Whitcomb v. Chavis Court Opinion; Ketchum v. Bryne Court Opinion; McMillan v. Escambia County Court Opinion; Nevett v. Sides Court Opinion;

    ,Ed2d

yed. I
cism of
port of
tg this
'ly end.

r in the
t forth
whit-

165,29
1858;

'.2, 152,
ct 260
as, 377
6, 543.

ment in-
rl argu-

363

EDGAR D. wHIrS'3i\{H b2j}"-,. of the state
of Indiana, Appellant,

v
PATRICK CHAVIS et al.

403 US L24, 29 L Ed 2d 363, 91 S Ct 1858

[No. 92]

Argued December 8, 1920. Decided June Z, 1gT1.

SUMMARY

In a suit in a 3-judge united states District court for the southern
District of Indiana, attacking Indiana's state legislative apportionment
insofar as it created a single district of Marion county for ihe at-large
election of eight state senators and 1b state assemblym"n, th" court, aftir
withholding judgment for 2 months to allow the state legislature to correct
the malapportionment according to the principles enumerated by the court,
(1) redistricted Marion county into single-member districts on the g"ourd
that the multimember Marion county district illegally minimized and
canceled out the voting power of the cognizable "rliri minority in the
Marion county ghetto, as evidenced by fev'er legislators' having resided
in the ghetto than the ghetto's proportion of the county popula[ion; and
(2) redistricted the entire state into single-member districts on the g"ornd
that the state was malapportioned by population-per-senator variations of
80,496 to 106,790 and population-per-assemblyman variations of 4\,44g to
53,003 (307 F Supp 1362).

on appeal, the united States supreme court reversed. wHIrE, J., an-
nounced the court's judgment, and in parts I-vI of his opinion, expressing
the view of five members of the court, held that evidence of the ghetto{
having fewer resident Iegislators than its proportion of the county popula-
!r, {i4 not prove invidious discrimination against ghetto residLnts. In
Part VII of his opinion, WHrrE, J., ioined Uy guncBi, Ch, J., Bucx andBucruuN, JJ., held that the District courl properly ordered statewide
reapportionment. Douclas, J., joined by BnrNN.lN ind M.lnsn,ur,, JJ.,
while dissenting from the court's judgment, were in accord vvith the ui"*,
expressed in Part VII of the opinion of Wslrn, J.

sTnwlnr, J., dissented from part vII of the court's opinion on the ground
that a state legislative apportionment scheme is constitutional if ii is ra_
tional in the light of the state's own characteristics and need.s, and not
such as to permit the systematic frustration of the majority,s will.

Briefs of Counsel, p 1016, infra.



364 U. S. SUPRE}IE COURT REPORTS 29LEd2d

HIBLAN, J., filed a separate opinion declaring that he would reverse
and remand with directions to dismiss the complaint on the ground that
the federal courts cannot restructure state electoral processes.

Doucl,.ls, J., joined by BnoNNeN and Mlnsxell,, JJ., dissented on the
grounds that multimember legislative districts are unconstitutional where
there are invidious effects, and that invidious effects had been proved in
this case. '

HEADNOTES

Classified to U. S. Supreme Court Digest, Annotated

Appeal and Error S 327 - appellate ance with the court's plan, and retain-
jurisdiction ing jurisdiction to pass on any future

1. The supreme court lacks juris- claims of unconstitutionality with re-
diction of and accordingly must dis- spect to any future legislative appor-
miss an appeal following a 3-judge tionments adopted by the state is not
District Court's opinion where, at the rendered moot by the holding of the
time the appeal was taken, no judg- 1970 elections and the adoption of new
ment had been entered and no injunc- apportionment legislation, not only be-
tion had been granted or denied. cause of the court's retention of juris-
Appeal and Error S f660 - mootness diction to pass on the legality of new

-2-. 
An appeal from a federal court apportionment legislation in view of

decree enjoining state officials from its decision, but also because state
conducting any elections under exist- court invalidation of the new legis-
ing apportionment statutes, ordering lation would require reexamination of
that 1970 elections be held in accord- the same issues'

TOTAL CLIENT-SERVICE LIBRARY@ REFERENCES

25 Arvr Jun 2d, Elections $ 25

9 Au Jun Pl & Pn Fonus (Rev ed), Elections, Forms 7, 8, 10

US L Eo DIGEsr, Constitutional Law S 33a; Legislature $ 6

ALR Dtcpsts, Elections $$ 103, 104

L Eo INonx ro ANNo, Constitutional Law; Legislature; One
Man-One Vote

ALR QutcK INDEX, Elections
FponRlt, Qutcx INDEX, Elections; One Man-One Vote Rule

ANNOTATION REFERENCES

To what governmental agencies, Inequalities in population of election
units, officers, or subdivisions of a districts or voting units as rendering
state, other than the state legislature, apportionment unconstitutional. L2

is the "one man-one vote" rule appli- L Ed 2d 1282.
cable. 18 L Ed 2d 163?. Constitutionality and construction

Race discrimination. 94 L Ed 1121, of statutes providing for proportional
96 L Ed 1291, 98 L Ed 882, 100 L Ed representation or other system of
488, 3 L Ed 2d 1556, 6 L Ed 2d 1302, preferential voting in public elections.
10 L Ed 2d 1105, 15 L Ed 2d 990, 21 110 ALR L62r,123 ALR 262.
L Ed 2d 916.

Citizensh
parti

3. Eacl
inalienab
participa
of his st:

Elections
of vr

4. The
mands t
equally e

of membr

Constitut
porti

5. APP'
give the
tives to t
ents un
value of
tricts.

Constitut
ment

6. The
quires th
of bicam
portioned
tion basir

Constitut
meml

7.4 r

trict is r
equal pr,

Courts g

8. The
electoral
able issur

Constitut
meml

9. Mull
systems r

where th
ticular c:
or cancel
racial or
ing popu
district ir
tial prop,
house of
where it
houses o1
lacks pro'
running I

subdistrir



IVHITCOMB
,103 us 121, 29 L Ed

Citizenship S 2 - lesislative bodies -participation
3. Each and every citizen has an

inalienable right to full and effective
participation in the political processes
of his state's legislative bodies.

Elections S 3 - legislature - equality
of votes

4. The Federal Constitution de-
mands that each citizen have an
equally effective voicd in the election
of members of his state legislature.

Constitutional Law S 334 - malap-
portionment

5. Apportionment schemes rvhich
give the same number of representa-
tives to unequal numbers of constitu-
ents unconstitutionally dilute the
value of the votes in the larger dis-
tricts.

Constitutional Law S 334 - apportion-
ment

6. The equal protection clause re-
quires that the seats in both houses
of bicameral state legislature be ap-
portioned substantially on a popula-
tion basis.

Constitutional Law S 334 - multi-
member districts

7. A multimember electoral dis-
trict is not per se illegal under the
equal protection clause.

Courts S 236.5 - 
justiciable issues

8. The validity of multimember
electoral district systems is a justici-
able issue.

Constitutional Law $ 334 - multi-
member districts

9. Multimember electoral district
systems may be subject to challenge
where the circumstances of the par-
ticular case may operate to minimize
or cancel out the voting strength of
racial or political elements of the vot-
ing popuiation, especially where the
district is large and elects a substan-
tial proportion of the seats in either
house of a bicameral legislature, or
where it is multimembered for both
houses of the legislature, or where it
lacks provision for at-large candidates
running from particular geographical
s ubdi stricts.

v CHAVIS
2d 363, 91 S Ct 1858
Evidence S 101 - burden of proof -invalidity of statute

10. The challenger carries the bur-
den of proving that multimember dis-
tricts unconstitutionally operate to
dilute or cancel the voting strength
of racial or political elements.

Evidence S 90.1.3 - invalidity of multi-
member districts

11. A mathematical anal;rsis of the
voting po$'er of residents of multi-
member districts, on the hypothesis
that the true test of voting porver
is the ability to cast tie-breaking
votes, but theoretical and omitting
any political or other factors which
might affect the residents' actual
voting power, such as party afhlia-
tion, race, previous voting character-
istics, or any other factors which
enter into the entire political vot-
ing situation. does not sufficiently
demonstrate the real-life impact of
multimember districts on individual
voting power to warrant holding such
districts to be constitutionally imper-
missible.

Constitutional Law S 334 - multi-
member districts

12. Even if the legislative delega-
tion from a multimember district
tends to bloc-voting, a multimember
district does not overrepresent its
voters, as compared with voters in
single-member districts, so as to be
constitutionally impermissible.

Civil Rights S2 constitutional
amendments

13. The Civil War Amendments of
the Constitution were designed to pro-
tect the civil rights of Negroes.

Evidence S904.3 - discrimination
14. Absent evidence and findings

Lhat ghetto residents had less oppor-
tunity than other residents of a mul,
member legislative district to
ticipate in the political process'
to elect legislators of their c)
vidious discriminaton agai'
not shou'n by the fact tb
has fewer legislators /

365



366

than its proportion of the district pop-
ulation.

Constitutional Law S 331 - multi-
member districts

15. That one interest group or an-
other concerned rvith the outcome of
elections in a multimem\pr legislative
district has found itself outvoted and
without legislative seats of its own
provides no basis for invoking consti-
tutional remedies where there is no
indication that this segment of the
population is being denied access to
the political s)'stem.

Constitutional Law S 334 - multi-
member districts

16. District-based elections de-
cided by plurality vote are not uncon-
stitutional in either single-member or
multimember legislative districts sim-
ply because the supporters of losing
candidates have no legislative seats
assigned to them.

CourtsST-powers t/

17. The remedial powers of an
equity court must be adequate to the
task, but they are not unlimited.

Legislature S6 - malapportionment

- remedy
18. A United States District Court

errs in disestablishing an entire coun-
tyrvide multimember legislative dis-
trict and creating single-member dis-
tricts therein in contravention of state
apportionment policy, manifested by a
state constitutional provision forbid-
ding the division of any county for
senatorial apportionment, and with-
out expressly putting aside on sup-
portable grounds the alternatives of
(1) creating single-member districts
in the county's ghetto and leaving the
district otherwise intact or (2) re-
quiring that some at-large candidates
each year reside in the ghetto.

Legislature S6 - malapportionment

- relief
19. A United States District Court

properly orders statewide legislative
redistricting where one district had
80,496 residents for one senator while
another district had 106,790 residents

U. S. SUPRE}IE COURT REPORTS 29LEd2d

for one senator. one district had 41,449
residents for one representative while
another district had 53,003 residents
for one representative, and the court
refrained from action until the state
legislature ignored the court's find-
ings and suggestion that it call a
special session for the purpose of re-
districting. IPer White, J., Burger,
Ch. J., Black, and Blackmun, JJ. Ac-
cord, Douglas, Brennan, and llarshall,
JJ. ]

Legislature S6 - malapportionment

- relief
20. In reapportioning a state's leg-

islative districts, a Llnited States Dis-
trict Court acts properly in dividing
some counties into several districts,
notlvithstanding a state constitutional
provision that no county shall ever be
divided for senatorial apportionment,
where none of the statervide redis-
tricting plans submitted for the
court's consideration follow the state
constitution in this respect. and rvhere
the court strives to preserve the in-
tegrity of county and totvnship lines
wherever possible, although it ulti-
mately concludes that the difficulty of
devising compact and contiguous dis-
tricts within a framework of mathe-
matical equality largely precludes
preservation of county lines. fPer
White, J., Burger, Ch. J., Black, and
Blackmun, JJ. Accord, Douglas, Bren-
nan, and Marshall, JJ.l

Courts S 775 - adherence to former
decision

21. A 1965 decision of the United
States District Court, upholding a

state's legislative apportionment un-
der the "substantial equality" test
of Reynolds v Sims (1964) 377 US
533, 12 L Ed 2d 506, 84 S Ct 1362,
does not render the legislative appor-
tionment beyond attack, on the grounds
that disparities among districts
thought to be permissible at the time
of the Reynolds Case have been shown
by intervening Supreme Court deci-
sions to be excessive. IPer White, J.,
Burger, Ch. J., Black, and Blackmun,
JJ. Accord, Douglas, Brennan, and
Marshall, JJ.l

lYilliar
James
Briefs

t{
llr. Justice

opinion of the
the validity
election distri
Indiana (Part
an opinion (Pr
Chief Justice,
Mr. Justice BI
propriety of
of the entire
announced tl
Court.

We have b
the validity t
tection Clausr
tricting and a
of Indiana for
elections. Th
ters on those 1
Marion Count
city of Indiane
district for el
and representr

Indiana has
assembly cons

l. As later ind
nouncement of tt
informed that tl
will soon be supe
ment legislation
Indiana Legislatu
ernor. That legis
member districtl
including llarion
stated below the
and, as will be e

ceeds as though
us remain undistr

2. The provisio
.{ets 1965 (2d S1

c. 4, S 3, and ap;
SS 34-102 and 3{-
lows:

"34-102. App,
I ioea.-Re presentr
from districts cr



IVHITCOIIB v CHAVIS 367
103 LiS 12{,:19 L Ed:d 363,91 S Ct 1858

APPEARANCES OF COUNSEL

\Yilliam F. Thompson argued the cause for appeilant.
James Manahan argued the cause for appellee.
Briefs of Counsel, p 1016, infra.

OPINION OF

t{03 us t27l
11r. Justice lVhite delivered the

opinion of the Court with respect to
the validity of the firulti-member
election district in Marion County,
Indiana (Parts I-VI), together with
an opinion (Part VII), in rvhich The
Chief Justice, lIr. Justice Black, and
Mr. Justice Blackmun joined, on the
propriety of ordering redistricting
of the entire State of Indiana, and
announced the judgment of the
Court.

We have befr;re us in this case
the validity uncler the Equal Pro-
tection Clause of the statutes dis-
tricting and apportioning the State
of Indiana for its general assembly
elections. The principal issue cen-
ters on those provisions constituting
Marion County, which includes the
city of Indianapolis, a multi-member
district for electing state senators
and representatives.

I
Indiana has a bicameral general

assembly consisting of a house of

THE COURT

representatives of 100 members and
a senate of 50 members. Eight of
the 31 senatorial districts and 25 of
the 39 house districts are multi-
member clistricts, that is, districts
that :rre represented by trvo or
more

ir03 us l28l
legislators elected at large by

the voters of the district.l Under
the statutes here challenged, Marion
County is a multi-member district
electing eight senators and 15 mem-
bers of the house.

On January 9, 1969, six residents
of Incliana, five of whom were resi-
dents of Marion County, filed a suit
described by them as "attacking the
constitutionality of two statutes of
the State of Indiana which provide
for multi-member districting at
large of General Assembly seats in
Marion County, Indiana . .",
Plaintiff.s3 Chavis, Ramsey, and Bry-
ant alleged that the two statutes
invidiously diluted the force and
effect of the vote of

I{03 US l29l
Negroes and

l- As later indicated, shortly before an-
nouncement of this opinion. the Court was
informed that the statutes at issue here
will soon be superseded by new apportion-
ment legislation recently adopted by the
Indiana Legislature and signedby theGov-
ernor. That legislation provides for single-
member districts throughout the State
including Marion County. For the reasons
stated below the controversy is not moot,
and, as will be evident, this opinion pro-
ceeds as though the state statutes beiore
us remain undisturbed by new legislation.

2. The provisions attacked, contained in
.{cts lg65 (2d Spec. Sess.), c. b, g 3, and
!.^ 1, S 3, and appearing in Ind .{nn Stat
IS 3{-102 and J4-10{ ( 1969) were as fol-
lows:

.. "3{-102. Apportionment of rcprescnta-
ttuee.-Representatives shall be electedfrom districts comprised of one tf] or

more counties and having one [1] or more
representatives, as follows: Twen-
ty-sixth District Ilarion County: fifteen
[15] representatives . ."

"34-10.1. Apportionment of senators.-
Senators shall be elected from districts,
comprised of one or more counties and
having one or more senators, as follows:

. Nineteenth District-Marion Coun-
ty: eight [8] senators, two [2] to be
elected in 1966."

The District Court denied plaintiffs'
motitrn to have the suit declared a class
action under Fed Rule Civ Proc 23 ( b) .

305 F Supp 1359, 1363 (SD Ind 1969).
Se,e n. 17, infra.

3. Plaintiffs in the trial court are ap-
pellees here and defendant Whitcomb is
the appellant. lVe shatl refer to the par-
ties in this opinion as they stood in the
trial court.



368 U. S. SUPREME COURT REPORTS 29LEd2d

poor persons living within certain
Marion County census tracts con-
stituting what was termed "the
ghetto area." Residents of the area
were alleged to have particular dem-
ographic characteristics rendering
them cognizable as a minority in-
terest group with distinctive inter-
ests in specific areas of the substan-
tive law. With shgle-member dis-
tricting, it was said, the ghetto area
would elect three members of the
house and one senator, rvhereas un-
der the present districting voters in
the area "have almost no political
force or control over legislators be-
cause the effect of their vote is can-
celled out by other contrary interest
groups" in Marion County. The
mechanism of political party organ-
ization and the influence of party
chairmen in nominating candidates
were additional factors alleged to
frustrate the exercise of power by
residents of the ghetto area.

Plaintiff Walker, a Negro resident
of Lake County, also a multi-member
district but a smaller one, alleged
an invidious discrimination against
Lake County Negroes because Mar-

ion County Negroes, although no
greater in number than Lake County
Negroes, had the opportunity to in-
tluence the election of more legisla-
tors than Lake County Negroes.{
The claim was that Marion County
rvas one-third larger in population
and thus had approximately one-
third more assembly seats than
Lake County, but that voter influ-
ence does not vary inversely with
populatiop and that permitting
Marion County voters to elect 23
assemblymen at large gave them a
clisproportionate advantage over
voters in Lake County.s The

tr03 us r30l
two re-

maining plaintiffs presented claims
not at issue here.8

A three-judge court convened and
tried the case on June 17 and 18,
1969. Both documentary evidence
and oral testimony were taken con-
cerning the composition and char-
acteristics of the alleged ghetto
area, the manner in which legisla-
tive candidates were chosen and
their residence and tenure, and the
performance of Marion County's
delegation in the Indiana general
assembly.T

The thr,
opinion cor
conclusions
for plaintif
305 F Sup
See also 3,

(pre-trial t
1362 (1969
ment plan :

In sum, it
County's
must be dit
of populatir
related to I

the compla
be redistri,
it first de

minority g

tifiable ghe

That area,

were unrepr(
and that Neg
er and oppo
assemblymen
power of po
ments was c

assembly elt
or the other I
minor excepl
numbers larl
so located as
or more gen(
County werr
without repr
assembly ele

The defer
County's pr<
that its dele
the various i:
ed at large r

as a whole
single-memb,
mented by p
ies. They
census figur
for redistric
posed the co
portionment
issue proper
pleadings ar

8. A ghett
area with a
and greater
housing thar
area and inl

I29 L Ed 2d

4. Walker also alleged that "in both
Lake and Marion County, Indiana there
are a sufficient number of negro [sic]
voters and inhabitants for a bloc vote by
the said inhabitants to change the result of
any election recently held."

5. The mathematical basis for the as-
sertion was set out in detail in the com-
plaint. See also n. 23, infra. It was also
alleged that "[b]oth Marion County
and Lake County are the sole
matter for consideration before two sep-
arate state legislative committees, one
directed to the affairs of each county.
The laws enacted which directly
effeet [sic] Marion or Lake County
typically apply to only one county or the
other." App. 15.

6. Plaintiff Marilyn Hotz, a Republican
and a resident of what she described as the
white suburban belt of Marion County
lying outside the city of Indianapolis, al-
leged that malapportionment of precincts

in party organization together with multi-
member districting invidiously diluted her
vote.

Plaintiff Rowland Allan (spelled "A1-
len" in the District Court's opinion), an
independent voter, alleged that multi-
member districting deprived him of any
chance to make meaningful judgments on
the merits of individual candidates because
he was confronted with a list of 23 can-
didates of each party.

7. In their final arguments and proposed
findings of fact and conclusions of law
plaintiffs urged that the Center Township
ghetto was largely inhabited by Negroes
who had distinctive interests and whose
bloc voting potential rvas canceled out by
opposing interest groups in the at-large
elections held in Marion County's multi-
member district, that the few Negro
legislators, including the three then serv-
ing the general assembly from Marion
County, were chosen by white voters and



WHITCONIB
103 US 121, 29 L Ed

tr03 US 1311

The three-j udge court filed its
opinion containing its findings and

conclusions on July 28, 1969, holding
for plaintiffs. Chavis v Whitcomb'
305 F SuPP 1364 (SD Ind 1969)'

See also '3Of f SuPP 1359 (1969)

(pre-trial orclers) and 307 F SUPP

rioz t 1969) (statewide reapportion-
ment plan and implementing order) '
In sum, it concluded thot Marion

County's multi-member district
must be disestablished and, because

of population disparities not directly
retatea to the phenomena alleged in
the complaint, the entire State must

be redistricted. More particularly'
it first determined that a racial

minority group inhabited an iden-

tifiable ghetto area in Indianapolis'E
That area, located in the northern

2d 363, 91 s ct 1858

half of Center Township and termed

the "Center Torvnship ghetto," com-
prised 28 contiguous census tracts
and parts of four others'e The area
contained a 1967 PoPulation

v CHAVIS

tJ03 us 1321

369

of 97,-

000 nonwhites, over 99% of whom
were Negro, and 35,000 whites' The

court proceeded to compare six of
these tracts, representative of the
area, with tract 211, a Predominant-
ly white, relatively wealthy subur-
ban census tract in Washington
Township contiguous to the north-
west corner of the court's ghetto

area and with tract 220, also in
Washington TownshiP, a contiguous
tract inhabited bY middle class

Negroes. Strong differences were

touna in terms of housing condi-

tions, income and educational levels,

were unrepresentative of ghetto Negroes'

"r,d 
thrt l.i"g"*. should be given-the pow-

.i-""a opp6rtunity to choose their own

".."-ifv,i'ti,r. 
It was also urged that tte

p"*"" ,it political as well as racial ele-

ments wai canceled out in that in every
assembly election since 1922, one party
or the oiher had *'on all the seats rvith two
minor exceptions; hence many voters, -in
numbers laige enough and geographically
so located as to command control over one

or more general assembly seats if Marion
County were subdistricted, were wholly
without representation whichever way an
assembly election turned out.

The defendants argued that Marion
County's problems were countywide and
that iis delegation could better represent
the various interests in the county if elect-
ed at large and responsible to the county
as a wholle rather than being elected in
single-member districts and thus frag-
ntunted by parochial interests and jealous-
ies. They- also urged that the 1960
census figures were an unreliable basis
for redistricting Marion County and op-
posed the court's suggestion that the ap-
portionment of the whole State was an
issue properly before the court on the
pleadings and the evidence.

8. A ghetto was defined as a residential
area with a higher density of population
and greater pioportion of substandard
housing than in ihe overall metropolitan
area and inhabited primarily by racial or

[29 L Ed 2dl-24

other minority groups with lower than
.""."g" socioeconomic status and whose

.u.-ia.-".. in the area is often the result
oi-, .oci"t, legal, or economic restriction
or custom. 305 F SuPP, at 1373'

9. The court's ghetto area was not con-

""r"n1--i"iit 
that-alleged in the complaint'

i; 
-i";l";;a five census tracts and parts

;i i;;; others not within the ghetto area

;i#; ;; ih" comPlaint, but it- omitted

cens=us tract 220 which the complatnt-nao
ii"i"a..i. 

-io5 F Supp, at 13?9-1381' That

a'i.irf.t. which was contiguous to both

tract 211 and the ghetto area' was rn-

;;itJ primarilY bY Negroes b9! Yas
i;;il;" [L u -iait" class district differing
.rl]a"iftttv in critical elements from the

."*rf"a.i ,it ihe ghetto' The court also

;;;' li unmistakably clear that its
shetto area "does not represent the entlie
ehettoized portion of Center 'I'ortr-nsnrp

;;a;;iy the portion which is predominant-

i.I-i"ii.tit"a bv Negroes and which was

"if.e"J 
in the-complaint"' 305 F Supp'

,i'1140-iser. Although census tract 563'

"-ti""i "randomly selected to typify tracts
. 

'.- . within ihe predominantly white
gt"tto po.iiot of Cenler Township"' id''-at
iii4; ;"t shown to have characteristics
rliu' .i.ifrt to the tracts in the court's
gi"lto 

"t"" 
except for the race of its

i;;;itr.t=, the size and configuration.of
i'fr.-*f,it" ghetto area were not revealed

by the findings'



370

rates of unemployment, juvenile
crime, and welfare assistance. The
contrasting characteristics between
the court's ghetto area and its in-
habitants on the one hand and tracts
211 and 220 on the other indicated
the ghetto's "compelling interests in
such legislative areas as urban re-
newal and rehabilitation, health
care, employment training and op-
portunities, welfare, and relief of
the poor, law enforcement, quality
of education, and anti-discrimina-
tion measures." 305 F Supp, at
1380. These interests were in addi-
tion to those the ghetto shared with
the rest of the county, such as met-
ropolitan transportation, flood con-
trol, sewage disposal, and education.

The court then turned to evidence
showing the residences of Marion
County's representatives aud sena-
tors

t403 us 1331
in each of the five general as-

semblies elected during the period
1960 through 1968.r0 Excluding
tract 220, the middle class Negro
district, Washington Township, the
relatively wealthy suburban area in
rvhich tract 21L was located, with
an average of. 1338% of Marion
County's population, was the resi-
dence of.47.52/o of its senators and
34.33% of its representatives. The
court's Center Township ghetto
area, with 17.8% of the population,
had 4.75% of the senators and
5.97% of the representatives. The
nonghetto area of Center Township,
with 23.32% of the population, had
done little better. Also, tract 220

U. S. SUPREME COURT REPORTS 29LEd2d

alone, the middle class Negro dis-
trict, had only 0.66% of the county's
population but had been the resi-
dence of more representatives than
had the ghetto area. The ghetto
area had been represented in the
senate only once-in 1964 by one
senator-and the house three times

-with one representative in 1962
and 1964 and by two representatives
in the 1968 general assembly. The
court found the "Negro Center
Torvnship Ghetto population" to be
sufficiently large to elect trvo repre-
sentatives and one senator if the
ghetto tracts "were specific single-
member legislative districts" in
Marion County. 305 F Supp, at
1385. From these data the court
found gross inequity of representa-
tion, as determined by residence of
legislators, betrveen Washington
Toivnship and tract 220 on the one
hand and Center Township and the
Center Township ghetto area on the
other.

The court also characterized Mar-
ion County's general assembly dele-
gation as tending to coalesce and
take common positions on proposed
legislation. This was "largely the
result of election at large from a
common constituency, and obviates
representation of a substantial,
though minority, interest group
within that common

t{03 Lrs l34l
constituency."

Ibid. Related findings were that,
as a rule, a candidate could not be
elected in Marion County unless his
party carried the election;rr county

Votes
144,336
144,235
L44,032
143,989
L43,972

lZe L Ed zdl

political orga
tial influence
election of as
influence tha
by single-me
well as upon I
ty's delegatio
that at-large
cult for the
make a ratior

The court's
the merits r
follows:

1. There (

County an i
ment, "the N
Center Torvns
cial interests i

l4

stantive law,
from interesl
the ghetto.lr

2. The vot
racial group I
Marion Count

Democrats
Jones .

DeWitt
Logan .

Roland
Walton . ,

Huber
Costello
Fruits
Lloyd
Ricketts

Though nearly
House, the high
votes. And, as
ceived 48.699? o

12. "The firgt
Fortson v Dorse3
that of an ideni
element within t
is met by the Net
Torvnship Ghetto
have interests in
such as housing
welfare prograrr
dependent childr
garnishment stal
compensation, am

10. See Appendix to opinion, post, 164, the importance of party alfiliation and the
29 L Ed 2d 389. "winner take all,, effect is shown by the

ll. A striking but typical example of 1964 llouse of Representatives etection.
Democrata
Neff
Bridwell
Murphy
Dean
Creedon

Votee Repttblicane
151,822 Cox
151,756 lladley
15L,7 46 Baker
15L,702 Burke
151,5?3 Borst



political organizations had substan-
ii"l inflrence on the selection and
election of ;rssembly candidates (an

influence that would be diminished
b]' single-member districting), as
rvell as upon the actions of the coun-
ty's delegation in the assemblY; and
that at-large elections made it diffi-
cult for the conscientious voter to
make a rational selectiotl.

The cottrt's conclusions of law on
the merits may be summarized as
follows:

l. There exists within Marion
County an identifiable racial ele-
ment, "the Negro residents of the
Center Township Ghetto," with spe-
cial interests in various areas of

t1o3 us 1351 
sub-

stantive law, diverging significantly
from interests of nonresidents of
the ghetto.u

2. The voting strength of this
racial group has been minimized bY
Marion County's multi-member sen-

WHITCOMB V CHAVIS
{03 us r2.1, 29 L Ed 2d 363, 91 S Ct 1858

37r

ate and house district because of the
strong control exercised by political
parties over the selection of candi-
dates, the inability of the Negro
voters to assure themselves the op-
portunity to vote for prosPective
legislators of their choice and the
rrtrsence of any particular legislators
who were accountable for their leg-
islative record to Negro voters.

3. Party control of nominations,
the inability of voters to know the
candidate and the responsibility of
legislators to their party and the
county at large make it difficult for
any legislator to diverge from the
majority of his delegation and to be
an effective representative of minor-
ity ghetto interests.

4. Although each legislator in
Nlarion County is arguably respon-
sible to all the voters, including
those in the ghetto, "[p]artial re-
sponsiveness of all legislators is
[not] equal [to] total re-
sponsiveness and the informed con-
cern of a few specific legislators."ls

ll
t:

ti
l!

Democrats
Jones
DeWitt
Logan
Roland
Walton . .

Huber
Costello
Fruits
Lloyd
Ricketts

Votes
151,481
151,449
151,360
151,343
r't,282
151,268
151,153
151,079
150,862
150,797

Elder
Zerfas
Allen

Votos
143,918
143,853
143,810
L43,744
143,688
143,553
L43,475
143,436
143,413
143,369

Repttblicans
Madinger
Clark
Bosma
Browrr
Durnil
Gallagher . .

Cope

Though nearly 300,000 Marion County voters cast nearly 4l million votes for the
House, the high and low candidates within each party varied by only about a thousand
votes. And, as these figures show, the Republicans lost every seat though they re-
ceived 48.69f? of the vote. Plaintiffs' Exhibit 10.

12. "The first requirement implicit in
Fortson v Dorsey and Burns v Richardson,
that of an identifiable racial or political
element within the multi-member district,
is met by the Negro residents of the Center
Township Ghetto. These Negro residents
have interests in areas of substantive law
such as housing regulations, sanitation,
welfare programs (aid to families with
dependent children, medical care, etc.),
garnishment statutes, and unemployment
compensation, among others, which diverge

significantly from the interests of non-
residents of the Ghetto." 305 F Supp, at
1386.

13. Ibid. The District Court implicitly,
if not expressly, rejected the testimony of
defendants' witnesses, including a profes-
sor of political science, to the effect that
Marion County's problems and all its
voters would be better served by a delega-
tion sitting and voting as a team and re-
sponsible to the district at large, than by
a delegation elected from single-member



372

t{03 us 1361

5. The apportionment statutes of

Indiana as theY relate to Marion
County oPerate to minimize and

.un."i out the voting strength of a
minority racial group' namelY Ne-
groes residing in the Center Town-
ihip ghetto, and to dePrive them of
ths equal Protection bf the laws'

6. As a legislative district, Marion
County is large as compared with
the total number of legislators, it is

not subclistricted to insure distribu-
tion of the legislators over the coun-

ty and comPrises a multi-member
clistrict for both the house and the
senate. (See Burns v Richardson,
384 US ?3,88, 16 L Ed 2d 376,388,
86 S Ct 1236 (1966).)

7. To redistrict Marion CountY
alone would leave impermissible var-
iations between Marion County dis-

tricts and other districts in the

State. Statewide redistricting was

required, and it could not await the

19?0 census figures estimated to be

available within a Year.

8. It maY not be Possible for the

Indiana general assembly to comply

with the state constitutional re-

quirement prohibiting crossing or

U. S. SUPREME COURT REPORTS 29LEd2d

dividing counties for senatorial ap-
portionmentt{ and still meet the re-
quirements of the Equal Protection
Clause adumbrated in recent cases'u

9. Plaintiff Walker's claim as a
Negro voter resident of Lake County
thal he was discriminated against
because Lake CountY Negroes could
vote for onlY 16 assemblYmen while
Marion CountY Negroes could vote
for 23 was deemed untenable. In
his second caPacitY, as a general
voter in Lake County, Walker "prob-
ably has received less effective rep-
reslntation" than Marion CountY
voters because "he votes for fewer
legislators and, therefore, has fewer
Iegislators to sPeak for him," and,

since
1103 US 1371

in theorY voting Power in
multi-member districts does not
vary inverselY to the number of
voters, Marion CountY voters had
greater opportunity to cast 1i":
breaking or "critical" votes' But
the couit declined to hold that the
latter ground had been Proved, ab-

sent more evidence concerning Lake
County.ro In this respect considera-
tion of lValker's claim was limited
to that to be given the uniform dis-
tricting principle in reapportioning
the Indiana general assemblY'r7

districts and split into groups represent-
ing special interests.'--ir.-.c,.ti.t" 4, S 6' of the Indiana con-
stitution Provides:--;;.q. i""ito.ial or Representative district'
where more than one county shall con-

"tftrt" . ditt.i.t, shall be composed .of
.ontigooua-aounties; and no county' for
s-iiiTii;it apportio'nment, shall eoer be

d.ioided." (EmPhasis added')

15. See Part VII, infra.
is. ':t" iis second status, we find that

nlaintifr Walker is a voter of Indiana who

i".ia". outside Marion County' Applying
ih" 

-r"ifot- district principle, discussed

infra in the remedy section, we find that he

orobablv has received less efrective rep'
resentaiion than Marion County voters'

it h"i, b""t shown that he votes for fewer
i"ri.t"to.. and, therefore, has fewer legis-
iriot" to speak for him. He also, theoret-

ically, casts fewer critical votes than
Itarion County voters, but we decline to
.o tofa in the absence of sufficient evidence

as to other factors such as bloc and party
uoting it Lake County. We hold that, in
the alsence of stronger evidence of dilu-
tion, his remedy is limited to the considera-
tion'which should be given to the uniform
district principle in any subse-quent -reap-
portionment of tte Indiana General As-
iembly." 305 F SuPP, at 1390.

17. The court found a failure of proof
on-blhalf of plaintiff Hotz, a resident of
ift" *ftit" suburban belt, and on behalf
of plaintiff Allan, an independent voter'
Two other plaintiffs were entitled to no re-
fi"f, pi.i"tif Chavis because he resided

"rt.ia-" 
the Center Township ghetto and

plaintiff Ramsey because he failed to show

[fr"t fr" was a resident of that area' OnlV
p1"i"tiff BrYant, in addition to the

I I ] Turnir
the court I

llarion Cour
though reco
was directed
the court tho
evidence ind
State requi:
Judgment w
spects, horve
until October
lation

t
ren

districting i

found to exis
doing the cc
"might wish
certain prinr
portionment
in these proc
First, the co
cation that
ghetto were
number of
should be drr
color blind, a

mandering
tenanced. S

was advised
theoretical i
voters in n
that is, their
to cast more
legislative e
the testimc
multi-membe
proportionatr
single-membr
thought that
plication he
member of tl
sponsible to
elected the
County voter

qualified recog
found to have
entitled to the

18. See part'
lll 19. The

lowing this opi
judgment had I

tion had been



t
i

t I I Turning to the proper remedy,
the court found redistricting of
Marion County essential. Also, al-
though recognizing the comPlaint
was directed only to Marion CountY,
the court thought it must act on the
evidence indicating that the entire
State required reapportionment.ls
Judgment rvas withheld in all re-
spects, horvever, to give the State
until October 1, 1969, to enact legis-
lation

u03 us r38l
remedying the improper

districting and malapportionment
found to exist by the court.le In so
doing the court thought the State
"might lvish to give consideration to
certain principles of legislative ap-
portionment brought out at the trial
in these proceedings." Id., at 1391.
First, the court eschewed any indi-
cation that Negroes living in the
ghetto were entitled to any certain
number of legislators-districts
should be drawn with an eye that is
color blind, and sophisticated gerry-
mandering would not be coun-
tenanced. Second, the legislature
was advised to keep in mind the
theoretical advantage inhering in
voters in multi-member districts,
that is, their theoretical opportunity
to cast more deciding votes in any
Iegislative election. Referring to
the testimony that bloc-voting,
multi-member delegations have dis-
proportionately more power than
single-member districts, the court
thought that "the testimony has ap-
plication here." Also, "as each
member of the bloc delegation is re-
sponsible to the voter majority who
elected the whole, each Marion
County voter has a greater voice in

IVHITCO}IB v CHAVIS
103 US 124, 29 L Ed 2d 363, 91 S Ct 1858

373

the legislature, having more legis-
lators to speak for him than does a
comparable voter" in a single-mem-
ber district. Single-member dis-
tricts, the eourt thought, would
equalize voting power among the dis-
tricts as well as avoiding diluting
political or racial groups located in
multi-member districts. The court
therefore recommended that the
general assembly give consideration
to the uniform district principle in
making its apportionment.m

t{03 us 1391

On October 15, the court judicially
noticed that the Indiana general as-
sembly had not been called to re-
district and reapportion the State.
Following further hearings and ex-
amination of various plans submit-
ted by the parties, the court drafted
and adopted a plan based on the
1960 census figures. With respect
to Marion County, the court followed
plaintiffs' suggested scheme, which
was said to protect "the legally cog-
nizable racial minority group against
dilution of its voting strength."
307 F Supp 1362, 1365 (SD Ind
1969). Single-member districts
were employed throughout the State,
county lines were crossed where
necessary, judicial notice was taken
of the location of the nonwhite pop-
ulation in establishing district lines
in metropolitan areas of the State
and the court's plan expressly aimed
at giving "recognition to the cog-
nizable racial minority group whose
grievance lead [sic] to this litiga-
tion." Id., at 1366.

qualified recognition given Walker, was
found to have standing to sue and to be
entitled to the relief prayed for.

18. See part VII, infra.
I I | 19. The Governor appealed here fol-

lowing this opinion. Since at that time no
judgment had been entered and no injunc-
tion had been granted or denied, we do

not have jurisdiction of that appeal and
it is therefore dismissed. Gunn v Univer-
sity Committee, 399 US 383, 26 L Ed 2d
684,90 S Ct 2013 (1970).

20. The trial court's discussion of this
subject may be found in 305 F Supp, at
1391-1392.



374 U. S. SUPREME COURT REPORTS 29LEd2d

tion abolishing multi-member dis-
tricts in Indiana, the issue of moot-
ness emerges. Neither PartY deems
the case mooted bY recent events.
Appellees, plaintiffs below, urge that
if the appeal is dismissed as moot
and the judgment of the District
Court is vacated, as is our Practice
in such cases, there lvould be no out-
standing judgment inr-alidating the
Marion County multi-member dis-
trict and that the new aPPortion-
ment legislation would be in conflict
rvith the state constitutional provi-
sion forbidding the division of
Marion County for the PurPose of
electing senators. If the new sena'
torial districts were invalidated in
the state courts in this resPect, it
is argued that the issue involved in
the present litigation would simply
reappear for decision.

t.r03 LIS l41l
The attorney

general for the State of Indiana, for
the appellant, taking a somewhat
different tack, urges that the issue
of the Marion CountY multi-member
district is not moot since the District
Court has retained jurisdiction to
pass on the legality of subsequent
apportionment statutes for the pur-
pose, among others, of determining
whether the alleged discrimination
against a cognizable minority group
has been remedied, an issue that
would not arise if the District Court
errecl in invalidating multi-member
districts in Indiana.

