author: WISDOM, Circuit Judge:

text:
    Dorothy TAYLOR et al., Plaintiffs-Appellees-Appellants, v. John J. McKEITHEN, Governor of Louisiana, et al., Defendants-Appellants-Appellees. Victor BUSSIE et al., Plaintiffs-Appellees-Appellants, v. The GOVERNOR OF LOUISIANA et al., Defendants-Appellants-Appellees (two cases). Emmitt J. DOUGLAS et al., Plaintiffs-Appellees-Appellants, v. John J. McKEITHEN, Individually and as Governor of Louisiana, et al., Defendants-Appellants-Appellees. Carroll G. MILLER et al., Plaintiffs-Appellees-Appellants, v. GOVERNOR OF LOUISIANA et al., Defendants-Appellants-Appellees.
    No. 71-2783.
    United States Court of Appeals, Fifth Circuit.
    Aug. 21, 1974.

      Thomas W. McFerrin, Asst. Atty. Gen., Baton Rouge, La., Adrian G. Duplantier, Nat G. Kiefer, Michael H. O’Keefe, New Orleans, La., for defendants-appellants.
    Claude Berwick Duval, Houma, La., amicus curiae.
    Stanley A. Halpin, Jr., New Orleans, La., Camille F. Gravel, Jr., Alexandria, La., Sam A. LeBlanc, III, New Orleans, La., Murphy W. Bell, Baton Rouge, La., Martin L. Feldman, Robert F. Collins, George M. Strickler, Jr., New Orleans, La., for plaintiffs-appellees.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   WISDOM, Circuit Judge:

This case involves a racial gerrymander not by a state legislature but by a federal district court. The trial judge was well intentioned, of course, but his plan for drawing the boundaries of four state senate voting districts in New Orleans cannot be considered “benign districting” as the Supreme Court used that term in remanding this case to the Court of Appeals.

This litigation started as a frontal attack on the self-reapportionment of the Louisiana legislature under Acts 107 and 108 of 1970. In 1971, in five suits the plaintiffs attacked the legislative reapportionment plan as violative of the one man, one vote principle and as racially discriminatory. The trial judge, the Honorable E. Gordon West, consolidated the cases and appointed a special master, Edward J. Steimel, to recommend a plan that would comply with legal standards for legislative apportionment. The trial judge approved the Steimel plan without any deviation. 333 F.Supp. 452. This Court affirmed the judgment, except with respect to four senatorial districts in Orleans and three in East Baton Rouge Parishes. As to these seven senatorial districts, we approved alternate plans submitted by interested state senators. The judgments of both courts represented an almost total defeat for the Louisiana Attorney General, who had defended the statutory reapportionment and had attacked the Steimel plan largely on the ground that it contained all single-member districts in both Houses, in disregard of state policy allowing multi-member districts.

The litigation has now narrowed to a dispute over senate districts 2, 3, 4, and 5, four of the seven senate districts in Orleans Parish. (The parish is coterminous with the City of New Orleans.) This Court approved a plan for these districts proposed by incumbent State Senators Adrian G. Duplantier, Ignatz G. Kiefer, Michael H. O’Keefe, and Theodore H. Hickey. The first three of these senators, all attorneys, were associated by the Attorney General as co-counsel for the State after we had remanded the case to the district court for a hearing on the special master’s plan; the district court first approved the plan without a hearing. The real adversaries here are these senators and Mrs. Dorothy Taylor, a black member of the Louisiana House of Representatives, who brought one of the class actions attacking Acts 107 and 108.

The United States Supreme Court, on Mrs. Taylor’s petition for writ of certiorari, remanded the case to our Court, 407 U.S. 191, 92 S.Ct, 1980, 32 L.Ed.2d 648, "because this record does not fully inform [the Supreme Court] of the precise nature of the litigation and because [the Supreme Court has] not had the benefit of the insight of the ‘Court of Appeals’.” The Supreme Court stated that the Court of Appeals “without opinion . . . adopted the Attorney General’s alternative division of New Orleans”. The Supreme Court, in its per curiam opinion, said:

An examination of the record in this case suggests that the Court of Appeals may have believed that benign districting by federal judges is itself unconstitutional gerrymandering even where (a) it is employed to overcome the residual effects of past state dilution of Negro voting strength and (b) the only alternative is to leave intact the traditional “safe” white districts. If that were in fact the reasoning of the lower court, then this petition would present an important federal question of the extent to which the broad equitable powers of a federal court, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 [91 S.Ct. 1267, 28 L.Ed.2d 554], are limited by the colorblind concept of Gomillion v. Lightfoot, 364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110], and Wright v. Rockefeller, 376 U.S. 52, 57, 67 [84 S.Ct. 603, 11 L.Ed.2d 512].

In this Court’s short, earlier decision we did not reach the important federal question that concerned the majority of the Supreme Court.

The district court, in effect, admittedly approved Steimel’s structuring of the four districts for the purpose of maximizing the black voting strength in two districts to ensure two safe black senate seats. But this racial gerrymander rested on a premise that was patently erroneous. It is true that the Senators’ plan relies heavily on historical boundaries, wards in the City of New Orleans. It is also true that the trial judge said: “as brought out in the evidence, it was this policy and these ‘historical’ boundaries that produced but two negro legislators during the Twentieth Century”. He concluded: “ ‘[Historical’ boundaries of voting districts i.n Louisiana reflect[ed] a history of racial discrimination. Adherence to the historical boundaries alluded to by objectors [had] been the prime reason why only two negroes [had] been allowed to sit in the Louisiana Legislature in the last 75 years.” The Supreme Court quoted this language in its opinion. It is understandable that this language should (unintentionally, of course) mislead the Supreme Court.

There is absolutely nothing in the record to support such a “finding”. As a statement of Louisiana history, it is an error of monumental magnitude.

The heavy concentration of black votes in Steimel districts 2 and 4 could be accomplished only by diluting the black vote to negligible effectiveness in districts 3 and 5 which would then become super-safe white districts. The Steimel districts disregarded historical boundaries and were as multi-sided as the “uncouth” gerrymandered district in Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. The Senators’ plan observed historical ward boundaries as nearly as possible, but differs as radically from the statutory plan embodied in Act 108 as jt differs from the Steimel plan. In contrast to the latter, the districts are compact, contiguous, mini-sided; and, considering the shrinking white population, the increasing black population, and the accelerating black registration in New Orleans, the Senators’ plan gave black voters in the four districts better access to participation in the election of state legislators than the Steimel plan. We did not and do not think that “the only alternative [to the Steimel plan was] to leave intact the traditional ‘safe’ white districts”.

Historically, there has never been any nexus whatever in Louisiana between the establishment of traditional political boundaries and the denial of access of blacks to the state legislature. In this century, until this Court compelled parish registrars of voters to register blacks and until the Voting Rights Act of 1965 was enacted and enforced, blacks could not be elected to the Louisiana legislature — to be blunt — because there were no black voters. It is as simple as that. Since adoption of the Louisiana Constitution of 1898 and until recently, the legislature disfranchised blacks overtly; it was never necessary for the legislature to resort to covert disenfranchisement of blacks by manipulating the boundaries of legislative voting districts.

This case, therefore, was not one of benign districting to overcome the residual effects of discriminatory districting. And the Senators’ alternative plan was, in our opinion, more effective than the district court’s gerrymander in allowing blacks access to the political processes involved in electing lawmakers responsive to the needs of their constituents-. Instead bf the case presenting the important constitutional and federal questions the Supreme Court raised, the case presented the question whether the district court’s purposeful, racial gerrymander was an abuse of judicial discretion.

On remand, this Court requested and received additional briefs. The New Orleans Senators, still in their capacity as co-counsel for the State, and Mrs. Taylor were, of course, the only parties to file briefs on the remand. We have fully reconsidered the case. With due deference to the Supreme Court, we must say that the record and Louisiana history compel us to adhere to our earlier decision. We see no purpose to be served by remanding the case for the district court to construct a “less drastic alternative”; for one black has already been elected from the Senators’ district 4, one of the districts the trial judge characterized as a “safe” white district from which it would be “impossible” to elect a black. The population and registration figures suggest that a black senator may also be elected from district 2; and in districts 2, 3, and 5 blacks have sufficient population and registration to have the balance of power.

A month after the Supreme Court remanded the case to this Court, Act 457 of 1972 became law. In this statute the Louisiana Legislature reapportioned itself in accordance with the district court’s plan as modified by the Court of Appeals.

We proceed now from this summary to a more thorough discussion of the case.

I.

As a result of Bannister v. Davis, E.D.La.1966, 263 F.Supp. 202, a three-judge court decision, the Louisiana legislature adopted Acts 3 and 4 of 1966, which reapportioned the Senate and the House of Representatives. In Bannister, the Court warned that multi-member districts “should be avoided whenever possible” because they “tend” toward “diluting voting strength” of minorities. 263 F.Supp. at 209. In 1970 the legislature enacted Acts 107 and 108, effective in 1971, reapportioning itself based on the 1970 census. The plan contained many districts with wide deviations from the norm and, notwithstanding the cautions in Bannister, had multi-member districts. Mr. Victor Bussie, a well-known labor leader in Louisiana, filed the first action attacking the reapportionment statutes; he asked the district court to fashion a reapportionment plan that would conform with the one ■ man, one vote principle. Shortly thereafter, Mrs. Dorothy Taylor, with other black plaintiffs, challenged the proposed reapportionment. Two other suits were filed. The three cases were consolidated with Bussie.

