Correspondence from Karlan to Schwartz (Judge); Martin and Kirksey v. Allain Memorandum Opinion and Order; Order

    • 
egalZefense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

April 6, 1987 

Hon. Charles Schwartz, Jr. 
United States District Court 
Eastern District of Louisiana 
500 Camp Street 
.New Orleans, LA 70130 

Re: Civ. Act. No. 86-4075, Chisom V. Edwards  

Dear Judge Schwartz: 

In plaintiffs' memorandum in opposition to defendants' 
motion to dismiss, we relied on the decision of the district 
court in Kirksey V. Allain refusing to dismiss a § 2 suit 
challenging judicial elections in Mississippi. See Plaintiffs' 
Memorandum at 1-2 and Appendix A. 

On April 1, after conducting a trial on the merits, the 
court issued an opinion upholding plaintiffs' challenge to eight 
Mississippi judicial districts. On pages 35-36 of its memorandum 
opinion and order, the court discusses in somewhat more detail 
than it did in its June 2, 1986, order, the basis for its 
conclusion that § 2 applies to judicial elections. To the best 
of plaintiffs' knowledge, Kirksey represents the only case in 
which a court has addressed the applicability of § 2 to judicial 
contests. 

I am enclosing a copy of that opinion. I am also serving 
counsel for the defendants with copies of the opinion and of this 
letter. 

Re pectfully submitted, 

1Qta., 
Pamela S. Karlan 

cc: Kendall L. Vick, Esq. 

enclosure 

Contributions are deductible for U.S. income tax purposes 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

• .. 



• 

D1STRiCT OF Mia)111•101 

) FILED 
IN THE UNITED STATES DISTRICT C 
SOUTHERN DISTRICT OF MISSISSI 

JACKSON DIVISION 

FLOYDIST JAMES MARTIN, t AL. 

URT 
iztsIAP 0 1987 

ama4a A. PIERCE, CLERK 
BY 

Purr 

PLAINTIFFS 

VS. CIVIL ACTION NO. J84-0708(B) 

WILLIAM A. ALLAIN, GOVERNOR 
OF MISSISSIPPI, ET AL. 

(CONSOLIDATED WITH) 

HENRY KIRKSEY, ET AL, ON BEHALF 
OF THEMSELVES AND ALL OTHERS 
SIMILARLY SITUATED, 

DEFENDANTS 

PLAINTIFFS 

VS. CIVIL ACTION NO. J85-0960(B) 

WILLIAM A. ALLAIN, GOVERNOR 
OF MISSISSIPPI, ET AL. DEFENDANTS 

MEMORANDUM OPINION AND ORDER  

Invoking the court's federal question and civil rights sub-

ject matter jurisdiction, the named Martin and Kirksey plain-

tiffs, black citizens and regiStered voters of the State of 

Mississippi, bring these two consolidated voting rights actions 

individually and on behalf of two Federal Rules of Civil Proce-

dure 23(b)(2) plaintiff classes previously defined by the court 

in its order of March 8, 1985, in Martin as "all present and 

future black citizens and black qualified electors of Hinds 

County and Yazoo County, Mississippi" and in its order of Janu-

ary 23, 1986, in Kirksey as "all present and future black citi-

zens and black qualified electors of the State of Mississippi." 

They challenge the at-large, numbered post election methods used 

AO 72A 
(Rev. 8/82) 



to elect the county judges by separate places in Harrison, Hinds, 

and Jackson Counties, Mississippi, the multi-member districts 

used to elect the chancellors from separate places in all Missis-

sippi Chancery Court Districts and the multi-member districts 

used to elect the circuit judges from separate places in all 

Mississippi Circuit Court Districts. Although the plaintiffs 

also challenge the district lines themselves for the chancery and 

circuit court districts in their First Amended Complaint, they 

presented no proof on this issue and did not address it in final 

arguments. 

The plaintiffs allege that the challenged statutes violate 

their rights secured by Section 5 of the Voting Rights Act of 

1965, as amended, 42 U.S.C. § 1973c, Section 2 of the Voting 

Rights Act of 1965, as amended in 1982, 42 U.S.C. § 1973, the 

Fourteenth and Fifteenth Amendments to the United States Consti-

tution, and 42 U.S.C. § 1983, because they have not been pre-

cleared as allegedly required by Section 5, because they are 

allegedly adopted and are allegedly being maintained for the 

racially discriminatory purpose of diluting, minimizing, and 

cancelling out black voting strength, and because they allegedly 

result in a denial or abridgement of the right of plaintiffs and 

other black citizens to vote on account of race or color because 

black citizens allegedly have less opportunity than white citi-

zens to participate in the political process and to elect repre-

sentatives of their choice. 

2 

NO 72A 
Rev. 8/82) 



S 

The plaintiffs requested the convening of a three-judge 

district court to hear and determine their Section 5 claims, 
11 

declaratory judgments that the three challenged election systems 

violated plaintiffs' rights under the previously mentioned fed-

eral statutes and constitutional provisions, preliminary and 

permanent injunctive relief enjoining the defendants from holding 

any further primary or general elections under the challenged 

statutes, injunctive relief ordering into effect plans for the 

election of judges from single-member districts which do not 

dilute black voting strength and which remedy the violations 

alleged by the plaintiffs, a court-ordered award of court costs, 

litigation expenses, and reasonable attorneys' fees pursuant to 

42 U.S.C. §§19731(e) & 1988, and such other relief as may be just 

and equitable. 

By Order filed on April 3, 1986, the three-judge district 

court previously convened in the Kirksey aCtion pursuant to Sec-

tion 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 

§1973c, determined that Section 5 applied to the election of 

state court judges and enjoined the defendants from implementing 

a number of Mississippi statutes involving the circuit, chancery, 

and county court sys-tems unless and until they were precleared 

under Section 5. Kirksey v. Allain, 635 F. Supp. 347 (S.D.Miss. 

1986)(three-judge court). By letter dated July 1, 1986, the 

U. S. Attorney General, through his designated representative, 

precleared a number of those statutes. However, the Attorney 

General did interpose a Section 5 objection to the utilization of 

3 

AO 72A • 
(Rev. 8/82) - 



the post feature for the election of judges in certain judicial 

districts which became multi-judge for the first time after No-

vember 1, 1964, the effective date of Section 5 coverage for the 

State of Mississippi. 

Following an evidentiary hearing on May 27, 1986, and 

through an order filed on May 28, 1986, the Court in Kirksey  

granted the Kirksey plaintiffs' motion for preliminary injunction 

and preliminarily enjoined the defendants from conducting elec-

tions for the offices of circuit judge in the State of Missis-

sippi, chancery judge in the State of Mississippi, and county 

judge in only Harrison, Hinds, and Jackson Counties, Mississippi. 

Joined as defendants in these actions are Governor William 

A. Allain, Attorney General Edwin Lloyd Pittman and Secretary of 

State Dick Molpus in their official capacities and as members of 

the State Board of Election Commissioners; the Hinds County Board 

of Election Commissioners; the Yazoo County Board of Election 

Commissioners; the Hinds County Democratic Party Executive Com-

mittee; the Hinds County Republican Party Executive Committee; 

the Yazoo County Democratic Party Executive Committee; and 

the Yazoo County Republican Party Executive Committee. By previ-

ous orders of the Court, the Republican and Democratic Parties 

and the party executive committees for Hinds and Yazoo Counties 

have been relieved of the duties of any further appearances and 

participation in this case. The .remaining .defendants have denied 

that the plaintiffs are entitled to the relief which they seek. 

4 

40 72A 
(Rev. 8/82) 



(Jk I 

Following discovery, the consolidation of the Martin and 

Kirksey actions pursuant to Rule 42 of the Federal Rules of Civil 

Procedure by Order dated August 22, 1986, a pretrial conference, 

and the entry of a Pre-trial Order, these two consolidated ac-

tions were tried before the United States District Judge, without 

a jury, from March 9 to March 13, 1987, in Jackson, Mississippi. 

Having considered the oral and documentary proof received at 

trial, the parties' pre-trial briefs and proposed findings of 

fact and conclusions of law, and their final arguments, the Court 

makes the following findings of fact and cotclusions of law as 

required by Rule 52(a) of the Federal Rules of Civil Procedure 

and in accordance with the appropriate district-by-district 

analysis mandated by the United States Supreme Court in 

Thornburg v. Gingles, 478 U.S: , n.28, 106 S.Ct. 2752, 2271 

n.28, 92 L.Ed.2d 25, 52 n.28 (1986), and the Fifth Circuit's 

requirement of detailed findings of fact in cases alleging vote 

dilution, Velasquez v. City of Abilene, 725 F.2d 1017, 1020-21 

(5th Cir. 1984). 

