McCord v. City of Fort Lauderdale, Florida Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
NO. 85-5288

ALLIE K. MC CORD, JOSEPH POWELL, JR., 
ROSE MARIE SAULSBY, ILMA M. JAMES, 
MARGARET HARDEN, ALZEN F. FLOYD, SR., 
THE SOUTHERN CHRISTIAN LEADERSHIP 
CONFERENCE (SCLC) OF BROWARD COUNTY, 
FLORIDA, on behalf of themselves and 
all others similarly situated,

Appellants-Plaintiffs,
vs .

CITY OF FORT LAUDERDALE, FLORIDA;
ROBERT A. DRESSLER, Mayor; ROBERT 0. 
COX, Commissioner; JAMES NAUGLE, 
Commissioner; RICHARD A. MILLS, JR., 
Commissioner; JOHN E. RODSTROM, JR., 
Commissioner, and their successors and 
agents in their official capacities,

Appellees-Defendants. 
______________________________________/

APPEAL FROM THE UNITED STATES DISTRICT FOR THE SOUTHERN DISTRICT OF FLORIDA

BRIEF FOR PLAINTIFFS-APPELLANTS

DAVID M. LIPMAN 
ROBERT E. WEISBERG 
LIPMAN & WEISBERG 
5901 S.W. 74 Street 
Suite 304
Miami, Florida 33143-5186 
(305) 662-2600

JULIUS L. CHAMBERS 
LANI GUINIER 
ERIC SCHNAPPER 
CLYDE E. MURPHY
NAACP LEGAL DEFENSE AND 

EDUCATION FUND, INC.
99 Hudson Street 
New York, NY 10013 
(212) 219-1900

ATTORNEYS FOR PLAINTIFFS-APPELLANTS

Of Counsel:
BENJAMIN F. LAMPKIN

General Counsel for SCLC 
of Broward County 

P.O. Box 10876 
Ft. Lauderdale, FL 33310 
(305) 733-3166



IN THE UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
NO. 85-5288

ALLIE K. MC CORD, JOSEPH POWELL, JR., 
ROSE MARIE SAULSBY, ILMA M. JAMES, 
MARGARET HARDEN, ALZEN F. FLOYD, SR., 
THE SOUTHERN CHRISTIAN LEADERSHIP 
CONFERENCE (SCLC) OF BROWARD COUNTY, 
FLORIDA, on behalf of themselves and 
all others similarly situated,

Appellants-Plaintiffs,
v s .

CITY OF FORT LAUDERDALE, FLORIDA; 
ROBERT A. DRESSLER, Mayor; ROBERT 0. 
COX, Commissioner; JAMES NAUGLE, 
Commissioner; RICHARD A. MILLS, JR., 
Commissioner; JOHN E. RODSTROM, JR., 
Commissioner, and their successors and 
agents in their official capacities,

Appellees-Defendants. 
_________________________________ ____/

APPEAL FROM THE UNITED STATES DISTRICT FOR THE SOUTHERN DISTRICT OF FLORIDA

BRIEF FOR PLAINTIFFS-APPELLANTS

Of Counsel:
BENJAMIN F. LAMPKIN

General Counsel for SCLC 
of Broward County 

P.O. Box 10876 
Ft. Lauderdale, FL 33310 
(305) 733-3166

DAVID M. LIPMAN 
ROBERT E. WEISBERG 
LIPMAN & WEISRERG 
5901 S.W. 74 Street 
Suite 304
Miami, Florida 33143-5186 
(305) 662-2600

JULIUS L. CHAMBERS LANI GUINIER 
ERIC SCHNAPPER 
CLYDE E. MURPHY
NAACP LEGAL DEFENSE AND 

EDUCATION FUND, INC.
99 Hudson Street 
New York, NY 10013 
(212) 219-1900

ATTORNEYS FOR PLAINTIFFS-APPELLANTS



CERTIFICATE OF INTERESTED PERSONS
[LOCAL RULE 22(f)(2)]

The undersigned counsel of record for Plaintiffs-Appellees 
certifies that the below listed persons have an interest in the 
outcome of this case. These representatives are made in order that 
the Judges in this Court may evaluate possible disqualifications or 
recusal pursuant to Local Rule 22(f)(2).

PLAINTIFFS-APPELLEES
ALLIE K. MC CORD 
JOSEPH POWELL, JR.
ROSE MARIE SAULSBY 
ILMA M. JAMES 
MARGARET HARDEN 
ALZEN F. FLOYD, SR.
THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE (SCLC) OF BROWARD COUNTY, FLORIDA
ALL OTHER BLACK CITIZENS OF FORT LAUDERDALE, FLORIDA WHO ARE MEMBERS OF PLAINTIFFS' CLASS

DEFENDANTS-APPELLANTS
CITY OF FORT LAUDERDALE, FLORIDA
ROBERT A. DRESSLER
ROBERT 0. COX
JAMES NAUGLE
RICHARD A. MILLS, JR.
JOHN E. RODSTROM, JR.

-i-



This appeal is not entitled to preference.

STATEMENT REGARDING PREFERENCE
[LOCAL RULE 22(f)(2)]

STATEMENT REGARDING ORAL ARGUMENTS 
[LOCAL RULE 22(f)(2)]

Pursuant to Local Rule 22(f)(4), Plaintiffs-Appellants 
respectfully request that this appeal be orally argued.

This case presents important questions regarding the proper 
interpretation of Section 2 of the Voting Rights Act of 1965, as 
amended, 42 U.S.C. §1973, and whether the Congressional intent of 
the amendment of that Act will be properly applied by the Courts of 
this Circuit. We submit that the District Court below in finding 
for the Defendant City of Fort Lauderdale, Florida, drew legal 
conclusions, which are inconsistent with both Congress' intent when 
amending the Act in 1982 to provide a broad charter against all 
systems that diminish minority voting strength, and the express 
holdings of this Court in applying the requirements of the Act.

Plaintiffs-Appellants submit that oral argument would clarify 
the presentation of the legal arguments raised in this appeal.

-ii-



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS -i-
STATEMENT REGARDING PREFERENCE -ii-
STATEMENT REGARDING ORAL ARGUMENTS -ii~
TABLE OF CONTENTS -iii-

TABLE OF AUTHORITIES -vii-
ABBREVIATIONS -xii-
STATEMENT OF THE ISSUES 1
STATEMENT OF THE CASE 1
COURSE OF PROCEEDINGS AND 1
DISPOSITION IN THE COURT BELOW

A. PROCEDURAL BACKGROUND 1
B. THE DISTRICT COURT'S OPINION 2

STATEMENT OF THE FACTS 3
A. GENERAL BACKGROUND 3
B. THE BLACK CANDIDATES: 1957-1982 6

SUMMARY OF ARGUMENT 13
STATEMENT OF JURISDICTION 15
ARGUMENT i6

I. THE CONTROLLING STANDARD OF REVIEW 16
1. THE "CLEARLY ERRONEOUS" STANDARD 16

OF REVIEW DOES NOT APPLY TO FINDINGS
DERIVED FROM AN IMPROPER LEGAL STANDARD

2. APPLICATION OF THIS STANDARD OF REVIEW 16
II. FT. LAUDERDALE'S AT-LARGE ELECTION SYSTEM 19

VIOLATES SECTION 2 OF THE VOTING RIGHTS ACT 
BECAUSE IT RESULTS IN DISCRIMINATION AND
DENIES BLACK CITIZENS AN EQUAL OPPORTUNITY 
TO ELECT CANDIDATES OF THEIR CHOICE

Page No.

-iii-



Page No.
1. HISTORY OF OFFICIAL DISCRIMINATION 20 

AND ITS LINGERING EFFECTS
A. THE HISTORY 20
B. PRESENT EFFECTS OF THIS PAST HISTORY 22

(1) Residential Segregation 22
(2) Imbalance of Blacks on 23

City Boards and Committees
(3) Employment 24
(4) Public Housing 24
(5) Education 24

2. RACIAL POLARIZED VOTING 27
A. PLAINTIFFS' PROOF OF 28

RACIAL POLARIZATION
(1) THIS COURT'S STATISTICAL METHODS 28

USED FOR GAUGING RACIAL POLARIZATION
(a) BI-VARIATE REGRESSION ANALYSIS 28
(b) RACIAL POLARIZATION INDEX 30
(c) SUPPORT FOR WINNING CANDIDATES 31
(d) BLACKS' IMPACT ON THE 32

OUTCOME OF ELECTIONS
(e) AVERAGE NUMBER OF VOTES 32

CAST BY VOTERS
(e) VOTING ALONG RACIAL LINES 33

(2) NON-STATISTICAL METHODS OF 35
PROVING RACIAL BLOC VOTING

B. THE TRIAL COURT ERRONEOUSLY DISREGARDED 36
PLAINTIFFS' POLARIZATION EVIDENCE
(1) THE BI-VARIATE ANALYSIS WAS 36

DISREGARDED FOR IMPROPER REASONS
(2) THE POLARIZATION INDEX WAS 37

DISREGARDED FOR IMPROPER REASONS

-iv-



(3) PLAINTIFFS * OTHER STATISTICAL 39
POLARIZATION ANALYSES WERE 
ERRONEOUSLY REJECTED

C. MULTI-VARIATE REGRESSION ANALYSIS 40
(1) THE MULTIVARIATE REGRESSION WAS 42

ERRONEOUSLY UTILIZED IN THIS 
CASE SINCE IT HAS BEEN SPECIFICALLY 
REJECTED BY THE SUPREME COURT AND 
IS INCONSISTENT WITH CONGRESS'
MANDATE IN AMENDING THE VOTING RIGHTS ACT

(a) THE SUPREME COURT HAS REJECTED 42
UTILIZATION OF THE MULTIPLE 
REGRESSION ANALYSIS

(b) INQUIRY AS TO THE RACIAL MOTIVE 43
OF THE VOTER IS INCONSISTENT WITH 
CONGRESS' MANDATE IN AMENDING
THE VOTING RIGHTS ACT

(2 ) THE DISTRICT COURT'S ADOPTION OF 45
DEFENDANT'S MULTIVARIATE ANALYSIS 
IGNORES THE METHODOLOGICAL PROBLEMS
RAISED BY THIS APPROACH

(a) THE
ARE

PROBLEM OF INCLUDED -
WHICH FACTORS 
OR - EXCLUDED

46

(b) THE PROBLEM OF QUANTIFICATION 47
(c) THE PROBLEM OF MULTICOLLINEARITY 48

((D) INCUMBENCY 50
((2)) CAMPAIGN CONTRIBUTIONS 51

(3) THE RESULTS OF THE MULTI-VARTATE 53
ANALYSIS DO NOT REFLECT THE "ACTUAL 
EVENTS AND REALITIES" OF FT. LAUDERDALE 
POLITICS

3. STRUCTURE OF THE ELECTION SYSTEM 55
A. LACK OF RESIDENCY REQUIREMENT 56
B. UNUSUALLY LARGE POPULATION SIZE 57

4. CANDIDATE SLATING PROCESS 58



Page Mo. .

5. SOCIO-ECONOMIC STATUS 60
6. THE EXTENT TO WHICH MINORITY 63

GROUPS HAVE BEEN ELECTED TO
PUBLIC OFFICE IN THE CITY

7. UNRESPONSIVENESS 66
8. TENUOUSNESS 68

RELIEF AND CONCLUSION 70
CERTIFICATE OF SERVICE
APPENDIX

APPENDIX 1: OUTLINE OF THE HISTORY OF la
RACIAL DISCRIMINATION IN 
FORT LAUDERDALE

APPENDIX 2: BI-VARIATE REGRESSION ANALYSIS lb
APPENDIX 3: RANKING OF BLACK CANDIDATES BY 1c

PRECINCT IN CITY COMMISSION 
ELECTIONS

APPENDIX 4: RACIAL POLARIZATION INDEX Id

-vi-



TABLE OF AUTHORITIES
Case Law: Pages
Armstrong v. Collier536 F.2d 72 (5th Cir. 1976)
Bolden v. City of Mobile 

423 F.Supp. 384 (S.D. Ala.1976) aff'd 571 F.2d 238 (5th Cir. 1978) 
rev'd onother grounds 446 U.S. 55 (1980)

Bonner v. City of Prichard661 F.2d 1206 (11th Cir. 1981)
(en banc)

Boylan v. The New York Times 
(unreported)

City of Rome v. United States 
472 F.Supp. 221 (D.D.C. 1979)
(Three Judge Panel)

Civil Voters Organ, v. City of Terrell 
565 F.Supp. 338 (N.D. Tex. 1983)

City of Mobile v. Bolden 
446 U.S. 55 (1980)

David v. Garrison
553 F.2d 923 (5th Cir. 1977)

Dowdell v. City oF Apopka698 F.2d 1181 (11th Cir. 1983)
Gingles v. Edminsten

590 F.Supp. 345 (E.D. N.C. 1984)
(Three Judge Panel)

Graves v. Barnes343 F. Supp. 704 (W.D. Tex. 1972)
Hicks v. Miranda

422 U.S. 332 (1975)
Howell v. Jones

516 F.2d 53 (5th Cir. 1985)
In Re Apportionment Law, etc.
414 So.2d 1040 (Fla. 1982)

James v. Stockham Valve Co.
559 F.2d 310 (5th Cir. 1977)

70
19, 27

29

28

30, 35

22, 62 

19, 27 

57 

22

30, 32, 33, 43 
65

65

43

43

69

49

-vii -



TABLE OF AUTHORITIES
[cont * d ]

Case Law: Pages
Johnson v. Uncle Ben's, Inc. 16

628 F.2d 429 (5th Cir. 1980), vacated
on other grounds 451 U.S. 902 (1981)

Jones v. City of Lubbock 21, 27, 28
727 F.2d 364 (5th Cir. 1984) 37, 42, 45
denial of re-hearing and rehearing en banc 57, 62, 67
730 F.2d 233 (5th Cir. 1984)

*Jordan v. Winter 42
Civil No. GC 82-80-WK-0 (N.D. Miss.
April 16, 1984) aff'd sub, nom.
Mississippi Republican Executive Committee 
v. Brooks
__ U.S.____, 83 L.Ed.2d 343 (1984)

Kelly v. Southern Pacific Co. 16
419 U.S. 318 (1974)

Kendrick v. Walden 58
527 F.2d 44 (7th Cir. 1975)

Kirksey v. Board oF Supervisors of Hinds 61
County
554 F.2d 139 (5th Cir. 1977) (en banc) 
cert, denied 434 U.S. 968 (1977)

Lee County Branch, NAACP v. City of Opelika 30
748 F.2d 1473 (11th Cir. 1984)

Lincoln v. Board of Regents of Univ. System 16
697 F.2d 928 (11th Cir. 1983)

Major v. Treen 30, 65
574 F.Supp. 325 (E.D. La. 1983)

Mandel v. Bradley 43
432 U.S. 173 (1977)

Matter of Legal, Braswell Government Securities 70 
648 F.2d 321 (5th Cir. 1981) (Unit B)

^McMillan v. Escambia County, Fla. 17, 21, 23, 26,
638 F.2d 1239 (5th Cir. 1981) 27, 29, 35, 58
(McMillan I); aff'd 688 F.2d 960 (5th Cir. 1982) 62-65, 67, 69
(McMillan II); vacated and remanded
__U.S__, 80 L.Ed 2d 36 (1984) aff'd
748 F.2d 1037 (5th Cir. 1984) (McMillan III)

-viii-



TABLE OF AUTHORITIES
[cont'd]

NAACP by Campbell v. Gadsden County 
691 F.2d 978 (11th Cir. 1982)

Nevitt v. Sides
571 F.2d 209 (5th Cir. 1978) 
cert, denied 446 U.S. 951 (1980)

Noritake Co., Inc, v. M/V Hellenic Champion 
627 F.2d 724 (5th Cir. 1980).

Pavlides v. Galveston Yacht Basin, Inc.
727 F.2d 330 (5th Cir. 1984)

Perkins v. City of West Helena 
675 F.2d 201 (8th Cir. 1981) 
aff *d 459 U.S. 801 (1982)

Pullman-Standard v. Swint 
450 U.S. 273 (1982)

Rodgers v. Lodge 
458 U.S. 613 (1982)

Rybicki v. State Board of Elections of Illinois 
574 F. Supp. 1147 (N.D. 111. 1983)

Segar v. Smith
738 F.2d 1249 (D.C. Cir. 1984)

Steward v. Waller
404 F. supp. 206 (N.D. Miss. 1975)

Teamsters v. U.S.
431 U.S. 734 (1977)

U.S. v. United Brothers of Carpenters and 
Joiners of America. Local 169 
457 F.2d 210 (7th Cir. 1972)

United Jewish Organization v. Carey 430 U.S. 144 (1977)
United States v. City of Fort Lauderdale 
No. 80-6289-CIV-ALH (S.D. 1980)

^United States v. Dallas County Commissioners
739 F.2d 1529 (11th Cir. 1984)

Case Law:
27, 39, 30, 35 
65, 66, 68
27

16

16

35, 59, 67 

16

21, 23, 24, 35 
40, 56
65

50

65

28 

58

35

24, 66

17-19, 21, 26, 
27, 30, 37, 45, 
57, 62-64

Pages

-ix-



TABLE OF AUTHORITIES
[cont'd]

Case Law: Pages

United States v. General Motors 
384 U.S. 127

^United States v. Marengo County Commission 
732 F.2d 1546 (11th Cir. 1984) 
appeal dismissed and cert, denied 
__U.S.__, 83 L.Ed 2d 311 (1984)

Valentino v. United States Postal Service 
674 F.2d 56 (1982) (D.C. Cir. 1982)

Voter Information Project v. City of
Baton Rouge, 612 F.2d 208 (5th Cir. 1980)

Vuyanich v. Republic Nat. Bank of Dallas 
505 F.Supp. 224 (N.D. Tex. 1980) 
vacated on other grounds 723 F.2d 1195 
(5th Cir. 1984)

Wallace v. House515 F. 2d 619 (5th Cir. 1975)
White v. Regester 412 U.S. 755 (1972)
Wilkins v. Univ. of Houston

654 F.2d 388 (5th Cir. 1981), reh'g denied 
662 F.2d 1156 (5th Cir. 1981)

Wise v. Lipscomb
399 F.Supp. 782 (N.D. Tex. 1975) rev*d on other grounds, 551 F.2d 1043 
(5th Cir. 1977) rev'd on other grounds,
437 U.S. 535 (1978)

Zimmer v. McKeithen
485 F.2d 1297 (5th Cir. 1973)
(en banc), aff'd on other grounds
sub, nom. East Carroll Parish School Board v.
Marshall, 424 U.S. 636 (1976).

16

16-■19, 21, 25
26,, 36 ,, 57--60
62--66, 68, 70

50

35

50

65

18, 59-61, 65

28

22

65

-x-



TABLE OF AUTHORITIES
[cont'd]

Pages
U.S. Constitutional Provisions, Statutes and Rules
28 U.S.C. § 1291 15
42 U.S.C. §1973 (Voting Rights Act) 1, 2, 14, 19
Senate Report No. 97-417
97th Cong. 2d Sess., (1982)
U.S. Code Cong, and Admin. News 1982, Pgs. 177-410

17, 44, 61, 62,63

Rule 23(b)(2) F.R.C.P. 1
Rule 52(a) F.R.C.P. 16
F.R.E. 201(b)(2) 58

Florida Constitutional Provisions and Codes: 
Fla. Statutes §§10.101-10.103 69
Fla. Statutes §124.011 69
Fla. Statutes §230.105 69
Florida Constitution, Article 8, §5 69

Additional Authority:
Finkelstein, The Judicial Reception of 
Multiple Regression Studies in Race and Sex Discrimination Cases 
80 Columbia L. Rev. 737, 738-742 (1980)

50

C. Wright, Law of Federal Courts 
495 (2d Ed. 1970)

D. Baldus & J. Cole, Statistical Proof of 
Discrimination ('1980') and (1983 Supp.'*

43

4848



ABBREVIATIONS
We utilize the following references in our Brief:
Vol.__, Pg._

Tr.Vol.__, Pg.

RE.Pg.__
RE,Op., Pg.

P.Ex.
D.Ex.

Referring to one of the Volumes (Vol. 
1-6), Pages 1-1482, consecutively 
consisting of all pleadings, 
memoranda, other submissions and Court 
Orders.
Referring to one of the seven (7) 
volumes (Vol. 7-13) of trial testimony.
Record Excerpts
Opinion of March 12, 1985 (on the 
merits of this case)
Plaintiffs' Exhibit
Defendant's Exhibit

-xii-



STATEMENT OF THE ISSUES
I.

Whether the District Court failed to apply the proper legal 
standards mandated by Section 2 of the Voting Rights Act of 1965, as 
amended, in rejecting Plaintiffs* claims that '’based on the totality 
of circumstances" the Ft. Lauderdale at-large election system 
results in an abridgement of black citizens' opportunity "to 
participate in the political process and to elect representatives of 
their choice." 42 U.S.C. §1973.

