Correspondence from Hebert to Schnapper; United States v. Marengo County Commission Brief for the Appellant

    TO: Eric Schnapper 

FROM: Jerry Hebert 

Enclosed are some of the Department's filings in 
Section 2 cases since the 1982 amendments. There will 
be additional ones sent to you shortly. 

Several of the enclosures may prove helpful to you. 
For example, in the Sumter County v. United States post-trial 
brief, the United States argued that the Senate Report is 
the best source for explaining congressional intent in the 
amendment to Section 2 because the Report "was commended to 
the full Senate and thus is entitled to greater weight than 
any other of the legislative history. " (P. 31) (citation 
omitted). See alsop. 31 at note~/. 

Another of the enclosures that may prove useful is the 
brief filed by the u.s. in the Dallas Counta, Ala. case. After 
an adverse decision from the trial court un er Section 2, the 
U.S. appealed and argued that the district court's finding 
that there were no discriminatory results under Section 2 
was "clearly erroneous." P. 26. The Government• ·s brief notes 
that " d iscriminator result is essentiall a factual issue 
and is therefore subject to review under Ru e 52 s c ear y 
erroneous standard." (P. 26 at note 10) (citation omitted). 

I will continue to pull Section 2 briefs together. In 
the meantime, call me at 202-724-6292(office) or 703-931-5029 
(home) if there are any questions or if I can be of any help. 



• ' ' 

f 
\ 

No. 81-7796 

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant 

v. 

MARENGO COUNTY COMMISSION, et al., 

Defendants-Appellees 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

BRIEF FOR THE APPEI.I.ANT 

WM. BRADFORD REYNOLDS 
Assistant Attorney General 

CHAS. J. COOPER 
Deputy Assistant Attorney General 

JESSICA DUNSAY SILVER 
JOAN A. MAGAGNA 

Attorneys 
Department of Justice 
Washington, D.C. 20530 
( 2 0 2 ) 6 3 3-412 6 

• 

• 



STATEMENT REGARDING PREFERENCE 

This case is not entitled to preference in processing. 

STATEMENT REGARDING ORAL ARGUMENT 

Appellant desires oral argument and believes it would be 

helpful to the Court as this case involves an extensive factual 

record and application of a recently amended statute. 



TABLE OF CONTENTS 

Page 

QUESTION PRESENTED--------------------------------------- 1 
STATUTORY PROVISIONS INVOLVED---------------------------- 2 
STATEMENT------------------------------------------------ 2 

1. Procedural history------------------------------ 2 

2. Factual background------------------------------ 5 

3. The district court opinion (1979)--------------- 8 

4. The district court opinion (1981)--------------- 10 

STATEMENT OF JURISDICTION-------------------------------- 11 
INTRODUCTION AND SUMMARY OF ARGUMENT--------------------- 11 
ARGUMENT: 

MARENGO COUNTY'S AT-LARGE SYSTEM VIOLATES 
SECTION 2 OF THE VOTING RIGHTS ACT BECAUSE 
IT RESULTS IN A DENIAL OF THE RIGHT OF 
BLACK CITIZENS TO PARTICIPATE EQUALLY IN 
THE ELECTORAL PROCESS------------------------------- 14 

A. This case should be decided under Section 2 
of the Voting Rights Act as amended 14 

B. An at-large system violates Section 2 if 
it results in blacks having less opportunity 
than whites to participate in the political 
process and to elect representatives of 
their choice------------------------------------ 16 

C. The district court's findings establish a 
violation of Section 2 as amended--------------- 23 

1. The history of discrimination--------------- 23 

2. Racial bloc voting and the election of 
black candidates---------------------------- 27 

3. Unresponsiveness---------------------------- 33 

4. Enhancing factors--------------------------- 36 

D. This Court should reverse the judgment of the 
district court and remand for the entry of 
relief------------------------------------------ 38 

CONCLUSION----------------------------------------------- 40 

i 



TABLE OF AUTHORITIES 

Page 

Cases: 

Albemarle Paper Co. v. Moody, 422 u.s. 405 
{1975)-------------------------------------------- 39 

Black v. Curb, 422 F.2d 656 {5th Cir. 1970)--------- 24 

Bradley v. Richmond School Board, 416 u.s. 717 
{1974)-------------------------------------------- 11,15 

City of Mobile v. Bolden, 446 U.S. 55 (1980)-------- 3,4,15,16, 
17,20 

Clark v. Marengo County, 469 F. Supp. 1150 
{S.D. Ala. 1979)---------------------------------- 3 

Concerned Citizens of Vicksburg v. Sills, 567 
F.2d 646 {5th Cir. 1878)-------------------------- 38 

Cross v. Baxter, 604 F.2d 875 {5th Cir. 1979)------- 26,33 

Davis v. Schnell, 81 F. Supp. 872 {S.D. Ala. 1949)-- 24 

Hadnott v. Amos, 394 u.s. 358 (1969)---------------- 24 

Hutto v. Finney, 437 U.S. 678 {1978)---------------- 16 

Jackson v. DeSoto Parish School Board, 585 F.2d 
726 {5th Cir. 1978)------------------------------- 16 

Kirksey v. Board of Supervisors, 554 F.2d 139 
{5th Cir. 1977) (en bane), cert. denied, 434 
u.s. 968 ---------------------------------------- 26,27,32,39 

Kirksey v. City of Jackson, 625 F.2d 21 {5th Cir. 
1980)--------------------------------------------- 38 

Lee v. Macon County Board of Education, 465 F.2d 
369 {5th Cir. 1972)------------------------------- 24 

Lee v. Marengo County Board of Education, 588 
F.2d 1134 {5th Cir.), cert. denied, 444 u.s. 
830 (1979)---------------------------------------- 35 

ii 



Cases (continued): 

Lee v. Marengo County Board of Education, 454 
F. Supp. 918 (S.D. Ala. 1978)---------------------

Lodge v. Buxton, 639 F.2d 1358 (5th Cir. 1981), 
aff'd sub~ Rogers v. Lodge, 50 u.s.L.W. 
5041 (U.S. July 1, 1982)--------------------------

McMillan v. Escambia County (McMillan II), 
Nos. 78-3507, 80-5011 (5th Cir., Sept. 24, 1982)--

McMillan v. Escambia County (McMillan I) 
638 F.2d 1239 (5th Cir. 1981)---------------------

Moch v. East Baton Rouge Parish School Board, 
548 F.2d 594 (5th Cir. 1977), cert. denied, 
434 u.s. 859 (1977)-------------------------------

Moore v. Leflore County Board of Election 
Comm'rs, 502 F.2d 621 (5th Cir. 1974)-------------

Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978), 
cert. denied, 446 u.s. 951 (1980)-----------------

New York City Transit Authority v. Beazer, 
440 u.s. 568 (1979)-------------------------------

Pullman-Standard v. Swint, 50 U.S.L.W. 4425 
(U.S. Apr. 27, 1982)------------------------------

Rogers v. Lodge, 50 U.S.L.W. 5041 (U.S. July 1, 
1982)---------------------------------------------

Singleton v. Jackson Municipal Separate School 
District, 419 F.2d 1211 (5th Cir. 1969)-----------

United States v. Alabama, 252 F. Supp. 95 
(M.D. Ala. 1966)----------------------------------

United States v. Alabama, 362 u.s. 602 (1960)-------

iii 

Page 

35 

4,5,10,15 

11,15,16,17 

17,21,36 

16 

31,33 

3,20 

14 

38 

5,11,20,25, 
26,27,28,33, 
36,37,39 

35 

24 

15 



Cases (continued): 

United States v. Board of Supervisors, 571 F.2d 
951 (5th Cir. 1978)-------------------------------

United States v. Executive Committee, 254 F. Supp. 
543 (N.D. & S.D. Ala. 1966)-----------------------

Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 u.s. 252 (1977)----

Washington v. Davis, 426 u.s. 229 (1976)-----------­

Whitcomb v. Chavis, 403 u.s. 124 (1971)-------------

White v. Regester, 412 u.s. 755 (1973)--------------

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 
1973) (en bane), aff'd on other grounds sub 
nom. East Carroll Parish School Board v. 
Marshall, 424 u.s. 636 (1976) (per curiam)--------

Constitution and statutes: 

Constitution of the United States: 
Fourteenth Amendment-----------------------------­
Fifteenth Amendment-------------------------------

Voting Rights Act Amendments of 1982, 
Pub. L. No. 97-205, 96 Stat 131, 
97th Cong., 2d Sess. (1982): 

section 2--------------------------------------­
Section 6---------------------------------------

