Whitfield v. Clinton Brief Amicus Curiae

    No. 90-383

In %  <&mtrt ni %  Mnttelt States
October Term, 1990

Sam  W hitfield, Jr., et al ., petitioners

v.

Bill Clinton, Governor of A rkansas, et al.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE!

Kenneth W. Starr 
Solicitor General

John R. Dunne 
Assistant Attorney General

John G. Roberts, Jr.
Deputy Solicitor General

Roger Clegg
Deputy Assistant Attorney General 

A my L. Wax
Assistant to the Solicitor General

Jessica Dunsay Silver 
Susan D. Carle 

Attorneys
Department of Justice 
Washington, D.C. 20580 
(202) 511-2217



QUESTIONS PRESENTED
1. Whether black voters have standing to challenge a 

state law majority vote requirement under Section 2 of 
the Voting Rights Act of 1965, 42 U.S.C. 1973, when 
they comprise 47% of the voting age population of the 
jurisdiction.

2. Whether the district court erred in concluding after 
trial, under the totality of the circumstances, that a state 
law requirement that a party nominee win “a majority 
of all the votes cast for candidates for the office in a 
primary election” did not deprive black voters of rights 
guaranteed under Section 2 of the Voting Rights Act, 
42 U.S.C. 1973.

(i)





TABLE OF CONTENTS
Page

Statement..... ...... ................ ................................... ........... 1
Discussion............ ........... .................................................. 8
Conclusion______ _______ _____ ___ ________ ____ ___  20

TABLE OF AUTHORITIES
Cases:

Butts V. City of New York, 779 F.2d 141 (2d Cir.
1985)............. ....... ................. ........... ....................  9, 17

City of Port Arthur V. United States, 459 U.S. 159
(1982) ___________ ____________ _________ ____  13

City of Rome V. United States:
446 U.S. 156 (1980) ______ _____ _____ ....10, 11, 13, 14
472 F. Supp. 221 (D.D.C. 1979) ............. ...... ....  14

McCray v. New York, 461 U.S. 961 (1983)______  10
Thornburg v. Gingles, 478 U.S. 30 (1986)___3, 11, 14, 15,

16, 17, 18, 19
Westwego Citizens for Better Gov’t V. Westwego,

872 F.2d 1201 (5th Cir. 1989)_______ _____ ___  19
White V. Regester, 412 U.S. 755 (1973)__________ 10, 13
Zimmer V. McKeithen, 485 F.2d 1297 (5th Cir.

1973), aff’d sub nom. East Carroll Parish School 
Bd. V. Marshall, 424 U.S. 636 (1976)_______ __  10, 18

Constitutions, statutes, and rule:
U.S. Const.:

Amend. X IY _________ ______ ____ __________  2
Amend. X V .... ......... ............... .................. ........  2

Ariz. Const, art. 5, § l.B (Supp. 1989) _________ 8
Ark. Const, of 1874, amend. 29, § 5 (1938)....... ......  2, 8
Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:

§ 2, 42 U.S.C. 1973...........2, 5, 7, 8, 9,11, 12, 13, 14, 18
§ 2 (a), 42 U.S.C. 1973(a)  ________________ _ 11
§ 2 (b ) , 42 U.S.C. 1973 (b )__ _____ ____ __ _ 15
§ 5, 42 U.S.C. 1973c__ ______ ___________ 9,11, 12, 13

Voting Rights Act Amendments of 1982, Pub. L. 
No. 97-205, 96 Stat. 131 _____________ ________

(Ill)

7-8



IV

Constitutions, statutes, and rule—Continued: Page
Ala. Code (Supp. 1990) :

§ 17-16-6___ _______ ______ ____ ____________ 8
§ 17-16-35___ _______________ _____ _________ 8

Ark. Stat. Ann. (1976) :
§§3-110 to 3-113__ ________________________  8
§ 3-113 (Supp. 1985)............ ................ ......... . 8
§ 3-113 (c) ..... ........ .............................................. 8
§ 3-113 (d ) ...................... ................... ......... ........ 8
§ 3-113 ( i ) .............................. ............................... 8

Ark. Stat. Ann. (1987) :
§ 7-5-106..............................................................  2, 3
§7-5-106 (Supp. 1989).......... .............................. 2
§ 7-7-202........................................ ............. .......  2, 8
§ 7-7-203 (Supp. 1989)......................... .............  2

Fla. Stat. Ann. (Supp. 1990) :
§ 100.061 ......... ...... .............................................. 8
§ 100.091................................ .............................. 8

Ga. Code Ann. § 21-2-501 (1987) ....... ............ ........  8
La. Rev. Stat. (1979) :

§ 18:402 (Supp. 1990) ...................... .................  8
§18:481.........................    8

Miss. Code Ann. § 3109 (Supp. 1989) ________ ___ 8
N.C. Gen. Stat. § 163-111 (Supp. 1990)....... ...... ...... 8
Okla. Stat. Ann. tit. 26 (Supp. 1990) :

§ 1-102................. ...... ................................ ........  8
§ 1-103........     8

S.C. Code Ann. § 7-13-50 (Law. Co-op. Supp.
1989).............      8

Tex, Code Ann. § 13.003 (Vernon Supp. 1990).....  8
Sup. Ct. R. 14.1 (a) ............................ ............. ...........  19

Miscellaneous:
121 Cong. Rec. 16,251 (1975)____    12
H.R. Rep. No. 196, 94th Cong., 1st Sess. (1975)___ 12
H.R. Rep. No. 227, 97th Cong., 1st Sess. (1981).  12-13
S. Rep. No. 295, 94th Cong., 1st Sess. (1975)...........  12
S. Rep. No. 417, 97th Cong., 2d Sess. (1982)...........3, 12, 17



In %  ̂ it|rr?me ( ta r t nf tty Hmtrfc States
October  T e r m , 1990

No. 90-383
Sa m  W h itfie ld , J r ., et a l ., petition ers  

v.

