Hall v. Holder Brief of Appellants

    r svt'esnĉ  feosns

To: Voting Rights Staff 
Library Staff

Re: Brief on Proving Racially 
Voting By Non-statistical

Polarized
Means

FYI .
Library, this can be the first 

submission for our brief bank.



4

tyUL 1 2 1095
NO. 91-8306

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

REV. E.K. HALL, SR., DAVID WALKER, U.S. DONALDSON, RICHARD 
HARRIS, WILLIE ATES, REV. WILSON C. ROBERSON, and NAACP Chapter 
of Cochran/Bleckley County

Plaintiffs-Appellants,
vs.

JACKIE HOLDER, individually and in his official capacity as 
County Commissioner for Bleckley County, Georgia and ROBERT 
JOHNSON, individually and in his official capacity as 
Superintendent of Elections for Bleckley County, Georgia,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF GEORGIA 

MACON DIVISION

BRIEF OF APPELLANTS

Christopher Coates 
Georgia Bar No. 170980 
111 West Washington Street 
Milledgeville, Georgia 31061 
(912) 453-9512

Mr. Laughlin McDonald 
Mr. Neil Bradley 
Ms. Kathy Wilde 
Ms. Mary Wycoff
American Civil Liberties Union 
44 Forsyth Street, N.W. 
Atlanta, Georgia 30303 
(404) 523-2721
COUNSEL FOR APPELLANTS



CERTIFICATE OF INTERESTED PERSONS

The following list of interested persons is set forth as 
signated in 11th Cir. R. 28-2(b):

1. Reverend E.K. Hall, Sr.
2. David Walker

3. U.S. Donaldson

4. Richard Harris
5. Willie Ates

6. Reverend Wilson C. Roberson

7. NAACP Chapter of Cochran/Bleckley County, Georgia
8. Christopher Coates

9. Laughlin McDonald
10. Neil Bradley

11. Kathleen Wilde
12. Mary Wycoff

13. American Civil Liberties Union Foundation
14. Jackie Holder
15. Robert Johnson

16. Bleckley County, Georgia
17. R. Napier Murphy

18. John C. Daniel, III
19. W. Lonnie Barlow

- -__



. >;vm/. WlVt.

20. The Law Firm of Martin, Snow, Grant & Napier
21. Hon. Wilbur D. Owens

C^L. si '• 1t ]jl_y? .
CHRISTOPHER COATES 
ATTORNEY FOR PLAINTIFFS -APPELLANTS



)

STATEMENT REGARDING ORAL ARGUMENT 

This case presents important issues concerning the application 
of Section 2 of the Voting Rights Act, 42 U.S.C. 1973, the 

method of proving polarized voting, political cohesiveness, and the 
denial of equal access to the political process. For these 
reasons, counsel believe oral argument would be of assistance to 
the court.

i n



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS....................... i
STATEMENT REGARDING ORAL ARGUMENT....................  iii

TABLE OF CONTENTS.......................................  iv
TABLE OF CITATIONS AND AUTHORITIES....................  vi
STATEMENT OF JURISDICTION...............................  x
STATEMENT OF THE ISSUES.................................  1
STATEMENT OF THE CASE...................................  2

Course of Proceedings and Disposition in the
Court Below...........................................  2

A. Racially Polarized Voting.................  4

B. Discrimination Against Blacks in Bleckley
County..................................... 13

C. Discrimination in the Political Process.. 18
D. The Depressed Socio-Economic Status of

Blacks...............................   21
E. The Difficulties in Campaigning.......... 22
F. Maintenance of the Sole Commissioner System

and the Majority Vote Requirement........ 24

G. Geographical Compactness.................  26

H. The Decision of the District Court......  26

B. Statement of the Facts.......................... 3

C. Standard of Review.............................  29

iv



*

SUMMARY OF THE ARGUMENT ...............................  /y
ARGUMENT AND CITATIONS OF AUTHORITY...................  31

I. The District Court Erred in Failing to 
Consider, or Give the Required Weight to, 
Relevant Evidence of Polarized Voting.... 31

- II. The Court Erred in Holding that Blacks Were 
not Politically Cohesive and in Failing to
Consider the Relevant Evidence........... 40

III. The Court Erred in Refusing to Consider the
Discriminatory Purpose and Effect of the 
Majority Vote Requirement................  43

IV. The Court Erred by Refusing to Consider
Circumstantial Evidence and Holding the 
Elections Were not Discriminatory........ 47

CONCLUSION............
CERTIFICATE OF SERVICE

v



TABLE OF AUTHORITIES
Cases : Page No.
Bailey Vining, 514 F.Supp. 452 (M.D.Ga. 1981)...... 38
Brewer Ham, 876 F.2d 448 (5th Cir. 1989)...........  42

Brooks Miller , Civ. No. 1:90-CV-1001-RCF(N.D .Ga.) ..
.................................................. 3, 30, 47
Carrollton Branch NAACP Stallings. 829 F.2d 1547 "(11th 
cir- 1987)............................ 4, 9, 12, 31, 34, 44
Ci t izens for a Better Gretna v. City of Gretna, 636 
F.Supp llirCE.D.La. 1986).7.___ 7 7 ...... Ti .7777777 39
City of Rome, Georgia v^ United States. 446 U.S. 156 
( 1 980)................................................... 45
Clar k v^ Telfair County, Georgia Commission. Civ. No. 
287-25 XS.D.Ga. Oct. 26, 1988) . .7. . . .T7....... ........  4

Collins v,_ City of Norfolk. Va. , 816 F.2d 932 (4th Cir. 
1987> ............................. .................  32, 38
C o n c e r n e d  Citizens v . Hardee County Board of 
Commissioners, 906 F.2d 524 (11th Cir. 1990).. 29, 41, 42
Cross v^ Baxter, 604 F.2d 875 (5th Cir. 1979)....  37, 40
Dickinson v^ Indiana State Election Board. 1991 WL 82414 
(7th Cir. May 21, 1991) . ............. .................. 44
Dillard v^ B_aldwin County Board of Education, 786 F.Su d d . 
1459 (M.D.Ala. 1988Ju" ......... 77.77.................  45
Dillard v^ Crenshaw County, 640 F.Supp. 1347 (M.D.Ala. 
1986)77;............................................  30, 44

■ Dillard v_. Crenshaw County, Alabama. 831 F.2d 246 nith 
Cir. 19 8 7 7.................. 7777777.................. 45
Bast Jefferson Coalition v. Jefferson Parish, 691 F.Su d d .
571 (e . d . La. 19887777777.77. 7 T 3 -------------

vi



j- iM iJ  Ju.' i tl x*'SuSCieLi w

Edge v. Sumter County School District, 775 F .2d 1509 
Tilth Cir. 1985)........................................ 46
Gi ngles v . Edmi s ten, 590 F.Supp. 345 (E.D.N.C. 198M

Hendrix v . McKinney, 460 F.Supp. 626 (M.D.Ala. 1978).. 39
Howard v. Commissioner o_f Wheeler County, Georgia, Civ. 
No. 390-057 (S.D.Ga.)...................................  4
Jackson v. Edgefield County, South Carolina School 
District, 650 F. Supp. 117"5 ( D . S . C . 1986)....  10, 34, 37
Jeffers v . Cl inton, 730 F.Supp. 196 (E.D.Ark 1989).... 39

King v . Chapman, 62 F.Supp. 639 (M.D.Ga. 1945).......  18
Lodge v . Buxton, 639 F.2d 1358 (5th Cir. 1981) ......  36
Lodge v. Buxton, Civ. No. 176-55 (S.D.Ga. Oct. 26, 1978) 
77777. 77. 777777......................................... 36
LULAC v. Midland Independent School District, 812 F.2d
1494 (5th Cir. 1987) . . ....... .....................  41, 42

McDaniels v . Mehfoud, 702 F.Supp. 588 (E.D.Va. 1988).. 34
McMillan v. Escambi a County, 748 F.2d 1037 (1 1 th Cir.
1984)....  38
Monroe v. City of Woodville, Mississippi, 881 F.2d 1327
(5th Cir. T W 9 ) .........................................  42
NAACP of Cochran/Bleckley County v_;_ Bleckley County, Civ. 
No. 88-32-MAC (M.D.Ga.)................................  21
Neal v . Colburn, 689 F.Supp. 1426 (E.D.Va. 1988).....  22

Nealy v . Webster County , Georgia, Civ. No. 88-203 
(M . D.Ga . March 16 , 1990)................................  4
Nevett v . Sides, 571 F.2d 209 (5th Cir. 1978).........  33

vi 1



Rogers v . Lodge, 458 U.S. 613 (1982)...................
....................................  1 1, 36, 44, 46, 48, 49

Sierra v . El Paso Independent School District:, 591 
F.Supp. 802 IW.D. Tex. 1984)..... .....................  34
Solomon v. Liberty County, Florida, 899 F.2d 1012 (11th 
Ci r . 1990T(en banc)....................................  31
Sutton v . Anderson, Civ. No. 89-58-1 (M.D.Ga.)......... 4
Thornburg v. Gingles, 478 U.S. 30 ( 1986)................
....... 9, 26, 27, 28, 29, 31, 32, 33, 34, 35, 37, 40, 41
United States v. Marengo County Commission, 731 F.2d 
1546 ( 1 1th Cir. 1984) ...................................  33

Village o f Arli n g t o n  Heights v . Metro Housing 
Development, 429 U.S. 252 (1977).............. 47, 48, 49
West Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 75*1
F . 2d 7TT"(5th Cir. 1985) ................................ 47

Wh i te v . Regester, 412 U.S. 755 (1973)................  46
Wilkes County, Ga . v. United States, 450 F.Supp. 1171 
(D.D.C. 1978) . ..........................................  38
Williams v. City of Dallas, 734 F.Supp. 1317 (N.D.Tex 
1990)... ................................................  42

Windy Boy v. County of Big Horn, 647 F.Supp. 1002
l O ^ t r i g s s y . . t t ..t t t ..t t t : ........... :: 34, 40
Z i mm e r v . McKei then, 485 F. 2d 1297 (5th Cir. 1973)(en 
banc) . ............................................ 3, 34, 46

v m



Statutes and Constitutional Provisions Page No.

