United States v. Marengo County Commission Court Opinion

    - _ l:__
1546 lsr

i$- '

.\

FEDERAL REPORTER,2d SERIES :
.a

meuts. ' Nevertheless, in our system gf
American justice, a defendant rhust be al-

lowed the opportunity to try to establish t

the suggested unr.ealism. The lawyer's
testimony might not have been eredible.
Ghitis and Eisenstein might have been fan-
ciful to argue their lack of knowledge
about the reporting requirements. Still,
the issue was one for the jury to decide on

the presentation of all relevant evidence.

While it may stretch credulity to believe
that anyone engaged in a business such as

appellants' might not know of these report-
ing requirements, it is equally difficult to
believe that the Government's prosecuting
attorney was unaware of the relevance of
the testimony sought to be elicited from
Ghitis'attorney. In order for appellants to
establish their good faith reliance on advice
of counsel, it was necessarily releuant for
the lawyer to tell the jury the nature of the
enterprise presented to him by Ghitis and

Eisenstein and upon which he gave his
advice. It was of scant relevance that the
lawyer might have told appellants that they
were not required to file CTRs unless it
also appeared that the lawyer had been

fully advised of the operations of their
business. Appellanls were required to
show that, as to this particular enterprise,
the lawyer advised them not. to be con-

cerned about the CTRs.

4. If any'thing, the Government's "harmless er-
ror" theory illustrates hor,r'unwise it might have
been for the prosecutor lo have misled the judge
into making this error. By keeping the lauyer's
testimony from the jury, the prosecuior exclud-
ed evidence tending to supporl his theory that
Ghitis and Eisenstein must have knou'n about

appellants ean show no harm resulting

We are not convinced by thb Govern-
ment's "harmless error" argument.r As
we have said, it might have been unrealistic
to suggest that Ghitis and Eisenstein, oper-
ators of a business of this magnitude, re-
lied in good faith on the advice of their
attorney that they were not required to file
these reports. However, even though it
might be true that appellants would have
been convicted for the lack of credibility of
their only defense, the harm in having been

denied such a defense is highlighted by the
fact that, weak as it might have been,

reliance on advice of counsel was appel-
lants' only defense. The evidence of full
disclosure, eonsisting entirely of Ghitis' un-
supported testimony, could have been cor-
roborated by his lawyer. The trial judge's

failure to permit this highly relevant testi-
mony cannot be dismissed as harmless er-

ror. Therefore, we reverse.

REVERSED.

UNITED STATES of America,
Plaintiff-Appellant,

the reporting requirements. If the lawyer's tes-

timony agreed with that of Ghitis, then from the
extent of the disclosure made by Ghitis to the
lawyer the prosecutor might have argued, and
the jury might well have agreed, that appellants
kneu about the CTRs and realized that thel'
were required to file such reports.

1
(

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j
I
j
1

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1

l5l The Government, although conced- MARENGS COUN; CSMIyISSI9N, et
ing that the lawyer's testimony should al.. Defendants-Appellees.
have been admitted, argues that any error
was harmless because Ghitis testified as to No' 8l-7796'

the substance of his conversations with the United States Court of Appeals,

lawyer and, in any case, because the attor- Eleventh Circuit.
neys for both sides argued to the jury as if
Ghitis actually made a full disclosure. May 14' 1984'

Hence, the government urges that the law-
yer's testimony was merely cumulative of Plaintiffs brought Voting Rights Act
evidence already before the jury and that suit against county commission and others.



iJ" -
--.-.-

UNITED STATES 1' MdRENGO CoUNfFmM'N l54l
C[c u ?3t r2d lsa6 (t9t')

TheUnitedStatesDistrictCoohfortheasamended'42U'S'C'A'S10?3;U'S'qA'
southern District of etJema, william Bre- const.Amends. 14, 15'

"""J 
H"ra, J., 469 F'Stpp' 1150' entered ,. atu,rtes F26?(2r ,''

';liil"ll"'T,.*'.?'#$; #ll-*:* ".":-::::*:::, l'nn""""ury 
to rind

judgment for defendants, anJ appeal was affirmat]ve support in a statute or its legis-

taken. The court of Appeals, wisdom, iative history for applying it to pending

Senior Circuit Judge, sitting by designa- t""t' " 
tt"i't" will- be assumed to apply

tion,heldthau(1),.*na,n-"nt-toVotingtocasespendingatthetimeofitspassage
Rights Act proscribi;; ;;; practice im- o'l"st thete is a clear indication that it is

,"i.a t, " *"nn"' *iitt' '""'tt" 
in denial not to apply'

of tn" rigtt to vote on account of race does

not conflict with or contract any right pro- ,. B1""1isns G=10

tected by the Constitu;i;;, 
"rrd 

no*'ing in Amendment to voting Rights Act pro-

theConstitutioneitherexplicitlyorimplicit.scribingnotonlythosevotingpracticesdi.
ly prohibits a results standard for voting tttify itotttibed Uy the Fifteenth Amend-

rights violations; (2) 
"'iJ"nt" 

was insuffi- meni' L't also any practice imposed in a

cient to sustain oisirici court,s finding *"nnu, which results in denial of the right

that "apathy," not the at-large election sys- to vote on account of race was applicable to

tem at issue, was responsible for the lack voter dilution suit which was pending on

of black success at the polls; and (3) de- appeal when the amendment became effec-

spite Court of eppu"tti d'etermination that tiut' b"t"utu the case presented a public

evidence before ui,t'lt C""rt establishe6 *"it"' concerning the most fundamental

a clear violation of Voting Rights Act, fublic rights, application of the amendment

judgment would not U" 
"'t"-'"a 

ii favor of *"'la 'lt 
*o'k " deprivation of personal

plaintiffs, but cause *"tiJ u" remanded to rights that had matured or become uncon-

allow the'parties to update the record and diiional' defendants were not burdened in

to supplement the ;;";; with evidenct u" wa''- by application of the amendment'

that might tend to "ti"ti 
C""' of Appeals' una 

"piritution 
of the amendment did not

finding of discriminatory results' *otL 
^'"ny manifest injustice' Voting

vacated in part, reversed in part' and ttf^:;t tlt"lnuu' 
I 2' as amended' 42

remanded' 
5. Constitutional Law @225'3(1)

The equal Protection clause of the

1. B;""116ns el2 Fourteenth Amendment applies to vote di-

Unresponsiveness by public body in lution' U'S'C'A' Const'Amend' 14'

question to group claiming injury is not.an 
5. B1"s1i6ns €=12

essential element of a claim of unconstitu-

tional vote dilution' Voting Rights Act-o^f Amendment to' Voting Rights Act pro-

1965, s 2, as amendea, az i'S'i'e' S 19?3; scribing n:l' 
?'1Y 

those voting practices di-

U.S.C.A. Const.Amends' 14, 15' t"ttry 
-prohiblted by the Fifteenth Amend-

*eri, tut also any practice imn-os.ed t1, a

2. Blsslisns @12 'n'nn"t 
which results in denial of the right

The history of discriminatory voting to uote.on,att'"::."t race is not limited in

practices is too comflex for any court. tl its application'lo foimal barriers to access

conclude that a staiute was not enacted such as literacy or residency tests' but

with discriminatory intent simply b".ru.i 
"pplies 

to vote dilution claims as well' vot-

blacks could not vote when the statute wa"s ing nigt,. Act of 1965, s 2, as amended' 42

adopted. voting &;t,; Act of 1965' s 2' u's'c'A' s 19?3'



I 1548

7. Comtitutional Law e209
Elections 612

73T FEDERAL REPORTER, 2d SERIEE

The enforcement clauses of the Four_
teenth and Fifteenth Amendments srant
authority to Congress no less broad"than
its authority under the necessarv and orou
er elause. U.S.C.A. Const.Amends. fi, fb.

8. Elections @12
The results test of amendment to Vot_

ing Rights Aet proseribing not onlv those
I9ling practices directly prohibited-by the
Fifteenth Amendment,'but also 

"ny 
pr".-

tice imposed in a manner which reiul* in
denial of the right to vote on aecount oi
race does not effectively require jurisdic-
tions to adopt proportional representation;
states may retain the perceived benefits of
at-large representation while providins oo_
portunities for effeetive minoiitv parti-cioa_
tion. -Voting Rights Act of tg'OS, S Z,'as
amended, 42 U.S.C.A. S 19T8.

9. States @4.16
The Civil War Amendments overrode

state_ autonomy apparently embodied in the
Tenth and Eleventh Amendments and em_
powered federal [Jovernment to intervene
ln state and local affairs to protect the
rights of minorities newly granted nationaj
9i-tiz_e1sh1p U.S.C.A. ionst.Amends. 10,
11, 14, 15.

I0. Constitutional Law e50
Con_gressional disapproval of a Su-

preme Court decision does not impair the
power of Congress to legislate a d'ifferent
result, 

-as 
long as Congreis had that power

in the first place.

ll. Elections el2
Amendment to Voting Rights Act pro-

scribing not only those voling-praetices di_
rectly. prohibited bv Fifteentli Amendment,
but also anv practice imposed in a manner
which results in denial oi the right to vote
on account of race does not conflict with or
contract any right protected bv the Consti_
tution, and nothing in the Constitution ei_
ther explicitly or implicitly prohibits a re-
sults standard for voting rights violations:
accordingly, the amendment to the Act i.
constitutional. Voting Riehts Act of 1965.
I ?, u^. amended, 42 U.S.C.A. S 19?B; U.S.
C.A. Const.Amends. 10, 11, 14, 15.

12. Elections @12
Discriminatory intent need not be

shown to establish a violati<.rn of sr,(.1jon sf
Voting RighLs Act proscritr;,r; ,,,,, oni.,l

' those. voting practices direetly prohibited
D) .tttteenth Amendment, but alco anv
ptactice imposed in s manner which resulti
in denial of the right to vote on 

"".*nf of
race. 

_ 
Voting Rights Act of 1965, S 2. ;;

amended, 42 U.S.C.A.. S l9?9.

13. Elections c>I2
At-large elections are not prohibited

per se under section of Voting Riehts Aciproscribing-n9t only those votling firacticesdrrectty prohibited by the Fifteenth Amend_
ment, but also any praetice imposed in a
manner whieh results in denial oi the rishi
to vote on account of race, nor does a liclof proportional representaiion 

"ut"*"ti."i_lL require a finding of a violation. Votins
Xrghts Act of 1965, S 2, as amended, Aiu.s.c.A. S l9?3.

14. Elections e=l2
I'he absence of minority elected offi-

cials may be condidered as an indieium-of
vio?tion of section of Voting nigfrts eci
prohibiting any voting practic*e i."pos"a-in
a manner which results in deniai of the
rigJrt to vote on aecount of race, ""d;;at-large system will violate the statu; if it
results in a denial of equal participation.
Votin_g-Rights Act of 1965, S '2, 

"; il;;;-ed, 42 U.S.C.A. S 19?9.

15. Elections 612
. Section- of _Voting Rights Act proscrib-
rng not only the voting practices directlv
prohibited by the Fifree;th Amendmeni.
but also anv practice imposed in a manner
which results in denial oi the right to vote
on account of race focuses not on whether
minority groups receive adequate public
services, but whether the minorities have
an equal rjgh! to participate in the political
process. 

. totilg- Righrs Act of 1965, S 2,
as amended, 42 U.S.C.A. S l9?J.

16. Elections el2
Und.er Voting RighLs Act provision

proscribing voting practices which^result in
denial of the right to vote on account of
race, racially polarized voting will ordinari_
Iy be the keystone of a casE of vote dilu-
tion, because in its absence black candi-
dates could not be denied office because
they were black and because the statute is
intended not to create race-conscious noli-
tics but to remedy it where it alreadri ex-
ists. .\'oting Rights Act of iS6S, S-i, ;,
anrerirlt.rl. ll L.S.C.A. S 1g?8.

r7. El
s

preser
vanta,
burde
vantal
pation
else.
amen(

18. C,
v

regist
result
that c

officia
failed
areas
offer
trar.
amen(

19. El
A

showi
major
shot r
vision
partic
ing Ri
U.S.C

20. Er
E

cant i:
not w
ceedir
proscr
a mat
right
Rightr
U.S.C.

2r. Et
U

policy
reasor
the at
crimin
tenuor
is circ
is mo
Voting
ed, 42

22. El
In

is still
to resr
intendr



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ts
lv
hs
'or
ls

d
ct
BS

d-
t
rt
&
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2

t-

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t
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I

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UNITED ttlt?i.:#l}1x3,f:uNrY coM'N '164e

17. Elections €=12 evidence that the device has a diseriminato-

lvhere there is tiear evidence of rv resalt, and the tenuousness of the justi'

Dresent socio-ecpnomi.'lT'poiiiiJJ';.u& fication for a state policv mav indicate that

vantage resulting rr* pllrttaj..iifri""ti;;, il;;ldl.-uri"irl vjtine Rigl'ts Act of

burden is on those *h, #;;il;ijiil;?ql 1e65' s i' as amended' 42 u's'C'A' s 1e?3' /
vantaee is causing redueed political partlel- 23. Elections el2
p"tion"to show that the cause is something Less'than proportional representation
;L;. Voting Rights Act of 1965, S 2, as does not automatiially violate section of
amended, 4'U.S.C.A. S 1973. Voting Rights Act proscribing any voting

,3. gounliss @3E pt"ttlit irn'posed in a manner which results

where fewer bracks than whites were [i:mlif,l'&lf,lJ nJ:ffitf,:":,:Hi
registered to vote, countv election,policies ;;;;;;;';;";;ll;;.b;r of minority elect'
reiulted in discrjmination against,b,la:Ksl -tll "a 

offi.i"t. will not compel a finding of n-o

that county had low. number ot blacK porr dilrtion. Voting Rights Act of 1965, S 2,

oiii.i"t., trlta-snort hours for registration, I. 
"."ra"a, 

Iifu.S.t.a. S 19?3.
f;i[A t, conduct registration in outlying

"."ur 
of county, and spurned voluntary 24. gounligs @>38

offer of black 6itizen to serve as a regis- Evidence in Voting Rights Act suit

ior. Voting Rights Act of 1965, 5 2, as was insufficient to sustain district court's
amended, 4iU.S.C.A. S 19?3. finding that "apathy," not county at-large

re. Erections @r2 il?'ii?,"Ji'T,1,31u'ii,li;J?i;T'J"li'il;
A vote dilution case is enhanced by a view of evidence ."r""Iing racially polar-

showing of the existence of large districls' ir"i r"tirg,-a nearly .o*if.t" absence.of
majorit*y vote requirements' anti-single ilf".* 

"f".Ga 
officiais, h[tiry of pervasive

.tlt roiing provisions and the lack of -pro' iu.i"j ai..ri-ination, polling"praciices- thai
,irion tor 

""tjla.ge 
candidates running from iir"i."Jn1u.ks' abilitv to r-egiste. and par-

puJi."tut geogiaphical subdistricts' Vot- li.i#i"-ii'"f".uoi rl.o."ssl election iea-
ilg ndtt ici'otigo;' S 2, as amended,42 iir-r:|."irr'ii "rt""[a'*'e 

opportunity for
u.S.c.A. g 1973. dilution, and considerable unresponsi_v-eness

20. Elections G.l2 ;; the part of^ t-o]lg public bodies' Voting

Evidence of racism can be very signifi- Rigtttt'Act of 1965' s 2' as amended' 42

cant if it is present, #t, i'; ;t;;Jt 
-sfiould U'S'C'A' g 19?3'

noi-*"igh heavily against a plaintiff pro- 2b. Federal 66urt5 @947
ceeding under section of Voting ltlqlf^f:l Despite Court of Appeals' determina-
proscribing any voting- practtce 'PPot:o.Jl tion thai evidence before district court es-

i *anner which results in dental ol Lne L[ti.l.a a clear violation of section of

ilflJn'*'o""?*",'i,ft;:"$1, "j, ?;";,uX:l'it X.XX;ji"1fJi:i;: l*'"'Ji:I$f;:n .""",Xi,:
u.S.c.A. 5 19?3. In ,teniar of the right to vote on account of

21. Elections @12 race' judg*ent would not be entered in

Under an intent test, a strong state llm"t';':il:'il?r:ff?'::"Jl;'i"f ;";
poticy-in favor of at-large elections'.for 

record and to .rppt"#lni'if,"-."["J-*ltn

ffi:.:ti"$":i[l TIll 'i"i"io#'" 
t13: 

",ii",." that might t""J L-"ir".t courr of

criminatory intent; ;;;';ih;; rran!' a Appeals' finding of 'discriminatorv 
results'

tenuous explanation f-"'"if"'g" "t"ttiont 
in i'iew of the convoluted procedural course

is circumstantial evidence that the system the case had taken and in view of fact that

is motivated by discriminatory purpose' it had been more than five years since case

Voting-RLgh* e.,. 
"i'igesl 

s*ll u'" u'i"'a' f:s;1;rlf;;tl$ill"uof;r"r1 
ie65' s 2'

ed, 42 U.S.C.A. S 1973'

22. Elections Fl2
In Voting Rights Act suit, state policy

is still relevant iniofar as intent is relevant
to result: evidence that a voting device was

intrnded to discriminate is circumstantial

Joan A. Magagna, Asst. Atty. Gen,,- U'!'
Dept. of Justice, Civ Rights Div', Slash-

incion, D.C., Thonias H. Figures, Asst'
II]S. Attv., \tlrtrllt . Al:,.. fr,r I'.S.

!

-t_ 4i.*



1550 , 73I FEDERAL REPORTER,2d SERIES .

