Rogers v Lodge Brief Amici Curiae

    No. 80-2100

I n  t h e

Supreme (Emirt nf tljp IttitPii £>tatpR
October T erm , 1981

Q u en tin  R ogers, et al.,
Appellants,

versus

H erman  L odge, et al.

ON APPE A R  FROM  T H E  U N ITED STATES 

COURT OF APPEALS FOR T H E  F IF T H  C IR C U IT

BRIEF AMICI CURIAE OF 
THE N.A.A.C.P. LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.
AND THE CONGRESSIONAL BLACK CAUCUS 

IN SUPPORT OF APPELLEES

J ack  Greenberg 
J ames M. N abrit, III 
L ow ell  J ohnston  
N apoleon B. W illiam s  
L an i G uinter 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amici

December 1981



TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES 
INTEREST OF AMICI .. 
SUMMARY OF ARGUMENT 
ARGUMENT ..........

I. THE ONLY QUESTION WHICH THE COURT 
SHOULD DECIDE IS WHETHER THERE WAS 
SUFFICIENT CIRCUMSTANTIAL EVIDENCE 
OF DEFENDANTS' DISCRIMINATORY PUR­
POSE TO ESTABLISH A VIOLATION OF FEDERAL LAW ...............

II. THE COURT OF APPEALS FOR THE FIFTH 
CIRCUIT PROPERLY RECOGNIZED THAT 
UNLAWFUL DILUTION OF A MONITORY 
VOTING STRENGTH WAS A VALID CAUSE 
OF ACTION AND CORRECTLY IDENTIFIED 
THE ELEMENTS WHICH EVIDENCE PROOF OF DILUTION ..............
A. Nature of the Claim for Relief .. 10
B. Evidence of Dilution of

Minority Voting Strength .......  16
C. The Zimmer Criteria and TheirSignificance ................... 1 9

D. Application of the ZimmerFactors to Prove Dilution ...... 22



11

PAGE

III. PLAINTIFFS' PRESENTED SUFFICIENT 
EVIDENCE TO PROVE THAT DEFENDANTS 
HAD A DISCRIMINATORY MOTIVE IN ADOPTING AND MAINTAINING BURKE 
COUNTY'S AT-LARGE SYSTEM FOR 
ELECTING COUNTY COMMISSIONERS ...... 26
A. Standards for Proving Intent .... 28
B. Applications of the Legal

Standards ...........   35

IV. THE THREE CHALLENGED VOTING
PRACTICES AND PROCEDURES PER­
PETUATE A PURPOSEFUL DENIAL OF 
ACCESS OF BLACKS TO THE POLITICAL 
PROCESES IN BURKE COUNTY AND MAY 
BE ENJOYED AS A REMEDIAL MEASURE .... 54

CONCLUSION 64



Ill

INTEREST OF AMICI

The N.A.A.C.P. Legal Defense and 
Educational Fund, Inc., is a non-profit 
corporation established under the laws 
of the State of New York. It was formed to 
assist black citizens to secure their con­
stitutional rights through the prosecution 
and defense of lawsuits. To carry out its 
purposes, the charter of the N.A.A.C.P. 
Legal Defense and Educational Fund autho­
rizes the organization to provide legal 
services gratuitously to black persons 
suffering injustice by reason of racial 
discrimination. For many years, attorneys 
of the Legal Defense Fund have represented 
parties in racial discrimination cases 
before this Court and the lower courts.

The Congressional Black Caucus is 
composed of the eighteen Black members



IV

of the United States House of Representa­
tives .

The Congressional Black Caucus be-
lieves that the right to vote i s o f
fundamental importance because i t i s
preservative of all rights. Yick Wo v .
Hopkins, 118 U.S. 356 (1886). The Congres­
sional Black Caucus, on behalf of its 
minority constituents, is concerned that 
the exercise of this fundamental right be 
equally accessible to all citizens, espe­
cially minority citizens whose right to 
vote was systematically denied in many 
parts of this country.

Because of its concern about election 
schemes that deny blacks on account of 
their race an effective voice in the 
governmental affairs of their country, 
state and community, the Congressional 
Black Caucus has an interest in the de-



V

velopment of a reasonable standard of 
proof for challenging such schemes.



TABLE OF AUTHORITIES

Page

Cases

Chapman v. King, 154 F.2d 460 (5th 
Cir.), cert, denied, 327 U.S.
800 (1946) ....................

City of Mobile, Alabama v. Bolden, 
446 U.S. 55 (1980) ............

50

3, 7, 8
9, 20,
22 , 26,
37, 48

Columbus Board of Education v.
Penick, 443 U.S. 449 (1979) ...... 56

Fortson v. Dorsey, 379 U.S. 433
(1965) ...........................  11

Green v. New Kent County School
Board, 391 U.S. 430 (1 963) .......  48

Keyes v. School District No. 1, 413U.S. 189 (1973 ) ................. 56
Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139 

(5th Cir. 1977)(en banc) cert.denied, 434 U.S. 968 (1977) ...... 49, 55, 58
Lodge v. Burton, 639 F.2d 1358

(5th Cir. 1981), appeal pending ...41, 47, 61

Louisiana v. United States, 380 U.S. 
145 (1965) ...................... 48, 64



1 1

Page

Cases

Milliken v. Bradley, 433 U.S. 267
(1977) ........................... 57,

Palmer v. Thompson, 403 U.S. 217
(1940) ...........................

Swann v. Charlotte Mecklenburg Bd. 
of Education, 402 U.S. 1 (1971) ...

Village of Arlington Heights v. 
Metropolitan Housing Develop­
ment Corp., 429 U.S. 252
(1977)  .........................  10,

32,
53

Washington v. Davis, 426 U.S. 229
(1976) ..... ...................... 10,

31,
Whitcomb v. Chavis, 403 U.S. 124(1971) ........................ . . .8, 11/ 12,

13, 14, 20
White v. Regester, 412 U.S. 755

(1972) ........................ . . .9, 11/ 15,
16, 19, 2055, 63

Wright v. Rockefeller, 376 U.S. 52 (1964) .....................

62, 63 

34 

56

28, 30, 
33, 47,

28, 30, 
35

10, 56



Ill
Page

Cases

Zimmer v. Mckeithen, 485 F.2d 1297 
(5th Cir. 1973)(en banc), 
aff'd on other grounds sub nom., East Carroll Parish 
School Board v. Marshall,424 O.S. 636 (1976) .............. 4 , 6, 1 6,

17, 21

Constitutions, statutes and regula­
tions ; ...........................
Fourteenth Amendment cited 

throughout

Fifteenth Amendment cited 
throughout

Voting Rights Act of 1965, as
amended, 42 'U.S .C. § 1973 ....... 2, 3, 3747

Georgia Code Annotated § 34-604 .... 50

Miscellaneous:
McCormick, Evidence (2nd Ed. 1972) .. 38
F.R.E. Rule 401 ................... .39, 50
F.R.E. Rule 404 ................... 40, 49, 50

Abbrevations;
The abbrevation J.S. refers to Appellant's 
Statement as to Jurisdiction.



