Blue v. US Department of the Army Brief for Appellees

    «
No.

IN THE
SUPREME COURT OFTHE UNITED STATES

OCTOBER TERM, 1990

Bill Clinton , G overnor  of

A r k a n sa s , et AL.,........................................................  Peti t ioners

vs.

M. C. J effers, et a l . , ................................................Responden t s

JURISDICTIONAL STATEMENT

J ohn Steven Cl a r k*
T im  H umphries 
Fran k  J. W ills

A rk a n sas  A ttorn ey  G eneral 
200 T o w er  Buildin g  
323 Center Street 
Little R o c k , A rkan sas  72201 
(501) 682-2007
*Counsel  o f  Reco rd

A R KA N SA S L E G ISL A TIV E  D IG EST. INC.



1

QUESTIONS PRESENTED

This appeal presents questions concerning a district 
court’s power to require preclearance under Section 3(c) of the 
Voting Rights Act, 42 U.S.C. §1973a(c), when the electoral 
system under attack specifically was found not to have 
violated the Constitution, and its power to retain jurisdiction 
over future apportionment plans to be adopted by the State, 
specifically:

I.

WHETHER THE MAJORITY ERRED BY IMPOSING 
PRECLEARANCE UNDER 42 U.S.C. %l973a(c) UPON 
FUTURE CHANGES IN ARKANSAS’ GENERAL ELEC­
TION MAJORITY VOTE LAWS AFTER IT SPECIFICAL­
LY DETERMINED THAT THE ONLY VOTING PRAC­
TICE CHALLENGED BY RESPONDENTS, THE 1981 
STATE LEGISLATIVE APPORTIONMENT PLAN, DID 
NOT VIOLATE THE CONSTITUTION.

II.

WHETHER THE MAJORITY ERRED WHEN "AS 
A MATTER OF ITS INHERENT EQUITABLE POWER,” 
IT RETAINED JURISDICTION OVER THE STATE 
LEGISLATIVE APPORTIONMENT PI^AN THAT WILL 
BE ADOPTED IN 1991 FOR THE PURPOSE OF ALLOW­
ING RESPONDENTS TO CHALLENGE IT AFTER THE 
MAJORITY SPECIFICALLY DETERMINED THAT THE 
1981 PLAN DID NOT VIOLATE THE CONSTITUTION.



11

LIST OF PARTIES

The Petitioners, who were defendants in the action 
below, are Bill Clinton, the Governor of Arkansas, W. J. 
McCuen, the Arkansas Secretary of State, and Steve Clark, the 
Arkansas Attorney General, all in their official capacities and 
as members of the Arkansas Board of Apportionment. The 
Respondents, who were plaintiffs in the action below, are 
M. C. Jeffers, A1 Porter, Evangeline Brown, Clyde Collins, 
O. C. Duffey, Earl Foster, The Reverend Ellihue Gaylord, 
Shirley M. Harvell, Linda Shelby, J. C. Jeffries, Lavester 
McDonald, Joseph Perry, Clinton Richardson, T. E. Patterson, 
Ernest Simpson, Bryan Smith, and Charlie Statewright.



I l l

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED..................................................... i

LIST OF PARTIES....................................................................  ii

TABLE OF CONTENTS ......................................................... jji

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

OPINIONS BELOW................................................................  1

JURISDICTION........................................................................  1

STATUTES AND RULES INVOLVED.............................  2

STATEMENT OF THE CASE................................................4

THE QUESTIONS PRESENTED ARE 
SUBSTANTIAL.......................................................................6

I. The Majority Erred By Imposing Preclearance 
Under 42 U.S.C. §1973a(c) Upon Future Changes 
In Arkansas’ General Election Majority Vote Laws 
After It Specifically Determined That The Only 
Voting Practice Challenged By Respondents, The 
1981 State Legislative Apportionment Plan, Did
Not Violate The Constitution.......................................  9

II. The Majority Erred When, "As A Matter Of Its
Inherent Equitable Power,” It Retained Jurisdic­
tion Over The State Legislative Apportionment 
Plan That Will Be Adopted In 1991 For The 
Purpose Of Allowing The Respondents To Chal­
lenge It After The Majority Specifically Deter­
mined That The 1981 Plan Did Not Violate The 
Constitution ......................................................................  12

CONCLUSION......................................................................... 14

APPENDIX



i
IV

TABLE o f  a u t h o r it ie s

CASES: Page

Brown v. Board o f  Schoo l  Commiss ione r s  o f  Mobi le 
Alabama, 542 F.Supp. 1078 (S.D. AI. 1982)

Ferguson v. Brick, 219  Ark. 288 
652 S.W.2d 1 (1983)

Gonzales v. United States, 589 F.2d 465 
(9th Cir. 1979) . .

Internat ional  Harvest er  Credit Corporat ion v. East 
Coast Truck, 547 F.2d 888 (5th Cir. 1977) 10, 11

J e f f e r s  v. Clmton, 730 F.Supp. 196 (E.D. Ark. 1989)

Jenkins v. City o f  Pensacola, 638 F.2d 1249 
(5th Cir. 1981) . .

. . . . 6

Jenkins v. State o f  Missouri, 807 F.2d 657 
(8th Cir. 1986) . . . Q 1 9

McMillan v. Escambia County, Florida, 638 F 2d 1239 
(5th Cir. 1981) .

O, FZ

Mears v. City o f  Little Rock, 256 Ark 359
508 S.W.2d 750 (1974)

Webber  v. White, 422 F.Supp. 416 (N.D. Tex. 1976) .. .7

Z im m er  v. McKeitan,  485 F.2d 1297 (5th Cir. 1973) 
a f f ’d s t th  nom. East Carol Parish S choo l  Board ’ 
v. Marshall, 424 U.S. 636 (1976)

+J, 4  V y . '  » r*  ^5•



V

TABLE OF AUTHORITIES
Page

STATUTES AND RULES:

28 U.S.C. §1253 ..........................................   2

42 U.S.C. §1973a(c)...........................................................passim

42 U.S.C. §1973(b).......................................................................4

FRCP 1 5 a ..................................................................................... 10

FRCP 15b...........................................................................2, 7, 10

FRCP 1 5 c ................................................................................ 4,10

ACA §7-5-106 (1987) .............................................................. 11

ACA §14-42-206 (Supp. 1989 )...............................................11

1975 Acts of Arkansas No. 269...............................................11

1973 Acts of Arkansas No. 168...............................................11

a



N o .__________

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

Bill Clinton , G overnor of 
A r k a n sa s , et a l . , ...................

vs.

M. C. J effers, et a l . , ...............

Peti t ioners

Responden t s

JURISDICTIONAL STATEMENT

Governor Bill Clinton of Arkansas, together with the 
other two members of the Arkansas Board of Apportionment 
respectfully submtt that this jurisdictional statement presents’ 
questions so substantial as to require plenary consideration
with briefs on the merits and oral argument, for their 
resolution.

OPINIONS BELOW

The opinion and dissent of the district court (J.S. Appx. 
1) are as yet unreported.

JURISDICTION

The district court entered its final order with respect to 
the claim under Section 3(c) of the Voting Rights Act 
42 U.S.C. §1973a(c),on May 16,1990. J.S. Appx. 1. Petitioners’ 
filed their notice of appeal on June 13, 1990. J.S. Appx 98 
Petitioner’s time to file this Jurisdictional Statement was 
extended up to and including August 31, 1990 by Justice



7

Blackmun. J.S. Apx. 100. This Court has jurisdiction under 28 
U.S.C. §1253.

STATUTE AND RULE INVOLVED 

42 U.S.C. §1973a(c) provides:

If in any proceeding instituted by the Attorney General 
or an aggrieved person under any statute to enforce the 
voting guarantees of the fourteenth or fifteenth amend­
ment in any State or political subdivision the court finds 
that violations of the fourteenth or fifteenth amendment 
justifying equitable relief have occurred within the 
territory of such State or political subdivision, the court, 
in addition to such relief as it may grant, shall retain 
jurisdiction for such period as it may deem appropriate 
and during such period no voting qualification or 
prerequisite to voting or standard, practice or procedure 
with respect to voting different from that enforced or in 
effect at the time the proceeding was commenced shall be 
enforced unless and until the court finds that such 
qualification, prerequisite, standard, practice or pro­
cedure does not have the purpose and will not have the 
effect of denying or abridging the right to vote on 
account of race or color or m contravention of the voting 
guarantees set forth in Section 1973b(f)(2) of this 
Title___"

F.R.C.P. 15(b) provides:

Amendmen t s  to c o n f o rm  to th e  e v id ence .  When issues 
not raised by the pleadings are tried by express or 
implied consent of the parties, they shall be treated in all 
respects as if they had been raised in the pleadings. Such 
amendment of the pleadings as may be necessary to cause



\

them to conic inn iodic evidence and to raise f liese issues 
may be made upon motion of any party at anv time, even 
after judgment; but failure so to amend does not affect 
<be result of the trial of these issues. If evidence is 
objected to at the trial on the ground that it is not within 
the issues made by the pleadings, the court may allow the 
pleadings to be amended and shall do so freely when the 
presentation of the merits of the action will be subserved 
thereby and the objecting party fails to satisfy the court 
that the admission of such evidence would prejudice the 
party in maintaining the party s action or defense upon 
the merits. I he court may grant a continuance to enable 
the objecting party to meet such evidence.

8

i?
P



4

STATEMENT OF THE CASE

This is the second appeal arising out of the most 
ambitious Section 2 redistricting action ever filed. 'Flic first 
appeal arose from the district court’s liability finding and the 
remedy it imposed under Section 2 of the Voting Rights Act, 
42 U.S.C. §1973(b), which has been assigned docket number 
89-2008 in this Court. This second appeal challenges the 
district court’s subsequent decision to place Arkansas under 
"partial preclearance” pursuant to 42 U.S.C. §1973a(c) for 
alleged constitutional violations in voting laws other than 
those in issue during the trial below. In addition, Petitioners 
appeal the majority’s decision to retain jurisdiction over the 
legislative reapportionment plan to be adopted in 1991 "for 
the purpose of entertaining any challenge by (Respondents)" 
when the court specifically found that the 1981 plan did not 
violate the Constitution.

A majority of the district court panel partially granted 
Respondents’ request for preclearance under Section 3(c) of 
the Voting Rights Act based upon four statutes that imposed 
majority vote requirements in local elections that were 
adopted between 1973 and 1989. Although the on ly  voting 
practice or procedure attacked by respondents up to and 
during trial was Arkansas’ 1981 legislative apportionment 
plan, the majority, after trial and upon its own motion, 
amended the pleadings under F.R.C.P. 15(c) to permit the 
imposition of Section 3(c) preclearance for future changes in 
majority vote requirements for general elections. However, it 
did not void those local election majority vote statutes that it 
found violated the Constitution nor could it find other 
"constitutional violations” upon which to impose pre­
clearance. The entire panel of the district court specifically



5

found that the 1981 legislative apportionment plan did not 
violate the Constitution.

The majority also felt compelled to "impose one further 
item of relief in the nature of preclearance, not as a matter of 
statute, but as a matter of inherent equitable power." J.S. 
Appx. 40. It directed that no plan of apportionment adopted 
by Arkansas after the 1990 Census be put into effect until sixty 
days after its final adoption "for the purpose of entertaining 
any challenge by the plaintiffs in this case to such plan.” 
J.S. Appx. 2. The majority gave no basis, other than its 
"inherent equitable power,” for its action notwithstanding 
that it had been unable to discern any constitutional infirmity 
in the 1981 apportionment plan.



THE QUESTIONS PRESENTED ARE SUBSTANTIAL

Introduct ion.  In the words of the dissent to an earlier 
ruling in this case, "The courts have run amok.” J e f f e r s  v 
Clinton, 730 F.Supp. 196, 278 (E.D. Ark. 1989). To support its 
desire to impose preclearance under §3(c) of the Voting 
Rights Act, the majority was forced to divine constitutional 
violations from four statutes that imposed majority vote 
requirements in municipal elections, and, sua s f o n t e ,  to 
amend the pleadings to supply the request for relief it 
imposed. See J.S. Appx. 16. Not content to require federal 
supervision over future changes in Arkansas’ general election 
majority vote laws (which, at least, the majority determined 
were unconstitutional,'J.S. Appx. 24), the majority invoked 
its inherent equitable power” to enjoin the 1991 apportion­
ment plan from becoming effective for 60 days to give 
Respondents2 the opportunity to challenge it before the same 
district court. J.S. Appx. 40-41. This, notwithstanding the 
district courts unanimous finding that Arkansas’. 1981 
legislative apportionment plan was not  unconstitutional. J.S. 
Appx. 16, 44.

These unprecedented actions warrant plenary review for 
several reasons. First, the majority misapplied Section 3(c) 
when it imposed preclearance after specifically finding that 
the voting standard at issue, Arkansas’ 1981 legislative 
apportionment plan, did not contravene the voting guar- 
antees of either the Fourteenth or Fifteenth Amendments. A

'Notwithstanding the majority’s determination that the majority 
vote statutes were passed for the purpose of suppressing black political
success, J.S. Appx. 24, it allowed them to remain in effect. T.S. Appx. 24 
Note 7,

"Respondents' motion for class certification was denied. Why they 
are favored by the majority over other Arkansas citizens to challenge the 
1991 plan is never explained.



7

straight forward reading of Section 3(c) indicates that a court 
must find a constitutional violation in the electoral mech­
anism that was the subject of the "proceeding instituted . . .  to 
enforce the voting guarantees of the Fourteenth or Fifteenth 
Amendment" before it has the option of imposing pre­
clearance.3 By refusing to give Section 3(c) a straightforward 
reading, the majority has improperly transformed Section 
3(c) into a cause of action itself for preclearance, rather than 
recognizing that it is part of a remedial scheme to enforce the 
voting guarantees of the fourteenth and fifteenth amend­
ments. See Webber  v. White, 422 F.Supp. 416 423 (N D Tex 
1976).

Second, the majority’s misapplication of Section 3(c), 
when coupled with its erroneous interpretation of F.R.C.P. 
15(b), operated to deny Petitioners due process of law. As 
observed by the dissent, the issue whether preclearance could 
be based upon four majority-vote statutes (only one of which 
was in effect when this action was filed) did not arise until 
after trial was completed. J.S. Appx. 58. Petitioners 
objected to the attempted introduction of evidence concerning 
the majority-vote statutes on relevance grounds and the court 
never inquired whether Respondents desired to amend their 
pleadings. By sua sp on t e  amending Respondents' pleadings 
seven months after trial to include the claim that the majority- 
vote statutes should be the basis for imposing preclearance, 
the majority denied Petitioners the opportunity to request a 
continuance to enable them to meet Respondents’ "evidence”

3The majority's reading of Section 3(c), see J.S. Appx. 17, 
implicitly inserts the word "other" between the words Jthat" and 
violations so that Section 3(c) is read to say "If in any proceeding . . .  to 

enforce the voting guarantees of the fourteenth or fifteenth amendment 
. . .  the court finds that (other) violations of the fourteenth or fifteenth 
amendment justifying equitable relief have occurred. . . ." This apparent 
instance of judicial legislating should be remedied.



8

and deprived Petitioners of their fundamental right to 
procedural due process.

Finally, the majority below abused its discretion when it 
invoiced its inherent equitable powers to postpone the 
adoption of Arkansas’ 1991 apportionment plan in order to 
allow Respondents the opportunity to challenge it. The 
challenged 1981 plan was specifically found not to have 
violated either the fourteenth or fifteenth amendments. The 
majority s spontaneous invocation of its inherent equitable 
power, absent any finding that Arkansas’ apportionment plan 
violated the Constitution, ignores the traditional rule that 
federal courts may not invoke their inherent equitable power 
to impose remedies absent a current violation of the 
Constitution. Jenkins v. State o f  Missouri, 807 F.2d 651, 666 
(8th Cir. 1986).

Plenary review of these important issues is required to 
provide guidance to the lower courts in their imposition of the 
drastic remedy of preclearance under Section 3(c), an area 
heretofore not addressed by this Court. Further, the district 
court’s apparent attempt to free the exercise of its inherent 

^  • >*■ equitable powers from the restraint of remedying constitu­
tional violations and thus to enable it to interfere improperly 
with the State s electoral mechanisms should be quashed by 
this Court. Similar, if not identical problems are likely to arise 
throughout this Nation as its States begin developing and 
implementing new redistricting plans following the 1990 
census. Guidance from this Court is essential.



9

I.

THE MAJORITY ERRED BY IMPOSING PRECLEAR­
ANCE UNDER 42 U.S.C. %1973a(c) UPON FUTURE 
CHANGES IN ARKANSAS’ GENERAL ELECTION MA­
JORITY VOTE LAWS AFTER IT SPECIFICALLY 
DETERMINED THAT THE ONLY VOTING PRACTICE 
CHALLENGED BY RESPONDENTS, THE 1981 STATE 
LEGISLATIVE APPORTIONMENT PLAN, DID NOT 
VIOLATE THE CONSTITUTION.

By imposing "limited preclearance” under Section 3(c), 
the majority not only eschewed the common-sense reading of 
the statute, but also ignored the limited precedent in which 
Section 3(c) preclearance previously had been applied. The 
result of the majority’s interpretation of Section 3(c) is to 
transform it into a cause of action for preclearance itself, thus 
allowing preclearance to be imposed, absent any other 
remedy, without notice of those alleged constitutional 
"violations” upon which it is to be based.

Section 3(c) is available "in any proceeding . . .  to enforce 
the voting guarantees of the fourteenth or fifteenth amend­
ment” and specifically requires a showing that "violations of 
the fourteenth or fifteenth amendment justifying equitable 
relief have occurred. . . .” 42 U.S.C. §1973a(c). Preclearance 
then may be imposed "in addition" to other equitable relief 
granted to remedy the constitutional violations found. Id.

A fort ior i ,  any proceeding to enforce voting guarantees 
must have had one or more voting standards, practices, or 
procedures as its object. To sever the remedy of preclearance 
from any finding that the voting standard, practice or 
procedure under attack violated the fourteenth or fifteenth



10

amendments allowed the majority essentially untrammelled 
discretion to impose the draconian remedy of preclearance on 
grounds incidental to the action.4 Every other court that has 
imposed preclearance under Section 3(c) has done so on the 
basis of finding constitutional violations in the particular 
electoral mechanism under attack. See McMillan v. Escambia 
County, Florida, 638 F.Supp. 1239, 1240 (5th Cir. 1981); 
Jenkins v. City o f  Pensacola, 638 F.Supp. 1249,1255 n. 18 (5 th 
Cir. 1981); Brown v. Board o f  S choo l  Commiss ione r s  o f  
Mobile, Alabama, 542 F.Supp. 1078, 1101-02 (S.D. Ala. 1982). 
Not only did the majority torture the language of Section 3(c) 
in an apparent quest for some justification for preclearance, 
J.S. App. 51, it completely ignored the statute’s command 
that preclearance may be imposed only in addit ion to  other 
equitable relief, which was not granted.

The majority also erroneously interpreted FRCP 15(b)5 
when it amended Respondents’ pleadings to add a request for 
preclearance based on Arkansas’ majority-vote statutes, 
which deprived Petitioners of procedural due process. A 
condition precedent to amending the pleadings to conform to 
the evidence is that the "issues not raised by the pleadings are 
tried by express or implied consent of the parties. . . .” 
F.R.C.P. 15(b); Internat ional  Harv es t er  Credit Corporat ion v. 
East Coast Truck, 547 F.2d 888, 890 (5th Cir. 1977). Although 
the amendment of pleadings to conform to the evidence is

! As noted by the dissent, Respondents offered only one runoff statute 
into evidence, Act 905 of 1989, A.C.A. §14-42-206 (Supp. 1989), and 
argued in their pretrial brief that majority vote requirements only were 
evidence of one of the Zimmer factors to be considered in their Section 2 
attack upon the 1981 apportionment plan. J.S. App. 53, 58.

'Although the majority cited FRCP 15(c) as the basis for amending 
Respondents' pleadings, it is clear that the appropriate section of Rule 15 
is subsection (b). FRCP 15(c) addresses the relation back of amendments 
under FRCP 15(a). FRCP 15(b) concerns amendments to conform to the 
evidence.



11

generally left to the sound discretion of the trial court, 
Gonzales v. United States, 589 F.2d 465, 469 (9th Cir. 1979), 
an implied amendment of the pleadings will not be allowed 
where it results in substantial prejudice to a party. Inter­
nat ional  Harve s t er  Credit Corporation, 547 F.2d 890. As 
observed by the Internat ional  Harve s te r  court, "the intro­
duction of evidence relevant to an issue already in the case may 
not be used to show consent at trial of a new issue absent a 
clear indication that the party who introduced the evidence 
was attempting to raise a new issue.” Id. Majority vote 
statutes6 were never an "issue” until the majority deemed 
them such after trial.

As noted by the dissent, the pleadings made no mention 
of the majority vote statutes used by the majority as its basis 
for imposing preclearance. J.S. App. 52. Contrary to the 
majority’s assertion, the four statutes in issue were not 
mentioned at pretrial conference. In response to questions 
from the court, Respondents explicitly acknowledged that the 
1981 apportionment plan was the focus of their action. Only 
one of the four statutes was actually introduced into evidence 
during the trial and that as the evidence of "discrimination 
enhancing” factors to be considered in evaluating the 1981 
apportionment plan under Z im m e r  v. McKiethen,  485 F.2d 
1297 (5th Cir. 1973), a f f ’d  sub nom. East Carol Parish School  
Board v. Marshall, 424 U.S. 636 (1976). Indeed, plaintiffs’ new 
theory was advanced for the first time, after trial, in their 
post-trial submissions, apparently in response to the court’s 
questions during closing argument.

6The four majority vote statutes in issue were: 1973 Acts of Arkansas, 
No. 168, held unconstitutional, Mears v. City of Little Rock, 256 Ark. 359, 
508 S.W.2d 750 (1974); 1975 Acts of Arkansas, No. 269, held un­
constitutional, Ferguson v. Brick, 279 Ark. 288,652S.W.2d 1 (1983); 1983 
Acts of Arkansas, No. 909, A.C.A. §7-5-106 (1987); 1989 Acts of Arkansas, 
No. 905, A.C.A. §14-42-206 (Supp. 1989).



