LDF Scholarships to Georgia Students Aim at Desegregation, More Black Southern Lawyers

    .1066 708 NEDERAL REPORTER 2d SERIES
l'

a. But, you don't have pain? t

A. It'e a pain, but it's a dead kind of
pain. The standing is a real sharp pain
where you could-
e. Do you have any difficulty using
your hands?

A. Yeah, yeah. I have arthritis bad in
this hsnd, and this---€ometimes this hand
is so bad I can't even pick up thingrs; I
can't button things; I have difficulty
putting on-
Although Kinsella complained repeatedly

during the hearing about the pain she was
then suffering, the Secretary found that
"ghe sat through the hearing which lasted
l|t houn without any apparent discom-
fort." Every treating physician found Kin-
sella's complaints of pain credible enough to
require treatment. Her expressions of pain
were supported by objective medical evi-
dence. Testimony of a claimant concerning
subjeetive pain and inability to perform
even light work is entitled to great weight,
particularly wher.e it is supported by compe-
tent medical evidence. Dobrowolsky v. Cal-
ifano, ffi6 F.2d 403, 409 (3d Cir.1979). See

also l-cwis v. Weinbrger,54l F.zd 417,42L
(4th Cir.1976).

The only apparent basis for the Secre-
tary's credibility finding is that "[a]lthough
she claims that she was unable to work in
19?7, she filed for unemployment compensa-
tion in 1978 exhibiting the fact that she felt
she wa-q eapable of working at that time."
Of coume, the mere receipt of unemploy-
ment insuranee benefits does not prove abil-
ity to work. I-ackey v. Celebrezze, S49 F.2d
?6, 79 (4th Cir.1965); F/ores v. HEW, 465
F.Supp. 317, Bn-24, (S.D.N.Y.f978). More-
over, in the context of all the evidence, it
was unnsasonable to infer that the applica-
tion for such benefits diminished the credi-
bility of Kinsella's complaints of pain.

It is true the credibility determinations
rcst exclusively with the Secretary. Myerc
v. Richardson, 471F.%) 126F, 126l (6th Cir.
1972). But, viewing the record as a whole,
Allen v. Califano, 613 F.zd 139, 145 (6th
Cir.1980), when such a credibility determi-
nation is based upon so slender a reed, and
is contradicted by the overwhelming medi-

cal and testimonial evidence indicating disa-
bling pain, the Secretary's decision is not
supported by substantial evidence.

I believe we should not allow this mani-
festly unjust decision to stand.

James L BUCHANAN, et al.,
Plaintiffs-Appellants,

Y.

The CITY OF JACKSON and the State
of Tennessee, et al.,

Defendants-Appellees.

No. 8l-5333.

United States Court of Appeals,
Sixth Circuit.

Argued Aug. 30, 1982.

Decided June 7, 1983.

Voting dilution action was brought
challenging atJarge voting procedure for
electing city's three-member board of com-
missioners. The United States District
Court for the Western District of Tennes-
see, Odell Horton, J., entered summary
judgment in favor of city, and an appeal
was taken. The Court of Appeals, Carl B.

Rubin, District Judge, sitting by designa-
tion, held that: (1) absent any allegation of
actual interference in voting or registration
processes, challenge to atJarge voting pro'
cedure for electing city's three-member
board of commissioners failed to state a
claim under Fifteenth Amendment; (2) in
light of necessity for appropriate inquiry
into discriminatory intent in city's atJarge
voting procedure for electing three-member
board of commissioners, voting dilution ac-

tion would be remanded for further consid-

eration of such circumstantial direct evi-
dence of discriminirtorl inten'r as ma1' be

available; and (3) on rcmiin'.]. lrartic. tl '

#rl
s
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ti
rd
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s
E
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--*;-l=*-itsr-



bnglng voting procedure would be given I stein (argued), Charles S. Rhyhe, Wash'

opirtrnity to amend complaint to state ington, D.C., for City of Jackson, et al.

ciaim under amended Voting Rights Act of lVilliam M. L€ech, Jr., Atty. Gen., Ilyil-

,
BUCHANAN v, CITY OF JACKSQN* Ch.., 706 F.2d loCS (tgSt)

, 1067

liam P. Sizer, Asit. Atty. Gen., Nashville,
Tenn., for Governor of Tenn.