FINDINGS OF FACT  

General  

1. The named Kirksey plaintiffs are black, adult, resident 

citizens and voters of the State of Mississippi, residing in 

various counties and judicial districts. By Order filed on Janu-

ary. 23, 1986, the Kirksey action was certified as a plaintiff 

class action pursuant to Federal Rules of Civil Procedure 23(a) 

5 

AO 72A ' • . 
(Rev. 8/82) 



1 

and (b)(2) on behalf of a plaintiff class defined as "all present 

and future black citizens and black qualified electors of the 

State of Mississippi," 

2. Named Martin plaintiffs are black, adult, resident citi-

zens and electors of Hinds County, Mississippi, and reside in the 

Fifth Chancery Court District and the Seventh Circuit Court Dis-

trict. By Order filed on March 8, 1985-, the Martin action was 

certified as a plaintiff class action pursuant to Federal Rules 

of Civil Procedure 23(a) and (b)(2) on behalf of a plaintiff 

class defined as "all present and future black citizens and black 

qualified electors of Hinds County and Yazoo County, Missis-

sippi." 

3. The Defendants are the Governor of the State of Missis-

sippi and other state officials and official bodies responsible 

for conducting elections in the state. All of the defendants are 

sued in their official capacities. 

. 4. At all relevant times in this action, the defendants 

were and have been acting under the color of the statutes, ordi-

nances, regulations, customs, and usages of the State of Missis-

sippi, Hinds County, Mississippi, and Yazoo County, Mississippi. 

5. Mississippi has a tiered court system. The Mississippi 

Supreme Court is the appellate court of last resort. It is com-

posed of nine justices, three of whom are elected from each of 

AO 72A 
(Rev. 8/82) 

6 



• 

the three supreme court districts into which the state is di-

vided. Supreme court elections are district elections rather 

than statewide elections. Justices determine cases regardless of 

origin throughout the state. 

6. Trial courts of unlimited jurisdiction are the chancery 

courts, which are courts of equity and probate, and circuit 

courts, which are courts of law. The state is divided into 

twenty chancery and twenty circuit districts. All districts are 

drawn according to county lines. There are two single-county 

chancery districts; the rest contain two to six counties each. 

There are thirty-nine chancery ludoes. Six chancery districts 

are single-iudge districts. There is one single-county circuit 

district; the rest contain two to seven counties each. There are 

forty circuit judges. Six circuit districts are single-judge 

districts. In all multi-judge districts, both chancery and cir-

cuit, judges are elected in district-wide elections and to desig-

nated posts. Each judge is required to be a resident of his or 

her district. In some districts there are post residency re-

quirements. 

7. County courts are trial courts with the amount in con-

troversy limited to $10,000.00. They are optional with the indi-

vidual counties. Nineteen of the eighty-two counties in the 

state have county judges. Sixteen have one county judge each. 

Hinds County has three county judges and Jackson and Harrison 
. . 

Counties have two each. In these three counties the county 

judges are elected to specific posts by county-wide vote. 

7 

0 72A 
Rev. 8/82) 



• 

8. The Mississippi constitution provides that each person 

eligible to hold the office of circuit judge and chancery judge 

must be a practicing lawyer for five years, at least 26 years of 

ace, and a citizen of the state for five years. Miss. Const. 

Art. 6, §154. County judges must meet the same qualifications as 

circuit judges. Miss. Code Ann. §9-9-5. 

9. The small claims and misdemeanor courts in Mississippi 

are known as Justice Courts. Each county has at least two jus-

tice court justices elected from districts by district vote. 

They serve on a county-wide basis regardless of the locale of the 

controversy within the county. There is no requirement that jus-

tice court justices be attorneys. 

10. This suit involves the chancery and circuit courts 

statewide and the county courts of Hinds, Harrison and Jackson 

Counties. It does not involve the Mississippi Supreme Court or 

the justice courts. 

11. The only district officials connected with the justice 

system other than judaes are district attorneys who are elected 

from each circuit court district. Court administration and case 

filings are handled by chancery clerks and circuit clerks in each 

county who are elected in each county of the state. Venue and 

jurisdiction are determined by statute and in general are tied to 

counties. 

12. The following proof was made either by stipulation in 

the Pre-trial Order or by Exhibits D-44 or P-16. "Black%" refers 

to the percentage of black population as a whole. "Black VAP" 

8 

‘0 72A 
Rev. 8/82) 



• 

refers to bladk voting age population. "s1 of Black Attorneys 

Eligible" refers to the percentage of black attorneys eligible to 

stand for election as ludge out of the total number of attorneys 

residing in the district. Two figures under this column repre-

sent a disagreement between the parties but with one of the fig-

ures being agreed to by each party. 

CHANCERY COURT DISTRICTS  

District 1 
Alcorn 
Itawamba 
Lee 
Monroe 
Pontotoc 
Prentiss 
Tishomingo 
Union 

District 2 
Jasper 
Newton 
Scott 

District 3 
DeSoto 
Grenada 
montgome y 
Panola 
Tate 
Yalobus 

Distric 

a 

4 
- Amite 
Frankli 
Pike 
Walthal 1 

Total 
Population 

33,036 
20,518 
57,061 
36,404 
20,918 
24,025 
18,434 
21,741 

Black % Black VAP 

10.4 
6.2 

20.4 
29.7 
15.6 
10.8 
3.7 

13.8 

9.3 
5.8 

18.0 
25.7 
13.8 
9.3 
3.4 

12.1 

No. of 
% Black Black 
Attorneys Elected 
Eligible Officials 

232,137 

17,265 
19.967 
24,556 
62,788 

53,930 
21,043 
13,366 
28,164 
20,119 
13,183 

15.8 13.8 

49.2 
27.2 
35.0 

43.9 
23.8 
31.5 

2.47 13 

36.5 32.3 

17.8 
41.8 
40.9 
48.9 
38.4 
38.2 
33.7 30.1 1.53 39 

16.3 
37.4 
35.3 
42.9 
34.5 
32.8 

4.4 15 

149,805 

• 13,369 
8,208 

36,173 
13,761 

•-47.6 ' 
• 37.2 .• 32.6 
• 43.3 38.3 
41.0 • 35.2 

71,511 43.0 37.8 4.91 24 

9 

0 72A 
3ev. 8/82) 



District 5 
Hinds 

District 6 
Attala 
Carroll 
Choctaw 
Kemper 
Neshoba 
Winston 

District 7 
Bolivar 
Coahoma 
Leflore 
Quitman 
Tallahat 
Tunica 

250,998 45.1 40.2 3.84-3.39 25 

19,865 39.1 34.0 
9,776 45.3 40.4 
8,996 28.1 24.5 

10,148 54.3 48.1 
23,789 17.9 15.6 
19,474 39.2 33.8 
92,048 34.9 30.5 0.0-1.42 23 

45,965 62.1 54.7 
36,918 64.0 58.3 
41,525 59.1 54.2 
12,636 56.0 49.8 

hie 17,157 57.3 50.3 
9,652 73.0 67.1  

163,853 61.5 55.2 5.32-5.20 110 

District 8 
Hancock 
Harrison 
Stone 

District 9 
13,931 65.6 59.5 
2,513 55.6 51.1 
7,964 65.7 58.8 

34,844 62.0 56.1 
51,627 37.4 34.8 

n 72,344 55.6 50.1  
183,223 52.9 47.8 6.89 58 

Humphrey 
Issaquen 
Sharkey 
Sunflowe 
Warren 
Washing 

District 

a 

24,496 9.9 8.8 
157,665 19.3 16.9 

9,716 22.6 19.1  
191,877 18.3 16.0 1.16 7 

10 
Forrest 
Lamar 
Marion 
Pearl River 
Perry 

District 11  
Holmes 
Leake 
Madison 
Yazoo 

66,018 26.8 23.3 
23,821 10.8 9.6 
25,708 29.9 25.8 
33,795 14.9 13.3 
9,864 21.7 19.1  

159,206 22.1 19.4 2.89-2.95 16 

22,970 71.1 64.8 
18,790 34.9 31.0 
41,613 55.9 50.3 
27,349 51.4 46.1  

110,722 54.4 48.7 4.85-5.94 52 

AO 72A 
(Rev. 8/82) 10 

•• 



District 12  
Clarke 16,945 
Lauderdale 77,285 

94,230 

34.8 31.1 
31.4 27.3 
32.0 27.9 

District 13  
Covinato 15,927 34.6 29.7 
Jeff Dav s 13,846 53.6 48.2 
Lawrence 12,518 30.9 27.2 
Simpson 23,441 30.7 26.8 
Smith 15,077 21.2 17.6 

80,809 33.6 29.2 

District 14  
Chickasaw 17,851 36.0 31.8 
Clay 21,082 50.0 45.1 
Lowndes 57,304 34.2 29.6 
Noxubee 13,212 64.6 59.1 
Oktibbeh4 36,018 34.3 28.8 
Webster 10,300 19.6 16.8 

155,767 38.2 . 33.1 

1.63-1.62 8 

0.0 15 

4.65-4.41 50 

District 15  
Copiah 26,503 48.4 43.3 
Lincoln 30,174 30.0 26.3  

56,677 38.6 34.2 2.0 12 

District 16  
Georae 15,297 9.5 8.1 
Greene 9,827 20.1 17.2 
Jackson 118,015 18.7 16.3  

143,139 17..8 15,5 3.16 13 

District 17  
Adams 38,071 48.5 44.9 
Claiborne 12,279 74.5 72.5 
Jeffersdn 9,181 82.0 77.7 
Wilkinson 10.021 66.9 63.7  