B il l  Cl in t o n , Governor  op A r k a n s a s , et a l .

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

BRIEF' FOR THE UNITED STATES 
AS AMICUS CURIAE

This brief is filed in response to the Court’s invitation 
to the Solicitor General to express the views of the 
United States.

STATEMENT

1. Phillips County is a predominantly rural, econom­
ically depressed county in Arkansas. According to the 
1980 census, the County has a total population of 34,772 
residents of whom 53% are black. Pet. App. 6a n.l. 
Blacks constitute 47% of the County’s voting age popu­
lation. Ibid.

All six countywide elective offices 1 are filled through 
partisan elections. No black candidate has ever been 
nominated for countywide office by either the Democratic

1 These offices are sheriff, judge, treasurer, assessor, county clerk, 
and circuit clerk (JX 1, at 20).

( 1 )



2

or Republican Party. Pet. App. 125a. Nor has any black 
candidate won countywide office. Ibid.

Under a 1939 amendment to the Arkansas Constitu­
tion (Pet. App. 66a), a party nominee must receive a 
“majority of all the votes cast for candidates for the 
office in a primary election.” Ark. Const, of 1874, amend. 
29, § 5 (1938). See Pet. App. 7a-8a. Under the state 
statute designed to implement this provision, the pri­
mary process consists of a “preferential” primary elec­
tion and, if necessary, a runoff “ general primary” elec­
tion. Ark. Stat. Ann. § 7-7-202 (1987). The preferential 
primary is held two. weeks before the general primary. 
Ark. Stat. Ann. § 7-7-203 (Supp. 1989).

In 1983, the Arkansas Legislature also enacted a run­
off requirement for general elections for municipal and 
county offices. Ark. Stat, Ann. § 7-5-106 (1987). Mu­
nicipal offices in Phillips County are filled through non- 
partisan elections. There is no primary election as such, 
and a runoff is often required because the participation 
of multiple candidates tends to prevent any one candi­
date from obtaining a majority in the first balloting. See 
Pet. App, 138a.

2. In 1986, petitioners:—describing themselves as black 
residents, of Phillips County registered to vote in general 
elections and Democratic primaries (Amended Compl. 
2-3)— filed suit in the United States District Court for 
the Eastern District of Arkansas, seeking declaratory 
and injunctive relief to prevent the operation in Phillips 
County of Ark. Stat. Ann. § 7-7-202 (1987) (party pri­
mary runoff) and § 7-5-106 (Supp, 1989) (general elec­
tion runoff). Petitioners alleged that the runoff require­
ments mandated by these statutes were adopted with a 
discriminatory purpose in violation of the Fourteenth 
and Fifteenth Amendments, and that they operated in 
Phillips County to deny black residents an equal oppor­
tunity to elect the candidates of their choice in violation 
of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 
1973.



3

Prior to trial, the district court dismissed petitioners’ 
challenge to the general election runoff requirement on 
two alternative grounds. Pet. App, 143a. First, the 
court held that petitioners lacked standing to challenge 
the statute, because they failed to demonstrate that the 
general election runoff requirement had harmed any 
black candidates. Id. at 164a; see id. at 152a, 164a-167a. 
Second, the court found that petitioners had failed to 
perfect this aspect of their suit against the proper 
parties.2 3

Following trial on the party primary issue, the district 
court addressed the so-called “Senate Report factors.” ® 
Pet. App. 83a-130a. The court found that the black pop­
ulation of Phillips County constituted “ approximately 
53 % of the total, and the voting age population of blacks 
is only marginally less than that of the whites.”  Id. at 
105a.4 The court then observed that “ there has been 
extreme racial polarization in voting in Phillips County, 
Arkansas, in, recent years,”  id. at 115a,5 and found that

2 The court held that the Phillips County Election Commission 
was an indispensible party to the challenge to Section 7-5-106, and 
that petitioners had failed properly to join the Commission, because 
of a defect in service. See Pet. App. 132a, 143a. The court also dis­
missed the Governor and Secretary of State as defendants, on the 
ground that “no claim of wrongdoing ha[d] appropriately been 
asserted against [them].” Id. at 155a. The court reasoned that if 
the defendant county committees were required by the Voting 
Rights Act to certify certain results, the Governor and Secretary of 
State would have no choice but to accept those results. Ibid.

3 These are the factors identified in the Senate Report accompany­
ing the 1982 amendment to Section 2 of the Voting Rights Act. 
S. Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982). See Thornburg 
V. Gingles, 478 U.S. 30, 44 (1986).

