White v. Daniel Motion for Leave to File Brief Amicus Curiae

    No. 90-891

In The

ihqjrrmr (ta r t nf %  Imtrli ^tatra
October Term, 1990

C h a r l e s  W h i t e , et al,
Petitioners,

R a y m o n d  S . D a n i e l , et al,
Respondents.

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

for the Fourth Circuit

MOTION OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS' UNDER LAW 

FOR LEAVE TO FILE: BRIEF AS AMICUS CURIAE AND 
BRIEF AS' AMICUS CURIAE 

IN SUPPORT OF THE PETITION

Stephen J. Pollak
(Counsel of Record)

J. T heodore Gentry 
Shea & Gardner 
1800 Massachusetts Avenue, N .W . 
Washington, D.C. 20036 
(202) 828-2000

Robert F. Mullen 
David S. Tatel 

Co-Chairmen 
Norman Redlich 

Trustee
Barbara R. Arnwine 
T homas J. Henderson 
F rank R. Parker 
Brenda Wright 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N .W . 
Washington, D.C. 20005 
(202) 371-1212

January 7 ,1991 Counsel for Amicus Curiae

WIJ.SON -  Epes  P r in tin g  C o . . In c . -  7 8 9 - 0 0 9 6  - W a sh in g to n , D .C . 2 0 0 0 !



In The

Bupnm? (tart tit tip Imtrft
October Term, 1990

C h a r l e s  W h i t e , et al,
Petitioners,

v .

R a y m o n d  S. D a n i e l , et al,
Respondents.

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

for the Fourth Circuit

MOTION OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

FOR LEAVE: TO FILE. BRIEF' AS AMICUS CURIAE 
IN SUPPORT1 OF THE PETITION

The Lawyers’ Committee for Civil Rights Under Law 
seeks leave to file the annexed brief as amicus curiae in 
support of the petition of Charles White, et al., for a 
writ of certiorari.1

The Lawyers’ Committee is a non-profit organization 
created in 1963 at the request of the President of the 
United States to involve private attorneys throughout the 
country in the national effort to assure equal rights to

1 Pursuant to Rule 37 of this Court, the Lawyers’ Committee has 
requested the parties’ consent to the filing of the attached brief. 
A  letter indicating petitioners’ consent has been filed with the Clerk 
of the Court. Respondents have withheld their consent.



all Americans. Protection of the voting rights of citizens 
has been an important aspect of the work of the Com­
mittee; it has provided legal representation to litigants 
in numerous voting rights cases throughout the nation 
over the last 27 years,2 and has submitted briefs amicus 
curiae to this Court in many voting rights cases.3

This case involves application of the laches doctrine to 
suits under § 2 of the Voting Rights Act, 42 U.S.C. 
§ 1973. The Fourth Circuit’s decision would erect a per 
se bar to many § 2 redistricting suits filed toward the 
end of a decade, and thus has significance beyond the 
facts of this case. The Lawyers’ Committee regularly 
represents plaintiffs in § 2 actions, and this ruling, if 
allowed to stand, will impair the Committee’s ability to 
vindicate the rights of its clients. The Committee there­
fore has a substantial interest in the outcome of this 
case.

In the accompanying brief, we present arguments sup­
plementary to those advanced by petitioners. In particular, 
we show that the Fourth Circuit’s ruling, rather than 
being limited to the particular circumstances of this case, 
would preclude many end-of-decade § 2 redistricting suits. 
We also show that, in finding laches, the court of appeals 
failed to consider the impact of the purposes and policies 
of the Voting Rights Act on the application of that com­
mon law doctrine. These points will supplement those 
presented by the parties and may assist the Court in its

2 For example, the Lawyers’ Committee represented a class of 
black citizens of Mississippi in reapportionment litigation which was 
before this Court on several occasions: Connor v. Johnson, 402 U.S. 
690 (1971) ; Connor v. Williams, 404 U.S. 549 (1972) ; Connor V. 
Waller, 421 U.S. 656 (1975) ; Connor v. Coleman, 425 U.S. 675 
(1 9 7 6 ); Connor v. Finch, 431 U.S. 407 (1 9 7 7 ); Connor v. Coleman, 
440 U.S. 612 (1979) ; id., 441 U.S. 792 (1979) ; United States v. 
Mississippi, 444 U.S. 1050 (1980).