69,552 60.1 56.7 5.05-5.05 73 

Districts 18 
Benton 
Calhoun • 
Lafayette 
. Marshall 
Tippah 

8,153 
15,664 
31,030 
29,296 
18,739 

37.9 
25.5 
26.4 
53.2 
15.9 
32.9 28.2 

31.7 
21.5 
21.6 
49.0 
13.7 

102,882 5.38-5.34 21 

• District 19  
Jones 61,912 23.1 20.6 
Wayne 19,135 33.5 29.2  

• 81,047 25.6 22. I.as lo 

AO 72A 
(Rev. 8/82) 11 



District 
Rankin 

20 
69,427 18.6 17.4 1.75 3 

Total 
Population 

CIRCUIT COURT DISTRICTS  

Black % Black VAP 

District 1  
Alcorn 33,036 10.4 9.3 
Itawamba , 20,518 6.2 5.8 
Lee 57,061 20.4 18.0 
Monroe 36.404 29.7 25.7 
Pontotoc 20,918 15.6 13.8 
Prentiss 24,025 10.8 9.3 
Tishominao 18,434 3.7 3.4 

No. of 
% Black Black 
Attorneys Elected 
Eligible Officials 

210.396 16.0 14.0 2.71 12 

District 2  
Hancock 24,496 9.9 8.8 
Harrison 157,665 19.3 16.9 
Stone 9,716 22.6 19.1 

191,877 18.3 16.0 1.16 7 

District, 3  
Benton 8,153 37.9 31.7 
Calhoun 15,664 25.5 21.5 
Chickasaw 17,851 36.0 31.8 
Lafayettie 31,030 26.4 21.6 
Marshall1 29,296 53.2 49.0 
Tippah 18,739 15.9 13.7 
Union 21,741 13.8 12.1  

142,474 30.4 26.1 4.34-4.32 27 

Distric 4 
Holmes 
Humphre s 
Leflore 
Sunflow r 
Washing on 

22,970 71.1 64.8 
13,931 65.6 59.5 

_ 41,525 59.1 54.2 
34,844 62.0 56.1 
72,344 55.6 50.1  

185,614 60.3 54.7 6.97-7.04 76 

AO 72A 
(Rev. 8/82) 12 



District 5 
Attala 
Carroll 
Choctaw 
Grenada 
Montqome7 
Webster 
Winston 

District 6 
Adams 
Amite 
Franklin 
Jefferso. 
Wilkinso 

District 7 
Hinds 
Yazoo 

District 
Leake 
Neshoba 
Newton 
Scott 

District 

8 

9 
Claiborn 
Issaquen 
Sharkey 
Warren 

a 

District 10 

Clarke 
Kemper 
Lauderda 
Wayne 

District 
Bolivar 
Coahoma 
Quitman 
Tunica 

le 

11 

19,865 39.1 34.0 
9,776 45.3 40.4 
8,996 28.1 24.5 

21,043 41.8 37.4 
13,366 40.9 35.3 
10,300 19.6 16.8 
19,474 39.2 33.8  

102,820 37.6 32.8 1.11-2.19 26 

38,071 48.5 44.9 
13,369 47.6 42.3 
8,208 37.2 32.6 
9,181 82.0 77.7 

10,021 66.9 63.7  
78,850 53.4 49.1 4.16-5.10 61 

250,998 45.1 40.2 
27,349 51.4 46.1  
278,347 45.8 40.7 3.85-3.49 30 

18,790 34.9 31.0 
23,789 17.9 15.6 
19,967 27.2 23.8 
24,556 35.0 31. 5  
87,102 28.5 25.3 3.17 8 

12,279 74.5 72.5 
2,513 55.6 51.1 
7,964 65.7 58.8 

51,6 27 37.4 34.8  
74,383 47.2 44.2 6.73-5.88 48 

16,945 
10,148 
77,285 
19,135 
123,513 

34.8 
54.3 
31.4 
33.5 
34.0 

31.1 
48.1 
27.3 
29.2  
29.7 1.45-1.44 16 

45,965 62.1 54.7 
36,918 64.0 58.3 
12,636 56.0 49.8 
9,652 73.0 67.1  

105,171 63.1 56.5 3.84-3.70. 91 

AO 72A 
(Rev. 8/82) 13 



District 12 
Forrest 
Perry 

District 13 
Covington 
Jasper 
Simpson 
Smith 

District 14 
Copiah 
Lincoln 
Pike 
Walthall 

66,018 
9,864 

75,882 26.1 

26.8 23.3 
21.7 19.1 

22.8 4.08-4.19 6 

15,927 34.6 29.7 
17,265 49.2 43.9 
23,441 30.7 26.8 
15,077 21.2 17.6  
71,710 34.0 29.6 0.0 15 

26,503 
30,174 
36,173 
13,761 

48.4 
30.0 
43.3 
41.0 

43.3 
26.3 
38.3 
35.2 
35.7 4.04 23 106,611 40.5 

District 15  
Jeff Davis 13,846 53.6 48.2 
Lamar 23,821 10.8 9.6 
Lawrence 12,518 30.9 27.2 
Marion 25,708 29.9 25.8 
Pearl River 0 33,795 14.9 13.3  

109,688 24.2 21.3 0.0 20 

District 16 
Clay 
Lowndes 
Noxubee 
Oktibbeha 

21,082 50.0 45.1 
57,304 34.2 29.6 
13,212 64.6 59.1 
36,018 34.3 28.8  

127,616 40.0 34.7 5.55-5.21 44 

District 17  
Desoto 53,930 17.8 16.3 
Panola 28,164 48.9 42.9 
Tallahatchie 17,157 57.3 50.3 
Tate 20,119 38.4 34.5 
Yalobusha 13,183 38.2 32.8  

132,553 34.7 30.8 0.93 39 

District 18 
- Jones Co. 61,912 23.1 20.6 1.19 7 

District 19  
George 15,297 9.5 8.1 
Greene 9,827 20.1 17.2 
Jackson 118,015 18.7 16.3  

143,139 17.8 15.5 3.16 13 

AO 72A 
(Rev. 8/82) 14 



District 
Madison 
Rankin 

Hinds Cou 

Harrison 

Jackson C 

20 
41,613 55.9 50.3 
69,427 18.6 17.4  

111,040 32.6 29.5 4.76 18 

nty 250,998 45.1 40.2 3.84-3.39 25 

County 157,665 19.28 16.86 1.32 5 

ounty 118,015 18.74 16.26 3.49 9 

History of Official Discrimination  

13. Mississippi has a long history of official discrimina-

tion touching on the right of black citizens to vote and partici-

pate in the democratic process. This history has been judicially 

determined by federal courts at all levels. This Court took 

judicial notice of these determinations as set forth in the many 

cases listed in Exhibit P-128. 

14. This history includes the use of such discriminatory 

devices as poll taxes, literacy tests, and intimidation of 

blacks. The history also includes the frequent use in municipal 

elections of at-large elections and majority-white election dis-

tricts which had the effect of precluding black citizens from 

election to public office. 

15. This history of discrimination has extended to the bar 

and consequently to the judiciary. In 1967 the first black stu-

• dent was graduated from the University of Mississippi School of 

Law, the only state supported law school and the only accredited 

•.law school in the state in.1967. •. •That first graduate was Reuben 

AO 72A 
(Rev. 8/82) 15 



Anderson, now a justice of the Mississippi Supreme Court. Before 

1967 there were only a handful of black attorneys in the state. 

At present approximately 5% of the enrollment at each of the two 

law schools in the state are black students. 

16. The first black judge in Mississippi since Reconstruc-

tion was Reuben Anderson who received a gubernatorial appointment 

to fill a vacant Hinds County Court seat in 1977. Thereafter Jus-

tice Anderson was appointed by the governor to a 7th Circuit 

Court vacancy. Justice Anderson was unopposed in his election to 

a full term in that position in 1982. Subsequently in 1985 he 

was appointed by the governor to a vacancy on the Mississippi 

Supreme Court and in 1986 was elected to a full term in that 

position. In 1978 Cleve McDowell was elected County Judge of 

Tunica County in an uncontested election. In 1985 Fred Banks was 

appointed by the governor to fill the vacancy on the 7th Circuit 

Court created by Justice Anderson's appointment to the Missis-

sippi Supreme Court. These are the only three blacks to have 

served on the state bench in Mississiopi, other than justice 

court judges. There are 111 state court judgeships: nine supreme 

court justices, 39 chancery judges, 40 circuit judges and 23 

county court judges. 

17. The bar of the State of Mississippi is an integrated 

bar (meaning that all practicing attorneys must be members). 

Membership of the Mississippi State Bar Association is approxi-

mately 5,900. Willie Rose, immediate past president of the 

16 

1/40 72A• 
Rev. 8/82) - 



Magnolia Bar Association, an association primarily of black at-

torneys, testified that there are approximately 220 black lawyers 

in the state of whom approximately 150 are statutorily qualified 

to run for chancery or circuit judge, or 2.5% of all lawyers. 

The Population of the state is approximately 35% black. 

Racially Polarized Voting  

18. The existence of racially polarized voting in Missis-

sippi has been found by numerous courts. ,Exhibit P-128. 