The court stayed all proceedings pending submission of the plan to the Attorney General of the United States as required by the Voting Rights Act of 1965, 42 U.S.C. § 1973c. The Attorney General concluded that the plan was racially discriminatory. The trial judge had previously appointed Mr. Edward J. Steimel as a special master to prepare a reapportionment plan. Mr. Steimel, Executive Director of the Public Affairs Research Council, a non-partisan organization, is highly respected generally and particularly as an expert in the field of reapportionment. Judge West instructed the master to hold hearings and, in devising a reapportionment proposal, to maintain the integrity of political division, natural and historical boundaries, “as nearly as possible.”

The special master held four days of hearings during which over a hundred persons were heard. Later, there were objections that he was biased for and against certain incumbents, and would not discuss alternate plans. The Attorney General and Mr. Bussie moved that he be dismissed as a master because of his bias. There is no evidence of bias, and the court dismissed the motion. The master submitted his plan to the district court on August 24, 1971. The court approved the plan that same day —without a hearing.

The decision was a complete victory for the plaintiffs. The one man, one vote principle was vindicated with remarkably small variations from the norm. What is more, there were no multi-member districts in the Senate or the House. In these major respects the plan was beyond reproach. The plaintiffs promptly moved for a new trial. In denying the motion, Judge West pointed out: “We have here the rather unusual situation of the plaintiffs having been given virtually everything they asked for in these cases, and now they, rather than the defendants, against whom judgment was rendered, are seeking a new trial to set their victory aside.”

This Court, on September 4, 1971, felt compelled to vacate the judgment and remand the case for a hearing before the district court under Rule 53(e)(2) to enable objectors to make known to the court their specific objections to the Steimel recommendation and to propose alternate plans. Time was of the essence. Candidates in the primary elections had to qualify by September 15, 1971.

The district court held a hearing on September 8, 1971. The Attorney General defended Acts 107 and 108, but by this time he had joined hands with Bussie. Bussie submitted no alternate proposals. His counsel and the Attorney General argued against single-member districts, questioned their constitutionality, and contended that the state’s policy of preserving historical boundaries should prevail, even if it resulted in multi-member districts. As noted earlier, the Attorney General, perhaps as a courtesy to Louisiana Senators, associated Senators Duplantier, Kiefer, and O’Keefe, all from New Orleans, as co-counsel for the State; Senator Hickey, not a lawyer, testified for the senators’ plan. By no coincidence, these senators are incumbents whose districts would be redistricted; two would oppose each other in Steimel District 3 and two oppose each other in Steimel District 5. They agreed with the Steimel plan as to the new districts 6, 7, and 8 in Orleans Parish but disagreed as to the four other proposed senatorial districts in districts 2, 3, 4, and 5. The Senators suggest that Steimel’s purpose was to get rid of two of the four incumbents; the trial judge thought the purpose of the senators’ plan was to avoid one incumbent running against another. We are not so naive as to doubt that the impact of the reapportionment on their political future affected their motives. But the validity of their alternate proposal stands on its own merits.

Meanwhile the Attorney General had moved that the case be heard by a three-judge court. The district judge denied the motion on the ground that the reapportionment legislation was patently unconstitutional.

In the hearing on September 8 the trial judge gave everyone an opportunity to be heard. The New Orleans Senators submitted maps showing their alternate plan for districts 2, 3, 4, and 5, and testified as to the merits of their plan. The remand had activated interests in other areas than New Orleans. Senator J. D. DeBlieux, for example, proposed an alternate plan for districts, 14, 15, and 16 in East Baton Rouge. Judge West noted that in “all fairness to the De-Blieux plan, it. must be said that it is equally as good, . . . but not necessarily any better” than the Steimel plan. The Republican State Central Committee filed an action opposing the Steimel plan and proposing a plan of its own; the action was consolidated with Bussie and the other cases. Representatives of Jefferson Parish objected to sharing four of its allotted representatives with other parishes. Mrs. Taylor recommended acceptance of the Steimel plan, but, filed two exhibits which, as Judge West said, “merely show that plans could be presented which are within acceptable deviation limits while at the same time giving the negro voters an even greater voter strength than does the court-approved plan”. Mr. Steimel was present, but was not called to testify. The trial judge reaffirmed his decision of August 24. He extended to September 16 the filing date for candidates to qualify in primary elections.

This Court heard the expedited appeal on September 14, 1971. The Attorney General and Bussie filed a joint brief on appeal, reiterating their arguments before the district court. The New Orleans Senators and others filed briefs in support of their alternate plans. We issued our judgment on the same day we heard the argument, affirming the district court almost completely. We agreed that a three-judge court was unnecessary. We agreed that the Steimel plan complied with the one man, one vote principle; both the Steimel plan for the entire state and the Senators’ plan for Senate districts 2, 3, 4, and 5 allow deviations from the norm well within acceptable limits. We reaffirmed approval of the principle, for Louisiana, of single-member districts for both houses. We disagreed with the district court only with respect to four senatorial districts in Orleans and three in East Baton Rouge Parishes.

II.

The trial judge was “surprised” when the plaintiffs moved for a new trial. We were astonished when Mrs. Taylor filed a petition for certiorari. In the four senatorial districts here involved, blacks have a greater opportunity to make their voting power felt under the Senators’ plan than under. the Steimel plan. The Senators were more realistic, perhaps more aware of the political aspects of reapportionment than Mr. Steimel and the trial judge.

At the start, we note that while New Orleans has been losing total population, the black population of the city has been increasing. Between 1960 and 1970 the total population of New Orleans declined from 627,525 to 593,471, a decrease of 5 percent. In that period the black population grew from 234,931 to 267,308, an increase from 37.2 percent to 45 percent. Statistical Abstract of the United States, Dept, of Commerce, Bureau of the Census (1973), No. 23, p. 23. This is an important fact which the Senators’ plan takes into account. Senator O’Keefe, who represented a two-member district with Senator Hickey, testified:

Q What has been the trend, both population and voter registration-wise?
A The trend has been that in the downtown area, the black population and voter registration have increased notably and show a definite upward trend.
It also shows that the movement of the black vote and the black population from the river to the lake was in substantial numbers.

He also testified as to the effect of the Steimel plan:

A Well, I can best do that by starting in saying that almost an identical plan to this [Steimel plan] was submitted about five years ago for that particular area by the Citizens’ Councils of the city of New Orleans whose stated purpose was to affect the black vote in that area and to be prejudicial to the black, and it had as its purpose to isolate the lake front precincts, being Lakeview, which has one of the highest concentrations of Citizen Council members at that time —Citizen Council members in the city of New Orleans. So I would say the effect of the Master’s plan, as it deals with ward three, four, five, six, and seven, is to cut across a district which would be sixty per cent black and by four years from now will probably be eighty per cent black and to cut across another district which right now is approximately forty per cent black and within another, oh, I would guess four to eight years, would be at least fifty-fifty and probably sixty-forty. So that the net effect is that there would be a protected white area that would never never have influence of blacks and would be cut in such a way that the black voice would not be noticeably visible in this area, and, in effect, isolate the blacks in the front river precincts and also cut the growing area of blacks, such as lawyers, and doctors, who are moving out to the lakefront, [and around Dillard University]— would be substantially cut from the poorer blacks that live closer to the river. So it would.be separating what may be the leadership group of the blacks from the blacks numerical areas.

Black registration in New Orleans lags behind its potential; in 1971 it was 35 percent of the total registration. This may be accounted for, in part, by the fact that “people in the lower socioeconomic status tend to register in less percentages than do persons of a higher socio-economic status” (testimony of David R. Poynter, Senior Research Associate for the Louisiana Legislature Council) and by the disproportionately larger number of blacks below voting age (U.S. Census, 1970). In any event the increase in the black population in New Orleans naturally increases the registration. There is less bloc voting among whites than among blacks. Senator Hickey, for example, pointed out that the President of the Orleans Parish School Board and two black judges were elected in parish-wide elections over white opponents.

All of this adds up to the fact that there is a tipping point short of 50 percent. The strong motivation of blacks to vote and to vote for a black and the less than solid bloc voting of whites, many of whom favor increased black representation in the legislature, could mean that a senate district having 43-45 percent black population in 1971 could elect a black senator in 1975, the next election year.

What the Senators were able to come up with in 1971 was a plan for three districts having black populations close to the tipping point and a fourth district having a black population of 54.4 percent. Integration increases as the years pass. What Steimel proposes is two segregated black districts and two segregated white districts. It is ironical that, as Senator O’Keefe observed, the Steimel plan is identical with an earlier Citizens Councils’ plan.

