source: Caselaw Access Project

author: Mr. Justice Brennan

license: Public Domain

text:
    HICKLIN et al. v. ORBECK, COMMISSIONER, DEPARTMENT OF LABOR OF ALASKA, et al.
    No. 77-324.
    Argued March 21, 1978
    Decided June 22, 1978

      Brennan, J., delivered the opinion for a unanimous Court.

      Robert H. Wagstaff argued the cause for appellants. With him on the briefs was Lee S. Glass.

      Ronald W. Lorensen, Assistant Attorney General of Alaska, argued the cause and filed a brief for appellees.

      Briefs of amici curiae urging reversal were filed by Edwin Vieira, Jr., for the National Right to Work Legal Defense Foundation; and by Peabody Testing — Bill Miller X-Ray, Inc.

        Ronald Y. Amemiya, Attorney General, and Lawrence D. Kumabe and Michael A. Lilly, Deputy Attorneys General, filed a brief for the State of Hawaii as amicus curiae urging affirmance.

   Mr. Justice Brennan

delivered the opinion of the Court.

In 1972, professedly for the purpose of reducing unemployment in the State, the Alaska Legislature passed an Act entitled “Local Hire Under State Leases.” Alaska Stat. Ann. §§ 38.40.010 to 38.40.090 (1977). The key provision of “Alaska Hire,” as the Act has come to be known, is the requirement that “all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party” contain a provision “requiring the employment of qualified Alaska residents” in preference to nonresidents. Alaska Stat. Ann. § 38.40.030 (a) (1977). This employment preference is administered by providing persons meeting the statutory requirements for Alaskan residency with certificates of residence — -“resident cards” — that can be presented to an employer covered by the Act as proof of residency. 8 Alaska Admin. Code 35.015 (1977). Appellants, individuals desirous of securing jobs covered by the Act but unable to qualify for the necessary resident cards, challenge Alaska Hire as violative of both the Privileges and Immunities Clause of Art. IY, § 2, and the Equal Protection Clause of the Fourteenth Amendment.

I

Although enacted in 1972, Alaska Hire was not seriously enforced until 1975, when construction on the Trans-Alaska Pipeline was reaching its peak. At that time, the State Department of Labor began issuing residency cards and limiting to resident cardholders the dispatchment to oil pipeline jobs. On March 1, 1976, in response to “numerous complaints alleging that persons who are not Alaska residents have been dispatched on pipeline jobs when qualified Alaska residents were available to fill the jobs,” Executive Order #76-1, Alaska Dept, of Labor (Mar. 1, 1976) (emphasis in original), Edmund Orbeck, the Commissioner of Labor and one of the appellees here, issued a cease-and-desist order to all unions supplying pipeline workers enjoining them “to respond to' all open job calls by dispatching all qualified Alaska residents before any non-residents are dispatched.” Ibid, (emphasis in original). As a result, the appellants, all but one of whom had previously worked on the pipeline, were prevented from obtaining pipeline-related work. Consequently, on April 28, 1976, appellants filed a complaint in the Superior Court in Anchorage seeking declaratory and injunctive relief against enforcement of Alaska Hire.

At the time the suit was filed, the provision setting forth the qualifications for Alaskan residency for purposes of Alaska Hire, Alaska Stat. Ann. § 38.40.090, included a one-year durational residency requirement. Appellants attacked that requirement as well as the flat employment preference given by Alaska Hire to state residents. By agreement of the parties, consideration of a motion for a preliminary injunction was consolidated with the determination of the suit on its merits. The case was submitted on affidavits, depositions, and memo-randa of law; no oral testimony was taken. On July 21, 1976, the Superior Court upheld Alaska Hire in its entirety and denied appellants all relief. On appeal, the Alaska Supreme Court unanimously held that Alaska Hire’s one-year durational residency requirement was unconstitutional under both the state and federal Equal Protection Clauses, 565 P. 2d 159, 165 (1977), and held further that a durational residency requirement in excess of 30 days was constitutionally infirm. Id., at 171. By a vote of 3 to 2, however, the court held that the Act’s general preference for Alaska residents was constitutionally permissible. Appellants appealed the State Supreme Court’s judgment insofar as it embodied the latter holding, and we noted probable jurisdiction. 434 U. S. 919 (1977). We reverse.

II

Preliminarily, we hold that this case is not moot. Despite the Alaska Supreme Court’s invalidation of the one-year durational residency requirement, a controversy still exists between at least five of the appellants- — Tommy Ray Woodruff, Frederick A. Mathers, Emmett Ray, Betty Cloud, and Joseph G. O’Brien — and the state appellees. These five appellants have all sworn that they are not residents of Alaska, Record 43, 47, 49, 96, 124. Therefore, none of them can satisfy the element of the definition of “resident” under § 38.40.090 (1) (D) that requires that an individual “has not, within the period of required residency, claimed residency in another state.” They thus have a continuing interest in restraining the enforcement of Alaska Hire’s discrimination in favor of residents of that State.

Appellants’ principal challenge to Alaska Hire is made under the Privileges and Immunities Clause of Art. IV, § 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” That provision, which “appears in the so-called States’ Relations Article, the same Article that embraces the Full Faith and Credit Clause, the Extradition Clause . . . , the provisions for the admission of new States, the Territory and Property Clause, and the Guarantee Clause,” Baldwin v. Montana Fish and Game Comm’n, 436 U. S. 371, 379 (1978), “establishes a norm of comity,” Austin v. New Hampshire, 420 U. S. 656, 660 (1975), that is to prevail among the States with respect to their treatment of each other’s residents. The purpose of the Clause, as described in Paul v. Virginia, 8 Wall. 168, 180 (1869), is

“to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it •secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this.”

Appellants’ appeal to the protection of the Clause is strongly supported by this Court’s decisions holding violative of the Clause state discrimination against nonresidents seeking to ply their trade, practice their occupation, or pursue a common calling within the State. For example, in Ward v. Maryland, 12 Wall. 418 (1871), a Maryland statute regulating the sale of most goods in the city of Baltimore fell to the privileges and immunities challenge of a New Jersey resident against whom the law discriminated. The statute discriminated against nonresidents of Maryland in several ways: It required nonresident merchants to obtain licenses in order to practice their trade without requiring the same of certain similarly situated Maryland merchants; it charged nonresidents a higher license fee than those Maryland residents who were required to secure licenses; and it prohibited both resident and nonresident merchants from using nonresident salesmen, other than their regular employees, to sell their goods in the city. In holding that the statute violated the Privileges and Immunities Clause, the Court observed that “the clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation.” Id., at 430. Ward thus recognized that a resident of one State is constitutionally entitled to travel to another State for purposes of employment free from discriminatory restrictions in favor of state residents imposed by the other State.