42 U.S.C. Section 1973...... -...............  3, 8, 31, 44
14th Amendment to the United States Constitution....... 3

15th Amendment to the United States Constitution....... 3
Rule 19, F.R.Civ.P...................................... 44

Rule 52 (a) , F.R.Civ.P.................................  40

Other Authorities Page No.
S. Rep. No. 147, 97th Cong., 2d Sess. 28-9 (1982)......
............................................  28, 31, 46, 48
H.R. Rep. No. 227, 97th Cong., 1st Sess. 30 (1981).....
.........................................................  48
Cole, Engstrom, & Taebel, "Cumulative Voting in a 
Municipal Election: A Note on Voter Reactions and
Electoral Consequences," 43 Western Pol. Q. 191-99 (1990) 
.........................................................  11
Engstrom and Barrilleaux, " Native Americans and 
Cumulative Voting: The Si sseton-Wahpeton Sioux," 72
Social Sci. 0. 387-93 (1991)...........................  1 1

Engstrom and McDonald, "Definitions, Measurements and 
Statistics: Weeding Wildgen's Thicket," 20 Urban Lawyer 
175 (1988) .............................................  10

McDonald, Binford & Johnson, "The Impact of the Voting 
Rights Act in Georgia" (forthcoming) ............ 46



* 1 i-f- ■iviiu £*\\LL

STATEMENT OF JURISDICTION

This Court's jurisdiction is based upon 28 U.S.C. 1291. This 
appeal is from the final decision of the district court dismissing 
a complaint alleging violations of Section 2 of the Voting Rights 

Act and the Constitution.

x



iiiniitiiiiiiHiii

STATEMENT OF THE ISSUES
1. Whether the district court erred as a matter of law by 

refusing to consider evidence other than that drawn from prior 

elections, such as socio-economic or other. barriers to voting and 
political participation, the history of segregation, racial 
campaign appeals, and the testimony of experienced local politi­
cians, in holding that plaintiffs' failed to prove that voting in 
Bleckley County, Georgia was racially polarized?

2. Whether the district court was clearly erroneous in 
finding that plaintiffs failed to prove the existence of racially 
polarized voting?

3. Whether the district court erred as a matter of law in 
holding that plaintiffs failed to prove that the black community 
was politically cohesive because election returns did not show "a 
pattern of bloc voting" or "a pattern of unified support" for black 
candidates, and by failing to consider other evidence of cohesive­
ness, such as a distinctive socio-economic status and a history of 
segregation and discriminatory treatment of the black community?

4. Whether the district court was clearly erroneous in 

holding that plaintiffs failed to prove that the black community 

was politically cohesive?

5. Whether the district court erred as a matter of law in 

holding that the issue of whether the majority vote requirement for 

the Bleckley County Commissioner had a discriminatory purpose or 
effect was not properly before the court because (a) the majority 

vote statute was a part of state law which the county lacked power

1



to change, and (b) the claim that the majority vote statute 

violated the Voting Rights Act was the subject of pending litiga­
tion in another district?

6. Whether the district court erred as a matter of law in 
holding that plaintiffs failed to produce "any evidence" that the 

at-large elected, sole commissioner form of government was adopted 

or was being maintained with a racially discriminatory purpose 

because they failed to present specific, smoking gun evidence, and 
in refusing to consider circumstantial evidence of racial purpose?

7. Whether the district court was clearly erroneous in 
finding that the at-large elected, sole commissioner form of 
government was not adopted or being maintained with a racially 
discriminatory purpose?

8. Whether the district court erred in concluding that black 

voters were not denied the equal opportunity to participate in the 
political process and elect candidates of their choice by the at- 
large elected, sole commissioner form of government in violation of 
Section 2 of the Voting Rights Act?

STATEMENT OF THE CASE
Course of Proceedings and Disposition in the Court Below

This is a voting rights case filed on July 17, 1985 by black 
residents and voters of Bleckley County, Georgia and the NAACP 
Chapter of Cochran/Bleckley County. The plaintiffs-appellants 
contended that the at-large elected, sole commissioner form of 
county government had a racially discriminatory purpose and effect 

and resulted in the dilution of their voting strength in violation

2



of Section 2 of the Voting Rights Act, 42 U.S.C. 1973, and the 
Fourteenth and Fifteenth Amendments.^ The defendants-appellees 
are the county commissioner and the superintendent of elections of 

Bleckley County. A trial was held on December 4-7, 1989, and the 

district court held for the defendants on March 7, 1991.
The district court held that plaintiffs failed to prove that 

voting was racially polarized, that minority voters were political­

ly cohesive, or that their voting strength was diluted by the at- 
large elected, sole commissioner system in violation of Section 2. 
The court refused to consider whether a majority vote requirement 
for election of the commissioner had a discriminatory purpose or 

effect because the requirement was part of state law which the 

court held the county was powerless to change, and because 

litigation concerning whether or not the law violated the Voting 

Rights Act throughout the state was pending in another case in 
federal district court, Brooks v. Miller, Civ. No. 1:90-CV-1001-RCF 
(N.D.Ga.). The court dismissed plaintiffs' claim that the 
challenged method of elections had been adopted or was being 
maintained with a discriminatory purpose on the ground that there 

was no specific evidence of racial intent.
Plaintiffs filed their notice of appeal on April 3, 1991. 

Statement of Facts
Bleckley County is in rural Georgia and has 219 square miles.

^The plaintiffs also challenged the district voting plan for 
the Bleckley County Board of Education and the method of electing 
the Cochran City Council. These claims were settled by consent of 
the parties on November 22, 1985 and July 17, 1986, and are not
involved in this appeal.

3



It was established in 1912 and has a sole commissioner form of 

government. The sole commissioner, pursuant to general state law, 
exercises all the powers and duties of the governing authority of 
the county.* 2 A declining number, fewer than 20, of the 159 

counties in the state still retain the sole commissioner system.2
The commissioner is elected from the county at-large, and a 

majority vote requirement is in effect. According to the 1980 

Census, Bleckley County has a population of 10,767 people, of whom 
2,367 (22%) are black.4 No black has ever been elected to, or 

held, the office of county commissioner.

A. Racially Polarized Voting
Plaintiffs' evidence of polarized voting consisted of the 

testimony of experienced local politicians; the consistent defeat 
of minority candidates; the history of racial discrimination, 

particularly discrimination in the conduct of elections, and its 

continuing effects; few minority elected officials; the depressed

2The commissioner's duties include construction and mainte­
nance of roads and bridges, setting the tax millage rate, serving 
on boards and author ities, Tiiring and firing county employees, and 
managing the every day operations of the county. R5-495-97, 548.

2Sole commissioner systems were abolished in Carroll, Telfair 
and Webster Counties as a result of Section 2 litigation. 
Carrollton Branch NAACP v. Stallings, 829 F.2d 1547 (11th Cir. 
1987); Clark v. Telfair County, Georgia Commission, Civ. No. 287-25 
(S.D.Ga. Oct. 26, 1988); Nealy v. Webster County, Georgia, Civ. No. 
88-203 (M.D.Ga. March 16, 1990). Similar challenges are pending in 
Pulaski and Wheeler. Sutton v. Anderson, Civ. No. 89-58-1 
(M.D.Ga.); Howard v. Commissioner of Wheeler County, Georgia, Civ. 
No. 390-057 (S.D.Ga.).

^The 1990 Census shows a slight decline in the total popula­
tion (to 10,430), and a slight increase in the percentage of black 
population (to 2332) .

4



> - - o’ .i££&iijbn£-̂ £i*

level of black candidacies for at-large elected, county wide 
offices; the increased level, and success, of black candidates in 

non or less dilutive election systems utilizing majority black 
districts (board of education and city council), and in elections 
with no majority vote requirement (city council); an exit poll; and 

statistical analysis and testimony by expert witnesses.
(1) The Testimony of Experienced Local Politicians

Experienced local black politicians were unanimous in their 

testimony that voting in Bleckley County was racially polarized. 
According to plaintiff Roberson, who has lived in Bleckley County 

since 1955 and who was elected to the Cochran City Council from a 
majority black (71X) district in 1986, "having had the experience 

that I've had, I know that the white voters will not vote for a 
black candidate." R3-85. In his opinion, no more than 10% of 

whites, "if that many," would cross over and vote for a black in a 
contested election for the sole commissioner position. R3-84.

Mattie McDonald, a retired black school teacher and an 
unsuccessful candidate for an at-large position on the Cochran City 
Council in 1982, testified that no black, however well qualified, 
could expect to win an election for commissioner because of severe 
white bloc voting. R4-282. The number of whites who would be 
willing to vote for a black "would be very low." R4-283.

Willie Basby, a local black business man and a member of the 
Cochran City Council, testified that he did not think he could win 
a county wide election for commissioner. R4-309. A black 

candidate would "have to make sure he could get all the black

5



voters and a percentage of the whites and they're not going to -- 
that's not going to work. I just don't believe that would work." 
R4-314. In his opinion, "[t]here would be a very small percentage 
[of white cross over votes], I would say maybe -- probably 101." 
R4-315. Plaintiff Walker, the president of the NAACP and a three 
time unsuccessful candidate for the Cochran City Council, testified 

that whites would not support black candidates. R4-347-48.
(2) The Depressed Level of Minority Candidacies

Because of their belief that voting is racially polarized and 
that they could not win enough white votes to obtain a majority, 

few blacks have run for county wide office. As plaintiff Walker 

explained, "it'd be a waste of money." R4-332. Plaintiff 

Roberson agreed that "if you know the trend and you know that 

you're going to lose, there's no sense in trying." R3-104. A 
black candidate "hasn't got a chance, if he run[s] overall." R3- 
110 .

The district court found that blacks had been deterred and 
hindered from running for office because of their depressed socio­
economic status. According to the court:

The depressed socio-economic status of black 
residents, including particularly the lack of 
public or private transportation, telephones 
and self-employment, hinders the ability of 
and deters black residents of Bleckley County 
from running for public office, voting and 
otherwise participating in the political 
process. R2-59-5-6

Plaintiffs' expert Dr. Richard Engstrom, a political scientist 
and an authority in the field of minority political participation, 

testified that the at-large commissioner system, in the context of

6



a majority vote rule, the history of discrimination in the county, 
the serious socio-economic disparities in the black community, and 
continuing segregation, has a "chilling effect on black political 
participation and "filter[s] out black candidates. R4-425-26.

No black has ever run for sheriff, clerk of court, tax 

commissioner, justice of the peace, county commissioner, or for the 

state legislature. R4-274-75 The only black to run for an at- 

large, county wide position was plaintiff Hall. He ran for judge 
of probate court in 1984 and was defeated, getting only 15% of the 
total vote. R6-688 Blacks were 13.5% of the actual voters in the 

election. R6-706.
(3) Success of Blacks in Non or Less Dilutive Systems

A black was elected to the county board of education in 1986, 
but only after it adopted single member districts pursuant to a 

referendum in 1982. R4-446-47. At the first election held under 
the new plan, plaintiff Hall was elected from a majority (66%) 
black district. Hall is the only black to hold any of the county's 

fourteen elective offices. R5-521.
Blacks have been successful in elections for the Cochran City 

Council as a result of its plurality vote rule, and because of the 
adoption of district voting in 1986 as a result of this law suit.5 

According to the 1980 Census, Cochran has a population of 5,121 
people, of whom 1,704 (33%) are black. Cochran contains about half 

(48%) of the total population of Bleckley County, and has a greater

^Under the new plan the city is divided into three districts, 
with two council members elected from each district. One of the 
districts is 71% black, and the other two are majority white.

