Whitfield v. Clinton Appendix to the Petition for a Writ of Certiorari

    No. 90-

In The

Supreme Court of tf)e ^Hniteb H>tate£
October Term, 1990

Sam Whitfield, J r ., L inda Whitfield ,
P.L. Perkins, J ulious McGruder,

Georgia M. Varner, Annie Sykes,
Ollie J ennings, and Sam Bennett,

Petitioners,
v.

Bill Clinton, Governor of Arkansas,
W.J. McCuen, Secretary of State of Arkansas,

The Phillips County Board of Election Commissioners, 
The Democratic Party of Arkansas,

The Democratic State Committee, and 
The P hillips County Democratic Committee,

Respondents.

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

Olly Neal 
Neal Lawyers 
33 North Poplar Street 
Marianna, Arkansas 72360 
(501) 295-2578

J ulius L. Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 
Sherrilyn A. Ifill 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900
C. Lani Guinier*
University of Pennsylvania 

Law School 
3400 Chestnut Street 
Philadelphia, PA 19104-6204 
(215) 898-7032
P amela S. Karlan 
University of Virginia 

School of Lawr 
Charlottesville, VA 22903 
(804) 924-7810
Attorneys for Petitioners 
*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



TABLE OF CONTENTS

EIGHTH CIRCUIT COURT OF APPEALS’
OPINION UPON REHEARING EN BANC la

EIGHTH CIRCUIT COURT OF APPEALS’
PANEL OPINION 3a

MEMORANDUM OPINION OF THE DISTRICT 
COURT DISMISSING PETITIONERS’ 
CHALLENGE TO THE PRIMARY 
RUNOFF STATUTE 58a

ORDER DISMISSING THE GOVERNOR AND 
SECRETARY OF STATE AS 
DEFENDANTS 132a

RELEVANT PORTIONS OF THE DISTRICT
COURT’S ORAL RULINGS 135a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF 
ARKANSAS EASTERN DIVISION 
TELEPHONE CONFERENCE 145a



COURT OF APPEALS’ OPINION UPON 
REHEARING EN BANC

Sam Whitfield, Jr., Linda Whitfield, P.L. Perkins, Julious 
McGruder, Georgia M. Varner, Annie Sykes, Ollie Jennings, 
and Sam Bennett, Appellants.

v.

The Democratic Party of the State of Arkansas, the State of 
Arkansas Democratic Central Committee, the Phillips County 
Democratic Central Committee, and the Phillips County 
Republican Party Committee, Appellees.

No. 88-1953.

United States Court of Appeals,
Eighth Circuit.

Submitted April 10, 1990.

Decided May 4, 1990.

Appeal from the United States District Court for the 
Eastern District of Arkansas; G. Thomas Eisele, District 
Judge.

Carol Lani Guinier, Philadelphia, Pa., for appellants.

Tim Humphries, Little Rock, Ark., for appellees.

Before LAY, Chief Judge, BRIGHT, Senior Circuit 
Judge, MCMILLIAN, ARNOLD, JOHN R. GIBSON,



- 2a -

FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, 
Circuit Judges.

PER CURIAM.

In this matter, a panel of this court, Judge Bright, 

dissenting, reversed the Judgment of the district court. 

Whitfield v. The Democratic Party. 890 F.2d 1423 (8th Cir. 

1989). After rehearing en banc, the judgment is now 

affirmed by an equally divided court. Judges Bright, Arnold, 

Bowman, Wollman and Magill vote to affirm the district 

court. Chief Judge Lay and Judges McMillian, John R. 

Gibson, Fagg and Beam would reverse. The Clerk of the 

Court is directed to issue the mandate forthwith.



- 3a -

COURT OF APPEALS’ PANEL OPINION

Sam Whitfield, Jr., Linda Whitfield, P.L. Perkins, Julious 
McGruder, Georgia M. Varner, Annie Sykes, Ollie Jennings, 
and Sam Bennett, Appellants.

v.

The Democratic Party of the State of Arkansas, the State of 
Arkansas Democratic Central Committee, the Phillips County 
Democratic Central Committee, and the Phillips County 
Republican Party Committee, Appellees.

No. 88-1953.

United States Court of Appeals,
Eighth Circuit.

Submitted June 14, 1989.

Decided Dec. 7, 1989.

Carol Lani Guinier, Philadelphia, Pa., for appellants. 

Tim Humphries, Little Rock, Ark., for appellees. 

Before BEAM, Circuit Judge, BRIGHT, Senior Circuit 

Judge and HANSON,* District Judge.

The HONORABLE WILLIAM C. HANSON, Senior 
United States District Judge for the Northern District of Iowa, 
sitting by designation.



- 4a -

BEAM, Circuit Judge.

Whitfield and other appellants, black voters in Phillips 

County, Arkansas, challenge the district court’s dismissal of 

their complaint. Whitfield sued the Democratic Party of 

Arkansas and others, alleging that a state statute which 

requires a general (runoff) primary election if one candidate 

does not receive a majority of the vote is both unconstitutional 

and in violation of section 2 et seq. of the Voting Rights Act 

of 1965, 42 U.S.C. § 1973 et seq. (1982). We affirm in part 

and reverse in part.

I. BACKGROUND

A. Facts

The population of Arkansas is approximately 16.3 

percent black. Approximately 47 of the 75 counties in 

Arkansas have black populations below this statewide 

percentage, and twenty-one counties are less than one percent 

black. Twenty-two counties have a black population over



- 5a -

twenty-five percent.

The state has a history of official discrimination in its 

electoral process. Arkansas has used racially discriminatory 

voting practices such as statutory restrictions on the rights of 

blacks to vote, discriminatory literacy tests, poll taxes, a 

"whites only" Democratic primary, segregated polling places, 

and at-large elections. Perkins v. City of West Helena. 

Arkansas. 675 F.2d 201, 211 (8th Cir.), aff’d mem.. 459 

U.S. 801, 103 S.Ct. 33, 74 L.Ed.2d 47 (1982). See also 

Smith v. Clinton. 687 F. Supp. 1310, 1317 (E.D. Ark.) 

(taking judicial notice of the history of electoral racial

discrimination in Arkansas), affd  mem.. ___U .S .___ , 109

S.Ct. 548, 102 L.Ed.2d 576 (1988).

The focus here is not only on the State of Arkansas, 

but also on Phillips County. While over fifty percent of the 

residents of Phillips County are black, black residents of legal



- 6a -

voting age number less than fifty percent.1 Statistics on 

education and income, indicators closely correlated with 

political participation, see Perkins. 675 F.2d at 211, reveal 

that blacks in Phillips County are on the average much less 

educated and far poorer than whites.

No black candidate has been nominated for or elected 

to a county-wide or city-wide office or to a state legislative 

position from Phillips County since the turn of the century. 

In the past two years, four black candidates have come in 

first in preferential primary elections in Phillips County, yet 

all four were subsequently unable to obtain the Democratic 

nomination because they were defeated by white candidates in 

general (runoff) primaries. 1

1 According to the 1980 census, Phillips County had 
34,772 residents. Of these, 16,100 (46.30%) were white and 
18,410 (52.94%) were black. However, of the 22,110 
residents age 18 and over 11,542 (52.20%) were white and 
10,395 (47.00%) were black. Earlier census figures show 
that these percentages are generally stable. Exhibit JX1 at 1- 
3, Whitfield v. Democratic Party. 686 F. Supp. 1365 (E.D. 
Ark. 1988).



- 7a -

Racially polarized (bloc) voting is the norm in Phillips 

County. Whitfield’s expert, who performed both extreme 

case analyses and bivariate ecological regression analyses on 

the fifteen county-wide, city-wide, and state legislative 

elections since 1984, testified that in all fifteen elections, 

voting was racially polarized as shown by the fact that black 

candidates were supported by an average of over ninety-four 

percent of black voters and, in most county-wide races, 

virtually no white voters supported black candidates.

B. The Primary Election Runoff Requirement 

The Arkansas Code sets forth the procedures for 

primary elections, Ark. Code Ann. §§ 7-7-201 to -311 

(1987), pursuant to amendment 29 of the Arkansas 

Constitution. Amendment 29 states:

Only the names of candidates for office 
nominated by an organized political party at a 
convention of delegates, or bv a majority of all the 
votes cast for candidates for the office in a primary 
election, or by petition of electors as provided by law, 
shall be placed on the ballots in any election.



- 8a -

Ark. Const, amend. 29, § 5 (emphasis added).

Whitfield is challenging section 7-7-202, which states:

(a) Whenever any political party shall, by 
primary election, select party nominees as candidates 
at any general election for any United States, state, 
district, county, township, or municipal office, the 
party shall hold a preferential primary election and a 
general primary election on the respective dates 
provided in § 7-7-203(a) and (b).

(b) A General primary election shall not be 
held if there are no races where three (3) or more 
candidates qualify for the same office or position as 
provided in subsection (c) of this section, unless a 
general primary election is necessary to break a tie 
vote for the same office or position at the preferential 
primary.

(c) If there are no races where three (3) or 
more candidates qualify for the same office or 
position, only the preferential primary election shall be 
held. If all nominations have been determined at the 
preferential primary election, or by withdrawal of 
candidates as provided in § 7-7-304(a) and (b), the 
general primary election shall not be held.

Ark. Code Ann. § 7-7-202 (1987).

Under the current system, candidates for a particular

party nomination run in preferential party primary elections.

If three or more candidates run in the preferential primary,



- 9a -

and none receives a majority of the votes, the top two 

candidates are required to run in a subsequent general (runoff) 

primary election. Both appellants and appellees acknowledge 

that, in Arkansas, the Democratic nomination is tantamount 

to election for most local and state offices.

C. The District Court Holding

The district court dismissed Whitfield’s constitutional 

challenge to section 7-7-202 because the court found no 

racially discriminatory purpose or intent underlying the 

primary runoff enactments. The Court also rejected 

Whitfield’s argument that the runoff had been maintained for 

racially discriminatory purposes. Whitfield. 686 F. Supp. at 

1370.

The district court denied relief under the Voting Rights 

Act, stating that the plaintiffs failed to convince the court that 

section 2 applies to runoff provisions such as those found in 

section 7-7-202, given the demographics of the area and the 

manner in which the runoffs operate. The court also



- 10a -

concluded that, even if section 2 does apply, the plaintiffs 

failed to sustain their burden of proof that section 7-7-202 

results in blacks having less opportunity than whites to 

participate in the political process or to elect candidates of 

their choice. Id. at 1387.

II. DISCUSSION

A. Constitutional Violation 

Whitfield argues that section 7-7-202 was enacted and 

has been maintained with discriminatory intent and thus 

violates the Equal Protection Clause of the fourteenth 

amendment. "[I]n order for the Equal Protection Clause to 

be violated, ’the invidious quality of a law claimed to be 

racially discriminatory must ultimately be traced to a racially 

discriminatory purpose.’" Rogers v. Lodge. 458 U.S. 613, 

617, 102 S.Ct. 3272, 3275, 73 L.Ed.2d 1012 (1982) (quoting 

Washington v. Davis. 426 U.S. 229, 240, 96 S.Ct. 2040, 

2048, 48 L.Ed.2d 597 (1976)). "The ultimate issue in a case 

alleging unconstitutional dilution of the votes of a racial group



- 11a -

is whether the [voting scheme] under attack exists because it 

was intended to diminish or dilute the political efficacy of that 

group." Rogers. 458 U.S. at 621, 102 S.Ct. at 3277-78 

(quoting Nevett v. Sides. 571 F.2d 209, 226 (5th Cir. 1978), 

cert, denied. 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed. 2d 807 

(1980)).

A plaintiff challenging the constitutionality of a 

discriminatory electoral system must prove, by a 

preponderance of the evidence, that the defendant had racially 

motivated discriminatory intent in enacting or maintaining a 

voting practice. Perkins. 675 F.2d at 207; Nevett. 571 F.2d 

at 219. See also City of Carrollton Branch of the NAACP v. 

Stallings. 829 F.2d 1547, 1549 (11th Cir. 1987), cert denied 

sub nom. Duncan v. City of Carrollton. Georgia. Branch of

the NAACP. ___U .S .___ , 108 S.Ct. 1111, 99 L.Ed.2d 272

(1988); Weslev v, Collins. 791 F.2d 1255, 1262 (6th Cir. 

1986) (citations omitted). The trial court must consider "the 

totality of the circumstances" surrounding the alleged



- 12a -

discriminatory practice in order to "determine whether the 

[challenged voting practice] was created or maintained to 

accord the members of the allegedly injured group less 

opportunity than other voters to participate meaningfully in 

the political process and elect [candidates] of their choice." 

Perkins, 675 F.2d at 209. "Because a finding of intentional 

discrimination is a finding of fact, the standard governing 

appellate review of a district court’s finding of discrimination 

is [the clearly erroneous standard]." Anderson v. Bessemer 

Gty, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 

518 (1985).

Whitfield provided the following evidence of racially 

discriminatory purpose. First, in 1939, at the time the 

primary runoff statute was adopted in its original form, 

Arkansas was a one-party state and the Democratic white 

primary was the only election that mattered. At the same 

time, an amendment to repeal a poll tax, which effectively 

disenfranchised blacks, failed. Second, after the white



- 13a -

primary was held unconstitutional by the Supreme Court in 

the 1940s, the majority runoff system was retained to 

diminish black electoral influence. Third, the recodification 

of the Election Code in 1969 maintained the use of runoffs in 

primary elections. Fourth, in 1975 and 1983, attempts were 

made to also impose general election runoffs in response to 

the presence of black candidates in multi-candidate municipal 

contests. Finally, the current version of the statute was 

passed in 1983; two members of the legislature who served 

that year testified that the statute was intended to prevent 

blacks from winning further elections due to splits in the 

white community .

Based on a detailed review of the evidence surrounding 

the enactment of section 7-7-202 and the adoption of 

amendment 29 of the Arkansas Constitution, the district court 

held that Whitfield failed to establish his constitutional 

challenge to the Arkansas primary runoff requirement. 

Whitfield. 686 F. Supp. at 1374. The court noted that the



- 14a -

majority vote requirement set forth in the state constitution 

was initiated through petitions (not by the legislature) and 

adopted by a vote of the people of the State of Arkansas at a 

time when blacks in Arkansas could not vote in the 

Democratic primary. The requirement could not have been 

maintained by the General Assembly with discriminatory 

intent because nothing in the record indicates that the 

legislature had the power to repeal amendment 29. In fact, 

in 1940, the Arkansas legislature proposed an amendment to 

repeal amendment 29, but that effort was soundly defeated by 

the popular vote. Id. at 1371. The court determined that 

"the issue is beyond direct legislative reach" and thus 

concluded that the actual purpose behind the enactment of 

section 7-7-202 was the stated purpose "to insure that no one 

was nominated as a candidate of the Democratic Party who 

had not received a majority of the votes cast." Id. at 1370- 

71.

We agree that discriminatory legislative intent has not



- 15a -

been adequately established, given the time frame and 

political background of amendment 29. While the legislators 

may have enacted more recent statutes which continue to 

advocate primary runoffs, they were mandated to continue the 

use of runoffs by the state constitution and voter tendencies 

present in Arkansas. The district court’s conclusion that 

discriminatory intent was not proved is not clearly erroneous. 

Thus, we affirm that portion of the district court opinion.

B. Violation of the Voting Rights Act 

Section 2 of the Voting Rights Act provides:

Denial or abridgement of right to vote on account of 

race or color through voting qualifications or 

prerequisites; establishment of violation

(a) No voting qualification or prerequisite 

to voting or standard, practice, or procedure shall be 

imposed or applied by any State or political 

subdivision in a manner which results in a denial or 

abridgement of the right of any citizen of the United



- 16a -

States to vote on account of race or color, * * * as 

provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section 

is established if, based on the totality of the 

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 

protected by subsection (a) of this section in that its 

members have less opportunity than other members of 

the electorate to participate in the political process and 

to elect representatives of their choice. The extent to 

which members of a protected class have been elected 

to office in the State or political subdivision is one 

circumstance which may be considered: Provided, that 

nothing in this section establishes a right to have 

members of a protected class elected in numbers equal 

to their proportion in the population.



- 17a -

42 U.S.C. § 1973 (1982).

1. Applicability of the Act

The Democratic Party urges us to affirm the district 

court’s holding that section 2 of the Voting Rights Act does 

not apply to section 7-7-202. The Party notes that virtually 

all of the cases decided under section 2 deal with at-large 

elections or legislative districting matters. We conclude, 

however, that section 2 was not meant to apply only to cases 

challenging at-large election schemes and districting matters, 

although it is true that most of the previous section 2 cases 

concern these types of discriminatory voting practices.

The Senate Report emphasizes that section 2 is the 

"major statutory prohibition of ah voting rights 

discrimination," prohibiting practices which "result in the 

denial of equal access to any phase of the electoral process 

for minority group members." S. Rep. No. 417, 97th Cong., 

2d Sess. 30 reprinted in 1982 U.S. Code Cong. & Admin. 

News 177, 207 (emphasis added). Nowhere in the language



- 18a -

of the statute did Congress limit the application of section 2 

cases to those involving at-large elections or redistricting; in 

fact, the Senate Report specifically identifies "majority runoffs 

[which] prevent victories under a prior plurality system" as a 

"dilution scheme^ * * * employed to cancel the impact of the 

* * * black vote." Id. at 6, 1982 U.S. Code Cong. & 

Admin. News at 1983.2

The district court stressed that majority rule is one of 

the underlying concepts of our democratic system. However, 

we agree with the Fifth Circuit that "[t]he fact that majority 

vote requirements may be commonplace does not alter the fact 

that Congress clearly did conclude that such provisions could 

serve to * * * dilute the voting strength of minorities."

2 We recognize that this language in the Senate Report 
refers, in part, to section 5 of the Act which section deals 
with "preclearance" of changes in election laws in certain 
jurisdictions. Nonetheless, we believe this legislative 
discussion, which encompasses both special practices and 
general prohibitions clearly supports our analysis of 
congressional intent on the scope of section 2 of the Act.



- 19a -

Westwego Citizens for Better Government v. City of 

Westwego. 872 F.2d 1201, 1212 (5th Cir. 1989) (citing 

Thornburg v. Gingles. 478 U.S. 30, 56, 106 S.Ct. 2752, 

2769, 92 L.Ed.2d 25 (1986)).

Furthermore, the Supreme Court has explicitly stated 

that "[sjubsection 2(a) prohibits all States and political 

subdivisions from imposing any voting qualifications or 

prerequisites to voting, or any standards, practices, or 

procedures which result in the denial or abridgement of the 

right to vote of any citizen who is a member of a protected 

class of racial and language minorities." Gingles. 478 U.S. 

at 43, 106 S.Ct. at 2762 (emphasis in original). The Court 

has specifically recognized majority vote requirements as 

"potentially dilutive electoral devices." Id. at 56, 106 S.Ct. 

at 2769. Here, that potential has been realized.

The district court held, "as a matter of law, that the 

undisputed population figures here are not such as will permit 

the plaintiffs to challenge the primary runoff law of the state



- 20a -

of Arkansas as a violation of Section 2 of the 1965 Voting 

Rights Act, as amended." Whitfield. 686 F. Supp. at 1381. 

The court based this premise on "the circumstance that the 

voting age populations of blacks and whites in Phillips County 

is equal for practical purposes." Id. The court rejected the 

idea that "even where black voting populations equal or 

exceed white voting populations, blacks should nevertheless 

be considered a ’minority’ because of the evidence that they 

have not participated in the past in the political processes of 

the county in as large a proportion as have whites." Id.

