Motion for Leave to File and Brief of Senators and Representatives as Amici Curiae; Brief of Senators and Representatives as Amici Curiae

    d l'ra t4 tupv /^t^ ^\Lq,5 )

Nd .clu,",t

Footnote # 3
To:Lani
From:Mimi
Re: all the lower courts use standards compatable with Rule 52
(a)

A11 the following Courts of Appeals have used standards

that are compatable with Rule 52 (a), the clearly erroneous

standard: Paige v. Gray, 538 F.2d 1I08 (5th Cir. 1976)t McGi11

v. Gadsden County Commissionr 535 F.2d 277,280 (5th Cir. L976)

where the District Court's rejection of the plaintiff's attempted

showing that elected County officials are unresponsive to blacks

is not clearly erroneousi Panior v. Iberville parish School Bd,

535 F.2d 101 (5th Cir. L976); Nevett v. Sides,533 F.2d 136I (5th

Cir. 1976), an action alleging state statute governing municipal

elections in a particular city, operated to unconstitutionally
dilute Black voting power; Ferguson v. Mallory , 528 F.2d 592

(5th cir. L976\t wallace v. House 515 F.2d 619, (5rh cir. tg75),

affirmed in part and reversed in part the District court in a

claim of deprivation of rights arising out of at-1arge election
of town alderman; Perry v. City of Ope1ousasr 5l5 F.2d 639

(5th Cir. 1975\, the court followed Wallace v. House; B1ack

Voters v. McDonough,565 F.2d I (1st Cir. L977), the Court of
Appeals affirmed the District Court decision and returned
jurisdiction to them, holding that the District Court did not err
in failing to conclude that Lhe at-large system of electing
members of a school committee deprived BIack voters of their
rights and would permit the District court to plaintiffs to
reopen their claim in the future at the discretion of the

District court; Gilbert v. sterrett, 509 E.2d 1389, 1393 (5th

cir. Lg75), affirms that commissioners' court was not



constitutionally required to reapportion commissioners' districts

in 1973 based on projected 1985 population statistics. No

findings of fact should be set aside as clearly erroneous since

the nnature of the evidentiary findings are sufficient and

appropriate to support the courts decision...it is for the trial

court to determine in the first instance in the light of the

circumstances of the particular case.n Dove v. Moore, 539 F.2d

1152 (8Lh Cir. I975), the Appeals Court held that at-1arge system

was not unconstitutional in light of the record demonstrating

that Blacks played an active role and significant role in city
politics thus affirming the decision of the District Court;

Bradas v. Rapides Parish police Juryr 508 F.2d 1109,1113 (5th

Cir L975), the appeals Court vacated and remanded holding that

action alleging that reapportionment plan for the parish police

jury and school board did not violate the one-man, one-vote rule

resulting in dilution of the Black vote in contravention of the

Fourteenth and Fifteenth Amendment, since Blacks did have access

to and participate in the political process. The Appeals Court

felt that their review authority was based in vacating na

sweeping general findingn unsupported by the record that the

redistricting plan was unconstitutional; Kendrick v. Wa14eq,

527 E.2d 44, 47-49 (7th Cir. 1975), reversed the District court

and remanded. The Appeals court found that plaintiffs did a11ege

sufficient facts to constitute a cause ofd action under the

Fourteenth Amendment's equal protection clause. nThe inquiry the

District Court must undertake in cases of this nature should

focus on the type of facts plaintiffs have aI1edged...i1luminated

by findings of fact that support the allegations here, the fact



that few Blacks have ever been appointed to positions...take on

additional significance. n Robinson v. Commissioners Court,

Anderson Counly, 505 F.2d 674,68I (5th Cir. L974), the Appeals

Court affirmed in part, dismissed the appeal of Lhe County Party

Chairmen as moot and the posponment oredr was vacated. The

Appeals Court uses Regester, Whitcomb and Zimmer tests

to measure constitutionality of reapportionment plans involving

only single-member districts. An aggragate of factors were used

to find ample support for the District Court's findings of fact,

thus its conclusions that the apportionment plan was

constitutionallyacceptable.Moore v. Leflore County Board of

Election Com'rs, 502 F.2d 621 (5th Cir. I974)t the Appeals court

upheld the District Court, holding a plan for redistricting of

supervisors' distr icts divided the county into distr icts
practically equal in population and despite the fact that the

