appellant, is very narrow. We do not generally oppose all at-large elections with majority vote requirements or mixed at-large and single-member district plans. Our willingness to join in submitting the City's final plan for approval by the district court is ample evidence of our inclination to approve such plans. But most cities are not disadvantaged by racial polarization as significant as was found in Port Arthur. The district court was obviously offended by the City's use of a scheme -- at-large elections -- that purports to encourage elected officials to be responsive to all segments of the community, but which when coupled with a majority vote requirement in a context of rigid racial bloc voting will result in a significant minority of the City of Port Arthur being ousted from any role at all in influencing these city-wide officials. The action of the district court simply fulfills the promise inherent in an at-large feature: that all voters in the City will be represented by the elected councilmember. In the unusual setting of Port Arthur, Texas, the district court's judgment is an equitable one and should be upheld. C. Appellant Is Incorrect In Asserting That The Plan Approved By The District Court Goes Beyond What Is Required Under This Court's Decision In City of Richmond Appellant argues (Br. 19) that substitution of a plurality win provision "tilts" the plan toward over-representation of black voters. As discussed supra, however, the at-large feature of the 4-2-3 plan was employed on a larger scale by the City in its prior plans to prevent black voters from having any opportunity to participate meaningfully in the electoral process. Use of a plurality win provision does not provide the 35% voting age black population with a significant opportunity actually to elect the candidate of its choice to either of the at-large seats, but it does assure it some influence over the outcome of those elections through its ability to concentrate its vote behind a single candidate (see discussion supra, page 23 note 20). This is an influence that the district court specifically found simply will not exist in the plan as submitted to the district court. Contrary to the City's assertion (Br. 18), the Attorney General did not state that the imposition of residency districts for the two at-large seats would give blacks "significant influence over" the candidate elected from the 70% black district. Rather the United States stated that the residency requirement would "assure that one of the at-large representatives will reside in, and hopefully represent the interest of, that portion of the city where a sizeable majority of the black population resides" (J.A. 81a, emphasis added). /25/ At the same time, we also observed (id. at 80a-81a): (T)he application of a majority vote requirement to the at-large seats will make it more difficult, given the existing patterns of racial bloc voting, for the minority community to influence the selection of persons to fill those seats. Minority influence on those positions would be increased if the two at-large seats (excluding the mayor) were run on a plurality win system. The district court viewed this observation as sufficiently compelling to insist that the City's electoral plan be modified accordingly. /26/ Against the background of this case, that judgment is entitled to be upheld. II. THE DISTRICT COURT DID NOT ERR IN REVIEWING INDEPENDENTLY THE CITY'S ELECTORAL PLAN EVEN THOUGH THE UNITED STATES HAD AGREED TO SETTLE THE LITIGATION ON THE BASIS OF THAT PLAN The City argues (Br. 20-21) that the district court "failed to give proper weight to the Attorney General's determination that the 4-2-3 plan satisfied the Voting Rights Act." In addition, the City, throughout its brief, characterizes the district court's error as its refusal to approve the plan jointly submitted by the City and the United States. The district court committed no legal error in declining to rubber stamp our negotiated settlement with the City. Section 5 assigns primary responsibility to the United States District Court for the District of Columbia to review voting changes submitted to it for preclearance. /27/ While the Attorney General becomes a party-litigant on behalf of the United States in any such suit he is not in such circumstances assuming his special role under Section 5 as the alternate decision-maker to the court. Thus, the determination of whether a particular plan has been shown to be free of discriminatory purpose and effect rests ultimately with the district court following commencement of a Section 5 suit -- whether or not agreement can be obtained from the Attorney General. Following the district court's denial of the City's request for declaratory judgment concerning the 8-0-1 and 4-4-1 plans and its order conditioning preclearance upon adoption of a new electoral system satisfying the concerns expressed in the court's June 12 opinion, the City and the United States jointly submitted to the Court the 4-2-3 plan at issue in this appeal. /28/ The views stated in the Joint Submission were those of the United States in its role as a party litigant, in the context of a negotiated compromise, designed to resolve the litigative issue