We disagree with the district court’s analysis of this 

issue. The inquiry does not stop with bare statistics. Section 

2 is not restricted to numerical minorities but is violated 

whenever the voting strength of a traditionally disadvantaged 

racial group is diluted. " [Historically disadvantaged 

minorities require more than a simple majority in a voting 

district in order to have * * * a practical opportunity to elect 

candidates of their choice." Smith v, Clinton. 687 F. Supp.



- 21a -

1361, 1362 (E.D. Ark.), affd mem.. __  U.S. ____, 109

S.Ct. 548, 102 L.Ed.2d 576 (1988). We conclude, as a 

matter of law, that a numerical analysis of the voting age 

population in a particular geographic area does not 

automatically preclude application of section 2 to a challenged 

voting practice used in that area.

Furthermore, the parties stipulated to census figures 

showing that blacks do constitute a minority of the voting age 

population in Phillips County (47%). In addition, at every 

election studied by Whitfield’s expert, blacks turned out at a 

lower rate than whites. Thus, although theoretically a black 

candidate may be able to muster a majority of the votes in 

Phillips County, the practical reality is that there simply are 

not enough blacks voting in each election to allow a victory 

for a black candidate.

While the district court believes that the registration 

level of voting age blacks is equal, or nearly equal, to that of 

voting age whites in some of the challenged geographic areas,



- 22a -

we find that conclusion to be speculative. Whitfield points 

out that the census data in the record contains no references 

whatsoever to registration rates, and indeed, Arkansas 

apparently does not keep such data by race. Appellants’ Brief 

at 12 n. 12. The district court also supports its conclusion by 

relying on the fact that efforts to register blacks have greatly 

increased in recent years and black citizens no longer face 

harassment and intimidation in registering and voting. 

However, if we were also permitted to speculate, we would 

probably conclude that even with these changes in Arkansas 

politics, the voting statistics show that black registration 

numbers are still significantly lower than white voter levels. 

Blacks could not vote at all in the State of Arkansas until 

1940, and as such blacks have had less than fifty years to 

increase their voter numbers. Their registration level could 

hardly be equal to that of the white community, which has 

been able to recruit and assemble voters since the creation of

the state.



- 23a -

2. Discriminatory Results

The district court also concluded that, even if section 

2 did apply to majority runoff requirements in Phillips 

County, Whitfield failed to prove that, based on a totality of 

the evidence, section 7-7-202 results in discrimination against 

blacks in Phillips County. We disagree.

Although the district court apparently recognized that 

"plaintiffs need not show "that the challenged voting practice 

or procedure was the product of purposeful discrimination," 

Whitfield. 686 F. Supp. at 1374, we believe the court failed 

to properly analyze the runoff requirement in light of the 

results-oriented test articulated in the Senate Report. Rather, 

it appears that the district court made a combined analysis of 

the discriminatory intent underlying section 7-7-202 and the 

cause and effect relationship between the runoff requirement 

and election results in Phillips County. This analysis 

circumvents the true issue: whether the challenged voting 

practice, a primary election runoff requirement, results in



- 24a -

blacks in Phillips County having less of an opportunity to 

participate in the political process and elect representatives of 

their choice.

Throughout the legislative history of the 1982 

amendment to section 2, Congress emphasizes that a violation 

of this portion of the voting Rights Act may be ascertained 

through a results-oriented analysis. The Senate Report states 

that one of the objectives of the 1982 amendment was "to 

amend the language of Section 2 in order to clearly establish 

the standards intended by Congress for proving a violation of 

that section." S. Rep. No. 417 at 2, 1982 U.S. Code Cong. 

& Admin. News at 178. The Report then elaborates on this 

stated purpose:

This amendment is designed to make clear that proof 

of discriminatory intent is not required to establish a 

violation of Section 2. * * * The amendment also 

adds a new subsection to Section 2 which delineates 

the legal standards under the results test * * *.



- 25a -

This new subsection provides that the issue to 

be decided under the results test is whether the 

political processes are equally open to minority voters, 

Id. at 2, 1982 U.S. Code Cong. & Admin. News at 179. 

The Report reiterates that the legal standard set forth by the 

amendment to section 2 does not require proof of 

discriminatory purpose and thus a minority plaintiff may 

establish a section 2 violation by showing that the challenged 

electoral practice results in denial of equal access to the 

political process. Id. at 15-17, 27, 1982 U.S. Code Cong. & 

Admin. News at 192-94, 205.

The Supreme Court has recognized Congress’s intent 

to establish a results test, stating:

The Senate Report which accompanied the 1982 

amendments elaborates on the nature of § 2 violations 

and on the proof required to establish these violations. 

First and foremost, the Report dispositively rejects the 

position of the plurality in Mobile v. Bolden. 446 U.S.



- 26a -

55 [100 S.Ct. 1490, 64 L.Ed.2d 47] (1980), which 

required proof that the contested electoral practice or 

mechanism was adopted or maintained with the intent 

to discriminate against minority voters. The intent 

test was repudiated for three principal reasons—it is 

"unnecessarily divisive because it involves charges of 

racism on the part of individual officials or entire 

communities," it places an "inordinately difficult" 

burden of proof on plaintiffs, and it "asks the wrong 

question." The "right" question, as the Report 

emphasizes repeatedly, is whether "as a result of the 

challenged practice or structure plaintiffs do not have 

an equal opportunity to participate in the political 

processes and to elect candidates of their choice."

Gingles, 478 U.S. at 43-44, 106 S.Ct. at 2762-63 (quoting S.

Rep. No. 417 at 2, 15-16, 27, 28, 36) (footnotes omitted). 

Based on the clear language of the Senate Report and

the Supreme Court’s subsequent verification of the results



- 27a -

test, we reject the inferences made by the district court that 

Whitfield’s failure to prove discriminatory intent under section 

2 results in a dismissal of his claim. While proof of intent 

may be used to show a violation of section 2, S, Rep. No. 

417 at 27 & n. 108, 1982 U.S. Code Cong. & Admin. News 

at 205, such proof is not required of a plaintiff under the 

statutory language.

The Gingles Court explained that "a court must assess 

the impact of the contested structure or practice on minority 

electoral opportunities" on the basis of the plaintiffs proof as 

to a variety of factors, as set forth in the Senate Report. 

Gingles. 478 U.S. at 44-45, 106 S.Ct. at 2763-64. "Typical 

factors" include (1) the extent of any history of official voting 

discrimination, (2) the extent of racially polarized voting, (3) 

the extent to which the state or political subdivision has used 

other voting practices or procedures which may enhance the 

opportunity for discrimination, (4) whether minority group 

members have been denied access to the candidate slating



- 28a -

process, (5) the extent to which minority group members 

suffer the effects of discrimination "in such areas as 

education, employment and health, which hinder their ability 

to participate effectively in the political process," (6) whether 

political campaigning has been typified by racial appeals, and 

(7) the extent to which minority group members have been 

elected to public office. S. Rep. No. 417 at 28-29, 1982 

U.S. Code Cong. & Admin. News at 206-07.

The district court reviewed the evidence presented by 

Whitfield as it related to the factors set forth in the Senate 

Report. For five of the seven factors, the court made factual 

findings which favored the conclusion that section 2 had been 

violated in Phillips County. Specifically, the court found that 

(1) Arkansas has a long history of racial discrimination which 

has touched the rights of blacks to participate in the 

democratic process; (2) Phillips County has experienced 

"extreme racial polarization in voting" in recent years; (3) 

other than majority vote requirements, Phillips County has not



- 29a -

used any other "discrimination-enhancing" voting practices in 

the recent past; (4) no evidence was submitted on this point; 

(5) Phillips County has experienced "devastating" effects of 

discrimination in the areas of education, employment, and 

health, because of "dire economic circumstances"; (6) 

although no evidence was presented of significant, overt or 

subtle racial appeals, race does play "a central role" in 

Phillips County politics and has "frequently dominated over 

qualifications and issues"; and (7) no black candidate has ever 

been elected to county-wide or state legislative office in 

Phillips County. Whitfield. 686 F. Supp. at 1383-85.

After adopting these findings, the district court 

reasoned that "the Senate Report factors more logically 

support proof relating to ’intent’ issues than ’cause and 

effects’ issues." Id. at 1382. However, this conclusion is 

contradicted by the language of the Senate Report. After 

noting that plaintiffs who choose to establish a section 2 

violation on the basis of intent may do so through direct or



- 30a -

indirect circumstantial evidence, the Report states, "If the 

plaintiff proceeds under the ’results test,’ then the court would 

assess the impact of the challenged structure or practice on 

the basis of objective factors, rather than making a 

determination about the motivations which lay [sic] behind its 

adoption or maintenance." S. Rep. No. 417 at 27, 1982 U.S, 

Code Cong. & Admin. News at 205. Contrary to the district 

court’s opinion, we conclude that the factors set forth by the 

Senate Report are to be used primarily as proof of a section 

2 violation under the results test. See id. at 28, 1982 U.S. 

Code Cong. & Admin. News at 206.

The district court also held that Whitfield did not meet 

his burden of proof of showing a causal connection between 

the runoff requirement and the lack of minority electoral 

success. We again disagree. During the past four years, but 

for the runoff primary elections, four black candidates would 

have been the Democratic Party’s nominee. The court infers 

that the actual cause of lack of success by black candidates



- 31a -

was the lack of motivation on the part of black voters— 

apathy-and if black voters would turn out at the polls in high 

numbers, their candidates would not be defeated because 

forty-seven percent of the voting population is black and some 

cross-over voting does occur. It seems to us, however, that 

these conclusions are based on two erroneous premises: (1) 

that plaintiffs must actually prove a causal link between the 

lack of black electoral success and the discriminatory system 

being implemented against them, and (2) as noted above, that 

the Senate factors do not apply to the cause and effect 

analysis.

We agree that a causal connection between the 

challenged practice, as it occurs within the political climate of 

the geographic area, and the diluted voting power of the 

minority must be established. Here, the proof is two-fold. 

First, the plaintiffs have proved that the majority vote 

requirement has impaired their ability to elect a candidate 

because blacks of voting age, although they are numerous in



- 32a -

Phillips County, fail to turn out at the polls in numbers

sufficient to meet a majority vote requirement. Second, the

plaintiffs have established, through proof of Senate factors,

that the political climate of Phillips County has caused the

low voter participation, because "[ojnce lower socio-economic

status of blacks has been shown, there is no need to show the

causal link of this lower status on political participation."

United States v. Dallas Countv Comm’n. 739 F.2d 1529,

1537 (11th Cir. 1984). The Senate Report states:

[D]isproportionate educational, employment, income 
level and living conditions arising from past 
discrimination tend to depress minority political 
participation. Where these conditions are shown, and 
where the level of black participation in politics is 
depressed, plaintiffs need not prove any further causal 
nexus between their disparate socio-economic status 
and the depressed level of political participation.

S. Rep. No. 417 at 29 n. 114, 1982 U.S. Code Cong. &

Admin. News at 207 (citations omitted).

The evidence adduced, the stipulated facts, and the

district court opinion all confirm that blacks in Phillips



- 33a -

County suffer from less education, less employment, lower

income levels, and disparate living conditions as compared to

whites. Blacks also suffer from the remnants of official

discrimination in Arkansas.

[P]ast discrimination can severely impair the present- 
day ability of minorities to participate on an equal 
footing in the political process^] * * * may cause 
blacks to register or vote in lower numbers than whites 
* * * [and] may * * * lead to present socioeconomic 
disadvantages, which in turn can reduce participation 
and influence in political affairs.

United States v. Marengo County Comm’n. 731 F.2d 1546,

1567 (11th Cir.), appeal dismissed. 469 U.S. 976, 105 S.Ct.

375, 83 L.Ed.2d 311 (1984).

Here, the district court required an improper burden

of proof of causal relationships by holding, in effect, that the

socioeconomic factors and the effects of discrimination did

not hinder blacks’ ability to participate in any legally

significant way. See Dallas County Comm’n. 739 F.2d at

1537. "It is not necessary in any case that a minority prove

such a causal link. Inequality of access is an inference which



- 34a -

flows from the existence of economic and educational 

inequalities." M. (citations omitted). See also Marengo 

County Comm’n. 731 F.2d at 1569 (holding that "when there 

is clear evidence of present socioeconomic or political 

disadvantage resulting from past discrimination, * * * the 

burden is not on the plaintiffs to prove that this disadvantage 

is causing reduced political participation, but rather is on 

those who deny the causal nexus to show that the cause is 

something else").

Furthermore, the district court improperly assumed 

that lack of motivation caused lower turnout at the Phillips 

County polls. See Gomez v. City of Watsonville. 863 F.2d 

1407, 1416 (9th Cir. 1988) (stating that the district court 

should have focused only on actual voting patterns rather than 

speculating on reasons why minority voters were apathetic),

cert denied. ___U.S. ___ , 109 S.Ct. 1534, 103 L.Ed.2d

839 (1989); Dallas County Comm’n. 739 F.2d at 1536 

(concluding that "[t]he existence of apathy is not a matter for



- 35a -

judicial notice"); Marengo County Comm’n. 731 F.2d at 

1568-69 (noting that "[b]oth Congress and the courts have 

rejected efforts to blame reduced black participation on 

’apathy’"). Also, the internal documents in this case simply 

do not support such an assumption. While, as the district 

court recognized, blacks are working strenuously in Phillips 

County to register black voters and to encourage black voter 

participation, voter turnout is still low. Yet, black turnout at 

some of the general primary (runoff) elections did not drop as 

significantly as did white voter turnout, when compared with 

the preceding preferential primary. These factors indicate to 

us that black voters are not apathetic. We believe that other 

factors contribute to a lack of political participation which 

nonparticipation is significant enough to make a runoff 

election victory an impossibility for a black candidate.

The plaintiffs presented statistical and expert evidence 

on the lower social, educational, and employment conditions 

in Phillips County. Contrary to the district court’s



- 36a -

determination, we conclude that such evidence is relevant to 

prove cause and effect. Thus, without more, the plaintiffs 

adequately carried their burden of proof that the majority 

runoff requirement, as it operates in the political system of 

Phillips County, has caused blacks in that county to have less 

opportunity than whites to elect the candidate of their choice.3

The Senate Report states that the factors enumerated

3 Judge Hanson’s research in this matter turns up a 
significant factor which none of the parties has addressed 
through evidence or in briefs or oral argument; that is, that 
Arkansas election law does not preclude cross-party voting in 
runoff (general) primary elections. It is factually uncontested 
that virtually no white voters support black candidates in 
Phillips County.

Thus, the Phillips County runoff system permits white 
Republicans, if they have a mind to do so, to, at least in 
limited circumstances, support a white Democrat in a runoff 
primary and to further dilute black voting strength. This 
cross-over factor distinguishes and attenuates the holding in 
Butts v. City of New York. 779 F.2d 141 (2d Cir. 1985) 
since Butts clearly dealt with a closed (no cross-over) runoff 
primary. While we subscribe to Chief Judge Oakes’ panel 
dissent, which opinion fully supports our results, we believe 
that the precedential value of the majority opinion in Butts is 
erased when the cross-over component is added to the factual 
mix.



- 37a -

"will often be the most relevant ones," though in certain cases 

other factors may also be used to show vote dilution. S. Rep. 

No. 417 at 29, 1982 U.S. Code Cong. & Admin. News at 

207. Here, a majority of the factors have been found by the 

district court to exist in Phillips County. Furthermore, the 

findings relating to the third and fourth factors do not weigh 

against the plaintiffs’ proof. However, the final determination 

"of whether the voting strength of minority voters is * * * 

’canceled out’" demands the court’s "overall judgment, based 

on the totality of the circumstances and guided by those 

relevant factors in the particular case." Id. at 29 n. 118, 

1982 U.S. Code Cong. & Admin. News at 207. We 

conclude that, based on the proof set forth by Whitfield and 

the totality of the circumstances in Phillips County, a section 

2 violation has been established under the results test.4

4 Whitfield has also asserted the argument that the 
district court erroneously dismissed the plaintiffs’ challenge to 
the general election majority vote requirement. Before trial, 
the district court dismissed plaintiffs’ claim, citing as one of 
its reasons lack of standing. Whitfield asserts that plaintiffs



- 38a -

C. Remedy

We are well aware of the difficulty of fashioning a 

remedy for Phillips County alone, while allowing the other 

counties of Arkansas to continue implementing a majority vote 

runoff requirement for primary elections. However, the 

evidence requires just such a remedy, and courts have created 

remedial orders which affect only one legislative district, 

while affecting no other portion of the Arkansas state 

legislative structure. See Smith v. Clinton. 687 F. Supp. at 

1311; Smith v. Clinton. 687 F. Supp. at 1362 (rejecting the 

argument that any plan affecting only a single legislative 

district would interfere with the state-wide scheme of 

apportionment).

Where, as here, a violation of the Voting Rights Act

had standing because they are black citizens and registered 
voters. We disagree with this argument. We conclude that 
the challenge was properly dismissed because the plaintiffs 
lacked standing in that no black had ever participated as a 
candidate in an election covered by the general (multi-party) 
election runoff statute and they failed to allege that such 
elections have been discriminatory in Phillips County.



- 39a -

has been established, "courts should make an affirmative 

effort to fashion an appropriate remedy for that violation." 

Monroe v. City of Woodville. Mississippi. 819 F.2d 507, 511 

n. 2 (5th Cir. 1987) (per curiam), cert, denied. 484 U.S. 

1042, 108 S.Ct. 774, 98 L.Ed.2d 860 (1988). The legislative 

history of the Act states:

The basic principle of equity that the remedy 
fashioned must be commensurate with the right that 
has been violated provides adequate assurance, without 
disturbing the prior case law or prescribing in the 
statute mechanistic rules for formulating remedies in 
cases which necessarily depend upon widely varied 
proof and local circumstances. The court should 
exercise its traditional equitable powers to fashion the 
relief so that it completely remedies the prior dilution 
of minority voting strength and fully provides equal 
opportunity for minority citizens to participate and to 
elect candidates of their choice.

S. Rep. No. 417 at 31, 1982 U.S. Code Cong. & Admin.

News at 208 (footnote omitted). In sum, "’the [district] 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



- 40a -

future.’" Ketchum v, Byrne. 740 F,2d 1398, 1412 (7th Cir. 

1984) (quoting Louisiana v. United States. 380 U.S. 145, 

154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965)), cert. 

denied, sub nom. City Council v. Ketchum. 471 U.S. 1135, 

105 S.Ct. 2673, 86 L.Ed.2d 692 (1985).

We agree with the Seventh Circuit that it is not the 

proper role of an appeals court to formulate its own remedial 

plan "or to dictate to a district court minute details of how 

such a plan should be devised." Ketchum. 740 F.2d at 1412. 

Therefore, we remand this case to the district court with 

directions to formulate an appropriate remedy for violation of 

the Voting Rights Act in Phillips County. We instruct the 

district court to limit its remedy to within the borders of 

Phillips County, since the evidence requires such a limitation.

We are well aware of the district court’s concerns that 

elimination of the primary runoff requirement may not 

provide a total solution to the problem of the inability of 

black candidates to be elected in Phillips County and, indeed,



- 41a -

may perpetuate racially polarized voting there. However, the 

majority vote requirement has, up to this point, prevented 

blacks from electing the candidates of their choice, and so, 

the elimination of that requirement is mandated by section 2. 

While the duties of a district judge are multitudinous, 

accurately forecasting the future is not one of them. 

Legislators are responsible for the results stemming from their 

decision-making. Thus, these potential problems are for 

Congress, not the courts, to solve. If the remedy fashioned 

for Phillips County serves to intensify the problem, as the 

district court anticipates, then the Congress will have to 

reevaluate section 2 as it is applied to realistic voting 

situations and the realities of political life in America.

