Collins v. City of Norfolk Court Opinion

    I ., 
-

, -'.c
RECEIVEDJUL2ltffis

.S .,ilITED STATES 

'OURT 

OF APPFILS

qUr- FoRIHEFouBIHclffiJtt

No. 84-1819

Eerbert I't. Collins;
Dr. E. lllarks S.'Richard;
Barbara C. Parham.
Willian E Swindell, Jr.:
Dr. ililton A. Reid
Norfolk Branch. National Association
for the Advancenent of Colored People;
George Banks and

Appellants,

versus

City of Norfolk, Virginia, a
municipal corporation- Vincent J.
Thomas Mayor : Dr . ltlason C. Andrews:
Joseph A. Leafe: Rev. Joseph N. Green,
Jr.; Claude J, Staylor, Jr.; Robert E.
Sunmers: and ttlrs, Elizabeth U. Eowell,
members of the Norfolk City Council;
City of Nbrfolk Electoral Board;
Paul D. Fraim, Martha E. Boone, and
Paul !t. tipkin,. nembers of the Cit,y
of Norfolk ElectoraL Board,

Appe1l,ees.

Appeal from the United States District Court for the Eastern
District of Virginia, Et Norfolk. J. Calvitt Clarke, Jr., Dis-
trict Judge. (C/A 83-526-N).

Argued: April 1. 1985 Decided r July 22, 1985

Before ITURNAGEAN and CHAPIiAN, Circuit Judges,. and BUTZNER, Sqnior
Circuit Judge

Brank R. Parker (WiIliam L. Robinson; Patricia !,1. Eanrahan on
brief) for Appellants; R. Harvey Chappe11, Jr. (Paul W. Jacobs,



fI Christian Barton, EPPS, Brent & Chappell; Philip R'
irapani; Earold P. Juren; f,yitia C. laylor ; Of f ice of the City
At.torney on brief ) for Appellees.



UURNAGEAN, Circuit Judge:

llaintenance by the city of Norfolk, virginia, of an at-

large election proce,ilure covering members of the !tat Council has

Ied to a suit by the National Associat,ion .for the Advancement of

Colored people and seven black Norfolk voters contending that

Section 2 of the Voting Rights Act, 42 U.S.C. S 19731 had been

violated. The sult also clained infringenent of the Fourteenth

and Fifteenth Amendnents through adoption in 1918 of the at,-large

(a) No voting qualification or prerequigi!e- to
voting or standaid, Practice, or procedure shal1 be
tunposEd or aPPIied by any State or political subdl-
viiion in a- manner which results in a denial or
abridgenent, of the ffi citizen of the
united stat,es to vote on account of race or co10r,
or in contravention of the guarantees set forth in
Section 1973b(f)(2) as provided in subsection (b) of
thd.s section.

(b) A violation of subsection (a) is established
Lf , based on the toFalitv of circu]usta.nces, it is
show@it,ica1 Processes leading t,o nomi-
nation or election in the State or political subdi-
vision are not equally oPen to participation by
members of a class of citizens protected by subsec-
tion ( a) of this sect,ion in that it,s members have
less opporEunity t,han other nembers of the elector-
ate to participate in t,he political Process and to
elect r-present,atives of their choice. lhe extent
to whictr members of a protected class have been
elected to office in the SLate or political subdivi-
sion is one circumstance which may be considered:
Provided, That nothing in this section establishes a
Egffi have members oE a protected class elected
in numbers equal to their ProPortion in the popula-
tion.

(Emphasis added).



election as a means to promoEe racially discriminatorl :bjec-

tives.
Thereliefsoughtwasreplacementwithaplanestab-

lishing seven single member districts, each with -one representa-

tiveint,heCit,yCouncil,togetherwithadeclarationofthe
illegality of and an injunction prohi'.'cing the at-large system

duetoanunlawfuldilutionofblackvotingstrength.
A bench t,rial last,ing t,en days and produclng over 2100

Pagesoftranscript,andmorethan5g0exhibitsresultedina
judgruent in favor of the city of Norfolk and its officials joined

asdefendants.Theissuesraised,thoughsportingvarious
guises,.wereessentiallyfactualand,int,heend,amountedtothe

assertion that, the district judge, in his findings, was clearly

erroneous.,l{anifestly,aheavyburdenhasbeenassumedonappeal
bythepartieswhot,ereunsuccessfulinthedistrictCourt.
Anderson v. city of Bessemer, North carolina' 53 O'S'L'W' 4314

