United States v. Blanding Reply Brief for the United States of America

    ( - ...._ 
t ·{ ,... ' ,' .- _, ' . " 1 / 

. L ~·:_._) 

-----

IN THE UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF COLUMBIA 

COUNTY COUNCIL OF SUMTER COUNTY, 
SOUTH CAROLINA, et al., 

Plaintiffs, 

v. 

UNITED STATES OF AMERICA, et al., 

Defendants, 

and 

LARRY BLANDING, et al., 

Defendant-Intervenors. 

) 
) 
) 
) 
) CIVIL ACTION NO. 82-0912 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) ___________________________________ ) 

REPLY BRIEF FOR THE UNITED STATES OF AMERICA 

STANLEY S. HARRIS 
United States Attorney 

WM. BRADFORD REYNOLDS 
Assistant Attorney General 

GERALD W. JONES 
PAUL F. HANCOCK 
J. GERALD HEBERT 
ROBERT N. KWAN 
THOMAS G. SNOW 
Attorneys 
Civil Rights Division 
Department of Justice 
lOth and Constitution Avenue, N.W. 
Washington, D. C. 20530 
(202) 724-6292 



TABLE OF CONTENTS 

Page 

I. RESPONSES TO PLAINTIFFS' STATEMENT OF FACTS 
PROPOSED TO BE PROVEN------------------------- 1 

II. STATEMENT REGARDING WITNESSES----------------- 52 

III. LEGAL ISSUES RAISED IN PLAINTIFFS' 
PRETRIAL BRIEF-------------------------------- 55 

TABLE OF AUTHORITIES 

Cases: 

Barton v. ~. 529 F.2d 189 (4th Cir. 1975)-­

Beer v. United States, 425 U.S. 130 (1976)---­

Bratcher v. Ashley, 245 S.C. 421, 141 S.E. 2d 
109 (1965)----------------------------------

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 
1982), aff'd, 51 U.S.L.W. 3546 (U.S. 
Jan. 24, 1983)------------------------------

City of Mobile v~ _Bolden, 446 U.S. 55 (1980)--

Ci§~s011~~S~~~~-~:-~~~==~-~=~==~:-~==-~:~: __ _ 

Ci(l9Sg)~~~=-~:-~~~==~-~=~==~:-~~~-~:~:_:~~---
Doran v. Robertson, 203 S.C. 434, 27 S.E. 2d 

714 (1943)----------------------------------

Morris v. Gressette, 432 U.S. 491 (1977)------

Rog~j~s1~.1~~~=~-~~-~:~:::~:-~~~:-~~:~: _____ _ 

South Carolina v. Katzenbach, 383 U.S. 301 
(1966)--------------------------------------

Stevenson v. West, C.A. No. 72-45 (D.S.C., 
April 7, 197ZY=-----------------------------

Texas Department of Communitt Affairs v. 
Burdine, 450 U.S. 248 (198 )----------------

43 

56 

31 

57 

55 

55 

55 

31 

8 

55 

8 

12 

55 



( 
I 

Cases (continued): Page 

Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252 
(1977)--------------------------------------- 55 

Washington v. Davis, 426 U.S. 229 (1976)------- 55 

Statutes and regulations: 

Voting Rights Act of 1965, 42 U.S.C. 1973 
et ~·= 

Section 2, 42 U.S.C. 1973------------------­
Section 5, 42 U.S.C. 1973c--~-~-------------

42 U.S.C. 1973c-------------------------------
42 u.s.c. 1973l(b)----------------------------

190l S.C. Acts No. 383, SS 1-2----------------
1908 S.C. Acts No. 463------------------------
1919 S.C. Acts No. 170-----------------------­
S.C. Code §§ 1916-1922 (1922)----------------­
S.C. Code S§ 7-9-10 through 7-9-100 (1976)----
28 C.F.R. Part 16, Subpart B------------------
28 C.F.R. 16.21-------------------------------

28 C.F.R. 16.23(c)----------------------------

Miscellaneous: 

H.R. Rep. No. 91-397, 9lst Cong., 2d Sess. 
(1970), reprinted in 1970 U.S. Code Cong. 
& Adm. News 3279-80--------------------------

Joint Views of 12 Members of the [Senate] 
Judiciary Committee Relating to the Voting 
Rights Act of 1965, 89th Cong., lst Sess. 
(1965), reprinted in 1965 U.S. Code Cong. 
& Adm. News 2542-54-------------------------­

S. Rep. No. 94-295, 94th Cong., 1st Sess. 
(1975)---------------------------------------

s. Rep. No. 97-417, 97th Cong., 2d Sess. 

16, 
10 

9 
56 

6 
6 
6 
6 
17 
10 
10 

10 

8 

8 

8 

57 

(1982)--------------------------------------- 8, 16 

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r:::". :·. ' 1 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

COUNTY COUNCIL OF SUMTER 
COUNTY, SOUTH CAROLINA, et al., 

Plaintiffs, 

v. 

UNITED STATES OF AMERICA, et al., 

Defendants, 

and 

LARRY BLANDING, et al., 

Defendants-Intervenors. 

) 
) 
) 
) 
) 

- )· 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) ______________________________ ) 

Civil Action No. 82-0912 

REPLY BRIEF FOR THE UNITED STATES OF AMERICA 

!he United States ef Amerisa respectfully submits 

this brief in reply to plaintiffs' pre-trial brief. 

I. RESPONSES TO PLAINTIFFS' STATEMENT OF FACTS PROPOSED 
TO BE PROVEN ~/ 

1. -Denied. While on its face Act No. 371 purports to 

list the overall purposes of Act No. 371, the Act does not 

state at all why an at-large election method was adopted 

in 1967. 

The burden on plaintiffs in this case is not merely to 

show why the County changed from an appointive to an elective 

system, rather plaintiffs must demonstrate that the 

decision to enact ~ at-large election system in 1967 was 

free of a racially discriminatory purpose and effect. 

*I Plaintiffs' Statement of Facts Proposed to be Proven 
begins on page 13 of Plaintiffs' Pretrial Brief. 



~ ' : 

The evidence shows that, one month before the South 

Carolina Legislature enacted the at-large election system, 

the_ Sumter County Board of Commissioners and County 

Legislative Delegation met jointly to discuss "revising 

the present form of County Government." (Def. Ex. No. 

Minutes of May 8, 1967). At that meeting, "[t]here was 

much discussion as to the type of government, size, and 

means of selection. Several plans were suggested as a 

basis for study." (Emphasis added) (Ibid.). Plaintiffs 

have not cited to any evidence why it chose an at-large 

election system over some other "means of selection" 

(~., single-member districts or a "mixed" plan). ~/ 

While former Sumter County Commissioner Hodge claimed 

that he may have spoken to black leaders in 1967 about 

the change to an elective system (Hodge Testimony at 

26-30), one black leader (Robert Palmer) testified that 

~/ Former County Commissioner Hodge, who served on the 
Sumter County Commission from 1955 to 1976 (Hodge Testimony 
at 3-4), said it was "[p]ossible but not probable" that 
there was a discussion about the various types of methods 
of election at the May 1967 meeting. (Hodge Testimony at 44). 
Mr. Hodge testified that he appeared before the Lions 
Club, the Kiwanis Club and the Rotary in his efforts to 
drum up support for an elective system. (Hodge Testimony 
at 21). Historically, all three of those civic or~anizations 
have been all-white. To this day they are racially 
segregated. (Bowen Testimony at 4-5; Kirven Testimony at 4, 
7-28; Weeks Testimony at 21-22; Keels Testimony at 35). 
No service clubs in the black community were visited by 
Hodge. (Hodge Testimony at 27). 

- 2 -



neither he nor any other black leader was contacted by 

any Sumter County officials to discuss the county commission 

becoming an elected body. (R. Palmer Testimony at 22). 

Former County Commissioner Hodge admitted that in 1967 he 

had not discussed with any black person alternative or 

available methods of election (i.e., at-large, districts, 

etc.). (Hodge Testimony at 30). According to Mr. Hodge, while 

he and other public officials in Sumter County were working 

toward getting an elected county commission in 1967, no 

person from the entire black community in Sumter County was 

included in that effort. (Hodge Testimony at 27). 

Furthermore, Dr. McCrary is expected to testify that 

the change from an appointive to elective system was motivated 

by a racially discriminatory purpose. (McCrary Trial Testimony) " 

2. Denied. While both former State Senator Richardson 

and former State Representative Cuttino stated that the 

overall purposes of Act No. 371 were those set forth in the 

statute itself, neither witness said what the purposes 

were behind the enactment of an at-large election sche~e. 

Mr. Cuttino recalled that there were "public" meetings 

held between the County Legislative Delegation and the 

County Commissioners prior to the enactment of the electoral 

system in June 1967 (Cuttino Testimony at 59-60), but he 

conceded that there was never any discussion of the 

at-large election system or a district-type system with 

any black leaders in 1967 (Cuttino Testimony at 59). 

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In fact, Cuttino recalled that no black person was 

even invited to attend the meetings of the County Commission 

and County Legislative Delegation held in the months 

preceding enactment of the at-large election system. 

(Cuttino Deposition at 59-60). 

Furthermore, Dr. McCrary is expected to testify that 

the change from an appointive to elective system was motivated 

by a racially discriminatory purpose. (McCrary Trial Testimony) o 

3. Denied. There is no evidence that an at-large 

election system in 1967 was non-controversial. The voting 

strength of newly enfranchised black voters was an issue 

of statewide attention in 1967. (Kousser and McCrary Trial 

Testimonies). Moreover, the fact that black voters in 

the City of Sumter had gained political control over the 

small predominantly black voting precincts in the late 

1950's or early 1960's is evidence that County officials 

knew that blacks could win district-type elections. 

(Finney Testimony at 7-8; Kousser and McCrary Trial 

Testimonies). Although the plaintiffs contend that "at-large 

elections would permit the people to choose those with the 

responsibility of governing the county," in actuality white 

people control elections at-large. 