3 E.g., Thornburg v. Gingles, 478 U.S. 30 (1986) ; Rogers V. 
Lodge, 458 U.S. 613 (1982) ; City of Mobile v. Bolden, 446 U.S. 55 
(1980).



consideration, of the petition. We accordingly ask that 
the motion for leave to file the attached brief be granted.

January 7 ,1991

Respectfully submitted,

Stephen J. Pollak 
(Counsel of Record)

J. Theodore Gentry 
Shea & Gardner 
1800 Massachusetts Avenue, N.W. 
Washington, D.C. 20086 
(202) 828-2000

Robert F. Mullen 
David S. Tatel 

Co-Chairmen 
Norman Redlich 

Trustee
Barbara R. Arnwine 
T homas J. Henderson 
F rank R. Parker 
Brenda Wright 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212 

Counsel for Amicus Curiae



QUESTION PRESENTED
Whether the doctrine of laches bars end-of-decade re­

districting suits under § 2 of the Voting Rights Act.

(i)





TABLE OF CONTENTS
Page

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

INTEREST OF AMICUS CURIAE ...___ __________ 1

REASONS FOR GRANTING THE WRIT ................  1
I. THE DECISION BELOW WOULD BAR 

MANY END-OF-DECADE § 2 REDISTRICT­
ING SUITS ............................................ ........... . 2

II. THE DECISION BELOW THREATENS TO 
PRECLUDE RELIEF UNTIL AFTER THE 
1991 ELECTION .......................... ...................... . 5

III. THE DECISION BELOW IMPAIRS THE
PROTECTIONS OF §2 OF THE VOTING 
RIGHTS ACT .............     7

IV. THE DECISION BELOW CANNOT BE JUS­
TIFIED ON GROUNDS OF LACHES.............  8
A. The Elements of Laches Are Not Satisfied

Here ..............        8
B. The Fourth Circuit Failed To Give Effect to

the “Gravitational Pull” of the Voting 
Rights Act on the Federal Common Law 
Doctrine of Laches.......................................  10

CONCLUSION...............................................................  12

(iii)



IV

TABLE OF AUTHORITIES
Cases: Page

Armour V. Ohio, vacated for reh’g en banc, 895
F.2d 1078 (6th Cir. 1990) .......... ......................  7

Bishop V. Lomenzo, 350 F. Supp. 576 (E.D.N.Y.
1972) ....................................................................  3,11

Bandemer V. Davis, 603 F. Supp. 1479 (S.D. Ind.
1984), rev’d, 478 U.S. 109 (1986) __________ _ 7

DeitricJc V. Greaney, 309 U.S. 190 (1940) ............  10
Garza V. County of Los Angeles, 1990 U.S. App.

Lexis 19470 (9th Cir. 1990) (to be reported at
918 F.2d 763) ..............................................     2, 7

Gingles V. Edmisten, 590 F. Supp. 345 (E.D.N.C.
1984), aff’d in part and rev’d in part sub nom.
Thornburg V. Gingles, 478 U.S. 30 (1986)......... 7

Gunn V. Chickasaw County, 705 F. Supp. 315
(N.D. Miss. 1989) .......... ................................... . 7

Harman V. Forssenius, 380 U.S. 528 (1965).........  10
Hershcopf V. Lomenzo, 350 F. Supp. 156 (S.D.N.Y.

1972) ..... ............................................................... 11
Jeffers V. Clinton, 730 F. Supp. 196 (E.D. Ark.

