Jordan v. City of Greenwood Federal Supplement Court Opinion

    I have
df Illi-
i'to be
I with
or the

{vided
*ision
It for
,t 991.

irness
mined
ption
busly
d dis-
hat a
I rea-

been
I the
rs of
s in-
lgof
f,air,
this
will

et it
l8(e)
e, it
DE.

. en-
,,27,

a

JORDAN v. CIff OF GREENWOOD, MISS.' Or.sli9iFSupp.i97(t9St) 397

re}
.tD
hrle

Devid JORDAN, James Moore, Robert
Slms, and Sammle Lee

Cheetnut, plalntiffs,

v.

CI'IY OF GREEI{IVOOD, MISSISSPPI;
Clay Ewlng, Mayor, Sam Bass, Coml
missioner, and Charlie tyright, Com-
miesioner, individualty and in their oi_
ficial capacitiea as Members of the City
Council of the City of Cr*nrooa, Ciiyof Greenwood Municipal n"_"cr*i"
Executive Committee; G. Hite M"I*"",
Chairman of the City nemocratic Oxeil
u-tive Committee; City of Greenwood
Municipal Republican Executive Com.
mittee; Porter peteet, Chairrnan of tie
gity Republican Executive Committee;
City of Greenwood Munieipal Election
Commigeion; Ms. AJ. nrewerton, ttte.
AC. Snetlinga, and Me. Frances frpp"i,
Membere of the City Etectio" Cil;il.
rion, Defendants.

Civ. A. No. GC?Z_82_WK-P.

United States District Court,
N.D. Mississippi,

Greenville Division.

Juty 25, 1984.

- 
Action was brought on behalf of black

residents of a Mississippi city 
"f,affensin;the city's atJarge commission fo.*- o?

government under the Voting Rights Act.
The United States Distri"t dr*i f*-ii"
Northern District of Ui".ir.ippi, iia
T.lrrt. t35t, entered judgment irr ;;r;;;
g."r."ng"lt , and plaintiffs appealed. The
United States Court of Appeals ir" ;;Fifth Circuit, Zlt F.2d OOi,' ,"""t J "Jremanded. On remand, the Distriet d;,
Keady, J., held that Mississippi .ity,. i"rnl
mission form of government with three
counsel members elected at large 

"iofat"JI:ring Rights Act where it wai ir".*p"-
bly elear fmm a totality of tle circumsta'nc-
es that black voters of the city had lessopportunity than whites to participate in

the political p"o*eis and to eleet rcpresent-
atives of their choice. - /

.Judgment 
in accordance with opinion.

l. Elections Ff2(g)
.. "Results', test, applicable in vote dilu_
Io, 9s", focuses;uaiciat inquiry ,, 

"i1""-tive faetors eonceraing totality of .ir.,ir-
:.Pr":. bearing on prcsent ability of ,i-n*-rues to participate effectively in the potitl
cal process, rather ttan *otiu"i;;-#"il;
Iawmakers in enaeting or maintainirg ;;challenged practice.

2. Elections ef2(g)
Factors relevant to the .,totality of ttre

cir.cumstances,, inquiry in ,ot" Affutiln'
case are: extent of any history of official
discrimination that touched *," 

"i*f,i-"imembers of minority gmup to resister.
vote or otherwise participate i, a".i""ti"
process; extent that voting is racially po
larized; extent that state or political suf,dl
vision has used certain voting po.ti"", o"procedures that may enhanci ,o**"riW
ror olscnmination; whether minorities have
been denied access to eandidate slatins;
cess; extent minorities bear effects of ai._crimination; whether political orp"ig^
have been characterized by o"""t;;;;;t,"
racial appeals; and extent that members oi
11ori!V group have been elected t" p;i;
office^in their jurisdiction. V"il;-{;l;
Act of 1968, S 2, 42 U.S.C.A. S tg?e.--'"*
3. Eleetions eIZ(g)

. - 
In a vote dilution case, e defendant,s

evidence of responsiveness is only .f"r"nt
as- rebuttal evidence shoutd pr"i"r,tirJ*iii=i
offer evidence of unresponsiveness. V";;;Rights Act of 1965, S 2, 42 U.SIC;:s 1973. ,
4. Elections Gl2(9)

In a vote dilution ease under Votins
Rights Act, where blacks have--"';;;;
socioeconomic status t}tan *frlt". 

--"J
where 

_black political participation is Je-
pressed, plaintiffs need not p.ou" 

"nj fu.-ther causal nexus between the disiaralgocioeconomic status and the aupr"..iJ r"i



398

el of political participation. Voting Rights

Act of 1965, E 2, 42 U.S.C.A. S 19?3.