Votir{g Rights Act to restore the Iegal stln.
dard that governed voter discrimination de-
cisions before the Supreme Court decided
Mobile a. Bolden.t We fiow hold that the
1982 amendment to section 2 applies to this

Appeal from the United States District case; that amended section 2 is a constitu-
Court for the Southern District of Alaba- tional exercise of congressional enforce-

Hugh A. Lloyd, Demopolis, Ala., for Ma-
rengo County Bd. of Education.

Cartledge W. Blackwell, Jr., Selma, Ala.,
for Marengo County et al.

Before TJOFLAT and FAy, Circuit
Judges, and WISDOM ", Senior Circuit
Judge.

WISDOM, Senior Circuit Judge:

In 1979 the district court held that the
at-large system for electing the Marengo
County, Alabama county commission and
school board did not violate the Fourteenth
and Fifteenth Amendments; the Civil
Rights Act of 18?0, as amended, 42 U.S.C.
5 l9?1(a)-(1976); and seetion 2 of the Vot-
ing Rights Act of 1g65, as amended, 42
U.S.C. S 1973 (19?6). Clark a. Marengo
County, 1979, S.D.Ala., 469 F.Supp. 11b0.
Since that time, we have remanded this
case once, and the Supreme Court has is-
sued two decisions affecting the standard
of proof in constitutional discrimination
cases. Rogers u. Lodge, 1982, 458 U.S.
6i3, 102 S.Ct. 3272, ?3 L.Ed.zd t}r}; City
of Mobile u. Bolden, 1980, 446 U.S. bb, 100
S.Ct. 1490, 64 L.Ed.zd 47. Furthermore, in
1982 Congress amended section 2 of the
* Honorable John Minor Wisdom, U.S. Circuit

Judge for the Fifth Circuir, sitring by designa-
tion.

t. "In sum, prior to the Supreme Court,s deci-
sioo in Bolden, it was generalll' assumed that
section 2 covered voting laws and practices
having a racially discriminatory effect. That
vieu, was grounded in the legislative history
of the Voting Righrs Act, both in 1965 ani
1970, as well as analysis in the lower
courts-. .. The Bolden decision dealt minori-
ty voters a severe blou,. It repudiated the
legal standard under which minoritics had
successfully overcome voting barriers dcnr.ing
them equal access to the political r,.,.....
Congress, in amending scction 2 ol tirt \ t,t, rg
Rights Act, has acted lo overrul( thc 1r,,,,. ,r

ment power under the Fourteenth and Fif-
teenth Amendments; and that the district
court was clearly erroneous in holding that
Marengo County's at-large system had no
discriminatory results as of the time of
trial. We remand this case to the district
eourt to allow the parties a limited opportu-
nity to update the record and, in the event
that the court finds a continuing violation
of the Voting Rights Act, to allow the court
to devise an appropriate remedy.

I.
Marengo County is a sparsely populated

rural county covering 9?8 square miles in
west central Alabama. Its 1gb0 population
of 29,494 had decreased to 2?,098 in 1960
and to 23,819 in 1970. Blacks comprised
697, of the population in 1950, 62.1% in
1960, and 55.2'l in 1970. The pereentage
of blacks in the voting age population has
Iikewise declined over the years: from
56.1"1 in 1960 to 50.8%, in 1970. The parties
stipulated that at the time of trial 16,000
persons were qualified to vote, of whom 44
percent were black. Blacks have always
constituted a minority of registered vot-
ers.2 There are great social and economic

pluralitl,'s requirement that discriminaton in-
tent be proved to establish a violation. The
new section 2 enacts a standard which focuses
on the rasrzlts and consequences of challenged
electoral practices rather than the motivati,on
behind them...."

Parker, The "Results" Test ol Section 2 ol the
Voting Rights Act: Abandoning the litent Sian-
dard, 69 Va.L.Rev. 715, ?29,764 (1983). See
aboBoyd and Markman, The 1982 Amendments
to the (oting Rights Act: A l*gistative Hbtory,
40 Wash. & Lee L.Rev. t347 (1983).

2. The population figures are:
Total

Yea: Population White pcrc.nt

1950 29,494 9,0t8 30.6
1960 27,00t 10270 37.9

Bhck Pcrccnt

disparit
The r

Board o
tion hal
each bo
and for
In 1955
all men

lyro
l9to

For vr

tl60
1070
1080

The 19
court \
See no

The
Y?a,

1970
t07E

These
vote tI
moved
rolls.

3, The c

plight r

'The
the I

older
1,652
year!
20.29
year!
schor
yearl
figur
blacl
year!
atten
atten
the .

year!
coml
the r

figur
go Cr

ty le'
that
in 19

16,4i
was
$3,t'
Char
U.S.
Cens
1970

POve
units

20,173 @.4
16.828 @.r



UNITED CT.ITPS V. MARENGU COUMY COM'N
Cltc r.731 526 15ae (lltl)

*-..*.i

i l55l

disparities between tlacks and whites.! ed lt-large, with the requirement that one

member live in eacli of the four existing
The County Commission (folmerly the

#fi ; #;:r;i;ffi;'b""iJ"i dar."- districts.s In 1e66 the legislature provided ,
tion have five members each.r Before 1955 for staggered four-year terms'6

Itsn-
nde
lded
; the
ltris
6tu-
)!ce'
Fif.
lict
that
.no
of

rict
rtu-
ent
irn
urt

1970
1080

For voting

each body had a president, elected atJarge,
and four members elected from districts'
In i955 the state legislature provided that
all members of both bodies would be elect-

23,E19 10,062 ,l't.8 13'157 5s.2

25,U7 t t,663 ,16.6 13,3'rG 532

age population, the figures are:

t3,895 6,roa ,li}.g 7,79t 56.1

l{,1r3 6,0{9 192 1,tot 50.t
16,534 8,{60 51, 8,(}45 '18 7

The 1980 figures were not available to the trial
court when this case was first tried in 1978-79'
&e note 50.

The registration data are as follou's:

Ycrr Totrl White Pcrcent Black Percent

Before 1965 no black ran for any office

in Marengo County. Between 1966 and

19?8 there were ?3 county-wide elections in

or all plumbing facilities, and 2,440 (71%) of
the l,jSZ housing units with black heads of
household lacked some or all of such facili-
lies. General Housing Characteristics, Alaba-

ma, pp.2-74, U.S. Department of Commerce
Bureau of the Census (1970). According to a

1976 survey, 2,824 (360/o) of the 7,990 housing

units in IVlarcngo County were rated "sub-

standard." State Housing Plan (June 1976) of
the Alabama Development Office (Gov' Exhib'
ir 47). Finallr', Census figures reveal that the

1970 per capita income in MarenSo County

was $1,639.00, while for black persons it was

only $722.00 (1970 Census, pp' 2-378 & 2-
402)."

469 F.Supp. at I 155. These disparities are even

starker when the statistics for blacks are com-

pared u'ith those for non-blacks rather than

with overall averages. For example, while

36.90/o (2,176 of 5,905) of blacks aged 25 and

older had less than four years of education in

1970, this u'as true for onlv 3.7o/o (22O of 5,956)

of nonblacks. See Government Exhibit No' 47,

stipulations 8-9.

4. Thc Board of Revenue was created in 1923,

replacing the Courl of Count-v Commissioners'

Ait of Sept. 19, 1923, No. 311, 1923 Local Acts

of Alabama 18E. The statutc provided for four-
ycar terms, and stared, "The President of the
-Board 

of Revenue shall bc elected bv the quali-
fied voters of the entirc County, and thc mem'
bcr of the Board of Revenuc from each District
shall bc electcd b1'thc qualified voters of such

districr." Id. I 2, 1923 Local Acts of Alabama at

189. In 1935, thc School Board was organized

along the samc lines, except that the president

and members \r'erc elected for six-year terms'
Act of Jull' 8, t935, No. 183, 5S l-a, 1935 Ala'

Acts 106, 106-{7.

5. Act of Februarl' 17, 1955, No. 17, 1955 Ala'Acts

45 (Board of Revenue); Act of Jul1 29' 1955,

No. 184, 1955 Ala.Acts 458 (Board of Educa-

ti<-rn). Ther t955 . act also adopted four-year
terms for thc Board of Education' /d' SS H,
1955 Ala.Acts at 459.

6. Act of Augusl 16, 1966, No. 44, 1966 Ala Acts

67 (Board of Rcvenue); Acl of August 16, 1966,

No. zl5, 1966 Ala.Acts 68 (Board of Educaliorr)'

t900
1070
t9t0

tg?o t{,630 8,05E 56.1

t9?8 l8,t2l 10,856 57.7

6,302 ,13.9

7.965 42.3

ed
in

on
60
ed
in

re
LS

m
9S

n
V
ts

t-
ic

t-
c
s
d
n

I
,

These figures show more persons regislered to
vote tha; are of voting age; voters who have

moved or died are often not purged from the

rolls. Transcript 1069-72, 120241'

3. The district courl described the socioeconomic
plight of blacks in Marengo CountY:- 

'tt. ISZO Census figures reveal that 744 of
the ll,86l persons of 25 years of age and

older had never attended school and that
1,652 of that number had completed only four
years of education or less, establishing that
io.ZW of the total 1970 population aged 25

years or older had either never attended
school or had not completed more than four
years of formal education' The same census

iigures reveal thal in 1970 there r'r'ere 5,905

bi-ack persons in Marengo County aged 25

yeu.t ot older, that 690 of thcse had never

attended school, and thal 1486 of these had

attended school for four years or less Thus,
the 36.90lo of the btack population over 25

years of age either never attending school or
completin[ four years or less greatll'excecds
the tounty-wide percentage of 20'2o/o' The

fisures funher reveal thal of the 2,244 Marcn'
gJ Cor.,ty families u'ho were bclo* the por cr-

iy level in 1SZO, 1,841 (820/6) were bla-ck' and

t-hat while the median income for all families
in 1970 was $4,909.0O u'ith a mean income of

$6,478.00, the black family's median incomc
was t2,456.0O and its mean income was

t3,175.00. General Social and Ecotttttttic

Characteristics, Alabama, Tables 124 & 128'

U.S. Department of Commerce Bureau o[ the

Census (t970). The housing figures from thc

1970 Census depict a similar pattern of black

povert). 3,045 (400'i') of thc 7,341. housing

units in Marengo Countv in 1970 lacked sonrc



t552 731 FEDERAL SEPORTER, 2d SERIES
,t

which blacks ran against whites.T One
black was elected County Coroner in 1978

by winning the Democratic primary by a
margin of 3,?19 to 3,617 over a white candi-
date. Another black was appointed to the
school board.s

On August 15, 1977 a group of blacks
filed a class action alleging that Marengo
County's at-large system for electing the
county commission and school board unlaw-
fully diluted the voting rights of blacks.
One year later, the United States filed suit
under the Voting Rights Act.e The court
tried the case on October 23-25, 1978 and
January 4, 7979. On April 23, 1979 the
district court issued an opinion and entered
judgment for defendanls. The court con-

cluded that the plaintiffs had not proved
that the at-large system was being main-
tained with a discriminatory purpose. 469

F.Supp. at 1180.

The United States appealed to the Fifth
Circuit. On April 22, 1980, the United
States Supreme Court decided City o.f Mo-
bile u. Boldt'n, 1980, 446 Li.S. 55, 100 S.Ct.

1490, 64 L.Ed.zd 47. Mobile t Boldcn
held that in vote dilution cases discrimina-
tory intent must be shown to establish a

constitutional violation, and it raised doubts
about the methodology used by the Fifth
Circuit in vote dilution cases. This Court
accordingly remanded the case to the dis-

trict court "for further proceedings, includ-
ing the presentation of such additional evi-

dence [as] is appropriate, in light of [Mobile
a. Bolden)". United Slates u. Marengo
County Commission., No. 79-2525 (5 Cir.
Aug. 6, 1980), Record 448,

7. The record is not clcar as to hou' manl black
candidares actuallv ran for countv officc during
this period. Some o[ the 73 counn-widc elec-
tions identified u,ere elections for stale or na.
tional offices; moreover, a singlc candidacl'
might be counted several times i[ lherc werc
multiple elections (e.g. runoffs) for the samc
office.

E. Both were apparently reelected without oppo-
sition after this case was lried. Bricf for thc
Appellees at 25.

9. The complaint alleges that the at-large clcctior.r
systems for the County Commission and Board

Ort May 20, 1981, the Fifth Circuit dJcid-
ed Lodge a. Burton, 5 Cir.1981, 639 F.2d
1358. Lodge held thaL Mobile u. Bolden
does not require direct evidence of discrimi
natory intent but stated, "An essential ele-
ment of a prima facie case [of unconstitu-
tional vote dilution] is proof of unrespon-
siveness by the public body in question to
the group claiming injury." 639 F.2d at
1375. On July 30, i981, the district court
in the present ease again ordered judgment
for defendants on the ground that the
plaintiffs had not established unresponsive-
ness. The court rejected the United States'
offer to present additional evidence, includ-
ing evidence concerning the reasons for the
adoption of at-large elections in Marengo
County, because it concluded that this evi-

dence "u,ould add nothing" to show unre-
sponsiveness. Record 499-501.

ll.2l The United States again appealed,
and we granted its motion to hold this
appeal in abeyance pending review of
Lodge r Burton (sub nom. Rogers a.

Lodge \ by the United States Supreme
Court. On July l, 1982, the Supreme Court
affirmed the result in Lodge, but held that
unresponsiveness is not an essential ele-

ment of a claim of unconstitutional vote
dilution. Instead, the court held that "un-
responsiveness is an important element but
only one of a number of circumstances a

court should consider in determining
u'hether discriminatory purpose may be in-

ferred". Rogers t'. Lodge, 458 U.S. at 625
n. 9, 102 S.Ct. at 3280 n. 9.ro

The 1982 amendment to section 2 of the
Voting Rights Act became effective on

of Education violate the Fourteenth and Fif-
tecnth Amcndrnents and 42 U.S.C. 5S l97l(a)
and 1973. Jurisdiction u'as predicated on 28
U.S.C. SS 1345 and 2201 an{, 42 .U.S.C.
59 1971(d) and 1973j(f).

10. In the light of Rogers r Lodge it is apparent
that the districl court's rulings on intent must be
vacated. Unresponsiveness is not the essential
factor in shou,ing intent that thc district court
held it to be. Furlhcrmore, the record denron'
strates significant unrcsponsiveness to black po-
litical and functional necds on the parL of thr
School Board and thc Board of Registrars. .Scl
part \/B of this opinion. And the dislricl uout r

June 21

96 St8l.
Ecope a

only t}
ited by
any pr:
mannel
abridgt
accouni
s 19?3i
ed). s
Sess. (

Cong.
portl.
the am,

and ho,

County
tory "r'
argue t
should
section
claims;
stitutio
district

"[A]
the tin
ing so
there i

history
mond
711,9.
488.

Uniteo

erred
cedur,
1935
francl
at-larl
their
at-lar1
year i
tion,
873.
tices
clude
crimir
not t
AIAA(
Cir. I !
founc
c lr'. i.



\

1t53
h

- UNITED STATES v. MARENGO COI'INTY.COM'N t
' Clrcu73l F2d 1546 (t9t4)

l
H

r
F
>
b
F
l,
t
t
t
t

June 29, 1982. Pub.L.No. 97-205, sec. 6, u.s. (1'cranch) 103, 2 IrEd. 49, in which

96 stat. 131, 185, Congress redefined the chief Justice Marshall stat€d,

Bcope of section 2 of the Act to forbid not "It is true that in mere private cases

only those voting practices directly prohib- between individuals, a court will and

ited by the Fifteenth Amendment but also ought to struggle hard against a eon-

any practice "imposed or applied . . . in a struction which will, by a retrospective

manner which results in a denial or operation, affect the rights of parties,

abridgement of the right ... to vote on but in great national concerns ... the

account of race or color ...." 42 U.S'C.A. court must decide according to existing

5 19?3(a) (West Supp.1983) (emphasis add- laws, and if it be necessary to set aside a

ed). See S.Rep. No. 41?, 97th Cong., 2d judgment, rightful when rendered, but
Sess. (1982), reprinted in 1982 U.S.Code which cannot be affirmed but in violation

Cong. & Ad.News 177 11982 Senate Re- of law, the judgment must be set aside."
portl. The United States urges us to apply S U.S. (1 Cranch) at 110. The defendants
the amended statute to the existing record argue that ,,manifest injustice" would be
and hold as a matter of law that Marengo doi" if the amended version of section 2

ffi':lffi li'i::::f#,f ;,:*:I]ilffi ;"J:#li:",i,:T:;J';1'ilJx*T;'*:
ilili,'Y1',[il;:';x3lil;lffir:",'#:i,1.:[:;'fl .il*[i'il;;:":'iniHil:"1
section 2 does not apply to vote dilution cess for every citizen, mandate our applica-
claims; that the 1982 amendment is uncon- tion of the law in effect now.
stitutional; and that the findings of the

district eourt are not clearly erroneous. ,r*"T,3",1"#li:IJil::::T:iJ,J;i.1
lative history for applying it to pending

II. cases. A statute will be assumed to apply
,,[A] court is to apply the law in effect at to cases pending at the time of its passage

the time it renders its decision, unless do- unless there is a "clear indication" that it is

ing so would result in manifest injustice or not tn apply. Bradley,416 U.S. aL 712-

thlre is statutory direction or legislative 716, 94 S.Ct. at 2016-2018' Here there is

history to the contrary." Bradley a. Rich- certainly no such indicaLion in either the

mond School Board, 19?4, 416 U.S. 696, statute or its legislative history' On the

711, 94 s.ct. 2006, 2016, 40 L.Ed.zd 476, contrarv, the available evidence suggests

4gg. This prineiple goes back as far as that congress expected the amendment to

United Staies a. Schooner Pegga,1801, 5 govern a case such as the one now before

erred when it held "thar since the election pro- ar-large system used in Mobilc was adopted in

cedures in question were enacted in 1923 and t9ll, when blacks were disenfranchised, but

1935 when tlacks had been effecrively disen- after a painstaking and scholarll' analysis of the

i.an.hised, there can be no allegation that the history of Mobile the district court concluded,

at-large schemes were racially motivated-in and the Supreme court affirmed' that the at-

theirlnactment". 469 F.Supp. al 1172. The largesystemwasoriginallyconceivedaspartof
atJarge system was in fact enacted in 1955, a a comprehensive scheme, devised after Recon-

y"u. ift.i Brov,n l. Brown v. Board ol Educa' struction, to disenfranchise blacks. &e Bolden
iion, 1954,347 U'S. 483, 74 S.Ct' 686, 98 L'Ed' v. City ol Mobile, 1982, S.D.Ala., 542 F.Supp.

