Pleasant Grove v. United States Motion for Leave to File and Brief Amicus Curiae
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August 2, 1986

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Brief Collection, LDF Court Filings. Pleasant Grove v. United States Motion for Leave to File and Brief Amicus Curiae, 1986. 00be4c56-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/60732054-bc42-4a5e-a273-d06df9bcfaff/pleasant-grove-v-united-states-motion-for-leave-to-file-and-brief-amicus-curiae. Accessed July 11, 2025.
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No. 85-1244 In T he (ftmirt nf % Inttpii States October Term, 1985 C ity of Pleasant G rove, Appellant, v. T he U nited States of America, Appellee. On A ppeal from the U nited States D istrict Court for the D istrict of Columbia MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF OF THE DEMOCRATIC NATIONAL COMMITTEE AS AMICUS CURIAE Joaquin Avila One Warm Springs Professional Center, 200 Brown Road (Suite 114), Fremont, Calif. 94539 (415) 651-7724 Armand Derfner McClain & Derfner P.O. Box 608, Charleston, S.C. 29402 (803) 577-3170 Of Counsel. August 2, 1986 David Boies (Counsel of Record) Stephen D. Poss Cravath, Swaine & Moore One Chase Manhattan Plaza, New York, N.Y. 10005 (212) 422-3000 Attorneys for the Democratic National Committee as Amicus Curiae D em ocratic Democratic National Committee ^JNCW o Releases Monday* August 4, 1986 Contact: Terry Michael, DNC Press Secretary, 202/863-8020 DEMOCRATIC NATIONAL COMMITTEE FILES AMICUS BRIEF IN PLEASANT GROVE VOTING RIGHTS ACT ANNEXATION CASE WASHINGTON — Democratic National Chairman Paul G. Kirk, Jr. announced Monday that the Democratic National Committee has filed an amicus brief with the U.S. Supreme Court in the Voting Rights Act case, City of Pleasant Grove v. U.S. "This case involves the important matter of municipal annexation," Kirk said, "one of the most significant issues in current Voting Rights Act litigation. "Because of the Democratic Party’s long and continuing support for voting rights and because of the significance of this case, I thought it especially important for the Party to speak to the Court on this issue. “The Democratic Party is committed to fulfilling the mandate of our 1984 Platform, which calls for use of our ’full resources.... to investigate and root out any discriminatory voting barriers.’" In an appeal to the Supreme Court, the City of Pleasant Grove, Alabama is seeking to overturn a decision on its proposed annexation action by a three-judge federal district court panel. The lower court ruled that the city’s effort to annex a parcel of land violates Section 5 of the Voting Rights Act, which prohibits actions that have the purpose or effect of denying or abridging the right to vote on the basis of race or color. The Democratic Party brief was prepared by David Boies and Stephen D. Poss, of the law firm Cravath, Swaine & Moore of New York City; Joaquin Avila, of Fremont, Ca.; and Armand Derfner, of McClain & Derfner, Charleston, S.C. Avila and Derfner, noted authorities on the Voting Rights Act, and Boies are members of the DNC’s National Lawyers Council, appointed by Kirk earlier this year and chaired by Jane Harman of the District of Columbia. The issue in the Pleasant Grove case "is a narrow one," the DNC / Page brief asserts. "Can an all-white municipality purposeful discrimination, having successfull residents for decades, escape scrutiny under Rights Act because it has no black residents be diluted?' with a long history of y excluded black Section 5 of the Voting whose voting power can The brief contends that the city has a past history of annexing all-white-populated parcels of land and denying annexations of areas with black residents, who have sought to participate in the adjacent municipal government from which they receive services. Pleasant Grove has contended that there will be no effect on black voting strength in its proposed annexation because the area is unpopulated. The DNC brief refutes the Pleasant Grove claim, noting that Section 5 'is a rule aimed not only at present violations but also at threats of future ones.' It notes the lower court ruling, which found the likelihood "that the Western Addition will become an all-white enclave upon being incorporated into Pleasant Grove." The city has also argued that “because there were no black voters in Pleasant Grove...these annexations neither reduced the proportion of black voters...nor denied black voters representation equal to their political strength in an enlarged community.' The DNC brief rebuts that contention, noting that: "For the city to use its racial homogeneity as a rationale for escaping review under the Votings Rights Act is cynical in the extreme. "Pleasant Grove’s policies of racial discrimination and exclusion in virtually every walk of life are undeniably largely responsible for the city’s failure to attract black residents. Allowing the city to bootstrap its legacy of discrimination into a successful end—run around the Voting Rights Act would send a perverse signal that discrimination can be its own reward. 