4 The court did not cite a figure for voting age population, but 
the undisputed evidence showed that 47 % of the voting age popula­
tion was black. See Pet. App. 21a.

5 The court based this conclusion on evidence offered by petition­
ers concerning 15 elections held in Phillips County in 1984 and 1986 
in which black candidates had unsuccessfully sought election to



4

Arkansas has had a long history of official discrimination 
that has affected the right of black citizens to register, 
vote, and otherwise participate in the democratic process. 
Id. at 114a-115a. In addition, the court found that 
black residents continued to bear the effects of discrimi­
nation in areas such as education, employment, and 
health, which “ are more devastating in Phillips County 
than in other places, because of * * * dire economic cir­
cumstances.” Id. at 119a. The court observed, however, 
that “ those effects should not hinder [blacks’ ] ability to 
participate effectively and equally in the political proc­
ess.” Ibid. The court further found that “ race has fre­
quently dominated over qualifications, and issues” in elec­
tions, id. at 125a, and that no black candidate had ever 
been elected to countywide or state legislative office from 
Phillips County. Ibid*

With regard to the state and party policies, underlying 
the primary runoff requirement, the court, concluded that 
they were “ not tenuous but, to the contrary, strong, 
laudable, reasonable, and fair to all.” Pet. App. 130a. 
Observing that “ [m]ajority rule” lies at “ the very heart 
of our political system,” the court, stated that “ it must be 
assumed” that the State had adopted the primary run­
off requirement to vindicate that legitimate purpose. Id. 
at 127a-128a. The court also expressed the conviction 
that “ the elimination of the run-off would tend to per­
petuate racial polarization and bloc-voting.” Id. at 129a. 
The court, added (ibid.) : 6

countywide office, city office, or state legislative seats within Phillips 
County. See Pet.. App. 116a-117a. Petitioners’ expert witness esti­
mated that black candidates received between 86% and 100% of the 
black votes cast in the elections for countywide office, but no more 
than 15%— and usually much less— of the white votes. Ibid.

6 The court noted that there was little evidence on the responsive­
ness of elected officials (Pet. App. 126a) or on the slating process. 
Id. at 118a. It concluded that the County has not, “ in the recent 
past, used any of the other ‘discrimination-enhancing’ voting prac­
tices mentioned [in the Senate Report].” Ibid.



5

Each party has an objective of breaking down harm­
ful divisions among its supporters. The evidence sug­
gests that plurality-win statutes or rules promote 
racial polarization and separation. Run-off provisions 
promote communication and collaboration among the 
various constituencies by which coalitions are built.

The court then dismissed petitioners’ Section 2 chal­
lenge to the operation of the majority vote requirement 
for party primaries in Phillips County.7 The court ex­
plained that “we do not have here the minimal dispari­
ties necessary to establish either whites or blacks as a 
‘minority’ of the voting age population. Those popula­
tions are for practical purposes equal.”  Pet. App. 92a. 
The court thus, ruled that “ as a matter of law, * * * the 
undisputed population figures here are not such as will 
permit the plaintiffs to challenge the primary runoff law 
of the state- of Arkansas as a violation of Section 2.”  Id. 
at 107a-108a.

Although noting that it was not adopting the view that 
“ section 2 does not apply to majority vote requirements 
when the election at issue is for a single office,” Pet. 
App. 104a-105a, the court went on to state that it had 
doubts “ that runoff requirements have any identifiable 
racially discriminatory effects” (id. at 97a), or “ in the 
factual context revealed by the evidence, could, as a mat­
ter of law, be deemed to be a device capable of making 
the political processes leading to nomination less open to 
participation by blacks than to others.”  Id. at 105a. The 
court noted that the prospects for black candidates ob­
taining the party nomination under the single primary 
system that petitioners seek were “ speculative]”  (id.

7 The court also dismissed petitioners’ constitutional claims after 
finding that petitioners’ evidence was insufficient to establish that 
the primary runoff requirement was enacted and maintained with 
a racially discriminatory purpose. Pet. App. 82a. Petitioners do 
not seek review of that dismissal.



6

at 100a), because “ once you change the rules, then a 
different dynamic obtains.” Id. at 98a.8

On the other hand, the court emphasized the importance 
of the state interests at issue. The court quoted from 
commentators’ views that eliminating majority vote re­
quirements would weaken political parties’ chances of 
nominating winning candidates, making it impossible to 
predict whether adoption of a plurality vote system would 
lead to the election of more black officials. Pet. App. 94a- 
95a, lOOa-lQla. The court further suggested that retain­
ing the majority vote requirement would probably foster 
biracial coalition-building over time, and thus could be 
expected to enhance black political influence in the long 
run. Id. at 101a-104a, 128a-129a. Finally, the court sug­
gested that invalidating majority vote requirements would 
undermine the operation of democratic systems of repre­
sentation because “Americans have traditionally been 
schooled in the notion of majority rule. * * * [A] major­
ity vote gives validation and credibility and invites ac­
ceptance; a plurality vote tends to lead to a lack of ac­
ceptance and instability.”  Id. at 81a,

The court discounted what it recognized were its “posi­
tive findings with respect to many of [the Senate Re­

8 The court explained (Pet. App. 97a-98a) :
It is one thing- for the [petitioners], Mr. and Mrs. Whitfield, 
to point out that, after their first primary elections, they would 
have been the Democratic Party’s candidates in the general 
election if they had not had to face a runoff; it is quite another 
thing to state that, had there been no runoff provisions when 
they ran in the primary, they would have been the Democratic 
candidates for the particular offices they were seeking.