III. CONCLUSION

Section 2 was broadly written to protect minorities 

from disparate voting practices and procedures, including 

majority vote requirements. The Gingles Court stated that 

"[t]he essence of a § 2 claim is that a certain electoral law,



- 42a -

practice, or structure interacts with social and historical 

conditions to cause an inequality in the opportunities enjoyed 

by black and white voters to elect their preferred 

representatives." Gingles. 478 U.S. at 47, 106 S.Ct. at 2764. 

We determine that this definition encompasses the Phillips 

County situation.

Therefore, while we affirm the district court’s 

conclusion that Whitfield failed to prove his constitutional 

claim, we reverse the court’s conclusion that section 2 of the 

Voting Rights Act of 1965, as amended in 1982, is 

inapplicable. We conclude that section 2 is violated by the 

application of Ark. Code Ann. § 7-7-202 to Phillips County, 

Arkansas. Thus, we remand to the district court for

determination of the appropriate remedy in accordance with 

the instructions set forth in this opinion.

HANSON, Senior District Judge, concurring.

I write separately to express my concern over the 

remedy that will be required by this ruling. Although we



- 43a -

have left the remedy unspecified, it will necessarily leave 

Phillips County, Arkansas, with a voting procedure that, at 

least temporarily, varies from that used in the rest of the 

state.5 This is a situation which I believe courts should avoid 

whenever possible because the fragmentation of state law is 

a grave matter. There is, however, no way to avoid this 

situation in this case.

The Fourteenth and Fifteenth Amendments to the 

United States Constitution undeniably vest Congress and the 

Judiciary with the power to end any and all state voting 

procedures which abridge the rights of minority citizens to 

vote. City of Rome v. United States. 446 U.S. 156, 173- 

79, 100 S.Ct. 1548, 1559-63, 64 L.Ed.2d 119 (1979); South 

Carolina v. Katzenback, 383 U.S. 301, 323-27, 86 S.Ct. 803,

5 It appears that the district court may receive some 
guidance on the potential breadth of the remedy available in 
this case by the ultimate disposition of Spallone v. United
States. 856 F.2d 444 (2nd Cir. 1988), cert, granted. ___U.S.
__ , 109 S. Ct. 3211, 106 L.Ed,2d 562 (1989) (argued Oct.
2, 1989).



- 44a -

815-18, 15 L.Ed.2d 769 (1965). Congress, acting within the 

authority granted by these provisions of our Constitution, has 

mandated that no state voting procedure can be allowed to 

stand which "results" in the dilution of the voting strength of 

a traditionally disadvantaged racial group in "any state" or 

"subdivision" thereof. See 42 U.S.C. § 1973 (1982). I am 

bound to follow this mandate.

In this case, a most able and fair district judge has 

found inequalities which indicate a violation of this law in 

Phillips County, Arkansas. There is no doubt in my mind, 

that under the present factual situation, the primary run-off 

requirement dilutes the votes of Phillips County blacks in a 

manner proscribed by the Voting Rights Act. Further, I am 

not prepared to accept as a major premise in syllogistic 

argument the premise, which I believe underlies Judge 

Bright’s dissent, that there can be no injustice where majority 

vote rules.

I do not know that Congress, in its passage of the



- 45a -

1982 Amendments to the voting Rights Act and adoption of 

the "results" test, fully recognized that the statute as crafted 

would open the door to the fragmentation of state law when 

a statewide law is shown to result in a dilution of minority 

voting strength in only one subdivision of a state. I assume, 

however, that Congress did intend the natural consequences 

of its actions. If they did not, it is up to Congress to act 

pursuant to their wisdom to change the law—not this court. 

Thus, because the people of this country, through the 

Congress and the Constitution, have decreed that no state 

voting procedure can be allowed to stand which results in the 

dilution of the voting rights of racial minorities in a 

subdivision of a state, I join in striking down the application 

of the law at issue in Phillips County.

I harbor no illusions that this ruling enforcing the 

Voting Rights Act will dissolve the racial prejudice which 

continues to haunt Phillips County. There are problems in 

social and political human relations which defy solution by



- 46a -

legislative action. And, as noted by Justice Holmes, 

legislative efforts to solve these problems often create 

uncertainties over which judges, with all their frailties, labor. 

Racial problems, are now, and have been, one of these most 

difficult areas of concern. Thus, although I join in striking 

down the barrier in this case, it seems to me that such 

problems can only be truly "solved" by time, patience, and 

most importantly, education.

My study and research on this matter does not disclose 

a perfect precedent for that action which we take today.

BRIGHT, Senior Circuit Judge, concurring in part and 

dissenting in part.

I write separately to express my disagreement with the 

reasoning and conclusion of the majority regarding section 2 

of the Voting Rights Act. This case presents a voting rights 

challenge to the use of run-off primaries in elections for 

single-member offices, a procedure that without more does 

not dilute the opportunity of any group of voters to participate



- 47a -

equally with other voters in the political processes leading to 

the nomination and election of public officials. Accordingly, 

I dissent.

Run-off primaries serve a basic principle of 

representative government: majority rule. States have always 

had the right to require that a majority of the voters support 

the winner of an election. While it is unquestionably true that 

run-off primaries combined with at-large elections or other 

dilutive electoral devices can produce discriminatory results, 

see Thornburg v. Gingles. 478 U.S. 30, 56, 106 S.Ct. 2752, 

2769, 92 L.Ed.2d 25 (1986); City of Port Arthur v. United 

States. 459 U.S. 159, 167, 103 S.Ct. 530, 535, 74 L.Ed.2d 

334 (1983); Rogers v. Lodge. 458 U.S. 613, 627, 102 S.Ct. 

3272, 3280, 73 L.Ed.2d 1012 (1982); White v. Regester. 412 

U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973), 

no federal court has ever taken the position that run-off 

primaries standing alone violate section 2. Moreover, the 

only court ever faced with this issue reached the opposite



- 48a -

conclusion. Butts v. City of New York. 779 F.2d 141 (2d 

Cir. 19851. cert, denied. 478 U.S. 1021, 106 S.Ct. 3335, 92 

L.Ed.2d 740 (1986). Because of the importance of the 

principle underlying run-off primaries, their long history and 

the absence of authority for the position the court today 

adopts, I would require explicit direction from Congress 

before invalidating the use of run-off primaries standing 

alone.

Section 2 of the Voting Rights Act is less than explicit.

It states that an electoral procedure violates the Act 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 [minority voters] in 
that [minority voters] have less opportunity than other 
members of the electorate to participate in the political 
process and to elect representatives of their choice.

42 U.S.C. § 1973(b) (1982).

Section 2 forbids two types of electoral procedures:

restrictive procedures that prevent members of a minority

group from voting and procedures that have the effect of



- 49a -

diluting minority voting strength. Butts. 779 F.2d at 148. 

In this case we confront the issue whether the use of run-off 

primaries standing alone dilutes minority voting strength. 

This issue does not lend itself to easy analysis because the 

phrase "vote dilution" "suggests a norm with respect to which 

the fact of dilution may be ascertained." Mississippi

Republican Executive Comm, v. Brooks. 469 U.S. 1002, 

1012, 105 S.Ct. 416, 422-23, 83 L.Ed.2d 343 (1984) 

(Rehnquist, J., dissenting from summary affirmance). No 

such norm exists.

The Senate Report accompanying the 1982 

amendments to the Act set forth a list of "typical" factors 

relevant to the existence of a section 2 violation. S. Rep. No. 

417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S. 

Code Cong. & Admin. News 177, 206-07. While the 

Supreme court discussed these factors with approval in 

Thornburg v, Gingles. the Court nevertheless observed

that this list of typical factors is neither comprehensive



- 50a -

nor exclusive. While the enumerated factors will often 
be pertinent to certain types of § 2 violations, 
particularly to vote dilution claims, other factors may 
also be relevant and may be considered. Furthermore, 
the Senate Committee observed that "there is no 
requirement that any particular number of factors be 
proved, or that a majority of them point one way or 
the other. Rather, the Committee determined that "the 
question whether the political processes are ’equally 
open’ depends upon a searching practical evaluation of 
the ’past and present reality,”' and on a "functional" 
view of the political process.

478 U.S. at 45, 106 S.Ct. at 2763-64 (citing S. Rep. No. 

417, 97th Cong. 2d Sess. 29, reprinted m U.S. Code Cong. 

& Admin. News at 206-07) (footnote and citations omitted). 

In this case, the majority does not conduct a searching 

evaluation but simply adds up a number of factors and 

concludes that a violation has occurred. Moreover, the 

majority fails to recognize that the district court conducted 

an appropriate evaluation.

In analyzing the effect of the run-off primary on the 

nomination of black candidates, District Judge Eisele quoted 

from the work of Professor Harold Stanley:



- 51a -

The likelihood of black nominees gaining a plurality 
of the primary vote in a crowded field seems enticing 
enough to encourage some to argue for ending the 
runoff. However, in majority black districts—as 
supporters of the runoff point out-the lack of a runoff 
might cause several black candidates to split the black 
vote and allow a white candidate to gain a plurality 
nomination. Thus, the runoff can protect and promote 
black political prospects in majority black districts.

Whitfield v. Democratic Party. 686 F. Supp. 1365, 1378

(E.D. Ark. 1988) (quoting Stanley, Runoff Primaries and

Black Political Influence, in Blacks in Southern Politics 259,

262-63 (1987)). Other commentators agree that invalidating

the use of run-off primaries may hamper the ability of black

voters to nominate their preferred representatives.

McDonald, The Majority Vote Requirement: Its Use and

Abuse in the South. 17 Urb. Law. 429, 437-38 (1985);

Butler, The Majority Vote Requirement: The Case Against

Its Wholesale Elimination. 17 Urb. Law. 441, 454 (1985).

The able district judge cited evidence in the record to support

his conclusion that the use of run-off primaries does not

produce discriminatory effects: "The blacks have a voting



- 52a -

age population majority in some of the Justice of the Peace 

districts in Phillips County. If two or more blacks chose to 

run in the primary and only one white, then the same 

possibility, i.e., of a minority white plurality nominee, would 

occur." Whitfield. 686 F. Supp. at 1378. District Judge 

Eisele, residing in the state of Arkansas and familiar with its 

political processes, is in a far better position than we appellate 

judges to evaluate whether the run-off primary denies black 

voters an equal opportunity to nominate candidates of their 

choice.

Judge Eisele also reasoned that the existence of the 

run-off primary has the effect over time of easing racial 

polarization in voting. "[Plurality-win statutes or rules 

promote racial polarization and separation. Run-off 

provisions promote communication and collaboration among 

the various constituencies by which coalitions are built." 

Whitfield. 686 F. Supp. at 1386. In support of this 

statement, Judge Eisele observed:



- 53a -

For Democratic candidates, nomination rules that 
encourage the seeking of biracial support, promote 
prospects for election. Retaining the runoff can lead 
to more black-white coalitions that [sic] back 
Democratic candidates who make successful biracial 
appeals. Courting and composing such biracial 
coalitions require a politics that is capable of reducing 
racial polarization, rather than reinforcing it. Such 
political cooperation between the races provides a 
more promising basis for collaboration on the eventual 
nomination and election of southern black candidates. 
On the other hand, eliminating the runoff where strong 
racial polarization exists-even if this would produce 
more black nominees (which seems unlikely)-should 
mean continued racial polarization....

Id. at 1386 (quoting Stanley, Runoff Primaries and Black

Political Influence, in Blacks in Southern Politics 259, 264

(1987)). Racial polarization needs discouragement not

enhancement. We should avoid any conclusion, such as the

one the majority reaches today, that has the effect of

continuing racial polarization in voting.

In addition to failing to recognize that the

determination of a section 2 violation depends on a searching

evaluation of the political process, the majority opinion

o



- 54a -

contains a second flaw: none of the authority cited by the 

majority supports a conclusion that section 2 applies to run­

off primaries standing alone. The majority refers to the 

Supreme Court’s recognition that majority voting requirements 

are "potentially dilutive electoral devices...." Thornburg v. 

Gingles. 478 U.S. at 56, 106 S.Ct. at 2769. But the Court 

in Gingles was referring to the use of majority vote 

requirements in connection with multi-member districts. The 

majority also refers to language in Westwego Citizens for 

Better Gov’t v. City ofWestwego. 872 F.2d 1201, 1212 (5th 

Cir. 1989), that majority voting requirements "could serve to 

further dilute the voting strength of minorities." The 

Westwego court, however, was remanding to the district court 

for a determination of whether an at-large voting scheme 

diluted the voting strength of minorities in violation of section 

2. The Westwego court was merely recognizing that a 

majority vote requirement combined with an at-large voting 

scheme could dilute minority voting strength. Finally, the



- 55a -

majority states that the Senate Report that accompanied the 

1982 amendments identified a number of "dilution schemes," 

including "majority run-offs...." S. Rep. No. 417, 97th 

Cong. 2d Sess. 6, reprinted in 1982 U.S. Code Cong. & 

Admin. News at 183. The quoted portion of the Senate 

Report, however, is discussing section 5, dealing with pre­

clearance of legislative efforts to undermine the Act. Section 

5 is obviously not at issue here and the Arkansas legislature 

enacted the run-off primary law long before passage of the 

Voting Rights Act.

As stated earlier, the only court to address the use of 

run-off primaries reached a conclusion different from the one 

the majority reaches today. Butts v. City of New York. 779 

F.2d 141 (2d Cir. 1985). Butts involved a voting rights 

challenge to a New York statute that required a run-off 

primary if no candidate received more than 40% of the vote 

in the general primary. In holding that in the absence of 

dilutive electoral procedures the run-off primary at issue did



- 56a -

not violate section 2, the court stated:

Whereas, in an election to a multi-member body, a 
minority class has an opportunity to secure a share of 
representation equal to that of other classes by electing 
its members from districts in which it is dominant, 
there is no such thing as a "share" of a single-member 
office. The distinction is implicit in City of Port 
Arthur v. United States. 459 U.S. 159, 103 S.Ct. 530, 
74 L.Ed.2d 334 (1982), where the Court struck down 
a run-off requirement that Port Arthur had appended 
to its at-large voting system for seats on the multi­
member city council, but made no mention of a similar 
run-off requirement for the election of mayor. The 
latter run-off was not even challenged.

The rule in elections for single-member offices 
has always been that the candidate with the most votes 
wins, and nothing in the Act alters this basic political 
principle. Nor does the Act prevent any governmental 
unit from deciding that the winner must have not 
merely a plurality of the votes, but an absolute 
majority (as where run-offs are required when no 
candidate in the initial vote secures a majority) or at 
least a substantial plurality, such as the 40% level 
required by § 6-162.

Id. at 148-49. The Butts rationale gives strong support to the

district court’s perceptive and well-reasoned opinion.1

1 Judge (now Chief Judge) Oakes dissented in Butts, 
contending that while minority voters have no right to "a 
proportionate ’share’" of a single member office, "they do 
have a right not to be subject to any structural process that



- 57a -

For all of the reasons given above, I would affirm.

under the totality of circumstances deprives them of equal 
opportunity to field a candidate for one of those offices." 779 
F.2d at 155 (Oakes, J., dissenting). Judge Oakes further 
opined that a run-off election after an open primary would not 
violate section 2. Ick (Oakes, J., dissenting). In footnote 3 
of its opinion, the majority reveals that in this case Arkansas 
law does not prohibit cross-party voting. Thus, the Butts 
dissent seems not to support the opinion of the majority.



- 58a -

MEMORANDUM OPINION OF THE DISTRICT 
COURT DISMISSING PETITIONERS5 

CHALLENGE TO THE PRIMARY 
RUNOFF STATUTE

Sam Whitfield, Jr., Linda Whitfield, P.L. Perkins, Julious 
McGruder, Georgia M. Varner, Annie Sykes, Ollie Jennings, 
and Sam Bennett, Plaintiffs.

v.

The Democratic Party of the State of Arkansas, the State of 
Arkansas Democratic Central Committee, and the Phillips 
County Democratic Central Committee, Defendants.

No. H-C-86-47.

United States District Court,
E.D. Arkansas, E.D.

May 20, 1988.

Oily Neal, Kathleen Bell, Marianna[;j Lani Guinier, 

Pamela S. Karlan, New York City, for plaintiffs.

Tim Humphries, Asst. Atty. Gen., Little Rock, Ark., 

for defendants.

MEMORANDUM OPINION 

EISELE, Chief Judge.

This case involves a challenge to Ark. Code Ann. § 7-



- 59a -

7-202, which requires that a candidate receive a majority of 

the votes cast in a political party’s primary election in order 

to obtain the nomination of that political party. That section 

provides in pertinent part:

Whenever any political party shall, by primary 
election, select party nominees as candidates ... for 
any United States, state, district, county, township, or 
municipal office, the party shall hold a preferential 
primary election and a general primary election on the 
respective dates provided in section 7-7-202(a) and 
(b).

Without spelling it out the plaintiffs are actually attacking

Amendment 29, Section 5 of the Constitution of Arkansas

(adopted November 8, 1938) which provides:

Only the names of candidates for office nominated by 
an organized political party at a convention of 
delegates, or by a majority of all the votes cast for 
candidates for the office in a primary election, or by 
petition of electors as provided by law shall be placed 
on the ballots of any election. (Emphasis Supplied)

The majority vote requirement is established by Amendment

29 and the mechanisms for carrying it out are set forth in

section 7-7-202.



- 60a -

Plaintiffs are proceeding under two distinct theories. 

First, they contend that section 7-7-202 and Amendment 29 

result in their being less able than white citizens to participate 

in the political process and elect the candidates of their 

choice. This cause of action arises, they state, entirely under 

section 2 et seq. of the Voting Rights Act of 1965, as 

amended, 42 U.S.C. § 1973 et seq. See Plaintiffs’ Pretrial 

Brief, p. 2. Secondly, plaintiffs allege that section 7-7-202 

and Amendment 29 were enacted and have been maintained 

for racially discriminatory reasons and, therefore, violate the 

fourteenth and fifteenth Amendments to the Constitution. 

The Court will deal with the latter contention first, i.e., 

plaintiffs’ "intent" claims.

Plaintiffs’ Constitutional Claims

Plaintiffs rely upon the City of Mobile v. Bolden. 446 

U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) and Rogers 

v. Lodge. 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 

(1982). Under this theory, plaintiffs must establish that



- 61a -

section 7-7-202 and Amendment 29 were enacted, or has been 

maintained, for a discriminatory purpose. As stated in

Village_of Arlington Heiehts v. Metropolitan Housing

Development Corp.. 429 U.S. 252, 266, 97 S.Ct. 555, 564, 

50 L.Ed.2d 450 (1977):

[D]etermining whether invidious discriminatory 
purpose was a motivating factor demands a sensitive 
inquiry into such circumstantial and direct evidence as 
may be available."

In making this determination, the Court may consider the 

factors identified in the Senate Report along with all the other 

facts and circumstances. See infra discussion of section 2 of 

the Voting Rights Act of 1965. As the Court understands the 

law in this area, if legislation was motivated or maintained 

out of a desire to discriminate against blacks on account of 

their race and if, indeed, such legislation in fact has that 

effect, it would violate the Equal Protection clause. With 

these legal principles in mind, the Court will discuss the 

history of Amendment 29 and section 7-7-202.



- 62a -

Arkansas has had such a majority-vote requirement 

since 1933. Prior to that time, at least two counties in 

Arkansas followed the practice without the benefit of any act 

of the Legislature.

In his inaugural address in January 1933, Governor

Futrell stated, "nominations for public office should be made

by a majority of the qualified electors voting at an election.

By no means should an insubstantial minority be allowed to

make a nomination." The bill was approved by the Senate by

a vote of 28 to 0 on January 18, 1933, and passed the House

by a vote of 84 to 3 on February 14. The Governor signed

the bill and it became Act 38 of 1933.

