Elam v. Dalton Elam Plaintiffs' Reply Brief

    at.J

t

IN
roR

THE T'NITED STATES DISTRICT COURT
THE EASTERN DISTRICT OF VIRGTNIA

RICHMOND DIVISION

,Tt H. ELAM, et o1.,

Plaintiffs,
V.

JOEII H . DALTON, et €r1. ,

Defendants.

CTVIL ACTION
NO. 81-0516-R

EIA}I PT,ATWTTFTS' REPLY BRIEF

I. THE ATTORNEY GENERALIS SECTION 5 OBJECTIONS TO
TEE 1981 HOUSE A}'ID SENATE PI.ANS JUSEIFY TNJUNCTTVE
RELIEF AGAINST THOSE PI.ANS.

Since our first briefs were filed, the Attorney GeneraL

of the United States has objected, Pursuant to Section 5 of the

Voting Rights Act of 1965, to the Senate and House plans which

are the subject of this action. Copies of those objection letter

are attached. Because these Section 5 objections are sufficient

for the Court to enjoin implanentation of these plans--we have

filed a motion for injunctive relief against implementation of

the House plan for the L981 elections--this Court need not d,ecide

the constitutional issues presented in this action. If, however,

the Court determines that these objection letters are not

sufficient to bar implementation of the 1981 House plan for the

1981 House elections, then the Court must determine whether the

1981 House plan meets constitutional requirements.
I

We are filing this Reply Brief without Prejudice to our

argument, presented i.n our motion for injunctive relief, that

these constitutional issues need not be reached, and that this
Court should enjoin implementation on the 1981 House plan on the

basis of the Section 5 objection.



rI. THIS COURT SHOT'LD RE.IECT THE PROPORTED
STTPUI.,ATION BEIrWEEN TITE SPOTSYL\AI{IA
PIATNTITFS AND TIIE STATE OPFICIAI, DETENDAI{TS
REVISING DISTRICTS TN TTIE-.LEGISLATT\ELY-
ENACTED 1981 TIOUSE PL.AN

The state official defendants write their brief (pp. 2-3)

as if the plaintiffs'challenge to Districts 30131 and 32 "has

been resolved" by a private agreement between the plaintiffs and

defendants in Cosner v. Dalton, Civil No. 81-0492-R. This

purported stipulation has not and should not be approved by this
Court. The parties in that action entered into an agreement to

revise the afLocation of seats to Districts 30, 31 and 32, and

then took a telephone poll of the members of the General Assembly.

The proferred stipulation purports to constitute a legislative
revisj.on of the 1981- House plan as enacted by the General Assembl

This Court is without authority to approve this change.

First, although these actions have been consolidated, and the

plan under consideration is challenged by plaintiffs in all the

actions, none of the plaintiffs in any of the other actions have

agreed to this purported stipulation. Approval of a stipulation
such as this could have enormous consequences. Although a change

such as this affects the legislative representation of 283,472

persons living in four counties, no hearing has been held on the

purported change, nor has an opportunity been extended for any

party to this litigation to object and present evidence and

reasons in support of their objection. Parties from one county,

SpotsyLvanj.a, should not be allowed to enter into a private

agireement which adversely affects the legislative representation

of citizens living in another county--Henrico--without any

rudj-ments of due process being observed.

Second, the change does not meet the requirements of a

legislatively-enacted changer oE a court-ordered change. As

the Conunon Cause plaintiffs point out in their brief, a statutory

amendment in Virginia can only be added by the General Assernbly,

and not by a court or by administratj-ve officers of the state.

-2-



Corwron Cause Plaintiffs' Brief , P. 11, n. 19. The change fails
to meet the reguirements for a eourt-ordered plan because it
employs multi-member d,istricts and fails to achieve de minimis

equality of population among the districts. See Chapman v. lteier,

42O. U.S. 1, 14-27, 95 S.Ct. 75L, 42 L.Ed.2d 765 (1975).

This purported stipulation therefore should be rejected

by this Court.