The court observed that “where racial voting and racial polariza­
tion exist,” the establishment of a plurality election system “will 
result in attempts to limit the number of candidates on one’s own 
side and, at the same time, to attempt to increase the number of 
candidates on the opposition side.” The success of black or white 
candidates would therefore; turn on the “happenstance” of whether 
“ the black community can agree on one candidate * * * while the 
white community does not respond in kind and therefore ends up 
with two or more white candidates in the race.”  Id. at 98a.



7

port] factors.” Pet. App. 130a. It stated that these fac­
tors had “ no tendency to prove, or disprove” a claim that 
the Arkansas majority vote requirement for party pri­
maries “ makes the political processes not ‘equally open 
to participation’ by blacks in that blacks have ‘less op­
portunity than whites to participate in the political proc­
ess and to elect representatives of their choice.’ ”  Ibid. ; 
see also id. at 111a. In the court’s view, “ [t]he truth is 
that focusing on some of the factors serves more as a 
distraction than as a useful tool for evaluating the cause 
and effect operation of the challenged runoff laws.” Pet. 
App. 130a.

3. On appeal, a panel of the Eighth Circuit, with 
Senior District Judge Hanson concurring in the result 
and Senior Circuit Judge Bright dissenting, reversed. 
Pet. App. 3a-42a.9 In the lead opinion by Judge Beam, 
the court observed that the potential of majority vote 
rules to dilute minority voting strength was well recog­
nized in the case law. Id. at 18a-19a. The court also 
decided that the district court had erred as a matter of 
law in ruling that a Section 2 claim could not be sus­
tained where blacks made up 47% of the voting age 
population. Pet. App. 20a-21a. Finally, the court held 
that the district court failed properly to analyze the run­
off requirement “ in light of the results-oriented test ar­
ticulated in the Senate Report” accompanying the 1982

9 Senior District Judge Hanson wrote separately (Pet. App. 43a- 
46a) to express concern over the “ fragmentation of state law” that 
would result from enjoining operation of the majority vote statute 
in one county. Id. at 43a. He concluded, however, that Congress 
must have intended this “natural consequence” of its amendment to 
Section 2 of the Act. Id. at 44a-45a.

Senior Circuit Judge Bright dissented (Pet. App. 46a-57a) from 
the holding that the majority vote requirement for party primaries 
operated in Phillips County to violate the Voting Rights Act. 
Judge Bright argued that the importance of thei principle of major­
ity rule, its long history, and the absence of direct authority for 
the position adopted in the panel opinion, counseled against in­
validation of the requirement of a majority vote for party nomina­
tion. Id. at 48a.



8

amendment to Section 2. Pet. App. 23a. The court con­
cluded that petitioners’ evidence on the factors deemed 
relevant by this Court in Gingles to a finding of vote 
dilution sufficed to establish a Section 2 violation under 
the totality of the circumstances. It remanded the case 
to the district court for determination of a remedy. Id. 
at 36a-37a, 42a.10

On rehearing en banc, the court of appeals affirmed 
the judgment of the district court by an equally divided 
vote, without opinion. Pet. App. 2a.

DISCUSSION

The questions whether Section 2 challenges to majority 
vote requirements can be maintained, and how they should 
be assessed, are important to the enforcement of the Vot­
ing Rights Act by the United States. There are majority 
vote or substantial plurality requirements for state offices 
in eleven States 11 and for offices in numerous localities. 
The United States is currently challenging certain appli­
cations of the majority vote requirement under Section 2 
of the Voting Rights Act, and regularly evaluates the

10 The panel upheld the district court’s dismissal of petitioners’ 
constitutional challenges to § 7-7-202 and amendment 29 of the 
Arkansas Constitution, agreeing with the district court’s findings 
that they had not been enacted with discriminatory intent. See Pet. 
App. 13a-15a.

The court of appeals also upheld the dismissal of petitioners’ 
challenge to the majority vote statute for general elections. The 
court concluded that petitioners lacked standing. Pet. App. 38a n.4.

11 See generally Ala. Code §§ 17-16-6, 17-16-35 (Supp. 1990) ; Ark. 
Stat. Ann. §§3-110 to 3-113, 3-113(i), 3-113(c), 3-113(d) (1976); 
Ariz. Const, art. 5 § l.B (Supp. 1989) ; Fla. Stat. Ann. §§ 100.061, 
100.091 (Supp. 1990); Ga. Code Ann. § 21-2-501 (1987) ; La. Rev. 
Stat. § 18:402 (Supp. 1990), § 18:481 (1979); Miss. Code Ann. 
§ 3109 (Supp. 1989) ; N.C. Gen. Stat. § 163-111 (Supp. 1990) ; 
Okla. Stat. Ann. tit. 26, §§ 1-102, 1-103 (Supp. 1990) ; S.C. Code 
Ann. § 7-13-50 (Law. Co-op. Supp. 1989) ; Tex. Code Ann. § 13.003 
(Vernon Supp. 1990).



