Pleasant Grove v. United States Motion for Leave to File and Brief Amicus Curiae

    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