Clinton v. Jeffers Motion to Affirm

    No. 89-2008

In The

Supreme Court of tfjc Mntteb states
October Term, 1990

Bill Clinton, Governor of Arkansas, et al.,
Appellants,

v.

M.C. Jeffers, et al.

On Appeal from the United States D istrict Court 
for the Eastern District of Arkansas

MOTION TO AFFIRM

P.A. Hollingworth 
415 Main Street 
Little Rock, Arkansas 72201 
(501) 374-3420

Olly Neal
33 North Poplar Street 
Marianna, Arkansas 72360 
(501) 295-2578

Don E. Glover 
P.O. Box 219 
Dermott, Arkansas 71638 
(501) 538-9071

L. T. Simes 
P.O. Box 2870 
West Helena, Arkansas 72390 
(501) 572-3796

Penda D. Hair*
Sheila Y. Thomas 

1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Julius LeVonne Chambers 
Charles Stephen Ralston 
Norman J. Chachkin 
Dayna L. Cunningham 
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

*Counsel o f Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



QUESTION PRESENTED

The only question which properly arises on this 

appeal is: did the court below err in applying well-settled 

principles announced by this Court in Thornburg v. 

Gingles, 478 U .S. 30 (1986), and other decisions to the 

particular facts which it found, on the basis of 

overwhelming evidence, to exist and to limit the 

opportunities of black citizens to participate in the political 

process and to elect representatives o f their choice in a 

number o f Arkansas legislative districts under the State’s 

1981 districting plan?

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TABLE OF CONTENTS
Question Presented ..................  i

Table of Authorities ................  iii
Facts ...........    1

REASONS FOR SUMMARY AFFIRMANCE ......  5

A. The Judgment Is Supported
by Unimpeachable Findings on 
the Relevant Factors Identified 
in Thornburg and a Fully Supported 
Conclusion, Based on the Totality 
of the Circumstances, that 
Black Citizens' Opportunity to 
Participate in the Political 
Process and to Elect 
Representatives of Their 
Choice Was Limited and Denied
by the 1981 General Assembly 
Districting P l a n .................  7

B. The Legal Issues Sought to be 
Raised by Appellants Do Not 
Merit Plenary Review in 
this Case ........................  22

CONCLUSION ........................... 3 3

ii -



TABLE OF AUTHORITIES
CASES PAGE
Beer v. United States, 425 U.S.

130 (1976) ..................  26
City of Richmond v. United States,

422 U.S. 358 (1975)   26

Costello v. United States, 365
U.S. 265 (1961)    28

Czaplicki v. The S.S. Hoegh 
Silvercloud, 351 U.S. 525 
(1956)   28

Gardner v. Panama Railroad Company,
342 U.S. 29 (1951)     28

Gingles v. Edmisten, 590 F. Supp.
345 (1984), aff'd, 478 U.S. 30
(1986) ......................  10, 23

Ketchum v. Byrne, 740 F.2d 1398 
(7th Cir. 1984), cert, denied,
471 U.S. 1135 (1985)   23

Lewellen v. Raff, 649 F. Supp. 1229 
(E.D. Ark. 1986), aff'd, 843 F.2d 
1103, opinion modified, 851 F.2d 
1108 (8th Cir. 1988), cert, denied,
109 S. Ct. 1171 (1989) .....  15

Major v. Treen, 574 F. Supp. 325
(E.D. La. 1983) ............. 23

Mississippi Republican Executive 
Committee v. Brooks, 469 U.S.
1002 (1984), aff'g Jordan v.
Winter, 604 F. Supp. 807 (N.D.
Miss. 1984) .................  6, 23

iii



CASES (Continued) PAGE
Neil v. Coleburn, 689 F. Supp.

1426 (E.D. Va. 1988) .......  23

Smith v. Clinton, 687 F. Supp. 1310 
(E.D. Ark.), aff'd, 109 S. Ct.
548 (1988) .................3, 5, 6, 18

Thornburg v. Gingles, 478 U.S.
30 (1986) ...................  passim

United Jewish Organizations v.
Carey, 430 U.S. 144 (1977) .. 25

White v. Regester, 412 U.S. 755
(1973) ......................  26

STATUTES
Voting Rights Act of 1965, as amended,

42 U.S.C. § 1973 et seq....  passim

MISCELLANEOUS
S. Rep. No. 417, 97th Cong., 2d Sess.

(1982)     27
Motion to Dismiss or Affirm,

Mississippi Republican 
Executive Committee v. Brooks,
No. 83-1722 .................  6

Petition for Certiorari, City of
Norfolk V. Collins, No. 89-989 5

Petition for Certiorari, Sanchez
V. Bond, No. 89-353 ......  5

Sup. Ct. Rule 18.6 ............ 1

i v  -



In the
SUPREME COURT OF THE UNITED STATES 

October Term, 1990

No. 89-2008

BILL CLINTON, GOVERNOR OF ARKANSAS, et al.,
Appellants,

v.

M.C. JEFFERS, et al.

On Appeal from the United States District 
Court for the Eastern District o f Arkansas

MOTION TO AFFIRM

Appellees move pursuant to Sup. Ct. Rule 18.6 to 

affirm the judgment below on the ground that the questions 

presented in the Jurisdictional Statement are so insubstantial 

on this record as not to require further argument.