9

effect of such requirements in reviewing changes sub­
mitted for preclearance under Section 5, 42 U.S.C. 1973c.

These questions, however, have received limited consid­
eration by the lower courts, and, as yet, have not gen­
erated substantial disagreement among the circuits.12 In 
addition, the inability of the en banc court of appeals to 
issue an opinion in this case counsels against review by 
this Court. While we think the district court erred in its 
standing analysis, and while we do not share that court’s 
expressed reservations about the applicability of Section 2 
to the majority vote requirement at issue here, the dis­
trict court, in the final analysis, did address petitioners’ 
Section 2 claim on the merits under the totality of the 
circumstances test. That is the correct legal test; the 
question whether the district court properly applied that 
test to the facts before it— a matter as to which we have 
significant doubts— does not warrant further review in 
this Court.

We anticipate that the question of the validity under 
Section 2 of particular majority vote requirements will 
arise in future cases. Given the present lack of a circuit 
conflict, the fact that most circuits have not addressed

12 Only the Second Circuit has ruled on whether the operation of a 
party primary runoff requirement for single member offices violates 
the Voting Rights Act. In Butts v. City of New York, 779 F.2d 141 
(1985), the Second Circuit considered a challenge to a New York 
statute requiring a run-off election in the party primary for city­
wide office if no party candidate received more than 40% of the 
vote. In deciding that there was no Voting Rights violation, a 
divided panel of that court ruled that a majority vote requirement 
in a primary for candidates for single-member offices was not “ the 
kind of electoral arrangement[] that can violate the Act.” 779 F.2d 
at 148. The majority distinguished the case of “ elections for multi­
member bodies” by explaining that (ibid.)

[t]here can be no equal opportunity for representation within 
an office filled by one person. Whereas, in an election to a multi­
member body, a minority class has an opportunity to secure a 
share of representation equal to that of other classes by elect­
ing its members from districts in which it is dominant, there 
is no such thing as a “share” of a single-member office.



10

the issue at all, and the fact that the only precedential 
opinion in this case is that of the district court—-which 
applied the correct test—we believe that the issue will 
benefit from “further study” in the lower courts “before 
it is addressed by this Court,”  McCray v. New York, 
461 U.S. 961, 963 (1983) (Stevens, J.). Accordingly, 
the petition should be denied.

1. As its first alternative ground of decision, the dis­
trict court held that “ the undisputed population figures 
here are not such as will permit [petitioners] to chal­
lenge [the state law].” Pet. App. 107a-108a. Under well- 
settled precedent, the district court was wrong to hold 
that black voters were too numerous in Phillips County 
to maintain a Section 2 challenge to the majority vote 
requirement. See Pet, App. 105a. In its seminal opinion 
outlining standards for analyzing vote dilution claims, 
the Fifth Circuit sitting en banc conclusively rejected the 
analytical approach employed by the district court here. 
See Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), 
aff’d sub nom. East Carroll Parish School Bd. v. Mar­
shall, 424 U.S. 636 (1976). The Zimmer court reversed 
district court and panel rulings that an at-large voting 
system could not be said to cause vote dilution where the 
total black population was 58.7%, but blacks constituted 
a minority of registered voters. 485 F.2d at 1300-1301. 
The court in Zimmer noted that this Court upheld a find­
ing of vote dilution in White v. Regester, 412 U.S. 755 
(1973), even though the protected group in that case 
(Mexican-Americans) comprised a numerical majority in 
one of the counties at issue. 485 F.2d at 1303. Reason­
ing from this Court’s precedents, the Fifth Circuit con­
cluded that “ access to the political process and not popu­
lation [is] the barometer of dilution of minority voting 
strength.” Ibid.

In this case, the undisputed figures show that blacks 
constitute a minority— 47%— of the voting age popula­
tion. Pet. App. 6a n.l, 21a. See, e.g., City of Rome v. 
United States, 446 U.S. 156, 186 n.22 (1980) (voting age



11

population generally recognized as most appropriate in­
dicator of minority voting strength). Moreover, where 
past discrimination and adverse social conditions affect 
access to the political process, even a black voting ma­
jority might not have an equal opportunity to elect can­
didates of its choice, and it is that opportunity-—not any 
numerical test— that is the touchstone under the Act. 
See 42 U.S.C. 1973.

The district court, however, did not rest on its ruling 
that petitioners could not mount a Section 2 challenge 
because of the population figures, but instead went on to 
consider the merits of petitioners’ challenge.

2. a. The district court’s doubts about whether a ma­
jority vote requirement can ever violate Section 2 of the 
Voting Rights Act run contrary to the plain language of 
the statute, which provides without limitation that “ [n]o 
voting qualifiation or prerequisite to voting or standard, 
practice, or procedure” shall be imposed or applied in a 
manner that violates the Act. 42 U.S.C. 1973(a). As this 
Court observed in Gingles, 478 U.S. at 43, Section 2 pro­
hibits “any voting qualifications or prerequisites to voting, 
or any standards, practices, or procedures which result 
in the denial or abridgment of the right to vote of any 
citizen who is a member of a protected class of racial 
and language minorities.”  The statutory language makes 
no exception for majority vote requirements, either for 
single member offices or other types of elected positions. 
This Court has construed identical language in Section 5 
of the Voting Rights Act—which covers changes to “ any 
voting qualification or prerequisite to voting, or standard, 
practice, or procedure with respect to voting,” 42 U.S.C. 
1973c— to apply to majority vote requirements. See City 
of Rome v. United States, 446 U.S. at 184.13