7



percent of blacks than the county.6
Prior to the adoption of district elections, eight blacks had 

run for the city council. Four had run for the council more than 
once, and one had also run for mayor. All the blacks were defeated 
except Willie Basby who was elected in 1973 by a plurality of the 
votes in a contest against two whites.7

After the adoption of district voting, plaintiff Roberson ran 
for city council in 1986 against a white in the majority black 
(71%) district and won, receiving 84% of the vote. R3-53, 87. He 
was re-elected in 1988 without opposition. R3-54.

Basby first ran for city council in 1972, and was defeated. 
Prior to that time, running for office "was something you [blacks] 

just didn't do." R4-319. Elections for the mayor and city council 
had always been conducted on a plurality vote basis. After Basby 

announced his candidacy, the city amended its charter to require a 

majority vote for election. The legislature enacted a majority 

vote requirement for the city later that year, but it was objected 

to by the Attorney General in 1973 under Section 5 of the Voting 
Rights Act, 42 U.S.C. 1973c.

Basby ran again in the 1973 election held after the Attorney 
General's Section 5 objection. He had two white opponents, neither

^According to the 1990 Census, the population of Cochran is 
4,390, of whom 1,651 (38%) are black.

^Plaintiff Walker ran for the council in 1979, 1980, and 1982. 
R4-328. Plaintiffs Harris and Howard ran for the council in 1976. 
Hosea Lee Blackshear, a black, ran in 1977, and plaintiff Hall ran 
the next year. Henry Pitts, a black, ran for the council in 1978 
and for mayor in 1980. Mattie McDonald ran for the council in 
1982,.and plaintiff Harris ran for the council again in 1984.

8



of whom was an incumbent, and this time was elected with a 

plurality (39%) of the votes. R3-148-49, R4-303-06, R5-642-45. At 
the next election in 1975, Basby was opposed by a lone white and 

was defeated. Basby was reelected in 1977 and has held office ever 
since. He was opposed in 1979, but subsequently has run as the 
incumbent without opposition. Since 1987 he has represented the 
majority black district. No black has ever been elected mayor or 
from a majority white district to the city council.

Basby runs a shoe repair shop in Cochran, a business he bought 
from a white resident in the late 1960's. Approximately 901 of his 

customers are white. He is the only black business person in the 

county with such a large white clientele, a fact which gives him 

unique personal contact with the white community and provides a 
political advantages which other blacks in the county do not have.

(4) Statistical Analysis

The facts of this case limit the usefulness of extreme case 
(or homogeneous precinct) analysis and regression analysis, 

statistical methods for proving racial bloc voting approved by the 
Supreme Court in Thornburg v. Gingles. 478 U.S. 30, 52-3 (1986), 
and used by this Court in numerous cases. See, e . g ■ Carrollton 
Branch of NAACP v. Stallings. 829 F.2d 1547 (11th Cir. 1987). This 
is so because of the small number of black candidates for county 
offices, and because in August, 1984 (the year in which plaintiff 

Hall ran for judge of probate court) the county changed from using 

eight precincts or polling places to using a single polling place

9



for the entire county.8 However, regression analysis can be done 

for the 1984 Democratic presidential preference primary in which 
Rev. Jesse Jackson was a candidate and in which voters were 
presented with a racial choice.

Dr. Engstrom estimated on the basis of regression and 
homogeneous precinct analysis of the 1984 primary that whites in 

Bleckley County voted exclusively for white candidates at the rate 

of 99.1%. Blacks voted for Jackson-at the rate of 60.8%. These 

estimates were almost identical to the CBS News/New York Times exit 
poll for Georgia which estimated that Jackson got 61% of black 

votes and 1% of white votes statewide. R2-59-33 . In the five 

homogeneous white precincts (those that were 90% or more white), 
Jackson could have received at most only 3.4% of the white vote. 
According to Dr. Engstrom, racial polarization occurred in the 

election, and the likelihood of such results occurring by chance 
was 1 in 10,000. R4-422, 430.

(5) The Exit Poll

Plaintiffs conducted an exit poll in connection with the 1988

^Homogeneous precinct analysis estimates voting behavior by 
examining voting patterns in precincts predominantly of one race. 
Whe^e there is only one precinct, it is impossible to do homoge­
neous precinct analysis. Regression analysis compares the race of 
voters in each precinct with the votes candidates of different 
races received in those precincts. Regression analysis allows one 
to estimate the percentages of white and black voters who voted for 
candidates of their own race. Since regression analysis requires 
multiple data points, or precinct voting totals, the existence of 
only one precinct also precludes regression analysis. R4-414-21, 
430. For a more detailed discussion of homogeneous precinct and 
regression analysis, see Jackson v. Edgefield County, South 
Carolina School District, 650 F.Supp. 1176, 1194-96 (D.S.C. 1986), 
and Engstrom & McDonald, "Definitions, Measurements, and Statis­
tics: Weeding Wildgen's Thicket," 20 Urban Lawyer 175 (1988).

10



Democratic preference primary in which Rev. Jackson was again a 
candidate to determine the existence of racially polarized voting. 
Dr. Alex Willingham, a political scientist at Williams College and 

an expert witness in prior voting cases, including Rogers v. Lodge, 

458 U.S. 613 (1982), designed the exit poll, which was conducted by 

an associate. Voters were asked to mark a sample primary ballot 
after they left the polls indicating how they had voted, and to 
answer a brief questionnaire about their race, sex, age and whether 
they believed voting in the county was racially polarized. The 

pollsters attempted to distribute the sample ballots to as many 

voters as they could. Participation in the poll was voluntary, 

however, and 993 voters (39% of the total of all voters) respond­
ed .9 The poll showed that Jackson got more than 90% of the black 
vote (a substantially higher percent than he received in the 1984 
primary), but a very small percentage - less than 2% - of the white 
vote. Both Dr. Willingham and Dr. Engstrom were of the opinion 

that the exit poll revealed a substantial level of racially 

polarized voting in Bleckley County. R4-423.

^Random sampling of voters is not required in exit polls; 
indeed, it is problematic, because in exit polls one cannot 
randomly sample replacements for respondent!; who refuse to 
participate. In a small jurisdiction, such as Bleckley County, it 
is standard practice to attempt to poll all voters in the election. 
As a practical matter it is impossible to get a 100% response rate, 
but the level of response in. this case (39%) was excellent and was 
actually higher than that in other polls published in social 
science journals and relied upon by experts in the field. See, 
e.g., Cole, Engstrom & Taebel, "Cumulative Voting in a Municipal 
Election: A Note on Voter Reactions and Electoral Consequences," 43 
Western Pol. Q. 191-99 (1990)(response rate of 33.2%); Engstrom & 
Barrilleaux, "Native Americans and Cumulative Voting: The Sisseton- 
Wahpeton Sioux," 72 Social Sci. Q. 387-93 (1991)(32.3% response 
rate).

11



(6) Other Elections
Plaintiffs also put in evidence of other elections in which 

residents of the county voted, and in which voters were either 
given a racial choice among candidates or in which race was a 
significant issue, to examine the existence or not of racial bloc 

voting. One of those elections was the 1974 Democratic primary for 
lieutenant governor in which J. B. Stoner, a self styled white 

supremacist, was a candidate. Stoner finished second in a field of 
ten candidates getting 20% of the total vote in Bleckley County. 

He missed being the top vote getter by only 35 votes. Statewide, 
Stoner got only 9% of the votes. The defendants' expert agreed 

that Stoner's showing was evidence of racial polarization in 

Bleckley County. R5-649.
In the same 1974 primary election, Lester Maddox, a candidate 

for governor and an avowed racist, led a field of ten candidates 

getting 44% of the total vote in Bleckley County. In the 1966 
general election for governor Maddox out polled Republican Howard 

"Bo" Callaway in Bleckley County getting 69% of the vote.
In the 1968 presidential election, George C. Wallace, an 

independent candidate and a strong advocate of racial segregation, 
carried Bleckley County. The Cochran Journal wrote that the county 
"went almost solid for George Wallace as expected."^

l^The court discounted defendants' evidence of four statewide 
elections which involved minor black candidates who received little 
support from either black or white voters (C. B. King for governor 
in 1970, Hosea Williams for United States senator in_1972, Mildred 
Glover for lieutenant governor in 1982, and Otis Smith for public 
service commissioner in 1988) as "simply a nullity." R2-59-39 The 
court, in conformity with Carrollton Branch of NAACP v. Stallings,

12



Based upon his examination of the election data and other 

factors, Dr. Engstrom was of the opinion that voting in Bleckley 
County was racially polarized, and that a black preferred candidate 
would not have a reasonable chance of winning an election for the 
commission. R4-426-27. Dr. Peyton McCrary, a southern historian 
and another of plaintiffs' experts, agreed that the sole commis­
sioner form "closes off the possibility of black representation. 

R3-213.
Dr. Willingham concluded, based upon his examination of the 

evidence and interviews with black residents of the county, that 
blacks are still largely excluded from decisionmaking at the county 

level. R4-373. There is a high degree of racial polarization in 

the county, and in areas of life where federal intervention has not 

compelled desegregation, barriers to black participation remain. 

R4-378. He was of the opinion that the extent of racial polariza­

tion in Bleckley County makes it highly unlikely that a black 
candidate would ever be elected to the commission because s/he 

would be unlikely to receive a sufficient number of white votes to 

gain a majority. R4-381.
B. Discrimination against Blacks in Bleckley County 

(1) The Public Policy
Discrimination against blacks in Bleckley County in all areas

supra, 829 F.2d at 1558-59, similarly placed no reliance on 
defendants* evidence of the 1984 re-election of Justice ̂ Robert 
Benham, a black member of the state court of appeals, which the 
district court found was "a unique situation" involving an 
incumbent member of the judiciary. Judicial elections generate 
very little voter interest and incumbents, such as Benham, are 
routinely re-elected. R4-443.

13



■ I

«

1

of life has been gross and systematic. As the district court 
found, prior to the intervention of Congress and passage of the 
modern civil rights acts, "Bleckley County... enforced racial 
segregation in all aspects of local government -- courthouse [water 
fountains, bathrooms, seating], jails, public housing, governmental 

services [including recreational facilities] -- and deprived its 

black citizens of the opportunity to participate in local govern­

ment." R2-59-4. R3-60-1, 64.
The maintenance of segregation in all its forms was a major 

topic of debate into the mid to late 1960's, and " [ c ]andidates for 
public office during those years appealed for voter support by 
promising to oppose desegregation." R2-59-4-5. In 1960, Bleckley 

County representative Ben Jessup took out a political ad addressed 

"To the White Voters of Bleckley County,” promising to vote for the 
continuation of racial segregation and the county unit system. 

P.Exh. 20. Mr. Jessup represented Bleckley County in the legisla­
ture for over 25 years. Today he is a member of the Cochran City 
Council and is Doorkeeper of the Georgia House of Representatives.

James M. Dykes in his campaign for the Georgia Senate in 1960 
pledged to maintain segregated schools throughout the state. R3- 
138. In his political ads, he promised to maintain white suprema­

cy, the all white primary and the county unit system. P.Exh. 74.