4. Denied. There is no evidence that black persons 

were informed about the 1967 change to at-large elections until 

after the passage of Act No. 371. There is evidence that blacks 

- 4 -



were not informed or consulted about either the change to 

an elective system or the type of election system that 

would be used. (R. Palmer Testimony at 22; Finney Testimony 

at 45-46; Hodge Testimony at 27, 30). 

5. Denied. In 1967, the racial implications of how 

elected officials were to be selected (from districts, at-large, 

etc.) was a matter of common knowledge in South Carolina 

and in Sumter County. (Finney, Kousser and McCrary Trial 

Testimonies). The only evidence that no member of Sumter 

County's black community opposed the enactment of an at-"targe 

election system is the evidence that black persons were 

not included in the decision to establish that election 

structure. (R. Palmer Testimony at 22; Hodge Testimony 
I 

at 27, 30; Richardson Testimony at 27-29; Rivers Testimony 

at 12-13; Finney Testimony at 45-46 and Finney Trial TestiMony). 

6. Denied. Single-member districts have been used 

to select the governing body of Sumter County during a portion 

of its history. (McCrary Trial Testimony). From at least 

1901 to 1908, Sumter County's governing body was selected 

pursuant to a statewide law, which provided for the popular 

election of a county supervisor and the appointment of two 

commissioners by the Governor, upon the recommendation of 

the county's legislative delegation (1901 S.C. Acts, 

No. 383, SSl-2). In 1908 the South Carolina General 

Assembly excepted Sumter County from the statewide law for 

the selection of county governing bodies, by providing 

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t.~ (. ';J 

that four county commissioners were "to be selected from 

different portions of the county." (1908 S.C. Acts 

463). The county supervisor continued to run for 

election as before (S.C. Acts, 1908, Act No. 463). This 

system of district representation remained in effect 

in Sumter County untll 1919, when the -General Assembly 

gave the Sumter County Board of Commissioners the 

authority to appoint a county supervisor for an indeter­

minate term, upon the expiration of the term of office to 

which the incumbent county supervisor had been elected 

(1919 S.C. Acts No. 170). In 1921 the General 

Assembly eliminated district representation by giving 

the Governor, upon recommendation of the county legislative 

delegation, authority to appoint seven commissioners, 

who continued to appoint a county supervisor (S.C. Code 

§§1916-1922). This system remained in place until the 

passage of Act No. 371 in 1967. 

7. We lack sufficient information and thus we are 

unable either to admit or to deny. The fact is that the 

County Attorney in 1967 was aware of the preclearance require­

ments (see Item, April 4, 1967). Commissioner Rivers 

also admitted that the Sumter County Commission was aware 

of the requirements of the Voting Rights Act in 1967 

(Rivers Testimony at 20), but he offered no explanation 

of why the at-large election system was not submitted by 

the county for Section 5 preclearance. 

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8. Denied. Although we lack sufficient information 

about state-wide compliance, the evidence indicates that 

Sumter County (whose actions are at issue in this lawsuit) 

does not have a "history of good faith compliance with Section 

. 5" since the beginning of Section 5 coverage. The at-large 

electoral system at issue in this case was enacted in 1967 

and was not submitted for Section 5 preclearance until 1976. 

(Plaintiffs' Amended Complaint at •15). Moreover, there 

have been three dozen polling place changes in Sumter 

County over the last twelve years and only one has been 

submitted for Section 5 preclearance. In addition, the 

"paper towns" statute (Act No. 1229 of 1968) was never 

submitted for Section 5 preclearance. In 1966, 

the Sumter County Commission, in conjunction with other 

local public officials, decided to move the location of 

the Board of Voter Registration. (Def. Ex. No. ___ , 

Minutes of August 2, 1966). The 1966 change in location 

for the Voter Registration Board was also never submitted for 

Section 5 preclearance. Finally, we note that in extending 

the Voting Rights Act in 1970, 1975 and 1982, Congress 

cited South Carolina's non-compliance with the Act and 

continued unequal minority political access as reasons 

for extending the Act's special provisions. (Joint Views 

of 12 Members of the [Senate] Judiciary Committee Relating 

- 7 -



to the Voting Rights Act of 1965, 89th Cong., 1st Sess. 

(1965), reprinted in 1965 U.S. Code Cong. & Adm. News 

2542-54; H. R. Rep. No. 91-397, 9lst Cong., 2d Sess. (1970), 
' 

reprinted in 1970 U.S. Code Cong. & Adm. News 3279-80; S. 

Rep. No. 94-295, 94th Cong., 1st Sess. 13-17 (1975); S. 

Rep. No. 97-417, 97th Cong., 2d Sess. 14 (1982); see also, 

South Carolina v. Katzenbach, 383 U.S. 301 (1966)). 

9. Objection. The United States objects to this 

evidence as immaterial to the issue before the Court. To 

determine whether Sumter County's change to at-lar~e 

elections would have been precleared if submitted to the 

Attorney General for Section 5 review "in the 1960's," 

would require this Court to review what the Department of 

Justice might have done "in the 1960's"; clearly. this 

Court lacks jurisdiction to conduct that review. Morris 

v. Gressette, 432 U.S. 491 (1977). In any event, the 

issue before this Court is whether the change to at-large 

elections should receive Section 5 preclearance in 1983, 

not "in the 1960's," and paragraph 9 is not in any way 

relevant to a determination of that issue. Furthermore, 

whether or not preclearance was obtained by other jurisdictions 

for ~anges they submitted is irrelevant to the issues in this 

case since Sumter County must establish its claims for pre-

clearance in the context of its circumstances. 

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10. Denied. The factual assertion in this paragraph, 

that Act No. 1339 (1968) was submitted for Section 5 pre-

clearance, has already been presented to this Court and 

this Court has found that the letter submitting Act No. 1339, 

"did not request preclearance nor mention any voting 

changes." (Memorandum on Summary Judgment, January 24, 

1 9 83 at 13-14) • 

11. Objection. The United States objects to this 

evidence as immaterial to the issue before this Court. 

As mentioned previously, this Court has held that the 

"Attorney General's silence about Act No. 1339 of 1968" 

did not carry with it preclearance of any voting changes 

including at-large elections (Memorandum on Summary Judgment 

January 24, 1983 at 13•14), and the proposed evidence 

is not in any way relevant to the question of whether the 

change to at-large elections "does not have the purpose 

and will not have the effect of denying or abridging the 

right to vote on account of race ••• " (42 U.S.C. 1973c). 

Additionally, if the "pre-1971 Section 5 submission 

requirements and preclearance procedures at the Department 

of Justice" is somehow deemed to be relevant to this 

lawsuit, the proposed witness lacks the personal knowledge 

to provide the evidence. Katherine Butler, is a former 

attorney in the Voting Section, Civil Rights Division, 

Department of Justice. Departmental records show that 

Ms. Butler worked at the Department of Justice from 1975 

to 1978. , 

- 9 -



Thus, we are at a loss to understand how she could have 

personal knowledge about the pre-1971 Section 5 submission 

requirements. 

If the proposed testimony is deemed relevant, we 

believe that the Court should require the plaintiffs to 

follow the applicable regulations of the Department of 

Justice which govern the production or disclosure of 

· official information. The provisions of 28 C.F.R. Part 16, 

Subpart B, govern 

the production or disclosure of any 
material contained in the files of the 
Department, any information relating 
to material contained in the files 
of the Department, or an& information 
acquired bl any person w ile such person 
was an emp oyee of the Detartment as a 
part of the Terformance o that person's 
off1c1al dut es or because of that person's 
official status. 

(28 C.F.R. 16.21 (emphasis added)). 

As a first step in complying with the regulations 

plaintiffs are required to submit to the Department "an 

affidavit, or, if that is not feasible, a statement 

••• setting forth a summary of the testimony sought ••• " 

(28 C.F.R. 16.23(c)); the two sentences of paragraph 

11 of plaintiffs' pretrial brief do not constitute 

compliance with this provision. Requiring the plaintiffs 

to comply with the regulations would help assure that the 

Court receives an accurate depiction of records of the 

Department of Justice and may result in a stipulation of 

fact rather than controverted testimony. Once again, 

however, we believe that the described factual information 

is not relevant to this lawsuit. 

- 1n -



12. Denied. Section 5 of the Voting Rights Act 

prohibits the state and all of its political subunits 

from implementing voting changes without preclearance. 

The county cannot relieve itself of its obligati~n to 

comply with the Act by saying it is the state's 

responsibility to make the required submission. While 

many of the pre-1976 voting changes in South Carolina 

that were submitted for Section 5 preclearance were 

submitted by the South Carolina Attorney General, many 

other voting changes were submitted by local officials. 

(Def. Ex. No. , pre-1976 Letters of Submission from 

localities in South Carolina). Prior to 1976, more than 

half of the South Carolina counties made Section 5 sub­

missions on their own. (Ibid.). 

1-3. Denied. The referendum was proposed only after the 

Attorney General had objected to at-large elections. The 

referendum was held in order to provide a basis for seeking 

a withdrawal of the objection by the Attorney General. Given 

the racial bloc voting which exists in Sumter County, and the 

racial polarization on the issue of an appropriate election 

method, the result of the referendum was predictable. (Kousser 

and McCrary Trial Testimonies). The county officials made 

certain that all citizens understood the racial consequences 

of the referendum. During the weeks preceding the holding 

of the 1978 referendum, the white members of the Sumter 

- 11 -



I -

County Council publicly stated their endorsement of at-

large elections. (See,~·· Item, January 18, and July 6 

and 8, 1978). By that time, it was a well-known fact 

that a vote for a single-member district election system 

over at~large would result in an increase in black represen­

tation on County Council. ~/ (Blanding and Miles Trial 

Testimonies; see also Item, Novemb~r 4 and 6, 1978). The 

County Council took out a full-page ad on the eve of the 

referendum election warning the electorate that single-member 

geographical districting might "divide elections and 

council decisions along racial lines." (Item, November 

3, 1978). The ad was racially biased. (James, Rembert, 

Blanding and Miles Trial Testimonies; Weeks Testimony at 

42-44. There is ample evidence that the actions of the 

Sumter County Council during the 1978 referendum camoaign 

and in the months preced:Ciig the November 1978 referendum 

elections were motivated by a racially discriminatory 

purpose to maintain at-large elections. (Blanding, 

James, Rembert and Kousser Trial Testimonies). 

