Appendix to the Pre-Trial Memorandum of Plaintiffs Ralph Gingles et. al.

    IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

MLPH GINGLES, et aI. , )
)

Plaintiffs, ) No. 81-803-CIV-5
)

v.)
)

RUFUS L. EDMISTEN, €E al., )
)

Defendants. )
)

APPENDIX TO PRE-TRIAL MEMOMNDI]M
OF PLAIMIFFS RALPH GINGLES. ET AL.

Slip Opinions submitted pursuant to Local- RuLe 5.03



RECO I,I}T EN OF.D FOR FU LL-TEXT PUBLIC ATION
See, Sirth Cicuit Rule 24

No. 8 l-5333

UNITED STATES CCUAT OF APPEAI.S
FOR THE SIXTH CIRCUIT

]alrrs L. BucneNeN, et al,
Plnint iff s- App ellant s,

v.

Tirr Crry or JacxsoN AND THE Srers
or TrNNrssur, et al.,

D ef endants- App ellees.

Ox Apprar, from the
District Court of the
United States for the
Western District of
Tennessee, Eastern
Division.

Decided and Filed June 7, 1g83

Before: Lryrr-y and ManrrN, Circuit Judges and RunrN,
District Judgeo.

_ R*ry, District Judge. Plaintifis filed this action in March,
1977 challenging :he 

-at-large 
voting procedure for electing

Jackson, Tennessee's three-member Board of commissioner's.
In th_eir Complaint, plaintifis alleged that the at-large sys_

tem violates the Thirteenth, Fourteenth and Fifteenth Alend-
ments to the constitution and various federal statutes by
diluting the voting strength of Jackson's brack citizens and
depriving them of meaningful participation in the political
processes of that city. Four years after this suit was fi.led, the

-.'.TFe 
Honorabie cqrr !. Rubiq chief Judge of the united statesDistrict court for the Southern Diitriat;] brri8, "rui"iii a-JiGr[iior.



2 Buchanan, et al. v. Citg of lackson No, gt-5833

Dist'ict co-*, granted defendants' Motion for summary Judg-ment based.pon the united states Supreme court,s iecisionin Mobile v. Bolden,446 U.S- 55 (19gb). O, 
"pp"A, 

plain_
tiffs contend that summary judgment on th. dirp,it;J;"l.uo,
of &scriminatory intent *", i*prop"r. plainufis arlso seek
reversal of the District court o. the ground that Rogers v.
Lodge,102 S.Ct. SZTZ (19g2), 

" r".onI voting aiirUoi'""r",
and the recent amendment to the voting Rights Act of 1g65,
42 u.s.c. $ 1g7g et,seq.,-after the regar s-tand"ards upon-which
the District Court based its decisionl

The City of Jackson, Tennessee is governed by a three-
member Board of commissioners. Each commissioner is
elected at large and runs for one of three d"rigr*;;; posi_tions: (1) the Mayor, who serves as Commissioier of public
Affairs, Public Safety, Revenue and Finance; (2) the-Com-
missioner of Streets, Hearth, and sanitation and'public Im-provements; and (3) the commissioner of Education, parks,
Recreation & public property. An individ""r .""ri iesignatewhich of these positions he is a cand.idate for and Lust
receive a majority of the votes cast in ordrer to be elected. Inthe even no candidate receives a majority, a run-ofi erecuon
is held between the two candidates receiving the most votes.
Jackson has utilized the commission for*" of gor".-o"nt
since 1915, when the Generar Assembly of the s,ii" oi r"n-
nessee enacted chapter 16g of The private Acts. prior tothat time, Jackson _was governed by a Mayor arrd afu"rman
elected by geographic &strict

Plaintifrs in their Complaint made the following speciffc
allegations in support of their contention &at thJ 

"iJ"rg"system for electing Jackson's Board of commisrio""r.-rorrtin unconstitutional vote &rution. First, plaintifls craimedthat the-political processes rea&ng to nomination and elec-tion in Jackson were not equ_ally open to participation byblacks. In this regard, plaint-ifis 
"it"a 

th" r""t trr"i 
"o ut""r.has ever been elected to the office of Commis;;;;;;r" 

""yother city-wide elective office, the rower registration rate of



No. 8l-5333 Buchanan, et al. v. City of lackson 3

black voters alleged to be attributable to official action prior
to 1950, racially polarized voting in instances rvhere blacks
had run for city-wide office, the ferv blacks rvho serve on
various city boards, alleged discrimination against blacks in
municipal employment, and the exclusion of blacks from the
leadership of political party organizations within the city.
Plaintiffs also claimed that historically based discrimination
and segregation in housing, education, public facilties and
employment, and an alleged disparity in the provision of
municipal services betrveen black and rvhite neighborhoods,
support their general allegations of unlarvful vote dilution.