1989) .............................................................. 7, 9,10, 11
Jordan V. Winter, 604 F. Supp. 807 (N.D. Miss.), 

aff’d mem. sub nom. Mississippi Republican Ex­
ecutive Comm. V. Brooks, 469 U.S. 1002 (1984).. 8

Ketchum V. Byrne, 740 F.2d 1398 (7th Cir. 1984),
cert, denied, 471 U.S. 1135 (1985) .....................  7

Knox V. Milwaukee County Bd. of Election
Comm’rs, 607 F. Supp. 1112 (E.D. Wis. 1985).. 7,11 

Major V. Treen, 574 F. Supp. 325 (E.D. La. 1983).. 8
Maryland Citizens for a Representative General 

Assembly V. Governor of Maryland, 429 F.2d
606 (4th Cir. 1970)............................... ....... ......  4

McDaniels V. Mehfoud, 702 F. Supp. 588 (E.D. Ya.
1988), appeal pending, No. 90-3061 (4th Cir,).... 7

Morton Salt Co. V. Suppiger Co., 314 U.S. 488
(1942)  .......................... ..................................... 10

Neal V. Coleburn, 689 F. Supp. 1426 (E.D. Va.
1988)  ................................. .................................  7

Reynolds V. Sims, 377 U.S. 533 (1964) .................. 4, 5



V

TABLE OF AUTHORITIES—Continued
Page

Rybicki v. State Board of Elections, 574 F. Supp.
1147 (N.D. 111. 1983) ................ ..... ........... .......  8

Seastrunk V. Burns, 772 F.2d 143 (5th Cir. 1985).. 8
Simians v. Gressette, 631 F,2d 287 (4th Cir.

1980) .............  4
Smith V. Clinton, 687 F. Supp. 1310 (E.D. Ark.

1988)...................       7
Smith V. Clinton, 687 F. Supp. 1361 (E.D. Ark.),

aff’d mem., 488 U.S. 988 (1988) ............... ........  7
South Carolina V. Katzenbach, 383 U.S. 301

(1966) ______________________ ___ _________ 7, 11
Terrazas v. Clements, 581 F. Supp. 1329 (N.D.

Tex. 1984)..........        8
Washington V. Tensas Parish School Bd., 819 F.2d

609 (5th Cir. 1987).............. ....... .................. . 8
Yick Wo V. Hopkins, 118 U.S. 356 (1886).............  10

Statutes:
Voting Rights Act:

Section 2, 42 U.S.C. § 1973 (1988)__________ passim
Section 5, 42 U.S.C. § 1973c (1988) ........... .....  5

13 U.S.C. § 141 (1988)............... ............................. 5
Va. Code Ann. § 24.1-166 (B) (1) (1985)............   5
Va. Code Ann. § 24.1-174 (1985)...........   5
Va. Code Ann. § 24.1-184 (1985) .............................  5

Regulations:
28 C.F.R. §51.37 (1989) ........ ................................. 5

Miscellaneous:
G. Calabresi, A Common Law for the Age of Stat­

utes (1982) ..................... ..................... ............. 10



In The

ît|irrmr (tart uf tip Imtrft i ’tatrs
October Term, 1990

No. 90-891

Charles White, et at.,
Petitioners,

v.

Raymond S. Daniel, et at.,
Respondents,

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

for the Fourth Circuit

BRIEF OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE IN SUPPORT OF THE PETITION

INTEREST OF AMICUS CURIAE
The interest of amicus curiae is set forth in the ac­

companying motion for leave to file this brief.

REASONS FOR GRANTING THE WRIT
The decision below, if allowed to stand, threatens to 

bar many end-of-decade redistricting suits under § 2 of 
the Voting Rights Act. That is the startling result of 
the court of appeals’ holding that laches is a complete



2

defense to enforcement actions brought toward decade’s 
end and after the last scheduled election under the chal­
lenged apportionment plan: in the court’s view, the tim­
ing of such actions necessarily constitutes undue delay 
by the plaintiffs and causes prejudice to the defendants. 
As we show below, this sweeping application of laches 
virtually precludes meaningful relief for petitioners be­
fore the next scheduled election, and threatens to bar 
enforcement actions in the very years in which, experi­
ence shows, many are likely to be brought.

We also show that the decision fundamentally misap­
plies the doctrine of laches. It neglects to consider rele­
vant facts (such as the identity and circumstances of 
the plaintiffs), treats the necessary costs of dismantling 
a discriminatory voting scheme as a cognizable “preju­
dice” to defendants, and fails to consider the applicability 
of this common, law defense in the context of the broadly 
remedial purposes of the Voting Rights Act.