Public accommodations, such as restaurants, movie theaters and 

motels, were racially segregated. R3-66-7. Even the bookmobile 

was Jim Crow. P.Exh. 56 Prior to passage of the Civil Rights Act

1A



of 1964, Cochran operated a swimming'pool for whites only. After 
passage of the Ac-t, the city closed the pool and covered it over 
with bricks. R3-64. The cemetery owned and maintained by the city 
is still operated on a racially segregated basis. R3-65.

Public housing was built on a racially segregated basis. 
Although it is no longer segregated by law, Happy Hill Homes, which 
was built in the 1950's as an all black project, has never had a 
white resident. R3-68.

The segregated public school facilities that were available to 
blacks during the 1950's and '60's were so grossly unequal that the 

state board of education took action to terminate state funds to 

schools in Bleckley County. R3-137. As reported in the Cochran 
Journal, "the Negro schools...have been condemned for several 
years." P.Exh. 244. The county school superintendent's response 

was that "as far as I know, they [blacks] are perfectly contented 
with what they have got." The superintendent reported in 1957 that 

40% of the black students in the county between the ages of 6 and 
16 were not attending school. P.Exh. 57.

Bleckley County sought to avoid desegregation through a series 

of stratagems, including building a new "equal" school for blacks 
in 1963, P.Exh. 245, 21, and operating schools on a freedom of 

choice basis in 1965. P.Exh. 258-59. According to the board of 
education, "enforced racial integration of school students...[was ] 

morally and socially wrong." P.Exh. 260. Schools were not 

desegregated until 1970, and only after HEW notified the county 

that its federal funds were being terminated. P.Exh. 274.



The superintendent of schools acknowledged in 1982 that de 

facto segregation continued to exist in the county schools. P .Exh. 
189. Although the public school system is 30% black, in 1989 there 
were only five blacks in teaching or administrative positions, one 
at the county high school, one at the middle school and three at 

the elementary school. R4-269, 299, R5-482-92.
Prior to consolidation in 1977, there were two school systems 

in Bleckley County, a county system operated by a board of 
education appointed by the grand jury, and a city system in Cochran 

operated by a board elected at-large. R4-273-74. Although 
consolidation, which retained the grand jury method of appointing 

members to the board, was a change in voting it was never submitted 

for preclearance under Section 5. R3-155. Both before and after

consolidation, no black was ever appointed to the board of 
education by the grand jury.^ R4-273-74. No black ever ran 

for, or served on, the board of education of the city schools. Id. 
No black served on the county board until single member districts 

were adopted in 1982. R4-275, 445-46.
(2) The Private Sector

Churches, civic clubs, private social groups and housing in 
Bleckley County are racially segregated. R2-59-6. R3-70, 76. In

llThe failure to appoint blacks is not surprising in view of 
the systematic exclusion of blacks from the grand jury. Although 
blacks according to the 1980 census were 19% of those 18 years of 
age or older and presumptively eligible for jury duty, for six 
randomly selected terms of court during 1960-1966, blacks comprised 
only 3.7% of those summoned as grand jurors. R3-28-9. For five 
randomly selected terms of court during 1973-1979, blacks comprised 
only 9.5% of grand jurors. R3-29.

16



the early 1980's Samuel Moore, a black employee of the Georgia 

Power Company, contracted to buy a home in an all white neighbor­
hood in Cochran. Whites living in the neighborhood asked plaintiff 
Roberson to convince Moore not to go through with the purchase. 

Moore eventually decided not to buy the house because of the 

opposition by whites to his living in their neighborhood. R3-69- 

70, R4-277.
News was reported in the Cochran Journal on a racially 

segregated basis. P.Exh. 43,44, 59, 116, 131, 252. The Bleckley 
County Sportsman Club, of which defendant Holder is a member, has 

never had a black member. R5-537. The Cochran Rotary Club is all 
white. R3-73. The Masons and Eastern Stars are racially segregat­

ed. R3-73. The Woodmen of the World chapter in Bleckley County is 

all white, as are the Jaycees and the Cochran Pilots Club, a 

professional women's organization. R3-75-6, R5-585, 622.
Racial attitudes, amounting at times to negrophobia, have 

permeated life in Bleckley County. Cross burnings and klan rallies 

took place in the county during the 1940's and 1950's. R5-572, R3- 

72-3, P.Exh. 120-21. One of the cross burnings was in plaintiff 

Roberson's yard in 1956, the year after he had tried to register to 

vote. R3-73.
The Cochran Journal attacked the 1954 Brown decision and said 

that Justice Black had accepted an award from a communist front 
organization. The £>aper criticized President Eisenhower in 1958 

for sending troops to Little Rock and "his policy of appeasement of 

minority groups." P.Exh. 83, 125. In 1960 the paper applauded

17



Senator Herman Talmadge for his opposition to civil rights 

legislation, especially voting rights legislation. P.Exh. 86 The 
paper frequently attacked the Civil Rights Act of 1964. P.Exh. 89- 
97. In 1963 the paper criticized the Georgia Board of Regents for 
allowing Georgia Tech to play home games against racially integrat­
ed teams. The regents were accused of "giving in” to integration, 

which the paper said was "unchristian." P.Exh. 76.
C . Discrimination in the Political Process
Discrimination against blacks in the political process has 

been particularly rigorous and draconian.
(1) Voter Registration

As the district court found, prior to passage of the Voting 

Rights Act of 1965, "black citizens were virtually prohibited from 

registering to vote in Bleckley County." R2-59-6. Disfranchise­

ment was accomplished by the use of discriminatory literacy tests, 

the all white primary, and intimidation and threats of violence.
R4- 251-53. When the white primary was invalidated in King— v_̂  

Chapman, 62 F.Supp. 639 (M.D.Ga. 1945), Representative Dykes
announced that forms had been prepared to use in challenging every 
black registered voter "to safeguard our Democratic White Primary.

The challenges were successful. P.Exh. 33.
In 1946, Lewis Carswell, a black World War II veteran, and 

several other blacks attempted to vote at the segregated Thompson 
Street school. There were no voting materials at the precinct, < 

however, and the sheriff came by and said, "y'all niggers go around 

to the back of the Courthouse. We’re going to let y'all vote

18



around there." R4-255. The blacks went to the courthouse but were 
confronted by a group of 20-30 armed whites, who used physical 
force to prohibit them from entering. All the blacks left and none 
cast any ballots. Carswell did not attempt to vote again until the 
Johnson/Goldwater presidential election in 1964 because he felt "it 

would've been impossible." R4-257.
Two years after the Carswell incident the Cochran Journal, in 

reporting on the 1948 election, noted that: "It is interesting to 

not (sic) that there were no Negro votes cast in the entire county. 

No Negroes appeared to vote and little if any interest was shown by 

them in the election." P.Exh. 5. In fact, one black, Ralph Allen, 
a retainer at a white hunting lodge frequented by local white 
politicians, was allowed to vote. Allen explained that he was 

different from other blacks, "because I try to make sure that my 
personality and everything be different from anybody else's." R5- 

570-71. Allen is employed by the county as a bailiff and testified 
that in all his years of living in Bleckley County he never saw 
anything that he thought was racial discrimination-; R5-576.

Plaintiff Roberson first tried to register to vote in Bleckley 
County in 1955 when he moved there to teach in the city schools. 
R3-51, 55. He went to the courthouse and after he entered, the 
Cochran chief of police took him outside and told him that "no 

niggers register in this courthouse." R3-55. Roberson complained 

about the incident to his school superintendent, but the superin­

tendent told him, "just don't push the issue." R3-57. Roberson, 

who didn't want to lose his job, did not try to register again

19



until 1964. R3-58. A black teacher who ignored similar advice 
from the superintendent and who registered in 1958 was not rehired 

as a teacher the following year. R3-59-60. As late as 1962, 
voting by blacks in Bleckley County was virtually non-existent. 

R4-267.
At the time the Voting Rights Act was passed in 1965, 3,346 

whites (741 of the voting age population) were registered, but only 

45 blacks (31 of the voting age population). Black voter registra­
tion did not increase significantly until 1984 when satellite 

registration was allowed in the black community away from the 

courthouse. R3-110, R4-279-80, 335-36. Some of those who 
registered at the sites in the black community said that they had 

been afraid to register before. R4-338.
(2) Registrars and Poll Workers

Despite passage of the Voting Rights Act, systematic discrimi­

nation against blacks in the conduct of elections continued into 
the late 1980's. No blacks were appointed as deputy registrar 
until 1984, and only after blacks complained to the Georgia 

secretary of state's office. R4-337. Prior to their complaints, 

blacks had asked the chief registrar to appoint blacks, but he said 
"he didn't know about it." R4-337. p. 7. No black served on the 

county board of registrars until 1985. R4-277-78.
From 1978 to 1986, the defendant superintendent of county 

elections appointed 224 poll managers for some 17 elections, and 
not a single one was black. R2-59-7. He also appointed 509 poll 

clerks, and only 30 (6%) were black. Although blacks had requested

20



to be allowed to work at the polls, they were told by the superin­
tendent of elections that "we're already filled up," R.4-329, or 
"we can't use you at this time." R4-331.12 An election system 
largely run by whites, particularly in view of the rich history of 
discrimination in Bleckley County, can serve to intimidate black 

voters. R3-152.
D . The Depressed Socio-Economic Status of Blacks

As the district court found, the 1980 Census and the testimony
of Drs. Willingham and Engstrom "show conclusively" that blacks in
Bleckley County continue to endure a depressed socio-economic
status, and that such status hinders their ability to participate

effectively in the political process:
(1) 50% of the whites in Bleckley County have a high
school education while less than 15% of the blacks have 
a high school education; (2) whites are more likely than 
blacks to own automobiles and have telephones; (3) the 
per capita income and median family income of whites is 
double that of blacks; (4) while one-third of the blacks 
live below the federally recognized poverty level, only 
9% of the whites do. This depressed socio-economic 
status hinders the ability of blacks to participate in 
the Bleckley County political process because...(1) 
better educated people are less threatened by having to 
make choices and are more likely to understand the 
importance of civic involvement; and (2) less educated 
people are more difficult to mobilize to vote even if 
they are registered to do so. R2-59-5
The court found that these "barriers to active participation 

in the political process are today compounded by the fact that 
Bleckley County now has only one voting precinct for the entire 219

11 2Blacks in Bleckley County have filed suit in federal court
challenging the discriminatory appointment of blacks as poll 
managers and clerks. NAACP of Cochran/Bleckley County v. Bleckley 
County, Civ. No. 88-32-MAC (M.D.Ga.).

21



square-mile area." R2-59-6. n.3. There is no public transporta­
tion and it is difficult for poor blacks who lack private transpor­

tation to get to the polls. R3-81. The polling place, known as 
the Jaycee Barn, is owned by the Bleckley County Jaycees and serves 

as its meeting place. R3-81. The Jaycees is an organization with 
an all white membership, and for that reason many blacks are 

reluctant to vote at all. R3-81-3.
E . The Difficulties in Campaigning
As the district court found, to be successful in Bleckley 

County, a candidate has "to be known" by black and white voters. 