Facts

Following the 1980 Census, new districts for the 

Arkansas General Assembly were drawn in 1981 by the 

State Board o f Apportionment (then Governor Frank White,



Attorney General Steve Clark and Secretary o f State Paul 

Riviere). Both House and Senate districts crossed political 

subdivision boundaries.1 Although black citizens 

constituted 16% of Arkansas’ voting-age population (VAP), 

and were highly concentrated in the eastern and southern 

parts o f the State,2 the 1981 districting plan resulted in

‘The 1981 House districting plan split 46 counties, ten 
townships and at least three municipalities among two or 
more districts, while the 1981 Senate plan split 27 counties, 
seven townships and at least two municipalities. PX 15. 
Several counties were carved up into four or five pieces, 
each o f which formed a part o f a separate district. Id. At 
least one city, Pine Bluff, was split to protect a white 
incumbent even though this configuration was not required 
to satisfy the one-person, one-vote principle. J.S. App. 34. 
One eastern Arkansas district included territory on both 
sides of the Arkansas River (with no bridge), forcing 
"citizens north o f the river to drive more than 90 miles to 
reach the largest city in their district, where their state 
representative lives," J.S. App. 35.

2Since Reconstruction, no black has been elected to the 
General Assembly from eastern Arkansas, and only one 
district in southern Arkansas (majority-black) has elected a 
black representative.

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legislative districts with a majority-black VAP only in 

Little Rock (in the center o f the State) and Pine Bluff.3

Appellees brought this suit challenging the 1981 

legislative district lines in these areas o f the State4 as 

violative o f § 2 o f the Voting Rights Act.5 Following a 

twelve-day trial, the District Court made extensive findings

3Of the total 35 Senate and 100 House districts, one 
Senate district and a three-seat House district in Little 
Rock, and one House district in Pine Bluff, had majority- 
black VAPs.

4A s to Little Rock, appellees claimed that four single- 
member, majority-black VAP House districts could have 
been drawn in place o f the three-member district. The 
remaining claims concerned single-member districts in 
eastern and southern Arkansas. (A multi-member House 
district in eastern Arkansas had previously been invalidated 
under § 2 o f the Voting Rights Act, Smith v. Clinton, 687 
F. Supp. 1310, opinion on remedy, 687 F. Supp. 1361 
(E.D. Ark.), aff’d, 109 S. Ct. 548 (1988).)

5Appellees also claimed that intentional discrimination 
in drawing the 1981 plan and numerous other Fifteenth 
Amendment violations by State and local officials justified 
placing Arkansas under pre-clearance procedures pursuant 
to § 3(c) o f the Voting Rights Act, 42 U .S.C . § 1973a(c) 
(1981). In a separate, unreported opinion and order 
entered May 24, 1990, the District Court granted partial 
relief on this claim. A Notice o f Appeal from this decision 
was filed on June 13, 1990.

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on each o f the factors identified by this Court in Thornburg 

v. Gingles, 478 U .S. 30 (1986), concluding that violations 

of § 2 had been proved as to the eastern and southern 

Arkansas legislative districts. J.S. App. 35-36, 39. The 

Court gave the current Board o f Apportionment an 

opportunity to submit a remedial districting plan, which the 

Court accepted in part and modified in part to assure that 

black citizens whose rights had been violated would have 

an adequate opportunity to participate in the political 

process and to elect representatives o f their choice in the 

1990 legislative contest.6 Under the remedy plan, the 

number o f majority-black districts increased from one to 

three in the Senate and from five to twelve in the House.

6The next General Assembly elections in Arkansas will 
be subject to a new redistricting plan to be devised when 
the results o f the 1990 Census are available.

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REASONS FOR SUMMARY AFFIRMANCE

Summary affirmance is appropriate in this case 

because the court below simply applied settled legal 

principles to the facts which it found based on ample 

evidence presented at trial. No substantial legal questions 

meriting plenary consideration are raised by appellants.7 

Indeed, both before and after its seminal interpretation of 

§ 2 in Thornburg, the Court summarily affirmed two § 2 

cases on facts very similar to those proved below.

In Smith v. Clinton, 109 S. Ct. 548 (1988), aff'g 

687 F. Supp. 1310 (E.D. Ark. 1988), an eastern Arkansas 

multi-member House district was invalidated under § 2 

based on findings nearly identical to those made below,

7This case does not present the issues raised in the 
pending Petitions for Certiorari in Sanchez v. Bond, No. 
89-353, and City o f Norfolk v. Collins, No. 89-989, 
concerning the impact on § 2 claims o f minority voter 
support for white candidates. Here, as in Thornburg, no 
statistical evidence was introduced concerning voting 
patterns in elections where there was no black candidate, 
and the evidence o f racial bloc voting in elections where 
there was a black candidate was overwhelming.

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except that "the record made in this case is much fuller 

than the one made in Smith” and thus the findings are more 

detailed, J.S. App. 25. In Mississippi Republican 

Executive Committee v. Brooks, 469 U .S. 1002 (1984), 

affig Jordan v. Winter, 604 F. Supp. 807 (N .D . Miss. 

1984), a single-member congressional district was held to 

violate § 2 because "it combined the majority black Delta 

area with six predominantly-white eastern counties to create 

a district which was majority white in voting age 

population." Brooks, No. 83-1722, Motion to Affirm 4-5. 