873. The history of discriminatory voting prac- fi5Oi Brown v.Board ol School Commissioners,
tices is far too complex for any coun to con- 1982, S.D.Ala., 542 F.Supp. 1O78, alf'd, ll Cir.
clude that a statute \,!'as not enacted with dis- iSSj, ZOO f.Zi ltOS, allii mcm., 1983, 

- 
U.S.

criminatory intent simply because blackscould 

-, 
lM S.Cr. 520, 78L.Ed.2d 705. The district

not vote when the statute was adopted - ln court denied the government the opportunity to
NAACP v. Gadsden Countl' School Board, ll
cir.1982, 691 F.2d 978, 981, a panel of this court present evidence concerning the history of the

found clearll erroneous a district court's con- ir-large system in Marengo Countl" a clearly

clusion rhat a 19-17 clii,l'1. to al'largc elections erroneous ruling'

in Florida had nc, drs.'l;r, ii:llorv purposc' The



_.'r _- "

1554

the C,otrrt, Both RepreJentative Sensen_
brenndr and Senator Kennedy giplicitly'
stated during debate that

"Section 2, unlike the baflout procedure
added by this bill, will take effect imme-
diately, and will, of course, apply to
pending cases in accordance with the
well established principle s of Bradley o.
City of Richmond. 416 U.S. t6961i86
[94 S.Ct. 2006, 40 L.Ed.zd nzo] (rszal ana
United States a. Alabama. 862 U.S. 602
[80 s.ct. 924, 4 L.Ed.zd 982] (1980)."

128 Cong.Rec. H8841 (daily ed. June 28,
1982) (remarks of Rep. Sensenbrenn er); id.
at 57095 (daily ed. June 18, 1982) (remarks
of Sen. Kennedy).rl

141 Our application of the amended ver_
sion of section 2 will serv'e important public
interests without doing any injustice to the
parties. Bradley holds that in detrrrmining
whether the application of new law is just,
a court should consider ,,(a) the nature and
identity of the parties, (b) tle nature of
their rights, and (c) the nature of the im_
pact of the change in law upon those
rightS." 416 U.S. a17t7,94 S.Ct. at 2019.
All these considerations strongly support
applying the amendment to this case.

The first consideration, the nature of the
parties, arises from the distinction, describ-
ed in Schooner Peggy, between private dis-
putes and "great national concerns,,. Al-
though it may not be imperative to appl1,
new congressional enactments to preexist-
ing disputes over private issues, when the
new statute manifesls important public pol-
icv, courts must respect that policy and
apply it. There is no question that this
case is a public matter, concerning the
most fundamental of public righls, the
right to participate in the political process.

The second consideration, the nature of
the rights, is intended to protect personal

ll. The Senate Report refers to the districr
court's l98l decision in lhis case as an example
of why' statutory change was required. ldg2
Senate Report at 39 & n. 147. This suggests that
Congress intended that its amendme-n-t of sec-
tion 2 might change rhe resuh in this casc and
others like ir when relief had prer.iousll. been
denied under the consriturional itandard'of dis,
criminatorl, inrent.

73t FEDERAL REPQRTER, 2d SERIES)
rights that have "matured or become un-
conditional". Brddtey,416 U.S. at tZO, 94
$.Ct. at 2020. There are no such rights
here. The defendants argue that to apply
amended section 2 ,,would operate to de_
prive the state officials of a vested right to
enact and/or maintain state laws, which at
the time of the enactment, and at the times
alleged in this suit, were being maintained
under constitutionally acceptable condi-
tions." Brief for Appellees at g. Even
assuming that the at-large system did not
violate constitutional or statutory prohibi-
tions effective in igSb or lg?g, the defend_
ants' "vested right" theory is unsound.
Under that theory segregated publie tran_
sit would still be permissible since it was
Iegal (according to plessy t,. Ferguson,l
when adopted. The defendants fail to dis-
tinguish between retroactive and prospec_
tive application of the statute. This court
is unconcerned with whether the enactment
of the atlarge system met the legal stan-
dards in effect in 1955. Rather, the ques_
tion is whether the present maintenan.ce
of that system meets the standards in ef_
fect nou. No government entity has a
"vested right" to continue practices validlv
prohibited by Congress

The third consiCeration ,,stems from the
possibility that new and unanticipated obli_
gations may be imposed upon a party with_
out notice or an opportunity to be heard.,,
Bradley, 416 U.S. aL 120,94 S.Ct. at 2021,.
There is no such problem here. The de-
fendants are "burdened" in no way by the
application of the amended statute: thev
become liable for no added obligations on
aceount of any actions taken before the
statute became effective.r2

The application of the amended statute to
this case certainly does not work ,,manifest

12.. At oral argument the defend3nts put forth
the contenrion thal section 2 cannor bL applieJ
retroactivell' because violations of sectior i are
punishable as criminal offenses under section
12...f ,!. Y.,ilg Rights Act, 42 U.S.C. g 1973j(a),
(c) (1976). The defendanrs assert thar retroai.
tive application of section 2 is therefore forbid-
den under Art. I, S 9, clause 3 of the Consrirr,-
tic,n, rvhich prohibits Congress from passing ;ir.

inir
El&
oou

la*
onl:
rele
isa
of
114

Cou

verr
hav
law
Kir
F.2t
ther
a fir
not

T]

tion
ame
Rigl
out
seet
Fift,
that
that
men
whic
Four

faul,
plur,
sugl
Ame
S.Ct
a m:,

that
the
deni:
dilut

ex
tivt
to'
tivt
cri;
am
tha
exi:



I

run-
[9t
&tE
!ply
de
tto
Iet
tEs
ned
ndi-

es-

rce

ef-
a

llv

'"e-'

_ uNrrB, tnn ?i.:J|1tr[%couNrY 
coM'N' 11555

injustiee".tr Moreqvtr, that application Bu$on, 639 F'zd a! 13?2-?3; United

Elso accords with the basic pripciple that states a. uaalde consolidated Indepen'

eourts do not issue advisory opin'iont. tttit dent School Districti 5 Cir'1980, 625 F'zd

lawsuit seeks only pro.p".tir" relief, and 541 ,551-552, cert. denied, 1981,451 u's' /
only the legal standard governing now is 1002, 101 s.ct. 2341, 68 L.Ed'2d 858; oc-

relevant to whether a pispectire remedy cord Perkins a. City of West Helena, 8

is appropriate . see nyi*ki o. state Board cir.1g82, 6?5 F.2d 201, 20H6, affd mem.,

o7'itrri;onr, 1983, b.o.ttt., 5?4 F'Supp. 1982, 459 U'S' 801, 103 S'Ct' 33' 74

rraz, riaa n. 3 (3 judge court). lr iris L.Ed.zd 4?. As Justice Frankfurter stated

court rendered judgment under the old in Lane a. wilson, 1939, 307 u's' 268, 59

version of section 2, that judgment would S'Ct' 8?2, 83 L'Ed' 1281'ven
not
rfui-

nd-
nd.
8n-

ms

'nl
lis-
ec-

rrt
)nt
ln-

h€

li-
h-

l.
e-

re

ry
In

l€

o
,t

h
d
E
a
),

t.
t-
v

have no res juhicata effect, and a new

lawsuit could be filed under the new law'

Kirksey a. City of Jackson, 5 Cir.1983' 714

F.zd 42. To apply the old standard here,

therefore, would be an exercise in futility:
a finding in favor of the defendants would

not be binding on the Plaintiffs.

III.

The defendants assert that a vote dilu-

tion claim is not cognizable under the

amended version of section 2 of the Voting

Rights Act. This argument is wholly with-

out merit. The theory appears to be that

section 2 is either a codification of the

Fifteenth Amendment or based only on

that amendment's enforcement clause, and

that in either case the Fifteenth Amend-

ment does not cover cases of vote dilution,

which must be prosecuted only under the

Fourteenth Amendment. This argument is

faulty on several grounds. Although the

plurality opinion in Mobite a. Bolden did

suggest that vote dilution is a Fourteenth

Amendment issue, 446 U.S' at 64-65, 100

S.Ct. at 1498-1499, u'e have since held that

a majority of the Court in Mobile concluded

that the Fifteenth Amendment, as well as

the Fourteenth, protects not only against

denial of the right to vote but against

dilution of that right as well. Lodge tt'

"The reach of the Fifteenth Amendment

against contrivances by a state to thwart
equality in the enjoyment of the right to

vote by citizens of the United States re-

gardless of race or color, has been amply

expounded by prior decisions.... The

Amendment nullifies sophisticated as

well as simple-minded modes of discrimi-

nation."

30? U.S. at 275,59 S.Ct. at 876'

t5l In anY case, it is clear that the

equal protection clause of the FourGenth

Amerrdment does apply to vote dilution,

Brou'n r. Board of School Commissioners

of Mobile Courzty, 11 Cir.1983, ?06 F'zd

1103, 1107, affd mem.,1983, 
- 

U'S' 

-,104 S.Ct. 520, 78 L.Ed.2d 705, and equallv

clear that the 1982 amendments to the Vot-

ing Rights Act were based on the enforce-

ment clauses of both amendments' 1982

Senate Report at 39-43. Although Mobile

a. Bolden held that the original version of

section 2 was only a statutory codification

of section 1 of the Fifteenth Amendment,

Congress amended the statutre to prohibit

practices not directly prohibited by the Fif-

teenth Amendment' See Mobile u. Bolden,

446 tl.S. at 61, 100 S.Ct. at 1496 (plurality

opinion); id. at 105 n. 2, 100 S.Ct' at 1520 n'

2 (Marshall, J., dissenting); 1982 Senate

Report at 39-40' 
.

expostfactolau,.Thereisnothing.,retroac.13.Althoughthedefendantshavenotindicated
tive,, in our application ot the amenJed staiute that, in fait, thel'have additional evidence rele-

to this case: the complaint seeks only prospec- vanl to result, we are allou'ing the defendants

tive relief' Sections 2 and 12 do nlt- impose an opportunity to introduce an1' such evidence

.ri-i"ui ri"uiriry for actions, taken bef-ore rhe on remand see parl \'l of this opinion'

amended version of section 2 became effective'

ih"t *.t. in conformity with the legal standards

existing at the time.



?3I FEDERAL REPORTER,'2d SERIES

t6l The defendanls contend that it is r
"abundantly clear" that seclion 2 protects

only "access to the political processes"'

We reject any assertion that the statute as

amended applies only to formal barriers to

access such as literacy or residency tests'

The goal of the Voting Rights Act has

always been to ensure an effectiue right of
participation.tr That this continues to be

ii,. 
"ut" 

is made "abundantly clear" by the

words of the amended statute and its histo-

ry. The statute is violated if a protected

ciass has "less opportunity than other

members of the electorate to participate in

the political process attd to elect represent'

atircs of their choice " ' 42 U'S'C'A'
q 19?3(bi (West Supp.1983) (emphasis add-

ed). The act states further, "The extent to

which membr:rs of a protected class have

been elected to office in the State or politi-

cal subdivision is one circumstance which

may be considered" in determining if the

staiute is violated. Id' The amendment

was passed 'in direct response to the Su-

preme Court's decision in Mobile tt' Bolden'

, dilrtion .".". In that decision the Court

increased the burden on the plaintiffs by

requiring them to prove intentional discrim-

ination in election procedures' This "in-

tent" standard was so difficult to meet that

the Justice Department stopped bringing

suits under section 2'r5 It would defy rea-

son to hold that the amendment was not

intended to cover the very type of case that

provoked its passage' See 1982 Senate Re-

iort at 15-1?. The legislative history both

in .uppo.t and in opposition to the amend-

ment'is replete with discussion of how the

amendmeni will apply 1e vote dilution

cases. There is not a *'ord to suggest any

doubt about whether it would appll- to such

cases. See Parker, The "Results" Test of
Section 2 of the Votittg Rights Act: Aban'

doning thi Intent Standard,6g Va'L'Rev'

7t5,162-64 (1983).

14. For example, the preclearance provisions of
' '...iion 

5 were adopied to prcvent 
-sla.tcs 

fronl

dcvising neu means of dcpriving blacks ol ln(

eflccrirc right to vote, aftcr Cotrgtcss banncu

ir,,]li,"tr.r'i"tts and poll taxes prc'iouslr'.uscrl

;;; il*; f.rpn.". Sttuth Carolina v Xat:erthatl:

' We therefore hold that the amended ver-

sion of segtion 2 was intended to apply to

the problem of vote dilution t'hat this case

preslnts. It remains for us to consider

ih"th", the amendment is constitutional'

and if so, how it affects the di'strict court's

ruling in this case.

Stotes, 1980,

1548, 1560,

South Caml
/u.s. 801, 82(

L.Ed.zd 769

1880, 100 u
679. The e

proper" Pow
Justice Mar

land,1819,
5?9:

"[lhe so

tution mt;

ture that
means b;

are to br

will enab
duties as

beneficia
legitimat
the consl
aPProPrir

that end

consist I
constitul

1? u.s. (4

ment claul
grant Con

"Whate'
that is,

the Am'
tends tr
bitions
persons
tY of ci
of the
sion, iI

Er Partt
Congress
of earlit
aet to er

that disr

U'S' at l
Congr

ing Prac

16. Ser,
( I e82),
News I
(le8l);

IV'

The defendants argue that because the

amended version of section 2 prohibits

some voting practices not directly prohibit-

ed by the Constitution, it is unconstitution-

al. In the defendants' view, Congress

usurped the power of the Supreme Court to

interpret the Constitution by attempting to

overrule Mobile a. Bolden' Congress ex-

plicitly acknowledged the binding effect of

ih" Srp..." Court's constitutional inter-

pretation and relied not on any independent

power to interpret the Constitution but

rather on congresslonal power tn enforce

the Civil War Amendments' The defend-

ants, however, contend that the enforce-

ment power does not authorize Congress to

adopt a statutory "results" test for voting

discrimination.

t?l The defendants "tgit 
that tl"

..opl of only the Fifteenth Amendment's

enforcement clause is at issue, but for the

reasons explained in part III of this opin-

ion the question is rather the extent of the

po*". oi Congress under the Constitution

as a whole. We therefore consider wheth-

er a statutory results test is authorized

under the combined grant of authority in

the enforcement clauses of the Fourteenth

and Fifteenth Amendments' It has long

b".n .".ognized that these provisions of

the Constitution grant authority to Con-

gress "no less broad than its authority

ind.. the Necessary and ProPer

Clause. . . . " City of Rome u'' United

1966, 383 U.S' 301,334-35, 86 S'Ct' 803' 822' l5

L.Ed.2d 769,79tu-.791.

t5. Christian Science Monitor' April 14' f8.?: "'" 
27 (.lol.r,r,n bl Rep' Don Edwards of Califor'

rr iu ).

.--<f4*



,

UNITED STATES v. MARENGp COUNTY COM;N

$

1557

r.
D

!
r
t,
a

Clt.D73t F2d t5,16 (19&r)

states, 1980, 446 u.s. 156, 1?5,'100 s.ct. rectlyby the constitution, and the supreme

1548, 1560, 64 L.Ed.2d 119, 138; a.ccord court has upheld these exercises of the

South Carolina a. Katzenbach, 1966, 383 enforcement power' In South Carolina a.

U.S.301, 32F327,86 S.Ct.803,81?-18, 15 Katzenbach, 1966, 383 U.S. 301, 86 S.Ct.