The court enjoined state officials
from conducting any elections under
the existing apportionment statutes
and ordered that the 1970 elections
be held in accordance with the Plan
prepared by the court. Jurisdiction
was retained to Pass uPon anY fu-
ture claims of unconstitutionality
with respect to anY future legis-
Iative apportionments adoPted bY

the State.2l
tr03 L:s lr0l

Appeal rvas taken following the
final judgment bY the three-judge
court, we noted Probable jurisdic-
tion, 397 US 984, 25 L Ed 2d 392' 90

s ct 1112, 1113, 1125 (1970), and
the State's motion for stay of judg-
ment was granted Pending our final
action on this case, 396 US 1055, 24

L Ed 2d 757,90 S ct 748 (1970)'
thus permitting the 1970 elections to
be held under the existing apportion-
ment statutes declared unconstitu-
tional by the District Court. On
June 1, 1971, we were advised bY the
parties that the Indiana Legislature
Lad passed, and the Governor had
signed, netv apportionment legisla-
tion soon to become effective for the
19?2 elections and that the new leg-
islation provides for single-member
house and s'bnate districts through-
out the State, including }farion
County.

II
With the 1970 elections long Past

and the appearance of new legisla-

t2l We agree
moot and that
before us must
not, however' Pi
of the Plan adol
Court, since tha
rvould have requ
of the 1970 cen

t3-61 The lin
v Sanders, 372
821, 83 S Ct 8(

nolds v Sims, 3

2d 506, 84 s
Kirkpatrick v I

22LF,d 2d 519'
and Wells v Ro'

22LEd 2d 535,
recognizes that
ernment is in
ment through I

representativet
each and ever
alienable right
particiPation I

esses of his S
ies." ReYnold
565, 12 L Ed 2

citizens find it
only as qualif
their rePresen
fective Partici
in state gover'
fore, that eacl
ly effective vt
members of
ture." Ibid.
schemes "whi
ber of rePre
numbers of <

at 563, 12L1
tutionally dil
votes in the

22. In Fortst
three-judge Dis
violation of the
that voters it
were allowed to
but that voters
were not. The

21. The court also Provided for the
possibility that the legislature would fail
to redistrict in time for the 1972 elections:

"The Indiana constitutional provision for
staggering the terms of senators, so that
one-half of the Senate terms expire every
two years, is entirely proper and valid
and would be mandatory in a legislatively
devised redistricting Plan.

"However, the plan adopted herein is
provisional in nature and probably will be

applicable for only the 1970 election and
the subsequent 2-year period. This is true
since the 19?0 census will have been com-
pleted in the interim, and the legislature

can very well redistrict itself prior to the
19?2 election. On the other hand, it is con-
ceivable that the legislature may fail to
redistrict before the 1972 elections. In
such event, all fifty senatorial seats shall
be up for election every two years until
such time as the legislature properly re-
districts itself. It will then properly be
the province of the legislature in redis-
tricting to determine which senatorial dis-
tricts shall elect senators to {-year terms
and which shall elect senators to 2-year
terms to reinstate the staggering of
terms." 307 F SuPP, at 136?.



V CHAVIS
2d 363. 91 s ct 1858

375WHITCO}IB
-103 us 124, 29 L Ed

t2l lVe agree that the ease is not

moot and that the central issues

;;f;;" us must be decided' lVe do

not, however. Pass uPon the details
,i ifr" plan adoPted bY the District
Court. iince that Plan in anY event

iuoufa have required revision in light
of the 1970 census flgures'

III ,

t3-61 The line of cases from GraY

v Sanders, 372 US 368, 9 L Ed 2d

821, 83 S Ct 801 (1963), and ReY-

noia. t Sims. 3?7 US 533, 12 L Ed
2d 506, 84 S Ct 1362 (1964), to

Kirkpairick v Preisler, 394 US 526'

iz r,'ea 2d 519,89 s ct 1225 (1969)'

ancl lVells v Rockefeller, 394 US 542'

22LEd,2d 535,89 S Ct 1234 (1969)'
recognizes that "representative gov-

ernment is in essence self-govern-
ment through the medium of elected

representatives of the PeoPle, and

each and everY citizen has an in-
alienable right to full and effective
participation in the political proc-

1..". o1 his State's legislative bod-

ies." Reynolds v Sims, 377 US, at
565,12 L Ed 2d at529. Since most
citizens fincl it possible to participate
only as qualified voters in electing
their representatives, " [fl ull and ef-
fective participation by all citizens
in state governrrlent requires, there-
fore. that each citizen have an equal-
ly effective voice in the election of
members of his state legisla-
ture." Ibid. Hence, aPPortionment
schemes "which give the same num-
ber of representatives to unequal
numbers of constituents," 377 US'
at 563, 12 L Ed 2d at 528, unconsti-
tutionally dilute the value of the
votes in the larger districts. And

hence the requirement that "the
seats in both houses of a bicameral
state legislature

t{03 us 1'r2l
must be appor-

tioned on a PoPulation basis'" 377

US, at 568, 12 L Ed 2d at 531'

t7-tol The question of the con-

stitutional validity of multi-member
districts has been Pressed in this
Court since the first of the modern
reapportionment cases. These ques-

tions have focused not on PoPula-
tion-based apportionment but on the
quality- of representation afforded by

the multi-member district as com-
pared rvith single-member districts'
in Lucas v Colorado General Assem-
bly, 377 US 713, 12 L Ed 2d 632,
si's ct 1459 (1964), decided with
Reynolcls v Sims, we noted certain
uniesirable features of the multi-
member district but expressly with-
held any intimation "that apportior-
ment schemes which Provide for the
atJarge election of a number of
legislators from a county, or any
political subdivision, are -constitu-
iionally defective." 377 US, at 731
n. 27, 12 L Ed 2d at 644. Subse-
quently, when the validitY of the
multi-member district, as such' was

squarely presented' we held that
such a clistrict is not per se illegal
under the Equal Protection Clause'
Fortson v DorseY, 3?9 US 433, 13

L Ed 2d 401, 85 S Ct 498 (1965);
Burns v Richardson, 384 US 73, 16

L Ed 2d 3?6, 86 S Ct 1286 (1966);
Kilgarlin v Hill, 386 US 120, l7 L
Ecl 2d 77r,87 S Ct 820 (1967)' See

also Burnette v Davis, 382 US 42'

15 L Ed 2d 35,86 s ct 181 (1965) ;

Harrison v Schaefer, 383 US 269,15
L Ed 2d ?50, 86 S Ct 929 (1966).!r

22. In Fortson, the Court reversed a
three-judge District Court rvhich found a
violation of the Equal Protection Clause in
that voters in single-member district,s
were allowed to "select their own s€nator"
but that voters in multi-member districts
were not. The statutory scheme in Fort-

son orovided for subdistricting within the

.nrniv, so that each subdistrict was the

.".ia#"e of exactly one senator' How-
ever- each senator rvas elected by the

."t"iv at large. The Court said, "Each
i."Utilttti.t'Jsenator must be a resident
of tfr"t [sub]district, but since his tenure



376 U. S. SUPREME COURT REPORTS 29LEd2d

That voters in multi-member
t{03 us 1431

tricts vote for and ,r" ,.0".."n1LT
by more legislators than voters in
single-member districts has so far
not demonstrated an invidious dis-
crimination against the latter. But
we have deemed the validity of
multi-member district systems jus-
ticiable, recognizing also that they
may be subject to challenge where
the circumstances of a particular
case may "operate to minimize or
cancel out the voting strength of
racial or political elements of the
voting population." Fortson, 379
US, at 439, 13 L Ed 2d at 405, and
Burns, 384 US, at 88, 16 L Ed 2d at
388. Such a tendency, we have said,
is enhanced when the district is
large and elects a substantial pro-
portion of the seats in either house
of a bicameral legislature, if it is
multi-member for both

t1o3 us u4l 
houses of

the legislature or if it lacks provision
for at-large candidates running from
particular geographical subdistricts,
as in Fortson. Burns, 384 US, at
88, 16 L Ed 2d at 388. But we have

insisted that the challenger carry
the burden of proving that multi-
member districts unconstitutionally
operate to dilute or cancel the voting
strength of racial or political ele-
ments. We have not yet sustained
such an attack.

IV
Plaintiffs level two quite distinct

challenges to the Marion County dis-
trict. The first charge is that any
multi-member district bestows on its
voters several unconstitutional ad-
vantages over voters in single-mem-
ber districts or smaller multi-mem-
ber districts. The other allegation
is that the Marion County district,
on the record of this case, illegally
minimizes and cancels out the voting
power of a cognizable racial minority
in Marion County. The District
Court sustained the latter claim and
considered the former sufficiently
persuasive to be a substantial factor
in prescribing uniform, single-mem-
ber districts as the basic scheme of
the court's own plan. See 307 F
Supp, at 1366.

Itll In asserting discrimination
against voters outside Marion

County, Plaintil
Fortson, Burns,
ceeded on the ar

dilution of votint
a r.oter who is
10 times the Po'
is cured by alloc
to the larger dis
one assigned to
PIaintiffs challer
at both the voter
They clemonstrr
that in theorY vt
vary inversely t
district and thal
tive seats in Pro
popLrlation gives
to the voter in
district since hr

to determine ele
t'103

does the voter i:

district. This ,

23. The mathem
theory is as follov
n voters, where e

between two alt,
there are 2n possil
For example, witl
voters, A, B, and
X and Y, there art

A
#t. x+2. x
#s. x
#4. X
#5. Y
#6. Y
#7. Y
#8. Y

The theory hYPc
test of voting pow
tie-breaking, or '

population of thre
any voter can cas
situations; in thr
the vote is not
change the outcot
exanrple, C can r

only in situation
number of com
voter can cast

2.-
n-1

0

depends upon the coutrty-wide electorate
he must be vigilant to serve the interests
of all the people in the county, and not
merely those of people in his home [sub]-
district; thus in fact he is the county's
and not merely the [sub]district's senator."
3?9 US, at 438, 13 L Ed 2d at 404. The
question of whether the scheme "oper-
ate[d] to minimize or cancel out the voting
strength of racial or political elements of
the voting population" was not presented.

In Burnette, we summarily affirmed a
three-judge District Court ruling, Mann v
Davis, 245 F Supp 241 (ED Va 1965),
which upheld a multi-member district
consisting of the city of Richmond,
Va., and suburban Henrico County over the
objections of both urban Negroes and sub-
urban whites. Since the urban Negroes
did not appeal here, the affirmance is of no
weight as to them, but as to the subur-
banites it represents an adherence to Fort-
son. Similarly, Ifarrison summarily af-
firmed a District Court reapportionment
plan, Schaefer v Thomson, 251 F Supp 450

(Wyo 1965), where multi-member districts
in Wyoming were held necessary to keep
county splitting at a minimum.

Burns vacated a three-judge court de-
cree which required single-member dis-
tricts except in extraordinary circum-
stances. The Court in Burns noted that
"the demonstration that a particular multi-
member scheme effects an invidious result
must appear from evidence in the record."
384 US, at 88, 16 L Ed 2d at 389.

In Kilgarlin, the Court affirmed, per
curiam, a district court ruling "insofar as
it held that appellants had not proved their
allegations that [the Texas House of Rep-
resentatives reapportionment plan] was a
racial or political gerrymander violating
the Fourteenth Amendment, that it uncon-
constitutionally deprived Negroes of their
franchise and that because of its utiliza-
tion of single-member, multi-member and
floterial districts it was an unconstitutional
'crazy quilt.'" 386 US, at 121, 17 L Ed 2d
at 774.



\YHITCO}IB
{03 us 12{, :9 L Ed

Countl-. piaintiffs recognize that
Fortson, Burns. and Kilgarlin Pro-
ceeded rtn the assttmption that the
dilution rrf voting power suffered by
a voter rvho is Placed in a district
1() times the population of another
is curetl by' allocating 10 legislators
to the larger district instead of the
one r-.signed to the smaller ciistrict'
Plaintifs challenge thig assumption
at both the voter and legislator level'
They clemonstrate mathematically
that in theory voting power does not
vary inverselY with the size of the
clislrict rrncl that to increase iegisla-
tive seats in proportion to increased
population gives undue voting power
to the voter in the multi-member
clistrict since he has more chances
to determine election outcomes than

t t03 L*S lr5l
cloes the voter in the single-member
district. This consequence obtains

v (IHAVIS
2d 363, 91 s ct 1858

377

rvhoily asicle from the quality or ef-
fectiveness of representation later
furnishecl by the successful candi-
clates. The District Cor-rrt did not
qr.rrrrrel with plaintiffs' mathematics,
nor do rve. But like the District
Court lve note that the position re-
mains a theoretical oner3 and, as

plaintiffs' rvitness conceded, know-
ingll'

t103 us 1n6I

avoicls and cloes "not take into
ilcconnt any political or other factors
rvhich might affect the actual voting
power of the residents, rvhich might
include party al'filiation, race, previ-
ous voting characteristics or any
other factors rvhich go into the en-
tire political voting situation."m
The real-life impact of multi-mem-
ber districts on individual voting
power has not been sufficientlY dem-

li
lr
li

23. The mathematical backbone of this
theory is as follows: In a population.of
n vo{e.s, rvhere each voter has a choice
between two alternatives (candidates),
there are 2n possible voting combinations.
For example, with a population of three
voters, -4,, B, and C, and two candidates,
X and Y, there are eight combinations:

ABC*r. x x x
*oyyY
#3.XYX
#4. x Y Y
i+5.Yxx
#6.YXY
,t7.YYX
#8.YYY

The theory hypothesizes that the true
test of voting power is the ability to cast a
tie-bleaking, or "critical" vote. In the
population of three voters as shown above,
any voter can cast a critical vote in four
situations; in the other four situations,
the vote is not critical since it cannot
change the outcome of the election. For
exanrple, C can cast a tie-breaking vote
only in situations 3, 1, 5, and 6. The
number of combinations in rvhich a
voter can cast a tie-breaking vote is

(n-1) !
o-

n-1 n-1
! 

-r2

the number of voters. Dividing this re-
sult (critical votes) by !n (possible com-
binations), one arrives at that fraction
of possible combinations in which a voter
can cast a critical vote. This is the the-
ory's measure of voting power. In District
K with three voters, the fraction is j(, or
iO4. In District L with nine voters, the
fraction is 140/512, or 28'/c. Conven-
tional wisdom would give District K one
representative and District L three. But
under the theory, a voter in District L is
not 1 as powerful as the voter in District
K, but more than half as powerful. Dis-
trict L deserves only two representatives,
and by giving it three the State causes
voters therein to be overrepresented. For
a fuller explanation of this theory, see

Banzhaf, Multi-llember Electoral Districts

-Do They Violate the "One Man, One
Vote" Principle, ?5 Yale LJ 1309 (1966).

2.1. Tr. 39. Plaintiffs' brief in this Court
recognizes the issue: "The obvious ques-
tion which the foregoing presentation
gives rise to is that of whether the fact
[h:rt a voter in a large multi-nrember dis-
trict has a greater mathematical chance
to cast a crucial vote has any practical
significance." Brief of ^{ppellees (Plain-
tiff s ) 11.



378 U. S. SUPRE}IE

onstrated, at least on this record, to
warrant departure from prior cases.

The District Court was more im-
pressed with the other branch of the
claim that multi-member districts in-
herently discriminate against other
districts. This was ilie assertion
that whatever the individual voting
power of Marion County voters in
choosing legislators may be, they
nevertheless have more effectivL
representation in the Indiana gen_qral assembly for two 

"uu.6nr.First, each voter is represented bv
more legislators and [herefore, in
theory at least, has more chances
to influence critical legislative votes.
Second, since multi-mlmber delega-
tions are elected at large and repie_
s_ent the voters of the entire district,
they tend to vote as a bloc, *frl.ii
is tantamount to the district'having
one representative with several
votes.85 The District Court did not
squarely

t103 US r47l
sustain this position,E butit appears to have found it sufficient-

ly persuasive to have suggested uni-
form districting to ttre t-niiana Les_islature and to have eliminaiJd
multi-member districts in the 

"ou"i,own plan redistricting the State.
See 307 F Supp, at 1g6g_1g88.

tl2l We are not ready, however,to agree that multi-member ctis_
tricts, wherever they exist, over-
represent their voters as compared
with voters in single-membei dis_
tricts, even if the multi-member del_
egation tends to bloc voting. The
theory that plural representation it_self unduly enhances a district,s
power and the influence of its voters

COURT REPORTS 29 LEdzd
remains to be demonstrated in prac_
tice and in the day-to-day op""utio,
of the legislature. Neither ine nna_
ings of the trial court nor the record
before us sustains it, even *fr"""
bloc voting is posited.

. In fashioning relief, the three_
jyac" court appeared to embrace tL
idea that each member of a bloc-
voting delegation has more influence
than legislators from a single_mem_
ber district. But its findinis oif".i
fail to deal with the actuallnfluence
of Marion County's delegation in the
Indiana. Legislature. Nor did plain_
tiffs' evidence make such a showing.
That bloc voting tended to occur Is
sustained by the record, and clefend_
ants' own witness thought it was
advantageous for Marion County,s
delegation to stick together. Iiut
nothing demonstrates that senators
lnd representatives from Marion
County counted for more in the leg-
islature than members from singlE_
member districts or from ..uIl""
multi-member districts. Nor is
there anything in the court,s find_
ings indlcating that what misht bL
true of Marion County is also trueof other multi-member districts in
lndiana or is true of

t403 us 1481

multi-member
distr_icts generally. Moreover, Mar-
ion County would have no less ad-
vantage, if advantage there is, if it
elected from individual districts and
the elected representatives demon_
strated the same bloc-voting tend-
enc.y, which may also develop among
legislators representins single_mem-_ber districts widely scattered
throughout the State.iz Of .ou"r" t,

it is advantag
more than one
nothing before t

that any legisla
ing the State o

County in par
come out difft
County been s
delegation elect
ber districts.

Rather than
acceptable disr
out-state voters
County voters, 1

down Marion (
ber district be
scheme worked
a specific segrn
voters as com
The court idenl
city as a ghett
nantly inhabitr
with distinctivr
terests and t
unconstitutiona
because the pro
with residences
from 1960 to 19
ghetto's propor
tion, less than t
islators electec
Township, a ler

and less than th
have elected h

t{0t

sisted of singlt
We find major
approach.

tl3l Pi61, ;1

here that the
ments were des
civil rights of I
courts have be

portionment, t7
Legislation dealin
problems may be :

urban delegations
encounter insuperr

^25. 9,f. Banzhaf, Weighted
Doesn't Work: A Mathemitical
19 Rutgers L Rev g1? (1965).

. 2-q. I! is apparent that the District Court
declined to rule as a matter of law that
a multi-member district was per se iUeeai
as giving an invidious advantage to -riti_member district voters over voters in
single-member districts or smaller multi_

member districts. See 308 F Supp, at
1391-1392.

- 27. The so-called urban-rural division
has been much talked about. Ania;;"i.ti;
bloc .voting by_ the two camps may occurbut it_iras perhaps been overemphasized.
See White & Thomas, U.Uan .na nurat
ttepresentation and State Legislative .{p-

Voting
Analysis,



IVHITCO]IB v CHAVIS
103 us 12-1. 29 L Ed ld 3{i3, 91 S Ct 1858

it is :rdvantageotls to start with
more than one vote for a bill. But
nothing before tts shorvs or suggests
that any legislative skirmish affect-
ing the State of Indiana or Marion
Count-'* in particular would have
come out differentlY had Marion
Count-r- been subdistricted and its
delegation elected from singig-mem-
ber districts.

Rather than squarelY fincling un-
acceptable discrimination against
out-state voters in favor of llarion
County voters, the trial court strttck
dorvn ]Iarion County's multi-mem-
ber district because it found the
scheme worked invidiously trgainst
a specific segment of the cottnty"s
voters as compared rvith others.
The court identified an area of the
city as a ghetto, found it predomi-
nantly inhabited by poor Negroes
with distinctive substantive-law in-
terests and thought this group
unconstitutionally underrepresented
because the proportion of legislators
with residences in the ghetto elected
from 1960 to 1968 was less than the
ghetto's proportion of the popula-
tion, less than the proportion of leg-
islators elected from Washington
Township, a less populous district,
and less than the ghetto would likely
have elected had the

t103 us r49l
county con-

sisted of single-rnember districts.2s
We find major deficiencies in this
approach.

lt3l First, it needs no emphasis
here that the Civil War Amend-
ments were designed to protect the
civil rights of Negroes and that the
courts have been vigilant in scru-

tinizing schemes allegedly conceived
or operated as purposeful devices to
further racial discrimination. There
has been no hesitation in striking
down those contrivances that can
fairly be said to infringe on Four-
teenth Amendment rights. Sims v
Baggett, 247 F SupP 96 (MD Ala
1965) ; Smith v Paris, 257 F SUPP

901 (MD Ala 1966), aff'd, 386 Fzd
979 (CA5 1967) ; and see Gomillion
v Lightfoot, 364 US 339, 5 L Ed 2d
110, 81 S Ct 125 (1960). See also
Allen v State Board of Elections, B93

us 5.14, 22 L Ed 2d 1, 89 S Ct 817
(1969). But there is no suggestion
here that Marion CountY's multi-
member district. or similar districts
throughout the State, were conceived
or operated as purposeful devices to
further racial or economic discrim-
ination. As plaintiffs concede,
"there was no basis for asserting
that the legislative districts in
Indiana were designed to dilute the
vote of minorities." Brief of AP-
pellees (plaintiffs) 28-29. Accord-
ingly, the circumstances here lie out-
side the reach of decisions such as

Sims v Baggett, supra.

It4l Nor does the fact that the
nLlmber of ghetto residents who
r.l'ere legislators was not in propor-
tion to ghetto population satisfactor-
ily prove invidious discrimination
absent evidence and findings that
ghetto residents had less opportu-
nity than did other Marion County
resiclents to participate in the po-
litical processes and to elect legis-
lators of their choice. We have dis-
covered nothing in the record or in
the court's findings indicating that
poor Negroes were not allowed to
register or vote, to choose the Po-
litical party they desired to support,

portionment, 17 W Pol Q 724 (1964).
Legislation deaiing with uniquely urban
problems may be routinely approved when
urban delegations are in agteement but
encounter insuperable difficulties when the

delegations are split internally. See
Kovach, Some Lessons of Reapportion-
ment, 3? Reporter 26, 31 (Sept 21, 196?).

28. See .{ppendix to opinion, post, 164,

29 L Ed 2d 389.



380 U. S. SUPREME

to participate in its affairs or to be
equally represented on those occa-
sions when legislative candidates
were chosen. Nor did

t{og us 
'uo'rn" evidence

purport to show or the court find
that inhabitants of the ghetto were
regularly excluded fror4 the slates
of both major parties, thus denying
them the chance of occupying leC-
islative seats.se It appears reason-

COURT REPORTS 29LEd2d

ably clear that the Republican party
won four of the five elections from
1960 to 1968, that Center Township
ghetto voted heavily Democratic and
that ghetto votes were critical to
Democratic Party success. Al-
though we cannot be sure of the
facts since the court ignored the
question, it seems unlikely that the
Democratic Party could afford to
overlook the ghetto in slating its
candidates.3o Clearly, in 1g64-the

I

i
i

29. It does not appear that the Nlarion
County multi-member district ahvays op-
erated to exclude Negroes or the poor
from the legislature. In the five general
assemblies from 1960-1g68, the county,s
Center Township ghetto had one senaio"
and four representatives. The remainder
of the township, which includes a white
ghetto, elected one senator and eight rep-
resentatives. Census tract ZZ0, inhabited
predominantly by Negroes but having dif-
ferent economic and social characteristics
according to the trial court, elected one
senator and five representatives. Ibid.
Plaintifrs' evidence indicated that Marion
County as a whole elected two Negro
senators and seven representatives in
those years. Plaintiffs, Exhibit 10.

30. Plaintiffs' Exhibit 10 purported to
list the names and race of both parties'
general assembly candidates from lg20
through 1968. For the 1960-1968 period
which concerned the District Court, the
exhibit purported to show that the Dem-
ocratic Party slated one Negro represent-
ative in 1960; one in 1962; one senator
and two representatives in 1g64; three rep-
resentatives in 1966; and one senator and
two representatives in 1968. The Repub-
lican Party slated one Negro senator in
1960; two representatives in 1966; and
three representatives in 1g68. The racial
designations on the exhibit, however, were
excluded as hearsay.

The Brief of Appellees (plaintiffs),
at 23 n. 7 indicates that in the 1920
elections: "[O]ne of the major polit-
ical parties in Marion County held
district 'mini-slating conventions, for
purposes of determining its legislative
candidates. All of the slated candidates
were subsequently nominated in the pri-
mary. Black candidates filed in the slating
conventions in six of the fifteen Marion
County 'districts' including the five that
contain parts of the ghetto area. Only
two black candidates rvere slated and

nominated including one in the district
that contains only a very small part of
the ghetto area where the black candidate
overwhelmingly defeated the white candi-
date in a head-on race notwithstanding
a very substantial white voting majority-.
In a district that was almoit 

"nti."i,ghetto a white candidate won almost al'lof the vote in a head-on race against a
black candidate who campaigned primarilv
on the basis of skin color. All five of the
candidates in the ,ghetto districts,, how_
ever, avowed a substantial commitment
to the substantive interests of black people
and the poor.',

The record shows that plaintiff Chavis
was slated by the Democratic party and
elected to the state senate in 1964.- E;_hibit 10. Also, plaintiffs Ramsey and
Bryant were both slated by tfre same partv
as candidates for the House of Represent-
atives in 1968 but were defeatea in. itregeneral election. Ibid.; see also Tr 181(Ramsey), Tr 133 (Bryant).

One of plaintifr's witnesses, an attorney
and political figure in the Republican
Party, testified as follows:

"Q. In your experience, Mrs. Allen,
aren't tickets put together by party organ-
ization to appeal [to] the various inteiest
groups throughout Marion County?

"A. Yes.
"Q. Among these interest groups are

economic groups, racial groups and others?
"A'. Yes.

"Q. I show you exhibit 58 that is in
evidence, showing the location of the
elected Republican representatives' homes
at the time they filed in the party primary,
does it to you somehow reflect an interest
in making an appeal to each conceivable
faction in the family, in the county area,
each geographical interest?

"A. Yes, it does, if I can explain.
"Q. Yes, you may.
"A. Back in 1966, as I stated, we had

1

r I llc .,1r,, , , ,r. 
.,,

Wt,rl .tl:4 
2.tttlle !.a,rtn,/,t

lrrtut t,, ,t
w,,ll ;,; ,,,-
xt:tfllrl I rt.r ,,

l.yr 'l',,.t, , ,

Liver. 1t,.,,
Wit..t ,,!llr ,

Itv pl,Lt,.t , '
rlic;rl.i,rrr r, ..,
r::tnrtirl;rf.., ..
in til.l,..r ,, ,.,.
llnrlinyq ,,,.
foit$(rrl;rllie 

t
I)emtx,r;,1 , ,,
alf a:V,.tt tt r, I

W()ltl(l ltt tt. ,

plrtinLr .,1.,,,r
f itct is, !,,,,,
flve r.k.r.t,,.,
cllIlH, ,rv lr;, ;.
the ghr,t r,,
Wity!{ y.l,r lr.
thorrgh r, l,'.',
rrlcr:lr.rl ,,r,r , 

t

L,,il;il,/"lli',,, , ,

l(cprrlrll, ,lr i. .rr,ttl 
'rl r,,,,,rr ,.

iii"n 1",,1 ll . :: :

*Iii1\|',1 j:',,;i',','

,'i:,x'll,'i,,ll;;: i'
illl,'ii"lli,,,, 

i, :, l
,i;:''lil::i:, 1,,, ,,

,illlf;:;,;,;,u'';; 
"',::1,1,:ii ,lli, 

l: ,

Ililil,,;11',,,,', ,

. "Q. .\rr,l rt,.rrt. llul, I lru \ r,
,'ff;,,"llill,. 

,li



WHITCOI{B v CHAVIS
103 us L21,29 L Ed 2d 363, 9t S Ct 1858

one election that the 1968 two representatives
t103 US 1511 area.3s

Democrats
won-the party slated and elected
one senator and one representative
from Center TownshiP ghetto as
well as one senator and four rePre-
sentatives from other

I,r03 US r52l
parts of Cen-

ter Township and two rePresenta-
tives from census tract 220, which
was within the ghetto area described
by plaintiff.3r Nor is there anY in-
dication that the party failed to slate
candidates satisfactory to the ghetto
in other years. Absent evidence or
findings we are not sure, but it seems
reasonable to infer that had the
Democrats won all of the elections
or even most of them, the ghetto
would have had no iustifiable com-
plaints about representation. The
fact is, however, that four of the
five elections were won by Republi-
cans, which was not the party of
the ghetto and which would not al-
ways slate ghetto candidates-al-
though in 1962 it nominated and
elected one representative and in

381

from that

t{03 us r53l
If this is the proper view of

this case, the failure of the ghetto
to have legislative seats in propor-
tion to its population emerges more
as a function of losing elections than
of built-in bias against poor Ne-
groes. The voting power of ghetto
residents may have been "cancelled
out" as the District Court held, but
this seems a mere euphemism for
political defeat at the polls.

On the record before us plaintiffs'
position comes to this: that al-
though they have equal opportunity
to participate in and influence the
selection of candidates and legisla-
tors, and although the ghetto votes
predominantly Democratic and that
party slates candidates satisfactory
to the ghetto, invidious discrimina-
tion nevertheless results when the
ghetto, along with all other Demo-
crats, suffers the disaster of losing
too many elections. But tYPical
American legislative elections are
district-oriented, head-on races be-
tween candidates of two or more
parties. As our system has it, one
candidate wins, the others lose. Ar-

a real primary fight and at the time we
selected our candidates in the primary
Republican Action Committee was not real,
real strong in some geographical areas,
and we felt that necessary to come up
with a 15 man slate, many of the people
who lived in Center Township including
myself did not feel ready to run for pub-
lic office and therefore there was a hiatus
in Center Township residents. However,
many of the Washington Township resi-
dents, I believe at least two Washington
Township residents had a number of
family and historical ties in this Center
Township Area, even though they did not
live there and to the best of the Com-
mittee's ability they tried to achieve racial,
geographical, economical and social diver-
sity on the ticket. I can't say they were
entirely successful, but they made a real
good attempt and this is a result of their
attempts.

"Q. And the real hard driving effort
to put the Action Conrmittees through did
take place by the residents of Center
Township; did it not?

"A. It was an over-all drive. Center
Township, having the population it has,
could not be ignored." Tr 145-148.

Plaintiffs' lawyer was at the time of
the trial the Marion County Democratic
chairman, Tr 256; plaintiff Chavis was
a ward chairman and a longtime precinct
committeeman, Tr 77.

31. See Appendix to Opinion, post 164,
29 L Ed 2d 389.

32. See ibid. In addition, the Repub-
licans nominated and elected one genator
(1960), and three representatives (1960,
1966, 1968) from census tract 220, and
four representatives (three in 1962, one
in 1966) from the nonghetto area of Cen-
ter Township. tbid.

Although plaintiffs asserted it, there
was no finding by the District Court that
Republican legislators residing in the
ghetto were not representative of the area
or had failed properly to represent ghetto
interests in the general assembly.



382 U. S. SUPREME

guably the losing candidates' suP-
porters are without representation
since the men they voted for have
been defeated; arguablY theY have
been denied equal protection of the
larvs since they have no legislative
voice of their own. This is true of
both single-member oad multi-mem-
ber districts. But we have hot Yet
deemed it a denial of equal Protec-
tion to deny legislative seats to los-
ing candidates, even in those so-
called "safe" districts where the
same party wins year after Year.

tl51 Plainly, the District Court
saw nothing unlawful about the im-
pact of typical single-member dis-
trict elections. The court's own plan
created districts giving both Repub-
licans and Democrats several Pre-
dictably safe general assembly seats,
with political, racial or economic mi-
norities in those districts being "un-
represented" year after year. But
similar consequences flowing from
Marion County multi-member dis-
trict elections were viewed differ-
ently. Conceding that all Marion
County voters could fairly be said to
be represented by the entire delega-
tion,

t103 us r54l
just as is each voter in a single-

member district by the winning can-
didate, the District Court thought
the ghetto voters' claim to the partial
allegiance of eight senators and 15
representatives was not equivalent
to the undivided allegiance of one
senator and two representatives;

COURT REPORTS 29LEd2d

nor was the ghetto voters'chance of
influencing the election of an entire
slate as significant as the guarantee
of one ghetto senator and two ghetto
representatives.33 As the trial court
saw it, ghetto voters could not be
adequately and equally represented
unless some of Marion County's gen-
eral assembly seats were reserved
for ghetto residents serving the in-
terests of the ghetto majority. But
are poor Negroes of the ghetto any
more underrepresented than poor
ghetto whites who also voted Demo-
cratic and lost, or any more discrim-
inated against than other interest
groups or voters in Marion County
with allegiance to the Democratic
Party, or, conversely, any less rep-
resented than Republican areas or
voters in years of Republican de-
feat ? We think not. The mere fact
that one interest group or another
concerned with the outcome of
Marion County elections has found
itself

t403 us r55l
outvoted and without

legislative seats of its own provides
no basis for invoking constitutional
remedies where, as here, there is no
indication that this segment of the
population is being denied access to
the political system.

There is another gap in the trial
court's reasoning. As noted by the
court, the interest of ghetto resi-
dents in certain issues did not meas-
urably differ from that of other vot-
ers. Presumably in these respects

40

Marion CountY's ass

satisfactorilY rePres
ghetto. As to other
resiclents had uniqt
necessarilY shared I

commuttitY and on
ghetto residents $

underrePresented a

legislative voice to f
policy views'

Part of the diff
conclusion is that tl
to suPPort it. Pl:
purported to show r

ghetto's distinctiv
fenclants claimed qt

We see nothing ir
the District Court
ring poor Perforn
CountY's delegatiol
Center TownshiP g

show what the t
were in Particular
tions and nothing
the outcome woul
different if the 23

been chosen from s

tricts. Moreover
bloc voting bY th
trary to the wist
majoritY, it woul'
the Fourteenth
been violated unle
discriminatorY fot
its delegation b
based on PartY t

forms and so to s

34. InterestinglY t

Rockefeller, 3?6 US
84 S Ct 603 (1964)
single-member distri
allegedly drawn on
signed to limit Negr
own candidates in
We rejected the ch
proof, but noted in
of .these voters
a more even dist
Sroups among the !
tricts, but others, I
thie case, would al

33. The comparative merits of the two
approaches to metropolitan representation
has been nruch mooted and is still in con-
tention. See the authorities cited in n
38, infra, particularly the piece by Kovach
and the series of studies by Collins, Dauer,
David, Lacy, & Mauer. And, of course,
witnesses in the trial court differed on
this very issue. E.g., Tr.209-2L4,223-229,
235-238, 256-258. David & Eisenberg in
their study, infra, n. 38, concluded that
the case for rigid insistence on single-
member districting has not been proved.
They would prefer a system of small mul-

ti-member districts in metropolitan areas
to either the larger multi-member district
or the single-member district, thereby min-
imizing the acknowledged shortcomings
of each. IIore generally, still in suspense
is definitive judgment about the long-range
impact of voting systems and malappor-
tionment on legislative output. Sokolow,
After Reapportionment: Numbers or
Policies, t9 W Pol Q Supp 21 (1966); T.
Dye, Politics, Economics, and the Public
260-277 (1966); D. Lockard, The Politics
of State and Local Government 290-293
(2d ed.1969).



WHITCOIIB
{03 us r:4. :9 L Ed

V CHAVIS
2d 368, 

-sr s ct tgsg
383

llarion Count-"-'s assemblymen lvere

.aii.tactorlly representative of the

nfr"tt". As to other matters' ghetto

r..l,f""t. had unique interests not

""."..rtifv 
shared bY others in the

."nr*rity trnd on these i-rsues the

rt "tto 
residents were invidiously

inderrepresented absent their otvn

iegislative voice to further their own

policy vie'*'s.

Part of the difficultf with- this

.".ir.i"" is that the findings failed

io--.,rppott it. Plaintiffs' evidence

"i,tooii"a 
to show <lisregard for the

il;ii;'.- clistinctive interests: de-

i.nanntt claimed quite the contrary'

iv;-."; nothing in the findings of

the District Court indicating recur-

.in* ooo. Performance bY Marion

Coul"tv'. delegation with respect to

C""t"t TownshiP ghetto' nothing to

.t o* *t rt the ghetto's interests

*ere in particular legislative situa-

tior. *ni nothing to indicate that

the outcome would have been any

Aifur"r,t if the 23 assemblYmen'had

U"""-Jo.., from single-member dis-

tricts. Moreover, even assumlng

bloc voting bY the delegation con-

trarY to the wishes of the ghetto

-u:o.itv, it rvould not follow that
tne fourteenth Amendment had

be"., .riotated unless it is invidiously
discriminatory for a county to elect

its delegation bY majoritY v-ote

based on PartY or candidate Plat-
forms and so to some extent Prede-

termine legislative votes on Par-

ii.ut". issues' Such tendencies are

int,".".tt in government by elected

."o."."nt"til'es ; and surely elections

in'.ingt.-*ember districts visit pre-

ciselylhe strme consequences -91 lhu
.rppttt"t. of losing candidates
,uho." views are rejected at the
polls.

t r03 US
v

1561

The District Court's holding' al-

though on the facts of this case

hr"i'.d- to guaranteeing one racial
gtorp-."p.Jsentation, is not e-asi.ly

E"ri"in"a. It is exPressive of the

-o." g"r"tal ProPosition that any
."^'t t with clistinctive interests
;;;;i be represented in legislative-rr^ir* 

it it is numerous enough to

"omtnuna 
at least one seat and reP-

resents a majority living in an area

sulficiently compact to constitute a

single-member district's This ap-

".oa.it 
would make it difficult to

reject claims of Democrats, RePub-

ii"r"., or members of anY Political
o"""nir"tion in Marion CountY who

iiri in what would be safe districts
in a single-member district system

but who in one Year or another' or
year after Year' are submerged in

a one-sided multi-member district
vote.35 There are also union ori-

ented workers, the universitY com-

munity, religious or ethnic groups

o..rpying identifiable areas of our

t ii"tog"n"ou. cities and urban

;;;;;. - indeed, it would be difficult

34. Interestinglv enough, l"-Ylgh-t-l
il'k"i;r;;;-si6: us sz, rt L Ed 2d 

.512-'
sa s ci ode (rgsl), challenge *?l t9 .a
;i.;";.;;r' district pla-n -with 

districts
alle"gedly drawn on racial lines and de-

;is;JL limit N"gto"s to voting for their
o6"-.."aia.tes in safe Negro districts'
We rejected the challenge for. failure ot

proof,'but noted in passing thll ':sol:
of these voters would Prefer
; ;;;; "r"n 

ai.t"lu'tiot' of minoritY
g"""o"it""trg the four congressional dis-

iricti, but others, like the intervenors rn
this 

-lase, 
would argue strenuously that

the kind of districts for which appellants

"""t.ra"a 
*o"fa U undesirable and' be-

.ao"" bas"a on race or place gf.gtisi'll
would themselves be unconstrtutronal'
a'Cus, at 5?-58, 11 L Ed 2d at 516'"'ir. pi"i"tiffs' 'final arguments in .,th1
District Court asserted nolitical as well as

':;ili;t'd ;;onomic distrimination in the

;;;i";;-"i-the Marion countv district'
* ii"iirr! "political minoritv"' whether

ii"ou6ii.t"" oi Democrats, is "always shlt
out^" when the opposing party wrns' 1r

254. See n 11, suPra'



384 U. S. SUPRE1VIE

for a great many, if not most, multi-
member districts to survive analysis
under the District Court's view un-
less combined with some voting ar-
rangement such as proportional rep-
resentation or cumulative voting
aimed

t403 us 1571

at providing representation
for minority parties or interdsts.s
At the very least, affirmance of the

COURT REPORTS 29LEd2d

District Court would spawn endless
litigation concerning the multi-mem-
ber district systems now widely em-
ployed in this country.3T

t7, t6l We are not insensitive to
the objections long voiced to multi-
member district plans.s Although
not as prevalent as they were in our
early history, they have been

t'lo3 us 1581 
with

103 U!

us since colonial timel
much in evidence both
after the adoPtion of tht
Amendment.3o Criticis
in their winner-take-

1403 US 1591

their tendencY to subn
ities and to overrePres
ning partY as compar
party's statewide electt

a general Preference fo;

reflecting communitY
closely as Possible anc

ment with Political Par
tions as devices to
differences between c<

terests. The chance c

significantlY influencir
fights and issue-orien
has seemed to some in
tection to minorities, Pr

or economic; rather, I

is said, should also be

legislative forum wher
is finally fashioned.