19. Both sides called experts on racial bloc voting who had 

performed analyses using the recognized ecological regression and 

homogeneous precinct methods. Both experts had studied judicial 

elections and other elections. These analyses produced essen-

tially the same results and conclusions as to the particular 

elections studied. The primary differences in their testimony 

resulted from the fact that Dr. Allan Lichtman, who testified for 

the plaintiffs, limited his study of judicial elections to the 

judicial elections in which there were races pitting blacks 

against whites whereas Dr. Harold Stanley, who testified for the 

defendants, included in his study all judicial elections since 

1978. 

20. Of the eight iudicial elections involving black candi-

dates studied by Dr. Lichtman, only one black candidate won. Of 

the unsuccessful black candidates, each carried the black vote by 

at least 59% (except for one to be explained later) with the 

average percentage of black vote for the black candidate being 

68%. No black candidate who lost received more than 12% of the 

AO 72A 
(Rev. 8/82) 

17 



white vote with the average percentage of the white vote for the 

black candidate being 2%. The only black candidate receiving 

less than 59% of the black vote was Melvin Jennings who ran for 

Chancery Judge in the 5th Chancery Court District in 1982. He 

received only 30% of the black vote. Jennings was under federal 

indictment at the time of the election and was later convicted. 

If the Jennings election figures are omitted, Dr. Lichtman's 

analysis shows that on average 75% of black voters and only 1% of 

the white voters voted for the unsuccessful black candidates. 

See Exhibit P-10. 

21. The only successful black judicial candidate in a con-

tested election was Justice Reuben Anderson in the 1986 Demo-

cratic Primary for the Central District Supreme Court seat. 

Justice Anderson ran against' Richard Barrett, an avowed segrega-

tionist. Justice Anderson received 85% of the black votes and 

58% of the white votes. Dr. Lichtman and Dr. Stanley both at-

tributed Justice Anderson's success to his qualifications and 

experience as compared to that of Barrett. 

22. Dr. Lichtman also studied the 1984 and 1986 congres-

sional election for the Second Congressional District. This 

district is known as the Delta District and comprises basically 

the counties extending along the Mississippi River in the western 

segment of the state. It has a slight black majority voting age 

population. In 1984 Robert Clark, a black state senator running 

as a Democrat, challenged white Republican incumbent Webb 

AO 72A 
(Rev. 8/82) 18 



6 • 

Franklin. In 1986 Mike Espy, a black lawyer running as a Demo-

crat challenged Franklin. Clark narrowly lost in 1984, receiving 

95% of the black vote and 7% of the white vote. Espy narrowly 

won in 1986 receiving 97% of the black vote and 12% of the white 

vote. 

23. Dr. Lichtman concluded that there is great polarization 

by both black and white voters throughout Mississippi but that 

polarization is particularly striking among whites who refuse to 

vote for black candidates. Dr. Lichtman characterizes the 

Anderson victory over Barrett as an aberration. He testified 

that although cross-over white votes elected Espy, the white vote 

was greatly polarized with the white candidate receiving 88% of 

the white vote. 

24. Dr. Stanley studied 57 judicial elections rather than 

lust the nine involving blacks against white. His analysis 

showed that in 37 of the 57 elections studied a majority of 

blacks voting voted for the winning candidate. From this and 

from Justice Anderson's victory he concluded that blacks and 

whites are not polarized in most judicial elections. He did 

concede that there is strong polarization of both races when 

elections involve blacks against whites. 

25. Several witnesses who have been actively involved with 

politics on various levels in various parts of the state corrobo-

rated the conclusion of Dr. Lichtman that great polarization 

exists. 

19 

AO 72A 
(Rev. 8/82) 



to • 

26. The Court finds that racial polarization of voters 

exists throughout the State of Mississippi, and specifically in 

those certain districts for which relief is granted hereunder, 

and that blacks overwhelmingly tend to vote for blacks and whites 

almost unanimously vote for whites in most black versus white 

elections. 

The Use of Unusually Large Election Districts, 
Majority Vote Requirements, Anti-Single Shot 
Provisions, and Other Voting Practices Which 
May Enhance the Opportunity for Discrimination 

27. Plaintiffs have argued that the districts for the chan— 

cery and circuit courts are unusually large and hinder the oppor-

tunity for blacks to elect candidates of their choice. Although 

black candidacies are generally less well financed than their 

white counterparts and black candidates must accordingly rely on 

door-to-door campaigning rather than the use of paid television 

advertisements, Mississippi is still a largely rural state, the 

use of television in judicial races is not widespread and the 

voters expect personal solicitation. There is valid policy for 

the limitation on the number of chancery and circuit court dis-

tricts into which the state is divided. The size of the present 

chancery and circuit court districts does not discriminate 

against black candidates and therefore black voters. 

28. Most chancery and circuit court districts are multi-

judge districts and in some multi-judge districts judicial candi-

dates run for specific posts. State election laws provide that a 

20 

AO 72A 
(Rev. 8/82) 



majority vote is required to win party nomination. In the gen-

eral election the winner is determined by the candidate receiving 

a plurality of the votes. Because of this many black candidates 

have qualified and run as independents rather than as candidates. 

of a particular political party. There are no anti-single-shot 

voting laws. Although it is obvious that abolition of the major-

ity ,vote requirements and post system without adoption of anti-

single-shot voting laws would make it easier in some situations 

for black candidates to be elected, this Court cannot hold that 

these provisions as they now exist discriminate against blacks 

per se. 

Candidate Slating Process  

29. There is no candidate slating process in Mississippi. 

Socio-Economic Disparities  

30. It is clear that throughout the State of Mississippi 

substantial socio-economic disparities exist between blacks and 

whites. Blacks trail whites in years of education completed, per 

capita income and percentage of population falling below the 

poverty line (Exhibit P-16). Dr. Chandler Davidson, a sociolo-

gist presented by the plaintiffs, testified that studies show 

that persons having a lower socio-economic standing tend to reg-

ister and vote at lesser rates than those who have a higher 

standing. He testified that blacks and whites of the same socio-

economic standing tend to register and vote at approximately the 

21 

AO 72A 
(Rev. 8/82) 



same rates. Since blacks comprise only 35% of the population of 

the state and since a considerably higher percentage of blacks 

than whites are of lower socio-economic status, this socio-

economic status of most blacks in Mississippi does hinder the 

ability of blacks to participate effectively in the political 

process. 

Racial Appeals During Political Campaigns  

31. With the large registration of and participation of 

black voters in Mississippi elections, racial appeals by candi-

dates are much less frequent than in past years. Plaintiffs, 

however, presented proof of racial appeals by white candidates in 

two recent elections: by Richard -Barrett in his 1986 challenge of 

Mississippi Supreme Court Justice Reuben Anderson and by white 

Congressman Webb Franklin in his 1986 race against challenger 

Mike Espy. The racial appeals by Barrett were overt and con-

tained no subtlety. The racial appeals by Franklin were more 

subtle. In both elections the black candidate won with cross-over 

white votes. 

Extent to Which Blacks Have Been Elected 
•to Public Office 

32. Since the passage of the Voting Rights Act of 1965 and 

other civil rights activities of the 1960's, participation by 

blacks throughout Mississippi in the electoral process has greatly 

increased resulting in over 500 blacks presently holding elected 

22 

40 72A 
(Rev. 8/82) 



office in Mississippi (Exhibit D-52). With few exceptions, how-

ever, all of these black officials are elected from black major-

ity, sinale-member election districts. Justice Reuben Anderson 

and Congressman Mike Espy are the only two blacks who have been 

elected from districts with large geographical areas. Espy's 

district has a majority black population while Anderson's dis-

trict has a majority white population. Testimony indicated only 

three blacks other than Anderson have 

office from 

Prosecuting 

County; and 

white majority districts: 

Attorney for Clay County; 

an Alderman from Corinth. 

been elected to public 

Bennie Turner, County 

the County Coroner for Clay 

Responsiveness  

33. Plaintiffs have offered no evidence on the issue of 

lack of responsiveness on the part of elected officials, and 

particularly the elected 

ticularized needs of the 

several of the witnesses 

judiciary of Mississippi, to the par-

members of the black community. However, 

testified that perception of the justice 

system among blacks would be improved if there were more black 

judges. 

Tenuousness of the State Policy 
Underlying At-Large Judicial Districts  

34. There is valid policy underlying the division of the 

state into a limited number of chancery and circuit court dis-

tricts and in having multi-judge districts for court administra-

tion purposes (as opposed to election purposes) in those 

districts where caseloads require more than one judge. Although 

23 

AO 72A 
(Rev. 8/82) 



plaintiffs argue that the state has no such policy, the creation 

by the legislature of such districts is a direct adoption of such 

a policy by the state. 

35. Although the state has adopted the policy of the post 

system of electing judges in multi-member judicial districts 

above the lustice court level, it long ago adopted the policy of 

single-member electoral districts for justice court judges. The 

state also has the policy of judges deciding cases which may 

originate outside their election districts. Supreme Court jus-

tices are elected from one of three districts but hear cases 

statewide. Justice court judges are elected from districts but 

hear cases countywide. Thus, this Court concludes that the policy 

of post system elections in multi-judge chancery, circuit and 

county court judicial districts •i tenuous. 