Again, Toomer v. Witsell, 334 U. S. 385 (1948), the leading modern exposition of the limitations the Clause places on a State’s power to bias employment opportunities in favor of its own residents, invalidated a South Carolina statute that required nonresidents to pay a fee 100 times greater than that paid by residents for a license to shrimp commercially in the three-mile maritime belt off the coast of that State. The Court reasoned that although the Privileges and Immunities Clause “does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it,” id., at 396, “[i]t does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” Ibid. A “substantial reason for the discrimination” would not exist, the Court explained, “unless there is something to indicate that non-citizens constitute a peculiar source of the evil at which the [discriminatory] statute is aimed.” Id,., at 398. Moreover, even where the presence or activity of nonresidents causes or exacerbates the problem the State seeks to remedy, there must be a “reasonable relationship between the danger represented by non-citizens, as a class, and the . . . discrimination practiced upon them.” Id., at 399. Toomer’s analytical framework was confirmed in Mullaney v. Anderson, 342 U. S. 415 (1952), where it was applied to invalidate a scheme used by the Territory of Alaska for the licensing of commercial fishermen in territorial waters; under that scheme residents paid a license fee of only $5 while nonresidents were charged $50.

Even assuming that a State may validly attempt to alleviate its unemployment problem by requiring private employers within the State to discriminate against nonresidents — an assumption made at least dubious by Ward-— it is clear that under the Toomer analysis reaffirmed in Mul-laney, Alaska Hire’s discrimination against nonresidents cannot withstand scrutiny under the Privileges and Immunities Clause. For although the statute may not violate the Clause if the State shows “something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed,” Toomer v. Witsell, supra, at 398, and, beyond this, the State “has no burden to prove that its laws are not violative of the . . . Clause,” Baldwin v. Montana Fish and Game Gomm’n, 436 U. S., at 402 (Brennan, J., dissenting), certainly no showing was made on this record that nonresidents were “a peculiar source of the evil” Alaska Hire was enacted to remedy, namely, Alaska’s “uniquely high unemployment.” Alaska Stat. Ann. § 38.40.020 (1977). What evidence the record does contain indicates that the major cause of Alaska’s high unemployment was not the influx of nonresidents seeking employment, but rather the fact that a substantial number of Alaska’s jobless residents — especially the unemployed Eskimo and Indian residents — were unable to secure employment either because of their lack of education and job training or because of their geographical remoteness from job opportunities; and that the employment of nonresidents threatened to deny jobs to Alaska residents only to the extent that jobs for which untrained residents were being prepared might be filled by nonresidents before the residents’ training was completed.

Moreover, even if the State’s showing is accepted as sufficient to indicate that nonresidents were “a peculiar source of evil,” Toomer and Mullmey compel the conclusion that Alaska Hire nevertheless fails to pass constitutional muster. For the discrimination the Act works against nonresidents does not bear a substantial relationship to the particular “evil” they are said to present. Alaska Hire simply grants all Alaskans, regardless of their employment status, education, or training, a flat employment preference for all jobs covered by the Act. A highly skilled and educated resident who has never been unemployed is entitled to precisely the same preferential treatment as the unskilled, habitually unemployed Arctic Eskimo enrolled in a job-training program. If Alaska is to attempt to ease its unemployment problem by forcing employers within the State to discriminate against nonresidents — again, a policy which may present serious constitutional questions — the means by which it does so must be more closely tailored to aid the unemployed the Act is intended to benefit. Even if a statute granting an employment preference to unemployed residents or to residents enrolled in job-training programs might be permissible, Alaska Hire’s across-the-board grant of a job preference to all Alaskan residents clearly is not.

Relying on McCready v. Virginia, 94 U. S. 391 (1877), however, Alaska contends that because the oil and gas that are the subject of Alaska Hire are owned by the State, this ownership, of itself, is sufficient justification for the Act’s discrimination against nonresidents, and takes the Act totally without the scope of the Privileges and Immunities Clause. As the State sees it “the privileges and immunities clause [does] not apply, and was never meant to apply, to decisions by the states as to how they would permit, if at all, the use and distribution of the natural resources which they own . . . .” Brief for Appellees 20 n. 14. We do not agree that the fact that a State owns a resource, of itself, completely removes a law concerning that resource from the prohibitions of the Clause. Although some courts, including the court below, have read McCready as creating an “exception” to the Privileges and Immunities Clause, we have just recently confirmed that “[i]n more recent years . . . the Court has recognized that the States’ interest in regulating and controlling those things they claim to ‘own’ ... is by no means absolute.” Baldwin v. Montana Fish and Game Comm’n, 436 U. S., at 385. Rather than placing a statute completely beyond the Clause, a State’s ownership of the property with which the statute is concerned is a factor — although often the crucial factor — to be considered in evaluating whether the statute’s discrimination against noncitizens violates the Clause. Dispositive though this factor may be in many cases in which a State discriminates against nonresidents, it is not dispositive here.

The reason is that Alaska has little or no proprietary interest in much of the activity swept within the ambit of Alaska Hire; and the connection of the State’s oil and gas with much of the covered activity is sufficiently attenuated so that it cannot justifiably be the basis for requiring private employers to discriminate against nonresidents. The extensive reach of Alaska Hire is set out in Alaska Stat. Ann. § 38.40.050 (a) (1977). That section provides:

“The provisions of this chapter apply to all employment which is a result of oil and gas leases, easements, leases or right-of-way permits for oil or gas pipeline purposes, unitization agreements [] or any renegotiation of any of the preceding to which the state is a party after July 7, 1972; however, the activity which generates the employment must take place inside the state and it must take place either on the property under the control of the person subject to this chapter or be directly related to activity taking place on the property under his control and the activity must be performed directly for the person subject to this chapter or his contractor or a subcontractor of his contractor or a supplier of his contractor or subcontractor.” (Emphasis added.)

Under this provision, Alaska Hire extends to employers who have no connection whatsoever with the State’s oil and gas, perform no work on state land, have no contractual relationship with the State, and receive no payment from the State. The Act goes so far as to reach suppliers who provide goods or services to subcontractors who, in turn, perform work for contractors despite the fact that none of these employers may themselves have direct dealings with the State’s oil and gas or ever set foot on state land. Moreover, the Act’s coverage is not limited to activities connected with the extraction of Alaska’s oil and gas. It encompasses, as emphasized by the dissent below, “employment opportunities at refineries and in distribution systems utilizing oil and gas obtained under Alaska leases.” 565 P. 2d, at 171. The only limit of any consequence on the Act’s reach is the requirement that “the activity which generates the employment must take place inside the state.” Although the absence of this limitation would be noteworthy, its presence hardly is; for it simply prevents Alaska Hire from having what would be the surprising effect of requiring potentially covered out-of-state employers to discriminate against residents of their own State in favor of nonresident Alaskans. In sum, the Act is an attempt to force virtually all businesses that benefit in some way from the economic ripple effect of Alaska's decision to develop its oil and gas resources to bias their employment practices in favor of the State’s residents. We believe that Alaska’s ownership of the oil and gas that is the subject matter of Alaska Hire simply constitutes insufficient justification for the pervasive discrimination against nonresidents that the Act mandates.

