Fifth Circuit Court of Appeals Orders End of Discrimination in Shaw, Miss.

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October 28, L987

Gera1d Jones, Esg.
Chief Voting Section
Civil Rights Division
P.O. Box 66L28
Washington, D.C. 2OO35-6L28

Re: COMMENT UNDER SECTION 5 REGARDING BI,ADEN
COUNTY, NORTH CAROLINA

Dear Mr. Jones:

we are writing to request that you object to the pending
submission concerning the proposed redistricting of the B1ad6n
county Board of commissloners [[rereafter ,the Boardr]. The
comments provided by Cristina Correia on behalf of the Southern
Regionar council and by Lesrie J. winner, Esq., counser for theplaintiffs in Harry v. Blqden Cgunty, a case -challenging, onsection 2 grounds, the existing erection scheme, detiit-itre
retrogressive effect of the various changes, and the taintedpurpose of the propoaed scheme. we write in order to present asrightry different perspective: the Attorney Generar shourdobject to the new 5-1 mixed plan because it-represents a rrclear
vioration of amended section 2rr within the meaning of 28 c.F.R. s5l-.55 (1-987). As you are no doubt aware, the Attorney General
has yet_to interpose a single objection on section 2 resultsgrounds- since the effective date of the revised section 5guidelines. This submission provides an opportunity for the
Attorney General to show that his evaluation of section 2 issuesin the precrearance process conports with congress, repeatedly

*To the extent that the Attorney Generar has interposed
objections based on his conclusion that the submittingjurisdiction has been unable to conclude that the proposed change
does not have the purppse of denying the voting rights of
minority citizens, of course, his decision migtrt be characterized
as resting on section 2 grounds. Cf. Dillard v. Crenshaw Countv,
640 F. Supp. L347, l-353 (U.D. AIa. L986) (amended section 2
continues to prohibit lntentionally discriminatory election
systems); Major v. Treen, 574 F. Supp. 325, 344 (8.D. La. L983)
(three-judge court) (sane); S. Rep. No. 97-4L7, p. 27 (j.982)
(sane). But, to our knowledge, the Attorney General has
interposed no objections relying on the results prong of section
2.



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Comment Under Section 5
October 28, L987
Page 2

expressed intention that an objection be interposed when a
submission fails to pass muster under section 2.**

The Board has proposed a change both in the number of
commissioners and in the method of election. The Board would be
expanded from five commissioners t,o seven. One commissioner
would be elected at largei the other six would be elected fromthree districts (two canmissioners from each district) to
staggered terms.

Given the demographic makaup of the county, the proposar
clearly does not provide black oitizens with an egual opportunity
to elect the candidates of their choice. Although bracks
comprise 38.7t of the county's population, the pioposed schemevirtually guarantees that blacks have virtuarly no chance ofelected more than 2 (or 28t) of the comnissioners. Either the
Board should develop a five-nenber plan in which black citizens
stand a reasonable chance of electing two preferred candidates,or it shourd revise its seven-member plan Lo provide three
competitive seats. while the proviso in section 2(b) provides
that nothing in the Act estabrishes a right to proportional
representation, dDy assessment of whether a parlicular scheme
fairly reflects minority voting strength musl use, as a
benchmark, the relative size of the minority and white
communities. Given the fact that alternative plans would morenearly approximate the relative strength of the black community
in Bladen county, the use of this pran resurts in a dirution o?minority political power.

Furthermore, the uge of an at-large seat perpetuates thediscriminatory effect of the current ai-large scheme.*** Thelevel of racial broc voting in Braden county means that brack
citizens cannot erect the 6andidate of theii choice from a
county-wide district. An at-rarge seat is the functional
eguivalent of such a district. White voters in Bladen County can

**See. e.g., S. Rep. No. g7-4L7, p. L2 n. 31 (Lgt.zr, L2B
Cong. Rec. 57095 (daily ed., June L6, L9B2) (remarks of Sen.
Kennedy) i L28 cong. Rec, H3841 (daily ed. June L6, L9B2) (remarks
of Rep. Sensenbrenner and Rep. Edwards); Votino Rights Act:
Proposed section 5 Regrllations, Report of the subcomm. on civil
and Constitutional Rights of the House Judiciary Comm., 99th
Cong., 2d Sess. 5 (1986); Nomination of William Bradford Reynolds

Before the sen. Judiciaiy comm., 99th cong., lst sess. rrs 1rsas1
***A= we understqnd it, the current, five member, at-Iarge

scheme was precleared Inst October and has not yet been used.



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Comment Under Section 5
October 28, L987
Page 3

cast effective ballots both for their district commissioners and
for the at-Iarge post, but black voters will be effectively
disenfranchised from the at-large election.

The decision to use three multi-nember districts, rather
than to attempt to draw a five single-member district plan,
also dilutes the political pow€r of the black community. It
wourd be possibre, we believe, to draw two majority-brick single
member districts using a five-menber pran. see Letter from
cristina correia to Gerard Jones aE 2 (oct. 2, L9B7). Arthough
such a pran wourd require either conducting a house count or
obtaining a breakdown of enumeration districts from the Census
Bureau, that plan would provida black citizens with substantially
more effective poriticar power (z seats of 5) than does the
proposed system (2 seats of 7).

