U.S. SUPREME COURT REPORTS 73L Ed 2d (Rogers v. Lodge)

    U.S. SUPREME COURT REPORTS 73LEd2d

QUENTIN -JAHi Hlal., App"lla,,ts

v
HERMAN LODGE et al.

458 US 613, 73 L Ed 2d lOL2, L02 S Ct BZ7Z, reh den (US) Z4 L Ed 2d 160,
103 S Ct 198

[No.8G2100]

Argued February 23,7982. Decided July 1, 1982.

Decision: At-large election system for large rural county with large black
population held violative ofequal protection clause.

SUMMARY

Eight black citizens of Burke county, Georgia, brought a class action in
the united states District court for the Southern District of Georgia,
alleging that the county's system of at-large election of the five county
commissioners violated the constitutional and statutory rights of the coun-
ty's black citizens by diluting their voting power. The District Court found
that the at-large system was being maintained for discriminatory purposes,
and it ordered that the county be divided into five districts for the purpose
of electing count-v commissioners. The Court of Appeals for the Fifth-Circuit
affirmed (639 F2d 1358).

_, On appeal, the United States Supreme Court affirmed. In an opinion by
Wun:r, J., joined b-v Buncen, CH. J., and BnBxxaN, MeRSHeu, Br-ecruux,
and O'CoxNon, JJ., it was held that the doctrine of unconstitutional dilution
of voting rights arising from an atJarge election system applies to counties,
that the evidence supported the District Court's finding of intentional
discrimination, and that the propriety of the remedy would not be consid-
ered because it u'as not questioned in the Court of Appeals.

PowelL, J., joined by REnNqursr, J., dissented on the ground that discrim-
inatory intent must be proved primarily by objective evidence.

SrovrNs, J., dissented on the ground that subjective intent is not a valid
criterion for constitutional adjudication.

Briefs of Counsel, p 1499, infra.
l0l2



73LEd2d

L Ed 2d 160.

th large black

class action in
ict of Georgia'
.he five count)'
rts of the coun-

ict Court found
rator]- PurPoses'
for the PurPose
.he Fifth Circutt

n an oPinion b1'

ret-1. BLecxMt'N'
rtutional dilutton
olies to countres.'

s of intentional
i'd not be consto-

,und that discrim-
)ce.

ent is not a valid

",4

*"i;I*ii:iixl:'!l'ri;;Itr'='-ffi #'"i""i''$

_ 
itl1 et-larse system of .e1115 I1 A:^i;i.=i1n"ti 

'iolot"t 
tl.," l:'l:- :

irll-i{*:fr li',"ffi :#'$fl;l:';.1""****,ri!,t*:*^:*:L---,

lf iii'*il":*gry5tT .rii:: 
h*I#*,*ffi*",'*1.."#"Ti==-^i1i-"i1"1r:" jn"...]i,L'_

* :i ^i*r 
n:'il. {ikiif; ;l:: ::l

i'H1til."il$*l'"''.''"' 
"'":,"-,. te,t

*",jI:*:1)"iAdi1.S1..;.:":,""'"'l,XyJi-:,1-;;:::.',-."'*;

RoGEES v 
"'P,lfJ. cr 32?2

458 us 613' ?3 L Ed 2d rr

-ixlli***,"$'","1*t'lt"*t ' "''

I

!
t

I

TOTAL CLIENT-SERVICE 
LIBRARYn ttDr'Er^!'- --

,u o* Jur 2d' 
"'.":::': 

UJi. 
orr".I, certiorari' and Revie*

f iil;i i'o'"a""' L Ed' APPe.t' "'

1:*tf*xrffiH*illl::::LISCS, Constitutton' r;;'*l;;,. SS i, 4

Ils L Ed Digest' t

"iS aaa a. o'o 
l*-o=, Equai protection of the Laws

L Ed lndex to Ann

ii* ii"tt* lndex' Discriminatt.n

;:i"; a;ick Index' Elections

ANNoTATION 
REFE*'N"': 

"-' nominatio

",l1iJ:"ix:i,,ls,':'|-.i;:* 
* :.:::' 

"' affec'lins nomina'1ion or

, nl I i,f l, llJ ",[['T'JJ' : fi 
" 

i *' :' *::"J' ,, :i" :':"T : ;"j'' :i' : Ti' ; s';;

1s3; - -^riries. v.res b) ^aqnliii'J,'ilj:t,i;:J::::"illl', 
T

Diluting, eflect of ill,tt^,1''i'.i.icr a- vit'iarror

r013



is required in all types of equal protec-
tion cases charging racial discrimination.

CivitRightsSl-intent
5a, 5b. Purposeful racial discrimina-

tion invokes the strictest scrutiny of ad-
verse differential treatment; absent such
purpose, differential impact is subject
only to the test of rationality.

Civil Rights $ 4.5 - racial impact -legislation
6. A law is not invalid under the equal

protection clause simply because it may
affect a greater proportion of one race
than another.

Civil Righls S 4.5 - intent - legisla-
tion

7. Discriminatorf intent need not be
proven by direct evidence but may often
be inferred from the totality of the rele-
vant facts, including the fact, if it is
true, that the law bears more heavily on
one race than another, which demands a
sensitive inquiry into such circumstan-
tial and direct evidence of intent as mav
be available.

Constitutional Lau' $ 316 - discrimi-
natory intent

8. Onlf if there is purposeful discrimi-
nation can there be a violation of the
equal protection clause of the Four-
teenth Amendment.

Appeal and Error S 1464 - factfind-
ings - revien'

9. Rule 52 of the Federal Rules of Civil
Procedure does not make exceptions or
purport to exclude certain categories of
factual findings.

Appeal and Error S 1477 - discrimi-
natory intent - revierr

10. The clearll' erroneous standard of
Rule 52 of the Federal Rules of Civil
Procedure applies to a trial court's find-
ing that a countl' at-large election s.vs-

tem is being maintained for discrimina-
tor.y purposes, and applies to the court's
subsidiary findings of fact.

Appeal and Error S 1506 - findings -two-court rule
11. The Supreme Court is reluctant to

l0l4

U.S. SUPREME COURT REPORTS 73LEd2d

disturb findings of fact concurred in br.
tu'o lou'er courts.

Civil Rights S 4.5 - elections
12. Where blacks have alu'ays made

up a substantial majority of a county's
population, although they are a distinct
minority of the registered voters, the
fact that none ha,. ever been elected a
count.v commissioner is important evi-
dence of purposeful exclusion.

Civil Rights S 4.5 - elections
13. That no black has ever been

elected a count)' commissioner in a
countl' where blacks have alu'ays made
up a substantial majority of the popula-
tion is insufficient in itself to prove pur-
poseful discrimination absent other evi-
dence such 6-. proof that blacks have less
opportunity to participate in the politi-
cal processes and to elect candidates of
their choice.

Constitutional Lan' $ 3f6 - historical
discrimination

14. Evidence of historical discrimina-
tion is relevant to drau'ing an inference
of purposeful discrimination, particu-
larly in cases r+'here the evidence shows
that discriminatory practices u'ere com-
monl.r' utilized, that the-r, u'ere aban-
doned when enjoined b1'courts or made
illegal bi civil rights legislation. and
that they u'ere replaced by' Iaws and
practices u,hich, though neutral on their
face, served to maintain the status quo.

Constitutional Larl' $ 484.4 - elec-
tions

15a. 15b. In determining u'hether a
discriminator)' purpose mav be inferred
in a case involving a claim of voting
dilution under the Fourteenth Amend-
ment, proof of unresponsiveness b1, the
public bodf in question to the group
claiming injurS' is an important element
but onll' one of a number of circum-
stances a court should consider.

Appeal and Error S 1477 - discrimi-
nation - revieu'

16 A finding that a cqunti' at-large
voting system has been maintained for
the purpose of denying blacks equal ac-



73LEd2d

:t concurred in b1,

Iections
rave al*'ays made
rrity of a count),'s
he1' are a distinct
;tered voters, the
'er been elected a
is important evi-
:lusion.

Iections
: has ever been
mmissioner in a
rave always made
:ity of the popula-
tself to prove pur-
absent other evi-

rt blacks have less
rate in the politi-
lect candidates of

316 - historical

,orical discrimina-
wing an inference
rination, particu-
re evidence shons
actices were com-
the-r' u'ere aban-
))' courts or made
; legislation, and
ced b5' lau's and
r neutral on their
r the status quo.

S 484.4 - elec-

rining n'hether a
ma'i' be inferred
claim o{ voting

urteenth Amend-
>nsiveness by the
on to the group
mportant element
rmber of circum-
)onsider.

1477 - discrimi-

r count] at-large
n maintained for
: blacks equal ac-

ROGERS v LODGE
458 US 613. ?3 LEd 2d 1012, 102 S Ct 3272

cess to the county political processes is

not clearly erroneous where blacks have

alr*'a1's made up a substantial majorit.r'
of the count)- population, no black has

ever been elected a count) commis-

sioner, past discrimination adversely af-

f'ected black voter registration and par-
ticipation in primarl' elections, elected

officials have been unresponsive to the
needs of the black communitY. and
blacks have a depressed socio-economic
status.

Civil Rights S 12,5 - remedies -
scope

17. Where a constitutional violation
has been found, the remedl- does not

exceed the violation if it is tailored to
cure the condition that offends the Con-
st it ution.

Appeal and Eror S 1339 - scoPe of
revieu'

18a. l8b. The Supreme Court v"ill not
address a contention not raised in the
Court of Appeals and not addressed b1'

thai court.

Constitutional Lau' S 484.5 - at-large
elections - counties

19a. 19b The doctrine of unconstitu-
tional dilution of voting rights arising
from an at-large election system applies
to count], governing bodies.

SYLLABUS BY REPORTER OF DECISIONS

Burke Countl-. Ga., a large. predomi-
nantll'rural county. has an at-large sys-

tem for electing members of its govern-

ing Board of Commissioners. No Negro
has ever been elected to the Board. Ap-
pellee black citizens of the countl' filed a

class action in Federal District Court.
alleging that the at-large s)'stem ol elec-

tions violated, inter alia. appellees'Four-
teenth and Fifteenth Amendment righrs
b1, diluting the voting pou'er ol black
citizens. Finding that blacks have als'avs
made up a substantial majoritl of the
count)"s population but that the.r' are a

minoritl' of the registered voters. thal
there had been bloc voting along racial
lines. and that past drscrimination had
restricted the preseni opportunitl of
blacks to participate effectivell in the
political process. the Dtstrict Court held
that although the statt'policl'behind the
at-large electoral s-\'stenr was "neutral in
origin." tht- policv s.as being maintained
for invidious purposes in 'r'iolation of
appellees' Fourteenth and Fifieenth
Amendment rights The court then or-
dered the count.\' to be divided intc, dis-

tricts for purposes of electing Countl'
C<.rmmissioners The Court of Appeals
afiirmed. holding that the Disrrict C<.rurt

properll'required appellees to prove that
the at-large s)'stem vras maintained for a
discriminatorl' purpos€. and that the
District Court's findings u'ere not onl.r'
not clearll erroneous but that its conclu-

sion that the atJarge s)'stem \^'as maln-
tained for inlidious purposes u'as "virtu-
alll- mandated b1' the overwhelming
proof."

Held:
1. The Court of Appeals did not err in

concluding that the District Court ap-
plied the proper legal standard, rvhere it
appears that the District Court demon-
strated its understanding of the control-
ling standard b.r' observing that a deter-
mination of discriminatorf intent u'as "a
requisite to a finding of unconstitutional
vote dilution" under the Fourteenth and
Filieenth Anrendments

2. \\'here neither the Districl Court's
ultinrate lindings of intentional discrimi-
nation nor its subsidiarS findings of fact
appear to bt' clearll'erroneous and such
findings u'ere agreed to bl the Clourt of
Apprea)s. this (lourt u'ill not disturb the
finciings

3. Nor is there an)' reason to overturn
the relief ordered br the Districr Court,
u'here neither that courl nor the Court
o{ Appeals discerned anl special circum-
stances that u'ould militate against uti-
Izing sing]e-member districts
639 F2d 1356. affrrmed

White. J., delivered the opinion of the
Court. in whicb Burger, C.J.. and Bren-
nan. Marshal). Biackmun. and O'Connor.
JJ.. joined. Pos'ell. J.. filed a dissenting
opinion. in r.rhich Rehnquist. J.. joined.
Slevens. J., filed a dissentrng opinion

t0l5



[458 US 614]

Justice \fhite delivered the opin-
ion of the Court.

tll The issue in this case is
whether the at-large system of elec-
tions in Burke County, Ga., violates
the Fourteenth Amendment rights
of Burke County's black citizens.

I

Burke County is a large, predomi-
nately rural county located in east-
ern Georgia. Eight hundred and
thirty-one square miles in area,' it is
approximately tu'o-thirds the size of
the State of Rhode Island. According
to the 1980 census, Burke Count-v
had a total population of 19.349, of
u'hom 10,385, or 53.6Vc, u,ere black.2
The average age of blacks

[458 US 615]

living
there is low'er than the average age
of whites and therefore whites con-
stitute a slight majority of the vot-
ing age population. As of 1978. 6.373
persons were registered to 'r'ote in
Burke County, of u'hom 387 were
black.3

The Burke Countl' Board of Com-
missioners governs the count)'. It
was created in 1911, see 1911 Ga
Lau's 31G-311. and consists of five
members elected at large to concur-

73LEd2d

rent 4-year terms by all qualified
voters in the county. The county has
never been divided into districts, ei-
ther for the purpose of imposing a
residency requirement on candidates
or for the purpose of requiring can-
didates to be elected by voters resid-
ing in a district. In order to be nomi-
nated or elected, a candidate must
receive a majority of the votes cast
in the primary or general election,
and a runoff must be held if no
candidate receives a majority in the
first primary or general election. Ga
Code S 34-1513 (Supp 1980). Each
candidate must run for a specific
seat on the Board, Ga Code $ 34-1015
(1978), and a voter mal' vote only

. once for an5' candidate. No Negro
has ever been elected to the Burke
County Board of Commissioners.

Appellees. eight black citizens of
Burke County, filed this suit in 1976
in the United States District Court
for the Southern District of Georgia.
The suit u,as brought on behalf of all
black citizens in Burke County. The
class rryas certified in 7977 . The com-
plaint alleged that the county's s.ys-

tem of at-large elections violates ap-
pellees' First, Thirteenth. Four-
teenth and Fifteenth Amendment
rights. 1s u'ell as their rights under
42 USC $S 1971, 1973, and 1983 [42
LISCS SS 1971, 1973, and 19831 by
diluting the voting po\l'er of black

U.S. SUPREME COURT REPORTS

APPEARANCES OF COUNSEL

E. Freeman kverett argued the cause for appellants.
David F. Walbert argued the cause for appellees.
Briefs of Counsel, p 1499, infra.

OPINION OF THE COURT

;

i
?.

.:

b
t

.

l
E

I
I

t,t

f . U. S. Dept. of Commerce. Bureau of the
Census. Countl and Cit.t Data Book 1977. p
90 { 1978 t.

2. U. S Dept. of Comnrerce. Bureau of the
C.ensus, 1.980 Census of Population and Hous-
ing. PHC80-V-12, p 5 tl\{ar. 1961r ln 193Ct,

Burkr, County had a total populatiorr of

t0l6

29.224, of *'hom 22,698 or 78% u'ere black. U
S. Dept of Commerce, Bureau of the Census.
II Characterisrics of the Population, pt 2, p
229 (1943,. The percentagt, of blacks in the
total population of Burke Countv has steadill'
diminished over the last 50 .r'ears.

