Tyus v. Bosley, Jr. Petition for Writ of Certiorari

    ____________ No^________________________

In The

^prEine CCourt of tl|e ISniteii î tatea
October Term, 1993

SHARON TYUS; FREEMAN BOSLEY, SR.; BERTHA 
MITCHELL; IRVING CLAY, JR.; and CLAUDE TAYLOR,

Petitioners,
V.

FREEMAN BOSLEY, JR., in his capacity as Mayor,
City of St. Louis, Missouri; THOMAS A. VILLA, in his 

capacity as President, Board of Aldermen, City of 
St. Louis, Missouri; BOARD OF ALDERMEN,

City of St. Louis, Missouri; and CITY OF ST. LOUIS,
Respondents.

Petition for Writ of Certiorari to the United 
States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

ELAINE R. JONES 
Director- Counsel 

THEODORE M. SHAW 
CLYDE MURPHY 
CHARLES STEPHEN RALSTON 
GAILON W. McGOWEN, JR. 
NAACP Legal Defense and 

Education Fund, Inc.
99 Hudson St., Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

JUDSON H. MINER 
Counsel of Record 

GEORGE F. GALLAND, JR. 
JEFFREY I. CUMMINGS 
BARACK OBAMA 
DAVIS, MINER, BARNHILL 

& GALLAND 
14 West Erie Street 
Chicago, IL 60610 
(312) 751-1170

Counsel for Petitioners

Midwest Law Printing Co., Chicago 60611, (312) 321-0220



QUESTIONS PRESENTED FOR REVIEW
1. Is a single-member, multi-district reapportionment 

plan immune from a challenge imder §2 of the Voting 
Rights Act simply because the plan provides African ^ e r -  
icans with a “proportional” number of districts in the juris­
diction as a whole?

2. Does a minority group’s “proportional representation” 
bar its §2 claim that district boundaries were purposefully 
manipulated to dilute and minimize its voting strength, to 
maximize the voting strength of the majority group, and to 
“maintain[ ] the reelection chances of white incumbents?”

3. If a minority group’s “proportional representation” 
does defeat its §2 challenge to a single-member, multi­
district plan, is such representation measured by the minor­
ity group’s share of the jurisdiction’s voting-age population 
or by its share of the total population?



11

PARTIES TO THE PROCEEDINGS BELOW
The parties to the proceedings in the United States 

Court of Appeals for the Eighth Circuit were petitioners 
Sharon Tyus; Freeman Bosley, Sr.; Bertha Mitchell; Irving 
Clay, Jr.; and Claude Taylor; and respondents Thomas A. 
Villa, in his capacity as President, Board of Aldermen, City 
of St. Louis, Missouri; Vincent C. Schoemehl, in his capacity 
as Mayor, City of St. Louis, Missouri; Board of Aldermen, 
City of St. Louis, Missouri; and City of St. Louis, Missouri.

Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR R EV IE W ........ i
PARTIES TO THE PROCEEDINGS BELOW........ ii
TABLE OF AUTHORITIES....................................  v
OPINIONS BELOW ...................................................  vi
STATEMENT OF JURISDICTION .......................  1
CONSTITUTIONAL PROVISIONS 

AND STATUTES INVOLVED............................  1
STATEMENT OF THE C A S E ..............................  2

1. Statement of the F a c ts ....................................  2
2. The Proceedings Below....................................  3
3. The Lower Courts’ Opinions........................... 6

a. The District C o u rt......................................  6
b. The Proceedings In the Eighth Circuit . . .  7

REASONS FOR GRANTING THE WRIT:
I.

THE LOWER COURTS’ DECISION THAT “PRO­
PORTIONAL REPRESENTATION” BARS A §2 
CHALLENGE TO A SINGLE-MEMBER DISTRICT 
PLAN CONFLICTS WITH THIS COURT’S DECI­
SIONS IN GINGLES AND VOINOVICH AND PRE­
SENTS AN UNSETTLED ISSUE OF GREAT PUB­
LIC IMPORTANCE THAT REQUIRES CLARIFICA­
TION BY THIS COURT............................................  8
A. In Gingles, this Court articulated a clear ana­

lytical framework for vote dilution claims in 
the multi-member district context, while recog­
nizing that a different analysis might apply to 
single-member district p lans..........................  10



IV

B. In Voinovich, this Court suggests an approach
for analyzing challenges to single-member dis­
trict plans that conflicts with the lower courts’ 
opinion................................................................. 12

C. The lower courts’ approach conflicts with the
language and purpose of the Voting Rights Act 
itse lf..................................................................... 21

II.
THE LOWER COURTS’ HOLDING THAT PROPOR­
TIONAL REPRESENTATION BARS A §2 INTENT 
CLAIM CONFLICTS WITH THE RULINGS OF 
THIS COURT AND WITH OTHER CIRCUITS . . .  23

III.
IF PROPORTIONAL REPRESENTATION IS TO 
SERVE AS A DEFENSE TO VOTING RIGHTS 
CLAIMS, THE LOWER COURTS’ USE OF VOTING- 
AGE POPULATION RATHER THAN TOTAL POPU­
LATION AS THE MEASURE OF PROPORTIONAL 
REPRESENTATION RAISES AN IMPORTANT IS­
SUE ON WHICH LOWER COURTS HAVE TAKEN 
DIVERGENT POSITIONS........................................ 26
A. This Court should provide direction to lower

courts who are in conflict regarding the proper 
measure of proportional representation------  26

B. The language of the Act and this Court’s
precedents indicate that total population is the 
proper measure of proportion^ity...............  27

IV.
THIS CASE RAISES ISSUES SIMILAR TO THOSE 
RAISED IN DEGRANDY v. JOHNSON MAKING 
DEFERRAL APPROPRIATE..................................  29

CONCLUSION............................................................. 30

V

TABLE OF AUTHORITIES

Coses Page

Allen V. State Board o f Education, 393 U.S. 544, 89
S.Ct. 2052, 22 L.Ed.2d 1 (1969)......................... 29

Assembly o f State o f California v. U.S. Dept, o f Com­
merce, 968 F.2d 916 (9th Cir. 1992).................  29

Baird v. Consolidated City o f Indianapolis, 976 F.2d
35 (7th Cir. 1992).................................................  22,23

Barnett, et al. v. Daley, et al., 809 F.Supp. 1323
(N.D.Ill. 1992).........................................................  26

Barnett, et al. v. Daley, et al., 835 F.Supp. 1063
(N.D.Ill. 1993).........................................................  9, 25

Campbell v. Theodore, ___  U.S. ___ , 113 S.Ct.
2954, 125 L.Ed.2d 656 (1993)..............................  7,14

Chisom V. Roem er,___ U.S. ____ , 111 S.Ct. 2354,
115 L.Ed.2d 348 (1991)........................................  29

City o f Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1519,
64 L.Ed.2d 47 (1980)............................................ 23

City o f New York v. U.S. Dept, o f Commerce, 822
F.Supp. 906 (E.D.N.Y. 1993)..............................  29

City o f Port Arthur, Texas v. United States, 517 
F.Supp. 987 (D.D.C. 1981) (three-judge court), 
ojfd, 459 U.S. 159 (1982)....................................  24

City o f Richmond v. United States, 422 U.S. 358, 95
S.Ct. 2296, 45 L.Ed.2d 245 (1975).....................  23, 26

Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73
L.Ed.2d 656 (1982)...............................................  22

DeGrandy v. Johnson, No. 92-519, appeal pending,
113 S.Ct. 1249 (1993)............................................ 26, 29

Fumco Const. Corp. v. Waters, 438 U.S. 567, 98 S.Ct.
2943, 57 L.Ed.2d 957 (1978)................................  22

Garza v. County o f Los Angeles, 918 F.2d 763 (9th
Cir. 1990), cert, denied. 111 S.Ct. 681 (1991) .. 14, 25, 28



VI

Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125,
5 L.Ed.2d n o  (1960)............................................ 24

Gnrwe v. Em ison,___ U .S.____ , 113 S.Ct. 1075, 122
L.Ed.2d 388 (1993)...............................................  5, 7,14

Jeffers v. Clinton, 730 F.Supp. 196 (E.D. Ark. 1989),
affd, 498 U.S. 1019 (1991)......................... 9,14, 26, 27

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), cert.
denied, 471 U.S. 1135 (1985)........................... 14, 23, 24

Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225
22 L.Ed.2d 519 (1969).......................................... 28

Kirksey v. Bd. o f Supervision, 554 F.2d 139 (5th Cir.),
ceH. denied, 434 U.S. 968 (1977)....................... 14

Major V. Treen, 574 F.Supp. 325 (E.D.La. 1983) . . .  23
McNeil V. Springfield Park, 851 F.2d 937 (7th Cir.

1988), ceH. denied, 490 U.S. 1031 (1989).......... 13, 27
Nash V. Blunt, 797 F.Supp. 1488 (W.D.Mo. 1992),

affd, 113 S.Ct. 1809 (1993)................................  10, 26
Phillips V. Martin Marietta Corp., 400 U.S. 542, 91

S.Ct. 496, 27 L.Ed.2d 613 (1971)....................... 22
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12

L.Ed.2d 506 (1964)...............................................  28
Robinson v. Commissioners Court, 505 F.2d 674 (5th

Cir. 1974)................................................................. 15
Rodgers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73

L.Ed.2d 1012 (1982).............................................. 25
Rural West Tennessee African American Affair 

Council V. McWherter, 836 F.Supp. 453 (W.D.
Tenn. 1993)..................... ......................................  10, 26

Rybicki v. State Board of Elections, 574 F.Supp. 1082
(N.D. 111. 1982) (three-judge court)...................  25

Shaw V. Reno, ___  U.S. ___ , 113 S.Ct. 2816, 125
L.Ed.2d 511 (1993)........................................  7, 23, 24, 26

Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92
L.Ed.2d 25 (1986)...................................................passim

Vll

United Jewish Organizations v. Carey, 430 U.S. 144,
69 S.Ct. 996, 51 L.Ed.2d 229 (1977).................  28

Voinovich v. Quitter,___ U .S .____ , 113 S.Ct. 1149,
122 L.Ed.2d 500 (1993)...........................................passim

Wetherell v. DeGrandy, 794 F.Supp. 1076 (N.D.Fla.
1992), jurisdiction noted, sub nom. DeGrandy v. 
Johnson,___ U.S_____ _ 113 S.Ct. 1249 (1993) .. 9

Constitutional Provisions and Statutes
United States Constitution, 14th and 15th Amend­

ments ................................................................ 3, 9, 23, 25
28 U.S.C. §1254(1)...................................................... 1
42 U.S.C. §1973 ........................................................ passim



I n T he

Supreme Olourt 0f tlje Mnltth t̂atea
October Term, 1993

SHARON TYUS; FREEMAN BOSLEY, SR.; BERTHA 
MITCHELL; IRVING CLAY, JR.; and CLAUDE TAYLOR,

Petitioners,
V.

FREEMAN BOSLEY, JR., in his capacity as Mayor,
City of St. Louis, Missouri; THOMAS A. VILLA, in his 

capacity as President, Board of Aldermen, City of 
St. Louis, Missouri; BOARD OF ALDERMEN,

City of St. Louis, Missouri; and CITY OF ST. LOUIS,
Respondents.