No. 80-2100

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1980

QUENTIN ROGERS, et al.,
Appellants,

versus
HERMAN LODGE, et al.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF AMICI CURIAE OF THE N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
AND THE CONGRESSIONAL BLACK CAUCUS

SUMMARY OF ARGUMENT

This Court should affirm the judgment 
below of the Court of Appeals for the



2 -

Fifth Circuit invalidating the at-large 
election system in Burke County, Georgia 
on the grounds that it was purposefully 
maintained by defendents in order to 
minimize or cancel out the voting strength 
of black citizens, in Burke County.

Whether the applicable standard of 
liability under the Fourteenth Amendment, 
the Fifteenth Amendment, and Section 2 of 
the Voting Rights Act of 1965, as amended, 
42 U.S.C. § 1973, requires proof of inten­
tional racial discrimination or a showing 
of discriminatory "effects", need not be 
decided. Under either standard, plain­
tiffs appellees presented sufficient 
evidence to demonstrate that appellants 
purposefully have maintained the County's 
at-large system for racially discriminatory 
reasons.

The Fifth Circuit's judgment should 
also be affirmed on the ground that the



3

District Court's decree is a remedial 
measure to redress pre-existing violations 
of the Fourteenth and Fifteenth Amendments, 
and § 2 of the Voting Rights Act of 1 965, 
and to enjoin voting practices perpetuating 
an existent purposeful denial of minority 
access to the political process.

The only issues before this Court are 
whether the quality and nature of the evi­
dence presented at trial on the fact of 
dilution and purposeful discrimination were 
sufficient to satisfy appellees' burden 
of producing evidence, and whether the 
District Court's finding, affirmed by the 
Court of Appeals, that appellees had met 
their burden of persuasion, was clearly 
erroneous. Because appellees presented 
sufficient evidence of purposeful discri­
mination, this appeal can be determined 
without resolving issues left open in City



-  4

of Mobile, Alabama v. Bolden, 446 U.S. 55 
(1980), and without deciding whether proof 
of purposeful discrimination is an essen­
tial element of a claim for relief based 
upon impermissible vote dilution under the 
Fourteenth Amendent, the Fifteenth Amend­
ment, and § 2 of the Voting Rights Act of 
1965.

This appeal can also be decided with­
out determining the general circumstances, 
if any, under which the vote dilution 
criteria of Zimmer v. McKeithen, 485 F.2d 
1297 (5th Cir. 1 973) (en baric), aff'd on 
other grounds, sub nom., East Carroll Par­
ish School Bd. v. Marshall, 424 U.S. 636 
(1975), can be applied to identify circum­
stantial evidence relevant to proving a 
discriminatory purpose.

The facts in this case are extreme. 
They depict ongoing efforts by a white



5

minority, in a jurisdiction with a history 
of pervasive and continuous c3e jure dis­
crimination, to exercise plenary political 
dominion over a black majority. The means 
chosen to exercise this dominion include 
political and social isolation of the black 
majority, and denial or abridgement of their 
exercise of the franchise.

Through such means, local governmental 
leaders have perpetuated the purposeful 
denial of access of the black citizens of 
Burke County to the political process. 
This case is sui generis. It should be 
decided on its own special facts. These 
facts and the findings of the District 
Court require, as the Court of Appeals 
recognized, affirmance of the judgment 
below. Those findings are not clearly
erroneous.



6

ARGUMENT
I

THE ONLY QUESTION WHICH THE COURT 
SHOULD DECIDE IS WHETHER THE CIRCUM­
STANTIAL EVIDENCE OF DEFENDANTS' DISCRIMINATORY PURPOSE IS SUFFICIENT 
TO ESTABLISH A VIOLATION OF FEDERAL LAW ___________________

In their Statement As To Jurisdiction, 
appellants assert that this appeal presents 
a variety of issues for determination by 
the Court. The principal issue identified 
bY appellants for plenary consideration is 
whether, and when, the vote dilution 
criteria formulated by the court below in 
Zimmer v. McKeithen, supra, can be used to 
determine circumstances under which the 
quality and quantum of evidence in a "vote 
dilution" case will suffice to permit an 
inference that state or local officials



7

have adopted or retained for racially 
discriminatory purposes an at-large voting 
system which has an adverse impact upon 
black citizens.

Appellants also argue that Mobile v. 
Bolden invalidates use of the " Z immer" 
criteria, and other criteria employing 
what appellants deem to be an "effects" 
standard, as factors to prove purposeful 
discrimination. Subsumed under the Zimmer 
issue is a subsidiary question concerning 
the relevance of, and the weight to be 
accorded, evidence which shows unrespon­
siveness by the local legislatie body to 
the general needs of a minority group whose 
voting strength is diluted by an at-large 
system.

Appellants ask the Court to decide 
that "unresponsiveness" is a fact that is 
irrelevant to claims based upon dilution



8

of minority voting strength. Whatever the 
merits and the importance of these issues 
generally, plaintiffs' extensive evidence 
of defendants' discriminatory purpose 
obviates any necessity for resolving these 
issues.

To sustain the judgment below, this 
Court, like the Court of Appeals below, can 
indulge in the assumption that, under 
Mobile v Bolden, supra, federal standards 
governing vote dilution claims require 
proof that the challenged action was based 
upon a racially discriminating purpose. The 
correctness of this assumption, however, 
need not be determined for it clearly 
appears from the record that the evidence 
presented at trial was more than suf­
ficient to prove that defendants had the 
requisite discriminatory purpose.



9

This parsing of the questions pre­
sented reduces this appeal to a rather 
routine inquiry concerning the adequacy of 
circumstantial evidence to prove the 
elements of a claim for relief based upon
impermissible dilution of the voting

1/strength of a minority group. This 
issue was resolved by the Court of Appeals 
in accordance with principles developed by
this Court in City of Mobile v. Bolden;
Whitcomb v. Chavis, 403 U.S. 124 ( 1971);
White v. Regester, 4 1 2 U.S. 755 (1972);

V  Put more precisely, the actual issues presented by this appeal involve a deter­
mination of: (1) the scope of a federal 
district court's power, in an action based 
upon diminution or cancellation of minority 
voting strength, to regard proffered pieces 
of evidence as relevant to proof of the claim; and (2) the extent to which a 
federal district court can allow proof of 
the elements of a claim for vote dilution 
to be established through circumstantial 
evidence.



- 10

Washington V. Davis, 426 U.S. 229 (1976);
Village of Arlington Heights v. Metropoli­
tan Housing Development Corp., 429 U.S. 252 
(1977). See, also Wright v. Rockefeller. 
376 U.S. 52 (1964).