The District Court granted summary judgment on all of
plaintifrs' statutory and constitutional claims based primarily
on the Supreme Court's decision in Llobile v. Bolden,446 U.S.
55 (1980). In Bolde.n, a case strikingly similar to that norv
before us,r the Suoreme Court set forth the standard for
determining the constitutionality of an at-large electorar
system.

The Court in Bol"den first held that in order to establish
a violation of the Fifteenth Amendment, a plaintifi must show
both a discriminatory motivation and an interference with
the actual registration or voting process. 446 U.S. at 65.
Because it was undisputed that blacks in lv{obile "registered
and voted rvithout hin&ance," the plaintifi's Fifteenth Amend-
ment and Voting Rights Act claims were summarily rejected.2

A majority of the Court in Bolden also agreed that an at-
large voting system violates the Equal Protection Clause of
the Fourteenth Amendment only if it is shown that the

, Brtdr" t"vo-lved a challenge to the City of Mobile, Alabama,s at-
large- system of electing its three-membei Board ot 'commiiiior,..r.
Nlobile had utilized this system since 1911 and althouEh 

-tlacts
represented.appr-oximately Zb.4Vo of the population, no Slacli hadqyer been elected to the Commission. 423-F.Supp. ai 3g6, Agg (S.D.
A]a.1976).

-2-TI,_" Supreme Court held that Section 2 of the Voting Rights Actof 1965 "rvas intended to have an effect no different rrori ttraT-ot ttreFifteenth Amendment itself." .1.16 U.S. at 61.



4 Buchanan, et al. v. City of lackson No. 81-5333

.system "lvas conceived or operated as a puq)oseful device to
further racial discrimination." MO U.S. 124, 149 (1971). The
clisproportionate effects of an electral svstem do not alone
establish a cliscriminatory purpose. 446 U.S. at 66. In applying
this standard to the evidence relied upon by the lorver courts
in the case before it, horvever, no vierv commanded a ma-
jority of the Court.

Justice Stewart, writing for the plurality, rejected the
Dishict Court's primary reliance upon certain of the so-

called Zimmer factors, derived from the decision of The
United States Court of Appeals for the Fifth Circuit in
Zimmer v. LIcKeithen, 485 F.2d i297 (5th Cir. 1973).3 Al-
though conceding that the circumstantial factors derived
from Zimmer "may afford some evidence of a discriminatory
purpose," the plurality stated that Zintmer criteria rvere not
alone sufrcient proof of such a purpose, and specifically re-
jected those relied upon by the District Court as "most

assuredly insufficient." 446 U.S. at 73.a

Four members of the Court in Bolden argued that assum-
ing proof of a discriminatory intent rvas required, the evi-
dence below established such intent. Justice White claimed
that the plurality's piecemeal rejection of the circumstantial

3 The Court in Zimm,er identified the folowing factors as bearing
upon a claim of unconstitutional vote dilution: (1) lack of minority
access to the process of slating candidates; (2) unresponsiveness of
legislators to the particularized interests of the black community;
(3) the strength of the state policy "underlying the preference for
multi-member or at-large districting; and (4) the existence of past
racial discrimination in the community. The Court also considered
the existence of large districts, majority vote requirements, anti-
single shot voting provisions and the lack of provision for at-large
candidates to run from particular geographic subdistricts, as additionl
factors "enhancing" a claim of unconstitutional vote dilution. 485
F.2d at 1305.

a The lower courts in Bolden found the following aggregate of
Zimmer factors present in Mobile: (1) the absence of any black
elected to the Board of Commissioners: (2) discrimination against
blacks in municipal employment and the dispnsing of municipal
services; (3) a history of official discrimination against blacks in
Alabama; and (4) the'mechanics of the at-large system, including a
majority vote requirement.



No. 81-5333 Buchanon, et al. v. City of lackson 5

evidence relied upon by the courts belolv was inconsistent
rvith the "totality of the circumstances" approach endorsed
by the Court in White v. Register, 412 U.S. 755. (1973).

