City of West Helena v. Perkins Motion to Dismiss or Affirm

    No. 82-55

In The

Olmtrt at %  Imtpii States
October Term, 1982

City of West Helena, Arkansas, et al.,
Appellants,

Reverend P. L. Perkins, et al.

On Appeal from the United States Court of Appeals 
for the Eighth Circuit

MOTION TO DISMISS OR AFFIRM

* P. A. Hollingsworth 
Janet L. Pulliam

Suite 955, Tower Building 
Little Rock, Arkansas 72201 
(501) 372-0400

W illiam L. Robinson 
Norman J. Chachkin  
Debra A. Miller 

Lawyers’ Committee for 
Civil Rights Under Law 

738 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700 

A ttorneys fo r  Appellees

*  Counsel of Record

W i l s o n  - Ef e s  Pr i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n . d . C .  2 0 0 0 1



TABLE OF CONTENTS
Page

Table of Authorities.................... .............. ....... ......... —. i

Statement ___________ ________________________ ______  2

ARGUMENT—

I. This appeal should be dismissed because this 
Court lacks jurisdiction under 28 U.S.C.
§ 1254(2).......... ........ ............................................. . 5

II. The judgment below should be affirmed or cer­
tiorari should be denied inasmuch as no substan­
tial question warranting plenary review is pre­
sented in this case___ _______________________  7

Conclusion  .............................................................. ......  18

TABLE OF AUTHORITIES
Cases

Bradley v. School Bd. of Richmond, 416 U.S. 696
(1974) _________ ___ - __ ____________________  17

City of Mobile v. Bolden, 446 U.S. 55 (1980)..2, 6,10,14 
Dayton Bd. of Educ. v. Brinkman, 448 U.S. 526

(1979)  ................................... ....... .......... ........ . 11,13
Detroit v. Murray Corp., 355 U.S. 497 (1958).......  7
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)......2, 5, 7-8
Fornaris v. Ridge Tool Co., 400 U.S. 41 (1970) —  7
Hutto v. Finney, 437 U.S. 678 (1978) .............. . 17
Malone v. White Motor Corp., 435 U.S. 497 (1978).. 7
Minnesota v. Alexander, 430 U.S. 977 (1977)......  6
NAACP v. Claiborne Hardware Co., 50 U.S.L.W.

5122 (U.S., July 2, 1982)...__________________  12n
New Orleans v. Dukes, 427 U.S. 297 (1976) ......... 5
Pullman-Standard Co. v. Swint, 50 U.S.L.W. 4425

(U.S., April 27, 1982) ______ ______ ____ ___ _ 10,12
Rogers v. Lodge, 50 U.S.L.W. 5041 (U.S., July 1,

1982) __ _____ ___ __________________ 1, 6, 8, 9,11,13
Swann v. Charlotte-Meeklenburg Bd. of Educ., 402 

U.S. 1 (1971)_______________________ ___ ____  4 n



11

TABLE OF AUTHORITIES— Continued
Page

Thorpe v. Housing Auth. of Durham, 393 U.S. 268
(1969) ...... ...... ................................. - ..... -...... -....  17

United States v. Schooner Peggy, 5 U.S. (1 Cr.)
49 (1801)___ __________ __ -..... ---------------------  17

White v. Regester, 412 U.S. 755 (1973) ..............— 8, 9n
Zimmer v. McKeithen, 458 F.2d 1297 (5th Cir.

1973), aff’d on other grounds sub nom. East 
Carroll Parish School Bd. v. Marshall, 424 U.S.
636 (1975)_____ _____ -----........... ....... .... ..........  9n

Statutes and Rules
28 U.S.C. § 1254(2) ............................. .... - ........ 5,6,8
28 U.S.C. §2 1 0 3 ------- ---------------------- --------------  2,7
Voting Rights Act of 1965, § 2, 42 U.S.C. § 1973.— 2,13,

14
P.L. 97-205, 96 Stat. 131 (1982)........ ..... .......... -2,13,14
Ark. Stat. Ann. § 19-1002.7 (Repl. 1980)......... —  5-6
Sup. Ct. Rule 16.1(a), (c), ( d ) ...... —-........... .........  1

Legislative Materials
S. Rep. No. 97-417, 97th Cong., 2d Sess. (1982)— 15, 16
128 Cong. Rec. (1982) ................. ....... ......... -.... 15n, 16,17
S. 1992, 97th Cong., 2d Sess. (1982).....................  15n
H.R. 3112, 97th Cong., 2d Sess. (1982) ..............  15n



In The

i ’npmttT (Emin xif tlu' lUtitrii fla irs
October Term, 1982

No. 82-55

City of West Helena, Arkansas, et a l ,

Appellants,

Reverend P. L. Perkins, et al.