III. DEFENDAI{TS HAVE FAILED TO SHOVI TEAT THE TOTAL
. POPUI.ATTON DEVIATIONS IN THE 1981 HOUSE PLAN

II{EET CONSTITUTIONAL REQUIREUENTS

A. Defendants have Failed to Justify their t{ethod
of Measuring Population Variances in Floterial
Districts. 

,

The extreme population variances in the floterial d,istric

in the 1981 House plan (Elarn Plaintiffsr Trial llemorand,um, p. 34)

measured by calculating each sr.rbdistrict's share of the rePre-

sentation in a floterial district, make the 1981 House plan

malapportioned by a total deviation of 55t. Defendants, in their

brief (pp. 44-47), do not dispute the accuracy of these statistic

but simply dispute the method of caLculation. Defendants argrue

that the population variances should be calculated on the basis

of the "total number of delegates allocated to the districts,
j.nclud.ing the floater delegate" (P. 44) .

While they refer to this method as "the traditional House

method' (id. ) , defend,ants have totally failed to justify their

method of calculation as a matter of law, and there is no support,

in this record for this method of calculation. Neither of the

two cases upon which they rely, ReynoLds v. Sims, 377 U.S. 533,

84 S.Ct. L362, 12 L.Ed.2d 506 (1964) , and. Mahan v. @!!, 410

U.S. 3I5, 93 S.Ct.979, 35 L.Ed.2d 320 (1973), supports their

method of calculation or tolerates extreme population variances

in f loterial districts. In Reynolds, the Supreme Coi.rrt merely

held that state legislatures are not forbidden from using

floterial districts, but those districts must stiIl provid.e

equality of population:

]/ Throughout their brief , the state of f icial defendant
repeatedly refer to the plaint,iffs in this action as the "ACT,U
(footnote continued) -3-



"Single-member districts may be the rule in one
State, while another State might desire to
achieve some flexibility by creating multi-
merober or f loteriaL d,istricts. Whatever the
means of accomplishment, the overrid,ing objec-
tive must be substantiai eguaffin
ffio-ng the various districti, so Lfrat Lne vote of- any citizen is approximately egual in weight to
that of any other citizen in the State. " 377
U.S. at 579 (emphasis addedi footnotes omitted).

In Mahan the question of measuring malapportionment in floterial
districts was not decided either by the District Court or by the

Supreme Court, (Elam Plaintiffsr Trial Memorandum, p. 34).

The computation method urged by the defendants was

specifically d,isapproved by the court in Stgu! v. Bottorff, 246

F. Supp. 825 (S.D. fnd. 1965) (three-judge court). The court
particularly noted the malapportionment in a three-county

floterial district composed of }larion (4241090), Hendricks (19,I15

and Morgan (2313041 Cor:nties. Under this pLan, one senator was

elected from all three counties, and seven senators were elected

from Marion. Defend.ants argued that this d.istrict was properly

apportioned because, dividing the total population of the

floterial district (a11 three counties) by al,I eight senators,

the population variance was only 3t. The District Court, noting

the extreme population disparities within this floterial district,
rejected this approach:

"We think the defense asserted that the voters
of Morgan and Eendricks Counties are treated
equally with other voters because the entire
voting population of senate district 29 divided
by eight, the nrrmber of senators allotted to
Marion, Morgan, and Hendricks Counties closely
approximates the size of the ideal district,
avoids reality. The voters in lt{organ and
Hendricks have no participation in the elec-
tion of the seven senators from the single
county d,istrict of Marion. Votes in Hendricks
and Morgan have less than one-ninth the weight
of votes in Marion County." 246 F. Supp. at 830.

Defendants' method also was disapproved--by inplication--
in this Court I s decision in l{ann v. Eig, 254 F. Supp . 24L

(n.O. Va. 1965) r-aff rd per curiam sub nom. Burnette v, Davis,

F'ootnote 1 continued.
plaintiffs. " TheiFhas been no
counsel for the defendants have
ACLU is a party to this action
represent the ACLU.

-4-

indication in this action, and
been repeatedly reminded that the

or that the plaintiffs in any way

*I .