5. Municlpal CorPoratlons €=80

Mississippi city's commission form of
government with three counsel members

elected at large violated Voting Rights Act
where it was inescapably clear from a total-
ity of the circumstances that black voters

of the city had less opportunity than whites

to participate in the political process and to

elect representatives of their choice. Vot'
ing Rights Act of 1965, S 2, 42 U.S.C.A'

s 1973.

Willie J. Perkins, North MS Rural Iregal

Services, Greenwood, Miss., for plaintiffs'

Steven H. Rosenbaum, Voting Rights
Sec., U.S. Dept. of Justice, Washington,

D.C., for plaintiff-intervenor.

Billy B. Bowman,
Bowman, Greenwood,
ants.

Deaton &
for defend-

MEMORANDUM OF DECISION

KEADY, District Judge'

This action on behalf of black residents

of the City of Greenwood, Mississippi, chal-

lenging the city's at-large commission form

of goverament is before the court on re-

mand from the Court of Appeals vacating

the prior judgment of the district court
entered March 23, 1982, Jordan a. City of
Greenwood,534 F.Supp. 1351. The eause

was remanded for further consideration in

light of Section 2 of the Voting Rights Act
of 1965 as amended in 1982, 42 U.S.C'

l. The amendment reads as follows:
(a) No voting qualification or prerequisite

to voling or standard, practice, or procedure

shatl be imposed or applied by any State or
political subdivision in a manner which re-

sults in a denial or abridgement of the right of
any citizen of the United States to vote on

aciount of race or color, or in contravention
of the guarantees set f();'lh in Section 4(O(2)'

as provided in subsectir':' tr :'

(L) A violation of subsc:''ion (a) is estab-

Iished if, based on the ln:;' 'i of circumstanc-
es, it is shown that rl''. :- 'ltical Processcs
leadinc to nomination or ci!'tron in the Stale

699 FEDERAL SI'PPLEMENT

5 l9?8 (Supp.1984); Jord.an a.

Greenwood ?11 F.zd 667 (6th
City of

Cir.1983).

Following a status conference held after
remand of the case, the United States, on

December 28, 1983, was permitted to inter'
vene as a plaintiff to address the single

issue of whether Greenwood's at'large elec-

tion of eommissioners violates amended

Section 2. Both the Government and pri-

vate plaintiffs contend that the election

system is unlaw.ful since under the "re
Bults" test of the amendment black voters

are denied equal access to the political pro
cess and to elect representatives of their
choice. After the close of discovery on

February 10, 1984, defendants decided not
to contest the issue, but were unwilling to
concede liability. In June 1984, the parties

filed a lengthy Stipulation of Facts (herein'

after "Stip.") that supplements the record

from the first trial. The parties have

agreed to forego an evidentiary hearing

and submit the case for decision upon the

previous record and the additional stipula'
tions.

ll,2'l Prior to June 29, 1982, amend-

ment to Section 2 of the Voting Rights
Act,t plaintiffs, claiming that an at'large
election system unlawfully diluted minority
voting strength in violation of the Voting
Rights Act, had to prove purposeful dis-

crimination in the adoption or maint€nance

of the challenged system, City of Mobile a.

Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64

L.Ed.2d 4? (1980). In March 1982, this
court held that plaintiffs had failed to es-

tablish that Greenwood's at-large election

scheme had been adopted or maintained for
racially discriminatory reasons. By the

to participation by members of a class of
citizens protected by subseclon (a) in that its
memberi have tqss opportunity than other
members of the etectorate to participate in the

political process and to elect representatives
of th"it choice. The extent to which members
of a protected class have been elected to office
in the State or political suMivision is one

circumstance which may be considered: Po-
vided, that nothing in this scction establishes

a right to have members of a protected class

clected in numbers cqual to their proportion
in the poPulation.

F!.1: T^":lJ ^20:, .5i r..=l"lli, 134, codi'

June
ly r€
elimi
plain-

nstio
16, I

Cong
Bteac
t'ttst

tt. Rt
L.Ed
inclu
rzp?
er 91

Scha
S.Ct,
No.,
test
fack
cuml
ofn
the l

moti
mair

TT

ing
"tatj

di
AU

m
t€
th

el
si

p(

la
qr

ol
tl
di

s

c(

tl
p



I'

JORDAN V. CITY OF GREENWOOD, MISS.'
Cltc ll 599 FSupp. 3Y, (tgta)