In the Steimel and Senators’ plans the percentage of the black population, according to the 1970 census, was as follows:

District Steimel plan Senators' plan
2 64.0 42.6
3 16.0 43.7
4 70.2 54.4
5 21.7 42.0

In 1971 the percentage of black registered voters was as follows:

District Steimel plan Senators' plan
2 51.0 37.6
3 18.0 25.7
4 58.0 44.3
5 20.0 24.0

The trial judge stated that “while the Senators’ . plan probably would meet the one man, one vote standard . . . their plan practically eliminates the possibility of a negro being elected from any of the four districts while the court approved plan at least gives them a fair chance in two out of the four districts”. (Emphasis added.) The Court’s attention has been called to the fact, (indeed, it is public knowledge) that Sidney J. Bartholemy, a black, recently received a clear majority (52 percent) over three white candidates in the Democratic primary in Senate district 4 for the seat vacated by Senator Duplantier. In the general election, April 30, 1974, he defeated his white Republican opponent by a vote of 9,106 to 6,743. By 1974 black registration in district 4 had jumped from 44.3 percent to slightly less than 50 percent (17,258 black voters; 17,959 white voters). In Zimmer v. McKeithen, 5 Cir. 1973, 485 F.2d 1297 (en banc) the majority opinion declared that “an appellate court cannot take cognizance of matters not passed upon by the trial court”, and declared to consider the effect of an election of three blacks under a challenged at-large plan, because the election was held after the district court had approved the plan. We think, however, that it is proper for us to consider facts which are of public knowledge in deciding whether to remand the case for the district court to construct another plan. Moreover in Zimmer, the district court simply applied a per se rule that since the blacks were a majority in East Carroll Parish, an at-large plan could n<\t possibly submerge their vote. The majority reversed, noting that “although population is the proper measure of equality in apportionment. ... access to the political process and not population was the barometer of dilution of minority voting strength”; 485 F.2d at 1303. Here the trial judge conceded the racial gerrymander but justified it on the mistaken premise that lack of access to the political process was a product of discriminatory districting and on the mistaken conclusion that the Senators’ plan “eliminates the possibility of a negro being elected from any of the four districts”. The senators argued in the district court and argued on appeal that their plan gave blacks more and broader access than the Steimel plan. They laid a predicate in the district court for what later happened; this was not the situation in Zimmer. We do not say that the election of one black senator, the first to be elected since 1898, is necessarily conclusive, for there could be voting districts where the white power structure might successfully support a black candidate for various political reasons. Nevertheless, Senator Bartholemy’s election shows that a black had the “possibility” of being elected under the Senators’ plan. Perhaps equally significant is the increase in black registration in only three years, a very important factor which the senators considered, but which apparently was ignored in the Steimel plan.

It was a fair inference in 1971 and is evident now that under the Senators’ plan, districts 2 and 4 are especially unsafe for any white candidate, and, given a few years, for black registration to catch up with potential black voting strength, none of the four districts can be considered a “safe” white district. Even in a district with a white senator there are and will be enough blacks so that they will have a voice in the political processes. On the other hand, while the Steimel plan gerrymanders and guarantees the election of a black senator from each of districts 2 and 4, this can be accomplished only by diluting black voting power in districts 3 and 5 to the point where the white senators from those districts could ignore with impunity the special needs of blacks in those districts.

The two plans cover the same total area for the disputed districts. The maps in the record, copies of which are appended to this opinion, graphically show the superiority of the Senators’ plan. The Senators’ plan adheres to closely established ward lines which have served as the basis for legislative districts for a century. The districts are compact, contiguous, and straight-lined districts, without diluting the increasing strength of black voting power. The Steimel plan egregiously gerrymanders senate districts 2, 3, 4, and 5, virtually ignoring ward lines. Under that plan, district 4 is a 24-27 sided figure (there is a dispute as to the number) that is made up of Wards 1 and 2 and selected densely populated black precincts from five other wards (3, 4, 5, 6, and 7). District 5 has 21-24 sides with precincts from four wards 3, 4, 5, and 7. Portions of Ward 7 are spread through three districts. Ward 8 is segmented, also destroying the integrity of its ward lines. The Ninth Ward has a population of 137,000. This is more than 40,000 persons necessary to constitute an ideal single-member senatorial district comprising 93,415 people. The Steimel plan divides the Ninth Ward, with one section of the Ninth Ward forming a senatorial district with small portions of Wards 7 and 8 and another senatorial district with a small portion of Ward 8.

The Senators’ plan, as any districting plan must, divides the Ninth Ward. But District 2 contains all of the precincts in Ward 9 except precincts 9 through 29. District 3 consists of the first eight precincts in Ward 9 and all of Ward 8. The established boundaries of Wards 8 and 9 have existed in Louisiana law for many decades. Of paramount importance, all precincts of Ward 9, which are a part of Senatorial District 3, are immediately adjacent and contiguous with those of Ward 8, and precincts 9 through 29 of Ward 9 are exactly within the census track boundaries of the United States Bureau of Census. District 4 contains Wards 6 and 7. The state policy of including Wards 6 and 7 as a single-member senate district (District 4) has been established since 1921. District 5 contains Wards 1, 2, 3, 4, and 5.

III.

A ward in New Orleans traditionally means as much to its residents as a par-? ish or county does to its residents. The City has been divided into wards since 1805, and most of the ward boundaries are far more ancient than any question of Negro voting strength. Canal Street and Elysian Fields were ward boundaries in 1805, and are now. Almonaster, Esplanade, St. Philip, and Canal Streets were ward boundaries in 1836, and are now.

The direct ancestor of the present ward structure was adopted in 1852. Ward boundaries have been changed since then only by the addition of new wards to accommodate areas newly incorporated into the city, except for a minor change in 1878 to correct an anomaly and a major change in 1880 when a substantial area was taken from the sixth ward and added to the fourth and fifth. That change of 1880 was the last change in the ward boundaries to date. The Home Rule Charter of the City for 1954 has the same ward boundaries as its predecessor, the charter of 1912. It is ludicrous to suggest that the wards were gerrymandered in 1912 to prevent blacks from having access to the legislature. At that time, it is just possible that there were as many as 200 blacks registered in New Orleans, but they were ineligible to vote in the decisive white primaries.

The first function of the wards was to serve as the districts from which were elected the aldermen who formed the governing council of the City. Since then, they have been used as the basic units of apportionment for representatives in the United States Congress, for presidential electors, for state senators and representatives, for judges and lesser officials of the city courts, for city councilmen, for tax assessors, and for the members of the numerous central or regional committees which form the statutory structure of the political parties. The wards have structured the working levels of political organizations. Parties and factions have generally been organized along ward lines with ward leaders as major political powers.

Moreover, the wards are real and important parts of the city’s life and culture. Residents of the City are likely to speak of themselves as living in the Twelfth ward, or the Seventh, or the Fourteenth, say, in contexts quite apart from politics; indeed, in the same way that one would say that he lived in Marigny or in the Irish Channel or the lower Garden District.

In 1876 the City was first divided into senatorial districts with ward boundaries. The wards continued to be units of which senatorial districts were formed through the reapportionments of 1878, 1879, 1902, 1921, 1966, and 1971. There was no reapportionment of the legislature between 1921 and 1966.

The long history and continuing vitality of the wards entitle them to the respect accorded political subdivisions by the Supreme Court in Reynolds v. Simms, 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506: “A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible . . . ”

Bannister v. Davis, E.D.La.1966, 263 F.Supp. 202, 206, accorded them this respect: “A reapportionment plan may and should follow the boundaries of existing wards and parishes as long as it represents a good faith attempt to keep the number of persons as close as possible to the ideal.” In this case, Judge West gave this same instruction to the special master.

The importance attached by the Supreme Coui’t to partitioning by existing subdivisions is illustrated by Abate v. Mundt, 1971, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399, in which the Court approved substantial population deviations because they were necessary to accommodate that principle.

IV.

With due deference to the Supreme Court, we consider that Whitcomb v. Chavis, 1971, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363, should control the case now before this Court.

Whitcomb dealt with reapportionment of the Indiana legislature. In Indianapolis, the district court was able to define an area within which lived enough people to qualify for one senate seat and two house seats. A majority of those people were black, and they shared certain other demographic characteristics giving them as the district court said, a community of interest and entitling them to have the apportionment plan drawn in such a way as to realize their block-voting potential. Accordingly the district court’s plan assigned to that ghetto area two single-member house districts and one single-member senate district. In order to accomplish that result, however, it was necessary for the district court to abandon the longstanding Indiana policy of apportioning the counties as single-member districts.

The Supreme Court considered directly the issues presented by this judicial attempt to enhance the representation of a particular ethnic-socio-economic group. It disapproved. The people of the ghetto were entitled to participation in the political process and to representation as people, and the record did not show that they had been denied that. But they were not entitled to recognition and representation as poor black ghetto dwellers, nor on account of any other characteristics that might be typical of their area. The constitution extends equal protection of the laws to people, not to interests. The Court recognized that disregard of the multi-member districting policy would be justified were it shown to be discriminatory against constitutionally protected rights. But there was nothing in that record to indicate an invidious design in the Indiana practice of apportionment by multi-member districts, as there is nothing invidious in the Louisiana practice of apportioning with respect to the wards of New Orleans.

There was, in the record, a showing that few ghetto residents had been elected to the legislature, as there was in this case a showing that, until recently only two blacks had been elected to the Louisiana Legislature in this century. There was a showing in that case which has no counterpart in this case, that candidates favored by the ghetto residents had lost more elections than they had won in recent years. But, the Supreme Court said, there is no constitutional right to be included within a district that is especially favorable to the interests of one’s own group, or even to be excluded from a district that is “safe” for some other group.

The Supreme Court, in its per curiam opinion in the instant case recognized that Whitcomb was similar in some respects, “and, in each case the equitable remedy of the court conflicted with a state policy”. “There the state policy favored multi-member districts whereas here the policy favors maintenance of traditional boundaries.” But, said the Court:

“The important difference, however, is that in Whitcomb it was conceded that the State’s preference for multimember districts was not rooted in racial discrimination, 403 U.S., at 149, 91 S.Ct., at 1872. Here, however, there has been no such concession and, indeed, the District Court found a long ‘history’ of bias and franchise dilution in the State’s traditional drawing of district lines.” Cf. id., at 155, 91 S.Ct., at 1875.