R2-59-28, 39. Whites have little difficulty gaining access to the 

black community, or being "known." Blacks, however, because of the 
continuing effects of past discrimination and the existence of 
racial polarization, find it very difficult to campaign effectively 

in the white community.
In 1982 when Mattie McDonald ran for an at-large seat on the 

city council, she received invitations to speak at black churches 
but never any invitations to speak at white churches or organiza­
tions. R4-276. White candidates, however, are regularly invited 
to speak to black congregations. R3-112-13. According to 
defendant Holder, door-to-door personal contact is absolutely 

essential to a successful campaign in the county. R5-514. 

McDonald did campaign door-to-door in the black community, but 

because of doubts that she would be accepted she did not do the 

same thing in the white community. R4-277.
When plaintiff Roberson ran for the city council in 1986,

22



R3-79. Heblacks, but not whites, publicly campaigned for him. 

was never asked to speak at white civic or social organizations. 
R3-79-80. Based upon his experience, the continuing segregation in 

civic and private life of the county create substantial barriers to 
the ability of blacks to participate effectively in the political 

process. R3-81, 88, 90.
Plaintiff Walker got no public support or contributions from 

whites during his campaigns for city council. R4-332. He spoke 
before black, but not white, organizations. R4-333. He didn't 

attempt to put his campaign cards in white businesses because I 

didn't think they would be accepted." R4-334.
Council member Basby has been invited to speak at black clubs 

and churches, but not to white organizations. R4-317-18. White 
candidates have addressed the all white Rotary Club in Cochran, but

never any black candidates. R5-537.
In 1989, state senator Joseph Kennedy, as part of his campaign 

for lieutenant governor, spoke at the Cochran Rotary Club. 

Defendant Holder, a member of the club, had been asked previously 

by one of Kennedy's aides to "get as many blacks together" as he 
could in an effort to promote Kennedy's candidacy. R5-512. Rather 
than inviting any blacks to the Rotary Club, Holder arranged for 

Basby and Roberson, the two black elected members of the city 
council, to meet with Kennedy separately at the public library. 

R3-88-90, R4-307-09, R5-536. According to Roberson, being excluded 

from places like the Rotary Club deprives blacks of a chance to 
meet white voters and "be more positive in running their cam­

23



paigns. R3-90. Basby agreed. R4-313.
Efforts to build a bi-racial political organization in 

Bleckley County have been unsuccessful. The Concerned Citizens 
Committee was established in Cochran several years ago by McDonald 

and others to help improve local government. Both whites and 

blacks participated initially, but the number of white participants 

has declined. At the present time there is only one active white

member. .R4-286, 296.
F. Maintenance of the Sole Commissioner System and The 

Ma ]or itv Vote Requirementt
The sole commissioner form of government is the most extreme 

form of at-large elections. R3-132, 207. Coupled with a majority 

vote requirement, and where voting is racially polarized, it 

virtually assures that blacks are excluded from effective partici­

pation in the political process.
Since the 1960's there have been efforts in Bleckley County to 

adopt a multi-member board of commissioners. In 1972, the
Republican candidate for commissioner advocated bringing the issue 

to a referendum vote. P.Exh. 303. In 1975 the grand jury recom­
mended that a committee be established to study the feasibility of 

a board of commissioners, P.Exh. 335, and in 1982, 1983 and 1985 
the grand juries recommended that a referendum be held on whether 

to change the sole commissioner system. P.Exh. 132, 207, 209. A 

referendum was finally held on the question in 1986. There was 
some organized effort in the black community in support of the 

referendum, but it was defeated by a vote of 57% against to 43% 
for. R4-320-21 . Defendant Holder, whose position was jeopardized

24

...... . "  - '  - »• • -



by the referendum, actively campaigned against it. R5-540. He ran 

newspaper and radio ads urging that the sole commissioner system be 
maintained. R5-540.

The Bleckley County Democratic executive committee adopted a 
majority vote requirement for county primary elections in 1964. P. 
Ex. 250, R3 — 121—23. Prior to that time nomination was by a simple 

plurality. R3-123. Political leaders in the county, such as 

representative Jessup, Democratic Party chairman JameSs S. Dykes, 

and mayor James M. Dykes, were knowledgeable and experienced 

politicians. They were firmly committed to maintaining white 
control and knew the likely racial impact of a majority vote 
requirement for county offices. R3-129.

Later that same year, the general assembly enacted a law 

requiring a majority vote for nomination or election to all state 

and county offices. Representative Denmark Groover of Bibb County 
was a principal sponsor of the majority vote law and said that it 
was needed to thwart the recent increases in Negro voter registra­
tion and to make it impossible for the black "bloc vote" to elect 
a candidate to office by a plurality. P.Exh. 229-31.

During the time that the majority vote bill was being enacted, 

the general assembly attempted in numerous other ways to dilute the 

voting strength of blacks and ensure white dominance. House floor 
leader Frank Twitty strongly supported legislation in 1962 
requiring candidates to run at-large in counties with more than one 

senatorial district for the reason that "district elections almost 
inevitably would lead to the election of a Negro in one of Fulton

25



County's seven districts." P.Exh. 228. In 1964 the general
assembly reenacted the state's discriminatory literacy test 
designed to make it more difficult for blacks to register and vote.

Dr. McCrary testified that in his opinion the majority vote 
requirement was adopted, first by the Democratic executive 

committee and then by the general assembly, for the racially
discriminatory purpose of ensuring that no matter how many blacks 

registered to vote, the white majority would be able to control the 
outcome of elections. R3-134, 142, 180-81.

G . Geographical Compactness

The district court found that "[t]here can be little dispute 
that the black community is sufficiently geographically compact to 

meet the Gingles standard." R2-59-45. If the county commission 

were elected from five single member districts using the existing
configuration of the county board of education, one of the

districts would contain a majority of voting age blacks. p. 10.
H. The Decision of the District Court

The district court held that evidence of the existence of 
racially polarized voting in Bleckley County "is simply unavail­
able." R2-59-46 n. 48 It found that "[njothing in the plaintiffs' 

evidence drawn from elections for local [municipal] office leads 

this court to a conclusion that voting on local levels is racially 
polarized." R2-59-28. As for the elections involving racial 

issues or themes, the court found "this evidence simply falls short 

of proving polarized voting." R2-59-39 According to the court, 

"under prevailing law with regard to this stage of the court's

26



— TiZi 1 . . v ■» :: AVi .'— »!»• .'VAv ii'.u.ri ■ikS ' 'ii.'— .»Akih(>w.(a i ->». * \ £ . o i t * . ' , ® . .

evaluation, the evidence to which Dr. Engstrom referred [the 1984 

regression analysis and the 1988 exit poll] is all the court has or 

can have." R2-59-41 (emphasis in original). Based upon this 
evidence, the court concluded that plaintiffs failed to demonstrate 

a pattern of racial bloc voting.
The court also held that "plaintiffs may not rely upon socio­

economic or other barriers as specific evidence that voting in the 

community is racially polarized." R2-59-41. The court firmly 
"reject[ed] plaintiffs' arguments that evidence other than that 
drawn from previous elections, i.e. Bleckley County's history of 
racial segregation, racial themes in public forums, etc., amounts 

to evidence of racial bloc voting." R2-59-42 n.45.
Although the trial judge refused to look at any factors other 

than election data in making his legal ruling on the issue of 

polarized voting, he acknowledged in a colloquy with counsel at the 

end of the trial that "[c ]ommonsense tells you something" about the 
futility of a black running for office in Bleckley County. R6-807- 

08. According to the judge:
Having run for public office myself, I'll guarantee you, 
under the circumstances, I wouldn't run if I were black 
in this county. You're going to put your hard-earned 
time and shoe leather campaigning throughout this 
county.... Mr. Basby is, as y'all said, an aberration. 
R6-808.
Having found no polarized voting, the court found that 

plaintiffs failed to prove that blacks were politically cohesive. 
"This [pattern of bloc voting] is what Gingles requires, and this 

court may require no less at this stage of its analysis. 

Plaintiff's evidence simply fails to prove that Bleckley County's

27



black community is politically cohesive." R2-59-45. The court did 
not consider any factors other than elections returns in making 
this determination.

The court, having concluded that plaintiffs failed to meet 
"two requisite preconditions to relief" set out by Thornburg v. 
Gingles, supra, considered only "brief[ly]M the other factors 
listed in the senate report that accompanied the 1982 amendment of 
Section 2 that were probative of vote dilution, 13 such as the 

socio-economic status of blacks, low black representation among 
poll workers, the existence of a slating process, whether the 
commission was responsive to black needs, and the policy underlying 

the commission form of government, but concluded that the evidence 
was not sufficient to support a Section 2 violation. R2-59-49.

The court dismissed plaintiffs' claim that the sole commis­
sioner system had been adopted or was being maintained with a 

discriminatory purpose on the ground that there was no "specific 
evidence of racial intent. R2-59-20. The court refused to 

consider whether the adoption of a majority vote requirement in 
1964, as to which there was "specific evidence" of racial intent, 
had made the sole commissioner system a more secure mechanism for 
discrimination, because the requirement was a part of state law 

which the county was powerless to change, and because litigation 

concerning whether the majority vote law violated Section 2 was 
pending in another case. R2-59-22. 13

13See, S.Rep. No. 147, 97th Cong., 2d Sess. 28-9 (1982).

28



THE STANDARD OF REVIEW

The standard of review is one of reviewing errors of law, 
including the correction of findings of fact based on misconcep-> 

tions of the law. Concerned Citizens v. Hardee County Board of 
Commissioners, 906 F.2d 524, 526 (11th Cir. 1990).

SUMMARY OF ARGUMENT
In applying the three part test for a violation of Section 2 

set out in Thornburg v. Gingles, supra, and in holding that 

plaintiffs failed to prove racial bloc voting, the district court 
erred by refusing to consider evidence other than that drawn from 

prior elections, by failing to give adequate- consideration to 
evidence of prior elections and by relying almost exclusively on 

the two elections which could be analyzed by quantitative tech­

niques. Gingles and the precedents of this Court require a court 
to consider factors other than elections where election data is 

sparse or unavailable, both to determine the existence of racial 
bloc voting as well as the denial of equal access to the political 

process, e . g . , the testimony of experienced local politicians, the 

history of discrimination, continuing segregation, socio-economic 
conditions, and the difficulties minorities have in campaigning in 
the white community. The court also failed adequately to consider 
evidence of: few black candidacies or electoral successes in county 
wide contests; black electoral successes in non or less dilutive 

systems which used district voting and/or a plurality vote; and, 

elections with racial themes or issues.

In holding that blacks were not politically cohesive, the

29



court erred in relying exclusively on election returns, by failing 
to give adequate consideration to evidence#of prior elections and 
in refusing to consider other relevant evidence, e . g . , that blacks 
shared a common experience in past discriminatory practices, that 

blacks had common social, economic and political interests, that 

the black community supported religious, civic and political 
organizations, and that blacks supported black candidates where 

they had a realistic chance of winning.
The district court erred in refusing to consider whether the 

majority vote requirement had a discriminatory purpose or effect. 
The requirement was enacted by the general assembly in 1964 to 

reshape at-large elections into more secure mechanisms for 

discrimination wherever they existed in the state. Under the 

circumstances, the at-large system in Bleckley County is the 
product of intentional discrimination and violates Section 2. 

