Legal Research on White and Nevet II and Racially Polarized Voting; Correspondence from Winner to Chambers

    From White to Nevett II - Court of Appeals Cases
wniEtr Talk About Racially Polarized Voting

1. It is notable that there is not a word about polarized

voting in Zglmgr v. McKeithen. The first case that mentions

racially polarized voting is wallqqe v. Eqqqe, 5I5 F,.2d 6L9,622
(5th Cir. 1975). It does not discuss how racially polarized

voting was determined but says, "they apparently voted right
down the line for racial solidarity, with whites voting for
whites and bracks voting for blacks." The lower court (Finding

#130) found "the record documents a history of bloc voting along

racial If.nes" such that "virtually aII" whites vote for whites

and blacks vote for blacks. 377 F.Supp.192,1197 (L974).

There is no discussion of how it was proved. It was in the

context of only one black having ever won an election (which the

court found was a "mere stroke of luck" ). There was no

discussion of the importance of racially polarized voting, but

it was used to explain why the white candidates won.

2. In Perry y. City q!_Opelquqas, 515 F.2d 639 (5th Cir.
1975), a decision mostly about the appropriate remedy, the court
discusses racially polarized voting in the course of discussing

unresponsiveness: "IT]he aII at large election plan has combined

with raciarly polarized voting patterns to produce alr-white
Boards of Aldermen which have been able to ignore the interests
of their black constituents.,' Id. at 640. That is, since

whites had only a slight edge in voter registration, the

racially polarized voting was used to explain why white

candidates could ignore brack concerns. There had never been



blacks elected. Bases finding of dilution on history of racial
discrimination, anti-singre shot and majority vote reguirements,
and racially porarized voting patterns combined with a white
voting majority. There is no finding of intent and no

discussion of how raciarry polarized voting was proved. The

district court findings are unreported. (375 F.Supp. 1l is
District Court remedy order).

3. fn Nevett I, 533 F.2d l3GI (5th Cir. Lg76), the Court
of Appeals vacates the District court's finding of dirution.
Blacks were 50E of the registered voters and had won 6 out of 13

seats r-h- 1968. They rost arr in L972 due to the fairure of
bracks to turn out combined with "substantiar broc voting.,, The

appendix does not say how this hras determined. The Court of
Appeals suggested the District court thought blacks had to be

guaranteed electoral- success and remanded for reconsideration in
accordance with Zimmer

4. fn McGilI v. Gadsden Qq. Commissioners, 535 F.2d 277

(5th cir. L976), the court affirms the District court's
determination of no dilution since blacks were over L/2 the
democratic registered voters. The court of Appeals mentions

that the District court found racialry polarized voting in
context in which blacks had never been elected, but the Court of
Appears does not discuss the effect of this or how racialry
polarized voting was determined. ( f do not believe the lower
court decision is reported. ) ts. 540 F.2d 10g4, r0B5l

5. In Hendrix v. Joseph, 559 F.2d L265 (5th Cir. tg77),
the court vacated the District court,s order in favor of

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praintiffs and remanded for more complete findings. rn passing

the court notes that the great disparity in registrati_on, the
racially polarized voting and the fact that no blacks have been

erected support the finding that the system suffers from

ringering effects of previous raciar discrimination. rd. at
L270. There is no discussion of the extent or method of
determining raciar polarized voting and the District court
decision is not published.

6. In Kirksey v. Board of Supervisors, 554 F.2d I39 (5th

Cir. L977 ) (en banc), cert denied 434 U.S. 969 (L977), the court
reversff a District court finding of no dirution. The court
hords that a redistricting plan is constitutionarly
inpermissible if it perpetuates past purposeful denial of access

to the poriticar process. rd. at L42, 146-9. rn its rist of
facts which lead to its conclusion of perpetuation of rack of
access and "ress opportunity" are that no blacks had been

elected and "alreged bloc voting. " The District court , 402

F.supp at 672 n.4, bases its concrusion of raciarry porarized
voting on high correration coefficients (+.979 and +.957).

7. In Earnell v. Rapides parish School Board, 563 F.2d IBO

(5th Cir. L977), the court considers ,,the probability of racial
broc voting" in assessing the zimmer factors and affirms the
lower court finding of dilution. The court states that in the
context of racially polarized voting here bracks are

consistently defeated in the multimember districts. rd. at 1g4.

The lower court had used a Pearson correlation and retrogression
analysis to conclude "there was a 9Bt probabirity of bloc voting

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arong raciar rines" arthough some whites did vote for brack

candidates. I assume that the 989 hras the correlation
coefficient or the statistical probability, not the percent of
whites who voted for the white candidate, but that is not clear
from the decision.