II.
Assuming error has occurred by the District Court, is reversal 

rather than remand appropriate since the essential facts of this 
case are not in dispute and, when the record evidence is considered 
in its entirety, there exist no genuine issues as to any material 
fact.

STATEMENT OF THE CASE
COURSE OF PROCEEDINGS AND DISPOSITION IN COURT BELOW
A. PROCEDURAL BACKGROUND

Plaintiffs, six black citizens of Fort Lauderdale and the
Southern Christian Leadership Conference (SCLC) of Broward County,

1 /Florida, filed this lawsuit as a class action on March 10, 1983,

1/ The case was certified as a class action at the commencement of 
trial on September 26, 1984, pursuant to Rule 23(b)(2) F.R.C.P. 
Plaintiffs' class consists of "all black citizens who reside in the City of Fort Lauderdale." (Vol. 4, Pg. 852).



alleging that Fort Lauderdale's at-large election system for 
electing City Commission members unlawfully dilutes black voting 
strength and has a discriminatory result in violation of Section 2 
of the Voting Rights Act, 42 U.S.C. §1973 (West Supp. 1983).

Defendants are the City of Fort Lauderdale and Mayor,
Vice-Mayor, Mayor Pro-Tem, and two additional Commissioners, all
sued in their official capacity (1(5, Complaint) (RE, Pg. 6).

2/Following extensive discovery by both parties , which led to 
the stipulation of the parties to virtually all of the essential 
facts of the case, see, infra, Pg. 18, n. 13, this case was tried 
without jury commencing on September 26, 1984, and continued 
intermittently over several weeks.

B. THE DISTRICT COURT'S OPINION
On March 12, 1985, the trial court issued its Opinion (RE, Op., 

Pg. 25-62) ruling that Plaintiffs had failed to prove a violation of

2/ Several Motions resolved prior to trial included Defendants' 
Motion to Dismiss filed on June 20, 1983 based in part on its view 
that Section 2 of the Voting Rights Act is unconstitutional (Vol. 1, 
Pgs. 204-205; Vol. 2, Pgs. 286A-286FFF).

On February 16, 1984, the trial court denied the City's request for a dismissal on the constitutionality issue ruling:
[T]he motion of defendants to declare the Section 2 of 
the Voting Rights Act unconstitutional is denied 
without prejudice. The court sees wisdom in the 
prospect of allowing the record to ripen with respect 
to this issue.

(Vol. 2, Pg. 604)
No subsequent Order following the "ripening of the record" has 

been issued by the District Court relating to the constitutionality of the Voting Rights Act.

-2-



Section 2 of the Voting Rights Act and entered a Final Judgment for 
the Defendants on March 30, 1985 (RE, Pg. 24).3/

STATEMENT OF THE FACTS 4/
A. GENERAL BACKGROUND

Fort Lauderdale was incorporated in 1911 (P.Ex. 2). According

3/ The Trial Court, void of any legal authority, makes four outcome 
determinative conclusions as to the governing time frame to assess evidence in this case.

First, the Trial Court essentially disregards nine unsuccessful 
pre-1971 black candidacies by restricting its view to elections 
between 1971 and 1982 because it found "serious efforts in a black 
candidacy began about that time." (RE,Op., Pg. 26)

Secondly, while wiping the slate clean of nine pre-1971 
candidacies, notwithstanding its own view that 1985 election results 
could affect the Court's decision, the Court purposefully avoided 
consideration of the three unsuccessful 1985 black candidates. See, 
Order of March 11, 1985 (RE, Pg. 23). ("Because of the desire of 
this Court that this opinion and decision would neither affect this 
year's City elections, nor be affected by the final results, the 
Court is entering this opinion on the late afternoon of the day of the general election.")

By limiting its review to black candidates between 1971 and 
1982, the Court only reviewed four of the thirteen black candidates, 
or seven of nineteen black candidacies. See, infra, Pgs. 63-64.

Third, for purposes of concluding that blacks have exceeded "pr 
oportional representation," Judge Roettger applies the 1970 
population data (14.69% black), rather than the 1980 census data 
(21% black), or on the average for the past several decades (average from 1930 to 1980: 22% black) (RE,Op. Pg. 61).

Fourth, in considering the responsiveness factor, the Court 
focuses on the City's efforts since 1980 to achieve employment 
opportunities for blacks. (RE,Op., Pgs. 53-55) Notwithstanding the 
fact that since June 17, 1980, the City of Ft. Lauderdale has been 
under a Federal Court Order to improve hiring and promotional 
opportunities for blacks in the City's police and fire departments. (P.Ex. 23)
4/ This section briefly summarizes the facts presented at trial.
In the interest of fully exploring the objective legal factors which 
Congress listed as probative of a Section 2 violation in the context 
of the facts in this case, rather than in isolation, many of the 
undisputed and underlying facts are discussed in greater detail in
the Argument section.

-3-



to the 1980 Census, its population totals 153,279 persons, of whom 
21% or 32,225 are black (P.Ex. 15, Tab 1). Although the de jure 
residential segregation imposed by the City of Ft. Lauderdale was 
repealed in 1948, see, infra, Pg. 22, its impact on residential 
segregation has endured (Tr.Vol. 9, Pg. 464; Tr.Vol. 10, Pgs. 
127-28). Ft. Lauderdale's most striking demographic characteristic 
is its extreme degree of residential segregation. Blacks today in 
Ft. Lauderdale are highly concentrated, wedged literally between two 
sets of railroad tracks, in the northwest quadrant of the City. The 
relationship between the prior de jure and present segregation is 
evidenced by the fact that approximately 87.2% of all black 
residents in the city (P.Ex. 29). This concentration is literally 
within, adjoining, or adjacent to the boundaries of the 1941 legally 
segregated "Negro district" (Ibid.), created through a series of 
municipal segregation ordinances.5  ̂ The differences between the 
segregated black residential community in the northwest and the 
white community elsewhere are more than simply racial. Blacks, as 
compared to their white counterparts, are poorer; are significantly 
less educated; are grouped in lower level menial employment

5/ The City's legal efforts to segregate blacks began in 1922 (P. 
Ex. 6, Tab A, Ord. No. 140); continued in 1926 (P. Ex. 3, Fact 4, 
Ord. No. 470); were publicly enforced in 1929 (P. Ex. 3, Fact 18); 
were redefined in 1936 (P. Ex. 3, Fact 76, Ord. No. 820); were 
redefined in 1939 (P. Ex. 3, Fact 34, Ord. No. 983); were redefined 
again in 1939 (Ord. No. 1005); were publicly enforced in 1939 (P. 
Ex. 3, Facts 34, 37); and were reinforced and redefined with two 
ordinances in 1941 (P. Ex. 3, Facts 45, 46, Ord. Nos. C-48 and 
C-51). In 1942, the City attempted to create a permanent buffer 
zone to surround the black community (P. Ex. 3, Facts 48, 51).

-4-



positions; and are more likely to live in slum and otherwise over­
crowded living conditions.^

Under Fort Lauderdale's election system, city commissioners run 
in a primary and then in a general election. The 10 candidates who 
obtain the highest number of votes in the primary qualify for the 
general election; and the 5 candidates who receive the highest 
number of votes in the general election become city commissioners. 
Each voter may vote for up to 5 candidates in each of the elections 
(P.Ex. 2, Fact 12). All commissioners run at-large with no 
subdistrict or ward residency requirement (P.Ex. 2). Despite the 
fact that Ft. Lauderdale historically has been and is presently more 
than 20% black (P.Ex. 15, Tab 1), the City Commission was all white

6/ The following socio-economic disparities are revealed in 1980 
Census data:

Income: In 1979, the average median income for all families inFort Lauderdale was $15,410, while the median income for black 
families was $9,761 (P. Ex. 15, Tab 5).

Education: As of 1980, one of every three (33%) black adults
had an eighth grade or less education as compared to only one of 
every 10 (10%) white adults (P. Ex. 15, Table 3). Over 42% of white 
adults had received some college education as compared to only 13% 
of black adults and similarly, approximately 21% of white adults had 
four years of college as compared to only 4.1% of black adults (P. 
Ex. 15, Tab 3).

Employment Status: Approximately 28% of the white work force
hold professional and executive type positions as compared to 10% of 
the blacks (P. Ex. 15, Tab 4). On the opposite end of the scale, 
nearly one in every three blacks works in service occupations (P.
Ex. 15, Tab 4).

Living Conditions: Black households in Fort Lauderdale are
nearly twice as likely to be renters as opposed to home owners, as 
61% of white households live in homes they own as opposed to 30% of 
black families (P. Ex. 15, Tab 6). Black households also are more 
likely to occupy overcrowded living conditions and live in slum and 
blighted areas (P. Ex. 18, Tab 7), ( Vol. IV, Pg. 122).

-5-



from 1911, the date of its incorporation, until 1973 when the first and 
only black was elected to city office (P.Ex. 5, 13). The black 
commissioner elected in 1973, Andrew DeGraffenreidt, was re-elected for 
two additional commission terms in 1975 and 1977 before being defeated 
in 1979. No black candidate, other than Mr. DeGraffenreidt, has been 
elected, notwithstanding efforts by 12 other black candidates spanning 
a 28 year period between 1957-1985.^ (P.Ex. 25).

B. THE BLACK CANDIDATES: 1957-1982
(i) 1957-1967

In 1957, Nathaniel Wilkerson, the first black candidate to run for 
City Commission, announced his candidacy by stating that: "he hope(d) 
to serve as a link between the negro population and the City 
government." (P.Ex. 14A, March 4, 1957). Although unsuccessful in both

7/ On March 12, 1985, the same day the trial court issued its Order 
and Opinion in this lawsuit, two additional black candidates, Beau 
Cummings and Leola McCoy lost their bid for election to the City 
Commission thus assuring the continuation of an all-white Commission 
through 1987 (Vol. 5, Pgs. 1190-1230; Vol. 6, Pgs. 1231-1461). A third 
additional black candidate, Henry L. Scurry, lost in his bid for 
election when he was eliminated in the February 12, 1985 primary 
election (Vol. 5, Pgs. 1194-1219; Vol. 6, Pg. 1335).

On March 22, 1985, ten days after the trial court issued its 
opinion and order and five days prior to the Court's entry of Final 
Judgment (RE,Pg. 24), Plaintiffs supplemented the record with certified 
copies of voter registration and election data corresponding to the 
February 12, 1985 primary and March 12, 1985 general City Commission 
elections (Vol.6, Pgs. 1241-1461). The record was also supplemented 
with affidavits from the unsuccessful black candidates Beau Cummings 
(Vol.6, Pgs. 1221-1225) and Leola McCoy (Vol.6, Pgs. 1227-1231), and 
with an affidavit from Dr. Rudolph 0. de la Garza, the political 
scientist who also testified at trial. Dr. de la Garza's affidavit 
describes the statistical relationship between the race of the voter 
and the race of the candidate in the 1985 primary and general elections 
(Vol.5, Pgs. 1194-1219).

-6-



his 1957 and 1959 campaigns, Wilkerson received overwhelming support 
from all the City "negro precincts" (P.Ex. 14A, April 10, 1957; April 
29, 1959), (P.Ex. 25, Table 3).

Now Judge, then lawyer Thomas Reddick was the second black to seek a 
position on the Ft. Lauderdale City Commission, running in 1963 and 
again in 1967. Despite his qualifications, which ultimately led to his 
appointment as the first black Circuit Judge not only in Broward County 
but throughout the State of Florida (Tr. Vol. 11, Pg. 245), and signifi­
cant support from the black electorate, Judge Reddick received less than 
minimal support from white voters in Ft. Lauderdale (P. Ex. 25, Table 3).

In 1967, blacks developed a campaign strategy in which five blacks 
ran for the Commission (Tr.Vol. 8, Pgs. 221-222). Alcee Hastings, an 
architect of that strategy, explained that the five black candidate 
strategy was undertaken to encourage black turnout (Tr.Vol. 8, Pgs. 
336-38; P. Ex. 34, Pgs. 36-38). While it did not result in the election 
of any black commissioners, this strategy led to increased black voter 
turnout in subsequent elections.

(ii) 1969-1971: ALCEE HASTINGS
In 1969 and again in 1971, United States District Court Judge Alcee 

Hastings, then an attorney in private practice in Ft. Lauderdale, ran 
for the City Commission. Judge Hastings, who had waged prior campaigns 
for the Florida House of Representatives, the Florida Senate, the State 
Public Service Commission and the United States Senate, was one of the 
most politically experienced candidates for City office (Ibid., Pgs. 
8-10). However, notwithstanding this broad political experience, Judge 
Hastings found his ability to raise funds and campaign in the white 
community severely limited (Ibid., Pgs. 11, 19-20, 29, 72).

-7-



Judge Hastings’ testimony that he had lost the election because 
he is black (Ibid., Pgs. 13, 47-48) is corroborated by the results 
of the election. In 1971, he received a vote from virtually every 
black (98%) who walked into the polling booth, but received a vote 
from less than one-third of the white voters (31.9%) (P. Ex. 38). 
Measured by the bi-variate regression analysis, his support from 
blacks was literally perfect (R-2 = .99) (P. Ex. 25, Table 2); and 
while he finished first among the candidates in every one of the 7 
black precincts, he failed to finish among the first 5 candidates in 
any of the 52 white precincts (P. Ex. 25, Table 3).8^

C iii) 1973: DeGRAFFENREIDT
In 1973, Andrew DeGraffenreidt became the first and only black 

ever to be elected to the City Commission. However, the 
circumstances of his election were so unique that they have never 
been duplicated by any other black candidate.

First, an unprecedented 31 candidates ran in the 1973 primary. 
This was a significantly larger field of candidates than in any 
other prior or subsequent election (P.Ex. 1, Pgs. 84-85, 112-113, 
126-127, 138, and 148). This large primary field was significant 
for DeGraffenreidt's purposes since it effectively fragmented the 
white electorate's votes among the 30 other white candidates

8/ Judge Hastings' record black support (the 98% support figure is 
unequaled by any black or white candidate in any other election 
between 1971-1982) occurred in the context of a black electorate 
that "single-shot'' voted and thereby forfeited 3 of their 5 votes in 
an attempt to elect a candidate of their choice (P. Ex. 25, Table 
1); and a turnout of black voters (38.5%) that was 80% higher than 
the white turnout in 1971 (21.4%) (P. Ex. 25A). Indeed, this black 
turnout has never been equaled in the white community in any of the 
twelve (12) elections between 1971-1982 (P. Ex. 25A).

-8-



(Tr.Vol. 7, Pgs. 56-57, enabling DeGraffenreidt as the sole black 
candidate to take full advantage of his consolidated black support. 
Second, but equally significant, was the fact that, in 1973, two 
incumbents chose not to run for re-election, thus creating 2 new 
vacancies on the City Commission (Ibid.., Pgs. 61-62).

Building on this fortuitous set of circumstances, DeGraffenreidt 
devised a campaign strategy which sought to minimize the likely 
rejection of a black candidacy by the white community while 
maximizing his support in the black community. As part of this 
strategy, DeGraffenreidt intentionally sought to mask his racial 
identity in the white community. Thus, capitalizing on that fact 
that his last name did not readily identify his race, he campaigned 
in the white community in a manner which deliberately did not reveal 
that he was black. (Ibid., Pg. 52). See also. Testimony of 
Defendants’ expert, Dr. Bullock (Tr. Vol. 12, Pg. 448).
DeGraffenreidt used two sets of campaign literature: one set,
distributed in the white community without his picture; and another, 
distributed in the black community which included his picture (Tr. 
Vol. I, Pgs. 51-52, 112). See also, Testimony of Plaintiffs' 
expert, Dr. de la Garza (Tr.Vol. 8, Pgs. 234-236). Like all viable 
candidates must, DeGraffenreidt ran a newspaper ad with his 
picture. This single ad, however, did not affect his overall dual 
strategy. In addition, while campaigning in the white community, 
DeGraffenreidt employed, as he explained, a "third person" campaign 
style in which he asked white voters to "support Andy DeGraffenreidt 
for the Fort Lauderdale City Commission" but never made it clear 
that he was referring to himself (Tr. Vol. 7, Pgs. 52-53; Tr. Vol.
8, Pgs. 220-223).

-9-



DeGraffenreidt's low profile in the white community contrasted 
sharply with his extensive efforts in the black community. Critical 
to the campaign was DeGraffenreidt's successful effort in getting 
black voters to turn out in unprecedented numbers (Tr. Vol. 7, Pgs. 
46-47, 58, 67). The 41.8% turnout of registered black voters was 
27% greater than the white turnout in that election and 122% larger 
than the average white turnout (18.8%) in the 12 elections between 
1971-1982 (P. Ex. 25A). This record black turnout translated 
directly into votes for DeGraffenreidt, as 96.9% of all black voters 
cast a vote for him, a rate 3 times greater than that of white 
voters (32% of whom cast a vote for DeGraffenreidt) (P. Ex. 36).

DeGraffenreidt aggressively and successfully educated the black 
electorate to the fact that, in the context of Ft. Lauderdale's 
election system where each voter can cast 5 votes for various 
candidates, black voters must forfeit 3 or more of their ballots--in 
a manner unlike whites--in order for a black candidate to succeed 
(Tr.Vol. 7, Pgs. 47-48) (By voting "beyond two you were voting 
against your candidate."); (Tr.Vol. 8, Pg. 235). In the 1973 
General election, the white electorate cast on the average more than 
four ballots (4.3) in contrast to blacks, who on the average cast 
less than two (1.7) (P.Ex. 25, Table 1).

Civ) 1975-1977: DeGRAFFENREIDT
As the record below makes plain, DeGraffenreidt's incumbency in 

1975 and 1977 placed his re-election on an altogether different 
plane. The special status of incumbents, which was recognized by 
both parties below, was enhanced by the fact that the individual 
Commissioners ran as an incumbent team utilizing the structure of

-10-



the system to avoid head-to-head competition between one another.
As an incumbent, DeGraffenreidt embraced this strategy (Tr. Vol. 7,

9 /Pgs. 74-75), as did his colleagues.
As in 1973, in the 1975 and 1977 general elections the black 

voter turnout was so high that its percentages were equaled in the 
white community in only one election between 1971-1982 (P. Ex.
25A). Black voters continued to forfeit their available votes 
casting half as many of the 5 available ballots as did white voters 
(P. Ex. 25, Table 1). Most significantly, blacks, as in 1973, gave 
DeGraffenreidt a significantly higher level of support than whites. 
Indeed, his level of support among blacks was more than twice the 
level of his support among whites. (P.Ex. 30). Re-elected in each 
of the 1975 and 1977 elections, DeGraffenreidt continued his tenure 
of office.

(v) 1979: DeGRAFFENREIDT
Ultimately, notwithstanding his incumbent status, DeGraffenreidt 

lost his Commission seat due to a decrease in white support. In 
1979, 92% of all black voters cast a vote for DeGraffenreidt, and,

9/ Various of DeGraffenreidt's contemporaries on the Commission 
indicated their support of this team concept for re-election. See, 
former Mayor Shaw's testimony (Tr. Vol. 11, Pg. 259; Dep. Pg. 26). 
See also, contemporaneous comments from Shaw (P. Ex. 14A, Article of 
March 9, 1977) ("I feel the team has been re-elected," Shaw said, "I 
don't think any single commissioner or mayor can take credit for 
singly being elected."), and Commissioner Mills (Ibid.) (Mills 
agreed, "they've given us a vote of confidence-as a team. And we'll 
give them the same dedicated type of government."); as well as press 
endorsements reinforcing the same concept (D. Ex. 6-C, Pg. 6) ("We 
recommend the voters stay with the incumbent five tomorrow as we can 
see no reason to break up a 'winning team' nor do we believe that 
any of the five opponents remaining offer the qualifications and 
experience of the incumbents.").

-11-



he ranked first in every black precinct. In contrast, he ranked as 
one of the top five vote getters in only 16 of 64 white precincts 
(P. Ex. 25, Table 3).

While turnout of black voters in 1979 was lower than in the 
past, 19.6%,^^ it was not significantly lower than the white 
turnout for that year, 22.3% (P. Ex. 25A), and was slightly higher 
than the average white turnout for the twelve elections that 
occurred between 1971 and 1982, i.e., 18.8% (P. Ex. 25A). Thus, in 
1979, the historical pattern of elections in Ft. Lauderdale 
returned. Notwithstanding the overwhelming support of black voters, 
the candidate of their choice, by virtue of his failure to obtain 
the support of the majority group, failed to gain sufficient support 
to win an election under Ft. Lauderdale's at-large system.

(vi) 1982
In 1982, two black candidates, Art Kennedy and Louis Alston, ran 

unsuccessfully for the City Commission. Kennedy, an experienced 
campaigner and politician, was a past president of the county-wide, 
bi-racial Broward County Classroom Teachers Association and had run 
for the Broward County School Board in 1976 (Tr. Vol. 11, Pgs. 
310-315). Consistent with other black candidates, other than

10/ The election results plainly reflect that DeGraffenreidt's loss 
was not attributable to the black turnout in his 1979 election 
defeat. Had blacks turned out at the identical level as whites in 
1979 and black voters had single-shot only one ballot for 
DeGraffenreidt, he would have lost the election by 746 votes rather 
than 870.