12

Never was the issue of whether the four majority-vote 
laws, alone, could be an independent basis for imposing 
Section 3(c) preclearance tried with the explicit or implicit 
concurrence of Petit,oners. The words of the d.ssent, "I 
confess to the feeling that the defendants have been 
bushwacked on this issue. A careful examination of the 
evidentiary record would . . . convince any lawyer that 
constitutional challenges to those four runoff statutes simply 
were not tried out. I conclude that the defendants' consti­
tutional right to procedural due process has been violated 
here. . . .” J.S. App. 59.

II.

THE MAJORITY ERRED WHEN "AS A MATTER OF ITS 
INHERENT EQUITABLE POWER," IT RETAINED 
JURISDICTION OVER THE STATE LEGISLATIVE AP­
PORTIONMENT PLAN THAT WILL BE ADOPTED 
IN 1991 FOR THE PURPOSE OF ALLOWING THE 
RESPONDENTS TO CHALLENGE IT AFTER THE 
MAJORITY SPECIFICALLY DETERMINED THAT THE 
1981 PLAN DID NOT VIOLATE THE CONSTITUTION.

The majority abused its discretion by imposing a 
remedy "in the nature of preclearance”, J.S. App. 40, upon 
Arkansas apportionment process after it had specifically 
determined that the 1981 apportionment plan passed 
constitutional muster. As a general matter, federal courts may 
not invoke their "inherent equal powers” to fashion a remedy 
m a situation unless they find that situation presently offends 
t ae Constitution; federal remedial power may be exercised 
only on the basis of a constitutional violation. Jenkins v. State 
o f  Missouri, 807 F.2d 657,666 (8th Cir. 1986). This restriction 
specifically includes "preclearance” remedies. Cf. 42 U.S.C. 
§1973a(c) (the court must find violations of the fourteenth or



13

fifteenth amendments to be entitled to impose precleatance 
under the Voting Rights Act).

Although the majority specifically found constitutional 
violations in other electoral mechanisms, which it declined to 
remedy, it did not find that the 1981 apportionment plan or 
process violated the Constitution. Yet, without explanation, it 
chose to enjoin the forthcoming 1991 apportionment plan 
from becoming effective until this particular group of 
Respondents decided whether to challenge it, giving them the 
same forum that has already generated two appeals and some 
247 pages of dissent. There exists no legitimate purpose for 
the majority’s action. Absent its finding a constitutional 
violation in Arkansas’ apportionment process, the majority’s 
invocation of its "inherent equitable powers” to enjoin the 
implementation of Arkansas’ 1991 apportionment plan until 
Respondents are given an opportunity and forum to challenge 
it, is an abuse of discretion and should be reversed.



14

CONCLUSION

This is the first opportunity that the Court has had to 
interpret Section 3(c) of the Voting Rights Act and the 
circumstances under which preclearance may be imposed, if 
any, when the electoral procedure in question was specifically 
found to be constitutional. If the majority’s interpretation of 
Section 3(c) is upheld, federal trial courts will have essentially 
unrestricted authority to place state election systems under 
federal supervision, without regard to due process of law. 
This, coupled with the majority’s vision of its "inherent 
equitable powers, which purportedly allows it to retain 
jurisdiction over future apportionment plans even though the 
current plan was determined to be constitutional, gives 
federal trial courts a virtual carte blanche to superintend state 
election laws, a result patently at odds with traditional notions 
of federalism and comity.

Petitioners respectfully request that the Court note 
probable jurisdiction of this action and require plenary 
consideration of the questions presented herein, with briefs 
on the merits and oral argument.

Respectfully submitted,

J ohn Steven Cl a r k*
T im  H umphries 
Fran k  J. W ills

A rkan sas  A ttorney  G eneral

2 0 0  T o w er  Building

323 Center Street

Little Rock, Arkansas 72201
(501) 682-2007
*Counsel  o f  Reco rd

v y f - i ,



A P P E N D I X



TABLE OF CONTENTS - APPENDIX

JUDGMENT ...........

OPINION....................

NOTICE OF APPEAL. .  .
J.'

. .  A-98

ORDER EXTENDING TIME TO FILE 
JURISDICTIONAL STATEMENT . . A-100

_  _________



A-1

IN THE U NITED STATES D IS T R IC T  CO U R T  
EA STERN  D IS T R IC T  OF ARKANSAS  

EASTERN DIVISION

M. C. Jeffers, A1 Porter, Evangeline Brown,
Clyde Collins, O. C. Duffy, Earl Foster, The 
Rev. Ellihue Gaylord, Shirley M. Harvell,
Linda Shelby, J. C. Jeffries, Lavester McDonald,
Joseph Perry, Clinton Richardson, T. E.
Patterson, Earnest Simpson, Brian Smith, and 
Charlie Statewright, on behalf of themselves 
and all others similarly situated,.............................  Plaintiffs,

v. No. H-C-89-004

Bill Clinton, in his official capacity as Governor 
of Arkansas and Chairman of the Arkansas 
Board of Apportionment; W. J. McCuen, in his 
official capacity as Secretary of State of 
Arkansas and member of the Arkansas Board 
of Apportionment; and Steve Clark, in 
his official capacity as Attorney General of 
Anransas and member of the Arkansas Board 
of Apportionment,....................................................Defendants.

JUDGMENT

In accordance with the opinion filed today, it is 
CONSIDERED, ORDERED, ADJUDGED, and DECREED 
as follows:

1. The final order with respect to the claim under 
Section 2 of the Voting Rights Act, filed on March 5, 1990, is 
incorporated herein by reference.



I
A-2

2- The plaintiffs request for preclearance under Section 
3(c) of the Voting Rights Act is granted in part, and no voting 
qualification, prerequisite to voting, or standard, practice, or 
procedure with respect to voting different from that in force 
or effect at the time this decree is entered shall be enforced 
unless and until this Court finds that such qualification, 
prerequisite, standard, practice, or procedure does not have 
the purpose and will not have the effect of denying or 
abridging the right to vote on account of race or color, or 
in contravention of the voting guarantees set forth in 
§ 1973b(f)(2) of Title 42 of the United States Code; provided, 
that such qualification, prerequisite, standard, practice, or 
procedure may be enforced if the qualification, prerequisite, 
standard, practice, or procedure has been submitted by the 
chief legal officer or other appropriate official of this State to 
the Attorney General, and the Attorney General has not 
interposed an objection within 60 days after such submission; 
provided further, that the provisions and restrictions con­
tained in this paragraph 2 shall be limited to voting 
qualifications, prerequisites to voting, standards, practices, 
and procedures imposing or relating to a majority-vote 
requirement in general elections.

3. Paragraph 2 of this judgment shall remain in full 
force and effect until further order of this Court.

4. No plan of apportionment adopted by the defendant 
Board of Apportionment for the Arkansas General Assembly 
after the 1990 census may go into effect until 60 days have 
elapsed from the date of its final adoption by the Board. This 
Court retains jurisdiction, within that time period, for the 
purpose of entertaining any challenge by the plaintiffs in this 
case to such plan. If no such challenge is forthcoming, the plan 
may go into effect, subject, however, to the right of any



t

A-3

aggrieved citizen to challenge it in an appropriate action at a 
later time.

5. In all other respects the request of plaintiffs foi 
preclearance is denied.

6. This Court retains jurisdiction for the purpose of 
entering such other orders, if any, as may be necessary to 
effectuate this judgment.

It is so ordered this 16th day of May, 1990.

/s/ Richard S. Arnold 
United States Circuit Judge

/s/ George Howard, Jr. 
United States District Judge



A-4

IN THE UNITED STATES D ISTR IC T CO U R T  
EASTERN D IS T R IC T  OF ARKANSAS  

EASTERN DIVISION

M. C. Jeffers, A1 Porter, Evangeline Brown, 
Clyde Collins, O. C. Duffy, Earl Foster, The 
Rev. Ellihue Gaylord, Shirley M. Harvell, 
Linda Shelby, J. C. Jeffries, Lavester McDonald, 
Joseph Perry, Clinton Richardson, T. E. 
Patterson, Earnest Simpson, Brian Smith, and 
Charlie Statewright, on behalf of themselves 
and all others similarly situated,...................... Plaintiffs,

No. H-C-89-004

Bill Clinton, in his official capacity as Governor 
of Arkansas and Chairman of the Arkansas 
Board of Apportionment; W. J. McCuen, in his 
official capacity as Secretary of State of 
Arkansas and member of the Arkansas Board 
of Apportionment; and Steve Clark, in 
his official capacity as Attorney General of 
Arkansas and member of the Arkansas Board 
of Apportionment,....................................................Defendants.

Submitted: November 3, 1989 
Filed: May 16, 1990

Before ARNOLD, Circuit Judge, EISELE, Chief District 
Judge, and HOWARD, District Judge.

ARNOLD, Circuit Judge.

On December 4, 1989, we filed our first opinion in this



A-5

voting-rights case. We held that the plan of apportionment 
then in effect for the Arkansas General Assembly — the plan
adopted by the State Board of Apportionment in 1981 _
diluted the votes of black citizens in violation of Section 2 of 
the Voting Rights Act of 1965, as amended in 1982,42 U.S.C 
§§ 1973 et seq. We directed the defendants to submit a new, 
lawful plan in time for use in the 1990 elections. The' 
questions whether the defendants had also violated the 
Constitution, and whether, if so, the remedy of preclearance 
under Section 3(c) of the Voting Rights Act, 42 U.S C 
§ 1973a(c), should be applied, were left to be decided in 
another opinion. This is that opinion.

We hold that the State of Arkansas has committed a 
number of constitutional violations of the voting rights of 
black citizens. Some violations are distant in time, and their 
effects are in large part no longer with us. Others have already 
been remedied by judicial action. Still others are not of the 
type curable by preclearance. But a limited preclearance 
remedy is still required by this record. The State has 
systematically and deliberately enacted new majority-vote 
requirements for municipal offices, in an effort to frustrate 
black political success in elections traditionally requiring only 
a plurality to win. We therefore direct that any future laws, 
standards, or practices designed to enforce or enhance a 
majority-vote requirement not take effect until the pre­
clearance process has run its course. We further direct that the 
plan of apportionment for the State Legislature to be adopted 
by the Board of Apportionment after the 1990 census not.take 
effect until the plaintiffs have had a chance to inspect it and to 
challenge it in this Court.



A-6

I.

We begin by setting out Section 3(c) of the Voting Rights 
Act, the statute that principally governs this part of the case. It 
reads as follows:

(c) If in any proceeding instituted by the Attorney 
General or an aggrieved person under any statute to 
enforce the voting guarantees of the fourteenth or 
fifteenth amendment in any State or political subdivision 
the court finds that violations of the fourteenth or 
fifteenth amendment justifying equitable relief have 
occurred within the territory of such State or political 
subdivision, the court, in addition to such relief as it may 
grant, shall retain jurisdiction for such period as it may 
deem appropriate and during such period no voting 
qualification or prerequisite to voting or standard, 
practice, or procedure with respect to voting different 
from that in force or effect at the time the proceeding 
was commenced shall be enforced unless and until the 
court finds that such qualification, prerequisite, standard, 
practice, or procedure does not have the purpose and will 
not have the effect of denying or abridging the right to 
vote on account of race or color, or in contravention of 
the voting guarantees set forth in section 1973b(f)(2) of 
this title: Provided, That such qualification, prerequisite, 
standard, practice, or procedure may be enforced if the 
qualification, prerequisite, standard, practice, or pro­
cedure has been submitted by the chief legal officer or 
other appropriate official of such State or subdivision to 
the Attorney General and the Attorney General has not 
interposed an objection within sixty days after such 
submission, except that neither the court’s finding nor 
the Attorney General's failure to object shall bar a



0

subsequent action to enjoin enforcement of such qualifi­
cation, prerequisite, standard, practice, or procedure.

Obviously this case is one in which this statute at least 
potentially applies. It is a proceeding instituted by aggrieved 
persons under a statute (the Voting Rights Act), and the 
purpose of both the statute and the proceeding is to enforce 
the voting guarantees of the Equal Protection Clause of the 
Fourteenth Amendment and of Section 1 of the Fifteenth 
Amendment. Other provisions of the Voting Rights Act 
automatically apply the preclearance remedy (the require­
ment of advance federal approval of changes in election laws 
and practices) to certain states and political subdivisions. 
Section 3(c) empowers a court, in a proper case, to impose this 
remedy on States or political subdivisions not originally 
covered. Arkansas did not have a literacy test for voting in 
1965, when the Voting Rights Act originally became law, and 
so it was not among those jurisdictions subject to preclearance 
by the statute. Plaintiffs ask us to subject the State to 
preclearance in this case. In order to decide this claim, we must 
determine (I) whether violations of the Fourteenth or 
Fifteenth Amendments justifying equitable relief have 
occurred within the State or any of its political subdivisions; 
and (2) whether, if so, the remedy of preclearance should be 
imposed. To those issues we now turn.

II.

A.

Before discussing the proof, we must decide what legal 
standard applies to the question whether constitutional 
violations have occurred. All parties agree that intentional 
racial discrimination is an essential element of plaintiffs’ 
claim under the Equal Protection Clause of the Fourteenth

A-7

r-:



A-8

Amendment. They disagree, however, with respect to the 
Fifteenth Amendment. Plaintiffs take the position that a 
discriminatory impact on black voters is sufficient to establish 
a Fifteenth Amendment claim. This is essentially the same 
legal standard as the "results test" enacted as a matter of 
statute by the 1982 amendments to the Voting Rights Act. 
Defendants, on the other hand, argue that intentional racial 
discrimination must be shown.

We think defendants have the better of the argument on 
this point. We look first to the text of Section 1 of the 
Fifteenth Amendment. It reads:

The right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any State 
on account of race, color, or previous condition of 
servitude.

For purposes of comparison, we also set out here the text of 
the Equal Protection Clause of the Fourteenth Amendment:

No State shall . . . deny to any person within its 
jurisdiction the equal protection of the laws.

If the language of the Fifteenth Amendment cuts either way 
on this issue, it points toward requiring proof of racial animus. 
The Fourteenth Amendment, which concededly requires such 
proof, speaks only in terms of action and result. It might have 
been (though it has not been) rather easily construed to forbid 
discriminatory impact, without regard to the intention of the 
defendants. But the Fifteenth Amendment speaks not merely 
in terms of action and result (denial or abridgement of the 
right to vote), but specifies as well that the prohibited denial 
or abridgment must be "on account of” race. The phrase "on 
account of,” we think, is naturally read as referring to the



A -9

reason for the action taken, the intention behind it. We do not 
pretend, however, that this textual argument is conclusive: 
on account o f' could also refer strictly to causation. In this 

sense, if a racial minority is disproportionately affected by, 
say, a poll tax, one might say that the poll tax abridges the 
right to vote on account of, that is, as a result of, race.

So, as usually happens, the words of the Constitution do 
not themselves conclusively answer the question. Nor do the 
parties cite any evidence of context, of the intention of the 
Framers, on this point. We look, therefore, to constitutional 
tradition, to precedent, and here we find a rather clear answer. 
It seems to have been generally accepted, up until about ten 
years ago, anyway, that invidious motivation is an essential 
element of a Fifteenth Amendment claim. An early case 
Guinn v ■ States, 238 U.S. 347, 363-65 (1915) (invali­
dating the "grandfather clause”), clearly says so. One of the 
last major Supreme Court opinions on voting rights before 
the enactment of the Voting Rights Act is, in our opinion, to 
the same effect. In Lassiter v. Nor thampton  Board o f  
Elections, 360 U.S. 45 (1959), a unanimous opinion written by 
Justice Douglas, the Court upheld North Carolina's literacy 
test for voting. In doing so, it used language indicating that 
ehberate racial discrimination was an essential element of 

proof for those attacking the literacy-test statute: the law 
evidenced a legitimate concern for an informed electorate, and 
was "not a calculated scheme to lay springes for the citizen.”

• at 54. This language comes at the end of the Court's 
opinion, in a sort of peroration, and seems clearly intended to 
summarize the essential reason for its holding. And if 
discriminatory impact alone had been sufficient to show a 
constitutional violation, it is hard to see how the literacy test 
could have survived.



In City o f  Mobile v. Holden, 446 U.S. 55 (1980), however, 
the question was squarely presented, and neither side 
mustered a clear majority of the Court. A plurality of four 
Justices, speaking through Justice Stewart's lead opinion, 
firmly advocated the intent standard. Id. at 61-65. Justices 
Marshall and Brennan, in dissent, argued for its rejection. Id. 
at 129-35. Justice Stevens took an intermediate position. Id. at 
90. Justices White and Blackmun, writing separately, seemed 
to assume that intent was a requirement, but did not say so 
unequivocally. Id. at 94-103, 80.

In the face of this uncertain guidance, what is a lower 
court to do? We read the signs as pointing rather firmly 
toward a requirement that intent be proved. Mere numbers, 
short of a majority, are not conclusive, but it is of some 
relevance that more Members of the Court thought intent was 
required in City o f  Mobile, than took the opposite position. 
More importantly, we find the reasoning of the plurality 
opinion persuasive. And pse -Mobi le  authority, as we read it, is 
strongly in accord. This reading of the Constitution has the 
virtue of distinguishing between constitutional claims, which 
require a showing of intent, and statutory claims, which, after 
the 1982 amendments, do not. Under Section 2 of the 
Fifteenth Amendment, Congress has the power, which it has 
exercised in the Voting Rights Act, to prohibit practices 
which would not have been proscribed by Section 1 of the 
Amendment ex p rop r i o  v ig ore .

We hold that the same proof of conscious racial 
discrimination required to show a violation of the Equal 
Protection Clause of the Fourteenth Amendment is also 
required in fifteenth Amendment cases. Accord, Nev et t  v. 
Sides, 571 F.2d 209, 220-21 (5th Cir. 1978). This does not 
mean that racial discrimination must be the sole motive



A -ll

behind the action challenged. It need only be one of the 
motivating factors but for which the action would not have 
been taken. In addition, there will rarely be direct proof of the 
forbidden motive. Courts must be sensitive to circumstantial 
evidence from which a reasonable inference of discriminatory 
intent may be drawn. That a given action has a disparate 
impact, and that State officials knew that it would, can in a 
proper case, depending on the other proof in the record, be an 
important part of such circumstantial evidence — especially if 
there is no reasonable nondiscriminatory justification for 
what has been done. Finally, we should not allow a natural 
reluctance to attribute illicit motives to high State officials to 
deter us from our duty. The burden of proof is not artificially 
high. It is only the ordinary civil burden of a preponderance of 
the evidence.

B.
Plaintiffs first claim of intentionally discriminatory 

action is the 1981 plan of apportionment itself. The evidence 
supporting plaintiffs’ position is substantial, the Board of 
Apportionment had adopted a set of guidelines that included 
an admonition against dilution of minority votes. The Board 
was thoroughly familiar with the political and demographic 
situation obtaining in the various parts of the State, and it had 
available to it census figures on the racial breakdown of each 
township or smaller census unit. Although questions of 
minority representation were brought before the Board 
repeatedly, it took no affirmative action to ensure that any 
districts with a majority-black voting-age population were 
created, apart from one Senate district, one three-member 
House district in Pulaski County, and one House district in 
Jefferson County. Yet, the Board must have known that a 
significant number of additional majority-black districts could 
have been created. Although voting-age numbers were not



A-12

before the Board as such, they could easily have been 
developed. Further, the Board must have known that a 
majority-black district could have been created in Crittenden 
County, but it chose, instead, to create a two-member district 
in which the population would not be majority black. And 
district 100, including almost all of Chicot County, part of 
Ashley County, and two townships in Desha County, could 
easily have been made majority black. Wilmot Township in 
Ashley County could have been substituted for the two Desha 
County townships, and this would have done the trick.

These and similar concerns were definitely brought to 
the attention of the Board. At the Board’s public hearings, 
both black and white citizens strongly advocated single­
member districts. At the public hearing in Pine Bluff, Mr. 
Elijah Coleman, a leading black citizen, urged that single­
member majority-black districts be created, over and above 
the one such district already in existence. A coalition led by 
Ms. Brownie Ledbetter, called the Arkansas Committee for 
Fair Representation, took a similar position. This coalition, 
which included various citizens’ groups like the NAACP, the 
National Organization of Women, the Arkansas Education 
Association, the AFL-CIO, and the Urban League, asked for a 
postponement in the final adoption of the plan, in order to 
allow it to gather information to address the problem of 
minority representation. This request was denied. The same 
group, with the support of Governor White, appeared at the 
final meeting of the Board of Apportionment and asked to 
speak. This request was also denied. The Board went ahead 
and adopted its plan, over the dissent of Governor White, who 
voiced many of the same concerns, among others.

There is, however, strong evidence on the other side of 
the question as well. The factor uppermost in the Board’s



A - 13

mind was that the districts created had to be substantially 
equal in population. Data on the racial makeup of each area 
were available, but they were not in the form of voting-age 
statistics, nor is it apparent that anyone provided the Board 
with information in this form. In addition to population 
equality, the Board was also concerned with natural bound­
aries, political boundaries, and stability of representation. It 
took the 1971 apportionment map as a starting point, 
considered the residence of incumbent legislators, especially 
those who were politically powerful and had seniority, and 
tried to come up with a plan that would disturb the existing 
allocation of political power as little as possible, all while 
complying with the over-arching requirement of one person, 
one vote. The Board did not specifically calculate the minority 
population of each of its proposed districts before adopting 
them, as it could well have done, but the law in effect at the 
time, represented most recently by the City o f  M obile 
decision, did not, in the Board’s view, require it to make such 
calculations. When the Board refused an extension of time 
and adopted its final plan at the end of June 1981, it felt itself 
under some time pressure: the time deadline set by the State 
Constitution, Article VIII, § 4 (February 1, 1981), had long 
since passed. Political pressure was building daily, and the 
Board thought it desirable to bring the matter to a swift 
conclusion. It refused to give floor time to the Arkansas 
Committee for Fair Representation, even though the rule 
against allowing individual citizens to address the Board was 
not uniformly followed, but members of the Board had already 
been approached individually by members of the Committee, 
and it can fairly be assumed that the Board was familiar with 
the Committee’s position.