As we demonstrate briefly below, the judgment in this 

action should also be summarily affirmed because it 

correctly applies the statute and the teaching o f the decision 

in Thornburg.

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A. T he Judgm ent Is Supported  by 
Unimpeachable Findings on the Relevant 
Factors Identified in Thornburg and a Fully 
Supported Conclusion, Based on the Totality 
of the Circumstances, that Black Citizens’ 
Opportunity to Participate in the Political 
Process and to Elect Representatives of Their 
Choice Was Limited and Denied by the 1981 
General Assembly Districting Plan,_________

In its opinion, the court below articulated the

applicable standards for evaluating a claim that § 2 of the

Voting Rights Act was violated by legislative districting:

Dilution may be much more obvious in a 
case like Smith where a potential majority of 
black voters was submerged in a two- 
member district. But the basic principle is 
the same. If lines are drawn that limit the 
number of majority-black single-member 
districts, and reasonably compact and 
contiguous majority-black districts could 
have been drawn, and if racial cohesiveness 
in voting is so great that, as a practical 
matter, black voters’ preferences for black 
candidates are frustrated by this system of 
apportionment, the outlines o f a Section 2 
theory are made out. Whether such a claim 
will succeed depends on the particular factual 
context, including all of the factors that 
Thornburg, Smith, and the legislative history 
of Section 2 say are relevant.

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J.S. App. 16. The trial court carefully applied § 2 to the 

"particular facts" and made well-supported determinations 

on each of the relevant factors.

1. Size and geographic compactness o f  
the minority group. (478 U .S. at 50 
and n.17)

The District Court found that "black communities in 

the areas o f the State challenged by plaintiffs are 

sufficiently large and geographically compact to constitute 

a majority in single-member districts." J.S. App. 17. 

Appellees had presented evidence that, using the data 

available in 1981, two additional, majority-black VAP 

Senate districts, and seven additional, majority-black VAP 

House districts could readily have been created.8 *

*These "alternative districts" were presented not as 
proposed remedies but to establish, as Thornburg requires, 
that the black population was sufficiently large and 
geographically compact to constitute majorities in single­
member districts. In fact, the remedy ultimately adopted 
by the court below differed significantly from the 
"alternative districts" configuration presented at the liability 
hearing. As was true o f the challenged 1981 plan, each 
"alternative district" presented by the appellees included

(continued...)

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Appellants’ principal complaint about the compactness 

finding is that some o f the appellees’ exemplary majority- 

black VAP districts would have required the splitting of 

municipalities among legislative districts; however, the 

court below found that the 1981 plan followed no 

consistent policy o f maintaining political subdivision 

boundaries, and that counties, cities and townships were all 

divided by the Apportionment Board to accomplish various 

goals, ranging from compliance with one-person, one-vote 

requirements to the protection o f incumbents, J.S. App.

34. The alternative districts in Thornburg split counties, 8

8(... continued)
portions of one to four Arkansas counties.

Although the District Court referred to 16 
"alternative districts," e.g., J.S. App. 17, this number 
includes the majority-black VAP districts that already 
existed at the time of trial (one Senate district and four 
House districts created under the 1981 plan and the House 
district established as part o f the remedy in Smith v. 
Clinton), as well as the additional House district in Little 
Rock sought by appellees. Thus, in eastern and southern 
Arkansas (the areas in contention on this appeal) a total of 
nine, new, majority-black VAP "alternative districts" were 
presented.

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and the District Court’s reasoning there is equally 

applicable to the splitting o f a few municipalities here: 

"To the extent that the policy ... was to split counties when 

necessary to meet population deviation requirements or to 

obtain § 5 preclearance o f particular districts ... such a 

policy obviously could not be drawn upon to justify, under 

a fairness test, districting which results in racial vote 

dilution." Gingles v. Edmisten, 590 F. Supp. 345, 355 

(E .D.N.C. 1984), aff’d in part and rev’d in part on other 

grounds sub nom. Thornburg v. Gingles, 478 U .S. 30 

(1986).9

2. Racially polarized voting. (478 U .S. 
at 52-58)

The District Court had "little difficulty in finding 

that voting patterns [throughout the districts challenged by 

appellees] are highly racially polarized." J.S. App. 20.

“The dissent below agreed that the 1981 district lines 
diluted black voting strength in at least three districts. See 
J.S. App. 156 (Phillips County), 156-160 (Ashley, Desha 
and Chicot counties), 164 (Jefferson County).

- 10 -



This finding was based on overwhelming evidence, both 

statistical and narrative, concerning elections in the areas 

covered by the challenged or ''alternative" districts.10

10Dr. Richard Engstrom, an expert witness whose work 
was cited with approval in Thornburg, 478 U.S. at 46, 48, 
53, 55, analyzed every election since 1978 in which a 
black candidate ran for the General Assembly; he also 
examined racial voting patterns in 36 separate contests 
since 1976 (constituting all of the countywide election 
contests between a black and white candidate for which 
data were available in the relevant counties); and he studied 
two Congressional races and the Jesse Jackson presidential 
primary results in eleven Arkansas counties. He subjected 
each set of election returns to the standard methods of 
bivariate ecological regression and homogeneous precinct 
analysis employed in Thornburg, 478 U.S. at 52 & n.20, 
53. Regardless of the method used, the results consistently 
revealed a "pronounced and persistent" pattern o f racially 
polarized voting "across counties, across candidates, and 
across time." PX 3, at 2 [Engstrom written report].