Before LMLY and MARTIN, Cirrcuit

Judges, and RUBIN, District Judge'.

CARL B. RUBIN, District Judge.

Plaintiffs filed this action in Ma,nch, 1977

challenging the atJarge voting procedure

for electing Jackson, Tennessee's three-
member Board of Commissioner's.

In their Complaint, plaintiffs alleged that
the aLlarge system violates the Thirteenth,
Fourteenth and Fifteenth Amendments to
the Constitution and various federal stat-
utes by diluting the voting strength of
Jackson's black citizens and depriving them
of meaningful participation in the political
processes of that city. Four years after this
suit was filed, the District Court granted

defendants' Motion for Summary Judgment
based upon the United States Supreme

Court's decision in Mobile v. Bolden, 46
u.s. 55, r00 s.ct. 1490, 64 L.Ed.zd 4? (1980).

On appeal, plaintiffs contend that summary
judgment on the disputed question of dis-

criminatory intent was improper' Plain-
tiffs also seek rcversal of the District Court
on the ground that Ro6Prs v. Ldge, 

-u.s. 

-, 
102 s.ct. 3n2,73 L.&1.2d 1012

(1982), a second voting dilution case, and

the recent amendment to the Voting Rights
Act of 1965, A U.S.C. S 1973 et seq., after
the legal standards upon which the District
Court based its decision.

The City of Jackson, Tennessee is gov-

erned by a three-member Board of C,ommis-

sioners. Each Commissioner is elected at
large and runs for one cf three designated
positions: (1) the Mayor, who serves as

Commissioner of Public Affairs, Public

Safety, Revenue and Finance; (2) the Com-

missioner of Streets, Health, and Sanitation
and Public Improvements; and (3) the

ern District of Ohio, sitting by designation.

1965.
Vacated and remanded.

L MuniciPal CorPoratione c=$(;

Absent any allegation of actual inter-

ference in voting or registration processles'

challenge to at large voting procedure for
electing city's three'member board of com-

missioners failed to state a claim under

Fifteenth Amendment. U.S.C.A. ConsL

Amend. 15.

2. Federal Courts eag39

In light of necessity for appropriate

inquiry intp discriminatory intent in city's
atJarge voting procedure for electing

three-member board of commissioners, vot-

ing dilution action would be remanded for
further consideration of such circumstantial
direct evidence of discriminatory intpnt as

may be available.

3. Municipal Corporations e80
On remand of voting dilution case to

inquire into such circumstantial direct evi-

dence of discriminatory intent in at-large
voting procedure for electing city's three-
member board of commissioners as might
be available, parties challenging voting pro'
cedure would be given opportunity to
amend complaint to state claim under
amended Voting Rights Act of 1965, which
shifted focus of a vote dilution claim under
statute to a discriminatory "effect" or "re-
sult" as opposed to motive or intent. Vot-
ing Rights Act of 1965, SS 2 et seq., 4, as

amended, 42 U.S.C.A. SS 1973 et seq.,

1973b.

Avon N. Williams, Jr., Richard H. Din-
kins, Nashville, Tenn., Napolean B. Wil-
liams, Jr., New York City (argued), for
plaintif f s-appel)ants.

Harold F. Johnson, Russell Rice, Sr., Rice

& Rice, Jackson, Tenn.. Thomas D. Silver-

'The Honorable Carl P ll ..'r:n, Chief Judge of
the United States Disrrrcl ! rrurl for the South-

L*_*



1068

Commissioner of Fxlucation, Parks, Recrea-
tion & Public Property. An individual must
designate which of these positions he is a
candidate for and must receive a majority
of the votes cast in order to be elected. In
the event no candidate rcceives a majority,
a run+ff election is held between the two
candidates receiving the most votes. Jack-
son has utilized the Commission form of
government sinee 1915, when the General
Assembly of the State of Tennessee enacted
Chapter 168 of The Private Acts. prior to
that time, Jackson was governed by a May-
or and alderman elected by geographic dis-
trict.