'The Court must not send that message,' the Democratic Party brief concludes. The DNC National Lawyers Council, in cooperation with DNC General Counsel Joseph A. Rieser, Jr., is 'assisting the Party on projects in the areas of voter registration and voting rights enforcement, as well as reapportionment, delegate selection and other legal issues of relevance to the DNC,' according to Council Chair, Jane Harman. The Council has a 24-member executive committee, a membership list for which is attached. - 3 0 - August 4, 1986 Executive Committee of the DNC Lawyers' Council Joanquin Avila 855 Hidatsa Court Fremont, California 94539 Yvonne Braithwaite Burke Burke, Robinson & Pearman 1925 Century Dark East Suite 350 Los Angeles, California 90067 Professor Walter Dellinger Duke Law School Durham, North Carolina 27706 Thomas Ehrlich Provost, University of Pennsylvania 102 College Hall Philadelphia, Pennsylvania 19104 John P. Frank Lewis and Roca First Interstate Bank Plaza 100 West Washington Street Phoenix, Arizona 85003-1899 Anthony Harrington Hogan & Hartson 815 Connecticut Avenue, N.W. Washington, D. C. 20006 Scott W. Lang Lang, Straus, Xifaras & Bullard, P.A. 81 Hawthorne Street New Bedford, Massachusetts 02740 Professor Eleanor Holmes Norton Georgetown University Law Center Washington, D. C. 20001 Charles B. Renfrew Chevron Corporation 225 Bush Street San Francisco, California David Boies Cravath, Swaine & Moore One Chase Manhattan Plaza New York, New York 10005 Hugh Calkins Jones, Day, Reavis & Pogue 1700 Huntington Building Cleveland, Ohio 44115 Armand Derfner McClain S. Derfner P.O. Box 608 Charlestown, South Carolina 29402 Charles Ferris Mintz Levin Ferris Glovsky & Popeo, P.C. 1825 Eye Street, N.W. Washington, D. C. 20006 Jane Harman, Chair Wender Murase & White 1120 Twentieth Street, N.W. Suite 650, South Lobby Washington, D. C. 20036 Vernon Jordan, Jr. Akin Gump Strauss Hauer & Feld 1333 New Hampshire Avenue, N.W. Washington, D. C. 20036 Harry McPherson Verner Liipfert Bernhard McPherson and Hand 1660 L Street, N.W. Washington, D. C. 20036 Steven C. Oaks Butler & Binion Allied Bank Plaza Houston, Texas 77002 Joseph A. Rieser, Jr. Reed Smith Shaw & McClay 1150 Connecticut Avenue, N.W. Washington, D. C. 20036 Page 2 National Lawyers' Council John H. Ruffin, Jr. P.0. Box 1625 1101 Eleventh Street Augusta, Georgia 30903-1625 Chesterfield Smith Holland & Knight 1200 Brickell Avenue, 14th Floor Miami, Florida 33101 Louis Susman Thompson & Mitchell One Mercantile Center St. Louis, Missouri 63101 Burton D. Sheppard Sullivan & Worcester One Post Office Square Boston, Massachusetts 02109 Cathleen Douglas Stone Fine & Ambrogne Exchange Place Boston, Massachusetts 02109 Jill Wine-Banks Deputy Attorney General, Illinois 100 West Randolph Street 12th Floor Chicago, Illinois 60601 No. 85-1244 In The £>uprmr (Hour! of tljr Initpft §>tatpH October T erm, 1985 C ity of Pleasant G rove, Appellant, v. T he United States of America, Appellee. On A ppeal from the U nited States D istrict Court for the D istrict of Columbia MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE Pursuant to Rule 36 of the Rules of the Supreme Court of the United States, the Democratic National Committee respect fully moves for leave to file a brief amicus curiae in the above- captioned proceeding, and in support thereof states: 1. While appellee has consented to filing of the attached brief amicus curiae, appellant has refused the Democratic National Committee’s request for such consent. 2. As explained more fully in the attached brief, failure to affirm the decision below would substantially and adversely affect the Voting Rights Act, landmark legislation with respect to which the Democratic National Committee has a vital and continuing interest as well as special expertise not possessed by the parties. 3. Accordingly, the Democratic National Committee seeks this opportunity to make its views known to the Court and to assist the Court in its decision in this proceeding. Counsel for the Democratic National Committee hereby respectfully request that the Court grant this Motion for Leave to File Brief Amicus Curiae. Respectfully submitted, David Boies (Counsel of Record) Stephen D. Poss Cravath, Swaine & Moore One Chase Manhattan Plaza, New York, N.Y. 10005 (212) 422-3000 Attorneys for the Democratic National Committee as Amicus Curiae Joaquin Avila One Warm Springs Professional Center, 200 Brown Road (Suite 114), Fremont, Calif. 94539 Armand Derfner McClain & Derfner P.O. Box 608, Charleston, S.C. 29402 Of Counsel. August 2, 1986 1 TABLE OF CONTENTS PaRc T able of Authorities............................................................... i Interest of Amicus Curiae...................................................... 1 Introduction and Summary of Argument....................... 2 Argument..................................................................................... 3 Pleasant Grove’s Annexation Plan Violates Section 5 of the Voting Rights Act............................................. 3 A. Pleasant Grove’s Annexation Plan Has the Impermissible Purpose of Depriving Blacks of Their Political and Voting Rights............ 5 1. Pleasant Grove’s Discriminatory Record Towards Annexation Requests............ 7 2. Pleasant Grove’s Record of Distortions .. 8 3. Pleasant Grove’s Long History of Racial Discrimination....................................... 10 B. Pleasant Grove’s Annexation Plan Would Have the Impermissible Effects of Depri ving Blacks of Voting Rights and of Rewarding the City for Its Past Dis crimination ...................................................... 11 1. The Fact that the Western Addition is Presently Uninhabited in No Way Minimizes the Deleterious Impact the Annexation Would Have Upon Blacks 12 2. A Decision to Authorize Pleasant Grove’s Annexation Plan Would Have the Impermissible Effect of Rewarding the City for its Past Dis crimination ............................................. 15 16Conclusion TABLE OF AUTHORITIES Page Cases: Allen v. State Board o f Elections, 393 U.S. 544 ( 1969)...... 