-12-



his 1982 opponent Alston, Kennedy finished first in all of the
black precincts but within the top 5 positions in only 13 of 64
white precincts (P. Ex. 25, Table 3). Moreover, 95% of all black
voters cast one vote for Kennedy in contrast to 31% of the white

12 /voters (P. Ex. 37).
SUMMARY OF ARGUMENT

This case challenges at-large City Commission elections in Ft. 
Lauderdale for unlawful dilution of black voting strength. The 
essence of a vote dilution claim is that, although there may no 
longer be any formal barriers preventing minorities from 
registering, voting, or running as candidates, the challenged 
election system minimizes minority voting strength and denies 
minority voters an equal opportunity to participate in the political 
process and to elect candidates of their choice. See, Rogers v. 
Lodge, 458 U.S. 613, 616-17 (1982); Ibid, at 616; "The minority's 
voting power...is particularly diluted when bloc voting occurs and 
ballots are cast along strict majority-minority lines." White v. 
Regester, 412 U.S. 755, 765-66 (1973).

11/

11/ The second unsuccessful black candidate, Louis Alston, was within 
the top 3 candidates in each of the 6 black precincts and would have 
been successful in the election had he received an equivalent number 
of votes in the white community.

12/ In Ft. Lauderdale's most recent City Commission election, held 
just several months ago on March 12, 1985, the pattern developed over the past 28 years persists. Notwithstanding the overwhelming support 
of black voters for the black candidates of their choice, the 
candidates failed to gain sufficient support of the white electorate 
and thus lost their bid for public office. (Vol. 5, Pg. 1200)

-13-



In 1982 Congress amended Section 2 of the Voting Rights Act of 
1965 to eliminate the requirement of proving discriminatory intent 
for a statutory violation. Section 2 now prohibits any electoral 
system which "results” in racial discrimination by providing 
minority voters "less opportunity" than whites "to participate in 
the political process and to elect representatives of their 
choice." 42 U.S.C. §1973 (West Supp. 1983).

The undisputed evidence in this record, when examined based on 
the objective factors which Congress listed as probative of a 
Section 2 violation, leads to the conclusion that black voters in 
Ft. Lauderdale do not have equal access to the political process and 
an equal opportunity to elect candidates of their choice: (1)
Florida and Ft. Lauderdale have an extensive past history of 
official discrimination which continues to impair the present-day 
ability of blacks "to participate on an equal footing in the 
political process," infra, Appendix 1, Pgs. la-8a; (2) the 
statistical evidence establishes a strong and persistent pattern in 
City Commission elections of voting along racial lines, infra, Pgs. 
28-35; (3) Ft. Lauderdale's large size and lack of any subdistrict 
residency requirement has enhanced the discriminatory impact of the 
at-large election system and increased the opportunity for 
discrimination, infra, Pg. 55; (4) blacks have been consistently 
denied access to Ft. Lauderdale's most successful candidate slating 
group, infra, Pgs. 58-59; (5) black citizens are disadvantaged by 
their depressed socio-economic status, infra, Pgs.60-62; (6) only 
one black has ever been elected to the City Commission under the 
at-large system in Ft. Lauderdale's 74-year history, infra, Pgs.

-14-



63-65 (7) Ft. Lauderdale City officials have historically been 
unresponsive to the needs of Ft. Lauderdale’s black community, and 
what measures that have been taken have been the result of Federal 
requirement and litigation, infra. Pgs. 66-68; and, (8) Ft. 
Lauderdale's continued utilization of an at-large system is contrary 
to recent state policy initiatives aimed at increasing the 
participation of Florida’s black citizens in the political process, 
infra, Pgs. 68-69.

The evidence discloses a "system’’ which plainly "minimizes or 
cancels out the voting strength and political effectiveness" of the 
black community of Ft. Lauderdale. However, by ignoring 
well-settled legal principles developed in this Circuit and others, 
the District Court erroneously concluded a lack of violation under 
the Voting Rights Act. This ultimate conclusion should be reversed 
on appeal.

STATEMENT OF JURISDICTION
The jurisdiction of this Court is based upon 28 U.S.C. 1291, 

which provides, in part, as follows:

The Courts of Appeals shall have jurisdiction of 
appeals from all final decisions of the district 
courts of the United States..., except where a direct 
review may be had in the Supreme Court.

The appeal stems from a decision of the United States District 
Court which is within the jurisdiction of the Eleventh Circuit Court 
of Appeals.

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ARGUMENT
I. THE CONTROLLING STANDARD OF REVIEW

1. THE "CLEARLY ERRONEOUS" STANDARD
OF REVIEW DOES NOT APPLY TO FINDINGS 
DERIVED FROM AN IMPROPER LEGAL STANDARD

First and fundamentally, the Rule 52(a) F.R.C.P. "clearly 
erroneous standard" applies to the appellate review of facts and 
does not apply to conclusions of law. Pullman-Standard v. Swint.
456 U.S. 273, 287 (1982). Secondly, where the District Court's 
findings are based on an erroneous view of the controlling legal 
standards, the "clearly erroneous" rule does not apply, Swint, 
supra, 456 U.S. at 287, and the findings may be set aside on that 
basis. Kelly v. Southern Pacific Co., 419 U.S. 318, 323 (1974); 
United States v. General Motors, 384 U.S. 127, 141 n. 16 (1966).

In other words, the "clearly erroneous" standard "does not 
insulate factual findings influenced by legal error." Lincoln v. 
Board of Regents of Univ. System, 697 F.2d 928, 938, n. 13 (11th 
Cir. 1983); Johnson v. Uncle Ben's, Inc., 628 F.2d 429, 422 (5th 
Cir. 1980), vacated on other grounds, 451 U.S. 902 (1981). Thus, 
where a finding of fact is "based on a misconception of the 
underlying legal standard, an appellate court is not bound by the 
erroneous standard of review." Pavlides v. Galveston Yacht Basin. 
Inc. 727 F.2d 330, 339, n. 16 (5th Cir. 1984); Noritake Co., Inc, v. 
M/V Hellenic Champion. 627 F.2d 724, 727-28 (5th Cir. 1980).

2. APPLICATION OF THIS STANDARD OF REVIEW
In a series of decisions, United States v. Marengo County 

Commission. 731 F.2d 1546, 1565, 1567, n. 34 (11th Cir. 1984) appeal 
dismissed and cert. denied, __U.S.__, 83 L.Ed 2d 311 (1984); United

16-



States v. Dallas County Comm'n, 739 F.2d 1529, 1534-35 (11th Cir.
1984); McMillan v. Escambia County, 748 F.2d 1037, 1042-43 (5th Cir. 
1984), consistent with the legislative history of the amended 
Section 2, this Court has delineated nine factors that it 
characterizes as "typical factors" which are to be weighed under a 
totality of circumstances approach in assessing whether Section 2 
has been violated. United States v. Marengo County, supra, 731 F.2d 
at 1565; United States v. Dallas County Comm'n, supra, 739 F.2d at 
1534; McMillan v. Escambia County, supra, 748 F.2d at 1042-1043.

The drafters of the amended Section 2 were direct in defining 
the legal standard to be applied by spelling out "specifically in 
the statute the standard that the proposed amendment is intended to 
codify." Senate Report No. 417, 97th Cong., 2d Sess. (1982) at Pg. 
27, reprinted in 1982 U.S. Code Cong, and Admin. News 177-410
(herein "Sen.Rep., Pg.__"). The legislative history explicitly
provides that under the "results test," Congress was codifying an 
"extensive, reliable and reassuring track record of Court 
decisions," Sen. Rep., Pg. 32, and that a "Court would assess the 
impact of the challenged structure or practice on the basis of 
objective factors (emphasis added) derived from the analytical 
framework used by the Supreme Court in White v. Register, as 
articulated in Zimmer," Sen. Rep., Pgs.27-28, n. 113.

Consequently, when a federal judge is called upon to determine 
the validity of a practice challenged under Section 2, as amended, 
the trial court should be held accountable to apply the "typical 
factors" consistent with the intention of the 97th Congress in 
amending Section 2 and with the interpretations already given to

-17-



those factors by this Court in United States v. Marengo, supra, 
United States v. Dallas County, supra, and United States v. Escambia 
County, supra.

In this case, as evidenced by significant factual stipulations
between parties, the essential facts to be applied to each of these

13"typical factors" are not in dispute. /
Since these underlying facts are not in dispute, the basis of 

this appeal is not whether the District Court's factual findings are 
"clearly erroneous," but instead whether the District Court's 
conclusion pertaining to each of the nine "typical factors" derived 
from these undisputed facts is consistent with this Court's 
application of the amended Section 2.

13/ Specifically, the parties stipulated to a) voter registration 
and election data for City Commission elections with black 
candidates (P. Ex. 1, 8, 12); b) a compilation of various City 
charter changes from 1911 through 1973, reflecting changes germane 
to the electoral system (P. Ex. 2), (Tr.Vol. 7, Pg. 12); c) a series 
of summaries of City Commission minutes from 1913 through 1979 (P. 
Ex. 3), (Tr.Vol. 7, Pg. 12); d) a designation of City advisory 
boards and committees, the purpose of the board or committee and 
racial identity of its membership (P. Ex. 4 and 11), (Tr.Vol. 7,
Pgs. 12-13, le); e) summaries of City resolutions and ordinances (P. 
Ex. 67), (Tr. Vol. 7, Pg. 13); f) racial composition of public 
housing projects in Ft. Lauderdale (P. Ex. 7) (T. Vol. 7, p. 13); g) 
results of elections with black candidates between 1957 and 1982 (P. 
Ex. 8) (Tr.Vol. 7, Pg. 14); and h) street address of personal residencies of the City Commissioners from 1937 to present (P. Ex. 
9), (Tr.Vol. 7, Pgs. 14-15).

Additionally, facts reflecting the comparative socio-economic 
status between blacks and whites in Ft. Lauderdale (P. Ex. 15), and 
documentary evidence in the form of a map showing the residences of 
past and present City commissioners and black residential patterns 
were not disputed (P. Ex. 29).

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II. FT. LAUDERDALE'S AT-LARGE ELECTION 
SYSTEM VIOLATES SECTION 2 OF THE 
VOTING RIGHTS ACT BECAUSE IT RESULTS 
IN DISCRIMINATION AND DENIES BLACK 
CITIZENS AN EQUAL OPPORTUNITY TO 
ELECT CANDIDATES OF THEIR CHOICE

In 1982, Congress extended the Voting Rights Act and amended 
Section 2 to strengthen the ability of minority voters to challenge 
discriminatory election practices. The amendment to Section 2 was 
designed in part to eliminate the requirement, prescribed in City of 
Mobile v. Bolden, 446 U.S. 55 (1980), that a Plaintiff demonstrate 
purposeful discrimination in order to find that a voting practice is 
unlawful. A violation of this new Section 2 "results" test is shown 
if "based on the totality of the circumstances" minority voters 
prove that they "have less opportunity than other members of the 
electorate to participate in the political process and to elect 
representatives of their choice." 42 U.S.C. § 1973(b) (West Supp. 
1983).

This Court has enumerated the "typical factors," as articulated 
by Congress in its passage of the 1982 Amendment, which courts 
should consider under the "totality of circumstances" approach in 
deciding whether plaintiffs have established a violation of Section 
2. United States v. Marengo County Comm'n, supra, 731 F.2d at 1565, 
United States v. Dallas County, supra, 739 F.2d at 1534-1535.

Our discussion of the legal standards embodied in these factors 
as applied to the record evidence of this case follows.

-19-



1. HISTORY OF OFFICIAL DISCRIMINATION 
AND ITS LINGERING EFFECTS

A. THE HISTORY

The District Court, while recognizing that "there was evidence 
of discrimination against blacks in the City of Ft. Lauderdale in 
the past," these findings are outlined in Appendix 1 of this Brief, 
found that "almost none" of this history consisted of the "usual 
badges of bias against minorities participating in the political 
process" (RE, Op., Pg. 36). The District Court concluded that past 
racial discrimination has not adversely affected the right of blacks 
"either to register or to vote or otherwise participate in the 
democratic process" (Ibid., 38-39); determining that this was 
"particularly true" since black voter turnout has equaled or 
exceeded white turnout since 1979 (Ibid., 39).

Judge Roettger's conclusion that past discrimination has no 
effect on the present day ability of blacks to participate in the 
political process is based on an improper application of the 
governing legal standards to undisputed historical and contemporary 
facts.

Despite the undisputed historical evidence, outlined in Appendix 
1, the District Court erred by concluding (a) that none of the 
historical evidence evinces the "[U]sual badges of bias against 
minorities in the political process" (RE, Op., Pg. 36) and (b) that 
the fact that black voter turnout since 1970 equals or exceeds white 
voter turnout (RE, Op., Pg. 39), precludes a finding that historical 
discrimination adversely affects blacks in Ft. Lauderdale from 
participating in the political process.

-20-



These conclusions are legally erroneous for two reasons. First, 
under Section 2, "discrimination against minorities outside of the 
electoral system" cannot be ignored in assessing the challenged 
election system, McMillan v. Escambia County, Fla., supra, 748 F.2d 
at 1044; United States v. Marengo County, supra, 731 F.2d at 1567, 
1574 (Consideration of "a history of pervasive racial discrimination 
that has left blacks economically, educationally, socially and 
politically disadvantaged."); United States v. Dallas County, supra, 
739 F.2d at 1537 (same); Rodgers v. Lodge, supra, 458 U.S. at 
624-625 (Historical evidence including discrimination in schools, 
County employment, and in board and committee appointments all 
considered in assessing "present opportunity of blacks to 
effectively participate in the political process."). The Trial 
Court's view of Ft. Lauderdale's past racial history, limited to the 
"usual badges of bias against minorities participating in the 
political process" (RE,Op., Pg. 36) is legally incorrect.

Secondly, the inquiry mandated by Section 2 as to whether past 
discrimination affects present black political participation is not, 
as the Trial Court concluded, (RE, Op., Pgs. 38-39), limited to a 
comparison of the rates of voter turnout between black and white 
voters. Rodgers v. Lodge, supra, 458 U.S. at 625 (Reduced political 
participation evidenced by discrimination in hiring of county 
employees and applicants to boards and committees); McMillan v. 
Escambia County, Fla., 748 F.2d at 1045 (No significant difference 
currently existing between black and white registered voters, 
however, "other barriers... effectively operate to preclude access 
for blacks."); Jones v. City of Lubbock, 727 F.2d 364, 385 (5th Cir.

-21-



1984) (Notwithstanding voter registration drives which have to an 
extent ameliorated historical discrimination, the "present system 
nevertheless preserves a lack of access.").

B. PRESENT EFFECTS OF THIS 
PAST HISTORY

Significantly, by limiting its analysis to comparing voter 
turnout rates between black and white voters, the District Court 
disregarded important undisputed evidence that this past history of 
discrimination has had and continues today to have a significant 
impact on black citizens' participation in the political process.

(1) Residential Segregation
Although residential segregation laws were repealed in 1948, 

their impact on residential patterns has endured. See, supra, Pg.

14/ See, also, T. Vol. 9, Pg. 464); (Vol. 10, Pgs. 127-28) (P. Ex. 
29); (Almost 9 out of 10 [87.2%] of all black residents in the City 
reside literally within, adjoining, or adjacent to the boundaries of 
what was labeled and defined by 1941 City Ordinance as the "Negro 
District.") The segregative impact of these apartheid like 
ordinances is a present lingering effect of past racial 
discrimination which impedes blacks' access to the political 
process. See, e.g. , Wise v. Lipscomb. 399 F.Supp. 782, 790 (N.D. 
Tex. 1975) affd, 551 F.2d 1043 (5th Cir. 1977) rev'd on other 
grounds, 437 U.S. 535 (1978); Dowdell v. City of Apopka. 698 F.2d 
1181, 1186 (11th Cir. 1983) (1937 unenforced city ordinance 
prohibiting blacks from living on south side of tracks contributed 
to ghetto-like qualities of black residential area); Escambia, 
supra, 748 F.2d at 1044 (Continued separation of blacks from 
dominant white society reduced black participation in government); 
Civil Voters Organ, v. City of Terrell. 565 F.Supp. 338, 342 (N.D. 
Tex. 1983) (Lingering racially segregative housing patterns impede 
black political participation.)

-22-



(2) Imbalance of Blacks on City Boards and r.nmmi ttsas
Presently, as well as in the past, blacks have been denied 

appointment to the City's various citizen advisory boards and 
committees. (P. Ex. 4 and 11). Participation on these committees 
is the most rudimentary and basic initial step into the City's 
political process. See, e.g., Tr.Vol. 11, Pg. 274 (Mayor Dressler's 
acknowledgement that Boards and Committees constitute "a very 
important function" in the City's political process); (Tr. Vol. 10, 
Pg. 202).15/

The Supreme Court has recognized the interrelationship between 
blacks' appointment to boards and committees and access to the 
political process. See, Rodgers v. Lodge, supra, 456 U.S. at 625 
(Denial of "appointments to boards and committees which oversee the 
[city] government can restrict the present opportunity of blacks to 
participate in the political process); McMillan v. Escambia County 
(II). 688 F.2d 960, 968 n. 16 (11th Cir. 1982) (Severe 
underrepresentation of blacks on boards and committees reflects 
exclusion from governmental policy-making machinery).

15/ From May, 1957 through June, 1983, there have been 66 different 
City citizen advisory boards or committees in existence (P. Ex. 4)
On 40 of these boards and committees, no black had ever been appointed 
during this 16-year period. On 13 of these committees there had been 
only one black appointed during this period. As of October, 1984, 
there were 24 City advisory boards and committees (P. Ex. 11, Facts 
1-24). There were no black members on 13 of these boards. There were 
237 members on these 24 boards and committees, (P. Ex. 11), of which 
18, or 7.6% were black (P. Ex. 11). Additionally, of the 18 black 
members, 5 serve on the Community Services Board, which by ordinance 
requires appointment of members from the northwest quadrant and 
blighted areas of the City (P. Ex. 11, Fact 12). Accordingly, of the 
remaining 23 boards and committees, blacks comprise 13 of the total 221 members, or 5.9% (P. Ex. 11).

-23-



(3) Employment
Additionally, Judge Roettger disregarded undisputed evidence 

showing past discrimination shaping present City employment 
practices which act to restrict the present opportunity of blacks to 
participate in the political process. Rodgers v. Lodge, supra. 458 
U.S. at 625. While recognizing that blacks had petitioned the City 
to employ black police officers (RE, Op., Pg. 38 n.3), the Court 
disregarded that, on June 16, 1980, forty years after blacks began 
petitioning the City to employ black police officers, the City was 
placed under a court order through litigation initiated by the 
Federal Government to increase the employment opportunities for 
blacks in the City's police and fire departments. United States v. 
City of Fort Lauderdale, No. 80-6289-CIV-ALH (S.D. Fla. 1980) (P. Ex. 
23). Notwithstanding the 1980 Court Order, as of June 1983, of the 
City's 353 black workers, 210 or 49.2% are classified as Service 
Maintenance employees (P. Ex. 20, Table 13). Similarly, 193 black 
workers, or 54.6% of the City's 353 employees are concentrated in two 
of the City's ten designated departments - Sanitation and Sewage and 
Parks and Recreation (P. Ex. 20, Table 12).

(4) Public Housing
Ft. Lauderdale operates public housing facilities through its 

Housing Authority. (Tr.Vol. II, Pgs. 264-66). Six of the nine Public 
Housing projects located in the City are segregated. (P. Ex. 7).

(5) Education
Today black children attend schools located in or serving Ft. 

Lauderdale, which are more racially isolated and segregated than in 
1971, the year that this Court's initial desegregation plan for Ft.

-24-



Lauderdale students was implemented in Allen v. Board of Public 
Instruction of Broward, 432 F.2d 302 (5th Cir. 1970) cert, denied 
402 U.S. 952 (1971 )16/

16/ Evidence of isolation and segregation was presented by Dr. 
Gordon Foster, one of the nation's leading desegregation experts, 
(Vol. 9, Pgs. 478-491), (P. Ex. 16), who has served as a consultant 
to the Broward County School Board since 1967, stemming from the 
Board's initial desegregation efforts. (Tr.Vol. 9, Pgs. 491-493). Ft. Lauderdale is located in Broward County.