Plaintiffs in their Complaint made the
following specific allegations in support of
their contention that the at-large system
for electing Jackson's Board of Commission-
ers results in unconstitutional vote dilution.
First, plaintiffs claimed that the political
processes leading to nomination and elec-
tion in Jackson were not equally open to
participation by blacks. In this regard,
plaintiffs cited the fact that no black has
ever been elected to the office of Crcmmis-
sioner or any other city-wide elective office,
the lower registration rate of black votBrs
alleged to be attributable to official action
prior to 1950, racially polarized voting in
instances where blacks had run for city-
wide office, the few blacks who serv'e on
various city boards, alleged discrimination
against blacks in municipal employment,
and the exclusion of blacks from the leader-
ship of political party organizations within
the city. Plaintiffs also claimed that histor-
ically based discrimination and segregation
in housing, education, public facilities and
employrnent, and an alleged disparity in the
provision of municipal services between
black and white neighborhoods, support
their general allegations of unlawful vote
dilution.

l. Bolden involved a challenge to the City of
Mobile, Alabama's at-large system of electing
its three-member Board of Commissioners.
Mobile had utili,ed this system since ]gll and
although blacks represented approximatel),
35.45 of the population, no black had ever
been elected to the Commission. 42:, F.Supp.
384 at 386, 3E8 (S.D.Ala t976)

.,

708 FEDEBTL REPORTER. 2d SERIES

The District Court granted summan
judgment on all of plaintiffs' statutory s1[
eonstitutional claims based primarily on ttrs
Supreme Court's decision ii Aotiti r.;j:
den, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed2d
47 (1980). ln hlden, a case strikingly simi-
lar to that now before us,t the Supreme
Court set forth the standard for determin-
ing the eonstitutionality of an at-large elec-
toral system.

The Court in Bolden first held that in
order to establish a violation of the Fif_
teenth Amendment, a plaintiff must show
both a discriminatory motivation and &n
interference with the actual registration or
voting process. (146 U.S. at 6b, 100 S.Ct. at
1498. Because it was undisputed that
blacks in Mobile "registered and voted
without hindrance," the plaintiff's ru-
teenth Amendment and Voting Rights Act
claims were summarily rejected.2

A majority of the Court in Bolden also
agreed that an at-large voting system vio
lates the F.qual Protection Clause of the
Fourteenth Amendment only if it is shown
that the system "was conceived or operated
as a purposeful device to further racial dis-
crimination." Whitcomb v. Chavis,403 U.S.
124,149,91 S.Ct. 1858, 1872, 29 L.Frt.2d 868
(1971). The disproportionate effects of an
electoral system do not alone establish a
discriminatory purpose. 446 U.S. at 66, 100
S.Ct. at 1499. In applying this standard to
the evidence relied upon by the lower courts
in the case before it, however, no view
commanded a majority of the Court.

Justice Stewart, writing for the plurality,
rejected the District Court's primary re.
liance upon certain of the so-call ed, Zimmer
factors, derived from the decision of The
United States Court of Apieals for the
Fifth Circuit in Zimmer v. McKeithen,4BS

2. The Supreme Court held that Section 2 of the
Voting Rights Act of 1965 "was intended to
have an effect no different from that of the
Fifteenth Amendment itself." 446 U.S. at 61,
l0(r s.cr ar 1496

F.Zll
ing tl
fium
a dii
dstec
uffic
cificsl
DiEtri
cienL'

Fou
srlue
tory i
low et
claime
tion o

upon l

with
8ppI4o{

Beeps
L.Ed.2

IU
marily
Thirte
to stat
grante
claims
rejeck
claims
ord esl
tered i

thougt
ruling,
plainti

8. The
factor
tional
to thr
spons
intere
strenl
prefer
trictit
discri
also c
major
votin6
atJarl
graph
hancir
tion.

4. The
ing a1

Mobil,
lhr [1
ttr g



,

BUCHANAN V. CITY OF JACKSON
ctte ts 7orFrd loe8 (108:t)

1069

:iif
i.%lnl (5th Cir'19?3)'r Although conced'

l*l*n'xffir'#L'#$J:H*'. -A.olri*tory purpose," the plurality

Lt"a tt 
"t 

Zimmer criteria wene not alone

.Jii"i"ot proof of such a purpose' and spe-

#i*ffy t"5*t"a those relied upon by the

;i;ttd C,ourt as "most assutedly insuffi-

#;;; l,ao u.s. at ?3, loo S'ct' at l5o2'{

four members of the Court in Bolden

;;"d that assuming.proof of a discrimina-

Lfo irt nt was required, the evidence-be-

iIJ est^sblished such intent' Justiec White

"i*r"a 
that the plurality's piecemeal rejec-

iir, "t the circumstantial evidence relied

uoon Uy the courts below was inconsistent

#ih tit" "totality of the circumstances"

