Rogers v Lodge Motion for Leave to File Brief Amicus Curiae

    No. 80-2100

In  T he

§>u$rmt (IJmtrt of tfrr lUnlM BttxtiB
October T er m , 1981

Qu e n tin  Rogers, et al.,
v Appellants,

H e r m a n  L odge, et al.

On Appeal from the United States Court of Appeals 
for the Fifth Circuit

MOTION FOR LEAVE TO FILE AND 
BRIEF AMICUS CURIAE OF THE 

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW IN SUPPORT OF APPELLEES

Richard C. Dinkelspiel 
Maximilian  W . Kempner 

Co-Chairmen 
W illiam L. Robinson 
Frank R. Parker *
Barbara Y. Phillips 
Robert Bruce McDuff 

Lawyers’ Committee for Civil 
Rights Under Law  

733 15th St, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amicus Curiae

* Counsel of Record

W il s o n  - Ep e s  Pr in t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n . D .C .  2 0 0 0 1



In  T he

i>upratt£ (Emtrt vt %  Unttpfo i ’tatris
October T er m , 1981

No. 80-2100

Qu e n tin  Rogers, et al.,
Appellants,

H er m a n  Lodge, et al.

On Appeal from the United States Court of Appeals 
for the Fifth Circuit

MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
seeks leave to file the annexed brief as amicus curiae. 
The appellees have consented to the filing of this brief, 
but appellants have not.

The Lawyers’ Committee was organized in 1963 at the 
request of the President of the United States to involve 
private attorneys throughout the country in the national 
effort to assure civil rights to all Americans. Protec­
tion of the voting rights of citizens has been an impor­
tant aspect of the work of the Committee; it has pro­



vided legal representation to litigants in numerous vot­
ing rights cases for the past fifteen years.*

This case presents important issues of proof and legal 
standards applicable to challenges to at-large elections 
for dilution of black voting strength. The case has im­
portance beyond its immediate facts because the ruling 
of the Court will affect pending and future litigation 
in this area. The Lawyers’ Committee represents black 
voter plaintiffs and is otherwise involved in four pending 
cases challenging at-large election schemes,** and the 
Court’s ruling in this case is likely to have a direct 
impact on the outcome of those pending cases.

In our view, the judgment of the Court of Appeals 
should be affirmed, but we wish to present arguments 
different from those expressed by the Court of Appeals 
or likely to be forwarded by the parties. We take the 
position that the District Court’s conclusion that at-large 
county commission elections are being maintained for an 
invidious purpose is amply supported by subsidiary find-

* For example, the Lawyers’ Committee represented a class of 
black citizens of Mississippi in reapportionment litigation which 
was before this Court on several occasions: Connor v. Johnson, 
402 U.S. 690 (1971); Connor v. Williams, 404 U.S. 549 (1972); 
Connor v. Waller, 421 U.S. 656 (1975); Connor v. Coleman, 425
U. S. 675 (1976) ; Connor v. Finch, 431 U.S. 407 (1977); Connor
V. Coleman, 440 U.S. 612 (1979) ; id., 441 U.S. 792 (1979) ; United 
States v. Mississippi, 444 U.S. 1050 (1980). The Lawyers’ Com­
mittee also has been granted leave of this Court to file briefs 
amicus curiae in a number of important voting rights cases decided 
by this Court, including McDaniel V. Sanchez, 68 L. Ed.2d 724 
(1981); City of Mobile V. Bolden, 446 U.S. 55 (1980); Wise V. 
Lipscomb, 437 U.S. 535 (1978); and East Carroll Parish School 
Bd. v. Marshall, 424 U.S. 636 (1976).

** Kirksey v. City of Jackson, 506 F. Supp. 491 (S.D. Miss.
1981), aff’d, ------  F.2d ------  (5th Cir., December 11, 1981);
Boykins v. City of Hattiesburg, Civil No. H77-0065(C) (S.D. 
Miss., filed May 27, 1977) ; Greenville Citizens for More Representa­
tive Government v. City of Greenville, Civil No. GC-77-99-S (N.D. 
Miss., filed August 30, 1977) ; and Jordan V. City of Greenwood, 
Civil No. GC-77-52-K (N.D. Miss., filed May 6, 1977).



mgs of fact and evidence which prior decisions of this 
Court have held are sufficient to support a conclusion of 
discriminatory purpose. We also argue that at-large 
elections in Burke County are unconstitutional because 
they perpetuate the present effect of a past purposeful 
and intentional denial to blacks of equal access to the 
political process, and that proof of the unresponsiveness 
of the white elected officials to black interests should not 
be a controlling element of proof of the unconstitutional­
ity of the at-large election system under which the of­
ficials were elected.

Accordingly, the Lawyers’ Committee seeks leave to 
file this brief to present questions of law and legal argu­
ment that are not likely to be presented by the parties 
and which, if accepted, would directly control this Court’s 
disposition of this case.

WHEREFORE, the Lawyers’ Committee for Civil 
Rights Under Law respectfully moves the Court for 
leave to file the attached brief amicus curiae.

Respectfully submitted,

Richard C. Dinkelspiel 
Maximilian  W . Kempner 

Co-Chairmen
W illiam L. Robinson 
Frank R. Parker *
Barbara Y. Phillips 
Robert Bruce McDuff 

Lawyers’ Committee for Civil 
Rights Under Law  

733 15th St., N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Amicus Curiae

* Counsel of Record



INTEREST OF AMICUS CURIAE ............

SUMMARY OF ARGUMENT_____ _____

ARGUMENT ................

I. THE DISTRICT COURT’S CONCLUSION
THAT AT-LARGE ELECTIONS HAVE BEEN 
MAINTAINED IN BURKE COUNTY FOR 
THE DISCRIMINATORY PURPOSE OF 
DENYING BLACKS EQUAL ACCESS TO 
THE POLITICAL PROCESS IS CORRECT 
AND SHOULD BE SUSTAINED ....................

II. t h e  c o n s t it u t io n  p r o h ib it s  a t -
l a r g e  ELECTIONS WHICH HAVE THE 
EFFECT OF PERPETUATING OFFICIAL 
AND INTENTIONAL DENIAL TO BLACKS 
OF EQUAL ACCESS TO THE POLITICAL 
PROCESS ................ ................................... ........

III. THE OPINION OF THE COURT OF AP­
PEALS IS INCORRECT INSOFAR AS IT 
REQUIRES A SHOWING OF UNRESPON­
SIVENESS TO SUSTAIN A CHALLENGE TO 
AT-LARGE ELECTIONS ............

TABLE OF AUTHORITIES .....................................

CONCLUSION



11

TABLE OF AUTHORITIES
Cases Page

Allen v. State Board of Elections, 393 U.S. 544
(1969) ..................................... .............. ..................... 4, 5, 10

Avery V. Midland County, 390 U.S. 474 (1968) .... 5
Brown v. Board of Education, 347 U.S. 483

(1954) .............................       29
Chapman v. King, 154 F.2d 460 (5th Cir.), cert.

denied, 327 U.S. 800 (1946) ........................ .........  21
City of Mobile v. Bolden 446 U.S. 55 (1980) ....1, 2, 3, 4, 5, 

6, 8, 9, 10,11,12, 14,15, 16, 26, 28, 29 
City of Rome, Georgia V. United States, 446 U.S.

156 (1980) ....................        is
Columbus Board of Education v. Penick, 443 U.S.

449 (1979) ..........    7 ,8 ,19
Connor V. Finch, 431 U.S. 407 (1977) ..................... 4,10
Connor V. Johnson, 402 U.S. 690 (1971) _________ 4
Dayton Board of Education V. Brinkman, 443 U.S.

526 (1979) ................................................. .............. 7, 18, 19
East Carroll Parish School Board v. Marshall, 424

U.S. 636 (1976) ................... .......... ................. . 4
Flax v. Potts, 404 F.2d 865 (5th Cir.), cert, de­

nied, 409 U.S. 1002 (1972) .............................. 19
Gaston County v. United States, 395 U.S. 285

(1969) ................        23
Green v. County School Board of New Kent County,

391 U.S. 430 (1968)................. .............. ................. 17
Keyes V. School District No. 1, 413 U.S. 189

(1973) ............ ............... ................. ........ ............ . is
Kirksey V. Board of Supervisors of Hinds County, 

Mississippi, 554 F.2d 139 (5th Cir.) (en banc),
cert, denied, 434 U.S. 968 (1977) ...............15, 16, 23, 24

Lodge V. Buxton, 639 F.2d 1358 (5th Cir. 1981) ... 3,19,
24, 28

Louisiana v. United States, 380 U.S. 145 (1965).... 16, 17 
McGill v. Gadsden County Commission, 535 F.2d

277 (5th Cir. 1976) ................................................ 21
McMillan v. Escambia County, Florida, 639 F.2d 

1239 (5th Cir. 1981) 21, 29



1U

Page

Personnel Administrator of Massachusetts V.
Feeney, 442 U.S. 265 (1979) ....... ............ -.........  4,20

Reitman v. Mulkey, 387 U.S. 369 (1967)........ —  15
Smith V. Allwright, 321 U.S. 649 (1944) .......... . 25
Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss.