The creation of a per se end-of-decade bar to § 2 re- 
districting suits would undermine the congressional goals 
embodied in. the Voting Rights Act. For that reason— 
and because the decision below conflicts with Garza v. 
County of Los Angeles, 1990 U.S. App. Lexis 19470 (9th 
Cir. 1990) (to be reported at 918 F.2d 768)'—the Court 
should grant review. I.

I. THE DECISION BELOW WOULD BAR END-OF- 
DECADE § 2 REDISTRICTING SUITS.

The court of appeals noted that application of laches 
“ depends upon the particular circumstances of the case.” 
Pet. App. at 10. Yet, the striking fact about its reason­
ing is that it would bar virtually all § 2 redistricting 
suits brought toward the end of one decade or the be­
ginning of the next. That is because the court applied 
laches solely on the basis of the time in the decade when 
this suit was brought, without any real consideration of 
the particular circumstances and equities of the parties.



3

Thus, the court based its finding that petitioners' had 
unreasonably delayed their suit almost entirely on the 
lateness in the decade of the filing. Id. at 11-12. It did 
not consider other relevant factors, such as: the time 
each petitioner had resided in the county; how long each 
petitioner had been of voting age and a registered voter; 
each petitioner’s subjective knowledge of the violation; the 
existence of racial harassment,1 financial constraint, or 
some other factor that prevented or discouraged earlier 
filing; the possibility that, although originally innocuous, 
the plan had become discriminatory through population 
shifts ; and finally, whether petitioners as a practical mat­
ter represented the interests of others who could not be 
said to have unreasonably delayed had they been included 
as parties.1 2 The court ignored these relevant factors by 
holding in essence that every redistricting suit filed to­
ward decade’s end is by definition unreasonably delayed.

The court of appeals’ finding of prejudice to defend­
ants also rested almost entirely on the approaching end 
of the decade, and the fact that the last, election under 
the existing apportionment scheme had been held. The 
court found prejudice in the possibility that there might 
be “ two reapportionments within a short period of two 
years,”  and the necessity of relying on 1980 census fig­
ures for any relief. Pet. App. at 15-16. We show below 
that these unavoidable costs of court-ordered reapportion­
ment are not the sort of prejudice that supports, the

1 The district court’s opinion described “a long history of dis­
crimination” in Brunswick County, Pet. App. at 24-29, including a 
“very active” Ku Klux Klan. in the 1960s. Id. at 27.

2 By their nature, successful Voting Rights Act suits will gen­
erally benefit others besides the named plaintiffs. See Bishop v. 
Lomenzo, 350 F. Supp. 576, 581 (E .D .N .Y . 1972) (because violation 
of Voting Rights Act could “affect the rights of thousands of 
qualified voters . . . enforcement of such an important federal law 
. . . should not be defeated because of laches on the part of the 
named plaintiffs” (emphasis added)). Thus, for example, the rights 
of any new residents and eighteen-year-old voters were at stake here.



4

laches defense. For present purposes it is enough to note 
that every successful § 2 lawsuit brought later in a 
decade will rely at least in part on data from the previ­
ous census and occasion judicial relief shortly before new 
census figures are released.

In short, the court of appeals’ laches findings could be 
made in any end-of-decade § 2 redistricting action. The 
facts of this case, moreover, show that the bar could 
easily extend for four to five years. In Brunswick 
County, the last regularly scheduled election of the 1980s 
for the Board of Supervisors was held in November 1987. 
The ruling below apparently bars any suit filed after that 
date, and earlier Fourth Circuit opinions on which the 
court relied bar suits filed in the months immediately 
preceding an election. Pet. App. at 13-14.3 Thus, any 
suit challenging the existing apportionment would have 
to have been filed in the early months of 1987 at the 
latest.

