Tyus v. Bosley, Jr. Brief in Opposition of Respondents

    No. 93-1394

In T he

^ttjnrcme Cimrt irf tlje S ta tes
October Term, 1993

Sharon T yus; Freeman B osley, Sr.; Bertha M itchell;
Irving Clay, Jr .; and Claude T aylor ,

Petitioners,
vs.

Freeman Bosley, Jr ., in his capacity as Mayor, City of St. Louis, 
Missouri; T homas A. V illa, in his capacity as President, Board of 

Aldermen, City of St. Louis, Missouri; Board of Aldermen, City of 
St. Louis, Missouri; and T he C ity of St. Louis, 

Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS 
THOMAS A. VILLA, BOARD OF ALDERMEN 

OF THE CITY OF ST. LOUIS,
AND THE CITY OF ST. LOUIS

R onnie L. W hite 
City Counselor 

E dward J. Hanlon 
Deputy City Counselor 

Julian L. Bush*
Associate Qty Counselor 

M ichael A. G arvin 
Assistant City Counselor 

Room 314 Qty Hall 
St. Louis, Missouri 63103 
(314) 622-3361
Attorneys for Respondents

♦Counsel of Record

Sl Louis Law Printing.Iiic. 13307 ManchesterKd StLouis.MO 63131 314-231-4477



TABLE OF CONTENTS

Page

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

JURISDICTION.............................................................. 2

REASONS WHY THE PETITION SHOULD BE DE­
NIED .......................................................................  6

I. The Petition Should Be Denied Because Peti­
tioners, Who Are Not Residents Of The Wards 
Where They Claim That There Is Vote Dilu­
tion, Do Not Have Standing To Present That 
Claim ............................................................... 6

II. The Petition Should Be Denied Because There
Is No Conflict Between The Decisions Below 
And This Court’s Decisions In Gingles And 
Voinovich........................................................  7

in. The Petition Should Be Denied Because There 
Is No Conflict Between The Decisions Below 
And This Court’s Decisions In City Of Rich­
mond V. United States And Shaw v. Reno ....  10

IV. The Petition Should Be Denied Because The 
Claimed Split Between District Courts Does 
Not Justify Granting A Writ Of Certiorari.... 12

CONCLUSION............................................................... 13



11 -

TABLE OF AUTHORITIES

Page(s)

CASES:

Barnett V. Daley, 835 F.Supp. 1063 (N.D. 111 1993); 809
F.Supp. 1323 (N.D. 111. 1992)................................ 12

Brown v. Board of Commissioners of the City of Chat­
tanooga, Tennessee, 722 F.Supp. 380 (E.D. Tenn.
1989)........................................................................  11

City of Richmond v. United States, 422 U.S. 35, 45
L.Ed.2d 1, 95 S.Ct. 2091 (1975)  ......................  10,11

Dillard v. Baldwin County Board of Education, 686
F.Supp. 1459 (M.D. Ala. 1988).............................. 11

Growe v. Emison, 507 U .S.___, 122 L.Ed.2d 388,113
S.Ct. 1075 (1993).................................................... 12

Hunter v. Underwood, 471 U.S. 222, 85 L.Ed.2d 222,
105 S.Ct. 1916 (1985)............................................  10,11

Nash V. Blunt, 797 F.Supp. 1488 (W.D. Mo. 1992), 
affirmed nom. African American Voting Rights
Legal Defense Fund, Inc. v. Blunt, 113 S.Ct. 1809,
123 L.Ed.2d 441 (1993).........................................  6

Rural West Tennessee African-American Affairs Coun­
cil, Inc. V. McWherter, 836 F.Supp. 453 (W.D.
Tenn. 1993)............................................................. 12

Shaw V. Reno, 509 U .S .____, 125 L.Ed.2d 511, 113
S.Ct. 2816(1993)....................................................9,10,11

Thornburg v. Gingles, 478 U.S. 30, 92 L.Ed.2d 25, 106
S.Ct. 2137 (1986)...................................................  7,8,12



111-

Voinovich v. Quiller, 507 U.S.___,113 S.Ct. 1149,122
L.Ed.2d 500 (1993)................................................  7,8

CONSTITUTIONAL AND STATUTORY PROVISIONS:

42U.S.C. §1973.............................................................. 11,12

MISCELLANEOUS:

Supreme Court Rule 10..................................................  12



No. 93-1394
I n T he

Supreme Court of tt|r '^n iU b  S tates
October Term, 1993

Sharon T yus; Freeman Bosley, Sr.; Bertha M itchell;
Irving Clay, Jr .; and Claude Taylor ,

Petitioners,

vs.