4 Beer v. United States, 425 U.S. 130 ( 1976).......................... 14 Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), a ff’d 459 U.S. 116 ( 1983).............................................. . . 10 City o f Lockhart v. United States, 460 U.S. 126 ( 1983)...... 6 City o f Petersburg v. United States, 354 F. Supp. 1021 (D.D.C. 1972), aff'd, 410 U.S. 962, aff'd, 412 U.S. 901 ( 1973)................................................................................... 4, 6 City o f Pleasant Grove v. United States, 568 F. Supp. 1455 (D.D.C. 1983)....................................................................... passim City o f Pleasant Grove v. United States, 623 F. Supp. 782 (D.D.C. 1985)....................................................................... passim City o f Port Arthur v. United States, 459 U.S. 159 ( 1983)... 4, 5, 6 City o f Richmond v. United States, 422 U.S. 358 ( 1975)...... 4, 6, 12, 14 City o f Rome v. United States, 446 U.S. 156 ( 1980)............ 4, 6 Dougherty County Board o f Education v. White, 439 U S. 32 ( 1978).............................................................................. 13 Georgia v. United States, 411 U.S. 526 ( 1973).................... 4 Gomillion v. Lightfoot, 364 U.S. 339 ( 1960)........................ 12 Lane v. Wilson, 307 U.S. 268 ( 1939).................................... 14 Perkins v. Matthews, 400 U.S. 379 ( 1971)........................... 4, 12 Pullman-Standard v. Swint, 456 U.S. 273 ( 1982)................ 6 Rogers v. Lodge, 458 U.S. 614 ( 1982)................................... 6, 7, 10 South Carolina v. Katzenbach, 383 U.S. 301 (1966).......... 3 Stout v. Jefferson County Board o f Education, No. 65-396 (N.D. Ala. 1969)................................................................. 10 Stout v. Jefferson County Board o f Education, No. 72- 1102, (N.D. Ala.), a ff’d, 466 F.2d 1213 (5th Cir. 1972), cert, denied, 411 U.S. 930 (1973)....................................... 10 ii Ill Page Thornburg v. Gingles, 106 S.Ct. 2752 ( 1986)....................... 6 Village o f Arlington Heights v. Metropolitan Housing De velopment Corp., 429 U.S. 252 ( 1977).............................. 10 Washington v. Davis, 426 U.S. 229 (1976).......................... 10 Wheeler v. City o f Pleasant Grove, No. 78-6-1150-5 (N D Ala. 1979).................................................................. ' ........ ̂ 10 Statutes: 42 U.S.C. § 1973c...................................................................... 3 ,4 ,5 Other Authorities: Motomura, Preclearance Under Section Five o f the Voting Rights Act, 61 N.C.L. Rev. 189 ( 1983)............................ 13 In The §>uprrm? (Eourt nf % llnttpft &tatrs October T erm, 1985 No. 85-1244 C ity of Pleasant G rove, Appellant, v. T he United States of America, Appellee. On Appeal from the United States D istrict Court for the D istrict of Columbia BRIEF OF THE DEMOCRATIC NATIONAL COMMITTEE AS AMICUS CURIAE INTEREST OF AMICUS CURIAE The Democratic National Committee has general responsi bility for the conduct of the affairs of the Democratic Party between the Party’s National Conventions. It is composed of representatives from the Party’s constituent party organizations in each of the several states, the District of Columbia and American Territories; of delegates elected at large; and of several ex officio members drawn from other affiliated organi zations. As one of the country’s two major political parties, the Democratic Party is deeply familiar with the status of voting rights and electoral practices across the country. It has had a long and abiding interest in civil rights, and in particular, voting rights. 2 The Democratic Party was present at the creation of the Voting Rights Act. The Act, enacted in 1965, is part of the legacy of President John F. Kennedy and one of the proudest achievements of President Lyndon B. Johnson. In the twenty- one years since 1965, this country, particularly the South, has made enormous strides in the area of voting rights. It is closer now than ever to fulfilling the promise of the Fifteenth Amend ment: that “ the right of citizens of the United States to vote shall not be denied or abridged on account of race, color or previous condition of servitude”. Yet, as the Democratic Party realized when it fought for the extension of the Act in 1982, and when it pledged in its 1984 platform to use its “ full re sources . . . to investigate and root out any discriminatory voting barriers”, strict and vigorous enforcement of the Act remains necessary. The Democratic Party is filing here as amicus curiae because it has a special interest in this landmark legisla tion—and because it believes that if appellant prevails, the spirit and the purpose and the promise of the Voting Rights Act will be irreparably injured. Appellant’s view would do nothing less than create a retroactive “grandfather clause” that would give Pleasant Grove and towns like it—towns which have successfully preserved the last vestiges of the discrimination of the Old South—a virtual exemption from scrutiny under Sec tion 5 of the Voting Rights Act. The Court’s decision here could thus well determine the scope and vigor of the voting rights and civil rights legislation that the Democratic Party and others have fought so hard to achieve. INTRODUCTION AND SUMMARY OF ARGUMENT The issue before this Court is a narrow one: Can an all- white municipality with a long history of purposeful dis crimination, having successfully excluded black residents for decades, escape scrutiny under Section 5 of the Voting Rights Act because it has no black residents whose voting power can be diluted? 