The rejection of Governor White's views by the two 
Democratic members of the Board, Attorney General Steve



Clark and Secretary of State Paul Riviere, was due in large part 
to the natural political antagonism between the parties. Frank 
Wlrne was only the second Republican to take part in the 
deliberations of the Board of Apportionment since the 
adoption of the Constitution of 1874. It is perhaps un­
fortunate, but it is nevertheless true, that one political party 
will often automatically oppose what another one proposes 
and we think this factor accounted for much of what happened 
here. The two Democrats on the Board thought that 
Governor White was primarily motivated by a desire to 
improve Republican chances of electing members of the 
Legislature, and this is something they wanted to avoid.

jr ‘win me defendants
point of view is the decision to create a multi-member district 
m Crittenden County. The Board had decided, in general that 
multi-member districts were not desirable. Creation of two 
single-member districts in Crittenden County would have 
required that the City of West Memphis be split, but other 
cities, including Little Rock, Pine Bluff, and El Dorado were 
split (On the other hand, multi-member districts were used to 
avoid splitting Fayetteville, Hot Springs, and Jonesboro.)

laintiffs offer Union County, in which El Dorado is located, 
as a particular contrast to Crittenden County. Why, they say' 
were two single-member districts created in Union County’ 
but not in Crittenden County? General Clark's explanation for 
this seeming disparity is that there was a strong community of 
interest throughout Crittenden County, and that Union 
County ,s the largest county in the State in geographic area It 
is true, in addition, that Crittenden County had traditionally 
een given multi-member representation. Under the 1971 

p an, Crittenden County made up a three-member district.

We have pondered this question of fact in the context



A-15

of the enure record, including the live testimony of Attorney 
General Clark and Governor White, the deposition of 
ecretary of State Paul Riviere, and the proof as to the Senate 

Report or ^ m m e r  factors detailed in our first opinion in this 
case. We are not persuaded that plaintiffs’ proof is any 
stronger than defendants’ on the point. Whether there is a 
greater community of interest in Crittenden County as a 
w o e  than in Union County as a whole is certainly debatable 
bu. Attorney General Clark, who comes from Eastern’ 

rkansas, could well have thought so. Eastern Arkansas 
probably is more homogeneous economically and culturally 
than South Arkansas. Both Governor White and Attorney 
General Clark explicitly denied any intention to discriminate 
on the basts of race. These denials cannot, of course, be given 
controlling weight. But neither can they be ignored We are 
not persuaded that the Board was motivated by an afftrmative 
intention to harm black voting rights. Its attitude, instead can 
best be described as indifference. It took no action to enhance 
minority voting rights, but neither did it move in any positive 
way to dilute them. The result, as explained in our first 
opinion, was in fact to dilute them, but result is not the same
as intention. We find that plaintiffs have not carried their 
burden on this issue.

Plaintiffs argue, in addition, that deliberate indifference 
to black voting rights, in the form of a knowing failure to 
correct dilution, ,s the legal equivalent of intentional

T — c10 SUPP° rt ° f thiS POSid° n they cite Rogers v. o g e ,  58 U.S. 613 (1982), a voting case under the Equal
rotection Clause of the Fourteenth Amendment. We do not 

so read the case. R ogers  is written from the point of view of an 
appellate court reviewing a finding of fact that intentional 
discrimination has occurred. The Supreme Court in the 
course of an opinion holding that this finding was not clearly



A-16

erroneous, referred to evidence that defendants knowingly 
maintained an electoral plan that failed to redress acknowl­
edged vote dilution. We do not read R ogers  as creating a new 
legal standard. Rather, it simply describes one kind of 
evidence that can support an ultimate finding of intentional 
discrimination. Here, of course, we function as a trial court, as 
the triers of fact. It is our task to consider all the evidence, 
including evidence of a deliberate falure to correct vote 
dilution, and decide whether intentional discrimination has 
been proved. For reasons we have attempted to explain, we do 
not believe that it has been. We therefore hold that the 1981 
plan of apportionment did not violate either the Fourteenth 
or the Fifteenth Amendments.

C.
In defendants’ view, this should be the end of the case. 

The complaint was brought to challenge, under the Voting 
Rights Act and the Constitution, the 1981 plan of apportion­
ment. If that plan was not unconstitutionally adopted, there 
are no violations of the Constitution justifying equitable 
relief, and preclearance would not be appropriate under 
Section 3(d) of the Act. Other alleged constitutional violations 
with respect to election laws and practices are beside the 
point, because, the argument runs, they were not pleaded in 
the complaint. We reject this view of the law. At least since 
the time of the pretrial conference, which wa held in open 
court, and at which all sides freely discussed all of the legal and 
factural issues, it has been clear that plaintiffs would attempt 
to prove a pattern of statutory and constitutional violations of 
their voting rights. All of the issues were on the table before 
trial, defendants had a full and adequate opportunity to offer 
proof on them, and, if in fact the complaint is not broad 
enough to encompass them, the pleadings should now be 
deemed amended to conform with the proof. See Fed. R. Civ. 
P. 15(c).



A-17

It is also possible to argue, entirely aside from the state of 
pleading and proof, that section 3(c) does not apply at all 
unless a violation of the Constitution is shown with respect to 
the very election law or practice that is the principal focus of 
the complaint. This case was brought to enforce the voting 
quarantees of the statute and the Constitution with respect to 
the plan of apportionment adopted in 1981. The argument is 
that proof with respect to other election laws and practices is 
certainly relevant under the Senate Report and the Z im m er  
principles, but it comes in only to bolster or rebut either side’s 
case on the mam issue: such proof cannot itself be the basis of 
preclearance. We do not agree with this reading of the statute. 
The phrase "violations of the fourteenth or fifteenth 
amendment justifying equitable relief,” which the statute uses 
as the triggering condition for preclearance, is not limited at 
all. If, in the course of their attack on the 1981 plan of 
apportionment, plaintiffs have succeeded in showing other 
constitutional violations, and if those violations under 
equitable principles to be discussed later in this opinion, are 
sufficiently serious and widespread to justify the drastic 
remedy of preclearance, we do not think the statute should be 
read in such a crabbed way as to rule out such relief as a matter 
of law. Certainly the words of the statute do not require such a 
reading, and it would be inconsistent with its broad remedial 
purpose.

III.

We therefore now propose to discuss each of the other 
constitutional violations asserted by the plaintiffs. In each 
instance, it will be our duty to make a finding whether the 
challenged law or. practice was motivated by a racially 
discriminatory purpose, because, as we have explained above, 
that is an essential element of a constitutional violation in this



context. A number of the claims need be discussed only briefly, 
because they have already been fully addressed in court 
opinions, either in our previous opinion in this case, or in 
opinions in other cases. We have, for example, already found 
that the statutory regulations affecting the absentee ballot 
enacted in 1987 were not the result of a racially discriminatory 
purpose. Therefore, no constitutional violation occurred in 
connection with the enactment of this law. On the other hand, 
our previous opinion also found certain local violations, 
including a racially motivated prosecution in Lee County 
against Roy Lewellen and racial intimidation in Desha County 
in 1976 against Carol Willis, a candidate for county judge. 
(Defendants, incidentally, argue that the acts of local officials 
cannot be attributed to the State, and that something done by, 
say, an incumbent county judge is not relevant to the decision 
whether to impose the preclearance remedy in this case. We 
reject this argument. Cities, counties, and other local sub­
divisions are mere creatures of the State. Only the State is 
sovereign, and it can create or abolish local subdivisions at 
will. For purposes of the Fourteenth and Fifteenth Amend­
ments, at least in the voting context, it is our opinion that no 
legal distinction exists between State and local officials.)

Previous cases have resulted in findings of other con­
stitutional violations. We briefly refer to these cases, which 
are cited and discussed in our previous opinion. Perkins v. City 
o f  \Vest Helena, 675 F.2d 201 (8th Cir.), a f f ’d m em ., 459 U.S. 
801 (1982), held invalid as racially motivated the at-large 
system of election of alderman in West helena, a city in 
Phillips County. And S h erp ell v. H umnoke S choo l Dist. No. 5, 
619 F. Supp. 670, 680-81 (E.D. Ark. 1985), app ea l d ism issed , 
814 F.2d 538 (8th Cir. 1987), reached a similar conclusion 
with respect to the at-large election of school-board members 
in the Humnoke School District of Lonoke County.



A-19

Plaintiffs also claim a number of constitutional viola­
tions that we did not discuss in our first opinion. They may be 
conveniently divided into two groups: (1) state laws requiring 
a majority vote for nomination or election to public office; and 
(2) a variety of local incidents and practices in the area of the 
State known as the Delta which, plaintiffs say, were intended 
to and have had the effect of suppressing black political 
activity.

1. M ajority- Vote R equ irem en ts. The principal majority- 
vote requirement now in effect in Arkansas has to do with 
party nominations, rather than elections proper. Under 
Section 5 of Amendment 29 of the Constitution of Arkansas, 
candidates may get on the ballot at a general election in one of 
three ways: by nomination by a party convention; by 
nomination by a party primary election; or by petition. If a 
party chooses (and they commonly do) to select its nominees 
in a primary election, the nominee must receive a majority of 
all the votes cast at the primary election. So, if there are more 
than two candidates, and no one receives an absolute majority 
of all the votes cast in the first, or preferential, primary, 
another primary election, known as the run-off or the general 
primary, must be held. The two top candidates run in this 
second primary, and the winner becomes the nominee. The 
statute carrying into effect this constitutional provision is 
now codified as Ark. Code Ann. § 7-7-202 (1987).

In recent years, such majority-vote requirements have 
become an issue in the context of minority voting rights. Two 
kinds of attacks are made. First, it is claimed that such 
requirements have the effect of reducing minority political 
opportunity, in violation of Section 2 of the Voting Rights



A-20

Act. No such claim is before us io this case.1 Second, it is 
claimed that majority-vote requirements were either adopted 
or maintained for the unconstitutional purpose of sup­
pressing or discouraging black political activity. A substantial 
body of opinion takes the position that ”[t]he majority vote 
requirement has its roots in nineteenth century southern 
white racism. . . McDonald, The M ajority Vote R equ ire­
m en t: Its Use and Abuse in th e  South, 17 The Urban Lawyer 
429, 429 (1985).2

There is no substantial reason to believe that the 
majority-vote requirement in Arkansas was originally enacted 
to prevent black political success. In many Southern states, 
majority-vote requirements were instituted at the turn of the 
century as part of a package of measures designed to 
disenfranchise black voters. See McDonald, supra, at 430-3". 
This was not the case in Arkansas. Amendment 29 wat 
adopted by a vote of the people in 1938, after the nomination 
of Carl Bailey for Governor in 1936 with less than 32% of the 
votes in the Democratic Primary. (At that time, the 
Democratic Nomination for Governor was the practical

■In Whitfield v. Democratic Party of Arkansas, 890 F.2d 1423 (8th 
Cir. 1989), a divided panel of the Court of Appeals for this Circuit held that 
the system of majority-vote party primaries in Phillips County, Arkansas, 
violates Section 2. A petition for rehearing en banc was granted, thus 
vacating the panel opinion. The case was argued before the Count en banc 
on April 10, 1990. on May 4, 1990, the Court of Appeals en banc affirmed 
the judgment of the District Court, 686 F. Supp. 1365 (E.D. Ark. 1988), by 
an equally divided vote. Thus, the Whitfield case itself has resulted (so far) 
in a holding that the majority-vote requirement does not violate the 
Voting Rights Act.

2Mr. McDonald's excellent article also concludes that "abolition of the 
requirement would likely have very little beneficial impact on minorities 
seeking office in majority white jurisdictions, while it could actually work 
against the election of blacks in many majority black jurisdictions.” Ibid. 
This is a question of policy or political effect which is irrelevant to our 
present inquiry into motivation.

■■■*



A-21

equivalent of election, and it still is for some offices.) Blacks 
had already been effectively disenfranchised by the whites- 
only Democratic Party primary, then thought to be legal 
under federal law. The majority-vote requirement was wholly 
unnecessary for this purpose. We find that Section 5 of 
Amendment 29 and its implementing statutes were not 
enacted for racially invidious purposes.3

Plaintiff also argue that the general majority-vote 
requirement for party primaries was m ain ta in ed  for a 
discriminatory purpose. After white primaries became 
unlawful, they say, the State turned to other devices to 
suppress black political activity, including the poll tax and the 
run-off primary. We do not so find. The majority-vote 
requirement is in the state Constitution. The Legislature could 
not then and cannot now change it. So the argument must be 
that, after 1944, the people of Arkansas, but for their desire to 
thwart black political opportunity, would have voted to repeal 
Section 5 of Amendment 29 and go back to the pre-1938 
system of nomination by plurality. We disagree. This 
argument evinces a fundamental misunderstanding of the 
history and nature of Arkansas politics. The run-off primary 
has become a permanent fixture of party politics in this State. 
It reflects a deep-seated attachment to the principle of 
majority rule, one of the cardinal pillars of democracy. It was 
neither instituted nor maintained for racial reasons. As a rule, 
county, district, and State offices are filled by partisan 
elections, and for most of them the Democratic nomination is

’For detailed reasoning supporting this finding, see Whitfield v. 
Democratic Party of Arkansas, 686 F. Supp. 1365, 1367-71 (E.D. Ark. 
1988), aff'd in relevant part, 890 F.2d 1423, 1425-27 (8th Cir. 1989). This 
court's opinion in Whitfield also carefully describes the pre-1938 statutory 
history of the run-off primary in Arkanss. The first statute requiring a 
majority vote was passed in 1933 and had nothing to do with racial 
matters.



still a virtual assurance of election in November. I he run-off 
primary system ensures that the election will not be 
determined by a mere plurality of those who vote in a party 
primary. A similar rule is unnecessary for general elections 
because there are almost never more than two substantial 
candidates in the general election for offices contested by 
party nominees. We reject plaintiffs’ constitutional attack on 
the run-off system for party nominees.

The result is otherwise, however, as to other run-off 
statutes now on the books, Ark. Code Ann. §§ 7-5-106,14-42- 
206, (1987), which apply to general elections for municipal 
and county offices.4 Traditionally, municipal offices, including 
mayor, council member, and municipal judge, were filled by 
nonpartisan election, conducted at the general election in 
November. The person receiving the highest number of votes 
won. A majority was not required. This situation began to 
change in 1973- In November 1972 P.A. (Les) Hollingsworth, 
a black lawyer who later served as an Associate Justice of the 
Supreme Court of Arkansas, was elected to the Little Rock 
City Board of Directors by a plurality. The General Assembly 
responded in its next session, enacting Act 168 of 1973, 
requiring a majority vote for such offices.5

’Section 7-5-106 does not apply to cities having the city-manager 
form of government. Little Rock is such a city. Under Act 905 of 1989, 
however, much the same result will occur. Section 14-41-206 of the 
Arkansas Code, the codification of §§ 1-5 and 8 of Act 905, requires all 
cities and towns to hold a "municipal primary election. If noone receives 
a majority at this election, which is to be held on the sixth Tuesday before 
the general election, the names of the two candidates receiving the highest 
number of votes will go on the ballot at the general election. Thus, all city 
offices in Arkansas are now subject to some form of a majority-vote 
requirement. Act 905 is further discussed at p. 24, infra.

^This Act was later invalidated by the Supreme Court of Arkansas on 
state constitutional grounds. Mean v. City of Little Rock, 256 Ark. 359, 
508 S.W.2d 750 (1974).



A-23

In 1975, a vacancy occurred in the office of Mayor of Pine 
Bluff, and Robert Handley announced his candidacy. The Rev. 
Mr. Handley, a black man, appeared to be a strong contender. 
The Legislature acted promptly. In advance of the special 
election for Mayor of Pine Bluff, it passed Act 269 of 1975, 
requiring a majority vote.6 Mr. Handley was defeated in a 
run-off.

In November of 1982, Leo Chitman became the first 
black person to be elected Mayor of West Memphis. He ran 
first among five candidates but did not get a majority of the 
votes. He unseated a white incumbent. White candidates had 
won by a plurality in the past, and no legislative reaction 
occurred. But when Mr. Chitman was elected Mayor in the 
same way, the Legislature promptly responded. It passed Act 
909 of 1983, now codified as Ark. Code Ann. § 7-5-106, to 
require a majority vote for election to both county and 
municipal offices.

And finally, in 1988 the Rev. Marion Humphrey, a black 
lawyer, was elected Municipal Judge of Little Rock by a 
plurality. Little Rock, see p. 22 n.4 supra, had not been subject 
to a majority-vote requirement. But after Judge Humphrey’s 
election, the Legislature reacted quickly. It passed Act 905 of 
1989, subjecting municipal offices in all cities and towns to a 
majority-vote requirement. See Ark. Code Ann. § 14-42-206.

We cannot ignore the pattern formed by these enact­
ments. Devotion to majority rule for local offices lay dormant 
as long as the plurality system produced white office-holders. 
But whenever black candidates used this system successfully

6This Act was later amended to apply only to first-class cities with 
populations within a narrow limit set by the amendment. Act 175 of 1977. 
The amended Act was later invalidated by the Supreme Court of Arkansas 
on state constitutional grounds. Ferguson v. Brick, 279 Ark.288, 652 
S.W.2d 1 (1983).



A-24

— and victory by a plurality has been virtually their only 
chance at success in at-large elections in majority-white cities
— the response was swift and certain. Laws were passed in an 
attempt to close off this avenue of black political victory. This 
series of laws represents a systematic and deliberate attempt 
to reduce black political opportunity. Such an attempt is 
plainly unconstitutional. It replaces a system in which blacks 
could and did succeed, with one in which they almost certainly 
cannot. The inference of racial motivation is inescapable.7

2. Local Violations. Finally, plaintiffs argue, citing a 
large amount of anecdotal and other evidence, that local 
officials have taken numerous actions for the purpose of 
thwarting black political opportunity. We have already 
referred to the 1976 race for County Judge in Desha County 
and to the 1985-86 Lewellen case in Lee County. A number of 
other situations and incidents need to be examined.

The most convenient way of discussing the evidence with 
respect to the claimed local violations is to consider the 
testimony with regard to each county in the affected area of 
the State. This method of analysis will prolong this opinion, 
but the questions are important, and the parties and the public 
are entitled to detailed findings of fact.

7This does not mean that our decree in this case will enjoin the 
enforcement of the existing run-off statutes for county and municipal 
offices. For one thing, the evidence of illicit motivation applies only to 
municipal elections in portions of the State with substantial minority 
populations. And for another, plaintiffs at the oral argument at the close of 
the trial in this case disclaimed any desire for such relief. They bring up the 
series of municipal run-off statutes only as constitutional violations 
justifying preclearance under Section 3(c). Whether and to what extent 
these statutes may continue to be validly applied must be left to a case-by- 
case determination in the future. At least this much, though, can be said: If 
a black candidate leads in the first election and then is defeated in a run-off 
required by either Ark. Code Ann. § 7-5-106 or § 14-42-206, the election 
will be vulnerable to a strong constitutional challenge.



A-25

At the outset, we put to one side Pulaski, Jefferson, and 
Ouachita Counties. No substantial evidence of manipulation 
of the electoral system by local officials with the purpose of 
thwarting black political activity was presented with respect 
to any of these three counties. The evidence with respect to 
nine other counties deserves discussion, however, and we now 
describe that evidence.

P hillip s coun ty. Within two weeks of the 1986 primary 
election, a polling place for a very large black ward was moved. 
No personal notice of the move was given to voters. The 
polling place had been at the Catholic Church, but no notice 
was placed on the door of the church to indicate the new 
polling place, the Arkansas Street Fire Station. On the other 
hand, the move was only a distance of one and one-half blocks, 
and notice of the move was published in the newspaper. This 
move confused some voters, and this effect was likely more 
pronounced among black voters, a group in which the 
illiteracy rate is higher, but we are not persuaded that the 
polling places were moved for the deliberate purpose of 
reducing the black vote. There is no evidence that any 
different procedures have ever been followed with respect to 
the moving of polling places, and we believe the incident 
represents insensitivity to the problems of poor voters, rather 
than a conscious effort to impede black participation in the 
political process.

There was also testimony of confusion in the general 
election of 1986 with respect to "voter aids.” This phrase 
refers to written material, such as sample ballots, that are 
customarily handed out to some voters immediately before 
they go to the polls. The use of such "aids” is legal, but it is not 
legal to electioneer in a polling place, so if voters are observed 
showing the "aids” to other voters in a polling place, an



arguable violation of election laws takes place. In one instance, 
the Chairman of the Election Commission had instructed an 
election official to take away the voter aids, claiming that they 
were being flashed around. After a protest, this instruction 
was withdrawn. Again, we find no persuasive evidence of 
discriminatory intent. We note that there are now eleven 
black members on the Democratic Central Committee for 
Phillips County, and this is significant, because the Demo­
cratic Party runs its own primaries, and also controls two out 
of the three seats on the County Election Commission, which 
runs the general elections. There are 20 to 25 volunteer 
deputy voter registrars in Phillips County, they are permitted 
to go anywhere in the County to register voters, and none of 
them has ever been terminated. Nor has anyone ever 
requested to be made a volunteer deputy and been refused. 
The volunteer deputies are split almost evenly by race. 
Although litigation was necessary to produce the volunteer- 
deputy system, it now seems to be working well.

Lee County. At one time, discriminatory interference 
with black voters in Lee County was widespread. In evidence 
before us is the report of the Arkansas State Advisory 
Committee to the United States Commission on Civil Rights, 
published in March of 1974. PX 59- The report concludes, 
among other things, as follows:

[BJlacks in Lee County were discriminated against 
through the following means:
1. the interference of black poll watchers by local law 
enforcement officials and election officials;
2. the tampering of ballot boxes;
3. the harassment and intimidation of black voters; and
4. the failure of the election commission to provide for 
adequate accommodations.

PX 59, p. 34.