The fact that obtaining the necessary demographic
information could impose aome epsts on the couniy does not excuse
its decision to draw a pran that dilutes minority poriticar
pohrer. The county simply canngt shoulder its burden under
section 5 by choosing the cheapast districting scheme available.

Nor is it at all clear from the county's proposar that anyof the three districts contains a sufficiently high proportion of
brack voters to enabre bracks tp have a reasonable chance toelect the candidates of their ehoice. Leaving aside the guestion
whether the county's figures do not contain gross overestimation
of the actuar number of black rggistered voters, ge correia
Letter at 4, a 6Ot black district hardly represents trsafetr
districting. It is entirely possible that actual turnout wiII
render it impossible fpr black voters to elect their preferred
candidates even from District L.

The decision to Blace two incumbents in District L creates
substantial barriers to the short-term abitity of black voters to
elect their preferred qandidates. Electors in the two
predominantly white dietricts will presumably have the
opportunity to choose at least one new representative from their
districts (as two new seats have been added). Black voters,
however, who are precisely the group least likeIy actually to
have favored either of the current incumbents, are the onry grroup
who wiII have no effeqtive voice in filling any of the new seats.

In addition, the use of staggered termsr dS the courts have
often recognized, seq,,._e.g., City of Rome v. United States, 446
U.S. L56, l-85 n. 2L (t980); Buckaraga v. Sisseten Independent
School District No. 5,9f,5, 804 F.2d 469, 475 (8th Cir. 1986);
Perkins v. City of WeFS, Helena, 675 F.2d ZOL, 2L2 (8th Cir.),
aff'd, 459 U.S. 8OL (IeeZ;, can dilute the voting strength of



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Comment Under Section 5
October 28, L987
Page 4

black voters. This is particularly true in this case: were bothseats in District 1 to be up for election at the same time, blackvoters might un+!g.behind a single candidate thereby defeai,ing
the incumbents.****

Even if the Attorney Generar hrere to concrude that the
proposed plan does not fail the retrogression test, in that blackvoters are more likely (although not certain) to be able to elect
one or two preferred candidates under the proposed system than
under the existing system, the guiderine,s incorporalion ofsection 2 highlights a critical value: a covered- jurisdiction
should not be permitted to switch from one racially unfair systemto another. Regardress of how the Department defines the
benchmark for retrogression analysis, the benchmark for section 2analysis must be what the results lrould be under a racially fairelection system. Here, it is clear that a racially fair slrstern
would not contain either at-rarge seats or the proposed nurti-
member districts.

Particularry when the impetus for a proposed change is thedesire to head off pending section 2 litigation, as it-is here,the Attorney Generar shourd consider whether the proposed pran
wourd constitute an adeguate remedy, should the plaintitts-
prevail in the.riability phase of the pending ritigation. Here,of course, it is highly likery that plaintiffs wiri be able toestablish that the current at-rargre, majority-vote system
violates section 2r since arr three prongs oi the test set out bythe Supreme Court in Thornburg v., Gingles, 479 U.S. _, 92
L.Ed.2d 25 (L986), are clearry mst. rt is egualry likely thatthe court would find the countyrq proposal an inadequate remedyfor that violation.

When a jurisdiction that is found to have violated the Act
submits a-proposed remedy, it bears the burden of rrcomtingl
forward with a pran that promises realisticarly to work, inapromises rearistically to work now. tt Green v. schoor Board of
New Kent County, 39L U.S. 43O, 439 (1968); see S. Rep. No. 97-
4L7, p. 31, n. L2L (L982) (relying on Green to illustrate the
scope of the remedial obrigation in s 2 cases). crearry, thisplan, which attempts to poltpone untir r-990 any erection ior one
of the two seats in Distriot 1, cannot furfilr such a promise.
Moreover, by pracing two incumbents in District L, the pran arso

****of course, if the only way for black voters to elect the
candidate of their choice is to single shoot, then the proposed
system even more clearly violates section 2, since the result
would be that blacks, who constitute 38.78 of the population
would be rinited to erecting only l- (or L4t) of 't commissioners.



Comment Under Section 5
October 28, L987
Page 5

renders it more difficult in the short run for the black
community to fill those seats with its preferred candidates.

Moreover, because the county's plan wourd make it unrikery
that the black community could elect more than 2 of 7
commissioners, while a fair districting plan would likely enable
the black community to erect 2 of s commissioners, it woura
dilute the effective pawer of the black community. rThe Voting
Rights Act was designed to enabre minority citizens to gain
access to the political process and to gain the influence thatparticipation brings.rr u.s. conmission on civil Rights, The
v,gting Rights Act: Ten Years Af?er 8 (L97s) (enphasis added) i seealso S. Rep. No. 97-4L7, p. 33 (i.982). The presence of more
commissioners, and the use of an at-large seat, is likely todilute the real- political power exercis6d by representatives ofthe black community. cf. Dilrard v. crenshaw county, 649 F.Supp.289,296 (M.D. AIa. 198G), appeal pending, No. g6-7799
(L1th cir. ) .

In short, the proposed election scheme for the Bladen
coounty Board simpry does not satisfy section 2 of the voting
Rights Act. The Attorney General should therefore object to its
implementation.

Respectfully submitted,

Pame1a S. Karlan
Assistant Counsel