between the United States and the City. Having placed the plan before the district court, the City agreed to let that court make the determination whether the plan satisified Section 5. On that issue, the district court properly exercised its independent judgment in concluding that a relatively small modification was required. In making its determination, the district court considered the fact that the United States was willing to accept the 4-2-3 proposed plan as a compromise resolution of the lawsuit. In the Joint Submission, we expressly acknowledged that the question was a close one, and we so advised the court (see page 10, supra). In searching for a plan that equitably protected the rights of the blacks and the prerogatives of the City, the district court viewed the matter differently, as it was fully empowered to do. The fact that the plan was jointly submitted with the United States does not affect the propriety of the district court's decree. CONCLUSION The judgment of the district court should be affirmed. Respectfully submitted. REX E. LEE Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General CARTER G. PHILLIPS Assistant to the Solicitor General JESSICA DUNSAY SILVER MARIE E. KLIMESZ Attorneys JUNE 1982 /1/ Between six and seven percent of the City's population is composed of Mexican-Americans (J.A. 7a). In using census data to calculate the percentage of the population comprised by whites, the court assumed that the Mexican-Americans had also been included within the "white" category and therefore subtracted them, as well as blacks, from the total population to arrive at the figure for whites (J.A. 5a-7a n.5, 23a n.80). /2/ Under Texas law, incorporated cities join together by the process of consolidation. Unincorporated areas, however, may be annexed by municipalities authorized to do so by law. Consolidation requires the consent of the voters of each area. Annexation may be accomplished even over the protest of residents of either community. See generally 39 Tex.Jur.2d, Rev., Municipal Corporations Sections 61 et seq. and 96-97 (1976). /3/ We adopt here the shorthand reference system used by the district court for describing the various electoral plans. The "7" refers to seven at-large council seats, the "0" to the fact that no members were to be elected from single-member districts, and the "1" to the seat held by the mayor. /4/ The City's attempt to implement the voting changes adopted in conjunction with the consolidation, while the request for preclearance was pending, was challenged by black voters. A three-judge court in Texas enjoined implementation. Mosely V. Sadler, No.B-78-69-CA (E.D.Tex.Mar.27,1978) (J.A. 42a). /5/ The residency districts were drawn so as to create two predominantly black districts, with a third projected to become majority black by 1984 or 1985 (J.A. 26a). /6/ At the time the plan was formulated, the City's demographer estimated that the four districts would be 84.23%, 12.48%, 06.85%, and 63.95% black. /7/ The firefighters' plan called for six members of a nine-member council to be elected from single-member districts, with the mayor and the two remaining council members to be elected at-large (the "2-6-1" plan) (J.A. 27a). The firefighters successfully petitioned to have this proposal placed on the special referendum ballot. /8/ The United States sought to enjoin the referendum election before a three-judge court in the Eastern District of Texas on the ground that the City wanted to implement the voting changes occasioned by the unprecleared consolidation and annexation. That court permitted the election to proceed, however, and, on September 5, 1980, allowed the city to certify the city charter amendment for the "sole and limited purpose of complete submission" of the amendment to the court below in which the city's declaratory judgment action concerning the 8-0-1 plan was then pending. United States V. City of Port Arthur, C.A. No. B-80-216-CA (E.D. Tex.) (emphasis in original) (J.S.App. 43a-44a). /9/ The court also concluded that the 6-0-1 plan, which preceded the expansion, would fail to insure the black community an opportunity to obtain representation commensurate with its voting strength in the enlarged community (J.A. 62a-63a). /10/ The court also found that any suggestion that an at-large system would enhance the position of Mexican-Americans was based upon the false assumptions that Hispanics were evenly distributed throughout the City and that whites would support a Mexican-American candidate out of a sense of fairness (J.A. 72a). Given that the City had amended its charter to permit a change in the electoral system, the court also rejected the City's contention that it was without power to change from an all at-large system (ibid.). The court also found "quite tenuous" the suggestion that Port Arthur residents continued to associate the single-member district system with the corruption that was present under the ward system of the 1950's (ibid.). /11/ Reference to this plan as the "4-2-3" plan, which deviates from the system explained page 4 note 3, supra, is necessary in order to distinguish it from the "2-6-1" plan discussed previously, see page 6 note 7, supra. /12/ The majority