1975) (three-judge court) — ....................... -  14
Swann V. Charlotte-MecJclenburg Board of Educa­

tion, 402 U.S. 1 (1971) ...... ...................................  18,19
Village of Arlington Heights V. Metropolitan De­

velopment Corporation, 429 U.S. 252 (1977)...5 ,7 ,9 ,
14, 15, 20, 29

Washington V. Davis, 426 U.S. 229 (1976) ....... 1, 3, 5, 6,
15,16, 20

Whitcomb v. Chavis, 403 U.S. 124 (1971) ............ 2
White V. Regester, 412 U.S. 755 (1973) ....... 1, 2, 3, 4, 5,

15,16, 17,19, 25
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.

1973) ..... ................ ........... -.............................. .....15,16, 28

Statutes
42 U.S.C. § 1973 ....
Ga. Code § 2-403 ...
Ga. Code § 34-1015 
Ga. Code §34-1513

TABLE OF AUTHORITIES— Continued

Other
Campbell, A., et. al., The A merican V oter

(1960) ...... ......... ............... -.......- ...................-----...... 24
Campbell, A., et. ah, The V oter Decides (1954).. 24
Davidson, C. and Korbel, G., At-Large Elections 

and Minority Group Representation: A Re-
Examination of Historical and Contemporary 
Evidence, 43 J. OF POL. 982 (Nov. 1981) ............ 6

Engstrom, R. and McDonald, M., The Election of 
Blacks to City Councils: Clarifying the Impact 
of Electoral Arrangements on the Seats/Popu­
lation Relationship, 75 A m . Political Sci. Rev. 
344 (June 1981) .... — ..............................-.............

8, 9, 22, 23 
23

....7, 14, 27

....7, 14, 27

6



IV

Page

Erbe, W ., Social Involvement and Political Ac­
tivity: A Replication and Elaboration, 29 A m .
Soc. Rev. 198 (1964) ............................................. . 24

Hays, S., The Politics of Reform in Municipal 
Government in the Progressive Era, 55 Pac.
N orthwest Q. 157 (1964) ..................... .............. . 12

Jones, C., The Impact of Local Election Systems 
on Black Political Representation, 11 Urb. A ff.
Q. 345 (March 1976) ..................... ............... ........... 6

Kousser, J., The Shaping of Southern Politics
(1 9 7 4 )_______________ __________ ____ __________ _ 21

Kamig, A., Black Representation on City Councils,
12 Urb. A ff. Q. 223 (Dec. 1976) .........................  6

Milbraight, L., Political Participation (1965).. 24
Note, The Supreme Court, 1979 Term, 94 Harv.

L. Rev. 75 (1980) ...... ............ .................................. 3
Rice, B., Progressive Cities: The Commission 

Government Movement in  A merica, 1901-
1920 (1977) .......... ....... ............ ..................................... 12, 13

Robinson, T. and Dye, T., Reformism and Black 
Representation on City Councils, 59 Soc. SCI. Q.
133 (June 1978) .........................................................  6

Silver, J., M ississippi: The Closed Society
(1964) ...................... ...................... ...... ........................ . 21

Taebel, D., Minority Representation on City Coun­
cils, 59 SOC. Sci. Q. 143 (June 1978) ........ ........... 6

United States Bureau of the Census, Governing
Boards of County Government: 1973 (1974).... 12

United States Commission on Civil Rights, The 
V oting Rights A c t : Ten  Y ears A fter (1975).. 10

Weinstein, J., The Corporate Ideal in  the Lib­
eral State, 1900-1918 (1968) ...............................  12

Weinstein, J., Organized Business and the City 
Commissioner and Management Movements, 28 
J.S. H ist. 166 (1962) ............................ ................. . 12

TABLE OF AUTHORITIES—Continued



In  T h e

ilitjtmttp (SJrnul nf %  llmtTi* States
October Term , 1981

80-2100

Qu e n tin  Rogers, et al,
v Appellants,

H e r m a n  L odge, et al.

On Appeal from the United States Court of Appeals 
for the Fifth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS AS AMICUS CURIAE 

IN SUPPORT OF APPELLEES

INTEREST OF AMICUS CURIAE
The interest of the Lawyers’ Committee for Civil 

Rights Under Law in this matter is set out in the Motion 
for Leave to File this brief which is appended hereto.

SUMMARY OF ARGUMENT

1. The evidence in the record amply supports the find­
ing of the District Court that at-large elections for the 
County Commission of Burke County, Georgia have been 
maintained with the intent of continuing the historical 
exclusion of black citizens in Burke County from the 
political processes. This is clear because the evidence 
and findings are comparable to the indications of dis­
criminatory intent found in White v. Regester, 412 U.S. 
755 (1973), which was reaffirmed by City of Mobile v. 
Bolden, 446 U.S. 55 (1980). Moreover, the evidence and 
findings conform to a number of factors which this 
Court, in a line of cases since Washington v. Davis, 426 
U.S. 229 (1976), has said provide strong indicia of dis­
criminatory intent.



2

2. Even if  the evidence does not show discriminatory 
intent in the direct adoption or maintenance of this at- 
large election plan, the plan is nevertheless unconstitu­
tional because it perpetuates the present effect of a prior 
intentional and unconstitutional exclusion of black citi­
zens from the political process. This standard comports 
with the Court’s previous decisions in vote dilution and 
school desegregation cases, and also focuses on the issue 
of discriminatory intent as required by the Court’s hold­
ings in equal protection cases. As found by the District 
Court, prior intentional and unconstitutional discrimina­
tion has excluded the black citizens of Burke County, 
Georgia from the political process, and the at-large plan 
for electing county commissioners in Burke County per­
petuates that exclusion.

3. The Court of Appeals incorrectly held that proof 
of unresponsiveness is necessary to the successful main­
tenance of a constitutional challenge based on grounds of 
racial vote dilution. This conclusion, unnecessary to the 
resolution of the instant case, is based on a misreading 
of the plurality opinion in Mobile, and is inconsistent 
with previous holdings of this Court.

ARGUMENT

I. THE DISTRICT COURT’S CONCLUSION THAT 
AT-LARGE ELECTIONS HAVE BEEN MAIN­
TAINED IN BURKE COUNTY FOR THE DIS­
CRIMINATORY PURPOSE OF DENYING BLACKS 
EQUAL ACCESS TO THE POLITICAL PROCESS IS 
CORRECT AND SHOULD BE SUSTAINED.

At-large voting is not unconstitutional per se, but is 
unconstitutional if  it has been conceived, operated, or 
retained “ invidiously to minimize or cancel out the vot­
ing potential of racial or ethnic minorities.”  City of 
Mobile v. Bolden, 446 U.S. 55, 66 (1980) (plurality 
opinion) ; see also, White v. Regester, 412 U.S. 755, 765 
(1973) ; Whitcomb v. Chavis, 403 U.S. 124, 149 (1971). 
The Mobile plurality concluded that plaintiffs’ burden is 
to prove “ that the disputed plan was ‘conceived or oper­



3

ated as tail purposeful devic[e] to further racial . . . 
discrimination.’ ” 446 U.S. at 66. However, the opinion 
of the plurality has been criticized as failing to provide 
adequate guidance to the lower courts in determining 
discriminatory purpose in vote dilution cases, and in 
particular “because it refused to draw inferences that 
are reasonable in light of the Court’s intent decisions 
since Washington v. Davis, [426 U.S. 229 (1976)].” 
Note, The Supreme Court, 1979 Term, 94 Harv. L. Rev. 
75, 147 (1980). This case gives this Court an oppor­
tunity to clarify Mobile and provide additional guidance.

We respectfully submit that the trial court’s finding 
of intentional discrimination in the maintenance of 
Burke County’s at-large election scheme was properly 
affirmed below on two separate grounds: first, because 
the proof that blacks were excluded from the political 
process in Burke County met the requirements of White 
v. Regester; and second, because the evidence more than 
amply established intent under more recent decisions of 
this Court. Our discussion of the evidence in the in­
stant case will focus on the indicia of intent identified in 
those more recent decisions.