Freeman Bosley, Jr ., in  h is capacity as M ayor, City o f  St. Louis, 
M issouri; T homas A. V illa, in  his capacity as President, Board o f  

Alderm en, Q ty  o f  St. Louis, M issouri; Board of Aldermen, City o f  
St. Louis, M issouri; and The C ity of St . Louis,

Respondents.

On Petition for a Writ o f  Certiorari to the 
U nited States Court o f  A ppeals for the Eighth Q rcuit

BRIEF IN OPPOSITION OF RESPONDENTS 
THOMAS A. VILLA, BOARD OF ALDERMEN 

OF THE CITY OF ST. LOUIS,
AND THE CITY OF ST. LOUIS

Respondents Thomas A. Villa, Board of Aldermen of the City 
of St. Louis, and The City of St. Louis respectfully request that 
this Court deny the petition for writ of certiorari seeking review 
of the Eighth Circuit’s decision in this case. That decision is 
reported at 999 F.2d 1301 (1993).



■ 2 —

JURISDICTION

As petitioner states, the court of appeals denied petitioners’ 
petition for rehearing on November 1, 1993. On January 25, 
1994 Justice Blackmun signed an order extending to February 
15,1994 the time in which to file a petition for writ of certiorari. 
Then petitioner Sharon Tyus, but not the other petitioners,^ filed 
an Application for Extension of Time to File Petition for Writ of 
Certiorari to the United States Court of Appeals for the Eighth 
Circuit, which application was granted on February 8, 1994, 
extending the time to and including March 1,1994. Thereafter 
the petition now under consideration was filed. The Court has 
jurisdiction of the petition, insofar as it was filed by Sharon Tyus, 
but it does not have jurisdiction over the claims of her co­
petitioners - Freeman Bosley, Sr., Bertha Mitchell, Irving Clay, 
Jr., and Claude Taylor - because the time expired for the filing of 
a petition by any of them.

STATEMENT OF THE CASE

In January, 1992 the African American Voting Rights Legal 
Defense Fund, Inc., a black citizens’ organization, and 16 black 
voters in the City of St. Louis filed suit in the United States 
District Court for the Eastern District of Missouri against Tho­
mas A. Villa, President of the Board of Aldermen of the City of 
St. Louis, Vincent C. Schoemehl, Mayor of the City of St. Louis, 
and the Board of Aldermen, City of St. Louis. Plaintiffs attacked 
the recently approved ordinance of the City that had redistricted 
the City’s twenty-eight wards. Plaintiffs alleged that the Board 
of Aldermen had been presented with a plan that would have 
drawn 14 wards with a 65% black majority, but had rejected that 
plan in favor of a plan with only 12 wards with a 65% black 
majority, and that the plan thus violated section 2 of the Voting

’ The application that was granted on January 25,1994 was not served on 
respondents, and thus respondents do not know who joined in that application.



— 3

Rights Act, the Fourteenth Amendment, and other constitutional 
provisions (9, 11, 14-15).^

The City of St. Louis intervened as a defendant, and, in due 
course, the defendants answered. Admitting that there had been 
some acts of private and public discrimination in the City’s long 
history (22), that wards could have been drawn in such a way that 
there would have been 14 wards with a majority black population 
(id.), and admitting that voting in the City, and within some 
wards, had, on some occasions, been racially polarized (22-23), 
defendants denied plaintiffs’ allegations that, if the wards had 
been redistricted fairly and without discriminatory affect, blacks 
would constitute an effective voting majority in at least 14 wards 
(10, 21), and that the purpose of the redistricting plan was to 
abridge the right of blacks to vote (id.). They also plead that 
section 2 is unconstitutional if construed as plaintiffs urged (23- 
24).