3gg /

I
i
I
I

I
i
I,
,

June 1982 amendment, C.ongress specifical-
ly rejected Bolden's int€nt standard and
eliminated t}re requirement that Section 2
plaintiffs demonstrste pur,poseful discrimi-
nation, S.Rep. No.417,9?th Cong., 2d Sess.
16, 27-30, reprinted in 1982 U.S.C,ode
Crcng. & Ad.News 1??, 193, 20447. In-
stead Congress restored the preBolden
"results" standard as enunciated in White
o. Regester,412 U.S. 755, 93 S.Ct. 2332, 3?
L.Ed.2d 314 (1973), and subsequent cases
including Zimrner u- McKeithen, 485 F.2d
ln1 (irh Cir.1973) (en banc), offd on oth-
er grounds sub nom. East Carroll Parish
School Board o. Marshall,424 U.S. 636, 96
S.Ct. 1083, 47 L.Ed.zd 296 (19?6); S.Rep.
No. 417, supra at27-30,32. The "results"
test focuses judicial inquiry on objective
factors concerning the "totality of the cir-
cumstances" bearing on the present ability
of minorities to participate effectively in
the political process, rather than upon the
motivation of lawmakers in enacting or
maintaining the challenged practice.

The Senate Report identifies the follow-
ing factors as relevant to tlre Section 2
"totality of circumstances" inquiry:

1. the extent of any history of official
discrimination in the state or political
subdivision that touched the right of the
members of the minority group to regis-
ter, to vote, or otherwise to participate in
the democratic process;

2. t}re extent to which voting in the
elections of the state or political subdivi-
sion is racirally polarized;

3. the extent to which the state or
political subdivision has used unusually
large election districts, majority vote re
quirements, anti-single shot provisions,
or other voting practices or procedures
that may enhance the opportunity for
discrimination against the minority
group;

4. if there is a candidate slating pro
cess, whether the members of the minori-
ty group have been denied access to that
process;

;- tir,- et:tr,;rl to which menilrers of
t:,, minorrlv group in the state or poiiti-

crimination in such areas aB education,
emplo5rment and health, which hinder
their ability to participate effectively in
the political process;

6. whether political campaigns have
been characterized by overt or subtle ra-
cial appeals;

7. the extent to which members of
the minority group have been electpd to
public office in the jurisdiction.

Additional factors that in some eases
have had probative value as part of plain-
tiffs' evidence to establish a violation
are:

whether there is a significant lack of
responsiveness on the part of elected
officials to the particularized needs of
the members of the minority group.

whether the policy underlying the
state or political subdivision's use of
such voting qualification, prerequisite
to voting, or standard, practice or prG
cedure is tenuous.
While these enumerated factors will

often be the most relevant ones, in some
cases other factors will be indicative of
the alleged dilution.

S.Rep. No. 417, supra, at 28-29, U.S.Code
Cong. & Admin.News 1982, pp. 205, 206
(footnotes omitted).

Congress did not intend these factors ,,to

be used . . . as a mechanical 'point count-
ing'device." S.Rep. No. 417, supra, atZg,
n. 118, U.S.Code Cong. & Admin.News
1982, p. 206. Nor is there a requirement
"that any particular number of factors be
proved, or that a majority of them point
one way or the other." Id. at 29 U.S.Code
C,ong. & Admin.News 1982, p. 206, (foot-
note omitted). ,Rather, eyidence about
these and otlrer relevant faetor.s is intended
as a guide for the court's exercise of its
judgment about whether "the electoral sys-
tem, in light of its present effects and
historical context, treats minorities so un-
fairly that they effectively )ose access to
the political processes." Jot,t, t. Citg of
Lubbock, 727 F.zd 364, 3!.J .,-, (5th Cir.
f98 ); see United -Sral,.. , llorengo
Countg Comrnission 731 l'.r" 1546 (llth



400

Although the "results" test under Sec-

tion 2 is besed on the legal standard exist-
ing before the Supreme Court's decision in
City of Mobile o. Bolden, supra, the Fifth
Circuit has noted a "subtle change in em-
phasis" in the statutory enactment:

First, Crcngress not only failed to follow
Zimrner's distinction between primary
and enhancing factors, but also relegated
two primary factors-unresponsiveness
and tenuousness-to secondary impor-
tance. Second, Crcngress has articulated
as an objective factor an evidentiary is-
sue-polarized voting-that this court's
preBolden cases had not treated as a
matter of primary importance.

Jones a. City of Lubbock, supra, Tn F.zd
at 384.

l3l The effect of these "subtle changes
in-emphasis" are relevant to the case at
bar. At the time this court decided this
case, the law in this circuit required plain-
tiff to prove unresponsiveness in order to
prevail in a vote dilution case. 534 F.Supp.
at 1362; Lodge u. Burton,639 F.2d 1358,
1375, n. 35 (5th Cir.1981), affd on other
grounds sub nom. Rogers a. Lodge, 458
u.s. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012
(1982). Now proof of unresponsiyeness is
not essential to a claim of intentional dis-
crimination under the Constitution, Rogers,
supra, 458 U.S. aL 625 n. 9, 102 S.Ct. at
3280 n. 9, and is of only "secondary impor-
tance" to a claim under the "results" test
of Seetion 2. Indeed, under Section 2 de-

fendant's evidence of responsiveness is
only relevant as rebuttal evidence should
plaintiff first offer evidence of unrespon-
siveness. S.Rep. No. 417, supra, at 29, n.
116. ln Jones o^. City of Lubbock, the
court of appeals affirmed a finding of a

Section 2 violation even though defendants
had been responsive.2 Thus, this court's
finding of responsiveness, 534 F.Supp. at
1357-58, by itself, no longer would support
a judgment for defendants.