Petition for Writ of Certiorari to the United 
States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI



Sharon Tyus, Freeman Bosley, Sr., Bertha Mitchell, 
Irving Clay, Jr. and Claude Taylor respectfully petition for 
a writ of certiorari to review the judgment of the United 
States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW
The opinion of the Court of Appeals for the Eighth Cir­

cuit together with the Court of Appeals’ order denying peti­
tioners’ suggestion for rehearing en banc and the written 
dissent to that order by Judge McMillian, are reported at 
999 F.2d 1301 and appear in Appendix A (“App. A”) to this 
petition. The opinions of the District Court for the Eastern 
District of Missouri granting defendants’ Motion for Sum­
mary Judgment and denying plaintiffs’ Rule 59(e) Motion 
to Alter or Amend are unpublished and appear as Appendi­
ces B and C, respectfully.

STATEMENT OF JURISDICTION
The judgment of the Court of Appeals was entered on 

August 4, 1993. Appellants were granted an extension to 
August 31, 1993 to file for rehearing. On August 30, 1993, 
appellants timely filed their petition for rehearing with sug­
gestions for rehearing en banc. On November 1, 1993, one 
judge dissenting, the Court of Appeals denied both petition­
ers’ suggestions for rehearing en banc and their petition for 
rehearing. On January 25, 1994 and again on February 8, 
1994, this Court extended the filing date to March 1, 1994. 
This Court has jurisdiction under 28 U.S.C. §1254(1).

CONSTI'TUTIONAL PROVISIONS 
AND STATUTES INVOLVED

This case involves §2 of the Voting Rights Act, as 
amended, 42 U.S.C. §1973. The relevant portion of the 
statute appears at Appendix D.



STATEMENT OF THE CASE
1. Statem ent of the Facts.
Petitioners are residents and voters in the City of St. 

Louis. By its charter, the defendant St. Louis Board of 
Aldermen was required in 1991 to redraw the aldermanic 
boundaries in accordance with decennial census figures 
(Art. I, §3). According to the 1990 census, St. Louis was 
50.2% white, 47.4% African American, and 2.5% Hispanic 
and other minorities.^ The city’s voting-age population was 
55% white, 42.6% African American, and 2,4% Hispanic and 
others (159-210). This population is strikingly segregated. 
Over 90% of the white population in St. Louis is located on 
the city’s south side and north along the Mississippi River 
to the city’s northern end, while over 90% of the African 
American population is concentrated on the city’s north 
side, and west of the river front. A continuous boundary can 
be drawn to encapsulate each community (73-83; 159-210; 
211).

At the time the redistricting began, using the 1990 cen­
sus data and the 1981 ward boundaries, the African Amer­
ican population had grown to a majority status of 59.6% or 
more in 13 of the city’s 28 wards and a plurality of 48.8% 
in a 14th Ward. The white community had contracted to a 
majority status of 58% or more in 13 wards and a plurality 
of 49.8% in a 14th Ward (169-70). When the Board of Aider- 
men began to redistrict the city, there were 17 white in­
cumbent aldermen and 11 African American incumbent

According to the Census Bureau’s adjusted post-enumeration 
figures, St. Louis is 48.9% white, 48.5% African American, and 
2.5% Hispanic and other minorities (168). Citations are to the 
pages of the record appendix filed with the Eighth Circuit.

aldermen, and there was a white mayor (63-7).*
During the redistricting process, the African American 

aldermen proposed a plan that provided for 14 wards in 
which African Americans could elect the candidates of their 
choice and 14 wards in which whites could elect their pre­
ferred candidates (89). The proposal was rejected by the 
majority aldermen, who instead adopted a map th a t pro­
vided for 16 wards in which whites have a voting-age 
majority and can elect their candidate of choice, 11 wards 
in which African Americans have a voting-age majority and 
can elect their candidate of choice, and 1 ward (the 2nd) in 
which African Americans have a 59.4% voting-age majority 
but, eight months earlier, with similar population figures, 
the African American community was unable to elect its 
candidate of choice in a head-to-head bi-racial election (62- 
7; 151-52; 169-70; 122).

2. 'The Proceedings Below.
In January, 1992, plaintiffs challenged St. Louis’ 1991 

Ward map as a race-based redistricting whose ward boun­
daries were manipulated with the purpose and effect of 
diluting or minimizing the electoral potential of the city’s 
African American population while maximizing the voting 
strength of the white population, in violation of §2 of the 
Voting Rights Act and the Fourteenth and Fifteenth 
Amendments to the United States Constitution (1-18).®

In February, 1993, while the appeal was pending, in a four 
candidate primary, the white incumbent was defeated and an 
African American won the democratic nomination for mayor. In 
April, the African American democratic nominee won the general 
election.

® In their complaint, plaintiffs alleged a one-person, one-vote 
claim under the 14th Amendment together with a vote dilution 
or racial gerrymander claim under §2 of the Voting Rights Act 
and the 14th and 15th Amendments. The trial court rejected

(continued...)



Specifically, plaintiffs alleged that boundaries were 
manipulated to fracture or “fragment[ ] a geographically 
compact group of black voters” which would have supported 
“one or more [additional] wards without such fragmenta­
tion,” and to “reduc[e] the number of black persons residing 
in [specific] wards” (12). According to plaintiffs’ complaint, 
if the boundaries had been drawn “fairly and without dis­
criminatory effect, blacks would constitute an effective 
voting majority in at least 14 out of the 28 aldermanic 
wards” (10). Instead, the 1991 Map provided African Ameri­
cans with a voting-age majority in only 12 wards, and an 
effective voting majority in only 11 wards.^ Plaintiffs also 
alleged that defendants drew the map with “[t]he purpose 
to deny or abridge the [voting] rights of blacks on account 
of race or color” (10).

Defendants filed an answer® and then promptly moved 
for summary judgment. The single ground for their motion

® (...continued)
plaintiffs’ one-person, one-vote claim and treated plaintiffs’ vote 
dilution and/or racial gerrymander claims under §2 and not the 
Constitution. On appeal, plaintiffs argued both their “results” and 
their “intent” claims under §2 only. They did not appeal the one- 
person, one-vote ruling.
* Plaintiffs further alleged that (a) the African American popu­
lation was sufficiently large and geographically compact to sup­
port 2 or 3 additional wards in which it could elect its preferred 
candidates; (b) African Americans in St. Louis are politically co­
hesive; and (c) the African-American population in St. Louis is 
subject to racial bloc voting against candidates preferred by Afri­
can Americans (9-11). Plaintiffs also alleged the presence of the 
continuing burdens of past discrimination in voting rights, hous­
ing and employment, all of which inhibit the ability of African 
Americans to participate in the electoral process and to elect can­
didates of their choice (9).
® In their answer, defendants admit that there is ample Mrican 
American population for 14 wards (22); that voting in portions of 
St. Louis is racially polarized (22-3); and that St. Louis has a long 
history of private and public racial discrimination (22).

was tha t the 1991 map provides African Americans with 
the possibility of obtaining proportional representation mea­
sured by their percentage of voting-age population; tha t is, 
African Americans, who comprise 47.4% of the city’s total 
population but only 42.6% of its voting-age population, have 
the possibility of electing their preferred candidates in 12 
(42.8%) wards. In addition, defendants argued tha t St. 
Louis ward maps have provided the c it/s  African American 
population with “proportional representation”, as measured 
by voting-age population, for the past two decades (32).

In plaintiffs’ response, their expert disputed both the 
manner in which defendants measured potential African 
American voting strength under the new map, as well as 
defendants’ assertion that proportional representation had 
been previously achieved in St. Louis.® Plaintiffs argued 
tha t because St. Louis is required to redistrict on the basis 
of total population, total African American population and 
not African American voting-age population must be used

® First, plaintiffs pointed out that defendants own chart showed 
that St. Louis’ African American community has never attained 
proportional representation on the cit3̂ s Board of Aldermen, even 
under a voting-age population measure (62, 212). Second, plain­
tiffs challenged the manner in which defendants’ expert arrived 
at his conclusions, given that he performed no independent analy­
sis of voting behavior in St. Louis, and relied solely on “the gen­
erally accepted” rule of thumb that defines a “safe” ward at 65% 
of total population or 60% of voting-age population and on figures 
presented in an article which was not included in his affidavit 
(32). Third, defendants’ expert counted the city’s 2nd Ward as an 
African American ward in concluding that the 1991 map provides 
for “proportional representation”, despite the fact that in 1991, 
when the 2nd ward had a 58.4% African American voting-age 
majority, the white incumbent defeated an African American rival 
in a biracial election highlighted by low African American par­
ticipation and severe racial bloc voting (62-7; 151-2; 169-70; 122). 
Plaintiffs argued below that these facts demonstrated the need 
for a thorough analysis of voting behavior within the Second 
Ward before it can be characterized as an African American 
ward. See Growe v. Emison, 113 S.Ct. 1075, 1085 (1993).



to determine whether African Americans have “proportional 
representation” (90-1). Utilizing this traditional yardstick, 
the 1991 map provided African Americans with a voting-age 
majority in 42.8% of the wards or an “effective majority” in 
only 39.2% of the wards, while African Americans’ percent­
age of St. Louis’ total population is 47.4%, a ratio well short 
of “proportional representation.”

Plaintiffs’ expert went on to detail the manner in which 
the 1991 ward boundaries were selectively manipulated to
(a) reduce African American population in wards tha t had 
become majority or plurality African American over the 
past decade; (b) fracture African American population; and 
(c) maximize white voting strength in the five wards within 
St. Louis’ central corridor, thereby “maintaining the re- 
election chances of white incumbents” (88-9). Plaintiffs 
argued that such evidence of racial gerrymandering to mini­
mize African American voting strength and to maximize 
white voting strength should be sufficient to take the case 
to trial, irrespective of the court’s findings regarding pro­
portional representation.

3. 'The Low er C ourts’ O pinions.
a. The D is tric t C ourt. The district court granted 

summary judgment to defendants. In doing so, the Court 
made no reference to plaintiffs’ undisputed evidence that 
the ward boundaries were manipulated to dilute or cancel 
out minority voting strength and that, if the boundaries 
had been drawn in a non-discriminatory manner, there 
would be at least two more compact African American 
wards and fewer white wards. Instead, the court focused ex­
clusively on the issue of whether the map provided St. 
Louis’ African American population with proportional re­
presentation, citing Thornburg v. Gingles, 478 U.S. 30 
(1986), for the proposition that once a minority group’s elec­
toral success reaches “proportional representation [it] bars 
a section 2 claim” (App. B-8).

The court also concluded that “proportional representa­
tion” should be measured by the minority group’s percent­
age of the voting-age population, and not by the group’s 
percentage in the total population (App. B-9). In addition, 
the court accepted defendants’ assertion that the 1991 map 
provides African Americans with 12 wards—proportional re­
presentation when measured against African Americans’ 
voting-age population—and that St. Louis’ aldermanic maps 
had provided African Americans with such “proportional re­
presentation” for the past two decades (App. B-8). Rejecting 
plaintiffs’ claim that, in the single-member, multi-district 
context, boundary manipulation should at the very least 
constitute a special circumstance that can demonstrate that 
this sustained proportional representation “does not accu­
rately reflect the minority’s ability to elect its preferred re­
presentatives,” the court concluded that “the sustained elec­
toral success of African American candidates [in St. Louis] 
defeats plaintiffs’ claim” (App. B-9).

b. The P roceed ings In  the  E ig h th  C ircu it. On
November 30,1992, petitioners appealed the district court’s 
ruling. The briefing was completed on March 17, 1993, and 
the appeal was argued on May 12, 1993. On August 4, 
1993, the panel issued an order finding “no error of law or 
clearly erroneous findings of fact in the district court’s well- 
reasoned memorandum,” and affirming the judgment of the 
district court’ (App. A-3).