Defendants then moved for summary judgment. They estab­
lished, by affidavit, that the white population of the City is 50.9% 
of the total population (43), that the black population is 47.5% of 
the total population (id), that the white voting age population is 
55.8% of the total voting age population (id.), that the black 
voting age population was 42.7% of the total voting age popula­
tion (id.), and that the 1991 redistricting plan “will elect” 12 
black aldermen (35). This is proportional representation, mea­
sured by voting age (32,53). They further established that there 
had been rough proportional representation of black voters by 
voting age since at least 1971 (33-35).

Plaintiffs’ response controverted none of these facts (84-94). 
Indeed, their expert complained that blacks had been packed into 
12 wards (86, 88), agreed that blacks have an effective voting 
majority in wards when the total population is 65% black or the

^References are to the appendix to appellants’ brief in the Eighth Circuit



voting age population is 60% black (87), asserted that it is 
possible to draw wards in such a way that there would be 14 
wards with a 65% black majority (89), and argued that propor­
tional representation should be assessed by total population, not 
by voting age population (90-91).

On June 17, 1992 the court entered summary judgment in 
favor of the defendants. The district court found that the 
redistricting plan provided for 12 wards in which black voters 
“should be able” to elect representatives of their choice, found 
that this constituted proportional voting age population repre­
sentation, found that there had been such representation since at 
least 1971, and noted that plaintiffs failed to point to any special 
circumstances that would demonstrate that this success does not 
accurately reflect the ability of blacks to elect their preferred 
representatives. Petition for Writ of Certiorari, B-8. Plaintiffs 
then filed a motion to alter or amend the judgment (142), together 
with an affidavit in support (142, 213).^ The district court, 
finding it inappropriate to reconsider the judgment based on an 
amended factual record since the plaintiffs had failed to show 
any reason why the evidence there presented could not have been 
produced at an earlier time. Petition for Writ of Certiorari, C-3, 
overruled the motion. Id., C-4.

’ Many o f the citations to the record contained in petitioners’ petition are 
to this rejected post-judgment affidavit (159-213), not to the summary 
judgment record (1-94). Other citations purport to be from the summary 
judgment record, but find no support there or anywhere else. In an effort to 
abide by the command o f Rule 15.3 that a brief in opposition be as short as 
possible, with a belief that the many distortions in the petition do not have a 
bearing on what would properly be before the Court if  certiorari should be 
granted, see Rule 15.1, and with an expectation that the Court will readily 
notice the vast discrepancy in the case described by petitioners and that 
described by the district court in its judgment and post-judgment order, 
respondents have decided not to expose each misrepresentation. Lest there 
be any misunderstanding, however, respondents do not concede the truth of  
any of the “facts” set forth in the statement o f the case, the argument, or any 
other section o f the petition for writ o f certiorari.



— 5-

Five of the 17 plaintiffs appealed to the Eighth Circuit, which 
affirmed the district court’s well-reasoned memorandum. Id., 
A-3. A petition for rehearing was denied, as weU as a suggestion 
for rehearing en banc. Id.



— 6

REASONS FOR DENYING THE WRIT

THE PETITION SHOULD BE DENIED BECAUSE PE­
TITIONERS, WHO ARE NOT RESIDENTS OF THE 
WARDS WHERE THEY CLAIM THAT THERE IS VOTE 
DILUTION, DO NOT HAVE STANDING TO PRESENT 
THAT CLAIM.

Petitioners (and others) brought suit alleging that blacks in the 
City of St. Louis have less opportunity to elect representatives of 
their choice than do whites. This is, on its face, an incredible 
proposition: two-thirds of the City’s city-wide elected municipal 
officials are black, including the City’s mayor,'* and for several 
decades the City’s board of aldermen has had black members in 
rough proportion to the voting age population of the City that is 
black. But the plaintiffs believed that the Voting Rights Act 
requires that ward boundaries be gerrymandered to establish the 
maximnm number of black controlled wards, and the boundaries 
were not. (32-36).* The district court found that the summary 
judgment record confirmed what intuition suggests, and the 
court concluded, as had a three-judge panel that had recently 
considered the question of whether blacks have an opportunity 
equal to that of whites to elect state legislators in the City of St. 
Louis, see Nash v. Blunt, 797 F.Supp. 1488 (W.D. Mo. 1992), 
affirmed sub. nom. African American Voting Rights Legal De­
fense Fund, Inc. v. Blunt, 113 S.Ct. 1809, 123 L.Ed.2d 441 
(1993), that blacks do have an opportunity equal to that of whites 
to elect representatives of their choice in the City of St. Louis. 
When some of the plaintiffs appealed, the judgment was af-

^The City o f St. Louis has three city-wide elected municipal officials. The 
mayor and the comptroller are black; the president o f the board of aldermen 
is white.