~/ Four years earlier the South Carolina House was 
reapportioned as a result of federal court order into 
single-member districts. See Stevenson v. West, C. A. 
No. 72-45 (D. S.C., April 7, 1972). Single-member districts 
for House members in South Carolina has resulted in an 
increase in the number of black persons serving in the 
South Carolina Legislature. (Blanding Trial Testimony). 

- 12 -



0 
( 

14. The United States cannot admit or deny this 

proposed fact, unless the plaintiffs provide the names of 

the counties, a description of the legislation pursuant to 

which at-large elections were implemented and the date 

bf implementation. See also Response to Paragraph 9, above. 

15. Denied in part. Prior to 1967, the Legislative 

Delegation did not have the "exclusive power" in regard to 

the subject matters set forth in paragraph 15. Prior to 

1967, the Sumter County Board of Commissioners had the 

power to appoint persons to boards and commissions, and 

in fact, exercised that authority. (~., Def. Ex. No. 

Minutes of Meetings of Sumter County Board of Commissioners, 

July 16, 1963). According to the minutes of the Sumter 

County Board of Commissioners, the Board of Commissioners also 

took actions between 1963 and 1967 in the following areas: 

set salaries for county employees (id., at August 20, 

1963); authorized a county representative (~., county 

engineer) to enter into a contract (id., at August 20, 1963); 

authorized the County to enter into an indenture (id., at 

September 21, 1965). 

- 13 -



16. Denied. At least some of the powers listed in 

paragraph 15 (~., control appointments, authorize the 

county to enter contracts, authorize bonded indebtedness) 

were exercised by the Sumter County Commission prior to 

1967. (See •15 above). 

17. Admitted. 

18. Admitted. 

19 and 20. Denied. The evidence to be presented to 

the Court will demonstrate that black citizens of Sumter 

County would have more representation on the County ~overning 

body if the appointive system were in place today, than they 

enjoy under the at-large election system. (Burns Testimony 

at 85-90; Finney Testimony at 42-43; Fleming Testimony at 

34-36, 45-46; Gray Testimony at 38-39; Arthur Testimony at 

22-23; Blanding Trial Testimony). 

This Court has determined previously that the 

adoption of the at-large method of electing the county 

council is a change· affecting voting within the meanin~ 

of Section 5. (Memorandum on Summary Judgment, January 24, 

1983 at 6-12). 

- 14 -



, 

21. Denied in part. It is true that black persons 

have run for office and voted in Sumter County since 

1967. The at-large election structure, however, has 

served to dilute the voting strength of the black community. 

Since 1967, in at-large . elections held for Sumter County 

Council, black voters, despite qualified black candidates 

and relatively equal turnout among black and white voters, 

have been unable to elect candidates of their choice to 

the Sumter County Council. (Weeks Testimony at 26; 

Jefferson Testimony at 38; Gray Testimony at 36-38; 

Fleming Testimony at 23-25; and Finney Testimony at 

39-41). 

22 and 23. Admitted in part, Denied in part. 

All of the . persons whose testimonies are cited in support 

of this proposed fact testified merely that they registered 

to vote and voted in primary elections in Sumter County. 

The Voting Rights Act was designed not merely to 

remove formal barriers to registration and casting ballots; 

rather the Act, particularly as amended in 1982, was desi~ned 

to allow minority voters a fair opportunity to participate 

in the political process and to elect representatives 

- 15 -



I~ 

of their choice. Section 2 of the Act "is aimed at discrimination 

which takes the form of dilution, as well as outright denial of 

the right to register or to vote." S. Rep. No. 97-417, 97th 

Cong •• 2d Sess. 30 n. 120 (1982). The evidence will also 

. demonstrate that, although black· persons cast ballots in primary 

elections, they have been unable, because of the at-large electio:1 

structure and the existence of racially polarized voting, to 

elect candidates of their choice in the Democratic Party's 

nominating process. 

24. Denied. All of the persons whose testimonies are 

cited in support of this proposed fact testified that they had 

registered to vote. Moreover, as noted in our pretrial brief, 

the voter registration office in Sumter County has not been free 

of racially discriminatory activities. (Defendants' Pre-trial 

Brief at 57-61). Until 1978, no black person was employed there 

and the white woman in charge of that office until 1978 treated 

prospective black voters differently than whites. (Grant 

Testimony at 12-13; Weeks Testimony at 34-35). On one occasion 

in 1976, the white woman in charge of voter registration instruc·c d 

a deputy registrar not to register any more blacks. (Young 

Testimony at 23; Weeks Testimony at 35-35). 

25. Denied in part and Admitted in part. It is denied 

that a greater proportion of blacks are registered to vote than 

whites. As of 1982, blacks constitute about 42% of the registered 

- 16 -



r 
{ 

voters. It is admitted that a greater percentage of the black 

voting age population (53.5%) is registered to vote than the 

percentage of white voting age population (52.7%) that is 

registered. (Def. Ex. No. 1980 Census and Voter 

Registration Statistics). 

26. Admitted. 

27. Denied in part and Admitted in part. As a result 

of the at-large election structure, black citizens have less 

opportunity to participate in the political process and to 

elect representatives of their choice. It is admitted that 

the turnout rate among black voters in some elections is 

approximately the same as the turnout rate among white 

voters in some elections. 

28. Admitted. 

29. Admitted. 

30. The first sentence is denied since the evidence will 

demonstrate that the at-large election structure serves to dilute 

the voting strength of the black community; black voters do 

not participate on an equal basis with white voters. The 

remaining allegations in this paragraph are admitted. 

The representation of black citizens in the county and 

state Democratic Party Organization is primarily due to 

- 17 -



0 
! 

the fact that local party officials are elected from 

precincts, essentially a district election system, and 

many precincts, particularly in rural areas, are predominantly 

black, thus affording the minority community an opportunity 

to be fairly represented in party office. (Blanding and 

Miles Trial Testimonies; S.C. Code SS7-9-10 through 

7-9-100 (1976)). 

31. Admitted. 

32. Denied. Black persons who have been politically 

active in Sumter County testified that, for a variety of 

reasons, they are unable to campaign in the white community. 

(Burns Testimony at 26-28; Fleming Testimony at 23; 

Williams Testimony at 20-21; Sanders Testimony at 17; 

Jefferson Testimony at 38; McCrary Testimony at 16; 

R. Palmer Testimony at 14; Gray Testimony at 16-17). For 

the most part these black persons, all of whom have been 

candidates in elections in Sumter County, testified that 

they did not campaign in white areas because by custom 

they have not been welcomed there. (Ibid.). Most of 

these black candidates testified that it was futile to 

campaign in the white community because white voters 

generally do not support black candidates. See (cites). 

White candidates, on the other hand, have campaigned 

freely in the black community. (Morris Testimony at 8; 

Hodge Testimony at 53-54; Rivers Testimony at 22-24; 

Bowen Testimony at 7-8.) 

- 18 -



33. Admitted in part. It is quite true that most 

white candidates campaign in the black community (Morris 

Testimony at 8, Rivers Testimony at 22-24. Moreover, in 

some situations, such as when two white candidates are 

opposing each other, white candidates do receive the 

support of black voters. (Kousser Trial Testimony) (Def. 

Ex. No. , Sumter County Election Returns). In races 

between black and white candidates, black voters have 

supported the black candidates and white voters have 

supported the white candidates. (Fleming Testimony at 

24-25; Burns Testimony at 17-23; Gray Testimony at 16-17). 

Also, in races involving only white candidates, "white 

candidates associated with black interests are facing an 

increasingly solid white opposition." (Oef. Ex. No. _, 

Attachment B to Kouss~r Affidavit at 20). 

34. Denied in part. When a black candidate faces a 

white candidate the black candidate usually loses because 

of the presence of racial bloc voting and because of the 

fact that the county is majority white. (Kousser Trial 

Testimony; Sanders Testimony at 18-20; Fleming Testimony 

at 23-25; Burns Testimony at 19; Gray Testimony at 16-17; 

McCrary Testimony at 16). In races in which no black 

candidate has run, black voters have sometimes supported 

the winning candidate and other times supported the losing 

candidate (Kousser Trial Testimony). 

- 19 -



35. Denied. The testimony cited in support of 

this proposed fact simply does not support the statement 

that black candidates have a realistic opportunity to be 

elected at-large in Sumter County. The testimony of 

Willie Jefferson was that he ran for and was elected to 

the Mayesville Town Council. (Jefferson Testimony at 7-

8). According to Mr. Jefferson, the e~ection system for 

the Mayesville Town Council is at-large with a plurality 

needed for election; the Town of Mayesville is 70% black. 

(1£. at 10). While Mr. Jefferson testified he did get 

the votes of both black and white residents of Mayesville 

(1£. at 37), it seems clear that there is a substantial 

difference between a black candidate running in a town which 

is 70% black, and a black candidate running in a county 

which is majority white. Also, Mr. Jefferson drew a 

sharp comparison between running at-large in the ·· small 

town of Mayesville and running at-large in Sumter County. 

(1£. at 37-38). Mr. Jefferson put it this way: 

Q. How would you compare running at-large in the 
Town of Mayesville with running at-large in 
the County? 

A. Well, Mayesville being one square mile with a 
radius of a half mile, you can, you know, almost 
holler across town and everybody will know you. 
But, you know, with the size of the county, it 
is--would be very difficult to be known that 
widely, you know, unless you traveled extensively 
and so forth. And that's basically--! would compare 
it because the area is just so small. It has 

- 20 -



' · 

never extended itself since 1896 when it was 
drawn out. 