2. The court of appeals ruled further that evi-
dencc of responsiveness does not overcome evi-
dencc of racially polarized voting. The court
na-;l thor {wllurhr ff n^t 

^ihr rrf6inirlc la

*'
699 FEDERALTSUPPLEMENT

The elimination of the "intent" rcquire.
ment of amended Section 2 is constitution-
al. Jones 1). City of Lubbock, 727 F.2d at
878.75; accord United States o. Marengo
County Comm'ission, 731 F.zd at 156243.

Our task, therefore, is to determine
whether the evidenee establishes that the
abovementioned objective factors as they
may bear on the totaliff of circumstances
invalidate Greenwood's at-large election
system.

A. Background

Since March 16, 1914, Greenwood, the
county seat of Leflore C,ounty, Mississippi,
has been governed by a three-member city
council that operates as a commission form
of government. The council is comprised
of a mayor and two commissioners who
serve concurrent, four-year terms. The
commissioners are elected from numbered
posts and there is no subdistrict residency
requirement. Under state law, a majority
vote requirement applies to political party
primaries, Miss.Code Ann. S 23-3-€9
(1972), and special elections to fill vacan-
cies, Miss.Code Ann. S 23-5-203 (1972).

On September 6, L977, a proposal to change
the commission form of government to one
composed of a mayor and seven council-
men, the latter to be elected from wards,
was defeated in a referendum submitted to
the electorate. No black person has ever
been elected to serve on Greenwood's city
council, although several have run for of-
fice.

Greenwood's 1980 population was 20,715,
of whom 10,460 (52.0%\ were black.
Blacks, however, were a minority of the
voting age population (a6.2%) and the regis-
tered voters (44% at the last municipal elec-
tion). Stip. ll 4, Ex. 1 at &

B. History of rocial discrimination
and its present dag effects

As this court has heretofore found, it is
well documented that a pattern of racial
discrimination in the past has existed in
kflore Countl', Greenwood. and Mississip-

ignore minority interests, pol:r.iza',icn neverlhe-
lcss frees them of politica! f.;r...,' ior disadvarr.
taging the minorrtr com_rnu:ii'r " 727 F.2d at
lnl

i
B
r
u
li
t,
tL
p:

e(
pl
8(
er
or
la
7':

F
ol
G,

er

ol
o
te
b.1

4.

rr'
tI
tI
lp
b]
ti,
ir,

G

tl
b1

8I
St

ly
cl
ci
8!
r(
ol
th
8r

b]
st

3.



JORDAN. v. CITY OF GREENWOqD, MISS.r Cttcrr!99FSupp.397 (l9Sa)
401

pi. Prior to the passage of the Votirlg nexations, likely would be appioachi\E tfi%
Rights Act of 1965, blacks in Mississippi of the City of Greenwood." Stip. lllt 19, 20,

were effectively disenfranchised through Ex.6.

,"

I
t
I

L ,{ *__--

the use of poll ta:res, literacy tests and the

like. 534 F.Supp. at 1357. This documen-

tation not only touched the rights of blacks

to register, to vote and otherwise to partici
pat€ in the political process but also extend-

ed to racial discrimination in education, em-

ployment, public facilities, housing, public

accommodations, and the provision of gov-

ernmental services. Stip. ll 3. In 1964,

only 2.1% of the non-white voting age popu'

lation was registered to vote, in contrast to
71.5% oI the registered white voting age
population. Stip. .lT10. Since the passage

of the Voting Rights Act, the Attorney
General has sent examiners to register vot-
ers in Greenwood and Leflore County and
observers to monitor elections in Leflore
C,ounty. All told, about 25% of the regis-
tered voters in Greenwood were registered
by federal examiners. Stip. ll 13, Ex. 1 at
4. Although the black voter registration
rate has increased substantially since 1964,

the black registration rate is still lower
than the white registration rate. As of
1983, 7l% of Greenwood's voting age
blacks were registered for municipal elec-

tions compared tn 8o% of Greenwood's vot-
ing age whites. Stip. lT9. Also, the City of
Greenwood acted contrary to Section 5 of
the Voting Rights Act, 42 U.S.C. 5 1973c,

by implementing two annexations (in 1967

and 19?9) without obtaining preclearance.