3. App to Juris Statement 72a.



73LEd2d

by all qualified
The county has
nto districts, ei-
e of imposing a
nt on candidates
rf requiring can-
b-v voters resid-

rrder to be nomi-
candidat.e must

rf the votes cast
general election,

be held if no
majority in the

eral election. Ga
pp 1980r. Each
n for a specific
ia Code S 34-1015

may vote onlY
Ldate. No Negro
ed to the Burke
nmissioners.

black citizens of
this suit in 1976
rs District Court
strict of Georgia.
rt on behalf of all
rrke County. The
n 1977. The com-
the countl"s s)'s-

tions violates aP-

rirteenth. Four-
nth Amendment
heir rights under
r73, and 1983 [42
3, and 19831 bl'
I power of black

rr ?8% *'ere black. U
lureau of the C.ensus.

e Population. Pt 2' P

tage of blacks in the
e Countv has steadill'
50 -,-eari.

rent 72a

ROGERS v LODGE
458 US Ors. ?S L Ed 2d 1012' 102 S Ct 3272

citizens. Follou'ing. a bench trial at multinlember districts tend to mini-

u'hich both srdes ritroduced exten- ;;; lh" voting slrgncth of minoritl'

sive evidence, the to'l'i-i'=""a -ut' ;;;;p:' bv peimitting the political

order on september ii,l'rgia. ituti.,g il,";;;tr' 
'," 

elect a// representatives

rhat appellees werelntitled to pre- 
"i"i"n"-iri.,tict' 

A distinct minoritl''

;;i ;'j ;.dering thai' Burke county 1}jff 
.;' 

ffi ,f; J?. fil;fr,,n t ;r"T;

rjf,";$t#I,:-$"'#-lrrafji****i{rij.'$ilffi lii
inss of fact and to"ii'i"= oi iu" in iv'J 'oting 

power 'in 'a 
multimember

o't ich it stated tnat while the pres- iit;ti;i f particularll diluted rT'hen

:; l''* "; if ;'- "'i [: ;f,i,: "'I ":ffi 
; :*: :";l,t ;',::J' # :.'l;'f";'" :ii

Ti'"=i"";firt$1' rttt' 
j='"u"i"g -'- ill"' -wr''"- *"lti'n"mbei districts

irir"a iJ. i"riaiori p.rrpo="=" in vio- haue bee' chqliqlg^e! for

i;i#; or 
"pp"rr""s"Fourteenth 

and [45E us 617l

Fifteenth Amenameii;i;h't Id'' at . r - ^,, ^--^^-" 
"their v''in-

71a,96a' ner-take-all aspects' their tendenc-""

rhe court of Appeals aflirqqd, i:r":*:'n"T'1fi'ff'r:li'i:"f1:i
hU ;B;;i";: 63e'F2d 1358 (cAs l,l'*i ''ci,"''i9,a99 

u"s tza' 158-15e'

ffii;' It stated that u'hile the pro- 
z6:'i' ea-za 363' 91 S ct 1858 t1971t'

;#ii;*-. i"-ah; District court-took iti.-c""., has repeatedll' held that

irr.-"iir"t to the decision in Mobile the' are not unconstitutional per se'

I'i"rJ*. +aO US 55' 64 L Ed 2d 4;' ll"trf" t'ilold"n' supra' ut 9.Q: 9a L

ioi"5'6i iago (1e80r' the District il;; a;. roo s ci rago: white v

a;;.; cor.ectll' anticipated IUobile "il";"";.'lii US ?55' 765' 37 ,l:-.Ed
;;;';"q;i."J appellees to prove t-hat ;;"ii;.^'gi-5 c, 2332 t1e73r: \Yhi!-

;i;;-i.tc" toiit,g s)'stem u'as main- ;;-; il cl,ari.. supra, ar r42' ?9 L
irir"a foi a discriminatorl' purpose Lj'ia gffi, gt S Ci 1s58. The Court

ho'Fil:-ra1375-13?6 The court.of t.=?"*"ized. hou'e'er' that multi-

;;r;;.'"t-'o t'"ta that the District ,ril-u"r'aistricts violate the Four-

Court's findings "\ere 
not clearll'.er- l"".tf, e-"ndnlent if "concei'ed or

ifl I 
;:tj j# 

.l,lj : it. "::l'llii :i.ll{i isi#i f .:i,.l; *;::l*, "xiiii:', iiioi intidious purposes sas "r'irtuallv 
-i"ir"riti. .r"""fii"g out or dilut-

:*:r-ti. J,,,rJl",u::T:til't{ il ,r* 1oti.,g .,,",,*'n of raciar ere.

i,ie iurisdiction.454 LjS sl1' 7d.L Ed -!ti-' irr ti'* r'oting population'

iJ 60, 102 s c' so ogsi and nor" Hl;m'r; S3:;; .'TJ'itil 'iij
affirm.o -"i.o"U'fu," v Regester, supra,-at 765'

Iz I ni za 314. 93 s ct 2332 cases

II ;;";** ,hat multimember districts

[458 US 616] unable to elect an]'- representattves

divided into five districts for pur- ;;;- "ii"l* :.Y1"::^,:].*.:LX

g schemes ,na it"?oTttTtui'o"utlt aitut" tn" 'oti"g

4. The Districr Court's judgment ua-' staved

*Lair- ;;;;i't; 
'th" 

c",u'i of Appeals-. 43it

[i;;a','si'i-ea 2d 33e. s!' s (\ 342 rte?8

Tht' Court of Appeal: sraled iu' mandatt on

io.rii. 1slir.-pending driposirion of the ca-se

hert' 
tolT



strength of racial minorities are
thus subject to the standard of proof
generally applicable to Equal Protec-
tion Clause cases. Washington v Da-
vis, 426 US 229,48 L Ed 2d 597,96
S Ct 2040 (1976), and Arlington
Heights v Metropolitan Housing
Dev. Corp. 429 US 252,50 L Ed 2d
450,97 S Ct 555 17977), made it clear
that in order for the Equal Protec-
tion Clause to be violated, "the invi-
dious quality of a law claimed to be
racially discriminatory must ulti-
mately be traced to a racially dis-
criminatory purpose." Washington v
Davis, supra, at 240,48 L Ed 2d 597,
96 S Ct 2040. Neither case involved
voting dilution, but in both cases the
Court observed that the requirdment
that racially discriminatory purpose
or intent be proved applies to voting
cases b-v relying upon, among others,
Wright v Rockefeller, 376 US 52, 11
L Ed 2d 512, 84 S Ct 609 (1964), a
districting case, to illustrate that a
showing of discriminatory intent has
long been required in all types of
equal protection cases charging ra-
cial discrimination. Arlington
Heights, supra. at 265, 50 L Ed 2d
450,97 S Ct 555; Washinglon v Da-
vis, supra, at 240,48 L Ed 2d 597, 96
S Ct 2040.5

[458 US 618]

[6, 7] Arlinglon Heights and \4:ash-
ington v Davis both rejected the no-
tion that a lau' is invalid under the
Equal Protection Clause simpll- be-
cause it ma1' affect a greater propor-
tion of one race than another. Ar-
lington Heights, supra, at 26i, S0 L
Ed 2d 450. 97 S Ct 555; Washington
v Davis, 426 US, at 242,48 L Ed 2d
597, 96 S Ct 2040. Hou'ever. both
cases recoElnized that discriminator-y
intent need not be proved by direct

U.S. SUPREME COURT REPORTS 73LEd2d

evidence. "Necessarill., an invidiousl
discriminatory purpose ma-v often be(
inferred from the totality of the ."le- \
vant facts. including the fact, if it is /
true, that the lavt bears more heav-
ily on one race than another." Ibid.
Thus determining the existence of a
discriminatory purpose "demands a
sensitive inquiry into such circum-
stantial and direct evidence of intent
as may be available." Arlington
Heights, supra, at 266, b0 L Ed 2d
450,97 S Ct 555.

In Mobile v Bolden, supra, the
Court rr"as called upon to applv these
principles to the at-large election
system in Mobile, Ala. Mobile is gov-
erned by three commissioners who
exercise all legislative, executive,
and administrative power in the mu-
nicipality. 446 US, at 59, 64 L Ed Zd
47, lO0 S Ct 1490. Each candidate
for the City Commission runs for
one of three numbered posts in an
at-large election and can only be
elected by a majorit)' vote. Id., at 59-
60, 64 L Ed 2d 47, 100 S Ct 1490.
Plaintiffs brought a class action on
behalf of all Negro citizens of Mobile
alleging that the at-large scheme
diluted their voting strength in vio-
lation of several statutorl. and con-
stitutional provisions. The District
Court concluded that the at-large
system "r'iolates the constitutional
rights of the plaintiffs by improperly
restricting their access to the politi-
cal process," Bolden v Mobile, 428 F
Supp 384, 399 (SD Ala 1976r, and
ordered that the commission form of
government be replaced by a mayor
and a nine-member Cit.r' Council
elected from single-memher districts.
Id., at 404. The Court of Appeals

5, [5b] Purposeful racial discrimination
invokes the strictest scrutinl' of adverse difi'er-
ential treatment. Absent such purpose. differ-

I0r8

ential impact is subject onl.r' to the test of
rationalit-v. Washington v Davis. 426 US, at
24i-248,4E L Ed 2d 597.96 S Ct 2040.



73LEd2d

an invidious
may often be
ty of the rele-
re fact, if it is
s more heav-
nother." Ibid.
existence of a
l "demands a
such circum-
ence of intent
)." Arlington
,50LEd2d

"r, supra, the
to apply these
.arge election
Mobile is gov-
issioners who
r€, executive,
uer in the mu-
19, 64 L Ed 2d
ach candidate
sion runs for
d posts in an
can only be

ote. Id.. at 59-
c0 s ct 1490.
lass action on
zens of Mobile
'large scheme
rength in vio-
rtory and con-

The District
the at-large

constitutional
by improperly
: to the politi-
Mobile, 423 F
,la 1976t, and
rission form of
:d by a ma-vor
City Council

mher districts.
rt of Appeals

ll1' to the test of
Davis, 426 US, at
S Ct 2040.

ROGERS v LODGE
458 US 613, ?3 L Ed 2d 1012' r02 S Ct 3272

afhrmed. 571 F2d.238 (CA5 1978)' lalitl'' Id'' at 101' 64 L Ed 2d 47' 100

This Court reversect' S Ct-1a90 (White' J" dissentingt'

t8l Justice Stewart' writing for The pluralitv w€nt on to conclude

himself and tn.""."'oih"''^i"til"*' tf''i'in!-Ditttitt Court had failed to

noted that to prevatr i' !ll':'^::::: ;:'tl'i"l*h1his;::i# J|,"'iii'
tion that the atJarge votrng sysrem :
uiotur", the Equal frotection 9ll:'." i*i\"':Jt*l'LtH 

tn";t1;4;;
oi the Fourteenth ..Amendment' ir4.K;;h;", 485 F2d 1297 (CA5

fiaintitrs n.o,l;J,l3'.",r1n" iA;;i'";tre on .other srounds sub

system ;;;'il' 
-Carroll-Parish School Bd'

was "'conce-ived. gr on3r1!ed ;! ,ril jrX"fltSl.'inr|$ t"hel 
hil;,1

;;.65:HL? i3 ff't!. l?.}t 7iJ*,1 zi^rner set out a risi or rac-

64 L Ed 2d 47,100 s Lt 
'iio' 

o*l tors' gleaned 
ffrorTrc u,o,

i"n"w't,it.rmb v Chavis, 403 U!'-?l Whitcomb v

ifg, Zii i fA Za gG3, 91 S. Ct.1858.6 Chavis, supra, and White v Regester,

s;;h-" requirement "is simply one t"o*,'*"i a court should consider

;;;;;a or ine basic principle thar i;:;;";-.*c the constitutionalit5 of

""1"'if 
iir"r" i. purposefuJ dis.crimi- 

"i 
fr.i" ",ia 

multimember district

;;il"; can there be a violation -ol votinf schemes. Under Zimmer, vot-

;h"^;;;;i protection Clause of_the i,ig'-'tiirti"n is. established "upon

ioutt"'"*h Amendment"'446 ust^1t pt-oof of the existence of an aggre-

a;, ;;;"^ii-ia u,100 s ct .14e0, ;;;;-"i-these ractors'" 485 F2d' at

I"a 
-Wtti," v Regester is consistent f gOS'

;i; ;h;i PrinciPle' 446 uS' at 6e'

64 L Ed 2d 47, too i-ct-iago. A'.,- The pluralitf in Mobile was of the

other Justice agreed u'ith the stan- I'-":'-[;t,"'*T:.1^Jtr- ;;Ti1t11
:t;1:',i"r=:::? iffioJ"l1.ir," pr,r- uion the misunderstanding that it is

6. With resp€ct to the Fifteenth Amend'

-"rt.'ti" piu.'"titn held that the Amendment

"."nlUi,. 
onll direct' purposefulll discrimina'

i;;i' i;;"J;;,,.. "'i't'' 
*'' freedom of N egroes

i;'''#':ji;;ing io"na .that Negroes in.l\1o'

xlt" ;r.ci.re, und tot" r'r'ithout hindrance ' the

iji.,ti.ii"r" and Coun of Appeals were'rn

;;;;'j; L"r,".'ing that the appeliants invaded

:;-";;,":;;' li tir'" Firtet-ni h I Amendment

il'r,f,;;;;;;,-t"" " Mobile v Bolden' 4-46

tis.'"r 'el.-ot L Ed 2d 4? 10(r S ('r l49rt

ii.u" .l,.rr,i."s disagreed with the pluralirl's
i"t"'r".-o"iiing utid" the Fifie.enth Amend

nient 
'i;.; italn 3. 6a L Ed 2d 4?' 1oo s ct

ia.uii,Sr"."r,r, J.' concurrtng in judgmenlr' id '

"i ioi.'oi'f E d 2d 4i. 100 S cr 14e0 twhite'

i. ij.'*il".ild.' at rzs-135' 64 L Ed 2d 41'

;d0 s-Lii'iibb rMarshall. J . dissenting) \r'e

;;;.;.''";'.i"; on the application ol the

Fiireenth Amendmenr lo this case'-'ii" 
of u.ufirl noteC that .plaintiffs-.:t3]:

,l.d", ( 2 of the Voting Rights 'Act' iv- Drai

iii.',."il;J; 43 us(' s re.3 l4l^LISCS

i rgtii ;;;;J nothing to their Fifieenth

Amendment clatm becar.lqr' the "legislative

;j.;; ;i g! make' cle'rr that ir uas tn

ili;:i ; i^' 'n eflecr n, different fr.m

;il;'; ii"'Fit,""ntr' Amendmenr ircelf " 446

il'-{.,;'d;i 6J r ea 2d 4? roo S ct 145t(t

? \\t' specifir'.rllr aftrrmed the judgment

*i""'; "iit.,ri"upi,ru.'ut 
of the consiitutional

5J;- ";;;;..;d 
Li: tr." (\'urr of Appea)s " 424

iis.'r,'o'5i. a; L Ed 2d 2e6' eG s cr I08:t

8. The primar] factor: listed in Zimmer

t"liri-', ;;; ;' minoritl access to the candr'

dare selecrroti process unresponsiveness of

Iil.,"J ufli.i"ls io minoritv interesLs' a tenu-

;ir'. .*t;';i;c* und"'t'i"g the preferenct' for

Ir"riit*"ir,.t or at-large 
'districting and the

;"il;;';i pasr discri'i"atron *'hich pre-

cludes eflective partlclpation in the elector

orr."t.'iAi fSd ar tg(li Factors uhrch en-

hance tht prool ol soting dilution are the

ili.;;";; oi iu'g" drstriCts' anti-single-shot

.Liil.c' pt,,. i=ions and rhr' absence of an)

"."-:lli.i, 
Ior ar'lrtrgt candtdates to run from

ieograPhic subdistricrs Ibid

1019



not necessary to sho\l a discrimina-
tory purpose in order to prove a
violation of the Equal Protection
Clause-that proof of a discrimina-
tory effect is sufficient." 446 US, at
71,64 L Ed 2d 47, 100 S Ct 1490.
The plurality observed that rn,hile
"the presence of the indicia relied on
in Zimmer may afford some evidence
of a discriminator.v purpose," the
mere existence of those criteria is
not a substitute for a finding of dis-
criminatory purpose. Id., at 73, 64 L
Ed 2d 47, 700 S Ct 1490. The District
Court's standard in Mobile was like-
u'ise flawed. Finalll', the plurality
concluded that the evidence upon
which the lower courts had relied
was "insufficient to prove an uncon-
stitutionally discriminatory purpose
in the present case." Ibid, Justice
Stevens rejected the intentional dis-
crimination standard but concluded
that the proof failed to satisfy the
legal standard that in his vieu' vvas
the applicable rule. He therefore
concurred in the judgntent of rever-
sal. Four other Justices. however,
thought the evidence sufficient to
satisfl' the purposeful discrimination
standard. One of them, Justice
Blackmun, nevertheless concurred in
the Court's judgment because he be-
lieved an erroneous remedy had
been imposed.