Appellees also presented narrative testimony about 
racial polarization in election contests from the areas of the 
State in which districts were challenged. See, e.g., TR Oct. 
2, 1989 (afternoon) 5, 6-7, 8 (Sam Whitfield), III 141- 
142, 144, 145, 146, 167 (Lonnie Middlebrook), Oct. 2, 
1989 (morning) 66-68, 70-75, 77, 79-85 (Robert White), 
III 33, 57, 61-62 (Roy Lewellan), IV 184-187, 189 (Jean 
Edwards), IV 88-89, 97-98, 103 (Andrew Willis). Two 
white legislators who testified for the defendants admitted 
that voting was racially polarized in their districts. TR X 
49, 146.

(continued...)

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Appellants assert that plaintiffs did not prove political 

cohesion among black voters in the hypothetical 

"alternative districts" because these were districts "in 

which the voters had never voted together before on state 

legislative races," J.S. 18. Since these were by necessity 

hypothetical districts, plaintiffs proved political cohesion in 

the only way possible — by establishing the existence of 10

10( . . .continued)

The dissenting opinion below concluded that blacks 
are politically cohesive in seven districts. J.S. App. 147, 
151, 155, 158. The dissent also concluded that plaintiffs 
proved legally significant racially polarized voting in 
Crittenden, Phillips, Monroe, Chicot, Desha, Lee, 
Jefferson and Ouachita counties, counties which include a 
substantial part o f each o f the alternative districts. J.S. 
App. 150, 151-152, 155, 157, 161-162, 163, 168. The 
dissent incorrectly reports that plaintiffs introduced no 
evidence o f racially polarized voting in Mississippi, St. 
Francis, Ashley and Lincoln counties. J.S. App. 150, 162, 
167, 157. For St. Francis County evidence, see TR III 
179-80, 185-186 (blacks receive 90-97% of vote in black 
wards and 1% in white wards), 188, 189 (only 1 white 
leader in county has ever publicly supported a black 
candidate), IV 154, 155, 162. For Mississippi County, 
see TR in  141-142, 144, 145, 150, 167. For Ashley 
County, see TR V 100-102. For Lincoln County, see PX3 
(Engstrom report) at 12.

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severe racially polarized voting in the component counties

and showing that this racial polarization crossed county

lines in state legislative elections and the 1988 presidential

primary.11 As the Court recognized in Thornburg,

Where a minority group has never been able 
to sponsor a candidate, courts must rely on 
other factors that tend to prove unequal 
access to the electoral process. Similarly, 
where a minority group has begun to sponsor 
candidates just recently, the fact that 
statistics from only one or a few elections 
are available for examination does not 
foreclose a vote dilution claim.

478 U .S. at 57 n .25.12 The record in this case is replete

“Voting patterns in the 1988 presidential primary 
clearly establish that black voters in Arkansas are cohesive 
across county lines. In the 11 counties for which data was 
available, the percentage of the black vote for Rev. Jackson 
ranged from 81.5 to 97%. PX 3, at 12 (single regression 
analysis).

12Appellants complain that appellees "could find only 
ten races for legislative seats in which black candidates ran 
against white candidates" and claim that it was improper 
for the District Court to rely on exogenous [non-legislative] 
elections." J.S. at 18-19. In a situation where the District 
Court explicitly found that black candidates for the 
legislature were subjected to retaliation and did not run 
because they knew the effort would be futile, J.S. App. 26-

(continued...)

- 13 -



with evidence o f "other factors" that support the District 

Court’s finding that racially polarized voting exists in each 

of the challenged districts.13

12(... continued)
27, 31, the Court’s reliance on countywide data and 
narrative testimony is clearly appropriate.

The dissent below contends that appellees were 
required to demonstrate that the 1981 district lines split 
politically cohesive groups of black voters who had been in 
the same district under the 1971 districting plan for the 
General Assembly. J.S. App. 93-94. Such a requirement 
would transform the § 2 "results" test into the 
"retrogression" standard under § 5 o f the Voting Rights 
Act. The fact that a state has always fractured
geographically compact groups of black voters does not 
insulate a districting plan from challenge under § 2.

13The District Court found that ”[t]o this day, [in 
southern and eastern Arkansas] the races live separately,
. . . they go to church separately, and they even die 
separately. . . . [A]s late as October 2 o f [1989], the City 
of Marianna was maintaining, at public expense, a 
cemetery for whites only." J.S. App. 30. Governor 
Clinton, one of the appellants, stated in 1986 that ”[t]here 
is no question in my mind that those counties have been 
held back by the dominance o f what I call the old 
plantation attitudes over there about what the proper place 
o f blacks is and what the proper place o f whites is." PX 
30gg at 3, TR VII 103. Governor Clinton also stated that 
campaign events in which he participated were segregated 
by race until at least 1986. PX 30gg at 3, TR VII 103- 
104.

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3. History o f discrimination and present 
effects o f discrimination. (478 U.S. 
at 44-45)

"[TJhere is a long history o f official discrimination. 