A-27

I*

In an order filed before the trial of this case, we overruled 
plaintiffs motion that we take judicial notice of the con­
clusions contained in the report. The report is in evidence, 
however, as a report of an official body charged by statute with 
the responsibility of making findings. See fed. R. Evid. 803(8); 
B eech  A ircraft Corp. v. Rainey, 109 S. Ct. 439 (1988). We find 
the report persuasive evidence. Similar events, including the 
attempt to intimidate Roy Lewellen in his race for the Senate, 
have continued to occur. But there is no doubt that the 
situation is changing for the better. The prosecuting attorney 
who was involved in the harassment against Mr. Lewellen is 
no longer in office. His succcessor is one of the few white 
public officials in the State who have publicly endorsed a black 
candidate for office, and he has appointed a black lawyer, Oily 
Neal, as deputy prosecuting attorney for Lee County. Another 
black lawyer, Kathleen Bell, has become a Circuit and 
Chancery Judge, exercising juvenile jurisdiction. Places that 
blacks (and some whites) consider inhospitable — for 
example, a country-and-western nightclub — have been used 
as polling places, but, as in the case of Phillips County, we are 
not persuaded that this choice was deliberately designed to 
reduce the black vote. On the whole, though the question is 
close, we are not persuaded that there now exist constitutional 
violations justifying equitable relief. The report of the 
Advisory Committee describes a situation that is more than 15 
years old, and the most recent constitutional violation, the 
Lewellen case, has been remedied both by a preliminary 
injunction issued by this Court and by the subsequent 
withdrawal of the charges.

C rittenden County. We heard a great deal of testimony 
about political conflict in this County, some of it breaking 
down, in practice, along racial lines because of the prevalence 
of block voting by both whites and blacks. The conflict



A-28

revolves around details of election practices, including 
appointment of election officials, the technicalities of voter 
registration, purging of voter lists to eliminate voters who 
have died, moved away, or simply have not voted, and the like. 
One incident in dispute involved the mailing out of absentee 
ballots shortly before an election. Some of them were mailed 
out with insufficient postage, and the charge was made that 
Sally Brady, the County Clerk (the official in charge of voter 
registration and related matters), deliberately left off the 
postage, in order to ensure that the ballots would not be 
deliverd. This incident is a good example of the high level of 
distrust in political matters between the races in Crittenden 
County. Each side is willing to believe the worst about the 
other. In this particular case, we find no deliberate vilation by 
the County Clerk. She testified that the proper postage was 
left off by mistake, not deliberately, and we believe her. All of 
the voters in question eventually got their ballots, and the 
County Clerk told voters that if they had to pay postage due, 
she would reimburse them. A black deputy voter registrar was 
terminated, but Mrs. Brady believed, perhaps wrongly, that 
she had good cause. A white deputy voter registrar has also 
been terminated.

Politics in Crittenden County is serious, often rough. 
Fierce battles between entrenched forces, known to the 
opposition as a "machine,” and challengers are frequent. 
Some of these battles, but by no means all of them, are racially 
polarized. Those who are in office defend themselves 
vigorously. Perhaps they have used the election laws as tools 
in this fight. Perhaps they have interpreted these laws strictly 
in order to make political insurgency difficult. We do not 
believe, however, that this activity is especially keyed to race. 
White candidates and groups challenging the political 
establishment face the same hurdles. While we could wish for



A -29

more trust among citizens, we do not find any present 
violations of the Fifteenth Amendment justifying equitable 
relief in Crittenden County.

Chicot County. Problems with respect to the location of 
polling places are similar to those described above in 
connection with Phillips County. Some polling places have 
been moved on short notice, and some of them are in places 
inconvenient to black voters. In this regard, however, we 
credit the testimony of Kathy Johnson, County Clerk of Chicot 
County. In her view, good reasons existed, reasons having 
nothing to do with race, for each change that was made. 
Greater efforts could be made to locate polling places in areas 
where black people live, and public officials have a duty to 
become familiar with all parts of their constituency, so that all 
parts can be properly served. But we are not persuaded that 
problems with polling places in Chicot County have been due 
to intentional racial discrimination.

There were also complaints that the political life of the 
County is dominated by one white family, the Gibsons. 
Charles Sidney Gibson is Chairman of the Democratic Central 
Committtee and City Attorney of Dermott. He also serves as 
Chairman of the County Election Commission, traditionally a 
position assumed by whoever is Chairman of the Democratic 
Central Committee. The State Senator, Jack Gibson, spon­
sored a bill in the Legislature to locate a landfill in the area. 
The bill was not popular with black citizens, who objected to 
the landfill s location. We see no constitutional violation, with 
respect to voting or otherwise, in this incident. In the end, the 
bill did not pass, in large part because of the efforts of Bynum 
Gibson, a State Representative. The Gibsons, it seems, like 
many families, are not so monolithic as they appear to others. 
In fact, one of the plaintiffs’ witnesses praised Representative



A-30

Bynum Gibson for his responsiveness to voters, including 
black voters.

(This paragraph in the original opinion 
was subsequently deleted on the district 
court’s own motion.)

Finally, difficulties with regard to "voting booths” were 
discussed at the trial. Voting in Chicot County' is by paper 
ballot. In some precincts, voters receive their ballots and sit at 
tables to mark them. It is possible for election officials to look 
over the shoulders of voters during this process. At some 
times and at some precincts there are booths that give a 
measure of privacy, or "frames,” apparently some sort of 
divider between portions of the table at which votes are cast, 
for the same purpose. The absence of these booths or frames 
has caused some black voters to feel intimidated, lest their 
votes should become known. We do not doubt that this can be 
a serious problem, and election officials should do their



A-31

utmost to see that the privacy of the ballot is respected. We are 
not persuaded, however, that these problems are more 
prevalent in predominantly black precincts than in pre­
dominantly white precincts, or that they are the result of an 
intentional effort to intimidate black voters.

We note also that deputy registrars are now being freely 
appointed in Chicot County, and this is a development of great 
significance for the future. There are 12 volunteer deputies, 
ten of whom are black. Their ability to register voters is in no 
way restricted. The County Clerk has never refused to appoint 
any person who volunteered, nor has she ever terminated any 
volunteer deputy.

In sum, we conclude that no present constitutional 
violations with respect to voting rights, justifying equitable 
relief, have been proved in Chicot County.

M ississipp i County. Polling places have been moved, 
and this causes confusion among voters, probably more 
confusion among black voters than among whites. Some 
election officials are employers of some voters, and voters fear 
a lack of privacy. As Lonnie Middlebrook, Jr., a member of the 
Blytheville City Council, testified, such fear is in itself a form 
of intimidation. On the other hand, Mr. Middlebrook knew of 
no instance in which anyone’s vote actually became known. 
This sort of apprehension, resulting from natural fears on the 
part of those in a position of economic dependence, can be a 
serious problem, but it seems to us more in the nature of 
disparate impact than of deliberate discrimination. There was 
no testimony of any actual threat against a voter.

Many blacks have served as election officials, but they 
tend not to be appointed to serve at white boxes, while white



A-32

people are represented as officials at all boxes. But according 
to JoAnn Morgan, County Clerk of Mississippi County, there 
is actually a shortage of election officials, and she is seeking 
volunteers for this purpose. She has never received a 
complaint from a black person concerning the conduct of a 
white poll worker. Polling places have been changed, but a list 
of the changes is printed in the newspaper, and the County 
Clerk has written many letters to individual voters explaining 
to them where they should vote. The polling places have also 
been consolidated for some elections, but this occurs in school 
elections and special elections conducted on a single issue, 
when the turnout is traditionally low, so there is a legitimate 
reason for this consolidation. There are 46 active volunteer 
deputy registrars, 18 of whom are black. Their movements are 
not restricted at all, except that the County is divided into two 
districts, Osceola and Chickasawba, which means that there 
are two separate sets of voter-registration books. A deputy 
registrar is on call at all times in the Social Services office. Ms. 
Morgan has never turned down any qualified elector who 
wanted to be a deputy registrar, and she has asked publicly 
numerous times for volunteers. We find no present consti­
tutional violations with respect to the right to vote in 
Mississippi County.

St. Francis County. Larry S. Bryant, a former member of 
the City Council of Forrest City, testified about problems 
experienced in his political races. In 1984, when he was 
re-elected by a close margin against a white opponent, a 
50-vote error was made in the initial count. After Mr. Bryant 
complained, though, the error was corrected. In 1986, he ran 
for Mayor and lost. During this campaign, his life was 
threatened, and he received phone calls using racial epithets 
and threatening to "blow him away.”



A-33

These incidents do not amount to constitutional vio­
lations. There is no evidence that the telephone calls or 
threats came from any public official, or anyone acting in 
concert with or with the knowledge of a public official. 
Threats of this kind, we agree, are extremely serious, and their 
signficance should not be minimized. They amount to 
criminal violations of federal statutes designed to protect the 
right to vote. But in the absence of a showing of state action, 
they are not violations of the Fifteenth Amendment.

Desha County. We have already referred to the cam­
paign of Carol Willis for county judge. We note, in addition, 
the testimony of his brother Andrew James Willis. Andrew 
Willis described an incident at a polling place on election day 
in 1976. A white election official pulled a knife on him and had 
to be restrained by others who were present. The police were 
there, but they made no attempt to investigate the incident. 
Mr. Willis tried to press charges, but the deputy prosecuting 
attorney, who was the son-in-law of the incumbent county 
judge (Carol W illis’s opponent), threatened to charge 
Andrew Willis with criminal trespass instead. After the 
election, the family business suffered, partly because of official 
retaliation by the County.

There have unquestionably been serious constitutional 
violations with respect to the right to vote in Desha County. 
There is, however, no evidence of any specific incident more 
recent than 1976. The county judge who defeated Carol Willis 
retire early in the 1980s. Registrars have now been appointed, 
and some of them are black, though this appears to be a 
relatively recent development. The issue is whether the 
constitutional violations proved justify equitable relief in the



present-day situation. One relevant indication is the im­
proved atmosphere in which Carol Willis’s race for circuit 
clerk occurred, in 1978. This race was free of the racial abuse 
and flare-ups that characterized the 1976 race. Mr. Willis’s 
white opponent ran a good campaign. The voting patterns 
were essentially the same as in 1976. We conclude that the 
need for equitable relief in 1990 has not been proved.

A shley County. We heard the testimony of Clinton 
Harris, who has been Mayor of Wilmot for three years. In 
1976, when Mr. Harris first ran for the Wilmot City Council, 
his white opponent withdrew because he did not live within 
the city limits. The town was then rezoned in order to enable 
another white man to run against Mr. Harris, and this white 
opponent was elected. Then, in 1986, a group of blacks, acting 
on their understanding of the law, were helping voters in a 
polling place. A large gathering of whites began to disrupt the 
voting. They announced that they were changing the laws at 
this polling place only, to prevent voters from getting help in 
this manner. One member of this group physically prevented 
Mayor Harris from re-entering the polling place. Mayor 
Harris has also experienced serious difficulties in receiving an 
appointment as a deputy registrar. He was refused at least 
eight times, finally obtaining the appointment in September 
of 1986. He was then able to register 60 people in two days, all 
black, and he credits his election victory to that fact.

Mayor Harris’s testimony was not rebutted. We found 
his believable. We therefore find that there have been 
constitutional violations of the right to vote in Ashley County. 
Many of the people who took part in the 1986 incident 
described above were private citizens, but the Sheriff of the 
County apparently cooperated with them, as did the Election 
Commission, which is all white. Whether this is the sort of



A-35

proof that would justify the remedy of preclearance, is a 
question we shall discuss later in this opinion.

Columbia County. The Reverend Ellihue Gaylord, Sr., 
State President of the NAACP and a member of the 
organization s national board, testified about political con­
ditions in Columbia County. Before 1982, he said, "we tried” 
to be appointed deputy registrars, but the County Clerk 
turned us down.” Suit was filed, and as a result the Reverend 

Mr. Gaylord and two other black people were deputized. 
There are now 12 deputy registrars in the County, 11 of whom 
are black, and their efforts have registered over 3,000 voters 
since 1982. There is no real evidence in this testimony of any 
constitutional violation, and we find none.

IV.

I he facts we have found in this and our prior opinion set 
the stage for the question we must now answer: Should the 
State or any part of it be subjected to preclearance? The 
governing words of the statute, 42 U.S.C. § 1973a(c), are 
these: if the court finds that violations of the fourteenth or 
fifteenth amendment justifying equitable relief have occurred 
within the territory of such State or political subdivision, the 
court, in addition to such relief as it may grant, shall retain 
jurisdiction for such period as it may deem appropriate and 
during such period no voting qualification or prerequisite to 
voting or standard, practice, or procedure with respect to 
voting” may be changed without preclearance. "Preclearance” 
means either a finding by this Court that the qualification, etc., 
does not have the purpose and will not have the effect of 
denying the right to vote on account of race or color, or in 
contravention of the Voting Rights Act, or a falure by the 
Attorney General of the United States to object to the



A-36

qualification, etc., within 60 days.

We agree with plaintiffs that both State and local 
violations of the voting guarantees of the Fourteenth and 
Fifteenth- Amendments must be taken into account. The 
statute does not say that the State or its officials must be guilty 
of the violations, but only that the violations must "have 
occurred w ith in  th e  t e r r i to r y ” of the State. (Emphasis ours.) 
And besides, as we have already held, officials of local 
governments are State officials for present purposes; local 
governments are arms of the State and exist only at its 
sufferance. We also think that more than one violation must 
be shown. The statute used the plural ("violations"), and it 
would be strange if a single infringement could subject a State 
to such strong medicine.

Beyond that, authority is scant. We are aware of no 
reported case discussing the standards for imposing pre­
clearance. Indeed, there seems to be no case in which a court 
has subjected an entire state to preclearance (which is what 
plaintiffs request here, at least as theeir first choice), with the 
exception of Sanchez v. Anaya, Civ. No. 82-0067M (D.N.M.) 
(three-judge court) (decree entered December 17, 1984). 
There, the Court found the State’s legislative apportionment 
in violation of the Voting Rights Act and required pre- 
clearance of any new redistricting plan for a period of ten 
years. Preclearance was not required as to any other voting 
laws or practices, so the case seems to indicate that 
preclearance, if it is to be imposed at all, need not be an 
all-or-nothing proposition. On the other hand, the final 
judgement was entered by stipulation, a circumstance which 
reduces its weight as a precedent.

There have unquestionably been some constitutional



A-37

violations (plural) in Arkansas, even if the inquiry is limited 
to recent times. The series of four majority-vote statutes 
passed to convert to a run-off system those plurality elections 
in which blacks were succeeding, establishes this beyond a 
doubt. Is preclearance then mandatory under the statute? It 
could be read that way. It says that if violations justifying 
equitable relief have been shown, the court "shall” retain 
jurisdiction, and preclearance shall apply during the period 
for which jurisdiction is retained. Plaintiffs have not 
requested equitable relief with respect to these particular 
majority-vote statutes, except for preclearance itself, but 
equitable relief in the nature of an injunction or a declaratory 
judgment would clearly be justified especially to prevent the 
statutes from being used in the future to deprive a black 
candidate receiving a plurality of the office for which he or she 
was running.

We do not think that the word "shall” should be read to 
strip us of all discretion.8 It is standard doctrine that statutes 
stating that courts "shall” grant equitable relief upon the 
occurrence of a certain state of affairs are not literally 
construed. Rather, such statutes are interpreted against "a 
background of several hundred years of history.” The H echt 
Co.v. B ow les, 321 U.S. 321,329 (1944) (Section 205(a) of the 
Emergency Price Control Act of 1942, 56 Star. 23, providing 
that an injunction "shall be granted” if someone has engaged 
in or is about to engage in a violation of the statute, held not to 
override traditional principles of equitable discretion.)

8Counsel for plaintiffs, if we understood them correctly, disclaimed in 
open court the position that the word "shall” has the effect of removing all 
discretion. They took the same position in their post-trial brief, p. 75: "a 
State as a whole may be placed under preclearance if” constitutional 
violations are found. (Emphasis ours.) They also indicated a willingness to 
accept the exception from preclearance of local changes in jurisdictions 
without a substantial minority population. Id. at 75, 77-78.



A-38

e essence of equity jurisdiction has been the power of 
r ie Chancellor to do equity and to mould each decree to 
t ie necessities of the particular case. Flexibility rather 
than rigidity has distinguished it. The qualities of mercy 
and practicality have made equity the instrument for nice 
a justment and reconciliation between the public inter­
est and private needs as well as between competing 
private claims. We do not believe that such a major 
departure from that long tradition as is here proposed 
should be lightly implied.

M at 329-30. Section 3(c) of the Voting Rights Act, moreover, 
es not establish violations” s im p lic ite ra s  the predicate for 

preclearance, but "violations ju s t i fy in g  equ itab le r e l i e f .”
( mphasis ours ) It ,s at least a permissible construction of 
this language, ,f not a required one, that whatever relief is 
granted, including preclearance, must be measured against 
traditional equitable remedial principles. So "we resolve the

3 h T T f  SeCti° n [3(C)J m faV° r ° f that -nterpretation 
enfo 3 °PP°rtunity for equity courts to treat

orcement proceedings under this . . . legislation in 
accordance with their traditional practices, as conditioned by 

e necessities of the public interest which Congress has 
soug t to protect. The H echt Co. v. Bowles, supra, 321 U.S. at

at criteria should guide us in the exercise of this 
iscretion. ithout meaning to exhaust the universe of 

possibly relevant factors that might be shown i„ fucure cases> 
present record suggests the following: Have the violations

t i m e j T ' T '  a"d ,repeated? Are they recent or distant in 
re t ey the kinds of violations that would likely be

prevented in the future, by preclearance? Have they already
been remedied by judicial decree or otherwise? How likely are



A-39

they to recur? Do political developments, independent of thi- 
itigation, make recurrence more or less likely? Th u

X f we have jn rai ̂

oth sides: the interest of the plaintiffs in vindication of theit 

;  »  V° 'e' ^  * .  most precious of a

-  T  o fhe d 7 Cer  aI ° f ^  SpeeCh « •  * e
the State c h ndan'S “ ^ 'x n in g  ehe sovereignty of 
the State which ,s itself an important part of the L
stitutional balance against the exercise of arbitrary power by

y portion of government national or state. A h iJL lfw e  are
min u ithat both the Constitution and the Voting Rights Act
require that if violations have been found, and if pro“
re le in t e form of preclearance is indicated by the other

Xh" ° X  C“ e’ ' he " ShK ° f ' he Pkintiffs must prevail The whole purpose of the Fourteenth and Fifteenth Amend
ments and the Voting Rights Act is to override"rate a ^ n '  

to th w a rT th lp m ^ se  *“ * S° V e r e i g n I y b e

Having fully considered all of these factors in the light of 
he entire record, we conclude that a limited p r e c l e a X  
me y is required. Certain of the constitutional violations 

ound including those shown by the Perkins, Humnoke and

A Z n Z T i e ' haVea‘readyb' enremedied* 'ud idalac’riota.consent decree now requires the ready appointment of 
deputy voting registrars, and black people re , 
represented in these appointments. There have beetT n l

x r  x x r ecress-^  :exist m Lee County m the 1974 reoort of

leasT'nT C°mmirree ”  the Civil Ri« h «  Commission are at 
east in large part, a thing of the past. The same is true to

X e h  7 '  the ‘° Cal Vi0'ali0nS W  have f° “nd m Ashley 

mam, not of explicit elections laws or practices, but X o f



A-40

individual actions by officials charged with administering 
laws and practices neutral on their face. This king of violation 
would not be affected by a preclearance requirement and 
therefore furnishes no strong basis for imposing it. The series 
of majority-vote statutes passed for the purpose of sup­
pressing black political success, however, demands strong 
action. We therefore hold that any further statutes, ordi­
nances, regulations, practices, or standards imposing or 
relating to a majority-vote requirement in general elections in 
this State must be subjected to the preclearance process. (The 
majority-vote requirement for nomination in party primaries 
is not affected by this holding.) In all other respects, plaintiffs’ 
request for statutory preclearance under Section 3(c) will be 
denied. It would perhaps be within our discretion to impose 
statutory preclearance on a broader basis, but for the reasons 
given we have chosen not to, at least for the time being. In 
making this choice, we take into account, in addition to the 
other factors mentioned, that the pace of political change in 
this State is quickening. We credit, in this regard, the 
testimony of Governor Clinton at the trial. We also note an 
increasing trend, taking place in many areas of the State, of 
conversion of at-large election systems to single-member 
systems. This trend is evident in litigation affecting school- 
board elections and municipal elections. It was already 
positive law with respect to elections for quorum courts, the 
legislative bodies of counties.

We deem it appropriate to impose one further item of 
relief in the nature of preclearance, not as a matter of statute, 
but as a matter of inherent equitable power. After the 1990 
Census, the Board of Apportionment will face once again the 
task of drawing district lines for the House and Senate. We 
direct that no plan of apportionment so adopted may go into 
effect until 60 days have elapsed from the date of its final



A-41

1

)

t

!

adoption by the Board. This Court will retain jurisdiction, 
within that time period, for the purpose of entertaining any 
challenge by the plaintiffs in this case to such plan. If no such 
challenge is forthcoming, the plan may go into effect, subject, 
however, to the right of any aggrieved citizen to challenge it in 
an appropriate action at a later time. This retention of 
jurisdiction is not required by Section 3(c) of the Act, but 
plaintiffs have requested it, in the alternative, and we believe 
it is appropriate under the facts of this case. In fact, such a 
period of vulnerability, so to speak, should work to the 
advantage of the State, because if the plan adopted in 1991 
survives this hurdle, the chances of its being allowed to govern 
undisturbed until the Census of 2000, will be, as a practical 
matter, greatly enhanced.

An appropriate decree is being entered today to carry out 
the findings and conclusions expresssed in this opinion.

It is so ordered.

/s/ Richard S. Arnold 
United States Circuit Judge

/s/ George Howard, Jr.
United States District Judge

EISELE, Chief District Judge, dissenting.

In troduction
While throughout the world the people of nation after 

nation are rejecting the idea of minority rule, we today find a 
United States district court holding that the State of Arkansas 
may be punished for its perceived motive in adopting laws 
which give expression to that most basic of democratic 
principles: majority rule.

jl
11 •ii



A-42

As I see it, my brothers, in their construction and 
application of the law and the Constitution, are unconsciously 
leaning over backward in their sincere effort to help those 
believed to be the victims of racial discrimination. And when 
one leans over backward, one is likely to fall, and, when one 
falls, others in the way will likely be hurt. That is what I see 
happening here.

By finding certain state run-off election laws violative of 
our federal Constitution, even though the legislative histories 
and the intent of these state enactments remain undeveloped 
and their discriminatory effects undemonstrated, the decision 
today occasions an even greater wrong than the one it seeks to 
remedy by casting a chilling and dark shadow over the 
erstwhile revered concept of majority-rule. The Court is 
wrong in believing that it has such power and authority. It is 
wrong in its assessment of the legislative motive for the 
enactment of these statutes. And it is wrong in its decision to 
impose the draconic sovereignty-denying remedy of pre­
clearance. I dissent.