382 U.S. 42, 85 S.Ct. 18I, 15 L.Ed.2d 35 (1955). In that Plan,

one delegate was elected from Rockingham County and the City of

Harrisonburg (53,363 total PoP.I, and i second del,egate was

elected from a district which combined Rockinghasr and [Iarrisonbu

with Shenandoah and Page Counties (37,397). The Court struck d

this floterial district for excessive malapportionment, holding

that "Shenandoah with Page suffers from a clear under-rePresen-

tation." 245 I'.Supp. at 246. The Court thus impliedly rejected

the method of calculation urged by the defendants here, because

that method would not have revealed the "invidious discrimination"

(id. ) suffered by Shenandoah and Page in this floterial district.

The Court's ruJ-ing was not based merely on the factr ds

defendants argue, that Shenandoah and Page had no direct rePre-

sentative in this floterial district. If Shenandoah and Page

were, by population, entitled to two delegates (as District 30

is in the 1981 Eouse plan), but were given only one direct

delegate pILs a small percentage of the floater, the underrePre-

sentation would have been just as invid,ious.

Defendants I apProach aLso was speeifically repudiated

by the District Court in Kilgarlin v. Martin, 252 f. SupP- 404,

418-24 (S.D. Tex. 1955), rev'd on other qrounds sub nom.

KiLgarlin v. 8i11, 385 U.S. 120, 87 S.Ct. 820, L7 L.Ed.2d 77L

(1967). In the Texas reapportionment plan challenged in that

case, Nueces County (221,573) was combined in a floterial

district with Kleberg County (30,052). Neuces vras given three

representativesr and one floater was elected at-large by both

cor:nties. Defendants there--like the defendants here--argrued

that the district was properly aPportioned, because dividing

the total popuLation ot the floterial district (25I,625) by

four representatives resulted in a variance of only :lt. "This

analysis does not apProach the problem eorrectly, however, " the

court held. 25, ?. SuPP. at 42L. The court calculated that

-5-



with a population of 30,052, Kleberg County had half the popu-

lation necessary to. elect one representative to the House of

Representatives. Its population in the floterial district,

howeverr 9dv€ it only one-eighth share in electing the floater

representative. "Thus, the vote of a resident of Kleberg County

is diluted so that it only has 25t of the weight that it should

ideally have,' Id.

The method of computation used by the court in Ki.!81.i3,

then, not only specifically disapproved the rnethod urged by

defendants here, but specifically endorsed the method urged by

the plaintiffs.
The method of calculation esPoused by defendants not on

has no support whatsoever in the 1aw--a11 the reLevant cases a

contrary--but also has'no support in the record in this case.

Dr. Robert J. Austin, defendants' principal witness and upon

whose testimony they reJ.y to sustain this PIan, admitted in his

deposition that any accurate method of calculating population

variances should account for proportional voting strength in

d,istricts, that the "traditional House method" of calculating

variances in floterial districts does not account for the

imbalance of population in the stbdistricts, and that the allo-

cation of population method better refleets population dis-
parities .in. floterial districts. Austin dep., Pp. 455-58.

"Q. Which method of calcuLating variances in
floterial'districts best reflects the actual
population distribution in floterial dis-
tricts, the method of allocatj.on used by
Mr. E1y [the allocation of population method].
or the traditi-onal House method?

"A. If you are examining the floterial area,
strictly in terms of the two infividual
districts such as you have identified, then
a proportional method better reflects that
* * *." Id., p. 467.

The allocation of population method does not, as

d,efendants argue_, attempt to assess voting strength (Defend,ants I

Trial Memorandum, P. 451, but rathe:i is based on population,

affif 6r:r?_'

n1y

rA

-5-



il
il

which is the necessalaz basis for measuring all population

variances. It is not necessarily based on which countyrs voters

can control the election of delegates, although this certainly

may-be a factor in the analysis, but rather is based on the

simpLe fact that, for example, voters in CaroLine, Hanover, and

Spotsylvania Cor:nties have no votes for Henrico's three direct

delegates. Therefore--as the court correctly pointed out in

Stout v. Bottorff, supra--it is improper to include them when

calculating the popuLation variance for that subdistrict.

This Court therefore should hold the 1981 House plan

unconstitutional on the basis of the excessive population

d,eviations in the floterial districts.
B. Defendants are Precluded by Existing Case Law

from Justifying the Extreme Population Deviations
F'ound in the 1981 House Pl-an.