This brings us to the spectacularly false premise on which the district court based its approval of gerrymandering senate districts 2, 3, 4, and 5. Any student of history and certainly anyone familiar with Louisiana politics, such as Senator Hickey, the unwitting source of the district court’s revision of Louisiana history, knows that the district court’s “finding” was not just “clearly erroneous”; it was dead wrong.

V.

There is absolutely nothing of substance in the record and less than nothing in Louisiana history to support the notion that the State’s policy of preserving traditional political boundaries for legislative districts was, in the language of the Supreme Court’s per curiam opinion, “rooted in racial discrimination”.

From 1868 until the federal troops were withdrawn in 1877, there were more Negro voters in the state than there were white voters, and the legislature was dominated by the Radical Republicans, whose support came primarily from Negro voters. Presumably if any race were to be disadvantaged by districting practices in this period, it would not be the Negro race. Reconstruction ended when the federal troops left, but Negro suffrage did not. For the next twenty-one years, the votes of Negro citizens were earnestly solicited by rival factions. After 1868 then, and until sometime in the past decade, Negro voting was simply irrelevant to political power struggles, and to reapportionment. For three decades, from 1868 until 1898, Negro suffrage was certainly not irrelevant. It was perhaps the most important fact of political life, but it was never dealt with, to enhance or to diminish its power, by reapportionment. One may search the voluminous political literature of this era in vain for any reference to reapportionment in relation to race.

This Court has studied the history of the enslavement, enfranchisement, disfranchisement, and reenfranchisement of blacks in Louisiana. The organ of the Court in this case was the organ of the Court in United States v. Louisiana, E.D.La.1963, 225 F.Supp. 353, aff’d 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709. In that three-judge case, the court, starting with the Code Noir of 1724, examined in exhaustive detail the various methods used in Louisiana to frustrate or to dilute Negro voting, because the court considered it necessary to show that a citizenship test, apparently neutral on its face, was part of a pattern, a member of a long series, designed to prevent or to dilute blacks voting. (See 225 F.Supp. 363-381, 18 pages of a much longer opinion, which on other pages also touched on the same subject.) We summarized the history of Louisiana’s efforts to repress blacks voting as follows:

The Louisiana Codes Noir of Colonial times and the Black Codes of the eighteen sixties; the pre-Civil War denial of the vote to Negroes, even to wealthy and educated free men of col- or; the ebb and flow of Negro rights in the Constitutions of 1864 and 1868; the 1879 transfer of political power from police juries and the legislature to the Governor; the close election of 1892 and the 1896 victory for white supremacy; the grandfather clause and the complicated registration application form in the Constitution of 1898; the invalidity of the grandfather clause and the consequent resort to Mississippi’s understanding and interpretation clause; the effectiveness of the white primary as a means of disfranchising Negroes; the invalidity of the white primary and the consequent need to revive enforcement of the interpretation test; the White League and the Citizens’ Councils; the Black League and the N.A.A.C.P.; the Battle of Liberty Place in 1874 and the Ouachita voting purge of 1956 — these are all related members of a series, all reactions to the same dynamics that produced the interpretation test and speak eloquently of its purpose.
In sum, the interpretation test is another grandfather clause. Its purpose is rooted in the same history. It has the same objective the delegates to the Constitutional Convention of 1898 envisaged for the grandfather clause. It is capable of producing the same effective disfranchisement of Negroes today that the grandfather clause produced sixty-five years ago.

The categorical statement can be made, fairly, that the use of historical boundaries was never resorted to in Louisiana as a means of frustrating or diluting the black vote for members of the legislature. To the shame of Louisiana, among other states, more direct, humiliating, and effective means were used.

On January 1, 1897, thanks to Reconstruction laws, there were in Louisiana 130,344 registered Negro voters and 164,088 white voters. There had been many black members of the legislature, a black Lieutenant-Governor, and, for a time, a black Governor. Then came the Louisiana Constitution of 1898, a product of the 1896 election victory for white supremacy. The Constitutional Convention of 1897, for fear that the “understanding” clause was vulnerable to constitutional attack, adopted the “grandfather” clause, an “educational” qualification, and a “property” qualification for ■ registration. The results were predictable. In 1900 the following registration figures show that a drastic purge of Negro voters occurred:

White Negro
Under the "educational" qualification 86,157 4,327
Under the "property" qualification 10,793 916
Under the "grandfather" clause 29,189 0

The drop in black registration continued. In 1910 only 730 blacks or less than 0.5 percent of the adult male blacks in tin- state were registered. As late as in 1942 only 957 blacks were registered to vote in Louisiana and not one was on the registration rolls in 51 of the 64 parishes in Louisiana. Most of the blacks on the rolls were registered as Republicans. Even in the late fifties and sixties the weapons used to prevent blacks from voting were complicated registration forms, literacy tests (Louisiana has the lowest literacy rate of any state), interpretation tests, and even facially neutral citizenship tests with discretionary power vested in the registrar of voters to evaluate the tests. This is not to minimize the effect of intimidation and economic reprisals as weapons Louisiana whites used against potential black voters. Absent this arsenal of weapons available until only a few years ago, reliance on historical boundaries of legislative seats would have elected many black lawmakers and legislatures would have had the racial composition of the Louisiana legislatures between 1868 and 1896.

In recent years, after blacks began to register freely and in large numbers, city councils, police juries (county commissions), school boards, and other political subdivisions or agencies turned to voting at-large, multi-member districts, anti-single-shot laws difficult for some voters to understand, and perhaps some racial gerrymandering to dilute the black vote. We have none of these devices here.

The Supreme Court’s trust in the district court’s finding of “a long history of bias and franchise dilution in the State’s traditional drawing of district lines” was misplaced.

The trial judge’s leap to his conclusion apparently rests on a single short colloquy he had with Senator Theodore H. Hickey, who shared his district with Senator O’Keefe. It is as follows:

By The Court:
Q. Senator, let me ask you one thing, just so the record will be clear. You refer to the so-called historical boundaries in this area. It is my understanding, and correct me if I am wrong, — but it is my understanding that adherence to these so-called historical boundaries have produced, I believe, since Reconstruction days, two Negro legislators. If that-*-am I correct ?
A. To my knowledge and the terms that I have served, I only remember, Judge, to the best of my memory, two Negro representatives. That is exactly correct.

It seems clear to us that the witness intended no revision of history, leading to any such extraordinarily incorrect historical conclusion as the trial judge drew. Senator Hickey is a veteran of many Louisiana political wars. He simply stated that he could remember only two Negro legislators having been elected, and nothing more. All the rest was in the mind of the questioner, not the answerer. It is a non sequitur to assume that because only two Negroes had been elected to the legislature the producing cause was the state’s policy of adhering to historical political boundaries. Senator Hickey’s answer does not connect the lack of black legislators with legislative districting. He knew better.

VI.

We deferred writing this opinion in part because the Louisiana Legislature had passed Act 457 of 1972, which adopted the Steimel plan as modified by this Court and in part because we were waiting, first, for the decision of the Supreme Court in White v. Regester, 1973, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 and then for two decisions of this Court, Zimmer v. McKeithen, 5 Cir. 1973, 485 F.2d 1297, en banc, reversing 467 F.2d 1381, and Turner v. McKeithen, 5 Cir. 1973, 490 F.2d 191. Unfortunately, the facts and issues in these eases, as developed in the opinions, have not proved especially helpful.

In White v. Regester, as in Whitcomb v. Chavis, the Court held that the plaintiffs must prove some denial of fair and effective representation; that they may show, and did show in that case, that they “had less opportunity than did the other residents in the district to participate in the political processes and to elect' legislators of their choice”. 412 U.S. at 766, 93 S.Ct. at 2339. In that case multi-member districts, in conjunction with a variety of state rules and procedures, were employed to exclude blacks and Mexiean-Americans from the electoral process.

Zimmer v. McKeithen involved an at-large voting scheme for electing Police Jurors and School Board members in East Carroll Parish, Louisiana. The district court applied a per se rule that when blacks constitute a majority in a parish, an at-large plan could not dilute their vote. This Court repudiated that rule and observed that “access to the political process and not population was the barometer of dilution of minority voting strength”. 485 F.2d at 1303. Turner v. McKeithen involved a multimember election plan for a police jury, which “dilutes the potential for political participation by the black community of Ouachita Parish”. Chief Judge Brown, writing for the Court, made a comment, pertinent to the instant case:

While a minority group is not constitutionally entitled to an apportionment structure designed to maximize its political advantage, neither may it be enveloped in a structure which will necessarily minimize its potential for meaningful access to the political process.

490 F.2d at 197.

In Wright v. Rockefeller, 1964, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512, the litigation was cast in terms of racial gerrymander. Four districts in Manhattan showed these statistics:

District Percent of Whites Percent of Blacks and Puerto Ricans
17 94.9 5.1
18 13.7 86.3
19 71.5 28.5
20 72.5 27.5

The minority group intervenors defended the concentration of minority voters in the 18th District. The Supreme Court (7 to 2) upheld the districting on the ground that there was no proof that it was racially motivated. Justice Douglas, dissenting, found that the effect of drawing the boundary between two particular districts was “to bring into the Eighteenth District and keep out of the Seventeenth as many Negroes and Puerto Ricans as possible”. (In the instant case the boundary between Steimel’s districts 2 and 3 and that between districts 4 and 5 are drawn so as to bring as many' blacks into districts 2 and 4 as possible and to keep blacks out of districts 3 and 5.) Justice Douglas concluded that “[r] acial segregation that is state-sponsored should be nullified whatever may have been intended”. In the instant case there is certainly no proof that the traditional ward boundaries on which the Senators based their plan were drawn with any intention to discriminate. On the other hand, both the special master and the trial judge candidly conceded that the Steimel districts were drawn in racial terms. We agree with Justice Douglas: “Rotten boroughs were long a curse of democratic processes. Racial boroughs are also at war with democratic standards.”