P relim inary Summary
While I agree with some of the majority’s findings and 

conclusions, I dissent from its major holdings as set forth in its 
latest opinion in this voting rights case. On this occasion, the 
issues before the Court are the alleged violations of the 
Fourteenth and Fifteenth Amendments and, if such violations 
are found to have occurred, then the remedy to be imposed. I 
agree with the majority on the correct standard of review for 
violations of these Amendments and with the majority’s 
findings that the defendants did n o t  violate the Constitution 
in formulating the 1981 redistricting plan. My colleagues have 
concluded that the enactments by the Arkansas General 
Assembly of four majority-vote requirement statutes violated



A-43

the Constitution. I vigorously dissent from those conclusions, 
but I also point out that, even if the factual record in this case 
permitted same (which it does not), that record would not 
constitute a proper predicate for any  relief in this case — 
much less the harsh and rarely used remedy of preclearance!

It is clear to me that these majority-vote statutes are not, 
and have never been, properly before the Court as inde­
pendent bases for the remedy of preclearance. And I am 
convinced that the defendants were not fairly on notice that 
any claim was being made that the enactments of such statutes 
constituted independent bases for such relief. I also do not 
believe that there is sufficient evidence of racial animus 
surrounding the passage of these statutes to justify the 
conclusion that the enactments thereof violated the Four­
teenth or Fifteenth Amendments. And, even if there were, it 
is my further opinion that under our United States Consti­
tution, federal courts have no authority to prohibit or punish 
the enactment by the state of such run-off statutes. Nor did 
Congress intend that federal courts have such power. And, 
disturbingly, while the majority’s opinion undermines the 
State’s decision to require election by a majority rather than a 
plurality, it at the same time provides no clear, principled 
guidance to voters, candidates or legislators as to the effect of 
using the challenged statutes in future elections. My views on 
these matters are strong and I set them out at length.

I. AGREEMENT ON CRITICAL CONSTITUTIONAL 
ISSUES I

I will first indicate in more detail the areas in which I find 
myself in agreement with the majority. I concur with the 
conclusion that proof of conscious intent to discriminate on 
racial grounds is required to show a violation of the Equal



A-44

t r  ' • 5  5-_- S V -;

Protection Clause of the Fourteenth Amendment, and also 
with the conclusion that the same proof is required under the 
Fifteenth Amendment. Judge Arnold has thoroughly can­
vassed the cases in this area. As he notes, the critical Supreme 
Court opinion, City o f  Mobile v. Bolden, 446 U.S. 55 (1980), is 
a plurality decision. I nonetheless agree that more justices 
adopted the intent standard than opposed it. I also agree that 
racial discrimination need not be the sole motivation; it need 
only be one of the motivating factors but for which the action 
would not have been taken.

I also concur as to the finding that plaintiffs have failed to 
carry their burden of proving intentional discrimination in 
the formulation of the redistricting plan in 1981. I would go 
one step further on the evidence and find affirmatively that 
racial discrimination was not one of the motivating factors in 
the formulation of that plan. I believe that the members of the 
Board were primarily driven by the "one person, one vote 
requirement, the traditional factors which they identified as 
their principles of reapportionment (including the protection 
of incumbents1) and simple inertia.

I agree with the majority’s factual finding that the Board 
was not motivated by any intention to harm black voting 
rights. But I also agree that the Board did not affirmatively 
seek out ways and means to enhance minority voting power. 
At the same time, I would find that the Board did not in fact

'See McMillan v. Escambia Co., 638 F.2d 1239, 1245 (5th Cir.), cert, 
dismissed, 453 U.S. 946 (1981), vacated in part, 688 F.2d 960 (1982), 
vacated and remanded, 466 U.S. 48 (1984):

[T]he desire to retain one’s incumbency unaccompanied by other 
evidence ought not to be equated with an intent to discriminate 
against blacks qua blacks.

Id. at 1245.



A-45

dilute black voting rights in the 1981 redistricting plan. 
Dilution assumes some benchmark. There was no showing 
that the 1981 plan decreased black voting power from that 
which existed under the 1971 plan (with the possible 
exception of H.D. 100). See J e f f e r s  v. Clinton, 730 F.Supp. 196 
(E.D. Ark., 1990) (Eisele, J., dissenting). And, even assuming 
that deliberate indifference to black group voting power were 
the legal equivalent of intentional discrimination — which it 
is not — I would conclude that there is no evidentiary basis for 
the finding of any "knowing failure to correct dilution” 
because, as I understand the evidence, the defendants did not 
know that there was any "dilution” to be corrected or even 
that they might be "diluting black voting rights” simply by not 
taking the opportunity to enhance black group voting power, 
i.e., by not taking the opportunity to create super-majority 
black voting age population (VAP) districts.

And so, I fully agree with the majority’s holding, "that 
the 1981 plan of apportionment did not violate either the 
Fourteenth or Fifteenth Amendments.” Majority op. at 15. In 
my view this holding completely disposes of the issues 
remaining in the case and requires the dismissal of the 
plaintiffs’ constitutional claims and the denial of all remedies 
based thereon. The majority believes otherwise. It looks for, 
and finds, other constitutional violations and then uses them 
as a predicate for preclearance.

II. ARE THESE OTHER CONSTITUTIONAL ISSUES 
PROPERLY BEFORE THE COURT?

In the majority’s view, a determination that the 1981 
apportionment was not motivated by invidious discrimina­
tory intent does not preclude further inquiry into whether 
preclearance under Section 3(c) may nonetheless be imposed



A-46

on the basis of "[ojther alleged constitutional violations” 
found within the State of Arkansas even though they were not 
the focus of plaintiffs’ complaint. See Majority op. at 15. The 
majority finds as the predicate for "limited preclearance” the 
enactment of four majority-vote election laws applicable to 
municipal and county-wide offices. The majority reaches this 
conclusion despite the fact that the plaintiffs’ suit clearly 
focused not on these statutes (only one of which was in effect 
when the suit was filed), but rather upon the 1981 
apportionment, and despite the fact that this rationale for 
imposing the admittedly drastic remedy of preclearance was 
never raised by the plaintiffs before or during the trial of this 
case.

A. Preclearance Under th e  Voting R ights Act o f  1963 
Section 5 of the Voting Rights Act of 1965 makes a 

legislative finding that voting rights violations occurred in 
states where literacy tests were in effect in November of 1964 
and where voter turnout in the presidential election of 1964 
was less than 50 percent of the voting age population. States 
automatically "covered” by this provision were affected in 
several ways under the scheme contained in § 4(b) of the Act. 
All literacy tests were suspended for a period of five years; 
federal election observers could be dispatched to monitor 
elections; and most significantly, the affected political 
subdivisions were required to submit all new "voter qualifi­
cations] or prerequisite^] or standard[s], practices[s] or 
procedures[s] with respect to voting” to the District Court for 
the District of Columbia or to the Attorney General for 
"preclearance.” See 42 U.S.C. § 1973b. Any such proposed 
change can be implemented only upon a finding by that court 
or the Attorney General that the provision is not violative of 
the Act. The entire territories of seven states, as well as 
portions of several others met the two pronged test and were,



therefore, subjected to the strictures of Section 5. See S. Rep. 
No. 94-295, Voting Rights Act of 1965 — Extension, 94th 
Cong. 1st Sess. (1975), r ep r in ted  in 1975 U.S. Code Cong. & 
Admin. News 774, 778.

Section 3(c) provides for similar, though not identical 
remedies, which are to be imposed by district courts on states 
or their units where voting related violations of the 
Fourteenth or Fifteenth Amendments are shown. Preclear­
ance under Section 3(c) is granted by the local district court, 
which then retains jurisdiction "for such period as it may 
deem appropriate.” 42 U.S.C. § 1973a(c) (1981).

Section 3(c) applies specifically to those "pockets” of 
discrimination that exist outside those jurisdictions that were 
automatically covered by the provisions of Section 5. Under 
Section 3(c), constitutional violations are not presumed; they 
must be proved.

The "pocket trigger” provision does not utilize the 
automatically-presumed-discriminatory approach pio­
neered in sections 3(b), 4(a) and 5. Instead these alleged 
discriminatory "qualifications, prerequisites, etc.” retain 
the "traditional case-by-case approach.”

Brown v. Board o f  S choo l C om m ’rs o f  Mobile City, Al, 542 
F.Supp. 1078 (1982) (quoting [1965] U S. Code Cong. & Ad. 
News 2437, 2475).

The Section 3(c) preclearance remedy has remained 
practically unused since the passage of the Voting Rights Act 
25 years ago. Cf. McMillian v. Escambia County, 559 F.Supp 
720 (N.D. Fla. 1983); Sanchez v. Anaya, Civ. No. 82-0067M 
(D.N.M.) (three-judge court) (decree entered by stipulation 
December 17, 1984). No court has yet articulated standards



A-48

for its imposition. Never has an entire state, or even most of a 
state, been subject to its strictures. I submit that this is 
essentially an issue of first impression. Circumspection should 
be the order of the day.

B. In terpretin g th e  Language o f  Section 3(c)
First, I believe that Section 3(c) cannot be read to apply 

unless violations of the Constitution are shown with respect 
to the very standard, practice or procedure that is actually 
being challenged in the lawsuit. Here, the electoral device at 
issue was the 1981 redistricting plan. Since the court has 
found no constitutional violations with respect to that 
apportionment, there is simply no predicate for preclearance 
under Section 3(c).

The majority contends that Section 3(c)’s reference to 
"violations of the fourteenth or fifteenth amendment 
justifying equitable relief” is "not limited at all.” Majority op. 
at 16. Not so.

Sec. 3(c) reads in relevant part:

^  If in any proceeding instituted by the Attorney General
or an aggrieved person under any statute to enforce the 
voting guarantees of the fourteenth or fifteenth amend­
ment in any State or political subdivision the court finds 
that violations of the fourteenth or fifteenth amendment 
justifying equitable relief have occurred within the 
territory of such State or political subdivision, the court, 
in addition to any such relief as it may grant, shall retain 
jurisdiction for such period as it may deem appropriate 
and during such period no voting qualification or 
prerequisite to voting or standard, practice, or procedure 
with respect to voting different from that in force or



A-49

effect at the time the proceeding was commenced shall be 
enforced unless and until the court finds such qualifi­
cation, prerequisite, standard, practice, or procedure does 
not have the purpose and will not have the effect, of 
denying or abridging the right to vote on account of race 
or color, or [language minority status].

42 U.S.C. § 1973a(c).

The use of the plural "violations” and the additional qualifi­
cation that such violations "justify[] equitable relief’, clearly 
reflect congressional reluctance to impose preclearance 
lightly. It is my opinion that those violations must arise out of 
the very proceeding "to enforce the voting guarantees of the 
fourteenth and fifteenth amendments . which is referred 
to in the initial phrase of the statute. Why? Because the statute 
goes on to say that if in such proceeding the Court "finds that 
violations of the fourteenth or fifteenth amendment justify­
ing equitable relief have occurred . . .” then "the court, in 
addition to such relief, shall retain jurisdiction. . . .” and 
impose preclearance. So, here, the Court must find consti­
tutional "violations” (i.e., not just one) in the challenged 
redistricting plan "justifying equitable relief,” (i.e., justifying 
ordering, for example, a new plan or at least some changes in 
the 1981 redistricting plan). If the Court finds such con­
stitutional violations justifying such relief, then "in addition ” 
the Court must ("shall”) impose preclearance.2

2The majority, by concluding that preclearance may be ordered for 
even non-major violations, is led also to conclude that "shall" means 
"may.” I disagree. If the statutory predicates are found by the Court to have 
been established, then, barring constitutional problems, preclearance 
must be imposed. And the statutory predicates must be constitutional 
violations, not merely statutory violations. So the Court’s finding of 
Section 2 violations here, which justify equitable relief, would not be 
enough. It must find "violations of the fourteenth or fifteenth amend­
ments justifying equitable relief.”



The suggestion that the plaintiffs here need not prove 
their claim that the defendant Board committed violations of 
the Constitution in formulating the 1981 redistricting plan 
(and thereby obtain equitable relief) as a condition to 
entitlement to preclearance is further negated and undercut 
by the statutory language that the "court in addition to such  
r e l i e f  shall retain jurisdiction . . If no other relief for 
constitutional violations has been awarded, clearly there is no 
preclearance, and the parallelism in the use of the phrase "in 
any State or political subdivision” and the language "within 
the territory of such State or political subdivision” cannot be 
ignored. The statute states that "If in any proceeding . . .  to 
enforce the voting guarantees of the fourteenth or fifteenth 
amendment in any State or political subdivision the court 
finds that violations . . . have occurred within the territory of 
such State or political subdivision, the court. . . shall (impose 
preclearance).” So I submit that the most reasonable and fair 
construction of Section 3(c) requires that plaintiffs succeed on 
their basic challenge before any consideration can be given to 
the remedy of preclearance.

If the majority is correct, would it not follow that a cause 
of action for preclearance could be stated without, at the same 
time, attcking some standard, practice or procedure as a 
violation of the voting guarantees of the Fourteenth or 
Fifteenth Amendment? For example, assume plaintiffs filed 
this lawsuit in January 1989, simply claiming that the 
enactment of these four run-off statutes violated such pro­
visions of the Constitution and praying only for the relief of 
preclearance (i.e., not claiming that the run-off statutes 
violated Section 2 and praying for any equitable relief). Could 
such a complaint survive a motion to dismiss? Although the 
majority opinion here states that equitable relief would be 
justified here, it does not go on to grant any such relief in



A-5 L

connection with the four run-off statutes. It is my opinion that 
Section 3(c) would not form the basis for such a cause of 
action. Simply alleging, and proving, that violations of the 
Fourteenth and Fifteenth Amendments "have occurred 
within the territory of such State” would not be enough, alone, 
to justify preclearance. Why is that not clear?

But the majority apparently disagrees, concluding that if, 
in the course of an attack upon an apportionment plan, 
plaintiffs put on evidence of o th e r  constitutional violations, 
such other violations may independently constitute the 
predicate for "the drastic remedy of preclearance.’’ Sum­
marizing on this point, the majority states:

[ W]e do not think the statute should be read in such a 
crabbed way as to rule out such relief as a matter of law. 
Certainly the words of the statute do not require such a 
reading, and it would be inconsistent with its broad 
remedial purpose.

Majority op. at 17.

As just explained, it is my view that a straightforward reading 
of the statute requires the denial in this case of the pre­
clearance remedy as a matter of law. It is the majority that 
tortures the statute in what appears to be quest for some 
justification to impose preclearance. None exists in this case.

C. The Due P rocess  Issue o f  Notice
Furthermore, it does not require a "crabbed” reading of 

the statute or its purpose to conclude that principles of fair 
notice and due process require plaintiffs to set forth and 
specify b e f o r e  trial each and every electoral structure being 
attacked, which they contend justify the imposition of any 
remedy and particularly the draconic remedy of preclearance.



A-52

Plaintiffs failed to do this. Nor do I believe is it reasonable to 
conclude that the defendants were nevertheless fairly on 
notice of such a theory.

This failure to accord the defendants their constitutional 
right to procedural due process may be the single most serious 
error in this case if for no other reason than it has been the 
occasion for so many of the other errors.

The majority states that, "at least since the time of the 
pretrial conference . . .  it has been clear that plaintiffs did 
attempt to prove a pattern of statutory and constitutional 
violations of their voting rights.” Majority op. at 15-16. The 
majority goes on to say:

All of the issues were on the table before trial, defendants 
had a full and adequate opportunity to offer proof on 
them, and, if in fact the complaint is not broad enough to 
encompass them, the pleadings should now be deemed 
amended to conform with the proof.

Id. at 16.

I strongly disagree. The pleadings make no mention of 
the majority vote statutes now being relied upon as a predicate 
for preclearance. Having reviewed the record of the pretrial 
conference, I must also conclude that there was clearly no 
agreement about this issue or any understanding as to the 
significance of proving these "other constitutional viola­
tions." In short, this issue was not placed on the table even at 
that late date.

Much of the pre-trial ccnference held on September 28, 
1989 focused on plaintiffs’ various requests for judicial notice. 
Early in the conference, I posed the following question to one 
of the attorneys for the plaintiffs: "It is, I guess, dilution and



A-53

districting that we’re dealing primarily with as the structure 
you’re attacking.” Counsel responded: "Yes, your Honor.”

Later in the conference, a question was raised concerning 
whether a transcript of plaintiffs’ expert witness testimony in 
W hitfie ld v. D em ocra tic  Party o f  th e  State o f  Arkansas, 686
F.Supp. 1365,1368 (E.D. Ark. 1988),a f f ’d .,___F.2d___ ,No.
88-1953, slip op., (8th Cir. May 4, 1990) (en banc), would be 
admissible under a hearsay exception in view of certain 
Department of Justice regulations that purportedly prevented 
the witness from testifying again in the trial of this case.

In explaining their objections to the use of the transcript, 
defendants’ counsel stated that he "never considered run-off 
statutes to be an issue in this case.” This appeared to go 
toward the testimony’s relevance, rather than the question of 
hearsay. As to the latter objection, the Court ruled in 
plaintiffs’ favor. But the statement of counsel is strong 
indication of the defendants’ lack of notice that run-off 
provisions would be used to independently establish a 
predicate for preclearance. Moreover, it must be remembered 
that the election law at issue in Whitfield, and the focus of the 
expert’s testimony, and therefore the likely focus of the 
parties at the pre-trial conference, was not the run-off 
provisions which the majority has now found should serve as 
a legal basis for preclearance.

But this was the only discussion of run-off provisions at 
the pre-trial conference. The plaintiffs did request that the 
Court take notice of judicial findings in other cases of 
constitutional violations in the State. In doing so, they 
explained that these cases were relevant to their claim under 
Section 3(c), and specifically would be used to establish a 
pattern of local constitutional violations in Arkansas. How-



A-54

ever, plaintiffs did not contend that these findings could serve 
as a predicate for preclearance independent of the Court’s 
ruling with respect to the 1981 apportionment. And the 
majority concedes that these earlier judicial findings would 
not justify preclearance since the effects of any such violations 
have ceased or have since been remedied. Majority op. at 439

’Because the majority concludes that none of the other constitutional 
violations except the run-off statutes constitute a proper basis for 
preclearance, 1 have chosen not to carefully review the majority's analysis 
thereof for the purpose of indicating wherein I agree and disagree with 
that analysis. Suffice it to say I do not completely agree with the majority's 
factual analyses. However, I do agree with its legal conclusion that no such 
violation or violations can or should constitute a legal basis for pre­
clearance here. Some specific points should, however, be made. In dealing 
with "local violations," the majority states that there should be no 
distinction between the acts of state and local officials. I disagree. The state 
may not be penalized for the isolated and unconnected incidents of bad 
behavior on the part of local officials. Furthermore, if the violations are to 
rise to the level of a "policy or practice,” there should be evidence of a 
series of related incidents involving similar conduct over which the state 
would have some lawful control.

And, while not choosing to rely thereon, the majority has cited prior 
judicial decisions as evidence of prior constitutional violations while 
completely ignoring the many court decisions finding such constitutional 

■ A claims to be without merit. Section 3c does not permit such "boot­
strapping" to be used as a basis for preclearance.

Furthermore, many of the "local violations" discussed by the majority 
consisted of the actions of private citizens unconnected to either state or 
local governmental action. The majority states at p.39 of its opinion:

The statute does not say that the state or its officials must be guilty of 
the violations but only. . . the violations must "have occurred within 
the territory of the state.

I believe this analysis to be wrong. Violations of the Fourteenth and 
Fifteenth Amendments require a state action. If the state is not guilty of 
violations, then no violations of the Fourteenth or Fifteenth Amendments 
can occur.

So, again, the only state action which the court can rely upon here is 
found in the enactment of the four runoff statutes.



A-55

Finally, the submissions of the parties both before and 
after the trial clearly reveal that the issue whether con­
stitutional violations, independent of the apportionment 
challenge, could serve as a predicate for pre-clearance, was 
never brought into focus, implicitly or otherwise. For 
instance, the proposed findings of fact and conclusions of law 
filed by both parties simply outlined the appropriate standard 
necessary to establish a constitutional violation. Defendants 
concluded that plaintiffs "have the burden of establishing 
intentional discrimination or a disproportionate effect in 
the establishment and maintenance of the ch a l l en g ed  
app o r t ionm en t  plan. ” Defendants’ Proposed Findings of Fact 
and Conslusions of Law at 11 (emphasis added). They then 
proposed that the Court find that no racial animus accom­
panied the 1981 apportionment plan, and therefore, "Arkan­
sas cannot be placed under the preclearance requirement of 
Section 3(c) of the Voting Rights Act.” Id., at 14-15. At no 
point do the defendants indicate in their pre-trial submissions 
that they were aware that plaintiffs would attempt to show 
that preclearance could be imposed in the absence of a finding 
that the apportionment was carried out with the intent to 
discriminate against blacks.

More importantly, the plaintiffs’ pre-trial conference 
information sheet does not list this as an expected issue of law 
to be contested at trial. Nor are the citations for any of the 
now-challenged runoff statutes ever mentioned in the pre­
trial submission of the plaintiffs. It must be noted that during 
the pre-trial conference, plaintiffs requested that the Court 
take judicial notice of some 43 items ranging from earlier 
judicial findings of racial discrimination to allegedly race- 
based enactments passed by the Arkansas General Assembly 
from the end of the Reconstruction era to the present. At no 
time did the plaintiffs identify, or request that the Court take



A-56

judicial notice of the existence of the majority-vote statutes 
that now serve as the basis for imposition of preclearance.

On the first day of trial, plaintiffs presented the Court 
with a list of 67 exhibits that they intended to offer. These 
were then received subject to later objections from the 
defendants. Again, the majority-vote statutes were not among 
the exhibits offered.