Mr. Henry Alexander, in his article, "The Double

Primary" in Volume 3 of the Arkansas Historical Orderly

(1944) (cited by all parties and also by several of the

witnesses) explained the overwhelming vote as follows:

In view of the potent opposition in the legislature to 
earlier bills providing a double primary, passage of 
Act 38 with only three negative votes is difficult to



- 63a -

understand. The hectic Democratic primaries of 1932 
may in some measure explain revival of agitation for 
the double primary system. The primary ballot of that 
year in Pulaski County, described as being "as long as 
your arm," contained seventy-six names exclusive of 
candidates for nomination to township offices and for 
election to party office. The ballot listed seven 
candidates for the gubernatorial nomination, a like 
number for the United States senatorial nomination. 
Six entrants sought the nomination for lieutenant 
governor and twenty candidates filed for seven other 
contested nominations to state office. Winners in 
several races failed to poll a majority of the votes 
case. J.M. Futrell, nominee for governor, polled less 
than forty-five per cent; Lee Cazort, nominee for 
lieutenant governor, less than thirty-one per cent. 
Converted to the principle of majority nominations by 
numerous minority nominations in the primaries of this 
and former years, a small group of influential citizens 
organized a Run-Off Primary Association. This short­
lived organization was formed to advocate enactment 
of a double primary law at the 1933 session of the 
General Assembly. The organization, its headquarters 
in Little Rock, chose J. Bruce Streett, president, and 
Grady Forgy, secretary. Its officers had a hand in 
drafting Act 38 and its influence counted for much in 
obtaining passage of the statute.

During the 1935 legislative session, Act 38 was

repealed. This prompted a movement to embody the

majority-vote double primary system into the Arkansas

Constitution where it would be beyond legislative power.



- 64a -

According to Mr. Alexander, in 1928, Mr. Brooks 

Hayes was runner-up in a seven-man race for the 

gubernatorial nomination which was won by Harvey Parnell 

with a plurality of less than 42%. Two years later, Mr. 

Hayes urged adoption of the double primary system in the 

form of an initiated amendment to the Constitution. Mr. 

Collins was at that time president of the Arkansas Bar 

Association. This effort culminated in the adoption of 

Amendment 29 to the Arkansas Constitution. The amendment 

covers a variety of "good government" election principles. 

For our purposes, the most important is found in Section 5, 

which reads:

Only the names of candidates for office nominated by 
an organized political party at a convention of 
delegates, or by a majority of all the votes cast for 
candidates for the office in a primary election, or by 
petition of electors as provided by law, shall be placed 
on the ballots in any election.

As stated by Alexander:

Sponsors of the proposed amendment were moved, 
primarily, by hostility to committee nominations and



- 65a -

special elections and, secondarily, by hostility to 
plurality nominations. The latter, however, should not 
be minimized. The section of Amendment 29 
requiring the double primary was included in earliest 
drafts of the proposal. Suggestions, at one time 
considered, to incorporate provision for a double 
primary in a separate amendment were discarded. 
Writing on August 31, 1937, Abe Collins stated, with 
reference to the section of the proposed amendment 
requiring the double primary, "I think it is the most 
important part of it (draft of Amendment 29)." 
Opposition to minority nominations was strengthened 
in some quarters when, in the primary of August 11, 
1936, Carl E. Bailey won the gubernatorial nomination 
in a five-man race by a plurality of less than thirty- 
two percent of the votes cast.

Amendment 29 was laboriously drafted during 
a period of almost a year by Abe Collins, Judge B.E. 
Isbell of DeQueen, and Doctor Robert A. Leflar of 
Fayetteville. C.T. Coleman of Little Rock and Doctor 
J.S. Waterman of Fayetteville cooperated.

Dr. Leflar and Dr. Waterman are recognized nationally as

legal scholars.

Over 18,000 signatures were needed in order to initiate 

Amendment 29. The effort was successful. According to 

Mr. Alexander:

The press of Arkansas vigorously and almost without 
exception supported ratification of Amendment 29 at



- 66a -

the general election in November, 1938. No organized 
opposition appeared and, on November 8, the measure 
was approved by narrow margin of 63,414 to 56,947. 
Opposition to ratification was somewhat centered in 
so-called "machine" counties. In eleven counties often 
so characterized ratification was opposed by a popular 
majority of 61.5 per cent of votes cast in these 
counties.

Two temporary enabling acts were then passed.

In 1939, the Legislature proposed Amendment 30 to 

the Constitution which would have abolished the double 

primary. That proposal was defeated by a vote of 96,628 to 

70,131, indicating, according to Alexander, a strengthening 

of public sentiment for the double primary system.

The first of the enabling acts under Amendment 29, 

Act 372 of 1939, required that uncontested nominations and 

nominations with only two contestants be voted on at the 

second primary. This provision was intended to lessen the 

opportunity for interference in the second race by winners or 

losers in the first, the preferential, race and to counteract lack 

of voter-interest and non-voting in the runoff primary. Since



- 67a -

Act 372 expired by its own terms, it was necessary for the

1941 session of the General Assembly to reenact such

enabling legislation. This was done and became Act 90 of

1941. This act also expired by its own terms causing the

enactment of permanent enabling legislation in 1943, to wit:

Act 238 of 1943. Mr. Alexander’s comments are pertinent:

The double primary system in Arkansas has had a 
checkered and stormy history. Opposition to the 
system is outspoken and lacks neither leadership nor 
strength. This writer ventures to predict, however, 
that this opposition will grow weaker; that the 
principle of majority nominations will become more 
secure.
Political parties in Arkansas in the state, district, 
county or city may nominate candidates either by party 
primary or by party convention. Optional use of the 
primary, authorized in 1895, was retained by authors 
of Amendment 29 to accommodate the Republican 
Party. Expense of a primary is unwarranted by the 
limited voting strength of the minority party. Optional 
use of the primary was retained also to allow 
Democratic nominations to be made by convention to 
fill vacancies in nominations and to select candidates 
to run in special elections. Direct nominations in these 
circumstances would not be feasible in all cases.

Should a political party choose to nominate its 
candidates by primary such nominations, by provision 
of Amendment 29, must be made by majority vote.



- 68a-

The wisdom of incorporating the mandate of majority 
nominations in the state’s fundamental law, beyond 
reach of the General Assembly, is questionable. 
Objections stems from the likelihood that Arkansas 
may not remain a one-party state, as some authors of 
Amendment 29 tacitly assumed. Some profess to see 
national trends toward an alignment that may divide 
the electorate along political lines definitely liberal and 
conservative. Should this trend, or current frictions 
within ranks of the majority party in the southern 
states, usher in a two-party system in Arkansas, the 
constitutional requirement of majority nominations 
would invoke criticism. Meanwhile, the Republican 
Party, or any minority, is forced by Amendment 29 to 
select nominees either at party convention or to incur 
expense of two primaries.

The principle of majority rule, on the other hand, is a 
bed-rock ingredient of democratic political philosophy. 
The principle, in one-party states, is ample support for 
the view that constitutional law should sanction 
majority nominations. The General Assembly may not 
amend the requirement of nomination by majority 
vote; in enabling acts it may exercise broad discretion 
in giving form and effect to the constitutional mandate.

Plaintiffs maintain, as pointed out above, that the

primary runoff laws of Arkansas "were enacted and have been

maintained for racially discriminatory reasons." Plaintiffs’

Pretrial Brief, p. 2. Plaintiffs acknowledge, as they must,

that during the period discussed above, when such laws came



- 69a -

into being in Arkansas, black citizens had already been 

essentially disenfranchised and removed from any 

participation in Democratic primaries. And, since nomination 

in Democratic primaries at that time was tantamount to 

election, blacks were essentially excluded from any 

meaningful participation in the entire political life of the state. 

"All white" primaries and the poll tax had reduced black 

voter registration, according to one authority, to 1.5 per cent 

in 1940. See, "Runoff Primaries and Black Political 

Influence," by Harold W. Stanley, p. 270.

The Court is convinced that there was no racially 

discriminatory purpose or intent in the primary runoff 

enactments. Nor could those laws at that time have had any 

discriminatory racial effect since blacks could not run for 

office, vote, or otherwise participate in Democratic primaries. 

But plaintiffs go on to argue that such laws have been 

maintained for racially discriminatory purposes. After 

hearing all of the evidence, the Court is convinced that this



- 70a -

is simply not so. The actual purpose was the stated purpose, 

to wit: to insure that no one was nominated as a candidate of 

the Democratic Party who had not received a majority of the 

votes cast. This is not a tenuous policy to conceal some 

racial animus but, rather, a "bedrock ingredient of democratic 

political philosophy." See discussion of Section 2 of the Civil 

Rights Act of 1965, infra.

Plaintiffs rely principally upon the circumstances 

surrounding the enactment in 1983 of Section 7-5-106, Ark. 

Stat. (1987) (which establishes the runoff requirement for 

candidates for municipal and county offices in general 

elections) as evidence of legislative intent to maintain the 

runoff requirement in primary elections for racially 

discriminatory reasons. They point out that this enactment 

followed directly upon the election of a black as mayor of 

West Memphis in a plurality election. Their reliance upon 

such evidence is misplaced for several reasons. First, that 

evidence falls far short of convincing the Court that the



- 71a -

overall legislative intent for the enactment of Section 7-5-106 

was tainted by racially discriminatory motives. Second, the 

"nature of the beast" is quite different in the two cases: 

section 7-7-202 applies to party conducted primary elections 

across the board, that is, in all cases where a political party 

chooses to nominate by the use of that vehicle instead of by 

party conventions; section 7-5-106 applies to state-conducted 

general elections for two specific type of offices only, i.e., 

municipal and local offices. Section 7-7-202 deals with one 

of the methods political parties may use to determine who 

their nominees will be in the general election. Section 7-5- 

106 deals with the manner in which persons are elected to 

certain municipal and local offices. Different motives and 

intents obviously may come into play in these two differing 

situations.1 Third, plaintiffs fail to accept that the majority 1

1 In the hierarchy of the fundamental values of a 
democratic state, the manner in which political parties choose 
to identify their nominees for public office positions is not as 
important as the procedures used to control the actual election 
of such public officers. Using this reasoning, courts might



- 72a -

vote requirement in cases where primaries are used by 

political parties to nominate their candidates is embodied in 

the Constitution of the State of Arkansas.

Amendment 29 was adopted by vote of the people in 

1938. That amendment, it should be recalled, was initiated 

by the people through petitions-not by the legislature. An 

effort to repeal it, Amendment 30 in 1940, as proposed by the 

Arkansas legislature, was resoundly defeated by the popular 

vote. So far as the Court is aware the issue has not been put 

to a popular vote since the defeat of Amendment 30. 

Therefore, the issue is beyond direct legislative reach. And

feel less restraint in interfering with the nominating primary 
process than with the general election process. It is true that, 
in Arkansas, political parties are not required to use open 
primaries to determine their nominees. They may use the 
convention process. So ruling that a primary runoff law was 
bad would not be as threatening to the basic democratic 
structure of government as would a like ruling with respect to 
a general election runoff law. (Indeed, under our republican 
form of government, the concept of plurality rule for general 
elections might itself be suspect constitutionally.) But the 
significance is immense in either situation. And in one-party 
states, the primary elections may be the critical ones in 
determining who shall ultimately be elected.



- 73a -

the intent of the legislature is not in all cases the same as the 

intent of the people, as has been frequently demonstrated, and 

as was in fact demonstrated in this particular case when the 

legislature proposed Amendment 30 which, if enacted, would 

have abolished the runoff requirement in primary elections.

Indeed, it must be recalled that the repeal of the run­

off statute in 1935 is what prompted the movement to embody 

the majority vote requirement in the Constitution where it 

would be beyond legislative control. And there is absolutely 

nothing in this record to suggest that the voters who caused 

the adoption of Amendment 29 and later rejected an 

amendment which would have repealed Amendment 29 had 

any racial animus in mind. The history is clear: race was 

not a factor. In fact, it has been suggested that fear of the 

power of the Ku Klux Klan may have been a motivating 

factor for some. But the perceived perversion of democratic 

principles (where plurality elections were permitted) was the 

overriding motivating factor.



- 74a -

Subsequent to the enactment of Amendment 29 and the 

failure of proposed Amendment 30 (to repeal Amendment 

29), the people have had no further voting opportunity to 

reconsider the issue. So the majority vote runoff system in 

primary elections has been the settled practice in this state for 

over 50 years. The legislature, by its own actions, has no 

power to repeal Amendment 29. It cannot thus be contended 

that the General Assembly has retained or maintained the 

majority-vote runoff requirement for discriminatory reasons. 

And, although the legislature has recently endorsed the runoff 

principle for use in connection with certain general election 

contests, its motive, as discussed above, was not, overall, 

tainted by racial considerations. The fact that a handful of 

legislators, in 1983 may have been motivated by such 

considerations is beside the point. We are to deal with the 

overall legislative intent.

It is interesting to compare the evidence pertaining to 

legislative intent in this case with that in Butts v. City of New



- 75a -

York, 779 F.2d 141 (2d Cir. 1985). There, the runoff

proposal opponents argued in the legislature that the proposal

would have the effect of preventing blacks and Hispanics

from ever electing their own candidates. And it was argued

that the 40% threshold was chosen because it was just above

the combined population of blacks and Hispanics. On the

basis of such evidence and arguments, U.S. District Judge

Brieant concluded that the act was passed for the purpose of

diminishing minority participation in the political process.

The Court of Appeals held that Judge Brieant’s finding of

discriminatory intent was clearly erroneous. A portion of the

Circuit Court’s analysis and reasoning is pertinent here:

Judge Brieant placed particular emphasis on the 
remarks of two black Senators, Galiber and Stewart. 
Senator Galiber argued that the run-off bill would 
prevent a minority candidate from winning a city-wide 
election through a plurality and, consequently, from 
ever winning such an office. Senator Stewart opposed 
the law on the same grounds, arguing that the run-off 
was bound to degenerate into a race-based choice, and 
would thus extinguish the possibility of a 
black/Hispanic coalition candidate winning by 
plurality. He added that, in his view, the 40%



- 76a -

threshold had been chosen because the black and 
Hispanic combined population then comprised 30% of 
New York City, and thus the higher figure shielded 
the offices from a minority coalition candidate.

We find more persuasive the contrary evidence in the 
record provided by the remarks of the bill’s 
proponents. First, responding to Senator Galiber, 
Senator Bloom stated that the purpose of the run-off 
was to bolster the weakening party system by ensuring 
that the candidate who emerged from the primary truly 
represented "the thinking of the majority." The court 
mistakenly characterized this statement as probative of 
racial motivation, interpreting the word "majority" to 
mean "racial majority." This is clearly not what 
Senator Bloom meant. His statements elsewhere in 
the debate clarify his view that the bill was not 
intended to and would not have the effect of 
weakening the voting power of racial—as opposed to 
ideological—minorities. Second, responding to Senator 
Stewart, Senator Brydges reiterated that the purpose of 
the bill was to ensure representation for the ideological 
majorities of political parties, and emphasized his 
opinion and hope that a minority candidate would one 
day profit from the run-off law.

The members of the Senate overwhelmingly passed the 
bill. The results in the Assembly—where the bill was 
virtually uncontested—were the same, with all 5 
minority Assemblymen present voting in favor of the 
law. The district court, oddly, found this support, 
probative of racial animus in light of the evidence 
before the legislature that the law would be costly and 
logistically difficult to implement. The district court 
made no mention of the support that the bill received



- 77a -

from Senator Garcia (a Hispanic), and Garcia’s 
statement during the debate that Badillo supported the 
bill, even though this evidence strongly undercuts the 
notion that § 6-162 was intended as an "anti-Badillo" 
measure. The court cited the "alacrity" with which the 
bill moved through the Assembly and Senate (two 
months), and Governor Rockefeller’s quick approval, 
as somehow probative of the discriminatory intent 
behind the bill.

It is venerable principle that the legislature is 
presumed to act constitutionally. See, e.g., Borden’s 
Farm Prods. Co. v. Baldwin. 293 U.S. 194, 209, 55 
S.Ct. 187, 191, 79 L.Ed. 281 (1934); Thayer, The 
Origin and Scope of the American Doctrine of 
Constitutional Law. 7 Harv. L. Rev. 129, 135-42 
(1893). This rule was recently reaffirmed in Mueller 
v- Allen. 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 
721 (1983), where the Court noted that courts should 
be "reluctant to attribute unconstitutional motives to 
the state, particularly where a plausible [constitutional] 
purpose may be discovered from the face of the 
statute." Id. at 394-95, 103 S.Ct. at 3066. Despite 
this, in analyzing § 6-162, the district court minimized 
evidence probative of the legitimacy of the law, and as 
a result drew all inferences against its constitutionality. 
The events leading up to passage of the bill clearly 
support an inference of legitimate motive. The 
Proccacino nomination badly hurt the Democratic 
Party in New York City, and such fluke results were 
likely to recur as the party system further deteriorated 
and a broader field of candidates emerged. The 
application of § 6-162 solely to city wide offices in 
New York speaks primarily to the ideological diversity 
within the City and the importance of those offices.



- 78a -

The 40% threshold, which Judge Brieant called 
"diabolic," was obviously chosen because Proccacino 
received 33% of the vote in 1969, not because of the 
minority population figures in New York. Finally, the 
speed with which the bill passed both houses 
demonstrates its broad-based support rather than any 
"nefarious" motives; this broad support is also evident 
from the strong minority legislative vote in favor of 
the bill.

At its core, the district court’s holding seems to rest 
primarily on the statements in debate, of the bill’s 
opponents. The Supreme Court has, however, 
repeatedly cautioned—in the analogous context of 
statutory construction—against placing too much 
emphasis on the contemporaneous views of a bill’s 
opponents. See, e.g.. Ernst & Ernst v. Hochfelder. 
425 U.S. 185, 204 n. 24, 96 S.Ct. 1375, 1386 n. 24, 
47 L.Ed.2d 668 (1976); Schwegmann Bros, v. Calvert 
Distillers Corp,. 341 U.S. 384, 394-95, 71 S.Ct. 745, 
750-51, 95 L.Ed. 1035 (1951). Rather, "[i]t is the 
sponsors that we look to when the meaning of the 
statutory words is in doubt." Schwegmann Bros.. 341 
U.S. at 394-95, 71 S.Ct. at 750-51; see N.L.R.B. v. 
Fruit & Vegetable Packers. 377 U.S. 58, 66, 84 S.Ct. 
1063, 1068, 12 L.Ed.2d 129 (1964). And, in fact, the 
legislative debates surrounding § 6-162 are filled with 
lengthy speeches by the law’s proponents attesting to 
its legitimate ideological purpose; there is not a single 
remark by any proponent of the legislation that so 
much as hints at any improper purpose. We conclude 
that the speculations and accusations of the run-off 
law’s few opponents simply do not support an 
inference of the kind of racial animus discussed in, for 
example, Arlington Heights, supra. 429 U.S. at 265-



- 79a -

68, 97 S.Ct. at 563-65.

Accordingly, we hold that the finding of 
discriminatory intent in the passage of § 6-162 is 
clearly erroneous. New York City’s run-off law does 
not violate the Equal Protection Clause.

So here the Court must start with the presumption that

the legislature acts properly and constitutionally. And it

should be reluctant to attribute unconstitutional motives to the

state, "particularly where plausible [constitutional] purpose

may be discovered from the face of the statute." And we are

cautioned against placing too much emphasis upon the

contemporaneous views of the bill’s opponents. Rather, we

should look to the statements of the sponsors if the meaning

or intent is in doubt. Following such guidance here, we can

only conclude that the plaintiffs have completely failed in

their attempt to show that the challenged primary runoff

provisions were enacted or maintained for any racially

discriminatory purpose.