What Justice Douglas stated so forcefully in his dissent might have been stated as forcefully by Justice Black, for the court, if there had been proof that the districting was racially motivated. Here, the district judge clearly spoke in terms of racial districting. He noted that in his plan two of the four districts would have a majority of black registrants (58 percent and 51 percent), “with the attendant possibility of electing negroes to the Legislature”.

This Court has never been timid in exercising its equitable powers to fashion appropriate color-conscious remedies. “We are not Johnny-come-latelys to the eradication of racial discrimination through race conscious means”, as Chief Judge Brown wrote, concurring, in Morrow v. Crisler, 5 Cir. 1974, 491 F.2d 1053. “The Constitution is both colorblind and color conscious. To avoid conflict with' the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.” United States v. Jefferson County Board of Education, 5 Cir. 1966, 372 F.2d 836, 876, cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967). In United States v. Louisiana we adopted the freezing principle to enjoin the use of a citizenship test, neutral on its face and as applied, as a voters registration requirement. The object was to give blacks who had been discriminated against in registering a chance to catch up. In school cases, we have imposed ratios as a goal, as to pupils, and as a command, as to teachers. In employment cases we have used the race conscious “rightful place theory” and racial hiring quotas. In jury selection cases we have approved remedial racial classifications.

In all these and similar cases the remedy favored integration; had race been used to increase segregation we would never have fashioned the remedies we adopted. Here the Steimel districting tends to segregate racial populations. It may guarantee the election of two black senators but it also guarantees the election of two white senators from districts where there will be few blacks, so few that they may rightfully consider that they have been discriminated against.

VII.

With different pleadings, a different record, and different legal theories, the Taylor plaintiffs might have raised an important constitutional issue that would be closely related to the issue that concerned the Supreme Court. It has been suggested that “we are leaving the era of reapportionment and beginning the quest for representative apportionment”. Foreseeing that day, one commentator has stated the issue in these terms: “The issue is whether it is constitutionally permissible to use race explicitly as a criterion in reapportionment, when the goal of racial districting is purportedly benign”. Mr. Stanley Halpin, counsel for Mrs. Taylor, in a recent article, concluded, however, that thus far the Supreme Court “has not indicated any inclination to sustain a racial gerrymandering claim”. Halpin and Engstrom, “Racial Gerrymandering and Southern State Legislative Redistricting”, 22 Jour.Pub.Law 37, 41 (1973).

The question raises so many complex political and social problems as well as constitutional difficulties, it is no wonder that neither counsel for Mrs. Taylor nor Mr. Steimel nor the district court was willing to accept that question as the issue in this case, with the Steimel plan as the answer to the question. Nor can we say that on the record before us, that was the issue. Not the least of the problems that would be created by representative apportionment is that the cartographer, whether he be a legislative commissioner or a court-appointed master, cannot draw his meandering lines without increasing segregation and aggravating the polarization of the races in the community. Here, for example, Steimel could not pack a black population of 70.2 percent into his district 4, except by cutting down the number of blacks in his district 3 to 16 percent. Mrs. Taylor might have argued that representative apportionment legitimated the gerrymander. She did not resort to this argument.

No doubt a strong case can be made for the use of purposeful judicial racial gerrymandering to afford blacks fair representation in the legislature, substantially proportionate to their population or at least to their registration. This argument could have been made here even though the Senators’ plan and, for that matter, the traditional boundaries of voting districts were not “rooted in racial discrimination”. The district court did not see the case that way. Instead, the district court based its decision on the clearly erroneous notion that Louisiana history demonstrated that blacks were deprived of access to the legislature by discriminatory districting. On the merits of the two plans, the district court’s preference for the Steimel gerrymander of districts 2, 3, 4, and 5 exceeded the bounds of judicial discretion. As we see it, the alternative non-gerrymandered plan of the Senators was not one composed of traditional “safe” white districts. Although based on traditional ward lines, it was radically different from all of the State’s previous statutory apportionments of the area in question, geographically and in having all single-member districts. Considering the totality of circumstances relating to the four districts as a whole, the Senators’ plan accords blacks more access and heavier weight in the political processes than the plan approved by the district court. This is especially evident if we look to population trends. In short, sound judicial discretion commands approval of the Senators’ plan.

The foregoing opinion explains the reasons for our original decision, and our belief that this judgment was correct. Decisions since the date of our judgment either support that judgment or are not inconsistent with it. Accordingly, with all due respect and deference to the Supreme Court, we reinstate our original judgment.

Appendix to follow.

SEIMEL PLAN

      . The trial judge instructed the master as follows:
      “The Special Master was verbally instructed by the Court that any plan to be acceptable must be drawn in such a fashion as to adhere as closely as possible to the one-man, one-vote mandate of the United States Supreme Court while at the same time maintaining as nearly as possible natural or historical boundary lines. ■ No consideration whatsoever was to be given to the location of the residence of either incumbents in office or of announced or prospective candidates. Racial considerations were to be pertinent only from the stand point of making certain that there was no intentional gerrymandering of districts in order to control the racial makeup of any district. The proposed districts were to be as uniform and rational as possible, giving consideration of the population based on the latest census figures, natural historical boundaries, access from one part of a district to another, and the economic interests of the areas involved. Every effort was to be made to avoid splitting wards wherever possible and in no event were existing precincts to be divided.”

      We add italicizing to emphasize how widely the Steimel plan and the district court’s approval of the plan departed from the district court’s instructions to the master, with respect to Senate districts 2, 3, 4, and 5.

      . Our opinion-judgment, which we quote in full, was as follows: “This expedited appeal is from a judgment of the district court, 333 F.Supp. 452, under our remand of Sept. 4, 1971 ordering the district court to conduct a hearing on the Master’s proposed plan for reapportionment of the Louisiana legislature.
      1. We hold that the district court correctly determined that the case was properly before him as a single judge.
      2. We approve the dates, September 15 and 16, 1971, set by the district court for the qualification of candidates for the Louisiana legislature.
      3. We affirm the judgment of the district court with the following modifications:
      a) The boundaries of Senate districts 2, 3, 4, and 5 are modified so as to conform with the defendants-appellants’ alternate plan for those districts.

        b) The boundaries of Senate districts 14, 15, and 16 are modified so as to conform with the DeBlieux alternate plan for those districts.
      c) For the purposes of the forthcoming election only, we approve the reapportionment of Jefferson Parish as set forth in the Master’s plan and adopted by the district court. This approval is without prejudice to any challenge to the apportionment of Jefferson Parish for future elections.”

      . The Attorney General had only a nominal interest in this dispute over four state senate districts in Orleans Parish, although an Assistant Attorney General’s 'name was on the Senators’ brief. Indeed, the Senators’ plan differs geographically from the statutory apportionment, and the position of the Attorney General was inconsistent with that of the Senators. They were careful to propose four single-member districts, instead of two dual-member districts and one single-member district for the area in question. Accordingly, we use the term “Senators’ plan” to distinguish it from the “Steimel plan” approved by the district court. The district court also used the term “Senators’ j)lan”.

      . Seefn. 3.

      . See fn. 3.

      . We do not address this opinion to political subdivisions, councils, police juries, or other bodies which might have gerrymandered districts in the late sixties or early seventies to dilute the black vote — after blacks gained the right to vote in Louisiana and had begun to vote in large numbers. This case involves the apportionment of the Louisiana Legislature only.

      . The Supreme Court has said, “We agree that when district courts are forced to fashion apportionment plans, single member districts are preferable to large multi-member districts as a general matter”. Connor v. Johnson, 1971, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268.

      . The district court stated in its opinion that “[e]ven if the Attorney General had not found racial discrimination, this Court would have found those Acts unconstitutional for failure to comply with the constitutional requirement of one man, one vote; for employing gerrymandering in its grossest form; for diluting the vote of certain ethnic groups, and for other reasons.” E.D.La.1971, 333 F.Supp. 452, 454. We agree.

      . See Bannister v. Davis, 263 F.Supp. at 208.

      . See fn. 1.

      . See fn. 3.

      . Seefn. 7.

      . The Senators explained in their brief that they did not call Mr. Steimel because:
      “[T]here are no real disputes as to factual issues, and Mr. Steimel’s motives are not an issue. If his ‘explanation of the plan’ as it relates to the four Senate Districts in question is allowed to speak for itself, as suggested by the District Court, the record is indeed mute. Mr. Steimel’s report makes no explanation for his action in disregarding established ward lines, cutting across historical subdivisions, and producting districts which, by the District Judge’s own admission, have a ‘many-sided perimeter.’ ”

      . Judicially imposed plans do not require the approval of the Attorney General of the United States under Section 5 of the Voting Rights Act. Mr. Steimel noted this but in his report to the district court “stated that it ‘seems incumbent upon the Voting Rights states to give evidence that reapportionment plans established for their legislative bodies were not discriminatory.’ He continued:
      ‘It is this guideline which makes it mandatory that large multi-member districts in heavily populated areas be eliminated, for large clusters of minorities are to be found in all large concentrations of population and their influence in electing someone from their number is largely nullified in large multi-member districts. . . . ’ ”
      Report to Hon. E. Gordon West from Edward J. Steimel, August 20, 1971, exhibits “A” through “W”, filed in the case of Bussie v. Governor of Louisiana, 1971, 333 P. Supp. 452, and quoted in Halpin & Engstrom, Racial Gerrymandering and Southern State Legislative Redistricting: Attorney General Determinations Under the Voting Rights Act, 1973, 22 J.Pub.Law, 37, 54-55. We agree with this statement.