42 u.s.c. 1971--------------------------------------
42 u.s.c. 1973(1976)--------------------------------

28 u.s.c. 1291--------------------------------------
28 u.s.c. 2106--------------------------------------

iv 

Page 

31,39 

24 

20 

20 

16,20 

8,19,20,21, 
25,31 

3,4,8,10, 
12,20,21,25, 
26,31,36,37, 
38 

3,4,14,19 
3,14,17 

passim 
15 

2 
2,3,16,17 

11 
39 



Page 

Miscellaneous: 

H.R. 3112, 97th Cong., 1st Sess. (1981)------------- 18 

H.R. Rep. No. 97-227, 97th Cong., 1st 5ess. (1981)-- 16,23 

5. Rep. No. 97-417, 97th Cong., 2d 5ess. (1982)----- 16,18,19,20, 
21,22,23,25, 
26,27,36,39 

128 Cong. Rec.: 

56497-56561 (daily ed., June 9, 1982)-------------
56560 (daily ed., June 9, 1982)-------------------
56647 (daily ed., June 10, 1982)------------------
56638-56655 (daily ed., June 10, 1982)------------
56714-56726 (daily ed., June 14, 1982)------------
56777-56795 (daily ed., June 15, 1982)------------
56779 (daily ed., June 15, 1982)------------------
56914-56916 (daily ed., June 17, 1982)------------
56929-56934 (daily ed~, June 17, 1982)------------
56960 (daily ed., June 17, 1982)------------------
56934 (daily ed., Jane 17, 19S2)------------------
56938-56970 (daily ed., June 17, 1982)------------
56977-57002 (daily ed., June 17, 1982)------------
57075-57142 (daily ed., June 18, 1982)------------
57095 (daily ed., June 18, 1982)-----------------­
H3839-H3846 (daily ed., June 23, 1982)-----------­
H3840 (daily ed., June 23, 1982)-----------------­
H3841 (daily ed., June 23, 1982)------------------

v 

19 
18 
18 
19 
19 
19 
18 
19 
19 
18 
20 
19 

. 19 
19 
15 
19 
18 
15,18 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

No. 81-7796 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant 

v. 

MARENGO COUNTY COMMISSION, et al., 

Defendants-Appellees 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN,DISTRICT OF ALABAMA 

BRIEF FOR THE APPELLANT 

QUESTION PRESENTED 

Whether the at-large system for electing the Marengo 

Commission and the Marengo County School Board "results 

in a denial or abridgement of the right of [black citizens] 

to vote on account of race or color" within the meaning of 

Section 2 of the Voting Rights Act, as amended. 



- 2 -

STATUTORY PROVISIONS INVOLVED 

Section 2 of the voting Rights Act of 1965, as amended in 

1982 by Pub. L. No. 97-205, 96 Stat. 131, provides: 

(a) No voting qualification or prerequisite to voting 
or standard, practice, or procedure shall be im­
posed or applied by any S~e o':political subdi­
vision in a manner which ~sult~~n a denial or 
abridgement of the right of any citizen of the 
United States to vote on account of race or color, 
or in contravention of the guarantees set forth 
in section 4(f)(2), as provided in subsection (b). 

(b) A violation of subsection (a) is established if, 
based on the totalit¥ of circumstances, it is 
shown that the pol1t1cal processes leading to nomi­
nation or election in the State or political subdi­
vision are not equally open to participation by 
members of a class of citizens protected by subsec­
tion (a) in that its members have Jess opportunity 
than other members of the electorate to partjcipate 
~n the political process and to elect representatives 
Qf the1r cho1c~ The extent to wh1ch members of a' 
protected class have been elected to office in the 
State or political subdivision is one circumstance 
which may be considered: Provided That nothing in 
this section establishes a right to have members 
of a protected class elected in numbers equal to 
their proportion in the population. · 

STATEMENT 

1. Procedural history 

The United States filed this case on August 25, 1978, alleg-

ing that Marengo County's at-large system for electing its county 

commission and school board unlawfully diluted the voting rights 

of black county residents in violation of 42 u.s.c. 1971, 42 



- 3 -
i/ 

u.s.c. 1973 and the Fourteenth and Fifteenth Amendments (R. 1-8)-.-

The case was consolidated with a private class action filed in 

1977 by black voters (R. 37). A four-day trial was held on 

October 23-25, 1978 and January 4, 1979. On April 23, 1979, 

the district court issued an opinion (R. 387-443) and entered 
2/ 

judgment for defendants (R. 444)-.- Because the case involved 

constitutional claims and the court assumed (R. 435) that Section 

2 of the voting Rights Act, 42 u.s.c. 1973, incorporated the 

constitutional standards, the court required proof of "intentional 

invidious discrimination" (R. 438). Following Fifth Circuit 

precedent (Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978), cert. 

denied, 446 u.s. 951 (1980) ), the court determined (R. 438) that 

McKeithen, 485 F.2d 1297 

(5th Cir. 1973) (en bane), aff'd on other grounds sub nom. East 

Carroll Parish School Board v. Marshall, 424 u.s. 636 (1976) 

(per curiam). However, the court ruled (R. 442) that such an 

inference was not warranted here. 

The United States appealed (5th Cir. No. 79-2525); private 

plaintiffs did not. Before the was briefed, the Supreme 

Court decided City of Mobile 46 u.s. 55 (1980), 

1/ RR.R refers to the record on appeal, RTr." to the 1978-1979 
trial transcript and "GX" to the government's exhibits presented 
at that trial. 

2/ The court's opinion is reported as Clark v. Marengo County, 
469 F. Supp. 1150 (S.D. Ala. 1979). 



- 4 -

reversing a Fifth Circuit decision which had also relied on 

Zimmer. There was no majority opinion but five members of the 

Court ~dicated that proof of discriminatory purpose 

is required to establish a violation of the Fourteenth Affienament 

(446 u.s. at 66 (Op. of Stewart, J.), id. at 94 (Op. of White, 

J)). A plurality of the Court indicated that •satisfaction of 

[the Zimmer] criteria is not of itself sufficient proof of such 

a purpose" (446 u.s. at 73 (Op. of Stewart, J.) ). A fifth 

Justice agreed, for different reasons, that the •zimmer analysis 

should be rejected• (446 u.s. at 90 (Op. of Stevens, J.)). The 

Stewart plurality further indicated that the inquiry should 

focus more directly on the motivation of the legislators who 

enacted the challenged electoral system (446 u.s. at 74 n.20). 

After Bolden was handed down, the Fifth Circuit, upon 

motion of the United States, vacated the judgment of the district 

court and remanded for further proceedings •including the presenta-

tion of such additional evidence as is appropriate, in light of 

the decision of the Supreme Court in City of Mobile v. Bolden" 

(R. 448). 

vlhile the case was pending on remand, the Fifth Circuit 

decided Lodge v~ 639 F.2d 1358 (5th Cir. 1981), holding 

(639 F.2d at 1375), inter alia, that proof of a governing body's 

the needs of minorit ssential 

to prove discriminatory purpose under Bolden and was thus a 

-------



/ 

\ 

- 5 -

critical element of a voting dilution case. On July 30, 1981, 

the district court, relying on Lodge, entered judgment for the 

defendants and dismissed the complaint (R. 499-502). The United 

States had offered to present further proof of discriminatory 

purpose, but the district court refused, despite the court of 

appeals' instruction. The district court reasoned (R. 501) that 

because it had ruled in its earlier opinion that the United 

States had failed to prove unresponsiveness, the critical element 

under Lodge, evidence the government proposed to present relating 

to the historical reasons for the adoption of the at-large system, 

•would add nothing.• 

The United States appe,aled and this Court held the appeal 

in abeyance pending the Supreme Court's decision in IDdge (probable 

jurisdiction noted sub nom. Rogers v. Lodge, No. 80-2100 (October 

\ 5, 1981). On July 1, 1982, the Supreme Court decided Lodge (50 

U.S.L.W. 5041). In its opinion the Court expressly disapproved 

(50 U.S.L.W. at 5044 n. 9) the holding that proof of unresponsive--ness is an essential element of a voting dilution claim. 
~ 3/ 

2. Factual background--

Marengo County, Alabama, is a large, rural county in West 

Central Alabama (R. 390). The county is governed by the Marengo 

County Commission (previously known as the Marengo County Board of 

3/ This section contains a brief outline of the facts taken prin­
Cipally from the district court's 1979 opinion. The facts are 
discussed in more detail in the argument section. 