Because the District Court in the
present case emplol'ed the eviden-
tiarl' factors outlined irr Zimmer, it
is urged that

[458 US 62r]
its judgment is infirm

for the same reasons that led to the
reversal in Mobile. We do not agree.
First, and fundamentalll,, vue are
unconvinced that the District Court
in this case applied the rvrong legal
standard. Not onl-r' u'as the District
Court's decision rendered a consider-
able time alier \4Tashington v Davis
and Arlington Heights, but the trial
1020

U.S. SUPREIUE COURT REPORTS 73LEd2d

judge also had the benefit of Nevett
v Sides, 577 ?2d 209 (1978), where
the Court of Appeals for the Fifth
Circuit assessed the impact of Wash-
ington v Davis and Arlington
Heights and held that "a shou'ing of
racially motivated discrimination is
a necessary element in an equal
protection voting dilution claim
. . . ." 571 F2d. at 219. The court
stated that "[t]he ultimate issue in a
case alleging unconstitutional dilu-
tion of the votes of a racial group is
whether the districting plan under
attack exists because it was intended
to diminish or dilute the political
efficacy of that group." ld., at 226.
The Court of Appeals also explained
that although the evidentiary factors
outlined in Zimmer were important
considerations in arriving at the ul-
timate conclusion of discriminator)'
intent, the plaintiff is not limited to
those factors. "The task before the
fact finder is to determine. under all
the relevant facts, in u'hose favor
the 'aggregate' of the evidence pre-
ponderates. This determination is
peculiarl.v dependent upon the facts
of each case." Id., at 224 (footnote
omitted ).

The District Court referred to
Nevett v Sides and demonstrated its
understanding of the controlling
standard b1' obsen'ing that a deter-
mination of discriminatorf intent is
"a requisite to a finding of unconsti-
tutional vote dilution" under the
Fourteenth and Fifteenth Amend-
ments. App to Juris Statement 68a.
Furthermore. u'hile recognizing that
the evidentiary factors identified in
Zimmer were to be considered, the
District Court was aware that it u'as
"not limited in its determination
onl-r' to the Zimmer factors" but
could consider other relevant factors
as vi'ell. Id.. at 7Oa. The District
Court then proceeded to deal with



73LEd2d

re benefit of Nevett
209 (1978), where

peals for the Pifth
he impact of Wash-
s and Arlington
that "a shou'ing of
i discrimination is
nent in an equal
g dilution claim
at 219. The court
ultimate issue in a
:onstitutional dilu-
rf a racial group is
ricting plan under
use it was intended
ilute the political
roup." ld., at 226.
eals also explained
evidentiary factors
er were important
arriving at the ul-
of discriminatorv

ff is not limited ;
re task before the
termine. under all
;, in u.hose favor
the evidence pre-
determination is

)nt upon the facts
, at 224 (fbotnote

lourt referred to
I demonstrated its

the controlling
ring that a deter-
ninator-r' intent is
nding of unconsti-
ttion" under the
rifteenth Amend-
is Statemenr 68a.
: recognizing that
Itors identified in
,e considered. the
ar^'are that it was
ts determination
ner factors" but
r relevant factors
'0a. The District
ded to deal r*'ith

ROGERS v LODGE
458 US 613, ?3 L H 2d 1012. 102 S Ct 3272

what it considered to
[458 us utl 

,n" relevant
oroof and concluded that the at-
iarse scheme of electing commission-
ersl "although racially neutral-when
adopted, is being maintained for in-

vidi,ous purposes." Id., at Tla That
svstem 'iwhile neutral in origin
has been subverted to invidious pur-
Doses." Id., at 90a. For the most

iart, the District Court dealt u'ith
ihe evidence in terms of the factors
set out in Zimmer and its Progeny'
but as the Court of APPeals stated:

"Judge Alaimo emPloYed the con-

stitutionallY required standard
. . . [and] did not treat the Zim-
mer 

- 
criteria as absolute. but

rather considered them onlY to the
extent theY were relevant to the
question of discriminatory intent'"
639 F2d, at 1376.

Although a tenable argurrient can be

made to the contrar), we are not
inclined to disagree u'ith the Court
of Appeals' conclusion that the Dis-

trict Court applied the proper legal
standard.

III
A

tF11l We are also unconvinced
that we should disturb the District
Court's finding that the at-large sys-

tem in Burke CountY was being
maintained for the invidious purpose

of diluting the voting strenglh of the
black population. In White v Reges-

ter, 4i2 us, at 769-770' 37 L Ed 2d

314, 93 S Ct 2332, u'e stated that we

were not inclined to overturn the
District Court's factual findings'
"representing as thel' do a blend of
hisiorl' and an intensell' local ap-

praisai of the design and impact.of
th" B"*". Count-v multimember dis-
trict in the light of past and present

\realitl, politiial and otheru'ise'" See

also Columbus Board of Education v
Penick, 443 US 449,468,61 L Ed 2d

666, 99 s ct 2941 (1979) (Burger, c.
J., concurring in judgment). Our re-
cent decision in Pullman-Standard v
Su'int, 456 US 273, 72 L Ed 2d 66'
102 S Ct 1781 (1982), emphasizes the
deference Federal Rule of Civil Pro-
cedure 52 requires reviewing courts
to give a trial court's findings of fact'
"Rule 52(d broadlY requires that
findings of fact not be set aside un-
less

t458 us 6231 
clearly

erroneous. It does not make excep-
tions or purport to exclude certain
categoriei of factual findings :
456 us, at 28i, 72 L Ed 2d 66, 102 s
Ct 1781. The Court held that the
issue of whether the differential im- \
pact of a seniority system resulted/
i.o* an intent to discriminate onf
racial grounds "is a pure question of)
fact, subject to Rule 52(a)'s clearl.v-l

"rro.r"o.,--. 
standard." Id., at 287-288'\

72 L Ed 2d 66, r02 S Ct 1781. The \
Su'int Court also noted that issues of I
intent are commonly treated as fac- f
tual matters. Id., at 288, 72 L Ed 2d

66, 102 S Ct 1781. We are of the.
vieu' that the same clearly-erroneous/
standard applies to the trial court's\
finding in this case that the at-largeJ
svstem in Burke CountY is being
maintained for discriminatory pur-
poses, as u'ell as to the court's sub-

iidlurl'' findings of fact. The Court of
Appeits did not hold an)' of the
Disirict Court's findings of fact to be

clearly erroneous. and this Court
has frequentll' noted its reluctance
to disturb findings of fact concurred
in by tr*'o lower courts. See, e'g"
Berenyi v Information Director, 385

us 630, 635. 17 L Ed 2d 656,87 S Ct

666 t196?r; BIau v Lehman. 368 US
403. 408-40s.7 L Ed 2d 403, 82 S Ct

451 (1962r; Graver Tank & Mfg Co'

v Linde Co. 336 US 271, 275,93 L
Ed 672, 69 S Ct 535 (1949). We agree

l02l



with the Court of APPeals that on
the record before us, none of the
factual findings are clearly errone-
ous.

B

t12l The District Court found that
blacks have alu'ays made uP a sub-
stantial majority of the population
in Burke County, ApP to Juris State-
ment 66a, n 3, but that theY are a
distinct minority of the registered
voters. Id., at 71a-72a. There u'as
also overwhelming evidence of bloc
voting along racial lines. ld., at 72a-
?3a. Hence, although there had been
black candidates, no black had ever
been elected to the Burke Countl'
Commission. These facts bear heav-
ily on the issue of purPoseful dis-
crimination. Voting along racial
lines allows those eiected to ignore
black interests without fear of politi-
cal consequences. and u'ithout bloc
voting the minoritl' candidates
would not lose elections solell' be-

cause of their race. Because it is
sensible to expect that at least some

[458 US 624]

blacks would have been elected in
Burke Countl', the fact that none
have ever been elected is important
evidence of purposeful exclusion. See
White v Regester. supra, at 766, 37
L Ed 2d 314,93 S Ct 2332.

t13l Under our cases, hou'ever,
such facts are insufficient in them-
selves to prove purposeful discrimi-
nation absent other evidence such as
proof that blacks have less opportu-
nity to participate in the political
processes and to elect candidates of
their choice. United Jewish Organi-
zations v Care-v, 430 US 144, 167, 51

L Ed 2d 229, 97 S Ct 996 tr9i?l.
White v Regester, supra. at 765-766.
37 L Ed 2d 3t4.93 S Ct 2332: Whit-
comb v Chavis, 403 US, at 149-150.
29 L Ed 2d 363, 91 S Ct 1858. See

also Mobile v Bolden, 446 US. at 66.

L022

U.S. SUPREME COURT REPORTS 73LEd2d

64 L Ed 2d 47, 100 S Ct 1490 (plural-
ity opinion). Both the District Court
and the Court of Appeals thought
the supporting proof in this case tvvas

sufficient to support an inference of
intentional discrimination. The sup-
porting evidence vvas organized pri-
marily around the factors which
Nevett v Sides, 57i F2d 209 (CAs
1978), had deemed relevant to the
issue of intentional discrimination.
These factors were primariiv those
suggested in Zimmer v McKeithen,
485 F2d 1297 (CA5 1973).

The District Court began b1'deter-
mining the impact of past discrimi-
nation on the ability of blacks to
participate eflectively in the political
process. Past discriminatiqn !\'/as

found to contribute to lou' black
vot.er registration because prior to
the Voting Rights Act of 1965,
blacks had been denied access to the
political process by means such as
literacy tests. poll taxes, and u'hite
primaries. The result was that
"Black suffrage in Burke CountY
u'as virtually non-existent." App to
Juris Statement 71a. Black t'oter
registration in Burke CountY has
increased following the Voting
Rights Act to the point that some
38% of blacks eligible to vote are
registered to do so. Id., at 72a. On
that basis the District Court inferred
that "past discrimination has had an
adverse effect on black voter regis-
tration which lingers to this date."
Ibid. Past discrimination against
blacks in education also had the
same effect. Not onll' did Burke
County schools discriminate against
blacks as recentll' as 1969, but also
some schools

[458 us 625]

still remain essentially
segregated and blacks a-s a group
have completed less formal educa-
tion than u'hites. Id.. at 74a.

[1a] The District Clourt found fur-



73LEd2d

1490 (plural-
)istrict Court
rcals thought
this case was
, inference of
ion. The sup-
rrganized pri-
rctors which
2d 209 (CAs
evant to the
iscrimination.
Lmarily those
,' McKeithen,
l).

gan by deter-
cast discrimi-
of blacks to
r the political
rination $'as
o lou' black
ruse prior to
ict of 1965,
access to the

eans such as
rs, and u'hite
t u'as that
urke County
ent." App to
Black voter
Countl' has
the Voting
rt that some
to vote are

.. at 72a. On
)ourt inferred
rn has had an
i voter regis-
;o this date."
tion against
rlso had the
; did Burke
inate against
969. but also

n essentially
as a group

ormal educa-
74a.

Lrt found fur-

458 us 613, ?3 L Ed 2d 1012, 102 s cr 3272

therevidenceofexclusionfromtheevidencerangedfromthe.eflectsof
oolitical process. puri air".i-ination past discrimination which still

#;"';;;;.-t"J ur'.r'"-i;;; effec- t458 us 6261

tively participating--in Democratic ,he eountv courthour 
haunt

Partv affairs tto ""'i'ii'uil:i;i 
the countv courthouse to the infre-

tioni. Until this r"*'Iii--*"t nr"a' quent appointment of blacks to

there had never u""""I^Lutt -"-- "ou"ty 
boards and committees; the

ber of the County 
-^e."*ti"" C"-- ';;ttly 

discriminatory pattern of

mittee of the D";;;-;i; Party' paving countv roads; the reluctance

There were also property o\{'lglship of thJ county to remedy black com-

requirements that ;;; it aimtt.rtl piui"tt' which forced blacks to take

for blacks to serve *i;"'i;;il;; i"gti t"tion 'to 
obtain school and

in the county. Tne[ 
-r'uJ 

u"Jn ai=- g-t"'a jury' 
-desegregation; 

and the

crimination in the ,"1";;, J grand roi" prrv"i by the county commis-

iurors, the hiring ;i;;;;i)' e#plov- 'iot'"i= 
in the incorporation of an

L"r, and in the appointments to ali-rx'hite private- -school 
to u'hich

boards and commiti6Js whict' ote'- li'"y ao"'igd' public funds for the

see the county government' Id''- at f"it'*u of band uniforms' Id'' at

74a-76a. The Oi.iiict-- Coutt thus 77a-82a'

conct"aea that historical discrimina- The District Court also considered
tion had restricted lh",.pt.":".1-"^f tn"-a"p."rsed socioeconomic status
portunity of blacks. effectively ' B?.1- oi- g"iX" County blacks. It found
li"iput" in the political process' Lv)- tf,rr proportionately more . blacks
;;;'.; of historical discrimination is ;i;;; ;hii"s have intomes below the
;;i;-;;a to drawing an inference of no*ertv level. ta., ai- ggu. Nearlv
purposeful discrimination' partrcu- 

ESS, of all black families living in
[.li * cases such as this one where L".X" Cr""ly had incomes equal to
lhe'"o'ide.,ce shou's that discrimina- ;r-l;;.-ti,u.,-"tf,r""-fourths of I pov-
itil' ptu.tices were commonll' uti- ertv-level l.r"o-". ILid' Not only
i#a,'tr,ut the.v were abandoned i'r';]"'ir".x-.' *-pr","a less formal

x,E:, ilj :iffl.':i, F" 
"#iil, iiiii i i[: ::*:,lx *i.'""';"::1" :]' 1,.:,i;

that thel' rrere replaced b1' lav's-and .""iirr,*"fy inferio, to a marked
practicei q'hich. though neutral on ;;;;;i'l.i:, "i 

ga, Btacks rend ro
if,"l. face. serve to maintain the ;;:;t-- fi..' prf than *'hites. even
status quo. ioi .i*if"r *o.[. and thel' tend to be

[15a] Extensive evidence was cited 
"rnpfov"a 

in menial jobs more often

bv the District d;i ; support its tt,an trr,ites. Id.'. at 85a' seventy-

nnaing that elected-;ffi;;^it oi Burke ;i;;;; p"' 9"11 o.{ houses occupied b1'

Countl' have been '"'"'po"'i* '"a 
Uiutftt'Iacked all or some plumbing

insensirive to the ,*"ar-6i it e black facilities: onl) 16% of $'hiteoccu'

communitl'.' *'tti"ii- ittt"*"= the pi"a f'o"t"s iuffered the same defi-

Iikelihood that the political pro:g:s Ii""11, 1u:t^-1[ ,?:'.ti:::, *Ir*

ROGERS v LODGE

hkellhooo fnal LIIe PurrLreqr l.lvvvvv -r"atira"a 
that the depressed socio

*.. ""t equally open to blacks This c(

9. [15b] The Court of Appeals he.ld .that
"oroof ol unrespons)\'eness b1 the public bod-r

in ouestion to the group claiming lnJur) . ls

".'"rt""i;rl 
elemenl of a claim of *oting

Iiiril"t una"r the Fourteenth Amendment

639 F2d, at 1375 Under our cases' however'

i"n.".*n.lt"ness is an important element but

o"i,: Jn" of a number of circumstances a court

;;;-rki ;;.;d"r in derermining *'hether dis'

criminatorl purpose ma1 be inferred'

r023



economic status of blacks results
part from "the lingering effects
past discrimination." Ibid.