( u. s. llarch Ig , lgg5 ) . 2 Accordin gLY , we must examine t'he €actual

record nin light of t,he aPProPriaEely deferential standard" af-

forded the dist,rict courtrs findings' Id' at 4318'

If the district court's.account of the evidence is

ii"""iur"-i;-iishi-;i rhe record viewed in its en-

tirety, the couri of appeals may not' reverse it even

though convi-n-cJ that--had it been sitting as the.
Er ier oE f aft-,--it- wou:'a have weighed t'he evidence

differently.-Wheretherearetwopermissibleviews
of the eviaence, 

- -tt'" 
f actf inder's choice between

them cannot be clearlY erroneous'

53 U.S.L.!{. at 4317'



Eistorically, in 1918, ProYision was made for a five-

member Cit,y Council, each to be elect,ed at-large ' Each was to

have a term of four years, with terms to be staggered, presumably

to minimize t,he possible i11-effects of a 100t turnover, a1I at

the same time. Between 1949 and 1952, th? number of councilmen

rose to seven. In 1958 a nine-member Advisory Study Commission,

one of whose members was black, was created by the city council

to study and evaluate the 1918 Charter. IEs rePort and recom:men-

dations appeared in 1971. ft unaninously reconmended retention

of staggered terms and at-Iarge elections, agreeing that ocoun-

cilmen should be elected by and be responsive to the entire com-

uunity rather than a portlon of it.' The Commission also ex-

pressed a wish to avoid parochialism, which is another way of

saying the. same thing.

since 1968, one nember of the city council has been

black, Joseph A. Jordan, Jt. from 1968 to L977, and Joseph Green

from 1,977 to the present. Jordan was vice mayor during his terms

beginning in Lg72 and 1976. Green has been vice Eayor since

1982. In 1984, John Foster, another b1ack, was elected io the

City Council. 3

3 A poinE, Pressed by the aPpellants vras the asserted "*r"-E,ence of , conspiracy t,o orchestrate Fosterrs election
through the decision, after the institut,ion of Ehis suit, of
a white candidate to abandon efEorts to obtain reelection.

( Continued )



PIuralit'Y voting governs in Norfolk. Single-sh vot-

ing is not ProhibiEed' i. e. , casting votes Eor a f ull slat'e

notreguired.4TheNorfolkrulesimposellvnumberedplaceor

IS

ffi o,i,iLii"JJ?,,U?,:l:::'?3f f !',iii'J"'.tu"*"".3:"::
the case, if ";;;;;; ' 

- nowe;;; ' it was ;bilterated bv the

dist,rict judsef:";ini''ng"' ;ii;i' "1 'e- noc clearlv €Eroo€ousr

r,har r,he whitl 
-".nldit.t1,'=";ah, awa1. r." for personal rea-

sons and rhat= ii"-."pqo.l 
"f;' 

"i""iioi-oi- 
a 

-second black

anredared rne' ri'ii";-;? trre'iiia. - rhe aistricc judge went

on Eo f ind t,hat'i"'1gi'rr"i". i"-no Jvidence ti-tl-lt'" ei'ection of

Rev. Foster ?!"'orctrestrltli ;i-ii''t".n:.:t:.;r'"ttcjals or

connunity r"tiJi= i"-in attempt to noot

The dissent' contends thaE iE' was g*tIcHtrffffi ::[
:X "Sl 

ti ";":? 1i: iiiqff ' ff ",' 
i 3:'#'" ";;:;".'.i;. i o n t e n -

tion, the u'JJ""I- nigttrlgr'J t n"*:9-:F"I--Jtli"le ' 
in which

thet'layorofuJtolkwas.go;t"aassayirrg'"Aftert'heelec-
tion,thei"=.o-"1-iu..""*-ilpi!"!itiii".-,ouybecomeamoot
ooinE." whether that puniiir,"a statemenf which' oo its