white districts which form the sixth district are 18.13% and 3.99% black. /13/ Two intervenors objected to the plan, but two others, with reservations, accepted the plan "in light of the Justice Department's acquiescence" and the need to have a new City Council elected without undue delay (J.A. 84a). /14/ When it extended the Voting Rights Act in 1975 for an additional 7 years, Congress was painfully aware of this phenomenon. In describing the "continuing need for this preclearance mechanism" the Senate Report observed: As registration and voting of minority citizens increases, other measures may be resorted to which would dilute increasing minority voting strength. Such other measures may include switching to at-large elections, (and) annexations of predominantly white areas * * * . S. Rep. No. 94-295, 94th Cong., 1st Sess. 16 (1975) (emphasis added), citing Civil Rights Commission, The Voting Rights Act: Ten Years After 204-207 (Jan. 1975). See also H.R. Rep. No. 94-196, 94th Cong., 1st Sess. 10 (1975); 121 Cong.Rec.16248, 16251 (1975) (Rep. Edwards); id. at 16277 (Rep. Roybal). /15/ Obviously, some plans, such as the first two (8-0-1 and 4-4-1) submitted by Port Arthur in this case, are so blatantly discriminatory in their purpose and effect that no simple modifications can save them. In such a situation, all that the district court can do is deny preclearance and send the city back to the drawing board with some general guidance. /16/ In attempting to show that the City's plan assures blacks reasonable equivalence of voting strength, appellant focuses exclusively and frequently (Br. 7, 9, 12, 15, n.14, 16, 17) on the proportion of the black voting age population, which is about 35% in the expanded city. Appellant cites (Br. 7 n.6) City of Rome as indicating this Court's "strong preference" for using voting age data. But this Court in City of Rome merely indicated its preference for both voting age data and general population data over voter registration data. 446 U.S. at 186 n.22. The Court expressed no preference between voting age and general population figures. The former indicate the immediate effect on representation of the City's plan and the latter indicate the likely long term consequences of the plan. Thus, to focus on the 35% is to devalue the potential black electoral strength, which may properly be accorded some weight in light of the small likelihood that blacks will be able to enlarge the number of candidates they can elect even after the voting age population grows. /17/ Even assuming that appellant is correct that the district court's discretion ends once the City has provided for proportional representation, the district court still would remain the primary judge of whether the minority's voting strength is equivalent to its size in the expanded city. Moreover, before the court's review of the at-large features of a mixed single-member, at-large scheme were pretermitted, we submit that the record would have to show that blacks have a virtual guarantee of proportional representation. Such a guarantee is quite dubious here in light of the variables that affect our ability to judge the City's electoral scheme. For instance, the black population in Port Arthur constitutes 40% of the expanded City, but only 35% of the voting age population. Obviously, a comparison between the percentage of controlled seats and either population statistic alone gives important information about either present or probable future representation. See note 16, supra. Thus, the district court could reasonably have regarded the differential in representation as something greater than two percent. Second, whether the black minority will be able consistently to choose a black candidate from District 4 is not wholly free of doubt. The 1980 census shows that the black population was 61.2%, somewhat lower than the estimates used by the district court (J.A. 30a-31a). This percentage is sufficiently low that it does raise at least a doubt as to the ability of blacks to prevail in elections in that district (J.A. 58a n.160). Although the district court was correct that in District 4, blacks are provided "the chance to elect a candidate of their choice" (ibid.), this hardly seems adequate to justify completely disregarding all other facets of the City's electoral plan. /18/ The City relies heavily (Br.8, 9, 12, 15, 18) upon the results of the interim elections for council members from the six single-member districts created by the plan now before the Court as demonstrating that the City of Richmond standard has been satisfied. However, we view the district court's action as prompted primarily by its concern about the use of a majority-win provision for the two nonmayoral at-large seats rather than about the single-member contests. Thus, we do not believe that the outcome of those elections would change the decision reached by the court. Since those elections involved only single-member districts they supply no insight into the effect of the majority vote feature on the at-large elections in the expanded community. The only election relevant to that issue was the at-large mayoral election where a white and a black man ran against each other in a run-off and the