Defendantsr argument in this case is essentialJ.y a

bootstrap argument. They have eombed the cases for judicial

language indicating that a legislature may legitimaiely consider

their stated criteria (State Defendantsr Trial l.lemorandum, Pp.

15-21) , and then argiue that these criteria provide constj.tutional
justification for the extreme popuJ.ation deviations found in the

1,981 House plan.

None of the cases which they cite, however, support their
premise that these criteria may justify total population

deviations of 55t or even 26.53* (excluding floLeriaL districts)
and all of the cases have rejected plans with comparable

deviations. Of all the criteria they enunerate, preserving the

integrity of politi.cal subdivision boundaries is the only

"rational state policy" accePted by the Supreme Court as

justifying an overall devj.ation greater than 10t, and Mahan v.

Howell , 4l.O U.S. 3I5, 93 S.Ct, g7g, 35 L.Ed.2d 320 (igZt), pre-

sented unique circumstances not present here.

No Fed,eral court has successfully attempted to justify

a legisJ-ative reapportionment plan with a totaL deviation higher

-7-



than 15.4t, the Mahan decision suggests that this level of

deviation may be the absolute maximum, and on case since then

has given any contrary ind.ication. Indeed, the Court in Gaffne{

v. Cumminqs, 412 U.S. 735, 744, 93 S.Ct. 232L, 3'7 L.Ed.2d 298

(1973), gave clear indication that deviations this high are

simply too great to be sustained by any justification:

'As these pronouncements have been worked out in
our cases, it has become apparent that the larger
variations from substantial eguality are too great
to be justified by anv state interest so far
sugqEsEeA; T-here were thus the enormous variations
.trTdEfvrn in the early cases beginning with
Reynolds v. Sims, as well as the much smaIler, but
neveEElbss-fficceptable deviations, appearing in
later cases such as Swann v. Adams, 385 U.S. 440
(1967) lzs.65rl; Ki16'a n v.@, 386 u.s. r20
(1967) 126.48t1 ; ffiETEornb ifrhavis, 403 u.s.
!24, 161-153 (1971) tU:7tET:" (ffieGis and
deviations added) (footnote omitted).

Contrary to the state official defendantst argument that

these cases permit state policy justification of such deviations

(pp. 30-36), the cases i.n fact hold that these deviations are

simply too great to be sustained by any state justificatj.on. In

Whitcomb v. Chavis, 403 U.S. 124, 151-63, 91 S.Ct. 1858, 29

L.Ed.2d (1971), the Court held the state Senate deviation of

28.20* and the House deviation of 24.78* unconstitutional simply

by comparison with the 25.65t deviation held excessive in Swann

v. Ad,ams, 385 U.S. 440, 87 S.Ct. 559, 17 L.Ed.2d 501 (1957).

Since the Court did not discuss any of the purported justifica-

tions for these high deviations, the clear implication is that

they were too excessive to be sustained by any state policy.

In Kilgar1in v. Hi1l, 385 U.S. 120, 87 S.Ct. 820 , L7

L.Ed.2d 77L (L967), the District Court found that the variances

totalling 26.48* "lrere amply justified here because they resulted

from a bona fide attempt |o conform to the state policy requiring

legislative aPpoft,ionment plans to respect county borrndssigg

wherever possible." 385 U.S. at L22'23. Contrary to defendants'

argument (p. 32)-, the Supreme Court did give a clear signal in

dictum that this d,eviation was too great to be sustained by this

-a-



justification:

"we are doubtful, however, that the deviations
evident here are the kind of rminor' variations
which Reynolds v. Sims ind,icated might be
j ustiffffi]fT,oca1lZTicies c6unseU.ng the
maintenance of established poJ-itical subdivisions
in apportionment p1ans. 377 U.S. 533, 578-579."

- Id. at 123.

fn Swann v. Adams, supra, the state simply failed to

present any justification for the high total deviation. The

Court did indicate, however, that the 'conununity of interest"
theory advanced by the defendants here eould not justify any

significant deviation from equality of population, by noting that

"Reynolds v. Sims indicates the constitutional
IffiIety Fmaintaining deviations from the
equal. population principle in deference to area
and economic or other grouP interests. 377 U.S.
333, 579-580." 385 U.S. at 447.