In the new decade, no suit can be entertained, under 
the court of appeals’ ruling, until the 1991 reapportion­
ment is in effect. See Pet. App. at 17 (“ It makes far 
more sense to await the 1990 census figures and the 1991 
reapportionment (if required) than for a court to in­
tervene at such a late hour.” ). The result is. a four-year 
hiatus in which no apportionment challenge can be 
brought.4 *

8 Simkins V. Gressette, 631 F.2d 287, 294-96 (4th Cir. 1980 ); 
Maryland, Citizens for a Representative General Assembly V. Gov­
ernor of Maryland, 429 F.2d 606, 609 (4th Cir. 1970). See also 
Reynolds V. Sims, 377 U.S. 533, 585 (1964), noting that “where an 
impending election is imminent and a State’s election machinery is 
already in progress, equitable considerations might justify a court 
in withholding the granting of immediately effective relief . . . .”

4 W hat constitutes an end-of-decade suit will depend in part on
the schedule of elections in the decade. In Brunswick County in 
the 1990s, for instance, elections for the Board of Supervisors are 
to take place in 1991, 1995, and 1999.



5

II. THE DECISION BELOW THREATENS TO PRE­
CLUDE RELIEF UNTIL AFTER THE 1991 
ELECTION

The court of appeals evidently believed that a grant 
of relief to plaintiffs now, after the last scheduled elec­
tion, of the 1980s, would be pointless because there will 
probably be a redistricting when the 1990 census results 
are returned, and plaintiffs will be free then to assert a 
“new justiciable cause of action.” Pet. App. at 17. In 
fact, however, there can be little realistic hope that such 
a suit would afford relief before the 1991 election.

After receiving the census data some time in 1991,5 
County officials will have to debate and, presumably, hold 
hearings before devising a new plan. The Justice De­
partment will then have to preclear any changes under 
§ 5 of the Act.6 Hence, it is almost inconceivable that a 
new plan could be in place before June or July.7 At the 
same time, candidates for the November election who are 
involved in primaries must declare for the primary in 
early April, Ya. Code Ann. § 24.1-184 (1985); and party 
primaries will be held on, and candidates not involved in 
primaries must declare by, June 11, 1991. Id. §§24.1- 
174, 24.1-166(B) (1). Even if a new redistricting plan 
were devised, approved, and precleared by early sum­
mer, the County would no doubt argue that a challenge 
then would be inappropriate, since its “ election machin­
ery is already in progress.”  Reynolds v. Sims, 377 U.S. 
at 585. See supra note 3. Accordingly, the court of ap­
peals’ decision means that relief may well be unavail­
able in time for the 1991 election.

8 The data are not required to be made available to the states 
until April 1, 1991. 13 U.S.C. § 141.

8 This process usually takes a minimum of 60 days, and can take 
up to twice that long. 42 U.S.C. § 1973c; 28 C.F.R. § 51.37.

7 In their brief to the court of appeals (at 57) petitioners noted 
that the 1981 plan did not go into effect until December 1981.



6

Thus, contrary to the court of appeals’ view, its ruling 
is not loyal to the “principles of equity [that] require a 
federal court to stay its hand when judicial relief makes 
no sense.” Pet. App. at 16. Instead its ruling invites 
precisely the kind of dislocation and confusion it pur­
ported to avoid, encouraging a post-reapportionment law­
suit that would not afford relief in advance of the sched­
uled balloting, absent a disruptive stay of the election.8

The district court’s order, by contrast, provided for 
orderly relief prior to the 1991 election while minimizing 
any dislocations occasioned by the results of the 1990 
census. It adopted a plan to “be in effect for the 1991 
election to the Board of Supervisors,” and directed that 
any redistricting necessitated by the census “be done to 
the minimum extent possible . . . subject to Court super­
vision.” Pet. App. at 19.9 Thus, the district court’s order, 
directed specifically to the 1991 election, appears to have 
afforded the most, realistic— and certainly the least dis­
ruptive-—prospect of installing a nondiscriminatory voting 
plan in Brunswick County before the 1991 elections. In 
short, the fact that the last scheduled election under the 
1981 plan had occurred did not render current, forward- 
looking judicial relief meaningless.10

8 The court of appeals ruled that petitioners could not complain of 
their inability to file suit between the 1991 reapportionment and 
the 1991 election because it was “their tardiness in challenging the 
1981 reapportionment that led to their predicament.” Pet. App. at 
17 n.10. That was plainly wrong: petitioners’ suit preceded the 1991 
election by over three years.