tac", amount"'ii- no--'oo'" ir't" the "*pt"tiion 
oE an' opinion

by no means n""]"-.".iiiy in;;"or"c", consl-i-tuiea a 9up!1e and

improper,""'Ii=iii""r' pi";;';-iiii"rv ";-;;; credibilitv or

rhe tlayor , s i"tJf I. - gf- ..f". 
- 
"l"tlt"-n! "" well as a close

Eactual "*"tii!iiot'- 
ot tn"'?""nli"i-'t"iititr mood in Norfork

ar rhe r,ine # d.; Cir-v .oiilii-"ri"li""' tnus'. 
'e 

in E'he

oanel majoricy are trardprel;;-4" up""t' 
-tt'" district- judgers

Lonclusion ti'"c"io"t"ii = erection 1?: not promoted f or an

inprope, po'pTJt"- t"t ana=t"==-oi--o' iie' of e""s"'o"t' supra'

at 4317 '

Althoughstaggeredtermscanhavetheeffectoffrustrat-
ing singre-shof 

-vot_i-ng ]''li"--q,r.-tr i"i".o"it f ound that the

ciry of ,o".i"ir aaaulla 
-'""riici-ent- 

"olattt"" 
a. tr ial to

prove rrr"i-1r," s_taggere? e.ii" ; the- clty council members

did nor pio.oc" "treaa .iJ neaa "ontt"i-= 
L"L'"ttn [Blacks) and

whites ""i-iaia 
notl {;ti;;-til:I:i-of 

Ehe oPportunit'v t'o

elect a "",,aidate 
o-v .si.ngre-s|rot 

vot,ing.., Citv of Rome v.

'"rE.=:!?"J"'"#1ffi !;.1?il-i:l+i:u';"":':Tl:::ffi 
:;?::;

eEEectop*Norfolr'".'it"t,'!lJ;:ii-Ir""iion"'itwouldbe
Iikelythatt!e-efectii-nJfor-tl':iewestnumberofseats
would nor, yield any iiL'Jr 

-canaiaatli ' Yet the evidence

(Continued) 
.



residency requirenents.5 Since the passage oE the Voting Rights

Act in 1955, the black voter registration rate and turnout rate'

based on a percentage oE the black voting age population, have

increased to the point that today they exceed those of Norfolkrs

white populat,ion. Whit,e registration is 51 . 2t of the white vot.

ing age population as against 52'9t for the black voting age

lGolila"a that, in those erections in rhich t'he f ewest

number of "";;:-i.;-, 
tt."".--were j!"1, _l:. ^:1"-:1t"nj.,.,1lilXi'nJ'.i .i;:y= ffi'victorious. rn lieht of . such evi-

;;;;;, 
--irr" ai"iii"t- courr,s f indings with respect to stas-

gered terms cannot be deemed clearly erroneous'

lhere is disagreement over whet,her residency requirements
minimize the voting strength qq l-":lil minor ities ' - See

n.o..=-". toaee. 45ti U.S. ei: , 627 ( I98.2.) (Without residency
requirement ]ii 

-t-""id"nt,s - could reside in "'lily-whitel
neighborhoods").-- CoPPere Perklns v' Citv of West Helena'
675 F. 2d 2Or, 212 ( 8t,h c 1

(1982) (ward iesidency'"q-oit"'elt'- j1ggGfrii'a' effectively
pr oh ib i red s ing 1e-sho r vo t i;; - ;e -l eilffi-ceTdT-trre Po ss ib i 1 -
iry rhar tcit;i;i eieccion 

-"dh"r" [was] being mainEained for
a discr lminat'orl poipo""' I . Th" lesson to be der ived is
t,hat any partico-f ai a-spect'of the voting Process need not be

absolutely good or bad. Rather the aPPlication in the Par-
ticular case should control, i"a we s-hbuld eschew generali-
ties. .Deterri"-ing ,h"th"t residency requirements., or t'he

rack t,hereof , 
---niia"i Eht position- of -racial minorities

within the electoral pro."""'requires a careful factual and

staristical """fy"1i 
-oe the sfecific political communit'y

under scrutinY.