"rpt"rrt 
endorsed by the Court in Whitc v'

-ilg"tt r,412 U.S' ?55, 93 S'Ct' 2332' 37

L.Ed.zd 314 (1973).

tU The District Court in this case sum-

,""iiy dismissed plaintiffs' statutory and

itrirteenttr Amendment claims for failure

to stat€ a claim upon which relief can be

cranted. Appellants have not pressed these

"'l"irn. 
on appeal. The District Court also

reiected plaintiffs' Fifteenth Amendment

claims based upon Bolden because the rec-

ord estabtished that blacks in Jackson regis-

tered and voted without interference' Al-

itrougt, appellants take exception to- this

rulirig, 
",u 

tina the application of Bo)den to

plainliffs' Fift€enth Amendment claims ap-

3. The Court in Zimmer identified the following
factors as bearing upon a claim of unconstitu'

tional vote dilution: (l) lack of minority'.access

io tt. pto""tt of slating candidates; (2) uye;
sponsiveness of legislators to the particulanzeo

irito""tt of the black community; (3) the

strength of the sEte policy "underlyinC 
ll'-e

prefeience for multi-member or at-large dls-

G"-tit i; *a (4) the existence of past racial

aisctiriinaUot in the community' The Court

also considered the existence of large districts'
."j.titv vote requirements, anti-single shot

,oiini ito"itio"s and the lack of provision for
at-larie candidates to run from particular geo

*"otic suMistricts, as additional factors "en-

f,-"t'"i"g' a claim of unconstitutional vote dilu-

tion. 485 F.2d at 1305.

4. The lower courts in Bolden found the follow-

ing aggregate of Zimmer factors present rn

rtaiuilEi ([ the absence of any black-elected to

it"-go"tb'of Commissioners; (2) discrimina-

tion against blacks in municipal employment

propriate. Absent any allegation of actual

interference in the voting or registration

prccessles, plain[iffs have failed to state a

ilaim under the Fifteenth Amendment'

With respect to plaintiffs' claims under

the Fourteenth Amendment, the District

C,ourt conclutled that plaintiffs had "failed

to offer any proof of discriminatory intent

on the pu"i of defendants," and that the

additional allegations offered by the plain-

tiffs in opposition to defendants' Motion for

Summary- Judgment were insufficient to

support " 
finaing of purposeful discrimina-

ti# under the standard established by Bol-

den.5 The District Court also stat€d that

plaintiffs had "failed to prove that the dis-

puted plan was conceived tn operate as a

purposeful device to further racial discrimi-

nation.6

The appellant argues that the District

Court's decision should be overturned and

the case remanded in light of Congress'

recent amendment of the Voting Rights

Act of \965, 42 U-S'C' S 1973 et seq' and

the recent Supreme Court decision in Rag-

ers v. l,odge, 
- 

U'S. 

-,102 
S'CL' 3n2'

?3 L.Ed.d'iorz (rgsz). For reasons which

will become apparent we will consider these

developments- in the reverse order from

which theY were raised'

Rogers v- ldge, supr:a involved Jet an-

other challenge to an atJarge procedure for

and the dispensing of municipal services; -(3) 
a

hi;t"ry of official discrimination against blacks

i, af"U"."; and (4) the mechanics of the.at-

large system, including a majority vote requrre-

ment.

5. In addition to the allegations in its Complaint'

see text at p. 1068, supra, plaintiff relied-upon

the recent iejection of a preferential-referen-

at m to ct 
"ngi 

the Commission form of govern-

ment, annexitions which increased the num-

bers of white ,ot",., it'd an'alleged disparity.in

*"nl.ipuf senices afforded to black and white

neighborhoods.

6. The Supreme Court's langu'ge .in Bolden'
-- 

uoon whicn tne District Court relied' condemns

a svstem "conceived or operated as a.purpose-

r"i"alui." to further discnmination " Thus'

Lven if an electoral system is enacted rnnocerrt-

fV, it -"V be maintained invidiously resulting in

racial discrimination'

. ---rS



708 FEDERAL REPORTE& 2d SERIES
I

electing a county Board of Commissioners
under the Fourteenth Amendment.? Al-
though Justice Whit€, writing for the ma-
jority, did not ovemrle Bolden, the Court's
decision in Sogners clearly repr.esents a re-
treat from the plurality's views in that case.