’ Plaintiffs plead that there could have been more black dominated wards 
than there are; thus the Voting Rights Act was violated (14-15).



firmed by the Eighth Circuit. Now the petitioners petition this 
Court for a writ of certiorari.

Petitioners have now identified certain wards where they 
claim that black voters lack an equal opportunity to elect repre­
sentatives of their choice: the 2nd, 6th, 7th, 8th, 17th, and 25th 
wards. PetitionforWritofCertiorari,pp 18-19. With respect to 
the 2nd Ward, this claim is inconsistent with their position in the 
district court, where their expert characterized the 2nd Ward as 
a black ward (89), and, indeed, complained that black voters had 
been “packed” into that ward (88). But, in any event, the only 
persons who have standing to claim that the votes of black voters 
in the 2nd, 6th, 7th, 8th, 17th, and 28th wards have been 
unlawfully diluted are, of course, black voters in the 2nd, 6th, 
7th, 8th, 17th, and 28th wards. But Sharon Tyus, the only 
petitioner who has filed a timely petition, is a voter in the 20th 
Ward (4). As for her out-of-time co-petitioners. Freeman Bosley, 
Sr. is a voter in the 3rd Ward (3), Bertha Mitchell is a voter in the 
4th Ward (id.), Irving Clay, Jr. is a voter in the 26th Ward (4), and 
Claude Taylor is a voter in the 27th Ward (id.). Thus they lack 
standing, and it is not likely that the Court will reach the 
questions presented by their petition.

n.
THE PETITION SHOULD BE DENIED BECAUSE 

THERE IS NO CONFLICT BETWEEN THE DECISIONS 
BELOW AND THIS COURT’S DECISIONS IN GINGLES 
AND VOINOVICH.

Petitioners first argue that the decisions below conflict with 
this Court’s decisions in Thornburg v. Gingles, 478 U.S. 30,92 
L.Ed.2d25,106 S.Ct. 2137 (1986) andVoinovichv. Quiller, 507
U.S.___, 113 S.Ct. 1149,122 L.Ed.2d 500 (1993), and therefore
this Court should grant their petition. But they do not, so the 
Court should not.



— 8

It takes a little work to ascertain why petitioners think that the 
decisions below conflict with Gingles, but it appears to be this: 
petitioners think that the courts below regard Gingles as making 
proportional representation an absolute bar, Petition for Writ of 
Certiorari, p. 9, while Gingles actually recognizes that special 
circumstances can relax that bar. /d.,pp. 11-12. But, in fact, the 
courts below explicitly recognized that special circumstances 
could rebut the presumption arising from the history of propor­
tional representation, noting that plaintiffs had failed to point to 
any such circumstance. Id., B-8. So there is no conflict with 
Gingles.

It also takes a little work to understand why petitioners think 
that the decisions below conflict with Voinovich, but it appears 
to be this: petitioners think that Voinovich regards “packing,” 
that is, placing more voters of a particular race in a district than 
are necessary to control the district, and “cracking,” that is, 
placing significant numbers of voters of a particular race in a 
district that they are unable to control, as unlawful vote dilution. 
This is a misunderstanding ofVoinovich. In fact, what the Court 
said is that “[i]n the context of single-member districts, the usual 
device for diluting minority voting power is the manipulation of 
district lines.” Voinovich, 122 L.Ed.2d at 511 (emphasis added). 
The Court went on and described cracking and packing as the 
two most prominent techniques for manipulating district lines. 
Id. But the Court nowhere defined cracking or packing as vote 
dilution per se rather than as devices for achieving that dilution. 
Just a moment of reflection shows why.