3 The all-white city of Pleasant Grove, Alabama, seeks a declaration under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, that its proposed annexation of a large, uninhabited parcel of land to its west has neither the purpose nor the effect of denying or abridging the right to vote on account of race or color. Appellant Pleasant Grove bases its argument on the fact that it has no black residents and therefore its planned annexation cannot reduce black voting strength. As we show below, Pleasant Grove’s plan falls afoul of both the “purpose” and the “effect” prongs of Section 5. The annexation proposal is animated by the same racially dis criminatory intentions that have infected numerous Pleasant Grove policies, including those involving housing, zoning, hiring and education. Moreover, Pleasant Grove’s plan would have the unmistakable effect of rewarding an all-white enclave for its extraordinary record of unmitigated past discrimination. Accordingly, this Court should affirm the judgment of the district court below and reject Pleasant Grove’s request for declaratory judgment. ARGUMENT PLEASANT GROVE’S ANNEXATION PLAN VIOLATES SECTION 5 OF THE VOTING RIGHTS ACT. The Voting Rights Act of 1965 was designed to eradicate “ the blight of racial discrimination in voting”, “ an insidious and pervasive evil” that had dogged parts of the South since Reconstruction. South Carolina v. Katzenbach, 383 U.S. 301, 308, 309 (1966). The Act featured many stringent re medies—including bans on literacy tests and poll taxes and the imposition of federal monitors to scrutinize state com pliance—but none was more essential than its Section 5. That section provided for the suspension of all new voting practices pending federal review and it flatly forbade states and localities from instituting any new such practices that had either the purpose or the effect “of denying or abridging the right to vote 4 on account of race or color”. 42 U.S.C. § 1973c. In the years since its enactment, Section 5 has been deployed to monitor a range of potentially racially discriminatory voting practices, including reapportionment schemes,1 changes in voting proce dures,2 changes in forms of government,3 and, most important for this case, municipal annexation plans.4 It is against this backdrop of vigorous judicial enforcement of Section 5 that appellant Pleasant Grove, an all-white Ala bama municipality with a long legacy of racial discrimination, seeks a declaration from this Court that its plan to annex the uninhabited “Western Addition” is permissible.5 The crux of 1 See, e.g., Georgia v. United States, 411 U.S. 526 ( 1973) (state forbidden from holding elections under reapportionment scheme deemed to violate Section 5). 2 See, e.g., Allen v. State Board of Elections, 393 U.S. 544 (1969) (broad array of electoral changes in Mississippi and Virginia held invalid in absence of Section 5 approval). 3 See, e.g., City of Rome v. United States, 446 U.S. 156 (1980) (city’s plan to change election rules, ward system and residency requirements held to violate Section 5). 4 See, e.g., Perkins v. Matthews, 400 U.S. 379 ( 1971 ) (holding that city s annexations of adjacent areas without federal approval violate Section 5); City of Richmond v. United States, 422 U.S. 358 ( 1975) (conditioning approval of city’s annexation of predominantly white area on shift from at-large to ward voting system); City of Petersburg v. United States, 354 F. Supp. 1021 (D.D.C. 1972), aff'd, 410 U.S. 962, aff d, 412 U.S. 901 (1973) (same); City of Port Arthur v. United States, 459 U.S. 159 ( 1983) (holding that in absence of other electoral reforms, city s annexation of predominantly white area so as to reduce black population from 45.21% to 40.56% impermis sibly discriminated against black residents); City of Rome v. United States, 446 U.S. 156 (1980) (holding that annexation of 13 areas diluted black vote and thus violated Section 5). 5 Under Section 5, municipalities wishing to annex land must obtain either preclearance” from the Justice Department or a declaratory judgment from the District Court for the District of Columbia. See 42 U.S.C. § 1973c. The Attorney General has denied Pleasant Grove preclearance for its proposed annexation in part because of Pleasant Grove’s record of refusing to annex contiguous areas populated by blacks who had petitioned for annexation. J.S. App. 2b. 5 the city’s argument is that its plan is somehow qualitatively different from those municipal annexations invalidated under Section 5 in the past. Its brief emphasizes two distinctions: (1) the fact that Pleasant Grove, because it is 100 percent white, has no black citizens whose voting power could be diluted; and (2 ) the fact that the land it seeks to annex is presently unoccupied. App. Br. 19. As the district court below concluded, however, these are distinctions without a difference. Pleasant Grove’s plan fails both threshold tests for approval under Section 5 of the Voting Rights Act: it is born of a discriminatory purpose, and it promises to have a dis criminatory effect. Unable to meet its burden of proving the absence of both these elements, Pleasant Grove’s plan must fall. A. Pleasant Grove’s Annexation Plan Has the Impermis sible Purpose of Depriving Blacks of Their Political and Voting Rights. Municipal annexations proposed for the purpose of “denying or abridging the right to vote on account of race” are invalid under Section 5 of the Voting Rights Act. 42 U.S.C. § 1973c. This is so even when such annexations promise to have no racially discriminatory impact