’’ Between March 2, 1993 and June 28, 1993, while the appeal 
was pending, this Court issued three opinions and an order in 
which it began to articulate the appropriate framework for analy­
zing voting rights challenges to single-member, multi-district 
plans like that in St. Louis. Growe v. Emison, 113 S.Ct. 1075 
(1993); Voinovich v. Quitter, 113 S.Ct. 1149 (1993); Shaw v. Reno, 
113 S.Ct. 2819 (1993); and Campbell v. Theodore, 113 S.Ct. 2954 
(1993). On July 15, 1993, petitioners moved for a supplemental 
briefing schedule to address this new Supreme Court authority

(continued...)



8

On August 31, 1993, petitioners filed a suggestion for a 
rehearing en banc. The petition was denied on November 1, 
1993, without opinion. Judge McMillian filed a written dis­
sent, criticizing the court’s handling of the case:

This case raises important legal and factual issues 
under the Voting Rights Act. In my view, genuine issues 
of material fact exist making this case wholly unsuited 
for summary judgment. The district court gave no con­
sideration to, and made no findings concerning, serious 
allegations and evidence of a violation of §2 of the Voting 
Rights Act. In particular, I believe the district court 
should have made detailed findings regarding whether 
the City of St. Louis intentionally created its aldermanic 
districts to dilute African American voting strength in 
violation of Section 2.

(App. A-3-4).

REASONS FOR GRANTING THE WRIT

THE LOWER COURTS’ DECISION THAT “PROPORTION­
AL REPRESENTATION” BARS A §2 CHALLENGE TO A 
SINGLE-MEMBER DISTRICT PLAN CONFLICTS WITH 
THIS COURT’S DECISIONS IN GINGLES AND VOINO- 
VICH AND PRESENTS AN UNSETTLED ISSUE OF GREAT 
PUBLIC IMPORTANCE THAT REQUIRES CLARIFICA­
TION BY THIS COURT.

This case presents an issue of fundamental importance 
to the continued vitality of the Voting Rights Act. The lower 
court held that where a redistricting plan provides a minor­
ity group with the potential for sustained proportional re­
presentation, the requirements of the Voting Rights Act are

’ (...continued)
which directly conflicts with the analytic framework adopted by 
the district court. The panel denied petitioners’ motion as moot 
(App. A-1).

satisfied, irrespective of undisputed evidence that the sin­
gle-member district boundaries have been blatantly manip­
ulated to advantage white over African American voters. 
The lower court based its conclusion on its interpretation of 
this Court’s opinion in Thornburg v. Gingles, supra, which, 
according to the lower court, makes proportional represen­
tation an absolute bar to any §2 claim.

The lower court’s holding fundamentally misreads this 
Court’s voting rights jurisprudence, and sets a dangerous 
precedent for the adjudication of §2 challenges to single­
member district plans. In Voinovich v. Quilter, supra, this 
Court observed that the manipulation of ward boundaries 
is the standard device by which to minimize or cancel out 
minority voting strength in single-member district plans. 
Such racial gerrymandering to prefer one race of voters over 
another can occur even where the gerrymander provides 
minority voters with rough “proportional representation” as 
measured by voting-age population.

Despite Voinovich, lower courts continue to struggle with 
this issue of how to reconcile challenges to single-member 
district plans with the emphasis on proportional representa­
tion contained in the closing section of the majority opinion 
in Gingles. This confusion has resulted in a number of in­
consistent rulings. For example, in Weatherall v. DeGrandy, 
794 F.Supp. 1076 (N.D.Fla. 1992) (three-judge court), ju r­
isdiction noted, sub nom. DeGrandy v. Johnson, 113 S.Ct. 
1249 (1993), the court did not apply a proportional repre­
sentation analysis to a challenged single-member district 
plan. See also Jeffers v. Clinton, 730 F.Supp. 196 (E.D. Ark. 
1989), affd , 498 U.S. 1019 (1991). On the other hand, a 
trial judge in Barnett v. Daley, 835 F.Supp. 1063, 1066 
(N.D. 111. 1993) relied upon the present action together with 
this Court’s opinion in Gingles for its conclusion that, as a 
m atter of law, proportional representation bars a voting 
rights claim under §2 and under the 14th or 15th Amend-



10

ments. See also Nash v. Blunt, 797 F.Supp. 1488 (W.D. Mo. 
1992) (three-judge court), affd , 113 S.Ct. 1809 (1992) (court 
applied Gingles' proportional representation analysis to a 
single-member district plan.)

In a slightly different context, the three-judge court in 
Rural West Tennessee African American Affair Council v. 
McWherter, 836 F.Supp. 453 (W.D. Tenn. 1993) applied a 
traditional “totality of the circumstances” analysis to the 
1991 Tennessee legislative map and found that it discrimi­
nated against African Americans by packing them into two 
districts in Shelby County, Tennessee and by fracturing 
them among four districts in a neighboring rural part of the 
state. The court concluded that an additional African 
American district could have been drawn in each area. The 
court ruled, nevertheless, that a remedy of one more district 
was sufficient in as much as it would provide African 
Americans with proportional representation as measured by 
their percentage of the voting-age population. In other 
words, the court held that despite a finding of actual dilu­
tion two areas, proportional representation analysis per­
mitted vote dilution in one of these areas to go unremedied.

This case presents the Court with the opportunity to 
clarify the appropriate anal)dical framework for evaluating 
the increasing number of challenges to single-member dis­
trict plans.
A. In Gingles, this Court articulated a clear analytical 

framework for vote dilution claims in the multi-member 
district context, while recognizing that a different 
analysis might apply to single-member district plans.
In Gingles, this Court stated that the essence of a §2 

claim is that based on the “totality of the circumstances,”
a certain electoral law, practice or structure interacts 
with social and historical conditions to cause inequality 
in the opportunities enjoyed by black and white voters to 
elect their preferred representatives.

11

478 U.S. a t 47 (Emphasis added); Voinovich, 113 S.Ct. at 
1155 (single-member district plan). In Gingles, and subse­
quently in Voinovich, this Court identified three precondi­
tions to any vote dilution “effects” claim: (a) a sufficiently 
large and geographically-compact minority community that 
can support additional single-member districts; (b) a politi­
cally cohesive minority community; and (c) racial bloc vot­
ing. Gingles, 478 U.S. a t 50-51; Voinovich, 113 S.Ct. a t 
1157. Once plaintiffs have satisfied this threshold showing, 
as petitioners have done here, they must provide evidence 
of those additional factors that tend to show that the chal­
lenged electoral practice causes an inequality in the oppor­
tunity of African American and white voters to elect their 
preferred candidates. According to this Court, these factors, 
which are listed in the Senate Report accompanying the 
Amendment to §2, are supportive, but not essential to, a 
minority voter’s claim. Gingles, 478 U.S. at 45. Moreover, 
failure “to establish any particular factor is not rebuttal evi­
dence of non-dilution.” S.Rep. at 29 n. 118.

In Gingles, this Court held that in the multi-member 
and /or at-large district context, “the extent to which minor­
ity group members have been elected to public office in the 
jurisdiction” is the single most important additional factor 
for courts to consider once the three preconditions are met. 
More precisely, a majority of the Court concluded that a 
minority’s proportional electoral success in a specific multi­
member district could defeat a minority’s §2 claim if it was 
sustained over a number of elections. According to a ma­
jority of the Court, such sustained proportional represen­
tation is “inconsistent” with a claim of vote dilution in the 
multi-member context. Id. at 76-77.

This Court refused to say that even sustained electoral 
success was an absolute bar to vote dilution challenges to 
multi-member districts, and reserved for decision those 
“special circumstances [that] could satisfactorily demon-



12

strate that sustained success does not accurately reflect the 
minority group’s ability to elect its preferred representa­
tives.” Id. a t 77, n. 38. Moreover, this Court was careful to 
state that the framework set out in Gingles might not apply 
to the analysis of challenges to single-member, multi-dis­
trict plans. Id. a t 45, n. 12; 48, n. 15; and 49, n. 16. As Jus­
tice O’Connor noted in her concurrence, in a single-member 
district context, “the way in which district lines are drawn 
can have a powerful effect on the likelihood that members 
of a geographically and politically cohesive minority group 
will be able to elect candidates of their choice.” Gingles, 478 
U.S. at 87 (O’Connor, J. concurring).

Given the critical differences in the manner in which 
vote dilution may be accomplished in various redistricting 
plans, the language of Gingles clearly cautions against the 
mechanical application of a proportional representation 
analysis to this case. 'The lower court failed to heed this 
warning, thereby summarily disposing of a well-documented 
claim of vote dilution under §2 and refusing to conduct the 
totality of the circumstances analysis demanded by §2.
B. In Voinovich, this Court suggests an approach for analy­

zing challenges to single-member district plans that
conflicts with the lower courts’ opinion.
The lower court’s assumption that the Gingles analysis 

of the importance of proportional representation applies 
with equal force in the single-member district context is 
wrong. In the at-large or multi-member district context, 
proportional representation is generally both the most use­
ful proxy for a minority group’s undiluted voting strength 
and the best indicator that the minority group has an equal 
opportunity to elect its preferred representatives. Under 
multi-member district or at-large plans, all voters are 
thrown into a single electoral stew; racial gerrymandering 
is not at issue. Instead, the danger posed by such plans is 
that “[i]f voting is racially polarized, a white majority is

13

able to consistently elect its candidates of choice, submerg­
ing the preferences of minority voters.” McNeil v. Spring- 
field Park, 851 F.2d 937, 938 n. 1 (7th Cir. 1988), cert, 
denied, 490 U.S. 1031 (1989). If, in this situation, minorities 
are consistently able to elect representatives in proportion 
to their numbers, it is difficult, if not impossible, to identify 
any sense in which the multi-member district plan causes 
dilution of their voting strength.®

'Things are very different in the single-member, multi­
district context. Only last term, in Voinovich, this Court 
recognized tha t in the single-member district context, “the 
usual device for diluting minority voting power is the 
manipulation of district lines,” and that in single-member 
districts (113 S.Ct. at 1155):

dilution of racial minority group voting strength may be 
caused either by dispersal of blacks into districts in 
which they constitute an ineffective minority of voters 
[fracturing] or from the concentration of blacks into 
districts where they constitute an excessive majority 
[packing].

In other words, “boundary manipulation” is the most rele­
vant factor in evaluating whether a single-member, multi­
district plan dilutes minority voting strength or causes an 
inequality in the opportunities enjoyed by African American

® A minority group’s sustained proportional representation with­
in the multi-member or at-large context will generally indicate 
that a substantial portion of the majority group “crosses over” to 
support minority candidates, a phenomenon that is “inconsistent” 
with a finding that racial bloc voting submerges minority voting 
strength to deprive them of equal opportunity to elect candidates 
of their choice. Proportional representation will be an even more 
accurate indicator of equal opportunity in multi-member jurisdic­
tions that contain only two racial groups (as was the case in the 
North Carolina districts analyzed in Gingles), since proportional 
representation for one group necessarily indicates proportional 
representation for the other group as well.