9 Perhaps because it provided prospective relief, the district court 
did not grant an interim election. Had its prospective relief truly 
been gratuitous, as the court of appeals held, Pet. App. at 16, the 
district court might have ordered more drastic immediate relief.

10 Indeed, even if population changes in Brunswick County are 
sufficient to require affirmative reapportionment for the 1990s, the 
current discriminatory plan may, absent judicial intervention, be 
carried forward to a great extent in the 1991 plan. Significant 
restructuring is likely to be both difficult and politically contentious,



7

III. THE DECISION BELOW IMPAIRS THE PROTEC­
TIONS OF §2 OF THE VOTING RIGHTS ACT

“ The Voting Rights Act was designed by Congress to 
banish the blight of racial discrimination in voting.” 
South Carolina v. Katzenbach, 883 U.S. 301, 308 (1966). 
As we have seen, however, the Fourth Circuit’s ruling 
could bar suits seeking to vindicate this vital goal for up 
to half of every decade. Further, suits filed in the latter 
part of the decade have been important tools for en­
forcement of § 2. Of the 18 reported § 2 redistricting 
cases 11 of which we are aware that were filed in the 
1980s, eight were filed in 1987 or later.11 12

and thus will not be readily embraced by elected officials without 
some impetus. Moreover, incumbent officials are unlikely to support 
any plan that radically alters their safe and familiar districts or 
that pits two incumbents against one another.

11 Redistricting cases, as we use the term here, challenge electoral 
districts that are subject to decennial reapportionment following 
the census. Challenges to an electoral unit whose boundaries coincide 
with those of a political subdivision such as a county, and hence do 
not vary with census results, would not be directly affected by the 
decision below.

12 Besides White V. Daniel, seven reported cases involved § 2 
redistricting challenges filed in 1987 or later: Garza v. County of 
Los Angeles, 918 F.2d 763 (9th Cir. 1990) (1988 filing) ; Armour 
V. Ohio, vacated for reh’g en banc, 895 F.2d 1078 (6th Cir. 1990) 
(1988 filing); Jeffers v. Clinton, 730 F. Supp. 196 (E .D . Ark. 1989) 
(three-judge panel) (1989 filing); Gunn V. Chickasaw County, 705 
F. Supp. 315 (N .D . Miss. 1989) (1987 filing challenging 1983 plan) ; 
McDaniels v. Mehfoud, 702 F. Supp. 588 (E.D . Va. 1988) (1988 
filing) ; Neal v. Coleburn, 689 F. Supp. 1426 (E .D . Va. 1988) (1987 
filing) ; Smith v. Clinton, 687 F. Supp. 1310 & 1361 (E .D . Ark.) 
(three-judge panel) (1988 filing), aff’d mem., 488 U.S. 988 (1988).

The redistricting cases that were, to our knowledge, filed earlier 
in the decade were: Bandemer v. Davis, 603 F. Supp. 1479 (S.D. Ind. 
1984), rev’d, 478 U.S. 109 (1 9 8 6 ); Gingles v. Edmisten, 590 
F. Supp. 345 (E.D .N .C . 1984) (three-judge panel), aff’d in part 
and rev’d in part sub nom. Thornburg v. Gingles, 478 U.S. 30 
(1 9 8 6 ); Ketchum V. Byrne, 740 F.2d. 1398 (7th Cir. 1 9 84 ); Knox 
V. Milwaukee County Bd. of Election Comm’rs, 607 F. Supp. 1112



8
There are both legal and practical factors that explain 

why many suits are filed toward the end of a decade. 
First, the necessity under § 2 of analyzing a pattern of 
elections over time may preclude filing suit until one or 
more elections have passed. Further, someone must rec­
ognize that a plan has. discriminatory impact before any 
studies will be undertaken; yet the injury of vote dilu­
tion may be subtle, and such recognition slow in coming.