39. In colonial daYs,
tricts were the rule, singk
tion," and "[f]or nearlY
half after the Declaration
the American states ele
greater part of their law
ple constituencies." Kla
at 1112, 1113. Although
single-member districts
multiple districts are st
dence. See n 37, suPra.
& Eisenb€rg, suPra, n. i

supra, n. 38, at 504,

In 1842, Congress bY
single-member districts
eleclions. Act of June 2l
491. The substance of tl
continued in Rev Stat
portionment legislation
until 1929. In 1941, Cr

law that required that
redistricted in a manne:
after decennial reaPPo
House, rePresentatives
from the districts Pres'
of the State, and that "
elected from the State I

continue to be so elect
if reapportionment of

[29 L Ed 2dl-25

36. For discussions of voting systems
deeigned to achieve minority representa-
tion, see Dixon, infra, n 38, at 516-527;
Black, The Theory of Elections in Single-
member Constituencies, 15 Can J of Eco-
nomics and Pol Sci 158 (1949); Silva, Rela-
tion of Representation and the Party Sys-
tem to the Number of Seats Apportioned
to a Legislative District, 17 W. Pol Q.
752,744 et seq. (1964); S. Bedford, The
Faces of Justice (1961); E. Lakeman & J.
Lambert, Voting in Democracies (1959);
Blair, Cumulative Voting: An Effective
Electoral Device in Illinois Politics,4S Ill
Studies in the Social Sciences (1960).

37. As of November 1970, 46% of the
upper houses and,62Vo of the lower houses
in the States contained some multi-member
districts. National Municipal League, Ap-
portionment in the Nineteen Sixties (Rev
Nov 1970). In 1955, it was reported that
the figures were 337c and 75c/c, respective-
ly. Klain, A New Look at the Constituen-
cies: The Need for a Recount and a Reap-
praisal, 49 Am Pol Sci Rev 1105 (1955).
Though the overall effect of the reappor-
tionment cases on this phenomenon is
necessarily somewhat speculative, there is
no doubt that some States switched to
multi-member districts as a result of those
decisions. Prior to the decisions, for ex-
ample, Vermont's lower house was com-
posed entirely of single-member districts.
Id., at 1109. This resulted in the colorful
situation of one representative for a town
of 33,156 and another for a town of 38 in
1962. National Municipal League, Appor-
tionment in the Nineteen Sixties, pt. I(b).
Reapportioned and redistricted in light of
Reynolds, Vermont's lower house now has
36 multi-member and 36 single-member
districts. Buckley v Hoff, 243 F Supp
873 (Vt 1966). Reapportionment has also
been credited with abolishing Maryland's
tradition of single-member districts in its
senate. Burdette, Maryland Reapportion-
ment, in Apportionment in the Nineteen
Sixties, supra.

38. The relative merits of multi-member
and single-member plans have been much

debated and the general preference for
single-member districts has not g:one un-
challenged. For representative treatment
of the subject see:
R. Dixon, Democratic Representation: Re-
apportionment in Law and Politics 461-
163, 470-172,476-,190, 503-507 (1968); p.
David & R. Eisenberg, State Legislative
Redistricting: Major Issues in the Wake
of Judicial Decision (1962); Barnett,
Unitary-Multiple Election Districts, 39
Am Pol Sci Rev 65 (1945); Silv3, Q66-
pared Values of the Single- and the Multi-
member [,egislative District, 17 W Pol Q
504 (1964); Ilamilton, Legislative Con-
stituencies: Single-member Districts,
Multi-member Districts, and Floterial Dis-
tricts, 20 W Pol Q 321 (1967) (includes a
discussion of districting in Indiana); Silva,
Relation of Representation and the Party
System to the Number of Seats Appor-
tioned to a Legislative District, 1? W Pol
q 742 (196a); Lindquist, Socioeconomic
Status and Political Participation, 1? W
Pol Q 608 (196a); Klain, A New Look
at the Constituencies: The Need for a
Recount and a Reappraisal, 49 Am Pol Sci
Rev 1105 (1955); Kovach, Some f,essons
of Reapportionment, 37 Reporter 26 (Sept
21,-L967); and M. Collins, M. Dauer, P.
David, A. Lacy, & G. Mauer, Evolving
Issues and Patterns of State Legislative
Redistricting in Large Metropolitan Areas
( 1e66).

Interesting material with respect to the
relative merits of single- and multi-mem-
ber districts may be found in the congres-
sional debates sumounding the passage in
1842 of the statute requiring representa-
tives to be elected in single-member dis-
tricts. See n 39, infra. Though the racial
considerations present here were, not sur-
prisingly, absent in these pre-Civil War
Amendments debates, the concern voiced
by congressmen over the submergence of
minorities, bloc voting, and party control
shows, at least, that the plaintiffs'appre-
hensions are not entirely new ones. See,
e.9., ConSi Globe, 27th Cong, 2d Sess, 445-
448, 152453, 463-464.



WHITCOIIB v CHAViS 385
{03 us 12{, 29 L Ed 2d 1163, 91 S Ct 1858

us since colonial times and were however, experience and insight
much in evidence both before and have not )'et demonstrated
after the adoption of the Fourteenth t103 US 1601

Amendment.3e Criticism is rooted that
in their winner-take-

Id03 us 1591

all aspects,
their tendency to submerge minor-
ities and to overrepresent the rvin-
ning party as compuired ivith the
party's statervide electoral position,
a general preference for legislatures
reflecting community interests as
closely as possible and disenchant-
ment with political parties and elec-
tions as devices to settle policy
differences between contending in-
terests. The chance of winning or
significantly influencing intraparty
fights and issue-oriented elections
has seemed to some inadequate pro-
tection to minorities, political, racial,
or economic; rather, their voice, it
is said, should also be heard in the
legislative forum where public policy
is finally fashioned. In our view,

multi-member districts are inher-
ently' invidious and violative of the
Fourteenth Amendment. Surely the
findings of the District Court do not
demonstrate it. lloreover, if the
problems of multi-member districts
are unbearable or even unconstitu-
tional it is not at all clear that the
remedy is a single-member district
s1'stem with it.s lines carefully
rirarvn to ensure representation to
sizable racial, ethnic, economic, or
religious groups and with its own
capacity for overepresenting and un-
derrepresenting parties and inter-
ests and even for permitting a minor-
ity of the voters to control the
Iegislature and government of a
State. The short of it is that we are
unprepared to hold that district-
based elections decided by plurality
vote are unconstitutional in either

39. In colonial days, "[m]ultiple dis-
tricts were the rule, single ones the excep-
tion," and "[f]or nearly a century and a
half after the Declaration of Independence
the American states elected by far the
greater part of their lawmakers in multi-
ple constituencies." Klain, supra, n. Bg,
at 1112, 1113. Although a trend toward
single-member districts began long ago,
multiple districts are still much in evi-
dence. See n 3?, supra. See also David
& Eisenberg, supra, n. 38, at 20; Dixon,
supra, n. 38, at 504.

In 1842, Congress by statute required
single-member districts for congressional
elections. Act of June 25, L842, g 2, 5 Stat
491. The substance of the restriction was
continued in Rev Stat S 23 and in ap-
portionment legislation in this century
until 1929, In 1941, Congress enacted a
law that required that until a State is
redistricted in a manner provided by law
after decennial reapportionment of the
House, representatives vr'ere to tre elected
from the districts prescribed by the law
of the State, and that "if any of them are
elected from the State at large they shall
continue to be so elected," provided that
if reapportionment of the House follow-

[29 L Ed 2dl-25

ing a census shows that a State is entitled
to an increase in the number of repre-
sentatives, the additional representatives
shall be elected at large until the State
is redistricted, and if there is a decrease in
the number of representatives and the
number of districts in the State exceeds
the number of representatives newly ap-
portioned, all representatives shall be
elected at large. Act of Nov. 1b, 1g41,
55 Stat 762, amending S 22(c) of the Act
of June 18, 1929, 46 Stat 27, Z IJSC
S 2a(c). In 1967, Congress reinstated the
single-member district requirement,,,ex-
cept that a State which is entitled to more
than one Representative and which has in
all previous elections elected its Repre-
sentatives at Large may elect its Repre-
sentatives at Large to the Ninety-first
Congress." 81 Stat 581, 2 USC g 2c (1964
ed., Supp V). llawaii was the only State
to take advantage of this exception. It
has districted for the g2d Congress.
[Iawaii Rev. Stat. g 12-32.5 (Supp 1969).

Congress has not purported to exercise
Fourteenth Amendment powers to reg-
ulate or prohibit multi-member districts in
state elections.



386 U. S. SUPREME COURT REPORTS 29LEd2d
single- or murti-member districts county for possibre intradistrict dis_simply because the supporters of crimination.Iosing candidates have no legisla_tive seats assigned to them.- is ttz, I8r rhe remecri*l porvers ofpresently advised we hold that the an equity court must ue'"aequ"ieDistrict court misconceivea irr" to lhe task, uit 

-it 

"y ,." not un_Equal Protection cla_use in apprying Iimited. Here the 
'District 

i";;;it to invalidate the.Marion Cd;6 erred in *o n"oujiy t"u.f,ing ,siJemulti-member district " state apportionment poticy liiilr"ut
, solid constitutional or equitable

VI grounds for doing so.

1 which we hel
legislaturesar in
US 440, 17 L E
(1967). Even
showing of mi
court refrained
to allow the In
call a special ser
of redistricting
ture ignored thr
suggestion, it v
the court to or
tricting, as dist:
from the time I
us 533, t2 L
1362 (1964), anr
were decided.o
Committee for
v Tawes, 377 A
2d 595,606, g4 I

[2r] Po" .",
ant's argument
plan was beyonr
District Court h
at that time thr
stantial equalit5
Stout v Bottor

t403

(SD Ind 1965).
argue that the .

acceptable unde:

{1. See also Kirl
US 526, 22 L Ed
(1969), and Wellg
542,22 L Ed 2d 53
in which the Court
5.977c and 13.096%
permissible for cc
ing.

l2oi 42. In redir
District Court divir
several districts, r
this as an unwarr
diana Const, Art I
county, for Senatori
ever be divided.,, f
"[t]he error
violation" of the c
that the eourt drew
tng meaningfully c,
of the constitution.
(Defendant).19. Br
to us to be true.

Even if the District Court was
correct in finding unconstitutional
discrimination against poor inhabi-
tants of the ghetto, it did not ex_plain 

-why it was constitutionally
compelled to disestablish the entirl
county district and to intrude upon
state policy any more than necessary
to. ensure representation of gfretto
interests. The court entered"judg_
ment without expressly priting
aside on supportable grbuna, ttE
alternative of creating singte_me.r
ber districts in the gtretto ina i"rr_
ing-the district otherwise intact,ls
well as the possibility that the Four-
teenth Amendment could be satisfied
by a simple requirement that some
of the at-large candidates 

"r.f, 
y"u"

must reside in the ghetto. Cf. Fort-
son v Dorsey, supra.

We are likewise at a loss to under-
stand how on the court,s o*" n"a_
ings of fact and conclusions 

"f f"*it
t403 US 1611

was justified in eliminating every
multi-member district in the Statlof Indiana. It did not forttrrighiiv
sustain the theory that multi_I.,"*_
ber. districts always overrepresent
Enelr voters to the invidious detri_
ment of single-member residents.
Nor did it examine any multi_mem-ber district aside from Marion

VII
tl9.2ol At the same time, how_

ever, we reject defendant,s sug_
gestion that the court was *.orig
in ordering state-wide reapportion"_ment. After determining that
Marion County required 

"erppor_tionment, the court concluded 
- 
[hat"it becomes clear beyond question

that the evidence adhuced'in thls
case and the additional apportion_
ment requirements set forth by the
Supreme Court call for a reaisirict-
irg of the entire state as to both
houses of the General AssemUly.;i
P05 { Supp, at 1891. This evidence,
based on 1960 census figures, .tro*edthat Senate district iO, *itt oru
senator- for 80,496, was overrepre-
serted by 11.68% while districi b,with one senator for 106,290, *r.
underrepresented by 14.5d,%,'for a
total variance of 2g.20% and a ratio
between the largest and smallest dis-
tricts of 1.827 to 1. The house fig-
ures were similar. The variation
ranged from one representative for
41,449 in district Bg to one for
53,003 in district 85, for , ,r"irn."
of 24.78% and a ratio of t.Zlg io i.n
These

1403 US 162l
variations were in excess of,

or very nearly equal to, the variation
ot 25.657 and the ratio of 1.80 to

-^19._T!: court was also impressed by the1967 Indiana Board of tt.rrti-Vii"i #tt.-
variance of 87.80%. It did not base itsorder-on these interim ngu"".,- fro*""e".
See 30? F Supp 1362, tB66:

tics population estimates *hi.h 
"h;;';senate variance of 86.gg% u"a-"-f,oi"l

129 L Ed 2dl



of
te
n-
fr
le
rt
le

rexr.>raLures.. ut S\vilnn v Ac.lams, jgi
llq 140, t7 L Ed zct 501, 87 s'il #;(1967). Even with this c";;;;;;
showing of malappo"tionm"ni,'-iii!
court refrained from action in oraeito.allow the Indiana fegistatuie=io
call a special session for the;;;;";;of redistricting. \tr-hen il; i;;iJ;:ture ignored the court,. firdi;; ;;;suggestion, it was ,ot i.p.op-"" toithe court to orcler statewide' ;;dl.-tricting, as district courts have done

f59m the time Reynotd. 
" Si;;,;;;

s^ 5i3, 12 L Ed 2d 506, 84"!";;1362 ( 1964) , and its companion caseswere decided.{ And see M;;il;;

;,11ui: i # r{ H ;: ;?;: il tTx2d 5e5,606, 84 S Ct 142e 
-rrs6ai. ""

t2t1 1Jo. can we accept defencl_ant's argument that tf,.'.trtri""v
gf3n yas beyond attack b".r;;;';;:Dis.trict Court had held i, iSr# t;;;
Lt tl?t. time the plan met the ,,sub_
stantial equality', test of n"yrolal.Stout v Bottorff,

t103 US 163l

vvLr. Lvrr.rrrtrr a(.ly renneclsrnce that decision,."" S*"rn--ol
,Ad1."'- .rupra. Rather, ;;;r:tends that because n"ynof J. in"ai_cated that decennial ;"r;;;;;;;:
ment u'orrld be a ,,rational ;pp;;;;l;;
!? ,h",, probtem, a State ;;;;;';"compelled ro reapportio, it.eif moi"than once in a 10_year period. Sr.i,a. reading misconstru". tf," th";;of lur-rota.s in this respect. Decen_nial reapportionment r*. r"gg..t"ias a presumptively rational ;-.th;;

I? o19i9 ,.ctaity, 
monthty, an;;;i';;brennial reapportionment,, r. popr_lation shifted throughout -"iti"

State.{3 Here, the Di;;;:;'A;r", iiJ
Lg,t 

orrter reapportion;.;;;; ;.:
:Yt-t of population shifts .in.e itr-"
l::5 Sput ct.ecision, Orl "rrv'ti;"il;rrrE (|tsparrtres among districts

[lq'i i J:T,*" :r i L * n mm;"[

:i,iliiq*[*1"'":,i,fi f:*:."nt. ?l the District C;r";';#;::mand the ca.se to that couri f"i:fri-
ll:" proceedings consisteni"^;tfirnrs opinion.

(SD Ind 196s). r"r'"t'rlrt;XJ,i::
argue that the 196g varian.". *"i.

It is so ordered.

^ [F9" Appendix to opinion of the
;r";i'' 'see Post' 164,'zi'L E; ;;acceptable under the Rei,nolds test,

itii?l jT, i;,H,: ,T;si:f l;L l,g,yt
:,,::: !1 i1i3#r:, i::., il;t j;: f ::: i;ipermissible for congre!sior"f " i."ai.i.i.t-lng.

xil:&, :?'ii. ti-ff3',t',,"T't"i lll that it ,,would strive to
:j_t.v "r ",y r ;; ;;;' ;";"i;;i;":1";il::::
ever possible, B0? F S

:l t*# #iil,:J,jl,:*i:'{1'!ir'r}
tisuous .-_ .' .' o,.rii"I3"T,,flilo ;;l;rramework [of mathemati."r 

"qr.iiivl iiJrn large part precluo
county-1inss.;'iJ.;;;i"rtu:"ri,";1X'r':",df
none of the statewide reaist.ic-tin;"rb;J
lllt y:"" submitted for the .ouri.."io]
:,-0," :1tj : I, i n cr u 

_d 
i n g tr, o." or- 

-til 
io.JJoano senate minority leaders .ra lr," .i,.-i.]

T1T of 
-the senate m.:orttv 

-.1u.;..";;;:
mrttee, followed the state i""rtii"il", .i"thrs.respect. R 5?_18?, fSg_ZZg.---.".^ 

..,

f;Tt{,.;T*i*";i#ii,'ii'}:#
f {+:"#;, ;:1,}'i ;lils' t},' i,!:TT.; Bl:

H

I
:'
il
'1

",",.i:',lJ,iq';i!;:$il:x.::1f ",::,::1,;^,, 
jf;

;i"L::l^ lf :t[*" *,,"i " **i[: *liicltana Const. Art 4. 8 6, *hi;h';;y; ,l;;
::_unly, for.senatorial lpportionment. shall:i;if"" 

"1#", ." 
o"re,i,i"nt-s".;;;il: f i:';

ffi',ii"J . 
" 

: :,'ff T:, iii:,flh,* : #; l::

ii":+'",ff ,:ty{ilffi ;#,ltx**



388 U. S. SUPRE}IE COURT REPORTS 29LEd2d
Mr. Justice Stewart joins in part

I through VI of the Court's opinion,
holding that the multi-member clis_
tricting scheme here in issue did not
violate the Equal protection Clause
of the Fourteenth Amendment. He

dissents from Part VII of theopinion for the reasons ex_
pressed in his dissenting opinion in
Lucas v Colorado General A.ssembly,
.:77 US 7r3, 7.11, 12 L Ed 2d 63b',.
581, 8.1 S Ct 1459.

SEPAR.{TE OPINIONS

t{03 us 1651

__ Separate opinion of Mr. Justice
Harlan.

Earlier this Term I remarked on
"the evident malaise among the
members of the Court,, with prior
decisions in the field of voter quali_
fications and reapportionment. Ore_
gon v Mitchell, 400 US tlL, Ztg,
27 L Ed 2d 272,335, 91 S Ct 260(1970) (separate opinion of this
writer).

Today's opinions in this and two
other voting cases now decidedl con_
firm that diagnosis.

I
Past decisions have held that dis_

tricting in local governmental units
must approach equality of voter pop_
ulation "as far as is practicable,,,
Hadley v Junior College District, 392
us 50, 56, 25 L Ed 2d 45,51, g0
S Ct 791 (1920), and that the ,,as
nearly as is practicable', standard
of Wesberry v Sanders, 8Z6 US 1,
7-9, 11 L Ed 2d 481, 496,84 S Ct
526 (1964), for congressional dis_
tricting forbade a maximum varia_
tion of 6 jZ. Kirkpatrick v preisler,
394 US 526,22 L Ed 2d 519, 89 S
Ct 1225 (1969). Today the Court
sustains a local governmental appor_
tionment scheme with a lTib iiria-
tion. Abate v Mundt, .l0B US 1g2,
29 L Ed 2d 399, 91 S Ct 1904.

^ .1. -Abate v Mundt, 109 US 182, 29 L Ed
21399,-91 S it 1904; Gordon , frn"iaOius 1,29 L Ed 2d 2?3,91 S Ct 1889.

Other past decisions have sug-
gested that multi_member constitu-
encies would be unconstitutional
if they could be shown ,.under
the circumstances of a particular
case to minimize or cancel
out the voting strength of racialor political elements of the voting
population.', Fortson v Dorsey, BTb
Itjs 433, 439, 13 L Ed 2d 4}i,'4oi,
85 S Ct 498 (196b) ; Burns v Rich_
ardson, 384 US 78, gg, 16 L Ed 2d
376, 388,86 S Ct 1286 (1966). To-
day the Court holds that a'three_judge District Court, which struck
down an apportionment scheme forjust this reason, ,,misconceivea 

the
Equal Protection CIause.,, Wf,ii-
lomb v Chavis, 408 US at 160, 29 L
Ed 2d at 386.

- Prior opinions stated that ,,once
the class of voters is ctrosen unJtheir qualifications specified, *. .""no constitutional way by which
equality. of_ voting power may beevaded." Gray v Sanders, BZi US
368, 3gl, g L Ed 2d gzl, gSO, Aii
Ct 801 (1968) ; Hadley v Junior Coi
Iege Distri ct, J97 US SO,

t{03 us 166l

Ed 2d 45, 52,90 s ct ?r:'gillol
Today the Court sustains ,'prori-
sion that gives opponents of school
bond issues half again the voting
power of proponents. Gordon v
Lance, 403 US L, Zg L Ed Zd Z7B,
91 S Ct 1889.

II
The Court justifies the wondrous

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390 U. S. SUPRE}IE COURT REPORTS 29LEd2d

results in these cases by relying on

different combinations of factors.
Abate v Mundt relies on the need

for flexibility in local governmental
arrangements, the interest in Pre-
serving the integrity of political sub-
divisions, and the longstanding tra-
dition behind New York's Practice
in the latter respectl This case
finds elementary probability theory
too simplistic as a guide to resolu-
tion of what is essentiallY a Prac-
tical question of political polver;
the opinion relies on the long history
of multi-member districts in this
country and the fear that "affirm-
ance of the District Court would
spawn endless litigation." 403 US
at757,29 L Ed 2d.at384. Gordon v
Lance relies heavily on the "federal
analogy" and the prevalence of sim-
ilar anti-majoritarian elements in
the constitutions of the several
States.

To my mind the relevance of such
considerations as the foregoing is
undeniable and their cumulative ef-
fect is unanswerable. I can onlY
marvel, therefore, that they were
dismissed, singly and in combina-
tion, in a line of cases which began
with Gray v Sanders, 372 US 368,
9 L Ed 2d82t,83 S Ct 801 (1963),
and ended with Hadley v Junior
College District, 397 US 50, 25 L
Ed 2d 45,90 S Ct 791 (1970).

That line of cases can best be un-
derstood, I think, as reflections of
deep personol commitments by some
members of the Court to the princi-
ples of pure majoritarian democracy.
This majoritarian strain and its non-
constitutional sources are most
clearly revealed in Gray v Sanders,
supra, at 381, I L Ed 2d at 830,
where my Brother Douglas, speak-
ing for the Court, said: "The con-
ception of political equality from the

Declaration of IndePendence,
t'ro3 us tt" 

,o Lincoln's
Gettysburg Address, to the Fif-
teenth, Seventeenth, and Nineteenth
Amendments can mean only one
thing-one Person, one vote'" If
this philosophy of majoritarianism
had been given its head, it would
have led to different results in each
of the cases decided today, for it is
in the very nature of the princiPle
that it regards majority rule as an
imperative of social organization,
not subject to compromise in fur-
therance of merely political ends. It
is a philosophy which ignores or
overcomes the fact that the scheme
of the Constitution is one not of ma-
joritarian democracy, but of federal
republics, with equality of represen-
tation a value subordinate to many
others, as both the body of the
Constitution and the Fourteenth
Amendment itself show on their
face. See generally Baker v Carr,
369 US t86, 297-324, 7 L Ed 2d
663, 732-747, 82 S Ct 691 (1962)
(Frankfurter, J., dissenting).

III
If majoritarianism is to be re-

jected as a rule of decision, as the
Court implicitly rejects it today,
then an alternative principle must be
supplied if this earlier line of cases
just referred to is still to be re-
garded as good law. The reappor-
tionment opinions of this Court pro-
vide little help. They speak in con-
clusory terms of "debasement" or
"dilution" of the "voting power" or
"representation" of citizens without
explanation of what these concepts
are. The answers are hardly appar-
ent, for as the Court observes today:
"As our system has it, one candidate
wins, the others lose. Arguably the
losing candidates' supporters are
without representation since the
men they voted for have been de-

feated; arp
denied equa
since they I
of their orvr
-vet deemed
tection to c

losing candr

called 'safe'
party wins
US at 153, i

A coherent
what is me
might have
extreme len
has gone ir
the-wisp of

An intere
light which
tion of "vot
reapportionr
ed by the tl
by Professo
Court r'efer
29LEd
model uses
ing power
given voter
ballot in an
assumptionr
the voting I
the electora
that each v
vote for eith
On these a
the voting
County as

2. The Cou
does "not qu
ematics," nevr
be ignored be
a theoretical
take into acc
factors which
ing power of
include party
voting charac'
which go int<
situation."' ,
2d at 377. I
applies, with
"one man, one



feated; arguably they have been
denied equal protection of the laws
since they have no legislative voice
of their ()wn. But rve have not
-v'et deemed it a denial of equal pro-
tection to deny legislative seats to
losing candidates,

t{03 us 168l
. even in those so-

called 'safe'districts where the same
party wins year after -"-ear." 403
US at 153, 29 L Ed 2d at 381.

A coherent and realistic notion of
what is meant by "voting power"
might have restrained some of the
extreme lengths to which this Court
has gone in pursuit of the will-o'-
the-wisp of "one man, one vote."

An interesting illustration of the
Iight which a not implausible defini-
tion of "voting power" can shed on
reapportionment doctrine is provid-
ed by the theoretical model created
by Professor Banzhaf, to which the
Court refers, 403 US at 144-146,
29 L Ed 2d at 376-378.2 This
model Llses as a measure of vot-
ing power the probability that a
given voter will cast a tie-breaking
ballot in an election. Two further
assumptions are made: first, that
the voting habits of all members of
the electorate are alike; and second,
that each voter is equally likely to
vote for either candidate before him.
On these assumptions, and taking
the voting population of Marion
County as roughly 300,000, it can

WHITCOIIB v CHAVIS
r03 us 12{, 29 L Ed 2d 363. 91 S Ct 1858

391

be shown that the probability of an
individual voter's casting a decisive
vote in a given election is approxi-
mately .00146. This provides a
standard to which "voting power" of
residents in other districts may be
compared. See generally Banzhaf,
Multi-Member Electoral Districts-
Do They Violate the "One Man, One
Vote" Principle, 75 Yale IJ 1309
( 1e66) .

t403 us 1691
However, Professor Banzhaf's

model also reveals that minor varia-
tions in assumptions can lead to
major variations in results. For in-
stance, if the temper of the elector-
ate changes by one-half of one per-
cent,3 each individual's voting power
is reduced by a factor of approxi-
mately 1,000,000. Or if a few of the
300,000 voters are committed-say
1.5,000 to candidate A and 10,000 to
candidate Br-the probability of any
individual's casting a tie-breaking
vote is reduced by a factor on the
rough order of 120,000,000,000,000,-
000,000. Obviously in comparison
with the astronomical differences in
voting power which can result from
such minor variations in political
characteristics, the effects of the
129( and 28 ioo population variations
considered in Abate v Mundt and
in this case are de minimis, and
even the extreme deviations from
the norm presented in Baker v
Carr, 369 US 186, 7 L Ed 2d 663,

2. The Court, though stating that it
does "not quarrel with plaintiffs' math-
ematics," nevertheless implies that it may
be ignored because "the position remainl
a theoretical one and does ,not
take into aceount any political or other
factors which might affeit the acrual vot-
ing power of the residents, which might
include party affiliation, race, previous
voting characteristics or any other factors
which go into the entire political voting
situation.'" {03 US, at 145-1.16, 29 L Ed
2d at 377. Precisely the same criticism
applies, with even greater force, to the
"one man, one vote" opinions of this Court.

The only relevant difference between the
elementary arithmetic on which the Court
relies and the elementary probability the-
ory on which Professor Banzhaf relies is
that calculations in the latter field cannot
be done on one's fingers.

3. More precisely, the result follows if
the second of Professor Banzhaf's as-
sumptions is altered so that the probability
of each voter's selecting candidate A over
candidate B is 50.5% rather than S0%.

{. The text assumes that each of the
remaining 275,000 voters is equally likely
to vote for A or for B.



392 U. S. SUPREME COURT REPORTS 29 LEd?n

82 S Ct 691 (1962), and Avery v
Midland County, 390 US 474, 20
L Ed 2d 45, 88 S Ct 1114 (1968),
pale into insignificance.o

It is not surprising therefore that
the Court in this case declines to
embrace the measure of voting pow-
er suggested by Profess6r Banzhaf.
But it neither suggests an alterna-
tive nor considers the consequences
of its inability to measure what it
purports to be equalizing. See n. 2,
supra. Instead it becomes enmeshed
in the haze of slogans and numer-
ology which for 10 years has ob-
scured its vision in this field, and
finally remands the case "for further
proceedings consistent with Iits]
opinion." 403 US at 163, 29 L Ed
2d at 387. This inexplicit mandate
is at

t403 us 1701
least subject to the interpreta-

tion that the court below is to in-
quire into such matters as "the ac-
tual influence of Marion County's
delegation in the Indiana Legisla-
ture," ante, at 147,29 L Ed 2d at 378,
and the possibility of "recurring
poor performance by Marion Coun-
ty's delegation with respect to Cen-
ter Township ghetto," 403 US at 155,
29 L Ed 2d at 383, with a view to
determining whether "any legisla-
tive skirmish affecting the State of
Indiana or Marion County in par-
ticular would have come out differ-
ently had Marion County been sub-
districted and its delegation elected
from single-member districts." 403
US at 148,29 L Ed 2d at 379. If
there are less appropriate subjects
for federal judicial inquiry, they do
not come readily to mind. The sug-
gestion implicit in the Court's opin-
ion that appellees may ultimately
prevail if they can make their record
in these and other like respects
should be recognized for what it is:

a manifestation of frustration by a
Court that has become trapped in
the "political thicket" and is Iooking
for the way out.

This case is nothing short of a
complete vindication of Mr. Justice
Frankfurter's warning nine years
ago "of the mathematical quagmire
(apart from divers judicially inap-
propriate and elusive determinants)
into which this Court today cata-
pults the lower courts of the coun-
try." Baker v Carr, 369 US 186,
268,7 L Ed 2d 663, 715, g2 S Ct
691 (1962) (dissenting opinion).
With all respect, it also bears wit-
ness to the morass into which the
Court has gotten itself by departing
from sound constitutional principle
in the electoral field. See the dis-
senting opinion of Mr. Justice
Frankfurter in Baker v Carr,
supra, and my separate opinions
in Reynolds v Sims, 377 US 533,
589, t2 L Ed 2d 506, 543, g4

S Ct 1362 (1964), and in Oregon v
Mitchell, 400 US llz, 152, 27 L Ed
2d.272, 297, 9t S Ct 260 (1970).
I hope the day will come when
the Court will frankly recognize the
error of its ways in ever having
undertaken to restructure state elec-
toral processes.

I would reverse the judgment be-
low and remand the case to the Dis-
trict Court with directions to dis-
miss the complaint.

t103 us 1711

Mr. Justice Douglas, with whom
Mr. Justice Brennan and Mr. Justice
Marshall concur, dissenting in part
and concurring in the result in part.

The Indiana Constitution provides
that "no county, for Senatorial ap-
portionment, shall ever be divided."
Art. 4, $ 6. The legislative ap-
portionment statutes in Indiana
which implemented that provision

gave Marion Cr
all elected at
also gave the
representatives

Marion Cour
ulous in the Str
townships and
Indianapolis.
this lawsuit w
quire a subdit
member distr
Marion County
tended that th
trict deprived I

tion of the lav
the voting rigl
racial minority

To determine
tifiable minorit
the District C<

lowing definitic

"A primarily r

an urban area
higher relative
and a higher r
substandard h
overall metrop
inhabited pred
bers of a rac
minority groul
of lower socioe
the prevailing
politan area an
the section is
social, legal, or
or custom." 3(

Applying the
tensive evidenc
trict Court four
tifiable ghetto
Township. Tl
trasted the resi
to the state

t{0
Hr

Marion Countl
had been 21 e

came from C
from Washingt
67 representat

5. "There is something fascinating
about science. One gets such wholesale
returns of conjecture out of such a trifling

investment of fact." Mark lVain, Life on
the Mississippi 109 (Ilarper & Row, 1966).



{os Lrs Y#T.8}TJ,:ft"tJct 18s8 3e3

gave Marion County eight senators, Center Tor+'nship and 28 from Wash-
all elected at large. The statutes ington Township.
also gave the county 15 at-large The District Court concluded:
representatives' "The inequity of representation

Marion County is the most pop- by residence of legislators between

ulous in the State. It contains nine Washington and Center Townships
townships and includes the city of is apparent Washington
Indianapolis. On January g, t-969, Township, the upper middle-class

this lawsuit was commenced'to re- and wealthy suburban area having
quire a subdivision of the multi- 14'64% of the population of Marion
member districting practiced in County, was the residence of 52.27 %
Marion County. Ce"rtain voters con- of the senators and' 4l'79% of the
tended that the multi-member dis_ representatives. Center Township,
trict deprived them of equal protec- having 4l'74% of the population

tion of the laws because it ailuted (approximately three times as

the voting rights of an identifiable large), was the residence of.9.5l%
raciar minority within the county. :l 

,ii,;:ilil?il.0"ii*kil,ii.-i"1t
To determine if there was an iden- 17.91% of the representatives

tifiable minority within the county (approximately three-sevenths of
the District Court adopted the fol- Washington Township)." 305 F
lowing definition of "ghetto": Supp, at 1385.

The court found that the voting
strength of the cognizable element
within Center Township was severe-
ly minimized, that minimization oc-
curred by virtue of the strong con-
trol which the political parties exert
over the nomination process in
Marion County, and that black vot-
ers within Center Township are un-
able to be assured of the opportunity
of voting for prospective legislators
of their choice. The court further
found that "[u]nder the evidence
before the Court such invidious ef-
fects will continue so long as Marion
County is apportioned into large
senate and house multi-member dis-
tricts." 305 F Supp, at 1399.

I
Based on its findings the District

Court held the then Indiana appor-
tionment acts unconstitutional and
enjoined their enforcement. The
court then determined

I4o3 us 
"'lnr, to redis-

trict Marion County alone would
leave constitutionally impermissible
population variances between the

"A primarily residential section of
an urban area characterized by a
higher relative density of population
and a higher relative proportion of
substandard housing than in the
overall metropolitan area which is
inhabited predominantly by mem-
bers of a racial, ethnic, or other
minority group, most of whom are
of lower socioeconomic status than
the prevailing status in the metro-
politan area and whose residence in
the section is often the result of
social, legal, or economic restrictions
or custom." 305 F Supp 1364, 1373.

Applying the definition to the ex-
tensive evidence in the case, the Dis-
trict Court found there was an iden-
tifiable ghetto area within Center
Township. The court then con-
trasted the residence of those elected
to the state

t403 us 1721
House and Senate from

Marion County since 1960. There
had been 21 elected senators; two
came from Center Township, 11
from Washington Township. Of the
67 representatives, 12 came from



394 U. S. SUPREME COURT REPORTS zgLlJdzd

35iiliJ:,x'i13'iH;i'*T,T"Tl::: order or the District court (absent

ff ::l#X, ",,rH 
en ti re s iL'i" 

" #,I #1iJ"1%J,:"#Sl,l::1,+itT,:j
tr,".oi.iii., -i",llr::i,,:,#"$:fl 

3}:: trict couri;;1;iretain jurisdiction
half of tr," .ounti"s in the state 

and no attempt by the .trtu''""'""despite Art. 4, $ 6, of tf,"-'f"IrJ tr03 us l7{l

$: t'*:'J 
.j 
i*; 

", 
y6 

;1!, 
g1 #;i: i:::tidi 

o,*" *;,,1 _.L.""Liti
s_enatoriat djstricts. 

"ra ", 
"JilTtf

::"|i,!tff l.li,'H'ili.rt*fuii"SJTiiit:lfi i!:":fi1*Ht',?,'.ff

fl'*$l*ll'ilffi tr {}fl 1;"H":,H i,f:,f"#:,.ffiproved and the court retain"a jrJI- constiiuiion;;';: amended in timediction for the purpose or prr.ir! 
19^y^,1a"-it,".#;ri= By its own pro_on any future claims u *.Jr.tiirl T,:rt, ,ny ,.urrament requires a

tionalitv made bv tr," prrirliii. maiority 
""t"'ir'"".h house of two

iii$l,t'1,il'i1"F,',;'i[:f 
,ffil 

fol:e"uiiue ;";;"J assembries ; itcourt ,!uy"a" tilu"'n-i.i,i.;-.c"#,; ;:ilffX ffirffi;:",l", Ti;j",fft 1ti;;?3, 3',& yfr ,rss, zi- t Ei'ra" s

portioning
thereafter,
remain unal
cennial cen
Acts 1969,
must still br
general ass(
of the voter
the Indiana
time this cas
lndiana App
(2d Spec Ses
the 1960 Der
cepted as co

t
Nor does 1

legislature hz
ment plan at
districts thro
moot this cas
below no sucl
forthcoming.
violation of
and in view r
diana Legisla
that provisior
tion before i
impetus eam
The provision
tion forbiddin
senatorial ap1
stitutional un
stitution as a1
ty. See Reyn
at 584, 12 L E
the case woulr
If we were t
courts would
apportionment
of the statr
then the parl
back where th,
ning of this k
ent this contn
and that there

-

l. Wallace, L,e
In Indiana: A (
6, 30 (1966).