Drawing upon that experience, as well as his desegregation background with virtually every school board in the State of 
Florida, (Ibid., Pg. 481), Dr. Foster conducted a study and 
concluded that in the schools located in or serving Fort Lauderdale:
(1) (A) The number of black students attending racially identifiable 
or segregated schools has almost doubled since 1971. Four out of 
five (80%) black students today attend racially identifiable 
schools. In 1971, when integration was ordered, 48% of the black 
students attended identifiable schools. (P.Ex. 24, Table 5A), (Tr. 
Vol. 10, Pgs. 5-7), (P. Ex. 24, Table 5A); (B) the number of black 
students attending racially isolated schools has tripled since 1971, 
(Ibid.); (C) and reciprocally, the number of black students 
attending integrated schools has decreased from 52% in 1971 to 20%;
(2) The same schools that were segregated through de iure 
restriction in 1968, (Tr. Vol. 10, Pg. 11) are likely to be ''still 
predominantly black." (Ibid, Pg. 13), (P. Ex. 24, Table 6); (3) 
Schools in Fort Lauderdale today have increasingly higher 
enrollments of black students than in 1968, in comparison to the 
entire County. (Tr. Vol. 10, Pgs. 15-17), (P. Ex. 24, Table 7); (4) 
Black students in more racially isolated schools have generally 
performed poorer on standardized achievements tests, (Tr. Vol. 10, Pg. 24), (P. Ex. 24, Table 8).

Based upon these findings, Dr. Foster concluded that blacks are 
"still less fitted than their white counterparts" in Fort Lauderdale 
to "participate in the voting process." (Tr. Vol. 10, Pg. 48).

In the face of this authoritative evidence, the Trial Court 
noted that: (1) the "City of Fort Lauderdale has no control or voice 
in the operation of the schools." (RE, Op., Pg. 51 n. 10), a fact 
which has no legal relevance at all, see, e.g.. United States v. 
Marengo County, supra, 732 F.2d at 1567 n. 36 (Even history of 
private discrimination is relevant to issue of minority access to 
political process); and (2) a high school located outside of the 
City was not included in Dr. Foster's analysis (RE, Op., Pg. 51 n. 
10) notwithstanding the fact that Dr. Foster's data utilized in his 
study, and corroborated by his 18 year association with the School 
Board, was authenticated since it was derived directly from the 
School Board itself (Tr.Vol. 9, Pg. 509; Tr.Vol. 10, Pgs. 8-10).

-25-



The Trial Court determined that the effects of "discrimination - 
or lingering affects - in the field of education" (RE, Op., Pg. 51) 
could not adversely affect political participation due to the level 
of "turnout of black voters." (Ibid.) This conclusion is legally 
baseless, and constitutes error. United States v. Marengo County, 
supra, 732 F.2d 1567-69 (History and lingering affect of segregated 
education impeding black access to the political process); Id., at 
Pg. 1568 ("[B]ecause blacks are poorer and less educated they have 
less political influence than whites."); United States v. Dallas 
County Comm'n, supra, 739 F.2d at 1537; McMillan v. Escambia County, 
Fla., supra, 748 F.2d at 1044.

In summary, the (1) sustained pattern of rigid residential
racial segregation; (2) present underrepresentation of blacks on
City advisory boards and committees; (3) present discriminatory City
employment practices; (4) segregation in public housing; (5)
educational isolation and segregation of black students; (6)
depressed socio-economic status, see, infra, Pgs. 60-62, and (7)

17/persistent voting along racial lines, infra, Pgs. 28-35, all
reflect the present isolation of blacks and the imbalance in City 
practices which directly impair blacks' ability to participate on an 
equal footing in the political process.

17/ Only one black has ever been elected to the Ft. Lauderdale City 
Commission in the 74 years of its existence, notwithstanding 
numerous black candidates, and the fact that Ft. Lauderdale is over 
twenty percent black. Moreover, a continuing high degree of 
racially polarized voting is itself a vestige of past racial 
segregation. Jones v. Lubbock, supra, 727 F.2d at 383 (The 
persistence of polarization moreover signals that race and ethnicity 
still significantly influence the electorate's preferences); Kirksey

(Footnote continued to next page)
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2. RACIALLY POLARIZED VOTING
This Court as well as previously the Fifth Circuit over the past 

decade has identified a variety of methods to measure racially 
polarized voting, all of which correlate the race of a voter with

- I Q /the race of the candidate. When the degree of the correlation 
is clear and consistent, then a finding of polarization has been 
made.

As reviewed in detail, infra. Pgs. 28-35, Plaintiffs have met 
each and every of these polarization standards in our analysis of 
the black candidacies in Ft. Lauderdale. Notwithstanding, the Trial 
Court in disregard of the standards articulated by this Court to 
gauge racial polarization, either rejected our analysis or failed 
even to consider this Court's precedent insofar as assessing 
polarization. As such, the District Court's conclusion that

(Footnote continued from previous page)
v. Board of Supervisors of Hinds County. 554 F.2d 139, 146 (5th Cir. 
1977) (en banc) cert, denied. 434 U.S. 968 (1977) (Absence of black 
elected officials is indication that blacks' access to the political process is not yet unimpeded.").
18/ See, e.g., McMillan v. Escambia County. Fla., supra. 638 F.2d at 
1241 n. 6; 688 F.2d at 966 n. 12 (Bivariate regression correlations of
.85-.98 as proof of polarization.) vacated and remanded. ___U.S.___,
80 L.Ed.2d 36 (1984) aff'd. supra. 748 F.2d at 1043 n. 12; NAACP v. 
Gadsden County School Board. 691 F.2d 978, 983 (11th Cir. 1982) (Same 
bi-variate analysis); Bolden v. City of Mobile. 423 F.Supp. 384,
388-89 (S.D. Ala. 1976) (Same bi-variate analysis) aff'd 571 F.2d 238 
(5th Cir. 1978) rev'd on other grounds 446 U.S. 55 (1980); Nevitt v. 
Sides, 571 F.2d 209, 223 n. 18 (5th Cir. 1978) cert, denied 446 U.S. 
951 (1980); United States v. Dallas County Comm'n. supra. 739 F.2d at 
1535 n. 4 (Racial polarization index of values ranged from 37 to 75; 
index of 40 or higher is significant); Jones v. City of Lubbock. 
supra, 727 F.2d at 380 (Racial bloc voting exists where polarization 
index is 52); McMillan v. Escambia County. Fla., supra. 638 F.2d at 
1241 n. 6, 748 F.2d at 1043 (Significant majority [60%] of whites don't vote for black candidate.).

-27-



"[t]here has been no racial polarization showing a violation of the
Voting Rights Act/' (RE, Op., Pg. 47), is infected by erroneous legal
standards and is contrary to the undisputed factual evidence, which in

19 /some instances was never even considered by the Court.
In discussion of the racial bloc voting issue, we review in the 

following order: (1) Plaintiffs' evidence of polarization; (2) the
Trial Court's erroneous rejection of that evidence; and (3) the 
multi-variate regression, which was erroneously relied upon by the 
Trial Court in its conclusion that ''no racial polarization,*' Ibid., 
exists in Ft. Lauderdale elections.

A. PLAINTIFFS' PROOF OF 
RACIAL POLARIZATION

(1) THIS COURT'S STATISTICAL METHODS
USED FOR GAUGING RACIAL POLARIZATION
(a) BIVARIATE REGRESSION ANALYSIS

Standard analytic procedures--specifically, correlation and 
regression analyses--have been used for more than a decade to assess 
the degree to which voting in elections is racially differentiated, 
and the estimated differences in voter preferences derived from these

_____________________________/

19/ In bears mention that other than Judge Higginbotham’s concurring 
decision for denying a rehearing en banc in Jones v. City of 
Lubbock, 730 F.2d 233-36 (5th Cir. 1984), the concepts of which are 
discussed at greater length in, infra, Pgs. 40-45, Judge Roettger 
relied on no legal authority for his polarization analysis other 
than his passing mention to the following three employment 
discrimination decisions having absolutely nothing to do with racial 
polarization standards: Teamsters v. U.S., 431 U.S. 734 (1977);
Wilkins v. Univ. of Houston, 654 F.2d 388 (5th Cir. 1981), reh' g 
denied 662 F.2d 1156 (5th Cir. 1981); and Boylan v. The New York 
Times (unreported settled case). See, RE, Op., Pg. 47.

-28-



procedures have rarely been a major source of disagreement in 
litigation.

Racially polarized voting is most frequently measured by 
correlating the percentage of registered minority voters in a 
precinct with the percentage of the vote minority candidates 
received in that precinct. This analysis measures the relationship, 
and the strength and consistency of the relationship, between the 
two variables. This correlation, which is the precise technique 
utilized in Plaintiffs' bi-variate regression analysis resulting in 
correlations between .81-.99 in 16 elections with 13 elections 
producing associations greater than .91 (P.Ex. 25, Table 2, Column 
1), see also, (Tr.Vol. 11, Pgs. 251-261), which is lodged in 
Appendix 2 for the Court's convenience, is the accepted statistical 
standard for gauging racial polarization in our Circuit. McMillan
v. Escambia County, Fla., 638 F.2d 1239, 1291 n. 6 (5th Cir.

20 /February 19, 1981) (Racial bloc voting found, based "on very 
high correlations" between the percentage of blacks in a precinct 
and number of votes a black candidate received in that precinct), 
aff'd on rehearing, 688 F.2d 960, 966 n. 12 (5th Cir. 1982) 
(Correlations between .85-.98 as proof of polarization) vacated and
remanded in light of amended Section 2, ___U.S.___, 80 L.Ed. 2d 36
(1989), aff'd 798 F.2d 1037, 1093 (Confirming the use of bivariate 
regression analysis to prove racially polarized voting.); NAACP v. 
Gadsden County School Board, 691 F.2d 978, 983 (11th Cir. 1982)

20/ Pre-October 1, 1981 decisions of the old Fifth Circuit are binding on the Eleventh Circuit. Bonner v. City of Prichard, 661 
F.2d 1206, 1209 (11th Cir. 1981) (en banc).

-29-



(Same bivariate analysis) and Lee County Branch. NAACP v. City of 
Opelika, 748 F.2d 1473, 1481 (11th Cir. 1984).217

* * * *

In order to corroborate and further explore the Ft. Lauderdale 
electorate's strong and persistent pattern in city commission 
elections of voting along racial lines, Plaintiffs submitted the 
following additional analysis commonly utilized by the courts in 
assessing racial bloc voting.

(b) RACIAL POLARIZATION INDEX
The "racial polarization index" is calculated by determining the 

percentage of votes cast in the black precincts for a particular 
candidate, and then subtracting the votes cast for the same 
individual in the white precincts. This Circuit, just last year in 
reversing a trial court, found polarization under this index 
technique in elections where index values ranged from 37 to 75, and 
held that an index of 40 or higher was significant. United States 
v. Dallas County, supra, 739 F.2d at 1535 n. 4. See also. Jones v. 
City of Lubbock, supra, at 380 (5th Cir. 1984) (Finding of 
polarization with index of 52 where minorities received 11% of the 
white vote compared to 63% in minority areas.). In Fort Lauderdale,

21/ Other courts have adhered to this same bivariate correlation 
standard in their determinations that polarization existed. See, 
g-g-» Jones v. City of Lubbock, 727 F.2d 364, 380-81 (5th Cir7T984) 
(Bivariate regression analysis utilized to prove racially polarized 
voting.); City of Rome v. United States. 472 F.Supp. 221, 226 n. 36 
(D.D.C. 1979) (Three Judge panel) ( Correlation method surest way of 
demonstrating racial bloc voting) aff'd 446 U.S. 156 (1980); Major 
— Treen, 574 F.Supp. 325, 338 (E.D. La. 1983) (Three Judge Court) (Range from .51 to .95 in proving polarization); Ginales v. 

Edminsten, 590 F.Supp. 345, 367-68 n. 29 (E.D. N.C. 1984) (Three 
Judge panel) (Range between .7 - .98 with most above .90).

30-



the polarization index average for all elections in which black 
candidates ran since 1971 is 54 (P. Ex. 38).22/?

(c) SUPPORT FOR WINNING CANDIDATES
In further analyzing the differing black and white voters 

electoral behavior in order to determine polarization, Plaintiffs 
presented unrebutted evidence measuring the two racial communities' 
ultimate support for the 5 winning candidates in each general 
election (4 winning candidates in 1979).

Voter support for the ultimate winning candidates was analyzed 
in all general elections between 1971 through 1982 in racially 
homogenous precincts. In virtually every case, in each white 
precinct white voters cast their votes for one of the 5 winning 
candidates more than 50% of the time and in many instances as much 
as 60% to 70% of the time. Among black voters, the percentage of 
support of their votes for winning candidates was in the range of 
10%-12% with the exception of the DeGraffenreidt elections. (Tr.
Vol. 8, Pgs. 207-208), (P. Ex. 25, Table 4). The pattern that 
emerged over this 11 year period, structured in graphic format in 
Plaintiffs' Exhibit 36, and recognized by Defendants' own expert 
(Tr. Vol. 12, Pgs. 505, 508), is that whites cast a disproportionate 
share of their votes for winners as compared to their black 
counterparts. (Tr. Vol. 8, Pgs. 208-209). * 11

22/ In all elections analyzed between 1971-1982, on the average, 86% 
of black voters cast at least one vote for a black candidate while only 32% of all white voters cast a vote for a black candidate, thus 
yielding a polarization index of 53 (P. Ex. 38). See also. (Tr.Vol.
11, Pgs. 359-360) (Defendants' expert confirmed this conclusion [31.85%]).

-31-



(d) BLACKS' IMPACT ON THE 
OUTCOME OF ELECTIONS

A further study conducted by Plaintiffs analyzed the election 
results to determine whether the polarization of voting was 
substantively significant. This inquiry simply addressed whether 
the voting was sufficiently polarized so that the result of any of 
the twelve primary and general elections between 1971 through 1982 
would have been different if it had been held with only white 
voters. In every election between 1971-1982, involving 120 
candidates--other than one candidate in the 1971 primary and another 
in the 1973 general election--the results as to which candidate won, 
or in the instance of a primary election, which candidate had 
finished in a position to qualify for the general election, would 
have been identical even if no black voters had ever voted. (Tr.
Vol. 8, Pgs. 216-218), (P. Ex. 25, Table 5). See, Gingles v. 
Edminsten, supra, 590 F.Supp. at 368 (Polarization "substantively 
significant" based upon identical finding.).

(e) AVERAGE NUMBER OF VOTES 
CAST BY V O T E R S ______

Black voters, unlike whites, must forfeit a majority of their
2 3 /votes in order to attempt to elect a candidate of their choice.

23/ In all elections other than 1979, white voters utilized more 
than 4 of their 5 possible votes, whereas black voters, in every 
election since 1971, used less than three of their votes (P. Ex. 25, 
Table 1). The Defendants' expert witness corroborated this finding 
(Tr. Vol. 12, Pg. 500). See also, testimony of Plaintiffs' expert 
(Tr. Vol. 8, Pgs. 190, 202, 204-205. Indeed, this strategy was one 
of the factors to which DeGraffenreidt's victory was attributable in 
1973, the only time in the history of the City of Fort Lauderdale
that a black non-incumbent won. In that election, blacks cast less 
than two (1.7) oE their 5 votes (P. Ex. 25, Table 1).

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See, testimony of Dr. Bullock, Tr. Vol. 12, Pgs. 433-439. This 
practice, utilized in an attempt to ameliorate the discriminatory 
effect of the at-large voting system, greatly reduces the ability of 
blacks to influence the outcome of elections since, unlike whites, 
they must forfeit their vote for a full slate of candidates.
Gingles v. Edminsten, supra, 590 F.Supp. at 369 (”[T]o have a chance 
of success in electing candidates of their choice in these districts 
[majority white], black voters must rely extensively on single-shot 
voting, thereby forfeiting by practical necessity their right to 
vote for a full slate of candidates.”). The District Court 
erroneously concluded that this evidence of single-shot voting and 
the high turnout of black voters, notwithstanding their failure to 
effect the outcome of the election, was evidence of blacks* ability 
to participate in the process (RE,Op., Pgs. 30, 38-39).

(f) VOTING ALONG RACIAL LINES
Reduced perhaps to its most simplistic and clear statistical 

analysis, Plaintiffs demonstrated that in 17 elections in which 
blacks ran for the Commission over a 25 year period between 1957 to 
1982, encompassing a total of 89 black precincts and 968 white 
precincts, in every primary and general election other than the one 
in which Alston ran in 1982, a black finished first in every one of 
the black precincts-- every time. (Tr. Vol. 8, Pgs. 245), (P. Ex.
25. Table 3) (attached as Appendix 3). Indeed, this pattern has 
continued through the most recent March, 1985 election (Vol. 5, Pg. 
1203). In contrast, (1) no black candidate has ever finished first 
in any one of the white precincts. (P. Ex. 1, Pgs. 84-157); (2) in 
the white precincts, black candidates in every election did

-33-



significantly worse than every other white candidate; and when it 
really counted in terms of winning in the general rather than the 
primary, blacks fared even worse in those precincts; (Tr. Vol. 8,
Pg. 246), (P. Ex. 25, Table 3), (Tr. Vol. 12, Pg. 541); and finally, 
(3) the only non-incumbent black candidate who ever won, 
DeGraffenreidt in the 1973 general election, finished in the top 5 
in only 10% of the white precincts. (P. Ex. 25, Table S).2^

This analysis, appearing in Appendix 3 in the form of a 
reproduction of Plaintiffs' trial exhibit, addresses and satisfies 
the overwhelming weight of authority including decisions of the

24/ Even Defendants recognized that black candidates, with the 
exception of DeGraffenreidt (1975 and 1979 primary), faired 
significantly worse in the white precincts as compared to the black 
precincts. (Tr. Vol. 12, Pg. 537). See, also. (D. Ex. 13, Pg. 17). 
("The behavior of black voters is quite unlike that of whites.
Except for Alston in 1982, and DeGraffenreidt in the 1975 primary, 
blacks have always gotten the votes of more than 90% of those who turned out in heavily black precincts.").

When coupled with Defendants' recognition that black candidates 
receive the votes on the average of only 32% of those white voters 
who turn out, see, supra, Pg. 31, n. 22. (Tr.Vol. 11, Pgs. 359-360), 
the record evidence is undisputed that voters in Ft. Lauderdale have 
consistently voted upon racial lines. Of course, the City contends 
that these correlations of voting results along racial lines are the 
product not of "race consciousness," but are due to non-racial 
factors such as incumbency, campaign contributions, endorsements, etc.

-34-



Supreme Court itself, which define racially polarized voting as 
simply "[v]oting along racial lines." Rodgers v. Lodge, supra, 458
U.S. at 623; United Jewish Organization v. Carey, 430 U.S. 144, 166 
n. 24 (1977).251

(2) NON-STATISTICAL METHODS OF 
PROVING RACIAL BLOC VOTING

Additional non-statistical factors recognized by this Circuit 
further support and corroborate the statistical presentation of

____________________________ /

25/ See also, McMillan v. Escambia County, Fla., 748 F.2d 1037, 1043 
(5th Cir. 1984) ("[Vjoting has been severely polarized along racial 
lines where "[a] consistent majority of the whites who vote will 
consistently vote for the black's opponent."); McMillan v. Escambia County, Fla., supra, 638 at 1241-42 n. 6; NAACP v. Gadsden County 
School Board, 691 F.2d 978, 982-83 (11th Cir. 1982); Perkins v. City 
of West Helena, 675 F.2d 201, 213 (8th Cir. 1981) aff'd 459 U.S. 801 
(1982); Voter Information Project v. City of Baton Rouge, 612 F.2d 
208, 211 (5th Cir. 1980); and City of Rome v. United States, 472 
F.Supp. 221, 226 (D.D.C. 1979) aff'd 446 U.S. 156 (1980).

Moreover, these precinct analyses, based upon undisputed factual 
evidence, reflect additional error of the trial court. First, the 
Court ignored 13 years (1957-1969) of 9 black candidacies' 
unsuccessful efforts to get elected to City office. The Court 
viewed these pre-1971 black candidates as merely "testing of the 
waters," (RE,Op., Pgs. 26, 31), and not serious efforts, (Ibid.).
The viability of these pre-1971 candidacies is obvious by a mere 
glance of the precinct returns. These candidates finished first in 
all of the black precincts, in every election. They were supported 
in the black community and consistently rejected in the white 
community. Thus, these black candidates'--in precinct after 
precinct and in election after election--ability to attract votes 
was not a function of their viability or lack of viability but 
solely based upon the race of the voters. Simply, blacks voted for 
the black candidates. Whites did not. Second. and more 
fundamentally, these results serve to corroborate and underscore the 
critical issue: voters cast their votes upon racial lines in Ft.
Lauderdale. This is precisely what has occurred between 1957 and 
1971 and nothing has changed, other than the aberrational experience 
of a single black candidate, Mr. DeGraffenreidt, in the 1975-1977 
elections, through the present. See, Vol. 5, Pg. 1200 (Same pattern 
in 1985 election).