But even if deviations this high could be justified by

"legitimate considerations incident to the effectuation of a

rational state policyr" defendants have failed in this case.

First, Virginia has no overall state policy against violation
of political subdivision boundaries. Political subdivisions

were divided i.n the 1971 and 1981 state Senate plans, which

employed single-member d,istricts statewj.de in the L972 Congres-

sional redistricting, and in the,1971 anC 1981 House PIan in the

division of Fairfax County into districts. Austin deP. r PP.

307-L2. There has been no indication that these divisions of

political subdivisions in Senate and House plans created, any

problems with regard to the introduction and passage of local

legislation. Id., pp. 404-08. Second, the record in this case

shows that there vrere nunierous plans consid.ered by and available

to the House of Delegates which respected political subdivision

boundaries but which produced substantially smaller deviations

from population equality. Elam Plaintiffs' Trial Memorandum,

pp. 13-15. See Kilgarlin v. Hil1, suPra, 386 U.S. at L23-24i

Swann v. Adams, supra, 385 U.S. at 445 (availability of al-ternate

plans with lower deviations which respect political subdivision

-9-



boundaries demonstrates that state policy does not necessitate

extreme deviations). Third, the extreme variances in the House

plan as passed exceed, the "constitutionality permissible

guidelines" which defendants in their brief concede (pp. 10-11)

were adopted by the House of Delegates to govern the reapportion-

ment process. See Elam Plaintiffs' TriaL llemorandum, pp. 5-5.

Defendants' attempt to sustain this plan by resort to
Dr. Austinrs area analysis (State Defendantsr Trial }lemorandun,

pP. 22-25) must also fail. Dr. Austin divided the state up into
seven geographical areas, and. then computed the number of
delegates each area tas entitled, to based, on its overall popu-

lation. No court have ever accepted this method of analysis to
determine compliance with the one-person, one-vote principle,
and defendants have not ind.icated, any authority for it. This

type of analysis cannot withstand scrutiny. Firstr the residents

of each of the seven areas do not participate equally in the

elect,ion of delegates from those areas. Delegates are elected

from legislative d.istricts, not geographic areas. Second, this
method of analysis couLd be used to conceal gross disparities
of population among districts. According to this method of

analysis, one Cistrict might be rlnderrepresented by 20*, and

another d,istrict might be overrepresented by 20*, but these

disparities. would offset each other in the geographical area

as a whoIe.

Finally, the gross disparities of population in this
plan cannot be justified by Virginiars geographical features.

First, the notion that the noncontiguity of Virginia's Eastern

Shore justifies a population variance of -14.15t (State

Defendants I lrial Memorandum, p. 25) should be rejeeted,.

because the Eastern Shore d.istrict was excluded from- the

District Courtrs calculations in 197L, when the variance

-6.5t, does not mean that it should be excluded. fron ,+he

Just

was only

19 81

calc-.r1a?ions, when-the Eastern Shore is overrepresented by 14.15t.

Should the Eastern Shore be d.isregarded if its over-

representation gets as high as 40 t or 50t?

-10-



It is not true that the unique location of the Eastern Shore

coturties makes their combination with any other counties

impractj-cable (Corunon Cause PLaintiffsr Brief , p. 22) . The

state Senate plans have successfully achieved equality of
popnrlation by combining the Eastern Shore counties with

Tidewater counties with which they share a conununity of interest
(see EIam Plaintiffsr Ex. 4),2/ and there is no good reason why

this cannot be done in the House p1an.

Seeond, the geographical features of Southwest Virginia
also fail to sustain these gross populatj.on deviations. The

plans subrnitted by Conmon Cause and the NAACP show that lower

population variances may be obtained in this area even keeping

poJ.itical subd.ivisi-on boundaries intact. The Common Cause

plaintiffs have shown quite clearly that the districts in this
area d,o not reflect communities of interest, and in fact disre-
gard limited transportation networks and natural nnountain

barriers. Comrnon Cause plaintiffs' Briefr pp. 38-39. Prom this
evidence the Court may conclude that the existing d,istricts in
this area were presenred solely to protect the political self-
interest of the incumbent delegates, a factor which no court has

ever held sufficient to defeat the noverriding objective" of
population equality.