In t,he instant case , t,he distr ict court , af ter cons ider-
ing all of the evidence, concluded that t'he lack of a ward

residency r"q,;ir=*-""i did not enhance the opportunity for
discri.minatio-n 

-in elections for Norfolk Cit'y Council mem-

bers. That conclusion was amply sup-ported by tle record'
For example, 

- the record demorisirated t'hat the lack of a

residency r"grir"*""i did not water down the ability of
black voter=-'r,r"""=sf ully to utilize single-shot voting nor

diditresultin'1i1y-white"rePresentat'ion.



populaEion. Those Eigures developed by regressLon

comparable to 53.1t white and 55'3t black on the

precinct analysis. BIack voter turnorrt ex-eeded

turnout in the 1984 election' The black turnout-

higher .6

Norfolk's efforts to increaoc roter registrat'ion have

been exemplary. In the 1984 electioo, six staff positions were

equallydiviiled,threeandthreeint,hemainregistrat,ionof-
fice. Of the 371 election officers ' L02 were black'

TheConcernedcitizensofNorfolk,ablackpolit,ical

organization, endorses both black and white candidates and wields

considerable clout, From $72 through 1984, it had endorsed

twenty-one candidates for the city council. ?hirteen (52t) have

beenelected,ofwhomfivewereblackandeightwhite'
ThemunicipalworkEorcewas35.I6tblackinL9T3,

41.3lt black in 1.983. Representation on major boards and commis-

sions appointed by the cit,y council has been reasonably good'

The parties stipulated Ehat Prograrns and services oE the flre

department,thelibrarydepartment,andt,heDe.oartmentofEuman
Resources did not discriminate against blacks and have been re-

sponsive to their needs'

anal7' - are

homogeneous

white voter

rate was I1t

Thosestatist,icscamefromstudiesintroducedinevidence
by t,he appeliint". They did not cover the predominani,ly

whit,e resiaents- 
-of nao.i bases and ships. Had Ehey been

lncluded,thestat,istics,oorahavebeenevenmorestriking
as to black Predominance '



There are ot,her staE,isEics which generally show im-

provement in the status and circumstances of blacks in Norfolk'

The median income dispar it'y ( $17 ' 
548 for whites ' $10 '250 for

blacks), an endemic probLem for the entire united stat'es, has not

been demonsBrat,ed to be related in any way to the procedures for

election t,o the Norfolk City Council'

In amending in L982 the Voting Rights Act, congress

called for consideration, in probing the totality of the circum-

stances, of the folloring f,actors:

1. the extent of any history of official discrini-
n"iion in the state or political subdivision that
touched the right, of thq nembers of t,he minority
group to registtr, Eo vote, or otherwise to partici-
pate in Ehe denocratlc Processi

2. the extent to which voting in the electlons of
the state or political subdivision is racially Po-
larizedi,

3. the extent t,o which t'he state or political
subdivision has used unusually large election dis-
tricts, majority vote requirements, anti-sin91e -shotprovisionsl or bther voting practi-ces _gr procedures
t,fr"t may enhance the opport,unity for discrimination
against the .mi'noritY grouP ,

4. if there is a candidate slating Process,
whether the members of the minority grouP have been
denied access to that Process i

5. the extent to which members of the minority
groug in the state or polit,ical subdivision bear the
etfelts of discrimination in such areas as educa-
tion, employuent and health, which hinoer t'heir.
ability tb participate effectively in the golitical
Process;

5. whether poliEical campaigns have been cha-
racterized by overt or subtle racial appeals;



7. the extent to which members oE t,he minority
grouPhavebeenelectedtopublicofficeinEhe
jurisdiction;

[8.]whether-t,herei.sasignificantlackofre-
sponsiv.n.ss on the par-t of elec.ted off icials to the
pirticuiarized needs of the members of the rninority
grouP.

tg.lwhetherthepolicyu^dl.lyingthe.stateorpoiiti".i subdivisio-n' s use '.f. such voting guali-
?ication, prerequisite t,o vocing t Qt standard, Prac-
tice or Procedure is tenuous'

s. Rep. No. 4!7, 97th Cong. r 2d sess . 2, reprinEed in 1982 U'S'

code cong. & Ad. News L77, 206-207. Those factors, while gener-

ally the nost probative, are not exclusive. Congress, t'hrough

the Senate Cornmittee on th- Judiciary, has made clear that at-

large elections need not be eliminated. Id. P. 211. The test

established by the 1982 anendments merely codified Pre-existing

1aw. See; -e-:g._, white v. Regester , 412 U. S. 755 11973 ) ; Zimmer

v. I'lcKeithen , 485 F.2d L291 (5th Cir. 1973) (en be!e), aff'd sub

nom. East Carroll Parish SchooI Board v. l.larshaIl, 424 U.S. 536

(1e75).