8- The Fifth circuit's first meaningfur discussion of
racially polarized voting is in Nevett v. Sides, 57L F.2d ZOg

(sth cir. 1978) (Nevett rr) in which the court holds that
plaintiffs must prove discriminatory intent to prevail and that
the purpose of examining the Zimmer factors is to determine

whetherlhey raise a inference of discriminatory intent. rd. at
2L7. ( "when the more bratent obstacres to brack access are

struck down, such an at-Iarge plan may operate to devalue black
participation so as to allow representatives to ignore black

needs. Where the plan is maintained with the purpose of
excluding minority input, the necessary intent is
established- - . " Id. at 222. )

ft is in the context of determining if the method is
being maintained for the purpose of alrowing the erected

officiars to be unresponsive that court discusses racially
polarized voting. Noting that polarized voting allows

representatives to ignore minority interests with impunity the

Court states, "When bloc voting has been demonstrated, a showing

under Zimmer that the governing body is unresponsive to minority
needs is strong corrborative of an intentional exploitation of
the electorates bias. "

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As a footnote, the court uses the often cited ranguage,

"Ir]n the absence of polarized voting, black canditlates could

not be denied office because they were b1ack, and a case of
unconstitutional dilution could not be made.,'

Note 18 discusses how bloc voting can be indicated. It
states it can be indicated by showing the Zimmer factors ( ? ) , by

statistical analysis as in Bolden v. Mobile, 423 F.Supp. 384,

388-89, or by the "consistent lack of success of qualified black

candidates. " The method used in Bolden was regression used to
establish correlation. fn Bolden the Court finds, "There is no

reasonaEle expectation that a black candidate could be elected

in a citywide election race because of race polarization. " Id.
at 389.

Thus racially polarized voting was not mentioned at alI
in Zimmer, it was noted in some but not all cases from wallace

v. House through Ki::ksey, although either without any statement

of importance or as an explanation of why blacks vrere not

getting elected. There was no discussion in any of these cases

about the extent of racially polarized voting necessary for it
to be significant, and no statistic used except correlation
coefficient. The first discussion vras in Nevett If which

discussed racially polarized voting in its discussion of why the

Zimmer factors raise an inference of intentionaly maintenance of

a system which allows white politicians to be unresponsive.

That is, if there were not enough polarized voting to assure

consistent black defeat, whites would not be able to be totally

tr
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unresponsive. This reasoning is not appricable to 52 which

focuses on neither purpose or unresponsiveness.

Of the cases cited by parker from other circuits, three
do not mention polarized voting. In Dove v. Moore, 539 F.2d

1152 (8th Cir. L976), the court uses an extreme case analysis in
two elections and concludes that "blacks and whites alike have

rejected" race as the overriding criterimonin voting for
candidates. (A black candidate got 44.5t of white vote in white
ward, a white card got 44* of black vote in black pct). The

court concludes that blacks have fuII and egual access to the

city's -political process emphasizing the need of white

candidates to campaign in black areas to get elected.

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a
FERGUSON.

o
S, P.A. . *c:

/^!- a

JAMES E. FERGUSON. II

MELVIN L WATT

JONATHAN WALLAS

KARL ADKINS

YVONNE MIMS EVANS

JOHN W GRESHAM

LESLIE J. WINN€R

JOHN T, NOCKLEBY

GERALOINE SUMTER

FRANK E- EMORY. JR.

THOMAS M. STERN

WATI WALLAS & ADKIN
ATTORNEYS AT LAW

SUITE 730 EAST INDEPENDENCE PLAZA

95 I SOUTH INOEPENOENCE BOULEVARD

CHARLOTTE, NORTH CAROLINA 24202
TELEPHONE (704) 375.845r

October 3I, 1985

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Mr. JuIius Chambers
NAACP Legal Defense and Education

Fund, fnc.
16th Floor
99 Hudson Street
New Yorkr New York I00I3

Dear Julius:

Enclosed is a history of the use of racially
vote dilution cases from Whrte v. Reqister to
I prepared it in preparinqief

INpolarized voting
Nevett v. Sides.

thought it might be useful to you in preparing
argument.

in Gingles. I
for the oral

If there is anything else that f can help you with to get ready,
Iet me know. Otherwise, I will See you on November L2, 1985.

Sincerely,

LesIi"e

LJW: acw
Enclosure
cc: Ms. Lani eoini"r r,/

Winner