whatsoever. Port Arthur v. United States, 459 U.S. 159, 168 ( 1982). In this case, as the district court below found, Pleasant Grove’s annexation plan evinces a “ mass of evidence of a specific racially biased annexation policy, supported by what must be, for this day and age, an astonishing hostility to the presence and the rights of black Americans”. J.S. App. 12a. It therefore cannot stand. Pleasant Grove’s brief oddly omits any discussion of Section 5’s purpose requirement, confining its discussion to an attempted refutation of the government’s effect argument. Appellant’s failure to rebut the district court’s finding that it acted with an impermissible discriminatory purpose in and of 6 itself warrants affirmance by this Court.6 7 As Section 5 explicitly states, and as this Court has repeatedly observed, municipalities seeking preclearance for an annexation under Section 5 have the burden of proving both non-discriminatory purpose and non-discriminatory effect. As this Court stated in City o f Richmond v. United States, a case on which appellant’s “effect” argument relies almost exclusively: An official action, whether an annexation or otherwise, taken for the purpose of discriminating against Negroes on account of their race, has no legitimacy at all under our Constitution or under the [voting rights] statute. . . . Sec tion 5 forbids voting changes taken with the purpose of denying the vote on grounds of race or color.” 422 U S 358, 378 ( 1975).7 6 Even if appellant did challenge the district court’s findings, it would have to prove them “clearly erroneous” in order to reverse. As this Court noted in Pullman-Standard v. Swint, district court findings on issues of intent are generally treated as factual matters and can only be overturned if clearly erroneous. 456 U.S. 273, 288 ( 1982) See also Rogers v. Lodge, 458 U.S. 618, 623 ( 1982) (“the same clearly-erroneous standard applies to the trial court’s finding in this case that the at-large system in Burke County is being maintained for discriminatory purposes”); Thornburg v. Gingles, 106 S.Ct. 2752 (1986) (“the clearly-erroneous test. . . is the appropriate standard for appellate review of a finding of vote dilution”). 7 See also City of Rome v. United States, 446 U.S. 156, 172 (1980) ( By describing the elements of discriminatory purpose and effect in the conjunctive Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent”) (emphasis in original); City of Port Arthur, 459 U.S. at 168 (“even if a [proposed] electoral scheme might otherwise be said to reflect the political strength of the minority community, the plan would nevertheless be invalid if adopted for racially- discriminatory purposes” ); City of Lockhart v. United States, 460 U.S. 126, 130 ( 1983) (agreeing with district court that cities “must prove both the absence of discriminatory effect and discriminatory pur poses”); City of Petersburg v. Unitea States, 354 F. Supp. 1021, 1027 ( D.D.C. 1972) (stating that municipalities proposing electoral changes confront heavy burden of proving both no discriminatory purpose and no discriminatory effect). 7 Pleasant Grove’s racial bias has manifested itself in numer ous ways. These include: / . Pleasant Grove's Discriminatoryt Record Towards Annex ation Requests The city’s record of responses to annexation opportunities in the recent past demonstrates a clear preference for white communities. As the district court below noted: “During its history, Pleasant Grove approved the following four annexation requests: a parcel of land to the southwest of the city (1945); land in the northern, southern and western areas ( 1967); the Glasgow Addition (1971) and the Western Addition (1979). None of these areas had any black residents. During the same period, the city rejected annexation petitions from the Woodward School (August, 1971), the Pleasant Grove Highlands (April 18, 1979) and the Dolomite area (October, 1979). Each of these areas has been identified as a ‘black’ area.” J.S. App. 3a-4a (footnotes omitted). Moreover, in the two instances in which the city has chosen not to annex predominantly white areas, it has done so out of fear that “ such annexations might have a ‘mushroom effect’ leading to subsequent annexations of adjacent black areas”. J.S. App. 4a n.4. This, obviously, is not a legitimate fear under Section 5 of the Voting Rights Act—or otherwise.8 8 Rather than attempt to account for its glaringly suspect track record, Pleasant Grove takes refuge in specious evidentiary claims. The city suggests in its brief that, because its refusal to annex the black Highlands occurred after its decision to seek annexation of the Western Addition, the district court erred in even considering the city’s Highland’s decision. App. Br. 21. That is wrong. This Court has made clear that an invidious purpose properly may be inferred from all relevant facts. See infra note 9. Pleasant Grove also seeks to impeach the district court’s use of the contrast with the black Highlands by arguing that “a non-change [the city’s decision not to annex the Highlands] does not have a discriminatory effect.” App. Br. 21. One need look no further than Rogers v. Lodge, 458 U.S. 614 ( 1982), in which this Court held that the mere maintenance of an at-large voting system amounted to a discriminatory purpose, to see the error of the City’s position. 