Looking at the facts, Els established by the record as a

whole, and rneasuring the question presented by nthe totality of

the circumstancesr'we simply are not left rith a firm conviction

Ehat an error has been committed by the district judge. see

United St,ates v. Unitea States Cvps , 333 U'S' 364,'395

(f94S). Perhaps, in such detailed and lengthy findings as the

district judge made here it is inevitable that a phrase sprinkled

10



here or t,here might occasion regretrT but the question is not

whether we could have done better--a natter necessarily of Some

uncertainty--but whether t,he district, judge to whom the resolu-

tion of factual disputes is finally allocated was clearly errone-

ous. we cannot say that, he was. Accordingly, w6 affirm

AFFIRI.{ED.

For examPle, the dissent contends that the district
court, evide-nced by his remarks t'hroughout tria1, "equated
;piop|ttional polit-ica} representaEion' with the institution
o? a ward systirn in which iorne wards will have a majority of
black Voters.r Eowever, the district judge's remarks must
be read in t,he context of a rather long and diEf icult tr ial
in which he was attempting to comPly with t,he proviso. in s 2

oi the Vo ting nights- Acd ( 'prov ided , That not,hing in th is
section estab-Iishls a right E-h'ave nenbers oE a protected
clasS elected in numbers equal t,o their ProPortion in the
popofation."). Thus, the diltrict court, in contrast to the
iiisent's assertion, did not conclude, ES a matter of 1aw,
that ward systems would be violations of that proviso but
rather mereiy atterupted t,o grapple with the interplay be-
Eween the appellantJ' desired relieE and a statutory prohi-
bition.

11



BUTZNER, Senior Circuit Judge, dissenting:

Theprincipalissuestheappellantsraiseaddresserrors
of law to which the clearly erroneous rule ooes not apPly'

purrman standard v. Swint, 45G u.s. 273, 287 (1982). Because

these assignments of error are neritorious, I would vacate the

judgment of the district court and re-.,.d the case for con-

sideration of the evidence in accordance with correct legal

standards.

The appellants cornplain that the district judge denied

them a fair trial because of his expressed antipathy to the

conversion of an at-Large electoral system to a ward system in

which some wards would have a predominately black population'

InsupPortoftheircomplaint,theappellantsemphasizethe
folloviing comments of the district court during the proceed-

ings:

Well, arenr
system which
Icouncil] , that

***

t you when Yourre asking for a ward
wiif guarintee more blacks on
is a qu-ota sYstem, isn' t i t?

That.stheproblemlhavephilosophicallyandl
rnay be Premature in raising it'

**i

real question is whether segregated
be th6 rule of the daY or integratedWeI1, the

voting ought to
voting.

t*i

If you had a l0O Percent black ward' there
won't be any white candidates there for blacks Eo

vote for, would there?

L2



See, what concerns me is you are espousing seg-
regated voting, and Ehat realIy concerns me as a
matter of principle.

We're trying to integrate housing, we're try-
ing to integrate schools, we're trying to integrate
jobs, we're trying to integrate society so it will
work together, and your position is, as a very basic
thing, which goes Eo . horr we live and how we get
along together, and that is the right of franchise,
you want to segregate. And that does concern -me.

* * *.

So your design, I take it, then is to see that
the blacks get a certain quota of people on city
council?

***

When you segregate theru aren't you creating
more problems than you're doing good?

***

They have voted for
black and white, and
grated society than
stockade and say this

successful candidates, both
isnt t that better in an inte-
putting somebody in a color
is the way yourre going to do?

*

How is the establishment of a ward system going to
correct Iracial appeals] ? Ilow are you going to
bring about a millenium of Peace on earth and good
will toward men by segregating the white vote and
the black vote by establishing a ward system?