Dillard v. Crenshaw County, 640 F.Supp. 1347 (M.D.Ala. 1986). 
Brooks v. Miller , supra, a statewide challenge to the majority vote 
requirement, was filed after the instant litigation and does not 

take precedence over it.
The trial court failed to follow the analysis in Vi 11 age of 

Arlington Heights v. Metropolitan Housing Development Corp., 429 

U.S. 252 (1977), in refusing to consider circumstantial evidence of 

intent, and in holding that plaintiffs failed to produce "any 

evidence" that the sole commissioner form of government was 
adopted, or was being maintained, with a racially discriminatory 

purpose.

30



ARGUMENT AND CITATIONS OF AUTHORITY 
I. The District Court Erred in Failing to Consider, or Give the 

Required Weight to. Relevant Evidence of Polarized Voting

In Thornburg v. Gingles, 478 U.S. 30, 50-1 (1986), the Supreme 
Court established a three part test for determining a violation of 

Section 2 of the Voting Rights Act, 42 U.S.C. 1973. The minority 
must demonstrate that: (1) it is geographically compact, i. e . it
could constitute a majority in a single member district; (2) it is 

politically cohesive; and, (3) whites vote as a bloc usually to 
defeat the candidates supported by the minority.^ Bloc voting 

was defined as "'a consistent relationship between [the] race of 
the voter and the way in which the voter votes,1...or to put it 
differently, where 'black voters and white voters vote different- 
ly.'" Id. at 53 n.21. The Gingles analysis has been adopted and 

applied by this Court in its voting cases. See, e . g . Carrollton 

Branch of NAACP v. Stallings, 829 F.2d 1547, 1550 (11th Cir. 1987); 
Solomon v. Liberty County, Florida, 899 F.2d 1012 (11th Cir.

1990)(en banc).
The district court found that blacks in Bleckley County were 

geographically compact, but that plaintiffs failed to establish the 

remaining two Gingles factors in that they failed to prove the 
existence of polarized voting based solely upon evidence drawn from 
prior elections. The court erred by refusing to consider other 

relevant evidence, and by relying almost exclusively on the two

^According to the Court, the other factors listed in S.Rep. 
No. 147, supra, "are supportive of, but not essential to, a 
minority voter's claim." 478 U.S. at 48 n . 15 (emphasis in 
original) .

31



'K.' J  .M .

elections which could be.analyzed by quantitative techniques.

A - The Court’s Refusal to Consider All the Relevant Evidence 
The district court refused to consider any evidence to prove 

racial bloc voting other than election data. This was clear error 
of law under Gingles and the precedents of this Court.

Gingles held that in some cases a minority group may never 

have been able to sponsor a candidate. Under such circumstances, 
"courts must rely on other factors [than elections] that tend to 
prove unequal access to the electoral process." 478 U.S. at 57
n.25 (emphasis supplied). Moreover, where the minority has begun

I
just recently to sponsor candidates, "the fact that statistics from 

only one or a few elections are available for examination does not 
foreclose a vote dilution claim." Id. 15

The trial court believed it was prohibited from considering 
| evidence other than election data by Gingles. supra, 478 U.S. at

63> and Collins v. City of Norfolk. 816 F.2d 932, 935 (4th Cir.
.

1987), which held that causation, or the reasons black and white 

voters voted differently, was irrelevant to the determination ofI

j polarized voting. R2-59-40 Plaintiffs, however, did not

^Plaintiffs believe footnote 25 in Gingles means at least two 
things: (1) racial bloc voting may be proved by factors other than 
election data; and, (2) where racial bloc voting cannot be shown 
because, for example, a system is so discriminatory that the 
minority has never participated in elections as voters or candi­
dates,^ or where^ the evidence is simply sparse, a Section 2 
violation can still be established by proof that the minority is 
denied equal^ access to the electoral process ’ based upon the 
totality of circumstances identified in the legislative history of 
Section 2. See, S.Rep. No. 417, supra, at 29. The evidence of 
racial bloc voting in this case is strong, but quite apart from 
that, the totality of circumstances clearly supports a violation of 
the equal access standard' of Section 2 identified in footnote 25.

32



introduce evidence of socio-economic and other barriers to voting, 
the history of discrimination, racial campaign appeals, the 
testimony of experienced local politicians, etc. to show why voters 
voted differently, only that they were in fact voting different­
ly.^ Gingles is no bar to the consideration of such evidence 

for that purpose, and it was error for the court to exclude it.

The Gingles requirement that a court look at other factors in 
determining the existence of polarized voting, or access to the 
electoral process, where election data -is sparse or unavailable is 
simply a restatement of pre-existing voting rights case law. In 
Nevett v. Sides, 571 F.2d 209, 223 (5th Cir. 1978), the court held 
that:

Bloc voting may be indicated -,.by a showing...of the 
'existence of past discrimination in general..., large 
districts, majority vote requirements, anti-single shot 
voting provisions and the lack of provision for at-large 
candidates running from particular geographical subdis­
tricts. 1 . . . Of course, bloc voting may be demonstrated by 
more direct means as well, such as statistical analy­
ses,... or the consistent lack of success of qualified 
black candidates.

571 F.2d at 223 n.18 (citing Zimmer v. McKeithen, 485 F.2d 1297, 
1305 (5th Cir. 1973) (en banc). • ‘

The Zimmer-Nevi tt method of proving polarized voting has been 
consistently followed and approved by this Court. In United States 

v. Marengo County Commission, 731 F .2d 1546, 1567 n.34 (11th Cir. 

1984), for example, the Court held that in addition to direct

^The failure to establish a bi-racial political organization 
in the county, for example, is evidence of general polarization in 
the electorate and evidence that voting is likely polarized as 
well. The evidence does not, however, tell us why the polarization 
exists, nor was it introduced to do so.

33



statistical analysis "[w]e have stated that ’[b]loc voting may 
[also] be indicated by a showing under Zimmer of...past discrimina­
tion in general...or by 'the consistent lack of success of 
qualified black candidates'." In Carrollton Branch of NAACP_v^ 
Stallings, supra, 829 F.2d at 1558, the Court held that polarized 

voting can be established "through the clearly acceptable means of 

a bivariate regression analysis and the testimony of lay witness­

es." Other decisions are to the same effect. See, McDaniels— v^ 
Mehfoud, 702 F.Supp. 588, 593 (E.D.Va. 1988)("Racially polarized 
voting can be established through both anecdotal evidence and 

electoral analysis."); Windy Boy v. County of Big Horn, 647 F.Supp. 
1002, 1013 (D.Mont. 1986)("The testimony of observers of Big Horn 

County politics confirms that it is racially polarized. ); Sierra. 
v. El Paso Independent School District, 591 F.Supp. 802, 807 

(W.D.Tex. 1984) (racial bloc voting may be shown by "lay testimony 
from...practical politicians who are thoroughly familiar with 
voting behavior"); Gingles v. Edmisten, 590 F.Supp. 345, 367

(E.D.N.C. 1984), aff'd sub nom. Thornburg v. Gingles, supra.
One decision, Jackson v. Edgefield County,— South Carolina 

School District, 650 F.Supp. 1176 (D.S.C. 1986), has even expressed 
a preference for lay testimony over analysis of election data.

According to the court:
Even more persuasive to the Court than the experts 
quantitative analysis of polarization on voting behavior 
is the testimony by the local politicians who, through 
their participation in the political processes, have the 
direct observation and are familiar with the voting 
practices and voting patterns in Edgefield County.

650 F.Supp. at 1198.
34



ĝ aatatateaa ■ ■ ■■■■*■ ■ m l MimmmAim i
V>. U.l«

In this case there was a substantial amount of evidence 
showing the existence of polarized voting, other than evidence 

drawn directly from elections, which the district court totally 
ignored. That evidence included the testimony of experienced local 
politicians that voting was polarized; a long history of discrimi­

nation in the jurisdiction, particularly discrimination in 
registering and voting; de facto segregation in housing, civic 

organizations, churches and social clubs; racial campaign appeals; 
the prevalence of strong racial attitudes in the county; the 

depressed, and distinctive, socio-economic status of blacks; the 
use of only one polling place (owned by an all white membership 
organization); the difficulties black candidates have in gaining 
access to the white community; and, the difficulty in establishing 

a bi-racial political organization in Bleckley County. Gingles and 

the decisions of this Court hold that such evidence is relevant and 

must be considered, particularly where election data is sparse or 

unavailable. It was error for the district court completely to 
ignore it. 17

B . The Court's Reliance on Quantitative Analysis
In making its finding that voting was not polarized, the 

district court relied almost exclusively on the 1984 and 1988 

presidential primary elections, these being the only elections for 

which quantitative analysis (i.e . regression analysis and an exit 
poll respectively) could be done. R2-59-41. There was, however,

1 ‘ As noted supra, this evidence also proves "unequal access 
to the electoral process" Gingles, supra, 478 U.S. at 57 n. 25.

35

\



i. e .substantial additional evidence from previous elections, 

municipal and board of education elections in which blacks were 

successful, and elections in which race was an issue. It was error 

for the court to fail adequately to consider this evidence and 
limit its review to statistical evidence of racial bloc voting.

In Lodge v, Buxton. 639 F.2d 1358 (5th Cir. 1981), aff'd sub 

nom. Rogers v . Lodge. 458 U.S. 613 (1982), a challenge to the at- 
large method of electing the Burke County Commission, there was no 

regression analysis or survey data offered at all. The evidence of 
polarized voting consisted entirely of: (1) one black candidate won 
a majority of the votes in all four of the majority black precincts 
in the county while losing in the others; (2) the only other black 

candidate won a majority in three of the four majority black 
precincts and lost in the others; (3) a white candidate who was 
thought of as being sympathetic to black political interests was 

soundly defeated; and (4) a black was elected in a recent city 

council election in a district with a high percentage of black 

residents. Lodge v. Buxton. Civ. No. 176-55 (S.D.Ga. Oct. 26, 
1978), slip op. at 7-9. Based upon this evidence, the court of 

appeals found "the evidence of...bloc voting was clear and 
overwhelming." 639 F.2d at 1378. The court of appeals found "of 
particular significance... the fact that in the one city election 
in which city councilmen were elected from single-member districts, 

a Black was elected." Id ■ The finding of polarized voting was 
affirmed by the Supreme Court. Rogers v. Lodge, supra, 458 U.S. at 
623.

36



Other courts have also noted the importance of black electoral 
successes in single member or non-dilutive systems within the same 

jurisdiction in determining polarized voting. In Jackson v. 
Edgefield County, South Carolina, supra, the court found that black 
successes in majority black districts for the county council were 
evidence of racially polarized voting in a suit challenging at- 

large elections for the county board of education. According to 

the court, "[t]hese two recent County Council elections confirmed 

the political unity of each racial group and the cohesiveness of 
its voting behavior." 650 F.Supp. at 1198.