II

THE COURT OF APPEALS FOR THE FIFTH 
CIRCUIT PROPERLY RECOGNIZED THAT UN­
LAWFUL DILUTION OF A MINORITY GROUP'S 
VOTING STRENGTH WAS A VALID CAUSE OF 
ACTION AND CORRECTLY IDENTIFIED 
FACTS WHICH EVIDENCE PROOF OF DILUTION

A. Nature of the Claim for Relief
This Court, in numerous decisions, 

has recognized a citizen's rights under the 
Fourteenth and Fifteenth Amendments, to 
require governmental officials to refrain 
from using invidious means to "minimize or 
cancel out the voting strength of racial or 
political elements of the voting popula-



tion." Fortson v. Dorsey, 379 U.S. 433,
439 (1965). See, White v. Regester, 412
U.S. 755 (1972); Whitcomb v. Chavis, 403 
U.S. 124 (1971); Mobile v. Bolden, supra.

Early attempts, such as in Whitcomb v. 
Chavis, supra, to sue on a claim based upon 
impermissible dilution of a minority 
group's voting strength were initially 
rejected. The grounds for rejection were

- 1 1 -

2/

2/ In Fortson v. Dorsey, supra, this Court considered for t~FTe first time 
the validity of a cause of action based upon dilution of a minority group's voting 
strength. The Court said that:

It might well be that, de­
signedly or otherwise, a 
multimember constituency 
apportionment scheme, under 
the circumstances of a parti­
cular case, would operate to 
minimize or cancel out the voting strength of racial or 
political elements of the 
voting population. When this is demonstrated it will be 
time enough to consider 
whether the system still 
passes constitutional muster.
379 U.S. at 439.



varied. In Wh_i jtcomb_v_._Chavis , for
example, the claim was rebutted because 
( 1 ) the challenged multi-member districts 
were not "conceived or operated as purpose­
ful devices to further racial or economic

2/discrimination" and because the Court 
refused to accept the notion that the 
mere "fact that the number of ghetto 
residents who were legislators was not in 
proportion to ghetto population", consti­
tuted adequate proof of "invidious dis­
crimination absent, evidence and findings 
that ghetto residents had less opportunity 
than did other ... residents to participate 
in the political processes and to elect

- 12 -

3/ The Court concluded therefore that 
"there was no basis for asserting that 
the legislative districts in Indiana were designed to dilute the vote of mi­
norities." 403 U.S. at 412.



13

legislators of their choice."-
Whitcomb v. Chavis, supra, failed to 

resolve many of the important questions 
concerning the nature and description of 
the bundle of interests encompassed by the 
right to forestall government action which 
designedly minimizes or cancels out minor­
ity voting strength on the basis of race. 
It did, however, indicate a need to define

4 /

4/ 403 U.S. at 149. The Court said it:
discovered nothing in the record or in the court's findings indicating 
that poor Negroes were not allowed to 
register or vote, to choose the 
political party they desired to sup­port, to participate in its affairs 
or to be equally represented on those 
occasions when legislative candi­dates were chosen. Nor did the evi­
dence purport to show or the court find that inhabitants of the ghetto 
were regularly excluded from the slates of both major parties, thus 
denying them the chance of occupying legislative seats. 403 U.S. at 150.



14

more precisely the constituent elements of
the right and the nature of the comcomitant
. . 1/injury as well as a need to articulate

5/ In denying relief, the Court expressed some of the reasons for its reluctance to 
uphold plaintiff's assertion in Whitcomb of 
a claim for relief. The Court noted that "(t)he voting power of ghetto residents may 
have been 'cancelled out' as the District 
Court held, but this seems a mere euphemism 
for political defeat at the polls." 403 
D.S. at 153. The Constitution, said the 
Court, was not designed to protect racial 
and other minorities from "suffer(ing) the 
disaster of losing too many elections." 
Id. Moreover, the Court stated that it is 
not a denial of equal protection to deny 
legislative seats to losing candidates, 
even in those so-called 'safe' districts 
where the same party wins year after 
year." Id. In justifying this conclusion, 
the Court stated that:

The mere fact that one interest 
group or another concerned with 
the outcome of Marion County 
elections has found itself out­
voted and without legislative 
seats of its own provides no 
basis for invoking constitu­
tional remedies where, as here, there is no indication that 
this segment of the population is being denied access to the 
political system. 403 U.S. at 
155.



15

a distinction between an unlawful diminution
of a minority group's voting strength
and a disproportionate or continuous loss
of elections at the polls.

In White v. Regester, supra, the first
decision by the Court invalidating the
use of multimember districts on account
of their use to dilute minority voting
strength for invidious racial reasons, the
Court identified elements of the cause of
action and, citing Whitcomb v. Chavis,
described plaintiff's burden of proof in
the following terms:

( I ) t is not enough that the racial group allegedly discrim­
inated against has not had 
legislative seats in proportion 
to its voting potential. The plaintiffs' burden is to pro­
duce evidence to support find­ings that the political pro­
cesses leading to nomination 
and election were not equally 
open to participation by the 
group in question - that its 
members had less opportunity 
than did other residents in 
the district to participate



in the political processes and 
to elect legislators of their 
choice. 6/

B. Evidence of Impermissible Vote Dilution____________
Following the Supreme Court's decision 

in White v. Regester, the Fifth Circuit, in 
Zimmer v. McKeithen, supra, set forth what 
it termed "a list of factors that courts 
should consider in evaluating the constitu­
tional permissibility of voting practices

6/ The Court concluded, based upon Tts review of the evidence before the 
District Court, that the District Court had 
not unreasonably -found that "the black 
community has been effectively excluded 
from participation in the Democratic 
primary selection process" ... and was therefore generally not permitted to enter 
into the political process in a reliable 
and meaningful manner." 412 U.S. at 767. Similar findings and conclusions were 
reached by the Court with respect to the 
effects in Bexar County of the at-large 
system on Mexican-Americans. Implicit 
in this holding was a judgment by the 
Court that some form of vote dilution 
had occurred, that the injury was legally 
cognizable, and that it was unlawfully brought about by government officials.



-  17 -

alleged to discriminate against racial 
minorities." 485 F.2d 1297, 1305 (1973).
The factors were described in the following 
manner:

... where a minority can demon­
strate, a lack of access to the 
process of slating candidates, the 
unresponsiveness of legislators to 
their particular interests, a 
tenuous state policy underlying 
the preference for multi-member or at-large districting, or that the 
existence of past discrimination in general precludes the effective 
participation in the election 
system, a strong case is made. 
Such proof is enhanced by a 
showing of the existence of large 
districts, majority vote require­
ments, anti-single shot provisions 
for at-large- candidates running 
from particular geographical sub­
districts. The fact of dilution is established upon proof of the 
existence of an aggregate of these 
factors. The Supreme Court's 
recent pronouncement in White v. 
Regester, supra , demonstrates, 
however, that all these factors 
need not be proved in order to 
obtain relief.

485 F.2d at 1305.
The decision in Zimmer v. McKeithen,

supra, revealed glaringly how acute the



need was to provide a set of evidentiary 
standards for vote dilution claims based 
upon racial discrimination. Closely re­
lated to this need was the parallel need
to identify elements o f the cause of
action, especially elements of the claim
which establish proof of dilution of a
minority group's voting strength.

Since the Court of Appeals below 
purported to apply the Z immer criteria 
under circumstances in which the standard 
of liability was assumed to require proof 
of purposeful discrimination, it was neces­
sary for the Court of Appeals to determine 
how these criteria are relevant for deter­
mining when an injury for vote dilution 
exists and how they relate to proof of 
discriminatory intent.