L.Ed.2d ?69, ?8ts-86; Ex parte Virginia, 803, 15 L.Ed.zd 769, the court upheld a

1gg0, 100 u.s. 33g, 34146, 25 L.Ed. 6?6, suspension of literacy tests in specific juris-

6?9. The extent of the "necessary and dictions. In Katzenbach a. Morgan 1966,

proper" power was first explained bychief 384 U.S. 641, 86 S.Ct. 1717, 16 L'Ed'2d 828,

Justice Marshall in M,Cilloch u. Mary- the Court upheld a prohibition on the use of

land, L8lg,l? U.S. (4 Wheat.) 316,4 L.E;. English literacy t€sts to disenfranchise citi-

5Tg: zens educated in Puerto Rico. ln Oregon

"[T]he sound construction of the constr- t'' Mitchell' 1970' 400 u's' 112' 91 s'ct'

tution must ailow to the national legisla- 260' 27 L'Ed'zd 272' the court unanimously

ture that discretion, ffi;;,';..t},. upheld a nationwide ban on literacv tests

means by which the i"*"'.'n .*t.;. ::,1JJ,:J,1;',ilil-.'X,l?1",]:.1,T:1',:,:::
are to be carried into execution, which tions. ln South Carolina u. Katzenbach
will enable that body to perform the high and again in City of Rome the Court up-
duties assigned to it, in the manner most held the preclearance pro'isions of the Vot-
beneficial to the people. l,et the end be ing Righls Act, which require federal re-
legitimate, let it be within the scope of view of all changes in voting practices in
the constitution, and all means which are certain jurisdictions and require the Attor-
appropriate, which are plainly adapted to ney General to object to any change that is
that end, which are not prohibited, but discriminatory either in purpose or effect.
consist with the letter and spirit of the 

The 1gg2 arnendment to section 2 of the
constitution, are constitutional." Voting Rights Act is clearly within the

17 U.S. (4 Wheat.) aL 421. The enforce- enforcement power. Congress conducted
ment clauses of the Civil War Amendments extensive hearings and debate on all facels
grant Congress the power to adopt of the Voting Rights Act rG and concluded

"Whatever legislation is appropriate, that the "results" test was necessary to

that is, adapted to carry out the objects secure the right to vote and to eliminate

the Amendments have in view, whatever the effects of past purposeful diserimina-

tends to enforce submission to the prohi- tion. The Senate Report explains in detail

bitions they contain, and to secure to all why the results test u'as necessary and

persons the enjoyment of perfect equali- appropriate' ln particular' Congress found

iy of civil rights and the equal protection "(1) that the difficulties faced by plain-

of the lau,s against state denial or inva- tiffs forced to prove discriminatory in-

sion, if not prohibited, ....,, tent through case-by-case adjudication

Er parte Virginia, 100 u.s. at 345-46. create a substantial risk that intentional

congress may invalidate the perpetuation lff?11|:i|ili1'fi:JJ,r'l;rl?fr::t
of earlier purposeful discrimination, and tected, unc'rrected and undeterred un-
act to eradicate the continuing effects of less the resfilts test proposed for section
that discrimination. City of Rome, 446 2 is adopted; and (2) that voting prac-
U.S. at 176-71 ,100 S.Ct. at 1561-62. tices and procedures that have discrimi-

Congress has prohibited a variety of vot- natory results perpetuate the effects of

ing practices not necessarily prohibited di- past purposeful diserimination."

16. see, e.g., S.Rep. \r, .il7,97rh Cong., 2C S,.'ss. t0, 1982); id Nos.74-77 (daill eds. Jr::-'r 1.1-18,

(19821, reprintea r, 1rS2 U.S.Codc Cc,trt:. & .\o. 19E2) (Scnatt); 127 ConS'Rci Ij' :' r:;0li
Neu,s 177; H.Rep \. 2??,97th Cong, is: Scss (dail1 ed. Oct. 5, 1962); 128 Cc'ng li'i :;r8J()-

l

)

I

(1961): 126 Co;:g.P., 55{36-56 (dailr t.' .i 46 (dailv ed. Junc 23, 19821



r558. 73I FEDERAL REPORTER,2d SERIBS

1982 Senate Report at 40 (footnote omit-
t€d), 

-U.S.Code 
Cong. & Admin.News 19g2,

p. 218.

Inquiry into the motives of elected off!
cials can be both difficult and undesirable,
and such inquiry should be avoided when
possible.rT The judicial and executive au_
thorities charged with enforcing the la;s
may be reluctant to attribute an intent on
the part of state and local officials to vio-
late those laws.ts In any event, proof of
intent will often be hard to find:

"In almost all conceivable cases, the [of_ficials who adopted or maintain the qvs-
tem] can articulate a plausible neutral
reason for preferring the at-large meth_od. Even where ,evervone 

knoivs, that
racial considerations have had an influ_
ence on the decision, courts mav be ex-
pected to be reluctant to label ihe deci-
sionmakers as racists if ther, can ayoitl
that unseemly task by accepting the neu-
tral €xplanation. Where the responsible
actor is the electorate itself, as it rvould
be in a challenge based on a referendunr.
the difficult.t' of launching an inquirt, intt.r
motite is compounded.',

17.. The intenr test for discriminarion has beenthe subject of exrensive debate anJ i.rii.irrr.Many authors have concluded,f,", i",".i'ir'i""hard ro define, roo difficulr ," p-".., lr'fu.o"i.:irrelevanr ro rhe goal of eradicaring',;;;;:;;.
ot orscrrminalion. See generalll. Brest, palner
u.. Thompson: An Approach t"',t,, moii,r,,'),t
unconsritutional lzgblative Motirc, 197 I Suo.Ct.
Rev. 

.95 ; El5, Legb k t i rc a n tt A d, r, i, ti s t ra,lri"" i,', -
t.ivation in Constitutiottal Lat,, 79 f;"1" i.i.-rZti-;
\\2tO| t Tribe, Amcri ca" Co", t i i, ii_*i't)r.'
1028-32 (1978): Legislatit,e Motiyatior,, iS Sr.urego L-Rev. 925 (l979). Similarl.r, Mtfiilt. y.
Bolden has been debated and .r,ri.lirJ.-".s;,"
e.9., Butler, Constitutional ancl Srutut,,r1, Cir-al'.lgnqes to Election Structures: Dilutiott i"a iirc
Y:j::../^the Right ro Votc, 42 Lr.L.R..r. dii
( I 982 ); 

- 
Soifer, Co m pl ace n a. a n d Ct, n s t i r u t i o-ti a t11u., a2 Ohio SI.L.J. 3g3 (i981); Tl,e Su,or,,j,,-,.Cou-rt, I9Z9 Term, 9t Harv.L.Re,. iS, 

-ila-+S
(1980). This criticism does not ahcr lhc consri-tutional standard: the Constirurion prohibirs in-tenlional discriminalion. But Congrcir;-;;ri;
rationalll' conclude thar a diffcrc,i, .,o,ri"r,slandard would permir fullcr "ntlr..,,;;;;";ithat constilutional prohibition. Sc,, park",.
nole 1,69 Va.L.Rcv. at737_SO.

IE. Congressional adoption of a statulorr slan-dard lor voting rights cascs is consistenl rlith

Itartman, Racial Vote Dilution and Sepa-ration of powers: An Erplanation ofiie
Conflict Between the Judiciat ,,tniriii,
and the Legislatiae i,Results,, 

Standaids,
50 Geo.Wash.L.Rev. 689, ?11_tZ (198a.
See Major a. Treen, fg$, E.D.La., Sia
F.Supp. 3??,346 (3 judge court). corg."..
agreed with this assessment.re .-

Congress noted that charges of purpose_
ful discrimination can havJa airi.;"" ir-pact on local communities. 19g2 Senate
Report at 36. Congress also found that
proving intent can be time-consuring 

"nJver)' cosrly. Id. Congress found that
these costs were not onl.v large Uut oit"n
unnec€ssary. In particular, Congress re_
ferred to Mobile a. Bold.en. That-case was
remanded and the district court again
found a constitutional violation, b"t ;;i;after "a tremendous expenditure of re-
sources", in which the court examined over

T
not
the
unif
Ron
gres

havr
U.S.

ofr
bacl
diser

ered
Voti
discr

Sou;
tens
diser

The
tions
Kati
foret
ever,
ell, i
wide
ing t
crimi

As
plicar

m. 1

pou
inc
Full
S.Cr
stre
gres
rool
whi
tion
ducr
ion
S.ct
Cou
gres
Titl(
U.S.
198 l

Tear
349,
G.iS
S,CI
Conl
Slatl,
olA

one hundred years of historical records to
establish that at-large elections were estab-
Iished for discriminatory reasons. Igg2
Senate Report at 86. Congress .on.trauJ
that such delays and extra costs created
undesirable obstacles to the eradication oi
purposeful discrimination.

the judicial docrrinc thar constitutional .lirioa.tion should be ar.oided u,herc possible. e, 1.1.,
once.befor-e- Congress ha. enabled ,t" ."r.rri.l"o
avoid a difficuh constitutional i..r" Uy p.orill
ing a statutor), remedl, undcr the V"ti;g R;;;
1.1.. ll section 4(e) of rhe 1965 A.r, 4; ,.'S.a:
5.1973b(e) (t976), Congrcss prohibited rhe uscor r.ngttsh lilcrac\. lcsls to disenfranchisc citi_zens educated in puerto Rico and Ur".uf" 

-1.

Spanish. The Suprenrc cor.t .u.ruin"J'1hll
provision in Katzenbach v. Morgan, 1966, ,i;u.s. 641, 86 S.Cl. 1717, t6 L.EA.2d 828. 

' 
TheCo,url u.as thereforc able to a.,oia th" _r.eciifficuh issue of u,hcther such a litsra61, ilviolared the Fourreenth Amcndmenr. i;'rd;;

r'. Pov'er, t966, 3g4 U.S. 672, 86 S.Cr. l7lg, ;eL.Ed.2d 8.{E (rcmanding consrirtrtional chal-
lenge for further considerarion irf the ligh;-;f
Katzenbach v. ltlorgan ).

t9,' T.he Senatc Report nores that intcnt mav behard to provc because of legislative immunit-r.,
irrcompletc legislative history, and rh" 

"asc 
*iii.,uhich.non-racial purposes for a lau,.u., i.ottcred_ 1982 Scnare Reporl al 36_37 (fo()lnolcs

omitred).



,
e
,,

i

I
I

CfteuT3t Frd tSta6 (t9&l)

The defendantS assert that Congress can- Although there is no nationwide record of

not prohibit discriminatory results under pervasive voting discrimination akin to the

the enforcement power. Th" ""." 
law is record of discrimination in the jurisdictions

uniformly to the eontrary. ln city of covered by preclearanee, congress did find

Rome lhe Court stated flatly that "Con- evidence of substantial discrimination out'

gress may prohibit voting practices that side those jurisdictions. 1982 Senate Re-

f,ave only a discriminatory effect".2o 446 port at 92 n. 161' Congress had previously

u.S. at 1?5, 100 s.ct. at 1560. Both city found that minority groups have been giv-

of Rome and South Carolina a. Katzen- en inferior educational opportunities in lo
Doclz upheld prohibitions on changes having ealities throughout the nation and that lit-

discriminatory effects in jurisdictions cov- eracy tests had been used to discriminate in

ered by the preclearance provisions of the jurisdictions not covered by preclearance'

Voting Rights Act. The defendants do not See oregon u' Mitchell' 400 U'S' at 132-34'

discuss City of Rome, but argue that 91 S'ct' at 268-69 (opinion of Black' J');

south carilina tt. Katzenbach made ex- Id. at234-36,91 s.ct. at 319-20 (opinion of

tensive and detailed findings of purposeful Brennan, White, and Marshall' JJ'); S'Rep'

discrimination in the covered jurisdietions' No. 295, 94th Cong', lst Sess' 2l-35' re-

The defendants contend that only "excep- printed in 1975 U'S'Code Cong' & Ad'

tional conditions" akin to those discussed in News 7?4, 787-801' It was not unreason-

Katzenbach sustain an exercise of the en- able to conclude that these same nation-

forcement power. The defendants, how- wide problems could contribute to risks of

ever, make no mention of Oregon a' Mitch- discrimination through voting devices other

e//, in which the Court sustained a nation' than literacy tesLs' Moreover' minority

ui.deban on literacy tests without demand- residents of areas where purposeful dis-

ing evidence of nationwide purposeful dis- erimination is pervasive may and often do

crimination. move to other areas, where the earlier dis-

A.s in oregon u. Mitchell, nationwide ap- crimination against them impairs their abil-

plication is justified here for many reasons. ity to participate fully in the political pro-

UNITED STATES V. MARENGO,COUNTY COM'N

I
1559

cert. denied,1980, 446 U.S. 917, l0O S'Ct' 1850,

64 L.Ed.2d 271. Anothcr statute that prohibits
conduct having a significant discriminatory ef-

fect, u,ilhout proof of discriminatory intent, is

rhe Fair Housing Act, 42 U'S.C. 99 3601-3619
(1976 & Supp. \' 1981). t)nited Srates v. Mitch-
ell, 5 Cir.1978,58O F.2d 789,791. Thc Courts of
Appcal have unanimouslv upheld thc power of
Congress to appll this test to local governments'

Sec Sntith t'. Tottn ol Clarkton,4 Cir.1982, 682

F.2d 1055, 1065', L)nired Stares t'- Citl'ol Parma,

6 Cir.l98l, 661 F.2d 562,571-72' 573' 576, cert'

denied, 1982,456 U.S. 926, lO2 S.C1. 1972, 72

L.Ed.2d 441', Resident Advbory Board v. Rizzo' 3

Cir.1977,564 F.2d 126, 146-48, cen. denied,

1978. 435 U.S. m8, 98 S.Ct. 1457, 55 L.Ed'2d

499: Metropolilan Housing Development Corp' t
Village ol Arlington Hei9hts,7 Cir.1977,558 F'2d

1283, 1288-90, cert. denied, 1978, 434 U.S. 1025'

98 S.Ct. 752, 54 L.Ed.2d 772, on appeal alter
remand, T Cir.1980, 616 F.2d 1006, 1008, l0lO-
l1', Ilnited States v. City ol Black Jack, 8 Cir'
1974,508 F.2d 1179, lt83-86, cert. denied' 1975,

422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694.

Z). Thc Court has also recognized congressional
power to legislate against discriminatory effects

in conte*ts other than voting' For example, in
Fullilot,e t'. Klutznick, 1980, 448 U'S' 448, 10O

S.Ct. 2758, 65 L.Ed.2d 9O2, Chief Justice Burger
stressed thal the Constitution authorizes Con-

sress to eliminate disparities that have "their
ioots in racial and ethnic discrimination, and

r,l'hich continue toda]', even absent any inten-

tional discrimination or other unlau'ful con'

ducr." 448 U.S. ar 478, 100 S.Ct. ar 2774 {Opin'
ion of Burger, C.J.); accord id. at 518-19, 100

S.Ct. at 2795-96 (Opinion of Marshall, J')' The

Court has repeatediy upheld the power of Con-

gress to p.oi,ibit discriminatory effects under
iitl. vll-of the Civil Rights Act ot 1964' 42

U.S.C. SS 200Oe to 2000e-17 (1976 & Supp V.

l98l). See, e.g., Inrernational Brotherhood ol
Teamsters v. lJnited States, 1977,431 U.S 324'

349, 97 S.Ct. 1843, 1861, 52 L.Ed'2d 396, 423;

Giggp t'. Duke Power Co., 1971,401 U'S' 424, 9l
s.cl..aas, 2s L.Ed.2d 158. we have held that
Congrcss rnar appl'r' the discriminatorl' effects

stan-da.d of Titlr'\'Il t() the states' Scott v' Cil|'
ol Annisror; i I lq7q, 597 F.2d 897, 899-900,



1560 731 FEDERAL REBORTER,2d SERIES

cess.2r We take judieial notice of tlre fact
that different minorities have been subject
to different kinds of discrimination in iif-
ferent places.zz Congress could justifiably
conclude that a nationwide prohibition ot
voting practices with discriminatory results
was necessary to remedy the effects of
purposeful discrimination throughout the
country. "Congress may paint with a
much broader brush than may this
Court. . . . " Oregon u. Mitchell, aOO U.S.
at 284,91 S.Ct. at 344 (Opinion of Stewart,
J.)

Finally, Congress found nationwide appli-
cation of the results standard desirable to
avoid the risk of stigmatizing certain areas
of the country, and to avoid provoking sen-
timent that such areas ,,were uniustiliablv
singled out". 1g82 Senate Report at ad,
L-.S.Code Cong. & Admin.News L982, p'.
220. By eliminating anv appearance of re_
gional discrimination, Congress made it
more likely that state and local officials
will comply with the law. Nationwide ap-
plication also avoids the administrative dif_
ficulties of determining where a statute
21. See Oregon v. Mitcheil,400 U.S. at 233_31, gl

S.Cr. ar.3l9-20 (Opinion of Brennan, Whit", 
"" 

j
Marshall, JJ.); id. at 283, 9t S.Ct. ai Saa lOfin-ion of Stew,art, J.).

2: e"-q"!:*//-r S.Rep. No. 295, 94rh Cong., lsr
Sess. 24-35, reprinted irr 1975 U.S.Coae C<r'r,g.-t
Ad.News 774, 7g0-.g}2 (discussing 

"".a i"i-'Ui
Iingual voting prot,isions of Vorin! nigt r. a.t i"protect Hispanic, Asian, and Naiive 

-American
citizens).

23- Preclearance has not alwal,s been effectjt.e,
largely, because covered jurisdictions trr. ir"l
quentl_v overlooked or ignored their dur5. unJ.r
the. la\\, to.submit voting changes for aiproval,
or have submitted the changes years afier thc.
were put into effect. See l9g2 Senate Report a-t
I l-14. For example, staggered terms u,ere
adopred in Marengo Counry in 1966, but rhe
Countl's preclearance submission u,as not com-
pleted unril April 6, 197g, ru,elvc y""r. rft"l. rh"
change was carried out and nearll, .igf,, -"riir.aJrer the private plainliffs filej ,h;, i;._;;li.(When rhc change w,as finalli. subnritted, ihc
Attorney General declined ro inrcrpose ," uUj"..
tion, but noted thai this decis;on ,rlas bascd onl.
on the apparent cficrt ol rhr Iq,., .l,rng.. il,.
Attorne), General madc rrr, r(,i)i ( srntali()ils r( _

garding thc validirr ol li,. ; .,.. :rCol:ir,n ol

will apply and where it will not. Oregon a.
Mitchell, 400 U.S. at pl,}_84,9r S.bt. at
343-44 (Opinion of Stewart, JJ.

t8l Section 2 therefore meets the first
portion of the test laid down in M,Culloch
and, Er parte Virginia: it is clearlv an
"appropriate" means for carrying ori th"
goals of the Civil War Amendments. Nor
is the results test prohibited by any other
part of the Constitution. The defendants
argue that section 2 is an impermissible
infringement on state powers. But section
2 is far less of an interference with state
powers than the preclearance provisions
approved in South Carolina a. Katzen_
bach and, City of Eome.zs Nor does sec-
tion 2 violate states, rights by limiting their
choiees of electoral processes. Section 2
leaves state and local governments free to
choose the election svstem best suited to
their needs, as long as that svstem pro_
vides equal opportunities for efiective par-
ticipation by racial and language minori_
ties.2r

l9l The Civil War Amendments over_
rode state autonomv apparently embodied

at-large elections.) &e Answer of Defendanr
Marengo Counry Board of Educarjon, E_tibit ;;
Record 323-324. Congress t,u, a.r".ri."a i'nui
preclearance is too expensi\," 

"nd 
ti-"-.onrrra-

ing to be enforced eflccrivelS. on , ,otio.,r.,ij.
basis. See 1982 Senatc Report at f+_fS- in-
stead-, Congress chosc fo rel1, on section i
u'hich does not requirc auromatic revierv of allvoting changes-,,to challengc .,<rring discrimi-
nation anywhere that it mighr be 

"p.or,.d 
iooccur". ld. at 15, U.S.Code Cong. it AJ_f".