Q. Do you know nearly all of the voters in the 
Town of Mayesville? 

A. Yeah. 

Q. And do you think that that factor has anything 
to do with your ability to attract votes from 
both the black and white community? 

A. It could well be. 

Q. Do you think you could be able to attract white 
votes throughout the county if you ran 
county-wide at large? 

A. That's hard to say, depending on--you would 
definitely have to have a lot of help from 
a lot of people. And I'm an optimist. I feel 
anything is possible if you work hard enough 
at it. 

Q. You would hope to be able to gain white votes. 

A. It would be diff1cult to some extent because 
it's very difficult to become known, you know, 
because you really don't--can't get the exposure, 
not yet. You know, it's better than it used to 
be, but it's not that good yet. 

Q. When you say "exposure," you mean a black 
candidate being able to expose his views and 
himself as a candidate to the white voters in 
the white community? 

A. That's true. You just can't get the kind of 
forum. Basically the black community has always 
been open, and you know they receive white 
candidates with open arms. But it's difficult 
to get that same response, being candidly in 
not being--it's improving though. 

- 21 -



Judge Ernest Finney, the other witness whose 

testimony is relied upon in plaintiffs' Proposed Fact No. 35 

also noted the difficulty that black voters have in 

electing a candidate of their choice under an at-large 

election plan where a majority of the voters are white. 

(Finney Testimony at 39). Judge Finney observed that 

Sumter County is a big county, "to run at-large takes a 

lot of time. You have a lot of territory to cover." 

(Id. at 39). ~/ In comparing the at-large election 

system to a districting system, Judge Finney said that he 

favors single member districts because "it affords not 

only black citizens but other small interests in the 

community an opportunity to elect people to articulate 

their positions." (Id. at 39). 

36. Admitted. 

37. Admitted. It is admitted that a black candidate 

(Ernest Finney) was elected to the South Carolina House 

. of Representatives in 1972. (Finney Testimony at 17). 

~/ Judge Finney said that "from Shiloh to Rembert [from 
one end of the county to another] is roughly 40 miles, 
and to do it [campaign] takes a lot of time. "(Finney 
Testimony at 39). Finney also stated that the size and 
shape of the county make running at-large more difficult 
(than a single-member district plan): "Geographically, 
the county may not be very large but they've got that 
little point that sticks out down there that includes the 
Shiloh area, which makes it extremelv cumbersome to 
travel." (Ibid.). -

- 22 -



In 1966, Ernest Finney ran for a seat in the South 

Carolina House of Representatives and he lost. The election 

was at-large. (Finney Testimony at 4-9). In 1968, Ernest Finney 

ran for the Sumter County Commission in an at-large contest, 

and again he lost. · (Id. at 16). In 1972, · Finney ran for the 

South Carolina House of Representatives, and in that year, he 

was one of four persons elected at-large from Sumter County. 

(Id. at 17). Finney attributed his 1972 success to the repeal 

of the full-slate requirement under state law and the use of 

single-shot voting by the black community. (Finney Testimony 

at 18, 48-50). It is estimated that Ernest Finney received 

only about 3% of the vote cast by white voters in the 1972 

Democratic primary. (Def. Ex. No. , Attachment B to 

Kousser Declaration). Finney was again elected to the 

South Carolina House in 1974, but, by that time, the South 

Carolina House had been reapportioned into -single-member 

districts. (Finney Trial Testimony). The members of the 

South Carolina House have been elected from single-member 

districts since 1974. As a result of the reapportionment 

of the South Carolina House, the racial composition of 

the single-member district that Finney was elected from 

in 1974 was more than 60% black. (Finney Testimony at 

18). Since that 1974 election, Larry Blanding, who is also 

black, has been elected to the House from that single-member 

district. (Ibid.). 

- 23 -



38. Denied in part. James Solomon was not elected to the 

School Board in 1968. In 1969, Solomon ran in School District 

No. 17 against two white opponents. (Def. Ex. No. __ , Election 

Returns). Solomon finished last, receiving an estimated 0% of 

the white vote and an estimated 56% of the black vote. (Def. 

Ex. No. __ , Attachment C to Kousser Affidavit). ~/ In June 

1970, Solomon was elected to the School Board in District No. 17 

(Def. Ex. No. , Item, June 17, 1970), and received an 

estimated 6% of the white vote. (Def. Ex. No. _, Attachment C 

to Kousser Affidavit). 

With regard to the other five black citizens listed 

in paragraph 38, none of them was elected at-large in a county­

wide election. (Kousser Trial Testimony). The black 

candidates elected to School District Ne. 2 (Moses Williams 

in 1974, Naomi Sanders in 1980, and O.J. Nelson in 1974) 

were elected from single-member districts. (Williams 

Testimony at 11-15; Sanders Testimony at 6-8; Def Ex. No. __ , 

Election Returns). 

The three persons elected to School District No. 

17 (Solomon, Gray and Mallette) were not elected at-large 

from Sumter County but rather were elected at-large from 

School District No. 17, which is an area that includes 

*I Because of the then existing full-slate law, voters were 
required to vote for two of the three candidates (Def. Ex. No. 
Item, June 16, 1969). 

- 24 -

_, 



the City of Sumter and its environs. (DuBose Testimony 

at 25; Williams Testimony at 12). Due to the presence 

of three all-white private academies in Sumter County 

(Jefferson Testimony at 28), the racial composition of 

the student population in School District No. 17 is 55% 

black. (Def. Ex. No. __ , Statistics for 1980 for School 

District No. 17). School Distict No. 2 is over 60% black 

in its total pupil enrollment. (Ibid.). Consequently, 

election contests for school board races in Sumter County 

generate greater interest and higher turnout among black 

voters than white voters. (Williams Testimony at 17-19; 

Attachment to Kousser Declaration). For example, in 

one School Distriet 17 election contest in 1978, 2412 

persons turned out to vote, of whom 57% were black. 

(Def. Ex. No. , Voter turnout data by Race). 

39. Denied. Black voters do not have a realistic 

opportunity to elect candidates of their choice in at-large 

elections in Sumter County. (Hodge Testimony at 61; 

Barton Testimony at 69; Burns Testimony at 83; Finney 

Testimony at 39; Fleming Testimony at 23-25; Gray Testimony 

at 37-38; Jefferson Testimony at 37-38; Sanders Testimony 

at 18; Williams Testimony at 36-37; Blanding, James, 

Miles, Rembert, Finney and Kousser and McCrary Trial 

Testimonies). 

- 25 -



/":"\ 
I 
' 

In election contests involving black and white candidates 

running at-large in Sumter County black voters support black 

candidates and white voters support white candidates; since 

whites comprise a majority of the registered voters, white 

candidates normally win. In races in which black candidates 

have not run, black voters have sometimes supported the winnin~ 

candidate and sometimes supported the losing candidate. Of the 

twenty persons listed in paragraph 39, two are black and 

only two_ of the remaining eighteen whites had black 

opposition. ~/ The persons listed in paragraph 39, with 

the exception of black candidates Ernest Finney in 1972 

and J. Phillip Rembert in 1974, were candidates who won 

elective office and received substantial white support. 

(Kouss~r Trial Testimeny). To a significant extent, it 

was the degree of white support these candidates received 

that accounted for their receiving a majority of the 

votes cast in Sumter County. (Ibid.). Moreover, most · 

(all but six) of the candidates listed in paragraph 39 of 

plaintiffs' proposed facts ran throughout the State of 

South Carolina (~ Jimmy Carter, Governor Riley, Lt. 

Governor Harvey, Lt. Governor Stevenson, etc.) and did 

not run at-large from Sumter County. 

*I In the 1972 contest for the State House, one black 
candidate (Ernest Finney) ran county-wide for one of 
four seats. There were seven other candidates in the 
race, all of whom were white. Aycock and Goodman were 
among the whites who ran, and thus in a sense had Finney 
as black opposition. 

- 26 -



40. Admitted in part. A small fire station was 

constructed in the southern extreme part of South Sumter 

in 1977. Although the South Sumter area is virtually 

all-black, the fire station is located in one of the few 

white residential "pockets," and was constructed with 

funds provided by both the City of Sumter government and 

Sumter County. (Barton Testimony at 67-68). Also, 

federal funds, as opposed to county or local funds, were 

utilized in part to · construct the fire station. (Rivers 

Testimony at 39). 

The South Sumter area was described recently by one 

federal (HUD) official as "the largest single concentration[ ] 

of blight anywhere in the state." (Griffith Testimony at 43). 

As early as 1968, Sumter County recognized that "[f]ires tend 

to occurmore frequently in blighted areas" (Def. Ex. No._, 

Neighborhood Analysis of 1968 at 22). A report on Sumter 

County's neighborhoods in 1968, nearly a decade before 

construction of the fire station in South Sumter stated: 

This neighborhood [South Sumter] has 
many serious problems. It has, by 
far, the greatest percenta~e of 
residence classified in poor 
condition. The reasons are: (1) 
twenty-eight per cent of the area's 
residences are adversely affected by 
adjacent commercial and/or industrial 
activities; (2) numerous houses are 
overcrowded and have inadequate yard 
space; (3) structural housing in­
adequacies are numerous, primarily 
because of poor original construction. 

- 27 -



In addition, environmental factors 
are less than desirable: a high 
proportion (51.9%) of streets are 
unpaved; there are inadequate 
recreational facilities; and public 
water and sewer utilities and other 
basic health facilities are in­
adequate. There is also inadequate 
storm drainage. The street pattern 
and traffic volumes are not -desirable 
for a residential area. The nei~hbor­
hood [South Sumter] has a high rate of 
adult and juvenile arrests. It also 
ranks very high in other indices 
of blight: infant deaths and still­
births, diseases, illegitimacy, and 
public welfare assistance. 