Stip. tT 19. These areas contained a virtual-
ly all white population and have been in-
cluded in municipal elections. When the
city on March 15, 1984, submitted the two
annexations to the Attorney General for
review, the Attorney General interposed an
objection on May 14, 1984, on the ground
that "racial bloc voting exists in the city
and that the addition of 1,059 whites and 64

blacks . . . reduces by 2.7% a black voting
strength which, in the absence of the an-

3. According to the 1980 census, only 24.9or'o of
Greenrvood's blacks, 25 years and older, have
completed high school compared to 68.5026 of
ti;, r': jres, l-i years and older. ln 1979,46.lVo
oi tl,: black families in Greenwood were living
h'';' :l'. poverty level compared to 7.1% of the

r r r:ircs. The mean income of white fam-

Greenwood's' black citizens continue to
suffer the consequenceg of racial digerimi-
nation. Socioeeonomic data show that
blacks are substantially disadvantaged
compared to whites in education, income,
poverty status, employment, living condi
tions, and health.t Stip. 111116-18. These
disadvantages have contributed to decrease
black political participation in Greenwood
and make that participation less effective.
Stip. Ex. 1, 2, 5(E). For example, the sta-
tistics on voter participation in municipal
elections (1969-f 9$) establish that
427*45% of the whites voted, in contrast to
the mean black voter turnout of 11.4% n
elections without black candidates and
23.5% in elections with black candidates.

t4l Under Section 2, where blacks have
a lower socioeconomic status than whites
and where black political participation is
depressed, as is true in Greenwood, "plain-
tiffs need not prove any further causal
nexus between the disparate socioeconomic
status and the depressed level of political
participation." S.Rep. No. 417, supra al29
n. 114, U.S.Code Cong. & Admin.News
1982, p. 206. See Jones o. City of Lub-
bock, supra at 383; Cross o. Ba.ster, 604
F.2d 875, 880 (sth Cir.1979); Kirksey u.

Board of Supertrisors, 554 F.2d 139, 143-
44 (lth Cir.1977).

C. The ertent to which ooting in
Greenwood is racially polarized

The City of Greenwood is divided into
three wards or precincts: East Greenwood
which is predominantly black, North Green-
wood which is virtually all white, and West
Greenwood which is armixed neighborhood.
Voting in Greenwood's elections has been
predominantly along racial lines. 534

ilies was 123,283, more than twice as high as the
black mean ($9,148). The 1980 census shows
that the black unemplo3rment rate (15.7%) in
Greenwood was nearly six times greater than
the white unemployment rate (2.702i). Black
infant mortality is much higher than it is for
whites. 

?



402

F.Supp. at 1354. In the 1969 and 1981

municipal elections, five black candidates

unsucceBsfully ran for city council.' Pro-
fessor Allan J. Uchtman, of American Uni-
versity of Washington, D.C., an expert in
the history of voting and the methodology
for inferring voter behavior from election

returns and demographic information, has

analyzed each city council contest since

1969 and confirms our prior finding that
"none of the black candidates in any gener'

al election or primary have received more

than relatively few of the votes cast in the

[virtually all white] North Greenwood
ward."s No black candidate for municipal
office has reeeived more than 2.3% of the
North Greenwood vote, with t}te mean suP
port for black candidates in that precinct

being 1.1%. In contrast, Eupport for the
black candidates in the preponderantly
black East Greenwood precinct has been

high, with the average black candidate re-

ceiving 75.5% of. the vote. Stip.Ex. 5(D).

The unchallenged expert opinion, based

upon statistical evidence, shows an extraor-
dinarily high level of racial bloc voting,
with little crossover voting of whites for
black candidates or of blacks for white
candidates. The same pattern apparently
held true for the 1977 referendum on

changing Greenwood's commission form of
government to a mayor-council form, when

voting was predominantly along racial lines

with blacks voting for the change and

whites against it. 534 F.Supp. at 1354.

It is incontrovertible that since 1969

black candidates, although supported over-

whelmingly by Greenwood's black vot€rs,
have been, without exception, rejected by

white voters. The extraordinarily high de-

gree of racial bloc voting practically as-

sures the defeat of black candidates in
at-large elections.

{. Black candidates ran as independents in the
1969 and 1973 general elections and in the Dem'
ocratic parly primary in 1981. There were no
black candidates in 1977. Stip. Ex. 3. The
results of these and other races are set out in the
court's prior opinion and need not be repeated
here.