It has a present effect. And some instances o f it are still 

occurring." J.S. App. 27. These findings were based on 

extensive evidence presented at trial which showed recent 

and continuing barriers to black political participation in 

the areas o f the State where General Assembly districts 

were challenged.14

14For example, the court below found, based on that 
evidence, that:

Polling places have been moved on short 
notice; deputy voting registrars have, with 
isolated exceptions, been appointed only as a 
result o f litigation; efforts have been made to 
intimidate black candidates. . . . [Tjhese and 
similar practices clearly result in 
discouraging black participation in elections.

J.S. App. 26. The court also found that black candidates 
had suffered violence, harassment, intimidation and 
criminal prosecution on false charges. Id. "This kind of 
intimidation no doubt had a powerful chilling effect." Id. 
at 27. See Lewellen v. Raff, 649 F. Supp. 1229 (E.D. 
Ark. 1986)(injunction against criminal prosecution

(continued...)

- 15 -



4. Racial appeals in political campaigns. (478 
U.S. at 45).

The District Court found: "Racial appeals, some

quite offensive, are common in campaigns in which a white 

candidate is running against a black candidate." J.S. App. 14

14(... continued)
commenced in retaliation for decision o f black attorney in 
eastern Arkansas to run for office), aff'd, 843 F.2d 1103, 
opinion modified, 851 F.2d 1108 (8th Cir. 1988), cert, 
denied, 109 S. Ct. 1171 (1989).

The District Court also found that "the history of 
discrimination has adversely affected opportunities for 
black citizens in health, education and employment. The 
hangover from this history necessarily inhibits full 
participation in the political process." J.S. App. 14. 
"Many more whites than blacks are high-school graduates, 
and many blacks were educated in schools that were both 
separate (by compulsion o f law) and unequal. . . . 
[P]overty among blacks is more nearly the rule than the 
exception. Blacks tend to have fewer telephones and fewer 
cars. If a person has no phone, cannot read, and does not 
own a car, the ability to do almost everything in the 
modem world, including vote, is severely curtailed." Id. 
at 27. See also id. at 28 (county-by-county chart showing 
socio-economic status o f blacks and whites in areas of 
education, income, families living in poverty and 
availability o f telephones and vehicles).

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29 .15 Appellants do not challenge the lower court’s finding 

o f fact on this subject.

5. The extent to which blacks have been 
elected. (478 U .S. at 45)

The District Court found that black candidates were 

successful only in those few legislative districts that had a

15In 1975, for example, a supporter of a white 
candidate for Mayor of Pine Bluff publicly warned that "if 
white voters didn’t turn out, there would be a black 
mayor." J.S. App. 30. In a black candidate’s campaign 
for County Judge in Desha County, the white incumbent 
used "profanity and a racial epithet" at a public rally. Id.

The dissenting opinion below expresses "supris[e] at 
how little evidence o f overt or subtle racial appeals 
plaintiffs were able to produce." J.S. App. 135. In fact, 
plaintiffs introduced evidence of numerous racial appeals 
made by white candidates and their authorized 
representatives. See TR III 62-63 (white candidate for 
state legislature in Lee, Phillips and Monroe counties in 
1986 stated to whites "you know he’s black," about 
opponent as part of campaign strategy), IV 150-52 (in 1986 
white candidate for mayor o f Forrest City (St. Francis 
County) mailed out leaflet to white neighborhoods featuring 
picture o f black opponent), V 98-99 (campaign worker for 
white candidate for legislature in Jefferson County in 1982 
made telephone calls to voters in white neighborhoods 
stating that opponent was black), V 94-95 (in 1978 state 
representative election in Jefferson County, white 
incumbent ran newspaper advertisement with a photograph 
of his black opponent).

- 17 -



black voting majority. J.S. App. 31. Until the decision in 

Smith v. Clinton, no black had been elected to the General 

Assembly from the Arkansas Delta region.16 No black 

candidate (at least since Reconstruction) had ever won a 

statewide election or a countywide election in any of 

Arkansas’ 75 counties. Id. Appellants do not challenge 

these findings.

6. Use of majority-vote requirements.
(478 U.S. at 45)

The District Court found that Arkansas has "a 

majority vote requirement affecting races for the General 

Assembly and many other public offices." J.S. App. 29. 

Appellants do not challenge this finding.17

16Prior to Smith, only one legislative district outside 
Pulaski County (Little Rock) had ever sent a black person 
to the General Assembly.

17In its decision on appellees’ pre-clearance claim, see 
supra note 5, the court found that the General Assembly 
acted with discriminatory intent in enacting four different 
majority-vote statutes since 1972. Slip Op. May 24, 1990.

- 18 -



7. Lack o f responsiveness o f elected 
officials. (478 U.S. at 45)

Although "there is a widespread feeling . . . among 

black voters" that "white legislators in the Delta are 

insensitive to the concerns of poor black people," J.S. 

App. 31, the District Court ruled that "the charge that 

white legislators in the Delta are unresponsive to black 

needs has not been proved to our satisfaction on this 

record," id. at 32.

8. Other factors. (478 U.S. at 45)

On the strength o f the policy underlying the 1981 

plan, the District Court concluded: "There are a number 

of crosscurrents here, and they point in various directions. 

On the whole, we are not persuaded that this factor has 

much weight." J.S. App. 35. The Court found that the 

other factors listed in the Senate Report and discussed in 

Thornburg had no applicability to this case: candidates run 

for a designated seat and thus single-shot voting would 

have no practical significance; none o f the challenged

- 19 -



districts was unusually large; "[a]s far as we know the 

process o f slating plays no part in races for the Arkansas 

Legislature." Id. at 29.