The District Court in this case summarily dismissed plain-
tiffs' statutory and Thirteenth Amendment claims for failure
to state a claim upon rvhich relief can be granted. Appellants
have not pressed these claims on appeal. The District Court
also rejected plaintiffs' Fifteenth Amendment claims based
tpon Bolden because the record established that blacks in
Jackson registered and voted rvithout interference. Although
appellants take exception to this ruling, rve ffnd the appli-
cation of Bolden to plaintiffs' Fifteenth Amendment claims
appropriate. Absent any allegation of actual interference in
the voting or registration proeesses, plaintiffs have failed to
state a claim under the Fifteenth Amendment.

With respect to plaintiffs' claims under the Fourteenth
Amendment, the District Court concluded that plaintiffs had
"failed to offer any proof of discriminatory intent on the
part of defendants," and that the additional allegations offered
by the plaintiffs in opposition to defendants' Motion for Sum-
mary Judgment rvere insufficient to support a fin&ng of pur-
poseful discrimination under the standard established by
Bolden.s The District Court also stated that plaintiffs had
"failed to prove that the disputed plan rvas conceived to
operate as a purposeful device to further racial discrimina-
tion.5

5 In addition to the allegations in its Complaint, see text at p. 3,
su.pra, plaintiff relied upon the recent rejection of a preferential
referendum to change the Commission form of government, annexa-
tions which increased the numbers of white voters, and an alleged
disparity in municipal services afforded to black and white neigh-
borhoods.

6 The Supreme Court's language in Bolden, upon which the District
Court relied, condemns a system "conceived or operated as a pur-
poseful device to further discrimination." Thus, even if an electoral
system is enacted innocently, it may be maintained invidiously result-
ing in racial discrimination-



6 Buchanan, et al. v. City of lackson No. g1-533S

_ 
The appellant argues that the District court's decision

should be overturned and the case remanded in light of
congress' recent amendment of the \roting Rights ict of
1965,42 u.s.c. $ 1g7s et seq. and trre recent sufreme court
decision in Rogers v. Lodge, 102 S.Ct. 8272, ilggz). For
ieasons which rvill become apparent rve rvill consider these
developments in the reverse orcrer from rvhich they rvere
raised.

Rogers v. Lodge, supra involvecl yet another challenge to
an at-large procedure for electing a countv Board of bo--
missioners under the Fourteenth Amend.me,t.z Although
lustice White, writing for the majority, did not overrul
Bolden, the Court's decision in Rogers clearly represents a
retreat from the plurality's views in that case.

The supreme court in Rogers first noted that the rorver
courts had correctly anticipated the intent stanclard set forth
in Bolden. 102 s.ct. at s277-7g. The courts belorv concluded
that although the at-large svstem was raciallv neutral whenit was adopted, it rvas being maintained for invidious pur-
poses." Lodge v. Burton, No. 7g-S241, slip op. at 4 (S.D. Ga.
1978 ). Emphasizing the deference to be accorded the Disbict
court's ffndings of fact, particurarly regarding issues of intent,
the majority held that the Districi y"a!;r dltermination that
the electoral system in Burke county was being mai,tained
for discriminatory purposes was not crearry 

"rror.Irrr. 
r02 s.ct.

at 3278-79.
In marked contrast to the pluralitv opinion in Bolclen rvhere

the various zimmer factors relied upon by the lorver courts
rvere singled out and discredited, the court in Rogers enurner-
ated the lorver courts' findings consisting largelf oI zimmer
factors, and endorsed a "totality of the cirJ.rmstances" ap-

__ 
7 Although the Comnl^qint in ..Rog_qrs rvas also brought under theVoting lighF Act of 1^SOS ana ttJtti.t""l-rtt and Fifteenth Amend_ments. the supreme .court in Rogers did ngt aaareis-irriiJ.iot-",p,resumably .Fecause its decision in Bord,en io.ecrose,J .".'ii'""L.r"".

3-!:9"_t an allegation of actual interference i"ith -th"-d;iG"iio" 
o.votlng processes.