14

and white voters to elect their preferred representative. Id. 
at 1155.®

Voinovich’s emphasis on “fracturing” and “packing” in a 
single-member district case is not new. Lower courts have 
long recognized that the fracturing of a minority community 
coupled with racial bloc voting tends to dilute minority 
voting strength in violation of §2. Jeffers v. Clinton, 730 
F.Supp. a t 205; see also Ketchum v. Byrne, 740 F.2d 1398, 
1405 (7th Cir. 1984), cert, denied 471 U.S. 1135 (1985); 
Garza v. County o f Los Angeles, 918 F.2d 763, 771 (9th Cir. 
1990), cert, denied. 111 S.Ct. 681 (1991); Kirksey v. Bd. of

® More recently, in Campbell v. Theodore, 113 S.Ct. 2954 (1993) 
this Court suggests the need for a detailed, fact intensive analysis 
to determine whether a specific, single-member, multi-district 
scheme provides a minority group with vmequal access to the 
political process. In Campbell, this Court vacated and remanded 
“for further consideration in light of the position presented by the 
Acting Solicitor General in his brief of May 7, 1993.” In his brief, 
the Acting Solicitor General presented two positions. First, in the 
single-member context, the lower court must address “the ques­
tion whether additional compact and contiguous districts with 
black majorities could and should have been created in disputed 
areas to avoid dilution of black voting strength in violation of §2.” 
The brief made no mention of “proportional representation” as a 
cap on the inquiry (Brief at 7). Second, the district court’s iden­
tification of African American or white districts requires an in- 
depth analysis of each district that begins with voting-age popu­
lation and includes a district-specific analysis of the “extent to 
which voting is polarized” and “particularized consideration of 
historical voting patterns, election results, or other data to sup­
port treating identified districts as black ‘opportunity districts’ in 
the face of plaintiffs’ challenges [that less than 57% African- 
American voting-age population did not provide African-Ameri- 
can-opportunity wards]” (Brief at 14 and 15, n. 11). Accord Growe 
V. Emison, 113 S.Ct. 1075, 1085 (1993).

In this case, the lower court made no effort to determine 
whether the St. Louis ward boundaries diluted African American 
voting strength nor did it address the question of whether addi­
tional compact or contiguous districts with African American 
mtgorities could or should be drawn. The undisputed record below 
resolves both inquiries in the affirmative.

15

Supervision, 554 F.2d 139, 149 (5th Cir.), cert, denied, 434 
U.S. 968 (1977); Robinson v. Commissioners Court, 505 F.2d 
674, 679 (5th Cir. 1974).

For purposes of this case, the importance of the 
Voinovich approach lies in the fact tha t such manipulation 
of ward boundaries to “fracture” and “pack” minority popu­
lations can be used to dilute minority voting strength 
throughout a jurisdiction, while a t the same time providing 
for minority electoral success in a “proportional” number of 
districts. This can occur in three ways. First, the co-exis- 
tence of proportional representation and minority vote dilu­
tion is almost assured when the African American and 
white population are segregated and voting-age population 
is used to measure proportionality. Assume the following:

(a) a city of 1,200,000 in which African Americans com­
prise 20% of the total population and 12% of the 
voting-age population and whites comprise 80% of 
the total population and 88% of the voting age popu­
lation;

(b) one-half of the African Americans live in a geographi­
cally compact but segregated community at the 
northern end of the city and the other half live in a 
geographically compact but segregated community at 
the southern end; both communities are politically 
cohesive and there is a history of racial bloc voting; 
and

(c) the city has 8 single member districts. The 120,000 
African Americans who live on the north side reside 
in one district while the 120,000 African Americans 
who live on the south side are fractured evenly 
among four districts so tha t each district is 75% 
white and 25% African American.

This hypothetical map has provided “proportional repre­
sentation” for African Americans based on their percentage 
of the voting-age population (12% of the voting-age popula­
tion and 12% of the districts) within the city as a whole.



16

while denying equal opportunity to African Americans by 
flagrantly diluting the voting strength of the south side 
African American population.

Second, proportional representation and signiflcant vote 
dilution can occur under a single-member district plan 
whenever more than two racial groups reside within the 
jurisdiction. In such circumstances, district boundaries can 
be gerrymandered in order to insure that whites benefit 
from “surplus” minority populations that are insufficient to 
form their own districts.*®

Third, any single-member district map can selectively 
“fracture” and “pack” minority voters in particular districts 
in which racial bloc voting occurs, even as minority candi­
dates in other districts within the jurisdiction succeed due 
to the absence of racial bloc voting.**

Assume, for example, a city of 2,000,000 that is 40% white, 
40% African American, 10% Hispanic and 10% Asian and that is 
divided into 20 single member districts; all four groups are politi­
cally cohesive and there is a history of racial bloc voting; the 
housing patterns are such that both the whites and the African 
Americans live in a single, segregated community while the His- 
panics and Asians live in a number of small, dispersed commu­
nities; and finally, none of the Hispanic or Asian communities are 
large enough to create a district of their own, but can be included 
in either white or African American majority districts. In this 
hypothetical, ward boundaries can be manipulated to fracture or 
pack African Americans and to use other minority populations to 
help create additional white wards rather than additional African 
American wards. In our hypothetical, a map could be drawn that 
packs African Americans into 8 wards (40%), their “proportional” 
number of wards, while whites can be given 12 wards, a number 
far in excess of their “proportional” number.
“ For example, assume a jurisdiction with 8 single-member dis­
tricts in which the African American population totals 20% of a 
jurisdiction’s total population, that half of this African American 
population lives in an integrated north side where racial bloc 
voting is not present, and half live in a geographically concen­
trated area on the south side with virulent racial bloc voting. For

(continued...)

17

What all these examples show is that, in the single­
member, multi-district context, there is no necessary con­
nection between a particular group’s percentage in the city’s 
population and the number of wards where they would be 
“expected” to have voting control in the absence of mani­
pulative designing of boundaries. Conversely, if a particular 
group ends up with a “proportional” number of wards, that 
fact sheds little or no light on whether there has or has not 
been manipulation of ward boundaries to enhance or to 
dilute that group’s strength. 'That conclusion can only be 
drawn from a searching examination of “the totality of the 
circumstances,” including the geographic distributions and 
density of white, African American and other groups; the 
impact of the particular boundaries on white, African Amer­
ican and other groups; the process by which they were 
drawn; the constraints on possible alternative boundaries 
(for example, geographic features like rivers, railroad 
tracks, vacant industrial land, etc.); and all the other fac­
tors set forth in the Senate subcommittee report to the Vot­
ing Rights Act.

In this case, petitioner presented evidence of those facts 
that, according to Voinovich, should be of singular concern 
in a §2 challenge to a single-member, multi-district plan— 
namely that in drawing the boundaries of the 1991 map, 
defendants reduced African American population in specific 
wards to enhance white voting strength, and systematically 
“fractured” African American voters to cancel out their vot­
ing strength while maximizing the voting strength of the

" (...continued)
such a scenario, African Americans might be elected in two north 
side districts, thereby providing African Americans with propor­
tional representation as a whole, even while south side African 
Americans are flagrantly fractured and packed to prevent them 
from exercising an equal opportunity to elect representatives of 
their choice.



18

white population. In support of their allegations, plaintiffs’ 
expert focused on five of St. Louis’ 28 wards which comprise 
the central corridor and on the one ward that runs along 
the North Riverfront portion of St. Louis—the only geo­
graphical areas in St. Louis in which concentrations of 
African American and white population live in close enough 
proximity to each other to permit the drawing of wards that 
could be either white or African American (88-9).^  ̂At the 
time of redistricting, the incumbents in all six of these dis­
tricts were white.

According to plaintiffs’ expert, defendants used three 
techniques in order to preserve white incumbencies. First, 
the boundaries of the five central corridor wards were re­
drawn to reduce African American voting strength and in­
crease white voting strength.'® Next, ward boundaries were

In the context of a multiple-district plan, the vote dilution 
analysis must be district specific. See Gingles, supra.

The table below outlines the results of the 1991 Remap:
1980 Afr-Am Whites 1990

Ward Map % White % Afr-Am Moved Out Moved In Map % Afr-Am

6 14,100 37.1 59.6 663 1,357 14,746 52.4
7 13,298 49.9 46.6 500 1,330 14,278 39.9
8 14,661 58.0 37.3 809 (1,336) 14,052 44.6

17 15,680 46.1 48.8 1,980 790 14,279 39.7
28 17,522 64.4 31.9 776 (2,625) 14,071 34.1

To see the significance of these manipulations, consider the 
6th ward. Under the 1981 ward map, according to the 1990 cen­
sus, the 6th ward was 59.6% African American and it was 67 per­
sons short of the ideal ward population of 14,167. The ward did 
not have to be redrawn at all. Instead, defendants manipulated 
the ward boundaries to remove 663 African Americans and moved 
in 1,357 whites. Thus, a 59.6% African American majority became 
a 52.4% majority (which translates to a 46% voting-age minority). 
Had defendants reversed the flow, the 59.6% African American 
majority would have been elevated to over 66% (6,163, 169, 159- 
167; 171-74,121). Thus, African American voting strength was re­
duced from 13 voting-age majority wards and 1 plurality ward to 
12 voting age majority wards.

19

manipulated to “fracture” politically-cohesive, homogenous, 
African American populations, but not white populations.'^ 
Finally, defendants drew the boundaries of the 2nd Ward 
to maximize white voting strength.'®

Such systematic manipulation of ward boundaries to ad­
vantage one racial group over another is precisely what the 
Voting Rights Act is designed to prevent. Under the analy­
tical framework suggested in Voinovich, a court would have 
necessarily considered these facts in making its “totality of 
the circumstances” analysis. Under the lower court’s ap­
proach, on the other hand, such blatant manipulation of 
ward boundaries can be safely ignored. Neither the Act, nor 
Gingles, nor Voinovich, countenance such an approach. 
Because there is no necessary correlation between pro­
portional representation and the existence, or lack there­
of, of vote dilution in the single-member district context, 
this Court must clarify the applicability of the Gingles

‘‘ Within the five central corridor wards reside 71,426 persons, 
of whom 30,476 (42.2%) are African American. This area could 
have been redistricted to include two effective African American 
wards, and three effective white wards. Instead, the 1991 Map 
distributed the 30,476 African Americans in ineffective groupings 
among five white wards in percentages of 52.6 (but 45.9% of 
voting-age population), 40.2, 45.0, 40.1, and 34.3 of the total 
population of each ward respectively (5, 163, 164-7).
'® At the time of redistricting, the old 2nd Ward was 64.3% Afri­
can American (58.4% voting-age population) and was bordered on 
the east and north by the river and on its west by five wards that 
were 93.0%, 95.8%, 98%, 98.8% and 98.9% African American. De­
fendants could easily have drawn a compact ward with an effec­
tive African American voting-age majority. Instead, the 2nd ward 
was drawn in 1991 to run from the central corridor to the far nor­
thern boundary of the city in order to pick up as much white 
population as possible (39.5% of the voting age population) to pre­
serve the reelection prospects of the white incumbent (163-4; 169- 
70; 171-74; 120-1).