As the Court of Appeals in this case1 correctly points 
out,

In a voting dilution case in which the challenged 
system was created at a time when discrimination 
may or may not have been its purpose, it is unlikely 
that plaintiffs could ever uncover direct proof that 
such system was being maintained for the purpose of 
discrimination.

Lodge v. Buxton, 639 F.2d 1358, 1363 (5th Cir. 1981) 
(footnotes omitted). “ Quite simply, there will be no 
‘smoking gun.’ ” Id. at 1363 n. 8. This Court has made 
it clear from Washington v. Davis that: “ Necessarily, 
an invidious discriminatory purpose may often be in­
ferred from the totality of the relevant facts . ”  426
U.S. at 242.



4

Indeed, this Court has never required proof of overt 
racial statements or a subjective state of mind of racial 
intent. “ Proof of discriminatory intent must necessarily 
rely on objective factors,” Personnel Adm’r of Mass. v. 
Feeney, 442 U.S. 265, 279 n. 24 (1979), and requires 
“ a sensitive inquiry into such circumstantial and direct 
evidence of intent as may be available.” Village of 
Arlington Heights v. Metropolitan Homing Dev. Corp., 
429 U.S. 252, 266 (1977). Furthermore, to prevail, 
plaintiffs need not prove that a racial purpose was the 
sole, dominant, or even the primary purpose for a chal­
lenged action, but only that it “has been a motivating 
factor in the decision.” Arlington Heights, supra, 429 
U.S. at 265-266. “ Discriminatory intent is simply not 
amenable to calibration. It either is a factor that has 
influenced the legislative choice or it is not.”  Personnel 
Adm’r of Massachmetts V. Feeney, supra, 442 U.S. at 
277 (1979).

While the evidence in the instant case certainly proves 
a constitutional violation in light of a White v. Regester 
analysis,1 which was reaffirmed by the Mobile plurality

1 The Mobile plurality’s suggestion that a constitutional distinc­
tion may exist between multi-member legislative districts and local 
at-large governments, 446 U.S. at 70, is untenable and, at the: very 
least, inapplicable to this case. There is nothing in White V. 
Regester or this Court’s other cases to indicate that the White V. 
Regester analysis hinged on the presence of legislative districts as 
opposed to other units of government. The potential harm in­
volved— the submersion of electoral minorities^—is present both in 
multi-member legislative districts and local at-large election plans, 
see Connor V. Finch, 431 U.S. 407, 415 (1977), and Allen V. State 
Board of Elections, 393 U.S. 544, 569 (1969), and this Court has 
therefore expressed its strong preference for single-member dis­
tricts in court-ordered reapportionment plans in both the legislative 
and local government contexts. See Connor V. Johnson, 402 U.S. 
690 (1971), and East Carroll Parish School Bd. V. Marshall, 424 
U.S. 636 (1976). Furthermore, there is no distinction expressed 
in this Court’s malapportionment cases, which, like racial dilution 
cases, involve claims of diminished voting power. Allen, supra, 
393 U.S. at 569. The malapportionment doctrine applies in like



5
(446 U.S. at 69-70),2 it also supports a finding of dis­
criminatory intent reached by considering factors identi­
fied in decisions of this Court since Washington v. Davis. 
It is those factors upon which this discussion will focus, 
rather than a White v. Regester factual analysis. As de­
tailed below, the District Court’s conclusion, affirmed by the 
Fifth Circuit, that “ the present scheme of electing county 
commissioners . . .  is being maintained for invidious 
purposes” (J.S., App. 71a) is amply supported by sub­
sidiary findings of fact and evidence giving rise to infer­
ences which this Court has held in prior cases are suffi­
cient to support a conclusion of discriminatory purpose.

1. Discriminatory impact. In determining whether or 
not at-large voting is being retained for a discriminatory 
purpose, “ [t]he impact of the official action— whether it

fashion to local governments and state legislatures. Avery v. 
Midland County, 390 U.S. 474, 485 (1968).

The Mobile plurality’s intimation of a constitutional distinction 
was accompanied by two observations apparently thought to give 
support to that distinction: (1) that the Mobile City Commission 
exercised not only legislative policymaking power, but also executive 
and administrative power, therefore requiring that each city voter 
cast an at-large ballot for each of the city commissioners, all of 
whom would exercise citywide administrative and executive func­
tions; and (2) that at-large municipal elections were once “ uni­
versally” heralded as good-government reforms. 446 U.S. at 70 and 
n. 15. The two observations are irrelevant to the present case— 
the first because the Eurke County Commission exercises only 
legislative policymaking power, and not executive or administrative 
functions, and the second because it pertains to the history of 
municipal governments and not county governments. Additionally, 
as demonstrated later in this brief, the accuracy of the plurality’s 
historical conclusion is highly questionable in light of recent his­
torical research. And even if good-government reform played some 
part in the institution of the commission form of government in 
some American cities, that is no basis for making constitutional 
distinctions which affect the standards governing voting rights 
cases in all local governments, city and county.

2 Justice Stevens appears also to have reaffirmed White v. 
Regester. 446 U.S. at 84, n. 2, as did Justice Blackmun and the 
Mobile dissenters.



6

‘bears more heavily on one race than another/ Washing­
ton v. Davis [426 U.S.] at 242— may provide an impor­
tant starting point.”  Mobile, supra, 446 U.S. at 70. As 
Justice Stevens aptly noted in Washington v. Davis,

Frequently the most probative evidence of intent will 
be objective evidence of what actually happened 
rather than evidence describing the subjective state 
of mind of the actor. For normally the actor is pre­
sumed to have intended the natural consequences of 
his deeds.

426 U.S. at 253 (concurring opinion).
Here the District Court found that no black candidate 

has ever been elected to the County Commission, despite 
the fact that Burke County has historically been major­
ity black in population (J.S., App. 66a). The District 
Court also found that when blacks ran for the County 
Commission, they carried majority black districts, but 
lost in countywide voting [id,, App. 72a-73a), and that 
when at-large elections were abolished in Waynesboro, 
the county seat, and single-member districts were im­
plemented, there was an increase in black representation 
on the city council (id., App. 73a) .3

The District Court also found that the discriminatory 
impact of countrywide voting was enhanced by the large

3 Among social scientists, there is little question that at-large 
voting is racially discriminatory. Numerous empirical studies 
based on data collected from throughout the nation have found a 
direct causal relationship between at-large elections and exclusion 
of minority representation. See, e.g., C. Davidson and G. Korbel, 
At-Large Elections and Minority-Group Representation: A Re- 
Examination of Historical and Contemporary Evidence, 43 J. of 
Pol. 982-1005 (Nov. 1981); R. Engstrom and M. McDonald, The 
Election of Blacks to City Councils: Clarifying the Impact of Elec­
toral Arrangements on the Seats /Population Relationship, 75 A m . 
Pol. Sci. Rev. 344-354 (June 1981) ; D. Taebel, Minority Repre­
sentation on City Councils, 59 Soc. SCI. Q. 143-52 (June 1978) ; 
T. Robinson and T. Dye, Reformism and Black Representation on 
City Councils, 59 Soc. Sci. Q. 133-41 (June 1978); A. Karnig, Black 
Representation on City Councils, 12 Urb. Aff. Q. 233-43 (Dec. 
1976); C. Jones, The Impact of Local Election Systems on Black 
Political Representation, 11 Urb. Aff. Q. 345-56 (March 1976).



7
geographic size of the county which “has made it more 
difficult for blacks to get to polling places or to cam­
paign for office”  {id,., App. 91a), by the Georgia statu­
tory majority vote requirement (Ga. Code Ann. § 34- 
1513) which “ tends to submerge the will of the minority 
and to deny the minority’s access to the system” {id., 
App. 92a), by the numbered post requirement (Ga. Code 
Ann. § 34-1015) which “ enhance[s] plaintiffs’ lack of 
access to the system” {id.), and by the lack of any dis­
trict residency requirement, so that “ [a] 11 candidates 
could reside in Waynesboro, or in ‘lilly-white’ neighbor­
hoods”  {id., App. 93a).