If one cannot place more voters of a particular race in a district 
than are needed to control the district, and if one cannot place 
fewer voters of a particular race than are needed to control the 
district, then one must place the optimum number of voters of 
that race in every district. If, for example, 60% of the voting age 
population of a district gives voters of a particular race control of 
a district, then, to avoid the twin evils of packing and cracking.



the districts must all be drawn in such a way that each district 
contains the optimum 60% level. It is not possible that the law 
requires that.

First, in each such district, voters of other races will necessar­
ily be cracked - there will be significant numbers of voters of 
other races, but they will be unable to elect representatives of 
their choice. Therefore, the notion that cracking is, per se, vote 
dilution is self-contradictory. The fact is that some voters will 
always be packed and that some voters will always be cracked. 
The present case is a case in point.

There are significant populations of white voters in the 2nd, 
5th and 19th wards (56), all of which are “safe” black wards. So 
the white voters in those wards have been cracked. Whites are 
also subject to packing. If the experts on both sides are right, and 
it takes 60% voting age population for black voters to control a 
ward, a ward will be controlled by white voters if white voters 
make up 45% of a ward’s voting population. Thus, giving a 
safety margin of 5%, packing of white voters occurs when wards 
are given a white voting age population of more than 50%. By 
that criterion, white voters are packed in sixteen wards (56). By 
the same logic, packing of black voters occurs when more than 
70% of the voting age population is black. By that criterion, 
black voters are packed in only ten wards (id.) If packing and 
cracking are per se vote dilution, it is white voters, no less than 
black voters, who have had their votes diluted. And it makes no 
sense to say that everybody’s votes have been diluted.

Second, drawing districts in such a way as to avoid packing or 
cracking of voters of a particular race necessarily means that 
voters of that race will control the maximum number of wards 
that their numbers permit. But the Court has already held that the 
Constitution does not permit districts to be gerrymandered to 
provide a racial minority with proportional representation. Shaw 
v.Reno, 509 U .S.___, 125 L.Ed.2d511,113 S.Ct. 216 (1993).



- 10-

If the Constitution cannot allow that, it cannot allow a gerryman­
der to provide a race with the maximum number of districts, an 
even more ambitious claim.

HL

THE PETITION SHOULD BE DENIED BECAUSE 
THERE IS NO CONFLICT BETWEEN THE DECISIONS 
BELOW AND THIS COURT’S DECISIONS IN CITY OF 
RICHMOND V. UNITED STATES  AND SHAW  V. RENO.

In the second section of their argument petitioners say that the 
decision below is inconsistent with the Court’s decisions in City 
ofRichmondv. United States, 422V.S. 35,45L.Ed.2d 1,95 S.Ct. 
2091 (1975) and Shaw v. Reno, supra, and with unidentified 
circuit court of appeals’ decisions. The idea seems to be that not 
only can a section 2 claim be based on effect without intent, such 
a claim may also be based on intent without effect It would be 
odd if petitioners were right about this: if a prejudiced jurisdic­
tion adopted a voting device with the expectation that the defect 
would adversely affect one race, but, in practice, it adversely 
affected the other race, why would one enjoin the device at the 
behest of a member of the race that derived the benefit of that 
device? It would be no different than a hypothetical case where 
a bigoted employer adopted an entry-level test that he expected 
disproportionate numbers of green people to fad, and did so for 
the purpose of excluding green people from employment with 
his business. If the employer miscalculated, and non-greens 
ended up failing the test in disproportionate numbers, with the 
result that non-greens, not greens, were excluded firom employ­
ment, there is no reason why such a test should be held to have 
unlawfully discriminated against greens, despite the bad motive.

Not surprisingly, it is hard to find cases discussing petitioners’ 
theory. Closest, perhaps, isHunterv. Underwood, 471 U.S. 222, 
85 L.Ed.2d 222,105 S.Q. 1916 (1985), a Fourteenth Amend-



11

ment voting rights case, where the Court held that a voting 
restriction, initially adopted with an illicit purpose, was invalid 
because “its original enactment was motivated by a desire to 
discriminate against blacks on account of race and the section 
continues to this day to have that effect.” Id., 471 U.S. at 233 
(emphasis added). Since then, district courts have relied on 
Hunter for the proposition that section 2 of the Voting Rights Act 
requires an effect, whatever the purpose. Brown v. Board of 
Commissioners o f the City o f Chattanooga, Tennessee, 722 
F.Supp. 380,389 (E.D. Tenn. 1989); Dillard v. Baldwin County 
Board o f Education, 686 F.Supp. 1459,1467 (M.D. Ala. 1988).