20

framework to §2 challenges to single-member district 
plans.*®

If the analytic framework set forth in Gingles is to apply to 
single-member district claims, then the lower courts need guid­
ance as to the factors that constitute “special circumstances” that 
override the sustained proportional representation defense. Writ­
ing for the majority in Gingles, Justice Brennan and Justice 
White concluded that a minority group’s proportional electoral 
success will usually be dispositive if it is sustained over a number 
of elections, and if plaintiffs fail to demonstrate '‘special circum­
stances that such sustained success does not accurately reflect the 
minority group’s ability to elect its preferred representatives.” 478 
U.S. at 77, n.38. This Court in Gingles specifically reserves the 
question of what such a category of “special circumstances” might 
include. Ibid.

The lower courts that have attempted to analyze single-mem­
ber plans within the Gingles framework are at odds over the ap­
plication of the “special circumstances” language. For example, in 
the instant case, the lower court seems to have accepted defen­
dants’ argument that “special circumstances” are limited to 
factors such as “bullet voting” because they were the only factors 
suggested by this Court in Gingles, 478 U.S. at 57, n.25. How­
ever, the “special circumstances” identified in Gingles while illus­
trative in the multi-member district context, have no relevance in 
the single-member district context. In Barnett, the court held that 
the “special circumstances” can only be those circumstances 
which indicate that proportional representation is “attributable 
to transient factors” . . . 835 F.Supp. at 1069, n.8. See also Nash, 
797 F.Supp. at 1499-1505. 'This analysis overlooks the fact the 
“special circumstances” discussed in Gingles come into play only 
a& r it has been found that sustained proportional representation 
exists.

Given this court’s emphasis in Voinovich on the importance of 
manipulation of ward boundaries in the single-member district 
plan, a showing that district boundaries have been manipulated 
to dilute a minority group’s voting strength and to advantage 
another racial group must, at the very least, constitute a “special 
circumstance” that overrides a showing of proportional electoral 
success. Only through such an approach can this Court’s holding 
in Gingles be reconciled with the language in Voinovich and the 
mandate set forth by Congress in its amendments to the Voting 
Rights Act. Guidance by this Court is needed.

21

C. The lower courts’ approach conflicts with the language
and purpose of the Voting Rights Act itself.
Section 2 of the Voting Rights Act states that “[t]he ex­

tent to which members of a protected class have been 
elected to office in the . . . political subdivision is one factor 
which may be considered” in the evaluation of vote dilution 
claims (emphasis added). ’This directive appears as part of 
the proviso which establishes that the members of the pro­
tected class have no per se right to proportional repre­
sentation under §2.

By treating minority electoral success as the only factor 
to consider, the lower courts’ opinion effectively turns the 
language of section 2 on its head. Under the lower courts’ 
approach, proportional representation effectively becomes 
a per se cap on a minority group’s electoral rights, leaving 
officials free to gerrymander district boundaries to maxi­
mize the voting strength of the jurisdiction’s majority 
voters.

Ironically, such an approach encourages precisely the 
kind of focus on proportional representation that the Voting 
Rights Act itself disavows. The Act makes clear that 
nothing in it is intended to guarantee proportional repre­
sentation to any group. Nor is the Act intended to guaran­
tee maximizing any particular group’s voting strength. 
What the Act is intended to guarantee—in each and every 
area of the city—is protection against unequal treatm ent in 
the political process on the basis of race.

The absolute defense of proportional representation 
recognized by the lower court moves the law away from this 
fundamental protection of the Act and the searching 
“totality of the circumstances” analysis this Court demands, 
and into the kind of overall numbers game that the Act 
itself and its critics condemn, whereby justice turns a blind 
eye to practices that systematically discriminate against 
minority voters, so long as white officials “give” them



22

roughly proportional representation. Such a balanced- 
bottom-line approach to analyzing voting rights claims has 
been soundly rejected by this Court in other contexts, 
Connecticut v. Teal, 457 U.S. 440, 448-54 (1982); Furnco 
Const. Corp. v. Waters, 438 U.S. 567,579-80 (1978); Phillips 
V. Martin Marietta Corp., 400 U.S. 542, 543-44 (1971); and 
has been rejected by the Seventh Circuit in the voting 
rights context. Baird v. Consolidated City o f Indianapolis, 
976 F.2d 357, 359 (7th Cir. 1992).

In this case, the demographics of St. Louis permits the 
drawing of ward maps that could produce from 17 white 
and 11 African American aldermen to 11 white and 17 Afri­
can American aldermen. The St. Louis map caps African 
American representation at 11 aldermen while preserving 
the ability of the similarly geographically compact white 
community to elect 17 aldermen. No one has disputed, at 
any point in this litigation, that if the map had been drawn 
without any consideration of racial demographics or if 
African Americans and whites were fractured and otherwise 
treated evenhandedly, there would be more wards in which 
African Americans would have the opportunity to elect their 
candidate of choice.

Such systematic and unequal treatment must not go un­
remedied. Without clear direction from this Court, the “pro­
portional representation defense” recognized by the lower 
court will mean exactly that. A writ of certiorari should be 
issued so tha t this Court can guide the lower courts in the 
proper analytical framework for the growing number of §2 
challenges to single-member, multi-district plans.

23

II.
THE LOWER COURTS’ HOLDING THAT PROPORTIONAL 
REPRESENTATION BARS A §2 INTENT CLAIM CON­
FLICTS WITH THE RULINGS OF THIS COURT AND WITH 
OTHER CIRCUITS.

To the extent tha t a redistricting plan is “conceived or 
operated as [a] purposeful device to further racial discrimi­
nation” it is actionable under §2 as well as the Fourteenth 
Amendment. City o f Mobile v. Bolden, 446 U.S. 55, 66-67 
(1980); see, e.g., Ketchum v. Byrne, 740 F.2d a t 1406; Major 
V. Treen, 574 F.Supp. 325, 350 (E.D. La. 1983) (three-judge 
court) (Intentional discrimination in the redistricting proc­
ess that violates the 14th Amendment is also actionable un­
der §2). This Court has long recognized that a law th a t in­
tentionally disadvantages a minority group to secure advan­
tage for whites is presumptively unlawful:

An official action, whether an annexation or otherwise, 
taken for the purpose of discriminating against Negroes 
on account of their race has no legitimacy at all under 
our constitution or under [the Voting Rights Act].

City o f Richmond v. United States, 422 U.S. 358, 378 
(1975). Because discrimination has no legitimacy under law, 
this Court has held that the defense of proportional repre­
sentation cannot foreclose a claim of intentional discrimina­
tion. See City o f Richmond, 422 U.S. at 372-79 (holding, in 
a case under Section 5 of the Voting Rights Act, tha t the in­
tent to discriminate through a municipal annexation is 
actionable even though the post-annexation districting plan 
provided African Americans with proportional representa­
tion); see also Baird, 976 F.2d at 360 (Proof of intentional 
discrimination overcomes the defense of proportional re­
presentation in §2 claim).

Indeed, this Court recently held in Shaw v. Reno, 113 
S.Ct. 2816 (1993), that white plaintiffs could pursue a cause 
of action under the Fourteenth Amendment by alleging that



24

intentional discrimination existed where a majority African 
American district was so irregular in shape that it could 
only be explained as an attempt at pure racial gerryman­
dering. The significance of Shaw  to this petition is that the 
white plaintiffs were permitted to press their intentional 
racial gerrymandering claim even though they enjoyed sub­
stantially more than proportional representation.*^

In this case, the lines of the 1991 map may not be so 
bizarre as to qualify under the standard set forth in Shaw. 
However, plaintiffs in this case are not relying solely on the 
facial irregularity of the map. Plaintiffs go well beyond the 
allegations offered by the Shaw  plaintiffs, and point to an 
array of facts that demonstrate that the boundaries were 
systematically manipulated to maximize white voting 
strength, preserve white incumbencies, and reduce African 
American voting strength. These facts are the classic 
indicia of an intentional racial gerrymander. See Gomillion 
V. Lightfoot, 346 U.S. 339 (I960).'* In addition, plaintiffs

u ^haw  objected in part on the ground that
white North Carolinians enjoyed representation in excess of their 
numbers in the population, and that the white plaintiffs in that 
case had alleged no discriminatory effect.

Nevertheless, Justice White, who had previously joined Justice 
Brennan in Gingles with respect to the importance of proportional 
representation in the multi-member district context, acknowl­
edged the possibility that the mere fact that a racial group enjoys 
proportional representation does not foreclose the possibility of 
mscriminatory effect, since in the single-member district context 
such districting might have both the intent and effect of 
packing’ members of that group so as to deprive them of any in­
fluence in other districts.” 113 S.Ct. at 2835, n. 6 (White J  dis­
senting).

o Arthur, Texas v. United States, 517

U.S. 159 (1982) (reduction of African American voting strength
****«̂er Voting RigMs

Act), Ketchum, 740 F.2d at 1408 (discrimination based on an ulti-
(continued...)

25

offered evidence of racial bloc voting; depressed socioeco­
nomic status attributable to a history of discrimination in 
education, housing and employment; and a history of dis­
crimination in electoral matters. These factors also support 
a finding of intentional discrimination. Rodgers v. Lodge, 
458 U.S. 613, 622-27 (1982).

It would be a perversion of justice to rule tha t white 
plaintiffs in North Carolina may challenge a map under the 
14th Amendment that was drawn by the State in order to 
remedy perceived inequities between African American and 
white voters, solely because the map is inartfully drawn, 
while a t the same time barring a §2 intent claim that pro­
vides detailed evidence of systematic boundary manipu­
lation and “fracturing” to purposely diminish African Amer­
ican voting strength. Yet this is precisely the interpretation 
Shaw  and Gingles have received in the lower courts. In this 
case, the lower courts refused to even consider plaintiffs’ 
allegations because of a finding of proportional representa­
tion. Likewise, in Barnett, the court held that once propor­
tional representation is established, plaintiffs can no longer 
assert an intent to dilute claim. According to the Barnett 
court, the only intent claims available to plaintiffs are chal­
lenges (a) to practices that “actually bar minorities from 
voting . . .  or interfere with their right to register,” or (b) to 
a reapportionment scheme “so extremely irregular on its 
face that it can be viewed as an effort to segregate the 
races.” 835 F.Supp. at 1068-70.

The lower court’s summary disposition of plaintiffs’ in­
tentional discrimination claim by finding that African

(...continued)
mate objective of keeping certain incumbent whites in office is in­
distinguishable from discrimination borne of pure racial animus); 
Rybicki v. State Board of Elections, 574 F.Supp. 1082, 1108-09,’ 
(N.D. 111. 1982) (three-judge court); Garza v. City of Los Angeles’ 
918 F.2d at 771.



26

Americans were provided with the opportunity to achieve 
proportional representation under the challenged plan 
squarely conflicts with this Court’s pronouncements in 
Richmond and Shaw. A writ of certiorari should issue to 
clarify the relationship between proportional representation 
and claims of intentional vote dilution.