The record in this case shows not only that the county­
wide voting scheme has a racially disproportionate im­
pact, but also that local white officials responsible for 
maintaining at-large voting concede and are fully aware 
that no black can get elected to the County Commission 
under this at-large system. (Tr., p. 168). This Court 
has recognized that “ actions having foreseeable and anti­
cipated disparate impact are relevant evidence to prove 
the ultimate fact, forbidden purpose.” Columbus Bd. of 
Educ. v. Penick, 433 U.S. 449, 464 (1979) ; see also, 
Dayton Bd. of Educ. v. Brinkman {Dayton II), 443 U.S. 
526, 536 n. 9 (1979) (“proof of foreseeable consequences 
is one type of quite relevant evidence of racially dis­
criminatory purpose” ). Since the responsible officials 
were aware and could reasonably foresee that the main­
tenance of this at-large election system would continue 
the historic exclusion of black representation from 
county government, it was appropriate for the District 
Court to infer that this discriminatory impact was 
intended.

2. Pattern and practice of racial discrimination. In 
proving discriminatory purpose, this Court has held: 
“ The historical background of the decision is one evi­
dentiary source, particulary if it reveals a series of 
official actions taken for invidious purposes.” Arlington 
Heights, supra, 429 U.S. at 267. The findings of the Dis­
trict Court indicate that black citizens in Burke County



8
have been discriminated against and segregated in every 
aspect of public life, including political and electoral af­
fairs, and that this racial discrimination and segrega­
tion is continuing down to the present time. Prior to 
the passage of the Voting Rights Act of 1965, blacks in 
Burke County were denied the right to register and vote 
by literacy tests, poll taxes, and white primaries, all 
maintained by county officials under color of state law 
(J.S., App. 71a-72a, 86a). Since the enactment of the 
Voting Rights Act, the County Commission has con­
tinued to deny the county’s black citizens polling places 
and the opportunity to register and vote (J.S., App. 81a).

In addition, the District Court found that the County 
Commission continues to discriminate against black citi­
zens in appointments to boards and commissions which 
oversee the execution of county government (J.S. App. 76a, 
78a), in judicial appointments {id., App. 78a-79a), by 
maintaining a discriminatory hiring policy for county 
employment {id., App. 75a,-76a, 79a), in paving of 
county roads {id., App. 79a-80a), and by participating in 
the establishment of the Edmund Burke Academy, a 
segregated, all-white private school established to cir­
cumvent public school desegregation {id., App. 81a-82a). 
The county’s practice of racial discrimination in grand 
jury selection continued until 1977, when it was termi­
nated under compulsion of court order {id., App. 75a).

In short, whenever officials in Burke County came to 
a “ crossroads where [they] could either turn toward 
[burdening minorities] or away from it,”  Columbus Bd. 
of Educ. V. Penick, supra, 443 U.S. at 463, n. 12, they 
consistently chose the alternative with the greatest dis­
criminatory impact. Such evidence is highly probative 
of discriminatory intent. Id.

Indeed, this proof goes beyond the mere fact of unre­
sponsiveness of the elected county officials to black needs 
and interests, which the Mobile plurality said “ is rele­
vant only as the most tenuous and circumstantial evi­
dence of the constitutional invalidity of the electoral sys-



tern under which they attained their offices”  (446 U.S. at 
74), and the “ original sin” (id.) of past discrimina­
tion. The findings of the District Court clearly demon­
strate an official county policy of excluding black citi­
zens from full participation in county government, a 
policy which is furthered and enhanced by the county’s 
discriminatory at-large voting system, and of which at- 
large voting is an integral part. Moreover, in contrast 
to Mobile, the record here shows that blacks in Burke 
County do not always register and vote “ without hind­
rance.”  See Mobile, supra, 446 U.S. at 73. Thus, this 
evidence of historic and present invidious discrimination 
against the black community gives rise to an inference, 
which was drawn by the District Court and affirmed by 
the Court of Appeals, that the county’s at-large election 
scheme which excludes any opportunity for black repre­
sentation is being maintained specifically for an invidious 
racial purpose.

3. Lack of an adequate, nonracial reason. The absence 
of a legitimate nonracial reason for a challenged action 
is probative of discriminatory intent, “particularly if 
the factors usually considered important by the decision- 
makers strongly favor a decision contrary to the one 
reached.”  Arlington Heights, supra, 429 U.S. at 267 
(footnote omitted). In at-large election challenges, this 
inquiry involves an analysis of the context in which at- 
large voting is maintained. See, e.g., Mobile, supra, 446 
U.S. at 60-61 (plurality opinion).

Following the passage of the Voting Rights Act, giv­
ing blacks in Georgia the right to vote for the first time 
since Reconstruction, 18 Georgia counties switched from 
district elections to at-large elections. (T. 398-99). This 
pattern also was evident in other states covered by the 
Voting Rights Act,4 providing evidence of discrimina­
tory motivation behind at-large countywide voting.

4 For example, in Mississippi, 13 counties attempted to switch to 
at-large voting for members of boards of supervisors, the county 
governing board, and 22 counties attempted to switch to at-large

9



10

The District Court did not find any countervailing 
legitimate, nonraeial reason for maintaining at-large 
countywide county commission elections in Burke County. 
It further found that the adoption of single-member dis­
tricts would not impair the county’s ability to function 
and could be reasonably accomplished (J.S., App. 91a, 
96a). The system of government involved in this case, 
then, contrasts sharply with the system challenged in 
Mobile, in which “ an entire system of local governance 
[was] brought into question”  (446 U.S. at 70).

In Mobile, the fact that each of the Mobile, Alabama 
city commissioners was vested with both executive and 
administrative powers was alluded to by this Court as a 
potential non-racial justification for a system under which 
all voters cast ballots for all members of the city commis­
sion, inasmuch as it would be anomalous to elect a pub­
lic official with a particular executive and administra­
tive responsibility for the entire city (such as the com­
missioner in charge of public safety) from a limited 
geographic portion of the city. See Mobile, supra, 446 
U.S. at 70. This is in contrast to a purely legislative 
policy-making body in which the responsibilities of each 
member are the same, and where each citizen is con­
sidered to have an adequate voice by voting for a single 
legislator who represents a specific geographic area. See 
Connor v. Finch, supra, 431 U.S. at 415. Unlike the 
Mobile City Commission, the Burke County, Georgia 
Board of Commissioners is purely a policymaking body, 
where each member’s responsibilities are alike, and none 
possess executive or administrative functions.® Thus, 
there is no non-racial justification based on executive 5

elections for county school board elections. See Fairley v. Patter­
son, decided sub. nom. Allen v. State Bd. of Elections, 393 U.S. 
544, 550, 569, 574-576 (1969); U.S. Commission on Civil R ights, 
T he Voting R ights A c t : Ten Y ears A fter 271 (1975).

5 Executive duties are vested in the County Administrator, who is 
appointed.



11

and administrative responsibilities wmch underlies at- 
large elections in Burke County.’6

Because of this distinction, “ purpose” and “ effect” are 
much more closely related in the instant case than in 
Mobile. There, the plurality said:

The impact of the official action— whether it bears 
more heavily on one race than another—may provide 
an important starting point . . . But where the char­
acter of a law is readily explainable on grounds 
apart from race, as would nearly always be true 
where, as here, an entire system of local governance 
is brought into question, disproportionate impact 
alone cannot be decisive, and courts must look to 
other evidence to support a finding of discriminatory 
purpose.

446 U.S. at 70 (emphasis added). Since, in this case, “an 
entire system of local governance” is not at issue, dispro­
portionate impact will be more probative of discriminatory 
intent, for a non-racial justification is not apparent. In­
deed, the showing of racial impact is extremely relevant to 
a finding of purpose in the present lawsuit because the gov­
ernmental decision at issue involves not a choice of an en­
tire local governance system, but only a choice regarding 
electoral districting. Any such districting decision is 
merely a determination of which groups of voters will have 
the deciding votes in electing particular public officials. In 
essence, the goal of an apportionment scheme is the allo­
cation of political power. Apportionment decisions are 
directly reflected in the resulting distribution of electoral 
power: which groups of voters possess power and which 
ones do not. The purpose, therefore, is commensurate

6 Justice Stevens expressed the view in Mobile that there can 
always be “ a substantial neutral justification for a municipality’s 
choice of a commission form of government . . . .”  446 U.S. at 92, 
n. 14 (concurring opinion). Insofar as that justification consists of 
the desire to have all city voters participate in the choice of offiicals 
who will exercise citywide executive and administrative power, 
it is unavailing to the defendants in this case.



with the result, and the result is a strong indication of 
the purpose.