Neu,s 1982 p. 192.

24. The results tesl does nor, contrarv to the
arguments of somc of its opponcnts, effectivelr.
require jurisdictions ro adopi proportio.,al ."i-reseilation. States ma5. ."tain ih" perceived
benelils of at-largc- representation whiie provid-
rng opportunities for effective minority partici-pation. A variety of alternatives ur. i""iluBt..
For example, a board u,ith ninc -..b".. _'iJi
hare six members elecred b5, ai"ril,r-"na-ii,i""
elected al large. See Mobiti v. A"U"rr, +ii'i.i.
at 82, 100 S.Cr. at l-507 (Blackmun, J., concur
ring). 

. 
Alternativell., all ninc membc,rs .orlJ b,

e.lccted at-large, but each votcr coulci bc circn
the righr lo vote for on15.fire."naia"r.lr,'rr.,,.,'
e;lsuring that minoritr. political inicrcsts rr t,u.
hir\'(, a chance to elect membcrs to thc bt,al.,()r:r,: alternatives are cumulatir,c vc,lint arl:-.,;;:,ir;uble prc-ferential voring. Sec Zrrll,,,

/ in the Tenr
EEOC o. I

- 
n. 18,

L.Ed.zd 18,
U.S. at L,t

Fitzpatrick
453-56, 96 I
6L4, 620-22
granted nat
and guarant
voting proc(
plainly empt
to intervene
protect the
grant€d nat
Rom.e, 446
1562-63. ,,[

tailor carefu
legitimate st
liberties and
Congress is
ple in the exr
bach a. Morl
S.Ct. at 1?2
important ir
election pracr
sonably con(
criminatory I
reduce the ri
and the per
Today it is a

intrusion intr
the states to
avoid discrim
tion process.

The report
on the Const
was "retroac:
tivity" had r
Supreme Cou
we have alre
there is nothir
2. It does n
election condu
tion 2 is no m
of the Votinl
proved in pre

man, The Fedt
rit,e Eleett.,,t
521 (1978 N



a.

3t

UNITED STATES v. MARENGO COUNTY COM'N 1561
I CltcrT3l F:d lta6 lt9Ea)

in the Tenth and Eleventh Ampndments. South Carolina a. I{atzenbach approved
EEOC a. Wyoming, 1983, 460 U.S. 226, the suspension of literacy tests in covered /

- 
n! 18, 103 S.Ct. 1054, 1064 n. 18, 75 jurisdictions although some of these tests

L.Ed.2d 18, 33 n. L8; City of Rome, 446 may haye been valid before the passage of
U.S. at 1?8-80, 100 S.Ct. at 1562-63; the Voting Rights Act of 1965. See Lassi-
Fitzpatriek a. Bitzer, 1916, 427 U.S. 445, ter o. Northampton Election Board, L959,
453-56, 96 S.Ct. 2666,2670-71, 49 L.Ed.2d 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.zd t072.
6L4, 620-22. The Civil War Amendments Katzenbach u. Morgan approved the ban
granted national citizenship to all blacks on New York's EnglishJanguage literaey
and guaranteed their right of access to the tcst as applied to Puerto Ricans, even
voting process. By their very nature they tlrough that test might have been valid
plainly empowered the federal government under the standards existing before 1965.

to intervene in state and local affairs to The i970 Voting Rights Amendments simi-
protect the rights of minorities newly larly banned literacy tests, residency re-
granted national citizenship. See City of quirements, and age limits, many of which
Ronte, 446 U.S. at 179-80, 100 S.Ct. at were unquestionably valid before the Act
1562-63. "[T]he States can be required to was passed. ln Oregon u. Mitchell the
tailor carefully the means of satisfying a Court approved all the lg70 Amendments
legitimate state interest u'hen fundamental except the age limits as applied to state
liberties and rights are threatened ... and and local elections; its disapproval of the
Congress is free to appl."" the same princi- age provision had nothing to do with
ple in the exercise of its powers." Katzen- "retroactivity".

|tt
Nt
rh
he

or
BT

ts
le
rn

2
ts

t-
:-
ir
2
o

0

bach t. Morgon, 384 U.S. at 654 n. 15, 86

S.Ct. at L725 n. 15. The states have an
important interest in determining their
election practices. But Congress eould rea-
sonably conclude that practices with dis-
criminatory resulls had to be prohibited to
reduce the risk of constitutional violations
and the perpetuation of past violations.
Todaf it is a small thing and not a great
intrusion into state autonomy to require
the states to live up to their obligation to
avoid discriminatory practices in the elec-
tion process.

The report of the Senate Subcommittee
on tlre Constitution argued that section 2

was "retroactive" and that such "retroac-
tivity" had never been approved b5 the
Supreme Court. In part II of this opinion
we have already'explained, however, that
there is nothing "retroactive" about section
2. It does not affect the validity of any
election conducted before its passage. Sec-

tion 2 is no more retroactive than were any
of the Voting Rights Act provisions ap-
proved in previous Supreme Court cases.

man, The Federal Voting Rights Acr and Ahenta-
tive Election S)'stems, 19 Wm. & Marl, L.Rer'.
621 (1978); Note, Alternatire l/otittg S)srem-s a.s

The Senate Subcommittee on the Consti-
tution also argued that the results test is

uncorrstitutional because it "is offensive to
the basic colorblind objectives of the Con-
stitution". 1982 Senate Report at 172, U.S.
Code Cong. & Admin.News 1982, p. 345.
The Subcommittee argued that under the
results test, "[c]onsiderations of race and
color u,ould become omnipresent and domi-
nant". Id. al 173, U.S.Code Cong. & Ad-
min.News 1982, p. 346. This is an argu-
ment of poiicy, not one of constitutionalitl..
The Senat.e Report responds to the Subcom-
mittee's concerns by noting that section 2

is intended to appl.v- onll' where racial poli-
tics already' "dominate[s] the electoral pro
cess". 1d. at 33, U.S.Code Cong. & Admin.
Neu,s 1982, p. 211. Section 2 is not meant
to create race-conscious voting but to at-
tack the discrirginatory results of such vot-
ing u'here it is present.

ll0l The defendants argue, as did the
Senatt Subeomr.nittee on the Constitution,
that section 2 is an inipennissible effort to

Rcntciic.s lor I.niu'.: lui .4t.Largc .Srslclr.. Sl
'l'alc 1...1. l-li {1o."^J

L*-. 4edll! -,



1562

overturn the Supreme Court's intcrpreta-
tion of the Constitution in Mobite o. Bol-
den. The opponents of section 2 argue
that it is not an exercise of the enforee
ment power but an effort to redefine the
meaning of the Civil War Amendments by
statute. There is no doubt that Congress
amended section 2 principally because Con-
gress was dissatisfied with the effect of
Mobile o. Bolden on voting rights litiga-
tion. The Senate Report says so explicit-
ly.,u This is to be expected; had the Su_
preme Court not adopted an intent require-
ment in Mobile a. Bolden, the statutory
amendment would have been unnecessary.
But congressional disapproval of a Su_
preme Court decision does not impair the
power of Congress to legislate a different
result, as long as Congress had that power
in the first place. The amendment to sec_
tion 2 does change the standard that voting
rights plaintiffs must meet. But those
who argue that this change is tantamount
to overruling Mobile a. Bolden miss the
point of that case. That case held that
direct violations of the substantive provi_
sions of the Fourteenth and Fifteenth
Amendments-that is, the provisions not
amenable to statutory change-are estab_
lished only when discriminatory purpose is
shown. The Court also held that the Vot_
ing Rights Act, as then written, did not
impose a different standard from that of
the Constitution. But nothing in Mobile a.
Bolden suggested that Congress could not
prohibit by statute what the Court had

25- "ln Bolden, a pluralitr. of rhe Supreme Courl
broke wirh precedcnl and subsiantiallv in-
creased the burden on plainriffs in votin! dis_
crimination cases by requiring proof of disirim-
inatory purpose. The Committee has concluded
that rhis intenr test places an unacceptably diffi-
cult burdel on plaintiffs. Ir diverrsiheludicial
injury [sic] from the crucial question of whether
minorities have equal access to the electoral
process to a historical question of individual
motives.

"ln our vierv, proof of discriminalorv pur-
posc should nol be a prerequisite to esribiish-
ing a violarion ol Secrion 2 of thc Voting
Rights Acr.'

1982 Senarc Rel,.,, lil 16, U.S.Codc Cong. &
Admin.Neus loll :- lql; see also id. a 3i_]i-.

?3I FEDEilAL &EPORTER,2d SERIES
I

declifred to forbid under the Constitutioir.s
City of Rome, decided the same day, up-
held legislation that prohibited discrimina_
tory effects. It may well be that Mobile a.
Bold.en should be understood as an invita_
tion by the Court to Congress to supple_
ment the Constitution's fundamental, self-
enforcing prohibition of purposeful discrim_
ination. Basic to a governmental system
resting on separation of powers is the pow-
er of Congress to go beyond the explicit
provisions of the Constitution and to take
steps that the courts are reluctant to take
in the absence of legislation. M,Culloch a.
Maryland, 1819, 1? U.S. (4 Wheat.) 816, 4
L.Ed. 579. The rule of Mobile a. Bold,en is
not that discrimination can be prohibited
only if it is purposeful. It is rather that
the eourts, acting without statutory guid-
ance, will go no further than to strike down
purposeful discrimination. It is for Con-
gress to decide how much further to go in
fulfilling the goals of the Constitution.
Congress has done so.

llll In enacting the results test of sec-
tion 2 Congress did not rely on, or even
mention, any power to interpret the Consti_
tution or to decide independently of the
judiciary that certain practices directly vio-
late the substantive provisions of the Con-
stitution. We therefore need not consider
any argument that Congress has such pow-
er, nor need we consider the limils on such
a power.z? Congress predicated its power
to amend section 2 squarely, and only, upon

25. Indeed, the plurality took pains to determine
whether section 2, as it then stood, added any_
thing to the plaintiffs' casc, even rhough tlie
lower courts had not separately considerid the
statutory cause of action. 446 U.S. at 6O_61, l0O
S.Ct. at 1495-1496 (Opinion of Stewart, J.).

27. Because Congress did not rely on llny pooirer
to interpret the Constitution, we need'not be-
come embroiled in the heated dispute concern-
ing the existence and extent of thai pou,er. See
Buchanan, Katzenbach u. Morgan and Congres_
siortal Enlorcement power llnder rhe Fourtienth
Amendment: A Study in Conceptual Con/ttsion,
17 Hous.L.Rer,. 69 (1979); Burt, Miranda and
litle !l: A Morganatic Marriage, 1969 Sup.Ct.
Rev. 81; Cohen, Congressional power to Inter-
pret Due Process and Equal protection,2T Stan.

i
i

:

trt t

the enf
port at
to sust
confliet
ed by t.

Constitr
prohibit
rights v
loch, s<

letter a

u.s. (4,
tutional
5 Cir.19
Treen, T

a9 (3 ju

The L
of the r
matter ,

Iarge el,

result ar

do not t
part VI
district r

was wht
ed discr
1178, 1l
trict co

that thr
County'r
for any
cal systr
ter unde
The cou
that the
County r

access t
from a I
many of
whit€s".
court als

L.Rev. (

Constitr"
199 (19
differen
the prol
b1'statu
tion 2, -r

I 84 (S"',

Act ..

* ',,-,...4, --



UNISED STATES V. MARENGO COUNTY 1563
crre u 73t r.zd tslct(tgel)

1982 Senate Re- blacks could overcorie voter apathy and

COM'N

1I
rp
E.
to.
te-
le
Jf-
im-

BIn

L

the enforcement power.

port at 3$43. Nothing more is necessary

to sustain the statute. Section 2 does not

conflict with or eontract 4ny right protect-

ed by the C,onstitution, and nothing in the

Constitution either explicitly or implicitly
prohibits a results standard for voting

rights violations. Under the test of M'Cul-
locle, section 2 is "consistdent] with the

letter and spirit of the constitution", 17

U.S. (4 Wheat.) at 421, and is clearly consti-

tutional. Accord Jones o. City of Lubbock,

5 Cir.1984, 727 F.2d 364,372-75; Major u'

Treen, 1983, E.D.La., 5?4 F.Supp' 325,342-
49 (3 judge court).

v.
The United States urges us, on the basis

of the record now before us, to hold as a

matter of law that Marengo County's at-

large election system has a discriminatory

result and violates amended section 2' We

do not do so, for the reasons explained in

part VI of this opinion' At the trial, the

district court's ultimate inquiry in this case

was whether the plaintiffs had demonstrat-

ed discriminatory intent. 469 F.Supp' at

11?8, 1180. Certain language in the dis-

trict court's opinion, however, indicates

that the court also held that Marengo

County's at{arge system is not responsibie

for any lack of minority access to the poiiti-

cal system and would therefore pass mus-

ter under a results or effects test as well'

The court stated that it was "conviuced

that the lack of black success in Marengo

County elections results not from a lack of
access to the political system, but rather

from a failure of the blacks to turn out as

many of their half of the voters as do the

whites". 469 F.Supp. at 1161 n' 7. The

court also stated that "it is clear that' if the

L.Rev.603 (1975); Cox, The Role of Congress in
Constiturional Determinations, 40 U'Cin'L'Rer"
199 (1971). Furthermore, there is a crucial
diffeience bets'een the Voting Rights Act and

the proposals to ban abortion or school bu-ting

b, si"t,ir", referred to b1'thc opponenls of sec-

tic,n l. -'er e.g., 1982 Senate Report at l7l n 23

l5i (SLrr-,;c'nimille(' Report). Thc Voting Righl'
Ac1 ir':. :tt,l conflict uith anv provision of thl

turn out their votes, they could Bucceed in /,
spite of polarization". /d. at 1163. These

findings are based on a misconception of
law and are clearly erroneous. To ensure

that upon remand this case is decided un-

der corect legal standards, we find it nec-

essary to explain in some detail how the

"results" test of section 2 is to be applied

to an allegation that an at-large system

unlawfully dilutes minority votes.

A.

Congress chose the language of the stat-

ute with great care. Congress wished to

eliminate any intent requirement from sec-

tion 2, and therefore changed the terms of

E Z(a't, 42 U.S.C.A. 5 1973(a) (West Supp'

1983), to forbid any praetice that "results

in" discrimination. Congress used the

word "results" to make clear that the sec-

tion 2 standard was not intended to be

equivalent to the "effects" test of the pre-

clearlnce provisions of section 5. 1982

Senate Report at 68. In seetion 2(b), 42

U.S.C.A. S 19?3(b) (West Supp.1983), r'iola-

tions of subsection (a) are defined in lan-

guage taken from White a. Regester,7973,

412 U.S. ?55, 93 S.Ct. 2332, 37 L.Ed.2d 314.

ln Wh,ite the Court stated that in a dilution

case the plaintiffs could not succeed merely

by showing that racial groups were not

represented in proportion to their voting
potential:

"The plaintiffs'burden is to produce evi-

dence supporting findings that the politi-

cal processes leading to nomination and

election were not equally open to partici-

pation b1- the group in question-that its

members had less opportunity than did

other resiCents jn the district to partici-

Constitution thal protects individual rights from
impairment by Congress and the states' The

onif interests that section 2 arguably impairs
arc the stales' interests in adopting electoral
priictices that have a discriminatory result'
SrrCh a statc interest is a contradiction in terms
\ irt: ol.ir.tiot.: explains elseu'hcre, section 2 is
:, urrc.rnslitutionat on states' rights grounds'

)w-

icit
&e
ke
o.

,4
ls

ed
rat

id-
m
{n-

tn
{1.

!e-

,n
ri-
re

F
e-
rJ

7-

tr
I
rll

E
v-
tc
E
o

r
F
,c

t-
f
t
d
t.

t.



1564 73I FEDERAL REPORTER,2d SERIES

pate in the political processes and to elect
legislators of their choice.,,

412 U.S. ar ?66, 93 S.Ct. at 2339. The
language of White, generalized to eover all
elections and elected officials, is the funda-
mental standard of section 2. But Con-
gress added a further provision to make
certain that proportional representation is
not required. As amended, seetion 2 now
reads:

"(a) No voting qualification or prerequi-
site tp voting or standard, practice, or
procedure shall be imposed or applied by
any State or political subdivision in a
manner which results in a denial or
abridgement of the right of any citizen of
the United States to vote on account of
race or color, or in eontravention of the
guarantees set forth in section
1973b(fx2) of this title, as provided in
subsection (b) of ttris section.
"(b) A violation of subsection (a) of this
section is established if, based on the
totality of circumstances, it is shown that
the political processes leading to nomina-
tion or election in the State or political

2E. The original starute read simpl],,
"No voting qualification or prerequisite to vot-
ing, or standard, practice, or procedure shall
be.imposed or applied by anr:Stare or poliri.
cal subdivision ro deny oi abiidge the riihr of
any citizen of the United Sratis to ,oi" o"
account of race or color.,,

Pub.L. No. 89-llO, S 2, 79 Srat.437,437 (1965).
The reference to 42 U.S.C. S 1973b(fXi) was
added in 1975, u,hen Congress expanded rhe
Voring Rights Acr to includtl minoriiy languagc
groups. Pub.L. No. 9zl-73, sec. 206, g9 Stai qfr,
4O2 (r97s).