It was not until the trial commenced that the run-off 
statutes became the focus of some testimony. Even then, 
however, the manner in which these provisions are referred 
to is instructive on the question whether defendants had 
adequate notice that these provisions would be tendered as 
predicates for preclearance. For instance, on the fourth day of 
trial, State Representative Irma Hunter Brown testified that 
she and several other black legislators looked upon a run-off 
bill introduced in early 1989 with a "jaundiced eye” because 
the bill was introduced shortly after the plurality election of 
the Honorable Marion Humphrey to the post of Pulaski 
County municipal court judge. TR. at IV-50. The bill to which 
she referred was never cited by either the witness or counsel. 
Toward the end of her testimony, the following colloquy 
occurred:

Q Do you believe that the run-off primay bill was passed 
in response to a particular election?
A I can only repeat what I said earlier. I thought it was 
suspect in that we had just had the election of Judge 
Humphrey and it became a main bill that was introduced.

JUDGE ARNOLD: Did-the bill pass?
THE WITNESS: It passed city, county, local 

[committee] and I believe it ultimately passed the House, 
yes.



A-57

JUDGE ARNOLD: Did it become law?
THE WITNESS: I’m not sure. I don’t think it did. I 

think it fell somewhere between the Senate and the 
Governor’s office. I think that’s what happened. I’m not 
sure.

TR at IV-57.

Two days later, Judge Humphrey testified that when he 
ran for municipal judge, there were no majority-vote 
requirements, but that it was his "understanding” that such 
requirements had been enacted since the election. TR at p. 
VI-104. Pressed for details about the run-off provision, Judge 
Humphrey said he was only informed about the passage by his 
elected state representative. Then the following:

JUDGE ARNOLD: Did another witness testify that 
the bill did not pass?

MR. HOLLINGSWORTH: Your Honor, I think we 
had Representative Brown on the stand and her 
testimony was that she did not think — that she did not 
know whether or not it had passed. She did know it had 
been introduced.

JUDGE ARNOLD: All right. Will you nail that 
down for us?

MR. HOLLINGSWORTH: We’ve been trying to, 
Your Honor, and we just can’t run it down. We will 
continue to try to accomplish that.

TR at p. VI-105.

On the following morning, plaintiffs’ counsel offered as 
an exhibit a copy of Act 905 of 1989, codified as Ark. Code 
Ann. § 14-42-206. Counsel identified it as the run-off statute 
that Judge Humphrey, and presumably Rep. Brown, had 
referred to earlier. TR at p. VII-3. The copy was marked as

ill’! 
-! I'i

ill



A-58

Plaintiff’s Exhibit 71, and received by the Court. As far as I can 
tell, this was the first time any of the four run-off statutes was 
specifically cited to the Court, and the only such exhibit 
offered by the plaintiffs. At this point, the trial had entered 
the seventh day of what would be twelve days of testimony.

Aside from the manner in which these run-off laws were 
introduced, it must also be noted that plaintiffs’ pre-trial brief 
likewise never contended that the statutes could independ­
ently serve as a predicate for preclearance. Instead, plaintiffs 
focused on the discussion of factors relevant to a determi­
nation that the 1981 apportionment had been implemented 
in violation of Section 2 and the Constitution. In that context 
plaintiffs noted the existence in Arkansas of so-called 
"discrimination-enhancing” majority vote requirements. 
Plaintiffs at no point suggest any more than that the Court 
consider the existence of these statutes as relevant under the 
Z immer4 or Seriate factors to plaintiffs’ attack on the 
apportionment. See Plaintiffs’ Proposed Findings of Fact and 
Conclusions of Faw at 43 par. 141.

Given the scant law on Section 3(c) in general, and the 
complete absence of any previous cases on this issue in 
particular, plaintiffs should have placed defendants on notice 
by explicitly stating that they would request imposition of 
preclearance regardless of the Court’s ultimate finding with 
respect to the 1981 apportionment. Plaintiffs did not do this. 
Moreover, their post-trial brief indicates that such a theory of 
relief was advanced primarily in response to the Court’s 
questions during closing argument. Plaintiff’s Post-trial Brief 
at 115.

4Zimmer v. McKiethen, 485 F.2d 1297 (5th Cir. 1973), aff'd. sub 
nom., East Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976).



A-59

Under these circumstances, I do not think that there is 
any basis for permitting the pleadings to be deemed amended 
to conform with the proof. I do not believe that this issue was 
"tried by express or implied consent of the parties,” as 
required by Fed.R.Civ.P. 15(b). Clearly, the defendants were 
vigorously resisting the preclearance remedy. Had they 
realized that the plaintiffs were advancing this theory, or that 
the Court was, on its own, seriously entertaining same, it is 
entirely reasonable to assume that the issues concerning the 
enactment of the run-off statutes would have been aggres­
sively tried out, thereby providing the Court with an adequate 
evidentiary basis upon which to make its findings. Frankly, 
I confess to the feeling that the defendants have been 
bushwacked on this issue. A careful examination at the 
evidentiary record would, I submit, convince any lawyer that 
constitutional challenges to these four run-off statutes simply 
were not tried out. To decide such important issues in such an 
evidentiary vacuum invites the possibility of serious embar­
rassment should the Court’s assumptions prove wrong. That 
potential can easily be avoided by insisting that the usual and 
ordinary due process standards be followed here.

I conclude that the defendants’ constitutional right to 
procedural due process has been violated here, and the cost 
(measured in terms of the sacrifice of potential accuracy of 
factual findings) has been visited not only upon the 
defendants but upon all the citizens of this state.

III. THE "OTHER” CONSTITUTIONAL VIOLATIONS: 
MAJORITY VOTE REQUIREMENTS

A. Majority-Vote Statutes — Sacred Ground
In my dissenting opinion on plaintiffs’ Section 2 claim, 1 

included a section captioned "Constitutional Limitations: Use



A-60

of Republican Form of Government’ Guarantee of Article IV 
Section 4, U. S. Constitution.” J e f f e r s  v. Clinton, supra, 730 
F.Supp. at 232. I now incorporate that section herein by 
reference. My conclusion there, and here, is that there are 
certain voting practices and standards that are protected from 
any attack by our United States Constitution. The four run-off 
statutes relied upon by the majority of the judges of this Court 
as a basis for imposing preclearance establish just such 
protected standards — which I will here refer to as "sacred 
ground.”

It is my opinion that if majority rule is not requ ired  by the 
Constitution as part and parcel of the "Republican Form of 
Governement” which is guaranteed by Article IV Section 4 "to 
every State in this Union,” such majority rule principle 
certainly may not be prohibited or enjoined for any reason. 
Nor, in my opinion, may the enactment of any such run-off 
statute be make the basis for punishing any state or limiting 
any state’s sovereign power, regardless of the motive or 
motives for such enactment and regardless of the effect such 
statutes may have upon any individual or any group of 
individuals. (Of course, it is my further view, as explained 
elsewhere herein and in my earlier decisions in this case and in 
Whitfield, that such run-off statutes, properly analyzed, have 
no discriminatory effects.)

Here, while the majority does not enjoin the enforce­
ment of such statutes, it finds that the enactments thereof 
violated the Fourteenth and Fifteenth Amendments and that 
such violations under Section 3(c) may be used to punish the 
State of Arkansas by limiting its sovereignty through the 
imposition of preclearance. It is my opinion that the 
enactment of such run-off statutes did not and cannot cause 
any violation of our Constitution. It is my further view that



A-61

Section 3(c) does not permit or require courts to impose 
preclearance upon the basis of the enactment of such run-off 
statutes, regardless of motive or effect. Certainly the con­
gressmen and senators who voted for Section 3(c) would be 
shocked to learn that they had passed a statute purporting to 
place such power in our federal courts — the power to 
prohibit or punish majority rule. It is my further opinion that 
if Section 3(c) were so interpreted to permit or require 
preclearance on such a basis, then Section 3(c) itself would be 
unconstitutional. For even Congress may not penalize a state 
for its enactment of statutes requiring majority rule.

At some point in our national life I believe that the states 
will be requ ired  to operate their governments under majority 
rule principles to give meaning and validity to the "one 
person-one vote” principle and to carry out the "Republican 
Form of Government” guarantee, and to make clear for once 
and for all that The People Rule. But I also do not believe it is 
necessary to reach that question in this case.

B. Majority-Vote Statutes: I f  Not "Sacred Ground"
Assuming that the defendants had adequate notice of the 

non-pled preclearance issue with respect to these "other 
violation” and assuming that the plaintiffs are now permitted 
to amend their complaint after the trial to conform with the 
proof, and assuming further that such majority vote statutes 
are not "sacred ground” as discussed above, I must still dissent 
from the majority’s conclusions that there is adequate proof in 
this record to establish constitutional violations justifying 
preclearance.

1. The Standard o f  R ev iew
In R oger s  v. Lodge, 458 U.S. 613 (1982), the Supreme 

Court reaffirmed that plaintiffs who challenge an electoral



A-62

structure on equal protection grounds must establish that the 
challenged structure was "conceived or operated as [a] 
purposeful device[] to further racial discrimination by 
minimizing, cancelling out or diluting the voting strength of 
racial elements in the voting population.” Id., 458 U.S. at 617 
(citations omitted). While also rejecting a portion of the 
earlier plurality opinion in City o f  Mobile v. Bolden, supra, the 
R oger s  court upheld a district court’s use of the so called 
Z im m er  factors as an appropriate means to determine 
whether a Georgia county’s at-large system for electing its 
governing board of commissioners had been conceived or 
maintained for the purpose of discriminating against black 
voters. The primary Z im m er  factors included a lack of 
minority access to the candidate selection process, un­
responsiveness of elected officials to minority interests, the 
tenuousness of the state policy underlying the selection of a 
particular election scheme and the present effects of past 
discrimination that operates to minimize the effective 
participation of minorities in the political process. Z im m er  v. 
M cKietch en , supra, 485 F.2d at 1305. Other relevant factors, 
within the context of at-large or multi-member election 
schemes, were: the geographic size of the district, the 
presence of anti-single shot voting provisions and majority 
vote requirements. Id.

The R oger s  court concluded that use of the Z immer  
factors appropriately applied, in the area of voting rights, the 
standard of proof of intentional discrimination developed in 
the equal protection cases of W ashington v. Davis, 426 U.S. 
229 (1976) and Village o f  Arlington H eights v. Metropolitan  
Housing D eve lopm en t  Corp., 429 U.S. 252 (1977). Under this 
line of cases, a plaintiff challenging an electoral system need 
not show intent by direct evidence. Rather, "an invidious 
discriminatory purpose may often be inferred from the



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totality of relevant facts, including the fact, if it is true, that the 
law bears more heavily on one race than another.” Rogers, at 
618, quoting, Village o f  A rlington H eigh ts v. M etropolitan  
Housing D ev e lo pm en t  Corp., supra, 429 U.S. at 265.

Proper inquiry into legislative intent requires that 
plaintiffs first show that a discriminatory purpose was one 
factor leading to the challenged action. Upon such a showing, 
the State may then come forward with evidence of neutral 
justification for the conduct including evidence that the same 
result would have occurred even absent any discriminatory 
motive. Mt. Healthy City Board o f  Education v. Doyle, 429 
U.S. 274 (1977). See a lso Rybickiv. State Board o f  Elections o f  
State o f  Illinois, 574 F.Supp. 1082, (N.D. 111. 1982) (three- 
judge panel).5

2. The Role o f  Majority-Vote R equirem ent Statutes
In the present case, I believe that the majority collapses 

portions of the appropriate analysis while inappropriately 
isolating others. Specifically, while R oger s  and Z im m er  
recognize that certain electoral devices such as majority vote 
requirements are potentially relevant to the inquiry into 
legislative intent because these devices might, in conjunction

5Setdng out the applicable standard of proof under plaintiffs’ claim 
that a redistricting plan had been adopted in violation of the Fourteenth 
Amendment, the court in Rybicki wrote:

Applying Mt. Healthy analysis to the instant case involves the 
following analytic steps. First plaintiffs must establish a prima facie 
case of purposeful vote dilution under the principles established in 
White v. Register, [cite] Arlington Heights and Bolden. Assuming 
that plaintiffs are able to make such a prima facie showing, the 
burden would then shift to the defendant Commissioners to 
establish that the redistricting in question would have occurred even 
absent the purpose to dilute minority voting strength.

Id., 514 F.Supp. at 1107-08.



A-64

Ijs-A--

with the challenged practice or practices such as at-large 
voting, enhance difficulties faced by minority voters in 
achieving electoral success, the majority here make the 
analytic leap that all majority vote requirements are similarly 
suspect regardless of context. In other words, what had been 
introduced as evidence of a "discrimination-enhancing” 
device for the purpose of determining whether the 1981 
apportionment had been adopted with invidious intent, has 
now been elevated to the level of being th e  electoral structure 
under attack. See dissent p. 11, supra and Plaintiffs’ Proposed 
Findings of Fact and Conclusions of Law at 43. Neither the 
Z im m er  factors nor R oger s  contemplate such a trans­
formation.

Applying the Z im m er  factors in the context of a claim 
under Section 2 of the Voting Rights Act, the Second Circuit 
has concluded that majority vote requirements are susceptible 
to challenge when used with at-large or multimember 
districting schemes, but not — as is the case in Arkansas 
—when used as a criteria for election to single-member 
offices. Butts v. City o f  N ew  York, 779 F.2d 141 (2d Cir. 1985), 
cert, denied, 478 U.S. 1021 (1986).6

In other words, majority vote requirements have been 
found to have potentially discriminatory effects within certain 
narrowly-defined contexts not applicable here. It is my 
opinion that, properly analyzed, majority vote statutes never

6See also Note, Geometry and Geography: Racial Gerrymandering 
and the Voting Rights Act, 94 Yale L.J. 189,197 (1984), citing, Parker, The 
Results Test of Section 2 of the Voting Rights Act: Abandoning the Intent 
Standard, 69 Va. L. Rev. 715, 763 (1983) ("[I]n a challenge to a 
discriminatory redistricting plan which employs single-member district, 
factors such as majority vote requirements . . . would be irrelevant, since 
those are characteristics of multimember and at-large election schemes.”)



A-65

have a discriminatory effect. Some courts believe they do; but 
none in the circumstances of this case.

3. The Inability to  Show  Disparate Impact o f  Run-O ff 
Statutes

a. Background
It is my opinion that run-off statutes have no racially 

discriminatory effect or disparate impact. So, even if the four 
statutes were passed with an intent to discriminate which 
they were not — no constitutional violations could be found. 
As with conspiracy, we do not punish the simple in ten t to do 
wrong. As stated in Whitfield:

As the Court understands the law in this area, if 
legislation was motivated or maintained out of a desire to 
discriminate against blacks . . . and  if, indeed, such 
legislation m fa c t  has that e f f e c t ,  it would violate the 
Equal Protection Clause. (Emphasis supplied)

Id., 686 F.Supp. 1365, 1367.

The majority acknowledges that abolition of the 
requirement would likely have very little beneficial impact on 
minorities seeking office in majority white jurisdictions, 
while it could actually work against the election of blacks in 
many majority black jurisdictions. Majority op. 15 20 n. 2, 
quoting, McDonald, The Majority Vote R equirem ent: Its use 
and Abuse in th e  South, supra. But the majority then ignores 
this inability to show disparate impact, finding it to be a 
question of policy or political effect which is irrelevant to our 
present inquiry into motivation. Id. It, therefore, appears to 
be the view of the majority that discriminatory motivation 
a lon e  is sufficient to trigger equitable relief. Although there is 
some language in some of the cases that would support such a

■i

!



A-66

view, I do nor believe that a majority of the Justices on the 
Supreme Court have accepted that idea. Nor should they. 
Section 3(c) is part of the Voting Rights Act. That act attacks 
standards, practices and procedures that discriminate. And 
preclearance is a remedy to protect against creation or 
enactment of standards, practices and procedures that have 
some discriminatory effect.

We are not here dealing with violations of the 
Fourteenth and Fifteenth Amendments independent of the 
statute. Preclearance is a statutory remedy. It requires that 
constitutionally challenged procedures, such as run-off 
statutes, be shown to have the purpose and  the effect of 
violating the Voting Rights Act. And after preclearance is 
ordered those proposing new standards, practices or pro­
cedures must, before putting same into effect, demonstrate 
that they do not have the purpose and  will not have the effect 
of violating the statute. But it is obvious that the majority 
believes that preclearance may be imposed even though the 
’’violations” which serve as predicates for this remedy would 
themselves have no discernible discriminatory effect. The 
majority imposes the most drastic remedy available under the 
Voting Rights Act, while at the same time acknowledging 
that the statutes that trigger this judicial action do not even 
violate the less-stringent provisions of Section 2, which 
requires only a showing of discriminatory effect. How can the 
majority’s decision further the purpose of the Voting Rights 
Act, or the Equal Protection Clause of the Fourteenth 
Amendment or the Fifteenth Amendment, when that 
decision practically acknowledges that majority-vote re­
quirements do not discriminate against black candidates or 
favor white candidates?

In sum, I believe an inquiry into whether the four run-off



A-67

statutes have any discriminatory effect is highly relevant to 
the present determination of legislative intent. Evidence 
revealing whether majority vote requirements "bear[] more 
heavily on one race than another” is precisely the type of 
factor the Supreme Court has said must be examined under 
equal protection analysis. R oger s  v. Lodge, supra, 458 U.S. at 
618. Logically, if it cannot reasonably be said that run-off 
elections have any disparate impact on black voters, then how 
can the enactment of such statutes, or the failure to enact such 
statutes, lead to an inference of discriminatory intent? I would 
conclude that a majority-vote statute which does not have 
such an effect likewise cannot be found to reduce minority 
political opportunity in violation of either the Fourteenth or 
Fifteenth Amendments.

The earliest of the challenged run-off statutes was passed 
in 1973 and the latest in 1989. If the Court, being suspicious, 
wished to know the actual effect of these four statutes, it could 
easily have suggested that all of the evidence reflecting the 
Arkansas experience with these statutes be brought before the 
Court.7 After all, we know that two of the statutes were 
declared unconstitutional by the Arkansas Supreme Court so 
the evidence resepcting their use would be minimal. And we 
know there would be little experience with the 1989 statute. 
So, surely it would not be difficult to provide the Court with all 
pertinent evidence concerning their use so the Court could 
carefully study that evidence to determine if any of the statutes 
actually had any discriminatory effects. But, no. So we have

7It must be remembered that it was the Court that caused what little 
evidence we have concerning these run-off statutes to be brought into the 
record in the first place. Having initiated the inquiry, it should have 
insisted upon a full development of the issue after first alerting the parties 
— particularly the defendants — to the potential significance of the 
inquiry.



A-68

another evidentiary vacuum in a critical area. I can only 
conclude that the majority believes such evidence would be 
irrelevant and that such evidence -  regardless of what it 
might show -  would not change the majority's opinion.

b. The Four Q uestioned  Run-Off Statutes

Of the four majority vote statutes relied upon as 
predicates for imposition of preclearance, only two remain in

A 7 V* ^ e: ACt 909 ° f 1983, n° W codified as Ark. Code
,  and ACt 905 ° f 1989’ Codified as Ark. Code 

nn. §§ 4-42-206,14-47-109(c), 14-48-109(a)(2)(B)(i) The
two that are no longer in effect -  Act 168 of 1973 and Act 269 
of 1965 (later amended by Act 175 of 1977) — were 
invalidated by the Arkansas State Supreme Court on state 
constitutional ground.8

As the majority notes, Ark. Code Ann. § 7-5-106 requires 
a run-off whenever a candtdate for county or municipal office

8In Whitfield plaintiffs also contended that Act 909 of ] 0 0 2

[AJlthough the legislature has recently endorsed the runoff 
P ciple for use in connection with certain general election 

"tests, its motive, as discussed above, was not, overall tainted by 
racial considerations. The fact that a handful of legislators in 1983

__ f Ime» * am more convinced than ever of
rrectness of my original decision on this issue.

2 i

-X, 
V

. >
- V

*



A -69

receives less than a majority of the votes in a general election. 
Ark. Code Ann. 14-42-206 creates a “municipal primary” for 
all elections in cities and towns”. Under the provisions of the 

latter statute, candidates may be qualified to run either by 
virtue of being nominees from their respective political 
parties, or as independent non-partisan candidates. The 
primary only occurs if more than two candidates qualify for 
the office. If only two candidates emerge, then no primary is 
held and the two simply proceed to the general election
§ 14-42-206(c)(l)(B).9

It is true that the sum of these provisions is that 
candidates for most county and most municipal offices will 
now be subject to some majority vote requirement. The only 
exception appears to be in the election of directors in cities 
with the city manager form of government. Ark. Code Ann. 
§§ 14-47-109(c) and 7-5- 106(b).>° But the effect of such 
provisions is far from clear. For instance, the municipal 
primary statute allows cities to choose to have political parties 
conduct nominating primaries for candidates. Ark. Code Ann.
§ 14-42-206(3). This would then shift the point at which a 
candidate field is “narrowed” to an earlier point in time and 
might subject candidates to the primary run-off provisions at

7  s 3 0 7  f Vent’ tHe run'off Provisions found in Ark. Code Ann § 
7-5-106, insofar as they refer to municipal offices such as the one in which 
Leo Chitman was elected, see, infra, must be considered now to be of little 
consequence, if not repealed by inference by Ark. Code. Ann. 14-42-206. In 
s ort, a municipality with a primary from which only two candidates will
election ™ ^  P° Sk‘° n of needing a run-off after the general

'“Contrary to the majority’s assertion, ante p. 22, n.4, Little Rock and 
any other cities having the city-manager form of government are not 
subject to any majority-vote requirement. Rather, officers are elected on 

bas^ ° f the greatest number of votes. Ark. Code Ann. §§ 14-47-109(c) 
and 14-47-110(4).



A-70

»ssue m Whitfteld, which the major.ty here finds does not 
violate the constitution. Even if a black candidate were 
eliminated by the partisan run-off, he or she could still run for 
o ice in the municipal election as an independent, or that 
candidate could ignore the part primaries altogether, perhaps 
o conserve resources, and face only one or two opponents at 

the municipal primary stage. In any event, neither plaintiffs 
nor the majority explain how these majority-vote require­
ments impair the ability of any candidate, regardless of race to 
participate equally in the political process.