On Appeal from the United States Court of Appeals 
for the Eighth Circuit

MOTION TO DISMISS OR AFFIRM

Appellees respectfully move, pursuant to Sup. Ct. Rule 
16.1(a), (c), and (d), that the Court dismiss this appeal 
because it lacks jurisdiction thereof since no state statute 
or local ordinance was held invalid by the court below; 
or in the alternative, that the Court summarily affirm the 
judgment below because no susbtantial federal questions 
requiring further development or oral argument are pre­
sented since the case is governed by, and the ruling below 
is fully consistent with, the decision in Rogers v. Lodge, 
50 U.S.L.W. 5041 (U.S., July 1, 1982). The judgment of 
the Court of Appeals for the Eighth Circuit is also sub­
ject to affirmance because it is manifestly correct under



2

i 2 of the Voting Rights Act of 1965, as amended by § 3 
of P.L. 97-205, 96 Stat. 131 (1982), which is now ap­
plicable to this case. Finally, treating the Jurisdictional 
Statement as a Petition for Writ of Certiorari, see 28 
U.S.C. §2103; Doran v. Salem Inn., Inc., 422 U.S. 922, 
927 (1975), the writ should be denied.

STATEMENT

This suit was filed in 1978, challenging the adoption 
and continuation of at-large elections for aldermen (city 
council members) in West Helena, Arkansas. Plaintiffs 
(appellees here) claimed that this election scheme dilutes 
the voting strength of the city’s Black community in viola­
tion of section 2 of the Voting Rights Act of 1965, 42 
U.S.C. § 1973, and the Fourteenth and Fifteenth Amend­
ments to the United States Constitution. The case was 
tried in the fall of 1980, and the district court issued its 
decision on April 10, 1981 (App. 36-37,1 514 F. Supp. 
770).

Relying upon City of Mobile v. Bolden, 446 U.S. 55 
(1980), the trial court rejected plaintiffs’ Fifteenth 
Amendment claim on the ground that no direct interfer­
ence with the right to cast a ballot had been demon­
strated (App. 60, 514 F. Supp. at 780) and plaintiffs’ 
statutory claim on the ground that § 2 of the Voting 
Rights Act was coextensive with the Fifteenth Amend­
ment {id.). The district court also rejected plaintiffs’ 
Fourteenth Amendment claim of vote dilution because, in 
its view, plaintiffs had failed to prove that the at-large 
election system was adopted or maintained “to effect or 
perpetuate racial discrimination” (App. 62, 514 F. Supp. 
at 781).

On appeal, a panel of the Eighth Circuit unanimously 
reversed (App. 1-35, 675 F.2d 201). The panel accepted

1 Citations in this form refer to the Appendix to the Jurisdictional 
Statement filed herein.



3

the lower court’s conclusion that West Helena did not 
adopt at-large voting in 1920 for the purpose of racial 
discrimination. However, it held “ clearly erroneous” the 
district judge’s finding that West Helena’s adherence to 
the at-large system was free of discriminatory intent 
(App. 34, 675 F.2d at 216) and ruled that plaintiffs’ 
showing of the city’s discriminatory motivation for re­
taining at-large elections established violations of § 2 of 
the Voting Rights Act and of the Fifteenth Amendment, 
as well as of the Fourteenth Amendment to the United 
States Constitution (App. 11-12 & nn.5, 6, 14 n.8, 34, 675 
F.2d at 205-06 & nn.5, 6, 207 n.8, 216).

Most of the relevant facts are set out in the opinions 
below, which are reprinted in the appendix to the Juris­
dictional Statement (App. 1-35, 36-67). Appellants’ 
“ Statement of the Case,” however, not only lacks any 
citation to the record; it also omits important elements 
of the proof introduced below and of the findings made 
by the trial court. We treat most of these matters in the 
course of the Argument, infra. It is important here to 
stress only the failure of appellants to acknowledge the 
extent to which the Black community in West Helena 
has been prevented from electing candidates of its choice 
to the city council. Appellants’ recitation that “ [b] etween 
1966 and 1978, twelve blacks have been candidates for1 
council positions and three have been elected” (J.S. 7 2 3) is 
a convenient but gross understatement. In fact, only 
three Blacks have served on the city council since West 
Helena was incorporated in 1917 (App. 41, 44, 514 F. 
Supp. at 772, 773) and each was able to be elected only 
in contests in which he faced more than a single white 
opponent (App. 46, 514 F. Supp. at 774; Tr. 53,® 68, 129, 
258). Whenever a Black has run for an aldermanic posi­
tion, there has been consistent racial bloc voting which

2 Citations in this form are to the Jurisdictional Statement.
3 Citations to “ Tr. ------ ”  refer to the transcript of proceedings

before the district court on September 29 and 30, 1980.