- 6 -

Revenue}, which was created by the state legislature in 1923 (R. 

392}. The 1923 Act provided for four members of the Commission 

to be elected from single-member districts and a president to 

be elected at-large (ibid.}. In 1955, the state legislature 

passed a law providing for at-large elections for the four members 

with residency districts corresponding to the old single-member 

districts (R. 393}. In 1966, the law was amended to provide for 

staggered four-year terms (ibid.}. 

Prior to 1935, the Marengo County School Board was governed 

by general Alabama law (R. 394 n.l}. In that year, state legislation 

was passed providing for a four-member board to be elected for 

6-year terms from single-memqer districts (the same as those used 

for the county commission) (R. 394) The president was elected 

at-large (ibid.}. In 1955, the law was amended to provide for 

at-large elections with residency districts for board members and 

the terms were shortened to four years (ibid.}. In 1966, legisla­

tion was enacted providing for staggered terms (ibid.}. 

There is no state policy militating for or against at-large 

systems (R. 425}. At least half of Alabama counties, however, have 

at-large systems (ibid.}. 

There is a majority vote requirement for party primaries, 

and the Democratic primary "is for all intents and purposes the 

election in Alabama" (R. 430} (emphasis in original}. 



- 7 -

Blacks constitute a majority of the population in Marengo 

County although their share of the population has been diminishing 

steadily since 1950 (R. 391}. According to the 1970 census, 

blacks were a bare majority (50.8%} of the voting age population 

( R. 391} • 

Year 

1950 
1960 
1970 

Year 

1960 
1970 

Total 

29,494 
27, 09 8 
23,819 

'fetal 

13,895 
14,113 

Marengo County 

Total Population 

Whites 

9,018 (31%} 
10,270 (37.9%} 
10,662 (44.8%} 

Voting Age Population 

irhites 

6,104 (43.9%} 
6,949 (49.2%} 

Blacks 

20,473 (69%} 
16,828 (62.1%} 
13,157 (55.2%} 

Slacks 

7,791 (56.1%} 
7,164 (50.8%} 

Blacks have always been in the minority among registered 

voters. Prior to the passage of the voting Rights Act in 1965, 

blacks were "for the most part disenfranchised" (R. 426}. Federal 

registrars went to Marengo County in 1967 and registered over 

4,900 blacks (GX 21}. By 1970, there were 14,360 registered 

voters of whom 6,302 (43.9%} were black and 8,058 (56.1%} were 
4/ 

white (Tr. 1202}:- At the time of trial, in 1978, there were 

4/ The registration figures are somewhat inflated because voters 
Who have died or moved apparently are not removed from the regis­
tration lists (Tr. 1069-1072}. Thus, the figures show more 
persons registered to vote than the census data indicate are of 
voting age. The district court also doubted (R. 406} the accuracy 
of the registration data. 



( 

8 -

18,821 registered voters of whom 7,965 (42.3%) were black and 

10,856 (57.7%) were white (Tr. 1204). 

No black ran for office in Marengo County before the passage 

·of the Voting Rights Act in 1965 (R. 397). In elections from 1966 

through 1978, there were 73 races where blacks ran against whites 
5/ 

and voting was on a county-wide basis (R. 429)-.- The voting in 

every election was highly polarized along racial lines (R. 406 n. 

12). Only one black defeated a white; in 1978, Clarence Abernathy 

won the Democratic primary by a margin of only 3,719 to 3,617, and 

was subsequently elected to the post of county coroner (R. 402). 
6/ 

3. The district court opinion (1979_)_ 

The its findings according to 

In Z1mmer, the 

Fifth Circuit, en bane, had li ted several criteria, derived from 

the Supreme Court • s opinion ~~. Regester, 412 U.s. 755 

(1973), which in their "aggregate" would establish unconstitu-

tional vote dilution in an at-large system (485 F.2d at 1305): a 

lack of access to the process of slating candidates, the unrespon-

siveness of elected officials to minority interests, a tenuous 

5/ Some of those races were for state or national offices but 
voting for those offices was county-wide (R. 397-402). 

_!/ This appeal is from the 1981 judgment dismissing the complaint. 
The 1979 judgment was vacated by the court of appeals on the first 
appeal (R. 448). However, the district court, in 1981, essentially 
reinstated its 1979 opinion by refusing to hear additional evidence 
arrl by relying on its earlier findings as the basis for dismissal. 



( 

- 9 -

s~ate policy underlying the at-large system and the existence 

of past discrimination which precluded effective participation 

in the election system. Proof of these factors could b~ced" 
by a showing of the existence of a large district, a majority 

vote requirement, an anti-single shot provision and the lack 

of residency districts. 

The district court found (R. 396l an extensive histgry of 

past discrimination which bas continued to inhibit blacks from ex-

press i ng their political views and to affect black participation in 

the political system. The court identified {R. 406 n. 12) the 

ma;ked pattern of racial bloc voting as one of the lingering effects 
( 

of past discrimination. The 'court further found no satisfactory 

explanation for the failure to appoint black poll officials in 

more than token numbers {R. 404). The district court recognized 

(R. 440) that the county commission "ignored" black interests to 

some extent, but no "substantial" unresponsiveness was found (R. 

440). The school board was also deemed {R. 419-420) responsive to 

black needs although the court found (R. 419) that it had abandoned 
7/ 

segregation only after "long and tortured" federal litigation-.-

7/ Because the court was seeking to determine whether the at­
large system was being retained for discriminatory reasons, the 
issue of unresponsiveness was considered a "momentous" one (R. 440 
n. 35). 



I 

- 10 -

The majority vote reguirement, the large area of the county 
,.. 2iii4 

and the cost of campaigning together with the lower socio-economic 

status of blacks were factors which the court recognized (R. 439, 

441-442) to enhance the effects of the at-large system. Other 

factors were deemed neutral (R. 441). 

In "aggregating" its findings relating to the Zimmer factors, 

the~ourt determined (R. 439) that blacks were not being denied 

access to the political proces~. Because blacks control a large 

proportion of registered voters, the court found (R. 406-407) that 

they could counteract the effects of racial bloc voting and win 

elections simply by overcoming voter apathy and turning out more 
I 

black voters. The court concluded (R. 425) that the at-large 

system could not have been adopted originally for the purpose of 

diluting black voting strength because blacks at the time of 

enactment were completely disenfranchised and the court also 

concluded (R. 442) that the system was not being maintained for 

discriminatory reasons. 

4. The district court opinion (1981) 

The district court reaffirmed (R. 501) its original finding 

the United States had failed to establish the unresponsiveness 

of Marengo County officials to the needs of black citizens. This 

failure was deemed fatal to the government's case under the rule 

of Lodge v. Buxton, supra, that unresponsiveness is a crjtjcal 

element of proof in a dilution case (R. 501). In light of the 



/ 

- 11 -

failure to prove unresponsiveness, the court held (ibid.) that 

•[t]he historical evidence going to the reasons for the adoption 

of at-large elections which the Government had indicated it 

would offer on remand would add nothing." 

STATEMENT OF JURISDICTION 

This Court has jurisdiction under 28 u.s.c. 1291. 

INTRODUCTION AND SUMMARY OF ARGUMENT 

On June 29, 1982, the President signed legislation (Pub L. 

No. 97-205, 96 Stat. 131) amending Section 2 of the Voting Rights 

Act. It is plain, under established precedent (e.g., Bradley v. 

Richmond School Board, 416 u.s. 696, 711-721 (1974) ), that the 

amendment to Section 2 governs the disposition of this appeal. 
~ 

The amended Sect1on 2 establ1shes a test for unlawful 

voting dilution less stringent than that applied by the district 

court which held the United States to the standard of proof 

governing claims of unconstitutional voting dilution. Under the 

constitutional standard it must be shown that the challenged 

electoral system was adopted or has been maintained for a discri~ 

m~natory purgose. See Rogers v. Lodge, 50 U.S.L.W. 5041, 5042-5044 

(U.S. July 1, 1982). Under amended Section 2, it is not necessary 

to prove discriminatory purpose. McMillan v. Escambia County, 

(McMillan II) Nos. 78-3507, 80-5011 (5th Cir., September 24, 

1982), slip op. 21 n.2. An electoral system violates Section 

2, as amended, if it •results in a denial or abridgement" of the 



- 12 -

right to vote on account of race or color, in that it affords 

minorities "less opportunity than other members of the electorate 

~ to participate in the political process and to elect representa­

tives of their choice." 