There is nothing in either Richmond or Shaw to the contrary. 
Richmond was a section 5 case, not a section 2 case. This is 
critical because section 5 explicitly requires, in determinations 
made pursuant to that section, that changes in the voting prac­
tices regulated by that section be determined not to have the illicit 
purpose and that they be determined not to have the illicit effect, 
while section 2 says nothing of the sort. Compare 42 U.S.C. 
§1973c with 42 U.S.C. §1973. Therefore Richmond lends no 
support at all to petitioners’ claim. Quite the contrary is tme.

Neither does Shaw. Shaw was concerned with the limited, 
extreme case where a redistricting scheme is so bizarre, so 
irrational on its face that it can only be understood as an effort to 
segregate voters into separate voting districts because of their 
race, without justification. Shaw v. Reno, supra, 125L.Ed.2dat 
536. Here petitioners admit that the City ’ s redistricting plan does 
not come under the Shaw standard. Petition for Writ of Certio­
rari, p. 24. So the opinion below cannot be inconsistent with the 
decision in Shaw. Indeed, there is language in Shaw that 
contradicts petitioners’ theory: Shaw describes voting practices 
as violating the Fourteenth Amendment “when they are adopted 
with a discriminatory purpose and have the fffect o f diluting 
minority voting strength.” Shaw, 125 L.Ed.2d at 524 (emphasis 
added).



—  12 -

IV

THE PETITION SHOULD BE DENIED BECAUSE THE 
CLAIMED SPLIT BETWEEN DISTRICT COURTS DOES 
NOT JUSTIFY GRANTING A W RIT OF CERTIORARL

In the third part of their argument petitioners assert that the 
Court should grant certiorari to decide whether proportionality 
should be determined on the basis of voting age population or 
upon the basis of total population, an issue on which the “lower 
courts” are split. But all of the lower courts that petitioners point 
to as courts that have rejected voting age proportionality in favor 
of total population proportionality are district courts, not courts 
of appeals, and it is conflicts between courts of appeals, not a 
district court and a court of appeals, that are appropriate for 
certiorari. See Supreme Court Rule 10. Moreover, at least one 
of the cases petitioners cite as a case that uses total population 
also uses voting age population. See Barnett v. Daley, 835 
F.Supp. 1063, 1067 (N.D. 111. 1993); 809 F.Supp. 1323, 1329 
(N.D. ni. 1992). Beyond this, none of the district court opinions 
petitioners cite rejects use of voting age, although, to be sure, 
they use total population.

This Court recently and pointedly noticed that courts, in 
determining whether a Voting Rights Act violation has occurred, 
have looked to voting age population, and further noticed that the 
Court itself had repeatedly referred to the voting population in its
own opiiuon in Gingles. Growe v. Emison, 507 U .S .__, 122
L.Ed.2d 388,403 n.4., 113 S. C t 1075 (1993). The most recent 
cases - the case at bar and Rural West Tennessee African- 
American Affairs Council, Inc. v. McWherter, 836 F.Supp. 453, 
463 (W.D. Term. 1993) - recogruze voting age population as the 
superior measure, and it is. It is the superior measure because it 
is the measure nxae directly related to the language of section 2 
itself, which language imohibits that which results in tiw denial 
or atsridgement of the right to vote, see 42 U.S.C §1973(a), a 
right possessed by voters.



13 —

CONCLUSION

For the foregoing reasons, the petition should be denied.

Respectfully submitted,

RONNIE L. WHITE 
City Counselor

EDWARD J. HANLON 
Deputy City Counselor

JULIAN L. BUSH*
Associate City Counselor

MICHAEL A. GARVIN 
Assistant City Counselor

Room 314 City Hall 
St. Louis, MO 63103 
(314) 622-3361

Attorneys for Respondents

*Counsel of Record