Because the deviations in the 1981 House plan are too

great to be justified by any state policy, and because the

evidence fails to present any adequate justification for these

excessive deviations, this Court should enjoin implementation

of the 1981 House plan for failure to comply with one-person,

one-vote standards.

X/ In the 1981 Senate plan, also passed by the House
of DelegEes, the counties of Accomack and ttorthampton are
combined in Senate District 3 with the counties of James City
and York, the City of Williamsburg'and part of Newport News.

-11-



IV. THE EVIDENCE SHOWS THAT MULTI-ME!,TBER DISTRICTS
IN THE URBALI AREAS WERE R,ETAINED FOR A RACIALLY
DISCRIMINATORY PURPOSE .

The state official defendants in their brief completely

misrepresent our argument when they contend (p. 37) that the

ElaS Plaintiffs' argue (1) that the 1981 plan is invalid because

it is not comprised soIely of single-member d,istricts, and

(2) that single-member d,istricts are constitutionally required

to maxirnize black voting strength. Nowhere in our trial
memorandum do we make these arguments, and in fact our memorandum

contradicts these assertions, We have recognized that multi-
mernber d,istricts are not unconstitutional per se (Elam Plaintif fs'
Trial Flemorandu, p. 41), and contend that the urban multi-member

districts in the 1981 House plan are unconstitutional--not becau

they fail to maxfunize black voting strength--but because they are

purposeful d,eviees to further racial d.iscrimination (id. ) .

Defendants erroneously contend (pp. 48 ff.) that plain-
tiffs have failed to prove both discriminatory effect and

discriminatory purpose in the chalJ.enged d,istricLs. _U The

argument is contrary to both the facts and, the 1aw presented.

(1) Discriminatory impact. The facts presented in this
record d.emonstrate without doubt.that at-large voting in multi-
member House districts in Richmond, Norfolk, Portsmouth, Neurport

News, and Hampton submerge large black population concentrations-

large enough for separate representation--in white citlruide votin
majorities. The fact that four black delegates have been

elected from three of these citi.es does not, in and of itself,
contradict a finding of d,iscriminatory impact. Mclntosh Countv

Branch, NAACP v. City of Darien, 605 F.2d 753, 756 (5th Cir. L979)

2/
obj ectioil-to
reply on the

Because of the Attorney Generalrs
Districts 27, 28, 35, 41, 45 and
urban multi-member d.istricts.

Section 5
4'1 , we- focus our

^LZ-



First, the only blacks who have been elected to the

House of Delegates have been elected as a result of slating by

Democratic Party ofiicials. Gilman dep., pp . 27, 33-35 , 4g-52.

As a result, these black delegates 1.. totally dependent on the

predominantly white party organization for their reelection, and

black voters--who constitute a minority of the voters in these

cities--are denied an effective voice in the electoral process.

T.d. 3/

Second, the election results contained in Virginiars
Sectj.on 5 submission to the Department of Justice (E1am

PLaintiffs' Exs. 3) and the official reports of election resuLts

show that the black deregates have run at or near the bottom of
the multi-member slates in Richmond and, Norfolk (prior to the

last election). In both of these cities, the number of delegate

seats has been decreased in the 1981 plan (ttre number of d.irect

seats in Richmond was reduced from 5 to 4, and in Norfolk from

7 to 5), and as a result, one or more of the four black delegates

niay lose their seats as a resuLt of this p1an. I{ilder dep. , p. L2

Third, plaintiffs' single-member district plan shows that
these muLti-member districts prevent the election of add,itional

black deJ-egates from Norfolk (second d,istrict 54.55t black),
Portsmouth (7L.79t black), and possibly Hampton (50.08* black).
Thus, even with slating, the multi-rnember districts significantly
diminish black representation in the Eouse of Delegates.