13 The Attorney General, in the exercise of his preclearance re­
sponsibilities under Section 5, has frequently objected to changes 
replacing a plurality-win rule with a majority vote requirement, 
and Congress was well aware of this longstanding administrative 
interpretation when it amended Section 2 in 1982. The Attorney



12

Section 2 goes on to provide that a violation is estab­
lished if, “based on the totality of circumstances,” it can 
be demonstrated that a “ political process [] leading to 
nomination or election” operates to deprive protected mi­
norities of equal opportunity to “participate in the politi­
cal process and to elect representatives of their choice.” 
Once again, the statute does not categorically limit the 
types of “ political processes” that might be challenged as 
preventing minorities from electing “ representatives of 
their choice.” The words simply contain no exception for 
majority vote requirements.14 And there is no theoretical

General’s administrative interpretation comports with the legisla­
tive history of Section 5. In extending Section 5 of the Voting 
Rights Act to Texas in 1975, Congress focused specifically on the 
extensive use in that State of majority vote requirements, coupled 
with other dilutive election devices, to halt the growing political 
influence of Mexican-American and black voters. See, e.g., S. Rep. 
No. 295, 94th Cong., 1st Sess. 27 (1975) (describing amendment of 
city charter to replace plurality-win rule with majority run-off 
system after black almost won election, and noting extensive use of 
at-large structures with accompanying majority run-offs in largest 
Texas cities) ; H.R. Rep. No. 196, 94th Cong., 1st Sess. 18-20 
(1975) (sam e); 121 Cong. Rec. 16,251 (1975) (remarks of Rep. 
Edwards).

14 Nor does the legislative history give any indication that Con­
gress intended to provide such an exception. To the contrary, that 
history suggests that Congress regarded majority vote rules as an 
electoral device having the potential to dilute the minority vote. 
See, e.g., S. Rep. No. 417, supra, at 6 (listing “majority runoffs” as 
one of “a broad array of dilution schemes * * * * employed to cancel 
the impact of the new black vote” ) ; id. at 10 (frequency of Section 
5 objections to majority vote requirements “ reflects the fact that
* * * covered jurisdictions have substantially moved * * * to more 
sophisticated devices that dilute minority voting strength” ) ; id. 
at 22, 29, 30 (listing the presence of a majority vote requirement 
as a factor to be considered under the totality of the circumstances 
test in light of its potential to enhance discrimination) ; id. at 30 
(although prior case law dealt with “ electoral system features such 
as at-large elections, majority vote requirements and districting 
plans * * * Section 2 remains the major statutory prohibition of all 
voting rights discrimination” ) . See also H.R. Rep. No. 227, 97th



13

or empirical reason why a majority vote requirement can­
not operate-—under certain circumstances— to afford a 
protected class less opportunity to participate in the elec­
toral process or to elect its chosen candidate.

Nothing in this Court’s decisions precludes a finding 
that a majority vote rule, under the totality of the cir­
cumstances, may operate to dilute the vote of a protected 
class in violation of Section 2. In White v. Regester, 
supra— a case considering the constitutionality of a mul­
timember districting scheme that the district court found 
was used invidiously to dilute minority voting strength 
— this Court found “no reason to disturb” a district 
court’s findings that a majority vote prerequisite to nom­
ination in primary elections “ enhanced the opportunity 
for racial discrimination.”  412 U.S. at 766. In City of 
Port Arthur v. United States, 459 U.S. 159 (1982), in 
considering a Section 5 challenge to the expansion of the 
City’s borders that resulted in decreased minority voting 
strength, the Court upheld the district court’s elimina­
tion of the majority vote requirement for certain at-large 
positions on the city council. The Court observed that 
“ [i]n the context of racial bloc voting prevalent in 
[the municipality], the [majority vote] rule would 
permanently foreclose a black candidate from being 
elected to an at-large seat. Removal of this require­
ment, on the other hand, might enhance the chances 
of blacks to be elected to the two at-large seats.” Id. at 
167-168. Finally, in City of Rome v. United States, 
supra— another Section 5 case— the Court acknowledged 
that a general election majority vote requirement, in 
combination with extreme racial bloc voting, “ signifi­
cantly decreased the opportunity for * * * a Negro can­
didate since, ‘even if he gained a plurality of votes in the 
general election, [he] would still have to face the runner- 
up white candidate in a head-to-head runoff election in 
which, given bloc voting by race and a white majority,

Cong., 1st Sess. 18 (1981) (potentially discriminatory elements of 
election process include “majority vote run-off requirements” ).



14
[he] would be at a severe disadvantage.’ ”  446 U.S. at 
184 (quoting 472 F. Supp. 221, 244 (D.D.C. 1979)). All 
of these statements belie the district court’s suggestion 
that a majority vote requirement is not an electoral ar­
rangement that can result in minority vote dilution in 
violation of the Act.

b. In Thornburg v. Gingles, 478 U.S. at 46-47 n.12, 
this Court established an analytic framework for deter­
mining whether a particular voting practice can operate 
to deprive a protected class of rights under Section 2. 
While the Court took care to note that it was not decid­
ing whether the standards developed in that case for 
assessing whether multimember districts violated Sec­
tion 2 applied to; challenges to other electoral arrange­
ments, we believe that those standards are applicable in 
the present context.