      . At this point there is no dispute over the three parishes in Baton Rouge.

      . This movement follows the natural development of the city which, over the years, grew away from the Mississippi toward Lake Pontchartrain. This trend tends to blunt the possible argument that north-south ward lines segment black concentrations close to the river or in the central part of the city.

      . Shortly after the School Desegregation Cases, the Association of Citizens Councils of Louisiana was organized to maintain segregation in all its aspects. In the late fifties it mounted a campaign to remove blacks from registration rolls and to keep them off the rolls. For a description of these activities, see United States v. Louisiana, D.C., 225 F.Supp., 353, 378-390.

      . See fn. 17.

      . See Judge Gewin’s discussion of this subject in the majority opinion in Zimmer v. McKeithen, 485 F.2d 1297.

      . The Senators’ plan is as follows:
      District Parish Numerical Percent Description Population Deviation Deviation
      2 Orleans 88,374 -5,041 -5.4 Ward 9 — Less Precincts 9 through 29
      3 Orleans 87,907 -5,508 -5.9 Ward 8 Ward 9 — Precincts 9 through 29
      4 Orleans . 89,155 -4,260 -4.56 Wards 6 and 7
      5 Orleans 97,705 +4,290 +4.59 Wards 1, 2, 3, 4 and 5

      . The Steimel plan is as follows:
      Parish District Description Numerical Percent Population Deviation Deviation
      2 Orleans 89,476 -3,939 -4.2%
      Ward 8 precincts 1, 2, 4, 5, 6, 7, 8
      Ward 9 precincts 1, 1A, 2, 3, 3A, 3B, 4, 5, 5A, 6, 6A, 6B, 6C, 6D, 7, 8, 8A, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 25A, 26, 27, 28, 28A, 28B, 28C, 29
      3 Orleans 91,317 -2,098 -2.2%
      Ward 8 precincts 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 25A, 26, 26A, 27, 27A, 28, 29, 30
      Ward 9 precincts 29A, 30, 30A, 31, 31A, 31B, 31C, 31D, 31E, 32, 33, 33A, 34, 35, 36, 36A, 36B, 37, 37A, 38, 38A, 39, 39A, 39B, 40, 40A, 40B, 41, 42, 42A, 43, 43A, 44, 44A, 45
      Ward 7 precincts 34, 35, 36, 36A, 37, 38, 38A
      4 Orleans 89,879 -3,536 -3.8%
      Wards 1 and 2
      Ward 3 precincts 1, 3, 3A, 4, 5, 6
      Ward 4 precincts 2, 3, 4
      Ward 5 precincts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11
      Ward 6 precincts 1, 2, 4, 5, 6, 7, 8, 9
      Ward 7 precincts 1, 2, 4, 4A, 5, 6, 7, 10, 11, 13, 14, 20
      5 Orleans 88,961 -4,454 -4.8%
      Ward 4 precincts 5, 6, 7, 8, 9, 10, 10A, 11, 12, 13, 13A, 14, 14A, 15, 16, 16A, 17, 17A, 18, 18A, 19, 20, 20A, 21, 21A, 22, 23
      Ward 3 precincts 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20
      Ward 5 precincts 12, 13, 14, 15, 16, 17, 18, 19
      Ward 7 precincts 8, 9, 9A, 12, 15, 16, 17, 17A, 18, 19, 20A, 21, 22, 23, 24, 25, 26, 26A, 27, 27A, 27B, 28, 28A, 29, 30, 31, 32, 33, 33A, 39, 40, 41, 42

      . Newman and Borello, Wards de la Nouvelle Orleans (Bureau of Governmental Research 1961) 10. Hereafter referred to as Wards.

      . Wards, 11.

      . Wards, 18.

      . Wards, 13.

      . Wards, 15.

      . Wards, 7-10.

      . An estimate based on the state-wide registration of 730 blacks in 1910.

      . Wards, 3.

      . Wards, 19-21.

      . Wards, 21.

      . Deutsch, New Orleans Politics — The Greatest Free Show on Earth, in Carter, Ed., The Past as Prelude, 311.

      . Wards, 9.

      . Wards 19 ; Act 3 of 1966, Spec.Sess; Act 457 of 1972.

      . See fn. 1.

      . Hair, Louisiana Politics, 1877-1900 (1969), 4.

      . Sliugg, Origins of Class Struggle in Louisiana (1939), 204.

      . Jackson, New Orleans in the Gilded Age (1969), 56.

      . The registration figures in this section of this opinion come from sources cited in Seetion IV of the opinion in United States v. Louisiana.

      . Between 1868 and 1896, a number of Negroes held high office in Hie State: two congressmen, six high state officials, thirty-two state senators, ninety-five state representatives, and one United States Senator, who was not seated; P.B.S. Pinchback served briefly as Governor.

      . United States v. Jefferson County Bd. of Educa., 5 Cir.1966, 372 F.2d 836, aff’d en banc, 380 F.2d 385, 394; Singleton v. Jackson Municipal Separate School Dist., 5 Cir. 1969, 419 F.2d 1211, 1217-1218 (Singleton III) (en banc). These two cases and the cases cited in footnotes 42, 43, and 44 are just samples. Many more cases might be cited.

      . Local 189 United Papermaker and Paper Workers v. United States, 5 Cir. 1969, 416 F.2d 980, 988, cert. denied 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100.

      . Johnson v. Goodyear Tire and Rubber Co., 5 Cir. 1974, 491 F.2d 1364; Morrow v. Crisler, 5 Cir. 1974, 491 F.2d 1053. See especially the concurring opinion of Chief Judge Brown.

      . Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1, cert. denied, 386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135.

      . Casper, Apportionment and the Right to Vote, Standards of Judicial Scrutiny, the Supreme Court Review (1973), 32. See Bickel, the Supreme Court and Reapportionment, in Reapportionment in the 1970’s, 57, 72 (N. Polsby ed. 1971). See also Beer v. United States, U.S.D.C., 1974, 374 F.Supp. 363, pet. for cert, pending.

      . Comment, Compensatory Racial Reapportionment, 25 Stan.L.Rev. 84 (1972).

      . For discussion of benign gerrymandering, see Comment, Political Gerrymandering: A Statutory Compactness Standard as an Antidote for Judicial Impotence, 42 U.Chi.L. Rev. 398 (1974) ; Note, Apportionment Problems in Local Government, 49 Not. Dame L.Rev. 671 (1974) ; Ilalpin and Engstrom, Racial Gerrymandering and Southern State Legislative Redistricting, 22 Jour:Pub. Law 37 (1973) ; Comment, Compensatory Racial Reapportionment, 25 Stan.L.Rev. 84 (1972). See also Dixon, The Court, The People and, “One Man, One Vote” in Reapportionment in the 1970’s, 7 (N. Polsby ed. 1971) ; Baker, Gerrymandering: Privileged Sanctuary or Next Judicial Target? in Reapportionment in the 1970’s, 121 (N. Polsby ed. 1971).

      . See fn. 2.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Beryl N. JONES et al., Plaintiffs-Appellees, United States of America, Intervenor, v. CADDO PARISH SCHOOL BOARD et al., Defendants-Appellees, Jerry Adams et al., Movants-Appellants.
    No. 74-1672.
    United States Court of Appeals, Fifth Circuit.
    Aug. 30, 1974.
    Norman J. Chachkin, Jack Greenberg, Margrett Ford, New York City, Hilry Huckaby, III, Shreveport, La., for appellants.
    John R. Pleasant, Shreveport, La., for Caddo Parish School Bd.
    Murphy W. Bell, Baton Rouge, La., for Beryl N. Jones et al.
    Donald E. Walter, U. S. Atty., Shreveport, La., Robert H. Shemwell, Asst. U. S. Atty., Brian K. Landsberg, Dept, of Justice, Washington, D. C., for the United States.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   PER CURIAM:

Plaintiffs brought this class action originally in 1965 to desegregate the public schools of Caddo Parish, Louisiana. The matter has been before us several times, most recently in 1973 (see 487 F.2d 1275) and in 1970 (see 421 F.2d 313). Appellants have brought this appeal because they were denied the right to intervene in these proceedings by the District Judge.

On March 20, 1973, the United States, as plaintiff-intervenor, filed a response to plaintiffs’ amended motion for further relief and, among other things, a recommendation was made that the District Court establish a biracial committee “to ascertain facts pertaining to the past and present operation of the school district, and to develop alternative methods of desegregation.” The United States appended to its pleading a suggested order with a named biracial committee and District Judge Scott signed the order on the same day it was filed.

The biracial committee was composed of ten leading citizens of Caddo Parish, five white and five black, with an eleventh member, a chairman, who would vote only in the event of a tie. According to the School Board, the committee worked on its assignment for ten weeks and held seven public meetings and twenty-one private deliberative meetings. A plan of desegregation was unanimously adopted by the committee and filed with the District Court on June 1, 1973. On June 11, 1973, plaintiffs, through counsel, filed objection to the plan asserting that it was defective because it failed “to achieve as much desegregation as might feasibly be achieved.” In their pleading, however, plaintiffs, through counsel, stated that they were “not opposed to the basic provisions of the court-appointed Citizens Committee’s plan as it relates to desegregation of the administration, faculty and staff of the defendant School Board.” On June 14, 1973, a motion was filed by Mrs. Fannie Adams on behalf of her minor children, Jerry, Vicki and William Adams, et al., through counsel, to add the named persons as additional parties plaintiffs in these proceedings. It was stated in the motion that “[t]he interest of the proposed additional parties plaintiffs are the same as those of the original plaintiffs; the effective disestablishment of the dual school system in Caddo Parish and the operation of a unitary school system therein. The proposed additional par-' ties plaintiffs will be represented by the same counsel who have heretofore represented the original plaintiffs.”