No. 81-5333 Buclmnan, et al. v. City of lackson

proach to the question of discriminatory intent. Id. at 3279-81.
The Court concluded that the District Court had based its
finding of discriminatory intent primar-ily on the existence of
Zimmer factors, but found this acceptable because the Court
had not limited its inquiry to such factors. Id. at 3278. The ma-
jority then upheld the combined significance of the following
evidence relied upon by the courts below as evincing a discrim!
natory puq)ose in the maintenance of an at-large system: (1)
although blacks constituted a substantial majority of the coun-
ty's population, they were a distinct minority of the registered
voters; (2) the existence of bloc voting along racial lines
coupled rvith the fact that no black candidate had ever been
elected to the Board of Commissioners; (3) lorv black voter
registration, attributable to pre-Voting Rights Act discrimina-
tion in the form of literacy tests, poll taxes, white primaries,
and educational discrimination; (4) exclusion from the poliUcal
processes generally as evidenced by past discrimination in
democratic pafty affairs and primaries, selection of grand
juries, hiring of county employees, and appointments to counfy-
wide boards and committees; (5) unresponsiveness and in-
sensivity on the part of elected officials tolvard the needs of the
black community, as evidenced by discriminatory paving of
roads, a reluctance to remedy complaints of school segregation
and grand jury segregation, and the Commissioner's role in the
incorporation of an all-rvhite private school; and (6) the
depressed socio-economic stafus of blacks in Burke County
attributable at least in part to inferior education, and employ-
ment and housing discrimination. Id. at 3279-81.

The Court in Rogers also approved the evidentiary value of
various characteristics of an at-large system which may en-
hance the denial of access to the political process, speciffcally,
the large geographic size of the county, the majority vote
provision, the requirement that candidates run for a speciffc
seat, and the lack of any residency restrictions on candidates.
ld. at 3280-81.



8 Buchanan, et al. v. Citg of lackson No. 81-5333

Rogers v. Lodge restores the significance of circumstantial
evidence in determining whether a discriminatory purpose
underlies the maintenance of an atJarge system. Whereas

Bolden appeared to require some direct evidence of discrimina-
tory intent, 446 U.S. at 74, fn. 2L, Rogers recognizes that cir-
cumstantial evidence may, in some cases, be insuficient. Pro'
vided a court considers the existence of Zimmer criteria as

merely evidence of discriminatory intent, rather than the ulti-
mate issue to be determined, it may properly base a finding of
discriminatory purpose upon such factors. Also, a court clearly
should not limit its inquiry to such evidence. Finally, Rogers

in&cates that the trier of fact is to be afforded broad discretion
in applying this "totality of the relevant facts" approach to the
question of discriminatory intent.

As rve have indicated above, the District Court relied
heavily on the plurality opinion on Bolden and its rejection of
Zirnmer factors in granting the appellee's lvlotion for Sum-
mary Judgment. It is also apparent that in opposing the
Motion, the appellants sought to satisfy Bolden's ostensible
requirement that a plaintiff furnish direct evidence of dis-

criminatory intent. At the time of the District Court's de-
cision, the plurality's decision in Bolden was the controlling
authority in this area. The trial court's reliance upon it was
entirely proper. No court is charged rvith an obligation to an-

ticipate a subsequent retreat from existing decisions. This
Court, however, has had the benefft of the Supreme Court's
decision in Rogers v, Lodge, supra. Because rve believe that
the majority's decision in Rogers represents a significant de-
parture from the pluralitv's opinion in Bolden as to the ap-
propriate inquiry in a vote dilution case, we conciude that this
case should be returned to the District Couit for consideration
in Iight of. Rogers v. Lodge, supra. In doing so, however,
we intimate no opinion whatsoever on the suficiency of the
allegations in the Complaint if proven, the evidence now
present in the record, or the decision the District Court should



No. 81-5333 Buchanan, et al. v. City of lackson g

reach. The question of r,vhether an electoral system is being
maintained for a discriminatory puq)ose "deman& a sensi-
tive inquiry into such circumstantial direct evidence as may
be available," and it best left in the first instance to the trier af
fact.- Rogers v. Lodge, supra at 3276, quoting Yillnge of
Arlington Heights v. Ltetropolitan Hotxing Detselopment
Corp.,429 U.S. %2 (1977).