III.
IF PROPORTIONAL REPRESENTATION IS TO SERVE AS 
A DEFENSE TO VOTING RIGHTS CLAIMS, THE LOWER 
COURTS’ USE OF VOTING-AGE POPULATION RATHER 
THAN TOTAL POPULATION AS THE MEASURE OF PRO­
PORTIONAL REPRESENTATION RAISES AN IMPOR­
TANT ISSUE ON WHICH LOWER COURTS HAVE TAKEN 
DIVERGENT POSITIONS.
A. This Court should provide direction to lower courts 

who are in conflict regarding the proper measure of 
proportional representation.
Lower courts that have attempted to apply the Gingles’ 

proportional representation analysis to single-member dis­
trict plans cannot agree on how it is to be measured. In the 
instant case as well as in Rural West Tennessee, supra, the 
courts used voting-age population as the appropriate mea­
sure. In Nash, 797 F.Supp. a t 1498-1502; Jeffers, 730 
F.Supp. at 198; and Barnett v. Daley, 809 F.Supp. 1323, 
1329 (N.D. 111. 1992), the courts relied upon Gingles and 
used total population as the proper measure of proportional 
representation. In the DeGrandy case currently pending be­
fore this court, appellants argue that this court should use 
citizenship population as the proper measure. If lower 
courts are to use proportional representation as an impor­
tant factor in analyzing vote dilution claims in the single­
member, multi-district context, a writ of certiorari should 
be issued to resolve this conflict.

27

B. The language of the Act and this Court’s precedents in­
dicate that total population is the proper measure of 
proportionality.
The lower courts’ use of voting-age population to mea­

sure proportional representation directly conflicts with the 
language of §2 and decisions of this Court which hold tha t 
where proportional representation is relevant, total popula­
tion is the proper measure.*®

The starting point is the Act itself. Section 2 defines a 
violation in terms of a showing that the electoral scheme 
provides minority citizens with less opportunity “than other 
members of the electorate” to participate in the political 
process and to elect candidates of their choice. It then dis­
avows a minority’s right to proportional representation in 
the following language: “Nothing in this section establishes 
a right to have members of a protected class elected in 
numbers equal to their proportion in the population” (Em­
phasis added). Clearly, §2 defines proportional represen­
tation by “population”, not “voting-age population” or “the 
electorate.”

Additionally, when Congress amended §2 in 1982, it ex­
pressly noted that: “The principle that the right to vote is

The lower court’s use of voting-age stems simply from its ob­
servation that “voting age is an appropriate measure for voting 
rights cases.” (App. B-9) Voting-age population is in fact one of 
the important factors in determining whether a minority’s total 
population within a specific district is sufficient to provide it with 
a reasonable opportunity to elect its preferred candidates. See, 
e.g., McNeil, supra; Jeffers v. Clinton, 730 F.Supp. at 199. But it 
has no relevance to a proportional representation analysis. Pro­
portional representation is relevant only to the extent that it is 
a surrogate for a group’s undiluted voting strength. Since total 
population is used to reapportion single-member districts, how­
ever, a minority’s total population figures are the only population 
figures that determine the number of effective minority wards 
that can be drawn and thereby measure the group’s undiluted 
voting strength.



28

denied or abridged by dilution of voting strength derives 
from the one person, one vote reapportionment case of Rey­
nolds V. Sim s.” S. Rep. No. 417, 97th Cong., 2d Sess. 19 re­
ported in 1982 U.S. Code Cong, and Admin. News 177,196. 
In Reynolds v. Sims, 377 U.S. 535,560-61 (1964), this Court 
stated “[t]he fundamental principal of representative 
government is one of equal representation for equal num­
bers of people . . . .” This “one-person, one-vote” principle 
is based on total population. In Kirkpatrick v. Preisler, 394 
U.S. 526, 531 (1969), the Court recognized that “equal re­
presentation for equal numbers of people is a principle de­
signed to prevent debasement of voting power and diminu­
tion of access to elected officials.” Reapportionment on the 
basis of total population guarantees equal representation 
and equal access to our elected officials.

In Gingles, this Court applied this principle of “propor­
tional representation” to the Voting Rights Act and used 
total population, not voting-age population, as its measure. 
According to the Court in Gingles, the test for establishing 
sustained electoral success of the minority community in a 
multi-member district was whether “black residents” had 
proportional representation. 478 U.S. at 74-77 (emphasis 
added); 478 U.S. a t 74, n. 35; see also United Jewish Or­
ganizations V. Carey, 430 U.S. 144, 166 (1977) (a claim un­
der §5 of the Act). The Court then observed that in North 
Carolina’s 23rd district, “the last six elections have resulted 
in proportional representation for black residents.” Gingles, 
478 U.S. at 77 (emphasis added). It determined proportional 
representation by measuring the minority group’s percent­
age of the total population (36.3%) with its electoral success 
rate (one of three electoral representatives). Gingles, 478 
U.S. at 74, n. 35, and 478 U.S. a t 104 (O’Connor, J., concur­
ring); see Garza v. County o f Los Angeles, 918 F.2d a t 776 
(the use of voting-age population rather than total popula­
tion discriminates against minorities by diluting “the access 
of voting-age [minorities]. . .  to their representatives, and

29

would similarly abridge the right o f . . . minors to petition 
their representatives”). As long as the wards are appor­
tioned on the basis of total population, proportional repre­
sentation must be measured by the same population base.

In the end, there is only one reason for using voting-age 
population as the measure of proportional representation: 
it permits the white majority to provide the minority com­
munity with the fewest number of districts while still im­
munizing their handiwork from a §2 challenge.^ This result 
conflicts with the repeated admonition of this Court th a t §2 
of the Act “should be interpreted in a manner tha t provides 
‘the broadest possible scope in combatting racial discrimina­
tion.” Chisom V. Roemer, 111 S.Ct. 2354, 2368 (1991), 
quoting Allen v. State Board o f Education, 393 U.S. 544, 
567 (1969).

IV.
THIS CASE RAISES ISSUES SIMILAR TO THOSE RAISED 
IN DEGRANDY v. JOHNSON MAKING DEFERRAL AP­
PROPRIATE.

On February 22, 1993, this Court noted probable juris­
diction in the Florida state legislative redistricting case. De- 
Grandy v. Johnson, No. 92-519, 113 S.Ct. 1249 (1993). The 
issues in DeGrandy, as here, are whether (a) proportional 
representation is a defense to a §2 challenge to a single­
member, multi-district plan; and if so, (b) what weight is it 
to be given within a “totality of the circumstances” analysis; 
(c) is proportional representation to be determined on a ju r­
isdiction-wide basis or on a more localized basis, (i.e..

“  The fundamental unfairness in using voting-age population to 
further reduce minority representation is compoimded by the fact 
that there is clear and convincing evidence that African American 
population was seriously under-coimted in the last census. See 
City of New York v. U.S. Dept, of Commerce, 822 F.Supp. 906, 913 
(E.D.N.Y. 1993); Assembly of State of California v. U.S. Dept, of 
Commerce, 968 F.2d 916, 917 (9th Cir. 1992).



30

should the court look at the City of St. Louis as a whole or 
focus on the central corridor area where the boundaries 
were manipulated to dilute minority voting strengths); and 
(d) is it to be measured by total population or some other 
population figure. These issues will have a significant bear­
ing on the proper resolution of all single-member district 
claims including the St. Louis reapportionment. For these 
reasons, deferral is appropriate.

CONCLUSION
For all the reasons stated above, a writ of certiorari 

should be issued to review the judgment and opinion of the 
Court of Appeals for the Eighth Circuit. APPENDICES

Respectfully submitted,

JUDSON H. MINER 
Counsel of Record 

GEORGE F. GALLAND, JR. 
JEFFREY I. CUMMINGS 
BARACK OBAMA 
DAVIS, MINER, BARNHILL 

& GALLAND 
14 West Erie Street 
Chicago, IL 60610 
(312) 751-1170
ELAINE R. JONES 

Director- Counsel 
THEODORE M. SHAW 
CLYDE MURPHY 
CHARLES STEPHEN RALSTON 
GAILON W. McGOWEN, JR. 
NAACP Legal Defense and 

Education Fund, Inc.
99 Hudson St., Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Counsel for Petitioners



INDEX TO APPENDICES

P age
Opinion of the Court of Appeals for the Eighth Cir­
cuit and Court of Appeals’ Order Denying Peti­
tioners’ Suggestion for Rehearing en b a n c ........  A-1

Opinion of the District Court Granting Defendants’
Motion for Summary Judgment ............................  B-1

Opinion of the District Court Denying Plaintiffs’
Rule 59(e) Motion to Alter or A m end................  C-1

Section 2 of the Voting Rights Act, as Amended,
42 U.S.C. §1973 .......................................................... D-1



A-1

APPENDIX A

AFRICAN AMERICAN VOTING RIGHTS LEGAL DE­
FENSE FUND, INC.; Charles Q. Troupe; Angela D. 
Walton, Plaintiffs,
Freeman Bosley, Jr.; Bertha Mitchell; Appellants,

Ida Ford; Charles Parker; Albert Banks; Carol Page; 
Luretta Hawkins; Elmer Otey; Jacqueline McGill, 

Plaintiffs,
Sharon Tyus, Appellant,

Laima Gordon; Alexis Johnson, Plaintiffs,
Irving Clay; Claude Taylor, Appellants,

V.

Thomas A. VILLA, in his capacity as President, Board 
of Aldermen, City of St. Louis, Missouri; Vincent C. 
Schoemehl, in his capacity as Mayor, City of St. Louis, 
Missouri; Board of Aldermen, City of St. Louis, Missouri; 
City of St. Louis, Appellees.

American Civil Liberties Union, Amicus Cimiae.
No. 92-3826.

United States Court of Appeals, Eighth Circuit. 
Submitted May 12, 1993.

Decided Aug. 4, 1993.
Order Denying Rehearing and Rehearing En Banc 

Nov. 1, 1993.
Appeal from the United States District Court for the 

Eastern District of Missouri; Hon. Jean C. Hamilton, Dis­
trict Judge.

Judson Miner, Chicago, IL, argued for appellants.
Donna A. Smith, St. Louis, MO, on brief for amicus 

curiae American Civ. Liberties Union.



A-2

Julian Bush, St. Louis, MO, argued (James J. Wilson, 
Edward J. Hanlon and Michael Garvin, on brief), for ap­
pellees.

Before BOWMAN, Circuit Judge, HENLEY, Senior Cir­
cuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

Plaintiffs-appellants appeal from the district court’ŝ  
order granting summary judgment to defendants-appellees, 
the Mayor of the City of St. Louis (the City), the Presi­
dent of the Board of Aldermen, and the Board of Aider- 
men. Appellants brought this action claiming the City’s 
redistricting ordinance which established ward boundary 
lines for selecting aldermen and for selecting political par­
ty committees violated § 2 of the Voting Rights Act and 
the First, Thirteenth, Fourteenth, and Fifteenth Amend­
ments. We affirm.2

Appellants claim the district court erred by: (1) apply­
ing the affirmative defense of sustained proportional rep­
resentation to the § 2 claim; (2) measuring proportional 
representation by comparing the minority group’s percent­
age of the voting age population to the minority group’s 
percentage of elected representatives; (3) finding the City’s 
African-American community controls twelve wards and 
is thus proportionally represented; (4) finding the City’s 
African-American community has had a sustained history 
of electoral success evidenced by proportional representa­
tion throughout the 1970s and 1980s; and (5) holding there 
are no special circumstances showing the Afiican-American

‘ The Honorable Jean C. Hamilton, United States District Judge 
for the Eastern District of Missouri.
* The motion of appellants for supplemental briefing is denied as 
moot.

A-3

community’s sustained electoral success does not accurate­
ly reflect the community’s ability to elect its preferred 
representatives.

We find no error of law or clearly erroneous findings 
of fact in the district court’s well-reasoned memorandum, 
and an opinion would have no precedential value. We af­
firm the judgment of the district court. See 8th Cir.R. 
47B.