2. The District
dependent of the
were impermissib
in the Indiana ap

This suit was commenced some 22months tefore the 1920 ei""ii* ?rr-

l.p]g time for a decision-;';i;merits.. The ptaintitr_ il;;';;;betow but this Couri ;i#; ;;:
:"9:". Now the 

"f".tirr"i,r."nJlriheld. and a federal a"""nrirf*l#;;
Li: b":n, jake1. una"" iiiJ.;ff:
:{{,f i,'} : "ff:,:ffi' ;Lr 

",,tii:tsrngte-member district, fo" Jf,"".iItire State. But absent a federal de_cree they would certainty foil-o# th.m^andate of the Indiana C"r.irir]tron.

fq'1ififrI+fr-Hj,",fr:*#$an,identi fi abte racial *l;;tiia.'i;jvoting strength severely .i;il;r;;
?I. t!. operation of _"rfii-*;b";districts. We also hrr.-;';",iff;
1,111 

,h". invidious effects ;iril;:
_r,ny.g 

.o long as Marion Cil;;;mutti-member districts. ,il; ;;I

.. The Indiana Constitution requires"an enumeration
irhr6;;;1. ,iill,r," ,"" 3f i*#fJ:
ifi:{:11; l"u t" fi**i;;Jirregrslative session, th" 

-;;;;;i.;::

:it:':,1!iii:;1" t" ;i,:*xlti timale inhabitants

ffiti;tdi;HifrH"j*L:{tron provided for
prior to Baker u 

"Y1t 

in 19-21 and,

i i,r; ii^Elrl #"1 Llr#i ii.;
l-99it_l"l,r": had not u"* rppo"il:,;srnce that time. S"" Ulitr,eri, ";
.*1119,"r_, lze F Supp +20 (ND rnd

,t],!i,l*HlU,%;l*l,"i,il;##
I9::y courts had no power to re-qulre.reapportioning 

unde" tfre 
-.trte

i:T:ii'll"Ji,f ",Tr","r"r.Jb,"dt;i

^-ll 1999 the tegistature initiailvapproved proposed ."r.tiirtirl_,Jr

y",i:i6,'fi i H:,ff .,;;:l;J.#:i*
decennial census to" friairri ffi;;



portioning the State immediately
ihereafter, such aPPortionment to
remain unaltered until the next de-

cennial census. SJ Res No' 26,
Acts 1969, c 464. The Provision
must still be aPProved bY the 1971
general assemblY and a majority
of tne voters. See Art 16, $ 1, of
the Indiana Constitution. At the
time this case lias argued under the
Indiana Apportionment Act of 1965
(2d Spec Sess), c 4, $ 1, and c 5, $ 1,

the 1960 Decennial Census was ac-

cepted as correct.

t{03 us r75l
Nor does the fact that the state

legislature has passed a reapportion-
ment plan abolishing multi-member
districls throughout the entire State
moot this case. But for the decision
below no such Plan would have been
forthcoming. The Plan is in Plain
violation of the state constitution
and in view of the fact that no In-
diana Legislature has ever violated
that provision of the state constitu-
tion before it is obvious that the
impetus came from the outside'r
The provision of the state constitu-
tion forbidding dividing a county for
senatorial apportionment is uncon-
stitutional under the Federal Con-
stitution as applied to Marion Coun-
ty. See Reynolds v Sims, 3?7 US,
at 584,12 L Ed 2d, at 540. Mooting
the case would accomplish nothing'
If we were to moot it, the state
courts would likelY void the 1971

apportionment Plan as violative
of- the state constitution and
then the Parties would be right
back where theY were at the begin-
ning of this lawsuit. It is aPPar-

ent this controversy remains alive
and that there is no reason to wait

WHITT:OilIB v CHAVIS
{03 us 124. 29 L Ed 2d 363, 91 s Ct 1858

395

two or more years in order to decide
it in a case growing out of a state
court determination on the constitu-
tionality of single-member districts
in Marion CountY, as would haPPen
should we vacate the decree below
and force the Parties to another
forum for another round of litiga-
tion on the same issue.

The constitutional provision which
now requires multi-member sena-
torial districts has been in Indiana's
constitution from the date of enact-
ment-1851. And the ghetto vot-
ers' position as a class will not
change. The findings of the District
Court clearly state the invidious ef-
fects will last so long as multi-mem-
ber districting lasts. The District
Court found that "to redistrict Mar-
ion County, alone, to provide single-
member districts or any other tYPe
of districts meeting constitutional
standards, would

t403 us 1761
leave impermissible

population variations between the
new Marion County districts and
other districts in the State." 305
F Supp, at 1399. AccordinglY
the court redistricted the entire
State.r The decision to redistrict
the State and the finding of mini-
mization of the ghetto voters'
strength are intertwined. As the
District Court stated, the "portions
of the statutes relating to
Marion County" were found to be
not severable from the full bodY of
the statutes. 305 F SuPP, at
1399. There is no showing here
that that finding is even Partially
erroneous let alone clearly errone-
ous. A decision to redistrict Marion
County involves the entire State;
each properly must be considered
with the other.

l. Wallace, Legislative Apportionme,nt
In Indiana: 

'A 
Case History, 42 Ind LJ

6, 30 (1966).
2. The District Court also found in-

dependent of the new districts that there
wele impermissible population variances
in the Indiana apportionment. The ratio

between the largest and smallest Senate
district was 1.32? to 1. For the llouse it
was 1.2?9 to 1. Under the plan promul-
gated by the District Court these were
ieduced to 1.01? to 1 and 1.020 to 1 re-
spectivelY.



U. S. SUPREME

II
The merits of the case go to the

question reserved in Fortson v Dor-
sey, 379 US 433, 439, 13 L Ed 2d
401, 405, 85 S Ct 498, and in Wells
v Rockefeller, 394 US 542, 544, Zz
L Ed 2d 535, 537, 89 S Ct 1234,
whether a gerrymander can.be "con-
stitutionally impermissible." The
question of the gerryrnanders is the
other half of Reynolds v Sims, 3ZZ
us 533, 12 L Ed 2d 506, 84 S Ct
1362. Fair representation of voters
in a legislative assembly-one man,
one vote-would seem to require (1)
substantial equality of population
within each district and (Z) the
avoidance of district lines that
weigh the power of one race more
heavily than another. The latter
can be done-and is done-by astute
drawing of district lines that makes
the district either heavily Demo-
cratic or heavily Republican as the
case may be. Lines may be drawn
so as to make the voice

t4o3 us 
"tl, on" racial

group weak or strong, as the case
may be.

The problem of the gerrymander
is. how to defeat or circumvent the
sentiments of the community. The
problem of the law is how to prevent
it. As Mr. Justice Harlan once said
"A computer may grind out district
lines which can totally frustrate the
popular will on an overwhelming
number of critical issues." Wells v
Rockefeller, Sg4 US, at Eb1, ZZLF,,d
2d at 531 (dissenting). The easy
device is the gerrymander. The
District Court found that it operated
in this case to dilute the vote of the
blacks.

III
In Gomillion v Lightfoot, 364 US

339,5 L Ed 2d 110,81 S Ct 125, we

3. .See{yler & Wells, The New Gerry_
mander Threar, AFL-CIO American Fed-
erationist 1 (Feb. 19?1).

COURT REPORTS 29LEd2d

dealt with the problem of a State
intentionally making a district
smaller to exclude black voters.
Here we have almost the converse
problem. The State's districts sur-
round the black voting area with
white voters.

Gomillion, involving the turning
of the city of Tuskegee from a geo-
graphical square "to an uncouth
twenty-eight-sided figure," 864 US,
at 340, 5 L Ed 2d at lLZ, was only
one of our cases which dealt with
elevating the political interests of
one identifiable group over those of
another. Georgia's county unit sys-
tem was similar, although race was
not a factor. Under the Georgia
system a farmer in a rural county
could have up to gg times the voting
power of his urban-dwelling brother.
See Gray v Sanders, BTZ US 968, g
L Ed 2d 821, 83 S Ct 801. Here the
districting plan operates to favor
"upper-middle class and wealthy,,
suburbanites. 30S F Supp, at 1BIiE.

A showing of racial motivation is
not necessafy when dealing with
multi-member districts. Burns v
Richardson, 384 US Zg, 88, 16 L Ed
2d376,388,86 S Ct 1286; Fortson
v Dorsey, 379 US, at 4Bg, 18 L
Ed 2d, at 405. Although the old
apportionment plan which is in
full harmony with the State,s
1851 constitution, may not be racial-
Iy motivated, the test for multi-
member districts is whether there
are invidious effects.

t403 us 1781
That rule is but an application of

a basic principle applied in Hunter
v Erickson, 393 US B8S, 21 L Ed Zd
616, 89 S Ct 557. There a city
passed a housing law which pro-
vided that before an ordinance regu-
Iating the sale or lease of realty on
the basis of race could become effec-
tive it must be approved by a major-
ity vote. Thus, the protection of

minority interr
more difficult. \
or a state agen
voting scheme s<

interests.

Multi-member
per se unconstit
Dorsey, 379 US
2d, at 405. In th
reserved j udgmr
of whether a mu
ing plan which
imize or canc€
strength of racj
ments of the
could pass con
Ibid.

In Burns v Rir
again considerer
multi-member dir
noted in Fortson
solved and we st
the requiremenl
Sims, 377 US 53
84 S Ct 1362, wr
member distric'l
tional "only if it
'designedly or <

[such a district
minimize or can
strength of raci
ments of the l
384 US, at 88, 1
We went on to su
den of proof coul

"It may be tha
fect can more ea!
contrast to the fa
tricts are large
total number of
tricts are not ap
tricted to assure
islators that are
entire district, o

4. The three-judt
that the black plain
an identiffable interr
strength had been nr
member diatricting
not only unable to
was attuned to the



TVHITCOIIB v CHAVIS
.r03 Lrs 12{, 29 L Ed 2d 363, 91 S Cr 1858

39?

minority interests became much
more diltcult. We held that a State
or a state agency could not in its
voting scheme so disadvantage black
interests.

Multi-member districts are not
per se unconstitutional. Fortson v
Dorsey, 379 US, at 439, 13 L Ed
2d, at 405. In that case we expressly
reserved judgment on the question
of whether a multi-member district-
ing plan which operated "to min-
imize or cancel out the voting
strength of racial or political ele-
ments of the voting population"
could pass constitutional muster.
Ibid.

In Burns v Richardson, supra, we
again considered the problems of
multi-memberdistricts. The doubts
noted in Fortson v Dorsey were re-
solved and we stated that assuming
the requirements of Reynolds v
Sims, 377 US 533, 12 L Ed 2d 506,
84 S Ct 1362, were satisfied, multi-
member districts are unconstitu-
tional "only if it can be shown that
'designedly or otherwise'
[such a district would operate] to
minimize or cancel out the voting
strength of racial or pqlitical ele-
ments of the voting population."
384 US, at 88, 16 L Ed 2d at 388.
We went on to suggest how the bur-
den of proof could be met.

"It may be that this invidious ef-
fect can more easily be shown if, in
contrast to the facts in Fortson, dis-
tricts are large in relation to the
total number of legislators, if dis-
tricts are not appropriately subdis-
tricted to assure distribution of leg-
islators that are resident over the
entire district, or if such districts

characterize both houses of a bicam-
eral legislature rather than one."
Ibid.

These factors are all present in this
case. Between the

t{03 us r79l
largest (Marion)

and second largest (Lake) counties
in the State, 26% of each house of
the legislature is controlled. There
is no subdistricting under the In-
diana plan. Cf. Dusch v Davis, 387
us 112, 18 L Ed 2d 656,87 S Ct
1554. And multi-member districts
are used in both houses of the leg-
islature.

In both Fortson and Burns we de-
manded that the invidious effects of
multi-member districts appear from
evidence in the record. Here that
demand is satisfied by (1) the show-
ing of an identifiable voting group
living in Center Township, (2) the
severe discrepancies of residency of
elected members of the general as-
sembly between Center and Wash-
ington Townships, cf. Brennan, J.,
dissenting in Abate v Mundt, 403
us 187, 29 L Ed 2d 404,
(3) the finding of pervasive influ-
ence of the county organizations of
the political parties, and (4) the
finding that legislators from the
county maintain "common, undif-
ferentiated" positions on political
issues.{ 305 F Supp, at 1385.

IV

Little time need be spent on the
District Court's decision to redis-
trict the entire State. The court
found that there were already im-
permissible population variances be-
tween districts under the current

4. The three-judge court "emphasized
that the black plaintifrs were members of
an identifiable interest group whose voting
strength had been minimized by the multi-
member districting scheme. They were
not only unable to elect a legislator who
was attuned to their interests, but were

also saddled with lawmakers who re-
flected white suburban ideology and were
controlled by political leaders." Note,
Chavis v Whitcomb: Apportionment,
Gerrymandering, and Black Voting Rights,
24 Rutgers L Rev 521, 533 (1970).



398 U. S. SUPREME

apportionment plan. The ratio be-
tween the largest and smallest Sen-
ate district was 1.327 to 1. For the
House it was 1.279 to l. The court
also found that the new Marion
County districts would also have
impermissible population variances
when compared to existing districts.

t403 us 1801 '
[le-2ll On these facts the de_

mands of our decisions required re-
districting. As Reynolds v Sims
showed, the state constitution must
give way to requirements of the
Supremacy Clause when there is a
conflict with the Federal Constitu-
tion. And, finally, the District
Court's own plan was exemplary.
The population ratio for the Iargest
and smallest Senate districts was
1.017 to 1 and for the House it was
1.020 to 1.

v
It is said that if we prevent racial

gerrymandering today, we must pre-
vent gerrymandering of any special
interest group tomorrow, whether it
be social, economic, or ideological.I do not agree. Our Constitution
has a special thrust when it comes
to voting; the Fifteenth Amendment
says the right of citizens to vote
shall not be "abridged" on account
of "race, color, or previous condition
of servitude."

Our cases since Baker v Carr have
never intimated that ,,one man, one
vote" meant ,,one white man, one

COURT REPORTS 29LEd2d

vote." Since "race,' may not be
gerrymandered, I think the Court
emphasizes the irrelevant when it
says that the effect on ',the actual
voting power" of the blacks should
first be known. They may be all
Democratic or all Republican; but
once their identity is purposely
washed out of the system, the sys_
tem, as I see it, has a constitutional
defect. It is asking the impossible
for us to demand that the blacks
first show that the effect of the
scheme was to discourage or prevent
poor blacks from voting or loining
such party as they chose. On this
record, the voting rights of the
blacks have been ,,abridged,,, as I
read the Constitution.

The District Court has done an
outstanding job, bringing insight to
the problems. One can alwayJfault
a lower court by stating theoretical
aspects of apportionment plans that
may not have been considered. This

t403 us 181I
District Court acted earnestly and
boldly to correct a festering electoral
system. I would not even vacate
and remand so that it could revise
its plan in accordance with the 1920
census figures. That court has re_
tained jurisdiction of the cause and
has sense enough to update its ownplan. We can make the contribution
of the District Court enormous and
abiding by leaving it the initiative
to carry out the mandate of Reyn_
olds v Sims.

I would affirm the judgment.

Arg

In a suit br
to compel the .

cordance with
creating a cou:
five towns, on
number of legi
population excr
the nearest in
in one town to
sequent 4.8 per
representation
Appellate Divir
the Court of A

On certiorari
by Mansxur,
held that the t
light of the abs
or interest and
towns and the ,

public services

HARLaN, J.,
cannot restrucl

SrEwaRT, J.,

BnENNIN, J.,
lines could not
result was an I

Briefs of Cor



o u' 
'Jaril

finding of intentional discrimination in vio teinth amendment in racial vote dilution
lation of the fourteenth amendment against cases. Id. at 66, r00 s.ct. at r4g9. Theblacks and Hispanics in the drawing of the plurality opinion of the Suprerne cor"t ,t.oCity Council map.r concludld ih"t, b"."u.e Congress intendedrr f:,j::-T:lfJ"Hrii"r,"r,#"-,l,.lt*i
The 1982 Voting Rights Aet Amendment also required proof of discriminatory in-

tll The Voting Rights Act, 42 U.S.C. EnL Id' at 604t r00 S.CL at 1495-96.
g 1g?g, was amended and extended in June The relevant legislative history of amended

1982. Under the previous version of sec- section 2 expressly states that it was in-

tion 2 of the Voting Rights Act, which had tended to replace lhe Bolden intent re-
been judicially eonstrued to parallel the fif- quirement with a "rt'sults" standard. Con-

teenth amendnrent, a violation could be 
gress intended that, ,,[i]f the plaintiff pro-

found only if the discrimination were found ceeds under the 'result.s test', then the

to be intentional. City of Mobile t. Bol- court would assess the impact of the chal-

dett, 446 u.s. 55, oo--or,-100 s.cr. r4e0, li:::,1.,*::H::,"}i#:T:;LT;j;:i::1495-96, 64 L.Ed.2d 4? (1980). The mosr
signiricant change brought about by the fiHiilT 

'At""Xt"#:"i:"Xji:L'J:::l1982 amendments \t'as to eliminate the re-
quirement or interttional discrimination by ii*td il3;,-,1 ';$",fi- #ii;; Tsubstituting a "results" tes_t for the ,,pur- 

lgg2 U-S.Cooe Coxc & Al.Ncws 177 etpos.e" test imposed by the Suprente Court seq., Z1i.
arrd lry listing the factors to be considered
in detlrmining whether on the basis of the The standard for determining a section 2
"totality of circumstances', the Act has violation was indicaietl in the legislative

KETCHUM v. BYRNE
ClteuTl{)F2d t39E (t9t4) I403

Neu' Subse.ction 2(b) delineates the Ie.
gal analysis which the Congress intends
courLs to apply under the ,,results test.,'
Specificallv the subsection codifies the
test for discriminatory result laid dou,n
by the Supreme Court in White t. Reges_
ter .... 112 U.S. lii, at ?66, ?69 [99
S.Ct. 2332, at 2339, Zgtr, 87 L.Ed.2d
3141. The courts are to look at the totali-
ty of the circumstances in order to deter-

circumsiances, it is shorvn that the political
proccsscs leading to nomrnation or elcction in
the State or political subdivision are nor
equally open to participation bv members of a
c_lass of citizens protccted by subsection (a) of
this section in that its members havc ics.
opportunit), than othcr members of rhc
clectorate to participate in thc political pro,
cess and to elect rcpresentatives of tircir
choice. The extent t<-r which mcmbcrs of a
protcctcd class havc becn clecred to officc in
thc State or political subdivision is onc cir_
cumstance which may bc considerccl: proltd-
ed, Thar norhing in rhis scction establishcs a
right ro have nrcmbcrs of a protectcd class
cleclc'd in numbcrs cqtral to thcir proportion
in thc population.

42 t'.S.C. S te7-1 (19s2).

ln City o.f Mobite u. Bolden,446 U.S. 55,
ro0 s.ct. 1490, 64 L.Ed.2d {? (1980), a
plurality of four Justices had held that, in
order to establish a violation of the fif_
ttenth amendment, a ,,racially discriminato
rv motivation" must be established. Id. at
62, 100 S.Ct. at 149?. Sinrilar proof of
intent was required to establish 

" 
i.iol"tiou

of the equal proteetion clause of the four-

3. 
. Appcllanrs also challcngc rhe sufficicncr of

the disrrict courr's oral opinion purl*r.ting to
<onstirure findings of facr and conciusioni o{lart under Rulc 52ta) ol rhe Federal Rules of
Civil Procedurc. In lighr of our holding on thii
appeal, it is not neccssary to address tliis issuc.

4. Section 2 as amcndcd srates:
(a) No voting qualificarion or prcrequisirc

,9 y9ti"g or srandard, practice, oi p..rcidu."
shall bc imposed or applicd bv anv Sralc orpolitical subdivision in a manncr u,hich rc.
sults in a denial or abridgcment of thc righr of
any citizcn of thc Unired States to .,oic ,.rn
accounl o[ race or color, or in contravclrtionof thc guarantccs scr forth in ,"|,i,r,.,
1973b(0(2) of this rirle. as providcd in subscc.
tion (b) of this stclion.

(b) A violation of subsection (a) of this sec.
tion is cstablishcd if, hascd on tht. totalit). of

I

:

i

I



r404 ?{O FEDERAL REPORTER, 2d SERIES
mine whether the result of the chal-Ienged practice is that tfr" prlili..f p"*cesses are equally open; that i., *iiii-e.r, members of a proteetea cU*s f,au"the same opportunity as oth;;;;#;;

pate in the electoral proeess 
""d il;;;eandidates of their 

"hoi"u. il;ll"are to conduct this analysis on tf,"-Ur"il
yf a.,varjetV of objective factors;";;;-
rng rhe lmpact of the ehallenged practiceand the soeiat and poriti."r-.or.t"ii"ii
which it oceurs.

Senate Report at 6Z (footnote omitted).Plaintiffs, therefore, need only .h;;';;;;
the.challe-nged system or practice, in thecontext of all the eircumstance. in tf,u iu"_isdiction in question, results i, ,iro"ii["being de.nied equal access to the politicalproeess.', Id. at ,27.

. The legislative hisbory and subsequentjudicial interpretation oi th" 198r;;;;;:
ments elearly demonstrate that claims of

vote dilution come within the scope of theAct. Senate Report at,,l0 n. ;;:"R;;;:;;
a. State Board of EL
r 
*t 

;;;;, ;;' 
"l{"tr{ 

",i iff , T,' l; i;:#,?{
lr-tll j!I.:**dge paner) t,nyi i":ii 

"ji:|.
as stared in Rybicki 1/, it is .t"u, ttut'ii,,"amendmenrs are intended .;;i; ffi;t.:tricting ptans and thar their fi;;";;;;current redistricting.ptan po.e. ," oibltems of retroactivitv

tio". i" ;';;il;"J#:t ;::::.i,:lx?
Y: Pa during thl next decade. ;;;;"";II, 874 F.Supp. ar u48 ". 

.l; ,io"ii"*r.
lrey3^sta F.Supp. 825, B4t_i2 r.'fi;.;.
La. 1983) (rhree-judge panel).

. 
In.order to determine whether a suspeetelection structure or praetice .""rt,i,rrJ" Iviolation of section 2 under the ,,results,,

test and in order to remain faithful ioCongress' exphess intent, we shoulrl at-tempt to apply the factors set torth inCongressional Committee reports.5 These
rvhether there is a significant lack ,rf rt,-

:r3:nrir..n"T on the parr 
"f "1".,..1 "iii.irf.,u,:l: lilticytarized necds .f ,h.. ;;;;..;:;;tflc mlnorllv gfoup.

rvhether rhe poiicy underlying rhc statc orpolitical suMir.ision s ,r. or ,rli ..i,"* n,,rilrtication, prerequisitc to voring, ". ,,,i?,j'u,J.p._1:Ji:. or procedure is renuous.
, While these enumerated factors rvill ol.tcn
P. lh. rn9:! relevanr ones, in .o_" ."*ir .it.rltactors will be indicative 

"f ,h. ,ri.,g.i ;iirltion.

. The.cases demonstrate, and thc Comrnirrccintends. that there is no requirement that anvparticular number of factors b. ;;;;;,-:,;that a majority of them point one 
",rV ".',fr"other.

Senate.Repon at 2g-29 (foornores omirtcrl).The Subcomminee on rhe Constilution of rhc
If,,,.".r11,:1"ry Committee enumerared a par.
::1,_,,", ot lwenry ..objective 

factors,, glcane<Irrom various sources, including:
(-l)_some.history of discriminarion; (2) at.
lT9. ,.91ing systems or muhi_mcmber dii_irrcls; {J) some history of ,.dual,, rhool svilems; (4) cancellation of regisrrarion for fiil.ure to vote; (5) residenc-y- requirements for
Illlt.: (6J ..q*ial rcquirements for inrJcpcn.

::1,.r third-parry candidares; (Z) off.i,caretectrons; (8) substantial candidarc .,r.i ...qu^irements; (9) staggered lerms of o[[ir c:(ru; 5;t1r economic cosls assotiatcd rvrrh rcgtstration;,(ll)-disparity in r.orer rcgrstrrrr,,n
Dy race; (l_2) history of lack 9f p.r_rp.,rrr.,,,.,1
representarion; (13) dispsrljl, in lircraev r.u,..
Dy race; (14) evidencc of racial blrr r,rrrlr.

5.,. Th: repon of the Senate Judiciar.v Comnrirrcelisred "twical facrors- as including:

^-,t:, I-: 
extent of anv history of official dis-crrmrnation in rhe srate or polirical ,riai"i-sion thar rouched rhe right .i,h;;;,n";;,:;the minoriry group to rcgisrer, to \otc, or

::Tyt.. ro panicipare i, ,t," a._**j"process;

. 2. rle extent to r.r.hich voring in the elec-rions..of rhe srate o. politi.J ..uiirr,r,"r,"r",racially polarized;
3... the exrent to which the slate or politicalsubdivision has uscd unusually l".g; 

..i;i;
districts, majori ty'ote requ i reme, i., ;;i;-;i;:gle shot provisions, or other ,.;;;;'o;;:'r-i;or procedures that may .nhun.. lir?;;;;:nity for discriminarioi
group; against the minoritY

,4. . if there is a cantjir{ate slating process,whether the members ol
ha-ve bcen i.; ;;' ;:L,t,:1iI T#:r*f ",05. the exrenr to whici ..rii}, ?r ,n.minority group in rhe srare or political subdi-vision bear rhe effecr 

"r ai"f.i_i"rir.il]i.,such,areas as education, employment andhealth,-which hinder rheir 
"Uiiir/,"-p""j.ipate effectivcty in 

_ 
rhe poliricat p.o..*ri-".".

, 
o. wnether political campaigns havl beenchar_acterized by overt o, ,uu"ri. ;;i";peals;

_,rj^_if exlenr.to which members of the
Tllo.lly group ha'e tren elecred . ;;ii;;otfice in the jurisdicrion.

, Additional factors rhat in some cases )rave
LL1-n1*:1,* ,:!l: u,, parr or,r," piririiTir:evroence to establish a violation 

".",. 
-'-"""-

^- -af a rr-



e

d

f
t.

l.
e

a

l-
;o

ti
u.

).

or
tal-

'rd,

ct
I

!

to
rt-

in
SE

re-
to
of

ten
her
ilu-

ttee
any

or
the

ed).
the

par'
rncd

factors were derived from White a. Reges-
tcr, 4L2 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.zd
314 (1y73), the leading pre-Bolden Supreme
C-ourt case, and Zimmer a. McKeithen, 485
F.zd l29'? (sth Cir.19?3) (en banc), affd on
other g,rcunds sub nom^ East Carroll
Parbh School Board o. Marshall,4Z4 U.S.
6it6, 96 S.Ct. 1083, 47 L.Ed.2d 296 (19?6).
Zimmer articulated the aggregate of fae-
tors upon which a claim of vote dilution
might be based. 485 F.2d at t30S-O?.
Whitc t. Regester, which affirmed a dis-
trict court decision declaring invalid multi-
member districts in Dallas and Bexar Coun-
ties, Texas, relied on evidence of traditional
racially exclusionary practices (such as use
of a poll-tax and exclusion of blacks from
the Democratic Party primary process) and
of certain other historical and socio-eco.
nomic factors or circumstances. These cir-
cumstanees included t}le failure of the
Democratic Party to "exhibit good-faith
concern for the political and other needs
and aspirations of the Negro community,"
use of racial campaign tactics to defeat
candidates with black support and the fact
that onll' two blacks had been elected to
the Texas House of Representatives from
Dallas Crcunty since Reconstruction. 4lz
U.S. at 767, 93 S.Ct. at 2340. The district
court thus found that the black community
was "generally not permitted to enter into
the political process in a reliable and mean-
ingful manner." Id.

The approach which Lhe White v. Reges-
ler Court utilized in analyzing the historical
circumstances of the Hispanic communit.r-
of Bexar County (containing the City of
San Antonio) is perhaps more direetly appli-
cable to our case. The Supreme Court
considered the effect on political participa-
tion of discrimination in education, employ-
ment, economics, health and other areas.
Id. at 768,93 S.Cr. at 2840.

It is important to recognize that the cir-
cumstances identified in White c. Regester

(15) history of English-onlv ballots; (16) his-
tory of poll taxes; (17) disparity in distribu-
tion of senices by race; (18) numbered elec-
toral posts; (19) prohibitions on single-shot
voting; and (2O) majorirl, votc requiremenls.

Senate Report ar t43-.14 (foornotes omilted). In
Rogers v. Ittdge, 458 U.S. 61.1, 623-27,102 S.Ct.

KETCHUM v. BYRNE
Clr€ rs 7/$ F2d l39t (t9E4)

1405

were thought to be useful in characterizing
a system utilizing multi-member election
districts. In a case where lines are drawn
to establish discrete electoral units and to
distribute racial and ethnie populations
among districts, the ways in whieh these
lines are drawn may become independent
indicia of discriminatory intent or result.
Such "direct" factors in the drafting pro-
cess of individual districts may augment or
even take the place of the lAhitu a. Reges-
ter "background" factors which indicate
the historical or soeiological elimate of an
entire county or other politieal unit. See
also Major a. Treen, 5?4 F.Supp. at 342-48
n.22.

The political situation in the City of Chi-
cago is obviously somewhat different from
that addressed in ll'hite a. Regester. The
sorts of discrimination in politics and in
governmental contexts which have been al-
leged (and in some cases proven in court) in
Chicago have been less open and notorious
than what was historically the case in Dal-
las and Bexar Counties in Texas. Elected
officials and the Democratic Party in Chica-
go have over the vears been somewhat
more responsive to black and Hispanic con-
cerns, and in Chicago numerous black pub-
lic officials, including aldermen, state sena-
tors and represenLatives, U.S. representa-
tives and now the Mayor have been elected.

However, adverse social and economic
circumstanees involving discrimination, de
pressed socio-economic conditions, Iower in-
come, housing and school segregation, and
traditionally low voter registration and
turnout have existed for the black and
Hispanic communities in Chicago. Rybicki
II, 574 F.Supp. at 1151-52. In addition,
employment or other forms of discrimina-
tion have been alleged or proven in such
city units as the Chicago Police Depart-
ment, the Chicago Housing Authority, the
Chicago Board of Education, the Chicago
Public Library and the Chicago Park Dis-

3272, 3278-80,73 L.Ed.2d l012 (1982), rhe Su-
preme Court approved a finding of intentional
discrimination based upon an anall.sis of fac-
tors similar to tho*- <!iscusscd in the lcgislativc
history of amcndcd scction 2 and those con-
sidercd in Whitc t,. Rcgcster, 412 U.S. 7S5, 93
S.Cr.2332, 37 L.Itd.2d 3t4 (t973).

at-
dis.
sys'
fail-
for

pen'
yeaf
t re'
ifice;
reg-

rtion
ional
rates
)ting;

-1--

it
i+
,:

l.

i".

ilI
l.
I



1406 740 FEDIiRAL REPORTER, 2d SERIES

trict. Rybicki u. State Board of Elet.tions
of the State of lllinois, 574 F.Supp. 1082,
1120-21 (N.D.III.t982) (three-judge panel)
["Rybicki f']. While blacks have been rep-
resented in the City Council, the Hispanic
community has not, having elected no al_
derman between lg20 and 19g0. Stip. ll?.
In Pu.erto Rican Orgarti.zation for politi-
cal Action u. Kusper, B50 F.Supp. 606, 611
(N.D.Ill.19?2), afJ'd, .190 F.2d 575 (?th Cir.
1973), the district court issued an injunction
requiring the preparation and distribution
of certain election materials in Spanish in
order to protect the right to vote of Span-
ish-speaking individuals. Finally, we note
that the three-judge Rybicki court found
intentional discrimination in the redistrict-
ing plan, based on the lgg0 census, of
qertain state legislative districts in Chicago.
Rybicki /, 57.1 F.Supp. at 1108-12

The district court, in the case before us,
rejected plaintiffs' cl:rims of a section 2
violation based on dilution of nrinoritv vot-
ing strength through p:rcking lnd fractur-
ing of minority comrnunities. Instead it
found that these practices were the re.sult
of ser-ere housing segregation of the black
community in certain areas and the incum_
bent aldermen's desire to protect their in-
cumbencies (Tr..1102). The court did, how-
ever, find a section 2 violation, not on the
basis of purposeful discrimination. but on
the basis of the retrogression in the lggl
rnap in the number of wards with a black
majority population. lVe approve this find-
ing of a section 2 violation based on retro.
gression and on the manipulation of racial
voting populations to achieve retrogression.

prove that the disputed plan was ,conceived

.IEruxrT-,rff*Et
1858, 18?2, 29 L.Ed.2d 363 (19?1)). i;-;
not, however

ils
,'rm

-'.oth
ino

I tiot

.bh
:.:. der

.. . tj'''i. 
x

rl',j: . I
-j.r- (
j,:i. t
.: :. {:;'. i
- :,ri :
'],rl l

demonstrafe that discriminatorv Durnos;
|r" 

pTIEa-.:.E,s T"qi"^t,*E; rl;il,rre]lgeo redlstnctlng plan as Iong as it is oneo V;ti,i;
Het ghts u. llet ropolitan Housi frffiii^
til"flttorp.,.129 U.S. 252, 26-0-66,9Z S.(:;.
555, 563, 50 L.Ed.2d 450 (t9TT); Rybickr i,
574 F.Supp. at 1tOG{?.

-l-n Rogers u. Lodoe, 4lg U.S. 618. 10..1
S.Ct. 3272, z3 L.Ed.2d l012 (1982), the Srr_

; !ll?
.'1 tk

';:i;'!'l
.J,: ,lln
..I:'r'ul

#,{,;Fi:l:ru
':l-iji d'ut
,' 

15

d
.'i. 

,. n
r.. i. ,r- II
:.*
,.; ls,: (.;, 

n
,V

t

III
Intentional Discrimination

12] Appellants also ask us to reverse
the trial court's determination that there
has been no fourteenth amendment viola-
tion. t+@q"b["h.r.h 

" "t"Itu,we would be reouired ty

intentional discrimination

dorsed its reliance on a "totalitv of
Id. at

of
rntent v0t I illI

1983) (district court deeision remandtrl for
reconsideration in light of amended sccrir)n
2 of the Voting Right Act and Pog,'rs r,.

Lodge which recognized that discri nr itlat()r).
purpose can be based on circumstantial rvi-
dence including the Zimruer factors); 8rrs.
key u. Q1i1,s7,565 F.Supp. 14?3, l48t (Y.D.
AIa.1983) (discriminatory result nay be cs'
tablished by several relevant "circunrstrrn'
tial factors" enumerated in the pre-Bo/r/cr
cases, White a. Regester and Zintttr r
McKeithenl; Note, The Constituliortrtl
Significance of the Discrimittatory [../'

fects of At-Large Electiorts, 9l Ylr.r: 1...t

e74,978-8i (1982).

The district court in the case bufort' u.
found that protection of incurnlrerrt akltr'

*

Council had . intentionally discriminatei
ug

.4,ti_

',i
,.,ti{
:.-,)

. ''::
:il1+ii,

posrtion in
overru

ctrcumstancesri).m[

ll.

ment and housinu tlis-

n, 708 F.2d 106rr (6th t'ir.

100 s.ct. 1490,ruu s.Ut. 1490, 64 L.Ed.2d 47 (1980). The
Supreme Court there stated in its plurality

t*fr'

iff must

-'a '.a la



7 -.r.

Ctre s 7{O F2d f 39t (l9M)

*:n*;.i ffp*ffi
fii:#Htli*Tffiffi 

""'

KETCH[IM v' BYRNE
1407

ilffi;;; "i-;r"11; ll"*:."lillliJJ; H ff.ffi-;q;'1a.i"t

lation designed toiilute
See Appellants' brief 

. " 'l', P::"Xlf.tr: T*ffi il in

:li:-::?,nt"i""r*'"J*i "'t'i'i' 
read to ;;ilJ;;-'"Ji't'i"ing mandate' rhree

;l;,,?;;;" ', 
* 

ry".1?"..""1,ii:xl#; *;ru:ffi:t Xil:ills :ti,l""iil,
:iliLT ;.:}",,:*il.iL;,;;;;: 425-u's #;^il: riit'r r'"a a strong braek prurari'

rio. rar,96 s.ct' 
'eux 

i3il';? L'Ed'zd t,' In order to-aeeomplish the requtreo

6.lrr (19?6) lretrogressio; tr;; fosition of rlai.itiu",i"t of . population' however'

r.cial minorities is notle;;.i"tl'under the ;;;;-il ;";" moved' out of these wards tn

Vtrting Righls o*" 
''l'it;';'bli;;'" :" '"itr' 

g'""ttr numbers than their propor-

t'.Srrpp. 1473' 1482 tM'o'et" rss3) (retro- ii"rr-"r-tn" population and in greater num-

uression may constitui" Lr"*i'r vote dilu- ;;;;; ;ouiredto'occomplish the neces-

ti,,u under anrended t"t''i"" Z tf the Voting t"t' t"a"ti"r1' Additional people' comprls-

Ilishts Act); Cilv otio't Arthur'7"e'ros r' il';;;;i Y*: and non-minorities'

I'iitedSlotcs' u" t'S""^osi' 
'bzz 

too' *!'" tt'"n moved'into these wards .o make

t:.le$l) (three-judge ;#" "^"iit-yrl "''*"'o-"iiti'*i*'-otusulting 
sharp reduc-

lie. 103 S.Ct.530, #;';ih-334 (1982) lil" irr the proportion of blacks in those

(reducrion of black ;,.;;-;;.;;th indi- *"ia.. This process is illustrated bv the

cates "invidioot *o'iulli"i' "tti""' 
for de- follo*'ing chart:

lgio "; Total -'i 
Total oct' 

''

\\ artr lr{ap eir.k '"ilIb" 
ui'"* ""'"o*T"^ itt 

Marr Black

? 6$ 53, 62 6 u ] 1e l',[ l:lt ullt !!'?ii ii'i,1, ;i:ffi oii 1?,s{? ii.i, -l,t* .ll 33:}31 tl.?ii ;;:o$ 1e'3 19'i?l e6 2 2:r,14e

3; ??.394 16 4 40'035

?:,,;l;;;;,', nao u.s. tso. ta;' 100 s'ct' ,iil;-mrtatt"' r'*rore had to De

i;il:i#;;i'ibaza ile oe80) G,:^.^T'l '@-ii"r lll:",L::9'_y#ft fnfi
.s. 613, 102

)82), the 8u'
rat fiom th
thout acturl.
Bogera th'
urt's findin3-
med on indi
nce and er
ality of tl*
. at 6D-Tl, ;

:tors cited b
rmination of
bloc voti"g _

rter registr*
;ical proceus;

officials to

lsed socio+e
inferior edt
housing dis'
hrchanon.t, '

066 (6th CHr.

'emanded for
:nded section
nd Rogerc a.

iscriminatory
mstantial evi'
actors); Bul-
3, 1481 (M.D.

It may be es-

"circumstar
e pre-Bolden
7 Zimmer u.