Legislative Intent to Adopt or Maintain 
Judicial Electoral System  

36. Plaintiffs introduced evidence in the form of old news-

paper articles (Exhibits P-44, P-45 and P-122) which indicated a 

racial motive underlying the adoption of statutes instituting a 

system in the early 1900's for electing judges. Before that time 

judges had been appointed. Defendants' expert Dr. Westley 

Busbee, a professor of Mississippi history, testified, however, 

that the reference to the possible election of blacks, if judges 

were to be elected, was an opposition tactic used at the time by 

supporters of an appointed judiciary. After Reconstruction when 

whites were successful in disenfranchising blacks, the state was 

24 

AO 72A !.. 
(Rev. 8/82) 



largely controlled by the landed aristocracy, known as the Bour-

bons, from the older, wealthier areas of the state which largely 

lay along the fertile lands 

the state grew, the poorer, 

state became more populous. 

bordering the Mississippi River. As 

hill lands in the eastern part of the 

During the early 1900's the progres-

sive or populist movement became popular in the hill areas. The 

adoption of judicial elections was but one of the successful 

battles won by the progressives against the Bourbons. Thus, the 

issue of race was not a reason for the adoption of an elected 

judiciary. 

37. Dr. Busbee studied the legislative passage of statute's 

adding chancery and circuit judges from 1968 through 1983 when 

most multi-member judicial districts were created and during 

which time there were blacks in the Mississippi Legislature. This 

study examined roll-call votes. The Mississippi Legislature keeps 

no formal legislative history of statutes. The study indicated 

practically no opposition by black senators or representatives to 

the adoption of any of the statutes. In 1985 the Legislature 

passed Chapter 502 of the Laws of 1985 recodifying all judicial 

districts and judgeships. Only two of sixteen black legislators 

voted against it. This Court concludes that neither a post sys-

tem of judicial elections in multi-member judicial districts nor 

multi-member judicial districts themselves were adopted for or are 

maintained with the intention of depriving blacks of the right to 

elect judicial candidates of their choice. 

25 

>0 72A 
Rev. 8/82) 



Findings as to Specific Districts  

38. The findings above are applicable generally to all 

chancery, circuit and county court districts in the state. The 

plaintiffs in addition presented specific proof as to certain 

districts. 

39. Of the twenty chancery court districts four have major-

ity black populations, the 7th, the 9th, the 11th and the 17th. 

All are multi-judge districts except the 17th. The 17th Chancery 

Court District is a single-judge district. 

40. Hinds County constitutes the 5th Chancery Court Dis-

trict which has four judges, Rankin County constitutes the 20th 

Chancery.Court District which has one judge. These Are the only 

one-county chancery court districts. 

41. In regard to the 5th, 7th, 9th and 11th Chancery Court 

Districts, plaintiffs have proven by a preponderance of the evi-

dence the following: (1) blacks constitute a sufficiently large 

and geographically compact group in each district so that sin-

gle-member judicial districts can be designed which would have 

substantial black populations and voting age majorities; (2) 

blacks are politically cohesive; and (3) the white voters vote 

sufficiently as a bloc to enable them usually to defeat black 

candidates who oppose white candidates. 

42. Other than counties contained within the 7th, 9th, 11th 

and 17th Chancery Court Districts, the only counties containing 

black majority populations are Kemper in the 6th Chancery Court 

District, Jefferson Davis in the 13th Chancery Court District, 

26 

AO 72A 
(Rev. 8/82) 



Clay and Noxubee in the 14th Chancery Court District, and 

Marshall in the 18th Chancery Court District. Even though these 

particular counties have black majority populations, all lie in 

districts which have over-all white majority populations. In 

none of these districts do blacks constitute a sufficiently large 

and geographically compact group so that the district could be 

divided into two, single-member sub-districts of equal population 

one of which has a substantial black population and voting age 

majority. Plaintiffs presented no proof as to the feasibility of 

dividing any of these districts into sub-districts. Plaintiffs' 

witnesses Kirksey and Turner both admitted that the 14th Chancery 

District could not be divided into single-member sub-districts 

having equal populations with one of the sub-districts having a 

black majority population. 

43. Of the twenty circuit court districts three have major-

ity black populations, the 4th, the 6th and the 11th. The 4th 

and 11th Circuit Court Districts are multi-judge districts; the 

6th is a single-judge district. 

44. Jones County constitutes the 18th Circuit Court Dis-

trict which has one judge. The 18th is the only one-county cir-

cuit court district. 

45. In regard to the 4th and 11th Circuit Court Districts, 

plaintiffs have proven by a preponderance of the evidence the 

following: (1) blacks constitute a sufficiently large and geo-

graphically compact croup in each district so that single-member 

judicial districts can be designed which have substantial black 

27 

AO 72A 
(Rev. 8/82) 



populations and voting age majorities; (2) blacks are politically 

cohesive; and (3) the white voters vote sufficiently as a bloc to 

enable them usually to defeat black candidates who oppose white 

candidates. 

46. Other than counties contained within the 4th, 6th and 

11th Circuit Court Districts, the only counties containing black 

majority populations are Marshall in the 3rd Circuit Court Dis-

trict, Yazoo in the 7th Circuit Court District, Claiborne, Issa-

quena and Sharkey in the 9th Circuit Court District, Kemper in 

the 10th Circuit Court District, Jefferson Davis in the 15th 

Circuit Court District, Clay and Noxubee in the 16th Circuit 

Court District, Tallahatchie in the 17th Court District and 

Madison in the 20th Circuit Court District. Even though these 

particular counties have black majority populations, all lie in 

districts which have over-all white majority populations. In 

none of the 3rd, 10th, 15th, 16th, 17th and 20th Circuit Court 

Districts do blacks constitute a sufficiently large and geo-

graphically compact group so that the district could be divided 

into two, single-member sub-districts of equal population one of 

which has a substantial black population and voting age majority. 

47. Hinds and Yazoo Counties constitute the 7th Circuit 

Court District which has four judges. Even though the 7th Cir-

cuit Court District has an over-all white majority population, 

plaintiffs have proven by a preponderance of the evidence the 

following: (1) blacks constitute a sufficiently large and geo-

graphically compact group in the district so that at least one 

28 

\O 72A 
Rev. 8/82) 



single-member judicial district can be designed whiCh would have 

a substantial black population and voting age majority; (2) 

blacks are politically cohesive in the district; and (3) the 

white voters vote sufficiently as a bloc to enable them usually 

to defeat black candidates who oppose white candidates. The 

Court makes these findings in spite of the fact that Justice 

Reuben Anderson was elected as a circuit judge in this district. 

48. Claiborne, Issaguena, Sharkey and Warren Counties con-

stitute the 9th Circuit Court District which has two judges. Even 

though Claiborne, Issaguena and Sharkey Counties all have sub-

stantial black population majorities, the district as a whole has 

a white population majority because of the larger population of 

Warren County and its smaller percentage of black population. Of 

the total population in the 9th Circuit Court District of 74,627, 

22,756 of its citizens live in Claiborne, Issaguena and Sharkey 

Counties and 51,627 live in Warren County. Kirksey testified 

that he could design two single-member sub-districts with sub-

stantially equal populations from the 9th Circuit Court District, 

but, in order for one of those to have a substantial black popu-

lation with a black majority voting age population, the black ma-

jority district would have to include all of Claiborne, Issaquena 

and Sharkey Counties plus almost all of Warren County, leavino as 

the second sub-district a portion of the City of Vicksburg. This 

design would be greatly distorted, would 

the district strongly along rural versus 

require that the candidate of preference 

29 

divide the two judges of 

urban lines and would 

for the black voters in 

AO 72A 
(Rev. 8/82) 



• 

the black majority sub-district run from a large four county 

area, a situation to which plaintiffs have objected by presenta-

tion of much evidence to the effect that geographically large 

districts hinder black candidates. Thus, the Court finds in 

regard to the 9th Circuit Court District that a single-member 

district cannot be designed which will give blacks any greater 

potential to elect a judicial candidate of their choice than the 

system which is now in effect in the District. 

49. As in the case of the 14th Chancery Court District 

which also includes Clay and Noxubee Counties, plaintiffs' wit-

nesses Kirksey and Turner both admitted that the 16th Circuit 

Court District could not be divided into single-member sub-dis-

tricts having equal populations with one of the sub-districts 

having a black majority. 

50. Madison and Rankin Counties constitute the 20th Circuit 

Court District which has two judges. Madison County has a black 

majority population equal to 55.9 percent of its 41,613 citizens. 

Rankin County has a total population of 69,427 of whom 18.6 per-

cent. are black. Accordingly, blacks do not constitute a suffi-

.ciently large and geographically compact group in the district so 

that two single-member sub-districts with substantially equal 

populations can be designed one of which would have a substan-

tial black population and voting age majority. 

51. Hinds County has a county court with three county 

judges. Although Hinds County has a black minority population of 

45.1 percent, plaintiffs have proven by a preponderance ,of the 

30 

72A 
,Rev. 8/82) 



evidence the following: (1) blacks constitute a sufficiently 

large and geographically compact group in Hinds County so that at 

least one single-member iudicial district can be designed which 

will have a substantial black population and voting age majority; 

(2) blacks are politically cohesive; and (3) the white voters 

vote sufficiently as a bloc to enable them usually to defeat 

black candidates who oppose white candidates. 