Before: RICHARD S. ARNOLD, Chief Judge, McMILLIAN, 
JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MA­
GILL, BEAM, LOKEN, HANSEN, and MORRIS SHEP­
PARD ARNOLD, Circuit Judges.

ORDER
Nov. 1, 1983.

The suggestion for rehearing en banc is denied. Judge 
McMillian would grant the suggestion.

The petition for rehearing by the panel is also denied.

McMil l ia n , Circuit Judge, dissenting.

I respectfully dissent fi-om this court’s denial of the sug­
gestion for rehearing en banc.

Plaintiffs challenge the City of St. Louis’ 1990 redistrict­
ing map for aldermanic wards as violative of § 2 of the 
Voting Rights Act and the Clonstitution. The district court 
granted defendants’ motion for summary judgment and 
this court summarily affirmed. This case raises important 
legal and factual issues under the Voting Rights Act. In 
my view, genuine issues of material fact exist making this 
case wholly unsuited for summary judgment. The district



A-4

court gave no consideration to, and made no findings con­
cerning, serious allegations and evidence of a violation of 
§ 2 of the Voting Rights Act. In particular, I believe the 
district court should have made detailed findings regard­
ing whether the City of St. Louis intentionally created 
its aldermanic districts to dilute black voting strength in 
violation of Section 2. “Plaintiffs must demonstrate that, 
under the totality of the circumstances, the devices result 
in unequal access to the electoral process.” Thornburg v. 
Gingles, 478 U.S. 30, 46 (1986). The district court and the 
panel deprived plaintiffs of such an opportunity.

B-1

APPENDIX B

[Filed June 17, 1992]

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 

EASTERN DIVISION

AFRICAN AMERICAN VOTING 
RIGHTS LEGAL DEFENSE 
FUND, INC., et al..

Plaintiffs, )
vs.

THOMAS A. VILLA, et al..

Defendants. )

Cause No.
) 4:92CV00044 JCH
)
)
)

MEMORANDUM AND ORDER

This m atter is before the Court on Defendants’ motion 
for summary judgment.

Plaintiffs filed this action seeking a declaratory judg­
ment and iiyunctive relief. Plaintiffs allege the City’s ward 
boundary lines for selecting aldermen and for selecting 
political party committees violate the F irst Amendment, 
the Thirteenth Amendment, the Foiuteenth Amendment, 
the Fifteenth Amendment and the Voting Rights Act.

Defendants contend that the populations of the city 
wards are sufficiently equal to meet requirements of the



B-2

Fourteenth Amendment and that the boundary lines un­
der the redistricting plan do not violate the Voting Rights 
Act because the current plan and all plans since 1971 have 
provided proportional representation. Defendants further 
contend that the Voting Rights Act is unconstitutional and 
that Plaintiffs’ Thirteenth Amendment claim should be dis­
missed.

This Court may grant a motion for summary judgment 
if “the pleadings, depositions, answers to interrogatories, 
and admissions on file, together with the affidavits, if any, 
show that there is no genuine issue as to any material 
fact and that the moving party is entitled to judgment 
as a m atter of law.” Fed. R. Civ. P. 56(c); Celotex Corp.
V. Catrett, 477 U.S. 317, 322 (1986). The substantive law 
determines which facts are critical and which are irrele­
vant. Only disputes over facts that might affect the out­
come will properly preclude summary judgment. Ander­
son V. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Sum­
mary judgment is not proper if the evidence is such that 
a reasonable jury could return a verdict for the nonmoving 
party. Id.

A moving party always bears the burden of informing 
the Court of the basis of its motion. Celotex Corp., 477 
U.S. at 323. Once the moving party discharges this bur­
den, the nonmoving party must set forth specific facts 
demonstrating that there is a dispute as to a genuine issue 
of material fact, not the “mere existence of some alleged 
factual dispute.” Fed. R. Civ. P. 56(c); Anderson, 477 U.S. 
at 247. The nonmoving party may not rest upon mere al­
legations or denials of his pleading. Id. at 256.

In passing on a motion for summary judgment, the 
Court must view the facts in the light most favorable to 
the nonmoving party, and all justifiable inferences are to

B-3

be drawn in his favor. Id. a t 255. The Court’s function 
is not to weigh the evidence but to determine whether 
there is a genuine issue for trial. Id. at 249.

CONSTITUTIONAL CLAIMS

Reapportionment is a legislative function. Wise v. Lips­
comb, 437 U.S. 535, 539 (1978). The Supreme Court has 
recognized that the legislature is “best situated to iden­
tify and then reconcile traditional state policies within the 
constitutionally mandated framework of substantial popula­
tion equality.” Connor v. Finch, 431 U.S. 407 415-16 
(1977).

In Reynolds v. Sims, 377 U.S. 533 (1964), the Supreme 
Court recognized that every qualified resident has the con­
stitutional right to a vote substantially equal in weight 
to the vote of every other resident in an election for state 
legislators. Reynolds v. Sims, 377 U.S. at 568. The con­
cept of “one-person-one-vote” also applies to units of local 
government within a state. Avery v. Midland County, 390 
U.S. at 474, 484-85 (1968). Particular circumstances and 
needs of a local community as a whole may at times jus­
tify departures from strict equality. Abate v. Mundt, 403 
U.S. 1 ^ , 185 (1971). Less fundamental concerns, however, 
must be subordinated to the constitutional requirement 
of “one-person-one-vote.” Kirksey v. Board o f Supervisors, 
554 F.2d 139, 151 (5th Cir. 1977), cert, denied. Board o f 
Supervisors v. Kirksey, 434 U.S. 968 (1977).

Population is the starting point for consideration and 
the controlling criterion for judgment in apportionment 
decisions. Reynolds v. Sims, 377 U.S. at 567. Population 
alone is the sole criterion of constitutionality in congres­
sional reapportionment. Mahan v. Howell, 410 U.S. 315, 
322 (1973). A legislative body reapportioning state legis-



B-4

lative districts, however, has broader latitude. Id. A state 
legislative reapportionment plan having a maximum popu­
lation deviation ranging up to ten percent falls within the 
category of minor deviations requiring no legislative justi­
fication. Brown v. Thomson, 462 U.S. 835, 842 (1983).

Defendants submitted the affidavit of Donald L. Davison 
(hereinafter Davison) in support of their contention that 
the populations of the wards are sufficiently equal to meet 
the requirements of the Fourteenth Amendment. Davison 
relied on data compiled by the Bureau of Census to con­
duct his analysis. (Davison Affidavit 1 3) Of the twenty- 
eight wards, the boundaries of twenty-four are cotermin­
ous with census blocks. In two cases where a boundary 
cut across a single census block, Davison relied upon his 
own personal inspection and upon the affidavit of Stephen 
Umscheid (hereinafter Umscheid) of the Community De­
velopment Agency. (Davison Affidavit ^3) The total popu­
lation is 396,685. The ideal ward population is 14,168, the 
total population divided by the number of wards. Devia­
tion from the ideal is determined by subtracting the ideal 
from the actual ward population. The percentage devia­
tion for each ward is determined by dividing the devia­
tion by the ideal. The overall range or maximum devia­
tion is the sum of the deviation of two wards which estab­
lish the upper and lower deviations for all wards. (Davison 
Affidavit Ex. B) The average percent deviation for all 
twenty-eight wards in St. Louis under the 1991 redistrict­
ing plan is 2.83% and the overall range or maximum devi­
ation is 8.3%. (Davison Ex. B, Table 2)

Plaintiffs did not file a memorandum in opposition to 
the summary judgment. They did file the affidavit of their 
expert Charlene L. Jones (hereinafter Jones). Jones’ affi­
davit does not refute the figures in the Davison affidavit. 
Jones merely challenges the method used in arriving at

B-5

the figures and states that because four wards did not 
contain whole census blocks that compliance by the plan 
with the Fourteenth Amendment is “incapable of being 
ascertained.’’ Jones, who states in her affidavit that she 
reviewed the affidavit and deposition of Stephen Umscheid, 
also asserts that Umscheid testified he “adjusted census 
data” based on aerial photographs. No such statem ent 
concerning adjusted data is included in the Umscheid af­
fidavit contained in the record before the Court. That af­
fidavit does explain the method used for apportioning 
population when a ward line split census blocks. More­
over, no deposition of Stephen Umscheid is contained in 
the record before this Court.

There is no requirement that the federal decennial census 
blocks be used in reapportionment. B um s v. Richardson, 
384 U.S. 73, 91 (1966). Plaintiffs have not contended that 
the method used to apportion population to wards where 
census blocks were split is unreasonable or erroneous or 
that errors would cause the maximum deviation to be 
greater than 10%. Plaintiffs therefore have not raised an 
issue for trial. The maximum deviation of 8.3% is well 
within the 10% allowed under the law. Defendants shall 
have summary judgment on Plaintiffs’ Fourteenth Amend­
ment claim.

Plaintiffs also contend the plan violates the Thirteenth 
Amendment. Plaintiffs have pleaded no facts to support 
such a contention and Plaintiffs’ opposition affidavit fails 
to address the issue. Defendants shall have summary judg­
ment on Plaintiffs’ Thirteenth Amendment claim. Further­
more, Plaintiffs fail to state a claim for relief under the 
F irst Amendment, the Thirteenth Amendment, and the 
Fourteenth Amendment. They have pleaded no statutory 
provision allowing a civil action to redress constitutional 
violations.



B-6

VOTING RIGHTS ACT CLAIM

The Voting Rights Act as amended in 1982 provides in 
pertinent part:

No voting qualification or prerequisite to voting or 
standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision in a man­
ner which results in a denial or abridgement of the 
right of any citizen of the United States to vote on 
account of race or color . . . .

42 U.S.C.A. §1973(a) (1991 Supp.). A violation of the 
Voting Rights Act is established by showing that the 
“political processes leading to nomination or election . . . 
are not equally open to participation” by the protected 
class in that “its members have less opportunity than 
other members of the electorate to participate in the 
political process and to elect representatives of their 
choice.” 42 U.S.C.A. §1973(b) (1991 Supp.). The Voting 
Rights Act specifically provides that the act does not es­
tablish “a right to have members of a protected class 
elected in numbers equal to their proportion in the popu­
lation.” 42 U.S.C.A. §1973(b) (1991 Supp.). Evidence of 
discriminatory intent is no longer necessary to prove a 
violation; discriminatory results are sufficient proof. Ket- 
chum V. Byrne, 740 P.2d 1398, 1403 (7th Cir. 1984), cert, 
denied, City Council o f  Chicago v. Ketchum, 471 U.S. 
1135 (1985).

A number of courts have concluded that more than a 
simple majority is required for historically disadvantaged 
minorities to have a practical opportunity to elect candi­
dates of their choice. E.g., Ketchum v. Byrne, 740 F.2d 
at 1413; Kirksey v. Board o f Supervisors, 554 F.2d at 149- 
50; Smith v. Clinton, 687 F.Supp. 1361, 1362-63 (E.D. Ark. 
1988), affd, Clinton v. Smith, 488 U.S. 988 (1988); DUlard 
V. Crenshaw County, 649 F.Supp. 289, 298 (M.D. Ala.