Although appellants raise no Commerce Clause challenge to the Act, the mutually reinforcing relationship between the Privileges and Immunities Clause of Art. IV, § 2, and the Commerce Clause- — a relationship that stems from their common origin in the Fourth Article of the Articles of Confederation and their shared vision of federalism, see Baldwin v. Montana Fish and Game Comm’n, 436 U. S., at 379-380 — renders several Commerce Clause decisions appropriate support for our conclusion. West v. Kansas Natural Gas, 221 U. S. 229 (1911), struck down an Oklahoma statutory scheme that completely prohibited the out-of-state shipment of natural gas found within the State. The Court reasoned that if a State could so prefer its own economic well-being to that of the Nation as a whole, “Pennsylvania might keep its coal, the Northwest its timber, {and] the mining States their minerals,” so that “embargo may be retaliated by embargo” with the result that “commerce [would] be halted at state lines.” Id., at 255. West was held to be controlling in Pennsylvania v. West Virginia, 262 U. S. 553 (1923), where a West Virginia statute that effectively required natural gas companies within the State to satisfy all fuel needs of West Virginia residents before transporting any natural gas out of the State was held to violate the Commerce Clause. West and Pennsylvania v. West Virginia thus established that the location in a given State of a resource bound for interstate commerce is an insufficient basis for preserving the benefits of the resource exclusively or even principally for that State's residents. Foster Packing Co. v. Haydel, 278 U. S. 1 (1928), went one step further; it limited the extent to which a State’s purported ownership of certain resources could serve as a justification for the State’s economic discrimination in favor of residents. There, in the face of Louisiana’s claim that the State owned all shrimp within state waters, the Court invalidated a Louisiana law that required the local processing of shrimp taken from Louisiana marshes as a prerequisite to their out-of-state shipment. The Court observed that “by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control.” Id., at 13.

West, Pennsylvania v. West Virginia, and Foster Packing thus establish that the Commerce Clause circumscribes a State’s ability to prefer its own citizens in the utilization of natural resources found within its borders, but destined for interstate commerce. Like Louisiana’s shrimp in Foster Packing, Alaska’s oil and gas here are bound for out-of-state consumption. Indeed, the construction of the Trans-Alaska Pipeline, on which project appellants’ nonresidency has prevented them from working, was undertaken expressly to accomplish this end. Although the fact that a state-owned resource is destined for interstate commerce does not, of itself, disable the State from preferring its own citizens in the utilization of that resource, it does inform analysis under the Privileges and Immunities Clause as to the permissibility of the discrimination the State visits upon nonresidents based on its ownership of the resource. Here, the oil and gas upon which Alaska hinges its discrimination against nonresidents are of profound national importance. On the other hand, the breadth of the discrimination mandated by Alaska Hire goes far beyond the degree of resident bias Alaska’s ownership of the oil and gas can justifiably support. The confluence of these realities points to but one conclusion: Alaska Hire cannot withstand constitutional scrutiny. As Mr. Justice Cardozo observed in Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935), the Constitution “was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.”

Reversed.

      The regulations implementing the Act further require that all nonresidents be laid off before any resident "working in the same trade or craft” is terminated: “[T]he- nonresident may be retained only if no resident employee is qualified to fill the position.” 8 Alaska Admin. Code 35.011 (1977). See also 8 Alaska Admin. Code 35.042 (4) (1977).

       The complete text of § 38.40.030 (a) is as follows:
      “In order to create, protect and preserve the right of Alaska residents to employment, the commissioner of natural resources shall incorporate into all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party, provisions requiring the lessee to comply with applicable laws and regulations with regard to the employment of Alaska residents, a. provision requiring the employment of qualified Alaska residents, a provision prohibiting discrimination against Alaska residents and, when in the determination of the commissioner of natural resources it is practicable, a provision requiring compliance with the Alaska Plan, all in accordance with the provisions of this chapter.”

       See Trans Alaska Pipeline Rate Cases, 436 U. S. 631 (1978); Trans-Alaska Pipeline Authorization Act, 87 Stat. 584, 43 U. S. C. § 1651 et seq. (1970 ed., Supp. Y).

      App. 13-14. The vast majority of pipeline jobs were filled through union dispatchment. Deposition of David Finrow, Deputy Director of the Wage and Hour Division of the Alaska Dept, of Labor, in No. 3025 (Sup. Ct. Alaska), pp. 18-19, 28, 48.

       Section 38.40.090 provides:
      “In this chapter
      “(1) 'resident’ means a person who
      “(A) except for brief intervals, military service, attendance at an educational or training institution, or for absences for good cause, is physically present in the state for a period of one year immediately before the time his status is determined;
      “(B) maintains a place of residence in the state;
      “(C) has established residency for voting purposes in the state;
      “(D) has not, within the period of required residency, claimed residency in another state; and
      “(E) shows by all attending circumstances that his intent is to make Alaska his permanent residence.”

       Appellees have not cross-appealed this portion of the Alaska Supreme Court’s decision, which rests upon an independent and adequate state ground. Murdock v. Memphis, 20 Wall. 590 (1875).

       As to the remaining three appellants — Sidney S. Hieklin, Ruby E. Dorman, and Harry A. Browning — the case does appear moot. At the time this suit was instituted, all three claimed to be Alaskan residents, but none had lived in the State continuously for one year. Record 45, 51-52, 126-127. Consequently, the only aspect of Alaska Hire they challenged was the Act’s one-year durational residency requirement. When this requirement was held invalid by the Alaska Supreme Court, their controversy with the appellees seems to have terminated.

       Although this Court has not always equated state residency with state citizenship, compare Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 78-79 (1920), and Blake v. McClung, 172 U. S. 239, 246-247 (1898), with Southern R. Co. v. Mayfield, 340 U. S. 1, 3-4 (1950); Douglas v. New Haven R. Co., 279 U. S. 377, 386-387 (1929); and La Tourette v. McMaster, 248 U. S. 465, 469-470 (1919), it is now established that the terms “citizen” and “resident” are “essentially interchangeable,” Austin v. New Hampshire, 420 U. S. 656, 662 n. 8 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause of Art. IV, § 2. See Toomer v. Witsell, 334 U. S. 385, 397 (1948).

      Cf. Edwards v. California, 314 U. S. 160 (1941).

       For example, a report quoted in the State’s Memorandum in Opposition to Plaintiffs’ Motion for Partial Preliminary Injunction and Second Motion for Preliminary Injunction, Record 58, observed:
      “The skill levels of in-migrants and seasonal workers are generally higher than those of the unemployed or under-employed resident workers. Their ability to command jobs in Alaska is a sympton of, rather than the cause of conditions resulting in high unemployment rates, particularly among Alaska Natives. Those who need the jobs the most tend to be undereducated, untrained, or living in areas of the state remote from job opportunities. Unless unemployed residents — most of whom are Eskimos and Indians' — have access to job markets and receive the education and training required to fit them into Alaska’s increasingly technological economy and unless there is a restructuring of labor demands, new jobs will continue to be filled by persons from other states who have the necessary qualifications.” Federal Field Committee for Development Planning in Alaska, Economic Outlook for Alaska 311-312 (1971) (emphasis added; footnote omitted).