Plaintiffs refer to the four run-off statutes by naming 
them after the four black candidates who were allegedly the 
targets o each enactment. Thus, we hear of the "Hollings- 
worth Act, the "Handley" Act, the "Chitman" Act and the 
Humphrey Act. It must be pointed out that none of the 

candidates referred to were harmed by any of these statutes.

e fc e d  h f  W° " h' CWtman and HumPhrey were eachelected by plurality votes of 35 percent or less according to the
la ws of the State of Arkansas in effect a, the time. As for Pine
Bluff mayoral candidate Robert Handley, whose campaign
was preceded by enactment of Act 269 of 1975 (imposing
majority vote requirements for municipal offices), again the
evidence fails to show any discriminatory effect.

In the first election, Robert Handley received the second 
highest number of votes out of a field of five candidates. PX 
3 t. The largest vote-getter was Charles Moore, a white 
candidate who received 4,430 votes or 36 percent of the total 
cast, as compared to 3,455 votes, or 28 percent for Rev

a"ld 7 '  '  ^  3°V' In the abSe"Ce °f Act 269• Charles Moore would have been declared the winner. However, the run-off
statute required that the two candidates face off against each
other ,n a second election in which Mr. Moore received 68

)



A-71

percent of the vote compared to 32 percent for Rev. Handley. 
PX 30u. In short, neither the absence nor the presence of the 
run-off can be said to have had any effect on Mr. Handley's
mayoral candidacy except, perhaps, that it gave him a second 
shot at election.

Contrary to the majority's position, these circumstances 
cannot simply be dismissed as irrelevant. R oger s  v. Lodge, 
supra, makes clear that disproportionate impact is among the 
factors that must be considered in a claim that a voting 
standard practice or procedure violates the Fourteenth
Amendment. In this case, plaintiffs failed to establish this 
factor.

c. The In f e r en c e  o f  Racial Animus
If the statutes at issue have no racially discriminatory 

e ect, on what then does the majority base its inference that 
racial animus rather than some legitimate purpose motivated 
the legislature to pass these laws? The answer is that the 
majority finds it suspicious that three of these statutes were 
passed shortly after a black candidate won election by small 
pluralities, while in the case of Mr. Handley, the municipal 
run-off statute was enacted shortly before an election by 
plurality was likely to occur. Majority op. at 22-24.

Any discussion of the reasonable inferences to be drawn 
concerning legislative motive must begin with the recogni- 
tion that the legislature is presumed to act constitutionally 
Borden s Farm Prods. Co. v. Baldwin, 293 U.S. 194 209

(,I934)J COnSiStent Wkh this PrindPle> ^ e  Court has stated 
t at judges should be "reluctant to attribute unconstitutional 
motives to the state, Particularly where a plausible [con­
stitutional] purpose may be discovered from the face of the 
statute. Butts v. City o f  N ew  York, supra, 779 F.2d at 147,



A-72

quoting, Mueller v. Allen, 463 U.S. 388, 394-95 (1983).

In Whitfield, I rejected the plaintiffs’ use of Ark. Code 
Ann. § 7-5-106 as supporting evidence that the primary run­
off had been enacted or maintained for a discriminatory 
purpose. Id., at 1370.1 also pointed out that run-offs in general 
elections were perhaps even more important than in party 
primaries:

In the hierarchy of the fundamental values of a 
democratic state, the manner in which political parties 
choose to identify their nominees for public office 
positions is not as important as the procedures used to 
control the actual election of such public officers. Using 
this reasoning, courts might feel less restraint in inter­
fering with the nominating primary process than with 
the general election process. It is true that, in Arkansas, 
Political parties are not required to use open primaries to 
determine their nominees. They may use the convention 
process. So ruling that a primary runoff law was bad 
would not be as threatening to the basic democratic 
structure of government as would a like ruling with 
respect to a general election runoff law. (Indeed, under 
our republican form of government, the concept of 
plurality rule for general elections might itself be suspect 
constitutionally.) But the significance is immense in 
either situation. And in one-party states, the primary 
elections may be the critical ones in determining who 
shall ultimately be elected.

Whitfield at 1370, n.l.

In the present case, the readily identifiable and legitimate 
purpose of these statutes is simply to require election to 
municipal or county offices by a majority of voters and



A-73

consequently prevent election by pluralities. While the 
benefits of such a policy may possibly be debated, it cannot be 
said that this purpose is facially improper or unconstitutional. 
Thus, the court should proceed with the level of reluctance 
and judicial deference that the Supreme Court has indicated is 
appropriate in such cases.

When the majority of judges of this Court concluded that 
the Board of Apportionment did not violate Section 2 of the 
Voting Rights Act when it drew the legislative district lines in 
1981 for Pulaski County (even though the Board could have 
drawn four single member majority black VAP districts instad 
of one multi-member majority black VAP district with three 
members), its decision was influenced by the opinion of two 
incumbent black Pulaski County representatives. And it noted 
the testimony that "no black citizen of Pulaski County asked 
for single member districts.” The majority concludes:

It would be unfair to fault the Board of Apportionment 
for acceding to the expressed wishes of the only two black 
legislators from Pulaski County who appeared before it. 

J e f f e r s  v. Clinton, supra, 730 F.Supp. at 217. So why a different 
standard here?

The majority has found that the members of the 
Arkansas legislature acted with racially discriminatory intent 
in enacting these four run-off statutes. And yet, every black 
legislator voted f o r  these statutes.11 How can one fault the 
white members of the General Assembly who supported 
these run-off statutes when their black colleagues also 
unanimously supported them?

"It appears that in 1973 there were three black representatives and 
one black senator in the General Assembly. While there is still only one 
black senator, the number of black representatives went to four in 1982 
and five in 1988.



A-74

At the trial, plaintiffs made an effort to suggest that the 
black legislators who supported these run-offs just did not 
understand them. But it is clear to me that they did understand 
them and, indeed, like their white fellow legislators, believed 
them to represent good state policy. But if one takes the 
position that the black legislators did not understand the bills, 
on what evidentiary basis can one conclude that the white 
legislators understood that such legislation would have a 
racially discriminatory effect, or that such white legislators 
in t en d ed  such bills to have that effect?

We start with what I contend to be beyond question: such 
legislative acts have no racially discriminatory effects. Then 
we find that all of the black legislators and practically all of the 
white legislators supported these acts. No one is accusing the 
black legislators of wanting to discriminate against blacks. 
And we know that over two-thirds of the white legislators in 
the Arkansas General Assembly have no, or negligible, black 
constituencies and no possible concern about blacks winning 
any election race in their districts by a plurality vote. And yet 
we also know that these same white legislators would be very 
concerned about possible plurality-wins. So there is simply no 
basis for finding that the black legislators and the over­
whelming number of white legislators were motivated by any 
racial animus. What is left?

Some white legislators in districts with large black 
populations might have believed (wrongly, I submit) that 
such run-off statutes would protect them from being defeated 
by a black candidate. And they may have supported such 
legislation because of this erroneous, but discriminatory, 
belief.12 So I ask: if a handful of white legislators have a

12A legislator who was motivated by a concern that some candidate might 
be defeated by a white or black person in a plurality-win situation would not 
thereby be evidencing a racially discriminatory motive. A simple belief in 
majoritarian democracy does not equate with any racial animus.



A-75

racially discriminatory motive when they vote for such a 
statute, is that an adequate basis for finding and concluding 
that the s tate acted with such an intent? I say no. And 
remember, it is the state, as actor, that is implicated here.

Perhaps the majority believes that if five percent of the 
members of a legislative body have some racial animus, that is 
enough to taint the overall legislative intent — perhaps upon 
some theory of "mixed motive.” But that theory does not 
apply here. It is true that a racial motive need not be the only 
motive. If, "but for” the racial motive, the legislation would 
not have passed, then that is enough. But this means that a 
majori t y  of both houses of the legislature must have such a 
racial motive and intent and it must also mean that in the 
absence of the racial motive, the legislation would not have 
passed. Neither proposition is true here: Clearly a great 
majority of the legislators had no such racially discriminatory 
intent; and, just as clearly, the legislation would have passed in 
the absence of any such intent. See Rybicki, supra. At the very 
least, there is no evidence to the contrary.

And while we are talking about the state, as actor, I 
further ask: do we consider the to ta l  state response, or just the 
legislative action, when we federal judges pass judgment upon 
the acts of the State of Arkansas? More particularly, if a state s 
legislature passes an act in violation of the United States 
Constitution and the state’s supreme court then overturns 
that action, what are we to say about the state s action?

Here, two of the four challenged statutes were stricken 
down by the Arkansas Supreme Court on state grounds. See 
discussion infra. Therefore, should not those two run-off 
statutes be eliminated from consideration?



A-76

d. The In comp le t e  Reco rd

In evaluating the intent of these enactments, it is critical 
to appreciate the long historical preference this State has 
evidenced toward majority-vote requirements. Plaintiffs and 
the majority here chose to treat each of the statutes as if they 
were separate, isolated pieces of legislation — presumably to 
raise the inference that each enactment was specifically 
tailored by the General Assembly to prevent certain black 
candidates in certain areas from winning elections. A much 
fairer analysis, however, would take into account the history 
of run-off, majority-vote enactments in Arkansas, the role 
various state court decisions had on requiring certain amend­
ments thereof, and the consequent interrelatedness of the 
four majority-vote statutes now under attack.

Arkansas did not become involved with run-off statutes 
until the 1930s. In the 1928 primary election, the Democratic 
gubernatorial nominee won by a pluralty of 42 percent of the 
vote. This caused concern. In 1936, Carl Bailey won with a 
plurality of 32 percent of the vote. Amendment 29 to our State 
Constitution and Ark. Code Ann. § 7-7-202 were the results. 
In an earlier attack upon these primary run-off laws, I 
concluded that the history leading to their passage (Amend­
ment 29 by popular referendum) demonstrated that the run­
off sponsors "were moved, primarily, by hostility to com­
mittee nominations in special elections, and secondarily, to 
hostility to plurality nominations. The latter, however, should 
not be minimized.” Whitf i eld v. Democra t i c  Party o f  t h e  State 
o f  Arkansas, supra, 686 F.Supp. at 1367-70. Similarly, the 
majority here finds:

The run-off primary has become a permanent fixture of 
party politics in this State. It reflects a deep-seated 
attachment to the principle of majority rule, one of the



A-77

cardinal pillars of democracy. It was neither instituted 
nor maintained for racial reasons.

Majority op. at 20.

Rather than assuming that the State’s justification for 
these statutes would be tenuous, the Court should begin with 
the recognition that, regardless of their uses elsewhere, 
majority-vote requirements in Arkansas have historically 
been associated with "good government” efforts and funda­
mental democratic principles rather than any desire to 
discriminate.

When one considers the historical legislative response in 
Arkansas to plurality election successes, that person will 
immediately note that the lower the plurality-win percentage, 
the more likely a political response in the form of a run-off 
statute. Is it not clear then that when plurality-win per­
centages fall below 30 percent, as we find in this case, a 
legislative run-off response is quite predictable?

Amendment 29, and the subsequent unsuccessful effort 
to repeal it, make clear the attitude and philosophy of the 
people of this State toward plurality-win elections. That belief 
in majority rule, "one of the cardinal pillars of democracy 
(majority op. at 20) is firmly ingrained in the Arkansas 
political psyche. Although the record has not been fully 
developed on the point, it is probably true that occasional or 
sporadic plurality-win votes in the 40 to 50 percent range may 
not trigger immediate response. Remember our experience 
with Amendment 29- See supra. As stated in Whitf i e ld  
(1988):

The evidence in this case and the literature on the subject 
reveal that the absence of runoff requirements in the law

v'j

4



A-78

has not generally come to the citizen s or legislator s 
attention until some bizarre result occurs in an election. 
Most often it has occurred when some candidate getting 
30 to 40 percent of the vote has ended up "nominated or 
"elected.” See, e.g., the discussion of Mr. Henry Alex­
ander’s article, "The Double Primary,” supra, [fin. 2] 
Whenever a person is elected by a plurality vote in this 
country, there appears to be a tendency for the citizenry, 
and their legislative representatives, to become agitated 
and concerned. This is understandable because Ameri­
cans have traditionally been schooled in the notion of 
majority rule. [fin. 3] The theory is: a majority vote gives 
validation and credibility and invites acceptance; a 
plurality vote tends to lead to lack of acceptance; a 
plurality vote tends to lead to lack of acceptance and 
instability.
The concept of " majority-rule” dominates our national 
mind. But the problem is not confined to America. Many 
other democracies have had to deal with it. Recently, the 
French had a "run-off” election. The situation in South 
Korea appears to be that the present governing party did 
not get a majority of the votes in the most recent election. 
Their electoral rules are being challenged. Mr. Allende is 
said to have been the only Marxist who was ever elected 
the head of a democratic state. He received between 36 
and 37 percent of the vote. A coup occurred. President 
Allende was murdered. Democracy has yet to return to 
Chile. Would a runoff requirement have preserved 
democracy there? One can only speculate. But the point 
is: there are compelling, obvious reasons, completely 
unrelated to race, for states to opt for runoff elections.

fn.2 The Court views it as "sort of” like our attitude
toward the Electoral College system. So long as the



A-79

person elected usually or almost always has a 
majority of the popular vote, people do not get too 
agitated about that system.
fn.3 The framers of our Constitution, while ack­
nowledging this principle, also understood that a 
majority could run roughshod over a minority. The 
Bill of Rights was their answer to the prospect of the 
tyranny of the majority.

Id., 686 F.Supp. at 1373. Since Winfield, Chile has instituted 
run-offs and just recently we witnessed run-offs in Peru and 
Hungary. Surely there are cogent reasons for run-off laws 
unrelated to race.

e. The Int erre lat ionships Among  th e  Pour Statutes
Both the plaintiffs and majority treat each of the four 

run-off statutes as separate from each other. This treatment 
serves a dual function: first, it divorces the recent run-off 
statutes from the context of the long-standing historical 
preference shown in this State for majority-rule require­
ments; second, it makes it easier to link passage of each statute 
with the election of a candidate who was black, ignoring that 
these persons also won office with support from fewer than a 
third or fewer of the voters. In short, this mind-set (i.e., it was 
the race of a candidate rather than the bizarre election results 
that motivated each enactment), ignores the complex of 
political and historical forces, as well as judicial decisions, that 
when considered as a whole make the inference of racial 
discrimination glaringly simplistic, perhaps even paranoid. In 
truth, the recent statutes form a "package” of legislation 
aimed at implementing the goal of majority rule in a manner 
that disregards race.

Act 168 of 1973



A-80

Members of the Little Rock board of Directors are 
elected on an at-large basis, at non-partisan elections in which 
ballots show no party designation for candidates. Ark. Code. 
Ann., § 14-14-I09(d), as amended, (1989). This method of 
electing certain municipal officers was adopted in 1956 as part 
of a reform movement aimed at un-doing the widespread 
scandal and corruption that had previously existed in the city’s 
aldermanic form of government. Leadership Roundtable  v. 
City o f  Little Rock, 499 F.Supp. 579, 585-86 (E.D.Ark. 1980), 
a f f ’d., 661 F.2d 701 (8th Cir. 1981).

As stated earlier, Mr. Hollingsworth was elected to the 
Little Rock Board of Directors in November 1972 with a 
plurality amounting to about 35 percent of the total votes cast. 
Id. within months, the Arkansas General Assembly passed 
Act 168 of 1973 providing that members of Board of Directors 
be voted on at a "preferential primary to be held two weeks 
before the general election. A candidate at that first election 
receiving a majority of the vote would be certified for that 
position on the Board. Otherwise, the two largest vote-getters 
would face off against each other at the general election. See 
Ark. Code Ann. 14-47-109(0 (1987).

Before Act 168 could ever be used it was invalidated by 
the Arkansas Supreme Court. Mears v. City o f  Little Rock, 256 
Ark. 359 (1974). Relying on state constitutional grounds, the 
Court held that Act 168 would have disenfranchised numer­
ous voters, particularly those without part affiliation, because 
the "preferential primary” coincided with the day party 
primaries are held. Id., 256 Ark. at 363-62. Since directors 
were to be non-partisan positions, the likely confusion to 
voters required invalidation of the Act. Id.

It is the coincidence of Mr. Hollingsworth s election and



A-81

passage of Act 168 that leads the majority to conclude that this 
statute was motivated by his election. But why the majority 
concludes that it was Mr. Hollingsworth s race, rather than 
his small plurality victory, that motivated the legislature is 
never explained. And for reasons already discussed above, the 
State has been deprived in this case of the opportunity to even 
offer a neutral justification for this enactment. Cf. Rybicki v. 
Stte Board o f  Elections, supra. Allowed to move beyond the 
incomplete and distorted record, however, we get a very 
different picture than the one drawn by the majority.

At the time the General Assembly passed Act 168, black 
legislators had been elected to both houses of the General 
Assembly. It is reasonable to conclude that they would have 
voiced opposition to Act 168 if they believed the statute was 
racially-motivated. Yet Act 168 passed both houses unani­
mously. The votes were 26-0 in the Senate, and 69-0 in the 
House. Journals of Arkansas House of Representatives and 
Senate (1973). This result suggests then that neutral 
justifications for Act 168 outweighed concerns, even among 
black legislators, about the effect this law might have on black 
candidates and voters and undermines the inference of racial 
animus. Second, it must be remembered that some legislative 
response following the election of a candidate by a 35 percent 
plurality is consistent in a state that amended its constitution 
to provide for run-offs shortly after the nomination of a 
gubernatorial candidate by only 32 percent of the vote. See 
Whitfield, supra. Nor were majority requirements in muni­
cipal elections new. In Little Rock, prior to adoption of the 
city-manager government, city aldermen were selected at 
both the general and primary elections by majority vote. 
Leadership Roundtable  v. City o f  Little Rock, supra, 499 
F.Supp. at 585.



A-82

Third, if it was race that motivated the legislature to pass 
Act 168, then why did the State not so react back in 1968 when 
a black candidate, Mr. Bussey, was elected to the Little Rock 
Board of Directors? Id., at 588. One likely explanation is that 
Mr. Bussey’s 41 percent plurality election did not raise the 
same alarm as the much smaller, but nonetheless victorious, 
vote received by Mr. Hollingsworth. The different outcomes 
following the elections of blacks by plurality votes to 
municipal government supports the inference that election by 
pluralities below a certain point, rather than race, motivated 
passage of Act 168.

Finally, the effect of the Mears decision must also be 
taken into account both with respect to Act 168 and the 
General Assembly’s most recent majority-vote provision 
found in Act 905 of 1989- Mears did not prevent the 
legislature from re-enacting a majority-vote requirement so 
long as it was consistent with the non-partisan scheme of 
Board of Directors elections. A General Assembly bent on 
preventing blacks from winning municipal elections could 
have re-enacted a majority-vote statute before the 1976 
election in Little Rock, when Mr. Hollingsworth or other 
black candidates would again attempt to gain municipal office. 
However, no such effort was made. Nor did the legislature act 
in 1978 when Mr. Bussey was again elected to the city’s Board 
of Directors. Leadership Roundtable,  at 589- As in his earlier 
victory, Mr. Bussey won election that year by a plurality, but a 
substantial one of 46 percent. Id.

And so, since adopting the city manager form of 
government Little Rock directors have been elected solely on 
the basis of receiving the greatest number of votes. The effort 
in 1973 to to require majority elections came to naught after



A-83

Mears. And despite the election of black candidates to the 
Little Rock Board of Directors since, no majority vote 
requirements have been reenacted. Moreover, election by 
plurality in this city was recently codified through enactment 
of § 6 of Act 905 of 1989, Ark. Code Ann. § l4-47-109(c) 
(1989), other portions of which the majority concludes are 
discriminatory. It is instructive to jump forward then to this 
statute.

(2) Act 905 o f  1989
As discussed earlier, Act 905 of 1989, Ark. Code Ann. § 

14-42-206 (1989) creates municipal primary elections for all 
cities and towns in the State. Section 6 of the Act, Ark. Code 
Ann. § 14-47-109(c) excludes board of directors elections in 
municipalities with the city-manager form of government. 
This exemption was proposed by Representative Brown, who 
during the trial of this case testified that she looked upon Act 
905 with a "jaundiced” eye because it was proposed shortly 
after the election of Marion Humphrey. However, Rep. 
Brown’s position on this point must be seriously questioned, 
because despite her allegation at trial of discriminatory intent, 
she supported the passage of Act 905. In fact, the majority- 
vote statute passed the House unanimously with a vote of 
97-0. Arkansas Legislative Reports, 77th General Assembly, 
Regular Sess. (1989) (hereinafter "Legislative Reports”). It is 
also significant that there were four other black legislators in 
the House when Act 905 was being considered. Yet they too 
voiced no opposition at the critical moment of enactment.13

13In the Senate, Act 905 passed with a vote of 23-6. Legislative 
Reports. There was at this time at least one black state senator,and 
whether he was among those voting in opposition to the statute is 
unknown. At the very least, it is a piece of the legislative history that 
defendants would have likely developed had they been given notice that 
majority-vote statutes were to be an issue at trial.



A-84

W v-. -•

Nor does Rep. Brown’s sponsorship of a provision 
allowing plurality elections in municipalities with the city- 
manager form of government amount to an objection to the 
general principle of majority-vote requirements. First of all, 
Section 6 does no more than codify the effect of the Arkansas 
Supreme Court’s decision in Mean.  More important to the 
analysis of legislative intent, Section 6 of Act 905, or 
what could be termed the "Brown” Amendment to the 
"Humphrey” Act, would not have helped Judge Humphrey, 
who was purportedly the target of the Act. Nor would the 
"Brown” Amendment help black candidates in municipalities 
with the mayor/city council form of government. Section 6 
carves out an exception that effectively applies to very few 
cities in Arkansas. Meanwhile, the remaining provisions of 
Act 905 — which Rep. Brown and apparently every other 
black legislator in the House supported — imposes majority- 
vote requirements in most of the municipalities in the State. 
This includes those area where blacks constitute a substantial 
portion of the population, and where the majority has 
indicated it might enjoin the use of Act 905 in the future. I 
would find that neither Rep. Brown no any other legislator 
saw any danger posed by this statute to black voters or black 
candidates. It is simply disingenuous to conclude that a state 
law was enacted with discriminatory intent when no such 
objection was raised during the legislature’s deliberations, and 
when at least some of those who now make the accusation 
nonetheless supported its passage.

(3) Act 269 o f  1975
This Act required run-off elections for mayors of cities of 

the first class. The majority opinion states that it was passed 
in anticipation of the candidacy of Mr. Robert Handley, a 
black, for the office of mayor of Pine Bluff. Again the majority 
ignores much of the relevant history that is available and



A-85

chooses to conclude that it is self-evident that Rev. Handley’s 
candidacy motivated passage of Act 269- Again the majority is 
wrong.