52. Harrison and Jackson Counties both have county courts 

with two judges. They have minority black populations of 19,28 

percent and 18.74 percent respectively. Blacks do not constitute 

a sufficiently large and geographically compact group in either 

county so that a single-member judicial district can be designed 

which would have a substantial black population and voting age 

majority. 

Other Findings  

53. The policy of Mississippi in regard to filling judicial 

offices, as expressed by legislative adoption of election stat-

utes, includes a majority vote feature as to a part of the proc-

ess. Although the winner of the general election is the 

candidate who receives a plurality, to obtain nomination as a 

candidate of the Democratic or Republican Party the candidate 

must receive a majority of the vote in the party primary. If no 

candidate receives a majority in the first primary, a run-off is 

held between the two candidates polling the most votes. Inde-

pendents can qualify to run in the general election without par-

ticipating in the party nominating process. Mississippi also has 

31 

%0 72A 
Rev. 8/82) 



a policy of requiring 

to stand for election 

been expressed by the 

offered no proof 

This Court finds 

Section 2 of the 

judges in multi-member judicial districts 

as to specific posts. This policy has also 

legislative passage of statutes. Plaintiffs 

or araument attacking either of these policies. 

that neither policy is a per se violation of 

Voting Rights Act of 1985. 

54. If deemed a proper remedy for any Section 2 violations, 

the division of any multi-member judicial districts into sub-

districts for election purposes should be done so that the sub-

districts so created contain substantially equal populations. 

This finding is not based on any ruling of this Court that the 

one-man, one-vote concept applies to judicial elections, which it 

does not, but on general principles of equity. 

55. Willie Rose testified as to the number of black lawyers 

in various counties 

office of chancery, 

listing by district 

5th 
7th 

who are statutorily qualified to hold the 

circuit or county judge. The following is a 

and county of those persons. 

Statutorily Qualified Black Lawyers  

Chancery Court Districts Circuit Court Districts 

Hinds 
Bolivar 
Coahoma 
Leflore 
Quitman 
Tallahatchie 
Tunica 

52 4th Humphreys 
4 Holmes 
0 Leflore 

Sunflower 
Washington 

4 
0 
0 
0 

8 7th Hinds 
Yazoo 

0 
2 
4 
2 

14 
22 

52 
0 

52 

AO 72A 
(Rev. 8/82) 

32 



9th Humphreys 0 
Issaquena 0 
Sharkey 0 11th Bolivar 4 
Sunflower 2 Coahoma 0 
Warren 8 Quitman 0 
Washington 14 Tunica 0 

24 

11th Holmes 2 
Leake 1 
Madison 3 
Yazoo 0 

4 

6 

The proof showed that of these statutorily qualified black law-

yers a number are engaged in other public activities, such as 

being members of the state legislature, from which they would 

have to resign in order to be eligible to hold a judgeship. 

CONCLUSIONS OF LAW  

1. This Court has jurisdiction of the parties and subject 

matter of the action pursuant to 28 U.S.C. §§1331, 1343(3) and 

(4), and 42 U.S.C. §§ 1973, 1973a(c), 19731(f). 

2. The action has been properly certified as two class 

actions under Rule 23(a) and (b)(2) of the Federal Rules of Civil 

Procedure. 

3. Plaintiffs challenge the at-large, numbered post elec-

tion method and use of multi-member districts for judicial elec-

tions under the Fourteenth and Fifteenth Amendments to the 

Constitution. Multi-member districts and at-large plans are not 

per se illegal under the Equal Protection Clause. Whitcomb V.  

Chavis, 403 U.S. 124, 142 (1971); Seastrunk v. Burns, 772 F.2d 

143, 150 (5th Cir. 1985). Multi-member districts violate the 

Fourteenth Amendment only if "conceived or operated as purposeful 

33 

AO 72A 
(Rev. 8/82) 



devices to further racial discrimination." Rogers v. Lodge, 458 

U.S. 613, 617, 619 (1982); Whitcomb, 403 U.S. at 149. There was 

no purposeful discrimination and no intent to discriminate when 

the statutes creating, adding to, and maintaining (recodifying) 

the multi-member judicial districts and the post system of judi-

cial elections were enacted. Therefore, plaintiffs' Constitu-

tional challenge fails. 

4. All portions of Mississippi are covered under Section 

4(a) of the Votina Rights Act for which preclearance is required 

under Section 5 of the Act, 42 U.S.C. §1973c. Since the filing 

of these cases, Defendants have obtained Section 5 preclearance 

from the United States Attorney General of all judicial election 

statutes challenged by Plaintiffs, except for the post provisions 

in the multi-member judicial districts. Contrary to defendants' 

argument, Section 5 preclearance does not preclude plaintiffs 

from challenging those statutes under Section 2. Although this 

point was raised by the parties in Thornburg v. Ginales, 478 U.S. 

, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the issue was not dis-

cussed by the United States Supreme Court. This Court accepts as 

proper the reasoning of Judge Phillips in Gingles v. Edmisten, 

590 F.Supp. 345, 375-76 (E.D.N.C. 1984), aff'd. in part and  

rev'd in part sub nom Thornburo v. Ginales, 478 U.S. 106 • 

S.Ct. 2752, 92 L.Ed.2d 25 (1986), which held that Section 5 pre-

clearance does not preclude plaintiffs' Section 2 challenge. The 

standards by which the United States Attorney General assesses 

voting changes under Section 5 are different from those by which 

34 

XO 72A 
Rev. 8/82) 



judicial claims under Section 2 are to be assessed by the judici-

ary. 590 F.Supp. at 376, citing S. Rep. 97-417 No. 10, at 68, 

138-39. Also, because the standards for Section 5 preclearance 

were applied in a non-adversarial administrative proceeding, the 

Attorney General's preclearance determination has no issue pre-

clusive effect to this action and private plaintiffs can chal-

lenge a plan or procedure even after Section 5 preclearance. 

590 F.Supp. at 376; see also U. S. v. East Baton Rouge Parish  

School Board, 594 F.2d 56, 59-60 & n.9 (5th Cir. 1979); Cook v.  

Luckett, 575 F.Supp. 485, 491 n.1 (S.D.Miss. 1983). 

5. Defendants assert that Section 2 of the Voting Rights 

Act does not apply to the election of state court -judges. Defen-

dants base their argument on the inclusion of the word "represen-

tatives" in the language of the statute. Section 2(b), as 

amended in 1982, provides that a violation of Sub-section 2(a) is 

established if, based on the totality of the circumstances, it is 

shown that members of a minority group "have less opportunity 

than other members of the electorate to participate in the po-

litical process and to elect representatives of their choice." 42 

U.S.C. §1973(b). There.is no legislative history of the Voting . 

Rights Act or any racial vote dilution case law which distin-

guishes state judicial elections from any other types of elec-

tions. Judges do not "represent" those who elect them in the 

same context as legislators represent their constituents. The 

use of the word "representatives" in Section 2 is not restricted 

to legislative representatives but denotes anyone selected or 

35 

AO 72A 
(Rev. 8/82) 



chosen by popular election from among a field of candidates to 

fill an office, including judges. Mississippi has chosen to hold 

elections to fill its state court judicial offices; therefore, it 

must abide by the Voting Rights Act in conducting its judicial 

elections, including Section 2 of the Voting Rights Act. Ac-

cordingly, this Court concludes as a matter of law that Section 2 

applies to judicial elections .. 

The defendants also argue that since the one-person, one-

vote doctrine does not apply to judicial elet-tions, then by anal-

ogy Section 2 of the Voting Rights Act does not apply. This 

argument simply is not persuasive. 

6. Congress substantially revised Section 2 of the Voting 

Rights Act in 1982 to make clear that a violation could be proven 

by showing a discriminatory result or effect alone without proof 

of a discriminatory purpose. Section 2 as amended provides: 

(a) No voting qualification or prerequisite to 
voting or standard, practice, or procedure shall be 
imposed or applied by any State or political.subdivi-
sion in a manner which results in a denial or abridge-
ment of the right of any citizen of the United States 
to vote on account of race or color, or in contraven-
tion of the guarantees set forth in section 1973b(f)(2) 
of this title, as provided in subsection (b) of this 
section. 

(b) A violation of subsection (a) of this section 
is established if, based on the totality of circum-
stances, it is shown that the political processes lead-
ing to nomination or election in the State or political 
subdivision are not equally open to participation by 
members of a class of citizens protected by subsection 
(a) of this section in that its members have less 
opportunity than other members of the electorate to 
participate in the political process and to elect rep-
resentatives of their choice. The extent to which 
members of a protected class have been elected to of-
fice‘in the State or political subdivision is one cir-
cumstance which may be considered: Provided, That 

36 

AO 72A 
(Rev. 8/82) 



nothing in this section establishes a right to have 
members of a protected class elected in numbers equal 
to their proportion in the population. 