Similarly, in Cross v . Baxter. 604 F.2d 875, 880 n .8 (5th Cir. 
1979), a challenge to at-large elections in Moultrie, Georgia, and 

where regression analysis could not be done because of the limited 

number of precincts, the court held that a finding of no polarized 

voting by the trial court "would be clearly erroneous." The 

evidence relied upon by the court of appeals included an analysis 
°f aggregate vote totals of municipal elections, and the election 
of a black to the city council by a plurality of votes following a 

successful Section 5 challenge to an unprecleared majority vote 
requirement.

The district court in this case, however, attached no 
significance at all to the fact that blacks had won in the majority 
black district in Cochran,18 and it placed no importance on the

18Indeed, the court indicated that these elections were not 
relevant precisely because they occurred in a majority black 
district. In its discussion of political cohesiveness and the 
plaintiffs' failure to show "a pattern of bloc voting," the court 
held that "these men, black members of the community, represent

37



-i' V.v.ji. W&*JLL i

fact that a black had beet, elected to the board of education from 

a majority black district. The court also discounted the fact that 
overtly racist candidates, such as J. B. Stoner and Lester Maddox, 
had consistently done well in Bleckley County.

The district court also failed properly to take into account 
the importance of few black candidacies or electoral successes in 
determining polarized voting. In Bailey v, vinina 514 F .Supp.
«2, 46! (M.D.Ga. 1981), by contrast, the court held that 

"Ulacially polarized white voting is in part demonstrated by the 

dramatic lack of success of black candidates in Putnam County 
elections." In Wilkes County, Ga. v. United qr,.., A50 F .Supp.
H71, 1174 (D.D.C. 1978), in the absence of any statistical 
analysis, the court made a finding of polarized voting based on 

aggregate vote totals, and the fact that "there have been very few 
black candidates for office" and few blacks had been elected.

Other courts have also recognized that few black candidacies 
are both a response to and evidence of polarized voting. In 
McMillan v. Escambia County, 748 F.2d 1037, 1045 (11th Cir. 1984), 

the court concluded that "the lack of black candidates is a likely

majority black district'? " ?n / / r ,
court also failed to use the reauired 0riginal>* The
importance of Basby's electio^ to at Care.„ln assessing the
Collins v. City of' Norfolk Sa Clty council seat.
Basby was first" eUc^ed by k P UraliK'of Vhe *t. 937‘. P- 27• tion with a greater percental Vf M 0V h!uVOtest ln a Jurisdic- whole. Thereafter ran ^ blacks than the county as a
incumbent, and often unooDOSed °ffice hold« ’ .« «  **eand running essentially jii lngles recognizes, incumbency
candidates ̂ u c h  t S a f t L i r T c c e s r f 7 ^ 011̂ '  benefits <=" blackchallenge. 468 U.S. at 60. ess does not negate a Section 2

38



f t Accord, Citizens forresult of a racially discriminatory system. 
a Better Gretna v. City of Gretna, 636 F.Supp. 1113, 1119-20, 1135 
(E.D.La. 1986); Jeffers v. Clinton, 730 F.Supp. 196, 213 (E.D.Ark. 
1989). The court in Hendrix v. McKinney, 460 F.Supp. 626, 632 
(M.D.Ala. 1978), found that the fact that voting follows racial 
lines "undoubtedly discourages black candidates because they face

the certain prospect of defeat."
In this case, the court below was faced with a situation where

blacks had never run for the commission, and only one black had run 
county wide. Blacks had, however, run for city and county offices 

which used non or less dilutive procedures such as district voting 
or a plurality vote, and had achieved significant success. 

Moreover, in elections with racial themes or issues, voting was 
demonstrably polarized, a pattern of voting that was confirmed by 
the testimony of experienced local politicians and expert witness­

es. The trial judge clearly recognized and understood the 
discriminatory meaning of these facts in the context of Bleckley 

County's racial history and demography, as is apparent from his 
comment that "I'll guarantee you, under the circumstances, I 

wouldn't run if I were black in this county." R6-808. Nonetheless, 
the coifrt felt it was legally required to ignore all evidence of 
racially polarized voting except that drawn from elections, 

particularly the two elections that could be analyzed by quantita­

tive techniques. ̂

19a judge is not, of course, required to ignore 
abandon commonsense in determining the existence 
voting. See, Jeffers v. Clinton, supra, 730 F.Supp.

experience or 
of polarized 
at 208 ("our

39



n r a

The lrony of the court's decision, with its blind insistence 
on statistical methodology, lies in the fact that the mote dilutive

‘ SySCe" 13 ' the "°re in depresses black political
participation - the more secure and less subject it is to challenge
nnder Section 2 Such a tesult cannot be scared with the Voting
ights Act or with Singles, which requires a court in cases where

! ‘ 316 feK’ °r bUCk/“hlte • * « « « > .  no rely upon other
actors that tend to prove polarized voting, and that show unequal 

access to the electoral process.

The district court committed revetsible error in failing to 
consider all the relevant evidence.20 Upon the record in this 

case its findings that plaintiffs failed to prove polarized voting 
the denial of equal access are clearly erroneous.

S S ^ S ^ a ^ n a i l i n ^ to P u n i e r " t h e ^ I T

. When the d'StriCt COUrt turned to the second Gingles element 
cal cohesiveness - it committed essentially the same error

ln ltS tZeatment of “ cial bloc voting; it excluded from 
consideration all evidence except analysis of election returns.

to" “ rV/idV. a stCrong?yn%°olf̂ Ss Stt?te' "hlc? « «  no^required polarized voting) - and llrms this conclusion" of raciallv
F.Supp. at 102?; r'aantaithy7 dOo L V of°Uco':y0f BigH°rn' »<£• 647
assessment is necessary „hen eXami SenSe and intuitivepolarized voting"). 7 examining the question of racially

This Court has held thpr "in __
much specificity in reasoning and fact find^ arSa °-f the law is as dilution cases. Cross v BaxtPr e Ct f rn/ng recluired" as in vote 
reason, the failure of* a trL’l pra> 604 F -2d at 879. For that
52(ea)aUv DContrary evidence" violates"^h^ discuss "substantial 52(a), F.R.Civ.P. The decision of t-h ^  requirements of Rule 
reversed on that basis as well f ^  dlstrict c°urt should be

L
40



The district court found that blacks in Bleckley County were 
not politically cohesive because there was no

strong pattern of correlation between the number of 
registered black voters and the number of votes received 
by a candidate expected to receive black support or a
?httKTrn unifle.d support for particular candidates from the black community. R2-59-45.

First, since proof of racially polarized voting "is one way of 

proving political cohesiveness" under the Gingles analysis, 478 
U.S. at 56, the court necessarily committed error if its finding on 

polarized voting was in error. Second, while the district court 
properly held that the failure to prove polarized voting does not 

mean the black community is not politically cohesive, R2-59-42, the 

court erred by failing to consider evidence other than that drawn 
from election returns in determining the cohesiveness issue.

This Court held in Concerned Citizens v, Hardee County Board 

—  Commissioners, 906 F.2d 524, 527 (11th Cir. 1990), that
political cohesiveness could be shown by evidence that minorities 
(blacks and hispanics) "worked together and formed political 
coalitions." Similarly, in _East Jefferson Coalition v. JeffPr,nn

— rish’ 691 F -SuPP. 991 , 999 n .6 (E.D.La. 1988), the court held 
that political cohesiveness could be shown from testimony by "black 

community leaders... that they often crossed district lines to help 

one another in political campaigns." In LULAC v. Midland Indepen­

dent School District, 812 F.2d 1494, 1500-01 (5th Cir. 1987),

vacated on other grounds, 829 F.2d 546 (5th Cir. 1987)(en banc), 

the court found political cohesiveness of the minority (blacks and 

Mexican-Americans) based on "share[d] common experience in past

41



- .rJ Ox-.'. i-v •.''nK.

discriminatory practices," common political goals, testimony that 

minorities "worked together" and that they have "common social, 
economic, and political interests which converge and make them a 
cohesive political group."21 Other cases which have addressed 

the issue are to the same effect.
In Monroe v. City of Woodville, Mississippi, 881 F.2d 1327, 

1331 (5th Cir. 1989), the court recognized that while statistical 

proof drawn from election returns is likely to be the most 

persuasive proof of political cohesiveness, "other evidence may 
also establish this phenomenon." The plaintiffs in' Neal v. 
Coleburn, 689 F.Supp. 1426, 1436 (E.D.Va. 1988), established 
political cohesiveness by showing, inter alia, that blacks were 
politically active, supported the NAACP and a Civic League, that 

political campaigning took place in black churches, and that blacks 

had run for office. Also see, Williams v. City of Dallas, 734 

F.Supp. 1317, 1393 (N.D.Tex. 1990)(relying on, among other things, 
"credible lay testimony" for proof of political cohesiveness); 
Brewer v. Ham,- 876 F.2d 448 (5th Cir. 1989) (lay testimony from 

members of the community may be sufficient proof of political 
cohesion).

There was an extraordinary amount of evidence presented in 

this case showing the political cohesiveness of blacks in Bleckley 

County, e . g . that the black community regularly supported black

2Tpolitical cohesiveness has frequently been an issue in cases 
such as Concerned Citizens and LULAC, where the minority was 
composed of two groups. The method of proof in these cases, 
however, is analogous to that in cases involving only one minority.

42



that thecandidates where they had a realistic chance of wining; 

black community supported an NAACP chapter and a political action 

organization (Concerned Citizens Committee); 'that political 
campaigning took place in the black community and in black 
churches; that blacks shared a common experience in past discrimi­

natory practices; that blacks had common social, economic, and 
political interests (as this law suit demonstrates) which converged 
and made them a cohesive political group. The district court, 
however, simply ignored this evidence, apparently because it felt 
that to consider it would mean that cohesiveness would be so 

obvious that it "would be presumed." R2-59-43. Given the evidence 
in this case, if blacks in Bleckley County are not politically 
cohesive, then the term is legally meaningless.

The court erred as a matter of law in relying exclusively on 
election returns and in refusing to consider other relevant 
evidence of political cohesiveness. Given the evidence, the
court's finding that blacks were not politically cohesive is 
clearly erroneous..

111 * I"* in Refuginft to Consider the DiscriminatoryPurpose; and Effect of the Maiority Vote Requirement L

The district court refused to consider whether the majority 
vote requirement had a discriminatory purpose or effect because the 
statute was a part of state law which the county lacked power to 
change, and the claim that the statute violated the Voting Rights 
Act was the subject of pending litigation in another district.

Factually, the court was incorrect that counties in Georgia 

lack power to change or control their local election procedures.