The Court has already described the racial balance in



- 80a -

the 75 Arkansas counties. Only 16 of those counties have 

black populations in excess of 30%. Statewide, the black 

population is 16%. One can see that in a great majority of 

the counties the thought or idea that a runoff mechanism 

might have racial significance or consequences would simply 

not occur to anyone. And likewise it would have no such 

significance to the legislators representing such counties.

The evidence in this case and the literature on the 

subject reveal that the absence of runoff requirements in the 

law has not generally come to the citizen’s or legislator’s 

attention until some bizarre result occurs in an election. Most 

often it has occurred when some candidate getting 30 to 40 

percent of the vote has ended up "nominated" or "elected." 

See, e.g., the discussion of Mr. Henry Alexander’s article, 

"The Double Primary," supra.2 Whenever a person is elected

2 The Court views it as "sort of" like our attitude 
toward the Electoral College system. So long as the person 
elected usually or almost always has a majority of the popular 
vote, people do not get too agitated about that system.



- 81a -

by a plurality vote in this country, there appears to be a 

tendency for the citizenry, and their legislative 

representatives, to become agitated and concerned. This is 

understandable because Americans have traditionally been 

schooled in the notion of majority rule.3 The theory is: a 

majority vote gives validation and credibility and invites 

acceptance; a plurality vote tends to lead to lack of acceptance 

and instability.

The concept of "majority-rule" dominates our national 

mind. But the problem is not confined to America. Many 

other democracies have had to deal with it. Recently, the 

French had a "run-off" election. The situation in South 

Korea appears to be that the present governing party did not 

get a majority of the votes in the most recent election. Their 

electoral rules are being challenged. Mr. Allende is said to

3 The framers of our Constitution, while acknowledging 
this principle, also understood that a majority could run 
roughshod over a minority. The Bill of Rights was their 
answer to the prospect of the tyranny of the majority.



- 82a -

have been the only Marxist who was ever elected the head of 

a democratic state. He received between 36 and 37 percent 

of the vote. A coup occurred. President Allende was 

murdered. Democracy has yet to return to Chile. Would a 

runoff requirement have preserved democracy there? One can 

only speculate. But the point is: there are compelling,

obvious reasons, completely unrelated to race, for states to 

opt for runoff elections.

The plaintiffs, having failed to establish their 

constitutional challenges to the Arkansas primary runoff 

requirements, their claims in that regard will be dismissed.

PLAINTIFFS’ CLAIMS UNDER 
SECTION 2 OF THE VOTING 

RIGHTS ACT OF 1965.

Section 1973, U.S.C. 42 provides:

(a) No voting qualification or prerequisite to voting or 
standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision in a 
manner which results in a denial or abridgement of the 
right of any citizen of the 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



- 83a -

title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is 
established if, based on the totality of 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 protected by subsection 
(a) of this section in that its members have less 
opportunity than other members of the electorate to 
participate in the political process and to elect 
representatives of their choice. The extent to which 
members of a protected class have been elected to 
office in the State or political subdivision is one 
circumstance which may be considered: Provided.
That nothing in this section establishes a right to have 
members of a protected class elected in numbers equal 
to their proportion in the population.

The quoted language reflects the 1982 amendment which

Congress made to section 2 of the Voting Rights Act of 1965.

By virtue of this amendment, Congress made it clear that

plaintiffs need not show that the challenged voting practice or

procedure was the product of purposeful discrimination. The

Senate Report lists several "typical factors" that may serve to

show a violation of the act. Those factors are:

1. the extent of any history of official discrimination in 
the state or political subdivision that touched the right of the



- 84a -

members of the minority group to register, to vote, or 
otherwise to participate in the democratic process;

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

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

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

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

6. whether political campaigns have been characterized by 
overt or subtle racial appeals;

7. the extent to which members of the minority group 
have been elected to public office in the jurisdiction.

Additional factors that in some cases have had probative value

as part of plaintiffs5 evidence to establish a violation are:

whether there is a significant lack of responsiveness on 
the part of elected officials to the particularized needs of the 
members of the minority group.



- 85a -

whether the policy underlying the state or political 
subdivision’s use of such voting qualification, prerequisite to 
voting, or standard, practice or procedure is tenuous.

Senate Report at 28-29, U.S. Code Cong. & Admin. News

1982, pp. 177, 206, 207.

The most important U.S. Supreme Court case dealing 

with this issue is Thornburg v. Gingles. 478 U.S. 30, 34- 

37, 106 S.Ct. 2752, 2758-59, 92 L.Ed.2d 25, 37 (1986). 

That case involved a challenge to the use of multimember 

state legislative districts. In the context of that issue the 

Court held that the most important of the Senate Report 

factors were the "extent to which members of the minority 

group had been elected to public office in the jurisdiction" 

and the "extent to which voting in the elections in the state or 

political subdivision is racially polarized." Whether those 

factors would be emphasized in dealing with a challenge to 

a runoff requirement is doubtful. But Gingles does make it 

clear that in challenges under section 1973 the court should



- 86a -

conduct an intensely fact-specific appraisal. As stated in the 

plaintiffs’ pretrial brief, "no court has yet developed a 

Gingles-like distillation for majority-vote cases." Plaintiffs’ 

Pretrial Brief p. 5. Plaintiffs attempt to treat the runoff 

requirement as they would a "vote-dilution" case. And they 

maintain that all they need to show is that there is some 

causal relationship between the runoff requirement and the 

lack of "minority electoral success" and that voting in the 

challenged area is racially polarized. This Court does not 

agree. Plaintiffs must show a violation of Section 1973, i.e., 

that the runoff procedure was imposed or applied by the State 

of Arkansas in a manner which results in a denial or 

abridgement of the right of any citizen to vote on account of 

race or color. But the Court agrees that plaintiffs must show, 

among other things, some causal connection between the 

runoff requirement and the lack of "minority electoral 

success." Their evidence has failed to so convince the Court.

The premise of this whole attack is that blacks form a



- 87a -

minority of the potential voters in Phillips County. The basic 

statistical data introduced into evidence may not support that 

assumption. Furthermore, at least since 1965, there have 

been no legal barriers to black participation in the political 

processes of the state. Nevertheless, the contention is made 

that because of the history of segregation and the socio­

economic status of the blacks compared to whites in this area, 

it is, as a practical matter, more difficult for blacks to 

exercise their legal rights. More about that below.

The Court notes that in recent years there has been a 

much greater effort to register blacks. The county clerks in 

both Lee and Phillips Counties, for instance, have deputized 

many volunteers to assist in the registration efforts. The 

great bulk of these volunteers have been black and the great 

majority of those whom they have registered have been black. 

There is some evidence that the registration level of voting 

age blacks in some of the contested areas is equal to, or 

approaching, that of voting age whites. See statistics relating



- 88a -

to Marianna in Lee County developed in the case of Campbell 

v. Lee County Election Commission and the census data in 

this record.

The Court finds that the black citizens of Phillips 

County do not still face harassment or intimidation in 

registering, or in voting, or in running for office. The 

location of polling places is always a difficult problem. 

Blacks on the average, being poorer and having less access to 

transportation, may be said to experience more difficulty on 

a statistical basis in getting to the polls. Of course, poor 

whites face the same problem. The Court does not find that 

the location of the polls as described in the evidence 

constitutes a significant barrier to black or white participation 

given even minimal motivation to so participate. The 

evidence indicates that the black leadership in this area is 

highly organized and motivated during the elections and does 

attempt to, and does, provide transportation for those blacks 

supporting that group’s objectives who request such



- 89a -

assistance. See further discussion infra.

The laws relating to the assistance of persons at the 

polling booths have been liberalized. Although there has been 

some tightening up on the requirements for absentee voting, 

the objective has been to reduce the abuse of that mechanism 

which is in the interest of both blacks and whites who favor 

honest elections. As stated by Professor Stanley in "Runoff 

Primaries and Black Political Influences,"

Absentee ballot abuse can reduce the chances for
ousting incumbents.

It has occurred to the Court that the principal problem 

is one of education and communication. We are not dealing 

here with an at-large voting system or racial gerrymandering. 

So, where the black voting age population and the white 

voting age population are approximately equal and there are 

no legally significant state-imposed barriers to full 

participation, the question arises on the front end whether 

there can be any legal predicate for an attack, such as this,



- 90a -

upon a primary runoff mechanism.

Indeed, it occurs to the Court that, absent state- 

created barriers to registering and voting, there should be 

both some low threshold, as well as some high threshold of 

minority voting age population needed in order to trigger a 

consideration of any argument that a runoff device results in 

a denial or an abridgement of the right of any citizen to vote 

or to participate in the political processes of the state. It 

could readily be argued that where the minority voting age 

population was below, say, 20 percent or above, say, 45 

percent, the issue would simply be foreclosed as a matter of 

law. Indeed, this argument was alluded to by the defendants, 

Governor Bill Clinton and Secretary of State Bill McCuen, in 

support of their motion for summary judgment in this case. 

Those then-defendants argued that the plaintiffs’ attempt "to 

invalidate the majority vote requirement for all elections in 

the state of Arkansas is unnecessary and improper." P. 4, 

Brief in Support of Motion for Summary Judgment. They



- 91a -

argued that the plaintiffs had presented no facts "which 

indicate that these requirements are discriminatory in state­

wide, congressional, district, or in county or local elections 

outside of Phillips County. They were, in effect, contending 

for a "low threshold" requirement. The Governor and 

Secretary of State argue:

Many countries and municipalities in Arkansas are all 
or virtually all white. It is defmitionally impossible to 
have any intent to discriminate against blacks in an 
election in an all white county or municipality. 
Likewise, with regard to state elections, it is 
defmitionally impossible to assume a discriminatory 
intent or effect when only sixteen percent of the 
population, according to census statistics, is black. 
Even in a worse case scenario, under which there is 
absolute rigid and total racial block voting in State 
elections, eliminating the majority vote requirement 
would have no effect in helping blacks elect candidates 
of their choice because their portion of the population 
is simply too small.

And, as indicated above, when the voting age population of 

blacks approaches equality with the voting age population of 

whites and the evidence shows, in addition, a consistent 

pattern of "crossover" votes in actual elections, which,



- 92a -

although small percentagewise, are sufficient to "bridge the

gap," the basic assumption used to challenge runoff provisions

appears to be undermined. In this connection, the Court

notes the language of the Court of Appeals in Perkins v. City

of West Helena, 675 F.2d 201 (8th Cir. 1982), cited to this

Court in plaintiffs’ pretrial brief:

[RJacial block voting prevails in West Helena. Almost 
without exception, black candidates have received 
more than 90% of the vote in the identifiable "black 
voting areas" and only 15 and 24 percent of the vote 
in "white voting areas."

p. 213. The evidence in this case likewise shows a consistent 

minimum "cross-over" vote. It is the Court’s view that we 

do not have here the minimal disparities necessary to establish 

either whites or blacks as a "minority" of the voting age 

population. Those populations are for practical purposes 

equal.

Beyond the question of whether blacks in the instant 

case constitute a cohesive "minority" of the size necessary to 

trigger an inquiry into the question whether the primary



- 93a -

runoff law might discriminate against blacks, there is the 

further question of whether this particular election device, 

e.g., the primary runoff here, has a consistent effect of 

discriminating against the black minority. For the purpose of 

this discussion we might assume that the political unit 

involved has a voting age population of 60 percent white and 

40 percent black.

Professor Harold W. Stanley has written persuasively 

on this issue. He cites the arguments made by the plaintiffs 

here:

Without the runoffs majority vote requirement, black 
candidates in minority black districts could gain the 
Democratic nomination—drawing on solid black voting 
support, while two or more white candidates split the 
white vote. This would produce more black nominees, 
which would mean more black elected officials, 
because these black Democratic nominees should 
enjoy—thanks to the party label—sufficient general 
election support from Democratic whites for victory. 
When a sufficient share of whites back black 
candidates, these candidates can gamer a majority of 
the vote for the nomination and the election. Critics 
contend that, when whites do not prove sufficiently 
willing to back black candidates, the runoffs majority 
vote requirement works against the nomination and—



- 94a -

thus—the election of blacks.

Professor Stanley then proceeds to address the logic and the 

practicality of the claims that runoffs disadvantage blacks. 

He states:

[W]hether runoffs are racially discriminatory has yet 
to be determined. Firm evidence to address critical 
questions is lacking. . . .

Nevertheless, he concludes that the available evidence casts

doubt on such claims. After citing the election of Doug

Wilder as Virginia’s Lt. Governor and the elections of Harold

Washington as Mayor of Chicago, he observes:

the levels of support that they secured in the general 
election—even if somewhat reduced—would have 
allowed them to succeed in a primary runoff.

He then makes the following analysis:

For the South in general, if we assume that a plurality- 
win primary system would mean more blacks as 
Democratic nominees, we could not confidently 
anticipate the election of more black officials. The 
appeal of Republicans to white southerners, the 
reluctance of some southern whites to vote for black 
candidates, and the relative size of the black vote 
combine to check such predictions. Gone are the days 
of the solid South:



- 95a-

The Democratic nomination is no longer tantamount to 
election. Even for electoral contests between white 
candidates, Democratic whites voting for Republicans 
have characterized the recent South. Where electoral 
politics is racially charged, the added stimulus of race 
could make such defections even more common. In 
majority nonblack areas, a black Democratic nominee 
can count on facing a white Republican candidate in 
the general election; indeed, the prospect of a black 
Democratic nominee gives additional encouragement 
to Republican candidacies. The lack of white support 
that makes it difficult for a black to gain a majority in 
a Democratic runoff in a majority nonblack district 
would work to favor Republican prospects—resulting 
in the defeat of the black candidate. Making southern 
whites choose between race and party when their party 
ties have considerably loosened might accelerate the 
decline of the Democrats—and promote Republican 
prospects to an extent that Republicans themselves 
have not yet managed. More generally, the 
nomination of splinter candidates could make the 
Republican alternative more attractive in the eyes of 
many. "No question," U.S. Representative Wyche 
Fowler (D-Ga.) said, "the best thing that could happen 
to the Republicans is the abolition of the runoff 
primary. It would build the Republican party 
overnight."

Southern blacks are the most loyal Democratic 
group, but they are too few to ensure victories in most 
southern electoral constituencies. An exact count of 
the black population for each southern election district 
is not available; but the political import of the black 
population can be gleaned from the distribution of



- 96a -

southern blacks in states, congressional districts, 
counties, and cities (Table 14.1), Most southern 
blacks live in electoral districts less than 30 percent 
black. The prospects for general election majorities 
based primarily on black votes are restricted to very 
few southern districts. The distribution of the southern 
black population indicates that the election of black 
or black-backed candidates in most of the South hinges 
on biracial coalition politics.

Having concluded that the elimination of the runoff

requirement would not likely produce more black elected

officials, he asked whether its removal would produce more

nominees. His answer is as follows:

The likelihood of black nominees gaining a plurality 
of the primary vote in a crowded field seems enticing 
enough to encourage some to argue for ending the 
runoff. However, in majority black districts—as 
supporters of the runoff point out-the lack of a runoff 
might cause several black candidates to split the black 
vote and allow a white candidate to gain a plurality 
nomination. Thus, the runoff can protect and promote 
black political prospects in majority black districts. 
For this reason, voting rights litigators who are 
working to dismantle at-large election systems and 
replace them with single-member districts (some 
districts being majority black) find the emphasis on 
ending the runoff to be misplaced. Recent 
reapportionments have reduced the number of 
multimember districts—making more districts majority 
black. After reapportionment produced an increase in



- 97a -

single-member districts (several with black majorities) 
the chairman of South Carolina’s House black caucus 
noted. "Things have changed so that the runoff now 
can work in our favor."

His logic is supported by the evidence in this case. The 

blacks have a voting age population majority in some of the 

Justice of the Peace districts in Phillips County. If two or 

more blacks chose to run in the primary and only one white, 

then the same possibility, i.e., of a minority white plurality 

nominee, would occur.

The Court shares the doubts of others that runoff 

requirements have any identifiable racially discriminatory 

effects. It is one thing for the plaintiffs, Mr. and Mrs. 

Whitfield, to point out that, after their first primary elections, 

they would have been the Democratic Party’s candidates in 

the general election if they had not had to face a runoff; it is 

quite another thing to state that, had there been no runoff 

provisions when they ran in the primary, they would have 

been the Democratic candidates for the particular offices they



- 98a -

were seeking. Once you change the rules, then a different 

dynamic obtains which has been described by Mr. Stanley in 

his article, "Runoff Primaries and Black Political Influence," 

which is discussed above.

It goes without saying that runoffs are of no 

importance if only two candidates are in the race. Putting 

aside the remote possibility of a tie vote, in that situation, the 

winner must gain majority support. So a plurality election 

system, where racial voting and racial polarization exist, will 

result in attempts to limit the number of candidates on one’s 

own side and, at the same time, to attempt to increase the 

number of candidates on the opposition side.

How thin a reed are plaintiffs relying on! Rationality 

is not involved. Only happenstance. The idea is: Maybe the 

black community can agree on one candidate and somehow 

prevent other black candidates from filing while the white 

community does not respond in kind and therefore ends up 

with two or more white candidates in the race, This is not a



- 99a -

political theory or philosophy; it is gamesmanship, political 

Russian roulette; and it is based solely on race. Note 

Professor Stanley’s comments on the studies of Bradley 

Canon,

Ending the runoff accomplishes little, if political forces 
then tend to restrict contests to two candidates. 
Experience with single primary and runoff systems in 
the South and the Border South indicates that runoffs 
encourage multiple candidacies in the first primary, but 
that single primary systems work to limit the number 
of candidacies to two. This difference has political, 
rather than racial, roots—although racial considerations 
can reinforce the tendencies. Bradley Canon examined 
gubernatorial primaries, runoffs, and nominations in 
16 southern and border-south states between 1932 and 
1977: He found that, in the 10 states with runoffs, the 
top two candidates averaged 67 percent of the first 
primary vote; but that, in 6 states with single 
primaries, the top two candidates averaged 93 percent 
of the vote. In a runoff system, several candidates can 
enter the first primary and strive to qualify for the 
runoff; should they fail in that quest, they can 
productively bargain with the first- or second-place 
finisher to deliver support in the runoff. Under a 
single primary system, such bargaining takes place 
before the primary, as interested parties seek to line up 
behind a winner. The single primary system’s 
tendency to limit contests to two serious candidates- 
-in conjunction with the pressures provided by racial 
polarization—make it likely that a black candidate for 
the nomination would face a single white candidate.



- 100a -

This matchup would produce defeat for the black 
candidate in election districts that are not winnable by 
a black in a runoff.

There is nothing in the evidence which supports the

contention that the plaintiffs here would have been the

nominees of the Democratic Party in the general election had

they run in a single, plurality-win primary. Had there been

a single primary, plurality-win law in effect, and this was

known to all before the fact, one can only speculate as to

what would have happened.

In addressing the prospects for black candidates,

Professor Stanley observes:

The willingness of some Democratic white voters to 
back Republican candidates and the reluctance of some 
to vote for black candidates would turn the elimination 
of the runoff into a recipe for reducing black political 
influence. Those pushing for abolition of the runoff 
assume that such white voters are unfit to shape the 
future of the Democratic Party. Yet, insofar as 
political parties are organizations held together by a 
desire to win elections (rather than mount losing 
crusades) current voter attitudes need to be worked 
with—not assumed away. Southern black voters are 
loyal Democratic, however, basing the party on such 
a loyal but limited constituency does not promise



- 101a -

success at the polls. Few southern Democratic elected 
officials have gained office without a sizeable share of 
white votes; most Republican officeholders have 
gained office with very few black votes. Outside 
majority black districts, black votes as the only source 
of support are seldom sufficient for election, but 
without black votes some Democrats would have lost. 
(Not even Jimmy Carter, when he was elected 
president over Ford, gained a majority of the popular 
vote among white southerners.)