Contrary to defendantsr argument, the vote on the llartin
Luther King holiday bill does not show that the urban multi-member

district delegates are responsive to their black constituents
(State Defendantsr Trial lt{emorandum, p. 53). The significance of
this legislation is greatly exaggerated, and the Court may take

judicial notice of the fact that the bill was vetoed by Governor

Da1ton, and the General Assembly lacked the votes to override this

_L/ r ISJ lating indeed increases or encourag€s r if
not CemailEs, that black legj-slators and, officials be attuned,
to those people who decided about the slate rather than on
their consti,tuents. " p. 3 5. (Footnote cont,inued)

-13-



veto. 3/
' (2) Foreseeability. Defend.ants do not dispute--in fact

Dr. Austin admitted it (Austin dep., p. 378)--that this dilutive
impact is the reasonably foreseeable result of retaining multi-
member districts in these urban areas (see EIam Plaintiffs' fria:-
Mernorandum, pp. 25-28). The law is clear that this constitutes
strong evidence of a discriminatory purpose. " [A] ctions have

foreseeable and anticipated disparate impact are relevant

evidence to prove the ulti:nate fact, forbidden purpose."

Columbus Board of EdUcation v. Pgn1ck, 443 U.S. 449, 464-65,

99 S.Ct. 294L, 51 L.Ed.2d 666 (1979). When the adverse conse-

quences of a challenged action are inevitable, as they are here,

'a strong inference that the ad,verse effects \rere desired can

reasonably be drawn.n Personnel Admrr of llassachusetts v. Feeney,

442 U.S. 256, 279 n. 25, gg S.Ct. 22821 50 L.Ed.2d 870 (1979).

All the black witnesses who testified at the public hearings

prior to enactment of this plan made the House P and E Conunittee

members aware that multi-member d,istricts in these urban areas

diluted black voting strength, and that single-member d,istricts
were necessary to overcome this dilution. The hearing transcript
indicate that the members of the House P and, E Committee totally
failed to respond to this grievance, and, no explanation has been

given for the failure of the House of Delegates to give any

resPonse .to this discri.mination. The evidence is uncontradicted

that this decision to retain urban multi-member d,istricts was

made with the full awareness and expectation that it would dilute
the voting strength of the black electorate in these urban areas.

Footnote 3 continued)
"[T]hey lblack slated candidates] owe their place

the slate to white politicians." P. 27.

" [f]n Norfolk and Newtrlort News cases, . both
those tblackl legislators owe their position on the ballot
tbe slating process and the slating Process is controlled
whiteg. " p. 50.

_4J/ Defendants t focus on the Supreme Court's deci.sion
White v.-deqister (pp. 50-54) is misplaced, since the plurality*if,--dty oF-fi-ffiillE v-. 

- Bolden gave little weight to those f actors
evidenEe of discriminatory PurPose. 446 U.S. at 72-74.

-14-

on

of
to
by



tl

lt

il

lr

(3) Absence of an adequate non-racial reason. None of 
-

the criteria advanceC by the defendants in support of the 1981

House plan support the maintenance of nnulti-member districts in -

the urban areas, particularly in light of plaintiffs' showing

that single-member districts can be devised without crossing

political subdivision boundaries (except in two small areas).

See Goldberg dep., pp. 137-38. Single-mernber d.istricts in these

urban areas could have been devised which provide poPulation

eguality,. maintain existing political subdivision boundaries, and

recognize communities of interest. In fact, adherence to the

criterion of avoiding large-multi member districts and, creating

single-member districts whereever possible (Austin deP., PP. 29,

155) , if folLowed, in the urban areas, would have required single-

member d.istricts, and the failure to do this violates a principal

crj-terion of the 1981 House p1an.

No evidence has been produced showing that single-member

d.istricts in these urban areas would affect the quality of

representation or impede the introduction and passage of 1ocal

legislation (see Austin dep., pp. 407-08) (no empirical studies

showing that single-member districts would impede loca1 legis-
lation). As of 1978, the majority of all states, and most

Southern states had single-member House d,istricts which divided

political subdivisions. Cor:ncil of State Governments, "The

Legislatures," The Book of the States: 1978-79, tables PP. 14-15

(1978). Political subdivisions aLso have been divided in

Virginia districting p1ans.

Fairfax Cor:nty was divided up in both the 1971 and 1981

House pIans. Also, since 1971, the Virginia Senate has had

single-member districts statewide (except in Norfoff], and no

evidence has been presented that this has caused any difficulties

in representation.