The legislative history accompanying the amendment to 

I 
Section 2 establishes that Congress intended the so-called "Zimmer 

factors" to be highly relevant to establishing voting dilution in 

violation of the statute. The district court made findings with 

~espect to each of the Zimmer factors. Those findings establish 

Gl'l that .blacks 1n Marengo County do not have an equal o to 

par4c 1pa te,w tbe eJ.ectoral pLoc,es.s wi thiJb--t.he meao i_ng _of Sect ion ..... 

Blacks have always been a minority of registered voters. 

This fact loge ther with the majority vote tequirement make it 

necessary for blacks to form coalitions with white voters in 

order to elect candidates of their choice. However, whites have 

~een unwilling to do that. Voting is highly polarized along racial 

Gl' lines. Of 73 black candidates who have run, over a 12-year 

period, only one has been elected (and that by a margin of little 

over 100 votes). The district court found an extensive histSFY 

of racial discrimination in Marengo County in voting and many 

other areas. Past discrimination, the court found, has retarded 

black efforts for political change and has made blacks reluctant 

even to express their political views. There was testimony that 

the pronounced pattern of racial bloc voting and the ingrained 



I 

~ 

- 13 

tradition of nonparticipation have discouraged and inhibited 

blacks from voting. The district court also recognized that 

blacks have not been appointed as poll officials except in token 

numbers. This affects the voting rights of illiterate voters 

and more than one third of all adult blacks in Marengo County 

have received little or no schooling. Past discrjmi catiQR~as 
< 

resulted in a considerably low~r socio-economic level for blacks .. ~ 

than for whites. In the face of these findings of racial bloc 

voting and the effects of past discrimination the district 

court erred in concluding that the failyre of blacks to have a~ 

effective voice in the political process is a result of apathy. -
The question whether white elected officials have been 

respons1ve 

factor that may be considered in assessing whether blacks have 

equal access to the political process. The district court erron-

eously concluded that there has been no "substantial" unrespon-

siveness on the part of a county commission which has "ignored" 

black needs in some respects and a school board which grudgingly 

abandoned segregated education only when compelled to do so by 

a long series of federal court orders. But, in any event, con-

' trary to the district court's rulings, proof of unresponsiveness / 

is not a critical element of a dilution case, nor is it a "moment 

tous" issue • ..... 



- 14 -

This Court should apply the new legal standard of Section 2 -to the facts already found by the district court. The interest 

of judicial economy would be disserved by a remand for new findings 

under the changed law. The amendment to Section 2 contemplates 

that courts will evaluate the same factors which the district 

court considered here. Furthermore, based on the evidence in 

this case, the district court on remand could not correctly 

enter judgment for defendants. However, the question of appro-

priate relief should be addressed first by the district court, 

and a remand for that purpose should be ordered. 

ARGUHENT 

MARENGO COUNTY'S ' AT-LARGE SYSTEM VIOLATES 
SECTION 2 OF THE VOTING RIGHTS ACT BECAUSE 

IT RESULTS IN A DENIAL OF THE RIGHT OF BLACK 
CITIZENS TO PARTICIPATE EQUALLY IN THE 

ELECTORAL PROCESS 

A. This case should be decided under Section 2 of the 
Vot1ng R1ghts Act as amended 

1. The United States' complaint alleged that Marengo County's 

at-large system violated the Fourteenth and Fifteenth Amendments 

and Section 2 of the voting Rights Act. The President has recently 

signed an amendment to Section 2 which establishes a statutory 

standard for proving unlawful vote dilution less stringent than 

that under the Constitution. Where possible, courts should 

avoid adjudication of constitutional questions when a statutory 

ground for decision exists. New York City Transit Authority v. 



- 15 -

Beazer, 440 u.s. 568, 582 (1979). This Court should thus rest 

its decision on the statutory ground without reaching the consti-
- 8/ 

tutional issues-.-

2. The amendment to Section 2 became effective upon 

enactment (Section 6, Pub. L. No. 97-205, 96 Stat. 135) and the 

legislative history indicates that it is to apply to pending 

cases. 128 Cong. Rec. S7095 (daily ed., June 18, 1982) (Kennedy); 

128 Cong. Rec. H3841 (daily ed., June 23, 1982) (Sensenbrenner 

with Edwards concurring). See McMillan II, supra, slip op. 

21-22 n.2. 

It is well established that an appellate court should apply 

the law in effect at the time it renders its decision, Runless 

do1ng so would result 1n man1fest lnJustlce," Bradley v. R1chmon~ 

School Board, 416 u.s. 696, 711 (1974). See also United States 

8/ The united States was not given a full opportunity to present 
evidence under a constitutional theory regarding the legislative 
motivation behind the adoption of the at-large system. When the 
case was remanded for that purpose after City of Mobile v. Bolden, 
the district court dismissed the case, relying on the erroneous 
Lodge v. Buxton rule about proof of unresponsiveness. This is 
therefore a different circumstance from that in McMillan v. 
Escambia County, (McMillan II) Nos. 78-3507, 80-5011 (5th Cir., 
September 24, 1982), where the court recognized the applica­
bility of the amended Section 2 but declined to rest its decision 
on the statutory ground (slip op. 21-22 n.2). In McMillan II, 
the court had before it a complete record on the constitutional 
issues, an adjudication of the Section 2 issue would have required 
additional briefing, and plaintiffs sought relief in time to 
affect the upcoming elections. None of these considerations 
apply here. 



- 16 -

v. Alabama, 362 u.s. 602 (1960); Hutto v. Finney, 437 u.s. 678, 

694-695 n. 23 (1978). No such special circumstance exists here. 

In voting cases, changes in the law have traditionally been held 

to constitute adequate justification for the reconsideration of 

previously-entered judgments. See, ~, Whitcomb v. Chavis, 

403 u.s. 124, 162-163 (1971); McMillan II, supra, slip op. 2, 9; 

Jackson v. DeSoto Parish School Board, 585 F.2d 726, 729 (5th Cir. 

1978); Moch v. East Baton Rouge Parish School Board, 548 F.2d 

594 (5th Cir. 1977); cert. denied, 434 u.s. 859. 

B. An at-large system violates Section 2 if it results 
1n blacks having less opportunity than wh1tes to par­
ticipate in the political process and to elect represen­
tatives of their choice 

Under the amended Section 2, the test for unlawful voting 

dilution is less stringent than the constitutional standard 

applied by the district court. The district court determined 

(R. 438) that discriminatory intent must be inferred from the 

evidence in order to conclude that the voting rights of blacks 

are unlawfully diluted. Section 2, as amended, requires no such 

showing of purpose or intent. 

The amendment to Section 2 was a response to the Stew~rt 

plurality opinion in Bolden. s. Rep. No. 97-417, 97th Cong., 2d 

Sess. 28 (1982); H.R. Rep. No. 97-227, 97th Cong., 1st Sess. 

28-29 (1981). Prior to the 1982 amendment, Section 2 provided 

in relevant part as follows (42 u.s.c. 1973): 

/ 



I 

- 17 -

No voting qualification or prerequisite to voting, 
or standard, practice, or procedure shall be imposed 
by any State or political subdivision to deny or abridge 
the right of any citizen of the United States to vote 
on account of race or color * * * • ~/ 

In amending the statute, Congress deleted the words "to deny 

or abridge" and substituted new language so that it now provides 

that no voting procedure, etc., shall be imposed or applied "in 
---- -~ 

a manner whic~esult~ in a denial or abridgement" of the right 
10/ 

to vote on account of race or color (emphasis added)-.- Congress 

1
~/ I~~) five Justices interpreted Section 2 of the Voting 
Ri ghts , 42 u.s.c. 1973, to be a codification of the Fifteenth 
Am~ (446 u.s. at 60-62 (Op. of Stewart, J.; id. at 105 n.2 
(Op. of Marshall, J.)). However, five Justices coUid not agree 
on the scope of the Fifteenth Amendment. Tbe Stewart plurality 
ind1cated that a dilution claim is not cognizable under the 
F~fteenth Amendment (id. at 64-65). Justices Stevens, White and 
Marsliall disagreed (id. at 84, 102, 126-129) an~ Just1ces Brennan 
and Blackmun did not-explicitly state their views. ~he Stew~rt 
plurality also indicated that proof of discriminatory purpose is 
required under the Fjfteenth Amendment (id. at 62). Justice 
Marshall disagreed (id. at 129-135) but other Justices did not 
explicitly state their views. 