The Supreme Court in Rogen first noted
that the lower courts had correctly anticipa-
ted the intent standard set forth in Bolden.
102 S.Ct. al 3277-78. The courts below
concluded that although the at-large system
was racially neutral when it was adopted, it
was being maintained for invidious pur-
poses." Ladge v. Buxton, No. 78-3241, slip
op. at 4 (S.D.Ga.1978). Emphasizing the
deference to be accorded the District
Court's findings of fact, particularly re-
garding issues of intent, the majority held
that the District Judge's determination that
the electoral system in Burke County was
being maintained for discriminatory pur-
poses was not clearly etroneous. 102 S.Ct.
at 3278-79.

In marked contrast to the plurality opin-
ion in Boiden where the various Zimmer
factors relied upon by the lower courts were
singled out and discredited, the Court in
Rogers enumerated the lower courts' find-
ings consisting largely of. Zimmer factors,
and endorsed a "totality of the eirtumstanc-
es" approach to the question of discrimina-
tory intent. Id. at 3279-3L. The Court
concluded that the District Court had based
its finding of discriminatory intent primari-
ly on the existence of Zimmer factors, but
found this acceptable because the Court had
not limited its inquiry to such factors. Id.
al 3278. The majority then upheld the
combined significance of the following evi-
dence relied upon by the courts below as
evincing a discriminatory purpose in the
maintenaner of an at-large system: (1) al-
though blacks constituted a substantial ma-
jority of the county's population, they were
a distinct minority of the registered voters;
(2) the existence of bloc voting along racial
lines coupled with the fact that no black
candidate had ever been elected to the

7. Although the Complaint in Rogers u.as also
brought under the Voting Rights .rri' ,-,i 1965
and the Thirteenth and Fiheenr-h Ar:r. : -''ltents.
the Supreme Court in Rogers did ;, :,t,tress

Board of Commissioners; (3) low blark voL
er registration, attributable to pre-Voting
Rights Act discrimination in the form oi
literacy tests, poll taxes, white primaries,
and educational discrimination; (4) exclu-
sion from the political proc€sses generallv
as evideneed by past discrimination in dem-
ocratic party affairs and primaries, selec-
tion of grand juries, hiring of county em-
ployees, and appointments to county-wide
boards and committees; (5) unresponsive-
ness and insensitivity on the part of elected
officials toward the needs of the black com-
munity, as evidenced by discriminatory pav-
ing of roads, a reluctance to remedy com-
plaints of school segregation and grand jury
segregation, and the Commissioner's role in
the incorporation of an all-white private
school; and (6) the depressed socio+conomic
status of blacks in Burke County attributa-
ble at least in part to inferior education,
and employment and housing discrimina-
tion. Id. at 3279-81.

The Court in Rogers also approved the
evidentiary value of various characteristics
of an atJarge system which may enhance
the denial of access to the political process,

specifically, the large geographic size of the
county, the majority vote provision, the rc-
quirement that candidates run for a specific
seat, and the lack of an1' residency rcstric-
tions on candidates. /d. at 3280-81.

Rogerc v. Ldge restorcs the significance
of circumstantial evidence in determining
whether a discriminatory purpose underlies
the maintenance of an atlarge system.
Wherea^s Bolden appeared to require some
direct evidence of discriminatory intent,446
U.S. at 74, fn. 21, 100 S.Ct. at 1503, fn. 21,
Rogen recog-nizes that circumstantial evi-
dence may, in some cases, be insufficient.
Provided a court considers the existence of
Zimmer criteria as merely evidence of dis-
criminatory intent, rather than the ultimate
issue to be determined, it may properly base

a finding of discriminatory purpose upon
such factors. Also, a court clearly should

these claims, presumably because its decision
in Bolden foreclosed such avenues absent an
allegation of actual interference with the regis-
tration or voting processes.