For Democratic candidates, nomination rules that 
encourage the seeking of biracial support promote 
prospects for election. Retaining the runoff can lead 
to more black-white coalitions that back Democratic 
candidates who make successful biracial appeals. 
Courting and composing such biracial coalitions 
require a politics that is capable of reducing racial 
polarization, rather than reinforcing it. Such political 
cooperation between the races provides a more 
promising basis for collaboration on the eventual 
nomination and election of southern black candidates. 
On the other hand, eliminating the runoff where strong 
racial polarization exists—even if this would produce 
more black nominees (which seems unlikely)-should 
mean continued racial polarization, lower Democratic 
chances of succeeding in the general election; and an 
acceleration of the movement of southern whites into 
the Republican party, as white voters and politically 
ambitious whites find the GOP an increasingly 
attractive alternative.

It is clear to the Court that a runoff requirement 

encourages candidates to seek biracial support. The runoff



- 102a -

requirement almost mandates consensus-seeking collaboration 

between whites and blacks within the Democratic Party. The 

elimination of the runoff requirement would not, in the 

opinion of the Court, reduce racial polarization, but would 

tend to reinforce that polarization. Issues and qualifications 

would tend to take a back seat to race. And, once a "no 

runoff" rule was established, the game of foreclosing 

legitimate opposition in the interest of racial solidarity would 

thrive alongside of the stalking horse phenomenon.

Professor Stanley analyzes recent southern 

gubernatorial elections to measure electoral responsiveness to 

the interests of blacks. He concludes that such responsiveness 

best characterizes the "post-Voting Rights Act South." He 

analyzes the elections between 1954 and 1965 on the one 

hand and those between 1966 and 1973 on the other. The 

data indicates that the responsiveness to black interests 

increased dramatically in the later period, essentially reversing 

the earlier tendency. He notes that the success of certain



- 103a -

strong segregationists did not mark the path by which later

gubernatorial candidates would succeed.

The strong segregationist victor in Arkansas in 1966 
lost to a racially progressive Rockefeller in the general 
election. The next victorious Democratic governor and 
his successors reflected the progressive Rockefeller.

Professor Stanley compared the gains made by blacks

in southern states without the runoff and those with the

runoffs:

In southern states without the runoff during this 
period-Virginia since 1970, and Tennessee-gains in 
the number of black elected officials and the increased 
black political influence generally did not surpass the 
gains recorded by states with runoffs. Such a 
comparison suggests that, in recent years, the runoff 
has not diluted the strength of the black vote, 
(emphasis added)

In his conclusion, Professor Stanley again asks if the runoff

is "racially discriminatory." And he concludes "that the

runoff is not racially discriminatory." He observes that:

Abolishing the runoff now would ultimately result in 
few (if any) additional black Democratic nominees, 
few (if any) additional black elected officials—and 
more Republican victories. Such an outcome would 
serve to exclude black voters from more winning



- 104a -

coalitions-thereby reducing black political influence.

He even observes that in recent years the evidence suggests

that the runoff "has promoted black influences:"

Maintaining and maximizing black political influence 
requires removing the remaining racially 
discriminatory barriers that blacks face. As reports 
have noted, some southern blacks still face harassment 
and intimidation in registering, voting, and running for 
office; uncooperative or even hostile registration and 
polling officials depress the black vote; black access 
to the polls is made more difficult by the location of 
polling places and the lack of effective assistance at 
the polls; restrictive registration practices also affect 
whites, but-given the legacy of past educational and 
economic discrimination—such practices have a greater 
impact on blacks, limited access for black candidates 
to the white community-particularly, civic
organizations and sources of campaign funds—can 
reduce chances of election; absentee ballot abuse can 
reduce the chances for ousting incumbents; and racial 
gerrymandering can carve bleak constituencies for 
black electoral prospects. The runoff does not deserve 
inclusion among lists of the barriers that deny blacks 
an equal opportunity to participate in the political 
process and to elect representatives of their choice. 
Consequently, drawing attention to the runoff diverts 
attention from the real problems.

Without adopting the rationale in the Butts case (i.e.,

that section 2 does not apply to majority vote requirements



- 105a -

when the election at issue is for a single office), the Court 

nevertheless does have serious doubts whether the run-off 

provision (at issue here), in the factual context revealed by 

the evidence, could, as a matter of law, be deemed to be a 

device capable of making the political processes leading to 

nomination less open to participation by blacks than to others 

or capable of resulting in blacks having less opportunity than 

others to participate in the political process and to elect 

representatives of their choice. In Phillips County, the black 

population constitutes approximately 53 percent of the total, 

and the voting age population of blacks is only marginally 

less than that of the whites. In Lee County, the situation is 

similar but blacks appear to be marginally a majority of the 

voting age population of that county. Although there is 

evidence of extreme racial polarization in voting in recent 

years, there is almost invariably a minimal "cross-over" of 

blacks for white candidates and whites for black candidates. 

We have a situation, therefore, in which one cannot readily



- 106a -

speak of the blacks or the whites as being the "minority" or 

the "majority."

The case, Campbell, et al. v. Lee County Election 

Committee. (No. H-C-86-48), which is still before the Court, 

involved a plan of reapportionment to produce equal single 

member districts. The black plaintiffs argued that they would 

need a voting age population of 60 percent or more in order 

to have a "safe" black district and any real opportunity of 

electing the representatives of their choice. In the absence of 

demonstrated barriers to full political participation by blacks 

in the electoral process, the court characterized such an 

argument as a racial slur against blacks. The Court discussed 

that view with counsel in this case.

Because of the circumstance that the voting age 

populations of blacks and whites in Phillips County is equal 

for practical purposes, the Court assumes that the petitioners 

are contending that, even where black voting populations 

equal or exceed white voting populations, blacks should



- 107a -

nevertheless be considered a "minority" because of the 

evidence that they have not participated in the past in the 

political processes of the county in as large a proportion as 

have whites. Again, the Court rejects such a view, believing 

it to be both unwarranted, contrary to law, and 

counterproductive.

We have placed our faith in the "one person, one 

vote" rule. At great danger do we suggest that the votes of 

one group should be weighed heavier than the votes of 

another group. Even where a lower socio-economic status 

can be traced to a history of racial discrimination, i.e., where 

blacks in a particular area are not as well educated or as well- 

off economically as whites, because of a history of 

discrimination, as here, courts would do well to go slow and 

to resist the temptation to make up for such past wrongs by 

tampering with the fundamental principles of our electoral 

system. At least this Court will refuse to do so, and it will 

rule, as a matter of law, that the undisputed population



- 108a -

figures here are not such as will permit the plaintiffs to 

challenge the primary runoff law of the state of Arkansas as 

a violation of Section 2 of the 1965 Voting Rights Act, as 

amended.

Even assuming that the population figures were such 

as would permit the plaintiffs here to challenge the primary 

runoff law, they have not proved or demonstrated by the 

evidence that such a provision, based on the totality of the 

circumstances revealed by the evidence in this case, has had, 

or has, the effect of discriminating against blacks or that there 

is any causal connection between the lack of black electoral 

success and the challenged runoff procedure.

THE ROLE OF THE SENATE REPORT 
TYPICAL FACTORS.

One must understand the function and importance of 

the Senate’s factors. The factual determination which the 

Court is called upon to make under section 1973(a) is whether 

the challenged practice is being applied by the state or



- 109a -

political subdivision "in a manner which results in a denial or 

abridgement of the right of any citizen to vote on account of 

race or color ... as provided in subsection (b)." Subsection 

(b) states that a violation of subsection (a) is established "if, 

based on the totality of circumstances, it is shown that the 

political processes leading to nomination or election ... are 

not equally open to participation by members of a class of 

citizens protected by subsection a ... in that its members have 

less opportunity than other members of the electorate to 

participate in the political process and to elect representatives 

of their choice." Subsection (a) therefore sets forth the 

general operative factual issue and subsection (b) a particular 

showing that will establish a violation of subsection (a). The 

Senate Report then brings the Court’s attention to certain 

"typical factors" that may serve to show a violation of the 

Act.

It should be noted that subsection (b) does not invade 

the judicial fact finding function by compelling a violation-



- 110a -

conclusion with respect to subsection (a) upon the basis of a 

"showing" that does not logically support such a conclusion. 

If subsection (a) had not included the words "or 

abridgement," the situation might be otherwise because a 

showing that, because of the challenged procedure, blacks 

have" less opportunity to participate in the political process" 

and "to elect representatives of their choice" might not 

rationally and logically support the conclusion that the 

challenged practice or procedure is being applied by the 

political subdivision "in a manner that results in a denial ... 

of the right of any citizen to vote on account of race or 

color." (Emphasis supplied). But, if made, the showing 

specified in subsection (b), and the natural inferences arising 

from such showing, can be said to rationally and logically 

support the conclusion that the challenged procedure results 

in an "abridgement" of the right of any citizen to vote on 

account of race or color. By contrast, it cannot be said that 

a positive finding with respect to some, or all, of the "typical



- 111a -

factors" referred to in the Senate Report would automatically 

require the conclusion that subsection (a) had been violated. 

The "typical factor" findings, and the inferences arising 

therefrom, simply may not logically and rationally tell us 

anything about the effect of the challenged procedure. The 

Senate Report factors more logically support proof relating to 

"intent" issues than "cause and effects" issues.

Nevertheless, although Congress may not intrude upon 

the judicial fact finding functions, it may properly suggest that 

the Court consider certain factors before reaching its decision. 

But no particular number of "positive" findings with respect 

to such "typical factors" can dictate the ultimate factual 

finding required under section 1973(a). So the Senate Report 

"typical factors" do not have the same function as the finding 

identified in subsection (b). Subsection (b) states that a 

violation of subsection (a) "is established if ... it is shown ... 

etc." (Emphasis supplied) So if the showing described in 

subsection (b) is made, that, in itself, will "establish" a



- 112a -

violation of subsection (b). By contrast, a positive finding 

with respect to the various "typical factors" listed in the 

Senate Report will not automatically control the ultimate 

factual findings.

During the oral argument of this case, the Court 

observed that the evidentiary record made by the plaintiffs 

here in their attack upon the primary runoff statute would 

have been practically the same if the plaintiffs had been 

attacking a "plurality-win" provision of state law, i.e., if they 

were asking the Court to mandate a runoff requirement. In 

other words, let us assume that the controversy arose as a 

result of the outcome of a primary election in those J.P. 

districts in Phillips County in which blacks constitute a large 

majority of the voting age population. Let us assume that 

one white ran against two blacks and received 40 percent of 

the vote, whereas each of the blacks received 30 percent of 

the vote. The argument could then be made that the plurality- 

win practice or procedure discriminated against blacks



- 113a -

because it permitted a white to win without obtaining a 

majority of all of the votes cast. But the evidence presented 

would be practically the same as that presented in this 

challenge to the runoff procedure, at least with respect to the 

Senate Report "typical factors." The evidence would be the 

same with respect to the history of official discrimination; the 

extent to which voting is racially polarized; the extent to 

which blacks presently bear the effects of discrimination in 

such areas as education, employment and health which 

hindered their ability to participate effectively in the political 

process; the extent in which blacks have been elected to 

public office, etc.

Or let us assume that the attack is upon the use of 

popular elections for the selection of party nominees. Under 

the Arkansas Constitution, party nominees may be chosen by 

party conventions. So what if the procedure being attacked 

was the use of elections? Again, the proof would be 

essentially the same as it was in this case as far as the Senate



- 114a -

factors are concerned. And the same arguments could be 

advanced against the use of elections as plaintiffs have used 

here in attacking the runoffs procedure.

But the Senate factors have never been considered a 

"magic bullet" which can put in jeopardy any electoral 

procedure, including elections themselves. No, the Court 

must still deal with the ultimate factual issues identified in 

subsections 1973(a) and (b).

With these thoughts in mind, let us go through, one by 

one, the "typical factors" listed in the Senate Report in the 

light of the evidence presented in this case. The first is:

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

Arkansas, as well as all other southern states (and probably 

all northern states), has a long history of racial 

discrimination. That discrimination touched the right of



- 115a -

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

democratic process. So factor #1 is practically a "given," at 

least with respect to any southern state or any political 

subdivision of any southern state. The only question would 

be: when did this "official discrimination" end in the voting 

rights area?

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

The Court finds that there has been extreme racial 

polarization in voting in Phillips County, Arkansas, in recent 

years. Indeed, depending on how one interprets "racial 

polarization," and relying on judicial notice, there appears to 

have been "racial polarization" in each of the primary 

elections in which the Reverend Jesse Jackson has run in this 

nation so far during this spring. Without exception, 90 

percent plus of the blacks participating have supported his 

candidacy and the great majority of whites have supported

white candidates.



- 116a -

Dr, Richard Engstrom testified concerning this subject. 

He analyzed each county-wide race in Phillips County in 

which both black and white candidates competed since the 

year 1984. He used two methods: (1) the "extreme case" (or 

homogeneous precinct) analysis and (2) bivariate ecological 

regression. He found that black voters have overwhelmingly 

supported black candidates while white voters have 

overwhelmingly voted for white candidates. In 10 of the 14 

contests, he found that over 80 percent of the black voters 

voted for the black candidate. And in all 14, a clear majority 

of black voters preferred the black candidate. Conversely, 

in 8 of the 10 contests, he was able to analyze for "white 

precincts," less than 10 percent of the white voters voted for 

the black candidates and in the other two, less than 15 percent 

of the white voters voted for black candidates. These figures 

were derived from using the "extreme case" procedure. 

Using the weighted double racial regressions, Dr. Engstrom 

found polarization to be even more striking. It was his



- 117a -

opinion that in 11 of the 15 contests, over 90 percent of black 

voters preferred the black candidate and in the other 4, an 

overwhelming majority of black voters are estimated to have 

preferred the black candidate. At the same time, in 11 of the 

15 contests, the regressions estimated that not a single white 

voter voted for the black candidate. In the other 4, whites’ 

support was estimated at less than 10 percent.

The Court relies more heavily on the raw figures 

introduced into evidence. Based on all the evidence, the 

Court finds strong polarization in line with the factual 

statements made in the Court’s opinion stated above. That is, 

despite the polarization, there was consistently a "cross-over" 

vote on each side sufficient to create the possibility of 

uncertainty in the outcome. So, on the basis of judicial notice 

and the evidence actually introduced, the plaintiffs have 

satisfied the Court that there is severe racial polarization in 

the elections in Phillips County.

3. The extent to which the state or political



- 118a -

subdivision has used unusually large election 
districts, majority vote requirements, anti­
single shot provisions, or other voting practices 
or procedures that may enhance the opportunity 
for discrimination against the minority.

It is interesting to note that the U.S. Senate apparently has

suggested that "majority" voting is a procedure that "may

enhance the opportunity for discrimination." That is far from

clear to the Court based upon the evidence and authorities it

has reviewed. Nevertheless, yes, the state has imposed upon

Phillips County the "majority vote requirement" in primary

elections. The Court does not find that the county has, in the

recent past, used any of the other "discrimination-enhancing"

voting practices mentioned.

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

There was no evidence upon this point.

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



- 119a -

the political process.

This is also a "given" for the state of Arkansas and Phillips 

County and probably for every other political subdivision in 

the nation. But the effects are more devastating in Phillips 

County than in other places because of the dire economic 

circumstances that have developed in that area of the state 

over the past decade. Although the Court is finding that 

blacks still bear the effects of discrimination in such areas as 

education, employment, and health, nevertheless, the Court 

also finds that those effects should not hinder their ability to 

participate effectively and equally in the political process. 

The Court also notes that typical factor #5 refers to the 

"ability to participate" rather than "opportunity" to participate 

as stated in the statute. The statutory language, not being 

ambiguous, controls. The effects of discrimination referred 

to do not, in any legally significant way, hinder the 

"opportunity" or, indeed, the ability of blacks to participate 

effectively in the political process.



- 120a -

Because there are no legal barriers remaining to the 

opportunity of blacks to participate in the electoral process, 

plaintiffs have naturally emphasized the "socio-economic" 

factors. Considering the nature of our nation’s political and 

economic system, one must move with care in this area.

There are certain truisms about the participation of 

Americans in elections. It is said that the young, the poor, 

and the uneducated do not participate in the same proportions 

as the older citizens, the rich, or the well educated. These 

considerations are, by definition, race neutral. Although it 

may be that poor blacks, say, do not participate to the same 

degree as equally poor whites, the record is silent on this 

point.

Viewing from a larger perspective, the participation of 

qualified American citizens in elections is abysmally and 

disgracefully low compared with that of almost any other 

democratic nation on the face of the earth. So, regardless of 

age, regardless of economic status, regardless of education,



- 121a -

regardless of health, our performance, as rated, for instance, 

by the percentage of those who actually vote in presidential 

elections, is very poor. The other side of that coin is that we 

as a nation have not chosen to require or coerce participation 

or to penalize non-participation. Indeed, it is not clear that 

Congress has the power under our Constitution to mandate 

participation. In any event, it has not chosen to attempt to 

compel participation or to penalize non-participation.

Some argue that American citizens "vote" when they 

choose not to vote—that the failure to go to the polls is a 

rational expression of political choice. Although that might 

be true in a small number of cases, the Court suspects that 

the lack of education, awareness, and interest-or a feeling of 

estrangement, frustration, futility or ennui—are the more likely 

bases for non-participation.

The point is that there must be some minimum 

motivation, some personal goal, before a citizen will take the 

trouble to register, to learn about the issues and candidates at



- 122a -

hand, and to vote.

Plaintiffs have emphasized the disparity between the 

percentage of blacks as compared to whites who have 

telephones or automobiles. They point to data showing that 

in the Phillips County area, 30 percent of black homes have 

no telephone and 42 percent of black households have no 

automobile. And they can demonstrate that not having a 

telephone or an automobile makes it more difficult and less 

convenient for a citizen to qualify for, and to exercise, his or 

her voting rights. The tricky words are "difficult" and 

"inconvenient." So far, the state has left it to the political 

parties, their adherents, and those seeking nomination in 

partisan primary elections to motivate, to communicate with, 

and to assist those whom they wish to participate in such 

elections. The state, or political subdivision involved, has no 

role in this regard. And neither the Constitution nor the 

Voting Rights Act requires political parties to contact 

prospective individual voters, urge their participation, or



- 123a -

provide transportation for those potential voters. But the law 

does require the absence of legal barriers. It also requires 

that no procedure operate to deprive any citizen of the right 

to vote, or to deny to any citizen the equal opportunity to 

participate in the political processes of the community. But 

ordinary inconveniences such as one might experience if he 

wished to go to the doctor’s office or to the post office or the 

general store should not be deemed to constitute legal barriers 

simply because the objective is to get to the voting place. 

The value one places on one’s right to vote will be reflected 

in the difficulties and inconveniences overcome in exercising 

that right.

One of the few physical barriers which the plaintiffs 

emphasized in this case was the location of the polling places. 

The plaintiffs have suggested that many of the voting 

precincts could be located in places more convenient to the 

black voters. The use of black churches was suggested. 

There was no persuasive evidence that the polling places in



- 124a -

1987 in Phillips County were established to discourage voting 

by blacks. Mostly they appear to be established by inertia- 

-the choices in one election being followed in the next. The 

low level of participation cannot be traced to this 

circumstance. This is not to say that improvement could not 

be made in this regard.