5. Ahhough Greenwood does not maintain voter
:'c6:.:::,rion b1 racc. tlrt parties agree that

699 FEDERAL SUPPLEMENT
I

D. The ertent tn which Greenwood hat
unusually large elcction districta
ond other uoting prattices that may
cnhance the chance'for discrimina'
tion

1. flnwually large election d.istricts.
According to the 1980 census, Greenwood

is the fifteenth largest city in population in

Mississippi. Since whites, as the political
majority, are able to elect all members of
the city council, an election district encom'
passing the entire city tends to minimize

the voting strength of minority groups.

Rogers o. Lodge, 458 U.S. 613, 616, 102

s.ct. 3272, 3275,73 L.Ed.zd 1012.

2. Majority oote requirement. State
law applicable to Greenwood's elections re
quires that to win a parl,l nomination or to
win a special election to fill a vacancy in
office, candidates must receive a majority
of the votes cast. There can be little doubt
that the majority system tends to strength-
en the ability of the majority to submerge a

racial minority in a multi-member district.
Rogers, 45S U.S. at 627, 102 S.Ct' at 3280'

3. Anti-single shot proubion. Green-

wood's numbered post requirement and

Mississippi's full slate law, Miss.Code Ann.

S 21-11-15 (19?2), minimize black voting
strength by requiring candidates in munici-
pal elections to run for designated seats

and electors must vote on each seat sepa-

rately. A numbered post requirement "en-
hances the [minority's] lack of access be-

cause it prevents a cohesive political group
from concentrating on a single candidate."
Rogers,458 U.S. at 627,102 S.Ct. at 3281.

4. Lack of a subdistrict residency re'
quirernent. There is no requirement that
candidates for municipal office in Green-

wood live in any particular section of the

city. Miss.C,ode Ann. S 21-F5 (f972).' The

through statistical techniques reliable estimates
of the racial composition of the voters may be

ascertained. The number of registered voters is
detailed by precinct for each municipal election
in Greenwood since 1965 together with the esti'
mated racial composilion of the registercd vot-

ers and the registr:.:"'i rates of whites and
blacks since 1969. Sr:;:. f 8, Ex. l.

leck of
housing
means t)
in Green
ers, llfr

On th
lisheg tl
wood is
trsted ir
of the ci

memhr
ing maj
have a r
didates ,

5. Tl
d.atp s,

There e
dates, a
announc
party pr
failure r

the Der
is not s

discrimi

6. T,

paigru
or subt
isnod
past po
the 19?

infer tJ
openly
been th
white <

of the '
tions pr

erendut
peals u

the cha

7. I
nority
offi.ce.
edtoa
This is
tion 2
t€rmin
portun

5. Rac
newsl
know
Go.rer

"4._



..\
JORDAN v. CII:Y Of GREENWQOD, MISS.

Clt .r 1}99 F8up,p. 3, (t$a) " 408

lsck of a residency rcquirement_ where
housing patterns are rachlly segregated
me8n8 t}rat all elected officials may rdride
in Greenwood's white neighborhoods. Rog-
cra, 4fi U.S. at 6n, 102 S.Ct. at 9280.

On the other hand, the evidence estab-
lishes that t}e black population of Green-
wood is sufficiently numerous and concen-
trated in areas of the city that, if members
of tlre city council were elected from single-
member districts, blacks would be in a vot-
ing majority in some districts and would
have a reasonable opportunity to elect can-
didates of their choice. Stip. lT 25.

5. The ertent to which there is a candi-
date slating process in Greenwood..
There exists no slating process of candi-
dates, and blacks are as free as whites to
announce, qualify, and run as candidates in
party primaries and general elections. The
failure of blaek candidates in lg8l to gain
the Democratic party primary nomination
is not sufficient to justify a conclusion of
discriminatory slating.

6. The ertent to which political cam-
paigrx hatte been characterized by oaert
or subtle raeial appeals. Although there
is no direct evidence of racial appeals in
past politieal campargns other than that in
tIe 197? referendum, it is reasonable to
infer that such appeals are tacitly, if not
openly made; black candidates have clearly
been the choiee of the black community and
white candidates the overwhelming choice
of the white community. Racial considera-
tions prominently surfaced in the 1g?? ref-
erendum campaign, when subtle raeial ap
peals urged voters to vote for or against
the change.6

7. The ertent to u,hich members of mi-
nority groups hatse been elected to public
office. As stated, no black has been elect-
ed to a seat on the Greenwood city council.
This is a circumstance that amended Sec-
tion 2 expressly states is significant in de-
termining whether minorities have less op-
portunity than other members of the

6. Racial appeals 10 the voters appeared in local
newspaper articles by white leaders of a group
known as "Citizens for our present fo.m "fGovernmenr," and by the black president of the

electorate,to participate in tlle political pro
cess and elect representativeg of their
choice. The failure of any black candidate
to win an election under an at-large sys-
tem, where racial bloc voting is shown to
prevail, is strong evidence that the political
processes leading to nomination or election
in Greenwood are not equally open to par-
ticipation by black citizens.