I

t
.1*t
u
It*
i;

-l

a

I

not fir?
nallY,.[
iE to b€

ing this
prcach
intenL

l2l
trict O
opinion
mer f&(

tion fo
spparer
appellar
sible re
direct
At the
the plu

controll
@urt's
No cou

anticipa
ing deci

the ben

in tug
believe
erT repr
the plu
sppropr
we @n
turned
tion in
doing s

whatso(
tions in
dence r

decision
The qu

tem is I

ry purl
into su,

may be

first ins
Lodge,
Arlingt
Develoi
555, 50

On Jr
tion 2
Prior tr
had hel
F:ftr n

t



BUcIIANAN hfl},"*ol,iicKso]i ' 1071

rct timitits inquiry to such "'id;;;'ii--'r'la*' 
446 u'S' at 61' 100 S'Ct'lat 1496

nally, gogers indicates tr,"i tr," trier of fact arr*)r Accordingly, in order to establish a

iE to be afforded Urou1air"""tion in apply- tiof"iion of the statute' a plaintiff was for'

ing this ,,totality of the ;elevant facts;'-ap. merly required.fo slnJv both discriminatory

proach to rhe qu"rt on o:i ;i;;;;"#v ir;i and a direct interference with the

intent. tlgii t" regr#I '91'oT' 
Id' at 61-&5' 100

tzl As we have indicated above' the Dis- 
'S"'Ci' 

"t rim-rnsa' Amended Section 2'

trict c,ourt relied heavily on the pl'gity however' now provides as follows:

opinion on Boldenand its rejection of Ziy' (a) No voti'ng qualification or pr^erequi-

mer factors in granting the appellee's Mo- tit" t" voting or standard' practice' or

tion for Summary Judgment' It is also ptooa"u shatt Ue'lmposed or applied by

spparent that in "pd;; 6; tlotion' the 'X":ru0*l::,"t11 
'P;"T:lt"','"i

lrrt,,:&:,:;tllT#l;fi,:l,l#il*l; ui.rig"*"nt or the right or anv citizen or

direct evidence of discriminat'ory intent' it'" rinlt"a States to vote on account of

At the time of the Distici court's decision' ;;";t color' or in contravention of the

the plurality's decision in Bolden was the g'"'"nt""t' 
'set' 'forth 

in section 1973

controlling authority i; ;fu area' The trial ilrizl orJh]1 title''as provided in subsec'

court's reliance upon it was entirely proper' il;6) of this section' (emphasis added)'

No court is charged with an obligation to 0) A violation'of subsection (a) of this

anticipate a subs"quenf retreat frim exist- ,".tio, is established if, based on the to-

ingdecisions. ThisC;;;,;";"*r,has.had tality of circumstances' it is shown that

thebenefitoftheSupremeCourt,sdecisionthepoliticalprocessesleadingtonomtna-
in Rogers v. Ladge, supra' Because-we iion'ot election in the State or political

believe that the majority's decision in Rog- subdivision ar"e not equally open to partic-

ers represents u .ignifi;nt departure from ipution by members of a class of citizens

the plurality,. opinion-i, Bolien as to the [-t".tion by subsection (a) of this section

appropriate inquiry in a vote dilution case' in tt'"t its members have less opportunity

we conclude that this case should be re- than other members of the electorate to

turned to the Distri", C'""t for considera- p""ti"lpate in the political process and to

tion in right or nog"n;';;4r!{:-,: :'.tff:"*:l'';:'."1*"}"}ffi*il;
l"ilLil;"lT"JfJ'.Xri,JJ,T,1n il."X,illXl "i".* 

r,"," been erectert t<, orrice in the

tions in the Complaint if proven' the evi- Soi ot political subdivision is one cir-

dence now present l' ii'" record' or the t"rntt"nt" which ma]' b€ considered'

decision the Districi Court shouti reach' Prodded' that nothing in this section es-

The question of wleti'e' an electoral sys- Luti't'"'' a right to have members of a

temisbeingmaintai*ato.adiscriminato-p'",""*aclas"selectedinnumbersequal
ry purpose "a"*und* a sensitive inquiry io- tf'ui' proportion in the population'

into such circumstantial direct evidence as (emphasis in original)'

may be available," "tJ 
it best left in the The Senate Report makes it clear that

first instance to the trier of fact' fuger,^ v' the amendment to Section 2 of the voting

l.adge, supra aL 3;;:;;'ll;; viliage .of iigr'" e" is intended "&o restore the legal

Ailingtnn Heights i.-ruJirrii;t"n y9u;tis sta".,aara that governed voting discrimina-

Development a'p','+m i's' zsz' 9? s'c'' li* *'"t prior to the Supreme court's

555, 50 L.Ed.zd 450 (19??). a".iri"' in'Boldenl', Sen.Rep. No. 97-41?