white candidate won (Br. Add. 16b). Thus, that election confirms the lack of influence blacks have in at-large elections with a majority-vote requirement. In addition, a single election is hardly a conclusive basis for declaring the findings of a court of equity to be erroneous. The elections are some evidence that blacks will have influence in the single-member districts, but it hardly warrants ignoring every other aspect of the plan. /19/ Unresponsiveness was demonstrated by the following factual findings: the black residential neighborhoods in the City were most in need of municipal improvements; the public library was relocated to, and a new civic center was built in, an area less accessible to most minority residents; black municipal employees disproportionately occupy lower paying positions; and there has been a disproportionately low number of blacks appointed to the City's boards and commissions (J.A. 35a-36a). /20/ A majority vote requirement can impede black voters from concentrating their vote behind one or a limited number of candidates. Assuming that the vote of the white community is divided among a number of candidates, the candidate thus favored by the black community has a good change of being elected. See City of Rome V. United States, 446 U.S. 156, 184 n.19 (1980). However, where there is a majority vote requirement, the candidate favored by the black community must compete in a run-off election in which the candidate favored by the white majority inevitably wins. /21/ The record contains testimony by several black candidates concerning the effect of the majority vote feature of the at-large elections in Port Arthur. There was testimony that blacks could not be elected at-large nor could the black community have any impact upon the at-large elections because of the combination of racial bloc voting and the majority vote requirement (Evans Dep. 31-32; Scott Dep. 11, 18, 20-21). A black candidate who has been elected to the school board contrasted the school board election system, which provides for multi-member, at-large elections with the winner determined by plurality vote, to the councilmanic elections (McElroy Dep. 6, 15-16). He stated that under the plurality win system, blacks have a much greater say about the outcome because blacks are able to concentrate their vote (see also Evans Dep. 32-33). Although one black council member has been elected at-large, he has enjoyed the benefits of incumbency since 1963 (when the city changed from the ward system to the at-large system) and has faced only black opponents since then (J.A. 40a). An analysis of voting patterns by race demonstrates that he has not been the choice of the black community in recent years (J.A. 40a, 59a). /22/ The court expressed reservations regarding its "authority to affect the at-large rule directly" in light of this Court's decision in Beer V. United States, 425 U.S. 130 (1976). Reliance on Beer in this context, however, was misplaced. In Beer, the district court was without authority to affect the at-large seats because, having existed without change since 1954, they were not subject to review under Section 5. Here, however, there was not only an enlargement of the City's boundaries, but also an expansion of the at-large system into the enlarged area. In this context, therefore, the at-large system was clearly subject to the preclearance requirements. In City of Petersburg V. United States, 354 F.Supp. 1021, 1031 (D.D.C. 1972), aff'd, 410 U.S. 962(1973), the district court approved the annexation only on condition that the city "shift from an at-large to a ward system of electing" its council members. That decision was approved by this Court in City of Richmond, supra, 422 U.S. at 370. Conversion to an all single-member system is one way of correcting the dilution caused by an annexation; the method employed by the district court here is another. The United States introduced into evidence, as a benchmark against which to measure the City's proposed plan under the City of Richmond standard, a fairly-drawn nine-member ward type plan (with the mayor to be selected from among the successful candidates as under the pre-1963 ward system) (J.A. 8a; Def. Exh. 134) under which black voters could reasonably expect to elect candidates of their choice in 4 of the 9 districts. As appellant notes (Br. 13), the United States concluded that a fairly-drawn single-member district plan with eight districts would not increase minority representation appreciably over the original 4-2-3 plan. We also agreed with appellant, however, that under an eight-member plan the black percentage in a fourth district might be "sufficiently high to exert a 'swing vote' influence" (J.A. 80a n.2). /23/ One advantage of a ward plan over a plan that relies upon at-large election is the greater sensitivity of the single-member system to demographic changes. Thus, while the at-large system with a majority vote requirement, in the context of racial bloc voting, is not fully responsive to the growth of black population unless it becomes a majority of the population city-wide, a single-member system reflects changes in residential neighborhoods as they occur along the scale toward city-wide