C. The Zimmer Criteria and Their Signifi­cance for Establishing Voting Dilution

The five Z immer factors, apart from 
whatever relevance they may have at times 
for proving discriminatory purpose, bear 
significantly upon whether a minority group 
has been rendered helpless in protecting 
its political and social interests. To 
that extent, the Zimmer factors, derived 
from White v. Regester, are indicia of the 
extent to which a minority group's poli­
tical defeat at the polls cannot be at­
tributed to the rough and tumble of tradi­
tional politics. The Zimmer factors thus 
serve as determinants of the degree to 
which vote dilution has occurred and of the 
need for judicial review.

The severity and permanence of vote 
dilution are determined by the condition, 
history, and status of the affected minor­



20

ity group in the larger community. They 
are also a function of those character­
istics of the electoral process which 
magnify the ability of the dominant ma­
jority to utilize racial discrimination to 
minimize minority political influence and 
participation.

Nothing in City of Mobile v. Bolden 
affects this calculus. The opinion in 
Mobile did not focus on whether a dilution 
in black voting strength had occurred. 
Rather, the concern in Mobile was whether 
proof of a discriminatory purpose was an 
element of plaintiffs’ claim for relief.

The five factors which the Z immer 
Court of Appeals gleaned from White v . 
Regester and Whitcomb v. Chavis measure 
the uncouthness or "irrationality" of 
an electoral system which operates to 
diminish or exclude minority partici-



- 21 -

p a t i o n. See, Mobile v . Bolden , 446
U.S. at 86. (Stevens, J., concurring). The 
Z immer factors are important indicia of 
when the members of a minority group are 
likely to be subjected to political iso­
lation and to have common interests which 
cannot be expressed by taking joint poli­
tical action.

In addition to showing the degree of 
uncouthness and irrationality inherent in 
continued maintenance of a challenged elec­
toral system, these factors indicate the 
extent to which the system is maintained

7 /

7/ The use of a tenuous state policy to 
continue the effects of past discrimination against a minority whose access to the 
political process has been eliminated or curtailed by past discrimination is "un­
couth" and "irrational" when carried out by 
means of an electoral system whose special features are that they inhibit attempts by the minority group to gain access to the 
political process while helping to elect 
government officials and lawmakers who fail 
to exhibit good-faith concern for the 
political and other needs and aspirations 
of the minority group.



22

without neutral justification. They thus 
satisfy Justice Stevens' requirement for an 
objective test for measuring dilution. 
See, Mobile v. Bolden, supra, 446 U.S. at
90-91 (Stevens, J. concurring).

D. Application of the Zimmer Factors to
Prove Dilution__________ ____ _
Both the District Court and the Court 

of Appeals considered the extent to which 
black voting strength had been diluted 
in Burke County. The Court of Appeals 
referred to evidence of bloc voting which 
it found to be "clear and overwhelming". 
639 F. 2d at 1378. The existence of bloc 
voting, the Court noted, "enhances the 
likelihood that those seeking to manipulate 
the electoral system for discriminatory 
purposes will succeed". I_d . , n . 41.

Another circumstance evidencing 
dilution was the virtual non-existence of



23

black suffrage before 1965 when the Voting 
Rights Act was adopted. Also, as the 
courts below found, " [ i]nadequate and 
unequal educational opportunities, both in 
the past and present, as the result of 
official discriminatory acts" intensified 
the degree of dilution of black voting 
strength. 631 F.2d at 1378. A reason for 
the relationship between inadequate educa­
tion and dilution was given by an expert 
witness who testified at trial that 
"one reason Blacks . . . have been in­
effective in the political process, is the 
fact that they have completed less formal 
education". Id.

Further evidence of the effective 
exclusion of blacks from participation in 
the electoral process was found in the 
"past and present operation of the county's 
Democratic primary system and in the



24

Georgia law making it more difficult for 
Blacks to serve as chief registrar in a 
county." Id. The political isolation of 
blacks is reflected in the almost complete 
absence of blacks from the Burke County 
Democratic Executive Committee and their 
exclusion from the political process 
generally as a result of historical dis­
crimination practiced against blacks. 
Id.

Another significant fact which the 
Court found determinative of the presence 
of dilution was the depressed socio-econo­
mic status of blacks. 639 F.2d at 1378. 
Poverty, luck of equal employment oppor­
tunities, and inferior education, the 
District Court found, had a "direct nega­
tive impact on the opportunity for Blacks 
to effectively participate in the electoral 
process". I_d . at 1 379 . The Court of 
Appeals held that this finding was "not



25

clearly erroneous." Id.

the
Also found not clearly erroneous was 
District Court's finding that blacks

were unable, in part, to participate
meaningfully in at-large elections in Burke
County as a result of the:

social reality that person-to- person relations, necessary to 
effective campaigning in a rural county, was virtually 
impossible on an interracial 
basis because of the deep- 
rooted discrimination by Whites 
against Blacks. 639 F .2d at 
1379.

In this context , the large size of the
County, nearly two-th i rd s the size of
the State of Rhode Island, and the majority
vote requirement, in 
need for candidates 
seats and the lack 
quirement, increased

conjunction with the 
to run for specific 
of a residency re- 
the likelihood that

the electoral system would continue to 
exclude blacks from the political pro­
cess. This finding of the District Court



26

was held by the Court of Appeals to be 
"sound and well supported". 639 F. 2d at 
1381.

These findings, made in accordance 
with the Zimmer factors constitute adequate 
grounds for a finding that black citizens 
in Burke County have involuntarily suffered 
a substantial dilution in their voting 
strength. A substantial diminution in 
their available political opportunities, 
such as evidenced here, is a serious injury 
which warrants judicial review.

Ill

PLAINTIFFS' PRESENTED SUFFICIENT EVI­DENCE TO PROVE THAT DEFENDANTS HAD A 
DISCRIMINATORY MOTIVE IN ADOPTING AND 
MAINTAINING BURKE COUNTY'S AT-LARGE 
SYSTEM FOR ELECTING COUNTY COMMIS­SIONERS_____
On the basis of this Court's decision 

in Mobile v. Bolden, the Court of Appeals 
assumed that the governing constitutional



27

standard under the Fourteenth And Fif­
teenth Amendments to the Constitution of 
the United States requires a showing of 
discriminatory intent by defendants in 
order for plaintiffs to prove a claim for 
relief based upon unlawful dilution, or 
cancellation, of a minority group's voting 
strength.

Intent, amici curiae submit, is not 
an element of a claim for relief based upon 
dilution of minority voting strength. This 
question, however, need not be reached by 
the Court in the instant action since the 
nature and quality of the evidence pre­
sented at trial were sufficient to prove 
the existence of defendants' unlawful 
discriminatory intent to dilute or cancel 
out the voting strength of black citizens 
in Burke County.