       At the time Alaska was admitted into the Union on January 3, 1959, 99% of all land within Alaska’s borders was owned by the Federal Government. In becoming a State, Alaska was granted and became entitled to select approximately 103 million acres of those federal lands. Alaska Statehood Law, 72 Stat. 340, § 6, note preceding 48 U. S. C. § 21. The selection process is not yet complete, but since 1959 large portions of land have been conveyed to the State, in fee, by the Federal Government. Full title to those lands and to the minerals on and below them is vested in the State. 72 Stat. 342, § 6 (i), note preceding 48 U. S. C. §21.

       The term “unitization agreement” is not defined in the Act. Alaska’s Commissioner of Natural Resources gave the following definition of the term:
      “Well, unitization agreement is an agreement between the operators and any given oil field as to the equity that each of them would have with respect to the oil and gas resources in that field. And in some cases that word is used to also include something called the ‘Plan of Operations’, which sets out the way in which an oil field or gas field would be operated pursuant to the State’s conservation laws.” Deposition of Guy R. Martin in No. 3025 (Sup. Ct. Alaska), p. 5.

       According to one of the administrative regulations implementing Alaska Hire, “[sjuppliers shall have the same hiring requirements as an employer covered by this chapter, as to that portion of their supply business that is the result of a project or activity of a lessee, contractor or subcontractor.” 8 Alaska Admin. Code 35.080 (a) (1977).

       The Commissioner of Natural Resources expressed this understanding of the scope of the Act:

        Mr. Martin: "... I think it would cover relationships such as anything on a work pad or an associated construction road or possibly a site for a support camp or construction camp.”

        Mr. Wagstaff (attorney for appellants): “What about things such as docks if shipping is being used?”

        Mr. Martin: “I would think that it could possibly include that.” Deposition of Guy R. Martin, supra, at 4.

        Heim v. McCall, 239 U. S. 175 (1915) and Crane v. New York, 239 U. S. 195 (1915) — if they have any remaining vitality, see Sugarman v. Dougall, 413 U. S. 634, 643-645 (1973); C. D. R. Enterprises, Ltd. v. Board of Education, 412 F. Supp. 1164 (EDNY 1976), summarily aff’d sub nom. Lefkowitz v. C. D. R. Enterprises, Ltd., 429 U. S. 1031 (1977)— do not suggest otherwise. In those cases, a New York statute that limited employment “in the construction of public works” to United States citizens and also required that an employment preference be given to New York citizens in such projects was upheld against challenges under both the Constitution and the Treaty of 1871 with Italy. Although the Art. IV, § 2, Privileges and Immunities Clause, along with the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment, was listed as one of the constitutional bases for attacking the statute, no out-of-state United States citizen challenged the law. As a consequence, both the appellants and the Court were concerned almost exclusively with the statute’s discrimination against resident aliens. This was reflected in the Court’s holding, which was limited to the Fourteenth Amendment and Treaty challenges and expressed no view on appellants’ passing Art. IV, § 2, privileges and immunities claim.

       That Article provided: “The better to- secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to- ail privileges and immunities of free citizens in the several states; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively; provided, that such restrictions shall not extend so far as to prevent the removal of property, imported into any State, to any other State of which the owner is an inhabitant; provided, also that no imposition, duties or restriction, shall be laid by any State on the property of the United States, or either of them.” 9 Journal of the Continental Congress 908-909 (1777) (Library of Congress ed., 1907).

       In authorizing the construction of the Trans-Alaska Pipeline, Congress expressly found that “[t]he early development and delivery of oil and gas from Alaska’s North Slope to domestic markets is in the national interest because of growing domestic shortages and increasing dependence upon insecure foreign sources.” 43 U. S. C. § 1651 (a) (1970 ed., Supp. V) (emphasis added).

       In enacting the Alaska Natural Gas Transportation Act of 1976, 15 U. S. C. § 719 et seq. (1976 ed.) Congress declared:
      “(1) a natural gas supply shortage exists in the contiguous States of the United States;
      “(2) large reserves of natural gas in the State of Alaska could help significantly to alleviate this supply shortage;
      “(3) the expeditious construction of a viable natural gas transportation system for delivery of Alaska natural gas to United States markets is in the national interest; and
      “(4) the determinations whether to authorize a transportation system for delivery of Alaska natural gas to the contiguous States and, if so, which system to select, involve questions of the utmost importance respecting national energy policy, international relations, national security, and economic and environmental impact, and therefore should appropriately be addressed by the Congress and the President in addition to those Federal officers and agencies assigned functions under law pertaining to the selection, construction, and initial operation of such a system.” 15 U. S. C. § 719 (1976 ed.). See n. 17, supra.

       In light of our conclusion that Alaska Hire is invalid under the Privileges and Immunities Clause of Art. IV, §2, we have no occasion to address appellants’ challenges to the Act under the Equal Protection Clause of the Fourteenth Amendment.


author: Mr. Justice White Mr. Justice Powell, Mr. Justice Rehnquist, Mr. Justice Marshall,

text:
    WISE, MAYOR OF DALLAS, et al. v. LIPSCOMB et al.
    No. 77-529.
    Argued April 26, 1978 —
    Decided June 22, 1978

      White, J., announced the Court’s judgment and delivered an opinion, in which Stewart, J., joined. Powell, J., filed an opinion concurring in part and concurring in the judgment, in which Burger, C. J., and Blackmun and Rehnquist, JJ., joined, post, p. 547. Rehnquist, J., filed a separate opinion, in which Burger, C. J., and Stewart and Powell, JJ., joined, post, p. 549. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 550.

      Joseph G. Werner argued the cause for petitioners. With him on the brief was Lee E. Holt.

      James A. Johnston argued the cause for respondents. With him on the brief were Edward B. Cloutman III and Walter L. Irvin. Joaquin G. Avila, Vilma S. Martinez, and Morris J. Bailer filed a brief for respondents Callejo et al.

      Peter Buscemi argued the cause pro hac vice for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Assistant Attorney General Days, Brian K. Landsberg, and Robert J. Reinstein.

        Charles A. Bane, Thomas D. Barr, Armand Derfner, Norman Redlich, Frank R. Parker, Thomas J. Ginger, Robert A. Murphy, Norman J. Chachkin, and William E. Caldwell filed a brief for the Lawyers Committee for Civil Rights Under Law as amicus curiae urging affirmance.

   Mr. Justice White

announced the judgment of the Court and delivered an opinion in which Mr. Justice Stewart joined.

This case involves the recurring issue of distinguishing between legislatively enacted and judicially imposed reappor-tionments of state legislative bodies.

I

In 1971 respondents, Negro and Mexican-American residents of Dallas, Tex., filed suit in the United States District Court for the Northern District of Texas against petitioners, the Mayor and members of the City Council of Dallas, the city’s legislative body, alleging that the at-large system of electing council members unconstitutionally diluted the vote of racial minorities. They sought a declaratory judgment to this effect and an injunction requiring the election of councilmen from single-member districts. The complaint was dismissed for failure to state a claim, but the Court of Appeals for the Fifth Circuit disagreed and remanded. Lipscomb v. Jonsson, 459 F. 2d 335 (1972).