4

prevents a Black candidate from winning in a head- 
to-head contest against a white opponent (App. 46, 514 
F. Supp. at 774; Tr. 57, 109, 136, 248, 300).4 In remarks 
at the conclusion of the trial, the district court recognized 
how at-large voting presents Blacks in West Helena with 
a “ loaded game board” 5 (Tr. 464-65) :

. . . under the present system I think it does work, 
because of the block voting, to decrease a black per­
son’s chance of being elected to the City Council. I 
don’t think there’s any question about that . . .

Now, I can understand that the election system 
as a whole, the electing at large, can be used as a 
tool to effectively cut out black representation on the 
Council. And I guess the question is whether or not 
there was a deliberate intent that was carried out to 
do that in this case that over-balances or outweighs 
the benefits of having people reside in wards and 
stand for election as a whole.

While there is no majority-vote-to-win requirement, the 
ward residency and numbered-place provisions promote 
head-to-head contests in West Helena between Black and 
white candidates (App. 25, 675 F.2d at 212; cf. App. 62, 
514 F. Supp. at 781 (head-to-head contests “not in­
evitable” ) ) .6

4 The city refers to the 1980 appointment of a Black to fill a coun­
cil vacancy (J.S. 7 ); not only was this action taken long- after this 
lawsuit was filed, but it was also the first instance in the city’s 
history of a Black receiving a vacancy appointment (Tr. 128).

5 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 
(1971).

6 The impediment to Black representation on the council created 
by the at-large system with residency and place requirements has 
also contributed to low rates of participation by Blacks in the politi­
cal affairs of the city because of the feeling that votes in city­
wide elections served no purpose (Tr. 198; App. 47, 514 F. Supp. 
at 775).



5

ARGUMENT
I. This appeal should be dismissed because this Court 

lacks jurisdiction under 28 U.S.C. § 1254(2).
Appellants claim this Court has appellate jurisdiction 

to review the holding of the Eighth Circuit pursuant to 
28 U.S.C. § 1254(2), and that its jurisdiction “ is sup­
ported by Doran v. Salem Inn, Inc., 422 U.S. 922 (1975); 
New Orleans v. Dukes, 427 U.S. 297 (1976)”  (J.S. 2). 
These cases are inapposite and there is no basis for the 
construction which appellants would give to § 1254(2). 
This appeal must be dismissed for want of jurisdiction.

Section 1254(2) provides that this Court shall have ap­
pellate jurisdiction over cases from the United States 
Courts of Appeals where the appellant “ rel[ies] on a 
State statute held by a court of appeals to be invalid as 
repugnant to the Constitution, treaties or laws of the 
United States . . . .” The instant appeal is prosecuted by 
the City of West Helena and several of its officers (de­
fendants in the trial court),7 but it cannot be said either 
that appellants are “ relying on a State statute” nor that 
any enactment was “held by a court of appeals to be 
repugnant to the Constitution, treaties or laws of the 
United States.”

Nowhere in their description of the “ substantial ques­
tion” presented by this appeal (see J.S. 9-13) do appel­
lants even advert to, much less rely upon, any state stat­
ute or local ordinance.8 Under Ark. Stat. Ann, § 19-

7 The State of Arkansas was a party below, having intervened 
as a defendant “ for the sole purpose of defending constitutionality 
of challenged Arkansas statutes,” Brief of Appellee, State of 
Arkansas, Perkins v. City of West Helena,, 8th Cir. No. 81-1516, at 
2. The State of Arkansas has not appealed from the ruling of the 
Eighth Circuit.

8 We recognize that ordinances have been treated as the equiva­
lent of state statutes for purposes of 28 U.S.C. § 1254(2). E.g., 
New Orleans v. Dukes and Doran v. Salem Inn, Inc., cited by ap­
pellants. However, appellants fail to identify any local ordinance



6

1002.7 (Repl. 1980) (J.S. 5), which has been applicable 
throughout the course of this litigation (App. 43-44, 514 
F. Supp. at 773), the decision whether to retain at-large 
elections for city council positions in West Helena is the 
city council’s alone; the Arkansas statute authorizes either 
at-large or ward elections, at the option of the city.9 For 
this reason, appellants have never, in this litigation, de­
fended their continuation of at-large city council elec­
tions by claiming that such contests are required or fa­
vored by any state law.