In McMillan v. Escambia County (McMillan I), 638 F.2d 
1239, 1243 n.9 (5th Cir. 1981), the Fifth Circuit, relying on 
the Stewart plurality opinion in Bolden, held that a dilution 
claim was not cognizable under Sect1on 2 of the voting Rights 
Act. However, in McMillan II, supra, slip op. 21 n.2, the court 
recognized that the recent amendment to Section 2 "encompasses a 
broader range of impediments to minorities' participation in 
the political process than those to which the Bolden plurality 
suggested the original provision was limited." The court in 
McMillan II also recognized (slip op. 21 n.2) that Section 2, as 
amended, requires no showing of purpose or intent. 

!Q/ Seep. 2, supra, for the complete text of Section 2, as amended. 



- 18 -

also added an entirely new paragraph (designated subsection (b)) 

which provides that a violation of the original paragraph, as 

amended (now designated subsection (a)) is established: 

if, based on the totality of circumstances, it is 
shown that the political processes leading to nomina­
tion or election in the State or political subdivision 
are not equally open to participation by members of a 
class of citizens protected by subsection (a) in that 
its members have less opportunity than other members 
of the electorate to participate in the political process 
and to elect representatives of their choice.ll/ 

Congress used the "results" langu~ge i~ the n~w su~tion 

(a) in order to eliminate the need to show discriminatory purpose 

to establish a violation of Section 2-.- The relevant ingui~ 

is whether a voting practice results in an unequal opportunity 

•to participate * * * and to elect," not whether the inequality 

is attributable to a discriminatory purpose-.-

I 

Subsect1on (b) further provides that: 
The extent to which members of a protected class have 

l been elected to office in the State or political sub­
division is one circumstance which may be considered: 
Provided, That nothing in this section establishes a 
right to have members of a protected class elected in 
numbers equal to their proportion in the population. 

12/ See s. Rep. No. 97-417, supra, at 16, 17, 27-28, 31-43: and 
TO. at 193 (additional views of Senator Dole); 128 Cong. Rec. 
S6560 (daily ed., June 9, 1982) (Kennedy); id. at S6779 (daily 
ed., June 15, 1982) (Specter); id. at S6960--(daily ed., June 17, 
1982) (Dole); id. at S6647 (dailY ed., June 10, 1982) (Grassley); 
id. at H3840 (June 23, 1982) (Edwards); id. at H3841 (daily ed., 
June 23, 1982) (Sensenbrenner). 

( 
1
13/ The effort to amend Section 2 began in the House as H.R. 
3112, 97th Cong., 1st Sess. (1981). As passed in the House, the 
bill included the subsection (a) •results" language but objections 

(cont'd) 



- 19 -

fr Regester, 412 u.s. 755 (1973), the first case in 

which the Supreme Court found an at-large election system to be 

unconstitutional. In White, the Court stated that in prosecuting 

a Fourteenth Amendment challenge to an at-large election system 

• [t]he plaintiffs' burden is to produce evidence to support 

findings that the political processes leading to nomination and 

election were not equally open to participation by the group in 

question -- that its members had less opportunity than did other 

residents in the district to participate in the political processes 

111 (cont'd) 

showing that members of a minority group had not been elected in 
numbers equal to the group's proportion of the population. In 
the Senate, compromise language was substituted which included 
the •results• language from the House bill, but removed any 
suggestion that a violation could be established on the mere 
failure to obtain proportional representation, and added the 
•opportunity * * * to participate in the political process• 
language that now appears in subsection (b). See S. Rep. No. 
97-417, supra, at 3-4. This substitute was approved by the 
Senate after several days of debate. 128 Cong. Rec. S6497-S6561 
(daily ed., June 9, 1982); id. at S6638-S6655 (daily ed., June 
10, 1982); id. at S6714-S6726 (daily ed., June 14, 1982); id. at 
S6777-S6795--(daily ed., June 15, 1982); id. at S6914-S6916-,­
S6929-S6934, S6938-S6970, S6977-S7002 (daily ed., June 17, 1982); 
id. at S7075-S7142 (daily ed., June 18, 1982). The House accepted 
the Senate compromise by voice vote several days later. 128 
Cong. Rec. H3839-H3846 (daily ed., June 23, 1982). The President 
signed the bill on June 29, 1982. 



I 

- 20 -

and ·to . elect-legislators of their choice," 412 u.s. at 766. See 
14/ 

also Whitcomb v. Chavis, supra, 403 u.s. at 149-150-.-

Congress used the language from White in Section 2 because 

it wanted courts, in determining whether a voting practice violates 

the amended section, to use the same "results" approach it found 

to have been articulated in White and subsequently developed in the 

the lower federal courts prior to 1978, principally 

by the Fifth Circuit and in particular in what the Senate Report 

refers to as the "seminal" case of Zimmer v. McKeithen, supra. 

l 
15/ 

See s. Rep. No. 97-417, supra, at 23-.- Congress reviewed these 
16/ 

decisions in the course of amending Section ~ and specifically 

supra, a an 1 y • n, supra, 
446 U.S. 69 (plurality opinion), interpreted the White holding 
as consistent with post-White decisions requiring a showing of 
discriminatory purpose (e.g., Village of Arlington Heights v. 
Metropolitan Housing Deveropment Corp., 429 U.S. 252 (l977): 
washington v. Davis, 426 u.s. 229 (l976)), Congress plainly did 
not intend to establish such a requirement by adding language 
from White to Section 2. Indeed, Congress viewed \'lhite as requiring 
only proof of discriminatory results. S. Rep. No. 97-417, supra, 
at 28. 

15/ Congress found that until 1978 the federal courts employed 
tne "results" test in voting dilution cases but in 1978 aban­
doned this test by incorporating into their analysis a discrimi­
natory purpose requirement derived from Washington v. Davis, and 
Arlington Heights. s. Rep. No. 97-417, supra, at 23-24. See, 
~' Nevett v. Sides, supra, upon which the district court here 
relied (R. 438) in requiring proof of discriminatory purpose. 

lil The Senate Report refers repeatedly to "some 23 reported 
vote dilution cases in which federal courts of appeals, prior 
to 1978, followed White." s. Rep. No. 97-417, supra, at 32: id. 
at 15-16, 23-24, 27-28, 31-34; and id. at 194 (additional views 
of Senator Dole). See also 128 Con97 Rec. S6934 (daily ed., 
June 17, 1982) (listing the 23 cases). 



- 21 -

f
intended to •codif[y]" the lower courts' interpretation of the 

17/ 
White language. s. Rep. No. 97-417, supra, at 32-.-

Congress decided that, under this case law, and thus 

under the amended Section 2, courts are to •assess the impact of 

the challenged structure or practice on the basis of objective 

factors, rather than making a determination about the motivations 

which lay behind its adoption or maintenance," s. Rep. No. 97-

417, supra, at 27, 28 n. 112. The Senate Report lists a number 

of sue~ "derived from the analytical 

the Supreme Court in White, as articulated 

used by 

28 n. 113), which a plaintiff can show •to establish a violation" 

of Section 2 (id. at 28-29) (footnotes omitted): 

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 register, 
to vote, or otherwise to participate in the democratic 
process; 

177 Pla1nt1ffs may prove a violation of the amended section 
oy showing that an election system was adopted with the intent 
to discriminate. s. Rep. No. 97-417, supra, at 27 & n. 108. But, 
as we have discussed, the district court refused us the oppor-

• tunity to establish that the at-large system had been enacted 
for discriminatory reasons. The court had earlier erroneously 
assumed (R. 425) that a system adopted at a time when blacks 
were already disenfranchised could not have been motivated by 
discriminatory reasons. See, ~~., McMillan I, supra, 638 F. 2d 
at 1245-1246 (5th Cir. 1981). ~e court also determ1ned (R. 
442) that the system was not being maintained for discriminatory 
reasons. We submit that the district court's findings relating 
to purpose are incorrect; however, this Court may simply disregard 
them because proof of purpose is unnecessary under the amendment 
to Sect ion 2. 