8 2. Pleasant Grove’s Record of Distortions The pretexts and distortions to which Pleasant Grove has resorted in defense of its annexation practices also provide ample evidence of the city’s racially discriminatory intent. The city’s explanations for the refusal to annex the black Highlands is particularly illuminating in this regard. For example: (a ) When asked to explain its rejection of the High lands site, the city asserted that it had relied on the economic determinations of its “Annexation Committee”. In fact, as found by the district court below: (i) the committee’s members were not notified of their appointments until one year later; (ii) the committee met only once—if at all; and (iii) the only information at the committee’s disposal came from city officials hostile to the annexa tion of the black community. J.S. App. 5a-6a. The city s reliance on the report of this committee was rightly found by the district court below to be nothing more than “a sham”. J.S. App. 6a. (b ) Pleasant Grove asserts that annexing the black Highlands would not be financially advantageous, but it performed no economic studies and never “ assess [ed] the economic or other impacts of annexation” prior to deciding not to annex the Highlands or the other three black neighborhoods. J.S. App. 5a. (c) The city’s post hoc economic justifications for its decision to annex the Western Addition, not the black Highlands, like its reliance on the Annexation Committee, are mere sham: (i) The city asserted that annexing the black Highlands would require it to hire extra firefighters and 9 purchase rescue equipment, at considerable cost. In fact, as the district court found, there would be no additional cost—Pleasant Grove already was providing such services to the Highlands. J.S. App. 7a. (ii) Furthermore, the city “applied entirely dif ferent cost methods for the needs of the [black] Highlands than they did for the [uninhabited] West ern Addition”; its budget calculations ignored the considerable tax revenues that the black area would generate for the city; and it employed “highly inflat ed” figures to account for the revenues that the Western Addition would bring in. J.S. App. 7a-10a. (iii) Moreover, as the trial court noted, the city’s estimates of the relative costs of serving the black Highland and the uninhabited Western Additions are highly dubious. The city’s “anticipated cost for serving the 79 homes in the [black] Highlands was more than the estimated cost of serving the 700 projected homes in the [unoccupied] Western High lands addition although the former is more easily accessible than the latter”. J.S. App. 7a. Indeed, appellant concedes that “ the Highlands is in appear ance equal economically to all but the newest subdivi sions in the city”. App. Br. 7. This consistent record of distortion, as found by the court below, “ far overshadows and outweighs the city’s feeble efforts to portray its annexation policy as economically motivated”. J.S. App. 12a. It is more than ample to support the district court’s finding that Pleasant Grove’s purported rationale was “no more than a transparent attempt to put a valid gloss on decisions which plainly had a racial purpose”. J.S. App. 10a. 10 3. Pleasant Grove’s Long History of Racial Discrimination Finally, Pleasant Grove’s unwavering history of city- sanctioned racial discrimination appropriately gives rise to the inference that its decision to annex the Western Addition emanates from racial bias. As this Court noted in Rogers v. Lodge, in which it struck down a Georgia county’s at-large election system, “evidence of historical discrimination is rele vant to drawing an inference of purposeful discrimination”. 458 U.S. 613, 625 ( 1982).9 Racial discrimination has permeated numerous corners of Pleasant Grove life. As the district court found, the city’s housing and zoning policies have long directly and indirectly excluded blacks. J.S. App. I0 a - lla .9 10 Most recently, the city has actively sought to perpetuate its racial homogeneity by “operating a dual white-black housing market through a variety of devices, such as advertising and marketing directed ex clusively to white buyers, and racial steering”. J.S. App. 11a. Moreover, the district court found, Pleasant Grove “has never hired a black person, preferring to draw its employees from as far away as fifty miles rather than to hire blacks living in surrounding Jefferson County, which is one-third black.” J.S. App. 11a. Its educational practices, too, have exuded racial bias. When an Alabama federal court ordered the county to 9 See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-67 ( 1977) (proof of dis criminatory intent requires “a sensitive inquiry into such circum stantial and direct evidence of intent as may be available”; the “historical background of a decision is one evidentiary source, particu larly if it reveals a series of official actions taken for invidious purposes” ); Washington v. Davis, 426 U.S. 229, 242 (1976) (“in vidious discriminatory purpose may often be inferred from the totality of relevant facts” ); Busbee v. Smith, 549 F. Supp. 494, 516-17 (D.D.C. 1982), ajf’d, 459 U.S. 1 166 ( 1983) (imputing discriminatory purpose to county in Section 5 challenge to at-large voting system). 10 See also Wheeler v. City of Pleasant Grove, C.A. No. 78-G- 1150-5 (N.D. Ala. 1979) (holding that Pleasant Grove’s exclusionary zoning ordinance had an impermissibly racially restrictive effect). 