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polarization: (i) past discrimination in general, supra. Pgs.
20-27, United States v. Marengo County Commission, supra. 731 F.2d 
at 1567 n. 34; (ii) large districts, infra. Pg. 57, United States v. 
Marengo County Commission, supra; (iii) the lack of residential 
geographic subdistricts, infra. Pg. 56, United States v. Marengo 
County Commission, supra, and (iv) the consistent lack of success of 
qualified candidates--with the exception of Andrew DeGraffenreidt-- 
over a 28 year period, infra. Pgs. 63-66,United States v. Marengo 
County Commission, supra.

B. THE TRIAL COURT ERRONEOUSLY DISREGARDED PLAINTIFFS' POLARIZATION EVIDENCE
(1) THE BI-VARIATE ANALYSIS WAS DISREGARDED FOR IMPROPER REASONS___________________

The Trial Court disregarded Plaintiffs' bivariate regression 
analysis essentially for two reasons: (1) that it focuses upon the
"vote totals rather than voters" (RE,Op. Pg. 40), which the Court 
determined was a "methodology more suited for head-to-head 
elections" rather than Ft. Lauderdale's system where each voter can 
cast five votes dispersed over a field of candidates; and (2) that 
the bivariate analysis examined only race correlations between voters 
and candidates in contrast to the City's multivariate regressions 
which explained various non-racial factors, (Ibid.. Pgs. 39-42).
This later issue is discussed at length, see, supra. Pgs. 40-45.

The Court's disregard of the bivariate regression as measuring 
"vote totals rather than voters" is simply wrong as it is a 
mischaracterization of the record. Plaintiffs' bivariate analyses 
conform not only to the law of this Circuit, but indeed focus upon

-36-



the willingness of a single voter, not the total number of votes 
that an individual may cast, to support a particular candidate (Tr. 
Vol- 8, Pgs. 251-256), (P. Ex. 25, Table 2, Column 1). See, 
Appendix 2.2 * * * *̂7

(2) THE POLARIZATION INDEX WAS
DISREGARDED FOR IMPROPER REASONS

In adhering precisely to the ’’racial polarization index" 
standard identified by this Circuit in United States v. Dallas 
County Comm’n, supra, 739 F.2d at 1535, Plaintiffs calculated the 
percentage of votes cast in the black precincts for a black 
candidate and then subtracted the percentage of the vote cast for 
the same individual in the white precincts.277 (P. Ex. 38)

The polarization index addresses the incidence or frequency 
which a single black voter will cast at least one vote for a black

26/ While Plaintiffs also submitted additional bivariate analyses
employing considerations of the turnout ratio (i.e., the number of
votes cast in relation to the number of votes that could have been
cast) (P. Ex. 25, Table 2, Column 2), (Tr. Vol. 8, Pgs. 256, 258)
and did review the phenomena of "vote totals vs. voters" in general 
discussion in exploring the various dynamics of voting behavior in 
Ft. Lauderdale since, after all, a candidate is primarily concerned 
with receiving more votes than his opponents, such evidence merely 
supplemented and was in addition to the various statistical 
polarization analyses focusing upon the political behavior of a 
single voter rather than vote totals. Indeed, the Defendants 
themselves submitted voting analyses which also indicated reference 
to total votes cast. See, e.g., D.Ex. 13, Pgs. 25-36, 37-39.
27/ As discussed, supra, Pg. 31, n. 22, in all elections analyzed 
between 1971-1982, 86% of black voters cast at least one vote for a 
black candidate while only 32% of all white voters cast a vote for 
the black candidate, thus yielding a polarization index of 53. 
Compare; United States v. Dallas County Comm'n, supra, (Index of 40 
or higher is significant in proving racial polarization); Jones v. City of Lubbock, 727 F.2d 364, 380 (5th Cir. 1984) (Finding of polarization with index of 52).

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candidate which is then subtracted from the frequency with which a
single white voter casts a single vote for that black candidate.
Simply, the index measures the behavior of a single voter and not
the total votes cast by that voter. Here again, Judge Roettger
misconstrued the undisputed record evidence of this accepted racial

28 /polarization index.
The Trial Judge then compounded his error by presenting three

scenarios in order to demonstrate, in his belief, the
inappropriateness of utilizing the polarization index in analyzing
Ft. Lauderdale elections (RE,Op. Pgs. 42-44). In each of the three
hypothetical situations, the Court injected models where the ’’total
votes cast" were utilized in calculating the index, thus skewing the

29 /hypothetical result. As stated, these hypothetical "worst case

28/ Indeed, the numerical data utilized to prepare the polarization 
index came directly from Defendants' own expert's report (D. Ex. 13, 
Pgs. 25-36, 37-39), (Tr. Vol. 12, Pgs. 512-517) and contrary to 
Judge Roettger's observation, "Dr. Bullock sets forth three reasons 
why Professor de la Garza’s theory is wrong" (RE,Op., Pg. 42), the 
polarization index (P. Ex. 38) was not even presented by Plaintiffs' 
expert Dr. de la Garza, but rather, through cross examination of 
Defendants' expert, Dr. Bullock (Tr. Vol. 12, Pgs. 512-517).
29/ As an example, in the first hypothetical, Judge Roettger presumed 
that a white voter might cast one vote to DeGraffenreidt, the only 
black candidate, and then cast four other votes for white candidates. 
Notwithstanding the fact that "the white voter could not be any more 
favorably disposed toward a black candidate than to cast a vote for 
that black candidate," (RE,Op. Pg. 43), Dr. de la Garza, under Judge 
Roettger's view, would find racial polarization through an index of 80.

To the contrary, under Judge Roettger's hypothetical model, 
Plaintiffs--consistent with measuring the behavior of a single 
voter--would in fact find no polarization since the score would be 0.

Each of the other two hypothetical models share the same error.
They assume the measurement of the polarization index based upon the 
total votes cast, in contrast to Plaintiffs' polarization index 
analysis contained in Plaintiffs' Exhibit 38 in which we measured only
the frequency that a voter cast a vote for a black candidate.

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models” are irrelevant to Plaintiffs' presentation of the
polarization index since we properly applied the index to measuring
the electoral behavior of each single voter and not to the total 

30/votes cast.

(3) PLAINTIFFS' OTHER STATISTICAL POLARIZATION 
ANALYSES WERE ERRONEOUSLY REJECTED

Plaintiffs' other statistical polarization analyses involving:
(1) support for winning candidates, supra, Pgs. 31-32; (2) blacks'
impact on the outcome of elections, supra, Pg. 32; (3) average
number of votes cast, supra, Pgs. 32-33; and (4) voting along racial
lines (through precinct analysis), supra, Pgs. 33-35, were never

31 /discussed nor analyzed by the Court.

30/ For the convenience of the Court, a duplicate of Plaintiffs' 
Exhibit 38 has been lodged in our Brief as Appendix 4.

31/ Finally, the trial court misapplied the so-called "Loewen 
standard” of polarization which was identified for the first time 
during the City's evidentiary presentation as a polarization 
standard in which the "[Proportion of whites voting white and 
blacks voting black” is added together and ”[I]f the sum of those 
two figures exceeded 160 then you would say that established racial 
polarization," (Tr. Vol. 11, Pgs. 366-367; Tr. Vol. 12, Pgs. 
510-511).

After the ”160" Loewen standard was identified by the City's own 
expert, it was then artificially reconstructed by engrafting a new 
requirement that one must also demonstrate that fewer than 20 
percent of the voters in all-white precincts cast a ballot for a 
black candidate (Tr. Vol. 11, Pg. 368). This ”20%" requirement was 
added to the "160” rule presumably by counsel for the City, since 
their expert did not agree with it (Ibid, at Pg. 367) (”Q: You 
don't necessarily agree with an 80/20 split? A: I do not.”).
Application of this additional hurdle of the ”20%” requirement 
beyond the "160" rule led to the trial court's conclusion that 
”[0]nly two of the 14 Fort Lauderdale elections has a black

(Footnote continued to next page)

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C. MULTI-VARIATE REGRESSION ANALYSIS
The parties in this case agree that black candidates are the 

consistent and overwhelming choice of black voters, whether measured, 
as Plaintiffs have done, over a 28 year period (1957-1985) or over 
an 11 year period (1971-1982), as presented by Defendants. Addition­
ally, the parties are in agreement that white voters consistently 
offer significantly less support to the same black candidate. See, 
supra, Pg. 31, n. 22. Thus while the parties might disagree as to 
"what degree is necessary" to show severe voting along racial lines, 
Rodgers v. Lodge, supra, 458 U.S. at 623, the evidence is unmistak­
able that the Ft. Lauderdale electorate--whether measured since 1957 
or 1971--does vote along racial lines.

The disagreement raised in this appeal however, does not focus 
upon whether the Ft. Lauderdale electorate in city commission elect­
ions votes upon racial lines. Rather, the City has advanced an ap­
proach which the Trial Court accepted, referred to as a "multi­
variate analysis" which rejects consideration of voting along racial 
lines and the extent to which it exists, and instead examines 
whether a series of candidate characteristic variables which Defen­
dants have identified (incumbency, endorsements, campaign contribu­
tions, etc.) affect the total number of votes a candidate receives.

(Footnote continued from previous page)
candidate (Alston, in both instances) received less than 20% of the 
white vote; only those two races would indicate racial polarization 
under the Loewen standard," (RE,Op., Pg. 41).

Moreover, even if the "Loewen standard" were a measurement used to 
gauge polarization--Plaintiffs can find no reported decisions which so 
indicate--when the "160" Loewen sum was applied accurately, 6 of the 
14 elections studied by the City satisfied this requirement (Tr. Vol. 
12, Pg. 511), (P. Ex. 37) and 12 of the 14 elections met a "140" sum.

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The issue surrounding the parties' vying racial polarization 
presentations is thus not, as the District Court viewed, "[A] battle 
of expert witnesses" (RE,Op., Pg. 39). Rather, it is a conflict of 
two concepts, with entirely different inquiries. Plaintiffs, 
consistent with this Circuit's standards, analyze through several 
statistical means the correlation of the race of the voters with the 
race of the candidate in addressing the ultimate issue of whether 
there exists "voting along racial lines." Defendants address the 
issue of whether factors they have identified affect the total 
number of votes a candidate receives.

The trial court's findings and legal standards are infected by 
an erroneous legal standard and are wrong for the following 
reasons. First, the multivariate regression accepted by the Trial 
Court has been specifically rejected by the Supreme Court in voter 
dilution litigation and is otherwise inconsistent with Congress' 
mandate in amending Section 2 of the Voting Rights Act. Second, the 
multivariate analysis as used in this case is fundamentally unsound 
for at least four reasons: (1) it produces widely varying results
based upon the subjective judgments of which data is included or 
excluded; (2) it has substantial methodological "quantification" 
flaws as to those independent variables that were used in the 
multivariate runs; (3) the independent variables used in the 
regression are not independent, they are in fact "proxies" for race; 
and (4) the conclusions drawn from the computer runs are not 
supported by and do not address the actual events and realities of 
Ft. Lauderdale politics. Our discussion follows:

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(1) THE MULTIVARIATE REGRESSION WAS 
ERRONEOUSLY UTILIZED IN THIS 
CASE SINCE IT HAS BEEN SPECIFICALLY 
REJECTED BY THE SUPREME COURT AND 
IS INCONSISTENT WITH CONGRESS'
MANDATE IN AMENDING THE VOTING RIGHTS ACT

The District Court relied erroneously on the Defendants' 
expert's multiple regression analysis for its conclusion that there 
was "no racial polarization showing a violation of the Voting Rights 
Act" (RE, Op., Pg. 47). Such a conclusion is inconsistent with both 
the legislative history of the amendments to the Voting Rights Act 
and the cases interpreting the Act, both before and after the 
amendments.

(a) THE SUPREME COURT HAS REJECTED 
UTILIZATION OF THE MULTIPLE 
REGRESSION ANALYSIS___________

The Supreme Court in Mississippi Republican Executive Committee
v. Brooks, ___U.S.____, 83 L.Ed.2d 343 (1984), rejected a similar
argument that bivariate regression should be replaced in vote 
dilution cases by multivariate regression when it summarily affirmed 
the Three Judge Court's holding in Jordan v. Winter, Civil No. GC 
82-80-WK-0 (N.D. Miss. April 16, 1984) (Three Judge court), Slip.
Op., Pg. 11, of a "high degree of racially polarized voting" based 
on the bivariate regression performed by plaintiffs' expert 
witness. On direct appeal to the Supreme Court, the appellants, 
quoting Judge Higginbotham's special concurrence in Jones v. City of 
Lubbock, 730 F.2d 233, 235 (5th Cir. 1984) (denial of rehearing and 
rehearing en banc), argued that "[t]he use of a regression analysis 
which correlates only racial make-up of the precinct with race of

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the candidates 'ignores the reality that race...may mask a host of
other explanatory variables.'” See. Jurisdictional Statement in
Mississippi Republican Executive Committee v. Brooks. ___U.S.___, 83
L.Ed.2d 343 (1984), at 12-13.

The Court's summary affirmance is dispositive of this matter.
The Supreme Court has ruled that summary affirmances "reject the 
specific challenges presented in the statement of jurisdiction." 
Handel v. Bradley. 432 U.S. 173, 176 (1977); Hicks v. Miranda. 422 
U.S. 332, 344 (1975); Howell v. Jones. 516 F.2d 53, 56 (5th Cir. 
1985). See also, C. Wright, Law of Federal Courts, 495 (2d Ed. 1970) 
("Summary disposition of an appeal, however, either by affirmance or 
by dismissal for want of a substantial federal question, is a dispo­
sition on the merits."). Therefore, the Supreme Court has rejected 
the Higginbotham objections to the use of bivariate analysis. See 
also. Gingles v. Edminsten, 590 F.Supp. 345, 368 n. 32 (E.D. N.C. 
1984) (Three Judge Court) (Three Judge Court rejected the objections 
of defendant's expert witness to bivariate regression analysis, 
objections which parallel those articulated by Judge Higginbotham).

(b) INQUIRY AS TO THE RACIAL MOTIVE OF
THE VOTER IS INCONSISTENT WITH CONGRESS'
MANDATE IN AMENDING THE VOTING RIGHTS ACT

At the very core of Judge Roettger's error is his rejection of 
polarization evidence reflecting a persistent high correlation 
between race and voting--demonstrated through various accepted 
polarization standards is the Court's acceptance, through the 
application of the City's multivariate analysis, of proof that the 
white electorate in Ft. Lauderdale is not voting for black
candidates for reasons which they contend are not related to race.

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Indeed, in an attempt to aviod the proof of persistent voting along 
•'racial lines" the City of Ft. Lauderdale argued below that racial 
polarization is "not simply a determination of how voters vote, but 
whether such voting is race-conscious." See, Defendants' Proposed 
Findings of Law & Fact, No. 156, (Vol. 5, Pg. 1012).That erroneous 
view both underlies and undermines the District Court's conclusions 
in this case in its adoption of a standard for determining polarized 
voting and its analysis of the voting results.

Under the Voting Rights Act, the result--whether the Ft.
Lauderdale electorate does vote along racial lines and the extent to
which it does, is the appropriate inquiry; not the motive, purpose
or intent or each individual white voter. The reincarnation of an
intent requirement in voting dilution cases by requiring Plaintiffs
to attribute racial bias or motive to the white electorate in
addition to proving voting along racial lines, would defect the
legislative purpose of Congress in enacting the 1982 amendment to

12/Section 2 of the Voting Rights Act to eliminate proof of racial 
purpose, intent, and motivation.

Of course, the trial court's reliance on the multivariate 
regression analysis in this lawsuit, stemming from Judge 
Higginbotham's criticism of exclusive reliance on Pearson 
correlation coefficients has merit, particularly when white voters

32/ Congress eliminated the intent requirement in Section 2 for 
three basic reasons: (1) difficult, if not impossible,
psychoanalytic task of proving race-consciousness in the voting 
electorate; (2) the inordinately onerous burden that this puts on 
plaintiffs in terms of litigation expenses; and (3) the divisiveness 
of the racial inquiry, Pg. 36, Senate Report.

(Footnote continued to next page)
-44-



vote at a rate of more than 50% for the minority choice candidate.
Jones—v._City of Lubbock, supra, 730 F.2d at 235. However, the
courts have commonly dealt with this problem generally by looking to 
other date, such as the ’’polarization index” showing the magnitude 
of the disparity in support of black candidates between the black 
and white communities, United States v. Dallas County Commissioners, 
supra, 739 F.2d at 1535 n. 4; Jones v. City of Lubbock, supra, 727 
F.2d at 380, and resolving whether the disparity is so large that 
the impact of the black vote is insufficient to alter the election 
outcome at all.

These concerns have been satisfied--based upon the controlling 
standards of this Court--in Plaintiffs' polarization presentation.

2. THE DISTRICT COURT'S ADOPTION OF
DEFENDANTS’ MULTIVARIATE ANALYSIS 
IGNORES THE METHODOLOGICAL PROBLEMS RAISED BY THIS APPROACH___________

The use of multivariate, rather than bivariate regression, as 
adopted by the District Court in this case, improperly deviates from 
the type of statistical evidence sanctioned and relied upon by the 
courts for the past decade. Moreover, the insistence that variables 
other than race be correlated with election results in voter

(Footnote continued from previous page)
The trial court’s application of the multivariate in this case, 

therefore directly conflicts with the purposes of the 97th Congress in enacting the Section 2 amendment: It requires voting rights
Plaintiffs to prove what was in the minds of the voters; it imposes 
an immensely expensive burden of evidentiary proof on plaintiffs, 
and it is divisive because it requires plaintiffs to brand the voters as racists in order to win a Section 2 case.

-45-



polarization studies, shifts the focus from whether there is 
polarization to why a candidate succeeds, and begins a 
methodological spiral that confuses and complicates the ultimate 
findings rather than offer clarity.

(a) THE PROBLEM OF WHICH FACTORS 
ARE INCLUDED - OR - EXCLUDED

If the absence of other possible explanatory variables is 
sufficient to undermine the acceptability of a bivariate regression, 
then it must also undermine a multivariate analysis that does not 
account for all possible explanatory variables. Widely varying 
results from the multivariate analysis may be obtained based on the 
subjective judgments as to which data are to be included or 
excluded.

33/ For instance, while political scientists - including Defendants' expert, Dr. Bullock (Tr.Vol. 12, Pgs. 433-434) - agree that other 
factors than those utilized by the City can significantly effect 
voting behavior, these factors or "independent variables" were 
ignored in the analysis.

They include: (i) qualifications of the candidate, including 
education (Ibid., Pg. 434); (ii) past involvement or exposure in the 
political process, such as service on City boards or committees 
(Ibid., Pg. 437); (iii) support or endorsements from slating 
organizations or associations, for example, in Fort Lauderdale, the 
Broward Citizens' Committee (Ibid, Pgs. 437-438), (Tr.Vol. 11, Pg. 
258, Dep. of Shaw, Pgs. 11-20); (Tr, Vol. 11, Pgs. 281-283); (iv) 
how well a candidate finishes in the primary beyond meeting the 
threshold of qualifying for the general election; e.g„, his position 
between 1st and 10th place (Tr., Vol. 12, Pgs. 439-444); (v) the 
candidate's name recognition as it relates to the racial or ethnic 
identity as a cue that influences voting behavior (Ibid., Pgs. 
448-450); (vi) the general political climate of the times (Ibid., 
Pgs. 451-452); (vii) the varying socio-economic characteristics of 
the electorate which influence political behavior from precinct-to- 
precinct or within areas of the City. (Ibid., Pgs. 453-455); and

(Footnote continued to next page)

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(b) THE PROBLEM OF QUANTIFICATION
In order to perform any type of regression analysis, the 

variables--factors which are being measured--have to be quantified, 
that is, expressed in numbers. Thus, the typical bivariate 
regression analysis for racially polarized voting measures the 
relationship between the percentage of black or white voting 
precincts (using racial percentages of population, voting age 
population or, where available, as in this case registered voters) 
and the percentage of the vote for black or white candidates. This 
conforms to Plaintiffs' bivariate regression, which is the standard 
analysis of this kind.

However, in the context of the multivariate regression, many
independent variables that affect political behavior, see, supra,
Pg. 46, n. 33, are incapable of quantification (i.e., qualifications,
past exposure to the political process, support from slating

34/organizations, etc.).