Finally, and contrary to appellants’ submission, (Br. 
32, 41), the Mobile plurality’s observations concerning 
the popularity and historical development of at-large 
municipal elections are irrelevant here, since they relate 
only to the development of municipal governments in 
America and not to at-large elections for county gov­
ernment.7 Moreover, the thesis that at-large municipal 
elections were “ universally heralded not many years ago 
as a praiseworthy and progressive reform of corrupt 
municipal government”  (Mobile, supra, 446 U.S. at 70 
n. 15) is flatly contradicted by the most recent and ex­
haustive research on the subject, contained in Rice, 
P rogressive C it ie s : T h e  Co m m is sio n  Go v e r n m e n t
M o v e m e n t  in  A m e r ic a , 1901-1920 (University of Texas 
Press, 1977).

Dr. Rice’s detailed historical analysis shows that the 
adoption of at-large voting under commission forms of 
municipal government in the early 1900s was generally 
the result of power struggles for the control of municipal 
government in which the white “ business elites” (his 
term) used at-large elections to wrest political control 
from working class, ethnic, and minority citizens. Id. at 
xvi, 4-18, 26-29, 34-51, 60-61, and passim,8 Far from

7 Unlike municipalities, a majority of which maintain at-large, 
citywide election systems (Mobile, supra, 446 U.S. at 61),

[A ] majority of all counties in the Nation are governed by 
popularly elected officials who represent districts or areas 
within their respective counties.

U.S. Bureau of the Census, Governing Boards of County Govern­
ment: 1973 (Series SS No. 68) 4 (1974).

8 Dr. Rice’s research and conclusions are amply supported by 
prior research in the field. See, e.g., J. Weinstein, T he Corporate 
Ideal in  the L iberal State, 1900-1918, ch. 4 (1968); S. Hays, The 
Politics of Reform in Municipal Government in the Progressive 
Era, 55 PAC. N.W. Q. 157-69 (1964) ; J. Weinstein, Organized Busi­
ness and the City Commissioner and Management Movements, 28 
J. S. H ist. 166-82 (1962).

12



being “universally heralded” as a progressive reform 
measure, the spread of at-large municipal elections was 
bitterly opposed by organized labor (with some excep­
tions), working class elements, and ethnic and racial 
minorities who feared, quite correctly, that at-large vot­
ing would exclude them from participation in municipal 
government. Id. at 27-29, 47, 78, 84-89. Indeed, Rice 
concludes that a causal relationship can be inferred be­
tween black population in cities and the adoption of the 
commission form of municipal government {id. at 89), 
and notes: “ Ethnic minorities were rightly suspicious of 
at-large elections that ended their close association with 
ward politics” {id. at 88).

A number of social reformers of the day fought the 
move to at-large voting for the reason that it diminished 
the impact of ethnic and minority votes {id. at 85), and 
Charles Beard, the noted contemporary political scien­
tist, cautioned against at-large voting in his 1912 text­
book on municipal government, stating that it “ substan­
tially excludes minority representation”  {id. at 78).

Dr. Rice’s research also cautions against any assump­
tion that the initiation or continuation of at-large gov­
ernmental schemes in municipal America was motivated 
only by good-government considerations. In many cities, 
at-large governments failed to increase efficiency or to 
eliminate factional bickering and boss politics. Id. at 
88-99, 111. Although there was evidence of improvement 
in some municipalities, contemporary writers also criti­
cized commission government municipalities for poor debt 
management, internal strife, extravagance, and lack of 
expert management. Id. at 96-97.

In some cities the populace had simply traded the 
logrolling and political tradeoffs of ward politics for 
similar tactics among semi-autonomous departments. 

Id. at 91.
Thus, even if this case involved a city rather than 

a county government, we would urge the Court to reject

13



the notion that the Mobile panel’s generalized observa­
tion— which should in any event be reevaluated in light 
of relevant historical scholarship— can furnish a legiti­
mate, non-raeial reason for the perpetuation of at-large 
voting for Burke County Commissioners. Even less sup­
portable is the suggestion that the plurality’s generaliza­
tion outweighs or rebuts the other substantial evidence 
of discriminatory intent in the record, or that it can 
substitute for a particularized inquiry— as was per­
formed by the District Court here— into the motivation 
for retaining an at-large election scheme in a specific 
locality. Cf. Stewart v. Waller, 404 F. Supp. 206 (N.D. 
Miss. 1975) (three-judge court).

4. Sequence of Events. According to the court’s deci­
sion in Arlington Heights: “ The specific sequence of 
events leading up to the challenged decision also may 
shed some light on the decisionmaker’s purposes.”  429 
U.S. at 267.

In 1964, as the Civil Rights Movement reached its 
zenith and voter registration drives were underway in 
Georgia, the state legislature instituted majority vote 
and numbered post requirements—both of which disad­
vantage black voters—for all at-large county commis­
sion elections in Georgia, including those in Burke 
County. (J.S. App., 65a, n. 2 ). This matter of tim ing9 
is one of the pieces of evidence which shows that at-large 
elections were maintained for racially discriminatory 
reasons, for both measures have a discriminatory effect 
on black political participation.10

14

9 See Arlington Heights, supra, 429 U.S. at 267, n. 16 and accom­
panying text.

10 Of course, plaintiffs here challenge the entire at-large scheme 
in Burke County, not just these particular characteristics. But 
evidence about the characteristics is highly relevant to the ultimate 
issue, for if they were adopted for a racially discriminatory reason, 
then the electoral system of which they are a part was obviously 
maintained for purposes of racial discrimination.



Moreover, the addition of these provisions indicates a 
substantive departure from normal state policy, in the Ar­
lington Heights sense, since they were obviously considered 
unnecessary to the functioning of at-large elections prior to 
1964. Indeed, there is no adequate non-racial explanation 
for the majority vote and numbered post requirements 
and the absence of a residency requirement— all of which 
disadvantage black voters—for there is nothing in the 
nature of at-large election schemes which requires these 
characteristics. See generally, City of Rome, Georgia 
V. United States, 446 U.S. 156, 183-185 and nn. 19-21 
(1980) ; White v. Regester, supra, 412 U.S. at 766.

Because the District Court’s conclusion of discriminatory 
purpose— affirmed by the Court of Appeals— relies on 
findings and evidence which sufficiently portray uncon­
stitutional intent as defined by previous decisions of this 
Court, the judgment below should be affirmed.

II. THE CONSTITUTION PROHIBITS AT-LARGE 
ELECTIONS WHICH HAVE THE EFFECT OF 
PERPETUATING OFFICIAL AND INTENTIONAL 
DENIAL TO BLACKS OF EQUAL ACCESS TO THE 
POLITICAL PROCESS.

An at-large voting system, though itself racially neu­
tral, violates the Fourteenth and Fifteenth Amendments 
if it perpetuates an intentional and purposeful racially 
discriminatory denial of access to the political process. 
This perpetuation standard, which was approved in 
Kirksey v. Board of Supervisors of Hinds County, Mis­
sissippi, 554 F.2d 139, 143-144, 146 (5th Cir. 1977) 
(en banc), cert, denied, 434 U.S. 968 (1977), properly 
examines the “ historical context and conditions” of a 
challenged governmental action. Reitman v. Mulkey, 387 
U.S. 369, 373 (1967). Additionally, it focuses on the 
issue of discriminatory intent, and thereby meets the 
Fourteenth Amendment requisites of Washington v. 
Davis, and the plurality opinion in Mobile.“  The Kirksey 
Court explained: 11

15

11 Kirksey is consistent with the opinions and the decision in 
Mobile. Rather than relying on the type of Zimmer v. McKeithen



16
If a neutral plan were permitted to have this dis­
criminatory effect, minorities presently denied access 
to political life for unconstitutional reasons could be 
walled off from relief against continuation of that 
denial. The redistricting body would only need to 
adopt a racially benign plan that permitted the rec­
ord of the past to continue unabated. Such a rule 
would sub silentio overrule White v. Regester. It 
would emasculate the efforts of racial minorities to 
break out of patterns of political discrimination.

554 F.2d at 147. This Court itself has acknowledged 
that, in the area of voting rights, the proper response to 
prior unconstitutional acts includes eliminating “ the dis­
criminatory effects of the past.”  Louisiana v. United 
States, 380 U.S. 145, 154 (1965).

This constitutional analysis comports with the Court’s 
unanimous decision in White v. Regester, which was re­
affirmed in Mobile.12 The ultimate proof required by 
White v. Regester was exclusion from the political sys­
tem— a showing that “ the political processes leading to 
nomination and election were not equally open to par­
ticipation by the group in question.” 412 U.S. at 766. 
This could be done, according to the Court, by proof of 
current exclusionary effect along with a demonstration 
of prior official discrimination— political and otherwise. 
Thus, of evidentiary importance were such things as a 12

(485 F.2d 1297 (5th Cir. 1973)) laundry-list presumption disap­
proved by the Mobile plurality, the Kirksey Court focused on intent 
and found prior intentional discrimination, the exclusionary effects 
of which were perpetuated by the electoral scheme at issue.