But let us assume for a moment that the location of the 

polling places in the primary elections in Phillips County did 

have the effect of making it more difficult for blacks than 

whites to participate in the political processes. What does 

that tell us about the effect of runoff elections? Nothing. If 

the culprit is the practice or manner of locating polling 

places, should not that, then, be the practice that is attacked?

6. Whether political campaigns have been 
characterized by overt or subtle racial appeals.

In their Pre-Trial Brief, plaintiffs state: "While recent

campaigns in Phillips County have not been characterized by

overt racial appeals, plaintiffs will present evidence of the



- 125a *

central role race plays in Phillips County politics." The 

Court does not find evidence of significant, overt or subtle 

racial appeals, but accepts that those participating in the 

electoral process in Phillips County in recent years have more 

or less come to accept race as playing a central role in that 

county’s politics. This is not to assess responsibility for that 

unhealthy situation, but race has frequently dominated over 

qualifications and issues. It is the Court’s belief and hope 

that this is a transient phenomenon on the road to a more 

rational approach to political participation .

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

No black candidate has been elected to any county-wide office 

or to any state legislative office from Phillips County. One 

black candidate has been elected to office from a 

predominantly white jurisdiction in a head-to-head race. 

Within the county, blacks have won several Justice of the 

Peace elections (a county legislative office) in single member



- 126a -

district contests.

The Senate Report, in addition to the seven typical

factors, mentions two additional factors, to wit:

Whether there is a significant lack of responsiveness 
on the part of elected officials to the particularized 
needs of the members of the minority group.

Whether the policy underlying the state or political 
subdivision’s use of such voting qualification, 
prerequisite to voting, or standard, practice or 
procedure is tenuous.

There was not much evidence pertaining to the responsiveness 

on the part of elected officials "to the particularized needs" of 

blacks. The Court has already noted the comments of Mr. 

Stanley on the great increase in such responsiveness in recent 

years based upon his study of southern gubernatorial contests.

Finally we come to whether the policy underlying the 

state’s use of the runoff requirement is "tenuous."

The plaintiffs point out that only ten states have 

majority-vote requirements and most of them are in the south. 

Although plaintiffs acknowledge, as they must, the history of



- 127a -

the primary runoff requirement, they state that Arkansas did 

not seek to impose a majority-vote requirement in general 

elections until 1969, "during a period of growing black 

activity." Their claim is that this first attempt, and 

subsequent attempts which culminated in 1983 with the 

passage of section 7-5-106, were in part "responses to the 

perception that a plurality-win system allowed black voters to 

exercise significant influence in the political process at the 

state level and provided them with a realistic opportunity to 

elect black candidates at the local level." See plaintiff’s 

Pretrial Brief, p. 14. As pointed out in the discussion above, 

the plaintiffs’ evidence simply does not establish that which 

is asserted in the brief.

We are dealing here with the very heart of our 

political system.

What are the policies underlying the primary run-off 

laws and Amendment 29 to the Arkansas Constitution? It 

must be assumed that the Democrats who overwhelmingly



- 128a -

controlled the state General Assembly ( our legislature) in the 

past, and still do today, believe their party should adhere to 

certain principles. Majority-rule is one of those principles. 

And that principle has had overwhelming, popular support 

when it has been on the ballot in Arkansas. But equally 

important are the reasons stated by Professor Stanley which 

we repeat here:

For Democratic candidates, nomination rules that 
encourage the seeking of biracial support promote 
prospects for election. Retaining the runoff can lead 
to more black-white coalitions that back Democratic 
candidates who make successful biracial appeals. 
Courting and composing such biracial coalitions 
require a politics that is capable of reducing racial 
polarization, rather than reinforcing it. Such political 
cooperation between the races provides a more 
promising basis for collaboration on the eventual 
nomination and election of southern black candidates. 
On the other hand, eliminating the runoff where strong 
racial polarization exists—even if this would produce 
more black nominees (which seems unlikely)—should 
mean continued racial polarization, lower Democratic 
chances of succeeding in the general election; and an 
acceleration of the movement of southern whites into 
the Republican party, as white voters and politically 
ambitious whites find the GOP an increasingly 
attractive alternative.



- 129a -

Each party has an objective of breaking down harmful 

divisions among its supporters. The evidence suggests that 

plurality-win statutes or rules promote racial polarization and 

separation. Run-off provisions promote communication and 

collaboration among the various constituencies by which 

coalitions are built.

Everyone involved in this lawsuit agrees that racial 

polarization in voting, i.e., voting for someone simply 

because of his or her race, is bad. Everyone agrees that we 

look forward to the day when the qualifications of the 

candidates, their principles, programs and policies and their 

positions on the issues will dominate political debate.

The Court looks on the current malaise in Phillips 

County as a temporary phenomenon that will, over a relative 

short time, pass. The Court is convinced that the elimination 

of the run-off would tend to perpetuate racial polarization and 

bloc-voting. The existence of the run-off provision has the 

opposite tendency. The state and party policy behind the



- 130a -

primary run-off laws is, therefore not tenuous but, to the 

contrary, strong, laudable, reasonable and fair to all.

Having reviewed the Senate Report factors and some 

of the proof relating thereto, the Court must determine 

whether its positive findings with respect to many of those 

factors make it more probably true than not true that the 

challenged run-off provision makes the political processes not 

"equally open to participation" by blacks in that blacks have 

"less opportunity than whites to participate in the political 

process and to elect representatives of their choice."

It should be apparent by now that most of the positive 

findings with respect to the Senate Report factors have no 

tendency to prove, or disprove, that proposition. The truth is 

that focusing on some of those factors serves more as a 

distraction than a useful tool for evaluating the cause and 

effect operation of the challenged runoff laws.

CONCLUSIONS

This Court is not denying plaintiffs relief because it



- 131a -

hopes and believes that the normal democratic processes of 

give and take will, over time, move Phillips County and the 

other Delta counties beyond "race politics," although that, 

indeed, is its hope and belief. It is denying plaintiffs relief 

because they have failed to establish either the constitutional 

claim or their statutory claim. They have failed to prove that 

the primary runoff laws of the state of Arkansas were enacted 

or maintained for any racially discriminatory purpose, and 

they have failed to convince the Court that Section 2 applies 

to such runoff provisions given the demographics of the area 

and the manner in which runoffs operate. And, finally, 

assuming Section 2 would apply to runoffs in such 

circumstances, the proof does not sustain plaintiffs5 contention 

that the challenged provisions result in plaintiffs’ and other 

blacks’ having less opportunity than white citizens to 

participate in the political process or to elect candidates of 

their choice. Their complaint will, therefore, be dismissed.



- 132a -

ORDER DISMISSING THE GOVERNOR AND 
SECRETARY OF STATE AS DEFENDANTS

IN THE UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION

Sam Whitfield, et al., :

Plaintiffs, :

v. : Case No. H-C-86-47

Honorable Bill Clinton, et a l, :

Defendants. :

ORDER

Pursuant to the telephone conferences on March 1, 

1988 and March 4, 1988 the Court rules as follows:

1. The plaintiffs’ claim challenging the Arkansas 

general election statute, Ark. Code Ann. §7-5-106 is 

dismissed due to plaintiff’s failure to join the Phillips

County Election Commission, an indispensable party.

2. That the defendant class of county boards of



- 133a -

election commissioners of which the Phillips County 

Board of Election Commissioners was representative, 

will be decertified.

3. That the motion for summary judgment filed by 

separate defendants, Governor Bill Clinton and 

Secretary of State McCuen, is granted on the ground 

that they are not necessary parties and that no claim of 

wrongdoing has appropriately been asserted against 

those defendants. Accordingly, those defendants are 

dismissed.

4. That defendant Phillips County Democratic

Committee and the Phillips County Republican 

Committee be, and they are hereby, appointed as the 

named representatives on behalf of the following 

defendants’ class: all political parties’ county

committees in the State of Arkansas.

5. That the named defendants in this action are: 

The Democratic Party of the State of Arkansas, The



- 134a -

State of Arkansas Democratic Central Committee, The 

Phillips County Democratic Central Committee, and 

the Phillips County Republican Committee. As stated 

above, the Phillips County Democratic Committee and 

the Phillips County Republican Committee are 

appointed as the named representatives on behalf of 

all political parties’ county committees in the State of 

Arkansas.

6. That Mr. Tim Humphries will continue as

counsel for the above defendants.

It is so ORDERED this 4th day of March, 1988.

____________ /'SI_________________ _
UNITED STATES DISTRICT JUDGE

This document entered on docket sheet in compliance with 
Rule 59 and/or 79(a) on 3/7/88 bw



- 135a -

RELEVANT PORTIONS OF THE DISTRICT 
COURT’S ORAL RULINGS

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION

Sam Whitfield, et al., 

Plaintiffs, No. H-C-86-47

v.

Bill Clinton, et al.,

Little Rock, Arkansas 
March 4, 1988 
9:00 A.M.

Defendants.

TELEPHONE CONFERENCE

BEFORE THE HONORABLE G. THOMAS EISELE, 
United States District Court

APPEARANCES:

For the
Plaintiffs: OLLY NEAL, JR.,ESQ.

Wilson, Bell & Neal 
130 Columbia Street 
Helena, Arkansas 72342

LANI GUINIER, ESQ.
PAMELA S. KARLAN, ESQ.



- 136a -

99 Hudson Street, 16th Floor 
New York, New York 10013

For the
Defendants: TIM HUMPHRIES, ESQ.

Assistant Attorney General 
Heritage West Building 
201 East Markham Street 

Suite 310
Little Rock, Arkansas 72201

P R O C E E D I N G S

THE COURT: We are back in touch. The plaintiffs, 

of course, were asking the Court to reconsider its ruling on 

the standing or ripeness with respect to their proposed 

challenge to the general election run-off law and we have 

looked at some of the cases and I have had some second 

thoughts about it. But I note that even if I were to reverse 

my view on that, as far as just standing or ripeness is 

concerned, the necessary parties to raise that particular issue 

are not before the Court if I ’m right in my statement which 

I previously made that the file does not reflect that the



- 137a -

Phillips County Board of Election Commissioners was ever 

served, nor has it ever entered its appearance or filed any 

response voluntarily in this case.

So, we have essentially the Democratic party and the 

Republican party people who are necessary of course to 

challenge the primary run-off statute. But we do not have the 

appropriate or proper or necessary parties, it seems to me, to 

challenge the general election run-off.

Furthermore, again I get back to this question of 

standing and ripeness, and I indicated that I felt that the two 

run-off situations seem so entirely different. The primary 

run-off — the primaries are conducted to nominate people. 

General elections are conducted to elect people. You would 

not have a run-off in the general election unless you had an 

independent party running. In other words, you would have 

a Democrat and a Republican. If you had those two, there 

couldn’t be a run-off unless there was a tie, or if you had 

only the Democratic nominee of course there could be no run­



- 138a -

off, or if you had the Democrat and an independent there 

would be no run-off.

MS. KARL AN: Your Honor, the municipal elections 

are non-partisan. The municipal elections are covered by the 

general election run-off statute, so it wouldn’t be the case 

ever that you would have a person running under the 

Democratic label or under the Republican label. Everyone 

runs as an independent.

THE COURT: And they don’t file in the primaries at 

all.

MS. KARLAN: No, Your Honor.

THE COURT: They just file for the general election.

MS. KARLAN: Yes, Your Honor.

THE COURT: Which office are you talking about?

MS. KARLAN: Mayor of Helena, alderman;

elections such as those. There’s no party nomination system 

so there are often multiple candidates in the municipal general 

election because there’s no prior device for screening.



- 139a -

THE COURT: I see. That that’s not going to be a 

situation -  in other words, they are not going to go through 

the primary situation at all. It’s just going to be whoever - 

- what do they have to do?

MR. NEAL: By petition, Your Honor.

THE COURT: A certain number of petitions?

MR. NEAL: Certain number of signatures on the

petitions.

THE COURT: Well, then that particular type of run­

off could occur and probably, I guess, maybe will occur 

frequently. I ’m not sure. Let me ask you, though, on the 

more general proposition. Take the other offices, non­

municipal offices. Has there ever been a run-off under the 

1983 statute for a non-municipal office? Does anyone know?

MR. HUMPHRIES: For a county office, Your

Honor? I’m not aware of one. We have looked at that a 

little bit and I ’m just not aware of one.

THE COURT: I gather there’s never been a run-off



- 140a -

situation in Phillips County at any rate for a non-city -

MR. HUMPHRIES: Not for county elections.

THE COURT: Has there ever been one for a city

election?

MS. KARLAN: Yes, Your Honor.

THE COURT: In Phillips County?

MS. KARLAN: Yes, Your Honor, there were two in 

the 1986 general election.

THE COURT: Okay. Just for the record, those

offices were what?

MS. KARLAN: Mayor and municipal judge.

THE COURT: Okay. Well, I have the problem of 

looking at these, as I believe, different issues and I have the 

further problem of necessary parties. What’s your answer 

[sic] to that? You know, having the Democratic party and the 

Republican party before the Court is not a basis, it seems to 

me, to challenge general election run-off statutes. And I’m 

not sure that even if the other problems were out of the way



- 141a -

that we could go forward under the circumstances that we see 

here.

MS. KARLAN: Well, initially, Your Honor, although 

Mr. Humphries has made the argument that the role of the 

Secretary of State and the Governor in issuing the 

commissions is purely ministerial, if they are issuing 

commissions even in a ministerial capacity in a way that’s not 

in accordance with federal law, then the supremacy clause 

would permit you to enjoin them. So I think this suit could 

have been brought without any service on the election 

commission at all because the Governor and the Secretary of 

State must act in a particular way in order for those people to 

take office.

THE COURT: Well, I ’m inclined to disagree.

You’ve got to serve the people, it seems to me, who are 

charged with the duty of conducting the election you are 

challenging or to effectuate the statute that you are 

challenging. The Governor as such and the Secretary of State



- 142a -

as such are not those people.

MS. BELL: We are talking about Bankston Waters 

and Judge John L. Anderson. In other words, Your Honor, 

it’s my understanding that the chairman of the election 

commission was served.

THE COURT: That’s because he is head of the

Democratic party.

MS. GUINIER: He was served and one of the other 

members of the election commission was served, and then the 

Governor appoints the third person and the Governor was 

served.

THE COURT: Well, nobody is really taking the

view, are you, that you have the Phillips County Board of 

Election Commissioners served in this case?

MS. GUINIER: Your Honor, we are taking that

position.

MS. BELL: The People [sic] who are the Phillips 

County Election Commission have, in fact, been served.



- 143a -

THE COURT: If you sue the Democratic party and 

the Republican party and serve the chairman of those two 

parties, you have served two of the county board members - 

- members of the County Board of Election Commissioners, 

but you are not suing them as members of the County Board 

of Election Commissioners. You got service on them because 

of their roles as head of the party; the parties being the ones 

that conduct primary elections.

Well, I just think it’s much too risky and there is no 

reason to do it. We ought to have the proper people before 

the Court to defend the general election statute, and so I’m 

going to stay with my ruling both on the grounds of 

essentially having no concrete case, lack of ripeness, but more 

particularly I think at this stage we just don’t have the proper 

party before us and I don’t think we can make do by the 

methods suggested, various people served in various 

capacities. But if you are going [sic] to sue the County Board 

of Election Commissioners, I think you should have taken the



- 144a -

trouble to serve that board as such, and all the service papers, 

as I see it, are in the file and you can look and see what you 

have done in that respect. But I don’t see that you have.

I don’t know that that’s going to change anything in 

terms of what we are going to be facing on next week during 

the trial. I don’t know that it will shorten it or not — 

probably will not — [sic] but I do think it will give us a clear 

focus upon what is to be determined and the evidence which 

is pertinent to that determination.



- 145a -

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION

Sam Whitfield, et al., 

Plaintiffs, 

v.

Bill Clinton, et al.,

Defendants.

No. H-C-86-47 
Little Rock, Arkansas 
March 1, 1988 
3:00 P.M.

TELEPHONE CONFERENCE

BEFORE THE HONORABLE G. THOMAS EISELE, 
United States District Court

APPEARANCES:

For the
Plaintiffs: OLLY NEAL, JR.,ESQ.

Wilson, Bell & Neal 
130 Columbia Street 
Helena, Arkansas 72342

LANI GUINIER, ESQ.
PAMELA S. KARLAN, ESQ.
99 Hudson Street, 16th Floor 
New York, New York 10013



- 146a -

For the
Defendants: TIM HUMPHRIES, ESQ.

Assistant Attorney General 
Heritage West Building 
201 East Markham Street 

Suite 310
Little Rock, Arkansas 72201 

P R O C E E D I N G S

THE COURT: All right, folks, can you hear me? 

MR. HUMPHRIES: Yes, Your Honor.

THE COURT: Let me go through the list. Tim, you 

are there for the defendants.

Mr. Oily Neal?

MR. NEAL: Yes, sir.

THE COURT: And Ms. Pam Karlan?

MS. GUINIER: She’s here.

THE COURT: And Lani Guinier?

MS. GUINIER: I’m here.

THE COURT: All right. There are quite a few

things we need to deal with on this phone conference. We



- 147a -

have the court reporter. I’m going to go over the rulings 

that I think are appropriate and then discuss the various 

outstanding issues. It may be that another hearing or another 

conference might be necessary before the trial. If so, it might 

be conducted Friday. Perhaps it won’t be necessary.

Let me take up first a problem which I just noticed as 

I reviewed the file yesterday. It’s been mentioned to you by 

my law clerk, I think, and is a matter that has concerned me. 

The original complaint alleges that Sam Whitfield, Jr. ran as 

a candidate for the office of county judge of Phillips County 

in the Democratic primary of May 27, 1986. Linda Whitfield 

alleges that she was a candidate for the office of circuit clerk 

of Phillips County in the same Democratic primary. 

According to the complaint, Sam Whitfield received 34.6 

percent of the vote leading a field of three candidates, the 

other two of whom were white. Mrs. Linda Whitfield alleges 

that she received 36.8 percent of the vote leading the field of 

four candidates which included three whites. Both



- 148a -

erroneously alleged that they were forced into a run-off by 

virtue of the provisions of Section 3-616 of the Arkansas 

Statutes. They claimed that this majority run-off requirement 

was established by the Arkansas Legislature in 1983. They 

alleged that the Act was passed with haste as a result of the 

outcry of the white majority over the election of a black 

mayor in a city in Arkansas. Their complaint stated that 

prior to the election of the black mayor, the "run-off statute 

was viewed as unnecessary by the white-dominated legislature 

of the State of Arkansas." They therefore challenged the 

1983 Act codified as Section 3-616 of the Arkansas Statutes.

A motion to dismiss was filed challenging the standing 

of the plaintiffs on the ground that the run-off election was 

not held pursuant to Section 3-616. The defendants pointed 

out that Section 3-616 applied only to general elections 

concerning county or municipal offices and had nothing to do 

with run-offs in primary elections. The defendants did 

acknowledge that there is a run-off requirement for primary



- 149a -

elections. That requirement is found in Section 3-110, being 

Act 465 of 1969. They stated that the primary run-off statute 

of 1969 carried forward the run-off requirement established 

by earlier acts of the legislature, going back apparently to the 

early 1930’s. And if I read the briefs right, I gather that 

those early enactments just simply kept in effect what was the 

run-off requirement that had been established prior to that 

time by Democratic party rules. The defendants therefore 

asserted that the plaintiffs have no standing to challenge 

Section 3-616 since neither suffered injury as a result of the 

application of that statute and therefore there was no 

justiciable case or controversy pursuant to Article III of the 

U.S. Constitution. The Court being without jurisdiction, they 

argued that the case should be dismissed.

On October 17, 1986, this Court entered an order 

essentially agreeing with the contentions of the defendants. 