Immediate and drastic action should 
be taken to improve the liveability of 
this study area. The area could be 
substantially improved by the provision 
of public facilities and improvements 
including water, sewage, a recreational 
area, health facilities, street li~hts, 
and street paving. Garbage collection and 
police and fire protection should also be 
improved. · 

(Def. Ex. No. ---• Neighborhood Analysis at 49). 

Because more than 30% of South Sumter lacks water 

lines (Griffith Testimony at 33), there are no fire hydrants 

in that area. (Barton Testimony at 64-68). Consequently, 

the fire protection in the South Sumter area today is still 

inadequate. (Barton Testimony at 64-68; Rembert Trial 

Testimony). This lack of adequate fire protection (e.g. 

hydrants) has led to higher insurance rates for the South 

Sumter residents. (Barton Testimony at 64-68). 

- 28 -



41. Admitted. But it should be pointed out that 

sidewalks were placed on a limited basis around Bates 

School only after white students were assigned there as 

a result of court-ordered school desegregation. (Weeks 

Testimony at 9; Barton Testimony at 33-34, 60-63; Griffith 

Testimony at 46-47, 69-70). In mid-1960's, the black 

community expressed dissatisfaction that Bates School was 

the only county school without sidewalks and paved streets 

in its vincinty. (Weeks Testimony at 10). The streets 

in the Bates School neighborhood were not paved, nor were 

sidewalks installed until the early mid-1970's (ibid.; 

Griffith Testimony at 44-47), that is, when Bates receiverl 

a large influx of white pupils as a result of court-ordered 

de&egregatiop. (Barton Testimony at 33-34, 60 63; Weeks 

Testimony at 6-9; Griffith Testimony at 47). 

42. Admitted. It is admitted that since 1976, $1.4 

million dollars in federal community development block grant 

funds have been spent in South Sumter. According to Mr. Ben E. 

Griffith, Jr., the Executive Director of the Santee-Lynches 

Regional Planning Council in Sumter, the installation of 

water and sewer lines in the South Sumter area is a five 

phase project. (Griffith Testimony at 74). To date, only 

three phases have been funded (Id. at 34). ~/ Today, half of 

•t South County obtained $400,000 in federal community develop­
ment funds in 1976. (Griffith Testimony at 20). In 1977 or 197C­
another $500,000 in federal funds was obtained by the County. 
(Id. at 30). Another $500,000 was obtained since 1978. 
Phase 4 of the five-phase project was not funded. (Id. at 34). 

- 29 -



(~ -

South Sumter is without sewer services (id. at 33), and 

thirty to forty percent of South Sumter is without both 

water and sewer services. (Ibid.). ~/ Sumter County 

has not spent any local funds for water and sewers in 

South Sumter. Moreover, the federal monies obtained by 

Sumter County since 1976 for water and sewers in a portion 

of South Sumter were available under federal revenue 

sharing programs since 1972 (Griffith Testimony at 73), 

and such funds were also available in the 1960's under 

some of the now defunct federal programs (~, rnodel 

cities, urban renewal). (Id. at 62). 

Black citizens in the South Sumter community formerl 

a civic organization in 1954 "to secure improvements in th'ii 

South Sumter area," that is •igetting hard-surface streets, 

lights, sewage, running water, sidewalks and the like, garbage 

collection[.]" (Barton Testimony at 6). Numerous attempts 

by the black civic group were made over the years to get 

physical improvements for South Surnter, but such efforts 

failed. (Barton Testimony at 7-10, 42). According to 

S.R. Barton, who served as secretary for the South Sumter 

~/ Where there is no sewer system, South Sumter residents use 
outdoor "pit toilets" (Barton Testimony at 32-34) or "privies." 
(See Griffith Testimony at 34). 

- 30 -



community civic group from 1954 to 1969, each time the group 

requested city and county officials to make improvements in 

South Sumter, the group was told that the monies had already 

been spent. (!£. at 8). 

43. Denied. The case authority cited by plaintiffs 

provides only that the state constitution does not allow the 

state legislature to grant counties the authority to 

tax and to issue bonds to construct sewers. (Bratcher v. 

Ashley, 245 S.C. 421, 141 S.E. 2d 109 (1965); Doran v. 

Robertson, 203 S.C. 434, 27 ~.E. 2d 714 (1943).) The cases do 

not address the question whether counties had authority to 

construct such sewers (i.e., from other revenue sources). 

Indeed, county records indicate that the county constructed 

sewers before ]976. (See :!::A::: Def. Ex. No. Minutes 
J ' -· 

of December 23, 1969, September 7, 1970, December 8, 

1970, December 22, 1970, February 8, 1972, May 9, 1972 

and January 23, 1973; Rivers Testimony at 46; R. Palmer 

Testimony at 37-39; Finney Testimony at 34-35; Gray 

Testimony at 30-31). 

44. Admitted in part. While the county has agreed 

to maintain the oxidation pool for the Mayesville Development 

Project (a federally funded housing project just outside 

the town limits of Mayesville), the oxidation pool was 

- 31 -



built in connection with the project's construction. 

(Jefferson Testimony at 16-17). Furthermore, the 

pool serves less than 20 of the 75 to 100 houses of 

the project (Jefferson Testimony at 16-17). 

45. Admitted. Defendants admit that in 1970 and 1972, 

sewage lagoons were constructed in Runneymede, Mayesville 

East, and Ivey Hall, three predominantly black communities, 

at an approximate cost of $100,000. However, the lagoons 

were built in these black areas only after similar lagoons 

had been constructed in other, predominantly white sections 

of the county. (R. Palmer Testimony at 39). Moreover, 

the Runneymede area lagoon was installed only after the 

local landowners donated the land to the county and purchased 

equipment necessary the installation of the sewage treat­

ment facility. ( R. Palmer Testimony at 38-39; Finney 

Testimony at 34-35). Finally, although it is not clear 

whether the county actually provided the funds for the 

construction of the lagoons, Plaintiffs assert in Paragraph 

43 of their Pretrial Brief that before 1976 Sumter County 

had no legal authority to construct sewer systems. If the 

county did actually install the lagoons in 1970 and 1972, 

then according to the Plaintiffs, it did so without any 

legal authority. (Rivers Testimony at 46; R. Palmer 

Testimony at 37-39; Gray Testimony at 30-31; Finney 

Testimony at 34-35; Plaintiffs Pretrial Brief at 

Paragraph 43). 

- 32 -



46. Admitted in part and denied in part. Defendants 

admit that in 1971 the County Council issued $750,000 

worth of bonds for paving and drainage. However, Defendants 

deny that all of the $750,000 was actually channeled into 

. South Sumter • . In fact, the funds were not raised exclusively 

for South Sumter, but rather for all the areas of Sumter 

County in need of paving. (DuBose Testimony at 62-63, 59). 

Moreover, the funds were not all expended in 1971, but 

were actually spent over the course of several years. 

(Rivers Testimony at 47). In addition, the financing 

method for the paving and drainage project, whereby the 

bonds were paid off over time from allocations received 

annually by the county known as "Class C funds," was sug-

gested by black House member Ernest A. Finney, and d1d 

not emanate from the County Council. (Finney Testimony 

at 36). In fact, the County Council did not even control 

the funds for street paving in 1971. The Legislative 

Delegation made the ultimate decision as to the specific 

roads which were to be paved. (Hodge Testimony at 110-113). 

47. Admitted in part. Defendants admit that in 

1967, funds were allocated to improve Atlantic, Manning, 

Fulton and Red Bay streets. However, Defendants have 

insufficient knowledge to admit or deny that $500,000 was 

actually expended on such improvements. The one half 

million dollar figure, as admitted by plaintiffs, is an 

unverified estimate. (Rivers Testimony at 49). In 

- 33 -



~ 
I 
I 

addition, it is clear that a substantial portion of the street 

improvements on Red Bay Road were actually provided along white 

occupied residences (R. Palmer Testimony at 44; Gray Testimony 

at 36), and that the work on Manning Road, a major access 

street into the City of Sumter, assists drivers approaching 

Sumter from the south at least as much as it does those 

citizens actually residing on it. (Gray Testimony at 

36). Finally, in spite of any improvements that may have 

been made, the fact remains that a large percentage of the 

streets in South Sumter remain completely unpaved. (Burns 

Testimony at 16), and many of its thoroughfares have no 

drainage gutters, curbs, or sidewalks. (Finney Testimony 

48. Admitted in part. All streets, but one, in the 

Town of Mayesville have been paved; all of the residents 

living on the one unpaved road in the town proper are black 

(Jefferson Testimony at 20). Moreover, five of the six roads 

in the Mayesville Development Project, the all-black housing 

project with 400 residents just outside the town (and in the 

county) are unpaved. (Jefferson Testimony at 17-22). The town 

requested the county legislative delegation to pave the 

roads in the Mayesville Development Project in 1973 or 1974, 

but only one road was paved four or five years later (Jefferson 

Testimony at 17-18). 

- 34 -



49. Admitted. The "improvements" which the county 

made in the Griertown area -- an area with only a few hundred 

people (R. Palmer Testimony at 32-33) -- was to clean out 

some underbrush. (Ibid.). The Griertown area 

in which the work was done is located within the City of 

Sumter. (Rivers Testimony at 36-37). 

SO. Admitted in part. It is admitted that some 

storm drainage work was done by the County in the Ivey Hall 

subdivision in 1974, and it is also admitted that the Ivey 

Hall subdivision is predominantly black. (Gray Testimony 

at 29-31). The Ivey Hall subdivision is "white-

owned," even though it is "black occupied." (Id. at 29-31). 