According to Gingles, the challenged practice generally 
must satisfy three “ necessary preconditions.”  478 U.S. 
at 48-51. Petitioners have plainly satisfied two of the 
Gingles preconditions.—proof of polarized voting, includ­
ing substantial minority cohesion, and white bloc voting 
against minority-preferred candidates denying electoral 
success to those candidates. See id. at 48-49 n.15, 51. 
The level of political cohesiveness among black voters in 
countywide elections in Phillips County is at least as 
high as that which this Court described as “ overwhelm­
ing” in Gingles, id. at 59. Likewise, the degree of white 
bloc voting against minority candidates in elections for 
countywide office is significantly greater than that ob­
served in Gingles, compare id. at 80-81 with Pet. App. 
116a-117a, and is sufficient to result consistently in the 
defeat of black candidates for nomination under the run­
off system. In addition, black candidates have never won 
party nomination to countywide office. Black voters, al­
though constituting 47% of the voting age population, 
have so far been unable to elect the candidates of their 
choice.

To satisfy the remaining Gingles precondition, plain­
tiffs must establish that minority voters would have an



15

enhanced “potential to elect representatives in the ab­
sence of the challenged structure or practice.” 478 U.S. 
at 50 n.17. To challenge a majority vote requirement for 
party primaries, however, plaintiffs need not show a 
potential to elect; they need only show the potential to 
nominate candidates of their choice in a system that does 
not employ such a rule. The statutory language ex­
plicitly provides that a violation is established if, inter 
alia, “ the political processes leading to nomination * * * 
are not equally open to participation by members of a 
class of citizens protected by”  the Act. 42 U.S.C. 
1973(b) (emphasis added). Thus, in order to show an 
injury capable of redress under the Act, plaintiffs must 
establish only that success is possible at the stage of the 
political process under challenge.15

The Court in Gingles, 478 U.S. at 50 & n.17, also indi­
cated that the potential for success may be established 
in theory; it is not necessary to demonstrate, for exam­
ple, that particular minority-supported candidates would 
have won specific past elections if the challenged prac­
tice had not been in place, nor that minority-supported 
candidates are sure to win in the future. Although peti­
tioners in this case cannot prove that candidates sup­
ported by black voters are certain to do better under a 
plurality-win nomination system, they can demonstrate 
that, even at the extreme levels of racial bloc voting in 
Phillips County, those candidates have at least the poten­
tial to gain nomination if the majority vote requirement 
is abolished. For example, because blacks constitute more 
than one-third of the voting age population, a minority 
supported candidate might be able to win the nomination 
if two non-minority-backed candidates run against the

15 In dismissing petitioners’ claim with regard to the nomination 
process, the district court therefore erred to- the extent that it 
relied on petitioners’ failure to establish that minority-backed candi­
dates could win the general election if they succeeded in gaining 
nomination in the primaries. See Pet. App. 94a-95a, lOOa-lOla.



16

minority’s candidate; the same would not be true if a 
runoff took place.

The district court therefore erred in concluding that 
petitioners’ claims of redressable injury were too specu­
lative because candidates supported by non-minorities 
might refrain from running against each other to mini­
mize minority success under a plurality-win system. 
This reasoning is contrary to the approach in Gingles, 
which does not require petitioners to show that they will 
succeed in winning nomination under every possible 
scenario. Rather, the relevant question is whether, if the 
challenged practice is eliminated, it is possible for mi­
nority supported candidates to succeed.

c. After the three-part threshold test is satisfied, the 
Gingles framework calls for an assessment under the 
‘“ totality of the circumstances” of the effect of the prac­
tice in a particular locale on the opportunity of protected 
groups to “participate in the political process and to 
elect representatives of their choice.” This assessment is 
based on a consideration of all relevant factors appro­
priately tailored to take into account the nature of the 
challenged practice. In considering the effect of these 
factors on minority voting strength, the court must en­
gage in a “ searching practical evaluation of the ‘past and 
present reality,’ ” Gingles, 478 U.S. at 45 (quoting S. 
Rep. No. 417, supra, at 30).

The district court, “ assuming Section 2 would apply to 
runoffs” under the circumstances before it, concluded 
that “ the proof does not sustain [petitioners’ ] contention 
that the challenged provisions result in [petitioners] and 
other blacks having less opportunity to participate in the 
political process or to elect candidates of their choice.” 
Pet. App. 131a. The court ruled that petitioners “have 
not proved or demonstrated by the evidence that [the 
majority vote] provision, based on the totality of the cir­
cumstances revealed by the evidence in this case, has had, 
or has, the effect of discriminating against blacks or that 
there is any causal connection between the lack of black



17

electoral success and the challenged runoff procedure.” 
Id. at 108a.