The court's characterization of the relief the appellants are

seeking pervaded its perception of the entire proceedings.

Thus, in the introduction to its opinion, the court wrote in

discussing the "Applicable Law":

Two competing legal principles are aPplicable
in this case. The first is that political systems
or practices which deny minority voters access to
the political system have been repeatedly struck
down by the courts. . The second is that courts
have consistently rejected the view that any grouP
has a constitutional right to Proportional politi-
ca1 representation. These competing legal

13



orinciPles are di'rectlY involved in this case'

i"iiition" omitted)

The appellees respond that the district court was not

biasedanditdidnotdenytheappellantsafairtrial.onthe
contrary, they soYr the concerns raised by the court

were solely in the context of - (1) whether ' a ward

svstem ii-iro'rolk -"-::i;;-1; 
o!a"t--'to estabrish ap-

pelrantsi- foars, ,"q''it-J-a- guo:1-?I=t"* contrary to

the"*p.""iprov.isio-ns-oftlieVot-i1's-iistrtsAct,"nd
(2) *n"ril, 'waras i., irJrto-it ."t6r' "" 

-" practical

matter, end cros"-oo"'--iiti"f votinj P'"tt:ll: and

coarition politics rti"n-ir""u*ubty otherwise are

to be encouraged'

IdonotsubscribetoEheappellants'complaintoEbias.
Thecourttserrorwasnotduetoprejudice.Theerrorwasthe
courtr s incorrect interpretation of the proviso found in sec-

tion 2 of the Voting Rights Act' which states: oProvided'

thatnothinginthissectionestablishesarighttohave
nembersofaprotectedclasselectedinnumbersequaltotheir
proPortion in the population'n 42 U'S'C' S I973' Both the

appelleesandthedistrictcourtincorrectlyhaveequated
'pro;rcrtionalpoliticalrePresentationnwiththeinstitution
ofawardsysteminwhichsomewardswillhaveamajorieyof
black voters'

Giventhecourt'smispercePtionoftheproviso,judgment

againsttheappellantswasforeordained.Itiswrongtoreme-
dyanillegalat-largeSystembysubstitutingaProPortional
rePresentationsystem;butitisnotwrongtosubstitute'a
fairlydrawnwardSystemeventhoughsomewardswillhavea
majorit,yofblackvoters'OnmorethanoneoccasiontheSu-

PremeCourthasapprovedconversionofdiscriminatoryat.Iarge
systemtoawardsystem.Thewardsystemmustbefairly

I4



4rawn, but if this condition is met, it is no impediment that

some wards have predominately black residents and others have

predominately white residents. For example, in City of
Richmond v. United States, 422 U.S. 358, 372 (1975), the Court

approved the replacement of an at-Iarge electoral system for
the city council with a ward system of four wards -with a 54t

black majorityr'four wards with a heavily white electorate,

and one ward with a 40.9t black population. ltore recenEly,

approving the conversion of an at-large system to a ward sys-

tem in Rogers v. Lodge, 458 U.S. 513, 516 (1982), the Court

observed that a ninority may be unable to elect representa-

tives in an at-large system, but it may be able to elect sev-

eral representatives if si.ngle-member districts are estab-

lished.

The appellants do not seek proportional representation.

Instead, they seek conversion of'an at-Iarge system to a ward

system. Nevertheless, in its discussion of "Applicable Law,n

the court confused an impermissible "proportional political
representation plann with a permissible ward p1an. The

court's perception that the relief the appellants sought com-

peted with the rights secured by section 2 of the Voting

Rights Act was a mistake of law that infected this entire pro-

ceeding. rndeed, the concerns the district court expressed

during the trial about the remedy Ehe apperlants seek were

similar to the views rejected by the congress when it enacted

the 1982 amendments to the Voting Rights Act. See Gingles v.

Edmiston, 590 F. Supp. 345, 355-57 (E.D.N.C. 1984) (three-

15



judgecourt)rprob'juris'noted'Thornburgv'Gingles'105s'
cr. 2L31 (1985).