/ 

- 22 -

2. --the extent to which voting in the elections of the state 
or political subdiv1s1on 1s racially polarized; 

3. the extent to which the state or political subdivision 
has used unusually large election districts, majority 
vote requirements. anti-single shot provi sianc::~r 
other voting practices or procedures that may~~an£;) 
the opportunity for discrimination against the m1nority 
group; 

4. if there is a candidate slating process, whether the 
members of the minority group have been denied access 
to that process; 

5. the extent to which members of the minority group in 

(

the state or litical subdiv1sion bear the eftects of 
discrimination in such areas as education, emplo men 
~nd health, wnich hinder their ability to participate 
~ffectively 1n the political process; 

6. whether pqlitical campaign~ have been characterized 
by overt or subtle racial appeals; 

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

In addition to these seven factors, the Senate Report 

listed two subsidiary factors which might have probative value 

in a Section 2 case (S. Rep. No. 97-417, supra, at 29) (footnotes 

ommi tted): 

[1) whether there is a significant lack of responsiveness 
on the part of elected officials to the part1cularized 
needs of the members of the minority grou£, 

[2] wQether the policy underlying the state or political 
subdivis1on 1 s use of such voting qualification, 
~ereguisite to voting, or standard, practice or 
procedure is tenuous. 

The Senate Report list is not intended to be exhaustive 

(S. Rep. No. 97-417, supra, at 29), nor is it intended to be used 

as "a mechanical 'point counting' device" (id. at 29 n. 118). 



- 23 -

~ particular number of factors must be proved nor must a majority 

of them be proved in order to establish a violation (id. at 29). 

See also H.R. Rep. No. 97-227, supra, at 30. Furthermore, "[t]he 

failure of plaintiff to establish any particular factor, is not 

rebuttal evidence of non-dilution" (S. Rep. No. 97-417, supra, 

at 29 n. 118). 

C. The district court's findings establish a 
v1olat1on of Sect1on 2 as amended 

1. The history of discrimination. The legislative history 

of Section 2 establishes that the statute's requirement that 

political processes be "equally open" to all groups "extends 
............ -

beyond formal or official bars to registering and voting or to 

maintaining a candidacy" {S. Rep. No. 97-417, supra, at 30). 

Section 2 was intended to remedy procedures which "perpetuate 

the effects of past purposeful discrimination, and continue the 

~ denial to minorities of equal access to the political processes 

which was commenced in an era in which minorities were purposely 

excluded from opportunities to register and vote" (H.R. Rep. 

No. 97-227, supra, at 31). Therefore, the extent of any history -
of official discrimination touching the right of minorities to 

vote or otherwise participate in the democratic process is -
highly relevant in assessing a claim of unlawful voting dilution 

(S. Rep. No. 97-417, supra, at 28). 



- 24 -

The history of racial discrimination in Marengo County 
--------~---- -- ----·--

has been •extensive" (R. 396), with federal legislation or liti-

gation being necessary to achieve progress in most civil rights. 

The district court found (R. 426-428) that in Alabama generally, 

and Marengo County particularly, litigation has been necessary 

to require black candidates' names to be placed on the ballot 

(Hadnott v. Amos, 394 u.s. 358 (1969)), to require officials to 

allow federal observers at primary and general elections (United 

States v. Executive Committee, 254 F. Supp. 543 (N.D. & S.D. 

Ala. 1966)) and to eliminate the use of literacy tests (Davis 

v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949, aff'd, 336 u.s. 

933 (1949) (per curiam)) and a poll tax (United States v. Alabama, 

252 F. Supp. 95 (M.D. Ala. 1966)). In addition, litigation has 

been necessary to eliminate racial segregation in the county 

school system (Lee v. Macon County Board of Education, 465 F.2d 

369 (5th Cir. 1972)) and to rectify the exclusion of blacks from 

grand and petit juries (Black v. Curb, 422 F.2d 656 (5th Cir. 

1970)). 

It is not clear that discrimination in voting has been 

eliminated. The district court found (R. 405) that the failure 

to appoint black poll officials except in token numbers (GX 15 

Attachment C; Tr. 628-629, 951) was "inequitable." Although the 

court described this failure as one of the lingering effects of 



- 25 -

past discrimination (R. 441), it is perhaps better viewed as 

present discrimination which has a present adverse effect on 

black voter participation in the political process. The district 

court recognized (R. 405 n.ll) that poll officials "are of great 

importance to the illiterate voters• and that blacks would "have 

more confidence• in assistance rendered by blacks. In Marengo 

County, the rate of illiteracy among blacks is very high (36.9% 

of the black population over 25 has either never attended school 

or completed less than four years of education (R. 391) ). For 

older illiterate blacks who have lived in a racially segregated 

society much of their lives and who were frankly disenfranchised 

until 1965, there is an understandable reluctance to vote where 

no black off1c1als are available to assist them (Tt. 50-51, 55g, 

573-576). While the failure to appoint black poll officials 

alone may be of insufficient magnitude to deny blacks equal 

access to the political process, it is an important contributing 

factor. 

Even where the formal barriers to registering, voting and 

running for office have been eliminated, "the debilitating effects 

of these impediments" (Zimmer, supra, 485 F.2d at 1306) may per­

sist and impair the present ability of group members to partici­

pate effectively in the political process. See, e.g., Rogers v. 

Lodge, supra, 50 U.S.L.W. at 5044; White v. Regester, supra, 412 

/ 



- 26 -

u.s. at 766; s. Rep. No. 97-417, supra, at 28-29. That is parti­

cularly so where, as here (R. 427), discriminatory practices 

have been abandoned only under the pressure of federal court 

orders and civil rights legislation. Rogers v. Lodge, supra, 50 

U.S.L.W. at 5044. 

The district court recognized (R. 396) that there is "no 

question" but that the "pervasive" effects of past discrimination 

still "substantially affect" black political participation. The 

court also noted (R. 441) that blacks remain reluctant to express 

their political views and to press for political change and that 

"certainly the indignities thrust upon blacks in the past are 

still well within their minds when they cast their ballots or 

consider the pursuit of political office." 

Blacks in Marengo County also still "bear the effects of 

discrimination in such areas as education, employment and 

health, which hinder their ability to participate effectively 

in the political process" (S. Rep. No. 97-417, supra, at 29). 

As indicated above, over one-third of black adults have 

had little or no schooling. Furthermore, the county schools 

remained segregated until recently. The courts have recognized 

that a history of segregated education adversely affects the 

present ability of blacks to participate equally in the electoral 

process. Zimmer v. McKeithen, supra, 485 F.2d at 1306; Rogers 

v. Lodge, supra, 50 u.S.L.W. at 5044; Kirksey v. Board of Super­

visors, 544 F.2d 139, 143 (5th Cir. 1977) (en bane), cert. denied, 

434 u.s. 968; Cross v. Baxter, 604 F.2d 875, 881 (5th Cir. 1979). 

/ 



- 27 -

Eighty-two percent of the 2,244 Marengo County families 

below the poverty level in 1970 were black (R. 391) and seventy-

six percent of all black families had incomes below poverty 

level (Tr. 1130). Per capita income for whites in Marengo County 

was $1,639 in 1970; for blacks it was $722 (R. 392). The median 

income for all families in Marengo County was $4,909; the mean 

income was $6,478 (R. 391). For black families the median was 

$2,456; the mean was $3,175 (ibid.). Housing figures showed 

that 40% of all housing units in Marengo County lacked some or 

all plumbing facilities; 70% of all housing un i ts with black 

heads of household lacked such facilities ( R. 392 r. 
The Senate Report emphasizes that where such conditions 

exist and where there is a depressed level of black political 

participation, as there is here, no further causal nexus between 

the two need be shown (S. Rep. No. 97-417, supra, at 29 n. 114). 

See also Rogers v. Lodge, supra, 50 u.s.L.W. at 5044-5045; Kirksey, 

supra, 554 F.2d at 145; Tr. 1130-1131, 1144. Indeed, the district 

court recognized (R. 439) that unequal access to the political 

process might be inferred from the low socio-economic status of 

blacks. 

2. Racial 
--·-~'­

At-large systems 

and the ection of black candidates. 

a recognized tendency "to minimize the 

voting strength of minor!!Y_3~~~3_by~rmitting the political 

majority to elect all representatives of the district," Rogers 
- -------------------- -------------------

/ 



- 28 -

v. Lodge, supra, 50 U.S.L.W. at 5042 (emphasis in original). 

The minority is thus •submerge[d]" and the winning group is 

•overrepresent[ed] .• Ibid. The political power of a racial 

mi nority in an at-large system "is particularly diluted when 
~ 
bloc voting occurs." Ibid. "Voting along racial lines allows 

those elected to ignore black interests without fear of political 

consequences, and without bloc voting the minority candidates 

would not lose elections solely because of their race." Id. at 

deed, the district court recog-

from 1966 to 1978 pitting 

a black against a white was tharacterized by racial bloc voting. 