29. As sratcd, thc language of secrion 2 is raken
lrom White v. Regester. ln Mobite r Bolden thcpluralitf inrerpreted Whire as requiring a show.
ing_of discriminarory intenl. 446 U.S. at 66,
68-70, 100 S.Ct. at 1499, 1.500_150l. Severai
legislators therefore argued that section 2 doei
conlain an intent requirement. See, e.g., Senate
Report ar lO4 n. 24, (Additional View"s of Sen.
Hatch); id. at 189-93 (Additional Views of Sen
Laxalt); id. ar 236-37 (Minorirv Views of Sen.
East); 128 Cong.Rec. H384/L45 (dailv ed. June
23, 1982) (sraremenl of Rep. Lungien). Thc
statute and the committec r"p.r.tr, hou,evcr,
could not be clearer. Afrcr ihe House hai
adopted a version of section 2 that somc legisla-
tors feared u,ould mandate proportional r-eprc,

subJivision are not equally open to p8r-
ticipation by members of a class of ;iti_
zens protected by subsection (a) of this
section in that its members have less
opportunity than other memberE of the
electorate to participate in the politieal
process and to elect representatives of
their choice. The extent to which mem-
bers of a protected class have been elect_
ed to office in the State or political subdi-
vision is one circumstance which may be
considered: Provided, That nothing in
this section establishes a right to have
members of a protected class elected in
numbers equal to their proportion in the
population."

42 U.S.C.A. 5 19?3 (West Supp.tggt).zs

tl2-l5l The language and hisbory of
the statute make clear several points.
First, discriminatory intent need not be
shown to establish a violation.ze Second,
atJarge elections are not prohibited per se,
nor does a laek of proportional representa-
tion automatically require a finding of a
violation. At the same time, however, the
absence of minority elected officials may
be considered as an indicium of violation,

s€ntation, Senator Dole, along u,ith Senators
Kennedy and Mathias, proposed the .,compro-
mise" language that was evcnlually enacied.
See 1982 Senale Reporr at 3-4, 75. Thar lan-
guagc explicitlv adopts a .,results,'test, and no-
whcrc calls for an1, consideration of intent.
The 

_Senate Report emphasizes in the strongest
possiblc terms that s€ction 2 contains no inlent
requiremenr. E.g., id. ar 2, 15_39, 67_6g; see
!1o id. ar 88 (Addirional Views of Senator
Thurmond); d at 19!195 (Additional Views
of Senator Dole). The floor debates are equally
clear on this point. &e, e-g., l2g Cong.Re;.
56930-31 (daily ed. June I7, li82) (statem-enr of
Sen. DeConcini); ,d 56941-44 (statemenr of
Sen. Mathias); ,d. S695G65 (debare concerning
proposed amendment to restore infent tesf; thI
Senate rejected this amendment gl_16); rZ
56995-96 (colloqul.of Sen. Kennedv ani Sen.
Stevens); id 57095 (dail1. ed. f"ne ti, ISAZ)
(statement of Sen. Kennedy); id. S7ll9 (state_
ment of Sen. Dole); id. 57l3g (sratement of Sen.
Robert Byrd); ,d. H3841 (daily ed. June 23,
1982) (statement of Rep. Sensenbrenner). ,4c-
cord Jones t. Cit1,o/ l,ubbock, ZZ7 ts.2d ar 37g_
80; l'ela-sque: r. Citt, of Abilene,,5 Cir.l9g4, 725
F.2d 1017.1011.

and an r

ut€ N/it
pation.e
large s,

would t
statute.
section :

groups I
on whet
ta parti
id. at3(

The S
proval t

3{1. The
languag
and Ma
Iack of
sidered,
rePreset
30-35;
mond);
Dole);
Grassle;
June 14

Moynih
(statenrr
June 17

Sen. Dr
1982) (s

(statem,
rhe Jud
have pr,
existenc
dence <

Report
may vio
ion.

31. "Clea
dispar
idents
atives
afford
slatinl
that l
provi<
ty's n(
distric
policy
cial r

ue7t,
363,1 ,

Whilc,
where
or at-
racial
m ir ror
thr pl

I; r'll i:



t.

UNITED STATES v. IIIARENGO COUNTY COM'N 1565
r Clte.r73l F2d 1546r(t9E/a)

F
lblit.
tsr
lr.l
ief
lB
lct-
ld'
ts
iiD
ft"
fln
).

oI
F.
t"
F.

t.
t-
b
F
,
f.

tt
I
I
I
I
I
I
I

and an atJarge system will violate the stat-
utc if it results in a denial of equal partici-
pation.3o C,ongress noted that some at-
large systems diluted black votes, and
would be vulnerable under the amended
statute. 1982 Senate Report at 6. Third,
section 2 focuses not on whether minority
groups receive adequate public services but
on whether minorities have an equal right
tn participale in the political process. See
id. at36.

The Senate Report gives particular ap-
proval to the jurisprudence developed by

iX). The principal purpos€ of the compromise
language offered by Senators Dole, Kennedy,
and Mathias was to make clear that although a

lack of proportional representation ma1'be con-
sidered, section 2 does not require proporlional
representation. See, e.9.,1982 Senate Reporl at
30-35; rd at 88 (Additional Views of Sen. Thur-
mond); id at 193-94 (Additional Views of Sen'
Dole); id at 196-99 (Additional Views of Sen'
Grassley); 128 Cong.Rec. 56717-18 (daill' ed.
June 14, 1982) (colloquy of Sen. Tower and Sen'
Moynihan); id. 56778 (daily ed. June 15, 1982)
(staremenr of Sen. Specter); id. s6962 (daily ed.
June t7, t982) (colloquy of Scn. Thurmond and
Sen. Dole); td STll&19 (daily ed. June 18,

1982) (statement of Sen. Thurmond); id. 37ll9
(statement of Sen. Dole). The Commitlee on
the Judiciary rejected amendments that u'ould
have prohibited the courts from considering the
exislence of an alJarge election system as evi-
dence of a section 2 violation. 1982 Senatc
Reporl at 4. It is clear that an atlarge system
may violate section 2. See part III of this opin-
ion.

31. "Clearly, it is nol enough to prove a mere
disparitl,betrveen the number of minoritl res-
idents and the number of minority represcnt-
atives. Where it is apparent that a minoritl is
afforded the opportunity to participate in the
slating of candidates to represent its area,
that the repres€ntatives slated and elected
provide representation responsive to minori-
ly's needs, and that the use of a multi-member
districting scheme is rooted in a strong stalc
policy divorced from the maintenance of ra-
cial discrimination, Whitcomb v. Chavis,
u97t, 4O3 U.S. 124, 9l S.Cl. 1858, 29 L.Ed.2d
363,] would require a holding of no dilution.
Whitcomb would not be controlling, however,
where the state policy favoring multi-member
or at-large districting schemes is rooted in
racial discrimination. Conversely, where a

minority can demonstrate a lack of access to
the process of slating candidates, the unrc-
sponsiveness of legislators to their particular'
ized intercsts, a lenuous state policy underly-
ing the preference for multi-member or at-
large districling, or that the existence of past

the former Fifth Cirtuit in cases immedi-

ately following White o. Regester, most 7
notably Zimrner a. McKeithen, 5 Cir.1973,
485 F.zd 1297 (en banc), affd per curi&m
sub nom. East Canoll Pa*h School
Board o. Marshall, 1976, 424 U.S. 636, 96

S.Ct. 1083, 47 L.Ed.zd 296. Zimmer listed
a number of factors to be considered in
dilution cases.sr The Senate Report re-
peats and elaborates on this list, character-
izing them as "typical factors".32 These

factors are to be weighed under a "totality

discrimination in general precludes the effec-
tive participation in the election system, a

strong casc is made. Such proof is enhanced
by a showing of the existence of large dis-
tricts, majority vote requirements, anti-single
shot voting provisions and the lack of provi-
sion for at-large candidates running from par-
ticular gcographical subdistricts. The fact of
dilution is established upon proof of the exis-
tence of an aggregatc of these factors. The
Supreme Court's recent pronouncement in
White t, Regester, supra, demonstrales, hou''
evcr, thal all these factors need not be proved
in order to obtain relief."

485 F.2d al 1305 (footnotes omitted).

32. "Iypical factors include:
t. the extent of an1'historl of official dis-

crimination in the state or political subdivi-
sion thal touched the right of the members of
the minoritl' group to register, to vote, or
olherwise to participate in thc democratic
process;

2. thc extent to which voting in thc elec-
tions of lhe state or political subdivision is
raciallv polarized;

3. thc cxtent to u,hich the state or political
subdivision has uscd unusualll' Iargc elcction
dislricls, majoritl vote requiremenls, anti-sin-
gle shot provisions, or olher voting practices
or proccdures that ma5'enhance the opportu-
nity for discriminalion against the minoritl'
group;

:1. if there is a candidate slating process,
u'hether thc members of the minoritv group
have been denied access lo thal process;

5. the extent to which members of the
minority group in the state or political subdi-
vision bcar the effects of discrimination in
such areas. as education, emplol'mcnt and
health, which hinder their abilitl to partici-
pate effeclively in the political process;

6. whether political campaigns have been
characterizcd b1' overt or subtle racial ap-
peals;

7. the extenl to rvhich members o[ thc
minority group havc becn elected to public
officc in thc jurisdiction.

"Additional factors that in soruc cases havc
had probative valuc as part of plaintiffs'eri-
dcncc to cstablish a violation are:

L_, - _. __



of the circumstances', approach.s

We organize our review of those findiirgs
in the same way. We emphasizri, however,
that the Zimmer factors serve a different
purpose in litigation under section 2 from
their purpose in constitutional litigation.

B.

In this section we list the factors con-
sidered by the district court and explain the
relevance, under amended section 2, of
these factors and of the district court's
findings. We take them in a somewhat
different order from that of the district
court because of the different emphasis
placed on different factors by the results
test.

Racially polarized uoting

116l The statute explicitly calls for a
"totality-of-the circumstances,, approach
and the Senate Report indicates that no
particular factor is an indispensable ele-
ment of a-dilution claim. 1g82 Senate Re-
port at 28-30. We therefore do not hold
that a dilution claim cannot be made out in
the absence of racially polarized voting.
But the legislative history indicates that
this factor will ordinarily be the keystone
of a dilution case.

To some extent the significance of racial-
ly polarized voting is obvious. ,,[I]n the
absence of racially polarized voting, black
candidates could not be denied office be-
cause they were blaek, and a case of ...
dilution could not be made.,, Nerctt tt.
Sides, 5 Cir.1978, 57t F.Zd 209, 228 n. t6,
cert. denied,1980, 446 U.S. 9b1, 100 S.Ct.

whether therc is a significant lack of re.
sponsiveness on the part of elected officials ro
thc particular.izcd necds of thc members of
the minority group.

whether the policy underlving the state or
political subdivision's use of suct voring qual-
ification, prerequisitc lo voring, o. .taildird,
practice or prclccdure is tenuous.

"While thesc enumeraled factors will ofren
be the most relevanl oncs in some cascs other
faclors u'ill bc indicarivc of the allegcd dilu.
tion."

1932 Senatc Rcport at 28-29 (lootnotc: ornit.
tcd). [].S.Codc Ct,;1". 6 Adnrin.Ncu. Jgil p1,.

731 FE'DERAL REPOFTER, 2d SERIES .
29L6,64 L.Ed.zd 807;,see olso Rogers o.
Lodsq, 458 U.S. at 62B-24, 102 S.Ct.:at
3279.' The importance of polarized votins

metb
oppor
in ek

"The
one \
racial
lar c<

they I

proce
bloc r
lenge
woul(

Id at 3i
ted), U.l
pp. 211-

This s

it elear
ereate r
dy it wl
indicatic
tern of

In the
that an r

of a par
that rac
We com

and Iool
electionr
without
dates. l
day has

34. Thc;
througt
returns.
[also] b
of ...I
districts
shot voi
for at-l;
geograp
lack of
Neyett,
City ol ,

36 (Higl

35, In ac
evidenc,
County
school I
whites,
district
County
F.Supp.

3279. of polarized voting
to a plaintiff's case also grows out of the
purposes of amended Bection 2 and the
limits placed upon its scotrie. The report of
the Senate Subcommittee on the Constitu-
tion argued that a results test would ereate
race-consciousness and racial polarization.
The Subcommittee also argued that the
results test made the unwarranted assump-
tions "that race is the predominant deter-
minant of political preference" and ,,that
the decisions of elected officials are pre-
dominantly determined by racial classifica-
tion". 1982 Senate Report at 14g-49, U.S.
Code Cong. & Admin.News 19g2, p. B2l.
The majority report responded:

"The Subcommittee Report elaims that
the results test assumes ,that race is the
predominant determinant of political
preference.' The Subcommittee Report
notes that in many cases racial bloc vot-
ing is not so monolithic, and that minori-
ty voters do receive substantial support
from white voters.
"That statement is correct, but misses
the point. It is true with respeet to most
communities, and in those communities it
u'ould be exceedingly difficult for ptain-
tiffs to shorv that they were effectively
excluded from fair access to the political
process under the results t€st.
"Unfortunately, however, there still are
some communities in our Nation where
racial politics do dominate the electoral
process.

"In the eontext of such racial bloc voting,
and other fact.ors, a particular election

2Od207. Like the Senatc Report, we do nor
prcclude the possibilirl, thal factors othcr rhan
th<rsc cnunteratcd, in Zimnter ma.r, be reler.anl in
an appropriate case.

33. "The cases demonstrare, and the Ctmmitlee
intends that thcre is no requirement that any
particular number of factors be proved, oi
that a majoritv of them point one way or the
olher."

1982 Scnare Report at 29. U.S.Code Cong. &
Admin.Ncus t9E2, p. 207.

--.*'& -



I
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I
t
I
|.

i
t
E

:
t

method can

opportunity
in elections.

UNITpD ST|TES v. MARENGO COI"INTY
r CltGrT3t P2d 13ae (r9&l)

coM'li

what reduced, polarization in the 19?8 elec-

tions.3{ Race is, as it has been since blacks

were allowed to vote, the main issue in

Marengo CountY Po)itics'3s

Past discrimination and its lingering ef-

fects

A history of discrimination is important

evidence of both discriminatory intent and

discriminatory results- A histpry of perva-

sive purposeful discrimination may provide

strong circumstantial evidence that the

present-day acts of elected officials are mo-

iivated by the same purpose, or by a desire

to perpetuate the effects of that discrimina-

tion. Rogers u. Lodge,458 U'S' aL 624, 102

S.Ct. at 32?9. Under the results test, the

inquirf is more direct: past discriminatjon

can severelf impair the present-day ability

of minorities to participate on an equal

footing in the political process' Past dis-

crimination may cause blacks to register or

vote in lower numbers than whites' Past

discrimination may also lead to present so-

cioeconomic disadvantages, which in turn

can reduce participation and influence in

political affairs.36 See Zimmer, 485 F'2d

at 1306.

The historical record of discrimination in

Marengo Countf is undisputed, and it has

588 F.2d 1134, cerr' denied, 1979,444 U'S 830'

l0O S.Ct. 57, 62 L.F;d.zd 38' ln that school

desegregation opinion, thc court expressed seri-

orrs iorib,. that lMarcngo Countl' u'hites u'ould

attend desegregared black majoritv schools'

454 F.Supp.1 931 n. 20, 934' Such attitudes

u." tt.o.rg circumstantial evidcncc that racc

continues to dominate politics in Marengo

Counl1'.

35. The district court assumcd that the history of
private discrimination in Marengo County is

irrel"t'ant to this casc. 469 F'Supp' at ll73 n'

32. But under the results standard of seclion 2'

Dervasive privale discrimination should be con'

sidered, because such discrimination can con-

triburc to lhc inabilitl of blacks to assert their

political influcncc and to participaltl 1O11{II 
in

public li[e . SL't' L'laior v- Trcor' 19E3' Ii D'La''

.57{ ir.S,-rr,r' 31.i. .3{i (3 .judgc ctrirr.t t.

i
1567

deny minority vohrs equal district court found eltremely strong evi-

to iarticipate meaningfully dence of polarized voting in elections be-

fore 19?8, and continuing, through some- /

t
!
t
I
I

I

"The results test makes no assumptions

one way or the other about the role of

racial political considerations in a particu-

lar community. If plaintiffs assert that

they are denied fair access to the political

pro.".., in part, because of the racial

tloc voting context within which the chal-

lenged election syst€m works, theY

would have to Prove it."

/d. at 3&34 (footnote and italicization omit-

ted), U.S.Code Cong. & Admin'News 1982'

pp. 2rr-12.