'tnstitutional
ninotory Ef'
91 Yer,n L.J.

rse before us

.rmbent alder'

I
I

I

;lf,iT,, ffi";i;;; Brier or Derend- mrnorqr- vot',s s":i*
a,t-Appe*ee,^rl:-cl,v i;;;tr-of the citv :;ffilxlffiilfi

I

i
1
lt
l:iof Chicago [Def.Ex']' ,:,:^,r i- rhp il,; excluded blacks "packed" into a

,}M*Ji:districtwithanunneces.ariiyhighpropor.
6. Rcrrogression ..,::i:1iff1:H:"'5 r5:':: l::l:: # "r; {:;'?!i';fi'"I'r;''o""r

vot i ng st rength' T'l'"-'":l;J,i' s"' iT' rt . v.,t iug
ca*s brought under sl



tion of blacks and with

"ts4r"i".. 
" pririoS*Iltlg=rL*t"" mizes the number of contests between

r u r- uE*o",,i*',i' :, rr;;.#tl i; X. *Tnjj!HfJ.T"*:,i1;:iri;Hi;*ll
{i'*"111':::1trTfl,;J'P,ml l*1;: !2,t,-bi: c,,iii- iinda, 688 F 2d,z,e,*l:f !-tuy would constitrt" 

"".ir":"ui" iri 
1245 (5th cir.) ("the desire to rerain one,spolitic-ally-ineffective minority, were also 1l1mbenc1 unaccompanied by other evi-

11"#i1", 
Rybicki I, sin''ri,pp ''"i 

iiii: ,t-,i:";;i,:LIJ[*ff,.xx?;

1408 7I0 I.'F)I)I.IRAt, RHpoR,l.t:R. 2d SI.:RIUS

@*b";: ly-impossible to preserve rvhire incumbene-

T [:Pli;::i]:]t'];ffi iJm mi"l";

. blacks"), cert. dismissra'iut-ior"l ;;:;I L;. CitU of pensacola, Floridat,;;ti.- e46, l0z s.cr. l?, 6e L.Ed.za ibsilrg"8;.n racated in parl688 F,.2d naolrsil),';;;;i," :!:"0^:yyTd"!,_ u.s _, 1ij;ffi;everrhetess, the rizi, ao r,.na.ia 'eo rrr"ro"i.;"llij"ij;
,rsued that thi. !!e court-fou.nd in Rybicki r,n"t tt" 

"uil

il iil6::lT;:T:,*"":::jtr$#xiii:

ll"ffi liJ,l"""l*;i,ffi h-*"::i:Hl[#:t"J,l,1,T^r'!,"ri,{"'Iil'i:,"JI
iff;l;il,ff 1#ll:Ht'::ilh,"T,'ff i["-1il'":t#il:T',xul;,*r':r*illSenator and was not n".u.*-i.,rr-rraj.I crimination in the redistricting pl* u"-tive,of an intent to discrimina;".i};; cause racial discrimination was the neces-olacks qua blacks. We believe h^r,o-o. sary accompaniment of the actinn roLa- r^

a sare, primarily w
\t to :^.:l'_"^": H,rrr.vrnanoenng to limit black rep.

ilict llljl^T,llr:,it seems to fotrow that man.v
l?ni- oevlces employed to preserve incumbencies

are necessarily.racially discriminatory. Wethtnk there is. little point for p".."nt pu"-7raTl16:The eourt in Rybicki^I recog- poses in ai.rirgri";;g'1':H;?j"i,:;
nized that adjustments or iegistatire Ji:- based on 

"n 
ulti*'ul objective of keepingtricts merely to preserve incumbencies, certain incrmb"ni-nihites in office fromwhere large shifts and *"riprr"Jon;';;: dis*iminatior'1"*"-"r pure raciar animus.cial populations were not evident, would 

- 
We have discussed above several exam-not neeessarily amount to purposefur i".i"r pres of ,r,.- airrri", of minority votingdiscrimination. /d. at r_rrG-ri ,- gi.--s; shength through manipuration of wardBuras a' Richard'sor a91 q 9.31;; ".;, uouna-uJ1. 

" 
Ii*,"." have areged in-86 S'Ct' 12g6, r2g5 n. l-6, 16 Uea.za szd stances.of packing (the ,,wasting,,of 

brack(1966) ("The fact that.district bour;;; votes througt, on-n"."."rry concentration,may have been drawn in a way ,h"r;# supra n_?), in that fourteen of the seve.-
'.rf#'ffi,,X:H":n::.T:l.J,,j:.S.:::*T w!91e ghe minorities consriture an inerrecrive

3o ensurc.'ut-ir "'.Jt""ui.lpi.*;;fil 
political slguplng in each disrrict. s";;i;-'i,;-

elect candidatcs of their.r,.i".l-[.'"-, ili'J"il ll:-":_9, Gingles v. Edmbrcn, sso r^sr;plij.'packing." 
- 
In such cascs, the ;.;;:t;.;;;.:;: 3js. (E.D.t't.c. te84) (rhree-jud e, pu"it),'ipi""i

i'f_i'i,Uilr,1,r*rl';mii::Jt?"x.T y.{";1i:,;i.^Y i..i# iffiijy::; ;:"*,iiiisarily minimizing-minoriiy'effe.ir*..*'i, 
"iil 

R-egeste, selts€ Tay resulr from"rh.-r.o.ir.i,rser orstrtcts. See The L
Righu Act, supra n.;,:l:ilfrr,! ,|,;i.;;;c 

[i".TX_1f*ffi[:TT". l:'.:.';:,i';::]lj:
t' Fracturing is rhe.process bv which a minoriry ldi[fi;:,T:$,;:t[.fli.,!:::::ff,i]il[::':]:;

group which could form " ti.."ur"--E*ir"vi.i effective sirgt.-,n.m-g.-i disrrict 
'otirrg 

nr.rJ,,.one district is split inro two or morJis-tiia" ty,,).

'v.
t"

!.,
'ii'

: ''.H...

'?r,'+

.!'.'^
.-ti.'.ri.

'|ff.

i.: ..'.,

ian"

l?RAbicki I, the three-judge court found



-*trrb- *. -a - tr -qa. .. -.. n'l tt-

rr'('n majority black wards have black popu- and 64.3')I of the total population, respec-
lirtions in excess of 897, while only six tively. Appellants'brief aL2b-26.
nrajority white wards have majorities at Despite these considerable indications of
c()nll)arable levels. Appellants' brief at 31.

There are also allegations of fraeturing of minority voting strength dilution through

the black communities on both the west manipulation' packing and fracturing,

and the South Sides, so that certain black which in Rybicki / were (we think correct'

population, which could have been used to ly) held to constitute intentional racial dis-

form additional black majority wards, was crimination' we think it is unnecessary to

instead split off to form sizeable black mi- make a formal finding that the 1981 City

norities within white majority wards.e Council map constitutes intentional racial

rhe Hispanic communities arso aregedry i':::f,ff$; rfl:lfi :f:""j"'H#3T:fl
were fractured. We, of course, recognize dilution depended ori a determination ofthat the Hispanic population is generally intentional discrimination. As noted previ-
more dispersed than is the black and that it
is therefore usually more difficult to ereate ously' the 1982 amendments t'o the voting

$.ards with a significant Hispanic majority. Rights Act have eliminated the require-

see gerrerally Note, Alternatiue voting ment of intentional discrimination and re-

Systems as Renrcdies for Unlau,ful At- lief can be afforded on the basis of a find-

I)arge Systems, 92 Yam L.J.144,146 n. 16 ing of resultant discrimination' This

(1982). Still, fracturing can, and ostensibly change in the law appears to reflect con-

has, occurred. Appeliants claim that the gressional impatience u'ith the inherently

Northwest Side }iispanic community was speculative process of ascribing purposes

split among six wardi (the 26th, 30th, Sfst, to government actions involving the com-

ll2nd, 33rd and 35th wards) with Hispanie Plex interaction of numerous individuals
populations in these various wards rangin, and conflicting interests. We think it un-
fronr 24.1% tn 57 Sq. On the Southwest desirable to undertake this difficult analy-
Sitie, the Hispanic conrmunity of Pilsen was sis when Congress has rendered it super-
split into two I'ards (the 1st *.ith 30.?% and fluous b1' amending the Voting Rights Act.
the 25th with 52.61; Hispanic population) Congress, in amending the Voting Rights
instead of being left intact, as it might Act, wisely eliminated the elusire and per-
have been, as one ward with an Hispanic haps meaningless issue of governmental
population of 72.9V,. In addition, the Little "purpose" from the caleulus of vote dilu-
Village community, which could have been tion elaims. See also lVajoru. Treen, 574
left entirely within the 22nd Ward *'ith an F.Supp. at 346. There appears to be no
Hispanic population of 78.8'ti, was split be- difference in the praetical result or in the
tween the 12th and 22nd Wards *'ith 327 available remedy regardless of ho*. the

KETCHIIII v. RYRNE
Clre as 74O F2d l39E (198{)

1409

demonstrate the disproportionate effect of frac-
turing on the white, as opposed to black and
Hispanic, population. According to his calcula-
tions, the odds of a black being placed in a
majoritr.white ward were 4.47 times as great as
the odds of a white being placcd in a majority-
black u'ard. If only those wards located along
thc "borders" between rhe u.hite and black com-
munities are considered. thcn blacks in those
wards s'ere 33.67 times as likely to bc placed in
majoritv.u'hite wards. In both situations (be.
cause virtually all Hispanics livc in bordcr ar-
eas), the odds are 88.68 times as great that an
Hispanic would be plact-d in a majority-w,hite
ward as that a u'hite sould bc placed in a
majoritl -Ilispanic ward. Appellants' bricf ar
27-31; Plaintiffs' exhibirs l7l, 172, 193, 199,
205; Tr. 742,779.

li

9. Supra n. 8. Plaintiffs' expert witness, Dr. Ho-
feller, testified at trial as follows:

In the construction of the l98l wards overlay,
. .. there are instances in which the predomi-
nantly white u,ards come in and fracture the
black communities. You see this in Ward 18,
Ward 15, Ward 14, Ward ll, Ward 1, \\'ard 37
and to some extent Ward 42. Nowhere on the
map do you see a compcnsating reach of a
black ward out across the boundan of the
neighborhood into rhe u.hire arcas. In rhis
u,ay there could not help bur be less black
wards created than would be warranted by
the population of rhe black neighborhood.

Tr.92l-22; see also Tr. 235 (testimony of Mar-
tin R. Murphv identifl ing fracturing in the I lrh,
l4th, l8rh, lgth, 37rh and 22nd Wards).

Another plaintiffs' cxperl r.r.itness, Dr. Philip
Hauser, conducted various statistical analyses to



l4l0 7IO r-I]DI'R,TI, RI.]PoRTER. 2d SERIES

;;itry'j:'J:'il[il:iJ;,,:[ilT::ilr*" :#[#,;, j,1,,:,"-,i1,*itv or the voting
issue of a fourteenth ."rJ;r;;;;,il"" enteeni wards, ;^""r1"Tir"lur;**:
:"":fl1f 

tji 
lfjT,j.to." "n"ffi ;ffi"", i,g *" ei,i"",j'iu,h (rr. 4r0?). rhe dis_

those in nrii,i if; here and certain or 
i+ ll":t t:frTf,l::",jil'J*:"::r":t

# gffi lrry,,H*tT",i jilr ;#liT,TRemedy [i"ii{.;:;T!ffiiJ6i:i::d*t3l Having found that the city council the z6th 
"ra-izra w"iJ. ri". airr:,,j,.

f;::;:J fj,"lloT.,l1 
ai.-""iri,"tio,ilni . 

pe.rhaps the most signiricant aspect or

T;gr,,, o",,,n",,,,""1l1ii!:l!.];T: 
$:i:[HTii,fJ ;i*iij:mn*l;*drafting of a new map...rhe ."i;;;; ;;; :lf.::!r_;;"j*r,r"ro, a minority grouothe district court's.rinains:-Ji;,;;d; within a parricurar ward. The rest of anwae the city-wide rerrogreJsion ;";;;; eff.ective ,rro.ity o that-share of the popu-comparison of the ,urb"" ,r Lr"lt l"i lation required L rrri.p"ri" ,"i"rity'"na prurarity wards in ^;" 

y""r1.rr'" ,oir[rll"''e minorities with
rgso ,id";'d"';6r; ,r"o lvith the number their choice ':.".'.",:";/o,fr:;"":.'ff;:;i'; 

'"',

;I{",il:'hiJ"1;;s:llii,n:,1, ri:i{{:tr;i;{tt:!i:f il':i;;z"i{;,i
district court ror *re5lralins 9;,#,* 

"B::liil 
i:;lf :!,;:i!;i# *rrH i:i|::::::,::::::"arirv 

-of 
'";;;'; ga s bt' i,i,'Li"L"na 2d 4s4(rszzf,i--,t

narion is r",,olii.r'ii:,rt^#1."i.'!.1r::H 
i.{:,frr?T;rr.?;!ri{i{ii;a.u.s. _, ro.,xffiil[T'J:*;*N=,1ri:i"l:i]*j ,. Because we do nor decide the question or;::XT, " rifteenrh u-.nd..n1"Jilr",ilri"i. i,,r.nrionri ii*,ji.,i#,.", ir is arso not neccs_

the coun, in addition to srrrh rari-r ^- ,. 
t"o for us to consider rt,. .o.pi.i ;;;#'.i

rrril, ;I#:::.lr[:fi [r# ilfr+]iii"u.,:':r"?;T;.oi; l**,ru
,in:tilirr j:':$j;*r':il?:#"f 

g$iar."g{{#=fffi;:ri:ffivoting differenr from thar i" r"."".* .fii, llthe time the proceedin

,[fr fi :t+."1:]1,;[]-Fiil1tfl ii]rihvi:;n.1ff ;;;r*::r.J,:r:
the right to vore on "j^i.::]'tLot 

ou.iagi,g tactor in the challenced 
""ii,jr, if,.i,if.I.ii

**t',nmlr*,r,m*f n:r'm
n;#"T;l;rff;iiaffi*f3# 

$##.,x#fi13H:;:i:i;:ffi
regardless. oJ whcthcr wc reach thc issuc of rrnlentional discrimination. ou"i",r"ti, ;;;# 12' we note that a rarogression anarysis apphedtutional.analysis would be rcquired if relicf un- to a minority which hai'no prior elected repr+

;u**ff$$ffiifi,tr$ffw
Ld*. 4ir- means ..a majority of the population subsrirrrirj

A1

an

Apt
ead

CN

Io
mt
po
loa
tcn
l€a
,rrr
ta,
lr. {
?J*

* -r





t. Neither rhe School Board nor the City Coun-
cil sought rehearing. .tnstead those defendanti.jointlJ" with the plaintiffs, filed motions re-questing issuance of the mandates, which wegranted. Hence the constltutionality of the
election systerns for the Sehool S""rd.a"d Cliu
Cotrncil is not before us. (fhb CitV of pensaco_
la filed a petirion for wni of ceriioo.ri iO-tfre
Su.preme Court. That petition, ho*.rer, w""
subsequently dismisscd 6n thc City'3 oleyl mG
:r,"I ^ _qi. Ctty of Feniaeola r,. jen*rns, {S3u.s. 946, 102 s.cr. r7, 69 LEd.zd luj:t 098t).

2.. Plaintiffs souSht retief under t}te R.si, Uir-teenth, ,burteenth, and fifteenth amendments
Lo _the Constirution, rhe Civit Rights eci oil9_s7,42-U.S.C. g r97l(a[l). t},e vit 

"s Rigti,
l.j^9{ t96S, as tmended,,n t975, li Ui.C.
,$. 1913._and rhe livil Rrghts Act of 1871, 42u.:.C. S 1983. The drst ict court held that thea.t-rarge system violated plaintiffs' rights underthe fourteenth and fifteenth *"oOiluot 

"rathe^_Voting Rishrs Acr .f teG.lt"U-it.
$ 1973, rvhich was enacted ,o ."rv *i-t'fr-"pyrpg"e of the fifreenth aniendmi:iil.--' It'-raj6ii _

ed plainriffs' t tg7l(a)(t) ctaim Uecause ifratstatute "co$ccrns its€lf only with entitlementto cast one's vote at elections, and such is notpresenrd lri this voting ditution suit ;'- rfi.iriil_
11 ,: f":f-Tlia County. pCA No. 77_O432. stipop at 34 (N-D. Fla. July 10, l9?8). Ihe courtdid nor address plaintifis. clarms based on therlrst and thirteenth amendments.

. The defendanrs appeated the district c.ourt.snoldings undcr the founeenth and fifteenth
c88 F.Zd_!t

bor

arrendments and the Votjng Rights Act. Hav-'ing the benefit of the Supr;me-Court a""i.ion:in Mobile v. Botden, 1146 U.S. SS, tOO S.C;.
t49O, 64 L.Ed.2d 47 (tgSO), see text i*ra-it

. {-5, we rejectcd plaintlffs' fifteenth 
"-"nJ-trent and Voting Rights Act claims in accord-

tnc.e with the Bolden plurality's view that vote-
dilution claims are cognizable onty under the
tourteenth amendment. McMiilan v_ Exambia' fur:r,638 F.2d at 124243 ,n. [S.- Th"
Ldcl8e decidon expresses no view on the appli'cabllity of the fffteenth amendment and Votinp
.Rlghts Act to ctaims of this tlpe, nqgeo ,l' Ldge, -.-. U.S. at 

-: 
n. 6, lO2 S.Ct. at 3226

l. 6, 
"nO 

heace provides no basis for deoartinr:
from the tldd-en plurality's analysis. Congress:
recent amendment to Sectlon 2 of the foting
RiShts Acr of t96S, ,t2 U.S.C. S l9?3, un.o-l
passes a broader range of impediments to mi-
Dorities' participation in the political process
than those to-which the Aolden plurafity sue-
gested the original provislon was iimiteO. Voi-

-.!ne Rlg.lts ei emena4ents of lgE2. pub- -r_ _..- 
Ito- 97:?05, $ a. ezth (ing.,2d sess. (tss2) (to
F^.IqF ar 42 U.s.c. $ 

'iez3), *m"tJlrii
U.S.L.W. 2 (t982); see S. Rep. No 417, g7th

}Ie. 2d sess. z, t6, 28 a go n. 120 (;98t:
U.S. Code Cong. & Admin. News 1982, p. __]'
Ttre anrendment also elimlnates the'Iequire-
firent that plaintiffs demonstrate purposeful
discrimination in the enactment or mainte_
nance-of the challenged voting system oa pru"-
tice. ,Voting Rights Acr Amendments of issz,
Pub. L. No. 97-2OS $ 3; S. Rep. No. 4t?. g7th



962 688 FEDERAL REFORTE& 2d SEBIDS.'

voters in Escambia County and that in elec- relied on a varioty of fectors' including the

tions in which black *iJiaut". had run for adverue effectr of past discrimination by

iir" c"rrtv commission there had been s the srt€ and county governrnents on

;;;;a;"t;"ttern of *"i"iiv polarized vot blacks' exercise of their suffrage rights and

i;;. il;J";"t found that tie at-large syr- participotion in tle 
Solitlcat 

svstem, the un-

,"ii, *"prua with the above factorr, pr+ reeponsiveuess of electcd c-ounty commir-

vented black candidates from attaining a sionere t9 ry ueeda of b]1|:ttrt:'F
majoriry of the. rote+ in the Courdy Com= ..depressed- QAia*gqumlc-1ts!99 of blacks- i9

,,.t"ion'uLtlonr.t H"Jng forna tLt tte the co.nty, tho tenuo,rnese of the ststo

;;;.; system had suci d-iscriminatory ef- policy behind tb".ltT," systen" and other

fect, the district court Lnsidet€d whether ieatures of tbo eleelion system that en'

i;;r;p.." *as dircrimi;;.rr. Although hsDced its disimiuatorv effect In addi-

the eourt found that the at-iarge system tion to tleabol3,eilunot4ntid oc zimmer

had not been enacted for a discriminatory evidencof the distristcourt found that the

;;;nt ;;".l,ra.a ii"t ilt" scheme had County 'r=ft'qd to rubmit to

been maintained for .*h ; purpos€. In votenr 8 Propoe{ rpferendum tlat would

finding intentional discrimioation,ihe oourt ehanp the elctbn 8]r"tet! from at-large to

Cong".2d Sess' 2, t6 & 27-30' Appellees argup

i;'t-f,ir ."ppr*ental brief that we should re
;;;;; irior decisior and affirrn the distrlcr

""u.t'" 
f,oiAittg that they are entitled to (eHef

""J.t ,f* 
fifteenth amendment 8nd the V(iji;

nieh;t e.t, as amended While appelleeshar'e
,ro,rid.a support for the proposition that 

-the
I*"na*"nt'."as intended to apply to pendin8

lii;;;,i"". see 128 Cong. Rec' H3841 (dailv ed
june 23, 1982) (remarks of Rep' Sensenbren-

"".1, lJ. at S7oO5 (dailv ed June 17' 1982)

i;;'i;; Jsen. Kennedv), and have presented

" aog"r, arS,ument tlat the amended Act en'

t,,i.."ii.,"- io relief, we decline Io addresp the

nti".nttt. amendment and Voting Rights Act

;;;;;.' tt," following reassn' As a resull of

Itrir rfUgation' elections for the Escambia Couni

tv cominlisiorr have not been held sincc l9?&

Fr.r r*, to a stay of elections entered by thir
;;;i" 1980' rhi ebctions scheduled for tbat
vear and for 1982 were cancelled' Because tho

i"r- .f office for Escambia County Commis:

ri"r.t s four years, as of November -1982' n9 n€

; ih" acun& Commissioners ' will bc serving

""rr"-, 
to democratic elpction., Appellees

il;;;;rJ this court to dissolve the stav of

"rtiion. 
so that. "normal dernocratic

;-;;;;" mav proceed io,Escarobie Cquntv'

irii"rrgr, upp"-tl""t have briefd t& fifteeFq

amendment and votltrE 4tt\t!,++ lB:u€! 
-4lto

dtscl.rstea the effect of thd ISI stdemdm€nl.on
'ihis case, appeltrents havc not y+ bTn attorglo
oDoortunity to rgspord lognpcltoes' arSurncflL

n&orUingly, we corrld not Gnder a deoialon on

sucb issGs without takirrg; additional ume:to

allow appellanta to respond.8n4 eo::l!iv- li
schcdule oral aryumeni on these qu€$Jon:l-or

ii.=t i"ror.ttio+- See Rules 23(h), 24(e)' lnt-er:

ii nUui of the United States Corirt of ApEF|6
ror dre Eleveorh Circult' 2q.U'S'CAi'(qe!!
suLa l9E2l Rerolution of lhese tssues SUIo
ru"rilt io funher delay end qisruptlgl of me

electorat process in &canbif,'. Co!4ty' .Ygre-
over, ouf decision,of thosa;issyes.'wqud oo(

aftect tlle ourcome of illls case because wc

hoH, Infra,'tiet eppelleer'rrt entltled to rellet
. on thck fqEtttnth'afierdmciS'cl&im' HcnG!'

we defer recohrtion of. the Voting RiShts Act
and fifteenth amendrnent issues urtil a latet
day. The text ofthtt opinion will be devoted to

ari..rs"ltg the"effect af Ldgc on thc four'
teenth-am€ndrEnt standards Sovemins voi6
dilution clairrs and the applicability of such

standards to this case. * Mclntuh County

kanch ot tl:c. NAACP v- City of Darien' 6O5

F2d 7s3.7S o.r €thCir. lgEO), '

3. Altbough thqe, ig oo rfl4iority'vot€ rcquir''
rneot for the gE*."I election, there -ls 

such a

orovision fsr Ue prirnary electioo' Moreover'

it" di"ttict court found that "as a practlcal

. maiter, no ons has in r€cert history won a

;.";;i euction without t mqioritv-" \yM],.l'
7i t. en*,tirCumtY, PCA No' 77-ry32' dtq
oP- d 16 1l{P. Ha-JuV lo. l9?9)'

tlu

distt
Supr

a
4il

,lppBl
tha
eler

the for
ttnde

exr

n8
t

^vcrg -

w
of dr

the d
, not

ol
we'

eourt

Bold,
.o

"root
T

'lack of
"esi of
;ircsol
t:fereats
prefcn

'ilarldn

'quirert
ard ill
datco
{arbd3

aid!.
casl

th
dr(

i:. ro.'r

s,cL
hcld thr
!,8 DOt

s.ct.
n) thr
lors n



063

ln fulden, thf"Supreme C,ourt reversed a

decision of -the former Fifth Circuit that

S6 S.Ct. 'l(XIl, 4? LEd.zd 296 (t975) (per cu'
riam). thc. fornrer fifth Circuit set'forth a list. of
factors rclevant ta the determin?'-.t'r uhcther
multimember or at-large districting rchemes
art *to<rtcd in racial discriminatiorr." ld. *
rl305. ;-rBre Jrtot! meotioned: by. tlto: coun

ess of ibttng canddltas, the rmresponsli'e'
, nesr of l€E8lators !o thair.lorticdlarizcd ia'

. terests, r r€nuous stare p'{icJ underlyinS the
prefarcnce for multi:nrember or atJarge dis-
trictinS, [.J that the existence of past discrim-
inatirin tn gerrerel predludet'the effective par-
ticipation in the clectbn sy$em, . , .. the ex-
istence of large <f,s*ricts, maiority vote re-
quiremeots; anti-sinSre shot voting provisions
and the lrck of .prodston for et-large csndi-
dates .runnlng fronr particular SeoSraPhical

- cubdisrriot+.-j. .. -^ -. Jr.-.-
td. . :r ': :

z At the tinp thc d$rlct court was considering
this case, the Suprerae Court had decided two
cases that forishadowed ttrc holding ln Bolden
that discriminatory intcnt is a rcquired eletnert
of an equal protection based votediltrtion
cleim. ln Washiogton v- Devis, 426 U.S. 229.
96 S.Ct. 2040.48 LEd.2d 597 (1976), the Court
held that e showing of disproportionate irpact
was noi alone sufficient to support a clrirn of

,i'discriminatton .in employment under the fifth
' .alnendorent. lnstead, it held that discriminatG
-ry.purpos€ ls a required elerhent of equal pro
. tgction cl,aims. tn Arlingion Heighcs v. Metro'
Wit,n Housing Corp., 429 U.5.252,97 S.Ct.

'-S66,'50'L.Ed.2d 45O (197/) the Court applied
'the dscrlminatory tntant Gquirement to a four-
'tccnth amcn&nent claim of racially discrimina-
tory zoning. language in both opinions sug-'
gestd the intent requirement is applicable to
other'typcs of.equal protection claims. See
Adtnslon Heights v. Metropolittn Housing
C,otp,429 U.S. at 265, S7 S.Ct. at 5,63: Wash-

' ington v. Davis,426 U.S. at 239-{1, 24+45,91;
S.Ct. ct 2047-4,2O49-5O. The district court
ralied on Aiington Hetgh* and on the former
Fifth Clrcuit decision in Ner?tt r', Sides, 571
F.2d 209 (19?8), in holding that the plaintiffs
.were required to sho\+' discriminatory purpose

'' as well asrdiseriminatory impact- MeMillan v.

fscrrtrbl'a Count:/, PCA No. T7-U32, slip op. at
2?.-23 (N.D. Fla. July 10, 1978).

E.. Soe note 7 6uPra.

A Cornpare Mobile v. Bolden,,+46 U.S. atTl-?4,
lO0 S.Ct. at l5O2 1503 (plurality opinion) *z!h
,d. at 90-92, 100 S.Ct. at l5l2-13 (Stevens, J.
concurring, in result). See also id. at 80, IOO

. S,O. at 1507 (Blackmun, J., concurring in re-



964 683 FEDERAL REPoRTER, 2d SERIES

directive that the zimmer factors, which incentional discrimination issue teft usthe Fifth Circuit had previously established somewhat ..aaifi nn uncharted seas withas indicia of unconstitutional vote{ilution, respTt to how to proceed.- Id. at l2lz
;tr":ff.',,ir:r;t:;,1?:?ff*;?.# {::;Iq rwo'r,a * 

ryy1n,+rs u s lt rfrl
purpos€. ke rwoute v. Bolden,446 U.S. at J00 -S 

Ct at t5l& (\htu: J-, dissenting)).
i3, 

-tm 
S.G. at rsos lpluralitv opinioil.r In the-morc rcctltt decisign "t n"se;';.

As noted above, the district court based 
ladgo; .-..-- u.s. 

-:. 
108_ s.ct. e;72, 7g

its finrling ni iit"it-*"inlyon zimmer fac- !'m'4 -!ols G98sJ, -tk, Suprctn cou.t
tors altho-ugh it also considered the Countv substantially' dsrified the constitutionJ
Commissioriers' refusat ; ;;;i; ;-;h; :$td3q governing voteditution ctaims-
electorate a proposal to change ttre eiecti.il The Lodge opinion, which garner"d a ,n"-
system to a single-member dlstrict ."fr"n,". jority of the Justices,d'reaffirmed the holJ-
\{e interpreted Bolden as holding that the i.lg 9f Bolden that evidenee of purposetut
Zimmer criteria coul<I not adequately sup discrimination is required t" .*t"i". 

"iport a finding of intentional discrimination equal protection. chaltenge to ,n ui".tion
and therefore focused on the latter evidence system-. .Id. at __:_;, IOZ S.Ct. at 8?16.cited by the district.court in reviewing its The majont/r'.n"iy"i, of theltsnda$d;;:finding of intent. After examining the-rec- erning'ihe.iyp€-"oa 

"r*uqt_9f evidenceord, we eoncluded the Commissioners, ac- nece$sry to- sho,r, dt *il;;ry- ffiiltions in rejecting the proposed referendum howevgr, r,eflece beth a urore favorableprovided insufficient evidence of intent to,
rliscriminate against blacke. we noted that 1i1w 

of tb?" ziam,?":too and a greater
the district *-rJ *r" entitled to discreitit 

dcference to the fidhg of 'the dietrict
the Commi*sioners' testim;;, il;h# court than t}re' anafuc&-of the Eoldea phr-
was no racial motivation behind their action rality-

but held that "disbelief of that testimony is Although the district eourt in Lodge hul
lot..t,f-f,_.,-"1t to support a contrary find- relied primarily on the Zimmer factrs. inrn8"' McMillan v, Escambia (,ounty, ffi finding purposgfur .diecrimination, the su-F'u aL 1215, Because,the only other evi. pr"." oou* re;eotea.the argurnent thatdene of intent consietd of ziimerfactory the'' decisioh '' wL 'inrrrn urrder golden.
we revened the district court's finding thst Rarher, tbe court. i;la in"i' ,rr. ;ff;;the cou nty elecrion scheme was beirrg;r8in_ ;;-;;i;;;;,;;;1;;-.;;J:
tained for a discriminatory pr,?o,ol .__ It noted t#t tn"lJt i"t eourt,s decision

:i . IIj. .. ,.! . ,.... had been 'ren<Iered a onsideralle time af-

Etreitor Rogera': il; on our tuision H*f#ilffi,::;,fff*::: -{ief;'That praintiffs Faired to Estabtish un- the"berie.fit ; ly;rdd,];;iili,:u;il:;eons.titutionatity of \an!ia; Couniy aa. d[-,.il. i#6;";n r, apptied ttre dis-. bmmisgion fle<tioa S.ystcm ,' , criminatory intent stsndard o{ the aboveAs we noted in oui'prior opiniorf; tfte glEg to,,a. vor."atfrri;iif';f;.O-*"*';
tuldqn eouit! divgrge.ht analyies, irr".ttii ",{p;pi,l.#qsrr"-,".}Ur";::'US. 

-"i

,tliL,1:. il*Hj,#: ,.99'.,.:,ch.i." f {.1[q. ",ri*riLd',i' z,,"*;-#y*-f Up,ry,,.r: .::i*r..,:i,ri:;; .,,',... .;,,'. SUpr-erUg' Court uote-dituUon casdi and hld
lo: F pluralitg tntc4retn6.zlram;,i" a*r* been oonsidcred ss circurnstantial evidenc! ol.

ln:it"r:],mru :ffi1gffi[ fl1j_-ffiffff *;,. T,It't.!; :.
*:l#ififl:i",H1liff[.:#HH.*'1#,ffiffi l[ mg.mxu's' 

'r'zr- roo $.et'ar lJ02 (prtiiaritv "prniorL' B;;;, #ffiHiil;i;rr.*.otonnod, wrro
. Urrstic" Whirt. ctro ulrs of tlle.vtew',t,,ir..uifr: - Jorn-c+,{hc Cd,fi.CftS$br/was;#cidcd. .nd.'cient evidencrr'pf tf,scrirnlnaory .inrent &s b-il& J,frlfifif;Fi,f;s,"&ed wirtr ee ph,greseatrio-&hn,'pdmed oln fiat'the factoisi tafity,lr,Btr{liDa.-I,;.'--:,.. i. ...:



i', li6trl4lr[..y.'EscalsilA crotrINTYr FLL gffi
CLsatarlI (lE) i 

.

'ud;;, th, #itlt"n v.'.&rrbio ituriy, -ite. No.

v i.ecogrlrtd,tts ffig8,rtip op= at 2?-23(N.D.'Shduly U|"
fumiii rod:hed lim). .iic in ,Iadtq,'fto"dctrictsoud,,lE

t!?c

4mmq fastons rere odt
.xciucire S'if,iit{tc tirt iimptv'cl€re reb' rmrr. Ihe comt.k
vbilt to dg-fraf*i-ur ifi*rlhinatory tn- hfoU=dffi
tent{'"'jtrb :ffbts-t}dit htrdr declined to-'ilis. mgirtsnrnrh df the
hrb ft6'6fifrict l(Sirttinaing that' thc .fie'ffi,,fiffi;
at-largp iiydtrdh h''Dutt" Cormty was behii im
n;intaiireU'fiir'ibq' tn'virliour prpqc ol.d!. ffimEtnfErlr(ru r(r rrlr, urvruruus IruTllE vr.u-. fiIrm ImdtngB under.fDe izfrrm€r ra[f,orE- ,/
luting the votlhgstreagth of thg blad( Potr ncnm*-ffi*U, Ur"ty, rc; Xt

ri.o.'ii,"-i,iy:m,
The court'i opirilon requirui I ry.l"t iymr rJti"i' *evat r. strdeq s?l-'1P.id rt'

toneous?

t2l Inlightof@
$ation of the valfditv of tlre Zimr?er crir+

-ria-as cirncumstantial evidence of intent. we
d-

ing of intent in this case-though based

largely on the Zimmer factors-was not
clearly er?oneous.

The district court found that blacks eon-

stitutE twenty percent of the population

courts tp defer'lo district -u+t' "fachtl' ?Zn). ttre airt"l"t coiirfs considerstion' of '

findings otl; intBft beeafls€ euch findirgs tlie'Commlssionert' respoue to tle eingle.
"repreE€nt [I -;'. a blend 9f lristgv-ana a1 member district proposal of the c]rarter
intenrely local appraisal of tlre deaign aud committees indicatesit"t tt. eourt did not
impact of thd [election syrtem et issue] in vie*, the Zimmer faclors as the exclusive
light of past and prcsent rpality, politicel 

"Jt""i" 
for determining dircriminatory pur-

and otherwige-" rd. al;-*-1-, |@ poae. Rather, the court btfefl€d fron-th€
s:9t: * fla.lqu9ling whita v' fugater' commissioners' action,' toeqthu" r,ith the
4r2 U.S. 755,-7@-70,p3 SCt. 23:12, B4l, 87

L.M.ZI s14 (ryl8)). 
'The Court thus ap aggregate of the finfinp under t'he Zm-

plied the clearly et'one{us standard of Fed. mer factors' t'h't th aLlarSe slntem was

R. civ. P52 tp tlre district court's finding being maintalned lor invklious purpos€E'

of discriminatory intenl rd. (citing Rrl/- se McMillan v' Ewmbia hunty' PCA No'

m a n-sttndard v. sw int,: 
_ y^l -t- ; w2 ll;#T;;: :,r"1;,'i",Ti "*;J,"nij^

S.Ct. 1?81, 72 LEn-u 66 (1982) (applying
Rule 52..to finding of intent in employrneat Roge/s v' Lodge' 

- 
U'S' at 

-' 
102

<trccrimirstion uit)). .S'Ct' slt' 3276' 32?9-80' The district court'!

: ilrggly-qg[lrnce on Zimw-eritaria as cir\;
A. Diit Cou;1-getow Appty CpnpctCon- (@n!ent to-discrimi-/

;it ir*t S;rd^;i-' 
-o' - - 

\@ae-rvhile at odds wit'h our interpretation

tU Applyrns the enatl'ais adopted by of the stEndatd for prorring intent under

lhe Lodgemcioriry to th'rs Lse, *,e considei Bolden' see text supra at 4-5' is fully eon'

first whother tlre-district court applied the sistent with the analysis adopted by a ma-

prcper fourtpanttr amendment standard to jority of the supreme court in I'dge'

appellee's votedilution claim. As we noted Hetce' we conclude the court below applied

in our origioal opinion, Mcl{illan v. E;wm- the eorrect legal standard to this case'

bia bunty,638 F.2d at 12lil, 'lthe distrbt B. Was District Caurl,s Finding of In-
eourt below eomectly antieipated thl! the bntional Discriaioation Ctearty Er-

crig{rEtory intent wqqjr motivating fac.
tedg$ggrylmmt_gf the eystem or is a
motivation in the oresent maintenanee of
tfru.*-mm--

--t----.-_

l9?Q. ."Ar in,Iadge,'r.ho "&trict Soud,,lE
tEr eese,hld tI€ benc{it ?f .ffieiett'r. 8de4':

muat be -rnct" --.Indeod,'
the distriet oult*Expressly neoognired thet

[a]n at-large election system which op'
erates to dilute the vote of blrck citizens
is not necesEsrily violative of the Consti-
tution. IL mgst also be lhoyn that dis-



:+:i!- +:fr'rf:ffi,' :t 
the registercd vot- supreme court has consistentry maintainedeitizens t"J'.##f tt Although black th"t o.irilfil;: voting and inabiritvr",;-;;;*,';ffi?,Il.9r"tr;.#H: .r " ;ilJ,i;ffi to obtain regierativlwon an eleetion. None of th" bl;;; ;; sears jn proportion to."n was able to obtaii the ,":".irili"J# *. :ot *ron" .rrt"i"#;"Hr""Iff*,'

neeesssry to win rhe Dqrnoeiati" p;,r;;: multimember or aLlarrTk d r*,#'ir,ll=r".u"r, oiii".*J'irn i, b";;"r;tirr,Iffi;cilTffi,X#

rlffij'+l*-1{i-fftr";,rJitr:il[f,d;H'ffi rywhite for counrywide orrice, a-co"n:i#; L3.2a ,il' riiriti""nn,tqmb v, chavis.,ma;ority or the whires *r,o ,ot" *iffi;- * yj al, i;;jt, rl r.". 1888, tsz2, zs
il{":illri:f,"lT#,"'f;I*rffil';it?",$ji,ilf '*reognizedthrt

688 FEDERAI REPOBTER, 2d SERTES

ll""il'ff1;t:l* rt,6 fi'il'll} ffi;L"il'.ff;*.ti*fl ilI jqli["* lr ,,1

.;ontv of votes in rhe county. Ail;;;; #tr: - 
IJs-.i-f-*-n rp S.ct-,,i

,1.;l*.:l jITI,it which renects the per-
:;: S"- i::,:lation in the vote arrriburable to

966

l,lf,.r":,:1,:n:-."g**J-ro,ers in the races in
)In,:l o,i:I...*aa,,""-""i1',iil#.r,;;:;l
'i^? l::"!: u 

. x"iiai"3}",#1.7
I?_I #:r,lto."a,* ^ i[6. ?H"?;,r'YiI978)- The ai.,iili..ri,:. rr!'v' rrir. Jurv IO'
"acrallv ,-l.d-r ..^.: . ttrldings conceming
:il'Jf::"T,::3.a,IT,, i. x."?" oll"L'J,l?f
:H"",,:.j" if J1 ^r_.Th 

; i,,il;;";; ;"rH?;
Hy:?,,Y: Y! ? " -''. 

en u i oi)' ;;;";;-d;tF.2d at t24t,{2 n. 6.