To the extent that Kirksey relied upon or reflected the Zimmer 
analysis, it can be disregarded, allowing the perpetuation standard 
forwarded here to be viewed independently of Zimmer.

12 It is clear that all of the opinions in Mobile approved the result 
in White V. Regester. The Mobile plurality concluded that White 
V. Regester rested upon an intent standard consistent with IVash- 
ington v. Davis, and Justice Stevens’ separate opinion did not dis­
agree with White V. Regester, nor did Justice Blackmun or the 
dissenters.



17

history of official discrimination which touched on the 
political processes, historical exemption of blacks from 
the political party process, prior use of the poll tax and 
restrictive voter registration procedures, and historical 
discrimination which resulted in present low levels of 
minority voter registration. The perpetuation of the 
purposeful political exclusion caused by these prior in­
stances of official discrimination compelled the Court to 
declare the multi-member districts at issue in violation 
of the constitution. It should be noted that the Court 
did not undertake an examination of the Texas govern­
ment’s motivation in 1970 in designing the districts. Nor 
was it considered necessary to demonstrate a causal link 
between the particularized effects of the multi-member 
districts and prior discrimination. It sufficed to show 
that prior purposeful official discrimination caused polit­
ical exclusion of racial minorities, that the exclusion 
remained, and that it was perpetuated by the multi­
member districts.18

A similar perpetuation standard has been consistently 
employed in school desegregation cases. In Green v. 
County School Bd. of New Kent County, 391 U.S. 430 
(1968), the Court articulated the duty of a school board 
to disestablish an unconstitutional dual school system. 
Green said that “ freedom of choice” plans are not un­
constitutional per se, but must be invalidated if  they 
continue the segregative effect of the prior statutorily 
mandated dual school system. 13

13 This Court described with approval the District Court’s action 
with regard to Bexar County, Texas: “ Single-member districts
were thought required to remedy ‘the effects of past and present 
discrimination against Mexican-Americans,’ [343 F. Supp. 704, 
733], and to bring the community into the full stream of political 
life of the county and state by encouraging their further registra­
tion, voting, and other political activities.” White v. Regester, 
supra, 412 U.S. at 769. Obviously, the Court felt that the Con­
stitution requires eradication of the effects of past and present 
discrimination. See Louisiana v. United States, supra, 380 U.S. 
at 154.



18

Three years later, Swann v. Charlotte-Mecklenburg 
Bd. of Educ., 402 U.S. 1 (1971), emphasized that a 
school district has the constitutional duty to eliminate 
every vestige of state-imposed segregation. The Court 
noted that the Constitution is not satisfied by racially 
“ neutral” government actions which allow the effects of 
prior unconstitutional discrimination to remain.

“ Racially neutral” assignment plans proposed by 
school authorities to a district court may be inade­
quate; such plans may fail to counteract the continu­
ing effects of past school segregation resulting from 
discriminatory location of school sites or distortion 
of school size in order to achieve or maintain an 
artificial racial separation. When school authorities 
present a district court with a “ loaded game board,” 
affirmative action in the form of remedial altering of 
attendance zones is proper to achieve truly nondis- 
criminatory assignments. In short, an assignment 
plan is not acceptable simply because it appears to be 
neutral.

402 U.S. at 28 (emphasis added). See also Keyes v. 
School District No. 1, 413 U.S. 188 (1973). Similarly, 
when prior intentional discrimination in the area of vot­
ing rights presents black citizens with a “ loaded game 
board,” it is constitutionally insufficient to justify as 
racially “ neutral” an electoral scheme which leaves the 
game board loaded by perpetuating past discrimination.

Only recently, in Dayton Bd. of Educ. v. Brinkman 
{Dayton II), supra, the Court reiterated that a school board 
guilty of past intentional discrimination must avoid ac­
tions which have “ the effect of increasing or perpetuating 
segregation.” The measure of conduct under that duty 
“ is the effectiveness, not the purpose, of the actions in 
decreasing or increasing the segregation caused by the 
system.” Thus, the school board must “ do more than 
abandon its prior discriminatory purpose.” It must see 
that pupil assignment policies and school construction 
and abandonment practices ‘are not used and do not



19

serve to perpetuate or re-establish the dual school sys­
tem.’ ” 443 U.S. at 538, quoting Columbus Bd. of Educ. v. 
Penick, supra, 443 U.S. at 460.

Dayton II and the other school cases illustrate that 
plaintiffs need not prove a direct causal link between 
prior discrimination and the discriminatory effects of 
the particular decision being challenged. For instance, 
if  a challenge were brought to a neutrally motivated de­
cision about the location of a new school in a formerly 
dual— and not yet unitary— system, plaintiffs would not 
be required to show that the particular and isolated dis­
criminatory effect of the location (such as the projected 
one-race character of the school’s enrollment) was the 
direct result of prior intentional discrimination; rather, 
it need only he demonstrated that the location perpetu­
ates the segregation which has resulted from past main­
tenance of the dual system. 443 U.S. at 538. See also, 
e.g., Flax v. Potts, 404 F.2d 865 (5th Cir.), cert, denied, 
409 U.S. 1002 (1972). Similarly, plaintiffs herein need 
not show that the effects of the at-large scheme itself 
directly resulted from prior discrimination;14 they need 
only show that it actually perpetuates the direct effects 
of the past intentional discrimination.15

This Court has already made clear that the perpetua­
tion principle is not limited to school desegregation cases. 
As Chief Justice Burger noted for a unanimous court 
in Swann, school cases do not differ from other types of 
litigation when it comes to the repair of a denial of 
constitutional rights. 402 U.S. at 15-16. Furthermore, 
the use of the perpetuation standard in the school deci­

14 Certainly there is evidence to make that proof, even though 
it is not required. For past discrimination directly caused current 
low voter registration levels for blacks and current bloc voting, 
both of which severely disadvantage blacks under the at-large 
electoral system.

15 As previously noted, this point was also made by the Court’s 
analysis in White v. Regester.



20

sions accords with this Court’s emphasis on intent in 
other types of equal protection cases. Washington v. 
Davis specifically noted that the school desegregation 
cases have “ adhered to the basic equal protection prin­
ciple that the invidious quality of a law claimed to be 
racially discriminatory must ultimately he traced to a 
racially discriminatory purpose.” 426 U.S. at 240 (em­
phasis added) .18

Moreover, the perpetuation standard was not rejected 
in Washington v. Davis, Arlington Heights, and Person­
nel Administrator v. Feeney, all of which examined only 
the present intent behind challenged enactments, and 
not the perpetuation of prior discrimination.* 17 Finally, 
by allowing evidence of past history and current impact 
in the search for “ ultimate” intent, Washington v. Davis 
and Arlington Heights obviously permit application of 
the perpetuation standard which links prior intentional 
discrimination with the maintenance of discriminatory 
effects. Washington v. Davis, supra, 426 U.S. at 242; 
Arlington Heights, supra, 429 U.S. at 267.

The record below and findings of the District Court 
amply support the conclusions that (1) prior purpose­
ful discrimination resulted in the denial of equal access 
to the political process; (2) the effects of the intentional 
denial remain; and (3) the denial of equal access is per­
petuated by the at-large system.

18 See also Personnel Administrator v. Feeney, supra, 442 U.S. 
at 272 ( “ if a neutral law has a, disproportionately adverse impact 
upon a racial minority, it is unconstitutional under the Equal 
Protection Clause . . .  if that impact can be traced to a discrimina­
tory purpose.”  (emphasis added)).

17 Feeney held that the Massachusetts legislature was not uncon­
stitutionally motivated simply because it adopted a veteran’s pref­
erence which had the foreseeable effect of perpetuating the fed­
eral government’s intentional discrimination against women through 
its military policy. But Feeney did not involve a situation where, 
as here, the challenged decision is that of the particular govern­
mental units whose own prior discrimination is being perpetuated.