9. The totality o f the circumstances.
(478 U .S. at 46)

The District Court balanced the totality o f the 

circumstances in each o f the districts challenged by 

appellees. In "the Delta, the Jefferson County area, and 

the Ouachita-Nevada counties area as a group," the Court 

found: "On balance a clear answer emerges. In these

areas, black political opportunity is significantly lessened 

by the 1981 apportionment plan, and the plan violates 

Section 2 o f the Voting Rights Act." J.S. App. 35-36. In 

the Little Rock area, the Court found that "the whole 

political atmosphere, with respect to black opportunity and 

participation, seems more open," id. at 38, and rejected 

appellees’ claims.

The trial court’s careful application o f the "totality 

of the circumstances" approach required by the statute and

- 20 -



by Thornburg refutes appellants’ repeated assertions that 

the Court maximized black voting strength or required 

proportional representation.18 Moreover, had the District 

Court been driven by proportional representation as the 

measure o f liability it would have found in favor of 

plaintiffs’ Little Rock claim.19

B. The Legal Issues Sought to be Raised by 
Appellants Do Not Merit Plenary Review in 
this C ase._______________

As we have summarized above, the District Court 

carefully assessed the evidence and made appropriate 

findings on each of the factors identified in the statute,

nSee, e.g., J.S. 14, 23. The District Court expressly 
adhered to the statutory provision that "members o f a 
protected class have no right to be ’elected’ in numbers 
equal to their proportion to the population. 42 U .S.C . § 
1973(b)." J.S. App. 30.

19The District Court found that the factors present in 
eastern and southern Arkansas also existed to a significant 
degree in Little Rock and that a fourth compact and 
contiguous, majority-black district could be drawn in Little 
Rock. J.S. App. 36-38.

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according to the framework established by the Court’s

ruling in Thornburg. Indeed, if  anything, the record and

findings below are even more compelling than in

Thornburg. The only distinction between the cases is that

here the challenge involved single-member rather than

multi-member districting. Appellants urge that this

distinction justifies plenary consideration o f this matter.20

However, although the question was formally pretermitted

by the Court in Thornburg, 478 U .S. at 46 n.12, the Court

explained that (478 U .S. at 50 n.16):

In a different kind o f case, for example a 
gerrymander case, plaintiffs might allege that 
the minority group that is sufficiently large 
and compact to constitute a single-member 
district has been split between two or more 
multi-member or single-member districts, 
with the effect o f diluting the potential 
strength o f the minority vote.21

20,1 [T]he Gingles formulation does not fit neatly in a 
single-member district situation." J.S. 15.

21Justice O’Connor also noted:

There is no difference in principle between
(continued...)

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As noted previously, in Mississippi Republican Executive 

Committee v. Brooks, 469 U.S. 1002 (1984), this Court 

summarily affirmed a lower court decision that precisely 

this violation o f § 2 had occurred in the creation o f a 

congressional district.21 22 Because the District Court in this 

case carefully and correctly followed the road map 

provided by Thornburg, further review is inappropriate and 

unnecessary.

21( . . .continued)
the . . . varying effects o f alternative single- 
district plans and multi-member districts.
The type o f districting selected and the way 
in which district lines are drawn can have a 
powerful effect on the likelihood that 
members o f a geographically and politically 
cohesive minority group will be able to elect 
candidates of their choice.

478 U .S. at 87 (concurring opinion).

22Accord Gingles v. Edmisten, 590 F. Supp. 345, 355 
(E .D.N.C. 1984), aff’d in part and rev’d  in part on other 
grounds sub nom. Thornburg v. Gingles, 478 U .S. 30 
(1986); Neil v. Colebum, 689 F. Supp. 1426 (E.D. Va. 
1988); Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), 
cert, denied, 471 U .S. 1135 (1985); Major v. Treen, 574 
F. Supp. 325 (E.D. La. 1983). (There is no conflict 
among the lower courts on this point.)

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Neither the Jurisdictional Statement nor the dissent

below properly raise any question o f law that remains 

unanswered after Thornburg. Appellants’ first "Question 

Presented" — whether § 2 requires a showing that minority 

citizens have both less opportunity to participate in the 

political process and less opportunity to elect candidates of 

their choice — does not arise here since the District Court 

explicitly found that appellees proved both a lesser 

opportunity to participate and a lesser opportunity to elect. 

J.S. App. 9-10. The court below expressly rejected 

appellants’ assertion that black citizens in eastern and 

southern Arkansas "have just as much opportunity to 

participate in the political process as anyone else," finding 

that "[t]his argument fails to reckon with the present effects 

of past racial discrimination, much of it official and 

governmental." J.S. App. 14.

The second "Question Presented" in the 

Jurisdictional Statement — whether Thornburg was correctly

- 24 -



applied, is merely a disagreement with the court below on 

factual issues, and the District Court’s findings of fact must 

be affirmed unless clearly erroneous, 478 U .S. at 78-79. 

Appellants fail to identify any specific finding that is 

clearly erroneous and, as we have shown above, the 

findings are well supported in this record.