(Footnote continued from previous page)
(viii) the number of incumbents choosing not to run in an election, 
a consideration which directly increases the opportunity of success 
for a non-incumbent. (Ibid-, Pgs. 485-486).
34/ Significant methodological flaws exist as to those independent 
variables utilized in the City's multivariate analysis: (i) a total 
dollar figure with an inflation index utilized to measure campaign 
contributions included only monetary donations (Tr., Vol. 12, Pgs. 
460-461). However, non-monetary, in-kind campaign contributions 
from the black community played a powerful and valuable role in the 
black candidates' campaigns (Tr., Vol. 7, Pgs. 53-54), (Tr., Vol. 8, 
Pgs. 336-338; Ex. 34, Pg. 26). These black candidates, whose 
natural constituency, the black community, has limited financial 
resources organized other forms of campaign contributions which were 
not translated into a monetary figure in the multivariate computer 
runs. (Tr., Vol. 13, Pgs. 463-466); (ii) a code for incumbency was 
factored into the analysis, but there was no differentiation in the

(Footnote continued to next page)

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(c) THE PROBLEM OF MULTICOLLINEARITY
An even more fundamental problem however is the assumption in 

regression analysis that the variables to be tested are independent 
of each other. Using variables which are interrelated seriously 
compromises the integrity of the regression analysis. The basic 
concept of regression relies on the ability to hold constant the 
effects caused by the other independent variables, so that the 
isolated effect on the dependent variable of each independent 
variable can be determined. This is impossible when a change in one 
independent variable is related to a change in another. In that 
case, it is impossible to "hold the other variable constant while 
manipulating the one that interests the researcher." This gives 
rise to the problem called multicollinearity. See, D. Baldus & J. 
Cole, Statistical Proof of Discrimination, Pgs. 275-76 (1980).

There are many ways in which a variable may be either extraneous 
or in some way interrelated with an independent variable such as 
race, and the problem has been extensively raised in the context of 
employment discrimination litigation. Ibid., Pg. 73.

Essentially, then a variable poses a bias problem when it is in 
some way related to the primary variable that one is seeking to 
test; when it incorporates the act of discrimination for which we

(Footnote continued from previous page)
value assigned to account for past number of terms served or the 
incumbent’s position, such as a mayor or commissioner. Each of 
those later factors would affect name recognition and reflect other 
built-in advantages derived from various incumbent positions.
(Ibid., 472-473); (iii) endorsements were factored into a code and 
utilized in the analysis; however, no distinction between either the 
Fort Lauderdale News or Miami Herald was made to account for 
circulation differences that were likely within the City of Fort 
Lauderdale or between the black and white communities. (Ibid, Pgs. 
487-488).

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are testing; or when it is simply irrelevant. In short, the 
multicollinearity problem arises when other variables which are, in 
some sense, "proxies" for race are introduced. These proxies in 
effect mask the impact of race by incorporating some of the effect 
of racial differences into their own correlation coefficient. If 
enough of such variables are introduced, much of the race variable's 
explanatory power is deceptively masked and incorporated as part of 
the explanatory power attributed to the related variables.35^

35/A clear exposition of this phenomenon and rejection of the 
attempt to use multivariate regression to explain away established 
racial disparity was provided by the Fifth Circuit in James v. 
Stockham Valve Co.. 559 F.2d 310, 332 (5th Cir. 1977):

Regression analysis is a statistical method that 
permits analysis of a group of variables simulta­
neously as part of an attempt to explain a particular 
phenomenon, such as earnings disparities between 
blacks and whites. The method attempts to isolate the 
effects of various factors on the phenomenon. Dr. 
Gwartney's analysis is based on the assumption that 
productivity factors, not discrimination, may explain the wage differences between Stockham's black and 
white employees. The productivity factors Dr.
Gwartney employed were years of schooling, achieve­
ment, seniority, skill level, outside craft experi­
ence, outside operative experience, absenteeism, and 
merit ratings.

The rub comes with how these factors were defined 
in Dr. Gwartney's study. As the plaintiffs point out, 
the critical factors of "skill level" and "merit 
rating" were defined in such a way as to incorporate 
discrimination. A regression analysis defining "skill 
level" in that way thus may confirm the existence of 
employment discrimination practices that result in 
higher earnings for whites.

Dr. Gwartney used the merit ratings of Stockham 
supervisors, who are overwhelmingly white, for his 
"merit rating" factor; blacks average 71.3 in these 
ratings while whites average 79.3. If there is 
racial bias in the subjective evaluations of white 
supervisors, then that bias will be injected into Dr. 
Gwartney's earnings analysis.
(Footnote continued to next page)

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This problem is clearly presented by many of the variables 
introduced into the multivariate regression relied upon by the 
District Court in this case. Such variables are highly associated 
and closely entwined with the role of race in the election process. 
The multivariate analysis, in this respect, serves to cleanse 
racially divided voting patterns of racial content.

((D) INCUMBENCY
For example, although incumbency is viewed as a powerful factor 

in achieving success in Ft. Lauderdale Commission elections (RE,Op., 
Pg. 27) (Citing incumbency as one of the "key factors for a frame of 
reference") its use as a variable in a multivariate regression 
analysis in the context of elections in Ft. Lauderdale, masks 
coincident racial effects, and thus unacceptably distorts the 
correlation attributable to race. In fact, except for the unique 
circumstances of Andrew DeGraffenreidt's incumbency campaigns of 
1975 and 1977, incumbency has been and continues to be a factor 
limited solely to white candidates. Voting for a white candidate in 
preference to a black candidate has thus virtually always coincided 
with voting for an incumbent over a non-incumbent.

(Footnote continued from previous page)
See also, Valentino v. United States Postal Service, 674 F.2d 56, 72 
n. 30 (1982) (D.C. Cir. 1982); Segar v. Smith, 738 F.2d 1249, 1276 
(D.C. Cir. 1984) (Use of certain independent variables "may well 
serve as a veil of seeming legitimacy behind which illegal 
discrimination is operating. If so, measurement of the relation of 
such a factor to an observed disparity would simply amount to a 
measure of the amount of discrimination operating through 
application of the factor."); Vuvanich v. Republic Nat. Bank of 
Dallas, 505 F.Supp. 224, 277 (N.D. Tex. 1980) (Higginbotham, J.) 
vacated on other grounds 723 F.2d 1,195 (5th Cir. 1984). See 
generally, Finkelstein, The Judicial Reception of Multiple 
Regression Studies in Race and Sex Discrimination Cases, 80 Columbia 
L. Rev. 737, 738-742 (1980).

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Given the 74 year history of Ft. Lauderdale, with blacks running 
for the City Commission since 1957, and only one successful black 
candidate, racial correlations with voting returns will inevitably 
coincide with incumbency correlations with the same returns. The 
mathematical correlations between incumbency and the election 
results incorporate the effect of race, masking the full extent to 
which race, measured separately, serves as an explanatory variable. 
That is, since the multicollinearity between race and incumbency is 
so strong in this case, an inordinately large portion of the 
explanatory power of the race variable is siphoned off by the 
incumbency variable. Simply, the use of such a variable as a 
measure of vote polarization under the circumstances of this case, 
is legally unacceptable since it effectively validates a phenomena 
which is a clear hinderance to the political success of blacks; 
distorts the meaning of the race-voting correlation; and changes the 
focus of the vote polarization inquiry to a determination of why 
candidates receive attitional votes.

((2)) CAMPAIGN CONTRIBUTIONS 
The use of campaign contributions as a variable in the 

Defendants' multivariate regression presents similar problems since, 
as with incumbency, the amount a candidate spends is also a race 
related variable. In Ft. Lauderdale, black candidates have 
consistently received most, if not all, of their contributions from 
the black community (Tr.Vol. 8, Pgs. 248-249); (Tr.Vol. 7, Pgs. 65, 
79), (Tr.Vol. 8, Pgs. 336-338), Ex. 34, Pg. 11), a natural result of 
their dependence on the isolated and segregated black community of 
Ft. Lauderdale, supra, Pg. 4, which is poorer, smaller, and has less

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economic resources than its white counterpart, supra, Pg. 5, n. 6.
A campaign waged under such circumstances is inevitably highly 
financially disadvantaged.

Thus a high statistical correlation between contributions and 
election outcome can in part be explained as part of the coincident 
correlation between race and election outcome. This is particularly 
true where, as here, by virtue of a long history of discrimination 
blacks are less likely than whites to be able to raise the money 
necessary to run on an at-large basis.

*  * *  *

Consistently, the variables used by the Defendants are directly 
related to race, and in effect provide evidence of the lingering 
effects of discrimination, which under the White-Zimmer approach 
embodied in amended Section 2, provide further evidence of vote 
dilution.

36/ Not only are the factors of incumbency and campaign 
contributions directly related to race, but there exists a 
statistically significant association of each of the independent 
variables, as well as a third variable - endorsements (Tr., Vol. 12, 
Pgs. 476-477) (Statistically significant relationship at .334 level 
between incumbency and campaign expenditures); (Ibid., Pgs. 478-480) 
(Even greater statistical relationship at .425 level between 
incumbency and endorsements).

Thus, where there exists a statistically significant, although 
not necessarily perfect, correlation of three of the variables to 
each other it becomes difficult to disentangle their separate 
effects on the dependent variable. They simply are not 
"independent" variables. Moreover, these variables, analyzed in an 
artificially isolated manner, cannot be compartmentized from and 
indeed are directly associated with race itself.

-52-



(3) THE RESULTS OF THE MULTI-VARIATE
ANALYSIS DO NOT REFLECT THE "ACTUAL 
EVENTS AND REALITIES" OF FT.
LAUDERDALE POLITICS______________ _

The purpose of the application of the multivariate analysis, if 
we understand correctly, was to add additional dimension and 
corroboration to this Court's standard polarization analysis-the 
bivariate regression, racial polarization index, etc.377 
As discussed, not only did the Trial Court err in rejecting a decade 
of standard polarization tests applied by Plaintiffs in this case, 
but additionally and fundamentally. Judge Roettger's quest to test 
"actual events and realities," (RE,Op., Pg. 39), through application 
of the multivariate and additional analysis of the

37/ In supplementing this Circuit's standard polarization tests, 
utilization of the multivariate apparently has its genesis in voter dilution litigation from the special concurrence of Judge 
Higginbotham in Jones v. City of Lubbock. 730 F.2d 233, 235 (5th 
Cir. 1984) (denial of rehearing and rehearing en banc), which cautioned:

[T]here is a risk that a seemingly polarized 
voting pattern in fact is only the presence of 
mathematical correspondence of race to loss 
inevitable in such defeats of minority 
candidates...More complex regression study or 
multivariate mathematical inquiry will often be 
essential to gauge the explanatory power of the 
variables necessarily present in a political race.
Nor will math models always furnish an answer. A 
healthy case of common sense and intuitive 
assessment remain powerful components to this 
critical factual inquiry.

It is this language which was relied upon by the Trial Court, 
(RE, Op., Pg. 48), in applying the multivariate in this litigation.

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Defendants, lead to results that in fact bear no resemblance to the 
reality of Ft. Lauderdale politics.

38/ For instance, (1) under the multivariate model for electoral 
success, Defendants have determined that candidates run better if, 
among other factors, they are female. (Tr.Vol. 11, Pg. 387), (D.Ex. 
13, Pg. 58). However, the political reality of Fort Lauderdale is 
simply that only one female--current Commissioner Virginia 
Young--has ever been elected to City office in the past 45 years. 
(P.Ex. 5) (Genevieve Pynchon was elected in 1937.); (2) under other 
analysis, Andrew DeGraffenreidt, the single black elected in Fort 
Lauderdale's entire history, erroneously is counted as "three 
successful Black candidates" (Tr., Vol. 12, Pg. 423) ignoring his 
obvious uniqueness in city politics as well as his own personal 
unique characteristics resulting in his success; (3) the fact that 
an incumbent--or even 2 incumbents as in the case of the initial 
DeGraffenreidt successful election in 1973--chose not to run for 
re-election was never considered as a factor in the multivariate 
analysis. (Tr., Vol. 12, Pgs. 485-486). Since incumbency was 
recognized by the Trial Court as a critical factor in a candidate's 
success (RE,Op., Pgs. 27, 60), the absence of this consideration 
simply defies the political reality of one of the explanations for 
the only successful non-incumbent black candidacy in the city history. (Tr., Vol. 7, Pgs. 61-62), (Tr., Vol. 8, Pg. 234); (4) in 
the multivariate analysis, endorsements are considered a significant factor of candidate success. (Tr., Vol. 11, Pg. 384), (D.Ex. 13, Pg. 
58). However, black candidates have received disproportionately 
more endorsements (Tr., Vol. 12, Pgs. 490-491) and yet the endorsed 
black candidates - Kennedy (Ibid.), Hastings (Ibid.), (Tr.Vol. 8, 
Pgs. 336-338, Ex. 34, Pgs. 34-35, 59-60), DeGraffenreidt in 1979 
(Tr., Vol. 12, Pg. 555)- continue to lose; (5) Defendants* 
statistical analysis of the success ratio of black candidates (D.Ex. 
13, Tables 1 and 2) ignored 9 unsuccessful black candidates who had 
run in more than one-half of the elections in which black candidates 
ran and lost--all prior to 1971. Here the Trial Court literally 
ignored the efforts of 9 black unsuccessful candidacies spanning a 
13 year period (1957-1971) in concluding that these individuals were 
merely "testing the waters," (RE,Op., Pg. 31), see, infra, Pgs. 
63-64, notwithstanding their undisputed success in garnering enough 
votes in the black community to have finished first in each of the 
black precincts in every election. . See, supra, Pgs. 33-34; (6) the Defendants' model for measuring electoral success (Tr., Vol. 11,
Pgs. 384-385), ("[M]ore likely to win if you are an incumbent, you 
spend more money, if the newspaper endorses you, and when white 
turnout is lower."), (D.Ex. 13, Pgs. 57-60) is virtually wrenched 
from the underlying factors which explain the most important 
election raised in this lawsuit--the DeGraffenreidt 1973 victory.
In that election--so important because it is the first and only time 
a non-incumbent black has ever won--the factors which contributed

(Footnote continued to next page)

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3. STRUCTURE OF THE ELECTION SYSTEM
In reviewing this factor, the Trial Court concluded that "the 

City has not had a majority vote requirement or anti-single-shot 
provisions or any other voting practices or procedures traditionally 
used to enhance the opportunity for discrimination against minority 
groups or its black citizens" (RE,Op., Pgs. 48-49). The Court based 
this conclusion apparently upon the notion that the City 
historically never intentionally created enhancement devices 
designed to impede black political participation (RE,Op., Pg. 49) 
("The City has used at-large elections from the very beginning of

(Footnote continued from previous page)
to his victory, ignored in the multivariate success model, include: 
(i) a City record turnout of 41.8% of the black voters (P.Ex. 25A), 
supra, Pg. 10; (ii) the candidate, aided by a non-racially 
identifiable last name, who had actively pursued a campaign strategy 
in which he concealed his race from many of the white electorate, 
supra, Pg. 9; (iii) a black electorate which forfeited an average of 
3.3 of their 5 votes in order to elect a single candidate of their 
choice (P.Ex. 25, Table 1) supra, Pg. 10; (iv) an election in which two white incumbents had chosen not to run (Tr.Vol. 7, Pgs. 61-62) 
(Tr.Vol. 8, Pg. 234), supra, Pg. 9; (v) a primary election in which 
DeGraffenreidt --virtually unknown in the white community--was able 
to get "lost" among 30 other candidates (Tr.Vol. 7, Pgs. 56-57), 
(Tr.Vol. 8, Pg. 234) supra, Pgs. 8-9; (8) the fact that the City’s 
expert concluded that race plays an insignificant role in city 
elections notwithstanding: (i) that only one black citizen has ever 
won in the context of 19 other unsuccessful black candidacies 
spanning two and one-half decades (P.Ex. 8, Fact 1); (ii) that 
racial separation, isolation, and discrimination has and continues 
to play a major role in the life of black citizens in Fort 
Lauderdale in the context of ((a)) residential segregation, supra, 
Pg- 4; ((b)) municipal employment practices, supra, Pg. 24; ((c)) 
educational opportunities, supra, Pgs. 24-26; ((d)) blacks’ 
participation in the very threshold of the political process, membership on policy-making City boards and committees, supra, Pg. 
23; ((e)) and public housing facilities, supra, Pg. 24; and (9) a 
finding by Dr. Bullock that is in apparent conflict with the highest 
ranking current city official, Mayor Dressier, who candidly 
recognized that a single-member district system would "highly 
likely" result in a "black representative on the Commission" (Tr., 
Vol. 11, Pg. 294).

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the City, and it was not something that was incorporated to evade or 
circumvent the law of the land.") and because "at large elections 
are not prohibited per se by the Voting Rights Act" (Ibid.)

The conclusion that there exist no voting practices or 
procedures in Ft. Lauderale that may enhance the opportunity for 
discrimination against black citizens is legally erroneous because 
Judge Roettger disregards the "lack of any residency requirement" in 
the election system and the size of Ft. Lauderdale's population.

A. LACK OF RESIDENCY REQUIREMENT 
A lack of a residency requirement, particularly as in this case, 

which results in an "uneven geographical spread of representation", 
(P.Ex. 29) allowing residents of the white areas to dominate City 
office, Rodgers v. Lodge, 458 U.S. 613, 627 (1982), constitutes a 
significant element supporting dilution, Ibid, at 627 ("Because

39/In the past 50 year period, only 5 (4.87<>) of the 105 Commissioners have resided in the northwest quadrant of the City 
where virtually all blacks reside (P.Ex. 9), (P.Ex. 29) (Hap).

The fact that Commissioners have not lived in or near the black 
community diminishes black citizens' participation in the political 
process since blacks are denied informal social contacts with their 
representatives who do not have first hand knowledge of their 
problems (Tr., Vol. 10, Pg. 142).

This is of particular significance because of the disparities in 
education, income, employment and housing. The black community, 
which is segregated from the white community in Northwest Ft. 
Lauderdale, has special needs. The Northwest quadrant of Ft. 
Lauderdale shares common political and socio-economic interests 
premised on these disparities, which are not shared by the rest of 
the City. These common needs give rise to the need for representatives who have an awareness of these common problems and 
who have a first hand understanding of the needs of the black 
community and whom black voters feel free to approach (Tr.Vol. 10, 
Pgs. 140-144, 149).

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Burke County has no residency requirement, "[a] 11 candidates could 
reside in Waynesboro, or in 'lily-white' neighborhoods. To that 
extent, the denial of access becomes enhanced."). United States v. 
Marengo County, supra, 731 F.2d at 1570 (Vote dilution case enhanced 
by "lack of provision for at-large candidates running from 
geographical subdistricts."); Jones v. City of Lubbock, supra, 727 
F.2d at 383 ("The lack of a subdistrict residency requirement has 
allowed residents of predominantly anglo areas to dominate City 
office.").

Indeed, the Trial Court notwithstanding its conclusion that no 
voting practices exist that enhance the opportunity for 
discrimination against black citizens, recognized the dilutive 
effect the lack of any residency requirement had on City elections 
("[A] residence requirement from five districts in the City with 
at-large voting...would almost guarantee the election of a black 
commissioner.") (RE,Op., Pg. 29 n. 1).

B. UNUSUALLY LARGE POPULATION SIZE
In analyzing the structure of the election system, factors to be 

analyzed include the significance of the "population of the 
district." United States v. Dallas County, supra, 739 F.2d at 1536, 
n. 6; United States v. Marengo County, supra, 731 F.2d at 1570 
(consideration of population and land area); David v. Garrison, 553 
F.2d 923, 930 (5th Cir. 1977) (Remand to determine whether "23,000" 
city population which constituted sole district in City's at-large 
election system was "large or small.").

Ft. Lauderdale's 1980 population size of 153,279 makes it the

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fifth largest city in Florida. This large population .size of
the City enhances "the problems faced by blacks seeking access to 
the political process." McMillan v. Escambia County, supra, 688 
F.2d at 1044 and n. 17.

The Trial Court has determined that a candidate for Ft. 
Lauderdale City Commission is more likely to win if "the candidate 
spends more money campaigning" (RE,Op., Pg. 42). Since blacks on 
the average earn approximately half of the amount whites earn, the 
population size and accompanying importance of campaign 
contributions contributes to dilution. United States v. Marengo 
County, supra, 731 F.2d at 1570 (Size of county coupled with reduced 
black income contributes to dilution.); Kendrick v. Walden, 527 F.2d 
44, 50 (7th Cir. 1975) ("[P]otential for dilution seems to increase 
as the size of the constituency increases.").

4. CANDIDATE SLATING PROCESS
The Trial Court concluded there was no candidate slating process 

in the City and that the Broward Citizens Committee is an 
"unofficial organization [which] simply furthers the interests of

40/

40/ Florida cities with a greater population than Fort Lauderdale 
are: Jacksonville (540,920); Miami (346,865); Tampa (271,523); and
St. Petersburg (238,647). See, Census of Population, 
Florida-General Population Characteristics, Vol. I, Table 14. As 
data obtained from the United States Census, it can be judicially 
noticed by the Court. See, F.R.E. 201(b)(2), U.S. v. United 
Brothers of Carpenters and Joiners of America, Local 169, 457 F.2d 
210 (7th Cir. 1972).

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candidates who are Republicans" (RE,.Op., Pgs. 49-50).
This Court has recognized that "where there is an influential 

official or unofficial slating organization, the ability of 
minorities to participate in that slating organization and to 
receive its endorsement may be of paramount importance. United 
States v. Marengo County, supra, 731 F.2d at 1546. (emphasis added)

The Trial Court's inquiry, which focused primarily on the 
partisan characteristics of the Broward Citizens Committee rather 
than the extent of access by blacks to the Committee's endorsement 
process and the Committee's degree of influence is in error.