28

A. Standards for Proving Intent.
In Washington v. Davis, 426 U.S. 229 

(1976) and Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 
429 U.S. 252 (1977), the Supreme Court held 
that the equal protection clause of the 
Fourteenth Amendment prohibits racial 
discrimination only when a discriminatory 
purpose is shown for the racially dis­
criminatory action. The Court further 
stated that none of its previous decisions 
had "embraced the proposition that a law or 
other official act, without regard to 
whether it reflects a racially discrimi­
natory purpose, is unconstitutional solely 
because it has a racially disproportionate 
impact". Washington v. Davis, 426 U.S. at 
239. This rule, said the Court was applic­
able to all claims involving racial dis­
crimination under the equal protection



29

clause of the Fourteenth Amendment.
The Court acknowledged in Washington 

v. Davis, supra, that the discriminatory 
purpose need not be expressed or appear 
on the face of the alleged discriminatory 
action. Actions otherwise neutral, the 
Court observed, might violate the equal 
protection clause in their application.

The Court in W ci s_h i_n g_ t_o _n_ v_._Davis
offered guidelines for establishing proof 
of the existence of a discriminatory 
purpose. It emphasized that a discrimina­
tory purpose could be proved by circum­
stantial evidence. 426 U.S. at 242. In 
Arlington Heights v. Metro Housing Corp., 
supra, however, the Court recognized the 
difficulty in proving a discriminatory 
purpose and pointed out that "[d]etermining 
whether invidious discriminatory purpose 
was a motivating factor demands a sensitive



30

inquiry into such circumstantial and direct 
evidence of intent as may be available". 
429 U.S. at 266.

The Court, in Washington v, Davis and 
Arlington Heights, gave several illustra­
tions of the means by which circumstantial 
evidence might be used to establish the 
existence of a discriminatory intent. As 
one example, the Court noted that "an in­
vidious discriminatory purpose may often 
be inferred from the totality of the rele­
vant facts, including the fact, if it is 
true, that the law bears more heavily on 
one race than another." Washington v. 
Davis, 426 U.S. at 242. An inference of 
this nature might be made, the Court said, 
whenever the circumstances and the discrim­
inatory impact demonstrate, as a practical
matter, that the discrimination cannot be 
explained on nonracial grounds. Id.



31

The Court emphasized that an inference 
of discriminatory purpose might emerge in 
two different ways. First, the inference 
might be drawn when a clear pattern 
emerges that is "unexplainable on grounds 
other than race" even though the action is 
otherwise neutral on its face. Arlington 
Heights, 429 U.S. at 266. Second, an 
inference of discriminatory intent might be 
based upon what appears to be a "single 
invidiously discriminatory government act." 
Id., n. 14.

Next, the Court stated that the his­
torical background of the discriminatory 
action might be used as circumstantial evi­
dence to prove intent. Arlington Heights, 
429 U.S. at 267. In particular, it said 
that "[t]he specific sequence of events 
leading up to the challenged decision also 
may shed some light on the decision-maker's



32

purposes". Id. As an example, it pointed 
out how

"[d]epartures from the normal 
procedural sequence also might afford evidence that improper 
purposes are playing a role. 
Substantive departures too may be relevant, particularly if 
the factors usually considered 
important by the decision­
maker strongly favor a decision contrary to the one reached. 
Arlington Heights at 267.
Finally, the Court emphasized that the 

legislative or administrative history of a 
law will sometimes be relevant for proving 
intent. The Court recognized, however, the 
difficulties which' would arise if legisla­
tors were compelled to testify about the 
purposes which they and other legislators 
were pursuing when enacting the law or 
which would arise if they were compelled 
to recall contemporary statements made by 
them or the other members of the legisla- 

In citing the need and availabilityture.



33

of such testimony, the Court recognized 
that it would be necessary to depart
from the normal rules barring the use or

8/compulsion of such testimony. Arlington 
Heights, 429 U.S. at 268.

The Court's enumeration of the various 
ways in which discriminatory intent can be 
proved was illustrative, and not intended 
to be exhaustive. It confirmed, however,

8/ On the other hand, the evidentiary inquiry should not focus exclusively or 
primarily on direct evidence of illicit 
legislative motive since such evidence is 
"difficult or impossible" to obtain. 
Palmer v. Thompson , 403 U.S. 217, 225( 1 9 4 0 ). See MobFle v Bolden , supr_a , 
446 U.S. at 134 (Marshall, J. dissenting). Here, the adoption of the challenged 
practices took place in a legislative body that kept no records, at a time so 
remote that no contemporaneous witnesses 
are still alive. Since the passage of the 
1965 Voting Rights Act, legislators have 
become too sophisticated to acknowledge 
illegal motives. To require direct evi­
dence of legislative purpose would pro tanto repeal the Fifteenth Amendment for 
black citizens in Burke County.



34

that the Court's imposition of an intent 
standard was not designed to constitute 
an insurmountable obstacle to successful 
prosecution of racial discrimination claims 
under the Fourteenth Amendment. It also 
confirmed that traditional evidentiary- 
rules governing the use of circumstantial 
evidence are applicable for proving the 
existence, in racial discrimination cases, 
of a discriminatory motive.

B . Application of the Legal Standards 
Neither Washington v. Davis nor Ar­

lington Heights was a vote dilution case. 
The problem posed by vote dilution cases is 
how the principles of Washington v. Davis 
and Arlington Heights are to be articulated 
and applied in the context of an action in 
which the essential claim is that an 
electoral system is maintained to minimize 
or dilute minority voting strength.



35

In its application of these princi­
ples, the Court of Appeals conceded at the 
outset that satisfaction of the Zimmer fac­
tors did not per se imply, in each and 
every circumstance, that the defendants had 
acted with the requisite discriminatory 
intent. On the other hand, the Court of 
Appeals left open the possibility that 
satisfaction of the Zimmer criteria might, 
in some cases, be sufficient, when con­
sidered in conjunction with other credible 
evidence, to establish proof of a discrimi­
natory purpose in the maintenance of an 
at-large system.

What is relevant, therefore, is not 
the name which the Court of Appeals used 
either to characterize the evidence or to 
designate the evidentiary criteria which it 
applied, but rather the nature of the 
evidence itself and its relevance to



36

proving the elements of the cause of 
action.

Designations such as "Zimmer factors", 
"dilution of minority voting strength", and 
"existence of a discriminatory purpose", 
cannot be used to obscure the fact that 
this case must be tried and determined in 
accordance with the same evidentiary rules 
which are used for the trial of cases. 
Even if this Court's decision in Mobile v. 
Bolden is read as imposing an intent 
standard under the Fourteenth Amendment, 
the Fifteenth Amendment, and section 2 of 
the Voting Rights Act of 1965, there is 
nothing in any of the various opinions 
written in Bolden which suggests that a 
special or jad hoc set of evidentiary 
standards is to be applied in vote dilution 
cases to determine the relevance and 
suffficiency of evidence.



37

The evidence presented by plaintiffs 
and reviewed by the courts below was 
admissible evidence under the Federal 
Rules of Evidence. Rule 402 of the Federal 
Rules of Evidence adopts the general prin­
ciple that "[a]ll relevant evidence is ad­
missible". Relevant evidence is defined by 
Rule 401 as "evidence having any tendency 
to make the existence of any fact that is 
of consequence to the determination of the 
action more probable or less probable than 
it would be without the evidence". See, 
also McCormick, Evidence (2nd Ed. 1972).. 
One question therefore which a case of this 
nature presents is whether evidence prof- 
ferred at trial is relevant within the 
meaning of Rule 401.