Furthermore, drainage problems in Sumter County's 

black community have been a continuing problem over the 

years. (See,~· Barton Testimony at 59-60; McCrary 

Testimony at 10-11; DuBose Testimony at 31-32). The 

establishment of a countywide drainage program would b_e __ 

of particular benefit to black communities like Shiloh, 

where drainage problems are particularly acute. (DuBose 

Testimony at 32; McCrary Testimony at 4-5). ~/ Durin~ 

the 1970's it was recommended that the county establish a 

countywide drainage program, but none was ever established 

by the County. (DuBose Testimony at 30-31). 

*I No black person from the Shiloh community has ever 
served on the Sumter County Council (DuBose Testimony at 32). 

- 35 -



0 . ·- . I -} 

51. Admitted in part. Defendants admit that the 

County Public Works Department constructed a drainage 

project in the Rufus area. However, Defendants have 

insufficient information to assert whether the county or 

some other governing body provided the funds for that 

project. (Gray Testimony at 29; Rivers Testimony at 42). 

52. Admitted in part. Defendants admit that the 

Bates swimming pool was constructed in ·south Sumter in 

1967 at an approximate cost of $125,000. The City of 

Sumter contributed a portion of the funds necessary for · 

its construction (R. Palmer Testimony at 40-42; Finney 

Test~mony at 36-37; Gray Testimony at 31; Barton Testimony 

at 66-67; Rivers Testimony at 47). There is also 

evidence that the Bates pool may have been constructed in 

part to forestall disruption (~, riots) in the South 

Sumter community. As long-time black leader Robert 

Palmer noted: 

I remember that many folk were concerned 
as to whether or not we would experience 
a long, hot summer; a long, hot summer 
meaning disruptment and activities by 
disadvantaged people. And a number of 
folk felt that something need to be done 
and that a swimming pool would provide 
an outlet for the people who lived in 
the South Sumter area which could fore­
stall any disruptment in the community. 
It was also used as a sort of political 
element to help politicians. • • • The 
County Engineer at that time was desirous 
of becoming the Clerk of Court, and I 
think that he may have felt that that 
might have been helpful for black folk 
to vote for him. 

(R. Palmer Testimony at 40). 

- 36 -



n 
I : 

53. Admitted. In 1974, the Town of Mayesville 

requested Sumter County to allocate $5,000 for the con­

struction of the Mayesville pool. The County only provided 

$2,500 in cash and $300 in services. Most people who use 

the pool live in the County outside the town. . (Jefferson 

Testimony at 12-14). The total construction cost of the 

Mayesville pool was $40,000. The funds for the balance 

of the cost came from a federal grant of $20,000, a 

contribution of $5, 'ooo from the town and the rest from a 

contribution by the Mayesville Improvement Association, a 

local community organization, which had conducterl fundraising 

activities. (Jefferson Testimony at 12-13). 

54. Admitted. Since then, and as recently as 1981, 

the Town of Mayesuill& has repeatedly asked the eounty for 

additional help in providing recreational services, but the 

response of the County has been that funds were not available. 

(Jefferson Testimony at 14-15). Moreover, for the predominantly 

black Shiloh area, the County was asked for support of pro~rams 

other than recreation (~., funding of a senior citizens 

program, a daycare program, housing repair assistance), but 

no funds were allocated. (Keels Testimony at 27-29). 

55. Admitted in part. Neither Mr. Rivers nor 

Judge Finney recalls the exact nature of the work performed. 

(Rivers Testimony at 45-46; Finney Testimony at 31-32). Judge 

Finney added that there was a controversy over the work because 

it was performed by the County on private property. (Finney 

Testimony at 31-32). 

- 37 -



.) 

56. Admitted in part. Defendants admit that a 

limited transportation system was instituted in Sumter 

County. On March 27, 1973 a delegation of black citizens 

from the Black Political Caucus and the NAACP attended a 

meeting of the Sumter County Commission and requested the 

County Commission to provide a system of free transportation 

for the needy. (Def. Ex. No. __ , Minutes of March 27, 

1973). While a small, limited form of transportation was 

eventually established, we lack information as to whether 

the system was instituted in response to that request. We 

also lack information as to whether the limited transportation 

system actually resulted in any free transportation for 

needy citizens. (Gray Testimony at 49). 

57. Denied in part. Defendants admit that a drug 

rehabilitation program is being operated in Sumter County. 

However, defendants deny that the program was instituted 

specifically in response to requests by black citizens. 

Funds for a drug rehabilitation program were included on 

a list of priorities presented at a March 27, 1973 meeting 

by a delegation of black citizens from the Black Political 

Caucus and the NAACP. (Def. Ex. No. ___ , Minutes of March 27, 

1973). Minutes of that March 27, 1973 County Commission 

meeting reveal that the funds for the drug rehabilitation 

- 38 -



(~ 
\ ..:: -

progra~ were actually provided in response to a request by 

the Drug Abuse Council. (Gray Testimony at 47-48; Def. Ex. 

No. ___ , Minutes of March 27, 1973 meeting of the Sumter County 

Commission). In any event, the drug abuse program in 

Sumter County serves both blacks and whites in the County. 

58. Denied in part. Defendants admit that the 

county has made a change in the prison labor system. 

However, Defendants deny that reform was undertaken in 

response to specific requests of black citizens. A 

rehabilitation program for inmates in the Sumter County 

Public Works was included on a list of priorities presented 

at a t1arch 27, 1973 meeting the of County Council by a 

delegation of black citizens from the Black Political 

Caucus and the Nfo~~CP. (Def. Ex. No. , Minutes of 

March 27, 1973). In any event, there is no information 

as to whether this change constituted a "reform," or 

whether the change occurred as a result of requests for a 

rehabilitation program by black citizens. (Gray Testimony 

at 48-49). 

59. Admitted. Defendants admit that the County 

has installed some traffic signs and signals which were 

requested in letters written by a black citizen. However, 

- 39 -



0 ~ 
~.. ·• 

the letters also contained other requests for traffic 

signs and signals that were never provided by the County 

(Burns Testimony at 33). 

60. Denied. In its minutes approved on December 9, 

1980, the Sumter County Council, with its sole black 

member dissenting, voted to "draft a Resolution asking 

[the] Congressional Delegation to take whatever steps 

necessary to defeat the extension of the Voting Rights 

Act of 1965 •••• " (Def. Ex. No. __ , Minutes approved 

December 9, 1980). At that time, County Councilman 

Richard Lee expressed his opposition to the Voting Rights Act, 

stating that: "It is a stigma underserved around our necks •••• 

South Carolina .didn't deserve it then [in 1965] and doesn't 

now." (Fleming Testimony at 15-16; Def. Ex. No. , rtem' 

November 26, 19~~). Black citizens were angry over the 

County Council's resolution on the Voting Rights Act, and 

an overflow crowd of black citizens attended the next public 

meeting of the Council to demand that the County Commission 

"withdraw their intentions and statements[.]" (Fleming 

Testimony at 15). The County Council did not repeal its 

earlier resolution, but instead voted to pursue individually 

the matter of seeking a repeal of the Voting Rights Act 

(Def. Ex. No. ___ , Minutes of December 16, 1980). (Ibid.). 

- 40 -



61. Defendants lack information that the County 

provided $803,800 to Tuomey Hospital for the care of 

indigents from 1972 through 1981. Defendants note 

that the City of Sumter also funds Tuomey Hospital. 

(R. Palmer 'Testimony at 17). Furthermore, as the 

County notes in Paragraph 62 of its proposed facts, 

almost half (47%) of the indigents treated at Tuomey 

during that period were white (Plaintiffs' Exhibit II to 

Plaintiffs' Pre-Trial Brief at Paragraph 62). 

Defendants further note that around 1966 Tuomey 

Hospital was cited by the U.S. Department of Health Education 

and Welfare for its racially discriminatory practices (~, 

separate thermometers for blacks and whites, segregated 

patient rooms). (R. Palmer Testimony at 17-19; Def. Ex. 

No. ___ , Item, September 30, 1966). The Hospital 

decided to give up its federal assistance rather than 

halt its discriminatory practices. (Ibid.). 

62. Admitted in part. Defendants admit that of the 

indigent patients treated at Tuomey Hospital from 1972 through 

1981, 47% were white and 53% were black. Defendants note that 

the lack of any black participation in the administration 

of Tuomey Hospital -- the only hospital in Sumter County 

(Player Testimony at 16-17) -- has been a source of frustration 

- 41 -



to the black citizens of Sumter County in recent years. 

In spite of the requests of concerned black citizens, 

no black has ever served on the Tuomey Hospital Board 

of Trustees. (Exhibit HH to Plaintiffs' Motion for Summary 

Judgment; Player Testimony at 16-17, McTeer Testimony at 

6-12). 

63. Denied. The Sumter County Council is 

unresponsive to the particularized needs of the county's 

black citizenry. (Barton Testimony at 59-68; Burns 

Testimony at 34, 72; Finney Testimony at 26-38; Fleming 

Testimony at 9-12, 27-29; Gray Testimony at 42-44; McCrary 

Testimony at 4-10; McLester Testimony at 29-31; Sanders 

Testimony at 13-16, 21-22). For example, fifteen years 

ago, Sumter County authorized a study of its neighborhoods. 

The study urged the county officials to take ''[i]mmediate 

and drastic action ••. to improve the liveability of [South 

Sumter]." (Def. Ex. No. , Neighborhood Analvsis 

Sumter, S.C. at 49-50 (1968)). Other county studies over 

the years have also urged drastic action to improve the 

South Sumter community. (see. ~· Def. Ex. No. ___ , 

Overall Economic Development Plan for Sumter County, 1963 

at 35-38; see also Initial Housing Element for Sumter 

County, S.C. (1971) at 22-23). But to this day, many of 

the residents in the predominantly black South Sumter 

community are without the basic necessities of running 

- 42 -



. . 
water, indoor plumbing and the like. (Griffith Testimony 

at 33-34; Burns Testimony at · 1~-17). Nearly half of the 

South Sumter streets are dirt _(Def. Ex. No. ___ , Map of 

South Sumter streets; and when it rains, the dirt streets 

be.come mud and ·impassable. -(Barton Testimony at 31, 59). 