This section of the Senate Report makes

it clear that section 2 is intended not to
create race-conscious politics, but to reme-

dy it where it already exists' The surest

indication of race-conscious politics is a pat-

tern of racially polarized voting'

In the present case the defendants argue

that an elected official does not "have to be

of a particular race to adequately represent

that race". Brief for the Appellees at 30'

We completely agree with this statement

and look hopefully toward the day when

elections in Marengo County are conducted

without regard to the race of the candi-

dates. But the evidenee demonstrates that

day has not come, at least as of 19?8 The

34. The plaintiffs in this case proved polarization
through direct statistical analysis of the votc

."trr.n'r. Wc have stated that "[b]lr'c voting ma1

[also] be indicatcd by a shorving und.et Zimmer
ff ..-. p"tt discrimination in general "' largc

districts, majorily vote requiremcnts, anti-single

shol voting irovisions and thc lack of provision

for at-larg-e candidates running from particular
geographic subdistricts", or by "the consistenl

iu.t" "i 
success of qualified black candidates"'

Netctt, 571 F.Zd at 223 n' 18' See also Jones r''

City ol Lubboc,t, 5 Cir.l984, 730 F'2d 233' 233-

36 (Higginbotham, J., concurring)'

35. In addition to the strong statistical evidence'

evidence of racial polarization in Marengo
-o.rr,r1 

-ry be gleanld from, for examplc' thc

.chr.,i b.raid't pii-atl concern with placating

uhites, see 469 F.Supp. at 1170, and from tht'

disrricr court's observations in l*e r'' ltlarotgrt
Countl' Board ol Educatiott, 1978, S'D'Ala ' 45-l

F.Supp. 918, reld and remandcd' 5 Cir'1979'

1

I
I



1568

not ended even now. The county school

system remains under judicial supervision;
and in 1978, while this case was being
tried, the district court eharacterized the
Board of Education as "obdurately obsti-

nate" in its opposition to desegregation'
Lee a. Marengo County Board of Educa-
tion, L978, S.D.Ala., 454 F.Supp. 918, 931.

The judicial opinions recording the efforts
of the United States and private plaintiffs
to desegregate the public sehools of this
small rural county would fill a small vol-

ume.3? Federal eourts had to intervene to
end discrimination on Marengo County's
grand and petit juries. Black a. Curb, 5

Cir.19?0, 422 F.zd 656. And, of course, a

long series of lawsuits was necessary to
enforce the rights of blacks in Marengo
County to vote and run as candidates.ss

This is not to mention cases of statewide
application too numerous to list completely.
For example, in Alabama State Teachers

Ass'n i. Lou'ndes County Board of Edu-
catiott, 1968, M.D.Ala., 289 F.Supp. 300 (3
judge court) the court struck down a series

of statutes that denied tenure to teachers

in predominantly black counties, including
Marengo. The district court opinion lists
many other cases of statewide application'
469 F.Supp. at 1772-73.

The district court acknowledged this his-

tory of discrimination, but then stated that
the plaintiffs had "adduced very little evi-

dence" as to "whether such past discrimi-
nation has in any way precluded effective
present participation by blacks", id. at
11?3, and concluded that the "present lin-
gering effects of past discrimination

37. See lce t Macon County Board ol Education,
M.D.Ala., 267 F.Supp. 458 (3 judge courr.), alf 'd
ment. per cuiam sub nom. Wallace v. United
States, 1967,389 U.S. 215, 88 S.Ct. 415, l9
L.Ed.2d 422', lze v. Macon County Board ol
Education, 5 Cir.l97l, 443 F.zd 1367; Lee t''.

Macon County Board of Education, 5 Cir.l972,
465 F.2d 369; l*e v. Marengo County Board of
Edttcariort, 1978, S.D.Ala., 454 F.Supp. 918, rev'd
and rentunCcd, 5 Cir.l979, 588 F.2d 1131, cert.
dcnit'd 1q79, rl{.1 U.S. 830, loO S.Ct. 57, 62

L.F,(l.:t ' :! /-cs t'. l.indctt Cit)^ School System, 3
Cir.l , l7 l:.2ri 3S3: Lec t. Dcntopolis Citl'
Scl;,,.,' r,.icrr, 5 Cir.l977, 557 F.2d 1O53, cert.
dcn:... ' ;, .l-3.1 U.S. 1014, 98 S.Ct. 729, 54

?3T FEDERAL.REPORTER, 2d SERIES:
amohg blacks ... do not manifest them'
selves so eompletely in political matters as

they do in other everyday affairs", rd. at
1180.

The district court concluded that past

discrimination does not substantially impair
the ability of blacks to participate in the
political process. The record fails to sup
port this conclusion. Because blacks are

poorer and less educated they have less

political influence than whites. Blacks still
register and vote in significantly lower
numbers than whites. The district court
was well aware of this fact but attributed
the absence of elected black officials to
"voter apathy" and "a failure of blacks to

turn out their votes". Id. at 1163. Rea-

soning that as of i978 there were an esti'
mated ?,040 black voters, and that the win-

ners of most previous elections had re-

ceived 5,000 - 6,000 votes, the court specu-

lated that "if the blacks could overcome

voter apathy and turn out their votes, they

could succeed in spite of polarization". Id-

Both Congress and the courts have re-
jected efforts to blame reduced black par-

ticipation on "apathy". The Senate Report

states,

"The courts have recognized that dispro-
portionate educational[,] employment, in-

come level[,] and living conditions arising

from past discrimination tend to depress

minority political participation
Where these conditions are shown, and

where the level of black participation is

depressed, plaintiffs need not prove any

further causal nexus between their dispa-

L.Ed.2d 758. The record also conlains more
than a dozen unpublished opinions in the school
desegregation case. Record 58, 6l-194.

3t. See l\nited States r. Ebberry,'S.D.Aia', No'
3791-45; United States v. Marengo County, S.D.

Ala., No. 1567; Ilnited States v. Executive Com'
miltee ol the Democratic Party of Greene County,

1966, S.D.Ala., 254 F.Supp. 543; Hadnott r'.

Amos, r97O, M.D.Ala., 320 F.Supp' 107 (3 judge

court), aff'd mem., 1971,401 U.S. 968, 9l S.Ct.

1189, 28 L.Ed.2d 318, and 1972, 4O5 U.S. 1035,

92 S.Ct. 1304, 31 L.Ed.2d 576.

rate
Preg$r

f982 Se

Major r

325, 35:

This
the dist
Board
Cir.19?:
nied, I
L.Ed.2d
redistri,
commut
the fivr
held thr
opportu
districtr
voting
Court ,

It held
dants t

role in
dischar
mer po
place a

Id.

tlTl
that wl
socioec

sulting
was in
plainti{
eausinl
rather
to sho

Cross
881-82
merr 4
Geo.W
tainly
ca-se tt
black '

eonnec

39. Ti
authc
polar
sister
is a r

CASC,

dalc'
\\'otl
t. ;

'- ,,,,''_.aiE



\

. UNITED STAiES V. MARENGO COUNTY.COM'N
Clte er 731 F2d l!'45 (19&l)

:'
1t6e

.rate socio-economic ltatus and the de' Accesslo the slating proEess

p""r."a level ef political participation'" In jurisdictions where ihu" i' an influen-

1982 Senate Report at 29 n. 114. See also tial official or unofficial slating organiza- /
iiiri i. rrrrn) tggg, E'D'La', 5?4 F'supp' tion, the ability of minorities to participate

gzi, gst n' 3t' in that sllting organization and to reeeive

This Court [2,r rejected the speculation its endorsement may be of paramount im-

the district courc offered' ln Kirksey u' portance' ln White a' Regester' for exam-

Board of Superuisors of Hind's County'.S ple' the Supreme Court found it significant

Cir.19??, 554 F.zd fSg ien banc), cert' d'e' ihat only two blacks had ever been en-

nied, 1977,434 U.S. SOb, SS S.Ct' SlZ, Sa dorsed by the Dallas County Committee for

L.Ed.2d454,thedistrictcourtapprovedaResponsibleGovernment,..awhite.domi-
redistricting plan thaf cut up tie black- nated organization that is in effective con-

community and left it a minoriiy in each of trol of Democratic Party candidate slating

the five voting districts. The dlstrict court in Dallas county". 412 u.s' at ?66-67, 93

held that this plan gave blacks a "realistic s.ct. at 2339-40. Apparently, there was no

"pp""trrit,,, 
of *iinlng elections in-two similar organization in Marengo County'

districls where blacks riere 48-497t of the The district court did not directly address

voting age population' Id' aL 150' The the question whether there was a more

c"rii 
"t"eppeals 

rejected this approach' informal slating process that ensured a

It held: "The responsibility of the defen- white candidate for every office' In the

dants to permit minoritV voters a proper broadest sense of the term "access to slat-

role in dlmoeratic political life must be ing"-that is' the ability to run for office-
discharged by stronger stuff than gossa- there does not appear to have been any

mer poJsibilities of all variables falling into substantial formal or informal impediment

place and leaning in the same direction." to black candidacies. We do note, however,

Id. that in 19?8 only ? of the 34 members of

tl7]TheFifthCircuitalsoestab]ishedtheMarengoCountyDemocratieExecutive
that when there is clear evidence of present Committee were black' 469 F'Supp' at

socioeconomic or political disadvantage re 1162 n' 10'40

sulting from past discrimination, as there

was in this case, the burden is not on the Election practices

,J1:ffJ'"fr"i.:T"#l*T1"*;il1#5i: u8r rwo erection practices exacerbated

ratherls on those who denl:the causar nexus 
i3; i:H:l'ff ;tliT:,iiliil:il':h :l:

to show that the cause is sonrething else'

cross o. Bo.rtcr,s cir.19?9,604 F'2d 8?5, failure of the registrar to abide by state

881-82; Kirkseg,s54 F.zd at 14446; Zint- law' The district court stated'

mer,485F.2dat1306;secalsoHartman,50.,onthepollofficialappointmentques.
Geo.Wash.L.Rev. al 7Zi-29' There was cer- tion' the plaintiffs allege that the ap-

tainlynosubstantialer,idenceinthepresentpointmentsmadebytheCountyAppoint.
case to support "n "tt 

lurtion of depressed ing Authoritv have been racially motivat-

black politicat p".ti.ipution to "apathl"'-un- ed and tend toward tokenism' They con-

connected *itr, ntt i*t discrimination'm tend that itris'imPortant to have black

3g.ThcdistricrcourtcitcdNcr,clrr,.Sirjesasfromparticipatinginthepoliticalproccss.5Tl--uutfro.itl' for its conclusion that apathl" not F'2d at 227 '

oolarized voting, was rcsponsible f()r th( con'

it".il", rltr"."'J ui"rtl'l ttlin cltction Tlrc'" tlo' Minori*'candidatcs mal also hc denicd cf-

is a critical aiff"."n..]'t.]i*""n ,t".ri"r, and tl:.i' 
--i".i;t" 

acccss to thc' slating proccss if racial

casc. ho*,c'er: i" 
^"t,r", 

i.i 7 black.can.i, discrirninalion prevcnts them from actively

d:*., r'o, in thc tsi8 "t".tion, 
aliltoush n" '' sc'ci.ing rvllitc voles and support' s:'P:'!.fo:^':'

rrt,r, irr I971. 571 li.2(l ar 2'l-1. lt \\'.r\ lhtr''-li'r ii,t nj Y'rr, Helena, I Cir.l982, 675 F'2d 201'

far lt<tm ttbvious in 1976' lvhcn tlr' cirs! \" l6q-10'
,,li.ci lhnr thc at-largc srslcm p:'c\(tltc(i i)i'



r5zg ?Br FEDERAL REpoRTqR, zd bpmss Il
I

poll officials. so that black votbrs will
have mdre eonfidence in the ,electoial
system. The evidence before the Court
reflects that the assertions of the plain-
tiffs are to a large extent true ....
[O]ne black was appointed at each polling
place for the 1970 election, and there is
no evidence that this number has in-
creased to any great extent."

469 F.Supp. at 1161 (footnote omitted).{t
The court concluded, however, "that this
inequity is not of such magnitude as to
deprive blacks of access to the political
process." Id. at 1162 (footnote omitted).

The plaintiffs also showed that the Coun-
ty Board of Registrars was open only two
days a month except in election years;
that, contrary to state law, the Board of
Registrars met only in Linden, the county
seat, and failed to visit outlying areas to
register rural voters a2; and that the Board
had never acted on the offer of a black,
Earnest Palmer, to serve as a deputy regis-
trar.a3 The court said it did not see how
these polieies discriminated against blacks.
Id. at 1164.

These policies, however, unquestionably
discriminated against blacks because fewer
blacks were registered. If blacks are to
take their rightful place as equal partici-
pants in the political process, affirmative
efforts were and are necessary to register
voters and to assist those who need assist-
ance.la By holding short hours the Board
made it harder for unregistered voters,
more of whom are black than white, to

41. Under Ala.Code S l7-6-l (197.s & Supp.l983)
poll officials are appoinred by a Countl, Ap-
pointing Authority comprised of the probate
judge, sheriff, and circuit court clerk.

42. Until 1978, the board of registrars was re-
quired to "visit each precinct at least once and
more often if necessary between October I and
December 3l of each odd-numbered year to
make a complete registration of all persons enti-
tled to register, and shall remain there at least
one half a day". Ala.Code g 17-4-l (t975) (re-
pealed by Act of April 27, 1978, No. 584, g 34,
1978 Ala.Acrs 667, 677). Under rhe neu. lau,,
Ala.Code S 17-4-156(f) (Supp.t983), the board
is authorized to hold spccial registration ses-
sions away from the courthouse. 

-

register. By meeting only in Linden the
Bdard was less accesslble to eligible rural
voterl, who were more black than white.
By having few black poll officials and
spurning the voluntary offer of a black
citizen to serve as a registrar, county offi-
cials impaired black aecess to the political
system and the confidence of blacks in the
system's openness. See United States a.

Palmer, 5 Cir.1966, 356 F.2d 951, 952.

Enhancing factors
I19] A vote dilution case "is enhanced

by a showing of the existence of large
districts, majority vote requirements, anti-
single shot voting provisions and the lack
of provision for at-large candidates running
from particular geographical subdistricts".
Zim.mer,485 F.zd at 1305. Marengo Coun-
ty has a majority vote requirement in the
Democratic Party primary, although not in
the general election. 469 F.Supp. at 1174.
Candidates for the School Board and Coun-
ty Commission run for specific posts, based
on residency districts except for the presid-
ing officers' positions. Marengo County
has a small population but a large, rural
area, and accordingly the county-wide cam-
paign for an at-large position is expensive.
Since blacks earn, on the average, less than
half of the amount that whites earn, the
district court correctly found that the size
of the county eontributes to dilution. On
balance, the features of the electoral sys-
tem operate to submerge minority inter-
ests, although they do provide for some
geographical diversity.as This geographic
diversity, however, does not operate to re-

43. Under Ala.Code S 17-4-158 (Supp.1983), en-
acted in 1978, the board of registrars may ap-
point deputy registrars to serve without com-
pensation.

44. See generally Note, Eradicating Racial Db-
cimination in Voter Regbtration: Rights and
Remedies Under the Voting Rights A_ct Amend-
ments ol 1982, 52 Fordham L.nev.'gg (tSA:).

45, Marengo County has no anri-single-shor law.
When voters can cast more than one vote in the
same race, an anti.single-shot provision can
force minority voters 10 vore for majoritl'candi,
dates. Aer.,ell, 571 F.2d at 217 n. 10. As rhe
districl court corrccth fr,und here, such a pror.i-

duce rz,
jority et
residene

Racial t

t20I
overt (n

little cn
that bla
seventie
prevaler
bigoted
ionable,
harder
Deaelop
ton He'.

1290, ce

s.ct. 75

ing efft
with us
sons Co

a resultr
discrimi
37; Mo.
Evidenc
if it is

West Ht
absence
plaintifl
of sectir

State p

121,2"
state pr

for rea
that tht
discrimi
a tenuor
is circur
is moti'
See Rol
Cir.1974
F.2d at
importa
consiste

sion is
cific p<

- ...,-=d.



\
I(
lUNITED StltOS v. MARENGO COUNTY COM'N'

CltcsT3l Fzd l5a6 (t9&r)
riszr

dtce raeiol dilution, blcause dhe white ma- raeielly neutral policy would not negate a

jority still eleets whites to represpnt all the plaintiff's showing tllrough other faetors
te
rl
I.
$
*
tt
rl
le
o.

d
i€
i
k
3

l-
e
n

t.

t-

il
l-

Y

I

residency districts.{6

Racial appeals

t20l The court found no evidence of
overt or subtle racial appeals, and placed

little credence in evidence offered to show

that black voters were intimidated. In the
seventies overt political racism was less

prevalent than in the sixties. "As overtly
bigoted behavior has become more unfash-
ionable, evidence of intent has become

harder to find." Metropolitan Housing
Deaelopment Corp. a. Village of Arling-
ton Heights, 7 Cir.L977, 558 F.2d 1283,

L290, cert. denied,1978, 434 U.S. 1025, 98

S.Ct. ?52, 54 L.Ed.2d 772. BUL the continu-
ing effects of past discrimination are still
with us. This is one of the prineipal rea-

sons Congress found it necessary to adopt
a results test to root out the effects of past

discrimination. 1982 Senate Report at 3G-

31; Major a. Treen, 574 F.Supp. at 346'

Evidence of racism can be very significant
if it is present. See Perkins a. Citg of
West Helena, 675 F.zd at 216-17. But its
absence should not weigh heavily against a

plaintiff proceeding under the results test
of section 2.

State policy

I2l,22l Under an intent test, a strong
state policy in favor of atJarge elections,

for reasons other than race, is evidence

that the at-large system does not have a

discriminatory intent. On the other hand,

a tenuous explanation for at-large elections

is circumstantial evidence that the system
is motivated by discriminatory purposes.