Relevancy in this trial, as in others, 
cannot be determined without asking the 
question "Relevant to what"? Unlike the



38

case in most other actions, there is no 
real issue here as to whether the defen­
dants performed the act in question. It is 
undisputed that these defendants maintain 
the present at-large system for electing 
county commissioners in Burke County.

What is at issue is not this fact but 
their purpose in adopting and maintaining 
this system. More specifically, the issue 
is whether defendants' purpose in adopting 
or maintaining the at-large system is 
racially discriminatory. Relevancy there­
fore is directed to this issue. Evidence 
is admissible on this issue if it has a 
tendency to make the existence of purpose­
ful discrimination more probable or less 
probable than it would be without the 
evidence.

In the context of an action for vote 
dilution, Rule 401 makes defendants'



39

motive, or intent, a relevant inquiry. 
Evidence tending to establish motive or 
intent is thus relevant. Rule 404(b) of 
the Federal Rules of Evidence provides some 
guidance on the type of evidence which can 
be used to prove intent and motive. It 
states that evidence of other crimes, 
wrongs, or acts are admissible for "proof 
of motive, opportunity, intent, prepara­
tion, plan, knowledge, identity, or absence 
of mistake or accident". Such evidence, 
however, cannot be used to prove that a 
specific act was performed. The existence 
of other bad acts or wrongs can however 
be used as circumstantial evidence for 
determining the intent or motive with which 
a defendant acted.

In applying these rules to the facts 
of the present appeal, we see first that 
both direct and circumstantial evidence may



-  40  -

be used, and secondly that evidence of 
prior wrongs and bad acts may be considered 
in determining the nature of defendants' 
purpose. The latter is particularly 
important in evaluating the significance of 
defendants' other racially discriminatory 
actions.

Rules 401 and 404 are especially im­
portant in vote dilution cases. Legisla­
tors are too sophisticated, since the 
passage of civil rights laws, to leave 
direct evidence of their discriminatory 
purposes lying around waiting to be dis­
covered. Courts recognize, however, 
that the "right to redress does not turn 
on the degree of subtlety with which a 
discriminatory plan is effectuated." Lodge 
v. Buxton, 639 F.2d at 1 358. For this 
reason, the Courts of Appeals below held 
that " [c]ircumstantial evidence, of nec­



41

essity, must suffice, so long as the 
inference of discriminatory intent is 
clear." Id.

Plaintiffs presented substantial 
evidence at trial to show that defendants 
acted with a discriminatory purpose in 
using Burke County's at-large system to 
exclude or lessen participation by blacks 
in the benefits of the electoral franchise. 
The Court of Appeals considered this evi­
dence only for the purpose of showing that 
the County's system of at-large representa­
tion was maintained for an unlawful dis­
criminatory purpose. It assumed, on the 
ground that the at-large laws were adopted 
at a time when blacks were prohibited from 
exercising the franchise, that they 
were not adopted to minimize black politi­
cal participation.



42

By indulging this assumption, the 
court excluded evidence which favored 
plaintiffs. This was error. Given Burke 
County's denial in 1911 of the franchise to 
blacks, the more probable assumption was 
that county officials intended to limit 
black political participation whenever 
possible. They could have reasonably 
assumed that their denial of the franchise 
to blacks could not continue indefinitely. 
Indeed, the District Court should have 
inferred that county officials in 1911 
probably assumed that their ability to deny 
the franchise would become less effective 
over time, especially, as the attacks on 
their practice mounted in strength.

Faced with such a prospect, county 
officials in Burke County may well have 
assumed that adoption in 1911 of an at- 
large system was the only way to prolong 
their otherwise episodic supremacy over a



43

majority black population. Since blacks 
constituted then a majority of the popula­
tion, the adoption in 1911 of an at-large 
system had advantages superior to those of 
a single-member districting system.

With a single member districting 
system, the large number of black citizens 
in the County would guarantee that blacks 
would be able to gain immediate control in 
one or more of the single member districts. 
Over time, more districts would be repre­
sented by blacks since black registration 
figures were bound to increase with the 
passage of time. Democracy's gain would 
here be a loss for white supremacy.

An at-large system in 1911 would have 
none of these disadvantages since it would 
avoid a sharing of political control 
between blacks and whites, at least until 
the number of black registered voters began



44

to approximate the number of white re­
gistered voters. The adoption of an 
at-large system in 1911 was therefore an 
option well suited for maintaining the 
reins of government in the hands of white 
citizens at the expense of black citizens. 
Thus, it cannot be assumed that at-large 
schemes adopted during the denial of the 
franchise to blacks, are for that reason 
alone, immune to challenges that they were
adopted to minimize or cancel out minority

1/voting strength.

9/ Plantiff's proof that the at-large electoral system was adopted when blacks were denied the franchise is, therefore, 
"some evidence" that the system was adopted for the purpose of perpetuating the effects of past discrimination. Since the courts 
below took a contrary view of the signifi­
cance of the adoption of the at-large system during an era when blacks were not 
permitted to vote, plantiff's evidence 
concerning defendants' discriminatory intent was thus never fully assessed by the 
District Court and the Court of Appeals. 
Failure to take it into account may warrant a remand if the judgment below is not 
affirmed.



45

Both the District Court and the Court 
of Appeals regarded the virtual absence of 
black suffrage before the passage in 1965 
of the Voting Rights Act as a critical 
factor. Also critical was the increase 
during the short period from 1965 to the 
present of black suffrage, measured 
in terms of registered voters.

Starting from a base of almost zero, 
the percentage of black registered voters 
is today somewhere between 38% - 44% of the 
black population. This phenomenal fact, 
brought about solely through federal 
intervention on the side of black suffrage, 
warranted a finding, and the District Court 
so found, that:

the marked increased in the registration Blacks following 
the enactment of the 1965 Voting Rights Act clearly in­dicates that past discrim­
ination has had an adverse 
effect on Black voter regis­tration which lingers to this



46

date. 9 / Order at p. 7. Also, see Lodge v. Buxton, 639 at 1378.
This evidence of the change in the

availability of the franchise to black
citizens in Burke County is relevant on
two points. First, it provides cumulative
evidence that the entire electoral process
in the county was used systematically to
deny and curtail the right of blacks to
vote.

It thus evidences a massive violation 
of the Fourteenth Amendment, the Fifteenth

9/ Technically speaking this is not the type of procedural or substantive depar­
ture from normal practice which is included in the list of criteria provided in Arling­
ton Heights. It is, however, within the 
spirit of what the Arlington Court contem­
plated as factors relevant to proving intent. The departure here is not between 
what local law was before and what it was after 1 965, but between two time periods, 
one in which the County and the State claim 
that they were not discriminating on the basis of race, and one in which federal law 
must intervene to prevent further discrimi­
natory state action adversely affecting the exercise of the franchise by blacks.