In light of the majority vote requirement, blacks, who con-
18/ 

stitute a minority of registered voters-,- must have the opportunity ' 
I 

I 
to form coalitions with white voters if they are to elect candidates \ 

of their choice. The evidence of racial bloc voting shows that 

whites have not been willing to do that. 

~/ Blacks have never been a majority of registered voters. They 
were essentially disenfranchised prior to passage of the voting 
Rights Act in 1965; only 3.8% of the black voting age population 
was registered (GX20). In 1977, federal registrars registered 
over 4,900 blacks, or an estimated 75% of the black voting age 
population (GX 20, GX 21). Since then, their share has varied 
from 4 2-4 5% of all registered voters ( Tr. 1096). 

(cent' d) 

/ 



- 29 -

The first black candidate for public office in Marengo 

County ran in 1966, winning a plurality of the vote in the initial 

Democratic primary but losing to a white candidate in the primary 

run off (R. 397). In 1968, several blacks ran unsuccessfully, 

some as independents, others in the Democratic primary (R. 398). 

The year 1970 was a peak year of activity for an independent 

black organization, the National Democratic Party of Alabama 
19/ 

(NDPA) (R. 398)-.- NDPA candidates were slated for nearly every 

office on the ballot (R. 398-399). The results were "virtually 

identical" (R. 400) in every race, with blacks taking 36-37% of 

the vote and whites earning 64-63%. The influence of the NDPA 

18/ (cont'd) 

As indicated above, the depressed educational and economic 
status of blacks accounts for a lower level of political parti­
cipation. Another factor which may have contributed to the 
lower registration rate for blacks was the failure of county 
registrars (all of whom are white (Tr. 825)) to hold registration 
hours in all precincts as required by state law. They met only 
in the county seat, a practice which the district court found 
"inconvenienced" more blacks than whites (R. 409). 

The district court speculated that factors other than past 
discrimination could explain the lower registration among blacks 
(R. 429 n.32). The court noted only one example--that 90% of 
Marengo County Jail inmates are black, and convicted felons lose 
their right to vote under Alabama law. But even the district 
court acknowledged this was inconsequential. (The population of 
the county jail at any given time is only 45-50 (Tr. 781)). 

19/ "The NDPA * * * was an outlet for blacks to try to exert 
tnemselves politically after they exh~usted all other processes 
through the regular Democratic Party; and as a result of that, 
the NDPA was set up and designed * * * for an opportunity for 
blacks to obtain public office" (Tr. 553). 



- 30 -

waned after 1970 (R. 398 n.3) and black independents in 1972 and 

1974 earned only 10 to 25% of the vote (R. 401). Blacks running 

in the Democratic primaries in 1970, 1972 and 1974 earned 35 to 

41% of the vote (R. 398, 401). In 1978, four black candidates 

ran in the Democratic primary (R. 401-402). Three were unsuccess-

ful (R. 401-402). The fourth, Clarence Abernathy, won the primary 

for the office of county coroner by 3,719 to 3,617 votes and 

became the first black ever bo be elected to county-wide office 

(R. 402). 

The voting in all of these elections, including Abernathy's 

(Tr. 1120-1121), followed the same racially polarized pattern with 

blacks doing poorly in white .areas of the county and gaining 

most of their support from black areas (R. 390 402). The degree 

of polarization was less severe in 1978 than it had been earlier 

"although there [was] still a great deal of racially motivated 

voting" (R. 406 n.l2). 

The fact that only one of 73 black candidates for county-

wide office was elected in a 12-year period is, by the terms of 

Section 2, one of the important circumstances to be considered 
20/ 

in determining whether the Act has been violated-.- The district 

20/ Just as a loss in one election would not necessarily prove 
dilution, so one success by a very narrow margin does not prove 
its absence and, indeed, the district court did not rely on the 

(cont'd) 

/ 



- 31 -

court recognized (R. 441) that the strong pattern of racial bloc 

voting is one of the lingering effects of racial discrimination. 

Nevertheless, the court determined (R. 407) that it did not indi-

cate that blacks were being denied equal access to the political 

system. 

Because blacks controlled 7,040 votes (R. 406) and because 

previous election winners had generally received only 5,000 to 
J;J:..J-

6,000 votes, the ~ court reasoned (R. 407) that blacks could win 

most elections simply by overcoming black voter apathy and turning 

out more black voters. The Fifth Circuit has held that a slim 

majority in terms of registered voters may not give blacks the 

process and racial bloc voting exists. Moore v. LeFlore County 

Board of Election Commissioners, 502 F.2d 621, 624 (5th Cir. 1974)} 

In addition, where racial bloc voting lingers as a vestige of 

I 
racial discrimination, it is reasonable to assume that whites 

would also turn out in greater numbers if blacks did so. 

lQ_/ (con t' d ) 

fact of Abernathy's victory in reaching its finding of no dilution. 
Several cases have recognized that minorities may be denied equal 
access to the political process even in systems where they have 
been able to elect some minority candidates. See, ~' White 
v. Regester, supra: Zimmer v. McKeithen, supra, 485 F.2d at 
1307. The election of one black official does "not necessarily 
indicate that blacks have achieved full access to the political 
affairs of the county,• United States v. Board of Supervisors of 
Forrest Co., Miss., 571 F.2d 951, 956 (5th Cir. 1978). 



- 32 -

Contrary to the district court's finding, the evidence 

shows that it is not apathy which has deterred blacks from full 

participation in the political process. Indeed, the district 

court recognized ( R. 441) that because of the long his tory and 

lingering effects of racial discrimination, blacks remain reluc-

tant to express their political views. Some blacks do not vote --
because of a "deeprooted hesitancy to be seen participating or 

trying to participate in the political process" (Tr. 563). Blacks 

perceive racial bloc voting as a force making it impossible for 

black candidates to win on the basis of qualifications (Tr. 

630-631). As a result blacks have become frustrated and discour-

aged (Tr. 556-557). The lower income and education levels of 

blacks, themselves vest1ges of d1scr1m1nat1on, and the d1scrim1 

natory failure to appoint black poll officials operate as further 

deterrents to full participation. I~K~~k~ey ~~· Board of Super­

visors, supra, the Fifth Circuit reversed a similar district 

court ruling_ascrihing_b~a~k nonparticipation in the political 

process to lack of interest or apathy. The court of appeals 
------- --------------

indicated tha~_fai~ ure of blacks to register could be "a residual 

effect of past non-access, or of disproportionate education, 
----------~---

employment, income level or living conditions. Or it may be in 

whole or in part attributable to bloc voting by the white majority, 

/ 

- - ----------·--· -------------- ------------



) ._ 

- 33 -

i.e., a black may think_ i_t futile__tQ register." 554 F.2d at 145 ---n. 13. See also Rogers v. Lodge, supra, SO U.S.L.W. at 5044; 

Moore v. LeFlore County Board of Election Commissioners, supra, 

502 F.2d at 625-626 (lower rate of black registration is "only 

to be expected * * * given the history of discrimination and 

repression"); Cross v. Baxter, supra, 604 F.2d at 881. The 

evidence in this case establishes that precisely these factors 

lie behind blacks' failure to register and vote at the same rate 

as whites and, as a result, blacks do not have equal access to 

the political process. 

3. Unresponsiveness. Official unresponsiveness to the 

needs of minority interests rs an additional factor which may 

~ndicate that blacks a'e being excla~e~ rrom equal part1c1pa~1on 

in the political process. 

The district court determined that blacks have "been 

ignored to some extent in the areas of road construction, employ-

ment services, and education" (R. 440). The court found (R. 

412) that "the roads in most predomina[ntly] black areas are un-

paved, and that such roads are often in terrible condition during 

and after adverse weather conditions." However, the court found 

(R. 415) no occasion on which county commissioners had refused 

to do road work or had dealt with complaints on the basis of 

race. 

I 



., 

- 34 -

In 1974, only 25.3% of county employees were black, and 

most of those (85%) were employed in the lower paying service 

and maintenance job categories (R. 422; GX 24). In 1976, 30.1% 

of county employees were black; nearly all (95.5%) of those were 

employed in service, maintenance or skilled craft positions (R. 

422; GX 25). With respect to appointments made by the county 

commission, no black has been named to the Library Board, only 

one was named to the Water Board and two to the nine-member Marengo 

County Subcommittee of the Alabarna-Tornbigbee Regional Planning 

Commission (R. 423). 