Ms. Judy Goldberg, a staff member of the American Civil

Liberties Union of Virginia, cond.ucted, a comparative analysis of

-15-



alL bills referred to the Local government committees in the
House and senate from 1978 to 1981. Gordberg dep., pp. 106-14,

DeP. Ex. 13. Although the Senate has single-member districts
whigh sprit up and divide the urban areas of the state, Ms.

Gold,berg for:nd that in three of the four years the average

number of 1ocal government bills i.ntroducea plr legislator was

higher in the Senate than it was in the House, and in the fourth
year (1981) the difference was only .04 (1g., p. 1r2). prom this
analysis, she concluded:

nA factual analysis for the legislation over the
last three years indicates that the Senate does
a better job at introducing local legisl.ation
than the llouse does. Therefore, one would have
to d,raw the conclusion that the representation l,
by single merober d,istricts which divide jurisdic-
tions is more effective or at 1east as effective
dsr than repr6sentation by multj.-member distriets
which do not divide jurisdictions." I<!., p. Il3.

As we have noted in the prior section, there is no strong

state policy in Virginia against dividing political subdivisions.
Political subdivisions were divided in the L97L and, 198I Senate

plans, in the L972 congressional redistricting plan, and in the

l97L and 1981 House plans in Fairfax County (e!Pra., p. 9). The

argument that at-large voting in .the urban areas r,iras retained to
promote effectiveness in representation has no factual support in
this.record, is spurious, and is simpry a pretext for purposeful

d,iscrimination.
Respectfully submitted,

Of Cotrnsel:

LAUGIILfN McDONALD
American Civil Liberties
Union
Southern Regional Office
52 Fairlie St., N.W.
Room 355
Atlanta, Georgia 30303
(404) 523-2721

BARBARA Y. PEILLIPS
LawyersI Corunittee for Civil Rights
Under Law
733 15th St., N.W., Suite 520
Washington, D.C. 20005 -
(202) 628-5700

STEPHEN W. BRICKER
701 East Franklin Building, Suite 15
Richmond, Virginia 23219
(804) 644-1804

Attorneys for Plaint,iffs

WILLIA},I L. ROBINSON
FRANK R. PARKER



CERSITTCATE CF SERVICE

I certify that I have this day mailed,, postage prepaidr'

a copy of the foregoing Plaintiffs' Reply Brief to the following''

counsel:

Robert B. Patterson, Esq.
McGuire, Woods & Batt1e
L400 Ross Building
Richmond, Virginia 232L9

Robert F. Brooks, Esg.
Eunton E Williams
P. O. Box 1535
Ri.chmond, Virginia 232L2

Howard E. Copeland, Esg.
529L Greenwich Road, Suite l\lo
Virglnia Beach, Virginia 23462

Thomas Rawles Jones, Jt., Esq.
439 North Lee Street
Alexandria, Virginia 223L3

william J. KoIaskT, Jt., 5sq-
Judith Barry Wish, Esg.
Lynne E. Prymas , Esg.
Wilrner, Cut1er, & Pickering
1566 K Street, N.rd.
t{ashington, D.C. 20005

Raymond Robrecht, Esg.
LAz North Market Street
Salem, Virginia 24153

Eenry I'tarsh, Esq.
Michael Sussman, 5sg.
Samuel W. Tucker, Esq.
Hill, Tucker & Marsh
509 N. Third Street
Richmond, Virginia 232L9

Anthony F. TroY, Esg.
Mays, Va1ent,ine, DavenPort

& Moore
Box LL22
Richmond, . Virginia 23204

Norborne P. Beville, Ji., Esq.
Beville and Eakir
P. O. Box tlO
Manassas, Virginia 22Li0

T. A. Ernerson, Esg.
9201 Church St., Su:.te 200
Manassas, Virginia 22lLC

Ervan E. Kuirnke , Ji. , Esq.
P. O. Box 58
Dumfries, V:.rgini.a ?2025

I{illiarn G. Broaoius
P. O. Box 27032
Richrnoni, Virginia 23273

STEPHEN W. BRTCKER,

This the 3rd day of August, 198I.