47

Amendment, and section 2 of the Voting 
Rights Act. It also causes the focus of 
this case to shift from the question of 
whether maintenance of the at-large system 
is a violation of federal law because of 
the purpose in maintaining it, to the 
question of whether the dismantling of the 
at-large system is a remedial measure 
for redressing systemic violations of the 
right of blacks to exercise the franchise. 
See, Green v. New Kent County School Board, 
391 U.S. 430, 437-38 (1963),—  Louisiana

9/ footnote (continued)
The contrast between the two time periods, 
and the events occurring therein, is 
probative of whether defendants restrict the exercise of the franchise by blacks. 
The implication, of course, is that federal intervention was required to prevent 
Burke County from denying the franchise to black citizens. This is a fair inference 
from the evidence. This circumstance distinguishes the present action from that 
in Mobile v. Bolden.



48

v. U.S., 380 U.S. 145, 154 (1965); Kirksey
v. Board of Supervisors of Hinds County, 
554 F.2d 139 (5th Cir. ) (en banc) , cert.
denied , 434 U.S. 968 ( 1 977 ). See also
Section IV, infra,.

The second point to which this evi-
dence goes is defendants' motive for
gaging in such massive denial o f
franchise to blacks. Obviously, there is 
evidence here that defendants had a dis­
criminatory motive in their de jure denial 
of the franchise. Under Rule 404(b) of the 
Federal Rules of Evidence, this evidence is 
admissible to prove defendants' motive, or 
intent, with respect to similar actions 
having a discriminatory impact upon black 
voters in Burke County, such as maintaining 
the county's at-large system.

Other evidence showing the exclusion 
of blacks from the political process was 
considered in great detail by the Court of



49

Appeals. For example, the Court considered 
the State's use of the "white primary", 
subsequently struck down by this Court in 
Chapman v. King, 154 F.2d 460 (5th Cir.), 
cert. denied, 327 U.S. 800 (1946). It also 
assessed the purposes which legislatures 
had in mind in enacting a law making it 
difficult for blacks to serve as a chief 
registrar in a county in Georgia. See Ga. 
Code Ann. § 34-605.

Also assessed were the circumstances 
which contributed, in part, to the virtual 
exclusion of blacks from the Burke County 
Democratic Executive Committee. These were 
relevant factors, under Rules 401 and 
and 404 of the Federal Rules of Evidence 
for determining the defendants' motives in 
maintaining the present electoral system.

Much of appellants ' attack on the 
judgment below stems from the probative 
value attributed by the Court of Appeals'



50

to evidence presented by plaintiffs showing 
that County officials with legislative and 
administrative responsibilities were 
unresponsive to the general and particular 
interests of black citizens in carrying out 
their duties. Appellants question in this 
appeal both the relevance of this evidence 
and the weight which may have been attri­
buted to it as an indicator of defendants' 
intent to discriminate.

As amici demonstrated earlier in this 
brief, evidence of unresponsiveness is 
always relevant on the fact of dilution. 
It may, however, as in the present case, 
sometimes be relevant to proving the 
existence of a discriminatory purpose.

Where evidence is offered in a vote 
dilution case to show that legislators are 
unresponsive to the compelling legitimate 
interests of a sizable racial or ethnic



51

minority, and that it is indifferent to the 
adverse consequences which an at-large 
electoral scheme may have upon the members 
of that minority, then it is natural to 
inquire why the gross indifference exists 
and whether the evidence which shows the 
existence of the unresponsiveness is 
evidence which also shows that the legis­
lature is engaging in purposeful racial 
discrimination against members of the 
minority group in other areas of life. The 
answers to questions such as these is what 
determines in a "specific case whether 
particular items of evidence which show 
unresponsiveness are relevant to proving 
that defendants had the requisite discrim­
inatory intent.

In the instant action, the evidence 
showed that defendents and other public 
officials were unresponsive to black



52

interests in almost every major segment 
of political and social life, such as 
voting, schools, employment, appointments 
to public office, municipal services, etc. 
The unresponsiveness was of such breadth 
and magnitude that the Court of Appeals 
properly deemed the County Commissioners' 
insensitivity to be unexplainable except 
"as a conscious and willful effort on their 
part to maintain the invidious vestiges of 
discrimination." 639 F.2d at 1 377. See, 
Arlington Heights, 429 U.S. at 266.

The totality of defendants' unrespon­
siveness was sufficiently extreme that the 
Court of Appeals concluded that to find 
anything other than a conscious effort to 
maintain the invidious effects of racial 
discrimination "would be to fly in the face 
of overwhelming and shocking evidence". 639 
F. 2d at 1377. Under the Arlington Heights



53

criteria, it was appropriate for the courts 
below to draw such an inference. In sum, 
the Court of Appeals, in assessing the 
District Court's evaluation and weighing 
of the evidence, did no more than to 
attribute to the evidence, including evi­
dence on unresponsiveness, the probative 
value and significance which the evidence 
was entitled to receive in reason, logic 
and experience.

IV

THE THREE CHALLENGED VOTING PRACTICES AND PROCEDURES 
PERPETUATE A PURPOSEFUL DENIAL 
OF ACCESS OF BLACKS TO THE 
POLITICAL PROCESSES IN BURKE COUNTY AND MAY BE ENJOINED AS 
A REMEDIAL MEASURE

The judgments of the courts below are 
also sustainable as an appropriate and 
necessary remedy of an extant constitu­



54

tional violation of the Fourteenth and
±0/Fifteenth Amendments.

The District Court found that the 
system for electing County Commissioners 
perpetuated an existing purposeful denial 
of any opportunity for blacks to partici­
pate in the county government. These 
factual findings were upheld by the Court 
of Appeals.

Under the approach of WhJ^e^v^ 
Regester, supra as developed in Kirksey v. 
Board of Supervisors of Hinds County, 554
F.2d 139 (5th Cir. 1 977) (en banc) cert. 
denied, 434 U.S. 968 ( 1 977), the relevant
inquiry for a "remedy" case is whether the

10/ We do not address in this brief the question whether the three challenged 
voting practices also abridge the rights 
of black voters in violation of Section 2. of the Voting Rights Act simply because 
of their discriminatory effect. On that question, we incorporate by reference, Brief for Georgia Association of Black 
Elected Officials, et al. as Amici Curiae, 
Rogers v. Lodge, No. 80-2100.



55

challenged voting practices continue prior 
purposeful voting rights violations. While 
a plurality of this Court has held in City 
of Mobile v. Bolden, that a showing of 
racial motivation is a necessary ingre­
dient of a Fourteenth or Fifteenth Amend­
ment violation, a majority of the Court has 
held, in other areas of racial discrimi­
nation, that once a de jure constitutional 
violation is shown, the state's actions 
will be judged by the continuing effects 
of its past, purposeful conduct. Keyes v. 
School District No. 1, 413 U.S. 189 (1973); 
Wright v. Council of City of Emporia, 407 
U.S. 451, 462 (1972); Swann v. Charlotte-
Mecklenburg Bd. of Education, 402 U.S. 1, 
26(1971). See also, Columbus Board of 
Education v. Penick, 443 U.S. 449, 538-39
( 1 979) .