On June 29, 1982, Congress amended Section 2 of the Voting
Rights Act of 1965. Prior to its amendment, the Supreme Cotut
had held that Section 2 merely tracked the Fifteenth Amend-
ment. Citg of Ll.obile v. Bolden,44O, U.S. at 6l (1980).
Accordingly, in order to establish a violation of the statute, a
plaintifi was formerly required to show both discriminatory in-
tent and a direct interference with the right to register or
vote. Id. at 61-65. Amended Section 2, holvever, now provides
as follows:

(") No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed oi
applied by an State or political subdivision in i manner
uhlch restits in a denial or abridgement of the right of
any citizen of &e United States to vote on account of
race or color, or in contravention of the guarantees set
forth in section 1973 b(f ) (2) of this title, as provided
in subsection (b) of this section. (emphasis added).

(b) A violation of subsection (a) of this section is es-
tablished if, based on the totality of circumstances, it is
shown that the political processes leading to nomination
or election in the State or political subdivision are not
.equally open to participation by members of a class of
citizens protection by subsection (a) .of this section in
that its members have less opportunity than other mem-
bers of the electorate to participate in the politicai process
and to elect representatives of their choice. The extent
to which members of a protected class have been elected
to oftce in the State or poliUcal subdivision is one cir-
cumstance rvhich ma), be considered. Prooided, that



IO Buchonan, et al. v. City of lackson No. 81-5333

nothing in this section establishes a right to have mem-
bers oI a protected class elected in n-umbers equal to
their proportion in the population' (emphasis in original).

The Senate Report makes it clear that the amendment to

Section 2 of the Voting Rights Act is intended "to restore

the legal standard that governed voting discrimination cases

prior to the Supreme Court's decision in Bolden." Sen. Rep.

No. 97417 at p. 2,15. The report goes on to summarize that
state of the law as follows:

In pre-Bolden cases plaintiffs could prevail-by shorving
thal a challenged e]ection law or procedure, in the
context of the total circumstances of the local electoral
process, had the result of denying a racial or languagg
minority an equal chance to participate in the electroal
process. Under this results test, it was not necessary
io demonstrate that the challenged election larv or pro-
cedure was designed or maintained for a discriminatory
purpose.

Finally, the legislative history lists "typical factors" rvhich

Congress contemplated a court might properly consider in de-

termining whether there is a violation of the amended Act'
These factors are:

( 1) The extent of any history of official discrimination
in ihe 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 ele-ctions- of the

it"i" ot poliUcal subdivision is racially polarized;

(3) The extent to which the state or political subdi'
vision has used unusually large election districts, majori-
ty vote requirements, anii-single- shot provisions, or other

voting pt"itic.t or procedures that may enhance the op-

pottu"ity for discrimination against the minority group;

(4) If there is a candidate slating process, whether the



No. 81-5333 Buchanan, et al. v. City of lackson 1l

members of the minority goup have been denied access
to that process.

(5)- The extent to which members of the minority goup
in the state or political sub&vision bear the 

"ff"Jts 
&

discrimination in such area as education, employment and
health, which hinder their ability to partlcipate effec-' tively in the political process;

(6) Whether politicd campaigns have been character-
ized by overt or subtle racial appeals;

tll The extent to which members of the minority goup
have been elected to public office in the jurisdicho-n.

Clearly, tle amended Voting Rights Act shifts the focus of
a vote dilution claim under the statute to a &scriminatory
"efiect" or "resul.t" as opposed to motive or intent. AlthougL
examination of the plainufrs'complaint in this case reveals that
the plaintiffs have never proceeded under the Voting Rights
Act of L965, 42 U.S.C. $ 1973 et seq., our prior decision to
remand this case on constitutional grounds suggests &at plain-
tiffs should also be given the opportunity to amend their-Com-
plaint to state a claim under the amended Voting Rights Act.
Appellees' contention that the Voting Rightr Act of 1965 is
inapplicable because Tennessee has never been subject to the
provisions of Section 4 of the Act, 42 U.S.C. $ Ig73b, is simply
incorrect. Although the provisions of Section 4 apply only to
states which had previously utilized discriminatory tests and
devices, Section 2 of the Act contains a general prohibition of
discriminatory practices which operates nationwide. plaintifis
are therefore entitled to proceed under Section 2 of the Act.
Again, however, we express no view as to the merits of any
claim plaintiffs may assert under the amended Voting Rights
Act.

The judgment of the District Court is hereby VACATED
and REMANDED for consideration in light of Rogers v. Lodge
and the Voting Rights Act of L965, 42 U.S.C. $ 1979. et seq.