21

1. Prior purposeful discrimination

It was not long after the Civil War ended that the 
State of Georgia began its successful efforts to disfran­
chise the newly freed black citizens. A poll tax was in­
stituted in 1871, followed by a cumulative poll tax in 
1877 which was specifically designed to eliminate blacks 
from the voter registration rolls. The white primary 
began its life in Georgia in 1898, with the final blow ad­
ministered in 1908 by the passage of a comprehensive 
state constitutional suffrage amendment, which included 
manipulable tests for literacy and understanding, a prop­
erty ownership requirement, and a grandfather clause. 
The overwhelming historical evidence shows that all of 
these measures were adopted with the express purpose 
of preventing blacks from voting.18

The white primary was not struck down until 1946 
(J.S. at 74a; Chapman v. King, 154 F.2d 460 (5th Cir.), 
cert, denied, 327 U.S. 800 (1946)), and even after that 
blacks remained totally disfranchised in Georgia because 
of a combination of state and county government actions, 
including the poll tax and arbitrary administration of 
the literacy test. (J.S. App., 86a). It was 1965, with 18

18 J. Morgan Kousser, T he Shaping  of Southern Politics, 
(Yale University Press, 1974), pp. 209-223, 239. It is interesting to 
note that the historical background of the 1908 Georgia Amendment 
clearly refutes the reasoning of those courts which automatically 
conclude that voting measures passed during a time of widespread 
black disfranchisement could not have been tainted by discrimina­
tory intent. See e.g., McMillan V. Escambia County, Florida, 638 
F.2d. 1239, 1244 (5th Cir. 1981); McGill V. Gadsden County Com­
mission, 535 F.2d 277, 280-281 (5th Cir. 1976). Despite the fact 
that only a few blacks were able to vote immediately prior to 1908 
because of the existent poll tax and white primary, the suffrage 
amendment was nevertheless passed with the express purpose of 
providing extra insurance against blacks ever voting again. Kousser, 
supra, at 221. Governments caught in the grip of a period of 
racist fever often react with extreme and duplicative measures 
which far exceed that which is necessary to accomplish their in­
vidious ends. See James Silver, Mississippi: T he Closed Society 
(Harcourt, Brace & World, 1964).



22

the passage of the Voting Rights Act, before blacks were 
even able to begin registering in significant numbers. 
However, in Burke County, Georgia, governmental au­
thorities did not give up their fight against black suf­
frage, and intentional obstacles continued to be thrown 
in the path of black political participation well into the 
1970s,1® The County attempted to eliminate all but one 
polling place (PI. Ex. 11; T. 42) and maintained only 
one registration site for years (J.S. App., 81a), thus 
making it difficult for the disproportionately impover­
ished black citizens to travel for the purpose of exercis­
ing their electoral rights. Voter registration was limited 
to one day, with an additional short period on Saturday 
morning which itself was later eliminated. (PI. Ex. 7, 
10, 41; T. 39, 41, 56).

Furthermore, the District Court’s findings of fact 
show that the registration of potential black voters was 
being hindered by the County Commissioners’ “ sluggish­
ness’ even after commencement of this lawsuit. (J.S. 
App., 81a). According to the evidence, blacks for ten 
years sought registration sites in each of the 15 voting 
districts, but were falsely told by county officials that 
registration was illegal unless conducted at the court­
house; intervention from the Georgia Secretary of State 
was sought before this charade ended. (T. 734). Three 
additional sites were finally approved, but were open 
only for a few days prior to the 1976 election. (PL Ex. 
99; T. 639; see J.S. App., 81a). Even then, there were 
instances of intentional efforts by county officials to pre­
vent blacks from registering. (T. 319-321, 952).120 The 
county steadfastly refused to appoint black deputy regis- * 20

w The Court of Appeals noted that the Burke County Commis­
sioners made it necessary for blacks to go to court in an effort 
to obtain the right to register and vote. 639 F.2d at 1376-1377.

20 These instances, along with other evidence of political exclu­
sion, show that this case is unlike Mobile, where the District Court 
found that blacks register and vote “without hinderance.”  446 U S 
at 73.



23

trars, despite the willingness of several black citizens to 
serve voluntarily. (T. 724, 953-956).

Literacy and understanding tests, long the tools of 
black disfranchisement, were readopted by the 1976 
Georgia Constitution, Ga. Code § 2-403, and are inopera­
tive only because of the Voting Rights Act.

In addition to discrimination touching directly on the 
political processes, there is extensive evidence and find­
ings regarding the plethora of past official discrimina­
tion which pervaded Georgia21 and Burke County in all 
walks of life, and which was found by the District to 
have caused blacks to suffer inadequate educational op­
portunities and overall socioeconomic disparities, which, 
in turn, affect their ability to participate in the polit­
ical process. (J.S. App. 74a, 81a-84a).22 Cf. Gaston 
Comity V. United States, 395 U.S. 285, 297 (1969) (in a 
county which previously provided blacks with inferior 
educations in segregated schools, “ ‘ [ijmpartial’ adminis­
tration of the literacy test today would serve only to 
perpetuate these inequities in a different form.” ) .

2. The effects o f  the intentional denial remain

As all of this evidence of historical and recent inten­
tional discrimination shows, blacks were totally excluded 
from the political process until 1965, and continue to 
be excluded to a greater degree than whites because of 
the discrimination. The District Court specifically found,

21 The District Court took judicial notice of Georgia laws indica­
tive of discriminatory intent. (J.S. App., 76a).

22 Based in part on expert testimony, the district court found 
that black citizens, suffering from disproportionately greater poverty 
than whites, have a generally heightened struggle for the means of 
daily sustenance, thereby reducing the time, energy, and opportunity 
for participation in the political process. This was held to be a 
result of past intentional discrimination. (J.S. App., 83-84 and 
n. 19). See Kirksey, supra, 554 F.2d at 145, n. 13.



24

and the Court of Appeals agreed,2,3 that the intentional 
exclusion of blacks directly resulted in relatively low 
voter registration rates,23 24 * * * * 29 (J.S. App., 71-72; 639 F.2d 
at 1377-1378), thus inhibiting the efforts of blacks to 
elect candidates who share their political interests. This 
low level of registration takes on added significance in 
light of the fact that blacks constitute a majority of 
the county population. By prior intentional discrimina­
tion, government officials have kept black voter registra­
tion disproportionately low, thus preventing blacks from 
exercising significant political power.

Another consequence of the intentional racial segrega­
tion and discrimination practiced for years in Georgia 
and Burke County is bloc voting. As the District Court’s 
finding indicates, official discrimination created distinct 
racial interests which manifest themselves at the polling 
places. (J.S. App., 72-73). Blacks, having suffered so 
long from the invidious discrimination thrust upon them,

23 All of the relevant district court findings of fact were affirmed 
by the Court of Appeals.

24 As previously noted, the district court also found that official
discrimination causing inadequate educational opportunities and 
socio-economic disparities which burden black citizens was manifest
in low voter registration levels. The Fifth Circuit recognized the 
myriad ways in which racial discrimination can influence such 
political factors as voter registration levels: “ Failure to register 
may be, for example, a residual effect of past non-access, or of dis­
proportionate education, employment, income level or living condi­
tions. Or it may be in whole or in part attributable to bloc voting 
by the white majority, i.e., a black may think it futile to register.” 
Kirksey, supra, 554 F.2d at 145, n. 13.

The principle that low socioeconomic status and deprivations in 
education, income, employment and other areas have a negative
impact on opportunities for political participation is firmly estab­
lished by numerous studies in political science. See, e.g., L. Mil- 
braight, Political Participation, ch. V (1965); W. Erbe-, Social 
Involvement and Political Activity: A Replication and Elaboration,
29 A m . Sociological Rev. 198 (1964); A Campbell, et ah, T he 
A merican V oter, ch. 17 (1960); A. Campbell, G. Gurin, & W. 
Miller, T he V oter Decides 187-99 (1954).



25

maintain their own political agenda geared in part to 
escaping racial oppression, and the majority of Burke 
County’s white voters obviously do not support that 
agenda.'25

Additionally, the Democratic Party in Burke County, 
which maintained segregation through the white primary 
and other devices of intentional discrimination, is a near 
reflection of its former self: the Burke County Demo­
cratic Executive Committee was for years all white and 
only recently added one black member. The District 
Court found that past official electoral discrimination 
within and without the party process accounted for the 
current dearth of black political participation in party 
affairs, which are closely linked to success in the electoral 
system as a whole. (J.S. App., 74a-75a, 87a-88a).26

Past intentional discrimination, according to the de­
tailed findings of the District Court, also led to the pau­
city of appointments of black citizens to the various gov­
ernmental boards whose membership is controlled by the 
Burke County Commissioners. (J.S. App., 76a, 78a-79a). 
This itself is a measure of exclusion of blacks from the 
process of government. Moreover, there can be no denial 
that service in appointed government positions can pro­
vide the familiarity with government and public expo- 25 26

25 This distinguishes the black citizens in Burke County from 
other political and special interest groups. Republicans cannot 
ascribe their political differences with Democrats to the burdens 
of past state-supported racial discrimination. Bloc voting in the 
black-white context, by contrast, is the vestige of such discrimina­
tion, and therefore, takes on constitutional significance. Certainly, 
without past segregation and discrimination, the political interests 
of whites and blacks would be much more closely intertwined.