plan satisfied the arthemetical aspect of one-man, one-vote

standards, the District Court properly rejected the plan on the

grounds that it diluted Black voting strength;

zimmer v. McKeithen, 485 F.2d L297 (5ttr Cir. 1973), the appeals

Court held that the District Court erred in finding that the at-

large plan did not dilute the Black vote on the evidence adduced

on the record and thus reversed, the judgement was vacated and

remandedi Turner v. McKeithen, 490 F.2d I91, L97 (5th cir. L973),

the Appeals Court affirmed the District Court and held there was

ample evidence in the record to support the District Court's

conclusion that the plan follows nclear and simple boundary lines

and consists of contiguous and compact districtd...areas of Black



concentration are preserved intact and no dilution issue is

created by the plan.n VoI1in.v. Kimbe!, 519 F.2d 790 (4th Cir.

L975) i United States v. Board of Supervisors of Forrest Cty , 571

F.2d 951 (5th Cir. I978), the court of appeals affirmed in part,

vacated and remanded in part. They held there was a history of

denial to B1acks of access to the political process. There was a

necessity for comprehensive investigation of thefacts whenever a

claim of dilution is raised; Parnel v. Rapides Parish School Bd,

563 F.2d I80 ( 5th Cir. L9771, Judge Wisdom held the District

Court's Judge's holdings that previous multi-member plan

constituted inappropriate judicial remedy and impermissibly

diluted votes of Black residents of the parish were not barred by

res judicata and would be affirmed, but the District Court Judge

should order police jury electionns, which were not scheduled for

1980 under a lega1 apportionment plan which had been ordered by

the District Court and hich achieved 1ow population deviation;

Kirsev v. Board of Sup'rs of Hinds Cty., Misst 554 F.2d 139

(5th cir. 1977), the Appeals Court reversed and remanded for

fashioning a remedy; Reese v. DaIIas County, Alabama, 505 E.2d

879 (5th Cir. L974'), reversed and remanded; Hendrix v. Joseph,

559 F.2d 1265 (5th Cir. 1977), the Court of Appeals held the

District Court's findings of fact were insufficient to permit

determination of whether at-1arge election system was used to

unconstitutionally dilute the Black vote. The Appeals Court

vacated and remanded; David v. Garrisonr 553 F.2d 923 (5th Cir.

L977), vacated and remanded; McMillan v. Escambia County, 748

F.2d 1037 (5th Cir. 1984); McCarthy v. Henson,749 E.2d 1134

(5th Cir. 1984), affirmed; .Buchana4 v. City of Jackson, 708 F.2d



I066, 1070 ( 6th Cir. I983), the Appeals Court vacated and

remanded, the majority held that regarding issues of intentr the

District judge's determination that the electoral system in Burke

county was being maintained for discriminatory purposes was not

clearly erroneous. This case follows Rogers and the Appeals

Court recognized that circumstantial evidence may in some cases

be insufficient. Provided a court considers the existence of
Zimmer, criteria as merely evidence od discriminatory intent
rather than the ultimate issue to be determined, it may properly

base a finding of discriminatory purpose upon such factors. A1so,

a court clearly should nnot limit its inquiry to such evidence.,

united states v. Marengo county com'nr 731 F.2d 1546 (1lth cir.
1984 ), vacated in part r r€versed in part and remanded;

united states v. Da11as county_com'n, 739 F.2d Lszg (1rth cir.
1984), affirmed in part, vacated in part and remanded; Lee County

Branch of NAACP v. city of opelika, 749 F.2d 1473 (r1th cir.
1984), vacated and remanded; McCarthy v. Henson 749 F.2d 1134

(5th cir. 1984), affirmed; Ketchum v. Byrne, 740 F.2d 139g (7th

cir. 1984), affirmed in partr r€versed in part and remanded;

velasquez v. city of Abilene Tex., 725 F.2d 1017 (5th cir. rgg4),

affirmed in part and remanded for futher findings of fact and

law; Jones v. Lubbackr T2T F.2d 364 95th cir. 1984), reversed in
part, dffirmed in part, finding that the charter commission

adopted an at-1arge system to exclude Black electoral
participation was clearly erroneous.