8. Responrioeness of elected officials
to particularized needs of the black com-
munity; tenuousness of state poticies fa-ooring at-large electiorx. Both the
Government and the private plaintiffs chal-
lenge our prior finding of responsiveness
of Greenwood's elected officials to the spe.
eial needs of the black citizens. They ar-
gue that the city has taken action to re.
move past discrimination in provisions for
municipal services and employment only af-
ter litigation in federal court and that pub-
lic housing projects sponsored by the city
were accomplished by federal funds. They
also assert that the representation o1
blaeks on city boards and commissions,
non-existent until 1970, has been inade-
quate and disproportionately low. They
further emphasize that the city officials
violated Seetion 5 of the Voting Rights Act
by implementing voting changes after mak-
ing two annexations without obtaining Sec-
tion 5 preclearanee, and which the Attorney
General has determined to be dilutive o1
minority voting strength. Unquestionably,
these arguments weaken the city,s case for
current responsiveness, particularly in light
of the Fifth Circuit ruling in Jones u. City
of Lubbock, where the court observed that
a city's "action taken during the course of
litigation in which the degree of responsive-
ness has been an important evidentiary is-
sue cannot be decisive of past and future
conduct by [the municipality];', and that
city officials "cannot take credit entirely
for the provision of . . . serv-ices [when] t]re
funds for these are Cerived largely from
federal programs aimed at economicallv de-
pressed areas." 727 F.2datB8Z. Notwittr-
standing these arguments, the court is un-

Creenwood Voters League. Stalernents of oppo-
nents and proponents of the change 

".J .ret
forth in thc prior opinion, 53a F.Supp. ar l3-i4-
-56, and ncci i](:,i b(, rcpeared hcrc.



l--'r -. t----

404

persuaded that the Greenwood city*Council
is currently unresponsive to the special
needs of black citizens. It is unnecessary,
however, to dwell on this point since proof
of unresponsiveness is not an essential ele.
ment to make out a case under amended
Section 2.

There is no state policy favoring at-large
elections of city council members, and only
a few cities in Mississippi currently operate
under a commission form of government.
Mogt Mississippi cities with populations
over 10,000 elect their city councils by dis-
trict, Stip. !l 26; hence, the policy for
Greenwood's at-large electoral scheme
must be regarded as tenuous.

tsl In sum, the court is of the firm
opinion that the evidence establishes al-
most every element of proof delineated by
Congress as probative of a Section 2 viola-
tion, and from a totality of the circumstanc-
es, it is inescapably clear that the black
voters of Greenwood have less opportunity
than whites to participate in the political
process and to elect representatives of
their choice. This result is compelled by
evidence no less convincing than tlre record
upon which Hattiesburg's commission form
of government was struck down as viola-
tive of Section 2 by United States Magis-
trate John M. Roper of the United States
District Court for the Southern District of
Mississippi in Boykirx o. City of Hatties-
burg, No. H-77-O062(C), slip op. (S.D.Miss.
Feb. 29, 1984). The court therefore must
require the establishment of single-member
districts for the City of Greenwood.

Since Mississippi law provides for several
forms of city government that do not re-
quire at-large election systems, the defend-
ant mayor and commissioners shall have
the responsibility of submitting to the court
a proposal for the election of eouncil mem-
bers other than the mayor by wards. Since
the new plan must be in place in time for
the 1985 municipal elections, defendants'
proposal setting forth the number and
boundaries of eaeh ward, with the total
population and voting age population by
race assigned trr each ward, shall be filed in
eourt not later than November 1, 1984.
Defendanls, or tt,Llr representatives, shall

t.__*--.

699 tr'EDERAL. SUPPi,PUSNT

'promptly confer with counsel for private
plpintiffs and the United States withp view
of presenting a mutually acceptable plan
that complies with federal law. In this
nespect, it is essential that the new plan of
city government be sribject to preclearance
by the Attoraey General under Seetion 6 of
the Voting Rights Act both to comect the
city's failure to obtain preclearance of the
two prior annexations as well as to secure
approval of the new plan for t}le entire city.
In case of disagreement, whether in whole
or in part, private plaintiffs and/or the
United States shall submit their objections
in writing not later than December 1, 1984,
together with alternate pmposals. The
parties are admonished that the interests
of the City of Greenwood and its citizens
will be best served by reconcilement of
differing yiews as to the number and struc-
ture of the wards and thereby avoiding
prolonged and eostly litigation.

JUDGMENT
Pursuant to Memorandum of Decision

this date releassd, it is
ORDERED:

1. The City of Greenwood's commission
form of government with three council
members elected at large violates Section 2
of the Voting Rights Aet of 1965, as
amended in 1982, 42 U.S.C. S 1973 (Supp.
1983).