Althoughtheappellantscontendthatsomeofthedistrict
court,s findings are clearly erroneous when tested by the Pre-

ceptsofUnitedStatesv.UnitedStatesGypsumgo.,333U.S.
364,395(1948)'t'heprinarythesisoftheirappealisthe
commission of errors of law' They assert that' the district

court erred in applying the criteria Prescribed by S' ReP'

No. 4L7 , 9?th Con$' r 2d Sess ' Z8-2g' reprinted in L982 U'S'

CodeCong.&Ad.NewsL71t206-207(hereinaftercitedas
SenateRePort).Thesecriteriawerederivedfromcaselawand
shourd be interpreted in the light of that raw.

oneofthemostimportantfactorsCongressdirected
courtstoconsideristheextenttowhichvotingisracially
polarized.Thedistrictcourtadoptedadefinitionofpolari.
zation that required the appellants to Prove 'white backlash"

andthat"whitesattempttoliuritthefieldofcandidates.n
InSuPPortofthisdefinition,itcitedasinglecase,United
Statesv.DallasCouniyCommission,548F.SuPP.875,904-05
(S.D. AIa' 1982) ' This case' however' has been reversed by a

decisionthatrecognizedtheexistenceofracialpolarization
without requiring proof of either additional element' E

UnitedStatesv.DaIlasCountyCommission,l39F.2dL529,
I535-35 (llth Cir' 1984) '

The definition of polarization the

is contrary to precedent' The Suprene

that racially polarized voting exists

district court aPPlied

Court has recognized

when there is'bloc

I5



\\r-ing along racial lines.n Rogers v. LOdge, 458 U.S. 613,

623 (1982). See United Jewish Organizations v. Carey, 430

u.s. L44, 156 1L977) (voting following racial lines). see

also NAACP v. Gadsen County School Board, 591 F.2d 978, 982

(IIth cir. 1982); City of Rome v. United states, 472 F. SuPP.

22L, 226 (D.D.C. L979) (three-judge court), aff 'd, 446 U.S.

ls5 (1980).

The additional elements the district court engrafted on

the accepted definition of racially polarized voting require

proof of intention to abridge the minority's voting rights.

This is evident from the Court's insistence that minority com-

plainants Prove that "whites attemPt to limit the field of

candidates.n But in enacting the 1982 amendments to the Vot-

ing Rights Act, Congress elirninated the necessity of proving a

discrininatory PurPose to establish a violation of the Act.

See Senate Report at 2'7, 1982 U.S. Code Cong. & Ad. News 205.

The district court's interpretation is contrary to the cardi-

nal principle of the 1982 amendment.

Another factor deemed important by the Senate Judiciary

Committee is a slating Process to which the minority has been

denied access. To determine whether this factor exists, the

district court adopted, without the citation of precedent, a

restrictive definition of a 'Slate.n The court required the

appellants to prove a "permanent or semipermanent organiza-

tiono which solicits candidates to run for office and puts

them up "for as many seats as are open." The legislative his-

tory offers no SuPport for this definition. It is contrary to

LI



theacceptedneaningof"slate'nwhichWebster'sThird
InternationalDictionarvdefinesassimplynthegroupofPer-
sonsproposedforappoinEment,nomination,orelection."sig-
nificantly,courtSthathavediscussedslatesoraslating

Processhavenotimposedtheburdensomerequirementsinitiated
by the district court' See White v' Regester' 4L2 U'S' 755'

166-51119?3);t{clntoshCountyNAACPv.Darien,505F.2d753,

758 (5th Cir. 1979).

TheresPonsivenessofelectedofficialstotheparticu-
IarizedneedsofthemenbersoftheminoritygrouPisanother
factormentionedintheSenateRePort.Initsinquiryabout
this subject, the district court required the appellants to

ProvethattherelocationofapproximatelylS00blackfamilies
whoseneighborhoodwasredevelopedformiddle-incomefamilies

wasracia}lymotivated.Thisldasanerroroflaw.Itbears
repeatingthatruinoritycitizensarenotrequiredtoprovea
discriminatoryPurPosetoestablishtheirrlghtsundersection
2oftheVotingRightsAct.FaultyinterpretationoftheAct
isnotavoidedbyreguiringproofofnracialmotivatiofl,'for
thistermissimplyasemanticdisguisefor"discriminatory
purtrrose. "

contrarytosupremeCourtprecedent,thedistrictcourt
held that staggered terns and the lack of residency require-