42 U.S.C. §1973. 

7. Thornburg v. Gingles, 478 U.S. , 106 S.Ct. 2752, 92 

L.Ed.2d 25 (1986), is the latest case interpreting Section 2 as 

amended in 1982, and the Court accepts that case as applying to 

the issues before it. The analysis and ruling of Thornburg must 

be applied district by district. "The inquiry into the existence 

of vote dilution caused by submergence in a multi-member district 

is district-specific." Thornburg, 92 L.Ed.2d at 52 n.28. 

8. The Senate Judiciary Committee Majority Report accompa-

nying the bill that amended Section 2 in 1982 noted typical fac-

tors or circumstances that might be probative of a Section 2 

violation. These factors were also set forth in Thornburg. 

1. The extent of any history of official dis-
crimination in the state or political subdivision that 
touched the right of the members of the minority group 
to register, to vote, or otherwise to participate in 
the democratic process; 

2. The extent to which voting in the elections of 
the state or subdivision is racially polarized; 

3. The extent to which the state or political 
subdivision has used unusually large election dis-
tricts, majority vote requirements, anti-single-shot 
provisions, or other voting practices or procedures 
that may enhance the opportunity for discrimination 
against the minority group; 

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

5. The extent to which members of a minority 
group in a state or political subdivision bear the 
effects of discrimination in such areas as education, 
employment and health, which hinder their ability to 
participate effectively in the political process; 

6. Whether political campaigns have been charac-
terized by overt or subtle racial appeals; 

37 

AO 72A 
(Rev. 8/82) 



7. The extent to which members of the minority 
group have been elected to public office in the juris-
diction. 

Thornburg, 92 L.Ed.2d at 38, 42; S.Rep. 28-29. The Senate Report 

also mentioned additional factors that in some cases would have 

probative value to establish a violation. These are: 

A. Whether there is a significant lack of respon-
siveness on the part of elected officials to the 
particularized needs of the members of the minority 
group. 

B. Whether the policy underlying the state or 
political subdivision's use of such voting qualifica-
tion, prerequisite to voting, or standard, practice or 
procedure is tenuous. 

Id. at 38; S.Rep. 28-29. 

9. The Senate Report stressed that the list of tentative 

factors was not comprehensive or exclusive. As the Court in 

Thornburg found, "While the enumerated factors will often be 

pertinent to certain types of Section 2 violations, particularly' 

to vote dilution claims, other factors may also be relevant and 

may be considered." 92 L.Ed.2d at 43; S.Rep. 29-30. The Senate 

Committee Report also stated that "there is no requirement that 

any particular number of factors be proved,.or that a majority of 

them point one way or the other." Id. at 43; S.Rep. 29. The 

question whether the political processes are "equally open" de-

pends upon a searching practical evaluation of the "past and 

present reality" and on a "functional" view of the political 

process. 92 L.Ed.2d at 43; S.Rep. 29-30. 

10. Sub-section 2(b) establishes that Section 2 of the 

Voting Rights Act has been violated where the "totality of the 

circumstances" reveal that "the political processes leading to 

38 

AO 72A 
(Rev. 8/82) 



nomination or election. .are not equally 

by members of a [protected class] . . .and 

less opportunity than other members of the 

pate in the political process and to elect 

open to participation 

that its members have 

electorate to partici-

representatives of 

their choice." 42 U.S.C. §1973(b); Thornburg, 92 L.Ed.2d at 42. 

This Court has analyzed the totality of the circumstances pre-

sented in this case and concludes that there is a violation of 

Section 2 in the 5th, 7th, 9th, and 11th Chancery Court Dis-

tricts, in the 4th, 7th, and 11th Circuit Court Districts and in 

the Hinds County Court District (hereinafter referred to as 

"specified districts"). 

11. The Court finds the proof submitted .by plaintiffs is 

sufficient to establish a past history of official discrimination 

on a statewide basis including the specified districts. This 

discrimination has in the past affected the right of blacks to 

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

process. 

12. Racial bloc voting is a key element of a vote dilution 

or vote discrimination claim under Section 2. Section 2 does not 

assume the presence of racial bloc voting; plaintiffs must prove 

it. Thornburg, 92 L.Ed.2d at 44. Plaintiffs have proved a pat-

tern of racial bloc voting statewide but also specifically in - 

certain districts, namely the 5th, 7th, 9th, 11th, and 14th Chan-

cery Court Districts, the 4th, 7th, 11th and 16th Circuit Court 

Districts, and Hinds County Court District. 

39 

AO 72A 
(Rev. 8/82) 



Although the Court in Thornburg recognized that the degree 

of racial bloc voting that is cognizable as an element of a Sec-

tion 2 vote dilution claim will vary from district to district 

according to a variety of factual circumstances, the Court did 

announce general principles for legally significant racial bloc 

voting. The purpose of examining the existence of racially po-

larized voting is two-fold: to ascertain whether minority group 

members constitute a politically cohesive unit and to determine 

whether whites vote sufficiently as a bloc usually to defeat the 

minority's preferred candidates. Thornburg, 92 L.Ed.2d at 50. In 

general, a white bloc vote that normally will defeat the combined 

strength of minority support plus white "cross-over" votes rises 

to the level of legally significant white bloc voting. Id. A 

showing that a significant number of minority group members usu-

ally vote for the same candidates also amounts to racial bloc 

voting. Id. 

Although it varies from district to district, the evidence 

in this case establishes legally significant racial bloc voting. 

Based on the evidence presented, this Court concludes that the 

State of Mississippi, and especially the specified districts, 

experience racially polarized voting which rises to the level of 

legal significance under Section 2 of the Voting Rights Act. 

13. As to the consideration that any "unusually large elec-

tion districts, majority vote requirements, anti-single-shot 

provisions, or other voting practices" may enhance the opportu-

nity for discrimination, this Court has found that the judicial 

40 

AO 72A 
(Rev. 8/82) 



districts are not unusually large for their purpose of equalizing 

case loads and that there is a valid policy for the limitation on 

the number of districts into which the State is divided. The 

state does not have anti-single-shot voting laws. The majority 

vote requirement is not a strongly probative factor since evi-

dence has shown that many black candidates choose to run as inde-

pendents rather than as party candidates and there is no majority 

vote requirement in the general election. Furthermore, majority 

vote requirements and a post system are not per se discriminatory 

provisions. 

14. A "slatina process" is not a relative factor in this 

case because no proof was presented of any type of candidate 

slating process. 

15. The proof established that minority members still bear 

the effects of past discrimination. There was substantial proof 

of socio-economic disparities between black and white citizens of 

Mississippi. This disparity at times hinders the minority's 

ability to participate effectively in the political process. 

16. Although the proof established one or two extreme cases 

of racial appeals in political campaians, the Court did not find 

this to be-pervasive throughout all districts. Therefore, this 

factor is not probative in this action. 

17. Members of the minority croup have been elected to many 

public offices as shown in the Table under Findings of Fact Para-

graph 12 and Exhibit P-52, yet none have been elected to the 

41 

AO 72A 
(Rev. 8/82) 



judgeships in question here in the twentieth century. Those 

blacks who have served as state court judges have done so through 

appointment and election as incumbents. 

18. There is no .significant lack of responsiveness on the 

part of the elected judiciary of Mississippi. 

19. This Court has determined that the policy of post sys-

tem elections in multi-judge chancery, circuit and county court 

judicial districts is tenuous. 

20. Though most of these factors apply to all judicial 

districts statewide, the Court examines the totality of the cir-

cumstances to find other factors dealing with the "functional" 

view of the political process. 

a. Blacks constitute 35% of the population of Missis-

sippi, but constitute only 3.7% of the lawyers in Missis-

sippi: 220 of the 5,900 lawyers in Mississippi are black. 

Only approximately 150 of the black lawyers in the state 

have the statutory requirements to be elected as a judge, 

amounting to 2.5% of all lawyers. This is not a controlling 

factor, but a factor the Court has noted. 

b. Testimony by witnesses established that plaintiffs 

would like to see at least 10% to 30% of the judicial posi-

tions filled by blacks. Section 2(b) clearly provides, 

"[N]othino in this section establishes a right to have mem-

bers of a protected class elected in numbers equal to their 

proportion in the population." 42 U.S.C. §1973(b). Section 

2 does not grant a right to proportional representation; it 

42 

AO 72A 
(Rev. 8/82) 



merely permits equality of opportunity for participation. 

In many districts there are few statutorily qualified black 

lawyers who may seek to run for judicial election. 

21. A factor concerning the "functional" view of the po-

litical process which this Court finds most relevant is the com-

position of blacks in the challenged districts. The 

concentration of the black population in only a few areas by 

which the minority group could constitute a sufficiently large 

and geographically compact group in each district so that sin-

ale-member districts can be designed which would have substantial 

black populations and voting age majorities is an important fac-

tor to this Court. Thornburg established: 

Multimember districts and at-large election schemes, 
however, are not per se violative of minority voters' 
rights. . . . Minority voters who contend that the 
multimember form of districting violates §2 must prove 
that the use of a multimember electoral structure oper-
ates to minimize or cancel out their ability to elect 
their preferred candidates. See, e.a., S.Rep.16. 