43



As the Court found in Rogers v. Lodge, supra, 458 U.S. at 626, the 

maintenance of state st-atutes providing for county elections is as 
a practical matter determined by a county's state representatives, 
"for the legislature defers to their wishes on matters of purely 

local application." Bleckley County officials do in fact have some 

responsibility for the maintenance of a majority vote requirement 
for the county commissioner, and it was error for the court to 

refuse to consider whether it had a discriminatory purpose or 
effect- Also see, Carrollton Branch of NAACP v. Stallings, supra. 
829 F .2d at 1551-54, describing enactment by the general assembly 

of redistricting plans for Carroll County at the request of the 
county's representatives.

Even if the county had no power to alter the majority vote 

requirement, that would not be a bar to a Section 2 challenge. 
Section 2 by its terms applies to any voting practice "imposed or 
applied by any State or political subdivision." 42 U.S.C.
1973(a). It is sufficient for a Section 2 inquiry that a practice 

is being "applied" by a political subdivision; it is irrelevant 
whether the practice was "imposed" by the state legislature.22

In Dillard v. Crenshaw County. 640 F.Supp. 1347 (M.D.Ala.

22if the district court felt the presence of the legislature 
was necessary to a just proceeding or determination of the issue 
presented, the proper course would have been to require joinder 
under Rule 19, F.R.Civ.P., not to dismiss the claim. Dickinson v. 
Indiana State Election Board, 1991 WL 82414 (7th Cir. May 21, 
1991)(reversing the dismissal of a Section 2 challenge to a 
legislative^ apportionment for failure to join the legislature as a 
party). Liability under Section 2 may be determined by a court 
without regard to who has the authority under state law to adopt or 
amend a challenged voting practice. Id.

44



1986), a case strikingly similar to the instant law suit, the court 

invalidated at-large elections in several Alabama counties based 
upon evidence that a statewide numbered place law enacted in 1961 
had tainted at-large systems wherever they existed in the state. 
According to the court:

regardless of the reasons for which the at-large systems 
were put into place in the various counties... the 
numbered place laws have inevitably tainted these systems 
wherever they exist in the state. In adopting the laws, 
the state reshaped at-large systems into more secure 
mechanisms for discrimination. And as the evidence makes 
clear, this reshaping of the systems was completely 
intentional.

This evidence adequately supports the conclusion that 
the at-large systems now being used...are a product of 
intentional discrimination.

640 F.Supp. at 1357. The finding by the district court that the 

at-large method of elections violated Section 2 was expressly 
affirmed on appeal. See, Dillard v. Crenshaw County, Alabama, 831 

F.2d 246, 252 (1 1th Cir. 1987), affirming in part, remanding in 
part. 649 F.Supp. 289 (M.D.Ala. 1986),.

As in Dillard, the majority vote requirement in this case was 

enacted by the state in 1964 to reshape at-large elections into 
more secure mechanisms for discrimination wherever they existed, 
including in Bleckley County. Under the circumstances, the at- 
large system now being used is the product of intentional discrimi­
nation and violates Section 2. Accord, Dillard v. Baldwin County 
Board of Education. 786 F.Supp. 1459, 1468 (M.D.Ala. 1988) 

(invalidating county at-large elections because they were "a 
product of... racially discriminatory efforts of the Alabama 
legislature").

45



Dillard is consistent with prior cases invalidating challenged 

election schemes based upon the impact of a majority vote require­
ment. In Rogers v. Lodge, supra, 458 U.S. at 627, the Court struck 
down at-large elections in Burke County in part because the 1964 
state wide majority vote requirement operated "to submerge the will 
of the minority" and "deny the minority access to the system." In 
City of Rome, Georgia v. United States, 446 U.S. 156, 183-84 
(1980), the Court denied Section 5 preclearance to a number of 
voting changes in part because a 1966 change to a majority vote 
requirement "significantly decreased" the electoral opportunities 

of black candidates. Accord, White v. Regester, 412 U.S. 755, 766— 

77 (1973); Zimmer v. McKeithen, supra, 485 F.2d at 1305. Also see, 

S.Rep. No. 417, supra, at 29, identifying the existence of a 

majority vote requirement as a factor tending to prove a Section 2 

violation. It was error for the district court in this case to 
refuse to consider the impact of the majority vote requirement on 

elections in Bleckley County.23
It was also error for the court to refuse to consider the 

purpose or effect of the majority vote requirement in Bleckley

^There have been more than a hundred Section 2 law suits 
filed against counties and local jurisdictions in Georgia challeng­
ing election procedures that were enacted by the general assembly, 
and the courts have never refused to consider any of them on the 
ground that the jurisdiction lacked the power to change its local 
election practices. See, McDonald, Binford & Johnson, "The Impact 
of the Voting Rights Act in Georgia" (forthcoming)., and, e.g., Edge 
v. Sumter County School District, 775 F .2d 1509, 1510 (11th Cir. 
1985)(election plan for Sumter County enacted by the general 
assembly subject to challenge under Section 2). Any other result 
would be wholly inconsistent with the remedial goals of the Voting 
Rights Act.

46



\>im :.-zL iTH x t Z x j i <i- y*.U , .w U<£V4& m s *t - i i >. -» Z-1  »'_*»>.' J j -k.'ir}■.M»£«*£tua&» *_ v̂.

County because the issue of the lawfulness of the 19£4 statute was 
being litigated in another district. First, Brooks v. Miller. Civ. 
No. 1:90-CV-1001 (N.D.Ga.), was filed after the instant litigation, 
and accordingly no deference to it is required. West Gulf Maritime 
A s s 1n v, I LA Deep Sea Local 24. 751 F.2d 721, 729 (5th Cir. 1985). 

Second, a ruling in Brooks. whether for the plaintiffs or the 
defendants, may not be dispositive of the issue whether the 
majority vote requirement has a discriminatory purpose or result in 
Bleckley County based upon the relevant local facts and circum­

stances. There was no basis for deference by the district court in 
this case.

IV• The Court Erred by Refusing to Consider Circumstantial
Evidence and Holding the Elections Were not Discriminatory
The district court held that plaintiffs failed to produce "any 

evidence that the at-large elected, sole commissioner form of 

government was adopted or was being maintained with a racially 
discriminatory purpose. R2-59-23. According to the court, 
"[w]ithout specific evidence" of intent the plaintiffs’ claim "must 
necessarily fail." R2-59-20. The court refused to consider the 
extensive circumstantial evidence plaintiffs produced.

The senate and house reports that accompanied the 1982 

amendments of Section 2 adopted the standard for proving discrimi­
natory purpose established in Village of Arlington Heights v. 

Metropolitan Housing Development Corn.. 429 U.S. 252, 264-68
(1977). According to the senate report,

plaintiff may establish discriminatory intent for 
purposes of this section, through direct or indirect 
circumstantial evidence, including the normal inferences

47



to be drawn from the foreseeability of defendant's 
actions which 'is one type of quite relevant evidence of 
racially discriminatory purpose.'

S.Rep. No. 417, supra, at 27, n.108. The house report, also citing
Arlington Heights, provides that

plaintiffs would not be required to prove that a discrim­
inatory purpose was the sole, dominant, or even the 
primary purpose for the challenged practice or procedure, 
but only that it has been a motivating factor in the 
challenged decision.

H.R.Rep. No. 227, 97th Cong., 1st Sess. 30, n.101 (1981).
According to Arlington Heights, determining whether racial 

purpose is a "motivating factor" requires a sensitive inquiry into 
such direct and circumstantial evidence of intent as may be 

available. Aside from specific, smoking gun, evidence, Arlington 

Heights identifies various factors that are probative of racial 

intent: (1) whether the impact of the official action bears more 

heavily on one race than the other; (2) the historical background 

the decision, particularly if it was made in the context of a 
series of official actions taken for invidious purposes; (3) the 
sequence of events leading up to the challenged decision^. (4) any 

departures from the normal procedural sequence; (5) substan.tative 
departures, particularly if the factors usually considered 
important by the decisionmaker strongly favor a decision contrary 

to the one reached; and (6) the legislative or administrative 
history, including contemporaneous statements by members of the 

decisionmaking body. Also see, Rogers v. Lodge, supra, applying a 

totality of the circumstances method of analysis to find that at- 
large elections had been maintained in Burke County with a racially

48



. uxA -  k/v.-v j  ->...«

discriminatory purpose.
Applying the Arlington Heights factors to the evidence in this 

case shows that Bleckley County's at-large elected, sole commis­
sioner form of government has been and is being maintained for the 

racially discriminatory purpose of diluting black voting strength. 

First, the at-large system adversely impacts more heavily upon 

blacks than whites. No black has ever been elected to a county 
office at-large, and given the existing polarization in the county 
it is unlikely that one ever will. Second, the historical 
background underlying the adoption of the sole commissioner system 

show that it was enacted at a time when blacks were excluded from 
the electorate and white supremacy was systematically maintained 

throughout the state. Third, the sequence of events shows that at- 
large elections in Bleckley County were made into a more secure 
mechanism for discrimination by the enactment of a majority vote 

requirement by the general assembly in 1964 to thwart black voter 
registration and dilute minority voting strength. Fourth, the 
decision to maintain the sole commissioner system is a substantive 

departure from the norm since most counties in the state use a 

board of commissioners form of government.
As the evidence makes clear, blacks in Bleckley County have no 

meaningful role in the selection of their county commissioner. 
Such a result is the foreseeable and intended consequence of 
maintenance of the present system. The factors relied upon by the 
Court in Rogers v. Lodge and identified in Arlington— h e i fib.ts. 

indicate that the at-large elected, sole commissioner form of

49



government: is being maintained for a racially discriminatory 

purpose. The district court erred in not considering the relevant 

circumstantial evidence in deciding plaintiffs' statutory and 
constitutional claims.

Conclusion

Plaintiffs proved that the at-large elected, sole commissioner 

system in Bleckley County dilutes their voting strength in 
violation of Section 2 and the Constitution. The decision of the 
district court should be reversed and the case remanded for 
implementation of a full and complete remedy for the violation of 
plaintiffs' protected rights.

Respectfully submitted,

Christopher Coates 
111 West Washington Street 
Milledgeville, GA 31061 
(912) 453-9512

Laughlin McDonald 
Kathleen Wilde 
Neil Bradley 
Mary Wyckoff
American Civil Liberties Union 
Foundation, Inc., Suite 202 
44 Forsyth Street, NW 
Atlanta, GA 30303 
(404) 523-2721

Attorneys for Appellants



CERTIFICATE OF SERVICE

I hereby certify that I have this day mailed a true and 

correct copy of the Brief of PI a in t i f f s-Appel 1 an t s and of 

Appellants' Record Excerpts to counsel for Defendants-Appellees 

in envelopes addressed to them and having affixed thereto 

sufficient postage prepaid thereon to assure delivery as follows:

Mr. R. Napier Murphy 
Mr. John C. Daniel, III 
240 Third Street 
P.0. Box 1606
Macon, Georgia 31202-1606
Mr. W. Lonnie Barlow 
P.0. Box 515 
Cochran, Georgia 31014

This 10th day of July, 1991.

Christopher Coates
Attorney for Plaintiffs-Appellants