Memorandum from Pamela Karlan to Ron Ellis Re Little Rock Board of Directors

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MEMORANDUM

TO: Ron Ellis

FROM: Pam KarLan

RE: Little Rock Board of Directors

Irm sorry I wonrt be here Monday morning to meet with you

and Les Hollingsworth. You can try reaching me at the D.C.

office if you want to talk over the phone. Anyway, here are my

initial impressions, which you can share with him.

1. With regard to a head-on attack on Leadership

Eoundtable v. Citv of Little Rock, 499 F. Supp. 579 (E.D. Ark.

1980), aff 'd, 661 F.2d 7Ol (8th Cir. 1981) (per curiam), I

wouldn't recommend it. Judge Eisel.e's opinion, which was adopted

by the Eighth Circuit panel does not rest on a finding regarding

the absence of discriminatory intent in the adoption or

maintenance of the at-large system; rather, it rests on a finding

of no disparate impact on the ability of blacks to elect the

candidates of their choice. The opinion seems to suggest that

black representation on the Board of Directors is roughly

proportional. to their presence in the voting age population.

9.IhiIe proportional representation doesnr t neces;sarily preclude a

S 2 suit, Ginqfes comes pretty close to holding just that,

especially when black representation is of fairly long standing.

Judge Eisefets opinion can be imported virtually wholesa.Le into a

S Z context and would make for fairly tough uphiIl sledding on



Potential S 2 Case
Little Rock, Arkansas
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ou.r part.

2. V^Iith respect to the rtew system, I see these as the

rei.evant features, for purposes of a S Z analysis:

a. T s f or the 4 by-ward seats. 9{e

need to find out from Les whether these are being drawn in a way

that minimizes the number of majority-black districts.

Certainly, we can chaflenge a districting scheme that results irt

either cracking or packing of black areas.

b. The diminution of the number of at-large seats. f see

a potential new twist on an o1d theory. The more seats there are

up for election in a given election, the lower the proportion

needed to capture orle of those seats (assuming, of course, rro

numbered posts, rlo anti-singie shot reguirement, and no majority

vote requirement). In other words, if there are ? seats up,

maybe a group with 72% of the VAP has a shot at a seat, but

clearly if there are only 3 seats up, then it will not be able to

elect its candidate. in one recent S Z case--McNeif v. Citv of

Sprinqfield--blacks were roughly 9S of the VAP and the original

city council had 5 members. Thus, if a S-member council. were

immutable, then it would be virtually impossible for blacks to

eiect a member regardless of districting (each district would

ccrntain 20% of the total VAP, so even if every black lived in the

same district they woul.d be outnumbered). The court found a

violation, however, because Springfield could use a governmental

structure consisting of 1O al.derman anci single-member districting



I

Potential S 2 Case
LittLe Rock, Arkansas
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for a 1O-member council would allow blacks to eLect the

representative of their choice. McNeil thus suggests that

constricting the number of positions can violate S 2.

9{hat we would argiue, in essence, is that having 3 rather

than 7 at-l.arge positions diminishes bl.ack political power in

Little Rock and that the potential to elect one, ot perhaps even

two, ward members does not cu.re this violation. Werd need to

figure out the demographics and likelihood of electing various

numbers, but this might be a promising avenue

c. The ma.ioritv vote requirement. The Supreme Court and

Congress in S 2ts legislative history both recognize the

discriminatory character of majority-vote requirements.

Especially given the fact that some of the black members of the

Littfe Rock Board were elected in three-way rac€is, w€ should be

able to show that this feature violates S Z.

3. I may be missing some features since neither the bills

nor the clippings were aff that clear as to whatrs going on. Let

me know if therets more.