On January 17, 1975, after certifying a plaintiff class consisting of all Negro citizens of the city of Dallas and following an evidentiary hearing, the District Court orally declared that the system of at-large elections to the Dallas City Council unconstitutionally diluted the voting strength of Negro citizens. The District Court then “afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional.” App. 29.

On January 20, 1975, the City Council passed a resolution which stated that the Council intended to enact an ordinance which would provide for eight Council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at-large. This plan was submitted to the District Court on January 24, 1975. The court then conducted a remedy hearing “to determine the constitutionality of the new proposed plan by the City of Dallas.” Ibid. After an extensive hearing, the court announced in an oral opinion delivered on February 8, 1975, that the city’s plan met constitutional guidelines and was acceptable and that it would issue a written opinion in the near future. Two days later, the City Council formally enacted the promised ordinance, and on March 25, the court issued a memorandum opinion containing its findings of fact and conclusions of law and again sustaining the city plan as a valid legislative Act. 399 F. Supp. 782 (1975).

The Court of Appeals reversed. 551 F. 2d 1043 (1977). It held that the District Court erred by evaluating the city’s actions only under constitutional standards rather than also applying the teaching of East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976), that, absent exceptional circumstances, judicially imposed reapportionment plans should employ only single-member districts. It concluded that no considerations existed in this case which justified a departure from this preference and remanded with instructions that the District Court require the city to reapportion itself into an appropriate number of single-member districts. We granted certiorari, 434 U. S. 1008 (1978), and reverse on the grounds that the Court of Appeals misapprehended East Carroll Parish School Bd. and its predecessors.

II

The Court has repeatedly held that redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt. Connor v. Finch, 431 U. S. 407, 414-415 (1977); Chapman v. Meier, 420 U. S. 1, 27 (1975); Gaffney v. Cummings, 412 U. S. 735, 749 (1973); Burns v. Richardson, 384 U. S. 73, 84-85 (1966). When a federal court declares an existing apportionment scheme unconstitutional, it is therefore, appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan. The new legislative plan, if forthcoming, will then be the governing law unless it, too, is challenged and found to violate the Constitution. “ [A] State’s freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.” Id., at 86.

Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the “unwelcome obligation,” Connor v. Finch, supra, at 415, of the federal court to devise and impose a reapportionment plan pending later legislative action. In discharging this duty, the district courts “will be held to stricter standards . . . than will a state legislature . . . .” 431 U. S., at 414. Among other requirements, a court-drawn plan should prefer single-member districts over multimember districts, absent persuasive justification to the contrary. Connor v. Johnson, 402 U. S. 690, 692 (1971). We have repeatedly reaffirmed this remedial principle. Connor v. Williams, 404 U. S. 549, 551 (1972); Mahan v. Howell, 410 U. S. 315, 333 (1973); Chapman v. Meier, supra, at 18; East Carroll Parish School Bd. v. Marshall, supra, at 639.

The requirement that federal courts, absent special circumstances, employ single-member districts when they impose remedial plans, reflects recognition of the fact that “the practice of multimember districting can contribute to voter confusion, make legislative representatives more remote from their constituents, and tend to submerge electoral minorities and overrepresent electoral majorities . . * .” Connor v. Finch, supra, at 415. See also Chapman v. Meier, supra, at 15-16. Despite these dangers, this Court has declined to hold that state multimember districts are per se unconstitutional. See, for example, Whitcomb v. Chavis, 403 U. S. 124 (1971); Fortson v. Dorsey, 379 U. S. 433 (1965); Burns v. Richardson, supra; Chapman v. Meier, supra, at 15. A more stringent standard is applied to judicial reapportionments, however, because a federal court, “lacking the political authoritativeness that the legislature can bring to the task,” must act “circumspectly, and in a manner ‘free from any taint of arbitrariness or discrimination.’ ” Connor v. Finch, supra, at 415, quoting from Roman v. Sincock, 377 U. S. 695, 710 (1964).

The foregoing principles, worked out in the course of reconciling the requirements of the Constitution with the goals of state political policy, are useful guidelines and serve to decide many cases. But, as is true in this case, their application to the facts presented is not always immediately obvious. Furthermore, the distinctive impact of § 5 of the Voting Rights Act of 1965, as amended, 89 Stat. 404, 42 U. S. C. § 1973c (1970 ed., Supp. V), upon the power of the States to reapportion themselves must be observed. Plans imposed by court order are not subject to the requirements of § 5, but under that provision, a State or political subdivision subject to the Act may not “enact or seek to administer” any “different” voting qualification or procedure with respect to voting without either obtaining a declaratory judgment from the United States District Court for the District of Columbia that the proposed change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” or submitting the change to the Attorney General and affording him an appropriate opportunity to object thereto. A new reapportionment plan enacted by a State, including one purportedly adopted in response to invalidation of the prior plan by a federal court, will not be considered “effective as law,” Connor v. Finch, 431 U. S., at 412; Connor v. Waller, 421 U. S. 656 (1975), until it has been submitted and has received clearance under § 5. Neither, in those circumstances, until clearance has been obtained, should a court address the constitutionality of the new measure. Connor v. Finch, supra; Connor v. Waller, supra. Pending such submission and clearance, if a State’s electoral processes are not to be completely frustrated, federal courts will at times necessarily be drawn further into the reapportionment process and required to devise and implement their own plans.

Ill

Texas was not subject to the Voting Rights Act when this case was pending in the District Court. Hence, insofar as federal law was concerned, when the District Court invalidated the provisions of the Dallas City Charter mandating at-large Council elections, the city was not only free but was expected to devise a substitute rather than to leave the matter to the District Court. This duty, the District Court found, was discharged when the city enacted the eight/three plan of electing Council members. Noting that only if “the legislature failed in [its reapportionment] task, would the responsibility fall to the federal courts” and declaring that the plan adopted by the Council was not one “hastily conceived merely for the purposes of this litigation,” 399 F. Supp., at 797, the District Court proceeded to declare the plan constitutional despite the use of at-large voting for three Council seats. Although there are some indications in the District Court’s opinion that it was striving to satisfy those rules governing federal courts when they devise their own reapportionment plans, it seems to us that on balance, the District Court, as the United States observes in its amicus brief, reviewed the apportionment plan proposed by the Council as a legislatively enacted plan.

The Court of Appeals was not in disagreement in this respect. It observed that “[t]he district court approved the City’s plan for relief, which was enacted as a city ordinance following the court’s decision that the prior system was unconstitutional.” 551 F. 2d, at 1045. It further noted that “the election plan [was] formally adopted by the City Council.” Id., at 1046.