The third "Question Presented" — whether the court 

below properly ordered that the remedy include three 

legislative districts having effective black VAP majorities 

— raises no substantial legal issue. Once a violation o f § 2 

was found, the District Court simply and correctly applied 

the same remedial principles enunciated in Thornburg and 

other cases to insure that black citizens whose voting 

strength had been diluted under the 1981 plan would have a 

realistic opportunity to participate in political contests and 

to elect candidates. See United Jewish Organizations v. 

Carey, 430 U .S. 144, 162 (1977)(minority districts "at a 

minimum and by definition . . . must be more than 50%

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black . . .  [in order] to ensure the opportunity for the 

election o f a black representative"); Beer v. United States, 

425 U .S. 130, 141-42 (1976); City o f Richmond v. United 

States, 422 U .S. 358, 370-71 (1975); White v. Regester, 

412 U .S. 755, 768 (1973).23 The District Court did

“The District Court accepted without modification six 
of the Apportionment Board’s nine remedial districts. The 
record clearly supports the Court’s conclusion that three of 
the Board’s eastern Arkansas districts did not create 
effective black-majority VAP districts and would not cure 
the violations, J.S. App. 197-98. In addition to the 
unrefuted evidence of lower voter registration and turnout 
among blacks, e.g. TR Oct. 2, 1990 (morning) 52, and 
severe racially polarized voting, PX3, the court below 
found that in eastern Arkansas, the "center o f the black 
population," id. at 200, official discrimination calculated to 
have a "powerful chilling effect" on black political and 
electoral participation, id. at 27 and depressed 
socioeconomic conditions, id. at 28, were particularly 
egregious.

The District Court also correctly concluded that 
these three districts drawn by the Apportionment Board 
themselves violated § 2. Appellees’ expert witness gave 
uncontradicted evidence that the configuration o f these 
districts continued to fracture black population 
concentrations; the Apportionment Board rejected less 
dilutive options and chose lines that artificially depressed 
black voting majorities and favored incumbents, J.S. App. 
200; and the court found that there was no legitimate state

(continued...)

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nothing more than "exercise its traditional equitable powers 

so that it completely remedie[d] the prior dilution o f  

minority voting strength and fully provide[d] equal 

opportunity for minority citizens to participate and to elect 

candidates o f their choice." S. Rep. No. 417, 97th Cong., 

2d Sess. 31 (1982).23 24

23 (.. .continued)
policy or "neutral, nondiscriminatory reason" for drawing 
the district lines submitted by the Apportionment Board, 
J.S. App. 200, and that the Board was motivated by a 
desire to protect white incumbents at the expense of black 
challengers, id.

Governor Clinton, one of the appellants, objected to 
the Board’s House plan because in seeking to protect an 
incumbent in eastern Arkansas, it spumed "the best 
opportunity to resolve the historic dilution o f black voting 
strength in that region." J.S. App. 200. The Governor 
submitted his own remedial House plan that included a 
nonincumbent district in eastern Arkansas.

24Appellants’ assertion that the District Court remedy 
maximized black voting strength is patently false. Directly 
at odds with such a goal, the court below rejected 
modifications which appellees had proposed to increase the 
black VAP o f the Board’s new Senate district in southern 
Arkansas explicitly because "black voters [must] have equal 
opportunity, [but] we do not think [the Apportionment 
Board] should be faulted for failure to give black voters an 
additional edge," J.S. App. 202.

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Finally, the District Court did not abuse its 

discretion in rejecting appellants’ laches claim.23

The dissenting opinion below is founded on a

^Laches is a discretionary, equitable doctrine that 
involves a balancing o f all o f the circumstances. Czaplicki 
v. The S.S. Hoegh Silvercloud, 351 U .S. 525, 534 (1956). 
Here the District Court concluded that the balance lay in 
favor o f appellees’ claims. J.S. App. 12. There is no 
reason for this Court to second-guess that balancing of the 
equities.

In any event, appellants did not meet even the 
minimum requirements to make out a claim o f laches, 
because they did not prove either unreasonable and 
inexcusable delay in appellees’ assertion o f their rights or 
material prejudice resulting from that delay, Costello v. 
United, States, 365 U .S. 265, 282 (1961); Gardner v. 
Panama Railroad Company, 342 U .S. 29, 31 (1951). The 
economic harm alleged in this Court, see J.S. 25-26, is 
directly attributable to the State’s violation of the Voting 
Rights Act, not to any delay on the part o f appellees. In 
addition, the cost o f remedying the violation — the process 
of redistricting — has already been incurred and proved to 
be neither prohibitive nor significantly disruptive. Finally, 
although appellants argued that "there is absolutely no 
reason to believe that districts drawn according to [the 
remedial orders below] will produce different electoral 
results" from the 1981 plan, id. at 26, the May, 1990 
primary elections held under the new plan produced results 
dramatically different from any past election. Black 
candidates won every election in which they ran in the 
newly configured districts.

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passionate disagreement with the fundamental premises of 

the Voting Rights Act, as clarified by the 1982 

amendments.26 It does not identify clearly erroneous

^However intense the feelings o f the dissenting judge, 
his basic disagreement is with the Congressional policy 
choice and it provides no justification or need for this 
Court to engage in plenary review o f the faithful 
implementation o f Thornburg and the legislative history of 
§ 2 by the court below. For example, the dissent imports 
an intent requirement into § 2, in direct contravention of 
Thornburg, 478 U.S. at 70-74; id. at 83 (concurring 
opinion), and the 1982 amendments. The dissent also 
disregards much o f the record evidence on the factors 
which Thornburg indicated should be canvassed in a § 2 
case because, in its view, "some o f the actual Senate 
factors may have no more relevance than the extent to 
which minority group members drink coffee." J.S. App. 
74. The dissent would limit consideration o f the factors 
identified in the legislative history to cases challenging "a 
voting literacy test or a financial burden test (e.g., poll 
tax)," id. at 120, apparendy excluding their relevance even 
to at-large challenges in direct contravention of the 
approach outlined by this Court in Thornburg.