Although finding that the state
policy behind the at-large electoral
system in Burke County was "neu-
tral in origin," the District Court
concluded that the policy "has been
subverted to invidious purposes." Id.,
at 90a. As a practical matter, main-
tenance of the state statute provid-
ing for at-large elections in Burke
County is determined by Burke
County's state representatives, for
the legislature defers to their wishes
on matters of purely local applica-
tion. The court found that Burke
County's state representatives "have
retained a system u'hich has mini-
mized the ability of Burke C,ountl'
Blacks to participate in the political
system." Ibid.

[458 us 627]

The trial court considered, in addi-
tion, several factors u'hich this Court
has indicated enhance the tendenc.r'
of multimember districts to mini-
mize the voting strength of' racial
minorities. See Whitcomb v Chavis,
403 US, at 143-744.2Sr L Ed 2d 363.
91 S Ct 1858. It found that the sheer
geographic size of the countl', u hich
is nearll' trvo-thirds the size ol
Rhode Island, "has made it more
difficult for Blacks to get to polling
places or to campaign for ofIice."
App to Juris Statement 91a. The
court concluded. as a matter of lau'.
that the size of the countl' tends tcr

impair the access of' blacks to the
political process. Id.. at 92a. The
majoritl' vote requirement, Ga Code

$ 34-1513 tSupp 1980t. was found "to
submerge the u'ill of' the minoritl"'
and thus "den-"- the minority's access
to the s-vstem." App to Juris St.ate-
ment 92a. The court also found the
requirement that candidates run for
specific seats, Ga Code S 34-1015

toz4

U.S. SUPREME COURT REPORTS 73LEd2d

(1978), enhances appellees' lack of
access because it prevents a cohesive
political group from concentrating
on a single candidate. Because
Burke Countl' has no residency re-
quirement, "[a]ll candidates could
reside in Waynesboro, or in 'lilly-
white' neighborhoods. To that ex-
tent, the denial of access becomes
enhanced." App to Juris Statement
93a.

[16] None of the District Court's
findings underlying its ultimate find-
ing of intentional discrimination ap
pears to us to be clearly erroneous;
and as we have said, lve decline to
overturn the essential finding of the
District Court, agreed to by the
Court of Appeals, that the at-large
system in Burke CountS' has been
maintained for the purpose of denl'-
ing blacks equal access to the politi-
cal processes in the county. As in
White v Regester, 412 US, at 767, 37
L Ed 2d 314, 93 S Ct 2332, the
District Court's findings u'ere "suffi-
cient to sustain Iits] judgment
and. on this record. rt'e have no rea-
son to disturb them."

IV

[17, 18a, 19a] We also find no rea-
son to overturn the relief ordered b1'

the District Court. Neither the Dis-
trict Court nor the Court of Appeals
discerned an1' special circumstances
that vi'ould militate

[458 US 628]

against utilizing
single-member districts. Where
constitutional violation has been
found, the remedy does not 'exceed'
the violation if the remedy is tai-
lored to cure the 'condition that
ofl'ends the Constitution."' Milliken
v Bradlel', 433 US 267, 282, 53
L Ed 2d 745, 97 S Ct 2749 r1977r
(emphasis deleted t, quoting Mil-
liken v Bradlel', 418 US 717, 738,

in
of



73LEd2d

)es' lack of
s a cohesive
rncentrating
e. Because
esidency re-
dates could
or in 'lillY-
fo that ex-
ess becomes
s Statement

trict Court's
,ltimate find-
mination aP
)' erroneous;
re decline to
inding of the
to by the

the atJarge
ty has been
pose of denY-
to the politi-
runtl . As in
lS, at 76?,37
It 2332, the
s \r'ere "suffi-
udgment
have no rea'

o find no rea-
ief ordered bY

ither the Dis-
rrt of APPeals
circumstances

rl

lainst utilizing
Ls. Where 't a

)n has been
)s not 'exceed'
'emedf is t.ai-

:ondition that
on."' hlilliken
26i, 282, 53
)r 2i49 ,1977t

quoting Mil-
us 717, 73E,

ROGERS v LODGE

458 us ois'"zlL Ea 2d ror2' 102 S Ct 3272

411 Ed 2d 106e' ;; ;- ", 
,rr, ,jr'::tHli 

of the court of Ap'

(1974).'0

SEPARATE OPINIONS

Jus- case, the
decision'

Court todaY affirms their

Justice Porvell' t'ith whom

ti"""-n"fr*"quist joi n s' d isse n ti n g'

I
Whatever the wisdom of Mobile'

tf,"'ii"rt'. opinion cannot be recon-

"ii"J 
p"t=uasivel-v- u'ith that case

There are some variances in the

irr*"ft sociological evidence Pre-

sented in the two cases But lMobile

i"ia iir", this kind of evidence u'as

;;i"";;;h suct' et'idence' u;9 fgund

t;'M;;tl;. did not merell fall short'

il'i':i"ii'ai short['l of shou'ins that

i; ;ii;;e electoral scheme was1

i;;;;;;'or operated [as a] 
- Pur-

i;::''i,i Frl.l:t i:,T "Iii;";il,odiscriminatton -rro-r ^1 t oo S Ct 1490 (emPhasis

'"lui,. **'* !\'hitcomb *: glStltr
ioi'us iia. rag' 2e L Ed 2d 363' el

3"4,"1d8-(1971r' Because I believe

that \{obile controls this case' I dis-

sent.

Mobile v Bolden, 446 US 55' 91:
ni""zf,"ai, 

-1-oq 
?-t:, Lt;'rt ffi:L

establishes that an

:H;;';;st be.uPheld asainst c-on-

iir*ii"trr attack unless maintatneo

for a discriminatorl' purpose ln ir{o-

fji"'*;";;;;rsed 
-a. finding of u"":l.

ili;Ji;J vote dilution because the

i#";;;;tts had relied on factors

insufficient as. a. matter of law to

#ryi{ 
;;:,r'lu";t'; ;i rye 1]i:

if,bd-,prut"litv opinion of Stewart'

;l; Ti;-Di=ttitt court and court or

i;;;1. i,'1r'i' case based 
'1h"i,t'::-

i"'gi "r 
unconstitut::::] fiil"'#'#-

:Hil'l-itri:: i:,''n" court nou

i"J= ir,"it conclusion unexceptiona-

ilii"- iir-' rtlobile pluralitv also al-

firmed 
[45t L's G2s]

that the concePt'of "ilt:Il'

II

,,\'as no m"i" nction' 3nd h:t9- tl3l
Xi"=;1:.,;* c'"'i i'.'a ::1**":\:ili#=:;'id";ii ir'"'tut-",on"'1r;
fiH' iil"* ii'';n!idil*,':1"t,^*' :wnose IIrLErrr " '""=- id 2d 4?. 100 s
Id.. at 74, n 20' 64 L. --r^ l-,.rnrr
3t' ft'nbl' oi tr.,""gi' 1''" 

"-:Yl:', :"lll :i"iill,1ffi,il"" tl"ti"g strensth or the

;h 
,j;i' 

;.J-l"'-it'" question in this

The Court's decision todar relie's

h";;ir)-;; .h" '?11:il1"',T f:3;
eral districl courts-
;ffi ";;i standards ProPounded^' b]'

i'r,"t=' c"tt,-tc, determine u'hether

;'i:i;';;-r'"tins s'stems are "being

ir.i.[ir"a foi the invidious P']ff;:

S Ct 159h 19?0.' ^r^.) conrend thal the
[19b] Appelir':: .:,':':.r";iiur,nn ur,u,,ne

do-ctrine of unconst ltullor

iieit'r."i'g fronr an at larse;lffti1,:t.."il
does no1 applr t('flulli,:';;;";: f"r'ng previ'
find no merit l" thl:::.1';i"rirt ,i.r^'i. "r"i'ouslr aft,rnred a .ludfmerr' #Jrl 

-of 
a parish

tioni for the go'erntnl

'-':':,;;- ryid :#1 ill t+;* ['i-*' i
Cl 1063 {19;6' 

f02b

10. t18b] Appellant^' contend that tht Dis

,.i'.1 i"il'ii"'ra, l:l ^f T,d':il',Tr';:l:
counr r int o 

..fr '" 1'-"Ilil...' u''piln- io, .ui,a'
allou'ed appellants t",::H;;iliheir 

ptan for
vidrng the count\ and l""iiir"'r:"iini niq1,.
nreclearance under 5c t

';;';; ;i;i 111: ": l1Lld"""1,l;,1;it #' ;'"1
I42 USCS $ 1e?3cr "':#i';i";ppeal- a,,c

ixll,:?;':"."T r,iLr ;; ; r'\''- t hereror"t

;;;;;,il;;;. i' .Y 1';:!:'J Brlo*CS,
Cc..39E US 144 14'' n



U.S. SUPREME

black population." Ante, at 622,75 L
Ed 2d. at 1027. pederal courts thui
are.invited to engage in deeply sub_jective inquiries into the motlvations
of local offcials in structuring local
governments. Inquiries of this kindnot onl-v can be ',unseemlv." .see

Karst, The Costs of l\{otive-Clntered
llguiry, 15 San Diego L Rev 1163,
1164 (1978); they intrude the federai
cou.rts-q'ith onl.y the vaguest consti-
tutional direction-into an area of
intensely local and political 

"o.r"".r,.
- Emphasizing these considerations,
{qfti.S Stevens, post. at 642_6b0,7B
L Ed 2d. at 1094-l03g, argues force_full.t that the Court's foirs of i.,_quiry is seriously mistaken. I agree
u'jth much of u,hat he says. as I donot share his vierrr.s entirely, how-
ever, I write separately.

[458 US 630]
A

As I understand it, Justice Ste-
vens' 

_ critique of the Court.s ap-
proach rests on three principles u,ith
u'hich I am in fundamental ug."u-
ment.

COURT REPORTS 73LEd2d

Second, I agree with Justice Ste-
vens that vote dilution cases of this
kind are difficult if not impossible to
distinguish-+speciall-r. in' their rL-
medial aspect-from other actions to
I9q.gl1gerumanders. See po.t. ai65M53, 73 L Ed 2d. at 1089_1041.

Finall;, Justice Stevens clearlv is
correct in arguing that the standard
used to identilr- unlav,,ful racial Jis_
crimination in this area should be
defined in terms thar are iudiciai.l
manageable and rer.ieu,atle. Sel
post, at 633, 642-650, 78 L Ed 2d, at
1028, 1034-1038. In the absence oi
compelling reasons of' both laru anJ
fact, the federal judiciarl. i. un*ur_
ranted in undertaking to restructure
state political s1'srems. This is inher_ently a political area, r+.here the
identification of a seeming violation
does not necessarill- suggest an en_
forceable judicial ' .emed1,-o, at
least none short of a sJ.stem of quo-
tas, or group representation. Anf.
such s],stem, of course. would b;
antithetical to the principles of our
democracr'.

First, it is appropriate to distin_
guish betu'een "state action that in-hibjts an indir.idual's right ; ";i"and state action that aflLcts the po_

liji:gl strengrh of various g.nrp!:
Mobile v Bolden. supra. at gg. Oa L
Ed 2d 47, 100 S Ct tagCr rsreveni. .ll
:glcuIinq in judgnrent): see posr. ar
632. 637-636. n 16. 78 L Ed 2d. ar
1027. 1031. Under this distinciio;,
this case is fundamentallr. difl-;e;;
from cases inr.olving direct tr*i".ito voting. There is no clainr herethat blacks ma\. not register freelr.
and 

'ote {br u'hom tn"-r:?f,ulr*. i;;:
case also differs fronr one_man, one_
vote cases. in u'hich districting prac_
tices- nrake a person's vote ^ 

les-.
'r'eightf in some districts than i;
others.

1026

B

Justice Stevens vi.ould accontmo_
date these _principles br. holding thar
suDJecttve rntent is irrelevant lo the
establishment of a case of' racial votedilution under the Fourteenth
Amendment. See post. at 68?. ?3 L
Ed 2d. at 1031. Desprte sharing the
concerns

[458 US e3r]
from u'hich his position is de-

veloped. I u,ould nor accept this
vieu,. "The central purpose of the
Equal Protection Clause of the Four-
teenth Amendment is the prevention
of official conduct discriminating onthe basis of race." \4,ashlngon 

-v
Davis. 426 US 229. 2Sg. aS l"fi Za
597. 96 S Ct 2040 r19T6r. B""uu-..* iam unu'illing to abandon this cen_



73LEd2d

:h Justice Ste-
n cases of this
t impossible to' in their re-
ther actions to

See post, at
r 1039-1041.

,ens clearlf is
I the standard
'ful racial dis-
"ea should be
are judicialll-
'ie*'able. See
'3 L Ed 2d, at
re absence of
both la'*' and
rrf is unrvar-
[o restructure
This is inher-
., u'here the
ring violation
lggest an en-
nedr,-or at
;stem of quo-
:tation. An.r'
e. r.r'ould be
ciples ol' our

d accommo,
holding that
evant to the
lf racial vote
Fou rteent h
rt 63?. 73 L
sharing the

rsition is de-
accept this
pose of the
of the Four-
: prevention
ninating on
rshington \r
48LEd2d
,. Because I
n this cen-

ROGERS v LODGE
458 US 613. 73 L H 2d 1012. I02 -s Cr 3272

tral principle in cases of this kind, I
cannot join Justice Stevens' opinion.

Nonetheless, I do agree with him
that u'hat he calls "objective" factors
should be the focus of inquiry in
vote-dilution cases. Unlike the con-
siderations on u'hich the ]o'*'er
courts relied in this case and in
Mobile, the factors identified b1' Jus-
tice Stevens as "objective" in fact
are direct, reliable, and unambigu-
ous indices of discriminatory intent.
If we held, as I think we should, that
the district courts must place pri-
,mary reliance on these factors to
establish discriminat.ory intent, w'e
u'ould prevent federal-court inquir-
ies into the subT'ective thought pro-
cesses of local officials-at least until
enough objective evidence had been
presented to u'arrant discovery into
subjective motivations in this com-
plex, politicall-v- charged area. By
prescribing such a rule '*'e u'ould
hold federai courts t.o a standard
that u'as judiciallv manageable. And
vge would remain faithful to the cen-
tral prot.ective purpose of the Equal
Protection Clause.

In the absence of proof of discrimi-
nation by reliance on the kind of'
objective factors identified b1' Justice
Stevens. I u'ould hold that the fac-
tors cited b1' the Court of Appeals
are too attenuated as a matter of'
lavu to support an inference of dis-
criminaiorf intent. I vuould reverse
its judgment on that basis.