On June 29, 1982, Crcngress amended Sec- "i 
pp' z' 15'-U'ltCode Cong' & Admin'News

tion 2 of the Voting Rights Act of 1965' 198i' P 1?7' 1?9' The report goes on to

Prior to its amenrim&t, tht Sill'rcmt Co"i t'n."""ti" that state of the lau' as follows:

had held that Section 2 melt'l) trackeri the ln prt'-Br''/den ca:qs plaintiffs could lrre-

Fifteenth Amencment. Ci' ;, ,,t llot,ile ti. ,*ii l't showing that a challenged election



t072

,

?08 FEDE*,AL REPORTER 2d SERIOS
,

law or pncedurc, in the context of the

total cirrcumstances of the local electoral
pnooese, had the result of denying a racial

or language minority an equal chance to
participate in the electoral process. Un-
der this rcsults test, it was not necesssry

to demonstrate that the challenged elec-

tion law or prccedure was designed or

maintained for a discriminatory purpose'

U.S.Code Cong. & Admin.News 1982, p'

193.

Finally, the legislative history lists "typical
factors" which Crcngress contemplated a

court might properly consider in determin-
ing whether there is a violation of the

amended Act. These factors are:

(1) The extent of any history of official
discrimination in the state or political

suMivision that touched the right of the

members of the minority group to regis-

t€r, to vote, or otherwise to participate in
the democratic Process;

{2) The extent to which voting in the

elections of the state or political suMivi-
sion is racially polarized;

(3) The extent to which the state or polit-

ical suMivision has used unusually large

election districts, majority vote require-

ments, antlsingle shot provisions, or oth-

er voting practices or procedures that
may enhance the opportunity for discrim-
ination against the minority group;

(4) If there is a candidate slating process'

whether the members of the minority
group have been denied access to that
prccess.

(5) The extent to which members of the

minority group in the state or political

suMivision bear the effects of discrimina-

tion in such area as education, employ-

ment and health, which hinder their abili-
ty to participate effectively in the politi-

cal process;

(6) Whether political campaigns have

been characterized by overt or subtle ra-

cial appeals;
(?) The extent to which members of the

minority group have been elected to putr
lic office in the jurisdiction. U.S'Code

Cong. & Admin.News 1982, P. 206'

t3l Clearly, the amended Voting Rights

Ac.t shifts the focus of a vote dilution claim

under the statute to a discriminatory "ef-
fect" or "result" a.s opposed to motive or
intent. Although examination of the plain-
tiffs' Complaint in this case reveals that the
plaintiffs have never proceeded under the
Voting Rights Act of 19&5,42 U.S.C. S 1973

et seq., our prior decision to remand this
csse on constitutional grounds suggests that
plaintiffs should also be given the opportu-

nity to amend their Complaint to state a

claim under the amended Voting Rights

Act. Appellees' contention that the Voting
Rights Act of 1965 is inapplicable because

Tennessee has never been subject to the

provisions of Section 4 of the Act, 42 U.S.C.

S 1973b, is simply incorrect. Although the

provisions of Section 4 apply only to states

which had previously utilized discriminatory

tests and devices, Section 2 of the Act con-

tains a general prohibition of discriminatory

practices which operates nationwide.

Plaintiffs are therefore entitled to proceed

under Section 2 of the Act. Again, how'

ever, we express no view as to the merits of
any claim plaintiffs may assert under the

amended Voting Rights AcL

The judgment of the District Court is

hereby VACATED and REMANDED for

consideration in light of Rogers v. l,odge

and the Voting Rights Act of l%5, 42

U.S.C. S 1973 et seq.

Albert Prentice HEARN,
Petitioner'APPellee,

v.

Barry MINTZES, Respondent'Appellant'

No. 82-1ffi9.

United States Court of APPeals,

Sixth Circuit.

Argued March 10, 1983'

Decided June 9, 1983'

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