Neither did the Court of Appeals disturb the ruling of the District Court that the ordinance was constitutional. It did, however, insist that the plan also satisfy the special preference for single-member districts applicable where district courts are themselves put to the task of devising reapportionment plans and reversed the judgment of the District Court because in its view the record did not disclose the presence of those special circumstances that would warrant departure from the rule. This was clearly error unless there was some convincing reason why the District Court was not entitled to consider the substitute plan under the principles applicable to legislatively adopted reapportionment plans. As we see it, no such reason has been presented.

It is suggested that the city was without power to enact the ordinance because the at-large system declared unconstitutional was established by the City Charter and because, under the Texas Constitution, Art. XI, § 5, and Texas statutory law, Tex. Rev. Civ. Stat. Ann., Art. 1170 (Vernon Supp. 1978), the Charter cannot be amended without a vote of the people. But the District Court was of a different view. Although the Council itself had no power to change the at-large system as long as the Charter provision remained intact, once the Charter provision was declared unconstitutional, and, in effect, null and void, the Council was free to exercise its legislative powers which it did by enacting the eight/three plan. 399 F. Supp., at 800; Tr. of Oral Arg. 6. When the City Council reapportioned itself by means of resolution and ordinance, it was not purporting to amend the City Charter but only to exercise its legislative powers as Dallas’ governing body. The Court of Appeals did not disagree with the District Court in this respect, and we are in no position to overturn the District Court’s acceptance of the city ordinance as a valid legislative response to the court’s declaration of unconstitutionality.

East Carroll Parish School Bd. v. Marshall does not support the conclusion of the Court of Appeals in this case that the plan presented by the city must be viewed as judicial rather than legislative. In that case the District Court instructed the East Carroll police jury and school boards to file reapportionment plans. They both submitted a multimember arrangement which the court adopted. We held that the District Court erred in approving a multimember plan because “when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances.” 424 U. S., at 639. In reaching this conclusion, however, we emphasized that the bodies which submitted the plans did not purport to reapportion themselves and, furthermore, could not even legally do so under federal law because state legislation providing them with such powers had been disapproved by the Attorney General of the United States under § 5 of the Voting Rights Act of 1965. 424 U. S., at 638 n. 6, 637 n. 2. Under these circumstances, it was concluded that the mere act of submitting a plan was not the equivalent of a legislative Act of reapportionment performed in accordance with the political processes of the community in question.

Even if one disagreed with that conclusion, this case is markedly different from East Carroll Parish School Bd. After the District Court found that the existing method of electing the City Council was constitutionally defective on January 17, 1975, it “gave the City of Dallas an opportunity to perform its duty to enact a constitutionally acceptable plan.” 399 F. Supp., at 792. The City Council, the legislative body governing Dallas, promptly took advantage of this opportunity and on January 24, 1975, passed a resolution which stated “that it is the intention of the majority of this City Council to pass an ordinance [enacting a plan of eight single-member districts with three individuals, including the Mayor, to be elected at-large].” App. 188. On February 8, 1975, the District Court announced in an oral opinion following a hearing held to consider the constitutionality of the city’s plan that it was accepting the city’s plan but retained jurisdiction. Two days later, on February 10, the City Council, as promised, enacted an ordinance incorporating the eight/three plan. Id., at 189. In a written opinion filed subsequently, the District Court specifically found "that [the city of Dallas] has met ![its constitutional] duty in enacting the eight/three plan of electing council members.” 399 F. Supp., at 792. Here, unlike the situation in East Carroll Parish School Bd., as the Court there viewed it, the body governing Dallas validly fnet its responsibility of replacing the apportionment provision invalidated by the District Court with one which could survive constitutional scrutiny. The Court of Appeals therefore erred in regarding the plan as court imposed and in subjecting it to a level of scrutiny more stringent than that required by the Constitution.

Finally, it is urged that the Court of Appeals be affirmed because Texas became subject to § 5 of the Voting Rights Act while the case was pending on appeal and because under § 5, as amended, Dallas could neither enact nor seek to administer any reapportionment plan different from that in effect on November 1, 1972, without securing the clearance called for by that section. It is urged that the city ordinance of February 1975, relied upon by the District Court and validly enacted prior to § 5’s becoming applicable to 'Texas, cannot be considered as effective law until it has secured the necessary approval. The same is said with respect to the Charter amendment approved by the people of Dallas in 1976. See n. 3, supra.

We think it inappropriate, however, to address the § 5 issue. Respondents may, of course, seek to sustain the judgment below on grounds not employed by the Court of Appeals; but there is a preliminary question as to whether the § 5 issue is open in this Court. Respondents did not cross-petition, and sustaining the § 5 submission, even if it would not expand the relief in respondents’ favor, would alter the nature of the judgment issued by the Court of Appeals. See United States v. New York Telephone Co., 434 U. S. 159, 166 n. 8 (1977). In any event, however, we are not obligated to address the issue here, particularly where the Court of Appeals did not deal with it -one way or another — apparently because it considered the plan tb.be a judicial product beyond the reach of the section. The impact of the Voting Rights Act on the city ordinance and on the Charter amendment approved by referendum will be open on remand, and we deem it appropriate for the Court of Appeals to deal with these questions.

The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings.

So ordered.

Mr. Justice Powell,

with whom The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join, concurring in part and concurring in the judgment.

I agree with Mr. Justice White’s conclusion that the reapportionment plan adopted by the Dallas City Council was a "legislative plan” for purposes of review by a federal court. In my view, however, his reasoning in reaching that conclusion casts doubt on Burns v. Richardson, 384 U. S. 73 (1966).

Mr. Justice White reads East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976), as establishing the principle that a proposed reapportionment plan cannot be considered a legislative plan if the political body suggesting it lacks legal power to reapportion itself. Ante, at 545. Because the City Council ordinarily would have had no power to reapportion itself — a Charter amendment being necessary to that end— Mr. Justice White is constrained to assume that the Council became imbued with such power after the District Court struck down the apportionment provisions of the City Charter. Aside from the fact that this aspect of Texas law was neither fully briefed nor argued, the assumption seems unnecessary.

In Burns v. Richardson, supra, the Hawaii Legislature was without power to reapportion itself, a constitutional amendment being required for that purpose. Nevertheless, this Court treated the plan that the legislature proposed to submit to the voters as a legislative plan. By parity of reasoning, the plan proposed by the Dallas City Council in this case must be considered legislative, even if the Council had no power to reapportion itself. The Council plan was then implemented by court order, 399 F. Supp. 782, 798 (ND Tex. 1975), just as the legislature’s plan in Bums ultimately was imposed pending the outcome of the constitutional amendment process, 384 U. S., at 98.

The essential point is that the Dallas City Council exercised a legislative judgment, reflecting the policy choices of the elected representatives of the people, rather than the remedial directive of a federal court. As we held in Burns, supra, at 85, “a State’s freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.” This rule of deference to local legislative judgments remains in force even if, as in Burns, our examination of state law suggests that the local body lacks authority to reapportion itself.