Justice Stevens, dissenting.
Our Iegacy of racial discrimination

has left its scars on Burke County,
[458 US er2]

Georgia.r The record in this case
ampl-v supports the conclusion that
the governing officials of Burke
County have repeatedly denied black
citizens rights guaranteed by the
Fourteenth and Fifteenth Amend-
ments to the Federal Constitution.
No one could legitimately quesrion
the validitl of remedial measures,
u'hether legislative or judicial, de-
signed to prohibit discriminatory
conduct by public officials and to
guarantee that black citizens are
effectivel.v- afforded the rights to reg-
ister and to vote. Public roads may
not be paved only in areas in u'hich
white citizens live;2 black citizens
may not be denied employment op-
portunities in county government:3
segregated schools may not be main-
tained.n

Nor, in m5'opinion, could there be
any doubt about the constitutional-
it1' of an amendment to the Voting
Rights Act that u'ould require Burke
Countv and other covered jurisdic-
tions to abandon specific kinds of at-
large voting schemes that perpetu-
ate the efiects of past discrimination.
"As against the reserved powers of
the States. Congress may-. use an)'
rational means to effectuate the con-
stitutional prohibition of racial dis-
criniination in voting." South Caro-
lina v Katzenbach. 383 US 301. 321.
15 L Ed 2d 769, 86 S Ct 803. It

l. Certain vestigr: ol discrimination-al.
though ciearl.\'not the m(,st pressing prob.
lems facing black cirizens todar'-are a haunt.
ing remincier ol an all too recent perio<i of our
Nalion's histor,r The Disr rict Clouri Ioutrd
thal a segregated laundromal is operared
u'ithin a feu blocks of the count.r' courthouse.
at the courthoust,itselJ. faded paint over rest-
room doors does not entirelv conceal the

q'ord: "colored" and "uhite.''

2. See Doudell v Cirl of Apopka. 511 F
Sup1, 1375 tIllJ PIa 1961 r

3. 13 USC S 20me-2 i42 LISCS S 20ocre-21

4. Broun r Board of Education. 347 US 463.
98 L Ed t173, 74 S Cr 666. 53 Ohio Ops 326, 36
ALR2d I rU()

t027



U.S. SUPREME COURT REPORTS 73LEd2d

might indeed be wise policy to accel-
erate the transition of minority
g"oups to a position of political
power commensurate with their vot-
ing strength by amending the Act to
prohibit the use of multimember dis-
tricts in all covered jurisdictions.

The Court's decision today, how-
ever, is not based on either its own
conception of sound policy or any
statutory command. The decision
rests entirely on the Court,s inter-
pretation of the requirements of the
Federal Constitution. Despite my
sympathetic appraisal of the Court's
laudable goals, I am unable to agree
with ifs approach to the constitu-
tional issue that

[458 US 63it]
is presented. In my

opinion, this case raises questions
that encompass more than the im-
mediate plight of disadvantaged
black citizens. I believe the Court
errs by holding the structure of the
local governmental unit unconstitu-
tional without identifying an accept-
able, judicialll, manageable standard
for adjudicating cases of this kind.

I
The Court's entry into the busi-

ness of electoral reapportionment in
1962 was preceded by a lengthy and
scholarl-v debate over the ro16 the
judiciary legitimately could pla1. in
what Justice Frankfurter deicribed
in Colegrove v Green, g2g US S4g,
90 L Ed t492, 66 S Ct 119g. as a
"political thicket."5 In that case, de-
cided in 1946, the Court declined to
entertain a challenge to single-mem-
ber congressional districts in Illinois
that had been created

[458 US 634]
in 1901 and

had become grossl-_v unequal b1. rea-
son of the great grot'th in urban
population.6 In dissent, Justice Black
advocated the use of a statewide, at-
large election of representatives; he
argued that an at-large election ..has
an element of virtue that the more
convenient method does not have_
namely. it does not discriminate
against some groups to favor others,
it_ gives all the people an equally
effective voice in electing theii rep-
resentatives as is essential under a
free government, and it is constitu-

5. In his much criticized opinion announc.
ing the judggnent of the C,ourr, Justice Frank-
furter r{rote:
"Nothing is clearer than that this controversr.
concerns matters that bring courl. inro imme-
diate and active relations with part-v contest.s.
From the determination of suth issues this
Court has traditionall.v held aloof. It is hostile
to a democratic sl,stem to involve tf," luai-ciar-t in the politics of the people And lt is
not less pernicious if such judicial intenen-
tion in an essentiall.v potiticat contest be
dressed up in the abstract-phrases of the la,rr

LOy* _oughr not to enter thi. poiiticat
thicket. The remedl. for unfairnes_s in distrrct-
ing is to secure State legislatures thar *.il)
apportron-properl.r. or to invoke the ample
powers of C,ongress The Constitution has
man.\' commands that are not enforceable bv
courts because the.r. clearl.r fall ourside the
conditions and purposes that circumscribe ju-
dicial action Thus. 'on Demand of the exeiu-

1028

trve Authoritv,' Arr I\', $ 2. of a Srat€ it is the
duty of a sister State to delrver up a fugitive
from justice. But the fulfilment of thi.--d,rt.,
cannol be judiciall.r.enf<rrced Kentuckv i,
Dennison, 24 Hou 66. 16 L Ed 717. The durr.
to see to .it that the lau.s are faithfullr exe.
cuted-cannot be broughr under legal compul.
sion. Mississippi v Johnson. 4 Wall 475, l-g L
Ed 437. Violation of the great guarant-v of a
republican form of government in States can-
not be challenged in the courls. pacific Tele-
phone Co. v Oregon, 228 US 116. 56 L Fn Bi7.
32 S Ct 224. The Constitution has left the
performance of manr. duties in our govern.
mental scheme to depend on the fidelitv of
the executive and legislative action and. ulti.
matell. on the vigilance of the people in
exercising their politicai rights." 32S US. at
55L554,556.90 L Ed 14J2.66 S Ct 1198.

6. The districls ranged in population from
112,000 to 914,000 persons Id.. ar bS?. 90 L
Ed 1432.66 S Ct 1198.



73LEd2d

r into the busi-
pportionment in
ry a lengthy and
er the role the
y could plaf in
furter described
rn, 328 US 549,
i Ct 1198, as a
ln that case, de-
lourt declined to
e to single-mem-
;tricts in Illinois
d
i34l

in 1901 and
unequal b1'rea-
rowth in urban
rt, Justice Black
a stateu'ide, at-

,resentatives: he
'ge election "has
r that the more
loes not have-
ot discriminate
to favor others,
rple an equally
rcting their rep-
sential under a
d it is constitu-

l. of a State it is the
leliver up a fugrtive
ilment oI this dutr
<lrced. Kenruckl r'
L Ed 717 The dutl'
, are faithfulll' exe-
.rnder legal compul-
n. 4 Wall 475. 18 L
4reat guarant.r' ol a

ment in States can-
courts Pacific Tele-
is 118. 56 L Fi 377.
tution has left the
ties in our govern-
I on the fidelitl' of
ive action and. ulti-

of the people in
rights " 326 US, at
l. 66 S Ct 1198.

in population from
s. Id., at 557, 90 L

ROGERS v LODGE
458 US 613. 73 L Ed 2d 1012. 102 S Ct 3272

tional." Id., at 574,90 L Ed 1432' 66

s ct 1198.

In 1962, the Court changed course'
In another challenge to the constitu-
tionality of a 1901 districting stat-
ute, it held that the political ques-

tion doctrine did not foreclose judi-
cial review. Baker v Carr, 369 US
186, 7 L Ed 2d 663, 82 S Ct 691.

That decision represents one of the
great landmarks in the historY of
this Court's jurisPrudence.

Two aspects of the Court's oPinion
in Baker v Carr are of sPecial rele-
vance to the case the Court decides

today. First, the Court's scholarll'
revieu- of the political question doc-

trine focused on the dominant im-
portance of satisfactory standards
ior judicial determination.T Second'
the Court's articulation

[458 us 635] 
of the rele-

vant constitutional standard made

no reference to subjective intent.s
The host of cases that have arisen in
the u'ake of Baker v Carr have
shared these tu'o characteristics.
They have formulated, refined. and
applied a judiciallv manageable
standard that has become knou'n as

the one-person, one-\'ote rule: thel'
have attached no significance to the
subjective intent of the decisionnlak-
ers u'ho adopted or maintained the
official rule under attack.

In revievring the constitutionalitl'
of the structure of a local go\-ern-
ment. two quite different methods of
analysis could be emPlol'ed. The
Court might identify the specific fea-
tures of the government that raise
constitutional concerns and decide
u'hether, singll or in combination,
they are valid. This is the approach
the Court has used in testing the
constitutionalitl' of rules condition-
ing the right to vote on PaYment of a
poll tax,' imposing burdens on inde-

?. The Court staled that the "nonjusticiabil-
itl of a political question is primarill' 1 lunc
tion of the separation of pou'ers " 36ll US' at

2tO. i L Ed 2d 663. 82 S Ct 691. It empha'
siz.ed. houeler. that ''the lack of satisfactorl
crrteria for a judicral determination" \ as a

don.rinant c<.rnsideration in Coleman l Miller'
30; us 433. 454-455. tt3 L Ed 1365. 59 S Ct

972. 122 ALR 695: that s'hether a lbreign
relations question is justiciable turns. in part'
on "rts susceptihilrn t<, judicial handlinc";
that in the presenct' of clear).r' definable crite-
ria for decision "the political quesr.lon barrier
falls ar,r'ar"': and that "even in private litigrr'
tion uhich directlf implicates no feature of
separation o{ pout'rs. lack of judicialll discor-
erable standards and the drive Ior elel)'
handed application nrar impe) relerence t<r

the political dep3rtmenls' determrnation of

darei of hostilities begrnning and ending "

369 US. at 210.211.211.7 L Ed 2d 663.82 S

Cr 691. Luther v Bc,rden. ? Hos 1' 12 L Ed

531, u'as distinguished in part. because that
case involved "the lack ol criteria b-v q'hich a

court could derernrine nhich form of govern-

ment sas republrcan": tht' Court stated that
"the onll signifrcance that Luther could havt
for our inrmedrate purposes is tn its holdrng

that lhe (luarantr ('lrust' is nol a repositor]

of judiciallr- manageable standards u'hich a

court could utilize rndependentl-r in order to
identifi a Stale's Iau'ful governme-nt- " 3-6!t

US. at 222. 223.; L Ed 2d 663. 82 S C't 691

In concluding that tlrt' reapl'orlioltmenl ques'

tion before il u'as justiciable. the Court em'
phasized thai it u'oulci no1 be necessar) "to
entel upon policl delernrinations lor shich
judicial)1 manageable standards are Iacking'"
ld.. al 22i;. ; L Ed 2d 663. El S C\ 6!rl

8. The Couri simPl1 stateg.
"Judicial standarci. under the Equal Protec
tion Claust are uell developed and lanriliar'
and it has beer, opetr l() cou!'1s sinc'" tht'
enactment oI tht- Fourreenlh Anlendnlent to
derermine. if on the part tcular factt the.r'

musl. that a dlscrtnltnation reflects n() pc)llc)'
but simpil arbitrarr and caprtctous action'"
Ibid

9. Harper r' \'irginra Board of Elecilon'. 36ll
US 663. 16 L Ed 2ci 169.8(i S Cr l0?!r The
Court con: lucied that ' a Statt' r'ioirites the
Equa) Prolecrron ('laust' ol the Fourreenth
Amendment uhener-er it makes the aflluence
of the voter or paYmenl of anl fet' arl elec-

loral standard Yott'r qurlification: havt no

relsttart, tc, uealth nor to pul ing o: nt't plling
this or anl o'.her tax " Id.. at 666. 16 L Ed 2d

169. il6 ,s Cr l0;9. "To introduct' ',r'ealth or

1029



U.S. SUPREME COURT REPORTS 73LEd2d
pendent candidates,to denyins

[458 US 636] -

residents or members of the A.Xr"":
Forces the right to vote,r prohibitinj
crossovers in party primaries,!2 re_quiring political candidates to pav
filing fees,'3 and disadvantaging ;i_
nority parties in presidentlal -elec-
tions.r. In none of these cases did thevalidity of the electoral procedure
turn on whether the legislators who
enacted the rule subJectively in-
tended to discriminate againsi mi_
nority voters. Under the approach
employed by the Court in' those
cases, the objective circumstances
that led to a declaration that an
election procedure was unconstitu-
tional would invalidate a similar law
wherever it might be found.

. 
Alternatively, the Court could em_

pi-of' a subjective approach under
u,hich the constitutionality of a chal-
leng-ed procedure depenjs entireiy
on federal judges' appraisals of thl
reasons why particular Iocalities
have chosen to govern themselves ina particular \r'ai'. The Constitution
would simplS' protect a right to t ar"an electoral machinerl. lstablished

and maintained without the influ_
ence of impermissible factors. Consti_
tutional .challenges to identical p.o-
cedures in neighboring communities
could produce totally different re-
sults, for the subjective moth,ations
ot the Iegislators vvho enacted the
procedures---or at least the admissi_
ble evidence that might Ue aiscou_
ered concerning such- motivation_
could be quite different.

. In. deciding the question presented
rn thls case, the Court abruptly re_jects the former approach and'con_
siders only the latter. It starts from
the premise that Burke Cor"tvi ,i-
large

[458 US 637]
method of electing its five

county commissioners is, on lts face,
unobjectionable. The otheru,ise vaiij
system is unconstitutional. however,
because it makes it more aifficuti for
the minority to elect commissioners
and becau.se the majority that is norl
rn power has maintained the system
for that very reason. T*,o facto;;;;
a.pparently of critical importance: (1)
the intent of the majority to main-
tain control; and (2) the racial char-
acter of the minority.rs

pa.vment of a fee a-( a measure of a voter.s
qualifications is to introduc" 

" ."p.,.ioui- o.
ir-relevanr faoor." Id.. a1 666. fO f- ea ZJiO.q.
86 S Ct 1079. In dissenr. Justice gl;"h-"oi"d:
It should be pointed out al once thar theLourl s declslon is to no extent based on a

findrng, rhat the Virginie, lro u. o.ritt"n o. u.applred ls belng used as a device or mecha-
nlsm to den.r' Negro citizens of Virginia therlFhl to vore on account of their color.'. ]d.. ar
672, 16 L Ed 2d 169.86 S Cr rOzs.---'

_ 10. Storer r.Brol,n. 4lS US 724,5g LA 2d
7.14. 9t S Ct 1274. The Court ,t"t"a if,ri l"determining the constit ut ional it-r. of 

"rieilli 
ii ;

requiremenlc for independenr cunaiartlr, it"' rnevrra.ble question for judgmenr'. is .'could 
a

reasonablv diligent independent candidare beexpected t<, satisf.r.the signature requiremeils. or u.ill it be onl.r rarely tnri 
-if,"

unaftiliared candidate u.ili'succeeJ i"- g"r,ir^
on^the batlor?" Id. at ?42. Bg L Ed iJ ti;.'i;i
S_Ct 1274 See Mandet - b.uaf"t,-tS-tL;Sj?i
177: id., at tiit. ES L Ed 2d 19,:'9? S Cizc'3s
r030

(Steven.. J.. dissentingr See alsc, American
Iq.lt. 9f Texa-. v Whrte-. 4li US T6;. ZgS,'ig i_Ed 2d 744,94 S Cr 1296.

ll. Dunn y Blumstein, 40i US 330. gt L Ed
?4^274.92 S Cr g9S; Carrington r. no.f.,. aAft
US 89, l3 L Ed 2d 625. 85 S ar 7?5

_.12. Kusper v Pontikes,4f4 US 51.88 L Ed
2d 26().94 S Cr 803.