Another example of the County's failure to meet the 

needs of its black citizens concerned the 1973-74 construction 

of South Sumter Park. In 1973, black residents in South Sumter 

learned that city and county officials were planning to build a 

park in South Sumter at a cost of $130,000. (Barton Testimony 

at 26-29). Black residents of South Sumter opposed the 

construction of the park, because of other more pressing 

needs in their community (water, sewer, paved roads). (Id. 

at 29 30). As black leader S.R. Barton explained: 

Well, you see, through the years South Sumter 
area was a very sandy area, low streets, when 
it rains, water coming through the floors in 
people's homes and that type of thing. Sewage 
was absent. Just nothing but pit toilets you 
see, and no lights in that area. And we felt 
like and particularly myself felt like we 
should have decided what was best for us in 
that area, and we just didn't see where a nice 
place to play -- Well, when you finished playing, 
you'd go home on sandy streets and there's pit 
toilets and all, no restroom in the home or no 
lights and that type of thing. We didn't see 
where a park would have priority, and certainly 
I did not. 

(Barton Testimony at 27-28). 

- 43 -



Black residents also oppo~ed the park's construction 

because of the resultant displaci.ement of elderly black · families 

who would have been "forced out" of the South Sumter area. 

(Gray Testimony at 20-25). ~/ After blacks brought an 

unsuccessful lawsuit in fe~eral court to enjoin the park's 

construction (Barton v. Lynn; 529 F.2d 189 (4th Cir. 1975)), . 

the property for the park ,was taken by eminent domain and the 

black famili~s were forced to move out (Gray Testimony at 20-24 ; 

Barton Testimony at 29-30). The black citizens who were forced 

to move out particularly the elderly were devastated: 

[I]t was more or less like we'd 
been there for so many years until, 
well, it was family like. Everyone 
knew everybody, and the elderly ones 
were very much displeased and did 
not care to leave this area, and, 
well, I know one lady in particular, 
Mrs. DuBose, she just pined away, 
and I th1nk the day they were to 
move her out she died. 

(Barton Testimony at 30; Gray Testimony at 24-25). 

Another example of the unresponsiveness of the Sumter 

County Council was described by black leader (and presently 

Chairman of the gubernatorially-appointed Sumter County 

Election Commission) Ferdinand Burns. Burns said that the 

Sumter County Council meets regularly at 10:00 a.m., every 

other week. (Burns Testimony at 11-14). Burns asked the 

County Council to hold meetings in the evening, when it 

would be more convenient for black citizens to attend 

meetings and to participate in the affairs of the County. 

(!£i£.). The County refused Mr. Burns' request. (Ibid.). 

*/ One black leader in South Sumter testified that "the 
officials decided to give us a park at the expense of dislocat L ·;;; 
a number of families when there [was] available vacant land in 
the same section of the town." (Barton Testimony at 29). 

- 44 -



In November 1966, black citizens appeared before 

the Sumter County Commission and requested the establishment 

of a food stamp program. (Def. Ex. No. , Minutes of 

November 29, 1966). At that time the need for a food 

stamp program in Sumter County was critical. At 

that time, three-fourths of the County's black families 

had annual incomes below the poverty level ($3,000). 

(Def. Ex. No. _____ , Population and Economy of Sumter County). 

On the same day that the Sumter County Commission decided 

not to establish a food stamp program, it decided to 

give its employees (all of whom were white) Christmas gifts. 

(Ibid.). 

64. We lack information and we are unable either 

to admit or deny this assertion. 

Over the years, Mrs. Marion McLester, an eighty-seven 

year old black woman, made several unsuccessful attempts to 

obtain funding from Sumter County for the construction of a 

recreation center in the predominantly black Rafting Creek 

area of the County. (McLester Testimony at 11-13). ~/ One 

Sumter County Commissioner told Mrs. McLester "we have no 

~/ Mrs. McLester's family had originally donated land for a 
public school in the Rafting Creek area. (McLester Testimony 
at 10). Later, the County took twelve more acres of "some of 
[Ms •. McLester's] best farmland" to build a high school. (Ibid. ) .' 
According to Ms. McLester, the school was never built. ----
(Ibid.). The black residents of Rafting Creek thought 
t~this twelve acres could be used to construct the 
recreation center. (Id. at 11). 

- 45 -



funds for rural recreation." (McLester Testimony at 12). 

Ms. McLester pointed out to the County Commission that federal 

funds were available. In 1979, a Sumter County representative 

came out to Ms. McLester's house to inform her that the county 

had received $80,000 in federal recreation funds and that 

$40,000 would be provided for the construction of a recreational 

center for Rafting Creek. (Id. at 14). Shortly thereafter, 

Ms. McLester received a letter from the Sumter County Commission 

advising her that recreation fundswould be provided next 

year. (Ibid.). But the following year no recreation funds 

were provided. (Id. at 14-15). 

Thereafter, correspondence was exchanged between Sumter 

County officials and Mrs. McLester -- Mrs. McLester claiming the 

County had promised recreation funds and the County claiming 

no such promise had been made. (Ibid.). In 1981, three 

white men, one of whom was South Carolina House Representative 

David Mcinnis, ~/ went out to the Rafting Creek school for a 

ground-breaking ceremony. The ceremony was to launch the 

construction of the Rafting Creek recreational center. (1£. 
at 19-20). Photographs were taken of Mrs. McLester and 

the three men standing at the school grounds with a 

shovel. (Id. at 19-21). To this day, no ground has been 

broken for the construction of a recreational center in 

the Rafting Creek Community. (Ibid.). 

*I Mr. Mcinnis, who in 1979 was a member of the South Carolina 
House of Representatives, helped to obtain a baseball diamond 
for the Rafting Creek School. (Id. at 17). However, the gates 
around the playing field are locKed in the summer so that no one 
can gain entry to the playing field, and the baseball diamond 
has not been used. (Id. at 16). 

- 46 -



65. Admitted in part. At least part of the funds 

expended by Sumter County were obtained through federal 

grants (Griffith Testimony at 47). 

Mr. Ferdinand Burns testified that the Sumter County 

Council is unresponsive to the needs of the black residents. 

(Burns Testimony at 34-36). Mr. Burns stated that while 

"some things in recreation" have been .done, he thinks the 

City of Sumter "played a part in this also •••• " (Id. at 

36). Likewise, Mr. Ruben Gray testified that the County 
I 

has not been responsive to the special needs and interests 

of black citizens. (Gray Testimony at 42-45). Mr. Gray 

did acknowledge that recreation programs had, at some 

unspecified time, been c·reated "in the county." (Id. at 

49). 

Sumter County has applied for and obtained federal funds 

for outdoor recreation. (Griffith Testimony at 47). These 

funds are not spent on programs, but rather are spent on 

recreation facilities. (Id. at 48). When the county receives 

these federal monies, it negotiates a contract with the City 

of Sumter to operate and maintain the recreational facilities. 

(Ibid.). There is a marked disparity between the type of 

recreational facilities maintained in Sumter County's white 

community (~, Dillon Park) and the County's black community 

(~, Stonehill recreation area). (DuBose Testimony at 21-25; 

Griffith Testimony at 51-52; Def. Ex. No. ___ , Photographs of 

Sumter County-Dillion Park and Stonehill Recreation Area). 

- 47 -



66. Admitted. The work actually done involved 

little, if any, cost to the County (Exhibit 1 to Rivers 

Testimony). 

67. Admitted in part and Denied in part. The 

work actually done at the James Village apartment complex 

involved little, if any, cost to the County (Exhibit 1 to 

Rivers Testimony). Black attorney Ruben Gray, who was 

manager of James Village apartments from 1973 to 1981, 

said that James Village is located in the City of Sumter, 

that the road paving in the apartment complex is "very 

minimal" and that no sidewalks are there. (Gray Testimony 

at 32-33). 

68. Admitted in part. It is admitted that the 

black persons listed in paragraph fi8 were appointed to 

the designated boards and commissions in the indicated 

years. Plaintiffs' records show the following numbers of 

black persons being appointed in the indicated years: 

- 48 -



No. of Blacks Total No. of Black & % of 
Appointed in White Persons Appointed Appointees 

Year that Year in that Year 'Who are Bla ck -
1969 0 28 0% 

1970 1 16 6% 

1971 2 13 15% 

1972 1 7 14% 

1973 1 18 6% 

1974 4 33 12% 

·1975 3 22 14% 

1976 5 23 22% 

1977 3 22 14% 

1978 .4 20 20% 

1979 4 18 22% 

1980 5 14 36'% 

1981 2 13 15% 

1982 3 10 30% 

Total 39 259 15% 

(Defendants' First Set of Requests for Admissions and Plaintiffs ' 

September 9, 1982 Responses thereto at (No. 4)). 

- 49 -



As of 1982, the racial composition of appointed boards 

and commissions in Sumter County is as follows: 

Name of 
Board/Commission 

Sumter Housing Authority 

Board of Zoning Adjustment 

Planning Board 

County Development Board 

County Board of Appeals 

County Board of Health 

Commission for Higher Education 

Airport Commission 

Historical Commission 

Cultural Commission 

Commission on Alcohol and 
Drug Abuse 

Library Board 

Exhibition Center Board 
of Directors 

Financial Advisory Committee 

Black 

0 

1 

1 

0 

1 

0 

2 

0 

0 

1 

1 

2 

0 

0 

9 

Appointments 

White 

2 

3 

5 

2 

6 

3 

7 

2 

9 

4 

7 

5 

3 

6 

64 

Total 

2 

4 

6 

2 

7 

3 

9 

2 

9 

5 

8 

7 

3 

6 

73 

Totals (12.3% black) 

- 50 -



-; 

These figures on appointees are taken from "an accurate listing 

of the name and race of each person appointed by the County 

Council of Sumter County to certain boards and committees, 

as of February 9, 1982." (Defendants' First Set Requests for 

Admissions and Plaintiffs' September 9, 1982 Responses thereto 

(No. 3)). 