Thus, Mr. Justice White’s statement that East Carroll School Bd. stands for the proposition that a plan submitted by a political body without power to reapportion itself cannot be considered a legislative plan appears to be in direct conflict with Burns. Because the brief per curiam in East Carroll did not even cite Burns, I would read it as turning on its peculiar facts. In response to the litigation in East Carroll, the legislature enacted a statute enabling police juries and school boards to reapportion themselves by employing at-large elections. That enabling legislation was disapproved by the Attorney General of the United States under § 5 of the Voting Rights Act of 1965, as amended, 42 U. S. C. § 1973c (1970 ed., Supp. V), because of its impermissible impact on Negro voters. This determination meant that the specific plans proposed by the school board and police jury in that case would have had unlawful effects. Because their legislative judgment had been found tainted in that respect, it followed that the normal presumption of legitimacy afforded the balances reflected in legislative plans, see Burns, supra, at 84-85, could not be indulged. To the extent that East Carroll implies anything further about the principle established in Burns, the latter must be held to' control.

Having determined on the basis of Burns that the City Council plan was legislative, I agree with Mr. Justice White’s conclusion that the judgment of the Court of Appeals must be reversed. I also agree that there is no reason for this Court to explore difficult questions concerning § 5 of the Voting Rights Act in the absence of consideration by the courts below.

Opinion of

Mr. Justice Rehnquist,

with whom The Chief Justice, Mr. Justice Stewart, and Mr. Justice Powell join.

I write separately to emphasize that the Court today is not presented with the question of whether the District Court erred in concluding that the form of government of the city of Dallas unconstitutionally diluted the voting power of black citizens. While this Court has found that the use of multi-member districts in a state legislative apportionment plan may be invalid if “used invidiously to cancel out or minimize the voting strength of racial groups/’ White v. Regester, 412 U. S. 755, 765 (1973), we have never had occasion to consider whether an analogue of this highly amorphous theory may be applied to municipal governments. Since petitioners did not preserve this issue on appeal, we need not today consider whether relevant constitutional distinctions may be drawn in this area between a state legislature and a municipal government. I write only to point out that the possibility of such distinctions has not been foreclosed by today’s decision.

Mr. Justice Marshall,

with whom Mr. Justice Brennan and Mr. Justice Stevens join, dissenting.

I agree with the majority’s decision not to reach the Voting Rights Act question, since it was not presented to either of the courts below. I also agree with the analysis of our past decisions found in Part II of Mr. Justice White’s opinion. I cannot agree, however, that the actions of the Dallas City Council are distinguishable from those of the local governing body in East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976). I therefore conclude that the plan ordered by the District Court here must be evaluated in accordance with the federal common law of remedies applicable to judicially devised reapportionment plans.

I

In East Carroll Parish School Bd. v. Marshall, supra, suit against the parish (county) was initially brought by a white resident who claimed that population disparities among the wards of the parish unconstitutionally denied him an equal vote in elections for members of the school board and the police jury, the governing body of the parish. Following a finding of unconstitutionality, the District Court adopted a plan submitted by the police jury, which called for at-large elections of both bodies. Two years later (after the 1970 census), in response to the court’s direction, the at-large plan was resubmitted by the police jury. Respondent Marshall then intervened, arguing that the at-large elections would dilute the Negro vote in violation of the Fourteenth and Fifteenth Amendments. The District Court again accepted the police jury plan, but the Court of Appeals reversed, holding that multimember districts were unconstitutional.

Although we did not reach the constitutional ground relied on by the Court of Appeals, we sustained its judgment.. We concluded that the District Court had abused its equitable discretion in not requiring the division of the parish into single-member wards:

“We have frequently reaffirmed the rule that when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances.” 424 U. S., at 639.

It is plain from the foregoing that we treated the plan submitted by the local legislative body in East Carroll as a judicially devised plan, to which the federal common law of remedies developed in reapportionment cases was applicable. It is equally plain that we did not treat the police jury’s submission as a “legislatively enacted” plan, which would only have had to meet the strictures of the Constitution and would not necessarily have been subject to evaluation under the more stringent standards applicable to court-devised plans. See Connor v. Finch, 431 U. S. 407, 414-415 (1977). Indeed, in rejecting the argument of the United States (appearing as amicus curiae) that the East Carroll plan was subject to the preclearance procedure of § 5 of the Voting Rights Act of 1965, we expressly noted that the police jury “did not have the authority to reapportion itself,” and that the plan, though submitted by the police jury, was a “court-ordered pla[n] resulting from equitable jurisdiction over the adversary proceedings.” 424 U. S., at 638-639, n. 6.

There is no meaningful distinction between the facts here and the facts in East Carroll. Like the police jury in East Carroll, the City Council of Dallas did not act pursuant to any state enabling legislation governing the procedures for reapportioning itself when it first proposed the eight/three plan to the District Court in January 1975. Nor did it act pursuant to any state-derived authority when it “enacted” the plan following the District Court’s first approval of it in March 1975. Under the terms of its Charter, the Dallas City Council could reapportion itself only by a popular referendum. See Tex. Const., Art. XI, § 5; Tex. Rev. Civ. Stat. Ann., Art. 1170 (Yernon Supp. 1978). The Council unquestionably failed to comply with the existing state procedures for enacting a reapportionment plan; indeed, the District Court itself noted that, were the Dallas City Council not responding to a judicial finding of unconstitutionality, it would have been acting unlawfully in unilaterally reapportioning itself. 399 F. Supp. 782, 800 (ND Tex. 1975).

That this plan was not devised by the City Council in the usual course of its legislative responsibilities is further evidenced by the fact that the Council told a group of Mexican-American citizens, who wished to present for the Council’s deliberations an alternative, single-member district plan, that they were in the “wrong forum” and should go to federal court. App. 43-44. It seems clear that the eight/three plan was proposed less as a matter of legislative judgment than as a response by a party litigant to the court’s invitation to aid in devising a plan. Indeed, the District Court itself appeared at times to regard the eight/three plan as a court-devised plan in which at-large voting had to be justified by special and unique circumstances. See ante, at 543 (opinion of White, J.).

It is suggested that the City Council here, unlike the police jury in East Carroll, purported to reapportion itself when it first submitted the eight/three plan. See ante, at 545 (opinion of White, J.). But that simply is not the case. This plan was initially proposed not in the form of a formal, binding enactment but merely as an expression of the Council’s “intention.” App. 188. The Council did not even bother to go through the formality of enacting a supposedly binding ordinance until after the District Court, following a full hearing, indicated that it approved of the plan as a remedy for the constitutional violations; the procedures followed prior to the time when the District Court ordered implementation of the eight/three plan, moreover, were insufficient under state law validly to change the structure of the Council.

While our past decisions have held that a legislatively enacted reapportionment plan is the preferred response to a judicial finding of unconstitutional apportionment, I do not believe that these cases contemplated that a legislature could meet this responsibility — and thereby avoid the requirements applicable to court-devised plans — by making a submission not in accordance with valid state procedures governing legislative enactments. If the plan submitted in East Carroll was properly regarded as a judicially devised plan, then the plan before us today must also be so regarded, and I see no reason to depart from the clear implications of this unanimous decision of the Court rendered only two Terms ago. I therefore conclude that the Court of Appeals properly evaluated this plan under the standards of the federal common law, which has for years recognized that multimember districts and at-large voting are presumptively disfavored.