We have serious doubts that the district court cor­
rectly applied the totality of the circumstances test. For 
example, the district court seemed to ascribe nearly con­
trolling weight to the “underlying policy” factor under 
the totality of the circumstances. Cf. Gingles, 478 U.S. 
at 45. The district court characterized the “majority 
win” principle as a fundamental tenet of democratic sys­
tems, and suggested that departure from that principle 
invites “ lack of acceptance and instability.”  See Pet. 
App. 80a-81a; see also id. at 48a. (court of appeals opin­
ion of Bright, J., dissenting in part) ; Butts, 779 F.2d at 
149. Majority vote requirements at the nomination stage 
have also been justified as a means to avoid the “ fluke” 
election of candidates far from the political mainstream, 
see id. at 143, or as a way for political parties to maxi­
mize the appeal of their nominee to the general elec­
torate. See Pet. App. IGOa-lOla.

A majority vote rule at the party primary level may 
well be advantageous to the party and tend to promote 
stability in the democratic process. However, the dis­
trict court’s characterization of the majority vote re­
quirement as a fundamental democratic tenet is over­
drawn in this context. Plurality-win primaries for state 
and local offices are widespread, and represent the pre­
dominant system in state governments nationwide. The 
common and longstanding use of this arrangement ne­
gates the premise that a majority vote rule at the pri­
mary stage is an indispensable component of our demo­
cratic system.16

Thus, while we fully agree that legitimate reasons 
exist for adopting a majority vote system— either at the 
primary or the general election phase— and that those

16 Cf. S. Rep. No. 417, supra, at 29 n.117 ( “even a consistently 
applied practice premised on a racially neutral policy would not 
negate a plaintiff’s showing through other factors that the chal­
lenged practice denies minorities fair access to the process” ).



18

reasons should be properly weighed under the totality of 
the circumstances, those reasons do not trump all other 
factors or combination of circumstances to render the 
practice automatically valid under Section 2. The use of 
multimember districts, for example, may advance legiti­
mate goals, see, e.g., Zimmer v. McKeithen, 485 F.2d at 
1301 (at-large scheme insures fidelity to one-person, one- 
vote principle), but multimember districts may nonethe­
less operate to violate Section 2. There is no reason for 
a different approach to the majority vote rule: the statu­
tory language and legislative history of Section 2 make 
clear that Congress did not intend to provide an exemp­
tion for majority vote requirements simply because good 
things could be said for them.

At the same time it was according nearly controlling 
weight to the sound policies underlying the challenged 
practice, the district court minimized the significance of 
what it acknowledged were “ positive findings with re­
spect to many of [the Senate Report] factors.” Pet. 
App. 130a. The court should not have so readily dis­
missed its findings that “race has frequently dominated 
over qualifications and issues” in elections (id. at 125a), 
that there is a long history of official discrimination in 
voting (id. at 114a-115a), that Phillips County is char­
acterized by extreme racial bloc voting (id. at 116a-117a), 
and that black residents of Phillips County suffer from 
a legacy of racial discrimination. Id. at 119a, 123a. 
Rather, all those factors should have been considered—  
together with the policy underlying the challenged law—  
in a more “ searching practical evaluation” of the sort 
mandated by this Court in Gingles. 478 U.S. at 45.

3. The district court dismissed petitioners’ challenge 
to the general election majority vote requirement on two 
alternative grounds: failure to join an indispensable
party, and lack of standing or ripeness. Although peti­
tioners seek review of the first ground (see Pet. i i ) , it is



19

plainly fact-specific:—relating to a defect in service of 
process (Pet. App. 143a-144a)— and does not warrant 
review by this Court. Petitioners do not include a “ques­
tion presented” on the second ground, the standing or 
ripeness issue. See Sup. Ct. R. 14.1(a).11 This is a fur­
ther reason to deny review, since the two grounds are 
alternative bases for the district court’s decision.18

17 Petitioners state in a footnote to the text of their petition that 
this “ alternative ground for dismissal * * * squarely conflicts with 
congressional intent, Gingles and decisions of other circuits.”  Pet. 
48 n.20.

18 In our view, the district court erred in dismissing petitioners’ 
challenge to the general election majority vote requirement for lack 
of standing or “ ripeness.” Pet. App. 143a, 163a-167a. Petitioners 
have standing as black citizens who reside in Phillips County and 
are registered to vote in general elections. See Amended Compl. 
2-3; see also Pet. App. 161a-162a. Therefore, the fact that there 
were no minority candidates who would have won in the absence of 
a majority vote requirement is not an automatic bar to standing. 
See, e.g., Gingles, 478 U.S. at 57 n.25 (recognizing that minority 
group may “have never been able to sponsor a candidate” ) ; West- 
wego Citizens for Better Gov’t v. Westwego, 872 F.2d 1201, 1208- 
1209 (5th Cir. 1989) (plaintiffs not precluded from challenging 
elections for office where no black candidate had run).



20

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

Respectfully submitted.

K enn eth  W. Starr 
Solicitor General

John  R. D unne  
Assistant Attorney General

John  G. R oberts, Jr .
Deputy Solicitor General

R oger Clegg
Deputy Assistant Attorney General 

A m y  L. W ax
Assistant to the Solicitor General

Jessica D unsay Silver 
Susan  D. Carle 

Attorneys
F ebruary 1991

U . S .  GOVERNMENT PRINTING OFFICE; 1 9 9 2 8 2 0 6 2 0 3 5 3