As in the passage of Act 168 two years earlier, Act 269 
received unanimous support in both the House and Senate.14 
Once again this raises the inference that legitimate, non- 
discriminatory justifications outweighed opposition to the 
majority-vote requirement — even apparently from those 
black legislators who were then present in the General 
Assembly.

It is clear that Pine Bluff State legislators took a special 
interest in the passage of Act 269. Although originally 
proposed by a North Little Rock state senator, Pine Bluff 
representatives were chiefly responsible for steering the 
legislation through the General Assembly. PX 30fff. How­
ever, the proposition that Act 269 was motivated by the 
presence of a black candidate in the race for mayor, rather 
than the desire to avoid an election by plurality, cannot 
withstand scrutiny.

It is greatly significant that this conspiracy theory has 
been raised for the first time in this litigation — some fifteen 
years after the fact. Although the record contains numerous 
exhibits consisting of newspaper accounts of the 1975 Pine 
Bluff mayoral race, and the passage of Act 269, no contem­
poraneous objection to the run-off provision was raised by any 
candidate. Nowhere do we find Rev. Handley, or any other 
political leader, expressing the opinion at the time of the 
election that race played a role in the passage of Act 269. In 
fact, as he prepared for the run-off against Charles Moore,

14 Act 168 of 1973 was passed in the Senate with a vote of 26-0; in the 
House, the vote was 69-0. Legislative Reports at S-N-5.



A-86

Rev. Handley expressed the belief that race would not likely 
play a significant role in determining who the next mayor of 
Pine Bluff would be. PX 30m.

Pine Bluff’s only black state representative, Henry 
Wilkins III, did attempt to insert an amendment that would 
have delayed the effective date of Act 269 until after the 
mayoral election. PX30fff and PX 24 at 352. His reasons for 
wanting such a delay are unknown. However, as the final 
House vote indicates, Rep. Wilkins did not manifest any 
opposition to the majority-vote requirement in general since 
he ultimately did not oppose passage of the Act. Had he 
believed at the time that Act 269 was racially motivated, it 
seems reasonable to assume that Rep. Wilkins, as well as 
other black legislators, would have voiced opposition to the 
statute by voting against it.

The poltical climate of the city at the time of the passage 
of Act 269 must also be considered. Again this evidence does 
not support the inference that race motivated passage of the 
majority-vote requirement. In Dove  v. Moore ,  539 F.2d 1152 
(8th Cir. 1976), the court of appeals affirmed a district court’s 

^  determination that the City of Pine Bluff s at-large system of
electing city council members was neither created nor 
maintained for the purpose of discriminating against black 
citizens. In assessing the evidence, the court found significant 
several factors that are equally relevant to the present case:

(1) "that the black residents of Pine Bluff have full,
open, and equal access to the city’s political processes;”

(2) "that they play an active and significant political role
in city politics;”

(3) that although "the at-large system is not designed to



A-87

maximize the number of minority candidates elected, it 
serves other values . . . [including the creation of a 
system in which] every candidate has a 40 percent black 
constituency which cannot be ignored with impunity.”

(4) "that blacks and whites alike have rejected race as 
the overriding criterion in voting for candidates in Pine 
Bluff city elections.”

Id., at 1154.

To illustrate the latter factual finding, the court of 
appeals specifically referred to the 1975 mayoral election 
involving Rev. Handley.

Mayor [Austin] Franks’ resignation in April of 1975 
necessitated a special election. Four white candidates and 
one black candidate sought to succeed Mr. Franks as 
mayor. All of the white candidates campaigned actively 
in black areas. One of the white candidates received 
substantial black support, including active participation 
of local black leaders in his campaign. In a grouup of 
precincts identified as being from 90 percent to 100 
percent black, the white candidates received 25 percent 
of the vote, and in one such precinct their support was as 
high as 44 percent. Yet, despite this"diversion” of black 
votes, the black candidate, Rev. Robert Handley, received 
the second highest number of votes cast and thus was in a 
runoff election, which he lost.

Id., at 1154.

When fully analyzed, the picture that emerges does not 
support they type of conspiratorial motives that the plaintiffs 
and the majority now attach to the proponents of Act 269. 
Plaintiffs cite a newspaper article that mentions that the 
legislators realized "the effect [the run-off provision] would



A-88

*' ^  •'wy**- -

have on the special election.” PX 30fff. But this does not 
prove racial* animus. It would be ludicrous to assume that 
politicians would fail to appreciate the importance of having a 
run-off apply to a city where the number of candidates in an 
up-coming election made it highly likely that no person would 
receive a majority of the vote. However, that the race of one of 
the five candidates also played a motivating role in the 
legislation as a whole is simply unsupported given the totality 
of relevant circumstances surrounding the election.

Finally, it should be noted that when the General 
Assembly was considering Act 269, an amendment that would 
have limited its application to only Pine Bluff and North 
Little Rock was proposed and rejected by the legislature. PX 
30fff. Had the General Assembly been aiming only at the 
anticipated race of Rev. Handley, such a limitation would be 
some evidence of such a focus. The rejection of this 
amendment and application of Act 269 to all ernes  of the first 
class is strong evidence that — regardless of the discrimi­
natory intent of some few legislators — legitimate, non- 
discriminatory motives predominated in the passage of the 
Act. See Mt. Healthy, supra.

(4) Act 909 o f  1983
To the extent the majority can be said to have felt any 
reluctance to impute illicit motives to the General Assembly 
and the Governor, such restraint has been outweighed by 
what they see as the self-evident duplicitous justification for 
majority vote requirements. Again note Judge Arnold’s 
language:

Devotion to majority rule for local offices lay dormant as 
long as the pluralty system produced white office­
holders. But whenever black candidates used this system 
successfully----[l]aws were passed in an attempt to close

, v c O - V f - .f lW !s  •
:■ *  >



< f( this avenue of black polirical activity.
Majority op. at 24.

I here is, as I point out above, no comparative data in the 
record to support the majority's assumption that white 
candidates had been repeatedly elected by similar pluralities 
without legislative response. What a full trial would have 
revealed about plurality elections in Arkansas we can only 
speculate. Yet this only further vindicates the wisdom of our 
due process requirements of notice and an opportunity to be 
heard. It is astounding when one compares the record in this 
case with that in Butts v. City o f  New York, supra, where the 
legislative motive for the enactment of a challenged run-off 
statute was truly litigated.

A -89

The closest we come to evidence of disparate treatment is 
plaintiffs recitation of the facts leading to the passage of Act 
909 of 1983, Ark. Code Ann. § 7-5-106 requiring a run-off 
unless a condidate receives a majority of the vote in the 
general election for county and municipal offices. Upon closer 
examination, however, it is clear plaintiffs either mis­
understood or misstated the relevant facts leading to the 
passage of this Act.

According to plaintiffs, Act 909 was passed by the 
General Assembly in quick response to the 1982 plurality 
election of Leo Chitman, a black man, as mayor of West 
Memphis. Again, according to the plaintiffs, the first runner- 
up and white incumbent, Mayor Joyce Fergeson, had herself 
been elected in 1980 by a plurality. Thus, plaintiffs argue:

The fact that Fergeson had been elected by a plurality 
without prompting enactment of a runoff requirement 
demonstrates that it was the fact that Chitman is black,



A-90

rather than his percentage of the vote, that spurred the
legislature into action.

Plaintiff’s Post-trial Brief at 93.

Plaintiffs misstate the facts.

Before discussing the passage of the so-called "Chitman" 
Act, it is necessary to review briefly the state of majority-vote 
requirements for most municipalities immediately prior to its 
passage. As already discussed, long before the Chitman- 
Fergeson race, Act 269 of 1975 provided that all first-class 
cities with mayor/council forms of government, including the 
City of West memphis, were required to hold run-offs within 
two weeks of the election if no candidate for municipal office 
received a majority of the vote. Ferge son  v. Brick, 279 Ark. 
288, 289-90 (1983).

In 1977, the General Assembly passed Act 175 declaring 
the run-offs would henceforth apply only to those cities with 
populations between 57,000 and 61,000. Id. This effectively 
limited application of the run-off law to North Little Rock 
and Pine Bluff. Id. It was the same amendment that the 
legislature considered and rejected two years earlier when Act 
269 was originally adopted. Again, the incomplete record 
leaves us with no information that would allow us to 
determine why the legislature changed its mind in 1977 and 
passed the limiting amendment. It is known, however, that 
the amendment received near unanimous support passing the 
House by a vote 79-2, and the Senate by 30-1. Legislative 
Reports, supra.

This amendment is significant here for the purpose of 
evaluating Act 909- In truth, had Act 175 of 1977 not been 
passed, Mr. Chitman would have been forced into a run-off



A-91

in his mayoral race for West Memphis. As it was, he won by a 
plurality. The effect of Act 909 of 1983, as far as Mr. Chitman 
is concerned, is that it returned the law to the status that it was 
in immediately after the enactment of Act 269 of 1975. So the 
idea that the law requiring run-offs for mayors of cities of the 
first class was first passed in response to Mr. Chitman's 
election in 1982 is simply not true. That same legislative 
intent had been expressed in the 1975 Act long before his 
candidacy.

In the 1982 election for mayor of West Memphis, Leo 
Chitman narrowly defeated Joyce Fergeson by a margin of 0.8 
percent of the vote. Neither gained a majority. Mr. Chitman 
received a 27.9 percent plurality while Mrs. Fergeson received 
27.1 percent. 15Since the run-off provisions of Act 269 no 
longer applied to West Memphis, Mr. Chitman was certified 
the winner.

Following her defeat, Mrs. Fergeson then challenged the 
constitutionality of Act 175 of 1977. Specifically, she sought 
the invalidation of the run-off amendment on the ground that 
its limitation to first-class cities within a narrow and 
seemingly arbitrary population range violated the State 
constitution. Ferge son  v. Brick, supra, 279 Ark. at 290.

The Arkansas Supreme Court agreed but declined to 
grant Fergeson the relief sought, namely, invalidation of Mr. 
Chitman’s election as mayor. The court explained that Mrs. 
Fergeson had consciously chosen to forego an earlier 
challenge to Act 175 although she was aware that the new 
amendment would mean that the 1982 election in West

15A total of 7,636 ballots were cast for the field of six candidates. 
Chitman received 2,130 votes and Fergeson 2,069. This difference, 61 
votes, represents less than one percent of the total votes cast (0.8%).



A-92

Sii-A> '*<•

Memphis could thus be decided by a plurality. Noting 
Fergeson’s initial disinterest with this change in the law, the 
Arkansas Supreme Court explained ”[s]ince she received 
about 70 percent of the vote in the [ 1980] election, she did not 
complain about [Act 174].” Id., at 291. So plaintiffs’ statement 
that Fergeson had herself been elected by a plurality in 1980 is 
false.

Following the Ferge son  decision, the General Assembly 
passed Act 909 requiring run-offs in all municipal and county 
elections. Only municipalities with the city-manager form of 
government, such as Little Rock, were excluded. The effect 
was to remove the limitation that the Arkansas Supreme 
Court had found arbitrary in Fergeson.  However, contrary to 
plaintiffs’ assertions there is no demonstration that the 
legislature was spurred to action simply because a black 
candidate had been elected mayor. Rather, the legislature 
acted reasonably to correct a defect in recently invalidated 
statute as well as to avoid bizarre election results in the future.

f. The Remed i e s  Impo s ed
Having ruled that the enactments of the four run-off 

statutes violated the Constitution, the majority opinion then 
turns to the consequence in terms of remedy. The most 
interesting statement in this regard is found in footnote 7 to 
its opinion:

This does not mean that our decree in this case will 
enjoin the enforcement of the existing run-off statutes 
for county and municipal offices. For one thing, the 
evidence of illicit motivation applies only to municipal 
elections in portions of the State with substantial 
minority populations. And for another, plaintiffs at the 
oral argument at the close of the trial in this case



A -93

disclaimed any desire for such relief. They bring up the 
series of municipal run-off statutes only as constitutional 
violations justifying preclearance under Section 3(c). 
Whether and to what extent these statutes may continue 
to be validly applied must be left to a case-by-case 
determination in the future. At least this much, though, 
can be said: If a black candidate leads in the first election 
and then is defeated in a run-off required by either Ark. 
Code Ann. § 7-5-106 or § 14-42-206, the election will be 
vulnerable to a strong constitutional challenge.

So while the majority concludes that these run-off statutes 
were enacted in violation of the Constitution, and further 
concludes that such violations constitute the basis for the 
Court's preclearance order, still it does not strike them down 
or hold them invalid! Having served their purpose, they are 
left "twisting in the wind,” so to speak, to the great confusion 
of the citizens of this State.

Why this strange result; why not enjoin the enforcement 
of these statutes if they were unconstitutionally enacted? 
Because, we are told, "For one thing, the evidence of illicit 
motivation applies only to municipal elections in portions of 
the State with substantial minority populations.” Majority op. 
at 25, n.7. Is the Court saying that if it enjoined the 
enforcement of such statutes, that could only be done in 
certain counties or areas with "substantial minority popula­
tions” but not in areas with "insubstantial” minority popula­
tions? And note that the majority does not explain what tt 
means by "substantial.” So many officials of the State, and 
possible candidates, are left to speculate how the federal 
courts will deal with the use of the run-off statutes in their 
areas. Obviously a very unhealthy situation.



A-94

^5-.9f#?"*<.v ->°x x v ;,

Another reason for die majority's decision not to enjoin 
the enforcement of the existing run-off statutes is: Plaintiffs 
. . . disclaimed any desire for such relief.” Majority op. at 25, 
n.7. 1 have already expressed reservations about courts’ 
leaving the choice of remedies up to the "desire" of the 
parties, s e e  J e f f e r s  v. Clinton, supra, 730 F.Supp. at 262-63, but 
1 also question why the plaintiffs do not seek to enjoin the 
enforcement of those run-off statutes. Could it be that they 
knoiv such statutes have no discriminatory effect and that they 
can only be useful in the Whitf ie ld  context as a trap for the 
unwary? In other words, when the law is clear one way or the 
other that either plurality-win or majority-win rules apply, 
there is no racially discriminatory effect. But if a run-off 
statute is left in effect but places under a judicial cloud, then 
opportunity is sensed — albeit not fair and equal opportunity. 
The majority holds that the validity of the run-off statutes 
"must be left to a case-by-case determination in the future." 
Then it states:

If a black candidate leads in the first election and then is 
defeated in a run-off. . . the election will be vulnerable to 
a strong constitutional challenge.

Id.

The majority further states:

Plaintiffs have not requested equitable relief with respect 
to these particular majority-vote statutes, except for 
preclearance itself, but equitable relief in the nature of an 
injunction or a declaratory judgment would clearly be 
justified, especially to prevent the statutes from being 
used in the future to deprive a black condidate receiving a 
plurality of the office for which he or she is running.

Majority op. at 41.



A-95

Let us call this the "Jeffers invitation.” Frankly, I believe this 
solution to be unseemly. It says to black candidates, let your 
opposition believe that the run-off laws are in effect and will 
be followed. Then if you lead in the preferential primary, you 
will have it made whether or not you win in the run-off. Why? 
because the federal court has invited you to ask it to declare 
you the winner. And it is telling you that you have a "strong 
constitutional challenge” and that you do not have to conform 
to the same rules as your white opponents. Shame! The 
judicial enthronement of unprincipled chance and racial 
preference!

And if we are going to give racial preferences in this 
unprincipled game of judicial roulette, what standards shall 
we use for racial qualification? If the father of the candidate 
leading after the first election is black and the mother white, is 
that sufficient? If one grandparent is black and the rest of the 
ancestors white, is that enough? Just who are the potential 
beneficiaries of this race-conscious ruling?

IV. CONCLUSION

In my earlier dissent, I made the point that while race 
conscious preferences might withstand constitutional muster 
in other areas, certainly they cannot in the political arena. And 
I attempted to point out the dangers inherent in the majority’s 
contrary position — particularly its appeal to separateness 
and parochialism. Others have noted different causes for this 
retreat from our "melting pot” tradition. For instance, 
Professor Arthur Schlesinger, commenting on "Ethnic 
Studies” in the April 23, 1990 Wall Street journal, states:

The melting pot was one of those metaphors that turned 
out only to be partly true, and recent years have seen an 
astonishing repudiation of the whole conception. Many



A-9 6

Americans today righteously reject the historic goal of "a 
new race of man. 1 he contemporary ideal is not 
assimilation but ethnicity. The escape from origins has 
given way to the search for "roots.” "Ancient prejudices 
and manners — the old-time religion, the old-time diet 
— have made a surprising comeback.

These developments portend a new turn in American 
life. Instead of a transformative nation with a new and 
distinctive identity, America increasingly sees itself as 
preservative of old identities. We used to say e pluribus 
unum. Now we glorify pluribus and belittle unum. The
melting pot yields to the Tower of Babel.

*  #  *

We should take pride in our distinctive inheritance as
other nations take pride in their distinctive inheritances.

* * #
If \Ve repudiate the quite marvelous inheritance that 
history has bestowed on us, we invite the fragmentation 
of our own culture into a quarrelsome spatter of enclaves, 
ghettos and tribes. The bonds of cohesion in our society 
are sufficiently fragile, or so it seems to me, that it makes 
no sense to strain them by encouraging and exalting 
cultural and linguistic apartheid. The rejection of the 
melting pot points the republic in the direction of 
incoherence and chaos.

Once race based political preferences are accepted, 
they will quickly gain the status of a "group right” from which 
it will be most difficult to retreat. Once we slide down that 
slippery slope, it will be almost impossible to regain the high 
ground of constitutional purity reflected in the concept of 
total equality.



/%

What is required, what all must insist upon, is fair and 
equal opportunity for all to participate in the political process 
— nothing more, nothing less. This is what the Voting Rights 
Act and our Constitution require. This principle energizes the 
American spirit at its best. It is because the great majority of 
our citizens believe in fairness and in the imperative of equal 
opportunity that we have made progress in the never-ending 
battle against discrimination. When the law stands for 
fairness and equal opportunity, it is respected and followed — 
often enthusiastically, sometimes grudgingly, but followed. 
But let the law stand for special privilege and racial or 
language preferences, or for minority rule, and a new dynamic 
of resentment takes over, fueling the arguments of erstwhile 
discredited bigots and enervating and confusing the fair and 
decent among us. At the very moment in our history when the 
sun is rising and a new day dawning, the law should not force 
us backward. And, despite any impatience federal courts may 
have with majoritarian democratic decisions, those courts 
would do well to remember that the whole American 
enterprise is bottomed on the principle that The P eop l e  Rule. 
We sacrifice that principle at our great peril!

I believe the majority’s views as previously expressed in 
its opinions on Section 2 of the Voting Rights Act and in its 
opinion filed today on the constitutional issues are wrong 
—bad wrong. Therefore, on the latter issues, I must dissent 
from the majority’s conclusion that plaintiffs have established 
any constitutional violations justifying equitable relief within 
the State of Arkansas with respect to voting rights. There 
being no other predicate for imposition of preclearance, I 
must also dissent from the majority’s grant of relief under 
Section 3(c) of the Act.

/s/ Garnett Thomas Eisele
United States District Judge

A-97



A-98

IN THE UNITED STATES DISTRICT COURT  
EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION

NOTICE OF APPEAL TO THE UNITED 
STATES SUPREME COURT

Notice is hereby given that, pursuant to Supreme Court Rule 
18.1 and 28 U.S.C. §1253, defendants, Bill Clinton, W. J. McCuen, 
Steve Clark, the Arkansas Board of Apportionment, hereby appeal 
to the Supreme Court of the United States from the injunctive order 
entered by the three-judge court in this action on May 16, 1990.

This appeal is taken pursuant to Title 28, U.S. Code §1253, 
which provides that "any party may appeal to the Supreme Court 
from an order granting or denying, after notice and hearing, an 
interlocutory or permanent injunction in any civil action. . . .”

Attorney General 
B: TIM HUMPHRIES, #84080 
Assistant Attorney General 
FRANK J. WILLS, III, #80162 
Assistant Attorney General 
MARCUS VADEN, #89126 
Assistant Attorney General 
200 Tower Building 
4th & Center Sts.
Little Rock, Arkansas 72201 
(501) 682-2007 
Attorneys f o r  Defendants

M. C. Jeffers, et al Plaintiffs

v. No. H-C-89-004

Bill Clinton, et al. Defendants

Respectfully submitted,
STEVE CLARK



A -99

CERTIFICATE OF SERVICE

I, Tim Humphries, Assistant Attorney General, do 
hereby certify that I have this 13th day of May, 1990, served 
the foregoing by mailing a copy of same, U.S. Mail, postage 
prepaid, to Les Hollingsworth, Lead Attorney for Defendants, 
Hollingsworth Law Firm, P.A., Main Place Building, 415 
Main Street, Little Rock, AR 72201.

/s/ Tim Humphries

ii

LIST OF PARTIES

The Petitioners, who were defendants in the action 
below, are Bill Clinton, the Governor of Arkansas, W. J. 
McCuen, the Arkansas Secretary of State, and Steve Clark, the 
Arkansas Attorney General, all in their official capacities and 
as members of the Arkansas Board of Apportionment. The 
Respondents, who were plaintiffs in the action below, are 
M. C. Jeffers, A1 Porter, Evangeline Brown, Clyde Collins, 
O. C. Duffey, Earl Foster, The Reverend Ellihue Gaylord, 
Shirley M. Harvell, Linda Shelby, J. C. Jeffries, Lavester 
McDonald,Joseph Perry, Clinton Richardson, T. E. Patterson, 
Ernest Simpson, Bryan Smith, and Charlie Statewright.



SUPREME COURT OF THE UNITED STATES

No. A-110

Bill Clinton, Governor of Arkansas, et al. 

v.

M. C. Jeffers

A-100

ORDER

UPON CONSIDERATION of the application of counsel 
for the appellants

IT IS ORDERED that the time to docket an appeal in the 
above-entitled case, be and the same is hereby, extended to 
and including 31 August, 1990.

/s/ Harry A. Blackmun 
Associate Justice of the Supreme 

Court of the United States

Dated this 9th day of August, 1990.

*

• jrr;