Because the court also found (R. 416-419) that some county 

provided services used by more blacks than whites, the 

"ignored" blacks "to some extent," it was not "substantial[ly] 

* * *unresponsive[]" to black interests. It is not clear 

where the district court would draw the line between permissible 

"ignoring" of black needs and impermissible "unresponsiveness" 

to black needs and interests. In any event, to whatever extent 

officials feel they may ignore black interests because of bl~ck 

political impotence, the inference is clear that blacks do not 

have equal access to the political sys tern. 

With respect to the responsiveness of the county school 

board, the court took judicial notice of the "long and tortured" 

desegregation litigation (R. 419). As late as 1978, the school 



. -, 

- 35 -

board had been found in violation of court orders regarding 

desegregation of buses, maintenance of attendance boundaries, 

teacher assignment, and course offerings. Lee v. Marengo County 

Board of Education, 454 F. Supp. 918 (S.D. Ala. 1978). The school 

board was described as "obdurately obstinate" (id. at 931) in 

its failure to fulfill its constitutional obligation to desegregate 
21/ 

the schools (id. at 932)-.- In this case, although the district 

court found (R. 421) that "the main objective" of the county 

board appeared to be to make the system "palatable to whites," 

the court did not find "that any unresponsiveness to black 

needs has had a serious impact on equal educational opportunities." 

The court also noted (R. 423) that faculty assignments 

had not been in compliance with the die taLes of Singleton v. 

Jackson Municipal Separate School District, 419 F.2d 1211 (5th 

Cir. 1969), until 1978, which the court recognized (R. 423-424) 

to be "an unresponsiveness on the part of the Board to the dictates 

of the law" but not "injurious to black needs in particular." 

In sum, the court concluded that the school board was 

responsive to black interests because it had eventually adopted 

a unitary system and thus provided black school children equal 

21/ The F1fth Circuit agreed with this characterization of the 
school board's attitude. Lee v. Marengo County Board of Education, 
588 F.2d 1134, 1135-1136 (Stli Cir. 1979) cert. denied, 444 u.s. 
830. 



l .. 

- 36 -

educational opportunities. However, the court recognized (R. 421) 

that the unitary system had been achieved •only after extensive 

litigation, and that had blacks possessed adequate input in the 

system, it probably would not have taken so long to achieve." 

There could hardly be a more precise description of unresponsive­

ness as it relates to minority vote dilution. The district 

court is clearly erroneous in finding that a school board which 

has adopted a unitary system only in response to a federal court 

order is responsive to black needs. 

Even if the court's findings with respect to unresponsive­

ness are upheld, the court placed undue emphasis on this factor. 

The court deemed it a "momentous" issue (R. 440 n.35) and indeed, 

based its dismissal of the case on that crtlcial finding ( R. 501). 

But unresponsiveness is "not an essential part of a plaintiff's 

case," S. Rep. No. 97-417, supra, at 29 n. 116~ it is only one 

among many circumstances that can be considered. See also 

Rogers v. Lodge, 50 u.S.L.\'l. at 5044 n.9~ McMillan I, supra, 638 

F.2d at 1248-1249 and n. 18~ Zimmer, supra, 485 F.2d pt 1306 and 

n.26. Defendants• proof of some responsiveness thus does not 

negate a showing of dilution "by other, more objective factors," 

s. Rep. No. 97-417, supra, at 29 n. 116. 

4. Enhancing factors. There are other factors which exist 

in Marengo County that Congress and the courts have recognized 

enhance the likelihood of dilution of minority voting strength. 



- 37 -

Although not per se impermissible, a majority vote requi~ement 

has been •severely criticized as tending to submerge a political 

or racial minority,• Zimmer v. McKeithen, supra, 485 F.2d at 

1306. See also Rogers v. Lodge, supra, 50 U.S.L.W. at 5044. It 

exaggerates the •winner take a11• tendency of an at-large system. 

The staggered terms and residency districts can further enhance 

the dilutive effects of the at-large system. Where these features 

do not exist and several seats are available to which the top 

vote-getters are elected, a voting minority in an at-large system 

can elect candidates of its choice by concentrating their votes 

on a few candidates or by single-shot voting. Although the 
I 

district court concluded (R. - 431) that the residency districts 

did not enhance the dilutive effects of the at-large system, the 

evidence does not support that view. Blacks have not succeeded 

against whites in head-to-head contests for these posts. 

The sheer geographic size of Marengo County and its •ex-

tremely rural• character (R. 430) can also adversely affect 

black political power. Rogers v. Lodge, supra, 50 u.s.L.W. at 5045. 

Incumbent county commissioners testified (Tr. 150-151, 193) that 

their campaigns cost between $2,000 and $4,000. These facts 

together with the fact that the mean income for blacks is about 

half that of whites ($3,175 compared to $6,478) (R. 391), make it 

more difficult for blacks to campaign effectively (R. 430-431). 

/ 



D. 

- 38 -

This Court should reverse the fudgment of the district 
and remand for the entry of re ief 

A chang~ in the law between trial and appeal sometimes 

requires a remand for new findings. See, ~, Concerned Citizens 

;I of Vicksburg v. Sills, 567 F.2d 646, 649-650 (Sth Cir. 1978); 

Kirskey v. City of Jackson, Mississippi, 625 F.2d 21 (Sth Cir. 

1980). However, such a course is not required here. 

The focus of inquiry under Section 2, as amended, is whether(~ 

there has been a denial of equal access to the political process. 
0 

The district court made its findings based on the same type of 

evidence Congress intended courts to consider under the amended 

statute. This case was tried four years ago. It has already 

been on appeal and remanded once. Additional proceedings on the 

question of liability would be repetitive and would disserve the 

interest of judicial economy. On the strength of the evidence 

in this record, the district court on remand could not correctly 

enter judgment for the defendants. As the Supreme Court recently 

observed in Pullman-Standard v. Swint, SO U.S.L.W. 4425, 4430 

(U.S. April 27, 1982), it is "elementary• that where "the record 

permits only one resolution of the factual issue" a remand need 

not be ordered. In such circumstances, as the Fifth Circuit has 

indicated in a number of its voting rights cases, an appellate 

court may properly direct the district court to enter judgment 

for the plaintiff. See, e.g., Zimmer v. McKeithen, supra, (revers-



} ' 

- 39 -

ing district court finding of nondilution and directing entry of 

judgment for plaintiffs); Kirksey v. Board of Supervisors, supra, 

(same); United States v. Board of Supervisors of Forrest County, 
22/ 

supra, (same}-.-

The question of what relief would be appropriate is one 

which must be addressed first by the district court. Rogers v. 

Lodge, supra, 50 u.s.L.W. at 5044; Albemarle Paper Co. v. Moody, 

422 u.s. 405, 416 (1975}. The amendment to Section 2 is not 

intended to effect any change in the manner in which courts 

formulate remedies. The Senate Report indicates that traditional 

equitable principles are to guide courts in fashioning relief 

which "completely remedies the prior dilution of minority voting 

strength and fully prov1des equal opportunity for minority citizens 

to participate and to elect candidates of their choice" (S. Rep. 

No. 97-417, supra, at 31}. 

22/ 28 u.s.c. 2106 provides appellate jurisdiction to "direct the 
entry of such appropriate judgment, decree, or order, or require 
such further proceedings to be had as may be just under the 
circumstances." 



- 40 -

CONCLUSION 

this Court should reverse the judgment of the district 

court and remand with instructions to enter judgment for the 

United States and to devise appropriate relief • ... 
Respectfully submitted. 

\VM. BRADFORD REYNOLDS 
Assistant Attorney General 

CHAS. J. COOPER 
Deputy Assistant Attorney General 

~ ~ It vVt .B.,. ¥'-~ 
Jn;DUNSAY SILVE U 
JOAN A. MAGAGNA 

Attorneys 
Department of Justice 
Washington, D.C. 20530 
(202) 633-4126 



-
CERTIFICATE OF SERVICE 

I hereby certify that I have served two copies of the 

foregoing brief and a separately bound volume of record excerpts 

to counsel as indicated below this 25th day of October, 1982. 

H. A. Lloyd 
Lloyd, Dinning, Boggs & Dinning 
P • 0. Drawer Z 
Demopolis, Alabama 36732 

Cartledge W. Blackwell, Jr. 
Gayle & Blackwell 
P.O~ Box 592 
Selma, Alabama 36701 

0 n ::!!!!1~ -a~ 
torney