13. Lubin v Panish, 4f5 US 709, 39 L Ed 2d
702. 94 S Cr l3lb: Bullock r. Carrer, 405 USlII. 3l L H 2d 92.92 S Cr 849

14. \4'illiams v Rhodes, B9S US 25. 2t L H
2d 24. 89 S O 5, 45 Ohio Ops 2d 236

15. The Caurt's articulation of the applica-
ble standard in this case is,o-""i,ui'fu,
zling lt states that this ca-se is subjecr to ;,n"
1and.a! of proof generall.r. applicaUie io
Egual Protection Clau-se ca"e.. " Ante, at ef i,
73 L Ed 2d, at l0l8 Bur tater in the same



73LEd2d

'ithout the influ-
rle factors. Consti-
to identical pro

ring communities
rlly different re-
ctive motivations
who enacted the
east the admissi-
might be discov-
rch motivation-
ent.

restion presented
rurt abruptly re-
rproach and con-
rr. It starts from
rrke County's at-

6.371

rf electing its five
rs is, on its face,
r otherwise valid
rtional, however,
more difficult for
:t commissioners
ority that is now
rined the system
. T\r,o factors are
.l importance: (1)
rajority to main-

. 
the racial char-

See also American
15 US 767. 795. 39 L

r05 us 330. 31 L Ed
rington v Rash. 38(t
S Cr 775.

4r4 us 51. 38 L Ed

us 709. 3-e L Ed 2d
'k l Carter. 405 tl-s
t &r9

393 US 23. 2t L U
)ps 2d 236.

rtion of the applica-
r is somex'hat puz-
,se is subject to "the
'alll applicable to
ases '' Ante. at 617.
: later in the same

ROGERS v LODGE
458 US 613, 73 LA 2d fi12, 102 S Cr 32i2

I am troubled by each aspect of
the Court's analysis. In my opinion,
the question rvhether Burke Coun-
ty's at-large system maY survive
scrutiny under a purely objective
analysis is not nearl-"- as easY to
answer as the Court implies. Assum-
ing, however, that the system is oth-
er*'ise valid, I do not believe that
the subjective intent of the persons
vvho adopted the system in 1911, or
the intent of those who have since
declined to change it, can determine
its constitutionality. Even if the in-
tent of the political majority u'ere
the controlling constitutional consid-
eration, I could not agree that the
onl.v* political groups that are enti-
tled to protection under the Court's

rule are those defined by racial char-
acteristics.

II

At-large voting systems generally
tend to maximize the political power
of the majority. See ante, at 616, 73
L Ed 2d. at 1017.'6 There are,

[458 L]S 6381

however,
man]' types of at-large electoral
schemes. Three features of Burke
Countl's electoral s-vstem are note-
worthy, not in m1' opinion because
they shed special light on the subjec-
tive intent of certain unidentified
people, but rather because they
make it especially difficult for a mi-
nority candidate to win an election.

paragraph, the Court indicates that its special
requirement of a shou'ing of discriminator5'
intent merel.v applies to equal protection
cases "charging racial discrimination." Ibid
The Court seems to impll that plaintiffs in
equal protection cases charging racial discrim-
ination must surmounl a special hurdle in
order to prevail. \'et the Court has unequivo-
calll stated that a ''racial classification. re'
gardiess of purported motivation. is presump'
tivelv invalid and can be upheld onll upon ar:

extraordinarl justification.'' Personnel Ad-
mirristrato:' of N1ass r Feene.t'. 44! US 256.

272 60 L Ed 2d 67tr. 99 S Cr 2282

16. In the vvords of Chancellor Kent. the
requiremeni of districting "u'a-. recommended
bl the u'isdom anC justice ol giving. as Iar a-'

possible. to the local subdivisions of rhe pec"
ple o{ each stale. a due influence in the chotce
of representatives. s<i as nol to leave the
aggregate minoritl of the people in a state.
though approaching perhaps to a major)l\. to
k sholl.r overpou'ered b.r the combrned ac-

tion o1 the numerical majoritr', r*'ithout an.r'

\'oice uhatever in the national counciis." I J.

hent. C<.rmmentaries on American Lau '23(l-
231. n rc, rl2th ed 1873r See also Mobile v
Bolden. 416 US 55, 105. n 3. 64 L Ed 2d 4i.
10(r S Ct 1490 tlUarshall. J.. dissentingt; Whit-
comb r Chavis. 403 US 121, 156-160. 29 L Ed

2d 363. 91 s C\ 1858

The challenge to multimember or at-large
districts is, of course, quite diflerent from the
challenge to the value of individual votes
considered in Re1'nolds v Sims. 377 US 533,
12 L Ed 2d 506. 84 S Ct 1362. An at-large
s]'stem is entirel)'consistenl n'ith the one
person. one-vote rule deve)oped in that case.
As Justice Stes'art noted in l\lobile, in consid-
ering the applicability of Re1'nolds and the
ca-ses that folloqed it:
"Those cases established that the Equal Pro-
tection Clause Efuarantees the right of each
voter [o'have his vote u'eighted equalll'*'ith
those of all other citizens' 377 US, at 576 [12
L Ed 2d 506. 8i -s Cr 1362j The Court recog-
nized that a voter's right to'have an equalll
efrectise voice' in the election of representa-
tives is impaired u'here representation is not
apportioned substantialll' on a population ba-
sis ln such ca-ces. the votes of persons in more
populous districts carrl less weight than do
those of p€rsons in smaller districts There
can be. of course, no claim that the 'one

person. one lote' principle ha-. been violated
in this case. because the city of l\lobile is a

unitarl- electoral district and the Commissibn
elections are conducted at large. It is there'
fore obvious that nobody's vote has been 'di-

luted' in the sense in u'hich that u'ord s'as
used in the Revnolds case " 446 US. at 7?-78,
64 L Ed 2d 4?. ltxr S Ct 149() tp)uralitl
opinion t.

See also rd.. ar 83. 64 L Ed 2d 47, 100 S Ct
1490 (Stevens. J.. concurring in judgment t.

1031



U.S SUPREME COURT REPORTS 73LEd2d
First, although the qualifications
and the duties of the office are lden_
tical for all five commission".., 

"u.hr31s for a separately designated po-
sition.tT

[458 US 63e]
Second, in order to be

elected, each commissioner must ,e-
ceive a majority of all votes cast in
the primary and in the general elec-tion; if the leading cindidate re-
ceives only a plurality, a runoff elec_tion must be held. Third, there arl
no residency requirements; thus, all
candidates could reside in a single,
all-white neighborhoefl . 

rr

Even if one assumes that a system

of local government in which powerrs concentrated in the hands of asmall group of persons elected from
the communit.v at Iarge is an accept_
able--o_r perhaps even a preferred'_
lorm of municipal government,rp it isnot rmmediately apparent that these
additional

[458 US 640]
features that help to per-

petuate the por+'er of an enirenched
majority are either desirable ;; i"-gitimate.m If the only purpo"" it 

"r"features se.ue-pu.ilcutaitr. ;ir";
vlewed rn combination_is to assist adominant party to mainrain itrp"ilt-
rcal power. thel' are no more llgiti-
mate than the Tennessee distrlcts

t

t
I

I
:

I

I7, This feature distinguishes Burke Coun_ty's atJarge electoral system from th" .;;i;;-pal commission form of g"""r";";i-;;;;;;_
ized by reformers shonl.r.'after th" ;r;;f i;"c-entur.v and knorx.n as the Galveston plan oithe Des Moines plan. See n 19. ini;;.-

l8-. Other features of certain atJarge elec-toral schemes that malie ir more almcrii f".,minorit_v group to elect a l.avored 
""na,arJuhen.bloc voting occurs_p.ofriUltio* .suii.icumulatjve and incompleie voting_6[-'noi

invoh,ed in rhis case 
' prohibiil,i. lgri".icumulative or partial r.oting are 

"*.1."if,rnapptlcable in electoral schemes inr.olving
numbered posts

I9, During it^c evolurron as a progressir.e
solution to municipal prob.lems. ti" 

-!"_rnr.-
ston ,ormat wzr-. r.ari<rusl.r knou.n as the Gal.veston plan. the Texas idea, and ti," O".Moines plan. Since Galr.eston i;.,""1;; ;;;basic organization and O". Uoin"i'p"irll.-
ized the additron of relared ."f"; ;;.t;'i;;..
1!" ,.:" ,t.rp* 9f go\.ernmenr is probabl.: 

-be-sr

qescrloed a.s the Galveston-Des Moines planSo popular did the neu idea b".;;;';h;touns could reap adr.t,rtrsing benetirs f<rr-'be.lnt rn the l<.rrefront of municrpal tnnor.ation il.the.r used the commissrun ptan Conse;;i;.
some cities boasted thar the-v had the ;_";i;;,knou'ing full r*'ell that their 

"h;.i;- ;;;Iittle resemblance ro Galveston's. B;i-,h;;;were certain essentials necessar.y before a citt:could claim commissjon status. nen;aminDeU'itt, an ear.l.r. histor.ian .f tf,u p-S;:,".i*
molement. explained:

" 'In ever.v case. hos,ever, no matter hou.much charters ma.r. difler as to minor detalls,the.r'hat'e certair: fundamental features in
1032

common. These fundamental features of com-mission charters are four:
. "1. Authority and responsibjlit-r. are central-
ized.

"2. The number of men in whom this au-thorjt.v and this responsib;lit.r' ,."' ,"riua"i.
small.

"3. These fen men are elected from the citr.at large and not b_r. wards or districts.
- "4. Each man is at the head of a singledepartment.'
"The most radical departure the nerscheme made u.as the comtinatron of i"oi.l,ti'e and executi\.e funcrions ln on" uJrl'ii,lplan d.isregarded the federal -ra"f oi."pr.r-tion of po\ .ers. Sitting togeth".. tt " "o.rirnil-sron \^'as a..t.r'pical polic-r.. and ordinance-mak-rng council: but. separarel.r.. each.orn_ii

sloner aclmrnlstered a specific department ona. da1'-toda1. basis. The original Crli=ito"
charter pror.ided for a ma.r.or-prestdent plus
commissioners of finance ,nd ."""nuo. *,"'t"1,
u'ork*. and ser.erage. streels and public oroaerr.v. gn! fire and police Later 'co^rni!ii-o'n
cities follo*eC a similar drvision 

"f ;;;;;;;;:bilitv " B Rice. progressir.e Ciries Th;-C";
mrsslon Uovernment Movemenl in America,
1901-1920. pp xiir_xir. rtg77r rfootno;;;i;l
ted r.

20. Ir is noteu,orthl. thar these features
apparentl.r' characterize man.r, governmental
units in jurisdrctions that har.e bL,, ;;;;;";to the srrictures of rhe Voti"s nig|t i.illthe ,resulr of prior practices tf,ji 

"r.lraJjblack cltizens from the electoral p.oc.s.. S*ogeneraljr_The \joting Righrs e.r: t,nirlfif f 

"juoals. A Heport of the [.]nited States Commis-
sion on Civil Rights SS_b0 (1981).



73LEd2d

in which power
,he hands of a
ns elected from
'ge is an accept-
n a preferred-
vernment,re it is
rrent that these

{01

hat help to per-'an entrenched
desirable or le-
I purpose these
:icularly u'hen
n-is to assist a
rintain its polit-
no more legiti-
nessee districts

al features of com.

.sibilitl are central-

in r*'hom this au-
riiit.'- are vested is

ected from the citl'
rr districts.
r head of a single

,parture the nes
bination of legrsla-
rs in one bod.r The
al model of separa'
ether. the commis-
rnd ordinance-mak-
e).v. each commis'
rific department on
original Galleston
r1'or-president plus
nd revenue. g'ater-
L-. and public prop
Later commission

ivisron of responsi-
e Cities: The Clom-
:ment in America.
i?t (footnote omit"

tat these features
anl governmenta)
rave been sub.)ected
ting RighLs Acl as
ces that exc)uded
clorat process See
t-. Act Llnfulfilled
ted Srates Commis-
l98l r.

ROGERS v LODGE
458 US 613. ?3 L Ed 2d 1012. 102 S Ct 3272

described in Baker v Carr as "no

Dolicy, but simply arbitrary and ca-

tricious action." 369 tIS, at 226, i L
ba za 663, 82 S Ct 691 (emPhasis in
original). Unless these features are
ind-ependentll' justified, they may be

invaiid simply because there is no

legitimate justification for their im-
pa;t on minoritl'' ParticiPation in
elections.2l

In this case, aPPellees have not
argued-PresumablY because theY

asJumed that this Court's many ref-
erences to the requirement of prov-
ing an imProPer motive in equal
protection cases are controlling in
ihi. .,e* cont,ext-that the special
features of Burke County's at-large
sYstem have such an' 

t456 us *ilr"."" 
impact

on the minority's opportunitl' to par-
ticipate in the political process th.at

this type of Elovernment deprives the

minoritl' of equal protection of the
Iau'. Nor have the appellants sou€iht

to identifS' legitimate )ocal policies
that might justifY the use of such
rules. As a result, this record does

not provide an adequate basis for
determining the validit.r' of Burke
County's governnlentai structure on

the basis of traditional objective
standards.2:

If the governmental structure
were itself found to lack a legitimate
justification, inquiry into subjective
intent r"'ould clearll' be unnecessar-v
As Justice 1\Iarshall stated in his
dissent in Mobile: "Whatever mal'be
the merits of applving motivational
anall'sis to the allocation of constitu-
tionalll' gratuitous benefits. that ap-
proach is completell' misplaced

'*'here. as here. it is applied to the
distribution of a constitutionalll pro-

tected interest '' 446 US, at 121' 64L
Ed 2d 4?. i00 S Ct 1490.'z" Under the

21. t'No group has a right to proporrional
representaiion See I\lobile v Bolden. 446 LIS'

ar 75-76. 64 L Ed 2d 4?. 1O0 S Cl 149()

tp)uralitl opinionr: id ' at 122' 64 L Ed 2o 4?'

foo S Ct 1490 t\larshall. J., dissenting' But

in a represenlative democracl. meantngfui
particrpatron bl minoritl' groups in the elec-

iora) proces: is essential to ensure that repre-
seniatlve bodies are responsive to the entire
electorste. For this reason. a challenged elec-

toral procedure ma] no1 be jusrified solell' on

the giound thal it serves to reduce the abilitl
of a minoritl group to participate eflectrvell'
in the electoral Process

22. The record nevertheless dtrs indicate
that the validit.v of the at-large s.r'stem it.sell

need not be decided in this ca-se For it is

apparent that elimination of the majoritr
runofl requirentent and the numbered post-s

u'ould enabie a wellorganized minorin to
elecl ont'or tu'o candidates to the Countr'
Board That consequence could be achieved
u'ithout replacing the at'large s'r's!en: itself
u'ith five single-member disrricts. ln otht'r
u'ords. minorill access to the polltical prtress
could be eflected b-r' invalidaling specific' rult''
that impede thal access and without changing
the basrc struclure ol the local golernmental
unit. See l\lobile v Bolden. supra. a! ttO. 64 L

Ed 2d 4?. lo(i S Cl l49t) (Blackmun. J.' con-

curring in result;

23. Ir is uorth repearing tht' slatemenl of
Prolessor Ei1' nored bl Justice l\Iarshal):
"'l'hr' danset" I see ts the someuhat diflerent
one thar rhe (lourt. in its neu.-found enthusi-
asm for motilatiot: anail'sts. u'ill seek to ex'
oort it to fields u he:. it has no busrnes' It
ihe:'ei'ore cirnnoi l,t enrphasized too strongl.r
that analr'-sis of morivatron is appropriate
onlv t<, claims of improper discrimination in
thedistribution o{ good. that are constitution-
alll graruitous rlhlr: is. benefit: to rrhich peo-

ol" oi,' nor entitleo as 3 nratler of substantive
constrtuti,,nai righr' ln such case' Ihe covert
emplovnrent oi a principle of selecrion thal
could not constitu'.lotralll bt' emplol'eci overtll
is equall.r' unconstitutional Hc'uever' uhere
t hai is cienieci .l.' -sonl('t.hln! to shii']; the
complainani lra.' a -substan t ive' cc'nstitutional
rlghi--either bec:use it is granted b-r - 

the
terms of tht-Clonstitution, or because it is

esst,ntial 1() the eflectrve functi<-rning ol a dem-
(rcratlc goverltn)enl-lhe rer.sons 11 g'3's de-

nied are' irrelevant It ma.r' become important
in courl what justllications c<-runsel f<ir the
state can articulatt in support ol it: denial or
n()r'-Dr()\'isi()n. bu: th*' reasons that acrualll
,nspi.ed rhe dental n('\er can T<, ha'e a right
to iomelhrng is t<, have a clainl on it irrespec-
rive of uhl it is denieci lt uould bt'a traged.r'

1033



U.S. SUPREME COURT REPORTS 73LEd2d
[458 US 642]

Court's analysis, however, the char_
acteristics of the particular form ofgovernment under attack are virtu_
ally irrelevant. Not only would the
Court's approach uphoid an 

".Ui-trary-but not invidious_system
that lacked independent jusiinca-
tion, it would invalidate_if a dis_
criminatory intent were proved_a
local rule that would be' pe.iecttu
acceptable absent a showing of invi-
dious intent. The Court's "rt."a"ri
applies not only to Burke Countv
and to multimember districts. but tL
an-l' other form of government as
well.