Similarly, appellants do not identify where in its opin­
ion the court below “held [a state statute or ordinance] 
repugnant to the Constitution, treaties or laws of the 
United States.” Although the Court of Appeals properly 
considered the actual operation of the West Helena city 
council voting scheme, including elements attributable to 
state law (App. 25, 675 F.2d at 212), its opinion contains 
no statement that any statute or ordinance is invalid. In 
the absence of a clear indication to this effect, this Court 
would appear to lack jurisdiction under § 1254(2). See 
Minnesota v. Alexander, 430 U.S. 977 n.l (1977) 
(Stevens, J., dissenting).

Furthermore, the ruling below does not amount to hold­
ing any law invalid as applied. Since the state law does 
not, by its terms, mandate the use of only at-large elec­
tions in West Helena, this suit is distinguishable from 
City of Mobile v. Bolden, 446 U.S. 55, 59-60 (1980) and 
Rogers v. Lodge, 50 U.S.L.W. 5041, 5041-42 (U.S., July 
1, 1982). In those cases, this Court had appellate juris­
diction from decisions of the Fifth Circuit because invali­
dation of the at-large voting systems of Mobile and

of the City of West Helena upon which they seek to rely, or which 
was held invalid by the Court of Appeals.

9 The parties stipulated that “ [t] he State of Arkansas has no 
legislative policy which prefers at-large elections” (App. 44, 514 
P. Supp. at 773).



7

Burke County necessarily implied a holding that state 
statutes requiring at-large voting were, at least as ap­
plied to the two localities, inconsistent with federal law. 
See, e.g., Malone v. White Motor Corp., 435 U.S. 497, 499 
(1978); Detroit v. Murray Corp., 355 U.S. 497, 499 
(1958).

Finally, no West Helena ordinance of any kind is in­
volved in this case and none was held invalid either ex­
plicitly or by implication. The most which can be said 
is that West Helena’s failure to adopt an ordinance for 
ward elections was a key factor in the Court of Appeals’ 
determination that unconstitutional conduct had occurred. 
To be sure, this case would be in a different posture if 
the Arkansas law had required ward elections in the ab­
sence of a local ordinance providing for at-large contests, 
and if the city council of West Helena had adopted such 
an ordinance. Plaintiffs-appellees would in such circum­
stances, of necessity, be challenging the constitutionality 
of an ordinance, and the Court of Appeals’ decision would 
be reviewable here by way of appeal. See note 8 supra. 
This does not, however, furnish a basis for appellate ju­
risdiction over the present case. The statutes defining 
this Court’s obligatory jurisdiction are strictly construed. 
E.g., Fornaris v. Ridge Tool Co., 400 U.S. 41, 42 n.l 
(1970) (holding Court had no appellate jurisdiction over 
decision of federal court of appeals invalidating statute 
of Puerto Kico).

For these reasons, the appeal should be dismissed for 
lack of jurisdiction. II.

II. The judgment below should be affirmed or certiorari 
should be denied inasmuch as no substantial question 
warranting plenary review is presented in this case.

If the Court agrees that it lacks appellate jurisdiction 
over this matter and dismisses the city’s appeal, it must 
nevertheless consider whether review by way of certiorari 
would be appropriate. 28 U.S.C. §2103; see Doran v.



8

Salem Inn, Inc., 422 U.S. 922, 927 (1975). We submit 
that because no substantial issues warranting further 
briefing or oral argument have been raised by the city, 
the Court should not grant the writ. These same con­
siderations compel summary affirmance of the judgment 
below if the Court sustains appellate jurisdiction under 
28 U.S.C. § 1254(2).

A.
West Helena argues essentially that because of minor 

factual differences between this case and White v. 
Regester, 412 U.S. 755 (1973) or Rogers v. Lodge, 50 
U.S.L.W. 5041 (U.S., July 1, 1982), the judgment below 
is erroneous.10 This approach to adjudication trivializes 
the function of the Court. Because the Eighth Circuit

10 For example, appellants emphasize that West Helena’s at-large 
system does not include a majority-vote requirement, as did those 
in Dallas, Bexar and Burke Counties (J.S. 11). It is significant, 
however, that each time a Black was elected to the West Helena 
council because the white vote was split between two white candi­
dates, the Black was then defeated for reelection in a head-to-head 
contest against a single white opponent (App. 46, 514 F. Supp. at 
774). Moreover, in weighing “the totality of the circumstances to 
determine whether the at-large electoral system was created or 
maintained to accord the members of the allegedly injured group 
less opportunity than other voters to participate meaningfully in 
the political process and elect legislators of their choice” (App. 18, 
675 F.2d at 209), the Court of Appeals recognized that the absence 
of a majority-vote requirement “ decrease[d] the likelihood that 
West Helena’s electoral system is being maintained for a discrimi­
natory purpose” (App. 23, 675 F.2d at 211). But it properly held 
that this single factor was not dispositive and concluded, “ [o]n the 
basis of the direct and circumstantial evidence in this case,” “ [ajfter 
carefully reviewing the record and briefs, and hearing oral argu­
ment,” that the at-large system was being maintained for discrimi­
natory purposes and that the district court’s contrary finding was 
“ clearly erroneous” (App. 34, 675 F.2d at 216).