Neither the partisan characteristics of an organization, White 
v. Regester, supra, 412 U.S. at 766-767, nor whether an organization 
is official or unofficial, eliminates what would otherwise 
constitute a slating process. United States v. Marengo County, 
supra, 731 F.2d at 1546; Perkins v. City of West Helena, supra, 675 
F.2d at 210 (1982) (Informal actions of all white business and civic 
association which provides financial and organizational support for 
white candidates impedes blacks' opportunity to participate fully in 
political process.).

The Trial Court's findings that the Broward Citizens Committee 
is a political organization that recommends and furthers the

41/

41/ The Trial Court's findings supporting its conclusion that the 
Broward Citizens Committee is not a candidate slating process as contemplated by this factor are: (a) it is a group that interviews
candidates but recommends only Republicans; (b) approval from the 
Broward Citizens Committee is not necessary before success is 
assured or enhanced in City elections; (c) black candidates who have 
run for office have not been Republicans; (d) the electoral success 
of Commissioner Virginia Young who did not receive the Committee's 
endorsement; and (e) the lack of evidence showing any black 
Republicans sought Committee's recommendation (RE,Op., Pgs. 49-50).

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interests of candidates in City Commission elections, when coupled
i± 2 /with the undisputed facts reflecting the Broward Citizens 

Committee’s all white membership and influence in recent elections, 
is a sufficient basis in fact - when considered in relation to the 
proper legal standards, White v. Regester. supra, 412 U.S. at 
766-767; United States v. Marengo County, supra, 732 F.2d at 1546 - 
for this Court to find as a matter of law that Plaintiffs have 
satisfied their burden of proof as to the "slating process" factor.

5. SOCIO-ECONOMIC STATUS
The District Court made several interrelated conclusions in 

addressing this factor (RE,Op., Pgs. 50-52). First. Judge Roettger 
concluded that evidence showing the effects on black citizens of 
discrimination in areas such as education, employment and health 
which hinder their ability to participate effectively in the 
political process is rendered "irrelevant as a practical matter"

42/ Former Mayor, now Congressman E. Clay Shaw, and the present 
Mayor, Robert A. Dressier, acknowledged that the Broward Citizens 
Committee made contributions and campaigned for candidates it 
endorsed (Tr., Vol. 11, Pg. 258; Dep. Pgs. 12-14). Both Shaw and 
Dressier viewed the Broward Citizens Committee endorsement as a 
positive factor in their campaign (Ibid.; Dep. Pg. 15), (Tr., Vol. 11, Pg. 282).

Indeed, four of the five City Commissioners who won in 1982 
elections had received the Broward Citizens Committee's endorsement 
(Ibid.). Candidates who have obtained the Committee's endorsement 
have utilized it in their campaign strategies. See, D.Ex. 6 - F, 
Candidate advertisements listing Broward Citizens Committee 
endorsement: (i) Richard A. Mills, Pgs. 2, 9, 21; (ii) Robert
Dressier, Pg. 3; (iii) Robert Cox, Pgs. 5, 16. Additionally, 
neither Mayor Dressier, a Committee member since 1980, nor 
Congressman Shaw, a member since 1970, were aware of a single black 
who had ever been a Committee member or had attended any meeting 
(Tr., Vol. 11, Pg. 25; Dep. Pgs. 19-20), (Tr., Vol. 11, Pg. 283).

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(emphasis added) since black voter turnout either exceeded or 
closely approximated white voter turnout in City elections between 
1971 and 1982 (Ibid.). Second, the Court concluded that the 
"effects of education discrimination did not affect the quality of 
black candidates" (Ibid, 51). Third, the Court acknowledged "there 
was one area which might conceivably affect participation in the 
political process [that being the] disparity in income among white 
residents vis-a-vis black residents" (Ibid. 52). While recognizing 
this disparity "conceivably could affect contributions," the Court 
observed "Art Kennedy [unsuccessful black candidate] had virtually 
no trouble securing contributions" (Ibid.). In sum, Judge Roettger 
concludes "[E]xcept as indicated above [apparently in reference to 
campaign contributions] there seems no effect in ability to 
participate equally" (Ibid.).

Judge Roettger's conclusion that the present day depressed 
socio-economic status of blacks in Ft. Lauderdale has virtually no 
effect on their "ability to participate effectively in the political 
process" because (a) blacks' voter turnout from 1971-1982 
approximated or exceeded white turnout; (b) four black candidates 
were educated; and (c) a sole black candidate in 1982 (Art Kennedy) 
received significant campaign contributions, departs from the legal 
standards applicable to these factors forged prior to amended 
Section 2.43/

43/ White v. Regester, supra, 412 U.S. at 768; Kirksev v. Board of 
Supervisors, supra, 554 F.2d at 145. Moreover, these findings are 
inconsistent with Congress' intent in amending Section 2, Sen. Rep. 
Pg. 29, n. 114; and is in conflict with this Court's post-amended 
Section 2 decisions. McMillan v. Escambia Countv. supra. 748 F.2d

(Footnote continued to next page)
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By concluding that their depressed socio-economic status does 
not hinder effective black political participation because black 
voter turnout approximates or exceeds white turnout, the Trial Court 
rejects this Court's teachings which explain that "[bjecause blacks 
are poorer and less educated they have less political influence than 
whites" United States v. Marengo Countv. supra, 731 F.2d at 1568; 
United States v. Dallas County. 739 F.2d at 1529, and undisputed 
facts which reflect depressed political participation by blacks in 
Ft. Lauderale. Jones v. City of Lubbock, supra, 727 F.2d at 383; 
Political Civil Voters Organization v. City of Terell. supra. 565 
F.Supp. at 342 (Recent increases in black voter registration rate 
does not preclude a finding these effects do not linger and impede 
minority access to the political process.).

Depressed black political participation in Ft. Lauderdale is 
evidenced by a multitude of facts including: (i) lack of black
elected officials; (ii) underrepresentation of blacks on City boards 
and committees and (iii) voting along racial lines. Rodgers v.

(Footnote continued from previous page)
at 1044; United States v. Dallas County, supra, 739 F.2d at 1537; 
United States v. Marengo County, supra, 731 F.2d at 1567-69.

The facts in this case show significant disparities between black 
and white citizens in areas such as income, education, employment or 
occupational status, and quality of living conditions. See, supra, 
P&» 5, n. 6. Additionally, the City's own planning documents 
indicate that blacks disproportionately live in the City's "slum and blighted areas." See, P.Ex. 18, Tab 7 (map).

As this Court has repeatedly recognized, in enacting the 1982 
amendment to Section 2, Congress determined that such socio-economic disparities show a denial of equal access to the political process 
and that there is no need to show a causal link between this lower 
status and black political participation. Sen. Rep. No. 97-417,
|U£ra, 29 n. 114; United States v. Dallas County Commission, supra,
/39 F.2d at 1537; United States v. Marengo County Commission, supra. 
731 F.2d at 1567-6.

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Lodge, supra, 456 U.S. at 625; McMillan v. Escambia County, supra,
688 F.2d at 968, n. 16; United States v. Marengo Countv. supra. 731 
F.2d at 1572 (The District Court's conclusion that the nearly 
complete lack of success of black candidates does not indicate a 
lack of effective access to the system is clearly erroneous.)447.

6. THE EXTENT TO WHICH MINORITY 
GROUPS HAVE BEEN ELECTED TO 
PUBLIC OFFICE IN THE CITY

Judge Roettger expressly indicated that in his view "this Factor 
is by far the most important of the nine listed by the Senate and the 
Court of Appeals" to extent that "if the minority group is having 
success at the polls" and "if the success exceeds its statistical 
electoral strength--then a strong showing in all other factors could 
scarcely justify relief to that group" (RE,Op., Pg. 53).

In analyzing this factor, Judge Roettger limited his inquiry to 
elections between 1970 and 1982 and reached the following 
conclusions: First, that black electoral success in Ft. Lauderdale
"would be comfortably above a proportional representation 
figure--even if that were not specifically proscribed by Congress" 
(Ibid., 61). Second, that the success rate of black candidacies of 
43% (3 of 7 black candidacies successful) exceeds the 36% success 
rate for white candidacies during the 1970-1982 time frame (27 of 75

44/ Additionally, the casual nexus between the depressed 
socio-economic status of blacks in Ft. Lauderdale and a depressed 
level of participation in the political process need not be proven, Sen. Rep. 29, n. 114; United States v. Marengo County, supra. 731 
F-2d at 1568-69; United States v, Dallas Countv. supra. 739 F.2d at 
1537. Nonetheless Plaintiffs have proven this relationship (Tr Vol 10, Pgs. 124-126).

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white candidacies successful) (Ibid.) 45/

In concluding that the undisputed evidence applicable to this 
factor fails to warrant a finding supporting dilution the Trial 
Court erred by disregarding the following facts: (a) that in all
City Commission elections between 1911 and 1985, only one black 
candidate, Andrew DeGraffenreidt, has ever been elected; (b) between 
1911 and 1985, there have been 16 unsuccessful black candidates 
beginning with Nathaniel Wilkerson in 1957; (c) based on census data 
between 1930 and 1980, the black population of Ft. Lauderdale has 
averaged approximately twenty-two percent. Census data indicate 
that in 1930 blacks comprised 23% of Ft. Lauderdale's population; in 
1940, 28.8%; in 1950, 23.4%; in 1960, 23.3%; in 1970, 14.6%; and in 
1980, 21% (P.Ex. 15, Tab 1).^6/

45/ What the City failed to point out, however, and what the Trial 
Judge failed to note, was that this could hardly have been 
unexpected, given that 94% (102 of 107) of the candidates (actually 
candidacies) over the time period were white. Given that only 29 
could have been elected, 72% of the whites had to lose (in fact, 
only 75% did). One black (DeGraffenreidt) had been elected and 
re-elected twice, while the other four black candidacies (including the latest effort by the only black ever elected) had ended in 
failure. The race of the candidates, in short, was hardly a 
"variable” in this analysis, and therefore could not be expected to account for who won or lost, even if it had been the only factor examined.
46/ By disregarding these facts and limiting the inquiry to a twelve 
year span, Judge Roettger failed to: (i) embrace the standards 
utilized repeatedly by this Court in determining "the extent to 
which blacks have been elected to office." United States v. Marengo 
County, supra, 731 F.2d at 1572 ("No black ever elected to School 
Board or County Commission" and "only two blacks [taking] office 
despite numerous candidacies."); United States v. Dallas County. 
supra, 739 F.2d at 1539 ("It [Trial Court] found that no blacks had 
been elected in modern [post-1965] times and that this determination 
supports a finding of dilution."); McMillan v. Escambia County 
IIII), supra, 748 F.2d at 1045 and n. 20 (Under at-large system no

(Footnote continued to next page)

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Notwithstanding, Judge Roettger's approach to this factor which 
leads to his conclusion that blacks in Ft. Lauderdale enjoy above 
proportional representation and black candidates enjoy a higher 
success rate than their white counterparts, the election of one 
black individual who held office for six years in all city elections

(Footnote continued from previous page)
black elected to County Commission and one elected to School 
Board.); City of Lubbock, supra. 727 F.2d at 383 ("No minority 
candidate has ever served on the Lubbock City Council."), and (ii) 
is in disregard of this Court’s admonition--which is exactly what 
has occurred in the context of Ft. Lauderdale--that "it is equally 
clear that the election of one or a small number of minority elected 
officials will not compel a finding of no dilution," United States 
v. Marengo County Comm'n, supra, 732 F.2d at 1572. (Emphasis added) See, also, Rogers v. Lodge. 458 U.S. 613, 623 (1982).

For additional post-1982 Section 2 Amendment cases addressing this principle, see, McMillan v. Escambia Countv. 638 F.2d 1239, 
1240-41 (5th Cir. 1981) (Dilution found where two blacks previously 
elected.); NAACP v. Gadsden County School Board. 691 F.2d 978, 983 
(Dilution found where a black previously elected.); Major v. Treen. 
574 F. Supp. 325, 339 (E.D. La. 1983) (Three Judge panel) (Dilution 
found where 15% of 70 elected officials are black); Gingles v. 
Edminston, 590 F. Supp. 345, 365 (E.D. N.C. 1984) (Three Judge Court) (Dilution found where between 1971 - 1982 at any given time 2 
- 4 blacks elected to House; from 1975-1982, 1-2 blacks elected to 
Senate; since 1982, all blacks elected to House.); Rybicki v. State 
Board of Elections of Illinois, 574 F. Supp. 1147, 1151 n. 5 (N.D. 
111. 1983) (Three Judge panel) (Violation found where "many" blacks 
previously elected including: sixteen aldermen, thirteen state representatives, five state senators, and one mayor.).

For pre-1982 Amendment cases, see, White v. Regester. 412 U.S. 
755 (1973) affirming Graves v. Barnes. 343 F. Supp. 704, 726 (w.D. 
Tex. 1972) (Dilution found where two blacks previously elected); 
Zimmer v. McKeithen, 485 F.2d 1297, 1307 (5th Cir. 1973) (en banc) 
(Dilution found where three blacks previously elected) aff'd per 
curiam sub, nom. East Board of Supervisors of Hinds County. Miss., 
554 F.2d 139, 143 (5th Cir. 1977) (en banc) (One of the factors 
indicative of denial of access to the political process is "a 
historical pattern of a disproportionately low number of minority 
group members being elected to the legislative body."); Wallace v. 
House, 515 F.2d 619, 623 (5th Cir. 1975) (Dilution found where one 
black previously elected.); and Steward v. Waller. 404 F. Supp. 206, 
215 (N.D. Miss. 1975) (ThreeJudge panel) (Dilution found where 
blacks constituted 1% of the council members elected in cities of a certain size.).

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between 1911 through 1985 compels a finding that this factor be 
weighed in favor of a finding of dilution.

7. UNRESPONSIVENESS
While recognizing that the factor pertaining to ’’whether there 

is a significant lack of responsiveness of the elected officials to 
the needs of the minority group members’’ deals "more exclusively 
with the issue of intent," the Trial Court nonetheless addressed it 
at length (RE,Op., Pgs. 53-59).

The Trial Court's conclusions as to this factor are based on an 
erroneous view of the law. Specifically, Judge Roettger ignored 
this Circuit’s clear instruction that under Section 2, 
unresponsiveness is of limited importance since the Voting Rights 
Act "protects the access of minorities not simply to the fruits of 
government but to participation in the process itself." United 
States v. Marengo County Commission, supra, 731 F.2d at 1572. See 
also, NAACP v. Gadsden County, supra, 691 F.2d at 983; McMillan

47/ After reviewing evidence of (a) the City's efforts to comply 
with a 1980 federal court order requiring Defendants to increase 
hiring and promotional opportunities for blacks in the City's- police 
and fire departments, which comprise approximately one-half of the 
City's work force, United States v. City of Ft. Lauderdale, supra, 
(P.Ex. 23), (RE,Op., Pgs. 54-57); (b) the City's provision of 
sanitary sewers (Ibid., Pgs. 55-56); (c) the City's code enforcement 
efforts in the northwest section of the City since 1982 (Ibid.. , Pg. 
57); (d) the City's provision of park and recreational facilities 
used by both black and white citizens; and (e) the City's 
expenditure of federal funds through the Community Development Block 
Grant Program in the northwest section of the City (Ibid., Pg. 58), 
Judge Roettger concluded that the "[R]esponsiveness of the City is 
hardly perfect, but most of the inequities that exist are from 
difficulties in recruiting competition in the police department" and 
that the "[C]ity has made intensive efforts, certainly in the last 
10 to 15 years, to correct any imbalances and has been 
overcompensating during that period of time in many programs in an 
effort to improve and correct any imbalance" (Ibid.., Pgs. 58-59).

•66-



v.Escambia County, supra, 638 F.2d at 1249 ("Whether current office 
holders are responsive to black needs 'is simply irrelevant; a slave 
with a benevolent master is nonetheless a slave.'").

Additionally, to the extent that the evidence adduced at trial 
and reviewed by the Trial Court is relevant, it weighs in favor of 
finding dilution. First, in concluding that the City has provided 
equal employment opportunities, Judge Roettger restricted his review 
of the evidence to the post-1980 period, during which the City was 
required to comply with a federal court order to increase employment 
opportunities for blacks (P.Ex. 23) while disregarding the City's 
three decades of resistance to increased black employment, supra,
Pg. 24; Appendix 1, Pgs. 5a-8a. Second, the allocation of CDBG 
funds to the northwest sector of the City does not signify 
responsiveness by the City since the funds are "derived [solely] 
from federal programs aimed at economically depressed areas." Jones 
v. City of Lubbock, supra, 727 F.2d at 382. Indeed, the City's 
expenditure of these federal funds hardly refutes clear evidence 
that the City of Ft. Lauderdale neglected the needs of its black 
citizens. Perkins v. City of West Helena, Ark., supra, 675 F.2d 
201, 210, n. 16 (8th Cir. 1981), aff»d. 459 U.S. 801 (1982). Third, 
present City efforts to improve park and recreational facilities and 
Code enforcement in the black community are in part necessitated by 
the City's prior history of egregious neglect, supra, Appendix 1, 
Pgs. la-8a. Fourth, the underrepresentation of blacks on 
policy-making advisory boards and committees is evidence of 
unresponsiveness, supra, Pg. 23. See„ e.g., McMillan v. Escambia 
County. supra, 688 F.2d at 968, n. 16. Fifth, present racial 
polarization in City elections, supra, Pgs. 28-35, is strong

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evidence that elected officials are not meeting the needs of Ft. 
Lauderdale blacks. United States v. Marengo County. 731 F.2d at 
1373; NAACP v. Gadsden County, supra, 691 F.2d at 983.^®^

8. TENUOUSNESS
The Trial Court, while recognizing this factor "[T]he ninth 

factor deals with the tenuousness, if any, of the policy underlying 
the use of any voting qualification practice or procedure" concluded 
that "[T]here is no questionable voting prerequisite or procedure 
involved in this case" because "[T]he City has had the at-large 
system since its creation in 1911" and because the Court finds "that 
its election policy was [neither]...adopted or...maintained to 
discriminate against minority citizens" (RE,Op., Pg. 59).

The Trial Court’s analysis of this factor is legally in error.
It addresses the pre-amended Section 2 standard of intent, as it 
focuses upon whether the City had at one time "adopted or 
maintained" the at-large system in order "to discriminate against 
minority citizens" (Ibid.).

Additionally, Judge Roettger's review of the tenuousness factor 
disregards recent amendments to the Florida Constitution and the

48/ In adopting the view that the City of Ft. Lauderdale had been 
responsive to the needs of its black citizens (RE,Op. Pg. 59) (The 
City "has been overcompensating...in an effort to improve and 
correct any imbalance."), the District Court ignored virtually all 
City actions more distant than three years before trial and assumed 
that any effort made, even if under the threat of a contempt 
citation or merely complying with federal requirements regarding the 
distribution of federal funds, amounted to a showing of 
responsiveness. In assessing this evidence the District Court 
applied an erroneous legal standard, finding responsiveness based on 
evidence of essentially coerced compliance with the law, and using 
that finding as a demonstration of a lack of racial motivation on 
the part of the City, a conclusion made irrelevant under Section 2 of the Act.

-68-



state statutes designed to reduce multimember and at-large election
procedures with the expressed purpose of ’’improving the opportunity
of minority groups, especially blacks, to win legislative seats"
(P.Ex. 17, Tab 1) (Tr., Vol. 10, Pg. 206). First, in 1982 the method
of electing members to the Florida legislature was changed from
multimember to single member districts, §§10.101-10.103, Fla.
Statutes (1983), which the Florida Supreme Court recognized at that
time would "substantially increase the opportunity for minority
partici- pation in the political process in the state." In Re

49 /Apportionment Law, etc., 414 So.2d 1040, 1052 (Fla. 1982).
Second, in 1984, the Florida Constitution (Fla. Const., Art. 8, 

§5) and statutes mandating at-large elections for county commissions 
and school boards were amended to permit county commissioners 
(§124.011, FI. Statutes) and school boards (§230.105, Fla. Statutes) 
the option of shifting from what had been mandatory at-large election 
systems to single member districts (P.Ex. 17, Tabs 2 and 3) (Tr.,
Vol. 10, Pgs. 208-209).50/

Ft. Lauderdale's continued utilization of an at-large system is 
contrary- to recent state policy initiatives aimed at increasing the 
participation of Florida's black citizens in the political process.