B-7

1986) , renmnded on other grounds, 831 F.2d 246 (11th Cir.
1987) . Courts have frequently used sixty-five percent as 
a g^uideline for the proportion of minority popidation rea­
sonably required to ensure minorities a fair opportunity 
to elect a candidate of their choice. The sixty-five per­
cent figure is derived by augmenting parity* five percent 
for the relative youth of the minority population, five per­
cent for its low voter registration, and five percent for 
its low voter turnout.* Ketchum v. Byrne, 740 F.2d at 
1415. The sixty-five percent population figure is a mere 
guideline.

Defendants contend that as a m atter of law Plaintiffs 
cannot establish their Voting Rights Act claim because 
evidence of persistent proportional representation estab­
lishes that there is no violation of Section 2. In Thorn­
burg V. Cringles, 478 U.S. 30 (1986), the Supreme Court 
noted that “persistent proportional representation is in­
consistent with appellees’ allegation that the ability of 
black voters in District 23 to elect representatives of their 
choice is not equal to that enjoyed by the white major­
ity .” Thornburg v. dingles, 478 U.S. 30, 77 (1986) (multi­
member district case). In Harvell v. Ladd, 759 F.Supp. 
525 (E.D.Ark. 1991), sustained electoral success by black 
candidates led the court to conclude that black voters did 
not have less opportunity to elect representatives of their 
choice. Harvell v. Ladd, 759 F.Supp. 525, 529 (E.D. Ark.

‘ The court in Ketchum v. Byrne said that the 65% guideline was 
derived by augmenting a simple msgority.
* The 65% figure is used by the Justice Department as a tlmesh- 
old population figure for finding impermissible retrogression of 
minority voting strength in redistricting matters reviewed under 
Action 5 of the Voting Rights Act. James v. City of Sarasota, 
611 F.Supp. 25, 32 (M.D. Fla. 1985).



B-8

1991) The decision referred to sustained electoral success 
as the overriding factor. Id. In Collins v. City o f Norfolk, 
679 F.Supp. 557 (E.D. Va. 1988), rev’d on other grounds, 
883 F.2d 1232 (4th Cir. 1989), the court concluded that 
the plurality in Gingles established that proportional rep­
resentation bars a Section 2 claim. Collins v. City o f Nor­
folk, 679 F.Supp. 557, 563 (E.D. Va. 1988), rev’d on other 
grounds, 883 F.2d 1232 (4th Cir. 1989).

Based upon the 1990 census data there are twelve 
wards in which black voters should be able to elect repre­
sentatives of their choice. (Davison affidavit 5 4) The 
twelve “safe” wards represent 42.86% of the twenty-eight 
wards in the city. The size of the black voting age popu­
lation in the city is 42.67%. (Davison affidavit 14; Davison 
Affidavit Ex. C) Under the 1981 plan the black voting 
age population was 40.2% and the black representation 
was 39.29%. (Davison affidavit 15; Davison affidavit Ex. 
D) Under the 1971 plan the black voting age population 
was 34.95% and the black representation was 35.71%. 
(Davison affidavit 16 [p.6]; Davison affidavit Ex. E)

Plaintiffs do not refute that the black aldermen serv­
ing from the 1970s to present were and are represen­
tatives of the minority community’s choice. They do not 
suggest special circumstances that would demonstrate that 
the apparent sustained success does not accurately reflect 
the minority’s ability to elect its preferred representatives. 
Instead, Plaintiffs submit a largely conclusory affidavit 
containing one legal argument that the use of voting popu­
lation instead of total population in determining propor­
tionate representation is constitutionally defective based 
on the holding in Preisler v. Mayor o f City o f St. Louis, 
303 F.Supp. 1071 (E.D. Mo. 1969). However, Preisler in­
volved an analysis imder the Fourteenth Amendment and

B-9

addressed what measime of population is appropriate for 
determining population under the requirements of the 
Fourteenth Amendment. Voting age is an appropriate 
measure for Voting Rights Act cases. See, e.g., McNeil 
V. Springfield Park DisL, 851 F.2d 937, 945 (7th Cir.
1988), cert, denied, 490 U.S. 1031 (1989).

Defendants have demonstrated and Plaintiffs have failed 
to refute that sustained electoral success by black candi­
dates defeats Plaintiffs’ claim that black voters have less 
opportunity to elect representatives of their choice. De­
fendants shall have summaiy judgment on Plaintiffs’ claim 
pursuant to the Voting Rights Act. The constitutional is­
sues raised in Defendants’ memorandum need not be ad­
dressed.

ACCORDINGLY,

IT IS HEREBY ORDERED that Defendants’ motion for 
summary judgment is GRANTED.

Dated this 17th day of June, 1992.

Isl J ean C. H amilton
United States District Judge



C-1

a p p e n d ix  c

[Filed November 2, 1992]

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 

EASTERN DIVISION

AFRICAN AMERICAN VOTING 
RIGHTS LEGAL DEFENSE 
FUND, INC., et al„

vs.
Plaintiffs, ) Cause No.

) 4:92CV00044 JCH

THOMAS A. VILLA, et al..

Defendants. )

MEMORANDUM AND ORDER

This m atter is before the Court on Plaintiffs’ Motion 
to Alter or Amend this Court’s June 17, 1992 Judgment 
pursuant to Federal Rule of Civil Procedure 59(e).

Plaintiffs filed this action seeking declaratory and iiyunc- 
tive relief on January 13, 1992. Plaintiffs alleged that the 
ward boundary lines of the City of St. Louis which are 
used for the selection of alderman and political party 
committees violate the First Amendment, the Thirteenth 
Amendment, the Fifteenth Amendment, and the Voting 
Rights Act. This Court granted summary judgment for



C-2

Defendants on June 17, 1992. The Court reasoned inter 
alia, that Defendants demonstrated and Plaintiffs failed 
to refute that the “sustained electoral success by black 
candidates defeats Plaintiffs’ claim that black voters have 
less opportunity to elect representatives of their choice.”

Plaintiffs move the Court to reconsider its judgment 
granting summary judgment to Defendants, asserting that 
the Court “was misled by Defendants’ inaccurate and in­
complete presentation.” Defendants oppose the motion, con­
tending that “[a]ll of what is argued in the motion is or 
could have been argued before judgment was entered.” 
Plaintiffs Rule 59(e) motion was filed within the ten day 
time limit.

Under Federal Rule of Civil Procedure 59(e), a district 
court has broad discretion in determining whether to 
reconsider a decision. Roudybush v. Zabel, 813 F.2d 173, 
178 (8th Cir. 1987); Harris v. Arkansas Dep't o f Human 
Services, 771 F.2d 414, 416-17 (8th Cir. 1985); Pitts v. 
Electro-Static Finishing, Inc., 607 F.2d 799, 803 (8th Cir. 
1979). Rule 59(e) was adopted to make clear that a dis­
trict court possessed the power to rectify its own mis­
takes in the period immediately following the entry of 
judgment. White v. New Hampshire Dep't o f Employment 
Sec., 455 U.S. 445, 450 (1982). A Court may use Rule 59(e) 
to set aside a judgment in its entirety. Sanders v. Clemco 
Indus., 862 F.2d 161, 168, n.l3 (8th Cir. 1988).

Under Rule 59(e), the court may reconsider matters 
properly encompassed in a decision on the merits. White, 
455 U.S. at 451. A Rule 59(e) motion may not encompass 
new issues. Ray E. Friedman & Co. v. Jenkins, 824 F.2d 
657, 660 (8th Cir. 1987) (Rule 59(e) could not be used to 
assert a counterclaim).

C-3

A motion to alter or amend under Rule 59(e) must rely 
on one of three major grounds: (1) an intervening chanee 
in controlling law; (2) the availability of new evidence m t  
available previously; or (3) the need to correct a clear 
error of law or prevent manifest injustice. Bannister v 

No^87-0637-CV-W 1992 U.S. Dist. LEXIS
7335, at 2 (W.D. Mo. Apr. 30, 1992) (citations omitted).

Here, Plaintiffs appear to rely on the third ground to 
support their motion to alter or amend. Plaintiffs assert 
that the Court’s judgment was based on the Defendants’ 
incorrect argument that “there can be no voting rights 
violation if a ward map provides a minority community 
with the possibility of achieving proportional representa­
tion based on the minority’s percentage of the voting-age 
population.” The issue before the Court is whether Plain­
tiffs have shown a clear error of law in the order grant­
ing summary judgment for Defendants.

Plaintiffs challenge to the Court’s findings concerning 
the electoral success of the African-American community. 
The challenge, however, is dependent on additional facts 
which Plaintiffs failed to produce in response to Defen­
dants’ summary judgment motion. Plaintiffs have shown 
no clear error of law on the record before the Court when 
the Court entered its order of June 17, 1992. By their 
own admission. Plaintiffs failed to fully respond to Defen­
dants’ summary judgment motion, they filed only an affi­
davit by their expert. Plaintiffs now attem pt to amend 
the record. Because Plaintiffs have shown no reason why 
the facts and issues now presented could not have been 
produced at an earlier time, it is inappropriate to recon­
sider the judgment based on an amended factual record.

Plaintiffs also contend that the Court was in error in 
using voting-age population, rather than total population.



C-4

to measure proportional representation. Voting-age popula­
tion is the pertinent population for Voting Rights Act pur­
poses. Marvell v. Ladd, 958 F.2d 226, 227-28 (8th Cir. 
1992).

After carefully reviewing the briefs filed by the parties, 
the Court concludes that Plaintiffs are not entitled to re­
lief from summary judgment under Rule 59(e). Plaintiffs’ 
Motion to Alter or Amend this Court’s June 17,1992 Judg­
ment pursuant to Federal Rule of Civil Procedure 59(e) 
will be denied because none of the three grounds for the 
motion have been established. First, there has been no 
intervening change in controlling law. Second, Plaintiffs 
have not established the availability of any new evidence 
which was not available previously. Third, there was no 
clear error of law or manifest injustice in granting Defen­
dants motion for summary judgment.

ACCORDINGLY,

IT IS HEREBY ORDERED that Plaintiffs’ Motion to 
Alter or Amend this Court’s June 17, 1992 Judgment is 
DENIED.

Dated this 2nd day of November, 1992

lal J ean C. H amilton
United States District Judge

D-1

a p p e n d ix  d

SUBCHAPTER I-A—ENFORCEMENT 
OF VOTING RIGHTS

§ 1973. Denial or abridgement of right to vote on account 
of race or color through voting qualifications or 
prerequisites: establishment of violation

(a) No voting qualification or prerequisite to voting or 
standard’ practice, or procedure shall be imposed or ap­
plied by any State or political subdivision in a manner 
which results in a denial or abridgement of the right of 
any citizen of the United States to vote on account of race 
or color, or in contravention of the guarantees set forth
in se^ion 1973b(fX2) of this title, as provided in subsec­
tion (b) of this section.

. S  subsection (a) of this section is es­
tablished if, based on the totality of circumstances, it is 
shoiAm that the political processes leading to nomination 
or election in the State or political subdivision are not 
equally open to participation by members of a class of 
citizens protected by subsection (a) of this section in that 
Its members have less opportunity than other members 
of the electorate to participate in the political process and 
to elect representatives of their choice. The extent to 
^^^ch members of a protected class have been elected to 
office in the State or political subdivision is one circum­
stance which may be considered: Provided, That nothing 
in this section establishes a right to have members of a 
protected class elected in numbers equal to their propor­
tion in the population.

(As amended Pub. L. 97-205, § 3, June 29,1982,96 Stat. 134.)