: :d,!ffi1iff;.H"t"its;?.:l'"'#rprise onl-v 23/o ot th
1ir5 .esjiter;" ;d;: TtHi:;l;:' 3ln,f\+,hereas they made ut

i1,8:iq,i;5rr,$:.pj+id:.,..Tf :Irupreme Coun,s asrs".e bracks' ril;t ;;ffiL il*?ffJ,irjurke County had tl
.rong,""i J iri"i'ili"futilif ,,il,,"T.lH,bia Counry, r+hert btacki 

"_,"i,"i" ""ri " 
ili_nority of the countfs

p r.;, " ;i;;ffix 
[:.if#"H*t :*T::l,i:!l Jr iXil};n. ,,,nority candidaies

Xl:,9 r:-, Iose.eteetiins *roly a.&*]il;:;

*,**"*,nfil#.,:ffi i#:'f ,

sponding rqughty to the r.specuve percenraqeiffi ry:iFlr
ffi,Ts,fi*r*ffi*;ffi #;i;#lff lttlt.coUa result in 4 t-^,", pf.;;#?
ffilt33x,HK##mir;

ffilHffiI+ffi#IH

ffi #,.T#"#.'#tr'ff...ffi"'#f; Xrzed voting-

18- The district court noted that li the one. countywide elcction in-which.a ul""i."rnOtal.tlran unoppose4 i,c the j

i**jr#I*#r":ril:rri*frfrr
ffiT,'iT, ifi"'r5|:[,.3,,,r,. co.its di""i

i:it'*:di;:*'"T]ffi"ff :r'"7cambi'a Co.rnt-r,, pCA I
r r r.,ro, i-r'i.' ;;rlr)i;#;Trr;::XJ:,#
nepubtican candidate recejved Zz,ilCril! a'I
:111:^" torat Repubtrc"n r"gi"ti"il;T;:
:9t-l.y of.only 7,268; wnereas ig a pri,qr elec-rton in rtlich the same n"pofirc"J.fra.rr
i#ffi ,:L' " 

permcrsr, r,.i^o'irIli.ia' 
"'"li

' ",fi ll",|"Ti"'nTi"," ;,* r*,,*l
l? lgn:* brack interese wirhout i.;-oGlii;I"
ffi 

';",tr#:m;,e"lll*llfi"i*,,il 
t?,." ut?n6 p-lely bL,causc of t&eir ,""u.- 

"S';,."1-. 
,fu{l:'fffi:i

gfrFTiH:f #,try:1.!;.,$ElC
I:l
.,,{
.1.. '

i ;i



:.::: ,: tclgl.riAltgffffi$,,9f*,!+ 
,, - , ..,-. itE?

:.;As in-*,r}fiB,ttle{Hluidrorirt'5elow etro '&IerBh vottng'*rii'ir6t*Utri fri:Ui$1f&rt r' ..rctlsi*rU the irped, of paet air*ri*n*ein U{q'#\rtrst ,to$ lot fi:ir.,, li:,o':1tffi'f*'1:d - ,jr'{:

on'fiq tbilitytif tlgclta ti p"rliElprt"t:,i th. . ;dnh" dtot"i{iGouliCouna urat ttr$ti'$'l'',liy:j,..:
political prccu$ 'It found thst tlE Ocrlnty i-h6i50r..stry is&rtiryrocganinfionrrlhd'{Q ".v.i,1.. '.
'Commirrio:r ind Scb@l ry"q "t"fPn.sys- ,rantblects fiotraarticipatturg i*tbr_ire ':."-'.
tenig'frdltielr;gpppais in tfte-fiids+ i* a ,Fon of -Codot$ Coryrnrirjounrs,,6,:1f,tEd ". .,,::;:t ,

concertcil 'pteta eilort to irxtltutiomlize .bpedimqate to blsckr'qirtrstbn rrdryo& , ,i-',

white qupremacy.'. Nc.Millanv. traca',,Air ,iA. Ib@qrt.fqnnd''lotigDific#tdif{s- ..
fuunty, ?GA No. ts-{4sZ, fip q. et I onqe"cl@Uyurietingbstrvecn.Haoktttd '
(N.D.:$la July.i0 i9?8). klor !i 1901, .ldte. yo6r.,rWist"utiou-., Jd at 6.rNonqr
County Commiasionen were epointeil ,by ti"l"qS, it,eonduded tbat 1otlrer,bamioil
the governor, and the otrrt fourd that {gP 

. r;.;. effectively:opcrSte to:pleclude.togs
p.i"ir*it *r" r"**a over election to 6- i-.U""r,".': Th""q,il dt4ri.ee qoc"bt"*t ' '
aure against the posaibility tbat blacla inability of blacks to win electiour fed "might be electpd iu majority black coun- ;fOOO titing fee required of candidatcs for
$es." , d. ,rn f889, Florkla in-Ututcd a poll 'Gounty Commission as facton that had di8-

tax to direnfranchise bluks. The court couraged blacks from running, with the re-

found thet although the tax was of limit€d pult that the number of blackr seeking

luccgsl, i.enough blacks *rere disenfran- 'ounQnride office in rccent years var rfar

chis€d to, permit the state to allos at-large l,ower than one would erpect !q or their

electionoicountyeommissionei&" Id.ttl. p€rEntagp of the pop.,9q"." -Id at 1O'

The court found that enactnlent of Jim Indee4 tbe court found'ttat because of

Crcw laws Bnd exclusion of blacks fitm the theqd impediments no blacks had mn for
Democratic Party, @inning in 19(X), fur- County C,ommission since 1970. ,Id
ther impeded black participation in the elec- As additional evidence of exclusion of
toral prncess. ln 19O7, Flori<la enacted a blacks from the political pxr@Es, the district
Iaw providiug for pnmary el'ections of court noted that state-enfor.ced segregation
County Commiesionera in which candidates has created two separate societies in Es-
were elected from single-member districts. cambia C,ounty. Churches, clubs, neighbor-
1907 Fta- laws, clr- 5697, S 1. Tbe district boods, aad until recently, echoola in the
court found that tlre anomaly betwceu the Gounty have remained aegegatcd by race.

white, districted pnmaty elections and tbe The court found that this 'continued seps-

atJarge pneral el*tions uniquely tlisad- ration [of blacks] from the dominant *'hite
vantaged blacks: 'Since blacks could not rociety" not, only has "left blacks in an
vote in t}e Derrocratic Primary district inferior social and economic position, with
elections, they vere foreed to challenge generally inferior educstion," but has also
white Democratic uominees in at-large eloc- 'help€d reduce black voting atrength and

tione in rryhich blacks had no voter mrjori- participation in government." Id. at 17.

ties. Jn effect, the white prirnary was the Specifically, the court found that the segre-

election." . llcUillan v. F-qambia hunty, gati,on of black and white citizeru had

PCA No. n-U32, slip op. at 5 (N.D. Fla. helped croate bloc voting and rneulted in
July 10, 19?8). The Florida Supreme Court iltritE cirndidates' failurc to anruse tnterwt*_
invalUatea this dual system in l9{5, and among blEcks lt and in city and county gw-

Firully, we emphasize our understandirg of proc€sses and to elect candidates of their
the limited role of evidence of racially polarized choice." Id
voting and lack of success by minority candi- I ,
datesl Such facrs ere reflecti,re of the dilutive tE- The court foun'd that black voters have

effect of an election system and, circumstan- shown a consistetrt, nearly unanimous prefer'
tiall5', of intenr to cause that eflect. They are ence for black candidates in races in which
"insufficient rn themselves to prove purposeful blacks have run. Mclllillan v. Escambia Coun'
discrimination," hoB,ever, "absent other evi- ty, PCA No.77-O432, slipop. at 13,20-22 (N.D.

dence such as pr<xrf thar blacks have lees op Fla Jul;- 10, 1978). Although white candidates
ponunity to panicrpate in the politjcal ectively seek the votes of blacks, studies of



968 688 FEDERAL REI,IORTER, 2d SERIBS

erning bodies' failure to appoint blacks to
governmental advisory committeer 8nd
boards.lc

The district court found the policy b€hid
the at-large system for electing County
Commissioners tenuous. It noted that el-
though the et-large system h8d beerl in
effect for the general election since 1g01,
during moet of that period a singledistriet
systern waa employed in the Democratic
primaries, which were then tantamount to
election.l, Henoe despite the state eonstitu-
tional requirement of at-larye eleetions, the
effect of this dual election system ** .,p

voter turnouB indicated that when whites run
against whites black voter turnout is signifi-
cantly lower than when black candldates- run
for ofllce, Id. at t3 & n.. 4, lS. .fhese 

facrg
indicato that. "blac.ks view the choice of whitc
candi&rcs as irrelel'ant to their interests.', Id,
at li

16. Alt"hough. the court found that the commi$
sioners had generally been responsive !o the
interests of black citizens. it noted txro areas in
which they had not. tt found that ..[t]he com_
missioners have failed to appoint iny aor.
than a token number of blacki to its iommit-
tees and board!. The black population repre
sentirry 20% ot the counry is thus servod by.an

.all-whitC board of commissioneB wbieh d6L
pen+ 

-9n -ytrlaXy (959[) aI-white advisory
pan€{s." McMilbn v. Esambia County, rcL,
[q-u-!eZ, slip op. at ts (N.D. Fr8. ju[y: rq
lS78). Tbe coun found tlre ,.severe unde-rnf
res.ent[auon]" of blacks on county cornnitteeg'"h4s independent significance tria,'.e of tl6
absence or nsar abserrce of blacle in etccted
positioru. With such a paucity of black elected
and appointcd r€pres€ntatives, blacks ar8 axp
cluded from all positioDs of responsibiliry in'thi
govemm€maj pobcymating machlnery.- Id. at21. ThG court notcd rhe former ctty rrutJiofs

ensure that commissioners werr electcd
fmm single-member districts." ,6. 

^, 24.tt
Several County C,ommigsioners explained
the policy behind maintaining the at_larqe
systenr ar rootcd in the belief that sufh
aystem mado each Commisoioner responsive
to the needs of tlp whole eommunity rather
than to a particular district. The-district
court found thia explanation inconsistent
',r,ith the present operatiou of the Commis_
sion, however. In particula,r, the court not
ed that "the residence district of each com_
missioner is more or less regarded as the
district bf that commissioner for which he
has responsibility and t3f qhT needs he is

gue thet.the dlstriot cirun,r indlng that white
candidates io Escambie €ouoty actively seek
the vat€s of black citizenr precludes u iindingif dscriminatory interrt.'' tie .aar*r"a ir,.ll
argurrents lh our rftlnal opkdon, McMillan v.
*canzbia County, 633 F.2d at 1248_49. and
concluded that or.ce discrirninatory intent has'been 

shown responsiveness is irreievant. Th;
Fifth'Clrcuit panel In rhe LdEe case subse-
quentty reached thc eposlte conclusion, hold-
ing that proof of unresponriveness is an esscn_
tial element of a fourteenth amendment vot€_
dilutioo claiin. L@e v. Burton, 639 f.rd
1358, 1374-75 (sth Ctr. lggl). The Supreme
Coort.rcaolved thcisire in lts oplnion in tdga
It h€ld that unresponrlveDesr, while an impc-

. tant -tactor to be considered in determining
whether discriminatoty purposc may bc in-
ferre4 is not essential !o provc such purposc.

- Rqgunr,'v- Lodgca * U.S. rt -..- n. g, fOZ
.,SCt au328o n. 9, te view of the Suprerrr
. $ourt's holding. we do not consider the disrrica

court's flnding that Escambta County Commis-
sionerswere resporsivc to black citizenc needs
in'most areas conclusivG,o[ thG. question of
discrirniutory kltent. .a, .-:. 

.



.[cl@i[4N y,. S800ilBtrAr gOU!Ey,'m.A-
' Gllr.tElcl' $B IQ

tle partieda*r&# on tbrlcgpmlin'l
.trd. at 80,! .,' :; i 

".r1, 
aiilel :...:+nr tO[* lut^f,t-".",tr,

,. Finatly, tltb, dittfid eotrrt.tr,u*Ua:.*e
sodlled'lcnhenciq'.truDi!!' "ffil,.Ure
-6urts harrctpeogrked r**iladag.r'tbe
tendency d rmdtirncmber*i+kfBd€$,
tion. .aystem.I,tst :'dihte,,'bhd.i'' .toHtB
rtr.eagth. r. 8ae Jlqar re lrrl3ur,+;: U.$u rt

-,, 
192 I;.Ct,' uf,l;., ?im,Er,/j tt tltrcCfddb-

:or, .485,f.2d at'ltXF., rllt*r loo6.,rou!t
found that the ,lqg€ populrtion rand geo
graphical dze of. the.county,,t&e maffiy-
vote requirement for the primary election,
and the rcquirenreat that, apndidatea run
for numberrcd placqrr enhanced ."tlre prob,
lems faced by blackr seeking acoess to the
political pruceseed." 'fidcMiltan v. Ewmbia
C,ounty, FCA No.'71-O{&, elip gp. st 18, 19
(N.D. Fla JuIy 10, 1Y19). . 

',1- ,'. 
,.,

On the basig of the dbove findiryn, tlre
districtourtconcluded: t-,,

?o this court the reasonable inference
to be drawn from [the Crcmmissioners']
actions in retaining atJarge districts is
that they werr motiveted, at least in
psrt by the poosibility ringle district elec-
tions might result in one or rnore of them
being displaced in subseguent electiono by
blacks.

This conclusion is blster€d by the find-
ings urder Lhe Zimmer feeton that btack
voting preferencet for blaeks cannot be

t0. Appellants rss€rted in the tdal court thst
the Commissiooers' rejection of the single-
member dlstrict proposal reflectcd a desire to
maintain their own incumbency. We stat€d in
our original opinion that a motive to exclude all
other potential candidates could not, absent
other evidence, be equated witi a desir€ t9
exclude blacks in psrticular. fu McMilltn v,
Escambia County,63E F.2d et l2.lS. Of courue,
neither can incumbent legislators. desire to re-
main ln office justify or legtirnate an election
theme thar is lurposetully discriminatory.
Cf. Rogers v. Lodge, 

- 
U.S. at _._., 102 S.Ct.

at 3287 (Stevens, J., c.oncurring) (features of
election system that dilute minority voting
power are invahd if only purpose they serve is
to perpeturte pourer of entrenched majority).
In reversing our prior decision and affirming
the district court's finding of intent we do noi
depart from our prior conclusion that d€sire to
main[ain incumbency does not equal racially.
discrim.instory inteni. Our affirmance simpl!.
reflects consideratton of a broader ,*g"-of
evidence than we previously unclerstood could

$;{g':,4p;Ierq4t :,sIpqBrI . ir{t
+sadiilihrrrotlr:rfto denied,ec.

rsffi'f+ftrQ$c4. ti.t.,it11,1: +. -'i; " ..a-r
'fi. at'8L.,ifu riiirftre{r tte.'reora tu[y
<*pdrdrnrdatr mrtfu-rabridiary fi nd-
-:ilg;.--{ft* oodrt rl6d oa -tlc rgregte d
tthscs lindingc,{nw}virry Zinmw frctors
rud ot&€r evidtimB in deteunining thst t}re
.st-largp rystem ln Bca,rsbis Couoty h b+
.{hg nsiiltained fa discriminatory purpoeti
'fpplyrag tte', starderd enuneiated by tle
:.Supatme Corrrt.in 'L$ge, we catriot aay the

li"tri"n @ur.t'g finding of intent rras clcarty
grttDeous. ''.,:'. ,. : .' -,

' ,IfI.

".: . ,Vfidfu ol tumdy hwritrd.'bt ,-
.,.i ',. :. Disffi fulrtt fi"r,ing invalidatAl the election sysLem
for tlre Escambia Counf Commission, the
district judge ordered the parties to submit
p,ropooals for e reilredy to rectify the congti-
tutional defect. The defendant4ounty
Commissioners submitt€d a plan, which
they had adopted by ondinance, providing
for a mixed single-member district and at-
large scheme.,I A propmal for a new char-
'ter govemment under which Commissioners
would be elected by a eystem similar to that
proposed by defendant-Commissioners!
bas then pending eubmission to t}e voters

be used to support a finding of discrirninstory
purpose. S6e te:tt supra at 963-965.

20. The court for.rnd that this r€quirement had
the cffec-t "that blacks are always pitted in
beadon-head ra.rq wilh white crndidates, and
tbat lhe black comrnunity cannot concentrate
its votes in a large field of candidates." McMit-
-lan v. Fsambia bnty, pCA No. 77--U32, elip
qp. at !8 (N.D. Fla. Jdy tO. 1978).

ll. Dafendanrs'propqsal would establish a sev-
en-member Board of County Commissioners
with five C,ommrssiqrers to be elected from
single.member districts and two to b€ elected
by the voters of th€ county at large.

22. Tb€ difference bet*'een the Commissioners'
proposal and the ballot proposition was that
the former included an apportionment plan
whereas the latter cntrusted the establishment
of distnct boundanes to a reapponionment
comrrussion



NEYETT v. SIDES
Ctt r3t?lf:aZOt (lt7t)

209

r claim
:Em 8s

.ld not

ici oP
rrs, in-
)ei'3tr!
tvhrtnn

t)i'l lhll
'cafi.. "
i. l;n:1 .

s.::r:l:
'i : r.:.

a' i, -: '-

i4 lLri

:i,.:'o, l]

tisi::ic'i

I'el: irs

]RTi,.

inter-
in r.n

wners
been

. The
iel of
naril.r,
Com-
Ed.2d
lelow,

tu7'lp*"a8rguesthatthiscaseiscon.tationirort.beeofanyotherargument
trolled by Keaty ".6't 

io!onel!a'.In.c'' advanced by Zapata prevented the district

503F.2d955(5Cir.l9?4),whichheldthat.a@urt'sdismissal.Wefindnoerlorinthat
clause directing that t#;;i;t'rytJ-1ob @urt'8 opinion and drder that it be AF-

;;a; iie juti*ai"tlon of the court of New FIRMED'

iorL" *r, not a mandatory forum selection

J"rr.. Keaty, however, tcaches snother 
-rilr-

p"in"ipt" whic-h is equslly forceful as a rule q 5'I@
of inLrpretation-that when a contract \L.r -

provision is subject to opposing, yet reason-

.bl" int 
"pt"tation, 

an interpretation is prc-

ferred which operates mor€ strongly Revertnd Cherlee II. NEVETT et al.. lndi'
against the party from whom the words viduelly and on behalf of all others simi'

proceeded' Iit' at951' brly situtted' Pleintiffe'Appellrnts'

i2l The district court found as a fact Y'

f;L'i' ffi:HJ,ffl#, fi:t,I",.l[:: I.rrrence G. 
'IDES, 

Individuarr' end in

ous. zapata not onrv P;;'Jthe forumin |il:H'X,TJ"ffi"::":'J:fi'*tfi3.
u-.t-nity-*orded. telegram following the -""e er -- 

;^ 
-;

,* 
"""iru"t, 

but it tfrereafter instigated No. 76-2951.

litigation in the London courts' Now Zapa- United Stat€s Court of Appeals.

L it"i*. that it did not regard that juris- Fifth Circuit.
diction as exclusive nor could FINNTRAD-

ER'S owners have so regarded it' We disa- March 29' 19?8'

gree. Whether we view this case from the Rehearing and Rehearing En Ban'-:

iantage point of traditional contract analy- Denied May 25, 19?8'

sis or-from that of the purpose of forum

selection clauses generally' we reach the Black rcsidents of Fairfiekl' Al:;lt:'r:ir

same result' with respect to contract anal- brought suit challenging the conslili'iii'r':rli-

ysis, even if we were to assume lhalT'zwja ty oi munieipal election systc:1l p::'illiirrg

meant for its telegram to convey a proposal for at-large selection of '"he c:'-"' cou:'cil

for non-exclusive jurisdiction, we have no pr"esident and councilnten. Thr' L-Il:"c'l

,u*on to believe it'"t FINNI'INES either bt"t"t Ditttict court for the Norliir:rr' f)rs-

knew or had reason to know of that mean- kict of Alabama' at Birmingham' llam {'l'

i"*. s"" s A,' Corbin, Contracts S 537 Pointer, Jr" J'' entered a judgrnent fri''n

iiilOOl.- Wirf, regard to the forum selection which all parties appealed. The. Court oi

problem, we note that FINNTRADER'S Appeals' 533 F'2d 1361' vacated and re-

i*n"r, iua t*o choices when they received ,"na"a for failure t'o appll' proirerll 
-the

uj,ro," telegram. They could either con- voting dilution standards set forth in zint-

;; ; nngtist' jurisdiction or ehance that mer' upon remand' the District (lourl en-

one of the-ir shlps would be arrested in tered judgment for defendants' and plain-

other, wholly fortuitous jurisdiction' In ei' tiffs alpeatea' The Court of Appeais' Tjof-

ther cas€ unless Zapata is held to its own lat, Circuit Judge' held that: (1) a showing

setection of a forum, any choice it held out of racially motivated discrimination is a

to FINNLINES is wholiy illusory' necessary element in an equal protection

we need not decide whether the princi- voting dilution claim; (2) illicit motivation

ples enunciated by ;;" s;;;." coul ii is also a prcrequisite to a siucccsrrfui ciainj

M/S BREMEN, ,rpo,-"""'"lptiouto in utt under the Fifteenth Amendment; (3) the

post-accident n"goti;;r. 
'We hold only lower court's factual determinations under

that on the facts 
"na-"ir"u*rt"nces 

of this Zimmer, viz., that blacks were not denied

case neither principles of contract interprc- aocess to tlre electoral prcc€e3es, that city



210

officisls, were not unr€sponsive to. the

;'Jft utact resiaent"' "-1d 
th*-!t:l:

;;; Precluded frPm effective Partrcr-

Iaffi1; [,"-ur*tion svstem-bv anv past

liscrimination' u/ene not clearly ernoneous'

onrl (4) the exist€nce of a tcnuous stat€

ilil.r-'u"r,i'd atJarge districting' even

['t "i 
""nh"nced" by [*o ot possiblv tlfe

;i;" lt*i""" facton delineated in Zim'

;";:';'"; itsufficient in the aggrcgate to

;sLLI"h a case of voting dilution'

Affirmed'

Wisdom, Circuit Judge' filed a specially

concurring oPinion'

l. IttuniciPel CorPorations €=80

lssue in a typical reapportionment case

i. *i",i"t"p"puiation deviations from the

ur"."g" aitirict are impermissibly large;

ii"'""'ip"titon is one based purely 9l rypl-
i"it"" i'l*t"s, and no showing of discrimi-

;;;i;;';';a racial' ethnic' or political lines

need be shown'

2. Congtitutional Lrr c=?25'3(l)

A case alleging violation of the one

*"*-r,l.n" ,"t"iuia"ta' based solely on a

mathematieal analysts' may properly 
-be

*i,"0 
""" ;orantitative" reapportionment

cas€.

3. lltunictPal CorPoretions €-80

That an apportionment scheme satisfies

the quantitatG standard does not- insure

;;J;;; ;ll the aspects of political repre'

sentation.

5?T FEDERAL REFORTER' 2d SEHES

uniclPd Cotaorationr c=tO

"Qualitative" reapportionry-1t--.-ff-

"* th:;";;"i'to"ot'i*t T P"Plllg;
're 'Irw ut on thC qualitY of
based aPPortionment bt

t B1*Se3s cal2-- -Tbe 
issue in voting dilution cases is not

whether a given group elects- a mlnrmum

number of candidates' and the standams

;; aiir"t"nt when the interest binding

the grouP is one of race'

7. g1*1iqm €12-- -It is not enough that a racial group

"fr"e;ly 
discrimina-t€d T"intt by at--1.1T:

ii.ii"ii'"g has not had legislative seats rn

;;;# b its voting Potential: rather' in

lf,"'"Uu.n"" of evidence that the at-targe

;;;;;- themselves were conceived or oP-

:;;;; PurPoseful devices to further ra-

.i"iai..Arination, the inquiry becomes one

ft;;;;i;ing whether the influence of a

il;;;i frouP has been distorted be-

:;; * ;;ibu" h"'" been tlenied equal

;; ; Political Processes such as PartY

;;;;";id Procedures' rcgistration' and

voting.

8. Constitutional l.lw e:215* - 
fn"r" official action is racially neutral

on it, i""", courts must adhere to the basic

;uJ;;;;;,ion PrinciPle that the invidious

il;tr;;;; i"""'t"i'La to be racialll dis'

]iiii",o"v must ultimately be traced to a

raciallY discriminatory PurPose'

9. Conetitutional Law e=215

Intent is a prcrequisite of universal

aoolicability to Fourteenth Amendmenr

:fi;;;";""ial discrimination' L"s'C'A'

ConsL Amend' 14'

,0. B1."1ieng €al2
A showing of intent is a necessary ele-

."ni-in a case alleging a racial gerrymsn-

der.

ll. Congtitutlonal Law c=2153

That a dist'ricting scheme ie motivatrd

by ,;;i;i*rtiJ"*tr'" does not necessarilv

rcnder it subffi to rnvalidation unde-r the

il;' ;;;1il clause' u's'c'A'const'

Amend. 14.

1a g1.j1i6ns c=12'- 
e-ai.t,A.ting body may properly TT

,ia", o"" if thJplan does not slur or sttg-

#ir* *, tL ana does not fence out a

racial group from participation in political

s
!l
c

I

,!.

,*

I
I

I

rcpresentation'"

5. Electlone c-lil
- -tt" 

Constitution does not demand that

"""U'*gni*ble 
element of a constituency

;il ;;ntatives'LIf#ft,I, I
voting strength; even

;;:r;. o-ndid"to, standing alone' doee

;;-";; constitutional bounds'



NUYEIT v. gIDEg
CL..t7t Fr.lI (lt l)

ztt

not
um
rds
ing

0up
IEE
lin
iin
rge
oP
r8-

pr"occss€s or minimize or unfairly cancel out

such a gloup's voting stnength. U.S'C.A.

Const Amend. ld
fl icdonr eU

Ahhough a benign districting plan,

rhi:h is d€.i$ted to remedy the underrep
rcaentetion of a ncial minority group, ir
permissible under tle C.onstitution, a st8t€
or locality is under no obligation to provide

miaorities, rzcial or othervire, with reple'
rentetion proportionatc to their voting pow'

er. U.S.C-A'Congr Amend. 14.

It. Conrtiffiiond lrr e215.3
A showing of racially motivated dis-

crimination is a necess8rA element in an

equal protection voting dilution claim. U.S.

C*{.Const. Amend- 14.

!)' Elcctionr el2
At large elections ere not unconstitu-

tiond merely because fewer minority candi-
datea ere elected, due to polarired voting,
t}an rould orreapond to the minorityb

,t. g-5onr el2
Yhene evidence of dircrimiortory in-

tcnt b lacking in the enecting procercern the
crit€rb of Zimaer, in which the F-ifllr Cir-
cuit enuncistcd a set of factorg tlrat when
estsblisM in the aggregate, are probative
of unconstitutional voting dilution, become

acutely relevant; they may demonstrste
that the neutrd diatricting plan ia in fact
an "i[strumentality for carrying fcrrard
pett€rns of purposeful and intentional dis-
criminetion." U.S.Cl.ConsL Amed. I'1.

one
lfa
be-

lual
artl'
and

rtral
nsic
lious
dis-
toa

erssl
nent
,C.A.

, ele-
man-

rated
nrily
r the
)onst.

oon-
stig-

out a,
litic8l

voting dilution case to a successful claim plan, which was adopted without racial mo-

under the Fifteen$ Amendment. U.S.C.A. tivations, is maintsined with the purpoee of
C,onst. Amend. 15. excluding minority input, the necessary dir

16. Elections c-Ul criminatory intent is established end the

Fifteenth Amendment protects the *lJrunconstitutional' 
u's'c'A'consL

rights of blacks to participate at all levels /7;;- - -

oi tt" political p-."* and interdiets 8ll G!'lcctione e12
methodg demonstrably contrived to dimin- When bloc voting has been demonstrat

ish this participation. U.S.C.A.Const. ed, a chowing under Zimmer that the gov-

Amend. 15. erning body is unrcsponsive to rninority

r?. Erections erj2 1,ffi:iJ,T,Lt'",*ff:":ffi1il';',f,1:
A ahowing of rzcially motivated officiel and t;e tifetitrooa of an intentional exploi-

action that infringes the right to vote is tation is ,,enhanced" by the existence of
sufficient to state a cause of action under systemic devices such as a majority vote
the Fifteenth Amendment. U.S.C.A.Const. rcquircment, an antisingle shot provision,
Amend. 15. and the lack of a rcquircment that repre.

It. Elcctlons clz sentstives rtaide in suMistricts'

An electoral plen, racidly neutral at its
adoption, may firrther pr=existing intcn-
tional discriminati@ or may be maintrined
for invidious purpoles.

-OBhctionr 
el2

If,hethcr invidious discrimination moti-
vetes the adoptioa or maintenance of a
dirtricting achemc or whether the plen fur-
tlers pt?eriEting puryooeful diacrimination,
the intent requirement may be satisfied by

21. Elccdonr el2
If elected reptwntatives are unns.

rponsive to t.he needs of a racid group
apparently becauee Eome stages of tlp elec-
toral pmcess diminish the group'r input, the
infercnoe that Oe prrcesses ene meinteined
sith the purpce to discriminate cen lairly

clrgl
drewn.

pohcy in fevor d at



212

fe,.'
6.:t'.
i#
.t.

that other, improper motivstions lay behind
the enactment or maintenance of the dis-
tricting plan.

2& Municipll Corporations eg6
Although state statutes generally need

satisfy only minimum rationality require.
ments, the weight of the state policy behind
an atJarge districting plan is an evidentiary
consideration that must be considercd along
with all other relevant evidence to deter_
mine whether the plan is improperly moti-
vaied. Code of AIa., Tit. il7, g a26; U.S.C.
A.Const. Amend. 14.

27. Electione e l2
That the ffi.der of fact determines the

plaintiff has prevailed under one or even
several of the Zimmer critrria may not es_
tablish the existence of intr:ntional discrimi-
nation in the enactment of an at-large dis-
tricting plan; the evidence under the other
criteria may weigh so heavily in favor of
the defendant that the evidence as a whole
will not bear an infercnce of invidious dis-
crimination. U.S.C.A.Const. Amend. 14.

28. Electionr F 12

A finding of voting dilution under Zim-
mer raises an inference of intentional dis-
crimination in the enactment of an at-large
districting plan.

29. Federd Courts c855
In suit brought by hlack residents of

Fairfield, Alabama, challenging the consti-
tutionality of municipal election system
providing for atJarge selection of the city
council pr.esident and councilmen, the dis-
trict court's determinations under the Zim-
mer critrlria would stand, if supported by
sufficieat evidence, ualess clearly errone
ous. Fed.Rulea Civ.h,oc. nrle S{a), 28 U.S.
c-a.

$. Conatituti,ond lrr c>2l5.3
Uhimate issue in a case alleging uneon-

stitutional dilution of the votcs of a racial
group is whether the districting plan under
attack exists because it was intended to
diminigh or dilute the political efficacy of
that group. U.S.C.A.C,onsL Amend. 14.

57I FEDERAL REFORTER. 2d SEBIES

31. Federrl Courts 685s
In suit brought by black residents of

Fairfield, Alabama, challenging the consti_
tutionality of municipal elections providing
for at-large selection of the city councii
president and councilmen, the district
court's factual determinations under Zim-
mer, viz., that blacks were not denied aceesg
to the electoral processes, that city officials
were not unresponsive to the needs of black
residents, and that blacks were not preclud-
ed fmm effective participation in the elec-
tion system by any past discrimination,
were not clearly erroneous. U.S.C.A.Const.
Amend. 14; Fed.Rules Civ.proc. rule 52(a),
28 U.S.C.A.

32- Municipal Corpore.tionr 680
In suit brough+- by black residents of

Fairfield, Alabama, challenging the consti-
tutionality of municipal election system
providing for at-large selection of the city
council president and councilmen, the exist-
ence of a tenuous state policy behind at-
Iarge districting, even when ..enhanced" 

by
two or possibly three of the ..extra,' factors
delineate<l in Zimmer, were insufficient in
the aggregate to establish a case of voting
rlilution. Code of Ala., Tit. B?, S 426; U.S.
C.A.Const. Amend. 14.

33' Elections cl2
In the absence of other evidence indi-

cating the existence of inten[ional discrimi_
nation, state enactments providing for at_
large districting are entitled to the defer_
ence afforded any other statute: their
means need only be reasonably related to
ends properly within state cognizance.
Code of Ala., Tit. BZ, S 426.

34. Municipel Corporations (F80
At-large districting is not per se un@n-

stitutional. Code of AIa., Tit. B1l, g 426;
U.S.C.A.ConsL Amend. 14.

.{,

R€id
B. Parg
Sides &

Appe.r

Court I
beme.

Beforr
IAT, Ci

TJOF

This ir
we decir

voters cl
that pn
certain
their clar
the mun
neoesssi
oons€qu€

l. Thc ot
57t F.2<
Issting
57t F.2
Branch
F.2d2S7

2. This c
The first
trict cor
Nevatt r

On rem
ment in
dents to

t Thesc
thority (
Record,
statuton
not pre!
Judge ll
Congresr
go bcyor
stitution
schemcr,
lllicitly n

a The rg
I {:18 (S
tldly uar
lrtion crt
t909. S{

Elcct
mcn.-
thoucer
each gt
officrs
for ruc
four yr

William M. Dawson, Jr., &lward Still,
Birmingham, AIa., Laughlin McDonald,
ACLU Foundation, Neil Bradley, Atlanta,
Ga., for plaintiffs-appellants.

Jim'liland, Asst. Atty. Gen., Montgomery,
Ala., for Baxley, indiv. & as Atty. Gen.



ts of
rnsti-
iding
uncil
trict
Zim-
fe88
.i"ls

lack
lud-
Iec-
ion,
rst.

Ia),

NEI/ETT z SIDES

T"*r;-'11: Birmingham, 

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Appeal fium the United Steteg District _ffI .. tbe Nortb€r,, ,;1;" ;"ff: ffi: ;@*fe,T,,,1l

l*fi- '---"'r ""o' snev arre un@nstirution_ tE;il*'; ffT,JSriln.:T:X
';rlT.r?rT*":.':.' :: ?:y:, u citv or Mobite. r,oru ^--

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"r,3H..ffi": [f::'.::'-the sccord rime Xh*trtf;;;;;; ;#:Ti::T3:

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214 5?T FEDERAL REPOBTEN, 2d SERIEI

may choce the number of wards aad there-
by determine whether the aldermen (who
must rcside in their rcspective wards) are
elected atJarge or separately fitm their
wards. Fairfield sectioned itself into six
wards and was thus required to elect at-
large two aldermen from each werd.l

Prior to 1968, no black had been elected
to the city council, but in that year six of
the seven black candidates sucteeded. In
1972, none of the eight black candidates
were eleeted to the eouncil. Aecording to

ized voting by an electorate in close and
changing racial balance.3

The complaint in this action was-filed on
May 30, 1973, alleging that "such absolute
control of the city goverament by one race"
in an at-large setting worked an unoonstitu-
tional dilution of black votes. The case was
tried on February 20, 1975, and, after the
consideration of voluminous evidence, the
district court ruled in favor of the plain-
tiffs, dictated into the record its findings of
fact and conclusions of law, and ordered the
parties to file reapportionment plans by
May 1, 1975. The parties submitted plans
and a hearing was held to consider them.
The district court enrcttd its final judg-
ment on June 6, 1975, ordering the city
divided into eight single'member council
districts but allowing the at-large election
of a city council president.? The judgment
was appealed, and on June 8, 1976, a panel

r'esolution adopted by two.thirds vote of the
city council, at least six months prior to r
general municipal electiort provide that the
city council shall consist of a presklent and
five aldermen. If such an ordinance or reso-
lution is adopted one aldermen shall reside in
each of the respective wards of the city. the
president and all the alderoen shall bc elect-
ed by &c voteB of the city 8t lar83, and the
president shau votc o6ly ie calc of a tic.

t. Ncithcr &r rtcort ac !lc' bdcA hdicstc
when Feirficld optcd to scctton ltrclf into six
wards. Thc statc iatute Brrnting municipali-
tics the option of dctermining thc nrunber of
wards wes oigtndty enactc<l ln l9G. l9o!)
Ala.Acts l(x). Sincc neithcr eppellant! nor ap-
pellees emphasized the issuc of whco Faffield
exercised iB option, we will asllumc thrt at all
times rele't ant to this app€d Fairficld had six
wards and elected itr alderocn at-largG.

ett v. Sida,533 F.Zl l36f (5th Cir. lg76), -for failing to apply ;;;;ln=.,"i-d'-

of this court vacat€d and rcmanded it, JVev-

diluLion-stsndards ret forth iry Zmzer v.

IficKeithen,485 F.zd f29? (sth Cir. 1918) (en
banc), aff'd sub nom. fust Carmll Pzrish
,Slm/ Bou,td v. Marshall,4% U.S. 6}6, 96
S.Ct. 18, 17 L.F,ld.ZJ 296 (1976),t.where we

$li
,*f

.:,,
i:, 

.

I'the district court, these disparate election The district court'g error was that havr-

results can be attributffE-iacially polar- found "the various standards and indicia
prescribed by the appellate court [not] help
ful one way or the other," it nevertheless
held that f;e plan unintentionally "does act
to inhibit and has inhibited voting
strength" and that "in practice it has
worked that way." We held this finding
insufficient to support a conclusion of un-
constitutional dilution. A finding of dilu-
tion, we noted,

must be based on the criteria that the
Zimmer and Wallae fvA;ustBISTh
6l0-(5t['Tir.]m v acatd an d remanded
on other gtounds,425 U.S. 947, 96 S.Ct.
1721, 48 L.Ed.u l9l (19?6)l courts dis-
till@te;lI2T.S.
755, 7 65-767, 93 SJm4Z*lg. ?34O, 37
L.Ed.2d 314, 321-3?5 (1973) and in ac-
cordance with all later eases. Unless
those criteria [q-tfi6ag]@Etroint to
dilution, r. e., iriffiilii6i'r reaily

6. Population figures are not available for the
election years 1968 artd 1972. In 1970, the year
of the decennial census, blacks constituted
48% of Fairfield populadon but at least 5Og of
its regirtered voterg, See Neyett v. Sides, Silil
F:d 1361, l36ti n.3 (sth Cir. 1976).

7. Thc distrlct court's origind finding! of fsct
eld conclucions of lrw ar,e reported as append-

Frd 138t, 1366-76 (sth Cir. 1976! .,

t Thc Suprcme Court afilirmc4 "but without
epprovel of the cooctitutional views erpresccd
by thc Coirrt of Appcds." 4U U.S. at 636, 96
S.Ct at 1085. Zimner con-
tlnu6 to

CW of Stuvtepo* 571 F21t z{Jd.,
(5th Cir. 1978).

9'lqtrC.V. 

- 

\

tt-$$25t



NEVETT % SIDBS
CIogETt Frd2aO (ttzt) 215

,v-
8),

ns
v.

5a

o
)6
te

L
)f

c
a
F

s

t
r
I
,

hqlp', then plaintiffs have not met their
brlden, and their cause must fail.

IVevqtt v. Srdes, S*l F2d at lB65.
On\ remand, the district court euefully

reexafrined its findings of fact (m adai
tiondlevidene wes t8ken by the ourt) end
considir€d the Zimmer criteri8 with speci-
ficity.r, The court ultimately onAuaea
that those findings did not demonstrate an
unconstitutional dilution of the black vote
in Fairfield. Judgment was entered for the
defendants on June ll, 19?6, and the plain-
tiffs took this appeal.

In this appeal, the parties present the
following issues for our determination: (l)
whether a finding of intentional discrimina_
tion is required in a voting dilution ease
brought by a racial Soup, (2) whether the
district court's findings of fact under the
Zimmer criteria are rcversible, and e)
whether the district court as a matter of
law conectly interpreted Zimmer and sub.
sequent relevant precedents. Since these
issues are eomplex and significant, we thinkit appr"opriate to outline briefly how our
analysis will proceed.