49/ The Florida Supreme Court's observation that single member 
district legislative seats would increase minority representation in 
the florida legislature proved correct. In the first statewide 
election following the change to single member legislative districts 
in November, 1982, blacks were elected to the State Senate for the 
first time since the Reconstruction period, and in the Florida House 
of Representatives, the number of blacks doubled (Tr.Vol. 10, Pg. 207)
50/ This Court has previously recognized the mandatory requirements 
for at-large elections for general and primary elections for the 
County Commissions in Florida. McMillan v. Escambia County (II), 
supra, 688 F.2d at 962, n. 4, and has determined that the legislation 
requiring at-large elections for Florida School Boards was racially 
motivated, McMillan v. Escambia County (I), supra, 638 F.2d at 1245-46

69-



RELIEF AND CONCLUSION
Plaintiffs request this Court to reverse the District Court and 

hold that the record shows that the City of Ft. Lauderdale's at-large 
election system violates the results test under the amended Section 2 
of the Voting Rights Act and to accordingly enter judgment for 
Plaintiffs and remand for the devising of a remedy. United States v. 
Marengo County, supra, 731 F.2d at 1574.

Plaintiffs recognize that "where a district court fails to make 
necessary findings, a remand for entry of such findings is the usual 
recourse for an appellate court." Matter of Legal, Braswell Government 
Securities, 648 F.2d 321, 326 n. 8 (5th Cir. 1981) (Unit B). However, 
since much of the evidence in the record is documentary and sufficient 
facts to support this Court's judgment are undisputed, supra, Pg. 22, 
n. 14, in the record, "a complete understanding of the issue may be 
had from the record on appeal [and thus] remand to the dis- trict 
court is unnecessary." Armstrong v. Collier, 536 F.2d 72, 77 (5th 
Cir. 1976) citing Withrow v. Larkin, 421 U.S. 35, 45 (1975).

BENJAMIN F. LAMPKIN
General Counsel for SCLC

Of Counsel: JULIUS L. CHAMBERS LANI GUINTER 
ERIC SCHNAPPER 
CLYDE E. MURPHY

of Broward County 
P.0. Box 10876 
Ft. Lauderdale, FL 33310

NAACP LEGAL DEFENSE AND
EDUCATION FUND, INC. 

99 Hudson Street 
New York, NY 10013

ATTORNEYS FOR PLAINTIFFS-APPELT.ANTS
-70-



IN THE UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT
NO. 85-5288

ALLIE K. MC CORD, JOSEPH POWELL, JR., 
ROSE MARIE SAULSBY, ILMA M. JAMES, 
MARGARET HARDEN, ALZEN F. FLOYD, SR., 
THE SOUTHERN CHRISTIAN LEADERSHIP 
CONFERENCE (SCLC) OF BROWARD COUNTY, 
FLORIDA, on behalf of themselves and 
all others similarly situated,

Appellants-Plaintiffs,
v s .

CITY OF FORT LAUDERDALE, FLORIDA;
ROBERT A. DRESSLER, Mayor; ROBERT 0.
COX, Commissioner; JAMES NAUGLE, 
Commissioner; RICHARD A. MILLS, JR., 
Commissioner; JOHN E. RODSTROM, JR., 
Commissioner, and their successors and 
agents in their official capacities,

Appellees-Defendants.
_________________________________ /

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the 
foregoing Brief for Plaintiffs-Appellants has been mailed to 
the following counsel of record:

MARK R. BOYD, ESQ.Walsh, Theissen & Boyd, P.A. 
633 S.E. Third Avenue 
Suite 402
Ft. Lauderdale, FL 33301

VINCENT R. FONTANA, ESQ. 
420 Lexington Avenue 
New York, New York 10170

ATTORNEYS FOR PLAINTIFFS- 
APPELLANTSDATED: 8 July, 1985



APPENDIX 1

OUTLINE OF THE HISTORY 
OF RACIAL DISCRIMINATION IN FORT LAUDERDALE



APPENDIX 1
OUTLINE OF THE HISTORY 

OF RACIAL DISCRIMINATION IN FORT LAUDERDALE

Undisputed historical evidence reflected decades of racial 
discrimination against black citizens in Ft. Lauderdale.

A. THE TRIAL COURT'S FINDINGS
The evidence shows, as this District Court found and this Court 

has recounted in various decisions, that Florida has a long history 
of discriminating against black citizens by depriving them 
participation in the political process. See, e.g., McGill v.
Gadsden County Commission, 535 F.2d 277, 279 (5th Cir. 1976) 
(Widespread disenfranchisement of blacks by early 1900's); McMillan 
v. Escambia County, Florida, 638 F.2d 1239, 1244 (5th Cir. 1981) 
(Escambia I) (By early 1900's "the white citizens of Florida had 
adopted various legislative plans either denying blacks the vote 
entirely or making their vote meaningless"); NAACP by Campbell v. 
Gadsden County, 691 F.2d 978, 982 (11th Cir. 1982) ("From 1901 
through 1945, the contrivance of the all-white primary in Florida 
effectively denied blacks access to the only election that had 
substantial meaning").

2. The District Court made other findings of racial 
discrimination in Ft. Lauderdale: (a) a poll tax was required to
vote in City elections through 1929 (RE,Op., Pg. 36); (b) that City 
ordinances creating a formal "Negro District" restricting blacks to 
living in the northwest area of the west of the railroad tracks were

-la-



law from 1922 through 1946 (Ibid., 37); (c) that during the 1940's 
the black high school was periodically closed so the children could 
work in the agricultural fields (Ibid.); (d) that during the 1950's 
blacks unsuccessfully petitioned the City to use the municipally 
owned golf course which the City sold in response to court ordered 
integration (Ibid.„ 38 n. 3); (e) City Ordinance 6247 which 
expressed fear of adverse tourist reaction if blacks were allowed 
access to the public golf course (Ibid.); and (f) petitions by black 
citizens - spanning literally 4 decades - requesting that the City 
employ black police officers (Ibid.).

B. THE ADDITIONAL HISTORICAL 
EVIDENCE

OF RACIAL DISCRIMINATION

At Ft. Lauderdale’s very inception, the City's initial charter 
in 1911 required that poll taxes must have been paid for the two 
years prior to initial City elections in order to qualify for voting 
(P. Ex. 2, Fact 7). A 1922, City Ordinance No. 140 had created a 
legal "color line" by segregating blacks into the northwest area of 
the City, west of the railroad tracks. The City's de jure 
segregation was refined in 1926, by Ordinance No. 407, which divided 
the City into five residential districts (P. Ex. 3, Fact 8; Ex. 6, 
Tab C), including a "Negro District." Fort Lauderdale's segregation 
laws were enforced as evidenced by the 1926 City Commission order 
advising the City Manager to take steps to have the "Negroes removed 
from their present location" (P. Ex. 3, Fact 18). During the 
1920's, Fort Lauderdale's white citizens actively sought to deny

-2a-



blacks equal societal participation (Tr. Vol. 9, Pg. 421) as 
evidenced by a 1926 meeting of a thousand members of the Ku Klux 
Klan members who paraded through the City of Fort Lauderdale and 
burnt crosses in Stranahan Park while several thousand spectators 
looked on (P. Ex. 14B, November 26, 1926).

In 1936, the Commission replaced segregation Ordinance No. 407 
with Ordinance No. 820 (P. Ex. 3, Fact 26), which redefined the 
boundaries of the ’'Negro District” (Residence E district) (P. Ex. 3, 
Fact 26) and literally wedged all Fort Lauderdale blacks into an 
area between the two sets of tracks in the northwest section of the 
City (P. Ex. 6, Tab E). In 1939, the segregation law was amended 
again (Ord. No. 983) (P. Ex. 3, Fact 34). However, just five months 
later, in response to over 500 white property owners who protested 
"against the encroachment of Negroes,” Ordinance No. 983 was 
repealed and Ordinance No. 1005 restored the "Negro District” to its 
earlier boundaries (P. Ex. 3, Fact 39). By the 1930's, blacks’ 
medical and health facilities were maintained separately from whites 
(P. Ex. 3, Facts 25, 28, 32); blacks could not use City recreational 
facilities (colored ball team prohibited from using municipal park; 
blacks denied use of beaches), (P. Ex. 3, Facts 14 and 23); and were 
denied improvements in the "Negro District” (requests on improved 
services and enforcement of sanitary code denied) (P. Ex. 3, Fact 36 
and Pg. 11B-D attached to Fact 31).)

In 1941, two additional ordinances had redefined the "Negro 
District" (P. Ex. 3, Fact 45) (Ord. No. C-48); (P. Ex. 3, Fact 46), 
(Ord. No. C-51). In April, 1942, City officials discussed the

-3a-



acquisition of land for a buffer area which if possible could 
"eventually create a buffer entirely surrounding the colored area" 
(P. Ex. 3, Fact 48) which the Commission recognized as very 
important in solving the problems permanently" (P. Ex. 3, Fact 51).

In 1945, blacks requested judicial relief, challenging the 
school system's practice of closing the black Dillard School during 
harvest season. Clarence C. Walker Civic League v. Board of Public 
Instruction of Broward County, 154 F.2d 726 (5th Cir. 1946). In 
January, 1946, the Negro Businessman's Improvement Association, 
unsuccessfully sought the City Commission to build a Negro park (P. 
Ex. 3, Fact 55). Later, in April, 1946, the Negro Business and 
Professional Hen's League petitioned the Commission to hire Negro 
patrolmen for the black community (P. Ex. 3, Fact 56). Two months 
later, the Negro Ministerial Alliance made the same request (P. Ex. 
3, Fact 58). The City refused (P. Ex. 3, Fact 61).

The residency requirement for City Commission elections was 
eliminated in the 1947 Charter (P. Ex. 2, Fact 10). On March 11, 
1947, the Commission considered a proposed election plan in which 
three of the five districts would each include "one-third of the 
zoned residence 'E'area Negro District." After being advised that a 
legal district could be based on population only, and that the 
"Negro District" could not legally be divided into three districts, 
the Commission withdrew the proposal for five commission districts 
from the ballot (P. Ex. 3, Fact 67).

The segregation ordinance (then Chapter 198 of the City's Code 
of Ordinances) was not repealed until 1948 when the City finally

-4a-



recognized its questionable constitutionality (P. Ex. 3, Fact 62),
(P. Ex. 14B, March 17, 1947). Throughout the 1940’s, black citizens 
and organizations unsuccessfully requested that a black be appointed 
to the City's police department (P. Ex. 3, Facts 56, 58, 60, 61. 63, 
66, 69). It was not until September, 1952 that the City hired its 
first black police officer (P. Ex. 14B, September 4, 1952).

In 1951, the County Health Director noting a high incidence of 
tuberculosis in the black section due to over-crowding and poor 
sanitary conditions, blamed the City for the slum conditions in the 
Negro section, as the City had failed to enforce its laws (P. Ex. 
14B, September 11, 1951). The Fort Lauderdale News criticized the 
1954 Brown v. Board of Education decision and predicted problems for 
the local tourist industry if public facilities were forced to 
desegregate (P. Ex. 14B, May 25, 1954).

On November 19, 1955, the City adopted Ordinance No. 61-55, in 
which it recognized the similarity of race relations in Fort 
Lauderdale to that throughout the South and declared that any 
desegregation of municipal facilities would not be taken voluntarily 
(P. Ex. 6, Tab 5, Ord. 61-55). In this Ordinance, the 
City recognized that: (a) Fort Lauderdale's racial pattern is a part 
of a larger pattern which has prevailed in much of the United States 
for generations; (b) many Fort Lauderdale citizens do not have a 
liberal view on segregation; (c) the City Commission did not seek 
responsibility to desegregate facilities, but viewed it as a burden 
and duty; (d) for the time being, the use of municipal facilities

-5a-



should be maintained in the status quo (P. Ex. 6, Tab 5, Ord. No. 
61-55, Section 1).

In January, 1957, the City Commission rated the continued 
racially segregated operation of the City's golf course and Country 
Club as a "highlight” of the Commission's 1955-56 fiscal year's 
accomplishments (P. Ex. 19B, January 20, 1957). On November 1,
1957, this Court affirmed the District Court's ruling that the 
City's refusal to allow blacks' use of public facilities violated 
the Fourteenth Amendment and enjoined the City's segregation 
policy. Moorehead v. City of Fort Lauderdale, 152 F. Supp. 131 
(S.D. Fla. 1957), aff'd per curiam, 298 F.2d 599 (5th Cir. 1957).
In response to these court orders, the City sold the golf course (P. 
Ex. 3, Fact 99, 95) in order to avoid integration.

During the 1960's, blacks repeatedly and unsuccessfully 
requested the City Commission to seek federal urban renewal funds to 
improve slum conditions within the City (P. Ex. 3, Facts 125, 126). 
In 1967, the NAACP initiated litigation to compel to the City to 
obtain federal urban renewal funds for black areas (P. Ex. 19B,
March 31, 1967). In 1973, unsuccessful black candidate for City 
Commission, Thomas Reddick, recommended to the Charter Revision 
Board Committee that commissioners run from districts rather than 
the City at-large (P. Ex. 10, Fact 7, Pg. 2). In 1975, the only 
black ever elected to the City Commission, Andrew DeGraffenreidt, 
advocated districting for City elections (P. Ex. 10, Fact 10). Each 
proposal was rejected.

-6a



In the 1950's and early 1960’s blacks continued their 
unsuccessful efforts spanning four decades to gain access to city 
beaches. In 1926, a delegation of Negro citizens requested a 
district for ocean beach use. This request was referred to the City 
Manager (P. Ex. 3, Fact 9). In 1927, Negroes' use of the beach 
north of Las Olas Boulevard was cited as a major problem by City 
Manager (P. Ex. 14B, August 17, 1927). In 1930, the Commission 
ordered the Police Chief to regulate Negro bathing within city 
limits (P. Ex. 3, Fact 20). In 1932, the Commission warned of the 
growing Negro menace on our beaches (P. Ex. 14B, July 12, 1932). In 
1946, the Colored Business and Professional Men's League again 
requested a Negro beach (P. Ex. 3, Fact 59). In 1952, the 
Commission acknowledged Negroes interested in obtaining a beach (P. 
Ex. 3, Fact 79).

In 1953, Negro community spokesman Dr. Mizell asked the City to 
provide a beach for its Negro citizens (P. Ex. 3, Fact 81) anywhere 
in the county as long as it is centrally located and accessible (P. 
Ex. 14B, February 9, 1954). In 1956, Fort Lauderdale's Mayor 
expressed concern that opening beaches to Negroes would be 
disastrous (P. Ex. 14B, December 20, 1956). In 1961, the local 
NAACP contemplated litigation to gain access to City beaches (P. Ex. 
148, August 6, 1961). Through the mid-1960's, the City's beaches 
remained segregated (P. Ex. 3, Fact 114).

In 1959, the black community complained to the Commission about 
the absence of Negroes on the police force (P. Ex. 3, Fact 99). In

-7a-



1963, the Bi-Racial Advisory Board requested that a "reasonable 
number" of Negroes be hired as policemen (P. Ex. 3, Fact 116). 
discrimnation remained unresolved until 1980 when the federal 
government sued the City of Ft. Lauderdale for its racially 
discriminatory employment practices. See, supra, Pg. 29.

This

-8a-



APPENDIX 2

BI-VARIATE REGRESSION ANALYSIS 
[Plaintiffs' Exhibit 25, Table 2]



TABLE 2
REGRESSION ANALYSIS OF SUPPORT 
RECEIVED BY BLACK CANDIDATES.

Election

% Vote Received 
by Black Candi­
dates per precinct/% Black 
Registered Voters 
Per Precinct

% Vote Received 
by Black Candi­
dates per precinct 
by turnout ratio/ 
Per Precinct

R2Both

1) 1957-Primary .99 [Not Applicable] [N/A]

2) 1963-General . 84 [N/A] [N/A]

3) 1971-Primary .96 .95 .98

4) 1971-General .98 .98 .99

5) 1973-Primary .98 .97 .99

6) 1973-General .99 .99 .99

7) 1975-Primary .89 .92 .94

8) 1975-General .94 .91 .95

9) 1977-Primary .91 .89 .95

10) 1977-General .90 .95 .97

11) 1979-Primary .90 .86 .91

12) 1979-General .92 .92 .96

13) 1982-Primary 
(Alston) .81 .51 .82

14) 1982-Primary 
(Kennedy) .87 .83 .93

15) 1982-Primary 
(both Alston 
Kennedy)

and .91 .77 .93

16) 1982-General 
(Alston) .87 .72 .87

17) 1982-General 
(Kennedy) .91 .91 .96

18) 1982-General 
(both Alston
Kennedy)

and
.92 .88 .95

-2a-



APPENDIX 3

RANKING OF BLACK CANDIDATES BY 
PRECINCT IN CITY COMMISSION ELECTIONS 

(1957, 1963, 1971-1982)



TABLE 3

RANKING OF BLACK CANDIDATES BY PRECINCT 
IN CITY COMMISSION ELECTIONS 

1957, 1963, 1971-1982

Number of Precincts 
That Black Candidate
is Within Top 10 in Order in Which Black Overall Poaition

Total Number Primary/or Top 5 in Candidate Finished Black Candidate
Election__________Black Candidate of Candidates General Election___________in Black Precincts________ Placed in Election

WhiteV Black^/
Precincts Precincts

1 . 1957 Primary Wilkerson 24 0 of 33 3 of 3 1st in all 3 Precincts 12
2. 1963 Primary Reddick 25 0 of 47 3 of 3 1st in all 3 Precincts 103. 1963 General Reddick 10 0 of 47 3 of 3 1st in all 3 Precincts 10
4 . 1971 Primary Hastings 20 8 of 51 7 of 7 1st in all 7 Precincts 6
5. 1971 General Hastings 10 0 of 52 7 of 7 1st in all 7 Precincts 7
6. 1973 Primary DeGraffenreidt 31 U  of 54 6 of 6 1st in all 6 Precincts 5
7. 1973 General DeGraffenreidt 10 5 of 54 6 of 6 1st in all 6 Precincts 5
8 . 1975 Primary DeGraffenreidt 19 59,of 63 5 of 5 1st in all 5 Precincts 3
9. 1975 General DeGraffenreidt 10 50 of 63 5 of 5 1st in all 5 Precincts 5
10. 1977 Primary DeGraffenreidt 18 36 of 63 5 of 5 1st in all 5 Precincts 4
11. 1977 General DeGraffenreidt 10 29 of 63 5 of 5 1st in all 5 Precincts 5
12. 1979 Primary DeGraffenreidt to 59 of 64 5 of 5 l8t in all 5 Precincts 3
13. 1979 General DeGraffenreidt 8 16 of 64 5 of 5 1st in all 5 Precincts 5* *
14. 1982 Primary Alston 11 0 of 62 6 of 6 2nd in Precinct 34; (tied) 9

3rd in other 5 Precincts
' 15. 1982 General Alston 10 0 of 63 6 of 6 3rd in all 6 Precincts 10
16. 1982 Primary Kennedy 11 34 of 62 6 of 6 1st in all 6 Precincts 4
17. 1982 General Kennedy 10 13 of 63 6 of 6 . 1st in all 6 Precincts 6

1/ White precincts in 1971-1975 elections are defined as those having more than 90% white registered voters; in 1977 more 
than 87%; in the 1979 primary, more than 73% and in the runoff, 70%. In 1982 in both primary and runoff 70%; in 1957, moi 
than 90% and in 1963 more than 78%.
2/ Black Precincts are defined as those having more than 90% black registered voters during 1971-1979. In 1982, more thai 
74% and in 1957 and 1963, more than 90% dnce again.
*Top 4 were elected in 1979 General Election.

-3
a-



APPENDIX 4

RACIAL POLARIZATION INDEX 
[Plaintiffs* Exhibit 38)



POLARIZATION INDEX*** OF 
RACIALLY POLARIZED VOTING: 

APPLICATION OF BULLOCK REPORT DATA

ELECTION BLACK CANDIDATE
PERCENTAGE OF BLACKS* WHO 
VOTED FOR BLACK CANDIDATE (MEAN)

PERCENTAGE OF WHITES WHO** *** 
VOTED FOR BLACK CANDIDATES INDEX

1 . 1971 Primary Hastings 95% 29.1% 65.9

2. 1971 General Hastings 98% 31.9% 66.1

3. 1973 Primary DeGraffenreidt 94% 21.1% 72.9

4. 1973 General DeGraf fenreidt 97% 32.6% 64.4

5. 1975 Primary DeGraffenreidt 88% 40.9% 47.1

6. 1975 General DeGraffenreidt 95% 45.0% 50.0

7. 1977 Primary DeGraffenreidt 95% 34.5% 60.5

8. 1977 General DeGraf fenreidt 95% 39.6% 55.4

9. 1979 Primary DeGraf fenreidt 92% 41.2% 50.8

10. 1979 General DeGraffenreidt 92% 37.4% 54.6

11. 1982 Primary Alston 37% 13.3% 23.7

12. 1982 Primary Kennedy 95% 38.1% 56.9

13. 1982 General Alston 31% 10.2% 20.8

14. 1982 General Kennedy 95% 31.0% 64.0

Source: *Pgs. 25-36 (Bullock Report)
**Pgs. 37-39 (Bullock Report)

***Polarlzation Index Calculated by subtracting the percentage 
of blacks who voted for black candidates from the percentage 
of whites who voted for white candidates only.

4
a-