Thereafter, on July 12, 1973, a motion was filed by Jesse N. Stone, Jr., “the original retained counsel for the original plaintiffs,” in which he moved the Court to strike the names of associate counsel in the ease and substitute the name of Murphy W. Bell, attorney (of Baton Rouge, Louisiana), as “chief counsel and trial attorney.” The District Court approved the motion on July 13, 1973. On July 18, 1973, the District Court entered its order denying the motion to add additional parties plaintiffs. On the same date, the District Court entered orders denying motions to intervene of Caddo Teachers’ Association and FAIR.

The record additionally shows that on July 19, 1973 a response to motion to enroll substitute counsel was filed by counsel whose names as associate counsel had been stricken as associate counsel for plaintiffs by Judge Scott’s order of July 13, 1973. In this response the prayer thereto states that “undersigned counsel respectfully pray that this Court take the motion to enroll new counsel under advisement, grant the motion to add additional parties plaintiffs, permit the addition of Mr. Bell as counsel for Reverend Jones, Reverend McLain and Mrs. Smith at such time as a proper notice of appearance is filed, and proceed forthwith to a determination of the merits of this controversy.”

On the next day, July 20, 1973, plaintiffs, through undersigned counsel (that is, new counsel Murphy W. Bell), filed their motion to strike objections previously filed herein to the court-appointed Citizens Committee’s plan. The District Court accordingly entered its motion on the same day striking plaintiffs’ objections. Likewise, on the same day, the District Court entered its order approving the biracial committee’s plan in which the Court stated that the plaintiffs and the School Board had accepted the plan and the United States had filed its response which was appended to the order and interjects no objection thereto. The biracial committee’s plan approved by the District Court was thus implemented for the school year 1973-74. According to the School Board, the administrative staff at the highest level is integrated on a 50-50 ratio, the instructional staff is moving from 60-40 to 50-50, transportation and fields of athletics are integrated, and majority to minority transfers are granted without question. According to the plaintiffs, the black community, the School Board, and the white community all have accepted the plan with the exception of the present appellants. The Advisory Committee provided in the plan has been appointed and is functioning with five white and five black members. One of the black members was elected by the members as chairman of the committee. Finally the plaintiffs state, “The committee successfully developed an educationally sound plan, one which, if continued to be implemented as its letter and spirit are intended, could rid our courts of the burden with which they have diligently labored for too many years.” (See plaintiffs’ brief, pp. 4-5.)

On November 19, 1973, a motion was filed by Jerry, Vicki and William Adams, minors, through Mrs. Fannie Adams, and others, seeking leave to intervene as plaintiffs. These are the same parties whom predecessor counsel for plaintiffs sought to add as parties plaintiff, which motion was denied by the District Court. The motion was filed by the same counsel who were associate counsel for plaintiffs but whose names were stricken in that capacity on motion approved by the District Court on July 13, 1973. Movers sought an evidentiary hearing in order that they might assert on behalf of applicants for intervention and the class of persons represented by them the deprivation of constitutional rights by the operation of a dual system of public schools in Caddo Parish under the currently approved plan of desegregation under which the School Board is operating. The motion was denied without a hearing by the District Court, and this appeal followed.

We are presented with an unusual three-cornered situation in which plaintiffs who brought this suit originally in 1965 assert through their counsel that they are satisfied with an approved biracial committee’s plan of desegregation which was adopted by the District Court. On the other hand, the applicants for intervention assert their dissatisfaction with the plan insofar as student assignment is concerned, though otherwise they are satisfied with the plan’s details relating to administrative staff, faculty, transportation, etc. The United States through Brian K. Landsberg, Chief, Education Section, Department of Justice, has filed its letter with the Clerk of this Court in which it states, “The United States does not intend to participate unless the Court so desires.”

Since the District Judge denied the motion of appellants to intervene, without an evidentiary hearing, we have no record before us except the pleadings, the contentions of the parties, and the representations in their briefs.

The problem here is involved with the fact that there are some one-race schools remaining in Caddo Parish under the plan of desegregation adopted by the District Court. In this regard the biracial committee stated in its report to the District Court, filed on June 1, 1973, the following:

While certain Elementary School zones are left in such a manner as to project a predominately one race attendance pattern (11 predominantly black and 9 predominantly white), under the plan all Junior High Schools and all Senior High Schools project a desegregated attendance pattern when the plan is fully implemented. As a result, no child in the Caddo Parish School District will be able to go through the school system without gaining the experience and benefits of attending schools where there are significant numbers of the opposite race.
The Committee has taken cognizance of the fact that Swann v. Board of Education has stated both that “the existence of some small number of one-race, or virtually one-race schools within a district is not in and of itself the mark of a system which still practices segregation by law” and “(w)here the . . . proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory.” The Committee submits that due to its bi-racial composition which included recognized leaders and representatives of a broad segment of both the black and the white communities, the fact that at no time was it necessary for the chairman of the committee to cast a vote, and the fact that the plan, as submitted,- has the unanimous vote of the entire committee, there can exist no element of discriminatory practice in this plan. In addition, testimony from all segments of both communities in public hearings clearly indicates that the plan as submitted will be generally in accord with the desires of the overwhelming majority of the black and white community. The Committee wishes to stress the point that possession of a certain right does not carry with it the obligation for the possessor of that right to avail himself of its privileges against his will. In addition, should anyone feel that he is not enabled to take advantage of his right through attending his neighborhood school as assigned by the plan, the majority to minority transfer provision provided in the General Provisions, coupled with the other provisions for changes in the Administration and Staff and the drastic change in attitude on the part of the entire community toward the problem of desegregation which has been so evident in the Committee’s public hearings, will make it simple, practical, and genuinely possible for such a person to do so. [Emphasis supplied.]

According to defendant School Board, as a result of the plan including the complete desegregation of junior and senior high, 75% of the students in Cad-do Parish will attend school in a desegregated situation with faculties which will within two years show a 50-50 ratio. The Board cites what it concludes is a similar situation in Northcross v. Board of Education of Memphis City Schools, 6 Cir., 1973, 489 F.2d 15, cert. denied, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed.2d 313 (1974).

Under the circumstances, however, we believe appellants are entitled to an evidentiary hearing on their motion to intervene. The Court must determine whether criteria in Hines v. Rapides Parish School Board, 5 Cir., 1973, 479 F.2d 762, are satisfied in that it must be determined whether the issues which appellants seek to bring to the attention of the Court were properly represented by plaintiffs. The District Court must, therefore, determine the class and who properly represents it. Appellants complain in the strongest terms that they represent a class who desire the achievement of greater desegregation than is necessary to satisfy plaintiffs. Thus we have an unusual contest between black groups represented by different counsel, some of whom were originally associated together when this suit was first filed, and we cannot determine on the record before us who most properly represents the rights of the black community in Caddo Parish. If it should be found in fact that appellants represent a class of black citizens of Caddo Parish whose constitutional rights are not properly protected by plaintiffs, they should be authorized to intervene as a matter of right, and to present evidence in support of their contentions. Rule 24, Fed.R.Civ.P. Obviously all other parties should be offered an equal opportunity to present evidence in support of their positions. Due process of law requires no less under the circumstances.

We have taken note of the suggestion that the District Judge who tried this case below should no longer be permitted to try the matter on remand. We reject appellants’ request. We are not given any specific allegations of fact why we should grant such relief. We have full confidence in the integrity and ability of the District Judge, that he will follow the law and grant to appellants as well as to the parties to this proceeding the constitutional rights to which they are entitled.

Vacated and remanded for further proceedings.

      . Cf. United States v. Jefferson County Bd. of Educ., 5 Cir., 1966, 372 F.2d 836, aff’d en banc, 380 F.2d 385, cert. denied sub nom. Caddo Parish School Bd. v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967). See also Hall v. St. Helena Parish School Bd., 5 Cir., 1969, 417 F.2d 801, cert. denied, 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180 (1969); see Jones v. Caddo Parish School Bd., 5 Cir., 1970, 421 F.2d 313.

      . The exact text of the position of the United States reads as follows :
      The present posture of this lawsuit considered, the United States of America, intervenor herein, interjects no objection to ordering implementation of this plan, as is more fully set out in its response filed herein.


author: DUNIWAY, Circuit Judge:

text:
    Marcelino MARTIN-MENDOZA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
    No. 72-2054.
    United States Court of Appeals, Ninth Circuit.
    July 1, 1974.