Indeed, while it accuses the appellees o f having 
failed to establish that black citizens in the challenged 
districts have "less opportunity than others to participate in 
the political process," id. at 62, the dissent would limit § 
2 ’s coverage to direct impediments to a black citizen’s 
opportunity to register, to enter a polling booth and to pull 
the lever, id. at 64. The dissent does not, however, 
dispute the majority’s finding that "the diminished socio-

(continued...)

- 29 -



findings o f fact27 or any legal errors which this Court

% .. continued)
economic status found to have resulted from prior 
discrimination" results in blacks having "less opportunity to 
participate in the political process," J.S. App. 85. 
Reduced to its essence, therefore, the dissent simply 
refuses to make the judgment required by the Act and by 
Thornburg on the basis o f the "totality o f the 
circumstances."

27The dissenting opinion below, in concluding that 
current discriminatory voting practices are "isolated," J.S. 
App. 125, ignores overwhelming evidence in the record. 
Plaintiffs introduced uncontroverted evidence that polling 
places in black wards were routinely moved during the two 
weeks before the election and that no notice was posted at 
the old location, e.g . , TR Oct. 2, 1989 (morning) 18-21, 
IV 172-173, 176 (Phillips County), III 130-132 (Chicot 
County; black ward polling places moved at least twice in 
last five years), IV 127-130 (Chicot County), III 157-159 
(Mississippi County), and that polling places for black 
wards are placed in inhospitable, inconvenient and 
inaccessible locations, such as the City jail, TR III 130, 
136 (Chicot County), and a white country-western club 
distant from the black community, TR Oct. 2, 1989 
(afternoon) 33-35 (Lee County), III 44-46 (Lee, Phillips, 
Monroe counties), IV 129-130 (Chicot County), IV 173 
(Phillips County).

Plaintiffs also showed that in many counties 
virtually all o f the election judges, sheriffs o f the day and 
clerks were white persons, such as farmer’s wives in areas 
where blacks worked on white-owned farms, who 
intimidated and discouraged black voters. E.g. TR III-51

(continued...)

- 30 -



^(...continued)
(Lee County), III 173-174 (Phillips County), III 125-26 
(Chicot County) (in 1988 voting booths provided in white 
wards but not in black wards thus depriving black voters of 
ballot privacy), IV 118-119 (white candidates inside the 
polling place; black candidates not allowed inside), IV 
123 (all Chicot County election judges are white), IV 124 
(paper ballots filled out on a plain table and white election 
judge looks over shoulders), III 151-54, 155-56, 161 
(Mississippi County).

In Desha and Ashley counties, white poll officials 
refused to allow illiterate black voters to be assisted by 
relatives and blacks who challenged the practice were 
physically threatened, TR IV 92-96, V 107-109.

The dissenting opinion also accuses the majority of 
using a "scattershot" approach and of failing to analyze 
each challenged district separately, but the record and the 
findings refute this charge. Appellees introduced 
overwhelming evidence on each relevant factor in each 
challenged area. The evidence showed that eastern and 
southern Arkansas share a common plantation history 
replete with official and private discrimination having 
continuing present effects, and that extreme racially 
polarized voting, racial campaign appeals, intimidation of 
candidates and other currently effective barriers to black 
political participation characterize the entire region. It was 
unnecessary for the District Court to repeat the same 
factual findings over and over for each separate district. 
Instead, the Court found that this pattern existed across 
eastern and southern Arkansas, in every affected county 
and legislative district. When the trial court found a 
departure from this pattern, in Little Rock, it described it

(continued...)

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should correct, or could correct after a careful review o f  

the massive evidentiary record in this case.

27( . . .continued)
as an exception to the general pattern and found no § 2 
violation, J.S. App. 35-37. In eastern and southern 
Arkansas, there was no exception to the pattern, as the trial 
court explicitly found. J.S. App. 35-36.

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Conclusion

For the foregoing reasons, the judgment o f the 

District Court should be affirmed summarily.

Respectfully submitted,

P.A. HOLLINGWORTH 
415 Main Street 
Little Rock, AR 72201 
(501) 374-3420

OLLY NEAL 
33 North Poplar Street 
Marianna, AR 72360 
(501) 295-2578

DON E. GLOVER 
P. O. Box 219 
Dermott, AR 71638 
(501) 538-9071

L. T. SIMES 
P. O. Box 2870 
West Helena, Arkansas 

72390
(501) 572-3796

PENDA D. HAIR*
SHEILA Y.THOMAS 
1275 K Street, N.W .
Suite 301 
Washington, D.C.

20005
(202) 682-1300

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKIN 
DAYNA L. CUNNINGHAM  
99 Hudson Street,
16th floor
New York, NY 10013 
(212) 219-1900

*Counsel o f Record 

July 25, 1990

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