ments do not enhance the opportunity for discriminaBion

against minorities' See City of Rome v' United States' 445

U.S. 155, f85 (1980) (staggered terms); Rogers v' Lodge' 458

U.S. 513, 627 (1982) (lack of residency requirements)' See

I8



.r- so Jones v. Lubbock , 727 F.2d 364, 393 (19g4) (staggered

terms are evidence of violation of section 2 of the voting
Rights Act). Additionally, staggered terms of office are

cited as examples of objective factors of discrimination in
both llouse and Senate reports. H.R. Rep. No. 227, 97th Cong.,
lst sess. 18 (1981); senate Report at L43-44, r9g2-u.s. code

Cong. & Ad. News 315-16.

rt is not the function of this dissent to reassess the
evidence in light of the correct principles of law. This can

be undertaken by the district court on remand. rt is enough

to note that the district court,s judgrnent is fatally flawed
by its erroneous interpretation of statutory and case law and

that application of proper legal standards to the evidence
could alter the outcome of this titigation.

Nevertheless, a fact the district court omitted in its
opinion deserves comment. The keystone of the appellees' de-
fense was the election of a second brack councilman in l9g4
after this action was commenced. fhe appellants challenge the
significance of this event. They point out that despite a

long history of discrimination by city officials, the mayor

for the first time supported a second black candidate for
council. The appellants emphasize that the mayor publicry
stated how the election of the candidate would affect this
litigation in which the mayor was a defendant.

Testifying under cross-examination, the mayor admitted
that he was quoted correctly in a neerspaper article before the
election:

19



I

IPlaintif f s' 'attorney]: Now, the next to the
Iast laragraph of that article, "The election of a
seconE blick-Council member could influence the out-
come of an NAACP suit seeking a ward system in
Norfolk. The suit contends current at-Iarge elec-
tions have prevented blacks from getting fSir rePre-
senLation on Council and seeks to establish a ward
system. The case is scheduled to be lheard] l'Iay L7
in the U. S. oistrict Court.

And then you're quoted here, t{ayor, o'Af ter the
election, the issue of black rePresentation may be-
come a moot Pointr' Thonas said-"

Do you agree with that?

[.tayor]: Yeah, I said that. - That's merely an
observation. That has nothing to do with my motiva-
tion for supporting a black for City Council.

Regardless of his intentions about supporting a black candi-

date for an unPrecedented second seat, the mayor seized on the

opportunity of that candidacy to let his constituents know

that a favorable vote for the black candidate could moot the

issue oE black rePreSentation, a development, of course, which

he favored.

The mayor's published statement was a subtle racial aP-

pea1, of the tyPe which the Senate report condemns, for iur-

plicitly it appealed to alI who opposed the ward system, which

rras sought by the NAACP, to vote for the mayor's black candi-

date. The district court did not discuss this episode. In-

stead, it brushed aside the challenge to the appellees' de-

fense as "innuendo.n Without mention of the mayor's public

statement about mooting the issue of black rePreSentation, the

district court found: nThere is no evidence that the election

of Rev. Foster was orchestrated by white city officials or

community leaders in an attempt to moot this action."

20



Whatever the mayor did or did not do to "orchestrate" the

black candidacy for a second seat, he certainly promoted it
for an improper purpose. The mayorrs tactic is not new. It
has long been suspect. In a case from which the Senate Judi-

ciary Committee derived the factors it prescribed, Zimmer v.

l.tcKeithen, 485 F.2d L297, 1307 (5th Cir. 1973), aff '-d sub nom.

East Carroll Parish School Board v. Marshall , 424 U.S. 635

(1975), the court said:

[W] e cannot endorse the view that the success of
black candidates at the polls necessarily fore-
closes the possibility of dilution of the black
vote. . . . [S]uch success might be attributable to
political support motivated by different considera-
tions--namely that election of a black candidate
will thwart successful challenges to electoral
schemes on dilution grounds.

Because the evidence discloses that the mayor publicly repre-

sented that election of the black candidate, whom he sup-

ported, might moot the issue that is at the heart of this ac-

tion, I cannot accept the notion that the district courtrs

finding was not clearly erroneous.

I respectfully dissent.

2L