III

. Ever- since I joined the Court, Ihave been concerned about the
Court's emphasis on subjecti"" ln-
tent as a criterion for conltitutional
adjudication.u Although ttat crite-
rion is often

[458 LrS 643]

- regarded as a restraint
on the exercise of judicial power, it
ma.r' in fact provide judgei rx,ith a
tool for exercising power that other_
u'rse u'ould be confined to the legis)a_
ture.25 M1 principal concern witir the
suoJectlve-lntent standard. hou.ever.

is unrelated to the quantum of
power it confers upon the judiciary.
It is based on the qualit): of tfrii
power. For in the long run constitu-
tional adjudication that is p.emisld
on- a case-by-case appraisal of the
subjective intent of- iocal decision-
makers cannot possibly satisly the
requirement of impartiil administra-
tion of the law that is embodied in
the Equal protection Clause 

"i1h;Fourteenth Amendment.

The facts of this case illustrate the
ephemeral character of a constifu_
tional standard that focuse. or, ,ub-jective intent. When the sult rnlas
filed in 1926, approximatelv 5g nei
lent of the population of gu.ke
Uounty was black and approximatelv
42 percent u'as white. tieiause Ulacii
citizens had been denied ,.."r. io
the political process-through -"..rithat have since been outlawed bv
the Voting Right-s Act of f 965_and
because there had been insufficieni
time to enable the registration oi
black voters to overcome the history.
9f pasl injustice. the majoritl, of reg-
istered voters in the iorniy *"-r1
u'hite. The at-large electoral 

'system

therefore sened, as a result of tl"
presence of bloc voting. to maintain

of the firsr order u'ere the Court to expand itsburgeoning a\{.areness of tf,e .ete*an;i;i;;;
tivation int<, the thoroughl,r. -i.t"t "n "oiionthat a denial of a constirirtiinul .igf,r ao". noi
count a-q such unless ir was inteniional.,, EI.r.,The. Centralit-r. and Limits of ltoti"at,un
Analvsis. 1i San Diego L Rev il55. n6Gll;;tty,6r remphasrs in originalr (footnotes omir-
ted r.

- !a. ln \l'ashingron r. Davis, 426 US Z2g, 4gL Ed 2d 59i,96 S Cr zono, I wrote:

. "Freque-ntl1' the most probative evidence ofrnten.t u'ill be objectir.e er.idence of what actu.ail\. happened rather than evidence describ-ing the subjective stale of mind of th;;;;;;For normalll. the actor is presumed to haveintended the natural consequences of his

1034

deeds. This is particularl_v true in the ca-se ofgovernmental action n.hich is frequentlr. theproduct of compromise. of collectirlu a".l.io"_
making. and of mixed motivation tt i. uni"ui-
istic. on the one hand. to require the r.ictim of
alleged discrimination to uncover the actual
subjective intenr of the decisionm.k;. o;-;;;-
versel;,, to invalidate othern.ise legitimaiea;-
tion simpl.v because an impropei-;;i;; ;i-fected the deliberation of u parircipr"i-'i" ti"dncisional process. A larr. conscripiing clericsshould nor be invalidated U".uu.! ,ri ";;;i;;1ot$ {or it." Id., at 2S8,48 L Ed 2d sgt,96-S
Ct 2040 {concurring opinionr.

-.25. See Miller, If ',The Der.il Himself Knou,sNot the Mind of luan." Hou. p""iiUfi.-C""
Judges Knou the Motir.atio. ,f-f.sl.i;,;;i,
15 San Diego L Rer.lt6i. ft70 (1978r



73LEd2d

Le quantum of
'n the judiciary.
qualitl' of that
1g run constitu-
hat is premised
ppraisal of the
local decision-

bly satisfy the
tial administra-
is embodied in
Clause of the

rnt.

;e illustrate the
of a constitu-

locuses on sub-
the suit u-as

matelv 58 per-
.ion of Burke
approximately
Because black

nied access to
through means
r outlawed b1'
I of 196$-and
en insuficient
registration of
me the historl'
:ajorit-1' of reg-

COuntl' P'gpu
3ctoral s)'stem
result of the

1. to maintain

'ue in the case of
is frequentl.r. the
ollective decision-
rtion. It is unreal.
uire the victim oi
rcover the actual
ionmaker or. con-
ise legitimate ac.
troper motive af-
ranicipant in the
nscripting clerics
cause an atheist
,il2d597,96S

I Himself Knor,r's
ru Possibl_r' Can
of l,egislators?,

0 (1978)

ROGERS v LODGE
458 US 613.73 L Ed 2d 1012. 102 S Cr 32?2

white control of the local govern-
ment. Whether it would have contin-
ued to do so would have depended on
a mix of at least three different
factors-the continuing increase in
voter registration among blacks, the
continuing exodus of black residents
from the county, and the extent to
u'hich racial bloc voting continued to
dominate local politics.

If those elected officials in control
of the political machiner.y had
formed the judgment that these fac-
tors created a likelihood that a bloc
of black voters u'as about to achieve
sufficient strength to elect an en-
tirell ne'6' administration, thel'

[458 US 644]
might have decided to abandon the
at-large system and substitute five
single-member districts with the
boundary lines drau'n to provide a
vvhite majority in three districts and
a black majority in onl-v* two. Llnder
the Court's intent standard, such a
change presumably would violate
the Fourteenth Amendment. It is
ironic that the remedy ordered b1'
the District Court fits that pattern
precisell'.5

If votes continue to be cast on a
racial basis. the judicial remed.r' vir-
tualll' guarantees that u'hites u'ill
continue to control a majoritl- of
seats on the Countl' Board. It is at
least possible that u'hite control of

the political machinery has been fro
zen b-v judicial decree at a time
when increased black voter registra-
tion might have led to a complete
change of administration. Since the
federal judge's intent \^,as unques-
tionably benign rather than invidi-
ous-and, unlike that of state offi-
cials, is presumablv not subject in
any event to the Court's standard-
that result has been accomplished
without violating the Federal Consti-
tution.

In the future. it is not inconceiva-
ble that the u'hite officials u'ho are
Iikely to remain in pou'er under the
District Court's plan u'ill desire to
perpetuate that system and to con-
tinue to control a majority of seats
on the County Board. Under this
Court's standard, if some of those
officials harbor such an intent for an
"invidious" reason. the District
Court's plan u'ill itself become un-
constitutional. It is not clear
whether the invidious intent u'ould
have to be shared by all three u'hite

[458 US 645]

commissioners, b5' merell' a majorit-"-
of tvyo, or b1' simpll' one if he u'ere
influential. It is not clear u'hether
the issue would be affected b1' the
intent of the tu'o black commission-
ers, r*'ho might fear that a return to
an at-large system u'ould undermine
the certaintl of t\4.o black seats.2r Of

26. The follou'ing table shou's a breakdou'n
of the population oi rhe disrricts in the plan
selected bl the Districr Court as to race and
voting age:

Blacl \{ hrrr
votrng Agr \:otrng Agr lorrng As,

Drstrrct Popuialru, Populatror, r.l ,l,opulalroi i
I 2.(ur 1.48: r?l 4, 55{. 1:: 6
2 !.0:|i, 1.40r t6ir.3 6?: i3{,;,
3 2.1 15 9;f 146.:.1 1.13: isiJ r.
4 2.112 911 t446' l.l?5 (55{
5 2.ll; t():i (:16.? 1.41.1 ,tiit F

See todge v Buxton, 639 F2d 1356. 1361. n 4
(CAs 19811

27. In Wright v Rockefeller. 376 US 52, I I
L Ed 2d 512. 84 S Ct 603, a group of minorit-r
voters in Neu York Citl challenged a district,
ing scheme that placed most minorit.r' \'oters
in one of four districts Thel soughr "a more
even distribution of minorirl groups amon6
the four congressional districts." Id,, ar 56. l1
L Ed 2d 512. 84 S Ct 603 Congressman Adam
Clar-ton Poq'ell intervened in the la*'suit and
argued strenuousl.r' "that the kind of drstricts
for lvhich appellants contended would be un.
desirable and, because based on race or place
of origin, rx'ould themselves be unconstitu-
tronal." Ibid.

1035



U.S. SLIPREME

course, if the subjective intent ol
these officials were such as to man-
date a change to a governmental
structure that would permit black
voters to elect an all-black commis-
sion-and if black voters did so-
those black officials could not harbor
an intent to maintain the system to
keep u'hites from returning to
power. In sum. as long as racial
consciousness exists in Burke
Count.y, its governmental structure
is subject to attack. Perhaps those
more familiar than I u'ith political
maneuvering u'ill be able to identifl'
u'ith greater accuracy and reliabilitl'
those subjective intentions that are
legitimate and those that are not.
Because judges ma1' not possess such
expertise, however. I am afraid the

COURT REPORTS 73LEd2d

Court is planting seeds that ma]'
produce an unexpected harvest.

The costs and the doubts associ-
ated u'ith litigating questions of mo-
tive, u,hich are often significant in
routine trials. u'ill be especialll'so in
cases involving the "motives" of leg-
islative bodies.2. Often there will be
no evidence that the governmental

[458 US 646]
system w,as adopted for a discrimina-
tory reason.n The reform movement
in municipal government, see n 19,
supra, or an attempt to comply with
the strictures of Re-ynolds v Sims,
377 US 533, 12 L Ed 2d 506. 84 S Ct
1362, ma)' account for the enact-
ment of

[458 US 647]
countless at-large systems.

28. Professor Karst has strongll criticized
motivational anal-vsis on the ground that it is
inadequate to protect black citizens from un-
constitutional conduct:
"[E]ven though the proof u.ill center on the
effects of u'hat oftcials have done. the ulti-
mate issue u'ill be posed in terms of the
goodness or the evil of the officials' hearts.
Clourts have long regarded such inquiries as
unseeml.r'. a-s the legislative investigation
cases of the 1950's attest. The princrpal con,
cern here is noi that tender judicial sensrtrr.i.
ties ma.r be bruised. bur thar a judge's reluc.
tance to challenge the purjr.r' oi orher oflicrals'
motives mal cause her to fail to re(.ognizr,
valid claims of raciai discrimination er.en
s'hen the motives for gor.ernmenta) action are
highll suspect. Because an individual's behar.-
ior results from the interaction of a mulritude
of motives, and because racial attitudes often
operate at the margin ol consciousness. in anr
given ca-se there almost certainll rrill bt, an
opportunit.\' for a governmenlal official to ar-
gue that his actior'; uas prompred b.r. raciall.r
neutral considerations When that argumeni
is made. should r,r'e not expecl the judgc r<r
give the oflicial the benefir of the moral
doubr? l{'hen the governmental action is the
product of a grurup decision. u'ill not thar
tendenc-v tousrj g.r..osit.\' be heiAhtenedr"
Karst. The Costs of Motive{,entered Inquir.t.
15 San Diego L Rev 1163. 1164-1165 (1976)
(footnote omitted r.

To re.ject an examinatior, into subjectivr, in.
tent is not lo rule that the reasons for legisla-

1036

tive action are irreler.ant. "In m.v opinion,
customar,\' indicia of legislative int.ent provide
an adequate basis for ascertaining the pur-
pose that a lau' is intended to achieve. The
formal proceedings of the legislature and its
committees. the eflect of the mea-sure as evi-
denced b; its text, the historical setting in
which it u'as enacted. and the public acts and
deeds of its sponsors and opponents. provide
appropriate evidence of legislative purpose.''
Cou-.ins l Crtl- Councii of Chicag<-:. 466 F2d
83(i.656 rCAT 1972' (Srevens. J.. dissenting,. If
a challenged lau drsadlantages minoritr. citi-
zens and i1s justifications-as er.idenced bv
cust()marI indrcia 0f legrslatrve inlenl-are
insuftcient to persuade a neutral observer
that the lau ua-s enacted lbr legitimate. non-
discriminatorl' reasons. it is, in mr. opinion.
invalid.

29. As the Court of Appeals noted: "The
general elecrion lau's in man.r' jurisdictions
u ere originalll adopted ar a time \,\'hen
Blacks had not receiveld.l their franchise No
one disputes that such lans u'ere not adopted
to achieve an end, the exclusion of Black
voting. that $'as the status quo C)ther states'
election iar.r's. though adopted shortl,v after
the enactment of the Fifreenth Amendment.
are so old that q'hatever evidence of discrimi-
natorv inrent ma1' have existed. has long
since disappeared. This case falls u'ithin thal
categor\. The focus then becomes the exis-
tence of a discriminatort purpose for the
maintenance of such a s.vsten) " 639 F2d. at
1363. n 7



73LEd2d

eeds that ma]'
,d harvest.

doubts associ-
luestions of mo-
r significant in
especially so in
motives" of leg-
n there r,r'ill be
r governmental
r6l
cr a discrimina-
brm movement
nent, see n 19.
to compll' u'ith
vnolds v Sims.
2d 506, 84 S Ct
for the enact-

t7)
t-large systems.

. "In m.r' opinion.
rtive intent provide
'ertaining the pur'
e<i to achieve. The
legislature and its
he measure as evi'
islorical settinS in
the public acts and
opponents. providr-
:gislative purlrcse "

Chicago. 466 F2d
rs. J.. drssenting, Ii
tages minorrt.r' citi-

-a-. evidenced br
slatise intent-are
r neutral observer
ibr legitimate. non-
is. in ml opinior',.

>peals noted: "The
man.r jurisdrctions
al a time when
their franchist' Ncr
s were nol adopled
rxclusion of Black
quo. Other states'

,pted shortl.v after
ienth .Amendment.

''idence of discrimi-
existed. has long

;e falls *'ithin that
becomes the exis-
' purpose for the
;tenr." 639 F2d. at

ROGERS v LODGE
458 US 613, 73 L Ed 2d 1012, 102 S Ct 3272

In such a case the question becomes
whether the sYstem \\'as maintained
for a discriminatory purpose. Whose
intentions control? Obviously not the
voters, although theY maY be most
responsible for the attitudes and ac-

tions of local government.so Assum-
ing that it is the intentions of the
"sfate actors" that is critical, hou'
u'ill their mental processes be dis-
covered? Must a specific proposal for
change be defeated? What if differ-
ent motives are held b-v different
legislators or, indeed, bY a single
official? Is a selfish desire to sta-v- in
office sufficient to justifl' a failure to
change a governmental sYstem?