11 integrate its school system seventeen years ago,11 Pleasant Grove voted to secede from the county school system that very evening. J.S. App. 1 la. For five more years, until 1972, the city maintained its own separate “white” school system, financed by steep local taxes. That system ended only when the Fifth Circuit abolished it by court order.12 The list of other city actions manifesting racial bias is as lengthy and as recent as it is shocking.13 Pleasant Grove’s racially discriminatory purposes, in short, could not be more clear. The city’s long and still unfolding record of excluding blacks; its long-standing refusal to annex any black areas even as it was welcoming white ones; and the egregious set of distortions to which it has resorted when asked to account for its skewed annexation record—all point to impermissible intentions. A city need not flatly declare its racial animus in order for it to have its plans invalidated under Section 5, see supra note 9, yet in this case, Pleasant Grove has done just that. To uphold Pleasant Grove’s annexation plan would be to read the “purpose” requirement out of Section 5 altogether. That this Court should not do. B. Pleasant Grove’s Annexation Plan Would Have the Impermissible Effects of Depriving Blacks of Voting Rights and of Rewarding the City for its Past Discrimination. Regardless of a municipality’s purposes, annexation plans or other changes of voting practice that have the effect of 11 See Stout v. Jefferson County Board of Education, C.A. No. 65- 396 (N.D. Ala. 1969). 12 See Stout v. Jefferson County Board of Education, No. 72- 1102, aff'd, 466 F.2d 1213 (5th Cir. 1972). 13 The district court, rejecting Pleasant Grove’s motion for sum mary judgment below, took note of the following other Pleasant Grove actions: “It may also be noted that the city council has authorized the formation of a chapter of the White Citizens Council; thanked Governor George Wallace for his fight against integration; and condemned the Birmingham Bar Association for its expression of moral support to District Judge Pointer for his efforts in Stout. ” J.S. App. 5b n.13. 12 “undervaluing] the black strength in the community after annexation” are invalid. City o f Richmond, 422 U.S. at 372. In this case, approval of Pleasant Grove’s plans to annex the Western Addition would not only operate to disenfranchise blacks. It would also have the perverse and wholly unjustified effect of rewarding Pleasant Grove for its “ astonishing” record of past discrimination. See supra at 5; see also J.S. App. 10a- 12a. Accordingly, this Court should reject Pleasant Grove’s annexation proposal as an extreme violation of the “effect” prong of Section 5. 1. The Fact that the Western Addition Is Presently Unin habited in No Way Minimizes the Deleterious Impact the Annexation Would Have Upon Blacks. Appellant’s argument proceeds from the assumption that because the 439 acres comprising the Western Addition are at present uninhabited, the annexation would have no impact on black voting strength. That assumption is wrong. As the district court below specifically found, “while the Western Addition is undeveloped, its location and the city’s plans indicate that it is likely to be developed for use by white persons only”. J. S. App. 4a n.5 (emphasis added).14 15 Pleasant Grove’s action thus implicates one of this Court’s two primary fears about municipal boundary revisions. That fear is that, by including certain voters within the city and leaving others outside, [the city] determines who may vote in the municipal election and who may not”. Perkins v. Matthews, 400 U.S. 379, 388 (1971).15 14 Moreover, the city asserted below that it expects to receive annual tax revenues from Western Addition homes that will outstrip those of the city’s most expensive homes. J.S. App. 9a. That projection strongly indicates that Pleasant Grove contemplates that the Western Addition will emerge as an expensive—and thus likely white—suburb. 15 The other, separate concern about municipal annexations, according to Perkins, is that they can “dilute the weight of the votes of the voters to whom the franchise was limited before the annexation”. 400 U.S. at 388. Appellant, again reading this Court’s Section 5 jurisprudence through very selective lenses, wholly ignores the Court’s “fencing-out” concern and instead emphasizes only its concerns about 13 Appellant’s broader suggestion—that the strictures of the Voting Rights Act cannot apply to annexations of unpopulated land—represents a misreading of Congress’s purposes in enact ing Section 5. It is obvious to anyone that the addition of an unpopulated tract of land to a community may not affect voting power at the instant moment. Yet, as Congress knew when it passed Section 5, time does not stand still. As this Court emphasized in Perkins, “ § 5 was designed to cover changes having the potential for racial discrimination”. 400 U.S. at 389 (emphasis added). Appellant’s time-bound analysis—like Judge MacKinnon’s dissenting observation that other means of redress exist to deter future city misconduct, see J.S. App. 22a—is thus unduly narrow. Section 5 is a rule aimed not only at present violations but also at threats of future ones. See Dougherty County Board o f Education v. White, 439 U.S. 32, 42 ( 1978) (focus of Section 5 includes “potential for dis crimination” ) .16 The likelihood found by the trial court that the Western Addition will become an all-white enclave upon being incorporated into Pleasant Grove makes this annexation bid a particularly appropriate one for Section 5 invalidation.17 Pleasant Grove seeks to suggest that because its annexation plan involves an uninhabited area, it is qualitatively different minority-vote dilution. See also Gomillion v. Lightfoot, 364 U.S. 339 (1960) (municipal boundary redefinition that operates to exclude blacks held to violate Fifteenth Amendment). 