- 51 -



II. STATEMENT REGARDING WITNESSES 

In our pre-trial brief, the United States noted that 

"it is also possible that after Sumter County lists -its 

witnesses ••• , the United States will decide that the 

testimony of . witnesses who we are unable to identify at 

this time is necessary." (Defendants' Pre-trial Brief at 

7). Since the January 24, 1983 filing of defendants' and 

plaintiffs' pre-trial briefs, the United States has found 

it necessary to make two changes in its listin~ of witnesses. 

First, Mr. J. T. McCain, who was on the witness list of 

the defendant United States, will not be called. Mr. McCain, 

who is 77, has informed counsel for the United States 

that he would like to be excused from attending the trial 

due to health reasons. Due to Mr. McCain's a~e and 

condition, and inasmuch as the same factual information 

can be presented through other witnesses, the United 

States will not call Mr. McCain as a witness. 

The United States of America requests leave to make 

one addition to its listing of witnesses: Judge Ernest 

Finney, Jr. Judge Finney ran for the South Carolina 

House of Representatives in 1966 and ran for the Sumter 

County Commission in 1968. He was defeated in both contests. 

- 52 -



In 1972, he was elected to the South Carolina House and 

ran at-large in Sumter County. Followin~ the reapportion­

ment of the South Carolina House into single-member 

districts, Judge Finney was re-elected to the House in 

1974. Since 1976, Judge Finney has served as a Jud~e of 

the Third Judicial Circuit in South Carolina. 

On September 17, 1982, Judge Finney gave a trial 

deposition in this case. His testimony is relied upon 

extensively by the Sumter County plaintiffs in their pre­

trial brief. For example, plaintiffs cite Judge Finney's 

testimony in support of t~e proposed fact that "[b]lack 

candidates have a realistic opportunity to be elected 

in at-large elections in Sumter County." (Plaintiffs' 

Pre-Tr1al Br1ef at 22). Judge Finney made no such 

assertion, and in fact _he-noted that black candidates 

and voters have a more difficult time under an at-large 

system than a districting-type system. (Finney Testimony 

at 39-41). In any event, Judge Finney played a 

central role in the political activities of Sumter County's 

black community during the 1960's and early 1970's. His 

proposed testimony would cover his defeat in at-large elections 

in 1966 and 1968. Furthermore, he would explain his 1972 electio . 

- 53 -



to the South Carolina House, and his legislative involvement in 

the effort to establish single-member districts for the South 

Carolina House. Judge Finney would also be expected to contrast 

running at-large in Sumter County with other election systems. 

In this regard, Judge Finney's testimony would be similar to 

that which Mr. J. T. McCain was expected to give. 

Finally, Judge Finney would be expected to testify on 

the 1967 enactment of an at-large election plan for Sumter 

County, and the black community's lack of involvement and 

lack of support for that type of election plan. 

It is anticipated that Judge Finney's direct testimony 

would take about one and a half hour. 

- 54 -



III. LEGAL ISSUES RAISED IN PLAINTIFFS' PRETRIAL BRIEF. 

While plaintiffs make no "new" legal contentions in 

their Pretrial Brief, they assert several erroneous 

legal points that warrant a response. 

First, plaintiffs contend that they are entitled to 

a declaratory judgment if they "can articulate a legitimate 

nondiscriminatory reason for the change" from a guberna~orial 

appoint~ent system to an at~large electoral system. 

(Plaintiffs' Pretrial Brief at 3). That contention is 

incorrect. Plaintiffs in a Section 5 declaratory judgment 

action must show that the voting change at issue (in 

this case at-large elections) is free of a racially 

discriminatory purpose and effect. City of Rome v. 

United States, 446 U.S. 156 (1980); City of Richmond v. 

United States, 422 U.S. 358 (1975). Thus to satisfy the 

"purpose" burden, the plaintiffs must show that discrimi­

natory purpose played no motivating factor in the decision 

to adopt at-large elections. While we agree that the 

Supreme Court decisions cited by the plaintiffs ~/ are 

relevant in addressing the issue of purpose, the altered 

burden of proof in a Section 5 preclearance lawsuit 

*/ Rogers v. Lodge, 50 U.S.L.W. 5041 (U.S. July 1, 1982; 
Village of Arlington Heights v. Metroyolitan Housin$ 
Development Corp., 429 U.S. 252 (1977 ; City of Mob1le v. 
Bolden, 446 U.S. 55 (1980); Washington v. Davis, 426 
U.S. 229 (1976) and Texas Department of Community Affairs v. 
Burdine, 450 U.S. 248 (1981). 

- ss -



c 

requires a somewhat different application of the standards 

announced in the cited cases, i.e., the standards should 

be applied to determine whether the plaintiffs have 

demonstrated the absence of discriminatory purpose • 

. Second, we . agree with plaintiffs that the retrogression 

standard of Beer v. United States, 425 U.S. 130 (1976), 

should guide this Court in determining whether the voting 

change at issue is free of racially discriminatory effect. 

However, for the r~asons stated at pages 69-71 of our 

Pretrial Brief, we do not agree that the Court is limited 

to using the old appointive system as the benchmark for 

measuring retrogression. 

Finally, the County claims that this Court lacks 

jurisdiction "to adjudicate claims in South Carolina 

arising under Section 2." (Plaintiffs' Pretrial Brief 

at 6). We see no jurisdictional problems presented in 

this lawsuit. Sumter County has properly invoked the 

jurisdiction of this Court by filing this action against 

the United States, and Congress has granted this Court 

the exclusive jurisdiction to determine whether to grant 

or deny the Section 5 declaratory relief which the 

County seeks. 42 U.S.C. 1973L(b). Rather than raising 

a jurisdictional issue, we view plaintiffs' contention 

- 56 -



r 
' ·, 
' 

to be that Congress intended that this Court should 

grant a Section 5 declaratory judgment even if the evidence 

presented demonstrates that the voting change at issue, 

although not retrogressive, "results in a denial or 
. . 

abridgment of the right • • ~ to vote on account of race 

or color •••• " (Section 2, 42 U.S.C. 1973). !I For 

the reasons set out at pages 73-77 of our Pretrial 

Brief we do not agree with this contention. 

Plaintiffs also present (at pages 9-12 of their 

Pretrial Brief) an analysis of how they believe Section 2 

should be applied in this case if the Court deems it relevant. 

We have some difficulty understanding this analysis, but 

note that plaintiffs' analysis departs significantly 

*/ Plaintiffs note "that the District of Columbia Court 
lias no power to order affirmative relief to remedy a 
Section 2 violation." (Plaintiffs' Pretrial Brief at 
7.) Once again, however, the issue is whether the 
County's request for a Section 5 declaratory judgment 
should be denied. We see little distinction between a 
denial of Section 5 relief because of a jurisdiction's 
failure to demonstrate the absence of discriminatory 
purpose, because of the failure to demonstrate the 
absence of retrogression or because of the presence of a 
Section 2 violation. Regardless of the basis for the 
denial, the County will be required to adopt a new 
election plan "which plan satisfies the requirements of 
the Voting Rights Act." Busbee v. Smith, 549 F. Supp. 
494, 518 (D.D.C. 1982), aff 1 d, 51 U.S.L.W. 3546 (U.S. 
Jan. 24, 1983). 

- 57 -



.) 

from the statutory standard described in the Senate 

Report accompanying the 1982 amendment to Section 2. We 

believe this Court should be guided by the Senate Report in 

applying the Section 2 standard. 

STANLEY S. HARRIS 
United States Attorney 

Respectfully submitted, 

· .. WM. BRADFORD REYNOLDS 
Assistant Attorney General 

LD • 
PAUL F. HANCOCK 
J. GERALD HEBERT 
ROBERT N. KWAN 
THOMAS G. SNOW 
Attorneys 
Civil Rights Division 
Department of Justice 
lOth and Constitt1tion Aven\:1e, N.W. 
Washington, D. C. 20530 
202/724-6292 



('7\ 
• ·, 

CERTIFICATE OF SERVICE 

n~ 
I hereby certify that on this ~ day of February, 1983, 

I served the foregoing l Re~l)l--Bri-ef-9f_t ;hez. Derfendant~/ United 
"-> 1C 1 /-'/~/ -"G--r c ) I-:- -e - - - --

States of America ~)o~ ~?:~~~~\_o'1l ~~ ,. ~~~n~;l,~~" :~cord, by 

placing a true and accurate copy of the same in the United 

States mail, first class, prepaid postage to: 

Joseph W. Dorn 
Kilpatrick & Cody 
Suite 500 
2501 M Street, N. w. · 
Washington, D. C. 20037 
-l~·v·.J__Q_J!.. G / ~:.. . '~ ~ '· 
Ram:i:a.l--1.- ~ .-- B-e-1:-l 

- _ ><\"'(_ M. Elizabeth Crum 
J o" t= \v : - / McNair, Glenn, Konduros, Corley, 

Singletary, Porter & Dibble, P.A. 
P. 0. Box 11390 
Columbia, South Carolina 29211 

Howard P. King 
Bryan, Bahnmuller, King, Goldman 

& McElveen 
P. 0. Box 2038 
Sumter, South Carolina 29150 

Armand Derfner 
5520 33rd· Street, N. W. 
Washington, D. C. 20015 

Laughlin McDonald 
52 Fairlie Street, N. W. 
Atlanta, Georgia 30303 

Herbert Buhl, III 
533-A Harden Street 
Columbia, South Carolina 29205 

J. GERALD HEBERT 
Attorney, Voting Section 
Civil Rights Division 
Department of Justice 
lOth & Constitution Avenue, N. W. 
Washington, D. C. 20530 
(202) 724-6292