While many or all of the factors . listed in the  
Senate Report may be relevant to a claim of vote dilu-
tion through submetaence in multimember districts,  
unless there is a coniunction of the following circum-
stances, the use of multimember districts generally  
will not impede the ability of minority voters to elect  
representatives of their choice. . . . These circum-
stances are necessary preconditions for multimember 
districts to operate to impair minority voters' ability 
to elect representatives of their choice for the fol-
lowing reasons. First, the minority group must be able 
to demonstrate that it is sufficiently large and geo-
graphically compact.to constitute a majority in a sin-
gle-member district. If it is not, as would be the 
case in a substantially integrated district, the multi-
member form of the district cannot be responsible for 
minority voters' inability to elect its candidates. . . 
Second, the minority group must be able to show that 
it is politically cohesive. If the minority group is 
not politically cohesive, it cannot be said that the 
selection of a multimember electoral structure thwarts 
distinctive minority group interests. . . . Third, the 

43 

AO 72A 
(Rev. 8/82) 



I 

minority must be able to demonstrate that the white 
majority votes sufficiently as a bloc to enable it - in 
the absence of special circumstances, such as the mi-
nority candidate running unopposed - usually to defeat 
the minority's preferred candidate. 

Thornburg, 92 L.Ed.2d at 45-47 (citations omitted) (emphasis 

added). 

Although evidence has established that throughout the state 

the minority group is politieally cohesive and the white majority 

votes sufficiently as a bloc to usually defeat the minority's 

preferred candidate, only in a few districts have the plaintiffs 

established that the minority group is sufficiently large and 

geographically compact in the district to constitute a majority 

in a single-member district. Many factors enumerated in the 

Senate Judiciary Committee Report are present in all districts, 

yet only in the 5th, 7th, 9th and 11th Chancery Court Districts, 

in the 4th, 7th, and 11th Circuit Court Districts, and in Hinds 

County Court District, are these factors present in conjunction  

with the circumstances of a sufficiently large and geographically 

compact minority aroup,political cohesiveness of the minority 

group, and a white majority which votes as a block to defeat the 

minority's preferred candidate. See Thornburg, 92 L.Ed.2d at 

46-47. In these specified districts only have the plaintiffs 

established by a preponderance of the evidence a violation of 

Section 2 of the Voting Rights Act by which blacks have "less op-

portunity than other members of the electorate to participate in 

the political process and to elect representatives of their 

44 

\O 72A 
:Rev. 8/82) 



• 

choice." In none of the remaining districts do blacks consti-

tute a sufficiently large and geographically compact group so 

that the district could be divided into single-member sub-

districts of substantially equal population one of which would 

have a substantial black population and black voting age major-

ity. In those remaining districts the plaintiffs have failed to 

prove by a preponderance of the evidence that multi-member dis-

tricts and at-large election schemes violate their rights under 

Section 2 of the Voting Rights Act. 

22. Plaintiffs have argued in regard to those districts in 

which black majority single-member sub-districts cannot be drawn 

that this Court should design single-member districts to raise 

the black voter percentage by concentrating blacks as much as 

possible in order to better "influence" the outcome of the elec-

tions. The Supreme Court in Thornburg has announced: 

The reason that a minority group making such a 
challenge [a Section 2 challenge against the multi-
member form of the district] must show, as a threshold 
matter, that it is sufficiently large and geographi-
cally compact to constitute a majority in a single-
member district is this: Unless minority voters possess 
the potential to elect representatives in the absence 
of the challenged structure or practice, they cannot 
claim to have been injured by that structure or prac-
tice. 

Thornburg, 92 L.Ed.2d at 46 n.17. The Plaintiffs have presented 

no legal argument to support their challenge to the contrary of 

Thornburg, and the Court concludes that it is not well-taken. 

45 

NO 72A 
:Rev. 8/82) 



CONCLUSION  

Even though many factors apply to all judicial districts in 

Mississippi, under the totality of the circumstances the overrid-

ing factor which applies to only a few districts is the exis-

tence of a sufficiently large and geographically compact minority 

group which can constitute a majority .in a single-member dis-

trict. This Court concludes, therefore, the judicial districts 

in which the plaintiffs have established a Section 2 violation on 

the basis that minority group members have less opportunity than 

other members of the electorate to participate in the political 

process and to elect representatives of their choice are the 5th, 

7th, 9th, and 11th Chancery Court Districts, the 4th, 7th, and 

11th Circuit Court Districts and Hinds County Court District. The 

plaintiffs are entitled to appropriate relief from the violation 

in these specified districts. The Court further concludes that 

in spite of the findings of racial bloc voting and other factors 

regarding the remaining districts, especially the 14th Chancery 

Court District, the 9th and 16th Circuit Court Districts, and 

Harrison and Jackson County, there is no Section 2 violation as 

to those districts because blacks are not in such concentrations 

to constitute a sufficiently large and geographically compact 

group for which single-member districts of substantially equal 

population may be drawn. 

In accordance with these Findings of Fact and Conclusions of 

Law, the Court will proceed to hold a hearing on the proper reme-

dies to be implemented to correct the Section 2 violations 

46 

AO 72A 
(Rev. 8/82) 



regarding judicial elections in the 5th, 7th, 9th and 11th Chan-

cery Court Districts, the 4th, 7th, and 11th Circuit Court Dis-

tricts, and Hinds County Court District. The parties are 

instructed to develop alternative remedy plans for submission to 

this Court. The discussion of single-member districts in these 

Findings of Fact and Conclusions of Law does not preclude other 

remedies. 

The parties are ordered to attend a Scheduling Conference on 

Friday, April 24, 1987, at 10:00 A.M. in Chambers to assist the 

Court in reaching a schedule for presentation of alternative 

remedies. 

ORDERED this the day of April, 1987. 

TED STATES DISTRICT JUDGE 

ACH 

1,0 72A 
Rev. 8/82) 

47 



SOUTHERN DISTRICT OF MISSISSIPPI 

FILED 
IN THE UNITED STATES DISTRICT CO RT 

FOR THE SOUTHERN DISTRICT OF MISSI SIPPtUti 02 1986 
JACKSON DIVISION 

HENRY KIRKSEY, et al., 
on behalf of themselves 
and all others similarly 
situated, 

Plaintiffs, 

NATHAN P. ADAMS, JR. AND 
NAT W. BULLARD, 

Plaintiffs-Intervenors, 

aARENCE A. FIERCE, CLERK 

BY  E Furr 

V. CIVIL ACTION NO. J85-0960(B) 

WILLIAM A. ALLAIN, Governor of 
Mississippi, et al., 

, Defendants, 

ORDER  

- This civil action is presently before the court on 

the State Defendants' Motion to Dismiss. Having 

considered the motion, the supporting memorandum o and the 

Plaintiffs' Response to State Defendants' Motion to 

Dismiss and pursuant to the oral ruling announced by the 

court on the record at the beginning of the preliminary 

injunction hearing held in this action on May 27, 1986, 

the court finds that the motion should be granted in part 

and denied in part for the following reasons: 

Because the one-person, one-vote doctrine of the 

Equal Protection Clause of the Fourteenth Amendment to the 



United States Constitution does not apply to the election 

of state court judges, see, e.g., Wells v. Edwards, 347 F. 

Supp. 453, 454 (M.D. La. 1972) (three-judge court), aff'd  

mem., 409 U.S. 1095, 93 S. Ct. 904, 34 L. Ed. 2d 679 

(1973), the complaint fails to state a claim upon which 

relief can be granted to the extent that it asserts that 

the existing chancery court districts, circuit court 

districts, and county court districts in the State of 

Mississippi are malapportioned and that the resulting 

alleged malapportionment produces population deviations 

among the districts which tend to underrepresent black 

voters. 

In view of the April 3, 1986, order and the May 21, 

1986, memorandum opinion and order of the three-judge 

court in this action, the motion is without merit to the 

extent that it asserts that Section 2 of the Voting Rights 

Act of 1965, as amended in 1982, 42 U.S.C. S 1973, does 

not cover or apply to the election of state court judges.. 

Based upon the authority of the Fifth Circuit's 

decision in Voter Information Project, Inc. v. City of  

Baton Rouge, 612 F.2d 208, 212 (5th Cir. 1980), the motion 

is without merit to the extent that it asserts that 

Fourteenth and Fifteenth Amendment vote dilution analysis 

does not apply to the election of state court judges. 

For these reasons, it is 

ORDERED: 

-2-



1. That, pursuant to Fed. R. Civ. P. 12(b)(6), the 

State Defendants' Motion to Dismiss is hereby GRANTED IN 

PART and the plaintiffs' complaint is hereby finally 

DISMISSED WITH PREJUDICE IN PART to the extent that it 

asserts that the chancery court districts, circuit court 

districts, and county court districts in Mississippi are 

malapportioned in violation of the one-person, one-vote 

doctrine of the Equal Protection Clause of the Fourteenth 

Amendment to the United States Constitution and that the 

alleged malapportionment produces population deviations 

among the districts which tend to underrepresent black 

voters; and 

2. That the State -Defendants' Motion to Dismiss is 

hereby DENIED in all other respects. 

SO ORDERED, on this, the day of May, 1986. 

i/ William H. Barbour, Jr. 

UNITED STATES DISTRICT JUDGE 

APPROVED AS TO 

Att 

Attorney for aintiffs 

Stat Defendants 

4Z6-“ifdl..66(1 

Attorney for State Defendants 

-3-.