Appellants also urge that Rogers is distinguishable because no 
Black had ever been elected to the Burke County commission, while 
three Black persons have won single terms on the West Helena city 
council (J.S. 11, 12). Clearly, however, an at-large system need not 
be so efficient as to exclude minority candidates completely in order



9

correctly applied the legal principles announced in earlier 
cases and confirmed in Rogers, its judgment should not 
be disturbed.

The central issue in this case, through trial and ap­
peal, was whether at-large elections in West Helena— 
which admittedly make it difficult for the Black commu­
nity to elect representatives of their choosing—were 
adopted initially or were currently being retained for

to be condemned under the Fourteenth Amendment. In White v. 
Regester, 412 U.S. at 766, 768-69, this Court noted that two Blacks 
from Dallas and five Mexican-Americans from Bexar County had 
served in the Texas legislature. Nevertheless, the multi-member 
legislative districts involved in that case were held to violate the 
Constitution by diluting the voting strength of minorities, who had 
“less opportunity than did other residents in the district to partici­
pate in the political processes and to elect legislators of their choice.” 
412 U.S. at 766 (emphasis added).

West Helena’s focus upon narrow factual distinctions between 
this case and White or Rogers recalls the discredited view that 
proof of some combination of enumerated factors, without more, will 
establish a constitutional violation—the very interpretation of 
Zimmer v. McKeithen, 458 F.2d 1297 (5th Cir. 1973), aff’d on other 
grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 
U.S. 636 (1975) (per curiam) which was rejected by this Court— 
see Rogers v. Lodge, 50 U.S.L.W. at 5043. The approach of the 
court below was consistent with Rogers:

The absence or presence of some, or all, of the Zimmer 
factors, however, is not conclusive of the discriminatory pur­
pose issue. . . .

. . .  In determining whether a discriminatory purpose ex­
isted, no set of factors, including those suggested in Zimmer 
and Arlington Heights, is dispositive of the question of intent. 
Moreover, even if all of the Zimmer and Arlington Heights fac­
tors are established, an inference of diserminatory intent is not 
necessarily to be drawn. The district court must consider the 
totality of circumstances to determine whether the at-large 
electoral system was created or maintained to accord the mem­
bers of the allegedly injured group less opportunity than other 
voters to participate meaningfully in the political process and 
elect legislators of their choice.

(App. 17-18, 675 F.2d at 208-09.)



10

racially discriminatory purposes. The district court 
viewed the evidence as insufficient to establish discrimi­
natory intent, describing its holdings as “ legal conclu­
sions” (App. 61-62, 514 F. Supp. at 781-82). The Court 
of Appeals reversed with respect to the city’s continued 
adherence to at-large elections. It both found legal error 
affecting the trial judge’s evaluation of the proof and also 
concluded that the ultimate holding of no invidious pur­
pose was a “clearly erroneous” finding. Cf. Pullman- 
Standard Co. v. Swint, 50 U.S.L.W. 4425 (U.S., April 27, 
1982).

1. The district court made extensive findings of unre­
sponsiveness by the city council to the legitimate desires 
and needs of the Black community (App. 50-55, 514 F. 
Supp. at 776-78),11 but it gave almost no weight to this 
evidence—based upon its reading of the plurality opinion 
in Bolden (App. 62, 514 F. Supp. at 782). The Court of 11

11 Appellants seek to minimize the extensive record evidence of 
the council’s refusal to address the needs of West Helena’s Black 
community by asserting that “ the black wards have received approxi­
mately $357,000 more in improvement funds than have the white 
wards” (J.S. 7). The evidence on street improvements (from which 
this figure was apparently derived) does not establish what the city 
seeks to imply: that these funds were expended only in Black 
residential areas of Wards 1 and 4. The evidence presented by the 
city to the trial court did not distinguish between expenditures in 
predominantly Black and predominantly white residential areas 
within the wards (Tr. 350-51; see Tr. 369-70). In any event, dif­
ferential current expenditures of this magnitude would merely con­
firm the severe neglect of Black residential areas by West Helena’s 
governing body in the past (App. 21, 675 F.2d at 210-11; App. 53, 
514 F. Supp. at 777; see Tr. 52, 69-70, 91, 96-100, 118, 148-67, 268, 
277-78, 311, 315-16, 382-83, 461).