The Court avoids these Problems
by failing to answer the very ques-

ti,on that its standard asks. Presum-
ably, according to the Court's analy-
sis, the Burke Countl' governmental
structure is utrconstitutional because
it u'as maintained at some point for
an invidious purpose. Yet the Court
scarcell' identifies the manner in
u'hich changes to a county govern-
mental structure are made. There is
no reference to any unsuccessful at-
tempt to replace the at-large s)'stem
r+'ith single-member districts. It is
incongruous that subjective intent is
identified as the constitutional stan-
dard and yet the Persons who alleg-
edll' harbored an improper inten-t
..e ne.'et identified or mentioned'
Undoubtedlv, the evidence relied on

b;- the Court proves that racial prej-
uiice has played an imPortant role
in the history of Burke Countl' and
has motivated manl' u'rongful acts
by various communit.t' leaders. But

unless that evidence is suficient to
prove that er?r:r' governmental ac-

iion was motivated by a racial ani-
mus-and may be remedied b-"- a
federal court-the Court has failed
under its ovvn test to demonstrate
that the governmental structure of
Burke Countl'' '*'as maintained for a

discriminator)' purPose.

Certainly governmental action
should not be influenced b-v irrele-
vant considerations. I am not con-
vinced, hou'ever.

[458 us 648]

that the Constitu-
tion aflords a right-and this is the
onlr' right the Court finds applicable
in ttrii case-to have every official
decision made without the influence
of considerations that are in some
u,ay "discriminatory." Is the failure
of a state legislature to ratify the
Equal Rights Amendment invalid if
a federal judge concludes that a ma-
joritl' of the legislators harbored
stereotypical vieu's of the proper role
of u'omen in societY? Is the estab-
Iishment of a memorial for Jews
slaughtered in World War Il uncon-
stitutional if civic leaders believe
that their cause is more meritorious
than that of victimized Palestinian
refugees? Is the failure to adoPt a
state holidal for Martin Luther
King. Jr.. invalid if it is proved that
state legislators beUeved that he

does not deserve to be commemcF
rated? Is the refusal to provide Med-
icaid funding for abortions unconsti-
tutional if offrcials intend to discrim-
inate against \r'omen u'ho would
abort a fetus?3'

30. Apart from the lach of "state action"'
the ver! purpose of the secret ballot is to
protecl the individual's right- to cast a vote
r,r'ithout explaining to an-vone for u'hom. or for
what reason. the vote is cast.

31. A stereot-vpical reaction to particular
characteristics of a disfavored group cannot
justifl' discriminator.\' legislation. ft1: ":-B-.-Matheu's v Lucas, 427 US 495. 520-521. 49 L

Ed 2d 65f. 96 S Cr 2?55 tStevens. J.. dissent-

ingr lt is nevertheless important to remember
that the Frrst Amendment protects an indi-
vidual's right to entertain unsound and unpo-

pular beliefs-including stereotl'pical beliefs
about classe. of persons-and to expound
those beliefs publicll. There ts a vast differ'
ence betu'et'n rejecting an irrational belief a-"

a justification for discriminatorl legislation

rm7



U.S. SUPREME COURT REPORTS 73LEd2d

A rule that would invalidate all
governmental action motivated by
racial, ethnic, or political considera-
tions is too broad. Moreover, in m1,
opinion the Court is incorrect in
assuming that the intent of elected
officials is invidious when they are
motivated by a desire to retain con-
trol of the local political machinery.
For such an intent is surely charac-
teristic

[458 US 649]

of politicians throughout the
country. In implementing that sort
of purpose, dominant majorities
have used a r,r'ide variety of tech-
niques to limit the political strength
of aggressive minorities. In this case
the minority is defined by racial
characteristics, but minority groups
seeking an effective political voice
can, of course, be identified in manv
other ways. The Hasidic Jeu's in
Kings County, N. Y.,t, the Puerto
Ricans in Chicago,s the Spanish-
speaking citizens in Dallas.s the Bo-
hemians in Cedar Rapids,s the Fed-
eralists in Massachusetts,s the Dem-
ocrats in Indiana,r and the Republi-
cans in California$ have all been
disadvantaged bv deliberate political

maneuvers by the dominant major_
ity. As I have stated. a device that
serves no purpose other than to ex-
clude minoritl' groups from effective
political participation is unlau,ful
under objective standards. But if a
political majorit_r.'s intent to main-
tain control of a legitimate local
government is sufficient to invali-
date any electoral device that makes
it more difficult for a minority group
to elect candidates-regardless of
the nature of the interest that gives
the minoritl' group cohesion-the
Court is not just entering a "political
thicket"; it is entering a vast u'on-
derland of judicial revie'x' of potitical
activity.

The obvious response to this sug-
gestion is that this case involves a
racial group and that governmental
decisions that disadvantage such a
group must be subject to special
scrutiny under the Fourteenth
Amendment. I therefore must

[458 US 650]

sider whether the Court's fr"fjlJ,
can legitimatel.y be confined to polit-
ical groups that are identified by
racial characteristics.

and concluding thal neutral legislation is in-
valid because it u.as motivaled b1. an irra-
tional belief. Fresh air and open discussion
are better cures for r.icious prejudice than are
secrec.v and dissembling. No matter how
firm11' I might disagree with a legislator's
motivation in casting a biased vote. I not onll'
must respecr his right to form his ou.n opin-
ions. cf. }'oung r. American Mini Theatres.
Inc . 42? US 5(). 63. 49 L A 2d 310. 96 S Ct
244C) {opinion ol Srevens. J.r, but also *.ould
prefer a candid explanation of those opinions
to a litigation-oriented silence.

32. Se€ United Je\r'ish Organization v
Carel', 430 US 144, 5l L Ed ?.d 229.97 S Cr
996

33. See Cousins r Citv C,ouncil of Chicago.

466 F2d 83(l rCAT 1972r. cer.t denied. 409 L)S
893. 34 LEA 2d 151, 93 S Ct 65

34. See White v Regester. 4f2 US 7SS. g7 L
Ed 2d 314. 93 S Ct 2332.

35. Se€ Rice. supra. n 19, at 78.

36. The term "gerrJ-mander" arose from an
election district-that took the shape of a
salamander-formed in Massachusetts br.
Governor Elbridge Gerr.r.'s Jeffersonian or
Democratic-Republican Partr.. The phrase *'as
coined b1' Gerr-v's opponents. the FederalisLs

37. See 39 Congressional Quarterlr' ?56
(1981 t

38. See id.. at 941.

I038



,RTS 73LEd2d

l9-7-2r. cen denred. 409 US
.93 S Cr 85

:egester. 412 US 7Si. 3; L33:

r. n 19. ar 78.

r-vmander" arose from anar took the shape of ain Massachuserts bv
Gerr.r"s Jeffersorrian oi
ln Part.r-. The phra-se n.a:
)onents. the Federalists

'essional euarterl.r. ?56

ROGERS v LODGE
458 US 613, 73 L Ed 2d 1012. 102 S Ct 3272b.v the dominant major.

ve stated, a device tirat
lrpose other than to ex-
t-\' groups from eflective'trcipation is unlar+,ful
lve standards. But if aorit.\''s intent to main_
- 
of' a legitimate IocaIrs suffcient to invali_

toral device that makes
,r,r. lol a minorit.\.group
r€lrdates-regardless 

of.
the interest that gives
group cohesion_the

rst entering a ..political

. entering a vast !\,on-
lclal revie\4. of political

. 
response to this sug_t this case involves a

nd. that governmental
drsadvantage such a)e subject to special

e_r the Fourteenth
therefore must
r8 us 650l

con_the Court's holding
i' be confined to polit_at are identified br.'istics.

IV

Governmental action that discrim-
inates between individuals on the
basis of their race is, at the ver.1,
least, presumptively irrational.3e For
an individual's race is virtualll, al-
u'ays irrelevant to his right to enjoy
the benefits and to share the respon-
sibilities of citizenship in a demo-
cratic society'. Persons of different
races, like persons of different reli-
gious faiths and different political
beliefs, are equal in the eyes of the
Iau'.

Groups of ever1, character ma].
associate together to achieve legiti-
mate common goals. If thel' r,olunta-
rily identify' themselves by a com-
mon interest in a specific issue, by a
common ethnic heritage, by a com-
mon religious beliel or b;' their
race, that characteristic assumes sig-
nificance as the bond that gives the
group cohesion and political
strenglh. When referring to different
kinds of political groups, this Court
has consistentlf indicated that, to
borrolt Justice Brennan's phrasing.
the Equal Protection Clause does not
make some groups of citizens more
equal than others. See Zobel v Wil-
liams. 457 US 55. 71. 72 L Ed 2d
672. 102 S Ct 2309 tBrennan. J.,
concurring). Thus. the Court has
considered challenges to discrimina-
tion based on "differences of color,
race, nativitl', religious opinions [or]political affiliations," American
Sugar Refining Co. v Louisiana, 129
us 89, 92, 45 L Ed 102, 21 S Ct 43:
to redistricting plans that serve "to
further racial or economic discrimi-
nation," \4/hitcomb v Chavis, 403 US
L24. 149,29 L Ed 2d 363, 91 S Ct

1858; to biases "tending to favor
particular political interests or geo-
graphic areas." Abate v Mundt, 408
us 182. 187, 29 L Ed 2d 399, 91 S Ct
1904. Indeed, in its

[458 US 65r]
opinion today the

Court recognizes that the practical
impact of the electoral system at
issue applies equally to any "distinct
minority, n'hether it be a racial.
ethnic, economic, or political group."
Ante, at 616, 73 L Ed 2d , at 1012.

A constitutional standard that
gave special protection to political
group-c identified b1' racial character-
istics would be inconsistent u'ith the
basic tenet of the Equal Protection
Clause. Those groups are no more or
less able to pursue their interests in
the political arena than are groups
defined by other characteristics. Nor
can it be said that racial alliances
are so unrelated to political action
that any electoral decision that is
influenced by racial consciousness-
as opposed to other forms of political
consciousness-is inherentll. irra-
tional. For it is the verl' political
power of a racial or ethnic group
that creates a danger that an en-
trenched majority u'ill take action
contrar-r' to the group's political in-
terests. "The mere fact that a num-
ber of citizens share a common eth-
nic, racial. or religious background
does not create the need for protec-
tion against gerrymandering. It is
onlv u,hen their common interests
are strong enough to be manifest.ed
in political action that the need
arises. Thus the characteristic of the
group which creates the need for
protection is its political character."
Cousins v Cit-v Council of Chicago.

39. Since I do not understand the Court's
opinion to rel.r' on an affirmative.action ratio.
nale, I put that entire subjecr to one side If

that u'ere the rationale for the Court's hold-
ing. hou'ever. there r,r.ould be no need to in-
quire into subjective int€nt.

1039



U.S. SUPREME COURT REPORTS 73 LEd 2d

466 F2d 830, 852 ICAT 1972r lste_
vens, J., dissenting). It w,ould be un-
realistic to distinguish racial groups
from other political groups on the
ground that race is an irrelevant
factor in the political process.

Racial consciousness and racial as-
sociation are not desirable features
of our political system. We all look
forward to the da1, when race is an
irrelevant factor in the political pro-
cess. In my opinion, however, that
goal will best be achieved by elimi-
nating the vestiges of discrimination
that motivate disadvantaged racial
and ethnic groups to vote as identifi-
able units. Whenever identifiable
groups irj our societl. are disadvan-
taged, they u,ill share common polit-
ical interests and tend to vote as a
"bloc." In this respect, racial groups
are

[458 LlS 652]
like other political groups. A

permanent constitutional rule that
treated them differently. would. in
m-y opinion, itself tend to perpetuate
race as a feature distinct from all
others; a trait that makes persons
different in the e1'es of the law. Such
a rule ir',ould dela1,-rather than ad-
vance-the goai advocated bv Justice
Douglas:

"When racial or religious lines
are drau'n b1' the State. the mul-
tiracial, multireligious communi-
ties that our Consritution seeks to
u,eld together as one become sepa-
ratist; antagonisms that relate to
race or to religion rather than to
political issue-" are generated; com-
munities seek not the best repre-
sentative but the best racial or
religious partisan. Since that sys-
tem i-c at vi'ar q'ith the democratic
ideal. it should find no footing
here." Wright v Rockefeller. 876

r040

us 52, 67, l1 L Ed 2d 512, 84 S Cr
603 (dissenting opinion ).

My conviction that all minoritv
groups are equally entitled to consti-
tutional protection against the mis-
use of the majority's political pox,er
does not mean that I would abandon
judicial revieu' of such action. As I
have u'ritten before, a gerrymander
as grotesque as the boundaries con-
demned in Gomillion v Lightfoot,
364 US 339, 5 L Ed 2d 110, 81 S Ct
125, is intolerable whether it fences
out black voters, Republican voters,
or Irish-Catholic voters. Mobile v
Bolden, 446 US, ar 86, 64 L Ed 2d
47. 100 S Ct 1490 topinion concur-
ring in judgment). But if the stan-
dard the Court applies today extends
to all types of minoritl, groups, it is
either so broad that virtually every
political device is vulnerable or it is
so undefined that federal judges can
pick and choose almost at u'ill
among those that u,ill be upheld and
those that u'ill be condemned.

There are valid reasons for con-
cluding that certain minority groups

-such as the black voters in Burke
Countl', Georgia-should be given
special protection from political op-
pression b-r' the dominant majoritl,.
But those are reasons that justifl'
the application of a legislative policl'
choice rather than a constitutional
principle that cannot be confined to
special

[458 US 653]
circumstances or to a t.empo-

rarl' period in our histor.v. An1. sug-
gestion that political groups in
u'hich black leadership predominates
are in need of a permanent constitu-
tional shield against the tactics of
their political opponents underesti-
mat.es the resourcefulness. the wis-
dom, and the demonstrated capacit-v

tI
I
.t

J,!

{
t

l
,,
1

:
t
II
I

t

D
D



73LEd2d

I 2d 512,84 S Ct
nion ).

at all minority
ntitled to consti-
rgainst the mis-
; political power
i would abandon
rch action. As I
a gerrymander

boundaries con-
)n v Lightfoot,
2d 110, 81 S Ct
hether it fences
publican voters,
rters. Mobile v
86, 64 L Ed 2d
opinion concur-
]ut if the stan-
rs today extends
'ity groups, it is
virtualll everl'

lnerable or it is
leral judges can
rlmost at u'ill
I be upheld and
rdemned.

easons for con-
minoritv groups
voters in Burke
rould be given
rm political op-
,inant majority.
rns that justif.r,
egislative policl'
r constitutional

be confined to

r3l
s or to a t,empo-
stor.'*. An1' sug-
:al groups in
p predominates
ranent constitu-
the tactics of

ents underesti-
rlness, the u'is-
;trated capacit-y

ROGERS v
458 us 613, 73 L Ed 2d

LODGE
1012, 102 S Ct 3272

I respectfulll' dissent.of such
Court's

leaders. I cannot accePt the
constitutional holding.ao

40. The Court does not address the statu-
t^ru ouestion r,r'hether the at'large system

"i.iut"1 $ 2 of the \/oting Rights Act of 1965

Neither ih" Di.t.ict Court nor the Courl ol

Appeals considered this issue Since appellees

ha"" been granted full relief by the Court' I
express no opinion on their statutory claims'

D
o

l04l