26 The activities of political parties are sufficiently intertwined 
with the political process to be considered highly relevant in a case 
such as this. See White V. Regester, 412 U.S. at 766-767. See also 
Smith V. Allwright, 321 U.S. 642 (1944).



26

sure that is helpful to electoral bids for public office. 
Blacks are rarely able to avail themselves of such oppor­
tunities because of the exclusionary actions of the Burke 
County Commissioners.

All of this intentional discrimination, and its well- 
documented effects, combine to create a situation where 
blacks were and still are seriously excluded from the 
political process.

3. Denial o f  equal access is perpetuated by the at-large 
system

Even when some black citizens escaped the most bla­
tant forms of discrimination, and were able to register 
and vote, they found themselves confronted by an at- 
large system of electing county commissioners which, 
when combined with bloc voting— a continued vestige of 
racial discrimination— left their vote devoid of meaning 
in the Burke County Commissioners race.27 It is no small 
frustration to work for years against the most flagrant 
forms of racial injustice to finally gain the freedom to 
physically place a ballot in the ballot box, only to see the 
power of that ballot consistently emasculated by a more

27 Justice Stevens writes in Mobile that voters from a racial 
minority may have a critical impact” on municipal or county-wide 
at-large elections, and that their votes are therefore not rendered 
meaningless. 446 U.S. at 85, n. 5. This observation is valid only 
if black voters choose to provide the “ swing vote” between compet­
ing white candidates. But, as indicated by the evidence of racial 
bloc voting in the instant case and in others, blacks who have long 
suffered from discrimination at the hands of white officials, and 
who have long been excluded from the political process cannot 
realistically be expected to cast their votes for an unwanted candi­
date whose chance for electoral victory hinges upon the fact that 
he is white. Moreover, the evidence has shown that even a white 
candidate who identifies with black interests in Burke County, 
thereby giving blacks a reason to cast their swing vote for him, 
will surely suffer defeat at the hands of the bloc-voting white 
majority. (J.S. App., 73a).



27

subtle at-large election scheme, which the government 
can simply defend as racially “ neutral.”

Rather than seek to ameliorate the effects of political 
exclusion, the state and county governments have con­
sistently chosen a path which disfavors black citizens. 
In addition to the refusal to appoint black deputy regis­
trars, the delay in expansion of registration sites, the 
failure to appoint black members of government com­
mittees, etc., there has been the maintenance of at-large 
elections, the exclusionary effects of which were height­
ened in the 1960s— after black registration increased— 
by the addition of majority-vote and numbered-post re­
quirements. (J.S. App., 65, n.2).28

In sum, the government has knowingly perpetuated 
the tragic effects of prior intentional racial discrimina­
tion against black citizens in Burke County and the 
intentional exclusion of those citizens from the political 
process by maintaining at-large elections in such a way 
that blacks cannot elect candidates of their choice, 
whereas in a districting system, such electoral success 
would be possible.29

28 The Mobile plurality discounted the significance of numbered 
post and majority vote requirements by saying “ they tend nat­
urally to disadvantage any voting minority.” 466 U.S. at 74. That 
point is irrelevant to the instant analysis, for however those fea­
tures impact other voting groups, it is clear that in this case they 
disadvantage a racial minority whose political exclusion is directly 
caused by intentional discrimination. The fact that they also dis­
advantage other groups— say Republicans—whose relative political 
exclusion is caused by factors unlinked to lawless discrimination 
is of no constitutional consequence.

29 It is not proportional representation which the black citizens 
of Burke County seek. Were the black population spread evenly 
throughout the county, electoral success would be prevented even 
in a districting system because of geographic factors unrelated to 
the method of election. The plaintiifs would then have no case. 
But the Burke County black population is not so dispersed, and 
the plaintiffs seek only that which would occur in the absence of 
the at-large system.



28

III. THE OPINION OF THE COURT OF APPEALS IS 
INCORRECT INSOFAR AS IT REQUIRES A SHOW­
ING OF UNRESPONSIVENESS TO SUSTAIN A 
CHALLENGE TO AT-LARGE ELECTIONS.

In an unprecedented departure from decisions of this 
Court, the Court of Appeals stated that proof of unre­
sponsiveness is a 'prerequisite to a successful dilution 
claim, despite the fact that the issue is unnecessary to 
resolution of the instant case. Lodge v. Buxton, 639 F.2d 
at 1373-1374.®°

Underlying the appeals court’s conclusion was an effort 
to understand the Mobile plurality’s treatment of Zim­
mer v. McKeithen. According to the Fifth Circuit panel, 
the refusal by the Mobile plurality to accept Zimmer in 
its entirety reflected disapproval of the failure of the 
Zimmer plaintiffs to prove unresponsiveness. But the 
Mobile plurality implied no such thing. It disapproved 
of Zimmer to the extent that proof of the “Zimmer 
criteria” had been construed to necessarily create a pre­
sumption of discriminatory intent. 446 U.S. at 73. 
Nothing was said about responsiveness in terms of the 
Zimmer decision.

Indeed, the Mobile plurality’s statements about unre­
sponsiveness flatly contradict the Court of Appeals’ con­
clusion. According to the plurality, unresponsiveness “ is 
relevant only as the most tenuous and circumstantial 
evidence” of the constitutional validity of at-large sys-

30 Since unresponsiveness was clearly proven by the plaintiffs, 
according to the District Court and the Court of Appeals, the effect 
of the absence of such proof need not be decided in this case. Un­
fortunately, however, the Court of Appeals’ decision on this issue 
needs to be addressed by this Court in the context of this case, lest 
the Court of Appeals and the District Courts within the Fifth Cir­
cuit labor in future cases under the misapprehension that it con­
stitutes a correct application of the law.



29

terns. 446 U.S. at 74. Certainly, the plurality cannot 
be thought to imply that “ tenuous”  evidence is a neces­
sary prerequisite to a successful lawsuit.

Thus, in an opinion which preceded the Court of Ap­
peals’ decision below, another panel of the Fifth Cir­
cuit concluded that “ [ajfter Bolden . . . [wjhether cur­
rent office holders are responsive to black needs . . .  is 
simply irrelevant . . .; a slave with a benevolent mas­
ter is nonetheless a slave.” McMillan v. Escambia 
County, Florida, supra, 638 F.2d at 1249 (5th Cir. 
1981).

In other areas “ responsiveness”  has been rejected as 
an element which defeats a claim of discrimination. 
For example, in Arlington Heights, this Court said that 
“ a consistent pattern of official racial discrimination” 
is not a necessary predicate to a constitutional violation. 
“A single invidiously discriminatory government act . . . 
would not necessarily be immunized by the absence of 
such discrimination in the making of other comparable 
decisions.”  429 U.S. at 266, n. 14.

What the Court of Appeals’ ruling condones is the main­
tenance of an otherwise discriminatory exclusion of black 
voters from the political process simply because they have 
been provided with roughly equal governmental services. 
Certainly, school boards which maintain equal funding and 
services for black students cannot use that excuse to 
justify placement of those students in a separate school 
on the basis of race. Brown v. Board of Education, 347 
U.S. 483 (1954). Neither, then, can the Court of Appeals’ 
holding stand as an excuse for governments to place 
black citizens on the outside of the political system simply 
by spending additional money on them.



30

CONCLUSION

The judgment of the Court of Appeals should be 
affirmed, except that its holding that proof of unrespon­
siveness is a controlling factor in vote dilution cases 
should be disapproved. Alternatively, if this Court de­
termines that the District Court’s findings are insuffi­
cient to support its conclusion of unconstitutionality, the 
judgment should be vacated and the case remanded to the 
District Court for reconsideration in light of Mobile.

Respectfully submitted,

R ichard C. D in kelspiel  
Ma x im il ia n  W . K em pner  

Co-Chairmen
W illiam  L. R obinson 
Fr a n k  R. Parker  *
Barbara Y. P hillips  
R obert Bruce M cD uff 

L aw yers ’ Comm ittee for Civil 
R ights Under La w  

738 15th St., N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amicus Curiae

Counsel of Record