2. The defendants are hereby EN-
JOINED from further conducting political
party primaries and general elections in the
City of Greenwood of city council members
on an at-large basis.

3. The defendant mayor and commis-
sioners shall, not later than November l,
1984, file with the court a proposal for the
election of council members other than the
mayor by single districts or wards, setting
forth the number and boundaries of each
ward and the total populaticn and voting
age population by race assigned to each
ward. A copy of such plan shall be served
upon eounsel for private plaintiffs and the
United States. Sueh plan must comport
with federal eonstitutional and statutory
law that satisfies the one.person, one-vote
principle, avoids the dilution of minority

or
coni
and
ing
ty,
Vot

vodl
tol
The

nexl
for
mer
plai
file
late
alte
upo
the
den
ble

TH
A

It
r

TH
t,

I
I
r
G

lns



\

TIIEBES SHIPPING, INC. V. AEdICI'RAZrcNI AUSONIA SPA!' 405

lvatc
rbw
Uan
..this

lnof
nnce
rSof
i the
t t}e
EUre
dw.
'bole

the
ions
.984,

The
€sts

non

zens
Iof
trltc-
ting

voting stnength, rird provthe, .qull;:lr:*T,f $il}" *" .lbss to previous merine
to th; political ptocess by 6lact voters. insurerg ,pr"r"ntld debit balance of ebout
Ttre defendant mayor and commigsioners, 288%,u contraeted with representation Uy
or tlreir representatives, shall promptly insureds, representatives of a 72.21% cr.41it
confer with counsel for private plaintiffs bahnce in favor of ingurers for same year,
aud the United States with a view to reach-
ing agreemen! bearing in mind tlre neeessi- 

and where over founyear period' including

[-toi prectearing unier section 6 of t]re one vessel to date of its sale, insurers had

voting nightr ec1 two prior municipal an- paid claims and had claims outstanding of

nexatilons as well as the new electoral plan $6,067,790 more than premiums which in-

for the entire city. In case of disagree, suners received from insureds, leaving deb-

men! whether in whole or in part, private it balance of about 260%, and where noth-
plaintiffs and/or the United States shall ing was disclosed by insureds to defendant
file with the court written objections not insurer about such losses, there was viola-
later than December 1, 1984, together with tion, by representative of insureds, of duty
alternate pmposals, with copy to be eerved of utmost good faith imposed on insured
upon counsel for defendants. If necessary, party to marine insurance, and insurer
the court will thereafter schedule an evi
dentiary hearing as expeditiousry as possi- 

could avoid policies issued and was entitled

ble to resolve the issue. to judgment in its favor'

Judgment for defendant insurer.
-6\-(o Ertvtuxlrtsvstrx):.iff

l. Insurance €=147(l)

Where marine polices enabled insured

THEBES sHrpprNc, rNC., ae owner and i:-'^"il'^1,::"^T:-'T: T Y*-9-t^tt1Tl
Armco Financial Corporation AG., as slso' 8[' op[lon or tnsureo' m nave Amencan

Mortgagee of s.T. ARGo MERCHANT, l8w applied' option was not between Eng-

plaintiffs, lish and American law, but was option to

. v. have "American Law and Praetice" appty,

A.'ICTIRAZIoNI AUS0NIA 
and in view of inter alia' record showing

spA, Defendant. that plaintiffs during litigation had relied
upon American and not English law, it

THESSALY SHIPPING, INC. and Spar- would be held that plaintiffs had long be-
tan Shipping Inc., as Owners of M/Y fore trial exercised their option to have
ARGO POLLTIX and NI/T ARGO "American Law" applied.
TRADER, reepectively, and Armco Fi-
nancial Corporation AG., as Mortgagee 2. Federal Courts e4l9
of the Yessels, Plaintiffg, f,,ules to be applied in Federal District

v. Court in making choice of forum were to be

ASSICURAZIONI AUSONIA federal ehoice of law rules, under principle

SPA, Defendant. that ordinarily the forum uses its own rules

Noe' ?8 Civ' 1186 (IBW), ?8 Civ. for choice of law decision'

4099 (IBW). ' '

united states District court, '' 
tT::i:",:':il]

s.D. New york. srir,,'#lj:ffijr"",1,n,TJil'il::ff
Aug. 2, 1984. would follow so-called ,'lead" underwriter

in all matters of financial substance, which
In a suit by shipou'ners against marine was not believerl i:"- the court to be correct

insurer, the District Court, Wvatt, J., held reading of the )i,., agreement to follow

don
ncil
m2

AE

rpp.

tr{.
ical
lbe
ers

u6-
l,

he
he
ag
ch
Dg
ch
rd
he
rt
ry
,t€

ty