Moreover, 70% of expenditures for street improvements during 
the time period covered by the city’s exhibits, as the district court 
noted, were from federal grant funds rather than local revenues 
(App. 53, 514 F. Supp. at 777). Obtaining an equitable share of 
municipal services is an important reason why Blacks seek political 
office in West Helena (Tr. 52, 148-54; App. 48-49, 54-55, 514 
F. Supp. at 775, 778).



Appeals recognized that such evidence is “probative of a 
finding that the at-large system is being maintained for 
a discriminatory purpose” (App. 21-22, 675 F.2d at 211), 
and its approach is confirmed by the majority opinion in 
Rogers, 50 U.S.L.W. at 5044 & n.9 (unresponsiveness “ in­
creases the likelihood that the political process was not 
equally open to blacks” ).

The Court of Appeals also rejected the district judge’s 
conclusion that “ [all] [c]itizens of West Helena register 
and vote in municipal elections for the candidates of their 
choice without hindrance . . (App. 61, 514 F. Supp. at 
781) (emphasis added) because it was inconsistent with 
the trial court’s subsidiary factfinding about impediments 
to Black participation in the political processes of West 
Helena (App. 18-20, 675 F.2d at 209-10). This is cer­
tainly unexceptionable performance of the task of an ap­
pellate court. Dayton Bd. of Educ. v. Brinkman, 443 U.S. 
526, 534-36 & n.8 (1979).

Perhaps most significant, the Court of Appeals 
thoroughly canvassed the record evidence bearing upon 
the reasons why the city council refused to switch to 
ward elections when it was petitioned to do so by the 
Black community in 1977. It concluded that the district 
judge had erred in accepting after-the-fact rationaliza­
tions described in the trial testimony of the current and 
former Mayors of West Helena12 (App. 27-30, 675 F.2d 
at 213-14). The Court of Appeals’ determination is 
strongly supported by the direct evidence in the record: 
the official council minutes from 1977 contain one alder­

11

12 Jesse Porter, the Mayor of West Helena from 1952 to 1979, 
testified that at-large elections, were preferable to ward elections 
in terms of producing a council responsive to all citizens and inter­
ests (Tr. 380). But Porter did not vote on the issue in 1977 (see 
PX 37; App. 57 n.22, 514 F. Supp. at 779 n.22). He also testified 
that throughout his entire administration, both the Mayor and 
council had always been responsive to the Black community (Tr. 
387); of course, the district judge found, and appellants concede, 
to the contrary (J.S. 7, 10; App. 50-55, 514 F. Supp. at 776-78).



12

man’s statement opposing ward elections because “ I do 
not think you would have fair representation as far as 
white people are concerned with the four wards” (PX 37, 
see App. 57 n.22, 514 F. Supp. at 779 n.22); a current 
alderman—who lost to a Black candidate in a three-way 
race in 1976 and regained his seat by defeating the same 
Black candidate in a head-to-head race in 1978 (Tr. 129- 
36)— testified that he opposed the ward election system 
because “ there’s more black people that live in the ward 
that I live in than white people” (Tr. 248, quoted at App. 
28-29, 675 F.2d at 214) ; the request for ward elections 
was presented to the council as one of a list of grievances 
involving racial discrimination against Blacks in West 
Helena, in the midst of a peaceful boycott by the Black 
community 13 (see App. 48, 514 F. Supp. at 775). Active 
West Helena political figures who appeared at the trial, 
Black and white, testified that the city’s racial residential 
segregation and its pattern of racial bloc voting were well 
known, and that in combination with the at-large system 
gave white voters the power to prevent the election of 
Blacks (Tr. 53, 57, 109, 130-32, 248, 258, 300, 389, 291, 
449-50).

2. When such intermediate legal and factual mistakes 
were corrected by the Court of Appeals, it was left with 
a record which could not sustain the district court’s ulti­
mate determination respecting discriminatory intent. 
Giving appropriate probative weight to evidence the lower 
court had ignored, and viewing the “totality of the cir­
cumstances,”  the Court of Appeals held that ultimate find­
ing was “ clearly erroneous” (App. 34, 675 F.2d at 216). 
Contrary to appellants’ claim (J.S. 12), this was not im­
proper. As we have demonstrated, and unlike Pullman- 
Standard Co. v. Swint, see 50 U.S.L.W. at 4428, 4430 & 
n.21, the court below carefully assessed all of the sub­
sidiary fact-finding by the trial court, giving appropriate

13 See NAACP v. Claiborne Hardware Co., 50 U.S.L.W. 5122 
(U.S., July 2, 1982).



w
deference to findings which were adequately supported 
and making necessary modifications and corrections to 
findings which were not, before passing upon the central 
issue of discriminatory intent. See Rogers v. Lodge, 50 
U.S.L.W. at 5044. Since the Eighth Circuit panel faith­
fully applied the “clearly erroneous” standard, Dayton 
Bd. of Educ. v. Brinkman, 443 U.S. at 534 n,8, and since 
its conclusions are fully consistent with Rogers v. Lodge, 
this case presents no substantial issues justifying a grant 
of certiorari or further briefing and oral argument.