II

Even if this plan were properly to be viewed as a “legislatively enacted” plan, however, the majority’s apparent assumption that it represents a proper remedy would nonetheless be troubling. Where the very nature of the underlying violation is dilution of the voting power of a racial minority resulting from the effects of at-large voting in a particular political community, I believe that it is inappropriate either for the local legislative body or a court to respond with more of the same.

Although we have refrained from holding that multi-member districts are unconstitutional per se, the presumption in favor of single-member districts as a matter of federal remedial law is a strong one. See, e, g., Connor v. Johnson, 402 U. S. 690 (1971); Connor v. Williams, 404 U. S. 549, 551 (1972); Chapman v. Meier, 420 U. S. 1, 16-19 (1975). We have repeatedly explained this preference by virtue of the fact that multimember districts “tend to submerge electoral minorities and overrepresent electoral majorities.” Connor v. Finch, 431 U. S., at 415; accord, Whitcomb v. Chavis, 403 U. S. 124, 158-159 (1971). See also Chapman v. Meier, supra, at 16.

In the instant case, it is essentially undisputed that the use of a multimember district (the city of Dallas) for the at-large election of all City Council members had “submerged” an electoral minority, the Negro voters of Dallas. In this respect the case is unlike East Carroll, where the original electoral scheme was invalidated solely on the ground of mal-apportionment and where the “racial dilution” challenge was raised only in objection to the proposed remedy. Multi-member districts, which are disfavored as court-devised remedies because of their “tendency” or potential to create racial dilution, should a fortiori be disfavored when they are proposed to cure a proved use of a “multi-member . . . scheme ... to minimize or cancel out the voting strength of racial . . . elements of the voting population.” Fortson v. Dorsey, 379 U. S. 433, 439 (1965).

Based on respondents’ proof of a diluting effect on Negro voting strength in Dallas — and of the long history of de jure discrimination contributing to it — the District Court held the Dallas scheme to be unconstitutional. Although the Council did not challenge the finding that the at-large election of all its members was unconstitutional, the plan it submitted to the District Court replicated the offending feature of its original scheme by providing for the at-large election of three Council members. To put the burden on respondents to prove that the submission, insofar as it perpetuates at-large voting for Council members, is as unconstitutional as the original plan seems contrary to logic and common sense. I cannot agree that either the Constitution or the remedial principles of equity require such a result.

For both of these reasons, I believe that the Court of Appeals correctly held that the use of at-large voting for City Council members in the city of Dallas should not have been approved as part of the remedy in this case by the District Court. I therefore dissent.

       Several plaintiffs, including all of the Mexican-American plaintiffs, were dismissed from the case for failure to respond to interrogatories. Two Mexican-Americans subsequently attempted to intervene. The District Court denied their application but later permitted several Mexican-Americans to participate in the remedy hearing held after the at-large election system was declared unconstitutional.

       Petitioners did not appeal this ruling and do not question it here.

       On April 1, 1975, the Dallas City Council election was held under the eight/three plan. During the pendency of the appeal the electorate approved this plan in a referendum conducted in April 1976, thus incorporating it into the City Charter.

       The court stated that the city may provide for the election of the Mayor by general citywide election if it desired. Mr. Justice Powell stayed the Court of Appeals’ judgment pending disposition by this Court. 434 U. S. 1329 (1977).

       The numerous cases in which this Court has required the use of single-member districts in court-ordered reapportionment plans have all involved apportionment schemes which, unlike the one in this case, were held unconstitutional because they departed from the one-person, one-vote rule of Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny. We are fully persuaded, however, that the same considerations which have induced this Court to express a preference for single-member districts in court-ordered reapportionment plans designed to remedy violations of the one-person, one-vote rule compel a similar rule with regard to court-imposed reappor-tionments designed to cure the dilution of the voting strength of racial minorities resulting from unconstitutional racial discrimination. Indeed, the Court has justified the preference for single-member districts in judicially imposed reapportionments on the ground that multimember districts “tend to submerge electoral minorities and overrepresent electoral majorities . . . ,” which is the source of the very violation which the court is seeking to eliminate in racial dilution eases. Connor v. Finch, 431 U. S. 407, 415 (1977). See White v. Regester, 412 U. S. 755, 765-770 (1973).

       “A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act.” Connor v. Johnson, 402 U. S. 690, 691 (1971).

       In his oral announcement, the judge remarked: “I’m not saying it’s the best plan. It’s not even the plan that this Court would have drawn. But this Court’s not in the plan-drawing business. That’s the legislative duty.” Record 195.

       The record suggests no statutory, state constitutional, or judicial prohibition upon the authority of the City Council to enact a municipal election plan under circumstances such as this and respondents have been unable to cite any support for its contention that the City Council exceeded its authority. It must be noted that since there is no provision under Texas law for reapportionment of Home Rule cities such as Dallas by the state legislature, or other state agency, acceptance of respondents’ position would leave Dallas utterly powerless to reapportion itself in those instances where the time remaining before the next scheduled election is too brief to permit the approval of a new plan by referendum. We are unwilling to adopt such an interpretation of Texas and Dallas law in the absence of any indication whatsoever that it would be accepted by Texas courts.

       In light of our disposition, we do not consider petitioners’ claim that the Court of Appeals also erred in holding that the alleged effect of all single-member districts on the representation of Mexican-American voters and the desirability of permitting some citywide representation did not constitute special circumstances justifying departure from the preference for single-member districts in remedial reapportionments conducted by federal courts.

      I do not agree with my Brother Powell that Burns v. Richardson, 384 II. S. 73 (1966), stands for the proposition that any legislative submission whatsoever should be treated as a “legislative plan.” In Burns, the very mechanism by which changes in apportionment could be made under state law had been found by the District Court to be designed to freeze existing unconstitutional apportionments and had thus been held unconstitutional in its own right. 238 F. Supp. 468, 472 (Haw. 1965). Here, by contrast, there was a lawful mechanism available for modifying the apportionment under the Dallas City Charter: the drafting of a proposal by the Council and its submission to the voters of the city at a popular referendum. If this process could not be completed in time for the next election, then the District Court would be justified in devising a temporary, court-ordered plan. See ante, at 540 (opinion of White, J.). See also Connor v. Williams, 404 U. S. 549, 552, and n. 4 (1972).

       In White v. Regester, 412 U. S. 755, 765-770 (1973), this Court affirmed a District Court order directing that an unconstitutional multi-member district be reapportioned into single-member districts designated by the court. The District Court had found the multimember district to be unconstitutional because of its dilutive effect on Negro voting strength, and had ordered implementation of its remedy without awaiting a legislative response to its finding of unconstitutionality. See Graves v. Barnes, 343 F. Supp. 704 (WD Tex. 1972) (three-judge court).