The order states, [sic] inter alia:

"The record clearly establishes that the run-off election



- 150a -

in which plaintiffs were defeated was not mandated by 

Arkansas Statute Section 3-616 as plaintiffs allege, and that 

therefore plaintiffs have no standing to attack this particular 

statute as they have attempted to do in this proceeding."

Then further down in the order I quote:

"While the plaintiffs are correct in claiming that 

Section 3-616 does require a run-off election in certain 

circumstances, and that it was adopted by the General 

Assembly in 1983, this particular statute had nothing to do 

with the elections of which plaintiffs complain. Section 3- 

616 governs the general elections of Arkansas; it has no effect 

on the party primaries in which the plaintiffs participated."

And then further on in that same order we find the 

following quotation:

"Thus, plaintiffs’ complaint is fundamentally flawed. 

Plaintiffs’ complaint clearly rests on the existence of Section 

3-616. But since plaintiffs have not suffered any harm by the 

workings of this statute in so much as they were defeated in



- 151a -

the party primary run-off, not the general election run-off 

prescribed in Section 3-616, plaintiffs have no standing to 

challenge this law."

The Court, while acknowledging the defect would 

warrant dismissal of the complaint, nevertheless decided to 

hold the matter in abeyance to permit plaintiffs to file a 

motion for leave to file an amended and substituted complaint. 

This ruling gave the plaintiffs an opportunity to move to 

amend and for the defendants to respond. The Court went on 

to say that it "will subsequently dispose with that motion 

along with the pending motion to dismiss."

On November 7, 1986, the plaintiffs were permitted 

to file and did file their Amended Complaint/Class Action. 

The amended complaint did challenge the primary run-off 

provisions of Section 3-110 but it also again attempted to 

challenge the general election run-off requirement of Section 

3-616. Apparently the defendants did not again specifically 

renew their motion to dismiss with respect to Section 3-616



- 152a -

for lack of standing but they did assert that the amended 

complaint "fails to state a claim upon which relief can be 

granted." And the answer of the Phillips County Democratic 

Committee denied the jurisdiction of the Court, and denied 

that "plaintiffs have standing to challenge the acts and statutes 

challenged in said complaint." That answer also stated that 

"the amended complaint filed herein fails to state a claim 

upon which relief can be granted."

Now when I reviewed the file yesterday I noted this 

standing problem with respect to Section 3-616. I have read 

all of the pretrial submissions, including the trial briefs and 

the memorandum in support of and opposition to the pending 

motion for summary judgment and I find nothing in the 

plaintiffs’ submissions to cause me to change the opinion 

which I expressed in my [sue] order of October 17, 1986, and 

that they have no standing to challenge Section 3-616.

Now the failure of the defendants and the Court to 

pick up on the standing challenge with respect to Section 3-



- 153a -

616 has led to an inappropriate class certification with respect 

to certain of the defendants. Since the plaintiffs have no 

standing to challenge the general election run-off statute, 

Section 3-616, they would also be inappropriate 

representatives of a class of persons wishing to challenge that 

statute. Of course, the plaintiffs were not certified as 

representatives of such a class. However, the problem arises 

with respect to the certification of the Phillips County Board 

of Election Commissioners as representative of a class of all 

county boards of election commissioners in the state.

The Court first notes that the Phillips County Board of 

Election Commissioners was not made a party in the original 

complaint. It was first named as a party in the amended 

complaint filed November 7, 1986. Paragraph 14 of the 

amended complaint states that the Phillips County Board of 

Election Commissioners "is responsible for overseeing the 

conduct of elections within Phillips County, Arkansas." 

However, the law appears [sic] to be clear that the primary



- 154a -

elections are not conducted by the county boards of election 

commissioners but, rather, by the political parties. See Ark, 

Stats, as more recently codified 7-7-101, et. seq. Since the 

Court is ruling that the plaintiff has no standing to challenge 

the general election run-off statute, neither the Phillips County 

Board of Election Commissioners individually or as a 

representative of other county boards of election

commissioners, is an appropriate party defendant. 

Furthermore, the file does not reflect that the Phillips County 

Board of Election Commissioners was ever served, nor has it 

ever entered its appearance or filed any response voluntarily, 

so far as I could determine from a quick review of the file. 

Therefore, the Phillips County Board of Election

Commissioners will be dismissed from this case and the class 

of county boards of election commissioners of which the 

Phillips County Board was the representative, will be de­

certified.

The Court is also persuaded that the motion for



- 155a -

summary judgment filed by the defendants Governor Bill 

Clinton and Secretary of State McCuen should be granted on 

the ground that they are not necessary parties and that no 

claim of wrongdoing has appropriately been asserted against 

those defendants. Neither the State Board of Election 

Commissioners nor any of its members are named as 

defendants in the amended and substituted complaint. 

Apparently they were named in the original complaint, at least 

certain of the constitutional officers, some of which are 

members of that board of election commissioners. As pointed 

out by the separate defendants, if the Court were to require 

that the defendant political county committees certify certain 

candidate^ "then separate defendants Clinton and McCuen 

cannot exercise their legal functions in any way other than to 

issue commissions and certify those candidates certified to 

them, since, they only commission and certify candidates and 

results certified by local authorities." There is no basis in the 

alleged facts or otherwise to suggest they would not folow



- 156a -

their duty in conformance with the statements which they 

made in their motion.

Since no cause of action upon which relief could be 

granted in favor of plaintiffs has been propery asserted against 

defendants Bill Clinton and W. J. McCuen, those defendants 

will be dismissed from the lawsuit.

Now when the Court was dealing with the class 

certification issue with respect to the county committees of 

political parties in the State of Arkansas, it ordered that "the 

defendant Phillips County Democratic Committee and the 

Phillips County Republican Committee be and they are hereby 

appointed as the named representatives on behalf of the 

following defendants’ class: all political parties’ county

committees in the State of Arkansas." In order to carry out 

this order it directed that the Phillips County Republican 

Committee be served and made a party for the purpose of 

establishing an appropriate defendant class. See order of 

April 13, 1987. The file reflects that the summons and



- 157a -

complaint was served upon the Phillips County Republican 

party Committee in care of Mr. Bankston Waters on May 9, 

1987.

Neither the Republican party nor the Phillips County 

Republican Committee are named in the amended complaint. 

Obviously they had nothing to do with the conduct of the 

Democratic primary of which the plaintiffs, Sam Whitfield, 

Jr. and Linda Whitfield, complain. However, the Phillips 

County Republican Committee, just like the Phillips County 

Democratic Committee, is charged with the duty of 

conducting preferential primary and general primary elections 

under Arkansas law. If it should turn out that prospective 

and injunctive relief is found to be appropriate in connection 

with the primary run-off law, then both political parties would 

be or could be affected thereby.

The Court is further concerned about the breadth of 

the defendants5 class certification of the Phillips County 

Democratic and Republican Committees as representatives of



- 158a -

all such committees in the State of Arkansas. It is having 

some second thoughts about the breadth of that order. 

However, it will not disturb that certification at this time.

The Court has some doubt whether a cause of action 

has appropriately been asserted against the Democratic party 

of the State of Arkansas or the Democratic Central 

Committee. However, no motion to dismiss has been filed 

with respect to those parties [sic] and it is possible that it 

could be useful to have them as parties if prospective 

injunctive relief were found to be appropriate. Therefore, it 

looks as the case goes to trial as if the defendants are the 

Democratic Part of the State of Arkansas, the Democratic 

State Committee and the Phillips County Democratic and 

Republican Committees and this emphasizes what we are 

about here, which is a challenge of the run-off provisions 

dealing with primary elections. And I am convinced that this 

is the full scope of the standing of the plaintiffs and the focus 

that should be — which we should have during the trial.



- 159a -

I want to get some factual information if I can. Going 

back to the election in which the Whitfields ran — that was 

May 27 of 1986. Is there anyone there who can tell me 

whether there was a Republican candidate in the 1986 general 

election following those primary elections? That is, in the 

general election in November, was there a Republican and a 

Democrat? And I also want to know whether anybody knows 

whether, in that election, there was an independent candidate. 

Can anybody speak to that?

MR. NEAL: I can speak to it. There was neither an 

independent candidate nor a Republican candidate for the 

office of county judge in the November election.

THE COURT: As I understand it, Mr. Neal, the law 

had been changed prior to that election so that the filing time 

for independent candidates, the deadlines, were the same as 

with those who wanted to run in the party primaries.

MR. NEAL: That is correct.

THE COURT: So the effect of this would have been



- 160a -

that had the Whitfields — had there been no run-off in the 

primary, they would have been elected without opposition in 

November because there was no Republican running against 

them and there was no independent party running against 

them.

MR. NEAL: That’s my information.

THE COURT: That, I think, emphasizes again the 

lack of standing with respect to the general election run-off 

which is contemplated by Section 3-616. So let me find out 

a few more things as we get further into the discussions.

MS. KARLAN: Your Honor, is it possible for us to 

respond at some point during this conference call to your 

orders?

THE COURT: Yes, you may. Perhaps what I should 

do is just stop now and give you a chance to comment and 

make your statements. Now, would you state your name, 

each person who talks, for the purposes of the record. Go 

ahead and state. Try to change my mind. Who wants to



- 161a -

speak?

MS. KARLAN: Pamela Karlan. I ’m one of the

attorneys for the plaintiff.

THE COURT: Go right ahead.

MS. KARLAN: With regard to Your Honor’s ruling 

on standing, the standing of the plaintiffs here is not being 

brought in their capacity as candidates for election at any 

particular election; rather their standing rests on the fact that 

they are registered voters in Phillips County and in the State 

of Arkansas. The practices that they are challenging — this 

is not a challenge to the particular result of any election. We 

are not seeking to have the 1986 election overturned or any 

other particular election results. Rather, this case represents 

a structural challenge to particular structural features of the 

election law in Arkansas; and the fact that no particular black 

candidates have lost any election as a result of the general 

run-off law is not in itself a barrier to standing.

With regard to that, I simply refer Your Honor to



- 162a -

page 28 of the Senate Report, Senate Report 97-417 in 1982 

which the Supreme Court has interpreted as an authoritative 

guideline for interpreting Section 2 cases. In the middle of 

that page the Senate Report states that Section 2 protects the 

right of minority voters to be free from election practices, 

procedures, or methods that deny them the same opportunity 

to participate in the political process as other citizens enjoy. 

The standing of the plaintiffs here, therefore, rests on their 

status as voters; not in their status as candidates.

In that regard I think there need not have been a black 

candidate already who has lost an election because of a 

particular practice for there to be standing. The Supreme 

Court held that in Thornburg against Gingles — the citation 

which is 92 Lawyer [sic] Edition 25, 1986. In addition, 

several lower courts have since then found standing for 

plaintiffs and in some cases found liability despite the fact 

that no black candidates have run.

With regard to that, Your Honor, I refer you first to



- 163a -

Martin against Allain, 658 F.Supp. 1183, a case from the 

Southern District of Mississippi in 1987 and Chisom against 

Edwards, a case decided yesterday by the Fifth Circuit 

challenging the use of multi-member districts for the 

Louisiana Supreme Court, even though no black candidate had 

run, and challenging the standing of plaintiffs in that case to 

challenge the electoral mechanism. The Supreme Court found 

they had stated a claim and were entitled to provide the 

evidence at trial to show that results had been violated.

THE COURT: Well, you know, I’m going to look at 

those two cases. The last one is the Chisom case, and it was 

decided yesterday?

MS. [sic] KARLAN: Yes, Your Honor.

THE COURT: And it’s the Fifth Circuit?

MS. KARLAN: Yes.

THE COURT: We can get it on the facsimile

machine.

But my view of standing makes really the Senate



- 164a -

statement perhaps irrelevant. There’s been no [sic] showing 

that the run-off provision of general elections has harmed the 

blacks or any other plaintiffs, and all you could be showing, 

I think, is that it could possibly harm them. You would 

deprive the Court of any particularized investigation of the 

consequence of the statute in terms of the actual 

circumstances pertaining in the county in connection with 

general elections. We would be dealing with an abstract, 

theoretical question. We would not be dealing with a 

concrete circumstance.

Now, I ’m going to review those to see if they cause 

me to change my mind. But I don’t believe they do. I think 

the opinion I first expressed is correct back when the original 

motion to dismiss was filed. I also think it really runs 

contrary to the theory of Section 2 of the Voting Rights Act 

that you would deal with these issues abstractly on the basis 

of potentials without any actual showing of harm. I say this 

particularly because reading all these cases has led me to



- 165a -

believe that the particular local circumstances can have a 

dramatic — can dramatically change the results in terms of 

whether run-off is good or bad for minorities. It cannot be 

dealt with, as I see it, in sort of an abstract question. At 

least that’s my view. I might change my mind after reading 

the cases, and I certainly will.

Do you have anything [sic] else to say in connection 

with the standing problem?

MS. KARL AN: Yes, Your Honor. In addition to the 

plaintiffs’ results claim under Section 2 with regard to now 

what’s Section 7-5-106, we are also challenging the general 

election run-off statute on the grounds that it was adopted 

with a discriminatory intent in that it was designed and was 

motivated in part by a desire to dilute black voting strength.

Now with respect to that claim, there is some division 

as to precisely the level the plaintiffs must show, but it’s clear 

it need not rise to the level of effect that need be shown under 

the results test. With respect to that, Your Honor, I think



- 166a -

that the plaintiff has standing to challenge a law that was 

adopted with a discriminatory intent before they go through 

the futile effort of running candidates in a race which the 

candidates are, by the structural nature of the provision, 

doomed to lose.

THE COURT: Well, I think your second statement is 

the more correct one. I don’t believe that you are correct 

when you assert that as maybe one or two cases of that 

proving discriminatory intent in the enactment is all you have 

to prove. I think it’s — certainly if you have some 

discriminatory effect, then, you know, you don’t need to 

prove nearly as much discriminatory intent. I agree on that 

proposition, but I don’t believe you can simply attack a 

statute as soon as its passed by the legislature on that ground 

without having some basis for showing its application in some 

concrete contention in which a person is harmed by the 

statute.

So, in other words, the concepts of standing, I think,



- 167a -

are what we are really in disagreement about. It requires a 

concrete case in controversy and not just an abstract question 

that something — that a run-off provision could possibly harm 

you.

MS. KARL AN: I understand, you know, that Article 

III prohibits advisory opinions, but I think the footnote in 

Gingles regarding how you would go about, for example, 

showing racial polarization if the minority [sic] has not 

sponsored any candidates since a particular practice was 

instituted shows that the Supreme Court at least does not view 

the fact that there is not a particular election result being 

challenged to preclude its access to lawsuit.

THE COURT: I guess what you could do here — I 

don’t know how many other run-off statutes there are in 

Arkansas, but I guess there are probably several. I’m not 

sure. Are there? Are there other run-off statutes that you are 

familiar with in Arkansas?

MS. KARL AN: No, Your Honor. I believe that the



- 168a -

two statutes are the primary election statutes, which was 3- 

110(a) at the time the lawsuit was filed and the municipal and 

county office statute, which was 3-616 at the time the lawsuit 

was filed. I’m not aware of any other run-off statutes.

THE COURT: Well, you know, I’m going to stand 

by my ruling until I convince myself that I ’m wrong. I ’m 

going to read the cases and review the points that you have 

made and we’ll shortly get back with you. If I change my 

mind, I will be telling you tomorrow, getting word to you 

through my law clerk at least.

MS. KARLAN: Your Honor, just one more thing on 

this aspect of the case. If Your Honor decides that there is 

no standing with regard to the general election run-off statute, 

I think for purposes of this case it would make a great deal 

of sense, both to get a written opinion and perhaps to have a 

final appealable order entered on it so the case isn’t tried 

piece-meal, assuming that eventually we are able to show that 

we have standing to challenge both the general election and



- 169a -

the primary run-off statutes.

THE COURT: Well, this order and my discussion of 

it is on the record and an order itself will be entered if I stay 

with this position dismissing the attack or the challenge to the 

general run-off provision and so the record will be complete.

As far as if the idea is that you want to appeal that 

before you try the case, you know, it’s so different a situation

— that is, the general election from the primary, as I see it -

- that there is no reason not to go ahead and try the attack on 

the primary law even if you reverse me on the other, in other 

words, and have to come back and try the general. They are 

just two separate and different animals, as I see it, and I don’t 

know of any harm that would come from trying them 

separate. But in any even, we are going to be entering an 

order pursuant to this after I convince myself I ’m right, if 

you don’t change my mind, and there it will be. You can 

either move for a continuance or move to appeal and go 

through all that if you want to; but my general inclination is



- 170a -

to proceed with the trial of the real conflict presented by the 

Whitfields when they filed the complaint, which is an 

attack on the primary run-off, which is entirely different, as 

I analyze it, from run-offs in general elections which also 

may be challenged to have different factors at work and are 

really different at, as I see it.

In any event, you will have a formal ruling and I 

might supplement it with some analysis of the cases, but at 

this you have what I have said on the record and that’s all 

you really need if I don’t say anymore. There will be an 

order entered probably tomorrow making the ruling explicit.



- 171a -

STATUTES IN ISSUE

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

(a) No voting qualification or prerequisite 
to voting or standard, practice, or procedure 
shall be imposed or applied by any State or 
political subdivision in a manner which results 
in a denial or abridgement of the right of any 
citizen of the United States to vote on account 
of race or color, or in contravention of the 
guarantees set forth in section 4(f)(2), as 
provided in subsection (b).

(b) A violation of subsection (a) is 
established if, based on the totality of the 
circumstances, it is shown that the 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 
protected by subsection (a) in that its members 
have less opportunity than other members of 
the electorate to participate in the political 
process and to elect representatives of their 
choice. The extent to which members of a 
protected class have been elected to office in 
the State or political subdivision is one 
circumstance that may be considered: Provided,
That nothing in this section establishes a right 
to have members of a protected class elected in 
numbers equal to their proportion in the 
population.



- 172a -

Ark. Stat. Ann. § 7-5-106 provides, in pertinent part:

(a) Whenever there are more than two (2) 
candidates for election to any county elected 
office, including the office of justice of the 
peace, or for any municipal office at any 
general election held in this state, and no 
candidate for the municipal or county office 
receives a majority of the votes cast for the 
office, there shall be a runoff general election 
held in that county or municipality two (2) 
weeks following the date of the general election 
at which the names of the two (2) candidates 
receiving the highest number of votes, but not 
a majority, shall be placed on the ballot to be 
voted upon by the qualified electors of the 
county or the municipality, as the case may be. 
The person receiving the majority of the votes 
cats for the office at the runoff general election 
shall be declared elected.

Ark. Stat. Ann. § 7-7-102:

(a) Nominees of any political party for 
United States Senate, United States House of 
Representatives, state, district, or county office 
to be voted upon at a general elected shall be 
certified as having received a majority of the 
votes cast for the office, or as an unopposed 
candidate, at a primary election held by the 
political party in the manner provided by law.

(b) Nominees of any political party for 
township or municipal office shall be declared



- 173a -

by certification of a primary election as 
provided in subsection (a) of this section.

Ark. Stat. Ann. § 7-7-202 provides, in pertinent part:

(a) Whenever any political party shall, by 
primary election, select party nominees as 
candidates at any general election for any 
United States, state, district, county, township, 
or municipal office, the party shall hold a 
preferential primary election and a general 
primary election . . . .

(b) A general primary election shall not be 
held if there are no races where three (3) or 
more candidates qualify for the same office or 
position as provided in subsection (c) of this 
section, unless a general primary election is 
necessary to break a tie votre for the same 
office or position at the preferential primary.

(c) If there are no races where three (3) or 
more candidates qualify for the same office or 
position, only the preferential primary election 
shall be held.



I

I