B.
The need for plenary review in this case is further 

diminished by the recent passage of the Voting Rights 
Act Amendments of 1982, P.L. 97-205, 96 Stat. 131 
(1982). The text and legislative history of that statute 
demonstrate that the changes it makes to § 2 of the Vot­
ing Rights Act were intended to apply to pending cases 
and also that they were designed to eliminate the ne­
cessity for proving “discriminatory intent” in order to 
establish a § 2 violation.

Section 3 of the measure, 96 Stat. at 134, amends § 2 
of the Voting Rights Act of 1965, 42 U.S.C. § 1973, to 
provide as follows:

(a) No voting qualification or prerequisite to voting 
or standard, practice, or procedure shall be imposed 
or applied by any State or political subdivision in a 
manner which results in a denial or abridgement of 
the right of any citizen of the United States to vote 
on account of race or color, or in contravention of 
the guarantees set forth in section 4(f )  (2), as pro­
vided in subsection (b).
(b) A violation of subsection (a) is established if, 
based on the totality of circumstances, it is shown 
that the political processes leading to nomination or 
election in the State or political subdivision are not 
equally open to participation by members of a class 
of citizens protected by subsection (a) in that its



14

members have less opportunity than other members 
of the electorate to participate in the political process 
and to elect representatives of their choice. The ex­
tent to which members of a protected class have been 
elected to office in the State or political subdivision 
is one circumstance which may be considered: Pro­
vided, That nothing in this section establishes a right 
to have members of a protected class elected in num­
bers equal to their proportion in the population.

Both courts below were in agreement that at-large voting 
for aldermen gives the Black citizens of West Helena 
“ less opportunity than other members of the electorate to 
participate in the political process and to elect representa­
tives of their choice.” They differed only on the question 
whether plaintiffs had proved that the at-large system 
was being retained for discriminatory purposes. There­
fore, under § 2 as now amended, the judgment below is 
unquestionably correct and due to be affirmed.

1. In City of Mobile v. Bolden, 446 U.S. 55, 61 (1980), 
the plurality interpreted § 2 of the Voting Rights Act 
(prior to its 1982 amendment) as “ intended to have an 
effect no different from that of the Fifteenth Amend­
ment itself.” Because the plurality read the Fifteenth 
Amendment to proscribe only voting limitations motivated 
by discriminatory intent, id. at 61-64, it applied the same 
standard to § 2. However, the recent amendment adds 
critical language giving the statute substantial independ­
ent significance. First, in subsection (a), which was pre­
viously the entire text of § 2, the amendment changes the 
phrase “ to deny or abridge the right of any citizen of 
the United States to vote on account of race or color” to 
read as follows (emphasis added) :

in a manner ivhich results in a denial or abridgement 
of the right of any citizen of the United States to 
vote on account of race or color, or in contravention 
of the guarantees set forth in section 4 ( f ) ( 2 ) ,  as 
provided in subsection (b).



15

Second, the amendment adds an entire new subsection (b) 
describing how a violation of § 2 is to be established 
(quoted supra pp. 13-14). Thus, the language of § 2, as 
amended in 1982, is far different from that of the Fif­
teenth Amendment. The statutory language emphasizes 
results, not intent, and calls for a judgment based upon 
the totality of the circumstances rather than proof of 
discriminatory motivation as an essential element.

2. The legislative history of the 1982 enactment dem­
onstrates that this shift in legal standards was a primary 
goal of the Congress. The Senate Report on the b ill14 
states, under the heading “PURPOSE” :

S. 1992 amends Section 2 of the Voting Rights Act 
of 1965 to prohibit any voting practice, or procedure 
results [sic] in discrimination. This amendment is 
designed to make clear that proof of discriminatory 
intent is not required to establish a violation of Sec­
tion 2. It thereby restores the legal standards, based 
on the controlling Supreme Court precedents, which 
applied in voting discrimination claims prior to the 
litigation involved in Mobile v. Bolden. The amend­
ment also adds a new subsection to Section 2 which 
delineates the legal standards under the results test 
by codifying the leading pre-Bolden vote dilution 
case, White v. Regester.