If analyzed therefore as a remedy 
case, given the record of past, purpose-



56

ful racial discrimination and official 
unresponsiveness, the District Court's

II/findings, and the long history of
racial discrimination by appellants and 
the State of Georgia, the standard for 
appellate review is simply whether the 
remedy imposed by the district court was 
justified and appropriately tailored to 
cure the "condition which offends the 
Constitution." Milliken v. Bradley, 433 
U.S. 267 (1977).

Having determined that blacks in Burke 
County were historically denied an oppor-

1 _1_/ The District Court made specific findings concerning the way in which 
the three voting practices in question -- (1 ) at-large voting, (2 ) numberedpost requirement, and (3) majority run­
off -- perpetuate the effects of past, de jure racial discrimination in Burke 
County (J.S. 71a-77a, 92a-93a). The
District Court also found that the offi­
cials responsible for governing Burke County have acted to maintain the inequi­
ties created by that past discrimination. (J.S. 77a-82a)



57

tunity to participate in the County govern­
ment and were intentionally excluded from 
the electoral process, the District Court 
carefully examined the nexus between that 
prior history and appellees' continued in­
ability to participate effectively in the
political process. The court found a link

12/between past purposeful discrimination 
and (1 ) low black voter registration and 
participation (J.S. 71a-72a); (2) racial
bloc voting by whites against any black 
candidate or any white candidate identified 
with the interests of the black community 
(J.S. 72a-73a); (3) barriers to black
candidacies stemming from the "personal 
contacts politics of Burke County" (J.S.

12/ "This litany of past history -- much of it relating to official action —  also 
commands a conclusion that in signifi­
cant aspects it was purposeful and inten­tional," Kirksey v. Board of Supervisors, 
554 F2d at 144.



58

88a-89a); (4 ) the low socio-econ­
omic status of blacks as a group and the 
size of the county, in combination with the 
numbered-post and majority vote run-off 
requirements, and (4) the exclusion of 
blacks from county government based on the 
Commissioners' failure to appoint blacks to 
committees and boards in a meaningful 
fashion (J.S. 78a) and the Commissioners'
racially discriminatory pattern of decision 
making in the distribution of public goods 
and services (paving county roads, J.S. 
79a; county hiring, J.S. 79a; donation of 
county funds to buy band uniforms for the 
all-white private school, J.S. 82a).

13/ "...Blacks are shut out of the normal course of politics in this tightly-knit 
rural county...(given) the virtual segre­gation of all social, religious, and busi­
ness organizations." (J.S. 89a)



59

The record shows, and the District 
Court found, that the relationship between 
the past purposeful discrimination and 
present conditions is not remote. (See, 
e.g. discriminatory exclusion of blacks 
from Grand Jury until 1977, abated only 
after litigation, J.S. 75a; The existence 
of unpaved roads to the predominantly black 
school, J.S. 80a; failure to establish 
additional registration sites for more than 
a few months and only after a pre-trial 
conference, J.S. 81a; disproportionately 
low registration rate of blacks even after 
the passage of the Voting Rights Act of 
1965, J.S. 72a; virtually "lily-white" 
Democratic Party County Executive Committee 
despite a clear mandate from national and 
state charters, J.S. 8 8 a; segregated public 
facilities and places of public accommoda­
tion until the 1960's, segregated schools



60

until 1969, and some schools still essen-
1 4 /tially segregated, J.S. 7 4 - 7 6 a ) .

Although the explicit disfranchising 
requirements in Burke County have been 
suspended by federal legislation or aban­
doned after litigation, and although 
appellants have recently ceased many of the

14/ In its Brief for United States as 
Amicus Curiae, Lodge v. Buxton, 639 f.2d 1358, States observes that the relationship 
between the past discrimination and present 
conditions in Burke County is not atten­uated. "The court below noted that 99% of the black residents of Burke County and 
over 75% of the white residents were 
born in Georgia. Enforcement of the racially discriminatory laws, customs 
and practices...by the State and its 
agencies did not cease until the late 1960's in some instances and even later in
others. Thus, virtually all of the black residents of voting age in Burke County and 
three-fourths or more of such white resi­
dents have been subjected throughout their lives to a social and legal structure 
founded on the proposition 'that the 
Negro is in no respect the equal to the white man', "Brief for United States at 28 (citations omitted).



61

overtly racial practices described at 
length in appellees' brief and the opinions 
below, the courts below concluded that 
appellants have "never actively set out to 
eliminate the consequences of...past in­
tentionally ...[discriminatory] policies."
C c ^ ^ m b _ u £ _ B _ o _ n _ v _ . _Penick ,
supra, 443 U.S. at 461. Where a defendant 
has violated the constitutional rights of a 
minority group on account of race, discon­
tinuation of the violation is not an ade­
quate remedy if conditions flowing from the 
constitutional violation continue to 
disadvantage the victims of the violation. 
Milliken v. Bradley, supra, 433 U.S. at 
281-82.

The District Court determined, and the 
Court of Appeals affirmed, that blacks 
continue to be excluded from participation 
in the political and governmental processes



62

of Burke County as a result of both the 
lingering effects of recent prior discrimi­
nation and the continued use of the three

15/challenged voting practices. Enjoin­
ing the use of those voting practices was, 
therefore, justified as an appropriate and 
proper exercise of the court's remedial 
power. White v-. Regester, supra, 412 U.S. 
at 765-70 ; Milliken v. Bradley, supra, U.S.

15/ While a plurality of this Court in 
Mobile rejected an "effects" standard for 
proving a violation under the Fourteenth and Fifteenth Amendments, the Court in 
M o_b_i 1_e specific a 1 ly declined to over­rule White v. Regester, supra, where a 
unanimous Court endorsed the use of single­member districts "to remedy the effects" 
of past discrimination against Mexican- Americans. 412 U.S. at 769. For an 
extended discussion of the general con­
stitutional principles involved in framing equitable remedies, £ _e e Brief for the 
United States as Amicus Curiae Lodge v. 
Buxton, supra, at 19-25. See, also, Brief for the Lawyers' Committee for civil Rights Under Law as Am ,i_c_u s_ Curiae , Rogers v . 
Lodge, No. 80-2100, at 16ff.



63

at 282 (1977); Louisiana v. United States,
1 6/380 U.S. 145, 154 (1965).—

CONCLUSION
For the reasons stated above, the 

judgment of the Court of Appeals should 
be affirmed.

Respectfully submitted

JACK GREENBERG 
JAMES M. NABRIT, III 
LOWELL JOHNSTON NAPOLEON B. WILLIAMS, JR. LANI GUINIER
Suite 2030 
'10 Columbus Circle New York, N.Y. 10019 (212) 586-8397

Counsel for Amici Curiae

16/ (T)he Court has not merely the power but the duty to render a decree which will 
so far as possible eliminate the discrim­inatory effects of the past as well as bar 
like discrimination in the future." Louisiana v. United States, id. at 154.



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