In Part I we diruss the nature of voting
dilution cases and the legal principles govl
erning their determination. This d-iscusiion
provides the necessary background for part
II, where we examine the first issue ra
hEie, @__intenliSnal discrimination

s

holding in this case. In particular, we read
Ziqmer as impliedly recognizing tlre easen-
tiality of intcnt in dilution cases by estaL
lishing cerlain categories of circunltantial
evi&nce of intentional discrimination. dt

Brriag ct out tbe relevant legd princi_
plea, the focus of our discussion shifts in
Part III to ttre specifics of tlris case. Tber?
we address and dismiss appellants' conten_
tion that the district courtis factual deter_
minations ar.e clearly erroneous. Finally, in
P-*t ]V we rcject appellants' argument
that the court beiow misinterpretedln" ai-
lution precederrts of this circuit. Crcnse_
quently, we affirm the judgment of the
district court. ( |

I. Voting Ditution

. [tl In deocribing voting dilution claims,
it is :mperative at the outset to distinguish
the typical rcapportionment case, Jhich
prcsents the traditional ,.one penxln, one
votc" inquiry. See Rcynolds v. Sms, B??
u.s. 533, &1 S.Ct. t362, t2 L.&t2d 506
(1964). In such a case, there arne a number
of coordinate districts (e. g., state legisla_
tive districts), and voters in larger districts
allege that their votes are devalued in com-
parison to those of voters in smaller ones.
The issue in a typical reapportionment case,
thernefore, is whether population deviations
from the average district are impermissibly

!tg" See, e. g., White v. Regester, 4tb,
u.s. ?55, 93 S.Ct. ?ts32, 37 L.na.za su
!19i31; Gaffney v. Cummings,4l2 U.S. ?gS,
93 S.Cr. ztzt,37 L.Ed.2d 298 (1973); Mahan
v. Howell, d10 U.S. BtS, 98 S.Ct. gT9, Bs

!.Ed2d 320 (19?3). The comparison is one
based purely on population figures; no
showing of dirrimination along racial, et}_
nic, or political lines need be ehown.

l2.{l A case alleging violation of tlre
one penpn, one vote standard, based solely
on a mathematical analysis, may properfy
be celled a "quantitatire" ,eap$rtionr"ni
case. That an apportionment scheme sati.s_
fies tlte quantitative standard does no!
\*"r-9., insure equality in all the aspects
of politicsl npresentation. The helrc_

dilution of the voti
racrar!_g:lernent. We hold that a showing ofIffi;y to establish such a case,

Our holding is based on consideration of
both the fourteenth and fifteenth amend-
ments. We determine that the recent Su-
preme Court decision in Washington v. Da-
vis, 426 U.S. 229, 96 S.Ct. n40,-48 L.Ed.2d
597 (1976), rnequires a showing of intcntional
discrimination in racially based voting dilu-
tion claims founded on the fourieenth
amendment. We eonclude also that the
case law requirrcs the ssme showing in fif_
teenth amendment dilution clrims. Morc-
over, we demonstrate that the ditution
casee of this circuit are consistent with our

9' The district court'e opinion on remend is sct forth in full in the appendix to this opinion.



216

geneity. of our society manifests itself in an
u-nequal distribution of interest g-rp., o-
::l-119 ethnic.groups rend to ; co,;;
mentalized. Thus, even a distrietins'olai
dravn without regard to the distri;;;;;
such grnoupo may distort their relative vJ
rng strengths. And, of coune, these under-
lYr.rq rylq-s prcsent tt" opportril;;;,
subtle discrimination by the ."nipui"tioi
of district lines. Such discrimirJ;;;;
o@ur ev€n if perfect population eoualitv

"*iS. Cases atteging adistortion j;;;
votin-g power of this type have been t"rij"qualitative', reapportionment cases be_
cause they focus ..not on population_based
apportionment but on the qrutity of *fr"_sentation." Whitamb ,. Churir,40S ;.4.
y:^\az,91 S.Ct. 1858, 1868, 29 r,.ea.zr ros(le?l).

57I FEDERAL REPI0RTE& 2d SERIES

enee out, e.

hard_of Supervison; Zimmer v. Mcfteith_en. Even consistent defeat ,f ;;;;,,
cand.ijates, standing alone, does no;-;;;
oonstitutional bounds. Whitamb r. Ct";
408 U.S. at 152_53, 9l s.cr. 1858. 

vu"'D,

- tO Z] The issue in ditution cases, therc_forc, is not whether a given *.r, "l*" "minimum number or Lnaiaitei.*i-?r,"
standards are not different *f,"r, *i"*lthe interest.binding the group is;;;;race. ',[I]t is not enough-tt"i tt"-ri"ili
group allegedly discriminat"a 

"guirrt ifnot.harl legislative seats in p."poi,l* ,o'if
y9ling potentiat." white i. n"iri". iiI].S. at 26ffi,99 S.Cr. .t 2889.-'R"il;;;
the absence of evidence that th; ;;:#;; ,provisions themselves were ..eonceived 

oroperated as purposeful devices t. fr.tfr.,racial discrimina tir",,,-W;;;";;;
v. Chavis,40g U.S. at l{9, gt S.Ct. ;;';;;;,the inquiry becomes one of determinlnlwhether the influence of. a 

"r;; 
;;;igmup has been distorted becatie its ;;bers have been denied .qr"l u."u* to poilti-

cal, processes such as party nominatins oro-
c^eouTs, registration, and, of course, ultlng.,s- ,d ar 149 50, 9l s.ct. 1858. A" ;;-plained in White v. Regestcr, the onlv Su-preme Courr c?se to tlare that r,^ .i*Jr,qown an at-large scheme under a dilution
rationale,

[t]he plaintiffs, burden is to produce evi-
dence to support findings tf,"t ti" p"iiti
cal processes leading to nomination and

:,-T""i were not equally open to partici_
parrox by the group in question_it"t it.s

T:rbe,=. had less opportunity than didorner residents in the district to partici_

,p"t.in the political procesEes and to elect
l(ryllltatot|s of their choice-

Wh,_? y.tugestcr,4t2 U.S- at 266,93 S.Ct
3j_439, (citing Whitamb r. Cirir,''i6
U.S. ar 149-{0,9l S.CL r86E) 

'--"e' N

,,ffi;;T[,tr
R,"grs,tr,r by enumerating 

""rt";;-;;ilthe dietrict courts should t*ia""t'f[]
mine whether a dilution case has U""n ,"a"out. These criteria were designed b;id.the districr court in tfr" ,"""1-iion-;i;;
dene by catablishing certain inquiries sui

A familiar

'!

-:,1

.i:1,

..*;n
,10 i"
ij" th

it' er
', H,

.i leI (s,

:13
8t

es
mr

dil
th
de

dil
th
pr
th
ttp

w(

dir

n8

ek
tte

dir

fo
th
all
eL

da

th
lu
in
fir

,1

I

I

(

I

a: 
I

I

I

-=+=::+,Nc rr one ailegtng gerrymander.
tne dnwing of distric[ Iines]offi
y.,^Goy!ilion v. Lightfoot, eOl US rS9,'SI
S.Ct. l2s, E L.Ed.2d 1l0 (1960), * ,ir." lp 

":rryt- interest group, e. g., Kirksey v.
Boatd of Superyr'sors, Si4 f.Za t3g fStir bir.i(en Mnc), cert. denied, __ U.S. -- , ;;S.ct. slz, s4 L.Ed.2d 454 (tsrl)-. er"t'i"i
similar variety of qualitativ" 

"""pp"aior-ment case is the dilution cas€, such as theone presented here. An at-large scheme
operating to dilute the voting effla"y of aninterest goup does so by lxploitirg 

-tf,e

tendeacy of large districts io diminisfr-*hat
would be the naturat effect of .".ia"*
patterns if legitimate single-memben d,ts-tricts were employed insteai. ff th" ,i"gl"-
member districts are small enough, 

" "ir_pact interest group will constituti 
" ,"joi-ty in some districts and will tf,u. f,"ru'tiu

capacity to elect candidates sympattretic-to
it1 needs. The large districtE cd;"rl"rl"
oI at-large plans tend to submerge compact
g"oups in constituenciea ,rtrae pia"niiani
regments- 

Tay # unsympathetic to the
Sroup end its needs.

t5] llre Constitution, however, doea not
demand that each cognizable 

"b;;;t ;;
i1".firT*t eleer. representatives in pru.portion to its voting str.ength. Whii v.
t@gegtar; Whitnmb v. Chavis; Kirk*y v.

*r



NE\IETT v. SIDES ,1,7
siliarv to the urtimate issu€ of ffi;'it-frrl'fili=r", t-or washingtan " ;;,Th aistrict urrt is !o make a particurar- {26 u.s. m, g(j s.ct' m{0, {g L.&trzd nyriz{ aetermination under 

"rcrt "ril.ioi "ra (r$6). nerorunls discoune is Et out, seth4 reigt itr ftndings to arcertein wheth- ;ii-;;il'il*r.L.o* f &yilro 6eg 1l G. rgrl"set€,-rr,el poiot t" anrli"r. i"t"-, it"ii,ilr,#o*.Herprix v. Jrcph,65g F.fr ue5 (5ti c;. 
!vw"'.' g,uurv'P't^f,

l9TQ; hvid v. Garrirln, S5S F2d]!!Z!,yA t1. The Intcnt Rcquhement ia(qlhicb. lg?7); Nevett v. sides,533 F.zd yoting t)ilution cas/€s186lr 1865 (sth Cir. tfit6); Zimmea 485 F.2t
at lf)5. 

.._,, _.......v,,p L.a In this part we explain and justify our
rhecourt in zimmerestabrished twocat- l,:fl'X lff:* ilffii:;f*l,?lmegories, one eontainin-g :dFl" going pri- show- the,at-l"r*";L" to be racially moti-marily to the issue of denial of ac.i.'o, vated. we begin with a discussion of thedilution' the other *i3]''1g 

lTuiries as |o applicabitity of-the intcnt principle to four-the existence of certain structural votiig teenth amendment dilution claims. Next,devices that mey enhan.ce 
-the underryin! the appricabirity of the principle to fif_dilution' The "primrry,!!1!s incluae] teenth amendment claims is discussed. Fi-the Sroup's ;*"di6iifi.a- politicat nalty, we harmonize our holding with theprocess,es (suchil the slatingof candidates), case la*, of this cirruit by demonstratingthe responsiveness of representatives to the Lhat Zimmer and its progeny establish suf_"particularized interests" of the gtoup, the ficient condition. ro. I rinaing of intention-weight.of the state policy behind at-large al discrimination.

districting, and the effect of past discrirn'i_
nation upon the group's participation in the A. Intent in Fou;lcenth Amendmentelection syst€m. 495 F.zd 

"i fgOS. The Dilution Claims

ffi,':?ii:,#}ff#; [8,e] we starr with a reitcration or the
for election til:..itv "r plurality); where 

principle e'xpounded by the Suprneme Crcurt
the positions 

"r" 
noitrt sted for individu- 

in Darrs' Where official action is racially
ally, the number oi canalaates for rvhich an neutral on its face. courts must adhere "to
electo*urt ,ot"ri; and whether eandi_ 

the.basic equal protection principle that the
dates must reside-in suMistricts. Id. invidious quality of a law claj-med to be

. 
rhe forowing discussion demonstrares fr:t!1'::'#iiiTil,ili::;'x.i1ff_"*that a finding of racially discriminatory di- 426 u.s. aL z4l,ilo i.cr. at fr48; a*,tl_,lution under the zimmer eriteria raises an unitcd states ;. i";* &ruqtion Agetrcy,inferrnce of intent and, therefore, that a ffi4 F.z,r. 162, r6ffi (bth cir. l9??). Thefinding under the criteria satisfies the in- court restat€d this 

-tcaching 
in vilage ofl0' A provision requiring that each etector'cast positions. Minorit!. voters can be disadvan-votes for as many candidates as there 

".a 
po.i_ taged by such a rule U.""ua" it may force themtions is known as an anti-slngle shot rule.' An to ,ot" io. 

"."_inUiytndidates, thus Cepr.e-rnti-single shot rule has spplicstion only in the ciating the ."f"-ti"u po"riUon of rqinority cand!coDtext of an electoral scheme that selects win- dates.
lft by ranktng all candidates in the order of
th€ number of iotes ti"y .*"iu". If there are - 

Th-e aumbered position provision in force in
.x. o{ficcs. thc top r 

"-&aat", nu trru.. n l- Fairfield, elso known as a 'iplace" 
^re, 

.eqJ.*t
eleclorel schemi is denominateo tr* thgt"- cendidates to choose one oi a gi"* nr.u.ioi
b8llot-plurality" voting ,y.t".. See R. Dixon, positions aod run ior it. Thui, frr*r , p.ti-
leyocntic i"proitrior: Reapportionment uons, lt is es if tbere were x s@rrate district-b-?* aad Poiitics 5OS (196g); SUr", n"lrrrm wide contests' The place sysrem diBadvan-
of Reprewttation and the ptiy sy"cri tilii taSes minorities by ceusing minority c.nJi-
I11F, 9{ *3-r" Apportiooed-t , t"iiiiii"" dates to run in heed-to-heai contesd .;;;
Djstic., 17 W.Pot.(i. 742 (lgel). An inti-sin- majoritv candidrtes. s6e wn-re 

". R";;;;,
gle shot rule invatidates alt ba[ots tt"ioo io, 1 u.s 755.766, tx] s.ct. 2332,37 ur/:ii-si-i
show votes for es many candidates r. ir,"r. 

".. 
(t973).



218

Arlinglon Height^t v. ldetrcplitat Husiag
Development Corp., 4A U.S. 252, m, n
s.ct. 555, 563, 50 LEd.zd 450 (197I):
"Proof of racially dirriminatory intcnt or
purpose is required to show a violation of
the Equal Protection Clause." The lan-
guage of Davr's and Arlington Heights ay
pean to establish intent as a prercquisite of
universal applicability to fourtcenth amend-
ment clairm of racial discrimination.ll For
appellants to succeed in their assertion that
racially discriminatory intent need not be
shown in dilution cases, we must find such
canies exempt from the general principle
enunciatcd in Davis and Arlington Heights.
We do not so find.

It is readily apparent that voting dilution
cases ar€ quite typical of 'traditional four-
teenth an endment cases. Here the appel-
lants challenge legislation establishing at-
large districting, a practice racially neutral
on its face, as discriminatory in its effectl
blacks do not elect their proportionate share
of the eity c.ouncil. In Davls, the plaintiffs
attacke<i a written personnel test, itself de'
void of racial oveftones, that had the effect
of failing four times as many blacks as

whites. And in Arlington flerglrts, blacks
challenged a zoning ordinance prohibiting
multi-family development, again a neutral
provision, that resulted in the virtual exclu-
sion of racial minority groups. The plain-
tiffs failed in both of these latter cascs

because they had not shown the officisl
action to be racially motivated. Simply
put, "[p]roof of a racially discriminatorry
intent or purpose is required to show a
violation of the F4ual Protection Clause."

The language of the Court in Davis and
Arlingtnn Heights is unambiguous and rd-
mits of no exception. Analytiully, nothing
about atJarge districting legislation sug-
gests that it should be tretcd differently
from any other manilestation of offidd
action that may impect grup. of pcoDh
differentially. ThiE obeervation b substrn-

ll. Since the four cascs we dccidc to'day allege
diluiion of black votes, our holdin$ arrr [Goo3-
sarily limitc{ to cas.3 catertrininS claims bf
racial discrimination.

12. That a districtin8 scheme ir motivatcd by
racirl considcrationg doer not nsoassarlty rcn-

57I FEDERAL REPORTEB.2d SERIESI

tiated by the reliance of the Court in Devir
ud Arlington llergits upon Wight v.
fukefeller,376 U.S. 52, 84 S.Ct. ffi, 1l
LBdzd 5U (1964), a case that entcrtained
an dlegation that New York's congressional
apportionment plan was a racial gprrymrn-
der.

In Davis and Arlingtnn Ilerglrts, the
Court buttressed its holdings by referring
ta Wright and other fourteenth amendment
cases that held intentional discrimination
nec€ss8ry. The Davrs opinion contains the
following discussion:

The rule is the same in other contexts.
Wright v. tukefeller, 376 LI.S. 52, U
S.Ct. 603, fr L.Ed.2d 512 (1964), upheld a
New York congressional apportionment
statute against claims that district lines
had been racially gerrymander6d. The
challenged districts werc made up pre-
dominantly of whites or of minority
races, and their boundaries were irregu-
larly drawn. The challengers did not pre-
vail because they failed to prove that the
New York legislature 'was either moti-
vated by racial considerations or in fact
drew the districts on racial lines'; the
plaintiffs had not shown that the statute
'was the product of a state contrivance to
segregate on the basis of riace or place of
origin.' 376 U.S. at 56, 58, 84 S.Ct. at
605, ll L.Ed.2d, at 515. The dissenters
were in agreement that the issue was
whether the 'boundaries wene
purposefully drawn on racial lines.' 376
U.S. at 67, 84 S.Ct. at 6ll, 11 LEd ZI at
52.

426 U.S. at ?10,96 S.Ct. at M7; arrrild,,
Arlingtnn Heights,42g U.S. at h5, y, S.CL
555.

[fGf3] This very rccent rcaffirmation
of the holding in Wright leaveg no doubt
tlet a showing of intent is a nececsary
ehnont in 1 case elleging a racial gcrry-
mrnder.u fe .ee no digtinction that would

dcr it subject to invalidation under thc equal
prltcction clause. A districting My may
properly consider race if the plan does not
"slur or stigma[tizc]" any race and does not
"fence out" e racial group from participation in
politic-al processes or "minimize or unfairly
c.ncel out" such a group's voting strengtl.

ci
al
dil
lq
te:
rh
s€
m(

C^

S.r

up

&
(er

$.r

v.

Ci
mr

ef
in
EI

cr

b(
ef
lir
nt
ht
m
s6

(5

m

ll

I

.L



{I
l
l.'
I
I

4S

v.

t1
3d

sl
D-

ca\l for different onstitution8l requieites in
e rbcial gerrymander case than in e voting
dilqtion case auch as this.. The right al-
hgddly infringed is the same in botb con-
texb: the righ! to effective perticipation in
t.he ilectoral Foces& An uunrti{ulionsl
gerrlmander violatcs this rigtt by ornpert
mentalizing or fencing out a group, €, 9.,
fumillion v. Lightfoot, 36{ U.S. 889, 8l
S.Ct. 125, 5 L.&1.2d 110 (1960), or by alicing
up a compact minority, e. 9., Kir&;*y v.

Board of Supervisorc, 554 F.2d lil9 (5th Cir.)
(en banc), cert. denid, 

- 
U.S. 

-, 
98

S.Ct. 5r2, 54 L.Fi.2d a$a (o9lj); tubinnn
v. Commissionerc Caurt,505 F2d 6?{ (sth
Cir. 1974). An invidious atJarje scheme
merely achieves the same end, denial of
effective participation, by submerging an
interest group in a constituency large
enough and polarized enough to place that
group in the minority consistently.

tl4l That the constitutional tests should
be the same whether the right to an equally
effective vote iS denied by drawing district
lines or erasing them is illustrated in a

number of our cases. We have repeatedly
held the Zimmer criteria relevant to gerry-
riander as well as dilution cases. In fubin-
son v. Commissroners Court, 5M F.zd 674
(5ir, Cir. 1974), a case finding a rzcially
motivated gerrymander that fragmented

United Jewish Organiz-ations v. Carey, {30 U.S.
144, 165. 97 S.Ct. 996, loo9, 5l L.Ed,zd 229
(1977). Although a benign plan, which is de-
signed to remedy the underrepresentation of a

racial minority group, is permissible under the
Constitution, a state or locality is under no
obligation to provide minorities, racial or otler-
wise, with repres€ntation proportjonate to their
voting power. E. 9., White v. Regester, 412
u.s. 755, 765-66, 93 S.Ct. 2332,37 L.Ed.2d 3r4
(1973); Wnitcomb v. Chavis,.$8 U.S. 121, 152,
9l s.ct. 1858,29 L.Edzd s63 (197r).

l!. Appellanrs point out, however, that neither
Davrs nor Arlinglon He@hts contdns any refer-
ence to voting dilution decisioos such as Reges-
ter, Chavis, and Zimmer. These dilution cases,
appellants contend, have not rtquired e show-
iog of intentional racial discrimination, and
hence the failure of Davis or ,4rl@on Heights
expressly to ovemrle these dilution precedents
lndicates they are an exceptioo to the gcneral
nrle.

ztg
"what couf{ otherwise be a cohesive voting
@mmunity," id at 6?9, we stated:

The standsrdE for decision in dilution
carec are developed primarily in crses
dealing with [at-larg€] districting [citiqg,
inbr slia Whita v. @atnr, W.}litqpib
v. Cheruis, cd Zimmer v. .lfcf,citien l.
But "we have no besitetion ia eplying
[those t€sts to] measure $e
constitutionality of reapportioament
plans involving only single-member dis-
tricts. In each instane, we ane requured
to detnrmine the same quation, wbther
or not there has fun an unconstitutional
manipulation of electnral distrtd bunda-
nes so as to minimizn or dilute the voting
sbength of a minority c/ass or intetet."

Id. at 678 (quoting Howard v. Adams Cnun-
ty Boad of Suprvisors, 153 F.zd 455, 458
n. 2 (5th Cir.), cert. denied,40? U.S. y6,yz
S.Ct. 2461, 32 L.Ed.2d 8r2 (1972)) (emphasis
added); axord, Kirksey v. Board of Supr-
vr'sors, 554 F.Zl at 143. Since we find no
constitutionally significant distinction be.
tween this case and a gerrymander case like
Wright v. fukefeller, a decision expressly
reaffirmed by the Supreme Court in Darr's
nd Arlington Heights, we hold that a
showing of racially motivated discrimina-
tion is a necessary element in an equal
protection voting dilution claim such as the
one prcsented in this case.lt

Appellants' error is that the), misconccive
these dilution precedent<. Regester and Zim-
mer do not hold that a showing of inteit is
unnecessary for a finding of unconstitutional
dilution. Racially motivated discrimimtion
was a significant factor in both Regestr and
Zimmer. In Re3ester, th€ Court found a "his-
tory of official racial discrimination
which at tim€s touched the right of Negrc to
regieter and vote and to participate itr thc dem-
ocratlc proc3:s," 112 U.S. at 766, gii S.CL rt
239, end ht Zimnw, thc Couft notcd thrt
"minority rcsidents harn sufiered
fronr a protracted hhtory of'ncial Oscrinina-
tioo which touchcd their abllity to perticip.te
ln the electoral process." ,{Elt F.2d !t 1306.

We recognize thst neither Re8ester nt Zia-
mcr dcalt with the issue of racially motivrtrd
discrimlnation in the enactmcnt of thc at{rrge
plus contested in those cases. The nGoEsery
lntent. however, need not exist at the pessagc
of the plan. All that is necessary is thrr thc
lnvidiously disproportionate imprct "ultim.tely

NEVEIT v. SIDES
CL.rlTl Fr.!2t (lft)

[e
l8
nt

es

1e

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ty
u-
e-
1e

:i-

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Ie

a.
v
a

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et
1e

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to
cf
rt
r3
ut
ne

I6
rt

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ry

v'
1d

al
iy
Dt

Dt

in
ly
tL



m 57I FEDERAL REP()NTER, 2d SERIBS

-ItCl m. fi:ftcenth amendment is a spe-
:ft gIlI_br,irn against state or federal ;-
IiHH,tfrH,*Tffi Jtln;"[*, ":
on account of r?ce, color, or prcvious condi-
rron of senritude." U.S.Const. amend. XV,
S f. .Hbtoricslly, this amendment *;;hJ
vehicle of first resort for Utactr. altlcinJ
impairment of their franchise.i 11;ffi;i:the rights of blacks to participati J;;
!:ydr :l the politicat ptooe$ and inrerdicts
arr metJrods demonstrably contrived to di-
H:h ,r- *rticjnarion.i As th" i";;;(rurt stat€d in tlre case of Lane n. Wit*r-

r28r (rsB):

r*,?..,:,x,1ll,lilH:1,1i,,.?:ffi ;r8 we Eccntly held in Ktfrssy, , pi"", prlr.tir"Jin. its carrctment, that ca.Aes io.w.aJ'il;il::
:l-in"u- is viotative or ,r,"- ioli".iiiarner-dnent Similarly, a ptan tegitlm-ei;t:tnceptron may become 

" ";hich f;;;;;;,-,;;idiscrimimuon aad hence b""".;- ;;;;;;;

[ffi#dffit#:".,"#;T*:,#]i
la:^}: tiftecnth emendrnenr was ratified in

l.8Toj bur wes nor successtuily in*flj'Lio."thc.suprcoc court untii rsrs, *;"iih"E;;nullificd ea Oklahome

1A. *1"i.ilffi #:. ?ffi:'$nifiTffi
3O thelr &rccnd.trts from fiteracy ai;;;#ty_rlquirlaEnr,g,. Guinn v. ltnit& i;r;;A;y:l_ yz,_$ s.cL e26, ss uEd.l3;.[;ffi
:y I{yan v. Andersrl4 23S U.S. 3H'3;
:.ct Ta se L.Ea rers tuirs). ;;.-il";
ffiml1ffiq6.*t*nrrtrffi#tryd*,LH
.-'ll1. rE .c;;il.'fr'rf,ffi ffill1$f uldcr rr. invetidetcrtilil; ffi:f$"s or.hcrr to,!sir..r uurrn a;;-cff
f, #.ro-ffi fl,**,;."f"i.i,#IrE v. wlq 3{n u.s. zes, ca s.c;-e?..-E

B. Iataat in Fiftanth Amendment
Dilution Ctaims

- t15-J The appellante allege rhat Fair-field'r at-lar3e plan ia violati-ve 
"i;;;;i:hnt} amendment ar well as the iour-

Sttt Thug we must det€rmi"" ,f,"tf,",
itficit yoliyation is a prerequisite to 

" 
,u.-

oeEEruI claim under the fifteenth amend-ment We hold that it is.

1T fFift€enthl Amendment nuilifiec bphisticated as well as simplemiffi;;
esof discrimination. tt trits;;;
9*l rcquirements *f,icU 

"ffatiJ.l',handicep exercise of tl. fnr"il;; ;:
:,:y race atthougtr t,h" "b";;frLo vot€ may remain unrestriet€d Es to
ri80e.

tlfl Broaa though the reach of theamendment may be, it h8s bee; i;;d;
s_u^ccessfully only in cases founded;;;;
rnrcntronal racial dimrimination. The nec-essary motivation was painfully 

"O*oi iotle earlf eases striking ar*, ifr" "*frrl"iof blacks 
lrom party p"ir*i"r, ..;';;;

v. Adams, g4S U.S. 461, 463_65, ?tS.il 80d:,3 1.ry. ll52 (leEB); ,r,"'s*nJr;;;
gl_ause, Guinn v. Unitd Staties,;S il. il;364.f, 35 S.Ct. e26, 5e L.Ed:;3d&;;l
and the invidious administrsrioi 

"ifrl"#r_l9b,". g., Louisiana v. unitcd Sr"r"r,'ffi
_uj!...145, l5l_&3, 85 S.Ct. 81t; B;;d;
700 (1965). Moreover, and of p"rti"uf""iT
evance to the inquiry before g", o"i"ffy

L.Ed l28l (1939). Subsequent decisions und€rthe fifteenth amendme
ro excrude ut""t. r.llirvardated 

attempts

*ff #r;1"#,ti;huff'yiri#
wr-isht,32t u.s. 64s, 64 s.ct. ,iz, ra'i.ei.{ei(19{4), and invidiously to admjnister literacvrests, Loursran a v. u nited s"r"r- iili'u.i].rX
T.sql 8r7, 13 L.u.2d ros rrG; L""r-i.
tri511it..1:rx,lil*m{i,;,;}

:,:i!! i!,i:i,,J r,?.lii y;: #: :txjtronment case dccided r
rt. or cou.i] rr"ra'[ri 'rnder the amendmcnt'

raciar serry-m;l;r-;;""'J'"11$ :}"*t ;u.nd€r the fifteenth amendment. ;*;r";
Yr?h:y. Rcr,kcfeiler,3z6 U.s. sz, ar ii,,. ffi
rj:tilii?r;x#r*ik#388 F.2d 929 (Sth Cir. ts
zrz r supp. d;]ffi ifl}*;:'.J; ffidcfaild dlscussion of the history ;;;;ff
Jncnt ef tlle fiftecnth arnen@rcnt, scc W. Gil-'tr;?;#;:X;ffiffi
ffijfrffili y,L#;.rtr*?

c
q
n
tl

3

c
o

n

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a

s

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1.

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,:i,'
.:.1,

'.tc

t!. Sce discussion, .euprr notr t,l.



l. o

NEYETT v. SIDBS
Cber!7r rrd!, (tfn)

Xffififfioi 
..v'r--'E-- i-- - r 

t"utl.t, tf* {{rrietd's.,at-111e ]!Y ::

|[
nr

rcriminatory motivations were unmistak- f,'e have held that the appellants cannot

ly present in hnillionii yhere tlre Court aucceed on either t5eir fourteenth or fif-

marked that if the plaintiffs could puve tcenth amenl':{-ll.aims.unless *',:;

";f"ffi#'would 
be imeeirtable, trn- a*tiis itt cilv cognci.l erist becsuEe of

i*ii-iri Al 'practical purpooes'to- a invidious racial motivatioT P th:::tt:':-
etenrtirnt @onsEefion,- that the .iq8 .pcthp rye demoaslrrte tlrt tle on-
ffi]ii;[tr "ffi "on"i*"a'iriti 

legrc- t itting dilution prccedents of this cirurit

iiins wltitz and colored votera by fenc- ale consistent with this holding'

irL Nlgto citizens out of town so as to

dfrrive-them of their plecxisting munic- C. Fifth Cinuit Dilution Pdents
ipll votc.

364 u.s. at 341, S1 S.Ct. aL \n- These tlSl rhe ltiPI1 statute enabling

cases illustrate what is apparent on tle face Fairfield to eatsblish its at-large electoral

of the amendment: a stiowing of racially scheme was enacted in 1909' In 1901' how-

motivatedofficialactionthatinfringestheever,Alabamahadadoptedaconstitution
right to votp is sufficieit t, .tut" a ius€ of which had effectively disenfranchised

action. blacks' The appellees contcnd' therefore'

Our holding is the converse of this propo- that the 1909 statutc could not have been

sition. A ehowing of improper motivation adopted with a racial animus because no

or purpos€ is necessary ti o't'lfitf' a valid blacks who could have been discriminated

cause of action under'*r" rirt""ntt amend- against could vote' k n4ccill v' Gadden

ment.ourconclusioniscompelledbyco,ntyCommixion,.sssF.2dm'nw
Wright, the Supreme Court decision we (5th Cir' 19?6); Taylor v' McKeithen' 4*
have held controlling on the issue of intent F.2d 893 (5th cir' 1974)' Although we ac-

in the fourte"ntt "*una*unt 
claims in this cept the district- court's finding that the

case. wright *r" urorg-r,l ,na"1 _the 
f]l- lgcp plan was adopted without discrimina-

teenth amendment ". 
*"it. 3?6 U.S. at 56, tory intent, cases 

-of 
this circuit emphasize

&l s.ct. 6(13. That the court held a show- that ttre search for improper motivation

irg;i intentional discrimination was essen- does not end at the enacting stage' Thom'

tial to a valid claim in that case implies as a asville Branch of the NAACP v' Thomas

matter of logic that such a demonstration is County' 5?r F'zd 25? (5th Cir' 1fi8)' A
iJr""y uider both fourteenth and fif- plan, raeially neutral at its adoption, may

teenth amendments. iurther preexisting intentional discrimina-

cases in this circuit exemplify the teach- tion, e. g., Kirksey, or it may be maintained

ing of wighr. ln r..Jr" i. naoia.s parlslt for invidious purposes, e. g., Bolden v. city
potice Jury,508 f.2d iigg (5th Cir. 19?5), of hIobite, S?r F'zd 238 (sth Cir' 1978)'

*" u*.atci'"nd remanded a judgment find-

ing an atJarge pr"r'riot"tire-of the fif- tlg] whetlrer invidious discrimination

teenth amendment. Writing for the court, .otiu"t". the adoption or maintenance of a

JudgeSimpsonstated:districtingschemeorwhethertheplanfur.
it does not suffice to show that the rlse of tfrel nreexisting purposeful discrimination'

[atJarge] districts has diminished to some the inLnt rcquilement may be satisfied by

extenttheproportionottt",r.inthedirnectorcir.cumstantialevidence.Wbere
voting unit unluo some evidence also direct evidence of discriminetory motive is

demonstrate. th"t;t"h i;1-f"tg"t districts prcffered'. a case js easily made' Y t'-!:
were,,conceired oi operatcd L-purpoT- Terry v. Adams,!15-lJ'S' 461,73 SJIL 809'

ful devices to furthei racial or economic 9? LEd. 1152 (1958), as lt. is w\re 
-th3

discrimination." circumstantial evidence of racially discrimi-

Id. at 1113 (quoting whit/y)mb v. chavis, natory motivation is so atrikingly obvious

{8U.S.at149,91S.Ct.1858);seePatgev.thatnoalternativeexplanation-yqlP"iyj:
Gny,588F2dll(B(EthCir.19?6).e.g.,Gotttillion YicLWov.Hopkhs"|L8



zn 6il FE)ENAL BEFOEIET, 
" 

SERIESI

u.s. 850, 6 s.cL 1061, &) LE,d-" u (1886).

"But such cr*s ane rzre. Abent a pettcrn
ee rter* as thet in @million or Yick Wo,
irpct elone is not determinatiw, and the
Conrt murt look to other evidence." AF

mZ^^trcriteria go to the issue
of intentional di*rimination, first of dl,
beceuoe they would be irrelevant if motiva-
tbn were not an iasue. If, as the appellants
suggeat, it is sufficient that'the combina-
tion of a legal system (atJarge election)
with the minority status of blrrcks and e
soci€tsl syst€m (racially polarized voting)
bae the effect of diluting black voting
atrength" then of what relevance is the
amibility of political prccesses to blacks,
tlte rcaponsiveness of the city council to the
needr of blacka, the weight of the stEte
policy behind the at larye plan, or the exisG
eace of past discrimination in the electoral
procets? Moreover, the Supreme C,ourt has
aquerely rejectcd the contcntion that rb
large electiour are unconatitutioDal merely
beceuge fewer minority candidates are
electcd, due to polarized voting tlten would
corr.eapond to the minority's portion of the
district population. Whitomb v. Chavis,
4m u.s. t2L,9t s.ct. 1858, 29 L.Ed.2d 363
(glf). It is clear, therefor.e, that mere
dirproportionate effects are not enough to
invalidate an atJarXe plan ud hence thst
Llrc Ziamq criterie puryort to est8blith
ronc{:hing mora

Pertape the nct useful eppruch to anr-
llzirs the Zimmercriteitt es they relate to
the exictcru of intentbnd diuiminrtin
is to auurue that cn aLlarge echeme ir
being used u a vehicle for echieving tle
comtitutiondly Rrohibitcd end. The obj*
tive of such a rheme would be to pevent a
group fmm effectively participating in ehc-
tioue so that the governing body need not
nepond to th€ grcup's needr" This objcc-
tive would be achieved by iuuring thet e

oheeivc grroup remeins e minority in tbo
voting populalion, thur peventing thrt
gmup fronr electing minority rcprraentr.
tivet or from holding nonminority rrprc.
aentetivee acountabh.

lj*-n Heights,42g Y.S.et trO 9l S.CL ot Circurctsntial evidene t;er the plrn
661(footnotco omittcd)i An ere1rinetion,of wg earied with discriminatory intent may

in t^be form of starkly differentiil
tute "other evidence" @ impoct; the historicst hrckground ofco pf*, "p"iL"fJfv if it reveels a series

of offirial actions taken for invidious pur-
poc€s"; or the "specific sequence of events
leading up to the challenged decision." Ar*
lington Heights,42g U.S. at%7,9I S.Ct. at
5,6{; see Smith v. Paris, %7 F.Supp. 901
(M.D.Alaf966), atf'd pr cuiam, g86 F2d
979 (sth Cir. 1967); Sinrs v. Baggett, D{t1
F.Supp. 96 (M.D.A1a.1965). Such was the
apprcach of the inquiries in Davric and Ar'-
linglnn Heights, cases we notcd recently in
Kirk*y v. furd of Supenisrin to be ,,of

particular significance if the
only issue werc whether the racially neutral
plan crurted such exclusion [from the elec-
toral prccessl." 554 F.Zl at 14? (emphasis
in original). But, as we held in Krrksey, the
inquiry de not stop at the enacting stage.

[2l,nl Where evidence of discriminato-
ry intent iE lacking in the enacting
prlce$€q the Zimmcr criteria beeome
acutely rclevanL They may demorutrate,
es in Kir**y, that the neutral plan is an
"instrum€ntality for carrying forward pat
tcras of purposeful and intentional discrimi-
nation." 55{ F.zd at 147. In Krrksey, the
plan was recently formulated, and it per-
petuated pest intcntional discrimination. A
rcmotely enacted plan, such as the 1g0g
plan in thb ca*, that was adoptcd without
rzcial motivatioru may become a vehicle for
tlte exclurion of meaningful minority input.
becaure intervening circumstences cause
t}e plan to rort tlrat way. Who tbe mon
bletant ohrclce to blrck 8osec are dtruct
down, strch u et"large plan may opente to
devalue blecl participotion so as to dlow
rcprcsentrtives 'to ignor,e black needr,
flhere the plen ir mainteined with the pur-
pre of excluding minority inpu! thcnecee-
sary intcnt is egt8blilhed, and the plan ie
unconstitutional. We so hold today in Bol-
fua v. 6tyr oI l[obile.

'tr
lrDr
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be
ent
intr
exir
e8 l

ete
its€
low
t€rr
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iss
exp
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EC

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wl
th

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sti
to
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e_y

5l
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drl
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NEVETT v. SIDES rx)DCtr...!7t Fr.t2a (trrt) 33o
[2ilJ' Whetner the plan_-6_.geat-er-r=-- of e reorrim-oni ]L-rt@r w'EGrer me P-rgeat-e+-p- of a rcquirrement that rcps€ntative8 rcside

io "rbd;;;'" il;;r,{ss Fzd at lB&5.ffiffi f-*^!:fT.e.'t otu"*"a, {,r#r'€ ro,erreo' Lbnstder a plan neutral in its charzctcricaics of [an] eiectlrar'"vj"rir1"rl
trm^:":fS:,*,;g .1y,1 Ff*rvc impruper uc invidious,itrt€Dtbnalty isnoing,Heck,turGru Tr" t""h;l {b.';#fitr rrl:illtilexistence of such discrimination p*upp*- criminatirin . -:*: .- \thitc v. fuatcr,es racially polarized voting in the erecLr- 4u u.s. 

"i zoo, s i.ca * M.ete'r3 porarized or broc rg,.,ng, .rth,qi i" r,,r The estsbrishment unde r zimmeritself constitutionally unobjeeiionable fi' ai tmt uuct<s tr"r-" tn a"ried access to arat-lows *prnesentatives ? igngr minority in- ing, ,.girtoiior,Ioil,", aspects of politi_terests without fear of reprisar at the pors. car participation may indicate that if white\ilhen bloc voting has been demonstraiJ,il reprnesentatives have not properry enter-a showing under zimmer that the govern- tained brack interrests, it is because bracksing bod'v is unresponsive to minorit| needs cannot.achieve the input to which they areis strongll' conoborative of an intentionai entitled. S* i;i; v. House,515 F.2dexploiration of the eleetorate's bias. The 6Lg, t2-g 6th-6; lg75), vacatd andlikelihood of intentional exploitation i, .;-
hanced" uv tr," 

"*i.t"nce or sy.t"mic ae- fiffif.Tdl :;^;*rtr;i{;,,ffirr t;"TJ;
vices such as a majority.votc requirement, ttu prop", 

"i;;;;;, sueh a showingan anti-single shot provision, and the lack wourd satisfj *," irt"r, requiremen;,

F.2d 238 (sth cir. rszal, ;ilr,J';j"i.n;
lack of success of qualified Uf".f-"rrJia"i"r.