The Fourth Circuit’s ruling does not recognize these 
realities, with two likely results. First, as happened here, 
meritorious suits will simply be thrown out of court. Al­
ternatively, plaintiffs may hasten into court with uncer­
tain empirical data to support their claims. In either 
event, the holding below will impair achievement of the 
goals of the Voting Rights Act.

IV. THE DECISION BELOW CANNOT BE JUSTIFIED 
ON GROUNDS OF LACHES

We have shown that acceptance of the court of appeals’ 
reasoning would create a per se bar to end-of-decade suits, 
make effective relief for petitioners before the 1991 elec­
tions virtually unattainable, and greatly impede the ef­
fectiveness of § 2 suits.. None of these drastic results is 
justified, let alone required, by the doctrine of laches.

A. The Elements of Laches Are Not Satisfied Here.
As we demonstrated above, the court’s finding that peti­

tioners unreasonably delayed their suit was made without 
consideration of the particular circumstances affecting the 
reasonableness of any delay. The court thus purported to 
do equity while ignoring the equities of the case.

(E .D . Wis. 1 9 85 ); Jordan v. Winter, 604 F. Supp. 807 (N .D . M iss.), 
aff’d mem. sub nom. Mississippi Republican Executive Comm. V. 
Brooks, 469 U.S. 1002 (1 9 8 4 ); Major v. Treen, 574 F. Supp. S25 
(E .D . La. 1983) (three-judge panel) ; Rybicki V. State Board of 
Elections, 574 F. Supp. 1147 (N .D . 111. 1983) (three-judge panel); 
Seastrunk V. Burns, 772 F.2d 143 (5th Cir. 198 5 ); Terrazas v. 
Clements, 581 F. Supp. 1329 (N .D . Tex. 1984) ; Washington v. 
Tensas Parish Sch. Bd., 819 F.2d 609 (5th Cir. 1987).



9

Nor can the prejudice identified by the court of appeals 
support laches. It arises, not from any delay by petition­
ers, but rather from respondents’ own wrongdoing. See 
Jeffers v. Clinton, 730 F. Supp. 196, 202-03 (E.D. Ark. 
1989) (three-judge panel) (“ the expense, trouble, and 
disruption of compliance with a judicial redistricting 
decree “ are not a consequence of plaintiffs’ delay,” be­
cause they “would have occurred whenever the suit was 
filed” ) .

The court of appeals first found that “ two reapportion­
ments within a short period of two years”  would create 
instability in the electoral system and impose financial 
burdens on respondents. Pet. App. at 15. But these bur­
dens are no greater than the burdens of two reapportion­
ments at any two points in the decade.13 If the 1990 cen­
sus makes reapportionment necessary, the cost would be 
the same regardless of whether relief in this suit had been 
granted m 1984 or 1989. In any event, the district court’s 
order would have minimized any such dislocations by lim­
iting changes based on the 1990 census; there was no 
realistic prospect of two complete reapportionments. See 
supra p. 6.

The court of appeals also found prejudice in the neces­
sary reliance on the 1980 census data, which it feared 
might be outdated. Pet. App. at 16. But relief granted 
in a suit brought in 1982 would also have relied on 1980 
data, and would have remained in effect throughout the 
decade; presumably, such a suit would not have been 
barred. Since an apportionment scheme in effect in 1990, 
whether as a result of a 1982 suit or a 1988 suit, would 
be based on 1980 data, the need to rely on 1980 data

13 Indeed, i f  there is an unlawful reapportionment in 1991 a 
successful § 2  ̂suit filed soon thereafter would result in precisely 
the cost identified by the court of appeals: two reapportionments 
within two years, causing the same “instability and dislocation” and 

financial and logistical burdens,” Pet. App. at 15, faced by the 
County under the district court’s order,



10

cannot constitute prejudice to the respondents. This is 
another example of the court of appeals’ confusion of the 
costs of remedying a Voting Rights Act violation with the 
costs of delay. In sum, the court of appeals identified no 
prejudice flowing from delay that would justify applica­
tion of laches.

B. The Fourth Circuit Failed To Give Effect to the 
“Gravitational Pull” of the Voting Rights Act on 
the Federal Common Law Doctrine of Laches.