majority. An at-large system with a majority win provision such as originally proposed by the "4-2-3" plan might well lock out black voters in Port Arthur unless and until they gain majority status or racial bloc voting ceases. Future annexation of white areas could prevent the former eventuality from occurring. The plurality win condition imposed by the district court's order would serve to ameliorate this lock-out effect. /24/ The decision below is in this respect highly particularized; the district court reviewed the newly proposed plan against the backdrop of two previous blatant attempts by the City to avoid complying with the requirements of Section 5 of the Voting Rights Act. In this context it is not surprising that the district court would take special care to scrutinize every aspect of the plan to make certain that features proposed previously to undermine black influence were not carried forward in more subtle fashion to protect white control in the City Council for the foreseeable future. In this respect, the district court was in a small way performing the very function envisioned for it by Congress when it enacted the Voting Rights Act. Section 5 was adopted to discourage cities from "contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees." South Carolina V. Katzenbach, supra, 383 U.S. at 335. See H.R. Rep. No. 89-439, 89th Cong., 1st Sess. 10-11 (1965); S. Rep. No. 89-162 (Pt. 3), 89th Cong., 1st Sess. 8, 12 (1965). /25/ In this case the imposition of a residency requirement for the at-large seats replaced the City's proposal of having numbered posts for those seats. City Of Port Arthur's Report To The Court Pursuant To Order Of June 12, 1981. Although both residency districts and numbered posts often have a dilutive effect upon minority voting strength because of their tendency to promote head-to-head contests, at least with a residency requirement there is a greater chance that the candidate elected from one district will have interests in common with the 70% black residents of that district. Nonetheless, it is clear that there are significant pockets of white voters in District 5 (the residency district for one of the at-large seats), from which a candidate with attitudes suitable to the white majority outside of that district could emerge. The district court recognized that the newly acquired Sabine Pass in District 5 might supply candidates who would not necessarily be influenced by blacks, who live within the same district, but who are not within very close geographic proximity. In addition, the 1981 elections show that Precinct 33 of the City, which is a predominantly white community within District 5, obviously has voting interests very different from the majority in that District. In the council-manic elections, that precinct supplied well over 50% of all the votes received by the white candidate, Cherry R. Ebeling (Br. Add. 4b). In addition, in the run-off race for mayor, Precinct 33 heavily supported the white candidate, while the black precincts (52-59 and 81) overwhelmingly voted for the black candidate (id. at 3b). /26/ The plan as modified should, in the long run, reduce the tendency of the voters in Port Arthur to vote in racial blocs. With plurality voting in the at-large seats, the candidates for those seats will almost certainly have to be somewhat solicitous of the black vote. Once black interests begin to be represented by white elected officials, then blacks should become less concerned about voting as a racial group. Moreover, without head-to-head contests split along racial lines, whites will have less incentive to vote as a racial bloc. Eventually, even with blacks holding a distinct minority of the City Council seats, race should become less of a factor in deciding how to vote. See Senate Hearings, supra, at 38, 67, 116 (effect of Voting Rights Act has been to reduce race-consciousness in elections). /27/ The City's argument turns the statutory scheme for the respective roles of the court and the Attorney General on its head. The statute contemplates that the district court will be the primary reviewer of voting changes of covered jurisdictions. See South Carolina V. Katzenbach, supra, 383 U.S. at 335; Roman, Section 5 of the Voting Rights Act: The Formation of an Extraordinary Federal Remedy, 22 Am. U.L. Rev. 111, 124 (1972). The administrative alternative of review by the Attorney General "merely gives the covered State a rapid method of rendering a new state election law enforceable." Allen V. State Board of Elections, 393 U.S. 544, 549 (1969). The Attorney General, in reviewing the changes submitted to him, applies legal principles and standards developed by the court. See 28 C.F.R. 51.39. /28/ We do not understand the City to argue that the Attorney General in fact precleared the 4-2-3 plan. Had he done so, there would have been no further judicial review under Section 5 of his determination. Allen V. State Board of Elections, 393 U.S. 544, 549-550 (1969). Neither should the views expressed by the United States in the Joint Submission be considered as tantamount to the preclearance of a plan submitted to the Attorney General under the procedures established by Section 5; see 28 C.F.R. 51.18-51.26.