10. Showings of unrerponsiveness and lack of
:.::::r^i:l: a strorsdilution 

""r". rn. ."f""_rry.ot a governing body to respond to the needsor tts constituenc]- is, in large measure, what
*tle:Iat body-representative. See H. pt*i".
:::,,?:!,up, of Representation 2J3 (t972).
roeauy, electoral processes are designed to pro.vide an institutional end periodic _ot"j'.fguaranteeing governmental responsireness.
"Our concero with elections 

"nO 
.f*to."l- i].chinery, and panicularly with whether elec-uons. are free and genuine, results from our

:_o:."_,^",]:l^ 
t h 

" 
t s u ch mac hi n..y i" n 

"".*".y- Iornsure systemauc responsivencss.,, u. at ii.
. Thus, if rcprresentatives 8ne unresponsive to

te needs of e racial group apprrenUy beceuseromr st!8rs of the clactoral procesi <liminiihrhc jroup's input. the iofj."n"" - 
tfr"t 

- 

ti"pnocesrcs rre maintained with the orroo"" i.discriminrte can frirly bc drewrr- 
- F-''Y* tv

..[At-hrge] districts, it would !ccm, violrt€
thc F4ual protectiro Claugc, not Uecause ttreyoverrepres€nt or underreprelent pure andrqnple, but because thev d6 ur"t in 

-a 
conixirilrete- all steges of the electoral il;:

!r.1w Uce-n c{fectwety closrd to ia-.r-,,rj"ui.
ctasrcs of citizens, maling thc political estab-
F_Bt'inrufficicarty rcsporuive, ro [rhoscclaaae3j htenests.

9Ap:r, Apoortiomtxrit .nd thc Rlght to Vote:Steadards of Judicbt Scrurirry, fE?B irpii.

16. 
. 
If racially, polanzed voring did not exist.*' h i te candidates could no, .*-pu"i 1o';.i";;;;

achieve. office solely because they were white.
I nerr Dlack constituents would constituternerel;" another minority group that mlgt i [e_come an element necessar,. toihe forma'tion-ofa majority coalition. Under these 

"""aiiion..white officeholders woutd ig"".. uLJnlal"itheir penl.
ACditionalll., in the absence of polarized vot-

.n6;. biack candidates could nor U.OeiiJoffic"
because they were black, and 

" ""* oi ,n"oi-stitutionat ditution could not U" ;"al.-";iijfvoting does not follo*. racial lines, tf," tr**'lithe minorit,' racel has tittle re"son io ;;;ti;
.- . ." United Jewish Organizatio" i.'dir_

eJ', 430 U.S. t44. t66 n. 24, Sz S.Ct. S96, r0i0,sl L.Ed.2d 22s (1977).
t7.: .A" the Supreme Court has recently noted,

-1here 
rs. 1o authority for the proposiaion-th'.'i

tne candrdates who are found ricially unac_
::lt-able b1'. the majority, and the ;i;;;,;;;;_
ers supponing those candidates, have n"A-*rei.Founeen* c"- Fifteenth e-enAm.nr,git 'in-

!lg"r.by this process.,, u"iti iifrlJ ii-
$ffifS5. i; ff?;lT,!".i,,1h, ::iilNeve* v. sides,533 F.2d ,aal,'iie;tsilff:
1976).



t n Z0] A tenuoua state policy in favor

n1 5?T FEDERAL REFORTEN, 2d SERIES

ble
yl

.\
gut
ha!
ch
tpl
ery
to
Grs
IIo
{58
S.C

I
(
I
2

t
\
t,

l
t
I
I

I
s

I
s

a

t
I

l
I

l

Id,
nol
rci
vil
1G
Pa

'(6t
.61(
ne,

96

,v.' 
11(

. mi,
Cit
of
6A
l3(

.$

I
ii-,
,,*'
::r

Ct
.,'..

W That the finder of fact determines
tlre plaintiff has prevailed under one or
even several of Lhe Zimmer criteria may not
estsblish the existence of intentional dis-
crimination. See, e. g., M&iil v. Gadsden
hunty bmmision,53s F2d ?77 (sth Cir.
fg76). The evidence under tlle other crite.
ria may weigh so heavily in favor of the
defendent that the evidence as a whole will
not bear an inference of invidious discrimi-

tbL In t city offi-
ci{ETad "nGr suggested, either in their
brief or in oral argument, any countervail-
ing municipal function which [the district-
ing act] is designed to ser-\re." 3Ol U.S. at
UZ 8l S.Ct. at 121'I. And in Grrrn2 v. Unit-
ed Ststes, 238 U.S. 347, 35 S.Ct. 926, 59
L&L 1340 (1915), which struck down Okla-
hom!'s grandfather clause, the Court stat-
ed: 'we arc unable to discover how, unless
the prohibitions of the 15th Amendment
were considercd, the slightest rrason was
afforded for basing the classification upon a
period of time prior to the 15th Amend-
ment." /d. at 366, 35 S.Ct. at 931. Al-
though state statutes generally need satisfy
only minimum rationality requirements,
*e, e. 9., Henne**y v. National Collegiate
Athbtic Ass<rciation, 564 F.2d 1136, 1144
(5th Cir. 1977), the weight of the state
policy behind the districting plan is an evi-
dentiary consideration that must be con-
sidercd along with all other relevant evi-
dence to determine whether the plan is

impmperly motivated.t

R6r. i, 28. See also Hendrix v. Jo*ph,
53 F.2d 1265, 1269 (sth Cir. 1977).

21 Professor Brest summarizes the relevance of
thc weight of the state policy as follows:

The courts possess no general authority to
invalidate a decision because it is "undesir-
able," and an allegation of illicit motivation
does not enlarge their authority. A conscien-
tinus decisionmaker, however, considers the
coets of a proposal, its conduciveness to the
cnds sought to bc attaincd, and the avail,abili-
ty of alt€rnatives less costly to the communi-
ty es a whole or to I particular sc8ncnt of
th community, Thrt r &idon obviouly
ffls to rcflect thcse consid€mtionr with r€-
spcct to any legitimste objcctive supports the
infcrence thalt was impropcrly motivatcd.

BIr,., Palmer v. Thompson: An Approach to
ti,c Problem of Unconstitutional Lcgislative
Maive, I9?l Sup.Ct.Rev. 95, l2l-22.

21. As we said recently in Kirksey v. N. of
Sugllisorc,ss4 F.2d 139 (sth Cir.) (en banc),

ctse. .It compr.ehends "a blend of history
and an intensely local appraisal of the de-
sign and impact of the [at-large] distriet in
the light of past and present reality, politi-
cel and otherwise." White v. Regester, 412
u.s. at 769-70, 93 S.Ct. at 2B4t. It is the
obligation, therefore, of the finder of fact
carefully to examine and weigh the compet-
ing factors to determine whether the coinci-
dence of those probative of intentional dis-
crimination is sufficient. "Determining
whether invidious discriminatory purpose
was a motivating factor demands a sensi-
tive inquiry into such circumstantial and
direct evidence of intent as may be availa-

cert. denied, 
- 

u.s. 

-, 
98 s.ct. 5t2, 54

L.Ed.2d 454 (1977), "[b]y proof of an aggrega-
tion of at least some ol llhe Zimmer I factors,
or similar ones, a plaintiff can demonstrate that
the members of the panicular group in ques-
tion are being denied access." Id. at 143 (em-
phasis added).

2jl. This procedure is not differenr from that
employed by a fact finder in resolving any issue
by circurnstantial evidence. As in other cir-
cumsuntial evidence cases, it may be that the
Fndings in the plaintiffs' favor, takm individu-
.lly, c.nnot establish thc ultimate issE. Thi.
doca not necessarily foreelosc relicf. Thc
aSgregate of the evidence controls. "[f]he
convergence of a number of decisions, each of
which could be explained in terms of licit ob-
jectivcs mry support the conclusion
that esch of the decisions is illicitly motivated."
Br€st, supra note 20, at 123 n. I39.

the d



NEVETT v. SIDES sDer1

$1.f,tlff., Heightal2, u.s:t';;,'-A:%t apprlach open to pr.r,dr;
If,c lrke thir.opportunitv to addrue ran- :trd;#'j q*ffi*,ffiH..iH:

gua3e ia sevcral opinions oi tti, circuit that *d..1ffi . rurZfrprsrp" .ntlqlle Uyher rurea 
-" 

im"t*t confurbn in tfiir $rllirhing til-ih" plra was enected withcharging and comprex arca of ir" r"r.-lt dr*ri.i*B;lr;*. The eecond ave-Bppcrg that a number of our cacg hsve nue, however', ilns to ellor plaintiffs toeepoued alteraative appoaches evailable euceed under e dilution ntionale withoutto plaintiffs in dilution cases. tf,e.*Lt ertablishing intcntional discrimination. Tocase retting forth theee alternatjves is the extenith"t-ur*" -"*--rr'di"rl",Howard v. fud of_supnisoi,lss F, im.rii. io,qrifu, u,ey cannot be reoon-455 (5th Cir'), cerl !":*407 u.s. gw,iz cired with tte'irt"*ening supreme crcurt

,*L:; ;if.*, T::,Sr,',,,;,"1rru,,f . r2st rn eaeh or these Firrh circuit cases,
ence of a constitutiorrflv-irp"r.ird'if. Io*:'9I' such language was not operative.
redistricting p-t"r, in the abs€nce or 'n"tt 

ln fubinson v. hmiixior"t C"rrt, tt*
apportionmini, liaintiffs 

-;;;;;]r;i- nlan was atruck down under the rirst strei-
tr," ur"*i 

"ii,lring (l) a racially moti native: intentional discamiiat-i; -J8s
v3ted gerrymande.," o"' 

" 
- 

prrn 
''a."*- found' "The district court determined .

"Png 
r;;i"iii'ril, ,.,c, t v. Rockefele) that.the countv c,ommissioneo;"fpo'"tior-

l?y'316 u.s. 52, ea S.6t. eos, 11 i.;fi; 3:',! *T de{gnd precirely to diiute the
512; Gomillion v. Lightfoot, rs60- s6a Dlack-r'ote 8nd we find no nssson
U.S. 339, 8l S.Ct. tzs, s Lea.za'rii; on this record to reject that conclusion as
Sims r'. Bagptt, u.o.elr.ifi, ili clearly enpneous." 505 F2d "t 6?9 i";-
signedly or otheru.ise, a[n] 

"; 
under the second alteraative aia il on ifr"

portionnrent scheme, under the circum- basis of Zimmer. Wallee ,. IIrr*,- ifi
stanees of a particul". *, *rrfJ'"p""- !'2d at 623-24; Mnrc v. Lcflote hrri;
ate to mrnimize or cancel 

"rt tf" ""iiis 
Boatd of Election C'ommissionen,fi'2FIA

strenglh of racial or political 
"ru."nt" o? * ,9%-?t ef' Ferguson v. Winn pa?isi

the voting population." gr*, u. 
-Ri"i- Polie Jury, 5Al F.At at 5g&-9g. We hold

ffi'U.fi,'f*li ;fu "##;il
ymb u.- Chavis, lg?1, 408 U.S.-\Z, fli_ eri J-
144, 149, 9l S.Ct. 1858, 29 L.Ed, gA. eflr6ft_I-intcnt was prcaent in each of

Idt at {?-S (emphasis in original) (foot- ll"*.3*-'- Finally, cases finding * ailu-
note omitted). 

' 
S;bsequent decisions have tion, like Howad v. Burd of Suh"r,isoo,

TlFot"a these standards. p";i;;;.;;;- Panoir v' Ibrville Parish scboor E;rd,;;;
vi,e parish *boot Boa,l, 5g6 F.2d 

-i;i Bndas y. fupidu parish polie Jury,.exr-
r0r-{5 (Sth Cir. trt6)t F;ryrso; ;.- i;;; .not ertablish the propoaition thet intenr is
SSL Polie Ju4l sa Fia ssz, 

-sgf,i; unneoe8ss4r to meke out e dilution crre.
(oth uir. 1976); Wallae v. House, Els F.2d Having determined tbat pleintiffs mrut619, w-8 (sth Cir. tszs), vrca,t*d eni make e ihowing oiintcntlonel dircrimina-

fi td,IT"T ;'LTf ii,i,tr 
-1 _i#* x1',n,T:'m;*ll,*lm,#,f H:v' fupidq Paish porice 

_Jury, d,0B F2d uigite. showing, ;;;;; tum to the specifics1109, lll3 (Eth cir. rytS); tubiis;;. crr_ of thig .*" ;';;;re it egrinat ttre stsn-y.issigy3n hurt, ffi FZJ AZl,6?8 ,. I d; derdr we t"r" li*.ilt"a.Cir. 1974); lloorc v. Leflorc Ar;;; -B;;
of Ebtion c,ommision_e.n, wz Fzd Al, III. The District htrt,s Findingl of Fut@-21(5rh cir. rrr4); zimmo,4s5 Fr; t29l IVe now address ttre second issuel$4. nieed oa qppeal: whetber the district



x26 5?T FEDEBAL IEFOETE& 2d SERIES

@urt'! finding! of fect witi rcepect to the
Ziaw crit€rh ane ernon€our. We murt
prcfrce our inquity with th€ principle tbt
tbe dirtrict @urt'! deterurinationr under
the Zimmer crit€ria will stand, if rupported
by sufficient evidence, unleel clearly em>
Deo,n Fed.RCiv.P. 64e,); Hea&ix v. Jo
*pt, 58 F2d 1266, fzGB (Sth Cir. l9t1l);
Gil}cft v. Sturct\ 509 F2d 1989, lggg (5th
Cir. 19fs); s M&ill v. Gadsrrn hunty
0ommision, st}S F.zd Zn, m (5th Cir.
fyl6). Additionally, the panel hearing t}is
ctse on the fi..st appeal had occasion to
examine the district oourt's findings of fact,
which brve not been augmented by any
new evilence on remand, and it detcrmined
that {aJone of the findingr of fact, con-
ailered reparately fium the intermingled
conclusbns of law, can be ret aside as cl€er-
ly errooeoua" 583 F2d at 196{. We ec-
oept rhh court's prior appraisal as law of
the cac with respect to the factual matters
detcrnined by the district court in its origi-
nal, FebmarT 20, l9?5, opinion. See Carpr,
Inc. v. Ward Fds, Ine., fi1 Fzd lg16,
lSllt'3?J (sth Cir. lVlS); Lincotn Natiootl
Life Imutzae C,o. v. Rrrcs,th, 806 F.2d ll0
(sth Cir. 1962), ert denid, BZ2 U.S.912,89
s.cL 75,9 LEd2d ?20 (1963).

t30I The only question rcmaining, then,
is wh€ther the latest, June ll, 19?6, firrd-
ings of the district court are consistent with
its prior findingl. f,ie proceed by exam-
iuing the district @urt,s determinationa un-
der each ol lhe Zimmer criteria that appel-
lants'ehallenge on this appeal. First, how-
eyer, we think it profitable to take this
opportunity briefly to discuss whdt Zimrrcr
rcquinea of a trial court in a dilution ea*.

f-ft- uhinate irsue in a case alleging un-
I constitutimal dilution of thc votea of a

/ rtdd gup b rhethor ths eicdry ph!
I under !|tr.k exists because it was intendcd
\ to diminbh or dilute the political efficary of

,a A',G notr in Blects lJnlt'd fot Lasting
Lqdrrlrillo lnc- v. CityofSfrrlrCpoA S?l Frd
zl/i., 2S n. 6, (Srh Cir. l97t), &pcndcnt
upoa ric orturc of thc scheme under: attack,
oot dl d thc criteria may be relcvsnt, .nd
ddttlAo.t factoB may have probrtivc force.
Notxritbtra.rint, the multifector tcst estrb
[.hcd h ?Jawr lr thc touchstoflc in diluftm

that group. Zimmer eatsblbhe! oertain aru-
bissuea, tlte criteria, that a trial court must
ddreq before it can rcach the ultimate
irsue of dilution. In essence, the criterie
arc directions thst t€ll the trisl court what
type of circurnstEntial evidence can meke
out e dilution ease. The court must addr€st
each gubissue, if rclevant to the particular
case at handP and determine whethcr the
evidence under that criterion weighs in fa-
vor of or against a finding of dilution The
court is next to view the findings under the
criteria as a whole, i. e., ..in the aggregate,,'
Zimmer,48s F2d at 130.5, giving due re-
gard to the significance and stren6h of the
finding under each subissue, to determine if
the ultimate infer.ence of dilution is permis-
sible, and, if so, whether the evidence ptB.
ponderates in its favor. See B/acks U;itd
f.o-r Lasting Lcadenhip, Inc. v. City of
Shrcveprt, 5?f F.2d at ?f.l. ,,The pmcr
ess does not differ frcm that of inferring
ultirnate facts from basic facts in othei
areas of the law. It is grounded in an
experiential, intuitive assessment of the
likelihood that the decision was designed to
further one or another objective.', Brcst,
Palmer v. Thompson: An Apprcach ta the
Prpblem of Unconstitutionel l*gislative
Motive,l97l Sup.Ct.Rev. 95, l2l. We think
that the district court in this case prcperly
followed the mandate of. Zimmer and coi-
rectly applied its test, and we turn to the
findingr of the district court that appellants
question here.

The district court held on remand that

court's earlier opinion notad that in
1968 six blacks won election to the oouncil r
but that in 1972 blacks failed to win any of
the eight seats tlrey contestcd. The ourt
attributcd the marked dirperity in tbea€
result8 not to any invidious racial discrimi-
nation HErather to the failure of blaclg to

cases, and the triel judge must look to it for
guidance in determining what subissues mey
bc appropriate.

2{. Seven black crodidates quatificd to run for
city council in 1966. All but the c.ndld.t lor
council prcsident prevailed

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NEVBIT v. SIDES
Ci..! t7l Frd 2at (tr{rt)

227

turn out a higher percentage in lg?2.! The tot8l l8ck of responriveness mercly besuse
tctimoay of one of the witnesses was citcd therc were no blacks on the citf coqncil."
el "quite candid in saying that The ponel on f6st appeal found ihe district
hre was no difficulty in qualifying to run @urt'g {gtermination not to be clearly err,o-
I* }be 

city council.fuTh-e witnegs went on neoru, lnd ttre finding on rpmaod of ouffi_
to Chsrsct€rize the tisk facing a csndidst€ cient respoaaiyeneEs on tU" p8r.t of tle city
T iereutially . - . a mrtter ef get -cqmit f onrtrtont.wiU thst d"t'..b;dn3 out the vote, of getting more votes don. Therufore, thc finding n.ct ,1&d.^\rn the opponent or opponents did."

Given these findings, which our prior bffi ff',JT*,,*fTt1T"""r,"H;pauel found to be valid, we cannot rule the
district @urt's conclusion of accessibility 

@urt'8 conclusion that 'plaintiffs have not

clearly erroneous. The success or failure of ptuvcd that p88t discrimilution precludes

black candidates appears to depend not the effective participatioh by blacks in the

upon any barriers to access to the slating or election system'" The parties did not intro-
registration stages of Fairfield's politlcal duce evidence oncerning the existence of
process€xr but upon racially polarized voting rzcial motivati'on in the ryfsgc of the orig-
in an atJarge ."ttirg ana ile shifting racial inal, 19G) version of the districting legisla-
makeup of ihe voting population. tion'' Furthermone, as noted, the appellants

The district @urt's opinion on remand 
failed to oupply the court with any substan-

states that the appellants have not demon- 
tial evidence of past discrimination relating

strated unresponsiveness by city officials to to Fairfield's electoral slntem' sinoe the

the needs or brack residents. ihe orisinar llfflil"Jfi1J,l"TJt:iltTSf,,ilfopinion contains findings that "blacks have
gotten far more responsir.eness from city crimination tlrat precludes the effective

council when there were blacks on the city participation of blacks in the electoral proc-

council." The court als<l noted, however, ess today'r Mccill v' Gadden hunty C'om-
..that blacks have not had the door com- mission, SBS F.2d n7,90 (bth Cir. 19?6),

pletely closed in their faees insofar .N ex- the district @urt's conclugion in its mone

pressing their opinions at city council meet- rccent opinion that such preclusion has aot
ings, in seeking assistarrce, prescnting peti- been ahown to exist must stand as well.

tions, being heard, and on some occasions We note that not all the district @urt's
being given what amounts to private audi- findingt under Zimmer have been chal-
ences for the presentation of these mat- lenged in this appeal. The appellees do not
t€rs." And finally, "the court has sensed challenge the finding that the state policy
that some of these requests have gotten behind at-large districting is tenuous, nor
snswers, not to the same degree that the do they dispur,e the district court's finding.s
witnesses or that the black communities as under the enhancing factors: that the dis-
a whole wanted, but there has not been a Gct is large; that a majority vote rcquire.
25. As the district court stated in its opinion on removed, and the effects of past denial of rc-ttmand, "[t]he ftilure to elect any blacks to the cess dissipated. that there was presently equrti-thirteen memb6r council in lg72 was not the ty of ecclss.,' Id. et l{4{5.' ftre re,asiningresult of past discrimination, but rathGf the leading to the placemmt of this burdco oiconseguence of (a) a faiture to tum out r high- dcfendants is noi apposite in this case. Thacncr pcrccntage of black voterc tlnn of white

yotirs, (bv iroc votins, and (c) dl*Br votins :*"Ji'*.fP$Xf,Jti:ffi$1?j5:*1for numbcred ptaces." lntcntlonsl dscrlmination . Id. at 111. Fur-
2C We are fully aware of the naccnt hotdtng in th.rmorc' tlrc intentiond ditc'riminrtidl ses

Ki*sey v. Bd. of Supervisors, 55;{ F.2d 139 (-5rh rlrcryn to htve continued to within r few yurs
Cir. 1977) (cn banc), en. &n/f,d', 

- 
U.S. of the preccnt. ln this casc, however, the ep

-,98 
s.Ct.5l2, s4 L.Ed.2d {5{ (197?), that pellents havc not demonstreted penardve dis-

rcquired the defendants in thst css€ to berr the crimination h Fdrfietd's etccioral proccra in
burden of coming "forward with eviddrcr that thc prrt. rcEora or nacent.
oouSh of thc loddents of thc prrt had becn



aa
ncot erietr, but tlret since only two candi-
detca nrn for virtudly dl positionE tbe
rcqrdrcnent b'for dl pmdticsl purpos€s Do

dif,fcr=nt from a plunlity vote requirr+
neot"; and thrt ttre Fairfield plan requirce
crffi,tea to nrtr fon numbered pooitiona
Nor do the eppellpntr challenge the finding
thrt there ir a reridency requirement in
Feirfield's plan. Since thee findingr have
mt, beeu disputed, they are not open to
qnedbn on apped.

t3l,32] We find the digttict court's fac-
hnl detenninationr under Zimmer not
cledy ernoneou!; thercforc, the only pri-
tury factor that we take to be established
ii tle appellants'favor is the existence of a
tenrrus state policy behind atJarge db
trkting. The dbtrict court found thir
shoring, "[e]ven whn'enhanced' by two or
ptrdtrly tlrree of tlp 'extm' factor8," to be

'insrfficient'in the aggregate' to esttblbh
r crlc of 'dilution."' C,ons€quently, our
only rrcmeining task is to det€rmine wheth-
c'r tLb conclusion ir correct as a matter of
lrr-

ry. TIle District C,ourt's latnrprctstion of
Zimmer:nd Suhoeguent

Dilution Ments
l}c find irsue we must address is wheth-

er tle district court's conclusion that dilu-
tllD brd not been demonatrat€d rcprcs€nts
r prper interprctetion of Zimmq and oth-
er rpplicable case lew. We note initially
thrt tlre district court properly followed the
inrtnrctions in our prior opinion in this csse
to b.!e itr conclucbns "on;@g1l4giilhlt

.- Ziamet dFtilled fmm
Whibv.rc
ffi'5$gP2detl366.
The dbtdd court hes made specillc find-
iryr ritf tqudrlo €lrh of th* dilution
critrril.

We find &o thrt th€ court properly ap
Fr.ted thc trtk of weighing the Zimner
ltut* Ar re brve ilrt€d, the tark befor:
thc drtrict court i! to deterrrine whether
t.hc criterir in the agregste indicete e re-
cir$r notivrted dilution. The dirtrict court
crcctly perfomcd it! trll when it pm-
aGdd fion tle und€hltsDding thrt "'dihF

57T FEDENAL NEFOnilEN,2d SEruEI

tion' is to be defined eltbe'r33rqjta'of
tfi;lie fectors outlined ia Ziaw, bearing in
mind thet'ell of theae fecton nced not be
proved in order to obtein relid.'' f\rtber-
more, efter concluding thet of the pimrry
factorq the sppellant! hed estl$jtbod..dL
the exbtcnce?I-r6ffi mlkr-th \
cou nt \
'in the aggregate' under [the fram*l ai- /
t€ri8 to estsblbh a care of dilution.'" /

tr8' ffl We find the distrid ourt'r con-
clusion wholly comect. Sfe camot say tlat
a finding of a tenuous state policy behind
atJarge distrieting, standing alone, makea
out a case under Zimmer or 8ny other on-
trolling precedent. In the abseuce of other
evidence indicating the existence of inten-
tional discrimination, state enactments pru
viding for at-larje districting lp entitled
to the deferrnce afforded any other statute:
their means need only be reasonrbly related
to ends prcperly within state cognizance.
E g., Ohio Burcau of Employneat Sern'es
v. Hdory, $f U.S. 471,97 S.Cr 1898, 1910,

SzLFaZlSfB (197O; F. S. tuyztcr Guuro
h. v. Virginia, ?53 U.S. 412, 415, 40 S.CL
560, 6,1 L.&1. 989 (f920); Lind.tky v. Netu-
ral Carbnic Gas Co.,220 U.S. 61, ?8-?9,31
S.CL &n, 55 LEd. 369 (l9ll)r That t}ese
minimal constraints 8Fe sstiEfied by state
statut€s providing for governmeat by rcp
rcsentativ€E elected at large b beyond dis.
pute. The Supr.eme Court aad this cireuit
have repeatedly rejected contentioru that
at-large districting is per se unconstitution-
81. E. g., Whitc v. fugester, {12 U.S. at
?65,9:l S.CL 2&12; Whitnmb v. Chavis.$
U.S. at 142,91 S.Ct. 1858; Lipmb v.
Wire 551 F.zd 104l}, 1046 (5th Cir. 19f7),
eft- grzntcd, 

- 
U.S. 

-, 
$ S.CL ?16,

5{ L&l2d 750 (1978); Turner v. McKeith-
ea, 100 F2d 191, 196 a. 23 (5tt Cir. fgD);
Zimme.r,186 F2d st 1&)1.

Tbe queation whether ths gnhincing fro*
tors found'to exist are suffrbat in thil
c8ae, when aSCr€g8t€d with the existeuce
of g tenuous state policy, is r fi.tud i.rue
that must be resolved by the district courL
Given the inability of the appellentr tD €r.
trblish any additiond crit€dr thrt would
hnd npport to en inference of rzidly no-

tive
tion

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NBYEIT v. SIDIXI
CL..tlrl FraL (t]7t) ZN

tivct€d dilution, tle tri8l court's determina- decision in t}e ligtt o{ the priuciplo !hr.d
tion murt stend. in tlre opinion 

"( th" C"im ; ADp-t".
f The appellants did not demonstrete a hck Due to imnrinent dcadlinc for conpliue
I of ecoerc to the politicel prccess€s in Fair- with election law predureq crrt erguncnt
i field. They did not est8bliBh that tlre com- ras, rith ofilent of th puties, imCi-
i alden ii unrqorivc to tbc nc.d. of rt*ydoduhd. Shtpmrnfunl1b
; tle blsck oornmunity, and alt}ougtr this nentr (and, to tlre extent inconsbtcat, m-
; fellurc doea not preclude a finding of dilu- penedes) the earlicr findingt end orlu-i tion, V&ill v. GaMen hunty @mmisslion, rionr of the court, rhich will not bc rl-

835 F2d m, m n. 7 (5th Cir. 1916l; Zin- peatcd.

i mer,485 F2d at 1806-{.7 n. 6, it weighs
I tority egainst an infer.ene of intcntioial
I aiscrlmination because the incumbents arp- not visibly exploiting their majority status

to the detriment of the minority constitu-
ents. No residual effects of past discrimi-
nation were found to preclude the effeetive
political participation of blacks in Fairfield.
lndeed, sir blackE were eleeted to the city
council iu 1968, and the digtrict court found
the failure of black candidates in lg?2 to be
due not to invidious racial diacrimination
but to a failurr to turn out morc of the
black vote.

Under these particular circumstances, the
district @urt's conclusion that .,there has
been no evidence that the claimed .dilution,
was the rrcsult of any invidious discrimina-
tory purpee" (citing Davisl is wholly war-
ranted. Tbe failure to ertablish the exist-
enoe of intentional discrirrination follows
naturally from the factual determinations
under Zimmer in this c8Ee.

This ease, then, falls squarely within the
principle established in Wight and rcaf-
finned in Danb md Artiagtnn lleight* In
the aggr=gat€, the Zimmer criteria do not
point to a ncially motivatcd dilution. Ab
aent e showiag that intentional discrimina-
tion was e notiveting factor in either the
eaectment or maiatenence of the plan,
tleae appellents cennot sucoeed.

The district court'e judgment is therefore
AFFIRUED.

APPENDIX
Itc Opilion of tJre District Court
XEIOBANDI'II OF OPINION

Thb ourL undc t.he mrndate reeiyed
June lQ 19116, b to ruonsider its eerlier

Th€ fht terk is to male spccific findingr
witb reapect to the four principal f.cton
outlined in Zimmer v. tcKeit}rcn,l8S Frd
1297, 1305 (CA5 lm!), es the criteria for
detcrmining "dilution ".

(f) The plaintiffs, blacka reaiding in
the City of Fair{ield, have not denon-
str&t€d eny lack of aoceas to the pmo.q
of alating candidates for city elections;
for in Fairfieid there has been no such
slating. Perhapo more to the poin! tbe
evidence has not shown thet blacks in
rceent years have been denied acceas to
participation in any par-ts or phasea of the
election process€E in Fairfield, e. g., queli-
fyng as candidates, campaigning, voting.

(2) It has not been demonstnt€d tht
there has been "unrespongiveneEs" by city
officials to the "particularized needs. of
blacks. This is not, of oourse, medy a
question of whether the city officiels
have listened to, and given rome !,nsyer
to, the special requests of thd bladr citi-
zens of the city. Nor is it e question of
whether thoee officials have always om-
plied with thooe rcquests. Rather, the
standard involves an inquiry into wbetler
the officials have rcacted to thore nee&
with sympathy and concera<uch er
would be expected of penons holding a
public trust for ell tlre citizenry of e
oomnunity, sho arc ultinrtcly muute.
ble to ell the voten at tbe next electim.
While the evidence hes ghown thst bhck!
have fared lers well during an ell-white
city administration t}an during r ncirl-
ly.rnixed sdministrstion or thrn uudor
the hws of chance, it hrs Dot elbblbhod
{unrerponsivene8!" under thir rteodrrd.
In this rcrpct, it ehould be notod tbrt the
inqurry is dirctsd to ..unrraponriverur,,



230 57T FEDERAL REPORTEN" Zd SEnIES

APPENDIx-f,ontinued vote rcquircment is for practicar purpcgrcferring to a state, condition or quatity no different fipm a plurality vote re-
gf- be]1g unrcsponsive, and is not estah. quiremenL
lished by isolated acts of being unrespon-

(g) Under state law, cities of the size of provision since candidates run for numl
Fairfield are permitted to diyid; t11g "ftt 

bered poeitions. The numbered position'
into wards una to decide upon the num"- approach does have some of the same
ber of such watds. If more than seven consequenoes however as an anti-oingle
wards arc cr.eated, then each *"oa, Uy shot, multi-member race; because 

" 
coil*

vote of the ward, will elect a single mem"- sive minority is unable to cuncentratc its
ber to the city council (with the prrcsident votes on a single candidate. The num-
of the council, and perhape other mem- bered position approach does, however,
bera being elected from the city at-large). eliminate the problem caused when a rni-
If less than eight wards are crcated, then nority group is unable to field enough
all members of the council will be elected candidates in anti-single shot, multi-nem-
by atJarge vote, with two members being ber races.
resident of each ward. In vid.r of this
optional dichotomy, it cannot be said that 

(4) There is a provision' a requiremen",

tiere is a state poiicy ravoring at-rarge or ::::Jiiu}t #ft'1il"''*ffi"f.":5*?multi-member districts for city council in dent) be residerts"of particular geograph_preferrcnce to single.member ward-elect-
ed districts. (proof that there is no such 

ical suMistricts'

etate policy should suffice to establigh When this court entered its earlier deci-
that any such state policy is "tenuous".) sion, it did so in the belief that ,,dilution"

(4) The plaintiffs have not proved that was established upon pr.oof that (a) in a city
past discrimination precludes the effec- where blacks constituted a majority of the
tive participation by blacks in the election voters in some of the districts but-slightJy
syst€m. The discrimination made known less than bM of the voters for the citfas ato the court oredated the elections in whole, (b) where voting rather strictly fol_thS, in which six of the rB persons elecL towea racial lines, (cf a ..winner-take.all,,
ed to the council were black- The failure eletion system by at_iarge voting for num-to elect any blacks to the thirtcen mem- bered places 

"outtea 
in practice (d) in aaber couucil in lg72 was not the result of all-white governing body, (e) whose deci-pest discrimination, but rather tJte conse sions, though withirt indication of fraud orquenoe of (a) a failure to turn out a bad faith, luitc understandably t€nd€d tohigher perrcentage of black voters than of reflect their own perspectives and the atti-white votera, (b) broc voting, and (c) at- tudes of those wio 

"r""t"a them, to theIarge voting for numbered place* relative detriment of the black minority, (f)
Nert, the court is to meke specific find- including sueh matters as appointm"nt t"

ln8! on tbe "enhencing factors'; outlincd in other boards and agencies of ihe city. Th"
?lyry v. te.Keithe4 supz',486,,f3d et court was of the view that such eviderrce1315. demonstrated that the black plaintiffa ,.hd

^ 
(r) Since t}e pert dcotbr hre .b*n lec opportunity than did ottrer rrsidents in

ry-.tho1citt..t,le{gq, thc d.3j5p* tlrg didrict to'participcte t; th"-ild-l
triot murt be coasidercd "hlge'r,rt leart prcoess€s aad to eleci legislators or u.i,in r relstive g€Dsc. The dirtrist ir es 9!9b.1' whit. v. B,,gat,.r,4l2 u.s. ?bs,
lerge aE it cen be. : ?66, sg S.Ct 23sq &g, sz L.Et-zd g14

(2) There ir a majority vote requirr* (ltr7s). The court ihought that the factorsrneol where, however, as in the rgl2 outlincd in zimncr were to be taken aselection, there are but tuo people mn- indicir of-but not necesssrily tlle determi-ning for virtually all positionr, a majority nants of-.,dirution,,.

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NBYETT % gIDEg
Clltlrl frata (l]?t)

231

APPENDlX{.ontinued
Tbe court now understands that itr ep

pruch vas in ermr and that "dilution" is to
be.defined as the "aggregate" of the facton
outlined in Zimaer, bearing in mind that
'dl.d tleae fectorg need uot be povcd h
od€r to obtein relief.' lS5 F.ad et 186.
It appeare tbet only one of tlte four primery
fector+-number (3Fhas been eatablisH
by plaintiffa. Factors (l) and ({) have
clearly not been proved. The evidence rc-'

specting factor (2) is mixed, but, using what
tlre court believes to be the apprcpriate
meaning of "unresponsiveness", this factor
has likewise not been proved to the court's
reasrinable satisfaction.

Even when "enhanced" by two or possi
bly three of the "extr?" factors, proof of
factor (3) is insufficient "in the aggregate'
under these critcria to establish a case of
"dilution." Aecording'ly, the court finds
and concludes that ther.e has not been
ploveri an impermissible dilution of black
votes under the existing Fairfield system.
It ma;' be noted that there has been no
evidence that the claimed "dilution" was
the result , I ary invidious discriminatory
purpc:e. ff Washinglon v. Davis,426 U.S.
229, :,o S.i 2040, 48 L.Edzd 597 (1976).

J', I r':ent in favor of the defendants will
be ente'r.i by separatc order.

This the llth day of June, 1976.

/e/ S8m C. Point€r. Jr.
United Ststes District

Judge

WISDOM, Circuit Judge, specially con-
curring.

The intent ie esteblhhed by e rbowing that
there exists en 'aggrc3rle' of tlrc frctors
outlined in Zimarer. The frtfinder detrr-
ninc+ "under 8ll tle rdevent fecte, in
wh frvor ttre'e3gre3atc'of t}c evidetr€
Fn ded..." (ifh€ nriri$t furr aot
*Urofq itr emplrr- m iatsut rs rn
eantial element in e bolding ol dilution, ir
on ttre offcctr of et larye voting or nulti-
nnmber dirtricting on tbe mibility of r
minority gmup to the politicsl procear.)
Then, if invidious effects prcponderate, the
court by infercne declarea th8t the legisla-
tive body which initiated the plan had a
ncially dircriminatory intent. If for histor-
ical or other reasons tbe voting rcheme
could not initially have been motivated by a
racially dircriminatory intent,

as in Shreveport, then failure of the legisla-
tive body to take affirmrtive curative ac-
tion demonstrates, under Ki*rey, r illegal
intent to maintain dilutcd voting rights.

I find it more otraightforward, and not
inconsistent wtth Washington v. Davzs and
Arlington Heights, to hold that the four-
teenth amendment, througtr the equal pro-
tection clause, and the fifteenth arnend-
ment, in itself and througt congressional
statutes enacted to make the amendment
effective, prohibit dilution of voting
rights--without pnoof of ncial discrimina-
tory purpoee. I agree, thercfore, with the
pr.tion of the Unit€d StrteE, as expressd
in tlre amicus brief of the Attorney C,eneral.
And in the field of civil riSttts I rccogrdze
and would give weight to the expertise of
the Department of Justie.

I eoncur in the results the majority reach-
ea in tlree of the voting diiution cases I'
decided today: Nevett v. Sides, 5?1 F2d la Fortsn v. Dor*y,1966, S79 U.S. {89,
2/09; Thomasvitle Braneh of the NAACP ,189, 85 S.CL ag8, 501, 18 LEd2d {01, the
v. Thomas htnty, S?f F2d ?57:- hldea Supeme C,ourt ssid:
v. City of Mobile, 57f F2d 238. I cennot 'It might well be thet deaigredly or oth-
find as much between the linea of Lfu Zim- eneix, e multi-mernber constituency ap
rner opinion as the majority finds, but in portionment rcheme, uader the circum-
view of Washiagton v. Devis nd Atlington rtancer of a particular crr, wottld oper-
Heights I understand why the mejority rtc to minimize or crnel out tbe voting
ahould reek and find dircriminatorA intcnt. rtrength of recial or politicd elements of
The mqlority bolds tbrt those two irnpor- tle voting population. This
tent cars rpquire proof of a rzcielly dir gucation, however, is not preaentcd by the
c,riminatory intcnt in voting dilutior caaea. rcord before us." (hpherir rdded).


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