S. Rep. No. 97-417, 97th Cong., 2d Sess. 2 (1982) (foot­
notes omitted). The Report contains an extensive discus­
sion of the Section 2 changes [id. at 15-43), explicitly 
repudiating the “ intent” test. Significantly, the Senate 
Judiciary Committee rejected an amendment to the bill 
which “would have prevented the existence of an at-large

u The Senate debated and amended the bill reported out by the 
Judiciary Committee, S. 1992, and then incorporated it into the 
House bill, H.R. 3112, as a substitute. 128 Cong. Rec. S7139 (daily 
ed., June 18, 1982). The House then passed the Senate-amended 
bill, id. at H3839-46 (daily ed., June 23, 1982).



16

election system from being considered as evidence of a 
violation of Section 2 of the Act,”  id. at 4.

Senator Mathias, acting as manager, introduced the 
measure when it reached the Senate floor and stated that 
“ [t]his amendment is designed to make clear that proof 
of discriminatory intent is not required to establish a 
violation of section 2.”  128 Cong. Rec. S6941 (daily ed., 
June 17, 1982). Later in the debate on that same day, 
Senator East sought to strike the amendments to § 2 of 
the Voting Rights Act from the measure in order to re­
store the “ intent” test (id. at S6956):

. . .  I would characterize the first amendment I offer 
as the most significant, substantive one. It addresses 
an issue of nationwide concern. Specifically, Mr. 
President, it deals with Section 2 of S. 1992 under 
which, Mr. President, we would no longer use an in­
tent test of [sic] determine whether there has been 
wrongdoing within the meaning of the civil rights 
law but would use an effects or results test.
Mr. President, this is a very intriguing departure 
from the normal way we have protected the right to 
vote under the 15th amendment.

My concern is that a wholly new approach to voting 
is being created under section 2.

Senator East's proposed amendment to the bill was de­
feated (id. at S6965).

In similar fashion, when the Senate-passed bill was 
considered by the House, the effect of the Section 2 
amendments was emphasized. Rep. Edwards, the floor 
manager, said that the “ amendment is designed to make 
clear that proof of discriminatory intent is not required 
to establish a section 2 violation. In fact, the imposition 
of an intent standard under section 2 has been specifi­
cally and decisively rejected by both the House and the 
Senate.” Id. at H3841 (daily ed., June 23, 1982). Rep. 
Sensenbrenner was even more explicit (id.) :



17

Let there be no question then. We are writing into 
law our understanding of the test in White against 
Regester. And our understanding is that this looks 
only to the results of a challenged law, in the totality 
of the circumstances—with no requirement of prov­
ing purpose. But should the Highest Court in the 
land—or a majority of the Court— conclude there is 
a purpose element in White, then the committee none­
theless has drafted a bill that does not incorporate 
this requirement, and that is the ultimate legislative 
intent of the bill we are adopting here today.

There is thus no room to doubt the substantial shift 
worked by the 1982 Act.

Furthermore, under established principles, the new 
statute governs disposition of this case. Bradley v. School 
Bd. of Richmond, 416 U.S. 696 (1974) ; Thorpe v. Hous­
ing Auth. of Durham, 393 U.S. 268 (1969) ; United 
States v. Schooner Peggy, 5 U.S. (1 Cr.) 49 (1801). 
Prior to its passage by the House of Representatives, ap­
plication of the new § 2 standards to pending cases was 
specifically brought to the attention of that body by Rep. 
Sensenbrenner (128 Cong. Rec. at H3841) :

Section 2, unlike the bailout procedure added by this 
bill, will take effect immediately and will, of course, 
apply to pending cases in accordance with the well- 
established principles of Bradley v. City of Rich­
mond, 416 U.S. 686 (1974) and United States v. 
Alabama, 362 U.S. 602 (1960).

See Hutto v. Finney, 437 U.S. 678, 694 n.23 (1978).15
As we pointed out above, since both courts below found 

that at-large voting impeded the ability of Blacks in West 
Helena to elect representatives of their choice, when the 
new § 2 is applied to this case, affirmance of the judgment 
below is compelled.

16 The Voting Rights Act Amendments of 1982 were signed by 
the President on June 29, 1982.



18

CONCLUSION
For the foregoing reasons, the appeal should be dis­

missed and, treating the papers as a petition, the writ of 
certiorari should be denied; or in the alternative, the 
judgment below should be affirmed.

Respectfully submitted,

* P. A. Hollingsworth 
Janet L. Pulliam

Suite 955, Tower Building 
Little Rock, Arkansas 72201 
(501) 372-0400

W illiam L. Robinson 
Norman J. Chachkin  
Debra A. Miller 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Appellees
* Counsel of Record



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