16 See also Motomura, Preclearance Under Section Five of the Voting Rights Act, 61 N.C.L. Rev. 189, 221 n.195 (noting that Justice Department often rejects preclearance requests in annexation cases in light of anticipated development of areas). 17 Pleasant Grove cynically suggests that its Western Addition annexation plan would actually serve the interests of the Highlands’ black residents better than the Highlands annexation proposal en dorsed by a petition of those residents. The city states, “Instead of voting as a part of a significant minority in Jefferson County (where two out of eight state senators in the county delegation were black in 1979), the blacks residing in the Highlands [if annexed to Pleasant Grove] would vote as an insignificant minority where all coun- cilmanic seats are elected at large”. App. Br. 23. The import of this argument is that Pleasant Grove knows better than the Highlands’ residents what is best for them. Such reasoning could result in precisely the sort of separatism and segregation that the framers of the Voting Rights Act sought to curb. 14 from the Section 5 annexation cases which this Court has previously considered. App. Br. 19. In fact, its scheme is only a new incarnation of an old yet apparently resilient theme in voting rights history: the attempt by some localities to exploit loopholes in the civil rights laws. As this Court noted in Beer v. United States, a legislative reapportionment case that along with City o f Richmond provides the purported foundation of appellant’s claims: “Section 5 was a response to a common practice in some jurisdictions of staying one step ahead of federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.” 425 U.S. 130, 140 (1976) (quoting H.R. Rep. No. 94-196 at 57-58). This Court must not allow Pleasant Grove to skirt its legal obligations by finding purported loopholes in Section 5 jurisprudence. As this Court asserted long ago, the Fifteenth Amendment, under whose aegis the Voting Rights Act was passed, “ nullifies sophisticated as well as simple-minded modes of discrimination”. Lane v. Wilson, 307 U.S. 268, 275 ( 1939). Pleasant Grove’s plan cannot survive Section 5 scrutiny.18 18 Appellant’s “defense” amounts to a repeated invocation of Beer’s “no retrogression” principle and of City of Richmond’s prohibi tion upon “significant proportionate reductions” of minority voting power. See App. Br. 12, 17. Such reliance is disingenuous. The verbal formulations of Beer and City of Richmond were fashioned in cases where municipal actions whittled down black voting power; thus, judicial tests focusing on “before” and “after’ comparisons of proportions were wholly appropriate. Those courts did not have before them—and thus did not try to resolve—a case in which there were no black residents. In this case, by contrast, the proportion of Pleasant Grove votes wielded by blacks is already as low as it can ever be: it is 0%. To appellant, this fact means that there is nothing Pleasant Grove can possibly do that would violate Section 5, for “retrogression” is literally impossible when one starts at ground zero. That is hardly what this Court intended when it used the term “retrogression”. 15 2. A Decision to Authorize Pleasant Grove’s Annexation Plan Would Have the Impermissible Effect of Rewarding the City for Its Past Discrimination. Pleasant Grove’s “effect” argument hinges on its assertion that “ because there were no black voters in Pleasant Grove . . . these annexations neither reduced the proportion of black voters in Pleasant Grove nor denied black voters repre sentation equivalent to their political strength in the enlarged community”. App. Br. 19. For the city to use its racial homogeneity as a rationale for escaping review under the Voting Rights Act is cynical in the extreme. Pleasant Grove’s policies of racial discrimination and exclusion in virtually every walk of life are undeniably largely responsible for the city’s failure to attract black residents. Allowing the city to bootstrap its legacy of discrimination into a successful end-run around the Voting Rights Act would send the perverse signal that dis crimination can be its own reward. This Court must not send that message.19 19 As the district court below aptly observed, “it would be incongruous if the city of Pleasant Grove, having succeeded in keeping all blacks out, could now successfully defend on the ground that there are no blacks in the city whose right to vote would be diluted by the annexation of white but not black subdivisions”. J.S. App. 8b-9b. Indeed, by appellant’s logic, those cities that had no blacks at the time the Voting Rights Act was passed effectively received “grand father clause” exemptions protecting them from the Act’s strictures. Nothing in the history of the Act supports that interpretation in the slightest. 16 CONCLUSION Section 5 of the Voting Rights Act was designed to prevent electoral changes having either the purpose or the effect of depriving blacks of their right to vote. Pleasant Grove s plan to annex the “Western Addition” is such an impermissible change, for it both bears a discriminatory purpose and threatens to have a discriminatory effect. The Democratic National Committee respectfully urges that the Court affirm the judgment of the district court below. Respectfully submitted, David Boies (Counsel of Record) Stephen D. Poss Cravath, Swaine & Moore One Chase Manhattan Plaza, New York, N.Y. 10005 (212) 422-3000 Attorneys for the Democratic National Committee as Amicus Curiae Joaquin Avila One Warm Springs Professional Center, 200 Brown Road (Suite 114), Fremont, Calif. 94539 Armand Derfner McClain & Derfner P.O. Box 608, Charleston, S.C. 29402 Of Counsel. August 2, 1986