See Robinson a. Commissioners Court, 5

Cir.1974, 505 F.2d 674, 680; Zimmer, 485

F.2d at 1305, 1307. State policy is less

important under the results test: "even a

consistently applied practice premised on a

sion is irrelevant when candidates run for spc-

cific positions. 469 F.Supp. at 1175.

that the challenged praetice denies minori- ,
ties fair access to the process". 1982 Sen-

ate Report at 29 n. 117, U.S.Code Cong. &
Admin.News 1982, p. 201 , n. ll7. But
state poliey is still relevant insofar as in-

tent is relevant to result: evidence that a

voting device was intended to discriminate
is circumstantial evidence that the device

has a discriminatory result. See Major e.

Treen, 574 F.Supp. at 354-55. Moreover,
the tenuousness of the justification for a

state policy may indicate that the policy is
unfair. Hendrir o. Joseph, 5 Cir.1977, 559

F.2d 1265, 1269-70.

The district court found that there was

no strong state poliey either for or against
at-large elections. The court erroneousll'
stated that Marengo County's at-large pro-

visions were adopted "in 1923 and 1935

when blacks had been effectively disen-

franchised" and therefore those provisions

could not have been motivated by race. In
fact, at-large elections were adopted in

1955, just after the Supreme Court decided

Brou'n o. Board of Education, 1954,347
u.s. 483, 74 S.Cr. 686, 98 L.Ed. 873. It is

fair to infer that atJarge elections were

enacted in direct response to the prospect
of increased black political participation.

Szcccss of ntinority candidatcs

t23l If members of the minority group
have not been elected to public office, it is

of course evidence of vote dilution. Section

2(b) explicitly permits the court to consider
"[t]he extent to which members of a pro-

tected class have been elected", but in the

next breath warns that the statute does not

establish a right to proportional representa-

tion. 42 Ll.S.C.A. !i 1973(b) (West Supp.

1983). The Senate Report states that this
disclaimer was intended to incorporate cer-

tain judicial precedents rejecting racial quo-

tas. 1982 Senate Report at 30-31. l,ess

than proportional representation clearlv

rl5. Thc exception is Moscs Lofton, a black uhr,
was appointed to rcprcscnl thc southcast districl
on the School Board.

I
!

)

I I't
r.

I

I

I

i
I

I
{,i



t572 73I FEDERAL REPORTE& ZA SERIES

does not automatically violate ,".tion 2.
But it is equally clear that the election of
one or a small number of minority elected
officials will not compel a finding of no
dilution. Id. at Zg n. 115. ,,Such 

success
might, on occasion, be attributable to the
work of politieians, who, apprehending that
tlre support of a black candidate *orld b"
politically expedient, campaign to insure his
election. Or such success might be attrib-
utable to political support motivated by dif-
ferent considerations-namely that election
of a black candidate will thwart successful
challenges to electoral schemes on dilution
grounds." Zimmer,485 F.2d aL L807. See
also National Association for the Ad,_
uancement of Colored people t. Gadsden
County School Boord., 1l Cir.19g2, 691
F.2d 978, 983.

The record shows, as of 19?g, that no
black had ever been eleeted to either the
School Board or the Countl, Commission.
One had been appointed tn the school
board, but the warning of Zimmer, quoted
above, is particularly appropriate to such
an appointment. The appointment of one
black to the School Board, while it may
have demonstrated an increased willinj_
ness of Marengo County whites to allow
black individuals to participate, certainlv
does nor demonstrate tne abitity 

"i lf".ivoters to elect officials.{z One other black
was elected, to the post of County Coroner.
These were the only two blacks to take
office despite numerous black candidacies.
This evidence can be interpreted only as
strong evidenee of dilution. The district
court's eonclusion that this nearll, complete
lack of success did not indicate a laek of
effective access to the system, 469 F.Supp.
at 1161, is clearly erroneous.

Unresponsircness

Under an intent test the responsiveness
of elected officials to minority needs is an
important factor. If the officials are unre_

{7.- Neirhc.r rr.ould his subsr.qucnr unopposed re.
elt'clion.

48. "ll.,ri,. rr,, should ni:iir:li11 I itr,.,-,r. tr, offcr
ct irlcr,: l ,,, ,nr"r1r,,,.,.i,1.r:r.ss. 1i.tcr: thc defend-

sponsive it suggests that they are willing
to discriminate against minorities end neei
not be accountable to minority interests.

logers u. Lodge,4b8 U.S. at 625 & n. 9, 102
S.Ct. at B28o & n. 9.

Unresponsiveness is considerably less im_
portant under the results test. A panel of
this Court has concluded that responsive_
ness "has nothing to do with [discriminato_
ryl impact". NAACP a. Gadsden County,
691 F.2d at 988. Other authorities suggeli
that unresponsiveness does have some iele-
vance in a section 2 case. If minority
needs are not served it is evidence thai
minorities have insufficient political influ_
ence to ensure that their desires are con_

:11.:d by those in power. See Hendri^r,
559 F.zd at 1268-69; Kirksey, b5  F.2d ai
743-46. But unresponsiveness is of limited
importance under section 2 for two rea-
sons. First, section 2 protects the access
of minorities not simply to the fruits of
government but to partieipation in the pro
eess itself. Accordingll,, evidence that ;ffi_
cials meet the functional needs of minoritv
citizens does not overcome evidence thai
the minorities are excluded from political
participation. Seeond, responsiveness is a
highly subjective matter, and this subjectiv_
itv is at odds with the emphasis of section 2
on objective factors. The Senate Report
states that "defendanls, proof of somq re-
sponsiveness would not negate plaintiff,s
showing by other, more objective factors
enumerated here that minority voters
nevertheless were shut out of equal aceess
to the political process',. 19g2 Senate Re_
port at 29 n. 116, U.S.Code Cong. & Admin.
News 1982, p.207, n. 116. The authors of
the Senate Report apparently eontemplated
that unresponsiveness would be reievant
only if the plaintiff ehose to make it so,r8
and that although a showing of unrebpon-
siveness might have some probative value
a showing of responsiveness would have
very little.

ant could offcr rt.bLrlt:il.\jdcnce of its respon_
sivcness." 1982 St.l.riL Iitppri at l9 n. ll6,
U,S.Code Cong. & ,\ri.. . ,.r.s 19S2, p. 2Ol, n.
I 16.

Thr
neSS i

was
ness,,

heavil
any e
dence.

ing i

Board

-weft
interes
if blac
prtcesl
its stat
itate b
The Scl
opposit
faculty.
trict eo

the Cor
be to
whites"
court's
case re'
ty towi
the Bor

school t
engo C,

F.Supp.
not find
because
siveness

impaet o

469 tr'.Su

ther tha
WAS UnI
the Unit
id. at 1l
regation
ceives nc,

munity tl
Lv", id. t

These
massive
white edr

49. Althot
Registrar
Board's r
portar,' l

7:11' ..,1



I

miITED STATES v. MARENGO COUNTY COM'N
r Ctrcu7Jl F2d tltl6 (l9Ea)

+

1573

F
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F
F
tf

F

i
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Itt
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i
t

The district court discussed rcponsive- irrefutable evidenee of the effeets of the
ness extensivell', urd eoncluded that there segregated school system on generations
was no "substentid lack of responsive- of Marengo County's black citizens. The
ness". This conclusion would not weigh notion that black children might prnefer

heavily against a finding of dilution, and in segregated schools, faculties, and bus
any event it is not borne out by the evi- routes has been rejected since Brown tt.

dence. fire reeord shows that the govern- Board of Education The court's empha-

ing authorities-<specially the School sis on the present equality of education in

Board and the Board of Resistrars.e the schools is misplaced. The Voting

-weFe considerab\- less responsive to black Rights Act is concerned with political rc-

interests tlran one would expect them to be. sponsiveness. While the Board may finally

if blacks had equal ac.os to the politicai be providing equal education it has done so

prlcess. The failure of tlre regbtrar L meet only after three decades of resistance, and

its statutory duties and affirmltivety to faeil- only because the courts ordered it to do so'

itate brack registration h* b*, ;";il. Such a Board can hardly be considered

The schoor Board has been intransisent in its 'responsive" to the interesLs of blacks in

opposibon to integration ;;rJ,;?;;;';;; participating in the affairs of the school

facurty. 46e FSupp J ';;;il-*; il Y::::^:'"::^',1::L',^^"0""rs 
rather than

triet court noted tlnt tlre "main objective of courtroom aoversarles'

the County Board appears to the Court to The County Commission has a better

be to make the s1'stem as palatable to record. The plaintiffs did not make a

whites,, [sic]. 469 F.Supp. "i ttZO. The strong showing of functional unresponsive-

court's 19?8 opinion in ii,e desegregation ness' but the functions of a county commis-

case reveals the Board's continuirig hostili- sion' in general' "do not easily lend them-

ty toward integration. to the extent that selves to unresponsive represenLation"'

the Board was stil "*.r|* a L"* zimmer' 485 F'2d at 1306 n' 26' The dis-

schoor bus ,oot". ""gr"g;;:;. ;rr;. i;; trict court did not discuss the political

engo county Boord ,i-ta"r"i;"","),u responsiveness of the commission' The

F.supp. at 9B?. suu. tt,. dt.;;;;, ;; best evidence of this is the raciallv polar-

not find rhe Schoor B";;i.,;;;;";;J ized voting patterns Responsiveness is an

because it did not .,iu"rliot ;;;;;;;;- inherentlv subjective factor and the best

siveness ro brack,*d. ;; ;;t ;"...ffi: ['"",,n,ilJi,:.lTi[,:1ffi:';:: rr]:
impact on equal educational opportunities", fore strong evidence that the electe6 offi_
469 F'Supp' at 1170' The court stated fur- cials are not meeting the political needs of
ther that the onll' unresponsiveness shown Marengo County blacks. See NAACp t.
u'as unresponsiveness "to the efforts of Gadsden Courtty, 691 F.zd at gg3.
the United States Department of Justice",
id. at 11?g, whose "faciallv neutral deseg- The district court's findings on unrespon-

regation poliel' . in nruny: ;";;; r; siveness are clearlv errone()us' we find

ceives no greater.rppo.i-in-it;-;;;k ."; solid evidence of unresponsiveness on the

munitl'than it does in ;" *;;"-;;;;;i part of the School Board and the Regis-

ty,,, id. at r1?0. [1::;,'::"'.''51'"#;:,h:rtH:1ff[
the plaintiffs'case, but it does not harm it

These conclusions cannot stand. The either. To the extent that the evidence on
massive differentials between black and unresponsiveness is relevant, it weighs in
r.r'hite educational and literacv levels are favor of a finding of dilution.

49. Although the composition of the Board of sihlt for \()tcr rcgistration. Ils rrnrtsponsivc,
Registrars is not challenged in this litigation, thc nL':( r'():rtribulcs sigrrili.a:rilr rr, tht- inability of
Board's unresponsiveness to black ncc'ds is rn; hllr, i.r- t,, nf,rti('rpatl! ctlr:iili rn thr political pro-
portant because the Board is direllv rcspor, .('..

L--- - --a



- 'i ,'-'
1574 73I FEDERAL

l\
,L

l24l The ultimate conelusion under gec-

tion 2, as under Zimmer, is "b6sed on the
totality of circumstances". 42 U.S.C.A.
S 1973(b) (West Supp.l983). No formula
for aggregating the factors applies in ev-
ery case. Some authorities suggest that a
finding of discriminatory result is
compelled when the plaintiffs show racially
polarized voting combined with an absence
of minority elected officials. See NAACP
o. Gadsden County, 691 F.zd at 982-83;
Note, The Constitutional Significance of
the Discriminatory Effects of At-Large
Elections, 91 Yale L.J. 974, 998 (1982).

Others have argued that discriminatory ef-
fect is irrebutably established when these
factors are combined with a history of dis-
crimination and present socioeeonomic dis-
parities between the races. See Blacks
United for Lasting Leadership, Inc. a.

City of Shreaeport, 5 Cir.1978, 5?1 F.2d
248, 257 (Wisdom, J., dissenting); Hart-
man, 50.Geo.Wash.L.Rev. at 729-32. Cer-
tainly, when the plaintiffs establish these
factors and no other factors weigh strongly
against the plaintiffs' case, dilution must
be found.

In this case the district court found that
"apathy", not the at-large election system,
was responsible for the lack of black suc-
cess at the polls. This explanation is un-
supported by the evidence and the control-
ling law. The evidence reveals racially po-
larized voting; a nearly complete absence
of black elected officials; a history of per-
vasive racial discrimination that has left
Marengo County blacks economically, edu-
cationally, socially, and politically disadvan-
taged; polling practices that have impaired
the ability of blacks to register and partici-
pate actively in the electoral process; elec-
tion features that enhance the opportunity
for dilution; and considerable unrespon-
siveness on the part of some public bodies.

50. In fact, it appcars that the numerical strength
r,f the black vote has continued to decline. In
tl-,c 1980 ccnsus, Marengo County had a total
;,rrlrulation c:f 25,O47. Of this number 13,346
lir.l',, ) ucrc blacl and 11,663 (46.60lo) were

REPOBTER,2d SERIES -
Some of the factors qre neutral, but no$h-
ing substantial weighs in favor of the. de-
fendlnts. The rccord compels a finding
that, as of the time of trial, Marengo Coun-
ty's at-large system resulted in an abridge.
ment of black eitizens' o'pportunity to par-
tieipate in the political process and to elect
representatives of their choice.

vI.
1251 We hold that the record shows a

clear violation of the results test adopted
by Congress in section 2 of the Voting
Rights Act. The government urges us to
render judgment and remand for the devis-
ing of a remedy. We must, however, con-
sider the convoluted procedural course this
case has taken. It has been more than five
years since this case was tried. The ulti-
mate legal theory of the plaintiffs' case has
changed, from "intent" to "results", al-
though the same evidence is relevant to
both theories. Conditions may have
changed in Marengo County, and to devise
an appropriate remedy the district court
will need to evaluate conditions now rather
than the conditions prevailing in 19?8.

We note, however, that despite our re-
peated requests at oral argument, counsel
for the defendants did not provide this
Court with any sign that u'ould indieate
that the political opportunities for Marengo
County blacks have improved since 19?8.s0

We do not, by our remand, intend that this
case experience more of the procedural de-

Iays that have plagued it in the past. Ac-
cordingly, on remand we suggest to the
district court that it not conduct a retrial of
any issues already tried and reviewed by
this Court. The purpose of the remand is

to allow the parties to update the record
and to supplement the record with evidence
that might tend to affect our ?inaing of
discriminatory results. In view of the evi-

white. Of a total voting agc population of 16,.
534,8,460 (51.2o/o) were r.r'hitc and 8,04.5 (48.7%)
were black. U.S. Burcau of lhe Census, Ceneral
Population Characteristics, Alabanta p. 2-141,
Table 45 (1980).

denep
bear t
cumsti
make ,

in l97r
court !

a hear
findinl
ably I
manda
found,
approp
date ot

We'
that t}
inato4
trict c,

that I\

systen
asoft
further
opinior

SMITl
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STONE v. SIITH, KLINE & FRDNCH LABORATOruES
' CltcuT3t Frd t37s (ttSa)

{ 1575

dence already in the record, the defendants agqinst manufactureq,, of the drug. The
bear the burden of establishing tlat cir- Unlted States District Court for the North-
cumstanees bave changed sufliciently to ern
make our finding of discriminatory rrsults Jr.,
in 1978 inapplicable in 1984. The district ment for the manufaeturer and the con-
court shall entertain any evidence, conduct sumer'appealed. The Court of Appeals
a hearing if necessary, and render new certified questions to the Alabama Su-
findings, under section 2, within a reason- preme Court. The questions were answer-
ably prompt time from issuance of our ed, 447 so.2d 1801. The court of Appeals
mandate. If a continuing violation is held that, in view of the Alabama Supr".e
found, the court, of course, will devise an Court's affirmative answer to certified
appropriate remedy, bearing in mind the question "If the adequacy of the warning
date of the 1984 elections. determines whether an unavoidably unsafe

We VACATE the distriet court's finding prescription drug is unreasonably danger-
that the plaintiffs did not establish discrim- ous, is an adequate warning to the pre-
inatory intent.s! We REVERSE the dis- scribing physician, but not to the ultimat€
trict court's judgment insofar as it holds consumer, sufficient as a matter of law,"
that Marengo County's at-large election the summary judgment would be affirmed.

District of Alabima, Sam C. Pointer,
Chief Judge, granted summary judg- /

system did not have a discriminatory result
as of the time of trial. We REMAND for
further proceedings in accordance with this
opinion.

Amy STONE and Glenn Stone,
Plai ntiffs- A ppellants,

Y.

SMITH, KLINE & FRENCH LABORA-
TORIES, et al.. Defendants-Appellees.

No. 82-7232.

United Stat€s Court of Appeals,
Eleventh Circuit.

May 14, 1984.

Consumer of prescription drug
brought diversitr, products liability action

51. Ser Dc;lc 10.

Affirmed.

Drugs and Narcotics el8
In view of affirmative answer by Ala-

bama Supreme Court, in Stone a. Smit.h
Kline & French Laboratories, 44T So.2d
1301, to certified question "if the adequacy
of the warning determines whether an una-
voidably unsafe prescription drug is unrea-
sonably dangerous, is an adequate warning
to the prescribing physician, but not to the
ultimate consumer, sufficient as a matter
of law," Court of Appeals would affirm
summary judgment for drug manufacturer
in products liability suit. Ala.Rules App.
Proc., Rule 18.

Jack Drake, University, Ala., for plain-
tiffs-appellants.

Lange, Simpson, Robinson & Somerville,
l,awrence B. Clark, Craig Alexander, Bir-
mingham, Ala., for defendants-appellants.

Appeal from the United States Distriet
Court for the Northern District of Alaba-
ma.

Before TJOFLAT, HILL and JOHNSON,
Circriit Judges.