      Gary H. Manulkin (argued), Los Angeles, Cal., for appellant.
    Rex Heeseman, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appellee.
    Before DUNIWAY and ELY, Circuit Judges, and CRARY, District Judge:

       Honorable E. Avery Grary, United States District Judge, Los Angeles, California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Martin-Mendoza (Martin) seeks review of an order of deportation. The facts, as found by the I&NS hearing officer, are as follows:

Martin, a citizen of Mexico, was admitted to this country as a permanent resident in 1961. On November 20, 1966, Martin went to Tijuana, Mexico. There he met with two aliens and began making arrangements to facilitate their illegal entry into the United States. Knowing that the aliens did not have proper border-crossing papers, Martin agreed to supply forged papers and transportation to Los Angeles in exchange for future payments of over $100.00 per person. Three days later Martin returned to Tijuana where one of the aliens supplied him with a personal photograph. On November 27, 1966, he again went to Tijuana and this time gave the aliens false border-crossing cards. Later that day Martin met with the two aliens and a third person, Avalos-Magallon, in San Ysidro, California. He took possession of the false border-crossing cards and the four men, accompanied by Martin’s common law wife, proceeded north in Martin’s car. Shortly thereafter they were stopped and arrested by I&NS agents. On April 3, 1967, Martin pleaded guilty to one count of illegally transporting aliens and was fined $150.00. These facts support a finding of depo.rtability, and Martin does not argue otherwise.

In such a case as this, “[t]he scope of review ... is extremely limited.” Astudillo v. I&NS, 9 Cir., 1971, 443 F.2d 525, 527. The determination of the I&NS can be overturned only if there is “abuse of discretion, lack of procedural due process or where a finding required by the statute is unsupported by reasonable, substantial or probative evidence.” Kasravi v. I&NS, 9 Cir., 1968, 400 F.2d 675, 677, n. 3. The standards for review, though not the grounds, are set by statute, 8 U.S.C. §§ 1105a(a) (4), 1252; Espinoza Ojeda v. I&NS, 9 Cir., 1969, 419 F.2d 183, 186-187. The fact findings of the I&NS must be accepted by this court if they are supported by substantial evidence. See, e. g., Soo Yuen v. I&NS, 9 Cir., 1972, 456 F.2d 1107, 1108; Cubillos-Gonzalez v. I&NS, 9 Cir., 1965, 352 F.2d 782, 783; Tejeda v. I&NS, 9 Cir., 1965, 346 F.2d 389, 391-392.

We turn to Martin’s arguments.

1. Failure to make sufficient efforts to find Avalos-Magallon.

When Martín and his companions were arrested, Avalos-Magallon had a valid border-crossing card. There were two hearings before a special inquiry officer. At the first, it appeared that Avalos’ entry card had been taken from him and that he had gone back to Mexico. His whereabouts was unknown.

At the hearing Martin’s story was quite different from the facts as found by the hearing officer. In essence, he claimed that his trips were innocent, that Avalos asked to ride back with him, that he knew that Avalos had a valid border-crossing card, and that when he picked Avalos up, the latter had with him the other two aliens, who displayed similar cards, thus convincing him that he could lawfully bring them with him. The live testimony of one of the aliens, and an affidavit of the other, who had fled, were directly to the contrary. As to the testimony of the alien Mendoza, the hearing officer concluded: “From my observation of witness Mendoza and the manner of his testifying ... I found him to be a credible witness.” This finding of credibility should not be disturbed. Espinoza Ojeda v. I&NS, supra, 419 F.2d at 186-187. As to Martin’s story, the hearing officer stated: “I cannot find that the testimony of [Martin-Mendoza] is credible.” This finding of lack of credibility should also be left undisturbed.

Martin, however, says that Avalos, if he could be found, would corroborate his story. He claimed, and now claims, that the I&NS had a duty to find Avalos, and that its efforts were insufficient. On appeal, the Board of Immigration Appeals remanded. Contrary to the assertions of Martin’s counsel, it said nothing about a need to make further efforts to find Avalos, but it did require “that every attempt should be made to find and present the statement which the witness Flemming claims was made by Avalos on November 27, 1966; and that both parties should be given the opportunity to present such further evidence as they may desire, which is relevant to the proceedings herein; and that the special inquiry officer’s decision be made on the basis of the record as it stands at the completion of such reopened proceedings.”

After the remand, the I&NS did attempt to find Avalos. The border-crossing card taken from Avalos gave two addresses, one in Tijuana and one (his birthplace and the home of his father) in Villa Victoria, Michoacan, some 250 miles from Mexico City. Investigations in both places turned up nothing. No one was found who even knew Avalos, much less where he was. Martin seizes on a suggestion from an I&NS investigator who had been checking at Villa Victoria that a photograph of Avalos “would be most helpful.” Whether one was sent does not appear, nor does it appear whether the I&NS had one. Martin claims that it did, and that the photograph was not sent to the investigator. Assuming that Martin is right, we do not think that failure to use this technique in trying to find Avalos is fatal. At the remand hearing, the hearing officer found that “I am satisfied that the Immigration Service has made a conscientious effort to locate Jose Jorge Avalos-Magallon and that Mr. Avalos cannot be located.” The Board of Immigration Appeals, on a second appeal, came to a similar conclusion: “There is evidence which establishes to our satisfaction that the Service has made a concerted effort to locate Avalos-Magailon in Mexico without success.” The record supports these findings. The expertise of the I&NS in assessing the difficulties of apprehending persons in a foreign country should not be lightly dismissed. See Tejeda v. I&NS supra,, 346 F.2d at 391.

There is no evidence that the I&NS got rid of Avalos to prevent his being interviewed or called as a witness. The only evidence as to any statement by Avalos is in the report of his arrest, which was located and produced at the second hearing. Avalos told the arresting officer that he was going to Los Angeles to find work, that Martin knew it, and that Avalos was to pay Martin $10.-00 for taking him there.' This is hardly evidence favorable to Martin, and it is no basis for a claim that the I&NS intentionally got rid of a potentially adverse witness.

The only evidence in support of Martin’s claim that Avalos would be a favorable witness is Martin’s story of what happened. It is considerably weakened by his testimony that he did not really know Avalos, that he had only met him twice, both times accidentally in Tijuana, once at a feria and the second time on the day of the arrest. He admitted that he had no idea where Avalos was, and that he knew no one who knew Avalos.

The foregoing is much too thin a reed to support a claim that Martin was deprived of due process. This is not a criminal case, to which the Sixth Amendment applies, as is United States v. Mendez-Rodriguez, 9 Cir., 1971, 450 F.2d 1. See Lavoie v. I&NS, 9 Cir., 1969, 418 F.2d 732, 734.

2. Use of the affidavit of Lopez-Mendez.

Lopez was one of the two aliens found in Martin’s car. He gave a sworn statement to an I&NS agent. The I&NS endeavored to keep him in this country by “farming him out” (see United States v. Verduzco-Macias, 9 Cir., 1972, 463 F.2d 105; United States v. Tsutagawa, 9 Cir., 1974, 500 F.2d 420 (1974)), but he fled and could not be found.

At the first hearing, Lopez’s statement was identified by the agent, who also testified that Lopez made the statements. These corroborated the statements of the other alien, Mendoza, who testified and was cross-examined at length. Martin’s counsel refers to the statement as unsigned, but the copy in the record shows a signature.

Use of this statement or affidavit does not require a reversal. Hearsay is admissible in administrative proceedings, which need not strictly follow conventional evidence rules. See Marlowe v. I&NS, 9 Cir., 1972, 457 F.2d 1314; Navarrette-Navarrette v. Landon, 9 Cir., 1955, 223 F.2d 234, 237. The tests for admissibility are fundamental fairness and probativeness. Marlowe, supra. Both tests are satisfied here: Lopez-Mendez swore to the statement, it was verified as being his statement, and he was unavailable as a witness because he had fled. It was obviously probative. Under Rule 804(a)(5) and (b)(4) of the Proposed Rules of Evidence for the United States Courts and Magistrates, it would probably be admissible in a trial in court.

Moreover, the hearing officer knew how to evaluate it. He said:

The sworn statement of Jose Lopez-Mendez is also entitled to some consideration, although its weight is necessarily impaired by the fact that the affiant could not be presented for cross-examination and, therefore, there has been no opportunity to determine his credibility.

3. The question whether there was an “entry” by Martin into the United States.

Martin relies upon Rosenberg v. Fleuti, 1963, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000, to support his claim that there was never an “entry” within the meaning of the statute which would subject him to exclusion. In that case, however, the Court said that “if the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” (At 462, 83 S.Ct. at 1812.) The evidence shows that Martin went three times to Tijuana for just such a purpose.

4. Denial of appointed counsel.

Martin claims that he was deprived of due process because, during part of the hearings conducted after remand by the Board of Immigration Appeals, he was without counsel and was indigent. To this there are two answers.

1. We have repeatedly held that a respondent at a deportation hearing is not entitled to counsel at the government’s expense. Dunn-Marin v. I&NS, 9 Cir., 1970, 426 F.2d 894, 895, and cases cited.

2. At nearly every stage of the proceedings against him, Martin had counsel — at the first hearing, on his appeal to the Board, at the only part of the hearing on remand at which substantial evidence was received, on his second appeal to the Board, and in this court. Lack of counsel at the one brief session at which some evidence as to the inability of the I&NS to find Avalos was received, and the examiner briefly questioned Martin as to his acquaintance with Avalos, does not support a claim of lack of due process. See Villanueva-Jurado v. I&NS, 5 Cir., 1973, 482 F.2d 886, 888; Henriques v. I&NS, 2 Cir., 1972, 465 F.2d 119, 120-121.

Before us, counsel claims prejudice in two respects. First, he asserts that he would have followed up on what was done in response to the request of the investigator who was looking for Avalos for a photograph. For the purpose of this decision, we assume that there was no response. Second, he asserts that he would have objected to the questions put to Martin as prosecutorial in style and leading. Neither objection would have been good.

The order of deportation is affirmed.