Judicial application of a common law doctrine— especi­
ally an equitable doctrine such as laches—in a suit involv­
ing a federal statute must accommodate the congressional 
will, which reflects and defines the public welfare. See 
Deitrick v. Greaney, 309 U.S. 190, 197-199 (1940) (mod­
ifying “strict and technical” terms of equitable doctrine 
of estoppel in light of “ purposes and policy”  of federal 
statute) ; Morton Salt Co. v. Suppiger Co., 314 U.S'. 488, 
493 (1942) (“ where maintenance of the suit concerns the 
public interest as well as the private interests of suitors,” 
there are “ additional considerations” in determining 
whether equity will prevent the suit) ; G. Calabresi, A. 
Common Law for the Age of Statutes 85-86 & n.15 (1982) 
(statutes may, like judicial decisions, have a “gravita­
tional pull” that influences development of the common 
law).

The Voting Rights Act provides express congressional 
recognition of the fundamental nature of the right to 
vote— a right that is “ fundamental ‘because preservative 
of all rights.’ ”  Harman v. Forssenius, 380 U.S. 528, 537 
(1965) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 
(1886)). Accordingly, numerous courts have recognized 
that the public interest in protecting voting rights must 
weigh heavily in any application of laches. The court in 
Jeffers v. Clinton, for instance, in rejecting a laches de­
fense to a § 2 action, held that “ [t]o the extent that elec­
toral confusion and disruption exceed what they would



11

have been if the case had been filed earlier, we think that 
fairness and equal opportunity in voting are worth it.”  
730 F. Supp. at 203 (emphasis added) ; see also Hersh- 
copf v. Lomenzo, 350 F. Supp. 156, 159 (S.D.N.Y. 1972) 
(declining to apply laches in Voting Rights Act case be­
cause “ the right to vote is too fundamental in the demo­
cratic process to be denied upon any such plea” ) ; Bishop 
v. Lomenzo, 350 F. Supp. 576, 581 (E.D.N.Y. 1972) 
(“ the public interest in enforcement of such an important 
federal law [as the Voting Rights Act] is paramount and 
should not be defeated because of laches on the part of the 
named plaintiffs” ) ; Knox v. Milwaukee County Bd. of 
Election Comm’rs, 607 F. Supp. 1112, 1118-19 (E.D. Wis. 
1985) (delay does not “warrant wholesale dismissal of the 
important issues” raised by suit; prejudice of redistrict­
ing is “ a necessary consequence of ensuring that the vot­
ing rights of all . . . residents are upheld in a manner 
consistent with the federal constitution and the statutes 
enacted to enforce it” ) .

In this case as well, Congress’ goal of safeguarding 
and enforcing the fundamental nature of the right to 
vote should have prevented application of laches. The 
decision below wrongly ignored the statutory purpose of 
“ shift [ing] the! advantage of time and inertia from the 
perpetrators of the evil to its victims,” South Carolina v. 
Katzenbach, 383 U.S. at 328, and established a contrary 
rule, purportedly required by the common law doctrine 
of laches, that instead protects discriminatory structures 
from review.14 The ruling flouts the policies of the Vot­
ing Rights Act and warrants review here.

14 By operating essentially as a matter of law, the Fourth Cir­
cuit’s end-of-decade bar functions more in the fashion of a statute 
of limitations than as a flexible doctrine of equity. Congress was 
itself capable of inserting such a limitations period into the Voting 
Rights Act, but did not.



12

CONCLUSION
The petition for a writ of certiorari should be granted.

Respectfully submitted,

Stephen J. Pollak 
(Counsel of Record)

J. T heodore Gentry 
Shea & Gardner 
1800 Massachusetts Avenue, N .W . 
Washington, D.C. 20036 
(202) 828-2000

Robert F. Mullen 
David S. Tatel 

Co-Chairmen 
Norman Redlich 

Trustee
Barbara R. A rnwine 
Thomas J. Henderson 
Frank R. Parker 
Brenda Wright 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N .W . 
Washington, D.C. 20005 
(202) 371-1212

January 7 ,1991  Counsel for Amicus Curiae